Brexit Litigation in the Court, and Brexit Litigation in the Court of Public Opinion

Every person has the capacity to act intelligently, to consider calmly and to do what is right, so long as they are equipped with the proper tools. The problem is that instead of comprehensive and investigatory news built on facts and a neutral eye, they have been fed shocking and angry tabloid headlines that pander to their basic animalistic predilections for protectionism and tribalism. Instead of being immersed in a culture of intellectualism and willingness to accept progressive change that might benefit them, despite it being alien and overwhelming, they are swaddled by the Kardashians and information within traditional parameters of what seems logical based on outdated notions that were only relevant to a world that has since changed. Instead of having had fostered for them a culture of involvement in civic duty and public discourse, and having responsibility for their society, they are removed and taught only to focus on what they can materially gain. They are bred on a culture of lethargy and apathy toward matters of Government based on ideas that nothing changes and the institutions of state do not represent them, that they are something distinct from the people themselves, when in reality, removing this perception would remove this problem, since the people would realise they can be as involved as they like and they do form an important part of their society.

So, when suddenly a matter of extreme constitutional importance, a matter that affects the future of global geo-political relations, that affects humanity’s culture and the next steps that we take, is thrust upon them, they react as only they could be expected to, having been bottle fed on nonsense and lies and having had their knee-jerk, archaic instincts pandered to. The people have been bred in a culture that wilfully allows them to retreat to comfort and ignorance.

When David Cameron announced that the people would have a direct say over Britain’s membership of the EU, he was not affected by an unusual desire to empower the British people. He was affected by panic over losing power with the rise of UKIP and right wing populism generally. He was affected by fear of the oncoming shift in the political status-quo that he could see on the horizon. He was scared that neoliberalism and globalisation would soon be undermined by the will of the people. And instead of combatting populism, which is an erroneous, knee-jerk and uninformed solution to undeniable problems surrounding immigration specifically, and globalisation generally, as well as the lack of democracy in global institutions, he pandered to it. He chose the tactic of the East German Soviet government, to attempt to appease the people with the illusion of control, hoping that they would then shut up and sit down. But, as in East Germany, it only meant that they grasped the opportunity and rode the wave until it crashed down around their superiors. Because deep down the people know that they want control over their destinies. They simply have not been equipped with the right tools to exercise it with the requisite foresight and understanding.

The people voted to leave, and they expected to leave. They did not expect that their decision would be reviewed by the High Court in the first instance, and now the Supreme Court on appeal. And so we find the first example of the disparity between the law, and the law as reported by the media and by manipulative campaigns. The referendum took place pursuant to the European Union Referendum Act 2015, which the High Court reiterated does not confer a statutory power (as does no other piece of legislation) to give notice of withdrawal from the EU under Article 50 of the Treaty on European Union. This is not what the people thought. The literature disseminated by the Government of the day told them that their say was final. The decision was reported by the media as one that would be final.

The media, especially the British tabloids, instead of telling the people the true state of the law and the true position of the referendum – never mind giving them a true account of the specificities and complexities of either side of the argument – pandered to their flag-boners and to illusive, chimerical notions of abstract control and tribalism, which in any real sense no longer exist. In doing so, once the decision of the High Court had been handed down, the Daily Mail, the Express and the Sun et al. had set the tone to be able wantonly and without consequence or shame to brand the judges as traitors to their country and usurpers of democracy. The irony is that in actual fact the journalists, owners and editors of these papers are the true traitors to their country and to their countrymen, and their publications actively and maliciously undermine the proper exercise of democracy.

The judges in the High Court, far from deciding on the merits or demerits of Brexit, were deciding on the proper, lawful process according to the British constitution by which it should be brought about. That is, they were deciding whether the Government could ‘trigger’ Article 50 unilaterally using the Queen’s prerogative or whether Parliament is required to vote on the matter. The second irony, then, is that in condemning the judges for deciding that Parliament needs to vote, the papers were impliedly supporting the use of a monarch’s undemocratic executive power and rejecting parliamentary sovereignty, which is the very thing that was being voted for in voting to leave the EU.

The Brexit litigation was reported as if the judges were deciding on Brexit. The legal issues were not communicated properly to the people. You have been lied to from the very start of this referendum by the institutions who owe you a duty to equip you with ample and correct informational tools to be able to form a constructive and responsible part of this society.

The tabloids’ treatment of the Brexit litigation goes far beyond issues of shoddy journalism. It strikes at the very heart of our political and legal structures. The law is given legitimacy through consent. We all impliedly, by not revolting, consent to the legal structures in place and the laws that mediate our social relations. This is important because without consent a legal and political system is not legitimate and it then has one of two recourses. One, it breaks up at the behest of the people and a new system is formed. Two, and far more likely, those responsible for its continuation and who benefit from that continuation use coercion to keep it in place. Behind every law and every institution of state is the inference of force. That is what gives a Government made up of thousands of people power over millions of people. And this is fine, since for the most part we all impliedly agree that the legal system, the constitution and the political framework work in our favour and that their use of force will be legitimate because it will only be used in the event of someone or something breaching the social contract, and that it will be used for the good of the majority.

Therefore, when we get to a state of affairs in which an unrestrained media can demonise members of the most evolved judiciary on the planet and undermine their very position as arbiters of the law and checks on Government power by deliberately mis-communicating that law and said judiciary’s actions, we risk a breakdown in the social contract and the consent by which we are all governed.

Rest assured, the judiciary is exercising its constitutional duty. It is deliberating on the law and on the law alone. It is not deciding whether Brexit should happen. At the very worst it is deciding whether Parliament should decide whether Brexit should happen. And Parliament is made up of MPs who are your representatives, who you elected. Do not take my word for it though, read the summary of the case in the High Court. Before you take a position on the basis of the propagation of massive media corporations, think to yourself firstly, why are they shouting so loudly? It is always the case that those who shout loudest are either the weakest or the most scared. The media is both, because the people are the ones with ultimate power; all you have to do is equip yourself.

In defence of not voting

It is not sacrilege not to vote, and it is not sacrilege to implore others, on certain conditions, not to vote either.

Well… what are these conditions?

For one, a tangible sense of alienation from the current political homogeneity – do you feel as if, somehow, there is something inherently wrong with being subjected to the sight of a bunch of round-bellied, red-nosed, jowl-quivering, delinquent buffoons guffawing and whooping in a lavish palace of baroque decadence while the people they are there to represent struggle?

Secondly, a feeling of being disincluded from decisions that affect you and your fellow citizens, a feeling of separation from politics, of being dictated to and condescended to rather than being involved and engaged in discourse. Somehow there is a sense that politics, the real politics – not the bullshit sentiments of a Muslim threat or benefit scroungers, but the politics of negotiating with obscenely rich tax ‘avoiders’, of regulating (or de-regulating) the City, which helps decide the national fate, or of privatising the NHS – is out of our hands. We can’t help but feel disincluded when we see videos of prominent MPs blithely negotiating glorified bribes from rich individuals or companies. This sense of being disincluded is exactly what Cameron’s Tories were appealing to when they adopted their hollow tag-line: “the Big Society”, in the run-up to the 2010 General Election. How’s that worked out?

Perhaps you feel powerless? Perhaps when you see images of twee, idolatrous bronze statues of the Iron Lady being bought at auction for unsavoury sums by wealthy, cackling silver-spoon gobblers in order to buy time with politicians in return for filling Conservative coffers, you feel powerless? Do you feel as if maybe, just maybe, those politicians will be less inclined to care about getting you off food-bank dependence or reducing your tuition fees or listening to your grievances and more motivated to ‘uncomplicate’ tax laws for a hefty fee? Or perhaps they would be more inclined to cut through some red tape so that a developer may build in your back garden or, worse, frack there. Do you maybe read about the millions of pounds that get ploughed into lobbying by big corporations seeking to colonise your homeland and feel just a little… meek in comparison?

If someone feels detached and separated from the system in which they live, should they sigh, puff out their cheeks, utter a “ho-hum”, resign themselves to it and hope for the best? While this might have worked for the war effort, it doesn’t, and should not be the case for the UK’s democracy. We are constantly implored to vote, we are told to the point of zealous fanaticism to vote, made to feel that by not voting we would be forsaking the efforts of our forefathers and foremothers who jumped under horses to earn the right for us. Nowhere is this more true than among politicians themselves. Sincerely, with pleading, desperate, wistful eyes they urge the people to vote, beg them to play their part in democracy and exercise their power as citizens. This, apparently, not for any other reason than an honest desire by politicians to be judged by their people. “Please”, they may beseech with tear-glazed eyes, “please vote, please play your part, please exercise your civic duty and your choice, your one choice, your one decision. It is your duty as a citizen of this democracy, it’s why we fought the war!”

Of course politicians want you to vote. A vote, every 5 years, is an acceptance of the status quo. A vote is an implicit legitimisation of the current political system, of the behaviour of politicians writ large. Voting, and more specifically, voting tactically and perpetuating a two (almost three) party system is all the limited and ultimately futile political expression that politicians would wish you to have. Sure, vote! Don’t protest though, don’t choose any of those smaller parties (lest you be encumbered with a pesky coalition government) – just vote, vote tactically, and vote once.

Not voting is denounced as political apathy. “Well, don’t be surprised when things turn to shit – you didn’t vote!” come the self-important I-told-you-soes. But voting is no longer the revolutionary, wind-changing choice it once was. Perhaps even as recently as the 70s and 80s was your vote a powerful weapon – even if we still only had a two-party system – because there were distinct and important differences between Labour and the Tories. Now, though, thanks to Thatcher and New Labour under Blair who fervently and loyally continued her work, the needs of business decide policy and there is little to no difference between Labour and the Tories. Even where there may be – for example, where the exaggeratedly nicknamed Red-Ed suggested putting a cap on energy bills – there is outcry, there were bullish threats from the Big Six and Ed, with a simpering whimper, was forced to shut up. Voting, therefore, is the true apathy. Voting has the same psychological effect as falling pregnant – a sense of accomplishment without having done anything but lie on one’s back and get fucked.

The logic from defenders of the vote seems to be that if you don’t vote, you deserve and can expect the jackboots of tyranny to march into Parliament. But this logic belies the importance of democracy and the inclusion of citizens in politics that Westminster loyalists are trying to emphasise. It suggests that if we don’t exercise our vote, our one piece of political influence, that we deserve fascism or whatever other system suggests a lack of democracy. This is insulting. The power of the people is not in their vote, the power of the people is in their ideas, their passion, their numbers, their sentiency, their indomitability. To restrict the importance of a citizen in political terms to whether or not they vote is insulting. The system is fundamentally broken and to perpetuate it by voting is fruitless.

There was record turnout for the 2014 Scottish referendum. Why? Because for once the citizens of Scotland felt there was a choice to be made, the decision of which would practically and in real terms affect their lives – and it was a decision over which they had real, tangible control. Not only that, but the Yes vote was filled with promises of bringing power back home and putting it back into the hands of the Scottish people – drawing it away from Parliament who an astounding number of Scots feel is unrepresentative of, and completely detached from, them. Scottish citizens felt empowered and emboldened by the referendum. It, if nothing else, served to highlight the immense feeling of powerlessness and disillusionment amongst the citizens of the UK.

This alienation and disenfranchisement is the juicy sustenance that has enabled previously fringe parties to grow into threatening political beasts. UKIP feed off political alienation, greedily hoovering it up and exploiting it in every soundbite. But it is laughable to think UKIP hold the keys to your empowerment. Removal from the EU won’t empower you, getting rid of the brown people won’t empower you – Farage is just the same as Cameron and Ed and as long as there is a political infrastructure such as Westminster in place, you will continue to be unrepresented. Nigel, though, unlike the Cameron and Miliband and Clegg, is cursed by having dim-witted troglodyte bigots for followers as opposed to politically savvy, relatively sharp-brained political careerists. The only reason he has been able to convince so many poor saps of his genuineness is because his party is young. The Tories and Labour have to put up with being labelled as part of the establishment because, well, they undeniably are. But Farage, unencumbered by a long party lineage, is able to play the new-kid-on-the-block card. Make no bones though, he is just as establishment as the others. Unless you’re pouring his pint, he doesn’t give a damn about you.

No, aside from concessions for pensioners by the Tories or bribes for the ‘yout’ by the Lib Dems or whatever inane, unspecific babble comes out of Ed’s dopy mouth, there is nothing of importance that can be gained from voting. The big decisions are taken out of your hands and you are left with patronising condolences. Instead, voting is a case of ‘better the devil you know’ or ‘the lesser of two evils’. Is that really the concomitant of all our hopes for democracy, the conclusion of years of reform and revolt, the materialisation of an enlightened and aware populace?

If enough people don’t vote, or even better, spoil their ballots, then there is evidence of an undeniable, un-sweep-under-the-rug-able systemic problem with our present democracy. And that problem will have to be addressed. A large portion of the population not voting, or actively spoiling their ballots, highlights the illegitimacy of whichever party wins power, it evinces a population that has not given a mandate to rule. It shows that something deep and far reaching has to change – enough with petty giveaways.

So, apart from not doing anything, what instrument is there that exists to effect change, to affect politics tangibly? Well, there’s protest, there’s pressure groups, there’s petitions, there’s writing and disseminating information on the internet, there is civil disobedience.

There is the law. The courts are not just somewhere you don’t want to end up. The courts are, in fact, the people’s greatest weapon. Cameron has labelled judicial review frivolous and anti-christ Grayling has set about restricting it in the name of streamlining. To the layman this has been sold as practicality and a measure in the interests of stimulating business and ‘getting things done’. Or, worse, it has not been sold at all, but rather has been set about clandestinely and under-the-radar – at least in terms of getting reported in headlines as the massive sucker-punch to the rule of law and throttler of people’s rights that it is. Judicial review is the probe that allows a citizen or pressure group to uncover the motivations behind ministerial decisions and, even, to overturn these decision where it is in the interests of justice (remember that?).

There is also the Freedom of Information Act. Of course, applications can be refused on vague grounds such as national security – which has an ever enlarging, ever wavy definition – but it’s worth a try. There’s also public inquiries. They’ve got a bad rep but if there’s enough knowledge of their potential and enough motivation they can be used damagingly.

So, come May 2015, instead of desperately seeking that strand of truth that might be concealed within the condescending, pseudo-terrifying party political messages, instead of deciding which politician has the most honest face, instead of putting aside your pride and that nagging feeling that perhaps they’re all made of the same shit and that juvenile insult-throwing and accusatory “he said she said” isn’t the way politics should be, perhaps… don’t vote. If enough people do it, it becomes a choice just as legitimate, and arguably more powerful, as any of the names on the ballot paper.

The Court of Public Opinion

I read today of a woman, now a widow, who decried the lack of justice in the sentence given to a 74 year old pensioner who, through the ravages of age and clinging senility, mowed down said woman’s boyfriend while he was happily cycling. The pensioner received a three year driving ban (at the end of which an extended driving test is required) and a 12 month community order. This, perhaps understandably given that the ‘widow’ is but a fallible human, subject to the weakness of primitive emotion, outraged the bereaved mourner. Baying for blood she branded the justice system, like so many inarticulate laymen, a ‘joke’.

Now, whether or not this woman, shocked and distraught as she is, wanted the little old lady to crack rocks, I don’t know. However, her reaction is emblematic of a wider failing – not so much in the law or the legal system, but a failing of the court of public opinion, exacerbated by the press and a wilful misunderstanding of both the law and the facts.

The 74 year old killer pled guilty to death by careless driving, an offence defined under the Road Traffic Act 1988 as causing death “by driving […] without due care and attention, or without reasonable consideration for other persons using the road or place”. Already the case had been transferred from the Magistrates’ to the Crown Court due to insufficient sentencing powers.

Kennedy J, in handing down the sentence, said “I’m not sending this 74 year old to prison”. And rightly so. The distinction in sentencing and the reason for the mourner’s disapprobation, comes from the distinction in offences under the 1988 Act. The only relevant alternative offence for which Granny could have been convicted had the facts been sufficient to satisfy the test, is that of death by dangerous driving under s.2A, satisfied if:

(a)the way [she] drives falls far below what would be expected of a competent and careful driver, and

(b)it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(2)A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

Assuming the vehicle had no patent defects, the test to satisfy is bipartite under sections 2A(1)(a) and (b) and, I’m supposing because her age-addled brain renders her incapacity only fleeting and infrequent therefore making her appear competent to the reasonable person otherwise than on the tragic day in question, she failed to satisfy section 2A(1)(b).

So Granny, by mistaking the accelerator for the brake, killed a guy. A terrible tragedy, one that would have even the most stoic relative balling tears of despair and spitting blood in anger. However, the justice system doesn’t exist to appease an individual’s emotions.

The case, or rather the ‘widow’s’ reaction to the case and the media’s presentation of the ‘widow’s’ reaction to the case, speaks to the heart of punitive philosophy. There are considered to be five fundamental reasons for punishment: restoration, incapacitation, rehabilitation, deterrence and retribution.

Since the OAP cannot give the poor woman her boyfriend back, restoration is not possible in this instance.

Incapacitation is exemplified, in our society, by imprisonment. Locking someone up so they can’t hurt anyone again. However, this is in the case that the convicted intended to hurt someone, and, by all estimations, intends to hurt someone again. Since Granny is just a confused senior with a discombobulated brain and no one is asserting that she’s actually a deranged killer practicing under the guise of senility, she never intended to hurt anyone. Therefore incapacitation would bear no practical fruit. There is no reason to lock her up.

Rehabilitation, in the form of education, does bear some relevance to the immediate case, and it is seen as a motivation for two parts of the sentence. That is the requirement to undergo an extended driving test to get back on the road once the old lady’s three years are up and the community sentence.

Deterrence is irrelevant in the sense of: what are you trying to deter? Other old people from overestimating their driving abilities? Have you met an old person? They’re more stubborn than a toddler with a matchbox car that mummy just has to buy him. However, deterrence can be relevant when it comes to the old lady, i.e. deterring her from committing the crime again. Prevention. Again, this is borne out by the sentence. She is banned from driving for three years – unless she causes death by Zimmer frame, she’s pretty well prevented from killing anyone on the road.

Now, retribution is what the ‘widow’ seeks. Indeed, retribution is generally what the court of public opinion seeks when it feels a wrong has been done to someone ‘just like them’. Retribution is punishment for punishment’s sake, it is revenge. Retribution, in our age of enlightenment and a profound understanding of the human mind, is a hangover from our primitive days. When our laws were guided, quite heavily, by the morals of a vengeful God, retribution was morally justifiable – indeed, necessary.

However, we have since moved on. And to seek vengeance on a little old lady, no doubt traumatised (though, admittedly, not as much as the devastated ‘widow’) and shocked, is a desire we must stem. We must contextualise the event, we must put aside emotion, since law is emotionless, and we must think clearly and with clarity and with a view to enabling societal progress.

This might seem rather grandiose, and perhaps overblown, in relation to a driving accident – one of a million like-cases. However, this misplaced desire for retribution and this reversion to primitiveness pervades our politics and our rhetoric, as well as that of our media and our Governments. And in doing so it slows our cerebral, societal, moral and personal progress from mere ape-descendants to enlightened human beings.

The sentence, in my view, was an entirely sensible one. It sought to limit the risk this elderly lady could impose, while stopping at being draconian. It gave closure to a grieving ‘widow’, without being overly retributive and succumbing to primitive desires. It served a purpose and was logical.

The leap, however, for the court of public opinion (indeed, the reason I chose this as the case study) is to be had in transferring the sympathy and moderacy we may project onto this case (that of a sympathetic old woman caught up in a terrible accident) to other, prima facie, less understandable or less easily identifiable cases.

We must promote a punitive philosophy, a societal discourse and a political outlook that seeks to understand, rather than to condemn. Law doesn’t only govern us or regulate us, it guides and gives voice to our morality, it represents our collective thinking. The law is a window into the ideology of a people. We should, rather than allowing the media to distort our view of judgments by deliberately blaring shocking and polemic headlines branding the legal system, in simultaneous echo, a ‘joke’, force them to be transparent as to the content of a judgment – the intricacies of the law involved in interpreting the facts. Perhaps this can be achieved by mandating links to the judgments to which newspapers refer.

We must first, though, shake off the shackles of primitive urges and allow ourselves to be enlightened by maintaining clarity and understanding. In order to achieve further progress, this is true of a legal system, it is true of politics and it is true of us as individuals.