Yesterday, the High Court refused to grant us permission to proceed with our judicial review of the Electoral Commission. It expressed concerns about the quality of the investigation undertaken by the Electoral Commission and said it “probably would” have given us permission but it wanted to wait for the outcome of the Electoral Commission’s appeal against the Divisional Court’s decision in our favour in the Vote Leave case (to be heard on 4 July).

It was plainly troubled by the nature of the investigation the Electoral Commission claims to have undertaken into the circumstances in which the DUP claims to have accepted the largest donation in Northern’s Ireland’s political history. The background is set out here.

A number of matters follow from this.

First, should the Electoral Commission lose its appeal in the Vote Leave case, and it is our confident expectation that it will, we will require it carry out an investigation into whether the DUP and Constitutional Research Council broke the law. If it refuses, we will again issue judicial review proceedings. Thanks to the considerable generosity of our Counsel team – Gavin Millar QC and Tom Cleaver – we will not need to seek further funding for those judicial review proceedings.

Second, up until yesterday the Electoral Commission had refused to disclose to us details about the investigation it claims it carried out into the donation. We have now seen those details and we believe we are entitled to release them to the public. We have given the Electoral Commission seven days to object but, as we presently understand matters, there is no proper basis for them to do so.

Third, during the course of December, the Electoral Commission made this improper statement about Good Law Project and this judicial review:

"We are disappointed that the Good Law Project continues to pursue this judicial review. They are using this particular case, and the restrictions imposed upon the commission by the Northern Ireland transparency laws, to fuel public mistrust where none is merited."

That statement was not born out by the hearing and the Electoral Commission should withdraw it and apologise. As the comments made by the Judge in the High Court make clear, the scrutiny of its conduct is plainly appropriate on these facts and a properly governed regulator would welcome that scrutiny.

In our last update, we said that the High Court refused us permission to judicial review on the papers (you can read the decision here). We believe that the judge was wrong to refuse us permission, and it is worth noting that we were also refused permission in the Vote Leave case, which we went on to win. Having conferred with our legal team, we can confirm that we will be asking the High Court for an oral permission hearing. Pending receipt of permission, we have temporarily closed the crowdfunding. We will, of course, keep you updated.    

We thought you should know promptly that the High Court has refused us permission to judicial review on the papers.

We are discussing this with our legal team and will revert to you shortly. However it is worth noting (1) that we were also refused permission in the Vote Leave case (which of course we went on to win) and (2) our initial view is that the judge was wrong to refuse us permission.

We have tweeted out the permission decision here.

In our last update, we said we would like to publish a letter from the Electoral Commission, but the Commission had sought to impose an obligation on us to keep it confidential. Before Christmas, we published the correspondence, which revealed that the Constitutional Research Council had been fined £6,000.  

You may also have seen that the Commission lashed out at the Good Law Project in a BBC article, suggesting that we are using the judicial review, “and the restrictions imposed upon the commission by the Northern Ireland transparency laws, to fuel public mistrust where none is merited.” We do not believed this allegation is (remotely) warranted and have responded in full here.

We have also published our grounds here and will shortly add the Electoral Commission's response.

If you would like to be updated as to Good Law Project's other activities you can subscribe to our newsletter here.

We apologise for the lengthy passage of time since our last update.

We have received a response from the Electoral Commission to our formal letter threatening legal proceedings for its failure (1) properly to investigate the DUP for apparently accepting a donation without investigation its source and (2) to act against the shadowy Constitutional Research Council for incurring hundreds of thousands of pounds of referendum expenditure without registering. 

We would like to publish that response but the Electoral Commission has sought to impose an obligation on us to keep it confidential. We do not believe we have any such obligation and we will write to it imminently saying that we propose releasing their response and, in effect, inviting it to seek an injunction to prevent us doing so.

We are also not satisfied that the response answers the complaints made in our formal letter and so we have instructed leading electoral lawyer Gavin Millar QC to act for the Good Law Project, alongside  junior barristers Tom Cleaver and Eleanor Mitchell and Polly Glynn of Deighton Pierce Glynn, in an action against the Electoral Commission. We expect to issue formal proceedings in the High Court very shortly. We will, of course, keep you updated.

We are grateful for your ongoing support.

Jo Maugham QC
Director, Good Law Project