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. 

  1. 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.
  2. 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.
  3. 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 peremptoryespecially 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, BanksThe 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”:

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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:

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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.

 

  1. The above central pointfailure to understand ‘Beyond Reasonable Doubt is only one aspect of the Commission’s comprehensive incompetence and partiality in its review of Vote LeaveAn 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:

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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:

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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’):

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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.

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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:

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