Vote Leave Campaign: Electoral Law

Daniel Zeichner 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.

[Tom Brake (Carshalton and Wallington) (LD)]

Does the hon. Gentleman agree that it is essential that we have clarity on where the law stands, particularly in relation to whether article 50 can be rescinded? I am not sure whether he is aware of a legal case—the Wightman case—that is going through the Scottish courts, which I am peripherally involved with. It seeks to get a case to the Court of Justice of the European Union for it to rule, once and for all, on whether article 50 can be rescinded, because we need that clarity in respect of other decisions that we have to make in this place.

[Daniel Zeichner]

I thank the right hon. Gentleman for his intervention and I very much agree; in fact, I will come on to that point a bit later. It is a very important point and, of course, it would have been helpful for all of us if the Government had pursued that option to make things clearer, so that we could all have made a sensible decision. However, another theme of my speech is the lack of clarity throughout the discussion of this subject, and I suspect that that will not change in the immediate future.

I do not intend to rehearse the arguments about the abuses that are alleged to have happened during the referendum campaign—in fact, in some cases abuses have been proven to have happened during the referendum campaign—but others may wish to do that. I will just note a couple of things from the excellent work by the Digital, Culture, Media and Sport Committee to uncover the extent of the wrongdoing committed by the Vote Leave campaign, which of course is the subject of the petition we are considering.

I cannot help but quote one reflection from the DCMS Committee’s report in relation to one of the key players:

“Mr Cummings’ contemptuous behaviour is unprecedented in the history of this Committee’s inquiries and underlines concerns about the difficulties of enforcing co-operation with Parliamentary scrutiny in the modern age.”

Beyond highlighting the lack of respect shown for the rules and procedures of this Parliament by Vote Leave, the Electoral Commission’s legal counsel stated that:

“Vote Leave has resisted our investigation from the start, including contesting our right as the statutory regulator to open the investigation. It has refused to cooperate, refused our requests to put forward a representative for interview, and forced us to use our legal powers to compel it to provide evidence.”

[Catherine West (Hornsey and Wood Green) (Lab)]

I congratulate my hon. Friend on his excellent opening speech. On the point about people attending Committees, does he agree that the social media element has an impact on the close scrutiny that we need, not just of ourselves as Members of Parliament, but of elections in general? Because it is so new, it adds confusion and layers of fake news, making it even more difficult for the average citizen or voter to get to the bottom of what the truth is.

[Daniel Zeichner]

I am grateful for my hon. Friend’s observation. I do not think anyone would dispute the layers of complexity and difficulty, and the greater difficulty presented by social media. For some of us who have been grappling with electoral law over many years, social media makes it a whole lot more difficult, and I suspect we all know that we will need to update our procedures to try to cope with the challenges that are posed.

[Darren Jones (Bristol North West) (Lab)]

For many of my constituents, this feels like an obvious point. There has been a breach of the law and there should be a way in which those who are responsible are held to account through our legal system. The fact that a general, local or European election or a local referendum would, in such a case, be voided in the High Court but that this referendum has not been seems nonsensical. I agree with the point my hon. Friend just made: that the rules, therefore, clearly need updating. Would my hon. Friend support me and others in calling for an inquiry, not just to understand the problems in the referendum, but to fix the rules for the future?

[Daniel Zeichner]

My hon. Friend jumps ahead a little, but entirely correctly, to my conclusions. Over the next few minutes, I will show some of the inconsistencies and the need to update our rules and laws, and I very much hope that the Minister will listen closely.

Returning to the Digital, Culture, Media and Sport Committee’s conclusion, that was an extraordinarily strong statement, which frankly should make anyone in any way associated with the Vote Leave campaign at least wince—they should, more properly, be deeply ashamed. I cannot help noting that the alleged point of the entire campaign was to bring control back to this Parliament—a Parliament it now treats with contempt and disdain. The sheer hypocrisy, as well as the appalling boorishness, that the campaign has exhibited takes the breath away. How dare it wave the Union Jack when it so disrespects basic British values? Millions and millions of people who voted to leave will also have been horrified by its behaviour. My hon. Friend the Member for Streatham (Chuka Umunna) put it succinctly when asking an urgent question on this matter in July:

“Who do these people think they are? They think they are above the law.”—[Official Report, 17 July 2018; Vol. 645, c. 227.]

Although this particular instance is controversial and unpleasant, and stinks of arrogance and an obnoxious disregard for our politics and our Parliament, over an issue that is extremely emotive for many of us, as well as highly significant for the country, it is important to remember that this is not the only occasion on which our politics has fallen short.

I have just made a pretty strong attack, so I will try to lighten the mood for a moment. In the interest of painting an accurate picture, I fully acknowledge that claims that ballots have been rigged or that electorates have been misled are hardly new or unusual. It was not just the notorious £350,000 claim on the side of the bus. [Interruption.] Million—sorry, not thousand. I have lost count of the number of constituencies I have arrived in and by-elections I have turned up to, where I have been puzzled and amused by the information being offered to the electorate by one side or another. Let me get my mea culpa in first. My party has made some interesting claims. I remember “Vote Labour or the fox gets it” dominating one parliamentary by-election. I remember Labour claiming that the Lib Dems were high on taxes and soft on drugs—that was one of my particular favourites, which I think was from Oldham and Saddleworth. In another by-election, possibly in Leicester, I remember being told that the contest was Mr Strong versus Mr Weak—neither of which candidates appeared on the ballot paper, as I recall. In general elections, the Conservatives have used the notorious double tax whammy and they have asked us, “Are you thinking what we’re thinking?”. Of course, whenever the Liberal Democrats are involved, it is always a two-horse race, whatever the facts might say.

Whether witty, making a reasonable point in a clever way or downright misleading, none of those statements actually broke the law, but Vote Leave did and it has been punished according to the law as it stands. However, the campaign also seriously misled the public. I and many others feel furious about the false promises that were made, but I reluctantly concede that this motley collection of attempts to at best divert and at worst mislead the electorate is, frankly, what electoral politics has always been: an unlovely struggle to achieve sometimes noble ends through too often distinctly tawdry means.

Sometimes, however, cheating does lead to a rerun. In Oldham East and Saddleworth, a by-election was triggered in November 2010 after the sitting MP, elected just months before, was reported guilty of “knowingly making false statements” about an opponent in the general election earlier in the year. After various court proceedings and an appeal, he was reaffirmed as guilty and conceded defeat. I was very sorry, because he was a Labour colleague. Interestingly, the electorate chose not to punish Labour at the ensuing by-election. There are more recent examples. In South Thanet, accusations of electoral fraud have been made that could have declared the election result in 2015 void due to overspending. The trial has been delayed. It is expected to happen in October and I therefore do not think it would be appropriate to say anything more about it.

Those who have signed the petition under consideration today may well ask: why are parliamentary election reports of wrongdoing treated so differently and so much more robustly than those relating to referendums? The answer, as I have hinted, is that electoral law is complicated, with different overlapping pieces of legislation that make it difficult to understand, even for those of us who have been struggling to work out what it means for many years. The important point here is that electoral law is different for national referendums.

In the case of a parliamentary election, there can be a challenge for one of three reasons: if there have been administrative failings that could have led to the wrong result; if a candidate is suspected of being disqualified from standing; or if there have been corrupt or illegal practices, including a candidate spending over the limit. Although there are financial limits on national spending by political parties and third-party campaigners during an election, there is no similar provision for declaring a general election result void because of overspending on the national scale. That makes the rules for referendums and parliamentary elections both complex and varied.

[Sandy Martin (Ipswich) (Lab)]

Does my hon. Friend agree that whether or not we have another referendum on our membership of the European Union, the probable involvement of the Russians indicates that democracy in this country is at risk and that, whatever action we take in this House, we should try to ensure that it is motivated by our desire to defend democracy as well as the rule of law?

[Daniel Zeichner]

I very much agree with my hon. Friend and near neighbour. There are so many aspects of the matter that could be explored today, some of which I suspect others will choose to pursue.

Returning to the general proposition about how these issues should be dealt with, some look to the Venice Commission for guidance. The commission’s guidelines on constitutional referendums, to which the UK is a signatory, include:

“National rules on both public and private funding of political parties and election campaigns must be applicable to referendum campaigns... As in the case of elections, funding must be transparent, particularly when it comes to campaign accounts. In the event of a failure to abide by the statutory requirements, for instance if the cap on spending is exceeded by a significant margin, the vote must be annulled”.

However, as colleagues may agree, some of that, too, is open to interpretation. It does not give precise advice, and the key point, I am afraid, is that it is not legally binding on its signatories, although we have signed up to the spirit of it and it really ought to guide us in that way.

If one clear conclusion and recommendation comes out of this debate, it should be that the current rules are inconsistent, and certainly not clear to the general public. The law on referendums should be strengthened and made consistent, and I very much hope that the Minister addresses that in his contribution.

There is a further issue that goes beyond the strict application of the law. We do not have a written constitution. We do not have a contract between citizens—or subjects, but that is a debate for another day; let us call them electors—and those entrusted to make law and to govern. We have a very British understanding, and arguably it has probably served us pretty well. If a party is elected on a manifesto that it then contradicts in government by U-turning on key flagship policies, for instance, it can be reduced by the electorate from a party of government to one struggling to make up double figures in its number of MPs, as we have seen in recent times.

It is widely understood that we all respect the outcomes of elections, however disappointed we might be by the result. I speak from some experience, having lost many more elections than I have won. That respect, however, requires that everyone plays broadly by the rules. Despite the examples I somewhat grudgingly gave earlier, most of us accept that most of the time our system works. I am being generous, as many of us, particularly on my side of political spectrum, feel that the levels of hostility from national newspapers owned by people with vested interests have over many years made any contest far from fair, but I persist in thinking that the removal van outside Downing Street remains a powerful symbol of a democracy that still maintains public trust and consent. However—this goes to the heart of the issue raised by the petition—if that trust begins to be put in doubt, and significant numbers no longer feel the system is operating sufficiently fairly, then our democracy is at risk. What we do about that is a political judgment, not a legal judgment.

[Tom Brake]

I thank the hon. Gentleman for giving way, and I apologise for the fact that I and possibly other Members will not be able to stay until the end of this debate; there is another debate about the European Union withdrawal agreement taking place in the Chamber shortly. Does he think it might be helpful to have an independent arbiter to assess the statements made during election campaigns? Politicians of all parties could voluntarily sign up to an understanding that if the UK Statistics Authority, for instance, came down against a particular statement—for example, the £350 million for the NHS—and said that it was untrue, those politicians would never restate that position.

[Daniel Zeichner]

I thank the right hon. Gentleman for making those points. I quite understand that there is another, more attractive option coming up soon in the other Chamber, and I will be in no way offended if he leaves. On his point about whether there can be an independent arbiter, I am slightly dubious. We are all sufficiently experienced, even in local contests, to know that that would be a difficult thing to set up. I would worry about it. We have all seen examples where all candidates are given an equal space in a booklet, and we have perhaps noted that that is not necessarily the bit that cuts through to the electorate in comparison with reporting from other sources. It is a difficult area, and I have some scepticism about his proposals, although there may be some value in exploring the checking of statistics.

[Catherine West]

My hon. Friend is generous in giving way to me for a second time. Does he agree that if there is a referendum and the Government of the day say that they will implement whatever the people decide, there should at least be a briefing in the Library of the House of Commons the day after the referendum goes one way or the other so that those of us who are rather surprised by the result know what the Government intend to do?

[Daniel Zeichner]

I thank my hon. Friend for her suggestion. I am just remembering some bleary-eyed politicians trying to recalibrate in the middle of the night, and I am wondering how quickly such a briefing note could be produced accurately. This is a theme of what I have been saying, but I am not sure that one can design legal systems to cope with all these things. In the end, these are political judgments, and we live in a democracy with a fair amount of hurly-burly and a free press, as there should be. We do not want our elections and decisions being bought by money and external states. That is the worry, and that is the difference from some of the problems we have had in the past.

I will make some progress and move on to the separate but related question of article 50 and the ongoing debate as to whether it is rescindable. Lord Kerr was responsible for drafting article 50 as secretary-general to the European Convention in 2002-03 and is frequently quoted on this issue. Last year, he said that article 50 was revocable. That interpretation is supported by Jean-Claude Piris, former legal counsel to the European Council. Marie Demetriou QC, Jessica Simor QC and Tim Ward QC have written a joint legal opinion, which they have sent to the Prime Minister, in which they conclude that article 50 can be withdrawn before 29 March 2019 without the need to seek the agreement of the other EU member states. They also say that if that happened, the UK would retain its membership and privileges. The joint legal opinion notes that the wording in article 50 refers to a decision to notify an intention to withdraw. The QCs argue that an intention is not a binding commitment; it can be changed or withdrawn.

While legal arguments continue on the matter, in political terms the French Government have stated that they would welcome the UK staying in the EU on the current terms. EU Commission President Jean-Claude Juncker and Council President Donald Tusk have both said that Brexit is reversible. Lots of people have said lots of things over a period of time. When it comes down to it, I suspect that it is the political will of law- makers that counts here. However, it has been made very clear to us that we are welcome to stay, should we wish.

I have tried to present the petition in an even-handed and fair way, even though everyone already knows where I am going with my speech. In many people’s view, June 2016 was not a great example of a mature democracy working at its best. We know that in our system, referendums are used mainly by Prime Ministers who are in a fix, trapped by divisions within their own party. That was most certainly the case in 2016. Although I have not an ounce of sympathy for David Cameron, he must wonder every day how it came to this. In 2016, the country was hideously divided on the issue, but a decision was made. Two and a half years on, it looks as though we face another difficult decision: to accept whatever deal can finally be arrived at, or not. That is a different question from the one that was posed in 2016. I have argued this afternoon that the law around referendums should be changed to make them consistent with other electoral processes.

Almost 200,000 petitioners and many, many more in the country feel very strongly that the 2016 decision, close as it was, was sullied by actions that have been proven by the Electoral Commission to be unlawful. It may be Parliament’s responsibility or fault that the law is inconsistent, but many of the people we represent feel that the law has not provided adequate recompense for wrongdoings, and that is the force of the petition. That the law was broken is not in doubt, but alongside that, many believe that the campaign was grossly misleading. What was offered by Vote Leave and other leave campaigns is not what is being delivered, and as with parties that renege on their manifestos, the country will not forgive the political system and the politicians who allow this to happen.

The two strands—breaking spending limits and misleading people—are separate issues, but for many people the two are inextricably linked. Indeed, the right hon. Member for Mid Sussex (Sir Nicholas Soames), who is the grandson of Winston Churchill, told the House in the urgent question on this matter in July that

“one of the great glories of this sadly now diminished country was our electoral and democratic system…I say…that if we are to retain the integrity and the trust of the voting public, the whole damn thing needs to be blown and started all over again.”—[Official Report, 17 July 2018; Vol. 645, c. 228-229.]

The point is very well made. To maintain trust in our democracy, a political response is needed, and that political response is to ensure that justice is done and that we have a people’s vote.

The petition mentions article 10.3 of the Lisbon treaty, which states:

“Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”

I do not want to leave the EU; I have been explicit on that point. I truly believe that the economic, social and political damage that leaving would do to our country—hitting the most vulnerable the hardest—could be mitigated by remaining in and reforming the EU. Tackling the underlying causes here at home is the way to truly bring back control to the people, not to the bankrollers of election campaigns, but while having the conversation about our future relationship with the European Union, it is worth reflecting again on article 10.3. It states:

“Decisions shall be taken as openly and as closely as possible to the citizen.”

That was not what happened in the EU referendum campaign, where electoral rules were broken, a limited franchise excluded those who would be most affected and the question allowed people to vote on what they did not want, but then said nothing about the kind of relationship that should be put in place. As many have said, as we slam the door shouting “We’re leaving”, we are unable to answer the obvious retort, “So where do you think you’re going to?”.

To help our fractured society to move back towards the higher ideals of genuine informed participation in democratic life, it is right to consider the experiences of the past two and a half years since the country went to the polls, as well as the poll itself, and to look at what was promised then and what is being delivered now. It is right to wonder whether we can do better. People have the right to know the price tag before they pay the bill. I am absolutely convinced we can do better. We all know so much more now than we did back in 2016. My solution to the conundrum raised by the 200,000 petitioners is simple. We have an opportunity not to revisit 2016—not to have a rerun, despite the wrongdoing—but to have a new vote on the issue that lies before us. It would be a people’s vote, which would give the people a genuine choice to decide on their future: whether to take the deal, whatever is negotiated, or to reject it and so stay in the European Union.

--- Later in debate ---

[Daniel Zeichner]

On behalf of the Petitions Committee, I thank all Members who made contributions today. It has been a civilised debate.

The Minister reflected that the turnout in the Chamber was a decent one, but I have to say that I expected rather more Members—in fact, I expected a rank of Vote Leave supporters on the Government Benches to explain and defend their actions. I quite understand why they are not present: their actions were indefensible. What a pity that they are not here to defend themselves. I suspect that many of the petitioners will be profoundly disappointed—not by the number who are here, but by the number who are not, in particular on the Vote Leave side.

The Minister cannot, however, be held responsible for everything that happens in life. I shall reflect on some points in his response. I was mildly encouraged that the Government plan to look at the role of data and at strengthening the laws around referendums. Major lessons can be learned from all that went on. I was slightly disappointed that he did not take the opportunity to endorse the suggestion made by my hon. Friend the Member for Bristol North West (Darren Jones) of a judge-led inquiry into what went on, which might help us, but perhaps that is for another day.

In conclusion, the Government again made a strong statement that the issue will not be revisited, but I reflect gently on the strong statements made by the Prime Minister in the early months of 2017 that there was no chance of a general election. Perhaps she should again go for a walking holiday in Wales and return to give the country what it needs to get us off the hook of the crisis by delivering a people’s vote.

Question put and agreed to.

Resolved,

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