Challenge To Brexit Based On Campaign Spending Irregularities In The Referendum Funding Has Failed At The First Hurdle

The Court of Appeal has held that it is unarguable that the Prime Minister's decision to notify the EU of the UK's intention to withdraw from the EU was unlawful on the basis that the 2016 referendum was invalidated by certain leave campaigners exceeding campaign spending limits: R (Wilson) v Prime Minister [2019] EWCA Civ 304.

The Electoral Commission found in May, July and November 2018 that various leave campaigners (including Vote Leave and Leave.EU) had overspent contrary to the Political Parties, Elections and Referendums Act 2000 and that offences appeared to have been committed. Based on this, the applicants argued that the referendum was invalid and that the Prime Minister's decision to notify the EU of withdrawal was unlawful as a result of being based on an invalid referendum, or alternatively that the Prime Minister acted irrationally in deciding not to revoke the withdrawal notification following the Electoral Commission's findings.

Ouseley J refused permission to proceed with the judicial review on the basis of delay and lack of merit. The Court of Appeal affirmed this decision, finding that the claim was unarguable on the basis that the referendum was advisory and Parliament had retained ultimate control over whether the UK left the EU. The court therefore had no common law power to intervene. Even if the court did have a power to intervene in relation to the results of a non-binding referendum, a minimum requirement for the exercise of any common law power would be that a breach of voting rules was material such as to affect the...