Saturday, December 10, 2016

The Supreme Court and Brexit Appeal

The arguments  that were put to the  Supreme Court, Westminster over four days this week probably raise legal and political points that are the most profound that the court (created in 2009) or its predecessor  court  of The House of Lords, has dealt with  since WWII  if not  for generations before that.

The question to be considered by their Lordships seems simple enough, namely whether  Parliament has to approve the serving of article 50 notice by the UK government on the European Union or whether HM government can using the Royal Prerogative act alone.

Possibly the government so expected the referendum outcome to favour remaining in the EU that they failed to ensure that the legislation covered the position in the event of a Brexit outcome to the referendum.

Listening to many of the arguments and proceedings which  unusually were broadcast live throughout, on the BBC website (Supreme Court proceedings are generally broadcast live but only on an obscure Sky TV channel) reminded me of how fortunate the UK is to have such a civilised supreme court forum.

The  only time  my professional career  directly included a supreme court case, the issues  went all the way from an almost obscure employment tribunal in Truro, to the highest court in the land - see Methodist Success at The Supreme Court . The wisdom and professionalism of their Lordships and  Ladyship in that  case very much impressed, possibly at least partially influenced by the successful outcome of the appeal.

Criticisms of the Supreme Court however there still are, namely that of the 11 sitting in judgement there is only one lady; the other 10 are all white middle to elderly, age men. Of course it takes many years for barristers to qualify then gain experience; specialise, become QCs and then be appointed recorders or judges. Nonetheless many women  are becoming  barristers and solicitors  these days, which has been the position for some time; ethnic minority lawyers too are thankfully becoming  more in number so the position needs to change.

Probably the disproportionate  male dominance  of the Supreme Court judiciary today still reflects  the indirect discrimination  of the previous generation as it clearly takes many years for an individual to gain the knowledge and ability to be able to fulfill the role.

Having considered the need to avoid even indirect discrimination in appointing the judiciary, the hugely positive point to be made is that this  important, difficult, closely followed case,  was handled really well by the supreme court. In fact I doubt that the top court in any other country would have been able to tackle such a controversial nationally important case  so well and in such a civilised fashion.

Lord Neuberger the senior justice handled the case and large numbers of lawyers involved  excellently.

The tough questioning of the lawyers representing the parties including HM Government, Northern Ireland Scotland and Wales was always civilised and interspersed at appropriate moments by  some light hearted comments or humour.

The threats voiced against one at least of the two   brave  claimants as well as against their lordships were dealt with  at the outset. All credit to Gina Miller for bringing the case and standing up to such cowardly treatment by individuals who sadly  have dreadfully weak character traits.

What then is likely to be the outcome? My view is that  the success  of Gina Miller and colleagues in the court below will be upheld.

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