Brexit: Will the EU referendum be re-run after Vote Leave was referred to police for breaking electoral law?

The Electoral Commission has said Vote Leave broke spending regulations during its Brexit campaign, but will this ruling lead to a second EU referendum?  

Adam Lusher
Tuesday 17 July 2018 18:30 BST
MP Sarah Woolaston calls for Brexit referendum to be re-run

What has the Electoral Commission done?

The Electoral Commission has imposed a £61,000 fine on Vote Leave, the official Brexit campaign group, and ruled that it broke spending limit rules during the Brexit referendum.

In addition, the watchdog has referred David Halsall, the “responsible person” for Vote Leave, to the Metropolitan Police for making false declarations of campaign spending.

Darren Grimes, the head of a separate Brexit youth group called BeLeave – which received a £675,000 donation from Vote Leave – has also been referred to the police and fined £20,000 by the Electoral Commission.

Bob Posner, Electoral Commission director of political finance, described what happened as “serious breaches of the laws put in place by parliament to ensure fairness and transparency at elections and referendums.”

Under the rules of the referendum, Vote Leave was supposed to have stuck to a £7m spending limit while campaigning.

But the Electoral Commission ruled that Vote Leave secretly went nearly £500,000 over its limit when it made the undeclared £675,000 donation to Mr Grimes’s BeLeave group.

In what the commission called “a common plan with Vote Leave”, BeLeave then used the £675,000 to pay Aggregate IQ, a data firm that is now at the centre of controversial whistleblower claims that it micro-targeted enough voters on social media to skew the referendum result in favour of Brexit.

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So does this ruling mean the referendum has to be declared invalid and re-run?

In strict legal terms no. In political terms quite possibly.

Jolyon Maugham QC, the director of the Good Law Project, which launched the judicial review that arguably prompted the Electoral Commission into renewing its investigation into Vote Leave spending, told The Independent: “Legally this ruling doesn’t mean anything for the country. Politically, it should be decisive.

“The referendum should no longer be pretended to provide any mandate for Brexit.”

But why does this not pave the way for legal action to have the referendum result declared null and void?

Because the referendum was only advisory. Its result did not place a legally binding obligation on MPs to get Britain out of the EU.

The safeguards that allow for legally binding elections to be re-run in the event of rule breaches did not, therefore, apply to the EU referendum.

Mr Maugham said: “It was a glorified opinion poll in the eyes of the law. The normal safeguards that govern elections that give rise to legally binding outcomes were cut out from the referendum.

“It is unchallengeable. There is no recourse in law. There is no legal mechanism for overturning the result of this referendum.”

So could MPs just ignore the Electoral Commission and proceed as if there was nothing wrong with the way the referendum result was achieved?

Theoretically, yes.

Mr Maugham and others, however, argue that the “cheating” and “very substantial” Vote Leave overspending ruled upon by the Electoral Commission should oblige MPs to disregard the referendum result.

He said: “It is now up to MPs to do their jobs and ask themselves whether a referendum that took place against a background of Vote Leave cheating can safely be said to represent the will of the people.”

But he also admitted: “If MPs allow cheats to prosper then we don’t have any democracy left, but, ultimately, if that is what they are prepared to do, there is nothing I or any other lawyer can do about it.”

So might the government actually decide against taking any meaningful action in response to the Electoral Commission’s findings?

It’s a distinct possibility.

Just 24 hours before the Electoral Commission announced its findings, Theresa May ruled out a second EU referendum under “any circumstances”.

But pressure for a second referendum has undoubtedly increased now the Electoral Commission has ruled.

During the debate that followed Labour’s Chuka Umunna being granted an urgent question about the commission’s ruling, pro-Remain Tory MP Sarah Wollaston said the referendum should now be re-run because the 2016 vote was compromised.

Labour’s David Lammy echoed the call for a re-run, and Tory grandee Sir Nicholas Soames called for the electoral system to be “blown up and started all over again” in the wake of the Electoral Commission’s findings.

Others demanded a full public inquiry into how the referendum was conducted, among them Mr Umunna, who alluded to the leading roles played in the Vote Leave campaign by the likes of ex-foreign secretary Boris Johnson and current environment secretary Michael Gove.

Accusing Vote Leave of “an affront to democracy”, Mr Umunna said: “Members of the cabinet sat in an organisation which has been found to have flouted our democracy. Given there was a 4 per cent gap between Leave and Remain, and Vote Leave overspent by just under 8 per cent, we cannot say with confidence that this foul play did not impact on the result.”

But at this stage, about the only thing that can be said with certainty is that in a Brexit process already described as an omnishambles, anything could happen.

What are the Brexiteers saying about the Electoral Commission ruling?

Vote Leave has immediately claimed the Electoral Commission was “motivated by a political agenda”.

A Vote Leave spokesman accused the Electoral Commission of “a number of false accusations and incorrect assertions that are wholly inaccurate and do not stand up to scrutiny”.

He said: “Vote Leave has provided evidence to the Electoral Commission proving there was no wrongdoing.

“And yet, despite clear evidence of wrongdoing by the Remain campaign, the Commission has chosen to ignore this and refused to launch an investigation.

“All this suggests that the supposedly impartial Commission is motivated by a political agenda rather than uncovering the facts.

“The Commission has failed to follow due process, and in doing so has based its conclusions on unfounded claims and conspiracy theories.

“We are confident that these findings will be overturned.”

Responding for the Electoral Commission, Mr Posner accused Vote Leave of refusing to co-operate with an investigation that had nonetheless uncovered “clear and substantial evidence”.

In a statement posted on Twitter, Darren Grimes accused the Commission of fining him “on the basis of the wrong box being ticked on an application form”.

What are the Brexiteers saying about Remain spending?

They have repeatedly argued that they were heavily outgunned by Remain spending power, to the point that any alleged overspend by Vote Leave could not have significantly affected the eventual Brexit referendum result.

A key plank of this argument is that in April 2016, a week before official campaigning started and the spending rules kicked in, David Cameron’s government paid £9.3m to send leaflets to every UK household setting out its arguments for remaining in the EU.

Officials said they were responding to public demand for more information, but Leave campaigners, who were themselves already making the case for Brexit, were furious.

Now many of them are referring to the £9.3m figure to suggest the £500,000 Vote Leave overspend pales by comparison – even if it occurred during the official campaigning period and significantly closer to the day people voted on June 23 2016.

Leave supporting Labour MP Kate Hoey told the BBC: “Even if they spent half a million pounds over, the government put in £9 million of a leaflet that went right round every doorstep.

“If you’re really telling me that you think the decision of the British people would have been different if that amount of [Vote Leave] money had not been spent then I just think that’s ridiculous.”

Mr Maugham, however, said: “Vote Leave overspent very substantially. No-one can know what difference it made, but we don’t ask the people who came second to Lance Armstrong to prove that it was his massive drug use that caused them to come second. Otherwise cheats prosper and we don’t have fair competition.”

He added: “Parliament believed that spending could affect the outcome – that’s why it had spending caps. Donors think spending can affect the outcome – that’s why they donate. And we know Vote Leave believes spending can affect the outcome – that’s why they invited these very, very substantial donations in the last days of the campaign.”

Has anything like this happened before?

Sort of.

In May the Electoral Commission imposed a maximum £70,000 fine on Leave.EU, the Brexit campaign group funded by Arron Banks, after finding it had exceeded its maximum spending limit.

Mr Banks declared the commission’s findings a “joke” and accused the watchdog of seeking to strip the referendum of credibility.

A key difference between the events of two months ago and now, however, is that Leave.EU was not the official Brexit campaign group. Its spending limit was £70,000 not £7m.

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