Vote Leave Campaign: Electoral Law

Bim Afolami Excerpts

Monday 10th September 2018 Westminster Hall

[Daniel Zeichner (Cambridge) (Lab)]

I beg to move,

That this House has considered e-petition 223729 relating to rescinding Article 50 if the Vote Leave campaign broke electoral laws.

It is a pleasure to serve under your chairmanship, Sir Roger.

The petition raises an issue that is clearly timely, lively and of huge interest, because almost 200,000 people have signed it in less than three months, including more than 1,000 people from my constituency of Cambridge. I thought it likely that many hon. Members would wish to contribute to a debate on this issue. I thought that some might have spoken on the subject of the petition, some on related subjects and some to confirm pre-existing positions—I confess that I am no exception in that regard. I also suspect that a few people will wish to intervene and, as Mr Speaker would probably put it, “beetle away”. I entirely understand and I will be generous in taking interventions. However, to avoid my being knocked off course completely, I thought that I would first set out the ground I intend to cover and then hon. Members can judge for themselves where best to make their interventions.

May I say at the outset that the wording of the petition is admirably succinct and to the point, perhaps unlike some of our proceedings? It says what I suspect many people would assume is obvious. To paraphrase, it roughly says, “If someone cheats, then the result is invalid and it doesn’t count.” Because I did not like the result of the EU referendum, I obviously agree entirely, but unfortunately for me and for all those who feel the same, things are sadly a bit more complicated than that. It is those issues that I wish to explore initially. In passing, I will suggest that—sadly—cheating in elections or allegations of such are not new or rare. I will examine the mechanisms that we have to explore such charges, and the sanctions and punishments that may be incurred, and I will consider whether they are consistent across different types of elections and votes.

I will say a little about the particular circumstances surrounding the 2016 referendum campaign. I will then address the issue of article 50, and the views about the options that are potentially open to us. In passing, I will reflect on the complicated issues of consent within a democracy and the extent to which some of these judgments are legal issues, while some ultimately may be political issues.

I will conclude in a completely non-partisan way by saying, “Of course we were cheated, the whole thing has been a nonsense and we should stay in the European Union,” which I suspect is what the vast majority of those who signed the petition actually feel. I recognise, however, that there may be others in Westminster Hall today who feel differently. On a more serious note, I will try to offer a potential way forward to address what has undeniably been a distinctly fraught couple of years for our politics.

Let me start, however, at the beginning. Last week, I had the pleasure of joining the Lord Mayor of the City of London at an event in Cambridge. I was struck by his opening comments. He said that he is guided by three principles: the first principle is the rule of law; the second principle is the rule of law; and the third principle is the rule of law. Given that he was addressing a group of lawyers, that seemed like quite a smart opening. However, it strikes me that what the Lord Mayor said—that he is guided by the rule of law—is something that all of us in this place can probably agree on. We are here as lawmakers, and we respect the law even if we disagree with some of it and seek to change it.

The opening part of the petition, which queries whether any laws have been broken, should be relatively simple to consider. We have a mechanism that was established by Parliament to supervise electoral contests. The Electoral Commission has conducted an extensive investigation into the referendum and it has concluded that laws were indeed broken. Vote Leave funnelled nearly £700,000 to another campaign group, BeLeave, and did not declare that the two campaign groups were working together.

The precise details of what happened remain contested; others may wish to talk about that. I recognise that Vote Leave argues that the investigations have been politically motivated. However, the investigation has been made and the conclusions are very clear—indeed, they are stark. Vote Leave was referred to the police and those found guilty have been fined, which is the punishment available to the Electoral Commission under the law.

The Electoral Commission has commented that that punishment is, in its view, insufficient. I agree, as I suspect do the 200,000 petitioners; that is the force of the petition. However, that is the law as it stands at the moment, which makes the jump in the first sentence of the petition quite a leap: from if the law has been broken to nullifying the result. That may be what many of us would like the law to be, but I am afraid that it is not the way it is in this case—or is it? A recurring theme in this debate is that no-one is entirely sure.

There will be lawyers in this Chamber who will know far more than me, but one aspect of the legal debate begins with the status of the referendum itself. In the Supreme Court judgment made in December 2016, when the Government were being challenged on the need for parliamentary approval to trigger article 50, it was judged that the EU referendum was not legally binding but advisory, so logically it cannot be ordered to be rerun by a court. The decision about whether to go back to the public after a referendum is not a legal judgement; it is a political one. The decision lies with us.

[Bim Afolami (Hitchin and Harpenden) (Con)]

I am grateful to the hon. Gentleman for introducing this very important debate. I speak as somebody whose constituency voted to remain; I myself also voted to remain. Can he address one point? He has mentioned, rightly, that in legal terms, the referendum was advisory and not legally binding. Therefore, the nexus between the triggering of article 50 and the referendum is weaker than if the referendum had been legally binding. Does that not weaken the case for the referendum result to be overturned or for article 50 to be rescinded, because Parliament is making an even more independent judgment than would otherwise have been the case?

[Daniel Zeichner]

I am grateful to the hon. Gentleman for his intervention. As I rather thought, almost immediately we start getting pulled into the legal arguments. His point is a reasonable one, but of course there are arguments back and forth, and many of these things remain to be tested in court, as is so often the case. However, he might make that case.

The point that I am making, and this is a theme that I will return to throughout my speech, is that the law is for the lawyers, but a lot of these judgments will ultimately be political judgments, which need to be made in this place. We can make a choice, on the basis of what we have seen in the referendum, as to whether or not we think the referendum should be run again—it is up to us to do so.