Vote Leave committed the biggest electoral offence since the 19th century in a campaign chaired by a Cabinet minister. The referendum result won through illegality propelled the Prime Minister through the door of No 10. These facts are well known but seem to be regarded with all the gravity of a parking offence.
This illegality if committed in a Parliamentary election would have unseated an MP. An MP represents about 70,000 people and sits for five years. The referendum result affects 66 million people for generations .
The referendum was advisory and the legal safeguards which cover parliamentary and council elections do not apply. Whereas an electoral offence of the kind described above would void such elections and they would have to be rerun, in the case of an advisory referendum such protection does not apply. There is an implicit assumption within the principles of good public administration that a full and balanced assessment would be made in considering the results of an advisory referendum before enacting legislation.
Rationally in a case of such as this that would include not only the form, nature and effectiveness of the legislation contemplated but the validity of the result itself. Clearly contemplating legislation affecting the future course of the nation requires confidence that the path being taken will command the support of the people. This was a point made by Jacob Rees Mogg amongst others in debate prior to the referendum act being passed.
Instead we have a government which has closed its mind to the significance of Vote Leave’s electoral offences. Astonishingly it has been argued, on behalf of the government, that the Prime Minister is perfectly well aware of the lawbreaking and the fact that there are ongoing investigations into alleged criminal offences under way by the National Crime Agency, the Metropolitan Police Service and the Information Commissioner which have yet to reach a conclusion. Nonetheless as the offences took place in an advisory referendum and the usual electoral safeguards which would require a rerun do not apply the offences in question are not relevant and the Prime Minister has decided to carry on regardless.
The statement made on the Prime Minister’s behalf is breathtaking in at least three respects.
Firstly it seems disproportionate and perverse while the law would unseat an MP following an illegally procured result affecting 70,000 for 5 years that no such safeguard should be exercised where the result of a referendum affecting 66 million for generations is clearly tainted. Proceeding as if nothing untoward had happened is not compatible with maintaining trust in democracy. If people upon casting their votes cannot be confident that a fair result will follow democracy itself is undermined. This is all the more important when a course of action is being contemplated which will affect the entire nation for generations.
Secondly while I have focused on Vote Leave’s electoral offence as acknowledged by James Eadie above the illegality and alleged interference in the referendum goes far wider. So while Vote Leave’s offence would be enough to require a rerun if it had taken place in a Parliamentary election in fact the range of actions which may have affected the referendum result goes well beyond Vote Leave.
Thirdly and momentously our democracy is at risk. From the work undertaken by the Digital Culture Media and Sport Select Committee, by the Canadian Parliament and in the United States it is evident that our legislation and practices have not kept pace with the way in which electoral campaigns are now conducted particularly with regard to the part played by social media and the way in which spending is regulated. The fact that Aaron Banks is unable to explain adequately the source of the £8m he spent on Brexit means the question of whether foreign money influenced the referendum result cannot be set aside. Equally there is a pressing need to understand better what safeguards should be introduced to minimise the potential malign influence of state actors seeking to influence our domestic politics in order to secure outcomes favourable to their strategic interests rather than the U.K.’s.
Looking at these three factors together it is both shocking and unsatisfactory that the Prime Minister is not only ploughing on with Brexit regardless of the tainted referendum result which would have necessitated a rerun of any election but has also failed to put in hand the serious and urgent action required to safeguard our democracy and maintain public trust. Instead she puts her energy into carrying on with Brexit on the spurious grounds that to do otherwise would undermine public trust. In fact it is her failure to take seriously the illegality and interference which took place in the referendum which is undermining public trust and I would argue creating a crisis in politics.
So how is it that Leave can break the law corruptly winning the referendum and get away with it apart from receiving the largest fine the Electoral Commission can administer being the focus of continuing investigation?
It is disappointing but entirely unsurprising that the Prime Minister is determined to do nothing which questions her own legitimacy. It is a truth which must be uncomfortable for her that she would not be in No 10 now if Leave through its lawbreaking had not won the referendum. Indeed without pushing the alternative branch of history thinking too far it is safe to say she would now be languishing on the backbenches having been forced to resign as Home Secretary as as a result of her handling of the Windrush Scandal. So she has set her face on Brexit Means Brexit and against any action which might call into question whether it is she or David Cameron who should now be sitting in No 10 given a fairly conducted referendum.
However the Prime Minister would simply not being able to get away with ignoring the illegality and interference in the referendum, thus doing nothing actively to safeguard our democracy, if it had not been for two other critical factors.
The first of these is the role played by the official opposition. Imagine a scenario where the Prime Minister is harangued on a daily basis by the leader of the opposition as an impostor – a prime minister with no right to be in the office she holds because she gained it through a referendum result procured illegally. The case can easily be substantiated. It does not need to extend to all that we suspect about foreign money and the manipulation of our democracy by malign state actors. These are serious concerns and must be fully investigated. However at this stage it is too easy for them to be dismissed out of hand as conspiracy theories. Of course the definitive proof that they are not cannot be provided until the conclusion of the investigations currently underway. Therefore the attack on Mrs May’s legitimacy as Prime Minister should be based on the proven illegality committed by Vote Leave and Leave.eu and the consequences that would flow from it in any election i.e. a rerun. These are incontrovertible facts. Furthermore it is clearly irrational and perverse that if an MP representing 70,000 people for five years would be unseated, it cannot be right that an advisory referendum affecting 66 million people for generations must be regarded as binding when legally it isn’t.
Of course the opposition has taken an entirely different tack and for this Mrs May must be profoundly grateful.
As important is the role of the BBC. The BBC is the largest news organisation in the UK employing over 2000 journalists. It has enjoyed an international reputation as a public service broadcaster which embodies the best traditions of objectivity and impartiality in its journalism. This is a reputation which it is now eroding on a daily basis. The reasons for this will no doubt be multiple but a principal factor must be the edict apparently issued by the Director-General Tony Hall that Brexit was a settled issue. Any serious investment of journalistic resources into investigating the illegality and interference in the referendum would have been at odds with the view that Brexit was a settled issue. Having, other than John Sweeney on Newsnight, invested no energy into investigating referendum illegality, the BBC has compounded the situation by not paying sufficient attention to those who have been. In short the treatment meted out to Carol Cadwallader on the Marr Show and the misogynistic abuse she has received from Andrew Neil is entirely unacceptable. These matters have been raised with the BBC and they have shown themselves uniquely ill-prepared to confront their own shortcomings.
A signal failing was the way in which Laura Kuenssberg and the Today Show cooperated with Matthew Elliot of Vote Leave on his leaking of the Electoral Commission’s draft report into its lawbreaking . This enabled Elliott to minimise the adverse impact of the Commission’s conclusions . The position was exacerbated upon the publication of the report by the BBC referring to the finding that VL had broken the law as allegations when they were in fact offences . Kirsty Wark even contradicted Chris Wylie on this point on Newsnight . More recently on BBCqt Fiona Bruce equated Vote Leave’s lawbreaking with some of Remain’s forecasts being wrong
So Mrs May has been fortunate in that both the Opposition Front Bench and the BBC have been complicit in her determination to avoid any action which would question the legitimacy of the referendum result and thereby her own legitimacy .
We are now at a critical moment in the Brexit story .By her own crass ineptitude (presented in the current narrative as determined resilience)Mrs May has diminished her own standing to a new low . Her party is divided and although their tribal loyalties will not have been extinguished they will be less resolute in her defence than formerly .
Now is the time to seize the moment and pursue the case determinedly .All the factors are coming together for an extension . We should use that opportunity to get to the bottom of what happened in the referendum so lessons can be learned and we can take the steps necessary to make our democracy safe for the future