the Supreme Court decided that the Government line was wrong, and that the Government did not have the authority to trigger Article 50
Stephen Chater of Postlethwaite Solicitors, a member firm of the UK200Group, was recently interviewed in the aftermath of the Supreme Court’s decision to uphold the High Court’s ruling that Parliament would have to vote on a bill to leave the EU.
The UK200Group is the UK’s leading membership association of independent chartered accountancy and law firms across the UK, whose firms act for a total of around 150,000 SME clients. As trusted business advisers, the UK200Group’s members are well-placed to comment on what the white paper really means for the business community.
The transcript of Stephen Chater’s interview can be found below.
Interviewer: So to start off with, quite a broad question, why is it that we had to have a court case like this in the first place?
Stephen Chater: It is quite unusual to have a constitutional law case of this high profile and it really stems from the fact that the legislation, which was passed by Parliament to allow the EU referendum in the first place, was completely silent on what would happen if the UK voters decided that the UK should leave the European Union. Typically, the legislation would cover consequences but Parliament decided, for one reason or another, that it was not appropriate in that legislation. When it came to the point that the Government needed to think about how to progress, there were different views and therefore it became a matter for the courts to decide which the right view was.
The Government’s argument was that, once the voters had decided in the Referendum what should be done in relation to whether the UK should stay in the EU or leave, it could progress until a final deal had been agreed. This was the exercise of something called the Royal Prerogative which is a constitutional law concept which allows the executive power in the country, originally the crown, now through the Prime Minister, to do certain things without the legislative approval of Parliament. So, that was the argument on one side.
On the other side, the argument was that the vote on the Referendum was simply to indicate the direction of travel. It did not give any assistance on how that should be achieved. Therefore, the fall-back position was that the elected representative of the voters ie Parliament should be required to authorise the way in which things should be done. The initial step in leaving the EU would be to give notice under Article 50 of the treaty and therefore the case revolved around whether the Parliamentary would be required in order to trigger Article 50. That is the part of the case which has received the highest profile.
There is another element which has had less publicity but has probably had greater significance from the point of view of the timetable. The Sewel Convention maintained that the devolved assemblies in Scotland, Wales and Northern Ireland needed to be at least consulted, if not have their approval required before certain steps are taken regarding what are called .devolved issues’. The question was whether leaving the European Union would involve devolved issues and would therefore require approval of those devolved assemblies which could be quite problematic.
Interviewer: So before we move on to what the actual Supreme Court decision was today, I just want to quickly touch on the amount of backlash that this case received, that the judges received and the claimants received. I am wondering whether you think that this is indicative of a fundamental lack of trust in the political system here in the UK because people are so reluctant to let their own elected Government have a say on whether Article 50 should be triggered?
Stephen Chater: That is a very broad question and I would like to make a couple of points in response to that. The first point is in relation to what I would regard as the polarisation of opinion. The views of a lot of people who voted Leave were that there was nothing that could prevent the UK from leaving the EU and it was straightforward from there. Anything that was put in the way must be wrong. On the other side there were a number of people who were on the Remain side of the argument who were keen to put a hurdle in the way of the UK leaving the EU. That is the first point of polarisation of opinion.
One of the things that caught people unawares was the attack on the judiciary and the fact that some of the media said that they simply weren’t independent and I think that that was a very great concern because the independence of the judiciary is fundamental in this country. I think that it is something that we should be very proud of and I am pleased to say that after that initial backlash little has been said further about that.
You also mentioned the lack of confidence in elected representatives. I think that there is a certain amount of concern that there are those that have a view that is quite different to the electors. For example, in my own constituency, our MP is very vociferous in favour of Leave but his electors were very pro-Remain. Although I do not think it is indicative of a lack of confidence, it’s indicative of an absence of listening to electors and I think that is something that needs to be taken account of in the future.
Interviewer: Do you know of any steps that have been taken to make that relationship and trust in our elected representatives to enact our will or anything that you think could be done in the future in this regard?
Stephen Chater: I am not aware of anything so far but it has given a number of MPs in that situation pause for thought and it has created quite a number of issues. One of the reasons that the Labour Party seems to have such a problem in establishing a Party line is that if you look at the 25 constituencies that were most in favour of Leave, 20 of those have Labour MPs, while 20 of the 25 constituencies most in favour of Remain also had Labour MPs. It is extremely difficult to square a single Party line with that range of view.
Interviewer: So if we are moving on to the Supreme Court decision that was announced today, the statement that was released was quite long. What do you think were the most important points that you would like people to know about?
Stephen Chater: Just one more thing before we go on to today’s decision, the previous decision at the High Court level was itself quite unusual because the three judges at High Court included the two most senior High Court judges who could have been chosen, the Lord Chief Justice and the Master of the Rolls, and it is very unusual for them to be sitting together. The other thing is that the hearing before the Supreme Court was filmed and that is unprecedented. The Supreme Court Justices sat, all 11 of them, again unprecedented, and all this is indicative of the sensitivity behind all of this.
Moving onto today’s judgement, in a nutshell the Supreme Court decided that the Government line was wrong, and that the Government did not have the authority to trigger Article 50 without the approval of Parliament. Having said that, three of the 11 Supreme Court judges thought that the Government did have that power. I think that goes to show how difficult these decisions are that if you get 11 of the best legal minds in the country together, you are bound to get some divergence of view. So that was the decision on the Parliamentary point. The decision on the devolved assemblies seems to have given the judges less difficulty because they decided unanimously that the approval of the devolved assemblies was not required. The result of that outcome is that there is less likelihood that the Government proposed timetable will be put off course.
Interviewer: Could you give us a bit more detail into the rationales for these two decisions? How did they explain their decision?
Stephen Chater: Yes. On the first one the judges really took the same line as the High Court and said that when the UK joined the Common Market, as it then was, Parliamentary legislation was enacted and in order to start changing that legislation, Parliament would need to be involved again and it wasn’t sufficient that there would be a Parliamentary vote simply on the final agreed deal. Parliament would need to be involved at the outset of the process of triggering Article 50. On the devolved assemblies, I think the view was that the relationships between the UK and other countries, including the other members of the EU, were not part of the ‘devolved issues’ which concern devolved assemblies. Therefore, they didn’t need to be consulted.
Interviewer: Have you heard anything about the reactions of the Government in Scotland, Wales and Northern Ireland?
Stephen Chater: So far, the reaction has been relatively muted. I think that the Welsh assembly seems to be arguing a slightly different way of approaching the discussions with the EU. The population of Wales seems to be in favour of leaving in any event and I do not think that there would be much reaction there. Scotland is a slightly different case because the Scottish National Party is pretty much in favour of Remain so I would imagine there would be some adverse reaction but I don’t think there is going to be much that they can do about it. The Northern Ireland assembly of course are waiting for their election in March so it really is a bit of a non-event as far as they are concerned.
Interviewer: Do you think that there is any reason to be concerned the decision to not involve the devolved assemblies might result in further division and maybe even ultimately end Independence Referendum after all?
Stephen Chater: I suspect that if it is left to the Scottish National Party they would want to use this as an excuse for an Independence Referendum at a time that they thought they might be able to win which is not at the moment because the economic conditions are not favourable for independence. One thing that they would need to explain to the electors is that although a majority of Scots who voted in the EU referendum, voted to stay in the EU, the number of those Scottish voters was actually less than the Scots who voted to remain in the UK in the Independence Referendum.
The Scottish National Party are saying ‘well most Scots want to stay in the EU’ but that is not the end of the story because even more Scots voted to stay in the UK and they chose to ignore that.
Interviewer: So a spokesperson of Number 10 has stated that ‘it is important to remember that Parliament backed the Referendum by a margin of 6 to 1 and has already indicated its support in the process of exit for the timetable we have set out’. Do you think there is any chance at all that the Parliament or the House of Lords voting not to set Article 50 in process and to remain in the EU?
Stephen Chater: I think it is pretty unlikely on the numbers that we have seen at the moment. The indications are that there was one Conservative MP that did not vote in favour and that was Ken Clarke. And we have been told by Jeremy Corbyn that he will not do anything to frustrate the triggering of Article 50. Although there have been some people saying that there might be some conditions attached to the bill triggering Article 50. I am not sure how you would compare that to not frustrating the triggering of Article 50 but we will see how that pans out. On the face of it, the only organised groups that will be voting against the triggering of Article 50 would be the Scottish National Party and the Liberal Democrats in the House of Commons which I think would be fewer than 70 MPs. There should, on the face of it, be a very large majority in the House of Commons. The House of Lords is a different matter. It is always more unpredictable and the thinking is that if it was left to their own consciences there would have been a large majority in favour of Remain.
Of course there is, for example, a disproportionally large group of Lib Dems in the House of Lords in comparison to their representation in the House of Commons. That is slightly more unpredictable but having said that I suspect that the government could say that the Referendum was in our manifesto and therefore we would invoke what is called the Salisbury Convention which is that the House of Lords cannot frustrate the wishes of the House of Commons on anything that was in the incoming Government manifesto.
Interviewer: In regards to those conditions you were talking about that might be attached to the invoking of Article 50, Tim Farron the leader of the Liberal Democrats mentioned something along the lines of wanting there to be an assurance that Article 50, the final deal, will have to go through Parliament and then they would be quite accommodating to setting Article 50 into place. Are those the kind of conditions you were talking about and were there any others that were mentioned?
Stephen Chater: I think that particular condition is not really controversial because the Government has said that it will put the final deal to a Parliamentary vote. I suspect that, that is meaningless because by that stage we will be out of the EU and there is no going back. If Parliament vote against the deal then the UK is left out in the cold with nothing, so I think that Parliament would have to vote in favour of that deal to keep things together.
Interviewer: So considering how highly likely it is that Article 50 will get invoked on time and everything will run really smoothly in that regard, do you think that the entire court case was then more of a formality to set a president that the Royal Prerogative cannot be used in that way? Rather than being any significant road blocked to Brexit?
Stephen Chater: I think that the case has been an interesting one because we have constitutional law cases at this level so rarely and some of the things that is being said have been quite revealing but it has been a very, very narrow point on this sort of issue. It doesn’t arise very frequently and therefore I think a lot of people got very excited over a pretty obscure issue. It has been a bit of a mystery towards a lot of people as to why the Government thought to appeal to the Supreme Court after they lost fairly heavily in the High Court, and most informed commentators thought that they would close in the Supreme Court as they have done. All that the Government has done really is to waste a bit of money, but bought a bit of time which might be in its favour. However, in theory this is not the end of matter as it is possible for the Government to appeal against the decision of the Supreme Court by appealing to the European Court of Justice so I really don’t think the Government would want to be seen to be doing that.
Interviewer: Yes, definitely not. Finally, are there any predictions you can make about how this ruling could influence things going forward, perhaps how the Parliament now holds Government more accountable over Brexit because of this or anything else in that direction?
Stephen Chater: I don’t think it really tells us much about accountability, I think what it does help us with is trying to flush out some of the issues that we now have with the fact that we do seem to be having more referendums. Referendums traditionally haven’t formed part of the UK constitution. We have general elections to elect our representatives and then between those elections we have traditionally left it to our representatives to make decisions on our behalf. Once you start introducing referendums on particular issues then that rather cuts across the role of the elected representatives and I think what this has done is to indicate even though you might have a very clear question with yes, no answers, that still means that the elected representatives in Parliament continue to have a role but you don’t have the population as a whole, overriding the Parliament.
Interviewer: Did the inclusion of referendums into the UK’s political process come about as a part of the UK becoming a part of the EU or how did that come about?
Stephen Chater: It came about because of political expediency. The Referendum before the EU Referendum was on the voting system and that came out of the coalition between the Conservatives and the Liberal Democrats because it was part of the horse trading that the Liberal Democrats would be given a referendum on that particular issue. In relation to the Scottish Independence Referendum there was no legal need for that, it was political expediency so that the Westminster Government allowed a referendum in the hope and expectation of the the population of Scotland would vote against, as they did. It is not really a legal requirment to introduce a Referendum and has nothing to do with our membershop of the EU, it is purely domestic political expediency.
Interviewer: Do you think there is going to be more of a trend towards having Referendums or do you think that seeing what has happened to Cameron in the wake of this Referendum do you think that our politicians have been put off it now?
Stephen Chater: I would hope that politicians have now seen how disastrous referendums can be and that we have seen the last of it. However, being realistic, I suspect that we are going to be stuck with more referendums sadly.
The UK200Group, established in 1986, represents a significant group of trusted, quality-assured business advisers – chartered accountants and lawyers – who have over 150,000 SME clients in total. As such, the UK200Group acts as the voice for 1,899 charities, over 12% of all registered academies, more than 3,887 farms, 800 healthcare businesses and over 4,000 property and construction professionals. The UK200Group remains impartial on political matters, and presents the individual views of its members.
Stephen Chater is available for interview on request.
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