Five MPs face questions over election expenses – how good are their answers?

Channel 4′s investigation with the Bureau of Investigative Journalism into MPs’ election expenses has raised questions about another five MPs in addition to Zac Goldsmith.

Having already looked at some of the legal questions around Zac Goldsmith, how do the other five stack up? Two raise important points of how the law should be interpreted, one has unclear evidence so far and two appear to involve administrative errors without any actual overspending.

First, the legal issues.

Phil Woolas (Labour), who is already facing a court hearing in the autumn over his election campaign, is accused of not declaring leaflets that were printed but not delivered. His defence is that “the law is quite clear, you declare what you use and not what you order”.

Whether or not the law really says this is debatable as Schedule 4A of the 1983 Representation of the People Act says that you must include in your election expense return, “Unsolicited material addressed to electors (whether addressed to them by name or intended for delivery to households within any particular area).”

On one reading, the use of “intended for” means Phil Woolas was wrong to exclude the costs of undelivered leaflets because the phrase covers leaflets that were intended to be delivered, whether or not they were actually delivered. On an alternative reading, however, “intended” is part of a phrase meant in contrast to addressed items, and should not be taken to have the first meaning. An example of why it should not have the former meaning is that, if it did, it would mean that undelivered direct mail does not count towards the limit whilst undelivered leaflets do and there is no reason why the law should have been intended to have this inconsistency.

There are further nuances to the legal arguments over this point (including whether or not Parliamentary intention in drafting the legislation can be considered), and I’ve not found a case of them being tested in the courts. However, saying “the law is quite clear” does not really capture the reality of the situation.

The other important point of law comes with Dan Byles (Conservative). He split the cost of posters bearing his name over three elections, even though they were purchased just ahead of this election and used for the first time. Taking my favourite example of clipboards, which can be used over several elections and also outside of elections, it is reasonable to only include a part of their total cost in any one election. However, purchasing posters specific to a particular candidate (who there is no guarantee will ever stand again) and then on first use splitting the costs with future elections is pushing this principle to the legal limit.

As in the Phil Woolas case, there is not a clear piece of legal precedence, so we do not know if it is also pushing it beyond the legal limit.

In the case of a third MP, the evidence is not clear. Ben Gummer (Conservative) is accused of failing to account for T-shirts and staff, but says that although both were used and paid for prior to the election neither were used during the regulated campaign period. In the absence so far of any independently verifiable evidence about the use of staff and T-shirts, this accusation cannot be resolved one way or the other.

Then finally we have a pair of similar cases. Sarah Teather (Lib Dem) is accused of having inconsistent maths in her return – “it said a quarter of this [postage bill] was for her campaign, but when we look at the actual figure declared, it’s inexplicably lower”. Her agent has responded admitted the paperwork was not all it could be, saying the returns “could and should have been clearer”. Similarly, Gavin Barwell (Conservative) has admitted omitting two items from his election expense, though adding them in does not appear to take his return over the limit. The Conservative Party says he is “taking appropriate action”, presumably a reference to seeking relief in the High Court. This is a straight-forward legal process which allows for someone to own up to breaking election law by mistake. If they can demonstrate that it was an inadvertent mistake without significant consequences, they are excused the breach of the law. The legal costs for seeking relief can however run up quite quickly, and a total bill running into four figures is far from uncommon.

In the cases of both Sarah Teather and Gavin Barwell it therefore appears that administrative mistakes took place, but they did not alter the result and did not cause more money to be spent than legally permitted. There are many other areas of life where similar mistakes do not result in legal penalty, so unless an example can be found of either urging a different standard outside politics, thereby opening them up to accusations of hypocrisy, they look to be in the clear.

As I told the Bureau of Investigative Journalism when I did an interview with them, clear and firm action should be taken to resolve the issues which has been thrown up by these investigations. We may see cases go to court, in which case the legal system will produce precedent for everyone to follow in future, but if no legal action is commenced then the Electoral Commission will need to come up with revised guidelines (or requests for the law to be changed) else too many opportunities will have been opened up for people to further next time round. For example, if no action follows, candidates from all parties will start taking the costs of new posters naming them and split them over future elections – two or three perhaps first time round, but then competitive pressures will encourage someone to go for four, or perhaps five… and so on and on until eventually something is done to sort the matter. Far better to do that now.