Brexit, a topic that has generated much controversy and disagreement since the EU referendum was first announced, has seen another recent twist in the tale. British expatriates (‘expats’), within a group called the “UK in EU Challenge group", have launched a fresh legal challenge against the 2016 referendum. It should be noted that this is a domestic judicial review application, not an application to the Court of Justice of the European Union (CJEU).
The crux of the legal challenge is that the result of the controversial referendum has been invalidated due to the Electoral Commission’s ruling on the spending by the Leave campaign. The decision related to spending by the Leave campaign that remained undeclared, thus contrary to electoral law. The recent Electoral Commission findings on two particular groups (BeLeave and Vote Leave) resulted in two officials being reported to the police and having punitive fines being imposed. It is being argued by the expat group that this means that the referendum to leave the EU was not a lawful, fair, or free vote because there had been a flagrant breach of electoral law.
The Government, on the other hand, is resisting the action on the grounds that: first, it is out of time (as seen within the Prime Minister's response to the application, here) and second, a similar challenge has already been dismissed. As noted in my “Legal Corner” for Newell Legal, a judicial review application must be brought ‘promptly’. Those representing the expats in this instance, acted for the successful parties in the Article 50 legal case at the Supreme Court, seeing Gina Miller’s case defeat the Government. The legal team for the expat claimants maintain that the legal claim is not out of time on the basis that the findings of the Electoral Commission on spending were in July. Therefore, the expats argue that the decision to trigger Article 50 was not in accordance with UK constitutional requirements. However, all of these points will be a matter for the High Court to consider.
Further developments have seen Government lawyers receive a two-week deadline to respond to the latest legal challenge over the Brexit vote. A High Court Order, issued by Mr Justice Warby on Thursday 16th August 2018, requires those representing Theresa May, her party, and the Electoral Commission to submit a summary of their legal defence by 4pm on 31 August 2018. The Electoral Commission is listed as an “interested party” in these proceedings, not as a defendant. It is apparent that the approach adopted by Mr Justice Warby is to allow this matter to be expedited owing to the constitutional importance. This seems practical when one considers just how long litigation can take and that the UK will be deemed to leave the EU on 29th March 2019.
It appears that the UK in EU Challenge Group are hopeful that the matter will reach court in October. The High Court is able to deal with “rolled up hearings” within the judicial review realm. Essentially, these hearings address the requirement of permission to seek judicial review and the substantive/legal issues together in the same hearing. Whether this happens in practice remains to be seen.
This matter may become yet another twist in the tale of Brexit. The UK will have a better idea when it is addressed by the High Court later this year. It may also have the potential to reach the Supreme Court, either on appeal from the Court of Appeal, or by directly appealing from the High Court (known as a “leapfrog”). Whilst these issues remain uncertain, it is certain that this is another unwelcome development for Theresa May and her already under-fire cabinet.