R (The Good Law Project) v Electoral Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt |
| Judgment Date | 14 September 2018 |
| Neutral Citation | [2018] EWHC 2414 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4908/2017 |
| Date | 14 September 2018 |
and
[2018] EWHC 2414 (Admin)
Lord Justice Leggatt
and
Mr Justice Green
Case No: CO/4908/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jessica Simor QC, Tom Cleaver and Eleanor Mitchell (instructed by Deighton Pierce Glynn) for the Claimant
Richard Gordon QC and Gerard Rothschild (instructed by the Government Legal Department) for the Defendant
Timothy Straker QC and James Tumbridge (instructed by Venner Shipley) for the First Interested Party
Hearing date: 19 June 2018
Judgment Approved
Lord Justice Leggatt (giving the judgment of the court):
The issue in this case is whether the Electoral Commission (the statutory body responsible for overseeing elections and referendums in the UK) has correctly interpreted the law which limited spending by participants in connection with the referendum held in June 2016 on whether or not the UK should remain a member of the European Union. More particularly, the issue is whether the Electoral Commission was correct to conclude that, on the proper interpretation of the legislation, certain payments made by Vote Leave Limited were not “referendum expenses” incurred by Vote Leave but only donations made by Vote Leave to meet expenses incurred by another campaigner for a ‘leave’ outcome of the referendum called Mr Darren Grimes.
The relevant legislation
The law governing the conduct of the 2016 referendum is contained in the Political Parties, Elections and Referendums Act 2000 (“PPERA”) as modified by the European Union Referendum Act 2015 (“EURA”). That legislation imposed restrictions on the level of expenses which any individual or body campaigning for either outcome of the referendum was permitted to incur.
Pursuant to section 117(1) of PPERA, the total “referendum expenses” incurred by or on behalf of any individual or body during the “referendum period” could not lawfully exceed �10,000, unless they were a “permitted participant”. For an individual or body that was not a permitted participant knowingly to exceed this spending limit was a criminal offence: see section 117(2) and (3) of PPERA. We will set out later the definition of “referendum expenses”, which is at the centre of the dispute in this case. The “referendum period” ended on the date of the referendum, 23 June 2016: see Schedule 1, para 1 of EURA.
Under sections 105 and 106 of PPERA, an individual registered in an electoral register in the UK or a body carrying on its activities in the UK could become a “permitted participant” simply by giving a notification to the Electoral Commission. Where the notification was given by a body, it had to include the name of the person who would be responsible for compliance on the part of that body with the financial controls contained in the legislation.
Pursuant to section 108 of PPERA, one permitted participant was designated as representing those campaigning for each of the two possible outcomes of the referendum. The organisation designated as representing those campaigning for a ‘leave’ outcome was Vote Leave Limited. Each designated organisation was entitled to receive some assistance from the state including a grant of up to �600,000 from public funds: see section 110. Each designated organisation was also permitted to incur referendum expenses during the referendum period up to a limit of �7 million; for any other permitted participant, the limit was �700,000: see section 118(1) and Schedule 14 of PPERA, as amended by Schedule 1, para 25(2) of EURA. Incurring any referendum expenses in excess of the applicable limit could give rise to a criminal offence under section 118(2) and (3) of PPERA.
There were also restrictions (imposed by section 119 and Schedule 15 of PPERA) on donations to permitted participants. The main restrictions were a prohibition on accepting donations from anyone who was not a “permissible donor” and a requirement that any donation exceeding �7,500 be accompanied by a declaration confirming the donor's identity. Broadly speaking, permissible donors, like permitted participants, had to be individuals registered in an electoral register in the UK or bodies carrying on their activities wholly or mainly in the UK.
Under sections 120 and 122 of PPERA, where any referendum expenses are incurred by or on behalf of a permitted participant during any referendum period, the “responsible person” is obliged to make a return and deliver it to the Electoral Commission within six months after the end of the period. Amongst other information, this return must contain (i) a statement of all payments made in respect of referendum expenses incurred by or on behalf of the permitted participant during the referendum period and (ii) a statement of relevant donations received in respect of the referendum: see section 120(2) and Schedule 15, paras 9 to 11. Again, failure to comply with these requirements may constitute a criminal offence: see section 122(4) of PPERA.
Under section 145 of PPERA, the Electoral Commission has a duty to monitor and take all reasonable steps to secure compliance with the restrictions and other requirements imposed by the above-mentioned provisions. The Commission has investigatory powers and powers to impose civil sanctions for offences committed by breaches of the restrictions and other requirements imposed by the legislation.
Legislative history
Spending limits at elections in the UK are of long standing. Spending limits for referendums, like referendums themselves, are a much more recent creation. The Referendum Act 1975 contained no provision limiting expenses or payments. Nor did the Referendums (Scotland and Wales) Act 1997. The subject was considered by the Committee on Standards in Public Life, chaired by Lord Neill of Bladen QC, in its Fifth Report on the Funding of Political Parties in the United Kingdom, issued in October 1998. This report recommended that individuals and organisations that wished to incur “referendum expenses” of �25,000 or more should be required to register with the Electoral Commission (para 12.50). The Neill Committee advised, however, that it would be impracticable to try to limit spending on referendum campaigns. In the Committee's view (para 12.46):
“The number of individuals and organisations involved would often be too large. The time-scale would often be too short. Adequate accounting procedures would often be impossible to put in place. The administrative apparatus required would resemble one of Heath Robinson's most outlandish contraptions – and would almost certainly not work.”
The Government responded to the report in a White Paper on The Funding of Political Parties in the United Kingdom, published in July 1999. While adopting many of the Neill Committee's proposals, the Government rejected its advice on spending limits. The Government accepted that it was not possible, by the imposition of spending limits, to ensure a level playing field between those urging one outcome of a referendum and those urging the other. Nevertheless, the Government considered it desirable and practicable that spending limits should operate, in a similar way as at elections, to discourage excessive spending by political parties and others and to ensure that individual organisations do not obtain disproportionate attention for their views because of the wealth behind them (para 1.14).
It is common ground that this is the underlying purpose of the restrictions on referendum expenses imposed by PPERA and EURA.
The AIQ Payments
The subject matter of this claim is a series of transactions involving three parties: (i) Vote Leave; (ii) Mr Darren Grimes, a permitted participant who was also campaigning for a ‘leave’ outcome of the 2016 referendum; and (iii) AggregateIQ Data Services Limited (“AIQ”), a Canadian firm specialising in online advertising. Three payments are in issue, totalling �620,000, as follows: (i) �400,000 paid on or about 16 June 2016; (ii) �40,000 paid on 20 June 2016; and (iii) �180,000 paid on 21 June 2016. All three payments were made by Vote Leave to AIQ to pay for advertising services purchased from AIQ by Mr Grimes.
The following account of the transactions is based principally on emails exchanged between Vote Leave and Mr Grimes which were disclosed in these proceedings.
Some time before 9 June 2016 Vote Leave was informed that a third party donor wished to make a substantial donation to it. When calculating its financial position on that date, Vote Leave concluded that this donation, when received, could not be spent without taking Vote Leave above its �7 million spending limit for the referendum campaign by more than �500,000. Vote Leave reported receiving the donation (of �1 million) on 13 June 2016.
Some time before 13 June 2016 Vote Leave suggested to Mr Grimes that it might donate funds to him. On 13 June 2016 Mr Grimes sent an email to Vote Leave stating that “Beleave”, an unincorporated association set up by him to campaign for a leave outcome, would be “very interested in working with data specialists and analysts like those at [AIQ]” and that it would be very helpful if Vote Leave could send the proposed donation directly to AIQ so that work could begin sooner.
On 14 June 2016 Vote Leave's Operations Director sent an email to Mr Grimes confirming its offer to make a donation to his campaign of �400,000 and seeking his instructions as to where the money should go. Mr Grimes replied on 16 June 2016 requesting that the money be paid directly to AIQ and giving the relevant bank account details. The transfer was duly made by Vote Leave.
On 17 June 2016 Vote Leave offered “a further donation to BeLeave” of �40,000. Mr...
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