Written evidence from Jon Moynihan OBE (TEC 30)
Public Administration and Constitutional Affairs Committee
The Work of the Electoral Commission inquiry
THE ELECTORAL COMMISSION IS NOT FIT FOR PURPOSE
Introduction: From 2015 through to the end of the Brexit referendum, I was a board member and at first, chairman of the Campaign Committee, after which, chairman of the Finance Committee, of Vote Leave. Following the referendum, I was, with two other board members, asked to close Vote Leave down in a proper manner. This should have taken a few months, but instead we were engaged, for over three years, in responding to enquiries from the Electoral Commission. This submission to PACAC results from those experiences. It is written in a personal capacity.
- PACAC has invited submissions for its review on the roles and functions of the Electoral Commission (EC), and how well the EC has discharged its responsibilities.
- Presumably PACAC has overarching objectives for the review –to protect democracy, to avoid unnecessary expansion of the Administrative State, say. PACAC should also ask whether the EC should exist at all, whether its existing powers are excessive, in general what the pitfalls are of regulators in society, and whether or not the EC recently fell into some of those pits.
- In its review, PACAC might consider that:
3.1. More Regulation is not an unalloyed good to society and democracy – regulators, given those attracted to such employment, often officiously seek out offences (sometimes concocted), and tend to seek ever-wider powers (as the EC has, astonishingly, sought this year). Regulation can constrain legitimate, democratic activity, aspiration and achievement, as the EC has done over the past four years
3.2. There is danger of monolithic thinking among regulators –in general, officials of the UK’s regulators are drawn from the pool of (often unqualified) civil servants, and their boards mostly from the pool of former public servants --thus excluding some 80% of the electorate. This raises the danger of groupthink. That seems particularly to pertain at the EC
3.3. Having unelected regulators is counter to the traditions of the British justice system – traditional freedoms and the separations of power in our justice system are routinely violated in the UK regulatory world. The EC, with apparently little legal competence, has been happy to take on, simultaneously, the roles of investigator, police, prosecutor, judge, jury and executioner, exercising a far lower bar for its findings than the UK justice system would allow. The Electoral Commission itself reviews itself (or doesn’t) any complaints against itself –there is no Ombudsman. When regulators’ behaviour toward the entities they regulate lacks constraint, they can become arrogant and peremptory –especially if the regulator is, institutionally, ideologically opposed to the aims of the regulated entity –as Vote Leave and others, when dealing with the EC, discovered over the past few years
3.4. UK Regulators tend to have governors and officials who are unqualified in their subject. As the EC has illustrated, regulators can show woeful deficiencies in knowledge and attitudes, not just jurisprudentially but in the specialist area they are supposed to regulate, because their officials are drawn (as in the EC’s case) from the generalist civil service, with little subject-specific knowledge
3.5. Over the past four years, the behaviour of the Electoral Commission has dramatically illustrated these pitfalls. See Moynihan, Halsall, Banks. The Commission’s most central error, as HHJ Dight’s judgement made clear (see extracts below this paragraph), was its failure to apply correctly (indeed even to understand) the ‘Beyond Reasonable Doubt’ (BRD) standard that the EC is legally required to use. Under politically motivated pressure, the Commission (having earlier failed to persuade the High Court that it understood the law on ‘Common Plan’) came up with a theory that Vote Leave had undertaken a ‘Common Plan’ with BeLeave (having earlier twice decided, after two separate investigations, that such was not the case); used bizarre allegations by three publicity-seeking, self-styled “whistle-blowers” as the prime, in essence only, evidence for that claim; ignored (if they ever read) VL’s comprehensive rebuttals of those allegations; failed to apply BRD properly (without offering any argument as to how they had reached the BRD standard --merely asserting that they had). As the extracts below show, HHJ Dight in his judgement stated that the Commission simply failed to comprehend how the BRD standard works; the EC had got it “the wrong way around”:
3.6. In essence, therefore, and astoundingly, in both the Grimes and the Vote Leave matters the EC claimed (and still posts on its web site), as its justification for issuing its Beyond Reasonable Doubt finding: ‘here’s a theory we have; here’s an allegation supporting that theory; we therefore find the theory proved Beyond Reasonable Doubt’. In neither the Grimes nor the Vote Leave case did the EC, as it should have done, take into consideration --or refer to at all-- the plentiful evidence they had been given that spoke against their theory (evidence that clearly put the matter within Reasonable Doubt, so that the EC had the legal obligation to weigh that up before coming to any ‘finding’ – which they did not do), and failed to show how the scant allegations they focused on could possibly amount to a BRD conclusion. Vote Leave pointed out, over and again, that the EC had offered no evidence to support their BRD conclusion on VL:
The EC merely claimed that they were satisfied ‘Beyond Reasonable Doubt’ that a ‘Common Plan’ offence had been committed, based only on evidence from the three self-styled whistleblowers and ignoring all of Vote Leave’s evidence that this was not the case. This is precisely what HHJ Dight condemned the EC for doing in the Grimes case.
The EC having so clearly been shown by HHJ Dight not to have understood what ”Beyond Reasonable Doubt” requires, then clearly its posted finding on Vote Leave should not be allowed to stand.
- The above central point – failure to understand ‘Beyond Reasonable Doubt’ – is only one aspect of the Commission’s comprehensive incompetence and partiality in its review of Vote Leave. An astonishing list of failures can be seen, of which the following list, while lengthy, is only partial. The Commission:
4.1. Instructed their QC to make the false denial, and falsely claimed publicly, that they had given written advice on ‘Common Plan’ to Vote Leave (which advice Vote Leave had followed) prior to the Referendum. An email, from the EC to Vote Leave, was submitted by Vote Leave and accepted by the court as proof that the advice had been given. The EC then – fantastically – instructed its QC to say that the claim that no written advice had been given was because the advice was in an email:
4.2. Applied entirely different criteria, in judging what constituted a Common Plan, when they investigated, and found against, Vote Leave, than when they were invited by Priti Patel to investigate Remain campaigns. In declining to investigate Remain, they said (correctly) that a finding of ‘Common Plan’ required proof of joint expenditure:
For Vote Leave, though, they ignored the need to prove joint expenditure, instead erroneously (albeit ungrammatically) defining ‘Common Plan’ as having been proved in law because Vote Leave had “influence” over BeLeave (‘Influence’, though, is a concept that does not appear in the legislation, certainly not as indicative of two campaigners having a ‘Common Plan’):
4.3. At one and the same time, “found” that Vote Leave had engaged in ‘Common Plan’ expenses with BeLeave, while claiming to the Appeal Court (para 62, third sentence) that the monies in question could not be expenses.
4.4. Were holed below the waterline by the Appeal Court’s finding (para 97) that “a donation to a permitted participant cannot also be an expense incurred by the donor” and (para 94) “Mr Grimes did not make the contracts with AIQ under any agreement with Vote Leave, so that it could be said that he had incurred expenses ‘on behalf of Vote Leave’” – but have refused to retract their finding.
4.5. Misdirected themselves as to what the law said a ‘Common Plan’ consisted of, newly inventing a ‘test’ for that during – not before – their investigations, and again inverting the law to put the onus of proof on Vote Leave, rather than the Commission:
4.6. Based their allegations against Vote Leave on actions that fell specifically within what they had actually encouraged Vote Leave to do:
4.7. In their 4-page letter (plus 8-page annex) to Vote Leave of 10th March 2017 (their ref A054449), gave a ludicrously tight deadline of thirteen days (including weekends) for VL’s unpaid, part-time, post-referendum skeleton staff to respond to that letter, yet fined VL for rendering the required information two and a half hours after the Commission’s 1pm deadline. (There was no evidence that this 2.5-hour delay impeded the EC’s investigation in any way.)
4.8. Wrongly, on a bizarre nit-picking point, persecuted a young campaigner, Darren Grimes (including referring him to the police), whose life was turned upside down for several years as he, eventually successfully, defended himself; likewise persecuting Alan Halsall
4.9. Failed to respond over many months to requests for information and clarification:
The Commission never responded to this.
4.10. Failed to stick to their own rules, initiating three enquiries on the same point, when by their own procedures they were permitted only one – and then pretending that two of the three were not enquiries but ‘assessments’:
See also submission 50 to CSPL, paras 3-9.
4.11 Initiated their third enquiry illegitimately, having received at the time no new information that they could use to justify the reopening of their enquiry:
4.12 Failed to be timely (pursued investigations more than three years after the referendum, something previously unheard of --behaviour that was highly inimical to the democratic process where the polity is supposed to be able to move forward after elections and referendums – as in the current imbroglio in the US Presidential election)
4.13 Failed to interview Vote Leave board or ex-staff, even when both had requested interviews:
4.14 Interviewed (we understand at least twice) the self-styled whistleblowers who were making the allegations, while refusing requests for a meeting from those who were alleged against , thus—incredibly-- refusing to collect or examine evidence that for all they knew refuted (as indeed it did) their “beyond reasonable doubt” finding:
(Note that as the EC had not, for months, informed these staff members, or indeed Vote Leave, that an investigation focusing on the allegations of the so-called whistleblowers was taking place, it was particularly naughty of the Commission to talk to the BBC about ‘months into the investigation’ having passed before the request to meet was made, with its implications that such offers to meet could have been made earlier by Vote Leave staff –they couldn’t have been, since the staff members (and Vote Leave) had had no communication that this was what was happening.)
4.15 Falsely asserted on the Today Programme that Vote Leave had refused to meet with them 
4.16 Were notoriously and publicly partial, both board and officials, for the Remain view; denied to PACAC that this posed a problem; failed to acknowledge, or examine even the possibility, that a virtually monolithic view at the EC (that the vote to Leave the EU was a travesty) likely had a major impact on the way the regulator disgracefully behaved to a series of Leave campaigns
4.17 Aggressively investigated trivial alleged offences by the Leave side, and fined BeLeave and Vote Leave a significant amount on those trivial alleged offences. Did not even respond to Vote Leave’s various arguments as to why these were not offences:
The EC asserted that over-reporting was misreporting. Dight’s judgement proved that Vote Leave was correct in stating that the EC were wrong to say that:
4.18 Flatly refused to investigate clear and considerably worse breaches by the Remain side
4.19 Initiated their investigations against Vote Leave and Grimes as a result of political pressure from aggrieved campaigners (who then boasted at their success in pushing the EC into another investigation)
4.20 Used their unrestricted and unsupervised financial muscle to prevent Vote Leave from bringing its case to Court
4.21 In Court submissions, claimed large and rising numbers for their costs so as to bludgeon Vote Leave into submission:
4.22 Argued in court against Vote Leave being awarded a cost cap (which, had it been awarded, would have allowed us to come to court):
4.23 Wrongly claimed that because the case had been ‘determined’ (by the Commission!), therefore Vote Leave were by definition guilty
4.24 Apologised to Parliament for being wrong about Grimes:
– but did not apologise to Grimes for taking over three years out of his life to defend himself unnecessarily, nor change their report’s allegations against Grimes –allegations which are still published on their website:
Note that for a number of the above points of complaint, Vote Leave were advised that there were no provisions in the legislation for Vote Leave to challenge the EC’s behaviour in its Appeal.
5 The above sorry list surely is enough to show that the EC is not fit for purpose. Quangos and regulators are not necessarily loved by the British public. They always have the potential to make the process less democratic. They get it wrong much of the time, making things worse not better. The principles of the British justice system are violated when a quango is given fining and prosecutorial powers. The British system of Justice has very careful separation of powers between police, prosecution service, and the courts, but not the EC. There is a reason we don’t (traditionally) do justice that way in this country. Why is the EC allowed the powers it has, let alone giving it greater powers as it asks? (And why has there never been an Ombudsman or other independent invigilator of the EC?)
6 Thanks to the Electoral Commission’s behaviour over the past four years, British democracy faces a future crisis, because in any future referendum it’s difficult to think that any sensible person will be prepared to take on a position of responsibility (as Alan Halsall, Daniel Hodson and myself did for Vote Leave), for the side of the campaign that is against the establishment’s view. The experience of the skeleton Vote Leave board, assailed for four years reputationally, wasting years of their lives unproductively responding to the Commission’s depredations, and having to incur personal expense to the level of hundreds of thousands of pounds defending themselves, eventually overwhelmed by a state-funded inequality of arms, is a stark warning to others not to involve themselves in any similar democratic process. Should the Commission be allowed, ludicrously, to continue as is, let alone be given more powers, why would anyone volunteer for the ‘Responsible Person’, or other board position, on such a campaign? A fair referendum, where arguments from both sides were equally represented, would effectively be ruled out.
7 The Committee on Standards in Public Life said in its original 1998 Report, page 148, para 11.6, that prosecutorial and sanctioning powers were not appropriate for the EC: “we ought perhaps to state explicitly that there is one role which we do not envisage the Election Commission playing. . .we do not envisage (it) in any way functioning as, or substituting itself for, the ordinary courts. The Election Commission should not be, or be thought to be, a judicial body.” And yet, the EC were given unilateral fining powers, and now asks to have its powers expanded. What changed people’s minds about giving the EC powers? (Was it because Labour, who were in power at the time, and so drafted the law, was receiving most of its funding and support from Unions, relatively untouched by the EC, while the Conservatives rely on donations and support from individuals, who are directly impacted?) The unilateral fining powers should be withdrawn, and made a matter for the police, the CPS, and the Courts.
8 PACAC has not specifically requested views on the EC’s potential demise but abolition must surely be a possibility that falls within the remit of your enquiry. Correctly or not, over the past four years the EC has been widely seen as the Establishment’s instrument for revenge against Leavers. This entire episode became a stain on Democracy. I (in Moynihan) and others have argued that the EC is unnecessary, and should be abolished. It’s hard to see downside in doing that. Over centuries, other bodies fulfilled those duties perfectly well in elections, and they can do so again. A cloud over British Democracy would be removed, and volunteerism would again be encouraged.
9 If not abolished, the Commission’s wings should at a minimum be drastically clipped, and the pool from which its staff and board are drawn should be dramatically expanded. It would be a travesty if the Electoral Commission were allowed to stay in its present form.
December 2020