“… Four aspects of this record fine are worth noting, especially in terms of what it means for forthcoming decisions on legal action against more Conservative MPs than makes up Theresa May’s majority in the House of Commons.
In short – it’s bad news for the Conservatives as the Electoral Commission has found repeated evidence of spending missing from constituency expense returns. That’s with the police, who have started interviewing MPs under caution, and the Crown Prosecution Service, which has received files from a dozen police forces now.
1. Conservative Party repeatedly hindered the Electoral Commission
The Conservative Party repeatedly refused to cooperate fully with the Electoral Commission investigation, requiring the Commission to go to court to get access to relevant evidence. Even after that, two further legal notices were issued in response to the party failing to provide information requested. The Electoral Commission also had to issue a legal order against a Conservative Party campaigner who “had chosen not to provide information voluntarily”.
“The Party hindered and caused delay to the investigation”, the Electoral Commission’s report concludes. This is notable different from its conclusions on other parties it has investigated recently, where cooperation was forthcoming and sustained.
2. When parties split costs, they must keep good evidence
It is a normal and legal part of election expenditure to split some costs between different legal areas. For example, a leaflet might both promote a local election candidate and a general election candidate and as a result its costs are split between the two candidate’s different expense limits.
One area where the Electoral Commission found against the Conservative Party was over its splitting of staff costs where staff were located in a constituency at the time of a by-election but were also continuing with their normal party roles as well as helping on the by-election.
“The Party could provide no record of how those proportions were determined for any of the by-elections. It did not have any written record of the formula at all, either generally or in relation to any of the three by-elections,” the Electoral Commission reports.
3. Police investigations into Conservative MPs are continuing
As the Electoral Commission’s report says, “The Commission does not have specific powers to investigate and enforce incomplete candidate returns”. The fines and police referral by the Electoral Commission are all about national record keeping and expense limit compliance, not what MPs and their agents got up to.
4. Electoral Commission’s conclusions worsen the legal risk faced by Conservative MPs
All the accommodation costs for national staff relocated to constituencies during three Parliamentary by-elections which the Electoral Commission investigated should have been included in local constituency returns even if the staff were spending some of their time on non-constituency campaigning.
That’s because otherwise they would have been based in their normal offices without accommodation being paid: “There is no reason the Commission can see as to why only an unspecified proportion of the accommodation costs for staff was included in the invoices to candidates. The Commission is satisfied that the entire accommodation costs, for staff and volunteers, were incurred for the purpose of basing individuals in Newark, Clacton and Rochester and Strood, to facilitate those individuals’ work on the respective by-election campaigns. This money would not have been spent otherwise.”
Moreover, when it comes to the Thanet South general election contest, the Electoral Commission has concluded that some of the expenses put on the party’s national expense return should have been included in the constituency return instead as they were for constituency campaigning: “The Commission is satisfied that a proportion of the costs included in the Party’s campaign spending return associated with the team based in South Thanet did not relate to Party campaign spending and should not have been included in the Party’s spending return. In particular, a proportion of the £15,641 included in the Party’s 2015 UKPGE spending return in relation to the Royal Harbour Hotel constituted candidate campaign expenses and should not have been included in the return.”
Likewise on the Conservative battlebus tour, the Electoral Commission has found that the Conservative Party wrongly claimed that all its costs were national election expenditure because in reality the battlebus operation often promoted constituency candidates and so a proportion of its costs should have counted against their limits.
Because the Electoral Commission doesn’t have direct jurisdiction over constituency returns, the question therefore of under-declaring costs on constituency returns has not been followed up by them in this report. That, however, is a matter for the ongoing police investigations. For example, on the question of the Conservative battlebus, the Electoral Commission concludes: “The Commission has not sought to identify the extent to which any affected candidates may have underreported their campaign spending, which is an RPA [Representation of the People Act] matter and therefore a matter for the police.”
In other words, the Electoral Commission has found a number of issues which directly mean that constituency expense returns were wrong. They haven’t issued fines or taken other action over them as those matters are with the police.”