Brexit can now be legally voided due to corruption, Dr Ewan McGaughey from KCL tells me why

hi everybody and okay so you'll notice that the video isn't a particularly good quality one and this time around there's a very good reason for that I'm joined over Skype by dr. Ewen McAfee and who lectures law at King's College London and is a research associate at Cambridge University now your lectures on constitutional law and European Union law amongst other things is a fair representation here yes I do tutorials in constitutional law and EU law I suppose I'm most interested in labor law and the constitution of the economy but I've always been fascinated by constitutional questions so yeah this is service this is over Skype so when we all have the video is gonna come out but hopefully the audio will be okay now the reason I approach you and he kindly agreed to make this video is because in April he wrote a blog on the London School of Economics website entitled fraud and rebels everything brexit is voidable an article fifty can be revoked and this sermon is obviously really grabbed my attention given the immediate relevancy after the recently announced investigation into arab banks and leave the EU by the National Crime Agency so you and Kitty you took us through why Rex is legally voidable in light of these allegations yeah if you just start with an easy analogy if a group of Russian athletes win a bunch of medals the Sochi Winter Olympics and then it turns out that they've all been taking drugs we don't leave them with their medals we take their mammals away because you want to ensure that the competition is fair so there hasn't been an example in UK history where a referendum has been declared for it because we've had very few referendums our Constitution is meant to be based on the idea that we elect members of parliament and members of parliament represent our interests so you know this is is really kind of new um but there is very well established authority that any public body or any public figure including the Prime Minister is bound by law and so the technical legal argument is that under the European Union notification of withdrawal act of 2017 section 1 says that the Prime Minister had a power to trigger article 50 to go to the European Union Commission and negotiators and negotiate for us to leave now the reason they did that on the basis that the referendum was the will of the people that this was a result you know sort of 51.84 t 8.1 in favour of leading you know so that's a consideration that she took into account she thought that the referendum was fair and valid but if it turns out that that was wrong then continuing to negotiate to leave would be based on an irrelevant consideration in other words a corrupt brexit vote yeah so you know that then you go well what is it that could undermine the vote I mean wasn't the referendum a pretty decisive in favor of leaving the European Union and the answer is not really I mean so far as boats go it's a pretty small margin you know we're talking what would it be sort of one point one point two percent one point so what 1.8 percent on on either side and the problem is we've then got all of these factors that have questioned the legitimacy of the boat so we can get into them in more detail but basically there's four big things number one which has come up in recent days we've got the allegation that the biggest donation to brexit from aaron banks might have been funded by the kremlin by the Russian government through an offering or other things number two we've got the fact that Russia quite aside from Aaron banks was bombarding social media with fake news if you like but more importantly tweeting commenting sharing information in order to drum up support for brexit on Twitter probably Facebook probably YouTube except we don't really know about Facebook and YouTube yeah yeah um thirdly we've got overspending by vote leaf which is the official campaign so you know 1.8 percent is the voter margin but we've got sort of 6.4 percent excessive spending by that league and the fourth thing is simply that a lot of people's data was unlawfully taken and vote leave targeted people based on data that was procured through Facebook or who knows where else through a company called Cambridge analytic or now grouped IQ which would also be you know very serious set of violations of the law so I can to any of those in more detail if you like it's probably worth amazing actually because a lot of people will probably comment on this and say yeah but you know there was corruption on the remain side there was you know they'll bail they'll cite the nine million pounds leaflets that would you know give it to every UK a house on etc allegations about the spamming on the remain site but well that just kind of reinforces the message that you're trying to give with regards see if there's corruption on all sides then that makes the whole thing even more kind of let's just take overspending if it turned out that remain had been overspending by a great deal and that was violating the law then that would mean that the process of brexit was even more debased now the problem is that when we're talking about legal violations that affect the vote um it's not like you know old-fashioned sort of ballot box stuffing you know you know putting extra voting or taking some we're talking about advertising which has psychological impact which can mislead people or you know we're simply talking about an external factor like foreign interference and there's no clear way to assess the causal impact of that but there's there's no scientifically clear way that we can say what the causal impact will be but that can cut both ways but so you know we've got for instance 6.4% overspending by vote leaf um could that you might ask sway 1.8 percent of the voters in the UK the answer is well we don't know but maybe the impact was even bigger right here so maybe it's waves you know not just not like you know nor point 1 percent of people voting maybe it's weighed 10 percent or 15 percent we don't know but one very important factor is that Dominic Cummings who was the head of vote League got up and I think it was a festival called non-stock and you know what when he was going around sort of doing his victory lap after after brexit and he helped audience on a public YouTube video which he's since taken down and I'm just going to find the quote here but vote leave dumped their entire budget in the last 10 days so that's 7 million pounds plus the overspent money well you don't actually the entire budget in the last 10 days targeting he says roughly 7 million people who saw something like one and a half billion ads one and a half billion ads million people as an incredible number of hundreds of birds mints for a tiny segment and he clearly thought that that was enough to do it and so thought that was not to sway people then I don't see why I call wouldn't yeah yeah um ok so let's move on a little bit so let's assume let's just assume we did attempt avoid brexit now article fifties already been triggered and we're well we're well down that road and is it a fact that we can unilaterally withdrawal from article 50 so my view is yes that there are three ways that you could approach this issue so you can look at it from a UK law point of view from an international law point of view or an EU law point of view and I think that the answer is it's a mixture of the three and all three lead to the conclusion and you can unilaterally withdraw so first of all that the UK view you might say is the best one because article 50 itself says that we must notify and negotiate to lead according to our own constitutional requirements yeah so if according to our Constitution the UK courts decide that when Theresa made triggered article 50 it was doing so on an erroneous ground namely that the vote wasn't corrupt then that would lead to the conclusion that her exercise of discretion could be quashed under UK law which would make the act of notifying the intention to leave under article 50 just void now under international law there's something called the Vienna Convention on treaties and you know this says very clearly that if you give a notification you can withdraw it and unless this you know sort of final agreement so international law is completely clear EU law we don't really know there is a court case on this to our theory of justice whether or not the UK can unilaterally withdraw notification under Article tivity there are different arguments based on policy in both ways against the UK unilaterally withdrawing notification you could argue that you know that would encourage people to misuse the withdrawal process because it certainly gives the UK more bargaining power in negotiations and that might be unfair on other member states but I think that the tendency of the court of justice is always to give an interpretation to the treaties the holds the European Union together you know so fundamentally it's a bad thing for the EU for one of its member states to be dropping out and you know the more that the you can do to make the process welter to draw out the process make it more deliberative to make sure that it truly is what the UK wants in its case can only be a good thing for the European Union - yeah sure so um because obviously when we're up against time now March next year with ready to leave Vienna March next year so I'm kind of interested and D is this something that could be instigated through Parliament is this assist so to point brexit for example on these grains and bearing in mind that and these are just allegations nobody's actually been there nobody's been found guilty of any of these things at the moment and how could this actually happen would it would it be through a private citizen a group could it be through Parliament I mean any of you how could this these chain of events take take place let me just take issue they've wanted one thing I mean it is it is definitely proven that Russia interferes in brexit that's not open to debate so the fake news committee found and I'll just give you a little quote again I think this committee in the House of Commons cross parliamentary committee said that a hunt that they found a hundred and fifty six thousand two hundred and fifty two Russian accounts tweeting about hashtag brexit and leaving forty five thousand roughly forty five thousand messages in the last 48 hours before the referendum and they go on to say so that's just on Twitter and we know about Twitter because it's public I'm going on to say the Russia today the Russian state TV station and Sputnik another Russian controlled media outlet had more reach on Twitter than both the leaf campaign and the remain campaign combined you know so that is not open to question and and also I have to stress we don't know what's happened on Facebook so Facebook refuses to disclose the data about Russian BOTS or Russian located box using the comments that the like and the sharing functions YouTube has the same story Google hasn't really been looked at properly but there's the same problem there and we know that on Facebook in the u.s. presidential election there was definitely Russian activity is absolutely massive so that's not open to debate it's also not open to debate the the vote leave campaign did break the law and and it's it's not open to debate that Facebook has at the very least being too relaxed about users privacy leading to all of the data appropriation which was subsequently used for psychological targeting in fact I've got a book right here this is Timothy Snyder a Yale historian his book is called the road to UM freedom Russian European America and so this is all about Putin's asymmetric data and cyber war against the UK Europe the US I mean we've already got historians writing this yeah and so it's very very serious but now to you know the real question that your apps are asking is you know how could we go about voiding the referendum so no I think that ultimately there has to be a political resolution to all of this but if you wanted to challenge the prime minister's triggering of article 15 and say that the referendum is void you've got to go to court so that's opening on December 7th we've got two QCs and three other barristers a very good legal team around them there's going to be arguing in the High Court that notification on drastical 50 is void in the referendum is void that's led by Jessica Seymour the QC but very very talented group of people um but you know so it's a really really big thing to go to court and have a court say that the referendum is void um now I think fundamentally the law has to be applied you know if you ask a judge do you think that the law should not be applied because the political issue is so big I don't think that there's any credible judge that would say no because this is too political that we shouldn't apply the law I mean that said we need people in Parliament to you know watch what's happening in the judicial process and they need to take very very seriously their own roles as constituency MPs and to look very carefully in Parliament about what to do yes I agree and particularly given the fact that you know you're a lawyer you know you know what you're talking about and there are actually proven in legalities with regards to this Parliament seems very quiet and these generally seem very quiet about this whole thing there's obviously a few exceptions but as a whole they seem to be seems to be very quiet and it seems to be depressingly as if they're just going through the motions especially with regards to the opposition that doesn't seem to be any pick up on these things could I just respond very quickly to that I mean I think that you're I think that you're right in an in in the following way members of parliament will put in in an incredibly difficult position after the referendum I mean in many ways the referendum is as a as a tool of democratic decision-making it's a it directly undermines the system of parliamentary democracy so MPs are supposed to be accountable to their conscience to their constituents in their country but then there was this decision made through a referendum which no it seemed in the sort of toxic as fear after the vote that nobody could challenge and then you've got the Daily Mail calling the judiciary the enemies of the people and we've got people like Aaron banks who accusing journalists of well very very similar things to what you can see Donald Trump doing in the United States um but so I went to the faint news committee hearings in Parliament with you know all of the proceedings about Kay huge analytical about Facebook and Alexander Nicks and you know the fake news Erin banks was there as well um and I saw a group of MPs majority Tory who were incredibly conscientious very very intelligent engaged and genuinely want to do the right thing for the country there's a minority of Labour MPs and I think one SNP MP and you know all of them genuinely want to do the right thing the problem is that the public media discourse in this country has become I think so polarized that it takes away the sort of oxygen from I think the vast majority of MPs were really genuinely trying to do a good thing I mean the Labour Party is in a very very difficult position because a lot of its constituencies a lot of constituencies and MP seats were voting to leave but by relatively small margins but you know I think what's so important about the last two years has been the growing discourse as we see what breaks it could be fact that people's opinions are starting to change I think that's been a recent poll as well in labour constituencies that Cameron yesterday I think we're no but there's every single labor constituency has a majority now we seem to have the people's plate which is some just quaint just be very interesting to see how that changes the public face was a the way that any of the Labour Party come across was across the breaks it because they try to have to think that it's gonna be all things to all people at the moment and at some point I feel that they need to pick up on the things that you're talking about with regards to corruption they need to start really calling calling this out because this is it's just incredibly important what you're what you're talking about here because it goes to the very heart of our democracy it's the very heart of our Constitution so I mean the Secretary of State for Xing the EU is Kirsten oh yeah sorry I think upon the shadow Secretary's day is is Kirsten and in in Parliament in you know one of the big debates about withdrawal notification from the EU he said that fundamentally the Labour Party is a party of democracy and for that reason that there has been this view that the referendum has to be respected and and I think that leads to the conclusion that it you should negotiate in good faith with the U you should see what the deal is but precisely because I think not just the Labour Party but all of the MPs in Parliament are fundamentally Democrats that means that people have to have the right to look at the issues and choose again I mean so there's a fundamental principle in our Constitution that no Parliament combined a future Parliament and that's the idea of parliamentary sovereignty and by the way we augment our sovereignty we've got by being part of an international community the United Nations and the European Union we're not giving away sovereignty when we're part of the club which strengthens our voice in the world so you know democracy is is the the key one of the key things that parliamentary sovereignty allows and just as you know no Parliament combined a future Parliament no referendum in the past can stop people changing their mind in the future either through Parliament or potentially through another referendum yeah significant given the proven corruption and the alleged corruption are you aware of any Oracle parallels to this cellular national vote is there is there anything in the past any precedent so I had I'm afraid not a completely comprehensive but I did have a look to see if I could find any easy to hand examples of referendums being declared void in the past yeah and I haven't come across anything yet I was looking mainly at well the UK is easy but then there's Germany there's Switzerland the United States has a lot of referendums Australia and state reference look sorry I'm not aware of any referendum being declared void yet so in that sense there's not a precedent but there's there's a very good reason why there isn't an easy precedent in the UK we don't have referendums very much in our constitution and so it hasn't come up but we've got loads of precedents where elections for MPs or elections for councillors are declared void because the vote was irregular so what constitutional law tells us is is two basic things number one if you've had a vote which was marred by irregularity and that would have changed the result then the vote must be declared void so that means you know the MPs seat is vacated or the councillors seat is vacated and you just got to do it again if it's resolved and then the second principle is that if you've got irregularities that were so substantially that there was so bad that they substantial they substantially violated the law on Elections but they would interchange result then you still need to clever declare the void if the process was really really bad now I would argue that in the case of brexit we've got evidence that both the result would have been different on the balance of probabilities had the process being regular but also you know even though we can't know the the causal impact for sure the violations were so massive even without our banks and is eight point formula found potentially Kremlin fondant donation yeah but let me just say one more thing because I've heard a number of people say that you know referendums are an illegitimate way of doing things and then you've got people than brexit camp like Nigel Farrar saying you know well Switzerland is a great democracy and they have referendums all the time and people stick by it couldn't be further from the truth so when you have a referendum in Switzerland or people's initiative there's actually two kinds then you know everybody gets comprehensive information on what voting for there is a very very clearly established set of principles for how you ask the question that so that people are given a real choice between two concrete alternatives and then just a whole culture around doing things properly because they've had to they've had to do it regularly the way that we did our referendum on brexit is number one we had a prime minister that wanted to silence his backbenchers you might remember he was called David Cameron he's whipping come from all that so David Cameron basically wanted to do it for internal party political issues not because he genuinely wanted to resolve a question in good faith number two the question was completely unclear you were asked a choice between remaining which is certain and the sooner for miss reprise of Greg says we just don't know what it is it could be in it this is it's like what's that game shows that come but when I open up the box Deal or No Deal exactly you know might have had a deal we might have had no deal yeah absolutely amazing utterly irresponsible and then we've got you know the total lack of preparedness from our intelligence services from the Electoral Commission to monitor the process to make sure the spending is done properly and also perhaps I could just add finally you know you've got completely irresponsible people leading leave EU and leading vote leave you know with people like Dominic Cummings and Aaron banks and Nigel Faraj who completely isolated from the mainstream of politics because their political charlatans and no respect for the rules no respect for process and they just did anything that they could to win you know like just like the Russian athletes cheating with drugs yeah it's gonna be it's gonna be interesting to see if there's any more that comes out by the allegation Pete Reiser may prevent it the security services this is investigating Aaron banks that's going to be quite a potentially explosive thing I think in what are you in favor of the people's vote Eunice is that something that you would you would hope would happen it's fear or you just want this whole thing canceled because they're obviously the processes has been started so there obviously needs to be something to resolve it from a democratic point of view so how would you see that happening so I don't think that I have a 100% cast iron view on what should happen next other than to say that I think that from the evidence that we've already got the vote was so corrupt that it looks like there are very very good grounds for it to be cancelled in court I think second you know we're talking about a travesty for parliamentary democracy it's even gone to the point where we're looking at Northern Ireland's being segregated from the rest of the UK we're looking at the breakup of the United Kingdom because the Scottish National Party will want another independence referendum we're literally talking about the breakdown of the country and so even given the fact that this that we got here through a referendum you might be cautious about wanting another referendum to undo the damage so you know it's it's the old adage that - wrong stone necessarily make a right now on the other hand I think that you have to be pragmatic I mean so if you go you know if I take my lawyers hat off and don't talk about legal procedure but I sort of think as a citizen you know it seems to me that one of the reasons that a very large number of people in this country voted for brexit is because people lacked a voice and we've had the longest contraction of wages since the Industrial Revolution we've got many problems with rent we've got problems with healthcare and so people were crying out to be heard because since 1979 people have had less and less voice in the way that their society works and so it would be a very big step to simply say that that referendum was void and that we don't want to ask the people again now I think that the right way to do it is through Parliament but if it's the case that people in Parliament think that the people's vote is the right way to resolve this and and put a lid on it with the proviso that we don't have referendums very lightly again I might be in favor of people's yeah it's not proven to be a particular successful referendum as at this time right and you and that's fantastic thank you ever so much where can people find you on Twitter do you have a to handle yeah I do it's it's apt and then you and MC G so judges mcg for McAfee and you and mcg or one really oh and I'll make sure it's in the credits at the end of the video as well so thank you very much good yeah okay thanks for talking