Yesterday the Electoral Commission decided not to refer Conservative MP Zac Goldsmith’s 2010 general election expenses to the police for further investigation.
Though this brings to an end official inquiries into whether Zac Goldsmith had kept within election law, the details of the Electoral Commission’s rulings leave several questions about Goldsmith’s expenses unanswered. They also suggest that in future spending under the limit during the long campaign may be seen as a defence for breaking the short campaign limit.
As the Electoral Commission reports:
The Commission concluded that the total expenditure on the ‘short campaign period’ may have been under-reported by at least £1,185.
Despite finding that the law “may” have been broken, the Commission decided not to refer the matter to the police because:
In determining whether to refer the case to the police for criminal investigation under the RPA, the Commission considered the following factors in addition to whether or not an overspend may have occurred:
o the relative amount of the potential overspend
o the fact that the aggregate spending limit was not exceeded
o the absence of any evidence of intentional circumvention of the rules.
Taking all of these circumstances into account, the Commission decided that a referral to the police for criminal investigation was not appropriate in this case.
The reference to the aggregate spending limit is to the combined short and long period campaign limits:
This would have resulted in an overspend of £966 against the limit for the ‘short campaign period’. When looking at the amount spent over the whole campaign period (i.e. an aggregation of the ‘long’ and ‘short’ periods), even taking the potential under-reporting in the short period into account, the total expenditure remains below £35,000. This was within the aggregated limit of £39,856 for both periods.
What is disturbing about this logic is that it implies that in future a campaign could under-spend during the long campaign and so have a defence against over-spending in the short campaign. However, the evidence about when people make up their minds to vote is that it mostly happens either before any of the campaigns start, or just before polling day. Therefore shifting expense from the long to the short campaign would confer an electoral benefit, and undermines one of the reasons for having separate long and short campaign periods.
As this was not the only reason the Electoral Commission gave for ending the case at this point, it would be foolish as well as unethical for future candidates to deliberately set out to use this defence. But it is a worrying sign about the attitude the Electoral Commission may take in future cases.
For more on the implications of this case see What does the Zac Goldsmith case mean for election expense controls in future?.