Susan Wilson v The Prime Minister
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Haddon-Cave |
| Judgment Date | 04 March 2019 |
| Neutral Citation | [2019] EWCA Civ 304 |
| Docket Number | Case No: C1/2018/3034 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 March 2019 |
[2019] EWCA Civ 304
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE OUSELEY
[2018] EWHA 3520 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Lord Justice Haddon-Cave
Case No: C1/2018/3034
The Queen on the Application of
Jessica Simor QC and Pavlos Eleftheriadis (instructed by Croft Solicitors) for the Applicants
Sir James Eadie QC and Joseph Barrett (instructed by Government Legal Department) for the Respondent
Hearing date: 21 February 2019
Approved Judgment
Introduction
On 29 March 2017, under the power granted to her by the European Union (Notification of Withdrawal) Act 2017 (“the 2017 Act”), the Respondent Prime Minister notified the European Union (“the EU”) of the United Kingdom's intention to withdraw from the EU under article 50(2) of the Treaty on European Union. In this claim for judicial review, the Applicants contend that the Respondent's decision to notify and the notification itself were unlawful because they were 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. Alternatively, it is said that the Respondent erred in law in not responding to the subsequent evidence of those practices as it emerged.
On 10 December 2018, following a full day's hearing, 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 summarily assessed in the sum of £17,256.
The Applicants applied for permission to appeal that Order. That application came before this court on 21 February 2019 when, after hearing substantial argument, we indicated that we would refuse permission to appeal on all grounds and would give our reasons at a later date. In this judgment, I set out my reasons for that refusal.
Before us, Jessica Simor QC and Pavlos Eleftheriadis appeared for the Applicants; and Sir James Eadie QC and Joseph Barrett for the Respondent. At the outset, I thank them all for their respective contributions.
Background Facts
The European Union Referendum Act 2015 (“the 2015 Act”) provided for a referendum on the UK's membership of the EU (“the EU referendum”). The referendum, although only advisory, was thus made an “an integral part of the process of deciding to withdraw from the EU” ( Schindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469; [2017] QB 226 at [19] per Lord Dyson MR).
With necessary modifications, the 2015 Act adopted the existing regulatory framework for elections and referendums set out in the Political Parties, Elections and Referendums Act 2000 (“the 2000 Act”), which lays down rules for participation, spending limits and permissible donations, including rules on returns to be submitted to the Electoral Commission in relation to spending and donations, the breach of which constitutes a criminal offence. The Electoral Commission was established by section 1 of the 2000 Act, as the regulator with statutory powers to set and enforce standards in relation to elections and referendums, including the regulation of political finances and campaign spending. Amongst other things, it considers and determines whether there have been breaches of the relevant regulations against the criminal standard of proof. There is a right of appeal against the Commission's findings, on law and facts, to the Central London County Court (paragraph 6(6) of Schedule 19 to the 2000 Act).
Where requirements are breached in a binding public vote (e.g. in an election), then in two particular sets of circumstances the Representation of the People Act 1983 (“the 1983 Act”) imposes identified consequences so far as the result of the vote is concerned. Section 159(1) deals with the situation where a candidate or his agent has himself been guilty of corrupt or illegal practices:
“If a candidate who has been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void.”
Section 164(1)(a) covers the circumstances in which an election might be void for general corruption:
“Where on an election petition, it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person at that election have so extensively prevailed that they may be reasonably supposed to have affected the result… his election … shall be void…”.
Section 164(2) provides that:
“An election shall not be liable to be avoided otherwise than under this section by reason of general corruption, bribery, treating or intimidation.”
However, the 2015 Act did not apply those provisions to the EU referendum, which was advisory only. Paragraph 19 of Schedule 3 to the 2015 Act, under the heading, “Restrictions on challenge to referendum result”, simply provided:
“(1) No court may entertain any proceedings for questioning the number of ballot papers counted or votes cast in the referendum as certified by the Chief Counting Officer or a Regional Counting Officer or counting officer unless—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed before the end of the permitted period.
(2) In sub-paragraph (1) ‘the permitted period’ means the period of 6 weeks beginning with—
(a) the day on which the officer in question gives a certificate as to the number of ballot papers counted and votes cast in the referendum, or
(b) if the officer gives more than one such certificate, the day on which the last is given.”
Paragraph 133 of the Explanatory Note accompanying the 2015 Act said of that paragraph:
“Paragraph 19 relates to how the result of the referendum may be challenged in legal proceedings. It provides that any challenge in respect of the number of ballot papers counted or votes cast as certified by the Chief Counting Officer, a Regional Counting Officer or a counting officer must be brought by way of judicial review (sub-paragraph (1)(a)). In addition, the challenge must be commenced within six weeks of the date of the relevant certificate (sub-paragraphs 1(b) and (2)). The six-week period is intended to ensure that sufficient time is allowed for challenges to be brought while avoiding prolonged delay in the final result of the referendum being known”
However, the 2015 Act did not expressly specify any further legal consequences of any breach of the rules so far as the effect of the EU referendum result was concerned.
The EU referendum was held on 23 June 2016. The result was declared the following day, the UK voting 51.9 percent (17,410,742 votes) to 48.1 percent (16,141,241 votes) in favour of leaving the EU. Although the EU referendum was only advisory, the Conservative Party Manifesto had said that the result would be honoured; and, following the referendum result, the Government announced its intention to give notice of withdrawal from the EU.
The Government intended to give that notice under Royal Prerogative powers; but its ability to do so was challenged on the basis that notice to leave the EU could not be given without an Act of Parliament. That challenge was successful in the Divisional Court and then, on appeal by the Secretary of State, in the Supreme Court ( R (Miller) v Secretary of State for Exiting the European Union ([2016] EWHC 2768 (Admin) affirmed [2017] UKSC 5; [2018] AC 61). Miller thus confirmed that Parliament retained control over the ultimate decision as to whether the UK left the EU.
As a result, on 16 March 2017, Parliament passed the 2017 Act. Section 1(1) provided that:
“The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU.”
By that provision, as confirmed in R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin), Parliament gave the Prime Minister the power to give notification of withdrawal and a discretion as to when to give notice.
Under the power granted by the 2017 Act, on 29 March 2017, in a letter to the President of the European Council, His Excellency Donald Tusk, the Respondent gave notification of withdrawal.
Since the notification, on 26 June 2018 Parliament has enacted the European Union (Withdrawal) Act 2018 (“the 2018 Act”) repealing the European Communities Act 1972 on “exit day”. Subject to section 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”, “exit day” is defined as 29 March 2019. The lengthy section 13, headed “Parliamentary approval of the outcome of negotiations with the EU”, requires Parliament to approve any negotiated withdrawal deal or a withdrawal without a deal. That again illustrates that, whilst the executive government has been undertaking the withdrawal negotiations, Parliament has retained ultimate control over the UK's withdrawal from the EU.
The present challenge focuses on alleged misconduct in the EU referendum by various permitted participants who campaigned for leaving the EU, notably the designated lead campaigner Vote Leave Limited (“Vote Leave”); another leave campaigner Leave.EU Limited (“Leave.EU”), its director Arron Banks and its campaign organiser Better for the Country Limited; and Darren Grimes as well as BeLeave, an unregistered campaigner with which Mr Grimes was associated. The essential...
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