Incidental powers allow public body to publish its findings in the public interest

The post below was first published on our Public Law blog

In Vote Leave Ltd v The Electoral Commission [2019] EWCA Civ 1938 the Court of Appeal found that it was within the Electoral Commission's incidental powers to publish a report setting out its investigation and findings in relation to payments made by Vote Leave Ltd ("Vote Leave”) during the 2016 EU referendum (the "Report”). In doing so, the Court also made wider comments on the public interest in public bodies publishing such information.

Key Points

• Public bodies acting pursuant to statutory powers might have implied or incidental powers in addition to those expressly conferred by the relevant statute.
• There is a strong public interest in public bodies with an investigative function being as transparent as possible.

Background

The Electoral Commission conducted an investigation into Vote Leave pursuant to its powers under the Political Parties, Elections and Referendums Act 2000 (the "Act”). It subsequently fined Vote Leave in relation to payments that the organisation had made during the 2016 referendum.

The Electoral Commission also published a report on its website setting out its investigation and findings (the "Report”). Vote Leave sought permission to judicially review the Electoral Commission's publication of the Report on the basis that it was not within the body's statutory powers.

Vote Leave was initially refused permission to apply for judicial review by the High Court. Vote Leave successfully appealed that decision in the Court of Appeal – the judge granted them permission to challenge the Electoral Commission's publication of the Report by way of judicial review and ordered that the challenge be heard directly in the Court of Appeal.

Judgment

The Court of Appeal dismissed the challenge. The decision turned on a point of statutory construction. The Court confirmed that the Act did not expressly empower the Electoral Commission to publish the Report. However, it disagreed with the appellant's submission that such a power could not be conferred by implication. The full range of public authorities' powers are not necessarily expressly set out in statute – for example it is well recognised that local authorities have the power to carry out activities which are incidental to their express statutory functions. This principle is codified in respect of the Electoral Commission at Paragraph 2 of Schedule 1 to the Act which reads: "The [Electoral] Commission may do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions” (emphasis added). This is a common form of wording which is found in a variety of statutory contexts.

In this instance, the Court found that the publication of the Report was incidental to the Electoral Commission's express statutory function of "monitoring” or "securing” participants' compliance with the Act during the referendum. In response to the appellant's suggestion that such "monitoring” or "securing” compliance could only happen during a campaign itself, the Court found that subsequent investigations such as this were at the very least a method of "securing” compliance. The knowledge that the Electoral Commission might later conduct an investigation and publish its findings was an incentive for organisations to comply with the Act whilst campaigning. To suggest otherwise was "over-literal”. Singh LJ in particular also considered that the Report was a method by which to "monitor” compliance – it was "simply unrealistic” to expect the Electoral Commission to publish the Report during the referendum itself and a broader construction of the word was required. The Court also disregarded the appellant's suggestion that the existence of express provision in the Act to make reports in other circumstances meant that an incidental power to publish the Report in this circumstance could not be inferred.

The Court went on to highlight that this construction was also right as a matter of policy. There was a public interest in the publication of the Report. Underhill LJ noted the importance of public bodies being "as open as possible” [24] about their inquiries. Singh LJ added that the public interest was not contingent on the result of any investigation – there was "an important interest in knowing that the [Electoral Commission] had gone about its work properly and conscientiously” [38] notwithstanding the content of the findings.

Comment

The Courts have generally tended to construe public bodies' incidental powers quite narrowly. This decision illustrates how matters of policy can be a relevant factor when considering how to interpret such powers; a strong public interest may favour a broad interpretation. Public bodies considering the remit of their express and implied powers should bear this in mind and take the public interest of their proposed actions into account. Those dealing with public authorities should be similarly aware of this factor and note that the full extent of the authority's powers will not necessarily be set out in the relevant statute.

This decision is also another example of the Court balancing the broader public interest against the impact on specific individuals. In particular the Court is likely to lean in favour of the public interest when considering public bodies publishing their findings on an issue of public importance. Although Vote Leave submitted that the press publicity from the Report was prejudicial, the Court was very clear that this did not outweigh the public interest in publication.