The Justice, the Spider and the Activist
‘Be ye never so high, the law is above you’
Britain. Tuesday, 24thSeptember, 2019. 10.30 a.m. Lady Hale, President of the Supreme Court, delivers the court’s verdict on the prime minister’s five-week prorogation (suspension) of Parliament. A dynamite judgement demonstrating that the government is subject to the law. Lady Hale and the ten other Law Lords, in precise and measured tones, confirmed that a country’s integrity lies in the independence of its judiciary. Sending a message to the powerful: ‘Be ye never so high, the law is above you.’
Twitter goes into a frenzy: tweets run faster than the eye can read them, new emoji’s pop up like fireworks. Clearly, the British nation is gripped by the finer points of law — actually — the British nation is gripped by an insect, a creature — a Spider to be precise. Shining, brilliant, and perched on the shoulder of Lady Hale. A glittering brooch, I hasten to add. It would appear insect brooches are a thing with Lady Hale.
In the midst of a national crisis, wit, humour and mischief have broken out in delicious abandon. Sparked by Lady Hale, who may appear as austere and stern as her position demands, but who can deftly reveal a sassy streak. After the case, Vogue magazine does a spread on her and The Telegraph prints the headline, ‘The “Beyoncé” of the Legal Profession’. The celebratory adulation of this remarkable woman is welcome and long overdue. However, besides the penchant for crawly insects on her shoulder, I believe one of the most pertinent facts about Lady Hale, is the motto she chose when appointed a Law Lord: “Omnia Feminae Aequissimae,” meaning, “Women Are Equal to Everything”. A motto to print on the birthday card of every woman in the world.
A motto which applies without reservation to the other woman at the center of this landmark case: Gina Miller. Few people in the world have the guts to take on a government. Gina Miller, is one of those rare beings, who stood up, and did just that. Not once, but twice. Both times on constitutional issues. And by doing so, strengthened Britain’s democracy. A benefit never to be underestimated. As far as I’m concerned, Gina Miller is a national treasure. As well as being a woman of colour, of Sikh heritage, a single parent, the survivor of a brutal street attack, and a business woman to boot.
The first case she brought in 2016 challenged the government’s authority to trigger Article 50 (the legal mechanism to leave the EU), without parliamentary approval. The second case challenged the government’s five-week prorogation (suspension) of parliament. Gina Miller and her legal team won both cases. Miller said in 2017: “I do know a thing or two about our constitution, as I once trained to be a lawyer. Even a first-year law student learns that an overriding principle is that parliament is sovereign.”
The government and Gina Miller’s enemies accused her of being politically motivated, partisan and anti-Brexit. She also became the target of vicious racist abuse, was called “not even human”, and received death threats. Rhodri Philipps, the fourth Viscount St Davids, was jailed for 12 weeks for offering money to anyone who would run her over and kill her. Miller was forced to install 24-hour security in her home, hire bodyguards and often disguise herself when going out. A heavy price to pay for defending constitutional principles. She’s said: “As a campaigner and activist for nearly 30 years, I know that the most difficult decision is to take a stand, the rest is merely tenacity. And in the face of lies, anger and hatred, I’d advise everyone to stay calm and courteous. Take heart from the fact that if abuse is hurled at you, it’s because you are being effective. Otherwise those angry voices wouldn’t be raised.”
Apart from the Supreme Court case, Lady Hale and Gina Miller have one other thing in common: a fine intellectual and ethical understanding of the role of the judiciary and the constitution, in terms of regulating a government’s power. Gina Miller’s enemies know perfectly well both these major cases clipped the wings of any British government wishing to rule by diktat, arcane and ancient powers, or by suspending parliament, as well as sending a warning to the shady influence of big money. No wonder some people are spitting poison.
Regarding the first case and Article 50: Gina Miller wrote: Theresa May’s government let it be known that it planned to bypass parliament and trigger article 50 by invoking an ancient crown prerogative power. My three years at university studying law, together with being a history geek, made it immediately obvious to me that this would deny the sovereignty of parliament.
Lord Pannick QC, leading Gina Miller’s team, based their case on the following:
- Parliament is supreme.
- Only Parliament can grant rights and only Parliament can take them away.
- No government can trigger Article 50 without an act of Parliament, as the legal consequence of Britain leaving the EU, would result in citizens’ rights being diminished or removed. In particular, the four freedoms of: free movement of goods, people, services and capital could cease…
If Miller hadn’t brought the case on Article 50, or the Supreme Court’s ruling had been different, 400 years of constitutional standing would have been undone. The country would have been worse off, our everyday lives become harder, and divisions deeper. The disadvantaged would have suffered even more. Miller: “Decisions of profound importance to our way of life could then have been taken by the prime minister, her ministers and their successors behind closed doors without reference to parliament. In terms of Brexit, May and her most senior people would have been able to take on all EU law and rights, the so-called acquis, and exercise the power to decide among themselves which to strip away from UK citizens and which to keep.”
With that one case, Gina Miller and her legal team upheld the constitution and protected the rights of every person in the country, including Brexiteers and hate mongers. We owe Gina Miller our profound gratitude.
In 2019, comes prime minister Boris Johnson and his five-week prorogation of Parliament. Compelling a second constitutional battle. The case again being led by Gina Miller and her legal team. This time co-joined by non other than former prime minister John Major. Their argument being that ‘Boris Johnson acted unlawfully in suspending Parliament.’ Raising the monumental question: is government subject to the law?
The Government certainly didn’t think so, arguing that ‘Prorogation was not a matter for the courts to decide.’
Alongside the questionable lawfulness of the prorogation, the nation had to grapple with the scandalous possibility Boris Johnson had lied to the queen. As a formality, her consent was needed for the prorogation. The Queen’s position is non-executive, non-partisan; she’s respected for scrupulously observing that principle. To have falsely gained her consent, would be disgraceful. Truly Shock Horror! OMG! Shuddering emoji.
On Tuesday 17th September 2019, the drama began: long queues formed outside the Royal Courts for a seat in the public gallery. Protestors of all hues gathered, shouting slogans and waving placards. Over four million people watched the live streaming.
During the three days of the hearing, at the appointed hour, the eleven Law Lords assembled. The exquisitely precise and formal proceedings of the Supreme Court heard intricate submissions and arguments.
When the Supreme Court, through its President, Lady Hale, finally delivered its verdict, Gina Miller wrote, ‘I was lost in admiration for all 11 judges of the supreme court when they decided, with cut-glass clarity, that the case I brought was just. Prime minister Boris Johnson had acted outside of his powers in proroguing parliament for an unprecedented five weeks with the obvious and extreme effect of obfuscating debate about the practicalities of how we make our exit from the EU on October 31. The advice he had given to the Queen was unlawful — the judgment could not have been clearer or more reasonably and succinctly put.”
It could be said, Gina Miller has law in her blood, her father having served as Attorney General of Guyana from 2001–2009. “He recognised that the law does not consist of tablets of wisdom arbitrarily handed down from on high, but that it is about safeguarding people’s rights and freedoms, as well as acting as a stabilising force for society as a whole.”
I’m certain, if a Labour government had tried to act in the way the present Tory government has, Gina Miller would have brought the same cases against them. She’s right, when she says the issues at stake aren’t about party or Brexit. They’re about democracy and who holds the power over government, to ensure it functions democratically, is accountable, and works in the best interests of the country. As both cases have proven, the rule of law applies as much to a government as to a citizen. Proving that an independent, secular judiciary, is essential to the proper functioning of a democratic government.
After the Article 50 case, a letter by Keith Flett to the Guardian commented: “As EP Thompson noted in the final chapter of Whigs and Hunters, where he reviewed the history of law in Britain, no complex society can operate without a system of law, even if there is a “whole inheritance” of struggle about what that is and how it should be applied.” (My underlining.)
Those of us immersed in our everyday lives, owe an immense debt to the people who take on momentous challenges on our behalf. Here I also want to mention Jolyon Maugham QC, founder and director of the Good Law Project, through which he’s played a key role in bringing to court a number of legal challenges to the Brexit process, which he opposes; he’s also been a target of serious and violent threats. As well as Joanna Cherry QC, member of the Scottish National Party, another woman with a fine, analytical mind, who’s also initiated legal actions regarding Brexit.
Gina Miller, Lady Hale and the ten other Law Lords, Jolyon Maugham, Joanna Cherry, and many, many others who may not be so prominent, are part of that “whole inheritance” of struggle.”
As Gina Miller puts it: “The law is an expression of how people want to live their lives and it evolves over time. It shows, certainly most of the time, a journey towards ever greater humanity.”
That ‘ever greater humanity,’ is manifested in landmark cases over decades and centuries, which have contributed to the struggle against injustice and cruelty, and towards evolving a fairer society.
In 1771, James Somerset, a slave, escaped his ‘master’, was recaptured and imprisoned on a ship bound for Jamaica, where he was to be re-sold. His case was brought to court and Lord Mansfield, the Lord Chief Justice ‘decides that no person, slave or otherwise, can be removed from England against his will. Not only that, but he declares chattel slavery itself — the idea of people as property — is not supported by English law.’ This judgement became a key milestone in the outlawing of the slave trade in 1807, and is a component in the fight against modern day slavery.
The cases of Kiranjit Aluwalia and Sally Challen, illustrate how the law has helped to lift the lid on domestic abuse, the hidden patterns of coercive, intimidating and violent behaviour in relationships, and the psychological effect on victims of feeling so entrapped and crushed, they feel their only escape is to turn on their abuser.
Politics has always been accused of smear tactics and stretching the truth beyond limits. Today’s platforms, such as Facebook have created a new universe where lies and fear can be propagated in a way never available before, creating a dark new world.
We need truly representative governments, with politicians drawn from every strata of society, and strong legal systems to battle these new threats. British politics has been defined — and bedevilled — by the dominance of politicians from private schools; particularly schools such as Eton and Harrow, whose highly privileged pupils have no idea of what life is like for ordinary people, and whose sense of entitlement makes them think Downing Street is part of their inheritance. The current struggles over Brexit are an expression of class warfare.
Recent events have proven, the bedrock of a robust democracy and a progressive society, is an independent, secular, justice system. With the addition of those brave champions who’re prepared to fight on behalf of others to uphold the constitution or challenge injustice.
Let’s end with a look at the inimitable Lady Hale, President of the Supreme Court — and her Spider sidekick — delivering the verdict on the prorogation of parliament.
By the way: ‘Omnia Femminea Aequissimae’