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11 December 2019

Elections, public scrutiny and the perils of breaking the rules

As the General Election approaches and we anxiously study manifestos, trying to decide which candidate has the best grasp on Brexit and the most realistic plan for the NHS, we tend to give little thought to the more administrative matter of how political campaigns are financed. The campaigners themselves, however, will be acutely conscious of the sanctions for getting this wrong, particularly in light of the Court of Appeal’s recent decision in Vote Leave Ltd v The Electoral Commission.

Case history

As its name indicates, this case harks back to Vote Leave’s campaign ahead of the Brexit referendum, during which Vote Leave made payments to a data analysis firm. The Electoral Commission (the Commission) investigated this and produced a report (the Report) which concluded that Vote Leave (and certain other campaigners) had breached the relevant rules under the Political Parties, Elections and Referendums Act 2000 (the Act) by making those payments. Vote Leave et al were fined and the Commission published the Report on its website on 17 July 2018. Vote Leave objected to the Report being published (and also objected to the fines in a separate appeal).

Prior to the hearing in the Court of Appeal, the relevant chronology was as follows:

  • on 8 October 2018, Vote Leave applied to the High Court for permission to apply for judicial review of ‘the making and publishing’ of the Report, contending that the Commission had no relevant power under the Act;
  • on 20 November 2018, Yip J refused permission for Vote Leave to apply for judicial review;
  • on 15 January 2019, Vote Leave renewed its application at an oral hearing before Swift J, who also refused permission; and
  • Vote Leave applied for permission to appeal against Swift J’s decision and was granted permission to apply for judicial review by Hickinbottom LJ on 4 June 2019. It was further directed that the application should be retained in the Court of Appeal.

Accordingly, the judicial review application was heard in the Court of Appeal on 3 October 2019 and judgment was handed down on 12 November 2019.

Why was the Report controversial?

Vote Leave objected to the Report being published on the grounds that this had caused Vote Leave (and associated individuals) to be subject to ‘unfairly hostile’ publicity and had the effect of being a further sanction, over and above those provided for the in the Act, in the form of ‘public reprimand’ [para 21].

The Commission had relied on Appendix B of its Enforcement Policy in publishing the Report:

  • paragraph B.14: ‘once an investigation is concluded we will publish the outcome on our website’; and
  • paragraph B.16: ‘we may also produce a more detailed investigation report […] where this will further our enforcement objectives and it is in the public interest to do so’.

Accordingly, the Commission was treating the Report as a ‘more detailed investigation report’ which could be published on its website.

Although the parties agreed that the Act contains no express provision for such reports to be produced or published, the court concluded that publishing the Report was within the Commission’s powers because it was ‘incidental to the carrying out of its enforcement functions under [the Act]’ [para 22]. The Report was ‘simply an explanation of the basis on which the decision to impose [the fines] […] was taken’ [para 27] and, in any case, it was useful to the public who would otherwise have had to piece the picture together by reading a variety of other related documents, each of which told only part of the story [para 26].

The moral of the case

Politicians and political parties are under ever-closer public scrutiny with such particular focus on their truthfulness that any lapses in integrity are inevitably seized upon. Revelations such as those contained in the Commission’s Report only add to the prevailing sense of public frustration at present.

On the upside, though, we can take heart from the Judges’ indications in this case that the Commission should continue to publish the results of its investigations in order to demonstrate to the public that it can be trusted to carry out its functions properly and conscientiously.

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