Are the Tories in trouble with the law over their by-election primary? Unlikely

Michael Crick, now possibly slightly older than in the photograph, has been speculating:

Are the Conservatives about to come a huge cropper with David Cameron’s extremely expensive primary election in Rochester?

A couple of Britain’s top election lawyers say the primary which the Conservatives are currently holding to pick their candidate for the Rochester and Strood by-election could open the by-election result to serious challenge in an election court.

Notice the “could” in there which, if you’re used to hearing lawyers give legal advice, you’ll know signifies little than that they are still alive and breathing. Almost anything “could” happen and lawyers frequently couch even the most improbable of events in a preliminary “could”. You need to hear or read their full views in order to know how big the “but” is that arrives shortly after – and unfortunately Michael Crick’s report doesn’t give any real details of what the lawyers said.

What of the substance? Crick’s argument is that the Tories are spending very large sums of money on their primary to select a candidate (true), that this will result in the person being better known by the electorate (also true) and that if they had therefore to include the costs of the primary in their by-election expense limit, they’d be in a lot of trouble given how much it is costing (also true).

But is that “if” the case? Do they have to include the costs?

Selection costs are not normally included in election expenses, and the guidance from the Electoral Commission looks clear. But Crick says two unnamed lawyers say that the costs “could” have to count because:

The law on this issue is laid down by the Representation of the People Act 1983, and in particular part II, section 90.

One part would seem to give the Conservatives some confidence. Section 90ZA (1) states that election expenses are what: “is used for the purposes of the candidate’s election after the date when he becomes a candidate at the election”.

So indeed, it seems, the expenses clock doesn’t start ticking until they announce their candidate on Thursday.

However, read on. A few lines later, section 90ZA (5) says that the act’s earlier reference to a candidate: “includes (where the context allows) a reference to a person who becomes a candidate at the election after the expenses are incurred.”

That is attempting to put an impressively perilous interpretation on the wording of the Act because what it’s arguing is that – to substitute the words to make the point clear – 90ZA (1) really means ‘is used for the purposes of the candidate’s election after the date when he becomes a person who becomes a candidate at the election’.

It’s an interesting existential point about when do you become a person who later becomes a person who then stands for election, but whether it’s conception, birth or somewhere in between, isn’t really material to the problems of this interpretation, especially when you add the Electoral Commission’s interpretation (not legally binding but a key defence) along with the intention expressed in Parliament when this part of the 1983 Act has been amended, first in 2000 to introduce the clear cut-off and then subsequently.

‘Case law’ in terms of previous Electoral Commission investigations (not quite the same as actual case law, but indicative of what the lawyers have concluded on other occasions) has also kept to the normal definition of their being a clear cut-off start date which isn’t undermined by publicity around selections beforehand.

So “could”? Yes. But likely? No.