This article was contributed by Mishcon de Reya head of private James Libson who represented Gina Miller on the landmark Article 50 legal challenge in the highest UK courts
The Article 50 case was unique in many senses. First, it was a once in a generation constitutional case that any lawyer would feel privileged to bring. The issues go to the heart of what calls many to the law in the first place. Rule of law, the separation of powers and the independence of the judiciary are matters that whet the appetite of many a law student but with which many careers pass without engagement. Add to this a matter of genuine public interest and a dose of controversy with a leap frog to a fully constituted Supreme Court and one has the recipe for a litigator’s dream.
We are left with a clear judgment providing certainty as to how Article 50 can be triggered. Primary legislation must be created, an Act of Parliament must be passed.
This was the position taken by our client, Gina Miller, from the first letter we wrote on 27 June and on which, after yesterday, she rightly feels vindicated.
Because of the unique nature of the European Communities Act 1972 as a source of law and because of the rights it and later legislation conferred, only an Act of Parliament can have the effect of reversing the position. The Royal Prerogative does not stretch far enough and nor did the 2016 Referendum Act, which could have conferred authority on the Government to trigger Article 50 but did not.
That dry summary of the issues goes nowhere close to explaining the reaction to the case. Why did a case outwardly concerned with arcane matters of constitutional law attract so much passion and sheer nastiness? We knew when we took it on that the issue was controversial.
The febrile post-referendum atmosphere that appears in many respects hardly to have abated was bound to ensure attention, but the extent of the attention was unprecedented. We experienced a degree of support and a larger degree of hostility including demonstrations outside our office, but nothing compared to the anger and hatred directed towards Gina. She became a lightning rod for the most violent and nasty eruption of vitriol imaginable, in social media, in the mainstream press and on the street. She received threats of an unimaginably vicious nature, and was and continues to be incredibly brave in the face of very personal and frightening campaigns against her.
As well as the case’s constitutional questions another issue emerged with the Divisional Court judgment and the unprecedented – at least during my career – attack on the judges. Its source was similar to that which fed the malevolence towards Gina. Defence of the judiciary and the separation of powers came too slowly and too meekly from the Government but was shouted loudly from the profession – including editorially from The Lawyer.
The case was principally about the assertion of Parliament’s constitutional rights, which many say was at least part of the reason they voted Leave. And yet the angry response to it was entirely at odds with the reality. It exposed the low level of public understanding about how our system of government works and what principles like Parliamentary Sovereignty and Rule of Law mean.
There appears to be total confusion about the role of judges, for example, and not just among the general public. Some of our MPs not only failed to defend the judiciary but made public statements decrying their supposed interference in political matters. Only yesterday a Conservative MP was interviewed outside the Supreme Court and said that he believed this judgment was policy making and the judges had strayed too far into politics. Hard to believe any such comment could be made with regard to the incredibly clear 97-page judgment which was explicit in stating that it was not dealing with any of the politics of the matter. And no one will forget the “Enemies of the People” headline quickly.
It is a real issue for us as a nation, and for the legal profession, when even the most basic principle of rule of law and the role of our judiciary is misunderstood and misinterpreted to such an alarming extent. At Mishcon we will of course continue to talk with immense pride about this case for years to come. But we will also examine what happened and look at what we can do to help engage and educate the public and Parliament about these principles which are so essential to our governance and public life.
Our shortcomings as a profession are a reflection of the wider national discourse: a separation between what we consider important and what a broad swathe of public opinion does. Unexpectedly, the Miller case has been a wake up call as well as a tremendous privilege.
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