Public authorities’ powers to monitor and publish – the EU referendum case

13 Nov 2019

Public Law and Judicial Review

The Court of Appeal has dismissed a judicial review claim by Vote Leave that the Electoral Commission acted unlawfully in making and publishing a report of its investigation into whether Vote Leave and others had broken campaign finance rules in relation to the EU Referendum.

Vote Leave had complained that the Electoral Commission was a statutory body and that there was no provision conferring power on it to make and publish a report into its investigations. Vote Leave had also complained that the Electoral Commission’s function of monitoring a referendum ended with the holding of that referendum.

The Court of Appeal rejected these complaints. While recognising that there was no statutory provision expressly empowering the Electoral Commission to make or publish reports of its investigations, the Court of Appeal held that that was incidental to the Commission’s performance of its investigatory functions.

Furthermore, the Commission was not confined when monitoring a referendum to just the period of the referendum.

Two principles emerge from the judgment:

  • That where a public authority does not have express power to make and publish reports on its activities, such reports may nevertheless be incidental to its express powers on the basis that ‘there is an important public interest in public bodies with an investigatory function being as open as possible about inquiries which they have conducted.’
  • That the monitoring functions of a public body into a matter − in this case, the Electoral Commission’s monitoring of a referendum − may continue after the end of the period in which those matters occur.

You can find a copy of the judgment here

Philip Coppel QC from Cornerstone Barristers and Ravi Mehta from Blackstone Chambers acted for the Electoral Commission.
Timothy Straker QC of 4-5 Gray’s Inn Square appeared for Vote Leave Ltd.