Investigating election expenses

Shortly after Theresa May announced that she would seek to hold a general election there were claims that her objective was, at least in part, to ‘bury’ ongoing expenses investigation. But what would be the effect on individual MPs if decisions are made to prosecute?

The issue arises following an Electoral Commission report in March 2017 of an investigation into Conservative party spending returns for various elections, including the 2015 general election. Overall the party was fined £70,000.

One group of findings was that some expenses had been incurred promoting individual candidates but were wrongly recorded as national expenditure. This was a breach of section 70 of the Political Parties, Elections and Referendums Act 2000 because party campaign expenditure covers spending on promoting ‘the party and its candidates generally’.

It excludes anything that should be included in an individual candidate’s return i.e. expenses in connection with that specific candidate. Those are dealt with by the Representation of the People Act 1983 (RPA) and are a matter for the police and prosecuting authorities. The commission was careful to point out that it had no power to investigate individual returns but noted that its findings cast ‘doubt on the accuracy’ of them.

The commission’s report noted that information had been shared with the police. Prosecutions for offences under the RPA must be commenced within one year after the offence was committed and for the 2015 election this would have expired in 2016. The court may on application extend the period for up to two years and various applications have been made and granted. However, it is understood that any extensions will now expire before the general election on 8 June 2017.

Obviously, we cannot know the detail of any investigations but the following is the general statutory framework.

The RPA imposes a spending limit on individual candidates (section 76). Within 35 days after a general election the election agent must make a true return of all expenses incurred by or on behalf of the (section 81). The return must be supported by a declaration by the candidate stating that they have examined it and that ‘to the best of my knowledge and belief it is a complete and correct return as required by law’ (section 82 and schedule 3).

By section 82(6): ‘If a candidate or election agent knowingly makes the declaration required by this section falsely, he shall be guilty of a corrupt practice’.

A corrupt practice is an either way offence (section 168) and by section 173 a person who is convicted of such an offence is incapable of being elected to the House of Commons or holding any elective office for a period of five years and ‘if already elected to a seat in the House of Commons or holding any such office, shall vacate the seat or office’. There are provisions in section 173(8) protecting the position in the event of an appeal but an MP is suspended pending any appeal.

Various other offences can be committed in connection with expenses and returns. They include incurring expenses beyond the legal limit (section 76) and failing to comply with the provisions about returns (section 82). These are illegal practices which is a less serious category than corrupt practice. These offences are triable summarily and the person convicted of them is liable to the same disqualifications in section 173. However, there is a power to grant relief where the act was inadvertent or there was some other reasonable excuse (section 167).

So, in summary the position is:

• The general election will not prevent any prosecution of MPs who are subject to investigation provided the prosecution is started within two years after the offence.

• A decision to prosecute has no legal effect in itself on the candidate’s right to stand in the general election.

• If a candidate is elected but later convicted of an offence concerning expenses then they will be liable to disqualification. This will be automatic for a corrupt practice but subject to discretionary relief for an illegal one. If disqualification applies, then it is a personal incapacity and the relevant MP must vacate their seat. They will not be able to rely on the fact that they have been re-elected since the offence.

Martin Westgate QC is a barrister  at Doughty Street Chambers @DoughtyStPublic  

Doughty Street will be providing a weekly ‘Election and the Law Update’ for Solicitors Journal. More information at: bit.ly/SJqajTd2

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