R Susan Wilson and Others v The Prime Minister and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 10 December 2018 |
| Neutral Citation | [2018] EWHC 3520 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3214/2018 |
| Date | 10 December 2018 |
[2018] EWHC 3520 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Ouseley
CO/3214/2018
APPEARANCES
Ms J Simor QC, Mr P Green QC, Mr P Eleftheriadis, Mr A Wagner and Ms R MacKenzie (instructed by Croft Solicitors) appeared on behalf of the Claimant. ( Mr. P Eleftheriadis appeared at the judgment read-out.)
Sir James Eadie QC and Mr J Barrett (instructed by the Government Legal Department) appeared on behalf of the Defendants. ( Mr. J Barrett appeared at the judgment read-out.)
For the reasons which I shall read out, and I do not think it is appropriate to keep people in suspense, I have decided to refuse permission for this application on the grounds of delay and want of merit.
On 23 June 2016, in a referendum provided for under the European Union Referendum Act 2015, the United Kingdom voted 51.89 per cent to 48.1 per cent; that is 17,410,74votes against 1,6141,241 votes in favour of leaving the European Union. Article 50(1) of the Treaty on European Union provides that any member state may decide to withdraw from the Union “in accordance with its own Constitutional requirements”. By Article 50(2), a member state which decides to withdraw shall notify the European Council of its intention. The Government announced its intention to give notice following the referendum result, as the Conservative Party Manifesto had said that the result would be honoured.
The proposed use of the prerogative power to give that notice was challenged. On 24 January 2017, the Supreme Court held in R(Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, [2018] AC 61, that the Prime Minister required statutory authority to give such notice. On 16 March 2017, so nearly nine months after the referendum result, Parliament enacted the European Union (Notification of Withdrawal) Act 2017 which by s.1(1) provided that the Prime Minister “may notify” the European Council of the UK's intention to leave the EU.
On 29 March 2017, the Prime Minister conveyed that notice by letter to the President of the European Council, President Tusk. In it she said:
“Earlier this month, the United Kingdom Parliament confirmed the result of the referendum by voting with clear and convincing majorities in both of its Houses for the European Union (Notification of Withdrawal) Bill. The Bill was passed by Parliament on 13 March, and it received Royal Assent from Her Majesty the Queen and became an Act of Parliament on 16 March.
Today, therefore, I am writing to give effect to the democratic decision of the people of the United Kingdom. I hereby notify the European Council in accordance with Article 50(2) of the Treaty on European Union of the United Kingdom's intention to withdraw from the European Union.”
On 26 June 2018, Parliament enacted the European Union (Withdrawal) Act 2018 repealing European Communities Act 1972 on “exit day” defined as 29 March 2019 at 11pm, subject to s.20(4) which permits the date to be amended by regulation “to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom.”
The claimants are four individuals who, though UK nationals and EU citizens, were not entitled to vote in the referendum because they were disqualified by their period of residence abroad. They challenge the lawfulness of the referendum, and the lawfulness of the decision to give and the giving of the notice on 29 March 2017 under Article 50, on the grounds that each was vitiated because of illegal practices in the referendum by Leave campaigners, including Vote Leave Limited, the “official” body representing the Leave side. They also challenge what they describe as the continuing decision or action of the Prime Minister, or her lack of action, in continuing with the negotiation and withdrawal process in the light of evidence drawn to her attention about those illegal practices. I should add that, although I am aware of the decision of the CJEU this morning, no challenge to the decision to give notice under Article 50 or to the continuing negotiations has been made on the basis that the Government had not understood a right of unilateral withdrawal to exist. Before turning to examine the relief more closely, I need to set out a little more of the legal background and facts.
The Referendum itself was conducted under an Act which made no provision for its outcome to have any consequences. It was in legal terms an advisory referendum and did not need to be acted on or acted on in any particular way. Of course, it had quite a different political effect with politicians, to varying degrees on each side of the debate, feeling politically bound, or not, by it to proceed with withdrawal.
The Referendum was described as part of the UK's constitutional requirements for the giving of notice of withdrawal for the purposes of Article 50; Schindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469, [2017] QB 226 at [13] and [19]. I confess to some difficulty in seeing that an advisory referendum was part of the UK's constitutional requirements, rather than being part of its chosen mode of proceeding. Be that as it may, I am bound by that decision.
In a permission decision, permission to cite which has not been given, in R(Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin) a Divisional Court held that the 2017 Act gave the Prime Minister a discretion as to whether to give notice. Without that citation I would have come to precisely the same conclusion. Giving notice evidenced the decision. It is also plainly correct that that decision is judicially reviewable.
The 2017 Act was undoubtedly part of the UK's constitutional requirements for giving notice. What those constitutional requirements are is a matter of UK domestic law, and not EU law.
The 2016 Referendum, though advisory, was not unregulated. The 2015 Act provided a combination of specific regulatory provisions and incorporation, by virtue of ss.3 and 4 and subject to modification, of parts of the Political Parties, Elections and Referendums Act 2000 (“PPERA”). It also gave power for regulations to be made. Those provisions governed, materially, limits on campaign expenditure for designated participants, donations, grants, donations from abroad; they controlled expenditure in joint working by those in the same cause, along with provisions for reporting, returns and declarations as to expenditure and donations. Each side had an “official” or designated permitted participant. For the Leave campaign, this was Vote Leave Ltd, for whom the responsible person, in effect the agent, on whom various duties fell, was David Hassell. There were other permitted participants. Another body prominently supporting the Leave campaign was Leave.EU. These regulatory provisions provided for breaches of their requirements to be investigated and ruled on by the Electoral Commission, with rights of appeal now being exercised against its findings. It also made provision for criminal offences where regulations had been breached. Schedule 3, para.19(1) prevented a challenge being brought which questioned the number of ballot papers counted or votes cast unless it was brought within six weeks after the certification of the Referendum result. That is not what this case is about.
The 2015 Act with its incorporated regulatory requirements, made no provision for what effect, if any, there was to be on the outcome of the referendum in the event of a breach of the expenditure controls or other requirements, or indeed for acts involving the bribing of voters. In the Representation of the People Act 1983, by contrast, two provisions deal with such issues. The significance of these provisions is helpfully explained by Mr Mawrey QC in his judgment as the election judge in an election court in Erlam v Rahman [2015] EWHC 1215 (QB) [25]-[38]. In very simple terms, if the candidate is guilty, personally or by his agent, of a corrupt or illegal practice, his election is void. It is also void where without his fault, corrupt or illegal practices or illegal payments have been so extensive that they may reasonably be supposed to have affected the result. See ss.159 and 164 of the 1983 Act.
Section 164(2) provides that an election shall not be liable to be voided “otherwise than under this section by reason of general corruption, bribery, treating or intimidation.” These are words which indicate what the scope of the common law powers for avoiding elections were, or at least were thought to...
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Susan Wilson v The Prime Minister
...Queen's Bench Division, to give them permission to proceed with their claim for judicial review issued against the prime minister([2018] EWHC 3520 (Admin)). Ms Jessica Simor, QC, and Mr Pavlos Eleftheriadis for the claimants; Sir James Eadie, QC, and Mr Joseph Barrett for the prime minister......