Brexit and the Legitimacy of Procedure│ Jake Scott
Brexit: will it happen? Should it happen? Can it happen? You would think, from the challenges made to Brexit from Gina Miller’s legal challenge to Dominic Grieve’s political manoeuvrings to the House of Lords’ implication that the British people did not know what they were voting for, that the answer to these questions is an emphatic no. But it ignores the simple truth that Brexit has to happen.
In Britain, we live in what can be referred to as a procedural democracy; it means, quite simply, that because the procedure is legitimate, so too is the outcome. When you remember this, it becomes clear that, despite the margin of victory for the Leave campaign – often touted as a sign of its illegitimacy – it remains legitimate.
Let’s look at the statistics: we all know that 52% of the voting population that voted, voted to Leave; 48% of the same group voted to Remain. Given that a majoritarian democratic system, which is one under which we live, requires a simple majority (50% + 1), this means the outcome of the Brexit referendum was legitimate, pure and simple.
But then there are confounding facts: only 72.2% of the voting population voted, so this means the percentages stated above (58:42) are actually 37% and 35% correspondingly. So surely the fact that only a third of British people voted to Leave means the Brexit vote is illegitimate?
There are two problems with this: first, it is the assumption that those who didn’t vote oppose the outcome, and would have voted Remain if they had. This is an electoral fallacy that does not deserve consideration: those who did not vote had as many reasons for their decision as those who did vote, and it is incredibly patronising to group them all together like that.
But the second problem is more procedural, and it is based on the simple fact that voting is an act of consent. When an electorate makes the decision to vote on an issue, they are consenting to the outcome before the procedure begins; it is a recognition of the shared determination that, no matter the outcome, the group voting wishes to stay together and this is the fairest and most honest way of securing that future; it is, in essence, democracy. To put this in less theoretical terms, it is as if the group stands before a set of scales, each holding a marble weighing exactly one pound (1 lb.), and placing their marble collectively on either end of the scale. Everyone is content that the scales are weighted correctly, and so whichever end weighs more wins.
When the question is posed in this way, that all who voted are consenting to the outcome of the process in advance of the process taking place, the Leave vote experienced not only a majority (52%) of the vote, but a super-majority (72%). To quote one Tory MP, “we’re all Leavers now”, just as we’d all be Remainers if Leave had lost. But it didn’t; in fact, it won by the widest margin British politics has enjoyed for a long time.