The Good Law Project, R (On the application of) v Electoral Commission & Anor

At the permission stage, a judicial review claim raises an arguable issue where a statutory spending regime may permit the same payment to be both a donation to one campaigner and an expense incurred by another. The legislation does not expressly make those categories mutually exclusive. The court may determine the meaning of legislation administered by a public body even where the issue could later arise in criminal proceedings, provided that criminal proceedings have not been instituted. The theoretical possibility of a private prosecution is not necessarily an adequate alternative remedy. Questions whether expenses were incurred pursuant to a common plan are ordinarily factual.

The claimant sought judicial review of the Electoral Commission’s assessment of referendum spending involving Vote Leave Limited, Mr Darren Grimes, Veterans for Britain and AggregateIQ Data Services Limited during the 2016 EU referendum. It challenged the Commission’s interpretation of referendum expenses, its approach to expenses incurred pursuant to a common plan, advice allegedly given during the campaign, and its initial decision not to investigate.

The Commission subsequently opened an investigation after further information came to light. The court considered which grounds remained arguable and justiciable, including whether statutory questions should be determined where they might later arise in criminal proceedings.

1. Permission was granted on ground 1. It was arguable that a payment could be both a donation to one permitted participant and an expense incurred by the donor. PPERA contained no express provision making those categories mutually exclusive. [23]-[31]
2. Permission was refused on ground 2. Whether expenses were incurred pursuant to a common plan under paragraph 22 of Schedule 1 to the European Union Referendum Act 2015 depended on factual matters concerning the parties’ intentions, knowledge and understanding. [34]-[39]
3. The possibility of criminal proceedings did not bar judicial review. The court could determine whether the Electoral Commission had correctly interpreted the legislation before criminal proceedings were instituted. The possibility of a private prosecution was not a realistic alternative remedy. [32]-[33]
4. Permission was refused on ground 3. Although the Commission’s advice about campaign materials was analogous to advice about services and was misleading in context, a factual inquiry would serve no useful purpose where only declaratory relief was sought. Ground 4 had fallen away because the Commission had opened an investigation. [40]-[46]
5. No order was made at that stage on costs. The costs-capping application required updated evidence, and the case was directed to be listed by mid-July 2018. [47]-[50]