fbpx
Politics Foreign Affairs Culture Fellows Program

Democratic versus Procedural Legitimacy: The Case of Brexit

The UK constitution throws a spanner in the works of its most vocal defenders
brexit

Speaking of questions of legitimacy: how about that Brexit ruling?

If I understand correctly, the argument is that, as the referendum was non-binding, the government cannot trigger Article 50 merely on its own recognizance based on the opinion  of the people as expressed in the referendum. The power to trigger Article 50 is reserved to parliament, which is sovereign. So, basically, the referendum advised parliament rather than the government to trigger Article 50 and withdraw, and now parliament has to vote on whether to take that advice (as they promised to do before the referendum) or to spurn it.

The trouble is not merely that properly informing parliament requires revealing the government’s negotiating strategy (which the government doesn’t want to do), nor that parliament’s debate and vote may wind up binding the government in specific ways that hamstring the process of negotiation (which the government doesn’t want to happen). Nor is it merely that MPs will now have to consider whether they will be punished worse for doing what the people asked (since, if it goes poorly for Britain, they will now be directly responsible for the decision, and won’t be able to blame the government), or whether they will be punished worse for refusing to do what the people asked.

No, the biggest problem is that if the parliament in London has to vote on Brexit then what about the parliament in Edinburgh?

Procedural legitimacy flows from observance of proper constitutional forms, while democratic legitimacy flows from the expressed (or presumed) will of the people. In general, conservatives are the sorts of people holding up the claims of the former against the claims of the latter. But right wing populism scrambles the usual arrangement.

It was ironic to begin with that it took the constitutional innovation of a referendum to make clear to Britain’s major parties that the country opposed their common project of European integration. It will be even more ironic if what ultimately frustrates the people’s will is not the fecklessness of its leaders but the structure of the British constitution that the Brexiters in particular proclaimed their desire to preserve.

Advertisement

Comments

Become a Member today for a growing stake in the conservative movement.
Join here!
Join here