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Case update 04 May 2018

Update on the Electoral Commission challenge

We are pleased to say we now have a hearing date. The judicial review will be heard on 19th June. We will, as the written arguments are submitted for the hearing, add to this page to create a full record of the materials. You can read the decision of the Divisional Court giving us permission here.

But it might also be worth us reviewing why the case is important.

We started off with four arguments.

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(1) We said the Electoral Commission had at least enough evidence to investigate whether Vote Leave and BeLeave were spending from a single pool of money – they were ‘working together’ as the law has been inaccurately summarised – and if they were then Vote Leave had spent more than Parliament permitted it to spend with the result that the referendum was not run as Parliament intended.

(2) We said, in fact, the Electoral Commission had enough evidence to conclude that Vote Leave and BeLeave were spending from a single pool of money so that Vote Leave had spent more than Parliament permitted it to spend with the result that the referendum was not run as Parliament intended.

Pausing there, if you look through a ‘referendum’ lens at the work Carole Cadwalladr is doing and you ask how it is relevant, it is relevant because it shows the degree of cooperation between Vote Leave and BeLeave.

(3) We also said that even if Vote Leave and BeLeave were not spending together a single pool of money, if Vote Leave donated its money or services of Aggregate IQ it had commissioned to BeLeave that money or the cost of those services would count towards Vote Leave’s spending cap. If we are right, the inevitable result will be that Vote Leave spent more than Parliament permitted it to spend.

(4) Finally we said that the Electoral Commission permitted this to happen and so it had failed to ensure the referendum was fair.

The Electoral Commission, before we sued them, told us that there was nothing wrong with its investigation. We sued them anyway – and the day before they had to file their response to our claim they agreed to reopen their investigation. This meant that we got what we were asking for on the first of our points above and in relation to the second there was no longer a need for the Court to decide it because the investigation was open anyway.

In the hearing before the Divisional Court we were asked what we wanted it to do in relation to the fourth point and we said we simply wanted the Divisional Court to decide that the Electoral Commission had not managed the referendum fairly. The Court was not persuaded that a statement about what the Electoral Commission had failed to do in the past was of legal value. But we may try again to persuade the Court on this at the full hearing.

But in relation to our third point the Divisional Court agreed with us that there was an arguable case that the value of the donations made by Vote Leave to BeLeave counted as Vote Leave’s spending. It is this point that will occupy the High Court on 19 June.

This, it hardly needs be said, is an incredibly important point.

A high judicial authority – the Divisional Court – may decide that Vote Leave broke the rules set down by Parliament to ensure the Referendum was fair. There are many MPs who believe that Brexit is not in the national interest but who feel shackled by the ‘will of the people’ narrative. Those MPs will find those shackles unlocked if a court says that Vote Leave broke the rules laid down by Parliament. They will know, because a court has said so, that the Referendum was not run as Parliament intended.