Almost two years after the Brexit referendum, the Electoral Commission has finally published the results of one of its three investigations into the conduct of the Leave campaigns. It found Leave.EU, the campaign group co-founded by Arron Banks, breached the legal expenditure limits by at least £77,000 – and said the actual figure may well have been considerably higher.
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Without the forensic reporting of Observer journalist Carole Cadwalladr, which led to the commission launching this investigation, we would in all likelihood have remained ignorant of these matters. But there are serious questions about why it has taken so long for the regulator to deliver an answer on whether Leave.EU broke electoral law. Its investigation into whether the official Vote Leave campaign broke spending limits by channelling more than £600,000 of funding through other organisations continues. In recent months, our coverage has exposed the extent to which contemporary electoral law, with its 19th-century roots, has become outdated and easily manipulated in a way that risks undermining the notion of free and fair elections, the linchpin of any democratic society. Electoral law enshrines two principles. First, elections should approximate a level playing field in terms of resource: parties and candidates must abide by local and national spending limits, while television advertising is banned altogether. Second, candidates must be transparent about their campaign materials and it is illegal to make wilfully untrue or defamatory claims.
Campaigners on either side of the EU debate will have differing opinions on whether any adverse finding on spending calls the result of the referendum into question.
However, Jo Maugham, the barrister behind the Good Law Project, said any illegal spending would undermine the result, adding to concerns about Russian meddling and Brexiters failing to deliver promises they made during the campaign.
The commission can impose a fine of up to £20,000 for individual rule breaches. Any evidence of more serious offences uncovered in the course of the investigation can be referred to the police if warranted.
The system relies heavily on self-regulation, openness and the assumption of good faith. Parties and candidates sign off their own spending returns and the fact that their campaign material is widely available helps in holding them to account for what they use it to say. The Electoral Commission has limited powers of proactive investigation and limited sanctions; it has itself raised concerns that the paltry fines it can impose may be factored in as a “cost of doing business”.
This system has worked well in the past, but the referendum campaign illustrates the extent to which it has come under strain. Self-policing works better in regular elections, where parties have a long-term incentive not to get caught breaking the law, than in one-off referendums with campaign groups with a limited life. Regulating multiple campaign groups, which anyone can set up, is trickier than regulating political parties, but given what’s at stake, no less important. Their spending and activities in the European referendum should have been monitored by the regulator in real time, rather than after the fact.
But the problem goes beyond the way electoral law is enforced: it is that modern campaigning techniques render it hopelessly archaic. Social media advertising has become increasingly influential, but while broadcast advertising is tightly regulated, social media communications are only regulated through overall spending limits. But the opaqueness of social media platforms, including the potential to micro-target voters, means it has become easier for parties to get away without declaring spending on advertising that the regulator may never know existed.
Data has become as important an electoral currency as cash, but vast sums can be spent amassing and organising data outside the spending regulatory periods before an election. Currently, parties can declare social media spending under national spending limits, even if it is highly targeted at voters in a specific marginal constituency. These are just some of the many anomalies created by modern technology. This is why the chair of the Electoral Commission recently warned that we could soon find ourselves facing “a perfect storm where the credibility of our electoral processes could be in peril”.
We urgently need an overhaul of electoral law to repurpose it for the digital age, and a regulator with real teeth, including the power to impose substantial fines and to compel platforms such as Facebook to share with it in real time what it is pushing out to voters, and on whose behalf. Without it, there is a risk that public trust in elections will start to erode. If that were to happen, it would put the very legitimacy of our democracy at stake.
