Monday, 14 July 2014

Is the Electoral Commission working for #indyref?

The Electoral Commission (EC) is responsible for ensuring that September's independence referendum is conducted fairly, and that participants adhere to the rules on funding and conduct as set out in the Scottish Independence Referendum Act 2013. Penalties for breaking these rules are harsh - individuals can be imprisoned for a significant period if convicted of some of the offences defined.

But there is a fundamental problem with prevention. Assessment of whether rules have been broken is largely post-hoc. Little or no action is taken during the campaign. There is no apparent prevention activity; merely the threat that after the vote everything will be checked and if things don't add up you'll need a good lawyer. Is such deterrence enough? Is it working?

For normal elections, this is arguably a workable model. The participants are political parties who generally have existed for a long time and plan to exist well into the future. Reputational risk is serious and genuinely feared, and most parties have developed robust internal systems to prevent contraventions. Individuals standing for election have a powerful disincentive to breaking the rules - they could have their electoral victory taken from them. The EC has little need to police during a campaign; it can merely tot everything up afterwards and mete out any justice required.

But in this independence referendum, things seem to me to be very different. The key participants, Yes Scotland and Better Together, have both been set up specifically for this event, and will almost certainly cease to exist shortly after. Many of the other registered participants - Wings Over Scotland, Vote No Borders and so on - are of a similarly disposable nature. Only the political parties have reputational risk, and it's clear that parties' existing systems are rolling into action as usual.

Individuals within the "disposable" campaigns will remain culpable, of course; but we need to look carefully at how that culpability might play out. Nobody here is in the position of an individual standing for election. And critically nobody is risking having any victory taken off them personally if they have done a bit of creative accounting. And if there is the risk of jail time - well, there are certainly participants in this debate who would thoroughly welcome martyrdom for their cause, and who could muster plenty of loud voices to paint any conviction as such.

Because here's the rub. If one or two of the campaign groups were discovered, post-September, to have mis-reported a bit of funding here, or co-ordinated where they shouldn't have there, the chance of that resulting in a re-run of the referendum are vanishingly small. There would be massive resistance on all sides to a re-run - for quite justifiable reasons. It would require evidence of major fraud for it to be even contemplated. Far more likely is that individuals would be given their punishments but the result would stand.

And so the issue of prevention is far more critical for this referendum than it is for a normal election. And yet there is very little evidence that the Electoral Commission is even slightly interested in it. They appear to be running this as a business-as-usual electoral campaign.

Does anyone care?

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