Vote Leave cheated in the 2016 Brexit vote – how would we stop them doing it again?

The events of the last fortnight in UK politics has travelled at lightning speed. A group of rebel MPs have broken ranks to form The Independent Group and Labour finally seem committed to backing a further Brexit referendum with an option to remain. Just as significant, but less widely reported, the court of appeal – which yesterday confirmed their oral decision in writing – have struck out a claim arguing that the prime minister’s decisions to trigger Article 50 and pursue the Brexit process are flawed in light of the corrupt and illegal practices in the 2016 referendum.

The crowdfunded legal challenge sought to establish that since the sole basis for the prime minister deciding to take the UK out of the EU was her view that it represented “the democratic will of the people”, it was unreasonable for her simply to ignore subsequent findings by the Electoral Commission of serious offences, including overspending, incorrect reporting and unlawful funding by Vote Leave and Leave.EU. On this basis, Jessica Simor QC for the lead claimant, Susan Wilson, submitted that the vote was not “free and fair” and thus, not capable of representing the “democratic will of the people”.

Lawyers for the prime minister did not dispute the findings made, but contended that Theresa May was aware of the multiple investigations into the referendum (including ongoing inquiries and cases yet to be finalised) and these did not make her decision making unlawful. The referendum was advisory and, as such, did not fall within the scope of legislation that might, in other circumstances, void an election by virtue of lawbreaking. Indeed, the court of appeal held that “an advisory referendum is a very different animal from a binding election". Though the case will not progress to full hearing, the arguments ventilated during it leave many questions hanging about the state of our democracy.

Stepping back, it is ironic that central to the prime minister’s justification for implementing Brexit was, and remains, the upholding of democracy. It is, at very best, puzzling and, at worst, deeply troubling that parliament agreed, when legislating for 2016 Brexit referendum, that no additional measures were necessary to deter any cheating during the campaign. Also alarming was that the legislation authorising the referendum was silent on whether the common law, of which there are numerous precedents on fraudulent elections, could apply.

Perhaps MPs thought that was a non-issue, assuming, because the referendum was advisory, that any corrupted result could be set aside.

Yet we are now in a tremendously uncomfortable position where the Electoral Commission has found a criminal standard of proof that electoral offences were committed by the official Leave campaign and a key unofficial Leave campaign and further, on the basis of “reasonable evidence” has referred both Vote Leave and Leave.EU to the metropolitan police and the National Crime Agency, which is investigating alleged Russian interference in to the activities of the latter campaign. Despite all this, a majority in Westminster appear to be impervious to its implications to our democracy.

Some will argue that financial overspend/malpractices and data breaches cannot be shown to have caused more people to vote Leave than Remain. The difficulty with this argument is that causation can never be shown (apart from in direct vote-rigging cases). How could it possibly be proved that the same result would, or would not, have occurred had there been no wrongdoing? That is why the case law has never required this to be established. The relevant question is whether it could reasonably be supposed that this was the case. That makes sense; people need to feel confident that the system was fair, such that their vote meant something. As it stands there is a real question as to whether people can be confident that the result was fair.

On the main substantive ground relating to the validity of the 2016 referendum, the permission judgment of the court of appeal found that any breach of election rules was insufficiently material to trigger the application of common law that might render the 2016 referendum invalid.

Firstly, that there was insufficient certainty and finality in the findings of misconduct and, secondly, the court had no evidential basis to conclude that the referendum result would have been different. Thirdly, the court concluded that the advisory nature of the referendum put its outcome beyond the remit of the court to quash. The decision to notify the UK departure from the EU was made by the prime minister under a discretionary power granted by parliament. It “did not require her to await the outcome of any and all future investigations into actual or potential irregularities in the EU referendum”.

So, beyond the courts, the critical question remains unanswered. It is not known whether the same 2016 referendum result would, or would not, have occurred had there been no wrongdoing. It is not possible to be confident that the 2016 referendum result was fair.

In any other scenario, be it an athlete competing in the Olympics or even a student in an exam, the mere act of cheating alone invalidates what follows – regardless of the impact it had on the outcome. Similarly, if evidence in a criminal trial is severely tainted or a witness commits perjury, there is no justice in permitting the conviction to stand without the availability of appeal.

So why is it any different when it comes to what the Brexiteers describe as the “biggest” electoral exercise in British history? Perhaps because politics is a special and unique arena of its own – and suggesting to the public a momentous electoral outcome was, among other things, brought about by significant breaches of electoral law, may not be politically palatable.

But all of this really does matter, indeed it is critical, because the rules governing our elections and referendums are the rules that maintain faith in our democracy – trust being a central element to a properly functioning state. Moreover, if, as in the 2016 referendum, there are no weighty repercussions for violating the rulebook, parties and campaign groups are incentivised to disregard the regulatory framework – safe in the knowledge the harshest sanction they could face is a financial slap on the wrist from a regulator – already described by one in committee as “the cost of doing business”. The threat to public trust and confidence in how we conduct our democracy is grave. Given the international picture of electoral interference and data abuse, including the investigations into the US elections, the dangers for our democracy cannot be underestimated.

The court of appeal made it clear that they do not want to “interfere” with the 2016 referendum. Now, more than ever, it is essential MPs protect the national interest and that of their constituents, above party politics. If a Final Say referendum crystallises, it is vital that parliament engages in a cold, rational debate about the imposition of robust legal safeguards. Firstly, to act as a deterrent to non-compliance with agreed rules and, secondly, to ensure that any poll in which corruption occurs may be invalidated. If democracy means anything to those in power, they cannot allow any further cheating to taint it.

Felicity Williams and Chevan Ilangaratne are members of Lawyers Against Brexit