The EU referendum must be annulled

Jon Danzig |

There are now calls for the EU referendum to be scrapped and run again. It follows the Electoral Commission’s ruling that Vote Leave, the official Brexit campaign group, significantly broke spending limit rules during the referendum.

The group has been fined £61,000 by the electoral watchdog, which has also called for a criminal investigation.

Former Tory minister, Sir Nicholas Soames, said in the Commons today that the referendum, “needs to be blown up and started all over again.”

Senior Conservative MP Sarah Wollaston said there should be a re-run of the vote because, “we cannot have confidence that this referendum was secure”.  She added, “We are talking about deliberate cheating.”

Labour former minister David Lammy called on ministers to declare the referendum result “void”.

He said:

“Can the government declare this referendum void on the basis of the evidence that we’ve been provided by the Electoral Commission, and if not, given this was an advisory referendum by this parliament, can she bring forward the vote in this parliament to declare this referendum void?”

Labour’s Chuka Umunna described the Electoral Commission’s findings as “shocking”, telling MPs the actions of Vote Leave represented an “affront to our democracy”.

He said:

“Given there was a 4% gap between Leave and Remain, and Vote Leave overspent by just under 8%, does the minister agree with me that we cannot say with confidence that this foul play did not impact on the result?”

But the government was not supportive of this view, and Mrs May has already announced this week that another referendum was “out of the question.”

In addition to the fine, the Electoral Commission has referred David Halsall, the “responsible person” for Vote Leave, to the Metropolitan Police for making false declarations of campaign spending.

Darren Grimes, the head of a separate Brexit youth group called BeLeave – which received a £675,000 donation from Vote leave – has also been referred to the police and fined £20,000 by the Electoral Commission.

Bob Posner, Electoral Commission director of political finance, said that what happened represented “serious breaches of the laws put in place by Parliament to ensure fairness and transparency at elections and referendums.”

Under the rules of the referendum, Vote Leave was supposed to have stuck to a £7m spending limit while campaigning.

But the Electoral Commission ruled that Vote Leave secretly went nearly £500,000 over its limit when it made the undeclared £675,000 donation to Mr Grimes’ BeLeave group.

This comes after the Electoral Commission last May also fined Leave.EU, another pro-Brexit campaign group, the maximum £70,000 for multiple breaches of electoral rules.

The organisation is backed by Nigel Farage and funded by Arron Banks, and played a key role in campaigning for Brexit in the referendum.

The group failed to reveal “at least” £77,380 in its spending following the referendum vote, meaning it exceeded the legal spending limits for the referendum, as laid down by law.

The Electoral Commission has also referred a key figure in Leave.EU’s management team, Liz Bilney, to the Metropolitan Police due to “reasonable grounds to suspect” that criminal offences have occurred.

Both Vote Leave and Leave.EU have strongly denied the allegations.

Last May Mr Posner was also critical of Leave.EU for breaking electoral rules for the referendum.

Mr Posner said then:

“The rules we enforce were put in place by Parliament to ensure transparency and public confidence in our democratic processes. It is therefore disappointing that Leave.EU, a key player in the EU referendum, was unable to abide by these rules.

“Leave.EU exceeded its spending limit and failed to declare its funding and its spending correctly. These are serious offences. The level of fine we have imposed has been constrained by the cap on the Commission’s fines.”

The watchdog found the group had exceeded the spending limit for non-party registered campaigners by at least 10 per cent and said that the unlawful over-spend “may well have been considerably higher”.

A spokeswoman for Scotland Yard told The Independent:

“We can confirm that the Electoral Commission has referred a potential criminal offence under section 123(4) of the Political Parties, Elections and Referendums Act 2000.

“This matter will be subject to assessment by officers from the Special Enquiry Team.”

The Electoral Commission’s investigation also uncovered that Leave.EU did not properly report the receipt of three loans from Mr Banks, totalling £6m, with dates around the transaction and the related interest rate incorrectly reported.

Because the EU referendum was advisory only, the safeguards that allow for legally binding elections to be re-run in the event of rule breaches do not apply.

This prompted Jolyon Maugham QC, the director of the Good Law Project, which launched the judicial review that arguably prompted the Electoral Commission into renewing its investigation into Vote Leave spending, to tell The Independent:

“Legally this ruling doesn’t mean anything for the country. Politically, it should be decisive.”

He explained that the referendum was no more than a “glorified opinion poll” in the eyes of the law.

Subsequently, “The normal safeguards that govern elections that give rise to legally binding outcomes were cut out from the referendum. It is unchallengeable. There is no recourse in law. There is no legal mechanism for overturning the result of this referendum.”

Mr Maugham and others, however, argue that the “cheating” and “very substantial” Vote Leave overspending ruled upon by the Electoral Commission should oblige MPs to disregard the referendum result.

Mr Maugham said:

“The referendum should no longer be pretended to provide any mandate for Brexit. It is now up to MPs to do their jobs and ask themselves whether a referendum that took place against a background of Vote Leave cheating can safely be said to represent the will of the people.”

But he also admitted: “If MPs allow cheats to prosper then we don’t have any democracy left, but, ultimately, if that is what they are prepared to do, there is nothing I or any other lawyer can do about it.”

According to ‘The Code of Good Practice on Referendums’ issued by the Venice Commission, if the cap on spending is exceeded in a referendum by a significant amount, “the vote must be annulled.”

The Code, which is a non-binding guideline, was adopted by the Council of Europe’s Venice Commission in 2006/2007.

The UK is a member of the Council of Europe and has signed up to the Venice Commission.

Their Code of Good Practice on Referendums states under clause 3.3. on referendum funding:

‘National rules on both public and private funding of political parties and election campaigns must be applicable to referendum campaigns.

‘As in the case of elections, funding must be transparent, particularly when it comes to campaign accounts.

‘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.

‘It should be pointed out that the principle of equality of opportunity applies to public funding; equality should be ensured between a proposal’s supporters and opponents.’

The Code is a guide only, and not legally binding.

However, it’s now becoming clearer by the day that the referendum campaign was seriously flawed.

There was significant overspending by both Vote Leave, and Leave.EU, that broke election law, in addition to allegations of criminality and data breaches.

And on top of all the lies and mistruths that the Leave campaigns had to rely upon to win the referendum, there are allegations of possible interference by Russia.

Anyone who believes in democracy, whether a Leave or Remain supporter, should now be seriously concerned about the validity of the result of the EU referendum of 23 June 2016.



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