Judicial review is not “politics by another means”

9 March 2019 by

Wilson and others v R (on the application of ) v the Prime Minister [2019] EWCA Civ 304

The Court of Appeal has turned down an appeal against an application seeking judicial review of May’s triggering of Article 50 under the power granted to her by the European Union (Notification of Withdrawal) Act 2017. The applicants sought a declaration that this was unlawful because it was

based upon the result of a referendum that was itself unlawful as a result of corrupt and illegal practices, notably offences of overspending committed by those involved in the campaign to leave the EU

On 10 December 2018, Ouseley J refused permission to proceed with the judicial review on the basis of both delay and want of merit, and ordered the Applicants to pay the Respondent’s costs. This was a hearing for permission to appeal against that order. Permission was refused.

This Court rejected any notion that any breaches of the rules affected the outcome of the referendum result. In relation to the charge of overspending, Hickinbottom LJ observed that

campaigners registered for the UK to remain in the EU reported an aggregate spend of £19.3m and those registered to campaign for the UK to leave the EU reported a spend of £13.3m. Remain campaigners therefore reported spending about £6m more than leave campaigners.

The Commission did find that some bodies and individuals involved in the Referendum campaign breached spending limits or committed other breaches of campaign financing requirements. These findings are currently under appeal. However it had not been established that these breaches of campaign finance or other requirements meant that the result of the Referendum was ‘procured by fraud’, or that the outcome of the Referendum was affected by any wrongdoing or unlawful conduct.

The applicants sought to argue that there was still a basis in common law for voiding the referendum despite the fact that The Representation of the People Act 1983 sets out all the requirements for a vote to be binding. The Court of Appeal rejected this and all other arguments, stating

there is simply no evidential basis for the proposition that the breaches, or any of them, are material in the sense that, had they not occurred, the result of the referendum would have been different.

Hickinbottom LJ agreed with the judge at first instance that

a minimum requirement for the exercise of any common law power in this new context of non-binding referendums would be that any breach of rules is material. It would be inconceivable for the common law to adopt a principle that requires or even enables a court of law to interfere with the democratic process where any breach of the voting rules is proved but not such as to affect the result; and, in my view, ….in this case, there is no evidence that gives rise to any soundly based ground for believing the outcome of the referendum result would have been different if the breaches of the rules had not occurred

As for the argument that the Respondent Prime Minister had acted unlawfully in the withdrawal notification, the Court observed that it was up to those that the referendum advised to consider whether, in all the circumstances, the EU referendum result was and continues to be sufficiently robust as to reflect the will of the people on the question of withdrawal from the EU. The Withdrawal Act provides that any negotiated withdrawal deal or a withdrawal with no deal has to be approved by Parliament. In the circumstances, for the court to declare void the decision to notify withdrawal or the notification itself would “clearly be a constitutionally inappropriate and unlawful interference in the due democratic process.”

Nor did the Court consider any of the substantive grounds had any real prospects of success. Therefore it agreed with the judges below in refusing permission to proceed with the appeal.

The Applicants clearly oppose the UK leaving the EU; and hold strong views to that effect. Others hold strong views in favour of leaving the EU. The subject matter raises passions on both sides. However, consideration of this claim must be focused exclusively on the question of whether the Respondent has acted in accordance with the law. The courts are not concerned at all with the merits of leaving or remaining in the EU.

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