DUP Treasurer Gregory Campbell MP. Image, BBC, fair use.

Senior Electoral Commission staff privately expressed ‘concerns’ that the Democratic Unionist Party had broken UK election law, openDemocracy can reveal. At issue was a controverisal £435,000 donation to the party’s 2016 Brexit campaign. But just weeks later the watchdog closed the case without investigating the DUP’s Brexit cash.

The Electoral Commission was watching closely when BBC Northern Ireland’s Spotlight team broadcast Brexit, Dark Money and the DUP in late June. In internal emails, staff at the regulator said that the film raised ‘concerns’ about the source of the DUP’s donation, which came from a shadowy group called the Constitutional Research Council (CRC).

Staff at the watchdog also said that the programme provided "new information" which suggested the DUP had been 'working together' with other Leave campaigns in contravention of electoral law.

But barely a month later, the Electoral Commission announced that it did “not have grounds” to launch a full investigation into the DUP’s Brexit spending. The emails, released to openDemocracy under freedom of information laws, suggest that little attempt was made to examine the allegations aired in the BBC film, with senior staff stressing the need to swiftly “draw a line” under the issue.

Barrister Jolyon Maugham of the Good Law Project said that the Electoral Commission’s decision not to investigate the DUP was “utterly inexplicable from a genuinely independent regulator”. Maugham and Ben Bradshaw MP have annouced that they will seek juduicial review proceedings against the regulator for its 'whitewashed' investigation into the £435,000 DUP donation and its failure to investigate the CRC. openDemocracy first broke the story of the DUP’s Brexit cash back in February 2017.

“Sufficient for us to have concerns”

Political donations in Northern Ireland were secret until last year but parties still had to follow the same rules as the rest of the UK. Spotlight alleged that DUP treasurer Gregory Campbell did not perform due diligence before accepting £435,000 from the CRC. In the programme Campbell told a journalist from the investigative website SourceMaterial: “How would I be or anybody in our party be expected to know who the individuals are that are involved in the organisation?”

The day after the film aired, the Electoral Commission’s head of regulation Louise Edwards wrote to colleagues that Campbell’s comments were “sufficient for us to have concerns” about whether permissibility checks had been carried out on the source of the donation – the biggest in Northern Irish political history.

A separate, handwritten note said “Gregory Campbell did not know who donor was or why it mattered”. The note is labelled “Ann Watt”. She is the head of the Electoral Commission in Northern Ireland and was interviewed by Spotlight.

That same day, in an exchange with Electoral Commission chief executive Claire Bassett, Watt said of the Spotlight film that “the most compelling point they made was on potential joint working. There is new information there.”

A common plan?

The Electoral Commission has previously found Brexit campaigners guilty of breaking the law having earlier decided against launching full investigations. Last year, the regulator reopened an investigation into Darren Grimes after openDemocracy revealed how Vote Leave used loopholes to give the fashion student more than £600,000.

In July, Vote Leave was fined £61,000 after the Electoral Commission found that it had been working together with Grimes's BeLeave campaign, which is prohibited under UK elections law unless it's declared. The commission said they had a clear “common plan” for spending £675,000 with an obscure Canadian data analytics firm called Aggregate IQ.

The DUP spent money with many of the same companies as Vote Leave, including tens of thousands with Aggregate IQ and almost £100,000 on merchandise from the same small company in Cambridgeshire that supplied the Vote Leave campaign.

The Spotlight film found further evidence of potential joint working. The DUP’s contact with Aggregate IQ was Lee Reynolds, director of Vote Leave in Northern Ireland. (Reynolds, who is also a DUP councillor, said he did not direct DUP activities with Aggregate IQ.) An advert in the Metro newspaper taken out in the DUP’s name – at a cost of £282,000 – was actually booked by the Constitutional Research Council’s chair, Richard Cook.

The Electoral Commission has extensive powers of investigation. But the emails suggest that the watchdog chose not to use them to examine the allegations made against the DUP and Cook.

The watchdog's head of regulation did write to Gregory Campbell the day after the Spotlight broadcast, saying that the DUP treasurer was required to ensure that all donations are permissible. “Anyone knowingly or recklessly making a false declaration… commits an offence,” Louise Edwards told the East Londonderry MP.

Campbell replied on 3 July expressing his “disappointment” that the regulator had written to him after a “biased BBC output”. Campbell said his interview had been used “out of context” and “in an attempt to convey an incorrect impression” that he was not familiar with electoral law. The DUP treasurer made no mention of whether or how he had checked the permissibility of the £435,000 donation.

A week later, Edwards wrote to Electoral Commission colleagues saying that she intended to reply to Campbell acknowledging his letter and reminding “him that if he does ever have questions about permissibility or donations more widely, he can always ask us”. There appears to have been no further communication between the regulator and the DUP treasurer over the source of the Brexit cash.

“Draw a line”

The emails also show that the regulator placed the onus on the BBC to provide it with information. On 27 June, while discussing a media query from the Irish News, an Electoral Commission staffer said that the regulator should tell the press that “we have asked the BBC to provide us with copies of any evidence it holds... This would put the pressure (rightly) on the BBC to provide us, the regulator, with the evidence.”

Senior Electoral Commission staff seemed particularly concerned about the optics of the Spotlight film. The morning after it aired the watchdog’s chief executive Claire Bassett asked her colleague at the Northern Irish Electoral Commission Ann Watt whether the programme was “getting much traction” and complained that the film “did seem to conflate a number of things and in doing so risked adding 2 and 2 together and getting 12!”

openDemocracy has also learned that a senior BBC Northern Ireland journalist did provide the Electoral Commission with a lengthy letter outlining their main claims and how the regulator could independently verify the allegations made in the programme. But it appears that the regulator decided not to investigate even before it received the BBC’s letter.

On 16 July, the day before the BBC’s letter was sent, the Electoral Commission’s head of regulation Louise Edwards wrote to Ann Watt saying that suggesting the Electoral Commission put out a “short statement… to draw a line” under the issue. Edwards suggested that the statement about the DUP could be combined with an announcement that it would not be investigating claims about the Remain campaign that former cabinet minister and prominent Brexiter Priti Patel lodged last December.

“It plays quite nicely with a similar statement we want to make on the complaint Priti Patel made about various remain campaigners, so there’s merit I think in doing the two together,” Edwards wrote.

On 26 July, less than ten days after receiving an extensive letter from the BBC outlining the allegations raised by the Spotlight film, an unnamed Electoral Commission staffer wrote: “I have now reviewed this and agree we should not investigate.” In response, Edwards expressed satisfaction that the issue was “dealt with in a timely way”.

On 2 August, the Electoral Commission announced publicly that it “did not have grounds” to open an investigation into the DUP. On the same day, the regulator also said it would not be examining Priti Patel’s complaints further.

Following the announcement, Gregory Campbell attacked the BBC and Spotlight presenter Jim Fitzpatrick. “Why was the programme fronted by a self‐confessed 'EU Remain' campaigner? The programme included an interview with me which was not authorised by me or provided by me for the programme, was there payment made for the interview?” the DUP treasurer said in a press statement.

Utterly inexplicable

Jolyon Maugham, barrister and director of the Good Law Project, has said that if the Electoral Commission does not open full investigations into the DUP and the Constitutional Research Council (CRC) he will bring a judicial review against the regulator. Last month, the High Court ruled that the Electoral Commission had misunderstood the law surrounding donations to Vote Leave, following a case taken by the Good Law Project.

"This was the biggest known political donation in Northern Irish history. The DUP's own treasurer was caught on tape saying he didn't know who the donor was and didn't think it was his job to check. This is the clearest contravention imaginable of electoral law. Yet the Electoral Commission didn't even bother to investigate. This is utterly inexplicable from a genuinely independent regulator," Maugham told openDemocracy.

SNP MP Martin Docherty-Hughes said: “It will come to many as a shock that given the evidence so far that the regulator has made this inexplicable decision on the DUP donation, and if it has now come to the point that a leading Queens Consul should seek a judicial review on this decision, then our notion of access to free and fair elections are to my mind ill served by the present regulations.”

An Electoral Commission spokesperson said: “In line with our Enforcement Policy, the Commission carried out an assessment into claims made by BBC Northern Ireland Spotlight that the DUP and Vote Leave failed to declare joint working at the EU referendum.

“We concluded that we did not have grounds to open an investigation into the allegations that were made due to insufficient evidence. The decision was made after a thorough review of the programme, information that was provided to us and other sources.

“The Commission continues to be prohibited by legislation from disclosing any information concerning donations to Northern Ireland recipients made prior to 1 July 2017 (section 71 of the Political Parties, Elections and Referendums Act 2000). We continue to urge the UK Government to bring forward legislation that will enable us to publish information on donations from January 2014.”

The CRC remains one of the most opaque groups in British politics. The only person officially connected with the CRC is Richard Cook, a former Scottish Tory vice chair. The only other group to receive money from the CRC is the staunchly pro-Brexit European Research Group. In December 2016, the CRC gave former Brexit minister Steve Baker £6,500 to “fund hospitality for ERG members and their staff” at a pre-Christmas event.

This article was amended on 23 September 2019 to correct the size of the Vote Leave fine and to include the fact that Darren Grimes's fine for breaking electoral law was overturned on appeal in July 2019.