The Clown Prince of Communism

Does it matter whether Milo Yiannopoulos’ promotion of far right ideas was, as he claimed, just to discombobulate the grandparents? It won’t have mattered to those who found themselves facing the sharp edge of modern fascism: the terrorism, the racism, the removal of agency from women. And it didn’t seem to matter to those, like Robert Mercer, who funded him. But it did matter to Yiannopoulos. A coquettish flirtation enabled him to avoid the scrutiny that a full blown declaration would require.

We’re right to ask these questions of those who seek seismic change from the right – questions about their true motivations and about who funds them and about who benefits from an ‘ironic when convenient’ stance. We rightly ask them of institutions like Policy Exchange and the so-called Taxpayers’ Alliance and the so-called Institute for Economic Affairs.

But we’re also right to ask them of those who seek similar change from the Left.

Novara Media is the vehicle of the closest thing the United Kingdom has to a Milo figure – Aaron Bastani (shown below, sans clothing).

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His antics – recent examples include suggesting we nationalise Airbus to stop it leaving the UK in the event of a no-deal Brexit and describing the Poppy appeal as “white Supremacist” – have earned him regular slots on the BBC.

But what makes him worthy of interest is his stance on communism.

Bastani is the author of “Fully Automated Luxury Communism” (apparently to be published by Verso Books in June 2019) and Novara Media offers for sale such merchandise as a ‘Fangirl Femme Tote’ (“I’m literally a communist”) and a “Tracksuit Communism” top.

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And he and Novara regularly – in a style familiar to Milo watchers – express an ‘ironic’ support for communism. Indeed, he has made a conscious choice to position his support of communism thus.

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But although we know who funded Milo we don’t know who funds Novara. All we do know is that Novara has gone to extraordinary lengths – including apparent criminality – to keep its funding and ownership structure in the dark.

Novara is not a small operation. This is what the New Statesman reported in September 2017:

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Only a year later, in September 2018, Novara reported a more than 50% increase in the size of its core team and that some of those team were now paid.

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All of this will involve significant expenditure – Novara rents an office and studio in fashionable Peckham with associated operating costs, pays part of its enormous core team, pays writers and videographers, will pay web and database hosting costs, and so on.

Where does this money come from? Perhaps there is an entirely innocent explanation – but if there is it renders inexplicable the efforts Novara has made to avoid public scrutiny.

Bastani co-founded Novara Media in 2011 along with James Butler. The website www.novaramedia.com was registered in 2012. Between its founding and August 2016 there is little or nothing in the public domain about its ownership. In August 2016 Aaron Bastani started a company called Novara Media Limited (“NML”) with a single £1 share. In October 2017 the Registar, believing that the company was not carrying on business, wrote to NML. And on 9 January 2018 NML was dissolved. Did it ever actually conduct the Novara business? We have no way of knowing.

What about now?

In an email exchange with me on 24 November 2018, Aaron Bastani told me that the company which now had responsibility for Novara Media was Thousand Hands Limited:

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But Thousand Hands Limited was only incorporated in March 2018 with two members each guaranteeing liabilities of £1 each. Those two members are Craig Gent and Patrick Best who are also the only directors. Bastani denies being a shadow director of Thousand Hands Limited, declaring (with no apparent irony) that “the truth is out there”.

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It is not clear why neither of the co-founders (Aaron Bastani or Patrick Best) have any interest in Thousands Hands Limited, either as owners or directors. It is not clear who carried on Novara prior to March 2018. Indeed, there is very little evidence, apart from Mr Bastani’s say so, that Thousand Hands Limited operates it now.

At the time of the twitter exchange set out above, the Novara Media website contained only one reference to Thousand Hands Ltd, in its personal data policy:

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But at the date of writing, that reference has been removed.

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Someone, somewhere has taken a deliberate decision to obscure Thousand Hands Limited’s connection with Novara – if such a connection in fact exists.

Moreover, the site’s terms and conditions are made with “Novara Media” which has no legal existence and its cookie policy is also with the same non-entity. If you donate money to it, what shows up on your bank statement is a donation is treated as made to “Novara Media Coventry GB” which, again, has no legal existence.

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Its personal data policy, too, is with a legal chimera. And if you attempt to purchase something from Novara Media’s Online Shop, again, you appear to contract with the non-existent “Novara Media”.

This level of opacity is likely to involve significant illegality – if not criminality. I won’t run through those obligations in detail but most obviously the law imposes obligations on companies operating websites to disclose certain information. That obligation has been breached and, if Aaron Bastani told the truth when he said Novara was operated by Thousand Hands Limited, it is difficult to avoid the conclusion that a criminal offence has been committed.

Bastani reasonably asks, who funds organisations like the IEA:

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But isn’t it about time he came clean about Novara Media which is pushing change far more radical than the IEA? If he is to use Novara Media and the the national platform given to him by the BBC ‘ironically’ to push communism, should we not know who funds it and him?

Showing Parliament the Way Home

This morning six Scottish Parliamentarians and I return from the Court of Justice in Luxembourg to Scotland’s Highest Court, the Inner House of the Court of Session.

In Luxembourg we persuaded the CJ, in the face of opposition from our own Government, the EU Commission and the EU Council representing the 27 other Member States that the UK has the right, in accordance with its constitution, to withdraw the Article 50 Notice without cost. We are only now beginning to understand what a game changer the CJ decision is.

In purely neutral terms it puts another option on the table for MPs. But it also changes the political dynamics. Theresa May’s strategy is to run down the clock and seek to trap MPs between the devil of her deal and the deep blue sea of no deal. But this strategy is strategically holed because the CJ decision means MPs no longer have to choose between making political reality the PM’s personal conviction that what the people want above all else is to end free movement or the grotesque and unforgivable self-harm of no deal.

But there is still one question outstanding.

The CJ decision means MPs know what EU law requires – a decision to revoke taken in accordance with our constitution. But they do not yet know what our constitution says about how to revoke.

It is clear that two things need to happen. We need, first, to withdraw the A50 notice and, second, to change “exit day” in section 1 of the European Union (Withdrawal) Act 2018 (something which a Minister can do). But how do they happen?

On one view neither needs primary legislation. The PM can be compelled to withdraw the A50 notice and a Minister can be compelled to kick “exit day” sufficiently far down the road that it can be sorted out later in a legislative tidying up exercise by a binding motion of MPs. Let’s call this the Motion route. Some of the arguments for the Motion route are sketched here (in paragraph 13).

The other view – let’s call it the Legislation route – is that we do need primary legislation in order to undo what the Miller decision caused Parliament to do in the European Union (Notification of Withdrawal) Act 2017 and also the Withdrawal Act of 2018. The case for the Legislation route is made here.

But which is right? The Government itself has at different times advanced both the Motion route and the Legislation route.

But we believe, just as we believed MPs deserved to know what EU law requires, that MPs need to know what UK law requires. Forearmed with knowledge it is then for them to decide. A decision of this moment requires nothing less than clarity.

Neither route is especially technically difficult. I have set out below the text of a short Bill that it seems to me (please feel free to comment) would suffice were MPs to need to take the Legislation route.

But passing legislation should Government remain hostile undoubtedly requires more complex sequencing than a single binding motion.

So this morning we will respectfully ask the Inner House to let us finish what we started. We will ask it to set a short timetable for written and then oral arguments on which – the Legislation or the Motion – is the right route. If the Inner House agrees we are likely to adopt an amicus type stance in the arguments.

Of course, we do not know what position the Government will take. It may well be that it will just do what it did before the CJ – continue to stand on the silly pretence, in the face of political reality, that the question is purely hypothetical.

My own view, expressed with diffidence, is that the specific interrelationship between politics and the law that would come into play were Parliament to adopt the Motion route means it is likely to be sufficient. But best that MPs know for sure.

If you value the work Good Law Project does – work that most of our rather frightened establishment finds difficult to fund – you can support it here. Unless we secure adequate funding we are likely to be compelled to pull down the shutters.

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1.— Duty to revoke notification of withdrawal from the EU

(1) The Prime Minister shall notify the European Council of the United Kingdom’s revocation of its intention to withdraw from the European Union

(2) This notification of the revocation of the United Kingdom’s intention to withdraw from the European Union shall be made before the date on which the Treaties would otherwise cease to apply to the United Kingdom under Article 50(3) of the Treaty on European Union.

(3) The European Union (Withdrawal) Act 2018 is hereby repealed.

2. Definition clause

For the purposes of this Act ‘the Treaties’ means the Treaty on European Union and the Treaty on the Functioning of the European Union.

Judgment day

The Court of Justice of the EU yesterday put a number of questions to the Government’s advocate about the timing of the meaningful vote. (You can read my largely verbatim albeit incomplete note of the hearing here). Obviously the CJEU wanted to ensure that the Opinion – a non-binding view from a nominated judge on the Court – and subsequent binding Judgment would come early enough still to be relevant to those decisions.

Lord Keen, for the Government, explained that the so-called meaningful vote was expected on 11 December 2018 and if it passed a number of legislative steps would follow.

For what it’s worth, if forced to guess, I would anticipate an Opinion early next week and a Judgment after the meaningful vote.

But does any of this really matter?

It seems vanishingly unlikely that Theresa May’s deal will pass Parliament at the first time of asking. Even The Sun says she will lose by around 200 votes. Indeed, the truth is that this outcome has been inevitable ever since pro-Brexit campaigners welded two groups of voters (‘nativists’ who sought the protection of a more closed economy and ‘buccaneers’ who perceived opportunities in a more open one) with contradictory objectives into a false coalition for Leave. The only surprise is that it has taken two and a half years for this contradiction to be exposed,

And a number of consequences will follow from her defeat. But, in terms of timing, the most important is that there will be plenty of time for MPs to consider and digest the consequences of an Opinion and Judgment that are likely to confirm what five QCs instructed by the Government have already said, in the Government’s application for permission to the Supreme Court (at paragraph 38), namely, that Parliament can by a majority can direct the Government to withdraw the Article 50 notice.

Indeed, for those of us who continue to believe that the country’s best interests are served by Remaining in the EU, it may well be helpful if the Judgment comes after the so-called meaningful vote. It will only be then, when the country is looking down the barrel, after a crushing rejection of a deal that took years to negotiate, that MPs are likely to begin to focus on alternatives.

It is only then that they will engage, seriously, with revocation. It will only then become apparent to them that this is a simple mechanic that they control; that delivers a stronger economy than any alternative; restores the United Kingdom to its rightful place as a rule maker rather than a rule taker; has greater democratic legitimacy than either a buccaneer or nativist’s vision of our future; and, crucially, avoids the chaos of ‘no deal’.

The DUP, its dodgy donor, and how the Electoral Commission let them both off the hook.

This should shock you – but it won’t.

  • The DUP’s Treasurer, Gregory Campbell, gave an on-the-record interview to SourceMaterial. That interview was recorded and, assuming he told the truth, the shadowy Constitutional Research Council, which gave £435,000 to the DUP, looks to have broken the law
  • If Mr Campbell was telling the truth, both he and the DUP are also likely to have broken the law.
  • You might hope but you can no longer expect that the Electoral Commission would conduct a proper investigation into these facts but – as will be seen –  its investigation was at best cursory.
  • And it may well have misled the public in its statements about those investigations.

Four striking assertions. Made all the more striking when you bear in mind that, according to the BBC, £435,000 is the “biggest known political donation in history for a Northern Ireland party.”  Below I try and stand them up, mostly by reference to documents that I am able to publish. But occasionally by reference to other materials I can vouch for.

But first let me explain that we are concerned with two sets of rules. The first is about transparency – the general rule that we should know who is buying democratic influence. This is the rule that I believe the CRC infringes against. The second is about who is allowed to buy democratic influence – and this is the rule that I believe the DUP infringes against.

Has the Constitutional Research Council broken the law?

The DUP, a Northern Irish political party, received a donation of £435,000 from the CRC and went on to spend £282,000 of that sum advertising in London’s Metro, outside of Northern Ireland.

Following the Good Law Project’s success on Friday in its High Court action against the Electoral Commission we know that if a donor (here the CRC) controls the use to which a donee (here the DUP) spends money that donor will incur referendum expenses which will go towards its spending limit.

Here is how the High Court put the matter (para 81):

“If… money (i) is paid directly by the donor (by agreement with the donee) to discharge a liability of the donee to pay for goods or services falling within Part I of Schedule 13 of PPERA or (ii) is paid pursuant to an agreement to pay or reimburse the donee for the cost of such goods or services purchased by the donee, or (iii) is given on terms (binding on the donee) that it is to be used to purchase or pay for particular qualifying goods or services, then the expenses incurred in making such a “specific” donation are appropriately regarded as incurred “in respect of” a matter falling within Part I of Schedule 13 of PPERA and hence as “referendum expenses”.”

This is little more than common sense, really, because otherwise you could avoid the transparency limits by channeling your expenditure through someone else.

The Political Parties, Elections and Referendums Act 2000 says that you cannot incur referendum expenses of more than £10,000 unless you are a permitted participant. To be a permitted participant you have to register. The CRC did not register.

So the missing link is whether the CRC controlled the use to which the DUP put the donation. If it did the CRC will have broken the law. Did it? The answer to that question seems abundantly clear.

First, why would the DUP want to spend £282,000 on a Metro advertisement in London. Why would a Northern Ireland political party do that? Instead of spending it on its own concerns in Northern Ireland? Would the DUP really have spent that amount of money on an advertisement in England had it not been obliged to do so? For scale, £282,000 is more than twice the DUP’s declared party level spending in the last three general elections combined.

Second, the BBC Spotlight programme asserts that Richard Cook, the Scottish Chair of the CRC and not involved the DUP, booked the advertisement on which the DUP claims to have spent £282,000.  I understand it was not contradicted either by the DUP or Richard Cook. This is strongly supportive of the notion that the CRC controlled the use to which the ‘donation’ was put.

And, third, in an on-the-record recording of the SourceMaterial interview, the DUP’s Treasurer himself says that the CRC controlled the use.

“For example the Metro money, it’s very straight forward, we got an amount of money to use as an advert in the referendum campaign, we used it to the purpose it was given and accounted for it after we had spent it. Nothing hidden about that.  The advert had said who had put the advert on, i.e. the Democratic Unionist party and we declared it within the time scale we were required to do so afterwards. So there is nothing secretive about it.”

If the DUP’s Treasurer was telling the truth it is hard to escape the conclusion that the CRC has broken the law by failing to register as a permitted participant.

There are a number of reasons why this matters.

By enacting the legislation Parliament was saying it is important that we know who is buying influence in our democracy. The sum of money spent on the Metro ad was a very substantial one. And the sum was spent in a very unusual way – channeling expenditure on an advertisement in England by an organisation with links to the Scottish Conservative Party through a Northern Ireland political party – presumably to take advantage of strict secrecy laws that enable a donor to a Northern Ireland party to escape public scrutiny.

It is impossible to imagine that this was what Parliament intended the law should permit – that donations connected with spending in England should escape public scrutiny. If the CRC had placed the Metro ad directly it would have had to register as a participant and disclose its donors. Should it really be able to escape that obligation by funneling it through the DUP? In the circumstances, there really ought to be very close scrutiny of whether an apparent attempt to squeeze through a technical loophole to achieve a counter-purposive result – a ruse – succeeded. As I have set out, I think it reasonably clear that it did not.

And has the DUP broken the law? 

Broadly speaking, section 54 of the Act imposes a requirement on those receiving donations to check that the donor is a “permissible” donor. And section 56 of that Act makes it a criminal offence to keep a donation where you do not know whether the donor is a permissible donor. Here is how the Electoral Commission characterised the DUP’s duty – in a letter to the DUP.

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Did the DUP carry out that duty?

Here is what the DUP’s Treasurer, Gregory Campbell, told SourceMaterial in an on-the-record interview (I hold a copy of the recording).

“Q. The organisation was the constitutional research council… so who are they, apart from your man that was in the papers
“A Presumably they are right of centre pro leave the EU [my emphasis].”

He is asked:

“Q. Had you heard of the CRC before they came.
“A. I haven’t heard of it before and I haven’t heard of it since. It doesn’t make any difference. The important people are the Electoral Commission… And who are the people whose duty it is to monitor and regulate these things? The Electoral Commission. It’s their verdict that counts. Not what you think, or what I think, or what somebody else thinks [my emphasis].”

And he says (48m)

“How would I or anybody in our party be expected to know who the individuals are that are involved in the organisation? Why would it be my business to find out?

And he says (45m)

“If the Electoral Commission had come back said there is something I’ve missed here, I would say ‘Right guys, where did this money come from?’ or ‘Who gave it to you?’.”

But section 56 of the Act imposes a mandatory obligation on the DUP to verify the identity of the donor and check whether it is a permissible donor. And, looking at the comments made by the DUP’s Treasurer, and taking them to be the truth, it is hard to see how that obligation was carried out.

So why does this matter?

Parliament has seen fit to legislate to prevent foreign interference in our democracy.  It does this by placing responsibilities on donees to check that donations they receive are from permissible sources – and those responsibilities are backed by the criminal law. This was a very substantial donation – apparently the largest in Northern Irish history. And, unless its Treasurer was lying, the DUP seems completely to have ignored the responsibilities placed on it by Parliament.

What investigation did the Electoral Commission carry out into the DUP’s acceptance of the donation?

Very shortly after the broadcast of the BBC Spotlight programme that revealed that Richard Cook had booked the Metro ad the Electoral Commission wrote to the BBC asking it to provide all information relevant to breaches of the Act.

On 17 July 2018 the BBC replied and, I understand, set out amongst other materials the exchanges with the DUP’s Treasurer contained above.  I understand that the Electoral Commission did not ask the BBC – or SourceMaterial – for a copy of the recording on which that segment of the programme was based.

And, from the correspondence, it looks as though the Electoral Commission had decided not to investigate whether the DUP had broken the law even before it received the BBC’s response. We know from the Electoral Commission’s reply to the BBC that the BBC responded on 17 July 2018.  But it was several weeks earlier, on 27 June 2018 the day after the Spotlight was broadcast, that the Electoral Commission wrote to the DUP. And it didn’t ask the DUP about the recording – or about what due diligence the DUP had undertaken. It didn’t even pretend to consider opening an investigation. It simply said that the comments were a “sufficient cause of concern for me to write to remind you or you (sic.) legal obligations.”

If you read the final paragraph of that letter it is abundantly clear that the letter was written to aid the DUP’s understanding. The Electoral Commission was not contemplating an enquiry into whether, as the DUP’s Treasurer had suggested, the Party had ignored its obligation to do due diligence in relation to the largest known political donation in Northern Irish history.

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And the Electoral received this unapologetic response from the DUP which asserted that what was broadcast was used “out of context” and “in an attempt to convey an incorrect impression” and went on to say:

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But, again, the Electoral Commission did not ask the BBC or SourceMaterial for a copy of the interview.

The Electoral Commission then replied to the BBC on 2 August 2018 saying:

“we reviewed the information you provided… Our conclusion is that we do not have grounds to open an investigation into the allegations about breaches of electoral law in the BBC NI Spotlight Programme.”

However, the sequence of events set out above suggests that the Electoral Commission did not review the information the BBC provided before concluded not to open an investigation. The evidence is that it never had any intention of considering an investigation, irrespective of what evidence the BBC provided. Because the Electoral Commission wrote to the DUP ‘reminding it of its obligations’ (and doing no more) before it was provided with the evidence it had requested from the BBC.

I do not find it easy to understand how the matters set out above under “Has the DUP broken the law?” do not give rise to grounds to open an investigation. But I find it very difficult indeed to understand how the Electoral Commission could apparently properly conclude, before reviewing the evidence it had requested, that an investigation into the DUP should not be opened.

Has the Electoral Commission made misleading statements?

How did the Electoral Commission present the exercise it carried out?

Here is what the Electoral Commission said to Ben Bradshaw MP:

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What about the first of these highlighted sentences. Did the Electoral Commission carry out a “thorough assessment of  the allegations made in the programme”? In relation to the question whether the DUP broke the law the evidence suggests that the Electoral Commission had already decided to take no action before receiving the evidence. As to whether the Electoral Commission “considered whether there were other sources we could locate to evidence the allegations made in it”,  I have been told in writing by Source Material and the BBC that the Electoral Commission did not request the recording of the interview with the DUP’s Treasurer.  And there is no suggestion that the Electoral Commission asked Metro’s publisher for a copy of the purchase order for the advertisement to see who booked the Metro ad or where the money came from to pay for it or whether the booking pre- or post-dated the date of the donation.

The Electoral Commission also made a similar statement to the public via this Press Release:

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It is fair to say that the principal focus of this statement is on whether Vote Leave and the DUP were “working together”. But that issue was only one of the “allegations made in [Spotlight]”. Spotlight also asked the question set out above: “Did the DUP do enough homework into the financial background of their biggest donor?” (at 1.40 and then at 22.50) and broadcast certain of the extracts of the interview set out above under the heading above. And I understand that the Electoral Commission’s initial enquiry of the BBC was not confined to “working together” but asked for all information relevant to all PPERA offences. But, as I explain earlier, the Electoral Commission appears to have made the decision not to investigate the DUP before receiving any of the BBC’s evidence.

In the circumstances, it is hard to see how the Electoral Commission can properly suggest (see third sentence of the Press Release) that the decision not to investigate the DUP followed the BBC’s response.

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These are very serious matters concerning what our national broadcaster has described as the “biggest known political donation in history for a Northern Ireland party”; they concern a Political party in a de facto Coalition Government; on their face they disclose law breaking and possible criminality; they appear (once again) to have been whitewashed by the Electoral Commission which appears to have closed its eyes to the evidence – and made statements to MPs and the public which are apt if not designed to mislead.

The Good Law Project – which I founded – is crowdfunding to take these matters to court again. Please, if you value our democracy, donate here.

Electoral Commission Judicial Review – Resources for Journalists

High Court Decision Decision at paragraphs 94-95:

“For the reasons given, we conclude that the Electoral Commission has misinterpreted the definition of ‘referendum expenses’ in section 111(2) of PPERA. The source of its error is a mistaken assumption that an individual or body which makes a donation to a permitted participant cannot thereby incur referendum expenses. 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.

“The email communications which we summarised at paras 12-20 above show that Vote Leave made each of the AIQ Payments (totallying £620,000) at the request of Mr Grimes for the agreed purpose of paying for advertising which Mr Grimes ordered from AIQ. We see no reason to doubt that the payments were, as they were said to be, donations made by Vote Leave to Mr Grimes to meet referendum expenses which he incurred by purchasing advertising services from AIQ. But it is also clear that, on the proper interpretation of the statutory provisions as we have analysed them, Vote Leave “incurred expenses” by making the payments, that those expenses were incurred “in respect of” advertising (one of the matters listed in Part 1 of Schedule 13 of PPERA) and that the expenses were incurred “for referendum purposes” wirthin the meaning of section 111(3) of PPERA. They were therefore “referendum expenses” as defined in section 111(2) of PPERA irrespective of whether they were also “common plan expenses” within the meaning of para 22 of Schedule 1 of EURA, as the Electoral Commission has now found.”

So the Electoral Commission – the body charged by Parliament with ensuring the Referendum was properly managed – actually misunderstood what its duties were.

But what does this mean in practice?

(1) Dominic Cummings said they received “extremely surprising” advice from the Electoral Commission that they could donate money.

Deleted tweets from Dominic Cummings: Dominic CUmmings

(2) You can see the advice relied upon by Vote Leave given by Kevin Molloy of Electoral Commission on 20 May 2016: see Matthew Elliot’s witness statement at paragraph 4 and Kevin’s email exhibited thereto (see paragraph 2 of his email). (Note the words in paragraph 2 “without having a co-ordinated plan or agreement”).

(3) Following the receipt of that advice Vote Leave donated £625,315.18 to Darren Grimes (link to Electoral Commission database) and £100,000 to Veterans for Britain (link to Electoral Commission database).

(4) But there is no suggestion anywhere that the Electoral Commission gave that unlawful advice to Stronger In. And Will Straw – its Director – has confirmed that had it known it would certainly have made donations.

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(5) Stronger In (along with Vote Leave) was also bumping up against its spending caps.

Aggregate declared spending of Vote Leave: £6,742,466 (Electoral Commission database link).

Aggregate declared spending of Stronger In: £6,769,800 (Electoral Commission database link).

(6) So the Electoral Commission, charged by Parliament with ensuring the referendum was fair, unlawfully tilted the playing field in favour of Vote Leave.

 

Quote from Jo Maugham QC: Director of the Good Law Project

“What is now clear is that the Electoral Commission unlawfully tilted the playing field in the Referendum. It was won on points by a crooked fighter aided and abetted by a hapless umpire.

“The Good Law Project is grateful to its awesome legal team and to those who backed the litigation.”

Other Key Resources

Witness Statement of Matthew Elliott in the Judicial Review: WS

Spending by Vote Leave Limited, Darren Grimes, Veterans for Britain and the DUP with Aggregate IQ (Electoral Commission database link).

Skeleton arguments and formal pleadings are collated here.

Other formal documents can be found here.

Lawyers shouldn’t be robbing the vulnerable of their rights

The law touches all aspects of our everyday lives. But rarely so crucially as in the key relationships we have with others – with the landlord we pay for shelter, the employer we rely on for our income, the grocer from whom we buy food.

To them the law says, “you have freedom to contract – but only so far.” For you work you shall be paid a minimum wage. Your landlord cannot turf you out of your home on a whim. You will be protected from food that is not safe to eat.

But it’s never that simple of course. Legal protections created in theory are often found wanting in practice. What use is a right unless we know it exists? How can we assert it when confronted with a powerful and obdurate counterparty? Is the law strong enough to cause the counterparty to care whether he breaks it?

Sitting on my desk is a contract between a major passenger transportation firm – I will not name it – and the drivers it uses. It imposes an obligation on drivers to indemnify the firm against the obligation to pay minimum wage or national insurance contributions.

Think about that for a second. The obligation to pay minimum wage is the firm’s. So too the obligation to pay employer’s NICs. The law is clear these obligations cannot be transferred. But still the contract pretends that, if the driver asserts the protections Parliament has given to him, the cost will fall on him. Along with the firm’s legal costs of resisting the assertion. And of meeting and defending any action brought by the Government. A failure to pay minimum wage can carry criminal sanction – and the contract also puts the cost of defending that prosecution on the driver.

And clauses enacting a pretence are not uncommon. Assured shorthold tenancies – the most common type of tenancy agreement for those obliged to rent from private sector landlords – frequently pretend the landlord has a power to terminate a lease which ignores the protections given to tenants by the Housing Act 1988.

When drafting contracts for the powerful which regulate relationships with ‘normal’ people – in leases, in consumer contracts and, most often, in contracts with workers – lawyers insert clauses that are not merely unenforceable but which they know to be unenforceable.

Why?

Not because they lawfully protect that lawyer’s clients. The fact they are unenforceable means they offer no legal protection. They are drafted for a different purpose. Their aim is to trick those who do not know the law. They attempt to fool the unsophisticated into believing they do not have the rights Parliament has given them. Their purpose is to undermine the rule of law and to thwart statutory protections.

But solicitors have a professional obligation to “uphold the rule of law and the proper administration of justice” and “to act with integrity”. Barristers similarly have obligations to “act with honesty and integrity” and to “not knowingly or recklessly mislead or attempt to mislead anyone.”

For myself, I do not see how the drafting of an unenforceable clause in a contract with a counterparty who is a regular person can be said to be consistent with these obligations. This practice has gone on for too long – it is time for regulators to remind lawyers of their duties.

[This piece was first published by The Times on 19 July 2018].

Six thoughts on Labour and Brexit: a shadow Minister responds

Paul Blomfield, Shadow DExEU Minister, emailed to a constituent this response to my criticism of Labour policy on Brexit. He has indicated he is happy for it to be made public. I don’t intend to respond to it here. My views remain as expressed. But it is obviously desirable, in a week in which support for Labour amongst those who voted Remain in 2016 has dropped 7% (figures here and here), that Labour does its best to address perceptions it is now the party of Hard Brexit.

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I campaigned tirelessly for a vote to remain in the European Union and was bitterly disappointed by the result. However, for the reasons I outlined on Saturday, I accept the result of the referendum and see my role as preventing an extreme Tory Brexit. In the sense that the referendum was, like all referenda in the UK are, advisory, Mr Maugham is right that Labour made a choice to respect the result. I do not pretend that I think that Brexit is a positive thing for the country, however, I fear that there would be serious detrimental impacts for faith in our democratic institutions if we were simply to ignore the referendum result and I believe we must mitigate the damage as much as possible. I believe that we should remain as closely allied to the EU as possible and made that point in an article for the Yorkshire Post.

As regards his argument that we should challenge it on grounds of validity. I have been following the allegations about Russian interference in the election and have challenged lies about Brexit, both during it and those made by the Government since it. If a breach of electoral law is found to have occurred, the appropriate sanctions should be taken, of which the rerunning of the vote is not one. Any misuse of data is a serious breach that must be investigated and dealt with, but it does not necessarily follow that they affected the referendum result.

I do not accept his rather strained argument that Theresa May wants a softer Brexit and Jeremy Corbyn wants a harder Brexit. Even he goes on beyond his top line to elaborate, saying that he means in comparison to party members’ and MPs’ wishes. It is not right to say that there is ‘no meaningful difference between the outcome being sought by the Conservative and Labour parties on Brexit’. He also says: ‘Both want to trade with the Single Market. Both want to be free to make their own trade policy in a manner that rules out a customs union.’ Firstly, it is not true to say we do not want a customs union. On the contrary, in February Jeremy Corbyn set out our vision of a comprehensive customs union with the EU replicating current arrangements. This is in direct contrast to the Government. I spoke about this recently, which you can read here. Moreover, it is somewhat misleading to suggest that our stance on the Single Market is identical to that of the Government’s. We have made clear we want the closest possible relationship with the Single Market, accepting jurisdiction of the CJEU and seeking continued membership of the agencies and programmes we have built together over forty-five years. Therefore I strongly challenge his sixth point that “Labour has chosen not to push for a softer Brexit.”

He goes on to argue that, in our attempts to secure a meaningful vote for Parliament, we have “consistently refused and refuses to say what it would do with Parliamentary control […] It offers nothing”. As you can see from these speeches on the amendment that my colleagues, Matthew Pennycook, and Shadow Secretary of State, Keir Starmer, have made on it, our position was that, in the event that Parliament rejects the deal on offer, it should be for Parliament to determine the next steps, whatever they may be. I do not think it would be wise for us to commit to a certain path at this stage, when we don’t know what the final deal will look like. We have been clear that we would vote it down if it does not meet our six tests. He guesses that we would seek to force a general election and that may come to pass but, due to the Fixed-Term Parliaments Act, an early election can only take place before 2022 if at least two-thirds of the House votes for one or if a motion of no confidence is passed and an alternative government is not confirmed by the Commons within fourteen days.

I do not follow his argument, “Labour cannot win its battle with its Remainers”. I agree that the party membership has a vital role to play and Conference is the policy-making body of the party. I have taken part in a number of meetings like that on Saturday and I have visited a number of CLPs to discuss our policies with members and want to ensure members’ views influence and shape our policy. That is how we can ensure that members have a “real say, the final say in deciding on the policies of our party”, as Jeremy said.

I hope that I have demonstrated why I disagree with the author’s view that we are pursuing a hard Brexit and that, on the contrary, we are actively opposing a disastrous Tory Brexit and a ‘no deal’ scenario and, if we were in Government, we would be seeking the closest possible relationship with the EU as partners, if no longer as members.