David Campbell reviews Rise

Gina Miller. Rise: Life Lessons in Speaking Out, Standing Tall and Leading the Way. London: Canongate Books, 2018. 225 pp.

Review by David Campbell

22 April 2019

Though it is critical of her book, Miller and her publisher may well find satisfaction with this review because it recommends that every legal academic, and indeed everyone interested in the contemporary relationship of the practice of law to the constitution and politics of the UK, should read chapters 1, 2, and 4. As the book is a quick read, readers may as well read it all as the topic that makes the mentioned chapters essential sporadically crops up throughout. One imagines this book was written and published only because Miller has gained national recognition as a political personality, to the point where she felt obliged, in a feted speech to its 2018 conference, to disavow any ambition to lead the Liberal Democrats, though she is not a member of that party nor has any party political experience. She came to such attention because she was, of course, the leading claimant in R (Miller and another) v. Secretary of State for Exiting the European Union, the most important constitutional law case since Liversedge v. Anderson. Particularly in the mentioned chapters, Miller gives a fascinating description of her experience of participation in this great litigation and her understanding of what she accomplished by it.

Miller conveys the simultaneous elation and that she felt being involved in the first hearing of the case and its public discussion. In some charming passages, she describes finding herself “in the High Court, facing three eminent judges who were about to decide on a fundamental principle of the British constitution” (p. 15). Like all common citizens, she is unable to discern what the Chief was doing there, or why there were three judges. In an arrangement that I believe has no precedent in English legal history, the other two judges were the Master of the Rolls and a Lord Justice of Appeal particularly highly qualified to hear the matter. For Miller was, in fact, appearing before, not the High Court nor even the Divisional Court, but before as distinguished a Court of Appeal as one could ever conceive, extraordinarily sitting at first instance.

Appeal from this court to the Court of Appeal proper was impossible, and so a sui generis application of the leapfrog procedure took the matter straight to the Supreme Court. It is disappointing that Miller ends her story with her media interviews outside the Royal Courts of Justice on 3 November 2016 and says little about the Supreme Court hearing. One has to wonder what role she played in that hearing other than funding it. Really remarkable aspects of that hearing, such as it being the first hearing en banc by a UK court of final appeal, do not emerge from Miller’s book. The civil procedural arrangements that were made to hear Miller might well indeed have been appropriate to the sitting of a constitutional court. But, like almost every other citizen of the UK, Miller is unaware of the extraordinary things that were done.

Miller displays no greater understanding of ‘the complexity of legal arguments [which] unfolded’ (p. 11). The point on which Miller turned was approval of the claim made in Thoburn v. Sunderland City Council that the UK constitution recognises constitutional statutes and, the European Communities Act 1972 being such a statute, as it certainly is if there are such things, it could not be repealed other than by primary legislation. There is simply nothing about this in Miller’s book. She labors under the very, very firm belief that she wanted to “confirm Parliament’s sovereignty” (p. xiv) in order to thwart the Prime Minister and her Government in their “attempts to break the law” (p. 40) by an “authoritarian” and “unconstitutional” exercise of “ancient Royal Prerogative” (pp. xv, xiv). That giving the courts the power to command Parliament to pass the European Union (Notice of Withdrawal) Act 2017 as a condition of repealing the 1972 Act (that is, instructing Parliament what legislation it must pass) is regarded by Miller as a defence of sovereignty of Parliament. This is a profound mistake, but it is a very common mistake. That entrenchment of constitutional legislation against implied repeal and so the creation of a constitutional court which can decide on the legitimacy of attempts at repeal are not understood by Miller because they have been done in a way that is incomprehensible to almost all citizens. That the UK constitution has been radically altered (and since further altered) by generally incomprehensible means makes a mockery of Miller’s references to “sovereignty of Parliament” and the “democratic process” (p. xv), for it has subverted the sovereignty of the UK electorate. I must make my opinion clear that judicial supremacy is ultimately incompatible with democracy, but this is not the point specific to the UK that emerges from Miller’s book, which is that judicial supremacy is, to borrow from Goldsworthy’s seminal book, being “brought about,” not “by consensus,” but “by judicial fiat.”

I have tried to strike the light comedic tone that I feel is most appropriate to capture Miller’s paradoxical combination of self-satisfaction and bewilderment, which, when it is the core of a self-help book, can only be described as rich. But is this the right tone? Miller describes some appalling comments and threats that she has received from Brexit supporters (see pp. xi, 71), one of which led to a sentence of imprisonment (see pp. 46–50). Is there not something tragic about Miller’s financially and otherwise extremely demanding but self-defeating engagement with the law? However, if one defines tragic without merely equating it with sadness, then she lacks a quality necessary for tragedy. Like Oedipus Rex, Miller brought about events she certainly did not want to bring about—in her case a major step in the replacement of the sovereignty of Parliament, which she cherishes as she understands it, with judicial supremacy. But when Oedipus destroyed the sight of his eyes, it was because he had come to see what he had done. No awareness of what she has done or of what has been done to her troubles Miller’s vision of self-help through law.