The Representation of the People Act 1983: time for reform?

An announcement that the CPS will not be bringing a prosecution rarely makes front page news. On 10 May 2017, the news that no charges would be brought following a high profile police investigation into allegations concerning the expenditure of Conservative Party candidates during the 2015 General Election campaign did just that. The allegations were investigated by 14 police forces, and were said to concern several parliamentary candidates, including serving MPs, and their election agents allegedly submitting inaccurate expense returns.

The rules surrounding elections in the UK are complex, set down in Practice note, Offences concerning elections and referendums. Section 76(2) of the Representation of the People Act 1983 (RPA 1983) sets a limit on the amount of money an individual candidate can spend. To act as a check, it is a legal requirement that candidates submit an accurate return of their expenditure. Similarly, there are rules in place for national campaign spending.

The allegations concerned a failure to properly account for particular spending, when the Conservative Party used a “Battlebus” to bring party activists to target marginal seats. It was suggested in an investigation by Channel 4 television that travel and accommodation costs of party activists had been classified as national party expenditure rather than local expenditure, and not declared on the records of local candidates.

On 16 March 2017, the Electoral Commission, the independent body that oversees elections and regulates political finance in the UK, announced the findings of an investigation into the expenditure. The Commission’s findings included that:

  • It is likely that expense returns delivered by Conservative Party candidates at three by-elections during 2014 understated the value of the Party’s spending on the campaign and were not accurately recorded in the Party’s accounting records.
  • The Conservative Party’s spending return for the 2015 general election was incomplete, as it included payments that were not Party campaign spending, omitted other Party campaign payments and failed also to include all of the required invoices and receipts.

The Commission has powers under the Political Parties, Elections and Referendums Act 2000 (PPERA) to fine individuals or political parties that have contravened the spending rules for local and national elections. The Commission found that the Party’s registered treasurer was responsible for three contraventions under section 41 and two offences under section 82(4)(b) of PPERA. A fine of £70,000 was imposed on the Conservative Party.

The Commission’s findings may have led some to believe that prosecutions of individuals were likely. However, although the allegations were partly founded on the same facts, the two bodies were considering separate issues. The distinct role of the two bodies was succinctly put by Nick Vamos, the CPS Head of Special Crime:

While the role of the Commission is to regulate political finances and campaign spending, the role of the CPS is to consider whether any individual should face criminal charges, which is a different matter with different consideration and tests.

Most offences under the RPA 1983 are classified as corrupt or illegal practices:

  • Corrupt practices are indictable with a maximum penalty of imprisonment for one year and/or a fine, except for the offences of personation and making a false application to vote by post or proxy, where the maximum penalty is imprisonment for up to two years and/or a fine (section 168, RPA 1983).
  • Illegal practices are summary offences and the maximum penalty is a £5,000 fine (section 169, RPA 1983).

There are two criminal offences that election candidates can be convicted of:

  • Knowingly making a false declaration, a corrupt practice contrary to section 82(6) of the RPA 1983.
  • Failing to deliver a true return, an illegal practice contrary to sections 81 and 84, punishable by a fine.

In order to prove the more serious corruption offence, the prosecution must prove that the individual acted dishonestly (applying the test in R v Ghosh).

The CPS provided a detailed statement on their decision not to bring changes in this matter:

We reviewed the files in accordance with the Code for Crown Prosecutors and have concluded the tests in the Code are not met and no criminal charges have been authorised. Under the Representation of the People Act, every candidate and agent must sign a declaration on the expenses return that to the best of their knowledge and belief it is a complete and correct return as required by law. It is an offence to knowingly make a false declaration. In order to bring a charge, it must be proved that a suspect knew the return was inaccurate and acted dishonestly in signing the declaration. Although there is evidence to suggest the returns may have been inaccurate, there is insufficient evidence to prove to the criminal standard that any candidate or agent was dishonest. The Act also makes it a technical offence for an election agent to fail to deliver a true return. By omitting any ‘Battle Bus’ costs, the returns may have been inaccurate. However, it is clear agents were told by Conservative Party headquarters that the costs were part of the national campaign and it would not be possible to prove any agent acted knowingly or dishonestly. Therefore we have concluded it is not in the public interest to charge anyone referred to us with this offence.

The CPS decision provoked a partisan reaction, perhaps providing the perfect example of why law enforcement bodies must retain their independence.

The Prime Minister responded to the news by saying “The CPS has decided ….that no charges will be brought against any candidate in relation to this matter. The local spending was properly reported and the candidates did nothing wrong.” This is not what the CPS said and it ignores both the Commission’s decision and that the CPS conclusion that “the returns may have been inaccurate (but) it is not in the public interest to charge anyone”.

Similarly, the opposition leader announced he was “surprised” by the CPS decision not to prosecute. The CPS decision that prosecution was not in the public interest was clearly explained, and charging decisions should certainly not be second guessed without access to the full case file.

The comments made by Karl McCartney, Lincoln’s Conservative candidate who was an MP under investigation were the most extreme:

The Electoral Commission, (and) their anti-Conservative Head of Regulatory Compliance decided to engage in smearing the reputations of various Conservative politicians and their Agents. This whole saga amounts to no more than a politically-motivated witch-hunt. It is clear that those who lead the Electoral Commission who followed and allowed this action to take place are politically-motivated and biased – actions that have rendered this organisation wholly unfit-for-purpose. In these circumstances, the positions of the Executive Team and Senior Management Group – from the Chief Executive down to her side-kick who has spearheaded many, if not all, of these one-sided enquiries – are now untenable and I believe that they should resign forthwith. If the leaders of the Electoral Commission do not take this most honourable course of action, as public servants paid for by the taxpayer, I, and no doubt my colleagues who have been victims of the Electoral Commission’s witch-hunt, will take every opportunity after the General Election to persuade the newly-elected Government to abolish this incompetent organisation and ensure that those who comprise the Electoral Commission’s Executive Team and Senior Management Group are never to play a role in our Country’s public life again.

This is a surprising comment from a public official. It alleges a politically motivated “witch hunt”, ignoring the facts that the Commission had previously fined both the Labour Party  and the Liberal Democrats the sum of £20,000 for incomplete spending returns for the 2015 election. It also presumes that the CPS decision not to bring charges undermines the Commission’s decision to refer the matter in the first place when, as clear from the CPS statement, requires a “different matter with different consideration and tests”.

It also repeats criticism of a Commission member of staff, knowing that she had been investigated after a complaint of bias from the Conservative Party and cleared as no evidence was found. One hopes Mr McCartney will reflect on his calling for the abolition of the electoral regulator, and recognise that the integrity of the political process is an absolutely vital component in a democratic society.

However, it is clear that the law regarding elections is somewhat out of date, and in need of reform. The law does not reflect modern campaigning. The “bussing in” of numerous activists to a constituency is regulated, but the same activists targeting a constituency online via emails or twitter retweets is not. In the internet age, the boundary between national and local spending will become increasingly blurred.

Similarly, the issue as to what actually amounts to “spending” surely needs additional thought. In the EU referendum, Aaron Banks was reported in the Guardian as providing more than £7m to funding the leave campaign, as well as providing office space and staff. On 21 April 2017, the Electoral Commission began an investigation into Leave.EU’s EU Referendum spending return, following an assessment which concluded that there were reasonable grounds to suspect that potential offences may have occurred, focused on whether one or more donations, including services, accepted by Leave.EU was impermissible; and whether Leave.EU’s spending return was complete.

The wider issue of donors should also be considered. Donations to political parties of £500 or more are regulated by PPERA, and require political parties who receive a donation to check that they can accept it, record it and, if in excess of £7,500, report it to the Electoral Commission. Donations can only be accepted from UK based individuals or entities. However, political parties are not regulated entities for the purposes of the Money Laundering Regulations 2007 (soon to be replaced by the 2017 regulations) and therefore do not require the in-depth background checks that one might expect for, in some cases, significant amounts of money. Although large donations must be reported, providing a greater level of transparency, perhaps the most significant reform to electoral law would establish the requirement for political parties to undertake appropriate money laundering checks, including establishing the origins of any funds, prior to accepting donations. The purpose of donations should also be regulated. A recent allegation suggesting the Green Party received a £250,000 offer from a donor not to stand in the Richmond Park by-election is the subject of much speculation.

The law, and the potential criminal offences concerning the conduct of elections is in need of reform and should be a priority for any government after 8 June 2017. Such reform must seek to avoid the partisan way in which allegations have been treated in the past, and ideally seek cross party support to ensure transparency.

Practical Law David Bacon

Leave a Reply

Your email address will not be published. Required fields are marked *