I'm more than happy to put my trust in the public to reconsider Brexit

Wednesday’s vote to give Parliament a much greater say in leaving the EU, supported by 11 rebelling Tory MPs, poses a dilemma for Theresa May. It’s not the outcome she hoped for, but it is a belated reassertion by MPs of the primacy of parliamentary democracy. Many of us have been troubled by the acute irony of Brexiteers parading their belief that withdrawal would mean a repatriation of powers to Westminster and, yet, they have steadfastly tried to muzzle parliament ever since Article 50 was triggered.

I am a democrat to my core, but I have long believed that referendums diminish democracies rather than empower them. We live in a diverse and complex society where modern life is increasingly demanding. Having a representative system allows us to get on with our lives, jobs and families without having to think about the minutiae of legislation on everything – health, education, housing, energy, terrorism, Brexit.

We elect and pay our MPs to act on our behalf by deliberating, discussing, listening to different points of view, making sober judgments, and seeing, where necessary, the bigger picture. If we don’t like what they are doing, our electoral system means we don’t vote for them next time.

In most countries, if referendums are to be binding, they are held with a supermajority requirement, typically of 60 to 66 per cent either of votes cast or of the electorate as a whole. In others, it is written into their constitution. For example, in Croatia, referendums are regulated by Article 87 of their constitution. This is to ensure a stable and sensible outcome by filtering out overtly emotional, prejudiced, subversive elements.

In the House of Commons a 66 per cent majority is required for a general election to be called outside the fixed term of a parliament. These supermajorities are an acknowledgment that a simple majority is not enough to license significant societal change, and to ensure legitimacy.

But as with nearly everything connected with Brexit, none of this was thought through. No supermajority requirement was built in, and three groups with a material interest in the outcome – 16-17 year olds, a large percentage of expatriates, and EU citizens working and paying tax in the UK – were not allowed to vote. Add to this the issue that the poll was far too binary and bereft of detail, and problems were bound to result.

Even with these negatives, I have up until now been against the idea of a second referendum; but I am coming round to the idea because of what has happened in our political system since I won my Supreme Court case to ensure parliamentary sovereignty.

The combination of ministers being bullied or fearful of losing their jobs, for example the case of the hapless Stephen Hammond; many of the rebels receiving death threats; others having to put their party before the interests of the country; cabinet ministers blatantly lying; and this arrogant belief that the UK should leave the EU for purely ideological reasons, at all costs, has made me reconsider.

The overt power that 10 extremist DUP MPs have over our Government, and facts emerging that foreign interference from a hostile power may be being perpetrated under cover of Brexit and undermining our democratic systems, mean I am now more than happy to put my trust in the public having their right to reconsider.

From a legal perspective, there may well be a referendum requirement as a result of the European Union Act 2011 which, according to some lawyers, means that there will have to be a second referendum before the UK leaves the EU, as it is by no means clear that the Government currently has the legal right to do so.

Pavlos Eleftheriadis, a barrister and legal academic, argues that any withdrawal agreement, and any future trade agreement, will effectively replace the existing treaties – and therefore, under the terms of the 2011 act this will require a new referendum. Professor Mark Elliott of Cambridge University argues, however, that the 2011 act does not apply to a new set of arrangements between the UK and EU. He also argues that even if that were true, the 2011 act created a requirement for a second referendum, which could be avoided by repealing the act. That would mean both houses of Parliament agreeing to overturn the existing law. But it wouldn’t necessarily be particularly difficult.

These questions may well have to be tested in a court of law. Potentially a second referendum could be avoided by a general election, with each party clearly setting out their negotiating position in their manifesto, and the vote would give them a mandate as to how they execute Brexit based on deal, no deal, or remaining.

Gina Miller is a businesswoman and transparency activist