The Electoral Commission’s investigation into Leave’s funding could halt Brexit

The Electoral Commission’s investigation into Leave’s funding could halt Brexit

The door to an exit from Brexit might just have opened

Butterflies are beloved of writers of alternate history and counterfactuals. The notion that but for the eddies created by the meanderings of an individual butterfly, a hurricane would (or would not) have developed is as old as it is misleading; there are many butterflies, there are few hurricanes and there is precious little connection from the one to the other.

It’s a curious example of an argument reduced to absurdity which is, nonetheless, taken at face value because the concept it embodies is so elegant.

And the concept is right: even the greatest of moments have, at their extremes, trivially insignificant beginnings. A hurricane may not be begun by a butterfly but its genesis does rely on cloud formation and wind patterns which, a fortnight before the storm becomes organised, are hidden unrecognisably deeply within that day’s weather.

On the human scale, there is just a chance of a new Brexit hurricane brewing. The announcement at the start of the month that the Electoral Commission was investigating Aaron banks’ role in funding the Leave campaign during the 2016 referendum is the butterfly. Like all butterflies, it is flimsy: as yet, we have little to go on other than that announcement and the update yesterday that the Commission isn’t getting the data it wants. On the other hand, all hurricanes start somewhere.

Why does this matter? Because unlike the claim of Russian interference via social media, which even if true, will have been of marginal importance given its limited scale, what the Leave campaign said and did was crucial to the referendum’s outcome.

We should at this point pause to note that there were two main Leave campaigns and Banks’ involvement was with the unofficial one. However, in terms of practical effects on the result, who received the designation wasn’t all that important. Indeed, the fact that there were two campaigns meant that internal contradictions in the Leave claims could be maintained more effectively. What did matter was the effect those campaigns had and – the pertinent point here – the impact the Banks money had.

It should also be stressed that we’re dealing with a whole house of cards of contingencies here; a house built on shaky the foundations. As yet no rules have been proven to have been broken, nor any impropriety asserted. But given that there is an investigation underway, we must also consider the possibility that the Electoral Commission could conclude that there was. Those caveats noted, let’s do so.

The central point here is just how important was the referendum? That might sound a simple question and on one level it is – politically, Brexit could not have happened without it – but on the legal and constitutional planes, it becomes more complex.

The process question here returns to the limits of parliament’s sovereignty: are its actions entirely its own or are factors influencing it of sufficient import that its votes can be invalidated if the process in which they occurred were itself invalid? From the speeches of many MPs (including the PM), and from commitments the government made before the referendum, it’s highly likely that parliament voted to trigger A50 as it did because, and only because, of the referendum result. If parliamentary sovereignty is absolute then the referendum is irrelevant: it doesn’t matter whether Leave or Remain won, or whether any campaign finances broke any laws (on either side) because parliament could always have done what it ended up doing.

    To argue the other side is to overturn the constitutional theory of centuries. Nonetheless, if a major part of the Leave campaign, whether the official one or not, was found to be in breach of funding laws (and to reiterate, this remains hypothetical), to such an extent that it might have affected the outcome, then there would be an arguable case that not only was the referendum result invalid but that the political actions that flowed from it were unconstitutional because they were predicated on a flawed process.

There is a certain irony to this line of argument because it would mean that a lot of people who’ve been trying to claim that the referendum was only ‘advisory’ would now have to argue that it had not just great moral weight but real constitutional value – but at least they’d be right this time.

This matters because Article 50(1) states that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. If Britain’s notification wasn’t consistent with its constitutional requirements, then the notification would be invalid and Brexit would be off, for now at least.

As an aside, if the Supreme Court were to rule in favour of a challenge against the legitimacy of the notification, it’d also move it one step closer to the US situation of being able to strike down legislation – and for that reason, I think they’d be extremely wary of taking such a step. Further, if they were to accept such a challenge, it’d also embed the concept of popular sovereignty into the constitution and imply a convention binding MPs to a referendum’s outcome, barring exceptional circumstances.

For all those reasons, I think it’s unlikely that even if there is sufficient doubt cast on the Leave finances to justify a court case, the Court would deliver such a revolutionary decision: it would run counter to its opinion on the Gina Miller case and would open too many cans of worms that the constitution has taped shut.

There is a joker in the pack here though. What if the government, backed by parliament, were to argue its own notification should be invalidated? Given the difficulties it’s experienced trying to make progress, you could understand it grasping at any straw to give it more time or even make the whole thing go away. They would surely be powerful, probably clinching, considerations?

The inevitable consequence of a nullification of the notification would have to be a second EU referendum, so all that might happen could be a delay to Brexit if Leave were to win again. However, whether Leave would win again would be very much more up in the air than it is now. The most recent YouGov survey (7-8 Nov) to ask whether Britain was right or wrong to leave the EU – which is effectively asking people how they’d have voted if they knew then what they know now; not quite the same as how they’d vote in a second referendum – had ‘wrong’ with a four-point lead. The reason why that change of heart hasn’t had more impact on the debate is partly because the swing is only slight and partly because it’s hypothetical: it doesn’t challenge the mandate contained in the original vote.

In our real world, plenty of Remain voters still back Brexit on the basis of that referendum mandate. I think the most recent time this question was asked was the YouGov poll of 22-24 Sept, so the data’s quite old now, but less than one-third of Remain voters backed an outright abandonment of the process: the rest either supporting the government going ahead with Brexit in some form or wanting a second referendum (or don’t know). More than half of all those polled, or 62% if Don’t Knows are excluded, backed some form of Brexit.

Put simply, for as long as the mandate of the 2016 referendum holds, Brexit will follow. Political considerations will mean that there is no other option. However, if – and it’s a huge ‘if’ built on a castle of contingencies – if the government was looking for a way out, then claiming that the referendum, and hence the A50 notification, was invalid might provide it. The first flutterings of an exit from Brexit might just be detectable.

David Herdson

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