How Theresa May could lose the general election (it’s much more likely than the media think)

The Conservatives are well ahead in the polls. The opinion polls which, moreover, have a pretty good record at getting the winner of the general election right.

Yes, you read that right. There have been nineteen general elections since polling begun in Britain, and the polls got sixteen out of the nineteen right (full data here). That’s 84% correct, or a top mark in most exams.

What’s more, the errors in the polls – in both the sixteen and the other three (1970, 1992 and 2015) – have been consistent. In the sixteen the polls got Labour generally slightly too high and in the three big misses, they got Labour much too high. So even if the polls are out in the way they’ve been three times out of nineteen in the past that’s still bad news for Labour, as the pattern is that the result will be even worse for Labour than the polls say.

Or to look at the data another way, as I’ve pointed out before, almost all of the breathless horse-race coverage by journalists of British general elections is irrelevant as the consistent picture is not of election results being decided by the election campaign but by the simple rule of whoever is in the lead months in advance goes on to win. You can sleep through the whole election campaign and not really miss anything that helps explain the result.

So it will take a once-in-a-century type dramatic event to stop the Conservatives winning.

Handily for those who wish to see that, we do have a once-in-a-century type dramatic event lined up. In fact, one that is unprecedented in its scale such that ‘never before in our democratic history’ is an accurate label.

The event? The imminent Crown Prosecution Service (CPS) decision on whether or not to go ahead with prosecuting over thirty Conservatives. The exact timing of this decision is not known, although The Independent has reported: “Any charges would have to be made before the date of the general election”, whilst a CPS source told Buzzfeed something similar – and there has also been talk of the decision happening before the close of nominations.*

This scandal involves not just any old Conservatives, but numerous MPs, senior party officials and even one of Theresa May’s closest and most long-standing advisers. This is not a few members off in some obscure local party who get called “senior” in an effort to make things seem exciting. This is proper senior.

So far, the media has given only very little attention to the fact that the announcement is due to come before polling day. In all the coverage of Theresa May‘s decision to call the general election, there was almost nothing of the sort, “well it’s a huge gamble given what the CPS is up to”.

Ah, you might think – perhaps that’s because everyone in the know is sure that the CPS will decide not to prosecute.

Except no, we already know that there is a very strong case against many if not all of the thirty plus. That is because the Electoral Commission has already investigated in detail, published its report and levied punishment based on the evidence standing up to close scrutiny.

The Commission was only looking at the national spending returns it is responsible for. But what it repeatedly concluded, across numerous seats – including by-elections and ones visited by the Conservative Battlebus during the general election – was that the Conservatives wrongly included spending in their national returns which should have gone in the constituency returns, making those constituency returns wrong. They levied a record-breaking fine on the basis in part of those national returns errors. They didn’t take action over the inextricably-linked constituency return errors because that isn’t in their remit. That’s for the police and the CPS.

So we know the CPS is considering charges against over 30 Conservatives (and some of the most commonly cited reasons as to why they might not go ahead are wrong). We know that the Electoral Commission has already found the evidence to be solid enough to levy a record fine. We know the CPS is getting right up to its deadline for deciding.

What impact would the news that, say, a dozen Conservative MPs, one of Theresa May’s closest advisors and a string of officials are all being sent to court on charges of lying and cheating their way to electoral victory have on the election? Even if (as might be the case) the news broke just in time for the Conservatives to drop those MPs and nominate new candidates, that would still leave an enormous scandal, perhaps even a bigger one as dropping candidates could be seen by many as an admission that even the Conservatives accept these are serious, credible charges.

Perhaps the CPS will decide not to prosecute. The CPS could come to a different view of the facts than the Commission. Or decide that although they think the law was broken that the only charges they can proceed on require proving a dishonest motivation and that won’t be possible. Certainly possible, but by no means certain.

Which is why there’s a serious chance that the largest British political scandal ever will land all over the media just before polling day. Never before in our democratic history would so many MPs all be up for prosecution at the same time as part of the same scandal – and one about rigging an election, no less.

The Conservatives may be well ahead in the polls, but their victory is far from certain.


* The exact deadlines are somewhat obscured by the fact that the 1983 Representation of the People Act sets down a one year deadline from the suspected offence having been committed. In this case, that means – most likely, although this is not a point of law that has been specifically tested – the date on which the relevant election expense return was submitted, although there could be an argument about it being when the return was signed by the agent and candidate, which could have been an earlier date. The date of submission, or indeed of signing, will vary between different constituencies. That one year deadline would have expired anyway by now, but there is a legal power – which has been widely exercised – to extend it. It can be extended to no more than 24 months after the offence. So if you take the extreme case of the last date on which expense returns could have been submitted and then add the maximum 24 months, you get to slightly after the 2017 general election polling day. However, the media reports so far have repeatedly pointed to some if not all of the decisions being made before then. [Note: this footnote added and slight edits made to the original post to clarify the deadlines point as it attracted particular attention when this post was first published.]


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