Vote Leave, the Electoral Commission and Getting to the Truth

Back in February 2016, a then obscure MP called Steve Baker lobbied his colleagues to support Vote Leave’s application for official designation in the Referendum campaign. Here’s what he wrote:

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He’s not amongst the EU’s greatest fans is Mr Baker. It should be “wholly torn down,” he said. It’s an “obstacle” to “free trade and peace among all the nations of Europe as well as the world.” In June of this year, Theresa May made him a Junior Minister in DExEU. But I digress.

The Times picked up the story. It was all just a misunderstanding, apparently:

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And Vote Leave was duly given the designation, the Referendum was held, and the rest was history. Or may be.

In early August, shortly following the Referendum, the inestimable Marie Le Conte broke a story about a Mr Darren Grimes: Mr Grimes was a fashion design student with a modest presence on social media: around 6,000 Facebook fans and 4,000 Twitter followers. In the weeks leading up to the Referendum campaign Vote Leave had, or so we were told, given Mr Grimes £625,000 and he had received a further £50,000 from an unidentified individual. The total was just under the £700,000 Steve Baker’s email foretold.

Let me break off at this point to try and describe the law.

The law imposes spending limits to seek to protect our democracy from capture by those with endless money to spend. And, to protect those spending limits, it stops organisations from establishing puppet entities, each with their own spending limit.

The relevant definition for whether an organisation is working as a puppet is this (and I’ve annotated it to make the legislation easier to read):

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So, if you boil it down, and focus on the bit where there might be said to be doubt, the question is, ‘was there a “plan or other arrangement” between Darren Grimes and Vote Leave with a view to promoting a Leave result?’

These words “plan or other arrangement”, it hardly needs to be said, are incredibly broad. They don’t require a contract, or writing, or even an explicit arrangement. An unspoken understanding could, I think, as a matter of law, suffice.

So, was there such a “plan or arrangement” between Mr Grimes and Vote Leave?

What we know is this:

(1) a firm called Aggregate IQ operated out of an office above an optician in a provincial Canadian city;

(2) Darren Grimes, based in Brighton, eschewed UK and US based digital agencies and spent – £625,000 – with Aggregate IQ;

(3) so did many other Leave campaigners. According to the Telegraph, some £3.5m was spent with Aggregate IQ, including 40 per cent of Vote Leave’s £6.8 million budget;

(4) Darren Grimes reported to the Electoral Commission that the money he had spent with Aggregate IQ had been given to him by Vote Leave in three donations totaling just over £625,000, the first of which was made only ten days before the referendum;

(5) the donations had been in the form of settling Darren Grimes’ bills with Aggregate IQ – the money never actually passed through Mr Grimes’ hands;

(6) the money had been reported to the Electoral Commission as Darren Grimes’ spending. In other words, both he and Vote Leave were implicitly or explicitly asserting in their returns that there was no such “plan or arrangement”.

Faced with evidence of the donations made by Vote Leave to Mr Grimes, the Electoral Commission took up the cudgels (if that is an apt metaphor for what followed). It asked some questions of Mr Grimes, and Aggregate IQ. It may have asked questions of others.

What we now know, thanks to a FOI request, is the explanation Darren Grimes gave to the Electoral Commission. You can search the emails here.

Here is what Darren Grimes said:

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And later:

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This was in 8 August 2016. The trail then went cold before warming up again in March of this year as the Electoral Commission finally asked a key question. It elicited this further reply from Darren Grimes.

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Of course, I do not know. But I would wager a substantial sum of money that this latest explanation – although sent in Mr Grimes’ name – was written by a lawyer. The language bears a lawyer’s precision. The lay-out of what is said to be Mr Grimes’ reply – setting out the question and then answering it – is very lawyerly. The register is different from Mr Grimes’ previous emails. And the care taken with the explanation: a sequence of events that, wrenched from context, seems plausible? That, too, is characteristic of a lawyer.

Memory is a malleable thing. It bends and it shapes. Sometimes it is you who does the bending, if only inadvertently, as you write the song of yourself. And sometimes lawyers do the shaping as they help a witness reconstruct his memory with delicately phrased questions and judiciously proffered documents.

And the truth?

The truth is found when you set those malleable memories against extrinsically determinable facts. And ask of different explanations which is likely to be real.

Here is one explanation; this is what Mr Grimes and/or Vote Leave invite us to believe.

  • Not one but two very substantial donations, no strings attached, just happened to be made to the unknown Mr Grimes.
  • Vote Leave donated £625,000 to someone who thought its messaging was poor.
  • Mr Grimes independently decided to spend £625,000 with the same obscure foreign organisation as was delivering Vote Leave’s messaging.
  • Mr Grimes spent time campaigning and socialising with Vote Leave activists but no understanding arose between them as to what and with whom Mr Grimes would spend a very large donation on.
  • Aggregate IQ were happy to carry out £625,000 of work for an obscure student in another country without knowing its bill would be met.
  • Darren Grimes was sufficiently confident Vote Leave would make a donation to him that he was happy to incur £625,000 of debt to Aggregate IQ.
  • Darren Grimes and Aggregate IQ – both little known and in different continents – got comfortable with one another quickly enough to undertake a huge transaction in such a short period of time.

Is that explanation more or less likely than this alternative explanation?

Vote Leave wanted to spend more than the law allowed, just as Steve Baker had foretold. It told Aggregate IQ that it would foot the bill for extra work via Mr Grimes. Mr Grimes was happy to channel Vote Leave money to Aggregate IQ because it would mean he would make friends in high places.

Oh. Mr Grimes is now the Deputy Editor of Brexit Central.

Darren Griems

Faced with those alternative explanations the Electoral Commission made its choice.

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As I explain below, the evidential picture I have is incomplete. But I think the British public deserves better than this from the Electoral Commission.

The Electoral Commission is the watchdog of our democracy. It should stand sentient and courageous. It should not accept an explanation which, for reasons I have set out above, seems to me to stretch credulity to breaking point. If and when it does so it undermines the law and jeopardises our democracy. It turns our regulatory regime into a fig-leaf; it delivers only the appearance of legality without the actuality.

***

There is one further piece of evidence in the cache: an extract from a letter sent to the Electoral Commission by Aggregate IQ recording the question and giving the answer.

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You will note that, although the letter gives the name of Mr Grimes, it does not entirely answer the question. It does not go on to assert there were no other persons who instructed or commissioned or otherwise liaised with Aggregate IQ about the work carried out. Some of that ground may, however, be thought to be covered by the rather vague answer given to the subsequent question.

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But it does not appear that the Electoral Commission followed up on this point.

***

It is right – and fair to Mr Grimes – that I say, explicitly: I do not assert that his explanation is false. What I have sought to do is set out the information that I have seen and that seems to me to be material and invite readers to ask themselves whether the explanation bears the stamp of reality. My opinion, based on what I have seen, is that it does not.

I should also say explicitly that the correspondence cache is incomplete and there may be further relevant explanations to which I am not party. If those are provided to me and I think they are material and relevant I will add them to this post.

There is other material in the cache which, in the interests of achieving some economy, I have not addressed here. I have set out above what seem to me to be the most material points.

16 thoughts on “Vote Leave, the Electoral Commission and Getting to the Truth

  1. A remarkable story. Who are the Electoral Commission accountable to and , if they have indeed been negligent in pursuing any statutory duties they have then is there any recourse? There are surely categories of uk/eu citizens who are or will suffer damage if a widespread breach of electoral law has resulted in BREXIT.

  2. This is only one of the stories. How many others must there be?

  3. Vote Leave repeatedly demonstrated its willingness to lie, whether by selective omission, strategic silence, more or less blatant distortion, and outright fabrication. I have absolutely no confidence that they are being truthful in this case.

  4. I have to say I find the Electoral Commission’s conclusion astonishing.
    Grimes’s email of 9 September 2016 says that Vote Leave “discharged BeLeave’s debt to AIQ by a transfer of cash at our request”.
    That makes clear that (i) the money was paid directly by Vote Leave to AIQ (rather than to BeLeave), and (ii) it was not paid until after BeLeave had already commissioned services from AIQ and incurred a debt.
    It is inconceivable that BeLeave would have incurred debts of £600,000 without first knowing that those debts were going to be discharged.
    It therefore seems overwhelmingly likely that the sequence of events was:
    1. Vote Leave told Grimes that an amount of money would be available for BeLeave to spend;
    2. Grimes commissioned services of that order from AIQ;
    3. Grimes then told Vote Leave the amounts that needed reimbursing; and,
    4. Vote Leave released the money to AIQ on BeLeave’s behalf.
    I can’t see why that isn’t clearly a “plan or other arrangement by which referendum expenses are to be incurred”. It wasn’t just a donation, because Vote Leave had full control of the money up until it was paid to AIQ, and they knew what the money had been spent on before they paid. If Grimes had tried to spend it on Remain, or to embezzle it, they could (and no doubt would) have refused to pay.
    Whether or not they told him to spend it specifically on AIQ, or even knew that he intended to, seems to me to be irrelevant. The statutory test doesn’t say anything about the money all going to the same recipient. The question is whether the money was going to be spent with a view to promoting a particular outcome, i.e. Leave. Vote Leave must have known that it would be, and they had the power to ensure that it was.
    The only other component of the statutory test is that the plan or arrangement has to relate to the incurring of expenditure by more than one person. But as seems to be freely admitted by everyone (see the Times article from August 2016), the whole purpose of the arrangement was to ensure that “all the money [Vote Leave] had been given would be used”. If that is right, then it was inherent in the plan that Vote Leave would spend close to £7m and that BeLeave would spend what it was given, so that part of the test is also satisfied.
    At the very least I don’t see how anybody could conclude that there is nothing worth investigating further.
    And it is pretty surprising that the Commission doesn’t even seem to have asked for the dates on which (i) Vote Leave told Grimes that money was going to be available for him to spend, and (ii) Grimes commissioned the services. That is obviously key information in determining whether there was a plan or arrangement.

  5. More importantly, could thjis affect the legality of the referendum result?

  6. Yes, it smells very badly. What I don’t understand is the reaction of the Electoral Commission. Did they explicitly rebut your points or just issue their decision without analytical comment?

  7. An extraordinary tale! What would be the consequences for the individual (s) involved should it come to pass that the electoral commission subsequently agrees with the suspicions in this piece and rules differently? What additional evidence do you think would be required to change its mind?

  8. Well, I think it’s a criminal offence…

  9. We will need to watch very closely for tactics like this when Scotland goes indyref2-ing. We had a London PR company astroturf a No campaigning organisation last time (aided and abetted by a full puff piece on BBC in Scotland).

    Already the extant No grouping is receiving anonymous funds via Northern Ireland where donating anonymously is permitted. NI looks to be being used to channel anonymous money around.

    I hope I don’t have to explain why elements in NI might find common political ground with Unionists in Scotland.

  10. Is a judicial review of the Electoral Commission’s decision possible? It seems to me that any voter would have locus given that all voters had an interest in the referendunm result. When did the EC make its decision. Aere we still within the 3 months?

    Jolyon. I am a solicitor with much experience of JR. If you want to discuss this further, please feel free to mail me.

  11. It seems like the Electoral Commission would believe that Fr Christmas is alive and well and fairies do indeed live at the bottom of the garden.

  12. Pingback: Vote Leave, the Electoral Commission and Getting to the Truth | Waiting for Godot – leftwingnobody

  13. Doesn’t the very fact that Vote Leave knew Mr Grimes’ campaign methods, both from being able to see them online, and from meeting him as a volunteer, imply that they had a plan or arrangement to co-ordinate expenditure?
    If there were many small campaigns, it takes planning to pick one of the many, and the law quoted doesn’t say that the plan must be mutually understood, or that Mr Grimes must be knowingly spending in pursuance of the relevant plan.
    If the response is that there was no careful judgement, but that the money was given via Mr Grimes because he was so close and familiar to the campaign, then that in itself is damning: that very closeness and familiarity is assurance that the money will be spent in accordance with Vote Leave’s goals and tactics, because Mr Grimes was so heavily involved in promoting those goals and tactics as a volunteer.

    On the insightful comment above from Tom Leaver, I might add that accounting standards require us to judge who has an asset by who maintains control and the risks and rewards of ownership. By this standard Vote Leave never made a donation to Mr Grimes, but spent money directly on AIQ.

  14. Pingback: InFacts Vote Leave spending casts doubt on referendum validity - InFacts

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