Time to get ‘Analytica’l about UK Election Laws: An Easter treat?

Our recent article on the electoral implications arising from the Facebook – Cambridge Analytica scandal highlighted the potential dangers of the “psychological warfare” tools developed and deployed by organisations such as Cambridge Analytica (in the 2016 US election) and AggregateIQ (during the 2016 Brexit referendum), and noted the inadequacies of the current regime to deal with the use of such systems: “These technologies pose serious questions as to how to regulate campaign spending and election communications to maintain a level playing field.”

 Not two days after publication, a decision was handed down on 23 March 2018 by the High Court granting permission for a judicial review challenge to the Electoral Commission’s decision that Vote Leave’s spending during the 2016 EU Referendum was lawful: R (The Good Law Project) v Electoral Commission and Vote Leave Ltd [2018] EWHC 602 (Admin).

 The Claimant is The Good Law Project, a pro bono project devised by barrister Jolyon Maugham QC of Devereux Chambers (also of notoriety for his crowd funding efforts in relation to the Article 50 legal challenges). They claim Vote Leave Ltd (the official leave campaign) spent their allocated campaign limit of ￡7 million – of which over ￡3 million was spent on Canadian data analytics company AggregateIQ, an organisation alleged to be closely linked with Cambridge Analytica and its parent company SCL – and then proceeded to funnel a further c. ￡720,000 to AggregateIQ through two “permitted participants” also aligned with the wider leave campaign without the funds actually entering the hands of the participants. As such, they argue (i) the funds should properly be treated as having been incurred by Vote Leave, and (ii) therefore that Vote Leave breached the campaign spending limit rules.

 The Electoral Commission launched an initial investigation into the transactions in 2017, but concluded that there was no suggestion of co-ordination and that Vote Leave had appropriately recorded the spending as incurred by the permitted participants. A review of this investigation by the Electoral Commission a short time later found the initial decision was correct.

The High Court decision concluded (i) it was arguable that the funds should be treated as incurred by Vote Leave Ltd, but (ii) the re-opened investigation made it unnecessary to look at the meaning of ‘plan or arrangement’.

 An early present from the Easter bunny? Well, positive signs, but only time will tell whether the review will yield any results and / or trigger any substantive reforms to the electoral regime.

 Watch this space for updates.