Lallands Peat Worrier explores Electoral Commission rules

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By Andrew Tickell

And in a single bound, free. The Confederation of British Industry got lucky.  Having accidentally registered as supporters of the No campaign with the Electoral Commission, and created an almighty boorach for themselves, the captains of industry finally got their act together, and wriggled out of it.

While the referendum legislation contains no mechanism to take your name off the Commission’s books, it seems a minor flunky signed the CBI’s registration papers rather that the bigger wig required under the 2013 Act.  The registration as a No body was legally void and the CBI writhed off the hook they’d spiked themselves on.  None of which seems to have dampened the organisation’s enthusiasm for making dire proclamations about the perils of Scottish separation.

Cue some rhubarbing from independence-supporters online. What is the point in the Electoral Commission having a register, if you can continue to campaign against independence with impunity? If they’re not registered supporters of Better Together, how can the CBI get away with its interventions? Shouldn’t they be obliged properly to declare their allegiances? If it is good enough for Business for Scotland, National Collective and Women for Independence, why not the corporate lobby? While I can understand where these arguments are coming from, they fundamentally misunderstand (a) what registering with the Electoral Commission is all about and (b) why and when it’s necessary under the legislation.

Firstly, if you or your organisation – or the CBI – want to participate in the referendum campaign in a partisan way, you don’t have to register. If you want to appear on telly arguing for or against a Yes vote, make critical comments in speeches, submit letters to newspapers, write blogs or columns, you don’t have to present your credentials to the Electoral Commission. And a damn good thing too. Registration is all about money. The Scottish Parliament decided to try to cap the amount of cash sloshing around the independence campaign during the “regulated period” – which starts at the end of May and spans the sixteen weeks before the 18th of September.

The cap isn’t on all forms of expenditure, just on “referendum expenses”. These cover many of the kinds of things you’d expect – advertising, literature, press conferences, rallies and so on, but there are important exceptions. For example, salaries don’t count towards the permitted total, nor does rent, or vast piles of doughnuts, or fancy interior decoration for your swank campaign office. Unregistered organisations or individuals – like the CBI and me – are entitled to spend up to £10,000 on referendum expenses without reporting to the Electoral Commission.

If, however, you want to spend any more than this, you’ve got to sign up as a “permitted participant” in the referendum, submit to the Commission’s regulation and declare your major donors on a regular basis. In exchange for submitting to Commission oversight, you earn the right to spend up to £150,000 during the regulated period without being committed to Barlinnie. It was this status which the CBI initially applied for, and then withdrew from.

Other organisations have higher spending totals still. Political parties have their maximum spending totals calculated separately, while the two “designated organisations” – Yes Scotland and Better Together – can shell out one and a half million quid over the campaign period. If individuals or organisations exceed these limits, they’re liable to penal fines and prison sentences.  The CBI and its functionaries would have to be daft, or reckless, to conceive of shelling out more than their permitted £10,000 total.

These rules have important implications which may not be obvious to the casual observer. Firstly, if an organisation rakes in significantly more cash than its permitted maximum spend on referendum expenses, it can either sit uselessly on the funds, invest in glamorous office space, a rhinestone diamante sceptre for the campaign head – or hire an additional pile of staff.  Because only some kinds of spending is capped, general talk about organisations’ campaign limits is potentially a bit misleading.

For instance, according to its website, the pristine astroturf of the anti-independence Vote No Borders campaign has now secured £248,328 in donations – just shy of £100,000 more than the group can legally spend on campaigning during the regulated period. Unless the organisation sheds a whack of cash before the end of the month, that money would have to be ploughed into payroll. Or rent. Or yum yums. Feel those green shoots sprout.  

The same goes for Yes Scotland, whose campaign spending is capped at £1,500,000. The latest reports suggest that they’ve taken in over £2,500,000 in individual donations.  While I imagine a chunk of that will go on salaries and premises hire, anything above and beyond its maximum expenses spend could still be used to employ campaign staff. Potential advantages on that score are not to be sniffed at.  But it shouldn’t get lost amid talk of the one and a half million total either.

There’s also the outstanding issue of a “common plan” under section 20 of Schedule 4, which Ian Smart has been nattering about recently. If different organisations are campaigning in cahoots, that has implications for their spending totals. If, for example, Women for Independence form a common plan with YesScotland, then anything they spent on that plan is deducted from Yes Scotland’s total spending under the Act.  But what is a common plan anyway? If, for example, the Yes Scotland twitter account retweets another pro-independence organisation’s event, are they engaged in a shared enterprise? What about the inclusion of a distinctive Yes Scotland sticker on a Business for Scotland advertisement in a newspaper? Common plan? Or take a speaker-event, with representatives from a range of separately-organised Yes organisations on the platform. A common plan?

Under the legislation, none of this is clear and the Electoral Commission are under a legal obligation to produce guidance for campaigners. They’ve not yet done so, but the nature of their definition of a “common plan” will be of critical importance. If they are strict, holding that every connection and tie constitutes a common endeavour, Yes Scotland is at risk of having its spending total cannibalised by grass-roots activity. This could have awkward implications in terms of strategically allocating the official campaign’s funding, not least in the last days of the campaign. If you’ve got a last-minute advertising bonanza planned, you don’t want to be told that half the cash you’d earmarked to spend on it has all been soaked up by an unauthorised and amateurish pro-independence circular plastering the streets of Cumbernauld.

While the Scottish Government 2013 legislation makes a brave stab at regulating the amount of money sloshing around the campaign, the regime has obvious gaps, challenges and opportunities for manipulation. Given the figures currently being bandied about, it is salutary to remember that in the 2011 Holyrood campaign, the total campaign spending of all of the political parties put together was just £2,631,246. Whatever else it will be, the referendum looks set to be best-funded political campaign in Scottish history. The Union only cost Queen Anne £20,000 in bribes and backhanders. A bargain at several hundreds times the price.

 

Courtesy of Lalland’s Peat Worrier