I correctly predicted that there's no violation of human rights in BRADSHAW AND OTHERS v. THE UNITED KINGDOM.

Information

• Judgment date: 2025-07-22
• Communication date: 2022-12-20
• Application number(s): 15653/22
• Country:   GBR
• Relevant ECHR article(s): P1-3
• Conclusion:
  Preliminary objection joined to merits (Art. 34) Individual applications
  (Art. 34) Victim
  No violation of Article 3 of Protocol No. 1 - Right to free elections - {general} (Article 3 of Protocol No. 1 - Free expression of the opinion of the people)
• Result: No violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.544719
• Prediction: No violation

• Consistent

Communication text used for prediction

Published on 16 January 2023 A list of the applicants is set out in the appendix.
1.
The facts of the case, as submitted by the applicants, may be summarised as follows.
2.
The applicants are Members of Parliament (“MPs”).
3.
In February 2019 the House of Commons Digital, Culture, Media and Sport Committee (“DCMS”) published a report entitled “Disinformation and ‘fake news’” (see paragraphs 20-23 below).
This report was followed by the publication of a further report by the Intelligence and Security Committee of Parliament (“ISC”) entitled “Russia” (see paragraphs 24-34 below), which was sent to the Prime Minister in October 2019 and published in July 2020.
4.
The applicants believe that these reports, together with the public response by the Government to the ISC report (see paragraphs 35-37 below), provide credible evidence of interference by Russia in the 2014 referendum on Scottish Independence (“the Scottish independence referendum”), the 2016 European Union membership referendum (“the EU referendum”), and the 2019 general election.
5.
The applicants, together with two life peers and a non-profit organisation, sought permission to challenge, by way of judicial review, the Prime Minister’s decision not to, and/or his ongoing failure to, direct an independent investigation into Russian interference into the country’s democratic processes.
They argued that in light of the ISC’s “Russia” report this failure was in breach of the investigative obligation inherent in Article 3 of Protocol No.
1 to the Convention.
They further challenged what they described as “the absence of an effective legal framework to ensure ‘conditions which will ensure the free expression of the opinion of the people’ as required by Article 3 of Protocol No.
1”.
Finally, they argued that the Prime Minister had failed to act compatibly with his public law duties in failing to establish a public inquiry.
(a) Refusal of permission on the papers 6.
On 9 April 2021 the applicants’ application for permission to apply for judicial review was refused on the papers.
The High Court judge noted at the outset that the grounds of challenge touched on core State functions and/or the exercise of State sovereignty.
Under conventional principles of judicial review the courts should stand back from interference in such cases save where particular legal rights were engaged.
That was not the case here, since none of the applicants’ rights had been breached in any election or referendum.
7.
In respect of the applicants’ first ground, the High Court judge did not consider it arguable that Article 3 of Protocol No.
1 required the Prime Minister to undertake an independent investigation.
With regard to past events, the imposition of such a duty would engage the courts in a highly politicised and contested exercise.
With regard to future events, it was for the Prime Minister and not the courts to decide whether or not an independent investigation was required to ensure the free expression of the opinion of the people in forthcoming elections.
8.
For the High Court judge the challenge to the legal framework was a matter of policy on which the court would not adjudicate.
9.
Finally, the judge did not consider the decision not to establish a public inquiry to be irrational.
She based her reasoning on the Prime Minister’s summary grounds of resistance, which indicated, inter alia, that Russia’s actions had been the subject of a detailed report by the ISC, and that wider public policy issues – such as the approach to disinformation and the use of social media – were the subject of ongoing policy development and public consultation.
There was no evidence that any Russian activity had had any impact on the effectiveness of the right to vote, or on the outcome of any election.
Moreover, a public inquiry did not have investigatory powers of the type that the police and Intelligence Agencies had.
Given that the complaint was that there existed little evidence of successful Russian interference because insufficient investigative efforts had been made to collect that evidence, a public inquiry would not be able to fill that gap, if it existed.
10.
The judge reached no conclusive view on the issue of standing, as the matter was “complex”.
(b) Renewed application for permission to appeal 11.
The application for permission to appeal was renewed on the Convention rights’ grounds only.
It was refused by the High Court on 22 June 2021.
12.
The High Court judge agreed that there was “no basis for the contention that the interference relied on affected the existence or exercise of any person’s right to vote or right to stand as a candidate in an election” and did not consider it arguable that any legal obligation existed under Article 3 of Protocol No.
1.
He gave detailed reasons, by reference to the Court’s case-law, for reaching this conclusion.
13.
Under the second ground, the applicants had argued that the domestic legal framework was in breach of Article 3 of Protocol No.
1 because: 14.
The judge considered these complaints to be an assertion that there had been a failure to legislate, which fell outside the scope of section 6 of the Human Rights Act 1998 (see paragraph 19 below).
In any event, the judge stated that the complaints were inarguable as Article 3 of Protocol No.
1 did not give rise to such specific obligations.
It did not seek to prescribe the detailed structure or shape of electoral law, and the Court had gone to significant lengths to emphasise the extent of the States’ margin of appreciation when establishing such laws.
(c) Application to Court of Appeal for permission to appeal 15.
On 27 September 2021 the Court of Appeal refused the applicants’ application for permission to appeal on the basis that their claim had no real prospect of success, and there was no other compelling reason to hear the appeal.
RELEVANT LEGAL FRAMEWORK AND PRACTICE 16.
Electoral law in the United Kingdom is comprised of primary and secondary legislative material governing elections and referendums.
The Representation of the People Acts 1983 and 2000 were the key pieces of primary legislation.
However, the Elections Act 2022 received Royal Assent on 28 April 2022.
It amends the law about political finance, including by clarifying the rules on notional spending, strengthening the rules so that third‐party spending is restricted to United Kingdom-based entities and eligible overseas electors only, and increasing transparency around third‐party campaigning.
It introduces a new lower tier of third party campaigners subject to reduced regulation and a statutory duty for the Electoral Commission to produce guidance on the operation of Part 6 of the Political Parties, Elections and Referendums Act 2000 (which concerns controls relating to third party national election campaigns).
17.
In addition, it introduces a new requirement for digital campaigning material to display a digital imprint, with the name and address of the promoter of the material or any person on behalf of whom the material is being published (and who is not the promoter).
18.
The Inquiries Act 2005 provides a statutory framework for Government Ministers to order inquiries to be held where events have occurred which have caused, or which are capable of causing, public concern.
Inquiries are not adversarial in nature; rather, they are an inquisitorial process aimed at establishing the truth.
They are usually conducted in public, and the chairman’s report is usually published, although in certain circumstances – for example, where there is a risk to national security – public access and the disclosure of evidence may be restricted and certain material in the report may be withheld from publication.
19.
Pursuant to section 6(1) of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
However, according to section 6(2) an “act” does not include a failure to introduce in, or lay before, Parliament a proposal for legislation; or a failure to make any primary legislation or remedial order.
20.
The Digital, Culture, Media and Sport Committee (“DCMS”) is a cross-party committee of MPs appointed by the House of Commons to examine the expenditure, administration and policy of the Department for Digital, Culture, Media and Sport and its associated public bodies.
21.
Over the course of eighteen months it conducted an inquiry on disinformation, covering, inter alia, how individuals’ political choices might be affected and influenced by online information and interference by malign forces in political elections in the United Kingdom.
Its report was published in February 2019.
22.
Under the heading, “Foreign influence in political campaigns”, the report stated: “There has been clear and proven Russian influence in foreign elections, and we highlighted evidence in our Interim Report of such attempts in the EU Referendum.” 23.
Having specific regard to Russian interference in domestic elections, the report continued: “As we said in our Interim Report, Prime Minister Theresa May accused Russia of meddling in elections, and planting disinformation, in an attempt to ‘weaponise information’ and sow discord in the West.
In its response to the Report, the Government stated that, following the nerve agent attack in Salisbury in March 2018, the Government had ‘judged the Russian state promulgated at least 38 false disinformation narratives around this criminal act’.
However, the Government made it clear that ‘it has not seen evidence of successful use of disinformation by foreign actors, including Russia, to influence UK democratic processes’.
When the Secretary of State was questioned in oral evidence over what constitutes ‘successful’, Rt Hon Jeremy Wright MP, responded: ‘We have seen nothing that persuades us that Russian interference has had a material impact on the way in which people choose to vote in elections.
It is not that they have not tried, but we have not seen evidence of that material impact’.
It is surely a sufficient matter of concern that the Government has acknowledged that interference has occurred, irrespective of the lack of evidence of impact.
The Government should be conducting analysis to understand the extent of Russian targeting of voters during elections.
The Government also cannot state definitively that there was ‘no evidence of successful interference’ in our democratic processes, as the term ‘successful’ is impossible to define in retrospect.
There is, however, strong evidence that points to hostile state actors influencing democratic processes.
Cardiff University and the Digital Forensics Lab of the Atlantic Council have both detailed ways in which the Kremlin attempted to influence attitudes in UK politics.
Kremlin-aligned media published significant numbers of unique articles about the EU referendum.
89 Up researchers analysed the most shared of the articles, and identified 261 with a clear anti-EU bias to the reporting.
The two main outlets were RT and Sputnik, with video produced by Ruptly.
The articles that went most viral had the heaviest anti-EU bias.
The social reach of these anti-EU articles published by the Kremlin-owned channels was 134 million potential impressions, in comparison with a total reach of just 33 million and 11 million potential impressions for all content shared from the Vote Leave website and Leave.EU website respectively.
The value for a comparable paid social media campaign would be between £1.4 and 4.14 million.
... Ben Nimmo, from the Digital Forensics Lab of the Atlantic Council, has detailed attempts to influence attitudes to the Scottish Referendum, for instance, which included a Russian election observer calling the referendum not in line with international standards, and Twitter accounts calling into question its legitimacy.
The behaviour of these accounts, Mr Nimmo argues, is pro-Kremlin, and consistent with the behaviour of accounts known to be run by the so-called ‘troll factory’ in St. Petersburg, Russia, during the United States 2016 presidential election and beyond.
However, it is not possible to determine from open sources whether some or all of the accounts are independent actors, or linked to Russian information operations.
...
The Government has been very ready to accept the evidence of Russian activity in the Skripal case, an acceptance justified by the evidence.
However, it is reluctant to accept evidence of interference in the 2016 Referendum in the UK.
If the Government wishes the public to treat its statements on these important matters of national security and democracy seriously, it must report the position impartially, uninfluenced by the political implications of any such report.
In common with other countries, the UK is clearly vulnerable to covert digital influence campaigns and the Government should be conducting analysis to understand the extent of the targeting of voters, by foreign players, during past elections.
We ask the Government whether current legislation to protect the electoral process from malign influence is sufficient.
Legislation should be in line with the latest technological developments, and should be explicit on the illegal influencing of the democratic process by foreign players.
We urge the Government to look into this issue and to respond in its White Paper.” 24.
The ISC is a statutory committee that has responsibility for oversight of the United Kingdom Intelligence Community.
Its nine Members, who are drawn from both Houses of Parliament, are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition.
25.
Throughout 2018 the ISC conducted a major Inquiry which covered various aspects of the Russian threat to the United Kingdom, together with an examination of how the United Kingdom Government had responded.
A report was completed on 17 October 2019 and sent to the Prime Minister.
On 21 July 2020 the report was presented to Parliament and published with redactions (represented by “***”).
Although the report was supplemented by an annex, that annex has not yet been published, “in view of the current Russian threat”.
26.
The report found that: “It is clear that Russia currently poses a significant threat to the UK on a number of fronts – from espionage to interference in democratic processes, and to serious crime.
The question is how that has happened – and what the Intelligence Community is now doing to tackle it.” 27.
In the specific context of interference in democratic processes, the report noted: “The spreading of disinformation (by which we mean the promotion of intentionally false, distorting or distracting narratives) and the running of ‘influence campaigns’ are separate but interlinked subjects.
An influence campaign in relation to an election, for example, may use the spreading of disinformation, but may also encompass other tactics such as illicit funding, disruption of electoral mechanics or direct attacks on one of the campaigns (such as ‘hack and leak’).
...
In terms of the direct threat to elections, we have been informed that the mechanics of the UK’s voting system are deemed largely sound: the use of a highly dispersed paper-based voting and counting system makes any significant interference difficult, and we understand that GCHQ [Government Communication Headquarters, the United Kingdom’s intelligence, security and cyber agency] has undertaken a great deal of work to help ensure that the online voter registration system is safe.” 28.
Nonetheless, the report continued: “The UK is clearly a target for Russia’s disinformation campaigns and political influence operations and must therefore equip itself to counter such efforts.
... ... [W]e note that – as with so many other issues currently – it is the social media companies which hold the key and yet are failing to play their part; DCMS informed us that ***.
The Government must now seek to establish a protocol with the social media companies to ensure that they take covert hostile state use of their platforms seriously, and have clear timescales within which they commit to removing such material.
Government should ‘name and shame’ those which fail to act.
Such a protocol could, usefully, be expanded to encompass the other areas in which action is required from the social media companies, since this issue is not unique to Hostile State Activity.
This matter is, in our view, urgent and we expect the Government to report on progress in this area as soon as possible.” 29.
By way of a case study, the report considered the EU referendum, since there had been widespread public allegations that Russia had sought to influence it.
According to the report: “The impact of any such attempts would be difficult – if not impossible – to assess, and we have not sought to do so.
However, it is important to establish whether a hostile state took deliberate action with the aim of influencing a UK democratic process, irrespective of whether it was successful or not.
Open source studies have pointed to the preponderance of pro-Brexit or anti-EU stories on RT and Sputnik, and the use of ‘bots’ and ‘trolls’, as evidence of Russian attempts to influence the process.” 30.
The report also noted the existence of “credible open source commentary” suggesting that Russia undertook influence campaigns in relation to the Scottish independence referendum.
31.
Concerning the Government’s response to allegations of Russian interference in its democratic processes, the report indicated: “The written evidence provided to us appeared to suggest that [the Government] had not seen or sought evidence of successful interference in UK democratic processes or any activity that has had a material impact on an election, for example influencing results.
***.
***.
This focus on *** indicates that open source material (for example, the studies of attempts to influence the referendum using RT and Sputnik, or social media campaigns referred to earlier) was not fully taken into account.
Given that the Committee has previously been informed that open source material is now fully represented in the Government’s understanding of the threat picture, it was surprising to us that in this instance it was not.
Whilst it may be true that some issues highlighted in open source did not require the secret investigative capabilities of the intelligence and security Agencies or were at the periphery of their remits, the Agencies nonetheless have capabilities which allow them to ‘stand on the shoulders’ of open source coverage: for example, GCHQ might attempt to look behind the suspicious social media accounts which open source analysis has identified to uncover their true operators (and even disrupt their use), or SIS [Secret Intelligence Service, otherwise known as MI6] might specifically task an agent to provide information on the extent and nature of any Russian influence campaigns.
However, we have found *** which suggests that ***.
***.
(iii) Lack of retrospective assessment We have not been provided with any post-referendum assessment of Russian attempts at interference, ***.
This situation is in stark contrast to the US handling of allegations of Russian interference in the 2016 presidential election, where an intelligence community assessment was produced within two months of the vote, with an unclassified summary being made public.
Whilst the issues at stake in the EU referendum campaign are less clear-cut, it is nonetheless the Committee’s view that the UK Intelligence Community should produce an analogous assessment of potential Russian interference in the EU referendum and that an unclassified summary of it be published.
***.
Even if the conclusion of any such assessment were that there was minimal interference, this would nonetheless represent a helpful reassurance to the public that the UK’s democratic processes had remained relatively safe.” 32.
The report noted that following the end of the Cold War, the operational effort allocated to countering Russian Hostile State Activity decreased.
The report continued: “We fully recognise the very considerable pressures on the Agencies since 9/11, and that they have a finite amount of resource, which they must focus on operational priorities.
Nevertheless, reacting to the here and now is inherently inefficient and – in our opinion – until recently, the Government had badly underestimated the Russian threat and the response it required.” 33.
The Intelligence Agencies had informed the ISC that the DCMS had primary responsibility for disinformation campaigns, and that the Electoral Commission had responsibility for the overall security of democratic processes.
However, DCMS told the ISC that its function was largely confined to the broad Government policy regarding the use of disinformation rather than an assessment of, or operations against, hostile State campaigns.
According to the ISC: “DCMS is a small Whitehall policy department and the Electoral Commission is an arm’s length body; neither is in the central position required to tackle a major hostile state threat to our democracy.
Protecting our democratic discourse and processes from hostile foreign interference is a central responsibility of Government, and should be a ministerial priority.” 34.
The report also considered whether the Intelligence Community had all the powers and tools it needed to counter Russian Hostile State Activity.
Under the heading “Protecting democracy” it stated: “The Digital, Culture, Media and Sport (DCMS) Select Committee has already asked the Government ‘whether current legislation to protect the electoral process from malign interference is sufficient.
Legislation should be in line with the latest technological developments’.
We note that physical interference in the UK’s democratic processes is less likely given the use of a paper-based system – however, we support the DCMS Select Committee’s calls for the Electoral Commission to be given power to ‘stop someone acting illegally in a campaign if they live outside the UK’.
Separately, there is the question of influence over our democratic processes.
Questions have been raised over whether electoral law is sufficiently up to date, given ‘the move from physical billboards to online, micro-targeted political campaigning’.
We note – and, again, agree with the DCMS Select Committee – that ‘the UK is clearly vulnerable to covert digital influence campaigns’.
In this respect, we have already questioned whether the Electoral Commission has sufficient powers to ensure the security of democratic processes where hostile state threats are involved; if it is to tackle foreign interference, then it must be given the necessary legislative powers.” 35.
In July 2020 the Government published a public response to the ISC report.
It stated that: “The UK’s free and open democracy is one of our nation’s greatest strengths.
However, we know that certain states seek to exploit our open system to sow division and undermine trust in our democracy, and those of our allies, through disinformation, cyber-attacks and other methods.
We have made clear that any foreign interference in the UK’s Democratic processes is completely unacceptable.
It is, and always will be, an absolute priority to protect the UK against foreign interference, whether from Russia or any other state.
We have worked with industry, civil society and international partners to implement robust systems to secure our Democratic processes and deter attempts to interfere in it.
This work is undertaken with the utmost regard for the freedom of the press, political and parliamentary discourse and freedom of speech.
We will always balance the need to secure our Democracy with our duty to uphold our values.” 36.
The Government acknowledged that it was “almost certain that Russian actors sought to interfere in the 2019 General Election through the online amplification of illicitly acquired and leaked Government documents.” The response also referred to “several incidents during the 2019 General Election including distributed denial of service attacks against political parties, and suspicious emails received by candidates.” However, the Government had seen “no evidence of successful interference in the EU Referendum”.
37.
The response continued: “Whilst there is no evidence of a broad spectrum Russian campaign against the election, any attempt to interfere in our democratic processes is completely unacceptable.
There is an ongoing criminal investigation and it would be inappropriate for us to say anything further at this point.
...
The Intelligence and Security Agencies produce and contribute to regular assessments of the threat posed by Hostile State Activity, including around potential interference in UK democratic processes.
We keep such assessments under review and, where necessary, update them in response to new intelligence, including during democratic events such as elections and referendums.
Where new information emerges, the Government will always consider the most appropriate use of any intelligence it develops or receives, including whether it is appropriate to make this public.
Given this long standing approach, a retrospective assessment of the EU Referendum is not necessary.” 38.
The risks posed by disinformation was already recognised by the League of Nations.
By virtue of the International Convention Concerning the Use of Broadcasting in the Cause of Peace, which was signed in Geneva on 23 September 1936, the High Contracting Parties undertook to prohibit and stop the broadcasting within their respective territories of any transmission which would be to the detriment of good international understanding (by, inter alia, incorrect statements) or which would incite the population to acts incompatible with the internal order or the security of a territory of a High Contracting Party.
39.
The Joint declaration on freedom of expression and “fake news”, disinformation and propaganda (March 2017) was issued by the United Nations (“UN”) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (“”OSCE) Representative on Freedom of the Media, the Organization of American States (“OAS”) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (“ACHPR”) Special Rapporteur on Freedom of Expression and Access to Information.
40.
Together, they noted the growing prevalence of disinformation and propaganda in legacy and social media, fuelled by both States and non-State actors, and expressed concern that disinformation and propaganda were often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek, receive and impart information and ideas of all kinds.
41.
In this Resolution the Parliamentary Assembly expressed concern about, inter alia, the spread of disinformation campaigns aimed at shaping public opinion and trends of foreign electoral interference and manipulation.
In PACE’s view, these represented a challenge for democracy, and in particular for the electoral processes throughout Council of Europe member States, affecting the right to freedom of expression, including the right to receive information, and the right to free elections.
42.
According to PACE, in order to address disinformation challenges in the context of democratic elections, Governments of Council of Europe member States needed to: 43.
PACE therefore called on Council of Europe member States to implement a number of strategies from a European and global perspective which were targeted both at elections and candidates in elections as well as the political process more generally, and to create a model that includes co-responsibility and multiple regulatory and conflict-resolution approaches.
(a) European Commission for Democracy Through Law (Venice Commission): The impact of the information disorder (disinformation) on elections (November 2018) 44.
According to the author of this report, “Today we are witnessing the parallel proliferation of information and its pollution at a global scale.
The internet-based services have enriched and diversified news sources, facilitating individuals’ access to information and their decisions on the most crucial matters in democracy, notably on the choice of their legislature.
However, at the same time, a new era of information disorder (CoE Information Disorder Report, 2017) distorted the communication ecosystem to the point where voters may be seriously encumbered in their decisions by misleading, manipulative and false information designed to influence their votes.
This environment potentially undermines the exercise of the right to free elections and creates considerable risks to the functioning of a democratic system.” 45.
As a consequence, she believed that “[t]he guarantees of a level playing field aimed at ensuring fair, clean and clear campaigns are under threat”.
(b) Council of Europe: Disinformation and Electoral Campaigns (June 2019) 46.
This report provided an overview of the legal framework in a number of different States.
In respect of the United Kingdom, it said the following: “United Kingdom The British Electoral Commission has called for increasing transparency for voters with regard to the practice of digital electoral campaigns.
It has provided recommendations on the responsibility of digital campaigns, spending on digital campaigns, the transparency of payments for digital campaigns and enforcement of these rules.” 47.
The report noted that many countries clearly were aware of the dangers of the manipulation of public opinion during electoral campaigns and comprehensive efforts were being made to implement new regulations to counter disinformation.
However, there remained many obstacles to drafting effective rules that were compatible with constitutional and international standards.
48.
The report made a number of recommendations falling into three categories: 49.
Both Council Regulation (EU) 2022/350 of 1 March 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as well as Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine underlined the need to further strengthen the Union’s and Member States’ resilience as well as their ability to counter hybrid threats, including disinformation and influence operations.
Both noted in paragraph (6) of their respective Preambles that “[t]he Russian Federation has engaged in a systematic, international campaign of media manipulation and distortion of facts in order to enhance its strategy of destabilisation of its neighbouring countries and of the Union and its Member States.
In particular, the propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States.” COMPLAINTS 50.
The applicants complain under Article 3 of Protocol No.
1 to the Convention that the respondent State breached its positive obligation to investigate hostile State interference in its democratic elections, and that it failed to put in place an effective legal and institutional framework to secure its obligations under that Article.
QUESTIONS TO THE PARTIES 1.
Do either of the applicants’ complaints (concerning the failure to investigate allegations of interference by Russia in the United Kingdom’s democratic elections, and the failure to put in place an effective legal and institutional framework to secure the respondent Government’s obligation to organise free elections) fall within the scope of Article 3 of Protocol No.
1?
2.
More specifically, can the positive obligation under Article 3 of Protocol No.
1 to organise elections “under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” (see, for example, Yumak and Sadak v. Turkey [GC], no.
10226/03, § 106, ECHR 2008) be understood as requiring States to have in place a legal and institutional framework to combat external threats to the integrity of their elections?
3.
Is there implicit in Article 3 of Protocol No.
1 a duty on States to investigate allegations of interference in their democratic elections?
If there is such a duty, bearing in mind that referendums do not fall within the scope of Article 3 of Protocol No.
1 (see, for example, Moohan and Gillon v. the United Kingdom (dec.), nos.
22962/15 and 23345/15, §§ 40‐43, 13 June 2017), was there sufficient evidence of interference by Russia in the United Kingdom’s democratic elections to trigger that investigative duty?
4.
If the applicants’ complaints fall within the scope of Article 3 of Protocol No.
1, as sitting Members of Parliament can they claim to be victims of the alleged violations, within the meaning of Article 34 of the Convention?
5.
Finally, if the applicants do have victim status, and their complaints fall within the scope of Article 3 of Protocol No.
1 to the Convention, do the facts of the present case disclose any violation of that Article?
APPENDIX List of applicants: No.
Applicant’s Name Year of birth Nationality Place of residence 1.
Ben BRADSHAW 1960 British London 2.
Caroline LUCAS 1960 British London 3.
Alyn SMITH 1973 British London Published on 16 January 2023 A list of the applicants is set out in the appendix.
1.
The facts of the case, as submitted by the applicants, may be summarised as follows.
2.
The applicants are Members of Parliament (“MPs”).
3.
In February 2019 the House of Commons Digital, Culture, Media and Sport Committee (“DCMS”) published a report entitled “Disinformation and ‘fake news’” (see paragraphs 20-23 below).
This report was followed by the publication of a further report by the Intelligence and Security Committee of Parliament (“ISC”) entitled “Russia” (see paragraphs 24-34 below), which was sent to the Prime Minister in October 2019 and published in July 2020.
4.
The applicants believe that these reports, together with the public response by the Government to the ISC report (see paragraphs 35-37 below), provide credible evidence of interference by Russia in the 2014 referendum on Scottish Independence (“the Scottish independence referendum”), the 2016 European Union membership referendum (“the EU referendum”), and the 2019 general election.
5.
The applicants, together with two life peers and a non-profit organisation, sought permission to challenge, by way of judicial review, the Prime Minister’s decision not to, and/or his ongoing failure to, direct an independent investigation into Russian interference into the country’s democratic processes.
They argued that in light of the ISC’s “Russia” report this failure was in breach of the investigative obligation inherent in Article 3 of Protocol No.
1 to the Convention.
They further challenged what they described as “the absence of an effective legal framework to ensure ‘conditions which will ensure the free expression of the opinion of the people’ as required by Article 3 of Protocol No.
1”.
Finally, they argued that the Prime Minister had failed to act compatibly with his public law duties in failing to establish a public inquiry.
(a) Refusal of permission on the papers 6.
On 9 April 2021 the applicants’ application for permission to apply for judicial review was refused on the papers.
The High Court judge noted at the outset that the grounds of challenge touched on core State functions and/or the exercise of State sovereignty.
Under conventional principles of judicial review the courts should stand back from interference in such cases save where particular legal rights were engaged.
That was not the case here, since none of the applicants’ rights had been breached in any election or referendum.
7.
In respect of the applicants’ first ground, the High Court judge did not consider it arguable that Article 3 of Protocol No.
1 required the Prime Minister to undertake an independent investigation.
With regard to past events, the imposition of such a duty would engage the courts in a highly politicised and contested exercise.
With regard to future events, it was for the Prime Minister and not the courts to decide whether or not an independent investigation was required to ensure the free expression of the opinion of the people in forthcoming elections.
8.
For the High Court judge the challenge to the legal framework was a matter of policy on which the court would not adjudicate.
9.
Finally, the judge did not consider the decision not to establish a public inquiry to be irrational.
She based her reasoning on the Prime Minister’s summary grounds of resistance, which indicated, inter alia, that Russia’s actions had been the subject of a detailed report by the ISC, and that wider public policy issues – such as the approach to disinformation and the use of social media – were the subject of ongoing policy development and public consultation.
There was no evidence that any Russian activity had had any impact on the effectiveness of the right to vote, or on the outcome of any election.
Moreover, a public inquiry did not have investigatory powers of the type that the police and Intelligence Agencies had.
Given that the complaint was that there existed little evidence of successful Russian interference because insufficient investigative efforts had been made to collect that evidence, a public inquiry would not be able to fill that gap, if it existed.
10.
The judge reached no conclusive view on the issue of standing, as the matter was “complex”.
(b) Renewed application for permission to appeal 11.
The application for permission to appeal was renewed on the Convention rights’ grounds only.
It was refused by the High Court on 22 June 2021.
12.
The High Court judge agreed that there was “no basis for the contention that the interference relied on affected the existence or exercise of any person’s right to vote or right to stand as a candidate in an election” and did not consider it arguable that any legal obligation existed under Article 3 of Protocol No.
1.
He gave detailed reasons, by reference to the Court’s case-law, for reaching this conclusion.
13.
Under the second ground, the applicants had argued that the domestic legal framework was in breach of Article 3 of Protocol No.
1 because: 14.
The judge considered these complaints to be an assertion that there had been a failure to legislate, which fell outside the scope of section 6 of the Human Rights Act 1998 (see paragraph 19 below).
In any event, the judge stated that the complaints were inarguable as Article 3 of Protocol No.
1 did not give rise to such specific obligations.
It did not seek to prescribe the detailed structure or shape of electoral law, and the Court had gone to significant lengths to emphasise the extent of the States’ margin of appreciation when establishing such laws.
(c) Application to Court of Appeal for permission to appeal 15.
On 27 September 2021 the Court of Appeal refused the applicants’ application for permission to appeal on the basis that their claim had no real prospect of success, and there was no other compelling reason to hear the appeal.
RELEVANT LEGAL FRAMEWORK AND PRACTICE 16.
Electoral law in the United Kingdom is comprised of primary and secondary legislative material governing elections and referendums.
The Representation of the People Acts 1983 and 2000 were the key pieces of primary legislation.
However, the Elections Act 2022 received Royal Assent on 28 April 2022.
It amends the law about political finance, including by clarifying the rules on notional spending, strengthening the rules so that third‐party spending is restricted to United Kingdom-based entities and eligible overseas electors only, and increasing transparency around third‐party campaigning.
It introduces a new lower tier of third party campaigners subject to reduced regulation and a statutory duty for the Electoral Commission to produce guidance on the operation of Part 6 of the Political Parties, Elections and Referendums Act 2000 (which concerns controls relating to third party national election campaigns).
17.
In addition, it introduces a new requirement for digital campaigning material to display a digital imprint, with the name and address of the promoter of the material or any person on behalf of whom the material is being published (and who is not the promoter).
18.
The Inquiries Act 2005 provides a statutory framework for Government Ministers to order inquiries to be held where events have occurred which have caused, or which are capable of causing, public concern.
Inquiries are not adversarial in nature; rather, they are an inquisitorial process aimed at establishing the truth.
They are usually conducted in public, and the chairman’s report is usually published, although in certain circumstances – for example, where there is a risk to national security – public access and the disclosure of evidence may be restricted and certain material in the report may be withheld from publication.
19.
Pursuant to section 6(1) of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
However, according to section 6(2) an “act” does not include a failure to introduce in, or lay before, Parliament a proposal for legislation; or a failure to make any primary legislation or remedial order.
20.
The Digital, Culture, Media and Sport Committee (“DCMS”) is a cross-party committee of MPs appointed by the House of Commons to examine the expenditure, administration and policy of the Department for Digital, Culture, Media and Sport and its associated public bodies.
21.
Over the course of eighteen months it conducted an inquiry on disinformation, covering, inter alia, how individuals’ political choices might be affected and influenced by online information and interference by malign forces in political elections in the United Kingdom.
Its report was published in February 2019.
22.
Under the heading, “Foreign influence in political campaigns”, the report stated: “There has been clear and proven Russian influence in foreign elections, and we highlighted evidence in our Interim Report of such attempts in the EU Referendum.” 23.
Having specific regard to Russian interference in domestic elections, the report continued: “As we said in our Interim Report, Prime Minister Theresa May accused Russia of meddling in elections, and planting disinformation, in an attempt to ‘weaponise information’ and sow discord in the West.
In its response to the Report, the Government stated that, following the nerve agent attack in Salisbury in March 2018, the Government had ‘judged the Russian state promulgated at least 38 false disinformation narratives around this criminal act’.
However, the Government made it clear that ‘it has not seen evidence of successful use of disinformation by foreign actors, including Russia, to influence UK democratic processes’.
When the Secretary of State was questioned in oral evidence over what constitutes ‘successful’, Rt Hon Jeremy Wright MP, responded: ‘We have seen nothing that persuades us that Russian interference has had a material impact on the way in which people choose to vote in elections.
It is not that they have not tried, but we have not seen evidence of that material impact’.
It is surely a sufficient matter of concern that the Government has acknowledged that interference has occurred, irrespective of the lack of evidence of impact.
The Government should be conducting analysis to understand the extent of Russian targeting of voters during elections.
The Government also cannot state definitively that there was ‘no evidence of successful interference’ in our democratic processes, as the term ‘successful’ is impossible to define in retrospect.
There is, however, strong evidence that points to hostile state actors influencing democratic processes.
Cardiff University and the Digital Forensics Lab of the Atlantic Council have both detailed ways in which the Kremlin attempted to influence attitudes in UK politics.
Kremlin-aligned media published significant numbers of unique articles about the EU referendum.
89 Up researchers analysed the most shared of the articles, and identified 261 with a clear anti-EU bias to the reporting.
The two main outlets were RT and Sputnik, with video produced by Ruptly.
The articles that went most viral had the heaviest anti-EU bias.
The social reach of these anti-EU articles published by the Kremlin-owned channels was 134 million potential impressions, in comparison with a total reach of just 33 million and 11 million potential impressions for all content shared from the Vote Leave website and Leave.EU website respectively.
The value for a comparable paid social media campaign would be between £1.4 and 4.14 million.
... Ben Nimmo, from the Digital Forensics Lab of the Atlantic Council, has detailed attempts to influence attitudes to the Scottish Referendum, for instance, which included a Russian election observer calling the referendum not in line with international standards, and Twitter accounts calling into question its legitimacy.
The behaviour of these accounts, Mr Nimmo argues, is pro-Kremlin, and consistent with the behaviour of accounts known to be run by the so-called ‘troll factory’ in St. Petersburg, Russia, during the United States 2016 presidential election and beyond.
However, it is not possible to determine from open sources whether some or all of the accounts are independent actors, or linked to Russian information operations.
...
The Government has been very ready to accept the evidence of Russian activity in the Skripal case, an acceptance justified by the evidence.
However, it is reluctant to accept evidence of interference in the 2016 Referendum in the UK.
If the Government wishes the public to treat its statements on these important matters of national security and democracy seriously, it must report the position impartially, uninfluenced by the political implications of any such report.
In common with other countries, the UK is clearly vulnerable to covert digital influence campaigns and the Government should be conducting analysis to understand the extent of the targeting of voters, by foreign players, during past elections.
We ask the Government whether current legislation to protect the electoral process from malign influence is sufficient.
Legislation should be in line with the latest technological developments, and should be explicit on the illegal influencing of the democratic process by foreign players.
We urge the Government to look into this issue and to respond in its White Paper.” 24.
The ISC is a statutory committee that has responsibility for oversight of the United Kingdom Intelligence Community.
Its nine Members, who are drawn from both Houses of Parliament, are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition.
25.
Throughout 2018 the ISC conducted a major Inquiry which covered various aspects of the Russian threat to the United Kingdom, together with an examination of how the United Kingdom Government had responded.
A report was completed on 17 October 2019 and sent to the Prime Minister.
On 21 July 2020 the report was presented to Parliament and published with redactions (represented by “***”).
Although the report was supplemented by an annex, that annex has not yet been published, “in view of the current Russian threat”.
26.
The report found that: “It is clear that Russia currently poses a significant threat to the UK on a number of fronts – from espionage to interference in democratic processes, and to serious crime.
The question is how that has happened – and what the Intelligence Community is now doing to tackle it.” 27.
In the specific context of interference in democratic processes, the report noted: “The spreading of disinformation (by which we mean the promotion of intentionally false, distorting or distracting narratives) and the running of ‘influence campaigns’ are separate but interlinked subjects.
An influence campaign in relation to an election, for example, may use the spreading of disinformation, but may also encompass other tactics such as illicit funding, disruption of electoral mechanics or direct attacks on one of the campaigns (such as ‘hack and leak’).
...
In terms of the direct threat to elections, we have been informed that the mechanics of the UK’s voting system are deemed largely sound: the use of a highly dispersed paper-based voting and counting system makes any significant interference difficult, and we understand that GCHQ [Government Communication Headquarters, the United Kingdom’s intelligence, security and cyber agency] has undertaken a great deal of work to help ensure that the online voter registration system is safe.” 28.
Nonetheless, the report continued: “The UK is clearly a target for Russia’s disinformation campaigns and political influence operations and must therefore equip itself to counter such efforts.
... ... [W]e note that – as with so many other issues currently – it is the social media companies which hold the key and yet are failing to play their part; DCMS informed us that ***.
The Government must now seek to establish a protocol with the social media companies to ensure that they take covert hostile state use of their platforms seriously, and have clear timescales within which they commit to removing such material.
Government should ‘name and shame’ those which fail to act.
Such a protocol could, usefully, be expanded to encompass the other areas in which action is required from the social media companies, since this issue is not unique to Hostile State Activity.
This matter is, in our view, urgent and we expect the Government to report on progress in this area as soon as possible.” 29.
By way of a case study, the report considered the EU referendum, since there had been widespread public allegations that Russia had sought to influence it.
According to the report: “The impact of any such attempts would be difficult – if not impossible – to assess, and we have not sought to do so.
However, it is important to establish whether a hostile state took deliberate action with the aim of influencing a UK democratic process, irrespective of whether it was successful or not.
Open source studies have pointed to the preponderance of pro-Brexit or anti-EU stories on RT and Sputnik, and the use of ‘bots’ and ‘trolls’, as evidence of Russian attempts to influence the process.” 30.
The report also noted the existence of “credible open source commentary” suggesting that Russia undertook influence campaigns in relation to the Scottish independence referendum.
31.
Concerning the Government’s response to allegations of Russian interference in its democratic processes, the report indicated: “The written evidence provided to us appeared to suggest that [the Government] had not seen or sought evidence of successful interference in UK democratic processes or any activity that has had a material impact on an election, for example influencing results.
***.
***.
This focus on *** indicates that open source material (for example, the studies of attempts to influence the referendum using RT and Sputnik, or social media campaigns referred to earlier) was not fully taken into account.
Given that the Committee has previously been informed that open source material is now fully represented in the Government’s understanding of the threat picture, it was surprising to us that in this instance it was not.
Whilst it may be true that some issues highlighted in open source did not require the secret investigative capabilities of the intelligence and security Agencies or were at the periphery of their remits, the Agencies nonetheless have capabilities which allow them to ‘stand on the shoulders’ of open source coverage: for example, GCHQ might attempt to look behind the suspicious social media accounts which open source analysis has identified to uncover their true operators (and even disrupt their use), or SIS [Secret Intelligence Service, otherwise known as MI6] might specifically task an agent to provide information on the extent and nature of any Russian influence campaigns.
However, we have found *** which suggests that ***.
***.
(iii) Lack of retrospective assessment We have not been provided with any post-referendum assessment of Russian attempts at interference, ***.
This situation is in stark contrast to the US handling of allegations of Russian interference in the 2016 presidential election, where an intelligence community assessment was produced within two months of the vote, with an unclassified summary being made public.
Whilst the issues at stake in the EU referendum campaign are less clear-cut, it is nonetheless the Committee’s view that the UK Intelligence Community should produce an analogous assessment of potential Russian interference in the EU referendum and that an unclassified summary of it be published.
***.
Even if the conclusion of any such assessment were that there was minimal interference, this would nonetheless represent a helpful reassurance to the public that the UK’s democratic processes had remained relatively safe.” 32.
The report noted that following the end of the Cold War, the operational effort allocated to countering Russian Hostile State Activity decreased.
The report continued: “We fully recognise the very considerable pressures on the Agencies since 9/11, and that they have a finite amount of resource, which they must focus on operational priorities.
Nevertheless, reacting to the here and now is inherently inefficient and – in our opinion – until recently, the Government had badly underestimated the Russian threat and the response it required.” 33.
The Intelligence Agencies had informed the ISC that the DCMS had primary responsibility for disinformation campaigns, and that the Electoral Commission had responsibility for the overall security of democratic processes.
However, DCMS told the ISC that its function was largely confined to the broad Government policy regarding the use of disinformation rather than an assessment of, or operations against, hostile State campaigns.
According to the ISC: “DCMS is a small Whitehall policy department and the Electoral Commission is an arm’s length body; neither is in the central position required to tackle a major hostile state threat to our democracy.
Protecting our democratic discourse and processes from hostile foreign interference is a central responsibility of Government, and should be a ministerial priority.” 34.
The report also considered whether the Intelligence Community had all the powers and tools it needed to counter Russian Hostile State Activity.
Under the heading “Protecting democracy” it stated: “The Digital, Culture, Media and Sport (DCMS) Select Committee has already asked the Government ‘whether current legislation to protect the electoral process from malign interference is sufficient.
Legislation should be in line with the latest technological developments’.
We note that physical interference in the UK’s democratic processes is less likely given the use of a paper-based system – however, we support the DCMS Select Committee’s calls for the Electoral Commission to be given power to ‘stop someone acting illegally in a campaign if they live outside the UK’.
Separately, there is the question of influence over our democratic processes.
Questions have been raised over whether electoral law is sufficiently up to date, given ‘the move from physical billboards to online, micro-targeted political campaigning’.
We note – and, again, agree with the DCMS Select Committee – that ‘the UK is clearly vulnerable to covert digital influence campaigns’.
In this respect, we have already questioned whether the Electoral Commission has sufficient powers to ensure the security of democratic processes where hostile state threats are involved; if it is to tackle foreign interference, then it must be given the necessary legislative powers.” 35.
In July 2020 the Government published a public response to the ISC report.
It stated that: “The UK’s free and open democracy is one of our nation’s greatest strengths.
However, we know that certain states seek to exploit our open system to sow division and undermine trust in our democracy, and those of our allies, through disinformation, cyber-attacks and other methods.
We have made clear that any foreign interference in the UK’s Democratic processes is completely unacceptable.
It is, and always will be, an absolute priority to protect the UK against foreign interference, whether from Russia or any other state.
We have worked with industry, civil society and international partners to implement robust systems to secure our Democratic processes and deter attempts to interfere in it.
This work is undertaken with the utmost regard for the freedom of the press, political and parliamentary discourse and freedom of speech.
We will always balance the need to secure our Democracy with our duty to uphold our values.” 36.
The Government acknowledged that it was “almost certain that Russian actors sought to interfere in the 2019 General Election through the online amplification of illicitly acquired and leaked Government documents.” The response also referred to “several incidents during the 2019 General Election including distributed denial of service attacks against political parties, and suspicious emails received by candidates.” However, the Government had seen “no evidence of successful interference in the EU Referendum”.
37.
The response continued: “Whilst there is no evidence of a broad spectrum Russian campaign against the election, any attempt to interfere in our democratic processes is completely unacceptable.
There is an ongoing criminal investigation and it would be inappropriate for us to say anything further at this point.
...
The Intelligence and Security Agencies produce and contribute to regular assessments of the threat posed by Hostile State Activity, including around potential interference in UK democratic processes.
We keep such assessments under review and, where necessary, update them in response to new intelligence, including during democratic events such as elections and referendums.
Where new information emerges, the Government will always consider the most appropriate use of any intelligence it develops or receives, including whether it is appropriate to make this public.
Given this long standing approach, a retrospective assessment of the EU Referendum is not necessary.” 38.
The risks posed by disinformation was already recognised by the League of Nations.
By virtue of the International Convention Concerning the Use of Broadcasting in the Cause of Peace, which was signed in Geneva on 23 September 1936, the High Contracting Parties undertook to prohibit and stop the broadcasting within their respective territories of any transmission which would be to the detriment of good international understanding (by, inter alia, incorrect statements) or which would incite the population to acts incompatible with the internal order or the security of a territory of a High Contracting Party.
39.
The Joint declaration on freedom of expression and “fake news”, disinformation and propaganda (March 2017) was issued by the United Nations (“UN”) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (“”OSCE) Representative on Freedom of the Media, the Organization of American States (“OAS”) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (“ACHPR”) Special Rapporteur on Freedom of Expression and Access to Information.
40.
Together, they noted the growing prevalence of disinformation and propaganda in legacy and social media, fuelled by both States and non-State actors, and expressed concern that disinformation and propaganda were often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek, receive and impart information and ideas of all kinds.
41.
In this Resolution the Parliamentary Assembly expressed concern about, inter alia, the spread of disinformation campaigns aimed at shaping public opinion and trends of foreign electoral interference and manipulation.
In PACE’s view, these represented a challenge for democracy, and in particular for the electoral processes throughout Council of Europe member States, affecting the right to freedom of expression, including the right to receive information, and the right to free elections.
42.
According to PACE, in order to address disinformation challenges in the context of democratic elections, Governments of Council of Europe member States needed to: 43.
PACE therefore called on Council of Europe member States to implement a number of strategies from a European and global perspective which were targeted both at elections and candidates in elections as well as the political process more generally, and to create a model that includes co-responsibility and multiple regulatory and conflict-resolution approaches.
(a) European Commission for Democracy Through Law (Venice Commission): The impact of the information disorder (disinformation) on elections (November 2018) 44.
According to the author of this report, “Today we are witnessing the parallel proliferation of information and its pollution at a global scale.
The internet-based services have enriched and diversified news sources, facilitating individuals’ access to information and their decisions on the most crucial matters in democracy, notably on the choice of their legislature.
However, at the same time, a new era of information disorder (CoE Information Disorder Report, 2017) distorted the communication ecosystem to the point where voters may be seriously encumbered in their decisions by misleading, manipulative and false information designed to influence their votes.
This environment potentially undermines the exercise of the right to free elections and creates considerable risks to the functioning of a democratic system.” 45.
As a consequence, she believed that “[t]he guarantees of a level playing field aimed at ensuring fair, clean and clear campaigns are under threat”.
(b) Council of Europe: Disinformation and Electoral Campaigns (June 2019) 46.
This report provided an overview of the legal framework in a number of different States.
In respect of the United Kingdom, it said the following: “United Kingdom The British Electoral Commission has called for increasing transparency for voters with regard to the practice of digital electoral campaigns.
It has provided recommendations on the responsibility of digital campaigns, spending on digital campaigns, the transparency of payments for digital campaigns and enforcement of these rules.” 47.
The report noted that many countries clearly were aware of the dangers of the manipulation of public opinion during electoral campaigns and comprehensive efforts were being made to implement new regulations to counter disinformation.
However, there remained many obstacles to drafting effective rules that were compatible with constitutional and international standards.
48.
The report made a number of recommendations falling into three categories: 49.
Both Council Regulation (EU) 2022/350 of 1 March 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as well as Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine underlined the need to further strengthen the Union’s and Member States’ resilience as well as their ability to counter hybrid threats, including disinformation and influence operations.
Both noted in paragraph (6) of their respective Preambles that “[t]he Russian Federation has engaged in a systematic, international campaign of media manipulation and distortion of facts in order to enhance its strategy of destabilisation of its neighbouring countries and of the Union and its Member States.
In particular, the propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States.” COMPLAINTS 50.
The applicants complain under Article 3 of Protocol No.
1 to the Convention that the respondent State breached its positive obligation to investigate hostile State interference in its democratic elections, and that it failed to put in place an effective legal and institutional framework to secure its obligations under that Article.