The heart and soul of reasoned debate: Brexit at the Supreme Court

The opening day of the government’s bid to trigger Article 50 without putting it to Parliament was fascinating. It is hard to imagine how the other side could possibly answer the logic of precedence at the heart of this debate.

At one point, one of the Judges even pointed out a strong precedent for what the American’s call ‘executive action’. The government’s lawyer, James Eadie, admitted that this particular precedent had escaped his attention. And added it to his list.

It all revolves around what Parliament has sought to involve itself in in the past, and what it has otherwise devolved either to the government of the day or to Brussels.

And, honestly, the calm and methodical parade of Parliament’s decisions in regard to the EU and other relevant matters made it appear incontestable that this government has the right to trigger Article 50 without recourse to Parliament.

But, and this is the heart and soul of reasoned debate, if the other side had put its case first, I’d be thinking, ‘Well, how’s the government going to answer that?’

And that’s the difference between what’s going on at the Supreme Court, and what the rest of us are saying down the pub, or over dinner and drinks, or on social media. And for that matter, a Daily Mail headline, or a Guardian headline.


The only worry is that, whatever they say, there are Judges on the panel who are vested in the EU. It is, for instance, a rule of thumb that close relatives of Judges should never comment in public on matters that their judicial partner may end up having to adjudicate.

Very obviously, at some point in the coming months and years, some of these Judges were going to be asked to rule on some aspect of the UK’s relationship with the EU.

But that didn’t stop the Court president’s wife sharing her distress at the Brexit vote. The referendum, she tweeted, was ‘mad and bad’. She later tweeted ‘It seems unlikely that a PM could trigger Article 50 without Parliament’s approval’.

Some of the Judges are, in fact, bound up with the EU, either through work they do, or as very public supporters of the Human Rights Act. There is, it seems, no such thing as impartiality.

Which means, frustratingly, that whichever way the Supreme Court rules, the decision will be questioned by partisans for the opposite view. And they will have detailed legal reasons why the decision is wrong.

So don’t hold your breath for a definitive, unanswerable decision. But do, in the meantime, savour the civility of the debate, the intellectual power at work, and the fact that no-one is shouting or being offensive to the other side.

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