Vote Leave Campaign: Electoral Law

Martyn Day Excerpts

Monday 10th September 2018 Westminster Hall

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

It is a pleasure to serve under your chairmanship today, Sir Roger. I am grateful to the hon. Member for Cambridge (Daniel Zeichner) for opening today’s debate on behalf of the Petitions Committee. With only 200 days until the UK is scheduled to leave the EU, time is clearly of the essence. I commend him for being so generous with his time and taking interventions today. We may have suffered in today’s debate because of the competing EU debate that is about to begin in the main Chamber. However, the Members who have spoken have covered just about every aspect that is salient to the issue. I am also grateful for the hon. Gentleman’s comprehensive presentation; there is much on which I agree with him. I am particularly grateful for his reminding us that the referendum was advisory and not legally binding. However, many of the decisions before us will be about political judgment.

Members have raised the point that adequate legal advice on whether article 50 can be rescinded would be extremely useful, especially in relation to future decisions that will have to be made. We will need to wait for the decision of the inner house of the Court of Session to see whether it tells us that.

We can be in no doubt that there have been illegal activities by Vote Leave. The Electoral Commission has determined that the electoral rules have been broken, and both Vote Leave and BeLeave have been fined and referred to the police. I do not wish to pontificate about what may or may not happen with regard to ongoing police investigations; that is for them to determine, and due process will take place. It is enough to acknowledge that it is right that the matter has been referred to the police. We must let the investigation take its due course.

I will, however, comment on how inadequate the powers of the Electoral Commission appear to be in relation to this matter. If we are to have confidence in the integrity, and outcome, of referendums and elections, transparency in the process is essential. It is particularly disappointing that Vote Leave displayed an arrogant and unco-operative stance, forcing the Electoral Commission to use its legal powers to compel it to provide evidence. It was bad enough that that attitude demonstrated that Vote Leave thought it was above the law, but that was compounded by the paltry level of fines imposed, totalling £61,000 against a multi-million pound campaign, which can be dismissed as the cost of doing business—almost with impunity.

With parliamentary constituencies, results can be declared void as a result of overspending by successful candidates but no such provision exists for overturning the referendum result; the only provision for challenging it was by judicial review within six weeks of the result. That is clearly unsatisfactory, given that the Electoral Commission took almost 13 months to publish its report into the lead Vote Leave campaign funding and spending, although that is in no way a criticism of the Electoral Commission. The period needs to be significantly longer in future referendums, and could be further aided by a more transparent, real-time declaration of expenses and donations. That needs serious consideration by Ministers.

Vote Leave was not alone in being fined by the Electoral Commission; Leave.EU was also fined a total of £70,000 in May this year, and offences were also referred to the police. Once again, that highlighted the inadequacy of the range of fines available to the Electoral Commission. It would be fair to point out that several participants on the remain side of the referendum have also been fined, but in each case at significantly lower levels and, more significantly, without any individuals being referred to the police.

All that adds to the perception that the existing electoral laws are not fit for purpose. There has been talk of

“respecting the result of the referendum”,

to use the phrase in the Government’s response to the petitioners, but what exactly does that mean? In Scotland—a nation that we were constantly assured in the 2014 referendum was an equal partner in the Union—people voted overwhelmingly to remain, by 62% to 38%. Yet Scotland is being dragged out of the EU against our wishes—the peril of being part of an incorporating Union with a much larger partner. Clearly that example indicates that respecting the result of the referendum can be interpreted differently by different members of the UK.

What about respecting the process of the referendum to achieve a fair result? Surely that is more important. If the result was not fair, should it be respected? I argue that it should not be, and many reasons support that position—most importantly what will happen in future contests if campaigners can get away with breaking the rules. There must be full transparency to hold any of those who seek to influence or undermine our democracy to account.

That brings me to another dimension of the debate: dark money. BBC Spotlight Northern Ireland has revealed that the former vice chairman of the Conservative party in Scotland, now chair of the Constitutional Research Council, Richard Cook, was behind the Democratic Unionist party’s £435,000 donation during the EU referendum, and, to use BBC Spotlight Northern Ireland’s words, has

“a trail of involvement in illegal activity and foreign money”.

Donation rules in Northern Ireland mean that details about donations made before July 2017 remain hidden. It is worth noting that, in response to the BBC, the Electoral Commission continues to urge the UK Government to introduce legislation enabling the publishing of information on donations from January 2014. We need a full debate on the Scottish Conservative dark money, as we have seen only the tip of the dodgy donations iceberg. The Scottish National party has serious concerns regarding the dark money handled by the Scottish Tories in the 2016 referendum. We have called repeatedly on the Scottish Conservatives and the Prime Minister to reveal the full details of the transactions between the DUP and the Scottish Tory-linked CRC. They continue to refuse to do so. Perhaps the Minister will enlighten us on why the original source of that dark money is being kept a secret.

Our electoral laws must not be treated as an optional extra by campaigns. The £250 to £20,000 fines available to the Electoral Commission are simply inadequate. Fines should be unlimited or, at the very least, proportionate to the spending ability of the party or campaign group involved. We have to ask ourselves what level of electoral rule-breaking should invalidate this or any future referendum. The answer is not simple.

Given what we have heard, can we have confidence that the outcome of the EU referendum was secure? Overspending, the deliberate co-ordination of expenditure, dark money, possible foreign interference, fake news and potential misuse of online data, all of which played a part in the EU referendum and leave an unpalatable taste in the mouth, will lead many members of the public to conclude that the referendum was won by cheating. Much needs to be addressed to ensure public confidence in our democracy. Pressing on regardless fails to ensure that. Surely now is the time to stop the process of national self-harm and remain within the EU. Instead, we should concentrate on making our democratic systems fit for purpose in the modern digital age.