Zac Goldsmith and election law: what doesn’t count towards your limit?

The allegations made against Zac Goldsmith highlight three areas of electoral law where the law leaves considerable latitude for interpretation and where the usual clarity that comes from an accumulation of case law is missing because of the paucity of cases that have considered the issues.

The first area is the question of reusable materials. If, for example, a local party buys some clipboards they may end up getting used over several elections and also outside of elections for activities such as street stalls. What therefore should the cost be to an individual campaign of using the clipboards? Calculations involving hire costs and depreciation therefore come in to play.

I kid you not: I’ve had discussions with the Electoral Commission in the past about whether there should be depreciation rules for rosettes and if so what they should be. Those discussions quickly get rather daft: how evenly does the colour of a rosette fade over time? Does that mean straight line depreciation rules are  more or less appropriate? What about different colours used by different parties? And so on. Thankfully I (and others) persuaded the Electoral Commission that idiosyncratic detail of this sort would not be helpful, but it does highlight the degree to which agents and candidates have to make their own interpretations of the law.

Another idea the Commission played with is recommending that the full costs should be declared on first time of usage but it’s ‘free’ to use goods in future elections – but that would open up a whole host of loopholes.

The law doesn’t specify the details on this and neither has it been explored very much via test cases. Perhaps not surprisingly, the Electoral Commission has therefore generally steered clear of detailed guidance on how appropriate rental costs should be worked out. Their guidance for the 2010 election even says “… there are no hard and fast rules. Instead, you should follow the guiding principle [that] you should make an honest assessment on the facts”.

It looks as if the Zac Goldsmith case may flesh this out (either via legal precedence if it goes to court or via de facto regulator precedence if it doesn’t), and in particular the question of how do you account for something that you have purchased new before an election but which you say you intend to also use for other elections in future?

The second area is the question of leaflets which are specific to an election but which are not used. Zac Goldsmith’s campaign looks to have left these off the expenses declaration. This is not completely without precedent. For example, following John Smith’s death, many Labour election campaigns had to pulp material which featured the deceased party leader. These unused leaflets did not generally subsequently feature in election expense returns and no legal action was taken over that. That was understandable in the particular tragic circumstances, but anyway as no such case came to court there is no simple test case to point to.

The third area is the question of splitting costs between different campaign limits – potentially between local, constituency and national limits. Some splitting is clearly acceptable and the Electoral Commission’s guidance explicitly says you should do this. But again the question of exactly how you split is largely untested and unspecified. For example, a window poster at a general election that simply says “Vote Party X” can count against Party X’s national expense limit according to the Electoral Commission’s guidance. But what if the poster also says “Vote for Candidate Y”? Do you split the costs based on relative surface area taken up by the two? Or do you split the  costs 50:50. (And, curiously, as an added complication the Goldsmith poster defence appears to be that some costs were split between his return and the local election returns rather than with the national expense limit as per the Electoral Commission’s guidance.)

These areas of legitimate doubt and variations of interpretation do not means there is a free for all where you can do anything. My own advice to people (which has always withstood any subsequent Electoral Commission or police investigation) is often based on the starting point, “Imagine you are in front of a jury, most of whom think politicians are by nature dodgy. Can you reasonably explain what you’ve done to them?” If nothing else, the Zac Goldsmith case should make clearer how to answer that question in future.

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13 Comments

  • D.Z. Bodenberg 17th Jul '10 - 1:59pm

    What I found interesting was that (roughly speaking, I haven’t got the exact figures to hand) if 2,000 leaflets were printed, but only 1,000 were used (or at least when this was claimed), the cost declared was half of the cost of 2,000 leaflets. Cos 1,000 leaflets is the cost of 2,000, right?

    But anyone who has ever had a leaflet printed (or who knows anything about the printing trade, or has ever dealt with printers) knows that it doesn’t work like that. The major costs involved in getting printing jobs are fixed per job and have very little to do with the total print-run. Normally 2,000 leaflets (or 5,000, or 10,000) leaflets would cost only relativlely more than 1,000.

    So the “we only used half so we’re only declaring half the bill” is nonsense, and wrong. Even if they did only use half and bin the rest. Surely they should have to get an official – public – quote for the amount of leaflets used, and put that on the expenses. Even if it is only about 20 quid less than the cost for twice the amount.

    You know what I’m getting at here? As otherwise one might want to artificially inflate print runs in advance in order to then halve / quarter / etc. the bill in order to save on expenses. Not that anyone would do that. And certainly not LibDems either :)

  • What a mess!!!
    Surely, there has to be a better (and more easily manageable) way of ensuring that rich people can’t buy a seat? Surely, constituency parties ought to have better things to do than to think about depreciation of rosettes? I can’t quite believe that testing this in a few legal cases will make these rules workable enough….

    Last time I looked this government had a Deputy Prime Minister whose main portfolio, if I am not mistaken, is to deal with elections and constitutional matters….

    Couldn’t he be prevailed upon to look into this properly, or ask somebody to do so?

  • Paul Griffiths 17th Jul '10 - 2:17pm

    Surely the spirit and intent behind campaign expenditure limits is to try to ensure that wealthy candidates (or their backers) cannot effectively “buy” the election. As no election is won or lost on the basis of how many rosettes the candidate has or how many clipboards are carried by their canvassers, I wonder why the EC cares about these kinds of things. Even most staff and office costs seem tangential. Isn’t it the total cost of communication with voters that really matters, by whatever media – including personalised jackets?

  • Do the following need to be declared:
    1. I use the telephone to canvass support on polling day
    2. I use my car to take elderly voters to vote. I only chose ones thought to be favourable to my candidate and I encourage them to vote for my party.
    3. I provide biscuits and drinks for helpers using my house.
    4. i use my computer to e-mail the local press.
    In none of these cases do I charge the local party.
    Also, I’m surprised candidates were set a limit of only 11k pounds in Richmond. How is this calculated?

  • I would be interested in other interpretations of Fernando’s examples, but I would not list any of these, when activists put in their own use of own equipment for free. In practice, most need a level of reimbursement / use of party equipment, which would, of course, be charged. And, of course, if someone who donates is exceedingly rich, and puts in use of all sorts, you would be a fool not to declare – as Maria says, there should not even be a perception, let alone reality, of buying a seat.

    I am very surprised that Fernando and others keep insisting that £11k is a very low expense limit (this is for 3.5 weeks or so spending – not the total amount spent over months, remember). This doesn’t include purely national spending not promoting the particular candidate. Most constituency parties could not afford to spend these amounts – it is generous.

    As for DZB’s point – yes, that could happen, and if an audit picks up a potential problem in that area, it should be looked at on the facts of the case. EC guidance says you charge “just for those you use”, but sensible guidance would be to include full amounts if you are right on expense limits, otherwise unfavourable conclusions may be drawn!

  • If you have 50,000 A3 leaflets printed in colour both sides it will cost you somewhere in the order of £2000. If you claim that you have only used 20,000 of them then the true cost should be around £920. However, if you divide £2000 by 50k and then multiply by 20k you get £800, and it looks to me that this is what has been done with the Richmond Park expenses. However, much as I would like to see Goldsmith being made an example of, it really is not in the interest of any of the three major parties to bring the subject of election spending by particular candidates to the attention of the authorities because they all know that it is a path that leads to Mutually Assured Destruction.

  • In cases where a leaflet is printed and is subsequently deemed to be in contravention of electoral law, i.e. the ommission of an imprint, the working assumption from my experience is that irrespective of how many leaflets from the run may have been distributed the whole of the cost of the print run is declared. Interesting points made about overinflated print runs reducing the cost per 1,000 leaflets but I’d argue that as an amount had been invoiced and paid in respect of literature printed to secure a candidate’s election then the full amount is declared. Electoral law is very clear that any liability to pay costs in respect of elections should be settled promptly and, in the context of the Goldsmith example, the provisions would cover the cost of the whole bill and not just that which relates to the leaflets distributed. The other two areas of query are non issues, but the leaflet cost is one where I feel Goldmsith may be vulnerable.

  • Apportioning unused leaflets is obviously a difficult question and is complicated further by the new long and short campaign reporting periods.

    The Electoral Commission’s guidance was quite clear that if part of an order was used within the “long” campaign and part during the “short” campaign then the cost should be apportioned pro rata. Presumably the same applies to literature that was partly delivered before the start of the long campaign and part during the long campaign – so that the share of any literature delivered by 31st December 2009 did not need to be declared.

    If that applies at the start of the campaign period then presumably it also applies at the end of the campaign – so that you have to declare the share of leaflets delivered by 6th May but not those that you deliver on 7th May (why you would want to deliver leaflets the day after the count is another question). If you don’t have to declare the share of literature that you deliver after polling day then presumably you don’t need to declare those that you throw away – or deliver to the recycling centre.

    It sounds odd but the limit isn’t really on what you spend – it’s on what you use. This cuts both ways. Obviously it would be wrong to say that you don’t have to declare posters just because you bought them 8 months in advance.

    The Government will also need to review the long campaign spending rules to bring them into line with fixed term parliaments.

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