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Summary

This case relates to a point of statutory construction in the Representation of the Jones_JPeople Act 1983, s 90C(1)(a). The question was whether goods, services, or facilities provided free-of-charge or at a discount to a candidate for election need to be declared by the candidate as an election expense even if they had not been authorised by the candidate, their election agent, or someone else authorised by the candidate or agent.

The Supreme Court decided unanimously, in a judgment given by Lord Hughes, that such goods, services or facilities must be declared in the candidate’s spending return.

Background

The appellant successfully stood in the 2015 General Election as the Conservative candidate for member of Parliament from the South Thanet constituency. His constituency had been particularly high-profile at that election, because it had been contested by the then-leader of UKIP, Nigel Farage. Because of the high-profile nature of that contest, the national Conservative party had invested campaigning resources in the appellant’s constituency.

Subsequent to his election, criminal proceedings were brought against the appellant and his election agent for making false declarations in relation to election expenses, and for aiding and abetting the making of false declarations. The appeal to the Supreme Court was from a preparatory hearing in the Crown Court; at the time of the Supreme Court judgment, the criminal trial had not taken place. As it happens, the appellant was subsequently acquitted at trial, while his agent was convicted.

The appellant sought to argue on this appeal that campaigning by the national party, even where that is directed locally at the candidate’s constituency, does not need to be declared by the candidate because it does not count as being incurred by the candidate, and therefore does not fall within the statutory provisions relating to regulated spending. The Supreme Court rejected that argument.

The Supreme Court’s decision

The Supreme Court decided that facilities, goods and services provided free of charge or at a discount must be declared even if they were not authorised by the candidate, their agent, or a person authorised by the candidate or agent.

The relevant statutory provision, s 90C of the 1983 Act, asks three questions to determine whether expenditure must be declared:

  • Were the goods/services/facilities provided for the use or benefit of the candidate either free or charge or at a discount of more than 10% the commercial value?
  • Were they made use of by or on behalf of the candidate?
  • If they had actually been paid for by or on behalf of the candidate, would they amount to election expenses?

If the answer to each of those questions is yes, the expenditure falls to be declared. The Supreme Court found that there is no additional requirement that the expenditure be authorised by the candidate or their agent, or someone authorised by either of them. All that is required is that the goods/services/facilities were used by or on behalf of the candidate, not that they were authorised by or on their behalf. Other parts of the statute where authorisation is expressly required (namely, s 90ZA(4)) do not import a requirement for authorisation into s 90C, since s 90ZA is itself subject to s 90C and not vice versa.

The court reached its decision on principles of basic statutory construction, and was unpersuaded by consequentialist arguments raised by both parties to the appeal. It observed that “the plain reading of the Act … cannot be displaced by possibly inconvenient or even newly recognised consequences”, even where that makes life more difficult for the election agent and may expose them to criminal consequences in the form of the strict liability version of the offence. The court noted that the more serious offence requires dishonesty; and where there is no dishonesty, and an inaccurate or incomplete spending return has been submitted in good faith, the court has a specific power to relieve a convicted person from sanctions. Thus, only the three questions in s 90C are relevant for determining whether free of charge or discounted services must be declared; and a failure to declare them where those three elements are satisfied is a breach of the regulated spending rules.