But what if the Supreme Court upholds the High Court’s judgement?

Monday, 23 January 2017

It has been billed as one of the most important constitutional law cases in decades, with a panel of 11 justices – the largest ever assembled – and under a level of public and media attention rarely seen by the law courts. But just how important is the Supreme Court’s judgement on whether Theresa May’s government has the power to trigger Article 50 without the support of Parliament?

Stephen Chater is a solicitor at Postlethwaite Solicitors Limited, a member firm of the UK200Group, the UK’s leading membership association of independent chartered accountancy and law firms.

He said, “The majority of the UK electorate who voted in the June 2016 referendum chose to leave the EU, but what does that mean in practice?

“The concepts that influence this decision derive from the seventeenth century conflicts at the time of the Civil War and the Bill of Rights: the sovereignty of parliament and the Royal Prerogative.

“The government argues that the verdict of UK voters is sufficient authority for them to begin the withdrawal from the European Union, and all that that entails, without seeking further authority. That is on the basis of the Royal Prerogative, which is exercised through the Prime Minister.

“The other side of the argument is that the referendum only decided one very narrow issue, which was whether the UK should stay in the EU or leave. From then on, it was for politicians to decide how to implement that verdict, and in order to do that, Parliament needs to have a vote to provide the authority for the government to proceed.

“There is a philosophical debate about where the democratic route lies. Traditionally, in the UK, we’ve had a representative democracy where we, as a population, select our representatives and allow them to make the decisions on our behalf with the full knowledge of circumstances, which the voters do not have.

“But when you have the whole population entitled to vote on an issue, there is an argument that that represents the fullest possible form of democracy. The problem with that is that people are voting on a narrow point from a broad range of viewpoints. For example, there are people who voted Leave because they wanted more regulation, for example in relation to immigration. There are also people who voted Leave because they wanted less regulation, for example to reduce red tape for businesses.”

But, Stephen Chater argues, there is another key part of the Supreme Court’s decision to look out for.

“Another crucial issue is how far the consent of the devolved assemblies is required. There were representations made, primarily on behalf of the Scottish and Northern Irish assemblies, that their consent was a prerequisite for triggering Article 50. That all derives from a convention which dates from 1999, when the government started the devolution process: the Sewel Convention.

“The Sewel Convention suggests that Westminster will not legislate on devolved matters without the agreement of the devolved assemblies. Whether the triggering of Article 50 concerns ‘devolved matters’ in this case is something that the Supreme Court will have to decide.”

There was a significant acknowledgement of the sensitivity of this decision, because all of the Supreme Court judges sat on this case, which is unprecedented.

But what if the Supreme Court upholds the High Court’s judgement?

“I can’t see that a requirement for a vote in Parliament is going to affect the timetable for Brexit one iota, because if there is a vote in the House of Commons on whether to trigger Article 50, it is almost inconceivable to think that MPs would not vote in favour of leaving the EU. Labour have said that they won’t vote against it, so it is likely to go through with a huge majority.

“The House of Lords is a slightly more difficult question because a majority of the House of Lords are thought to have favoured Remain. However, I find it difficult to imagine the House of Lords being able to delay that process significantly. The government could refer to the Salisbury Convention, which would prevent the House of Lords from defeating the bill as it was mentioned in the Conservative Party manifesto ahead of the 2015 General Election.”

The timetable might, however, be affected if the Supreme Court decides that the prior consent of the devolved assemblies will be required. This would take the UK into genuinely uncharted territory.

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, 3,887 farms, over 12% of all registered academies, 800 healthcare businesses and over 4,000 property and construction professionals.

ENDS

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About the UK200Group:

The UK200Group was formed in 1986, and is the UK’s leading association of independent chartered accountancy and law firms, with connections around the world.

The association brings together around 150 member offices in the UK with more than 500 partners who serve roughly 150,000 business clients. Its international links in nearly 70 countries give its members access to expertise across the globe.