The Peter Pan-demic

17 Oct

Over the last decade, there’s been a recurring question put to our leaders. That is, “what about young people’s future?” It is a line that has seemed cynical at times; used by anti-Brexit groups, for instance, to encourage support for overturning the EU referendum result. More recently it became the favourite among climate change activists. “The eyes of all future generations are upon you”, Greta Thunberg famously told world leaders at the United Nations climate action summit.

And yet, during the pandemic, it is a question that has been curiously absent – right around the time it is most needed. What is going to happen to the young with our Coronavirus policies, after all? I don’t think it’s selfish to wonder this; young people know that the crisis has presented leaders with impossible choices; they’re prepared to take on the huge tax bill coming, and they are deeply concerned about protecting their elders, whatever the newspapers suggest. Even so, they are not immune to the toll of this virus, and need to know that there is some hope for them at the end.

I don’t count myself as young, incidentally, as I’m 31 and going steadily grey. But I’m young-ish – a millennial, and I wonder about my future too. The Government’s recent Tier 2 restrictions, which – like many others – I am subjected to from today, has left me with deeper concerns than whether I’ll be able to meet friends. To me, it signals the continuation of what could best be described as “Economic Neverland”. Once my generation had aspirations for homes, families and the rest, but alongside the double whammy of 2008’s financial crisis, it feels that we are unable to grow up.

This crisis has, in many ways, been a “Peter Pan-demic”, if I may. It’s devastating for everyone. But we are consigning multiple generations to not being able to reach the markers of adulthood.

The first sign has been housing. Forget the picket fence, many people are moving back home with mum and dad. I know because I was one of them (lucky enough to be able to self-isolate first). My studio flat would have been intolerable over lockdown, and several friends made the same decision. Others are now back because they’ve lost their job or had to take a pay cut. No matter how much you love home, this is not the direction life is meant to go in.

Then there are the other challenges. I’ve been sad to watch friends cancel weddings this year, and the idea of having babies is almost certainly out of the question (even though many of us are in the pressing decade of our thirties). Conservatives have made massive advances in changing these facts – the housing algorithm was a very positive sign that MPs want to better the system – and yet the virus is a case of one step forward, two steps back.

I can only write this from a millennial perspective, but 16-24 year olds have been one of the worst affected groups; the most hit by job losses, as the number of people made redundant in the UK has risen to the fastest rate on record. Many cannot enjoy a full university experience, with Zoom replacing face-to-face teaching and Fresher’s Week now on hold for the foreseeable future. And it doesn’t bear thinking about what lies ahead for children, caught in the middle of school reopenings, which have increasingly become a political football.

Quite simply, I wouldn’t mind a Thunberg of the Coronavirus crisis – to remind leaders that “the eyes of all future generations are upon you.” Yes, the priority is to navigate the present – but our sleep-deprived politicians also have a duty to cast their minds to the decades ahead; to think about the sustainability of their policies, and what’s being asked of existing generations, and of those to come. From young people’s job security, to knowing they can settle down, there must be a way out of Neverland eventually.

Swire’s diaries help show how Johnson entered Downing Street, and has so far managed to remain there

3 Oct

Diary of an MP’s Wife: Inside and Outside Power by Sasha Swire

“When the wives get nasty, you know the men have a problem.” So says Sasha Swire after Sarah Vine, wife of Michael Gove, and Samantha Cameron, wife of David, “fur flying, have a set-to” at the 50th birthday party of Andrew Feldman, on 29th February 2016.

For “Dave feels he is being stabbed in the back by Gove”, who has come out for Leave. According to Swire’s friend, Kate Fall, who works at Number Ten, Dave “is taking it very personally”.

What is a trailing spouse to do? The Duke of Edinburgh and Denis Thatcher are among the men who had to work out an answer. In both cases they used humour carried well past the point of self-parody to ease the boredom and insignificance of the role.

But the trailing spouse is still more often a woman, and Swire knows what it is like. Her husband, Hugo Swire, was Conservative MP for East Devon from 2001 to 2019, an early supporter of Cameron and a Minister of State from 2010-16.

Sasha worked for Hugo as his researcher. Towards the end of the diary entry quoted in the first line of this review, she describes what she and H, as she calls him, have been doing down at their house in Devon:

“Meanwhile, down at Chaffcombe we are having difficult conversations about why we are backing remain when our instincts are to leave. I have to somehow justify it to myself as well as convincing H. I spend the whole weekend drafting an article for Hugo for the local press on why he is supporting in, and we finally decide to do it from a foreign affairs perspective.”

This is of some interest, for it reminds one that not everyone who supported Remain really believed in that cause. In Hugo’s case he only does so out of loyalty to Cameron.

It is true that some Remainers argued their case with fanatical zeal. But as Harry Williams remarks in one of his sermons, “All fanaticism is a strategy to prevent doubt from becoming conscious.”

Swire’s diary is not particularly well written. She often lapses into the bland editorialising to which one fears she resorted when drafting articles to appear under her husband’s name.

She is not a new Alan Clark. She is not even a new Chris Mullin, of whom I found myself writing, when reviewing a volume of his diaries:

“Mullin is a gentleman. He avoids inflicting gratuitous pain in his diary. He observes with a keen and even mocking eye the deficiencies of Blair and Gordon Brown, but is never ungenerous about their gifts. He does not betray confidences. The social connotations of the word ‘gentleman’ are foreign to Mullin, who is a plain-living socialist. The Tories who cause him most pain are those who behave in an ungentlemanly way, while the vulgarity of New Labour causes him distress.”

Sasha does not avoid inflicting gratuitous pain, does betray confidences and is often vulgar, though she clearly thinks it is rather grand, and even gentlemanly (a characteristic she attributes to her husband), to behave in this way.

And she has often not actually been at the events she describes. As far as one can tell (but rather irritatingly one can’t at first reading be sure) she was not at the Feldman birthday party. If she had been, she would surely have told us more about it.

On many occasions, she relates what Hugo told her when he got home from some event. There is a second-hand flavour to these reports.

Her diary reminds one of the disappointment which can be seen on the faces of so many MPs. Hugo had hoped to make the Cabinet.

As for Sasha, she is cross that her father, Sir John Nott, Defence Secretary during the Falklands War, has never been made a peer, and she finds that she herself is either ignored, or else reproached for not having a career of her own: “It’s always a weak point for me.”

In other words, like many loud people, she wants to conceal her own insecurities. Her inadequate command of tone springs from a fundamental indecision about how to behave:

“Political wives are deeply involved but have no official status. Do we play submissive? Do we play supportive? Do we get lippy?”

Sasha veers between these different approaches, but is temperamentally inclined to be lippy. She observes with a caustic eye the deficiencies of the men around her. In August 2011, when they stay for three days in Cornwall with the Camerons at Polzeath,

“D talks a lot about sex, as does H – they are typical of a certain type of Englishman who no longer knows how to flirt because they have become terrified of causing offence. What they do instead is become lewd and chauvinistic with each other, which is the safe zone, instead of with us. In fact if a woman actually came on to them I think their eyes would pop out of their heads.”

For all its glaring deficiencies, or in some cases because of them, this is an entertaining and informative book, and will be a valuable source for historians who want to see how opinion changed within the Conservative Party.

How did Boris Johnson become leader? Sasha is quite illuminating about this. In 2012, she is a loyal Cameroon, who writes:

“There seems to be something of a campaign going on at the moment to push Boris back into Parliament… worryingly, it seems to have captured the public imagination… Unfortunately the Olympics have given him a platform to parade his populist touch… The idea of His Blondness with a finger on the nuclear button scares the shit out of me; it also scares the shit out of me that people don’t see him as the calculating machine he really is. This is a man who has no obvious political identity or any proven ability to grasp difficult questions and decisions.”

In March 2016, as the EU Referendum campaign gets under way, Hugo reports back from a dinner in Mayfair that Cameron “is very fired up about Boris and determined to finish him off”.

In October 2017, she says Johnson’s star is sinking: “the past few weeks have highlighted how he is clearly not a leader-in-waiting”.

In November 2018, Hugo is recruited to the Dominic Raab leadership campaign.

In March 2019, she observes that the Johnson leadership campaign is “always shambolic”, an assumption which will prove unsound. She also quotes Rory Stewart going “completely insane” and telling some MPs, “It’s going to be Boris against me, and I’m going to take Boris down.”

In July 2019, by which time Johnson is on course for victory, she says “the odds that he will be the shortest-serving PM are pretty high”.

In August 2019, she goes to a “small and select” dinner at Number Ten and sits on the PM’s right:

“Boris is about the best placement you can get. Cheeky. Flippant. Enthusiastic. Bombastic. Ebullient. Energetic. We have a good laugh…

“I look at his rotund build, thick, creased neck, pale, sweaty face, and characteristic dishevelled appearance; he looks back, as if he is working out if I’m shaggable or past my sell-by date…

“I don’t know what will happen to him, because events make politicians, but I have changed my view of him. Yes, he is an alley cat, but he has a greatness of soul, a generosity of spirit, a desire to believe the best in people, a lack of pettiness and envy which is pretty uncommon in politics, and best of all a wonderful comic vision of the human condition.”

The PM has seduced her, though she also thinks he “is desperately lonely and unhappy on the inside”. These diaries show how Johnson got where is today, and has so far managed to stay there. He knows how to mend fences.

James Frayne: Do voters care about breaking international law, and if so, how much?

15 Sep

James Frayne is Director of Public First and author of Meet the People, a guide to moving public opinion.

How much of an electoral risk is the Government taking by threatening to break international law? There hasn’t, to my knowledge, been much published polling on the issue and I haven’t seen any qual either. I’m not sure how revealing any opinion research would be at this point, anyway. Not only is the issue highly complex, but the Government hasn’t communicated a settled position on its intentions – and, in turn, the issue has not been played out properly in the media or in Parliament.

The public have only seen complex snippets. It’s therefore extremely unlikely the Government’s threat to break international law will have had much of an impact on public opinion at all so far. This isn’t to say the issue isn’t important or won’t have an impact in time. But it’s much more useful to consider how opinion might change and what might change it. How might we anticipate this change? Six questions come to mind.

Will this just split down Leave-Remain lines? As we know from the 2019 election, most people are bored to death by never-ending negotiations to leave. As we also know, almost everything on the Brexit process splits down Leave-Remain lines. There’s almost no crossover, where Leavers take the side of Remainers on an issue and vice versa. The well has been poisoned; you just have to take the occasional peek at Twitter and see otherwise normal people spewing bile at each other over Brexit.

ConservativeHome has taken an unusual position here: it’s associated with Leave but has encouraged MPs to vote against the Government. How common will ConservativeHome’s position be? This is the crucial question. Until significant numbers of Leavers (particularly Conservative Leavers) come out and join ConservativeHome, it seems most likely that Leavers will tacitly back the Government. Public opinion would shift if more Leavers follow the Editor’s advice.

Will this just look like Brexit chaos? The entire Brexit negotiation process has been a massive fiasco. From the morning after the referendum, government on this has been a shambles. One of the reasons so many people wanted to ‘get Brexit done’ was because they wanted the chaos to go away. I wonder therefore whether many will just write this off as being just another cock-up. Government opponents will need to explain why this is a special case. At present, they haven’t yet been able to do this effectively, although the arrival of more senior Conservative politicians into the fray might change things somewhat.

Can the public ever be made to care about international law? International law is complex, of course. But my sense is that it can’t be simplified in the way those hostile to the Government’s threat are seeking to do. People like Blair and Major are talking about how Britain’s moral standing will be adversely affected and so on. While a reasonable point, there are two reasons this won’t work.

Firstly, because, Brexit partisans aside, and rightly or wrongly, most people still consider Britain to be a moral actor in the world; this alone won’t undermine that. Secondly, more importantly, because many believe other countries break international law all the time. That said, opinion would surely change if and when the public are confronted with the prospect of another country unilaterally changing a treaty they had agreed with us. (It’s also worth adding the straight reality that Tony Blair is hardly the best advocate for international law.)

What is the reputation of the law more generally? My very strong sense is that the English public have also lost respect for ‘the law’ more generally. They believe  the law no longer reflects natural justice and, that word again, fairness. Respect for the law has been slowly eroding for many years now, but it has been eroding very quickly in recent years. Increasingly, people have not only heard stories about pathetically weak sentencing, but they’ve also heard, in their eyes, perfectly reasonable Government policy decisions being unpicked by the courts.

The Establishment Left has claimed this shift in opinion amounts to a swing against an independent judiciary and the beginnings of a march towards a more political legal system. It’s nothing so thought-through; rather, people think the law no longer reflects right and wrong and therefore the accusation levelled at Britain – as being a law breaker – simply doesn’t have the same power that it once might have done

What do the public think about the EU’s behaviour during negotiations? It would be an exaggeration to say the mass of the public have followed Brexit negotiations closely. But, to the extent they have, my sense is that they think the EU has behaved with hostility towards Britain.

Varadkar, Barnier and Juncker seemed to revel in Britain’s difficulties during negotiations. The pro-EU British media liked to praise these politicians for this, on the basis they were teaching about the reality of its new position. But it was always going to be pointlessly destructive because it stored up English resentment that, when the time came, the Government would be able to tap into – as it now might well do.

Will the public cut slack to the Government over Northern Ireland? It’s important to consider the merits of the Government’s stated case – or, rather, what the public will think of these merits.

At one level, the Government has a very strong argument: it’s perfectly reasonable to argue Northern Ireland, as much part of the UK as England, should not be treated differently. The problem, of course, is that the Government initially said it should be treated differently and that it had secured a winning agreement.

Will the public rally behind Northern Ireland if the Government makes a case that the agreement is having unintended consequences, or will they think Northern Ireland isn’t worth the bother? There’s no question that unionist sentiment has faded in recent times; not because of a surge in English nationalism, but because of a sense that Scotland, particularly, wants to go its own way. The UK doesn’t seem the country it did even 10 years ago. Will English Leavers think the Government should therefore dig in in the way it seems to be planning?

What does all this mean? My sense is that, on current trajectory, the Government’s opponents will not be able to make this an issue the public care about (Covid obviously towers above everything at the moment) in time. The only way this will change is if Conservative Leavers are mobilised en masse – and if perceived historical allies start to question this behaviour too, mostly from the US, but also Canada and Australia. As it stands, it’s mostly been anti-Brexit voices who have made the running on this issue, which, as I note above, makes it look like just another day in BrexitLand.

Daniel Moylan: The decision to spurn York is a rebuff to Leave supporters and to the voters’ verdict – especially outside London

25 Aug

Daniel Moylan is a former Deputy Chairman of Transport for London, former Chairman of the London Legacy Development Corporation and was chief aviation advisor to Boris Johnson as Mayor of London. He has recently been nominated for a Conservative peerage.

A few days spent in York leave one in no doubt what a splendid home it would make for the House of Lords. The Minster more than rivals Westminster Abbey, good quality houses and flats are available within and near the old walled city, and the Grade I Listed Palladian Assembly Rooms, now somewhat incongruously occupied by Ask Italian, would make a most fitting chamber for their Lordships’ deliberations.

So it was a disappointment to hear on my return to London that the body charged with considering future Parliamentary accommodation had ruled out York as an option, even for the period when the Palace of Westminster is evacuated for restoration works.

Apparently, the weighty constitutional issues raised by such a foray into barbarian lands were beyond their remit, and they would require an instruction from Parliament itself to contemplate so reckless a step. But that po-faced message was, of course, accompanied by a silent smirk at the pleasure of giving the Prime Minister a poke in the eye for his temerity in voicing such a provocative and insensitive speculation.

It would be easy to understand this reluctance were we still living in the days before the railways opened, when a stage-coach would have taken several days to convey peers from London to York, exposing their distinguished persons to the indignity of inclement weather, the depredations of highwaymen and the inconvenience of shaken bones.

But it is now possible to make the journey safely and comfortably in two hours – not much more time than many peers spend getting to Westminster – and one arrives in York at a splendid railway station just a short walk from the city centre.

The argument for a move to York, temporarily or permanently, is of course that it would show the people of this country outside the capital that their legislators have heard the message of the 2016 EU referendum and the 2019 general election – the message that the desire for respect and control was to be found amongst voters in all parts of the country, not just in the Great Wen of London. Moving to York might have been a gesture, but gestures matter. Iconography is also a skill of government.

So, if not York, what? What steps does Parliament – and in particular the House of Lords – think are needed to give the electorate the respect they seek and – let’s be frank – to show they have changed after spending three years undemocratically trying to overthrow the people’s vote to leave the European Union?

And this is where that unmistakable smirk comes in. Because what it shows is that, for too many legislators, this question does not arise, and the only game they see is the narrow Westminster to-and-fro in which biffing the Prime Minister for a short-term thrill is the acme of political maturity. It’s as if the messages from the electors, received, however unhappily, every few years, can be ignored in the lengthy intervals.

But those messages have been clear: on three occasion the voters have rejected the wisdom of their legislators: in 2016, marginally, when they voted Leave, in 2017, confusedly, when they rejected Theresa May’s half-baked approach to Brexit, and in 2019, emphatically, when they endorsed Johnson, champion of Vote Leave, to get Brexit done, refusing the deceitful ruse of a second referendum in which a full Brexit would not even have been on the ballot-paper.

And they have not gone away. Despite all the buffeting the Government has taken as it has struggled to face the unprecedented assault of Covid-19, its stock remains impressively high with the electorate. There is no sign that they are transferring their affections to a legislature that continues to laugh up their sleeve at them.

I have no idea if Number Ten will now abandon the suggestion of moving the House of Lords to York. Maybe Johnson will be stirred to take it up with renewed vigour. Or it may be quietly dropped. But a serious and reflective Upper Chamber would be thinking now of the changes needed to continue relevant to the electors. There is little sign of that to date.

Clare Ambrosino: Why One Nation Conservatism can unite the country and win the Millennial vote

21 Aug

Clare Ambrosino is a Communications Consultant and was a Conservative Parliamentary Candidate in last year’s General Election.

It is a common perception that my generation, the Millennials (born between 1981 and 1996), also known as the Peter Pan generation, the Boomerang generation or the Me, Me, Me generation, are principally governed by their desire to live life hedonistically, and place their emphasis on personal pleasure and career rather than buckling down to a life of responsibility.

Certainly, a brief look at the social media profile of anyone born after 1980 (#guilty), will show a lifestyle of holidays, instagrammable rooftop cocktails and a catalogue of material purchases, as well as a penchant for photographing everything ever eaten in a restaurant. This has led many of our parents, who by the age of thirty were already married with kids and a mortgage, to roll their eyes and wonder when we are going to settle down to real life!

However, are Millennials really so privileged or is this apparent golden age of opportunity masking the simple fact that our parents, who received free access to university education and were able to buy a home with generous mortgages (sometimes as much as 100% of the cost of the house) shared fundamental values and a belief in society which we do not have?

After all, what better way to get people to buy into the values of a society if they literally buy a stake in it? Is it any wonder that young people today – the first generation unable to buy a home in decades – seem to want to spend as if there were no tomorrow? Could it be that precisely because the thirty some-things of 2020 are unable to buy their stake, that many have become largely disillusioned with traditional party politics, preferring instead the populist and single-policy movements?

Talking to my peers, it seems that many of them don’t see the relevance of traditional values or traditional politics to their lifestyle, and they prefer to live life in the now. They choose the fast hit of dating apps and fun over responsibility and deferred gratification.

Millennials were largely born into carefully planned, child centred families whose high ambitions, encouraged them to aim high and provided infinitely more affirmation than their parents had received. For decades they have enjoyed the lowest unemployment levels on record, and had access to opportunities and luxuries that previous generations did not have, brought by technological advancements and globalisation.

Yet, all is not as idyllic as it seems. Born into a fast changing and threatening geo-political landscape and with old certainties of growing up in question, younger people have become reluctant to commit to saving and planning for the future in the same the way previous generations did.

The twin towers, the war on terror, the credit recession, austerity, the tensions underlying the EU referendum and now, to cap it all, a deadly pandemic all wrapped up into a new recession and culture wars on the side. The lives of Millennials have been set against a backdrop of fear and anxiety, so that it is of little surprise that many, mercifully not all, have turned inward and do not buy into the values which are the pillars of society. ‘Peter Pans’ of both sexes prefer to burn the candle at both ends. They are cicadas, not ants.

The fact of the matter is however, that many, if not most Millennials would love to plan for the future and raise a family, but this is becoming increasingly difficult. According to recent ONS data, overall marriage rates are at their lowest on record, sinking by 45% since 1972, with the average age of marriage being 35.7 for women and 38 for men. High university debts make it difficult to save for the significant deposits now required by banks, and this has led to increased rents and inflated house prices.

Coming into Covid-19, the last standing pillar of stability for young people – that of employment – is now also at risk. This will naturally lead to an exacerbation of an already existing resentment towards the institutions and powers at play.

Now more than ever, the nation needs to be brought together as a whole and we need to make younger people feel that they have a voice which will be listened to. The fall of the red wall in the North was the proof that if people feel that they are being part of the conversation, they will respond. Too many people have felt excluded and unheard – excluded from the decisions of Westminster, excluded from the workforce, excluded from society itself.

The Prime Minister said last week that we can expect to have a “bumpy few months” ahead of us, and we have a “long way to go” until the UK sees a return to “economic vitality and health”. However, one of Britain’s greatest strengths is that its people pull together in a crisis.

The Covid-19 pandemic, whilst causing one of the biggest recessions in our economy, may become an opportunity to reset the way we live and work – the Great Reset, as it was called by the World Economic Forum. The UK should use this time to focus on its strengths as one of the world leaders in the AI and tech sectors, to generate new jobs for the young, retraining existing workers and pushing forward with the Fourth Industrial Revolution.

The UK should also pivot on the rising trend of working from home to encourage people to move out of the city and invest in rural and coastal towns, where homes are more affordable and new investment is much needed for the survival of their economies. What the government can do to encourage this, is to ensure there are favourable conditions for these opportunities to thrive, such as cutting edge broadband connectivity across our rural areas. Our education system too can follow the job demand, so that the community, education institutions and job opportunities are more closely interlinked.

It is always worth looking at the Democrats to see the future direction of the Labour Party. Esteemed Professor Niall Ferguson, in an article for The Atlantic in May 2019 entitled ‘The Coming Generation War’, correctly identified that the Democrats would start to use generational divides as a wedge issue for future elections. Certainly, this appears to be the central strategy in the impressive Democratic presidential campaign. Joe Biden has recently told a virtual town hall with young Americans that “young people have got a kick in the teeth”, effectively communicating how he feels younger voters’ pain.

In the UK, the Labour Party, whilst traditionally relying on the votes of younger people, has yet to articulate the generation crisis they find themselves in by offering any real solutions.

As Conservatives, it should be our priority to be bold and become the voice of this generation by providing a new vision to keep unemployment levels down, and keep the promise of a home owning democracy, which has served previous generations so well. We should allow young people to buy a stake in society and live by One Nation Conservative values. Now more than ever, young people should be reassured they have a stake in the future and nothing will encourage people to feel included as much as home ownership and stability in the workplace.

Emma Revell: Young people socialising made Sturgeon “want to cry”. If only she got as upset over their debt burden.

4 Aug

Emma Revell is Head of Communications at the IEA

It’s not often some millennials gathering on a beach on a blazing hot weekend is enough to move someone to tears but that was the case for Nicola Sturgeon this week. The Scottish First Minister told a press conference that the crowds of young people gathered, apparently without physical distancing, made her “want to cry”.

I understand the frustration governments might be feeling at people pushing the boundaries of social distancing recommendations but to be driven to tears? Not at the untold damage being wrought on young people’s careers, not for the unfathomable debt they have been saddled with for the rest of their lives and probably those of their children, not for the unsuitable conditions many have been forced to work in for the last five months – those who were lucky enough to have jobs which can be done from home at least. But the simple act of meeting one’s friends outside is enough for a national leader to condemn a generation.

How can this be allowed to stand? The chance of dying from Coronavirus for 15-24 year olds is 0.5 for every 100,00 people. For 25-44 year olds it is 2.9 for every 100,000. So even accounting for a very generous definition of what Nicola Sturgeon meant by young – stretching it to the second category to include myself at a mere 28 years old – the chances of dying from Coronavirus, assuming you did contract the disease, are vanishingly small. The burden of the measures introduced to combat the disease however will fall squarely on the shoulders of the young.

The UK’s debt as a percentage of GDP exceeded 100 per cent for the first time since 1963 in June and that is only likely to increase with unemployment likely to reach record highs.

Whether or not you consider a pivot to homeworking a joy or a disaster is likely to depend on your age. While upper management in their 50s and beyond have enjoyed the chance to skip the commute and take a leisurely lunchtime walk as a break from their kitted-out home office, young people are much more likely to have struggled to share the kitchen table with multiple housemates in private rented accommodation without the luxury of a decade chair, never mind a home office.

New research from the LSE found that young Londoners living in shared accommodation throughout lockdown had just 9.3sqm of private personal space and that 37 per cent of those were sleeping and working in their bedrooms. Nearly half of those surveyed reporting having no suitable place to work at all.

That is those young people who can work from home in the first place. A total of 22 per cent of workers between 22 and 25 in their first full-time job were in low-paying occupations in the hardest hit sectors: retail and hospitality.

For those lucky enough to hang on to work, long-term home working will severely damage the chances of progression and team cohesion in sectors where so much relies on making connections with colleagues and getting to know the rest of the team.

A Zoom pub quiz on a Thursday night organised by a frazzled HR manager will only get you so far. Reduced job opportunities will limit the chances of progression into higher paid positions even further.

And it is not all about money. What about our social lives, or our love lives? If you are in your late 20s like I am, the tick tock of the biological clock begins to edge ever closer. Lockdown has damaged countless relationships, ending many either through enforced separation or proximity. How long are we expected to put our social lives on hold?

Where are our champions? During the EU referendum both sides of the campaign played up the benefits of their side’s victory for young people. Remainers argued that membership of the EU was essential for safeguarding the rights of young people to live and work across the continent, while Leavers wanted the next generation to grow up in full control of the laws of the land. Where are those campaigners now?

It is, of course, the elderly and those with underlying health conditions who are suffering the worst health outcomes from the pandemic. If rumours from Whitehall are to be believed, over 50s are at risk of losing essential liberties if a second wave of the virus hits Britain and of course maybe in middle age have been balancing the twin burdens of childcare and home-schooling with supporting older relatives who have been told to shield themselves.

No generation has escaped Coronavirus’ effect, but the young are uniquely positioned to bare almost no health risk yet will be living with the impact on careers, bank balances, romances, and mental health for the rest of their lives. It is time for politicians to remember that.

Damian Green: Here are our One Nation ideas for reviving post-Covid, post-Brexit Britain

27 Jul

Damian Green is Chair of the One Nation Caucus, a former First Secretary of State and is MP for Ashford.

There has been a flurry of comments about One Nation Conservatism, and what it means in the 2020s, over recent weeks. This is very timely, as for many years the One Nation tradition was linked with pro-European views, to the point where views on Europe seemed to become its defining characteristic.

Those times are clearly past, and one of the aims of the One Nation Caucus of Conservative MPs is to set out a new set of policy priorities, both in domestic and international policy, which we want the Government to adopt. We hope that we are pushing at a reasonably open door, as the Prime Minister has always described himself as a One Nation politician, and certainly his levelling up agenda is absolutely in that tradition. His description of himself as a “Brexity Hezza” may have been rejected by, well…..Hezza, but nothing is easy these days.

Getting the country back on the track it voted for last December is the task for the next four years, and One Nation ideas will play a central role in the successful pursuit of that project. The last thing the Conservative Party or the country needs is a continuation of the Brexit divisions. If the only thing that matters is how you voted in 2016, we will never move on. So through the summer and autumn the One Nation Caucus will be publishing a series of policy papers designed to set out a full agenda for government in the post-Covid period.

The first of these papers is Restarting the Economy, which brings together six MPs from various intakes to address the central issue of our times. Stephen Hammond is the lead author, and he emphasises the importance of a relentless focus on levelling up to extend growth beyond London.

Key proposals in the paper include the development of new local economic bodies to drive growth, expanding the number of planned freeports, and creating technology adoption funds to support the Fourth Industrial Revolution. The report also suggests a number of policies to protect people on low incomes, including suggestions for ending consumer rip-offs, and proposals for managing repayments of Covid business loans, recommending an approach similar to the Student Loan scheme.

Each of these is a meaty idea in its own right, and the full paper is available on the One Nation website. But this array of economic ideas is only the start of the wider project to position Conservative ideas at the heart of the national political debate post-Covid.

Labour may be under new management but one of the features of the Starmer era so far has been the avoidance of any policy discussions. This is clearly a conscious tactic, but while Labour pursues it there is a space to fill in shaping the public mind. It is often observed that intellectual regeneration is more difficult inside a governing party, but it is not impossible, and is absolutely necessary if conservatism is to have another successful decade.

The financial crisis, Brexit, and Covid-19 have been three black swans that have swept aside the original plans developed the last time the Conservative Party was in opposition. They have incidentally also swept aside Tony Blair’s fond idea of making the twenty-first century “the progressive century”, by which he meant the New Labour century. How does that look in 2020?

So now is exactly the right time for One Nation Conservatives to think hard and set up debates. After the economic paper our next publication will be on social mobility, how we can bring it back, and why we must not think about it in traditional terms. Following that we will be publishing a paper on the environment, showing how capitalism is not the enemy of achieving carbon New Zero, but the only way of reaching it.

Future papers will look at Britain’s place in the world, covering trade and aid, and specifically what the new configuration of the Foreign Office and DfId offers in the realm of making our aid spending (which One Nation Conservatives strongly support) more effective in the future. We will also be taking a hard look at schools and what they can do better to spread opportunity, and at the new world of work.

It is very pleasing that all cohorts of the Parliamentary party have contributed to these papers. Former Ministers have worked with many members of the 2019 intake on the individual ideas, proving that there is no shortage of new thinking on the back benches, and that One Nation ideas are alive and well in the rising generations within the party.

Whether or not you think of yourself as a One Nation Conservative, I hope you will welcome the fact that those of us who are in that tradition want to contribute publicly to the key debates that will dominate the coming decade. The public will of course judge the Government mainly on its actions. But every political party needs to demonstrate that it can apply its principles to new circumstances. In a world that changes as fast as this one constant intellectual regeneration should be our goal. The One Nation recovery papers are a contribution to that.

Andrew Gimson’s PMQs sketch: Starmer and Johnson look like inhabitants of different planets

22 Jul

“The Labour Party is under new management,” Sir Keir Starmer declared. He got his message across rather well at PMQs.

In this endeavour, he had a certain amount of help from Boris Johnson, who was intent on attacking the old Labour Party, which was led by Jeremy Corbyn and parroted the Kremlin line.

The party has changed, Starmer retorted, and in any case, he himself never took orders from Corbyn about giving in to Moscow.

Tony Blair used to persuade middle England that he must be sound, by saying things which produced cries of anguish from the Left of the Labour Party.

Starmer is doing something similar: the more he renounces Corbyn, and is denounced by him, the sounder he expects to appear to normal, patriotic voters.

Johnson today tried to avert any impression that Starmer was sound by accusing the Leader of the Opposition of yielding to “pressure from the Islington Remainers who have seized on” the Russia report in an attempt to suggest that Vladimir Putin is “somehow responsible for Brexit”.

The Prime Minister used to live in Islington, where he was not taken seriously until he led Leave to victory in the EU Referendum, whereupon his neighbours paid him the compliment of starting to hate him.

So Johnson knows about the Islington Remainers and sees advantage in getting Starmer regarded as a paid-up member of that group.

Yet the Prime Minister also wishes to persuade us that Starmer keeps changing his views from week to week, even from day to day: “The Leader of the Opposition has more flip flops than Bournemouth beach.”

The Islington Remainers are reluctant to change their minds about anything, so Johnson may in the end have to decide which of these two lines of attack he proposes to maintain.

Starmer, annoyed to be thought inconstant, struck back at Johnson as “the former columnist who wrote two versions of every article”, a reference to the two articles Johnson wrote, for and against EU membership, as he wondered which side to back in the EU Referendum.

As Parliament breaks up for the summer recess, neither contender has established a clear ascendancy over the other. Each is  good at what he does, which is so different to what the other man does that there are times when they look like inhabitants of different planets.

Profile: Chris Grayling, scorned defender of the unglamorous middle class

16 Jul

Chris Grayling is one of the most unjustly denigrated Tories of recent years. The news yesterday afternoon that he had unexpectedly failed to become chairman of the Intelligence and Security Committee, having been defeated by a manoeuvre by Julian Lewis, was greeted, one is sorry to report, not just with gasps of surprise but with howls of laughter in the Commons press gallery.

For it appeared to confirm the received opinion that everything Grayling touches turns to dust. Indeed, even before he failed to get the job, he was the subject of dismissive comment.

Here is Rachel Sylvester, expressing with her usual precision in her column in The Times the reaction of members of the Establishment to his prospective appointment:

“It’s like replacing James Bond with Johnny English. The prime minister’s decision to make Chris Grayling chairman of the powerful Intelligence and Security Committee (ISC) has been greeted with ridicule in parliament and raised eyebrows in Whitehall. This crucial role has always been held by senior figures who are widely respected for their independence, experience and expertise…

“One Tory grandee, who served in cabinet with him, says of the ISC chairmanship: ‘Whatever the reason for manoeuvring Grayling into that position, it’s clearly not to do with ability.’ Another former minister describes him as a ‘perpetual failure’, while a former Conservative strategist reveals that when he worked in No 10 ‘aides regularly scratched their heads about why he was considered worthy of senior cabinet roles’.”

What perfect intellectual snobbery. Grayling is not one of us. He’s a dimwit with whom it would be pointless to have lunch.

His loyalty and assiduity are ignored. The press long ago decided he is one of the guilty men. For while cautious careerists have prospered by keeping their heads down while fulfilling the demands of the powers that be, Grayling rose and then stuck around thanks to his vulgar talent for saying what the public think.

Born in London in 1964, he was brought up in Buckinghamshire and went to the Royal Grammar School in High Wycombe, where he was known to some as Failing Grayling.

At Sidney Sussex College, Cambridge, he read history, joined the Social Democratic Party, and was known to some as the Grey Thing. On leaving, he joined the BBC.

His political persona soon became that of a stalwart defender of the unglamorous middle class. As if to make up for his youthful flirtation with Social Democracy, he always tries, according to one of his colleagues, “to be the most Conservative voice in the room”.

“He’s completely decent,” another ministerial colleague says. “He’s a loyal Conservative who dutifully serves the party while also having strong views of his own.”

Advisers, some of whom refer to him as “the Grey Lord”, are often quite fond of him: there is nothing grand about him. Ministers who have served under him sometimes grind their teeth at the memory of his insistence on micromanaging things in a dogmatic and cackhanded way.

Grayling backed Vote Leave: in itself sufficient reason in some quarters to write him off. But he first rose to notice while the Conservatives were still in opposition.

For although David Cameron and his team had many merits, they realised they were not cutting through to the wider public. They needed an attack dog, someone who could make Labour politicians yelp with pain as he sank his teeth into them.

Grayling was that dog. He had worked for the BBC, so understood the soundbites it required, and he had an ability to express the views of middle England which the clever, classy men round Cameron did not possess.

As George Osborne remarked of Grayling, while watching him on television savaging a senior Labour figure: “I’d hate to have him on my tail.”

Here is Iain Martin, praising him in The Daily Telegraph in December 2008:

“Chris Grayling has proved himself one of the Tories few really effective attack dogs this year. He is expert at obtaining government leaks or rooting around in official stats to find embarrassing evidence of ministerial incompetence, and then broadcasting pithy soundbites in reaction on TV like a young Norman Tebbit.”

Grayling was a rising star. He entered the House as MP for Epsom and Ewell in 2001, joined the Shadow Cabinet and was appointed Shadow Leader of the House by Michael Howard in 2005, and this was followed by appointments by Cameron as Shadow Transport Secretary, Shadow Work and Pensions Secretary and, in early 2009, Shadow Home Secretary.

But in the life of an attack dog, whose jaws must fasten at once on any prey that presents itself, mistakes are liable sometimes to occur. Grayling at the Conservative Party Conference in October 2009 sank his fangs into Sir Richard Dannatt, presumed by him to be one of Gordon Brown’s appointments, but actually one of Cameron’s.

The following March, The Observer published a recording of Grayling telling the Centre for Policy Studies:

“I personally always took the view that, if you look at the case of should a Christian hotel owner have the right to exclude a gay couple from a hotel, I took the view that if it’s a question of somebody who’s doing a B&B in their own home, that individual should have the right to decide who does and who doesn’t come into their own home. If they are running a hotel on the high street, I really don’t think that it is right in this day and age that a gay couple should walk into a hotel and be turned away because they are a gay couple, and I think that is where the dividing line comes.”

To Grayling, this probably sounded like a judicious compromise, but gay rights campaigners were up in arms, to the grave embarrassment of the Cameroons, who had been making every effort to show how liberal the Conservative Party now was.

When Cameron soon afterwards formed his coalition with the Liberal Democrats, and had fewer Cabinet posts to hand out than would have been the case in a majority Conservative government, Grayling was one of those who lost out.

Theresa May became, as Home Secretary, the most senior woman in the administration, and Grayling had to content himself with the post of Minister of State at the Department of Work and Pensions.

He accepted his demotion with good grace, and did valuable work, as seen in this 2011 address by him to the Politeia think tank, on the extraordinarily difficult question of how to make work worthwhile for recipients of welfare benefits.

The progress made in getting people back to work was one of the Coalition’s great successes, and Grayling contributed to it. In 2012 Cameron made him Lord Chancellor and Justice Secretary.

In these roles he attracted very poor reviews. On one occasion he shocked the Lords Select Committee on the Constitution by denying that he had an overriding duty to uphold the independence of the judiciary, even though that is in the Lord Chancellor’s oath.

When asked in an interview with ConHome whether it was a disadvantage to be the first Lord Chancellor for 400 years who was not a lawyer, Grayling made the astonishing observation that on the contrary, it was an advantage, as this meant he was not biased in favour of the legal profession.

His suspicion of lawyers, though widely shared by the public, rendered him unsuitable for the role of Lord Chancellor, which Tony Blair’s barbaric reforms had left in a mutilated state.

Grayling conducted a partial privatisation of the probation service which he was told would be a failure, and which was. Although this was Coalition policy, he took the blame for it, as he did for cuts in legal aid, the introduction of court fees and various other misconceived measures.

George Osborne, as Chancellor of the Exchequer, had inflicted deep cuts on the Justice Department, for which Grayling found himself taking pretty much full responsibility.

In his memoirs, Cameron offers this minimal explanation of why he kept Grayling on after the general election of 2015:

“Chris Grayling seemed a good fit for Leader of the House of Commons (he hadn’t excelled at Justice, but getting rid of him would anger the right).”

Grayling was of value to the Cameroons, because they could point to him as a representative of the right of the party. He was there to lend balance to the Cabinet.

They did not think highly of him, but as one of Grayling’s supporters observes, the Cameroons “did not think highly of any of the Eurosceptics”.

They underestimated his astuteness in internal party matters. He timed to perfection his insistence, to Cameron, in the run-up to the EU Referendum, that ministers must be free to campaign for either side.

And while he was a Leaver, he did not burn his bridges with the Remain camp, and was even regarded within Vote Leave as having remained too close to Remain.

After Leave had won, he quickly fell in behind Theresa May, for whom, many years before, he had run a council campaign in Merton in south London, where Grayling also served as a councillor.

Now he chaired her leadership campaign, and she rewarded him by making him Transport Secretary. Here too he attracted poor reviews. He had signed off a huge, big bang change to the railway timetable which became a fiasco.

And he was mocked for awarding a ferry contract, so medical supplies could still be obtained in the event of a no deal Brexit, to  a ferry company which had no ships.

The decline of the Merchant Navy makes finding ships in a crisis more difficult than it used to be. Peter Oborne is one of the very few journalists who has sought to defend Grayling’s conduct, pointing out that Philip Hammond, as Chancellor, released the necessary funds too late for more satisfactory arrangements to be made.

Once again, Grayling took the blame on behalf of the Treasury. He displays a willingness to put his head above the parapet even when he has been supplied with nothing much in the way of ammunition.

Grayling backed Boris Johnson for the leadership in 2019, but did not join the new Government. A career as an elder statesman beckoned, but was  impeded yesterday afternoon.

Few senior Conservatives in recent times have attracted such scornful, condescending coverage as him. He is often described as “hapless”, the implication being that he cannot help getting this coverage, which is probably true.

For the press needs scapegoats, and Grayling lacks the soft word that turneth away wrath. He has, however, demonstrated prodigious powers of endurance, keeping going through storms of criticism which would have driven many a lesser figure out of politics.

“An experiment that has failed”. Jon Moynihan of Vote Leave’s full submission about the Electoral Commission.

1 Jul

SUMMARY

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.

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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

APPENDIX 1

Avoiding a “Common Plan” Based on advice and discussions with the Electoral Commission

Background

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

APPENDIX 2

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.