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The Freedom of Information case relating to Scottish Labour leader Wendy Alexander's illegal donations scandal which was won last week by the Information Commissioner former has raised fresh questions about the circumstances surrounding the testimony given to the Electoral Commmission by Ms Alexander and her team. 

Comments given by the ruling judge also cast doubt on claims made by the Commission that it issued a statement to each witness suggesting their testimonies would remain confidential.

Last week a High Court judge ruled in favour of the Information Commissionerand and the Electoral Commission in a long-running Freedom of Information case. The ‘win’ was a pyrrhic victory for Alexander, and one that left the Electoral Commission’s credibility in tatters.

The case was brought by a Scottish voter, David Ferguson, and has been running for close to three years. It concerned an Electoral Commission investigation into the illegal donation received by Alexander’s Labour leadership campaign from Jersey businessman Paul Green, and the false attribution of the donation to a different, legal source.

Following the Electoral Commission’s investigation, it announced that an offence had been committed with regard to the receipt of the illegal donation, but that no prosecution would be brought.

It also held that it had found insufficient evidence to justify a prosecution for attempting to cover up the source of the illegal donation – a much more serious offence, which carries a mandatory sentence of a five-year ban from serving in any elected office. This was in spite of the fact that the Electoral Commission itself had been the recipient of a document that claimed that the illegal Paul Green donation had come from a Glasgow company called Combined Property Services – a legal source.

Subsequently, the Commission refused to provide any information at all to the public to explain its decisions.

Ferguson had asked the Commission to reveal the explanation provided by the Alexander campaign team for the false attribution of the Paul Green donation, but High Court judge Andrew Bartlett and two lay tribunal members held that the Electoral Commission was right to withhold the information on two grounds.

One was a procedural matter – That Ferguson had failed to demonstrate that he had sought legal advice about the possible redress that might be available if the Electoral Commission had failed in its duty to the public.

The second resulted from the tribunal’s interpretation of an obscure provision of the Data Protection Act under which data can be withheld from the public if it might cause distress to the ‘data subject’ – in this case Ms Alexander - irrespective of the importance to the public interest of disclosure.

Said Mr Ferguson: “The first matter is easily remedied. As to the second, it’s one of these instances where the law appears to be an ass. It encourages a politician to lie to the Electoral Commission.

“The bigger the lie, the greater the distress that would be caused if it were revealed to the public. And the higher the likelihood of distress, the stronger the claim under data protection to withhold the information from the public.

But this interpretation of data protection is dependent on a judicial ruling that has never been tested in the Supreme Court.”

The ruling will make particularly uncomfortable reading for the Electoral Commission. Throughout the FoI case, the Commission has invoked the Data Protection Act on behalf of the Alexander team, repeatedly claiming that it made a statement to each of them at the start of its investigation that would have led to an expectation that their evidence would not be revealed.

But Judge Bartlett could find no trace of the statement in any of the Commission’s evidence. His judgement stated:
“We found no trace of such a statement in any of the interview notes or in the correspondence conducted in the same time period as the interviews… the Commission did not record details of the making of (the statement), so that its precise wording is not available to us; nor were we told whether it was made before, during or after the interviews; nor is it known for certain to which interviewees it was made.”

Said Ferguson “This is bizarre. This ‘statement’ was one of the key pillars of the Electoral Commission case. It appears numerous times during their submissions, along with the claim that it was read out to the Alexander team. It is very detailed and very carefully worded, and yet the Judge could find no trace of its existence. There was a closed session in the Appeal hearing from which I was excluded, and that is when the matter must have come to light. I only learned that there is no evidence that the statement actually existed when I saw the Appeal Decision. What does the Electoral Commission think it’s doing?”

Nor will Alexander derive any great comfort from the fingertip nature of the ruling in her favour, which allows her to continue to suppress the information about why her team provided false information about the source of the illegal Paul Green donation.

In the course of the closed session of the Appeal hearing, Judge Bartlett had the opportunity to examine the explanation provided by the Alexander team for the false reporting of the Green donation. His ruling hardly represents a ringing endorsement of her case: “…in our judgment  the  release of [the explanation] would  risk placing the data subjects under a cloud of suspicion… where, as a result, undue distress would be likely to ensue.”

The finding begs a massive question. If Alexander and her team were guilty of no wrongdoing, and if the Electoral Commission did its job properly, then the explanation for the false reporting of the illegal donation ought to have been plausible and innocent. Why on earth would the release of a plausible and innocent explanation risk placing Alexander and her team under ‘a cloud of suspicion’? Why might it cause them ‘undue distress’?

Surely the opposite should be the case. Surely making a plausible and innocent explanation available to the public ought to remove any trace of suspicion that there was any wrongdoing.

Asked for a final comment, Ferguson replied: “Remember that iconic photo of a polar bear standing on its tiptoes on the remnants of a disappearing ice floe? I am giving careful consideration to appealing this decision.”

Last week Newsnet Scotland revealed that Mr Ferguson had been targeted by a senior Scottish Labour official in a failed smear attempt.  The full story can be read by following the links below.

Labour and the smear gone wrong

The Scottish media: What is the extent of Labour’s influence?

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