.We’re in danger of pre-arguing the case that you’re pinning your hopes on, but I’d say that even if you’re right about everything, Parliament still approved it and the courts can’t undo that, only Parliament can. As for triggering Article 50, that’s high foreign policy and the courts just don’t get involved in scrutinising that sort of decision. The courts might agree with all that you say about the background, but they’re not going to go further than that.
I have no idea if the courts will make the triggering of ART 50 invalid but the point we are discussing now is do they have the power to do this, yes they do, the problem is this law only applies to legally binding votes, the courts are being asked to rule on whether our politicians treated the result as advisory.
Facts recently revealed since the Prime Minister exercised her power under s. 1
of the European Union (Notification of Withdrawal) Act 2017(“the 2017 Act”) to
notify the European Union (“EU”) of the UK’s intention to leave the EU
show that the 2016 referendum (“the Referendum”) on whether the UK should remain a
member of the European Union (“the EU”) was vitiated by illegality and/or
unlawful misconduct. More particularly, the Electoral Commission has recently
found (to the criminal standard of proof) that serious offences were committed
by the designated campaign for leaving the EU and by others, in breach of the
statutory framework established by Parliament for the Referendum.
3.Therefore, the Prime Minister’s decision that the UK should with
draw from the EU (“the Decision”) and the notification of that decision (“the Notification”),
was premised on a fundamental error of fact and was not made in accordance with
the UK’s constitutional requirements as required by Article 50 of the Treaty on
European Union ("TEU") and/or are vitiated by those matters
GROUNDS
(1)
The Prime Minister’s Decision and Notification under Section 1(1) of the
2017 Act were not, or should not be treated as, lawful and/or in
accordance with the UK’s constitutional requirements.
(2)
They are vitiated by conduct which would fall within the definition of
‘corrupt and illegal practices’in the Representation of the People Act 1983
and similar legislation, which the Electoral Commission has found to have
taken place, to the criminal standard of proof, in breach of the statutory
requirements established by and under the Referendum Act
2015, as well as other conduct, including that identified by the Information
Commissioner, regarding personal data.
(3)
The Referendum in 2016 was advisory or consultative (as opposed to
binding) and the Decision and Notification are vitiated:
(a)
by depending solely upon the flawed consultation in the
Referendum;
4)
By reason of the aforesaid conduct, it is irrational for the Prime Minister to
treat as binding the result of a Referendum which, had it been binding,
would be void,and/or the result of which may have been affected thereby.
Alternatively, to do so is not lawful or in accordance with the UK’s
constitutional requirements(including section 6 of the HRA and A3P1,
below). Parliament should not be taken to have disapplied principles of
legality and constitutionality in conferring the said power on
the Prime Minister.
7.
The basis of the
Claimants
’ claim is as follows
:
-
(1)
Article 50 TEU provides
the mechanism in EU law for a Member State to withdraw from the EU and for the EU Treaties to cease to apply to that State. Article 50
1. Any Member State may decide to withdraw from the
Union in accordance with its own constitutional
requirements.
(
As Richard Mawrey QC, sitting as the Election Commissioner, stated in
Erlam v Rahman
[2015] EWHC 1215
(at [20]):
“...If a candidate is elected in breach of the rules for elections
laid down in the legislation, then he cannot be said to have
been 'democratically elected'. In elections, as in sport, those
who win by cheating have not properly won and are
disqualified. Nor is it of any avail for the candidate to say 'I
would have won anyway' because cheating leads to disqualification whether it was necessary for the victory or not.
In recent election cases, for example, it has been proved that
candidates were elected by the use of hundreds (in
Birmingham, thousands) of forged votes: would anyone
seriously claim that those candidates had been
'democratically elected'?”
http://www.croftsolicitors.com/wp-content/uploads/2018/08/239484-Grounds-for-Judicial-Review-and-Statement-of-Facts.pdf
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