June 14, 2018

Has Vote Leave broken the law? The Electoral Commission thinks so.

We know that the Electoral Commission reopened its investigation into Vote Leave, Darren Grimes and Veterans for Britain after the Good Law Project initiated judicial review proceedings.

On 6 June 2018 Tom Watson asked a written question about that investigation:

What can we tell from the answer?

We can tell, from the reference to “in accordance with statute they have 28 days”, that the Electoral Commission is satisfied beyond reasonable doubt that Vote Leave, Darren Grimes and Veterans for Britain have broken the law.

Let me explain.

  1. The legislation dealing with what the Electoral Commission must do where it believes a permitted participant has broken the law is set out in particular in Schedule 19C of the Political Parties, Elections and Referendums Act 2000. 
  2. Where it believes the law has been broken, there are alternative routes open to the Electoral Commission. One applies where the Electoral Commission proposes to impose a fixed monetary penalty (see paragraphs 1-4), the other applies where it proposes to impose a “discretionary requirement” (see paragraphs 5-9). But they are relevantly the same so I only deal with the route for a fixed monetary penalty.

Paragraph 1(4) says:

And where the Electoral Commission proposes to take that step it must give the person affected notice of what is proposed (see paragraph 2(1)):

And the notice proposed must also specify the period the person affected has to respond (see paragraph 3(2)) which is here 28 days.

And that is precisely what the written answer suggests the Electoral Commission has done.

  1. I should explicitly acknowledge it is possible that, even after a lengthy investigation that started six months ago and on which Vote Leave was spending in the words of its Chief Executive Matthew Elliott three months ago “significant numbers of hours each day”, Vote Leave has bizarrely held back some vital piece of evidence that will cause the Electoral Commission to revisit its assessment that it is satisfied beyond reasonable doubt that Vote Leave has broken the law. But after such a long and hard fought investigation that must be highly unlikely.
  2. What does this mean? Here, again, I can’t put it better than Matthew Elliott. He believes it jeopardises Brexit:

And he is right. Because, as the Judge put it in the Rahman case, if you win an election in breach of the rules, if you win it by cheating, then you cannot be said to have been democratically elected.

And if you win a referendum in breach of the rules, if you win it by cheating, the same again must be true.

In a perfect world, this would all come out when the Electoral Commission concludes and releases its report. Let me say, on the record, that I understand and appreciate that. But this concerns the behaviour of Vote Leave – the official designated Leave campaign body – and it seems to me important that Parliament know what the Electoral Commission’s assessment is of that behaviour before Parliament votes again on the European Union (Withdrawal) Bill 2017-19.

Because you do not obtain the will of the people if you cheat.


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