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The Divisional Court (Leggatt LJ and Holgate J) has granted permission for a judicial review challenge to the Electoral Commission’s decision that the official ‘Leave’ campaign’s spending during the 2016 EU Referendum was lawful.

Under electoral law, Vote Leave Ltd had a campaign spending limit of £7 million. As well as spending close to £7 million itself, it also paid for about £700,000 of campaign-related services on behalf of two other campaigners. It treated that money as falling outside its £7 million limit on the grounds that the payments were ‘donations’ rather than as expenses, even though the money was paid straight to the Canadian data analytics company AggregateIQ (on whose services Vote Leave Ltd had spent over £3 million itself) and never passed through the other campaigners’ hands.

The Electoral Commission investigated the transactions in early 2017 and concluded that (i) the expenditure should be treated as having been incurred by the two campaigners and not by Vote Leave Ltd, and (ii) on the facts of the case there was no reason to suspect any co-ordinated plan or arrangement.

The Claimant (the Good Law Project Ltd) issued proceedings in October 2017 challenging both conclusions. Shortly afterwards, the Commission agreed to re-open its investigation into the relevant transactions, but maintained that its analysis of the statute was correct.

Following an oral hearing in March 2018, the Divisional Court concluded that it was arguable that the expenditure should be treated as incurred by Vote Leave Ltd, and that the challenge should proceed so that the Commission’s re-opened investigation proceeded on the correct legal basis. It refused permission to argue a point about the meaning of the ‘plan or arrangement’ provisions on the grounds that the re-opened investigation made it unnecessary.

As well as being of political interest the judgment addresses the circumstances in which an arguable claim should nevertheless be refused permission on the grounds that it has become academic.

Click here for the judgment. 

Tom Cleaver acted for the Claimant.

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