A Correspondent has given Owl permission to publish their comments already submitted:
Dear Members of the Committee on Standards in Public Life
Please find enclosed my submission relating to this review. My submission is made as an individual – I was previously a rank-and-file member of a local campaign group of Independent candidates for local government elections, forced to register as a political party which was felt to be disproportionate. I have also made several previous submissions and complaints to the Electoral Commission on local election issues, and found them to be somewhat disinterested in local electoral issues (where there had been allegations of impropriety by the Electoral Registration / Returning Officer, including informal allegations of both electoral fraud and embezzlement – none of which were ever investigated).
Before answering the specific questions raised for this review, I would like to summarise my current view of Democracy and elections as a whole, not just the question of finance.
I) In my opinion, democracy in the UK is currently fundamentally broken, not only because of election financing, but also because of financing in general, and because of an almost absolute failure of politicians to follow the Nolan Principles resulting in an almost complete lack of transparency and accountability in UK politics today. Trust in politics and politicians has never been lower in several centuries, and this trust needs repairing as a matter of urgency. Democracy is also fundamentally broken because the newspaper/media role in democracy, to investigate politics and politicians and to report the facts without fear or favour, is also almost completely lacking – and because when such investigations do happen and identify non-criminal breaches of the Nolan Principles, there is no independent mechanism for those involved to be held to account – politicians get away with it almost every time, and this leads to a view of one law for them and another for us.
II) Another area requiring regulation is lobbying – as this completely distorts politics and results in decisions based on what is best for special interest groups rather than what is best for the electorate. However this is a complex area in its own right and I am not going to consider it in this response.
III) To repair democracy therefore needs a great deal more action than simply tackling election financing, though of course fixing election financing is still a much needed fix. Specifically (excluding election financing which I will explicitly answer later), I believe that the following actions are needed:
a Politicians (and indeed any other individuals or parties subject to the Nolan Principles), any political advertisements (whether made by politicians, parties or anyone else) and the media need to be forced by law to distinguish between fact and opinion – with an independent JUDIDICIAL body able to investigate complaints made of falsehoods stated as fact with guilty parties forced to make a public retraction and pay a significant fine. The media need to be forced by law to be unbiased in the reporting of facts, though clearly stated opinion should not be subject to any constraints other than existing racial / sexual / religious discrimination laws. Politicians, parties and the media should be expected to maintain detailed records of where they got their facts from, with due regard given if they are unable to substantiate their sources. Due to the time-critical nature of facts both in elections and outside elections, the complaints review process needed to be undertaken in a very timely fashion for any cases relating to current or imminent political decisions or for elections. For elections, any fines need to be considered part of election spending, in order to avoid the “better to ask for forgiveness later than permission now” syndrome. (Note: More difficult to regulate, but it should not be legitimate for e.g. the Conservative Party to label itself as an independent Fact Checker on social media as they did during the last election. This is tantamount to a lie and should be subject to the same factual rules as above.)
b The Nolan Principles need to be backed up by additional laws and an independent judicial body that can give a judgement and appropriate punishment for proven breaches. Punishments should be proportional to both the severity of the breach and the seniority of the person, and punishments should include forced loss of office, fines or (for criminal acts) referral to the police / CPS for criminal investigations / charges.
c Election manifestos needs to be made binding – promises made in elections are highly influential, and if politicians can make promises and them break them, or alternatively leave out controversial policies from their manifestos, then they can say whatever they feel the electorate want to hear regardless of whether that is what they intend to do if they gain office. Examples of this are Leave’s Brexit campaign (promising to retain access to the EU Single Market, stay in THE Customs Union (not just any customs union), not have customs border between mainland UK and Northern Ireland, and to spend £350m per week extra on the NHS from what they claimed we had to pay the EU even though this was established as a falsehood at the time), Academy Schools (not mentioned with any significance in several recent Conservative & Union Party manifestos, but subject to a vote to make all schools in England and Wales Academy schools as one of the first votes following the general election) etc. Policies contained in a manifesto or referendum campaign need to be legally binding, with a referendum needed for any major policies not stated in the manifesto during the first two thirds of any administration.
d Non-election politician and party financing needs to be made completely transparent at all times – not only at election time. Donations need to be limited to being made by individuals who are both British Citizens and resident for tax in the UK, and not corporations – and should not be a tax-deductable expense under any circumstances. The size of donations by individuals should also be limited to a multiple of the median income of UK citizens in order to limit the undue influence of very rich individuals.
In order to prevent both actual moral/ethical corruption (even if it is not currently legally corrupt) and any appearance of corruption (as required by the Nolan Principles), it also needs to be made a criminal offense to either give or receive donations, made by any individual who stands to benefit individually from any policy or decision made by the recipient politician/party or any other politician or public body associated with the same party.
IV) Turning to election financing, I would like to make a couple of background observations before answering the specific consultation questions…
A. In democratic elections, candidates need to be able to campaign and win based on policies and not on how deep their election pockets are. In other words, there needs to be a level playing field, without significant financial advantage for established main-stream parties. At the present time, party candidates have a significant advantage over independent candidates because the party candidates benefit from the additional central party advertising funding that independent candidates do not have. This is fundamentally undemocratic.
B. If truthfulness (transparency and accountability) are important normally, they are even more so during elections and (as with advertisements for products and services) election advertisements (of any sort – including social media) particularly need to be factual – it should therefore be a criminal offense for false advertisements during elections and referenda.
V) Now to the specific questions:
1. “What values do you think should underpin the regulation of donations and loans, and campaign expenditure by candidates, political parties and non-party campaigners in the UK, and why? Such values may include, though are not limited to, concepts such as transparency, fairness and accountability.”
a. In the interest of fundamental fairness of elections, election expense allowances should be the same for all candidates regardless of whether they are party or independent candidates. If parties wish to spend money on elections from central offices, this should be funded by candidates donating part of their election expense allowance to the centre.
b. The source of funding for election expenses – and indeed outside elections – need to be fully transparent in order to avoid actual or appearance of favouritism towards donors. Donations need to be limited to individuals (and not special interest groups, businesses etc.) who are both British Citizens and tax-resident in the UK in order to avoid influence by those who do not themselves have a vote, and need to be limited in size either relative to the average income of a UK tax payer or as a small proportion of the total election expense allowance for the candidate – in order to avoid the rich having a disproportionate influence over elections. Donations need to be made to individual politicians rather than a party and recorded and published in real-time – and such donations can then be passed to central party funds by politicians if they wish.
c . As we saw in the Brexit referendum expenses scandal, the current regulation and law relating to expenses is completely toothless. Politicians who oversaw spending and who were found guilty of overspending by the Electoral Commission’s formal investigation have suffered no consequences, and have gone on to greater ministerial offices rather than being held to account. This has brought our election processes and indeed the Electoral Commission into disrepute, and the law needs to be made substantially tougher with criminal records and either personal fines (rather than campaign fines), prison sentences or loss of office as potential punishments depending on the seriousness of the offense.
2. “Does the Electoral Commission have the powers it needs to fulfil its role as a regulator of election finance under PPERA? It would be helpful if responses would consider the Commission’s role in a) monitoring and b) investigating those it regulates.”
a. As we saw in the Brexit Referendum expenses scandal, it is clear that the Electoral Commission does NOT have the powers it needs. It needs to have far greater powers to investigate alleged breaches, and far greater sanctions / punishments when they find people guilty of breaches. Breaches need to be criminal offenses by individuals – not organisations – and guilty verdicts need to create a criminal record and result in significant punishment that will act as a genuine deterrent.
b. During the Brexit Referendum expenses investigation by the Electoral Commission allegations were made of political bias – whilst I do not personally believe that this was the case, we need to be absolutely certain that the investigating body is genuinely independent – but we also need to give them the same protection of “contempt of court” that the judiciary have in order to protect an independent investigatory body from political interference, with investigations of such contempt made and punished by a separate independent organisation (to avoid a reluctance to issue contempt proceedings because of how it would be perceived – which we have seen for example in some of the scurulous allegation made by Paul Dacre and the Daily Mail over senior judges, where they were unable to issue contempt of court proceedings because of how it would have appeared).
3. “What could the Electoral Commission do differently to allow it to perform its role as a regulator of election finance more effectively?”
a. Organisations should only need to register with the Electoral Commission as Political Parties if they intend to accept part of election expense allowances / donations for central expenditure. If candidates / elected officials are independent and do not share funding but wish to register under a common “brand”, they should be free to do so without registering as a political party – this will reduce the bureaucracy associated with such small groups and help with a more level playing field.
b. As we have seen in recent elections and referendums, advertisements are often paid for directly by individuals, businesses and interest groups other than candidates – these should be banned outright. If such individuals want to contribute to the election spending, they need to do so via the donations route. It should be made a criminal offense for political advertisements to be either paid for or received / published by anyone other than a party or candidate during an election or referendum.
c. As we have seen in recent elections and referendums, both paid advertisements and paid-for social-media-trending-posts are often factually misleading (or as most people would call them “lies”). Any paid for advertising or social-media-posts should have a requirement to clearly identify itself as such, and to distinguish between facts and opinion, and it should be an offense for such paid for adverts or posts to be factually inaccurate, with a fast-track process for adjudication of complaints and a range of sanctions from forced retractions, fines against organisations and individuals proportional (and multiples of) the advertising spend, and in the worst most blatant cases, criminal records and even prison sentences. The role of the Electoral Commission should be expanded to include investigating any such paid advertisement / social media posts. It may be necessary to require the platforms used for such adverts / posts to be responsible for ensuring that paid for adverts are labelled as such and for making all reasonable efforts to identify where social-media posts are likely to be from organisations being paid to create them, and to ensure that they are labelled as such as well.
4. “Are there aspects of the Electoral Commission’s role which detract from its function as a regulator of election finance?”
5. “Are there aspects of the rules which affect or detract from effective regulation of election finance?”
6. “What are the Electoral Commission’s strengths and weaknesses as a regulator of election finance?”
It is clear from the Brexit Expenses finance and the examples given in the Consultation document, that the Electoral Commission’s powers to regulate are entirely inadequate.
7. “Are the Electoral Commission’s civil sanctions powers to fine up to £20,000 adequate?”
It is clear from the Brexit Expenses finance and the examples given in the Consultation document, that the Electoral Commissions sanctions are entirely inadequate. A £20,000 fine on an organisation which has overspent by one or more orders of magnitude more than that is clearly utterly inadequate, and will be considered no more than a cost of cheating rather than a deterrent. Responsibility for adhering to the regulations, and accountability for breaking them need to be allocated to individual candidates / politicians (as well as party officials) rather than some nebulous organisation, and guilty verdicts need to result in a criminal record and punishment made against individuals, to include prison sentences in the most blatant cases, and fines and loss of office in less serious cases.
8. “Does the Commission’s civil sanctions regime interact with the police criminal prosecution regime to form an effective and coherent system for deterring and punishing breaches of election finance laws?”
It is clear from the Brexit Expenses finance and the examples given in the Consultation document, that criminal sanctions are also inadequate as well as the civil sanctions of the EC. Without suitably serious sanctions, there is no incentive to stay within the law and every incentive to breach it, with the paltry fine of £20,000 against an organisation seen as a minor overhead of campaigning rather than any sort of punishment – assuming that is that the case ever gets to “court”, as the statistics show that only a tiny proportion are ever prosecuted.
9. “In what circumstances would the regulatory regime be strengthened by the Commission bringing prosecutions before the courts for potential offences under election finance laws?”
I am unclear in my mind whether the EC should be given court prosecution powers or whether prosecution should be brought by a separate body (entirely independent of political interference – which might rule out Police / CPS).
10. “Should the Electoral Commission’s regulatory powers be expanded to include the enforcement of candidate finance laws?”
Yes. See above.