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Court Challenge to the 2016 Referendum Moves to The Court of Appeal

Professor Pavlos Eleftheriadis

A number of British citizens residing in the European Union, led by Sue Wilson, have brought a challenge to the legality of the EU Referendum of 2016. They are also challenging  the decision of the Prime Minister to ignore the findings of illegality by Vote Leave and Leave.EU by the Electoral Commission.

The claim is based on the common law and on general constitutional principle. This is because the European Union Referendum Act 2015, which determines the legal nature of the referendum, says nothing about the validity of the referendum in case of breaches of funding rules by the designated campaigner and other campaigners, such as those found by the Electoral Commission in May and July 2018. The claimants argue that in the absence of detailed statutory language to the contrary, the general principles of the common law should apply. They rely, among other cases, on the Bradford Case (No 2) (1869) 1 O’M & H 35, 19 LT 723, a case which dates before electoral law became a matter for statute under the Ballot Act 1872, where the court ruled as follows:

“It is the policy of the law that a man should exercise the franchise freely; and therefore, if undue pressure, whether it be bribery, treating or oppression, be brought to influence his vote the vote becomes bad. If this influence be widespread and general it vitiates the election by virtue of the common law, irrespective of particular Acts of Parliament.”

The case, which has been crowdfunded by more than 3000 people, was heard at a permission hearing in the High Court by Mr Justice Ouseley on 07 December. He gave judgment on 10 December refusing permission for judicial review, on the ground that the referendum itself and the decision of the Prime Minister to notify the intention of the UK to leave the EU in March 2017 were not challenged ‘promptly or in any event within three months' as is required by the law of judicial review, and are now out of time. He also refused to extend time, on account of reasons of ‘good administration’. In addition, he found that even if the claim had been brought within time, he would have rejected it as unarguable.

Given the significance of the case, the judge allowed the judgment to be relied upon in the future, even though it was handed down at a permission stage. The case will be known as The Queen (on the application of Susan Wilson and Others) v the Prime Minister [2018] EWHC 3520 (Admin). The claimants have now applied for permission to appeal to the Court of Appeal.  

Professor Pavlos Eleftheriadis, of Francis Taylor Building, acted for the claimants. He was led by Jessica Simor QC and Patrick Green QC, alongside Adam Wagner and Reanne Mackenzie. They were instructed by Croft Solicitors.