Richard Clayton QC’s recent article for the UK Constitutional Law Association “The Brexit Case That Never Was…” (see here) whetted one’s appetite for a constitutional debate which – sandwiched in between the most controversial referendum result in British history and a snap general election – is riper than ever.
Clayton’s central theory is interesting: with the furore around the Miller  case, one ponders a potential opportunity missed by those aggrieved by last June’s result. He points to a potential route of challenge against the outcome which makes Miller seem like the proverbial storm in a tea-cup both in terms of constitutional reach and potential impact on party politics outside of Brexit.
Section 115(2)(b) of the Representation of People Act 1983 (“oh, of course, that one!” I hear you cry in unison!) – is the star of the show. This creates an offence in circumstances – in short – where a person by ‘fraudulent device or contrivance’ compels, induces or prevails upon (or intends to do so) an elector either to vote or to refrain from voting in an electoral campaign.
Although the provision is a creature of criminal law, nothing in the enabling regulations for the EU referendum confined it as such. And so, a claimant in judicial review could, (at least have) in theory, have applied to the Administrative Court to seek a declaration that s 115 had been breached.
Both Brexit camps were accused during the referendum, and have since, of being more than economical with the truth in terms of the potential effects of our divorce from the union. The famous Leave tour bus and Boris posters with pledges to ‘invest’ the funds into an NHS creaking at the seams are etched into the memory. So too Remain’s apparent misquoting of the Governor of the Bank of England’s concerns about the economic effects.
Both campaigns might have been the subject of challenge but nobody took the plunge within the short timeframe judicial review requires. Why? Money, of course, will have been a significant factor – adverse costs orders are an obvious disincentive to what might be seen as a fairly novel and politically nuclear challenge (although given the advent of Crowd Funding and the widespread dissatisfaction with the result – it would be surprising if this would be as a big a hurdle as in any other ‘ordinary’ case). Impact on reputation and public condemnation (in probably the same measure as hero worship) also distinctly unappetising for most – just ask Gina Miller.
And so how does this play into the next six weeks?
Well, the bar has been set…or arguably lowered for political parties in the run-up to June 8th. Before Brexit, the biggest story of manifesto misadventure in the 21st century Britain was the Liberal Democrat abandonment of a stance on increasing student tuition fees which had been its platform for entrance into the coalition government. Since then, Trump’s wall also feeds the rhetoric.
Propaganda and spin are, of course, nothing new but the behemoth of social media (the growth of which – even since the penultimate general election – has been incredible) and the opportunity it presents for distortion and hyperbole makes the clarity of message (from a constitutional if not a party political perspective) all the more important.
Although given the short timeframe before we’re all asked to cast our vote, one suspects that this might be one to revisit in 2022 – assuming the mandate awarded is one which because of money, reputational risk and/or (possibly latterly) the law, is beyond reproach…