It was the Filipina statesman Miriam Santiago who once said that she ate death threats for breakfast. Gina Miller, who we meet in a location it’s probably best not to disclose, eats them for lunch and dinner as well – or so it seems.
Shortly after our meeting, news breaks that a GoFundMe crowdfunding campaign called Kill Gina Miller had somehow been allowed to percolate on the internet since April 2019. But Miller comes across as a very sunny individual; if she’s carrying any burdens, she’s bearing them very lightly. It’s not surprising somehow that she refuses the offer of coffee. “A lot of people are awake and engaged now,” she explains, clearly not in need of any caffeine hit.
Brexit might now be happening on the 21st January, but there is a refreshing directness about Miller. She projects a happy warrior spirit that may in part be what induces such animosity in her adversaries. It’s clear that she enjoys being interviewed – which is just another aspect of enjoying her wider battles, which currently go by the names of Miller I and Miller II, both of which played out in the Supreme Court.
These have come to define her life and perhaps neighbour one another in the public imagination, but they are quite different in importance. The 54-year-old points out that Miller I, which found that the government needed to seek the approval of parliament in order to trigger Article 50, attracted some 523,000 viewers online. But Miller II drew a Morecambe and Wise-level viewing figure of around 30 million.
“The first case was, in a way, fairly straightforward,” she explains. “It stated that parliament must be involved in the process – which we have seen, thank goodness. But the second case, both domestically and internationally, was more important.” Contrary to some opinion, the enormity of the case is not that it changed the law but that it confirmed it. Miller agrees: “It confirmed the separation of powers. This notion that the courts can now tread on what they call the ‘political terrain’ is not true. The justices were very clear to say that this was a very unusual case, and they don’t expect to see one like it again. The courts have always been able to hold the government to account if it places itself above the law – and that is what Johnson did by shutting down parliament, because we are a parliamentary sovereignty.”
Which takes care, to some extent, of what one might call the theatrical element of the case, which accounts no doubt for many millions of those views. But it by no means accounts for the whole audience share.
Miller explains why the case mattered so much internationally: “There are over 130 countries based on our legal system and the way our democracy works, and the judiciary around the world are under attack right now. This is the first case on the international stage that confirms the separation of powers and protects the judiciary and the supreme courts in all those countries. That is why myself and the courts have had so many judges – from Thailand to Indonesia to Australia – all writing in, thanking us for doing this case.”
And what of the views, such as those expressed by William Cash on page 91, that the case represents the politicisation of the judiciary? Miller isn’t convinced: “This has been so overstated because it fits both the press and the government’s agenda. If you look back throughout history, every hundred years or so there is a rise in populism: it is not a new phenomenon and there is a populist playbook for destabilising a society. First, you attack experts and academics – all those who have knowledge. Secondly, you attack the rule of law and the judiciary.” A little later she observes: “It is actually quite an easy thing to do, to destabilise the state.”
So, sitting here, a month or so later, what are the implications of the case? The British system works according to a series of conventions that assume fair play. If one takes the view – which not everyone does – that Johnson misled the Queen, surely it would follow that we need some form of codification in order to prevent further encroachment of political bias into our system.
Miller has a nuanced view on this question: “I think what [Miller II] has done is to throw under the spotlight the whole conversation around codifying part of our constitution. There is a school of thought that having an unwritten constitution means it’s more flexible, organic and robust. So that some experts, particularly retired judges, are worried about going to the US model of having a fully written constitution. Now I think there is something in between – a partially codified constitution.”
So what exactly would she look at codifying? “I would look at codifying the powers of the executive, the prime minister and the role of parliamentarians, as well as the boundaries between the separation of powers and human rights.” She adds: “Also, some of the procedures in the house are very antiquated. Relying on Erskine May does make us a bit of a laughing stock around the world. But beyond that, you don’t have to go much further.”
Are there any other changes she’d like to see? “The other constitutional debate is about further devolution – or what I call deliberative democracy. The North-South divide is the deepest in the UK of any member state and part of that is because we don’t have any regional representatives with real power and budgets that can make a difference. People don’t feel part of the system because everything feels so remote in what they call ‘the Westminster bubble’.” So would she back a travelling parliament? “I think more along the lines of regional assemblies.”
All of this is very interesting, and yet something makes one want her to re-tell the story about Miller II. Then without pause, she is back in the thrust of it all, reliving her victory – how she began preparations for the case on 11 July and how, on 12 August, she received a suspiciously long letter that announced the government’s intention not to prorogue. She says she read it “about four times” before reaching a conclusion that would alter legal history: “I said, ‘We are going to not stop, we are going to prepare the case.’”
Things got very tight. “The last letter we got was at five o’clock on the Monday evening on 27 August – and the next morning they announced it. But when they made that announcement on the Tuesday morning at 10 o’clock, we filed at 4.30 and they didn’t expect us to be ready.”
And then quite suddenly she says something that makes the jaw drop. “We actually had whistleblowers on the case. That’s why we asked for signed statements [from the government], because we knew nobody would sign them because nobody wanted to perjure themselves; it was a very strong point for us. The other thing is, we were told by a very senior whistleblower that, if we lost the case, the government were going to extend the prorogation for three months.” Does Miller know the identity of the person? “Yes.” And are they still working there? “Yes, but they’re scared, they’re worried.”
She won’t reveal the whistleblower’s identity, but she does describe the complexity of the government legal department, which comes across as Kafkaesque, with perhaps a touch of Le Carré. “The government legal department is like Fort Knox, and the treasury solicitor’s office, in particular, is very difficult to get into. Most of the information comes from the civil service in the justice department.” (We called the justice department before publication, but they gave no comment.)
Miller continues, describing a culture of fear: “I’ve been told that things are not good there, that the atmosphere is not great. Sick leave has gone up and stress levels are ridiculous.”
She takes us up until the judgment. “When Lady Hale said ‘unanimous judgment’, we thought we had lost. It wasn’t until about three-quarters of the way through her reading of the judgment that we realised we had won. What is extraordinary about the judgment is not just that it is unanimous but its robustness; by the cases they quoted and the lengths to which they went to justify their ruling. That is why a lot of lecturers will use it in the future, because it is an extraordinary judgment.”
Talking of the future, we are surely approaching the point when Brexit will begin to recede – at least in its first phase. Yet Miller is synonymous in the public mind with Brexit. What might she do next? “I have a big environment campaign on my agenda, which I started putting a strategy together for,” she says. “Then Brexit happened, and things got put on the back-burner. What I’m very concerned about is ESG [environmental, social and corporate governance] investing.
Companies are using people’s desire to invest and get returns but also their desire to do good, but when you look under the bonnet it is absolutely terrifying. There is no ESG! It is women and young millennials that are being caught in it. They are being heavily marketed at because they want to do good. Greenwashing is rampant and it is a real problem that everyone is turning a blind eye to.”
Extinction Rebellion, you feel, could learn something from her. But it’s characteristic of Miller that no sooner is she telling you about one campaign than she’s outlining another.
“The really big conversation when this is over is trickle-down economics: it is not working,” she says. “I want to talk about responsible capitalism. Unless you change the way in which companies operate and make people, profit and planet part of their raison d’être” – she calls this the triple bottom line – “it won’t change. Right now, we are pushing for a complete review of the Financial Conduct Authority, because I don’t think we have a proper regulator in the industry.
“As with all the campaigns I’ve ever been involved with, you have to wait for the right time. I started talking about responsible capitalism just before the financial crisis, over 10 years ago, and nobody was interested. Whereas now, with the environmental conversation and because of the social mobility gap, it is the right time to have these conversations.”
And as she prepares to leave for her next meeting, you know she will have these conversations – and many more. One last question: would she ever enter politics? “Everyone keeps asking me and I say, ‘I’m not going there, because there is no way I could possibly do that.’ I’d be rebelling every single day on something different.”
She laughs, and it has to be said that the idea of anyone whipping Gina Miller into line does indeed seem slightly ridiculous.
