Head of Regulation Electoral Commission
3 Bunhill Row
London EC1Y 8YZ
Our Ref: ZA4904816 January 2018
Dear Ms Edwards,
Thank you for your letter of 15 January 2018. I appreciate you taking the time to respond to me, but I must voice my serious concerns about your decision to not open an investigation into any of the points that I have highlighted.
Joint spending and co ordination between groups
In response to my concerns about joint campaigning between the various Remain groups, you state that ‘the evidence indicates that the meetings were advisory in nature, focussed on communications’ (my emphasis added) and that you do not deem that there was a common plan. This is in stark contrast to what the Electoral Commission’s own guidance states: ‘In our view, you are very likely to be working together if… you coordinate your regulated campaign activity with another campaigner – for example, if you agree that you should each cover particular areas, arguments or voters
’ (Electoral Commission, Joint Campaigning for non-party campaigners). You will also note that the same guidance makes clear the direct link between ‘working together’ and having a ‘common plan’. With this in mind, I again refer you to the passage from Sir Craig Oliver’s Unleashing Demons
‘I join a 7.30 a.m. cross-party call chaired by Will Straw. It’s designed to catch up with what the In campaigns for the various political parties are doing that day. I want to get across a blunt message :this matters. We failed on immigration yesterday, hardly anyone stuck to our line that we accept it’s a problem, but Leave’s solution of trashing the economy is no way to deal with it.’
It is extremely hard to see how this is not clear evidence that the Remain campaigns were agreeing to, in the words of the Electoral Commission, 'cover particular... arguments' and were coordinating what they said. You do not provide any explanation for why you deem the described actions to be merely ‘advisory’ - this appears to be pure assertion on your part. The above passage reads far more like an instruction and - in any event - demonstrates beyond any reasonable doubt the existence of coordination when it comes tousing detailed, common ‘lines’ which were spelled out by Britain Stronger in Europe to the various Remain campaigns (each of which then presumably spent money publicising this message - coordinated communications activity necessarily involves incurring referendum expenses).
It is near certain that similar early-morning phone calls were made between these groups - and highly probable that more common lines were agreed over the course of the campaign. You also provide no basis for your confidence that these conversations only covered communication. In addition, the allegation made in Tim Shipman’s All Out War that ‘[Britain Stronger inEurope’s] field operation was effectively subcontracted to the Labour Party, since the Tories had little or no presence in the working-class areas which the Brexiteers were targeting’ is, once again, highly suggestive of a ‘common plan’. I would argue that the Electoral Commission has a duty to investigate such allegations thoroughly - and would be failing in its obligations if it were to simply dismiss such concerning assertions after a mere few days of assessment.
What is particularly concerning is that you decided on 20 November 2017 to re open an investigation into Vote Leave Limited and Mr Darren Grimes, in spite of the fact that there is much less evidence of a common plan. As you acknowledge at [25] of the Review of Assessments - ‘there are no direct indications of the campaigners working together’ (myemphasis added) and that - as you state at [31] - that ‘the Commission is not aware of what any such communications [between Vote Leave and Mr Grimes] contained or whether it indicated a common plan or arrangement was in place’. In other words - despite the fact that there is no evidence of Vote Leave Limited or Mr Grimes engaging in joint planning (even of an advisory nature) - you have been persuaded of the need for a full investigation.
However, when clear documented evidence of the Remain campaigns coordinating specific messaging is presented to you, this is dismissed as ‘advisory’. This would appear to be a clear case of double standards.
Spending controls
I am also very concerned by your response to my point about the apparent efforts of Remain campaigns to evade spending controls. You claim that because I have failed to‘provide evidence that the rules may have been broken’ the Electoral Commission will not pursue these matters. This would appear to be not just demanding more exacting requirements than what is needed in legislation, but also another clear case of double standards by the Electoral Commission. Schedule 19B of the Political Parties, Elections and Referendums Act 2000 (as amended) states that the Electoral Commission shall have the power to investigate, if the‘Commission have reasonable grounds to suspect… a person has committed an offence under this Act’. The meaning of ‘reasonable grounds’ - as a concept that is well defined in law - is not something for the Electoral Commission to determine. Your response on 8 January 2018 appears to suggest the Electoral Commission has adopted the position that ‘reasonable grounds’ cannot exist without direct evidence. That is wrong in law - I refer you to pp 1252-1253 of Blackstone's Criminal Practice 2018 which makes clear that ‘reasonable grounds’ can be based, inter alia, on allegations and inference from circumstantial evidence.
In any event, the Electoral Commission’s own track record on what it considers to be ‘reasonable grounds’ can be garnered from its decision on 20 November 2017 to reopen it's investigations into Vote Leave Limited, Be Leave and Veterans for Britain. It is clear that this decision was not based on the production of new evidence. In your Assessment Review, at [27] and [28], you state that (with my emphasis added): ‘the Commission notes it's increased awareness of the significance of digital campaigning as a key technique in the referendum … Given this new information [note, that there is no indication of what this new information was], together taken with the existing evidence, the Commission has considered whether there were inferences that might on investigation be drawn from the evidence obtained that did indicate a plan or arrangement was in place’. At [29] you state ‘It may be possible on investigation to infer from the sequence of events summarised above that there may have been additional communication, verbal or in writing, between Vote Leave and Mr Grimes...This can be inferred’.
The reasoning, in other words, is not based on evidence but only on possibilities and supposition - directly contradicting the Commission’s assertion that an investigation can only follow the production of evidence.
Conclusion
Based on all of the above, I have to conclude that the Electoral Commission appears to have used an extraordinarily low bar – arguably, far too low a bar— when deciding to open your new investigation on Vote Leave and other campaigners for Brexit, yet have set a very high bar when deciding to open an investigation into Britain Stronger in Europe.The matters I have placed before you regarding these Remain campaigns go far beyond ‘inference’. These are matters that I have put to you that are plain, do not require inference, and of which I have now made you fully aware. The concerns raised about Remain groups - including the hasty establishment of groups a month before the referendum, having multiple overlapping donors, daily coordination committees and the subcontracting of the ground campaign - appear to be far more serious than the accusations made against the Leave campaign.
There has, for example, been no accusation of the Vote Leave campaign subcontracting its ground campaign to other organisations. It is very hard to see how the Remain groups that were set up a few weeks before the referendum could not have been part of a common plan. There is, in my view, a clear and compelling case to investigate this, and to make sure that there has been no abuse. Prima facie, therefore, the Electoral Commission’s decision not to open an investigation into a single one of my concerns appears to be - at best - based on an inaccurate understanding of what ‘reasonable grounds’ means in law or - at worst - a deliberate attempt to put more onerous standards on the grounds for starting an investigation on one campaign than the other. Let me be clear - the Electoral Commission has a vital role to play in our public life. At the heart of its role is its well-established reputation for being above the political fray, and conducting itself in a non-partisan fashion. There will be very serious questions asked about the Electoral Commission’s conduct if, in the exercise of its duties, it applies a very low bar to the instigation of investigations for one group, but then demands a much higher bar for the instigation of investigations into another.
Broader questions will also be raised if the Electoral Commission’s decision not to open an investigation is based on a misunderstanding of the law. I invite the Electoral Commission to reassess my complaints in light of the correct understanding of the law and on the need to use common standards for all. I believe that the points that I have raised above call for the immediate opening of investigations on all my points. I would also strongly suggest that it is in the Electoral Commission’s interests to show equity in the exercise of its functions and apply the same standards to both the Remain and Leave campaigns. I look forward to your response.
Yours sincerely,
Rt Hon Priti Pate lMember of Parliament for Witham
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