Gina Miller: The will of the people is not set in stone

When the government tried to trigger Article 50 without parliamentary approval, she fought it all the way to the Supreme Court—and won. She tells Prospect that she's not done yet

July 05, 2017
Gina Miller arriving at The Supreme Court, London where Britain's most senior judges will rule if Theresa May has the power to trigger the formal process for the UK's exit from the European Union. Picture date: Tuesday 24 January, 2016. Photo credit shoul
Gina Miller arriving at The Supreme Court, London where Britain's most senior judges will rule if Theresa May has the power to trigger the formal process for the UK's exit from the European Union. Picture date: Tuesday 24 January, 2016. Photo credit shoul

Thanks to the EU referendum last year, tensions in British politics are running higher than at any time in living memory. The campaign pitted young against old, metropolitan voters against rural ones, those with degrees against those without—the list goes on. We are a country divided, and as the European question exposed the depth of that division, it tipped over into something more sinister. Campaigners on each side accused those on the other of stupidity, scaremongering, and, in one of the most memorable political phrases of 2016, "subverting the will of the British people."

Gina Miller, who took the government to court over the triggering of Article 50 last year, was the target of this last criticism, made by Attorney General Jeremy Wright. Such remarks are unlikely to deter her in her mission to hold the government to account during the Brexit process. "I refuse to be bullied," the 52-year-old told me at Prospect’s Westminster offices recently. As our conversation continued, and we discussed her recent tactical voting initiative as well as her plans for the future, I realised just how much she meant it.

Miller, who makes her living as an investment manager in the City, challenged the government last year when it claimed to have the right to start Britain's exit from the EU without approval from parliament. She won at the High Court—resulting in the now-infamous "Enemies of the People" headline in the Daily Mail—and then, after a government appeal, at the Supreme Court. As the case—so significant that it is already being taught to undergraduatesunfolded, the eurosceptic press launched vitriolic attacks on her, alleging that she was undermining the Brexit vote.

The Daily Mail ran pieces on her with titles like "What's the truth about Gina Miller?" asking whether she was a "shameless self-publicist." The Sun branded her the "Chief Wrexiteer." And it wasn't just the press; Rhodri Philipps, 4th Viscount St Davids, stands accused of offering £5,000 to anyone who would run Miller over with a car. She also claims to have received torrents of racially-charged abuse online: she was born in Guyana.

The newspapers "tried to ransack every part of my life," Miller explained, visibly distressed at the memory. "They thought that if they could destroy me, I would drop the case and back down." The pressure was so intense that early on, two partners who had planned to join her in the High Court case backed out. She was alone.

Was her decision to fight the government worth facing all this? She nodded, then added without hesitation: "I'm absolutely certain it was the right thing to do." The character assassinations, while hurtful, ultimately had the opposite effect to the one intended: they made her "more determined than ever" to win.

"We can't allow democracy, and the way our parliament works, to be diminished"
When she did, parliament went on to trigger Article 50 anyway. Britain began the process of leaving the EU in March, and negotiations started in June. But the key to understanding her case, Miller told me, is appreciating that she never intended to delay, or even stop, Brexit, but rather to ensure due process was followed. "It doesn’t matter which party you voted for, or which side of the Brexit debate you’re on," she explained. "If the Royal Prerogative had been used for Article 50 the precedent would have been set that any prime minister in the future can bypass parliament... so that’s what the case was about. It was to make sure that we were not creating a presidential-type prime minister." She laments that this was "lost on many people."

This came as something of a surprise—as did her next comment: "I am a democrat, and the 'Leave' campaign won." I had cast her as a single-minded Remainer, set on killing Brexit before it properly gets started. The Gina Miller who emerged during our discussion was a rather different proposition: someone whose stance on Europe is not easily summarised.

Once her mind is made up, however, she is near-unstoppable, and she is already limbering up for her next battle with the government. When David Davis's Brexit department starts transposing EU law into British law, it will make use of ancient constitutional provisions colloquially called "Henry VIII clauses." These will enable it to tweak EU legislation quickly, without a vote from parliament. "If they misuse this power, I will be taking them back to court... I am waiting in the wings to see how things are executed from a legal point of view" because "we can't allow democracy, and the way our parliament works, to be diminished." Miller speaks with a cut-glass accent, having attended Moira House Girls School, but as she made this final point her voice thundered.

Again, for Miller procedure is the priority. But throughout our conversation, I found myself suspecting that her Remainer colours play more of a role in her political forays than she was suggesting. There is plenty of evidence for this: in the run-up to 8th June she launched a campaign called "Best for Britain," aimed at encouraging tactical voting and guarding against a hard Brexit. The longer we chatted, the more this suspicion grew. The political attack dog began to bite.

Miller argued that Britain is yet to have a proper national conversation about Brexit. She told me: "There is very little information" out there about the kind of Brexit the government hopes to pull off. The public is "no better, a year on from the referendum, in knowing the detail." This is all the more worrying given the timescale for negotiations: proper talks won't begin "until after the German election" in September, she said.
"Miller is 'waiting in the wings to see how things are executed from a legal point of view'"
The reality is that the government will have little more than a year, Miller argued, to pull off one of the most ambitious tasks in British political history. And it will be mammoth. In May, the Financial Times argued that Britain will have to negotiate at least 759 treaties with 168 countries simply to stand still. In light of this immense complexity, not to mention the fraught political environment in which talks will take place, Miller told me she would like to see a cross-party approach to negotiations: "I would like to see a cross-party delegation. All-party committees are very much part of our political landscape, and are very effective. It would strengthen our hand in the negotiations, which I think is very weak now."

Miller continued, her cup of tea near-untouched on the table. "There is an almighty to-do list," she said. Faced with this problem, there has been talk on both the European and British sides of a transitional arrangement where, having missed the two-year Article 50 deadline, Britain muddles through with a temporary arrangement until such a time as it can finalise its withdrawal. The touted time for this period has been an extra two years. But "as much as I'd love to see a transitional arrangement," Miller told me, "two years isn't long enough." Brexit will be so complicated that this simply "would not solve the problem for us."

And, of course, a transitional arrangement is far from guaranteed. I asked Miller whether Britain could wind up falling off the Brexit "cliff edge" in March 2019, when the Article 50 time-limit runs out. "I think it's a very real possibility," she replied. If Britain makes a nightmare of itself during negotiations, or if the EU proposes a final deal which is unacceptably punitive, we could crash out, falling back onto World Trade Organisation trading terms. This is all the more likely, Miller told me, given that the EU will try to dictate the terms of our exit. The stage is set for a show-down.

The cliff-edge scenario would undoubtedly have devastating consequences for Britain's economy. A leaked Treasury report earlier this year warned of the painful "economic shock" which would result. The key to preventing it, Miller said, is a "meaningful vote" on the final Brexit deal.

Currently, the plan is that parliament will have a vote on the deal that David Davis returns with at the end of negotiations. However, MPs look set to have just two options: to accept the deal, or to vote for Britain to leave without one. A meaningful vote in parliament, Miller said, would give MPs a third option: they could vote for Britain to remain in the EU after all.

"I think parliament has to have the opportunity of saying 'this is so catastrophic, we want Britain to Remain'... And I don't think the EU would ever say 'No you can't Remain.'" Recent noises from the EU suggest as much, with Antonio Tajani, president of the European parliament, stating in April that Britain would be welcomed back if it asked. In a bizarre comment last month, which included a quote from John Lennon, Donald Tusk echoed this sentiment.
"Could Britain fall off a cliff edge in March 2019? 'I think it's a very real possibility,' Miller replied"
Whether the EU would accept a plea to Remain is one thing; whether MPs could ever bring themselves to make one, in spite of the referendum result, is another. They will hesitate before overturning the public's Brexit vote if they anticipate a fierce backlash like the one Miller, and the Courts, received.

But such a backlash is not certain; the economy, unnerved by Brexit, is starting to turn, and with it public opinion. Inflation is beginning to bite, and business confidence has plunged. Yesterday, reports emerged that investment in the UK car industry this year is set to be less than half what it was in 2016. The NHS is facing a mounting recruitment crisis, with applications from EU nurses looking to work in the UK down 96 per cent since June 2016.

All the while, poll after poll has shown the first signs of Britain having a rethink. In recent days, polling company Survation—which called the shock general election result near-exactly—has said that if the EU referendum were held today 54 per cent would vote Remain. The overall trend isn't yet clear enough to guarantee "Bregret"—but it does offer a glimmer of hope for Remainers. The Commons has also swung towards Remain since the election, with lots more pro-Europeans in the House thanks to Labour's better-than-expected performance.

But the question is, ultimately, a philosophical one. What is the nature of democracy? Is last year's referendum vote, the biggest democratic exercise in British history, binding, or does a healthy society necessarily leave room for people reconsidering? You can guess Miller's answer."This idea that people cannot have the opportunity to change their minds, we would never have elections," if that were the case.

"The 'will of people' is being used as a weapon against reasoned debate and reasonable voices."

She continued: "We have to fight back and say the will of the people will change over time, it’s not set in stone." I sympathise with Miller's position—in no small part because I believe that had the Brexit camp lost, it would be fighting against the result with all its might. Indeed, Davis Davis confirmed that to me last year: If the Leave camp lose 49-51 per cent, he said, “they’ll feel a bit aggrieved. That is not a formula for a satisfactory end to the argument.” But then why should the argument end just because Brexiteers happened to win it?

As our conversation drew to a close, I remarked that Miller had spent a huge amount of her time over the last few months in the political sphere. Would she ever take the plunge and run for parliament? "Now is not the right time for me," was her response. But then a smile flashed across her face. "I'm not saying never." A Remainer with the stomach for a fight: she's more than welcome if she ever changes her mind.