Thursday, 18 May 2017
What is the point of the Electoral Commission?
Which, on the face of it, sounds pretty useful.
However, events in the last few years have shown the EC to be anything but. Indeed, it is completely unfit for purpose in modern political Britain. Admittedly, much if this isn't its own fault, but that of a failure of legislation to catch up with developing reality - but there can be little escaping that what once seemed a good idea is no longer able to fulfil the remit for which it was designed. Even Betamax video recorders were functional once.
If a week in politics is a long time, then 16 years is an eternity. The EC was established in 2001, with perfectly good intentions, under the provisions of the Political Parties, Elections and Referendums Act 2000. The EC's mandate included increasing public participation in democracy and regulating political donations, later extended to include security arrangements for postal voting (2006) and a number of investigatory responsibilities (2009).
The shortcomings of the EC were made obvious following the General Election of 2010. In what was described by The Independent as "one of the most chaotic general elections in recent memory", the inadequacies of a body charged with increasing public participation in the democratic process were revealed, ironically, on the back of high turnout. Unprecedented claims of electoral fraud, voters being turned away from polling stations and a failure to print sufficient ballot forms underlined the need for a review of how the EC worked.
Nothing, however, was done. The next test for the EC came with the Scottish independence referendum. Legally speaking, the referendum was advisory and non-binding - a product of the UK's constitutional position on referenda for which the EC can hardly be blamed. However, as the EC's responsibilities include "working to ensure voters know everything they need to know about the process" questions may reasonably be asked about the lack of guidance from the EC about the legal status of the referendum.
More crucially, what the EC did and didn't do during the referendum campaign spoke volumes about the nature of the organisation. It revised the proposed question from "Do you agree that Scotland should be an independent country?" to "Should Scotland be an independent country?" It produced guidelines on spending limits. It registered the official campaigns. It certified and announced the result. Significantly, it produced a report into the referendum - the most interesting sections of which consisted of proposals on how to run future referenda successfully. Unfortunately, these recommendations are no more than advisory and no action was taken to ensure the EU referendum conformed to these recommendations (most obviously in relation to votes for 16 and 17 year olds, and restrictions on government advertising to promote a particular outcome).
The report also included a recommendation that "for each future referendum...a role in regulating the campaign arguments is inappropriate for the Commission, or any other organisation tasked with regulating the referendum." This is understandable from the EC's perspective, but begs the question: if not the EC, then who should regulate the arguments? And so, when another non-binding advisory referendum was announced on the UK's membership of the EU, it should have been predictable what the campaign would look like. With no real legal framework for legislating the campaigns, the referendum itself having no legal status and the body responsible for referendum responsibilities washing its hands of any duty to keep campaigns honest there was a certain inevitability to what followed.
As in Scotland, the EC was able to agonise over the precise wording of the question and decide which of the various campaigns should be declared "official" but could do nothing to prevent the dishonesty and blatant untruths that came to characterise the political conversation in the lead-up to the referendum. While admittedly the failure to bring the Representation of the People Act up to date is hardly the EC's responsibility, when Nigel Farage is able to use the same kind of inflammatory tactics that cost Phil Woolas his political career questions have to be asked about why law surrounding General Elections doesn't seem to apply to referenda. In terms of ensuring democratic standards were maintained, the EC proved completely ineffective - something made self-evident by the appearance of Vote Leave Campaign Director Dominic Cummings at a meeting of the House of Commons Treasury Committee.
In its own report into the EU referendum, the EC stated: "a robust regulatory regime should aim to promote fairness and transparency, and reduce opportunities for circumventing these fundamental principles; part of this relies on the effective deterrent of proportionate sanctions. Currently, the Commission is only able to levy a maximum fine of £20,000." It recommended increasing this but, like the recommendations made following the independence referendum, it is likely simply to be ignored. Astonishingly, the EC's other recommendations make no reference at all to the dishonesty, such as the £350 million claim, or the xenophobic campaigning of Leave.EU in particular. Essentially, the EC seems happy for campaigners to say what they like with little regard for the truth, so long as leaflets contain an appropriate imprint.
The EC has evolved into what it is largely by historical accident. As already stated, its responsibilities are framed by legislation that is itself unfit for purpose and an unwritten constitution in which referenda have no legal status. However, when we continue to hear a narrow 51.9 - 48.1% margin of support for leaving the EU - expressed through what is, legally speaking, no more than a glorified opinion poll - as an unequivocal statement of the "will of the people" then there is clearly a need for referenda to be more effectively governed. If referenda are here to stay (and, regrettably, it seems they are) then legislation must be updated defining the scope of referenda in the same ways as other mature democracies do. Existing electoral legislation should also be revisited and strengthened. It will also require a body to oversee the governance of both elections and referenda - something the EC seems incapable of doing.
If the EC exists to "support well-run...referendums" then the EU referendum should be counted as yet another failure. It was anything but "well-run". Other than financially, the EC couldn't guarantee any kinds of standards of transparency and accountability during the EU referendum. This may sound like praise for the EC's performance on regulating donations, but it isn't. In fact, the EC's lack of power to enforce the rules should be of concern to everyone.
Take the recent example of the EC's investigation into Conservative Party election expenses in 2015. Thanks largely to Channel 4 News, the EC was made aware of various irregularities. It looked into these and found a great deal of evidence to confirm the party's returns were incomplete. The punishment? A fine of £70,000 - the maximum the EC can impose.
The EC also reported matters to the police - that it was difficult to prove beyond reasonable doubt that people had knowingly acted dishonestly is perhaps unsurprising. But rules were broken - and the financial benefits of doing so (intentionally or otherwise) far exceeded the paltry £70,000 fine. Aside from delivering relatively meaningless slaps on the wrist, what then is the point of the EC? This episode points to a terrifying reality - that rules themselves are meaningless if you are the Conservative Party and have the money to pay the fines. And who can change the rules? Ah yes, the Conservative government. I won't put any money on anything changing anytime soon.
Money talks in British political life as never before. In 1992, a certain tabloid boasted "it was The S*n wot won it". Of course the media still retains huge influence over public opinion-forming, especially Paul Dacre's Daily Mail. But we've seen, with Arron Banks and Tim Martin as two examples, that there's a new power now very much in the foreground - multi-millionaires seeking to buy political results.
Wealthy donors have always been a political reality. But they have largely remained silent, simply bankrolling the political entity they feel best represents their views. All this has changed. This month another multimillionaire, Jeremy Hosking, proudly declared that he's going to use his wealth to pack the House of Commons with as many pro-Brexit MPs as possible. That, in the 21st century, is democracy.
Of course there will be debate about what should and shouldn't be allowed, and some of that is healthy. But the existing system and the funding rules, which find as their embodiment the EC, go beyond merely allowing such democratic injustice. They are complicit in it. The feeble and outdated rules, as well as the organisation that supposedly enforces them, actually enable the advancement of this kind of "anti-democracy".
The Guardian reported yesterday that the rules relating specifically to Northern Ireland - which allow secrecy of donations - were being misused by the DUP to enable what effectively amounts to electoral money laundering. Carole Cadwalladr, writing in the Observer, makes a comprehensive and credible argument that British democracy has been hijacked by US billionaires. She makes the claim that they played a significant part in the EU referendum. The EC are now investigating - something I doubt that Robert Mercer and his friends will fear. There are no penalties to act as a serious deterrent, and whatever the EC concludes it remains powerless to prevent this kind of thing from happening.
The EC has also failed consistently to address corporate interests and the effect they have on democratic outcomes.
Is this what democracy looks like? It shouldn't be, but where is the resistance? Certainly not from the EC, which looks increasingly like yet another body struggling to enforce the spirit of well-intended but outdated legislation while enforcing the letter of such laws in a depressingly ineffective and self-defeating way. It is simply ensuring, to misquote Burns, that we're "bought and sold for right-wing gold". Sic a parcel of rogues, indeed.
Not all of this is the fault of the EC, of course. But we need to ask what kind of democracy we want, and how we want to EC to function. If it is to do more than simply rephrase questions, check for imprints and apply nominal fines for wrongdoing that actually encourage future misdemeanours then it needs empowering and equipping to do so. Currently it serves little discernible purpose, which represents a democratic tragedy.