Bob Posner: "The Electoral Commission is on the side of candidates, agents and political parties"
The Electoral Commission has had its work cut out in recent years. And with the Brexit impasse persisting, the regulator could be called into action once more. But is the UK’s electoral law up to the job? Bob Posner, the interim chief executive of the independent body, speaks to Sebastian Whale
The Electoral Commission is one of many institutions that has copped a healthy dose of anti-establishment flak. The regulator has been labelled toothless, biased and most recently in this fair publication, accused of not being fit for purpose.
The Commission, which oversees party and election finance and sets standards for elections and referendums, has had an unrelenting workload. Since 2014 the UK has held two general elections and two referendums. And there is no end in sight; a second vote on EU membership or snap general election remain possibilities, while an extension to the Brexit deadline could mean Britons going to the polls for the European Parliament elections.
Rather than live in a state of perpetual anxiety, Bob Posner, the interim chief executive of the Commission, says the independent body is preparing for all eventualities. “The Commission always has contingency plans for unscheduled electoral events as well as scheduled electoral events,” he adds with a weary laugh.
Posner, who is in his twelfth year at the Commission, took on the post when Claire Bassett quit at the end of 2018 after nearly three years as chief executive. Rather than keep the seat warm for his successor, he’s been given authority from the board to get in amongst it and “drive things forward”. We meet at the Commission’s seventh-floor headquarters in Moorgate, as falling snow flatters to deceive outside.
There are many pressing issues to contend with – the first of which relates to a possible second EU referendum. The Government raised eyebrows when it forecast that holding another vote would take at least a year to facilitate. While parliament would have to legislate for the plebiscite (a process that took seven months ahead of the 2016 vote), the regulated referendum period could last 10 weeks, Posner says. That would include a six-week period in which the official campaigns for each side of the referendum were chosen, followed by four weeks of campaigning. Posner says the Commission would work with MPs to ensure the process was carried out “speedily” and in the “tightest possible timescale”.
“Parliament back in 2000 decided you could do this whole thing with a ten week lead-in period,” Posner says. “I think that’s probably as tight as you’d want it, and we’ve said in a more perfect world you’d want a longer lead-in period than that,” he says, adding that a 10-week time frame is not “unreasonable”.
Though the Commission says it could carry out the process expeditiously, Posner has some words of caution for MPs. Fundamental to the regulator’s wishes are a change and “tidying up” of “outdated” electoral rules. The Law Commission has issued a report full of recommendations, and the Electoral Commission has outlined its proposals, including changes to the 28-day purdah period following the “disquiet” at the 2016 referendum, but as yet nothing has changed.
Specifically, the Commission would like to see rules updated to govern social media campaigning (such as making it transparent for users to see who’s trying to influence them). Posner continues: “We would want to extend investigative powers, we would want some serious sanctions because that gives people confidence. We would want much speedier reporting after the event of all the financial spending. And we’d also want more transparency during the event. We want the ability for us to actually go into campaigns and get hold of their financial information during the event.
“These are all completely normal things in other regulatory fields now. And it would be normal in electoral law world, had parliament had the opportunity just to maintain and update the law. It’s just not happened yet.” The changes could be done for a one-off event such as a referendum, he adds.
Would Posner be worried if a referendum was held without these updates being made? “We would be concerned… because we would want there to be learning from the previous event, which would raise people’s confidence, and it’s difficult to think that it would be sensible for parliament simply to take the rules from the last referendum and paste them across.”
Criticism of the Electoral Commission can often centre around its impotence. The regulator has a £20,000 cap per offence on what it can fine for breaches of electoral rules (it can and has also referred serious cases to the police). Speaking last year, Bassett said the fines were seen by campaigns as the “cost of doing business”. Posner argues “there should be an ability in the really egregious cases for us to fine at a level that matters”.
While he acknowledges it is for MPs to decide on the limit, Posner highlights the Information Commissioner’s Office, whose original cap of £50,000 was increased to £500,000 by parliament before being expanded further to percentages of businesses’ turnover. “So, you’re talking about in the hundreds of thousands of pounds. I think that’s right. I don’t think we as a body would be fining that regularly in any way at all. It would be reserved for the things that really matter and it will be a deterrent,” he argues.
Posner says that while criminal law acts as another “really important deterrent”, you don’t want people facing trial “when you don’t need to”. “If the fines remain too low, and I think they’re too low at the moment, then the result is you’re going to get more cases in front of the criminal courts which is harsh and difficult for people.”
One such case that recently entered the courts was that of Conservative MP Craig Mackinlay. The South Thanet MP was cleared of two counts of knowingly signing false declarations during the 2015 election. However, senior Conservative campaigner Marion Little was found guilty of two counts of intentionally encouraging or assisting an offence under the Serious Crime Act 2007 and handed a suspended sentence.
Writing in The House earlier this month, Mackinlay said the current rules treated all candidates as "potential criminals" – and branded the Electoral Commission “not fit for purpose”.
“I was disappointed that he thinks we’re not fit for purpose, and I think he’s wrong. But I understand he’s been through a very difficult time,” Posner says. “The Commission is very much on the side of candidates and agents and political parties. We don’t want to see people breaking the law. When a court clears someone, we’re delighted. I’m pleased for Mr Mackinlay that the court found he wasn’t criminally culpable.”
Posner says that it is “incontrovertible” there was a “massive amount of spending missing” from Mackinlay’s candidate return – and notes the judgment issued to Little. “Something very wrong happened in South Thanet and it’s good that’s been looked at by the courts, it’s really important it was looked at. So, I’m disappointed that for some reason he thinks somehow the Commission has a culpability there. We’ve offered to meet with him, he’s not taken up that offer yet. I’d love to meet with him and talk him through it,” he adds.
The Commission is also calling for its remit to be expanded from political parties and campaigns to include candidates and agents. “The candidates and agents law still rests with the police. That’s unfair, actually, to candidates and agents,” Posner says. “They’ve got this cliff face where either the police or the Crown Prosecution Service says you shouldn’t have done it and do nothing, or they’re putting these people through to the criminal courts.” Posner says candidates and agents would be fined at a lower level.
Recent high-profile rulings include the Conservative party being fined £70,000 for campaign spending failures during the 2015 election. Vote Leave was fined £61,000 and referred to the police last year after the regulator found “significant evidence” of coordination with another campaign group, BeLeave (the decision was later subject to a High Court ruling which found the commission had misinterpreted spending laws – the Court of Appeal is now reviewing that decision). Arron Banks was referred to the National Crime Agency by the Commission in November to review claims that “a number of criminal offences may have been committed” regarding his £8m in funding to Leave.EU (allegations he denies). The Liberal Democrats, too, were fined £18,000 for breaking spending rules during the referendum campaign. And most recently the Commission fined Labour £12,500 over the party’s failure to deliver accurate and on time declarations about donations.
Posner recognises that the investigations often conclude “long after the event”, which affects public trust. One explanation, he continues, is because existing election law requires financial information to be reported by parties until six months after the event – which he would like to see brought down to three or even two months.
MPs have also been growing sceptical of the Commission, with concerns about the transparency of electoral rules and the risk of facing action if they fail to follow them. Trust in the Commission has also been affected by claims over the regulator’s impartiality. A report in the Telegraph last year claimed that almost half of the independent body’s 10 commissioners had made pro-Remain pronouncements since the referendum.
Posner says on the growing animus: “Of course we’re concerned about that… People having confidence in our independence and impartiality is absolutely vital in our democracy. Regulators are never going to be popular all the time and we understand politics will be politics. But I do think there’s a responsibility on everyone in public life and politics to think about what they say, not to make unsubstantiated allegations, to think about respect for institutions who do a good job across public service be it elected individuals who want respect or the bodies who are in public service.”
He adds: “I don’t think there’s any substance to the Commission being bias in any way at all. When there were particular allegations made about some of our commissioners last year, we immediately appointed an independent person – entirely independent from the Commission – and we told parliament to look into all of that in case there was any substance. That report came back, we published it, and it cleared everyone and there was no evidence of any partiality.
“If there was, be it commissioners or staff, we would be the first to put that right. It would be horrific if it was but there’s no evidence of that.”
Notwithstanding the deluge of public votes and added complications posed by social media, the Commission has also had the spectre of foreign interference in national votes to contend with. Posner says the regulator is working closely with stakeholders such as the security services and national equivalents in America, France and Germany to keep abreast of the “impact on elections or referendums”.
“We’ve not seen hard or serious evidence of direct impact on UK elections, partly because a lot of what we do in the UK is still pencil and paper. In the actual administration, people go into polling stations,” Posner says.
Does that mean pencil and paper is here to stay? “Probably not, because we are in a digital world and the world will move on and move on in a secure way,” he replies. Is that something the Commission would like to see soon? “People engage in the world increasingly in a digital way. We all do that, and elections must keep up with that and must do that and that’s right… But we would not want to move to anything digital or electronic voting until it was absolutely sure to be secure and safe.”
Top of the Commission’s agenda remains making the case for the Government and devolved governments to “bring our election law up to where it needs to be”, Posner concludes.
“It is never convenient to do it, it’s not a political vote winning thing or anything like that. But it is a responsibility of governments and parliaments, from time to time, to look at the democratic system and make sure it’s being properly maintained, and laws are up to date.”