Our Judicial Review against the Electoral Commission – Update

Our judicial review of the Electoral Commission’s failure, as we see it, properly to investigate Vote Leave’s spending in the EU Referendum (you can see the claim form here) had two elements. First, we said that its investigation into the facts was flawed (our “First point”). And, second, we said that it had misunderstood the law (our “Second point”).

The First point looks at the events surrounding the EU Referendum.

The Second point has important policy implications going forward: without an answer campaigning bodies in future referendums or elections will not know whether they can multiply their spending power by giving money or services to like minded campaigns.

The Electoral Commission’s original stance was that we were wrong on both points: they had carried out a proper investigation and they had correctly applied the law. But, when we sued them in the High Court, they agreed to reopen their investigation into Vote Leave. In other words, they agreed our First point was right. In light of their concession, they invited us to drop the case. But we believed it was important to get clarity for the future and so we decided to continue with the Second Point.

Earlier this week we heard from the High Court.

To bring a judicial review claim you need permission. There is a two stage process for deciding whether you should have permission. The court can give you permission after having read the papers. Or, if it is not satisfied having read the papers that you should have permission, you can (generally) ask for an oral permission hearing.

Here is what the High Court said: PermissionDecision.

The High Court makes, basically, three points:

(1) because the Electoral Commission decided, after we had commenced the proceedings, that we were right on the First point the High Court has indicated we should be entitled to some of our costs;

(2) in relation to the Second point the High Court says that our analysis of the law is “arguable” – in other words, there is reasonable doubt about whether the Electoral Commission’s analysis of the law is right; but

(3) because the Electoral Commission agreed to reopen its investigation the High Court says the Second point, advanced in this case, is academic and so it has refused us permission on the papers. But it has indicated that we may make a new claim.

Whatever the merits of what the High Court says at (3) – and we can see arguments both for and against its approach – for us to abandon the case would leave the law in a very unfortunate state. Neither the Electoral Commission nor campaigners in future referendums and elections would know what they can do with their money.

We think it would be in the interests of both the Electoral Commission – which after all has to regulate elections and referendums – and campaigners to know what the law is. So we have written to the Electoral Commission making proposals about how the issue might be resolved – either by them agreeing to issue new guidance which we might challenge in a new case or by them agreeing that it is in the public interest that the High Court resolve the issue in this case.

You can read the letter here: Letter-to-Electoral-Commission.

We will, of course, keep you updated.