Businesswoman, philanthropist and transparency campaigner Gina Miller made a name for herself, and a few enemies, with her True and Fair Campaign in 2012. The campaign called for a Code of Ethics and 100% transparency on all fees and holdings in an understandable and uniform format across the UK pensions and investment industry.
Her tenacity resulted in text being inserted into three EU directives aimed to protect investors from hidden costs and fees. These will come into force in 2018 despite the UK leaving the EU. They will require every single company to aggregate and publish a Total Cost of Investing, one number, so savers and investors can finally see what they are really paying.
Her motive and aim is to translate the world and dialogue of wealth management investment into something comprehensive, transparent and accessible for clients to relate to. This resulted in her and her partner being recipients of the Moral Leadership City Champions Award that is given to a company or scheme which promotes high moral aspirations in the City.
Once again Miller has thrust her head above the parapet, this time single handedly taking on the British government over Article 50 in a landmark case that has seen our government obliged to include Parliament in Brexit negotiations.
The backlash of Miller’s work saw her website for the True and Fair Foundation, which helps and encourages transparent donations to charities, hacked twice and her investment agency, SCM Direct , lose business through fear of association. She has had a £5000 bounty on her head and threats to throw acid in her face. Was it worth it?
Prior to the Lisbon Treaty and Article 50, there was no exit formula for a member state to leave the EU. With Article 50 came the clause that a member state can leave in line with its constitutional requirements.
It was on this point that Miller brought a case against the Secretary of State, David Davis, for Exiting the European Union.
In the instance of Brexit, Prime Minister Theresa May’s interpretation saw Britain exiting the EU using a process decided upon by her executive government by power of the Royal Prerogative, which concerns the unmaking of international treaties, without requiring the approval of parliament.
This meant that May and her Government would have the power to decide which laws inherited from the EU over the past 43 years to keep and which to throw out.
“For example they could decide: working hours, maternity pay, environmental laws, just by themselves without parliament and, to me, that is the most dangerous place we could be as a country,” said Miller.
Miller’s argument centred on the constitutional rule that the government cannot change or take away rights granted by Act of Parliament and since an Act of Parliament was passed to join the EU, an Act of Parliament must be effected to leave.
“The Royal Prerogative ends where domestic law starts,” said Miller. “When we joined the EU we enacted the 1972 Act of Parliament. That act gave all UK citizens rights and only Parliament can take those rights away.”
R (Miller) v Secretary of State for exiting the European Union
Miller, unhappy with the idea of a purely executive-lead Brexit, brought her case against to the High Court and was appointed lead claimant by Lord Levenson on the grounds that her case was the most “fundamental” and on the strength of her team. Represented by Lord Pannick QC and nearly totally self-funded, Miller was given just ten days to file the case with her lawyers from Mishcom de Reya.
“Bearing in mind my team were pro bono, have got their normal case load, and I’m still doing my day job, we worked night, days, evenings and we filed on the 28th July. I spent most of the summer, as did my team, reading the case law. I even tried to read a case from 1610 on Royal Prerogative in old English, as we prepared ourselves for what the government would come up with,” said Miller.
Miller and her fellow claimants won the case unanimously on 3rd November 2016 with the three High Court judges in agreement. The government appealed the decision and the case moved to the Supreme Court.
The Supreme Court case was unusual due to the high number of court applications of a similar nature in the High Court and the strongest cases were allowed to join Miller’s case with her as the Lead Claimant. Miller was now backed by the devolved powers of Great Britain.
“The Government allowed us to have a stronger case and be adjoined by Northern Ireland, Scotland, Wales and the trade union,” said Miller.
The three devolved powers argued around the Sewel Convention that states, if Westminster were to make a decision that would detriment the citizens of that devolved power, then those governments would be granted considerable input into the debate.
For the first time in the history of the Supreme Court all 11 judges attended the four-day hearing, which attracted the highest number of journalists and widest television coverage since the founder of Wikileaks, Julian Assange, case.
“Normally a case like this would take two to three years to put together, we did it in eight months,” said Miller. “Lawyers in Canada, Australia, Singapore, the rest of the world were in awe that we actually did it.”
On January 24, 2017 Miller won the appeal by a majority of 8 to 3.
“Whenever EU institutions make new laws, those new laws become part of UK law. The 1972 Act, therefore, makes EU law an independent source of UK law until parliament decides otherwise,” ruled Supreme Court President, Lord Neuberger.
However, the court also ruled that as the Sewel Convention was not law, the government would not have to consult the devolved powers before triggering Article 50.
Before the ruling, Theresa May had announced that both houses of parliament will vote on the Great Repeal Bill, which will incorporate the existing EU legislation into British law, and the final Brexit deal once it has been put forward.
Due to the result of the appeal, MP’s voted on February 1 2017, 498 to 114, to give May the power to trigger Article 50 and get the Brexit negotiations underway. Although the vote has seen divisions appear in the major parties.
During both cases not one public figure stepped forward to back Miller in her claims. Miller believes that this was down to the fear of appearing against the referendum result.
“There was a fear that descended after the vote, that you can’t speak up against or have a civilized conversation about Brexit, everyone was so terrified and fearful of being seen as going against the will of the people” said Miller.
“And that fear is going to cripple us as we move forward because what we really need is great minds and great hearts. We need people who are experts and who have got real intellectual rigour to stand up and talk, but if they’re fearful, then the solutions that we’ll end up with will be very poor quality ones. So I will carry on as much as possible because bad things happen when good people do nothing.”
While there are some who feel that Gina Miller has caused an unnecessary delay in her forensic approach to the triggering of Article 50, there are many who believe without her front line approach our ability to maintain accountability in our country’s matters would be further diluted.
Miller insists that, while she is keen to return to a quieter life after the abuse and stress she received during the case, she will continue to use her voice and experience to support matters she feels lack the integrity, evidence, ethics and honesty that they deserve.
Written by Ione Bingley and Kate Hawthorne