The allegations of overspending and corruption surrounding Vote Leave’s campaign are a good enough reason to declare the 2016 referendum void, argues Ewan McGaughey and explains the relevant law. He concludes that the greater a vote’s impact, the greater must be its integrity; but there is a bigger question to consider: whether we want to redo the referendum, until technology is made safe for democracy.
The rule of law and Parliamentary democracy must always be defended. They enable a free and just society. People can only speak, organise, and vote freely when the law empowers them to do so equally. We call ourselves a democracy because our laws ban the buying of votes and power. We are not an oligarchy, where politics is ‘decided by the highest spenders’ from golden elevators. This is why the legality of the Brexit poll matters: the organisers of Vote Leave have been accused of fraud, of thieving personal files, and using billionaire cash to corrupt democracy. If the evidence proves true this enables (1) a judicial declaration that the Brexit referendum is void, (2) notification under article 50 to be nullified, and (3) Parliament to take back control.
Brexit can be declared void
We limit spending and foreign interference in our elections to make them fair. If elections for Members of Parliament are corrupted by irregularity, they ‘ shall be declared invalid’ at common law. As the Electoral Reform Committee said in 1947, voting irregularities are not just private wrongs, but ‘attempts to wreck the machinery of representative government’ and ‘an attack upon national institutions’. Vote Leave spent at least £625,000 over its £7 million limit (8.9%). It does not matter if it was separate legal entities that may have done the spending because, with collusion, ‘fraud unravels everything’.
Did spending fraud sway the result? Just 634,751 out of 33.5 million voters (1.8%) needed to switch to leave over remain. The overspent cash went into online advertising, targeted at people based on individual psychological profiles. According to evidence heard by a House of Commons Committee in March 2018, those profiles were built through Facebook and other data, without consent or knowledge of UK voters. They were taken through a Facebook application made by a Cambridge psychologist called Aleksandr Kogan and sold to a New York corporation called Cambridge Analytica LLC, owned by American billionaire Robert Mercer and Strategic Communications Group Ltd. The data was then sold to a Canadian corporation, Aggregate IQ Ltd, hired by Vote Leave to target UK voters. They used the most psychologically manipulative technology known, exceeding spending limits in the process.
We cannot know the causative impact that the alleged spending fraud of Vote Leave had. In law, that uncertainty is even more of a reason that the referendum is void. Overspending not only changed the result on the balance of probabilities: it materially increased the risk of a corrupt vote. And this is not just some council by-election. The greater a vote’s impact, the greater must be a vote’s integrity. There are allegations (though no evidence) that ‘Remain’ overspent: this makes the vote even more corrupt, and utterly void.
Article 50 notification can be nullified
A court can declare any corrupt vote void. If it does, this nullifies the Prime Minister’s notification to the EU of the UK’s intention to leave. Any use of the ‘power to notify’ the UK’s ‘intention to withdraw’ would be irrational, and take into account an irrelevant factor (a corrupt Brexit vote). Notification to negotiate to leave the EU under article 50 must follow the UK’s ‘own constitutional requirements’. The UK may unilaterally revoke the notification, like in the private law of contract. Even if this were a question of EU law, the answer the Treaties require must be one that European Union holds together, not one that allows it to be torn apart.
This summary does not even scratch the surface, or the evidence, of Brexit’s corruption. Elections, and the Brexit referendum, can also be void if there are broadcasts ‘from a place outside’ the UK, that includes a programme on an electronic communications network. It is clear Russian bots were active on Twitter. The ripple effect is incalculable. Youtube has stayed silent about its network, while Facebook has issued denials that it was exploited – even though Russian bots were targeting American voters around the same time. Even though Putin’s Russia has supported UKIP, the AfD, Le Pen and Lega Nord, Youtube and Facebook have not yet been forced to disclose data about activity on their platforms.
Nor does this scratch the allegations about the reported £435,000 donation from Saudi Arabia to the DUP to be used for Brexit. It does not take a Sherlock Holmes to guess a motive for petro-state despots, whose exports are 60% or 83% fossil fuels, to fund causes like the DUP’s or UKIP who deny climate damage. David Cameron saw it coming. If the law is not enforced, the rule of law is in jeopardy. To stop the advance of the far-right in Europe, the UK government should go to Brussels with new mission: a big, new, open offer to unite for full employment on fair wages through democracy in a free society.
Parliament can take back control
Some say Brexit has gone too far. It cannot be stopped. The judiciary has no role. But in our constitution, while the courts do not control Parliament, their first duty is to control the executive. It is said that courts insisting on the rule of law are ‘enemies of the people’, and that British sovereignty is being lost to a tyrannical Europe. But the Rothermeres, the Barclays and the Murdochs say nothing about the tyranny that the UK will face against the bargaining power of corporations who bend the rules of international trade.
Within a few years, after the UK was formed, it was brought to the brink by a government infected with corruption, with the world’s first stock market crash. Vote Leave proponents, who feel their ‘heritable characteristics’ entitle them to wealth and power, may or may not know their history. But in 1720 the government fell, and as evidence of bribes and corruption were revealed the Postmaster General committed suicide, and the Chancellor was imprisoned in the Tower of London for his fraud. 300 years later, the UK’s constitution is stronger. But there are just over 300 days to save the UK from territorial and moral collapse. We have time to deliberate and act: not on whether we want to have a second referendum, but on why the far-right were spilling their beans and counting their eggs. Parliament must deliberate whether we want to redo the first referendum, until technology is made safe for democracy. We must uphold the rule of law. Our integrity is not for sale.
_________
Further reading
- AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2015) ch 7 (on election spending law)
- R Dale, The First Crash: Lessons from the South Sea Bubble (2004) ch 8 (on imprisoning Ministers in 1720)
- E McGaughey, ‘Fascism-lite in America (or the social ideal of Donald Trump)’ (2018) British Journal of American Legal Studies (forthcoming) (on the nature of far-right extremism)
- E McGaughey, ‘Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy’ (2018) Centre for Business Research, University of Cambridge, Working Paper no. 496 (on a full employment plan for Britain and Europe, in the context of changing technology)
Ewan McGaughey (@ewanmcg) is a Lecturer in Private Law at King’s College, London and a Research Associate at the Centre for Business Research, University of Cambridge. He teaches constitutional law, and wrote his PhD on the history of democracy in the economy.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science.
I am sure the Government is aware it was corruption. Otherwise they would be listening to you. What is needed is a Judge to declare the referendum illegal due to corruption of the democratic process. From what I have read the court did find the Leave campaign had illegally overspent, but the judgement was that did not mean the referendum itself was illegal. The problem with courts is they only Judge the matter in hand and not the wider reaching consequences of that illegality.
Personally I am horrified that this can happen. I am 60 and have seen all sorts in my lifetime – political twists and turns and trickery. I voted Remain and was shocked to see the result was Leave.
I have signed the Petition to Revoke Article 50 – now at nearly 6 million signatures – it needs more than 17 million signatures to be taken seriously.
What I would like someone to stand up in Parliament and say is – whether or not the referendum was illegal, it was not valid. Because “the people” did not know what they were voting for – ie the deal should have been presented before the referendum – the facts made plain.
What someone needs to stand up in Parliament and say is – the people would not have voted to Leave if they had known about this deal. We should have a say in whether this is how we want to leave Europe. No doubt a second referendum would be rigged as well.
To be honest I think it was rigged from the outset as the rules should have included a need for a clear majority over a certain percentage.
Anyway – great article – please can you get things changed now? Press the legal position to someone who can declare it illegal because of corruption.
what about the £9million the government spent on remain leaflets does that not count because it was remain
The entire referendum was illegal:
1) Voting was restricted to those least likely to be affected by it. If EU citizens resident in the UK and/or UK citizens which were long-term residents of other countries had been allowed to vote the result would almost certainly have gone the other way.
2) The voting slip was deliberately designed in such a way that ‘leave’ was more prominent than ‘remain’. This would have had an obvious impact on voters who were undecided.
I am not sure what you are a doctor of, but I am guessing it isn’t law. Even if the two points you make are accepted, neither makes the referendum “illegal”. Parliament voted that the referendum be conducted using the electoral register used for Westminster elections. You might not agree with that decision, but it isn’t illegal. General practice around the world is for non-citizens not to have the right to vote in national referendums (as is the case for example in Ireland where UK citizens can vote in parliamentary and local elections, but not in referendums). It could just as easily be argued that the franchise for the Brexit referendum was too wide, including as it did citizens of all Commonwealth countries.
Similarly the ballot paper would have been designed by the Electoral Commission; the body legally empowered to oversee the conducted of elections. If they make a decision you don’t like that doesn’t make it illegal. In any case, I don’t see why anyone would have an issue with the design of the ballot. In fact the remain option was placed closer to the top of the paper, which is usually considered to be an advantage.
” Even though Putin’s Russia has supported UKIP, the AfD, Le Pen and Lega Nord,”
I am sure Russia would never back any right wing parties after what Hitler did to the U.S.S.R.
Youtube have confirmed there was no Russian interference.
Stalin did a deal with Hitler to carve up Poland – and the Baltics! Stalin sent Hitler oil trains to help him win the war against France and British forces in France and Belgium. Britain declared war on Germany to protect Poland, at the end of war, Poland’s sovereignty was destroyed by Stalin – who also murdered the polish army soldiers who bravely fought the Germans.
It’s fine saying it CAN be done. But who’s going to DO it and when? Time’s running out fast.
Why is the system telling me this is a duplicated comment? I’ve just checkef the whole and no-one else has said this.
Exactly what I was thinking. Who will do it!
Nick Rose you are duplicating your own comment.
It’s fine saying it CAN be done. But who’s going to DO it and when? Time’s running out fast.
Surely our duty to our children, grandchildren and beyond. is to do what is best for this country, for Europe and for the world. It cannot be morally right to base such a momentous decision as leaving the EU to the results of a flawed referendum with such a small majority for leave when 63% of the electorate either voted against or did not vote.
I’m a remainder too, but I certainly didn’t vote with future generations in mind. Memberships of things like the EU are not like climate science. I do not care about how my grandkids etc feel about such things. What’s important is now and the immediate future.
That’s so typical when it comes to politics and truth. There are never black or white situations. Stuff is moved around to confuse everyone and all becomes gray:)
I doubt whether any of the arguments presented here are good enough to stop Brexit. Their significance lies elsewhere. They are the beginning of a historical explanation of why the referendum worked out the way it did. Not a total one: the failure of political leadership immediately before (and certainly after) the Referendum will play a part. But the stench of fraud rests over a vote which was very close.
Now if Brexit is a great success, as we are promised it will be, none of this will matter, But if, if, it is the economic disaster than may of us expect it to be, then this is going to be hung round the neck of the Brexit right (and their left-wing and right wing fellow travellers) for a generation and more. If you don’t believe me, talk for Scots about the corruption that was associated with the Act of Union of 1707. Even if they know nothing else about the act, they all know how it was achieved. So this is an important part of what will be taught in schools to my grandchildren, and their children’s children.
“”… this is an important part of what will be taught in schools …” presumably that the overwhelming Vote to Leave the EU was as alleged here ‘fraudulent’. “Really? Brainwashing the kiddies never works so why propose it ?
I am not sure where ‘brainwashing’ comes into it. The way in which the vote was secured was and is suspect. I assume that you what to challenge that statement. Given the doubts today, I am quite certain that it will be taught, in the future, that there was contemporary evidence that the vote was not fairly won.
By “overwhelming vote to leave” I guess you mean the marginal majority, the size of which Farage said should result in a 2nd referendum. That one?
In most democratic countries rules in the national Constitution can only be amended by a 2/3 majority in parliaments. In the UK however only a single vote majority is sufficient to decide on an even more important matter such as brexit. How naive can you be, believing that all the crowds have the wisdom and insight to judge this.
Yes. I have been arguing that a 2/3 majority is, in most democratic, countries required for a constitutional change to take place. Even Hitler realised this when he had to pass his Enabling Act in 1934. Yes, it was passed by nefarious ways, with members of the major oppositin party, the SPD, not being able to enter the Reichstag on the day of the vote. Nevertheless even he knew that the rule of constitutional law had to be seen to be done. On another point, the media – both TV and newspapers didn’t attempt to show the true picture of how the EU had helped the UK – they only concentrated on negatives.I learnt more about Brexit by watchin a whole evening on German TV, which looked at our membership, advantages and disadvantages shown in a clear and interesting way.
Firstly it does not matter what you want in terms of super majorities as Parliament devised and agreed overwhelmingly what the terms of the referendum would be.
Secondly, it was the British Liberal Establishment which expected the ‘Plebiscite on the EU For Remain’, proposed by Cameron, to be endorsed but it was rejected by the British Electorate after decades of practical experience of this supranational incompetent bureaucratic behemoth’s activities.
Thirdly, here is a challenge – Name Just One Advantage that you claim that the German TV programme showed that EU has given the UK?
As the referendum was only advisory, parliament didn’t debate or vote on what the outcome should have been to force the government to act on the result. To have had a binding referendum, this, and all other aspects of the referendum, should have been agreed before any votes were cast. Herein lays the real and very serious issue with the result.
And before anyone suggests Cameron declared it binding, he didn’t. He said categorically, that he would ensure that the result was enacted, not government, not Parliament but him, David bloody Cameron. Where is he now to fulfil his promises?
Brexit has too many flaws both legally and constitutionally that it should either be declared void or a second referendum, based on truth and without interference, should be offered to the electorate. This should include all UK citizens with a right to vote and not exclude anyone that may skew the result based on their personal circumstances.
Q for Sue Collins: What was the name of the German TV programme & on which channel? I would like to watch it myself. Beste Gruesse, Vicky
Really sorry – I can’t remember the details of which programmes were on German TV about the Referendum. It is so long ago now. It was probably in about February and on either Erste, ZDF or RTL the 3 main German TV channels.
Can you please write a follow up that explores the relationship between the activities of Cambridge Analytica with the implementation of the Investigatory Powers Act.
To what extent does our parliament represent us? If the legality of the Article 50 instruction comes down to the vote in parliament then we have to ask that question. A heavily whipped vote, combined with an ineffective and divided opposition, and the common knowledge that the conservative majority in the commons was enabled by only 36% of the electorate means surely that the article 50 vote was unsafe as well as the referendum.
The referendum informed the decision to trigger Article 50, but it was the Parliamentary vote based on it that formally did the deed with the European Union (Notification of Withdrawal) Act 2017.
Sympathetic as I am to the writer, it has to be accepted that the UK’s actions do satisfy the need to arrive at the decision by the UK’s constitutional requirements. Ironically, if Gina Miller hadn’t intervened, the UK’s government’s fatal error would have stood and, the fraud exposed, the EU would not have accepted that the UK had legitimately served Article 50.
(By the way, in the spirit of enquiry prompted in these days of the attacks on personal data, I’d like to know about a hidden element on this comments form called ‘bb2_screener’. So what’s that collecting about commentators, then? The function of the other hidden elements I got, but not that one.)
Exactly, and furthermore, the referendum wasn’t legally binding so the validity of it is neither here nor there. Parliament, as May found out the hard way, is the Crown, it resolved to sign Article 50 and we are leaving the EU. That is why Labour stands where it does and Kier Starmer’s 6 tests are the best possible outcome.
I’m afraid the reasoning is this blog post is fundamentally flawed.
First, if there has been breach of the referendum spending rules, this cannot void the result. The EU Referendum Act 2015 made provision for challenge to the result to take place within six weeks of the referendum and on limited grounds only. The spending rules are contained in the Political Parties, Elections and Referendums Act 2000, which provides for criminal sanctions, but does NOT provide that breach constitutes a ground for invalidating the referendum result. This position is the same as for breach of national spending rules at a general election.
Second, even if the referendum result could be voided, this would not nullify the Article 50 notification. The referendum result was advisory only. It did not specify any legal consequences; it therefore follows that nullification of the referendum result would also have no legal consequences. The Supreme Court in Miller was clear that the referendum by itself provided no legal justification for triggering Article 50; an Act of Parliament was required, which was duly passed – the EU (Notification of Withdrawal) Act 2017. It is this statute, rather than the referendum, which, as a matter of law, authorised the Article 50 notification, and its legal validity is in no way dependent upon the validity of the referendum. Indeed, on an orthodox understanding of the doctrine of Parliamentary sovereignty, no court can question the validity of an Act of Parliament.
Consequently, the legal relevance of any putative breach of the referendum rules is limited to any potential criminal liability that there may be for those responsible. Otherwise, the relevance is purely political. It may be regarded as adding weight to the case for seeking to cancel the Article 50 notification or for holding a second referendum, but such a case has to be made politically, and there are significant practical (and legal) barriers to do either of these things given that the Article 50 notification has been made, the two year withdrawal period is already running, and it is unclear whether, as a matter of law, the notification can be withdrawn.
Aileen Haig – an excellent cogent and forensic piece on the utter irellevance of this papaer in practical terms.
However you say “… the Article 50 notification has been made, the two year withdrawal period is already running, and it is unclear whether, as a matter of law, the notification can be withdrawn.”
I thought the UKSC judgement’s argument in Miller v SoSExEU was precisely that Art 50 was ‘not irrevocable’ and that was why its Notification ought to be an Act of Parliamant and not a simple Executive Order.
In Miller, all sides agreed for the sake of argument that the Article 50 notification once given could not be revoked. The Supreme Court proceeded on that basis, but explicitly did not decide the point. Indeed, as a matter of EU law, it can only be authoritatively decided by the European Court of Justice. There is a case which will soon be heard in the Court of Session (in Edinburgh) in which the petitioners are seeking a reference to the ECJ on this issue.
All the above is well and good but what about the next move. There have been provable acts of fraud, general corruption and criminal behavior – who can move to prosecute? Talking amongst ourselves is fine and there is a general agreement around the voiding of the vote and withdrawind from Brexit so is there a way to get justice for our country?
Justice in our country is best served by following the clearly expressed wish of the majority to Leave the EU.
There were none – the Cambridge Analtyca group made a ‘proposal for services’ which Leave EU did not accept; en dof story.
“To stop the advance of the far-right in Europe, the UK government should go to Brussels with new mission: a big, new, open offer to unite for full employment on fair wages through democracy in a free society.”
The advance of the Far-Right at the recent German federal elections has little to do with the employment situation in the country – the economy is booming, unemployment is low, budget in surplus. Instead it has much to do with Merkel’s liberal immigration policy.
Shouldn’t one also worry about the Far-Left in Europe (including the UK) as well as the Far-Right?
The courts do indeed control the executive tjhrough judicial review, but the problem the auhtor has in relation to Article 50 is that it was triggered by Parliament… at the suit of one Ms. Gina Miller. Parliament cannot be overruled by the courts – except the European Court of Justice by virtue of the supremacy of EU law, which will be ended once the Great Repeal Bill becomes law (which could be delayed if the House foLords rejects it).
“To stop the advance of the far-right in Europe, the UK government should go to Brussels with new mission: a big, new, open offer to unite for full employment on fair wages through democracy in a free society.”
hmm…other EU heads of states have different ideas. President Macron (a former socialist) currently is busy fighting the militant trade unions and passing laws to make it easier for companies to hire and fire workers, and lifting cap on working hours, as part of his programme to promote full employment in a country that had for over a decade suffered from chronic unemployment.
Why not have a crowdfunding site to get enough money to have a judicial review of the legality of the Referendum?
This has been attempted by at least three routes to my knowledge and the Court gave the petitioners ‘short shrift’, without reading the judgements I guess because they were attemting to over turn an Act of Parliament.
Speaking even as a remainer, I don’t think the referendum is a bell that can be unrung. It’s not as if we can empty everyone’s mind to start with a clean slate on which people write in accordance with the rules. Those persuaded by the excess expenditure probably remain persuaded that Brexit was the way to go. Nor are those people likely to buy into the idea that their votes were bought by that excess expenditure, so declaring the referendum null and void would create havoc with the 52%.
Two things are needed. The first is for anyone suspected of fraud in this instance to face criminal charges that lead to serious punishment if they are found guilty. If that’s not already possible, it should be made possible for any future instances of such misbehaviour. That will at least serve as a deterrent.
The second is for some serious real-time policing and oversight mechanisms to uphold the law so such fraud is caught as it happens, not 20-and-odd months after the event.
The result of our not having had such mechanisms in place when the referendum was held, however, means we’re landed with the result. This is the sort of criminal act that needs to be prevented. It’s not one that can be corrected afterwards, only punished. Like I said, the referendum was a bell that can’t feasibly be unrung.
The ‘excess expenditure’ was by Cameron on £9m for a blatant pro-EU leaflet sent to every househol in the country. Such a ‘mechanism’ as you suggest ought to have stopped that and all the other covert super additional promotion of ‘how wonderful the EU is’ by various other non-official groups also. The Electoral Commission is responsible for reporting to the Police such alleged criminal acts – but I suspect what you mean is that to Vote Leave is Aa criminal act.
I certainly agree there was questionable activity on both sides. When it comes to legality, however, rightly or wrongly, (the latter in my view), Cameron didn’t break the law.
This article does raise some interesting points. For example, exactly how the provisions in the 1983 Representation of the People Act relating to broadcasting from outside the UK apply in the era of modern communication would be an interesting discussion.
But ultimately what we have here is an anti-Brexit polemic given a veil of credibility by the author’s legal expertise. Sentences such as “…there are just over 300 days to save the UK from territorial and moral collapse” are not indicative of a dispassionate analysis.
There are two things missing from this piece. Firstly, any genuine attempt to assess the effectiveness targeted campaigning material delivered via social media. This cannot simply be assumed, and I do think that recent coverage has been guilty of taking the claims of effectiveness made (for obvious reasons) by the companies that offer such services too much at face value.
Secondly, and more importantly, there is no consideration of the political consequences of declaring the Brexit referendum void. Whatever the formal legal position, such a move would be seen by a significant section of the U.K electorate as being the political and legal establishment vetoing the outcome of a democratic vote. The consequences of so many people coming to the conclusion that their vote is effectively worthless are incalculable. If the author wants to see a Farage or Trump type character (or worse) holding the balance of power in the House of Commons then embarking on the course of action he advocates would be the very best way of making that happen.