Vote Leave Campaign: Electoral Law

Debate between Tom Brake and Daniel Zeichner

Monday 10th September 2018 Westminster Hall

[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it is essential that we have clarity on where the law stands, particularly in relation to whether article 50 can be rescinded?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get a case to the Court of Justice of the European Union for it to rule, once and for all, on whether article 50 can be rescinded, because we need that clarity in respect of other decisions that we have to make in this place.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.”

--- Later in debate ---

[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.