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:
(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.
(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.