Who regulates the regulators?
No case has been made for giving the Electoral Commission more power
The Speaker’s Committee is to look at the Electoral Commission (the EC) and so is the Committee for Standards in Public Life who have announced a review of electoral regulations. This comes after numerous Electoral Commission investigations following the 2016 referendum on the UK’s membership with the EU, and so it seems a good time to question their purpose, our need of them, and their track record.
The greatest problem when looking at regulators like the EC is the starting perception
To many it will be a serious concern that the terms of reference of the Committee for Standards in Public Life review envisage the Electoral Commission being given greater powers and responsibilities, including ‘a role in criminal prosecutions for breaches of election finance laws.’ Recent experience shows that is highly questionable. Indeed, there is a fundamental problem with regulators that is not addressed – if they are the investigators, deciders of wrongdoing and prosecutors, how can anyone expect fair treatment? In short, they are judge jury and hangman, and there is insufficient protection for the wrongly accused faced with an overbearing regulator.
Between 2016 and 2019, we have seen protracted investigations and court proceedings in which the EC was shown to have misunderstood the laws it is overseeing, and that it produced misleading and ambiguous forms and guidance. Strikingly the EC processes were criticised by both judges and the Metropolitan Police in terms of their transparency. You only need look at the way they responded to the accusations against Darren Grimes, Vote Leave and the Britain Stronger in Europe campaign to see different standards, and the impact of third parties and press interest leading to the EC pursuing some and not others.
The greatest problem when looking at regulators like the EC is the starting perception. We are programmed to think that they are there to protect the public and so we should be sympathetic to their needs. Yet in fact we should ask, are they protecting us? What happens to those they investigate? Only when you look at this complex subject from the accused’s viewpoint as well can you judge the regulator seriously, and then understand if they are being the fair and impartial entity we plainly need in a democratic and law-based society. We must first recognise that people are not always virtuous, and regulators are staffed by people, so they too can err. Those who work at regulators are no better or worse than any other person, so their actions will be imperfect. This is not to challenge the concept of regulation – it’s to be realistic about its execution. The problem clearly demonstrated with the EC is that the errors go uncorrected, and the accused can then suffer in a way we spend too little time considering. We maintain a healthy sceptical scrutiny of the actions of other public bodies, it’s odd that so many affect to be so credulous about the EC.
There is also a huge problem with the inequality of arms. The EC have the state behind them, so in effect limitless resources. It is expensive to obtain good advice and defeat a determined regulator who is using its position and public sector pocket to force a concession on a person who may not deserve punishment. Can it ever be right that the well-funded are able to brow beat the accused into submission by force of fiscal arms, instead of proving they are guilty?
To correct these two vices we need the regulators to be truly held to account, thus we need them to be bound by rules of candour and transparency so the accused can see clearly why the regulator is of the view they have done something wrong. The obligation must be to disclose all information gathered good, bad and irrelevant so the accused is able to know what they face. The EC should also be clearly bound by the Police and Criminal Evidence Act (PACE) and should learn from the codes governing police interviews.
It is essential that the regulators are not handed more powers, and the right to bring prosecutions because – as recent examples show – the need to persuade the police or crown prosecution service of the need to prosecute is a key and important check on wasteful prosecutions. It cannot be controversial to say that we need enshrined in the rules the EC operates by an obligation to help the accused know the case against them? The maxim ‘innocent until proven guilty’ applies as much to people who find themselves subject to the EC as it does to anyone else. The fact that the EC investigates and fines is palpably a problem. There is insufficient oversight and review of those fines and the conclusions to justify them.
Cost control also needs consideration: whether it is the provision of legal aid, or limits on recoverable costs, something must be done to ensure the accused can have justice and not be over awed by the regulator spending power. It is perhaps time for a cost capping regime to be introduced, so an accused person knows what their exposure will be to litigating. There are problems too that appeals give a false impression that the bad behaviour can be corrected, because most cannot afford an appeal. Only if we make appeals fairly affordable, or fairly costed, can we say we have a system that is fit for purpose. This is too fundamental a matter to carry on as we have been. Who can have confidence in this system other than those who know nothing about it?
We also need to remember that politics in the UK is an amateur pursuit
We also need to remember that politics in the UK is an amateur pursuit. It needs to remain so because at its heart is democratic engagement. Anyone should be able to decide if they want to try and influence outcomes and participate in our democracy. If you cannot take part without recourse to asking, and paying, lawyers how to do so safely, our democracy will be the poorer (as, of course, will you). So we need to recognise that currently we have what people see as complex and prescriptive regulations covering political parties and third-party/non-party actors, which put people off participation. Overly complicated rules can easily impinge on freedom of speech and association. If the regulations, and regulator that aim to prevent financial corruption of democracy end up deterring ordinary people from getting involved in elections and referendums, or persecuting them when they do, the question must be asked – is the cure worse than the disease?
The evidence of the impact of campaign financing on elections is not as clear cut as people often believe, however, it is arguably the case that some financial limits and transparency requirements are necessary for public confidence in electoral processes. But if the rules and the body that oversees and enforces them are not trusted or capable, that itself is corrosive to free and fair elections and to democratic participation. Another justification for spending limits is to reduce ‘incumbency advantage’ and deepening the pool of candidates and participants – levelling the playing field to encourage diversity and competition. But excessive regulation, unfairly applied and itself overseen by incumbent, interested parties (regulators of course have a strong interest in the persistence and importance of their own bodies and functions) acts as a deterrent to candidates and campaigners who are not wealthy or who are otherwise outsiders from establishment parties or causes. Yet we should not forget most cost control occurs not with the EC but with Returning Officers and the spending return process in elections, so we should ask for what end did we create this unnecessary additional oversight by the EC?
We can see how well the EC have policed campaign finance by considering the Darren Grimes case. Where two leading QCs and an eminent judge spent a week in court (and months leading up to the hearing) picking over the correct interpretation of the Representation of the People Acts, the Political Parties Elections and Referendum Act (PPERA), the Referendum Act 2015 and the definition of an unincorporated associated in common law. In that case the EC were found to have been wrong in fact and law when deciding Grimes had not notified his campaign group BeLeave as a permitted participant in the 2016 referendum, and had therefore submitted an incorrect spending return. In making its determination (after its third investigation of the matter, having found no violation in its first two investigations) the EC had wrongly:
- Relied on an incorrect interpretation of the common law definition of an unincorporated association
- Reversed the burden of proof that it should have applied in its investigation (by requiring Grimes to prove facts rather than itself disproving those facts beyond reasonable doubt)
- Incorrectly interpreted the relevant statutes
- Relied on assertions from certain individuals (self-styled ‘whistleblowers’) that were both self-contradictory and clearly inconsistent with proven facts.
Far from assisting, the EC guidance and forms caused further confusion and it was ultimately found not to have understood or applied the law properly. In this and a succession of other cases it fell to the courts and the police to undertake proper examination of the facts and laws that the commission had been incapable of doing. This entailed huge costs to the taxpayer and to the individuals affected. Perhaps it is time to cut out this perniciously error prone middleman and return oversight of electoral law to the returning officers and the courts?
We also need to consider what manner of society we create when there is no legal aid to defend you against such regulators. You place a burden on the accused of needing the means to fight back and fund lawyers. So at the very least there needs to be more focus on the inequality of arms, and to find ways to cost cap, or control cost recovery to enable people to know they can afford to fight back. It is important here to frame the thinking in terms of the wrongly accused, if the guilty are guilty that will be found, but it is the innocent our system must protect. It is perfectly possible to think someone has broken the law and be wrong, but the innocent can find it too expensive to prove themselves innocent unless we protect them in the way we design the system and control the EC.
A significant problem from the recent past is the ‘ever greening’ re-investigations by the EC in obvious and undeniable response to coordinated, politically motivated third party pressure. Between 2016 and 2018 the EC investigated Vote Leave and Darren Grimes three times each over a common plan, and a fourth undisclosed time in early 2018. This despite the fact that in normal investigations a person can rely on exoneration, and not be re-investigated unless there is fresh evidence to justify it. Here the EC never established any fresh evidence for any of their re-investigations, and failed to be transparent to the accused.
So when our esteemed select committees come to look at the EC, we very much hope that they will first think to hold them to account and scrutinise, and then look to ensure that the innocent are protected, and not give in to the urge of the EC that they be given more powers. The EC has repeatedly shown itself poorly lacking in judgment: to reward them with any increased powers would be far from in the public interest.
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