The High Court has made a remarkable ruling in the long-running legal battle over Vote Leave’s spending in the EU referendum, finding that the Electoral Commission itself issued incorrect advice to Leave campaigners during the referendum.
Their mistake means that Vote Leave and other Leave campaigners have been embroiled in a hugely costly legal battle for two years – solely as a result of erroneous advice given to them by the Electoral Commission in the first place.
Vote Leave are clear that they would not have made donations in the way they did had they not secured explicit written advice from the Electoral Commission that it was legal to do so. Former Vote Leave Chief Executive Matthew Elliott described it as an “Alice in Wonderland” situation:
“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.”
Elliott added that the situation was a “mess of the Electoral Commission’s own making” and that the ruling had thrown electoral law “into total chaos”:
“The Electoral Commission’s defeat in the High Court today has thrown electoral law for future elections and referendums into total chaos. Either the Electoral Commission is wrong or the High Court is wrong.
“Should the Electoral Commission choose not to appeal this judgment, they will be admitting that they gave Vote Leave incorrect advice and they should immediately reconsider the unfair fines they are seeking to impose on us because Vote Leave would not have made the donations that it did had it not been for the Commission’s clear advice.
“This whole situation is a mess of the Electoral Commission’s own making, and their defeat in the High Court today must force a rethink. They now have a chance to rectify their errors. They should do the right thing.”
The law on campaigners working together is notoriously unclear, which is why Vote Leave sought to clarify it with the Electoral Commission in the first place. How can the Electoral Commission go ahead with fining Vote Leave entirely on the basis of an error they made themselves?
The High Court’s judgement describes the Electoral Commission as “unconstructive”, “arbitrary” and lacking “any rational basis” for its actions. They have ruled that the Electoral Commission itself does not understand electoral law. How can the Electoral Commission possibly be fit for purpose if it does not even understand electoral law itself?