March 15, 2019

Electoral Commission Judicial Review – Statement

Yesterday, the High Court refused to grant us permission to proceed with our judicial review of the Electoral Commission. It expressed concerns about the quality of the investigation undertaken by the Electoral Commission and said it “probably would” have given us permission but it wanted to wait for the outcome of the Electoral Commission’s appeal against the Divisional Court’s decision in our favour in the Vote Leave case (to be heard on 4 July).

It was plainly troubled by the nature of the investigation the Electoral Commission claims to have undertaken into the circumstances in which the DUP claims to have accepted the largest donation in Northern’s Ireland’s political history. The background is set out here.

A number of matters follow from this.

First, should the Electoral Commission lose its appeal in the Vote Leave case, and it is our confident expectation that it will, we will require it carry out an investigation into whether the DUP and Constitutional Research Council broke the law. If it refuses, we will again issue judicial review proceedings. Thanks to the considerable generosity of our Counsel team – Gavin Millar QC and Tom Cleaver – we will not need to seek further funding for those judicial review proceedings.

Second, up until yesterday the Electoral Commission had refused to disclose to us details about the investigation it claims it carried out into the donation. We have now seen those details and we believe we are entitled to release them to the public. We have given the Electoral Commission seven days to object but, as we presently understand matters, there is no proper basis for them to do so.

Third, during the course of December, the Electoral Commission made this improper statement about Good Law Project and this judicial review:

“We are disappointed that the Good Law Project continues to pursue this judicial review. They are using this particular case, and the restrictions imposed upon the commission by the Northern Ireland transparency laws, to fuel public mistrust where none is merited.”

That statement was not born out by the hearing and the Electoral Commission should withdraw it and apologise. As the comments made by the Judge in the High Court make clear, the scrutiny of its conduct is plainly appropriate on these facts and a properly governed regulator would welcome that scrutiny.


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