The Brexit process has been marked throughout by a thoroughgoing disregard for democratic principles and political legitimacy.
First, the referendum vote excluded more than a million British citizens with a direct interest in the issue. That decision was upheld in court, which meant that it was legal, but it meant at the outset that the process was neither democratic nor legitimate.
Second, the process to date has overridden the rights of the minority. James Madison argued, in the Federalist Papers, that every majority had to be understood as a coalition of minorities, and the convention of majority rule was based on respect for the rights of the minorities that remained. That principle is fundamental to liberal democracy. The government has a duty to find a resolution of the vote that will maintain the fundamental rights of the citizens who it is bound by law to protect. However, nothing in the debates, and nothing in the government’s current plans, has given any attention to the issue.
Third, the government is proceeding without respecting its previous undertakings to consult directly with devolved governments. This, again, is not about the legal point; it’s about legitimacy. Ms May’s administration has been messing around for six months, and now they have the gall to claim that there isn’t time. A decision to consult is not a commitment to agree. It is disturbing that the consultation has not taken place.
Fourth, the government has proceeded in a way which is inimical to democratic conventions. It is disgraceful that they should have tried to go ahead without parliamentary debate, and no less disgraceful that it should have taken a citizens’ challenge to establish the obvious principle that they do not have the power to wipe out existing laws or citizens’ rights by fiat. The most surprising thing about the Supreme Court’s decision in Miller is that it should have to be said at all.