How the Electoral Commission got it wrong: it failed to use its legal powers

The fallout has barely started from the police investigations into constituency election expense returns from the 2015 general election. Will an elected government be stripped of its Parliamentary majority by court action? Or will it be the dampest of damp squibs with all the investigations dying in a Crown Prosecution Service in-tray?

Wherever between, or at, those two extremes events end up, two things should be clear already.

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One, there’s much more wrong with our election expense rules that the specific allegations of law breaking being considered. I’ve been pointing that out for around a decade now. As a journalist I spoke to a few days ago said, at least I’m no longer a lone voice but part of a growing understanding of just how broken the controls are on constituency expenditure even if everyone keeps scrupulously to the law. I’ve written about that in Constituency expenses limits are dying off in the UK.

But there’s also a second point which is clear: the failure of the Electoral Commission to act.

The Electoral Commission has legal powers to help clean up the expenses mess – and it has repeatedly failed to use them.

More specifically, under the 1983 Representation of the People Act, Schedule 4A, Part 3 the Electoral Commission has the power to present rules on how to interpret key parts of the law related to election expenses. That includes both accommodation and transport costs – both of which are central to the current police investigations.

Once the Electoral Commission presents such draft guidance, the government can table it in front of Parliament followed by the usual, and simple, statutory instrument process to vote them into force. If the government wishes to table an amended form of the Electoral Commission’s request, it has to set out its reasons in public.

There is no wait for a slot in the legislative programme needed. There is no complicated passage of legislation through both halves of Parliament required. There’s no vulnerability to the myriad of ways in which governments can soft pedal on legislative proposals and stop them coming to a vote, let alone pass into law, in a low profile way.

Instead, there is a clear, simple process – and one where a government derailing of the Electoral Commission would come with high publicity and so high political cost. So too would the government deciding simply deciding to sit on the Electoral Commission’s guidance and never take it for debate. In current circumstances it wouldn’t be very long, I’d wager, before an attempted refusal to debate such guidance saw a petition to Parliament on the topic hit the 100,000 trigger at which it too would have to be considered for debate.

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Setting out such guidance cannot fix all the problems with election expense rules – such as the absurd situation whereby staff costs are specially exempted from the national expense limits for political parties. (A special exemption for staff costs not granted to charities and other third party campaigners.)

But such guidance could fix many of the problems the Electoral Commission has been or should have been aware of for years.

It should stop dragging its feet and start writing guidance.

Updated 19 May to correct and expand on one point of the legal process.

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