The supreme court judges who will decide whether the government has the right to trigger article 50 without a parliamentary vote have been disgracefully vilified, according to the lead claimant in the case.
Gina Miller, whose dramatic victory in the high court led to accusations that she and the judiciary were trying to thwart the will of the people, also claimed newspaper coverage had incited violence against her.
Speaking to the Guardian before the first day of the government’s appeal against the decision, she said she could no longer travel on public transport, work in her office, or even spend a normal weekend with her family.
But she was most exercised about fresh attacks on the judges before the trial has begun.
“I think it is such a dangerous road to be going down to be attacking the judges and their integrity and their independence,” she added, arguing that they had a right and duty to operate independently of politicians and the media. “They are being vilified and it is totally disgraceful.”
Miller’s comments come as the attorney general, Jeremy Wright QC, prepares to assert the government’s authority to trigger Brexit and its supremacy over parliament in international affairs.
One of the most significant constitutional cases ever to be heard at the supreme court, starting on Monday, could also strain the UK’s devolution settlement as the Scottish and Welsh governments weigh in behind Miller.
With the most senior law officers in England, Wales, Scotland and Northern Ireland all taking part in proceedings, the government’s ability to push through far-reaching political changes that affect the rights of UK citizens in the devolved administrations without consulting parliament will also be challenged.
Miller criticised the coverage leading up to the case, which has included an article from the Daily Mail naming each of the judges and outlining their views, marital status, incomes and the cost of their family homes.
The article was headed: “11 unaccountable individuals will consider a case that could thwart the will of the majority on Brexit. The Mail makes no apology for revealing their views – and many have links to Europe.”
The coverage follows the newspaper’s controversial front page after the high court ruling in which it branded the three judges who made the decision “enemies of the people”.
Miller said she had received a letter from a man who said his elderly German mother, who had fled the Nazis, had told him the article had sent “shivers down her back” because it was so reminiscent of an Adolf Hitler claim in the 1930s.
Miller said she had been taken aback by the personal threats she had received as a result of taking the case.
“I don’t go anywhere – it has been a complete poisoned chalice,” she said, adding that she had made formal complaints about articles and comments attached to them.
“It is a crime to incite violence against someone,” she said, adding that politicians were also slow to criticise the attacks.
She said that newspaper guidelines did not allow journalists to write about people being “foreign-born” as they did about her, adding that she was a UK citizen from birth.
“You don’t see ‘foreign-born Boris Johnson’,” she added, calling it “disgraceful”.
But Miller said she had no regrets because of the scale of support she had received including hundreds of messages from people who had experienced hate crime on the street.
“I’ve had stories of people speaking another language at a bus stop and being spat on and kicked – it’s horrifying.”
Miller argued that the case was not about stopping Brexit, but simply ensuring that a precedent was not set under which the government could bypass parliament on any issue it chose.
She also said she was baffled that the government had taken the case to the supreme court, because that had allowed the Scottish and Welsh governments to raise the devolution settlement. They had added unnecessary “twists and turns”, she said.
Miller said the key was that Britain did not have a written constitution so triggering article 50 without a parliamentary vote would set a dangerous precedent. “We would be undoing 400 years of democracy and sovereignty if the government were allowed to use this royal prerogative,” she said.
It came as a lawyer representing the second claimant, Deir Dos Santos – who voted for Brexit, called for calm ahead of the hearing, warning that security guards had been called in because of the threat.
David Greene, a solicitor with Edwin Coe LLP, who represents Dos Santos, said: “It is a sad day when space needs to be made at the highest civil court for security guards for parties and party anonymity is required to protect litigants seeking their legitimate right to bring this matter to court.
“The Santos and Miller claim is and has always been about the process for exit from the EU. No more no less. Many see it as an attempt to forestall the exit but Mr Santos voted for Brexit and supports that goal.
“He and we call for calm ahead of the hearing and the decision … Neither the parties, including my client, nor judges, are the enemies of the people. The court process and an independent judiciary are the hallmark of a democracy. It would be a sad day indeed when an executive can ride roughshod over the judiciary, portrayed as anti-democratic. To the contrary, we should be celebrating the court process and the rule of law.”
A senior government legal source said their approach would be to stress the wider constitutional importance of the case, which could have an impact on the use of the royal prerogative in future matters of foreign affairs and defence.
It is understood ministers felt the first hearings had been framed too much by the claimants going first, but the order will be reversed in the appeal, giving the government the opportunity to shape its case in a different way while making essentially the same argument.
The legal source said the government would have been unlikely to defend the case so vigorously if it was just about one parliamentary vote on triggering article 50, which ministers are confident they would win.
However, there is a strong feeling about the point of principle that the royal prerogative should be preserved for such decisions to prevent future parliamentary votes about every single change involving international treaties.
Ministers are already considering the possibilities for legislation to preserve the royal prerogative if the ruling goes against the government, meaning the executive would much more frequently have to consult parliament on international affairs.
Both the Welsh and Scottish governments will argue that the earlier high court judgment, which said that only parliament had the power to trigger article 50, should be upheld.
The counsel general for Wales, Mick Antoniw, said: “While Brexit will happen, the UK government cannot trigger it by overriding the British constitution. We heard a lot about ‘taking back control’ during the referendum campaign. Ignoring the governance arrangements of the UK is not a good start to that process.
“Leaving the EU will lead to significant changes to the devolution settlement in Wales. Only the UK parliament can make those changes, which should be with the agreement of the national assembly for Wales. The UK government does not have the power to short-circuit this important mechanism for dialogue between the democratically elected national assembly for Wales and the UK parliament by using the prerogative in this way.”
Most legal opinion is convinced that since the government has not changed its main line of reasoning, it will lose in the supreme court, where 11 justices will consider the case. Prof Michael Zander QC said last week that ministers could be defeated 11-0.
However, Trevor Tayleur, associate professor at the University of Law, argued that the government would be much better placed to make its arguments this time around.
He said the key argument would be that the 1972 European Communities Act had not created new laws but simply acted as a channel to bring European rights into the UK.
He said the government losing would only delay article 50, rather than stop it, but argued that it would show “that the courts are willing to become more assertive in their relationship with the executive”.
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