37

This question is based on the assumption that Boris Johnson gets prosecuted and found guilty of misleading the public during the EU referendum.

Could this be used in court to argue that the results of the referendum are wrong and based on misleading campaigning, and therefore get a court decision to force the government to revoke Article 50?

  • Comments deleted. Please don't use comments to answer the question. If you would like to answer, please post a real answer whihc adheres to our quality standards. – Philipp Jun 27 at 15:33
80

No. The referendum was legally not binding, it just caused a political situation which made the article 50 notification seem a political necessity. The UK could have stayed or left regardless of the referendum result, so a court could not conclude from campaign "violations" that the notification was invalid.

Also, many election campaigns contain predictions or promises that may or may not become fact, and courts involved into that is a very bad thing for democracy. It is for the electorate to judge the credibility of campaign speeches, as long as they don't sink to libel and similar offenses.

  • Specifically see Wilson v. Prime Minister and the judge's comments on the merits of the case. – Peter Taylor May 30 at 20:07
  • So the leave campaign's lying could be used to undo Brexit because it could be used to create a political situation in which the Article 50 notification is seen to have been based on unethical and possibly illegal misinformation, and its revocation therefore a political necessity. – phoog Jun 2 at 21:40
  • 1
    There is actually no such thing as a "legally binding referendum", if that means binding MPs to actually carry it out if they later decide by majority that they do not wish to. – Steve Jun 3 at 2:05
  • 2
    @phoog Please give it up. Parliament can do whatever it pleases. Speculating about what it takes to convince them is not on topic here. – Sjoerd Jun 3 at 2:06
  • @Sjoerd I don't know what you think I should give up. Parliament can do whatever it pleases, but members will normally take into account the political will of the people they were elected to represent (consider the outgoing prime minister). I'm not speculating about convincing parliament; I am pointing out that the lying can be used to make a political case that the referendum should be ignored, to counter the political case that the referendum -- non binding as it was -- must be "respected." It's not a legal basis to stop Brexit, just as there's no legal way to force Brexit to happen. – phoog Jun 3 at 3:01
12

Not directly, but misconduct in public office carries a maximum life sentence; a sentence of more than a year would disqualify him from being an MP and force a by-election.

Futhermore, the Recall of MPs Act 2015 may come into play if he recieves a custodial sentence of a year or less, or the Committee on Standards reports to suspend him from the House for at least 10 sitting days or 14 calendar days. This would force a recall petition in his constituency, and if signed by at least 10% of the electorate would force a by-election.

Boris' constituency, Uxbridge and South Ruislip, is relatively new but has been a safe Conservative one since its creation, although the large majority was halved at the last election.

The government currently has a working majority of 0; a loss of even a single MP risks losing a vote of no confidence, should one be called. This may lead to a general election, the outcome of which for Brexit not even Paul the Octopus could predict.

Note that there is currently a by-election to be held on 6 June in Peterborough (currently a slim Labour majority) after the first sucessful recall petition, and a recal petition underway in Brecon and Radnorshire (currently a safe Conservative seat, but "safe" Lib Dem before coalition so susceptible to the Lib Dem "surge").

  • 5
    The state of the parties page on the Parliament website doesn't take into account non-voting MPs (Speaker, 3 Deputy Speakers, Sinn Fein). In that respect, Wikipedia is better, and shows that, with the DUP, the government has a working majority of 6. – Steve Melnikoff May 31 at 15:34
2

No.

The UK House of Commons voted 461 to 89 on December 7, 2016. Which satisfies the "in accordance with its own constitutional requirements" part of Article 50.

Whatever whoever said or did (or whether it's even a criminal offense) isn't relevant. Whoever voted what in that referendum is not relevant, nor what anyone's opinion about it is now, who may or may not feel cheated, who may or may lose a MP, or what a possible future referendum might result in. A referendum is merely an indicator, or more truthfully, a justification with no real bearing.

What is relevant is that the constitutional requirements were met, and Article 50 was invoked.

  • What if it turned out, in hindsight, that the constitutional requirements were not met at the time? – JJJ Jun 1 at 12:00
  • @JJJ: Well, they were met, and they were communicated as having been met, and they were accepted as such. But good question anyway, I guess in case it turned out UK had fraudulently invoked Art 50, the Union would have a case in tortious damages against them (under the allegation that UK wilfully caused damages by being untruthful). Though I'm not sure what would come out of it. It's quite possible (likely even?) that the consequences for the Brexit process would be zero since all involved parties agreed on the facts at the time. It's like intending to commit a crime where [...] – Damon Jun 1 at 16:31
  • [cont] for example it turns out you didn't kill that person which you shot through the window because she was already dead (which you didn't know). Or you intended to buy drugs and paid for drugs, turns out you bought flour. It often makes very little difference what actually happened as long as everybody agrees on the intent. – Damon Jun 1 at 16:33
  • I was thinking more along the lines of the UK not knowing it was fraudulent at the time either. Then, article 50 requiring the decision to be in line with the UK's constitutional requirements, I think it would depend on what UK law says about parliamentary procedure being followed wrongly. For example, what if a vote is passed by one and one of the MPs voting in favour turned out to have been someone else? The answer is probably much speculation, it'd come down to a judge. – JJJ Jun 1 at 16:34
0

I think there are two relevant factors here.

Firstly, in an election where you are voting for a candidate to assume office, then a candidate who is found by the courts to have broken the rules in a substantive way will typically be disqualified from office. It's far less clear that that is a reasonable remedy when the person wasn't a candidate for office, but merely a prominent campaigner for one side or the other.

Secondly, invalidating an election because someone made an unrealistic promise (let's spend an extra £350m on the NHS, let's make Britain great again, let's abolish student loans) would surely invalidate every election there has ever been. Democracy can only work if we assume that the electorate treat such claims with a degree of scepticism. After all, it's open to the other side to challenge the claims.

However, I guess the question is about legal process: what could the courts decide to do? Well, it depends how creative they want to be. I've heard it argued that Article 50 requires due constitutional process to be followed before a state gives notice of withdrawal; a court could decide that due constitutional process was not followed and that the invocation of Article 50 was therefore null and void. That would put us into a major constitutional crisis. However, I find it hard to see a court coming to this conclusion, simply because the government did not constitutionally require a referendum in order to invoke Article 50; it was a decision it had the power to make anyway, and in that sense the referendum was legally irrelevant.

-1

No. The Brexit Justice case is purely and only about misconduct in people's office and knowing use of outright lies to further a political cause.

There has already been an attempt in the high court to overturn the result based on the “corrupt and illegal practices” of the vote leave campaign.

https://www.independent.co.uk/news/uk/politics/brexit-high-court-case-legal-challenge-referendum-vote-leave-spending-theresa-may-eu-a8676226.html

The judge refused to overturn the result, however both reasons were on technicalities:

  1. He said too much time had passed (despite the fact that the illegal spending was only discovered after the deadline)!
  2. The referendum was only advisory so the various protections for binding referendums don't apply.

https://www.lbc.co.uk/radio/presenters/james-obrien/brexit-referendum-corruptly-won-but-result-stands/

Here is an interview with the lawyer who brought the case and James O'Brien:

James summed up: "If the referendum had been legally binding, then the findings of the Electoral Commission would have rendered it invalid. Because if it's been corruptly delivered, how on earth can we be held to it?

"But because it wasn't binding, we can be held to something that is corruptly delivered. Woah!

"The will of the people is meaningless if the people were victims of corrupt practices or lied to.

"The court essentially found that the Prime Minister is not obliged to take account of the mounting evidence that casts doubt on the legitimacy of the referendum."

Ms Simor added: "It's slightly worse than that. The High Court found that we were too late. They said we should have brought the claim three months after the expenses had been lodged at the Electoral Commission, which was December 2016.

"But at that point, nobody knew anything about this.

"We've been told we had to do something which was impossible. And would have failed at that point because it was impossible."

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