The observations and opinions of a retired magistrate. Also available my magistrate`s diary at https://amagistratesdiaries.blogspot.com/
Saturday 30 November 2019
COMMENT CAN BE A TECHIE PROBLEM
It has come to my notice that accessing the comment feature via "no comments", itself a bit of a misnomer, can be impossible with some browsers; certainly I know that readers using Safari have had this problem. My advice is to use Chrome for this purpose if others fail.
Thursday 28 November 2019
SENTENCING NEEDS UPDATING
Monday 25 November 2019
THE WRONG SIDE IN MITIGATION
The tragic case of Harry Dunn, the motor cyclist who was killed by the wife of an American diplomat who was driving on the wrong side of the road has faded from the headlines but what will not have faded from the memories of all British drivers who have driven their own cars abroad is the fleeting moment when they too have momentarily dropped their concentration and found themselves on the wrong side of the road in continental Europe. It has happened to me and I got away with it. The demands from many quarters that she be extradited to face justice reminded me of a case I recollected from 2013.
« Je conduis habituellement à droite donc ma culpabilité dans cette affaire de conduite imprudente est moindre. » could have been the words of Alexis Fleury of Orleans in the Appeal Court six years ago. Or in English..........“I usually drive on the right so my
culpability in this matter of careless driving is lessened”. And their Lordships agreed with him.
Whilst the principle and logic of the decision is
immediately comprehended where does it end? If I were a resident of Outer
Eurasia where use of a mobile phone whilst driving is not prohibited would that
lesson my culpability using one on the Outer Circle
Friday 22 November 2019
POLICE A DECADE ON
Exactly ten years ago I blogged as copied below. It seems that despite all that has happened since then the police have learned little of what the public expects. Even with hindsight I don`t believe that there is a willingness for police to learn and that is as dire for us, the public, as it is for them.
ACPO and proposed police restructuring
by TheJusticeofthePeace
@ 23. Nov. 2009. – 12:13:02
Sir Hugh Orde, president of ACPO wrote recently in
The Times with his recommendations for a restructuring of policing. He appears
to be taking not unnaturally a top down approach as opposed to giving
consideration to the requirements at a local level where the vast majority of
the population is not a victim or terrorism or cross border organised crime. He
criticises, "people who are claiming to represent communities" who
suggest that more police on the beat is what is required by offering ridiculous
statistics about a patrolling officer rarely coming across a burglary being
committed. In this statement he reveals his apparent indifference to the
concern of local communities that above all they want assurances that their
properties will not be burgled per se and that officers seen to be patrolling
are a deterrent to criminal activity which might impinge upon their desire for
a quiet peaceful life. He continues in the same manner when he says that
control of police and democratic policies cannot co-exist. This subject is
surely worthy of debate rather than an authoritarian denial of its practicability
.
The original principles of Robert Peel were that
police patrol to prevent crime and disorder and that they must have the
public`s approval and willing co-operation.
If Sir Hugh cannot persuade us that he and his
colleagues can succeed with prevention as the prime objective they are unlikely
to continue to carry the public with them on the other two requirements as is becoming
apparent almost weekly.
Monday 18 November 2019
A STAIN ON OUR CIVILISATION
But such pre determination of success is not confined to rape. As magistrates and lawyers participating in the lower court we all know only too well the policy of undercharging by the CPS is all too common particularly in charges of assault and assault by beating where an either way charge would have thought to have been the expected outcome once the details have been heard. A once fair justice system with a level playing field and equality of arms in the fact of legal representation for all irrespective of means is now a pale shadow of its previous high moral and legal standing amongst the nations of the world. This is a stain upon our civilisation from which I fear we will never be cleansed nor will we ever recover especially if this country falls for the mirages presented by a Marxist antisemite with his sights on 10 Downing Street and pseudo liberals in our midst falling for his smoothly spoken smokescreen of togetherness.
Wednesday 13 November 2019
APPEAL BETWEEN VOTE LEAVE LTD Appellant And THE ELECTORAL COMMISSION Respondant 12th November 2019
Neutral Citation Number: [2019] EWCA Civ 1938
Case No: C1/2019/0150
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the High Court (Queen’s Bench Division)
Administrative Court
Mr Justice Swift
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12/11/2019
Before :
LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE SINGH and
LADY JUSTICE NICOLA DAVIES
- - - - - - - - - - - - - - - - - - - - -
Between :
VOTE LEAVE LTD
Appellant
- and -
THE ELECTORAL COMMISSION
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Timothy Straker QC and Mr James Tumbridge (respectively instructed by, and of, Venner Shipley) for the Appellant
Mr Philip Coppel QC and Mr Ravi Mehta (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 3rd October 2019
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
Lord Justice Underhill:
INTRODUCTORY
1. The Appellant, Vote Leave Ltd (“VL”), was the designated lead campaigner for the “leave” outcome in the 2016 EU referendum. The Electoral Commission, which is the Respondent, has responsibility under the Political Parties, Elections and Referendums Act 2000 (“PPERA”) for, among other things, monitoring and ensuring compliance with the statutory rules which apply to the financing of referendum campaigns. Non-compliance may constitute an offence. I give details of the relevant statutory provisions below.
2. In November 2017 the Commission opened an investigation under Part X of PPERA into related allegations of contraventions of those rules by various persons, including VL. The details of the matters investigated are not material for the purpose of this appeal: broadly speaking, they concern payments made to a Canadian data analytics firm called Aggregate IQ (“AIQ”) for campaign services during the referendum campaign and how those payments were reported to the Commission.
3. On 17 July 2018 the Commission served two Notices (dated 16 July) under paragraph 6 (5) of Schedule 19C of PPERA notifying VL of its decision to impose “variable monetary penalties” (in ordinary language, fines) on it in respect of four offences. The fines for the first three offences, covered by what I will call the first Notice, totalled £41,000; and the fine for the fourth offence, covered by the second Notice, was a further £20,000. On the same date it served Notices on two other leave campaigners – Mr Darren Grimes, who ran an unincorporated association BeLeave; and Mr David Banks, the responsible person for an organisation called Veterans for Britain – in respect of related offences.
4. The same day the Commission published on its website a document entitled “Report of an Investigation in respect of Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain, concerning Campaign Funding and Spending for the 2016 Referendum on the UK’s Membership of the EU” (“the Report”). The Report runs to 38 pages and gives an account of the Commission’s investigation and findings, culminating in its determinations as to the offences for which VL, Mr Grimes and Mr Banks were fined.
5. On 8 October 2018 VL applied to the High Court for permission to apply for judicial review of “the making and publishing” of the Report. Mr Grimes and Veterans for Britain were named as interested parties. It is important to emphasise at this stage that VL’s challenge was not to the Commission’s decision that it had committed the offences for which it was fined, which was, as noted below, the subject of a separate appeal. Rather, the objection was to the publication of the Report: it was and is VL’s case that the Commission had no power under PPERA to publish such a report.
6. On 20 November 2018 Yip J refused permission to apply for judicial review. VL renewed its application at an oral hearing before Swift J on 15 January 2019 but he too refused permission.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
7. VL applied for permission to appeal against Swift J’s decision. By an order dated 4 June 2019 Hickinbottom LJ granted permission to apply for judicial review and directed, pursuant to CPR 58.5 (5) and (6), that the application be retained in this Court.
8. Before us VL has been represented by Mr Timothy Straker QC, leading Mr James Tumbridge of Venner Shipley. The Commission has been represented by Mr Philip Coppel QC and Mr Ravi Mehta. The interested parties did not appear and were not represented.
9. It is convenient to mention at this stage two pieces of related litigation.
(1) A person who is fined by the Commission under the provisions in question has a right to appeal to the County Court. Originally, both VL and Mr Grimes appealed against the fines imposed on them, and the two appeals were directed to be managed together. On 29 March 2019 VL discontinued its appeal, but Mr Grimes proceeded. By a decision dated 19 July HH Judge Dight CBE, sitting in the Central London County Court (Mayor’s and City of London), allowed Mr Grimes’s appeal on a particular basis which I need not explain save to say that it depended on the procedural consequences of the precise formal relationship between him and BeLeave.
(2) Secondly, in 2017 the Commission decided not to investigate whether payments made by VL to BeLeave, from which AIQ’s bills were paid, were in breach of the applicable limits on VL’s campaign spending. A challenge to the lawfulness of that decision was upheld by the Divisional Court in March 2018, but on appeal its decision was set aside by this Court: see R (Good Law Project) v The Electoral Commission [2019] EWCA Civ 1567.
Mr Straker appeared at some points in his submissions to be suggesting that those two decisions called into question the basis of the Commission’s decision to fine VL. Mr Coppel disputed that, pointing out that both appeals were decided on grounds which had no application to the basis on which the fines with which we are concerned were imposed. So far as I can see, that is correct, but it is unnecessary to consider the point because the correctness of the decision to fine VL is not material to the issue before us: that issue is limited to whether the publication of the Report relating to that decision was within the Commission’s statutory powers.
THE STATUTORY BACKGROUND
10. Part I of PPERA is headed “the Electoral Commission”. Section 1 provides for the establishment of the Commission. Sub-section (6) incorporates Schedule 1, which contains more detailed provisions about the Commission. Paragraph 2 of Schedule 1 reads:
“The Commission may do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions.”
That language is substantially the same (apart from the prohibition on the borrowing of money) as the well-known terms of section 111 (1) of the Local Government Act 1972, which empowers local authorities “to do any thing … which is calculated to facilitate,
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
or is incidental or conducive to, the discharge of any of their functions”. That provision codifies what had long been recognised to be the position at common law.
11. Sections 5-13 are headed “Commission’s General Functions”. I need not set these out, but I should note that sections 5 and 6 impose particular duties on the Commission to make reports – under section 5 to make and publish a report on the administration of each election or referendum, and under section 6 to submit reports from time to time to the Secretary of State on various specified matters. In this connection I should refer also to paragraph 20 of Schedule 1, which requires the Commission to report annually to Parliament about the performance of its functions in the year in question and to publish that report.
12. Part VII contains provisions regulating the conduct of referendums. For our purposes I need note only that they include, in section 118, limits on the amounts that may be spent by “permitted participants” and, in section 122, requirements on permitted participants to submit returns of referendum expenses incurred by them. Contravention of those requirements is an offence: see section 118 (2) and section 122 (4). Two of the offences for which VL was fined were under section 122 (4) and one under section 118 (2).
13. Part X of the Act is headed “Miscellaneous and General”. Sections 145-148 are headed “Enforcement of Act”. The sections relevant for our purposes are 145-147. I take them in turn.
14. Section 145 is headed “Duties of Commission with respect to … compliance with controls imposed by the Act etc”. Sub-section (1) reads, so far as material:
“The Commission must monitor, and take all reasonable steps to secure, compliance with –
(a) the restrictions and other requirements imposed by or by virtue of –
(i) …
(ii) Parts 3 to 7, and
(iii) sections 143 and 148; and
(b) …”
15. Section 146 is headed “Investigatory powers of Commission” and gives effect to Schedule 19B. The Schedule contains detailed provisions about the conduct of investigations by the Commission. These include powers to require the production of documents. Paragraph 13 (1) provides that failure, without reasonable excuse, to comply with any requirement imposed under the Schedule constitutes an offence. The fourth of the offences for which VL was fined was under paragraph 13 (1), for failure to produce documents by a specified date. Paragraph 15 requires the Commission to include in its annual report to Parliament (see para. 11 above) information about the use made by it of its investigatory powers during the year in question.
16. Section 147 (which was substituted with effect from 1 December 2010, by the Political Parties and Elections Act 2009) is headed “Civil Sanctions” and reads:
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
“Schedule 19C makes provision for civil sanctions in relation to–
(a) the commission of offences under this Act;
(b) the contravention of restrictions or requirements imposed by or by virtue of this Act.”
It was under the civil sanctions regime established by section 147 and Schedule 19C that the Commission imposed on VL the fines which gave rise to the Report. I need not attempt a full summary of the provisions of the Schedule, but the following points are relevant for our purposes:
(1) The fines were imposed under paragraph 5, which empowers the Commission to impose one or more “discretionary requirements” on a person who it is satisfied beyond reasonable doubt has committed a prescribed offence. Such discretionary requirements include, by sub-paragraph (5) (a), “a requirement to pay a monetary penalty to the Commission of such amount as the Commission may determine”, elsewhere referred to as a “variable monetary penalty” – in other words, as I have said, a fine.
(2) Where the Commission proposes to impose a discretionary requirement it is required by paragraph 6 (1) to give notice to that effect (sometimes referred to as an “initial notice”) to the person in question, who is entitled (by sub-paragraph (2)) to make written representations and objections in response.
(3) Paragraph 6 (5) provides that where the Commission decides to impose a discretionary requirement it must serve a notice on the person in question specifying the requirement. The notice is the actual instrument by which the requirement – in this case, the fine – is imposed. By paragraph 7 (3) such a notice must: “... include information as to —
(a) the grounds for imposing the discretionary requirement;
(b) where the discretionary requirement is a variable monetary penalty —
(i) how payment may be made,
(ii) the period within which payment must be made, and
(iii) any early payment discounts or late payment penalties;
(c) rights of appeal;
(d) the consequences of non-compliance.”
(4) Paragraph 6 (6)-(7) provides for a right of appeal to (in England and Wales) the County Court.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
(5) Paragraph 25 requires the Commission to publish guidance as to, among other things, “the sanctions (including criminal sanctions”) that may be imposed on a person who commits an offence under the Act, including guidance about its use of the power to impose discretionary requirements.
THE NOTICES AND THE REPORT
17. Both the paragraph 6 (5) Notices served on VL follow the same format. Section 1 contains various preliminary and formal matters, including the notification of the right of appeal required by paragraph 7 (3) (c) of Schedule 19C. Section 2 is headed “Grounds to Impose the Penalty”. This follows a systematic structure reflecting the matters that the Commission had to determine. I need not attempt a detailed summary. Broadly, however, it begins with an explanation of why the Commission is satisfied (to the criminal standard) that each offence has been committed, identifying the evidence relied on and giving reasoned conclusions on disputed points; proceeds to give reasons for its decision to propose a fine, as notified in the initial notice; considers VL’s representations in response to the initial notice; and reaches conclusions on the appropriate level of fine. In the first Notice section 2 runs to some 34 pages, and in the second Notice it covers seven.
18. We were not shown the Notices in the cases of Mr Grimes, BeLeave and Veterans for Britain; but no doubt they followed the same structure.
19. The Report was published in accordance with paragraphs B.14-16 of Appendix B to the Commission’s Enforcement Policy. Paragraph B.14 says that once an investigation is concluded the Commission will publish the outcome on its website and lists the minimum information which will appear. Paragraph B.16 says that the Commission “may also produce a more detailed investigation report and/or issue a media statement where this will further our enforcement objectives and it is in the public interest to do so”.
20. The Report is evidently a “more detailed investigation report” of the kind identified in paragraph B.16. What it does is to present in a single document the findings of the Commission’s investigation about the payments made to AIQ and how they had been treated in the various returns. This necessarily involved a different structure from that adopted in the Notices, which were concerned only with the conduct of the person on whom the fine in question was imposed. However, the principal sections of the Report, sections 3 and 4 (“The Investigation” and “The Investigation Findings”), cover the same factual ground as section 2 in the Notices and, unsurprisingly, are substantially similar in their content. Neither party attempted a detailed comparison, but Mr Coppel in his skeleton argument identified a number of passages in the Report which were essentially cut-and-pasted from the VL Notices. Mr Straker said that the section of the Report setting out the history of the investigation was more elaborate than its treatment in the Notices, and that the circumstances of the creation of BeLeave were dealt with rather differently; but we were not taken to the passages in question and he did not submit that the differences were of fundamental importance or that there was any important material in the Report that did not reflect equivalent material in the Notices, even if not identically expressed.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
THE ISSUE: DISCUSSION AND CONCLUSION
21. It was common ground before us that there is no provision in PPERA which expressly empowers the Commission to make or publish a report of the kind which was made in the present case – that is, a report setting out the result of an investigation under Schedule 19B which culminated in findings of offences under the Act and the imposition of fines for those offences under section 19C. Mr Straker submitted that such a power could not be conferred by implication. Where it was intended that the Commission should make or publish reports the Act said so in terms: see, e.g. sections 5, 6 and 20. The publication of a report of this kind was liable to have serious prejudicial effects on the entities or individuals who were the subject of its findings because of the press publicity which it would attract. He submitted that that had indeed been the effect in the present case: he referred us to passages in a witness statement of Mr Patrick Moynihan, a director of VL, which showed the degree of hostile – he says unfairly hostile – publicity which VL and individuals associated with it had received following the publication of the Report. Its publication was accordingly in substance a further sanction, in the nature of a public reprimand, over and above the code of sanctions provided for in Schedule 19C and thus unaccompanied by any right of appeal; that was inconsistent with the scheme of the Act and unlawful. He referred in this context to what he said was the principle that returning officers were not entitled to take any step beyond what the statute expressly provides for: he referred to R (De Beer) v Returning Officer for the London Borough of Harrow [2002] EWHC 670 (Admin) and Begum v Returning Officer for the London Borough of Tower Hamlets [2006] EWCA Civ 733, though he did not take us to them in his oral submissions. He said the same approach should be taken to the powers of the Electoral Commission in what is inevitably a highly sensitive area of law.
22. I do not accept that submission. In my view the publication of the Report was within the Commission’s powers because it was incidental to the carrying out of its enforcement functions under Part X of PPERA and was accordingly authorised by paragraph 2 of Schedule 1 of the Act.
23. I take first the functions in question. As noted above, sections 145-148 of PPERA fall under the heading “Enforcement of Act”. Section 145 (1) requires the Commission to “monitor, and take all reasonable steps to secure, compliance with” various requirements of the Act, including those of Part 7. Mr Straker submitted that the publication of the Report could not be regarded as “incidental to” the function of “monitoring” or “securing” compliance: as a matter of ordinary language, those terms are directed at the conduct of participants in a referendum campaign as it happens and not to investigating or punishing non-compliance subsequently. He might perhaps be right about “monitoring” (though para. 37 of Singh LJ’s judgment has given me pause), but I regard his approach to “securing compliance” as over-literal: since the knowledge that non-compliance may be investigated and punished is an important incentive to compliance, proceeding with such investigation and punishment, albeit after the event, can naturally be described as a step to secure compliance. However, even if that is debatable the point does not depend on the construction of those words alone. Section 145 must be read with sections 146 and 147 and with Schedules 19B and 19C to which they give effect. Whether those provisions are regarded as fleshing out the general terms of section 145 (1) or as supplementing them, they form part of a package of enforcement functions conferred on the Commission by Part X.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
24. Making a public report on how those functions have been performed in a particular case can in my judgment properly be described as “incidental” to their carrying out. Although that seems to me a natural description as a matter of ordinary language, in so far as there is any ambiguity I should say that it also seems to me the right construction as a matter of policy. There is an important public interest in public bodies with an investigatory function being as open as possible about inquiries which they have conducted: for a recent affirmation of that principle, albeit in a different context, see para. 1 of the judgment of Lord Mance in Kennedy v Charity Commission [2015] UKSC 20, [2015] AC 455 (pp. 488-9). That value is particularly important in the case of investigations carried out by the Electoral Commission, both because of the centrality of its functions to our democracy and because they may, as here, result in findings that criminal offences have been committed: indeed the Commission’s role under Schedule 19C is quasi-judicial. That being so, it is highly desirable – and, I believe, in no way problematic – that the “incidental powers” provision in PPERA should be construed in a way which allows the Commission to publish, in whatever form seems appropriate to it, the results of its investigations (so long, of course, as that is done in a reasonable and responsible manner). It is clear from the terms of the Commission’s Enforcement Guidance (see para. 19 above) that it believes that the publication of detailed investigation reports will sometimes be in the public interest; and that is in my view plainly right.
25. It might be said that such publication is unnecessary because notices under paragraph 6 (5), which Mr Straker accepted were public documents, should contain all the information necessary to justify the determinations which they record, and the consequent “discretionary requirements”, and there is no need to publish anything else. But even if that is sometimes so there will certainly be cases where the Commission reasonably regards it as important to report the results of its investigations in some other form. The present case is a good example: it would not be straightforward for a member of the public to gain a complete picture of the investigation from reading several individual Notices, all of which only tell part of the story, and there is obvious value in a single report covering the same ground in a comprehensive and comprehensible way.
26. If anything, the fact that the Notices are public documents is a point against Mr Straker’s submissions, since it would seem to render much of VL’s objection to the publication of the Report rather unreal. Mr Straker accepted that it would have been within the Commission’s power to announce on its website that it had issued the paragraph 6 (5) Notices and/or to issue a press release to that effect, in either case attaching or providing links to the full texts: presumably, though he did not expressly acknowledge this, the power to do so would derive from paragraph 1 (2). It might be thought that such publication would be just as damaging and prejudicial to VL as the publication of the Report is said to have been, since they contain substantially the same material (see para. 20 above). Mr Straker said that the Report was different because its contents would be understood to be unequivocal findings of fact, whereas the Notices contained explicit statements that VL could appeal and would accordingly be understood to be provisional, or qualified. I find that distinction unconvincing. Although the Report presents the material in a more accessible form, it is fanciful to suppose that the publication of a press release attaching the Notices would not have attracted much of the same attention.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
27. It follows from the foregoing that I do not accept Mr Straker’s submission that the publication of the Report constituted a distinct sanction falling outside the scheme provided for by the Act. The only sanction on VL is the requirement to pay the fines. The Report is simply an explanation of the basis on which the decision to impose that sanction, and the sanctions on the other participants, was taken. It is ancillary to that decision and not a separate reprimand. It also follows that I see no need for the application of the principle which he said applied in construing the powers of returning officers.
28. Mr Straker attempted to draw some support for his case from the decision of Lord Bingham CJ in R v Liverpool County Council, ex p Baby Products Association [2000] LGR 171. In that case the council had issued a press release impugning the safety of a particular brand of baby-walker. Lord Bingham held that it had had no power to do so because the Consumer Protection Act 1987 and the regulations made under it provided for “a detailed and carefully crafted code” under which a local authority could issue suspension notices in respect of products which were suspected to be unsafe, subject to safeguards intended to protect the legitimate interests of manufacturers and suppliers; and the press release would have the same effect as such a suspension while circumventing those protections (see p. 178 c-g). I can see no analogy between that case and this. I have already rejected Mr Straker’s submission that the publication of the Report constituted a separate sanction and therefore that it subverted the code of sanctions provided for in PPERA. In fact, in one respect Lord Bingham’s judgment might be thought to give at least some support to the Commission’s case. At p. 178 b-c he records with apparent approval the concession of counsel for the claimant (Mr Michael Fordham) that “... generally speaking, it was open to local authorities to publish information relating to their activities, at any rate within their areas. Had the council issued suspension notices in accordance with section 14 of [the 1987 Act], that fact could (he accepted) have been announced to the public. Had the council initiated any criminal proceedings that fact, and the outcome of such proceedings, could similarly have been announced to the public. Sections 142(2)1 and 111(1) gave authority to make such announcements if statutory authority was needed2.”
The release by a local authority of a press release in the circumstances referred to seems to me reasonably analogous to the issue of the Report in this case; and it is accordingly of interest that Mr Fordham acknowledged, and Lord Bingham apparently accepted, that it would fall within the scope of section 111 (1) of the 1972 Act, which is, as noted above, in substantially the same terms as paragraph 2 of Schedule 1 to PPERA.
1 For completeness, I should note that section 142 (2) of the 1972 Act empowers a local authority to arrange for publication of information relating to its functions; but it is Mr Fordham’s reference to section 111 (1) which is relevant for our purposes.
2 I doubt whether by using the phrase (as recorded) “if statutory authority was needed” Mr Fordham was intending positively to suggest that statutory authority was not needed. But if he was I believe that that would be heterodox: see para. 31 below.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
29. Finally, I should say that the fact that PPERA contains some express provisions requiring the Commission to make reports of a particular kind – see para. 11 above – plainly does not demonstrate a statutory intention that it should have no power to publish any other kind of report.
30. The conclusion that the Commission was empowered to publish the Report by paragraph 2 of Schedule 1 to PPERA is sufficient to dispose of the claim. Mr Coppel in fact advanced three other bases on which the publication of the Report should be held to be within the Commission’s powers. I will address them briefly but not in the detail that would be appropriate if any of them was the basis of my decision.
31. The first was that the Commission had a power, simply by virtue of being a public body and without reference to paragraph 2 of Schedule 1, to inform the public about its activities. He referred us to the decision of the Divisional Court, comprising Donaldson LJ and Woolf J, in R v Director General of Fair Trading, ex p Taylor & Co Ltd [1981] ICR 362. In that case the applicant, which was an importer and distributor of toys and electrical goods, had a long history of contravening safety regulations. The Director General of Fair Trading in the exercise of his statutory powers requested it to give a written assurance that it would commit no further offences, and the assurance was given. He then issued a press release setting out the terms of the assurance. The applicant contended that he had no power to do so. The Court rejected that contention, Donaldson LJ saying, at p. 294 C-D:
“The Director General needs no statutory authority to speak and write about his work and about the misdeeds of others with which he is concerned in his work. Both the Director General and his office have full freedom of speech …”
That rather reads as if Donaldson LJ was proceeding on the basis that the power in question derived from the Director General’s status as a natural person, in which case it is immaterial for our purposes3. But if it was intended as a general proposition about the powers of a statutory corporation, I believe that it should be read as if he had said “the Director General needs no express statutory authority …”. It is in my view axiomatic that all the powers of such a corporation must derive from statute, though of course many of those powers may not be conferred express and will be enjoyed only because they are to be regarded as deriving from those functions that are so conferred. I certainly do not believe that the passage can be taken as authority for the proposition being advanced by Mr Coppel. Nor do I see what is gained by advancing the case in this way: paragraph 1 (2) gives the Commission all it needs.
32. Mr Coppel’s second alternative was to argue that section 145 (1) conferred express authority on the Commission to publish reports of investigations and fines because doing so was a “step” which would secure compliance with the statutory requirements by other participants in the future: they would, he said, constitute “case studies” which would both provide guidance and have a deterrent effect on potential offenders. I need not express a concluded view on this argument, but I have to say that I do not find it a natural reading of section 145 (1) and prefer to reach the same result by treating the power to report as incidental to the Commission’s express functions as explained above.
3 It may also be debatable whether it is correct, but there is no need for us to consider that.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
33. Finally, Mr Coppel relied on the Commission’s duties under the Freedom of Information Act 2000. In bare outline, his case was that the Commission’s “publication scheme”, adopted pursuant to section 19 of the Act, included among the classes of information which it published “decision making processes and records of decision” and “enforcement actions and sanctions”; and that since the Report contained information in those classes it was obliged by the Act to publish it even in the absence of any other statutory power. When I first read the papers I found that argument unpersuasive. Mr Coppel in his oral submissions strove to shift me from that first impression, but the exercise succeeded only to the extent of satisfying me that a proper treatment of the question would require a careful analysis, both of the statutory provisions and of the Commission’s publication scheme, of a kind which would not be justified in a case where it can have no bearing on the outcome.
34. I have not thought it necessary to review the judgment of Swift J. It was, as was entirely appropriate to an ex tempore judgment refusing permission to apply for judicial review, succinctly (though clearly) expressed. I can say, however, that his reasoning seems broadly to the same effect as mine, though I think he attached more weight than I have to Mr Coppel’s argument to which I refer at para. 32 above.
DISPOSAL
35. I would dismiss VL’s application for judicial review.
Lord Justice Singh:
36. I agree that this application for judicial review should be refused, essentially for the reasons given by Underhill LJ. I would like to add a few words of my own because of the importance of the issues.
37. At paragraph 23 Underhill LJ refers to section 145 (1) of PPERA, which requires the Commission to “monitor, and take all reasonable steps to secure, compliance with” various requirements of the Act, including those of Part 7. Speaking for myself I would have no difficulty in construing the word “monitor” in this context as including acts of investigation and scrutiny which take place afterwards and not only contemporaneously. This is particularly so in a statutory context in which the “referendum period” is narrowly defined: in the case of the EU referendum of 2016 it ended on the date of the referendum. In practice it might be simply unrealistic for the Commission to monitor events as they take place. In my view, a broader construction of the word “monitor” is appropriate in this context.
38. Secondly, I would like to associate myself in particular with what Underhill LJ says at paragraph 24 above in relation to the public interest in making inquiries such as that conducted by the Commission as open as possible. This is important not only in cases such as this, where an investigation led to the imposition of fines, but would be equally important in cases where the Commission does not find a breach of the rules or no sanction is imposed. In such cases the public would still have an important interest in knowing that the Commission had gone about its work properly and conscientiously.
Lady Justice Nicola Davies:
39. I agree with both judgments.
Case No: C1/2019/0150
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the High Court (Queen’s Bench Division)
Administrative Court
Mr Justice Swift
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12/11/2019
Before :
LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE SINGH and
LADY JUSTICE NICOLA DAVIES
- - - - - - - - - - - - - - - - - - - - -
Between :
VOTE LEAVE LTD
Appellant
- and -
THE ELECTORAL COMMISSION
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Timothy Straker QC and Mr James Tumbridge (respectively instructed by, and of, Venner Shipley) for the Appellant
Mr Philip Coppel QC and Mr Ravi Mehta (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 3rd October 2019
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
Lord Justice Underhill:
INTRODUCTORY
1. The Appellant, Vote Leave Ltd (“VL”), was the designated lead campaigner for the “leave” outcome in the 2016 EU referendum. The Electoral Commission, which is the Respondent, has responsibility under the Political Parties, Elections and Referendums Act 2000 (“PPERA”) for, among other things, monitoring and ensuring compliance with the statutory rules which apply to the financing of referendum campaigns. Non-compliance may constitute an offence. I give details of the relevant statutory provisions below.
2. In November 2017 the Commission opened an investigation under Part X of PPERA into related allegations of contraventions of those rules by various persons, including VL. The details of the matters investigated are not material for the purpose of this appeal: broadly speaking, they concern payments made to a Canadian data analytics firm called Aggregate IQ (“AIQ”) for campaign services during the referendum campaign and how those payments were reported to the Commission.
3. On 17 July 2018 the Commission served two Notices (dated 16 July) under paragraph 6 (5) of Schedule 19C of PPERA notifying VL of its decision to impose “variable monetary penalties” (in ordinary language, fines) on it in respect of four offences. The fines for the first three offences, covered by what I will call the first Notice, totalled £41,000; and the fine for the fourth offence, covered by the second Notice, was a further £20,000. On the same date it served Notices on two other leave campaigners – Mr Darren Grimes, who ran an unincorporated association BeLeave; and Mr David Banks, the responsible person for an organisation called Veterans for Britain – in respect of related offences.
4. The same day the Commission published on its website a document entitled “Report of an Investigation in respect of Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain, concerning Campaign Funding and Spending for the 2016 Referendum on the UK’s Membership of the EU” (“the Report”). The Report runs to 38 pages and gives an account of the Commission’s investigation and findings, culminating in its determinations as to the offences for which VL, Mr Grimes and Mr Banks were fined.
5. On 8 October 2018 VL applied to the High Court for permission to apply for judicial review of “the making and publishing” of the Report. Mr Grimes and Veterans for Britain were named as interested parties. It is important to emphasise at this stage that VL’s challenge was not to the Commission’s decision that it had committed the offences for which it was fined, which was, as noted below, the subject of a separate appeal. Rather, the objection was to the publication of the Report: it was and is VL’s case that the Commission had no power under PPERA to publish such a report.
6. On 20 November 2018 Yip J refused permission to apply for judicial review. VL renewed its application at an oral hearing before Swift J on 15 January 2019 but he too refused permission.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
7. VL applied for permission to appeal against Swift J’s decision. By an order dated 4 June 2019 Hickinbottom LJ granted permission to apply for judicial review and directed, pursuant to CPR 58.5 (5) and (6), that the application be retained in this Court.
8. Before us VL has been represented by Mr Timothy Straker QC, leading Mr James Tumbridge of Venner Shipley. The Commission has been represented by Mr Philip Coppel QC and Mr Ravi Mehta. The interested parties did not appear and were not represented.
9. It is convenient to mention at this stage two pieces of related litigation.
(1) A person who is fined by the Commission under the provisions in question has a right to appeal to the County Court. Originally, both VL and Mr Grimes appealed against the fines imposed on them, and the two appeals were directed to be managed together. On 29 March 2019 VL discontinued its appeal, but Mr Grimes proceeded. By a decision dated 19 July HH Judge Dight CBE, sitting in the Central London County Court (Mayor’s and City of London), allowed Mr Grimes’s appeal on a particular basis which I need not explain save to say that it depended on the procedural consequences of the precise formal relationship between him and BeLeave.
(2) Secondly, in 2017 the Commission decided not to investigate whether payments made by VL to BeLeave, from which AIQ’s bills were paid, were in breach of the applicable limits on VL’s campaign spending. A challenge to the lawfulness of that decision was upheld by the Divisional Court in March 2018, but on appeal its decision was set aside by this Court: see R (Good Law Project) v The Electoral Commission [2019] EWCA Civ 1567.
Mr Straker appeared at some points in his submissions to be suggesting that those two decisions called into question the basis of the Commission’s decision to fine VL. Mr Coppel disputed that, pointing out that both appeals were decided on grounds which had no application to the basis on which the fines with which we are concerned were imposed. So far as I can see, that is correct, but it is unnecessary to consider the point because the correctness of the decision to fine VL is not material to the issue before us: that issue is limited to whether the publication of the Report relating to that decision was within the Commission’s statutory powers.
THE STATUTORY BACKGROUND
10. Part I of PPERA is headed “the Electoral Commission”. Section 1 provides for the establishment of the Commission. Sub-section (6) incorporates Schedule 1, which contains more detailed provisions about the Commission. Paragraph 2 of Schedule 1 reads:
“The Commission may do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions.”
That language is substantially the same (apart from the prohibition on the borrowing of money) as the well-known terms of section 111 (1) of the Local Government Act 1972, which empowers local authorities “to do any thing … which is calculated to facilitate,
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
or is incidental or conducive to, the discharge of any of their functions”. That provision codifies what had long been recognised to be the position at common law.
11. Sections 5-13 are headed “Commission’s General Functions”. I need not set these out, but I should note that sections 5 and 6 impose particular duties on the Commission to make reports – under section 5 to make and publish a report on the administration of each election or referendum, and under section 6 to submit reports from time to time to the Secretary of State on various specified matters. In this connection I should refer also to paragraph 20 of Schedule 1, which requires the Commission to report annually to Parliament about the performance of its functions in the year in question and to publish that report.
12. Part VII contains provisions regulating the conduct of referendums. For our purposes I need note only that they include, in section 118, limits on the amounts that may be spent by “permitted participants” and, in section 122, requirements on permitted participants to submit returns of referendum expenses incurred by them. Contravention of those requirements is an offence: see section 118 (2) and section 122 (4). Two of the offences for which VL was fined were under section 122 (4) and one under section 118 (2).
13. Part X of the Act is headed “Miscellaneous and General”. Sections 145-148 are headed “Enforcement of Act”. The sections relevant for our purposes are 145-147. I take them in turn.
14. Section 145 is headed “Duties of Commission with respect to … compliance with controls imposed by the Act etc”. Sub-section (1) reads, so far as material:
“The Commission must monitor, and take all reasonable steps to secure, compliance with –
(a) the restrictions and other requirements imposed by or by virtue of –
(i) …
(ii) Parts 3 to 7, and
(iii) sections 143 and 148; and
(b) …”
15. Section 146 is headed “Investigatory powers of Commission” and gives effect to Schedule 19B. The Schedule contains detailed provisions about the conduct of investigations by the Commission. These include powers to require the production of documents. Paragraph 13 (1) provides that failure, without reasonable excuse, to comply with any requirement imposed under the Schedule constitutes an offence. The fourth of the offences for which VL was fined was under paragraph 13 (1), for failure to produce documents by a specified date. Paragraph 15 requires the Commission to include in its annual report to Parliament (see para. 11 above) information about the use made by it of its investigatory powers during the year in question.
16. Section 147 (which was substituted with effect from 1 December 2010, by the Political Parties and Elections Act 2009) is headed “Civil Sanctions” and reads:
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
“Schedule 19C makes provision for civil sanctions in relation to–
(a) the commission of offences under this Act;
(b) the contravention of restrictions or requirements imposed by or by virtue of this Act.”
It was under the civil sanctions regime established by section 147 and Schedule 19C that the Commission imposed on VL the fines which gave rise to the Report. I need not attempt a full summary of the provisions of the Schedule, but the following points are relevant for our purposes:
(1) The fines were imposed under paragraph 5, which empowers the Commission to impose one or more “discretionary requirements” on a person who it is satisfied beyond reasonable doubt has committed a prescribed offence. Such discretionary requirements include, by sub-paragraph (5) (a), “a requirement to pay a monetary penalty to the Commission of such amount as the Commission may determine”, elsewhere referred to as a “variable monetary penalty” – in other words, as I have said, a fine.
(2) Where the Commission proposes to impose a discretionary requirement it is required by paragraph 6 (1) to give notice to that effect (sometimes referred to as an “initial notice”) to the person in question, who is entitled (by sub-paragraph (2)) to make written representations and objections in response.
(3) Paragraph 6 (5) provides that where the Commission decides to impose a discretionary requirement it must serve a notice on the person in question specifying the requirement. The notice is the actual instrument by which the requirement – in this case, the fine – is imposed. By paragraph 7 (3) such a notice must: “... include information as to —
(a) the grounds for imposing the discretionary requirement;
(b) where the discretionary requirement is a variable monetary penalty —
(i) how payment may be made,
(ii) the period within which payment must be made, and
(iii) any early payment discounts or late payment penalties;
(c) rights of appeal;
(d) the consequences of non-compliance.”
(4) Paragraph 6 (6)-(7) provides for a right of appeal to (in England and Wales) the County Court.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
(5) Paragraph 25 requires the Commission to publish guidance as to, among other things, “the sanctions (including criminal sanctions”) that may be imposed on a person who commits an offence under the Act, including guidance about its use of the power to impose discretionary requirements.
THE NOTICES AND THE REPORT
17. Both the paragraph 6 (5) Notices served on VL follow the same format. Section 1 contains various preliminary and formal matters, including the notification of the right of appeal required by paragraph 7 (3) (c) of Schedule 19C. Section 2 is headed “Grounds to Impose the Penalty”. This follows a systematic structure reflecting the matters that the Commission had to determine. I need not attempt a detailed summary. Broadly, however, it begins with an explanation of why the Commission is satisfied (to the criminal standard) that each offence has been committed, identifying the evidence relied on and giving reasoned conclusions on disputed points; proceeds to give reasons for its decision to propose a fine, as notified in the initial notice; considers VL’s representations in response to the initial notice; and reaches conclusions on the appropriate level of fine. In the first Notice section 2 runs to some 34 pages, and in the second Notice it covers seven.
18. We were not shown the Notices in the cases of Mr Grimes, BeLeave and Veterans for Britain; but no doubt they followed the same structure.
19. The Report was published in accordance with paragraphs B.14-16 of Appendix B to the Commission’s Enforcement Policy. Paragraph B.14 says that once an investigation is concluded the Commission will publish the outcome on its website and lists the minimum information which will appear. Paragraph B.16 says that the Commission “may also produce a more detailed investigation report and/or issue a media statement where this will further our enforcement objectives and it is in the public interest to do so”.
20. The Report is evidently a “more detailed investigation report” of the kind identified in paragraph B.16. What it does is to present in a single document the findings of the Commission’s investigation about the payments made to AIQ and how they had been treated in the various returns. This necessarily involved a different structure from that adopted in the Notices, which were concerned only with the conduct of the person on whom the fine in question was imposed. However, the principal sections of the Report, sections 3 and 4 (“The Investigation” and “The Investigation Findings”), cover the same factual ground as section 2 in the Notices and, unsurprisingly, are substantially similar in their content. Neither party attempted a detailed comparison, but Mr Coppel in his skeleton argument identified a number of passages in the Report which were essentially cut-and-pasted from the VL Notices. Mr Straker said that the section of the Report setting out the history of the investigation was more elaborate than its treatment in the Notices, and that the circumstances of the creation of BeLeave were dealt with rather differently; but we were not taken to the passages in question and he did not submit that the differences were of fundamental importance or that there was any important material in the Report that did not reflect equivalent material in the Notices, even if not identically expressed.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
THE ISSUE: DISCUSSION AND CONCLUSION
21. It was common ground before us that there is no provision in PPERA which expressly empowers the Commission to make or publish a report of the kind which was made in the present case – that is, a report setting out the result of an investigation under Schedule 19B which culminated in findings of offences under the Act and the imposition of fines for those offences under section 19C. Mr Straker submitted that such a power could not be conferred by implication. Where it was intended that the Commission should make or publish reports the Act said so in terms: see, e.g. sections 5, 6 and 20. The publication of a report of this kind was liable to have serious prejudicial effects on the entities or individuals who were the subject of its findings because of the press publicity which it would attract. He submitted that that had indeed been the effect in the present case: he referred us to passages in a witness statement of Mr Patrick Moynihan, a director of VL, which showed the degree of hostile – he says unfairly hostile – publicity which VL and individuals associated with it had received following the publication of the Report. Its publication was accordingly in substance a further sanction, in the nature of a public reprimand, over and above the code of sanctions provided for in Schedule 19C and thus unaccompanied by any right of appeal; that was inconsistent with the scheme of the Act and unlawful. He referred in this context to what he said was the principle that returning officers were not entitled to take any step beyond what the statute expressly provides for: he referred to R (De Beer) v Returning Officer for the London Borough of Harrow [2002] EWHC 670 (Admin) and Begum v Returning Officer for the London Borough of Tower Hamlets [2006] EWCA Civ 733, though he did not take us to them in his oral submissions. He said the same approach should be taken to the powers of the Electoral Commission in what is inevitably a highly sensitive area of law.
22. I do not accept that submission. In my view the publication of the Report was within the Commission’s powers because it was incidental to the carrying out of its enforcement functions under Part X of PPERA and was accordingly authorised by paragraph 2 of Schedule 1 of the Act.
23. I take first the functions in question. As noted above, sections 145-148 of PPERA fall under the heading “Enforcement of Act”. Section 145 (1) requires the Commission to “monitor, and take all reasonable steps to secure, compliance with” various requirements of the Act, including those of Part 7. Mr Straker submitted that the publication of the Report could not be regarded as “incidental to” the function of “monitoring” or “securing” compliance: as a matter of ordinary language, those terms are directed at the conduct of participants in a referendum campaign as it happens and not to investigating or punishing non-compliance subsequently. He might perhaps be right about “monitoring” (though para. 37 of Singh LJ’s judgment has given me pause), but I regard his approach to “securing compliance” as over-literal: since the knowledge that non-compliance may be investigated and punished is an important incentive to compliance, proceeding with such investigation and punishment, albeit after the event, can naturally be described as a step to secure compliance. However, even if that is debatable the point does not depend on the construction of those words alone. Section 145 must be read with sections 146 and 147 and with Schedules 19B and 19C to which they give effect. Whether those provisions are regarded as fleshing out the general terms of section 145 (1) or as supplementing them, they form part of a package of enforcement functions conferred on the Commission by Part X.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
24. Making a public report on how those functions have been performed in a particular case can in my judgment properly be described as “incidental” to their carrying out. Although that seems to me a natural description as a matter of ordinary language, in so far as there is any ambiguity I should say that it also seems to me the right construction as a matter of policy. There is an important public interest in public bodies with an investigatory function being as open as possible about inquiries which they have conducted: for a recent affirmation of that principle, albeit in a different context, see para. 1 of the judgment of Lord Mance in Kennedy v Charity Commission [2015] UKSC 20, [2015] AC 455 (pp. 488-9). That value is particularly important in the case of investigations carried out by the Electoral Commission, both because of the centrality of its functions to our democracy and because they may, as here, result in findings that criminal offences have been committed: indeed the Commission’s role under Schedule 19C is quasi-judicial. That being so, it is highly desirable – and, I believe, in no way problematic – that the “incidental powers” provision in PPERA should be construed in a way which allows the Commission to publish, in whatever form seems appropriate to it, the results of its investigations (so long, of course, as that is done in a reasonable and responsible manner). It is clear from the terms of the Commission’s Enforcement Guidance (see para. 19 above) that it believes that the publication of detailed investigation reports will sometimes be in the public interest; and that is in my view plainly right.
25. It might be said that such publication is unnecessary because notices under paragraph 6 (5), which Mr Straker accepted were public documents, should contain all the information necessary to justify the determinations which they record, and the consequent “discretionary requirements”, and there is no need to publish anything else. But even if that is sometimes so there will certainly be cases where the Commission reasonably regards it as important to report the results of its investigations in some other form. The present case is a good example: it would not be straightforward for a member of the public to gain a complete picture of the investigation from reading several individual Notices, all of which only tell part of the story, and there is obvious value in a single report covering the same ground in a comprehensive and comprehensible way.
26. If anything, the fact that the Notices are public documents is a point against Mr Straker’s submissions, since it would seem to render much of VL’s objection to the publication of the Report rather unreal. Mr Straker accepted that it would have been within the Commission’s power to announce on its website that it had issued the paragraph 6 (5) Notices and/or to issue a press release to that effect, in either case attaching or providing links to the full texts: presumably, though he did not expressly acknowledge this, the power to do so would derive from paragraph 1 (2). It might be thought that such publication would be just as damaging and prejudicial to VL as the publication of the Report is said to have been, since they contain substantially the same material (see para. 20 above). Mr Straker said that the Report was different because its contents would be understood to be unequivocal findings of fact, whereas the Notices contained explicit statements that VL could appeal and would accordingly be understood to be provisional, or qualified. I find that distinction unconvincing. Although the Report presents the material in a more accessible form, it is fanciful to suppose that the publication of a press release attaching the Notices would not have attracted much of the same attention.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
27. It follows from the foregoing that I do not accept Mr Straker’s submission that the publication of the Report constituted a distinct sanction falling outside the scheme provided for by the Act. The only sanction on VL is the requirement to pay the fines. The Report is simply an explanation of the basis on which the decision to impose that sanction, and the sanctions on the other participants, was taken. It is ancillary to that decision and not a separate reprimand. It also follows that I see no need for the application of the principle which he said applied in construing the powers of returning officers.
28. Mr Straker attempted to draw some support for his case from the decision of Lord Bingham CJ in R v Liverpool County Council, ex p Baby Products Association [2000] LGR 171. In that case the council had issued a press release impugning the safety of a particular brand of baby-walker. Lord Bingham held that it had had no power to do so because the Consumer Protection Act 1987 and the regulations made under it provided for “a detailed and carefully crafted code” under which a local authority could issue suspension notices in respect of products which were suspected to be unsafe, subject to safeguards intended to protect the legitimate interests of manufacturers and suppliers; and the press release would have the same effect as such a suspension while circumventing those protections (see p. 178 c-g). I can see no analogy between that case and this. I have already rejected Mr Straker’s submission that the publication of the Report constituted a separate sanction and therefore that it subverted the code of sanctions provided for in PPERA. In fact, in one respect Lord Bingham’s judgment might be thought to give at least some support to the Commission’s case. At p. 178 b-c he records with apparent approval the concession of counsel for the claimant (Mr Michael Fordham) that “... generally speaking, it was open to local authorities to publish information relating to their activities, at any rate within their areas. Had the council issued suspension notices in accordance with section 14 of [the 1987 Act], that fact could (he accepted) have been announced to the public. Had the council initiated any criminal proceedings that fact, and the outcome of such proceedings, could similarly have been announced to the public. Sections 142(2)1 and 111(1) gave authority to make such announcements if statutory authority was needed2.”
The release by a local authority of a press release in the circumstances referred to seems to me reasonably analogous to the issue of the Report in this case; and it is accordingly of interest that Mr Fordham acknowledged, and Lord Bingham apparently accepted, that it would fall within the scope of section 111 (1) of the 1972 Act, which is, as noted above, in substantially the same terms as paragraph 2 of Schedule 1 to PPERA.
1 For completeness, I should note that section 142 (2) of the 1972 Act empowers a local authority to arrange for publication of information relating to its functions; but it is Mr Fordham’s reference to section 111 (1) which is relevant for our purposes.
2 I doubt whether by using the phrase (as recorded) “if statutory authority was needed” Mr Fordham was intending positively to suggest that statutory authority was not needed. But if he was I believe that that would be heterodox: see para. 31 below.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
29. Finally, I should say that the fact that PPERA contains some express provisions requiring the Commission to make reports of a particular kind – see para. 11 above – plainly does not demonstrate a statutory intention that it should have no power to publish any other kind of report.
30. The conclusion that the Commission was empowered to publish the Report by paragraph 2 of Schedule 1 to PPERA is sufficient to dispose of the claim. Mr Coppel in fact advanced three other bases on which the publication of the Report should be held to be within the Commission’s powers. I will address them briefly but not in the detail that would be appropriate if any of them was the basis of my decision.
31. The first was that the Commission had a power, simply by virtue of being a public body and without reference to paragraph 2 of Schedule 1, to inform the public about its activities. He referred us to the decision of the Divisional Court, comprising Donaldson LJ and Woolf J, in R v Director General of Fair Trading, ex p Taylor & Co Ltd [1981] ICR 362. In that case the applicant, which was an importer and distributor of toys and electrical goods, had a long history of contravening safety regulations. The Director General of Fair Trading in the exercise of his statutory powers requested it to give a written assurance that it would commit no further offences, and the assurance was given. He then issued a press release setting out the terms of the assurance. The applicant contended that he had no power to do so. The Court rejected that contention, Donaldson LJ saying, at p. 294 C-D:
“The Director General needs no statutory authority to speak and write about his work and about the misdeeds of others with which he is concerned in his work. Both the Director General and his office have full freedom of speech …”
That rather reads as if Donaldson LJ was proceeding on the basis that the power in question derived from the Director General’s status as a natural person, in which case it is immaterial for our purposes3. But if it was intended as a general proposition about the powers of a statutory corporation, I believe that it should be read as if he had said “the Director General needs no express statutory authority …”. It is in my view axiomatic that all the powers of such a corporation must derive from statute, though of course many of those powers may not be conferred express and will be enjoyed only because they are to be regarded as deriving from those functions that are so conferred. I certainly do not believe that the passage can be taken as authority for the proposition being advanced by Mr Coppel. Nor do I see what is gained by advancing the case in this way: paragraph 1 (2) gives the Commission all it needs.
32. Mr Coppel’s second alternative was to argue that section 145 (1) conferred express authority on the Commission to publish reports of investigations and fines because doing so was a “step” which would secure compliance with the statutory requirements by other participants in the future: they would, he said, constitute “case studies” which would both provide guidance and have a deterrent effect on potential offenders. I need not express a concluded view on this argument, but I have to say that I do not find it a natural reading of section 145 (1) and prefer to reach the same result by treating the power to report as incidental to the Commission’s express functions as explained above.
3 It may also be debatable whether it is correct, but there is no need for us to consider that.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
33. Finally, Mr Coppel relied on the Commission’s duties under the Freedom of Information Act 2000. In bare outline, his case was that the Commission’s “publication scheme”, adopted pursuant to section 19 of the Act, included among the classes of information which it published “decision making processes and records of decision” and “enforcement actions and sanctions”; and that since the Report contained information in those classes it was obliged by the Act to publish it even in the absence of any other statutory power. When I first read the papers I found that argument unpersuasive. Mr Coppel in his oral submissions strove to shift me from that first impression, but the exercise succeeded only to the extent of satisfying me that a proper treatment of the question would require a careful analysis, both of the statutory provisions and of the Commission’s publication scheme, of a kind which would not be justified in a case where it can have no bearing on the outcome.
34. I have not thought it necessary to review the judgment of Swift J. It was, as was entirely appropriate to an ex tempore judgment refusing permission to apply for judicial review, succinctly (though clearly) expressed. I can say, however, that his reasoning seems broadly to the same effect as mine, though I think he attached more weight than I have to Mr Coppel’s argument to which I refer at para. 32 above.
DISPOSAL
35. I would dismiss VL’s application for judicial review.
Lord Justice Singh:
36. I agree that this application for judicial review should be refused, essentially for the reasons given by Underhill LJ. I would like to add a few words of my own because of the importance of the issues.
37. At paragraph 23 Underhill LJ refers to section 145 (1) of PPERA, which requires the Commission to “monitor, and take all reasonable steps to secure, compliance with” various requirements of the Act, including those of Part 7. Speaking for myself I would have no difficulty in construing the word “monitor” in this context as including acts of investigation and scrutiny which take place afterwards and not only contemporaneously. This is particularly so in a statutory context in which the “referendum period” is narrowly defined: in the case of the EU referendum of 2016 it ended on the date of the referendum. In practice it might be simply unrealistic for the Commission to monitor events as they take place. In my view, a broader construction of the word “monitor” is appropriate in this context.
38. Secondly, I would like to associate myself in particular with what Underhill LJ says at paragraph 24 above in relation to the public interest in making inquiries such as that conducted by the Commission as open as possible. This is important not only in cases such as this, where an investigation led to the imposition of fines, but would be equally important in cases where the Commission does not find a breach of the rules or no sanction is imposed. In such cases the public would still have an important interest in knowing that the Commission had gone about its work properly and conscientiously.
Lady Justice Nicola Davies:
39. I agree with both judgments.
Tuesday 12 November 2019
MAGISTRATES AND MEDALS
"My late father in law served in Burma during WW2 and like many of his generation never talked about his experiences until a year or two before his death when my son, his grandson, was still in short trousers I suggested he give him his medals to show future generations that his grandpa was a hero like others who had been given no choice in 1939 but willingly accepted a citizen`s obligation to fight for his country. To my surprise he told me that he had never bothered to apply for them. He hadn`t won an MC or been mentioned in dispatches; he had just done his duty and didn`t expect any recognition. With some reluctance he wrote to the Ministry of Defence and the service medals were duly sent to him. I still hold them in safekeeping for my son.
How different today.....senior civil servants expect a gong just for doing their job for a few years and low level employees in the M.O.D. expect and receive bonuses although how such a conglomerate can justify and calculate a "bonus" escapes me however many verbose attempts are made by those ensconced in the same sweetie jar. It seems the same glittering virus has infected magistrates especially the very small vocal minority who post on the Magistrates` Association private Forum where in a poll 83% were sympathetic to the idea of a JP`s long service medal. The pressure was such that it even reached the recent AGM of the Association as a proposal. Thankfully in that arena sense ruled and it was thrown out. Are the days now gone when, as in the case of JPs, voluntary work had its own reward without bits of metal to be worn demonstrating ostensibly what a good chap/chapess"?
Thursday 7 November 2019
NOBODY EXPECTS THE SPANISH INQUISITION AT THE JCIO
One would have thought that magistrates, if accused of any form of misconduct, would have a professional body to which they could look for expert assistance. Such bodies as the BMA, AOP, Pharmacists' Defence Association Union exist as the protective bodies for doctors, optometrists and pharmacists respectively. Many similar organisations exist for most trades and professions. Magistrates are on their own when confronted by authority. The only body acting as a forum for J.P.s is the Magistrates Association; a charity which has about 80% of the 15,000 magistrates as paid up members. However it exists under a Royal Charter as an educational organisation with very strict limits on its activities.
Below is About Us copied from its website.
Our Royal Charter
We are proud to operate under our Royal Charter granted in 1962 and updated in 2013. We are established and incorporated to promote the sound administration of the law, including, but not restricted to, educating and instructing magistrates and others in the law, the administration of justice, the treatment of offenders and the prevention of crime.
Promoting the magistracy
As the voice of magistrates we work hard to promote the work of our members and the institution of the lay justice system. We speak to key decision-makers in Parliament and Government, as well as the media and other organisations in the criminal justice field. Our in-house policy team researches key topics relevant to the magistracy as well as monitoring changes in the law to ensure our members are supported.
Supporting our members
We are here to support our members. Our members receive our bi-monthly magazine which provides a range of supportive articles and information valuable to any magistrate. They also receive access to our members' area which contains a variety of materials designed to assist magistrates in their duties. The MA provides a variety of training and events at national and local branch levels.
What the MA does not do is providing protection and representation for its members facing disciplinary procedures. For those magistrates who find themselves the subject of a complaint however minor the process can be soul destroying. The Judicial Rules (Magistrates) under which the proceedings are undertaken run to 19 pages of small print and 151 clauses many with numerous sub clauses. Magistrates are examined by a conduct panel consisting of three members of the advisory committee to which the complaint was made originally. Magistrates must speak for themselves when told to give evidence. It is extremely unlikely that the "prosecution" will allow a legally qualified representative of the "defendant" to give evidence on his/her behalf. It must be emphasised that this is not a court of law: indeed such a court especially at the higher levels possesses to a certain degree a level playing field and equality of arms. It is not unlikely that the current process IMHO is in breach of human rights legislation. When a complaint is made, on receipt of the report from the conduct panel the Judicial Conduct Investigations Office must examine the papers submitted. If the "evidence" warrants it the case is then referred to an investigating judge. The matter then depending on circumstances can be referred to a disciplinary panel or direct to the Lord Chancellor and the Lord Chief Justice. The requirements of the investigation by the judge are listed under 15 clauses. Where a magistrate has indeed been found guilty of misconduct by JCIO a very brief report including the offence, judgement and sanction is published on its website. This very brief truncated account of a situation which can take over a year to its conclusion is the very tip of the judicial iceberg of investigative process.
Whether or not a magistrate in such a situation can take legal advice depends upon the depth of his/her pockets. I would opine that to have legal advice throughout the process would necessitate many, perhaps dozens of letters and other documents being thoroughly scrutinised and replies being made as appropriate to the investigation. If a legal presence is required at any stage that too would be a costly business especially in London. It is not unrealistic to assess such costs in five figures. The Star Chamber was an English court which sat at the royal Palace of Westminster, from the late 15th century to the mid-17th century (c. 1641), and was composed of Privy Counsellors and common-law judges to supplement the judicial activities of the common-law and equity courts in civil and criminal matters. The Star Chamber was originally established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would probably hesitate to convict them of their crimes. However, it became synonymous with social and political oppression through the arbitrary use and abuse of the power it wielded. I would suggest that the iniquitous procedures employed against magistrates has now become itself a star chamber. Despite the 19 pages and 151 clauses or perhaps because of them, the treatment of magistrates, including those retired and placed on the supplemental list, constitutes oppression through the arbitrary use and abuse of power.
Only last month a magistrate was issued “formal advice” for retweeting a tweet which the Judicial Conduct Investigations Office considered politically insensitive.
None but the participants will ever know the content of the tweet which apparently caused the offence nor will we ever know whether or not Mr Taylor JP decided not to risk his magisterial career by fighting the charge and agreed to the final outcome. When the disgrace of possible removal from the magistracy is the Sword of Damocles hanging over every magistrate faced with the disciplinary process it is not unlikely that some (many?) "repent their sins" in agreement with an outcome which allows them to continue in post. This is rather like an equivocal early guilty plea of which most readers will be familiar and which became more apparent after the imposition of the Criminal Courts Charge in 2015 the difference being that a bench in these circumstances would be wise to reject such a plea and substitute not guilty in its place.
Sad to say there is no organisation whose role is to act in the best interests of magistrates. Until such time the only term which can even loosely describe the current investigative process is The Spanish Inquisition.
Monday 4 November 2019
EVERYDAY INJUSTICE AT MAGISTRATES COURTS
I have recently had a comment from a serving JP about his disquiet in the manner in which warrants for utility companies are rubber stamped sometimes in their hundreds. As a newbie to the bench I too was very much disturbed by the complete lack of justice for those faced with court action for non payment. There seemed to be no interest by anybody in even recognising there was a problem from my colleagues up to the Deputy Justices Clerk. However over a period of about two years with the assistance of a sympathetic L/A and a new DJC I persuaded him that the document copied below be placed on the bench for every such hearing. I fear, however, that since my retirement old habits have prevailed. Search https://thejusticeofthepeaceblog.blogspot.com/2013/08/six-of-best.html for a summary of early previous posts on this topic.
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Applications by utilities companies for warrants to enter premises to inspect or read a meter/install a pre-payment meter, or to disconnect the supply – Questions for Applicants
1) How many attempts were made to contact the customer before the application today and were any successful?
2) Could the customer be vulnerable?
3) Are you satisfied that no member of the household is dependent on medical equipment that is operated by electricity such as a stair lift, electric wheelchair, defibrillator or dialysis machine?
4) What is the total amount owed by the customer and what period do the arrears cover?
5) Has there been any dispute about the amount owed by the customer? How are you sure that you are right and they are wrong?
6) Could the arrears be met by an arrangement between the customer and his or her supplier?
7) If in receipt of benefits, has any attempt been made to enable the customer to pay off the arrears using Fuel Direct?
8) Under what circumstances, when the engineer arrives at the property, would the disconnection not be carried out?
9) Has information been provided to the customer about how they could reduce their bills in future by more efficient use of energy?
10) Are you sure that the address is currently occupied by the person responsible for the debt?
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Energy Disconnection Warrants – An extract from the Best Practice Guidance
Under the Rights of Entry (Gas and Electricity Boards) Act 1954 a representative of a gas or electricity supply company can apply for a warrant of entry to premises to inspect or read the meter, to install a prepayment meter, or to disconnect the supply.
Applications for a warrant of entry must be made on oath under s2(1) of the 1954 Act. In order for a warrant to be granted, the relevant company must satisfy the magistrate that admission is reasonably required, that consent has not been given by or on behalf of the occupier, and that relevant period of notice has been given.
When considering whether to grant a disconnection warrant, you should consider asking some or all of the following questions.
Actions before applying for a warrant.
Whilst there is no legal requirement to do so, energy suppliers wishing to disconnect energy supply should make several attempts to contact the customer – by letter, by phone and in person - before moving to apply for a warrant in accordance with voluntary guidance published in 2004 by the Energy Retail Association, the trade association for domestic energy suppliers. They can also deal with a third party agent, though they may not always succeed in establishing contact. If, during contact with the customer, it becomes apparent that the customer is unable to pay the bill, suppliers’ staff will attempt to obtain further information about the customer or their dependents, including such details as their age, whether they are currently receiving benefits, the number of young children in the household or any special circumstances such as whether any members of the household are disabled or have special needs.
The typical number of attempts to contact the customer is detailed earlier in this document.
Regulation on disconnections
Companies wishing to supply gas or electricity in Great Britain must hold a licence from the regulator, the Office of Gas and Electricity Markets (Ofgem), and must comply with a list of Standard Licence Conditions. Of relevance to the issue of the disconnection of supply are Standard Licence Conditions 35 and 37A for gas suppliers and Standard Licence Condition 35 for electricity suppliers.
Limitations on possible disconnection
The effect of these Licence Conditions is that gas and electricity suppliers should, as far as practicable, avoid disconnecting the supply where the customer (the bill payer) is either of pensionable age or disabled or chronically sick in the period between 1 October and 31 March (commonly referred to as the Winter Moratorium) and, in the case of gas supply, should not disconnect households where, to the knowledge or reasonable belief of the company, the customer is of pensionable age and lives alone or with other persons all of whom are also of pensionable age or under eighteen years of age between the same dates.
Safeguards and duties
In addition, energy companies are also expected to offer a range of help to customers experiencing difficulties as an alternative to disconnection, and Standard Licence Condition 35(d) for both gas and electricity supply requires companies to take into account the customer’s ability to repay debt. Suppliers have a duty to accept payment by Fuel Direct, a system whereby customers on three qualifying benefits (Income Support, Pension Credit and Jobseekers Allowance) facing disconnection can pay a defined minimum which is deducted from benefits weekly. Suppliers are also required to offer customers a Pre Payment Meter before they move to disconnect supply.
Friday 1 November 2019
A STING IN THE TAIL OF THIS TALE
A recent decision on planning law by the Court of Appeal was reversed by the Supreme Court by a 3:2 majority to the satisfaction of the appellant but there was a sting in the tail of this tale. Read all about it.
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