Allegations of unlawful campaigning in the 2016 EU referendum
Several allegations of unlawful campaigning in the 2016 EU referendum have been made. Some allegations were dismissed by the investigating bodies, but in other cases wrongdoing was established, leading to the imposition of penalties. Sanctions have included the levying of the maximum fine possible on Facebook for breaches of data privacy. Calls for changes in UK electoral law have been made and the standing of the EU referendum result has been challenged.
This article surveys alleged breaches of the law according to the different institutions tasked with determining these breaches: the Information Commissioner's Office (regarding the handling of personal data); the Electoral Commission (regarding penalising breaches of electoral law); the National Crime Agency, Metropolitan Police, and Crown Prosecution Service (regarding criminal prosecution); the UK Parliament; the European Parliament; the Venice Commission; and private prosecutions. The article also surveys and clearly labels notable investigations of possible unlawful behaviour which are ongoing, or where no breach of the law was ultimately identified.
Information Commissioner's Office (ongoing)
On 4 March 2017, the Information Commissioner's Office reported that it was 'conducting a wide assessment of the data-protection risks arising from the use of data analytics, including for political purposes' in relation to the Brexit campaign. As of July 2018, when it issued a formal update on its investigations, the Information Commissioner's Office was investigating a number of bodies for unlawful use of data during the EU Referendum—particularly the unlawful passing of data from one organisation to another.
In May 2017, the ICO also launched an investigation into the use of data analytics for political purposes, making reference to both the EU referendum and the 2015 general election. The main report was published 11 July 2018, but the investigation was at that point ongoing due to an appeal by UKIP, which was rejected in February 2019. As of April 2019, the investigation was in this respect ongoing. In November 2019 it was reported that the ICO would next report is spring 2020 or later.
These investigations included:
- Cambridge Analytica, Global Science Research and their acquisition and deployment of Facebook data.
- The relationship between AggregateIQ, SCL Elections Ltd and Cambridge Analytica.
- Cambridge University and the Cambridge University Psychometric Centre.
- Links between Leave.EU and Cambridge Analytica.
- The relationship between Leave.EU and Eldon Insurance (along with the passing of data to Big Data Dolphins and the University of Mississippi).
- The relationship between Vote Leave, AggregateIQ, and other Leave campaigns.
- Vote Leave's handling of personal data.
- The official Remain campaign's use of personal data, including data which was sold to it by the Liberal Democrats.
The sections below report penalties and enforcement notices that have been issued.
The Information Commissioner's Office has found Leave.EU guilty of breaking the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection Act 1998 on a number of counts. This included using contacts gathered by Eldon Insurance for their own direct marketing purposes, and, vice versa, enabling the insurance company to use their contacts for its direct marketing.
SCL Elections Ltd
On 4 May 2018, the Information Commissioner's Office served a legal notice on SCL Elections Ltd, requiring that it give the American professor David Carroll all the personal information about him held by the company.
On 24 October 2018, the Information Commissioner's Office served a legal notice requiring AggregateIQ Data Services Ltd to 'erase any personal data of individuals in the UK'.
On 24 October 2018, the Office found that between 2007 and 2014, Facebook had broken the UK data law then in force (the Data Protection Act 1998) and applied the highest penalty allowed under that Act (£500,000), noting that under more recent legislation (the General Data Protection Regulation) the fine would have been much higher. Facebook allowed application developers to access people's data "without sufficiently clear and informed consent". It failed to keep this personal information secure, which allowed Aleksandr Kogan and his company Global Science Research to harvest the data of as many as 87 million people (including at least one million in the UK) worldwide and later to share a subset of this data further, including with SCL Group, the parent company of Cambridge Analytica. Facebook also did not act firmly enough to ensure that, once known, these data breaches were remedied. (In July 2019, it was also reported that Facebook would be fined around $5bn by the US Federal Trade Commission in relation to the same and related issues.)
In February 2017, the Electoral Commission announced that it was investigating the spending of Stronger In and Vote Leave, along with smaller organisations, as they had not submitted all the necessary invoices, receipts, or details to back up their accounts.
In the ensuing months, the Electoral Commission levied a number of fines on political parties and other campaign entities due to breaches of campaign finance rules during the referendum campaign, with a maximum possible fine under the law being £20,000. Fines of £1000 or more were:
|16 August 2017||Constitutional Research Council||Failure to notify the Electoral Commission of political contributions it made (including £435,000 to the DUP), and gifts it received.||£6,000|
|19 December 2017||Liberal Democrat Party||Failure to deliver a complete and accurate spending return.||£18,000|
|19 December 2017||Open Britain (formerly Britain Stronger in Europe)||Failure to deliver a complete and accurate spending return.||£1,250|
|11 May 2018||Leave.EU||Failure to deliver complete and accurate pre-poll transaction report and post-poll spending information (responsible person: Elizabeth Bilney).||£50,000|
|15 May 2018||Best for Our Future Limited||Failure to deliver a complete and accurate spending return.||£2,000|
|15 May 2018||Unison||Failure to deliver a complete and accurate spending return and late payment of an invoice.||£1,500|
|17 July 2018||Vote Leave||Failure to deliver a complete and accurate spending return (responsible person: David Alan Halsall); failure to provide documents on time.||£41,000|
Constitutional Research Council
The DUP received £435,000 from the Constitutional Research Council. The Electoral Commission fined the Constitutional Research Council for not declaring its donation to the DUP, the Electoral Commission found that the DUP had not itself broken electoral law. Press speculation continued, both on the question of the ultimate source(s) of the Constitutional Research Council's donation, and the legitimacy of its use, which included £282,000 for pro-Brexit advertising in the Metro newspaper, which does not circulate in Northern Ireland. In December 2018, the Good Law Project initiated judicial proceedings over the Commission's decision not to investigate further.
The Electoral Commission noted that 'The Commission continues to be prohibited by legislation from disclosing any information concerning donations to Northern Ireland recipients made prior to 1 July 2017 (section 71 of the Political Parties, Elections and Referendums Act 2000). We continue to urge the UK Government to bring forward legislation that will enable us to publish information on donations from January 2014.'
Arron Banks, Better for the Country, and Leave.EU
Leave.EU ran a separate campaign to the official pro-Brexit group Vote Leave. In April 2017, the Commission specified that 'there were reasonable grounds to suspect that potential offences under the law may have occurred' in relation to Leave.EU.
On 11 May 2018, the Electoral Commission gave Leave.EU the maximum available fine, £20,000, for unlawfully overspending. Leave.EU failed to include in its referendum spending return spending of £77,380 in fees paid to the company Better for the Country Limited as its campaign organiser. In addition, Leave.EU paid for services from the US campaign strategy firm Goddard Gunster that should have been reported in its spending return but were not.
The Commission concluded that the overspend was, at minimum, £77,380 – exceeding the statutory spending limit by more than 10% – and noted that 'the Commission is satisfied that the actual figure was in fact greater'. The Electoral Commission's director of political finance and regulation and legal counsel said that the "level of fine we have imposed has been constrained by the cap on the commission's fines". In May 2018, Leave.EU's co-founder Arron Banks stated that he rejected the outcome of the investigation and would be challenging it in court.
Vote Leave and BeLeave
In March 2017, the Electoral Commission cleared Vote Leave of breaking spending limits. But it re-opened the investigation in October 2017 due to new evidence. In July 2018, the UK Electoral Commission found Vote Leave to have broken electoral law, spending over its limit. Not declaring £675,000 incurred under a common plan with BeLeave, Vote Lead unlawfully overspent its £7m limit by £449,079. The Electoral Commission referred the matter to the police.
On 14 September 2018, following a High Court of Justice case, the court found that Vote Leave had received incorrect advice from the UK Electoral Commission, but confirmed that the overspending had been illegal. Vote Leave subsequently said they would not have overspent without the inaccurate advice and declared that they would appeal against their fine. But on 29 March 2019 announced that they would not in fact make an appeal.
Vote Leave attempted to prosecute the Electoral Commission for publishing its July 2018 report 'Report of an investigation in respect of: Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain', alleging that it had caused 'reputational damage', but their request for judicial review was rejected in January 2019, since the Electoral Commission's publication had been lawful.
In 2016–18, the European Parliament found that the Alliance for Direct Democracy in Europe, a group of European political parties led by the United Kingdom Independence Party, had misspent over €500,000 of EU funding. Some of this was on UKIP's 2015 UK election campaign and opinion polling during the 2016 Brexit referendum campaign. The Parliament required the repayment of the funds and denied the organisations some other funding.
UK Parliament (ongoing)
in 2018, the intelligence and security committee of the UK Parliament, under the chairmanship of Dominic Grieve, began researching a report on allegations of Russian interference in the 2016 Brexit referendum. On 17 October 2019, the Committee passed the completed report to the government, which said that it would be published after the 2019 UK General Election.
Metropolitan Police and Crown Prosecution Service (ongoing)
Having established that the Vote Leave and Be Leave campaigns had broken electoral law in July 2018, the Electoral Commission passed files to the Metropolitan Police for criminal investigation on the 19th of that month.
As the police investigation proceeded, high-profile political interventions took place. On 16 October 2018, a cross-party group of 77 MPs, including members of all the large parties, wrote to the Metropolitan Police and National Crime Agency to express concern that criminal investigations had perhaps stalled, and were told that investigations were ongoing. On 19 June 2019, Ben Bradshaw (Labour MP), Caroline Lucas (Green MP), Tom Brake (Liberal Democrat MP), Jenny Jones (Green lord) and Fiona Mactaggart (former Labour MP) applied for judicial review of the Metropolitan Police, arguing that criminal investigations had been unjustifiably delayed. The Metropolitan Police reported that investigation was ongoing.
Venice Commission (ongoing)
On 19 June 2019, a cross-party group of 38 of the 73 UK Members of the European Parliament wrote to the Venice Commission, a body of the Council of Europe charged with assisting Council members regarding constitutional law, to request an investigation into "the breach of spending rules and data-protection laws" and "the exclusion of non-UK EU citizens residing in the UK from the franchise".
Allegations not upheld
National Crime Agency and Metropolitan Police
In November 2017, the Electoral Commission said that it was investigating allegations relating to the funding sources of funding of pro-Brexit organisations, specifically that Arron Banks, an insurance businessman and the largest single financial supporter of the Brexit campaign, violated campaign spending laws. From 1 November 2017 to 1 November 2018, the Electoral Commission investigated the source of £8m paid to the closely associated organisations Leave.EU and Better for the Country Ltd., a company of which Banks was a director and majority shareholder. The company donated £2.4 million to groups supporting British withdrawal from the EU. The investigation began after the Commission found "initial grounds to suspect breaches of electoral law". The Commission specifically sought to determine "whether or not Mr Banks was the true source of loans reported by a referendum campaigner in his name" and "whether or not Better for the Country Limited was the true source of donations made to referendum campaigners in its name, or if it was acting as an agent".
- Although the source of the money was claimed to be Arron Banks, this was not in fact the case.
- The financial transactions whereby the £8m was paid included a company incorporated in the Isle of Man, Rock Holding Limited, which was an impermissible party to political campaign funding under UK law.
- Leave.EU, Elizabeth Bilney (the responsible person for Leave.EU), BFTC, Mr Banks, and possibly others, concealed the true details of these financial transactions, including from the Electoral Commission, and also did so by knowingly making statutory returns/reports which were incomplete and inaccurate, or false.
Different aspects of the case were referred to the National Crime Agency and Metropolitan Police for criminal investigation. On 13 September 2019, the Metropolitan Police concluded that while "it is clear that whilst some technical breaches of electoral law were committed by Leave.EU in respect of the spending return submitted for their campaign, there is insufficient evidence to justify any further criminal investigation", and on 24 September 2019, the National Crime Agency said it had found no evidence of criminality in respect of the issues raised by the Electoral Commission and that no further action would be taken.
In Wilson v Prime Minister, the claimants argued that illegality through Russian interference, criminal overspending by Vote Leave and criminal investigation into the largest donor, Arron Banks, before and during the referendum undermined the integrity of the result, and rendered the decision to leave void. The case was not upheld.
In Ball v Johnson, Marcus J. Ball brought a crowdfunded case against the MP and Vote Leave chairman Boris Johnson, alleging misconduct in public office on the grounds that he knowingly lied when claiming that the UK sent £350m to the EU each week and that this could instead be spent on the National Health Service. The first hearing, on 14 May 2019 at Westminster Magistrates' Court, was followed by a public hearing on 23 May, and which Johnson's legal representatives reported that Johnson denied the allegations. On 29 May, the district judge, Margot Coleman, concluded that there was a case to answer and that Johnson was to be tried. Johnson responded by seeking judicial review of Coleman's decision, arguing that there was not a case to answer, and the decision was correspondingly quashed by Lady Justice Rafferty on 7 June 2019.
House of Commons
Drawing partly on the government agencies' investigations into lawbreaking up to that point, the House of Commons Culture, Media and Sport Select Committee released an interim report on Disinformation and ‘fake news’, stating that the largest donor in the Brexit campaign, Arron Banks, had "failed to satisfy" the Committee that his donations came from UK sources, and may have been financed by the Russian government. In February 2019, the Digital, Culture, Media and Sport select committee's 18-month investigation into disinformation and fake news published its final report, calling for and inquiry to establish, in relation to the referendum, “what actually happened with regard to foreign influence, disinformation, funding, voter manipulation, and the sharing of data, so that appropriate changes to the law can be made and lessons can be learnt for future elections and referenda”.
Some commentators opined that breaches of electoral law were unlikely to have had a substantive effect on the outcome of the EU Referendum. For example, in March 2018 The Economist asked
Does any of this matter beyond Westminster? If Vote Leave is found to have breached the rules, that will support the notion that Leavers played fast and loose in 2016. Yet Remainers spent a lot more, and benefited from a government leaflet costing £9m that openly backed their cause. On the evidence so far, it is hard to conclude that the 52:48 result was changed by digital marketing, however cleverly done.
- Timeline of Russian interference in the 2016 United States elections
- Timeline of investigations into Trump and Russia (2017)
- Timeline of investigations into Trump and Russia (January–June 2018)
- Timeline of investigations into Trump and Russia (July–December 2018)
- Timeline of investigations into Trump and Russia (2019)
- R (Miller) v Secretary of State for Exiting the European Union
- Jamie Doward, Carole Cadwalladr and Alice Gibbs, 'Watchdog to launch inquiry into misuse of data in politics', The Observer (4 March 2017).
- Carole Cadwalladr, 'The great British Brexit robbery: how our democracy was hijacked', The Observer (Sunday 7 May 2017).
- Information Commissioner's Office, 'Investigation into the use of data analytics in political campaigns: Investigation update' (11 July 2018).
- Elizabeth Denham, 'The Information Commissioner opens a formal investigation into the use of data analytics for political purposes', Information Commissioner's Blog (17 May 2017).
- Sunny Hundal, 'Investigation launched into the 'secret world' of how millionaires used Facebook and other data to push Brexit', OpenDemocracy (17 May 2017).
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- Information Commissioner's Office, 'Democracy disrupted? Personal information and political influence' (11 July 2018).
- Judge Wikeley, 'The Upper Tribunal (Administrative Appeals Chamber) Upper Tribnal Case No. GIA/2069/2018; Parties: United Kingdom Independence Party Ltd (Appellant) and The Information Commissioner (First Respondent)' (18 February 2019).
- James Cusick, 'New evidence that LibDems sold voter data for £100,000 held back till after election', OpenDemocracy (13 November 2019).
- 'DATA PROTECTION ACT 1998 SUPERVISORY POWERS OF THE INFORMATION COMMISSIONER MONETARY PENALTY NOTICE (19 March 2019).
- 'Vote Leave fined over thousands of unsolicited texts', BBC News (19 March 2019).
- 'EU campaign firm fined for sending spam texts' (11 May 2016).
- Information Commissioner's Office, 'Information Rights Report' (quarter 1, 2016/17), p. 30.
- Information Commissioner's Office, 'Data Protection Act 1998: Supervisory Powers of the Information Commissioner monetary Penalty Notice' (1 February 2019).
- Information Commissioner's Office, 'Data Protection Act 1998: Supervisory Powers of the Information Commissioner Monetary Penalty Notice' (1 February 2019).
- Information Commissioner's Office, 'Data Protection Act 1998: Supervisory Powers of the Information Commissioner Monetary Penalty Notice' (1 February 2019).
- Information Commissioner's Office, 'Data Protection Act 1998: Supervisory Powers of the Information Commissioner Enforcement Notice' (1 February 2019).
- Information Commissioner's Office, 'ICO serves Enforcement Notice on SCL Elections Ltd over inadequate response to subject access request' (5 May 2018).
- Information Commissioner's Office, 'Data Protection Act 1998: Supervisory Powers of the Information Commissioner Enforcement Notice' (4 May 2018).
- Information Commissioner's Office, 'Enforcement Notice: The Data Protection Act 2018, Part 6, Section 149' (24 October 2018).
- Information Commissioner's Office, 'ICO issues maximum £500,000 fine to Facebook for failing to protect users’ personal information' (25 October 2018).
- Information Commissioner's Office, 'Data Protection Act 1998: Supervisory Powers of the Information Commissioner, Monetary Penalty Notice' (24 October 2018).
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- Election watchdog probes spending by EU referendum campaign groups, The Daily Telegraph (24 February 2017).
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- Electoral Commission, 'Liberal Democrats fined £18,000 for breaches of campaign finance rules' (19 December 2019).
- Electoral Commission, 'Report on an investigation in respect of the Leave.EU Group Limited Concerning pre-poll transaction reports and the campaign spending return for the 2016 referendum on the UK’s membership of the European Union' (11 May 2018).
- Electoral Commission, 'Campaigners and political parties fined for breaching political finance rules' (15 May 2018).
- Electoral Commission, 'Report of an investigation in respect of: Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain' (17 July 2018).
- 'DUP's pro-Brexit advertising money was 'permissible'', BBC News (6 November 2018).
- O'Toole, Fintan (16 May 2017) "What connects Brexit, the DUP, dark money and a Saudi prince?". The Irish Times.
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- Jennifer Rankin, 'Ukip group fails in bid to restore EU funding amid fraud inquiry', The Guardian (9 February 2018).
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- Holly Watt, Electoral Commission to investigate Arron Banks' Brexit donations: Watchdog to consider whether leave campaigner broke campaign finance rules in run-up to EU referendum, The Guardian (1 November 2017).
- Electoral Commission, 'Report on investigation into payments made to Better for the Country and Leave.EU' (1 November 2018).
- Henry Mance, Arron Banks investigated for Brexit campaign spending, Financial Times (1 November 2017).
- House of Commons Digital, Culture, Media and Sport Committee, 'Disinformation and ‘fake news’: Final Report', Eighth Report of Session 2017–19 [HC 1791] (House of Commons, 18 February 2019).
- David Pegg, 'Met to take no further action over Leave.EU spending breaches', The Guardian (13 September 2019).
- 'UPDATE: lnvestigation into Leave.EU' (13 September 2019).
- PA Media, 'No evidence Leave. EU and Arron Banks broke law, says crime agency', The Guardian (24 September 2019).
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