The Elections Bill has been subject to both criticism and praise, and Brunel University London's Professor of Political Science Prof Justin Fisher argues that it has several good proposals, but that more thought about certain aspects is required. He penned this blog post for The Constitution Unit, reproduced here with permission.
Of all the provisions in the Elections Bill, most attention has been paid to plans to introduce voter identification and greater political control of the Electoral Commission. Those provisions are obviously important, but the bill also includes significant proposals relating to notional expenditure and ‘third parties’ – organisations that campaign in elections but do not themselves field candidates. Some of these proposals, while ostensibly positive and well intentioned, have the potential to significantly affect the conduct of elections if they emerge from the scrutiny process unchanged. Others represent a disproportionate response, which are likely to lead to difficulties.
Notional Expenditure
Notional expenditure refers to campaign spending in and around constituencies which does not promote any particular candidate. Such spending is typically ascribed to the party at national level rather than the candidate at constituency-level. It is a by-product of the fact that there are different expenditure limits for candidates and for parties, and that under our electoral system, all parties target their campaign activity as far as possible on seats that they are seeking to gain or hold. Critics argue that candidate spending limits are rendered meaningless by parties’ targeting efforts, and matters came to a head at the 2015 election when in one seat, the candidate, his agent and a Conservative Party official were charged following allegations that campaign spending had not been properly declared. The candidate and agent were acquitted, but the party official was found guilty. The bill adopts a conservative approach to the issue but a sensible and most importantly, a workable one.
Notional expenditure is not a new concern, however. It has been an issue since the early 1950s. In the general elections of 1950 and 1951, there was controversy over a poster campaign opposing Labour’s policies (1950) and an advert in The Times doing likewise (1951). In both cases, it was argued that these contravened the legislation that no expenditure should be incurred to procure the election of a candidate unless authorised by the candidate’s electoral agent. The 1951 case came to court in 1952 and The Times was acquitted on the grounds that the advertisement was general propaganda and did not assist a particular candidate. The implication of this ruling was that posters and newspaper advertisements (and indeed any other form of advertisements) where a candidate was not named did not count as candidate spending. This meant, for example, that parties were free to concentrate the placement of billboards in seats they were targeting.
Over the last 30 years, developments in technology have become such that the boundaries between national and constituency-level spending have become increasingly indistinct. All parties have developed facilities for telephone voter identification, direct mail and more recently, social media promotion via platforms like Facebook. The focus of this activity is typically in parties’ target seats, but critically, the purpose is not to promote a particular candidate, but to promote the party and its efforts to address those voters’ principal concerns, deeming the activity as party expenditure. National party figures also tend to focus their election tours on particular seats and since the 1970s, these have been generally focused on target seats. In addition, party volunteers often descend on target seats to assist with campaigns. Associated expenditure (typically travel) counts as party expenditure rather than candidate expenditure.
As a consequence of these developments, the national-level party campaign has been effectively subsumed into supporting constituency-level activities, and as a result, the distinctions between expenditure on national-level and constituency-level campaigns have become increasingly blurred. For these reasons, various reforms have been proposed such as reducing expenditure limits for parties, harmonising regulated spending periods, apportioning party spending on direct mail, etc. to candidates, and removing the distinction between party and candidate spending altogether. But in each case, the downsides significantly outweigh the potential benefits.
Party spending limits have already been reduced significantly in real terms – the limits introduced by the Political Parties, Elections and Referendums Act 2000 have never been adjusted for inflation. Not only that, reducing what parties could spend on campaigning would be likely to have a detrimental impact on political engagement, since campaigning encourages political involvement.
The case for harmonising regulated spending periods rests on the argument that while candidate spending is regulated for some four months before an election, that of parties is regulated for 12 months. As a consequence, parties can promote candidates freely in the eight months before the cap on candidate spending begins. But, while national-level parties have professional compliance staff, the same is rarely true at constituency level, where most workers are volunteers. At the 2019 election, for example, some 84% of electoral agents from the six major parties (who are responsible for constituency campaign spending) were volunteers. Harmonising the regulated period to 365 days would extend the period of legal liability of largely volunteer agents beyond what would be reasonable, and the likely result would be a significant fall in the number of volunteers wishing to be agents.
Apportioning expenditure sounds straightforward but it’s not. Regional or local newspapers carrying party adverts frequently cut across constituency boundaries, while billboards can be seen by anyone walking or driving past. It would be near impossible to apportion such expenditure to a candidate accurately. Direct mail, telephone calls and Facebook advertisements may be easier to apportion, but such a move would effectively centralise all constituency-level spending, since in order to comply, the centre would need to control both national-level and constituency-level expenditure, meaning that spending would be even more concentrated in parties’ target seats than is already the case.
For these reasons, the bill’s proposal to maintain the status quo with some tweaks to improve transparency is welcome. The status quo is by no means perfect and some blurring between the boundaries of party and candidate spending will continue. But the other options are worse – either enfeebling parties’ campaigns, creating significant barriers to entry for volunteers, or centralising all decisions about campaign spending. However, there are aspects of the proposal that require further thought.
First, the intent in respect of spending is demonstrated by the phrase ‘…directed, authorised or encouraged by [the candidate or candidate’s electoral agent]’. This is too vague as there may be no proof that could be offered that such encouragement took place. The only workable solution is to rely solely on written declarations throughout (capturing direction or authorisation), such that there is a clear documentary trail. Electoral agents put themselves into positions of vulnerability when they take on the role, and should not be exposed to greater risk with unspecified notions of encouragement.
Second, there needs to be a clearer statement in respect of the identity of the responsible person in a political party in terms of the authorisation of spending that may be ascribed to a party or to a candidate. The naming of a responsible person in the party would protect party staff from the possibility that blame could be passed either to a member of staff or to the election agent. Such a move would be consistent with the appointment of a responsible person for accepting party donations.
To avoid disputes about the level of spending allocated to candidates and the responsibility in the case of any violation of the rules, a clear documentary trail and identification of responsible persons at party level is necessary. The bill takes a sensible approach on notional expenditure, but it requires some tightening to clearly identify responsibility.
Political Finance and Third Parties
There are two key provisions in respect of third parties. Both appear to be sound at first sight, but if unamended, both present significant problems. The proposed ban on registering as both a political party and a third-party campaigner looks like a logical step to close an unexpected loophole. It also prevents spending limits being artificially inflated through the combination of third party and political party spending. However, there is a danger that this provision may unfairly disadvantage third parties. It is quite conceivable that a third party may run a national-level campaign (perhaps on saving hospitals), but field candidates in isolated seats, where there is a particular local issue (perhaps a specific local hospital under threat). In effect, the third party and the political party would be fighting the same campaign, but under this proposal, would have to separate themselves artificially.
It is quite appropriate to seek to prevent the artificial inflation of spending limits by combining political party and third-party limits, but this proposal as is stands represents a disproportionate response. The problem that the bill seeks to resolve is by no means widespread. Since 2014, there has been only one instance of an organisation registering as both a political party and a non-party campaigner (at the 2019 general election). Of course, it is appropriate to take a proactive stance in order to avoid future problems, but at present, the potential downsides of such a provision heavily outweigh the problem. One possible solution would be to permit dual registration but restrict the number of seats in which a dual registered party could field candidates.
The second provision concerns restrictions on coordinated spending between parties and third parties. The logic of this proposal is sound and again, seeks to guard against artificial inflation of spending limits. However, the existing comparable legislation on coordination – the so-called Working Together rules as they apply in referendums – is not fit for purpose. This was tested at the 2016 referendum and caused considerable difficulties to both designated campaigns (analogous to political parties) and registered campaigners (analogous to third-parties).
We conducted a study of perceptions of the administration of the referendum and efficacy of the regulations amongst permitted participants soon after it took place. We found that the legislation on Working Together was very poorly understood – some 56% of campaign participants found the rules difficult to understand, compared with only 12% who found the process of recording and reporting donations difficult. The rules were so complex that campaigners effectively divorced themselves artificially from like-minded groups to avoid any charge of potential coordination. 42% decided not to work together after initially considering the option. Participants also reported difficulties whereby one participant complied with coordination declarations while another did not It was unclear, which participant was to blame in such circumstances.
In short, while this provision in the bill is well-intentioned, a fuller examination is needed to ensure the problems demonstrated in 2016 are not replicated. Given the regularity of elections, there is a real danger that the difficulties observed in 2016 could be amplified, with uncertainty piled upon uncertainty. Confidence in elections – which the bill seeks to enhance – would not be increased if campaigners inadvertently found themselves subject to investigation. It would be far better to withdraw this provision from the bill and undertake a thorough re-examination of coordination rules for both elections and referendums before bringing any proposals back to parliament.
The bill, then, does contains some positives – a workable approach to notional spending and a desire to avoid spending limits being artificially inflated. But in each case, there needs to be further examination in order to avoid creating greater problems than currently exist.
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