Am in Court One where I will be live tweeting the permission hearing in @GoodLawProject's Judicial Review of @ElectoralCommUK.
I have gathered together all the material for the benefit of journalists and interested parties. It can be seen here goodlawproject.org/judicial-revie…
Jessica Simor QC and Tom Cleaver for @GoodLawProject; Richard Gordon QC for @ElectoralCommUK; Timothy Straker QC and James Tumbridge for Vote Leave.
Adjourned til 2pm because the Court only receieved the papers from EC and VL this am. (It's been a pleasure).
("One of the better outings for the Good Law Project," observes a passing wag.)
And we're back. Worth noting that @GoodLawProject's JR has already had the effect of causing @ElectoralCommUK to reopen its investigation (as Lang J found). 
What we are asking for today is clairification of the law. We say future campaigners and the EC must know what is the law governing referendums and general elections. At the moment (says Lang J) there is doubt.
Judge wants to understand the legal issue. What is the dispute between the parties. Technical stuff so I will just give the flavour.
JS: Can one participant make donations to another participant? This question turns on the statutory definition of "referendum expenses".
JS: If a common plan is established there is a different requirement as to how expenses are declared. They must be declared by the or each permitted participant.
Divisional Court of England and Wales is content that I should live tweet the hearing (attn: @michaelgove).
JS: We do not understand what the Electoral Commission understands the "common plan" test requires.
Judge wants to understand the relationship between issue one and two.
JS plan was for VL to donate its own money to DG to increase the amount it can spend. With the purpose of enabling it to spend more money on its own campaign.
Judge not understanding this submission. Asks JS to develop arguments on grounds one and two.
JS VL was served with Claim Form didnt deliver an AOS as the rules require. It has no entitlement to appear today.
JS: VL has made a last minute disclosure of information the existence of which the EC has denied.
JS: Did EC ever advise VL that it could spend in this way? GLP contended that it had in its claim form.
JS: Quotes Cummings statement that EC had suddenly allowed VL to spend more.
JS shows court where EC has denied ever giving such advice to VL. We have VL's disclosure to EC which is the advice given by EC to VL.
JS says EC advised VL that it could donate goods and services to other campaigns. That caused VL to realise it could donate excess campaign material to other campaign groups.
JS It is an understatement to say we are surprised at the EC's performance of its duty of candour.
JS And EC failed in its duty to monitor the referendum properly. [Much discussion on the other side of the court].
JS Stronger In did not make any donations to other campaigning groups.
JS: two questions of statutory interpretation. Lang considered our analysis of statutory scheme to be "arguable".
Judge isnt interested in what Lang said about what is or isnt arguable.
JS: after written permission decision we wrote to EC asking them to agree they needed to understand the law [i posted the letter earlier in the the thread]
Js: CPS would also want to be clear about what the statutory scheme means. Surprised and disappointed the EC did not respond.
JS: EC asked for a higher threshold of arguability to be applied at oral hearing stage. We say that is wrong. Judge agrees.
JS: Takes Judge to EC report. EC report to Parliament. Recommendation 7. EC report says there needs to be clarification on joint spending rules.
Judge: trying to understand what ground 2 adds to ground 1.
JS ground 2 adds the question of what a common plan means.
JS Goes back to report. Judge is hostile to this point.
JS Clear from VL materials that it was also confused [my paraphrase].
JS the question remains unclear and contentious. Turns to legislative framework.
Impossible usefully to summarise this stuff. Whilst JS goes through it, here's what the EC says about the effect of the JR on its stance towards VL.
JS The position of the EC is that a donation cannot be "incurred" - cannot be common plan expenditure - but we say that is wrong.
JS We say that inpaying AIQ 725k for services that VL denied to DG and VfB VL incurred that expense. DG/VfB may well also have received a donation and DG/VfB may also have incurred an expense. [Assumes no common plan].
JS: Then, was there a common plan? We say on the evidence yes.
JS: we say regime covering donations is an entirely separate regime for entirely separate purposes.
JS it is to prevent foreign donors (broadly). Nothing to do with regulating spending caps.
[Sleep well, twitter].
JS Explains why the EC takes a different position. We say that approach removes spending caps on permitted participants.
JS Finally goes to reporting requirements. They control expenditure incurred.
Judge explains why the regime must look at incurred not spent monies. JS agrees.
Judge: you are moving between what the statute means and what the facts are. This is a merits point?
JS: Trying to ground the law in the facts. Judge hostile.
JS coming under pressure from court.
Judge does it matter to whom AIQ has an obligation? We say it doesnt matter.
JS Purpose of regime is to prevent groups spending above permitted limits. EC's stance undermines the controls.
JS Answer from EC is (1) law does not prevent campaigns from donating to one another because it didnt prohibit they nust be allowed. We agree.
[Apols. Ive lost the thread].
JS [deals with why we say EC's position is wrong].
JS then deals with the question of whether this is hypothetical.
JS [in response to a question from judge] we are most certainly not asking for a quashing order in relation to the referendum result. Its about whether refs and GEs are properly regulated.
JS Public interest in understanding the law given there is a clear possibility a referendum may take place in this country in the next six to ten months. A challenge asserts on the law there is a legal entitlement to such.
Judge Do you say legal issue raises conduct of GEs? Similar but more complex. Statutory intention is same approach should be adopted.
JS Raises an important point for this investigation and needs to be decided going forward.
Judge asks whether JS says the fact of a criminal investigation means thr HC should not deal with it? JS The investigation must be carried out on the correct legal basis. The CPS would want to know what the provisions mean in order to decide whether to prosecute.
JS astonishing to say we must pursue a private prosecution rather than challenge EC.
RG As to disclosure we had thought we were dealing with written replies to VL. We say we have no such records in our possession.
Judge: why do you say no such advice was given?
RG We assumed that it was only in writing. Judge is an email not in writing?
RG If it should have been disclosed that is not due to an intention to mislead - we had disclosed the material under an FOI request?
Judge - what is the basis for your statement? RG if we had failed to disclose we apologise.
Judge I am not helped by points about EC's view.
RG nothing in statutory regime barring a genuine donation.
[Apols. This is technical stuff and it is v difficult to summarise]
RG says if there is a donation then that cant be expenditure incurred. Judge looks sceptical [This is the crux of the case].
RG my point here is that you cant say a load of different people can incur the statutory expense.
Judge How does one incur an expense on behalf of someone else?
[VL's junior passing submissions to EC's QC. I didnt see whether EC QC is reading them.]
RG The Commission has never given specific advice. If we have fallen short on disclosure we apologise.
Judges confer. We have taken account of your written submissions. Pushing it to enable you to be heard.
VL: We put them in deliberately on Tuesday. Asks to be allowed to develop submissions on "by and on behalf of". I say I can assist the court because it is so abundantly plain that incurred means by or on behalf of the candidate.
Judge Is it covered in your written observations? VL Not so clearly. Judge Where? RS I havent dealt with this as expressly as i should have done.
Judge. Too late for you to submit.
[*I believe* - this is only my opinion - VL put in a deliberately provocative skeleton and deliberately late to force the judge to decide they could not be heard. So they could complain if the matter went against them.]
JS EC has said *for the first time* that incurred means there must be a liability. We gave a definition of incurred. EC did not.
Incurred cant mean a contractual liability because notional expenses must also be accounted for.
JS payment arose prior to the work here. AIQ required prior payment here and got it.
Court decides to reserve decision. Asks RG to set out the position in relation to disclosure in writing.
