Wilson & Ors , R (On the Application Of) v The Prime Minister

A court should not treat an advisory referendum as a binding election or import statutory consequences which Parliament has not provided. Where Parliament has prescribed the circumstances and time for challenging a referendum, there is a strong presumption against any additional common-law jurisdiction. Any residual power would in any event require a material breach, sufficiently final findings, and evidence that the result would probably have differed. A statutory power to notify withdrawal derives from the enabling Act, not from the referendum’s legal validity. Later-discovered misconduct does not retrospectively establish an error in the original decision. Delay may independently defeat relief where the claim is out of time and prejudicial to good administration. Permission-stage costs may exceptionally be ordered where the hearing is substantial and the claim is hopeless or abusive.

The applicants sought judicial review of the Prime Minister’s decision on 29 March 2017 to notify the European Union of the United Kingdom’s intention to withdraw, and of the notification itself. They alleged that overspending and other unlawful campaign practices had invalidated the 2016 referendum, or required reconsideration after later Electoral Commission findings.

Ouseley J refused permission to proceed, holding that the claim lacked merit and was substantially out of time, and ordered costs. The decision is reported at [2018] EWHA 3520 (Admin). The applicants sought permission to appeal. The central issues were whether the courts had any common-law power to invalidate an advisory referendum, whether the notification decision was affected by error or irrationality, whether delay barred relief, and whether the costs order was permissible.

Lord Justice Hickinbottom, with Lord Justice Haddon-Cave agreeing, refused permission to appeal on every ground. The merits threshold was low, requiring an arguable ground with a realistic prospect of success, but none of the applicants’ grounds met it.

1. Referendum validity. The European Union Referendum Act 2015 specified a route and time limit for challenges to the certified referendum result. That created a strong presumption against additional common-law intervention. The referendum was advisory, and Parliament retained ultimate control over withdrawal. The authorities relied on concerning elections, including Ashby v White, Faulkner v Elger and Newby, Bradford Case (No 2) and Morgan v Simpson, did not establish a freestanding jurisdiction to set aside the referendum.
2. Materiality. Even if a residual common-law power existed, intervention would require a material breach. The misconduct findings would need sufficient finality, and there would need to be evidence providing a sound basis for concluding that the result would probably have been different. Electoral Commission findings remained subject to appeal and other investigations continued. The alleged overspend and the size of the voting margin supplied no evidential basis for materiality.
3. Notification decision. The power to notify derived from section 1(1) of the European Union (Notification of Withdrawal) Act 2017, not from a legally valid referendum. The Prime Minister could not have erred by failing to consider later findings of which she was unaware when she acted. There was likewise no arguable irrationality in failing to withdraw or reconsider the notification, particularly given Parliament’s continuing control under section 13 of the European Union (Withdrawal) Act 2018. Judicial review concerned legality, not the political merits of withdrawal.
4. Delay and costs. The referendum challenge was subject to a six-week limit, and the notification challenge was in any event brought many months late. The delay was undue and relief would seriously prejudice good administration. Costs were discretionary under the Senior Courts Act 1981 and the Civil Procedure Rules. Although costs for attendance at a permission hearing are generally not ordered, exceptional circumstances existed: the hearing lasted a full day, the claim was hopeless, and the applicants had effectively obtained a substantial hearing. The costs order was within the proper discretion of Ouseley J.

1. Court of Appeal (Civil Division): On 4 March 2019, refused permission to appeal on all grounds and upheld the refusal to proceed with the judicial review and the related costs order.
2. Queen’s Bench Division, Administrative Court: Ouseley J refused permission to proceed with the judicial review on 10 December 2018 for want of merit and delay, and ordered the applicants to pay £17,256 in costs. The decision is reported at [2018] EWHA 3520 (Admin).
3. Queen’s Bench Division, Administrative Court: Supperstone J had earlier refused permission on the papers on 21 September 2018, on grounds of delay and merit.