The CPS decision doesn’t prove the Tories ‘did nothing wrong’, it proves our electoral law is broken

Last week, the Crown Prosecution Service announced that it would not be pressing charges against the candidates or agents investigated in connection with the 2015 election expenses scandal. The allegations concerned inaccurate spending returns that were submitted by candidates, specifically the omission of expenses relating to the ‘Battle bus’ from local spending returns. If they had been included it may have taken some candidates over the local spending limit. The CPS’s decision not prosecute was based on the fact that it could not be proved that this was done knowing or dishonestly. The candidates and agents had been advised, incorrectly, by the central party that it was national spending and not local so didn’t need to be included. Other lower level offences were not prosecuted because the CPS decided this was not in the public interest. Contrary to Theresa May’s assertion that this proves that her party ‘did nothing wrong’ it more aptly demonstrates how urgently our electoral laws need reform.

In March this year a report by the Electoral Commission into the Conservative party’s campaign expenses clearly stated that there was wrongdoing. In it, the commission detailed five offences relating to inaccurate election expenses returns. The report concluded that “the Commission is satisfied that a proportion of the reported spending was candidate campaign spending and should not have been included in the Party’s return” and fined the party the maximum of £20,000 for this particular offence.

So logically it would follow that there was spending that should have been included in the candidate's return but it was not, and the report alludes to such a fact. But there is absolutely nothing the Electoral Commission can do about that because the Commission does not regulate candidate spending. Unless the evidence against the candidates meet the very high bar for criminal prosecution, in that it can be proved beyond reasonable doubt that they not only that they submitted inaccurate returns but that they did so on purpose, they get off scot-free. This disjointed and illogical approach means that candidates can easily escape the consequences of fluffing their election expenses, giving all a green light to do so in future. The Electoral Commission needs to the power to fine candidates as well as parties.

The distinction between candidate and national spending has long been recognised as a grey area that parties could exploit to get around the spending rules, and gain financial advantage over their opponents. In this electoral cycle the Tories have spent tens of thousands of pounds on wraparound adverts in the local papers of target seats. Despite clearly targeting voters in specific constituencies because these ads don’t mention the local candidates by name they can get away with allocating this as entirely national spending. It’s not just the tories, all parties use these tactics; misallocating the cost of HQ staff working on candidates’ campaigns, campaign leaflets and hotel rooms for activists. Parties are constantly pushing the limits of what can be considered national spending to give their candidates an advantage without exceeding spending limits. All parties are guilty of it, and this in part explains the continuing inaction on reform.

Even when parties are fined by the commission, flouting electoral law is usually cost effective. The Tories had to cough up £70,000 for their wrongdoing but this pales in comparison to the millions spent in the campaign, and even the hundreds of thousands of pounds related to the offense. The problem is widespread; Labour and the Lib Dems have also been fined £20,000 each for breaking electoral law. The Electoral Commission itself has called for larger sanctions that make sense in proportion the huge spending and donations of large campaigners. There is a danger that these paltry fines are seen as a price worth paying to buy a constituency or few.

It’s also worth noting that investigations into the two main parties were prompted by the media. Channel 4 uncovered the scale of Conservative election expense violations and the Labour inquiry was prompted by a journalist who was curious as to the fate of the ‘Ed Stone’. This raises the question of how many more offences go unnoticed. Whilst the media is hugely important in holding the government to account, we should not have to rely on it to identify breaches of electoral law. The Commission now has the power to investigate, but it lacks the resources to do so effectively. The integrity of our elections is of fundamental importance to our democracy, the funding of the commission should reflect this. Public scrutiny is also near impossible. There is no requirement for candidate spending returns to be published online. Anyone wishing to scrutinise constituency election expenses would need to do down to the local council offices and request to inspect the documents. In this sense transparency exists in theory, but not in practice.

British politics remains plagued by the public perception that big money can buy elections, and this case seems to prove that it can, and with impunity. Our electoral laws exist to prevent one candidate having an advantage over the other simply because they are able to raise more money. But right now they aren’t working. Two police investigations remain ongoing; one into South Thanet and the other into former Conservative Party Treasurer, Simon Day. Both cases are arguably stronger than the ‘Battle bus’ case. If yet again there is a failure to prosecute, the total ineffectiveness of electoral law will be plain for all to see.