The Electoral Commission’s defeat in the High Court today marks an important turning point in their long and changing legal wrangle with Vote Leave. To recap, the ‘Good Law Project’ took the Electoral Commission to court back in 2017 to argue that they had erred in the advice they gave to Vote Leave when they told us that we could donate to other Leave campaigners without having to count it against our own referendum expenses. We followed the Electoral Commission’s advice, but the High Court has now agreed with the Good Law Project and said that the Commission was incorrect to give us this advice.

What the High Court’s judgement today states – in an entirely novel view of what the law says – is that a donation from one campaign to another, if the giving campaign does not tell the receiving campaign how to spend it but knows roughly what it is likely to spend the money on, has to be counted (effectively double counted) as an expense by both the giving campaign as well as by the receiving campaign.

In other words, today’s judgement effectively makes the Electoral Commission’s recent decision about Vote Leave redundant.

This whole situation stems from an email that Vote Leave received during the referendum from Kevin Molloy, a ‘Guidance Adviser’ on Party and Election Finance for the Electoral Commission. In his email of 20th May 2016, Molloy confirmed in writing what the Commission had previously told us verbally: that we were allowed to donate to other campaigns without it becoming our expense. Specifically, in the case of Molloy’s email, the Electoral Commission told us that we were allowed to make donations in kind:

“If you are supplying material to other campaigners without having a co-ordinated plan or agreement then the material is likely to be a donation from you to the other campaigner. If the donation is over £500 it will be reportable by the other campaigner. You would not need to report the cost of the material in your spending return unless you use the material yourself.”

The High Court has now ruled that this advice was wrong. But, naturally, Vote Leave and other campaigners assumed that the Electoral Commission, as the statutory regulator of elections and referendums, would not give us incorrect advice. One reason why Vote Leave transferred the donations directly to Aggregate IQ (the social media advertising company chosen by BeLeave) when we made them, was to follow Molloy’s advice as closely as possible.

When the ‘Good Law Project’ questioned Vote Leave’s donations to BeLeave on social media after the referendum, our Campaign Director Dominic Cummings tweeted that we had received permission from the Electoral Commission to make them. The Commission were issued with a Freedom of Information Request to release the advice they had given Vote Leave, but they failed to disclose it. This led to the following exchange between the Judge, Lord Justice Leggatt, and the Commission’s QC, Richard Gordon, at the Preliminary Hearing in March. It includes an intervention by Jessica Simor QC for the ‘Good Law Project’. This is an extract from the verbatim court transcript:

LORD JUSTICE LEGGATT: Why do you say at para.53 of your summary grounds that, as far as the Electoral Commission was aware, no such advice was ever given?

MR GORDON: Well, because we had assumed that the ground against us (see para.60 of the grounds) was a direct challenge to the advice that we were supposed to have given in writing to Mr Cummings or to Vote Leave, and we have not given advice in writing.

LORD JUSTICE LEGGATT: Is an email not writing?

MR GORDON: Well, my Lord, that is not advice in the sense that…

LORD JUSTICE LEGGATT: Oh, Mr Gordon.

MR GORDON: No, my Lord, what I’m attempting to do is to say, first of all, if we have misinterpreted the ground against us, that’s one thing; but we have made disclosure of the relevant document. That is the point.

MS SIMOR: May I ask, I have never seen it in any… we’ve never had it disclosed (inaudible) FOIA request.

MR GORDON: That’s fine, but it was disclosed, I’m told… as I say, I’ve taken very careful instructions… under the Freedom of Information Act request that we have been… that had been made to us. Now, if it hasn’t been for any reason, that is certainly not due to any disingenuousness on the part of the Commission.

LORD JUSTICE LEGGATT: But what was the basis for the statement in the Commission’s grounds that, as far as it was aware, no advice had been given to Vote Leave that it could lawfully make a donation?

MR GORDON: Well, rightly or wrongly, we have interpreted that as meaning advice that you can go ahead and do specifically what you have done in this case.

The judgement from the Preliminary Hearing rightly included a stinging rebuke to the Electoral Commission for their lack of transparency, and also concluded that Vote Leave’s interpretation and application of their advice was reasonable:

44. We agree with Ms Simor that the supply of services is analogous to the supply of materials. The advice given to Vote Leave in the email dated 20 May 2016 was thus consistent with the view which the Commission has taken at all relevant times and is maintaining in these proceedings. That being so, it seems to us that, in asserting that it had never given advice that Vote Leave could lawfully make the donation it did, the Commission was making a statement which, though literally true, was misleading. It was true that the Commission had not given advice to Vote Leave that the specific payments to AIQ would not need to be reported as referendum expenses. But the Commission had given advice to Vote Leave which, when applied to the payments to AIQ, carried that clear implication (provided there was no common plan). The fact that the Commission had posted the email of 20 May 2016 on its website in response to a request for disclosure under the Freedom of Information Act made by someone other than the claimant is nothing to the point, when the first time that the Commission drew attention to that fact in these proceedings was at the permission hearing.

Vote Leave’s decision to give money to BeLeave rested on the advice we sought and were given from the Electoral Commission. We would not have made the donations had Kevin Molloy not issued us with this advice. Having taken it, we now find ourselves having spent most of the last two years in a dispute with the Commission who have changed their tune after accusations made by our former opponents and self-proclaimed ‘whistle-blowers’ that there was a common plan between Vote Leave and BeLeave. The High Court has now ruled that the Commission’s advice to us was incorrect and our two-year legal wrangle is thanks to their duff advice.

The whole Judgement published today is well worth reading – and I plan to write later about the enormous repercussions it has for electoral law and the need to clear up this confusion with new legislation from Parliament. In contrast to the clarity with which Kevin Molloy defined referendum expenses, the Commission’s incoherence and obfuscation throughout this judicial review is neatly summed up in the following paragraph in today’s judgement:

40. Ultimately, the position of the Electoral Commission on what amounts to an “expense incurred” within the meaning of section 111 of PPERA appeared to offer little improvement on the well known elephant test of “I know one when I see one”. That is not a satisfactory approach in circumstances where a person who reports referendum expenses incorrectly is potentially guilty of a criminal offence.

Today’s decision by the High Court is a damning judgement on the Electoral Commission, which basically leaves them with no option but to appeal. Should they choose not to appeal and admit that they gave Vote Leave incorrect legal advice, then it will be interesting to see whether the Commission – recognising that we would never have made this donation had it not been for Kevin Molloy’s advice – will reconsider the fines it seeks to impose on us. The Commission will also have to review the spending returns of all the other campaigns for donations which should – according to this judgement – be reclassified as referendum expenses. And Parliament will have to rewrite electoral law to incorporate or reject the judgement that donations can be conflated with expenses.

We find ourselves in a complete Alice in Wonderland situation. Vote Leave asked for, and received, the Electoral Commission’s advice. We followed that advice. During the Judicial Review, the Electoral Commission tried to avoid admitting that it had given that advice to us, but we were able to establish that they had – and the judges clearly ruled in the Preliminary Hearing that we had received that advice. Yet we are now told that, by having followed that advice, we broke the law.

The situation has descended from tragedy into farce and – sadly – it ain’t over yet. But in anticipation that the usual suspects will use today’s judgement to suggest there should be a second referendum, I leave you with an exchange from the Preliminary Hearing between Jessica Simor QC and Mr Justice Holgate.

BrexitCentral readers will recall that Simor caused a stir on Twitter this week when, in response to the appalling footage of Jacob Rees-Mogg and his family being ambushed outside their home by left-wing anarchists, she tweeted:

“Unbelievable that he did not get his family inside as quickly as possible. The children should not have been kept there in front of the cameras, let alone paraded with him holding the baby. Why did he do that?”

Which reminds me of another tweet from June when, replying to a tweet from our former (and much missed) Deputy Editor Darren Grimes, she tweeted:

“Time for a jolly little war Darren. And you’re just the right age for them to send you over to the trenches.”

But I leave you with something more sensible from the great QC:

MS SIMOR: We’re certainly not seeking, if you’re indicating are we seeking a quashing of the referendum result, we are most certainly not.

MR JUSTICE HOLGATE: Mmm.

You can read today’s full judgement below or by clicking here:VOTE LEAVE - CO-4908-2017 - Good Law Project v. Electoral Commission - Final Judgment

