Opinion: The Electoral Commission’s DUP decision shows again how the rules that should protect our democracy are failing

The UK’s elections watchdog has decided it “does not have grounds to open an investigation” into the DUP’s mysterious £435,000 Brexit donation—once more raising questions about how British democracy is regulated.

openDemocracy investigations
3 August 2018
DUP Election poster © Copyright Rossographer and licensed for reuse under this Creative Commons Licence.

© Copyright Rossographer, Creative Commons Licence.

Here at openDemocracy we have been talking about the Democratic Unionist Party’s mysterious £435,000 Brexit donation for a long time. Since breaking the story in February 2017, we have published dozens of follow-ups. Among them have been serious questions about how much the party knew about who gave them the money andto direct links between the front man for the donation and Saudi intelligence services.

Then, in June, BBC Northern Ireland’s Spotlight team broadcast an hour-long investigation. Would the Electoral Commission, finally, investigate the DUP’s Brexit donation? This week we found out that it will not—but quite why is still unclear.

There are already serious questions hanging over how our democracy is regulated. The Electoral Commission found that a number of Leave campaigns, including Vote Leave and Arron Banks’s Leave.EU, broke the law, issuing record fines. But the response from politicians has been muted and the financial penalties are tiny compared to the stakes involved.

Some of the same campaigners have openly mocked the laws intended to protect our democracy: this week, Veterans for Britain organiser David Banks filmed a YouTube video of himself paying his £250 electoral fine dumping it in loose change on their floor, while Banks filmed himself taking a lie detector test to ‘prove’ he had no unsavoury Russian connections. Now comes the news that the largest donation in Northern Irish history will remain shrouded in secrecy.

In the Spotlight

Spotlight’s film—based on months of painstaking investigative work by reporter Jim Fitzpatrick and his team—laid out the main questions hanging over the DUP donation: who are the Constitutional Research Council, the group that took advantage of Northern Irish donor secrecy laws to funnel £435,00 to the DUP? Why did the party spend more than a quarter of a million pounds on an advert in the Metro, a newspaper that does not even circulate in Northern Ireland?

But Spotlight also brought new material into the public domain. We already knew that the DUP had spent more than £32,000 on social media with an obscure Canadian data analytics firm called Aggregate IQ. The official UK-wide Leave campaign, Vote Leave, spent around £3m with the same company. But Spotlight revealed that Aggregate IQ’s contact at the DUP was Lee Reynolds, a local councillor seconded to Vote Leave for the campaign.

Under UK electoral law, political parties have to know the ultimate source of any money they receive. openDemocracy had already questioned how much the DUP knew about the Constitutional Research Council. But the BBC broadcast an audio recording of the party’s treasurer, Gregory Campbell, asking, “How would I or anybody in our party be expected to know who the individuals are that are involved in the organisation?”

Spotlight discovered that the DUP Metro ad was booked not by the party itself but by the Constitutional Research Council’s chair, Richard Cook. Meanwhile, cybersecurity expert Chris Vickery told BBC journalists that he had found no evidence of any specific DUP work done by AIQ during the referendum—instead he alleged that the DUP’s spending was lumped in with that of Vote Leave.

As openDemocracy has reported, the DUP bought merchandise from the same Cambridgeshire-based suppliers as Vote Leave and targeted social media ads overwhelmingly at voters in England rather than Northern Ireland. Spotlight also raised the possibility of co-ordination between the different campaigns.

No investigation

So, after Spotlight there were even more questions about the DUP’s Brexit donation. The Electoral Commission, two years on the from the referendum and almost 18 months after our first stories, decided it needed to find out more. The regulator wrote to BBC Northern Ireland. Spotlight replied detailing every significant allegation from their film and its source. Most could have been checked in a matter of hours, if not minutes.

This week the Electoral Commission announced that it will not be investigating the allegations made in Spotlight.

The commission said there was no “significant information” beyond what was in Spotlight’s programme. But Spotlight gave the regulator full details of where its extensive evidence came from, including the names of openDemocracy journalists and our collaborators. We never received a call.

In a statement the watchdog hinted that Northern Irish donor secrecy laws had influenced its decision—but Spotlight’s allegations have little, if anything, to do with donor secrecy. They hinge on co-ordination, a charge that the Electoral Commission recently found Vote Leave guilty of in relation to donations worth more than £600,000 to BeLeave, a micro-campaign run by student Darren Grimes.

BBC News—which seemed reluctant to cover the Spotlight investigation—reported comments from the DUP following the commission decision, saying ‘the BBC employed a man who actively opposed the UK leaving the EU to make this programme’. That the BBC would not seek to defend more robustly its own excellent work on this story is regrettable.

The Electoral Commission decision not to investigate Spotlight’s serious evidence is deeply worrying. Last year, openDemocracy revealed that in internal emails the Electoral Commission found Grimes’s spending was “unusual” but decided not to act. Subsequently the regulator did investigate, and found that Grimes had broken the law, fining him £20,000 last month.

Chocolate fireguard

Bodies such as the Electoral Commission are supposed to act as a fireguard for British democracy. But increasingly it feels like it’s buckling under the heat of the current crisis.

On paper, the UK has the kind of rules and regulations that a democracy needs to function properly. There are laws, independent regulators, oversight committees at Parliament. But time and again over the past year and a half we have found that the regulation process is failing, whether that’s the think tanks with charitable status offering donors access to government or the ministers not recording meetings with lobbyists.

openDemocracy’s founder, Anthony Barnett, has pointed out that Brexit is, in large part, about a new space in the constitutions of modern states: regulation. And it’s increasingly clear that, just as the regulations which are supposed to protect our climate and our financial institutions have clearly failed us, so too has the regulation defending our democracy.

So where does that leave the DUP’s Brexit donation? Due to Northern Ireland’s donor secrecy laws it is nigh on impossible to find out the names behind it. (An official divulging the information risks a prison sentence.)

We will continue to investigate, as I’m sure will our colleagues at Spotlight and elsewhere. But without the prospect of effective rules and regulations with real penalties, the threats to the UK’s democratic processes are likely to grow rather than recede.

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