Home > Brexit, Europe, Uncategorized > Brexit and the Supreme Court: What will be the price of ‘objective’ judgement if no new precedents are set?

Brexit and the Supreme Court: What will be the price of ‘objective’ judgement if no new precedents are set?


Dipping into the proceedings of the Supreme Court last week was hardly the emotionally charged experience that Leavers and Remainers had been conditioned by the media to expect. But should we really be surprised when case law is being used to define arguments that have never previously been made and do in fact need our Judges to make a judgement in the purest sense?

As with all too many arguments in the political sphere these days, there is no small amount of semantics in play. Labelling of one kind or another has progressed to a level where the very act of simplifying language has progressed beyond the point of being intelligent and really given the lie to the idea that one word really can and does mean the same thing to all people.

Never mind ‘hard Brexit’ this or ‘soft Brexit’ that. Judicial process is itself hiding the truth that case law did at one point or another have itself to be created. It was at these very moments that it was the objectivity of the Judiciary or other high-level-offices of responsibility upon which we have relied and trusted to make the decisions which would today become the precedents that the debate over parliamentary interest in the triggering of Article 50 has rested.

At a time when the level of public confidence in politicians can be generalised as being the core issue that brought Brexit about, we all need to see leadership within the system of law which reaches beyond the scope of sticking to what is considered safe, or fundamentally right, simply because it’s the way that it is expected to be done.

So when we look to the Judiciary for the impartial type of leadership which is sadly lacking from government, why have the Courts not focused on the chronology of events, and above all what cannot reasonably be disputed as the democratic will of the people?

The easy response would be to suggest that the Judges concerned are expressing views which have been informed by bias. Indeed many of our media outlets have gone to great lengths to explore the backgrounds and links of the Judges who sat on the case previously, as well as the 11 who have sat in the past week at the Supreme Court.

The upshot of this approach which is inherently linked to the Brexit camp, being the inference that a decision which goes against the perogative of the Prime Minister to trigger Article 50 directly and without further reference to Parliament is pro-Remain.

Be it right or wrong in terms of principle, the hardest pill to swallow for anyone looking in from the outside who supports Brexit is that the Judges have not done anything wrong by ruling the way that they already have. Nor will those sitting in the Supreme Court do so if they then uphold the previous ruling.

Yes, the Judiciary may well be hiding behind process and this could indeed give legitimised cover to the less objective members of a bench who might put personal or subjective views before what Brexiteers would see post 23rd June as being clearly right. But that is their gift and we are unlikely to ever know the truth to this question and the fact is that the system does – as its stands – both allow and facilitate an intelligent form of responsibility-ducking which sadly permeates all forms of government today.

Technical truths are the harsh and uncompromising reality of a protectionist and self-serving age where taking responsibility is considered dangerous and actions are legitimately excused by reference to the precedents set by others rather than what experience tells us exists in front of our own eyes.

The objective view would recognise the democratic decision and therefore the mandate of the people above all else. Equally it would reference the fact that Parliament has already had its say when it passed the legislation for the Referendum in the first place and then made that choice directly subject to the will of the people. Ironically, it would also reproach the significant transfer of legislative power which has been undemocratically transferred to the EU beyond the previous mandate given by the British people for a common trading relationship, respectful of national sovereignty, which people on all sides of the argument still actually want.

It is possible that the Supreme Court will support the Government view and allow the triggering of Article 50 without any further debate. But it is unlikely.

Like it or not, we simply do not exist within a time of true leadership. If we had, we would not be anywhere near the constant two and fro of discussions surrounding our exit from Europe and the rise of a new American President whose arrival together in 2016 are being heralded as the turn of a populist tide.

We certainly wouldn’t find ourselves questioning what constitutes good judgement.

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