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Since the European Union (Notification of Withdrawal) Bill was enacted so swiftly, the political implications of R(Miller) v Secretary of State for Exiting the European Union  2 WLR 58 appear less significant than some of its proponents originally believed. The majority judgment in Miller was firmly anchored in constitutional principle. But its political impact has been distinctly muted.
A key message since the Brexit referendum is that Parliament is obliged to give effect to the democratic will which the referendum expressed. But would that approach be so convincing if the Courts had been given the opportunity to adjudicate on whether the referendum was disfigured by false statements made by the official campaigning bodies?
In September 2016 the Electoral Commission said in its report into the 2016 EU Referendum, (page 4) that:
Our public opinion research asked whether respondents thought that the conduct of the referendum campaigns was fair and balanced. Just over half of respondents (52%) disagreed with this statement with 34% disagreeing strongly. By comparison 34% agreed with the statement that the conduct of the campaigns was fair and balanced – only 12% agreed strongly.
The main reasons given for thinking that the conduct of the campaign was not fair and balanced were because they believed it was one-sided/unbalanced/biased/partial (31%) and the information was inaccurate and misleading (31%).
Following the announcement of the referendum result there continued to be significant public commentary about the “truthfulness” of certain campaign arguments, including from politicians on both sides of the referendum debate.
Shortly after the referendum result, some colleagues and I were contacted by a crowd funded group. They wanted to bring a criminal prosecution against those who made allegedly dishonest statements during the referendum campaign. We advised that these criticisms could be addressed in a case brought before the Divisional Court. However, the crowd funding group decided to take a different route, and, despite numerous discussions with other interested groups, no one decided to run with the case, so that the claim became time barred. The experience also provided important insights into profound issues about access of justice to the Court, which Tom Hickman has so eloquently expressed in ‘Public Law’s Disgrace’, U.K. Const. L. Blog (9th Feb 2017).
The Brexit case which might have been brought
Section 115(2)(b) of the Representation of the People Act 1983 creates a criminal offence: where a person, by abduction, duress or any fraudulent device or contrivance, compels, induces or prevails upon (or intends so to compel, induce or prevail upon) an elector or proxy for any elector either to vote or to refrain from voting. The leading case on s 115 is the Court of Appeal decision in R v Rowe ex p Mainwaring  1 WLR 1059. Mainwaring concerned an election leaflet had been designed by the Liberal Democrats to give the appearance of being a Labour Party publication- with the intention of deceiving voters. The Court of Appeal decided that a person accused of a corrupt practice before an electoral court should only be held to have committed it if the allegation is proved beyond reasonable doubt.
Where a s 115 offence is alleged, the 1983 Act permits an application to be made to an election court both in relation to parliamentary elections (see s 120) and local government elections (see s 127). The DPP can also prosecute s 115 as a criminal offence; and a person convicted will then be sentenced in accordance with s 168.
The EU Referendum Regulations preserve an s 115 offence under Sch 1 para 32. Sentences for an offence under s 115 (if the DPP prosecutes) under s 168 are, again, preserved by Sch 1 para 37 of the 2016 Regulations.
In a Parliamentary or local election an Election Court can decide to void the election if a breach of s 115 offence is proved. Unsurprisingly, no parallel provision exists under the 2016 Regulations. Importantly, however, the EU Regulations do not ensure that a breach of s 115 must be exclusively pursued in a criminal prosecution. A claimant could, therefore, apply to the Administrative Court to seek a declaration that s 115 has been breached- since it has become clear for many years that the court will grant declaratory relief whenever there is a real issue between the parties who have a genuine interest in contesting an issue and there is a need for some relief to be granted: see R v Secretary of State for Social Services ex parte Child Poverty Action Group  2 QB 540 per Woolf J at 556.
In the election context the right to freedom of expression under Article 10 has no application to findings of dishonesty, which a contravention of s 115 necessarily involves. In R(Woolas) v Parliamentary Election Court  QB 1 the Divisional Court expressly held that Article 10 was not engaged in relation to statements made dishonestly.
Both of the official EU referendum campaigning bodies were accused of making deliberately false statements, which they must have been known to be false. For example, the official Leave campaign coach that toured the country had emblazoned on it “We send the EU £350m a week. Let’s fund our NHS instead”. The same message appeared on posters which were backdrops to Boris Johnson MP’s speeches, the apparent leader of the Leave campaign (see here). That message was propounded throughout the whole campaign- even though chair of the independent UK Statistics Authority, Sir Andrew Dilnot, said on 27 May 2016 that the Leave campaign’s various claims about the purported £350m in weekly contributions by the UK to the EU were erroneous.
Another claim repeatedly made by the Vote Leave Campaign was that Turkey is on the verge of joining the EU. Its final campaign leaflet included a graphic map entitled “Countries set to join the EU”. The map included the Middle Eastern states of Syria and Iraq, both of which share a border with Turkey. Turkey is bordered by the EU Member States of Bulgaria and Greece, and yet the graphic map illuminated only Syria and Iraq.
The Remain Campaign too made a number of allegedly false statements. Its campaign website stated (on the page ‘get the facts’, under the heading ‘our economy’) that “The Governor of the Bank of England says Brexit would lead to an economic shock – or recession – which would mean dramatic public spending cuts, job losses and years of financial insecurity for your family” – although the Governor said recession was possibly a consequence, not a certainty. Similarly, the Remain Campaign made a misleading oversimplification to say that the ‘cost’ ‘for every household’ of leaving the EU would be £4,300.
The obvious defendants in any judicial review proceedings brought about allegedly false statements were the two official referendum campaigning bodies, Vote Leave Limited and Open Britain Limited. In the first instance any claimant would have to show that these bodies were amenable to judicial review. Consequently, it was important to examine the statutory framework which regulated the Electoral Commission’s decision to confirm which campaign bodies might be ‘designated organisations’. Schedule 1, para 9(1) of the European Union Referendum Act 2015 amended s 108 of the Political Parties, Elections and Referendums Act 2000- and s 108 defined designated organisations. Section 110 of the 2000 Act (as supplemented by Sch 12) provided that designated organisations with various rights: grants of up to £600,000, an entitlement to receive addresses to which campaign literature can be sent, the right to secure public rooms for meetings without charge and the right to make campaign broadcasts.
It is strongly arguable this statutory recognition of the official campaign bodies meant that its activities were carried out in the exercise of its statutory functions. The statutory underpinning of the official campaign bodies activities had woven them into the fabric of public regulation (see Sir Thomas Bingham M.R. in R v Jockey Club ex p Aga Khan  1 W.L.R. 909 at 921 and/or they were established under the authority of government (see R v CICB ex p Lain  2 Q.B. 864 at 884 (Diplock LJ), cited with approval in R v Panel on Take-Overs ex p Datafin  1 Q.B. 815 at 849 (Lloyd LJ). Their position was analogous to that of the Office of the Independent Adjudicator considered by the Court of Appeal in R(Siborurema) v Office of the Independent Adjudicator  ELR 209. The Office of the Independent Adjudicator, a company limited by guarantee, had been designated by the Secretary of State, which imposed obligations on it to comply with the statutory scheme. The Court of Appeal, therefore, held the Independent Adjudicator was a public body by virtue of the statutory context and nature of the functions performed by the Adjudicator.
The obstacles to access to justice
After the crowd funding organisation decided against pursuing a judicial review claim, a range of individuals and groups emerged as potential claimants. However, a number of practical difficulties emerged, which prevented any claims from going forward.
First, the proposed litigation would be fiercely contested and would, inevitably, expose claimants to expensive costs, even at the permission stage. A defendant which responds appropriately to a pre-action protocol letter and has filed an Acknowledgment of Service will, generally, recover the costs of filing it where permission is refused: see R(Mount Cook Land Ltd) v Westminster City Council  2 P & CR 405 [76.1]. We advised the client that a hotly contested permission hearing against two defendants might have exposed it to costs of about £20,000.
The position was, therefore, very different from the position before the Civil Procedure Rules were introduced. Then, less well- off claimants could obtain permission without the benefit of legal aid. For example, in R v Lord Chancellor ex parte Witham  QB 575, where permission was obtained despite no legal aid, Laws J ultimately held that access to the courts was a constitutional right at common law which could be abrogated only by a specific statutory provision.
Secondly, the febrile public reaction to the Miller case was profoundly discouraging to prospective litigants. Outspoken criticisms of the lawyers and claimants led to anonymity orders in the People’s Challenge case and prompted Lord Neuberger to give warnings about contempt of court when the Miller case began.
One option to be considered was to seek permission with the benefit of a protective costs order- so that proceedings could actually be started. But recent Government reforms have removed the Court’s power to grant a Judicial Review Cost Capping Order pre-permission in accordance with CPR 46.16: see s 88(3) of the Criminal Justice Act 2015.
Another long stop was to apply for legal aid. In fact, an application for legal aid was made by a UK national, claiming Disability Living Allowance benefits, who also worked at a college which received funding from the European Social Fund. That funding would cease if the UK left the EU. The legal aid application was considered by the single individual empowered by the legal aid authority to consider legal aid application in relation to Brexit cases; and he maintained his 100% record, by refusing the application.
No Court has ever considered whether false statements were made during the referendum to influence the result. Nevertheless, had a Court decided that an official campaigning body was guilty of contravening s 115, the broader political implications may well have been significant. What impact, if any, of an adverse finding against the official campaign bodies in such proceedings on subsequent events is therefore anyone’s guess.
I would, in particular, like to thank my colleague, Michael Paulin for all his assistance.
Richard Clayton QC is practising barrister at 7 Bedford Row and is a Visiting Professor at UCL.
(Suggested citation: R. Clayton, ‘The Brexit Case That Never Was’, U.K. Const. L. Blog (22nd Mar 2017) (available at https://ukconstitutionallaw.org/))