The Brexit Party has been told to check if any of its donations came from illegitimate sources, which it will be legally obliged to return within 30 days of receipt.
Members of the elections watchdog the Electoral Commission, gave evidence to the Digital, Culture, Media and Sport Sub-Committee on Disinformation yesterday, as a Freedom of Information request was published showing the full scope of its recommendations to the Brexit Party following its recent investigation into its funding.
It showed the extra information the party’s funding system would require in order to ascertain the permissibility of a donor.
This, of course, implies that this identifying information was lacking during the European Elections and, indeed, is lacking now.
As 30 days has elapsed on the vast majority of these donations then laws have likely already been broken on a pretty vast scale.
Louise Edwards, the commission’s director of regulation, acknowledged that there was no systematic way for the Brexit Party to distinguish whether a small donation was a one-off or an atomized part of a larger donation.
The Brexit Party is now required to check these historical donations for permissibility.
This means it did not systematically check for permissibility at the time and, as 30 days have elapsed on the vast majority of these donations, laws have likely already been broken on a pretty vast scale.
Going back and checking now will not unbreak these laws.
The Electoral Commission will be well aware that it must enforce these laws impartially.
The Electoral Commission requires the Brexit Party to check permissibility under section 54 of the Political Parties, Elections and Referendums Act (PPERA) 2000, and take necessary action under sections 56 and 57.
This will likely establish that the Brexit Party took donations from unidentifiable and therefore impermissible donors on a massive scale without returning them.
Section 57 requires the return of these donations, likely to be on a crippling scale.
This should apply equally to the ‘registered user’ funds.
For example, a tranche of several thousand spurious ‘users’ could be uploaded separately to a corresponding automated PayPal upload of the same number of £25 registration fees. This would be impermissible, and the Brexit Party can’t and could not tell.
If these donations remain unidentified, then a full investigation must follow.
This is now the only way to establish if there were large impermissible donations hidden amongst them.
During yesterday’s hearing, Bob Posner, chief executive of the Electoral Commission, stated that such an investigation would determine if a donor broke the law and if the Brexit Party “inadvertently or advertently” helped.
Aiding and abetting such illegality is an offence and Posner said that these matters can often be referred to the police.
The Electoral Commission’s representatives also informed the committee that they decided to audit the Brexit Party based on their ongoing concerns with the party and due to media reports around its use of PayPal – the story which I broke on Byline Times.
They also noted that increasing the commission’s power to get information quickly would enormously help its oversight.
They suggested that money laundering regulations could be applied successfully to party funding structures (as I have suggested previously).
They also acknowledged that the £20,000 fine was not a suitable deterrent for people determined to push several millions into campaigns illegally.
Significantly, the Electoral Commission must ask itself why all scenarios and weaknesses to do with electoral law were not tested against modern funding systems in the wake of the 2016 EU Referendum.
The £500 loophole, which was only added to reduce administration for parties 20 years ago, must be closed. A party could now openly and legally fundraise completely from identifiable foreign donors in standalone amounts of less than £500. This would be legal even though the reason behind the law was to prohibit impermissible foreign donations.
The law states that a donation not ascertained permissibly must be returned within 30 days after the donation. This cannot be retrospectively fixed. If this was not done, the law has already been broken and that donation must be forfeit. This law must apply to all parties without exception.
The Electoral Commission must discover if the unidentified donations hide potential further illegality. The powers to achieve this can only come from a formal investigation.
The Brexit Party used this money skilfully, to get many ticks on ballot papers taken mainly from the Conservative Party.
It must show that it accounted for this money legally at the time – or be held legally accountable now.