By sjiong - https://www.flickr.com/photos/sjiong/109817932/, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=6380215
The High Court has ruled today that Vote Leave did break their spending limit and so the law when they gave £625,000 to the young Brexit campaigner Darren Grimes ahead of the European Referendum. However, people have got confused about how this relates to the Electoral Commission’s decision to fine both Vote Leave and Grimes back in July. So I've read the whole ruling to work out what's going on.
It’s important to understand that there are three separate but related issues in play here.
The first is the fact, in itself, that Vote Leave paid £625,000 to Darren Grimes for his BeLeave campaign.
The second is the fact that Vote Leave didn’t actually pay this money to Grimes himself. Rather, all but £1,000 of it was paid on his behalf to AggregateIQ, the online comms firm which ran much of the Brexit campaign.
The third is the question of whether or not the money was paid to Grimes as part of a ‘joint plan’ with Vote Leave.
The short explanation is that the court ruled today on the first two questions. The Electoral Commission ruled back in July on the third.
The case itself followed the publication by openDemocracy and the Ferret of a cache of internal Electoral Commission emails (after Carole Cadwalladr, Buzzfeed and Private Eye had written about the affair). This correspondence – obtained under Freedom of Information legislation by my colleague Jenna Corderoy – showed that the regulator was concerned about Vote Leave’s donations to Grimes but had decided not to launch an investigation. This prompted Jolyon Maugham QC of the Good Law Project to launch a crowdfunder to support a legal challenge to the Electoral Commission in the High Court to review the decision not to probe the Grimes case further.
Once the case was launched, two things happened.
First, the Electoral Commission decided to reopen the issue, and to look, specifically, at my third question above: whether Leave and Grimes had a joint plan. The regulator maintained that the donation from Vote Leave to Grimes shouldn’t be counted as Vote Leave expenditure, unless Grimes and Vote Leave spent the money as part of a ‘joint plan’. If they did, then under election law, that the money should count towards Vote Leave’s expenditure. And that would mean it broke its £7 million spending limit.
In July this year, the Electoral Commission ruled on this matter, concluding that there was “significant evidence of joint working” between the lead campaigner, Vote Leave, and BeLeave. The Commission also found that Grimes had broken a related rule (he’d registered his campaign as himself, rather than under the name “BeLeave”, while the donation went to “BeLeave”). They fined both Vote Leave and Darren Grimes, and referred both to the Met Police.
Second, before that ruling from the Commission, judges heard the first round of the Good Law Project’s argument. They resolved that they wouldn’t look at the question of whether there had been a ‘joint plan’ – which the Electoral Commission was already investigating. This, they said, was a matter of fact, while it was their job as the High Court to rule when there are disagreements about the law. They would, however, rule on whether the donation itself should have been counted as expenditure by Vote Leave, irrespective of whether there was a ‘joint plan’ between Grimes and Vote Leave.
Vote Leave has worked hard to conflate these two seperate question in the last few hours. But ultimately, the court ruling today is a separate matter from the fine and police referral in July.
The ruling today consists of 25 pages of legalistic pondering on what it means for an expense to be incurred, by whom it is conferred, and similar questions. And ultimately, it concludes that the donation should have been counted as expenditure by Vote Leave, because it was a donation for a particular thing, rather than simply a donation for Grimes to use however he pleased. Key to this ruling was the fact that the money was paid by Vote Leave to AggregateIQ, rather than simply paid to the BeLeave account with no strings attached: a fact first revealed here on openDemocracy.
Both the Leave and the Remain campaigns have some legitimate grievance here. If Leave was, as it claims, told by the Electoral Commission that their donation to Grimes was allowed, then they have now been told by the High Court that it was not. However, the breach of the rules for which they were fined earlier this year was a slightly different question: it is absolutely clear in the published Electoral Commission guidelines that spending on “joint campaigns” will all be counted against the lead campaign’s expenditure.
Likewise, if the Commission’s incorrect interpretation of the law effectively allowed the official Leave Campaign to spend more than the official Remain campaign, then Remainers have significant grounds for grievance.
At the centre of all of this sit the Electoral Commission, who do seem to have blundered. There have been some loud calls for a serious shake up there from both sides of this quarrel today, and I have some sympathy for that. I was on a ferry to Belfast when they rang me back last year, and explained to me why they had decided that the donation to Grimes was fine. I spent the rest of the journey baffled: it seemed to me then, and has done ever since, that this had to either be bad law, or a bad interpretation of it.
However, I think it’s important to think a little harder about what’s going on here. As I wrote last week, the Conservatives, with collapsing membership, are relying ever-more on a small pool of large donors, many of whom have offshore connections which merit investigation. Likewise, without party activists, they are likely to rely ever-more on companies like AggregateIQ to get their messages to voters. The Commission is seriously underfunded and struggles to keep on top of the huge workload (this was all unfolding at the same time as the Channel 4 revelations about Conservative election spending in 2015). The oligarchs who wish to control our politics would love nothing more than a de-fanged and degraded Electoral Commission.
The response to this error shouldn’t be to denigrate a regulator our democracy relies upon. Instead, this should be a prompt to give the Commission the cash and power it needs to properly police our politics.