Constitutional reformers need to tackle six key questions about the regulation of digital campaigning

Today marks the second day of the Unit’s conference on the Johnson government’s constitutional reform agenda, for which free tickets remain available. One of today’s speakers, Kate Dommett, argues that the government’s proposals to tackle the challenges posed by digital campaigning are far from comprehensive, leaving many unanswered questions for future governments to address.

Five years on from the Brexit referendum and the Cambridge Analytica scandal that emerged in its wake, the government is poised to publish its Electoral Integrity Bill. Proposing ‘significant changes to the electoral and democratic system’, it could be presumed that Boris Johnson’s government is about to enact an ambitious programme of constitutional change that will update electoral systems to the digital age. Yet, from the details available so far – including a new announcement this week – it seems Johnson’s government is failing to address six critical questions about digital campaigning, leaving considerable room for further reform.

The rise of digital technology in campaigning

The rise of digital campaigning has been a slow and steady phenomenon in UK elections, but in recent years there has been significant attention paid to the need for electoral reform. The current regulation governing electoral campaigning can be found in the Political Parties, Elections and Referendum Act (PPERA) that was passed in 2000. Since then the adoption of websites, social media profiles and, more recently, online advertising by electoral campaigners has raised questions about the suitability of existing legislation. Indeed, a range of parliamentary committees, civil society bodies, academics and even digital companies such as Facebook, have asserted a need for urgent digital campaigning regulation.

Publishing a report devoted to digital campaigning in 2018, the Electoral Commission has been at the forefront of these debates. Its analysis revealed the rapid rise of digital tools in elections, showing increasing amounts are being spent on digital advertising. Updating its statistics to include the last election, Figure 1 (below) shows that spending on digital advertising has increased to around £7.5 million, and now represents a significant proportion of election campaign spend.

Figure 1: Electoral Commission spending return declarations related to advertising and digital advertising 2014-2019
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Online harms to democracy: the government’s change of approach

Two years after the publication of the government’s Online Harms white paper, the government has published its final consultation response. Its commitment in the white paper to legislate to prevent online harms to democracy has disappeared, to the frustration of many inside and outside parliament. Alex Walker reflects on the government’s decision to ‘abandon the field’ and argues that a laissez-faire approach could lead to negative consequences.

It is expected that the Queen’s Speech on 11 May will include the government’s long-awaited Online Safety Bill. This will be a major piece of legislation with significant implications for the regulation of digital technology companies in the UK. However, when it is introduced it now seems highly unlikely that it will encompass measures to prevent harms to democracy, as was initially indicated.

The Online Harms white paper published in April 2019 set out a position that recognised the dangers that digital technology could pose to democracy and proposed measures to tackle them. This was followed by an initial consultation response in February 2020 and a full response in December. In the course of the policy’s development, the democracy aspect of the proposals has disappeared. The government now points instead to other areas of activity. This represents a shift away from the ambition of the white paper, which promised to address online harms ‘in a single and coherent way.’

Online Harms white paper: April 2019

The white paper first put forward the government’s intention for a statutory duty of care that would make companies responsible for harms caused on their platforms. This would include illegal harmful content, such as child abuse and terrorist material, but also some forms of harmful but legal content, including disinformation and misinformation. The white paper explicitly framed some of its proposals for tackling online harms in relation to the consequences for democracy. It detailed some of the harms that can be caused, including the manipulation of individual voters through micro-targeting, deepfakes, and concerted disinformation campaigns. It concluded that online platforms are ‘inherently vulnerable to the efforts of a few to manipulate and confuse the information environment for nefarious purposes, including undermining trust’. It recognised that there is a distinction to be drawn between legitimate influence and illegitimate manipulation.

The white paper also set out what the government expected to be in the regulators’ Code of Practice, and what would be required to fulfil the duty of care. This included: using fact-checking services, particularly during election periods; limiting the visibility of disputed content; promoting authoritative news sources and diverse news content; and processes to tackle those who misrepresent their identity to spread disinformation. It stated that action is needed to combat the spread of false and misleading information in part because it can ‘damage our trust in our democratic institutions, including Parliament.’

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The origins of the Cabinet Office Constitution Unit (1974–79): documenting the pitfalls of constitutional reform

In 1974, the Cabinet Office established a ‘Constitution Unitfollowing a difficult birthing process, which operated until the election of the Thatcher government in 1979. It was this Unit that inspired our own founding Director, Robert Hazell, when naming the newly-formed Constitution Unit 25 years ago. As part of this latter Unit’s 25th anniversary, Joseph Ward examines its earlier namesake, its founding and work, and what lessons we can learn from its role within government.

The 1970s was a decade marked by rising distrust in Britain’s political institutions. Intransigent governing problems, from inflation to nascent nationalism, fuelled a narrative that Britain was in crisis. Commentators in both academia and the press talked of a crisis of ‘governability’, with the state seemingly unable to keep pace with the demands placed on it by the public. 

In response to these trends, the Wilson government(s) of 1964–70 and 1974–76 instigated a series of constitutional reform measures. After creating the Kilbrandon Commission on the Constitution in 1969, Wilson sought to revisit the findings of the inquiry once returned to government in 1974, creating a bespoke Constitution Unit within the Cabinet Office to implement proposals for devolution to Scotland and Wales in particular. This ‘Constitution Unit’ was the conscious inspiration for the name adopted by UCL’s Constitution Unit when it was founded by Professor Robert Hazell in 1995, and which is currently celebrating its 25th anniversary

This blog post examines a selection of the Constitution Unit records held at the National Archives to document how the unit came about and to consider the struggles within the state over its remit. The political turbulence of that period, especially after James Callaghan succeeded Harold Wilson in 1976, presented the Unit with many challenges, as did the magnitude of its task. The post concludes with some reflections on the origins of the Unit to consider any lessons it might hold for constitutional reform in the contemporary context.

Foundations: The Kilbrandon Commission on the Constitution

In response to significant by-election wins for Plaid Cymru and the Scottish Nationalists in the late 1960s, Harold Wilson set up a Royal Commission on the Constitution in 1969, tasked with examination of ‘the present functions of the central legislature and government in relation to the several countries, nations and regions of the United Kingdom’ (Cmnd. 5460: 32). Its course was characterised by turbulence and disagreement: the commission took 4.5 years to report, more than one member resigned before it completed its work and the initial Chairman, Lord Crowther, died in 1972 midway through the inquiry. 

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The Intelligence and Security Committee and its role in democratic accountability

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Dominic Grieve, former Chair of the Intelligence and Security Committee, discusses whether or not reform of the committee is desirable or sensible following the dual controversies of the delayed release of its report on Russia and the government’s unsuccessful attempt to whip committee members into supporting its choice of Chair.

The recent controversy over the election of a new Chair for the Intelligence and Security Committee of Parliament (ISC) and the longer running saga of the failure to publish its report on the threat from Russia, has put the spotlight on both the constitution and work of an organisation that usually attracts limited attention.

Prior to 1989 the existence of all three of the UK’s intelligence agencies, the Security Service (MI5), the Secret Intelligence Service (MI6) and Government Communications Headquarters (GCHQ) was not even avowed, despite their existence being common knowledge. While from 1989, a degree of scrutiny started for the work of the Security Service (MI5), as a result of the Security Service Act, there was also no system of parliamentary scrutiny of their activities. Any question raised in parliament on a topic of national security involving the operational work of all three of the agencies would not and will still not normally be answered.

In 1994 the government of John Major put the work of all the agencies on a statutory footing with the Intelligence Services Act. This also made provision for the establishment of an Intelligence and Security Committee of Parliament to oversee their work. But this was effectively confined to their expenditure, administration and policy. The ISC had no power to investigate specific operations. The ISC was also answerable to the Prime Minister and not to parliament, even if it was composed of parliamentarians. Although the cross-party composition of nine members involved input from the leaders of the Opposition and of the third largest party in the Commons, appointment was at the discretion of the PM, who also chose the Chair. The ISC reported to the PM, who decided what if anything of any report might be published. There was criticism that the relationship between the ISC and the PM and the agencies was too close and that it did not have the independence needed to provide proper oversight. When after 2005 concerns grew about both UK involvement in US unlawful detention and rendition and in the handling of counterterrorism, the government allowed the ISC to widen its remit, by agreement, to allow it to look into some past operational matters. Continue reading

Responding to the coronavirus ‘infodemic’: some lessons in tackling misinformation

Michela.Palese (1)alan.jfif (1)The proliferation of false, misleading and harmful information about the coronavirus has been described as an ‘infodemic’ by the World Health Organisation. Government, social media companies, and others have taken concerted action against it. Michela Palese and Alan Renwick here examine these responses and consider potential lessons for tackling online misinformation more broadly.

COVID-19 is rightly dominating the international agenda. Besides the crucial health, economic, and social dimensions, considerable attention is being paid to the information on COVID-19 that is circulating online. 

Ever since the virus emerged, false, misleading and/or harmful information has spread, especially online. Newsguard, which ranks websites by trustworthiness, found that, in the 90 days to 3 March, 75 US websites publishing coronavirus misinformation received ‘more than 142 times the engagement of the two major public health institutions providing information about the outbreak’. Ofcom found that ‘[a]lmost half of UK online adults came across false or misleading information about the coronavirus’ in the last week of March. The World Health Organisation (WHO) described the misinformation as an ‘infodemic – an over-abundance of information – some accurate and some not – that makes it hard for people to find trustworthy sources and reliable guidance when they need it.’

The capacity of social media and 24/7 news to proliferate misinformation was already manifest. But this is the first time the potentially nefarious effects of an unregulated online space have combined with a global pandemic. As Conservative MP Damian Collins put it, this is the ‘first major public health crisis of the social media age’.

Governments and tech companies across the globe are responding. In this post, we highlight key steps and consider lessons for dealing with misinformation in general. Continue reading