Bring me the head of the Electoral Commission

Peter Hain’s resignation to ‘clear his name’ is, in some respects, one of the least surprising news stories of the week, there having been an air of inevitability surrounding the likely denouement of this story since it was revealed that sums of money involved (£103,000) were several orders of magnitude above any prior known case of the non-reporting of donations.

So far as where Hain stands legally these two posts from Head of Legal cover much of the relevant ground and include some very pertinent criticisms of the legal framework of PPERA, which is, by any reasonable standards, a bit of a dog’s breakfast of a law.

So far as any possible charges are concerned, the relevant statute is to be found in S12 of Schedule 7 of the Act, which provides for the possibility of preferring charges for non-compliance with the provisions of S10 of the same schedule, which requires candidates to deliver a full and accurate report of campaign donations that exceed a set amount to the Electoral Commission with 30 day of accepting the donation.

What the law permits, by way of defence, is that a candidate facing a S12 charge must show that they took all reasonable steps to ensure that the paperwork was compiled and forwarded as required and that they exercised all due diligence in ensuring that everything was in order. Hain’s ‘get out’ here, given his comments about being too busy as a minister, can therefore only be one of hanging a member of his campaign team out to dry – if he can demonstrate that he instructed a member of his team to deal with these reports and made every reasonable effort to check that the work was done, only then to find that the individual had lied to him, then Hain may personally be in clear – if not, then Hain has a problem as, in the construction of the law, there can be no doubt that an offence has been committed. The fact that the paperwork in question was not submitted on time and in accordance with the law is not in dispute.

What can be disputed here, legitimately, is whether the various powers and sanctions attached to this offence are just, fair and equitable.

Although the specifics of the offence are straightforward enough – no report on time equal offence committed – the range of plausible explanations for why a report wasn’t filed on time is actually very broad and range (roughly in order of severity) from genuine misunderstanding (the law on precisely what has to be reported, by whom and in what circumstances is, in places, rather unclear, as George Osborne recently discovered) through cock-up, lack of diligence, incompetence and negligence right up to malfeasance (where a deliberate attempt is made to conceal donations) and any reasonable person would consider that, having established that an offence has been committed, the relevant explanation as to why the offence was committed will by the primary, if not overriding factor, in determining the appropriate level of sanction to be applied…

…provide, of course, that the range of sanctions open to the Electoral Commission is sufficient to cover all the relevant possibilities.

And here where the law runs into problems.

Faced with a failure to report donations, the Electoral Commission has only three options open to it.

1. It can do nothing.

2 It can give the offending candidate a slap on the wrist by way of some sort of reprimand, or

3. It can throw the candidate to the dogs by calling in the police with a view to ascertaining whether there is sufficient evidence to prefer charges.

Now, so far as matching sanctions to severity is concerned, do nothing seems appropriate where there is evidence to support the genuine misunderstanding explanation or in cases where there is a very minor infraction accompanied by an appropriate level of contrition, i.e. sorry this is a couple of days late… bit of a cock-up at the office kind of thing.

At the lower end of the scale, mild failures in diligence and even minor cases of incompetence, i.e. reports entered moderately late by a matter of a few weeks because the candidate fails to stay on top of things, might well merit a rebuke of some description with the proviso that the greater the degree of incompetence the more stinging the reprimand.

And, moving to the other end of the scale, serious cases of negligence and, certainly anything that hints of possible malfeasance would merit a formal police investigation and, depending on the evidence, a prosecution in which the maximum penalties that could be applied would be a level 5 fine (up to £5,000) plus either six months as a ‘guest’ of Her Maj, if the case is heard in a magistrates court, or up 12 months if it goes to trial in Crown Court. On top of that, a criminal conviction, especially one resulting in a custodial sentence, could mean disqualification from office and if the court decides that there is sufficient evidence to prove that a deliberate effort was made to conceal donations then it can also order forfeiture of the donation(s) in question.

So Hain’s worst case scenario is a stay the Scrubs, the abrupt end of his career as an MP and, given that these donations were solicited to cover significant debts incurred during his failed campaign for Labour’s deputy leadership, also the possibility of a trip to the bankruptcy court, which would, of course, end his career as an MP, even if he doesn’t end up adding to the Ministry of Justice’s prison stats.

And in between those options?

Well that’s where the law (and the Electoral Commission) runs into problems because, in terms of sanctions, its powers bounce between throwing the book at candidates and giving them a bit of a ticking off with nothing at all to occupy the middle ground and tackle, effectively, cases which may arise in which a reprimand is insufficient to deal with the severity of the offence, leaving the Commission looking weak and ineffectual but, equally, in which a formal police investigation, with all that will entail in terms of negative media attention and political pie-throwing by opponents, would be excessive to the point of visiting an injustice on the individual in question.

What the Commission needs, in order to both enhance its credibility as a regulator and discharge its function is a fair and just manner, is the option of a sanction that falls somewhere in between a slapped wrist and a visit from Inspector Knacker, which, in keeping with the powers afforded certain other regulatory bodies (ie. Companies House, HM Revenue and Customs) would be the power to levy statutory fines for minor non-reporting offences on much the same basis as either of the two other bodies mentioned, i.e. an automatic fine for late submissions levied on sliding scale such that the later the report arrives, the higher the fine – and these fines would, of course, be personal and would, therefore, be permitted to offset against parliamentary allowances and expenses.

(Those of a cynical disposition may wish to take a few moments to consider precisely why it is that such an obvious, commonplace and widely used practice, when it comes to the late filing of tax returns and company accounts, was not put in place when dealing with the reporting of donations and campaign expenditure by politicians and political parties – and yeah, I’m inclined to the ‘one law for us…’ interpretation of that one).

Hain has no one to blame for this present situation other than himself, that much is clear.

Moving on elsewhere (well over at the BBC) Nick Robinson provides some of the background to the Electoral Commission’s decision to finally cross the Rubicon and refer a Schedule 7 S12 (failure to report donations) case (Hain) to the police for investigation, the relevant sections of which are:

There are important differences between the cases of Peter Hain and those of Gordon Brown’s deputy, Harriet Harman, and Labour’s Scottish leader, Wendy Alexander, who are still awaiting the verdicts of the Electoral Commission.

The most obvious difference is scale. Peter Hain failed to declare over £100,000 whereas Harriet Harman’s deputy leadership campaign accepted a much smaller sum, £5000, from a proxy for David Abrahams and Wendy Alexander accepted just £950 from a Jersey-based businessman who was not a “permissible donor”.

Hain was regarded within the Electoral Commission as holding the law in contempt when he said he’d not met his obligations because he was too busy being a minister at the time and had left his declarations to his campaign staff.

Nick’s information may well be accurate – and his assessment of the thinking within the Electoral Commission does appear very plausible – but, unfortunately, neither of the reasons given are, in themselves, sufficient justification to warrant referring Hain’s case to police and this, in turn, begins to raise some important questions as to the credibility of Electoral Commission as a regulator.

The scale of unreported donations in Hain’s case may well provide the Electoral Commission with one or more obvious ‘political’ (with a small ‘p’) motivations for referring Hain’s case to the police, not least in terms its appreciating the need to be visibly seen to be taking action in this case or suffer a near complete loss of public credibility, but as a matter of the clearest possible principle the scale of a non-reporting offence, in monetary terms, is and should be irrelevant in determining whether or not a particular case merits, or requires, a police investigation. In terms of justice, it doesn’t matter whether the total monetary value of unreported donations amounts to £500, £5,000 or £103,000, what matters is the circumstances which resulted in donation(s) going unreported, as indicated by evidence, and what this indicates as to the likely severity of the offence that may have been committed.

Had Hain failed to report £100,000 of donations to Electoral Commission in similar circumstances to those in which George Osborne has allegedly failed to correctly report £500,000 of donations to his political office then there would be no case fo a police investigation whatsoever – and, for the record I think that the most that Osborne’s situation merits is a mild ‘talking to’ about the importance of clarifying things promptly if one is unsure how to interpret the regulations – while if there were evidence to suggest that he, or any other candidate, had deliberately sought to conceal a single donation of even the minimum registrable value the I would consider a police investigation to be an absolute necessity.

Hain’s attitude towards the law is, similarly, immaterial except in so far as his comments may have some bearing on his ability to mount a successful defence on the basic of having taken all reasonable steps to ensure compliance and to have acted with due diligence, matters in which first impressions created by his remarks are not good. Much as the mere fact of the sums involved are no basis, on their own, for justifying a referral to the police for investigation neither is his general attitude towards either the law or the Electoral Commission – so far as I’m aware, possession of an arrogant and vainglorious attitude, with or without an accompanying ‘perma-tan’ are not yet criminal offences nor should they ever be, despite the all-too-enticing prospect of seeing the likes of Peter Stringfellow and a plethora of Z-list s’lebs and ex-reality show contestants being carted off to the Scrub’s were such a law enacted.

What actually justifies the Electoral Commission’s decision to refer Hain to the police for investigation is what has emerged regarding the involvement of a hastily contrived ‘think tank’, the Public Policy Forum, in filtering donations into his campaign, not because this is illegal in itself (it isn’t) but because taken together with the non-reporting of donations it creates enough reasonable suspicion to warrant an investigation in order to establish whether there may have been an effort to conceal donations from the public records and the extent to which Hain may, or may not, have personally known or been involved in such a practice if, indeed, there is evidence to show that that is what occurred.

While harbouring no sympathy for Hain in his current predicament, which was entirely avoidable, what I find rather disturbing is the extent to which comments, such as those of Nick Robinson, appear to allude to the possibility of, shall we say, inconsistencies in attitude and approach within the Electoral Commission in terms of when, how and in what circumstances they elect to use the powers open to them.

The impression being created, which may easily be false and the sole product of journalists ‘editorialising’ the reporting of this story, is one which hints that the decision to refer Hain’s case to the police may be, in part, predicated on ‘small-p’ political considerations. In other words that the Electoral Commission have acted as they have out of a perceived desire to be seen to visibly taking action in order to bolster their credibility as regulator, an implication which, if true, would lend their actions something of the character of looking for a ‘show’ trial as a means of self-justification.

One would hope that this is no more than a media-generated fiction but, at the same, one ought to make some effort to be sure that such considerations are not creeping in and colouring the Commission’s judgement, which is why, last night, I issued a very specific request for information to the Electoral Commission in regards to three, specific, recorded donations to a major political figure – the Shadow Foreign Secretary, William Hague MP.

Let me explain what I’m up to here.

In the first instance, one thing I have noticed in regards to the information provided by the Electoral Commission in its public registers is that, relative to the Parliamentary registers of members’ interests, the Commission’s registers omit an important – and given the subject at hand – very pertinant piece of information. Unlike the parliamentary registers, those provided by the Electoral Commission disclose only the date(s) on which donations are accepted by regulated donees and political parties but not the date(s) which those donations were reported to the Commission.

So far as public transparency is concerned this is significant omission as, unless one catches an individual or party ‘in the act’ of failing to register a donation – i.e. one uncovers a donation that has not be registered in due time before the recipient is able to ‘clean’ things up retrospectively by making an unnoticed late submission, then one has no means of checking either whether politicians and parties are generally complying with their legal obligations or whether the Commission is functioning adequately as a regulatory body.

In short, without this information being placed in the public domain one has no way of verifying whether the Commission is doing its job on a day-to-day basis and doing it in a consistent and just manner (i.e. applying the regulations evenly across all parties and politicians).

Now what I know for a fact, and can evidence, is that at the end of October there were three overseas visits for which donations of flights should have been registered by William Hague which appeared, correctly, in his register entry in parliament but not on his register entry with the Electoral Commission and that in each case, the registration of these donations was overdue, in one instance by more than a year.  Checking back, this week, what I find is that these flights do now appear where they should, on both registers.

This presents two possibilities. Either the Electoral Commission was at fault, back in October, and had failed to maintain their online registers in a proper and correct state, or the flights were not registered as they should have been and have only been registered since last October, in which case they were registered late and Hague, strictly speaking, has broken the precise same law under which Hain is now being investigated.

In the first instance, therefore, I have requested under FOIA, that the Electoral Commission, confirm the exact dates on which these flights were actually registered with them and, from there, what intend to do if it is confirmed that these were late registrations, is make further FOIA requests in order to ascertain precisely what information passed between the Commission and William Hague in terms of explanations as to why these donations were not recorded in due time and, equally, what action, if any, the Commission has taken – or not taken – to address this situation.

I should say that, before I get the usual ‘pathetic’ appellation from Iain Dale that, notwithstanding other questions about whether the value of these flights is correctly recorded – this being a matter on which the Commission needs to take a view – I have no doubt that any error in reporting on Hague’s part that may be revealed will prove to be precisely that – a genuine error for which there is a reasonable and plausible explanation. (Hague, it should be said, does have previous form for being so busy with his various ‘careers’ that interests that should have been registered promptly have slipped through the net but in no sense did these past issues hint at any sense of impropriety).

What is of more concern is whether, in tracing these donations, what emerges is evidence that the Electoral Commission is, in effect, acting against the principle of public transparency by treating any late registrations that are not brought to the public’s attention by the media (or bloggers) as, in essence, a private matter between the Commission and the individual or party in question.

What is at issue here is not the Hague personal honesty or integrity but the honesty,  integrity and transparency of the regulatory process – in short, if it shown that late registrations are being dealt with without the material facts of the lateness being made a matter of public record then the claim that publication of these registers provides public transparency is entirely meaningless as, unless a politician or party is actually caught ‘in the act’ there is no means of verifying that they are complying with the law or that the Electoral Commission is discharging its duties as regulator.

As soo as I get a response to my first FOIA request, I’ll be sure to let know what the Commission has to say.

  • Not to be nitpicky, but it is exactly two orders of magnitude greater than any known prior case, isn’t it? (Harriet Harman:

  • Mick Davies

    Good to have you back

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  • Has there never been a case of late reporting over

  • Back to the case in hand. First, I noticed that the amount in BBC captions etc suddenly got inflated from

  • Gaz

    Remember everyone, that Chris Paul is a well known Labour shill who haunts the Blogosphere with improving tractor production numbers in upper east eurasia.

  • Cheers Gaz

  • The easy way to think of the Hain case is to ask what would happen to somebody who did something similar in industry.

    For example, if somebody tried to get themselves promoted by using illicit funds from made-up front companies, what would happen? Obviously, they would be out the door without their feet touching the ground, quite possibly straight into the back of a police van.

    Arguing that involving the police is somehow ‘disproportionate’ shows just how different the political class regards itself from the ordinary man. The ordinary person would easily be dismissed for ‘as little’ as

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  • Chris:

    I think the point with Osborne is that PPERA is unclear, to say the least, on how such donations should be handled, and while he should, arguably, have posed the relevant questions much sooner in order to clarify how they should be recorded one might also reasonably argue that the Electoral Commission has been remiss in not issuing clear guidance on the subject – I find it difficult to think that this kind if thing hasn’t arisen before.

  • Sanbikinoraion:

    Three, if one uses Wendy Alexander’s

  • Chris:

    On the Osborne issue, lets look at two different scenarios.

    In the first, which is what happened, the Tories received donations under specific instructions that they should be used to fund Osborne’s political office as Shadow Chancellor. These, as it seems, are declarable donations under PPERA.

    In the second, the Tories just receive a bunch of donations for unspecified purposes and decide for themselves that the best use of the funds would lie in using them to fund Osborne’s political office as Shadow Chancellor, which is hardly an unreasonable decision for a party that needs to convince the public of its capacity to effectively run the economy come the next election.

    Would these still be declarable donations under PPERA?

    In terms of them going to Tory Central Office, yes – obviously – but in terms of the monies being spent on Osborne’s office, well then I’m not entirely sure that they would, although I could comfortably argue that the expenditure should appear in the Tory’s end of year accounts as a distinct line item (funding for Shadow Chancellor’s office).

    This is where it all gets rather grey and uncertain because the rules, such as they are, are very unclear in places and wide open to interpretation.

  • Would it be possible to please ask you a few questions about your opinions of Peter Hain and about his ‘forgotten’ declarations for a university project I am currently doing?