Vote Leave Ltd v The Electoral Commission

An express incidental-powers provision may authorise a statutory body to publish a report explaining an investigation and enforcement decision, even where no provision expressly permits that report. The Electoral Commission’s investigatory and civil-sanctions powers formed part of a package of enforcement functions. Publishing a report about their exercise was incidental to those functions. It was not an additional sanction or a circumvention of statutory appeal safeguards. Express duties to publish particular reports did not exclude the power to publish other reports. The power should be exercised reasonably and responsibly, having regard to the public interest in openness.

The Electoral Commission fined Vote Leave Ltd for offences concerning referendum campaign funding and spending under the Political Parties, Elections and Referendums Act 2000. It also published a detailed report explaining the investigation, its findings and the fines imposed. Vote Leave challenged only the publication of the report, arguing that the Commission had no statutory power to publish it and that publication amounted to an additional sanction.

Yip J and Swift J refused permission to apply for judicial review. Hickinbottom LJ later granted permission and directed that the claim be retained in the Court of Appeal. The central issue was whether publication was authorised as incidental to the Commission’s statutory enforcement functions.

The Court of Appeal dismissed Vote Leave Ltd’s application for judicial review.

1. The Political Parties, Elections and Referendums Act 2000 contained no express power to publish a report of this precise kind. Nevertheless, paragraph 2 of Schedule 1 authorised the Commission to do anything calculated to facilitate, or incidental or conducive to, carrying out its functions.
2. Sections 145 to 147, together with Schedules 19B and 19C, formed a package of enforcement functions. Those functions included monitoring and securing compliance, investigating possible offences and imposing civil sanctions. A report explaining how those functions had been performed in a particular case was properly regarded as incidental to them. Singh LJ added that “monitor” could include investigation and scrutiny after the relevant events, especially where the referendum period was narrowly defined.
3. Publication did not amount to a further sanction. The only sanction imposed on Vote Leave was the requirement to pay the fines. The report explained the basis of the decisions and was ancillary to them. It did not circumvent the statutory right of appeal or create a separate public reprimand. The fact that the paragraph 6(5) notices were public documents did not prevent the Commission from producing a single, comprehensive and comprehensible report.
4. The public interest in openness by public bodies exercising investigatory functions supported that construction, with Kennedy v Charity Commission [2015] UKSC 20, [2015] AC 455 providing a recent affirmation of the principle. Express reporting duties under the Act did not imply that other reports were prohibited.
5. R v Liverpool County Council, ex p Baby Products Association [2000] LGR 171 was distinguishable because the press release there would have circumvented safeguards in a statutory product-safety code. R v Director General of Fair Trading, ex p Taylor & Co Ltd [1981] ICR 362 did not establish a free-standing power for a statutory corporation to speak without statutory authority. The alternative arguments based on section 145(1) itself and section 19 of the Freedom of Information Act 2000 were not necessary to decide the claim.

• Court of Appeal (Civil Division): Hickinbottom LJ granted permission to apply for judicial review on 4 June 2019 and directed that the claim be retained in this Court. The Court of Appeal dismissed the application: [2019] EWCA Civ 1938.
• High Court (Queen’s Bench Division), Administrative Court: Yip J refused permission on 20 November 2018. Swift J refused the renewed application at an oral hearing on 15 January 2019. No citation for those decisions was stated.