Richard North, 02/11/2018  

There is no question that the 2016 referendum on the UK's membership of the European Union was seriously flawed. But those who would have it that the irregularities over spending should invalidate the contest are way down the queue.

In the list of defects which could have rendered the referendum invalid, probably the most damning was the way personality politics predominated, relegating the issues to a very poor second place. Alongside that is the way the issues were trivialised, and false claims predominated – on both sides of the divide.

By any measure, it is also fair to say that both official campaigns were badly conducted and, in terms of impact, more so the official Remain campaign, "Britain Stronger in Europe".

Reviewing my own coverage of the campaign, which started on 15 April 2016, "Stronger In" barely features in my daily reports. By far the greater amount of coverage was given to "Vote Leave" and Arron Banks's "Leave EU", as fears grew that their activities were damaging the leave cause.

Towards the end of the campaign period, my conviction grew that we were losing the battle, much of that due to the incompetence of the Vote Leave efforts and the embarrassingly crass input of Leave EU.

If expenditure is a measure of activity, therefore, we would take the view that the more these two leave campaigns spent, the worse off we were. The more they did, the more they served to drive away our vote.

That said, of the £32 million spent in the designated campaign period – making it the most expensive referendum campaign ever in British political history - the Remain campaign outspent Leave by a margin of £19,070,566 to £13,436,241.

And that does not take into account the £9.3 million spent by the government on distributing its 16-page leaflet to 27 million households in the UK, extolling the virtues of remaining in the European Union.

If one adds that expenditure, the Remain campaign beat Leave by £15 million, effectively spending more than double the amount on promoting pro-EU sentiment than was spent on trying to convince people to leave.

Currently, though, some unreconstructed remainers are using the Venice Commission code of practice on referendums to argue that the failure to abide by the spending rules invalidates the referendum and, as a result, the vote should be annulled.

This was given an added impetus yesterday by the decision of the Electoral Commission to refer Arron Banks, his company "Better for the Country", and others, to the National Crime Agency, which is now to carry out an investigation of "multiple suspected offences".

The Electoral Commission's own investigation had focused on £2 million reported to have been loaned to Better for the Country by Arron Banks and his group of insurance companies and a further £6 million reported to have been given to the organisation, on behalf of Leave.EU, by Arron Banks alone.

It is claimed that £2.9 million of this money was used to fund referendum spending on behalf of Leave.EU and donations to other campaign groups during the EU referendum.

Following its investigation, the Commission says it has reasonable grounds to suspect that Mr Banks was not the true source of the £8 million loans made to Better for the Country. It further asserts that Loans to Better for the Country, on behalf of Leave.EU, involved a non-qualifying or impermissible company – Rock Holdings Limited, which is incorporated in the Isle of Man.

The Commission also claims that Arron Banks, Elizabeth Bilney and others involved in Better for the Country, Leave.EU and associated companies concealed the true details of these financial transactions, on which basis it believes that a number of criminal offences may have been committed.

However, even if Mr Banks and the others are charged, tried and convicted, it is not necessarily the case that the referendum result should be annulled. The argument is as broad as it is long.

For instance, the Venice Commission code of practice also requires that equality of funding should be ensured between a proposal's supporters and opponents. Given that the Remain proposition so massively outspent Leave, we could argue that, had the vote gone the other way, it could have been set aside on the basis of the disparity of funding.

Where the argument either way should fall though, is that it would not have recognised the special – if not unique – character of this referendum. Although the campaign might have started officially on 15 April, it can in fact trace its beginnings to 1975 and the referendum on the EEC. In many respects, the 2016 was not a fight in isolation but a re-match – round two of a long-standing battle.

That battle was given a boost in 1992 with the Maastricht Treaty, stimulating the creation of Ukip, and again in 2004 when Tony Blair promised a referendum on the (then) European Constitution. It was then that this blog was established, with the view of fighting (and winning) that referendum.

The refusal of Gordon Brown in 2009 to give us a referendum on the renamed constitution, as it morphed into the Lisbon Treaty, and then what was seen as David Cameron breaking his promise on a referendum in 2010, then gave further boosts to the campaign.

By the time the official campaign started in 2016, therefore, the actual campaign had been running for the best part of forty years, absorbing of the period millions of pounds in funding.

And nor was that funding one-sided. Much of the EEC and the EU budget was devoted to propagandising, or buying influence in a partly successful attempt to build support for European integration. Billions of pounds have been spent in this way – countered in part by hostile media coverage which, if treated as advertising, could be valued in millions.

Where the Venice Commission code of practice applies, it recommends that, in the event of a failure to abide by the statutory requirements of a referendum - for instance if the cap on spending is exceeded by a significant margin - the vote must be annulled.

But to take account only of the funding by the campaign groups during the limited period of the official campaign is to ignore the sheer longevity of the actual campaign, when the overall funds spent dwarf the figures under consideration. And it was probably during this longer period that the majority of voters made up their minds.

As Pete points out, nothing that Vote Leave or Leave EU could have done could have influenced votes of those who had already decided where they stood. But, of the softer vote, it is extremely plausible that many were put off voting for Leave by the sheer crass ineptitude of the vote Leave and Leave EU.

Taking that into account, should Banks be tried and convicted of breaking the referendum rules, procuring non-permissible funding, the "Remain" campaign might count themselves fortunate that he did – otherwise the Leave margin might have been that much bigger.

But there are further problems for those who want to turn the clock back, to go rushing back to the bosom of Mother Europe. Firstly, although the government has been reacting to the result of the referendum, the legitimacy of the action rests not on the popular vote but on the vote in parliament.

This, from the point of view of the EU, is rather important. Whether of not the referendum was properly conducted is of no relevance to it. The decision to lodge the Article 50 notification was taken by the UK government, with the assent of parliament. In legal terms, the EU has no grounds for questioning the validity of the notification.

Secondly, it is not yet clear as to whether the European Council can accept a revocation of the Article 50 notice, should the UK seek to withdraw it. For this we will have to wait until the ECJ makes its ruling – expected in December.

On this basis, the legality or otherwise of the activities of the parties to the campaign are most certainly irrelevant. The UK government did not need a referendum to take the action it did, as there is no constitutional role for a popular vote in deciding public policy.

Those people, therefore, who are banking on Banks – anticipating that he will be found guilty and that the referendum result will be overturned – are likely to be disappointed. Even at a more pedestrian level, it is unlikely that the NCA investigation can be concluded by 29 March, after which any result would be too late – even if it was relevant.

Nor could the negotiations be put "on hold", as some MPs are suggesting (not that it would make any difference). The EU has no reason to take note of the Electoral Commission's action, and the Article 50 clock will continue its countdown.

All of this though, skates over another salient fact. Over the decades that we have been in the EEC and then the EU, advocates have been unable secure the long-term popular support for continued membership. Complaining about the conduct of the referendum, therefore, misses the point.

Without a universal, stable mandate, it was only going to be a matter of time before our membership of the EU was challenged. If not in 2016, it was going to be whenever another treaty came up for ratification, whence the same drama would be played out. And like as not, that would have delivered the same result.

There is still time, though, to determine whether we can have a productive relationship with the EU, from a different standpoint. Trying to turn the clock back is not going to help in this endeavour.

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