The Electoral Commission decided that “it would not be in the public interest to investigate” even if Vote Leave broke the law by coordinating with the Democratic Unionist Party during the 2016 Brexit referendum, new documents reveal.

The elections watchdog also said that money obtained from crime might not make a political donation unlawful. The comments were made following concerns raised in a BBC Northern Ireland documentary about a secretive £435,000 donation given to the DUP’s Brexit campaign.

Last week, Vote Leave dropped its appeal against the Electoral Commission’s ruling that it broke the law in a different way – by channelling hundreds of thousands of pounds of donations to BeLeave, another pro-Brexit campaign group. The official Vote Leave campaign, whose leaders included Boris Johnson and Michael Gove, has been fined multiple times and referred to the Metropolitan Police for breaking electoral law.

Internal documents prepared by the Electoral Commission after the BBC Northern Ireland documentary reveal little appetite to investigate potential Vote Leave coordination in the DUP’s referendum spending. As Vote Leave had already been fined for a breach of electoral law after giving money to BeLeave “it would not therefore be in the public interest to investigate even if there was evidence of an offence”, the regulator said.

The DUP received £435,000 from the Constitutional Research Council (CRC), a shadowy group led by Richard Cook, a former Tory candidate allegedly involved in illegal waste dumping. The ultimate source of the DUP’s Brexit cash has never been disclosed but much of it was spent with the same suppliers as Vote Leave, including an obscure Canadian data analytics firm.

Jolyon Maugham, the barrister behind the Good Law Project, said: “The Electoral Commission seems to think that because Vote Leave has been found guilty of one offence, legally it cannot be found guilty of another one. That is a profound misstatement of the law. And that’s bad enough. But even more troubling are its consequences.

“How many other times did the Electoral Commission fail to investigate because it didn’t think it was in the public interest for us to know? What else is out there that they wrongly closed their eyes to? How many other times did Vote Leave break the law?”

MPs have called on the Electoral Commission to look afresh at possible further breaches of electoral law by Vote Leave.

Labour MP Ben Bradshaw said: "I am extremely concerned that the Electoral Commission deemed it against the public interest to investigate this properly. It was the biggest donation in Northern Irish political history and we still do not know its true origins. Now that we know conclusively that Vote Leave broke the law by channelling money illegally to BeLeave, it is vital that the Commission reopens its investigation into this."

The elections watchdog has said that it was “not satisfied there is sufficient evidence for the Commission to have a reasonable suspicion that offences have taken place.”

The documents form part of the Good Law Project’s judicial review of the Electoral Commission’s investigation into the DUP. They also reveal that the party received more than £13,000 from the CRC after the Brexit vote, including £7,000 just days after the 2017 Stormont elections. In all, the CRC has given the DUP almost £450,000.

Working together?

In June 2018, BBC Northern Ireland’s Spotlight team aired a documentary that raised serious questions about whether Vote Leave and the DUP were ‘working together’, which is prohibited under electoral law. As openDemocracy has previously revealed, senior Electoral Commission staff at the time privately expressed ‘concerns’ that the DUP had broken the law, but decided not to investigate.

The bulk of the DUP’s massive Brexit donation was spent on a wraparound advert in the Metro newspaper just days before the European Union referendum. Spotlight journalists discovered that the advert, costing £282,000, had been booked directly by Richard Cook, not the DUP.

The Constitutional Research Council made a donation of £335,000 to the DUP on the very same day as the Metro advert was booked. Spotlight stated that the DUP’s Metro advert suggests coordination with Vote Leave because the ad was targeted “in London” and was published after “Vote Leave had reached its spending limit”.

In internal documents the Electoral Commission said that there were “a number of possible explanations for Mr Cook allegedly booking the DUP advert in the Metro”. Ignoring the Spotlight revelations, the elections regulator went on to say that it would not be “appropriate” to contact Metro to ask about the advert as “there is no evidence Mr Cook or the CRC directed or influenced the DUP’s spending, even [that] he had booked the ad”.

The Electoral Commission’s internal report noted that the CRC’s Richard Cook has had a chequered business history, including involvement in illegal waste and a questionable $80m contract to dispose of Ukrainian railway tracks that fitted the profile of money laundering. The watchdog said UK elections law “is silent on whether or not money obtained from crime would make a political contribution unlawful”.

The elections regulator also noted similarities in the DUP and Vote Leave’s spending. But again decided that there were no grounds to investigate.

The DUP bought Brexit election placards from a Cambridgeshire advertising company called Soopa Doopa. The company received combined spending from Leave campaigners of £800,000, the bulk of it coming from the official Vote Leave campaign.

The DUP also spent around £40,000 on social media with Aggregate IQ, an obscure Canadian data analytics company that has been linked to the controversial Cambridge Analytica. Vote Leave spent almost £3m with AIQ, much of it in the final days of the campaign.

AIQ’s chief Jeff Sylvester told Spotlight that his contact in the DUP was Belfast city

councillor Lee Reynolds. Reynolds was seconded to Vote Leave Northern Ireland during the Brexit campaign.

The DUP went on to pay AggregateIQ £12,000 as part of its March 2017 Northern Ireland Assembly election campaign. Over £3,300 of this was paid to AggregateIQ for services provided to the campaigns of three DUP candidates, while a further £8,600 was paid for services provided to the party.

Around the same time, the CRC gave the DUP just over £13,000. The CRC, which has never revealed its donors, also gave £6,500 to the pro-Brexit European Research Group of MPs in December 2016.

‘Real question marks’

Reacting to openDemocracy’s story Liberal Democrat MP Tom Brake said: "I would expect Government Ministers involved in law-breaking Leave campaigns to claim it was 'not in the public's interest' to investigate further possible breaches of the law, but not the independent Electoral Commission! We need our regulator to adopt zero-tolerance towards electoral law-breaking. Any whiff of cheating in referenda or election campaigns damages our democracy.".

Jolyon Maugham called on the elections watchdog to re-examine spending by other pro-Brexit groups: “We already know the High Court has profound concerns about the Electoral Commission’s investigation into the DUP. It has said it is ‘inevitable’ the Electoral Commission will have to reopen its investigation following a Court of Appeal hearing in July. And there are real question marks about its investigation into the relationship between Vote Leave and Veterans for Britain.”

An Electoral Commission spokesperson said: