Imprints: who’s responsible?

Many proposed electoral reforms are highly contested. One area where there is strong consensus though, is imprints. Essentially, this enhances political transparency by providing information on an election ad [1]: where the ad has really come from and who pays for it. This is already required by law for non-digital ads.

Platforms, particularly Facebook, have attempted to pre-empt regulation and developed their own standards for the financial transparency of political ads. These efforts however have been criticised for lacking teeth and being easy to subvert by bad actors. ORG, for example, presented evidence of banned white nationalist groups subverting Facebook’s rules simply by re registering the group under a different name. In addition, Facebook’s policy encompassess both ads used in election campaigns and ‘issue ads’ which are used for policy advocacy outside of elections. This differs from what is covered under UK law. Ultimately changing UK law will provide the best guidance for what is needed, and the sharpest teeth for enforcing that change. In addition, changing the rules around imprints are only a small part of the necessary systemic change to stop citizens’ personal data being abused for political ends.

The government has recently committed to updating the rules for online imprints.

What has been less clear, however, is who exactly is responsible for making this change. What is important for civil society is to know which legislature to lobby, and which power would be used to change the law. The following should hopefully clarify the matter and help civil society allies’ lobbying efforts.

Who has the power to introduce digital imprints?

The process of devolution, begun in the 1990’s has made the landscape of election law more complicated. Powers that previously lay solely within the UK government are now split. In the UK, the power to introduce imprints is either reserved (to the UK government) or devolved (to another legislature).

UK General Elections – Reserved to the UK Government.

Scottish Parliament – Devolved

Welsh Assembly – Devolved

Northern Ireland Assembly – Reserved to the UK Government

Each legislature can exercise its power to change an aspect of the law that it has responsibility for.

Where in law is the power to change imprint rules contained?

Election law is generally only amendable by primary legislation. For imprints, however, there are permissions within primary legislation that allow changes to be made to their requirements via secondary legislation.

For UK General Elections and Northern Ireland Assembly Elections, there are provisions in primary legislation which enable the UK Cabinet Office Secretary of State to change the requirements for imprints through secondary legislation. For the law that applies to political parties and non-party campaigners, the relevant provision is in Section 143 of the Political Parties Elections and Referendums Act 2000 (PPERA). For the law that applies to candidates, the relevant provision is in Section 110 of the Representation of the People Act.
For Scottish Parliament Elections, as imprints is a devolved matter, the relevant Scottish Minister has power to change the rules. They can use the provision in Section 143 of the Political Parties Elections and Referendums Act 2000 (PPERA) and also have a separate power to amend the rules for candidates that are set out in the Scottish Parliament Elections Order 2015.
For Welsh Assembly Elections, similarly as imprints are a devolved matter, the relevant Welsh Minister has power to change the rules. They can use the provision in Section 143 of the Political Parties Elections and Referendums Act 2000 (PPERA) and also have a separate power to amend the rules for candidates that are set out in the National Assembly for Wales (Representation of the People) Order 2007.

Which ministers should we lobby?

This gets complicated quickly. For example, for UK General Elections, the relevant Secretary of State is Michael Gove. However, some responsibility for UK elections has been given to Chloe Smith, the Minister for the Constitution and Devolution. Similarly, the MSP for Constitutional Affairs, Mike Russell is responsible for electoral reform in Scotland, but has shared some of his portfolio with other Scottish Ministers. By contrast, Julie James, the Welsh Minister for Housing and Local Government, has the portfolio for this in Wales. But the ministers’ briefs can chop and change.

It should be remembered though, that reform around digital imprints should be the beginning, not the end, of UK electoral reform. Some political actors have, up until now, treated imprints like a magic bullet for the UK’s electoral woes. Whilst imprints are useful tools for financial regulators, researchers, and journalists, they do little to address the underlying issues with the political data economy. Whilst ORG welcomes progress on imprints, we hope it will sharpen opinions of the systemic and unlawful use of citizen’s personal data by political parties.