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As I found out to my cost, the Electoral Commission is unfit for purpose

6 min read

After being cleared of election expenses fraud, Conservative MP Craig Mackinlay asks whether current campaign law, and the Electoral Commission, are fit for purpose

I have not been in the House as much as I might have liked over the past few months. I have been on trial on indictments of knowingly signing false election declarations relating to the General Election of 2015 in South Thanet, whereat I beat the then leader of UKIP, Nigel Farage, in what was the most pored over, unpleasant and media frenzied campaign of the entire 2015 General Election. Few could have missed it.

I was publicly charged with the offences on 2nd June 2016, just six days before the 2017 General Election. I’ll leave readers to make of that decision by the CPS during an election period as they will. I was re-elected on 8th June 2017 by a substantially increased majority and 50.8% of the vote.

I can’t even begin to relate, in words, the indignity of being in the dock, behind glass in Court 7 of Southwark Crown Court between 15th October 2018 until my acquittal of all charges on 9th January 2019. The inevitable press pack attended on a daily basis, and one must wonder how many photos are needed of an MP entering court and then leaving court with his wife as each day merged into one of an ongoing nightmare.

I am understandably angry about the experience: three months of uncertainty, pressure and stress on myself and family. The cost to the public purse in pursuit of a political show trial into the £millions. My experience has not enhanced my view of the criminal justice system. It can never be right for anyone facing charges of any kind to be left in limbo over such long periods. In my case, the event in question took place on 12th June 2015, with official investigations starting in February 2016. My acquittal took place on 9th January, a period of 43 months after the event. Had I been found guilty, the law dictates that I would face a bar on holding public office for five years; I’d have lost my seat in Parliament. As a Chartered Accountant with a conviction for an offence considered to be fraud, doubtless my membership of the ICAEW would likely have been withdrawn. I’d have been out of this job with little prospect of a return to a professional career.

The trial focused on whether spending declared nationally by the party under the Political Parties, Elections and Referendums Act 2000 should have been declared as part of local election expenditure under the Representation of the People Act 1983. I was being held responsible and accountable for expenditure I did not and could never have known about.

In my defence, I asserted my right to take on trust the decisions of others in the party hierarchy that had the appropriate legal experience over such matters to make the right decisions as to where such expenditure should rightfully be accounted for and to advise and offer choices accordingly.

What has been shown is that there exists a huge grey area where these two parts of election law interact on the ground of real election campaigns. My call now is that never again should candidates and agents face the prospect of criminal conviction based upon abstract and confused law.

My greatest annoyance is reserved for the Electoral Commission. It is their responsibility to interpret the law into understandable guidance for candidates and agents and have extra-statutory authority to produce guidance and rules to assist the electoral process. During the trial, the prosecution spent days considering the status of personalised and party generic Correx boards. Conservative Party guidance recommends a 4x potential use. If such plastic posters survive defacement or vandalism that characterises many election campaigns, they could last for many years. The Prosecution and Electoral Commission disputed that view, long held by the party. The Electoral Commission publishes not one word of guidance as to how to account for such boards, how to deal with criminal damage and replacements, relying on the vacuous phrase ‘honest assessment’. To face potential criminal conviction with life-changing consequences on the back of scant guidance cannot be right.

Further days were spent considering the status of national party ‘Battle Buses’.

Just weeks prior to the commencement of the trial, the Electoral Commission launched a new consultation on the Codes of Practice on election spending for candidates and agents, and I quote the words of the Director of Political Finance and Regulation and Legal Counsel at the Commission, Robert Posner: “We hope these Codes will make it easier for you to submit your own or your party’s returns, simplifying the process and removing any blurred lines that there might have been…....In responding to this consultation you’ll help us to further demystify the process and remove any confusion that you or your party may have over the process of campaign reporting.” [emphasis added].

Whilst my trial might have been the visible and exciting part for the media, the real action had already taken place at the Supreme Court on 25th July 2018 [UKSC 2018/0091] as part of a number of pre-trial hearings to get a definitive interpretation of election law. This followed success by my team at the Appeal Court in front of the Lord Chief Justice in March 2018 which confirmed the long-held view of over a hundred years that election expenses can only be so if they have been authorised by the candidate or agent. The Supreme Court ruling, which has to be accepted as the definitive interpretation of the Representation of the People Act 1983, overturned that long-held view confirmed at the Appeal Court. In summary of the Supreme Court ruling, any expenditure that has ‘use’ by the candidate, whether authorised or not, should be declared in a constituency election return.

This is where interpretation of law departs from any concept of the reality of election campaigning. The Supreme Court ruling makes us all potential criminals. It means that a ne’er do well, a wealthy political opponent perhaps, could, for instance, hire an aircraft with a towed banner promoting a candidate. The cost, let’s say £15,000 – the entire short campaign spending limit. Because it has benefit to the candidate, i.e. has ‘use’, even though it was not wanted, nor authorised, will form part of the declarable election expenditure and the budget would be bust. The usual campaign expenditure properly authorised – the leaflets, adboards etc. would have simply blown the budget and be unlawful overspend, the return would be an illegal one, rendering the candidate liable to criminal conviction and the election made void.

Another potential example – a foreign, perhaps a hostile state could run Facebook advertising supporting or denigrating a candidate. The benefit to the candidate would be there, the ‘use’ has occurred. Two problems: would it be possible to extract from Facebook the cost of the unwanted adverts? Secondly, if that impossible task has borne fruit, the election return would have to account for an illegal foreign donation as part of the double entry of expenditure matched with donations. An instant double illegality.

My call is now that all political parties come together to create coherent, understandable law and we need to consider the status of the Electoral Commission which is, in my view unfit for purpose.

Craig Mackinlay is Conservative MP for South Thanet

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