EU Referendum: Electoral Law

Layla Moran Excerpts

Tuesday 27th March 2018 Commons Chamber

[Tom Brake]

I thank the right hon. Gentleman for that equally helpful intervention. I hope that during this debate Members who heard that evidence will be able to contribute and update the House on what was said there, although I suspect that a lot of that information will have been contained in the papers this weekend, which I am sure many Members have spent hours assessing over the weekend and since.

I want to focus briefly on the Electoral Commission. This is how its website describes its role in relation to referendums:

“Our focus is on voters and on putting their interests first. Our objectives for referendums are that:…they should be well-run and produce results that are accepted…there should be integrity and transparency of campaign funding and expenditure”.

It is safe to say that neither of those objectives was met with respect to the EU referendum campaign—I am not blaming the Electoral Commission but others involved in the campaign.

What action has the Electoral Commission taken to date? The allegations we read about this weekend were new allegations, but there were existing allegations working their way through the system. I thank WhatDoTheyKnow, openDemocracy and FairVote for their work on this issue. They obtained internal emails from the Electoral Commission that described Darren Grimes’ spending as “unusual”. I think we can all agree it was remarkable that someone whose organisation in the first 10 weeks of its existence apparently managed to raise £107 was given £625,000 to spend in a completely uncontrolled manner. It is remarkable that such confidence was placed in that organisation and the one or two people behind it.

[Layla Moran (Oxford West and Abingdon) (LD)]

I spoke to some people in the industry about this, and they told me that unless there was collusion it would have been impossible to mine such big data in the timeframe the money was given to BeLeave. Does my right hon. Friend agree that this is suspicious indeed?

[Tom Brake]

I do not want to comment directly on that, but clearly it is a very serious allegation that I am sure will be a subject of the Electoral Commission and police inquiries. The commission has confirmed that there is a live investigation under way and that therefore it cannot confirm what progress has been made, but it is under way, and I welcome that.

In the internal emails, the Electoral Commission described Grimes’ spending as “unusual” and found that he broke some of its rules, but it decided to take the matter no further as there were “no reasonable grounds” to believe that Vote Leave and Grimes had been working together.

I must say that the Electoral Commission will have to have very clear reasons if it does not believe this to be the case now, following those new allegations from three whistleblowers at the heart of the Vote Leave-BeLeave machine. It is worth underlining that they are new allegations. What we have heard from the supporters of Vote Leave is “All this has been investigated. There is nothing new here”, but these allegations from three whistleblowers at the centre of the organisation are completely new. These are matters that have not been investigated. Anyone who supported Vote Leave and is now saying, “Don’t bother, it has been done” is wrong.

--- Later in debate ---

[Caroline Lucas]

I recognise that the Chair of the Digital, Culture, Media and Sport Committee has been doing some incredibly important work this morning. Notwithstanding that, I still make the case that there is staggering hypocrisy among a large number of MPs who promised to enhance democracy by leaving the EU, but who cannot even be bothered to turn up to talk about the potential radical undermining of our democratic processes. I find that genuinely quite breathtaking.

I start by paying tribute to the dedicated, fearless journalism of Carol Cadwalladr over the past year. She has led us to the extraordinary revelations that we are debating this afternoon.

Much of the discussion so far has been about the validity of the referendum vote itself, but I want to argue that this goes much deeper and wider than that single vote, vastly important though it is. The revelations by The Guardian, Channel 4 and others over the past few days go right to the heart of the kind of country we think we are living in. I argue that they demonstrate that current electoral law is woefully inadequate. I think they show that the regulation governing our democratic processes urgently needs to be updated and reformed. They show, I believe, that something is rotten in the state of our democracy.

The combination of big money and big data is overwhelming the chronically weak structures that are supposed to protect us against cheating and fraud. As others have said, we are trying to apply laws from the analogue era to the very different reality of the digital age, and it simply is not working. It took the Information Commissioner almost a week to get authorisation to get through the front door of Cambridge Analytica, during which time presumably the delete button had been pressed a great many times. The Electoral Commission, meanwhile, has been investigating claims of the misuse of electoral funds for almost a year. Why on earth do we not have rules that require donations to be reported in real time, and the same for spending? Why do we not have a body with more resources and real teeth? Things urgently need to change.

Electoral law is based on two fundamental principles. The first principle is that parties and candidates compete on what should be a level playing field in terms of resources, which is presumably why we have national and local spending limits in elections. The second principle is that elections are open and transparent, so parties and candidates have to be transparent in their communications with the voters and it is unlawful to make false claims in those communications. The allegations about the true nature of the relationship between Vote Leave and BeLeave suggest that there may well have been cheating when it comes to the first principle, and the investigations into Facebook and Cambridge Analytica, and the spending of huge sums of money on micro-targeted political advertising based on data harvested from voters’ social media profiles, suggest that the second of these two principles is also under great strain in the digital age.

Frankly, Facebook’s desperate adverts on the back pages of Sunday’s newspapers, just a couple of days ago, suggest to me that it knows that its bubble is bursting. We now need to update the law to ensure that people are protected from this social media mega-monopoly. Just because the chief executives of Facebook and Google wear T-shirts to work and turn up on skateboards does not mean that they are not aggressive capitalists, and we need to get a bit wiser to that fact.

The law regulating campaign activity and finance—the Political Parties, Elections and Referendums Act 2000—was drawn up almost 20 years ago, long before Facebook or Twitter even existed, let alone had any role in political campaigns. It is considerably more difficult to ensure the compliance of adverts on social media than the compliance of adverts in newspapers or on billboards. Voters simply do not know what is being done with their data by a company that, ultimately, wants to make as much money as possible from the information it has on each of us. Not surprisingly, the regulators struggle to regulate.

This undoubtedly presents a complex challenge to all politicians, as social media platforms overtake the national and local press and media through which we have traditionally communicated with our electorate, but without the same level of transparency and scrutiny. However, it is a challenge that we must meet. The need for a reprogramming of the way parties and campaigns are funded could not be greater. Whether it is donations from Russian oligarchs on one side of the House or from former Formula 1 bosses on the other side, people are sick and tired of a politics that is awash with big money without proper oversight. I argue that the case for state funding for political parties could scarcely be stronger.

[Layla Moran]

Does the hon. Lady share my concern that the House voted for the Democratic Unionist party’s donation not to be scrutinised before 2017, so that massive donation now cannot be scrutinised in the proper way? We do not know the origin of that cash.

[Caroline Lucas]

I absolutely share the hon. Lady’s concern; she is right that that should have been looked into at the time, rather than pushed into the long grass. It is yet another reason why I am calling for urgent cross-party talks on updating our online campaign regulations and reforming the Political Parties, Elections and Referendums Act, including consultation with the Electoral Commission and the Information Commissioner on what new powers and resources they need in order to fulfil their role in safeguarding our democracy.

The revelations by Shahmir Sanni about Vote Leave and BeLeave raise related but somewhat different questions, some of which need to be addressed to, and answered by, certain Members on the Government side of the House, for they strongly suggest that some of those who worked for the official Brexit campaign during the 2016 referendum, some of whom now work for the Prime Minister in Downing Street, committed criminal breaches of electoral law on overspending and collusion. Vote Leave, whose leading members included the current Foreign Secretary and Environment Secretary, formally declared it had spent £6.77 million during the 2016 campaign—this was within the £7 million limit. But that sum does not include a £625,000 donation that Vote Leave gave to BeLeave, the Brexit campaign aimed at students and young people, which BeLeave spent on the very same digital marketing company, Aggregate IQ, used by Vote Leave. As the right hon. Member for Carshalton and Wallington (Tom Brake) set out powerfully, there is substantial evidence of constant communication between Vote Leave and BeLeave, which were based in the same office, shared the same computer drive and seem to have had advice going between them as to the setting up of their constitution, their bank account and so on. It is insulting to suggest that these two organisations were not co-ordinating very, very closely.

So it is simply not good enough for the Prime Minister to have airily dismissed the questions that were raised by these revelations as she did in the House yesterday. I might add that her attempts to brush off complaints about the disgraceful outing of Shahmir Sanni were beneath her and bring shame on her office. If the laws were broken, those involved need to be brought to justice, because if they are not, and if we do not fix the shortcomings of our electoral law and its regulation, this Government will go down in history as the one who sat and watched while the very lifeblood of our democracy drained away, and voters will have taken back control for nothing. That is why I also think we need an independent public inquiry to establish, as a matter of urgency, whether electoral law was broken by any of those working for Vote Leave and BeLeave, and, crucially, what current Ministers knew at the time.

--- Later in debate ---

[Tommy Sheppard]

The right hon. Gentleman is ahead of me. I was going to say that I have had cause over recent weeks to wonder: what if we had done it differently? What if the designated campaign organisation had come to me and said, “We would like you to do this activity, and the best way to do it, because we do not want it in our budget, is if we set up a separate organisation. Just to make it easier for you, our lawyers have done the paperwork to set up the organisation. Just to make it easier for you, you can have our staff and you can work out of our office. Just to make it even easier for you, you don’t need to bother about writing the cheques, because we will book and pay for the hall and the production”? What would have happened if we had done that, I wonder? I am in no doubt about what would have happened: the Electoral Commission would have investigated. It would have found me and Yes Scotland in breach of the regulations. We would have been fined and we would have been reported to the procurator fiscal for prosecution on criminal charges.

I say that because that lived experience frames my opinion of the events we are talking about today, and my opinion is that this stinks to high heaven. In preparation for this debate, I looked at the original investigation and judgments of the Electoral Commission with regard to these complaints, and—I recommend hon. Members do this—at the High Court judgment on the application for judicial review of that decision. What it comes down to—what is absolutely central to this debate—is not whether different campaign organisations were arguing for Vote Leave, but whether they colluded to breach the expenditure limits that were set down. That is central.

Looking at the High Court judgment and other documents, it is clear that the most important thing is whether or not a common plan was in existence between Vote Leave and BeLeave, as defined under the 2000 Act. I have to say, in a situation where Vote Leave sets up a subsidiary organisation called BeLeave, uses its own personnel to establish it, manages to send it its lawyers and all sorts of support, and provides offices, computers and drives on the server for the same people, it is very difficult indeed to escape the conclusion that there was collusion and organisation between the two.

We are being asked to believe that Darren Grimes took a £600,000 contract and went to a data analytics firm in Canada, completely independently of people in Vote Leave, who had already spent £2.7 million with the very same company. It is literally unbelievable and we need to support the Electoral Commission and others in investigating this to the bottom.

[Layla Moran]

Does the hon. Gentleman not agree that what would be even worse than any of this would be if the Electoral Commission came to the conclusion that it cannot prove it? That would say to me that there is something fundamentally wrong with the laws under which the organisations are operating. That is what this debate is about: how do we stop this happening again, should they not be found to have been colluding?

[Tommy Sheppard]

Indeed, and we will have to await the outcome of the Electoral Commission’s investigation before we consider whether the legal framework and the support that is provided for the Electoral Commission are in fact adequate for this task.

We have this new evidence. The Electoral Commission, by the way, had already reopened the investigation before the whistleblowing information came out in the last seven days, but we are surely indebted to Shahmir Sanni for what he has done in the service of democracy in this country. I have watched his video recordings and it is clear that we do not share the same point of view. We did not share the same point of view on Brexit during the campaign, and we do not share it now, but I do not think that anyone who watches those interviews can fail to be moved by the decency, integrity and bravery of that young man in coming forward and putting himself at risk. We owe him a great debt.

The response of our Government to the whistleblowing allegations therefore worries me. Others have mentioned this, but the Prime Minister’s explanation yesterday that this was a personal statement by Stephen Parkinson just does not hold water. How can it be a personal statement when someone is at a desk in No. 10 Downing Street, at the heart of Government—when they are on the payroll, issuing a statement from No. 10 Downing Street? This must be the first occasion in history, certainly that I can remember, when the Government have decided to attack a whistleblower by outing them as gay, causing them the possibility of actual harm to themselves and their family, and it is a disgrace.