I’ll start off by saying that I am not hinting at nor openly accusing any campaign or political party of wrongdoing, technically legal or otherwise. I have no idea who has done what and I’m not interested in getting into the whole “yeah, but Vote Leave cheated” debate. I’m only here to tell you what I absolutely know about the integrity of our electoral systems, electoral law in the UK and how relatively easy it is to game the system if you wanted to and had the resources at your disposal to do so.
First of all my credentials: I did the electoral return for the Yes to AV campaign and was the liaison on that venture with the Electoral Commission. I did this job alone, as in, I did the accounts and then the return to the EC myself. Say what you will about that campaign, and there is plenty to say in the negative, there were no irregularities with the return, which given what has happened since, is still worth noting. Having done the electoral return for a large campaign in which millions were spent taught me a lot about electoral law and I have watched subsequent events with interest.
One big problem we have is that there isn’t referendum specific electoral regulation. It’s really just the laws that apply to political parties in local and general elections, extremely crudely adapted to referendums. This creates several problems. One is that with political parties, a certain amount of goodwill can be assumed. If a party makes up a bunch of stuff and then wins, it will have to deliver on the stuff it made up. When it can’t do this, it will be voted out and probably never voted in again. With referendums, however, the threat of succession is completely absent. Referendum campaigns can say whatever they like with no worry about having to deliver; once the referendum is over, win or lose, the campaigns disband.
Political advertising is not covered by advertising standards laws. Again, the reason is that it assumes succession as a force for keeping people on the straight and narrow. But in a time of smaller parties who are looking to grab a share of the vote without ever realistically being in a position to win a general election – but who can influence the bigger parties to do things they want via taking votes away from those parties – this seems outdated and naive.
Yet there are much bigger problems with the system still. Take the situation pointed out by journalists on Twitter this past week involving the Brexit Party taking small donations in other currencies apart from GBP and from places clearly outside of the UK. Again, before I go any further, I have no idea what the Brexit Party is doing in terms of donations, nor am I hinting they have done anything like what I’m about to describe. It is against the law for political parties to accept donations from anyone not on the electoral roll. So, being a UK citizen is not enough; they need to be registered to vote in the UK. Except that any donation under £500 is not considered a donation at all and does not have to even be declared.
Let’s imagine a scenario where this could be gamed in a massive way. This, again, is all theoretical. I have a nascent political party. I also have a guy in Kazakhstan who wants to buy influence in the UK and is willing to give me £5 million to do this through my vessel. Now, I can’t take his £5 million as a lump sum – that would be illegal. Nor, for the record, can Mr Kazakhstan give me a series of £499 cheques – donations are considered in aggregate, meaning if I give a party £300 it’s not a donation, yet if I give them another £300 I have given them a £600 donation that must now conform to all laws surrounding political donations. However, if we can figure out a way for the £5 million to be divided up into under £500 chunks and for all of them to be given to the party by completely different people, then you can accept all of the £5 million, which although it looks like it came from 12,000 different people is all actually, in reality, all from my original Kazakhstani source. If you put that plan into action, everything you have just done would be completely legal under current UK electoral law. Unless you could prove the original source of the money in enough of the cases, which would be relatively straightforward to obscure.
You might say, “Why would anyone go to such a hassle. Wouldn’t it be really time consuming and resource intensive to do what you’ve just suggested?” Yes, it probably would. I don’t really know, since I’ve never actually tried to do it. But I can imagine: you would need at least a little over 10,000 living breathing real people to donate for you, and you would need a lot of other resources to have people managing this process. Let’s say it cost you £500k to pull this off, which seems high but let’s go with it. £500k to electorally launder £5 million is not bad going, when you stop and think about it. You still have £4.5 million to play with.
Again, I am not saying anyone is doing this or anyone has ever done this in the history of UK politics. Perhaps carrying out the scenario above is much more difficult than I’m imagining, from a technical point of view. But doesn’t it feel weird that it’s pretty much completely legal according to current UK electoral law?
People complain that the Electoral Commission isn’t robust enough against unwanted electoral activity. The problem isn’t with the Commission but with current electoral law. It is behind the times and needs updating to take into account the world we now live in, as well as the changing UK political landscape where old conventions cannot be relied upon any longer.