Reform’s critics are weaponising electoral law

What is happening to Reform UK right now, from a legal perspective, is alarming. Reform is the breakout party of the moment. A party that has come from nothing to threaten the exhausted duopoly that has long dominated UK politics. Now, rather than defeat Reform in a battle of ideas, it appears that there is a solid constituency within the political and media class that wants them defeated through the law.

The current scandal centres on a documentary, produced by a group called Verbatim and Channel 4 News, broadcast on Thursday evening. It claims that Reform arranged for what it thought was a US firm to pay for three polls it commissioned earlier this year. Under electoral rules, parties are forbidden from accepting donations from non-UK sources.

The purported donor, posing as the UK-based son of an American financier, was actually an investigative reporter. James Orr and Dan Jukes – the two senior aides from Reform who were secretly recorded meeting with the seeming donors – have since stepped down. In other footage, Jukes appeared to discuss a way in which the party could receive £500,000 from the same supposed US-based source.

The footage has provoked a particularly excited reaction among our anti-Reform political and media elites. Above all, they have demanded the authorities take action. In response to these calls to intervene, the Metropolitan Police is said to be assessing the case.

So what exactly is Reform alleged to have done? Section 54 of the Political Parties, Elections and Referendums Act 2000 prohibits a party from accepting a donation where ‘the person by whom the donation would be made is not, at the time of its receipt by the party, a permissible donor’. In this case, the fictitious donor, being based in the US, would be impermissible.

Reform’s many pursuers claim that, in commissioning the polling, the party received a donation from a source it knew to be impermissible. The relevant offences concerning acceptance of an impermissible donation depend upon the receipt and subsequent treatment of that donation by the party. Lawyers will probably argue that payment for the polling constituted a donation to the party, given that the polling was commissioned by Reform and seemingly provided it with a benefit. After all, Electoral Commission guidance expressly recognises the payment of party expenses and sponsorship of studies or research as capable of amounting to donations.

But with respect to the £500,000, the picture is less clear. Reform never received the money. Reform’s detractors may instead point to Section 61 of the act, which criminalises knowingly entering into, or doing an act in furtherance of, an arrangement which facilitates or is likely to facilitate the making of a donation by an impermissible donor. Now, we haven’t seen all the evidence yet, but to claim that anyone in Reform entered into such an ‘arrangement’ on the basis of what we have seen so far is a stretch.

Even if Orr and Jukes were involved in discussing how the law could hypothetically be circumvented, that is not necessarily enough to establish the offence. A criminal prosecution would have to prove the elements of the offence beyond reasonable doubt. Merely discussing the possibility of breaking the law, or describing how it might be done, is not in itself necessarily criminal. The prosecution would have to prove that someone knowingly entered into, or acted in furtherance of, an arrangement of the kind prohibited by Section 61.

The law in this area is convoluted. Whether there is sufficient evidence for any prosecution will depend on the full recordings and surrounding evidence, much of which is not yet public.

But none of this really matters to the broader point. Those calling for a police investigation and prosecution are not really interested in the dispassionate application of electoral law. They are weaponising the law for political ends.

Reform has suffered, and will continue to suffer, the political consequences of what has been revealed. Maybe it will hurt its electoral chances; maybe it won’t. But those gleefully demanding the police effectively destroy a popular political party are setting a very dark precedent.