What follows is a blog post written by leading public law solicitor, John Halford of Bindmans LLP. John is one of the large team instructed from this piece of crowd-funding (from which the blog emerged). The post is written primarily for members of the public but I hope it contains sufficient legal analysis to enable lawyers, too, to engage with its content. If you’re a lawyer and you think it’s wrong, please do say so and why. I asked John to write it because I think it is important that, where at all possible, this exercise be conducted with maximum transparency and engagement with the public.
We are a small team, most of us working for a small fraction of what we usually charge. (I, of course, am working for nothing.) If there are people out there who are capable of researching links between Vote Leave and other campaigning groups – and there is certainly strong evidence that Vote Leave intended to break spending limits – we would be grateful to receive the fruits of that research. If there are people out there who would like to fund that research I would be grateful to hear from you.
As to the remainder of the crowd-funding work, we will write to the Government later this week putting the legal case for Article 50 to be triggered by Parliament and we will publish the letter on this site.
Jolyon MaughamFollow @jolyonmaugham
Uncovering the smoking cannon: can anyone be held accountable for untruths told and overspending during the EU Referendum campaign?
In the aftermath of the EU Referendum, many have expressed the view that the outcome would, or at least could, have been different had the Leave campaign being conducted differently. It has also been suggested that there may have been overspending in breach of the strict rules for Designated Organisations, which receive a public subsidy for their campaigns, and by other campaigners. What, if any, remedies does the law provide? There will be few lawyers have not been asked this question over the last week but the answer is not straightforward.
The starting point is the European Union Referendum Act 2015 which lays down the framework within which the Referendum was conducted. In contrast to election statutes, it includes a petition mechanism for the result to be set aside. The Act briefly mentions that judicial review claims in respect of the Referendum have to be brought within a truncated six-week time period, but says nothing about the basis of such a claim. The fact judicial review is recognised on the face of the Act as a possibility must mean Parliament contemplated such a claim being brought in certain circumstances. What might they be?
Judicial review claims are essentially concerned with the legality or procedural fairness of the decisions or actions of public authorities. Plainly, members of the public cannot be challenged in this way regardless of how they vote or why. Democracy allows an irrational vote to be cast and values equally to one cast by the voter who has conscientiously taken account of all relevant considerations. It is also clear that some significant procedural irregularity on the part of returning officers or other public officials that would have made a difference to the outcome could be the subject of judicial review claim. But as regards this referendum, a sufficiently egregious and large scale error by officials would almost certainly have come to light by now.
Campaigning on the basis of false or misleading statements is nowhere mentioned. That suggests, in the face of things, that however unethical it may be, it is not prohibited. That might be thought surprising, particularly when at least one Leave campaign assertion – the £350 million per week savings to be made as a result of Brexit – was identified as misleading by public and private organisations, but nevertheless sustained.
There is no real prospect of the courts reading in a duty not to knowingly or recklessly make such statements during a referendum campaign into the Act, less still to enforce it by making a ruling that would force a second referendum to answer the same question put to voters. That is primarily because Parliament has fashioned a limited and narrow obligation to tell the truth to the electorate in the context of general elections, but did not choose to impose a similar obligation during referendum campaigns. The election duty is found in section 106 of the 1983 Representation of the People Act which provides:
“A person who, or any director of any body or association corporate which—
(a) before or during an election,
(b) for the purpose of affecting the return of any candidate at the election,
makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true.”
Even had this appeared in the 2015 Act, and it does not, the obligation does not extend to statements about policies or consequences and indeed the courts have expressly recognised that there is no accountability at law for such statements: see Gibson J in The North Division of the County of Louth (1911) 6 O’M and H 103 at page 163 (approved of in what is now the leading case, R (Woolas) v The Speaker of the House of Commons  EWHC 3169 (Admin)). The European Convention on Human Rights provides no help either. Free and fair elections are guaranteed, not so free and fair referenda.
Other legal and regulatory remedies would not affect the outcome of the referendum. If, for example, a campaigner were successfully prosecuted for incitement to racial hatred or some other public order offence, the referendum result would be unaffected. The same is true of complaints that might be made relying on the codes which regulate the conduct of Ministers, Members of Parliament and MEPs. Political speech is specifically excluded from the regulatory regime for advertising.
The position on overspending might be different, however. If there were compelling evidence of the spending limits set down in the 2015 Act being contravened, either by a Designated Organisation, or one or more other campaigners, the Electoral Commission would be able to investigate and even has powers to hold an inquiry. But the deadline for reporting campaign expenditure expires in December, many months after a direct challenge to the outcome of the referendum would be possible based on the findings of a Commission investigation. In theory then, if there was the most egregious breach of the referendum expenditure rules that could be shown to have materially influenced the outcome, the courts just might be persuaded to intervene now by way of judicial review. At present, there is no real evidence the rules were breached in that way. If there is a smoking cannon, it remains hidden.
It follows that the remedy for concerns about the outcome of the referendum having been distorted is almost certainly a political, rather than a legal, one. Political because the referendum advises Parliament of the views of those who voted in it, but does not oblige Parliament to withdraw the UK from the EU at all costs. And when deciding what to do next, MPs and peers can certainly take into account the extent to which those they represent, whether Leave or Remain voters, were misled if there is compelling evidence of that having happened. Similarly, if members of the public have evidence of expenditure irregularities, that should be brought to the Election Commission’s attention urgently as it may be able to investigate and advise parliamentarians before a decision to evoke Article 50 of the Lisbon Treaty is made.
Extraordinary that promoting lies is not a criminal act for a referendum, but is for an election. What were legislators / parliamentarians thinking?
Re the issue of spend. If the limit was £7m ( http://www.thetimes.co.uk/tto/news/politics/article4692310.ece) the Leave campaign raised between £8.2m (from a BBC post in May) http://www.bbc.co.uk/news/uk-politics-eu-referendum-36267668 and £13m, depending if all or some of the £5.2m given by Arron Banks mentioned in this Guardian article http://www.theguardian.com/politics/2016/jun/29/leave-donor-plans-new-party-to-replace-ukip-without-farage was excluded in the BBC’s £8.2m
Furthermore, it would seem very unlikely that out of £8-13m in donations, the Leave campaign only spent £7m in total, and under 700k in the final two months.
I would like to know how much Leave spent on Paul McKenna, the hypnotist, who ostensibly was not drawing on any of his skills in manipulating / hypnotising people, and how much they spent on Dominic Cummings, of ‘Accuracy is for snake oil pussies” notoriety ( http://www.theguardian.com/politics/2016/apr/20/accuracy-is-for-snake-oil-pussies-vote-leaves-campaign-director-defies-mps )
The Remain campaign is on safer ground, having only raised £7.5m – however there is no guarantee that the Remain campaign did not spend that extra 500k, and also was under the 700k in the final two months.
From my perspective, there does seem to be serious likelihood of overspend by Leave, and the Election Commission should fast track an investigation.
This strikes me as yet another example of people who don’t like the result of a free and fair election (on a high turnout) slinging mud in the hope that some of it will stick. Remain’s official spending was the tip of the iceberg. Cameron after all spent a large amount of public money on the Remain cause and made a complete mockery of civil service neutrality and purdah. Judging by the police investigations into Tory and Labour spending in the 2015 election, none of this underhand behaviour should come as a surprise.
And when it comes to misrepresentations and exaggerations, George Osborne and his sidekick Mark Carney seemed to be doing a brisk trade in those…..
“I fear that Brexit could be the beginning of the destruction of not only the EU but also of western political civilisation in its entirety.”
Did Wetherspoons production of a special edition of its magazine arguing the case for Brexit, breach any law?
Those who claim that the result of the Referendum is immutable are ignoring the fact that democracy creates ever-changing and evolving outcomes. For example, just because male homosexuality was once legislated to be illegal doesn’t mean that that couldn’t be changed for the better once attitudes, and the legislation they reflect, have developed.
And so it is with Brexit. As the misinformation pedalled by the Leavers becomes apparent and the detrimental affects of quitting the EU manifest themselves, it would be positively undemocratic not to allow the people of Britain to express their views.
Only dogmatists and zealots refuse to think again when circumstances change.
I don’t know who you are but i love you. The feeling of sheer impotence as i watch what’s going on is overwhelming. To know that you are using your skills as a lawyer and engaging others who are working at a fraction of their normal fees is helping restore my faith in humanity. Really.
So thank you and everyone else. I guess there’s nothing i can do to help but will if i can and i am working tirelessly to talk with people and spread sense in the Un-United Kingdom.
What a dreadful statistic to be announced today that there is a 42% increase in hate crime versus the same time last year. Dreadful. Didn’t people die to stop tyranny and hatred and create a united europe?
BIG LOve to all, Pete
Great work. Pity that such blatent lies are legal. But could a civil action be brought against any of the leading Brexiters for losses (financial or otherwise) incurred as a result of their misrepresentations?
I’d love to help researching the overspending but would need some pointers. I have no special knowledge or contacts.
Didn’t David Cameron and the remainers give us large helpings of misinformation too?
He put letters through everyone’s door and verbally assured the country time and time again that he had secured a legally binding negotiation with the EU.
By all accounts, it wasn’t legally binding at all was it?
Many thanks for all you are doing. I still find it hard to believe that what was essentially a protest vote against Tory government policy has turned into an act of national suicide. History will judge Cameron very harshly for his weak and ill-conceived attempt to placate the small number of Euro-sceptics in his party and those worried about leaking votes to UKIP. It will judge even more harshly the leaders of the Leave campaign who not only lied to the public but had no shame reneging on their promises as soon as the result was announced.
I’m sure there will be plenty of Brexiteers who will condemn you for what you’re doing – lawyers are easily demonised – but in a democracy politicians must be held accountable. We are in very dangerous waters, thank you for taking on the sharks.
What does John think about the misconduct in public office argument?
Northern Ireland is the only part of the U.K. which doesnt have on line registration and postal vote and, when the on-Line system went down and the deadline was extended, NI was not included in the deadline extension. Could this be seen as unfair discrimination.
A simple (silly?) question from a layman: the European Union Referendum Act doesn’t set a percent threshold (either of those voting or of the electorate) above which the result is deemed to be definitive one way or the other so why is it being assumed the threshold is 50%? Does a simple majority have to be the default?
I did not realise I had voted in an act of national suicide. I just thought it was a free and fair election where every vote counted (for once!) On a high turnout. And had the result gone the other way, we would of course be told that the question was closed for all time.
Actually Farage said that if the result was 52/48 the question wouldn’t be closed.
I am not that interested in what Farage said, despite his status as pantomime villain of the Islington intelligentsia. However I know exactly what Remain would have said had the vote gone the other waym
Farage has previous form as being a sore loser. He is not an MP.
Now about those lies told by the Remain campaign – how about on Norway “They pay, obey, and have no say”? There are plenty more.
Or how about the lies being told after the result – how about “it is impossible to view the referendum result as anything other than a rejection of free movement in its current form”.
I would like to think the legal profession, or at least those who are readers of this blog would be considering equivalent challenges to the result if it had been won by Remain, but am desperately unconvinced.
Are you implying that the aphorism about Norway (which is a new one on me, but, hey…) “They pay, obey, and have no say” is a lie? In what way is it not essentially true? Ditto Switzerland.
The Daily Telegraph says, “Norway, along with Iceland and Liechtenstein, joined the European Economic Area (EEA) – an association of all 27 EU member states, plus the three non-EU members, which are all governed by the “Four Freedoms”: the free movement of goods, services, persons and capital.” You can’t have any without them all.
And are you suggesting that the vote was NOT a rejection of free movement? If you think that, I can only suggest you don’t have much contact with working class people in the Midlands.
And why would you doubt that there would have been legal challenges if the (advisory) referendum result had gone the other way? Could it be because there would have been no legal arguments similar to those shown here? Just out of interest, what might they have been? There’s no doubt that the legal arguments against any PM being able to enact the provisions of Article 50 are pretty compelling.
“Only dogmatists and zealots refuse to think again when circumstances change.” Says L Porter on 8 July.
Indeed. And what terms are appropriate for those who deny the result of a free and fair referendum less than a fortnight after the votes have been counted?
Ironman asks, “what terms are appropriate for those who deny the result of a free and fair referendum less than a fortnight after the votes have been counted?” It’s probably true to say that I am a zealot in terms of wanting (in general) for people to live and work together rather than against each other.
But the point I am making is that circumstances really have changed. It was admitted by leading Leavers, immediately after the referendum, (ironically, the ones that have now quite literally left!) that many of their promises were not true. That includes the ‘missing’ £350 million and free trade without free movement of people, to mention the most egregious of them. Moreover, although some of the Remain claims were blatant scare-mongering, many of them are coming to pass, in spite of the Leavers denials.
In the light of changed circumstances, it is entirely reasonable that Parliament (in the first instance) should think again. If it was true that we would be £350 m per week better off and that we could have free trade without free movement (if that’s what’s wanted) then the result would be valid. We can’t. So it isn’t. Not without further consideration, at least.
If you are a zealot in terms of wanting people to live and work together, then you should be having very serious doubts about the economic and humanitarian crisis in the Eurozone; the serious adverse effects of mass uncontrolled immigration on the poorest people in the UK; and the EU’s apparent desire to poke Russia with a sharp stick over the Ukraine.
Any man who so shamelessly stirred xenophobia ought to be your villain as well, Michael. Or do you agree that they’re coming over here and taking our jobs etc etc?
Michael, thank you for your thoughtful reply. I do have the concerns you mention; every one of them. But, at its simplest, you can’t hope to help solve those problems if you’re outside the tent, pissing in. In other words living and working together involves confronting shared problems, not imagining that you can somehow hide from them.
Had Remain won with the campaign it ran I would probably have been silent. I wouldn’t, however, have minded a second referendum even if I thought it a waste of time. There are worse wastes of time and public money than having two votes on so momentous an issue.
If, however, it transpired that the campaign had been run by the fathers and mothers of all liars, that almost nothing it said was true, that my problems were not going to be solved by following their advice and believing their promises, then, well, I hope I would have the decency to insist on a re-run
Lindsay, thank you for your comments. I am afraid that I no longer believe that being within the tent makes a difference. In particular I am appalled at the way in which Europhile “progressives” have washed their hands of the economic and social damage done to Mediterranean countries by the Eurozone. Port Talbot is Mayfair compared to large parts of Greece and Italy.
Martin, unless the laws of supply and demand have been suspended in the labour market, mass uncontrolled immigration is bound to contribute to wage compression. Even Polly Toynbee has admitted that and ordinary people are not stupid. And that is before we consider the serious social problems and pressure on services caused by importing 500,000 people per annum.