Aaron Banks, Leave.EU, the NCA and the Electoral Commission

Last week, the Electoral Commission referred Brexit campaigner Aaron Banks, his 2016 organisation Leave.EU, and his senior colleague Liz Bilney to the National Crime Agency (NCA). The purpose of the investigation is to discover whether electoral laws were broken regarding Leave.EU’s referendum funding during 2016, and also whether Mr Banks and Ms Bilney knowingly concealed the true sources of £2.9million of this money.

In 2016, Mr Banks and his group of insurance companies loaned £2million to a body called Better for the Country, which ran Leave.EU. Mr Banks also personally loaned £6million to Better for the Country. Out of this total of £8.2million, the Electoral Commission now say that £2.9million was spent on funding and donations towards the EU referendum. Bob Posner of the Electoral Commission said:-

“We have reasonable grounds to suspect money given to Better for the Country came from impermissible sources and that Mr Banks and Ms Bilney, the responsible person for Leave.EU, knowingly concealed the true circumstances under which this money was provided”

In this context, “impermissible sources” essentially means overseas or foreign funding. Such sources are not permitted to fund campaigning in UK domestic elections or referenda. Mr Posner of the Electoral Commission added that the financial transactions in question included companies incorporated in Isle of Man, which is the reason for the investigation being referred to the NCA (the Electoral Commission not having the jurisdiction to conduct enquirers in the Isle of Man).

Can it therefore be implied that the true source of these monies was in fact Mr Banks and his companies, but simply that those companies are registered off-shore, in breach of the rules? Or is it the case that the monies actually originated from as yet unidentified foreign sources, and Mr Banks' entities were just a conduit? Time will tell, but a clue can be gleaned from Mr Banks’ very swift response to this development when he said:

“There is no evidence of any wrongdoing from the companies that I own. I am a UK taxpayer and I have never received any foreign donations. The Electoral Commission has produced no evidence to the contrary.”

Certainly, a focus on Mr Banks’ tax status implies this might centre on a technical point about the jurisdiction in which Mr Banks’ money was held, rather than any actual in-pouring of ‘foreign money’ intended to influence the UK towards Brexit.

What can be read into the Electoral Commission’s decision to refer?

Although many Remainers might follow this investigation closely, it has to be said that the Electoral Commission do not have a strong recent record in interpreting electoral rules. In July 2018 the Commission fined the official Brexit campaign Vote Leave £61,000 and fined Darren Grimes (founder of BeLeave) £21,000 for breach of electoral rules. However, the High Court ruled in September 2018 that, back in 2016, the Electoral Commission had wrongly advised Vote Leave that it was permissible for it to pay off Mr Grimes’ BeLeave bills of £625,000. It transpired that after the referendum, the Commission then changed its position and took action against Vote Leave - for following the Commission’s own advice! Lord Justice Leggat said “As a result of this error, the Electoral Commission has interpreted the definition in a way that is inconsistent with both the language and the purpose of the legislation”. He added there was no “rational basis” for the watchdog’s actions, which he described a “recipe for abuse” of the law.

Matthew Elliot of Vote Leave said they “would not have made the donations that it did, had it not been for the Commission’s clear advice”. For once, a prominent Anti-Brexit campaigner agreed, when former Labour peer Lord Adonis said “It sounds to me as if the Electoral Commission has not been doing its job properly… (In the event of a second EU referendum) we need a rather more fit and proper body to be in charge of it”.

All in all, the mere fact that the Electoral Commission suspects Leave.EU of receiving impermissible funds is not the smoking gun that many Remain campaigners had hoped for.

How long will all this take?

Given that we are over two years down the line already, an interesting question is whether the NCA will be able complete their work before Britain actually leaves the European Union, whenever that proves to be. It seems the race between the NCA and the Brexit process is now on, although by present standards it will not so much be ‘Tortoise versus Hare’, as ‘Tortoise versus Tortoise’.

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