Tuesday, 1 March 2016

New election expenses allegations. Does anyone actually understand the rules?

Did the Conservatives massively overspend in three key by-elections in the run up to the 2015 General Election? Michael Crick has undertaken some detailed investigations for Channel 4 News which claim they did.

And did twenty Conservative MPs (including North Cornwall’s Scott Mann) fail to declare the cost of local campaigning by a national battle bus full of volunteers in their seat? The Daily Mirror suggests they did.

The rules about what should and what should not be declared in election expense returns have never been more unclear. Every so often Parliament or, since its establishment, the Electoral Commission seeks to provide clarity. But every new batch of rules provides an opportunity for parties to seek loopholes and any clarity that was established soon disappears.

At the heart of the current problem is the concept of national versus local campaigning. Each party has a strict limit for local campaign spending based on the number of voters in the seat. The figure is roughly £16,000 and applies for the period of the short campaign - in 2015 this was from 30th March to polling day. (There was a slightly greater figure that could be spent during the ‘long campaign’ - the period from mid December 2014 until Parliament’s dissolution.) Nationally, parties are limited but those limits are sky high, to the extent that not even the Conservatives came that close to breaching them last year. If a party contested all 650 seats then it would have a limit of £19.5 million for the year running up to the general election and £30,000 less for each seat they did not stand a candidate in. So parties will do what they can to push spending onto the national, rather than local, bill.

The situations for by-elections are a bit more complicated. Here the local limit is much higher - £100,000 - and there is no national limit. But a party continues to exist and campaign across the UK between general elections, so there will be spending on campaigning that they will claim is not directly for the seat where the by-election is happening. Clear? Thought not.

So here are some scenarios about what might happen in a campaign - in fact what has happened in many parts of the UK.
  • In the run up to a general election, a party sends lots of letters to voters in a marginal seat. These letters don’t mention the candidates by name, nor do they refer to the constituency or how close it is. No bar charts in these letters! But the letters are only sent to voters in marginal seats and only to those perceived by the party to be swing voters (ie those who may change their mind or whose voting preference has not been identified). These letters count towards national expenditure rather than local. The lack of any reference to the local situation or candidates is the key. All they are doing is urging the elector to vote for Party X, after all.
  • In a by-election, a party sends an email to lots of its members and supporters up and down the country, urging them to come to help. The party promises to help find accommodation with local supporters but asks the members to pay their own travel costs. Traditionally, none of this would appear on the expenses return. There has been no money changing hands - and certainly none of it has come out of party coffers, either locally or nationally.
  • If you think that this is wrong and that the actual costs of every volunteer campaigning for the party should be attributed to the campaign then we enter very complex accounting territory. Do we really want to get to a situation where a party can be put over the limit because a volunteer was so enthused that they travelled the length of the country to help? The extension of this would be that nefarious members of other parties could turn up to deliver leaflets and claim to have flown in specially from New Zealand to help. Surely we do not want to get into this situation - or having to haul in for questioning any party supporter who turns up with a cake they have baked for the volunteers.
  • But what if the party can’t find enough beds for all the members who want to come to help? What if local hotels are pressed into action? If we assume that what I have said above is true, then it depends who pays. If it is the individual member who pays for their accommodation - and they never get any sort of reimbursement - then this would not have to be declared. But if the party or any third person supporting the party paid or made a contribution, then that would have to be included on the expenses return.
  • One of the arguments being put forward by the Conservatives for their spending on hotels in Thanet during the general election was that the staff based there were working on the national campaign, not the constituency seat. So they say the spending did not have to be declared in local returns. Others have pointed out that the Tories had no other target seat for miles around and this seems a little implausible. In which case, based on the current rules and their interpretation, it would be a matter for a judge to decide on.
  • What about battlebuses coming to visit a particular seat. No longer are we talking about members who make their own way at their own expense. Now it is a party organised event (although members might have been asked to make a contribution). Should the net proportionate costs of these be included in local returns?
  • Before you reach an answer on that question, consider another. What about visits by the leader of the party. They arrive in their own battlebus. Only this one is full of aides and journalists rather than campaign volunteers. Traditionally, the Leader is seen as being the embodiment of the national campaign and the costs of their visits - although exclusively to marginal seats - are seen as being wholly attributable to the national spending limit. Only when the leader is campaigning in his or her own seat do things start getting tricky.
  • So if the leader’s battlebus is a national spend, why is the bus full of campaign volunteers any different? And if it is different, where is the line that is crossed? What would happen if the Leader’s battlebus was half filled with journalists and half with members ready to knock on doors? And does it matter what the Leader does when he or she is visiting a marginal seat? Is there a difference between an hour spent visiting a factory and talking about the UK’s balance of payments as opposed to an hour spent knocking on doors and advocating a vote for local candidate Jo Bloggs?
What is, however, clear, is that none of the breaches (or claimed breaches) are going to see any action taken. The deadline for challenges to party expenses is just 28 days after they are published, although, in a fit of opacity, the government’s guidance suggests that a court may be willing to allow extra time in expenses cases. The Electoral Commission is saying that they do not have the powers to properly enforce anything and the Police have traditionally shown a reticence towards getting involved in party politics except for the most egregious breaches. So it would seem that anyone who has done anything wrong in the past will get away with it.

But what about the future? What about the next time there is a highly contested by-election with two parties going at it hammer and tongs? You can be sure that Mr Crick and others will be going over things with a fine-tooth comb. But will those responsible for recording expenses for the parties concerned actually know what the rules are?

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