Electoral Commission Response

Last week I wrote to the electoral commission. I enquired if recent news reports about leaked emails surrounding Business for Scotland may have implications with regards to the electoral commission's rules about separately registered campaign bodies "working together". If you're unfamiliar with the background you can read the detail here > Tugging at Threads.

The electoral commission responded publicly last week (without informing me, the "complainant") and their conclusion was unambiguous:

The Commission has found no evidence during its assessment that the SNP and BFS worked together in a way that broke the law. There is therefore no need to open a full investigation.

Fair enough. One of the roles of the electoral commission is to respond to enquiries from the public. If in the process this helps a wider understanding of electoral commission guidelines (I'll come on to explain what I think this judgment clarifies) then all well and good.

Of course there was some rather hysterical reaction to the electoral commission's findings from the usual suspects who referred to my enquiry as "nonsensical", "malicious" and "sensationalist". You can read my two emails for yourself and decide if that is fair.

I have since discovered I was not the first to raise these questions, but I presume Business for Scotland meant me when their press release referred to the "original complainant" being "a well known unionist blogger and social media troll" (translation: somebody who looks at economic data and challenges people like Business for Scotland when they blatantly misrepresent both the economic facts and the nature of their own organisation).

I of course did ask the Electoral Commission for some explanation of their judgement and received a brief email.  Their explanation fascinated me and I think may have very significant implications for how regulated bodies behave in future referendums.

Here's the reply I have sent them; I hope it speaks for itself.

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Thank you for your response.

It is unfortunate that you didn’t notify me of these findings on the day that both the Electoral Commission and Business for Scotland put out press releases about them. I of course accept your apology and explanation that this was simply an oversight on your part.

I would hope that you welcome engagement with people wishing to understand the rules you enforce and I'm sure you would not want to discourage other people from coming forwards with any concerns they may have. With this in mind I would be grateful if you could confirm whether or not you consider the nature of my initial enquiry to be in any way "nonsensical",  “malicious” or “sensationalist” (these are all words used by Business for Scotland in their press release following your judgement).

Turning to the contents of your email, there would appear to be two key elements to your conclusion and I hope you will be able to offer some clarity about both;

1. The point of law: what activities might be considered to constitute “working together”?
2. The point of fact: what would constitute “reasonable grounds to suspect”?

The point of law: What activities might be considered to constitute “working together”?

I know several campaigners during the independence referendum interpreted these rules more strictly than you appear to and may have compromised their effectiveness as a result. It strikes me therefore that your assessment may provide some helpful clarity as to what would not be considered “working together”.

You state:

“Under SIRA schedule 4 paragraph 20, campaigners were considered to be working together if they had agreed and implemented a common plan or joint campaign during the referendum period to promote or procure a particular outcome”

You go on to say

“… does not amount [to] having agreed a common plan to work together as defined in the legislation”

So it is clear that you assessed this enquiry on the basis of whether or not there is evidence that the bodies involved “agreed a common plan to work together as defined in the legislation”.

Here is the full text of the relevant clause in the legislation (the highlighting is mine):

“20 (1) This paragraph applies where— (a) referendum expenses are incurred by or on behalf of an individual or body during the referendum period, (b) the expenses are incurred as part of a common plan or other arrangement with one or more other individuals or bodies, (c) the common plan or arrangement is one whereby referendum expenses are to be incurred by or on behalf of both or all of the individuals or bodies involved in the common plan or arrangement with a view to, or otherwise in connection with, promoting or procuring one particular outcome in the referendum, and (d) there is a designated organisation in respect of each of the possible outcomes in the referendum.”

The semantics of this are clearly important. I know many campaigners have interpreted “other arrangement” to mean they should avoid coordinating ongoing decisions around activity and expenditure during the campaign (for example by attending board meetings of other bodies and/or directly discussing how resources should be focused).

One possible interpretation of your assessment is that an “agreed … common plan” would have to be seen to be in place before two bodies would be deemed as working together. Can you confirm if this is correct?

If this is correct could you formally confirm that this sets the precedent that campaign bodies are free to attend each other’s board meetings (and by implication any other planning and strategy meetings) and to contribute to each other’s decisions about how to focus resources, so long as a “formal plan” can’t be seen to exist?

I may have interpreted your judgement incorrectly. It’s possible that - although your explanation refers only to the lack of evidence of an “agreed plan” - you also concluded that there weren’t sufficient grounds for suspicion that some “other arrangement” may have been in place.

It would be helpful therefore if you could clarify whether you considered the wider definition of working together which your own guidance notes describe as:

if: you coordinate your activity with another campaigner – for example, if you agree that you should each cover particular areas, arguments or voters; another campaigner can approve or has significant influence over your leaflets, websites, telephone scripts or other campaign materials

It strikes me that these are all the sorts of things that might be discussed at board level. If the above only applies if the coordination happens as part of an "agreed plan" (as opposed to as part of an ongoing decision making process) then that clearly raises the threshold for what would be considered working together. I know I would not be alone in welcoming clarity around this point.


The point of fact: What evidence would constitute “reasonable grounds to suspect”

Quoting directly from your email to me you state:

“Our assessment looked at those press reports as well as the concerns you raised about their implications [..] You referred to comments attributed to Peter Murrell, and Tony Bank [sic] about Michelle Thompson’s [sic] employment, and Ivan McKee about Colin Pyle’s exclusion from BFS meetings. While the SNP and BFS were registered with commission [sic] as permitted participants supporting a ‘yes’ outcome in the referendum, this and the contents of these emails, if correctly reported, does not amount having [sic] agreed a common plan to  work together as defined in the legislation.”

Clearly what you deem to be an appropriate level of assessment will depend on your answer to the question surrounding the point of law: are you just looking for grounds for suspicion that a “common plan” existed or would some “other arrangement” (such as active involvement in ongoing decision-making) count as potentially working together?

If the threshold for “working together” is evidence that a plan existed – something that you could put your hand on and say “there’s the plan” - then I accept that my enquiry warrants no more than the apparently cursory assessment it has received.

If, however, you interpret the question of law more broadly (to include “other arrangements” such as attending each other’s board meetings), I think it is reasonable to ask more about the nature of the assessment you carried out.

You make no mention in your assessment (or your press release) of Yes Scotland. Obviously you know Colin Pyle was Head of Development for Yes Scotland which was a separately registered campaign body. I presume this is merely an oversight on your part and we are to infer that you have also concluded that there is no evidence (or there are insufficient grounds for suspicion that) BfS may have worked together with Yes Scotland.

You state that you “looked at the press reports” and refer to “the content of these emails, if correctly reported”. This seems to imply that your assessment did not go any further than reading the press reports – could you confirm is this is correct?

This matters because your email assessment refers to “Colin Pyle’s exclusion from BfS meetings” which seems to imply that you have concluded he did not attend BfS meetings. The blog by Paul Hutcheon (the source for these press reports) concluded “It is unclear how the Pyle issue was resolved”.

I recognise that this assessment process is simply about determining whether sufficient grounds for suspicion exist to launch a full investigation, but your process documentation states that the assessment process can include “making initial inquiries of the subject of the allegation and other individuals or organisations”. I would therefore be interested to know if you deemed it worthwhile to make enquiries in particular with respect to the specific questions I raised in my second email (which you acknowledged you would be considering):

1. Did Mr Pyle attend any BfS Board meetings (before or after this email exchange)?
2. If he did, did his attendance involve interventions or knowledge transfer that might constitute “working together”?

Of course depending on the “point of law” question above, you may be signalling that it is acceptable for members of different registered bodies to attend each other’s board meetings and so these questions are not relevant. If this is the case, among those who will be surprised will be Ivan McKee himself who, if the emails are correctly reported, stated:

“Frankly struggling to see how someone in the payroll of Yes Scotland coming to a BfS meeting can be classed as anything other than ‘working together’.”

In conclusion:

• It may be simply that your judgement helps inform campaigners that the threshold for what might be considered "working together" is in fact far higher than many thought. If this is the case I am sure a lot of people will welcome this new clarity
• It may be that you carried out a wider assessment than your brief email suggests and you have in fact confirmed to your satisfaction that Mr Pyle did not attend any BfS meetings. It may be that if you had reasonable grounds to suspect that he had attended BfS board meetings this may have triggered an investigation. Again, I am sure I will not be alone in wishing to know which is the case.

I hope you appreciate that my tenacity on understanding the detail here is motivated by nothing more than a desire to ensure that the rules you enforce are as widely understood as possible and fully adhered to.

I look forwards to your response.

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