By Bob Posner, chief executive of the Electoral Commission
Earlier this week, Marion Little, a senior member of Conservative HQ, was found guilty of intentionally encouraging or assisting an offence during the 2015 general election. The trial focused on election campaigning in the Kent constituency of South Thanet, where the Conservative Party’s Craig Mackinlay stood against UKIP’s Nigel Farage.
Mrs Little, who worked on Mr Mackinlay’s election campaign, was found to have deliberately exceeded the campaign’s spending limit and to have “created dishonest documents to hide what she had done”. In his sentencing remarks, the judge Mr Justice Edis, described Mrs Little’s offence, as a “crime against the public”, which breaches “the trust which the public places in its great political parties”. His comments made clear that these offences were committed deliberately and knowingly and were not honest mistakes resulting from confusion. Serious crimes indeed, and ones which go to the heart of public confidence in our democratic system.
The case – which cleared both Craig Mackinlay MP and his election agent, Nathan Grey, of any wrong doing – was brought by Kent Police and the Crown Prosecution Service. While we at the Electoral Commission did not have a role in the police’s decision to investigate, nor the Crown Prosecution Service’s decision to prosecute these three individuals, we were in full agreement with both decisions.
It is, of course, vital that offences under electoral law are properly investigated and we hope the outcome of this case, and the significant custodial sentence handed down (in this instance suspended for an exceptional, very understandable reason), will deter others from committing such offences at future electoral events. It does of course explain why such a trial was needed and counters the spurious assertion from some quarters that the case was a waste of public money.
In the aftermath of the trial, many have commented on the need for electoral reform to ensure the law is clear and easy to understand. Candidates and agents have important duties. For very much the most part, candidates and their agents understand this, are well-intentioned and meet the standards set out in the current law and as reflected by our guidance documents, guidance commended for its clarity by the judge in this case.
None the less, we agree that electoral reform is needed, and needed urgently. We have been calling for some time for this and other parts of electoral law to be reviewed. Much as we would like to be able to make these changes ourselves, electoral law is, quite rightly, set out by parliament and any changes must be made by the UK’s governments and parliaments.
With limited scope to make changes ourselves, the Commission has spent the last six months addressing the areas which are within our gift to enable parliament to change. We recently consulted on new Codes of Practice to make sure, to the extent we are able to, that there is further clarity and consistency in reporting election spending. The Codes will provide even more clarity for candidates, agents and political parties about what items of spending count towards the spending limit and are to be reported; and about when spending should be in a candidate return and when it should be in a political party return. We are currently evaluating the responses and look forward to the Government putting the Codes before parliament later in spring.
But reform must be further reaching than that. We have called on the government to extend our regulatory role to cover campaign spending by candidates and agents. Currently our remit covers political parties and campaign groups only. This means that when an MP, candidate or political agent is suspected of breaking the law, as in the South Thanet case, the police are the only body which can investigate. Electoral law is complex and prosecutions are rare, indeed the jury in the South Thanet case spent more than 50 hours deliberating the verdicts. Moving responsibility for candidates and agents into the Commission’s remit would free up police and court time and provide for a more proportionate regulatory system that can, where appropriate, apply civil law fines rather than criminal convictions. It would mean investigating police officers were not diverted from their other duties, and were not required to operate in legislation that is far from their day to day role.
This recommendation covers only one important part of electoral law. Yet the rest of electoral law, from rules governing imprints on digital materials to those on handling postal votes, is in need of modernisation. We continue to urge the UK’s governments to implement, in full, the recommendations made by the Law Commission in 2016. Now is the time to take this forward, before our system is further tested at future electoral events, scheduled or otherwise.