With a general election imminent, Ewan McGaughey (King’s College London) argues that a new law is urgently needed to stop the poll being swung by stolen data, foreign donations and Russian interference.
If a no-deal Brexit is averted, Britain nonetheless faces the prospect of a general election going ahead without electoral law reform. As Boris Johnson goaded the Leader of the Opposition last week as a ‘big girl’s blouse’ for not agreeing to an election, it seems likely that those behind him – Dominic Cummings, Steve Bannon and Nigel Farage – will deploy the strategy they used in the 2016 referendum: exploiting legal loopholes and the slow administration of justice, to lie and steal the vote.
Everyone who believes in democracy should support legislation before the next election to stop data theft, dark foreign money, foreign social media cyber-war, and evasion of criminal justice. We need a Democracy Protection Act 2019 to suffocate the far right’s criminal electoral strategy.
According to the cross-party Culture, Media and Sport select committee, voters’ data was harvested from Facebook, insurance companies and others, and used by Vote Leave and Leave.eu against voters in the 2016 referendum. According to Dominic Cummings, in a video he tried to erase (now reposted, and below), they ‘sucked in data on the precise same basis as Facebook allows’. This was personal data that was not theirs, and Facebook has been fined for allowing it. Then he said he used this data to psycho-target ‘about seven million people’ who ‘saw something like… one and a half billion digital ads’, ‘really in the last three or four days’ before the vote (from 16:55).
Similarly, Brexit’s biggest donor, Arron Banks, called voters’ personal information, which he harvested from insurance call centres, ‘my data’. Nobody consented to let these men target them with ads, a method that the House of Commons heard described as ‘weapons-grade technology’. The meaning of ‘theft’ in the Theft Act 1968 is dishonestly appropriating property belonging to another with an intention to permanently deprive them of it. Our personal information is a human right, and despite current case law, it should be treated as our property. There has been no indication that Brexiteers have deleted the data of those seven million or other voters. It will therefore be used again.
Dark foreign money
Second, in May 2019 it was revealed that the Brexit Party was collecting foreign donations under £500 in probable violation of the law. In R (Electoral Commission) v City of Westminster Magistrate’s Court and UKIP  UKSC 40,  the Supreme Court found it was the clear intention of the government that parties must ‘declare the source of all donations above a minimum figure… Foreign funding will be banned.’
But when the Political Parties, Elections and Referendums Act 2000 was drafted, it was not so clear – it could be interpreted that the £500 threshold for disclosure also applied to the ban on foreign donations, even though the government and the Supreme Court have explicitly said the threshold was for disclosure only. The Electoral Commission has failed to bring proceedings against the Brexit Party, probably because it fears litigation. This means far-right political parties’ bank accounts risk being flooded with foreign money, to be used against British voters in psycho-targeted ads.
Foreign social media cyber-war
Third, an existential threat to British democracy is cyberwarfare by Putin’s regime in Russia. The DCMS select committee found that Russia has already engaged in ‘unconventional warfare’ against British voters. Yale historian Timothy Snyder has documented this from the time of the Scottish independence vote and in the Brexit poll. In the US 2016 Presidential election, the Mueller report found that Russia’s attacks were ‘sweeping and systematic’. The tactics were tested during Russia’s 2014 invasion of Ukraine, and are now deployed across the world.
Cyberwarfare occurs through Russian agents exploiting our social media networks. Fake profiles are set up, which share, retweet, like, and comment on social media posts to amplify messages in order to rupture support for their political enemies. It seems truly incredible that this could have had any effect. It is easier to believe the denials, even against overwhelming evidence. But this threat is intentional and real: in 2016, Russian state media had more reach on social media than the Vote Leave and Remain campaigns combined. They spread lies and engage in systematic harassment, propelling sexism, racism, antisemitism, Islamophobia and homophobia. Facebook has reportedly deleted billions of fake profiles, but without democratic oversight, and the company acting alone is insufficient. Social media corporations have a financial interest in maximising the quantity of discourse (however corrosive) and the number of users (however fake) to profit from ads. Brexit is a key element of the Kremlin’s geopolitical strategy, because it disables another UN Security Council member, and begins to dismantle the EU.
Why does Russia do this? The best answer is probably that its exports are over 55% coal, gas and oil (compared to the UK’s 8%). To maintain demand for these toxic products, it backs climate damage deniers and sceptics worldwide, including Donald Trump, Alternative für Deutschland, Lega Nord and Nigel Farage. It cannot touch China, but is having serious success in the US, France, the UK and across the EU – the political entities with the greatest capacity to stop climate damage. I said this directly to Russia Today – a propaganda network that should be banned – and then told its TV host he should quit. Unsurprisingly they didn’t broadcast the whole interview.
Evasion of criminal justice
Fourth, laws must be enforced. Before the Brexit poll in 2016, the then home secretary Theresa May reportedly stopped an investigation into whether Arron Banks – Brexit’s £8.4m donor – was financed by Russia. A failing insurance salesman, Banks visited the Russian Embassy multiple times, lied about it to the Commons, and was allegedly offered a gold mine: credit he could use to finance the largest donation in British political history. While Boris Johnson was foreign secretary, the suggestion that there was any ‘successful’ interference by Russia in British politics was denied. But ‘successful’ interference is a matter of judgement, and would be intensely embarrassing, so that will not happen easily. Dominic Cummings, now in Downing Street, has a history of Russian sympathy. The Metropolitan Police still have not completed their investigation into Banks, who cannot prove he is the ‘true source’ of his money.
Undermining of the rule of law and constitutional convention is mounting. Parliament is being prorogued. Cummings has a security pass to Parliament despite being held in contempt of it. Johnson threatens to ignore an Act of Parliament. We risk descending into an eternal state of Brexit paralysis. A no-deal exit will reduce the UK to pauperism, unable to make autonomous economic decisions in the face of multinational corporate power. Even as party to a US trade deal, Canada is routinely sued for violating World Trade Organization laws, particularly in environmental policy. India’s solar programme has been attacked in the same way. Brazil faced litigation for trying to stop AIDS. The issue is not whether these cases are right or wrong. It is that in fighting them, the UK will be alone. The UK will languish under puppet governments beholden to international finance, the fossil fuel industry, and corporations that want to privatise the NHS.
A Democracy Protection Act 2019
For all these reasons, Parliament – before supporting the next election – should pass a Democracy Protection Act. Section 1 should require that all personal data held by political organisations, other than that freely given in door knocking and phone calls, must be deleted, and make it a criminal offence to do otherwise. Personal data should be treated as property. No personal data should be stored without explicit consent, and consent should be revocable any time. As the Institute of Practitioners in Advertising recommends, targeted political ads should be halted.
Section 2 should state simply ‘Foreign donations of any amount are banned’. If Parliament clarifies the law, the Electoral Commission will act to cleanse the Brexit Party coffers of foreign cash.
Section 3 should require that all major social media, particularly Facebook, YouTube and Twitter, have an immediate duty to delete all sock-puppets or bots which are not verifiably a human being or a legitimate entity. Automated functions should be banned, unless positively authorised. All harassment, or conduct in violation of the Equality Act 2010 should be banned, with vicarious liability for the websites that enable it, like in the workplace. Sock-puppets and harassment are already banned on many other websites, such as Wikipedia.
Section 4 should establish a Royal Inquiry into the conduct of the referendum, make it an offence for a public official to interfere with prosecution decisions, and require prosecution for electoral offences or deliberately flouting an Act of Parliament where there is a good arguable case for a conviction.
And for good measure, section 5 should say the Prime Minister may only dissolve and prorogue Parliament for a maximum of seven days each year, unless a majority of the House of Commons approve a longer period in a vote.
With these reforms, our technology and electoral system will be made safer for democracy. We are about to find out whether the UK’s uncodified constitution is as robust as we have taught for many years. I think it is, but we cannot leave it to chance.
This post represents the views of the author and not those of the Brexit blog, nor LSE.
Dr Ewan McGaughey (@ewanmcg) is a senior lecturer, teaching constitutional law and enterprise law, at the School of Law, King’s College, London, and a research associate at the Centre for Business Research, University of Cambridge.