Many people are upset about Arron Banks being given a slot on the BBC’s prime weekend politics programme yesterday morning to try and plead his innocence over the airwaves; I will not get into that matter within in the content of this article. Nor can I make any comment on anything Arron Banks has done or has not done, and I will stress now that I am making no presumptions about that here whatsoever. What I do feel able to talk about is imagining that the fevered Remainer hopes about what Banks may have done turn out to be true, and then trying to figure what that would mean, legally. I speak not as a lawyer – I am not one – but as someone who does have reasonably rare insight into this sort of thing, having single-handedly prepared an Electoral Commission return for a national referendum campaign (Yes to AV).
To start with the basics: referendums are governed by PPERA rules (the Political Parties, Elections and Referendums Act 2000), updated slightly in the Electoral Registration and Administration Act 2013, although the 2013 Act had little impact on referendums, being as it was primarily about spending limits for political parties being imposed at local levels. Despite having the word “referendums” in the title, the 2000 Act makes very little distinction between general elections and referendums. There are obvious things, like how an official campaign on each side has to be designated in a referendum, something which would be nonsensical if applied to a GE, but beyond that there is surprisingly little difference in how they are regulated. This is true even when rules which make sense in a GE situation make no sense to a referendum; the best example being that PPERA rules allow political parties to not have to count payroll employees as a campaign cost. The idea is that parties have a core of staff who would carry on working for the party, even if there was no election on; therefore, parties simply need to count additional staff brought in during the regulated period as a campaign cost under their limit, regardless of who actually works on the campaign itself. This makes zero sense in a referendum: everyone you hired would not be working for the campaign organisation if there wasn’t a referendum straight ahead. The organisation wouldn’t even exist. Yet, there you are. I only use this laborious example to show just how little making rules around referendums their own thing within existing legislation has been done.
This becomes highly relevant when you consider that one of the assumptions baked into PPERA, perhaps unconsciously, is that political parties won’t do certain things because there would be political consequences to doing so. That while they might try and bend the rules here and there, there is a limit to what they will do since the potential political risks far outweigh the potential electoral upside. The problem is, this doesn’t apply at all to referendums. The campaigns are ephemeral by definition; they exist to fight one side of a campaign and then disintegrate. You only have to win one referendum, not worry about how something you promised in one election will lose you another if you can’t be seen to follow through, or are seen as corrupt.
Applying this to Banks: again, I stress, I have no idea what Banks has done wrong, morally or legally, if anything. However, let’s say that the £8 million donated to Vote Leave, or a good chunk of it anyhow, came from the Kremlin. Again, I’m not asserting anything here, this is merely hypothetical. Okay, now imagine that Banks used a series of different bank accounts to bounce this money cleverly around, splitting it up across bank accounts, most of it ending up inside of his UK business bank accounts, consolidating the amount needed into his holding company, which then made the donation to Leave.EU. Given PPERA’s lack of robustness on this sort of thing, I think being able to say beyond a shadow of a doubt that the law has been broken would be difficult. Bear in mind, it is not the NCA’s job to decide what should or should not constitute an illegal political donation in the abstract; they merely have to ascertain if the law as it exists has been broken. And again, I have no idea what’s actually happened, but it seems like there is a lot of grey area involved here. The Electoral Commission hummed and hawed about what to do about this for half a year, so there is good reason to make this assumption.
I write this article to warn Remainers about getting their hopes up. My main point is that even if someone had acted against the spirit of the election spending rules yet had cleverly avoided technically breaking the law, I figure it would put the NCA in a very difficult place to actually charge anyone – if the whole thing had been done well and not amateurishly, I stress. Whatever has actually happened in regard to the £8 million Leave.EU received, I therefore remain doubtful any criminal investigation will amount to anything.