Vote Leave Ltd v The Electoral Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Singh,Lady Justice Nicola Davies |
| Judgment Date | 12 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1938 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/0150 |
| Date | 12 November 2019 |
[2019] EWCA Civ 1938
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the High Court (Queen's Bench Division)
Administrative Court
Mr Justice Swift
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Singh
and
Lady Justice Nicola Davies
Case No: C1/2019/0150
Mr Timothy Straker QC and Mr James Tumbridge (respectively instructed by, and of, Venner Shipley) for the Appellant
Mr Philip Coppel QC and Mr Ravi Mehta (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 3 rd October 2019
Approved Judgment
INTRODUCTORY
The Appellant, Vote Leave Ltd (“VL”), was the designated lead campaigner for the “leave” outcome in the 2016 EU referendum. The Electoral Commission, which is the Respondent, has responsibility under the Political Parties, Elections and Referendums Act 2000 (“PPERA”) for, among other things, monitoring and ensuring compliance with the statutory rules which apply to the financing of referendum campaigns. Non-compliance may constitute an offence. I give details of the relevant statutory provisions below.
In November 2017 the Commission opened an investigation under Part X of PPERA into related allegations of contraventions of those rules by various persons, including VL. The details of the matters investigated are not material for the purpose of this appeal: broadly speaking, they concern payments made to a Canadian data analytics firm called Aggregate IQ (“AIQ”) for campaign services during the referendum campaign and how those payments were reported to the Commission.
On 17 July 2018 the Commission served two Notices (dated 16 July) under paragraph 6 (5) of Schedule 19C of PPERA notifying VL of its decision to impose “variable monetary penalties” (in ordinary language, fines) on it in respect of four offences. The fines for the first three offences, covered by what I will call the first Notice, totalled £41,000; and the fine for the fourth offence, covered by the second Notice, was a further £20,000. On the same date it served Notices on two other leave campaigners – Mr Darren Grimes, who ran an unincorporated association BeLeave; and Mr David Banks, the responsible person for an organisation called Veterans for Britain – in respect of related offences.
The same day the Commission published on its website a document entitled “Report of an Investigation in respect of Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain, concerning Campaign Funding and Spending for the 2016 Referendum on the UK's Membership of the EU” (“the Report”). The Report runs to 38 pages and gives an account of the Commission's investigation and findings, culminating in its determinations as to the offences for which VL, Mr Grimes and Mr Banks were fined.
On 8 October 2018 VL applied to the High Court for permission to apply for judicial review of “the making and publishing” of the Report. Mr Grimes and Veterans for Britain were named as interested parties. It is important to emphasise at this stage that VL's challenge was not to the Commission's decision that it had committed the offences for which it was fined, which was, as noted below, the subject of a separate appeal. Rather, the objection was to the publication of the Report: it was and is VL's case that the Commission had no power under PPERA to publish such a report.
On 20 November 2018 Yip J refused permission to apply for judicial review. VL renewed its application at an oral hearing before Swift J on 15 January 2019 but he too refused permission.
VL applied for permission to appeal against Swift J's decision. By an order dated 4 June 2019 Hickinbottom LJ granted permission to apply for judicial review and directed, pursuant to CPR 58.5 (5) and (6), that the application be retained in this Court.
Before us VL has been represented by Mr Timothy Straker QC, leading Mr James Tumbridge of Venner Shipley. The Commission has been represented by Mr Philip Coppel QC and Mr Ravi Mehta. The interested parties did not appear and were not represented.
It is convenient to mention at this stage two pieces of related litigation.
(1) A person who is fined by the Commission under the provisions in question has a right to appeal to the County Court. Originally, both VL and Mr Grimes appealed against the fines imposed on them, and the two appeals were directed to be managed together. On 29 March 2019 VL discontinued its appeal, but Mr Grimes proceeded. By a decision dated 19 July HH Judge Dight CBE, sitting in the Central London County Court (Mayor's and City of London), allowed Mr Grimes's appeal on a particular basis which I need not explain save to say that it depended on the procedural consequences of the precise formal relationship between him and BeLeave.
(2) Secondly, in 2017 the Commission decided not to investigate whether payments made by VL to BeLeave, from which AIQ's bills were paid, were in breach of the applicable limits on VL's campaign spending. A challenge to the lawfulness of that 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 called into question the basis of the Commission's decision to fine VL. Mr Coppel disputed that, pointing out that both appeals were decided on grounds which had no application to the basis on which the fines with which we are concerned were imposed. So far as I can see, that is correct, but it is unnecessary to consider the point because the correctness of the decision to fine VL is not material to the issue before us: that issue is limited to whether the publication of the Report relating to that decision was within the Commission's statutory powers.
THE STATUTORY BACKGROUND
Part I of PPERA is headed “the Electoral Commission”. Section 1 provides for the establishment of the Commission. Sub-section (6) incorporates Schedule 1, which contains more detailed provisions about the Commission. Paragraph 2 of Schedule 1 reads:
“The Commission may do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions.”
That language is substantially the same (apart from the prohibition on the borrowing of money) as the well-known terms of section 111 (1) of the Local Government Act 1972, which empowers local authorities “to do any thing … which is calculated to facilitate, or is incidental or conducive to, the discharge of any of their functions”. That provision codifies what had long been recognised to be the position at common law.
Sections 5–13 are headed “Commission's General Functions”. I need not set these out, but I should note that sections 5 and 6 impose particular duties on the Commission to make reports – under section 5 to make and publish a report on the administration of each election or referendum, and under section 6 to submit reports from time to time to the Secretary of State on various specified matters. In this connection I should refer also to paragraph 20 of Schedule 1, which requires the Commission to report annually to Parliament about the performance of its functions in the year in question and to publish that report.
Part VII contains provisions regulating the conduct of referendums. For our purposes I need note only that they include, in section 118, limits on the amounts that may be spent by “permitted participants” and, in section 122, requirements on permitted participants to submit returns of referendum expenses incurred by them. Contravention of those requirements is an offence: see section 118 (2) and section 122 (4). Two of the offences for which VL was fined were under section 122 (4) and one under section 118 (2).
Part X of the Act is headed “ Miscellaneous and General”. Sections 145–148 are headed “Enforcement of Act”. The sections relevant for our purposes are 145–147. I take them in turn.
Section 145 is headed “Duties of Commission with respect to … compliance with controls imposed by the Act etc”. Sub-section (1) reads, so far as material:
“The Commission must monitor, and take all reasonable steps to secure, compliance with –
(a) the restrictions and other requirements imposed by or by virtue of –
(i) …
(ii) Parts 3 to 7, and
(iii) sections 143 and 148; and
(b) …”
Section 146 is headed “Investigatory powers of Commission” and gives effect to Schedule 19B. The Schedule contains detailed provisions about the conduct of investigations by the Commission. These include powers to require the production of documents. Paragraph 13 (1) provides that failure, without reasonable excuse, to comply with any requirement imposed under the Schedule constitutes an offence. The fourth of the offences for which VL was fined was under paragraph 13 (1), for failure to produce documents by a specified date. Paragraph 15 requires the Commission to include in its annual report to Parliament (see para. 11 above) information about the use made by it of its investigatory powers during the year in question.
Section 147 (which was substituted with effect from 1 December 2010, by the Political Parties and Elections Act 2009) is headed “Civil Sanctions” and reads:
“Schedule 19C makes provision for civil sanctions in relation to–
(a) the commission of offences under this Act;
(b) the contravention of restrictions or requirements imposed by or by virtue of this Act.”
It was under the civil sanctions regime established by section 147 and Schedule 19C that the Commission imposed on VL the fines which gave rise to the Report. I need not attempt a full summary of...
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