Q. What is electoral law and what is “Undue Influence”? Surely politicians cheat and lie all the time?
Electoral law is the body of legislation and case law which exists to ensure safe running of the UK’s democratic processes – elections and referendums. It governs not only the logistics of voting, the counting of votes and campaign spending, but also the rules governing campaigning conduct. Its purpose is to assure the integrity of elections and referendums, and it lies at the heart of safeguarding the UK’s system of parliamentary democracy.
Whilst the behaviour of some politicians may sometimes fall short of the public service standards displayed by others, the day-to-day business of MP’s is not regulated under Electoral Law. However, when it comes to deciding who should represent and govern the country, and major decisions about the country’s future, specific legislation exists to ensure that a free and fair democratic process is upheld.
In Electoral Law, “Undue Influence” is a corrupt campaigning practice, as is bribery or intimidation of voters, all listed offences within the Representation of the People Act 1983 which forms part of the body of legislation applied to the EU Referendum campaign by the Referendum legislation. http://www.legislation.gov.uk/ukpga/1983/2/contents
Undue Influence includes the use of “fraudulent devices” or “contrivances” (eg. trickery). The specific nature of what constitutes a fraudulent device or contrivance is determined largely in electoral case law most notably the case of R v Rowe ex parte Mainwaring  1 WLR 1059. Mainwaring was substantially updated by legislation in 2006 by provisions which made it an offence to attempt to use a fraudulent device or contrivance.
Q. So what are the allegations?
The allegations referred to the DPP involve six separate grounds of Undue Influence by the Vote Leave and Leave.EU campaigns. Some of the evidence submitted includes:
- Continued reference to the EU costing £350 million pounds per week, despite this figure having been discredited by the Office for National Statistics
- High profile claims that “Turkey Is Joining the EU” shortly
- Misrepresentation of businesses and individuals as supporting Leave, such as Nissan and Unilever, and politicians such as SNP MP Stephen Gethins and Green Party leader Caroline Lucas
- Claims that “the UK has no border controls whilst in the EU”, despite the UK spending nearly £2bn per year on border controls and immigration
Both campaigns were authorised by the Electoral Commission as ‘permitted participants’. Vote Leave was the officially designated lead campaign for Leave.
Q. But isn’t lying and offering cheap promises all just part of normal political campaigning?
Elections tend to involve claims by candidates about what they will do if elected, or outcomes they will try to achieve. However well intended (or not) such promises might be, they typically amount to claims only about what the candidate will do or try to do in the future. They remain opinion and indeed cannot become fact until they happen. Only history and a future ballot box may therefore judge the integrity of such claims.
However, where a candidate sets out to assert an existing fact, something on which their campaign rests, insofar as it is possible the campaign must not seek to deliberately mislead or deceive the voter by stating something which is knowingly false.
In election campaigning, statements of fact might relate for example to a problem the candidate is pledging to address, or information which may be damaging to another candidate. If knowingly false statements are made, the campaign may be considered to have used Undue Influence to impede or alter the free will of the voter. The relevant election case law surrounding false statements is Mainwaring as updated in 2006.
Whilst referendum campaigns might also speculate about the future, because they do not involve an election of leadership or the making of manifesto pledges, by their nature they may tend to place more reliance on claims of existing fact than election campaigns.
In considering evidence of wrongdoing by the EU referendum campaigns, the following key tests were used:
- Claims presented as fact without caveat, being material to the campaign
- Claims widely spread or repeated during the official campaigning period
- Claims which, despite being repeatedly challenged as false or misleading, continued to be made despite being untruthful beyond reasonable doubt
The following extract from Oxford Dictionaries provides some potentially useful reference definitions:
Q. Surely any offences should have been dealt with during the referendum? The people already voted for Brexit, why bring this up after the result?
The Electoral Commission is the public body responsible for vetting and authorising campaign participants, providing guidance to those involved, and handling the voting and counting processes. Whilst they have a role in monitoring campaign spending, they have no powers to police campaigning or enforce rules over campaign conduct, or even an ability to refer potential conduct concerns for investigation.
In elections, where allegations of conduct offences are made, the complainant (who must be of standing) can apply afterwards via an ‘Election Petition’ for an Election Court hearing which is a quasi-criminal court proceeding. The legislation provides for any breaches to be dealt with, and depending on the severity of any offence upheld the Election Court may order candidates to be disqualified or the election to be set aside or ‘voided’, as well as potential prosecution and criminal sanctions of those involved.
For local referendums (such as those relating to local plans), the responsibility for control rests with the Electoral Commission. However the EU Referendum was special. The legislation made the mounting of an Election Petition very difficult; such a Petition could only be brought on limited grounds and within a very short timescale. However the ordinary elections offences (such as undue influence) were deemed applicable to the Referendum Campaigns and the responsibility to investigate alleged offences and to initiate potential prosecution in the public interest rests with the Director of Public Prosecutions. Any individual registered to vote or affected by the referendum result in theory has standing to raise a challenge, though the burden of proof that offences have been committed is a high one.
Our group – Restoring Integrity to Democracy – believes that the Leave campaigns deliberately sought to exert Undue Influence by making knowingly false statements and indeed use of other fraudulent devices to trick voters. It is therefore asking the DPP to further investigate and, if appropriate, to prosecute those responsible. The purpose of our action is therefore to safeguard the UK’s democratic process – in the public interest – and dissuade similar corrupt practices in future by demonstrating that examples of seriously unlawful conduct will be fully held to account.
In the case of the EU Referendum, the legislation itself omitted any provision for the referendum result to be set aside or voided, irrespective of the severity of any offences committed. It is understood that this is because the referendum was purely consultative, and with the result being non-binding the duty falls to parliament to consider any such offences in deciding whether to treat the result as democratically safe.
Q. Who’s behind this group “Restoring integrity”? Isn’t is just a bunch of rich corporations or Remain bad losers? Both sides were surely just as bad as the other so why aren’t the Remain campaign lies also being referred?
Two separate groups independently started compiling evidence under grounds of Undue Influence immediately after referendum campaigning ended, each consisting entirely of private citizens though many with a background in law. The groups decided to join together under the name “Restoring Integrity to Our Democracy” in order to submit evidence to the DPP. They include the UK’s leading academic expert on electoral law, Professor bob Watt.
The motivation of the merged group is to seek to restore integrity to the UK’s democratic process by upholding electoral law in relation to corrupt campaigning practices during the referendum which it believes seriously marred the democratic process and led to deepening of divisions within the public. It asserts that a properly conducted referendum should help bring to people together who were previously divided in their views, with the losing side having to accept the result, but that the EU referendum has achieved the opposite.
Restoring Integrity reviewed a variety of complaints about the Remain campaign, Stronger In, for example the suggestion that an ‘Austerity Budget’ might be necessary in the event of a Leave result. Of the topics reviewed to date, it has been concluded that the claims would be unlikely to meet any test as a statement of fact, and fall well short of the group’s own key tests in preparing evidence (as set out above). Notwithstanding, it should be noted that this group’s action does not preclude separate action by any other party.
Numerous other ‘Leave’ campaign topics were also rejected for similar reasons.
Q. Who is the Director of Public Prosecutions? What will happen next?
The Director of Public Prosecutions heads the Crown Prosecution Service in England and Wales. The current DPP is Alison Saunders CB.
When information is given to the Director that an election offence has occurred, it is her duty under section 181 of the Representation of the People Act 1983 to make such inquiries and institute such proceedings as the circumstances appear to require.
If the primary information indicates that an election offence may have been committed police enquiries will normally be requested. Those enquiries will normally be confined to the taking of statements from the complainant and the returning officer and an interview with the alleged offender.
The jurisdictional role of the DPP role is somewhat unclear in the legislation, therefore the complaint has also been referred to the Northern Ireland DPP and Lord Advocate in Scotland.
Under the legislation, the DPP has one year from the date of the referendum to bring a prosecution, and is able to apply for this to be extended by one year.
Q. Is ‘Restoring Integrity’ seeking funding, or indeed any other form of support?
A number of people have contacted us to query whether this action requires funding. The simple answer, at least for the time being, is no.
All work undertaken to date by the group in gathering and reviewing evidence, in preparing the submission to the DPP, and supporting media queries has been undertaken by individual citizens acting in the public interest.
Fundamentally, our action relies on and places its trust in the DPP, Alison Saunders CB, to fulfil her public interest duties to investigate wrongdoing and prosecute where appropriate, as per the Representation of the People Act 1983.
For these reasons, private funding or crowd funding is not at this time expected to be needed. But never say never..!
In the meantime, the best way to support the case is to share information and updates on Twitter, Facebook etc, and to remind your MP why it is also their duty to offer their public support to the DPP in the interests of safeguarding the UK’s democratic processes. Not just for our generation but also for those to follow.