If a statutory body gives advice which turns out not only to be wrong, but to put those acting on said advice in breach of the law, should the burden of guilt shift to the regulator?
What at first glance looks like a rather out-there hypothetical scenario for jurists and legal philosophers is now a very real question facing Parliament following today’s High Court judgement against the Electoral Commission.
Matthew Elliott has set the case out in some detail over on Brexit Central, and it’s well worth reading, but the short version is that a court has ruled that Vote Leave’s donation to BeLeave should have been (double) counted as a Vote Leave election expense, despite written guidance from the Commission that this was not the case.
As a result, Vote Leave is deemed to have broken the law – and as this new breach doesn’t require there to have been a ‘common plan’ with BeLeave about how the money would be spent, it has also pulled the rug out from under Vote Leave’s appeal against the Commission’s original case to boot.
Elliott has already sketched out the potentially serious impact this will have on the future conduct of campaigns, but even before then this judgement surely invites or even demands a wholesale re-examination of the spending of every participant in the campaign in light of the law as it is now understood. Parliament will also almost certainly have to legislate to bring the law back into line with what people thought it was.
Set all that aside, however, and you are left with a simple fact which my colleague Mark Wallace has written of previously: that the Electoral Commission is straightforwardly not fit for purpose. On top of all its previous failings and mounting perceptions of political bias, it now appears to have had so little grasp of the law it was supposed to be enforcing that its advice put one of the participants in breach of the law.
One point offers a stark illustration of just how wrong the Commission got it: the court seems to have decided that following its advice was not enough to protect Vote Leave under the ‘Principle of Strict Interpretation of Penal Legislation’. This holds that, in cases where the law is unclear, a defendant deemed to have interpreted it reasonably ought to be exonerated.
By finding Vote Leave guilty the High Court is effectively saying that their actions – and by extension, the Commission’s advice on the same – cannot even be considered a reasonable (if wrong) interpretation the relevant legislation. Either party might dispute this, but as it stands it seems a damning indictment of the Commission, whose express purpose it is to uphold electoral law and guide those it regulates.
This is a matter of immediate concern because in their interim report on ‘fake news’ the Digital, Culture, Media, and Sport Select Committee have called for the Commission’s power to be substantially expanded. New powers would include: abolition of the current £20,000 cap on fines; authority over all electronic campaigning; reducing the time by which spending returns can be handed to the Commission; and the ability to compel organisations it doesn’t specifically regulate to hand over evidence relevant to its inquiries.
For an umpire to perform their function, they must command the confidence of both sides with regards to both their impartiality and their competence. At present, the Electoral Commission does neither. If it is to be fit for the powers it presently wields, yet alone those the DCMS Committee propose to grant it, it needs a swift and serious overhaul.