By Bob Posner, Director of Political Finance and Regulation & Legal Counsel
Recent reports in the media have thrown a spotlight on the Electoral Commission’s investigations into the spending returns submitted by registered campaigners at the EU Referendum. As the regulator of political finance in the UK, it is proper that the decisions we take are open to scrutiny.
To date the Electoral Commission has published details of 34 investigations arising from the EU Referendum where offences have been found. They cover campaigners for both the ‘remain’ and ‘leave’ outcomes. Other investigations are ongoing. Every month, we publish information on closed cases.
When does the Electoral Commission open an investigation?
We have enforcement powers to investigate alleged breaches of the political finance rules as well as breaches we identify proactively, and powers to impose a range of sanctions.
In order to find an offence, we must be satisfied beyond reasonable doubt that an offence has been committed. That requires a high level of evidence and a high bar which must be met.
‘Investigation’ is a word with a specific and formal meaning for us, which sits in the context of a developing chain of stages. It is worth setting that out briefly here.
We first make initial enquiries to identify whether there may have been either an offence or a contravention of the rules; if so, then we will begin the assessment process.
Assessments are a consideration of the issues and evidence to determine whether to investigate. The conclusion of an assessment will not always lead to the opening of an investigation. We will only open an investigation where we consider that it is in the public interest, proportionate and justifies the use of our resources in this way.
We have previously prepared a briefing which provides more details on what each stage of the process entails. This is also illustrated with the following flowchart.
What level can the Commission fine?
Recently, there has also been some attention as to what we are able to fine political parties and campaigners for breaches of the rules.
We are limited to fining a maximum of £20,000 per offence under the law. Some investigations lead to sanctions on multiple offences, resulting in a higher total fine. However, in order to find an offence, we must be satisfied beyond reasonable doubt that an offence has been committed. That requires a high level of evidence and a high bar which must be met. We will only find an offence if we are satisfied we have met that bar.
We want to ensure the size of monetary penalties for breaches of the political finance rules provides a proportionate deterrent. Otherwise it is possible that some parties and campaigners will see our fines as simply a cost of doing business. We therefore consider that it is time for our sanction limit of £20,000 to be substantially increased, in line with that being applied by comparable regulators.
In some recent cases where we have applied our maximum fine, we considered higher fines would have been appropriate had we the ability to levy them. It is essential that the public have confidence elections and referendums are conducted fairly and in accordance with the rules set by Parliament. That is why it is our strong view that the UK Government should increase the Commission’s maximum fines.