In all democracies, it’s essential that elections – including referendums – are run fairly, and that the regulatory authority has the power to annul an election or referendum if serious irregularities may have affected the result.
Although the code is voluntary and not legally binding, the UK is one of the 61 member states of the Commission and helped to form the Code, which was adopted in 2006. The Commission advised me:
“The Code was and is strongly supported by the Committee of Ministers recommending to the member States to respect its provisions.”
‘The appeal body must have authority to annul the referendum where irregularities may have affected the outcome. It must be possible to annul the entire referendum or merely the results for one polling station or constituency. In the event of annulment of the global result, a new referendum must be called.’
In the UK, our Electoral Commission is the independent regulatory body for elections and referendums, set up by Parliament to “regulate political finance in the UK” and to “promote public confidence in the democratic process and ensure its integrity.”
I asked the Commission if they have the power to annul a referendum, in accordance with the recommendations of the Venice Code.
“In short, no we do not have the power to annul an election or referendum.”
If the Electoral Commission had the power to annul a referendum, then it’s unlikely that members of the public would now be needing to call on the High Court to declare the EU referendum “void” as a result of serious irregularities.
The Venice Commission’s Code states that a final appeal to a court must be possible.
The case of Susan Wilson & Others versus The Prime Minister is scheduled to move to a preliminary hearing on 7 December.
The case will argue that Brexit must be declared void and the notification of Article 50 quashed because, “various criminal offences may have been committed”.
The Independent reported this weekend that the government is expected to deploy Sir James Eadie QC – the star barrister who led the unsuccessful battle for the government to trigger Article 50 without parliament’s consent – in a sign of the case’s importance.
The lead litigant in the case against the Prime Minister, Susan Wilson, told me this evening:
“Since the outset, the behaviour of the Leave campaigns has undermined British democracy.
“Bad enough that they lied and misled the public on an industrial scale, but they added insult to injury by breaking electoral law.
“The Electoral Commission proved the scale of the misdeeds but have no power to act, so that task was left to members of the public like myself, who felt we had no choice but to act.
“The result of the referendum cannot be trusted and we will argue in court that it should be declared invalid.”
The Electoral Commission’s representative explained to me how the the current law is time limited in so far as challenging the result of an election or referendum.
“The only way an election result can be challenged is if a petition is launched within 21 days to the Elections Petitions Office at the High Court. We include details in our guidance for candidates which you can see on this link (paragraph 1.10 onwards).
“With regards to the EU Referendum, the referendum result was likewise only subject to challenge by way of judicial review. Any challenge to the EU referendum result must have been brought before the end of six weeks beginning with the certification of the ballot papers counted and votes cast.
“This is set out in paragraph 19 of Schedule 3 to the European Union Referendum Act 2015.”
The spokesperson added:
“As you can see, these processes are set out in law. Any change to the law would be for the Cabinet Office to make. I should add that the UK’s Law Commissions’ made a series of recommendations in 2016 to modernise electoral law which we wholeheartedly support.
“One of their recommendations was to make it easier to challenge an election or referendum result. That would all require a change to the law. So again, you may want to contact the Cabinet Office.”
So, my next call was to the UK government’s Cabinet Office, which is a department of the Government “responsible for supporting the Prime Minister and Cabinet” and ensuring “the smooth running of government”. In charge of the Cabinet Office is David Lidington, who was previously a Minister for Europe.
I shared the Venice Commission’s code with Mr Lidington’s office and reported back what the Electoral Commission had told me.
I queried why the Electoral Commission does not have the power to annul an election or referendum, as recommended in the Venice Commission’s code.
I also added that whilst the referendum result could only be challenged within six weeks of the referendum taking place:
“Only now are we discovering seriously irregularities in the conduct of certain parties in the EU referendum, long after the expiry of the six weeks.”
I put four questions to the Cabinet Office:
- What is the government’s view about the Law Commissions’ recommendations, especially in regard to making it easier to challenge an election or referendum result?
- If serious irregularities are discovered in a UK election or referendum, should it not be possible to challenge this beyond the current very short deadline?
- Why doesn’t the UK follow the Venice Commission’s Code of Good Practice for Referendums, by allowing an appeal body (presumably the Electoral Commission in this case) to have the power to annul an election or referendum where “irregularities may have affected the outcome”?
- Is the government planning any new legislation in this regard?
A spokesperson for the Cabinet Office replied:
“It would be helpful if you could let me know me what is the angle of your story? Are you making the case that the referendum should be annulled because of the Venice Commission’s Code?”
The spokesperson added:
“Your second question I think should be directed to lawyers, it’s not something we could answer.
“With regards to your third question, the Electoral Commission brought out their own report in the Referendum and said it was well run. If you want anymore on that I suggest you ask them.”
So, I went back to the Electoral Commission to ask them if it was still their view that the referendum “was well run” as claimed by the Cabinet Office?
The Electoral Commission responded:
“We published two reports on the EU Referendum. The first one – in September 2016 – focused on the administration of the poll. We reported that the administration of the poll was well-run and still stand by that view.”
The Commission spokesperson continued, however:
“We published a report on the regulation of the referendum in March 2017 and made recommendations to the UK Government about how there need to be improvements made to the rules ahead of any future poll.
“Obviously since the referendum we have concluded a number of investigations into EU campaigners and we continue to call for changes to the law that would make it easier to regulate any future poll.”
I went back to the Cabinet Office (on 13 November) with the following comments regarding their question as to whether my article would put the case for annulling the referendum:
“There are concerns about the conduct of the Referendum campaigns because evidence is emerging of alleged fraud, and criminal acts by Vote Leave, Cambridge Analytica, and Aggregate IQ: illegal overspending, psychologically profiling and targeting people with online ads, based on stolen data.
“This issue has become even more serious because the legal opinion of three barristers is now public on how Vote Leave, and its organiser Dominic Cummings, allegedly committed criminal offences.
“In addition, Leave.eu has been fined the maximum amount possible by the Electoral Commission for multiple breaches of electoral rules, and in addition fined by the Information Commissioner’s Office for serious breaches of data laws.
“Furthermore, suspicions about the source of millions of pounds loaned to Leave.eu by Arron Banks is now the subject of a criminal investigation by the National Crime Agency.
“However, I am not in a position to judge whether these irregularities in themselves were of such a magnitude as to have affected the result of the referendum.
“The point of my email to you, and of my article, was to enquire why it is in the UK that our Electoral Commission does not have the power, as specifically required in the Venice Code of Good Practice for Referendums, to annul an election or referendum result if it is deemed that such irregularities had affected the outcome.
“Are you able to provide an answer?
“I would of course, not expect the government to comment on such a contentious question as to whether the irregularities in the referendum were sufficient to have nullified the result.
“My question was more general: why is there no power by the regulatory authority to annul an election or referendum result if irregularities are discovered that could have affected the outcome? Lawyers may have an opinion on this, but it will depend on the current law, and the powers conferred onto the regulatory body.
“Which comes to my fourth question on what is the government’s view of the UK’s Law Commissions’ recommendations in 2016 to modernise electoral law, especially their recommendation to make it easier to challenge an election or referendum result?
“Does the government support these recommendations? Is the government planning any new legislation in response to the Commissions’ recommendations? If not, why not?
“I look forward to your reply.”
The next day (Wednesday 14 November) the Cabinet Office spokesperson replied:
“Apologies I’ve not been able to get a response today. I’m hoping to come back with a response first thing tomorrow.”
The next morning, Thursday 15 November, I received the following reply:
“An Act of Parliament is required before any UK-wide referendum can be held. There are thorough parliamentary procedures in place to ensure that any referendum legislation is scrutinised and debated.
“The European Union Referendum Act 2015 was scrutinised and debated in Parliament. The Act set out the terms under which the referendum would take place, including the means by which a challenge of the referendum result could be brought.”
This seemed to be an entirely inadequate response to my questions to the government.
I asked the Venice Commission to comment, but they replied that they did not ‘have a mandate’ to comment on the situations in member states. I also asked how many of the Commission’s member states have an appeals body that has the authority to annul a referendum or election result in the case of serious irregularity? They plan to have this information available next year.
The Venice Commission (also known as the European Commission for Democracy through Law) is the Council of Europe’s advisory body on constitutional law. The Council (which is not part of the European Union) was founded in 1949 to uphold human rights, democracy and the rule of law in Europe.
Although the Venice Commission’s Code of Good Practice on Referendums is a voluntary code only, it was set up for a reason and has been accepted by the Committee of Ministers where all member states, including the UK, sit.
In a ‘solemn’ declaration regarding the adoption of the Code in 2004 it was stated that the Committee of Ministers recognised, “the importance of the Code of Good Practice in Electoral Matters, which reflects the principles of Europe’s electoral heritage.”
On 27 November 2008, “the Committee of Ministers adopted a Declaration on the Code of Good Practice on Referendums for the purpose of inviting public authorities in the member states to be guided by the Code of Good Practice on Referendums.”
It’s becoming increasingly clear that there were serious and illegal irregularities in the EU referendum of 2016 that, over two years later, we are only now learning more about, with criminal investigations still ongoing.
The law as it currently stands does not provide an easy or effective way to challenge an election or referendum result. This is wrong.
The Venice Code of Good Practice, in point 3.3 on funding also states that:
“In the event of a failure to abide by the statutory requirements, for instance if the cap on spending is exceeded by a significant margin, the vote may be annulled.”*
Leave.eu has been fined the maximum amount possible by the Electoral Commission for multiple breaches of electoral rules, including exceeding the cap on spending by a significant margin. These, I believe, are sufficient grounds to annul the referendum.
But also ongoing are criminal investigations as to the source of £8 million of funds that Arron Banks, the founder of Leave.eu, “loaned” to the campaign. The Electoral Commission suspect that these funds may have come from foreign sources, which would be illegal under UK law. This is currently the subject of a police investigation.
If proven, the case against the referendum being valid would be unassailable.
Commented Dr Ewan McGaughey, Senior Lecturer of Law at King’s College London:
“A fundamental principle of the common law is that votes can be declared void for substantial irregularity.”
“Most people voted for Brexit because they are honest: they believed promises and arguments about the EU’s democratic deficit or investing in the NHS.
“It is clear that certain organisers of Brexit were prepared to say anything, do anything, with anyone’s support, to get the result.
“We need to raise the integrity of public discourse, so this can never happen again.”
We await the verdict of the High Court.
But the bottom line? The referendum result is unsafe. We cannot possibly proceed to change our country forever based on such a dodgy ‘election’.
* Until last month, the English version of the Venice Commissions Code of Good Practice on Referendums stated that, “In the event of a failure to abide by the statutory requirements, for instance if the cap on spending is exceeded by a significant margin, the vote MUST be annulled.”
However, a review of the Code’s translation from the original French to English revealed that this was a mistranslation and the word “must” should have been “may”. Subsequently, a revised English version of the Code was published on 25 October 2018. The Commission has written to give reassurance that the use of the world ‘must’ in the following code is, however, correct: ‘‘The appeal body must have authority to annul the referendum where irregularities may have affected the outcome.”
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