Monday, 19 October 2009

Bankrupting UKIP

Today something rather shocking happened. A public body - the Electoral Commission - went to the Court of Appeal in an attempt to bankrupt a legal and widely-supported political party, not for sharp practice, dishonesty, a false expenses claim or and attempt to rig elections, but for accepting an above-the-board donation from a British citizen. It won.

The facts in the case were not disputed. In accepting the donation, UKIP (which I've voted for once or twice but don't generally support) made a technical breach of the rules. Unknown to the donor, Alan Bawn, his name had been removed from the electoral register as a result of a bureaucratic mistake. As a result, the EC - a Labour-appointed quango which sat back complacently while postal votes were rigged in their thousands - demanded the full sum of £363,697 be "returned". "Returned", in this Kafkaesque world, actually means "handed over to the government as a fine". With costs, it will probably be twice this. UKIP thus faces ruin as a result of something over which it had no control under a procedure designed to trap illegal foreign donations.

Even UKIP's opponents should be scandalised by the EC's vendetta against the party, which resembles Burmese or Zimbabwean attempts to use legal manoeuvres to frustrate democracy. But I doubt they'll see it that way. After all, the destruction of a party that dares to dissent from the narrow consensus that passes for political debate in this country - and attracts millions of votes - would be extremely convenient to the political establishment. And the Commission has been much more understanding of "mistakes" made by mainstream parties, such as the £2.4m the Liberal Democrats obtained from a convicted fraudster.

In the circumstances, it was an abuse of legal process for the Commission to have sought anything more than a nominal fine. At best, its action is an unscrupulous money-raising measure; at worst it is extremely sinister. UKIP was negligent in not doing the paperwork; but neither they nor Alan Bown, had dishonest intentions. Had Bown checked his status on the electoral roll, he would have been able to correct the error at no cost to himself. Had UKIP discovered the mistake, they could - again, at no cost - have advised Bown to correct it. This is the type of case, in short, crying out for the exercise of discretion - discretion which the legislation allows for. Indeed, the district judge, to whom it fell to assess how much UKIP owed, accepted that it would not be in the public interest to extort the full sum and ordered the party to pay £18 thousand. The Electoral Commission appealed.

The Court of Appeal today accepted that Bown, was "at all material times... was entitled to be registered as an elector". The judges also acknowledged that the right of forfeiture "must be construed having proper regard to the policy and objects of the statute" - which was to ban foreign donations. Parliament had no intention of banning donations from people who lived and voted in Britain; the stipulation that donors must be registered is there to provide a simple way of ensuring that the gifts are legal. That a clerical error may have left an entitled voter off the electoral roll was not considered during the passage of the legislation. It was not, after all, at the forefront of ministers' minds. Depsite this, they upheld the EC's attempt at legalised theft - and in the process narrowed the magistrate's discretion almost to vanishing point. It comes to something when a court construes the word "may" (in s.58(2) of the relevant Act) to mean "might". But this is what the court of appeal decreed today.

Astonishingly, the lead judge Sir Paul Kennedy decided that since Parliament had laid down the electoral roll test, it was "irrelevant whether an impermissible donor is or is not making a foreign donation". Irrelevant? When the whole purpose of the legislation is to prevent foreign donations? This is sophistry worthy of Mr Justice Eady at his most obtuse. He was also "unmoved" by the argument that bankrupting a smaller political party would have "a chilling effect on the whole electoral landscape". I am far from unmoved.

According to Nigel Farage, "There is a very real danger that this could put UKIP out of business." Would that benefit democracy? Would closing down a party that obtained more votes than Labour at the European elections, because of an error made by a public authority, improve the tarnished image of the electoral process? This decision is a scandal, anti-democratic and repugnant to any notion of proportionality or natural justice. No surprise, then.