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11 May 2018updated 01 Aug 2021 12:26pm

The Electoral Commission isn’t a “Blairite swamp” – but Leave.EU is right about one thing

The watchdog has a problem – but it’s one of weakness rather than influence.

By Anoosh Chakelian

The pro-Brexit campaign group Leave.EU has been fined £70,000 for breaches of election law in the EU referendum.

An investigation by the Electoral Commission has found that the group, co-founded by Ukip donor Arron Banks, incorrectly reported what it spent during the campaign – exceeding the legal limit by filing inaccurate and incomplete returns.

The conservative sum of its overspend is £77,380 (10 per cent over the limit for non-party registered campaign groups), but the Commission says “the unlawful over-spend may well have been considerably higher than that”. It cites the US campaign strategy firm Goddard Gunster being omitted from its returns, despite finding that Leave.EU used its services in the build-up to the referendum.

Leave.EU disputes the Electoral Commission’s findings in full and will be appealing against its decision. Banks calls the regulator a “Blairite Swamp Creation”, and its decision a “politically motivated attack on Brexit”. He says the body is made up of “Remoaners”, and his website even lists each member with their political credentials.

But anyone who follows the work of the Electoral Commission (yep, I know how to have fun) can see it doesn’t exactly discriminate politically – the Tories, Labour, Greens, Lib Dems, and even the Women’s Equality Party have come under investigation for 2017 general election spending.

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And in terms of Brexit, the pro-Remain campaign group Best for Britain is also being looked into for its spending last year, and Britain Stronger in Europe came under investigation after the referendum campaign (along with Vote Leave).

Bias isn’t the problem here, but there is a problem. It’s less an issue of the Electoral Commission’s power than its weakness. After all, Leave.EU is only being fined £70,000, which isn’t a lot really in election spending terms (in context, the official Brexit campaign Vote Leave’s spending limit was £7m).

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Although the Electoral Commission found “no evidence that Leave.EU received donations or paid-for services from Cambridge Analytica for its referendum campaigning”, the intention was clear from those trying to link the two: to make people believe the Brexit result is illegitimate. And that’s also the intention of highlighting its over-spending.

But this argument doesn’t work unless you accuse everyone else of “cheating” too. Modern campaigning just cannot be bound by our archaic election spending laws.

The rules don’t cover online campaigning in any depth, for example, other than requiring you to file invoices from Facebook or Twitter as you would from every other service used. They don’t have any way of monitoring social media content, only able to track how much is spent overall on traditional, paid-for advertisements online.

Though the Electoral Commission has called for more powers to regulate online campaigning for years, its remit hasn’t been updated.

There are so many ways of getting around spending rules – especially the completely arbitrary divide between overall national spending and individual constituency campaign budgets in a general election – and social media has made it even harder to follow them.

Also, parties and campaign groups can only be investigated by the Electoral Commission for their activity during the regulated period before polling day. This limits its scope. Remember David Cameron spending £9m of taxpayer’s money on pro-EU leaflets to every home in the country? That was allowed, because it was before the regulated period.

Brexiteers would also point out that, by virtue of the entire machinery of government being pro-Remain (the governing party at the time of the referendum was run by a pro-Remain prime minister, after all), the Remainers had a distinct financial advantage outside of any election spending legal framework.

So Leave.EU is right to complain about the Electoral Commission, but it’s doing so for all the wrong reasons. It’s the watchdog’s weakness that has it in this position, rather than its perceived shady establishment influence.