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Arguments about democracy were central to the outcome of the 2016 Brexit referendum. Vote Leave’s objective of ‘taking back control’ was driven by democratic dissatisfaction. This dissatisfaction operated in two directions: both the institutional structure of the EU, and the UK’s relationship with the EU, were argued to be democratically untenable. Among other features of the EU and its relationship with the UK, the primacy of EU law, the powers of the European Commission, and the remit of the Court of Justice of the European Union (CJEU) were held to be indefensibly undemocratic. The aim of this article is not to revisit the democratic case for, or against, the UK’s membership of the EU. The purpose of this article is instead to critically assess the democratic credentials of the UK’s post-Brexit legal relationship with the EU. This paper argues that the post-Brexit settlement resolves some, but not all, of the democratic concerns raised about EU membership. More importantly, however, the resolution of some of these concerns about democracy has come at the expense of creating others.

Democracy is invoked so frequently in UK law, there is a risk that it has no legal meaning. Responding to this risk, this paper has three aims. First, to descriptively establish some of the legal content of democracy in the UK. Second, to argue that the legal content of democracy amounts to a constitutional principle. This means that democracy shapes the scope of the legal powers of the executive, courts, and even Parliament. The third, normative part of the paper argues that there is a tension in the construction of the UK’s constitutional principle of democracy. Currently, courts have been clear the right to vote is a product of statute rather than common law principle. This approach to voting, this paper argues, cannot be reconciled with the rest of the UK’s constitutional principle of democracy.

Carl Schmitt and AV Dicey are two of history's most influential constitutional theorists, and they offer two of history's most influential accounts of referendums. In most respects, their approaches to referendums are in direct opposition to each other. On Schmitt's view, the purpose of referendums is to acclaim executive actors. On Dicey's view, the role of referendums is to constrain them. Despite disagreeing about whether referendums should acclaim or constrain the executive, Schmitt and Dicey agree that an agenda-setting role for representatives in referendums is inevitable. This paper argues that, in the UK context, if Schmitt and Dicey are right about the necessary agenda-setting power of representatives in referendums, then the accounts of referendums they each offer must be two sides of the same coin. Given the dominance of the executive over the legislature in the UK and the uncodified nature of the constitution, referendums are processes that necessarily both acclaim and limit the executive.

Political parties are both private and public bodies. Some actions of political parties must be categorised as private to protect freedom of speech and association. This article argues, however, that it is sometimes necessary that political parties are understood as exercising public functions as well. When parties are exercising public functions, their actions then may be subject to judicial review. Currently, political parties have not been held to exercise public functions in the UK either for purposes of the Human Rights Act 1998 or common law judicial review. This article challenges the approach in UK law, particularly in Tortoise Media v Conservative Party [2023], which held that it was not even arguable that the selection of a Prime Minister by a political party was a public function. This article challenges this finding by offering a framework, drawn from current case law, for establishing when political parties are exercising public functions. The case law says that functions are public when bodies are 'operating as an integral part of a governmental framework'. These conditions were more than satisfied in Tortoise Media and offer a firm - albeit limited and context-contingent - basis for judicial review of actions by political parties.

The aim of this paper is to challenge the argument that says, as judges are not elected, they have weaker or no democratic legitimacy when compared to legislators. This paper draws on dicta from Laws LJ, as he then was, in the Divisional Court case of Cart v Upper Tribunal, to offer two reasons why this is false. Call these the efficacy and equality principles of representation. The claim here is that without an independent judiciary, legislators cannot legislate or legislate in a way that applies equally. So, without an independent judiciary, the democratic legitimacy of a legislature is weakened or disappears. This argument makes a legal difference, but the kind of legal difference it makes varies between jurisdictions. This paper focuses on one difference the democratic legitimacy of judges makes in the UK: the extent to which Parliament can oust judicial review for error of jurisdiction.