Don’t ask, don’t tell: how a conspiracy of silence will corrupt Britain’s next election
Brexit chaos could trigger a general election at any moment. Whenever it happens, there will be dozens of MPs who get elected illegally. Here’s how.
A British general election in the next few months became more likely yesterday. Knowing that Theresa May was likely to ask for Brexit to be postponed – as she did this morning – the EU’s chief negotiator, Michel Barnier, said that only something as compelling as a second referendum or a general election could justify a delay.
That makes a little-reported trial that concluded in January of critical importance now. Marion Little, an experienced organiser employed directly by the Conservative Party’s central headquarters, was found guilty of breaking electoral law. In a bid to prevent UKIP leader Nigel Farage winning in South Thanet in 2015, Little deliberately exceeded campaign spending limits and created dishonest documents to hide what she had done during the election. She was given a nine-month suspended sentence and fined £5,000.
Little effectively ran Tory MP Craig Mackinlay’s winning campaign in South Thanet. (Mackinlay himself was cleared of breaking electoral spending laws.) In his sentencing remarks, Mr Justice Edis said laws relating to elections were there “to protect democracy itself”. But in an uncoded warning to those in the Conservative Party above Marion Little who supervised her work, the judge said that there was “a culture of convenient self-deception and lack of clarity as to what was permissible in law and what was not at Conservative Central Headquarters”.
The Conservatives’ declared campaign spending in South Thanet in 2015 came under the £52,000 legal limit for the constituency. But they spent more than double that amount – a further £66,000 – without declaring it, on everything from additional staffing to hotel accommodation and other expenses. Expenditure returns were described in the trial as “woefully incomplete and woefully inaccurate”.
What happened in South Thanet has implications far beyond Kent. Looking ahead to Britain’s next vote, whenever it comes, openDemocracy has investigated how local elections are run, and the rules that are supposed to govern them. We’ve looked at a number of closely contested seats, and examined previous spending returns – including, in great detail, those of one marginal London seat. And we’ve examined the powers and governance of the elections watchdog tasked with protecting our democracy.
All evidence points to just one outcome: the next House of Commons will contain potentially dozens of MPs who, along with the covert cooperation of their election agents, will have broken the law on campaign spending, and are sitting on the green benches illegitimately. Instead of being disqualified for breaking the criminal law, they will making the law.
Clean-up? What clean-up?
That Britain’s electoral laws are in urgent need of reform is no secret. A 2016 report by the Law Commission said that our campaign finance laws were so serpentine that even lawyers found them difficult, and made a series of recommendations to streamline the legislative framework, improve management and tighten oversight. The commission also called for new primary legislation and, crucially, changes to the way campaign expenditure was regulated, calculated and inspected. However there is little appetite in government for such reform. Asked about the progress of reform, a senior Conservative party official – who will have a major say in how the Tories fight the next general election – said simply: “There is none.”
The report is ‘’probably gathering dust in a bottom drawer and largely unread”, a Law Commission official told openDemocracy.
The result is that a ‘don’t ask, don’t tell’ culture of electioneering pervades. And those bypassing the rules are most likely to represent the key marginal seats that determine who forms the government. An insider familiar with how election campaigns are run told openDemocracy that senior party leaders “don’t want to be bothered with the daily dirt and shit-tricks that you need to win in places where you have to win. They’ll leave that to us.”
‘Culture of toleration’
How high up the party supervision chain did knowledge of Marion Little’s activities in South Thanet go? Channel 4 News, whose extensive investigative work broke open the full story and the wider implications of the scandal, was reassured on camera by Andrew Feldman, former Conservative Party co-chair and principal fundraiser, that “everything [in South Thanet] was done properly and in accordance with the law”. That turned out to be far from the truth.
In that 2015 general election, Feldman, along with other senior party operatives such as Stephen Gilbert, the former Tory deputy chairman, and Grant Shapps, another former co-chair of the Conservatives, signed off extensive hotel bills for activists involved in the Tories’ controversial national “battle bus” campaign, RoadTrip 2015. The battle bus targeted key marginal seats, using teams of mainly young Tory activists who flooded into dozens of swing-vote locations on a fleet of logo-emblazoned coaches. The aim was to boost local campaigns. The party picked up all hotel and food expenses. The bills were paid through national campaign funds, with nothing declared in official local spending accounts.
At the same time, Marion Little was parachuted into South Thanet to help defeat UKIP leader Nigel Farage. A proportion of her party salary should have been declared on the official spending return. It wasn’t. Her stays at an expensive local hotel should also have been declared. Mr Justice Edis said there was a belief at Conservative Party Headquarters (CCHQ) that anyone employed by central office was a central expense, and needn’t be included in a candidate’s election expenditure.
So who decides what is listed as a part of ‘national’ campaign spending, and what constitutes the local campaign to elect an MP? The judge said he had heard nothing during the South Thanet trial that suggested those in senior positions above Little had “made any effort” to regulate and distinguish between the two different regimes. Little, the judge said, “was not alone in that she worked in a culture which tolerated some of what she did”.
Straight out of 'Yes Minister'
The Law Commission has called for the independent watchdog that oversees elections, the Electoral Commission, to be given far greater powers and authority to police Britain’s elections. The Electoral Commission has frequently supported this call – and the members of its board will play a critical role in achieving and implementing any positive change.
A new member was appointed to the Electoral Commission’s board last November. His name is Stephen Gilbert. And he should be very familiar with what happened in South Thanet. Because, in 2015, he was political secretary inside David Cameron’s Downing Street charged with fighting a general election.
As the election’s campaign director, it was Gilbert who devised the 40/40 strategy. This focused on holding 40 marginal seats and winning another 40. The priority was early selection of candidates in such seats – South Thanet being one of them – and to install full-time campaign managers, heavily subsidised by Tory CCHQ. This gave central control of what was happening in the seats that would determine the outcome of the coming general election.
The appointment of Gilbert and what it represents has not gone unnoticed. The former shadow minister for the Cabinet Office, Labour MP John Trickett, said: “[Stephen] Gilbert designed the very Tory campaign strategy that led to the breaking of electoral rules in 2015. His appointment to the body responsible for enforcing electoral rules makes a mockery of our democratic system and reeks of yet another establishment stitch-up that will weaken public trust in politics.”
At the time of his appointment to the Electoral Commission board, Gilbert said he had worked in politics for 30 years, respected elected politicians and said the commission had a “vital role in our democracy”. Some of his colleagues were less flattering. Another former Labour MP, now in the House of Lords, told openDemocracy that Gilbert’s appointment was “so straight out of a 'Yes Minister' script that I could see Sir Humphrey trying to smile and explain”.
‘You don’t say, and they never ask’
Nick Timothy was another of the Tory activists who billeted themselves in South Thanet during the 2015 election and whose expenses were not declared in the official local expenditure accounts. At the time, Timothy was a senior aide to then Home Secretary, Theresa May. He would later join May in 10 Downing Street as one of her most trusted advisers. Both he and Fiona Hill were forced to leave Number 10 after May’s disastrous 2017 election campaign.
May was among the long list of Tory bigwigs who visited the Kent seat during the 2015 campaign. A former Westminster aide, who now describes herself as “just a foot-soldier activist”, said “the dirty business of local finances must never cross the path of any senior figures”. She told openDemocracy: “You never bring it up, simple as that. The big beasts come and they wave and they leave, and you don’t say, and they never ask.”
She said the South Thanet verdict against Little would not mean an automatic clean-up of all “tricks”, adding: “At the last two party conferences we heard about a new generation of specialist data campaigners that would help us with ‘targeted’ campaigning. The hint was that social media messaging was still under-used and that this would change. However there were also reassurance that the streets and knocking on doors and face-to-face campaigning, marshalled by centrally funded organisers, was still critical to winning key seats.”
The message? Inside the party itself, current election strategists recognise the ongoing need for activists. According to one think-tank boss with close links to senior party organiser, “Something like a RoadTrip project, something which gets round local expenditure limits, will have to be reinvented. And that will need people in the streets. If not quite business as usual, it will be creatively close.”
Following discussions with sources in the Conservative, Labour and Liberal Democrat parties, openDemocracy examined the official spending returns in one key London marginal in the 2017 election. We examined all the invoices for printed election material collected in the official declaration of the winning candidate. These were then anonymously discussed with print companies in neighbouring areas with similar retail rents for the exact same products, which included leaflets, posters and cards.
Commercial printers, asked to quote for similar material, described a number of invoices as “clearly mates’ rates”. One company said “Sorry, no one does it for that.”
On a selection of specific print orders, the difference between the claimed cost of campaign cards, flyers and leaflets and the comparable market rate for the same material was over £5,000.
Electoral law says that if a supplier discounts a price by 10% or more below what it would normally charge, or if the difference is more than £50, the campaign must record the commercial rate and not the discounted rate in the expenditure return.
If someone had successfully challenged the invoices examined by openDemocracy immediately after the election in question, the difference of £5,000 could have seen the winning candidate kicked out of Parliament and facing criminal sanctions for breaking the legal spending limit – which would constitute electoral fraud. However, with the election now more than a year ago, there can be no formal challenge.
The candidate’s main opponent was asked if they had checked, in detail, the spending returns of the winner. No one had. According to one former agent, “there’s almost an unspoken code about election spending. And the reason you don’t ask is that you don’t trust that your returns will stand up to too much scrutiny.”
Tip of the iceberg
In early 2017, the Electoral Commission levied a record fine of £70,000 against the Conservative Party for undeclared or misdeclared spending totalling just under £250,000. As part of a wider investigation into election spending, the Crown Prosecution Service was believed to be considering charges against 30 other people, including 20 sitting MPs. As many as 16 police forces in England were examining evidence.
If they had pressed ahead with all of these charges, a swathe of by-elections could have ripped into the numbers on the government benches – threatening the slim working parliamentary majority of just 15 (including Sinn Fein abstentions) that Theresa May had inherited from David Cameron.
In the end the CPS, for evidential reasons – and because the time limits to continue with other complex investigations had passed – decided to focus solely on South Thanet. Channel 4 News had also done a lot of the heavy lifting. When Downing Street announced the snap general election of June 2017, it denied there was any connection between the prospect of a swathe of imminent by-elections and the prime minister’s decision to call the vote, something she had consistently denied she would do.
Future elections: "damaging democracy"
In 1946, George Orwell described the English electoral system as “an all but open fraud”. Despite subsequent legislation, our laws are hopelessly opaque, and open to routine and systematic abuse.
One specialist barrister who spoke at length to openDemocracy said it would be “a miracle if electoral laws were not broken again [at the next general election]”. He said: “I’d never take a job as an election agent because, even for me, the law is so byzantine, difficult and impenetrable. What if on the night you found your candidate had overspent? Do you confess, tell the returning officer, and void the whole election? I mean, who does that. Nobody does that.”
Meanwhile, the Law Commission’s 220-page-long 2016 report is gathering dust. A general election has taken place since its publication, and another one could be coming soon. One MP said there was no intentional delay: “We’ve just been too busy with other business [Brexit] to have time for this.” However a government lawyer told openDemocracy: “The Commons finds time for obscure and complex issues. But when it comes to the way they themselves are governed, they are slow, very slow, to act.”
South Thanet and the fear of a Farage victory meant that Marion Little, according to Mr Justice Edis, was “carried away by her conviction” that defeating the UKIP leader was an “overwhelmingly important political objective”. There are few signs that this culture in Conservative head office has changed.
A former Westminster aide said the Tory’s younger more ambitious activists, like those once linked to Conservative Way Forward (CWF), a campaigning Tory pressure group founded by Margaret Thatcher, still operated with a “madrassa mentality” and paid little attention to campaign rules and regulations. “They feel that only winning will get them noticed, and they’ll do anything if that means they get marked down as a future parliamentary candidate. That’s the game and it makes its own rules.”
For one political consultant familiar with the training of election agents, South Thanet was in some respects a one-off, with the limited sanctions delivered by law doing little to deter those willing to take risks to win. However, the fallout has changed attitudes among professional political operators on election spending who believe clarity on the law is overdue. The consultant added: “I’ve heard good people still being told to be creative, when what they’re actually being told is ‘break the law’. But if we don’t have clarity on the regulation of campaign expenditure and we ignore needed reforms. We’re doing the opposite of discouraging corrupt and illegal practices – we’re damaging democracy, and hoping no one will notice.”
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