1/ I had a little dig into the legal implications of Vote Leave cheating on spending limits (short thread)
2/ In General and Local elections there is a longstanding procedure for an ‘Election Court’ (basically the High Court sitting in a different guise) to scrutinise a result. It happens via the Representation of the People Act
3/ So if there is a serous breach of the rules, or cheating or some other kind of inpropriety, the Election Court can overturn a general election or local election result (eg the Woolas case (theguardian.com/law/2010/dec/0…). The law even applies to local election referendums
4/ Which all makes sense. What is the point of having strict rules over elections and referendums if there are no consequences for them being broken? Well...
5/ Here’s the ridiculous part. The result of the Brexit Referendum - unlike general elections, local elections or even local council referendums - isn’t subject to the the Election Court. So even though Vote Leave broke the rules, the result probably can’t be challenged
6/ What principled reason is there that a local council referendum result can be challenged if there is cheating but not a national referendum? None.
I did wonder whether that anomaly might be challengeable in court (eg under human rights laws) but would be a tough sell
I did wonder whether that anomaly might be challengeable in court (eg under human rights laws) but would be a tough sell
7/ There is also the issue that even if the referendum is overturned, article 50 has still been triggered so there would arguably be no legal effect on the Brexit process anyway. Since the referendum was advisory its overturning would be advisory too.
8/ So even though Vote Leave cheated (in a major, potentially result-altering way) whether the result will be overturned is a political rather than legal question. It’s up to politicians to decide that the referendum should be rerun as the result was sullied by the cheating
9/ Here is an extract from Halsbury's Laws of England on challenging and potentially overturning a local authority referendum. As far as I can tell, none of these safeguards apply to the Brexit Referendum 
10/ So - local authority referendums to decide whether a park is turned into flats - challengeable in an election court if rules are breached.
Referendum on whether we should stay in or leave the EU with enormous effects for everyone in the country? Not so much
Referendum on whether we should stay in or leave the EU with enormous effects for everyone in the country? Not so much
11/ Just to hammer home the point - this shows how the local authority referendum (similarly a general election result) can be overturned by a court. Not the Brexit Referendum though
12/ I did have a look at this but as far as I can tell it has no or very little legal effect in the UK
13/ Addendum: @ewanmcg argues in this post that there may be recourse through a common law route to declare the referendum void. Here’s a few quick thoughts on that...
verfassungsblog.de/if-vote-leave-…
verfassungsblog.de/if-vote-leave-…
14/ I had wondered this. From reading the history to the Representation of the People Act, it was clearly codifying longer standing common law rights to challenge elections. You can read more about Morgan v Simpson - @davidallengreen's favourite judge! en.wikipedia.org/wiki/Morgan_v_…
15/ Here are Lord Denning's 3 key principles arising from the common law - 3 would be the one which potential applies to the Brexit referendum. BUT - you would have to get through a few hurdles, which @ewanmcg rightly highlights
16/ @ewanmcg's basic point, which Morgan v Simpson supports, is that elections (and referendums?) are so fundamental to our democracy (even notwithstanding the "advisory" nature of the Ref) that legal rights will arise when cheating has a material effect on the result
17/ It isn't as straightforward as that though. There are some hurdles to get through before you can apply the common law principle to the Brexit referendum. (1) Does the common law principle apply to an 'advisory' referendum (that term is very elastic in my view)...
18/ ... the government would argue that an advisory election is basically an opinion poll and nothing more, therefore the common law principles around the right to vote as 'a most transcendent thing' don't apply or are significantly watered down in this case
19/ (2) Timing: if this was a judicial review, time limit is usually 3 months from date of the decision under challenge. That would be the declaring of the referendum which took place over two years ago. Difficult if not insurmountable given the cheating evidence arose recently
20/ (3) Schedule 1 to the regulations which governed the referendum allow for a number of offences for individuals but doesn't allow for (although also doesn't prohibit as far as I can see) the declaring of the vote void. legislation.gov.uk/ukdsi/2016/978…
21/ Argument there would be that if Parliament had wanted it to be possible for the result to be challenged and declared void it would have said so. Presumably this was debated though others will know more. But since it doesn't exclude the possibility, this may be a weak argument
22/ This is all highly speculative. The courts will bend over backwards not to cause a constitutional crisis and, unlike the principle of legality in the Miller (article 50) case, the common law right to challenge *referendums* as opposed to *elections* isn't well developed
23/ But... the Supreme Court especially has been very assertive in common law cases recently and would enjoy the trawl through historical law and Dickens. I am guessing there will be cases about referendums as for some reason the right to challenge local authority referendums...
24/ ... made it into the Representation of the People Act. Overall, it just seems *odd* that if there was a fraud which materially affected the result of the referendum, which was of significant constitutional importance, there would be no recourse save political
