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9 June 2016updated 27 Jul 2021 12:10pm

The election fraud allegations – and how they expose our broken campaign spending rules

As Labour is dragged in to the battle of the battle buses, is it time to question the law on election spending?

By Anoosh Chakelian

The Tories are in trouble for their election spending. And they’re trying to drag the other parties down with them.

At least 16 police forces are beginning to investigate claims about undeclared accommodation and travel expenses in individual constituencies, and the allegations that over 20 Conservative MPs may have benefited from “battle buses” that bussed in activists to help on their local campaigns.

The key contention is whether the money spent on battle bus campaigning should have been declared locally. The party classed it as national spending. But police forces are examining whether it should be counted as illegal overspending on local campaigns, particularly in marginal seats.

Another problem is that all parties use battle buses (even the Greens, although their one is run on chip fat – they nearly struggled to source enough of it last year). And all parties file the costs as national expenses. So the Tories want the Electoral Commission to look at Labour, SNP, and Lib Dem use of buses too.

There are two separate spending limits for general election campaigns: one for national campaign expenses, and one for each individual constituency (which is much tighter).

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The limit for national campaigns is £19m. The Tories spent £15.6m (even if you add the receipts totalling just under £40,000 the party has admitted it failed to declare, the figure still reaches nowhere near the limit). The limit for candidate spending on individual constituency campaigns varies depending on how many people vote in the seat. The Electoral Commission sets the rules out:

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The Tories have been accused of trying to get around these limits by saying their battle bus activists were solely part of the national campaign. And they are accusing Labour of doing the same thing, with its “Labour Express” and “pink bus” campaigns. Some in Westminster suggest that Labour has been so quiet on the Tory election expenses allegations because it doesn’t want any close scrutiny of its own spending.

The Electoral Commission is considering the contents of a letter it has been sent by the Tory MP Charles Walker regarding Labour’s use of battle buses. But the Electoral Commission only has oversight over regulating national campaign spending – any potential breaches in local spending rules are for the police to investigate.

So any disqualifications of MPs and ensuing by-elections in the constituencies accused of overspending would be triggered by police investigations, not the Electoral Commission. This is just one of the UK’s many nonsensical election spending rules.

The Electoral Commission has been calling since 2013 for the power to regulate candidate spending. Its director of party and election finance, Bob Posner, commented earlier this year:

“The Electoral Commission has called again today for greater fairness and clarity around the current regulatory framework for candidates at elections. The law currently stops short of giving the Commission the power to enforce candidates’ spending rules and only the police can investigate if there’s a problem. It’s time to end that anomaly and give us the power to investigate and sanction.”

As the legal commentator David Allen Green writes in his excellent piece on the Tory spending scandal in the Financial Times:

“The present UK law on electoral expenses is a mess. There is, of course, no good or sensible reason to have a system where the national and local parties are investigated under separate laws, by separate bodies with separate legal consequences. This is especially true when the outcomes of general elections will in practice be determined by what happens in marginal constituencies. In reality, the campaign in the marginal constituencies is often determinative of the national campaign, and it is artificial to pretend otherwise. The current split national/local regime means there are things which will fall in the gap, and no doubt the party organisations know this.”

There are two ways to tackle this. Either we should give the Electoral Commission power to oversee local campaign spending, or change the system completely. The stringency and complexity of the UK’s election spending rules makes a stark contrast with the US, for example. Though the vast amount of money sloshing around US elections brings its own problems, it must be time to change something in the British rules when politicians are attempting to navigate a system that forces them to spend less than half per vote than what they did, in inflation-adjusted terms, at one point in the 19th century.

As Allen Green points out, whatever the outcome of the current investigations, “election law must be reformed to take account of the realities of political campaigning”. This reform would need to address how a party’s overall spending affects the marginal seats it is targeting, therefore diluting the distinction between national and local campaigning.

Appetite for such a change may be difficult to ignore if the alleged facts about the Tories’ campaign spending are proved right, but bring no legal consequences. As one Tory MP told the FT: “Everyone knows that election expenses are a work of fiction . . . You can drive a coach and horses through the loophole.”