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What is the basis of Huhne’s threat of legal action

April 25, 2011 Leave a comment

When Chris Huhne threatened to take the No to AV Campaign to court for making false statements, I wondered on what basis he was planning to bring the legal action. There are legal controls in other elections prohibiting false statements of fact about the personal character of a candidate (this was the basis of the Phil Woolas case last year), but this does not apply in referendum campaigns for fairly obvious reasons. The BBC seems to confirm my initial reaction, with the Electoral Commission stating that they have no authority to investigate a false statement in a referendum campaign. Huhne’s main remedy is then in the court of public opinion – he has to persuade the electorate of the falsity the No Campaign’s arguments.

So it looks like the threat of legal action is a false alarm – but it has succeeded in putting the issue up in the news agenda and forcing the No Campaign on the defensive (with William Hague, for example, stating that some of the claims made about AV are just statements of opinion rather than fact). It also puts a bit of clear water between the Tories and Lib Dems. So Huhne’s remarks may prove to be a strategic move.

Categories: Election

Negative campaigns on the web

April 7, 2011 Leave a comment

Earlier this week, Mike Gapes MP presented a Ten Minute Rule Motion to the House of Commons, arguing (amongst other things) that websites making negative attacks on candidates in elections need greater regulation. You can read my comments on a post for the new UK Constitutional Law Group Blog (just launched this week).

Categories: Election, Media

A change – after much foot dragging

November 2, 2010 2 comments

Some prisoners are finally to get the right to vote. The only part of this that worries me is that the government are only agreeing to make the change reluctantly. David Cameron is said to be “exasperated and furious” at being forced to extend the right to vote. This highlights a shameful episode in which the government has, for a number of years, done everything possible to avoid protecting this aspect of the right to vote as required under the European Convention.

At present the blanket ban on all prisoners voting makes no distinction as to the seriousness of the offence or whether the punitive part of the sentence has been served. Two people may be convicted of the same offence, but one person may be sent to prison (and lose the right to vote) and the other may not (and not lose that right). The choice of punishment may reflect various factors and does not necessarily  indicate whether the loss of the political right is appropriate.

The impetus for reform is not just from the European Court of Human Rights in Hirst. The Scottish court in Smith v Scott found that the law violated fundamental rights and issued a declaration of incompatibility under s.4 of the Human Rights Act. While a declaration will normally prompt a change in the law, in this case it did not – which is unsurprising given that prisoners’ rights is a politically unpopular cause.

The British system for protecting fundamental rights relies on the political branches taking responsibility (and not simply leaving these matters to the courts), and this means sometimes making unpopular decisions. For this reason, I hope the Opposition does not seek to score cheap political points from this issue.

Categories: Election

Impartiality, debates and injunctions

May 3, 2010 Leave a comment

There are a number of signs that a general election campaign is taking place – posters in windows, signs in gardens, leaflets through doors, party election broadcasts, and finally litigation concerning the coverage of smaller political parties in the broadcast media. Ok, it is probably only lawyers who look out for the last one. Normally the cases concern the allocation of election broadcasts, but this time it was about the leaders’ debates.

The SNP applied to the Court of Session for an injunction to restrain the broadcast of the leaders’ debate in Scotland. They argued that the BBC’s refusal to include the leader of the SNP in the debate was unfair, discriminatory and in breach of the impartiality requirements. I’m not surprised the application did not succeed. It would have been a major upset had the debate been prevented from taking place at such short notice. That said, the Scottish courts have in the past been willing to make similar orders. In 1995, the Court of Session granted an injunction preventing the broadcast of an interview with the Prime Minister three days before the local elections. There it was said that the broadcast of the interview was not urgent and could be delayed until after the elections. The same is not true of the debates, which are of little use after the polling day.

Lady Smith, refusing to grant an injunction, commented on the meaning of impartiality in the media:

It cannot be a simple matter of giving each and every political party equal coverage. Nor can it be a simple matter of taking one point in time during the election period and examining the coverage on a single channel at that stage. […] The respondents explain in their guidance documentation what their approach is, taking account of matters which appear properly relevant such as prior electoral support, all subject to overriding considerations of what is proportional and appropriate over the relevant period , thus leaving themselves with what, on the face of it, seems to be a sensible measure of discretion.

Lady Smith also questioned what is meant by the ‘equal coverage’ demanded by the SNP. Those comments highlight the difficulty in deciding what a fair and equal process means in relation to media coverage.  The problem is that it is impossible to treat all parties equally in this context. The same type of question arises in relation to any subsidy for political groups: if it cannot be made available to all groups, then what is the threshold to benefit from the subsidy? This will to some degree be in the discretion of the broadcaster. The issue is more difficult in relation to debates than in relation to party election broadcasts. Smaller parties can at least ask to be given an extra PEB without that time coming at the expense of the time allotted to another party, but time for the debates is even more constrained. It was also found that the BBC could show impartiality through its coverage of the SNP outside the debates. That said, given the benefits in terms of exposure that the debate gave to Nick Clegg, it is a high stakes issue and you can see why the SNP felt aggrieved.

Lady Smith also based her decision on the SNP’s delay in bringing the petition. They had known about the debates well in advance and to impose an injunction at that stage would have disrupted the broadcaster’s planned coverage.

This was only an application for an injunction and the case will still go on to a final judicial review hearing. Though for reasons I have said before, past judicial decisions suggest that is unlikely to succeed.

Donations to parties in week 2 of the campaign

April 27, 2010 Leave a comment

In the second week of the campaign, political parties received over £3.8 million in donations reported to the Electoral Commission. The Conservatives reported 47 donations which added up to £2.2 million, Labour reported 14 donations coming to a total of £1.49 million, and Lib Dems received 3 donations totaling £120k. This is not the total donation income, but only those donations above the threshold for reporting to the central party (and doesn’t include donations to constituency parties or candidates).

Many of the big donors are familiar, such JCB Research’s £250k to the Conservative Party, which also received significant sums from a number of past individual donors. The Labour Party received £400k from Amshold Group Ltd, £200k from Sir Gulam Noon, and £500k from USDAW. The biggest Lib Dem donation, £95k, came from Alpha Healthcare Limited.

Given the post-debate attention given to the Lib Dems, it is surprising they did not receive more money. However, these figures do not include smaller donations that do not need to be disclosed, so the figures don’t show whether any of the parties have benefitted from a surge in small sums.

Are newspaper websites breaking election laws?

April 26, 2010 2 comments

Okay, it is an alarmist headline – but bear with me.

Under the election laws, third parties spending more than £10k in England, on material promoting a political party, in the twelve months prior to a general election, have to register with the Electoral Commission and are subject to a spending limit. Once Parliament has been dissolved, it is illegal to spend more than £500 on a material promoting or disparaging a particular candidate in an election.

The term ‘election material’ is defined broadly and goes beyond those materials that expressly name a party or candidate. The Electoral Commission interprets this provision to apply to material that aims to campaign for a party, group of candidates or policies (the purpose test), and which is made publicly available (the publicity test). If these tests are satisfied, material posted on a website will fall within the category of ‘election material’ and be subject to the third party spending regulations.

It is fairly obvious to anyone in the UK at the moment that newspapers are in the business of producing material that aims to influence the election campaign. They also spend over £10k in England in producing this content. So why don’t they have to register with the Electoral Commission and why aren’t they subject to a spending limit? The answer is simple: newspapers and broadcasters are exempted from controls on third party spending – s.87 of the Political Parties, Elections and Referendums Act states the controls don’t apply to:

the publication of any matter relating to an election, other than an advertisement, in—

(i)     a newspaper or periodical,

(ii)     a broadcast made by the British Broadcasting Corporation [by Sianel Pedwar Cymru or by the Gibraltar Broadcasting Corporation], or

(iii)     a programme included in any service licensed under Part I or III of the Broadcasting Act 1990 or Part I or II of the Broadcasting Act 1996;

But what about material on a newspaper website? Much of the material published on the newspaper website appears in the printed paper, so that is arguably covered under the exemption set out above. But now much content appears on newspaper websites that does not appear in the printed paper. Many newspapers and magazines have free-standing websites that employ their own staff and engage in electoral advocacy. Whether this is covered by the exemption depends on what we mean by ‘in a newspaper or periodical.’

The exemption does not cover anything done by a newspaper or periodical. For example, if a newspaper company spent its funds on a one-off leaflet advocating the election of a particular party (separate from the ordinary paper) that would not fall under the exemption. Nor can the terms ‘newspaper or periodical’ simply be read to cover any website that posts material on a regular basis – that would blow a huge hole in the election laws.

The issue arises in other places in the law. For example, newspapers and periodicals are exempt from VAT – but does this extend to subscriptions to only the newspaper website? The guidance of the HMRC suggests that the VAT exemption applies only to printed materials – but tell me if I am wrong, do you pay VAT on a subscription to the FT online? Either way, this is not decisive for the purposes of election laws, but shows how the problem crops up elsewhere.

Of course, no one wants to see the newspapers gagged. The point is that there seems to be a legal grey area. I haven’t researched the specifics of newspaper websites thoroughly, so maybe there is an obvious answer which I am missing. If not, the current law has probably survived because it has yet to be tested or challenged.  Putting the specifics aside, the issue raises a broader point about the status of the exemption in relation to the online media. For example, should news providers that exist only online be subject to the exemption? This is something I mention in Chapter 8 of Democracy Distorted, and will need to be considered in the future.

Would the Lib Dems really lock Murdoch out of politics?

April 21, 2010 Leave a comment

David Yelland wrote on Monday that success for the Liberal Democrats ‘could lock Murdoch and the media elite out of UK politics.’ The thrust of the argument being that the News Corp has no strong connection with Clegg and his colleagues, so it would deprive Murdoch of his (perceived) access to Number 10:

The fact is these papers, and others, decided months ago that Cameron was going to win. They are now invested in his victory in the most undemocratic fashion. They have gone after the prime minister in a deeply personal way and until last week they were certain he was in their sights.

I hold no brief for Nick Clegg. But now, thanks to him – an ingenue with no media links whatsoever – things look very different, because now the powerless have a voice as well as the powerful.

It is a persuasive article. But would the Lib Dems in office really have that effect in the long-term? Instead, it might simply mean that after all the years of being ignored, the Liberal Democrats get a ticket to join the Murdoch circle. After the honeymoon and a period in office (coalition or otherwise), a new government will have to make some unpopular decisions and will get some bad press. It may then be hard to govern without some relationship with the biggest newspaper proprietor. In the long-term that may not be such a resounding victory for democracy.

It would all depend on what the Lib Dems do while in office and while they have the goodwill to stand up to Murdoch. It would only lock him and the media elite out of politics if they have a long-term media policy that will address the concentration of private media ownership. Looking at the Lib Dem manifesto, it does say the Party supports ‘a strong and diverse media, free from government interference and pressure is essential to a free and democratic society.’ It then adds that they will:

Ensure that the BBC remains strong, free from interference and securely funded, not least to provide impartial news, independent of political and commercial pressures. We will also ensure that the BBC does not undermine the viability of other media providers through unfair competition based on its public funding and dominant position.

While Murdoch might not like the first sentence, the second gives the Lib Dems some scope to court the News Corp, if it becomes necessary to do so.

Categories: Election, Media Tags: ,