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.