European Law Monitor

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Why the EU referendum result has no democratic legitimacy

On the 23rd June 2016, the UK was supposed to take part in the biggest exercise of democracy it has ever had. Leave campaigners heralded the EU referendum as a “vote for democracy”, however the dishonest practices of Vote Leave and its campaigners has quite possibly turned the EU referendum into one the biggest abuses of democratic process this country has ever seen.

For the EU referendum campaign, Vote Leave created a website and published numerous campaign leaflets on a range of topics, including immigration, border controls, migration (including Turkish membership) EU contributions and national security. They also created a primary document, called “Why Vote Leave on the 23rd June” which amalgamated the key messages of the campaign.

The core messages from Vote Leave were

  • immigration is out of control and we will regain control once we leave,

  • we can't control our borders

  • we pay £350m a week to the EU which we could spend on the NHS instead

  • we are not in control of our defence

  • we have no control or input into anything that happens in the EU and we are consistently outvoted,

  • the unelected European Commission controls our law,

  • terrorists and violent criminals can come into the UK with impunity and we can’t do anything about it,

  • the European courts control us,

  • the Charter of Fundamental Rights gives the European Court of Justice unlimited power,

  • an EU army is on its way, which our army will be forced to join

  • Turkey, Albania, Macedonia, Montenegro and Serbia will be joining by 2020

  • We can't stop any of these countries joining

  • We have no control as members of the EU.

Scary stuff.

Except... none of the above statements are true.

What few people realised is that the main Vote Leave campaign messages – on immigration, control of our borders, migration and Turkey, the cost of our EU contributions, and the UK's powers in relation to national security and defence, were riddled with lies and misrepresentations.

Yet it seems clear that these lies and misrepresentations were believed. An Ipsos Mori poll issued on the 23rd June 2016 found that nearly half of the British public (47%) believed Vote Leave’s claim that the UK pays £350 million a week to the European Union to be true, despite the figure being debunked, and repeatedly criticised by the UK Statistics Authority.

The same Ipsos Mori poll also found that

  • 48% of people believed that if Britain remained in the EU that it would be made to pay billions of pounds to bail out Eurozone countries.

  • 45% of people believed that if we remain in the EU Turkey will be fast tracked into becoming a full EU Member and 80m Turks will have the right to free movement to the UK.

  • Another interesting fact that a number of people got wrong was the number of EU immigrants as a percentage of the UK population. People believed that figure was approximately 15% whereas Ipsos Mori said in reality it was 6%.

An ORB poll in mid June 2016 found that 49% of leave voters thought leaving the EU would give them greater control of their lives.

It therefore seems reasonable to assume that the information contained in Vote Leaves campaign literature, and repeatedly expressed by Vote Leave campaigners, had a material effect on how people voted, even though that information was usually not factually correct or misrepresented the facts.

What makes this an abuse of democratic process is the sheer scale of those lies and misrepresentations. For example, out of one 16 page leaflet there were just six factually correct statements, and four of those were descriptions of the UK.

Politicians and campaigners on either side of the argument are fully entitled to offer their political opinions and speculative assessments of what might happen in the future, economically or politically, and set out their visions for the future; but to deliberately present factually incorrect information with the explicit intent to mislead the electorate goes well beyond the boundaries of democratic legitimacy and arguably UK electoral law.

But what prompted Brexit campaigners to come out with these lies and misleading statements in the first instance?  The answer appears to lie in a poll run by Lord Ashcroft (a committed Brexiter) in November and December 2015. This poll examined in detail the issues that were likely to be of relevance to people in the EU referendum. Analysis of a 20,000-sample poll identified seven “segments” of voters with different backgrounds, motivations, priorities, and views on EU membership covering the spectrum from Leave to Remain. The primary issues for potential leave voters were identified as immigration, control of borders, migration/refugees, UK contributions and national security, and this seems to have formed the basis for the campaign messages contained in the Vote Leave website and leaflets.

Given that these campaign leaflets are the ones with the most factual errors and the most misleading, it could reasonably be alleged that the Vote Leaves methodology was to prepare campaign materials which suggested that leaving the EU would deal with those concerns – irrespective of the factual accuracy of those assertions. Basically, they told people what they wanted to hear, irrespective of whether or not this was factually true, and whether or not it was achievable.

But surely there are people who check that the information put before the electorate is factually accurate? The short answer is no. At the moment, the Electoral Commission has no powers to check that the information provided in elections and referenda, including the EU referendum campaign, is factually accurate, although providing false information in campaign literature can be considered as undue influence in some circumstances, constituting a breach of electoral law ( R v Rowe Ex p. Mainwaring [1992] 1 W.L.R 1059).

Throughout the campaign, Vote Leave and Leave MPs lied and misled the electorate, and have consequently seriously undermined a fundamental democratic freedom; namely, the right to play an active and informed part in the political life of the country.

The UK is the oldest democracy in the world, and it has been seriously damaged by the irresponsible actions of Vote Leave and Leave MPs. Elections and referenda cannot be 'free and fair' where leading participants abuse their positions of trust by lying repeatedly to the electorate on matters of fact to achieve their political aims.

MPs are also governed by the Code of Conduct in Public Life, which requires MPs to act with:

"Selflessness … Integrity … Objectivity … Openness … Honesty”

It is difficult to see how lying and deliberately misleading the electorate is compatible with these fundamental tenets of public office.These MPs and MEPs have bought democracy and Parliament into disrepute, fundamentally undermining trust in both politicians and political process.

The net consequence of these lies and misrepresentations is that the EU referendum result can have no real democratic legitimacy, as it was greatly influenced by lying and misleading the electorate. It is not a true reflection of the will of the people, but more a reflection of the lies told to achieve this result, many of which have little bearing on reality.

Vote Leave campaigners will argue that 17.4M people voting to leave the EU constitutes electoral legitimacy. However, the question is how much the lies and misleading statements made by Vote Leave influenced voters. The Ipsos Mori poll results indicate that very many voters believed those statements, so almost by definition were unduly influenced by them when casting their vote. If just 5% of people that voted to exit, being properly informed, had voted remain then the result would have been reversed.

But the issue doesn't stop there; the 17.4M who voted to leave the EU only make up approximately 34.7% of the total number of people entitled to vote. In other words, some 65% of the electorate did NOT vote to exit the EU. Under normal circumstances it is reasonable to discount those who did not vote, however the conduct of Vote Leave during the EU referendum was not a normal circumstance.

In the lead up to the vote, interviews and polls indicated a very considerable confusion in the minds of the electorate as to the facts, and the merits and demerits of remain or leave. In these circumstances, voters are far more susceptible to the influence of campaigners. Trust becomes a key factor - who do you trust when you receive two widely conflicting versions of the truth? When it comes to such important decisions there is a far greater than normal responsibility by both parties not to exert undue influence through the telling of deliberate untruths or making misleading statements, thereby preventing the electorate making an informed choice.

When applying for designation as the main Leave campaign, Vote Leave gave an undertaking to the Electoral Commission that:

"As Parliamentarians, campaigners and political activists we are conscious that playing a leading part in such an important moment in our national democracy is a very significant responsibility. If we were designated we would undertake the task in this spirit, conscious of the gravity of the choice facing the British people".

The Vote Leave campaign has clearly fallen well below the standards of trust expected for such a decision, and the question remains as to how much effect their lies and misinformation had on those that did not vote. Many, it appears, did not vote as they were not sure of the facts, or who to believe. It is impossible to say what effect the Vote Leave camapign had on this section of the electorate, but any dishonest conduct that might have dissuaded people from voting brings further into question the final EU referendum result.

Since the referendum the government has adopted the policy of “Brexit means Brexit”, and even pro-Remain politicians repeat the mantra “we should respect the result”. But just why should the British people “respect the result”?

If a person is convicted of a serious crime where the witnesses lie to deceive judge and jury, should the jury's decision be respected? Of course not; to do so would be to respect a gross miscarriage of justice, and that is why there is an appeals process, and the law imposes criminal sanctions on those that try to abuse legal process by committing perjury.

To “respect the result” of the EU referendum, where the Vote Leave campaign lied repeatedly to the electorate to gain its desired result, should also not be automatically respected; its legitimacy is badly tainted. To accept the result is to accept a gross abuse of electoral process, and politicians are failing in their duty to Parliament and the people of Britain to simply accept it unconditionally, as to do so is a fundamental betrayal of democratic principles where lies and deceit have been allowed to win the day.

Legally speaking, the EU referendum is advisory in nature, and is not binding. Two leading barristers' Chambers are bringing legal challenges against the government arguing that consequently Parliament must give its consent prior to Article 50 being invoked. If that proves to be constitutionally correct, and the Prime Minister cannot invoke Article 50 using the Royal Perogative, then it will be for Parliament to decide what weight to give to the EU referendum result, given the lies and misrepresentations that were told in order to secure that result.

Analysis

An analysis of the lies and misrepresentations referred to above are detailed in full in the articles linked below.

When assessing the Vote Leave campaign literature, we went through the main campaign documents on a line by line basis, and where factual errors or misrepresentations were identified, we provide factual corrections. Copies of the original Vote Leave documents may be found at http://www.voteleavetakecontrol.org/briefing