Four separate reports have fatally undermined the Brexit vote, argues Ewan McGaughey (King’s College London). They show how Russia used the Leave campaigns, official and unofficial, to sway the referendum. A case soon to be heard in the High Court will argue that the result should consequently be deemed void.
Four reports from the US and UK on the Brexit poll have damaged the legitimacy of the vote. They documented the Kremlin-backed cyber-war, the harvesting of UK voters’ personal data, criminal overspending, and how the biggest donation to Brexit, £8.4m by Arron Banks, may not have come from the UK. (Banks denies his money came from a Russian goldmine, but failed to sue those who said he ‘colluded w/ Russians to deliver #Brexit’, and Banks’ lawyers dropped him.). Now a legal case is listed for 7 December to declare Brexit void, and nullify notification of article 50. It is being led by two QCs against the Prime Minister. The campaign for a ‘People’s Vote’ on the actual deal – not a mystery Brexit prize – is also gathering strength. So after four reports, is a funeral for Brexit coming soon?
The reports make compelling viewing. First, in January 2018 a US Senate minority committee documented how ‘Putin’s Asymmetric Assault on Democracy’ in the UK was coming ‘into sharper focus’. It said this was ‘all the more stunning given the innate resilience within British society to the Kremlin’s anti-democratic agenda.’ Before he quit the Foreign Office on 9 July, Boris Johnson told a Commons committee he hadn’t seen ‘a sausage’ of evidence for Russian interference in Brexit. That appears to have been as truthful as a certain bus.
Second, released on 11 July, the Information Commissioner’s Office issued a ‘notice of intent’ to bring the maximum fine against Facebook, for allowing ‘harvesting of data’, which ended up in the hands of the Leave campaigners. The fine was imposed on 25 October. The ICO explained how Facebook enabled online ads to be psychologically targetted at UK voters. Vote Leave leader Dominic Cummings said after the referendum he ‘dumped our entire budget in the last 10 days, and really in the last three or four days’. This targeted ‘roughly 7 million people, who saw something like one and a half billion ads’.
Third, on 17 July, the Electoral Commission’s Report announced a fine against Vote Leave for (at best) recklessly breaking its legal spending limit by £449,079.34. It coordinated a ‘common plan’ with its youth wing, BeLeave, to overspend. This amounted to 6.4% excessive spending, compared to a margin of 1.8% of voters in the poll result. Would Vote Leave have won without that spending and advertising? According to Cummings, ‘All our research and the close result strongly suggests No.’ The same goes for Vote Leave’s criminal offences.
In the fourth report, perhaps the most shocking, the Conservative-led Department for Culture, Media and Sport select committee concluded Russia engaged in ‘unconventional warfare’ during the Brexit campaign. This included ‘156,252 Russian accounts tweeting about #Brexit’ and posting ‘over 45,000 Brexit messages in the last 48 hours of the campaign.’ As it said, Kremlin-controlled media, ‘RT and Sputnik had more reach on Twitter for anti-EU content than either Vote Leave or Leave.EU, during the referendum campaign’. This alone is damning – but we know it is nowhere near the full extent, because Facebook and Alphabet (which owns YouTube and Google) have not been forced to disclose how their platforms were exploited. The DCMS committee did not undertake legal analysis, but it is an offence for broadcasts (which include memes or videos online) ‘to influence persons to give or refrain’ from giving their votes ‘from a place outside’ the UK. Aiding and abetting a crime is also potentially a crime. This should enable the police to force Facebook and Alphabet to disclose its data on the extent to which Russian-financed bots exploited ‘like’, comment and sharing functions.
The select committee also backed the National Crime Agency’s investigation of Banks, which began on 1 November. Banks – a failing insurance salesman – ostensibly gave the biggest political donation in UK history to Brexit: £8.4 million. The committee said Banks ‘failed to satisfy us that his own donations had, in fact, come from sources within the UK.’ It is reportedly clear that the Kremlin offered Banks a multi-billion dollar goldmine. Banks tweeted four weeks after the Brexit poll “I am buying gold at the moment & big mining stocks.” Taking money from a hostile foreign party would be a national security issue of the highest order: with ‘unconventional war’ it may raises the prospect of offences under the Trading with the Enemy Act 1939. Vince Cable called it ‘treason’.
These four reports are just the tip of the Brexit-berg. Professor Timothy Snyder, a Yale historian, explains in The Road to Unfreedom how Russia has engaged in hot, cold, and cyber-war against Europe and America. A turning point appears to be the run-up to both the Ukrainian conflict and the Paris climate agreement of 2014. Putin has long mocked the existence of manmade climate damage. Russia’s exports are 60% fossil fuels (compared to China with 2% or the UK and US around 8%). When we get a zero-carbon economy, Russia’s economy is in serious trouble because its oligarchs are failing to diversify. This is why Russia backs climate-damage deniers or sceptics everywhere: Donald Trump, Marine Le Pen, the Alternative für Deutschland, Lega Nord, the United Kingdom Independence Party, or indeed Vote Leave’s CEO Matthew Elliot, who co-founded the Conservative Friends of Russia.
The illegal data harvesting, the overspending, the cyber-war by Russia, the possibly criminal source of the biggest donation to Brexit, delegitimise the Brexit poll. This matters because at common law, votes can be void when they break the law. The common law principle applies to both elections and referendums. First, in the leading case called Morgan v Simpson, the Court of Appeal held if an
‘election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not.’
Second, where there is an irregularity – even one that is not major – that ‘did affect the result’ (and it is arguable it did for Brexit) a vote must also be declared void.
This specific rule, which requires a vote is free and fair, is connected to the general principle that ‘fraud unravels everything’. As a leading case once said, ‘No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.’ ‘Fraud’ in law is an objective concept. It implicates the fraudulent appropriation of Facebook data; Vote Leave ‘knowingly or recklessly’ overspending; the fraudulent pretence that Russian cyber-bots or algorithms were a legitimate part a UK political discourse; or potentially fraudulent funding of Brexit by Russia through Arron Banks. It means that the ‘order’ of the Prime Minister to trigger article 50, and negotiate to leave, could be unravelled.
The case that will argue this – which begins on 7 December – is called Wilson v Prime Minister. The full grounds are well worth reading, but its opening sentence is the nub: the question is whether a ‘free and fair vote is one of the constitutional requirements of the United Kingdom’. Wilson and the other claimants submit that it is.
Now, it’s a big thing to litigate the very validity of Brexit. But if Russian athletes win Olympic medals when they are taking drugs, their victories are not valid. The same is true of a corrupt vote. The Prime Minister’s lawyers have already said that maybe the PM knew about the possibility of fraud, and has gone ahead with Brexit anyway. If that’s true (without having the full facts) the PM’s discretion can still be declared void because she didn’t take into account relevant considerations: the full extent of the fraud.
What’s clear is that the UK is now in a terrible situation. It’s not just the economy. We are genuinely facing the breakup of the country: the end of a 210 year union between Britain and Northern Ireland, and the risk of ending a 311 year union with England, Wales and Scotland. For Putin, the ability to disable two permanent members of the United Nations Security Council in two years is a genuine geopolitical victory. It didn’t work with Le Pen in France, and it can’t touch China. But it gave the UK Brexit, and it gave the US Trump. Our senior politicians need to look impartially and dispassionately at what has been unfolding, and act.
After the last physical invasion of British sovereignty, in 1947, the Electoral Law Reform Committee said irregularities in votes were ‘attempts to wreck the machinery of representative government’ and ‘an attack upon national institutions which the nation should concern itself to repel.’ Our constitution is not codified, but it is written in the case law and the statute books. The law tells us every vote must be free and fair. If Brexit was not, as four reports show, it looks like it’s time for a funeral.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. It is based on a forthcoming article, ‘Could Brexit be void?’ (2018) King’s Law Journal.
Tripe is too kind.
I don’t remember putin twisting my arm and I don’t do this antisocial media thingy!!!!
There has been though for many years a theory that subliminal messages can influence people’s thinking.
Nike did it for years with trainers, targeting kids to want the latest.colour and for them to bring pressure upon parents.
Now some LSE articles do exactly the same.
It’s ok accusing Russia it may be true
But what is this article other than another vain attempt to persuade people to overturn Brexit?
Get over it!!!!
We are not as stupid as you may aspire to!!
There is no evidence suggesting that votes were not correctly counted, or that voters were under duress or that people legally qualified to vote were illegally prevented from voting in a way that might have changed the result of the referendum. Of course there was a lot of misinformation floating around, but both sides had plenty of time and resources, online, in the newspapers and in the broadcast media, to counter this. If misinformation is enough to invalidate a democratic decision we might as well abandon democracy.
With respect, we’re not talking about “misinformation” (against which there is no law), we’re talking about criminally culpable foreign interference, criminal overspending, and potentially the largest donation to Brexit being Russian financed.
What you have to ask yourself is whether you care more about democracy and our sovereignty than a plan to leave the EU, about which (as I write today) will still do not know what it means. This kind of chaos is exactly what the Kremlin wants for all of the democratic world. Brexit, Trump, Le Pen, Lega Nord, AfD…
“we’re talking about criminally culpable foreign interference”. What crime exactly? The article states “it is an offence for broadcasts (which include memes or videos online) ‘to influence persons to give or refrain’ from giving their votes ‘from a place outside’ the UK.” Is it really? Here I am sitting outside the UK, am I committing a crime by posting to this blog? If some commentator abroad says something nasty about a UK politician, is this criminal? Does it also count as a crime if someone in the UK criticises Donald Trump in a forum which might be read by US citizens?
“potentially the largest donation to Brexit being Russian financed” The article above quotes a legal precedent in support of its thesis: “The court is careful not to find fraud unless it is distinctly pleaded and proved” , Is there actually anything remotely approaching proof that this donation really happened and that there is a significant chance that it changed the result of the referendum?
The referendum campaign went on for many months. I think both sides had quite enough chance to present their views. For example the disgraceful 350m Brexit bus lie by Vote Leave was repeatedly shown up by the BBC coverage. There were other lies on the other side which were not shown up, for example David Cameron’s assertion that “I’ll pull UK out of the single market after Brexit” (https://www.politico.eu/article/david-cameron-bbc-andrew-marr-ill-pull-uk-out-of-the-single-market-after-brexit-eu-referendum-vote-june-23-consequences-news/) – if the British electorate had known that by voting Leave they would get rid of Cameron, instead of him staying around to take the UK out of the single market, I suspect the Leave majority would have been higher!
“What you have to ask yourself is whether you care more about democracy and our sovereignty than a plan to leave the EU, about which (as I write today) will still do not know what it means. ”
I care first of all about democracy. That’s why I think Brexit has to go ahead, even though I think it is probably a bad idea.
If you cared about democracy then presumably you protested when the Government spent £9.3 million putting a leaflet through each door and then subsequently put spending limits on the Remain and Leave campaign. Presumably you protested when Osborne compromised the independence of the Treasury by persuading them to put out a bogus short term forecast which we now know bore little resemblance to reality. Presumably, you protested when the Government used the facilities of office to back up the case for Remain but refused the Leave side the same access to public servants and expertise.
Speaking personally, I wasn’t influenced by Social media because I don’t use it and the same is true of most people over fifty. I did however hesitate at the ballot box. What if the Treasury forecast was right and my vote would cause 500,000 people to lose their job? Fortunately, I correctly judged that this was pure propaganda, but I can’t help wondering how many people were duped into voting Remain.
What was propaganda?
The remain were taliking facts ! The Brexiteers were talking with forcasts.
Courts prevented British passport holders to vote ! A scandalous decision.
Courts prevented EU presenting their case why ?
All media blocked everything to do with EU and what they have done for this Country.
People have no idea of what EU has really done for Britain.
Just remember what Britain was before joining EU !!!! We do not want to go back to these days.
Haven’t you seen companies running away from Britain because of Brexit.
Have you wondered how much Brexit has cost up to now?
(A school a week or a hospital a month)
Have you wondered who financed Farage to support Brexit ?
Brexiteers do not accept that so many actions have been taken because of Brexit and this is going to effect the economy really badly.
Why do you think our politicians are fighting for a good deal?
Time will show who was right and who was wrong BUT the country needs people who care for the welfare of the country MORE than they care for their own pockets.
After all we want the best for Britain but the Politicians who support Brexit do they?
So many lies, so many scandals copmmitted by Brexitters & they started coming out.
At first, I found Ewan McGaughey carefully expounded argument persuasive. But then, once I’d read David Boulding’s counter-argument, I realised I’d been taken in. Thanks, David, for explaining it properly.
This article serves as an excellent reminder to become more aware of ads aimed at us: why do we receive them and who might be the originator? I do not engage much with social media – it is too time consuming – but it is obvious that we are “read” and “targeted” in ways that are out of our control (no sovereignty there!). .
Unfortunately, because this country does not know how to design, organise and run referendums (I have much experience of those from living in Switzerland) – no reliable information was available. And many other referendum related rules were not observed (for example the difference in percentage needed to trigger change). And the first rule being that a referendum should be triggered by the people, and not the politicians.
So, in an atmosphere of being presented with lies (and they were quite obvious lies) – and the press playing no fact based role but rather taking sides, people will have been very susceptible to what sounded genuine on social media – especially if they felt it supported their view and strengthened their arguments.
Taking all that into account, what Mr Mc Gaughey says is good to know and shows that whilst neither side was great, the Brexit camp was fraudulent with intent.
The LSE is also about political science. In the last few days, a great many more people in the western democracies, socalled, have had occassion to re-assess what politics really means. I dare say, in the rest of the world few people would have illusions about what politics means. As to the the umpteenth attempt to find a tiny opening somewhere to persuade waverers that, yes, perhaps one ought to look at having a second referendum, maybe a few people without their political compass out of order would go over and desist at least from protesting vehemently against any attempt by the government to have another referendum…, but frankly..
I understand that university graduates without a job need to do something, but for someon who has kept abreast of what’s been happening through the MSM, I find the notion that because of Russia, the Brexit referendum should not be regarded as valid patently risible. One would hope this is the lowest point in the playing of political manoeuvres in the context of western European political contestation, but I think we have not seen the bottom of it yet, considering the May government using almost carbon copy EU methods to simply buldoze their way through thick and thin. It’s bizarre. Some day people will look back and cannot believe the depths anti-democatic sentiment would stoop to drive through an agenda which, we can be certain, is not of their own making. At least, any who voted Remain who now still believes that the EU and traitorous national governments are a good thing must think that the kind of rule the People’s Republic of China dishes out is the best way to go for the world. That’s right, the EU and its supporters are heading for that kind of rule.
The revival of McCarthyism in the USA is sadly not a surprise, but its emergence in the UK is genuinely alarming. Does Ewan McGaughey really believe this paranoid nonsense?
Many watch with heart in mouth this last few days.
Jacob has hit the nail very eloquently above, and so has Teejay.
I now conclude firmly that two prime ministers have gone to Europe in a genuine attempt to improve the position for the UK.
Both have effectively returned with nothing.
There are NO celebrations going on in the U.K. but Europe appear to be ecstatic about the final ageeement.
Various political organisations have done nothing to strengthen the arm of the government, quite the opposite, and we have it appears ended with a poor deal for the U.K.
As a strong leaver, I had hoped that we could have seen a sensible outcome but alas no.
I now hope that the matter is voted down and the only alternative is a no deal.
I believe the U.K. voters can see the nonsense and bickering still going on, where one side is more interested in getting to power than doing the right thing by the country.
Those who voted stay and operated disruptive tactics should blame themselves for this outcome, Tereisa May had the impossible to perform, and that was made worse by the tacticians.
“I believe the U.K. voters can see the nonsense and bickering still going on, where one side is more interested in getting to power than doing the right thing by the country”
I’n confused. Which side is more interested in getting into power by backing Remain or a exit with a deal. Backing remain is not really a huge vote shifter. It may be that the majority of the country back remain now, but that does not mean that those same voters would return a win for any party.
“I now conclude firmly that two prime ministers have gone to Europe in a genuine attempt to improve the position for the UK. Both have effectively returned with nothing.”
This simply exposes the weakness of the British position. It also reflects genuine EU concern over what is going to happen in Ireland following Brexit (not that no-deal will help). This same weakness will also become clear when we eventually negotiate trade deals with the USA etc.
“Those who voted stay and operated disruptive tactics should blame themselves for this outcome, Tereisa May had the impossible to perform, and that was made worse by the tacticians.”
Teresa may put various deals to the government and they were rejected. Who was disruptive in this case? Hard Brexiters were certainly part of that problem.
So what the article is implying is that pensioners were swayed by Russian sponsored internet memes and online videos…pensioners being the group that uses the internet the LEAST in Britain… The second largest group to vote for Brexit was the age 50 to 64 category, and as it so happens, the second lowest user group of the internet in Britain. The age groups that used the internet the most often in Britain were also the groups who voted for Not Leaving. I do enjoy a good incongruent opinion piece, but checking the numbers of affected groups would be a smart move before arbitrarily declaring who influenced whom…
So your “sausage” of evidence is that some Russians commented on Brexit on social media, and some Russian news agencies published stories about Brexit. Of course, British people never comment on foreign politics, and British news organisations never publish stories about foreign affairs. We’re far too insular for that.
As the man said, “Tripe”.
Bollocks to Brexit, but you won’t make a case against it by blaming Russia for having news agencies and social media accounts. Grow up.
I want to sound out a possible consideration.QC Eadie was counsel for the Respondent David Davis in Miller, Dos Santos. At the end the case there was a statement for the Respondent accepting that Henry VIII powers could not be invoked. The EUR2016 was advisory only. There was no obligation for the government to implement the result. Conceitedly tagged onto the acceptance of the Supreme Court judgement that the decision would have to be made by parliament and in so doing an Act would have to be passed to presumably confirm parliament’s decision, presumably after all risk assessments had been scrutinised. The statement in Miller was cunningly used quasi verbatim in the brief to the NoW Act 2017 and it contained a wilful misrepresentation of parliament’s obligation (which would be to abide by the rules of Conduct in Public Office). Instead David Davis misrepresented parliaments’s “duty”, notwithstanding Miller, to respect or honour a “decision already taken” by the people. This was a wilful knowing misrepresentation of the true legal facts. Parliament were mislead, duped into voting for an Act worded in the vaguest of terms (as the EUR Act 2015 before it) that passed the right to decide whether or not to Leave the EU (or not) to the PM alone and set the date for triggering Article 50.
This Act has been cited to justify the PM’s service of Article 50, irrespective of any other considerations than the myth that “a decision was already taken” and the referendum result was a finite premise, whether the result was true or false, valid or invalid.
Webster was turned down as having no merit and being out of time. Likewise Wilson in September 2018. Only that at that time the news was awash with whistleblower evidence, the EC’s findings and referral to the NCA and FB had blown the anonymity of Vote Leave and DUP from whose accounts the lying AIQ and incitement to racial and EU hatred designed dark ads had come plus the Russian bots on Twitter. Yes, “Fraud Unravels Everything”, Yes “turning a blind eye” to a flaw, particularly to evidence of fraud that may be concealed for many a long day, because the source of the unlawful ads was intended to be concealed, so not even in the equitable sense, colluding to conceal “corrupt and illegal practices” is a fraud.
So all hopes were dashed when clever Mr QC Eadie boasted his conceit, admitting that the referendum was tainted, but no matter, Wilson was without merit as the basis for triggering Article 50 was the NoW Act which accorded the PM the right to do it whatever, whether rational or reasonable of not. The matter of the referendum tainted by corrupt and illegal practices (Crofts solicitors main argument) was of no consequence.
Then Fair Vote Kyle Taylor application was refused on the same basis as Webster and Wilson. And QC Eadie was glowing with his own conceit. He probably drafted the NoW Act or had a big hand in it – certainly the brief was penned with his advice, if not the content of the Article 50 letter itself – like how far you can stretch things to enact legislation that makes “corrupt and illegal practices” legal.
Well on 21st February 2019, QC Eadie would now repeat in the clearest of terms, not just that the EC had found that there were multiple criminal offences by the official government Johnson, Gove, Davis, Baker, Fox, or should I say ERG DUP lead executive of Vote Leave and other cheats and FRAUDSTER’S
But that the PM KNEW on 29 March 2017 that the referendum was “illegal” and she KNEW all those offences under the People’s Representation Act that Crofts and WC Simor were pleading. What’s more ha ha ha she knew like every body else did in DECEMBER 2016 because it was public knowledge that there was fraud and corruption. The evidence had been submitted to the EC and complaints to the CPS. So sorry Wilson and others, it’s sewn up in the legal mesh I’ve been spinning like a conjuror. I was angered at the start when I read the Crofts argument that they appeared to be basing their entire argument on offences in electoral law, and not straight deceit, concealment and distortion at any time, under the Fraud Act 2006 or false misrepresentation under the Misrepresentation Act 1967 and what’s more Misconduct in Public Office – or, the law of general contract/agreement – Cameron’s false and constitutionally unlawful premises promised outside no.10, to cutrry votes – and the daily false wilful knowing misrepresentations made on a daily basis to parliament and the public and spouted n the media.
Well thinking of Lord Denning statement in Cage via a vis “turning a blind eye” to something it’s too tricky to understand or Eadie to conceal, doesn’t avail you of the statute of limitation. And now we know the PM knew WHEN she penned the Article 50 letter that at least 3 statements were false.
That means that in notifying Donald Tusk for the EU to accept the notice we now know that TM made false representations wilfully and knowingly – hence fraudulent misrepresentations as defined in Derry v. Peak that old Victorian die hard.
Only where a misrepresentation is fraudulent, made falsely knowingly do the parties set in the contract, order, notice, agreement, letter of invitation to enter a withdrawal contract process have the RIGHT to RESCISSION and though it can be argued that if a negligent representation is made, this can also vitiate the contract when you discover the fact, with fraudulent misrepresentation it is pretty automatic backed up by at least 3 separated Denning references that you not only have the right to rescission but the right to seek damages and compensation for any loss or injury caused to the parties. Now invoking the right to rescission now we know as of QC Eadie’s bombshell admission before judges in a Court, that misrepresentations in the Article (potentially now also an Article of Fraud, as is the 2016 referendum, the misstatements were made fraudulently by the PM, they were not made by the UK people, parliament, or within the constitutional and LEGAL requirements of the meber state snd the caused immeasurable loss and injury to the parties – the UK and the EU 27 – it’s more rational to demand rescission than to try to obtain unilateral revocation, because you can agree to rescind a fraudulent article jointly if you are the innocent parties. Then we have the Fraud Act to support the issue. A fraud is a deceit or concealment that causes a loss and injury to others. They don’t have to be members of the U.K. Electorate – they just have to be humans To take fraud action you do not have to prove who dunnit before you require it to be stopped. You have to stop the crime. If the crime is accomplished by the Deceit in the Article then, the Article and the false and illegal premise on which is founded is vitiated and it has to be stopped to stem the Brecit bleed. Arguably the loss and injury caused to do many millions by this clever deceit is so great and the future risk so very very serious to our national safety and security and HEALTH and PEACE Article 50 and the referendum can be vitiated on that basis alone. So please please would sharp legal minds please start thinking of any clever chess moves that have been missed.
If Article 50 is left to ride – just IMAGINE the number of claims that could succeed against the UK as a member state once tant Withdrawal Agreement is signed. There are more than firms like Eurotunnel waiting in the wings with so many precedents.
The faces financial ruin if it proceeds on false premises, or if it revokes unilaterally.
If we as the UK don’t stamp on this jointly WITH and WITHIN the EU, we will surely be stamped on.
I believe a link is wrong. it is missing ” /wp-content/ ” here is the link: https://www.croftsolicitors.com/wp-content/uploads/2018/08/239484-Grounds-for-Judicial-Review-and-Statement-of-Facts.pdf
When was this article written please?
Thanks for spotting that. I’ve corrected it.
18 November 2018 – it’s in the web address. We are shortly moving to a system where the date pf publication will be much more visible.