Who regulates the regulators?

Now in power, Vote Leave politicians have forgotten about the Electoral Commission


General elections have taken place in Britain for hundreds of years, but the Electoral Commission has only been going for a few decades. Albeit they have been decades of spectacular growth for its headcount. Created by Tony Blair in 2001 as the regulator we didn’t know we needed to oversee elections, it marked its twenty year anniversary by tweeting: “Since the Political Parties, Elections and Referendums Act 2000 was made law [the legislation that gave birth to the quango] our democracy has become fairer and more transparent”.

But the idea that democracy has become “fairer” since they took up residence in their current large, glass-fronted offices in Old Street is debatable. What the problem was that inventing the Electoral Commission solved was never very clear. If there were serious issues with judge-led electoral law, and cheap and robust returning officer-led electoral administration, they were never set out at the time. However, for many leading Brexiteers the problems the Electoral Commission has created, whether intentionally and malignly, or just through its bedrock incompetence, are clear enough.

In a crowded field of Eurosceptics, Jon Moynihan is perhaps the most enraged by the actions of the Commission

After the 2016 Referendum vote, many Brexiteers who were involved in the official Vote Leave campaign came to suspect that the Electoral Commission wanted to dissuade – or disable – them from getting involved in the possible second referendum that overshadowed much of the last parliament. By this reckoning, leading Vote Leave Brexiteers being tied up in pettifogging legal knots was no mere happy institutional Remainer accident.

This theory is obviously contested by the other side, but the political opinions of the people who made up the body overseeing the referendum are at least known. In 2018 The Sunday Telegraph found that four of the Electoral Commission’s ten commissioners, including the chairman, had made pronouncements on Brexit since the referendum – all of them backing Remain. With the chairman saying that he “regret[ted] the result of the referendum”, and complained about “the panoply of Eurosceptic nonsense about the EU” heard during the campaign. 

Jon Moynihan: Businessman turned political disruptor 

In a crowded field of Eurosceptics, Jon Moynihan is perhaps the most enraged by the actions of the Commission. Giving evidence to an inquiry into the elections regulator by the Public Administration and Constitutional Affairs Committee, the former finance director of Vote Leave,  argued that the Commission “with apparently little legal competence, has been happy to take on, simultaneously, the roles of investigator, police, prosecutor, judge, jury and executioner”, and said there was a “failure to apply correctly (indeed even to understand) the ‘Beyond Reasonable Doubt’ (BRD) standard that the EC is legally required to use”. Adding:

 If not abolished, the Commission’s wings should at a minimum be drastically clipped, and the pool from which its staff and board are drawn should be dramatically expanded. It would be a travesty if the Electoral Commission were allowed to stay in its present form.

Hitting back, the Commission argued that the submissions to the inquiry “reflect a range of views and experiences” and that out of the many submissions made to PACAC, the majority were supportive of their work. But nobody I’ve spoken to who had any serious involvement in the Leave campaign has anything positive to say about them. The hysterical denunciations of the Commission by the Referendum’s losers are likewise a matter of public record, but they’d be a very foolish quango to pretend that ‘both sides criticise us, therefore we must be doing something right’. As Moynihan’s forensically detailed critique shows, a more realistic thing to believe may well be that everyone has solid grounds for damning the Commission.

Alan Halsall, who was initially “delighted” to take on the role of “responsible person” for Vote Leave, a position all the referendum groups in 2016 needed to fill. But looking back on several court cases, he now says nobody “in their right mind” would want the role today. Halsall and several others never expected years of legal action as a result of issues the Electoral Commission threw up (many of which were subsequently demonstrated in court to arise from its inability to invigilate its own rules), and he is one of many who believe that they were only targeted because they won the referendum.

Commentator Darren Grimes was a student at Brighton University when he set up the pro-Brexit BeLeave campaign to target millennials. But after the referendum victory, he too faced several court cases at the hands of the Commission over the claim that he and Vote Leave acted “in concert” in the 2016 referendum. Grimes was later exonerated by the courts and told me: “In my case the regulator was shown to be one out of control; Judge Dight found it was wrong in both fact and law, reversing the burden of proof and relying on the assertion of self-styled ‘whistleblowers’ that were self-contradictory and inconsistent.”

David Banks, who ran the Veterans for Britain campaign was sent an email after the referendum by the Commission who suggested he may have breached the Political Parties, Elections and Referendums Act 2000. When he asked them what rule he had broken they replied that his lawyer could tell him. He told me: “They must have known from the start it was a phishing exercise on their part. They gave no evidence”. The Commission followed up with a message saying that it was up to Banks to prove that that their investigation wasn’t justified. Failure to convince them, they said, would mean passing his case to the National Crime Agency.

It’s an odd state of affairs when a Parliamentary Committee with no power asks the governing party for recommendations

The Commission investigation into Banks failed but they managed to fine him after he listed the wrong month for a donation to his campaign. Banks said: “I wrote it as May but in my roundup form listed the same donation as June. It was obvious it was an error, it was exactly the same donor and the same sum but it was a year and a half before they concluded their investigation into the typo”. He was fined £250 which an enraged Banks paid in pennies deposited onto the floor of the Electoral Commission offices. The Commission followed up with an email saying he was 30p short but that they were happy to let him off.

Many Eurosceptics were expecting a reckoning when Boris Johnson took office. After all, three of the four great offices of state are now held by Vote Leave veterans. In 2018 the now Home Secretary launched a one-woman crusade against the Electoral Commission with a dossier suggesting several ways in which the Remain campaign had broken the rules with impunity. But after finally getting into power the former Vote Leave gang seem to have lost interest. 

Intriguingly, the Conservative Party itself submitted evidence to the PACAC inquiry and suggested the Commission could be abolished. In their written evidence they said that the Commission “provides (often unclear) advice to political campaigners yet wants to prosecute breaches of its own unclear rulebook.” and said either Parliament be given far greater oversight, or that the Electoral Commission itself be scrapped and their work given to Companies House.

CCHQ might not be completely synonymous with No.10 but it’s an odd state of affairs when a Parliamentary Committee with no power asks the governing party for recommendations as if they were a mere stakeholder. A frequent accusation levelled against Conservatives is that they can win elections but are uninterested in capturing the institutions which actually exercise a large amount of state power. Brexiteers allege that the Electoral Commission is one of the many Blair-era creations, like the Supreme Court, which have been acting to thwart popular Conservative and Eurosceptic successes. Even if that’s not true, or not the full story, it’s what many on the right think. The failure of the Tory leadership to address what the right thinks is a problem is always something worth watching, as David Cameron and others before him discovered the hard way. Moynihan’s memorandum may well turn out to be the most important thing said in Westminster this year and which you haven’t heard about before. 

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