Press Release: Summons against the Prime Minister

Official Press Release

London, 25st March 2019

Summons Document David Wolchover Article

On Friday 22 March 2019, the barrister David Wolchover attended City of Westminster Magistrates' Court on his own behalf and that of Professor Joshua Silver of Oxford University, in order to apply to the magistrates for a summons against Theresa May alleging she is guilty of the Common law indictable offence of Misconduct in Public Office. The offence carries a maximum penalty of Life Imprisonment.

Following submissions at a short formal hearing the application was adjourned to 2pm on Tuesday April 9th for a full oral hearing in front of the Deputy Senior District Judge for England and Wales.

The statutory basis of the European Referendum 2016 was that it was merely “advisory.” This meant that in determining government policy on whether to commence the process of taking the UK out of the EU by activating Article 50 of the Treaty of European Union the Prime Minister and her cabinet were constitutionally bound to review all relevant factors, not merely the outcome of the Referendum.

Those factors chiefly consisted of expert assessments of the impact of the UK’s departure from the EU. But the evidence shows that in activating Article 50 on March 29, 2017, the Prime Minister wilfully ignored all such assessments and wrongly made her decision
exclusively on the outcome of the Referendum, namely the statistically insignificant slight tilt in favour of leaving.

In doing so she well knew that she was in breach of her fundamental constitutional obligations. In short, she deliberately broke the law with potentially catastrophic consequences.

Additional Information

The summary of the circumstances as set out in the application for summons of Theresa May are as follows:
  1. In pursuance of the European Union Referendum Act 2015 (EURA) the EU Referendum was held on 23 June, 2016. Of those who participated in the ballot 51.89 per cent voted in favour of the United Kingdom withdrawing from the Union as against 48.11 per cent voted to remain. Those voting to leave represented no more than 37 per cent of the registered electorate.
  2. Constitutionally, the Referendum was merely advisory (and not binding). As such it could only be influential in guiding the formation of government policy on the question of whether the UK ought to remain in or leave the European Union.
  3. Nonetheless Government ministers have consistently sought to treat the outcome as decisive rather than influential, pledging themselves to honour “or respect” – that is to say, to implement – the majority opinion of those who cast their votes in the ballot.
  4. Those statements enjoyed no more than political force, as the Supreme Court confirmed in the case of Miller v The Secretary of State for Departing from the European Union (hereafter Miller). However, they did not exempt the government from the fundamental and conventional duty required in all reasonable and proper policy-formation and decision making, of considering all relevant factors.
  5. As the Administrative Court held in the case of Webster v The Secretary of State for Departing from the European Union, section 1(1) of the European Union (Notice of Withdrawal) Act authorised (but did not command) the defendant, in her capacity of Prime Minister of the United Kingdom, to make the withdrawal decision on behalf of the United Kingdom in accordance with Article 50(1) of the Treaty on European Union. In pursuance of that delegated power, the defendant, on 29 March 2017, wrote to Donald Tusk,  President of the Council of Europe, notifying him under Article 50(2), TEU, of the United Kingdom’s intention to withdraw from the European Union.
  6. In making the withdrawal decision in pursuance of her delegated power the defendant failed to pay any significant or systematic regard to any factors relevant to the decision, notably a range of political, economic, social, strategic and security impact assessments likely to follow withdrawal.
  7. This was in spite of the fact that she was obligated to do so (a) by the statutory nonbinding nature of the referendum and (b) by the inherent obligation of good and effective governance requiring an informed and comprehensive review of relevant and reasonably tangible predictions.
  8. The evidence of such failure emerges (a) from the many equivocations and inconsistent statements uttered by ministers on the floor of the House of Commons (described in the annexed article) and (b) from a Freedom of Information disclosure by the Cabinet Office on 23 January 2019 revealing that no impact assessments of the kind comprehensively detailed in the FOI request are held on file in the Cabinet Office, which they would assuredly have been had the Prime Minister perused any such assessments.
  9. The consequences of the defendant’s failure to consider the impact of activating Article 50 are now being demonstrated graphically by the turmoil and negative predictions being reported on a daily basis.
  10. The defendant’s failure was so serious and so knowing and deliberate as to amount to the offence of Misconduct in Public Office.

The detailed argument is set out in David Wolchover’s short treatise “Did activating Article 50 constitute an indictable offence?” published in the New Law Journal on 12th March 2019 and accessible here: