Election expenses – you can’t prosecute someone if they haven’t broken any laws

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May 11, 2017 by Paul Goldsmith


So yesterday the Crown Prosecution Service announced that they would not be prosecuting any Conservative MPs for breach of expenses rules over the 2015 General Election “battle buses”. Having examined files passed to them from 14 police forces, they say that whilst there is evidence of inaccurate spending returns it did not “meet the test” for further action. 

The Conservatives are reservedly cock-a-hoop, some calling the investigation ‘politically motivated’ and calling for the resignation of leaders at the Electoral Commission, whose findings originally raised the alarm. Opposition parties were reservedly incandescent, suggesting that the CPS had just said it was OK for the Tories to have ‘bought the election’ in 2015.  Both sides, frankly need to calm down. The real problem, as often in these cases, is the law, which needs to be updated. 

Here’s how it worked. There are some complicated but strict rules on election spending, in which each constituency has a spending limit for the political parties involved. In each constituency, candidates have election agents, who are legally responsible for the conduct of their campaign. They have to submit expenses at the end of elections to the electoral commission, and agent and candidate are responsible for their accuracy. 

What happened in 2015 is that the Conservatives (and, it must be said, other parties) sent ‘battle buses’ around the country. When they arrived in constituencies, activitists in them would be put up in hotels and then would spend their days campaigning. THAT spending would have helped the candidate in their constituency, but was charged to the central selection campaign. The Conservatives were particularly cavalier with their spending on this, and their reporting of it. They have already paid a fine for it. But the law wasn’t broken.

That is because the law can be got around, or has a loophole. Here it is – and stay with this as it is important to bear in mind that the CPS can’t prosecute someone unless they have genuine reasons to suspect an existing law has been broken. It is an offence to knowingly make a false declaration. But in order to bring charges it has to be proved that those they suspect knew their election returns were innaccurate. 

Conservative Central Office had sent a memo around to all election agents and candidates making it very clear that expenses attached to the battle bus and its activists were to be charged to the national campaign. Once that memo went out, the electoral agents and candidates were honestly claiming battle bus expenses that were incurred in their constituency as not their spending. Had they had to claim it in local spending, they would have exceeeded spending limits, and the constituency election result would have been voided. 

So here is the loophole: the people who are legally responsible for the correct claiming of election expenses are the election agent and the candidate, not Conservative Central Office. Conservative Central Office can’t be prosecuted to inaccurate constituency expense claims. Election agents and candidates could honestly say their inaccurate expense claims were based on Conservative Central Office advice. So no-one has broken the law. 

There are still going to be investigations into what happened in South Thanet. This is where where Nigel Farage lost to a campaign involving Nick Timothy, a leading  Conservative strategist and now Chief of Staff to Theresa May, living in the constituency at the very south east tip of England in a hotel. Timothy’s expenses were charged to the national campaign but what he was doing in Ramsgate is anyone’s guess. The result of that further investigation will be announced apparently before the Election Day.
But it might be worth sparing a thought for the thirty or so Conservative MPs who have lived for well over a year under the threat of prosecution. They relied on election agents, and those agents relied on Conservative Central Office. As I often have to remind people, MPs are human beings with families. This cannot have been a pleasant experience for them. Some of them were on TV last night pointing out that when the battle busses came they weren’t handing out literature with their name or picture on, it was Conservative Party campaigners campaigning for the Central campaign. To be told by Central Office that what happened was legal then find yourself personally under investigation by the police must felt like quite a betrayal. No wonder some of them were visibly upset and angry when journalists were pursuing them for quotes. 

Is this over? Not yet. We need the South Thanet investigation result first, and then the laws need to be looked at and updated. But as the laws stand, it looks like the CPS made the only decision they could. 

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One thought on “Election expenses – you can’t prosecute someone if they haven’t broken any laws

  1. Keith Chapman says:

    Excellent explanation

    Like

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