This is the motion:

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty’s Government must immediately put a motion to the House asking it to approve ‘No Deal’ and, if the House does not give its approval, Her Majesty’s Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom’s intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

It is sponsored by a cross party group of senior MPs from the Conservatives, Labour, SNP, TIG, Lib Dem, and Plaid Cymru.

And what it says, stripping away formality, is: if all other alternatives have fallen away, such that the only options left open to the United Kingdom are No Deal and Revoke the choice between the two is one that Parliament rather than the Prime Minister must make.

And it should command considerable cross-party support.

For Conservative MPs it makes good on the promise that the Prime Minister made to the House of Commons yesterday:

“unless this House agrees to it, no deal will not happen.”

For Labour MPs it offers the prospect of delivering on their 2017 Manifesto which stated:

And Labour has continued to ask the Conservative Party to rule out No Deal.

The Motion should also be acceptable to supporters of the current draft of the Withdrawal Agreement – or some other version thereof such as Norway + or Labour’s preferred withdrawal agreement. It leaves those options available if Parliament approves them – it only applies if they fall away.

Nor does it preclude a general election. Because it applies on the penultimate day before exit day – which is a moving target that depends on what we are able to agree with the EU Council – it leaves the door ajar to a General Election.

But most of all, it should appeal to democrats. The decision of generational importance for the United Kingdom – between Revoke and No Deal – ought to be one for the representatives of the People in Parliament, and not for the Prime Minister, still less the Prime Minister of a minority Government. And this point is all the more important when one appreciates that Parliament has previously voted to reject No Deal.

No constitution founded, as ours is, on the bedrock of the supremacy of Parliament, should contemplate a Prime Minister taking a decision such as this in the face of a clear majority of MPs.

Picture this.

It’s Wednesday next week and Theresa May has once again failed to get her deal through Parliament – perhaps the Speaker has made good on his promise to rule it out of order or perhaps MPs have rejected it a third time. So she’s not in a position to meet the conditions imposed by the EU for an extension of time.

Let’s stop the clock here and take a look around.

Our options have shrunk to two. There is no time for a referendum. There is no time to negotiate some magical new deal that had eluded Parliament hitherto. There is no time left for a General Election. So our choices are either to leave with No Deal or to Revoke.

Revocation – cancelling Brexit – returns us to where we were before we triggered Article 50. All of the special benefits – the rebate, the opt-outs, the derogations – that we had negotiated for ourselves over the years are ours to keep. And the immediate outcome – remain – is supported, according to all recent polling, by an overwhelming majority.

What’s more, the choice whether to revoke is entirely for us. We don’t need the permission of the EU. The decision over the future of the United Kingdom rests where it should: in our hands.

And Parliament has already voted to reject No Deal.

So what does the Prime Minister do?

In the world I have described, where the sunlit uplands have vanished to be replaced by what every neutral economic forecaster sees as our economy tumbling over the cliff edge of No Deal, and with serious medicine shortages in the offing, I think she would put the question before Parliament. No Prime Minister would choose further to weigh down her legacy as the person who inflicted No Deal on the people with the additional millstone of having done so in the face of the clearly expressed will of Parliament.

In these circumstances, for her to choose No Deal would be the act of a dictator. It lacks any sort of mandate and would defy the clearly expressed will of Parliament. It would be an act from which democracy in the United Kingdom would take lifetimes to recover. And I do not believe she would do it.

I believe she would choose to put the question before Parliament. Thirty three long months after the referendum it would at last be ‘make up your mind time’ for MPs.

What then?

Revocation leaves open the door to a conversation about what we really want our country to be – the conversation we are so often really having when we think we’re talking about Brexit. Revocation does not rule out re-notifying in the future – I do not think there is any serious doubt about this – so long as the decision to re-notify is independent of the decision to revoke. I have discussed this in more detail here.

It also seems to me that the PM could do it. I do not believe – although there are other views – that if revocation by the PM was challenged a court would decide it required an Act of Parliament. I have discussed this in more detail here. If this is right, revocation requires no formality. It could be on crested letterhead, by text message or even carrier pigeon, right up until the last second before we leave on Friday.

But will MPs choose it?

It has always been clear to me that MPs could only choose revocation in an emergency. But if they were asked that question in an emergency – when all other options have vanished, when they were peering over the precipice – I believe they would choose it over No Deal. But only if asked it at the right time.

We will get only one shot.

To add your name to the Government hosted petition please click here.

To email your MP please click here.

To support the work of the Good Law Project, which established our right unilaterally to revoke, please click here.

In December, I published a piece arguing of No Deal that:

For the hundreds of thousands who will lose their jobs this is no joke; to save our democracy this is no drill; it is no rehearsal for the sick and the vulnerable who will suffer if the government’s planning fails.

If the government will not listen, if it refuses to recognise the supremacy of parliament, we must have a general strike.

I do not write to make that case again here. However, it is of the very nature of a General Strike that it is a response to multiple failures of the institutions of Government and the State. And, unsurprisingly, the ability to deliver a General Strike is closely constrained by the law.

With that in mind, I asked Bruce Carr QC to advise on whether and how such a thing might happen. Mr Carr was appointed by the Government in 2013  to lead an Independent Review of the Law Governing Industrial Disputes. He is a, if not the, pre-eminent trade union lawyer presently in practice.

His advice follows. If you are willing and able financially to support activities such as these please do so here.

***

RE: A GENERAL STRIKE AS A RESPONSE TO BREXIT

OPINION

1. As the current deadline of March 29 approaches and the prospect recedes of a deal being concluded under which the UK continues some sort of relationship with the EU, the attention of many has turned to how to respond to a disorderly ‘no deal’ Brexit. One suggestion of has been that there should be some form of ‘general strike’ in order to show the strength of feeling across the country and as a means of forcing the government to re-think its strategy (such as it is). If this idea gains traction, it seems highly likely that at least some affected employers will wish to take action in response to it. The question then arises as to whether the calling of a general strike would be lawful and if not, what might be the response of (at least some) employers?
2. It may be helpful at this stage to set out a few basic legal principles which are relevant to the taking of strike action. A strike as most of us understand it – and as it is defined in section 246 Trade Union & Labour Relations (Consolidation) Act 1992 – involves a concerted stoppage of work. It is the concerted – or collective – aspect of the action which brings pressure on the employer and forces them to the negotiating table. From an individual’s perspective however, the legal analysis begins with that person’s contract of employment. Strike action will invariably involve a breach of contract by a worker – he or she has agreed under their contract to work at particular time – by taking strike action he/she has broken that obligation. The breach may be sufficient to justify termination of the contract (dismissal) but will certainly allow the employer to make a deduction from wages. However, such actions do not happen out of the blue and there is invariably a call for industrial action which leads the collective withdrawal of labour. The next issue therefore is what are the legal consequences for the person or organisation that calls for such action?
3. A call for industrial action will generally involve committing the tort of inducement to breach of contract. If A calls on B to withdraw his or her labour and this causes loss (or potential loss) to B’s employer C, C will have a cause of action in tort against A for inducing the breach of contract by B. C’s remedies will include an action for damages or an injunction, part of which may require A to take steps to withdraw the call or inducement. For the tort to be established, it must be shown that A knows that he is inducing a breach of contract and that the inducement was an operative cause of the breach – in other words, that the unlawful act (the breach of contract) would or might not have been done but for the intervention of A.
4. This (common law) position is modified in relation to trade unions who would otherwise obviously face inevitable bankruptcy if they called on their members to take strike action – potentially unlimited claims for damages would soon deplete their financial resources. To prevent this from happening and to allow worker to take industrial action, immunity is created in relation to actions based on what are known as ‘the industrial torts’ – of which inducement to breach of contract is by far the most common. The immunity is found in section 219 TURLCA which provides that:

 “an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only – (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance.” (emphasis added)

5. There are two important points to note from this extract. The first is that the statutory immunity is not exclusively the territory of trade unions – the section is clear in its terms in that the immunity (when it applies) applies to any person not simply to a trade union. There are however additional consequences which flow in relation to trade unions and which I will deal with below. The second point is that the immunity applies only to actions done “in contemplation or furtherance of a trade dispute”. The question which then flows (and which is answered by section 244 TULRCA) is – what is meant by a trade dispute? The opening words of section 244 are important in that they define a “trade dispute” as being one “between workers and their employer”. There then follows a fairly extensive list of sorts of issues that arise in employment relationships including terms and conditions of employment, matters of discipline and machinery for consultation and negotiation.
6. Two consequences therefore flow from section 244 and which then feed back into the immunity from suit provided for under section 219 – first, there must be a dispute between workers and their employer. Plainly a general strike called in opposition to the government’s handling of Brexit would not involve (expect perhaps in the case of civil servants – as to which see below) a dispute between workers and their employer. The dispute would of course be one between those taking strike action and those responsible for a potential ‘no deal’ exit from the EU. Indeed there may be many employers who are sympathetic to the cause but who are nevertheless faced with their workers going on strike. Secondly, even if one were to get over the hurdle of the necessary parties to the dispute (worker and employer), a Brexit-inspired general strike would not fit into any of the subs-sections of section 244 as it would not involve terms and conditions of employment or any of the other 6 gateways set out in section 244(1)(b) – (g).
7. This second difficulty would of course also impact on civil servants who might wish to take such strike action. Although they may be in dispute with their employer and although they are treated as workers for the purpose of TULRCA (by virtue of section 245 – which thus avoids subtle and unresolved questions about the contractual status of those employed by the Crown), the nature of the trade dispute would still mean that it is unprotected within the scope of section 219. Even if one were to try to argue that the strike was motivated by concerns about the stability or terms of their employment post a no deal Brexit, it is highly likely that the dispute would be seen as essentially a political one and therefore not a ‘trade dispute’ within section 244 and thus outside the immunity provided under section 219. There is well-established authority for the proposition that politically motivated disputes fall outside the statutory immunity – see Mercury Communications v Scott-Garner [1983] ICR 74, a case involving a dispute found to be primarily about opposition to the privatisation of telephone network.
8. The upshot of all of this is that anyone calling for a general strike leaves themselves exposed to a risk of actions in tort based on inducement to breach of contract and in relation to which there is no immunity from suit under section 219. As far as trade unions are concerned, even if there were a means by which the difficulties I have outlined in relation to section 219 could be overcome, they would nevertheless by required to undertake a statutory ballot is provided by section 216 TULRCA. In other words, for a trade union to have immunity from suit, not only must any action be done “in contemplation or furtherance of a trade dispute”, but they must also have conducted a ballot of their membership and achieved a majority vote based on at least a 50% voter turn-out – see section 226 TULRCA.
9. It is perhaps worth making the point though that an inducement to breach of contract has to be exactly that – an inducement which then operates on the worker so as to cause him or her to desist from working. There is therefore some scope for taking action which falls short of being an inducement – for example by indicating one’s own intended course of action and leaving others to make up their own minds. It can of course still be argued that even an announcement at that level will operate as an inducement but the level of risk could be reduced by making sure that any announcement made it clear that it was not an invitation to others to follow suit and that if they did so they would in all probability be acting in breach of their contracts of employment which might in turn lead to a negative response from their employer. One notes however, that when conducting a ballot for strike action, trade unions are required as a matter of statute, to put a ‘health warning’ on the ballot paper informing their members that strike action will amount to a breach of contract – see section 229(4). Thus it can be inferred that simply telling someone that what they are doing is unlawful does not make an inducement cease to be one. The strategy of leading by undeclared example therefore remains a risky one, particularly if one rolls forward to the potential cross-examination of a striking worker who says that they took the action they did because they saw others publicly announcing an intention to do something similar.
10. Is there any way of successfully defending an action based on inducement to breach of contract, at least where the inducement is otherwise established? There is, in theory at least, a potential defence based on justification. In OGB v Allen & others [2007] IRLR 608, the House of Lords expressly recognized the existence of such a defence (see for example, Lord Nicholls at paragraph 193). However the scope of the defence remains uncertain and its application to a political dispute such as one based on the government’s Brexit policy, extremely tenuous. In addition, even if one were to run a defence of justification, a defendant’s conduct needs to be justified as against the claimant – see Grieg v Insole [1978] 3 All ER 449. In other words, those calling for a general strike because of what the government was doing or not doing, would have to justify an infringement of the rights of employers who are likely to be wholly innocent of any connection with government policy and who in many cases may in fact be sympathetic to the objectives of their striking workers.
11. Which of course leads to another potential lifeline for those wanting to take strike action. A legal case, if one is brought, is likely to be instigated by a pro-Brexit employer who is affected by strike action – the owner of a chain of public houses might be one possible example. On the other hand an employer sympathetic to the idea of strike action would not only be much less likely to bring a claim but may in fact go one step further and sanction the absence of his or her employees from work. If therefore the action became less ‘general strike’ and more ‘general shutdown’ the risks to the instigators of the action would be substantially reduced. If therefore the call were therefore one made to both employers and employees to show their dis-satisfaction by ceasing their respective economic activities, then the likelihood of legal action recedes. The call would not be for workers to breach their contract but for workers and employers to show their opposition to a potentially catastrophic government policy. However, whilst there are likely to be many employers who are in line with the opposition to a no deal Brexit, the question of how many would be prepared to allow a shut for a day or more as part of that opposition, remains very much an unanswered one. Such action would be unprecedented in my experience – but then, we are living in unprecedented times.

BRUCE CARR QC

Devereux Chambers

27 February 2019

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).

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.

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.

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:

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.

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:

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”.

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:

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

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.

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:

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?

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.

***

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.

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’.

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.

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.

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:

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:

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:

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.

***

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.

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.

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].

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.

***

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.