The Queen (on the application of the Good Law Project) v The Electoral Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lady Justice Nicola Davies |
| Judgment Date | 17 September 2019 |
| Neutral Citation | [2019] EWCA Civ 1567 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 September 2019 |
| Docket Number | Case No: C1/2018/2543 |
[2019] EWCA Civ 1567
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
LEGGATT LJ AND GREEN LJ
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Singh
and
THE RT HON Lady Justice Nicola Davies
Case No: C1/2018/2543
and
Philip Coppel QC and Gerard Rothschild (instructed by the Government Legal Department) for the Appellant
Jessica Simor QC and Tom Cleaver (instructed by Deighton Pierce Glynn) for the Respondent
Timothy Straker QC and James Tumbridge (Instructed by Venner Shipley) for the First Interested Party by way of written submissions only
The Second Interested Party did not appear and was not represented
Hearing date: 4 July 2019
The Lord Chief Justice, Lord Justice Singh and
Introduction
This is an appeal by the Electoral Commission against an order of the Divisional Court (Leggatt LJ and Green J) by which it granted the Good Law Project's application for judicial review of the Electoral Commission's decision not to open an investigation into campaign spending of, and donations received by, Vote Leave Limited (“Vote Leave”) and Mr Darren Grimes in connection with the referendum on membership of the European Union (“EU”) held on 23 June 2016. Mr Grimes ran an unincorporated association called BeLeave. The Court held that the Electoral Commission had misinterpreted the definition of “referendum expenses” in section 111(2) of the Political Parties, Elections and Referendums Act 2000 (“the 2000 Act”). The core issue was whether money paid by Vote Leave to discharge Mr Grimes' contractual obligations for advertising should be considered as referendum expenses of Vote Leave as well as donations to Mr Grimes. The Divisional Court, in disagreement with the Electoral Commission, determined them to be referendum expenses of Vote Leave.
Hickinbottom LJ granted permission to appeal to the Court of Appeal in an order dated 14 December 2018.
The Electoral Commission is the statutory body responsible for overseeing elections and referendums in the United Kingdom (“UK”).
The referendum continues to be an emotive subject. Strong views are held on all sides of the debate. Our role is to interpret and apply the law, without fear or favour, affection or ill-will. We are concerned with a question of statutory construction of importance not only to the EU referendum but any other. The political context in which the issue arises and the identity of the parties are immaterial.
At the hearing of the appeal we heard oral submissions from Mr Philip Coppel QC (who did not appear below and who appeared with Mr Gerard Rothschild) for the Electoral Commission; and from Ms Jessica Simor QC (who appeared with Mr Tom Cleaver) for the Good Law Project. We also had the advantage of reading a skeleton argument of Mr Timothy Straker QC for Vote Leave. We are grateful to all counsel for their submissions.
Factual Background
In February and March 2017 the Electoral Commission conducted assessments of the campaign spending returns of Vote Leave and Mr Grimes, both of whom were “permitted participants” in the referendum campaign. Vote Leave was the “designated organisation” recognised by the Electoral Commission as representing those campaigning for a “leave” vote. The Commission's assessments included consideration of the parties' spending in connection with services provided by AggregateIQ Data Services (“AIQ”), a Canadian company specialising in online advertising. The Commission concluded that there were no reasonable grounds to suspect that there had been any incorrect reporting of campaign spending or donations. It decided not to open an investigation into this.
A series of three transactions involving Vote Leave, Mr Grimes and AIQ amounting to £620,000, forms the underlying subject-matter of this case. During the referendum period, Vote Leave paid a total of £3.4m to AIQ, although it declared £2.697m in referendum expenses in respect of AIQ. The three payments in issue were made by Vote Leave to AIQ to pay for advertising services purchased from AIQ by Mr Grimes, and none was declared as “referendum expenses” by Vote Leave. The account of the transactions is based principally on emails exchanged between Vote Leave and Mr Grimes which were before the Divisional Court. They were as follows:
i) £400,000 paid on or about 16 June 2016;
ii) £40,000 paid on 20 June 2016;
iii) £180,000 paid on 21 June 2016.
Some time before 9 June 2016 Vote Leave was informed that a third party donor wished to make it a substantial donation. Vote Leave calculated that this donation could not be spent without taking it above its £7 million statutory spending limit for the referendum campaign by more than £500,000. Accordingly, at some time before 13 June 2016, Vote Leave suggested to Mr Grimes that it might donate some funds to him. On 13 June 2016 Mr Grimes sent an email to Vote Leave suggesting that it would be helpful if Vote Leave could send the proposed donation directly to data specialists and analysts AIQ on behalf of ‘BeLeave’, so that his work with them might begin sooner. On 14 June 2016, Vote Leave's Operations Director confirmed its offer to Mr Grimes to make a donation to his campaign of £400,000. Mr Grimes requested that the money be paid directly to AIQ, giving the relevant bank account details, and the transfer was duly made by Vote Leave.
On 17 June 2016, Vote Leave offered a further donation to BeLeave of £40,000, and this was again paid directly to AIQ on 20 June 2016.
On 21 June 2016, Vote Leave's Operations Director emailed Mr Grimes saying that Vote Leave was in a position to make a further donation of £181,000. Mr Grimes confirmed this and asked for £180,000 to be transferred to AIQ and £1,000 to his account for travel expenses. The payments were made the same day.
Between 14 and 21 June 2016 Mr Grimes, as Chair of BeLeave, entered into four written agreements with AIQ under which AIQ agreed to provide a “targeted social, video and display media campaign” on behalf of BeLeave. Invoices for these services were rendered by AIQ to Mr Grimes and paid with the money which Vote Leave had transferred to AIQ for that purpose.
The three payments made by Vote Leave to AIQ (“the AIQ Payments”) were reported to the Electoral Commission in the return made by Mr Grimes both as donations received by him and as payments made in respect of referendum expenses incurred by him or on his behalf. The AIQ Payments were not included in the return made by Vote Leave in respect of its referendum expenses.
In its February and March 2017 assessments of the campaign spending returns of Vote Leave and Mr Grimes, the Electoral Commission concluded that there were no reasonable grounds to suspect that there had been any incorrect reporting of campaign spending or donations, and it decided not to open an investigation into this.
The Good Law Project, an interest group whose application was financed by crowd-funding, sought permission to bring a claim for judicial review of the decision of the Commission. Permission was granted by the Divisional Court (Leggatt LJ and Holgate J) in respect of one ground only, on 23 March 2018: see [2018] EWHC 602 (Admin).
In its substantive judgment, delivered on 14 September 2018, the Divisional Court granted the application for judicial review, finding that the Commission had misinterpreted the definition of “referendum expenses” in section 111(2) of the 2000 Act: see [2018] EWHC 2414 (Admin).
On 4 October 2018 the Divisional Court handed down its judgment on ancillary matters, including the form of the declaration which it granted to reflect its judgment: see [2018] EWHC 2553 (Admin). The declaration was in the following terms:
“On the proper interpretation of the definition of ‘referendum expenses’ in section 111(2) of the Political Parties Elections and Referendums Act 2000, the three payments totalling £620,000 made by Vote Leave Limited to AggregateIQ Data Services Limited between 16 and 21 June 2016 to pay for advertising services purchased by Mr Darren Grimes were referendum expenses incurred by Vote Leave Limited.”
After the proceedings in the Divisional Court had begun, but before the judgment was delivered, the Electoral Commission carried out a further assessment review and decided that it would, after all, open an investigation into the spending of Vote Leave and Mr Grimes. The Commission published the report of that investigation on 17 July 2018, finding that Vote Leave and Mr Grimes had breached the campaign finance rules in a number of respects, including in their reporting of the AIQ Payments in issue in this action. However, the Electoral Commission made these findings on a different legal basis from that challenged by the Good Law Project, namely that the payments represented “common plan expenses”: see paragraphs 39 et seq and 57 below.
Material legislation
The relevant statutory framework was helpfully set out at [2] to [11] of the judgment of the Divisional Court and can be summarised as follows.
The law which governed the conduct of the 2016 referendum is contained in the 2000 Act, as modified by the European Union Referendum Act 2015 (“the 2015 Act”). The legislation imposed restrictions on the level of expenses which any individual or body campaigning in the referendum was permitted to incur.
Under sections 105 and 106 of the 2000 Act, an individual registered in an electoral register in the UK or a body carrying on its activities in the UK could become a “permitted...
To continue reading
Request your trial
-
Vote Leave Ltd v The Electoral Commission
...decision was upheld by the Divisional Court in March 2018, but on appeal its decision was set aside by this Court: see R (Good Law Project) v The Electoral Commission [2019] EWCA Civ 1567. Mr Straker appeared at some points in his submissions to be suggesting that those two decisions calle......