The Electoral Commission is a recent innovation in our democratic system; an experiment that has failed. Originally conceived as filling a circumscribed functionary role (of dubious need in the first place), it was when set up by the Blair Government given a large, intrusive, poorly framed and undemocratic remit, which allows it to sit as policeman, judge, jury, and executioner on those public spirited and blameless citizens who decide to participate actively in elections and referenda. The Commission has a Head of Regulation with no legal degree, and officials who were widely perceived as biased or political. The Commission passed judgement on, and fined, citizen participants without due process or, it appears, without proper understanding of very basic legal concepts such as “beyond reasonable doubt”; it flouted its own procedural rules without there being any outside body or ombudsman that could be asked to rein it in. If citizens choosing to be engaged in elections or referenda break the law, the Crown Prosecution Service and the police are there to deal with that, without any need for the Commission. On the other hand, when the police and the CPS decline to prosecute any such incident, it is unconscionable that despite that, unqualified officials at the Electoral Commission can fine those citizens, and post reports on the Commission’s website, that remain posted forever, asserting that the citizens broke the law: all in such a way (as described in detail below) that it can prove almost impossible for the citizens to vindicate themselves. The police and the CPS are – have to be – well equipped to deal with any infractions of electoral or referendum law; at the end of the day they do, anyway, review any allegations of serious infractions – as they did in the case of Vote Leave.
The Electoral Commission is therefore not just, as discussed above, dangerous; it is also redundant. The Commission should be abolished forthwith, and its functions (but not its extraordinary powers) transferred to the various competent authorities who traditionally ran these matters, some of them for decades and centuries prior to the EC’s existence. It follows that the Commission’s current proposal, that its powers be enlarged, must be rejected out of hand.
Quis Custodiet Ipsos Custodes?
Who will guard us from the guardians?
The Electoral Commission, initiated only in the year 2000, has been a disaster; it represents the worst excesses of the creeping ‘Administrative State’. Inevitably, the response of this quango to the clear evidence of its malfeasance has been to double down, demanding that its budget and sanctioning powers actually be increased. But a look at the record, reviewed on the following pages, shows that the only proper action to take is to close it down:
A. The Electoral Commission was created as a solution to a perceived problem that all agreed was at worst only a small one –and which in reality didn’t exist at all
B. Those advocating a Commission be set up had proposed it have only a limited role
C. As set up, however, by the Blair government in 2000, the Commission was given considerable scope and powers, part of an ongoing expansion of the Administrative State
D. The matters placed under the Commission’s purview had all been well managed over the preceding centuries without need for a regulator. Existing institutions could have continued managing them perfectly well, as before
E. Setting up the Electoral Commission for this role, sidelining both Parliament and the Courts/Judiciary/Police, was undemocratic. Honest citizens voluntarily engaging in the democratic process were exposed to captious and arbitrary persecution
F. In the 2016 EU referendum, such persecution fell hard, in an entirely unwarranted way, on Vote Leave and other campaigners for Brexit. The Commission should be required to answer some hard questions on its attitude and actions since 2016
G. The Commission’s recent actions have created a situation where honest citizens will now understandably fear to engage in the democratic process for elections or referenda, especially if the EC is allowed to continue. Who, having behaved blamelessly, will want to expose themselves to having years of their life taken away, having to defend themselves against financial sanctions and worse, their reputations attemptedly brought into disrepute?
H. The Commission should be abolished entirely. Reverting to how these matters were managed pre-Commission, its remit should be shared among existing competent authorities.
I. I offer suggestions as to how the Select Committee should investigate and act on the Electoral Commission’s malfeasances over the past four years.
A. The Electoral Commission was created as a solution to a perceived problem that all agreed was at worst a small one –and which in reality didn’t exist at all.
Here I rely on advice and anecdote, having not been involved in these matters in the 1990s. Members of the Select Committee will have good experience of the points I mention here. What is seen as the original precipitating event for calls to set up an Electoral Commission (which was eventually brought into action in 2001) occurred in the 1994 European Elections. Richard Huggett stood as a “Literal Democrat” candidate for the Devon and East Plymouth seat, taking more votes than the Conservative Party margin over the Liberal Democrats, leading to a legal challenge by the Liberal Democrat candidate. That legal challenge, as I understand it, lost: the Literals argued in Court that the robust good sense of the British electorate was enough to ensure fairness in these matters, and so the Court found. Nonetheless, Parliament in its wisdom, under Tony Blair, later decided that a controlled register of political parties was needed. It at first decided –as so often in events that later developing into oppressive regulation—a light-touch way of doing that: it ordered (1998 act) that “The register shall be maintained by the registrar or other officer who performs the duty of registration of companies in England and Wales under the Companies Act 1985”. Control of the register was then, however, in 2000 transferred to the Electoral Commission, in the legislation setting up that body.
B. Even those who advocated setting up the Commission had proposed it have only a limited role
Setting up an Electoral Commission was proposed by the Committee on Standards in Public Life (CSPL), in its 1998 “Fifth Report”, on funding of political parties, that was “presented to Parliament by the Prime Minister by Command of her Majesty”. Thus we have the telling sight of an unelected quango suggesting that another unelected quango be set up, to control elections and referenda. The Labour party had, in its manifesto, committed to ‘reform’ of financing of parties. (Others can opine on whether or not this advantaged Labour by creating limitations on individual donors, which was the clear intent of the Blair government’s ‘reforms’. Labour did, and does, derive much of its funding from Unions; such funding was not affected by the new law.) Thus, in the 2000 legislation there was much about Campaign Finance reform, as well as setting up the EC both to hold the register of parties, and to invigilate party funding. What I cannot understand at this stage is why the EC was given considerable fining and other sanction powers.
The CSPL clearly said the following, on p.148 of its 1998 report:
“11.6 We ought perhaps to state explicitly that there is one role which we do not envisage the Election Commission playing. A number of our recommendations involve the creation of new criminal and civil penalties, and there already exists, in any case, a substantial body of justiciable electoral law; but we do not envisage the Election Commission in any way functioning as, or substituting itself for, the ordinary courts. The Election Commission should not be, or be thought to be, a judicial body”
This was a clear and pretty much unarguable point: it would be undemocratic to give the Electoral Commission (which the CSPL had dubbed the ‘Election Commission’) powers that properly belonged to our renowned and in the main respected system of policing and courts. It is possibly a reflection of the times we live in that CSPL is this month consulting further; not on whether its original recommendation, above, should not be brought back for reconsideration, but on whether or not to recommende the EC’s recent demands, for even larger fining and sanctioning powers.
C. As set up by Tony Blair’s government in 2000, the Commission was given considerable scope and powers, as part of an ongoing expansion of the Administrative state
As discussed above, the scope of the electoral commission morphed, as the legislation was created, from the original idea of holding a register of parties, to overseeing party finances. Almost inevitably, and despite that clear recommendation of CSPL mentioned on the preceding page, fining and sanctioning powers for the EC were then added in.
The creation of this enlarged and powerful regulator was bound to create major problems. (To enlarge its powers even further would be even worse).
To point out a few aspects:
- The EC does not regulate elections and has no experience of doing so. Elections have always been administered by Returning Officers, locally and efficiently. This has led to an inexperienced EC overreaching itself when it comes to regulating Referenda
- Returning Officers recognise they have no discretion, and are happy with that. This allows elections to be run cleanly and quickly and to be got over with swiftly. Contrary to that approach, the EC restlessly seeks to expand ever-more greatly its discretionary powers, so that it can interfere more. This among other problems creates potential for a longer period of uncertainty after the event. The Returning Officers’ lack of discretion is vital because when you introduce choice (discretion), you introduce the possibility of, and possible perception that there has been, bias. Think of a candidate who registers at one minute past midnight. Discretion could allow that candidate to be accepted. But what then of the candidate who is 5 or 50 or 500 minutes late? And what if you refuse that second candidate, and then are accused of having exercised a bias in favour of the first? This is not in the least a conceptual point. Scrutiny of the EC’s registrations by campaigners for the 2016 referendum shows a last-minute Remain campaigner putting in a botched application a couple of days before the vote; being told by the EC that it was not a proper registration; and the individual then submitting the proper application many days after the referendum had been and gone, having spent money prior to the vote despite having been told it had botched its application. The EC nevertheless allowed the registration of the campaigner as of the date of the original submission, thus making the campaigner’s expenditure legal. This was because the Commission felt they had the discretion to do so. This Remain campaigner had spent considerable amounts of money in the final day or two of the referendum, ie before they had been properly registered. (All registration applications that I have seen, including this one, were signed off by Bob Posner, now CEO of the EC.)
- The EC allowed themselves full discretion even when the legislation clearly forbade it. This point was at the heart of the BeLeave/Darren Grimes case. The EC tied themselves into knots attempting to show Grimes had done something wrong, and asserting that they had the right to put special (retrospectively made up!) conditions on an individual’s ability to be registered as a campaigner. (See eg para 72 of the judgement of His Honour Judge Dight CBE showing how the EC, in this case Louise Edwards, played fast and loose with retrospective decisions.) If we as a nation want the fullest possible participation in our democratic processes, we should be against having a regulator who can come up with capricious and potentially biased ways of excluding some would-be participants – especially any who cannot afford, or have difficulty with access to, legal help whether in registering themselves, or defending themselves against later arbitrary proceedings.
- The self-aggrandizing EC sought to widen its role and the time it took to investigate and pursue, going way beyond electoral law. It is an accepted feature of electoral law, indeed of our democracy, that an election needs to be fought and over, quickly, with the new regime in place in an unobstructed way as soon as possible, and campaigners able to go back to their lives. Electoral law has tight time limits on when (only up to one year) and how (never more than once on the same point) petitions or prosecutions can be brought. But the EC investigated Vote Leave three acknowledged times on the same point, and secretly, we believe, a fourth time, over a period of three years. None of this would have been possible if referendum law had more explicitly been given the same non-discretionary strictures as electoral law, or if the law had been properly clarificatory, so as to prevent the Electoral Commission from taking liberties with ‘discretion’.
- The EC indulged complainants, way beyond what the law allowed. The law gave 6 weeks only for a challenge. The EC neither drew attention to that, nor enforced it. Only one investigation of any matter was allowed, unless new evidence emerged, yet the EC investigated Vote Leave three times on the same point, with (despite their false and, even now wholly unsubstantiated, claim) no new evidence. Again, awarding themselves discretion opened the Commission to accusations, it seems to me deserved, of bias in the actions they then took.
- Given that the only two issues are registration of party names, and overview of finances, why is the EC needed for that? The finance of a candidate in elections is declared locally, which has worked for over 150 years. Why not the same with referenda? As this is controlled by Returning Officers in elections (650 winning candidates), why not have a committee of senior Returning Officers to oversee these matters for referenda (1 winning candidate)? Why not make registrations, as before, the purview of Companies House? Remember – if there is no discretion, then registration is not a complicated matter requiring detailed knowledge or investigation. If that were done, it would still be possible for rival parties/campaigners to check and take appropriate steps when they uncovered any matter of concern; there is no reason to introduce an ambitious Regulator into the mix, one who might hanker, as it has become clear the EC did, to use discretion to go after certain campaigners (and not others).
D. The matters placed under the EC’s purview had all been well managed over the preceding centuries without need for a regulator. Existing institutions could have continued managing them perfectly well, as before
The UK has a carefully constructed and highly developed democracy and legal system. These have evolved over centuries and are the envy of the world. They have always had checks and balances to prevent abuse. Moving to a system where a regulator –made exempt, as this paper shows, from many of those checks and balances– has had severe consequences. This regulator is run by professional career administrators. They don’t have expertise in policing or even, it transpires as regards key enforcement officials, the law. When they have legal qualifications, they flunk elementary tests in their knowledge (Dight Judgement, para 56). Why would they be given powers that not only flout all our careful democratic checks and balances, but that inevitably, on Parkinsonian principles, they seek aggressively to expand over time?
The creation of the EC was a perfect example of “If it weren’t broke, why did you change it?” The EC should be closed down.
Its various powers should be returned, reverting to what used to be:
- To Companies House to keep a register of candidates or campaigners •
- To Returning Officers, as is the case now with elections, but to a committee of senior ROs for referenda, for declarations of donations and expenses •
- To police and courts for investigating and prosecuting infractions.
Above all, the legislation could and should be made tighter, specifically forbidding discretion on most points, so that any self-important regulator, should any such still exist, is prevented from stepping in and making up the rules both to give itself a role and, intentionally or otherwise, allowing bias to creep in under pretext of concern. The regulator under no circumstances should be allowed to retain its existing powers of fining and sanction or, even worse, be given enlarged powers.
An additional problem with regulators, as further discussed in the next section, is that if the regulator has views on the topic – as, it appears from what we know, the EC indeed had —then interventions from those who hold similar views, congenial to the regulator, will be entertained more favourably than will be interventions from those who hold more uncongenial views. This is clear when we look at the EC’s refusal even to speak with Vote Leave on many occasions over many months, whereas (to take but one of many examples) all it took was an expression of (true or faux) concern by Gordon Brown to result in the EC raiding the Brexit Party’s offices (a raid that was, unsurprisingly, entirely fruitless – although not without sending a signal to the electorate who were about to vote).
A politicised regulator – a very easy place for an ambitious regulator to find itself in —is prey to the worst kinds of pressure. The moment it becomes clear that the regulator will buckle under pressure – as the EC appears to have done early on (starting in 2016) when challenged by the Good Law Project – then going forward, every loser in every election or referendum has the incentive first to create a hoo-ha (on social media and elsewhere), and then to put pressure on the regulator to investigate and find against the winner. The result can be chaos, and misery for those caught up in such shenanigans.
The conclusion has to be that having a regulator for this crucial aspect of democracy has been a grave mistake; an entirely unnecessary action; one that should be reversed as soon as possible.
E. Setting the Electoral Commission up in this way, usurping both Parliament and the Courts/Judiciary/Police, was undemocratic. It exposed honest citizens voluntarily engaging in the electoral process were exposed to captious and arbitrary persecution
There are many general issues with regulators:
- What kind of costs are borne by society when regulation, heavy-handed or otherwise, prevents innovation; or the free expression of ideas; or the free implementation of plans that could be useful for society?
- What is the cost-benefit trade off of unleashing regulators on multiple societal activities?
- What biases are introduced into society when the regulatory mentality is allowed to run riot?
Properly regulating the regulator is important not just for electoral law, but also for how the polity in this country is run in general. There has been for some time a general level of disquiet among many in the UK that Parliament and Government have too often sloughed off their responsibilities to govern, by deputing many of these responsibilities to regulators. Infamously, former UK governments also conceded, over decades, a large percentage of their law-making to the European Commission in Brussels. That last problem will, by the end of 2020 we hope, be comprehensively addressed. However, and with regard specifically to regulators, it should be observed that using regulators to govern society goes against the United Kingdom’s tradition, in large part because regulators are naturally driven toward a “Napoleonic Code” approach in how they govern: “Everything that is not specifically allowed is forbidden”.
The British tradition, contrary to this, is of Common Law, where “Everything that is not specifically forbidden is allowed”. When the ‘Napoleonic’ approach is taken by the regulator, there is enormous scope, compared with that in Common Law, for the regulator to interpret creatively what is and is not allowed – and as a result, for the individual and the populace in general to be oppressed. This is precisely what happened to Vote Leave (VL).
It is against the tradition of British freedoms to have a proliferation of regulators across large swathes of our society. The trend raises significant issues. Just one of these issues is: what kind of person is attracted to having a career in regulation – that is, a career where you can tell other people what they can and can’t do? Where you are given the power to come down on them, quite often disproportionately, when they don’t do what you (who happens to be the regulator) personally would prefer them to do? What kind of supervision over, and governance of, our regulators should we have, in order to ensure that any latent biases or bullying instincts in such regulators, separate from the intent of any legislation, are not allowed to flourish? Quis custodiet ipsos custodes?
The Electoral Commission does contain a Board, with an appointed Chairman, and representatives of three major political parties (though not the SNP) – presumably (at least in theory) to prevent this sort of thing. But the fact is that all three of these political parties were formally on the other side of the referendum campaign; they all campaigned for “Remain”, while the EC’s Chairman, a former ambassador to Paris, publicly bemoaned the result of the referendum. (It is a fascinating detail of the past four years as to how so little shame or embarrassment was exhibited in such naked and unpunished displays of Remain sentiment among those who were supposed to be above the fray.) The Chairman, and three other Commissioners, are alleged to have failed in their duty of impartiality (Article in The Telegraph). Had the Commission’s Board contained, let us say, a member of UKIP (which after all had many MEPs at the time, and so held a set of views that was representative of a large slice of the electorate’s views), one can imagine that Board discussions regarding the Commission’s proposed actions and investigations would have been very different – and more searching.
When the Electoral Commission makes ‘findings’ against any campaigning body, that is a serious matter. Deciding to go ahead with the findings against Vote Leave and BeLeave should not have been left to the Executive of the Electoral Commission. The political opinions of at least one senior member of that Executive, as well as of the Chairman – whether as regards the referendum or as regards the Conservative Party – have been publicised sufficiently (article in the Sun) that it should be clear that those individuals might have difficulty in clearing their minds sufficiently as to be impartial.
If a certain type of person is attracted to be a regulator of this sort, then it follows that a certain degree of political bias absolutely has to enter the frame. Not surprisingly, public perception, not to mention the evidence, is that the Civil Servant class, from which the majority of officials for Regulators and Quangos are drawn, is massively pro-Remain. The Electoral Committee seems to have been no exception. Thus, we are justified in suspecting an instinctive bias there against Leave campaigners, and an overeager willingness to believe that the Leave campaign somehow, some way, broke the law.
F. In the 2016 EU referendum, such persecution fell hard, in an entirely unwarranted way, on Vote Leave and other campaigners for Brexit. The Commission should be required to answer some hard questions on its attitude and actions since 2016
These theoretical points took all-too-concrete form in Vote Leave’s experiences at the hands of the Electoral Commission in the four years since the referendum. Post June 2016, there were three remaining Directors of Vote Leave who had volunteered to stay behind to wrap the organisation up, in line with the requirements of PPERA. Each of the three Directors had successful and irreproachable business credentials, achieved over many previous decades, each Director having a multi-decade history of successfully dealing with regulators of many stripes. Each of the three were there because they had, originally, responded to the PPERA legislation’s call for volunteers to come forward to fight on each side of the EU referendum question.
Each of the three had willingly given up several years of their business career, from 2014-2016, in order to prepare for, and to fight, the referendum. As they had believed would be the case, their side –Leave– won. Those three Directors, and Vote Leave’s CEO, Matthew Elliott, turned conscientiously, in July 2016, to the task of closing down Vote Leave – an organisation that had been formed solely to fight the ten-week referendum campaign in 2016. All were unpaid. Each had the expectation that soon, within a few weeks or months, they could go back to their previous lives and productive business activities. However, to their astonishment and woe, it eventuated that they then spent a further four years fighting off various spurious and unwarranted allegations; in conflict (much against their will) with their regulator; having to raise (with great difficulty) over £1 million merely to defend against the various lawsuits and regulatory attacks that were made on Vote Leave over the four-year period. Because of the highly political nature of the referendum, the clamour made by those who campaigned for the other side of the referendum was acute (this clamour still, of course, continues, with calls even now for an extension of the interim period, and other such attempted delaying/blocking tactics to the result of the referendum).
Another Parliamentary Select Committee added greatly to the confusion by, for a while, giving what seemed faux-naïve credence to baseless allegations that tied Vote Leave to Cambridge Analytica, Russian interference in the referendum, etc; using the Committee process to present information in a slanted way that, again for a while until VL fought it off, seemed to imply malfeasance on Vote Leave’s part. The allegations were shown to be groundless or trivial, but there has been no apology for the original baseless allegations, and there has been far less publicity for the exoneration than there was for the original claims.
The main area where Vote Leave has been –through no fault of its own– unable to exonerate itself fully in court against the EC is in the claim that during the referendum period it conducted a ‘Common Plan’ with another campaign, BeLeave. The reason why VL has not been able to clear itself of this claim is instructive: it is because of the disproportionate power of the regulator, and the enormous cost in time and money –beyond VL’s and the three Directors’ resources– that it would have taken to acquit VL. Current legislation has it (astonishingly for a country that loves its liberties) that the EC acts as investigator; prosecutor; judge; jury; executioner. The EC does not, it appears, have to show its evidence, so that if there is further evidence the EC possesses that exonerates Vote Leave, we may not have been shown it, and likely will never see it. (We certainly were not shown, at the time, evidence that was –we now find– already in the hands of the regulator – the withholding of which evidence raises the question of a possible attempt at, or contemplation of, entrapment.)
I offer here an example of the almost inevitable abuse of this unwarrantedly concentrated power. On November 27th, 2017, VL was told, having been cleared in two earlier investigations on the claim that Vote Leave had a ‘Common Plan’ with Beleave, that the EC was nevertheless commencing a third investigation on exactly the same point. Such an investigation could not legally be opened without new information. The EC asserted it did have new information, but would not say what it was. There was prolonged correspondence between the EC and VL on the nature of this claimed new information; Vote Leave believed that the EC did not have any. We were eventually proved right; the EC subsequently finally admitted, on 17th July 2018, once the investigation was concluded and it was too late, that their fresh investigation was not opened on new information – the EC had possessed the information since 2016; this information anyway was only deriving from a minor and irrelevant anomaly in a third party campaign’s (Veterans for Britain’s) reporting of the timing of an expense. (Based on His Honour Judge Dight CBE’s judgement in the Grimes case, it seems clear that this anomaly should not have resulted in any sanction on VfB – see paras 92(3) and 93 of that Judgement – and it was anyway not related at all to the alleged offences they proposed to re-investigate.)
Another of many examples of the EC’s abuse of power: the EC fined Vote Leave on three matters: first, that VL had a Common Plan with BeLeave. This was their main claim, discussed extensively in this submission and comprehensively refuted in our various responses to the Commission (as well as in various remarks by presiding judges in related cases). The other two represent extraordinary petty dictatorial behaviour by the Commission: in the first incident, VL had been given, with only a few days’ notice, a deadline of 1pm on a Tuesday to respond to a letter from the Commission demanding various information. VL (staffed, remember, with four unpaid, parttime legacy individuals with no other resource apart from legal) scrambled to respond, and sent its reply in by 3.50pm that Tuesday. The deadline missed by just 2 hours 50 minutes. For this lateness (which is unlikely to have caused the EC any inconvenience whatsoever), Vote Leave were fined £20,000.
Compare that with the Commission routinely taking weeks or months to respond to Vote Leave’s enquiries – often, as with Vote Leave’s offer to meet with them, not replying at all.
In the second incident, Vote Leave was fined £1,000 for failing to provide invoices for eight payments. A single statement was originally provided by Vote Leave to the EC for the eight (relatively small) payments lumped together, along with an explanation that we had been unable to get the supplier to give us separate invoices. The Commission stated (and still claim) that Vote Leave “fail(ed), without reasonable excuse, to include required invoices and receipts for eight payments.” If failure by the supplier to provide individual invoices is not a reasonable excuse, what is? If providing an overall statement of the eight items does not represent a legal return, what does?
Above all, the Electoral Commission was able to utilise enormous, disproportionate legal resource to defend itself when we appealed their finding; they hired one of the most expensive QCs in the land and surrounded him with a bevy of barristers and high-priced solicitors. At one stage, the EC claimed – well before the matter had even come to court – that their costs already incurred, which they would seek to claim from us in the event we lost, had risen to £400,000. This implied that their claimed costs all the way through the court hearing could easily have risen to double that amount. (At different times, the Commission’s solicitors, confusingly, came up with several different estimates; it was impossible for Vote Leave to know which estimate would be the one they should expect, if and as the Commission to find itself in a position to come after Vote Leave for costs at some future date.)
We applied to the courts for a cost cap, so that Vote Leave could be in a position of knowing what our overall costs would be – thus, we hoped, allowing us to be sure that we could cover them. To our dismay, the courts flatly refused that cost cap, so that Vote Leave was exposed to the possibility of having to pay, as well as its own costs, all the Electoral Commission’s costs – however high they came to, whatever stage of appeal the EC took the matter to, and however unwarranted their vast splurge of public money might be. It cannot be right that there is such inequality of arms. If the regulator is allowed to spend incontinently, then Parliament must improve access to legal aid for the accused to respond to regulators, or otherwise introduce cost control measures on the regulator, to enable those who are accused to have a cost proportionate ability to defend themselves.
All in all, Vote Leave calculated that if it proceeded with all its appeals against the Electoral Commission (as well as against the Information Commissioner – the latter, prompted quite possibly by inappropriate informal communications between the two regulators, had merrily jumped in with an equally spurious claim against Vote Leave), we would have been, had we lost, in a position of having to find a further £1.3 million overall to pay all of our legal costs, over and above the £1 million already previously spent since the end of the referendum. And of course, if Vote Leave won, the Electoral Commission could then have doubled down by appealing the judgement – unilaterally increasing Vote Leave’s exposure to way more than £1.3 million. Had we gone ahead, in circumstances where our donors had declined to commit to this very large additional amount, then any such cost, in the case of a loss, would have fallen upon the three Directors – two of whom had already each contributed hundreds of thousands to the legal fund, the third not having deep pockets. None of the three felt that they could, or indeed should, commit to such enormous, uncapped cost.
Vote Leave went back one last time to its always-generous donors, to see if they were prepared to cover this enormous estimate of £1.3 million. The donors saw no point in spending even further large amounts in what they had always seen as a biased and unpredictable process. Their refusal was not surprising given that since the referendum, they had already donated £1 million, which had already been spent (not to mention the much larger monies donated by them during the referendum itself), with seemingly endless litigation in prospect.
Accordingly, Vote Leave had to throw its hand in, and was never able to have its day in court.
So, the structure of the legislation, where in the case of an appeal the regulator can pile on unlimited costs, with a threat of eventually hitting the campaigner (in this case, Vote Leave) with all of those costs, and with the courts refusing to protect the campaigner with a costs order, means that a regulator, years after the event, can make – as we strongly believe to have been the case in this instance – a false and entirely unjustified finding against the campaigner (Vote Leave); pile on the costs; push hard to ensure the campaigner gets no costs protection from the courts; and thus ensure that the campaigner is, as a result of all this, financially precluded from appealing the finding from the regulator – a regulator who, as I pointed out above, is acting as policeman, prosecutor, judge, jury and executioner.
All this, furthermore, ties up a group of volunteers, who have other careers and obligations to attend to, for some four years after the referendum date, subjecting them to significant costs, anxiety, lost opportunities and loss of life choices. This surely cannot be right, and casts a dark shadow over any willingness of future volunteers to participate in such notional events. It needs to be addressed urgently.
If you establish a regulator that might have an institutional ideological bias (as it almost inevitably will, given what is well known of the political leanings of the public sector, civil-service class that provides most of a regulator’s officials, and its boards), it is essential that the regulator not be emboldened to introduce that bias into their (inappropriate) interpretation of the law. The issue with Vote Leave revolved around whether or not we had a “Common Plan” with another campaigner, BeLeave (BL). On the face of it, the allegation was ludicrous. BeLeave was run by a young fashion designer, living in Brighton (where he was at university), running a campaign aimed at the youth vote. His campaign was featured during the referendum in an article by the BBC, who singled the campaign out as showing a fresh approach to the issue. BL took an entirely different approach to the referendum than did VL. Aimed at young people, focusing on a narrow range of issues, BL could not have been more different from the Vote Leave campaign. Yet somehow, and informed by meretricious allegations from a disaffected individual who had worked briefly at Vote Leave (and whose allegations were firmly rebutted in what we submitted to the Electoral Commission; the EC, however, gave no evidence of having even read our rebuttals, let alone did it acknowledge them), the EC claimed that Vote Leave and BeLeave had a “Common Plan”.
The only even slightly credible reason making it possible in any way for the Electoral Commission to make an allegation against Grimes was because the wording in the relevant forms (forms created by the Commission) was unclear (His Honour Judge Dight judgement, para 11). The Commission, up to and including its head of enforcement, Louise Edwards, and its now-CEO Bob Posner, were castigated by Judge Dight for failing to understand even how to apply the concept of “Beyond Reasonable Doubt” (paras 56, 62, 102, 105, 106, 107, 109). The Electoral Commission apparently considered itself able to use any argument they wished to (or, indeed, no argument at all – the Commission’s finding does not actually contain an argument, rather it is just a listing of a few random points of evidence, and an assertion that these amount to proof of a Common Plan), to state that ‘beyond reasonable doubt’, the two campaigns were joined in a Common Plan. (It is noticeable that there’s considerably more evidence of a Common Plan among various Remain campaigns, but the Electoral Commission dismissively refused to consider this as a possibility, despite the Rt Hon Priti Patel MP’s various lengthy representations to them on that matter.)
Vote Leave wished to test the Electoral Commission’s allegations in court. We believe that the Electoral Commission was extremely concerned about the possibility of that happening, with the likelihood of the Commission being shown to have been partial and illogical (as indeed it was shown to be by the Darren Grimes judgement). I have described above how it became impossible for us to pursue that path, in large part because of the Commission’s own actions that made it difficult for us to do so. Appendix 1, written by a current Vote Leave director, demonstrates both the extreme complexity of the rules surrounding the definition of a Common Plan, and the very confusing and varied way in which those rules were communicated by the Electoral Commission (Parliament having fallen into the trap of failing to hobble sufficiently the Regulator’s discretion), as well as demonstrating the very considerable and detailed efforts that Vote Leave took to try to ensure that it stayed within a very difficult regulatory framework. It underlines the importance of clarity of communication and procedural consistency, clearly not present in the Electoral Commission’s approach to this – as it turns out central – issue.
The Commission’s attacks against the Leave result were of course not confined to Vote Leave. For example, as mentioned earlier in this submission, in last year’s EU elections the EC raided the Brexit Party’s office just two days before the vote in the UK. This action was clearly likely to have an effect in deterring voters from voting BP (although who knows: such was the EC’s poor reputation by then that it might even have had the opposite effect). It seemed clear that the EC’s intent, if anything, was to cast doubt on the BP’s integrity. Even worse: not only did the EC make sure that its action was highly publicised ahead of time; it even seemed that the decision to raid the BP came after pressure from one of the BP’s leading opponents. Here from the Guardian:
“The Electoral Commission has said it will attend the offices of Nigel Farage’s Brexit party to “review its systems” after Gordon Brown urged them to investigate concerns over the legality of the party’s funding”
What price impartiality? What price fairness? How much did this action by the EC put people off from participating in the nation’s democracy? One does not have to like the Brexit Party to see that episode as deeply sinister.
G. The Commission’s recent actions have created a situation where honest citizens will understandably fear to engage in the democratic process for elections or referenda, especially if the EC is allowed to continue. Who will want to expose themselves to having years of their life taken away, having to defend themselves against financial sanctions and worse, while their hardwon personal reputations are brought into disrepute, despite their having behaved blamelessly?
As things stand, there is a complete mismatch between the cumbersome, bureaucratic and often misconceived approach of the EC, and the desire of the British Public to participate freely in the democratic process. The EC wishes to be the decider as to whether or not you can register as a campaigner; wishes to fine you (more and more!) if you do or are suspected of doing something the EC don’t like; wishes to have the right to decide who can be a political party or not. Until now, political parties in this country can hold almost any view. It’s a truism that some political views formerly considered ridiculous are now seen as mainstream; such views should be allowed free rein in a proper democracy. But if the EC view of the world, and how it should run an important part of that world, is allowed to stand (aided and abetted perhaps by the CSPL), then you have the threat of a drift toward what some other, deeply undemocratic countries have: only state certified parties, the public being given only their views, with little or no scope for freedom of individual political action. The chance of advancing good ideas, novel or otherwise, and allowing the country to make up its mind about those ideas in a democratic fashion, recedes alarmingly.
H. The Commission should be abolished entirely. Reverting to how these matters were managed pre-Commission, its remit should be shared among existing competent authorities.
I have elsewhere in this paper already made these points, but to be clear, the EC should be closed down, and its various powers should be returned, to what used to be:
- To Companies House to keep a register of candidates or campaigners
- To Returning Officers, as is the case now with elections, but to a committee of senior ROs for referenda, for declarations of donations and expenses
- To police and courts for investigating and prosecuting infractions.
In addition, it should be made clear that there can be no discretion; the rules should be the rules. We hope this outcome can be achieved. Purely to avoid “falling between two stools”, I offer, in Appendix 2, a number of further suggestions (for curtailing the EC’s undemocratic behaviour) should PACAC decide not to recommend abolition.
I. I offer suggestions as to how the Select Committee should investigate and act on the Electoral Commission’s malfeasances over the past four years.
I believe that Vote Leave’s experiences with the Electoral Commission, during and since the 2016 EU referendum, justify a call for a major internal investigation into the EC, so as to uncover and publicise its discreditable behaviour post the referendum.
Vote Leave were never shown, at any time between November 27th 2017 and June 5th 2018 when the EC issued its initial ‘Notification’, the actual evidence that was claimed as the basis of the ‘notice’, nor have we (in any case) ever seen any argument that shows how the evidence, later listed in the EC’s ‘findings’, stacked up to proving, or even indicating, the ‘Common Plan’ transgression that the EC alleges. VL ultimately established that whatever evidence the EC possessed had been in the hands of the EC since 22nd February 2018 at the very latest, yet the EC never interviewed anyone from VL regarding this evidence, despite an explicit offer of an interview on 6th March 2018, and numerous earlier offers that were conditional only on VL being given an understanding of the evidential basis for the reopening of the investigation.
The withholding of evidence by the EC raises the question of the EC’s procedural and documentary competence, and even a possible attempt at, or contemplation of, entrapment. At the end of para 39 of his Judgement, Judge Dight CBE makes a comment that can be interpreted as alluding to a similar possibility in the Darren Grimes case.
The EC, it appears, believes it was entitled to re-open an investigation, for the third (or even fourth) time, on no new evidence, more than two years after the referendum, on a matter where it had already cleared Vote Leave twice. In doing so, it seemed directly to be bowing to inappropriate pressure from enraged opponents of the referendum result. Throughout this saga, the EC acted as if it believed it has no duty of candour, no duty to show the accused all the material relied upon (nor the material reviewed but not relied upon), so that the accused could fairly meet any allegation against them.
The evidence for my saying this is laid out, in great detail, in Appendix 3, a letter written in July 2018 to the Electoral Commission. A read of that document shows the Electoral Commission breaking its remit over and again, even going so far as the CEO of the EC publicly, on a Radio 4 Today Show interview, stating damaging untruths about Vote Leave– statements that to this day have never been withdrawn, with no sanction or reprimand ever made on the EC’s then-CEO, despite our protests to the EC. (The CEO serenely moved on to head yet another Quango, the Trade Remedies Authority.) The EC apparently believed it could – and it did – ignore written offers made by Vote Leave to meet with them so as to give evidence. The EC believed it could proceed to judgement – and did – without bothering to take us up on our offer to meet with them, even falsely claiming that to the contrary, VL had refused to talk with them. The EC believes it can, apparently – and it did – ignore VL’s painfullyput-together, many-hundred-page, evidence folder, a folder that clearly demonstrated that the EC had got it wrong and that it had abused its powers. The EC can then, only 9 working days after we submitted that folder (so that it is inconceivable that they reviewed our folder properly or tested its evidence), proceed to fine VL, unjustifiably, in the early hours of the morning; and then less than half an hour after telling Vote Leave it had done this, their CEO went onto the Today Show to publicly excoriate VL and make (as clearly detailed in Appendix 3) untrue claims about VL.
The EC also believes, apparently, that it is entitled to take it upon itself to make selfserving judgements about what it should say publicly. It issued press statements without opportunity for Vote Leave to comment; it issued biased reports, which have been left to stay forever on its website even when (as is most obviously the case with Darren Grimes) its claims have clearly and comprehensively been refuted. The legislation does not – but should – explicitly ban such activity and insist on full redress being made when the accused individual has been cleared.
These reports, in the way they were written, also led many to assert that Vote Leave had, by paying its fine, acknowledged its guilt. This is far from the case; indeed, in various court judgements, it has become increasingly apparent that Vote Leave would likely have won its appeal against the EC’s fines, had it been able to afford to continue. For the EC to crow about its ‘win’ is galling in the extreme – and wrong.
This outcome was a direct result of what we believe was the Electoral Commission’s deliberate ploy of creating an enormous cost base (our own legal costs, on our side, were significantly less than theirs). Given the refusal of the courts to grant us a costs cap, we could, had we lost, have become, as shown above, liable for that. Shamefully, the Electoral Commission had already nakedly showed its hand by applying to court that Vote Leave’s appeal be dismissed, because – they claimed – we would not be able to afford to pay the Electoral Commission’s large costs in the event that we lost. In other words, the Commission were highly aware of, and very keen to exploit, the fact that their costs were so very high that it would be a stretch for Vote Leave to pay them, should Vote Leave lose the appeal. (The Select Committee may wish to ponder whether such tactics are desirable in a supposedly even-handed public body.)
But more importantly, although we sought that Judicial Review during 2018, soon after the Electoral Commission finally alleged (some two years after the event) that we had broken the law on the “Common Plan” issue, it took over a year for our complaint to be heard: we were initially refused permission for that Judicial Review; we then had to appeal that; and only when the appeal court got to review the evidence did they finally agree with our view that the Commission’s behaviour needed to be reviewed.
All of this cost considerable money and further drained our resources (Vote Leave again applied for a cost cap on this matter and, again, was refused). The Rt. Hon. Lord Justice Hickinbottom stated: “the case raises important issues in relation to the powers of the Commission”. The matter was, indeed, considered important enough that it was then taken up by the Lord Chief Justice who decided to chair the appeal panel himself. And yet, the Electoral Commission was allowed to obfuscate and delay yet again, insisting that they did not have time for the matter to be heard early (they had had many months to prepare for this already), so that the case was not heard until October 3rd 2019. The court at that point decided that the law indeed permitted the Commission to publish its untruthful reports on us and on Darren Grimes (even though Darren had won his case), regardless of the facts to the contrary that had since emerged; and to leave them posted on their web site forever. At the least, therefore, the law needs to be changed.
And, whether or not PACAC recommends abolition of the EC, some hard questions need to be answered. In particular, I suggest three actions by PACAC:
First: Require the Electoral Commission to respond to this submission. Give the EC a comprehensive list of questions to reply to in full. Six points are made in section C, earlier, of this submission, which I suggest you pursue with the EC. Further, a starter list of suggested procedural questions is provided in Appendix 4. In addition, I recommend you:
- Require the EC to disgorge all internal documents in which they discuss the allegations against VL by the self-styled ‘whistleblowers’; and the EC’s internal reaction to them. (We believe such documents will reveal EC bias against VL.)
- Get the EC to respond to His Honour Judge Dight’s criticism implying that the EC seem to have had zero understanding of that most fundamental of legal concepts, “Beyond Reasonable Doubt”. Ask them what that criticism does to their finding against Vote Leave.
- Require the EC to disgorge all formal and informal communications, on Vote Leave and other Leave campaigners, between the EC and the Information Commissioner.
- Require the EC (duty of candour, as in normal legal proceedings) to reveal in full what their submission to the MPS contained.
Second: Make any future legislation much clearer. In particular, ensure that there is perfect clarification as to what is meant by “Common Plan” (including ensuring that the matters raised by the GLP, see next, are dealt with beyond argument). The regulator has been able to make merry hay with Vote Leave because of the utter imprecision of this phrase, “Common Plan”, as it is defined in the legislation. Also remove discretion wherever possible.
Third: Prevent frivolous, politically-motivated and costly law suits. An entity styling itself “The Good Law Project”, clearly made up of individuals who wished the result of the referendum had been the opposite, commenced in 2016/17 what we believed at the time to be, and was indeed eventually shown to be, an utterly (and very possibly purposively) frivolous lawsuit demanding that the law be interpreted so that a “donation” would also mean an “expense”. The implication of such a finding, if upheld, would have been that Vote Leave had broken the law in any event (as would have many other campaigners, on both sides of the referendum – the whole thing would have descended into farce). Bizarrely, Vote Leave found itself on the same side as the Electoral Commission in fighting this allegation. Vote Leave was put to considerable legal expense to try to help the Electoral Commission to try to defend this matter. (The court derogated the Electoral Commission’s approach and preferred Vote Leave’s approach.)
Realising the futility and unaffordable expense of all this, Vote Leave ultimately withdrew from those proceedings in their later stages. This was in large part first, because the court refused to hear any oral argument from Vote Leave (yet considered, and referred favourably to, our written argument – so the court was inconsistent); and secondly, because the Electoral Commission had, it seemed petulantly, instructed its lawyers not to receive from Vote Leave, or discuss with us, our work product – which we had offered to them, as we believed it would help them (their own arguments were rejected by the court). The Commission, however, instructed its lawyers not to communicate with us in any way on this matter. In such circumstances, we saw no point in, nor indeed any possibility of, helping the EC further on this.
Even more bizarrely, Lord Justice Leggatt and his co-judge found in favour of the Good Law Project. The result of this finding, if sustained, would have been to throw all electoral law, not just referendum law, into chaos. Expenses would have had to be double-counted (defying the principles of double entry book keeping); donors would be thrown into the position of inadvertently becoming campaigners; statutory limits on the amount that could be expensed on one side of an electoral campaign would have been halved because expenses would have been double-counted; and so forth. If anything could have been better designed than this judgement to show the ludicrous state of electoral and referendum law, I cannot think what.
The appeal court, chaired in this instance by the Lord Chief Justice, heard the Electoral Commission’s appeal on the Leggatt Judgement last year. As I wrote to Sir Bernard Jenkin’s PACAC at the time: it is not clear how the court will opine, although I cannot see but that they must reject Lord Justice Leggatt’s peculiar finding and thus reject the Good Law Project’s claim. My predictions proved correct. I had added: Thus yet another massive waste of state and private resources will come to an end, but not before a total abuse of the system has, in my opinion, occurred. Whatever the outcome, what is absolutely clear is that the law is impossible to interpret with confidence; either Lord Justice Leggatt, or both the Electoral Commission and Vote Leave, were wrong in their interpretation of the law, ie in thinking that a donation is not an expense. And if Vote Leave and the Electoral Commission are wrong, then so are all campaigns who also donated (the implication would probably be, for example, that certain private individuals, who contributed seven-figure sums to various Remain campaigns, themselves became campaigners, which means that they too, as well as other Remain campaigns, broke electoral law).” (And they broke it in a much bigger way, note, than Vote Leave was accused of doing).
The Appeal Court found as I predicted they would have to, and ruled against Leggatt. Chaos would have resulted had it not. My words above give but one illustration that the electoral law is not fit for purpose; but it is very noticeable that all of this led to considerable grief for, and only for, Vote Leave over the past four years – not for anybody else on the other side of the referendum. The GLP JR used up (as quite possibly had been intended by GLP’s mysterious anonymous donors) considerable amounts of VL’s cash and time, that could, as it transpired (but we couldn’t know that at the time), have been better used by Vote Leave in its appeal of the EC’s fine. Thus the bizarre, incoherent GLP lawsuit contributed to VL having to throw its hand in.
Were Leggatt to have been upheld, with the Electoral Commission losing the case, would the EC have immediately opened up investigations into, resulting in fines of, all those Remain campaigns? I suggest that anyone holding their breath while awaiting such an outcome would have been unwise. But I do, in any event, point out that all this shows that the law is not fit for purpose, in this as in many other ways, and needs amending to clarity and certainty for those who have to operate under it – particularly when there is a regulator who seems willing to use that law against one side, the side officials in the regulator were opposed to, and not against the side whose position they favoured.
We at Vote Leave hope that this submission will help the Select Committee in its deliberations. PACAC may conclude – I hope it does – that the Electoral Commission should be wound up. The temptation for partiality and false findings proved, in my view, just too great for the EC. They should not be provided such an opportunity again. June 2020
Avoiding a “Common Plan” Based on advice and discussions with the Electoral Commission
1 – This memo summarises advice given by the EC to VL, and discussions between the EC and VL, before and during the referendum period, as it bore upon the issue of how VL could (and we believe did) avoid being in a Common Plan with other Leave campaigners and its Honest Assessment in relation to that matter
EC advice summary
2 – The EC has stated (to the Digital, Culture, Media and Sport Select Committee) that the law on common plans/concert parties is not clear, but nonetheless offered guidelines, to both Remain and Leave campaigns as to what is permitted. The following paragraphs summarise that guidance which has been offered by the Commission, guidance which (possibly unfortunately) employed everyday language rather than the precise terminology in the regulations in order to assist campaigns to determine, in controlling their regulated expenditure, whether or not their working together with other campaigns constituted what was described as a “Concert Party”, but which they have subsequently tended to describe as a “Common Plan”.
3 – The EC itself explicitly recognised, in testimony to the House of Commons’ Digital Cultural Media and Sport Committee on 15th May 2018, that the legislation was set at a “broad high level”and was therefore “not clear” for dealing with what they described as the “middle ground”: www.data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/digitalculture-media-and-sport-committee/disinformation-and-fake-news/oral/82877.html
4 – The EC has provided four sources of clarification
- Its public guidance
- Its private guidance to Vote Leave
- Documents associated with Vote Leave’s designation
- Its recent rulings EC public guidance
5 – In its Guidance on the 2016 Referendum, the EC asserted that ‘working together’ – that is acting in concert, in pursuance of a “a plan or other arrangement” – means “spending money as a result of a coordinated plan or arrangement between two or more campaigners during the referendum period that is intended to, or is otherwise in connection with, promoting or bringing about a particular outcome in the referendum.” http://www.electoralcommission.org.uk/__data/assets/pdf_file/0005/194621/Working-togetherfor-EU-referendum-campaigners.pdf
6 – The EC adds that “when considering if you are ‘working together’ you should apply the “guiding principle … that, in all cases, you should make an honest assessment, based on the facts, whether you or another campaigner are spending money as part of a coordinated plan or arrangement.”
7 – The Guidance goes on to indicate that “you are highly likely to be working together if, for example:
- “You spend money on joint advertising campaigns, leaflets or events
- “You coordinate your spending with another campaigner – for example, if you agree that you should each cover particular areas, arguments or voters
- “Another campaigner can approve or has significant influence over your spending including leaflets, websites, telephone scripts or other campaign materials”.
8 – It adds: “In our view, you are not working together if, for example:
- “You have discussions with other campaigners that do not involve decision making or coordinating your plans
- “You speak at an event organised by another campaigner, but do not participate in any other way
- “You do not consult other campaigners about what you should say in your campaign or how you should organise it”
9 – It should be noted that the Commission’s guidance, in discussing spending money together (paragraphs 5, 6 and 7 above), follows the wording of the law. It is when the Commission extends its ruling and guidance beyond the idea of joint spending that, it would seem, it goes beyond what the law described. EC private guidance to VL
10 – On 21st September 2015 William Norton (“WN”) of VL, nonpracticing solicitor with wide experience of electoral law, and Secretary to the Responsible Person Committee, met with the EC, with two representatives of other campaign groups, Conservatives for Britain and Labour Leave, to clarify issues surrounding common or coordinated plans/concert parties. The EC’s minutes for that meeting state that the EC representative said that “as a point of principle” they “are encouraging groups to work with the designated campaigner, as this is likely to lead to a better-conducted referendum for voters”. [Page 203 and 204 of VL’s 3rd July 2018 Response to EC notices of 5th June 2018]
11 – The minutes also state that in addition to an honest assessment, the campaign should “provide an audit trail to support their conclusion” Documents associated with VL’s designation
12 – Consequently the Vote Leave Further Evidence document https://www.electoralcommission.org.uk/__data/assets/pdf_file/0004/200659/Vote-Leave-LtdFurther-evidence.pdf , part of VL’s application for designation in March 2016 to the Electoral Commission, specifically refers to “other advisory groups”, stressing that “these groups are not accountable to Vote Leave, nor is Vote Leave responsible for their actions. They are external groups”. The group included, inter alia, BeLeave (specifically identified as “youth campaigners”), Muslims for Britain and Veterans for Britain. The document comments further: “These groups ‘appointed’ themselves when they decided to campaign for a ‘Leave’ outcome in the referendum, and to contact us in response to our way of campaigning on that issue. They do not report to Vote Leave, but there is a designated point of contact within our organisation for each group, from within the Outreach team. Either side may relay views and advice to the other.” Clearly, there had to be cooperation between VL and these groups, because VL, in applying for lead campaign designation, was expected by the EC to demonstrate that it had the support of other independent campaigns on the Leave side, and it would be perverse to expect VL to do that without any cooperation.
13 – The Electoral Commission Board Paper 27/16 entitled “EU Referendum: Designation of Lead Campaigners” and dated 13th April 2016 https://www.electoralcommission.org.uk/__data/assets/pdf_file/0015/200904/2016-04-13-EC27-16-EU-Referendum-Designation-of-Lead-Campaigners.pdf , states (pp71 and 72) that the VL application has “Substantial evidence, over and above that which would be sufficient to demonstrate the intended extent of future engagement with other campaigners not supporting the application”. It goes on to note that the “Head of Outreach, Cleo Watson, heads a unit responsible for developing links with these less experienced informal campaigning groups and providing them with advice, assistance and encouragement”. It adds that the application “does demonstrate an intention to actively engage with other campaigners for the ‘Leave’ outcome.” This formal EC guidance provided encouragement for Vote Leave in its stated intention to work closely with (advise, assist, encourage) these separate campaigns and itself provided guidance to VL that engagement with other campaigners did not constitute a “Common Plan”, “Concert Party” or “working together” such as to require a joint expenditure return. As stated in para 11 above, VL had made it clear that these organisations were independent, which should clearly be taken as meaning that they were not in a Concert Party or Common Plan with VL. Based on VL’s interactions at the time with the Commission, the EC had very much appeared to accept this and had raised no queries.
14 – It is also clear that VL’s indicated support for independent campaigns was the key factor in its designation as the lead Leave campaign. The EC’s Board minutes of 13th April 2016 are explicit https://www.electoralcommission.org.uk/__data/assets/pdf_file/0012/200910/2016-04- 13-Board-minutes-EU-Ref-designation.pdf The full conclusion in relation to VL is that it is agreed that “Vote Leave appears to represent to the greatest extent those campaigning for the ‘Leave’ outcome and be designated for that outcome”. This put a great responsibility on VL to ensure that it did indeed “represent” all Leave campaigns to the fullest extent possible within electoral law. Recent EC rulings
15 – The EC letter dated 28th March 2017 to Vote Leave closed down its second investigation into Vote Leave donations to BeLeave and therefore implicitly accepted the framework and rationale for the honest assessment made by the Responsible Person for Vote Leave, Alan Halsall (“AH”), in his letter of 9th September 2016 as part of the first investigation. The latter specifically sets out the following: • The making of a donation does not of itself constitute joint campaigning • There was no collaboration or agreement between Vote Leave and BeLeave in 2017 in relation to any spending related to the donation • Whilst there was an implicit expectation that funds would be used to promote a vote to leave the EU, no conditions were imposed as to the use of the donations; • There was no, nor had there ever been at that point any collaboration or agreement between BeLeave and VL in relation to targeting voters, messaging, content, strategy other than the making of the donation itself. It was not a joint advertising campaign • Vote Leave had no influence, knowledge, consultation or agreement with BeLeave as to the content, channels used or other aspect of its campaign; the timing and the amount of the donation were irrelevant to the question, being factors solely of the availability of funds.
16 – The acceptance of these points is clearly set out in paragraphs 27 to 31 and 45 of the EC’s letter of 12th October 2017 to Deighton Pierce Glyn acting for the Good Law Project in their Judicial Review claim against the EC:
27. Further, campaigners on the same side of the argument can liaise and discuss campaigning approaches without meeting the threshold of joint spending within the meaning of the legislation. Campaigners can use the same suppliers. Campaigners can gift donations to another campaigner by paying for something on their behalf. 28. Again, there is nothing inconsistent with the law in Vote Leave making a donation to Mr Grimes by way of payment to a supplier. While a degree of communication would clearly be necessary to implement such an arrangement, this does not in and of itself mean the joint spending controls are engaged.
29. Whilst some of these activities may be suggestive of joint spending, whether such activities count as joint spending in terms of the rules will depend on the specific circumstances. The facts must be looked at on a case by case basis.
30. The Commission’s assessment addressed whether there was evidence to suggest that Vote Leave and/or Mr Grimes had delivered an incorrect spending return in respect of these donations. This included consideration of whether the joint spending controls had applied, and if so if they had been applied correctly. Any implications for the referendum spending limit would follow from these initial issues.
31. In this case, the assessment considered information from a complainant and other sources, as well as documentary material and explanations obtained from Vote Leave, Mr Grimes and Aggregate IQ. All the evidence was subject to analysis by the Commission. We concluded that this information was consistent with the money paid by Vote Leave to Aggregate IQ for services provided to Mr Grimes being donations, and with the services provided by Aggregate IQ to Mr Grimes not being in pursuance of a common plan with Vote Leave. We therefore did not have reasonable grounds to suspect an offence under PPERA or the EURA.
45. There will only be a “plan or other arrangement” if there is some agreement reached as to how expenses incurred will be used.
17 – The final paragraph 45 in the above quote is important to parse: it explicitly states that for there to be a Common Plan there must be agreement as to how the relevant expenses “will be used”.
18 – The EC had already in its email of 20th May 2016 confirmed that the supplying of material to other campaigners without having a coordinated plan or agreement was likely to be a donation. In its letter to Darren Grimes (as per the evidential file of documents passed to Vote Leave on June 5th 2018 – Facebook message of September 9th 2016, the EC absolutely confirmed that the donations by Vote Leave to BeLeave were legitimate. The existence of the 20th May 2016 email was drawn to the Electoral Commission’s attention in Alan Halsall’s letter of 19th August 2016. However it is clear from an EC internal email chain ending 19.10.17 disclosed as part of a Freedom of Information (“FOI”) response, that the 20th May 2016 email had not been taken into account by the EC in reaching its conclusions in the two investigations which it closed on 4th October 2016 and 28th March 2017, even though it provided additional support for those conclusions. Nor did the EC acknowledge, or at the time reveal, to VL that it had confirmed to BeLeave the legitimacy of those donations.
19 – By indicating in its letter of 15th January 2018 to Priti Patel MP that it had concluded that there was no “reasonable suspicion” that an electoral offence had been committed by Britain Stronger in Europe and associated campaigns, the EC also gave a clear indication of more of its criteria, and the level of evidence needed, which it had used in establishing whether there had been a “Common Plan” on the Remain side – by in effect absolving a designated campaign with the following characteristics:
- Eight campaigns linked by three donors providing £5m in donations out of £9m in total declared expenditure
- Daily campaign (early morning) meetings between all campaigns on the Remain side • Five suppliers in common between the eight, including three advertising agencies (a connection that clearly has an uncannily direct bearing on the other allegations regarding VL, BeLeave and the advertising intermediary AIQ)
- Each campaign with similar messages and no clear understanding or claim of any distinction of approach or message across the campaigns
- Extensive cross-use of advertising material (eg distribution of the Remainers’ “don’t fuck my future” videos across these campaigns)
- Four of the eight campaigns, set up less than one month before the referendum, one of them 13 days before, and all set up quickly with no evidence that any of these new groupings had any separate existence or campaign activities before their last-minute setup, and with no evidence that they had any independent purpose save to spend money from donors (who were also the major donors to the lead Remain campaign, Stronger In), • Money given to these new campaigns at a time when Stronger In, the designated Remain campaign, had reached a ceiling in its authorised referendum expenditure.
CONCLUSION: Framework for an honest assessment of donations in the context of avoiding a “Common Plan”
20 – All Leave campaigns were working for the “particular outcome of a vote to Leave”, just as all Remain campaigns were working for the “particular outcome of a vote to Remain”. Thus, seeking to ensure that “two campaigns are not working together to promote or bring about a particular outcome” is not as easy to establish as saying both were campaigning to Leave – as the EC has straightforwardly admitted to the Digital, Culture, Media and Sports Committee. The Electoral Commission’s guidance on these matters is therefore, and not surprisingly, hard to decipher, once analysis focuses on assessment, regulation and legislation.
21– Based exclusively on all this EC guidance and clarification, VL concluded, from the advice it had received, that the following framework was appropriate for its Honest Assessment of its donations to BeLeave:
21.1 – To avoid a Common Plan or Concert Party on a particular activity, two campaigns must have
- Independent leadership
- Separate decision making
- Separate messages
- An audit trail relating to relevant decisions
21.2 – A designated campaign has an obligation to advise, assist and encourage other campaigns. Doing so does not result in the two campaigns having a ‘Common Plan.’
21.3 – Two campaigns will not be adjudged to have a Common Plan/Concert Party just because:
- They have donors in common
- They interact with each other during the campaign
- They have common suppliers
- Their messages occasionally overlap
- No joint expenditure on the particular ‘Common Plan’ or activity which particular expenditure (and only that expenditure) could then be stated to be part of a ‘Common Plan’
Daniel Hodson Director, Vote Leave 4th June 2020
Proposals as to how the Commission’s overweening and undemocratic behaviour should be hobbled, through future clarifying legislation, in the event that the Select Committee declines to recommend the EC’s abolition.
Should PACAC opine that the Electoral Commission should not be abolished, then based on the above discussion, I make the following four recommendations to the Select Committee:
- First: Strictly limit the powers of the Electoral Commission
- Second: Provide more robust oversight of the Electoral Commission and get more diversity of views into its composition
- Third: Make the financial dice less loaded on the side of the regulator
- Fourth: Ensure the EC’s behaviour is better subject to Judicial Review.
First: Strictly limit the powers of the Electoral Commission.
The Commission is seeking to have its powers expanded, and its fining powers increased. We believe that in doing this, they give their ideological bias away. The EC claimed, on entirely unclear evidence, that Vote Leave had behaved illegally, while declining even to consider the actually egregious, and substantially documented, behaviour of the Remain campaign. This implies the existence of ideological bias, and a conscious or subconscious willingness to allow this ideological bias to have full play upon the political process in this country. Now, asking for increased fining powers raises the truly Orwellian prospect of scaring public-spirited volunteers away forever, in any electoral or referendum matter where such volunteers have reason to suspect the Commission is ideologically on the other side of the argument. This must not be allowed to happen. The current situation is bad. It needs amelioration, not worsening. In recommending that the EC’s powers be curtailed through changes in the law, we in particular suggest that:
- Evidence and argumentation that the “beyond reasonable doubt” standard has been met must be explicitly laid out for all findings, with evidential disclosure at the same standard as in any court proceeding. This is not made clear in the legislation. It became possible for the Electoral Commission to state, as they did (I don’t know how they were able to say it with a straight face), that they found against VL “beyond reasonable doubt”, without their ever stating what their specific evidence and arugment was that allowed them to allege that. Judge Dight, in the Grimes case, stated, in essence, that the EC lacked understanding of how to apply the “beyond reasonable doubt” standard. They appeared to be making their BRD ruling in this way: ‘here’s a theory; here’s a piece of evidence that indicatively, but in no way dispositively, could be said to support that theory; we give no consideration to other evidence that implies the opposite of that theory; we find “beyond reasonable doubt” that the theory is correct.’ If the Electoral Commission had been required to show how the evidence they offered met the BRD standard, and had been required to justify their position by stating why they believed the evidence proved (BRD) that an offence had been committed, we believe they would have found it impossible to go ahead and make the findings they did against Vote Leave.
- Referrals to the police should only be allowed on strictly defined parameters: when referring to the police, the Commission should be required to provide, to both police and accused, its full dossier and entire rationale for claiming that its finding is “beyond reasonable doubt”. This BRD standard was asserted by the Commission in Vote Leave’s case, but without any logical presentation as to how or why they felt they could say they believed that. Any accused party should by statute be provided with a full file of the allegations made by the Commission: neither the Responsible Person for, nor any member of, Vote Leave, has ever seen whatever it was that the Electoral Commission provided to the police on this matter – despite the police eventually declaring there was no case to prosecute. Certainly, the police complained to Vote Leave’s Responsible Person about the Electoral Commission’s documentary failings in providing evidence to substantiate their accusations against him (Appendix 5).
- It should be made absolutely clear in the legislation that there can only be one investigation on any given topic unless there is truly new evidence: the Electoral Commission conducted three (we believe possibly four – the fourth remaining, however, never officially declared) investigations on the same matter over three years. On opening their third investigation, the EC claimed they had new evidence justifying that re-opening; but it later became clear (in evidence the EC were required to provide in another case) that there was in fact no new evidence1 . Further, it is essential that once elections or referendums have been run, the polity is allowed to get back to business as usual as soon as possible, without persistent and 1 The EC eventually made it clear that the ‘new’ evidence, that they used to open up the third investigation, was in fact evidence (about the campaigner Veterans for Britain) that they had possessed since 2016, and that had been considered already, in both the first and the second investigations ongoing efforts to prevent that, to subvert the result, and to prevent business as usual through attempts to litigate and re-litigate past results. If the regulator wishes to claim that new evidence is available, they need to say what that new evidence is, rather than hiding behind “confidentiality”, or indeed (as was the case in this instance) a blank refusal even to answer the complaint. Vote Leave was not even allowed to judicially review the fact that the Commission reopened the same investigation, with the same evidence, for a second and third time, without in fact there being any new evidence (and, apparently, would not have been allowed to raise that fact in its appeal, had we continued with it). The overwhelming conclusion has to be that the Electoral Commission reopened its investigation as a combination of its own political proclivities, and of kowtowing to politically-motivated group that was seeking to relitigate the result of the referendum; but unless your Committee forces the EC to disgorge all evidence on this point, we will never be able to show that.
- Stricter time limits should be imposed on the EC: this matter is, currently, better dealt with in electoral law than in referendum law, but in both, it is essential that the nation be allowed quickly to get back to a normal situation after epochal events such as general elections or referenda. The legislation needs to make it far more clear that the regulator should not be allowed to carry on pursuing individuals or organisations more than one year after the end of the referendum or election, except in truly exceptional circumstances (ie through, and only through, criminal referrals). The current law massively encourages politically motivated campaigners, aided by an apparently partial regulator, to create a multi-year hoo-hah –as was done here– in order to shackle the freedom of action and the finances of their opponents; and by spinning and twisting, to seek to gain political advantage.
- Parliament must address the inequality of arms: there needs to be cost control so that the accused can afford to challenge the regulator. This can be achieved with cost capping, fixed levels of recoverable costs, and/or access to legal aid.
Second: Provide more robust oversight of the Electoral Commission and get more diversity of views into its composition.
Vote Leave was particularly at a disadvantage because it could find no independent person or body associated with the Electoral Commission to complain to – other than the Speaker’s Committee itself, which (under the circumstances pertaining at the time, which will be well known to you) was unlikely to pay any heed to any such complaint from VL. As stated earlier, the Board of the Electoral Commission does contain representatives of three major political parties (though not the SNP). But as I pointed out, all three of these political parties were formally on the other side of the referendum campaign; they all campaigned for “Remain”. The EC’s Chairman, a former ambassador to Paris, publicly bemoaned the result of the referendum. He, and three other Commissioners, are alleged to have failed in their duty of impartiality (Article in The Telegraph). Further evidence exists of Board members speaking, and tweeting, against the result of the referendum. Had there been, let us say, a member of UKIP (which after all had many MEPs at the time, and so held a set of views that was representative of a large slice of the electorate’s views) on the Board, one can imagine that the discussions regarding the Commission’s proposed actions would have been very different. As I said further above, deciding to go ahead with the ‘findings’ against Vote Leave, as in this case it did, should not be left to the Executive, or even the Board as currently constituted, of the Electoral Commission. The political opinions of at least one senior member of that Executive, as well as of the Chairman and the Board –whether as regards the referendum or as regards the Conservative Party– have been publicised sufficiently (article in the Sun) that it should be clear that those individuals might have difficulty in clearing their minds sufficiently so as to indeed be impartial. At the very least, legislation should provide, as regards the Electoral Commission, that:
- A proposal to find any entity in serious breach must be reviewed, and formally approved, by the Board. The proposal to make that finding must be provably in accordance with a true “Beyond Reasonable Doubt” standard, with argumentation put forward as to how it would be generally accepted that that standard had been met.
- That Board must contain clearly impartial individuals, with representatives from both sides of the relevant election or referendum.
- The Board must follow normal governance procedures, commencing every formal meeting with declarations of interest, including public statements of personal views where appropriate, and providing for removal of voting rights on issues where a conflict of interest occurs.
- The Commission must be required to follow very specified procedures before referring to the police: the Electoral Commission referred the Responsible Person of Vote Leave to the police without even interviewing him –this at a time when, as has been clearly established and despite the EC’s false claims on that point, Vote Leave had written unreservedly volunteering an interview, and the EC had interviewed VL’s accusers at least once (we believe, but are not sure because of the EC’s secretiveness, twice). There should be specified procedures that the Electoral Commission is required to follow, to ensure that it does not subject those it regulates to odious, onerous, unjustified situations. These should include face to face discussions on any claim that the law has been broken to a degree that police involvement is believed necessary.
- An Ombudsman should be created to receive complaints about the regulator behaving badly: numerous times over the past three years, Vote Leave has had cause for complaint regarding the Electoral Commission’s behaviour. We had nowhere to make that complaint, except to the regulator themselves. When we did that, our complaints were brushed aside, ignored. This proposed Ombudsman should not cost money to access.
Third: Make the financial dice less loaded on the side of the regulator.
The Electoral Commission is the creature of the Speaker’s Committee in the House of Commons. Apparently, it has no constraint (other than that Speaker’s Committee, which seems to have made no attempt to intervene on this point) on the legal costs it chooses to run up. Thus, it can resist every step of the way, as though it were some large FTSE or other corporation engaging in commercial litigation, using every device it can find to defeat the other side. This is just unfair and unBritish. Organisations such as Vote Leave have no independent existence outside their purpose of fighting the referendum – an event that ended four years ago. Its Directors were not of unlimited wealth, and did not in any event volunteer for service in the referendum in order to risk, unfairly, their financial position as well as years of their life on a whim of the regulator. They have other lives. Their contest against the regulator was, financially, entirely unequal.
At the very least, therefore:
- Proposed legal expenditures by the regulator should be more stringently reviewed by the Speaker’s Committee, prior to them being committed. If they are considered excessive, they should be denied. Using one of the most expensive QCs in the land, the Treasury Devil, and running up enormous bills, for example, is something that, had it been proposed, I believe any prudent Speaker’s Committee should have rejected.
- An equal playing field should be created for any entity wishing to appeal the Electoral Commission’s behaviour. For example, including in the legislation some guidance to the courts that costs should be capped, and legal aid provided to entities who are shown to have a good cause for appeal, who do not have the financial wherewithal to make that appeal. Include in this the right for that financial aid to go as high as whatever level the regulator has itself gone to in defending itself – why should the state allow unlimited free finance to its regulator yet deny that to the entity defending itself against the regulator’s depredations?
- Disclosure of Evidence rules should be brought in line with those in mainstream courts of law. This would provide judicial fairness to those accused; help them form a proper response to any accusation; and avoid any possibility or suggestion of entrapment. The Commission should be required to observe a duty of candour
Fourth: Ensure that the Commission’s behaviour is better subject to Judicial Review.
There are further issues with the PPERA legislation. After we were forced to abandon our main appeal, Vote Leave had one last chance of at least partly exonerating itself from the false findings of the regulator; it had appealed for a Judicial Review of the Electoral Commission’s behaviour. Here, the problem VL faced was partly the tortuous costly meandering timing of the court process, and partly that the legislation only allowed Vote Leave to challenge very limited parameters of the Electoral Commission’s behaviour. Indeed, His Honour Judge Dight made it clear in his judgement that even in our appeal, he would not have allowed us to ask for a ruling on a number of the Electoral commission’s tactics with us –not because our complaints were unjustified or not, but because, he said (as I understand it), that the law was not written in a way that entitled him to consider them. This is yet another major issue with the law –there were quite a few aspects of how the EC behaved which, by Dight, we could never have had scrutinised by a court, whether in this JR or in our main appeal. VL would never, as it turns out, have been allowed to challenge, as I understand it, the EC’s opening and reopening of the same investigation into us three (or perhaps four) times over three years, despite the Electoral Commission previously exonerating VL (driven, it seems, by wild allegations from frustrated Remainers, and with no new facts given to justify the third investigation). VL was not allowed to challenge the EC’s peremptory and arrogant behaviour towards VL in refusing us even remotely reasonable time to answer their questions (they themselves taking many weeks and months to respond to us on much easier questions from us). VL could not challenge the EC’s declining to meet with VL to discuss our situation; nor their withholding of evidence. Only the EC’s publication of a report about us, and thereby making wrongful claims about us in public, were allowed to be the subject of the Judicial Review. This is wrong, and if PACAC recommend the EC should continue (I hope you don’t), you should at least also recommend changes in legislation to allow better review of its behaviour.
Appendix 3 is available here.