EUROPE

Spring 2006

by Tøger Seidenfaden

Popular referendums are not the purest form of democracy but an invitation to vote irresponsibily, writes Tøger Seidenfaden, Editor-in-Chief of Denmark's leading weekly magazine Politiken. He outlines here his proposal for a new electoral mechanism that would give Europe's voters a greater say in major EU projects

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The French and Dutch referendums were a disaster for the EU, because they sunk a constitutional treaty that represented a substantial, pragmatic and politically realistic step forward. They have also had a dramatic impact on the Union's political effectiveness aggravating existing difficulties and sapping political will in national capitals and in Brussels.

It is far from clear that the treaty can even be revived. But if the No votes are to be overcome, this would certainly involve new referendums in both countries. The purpose of this article, though, is not to examine whether, when or how that might happen, but rather it is to consider the broader issue of how EU treaty reform might be achieved in the years ahead.

Let us be frank: The issue on the table is whether we can avoid using referendums in the future, because they have turned out to be high risk instruments with consequences that go far beyond the country in which they are held. The hard truth is that in an EU of 25-plus member countries, it seems very unlikely that any future treaty can survive the steeple-chase of multiple referendums.

Of course, a No result can be diluted and overridden and this was in effect what happened following the Danish No of 1992 and the Irish No of 2001. But, this has already proved to be unrealistic in the French-Dutch case. It might have been argued that France is a very large country, so that a No vote in small countries can still safely be overturned in the future, but in truth the French-Dutch precedent will make it very difficult indeed to go down that road. If a French No actually means no, it will be hard to explain to other national electorates why the same does not hold true for them.

If the alternative to giving up on referendums is giving up treaty reform, which would mean giving up on structural reform and improvement of the EU, finding an alternative to referendums must be seriously considered.

First, though, the issue of democratic legitimacy must be faced. If the No votes represented a clear and considered political rejection by the electorates of the substance of the proposed treaties, or amounted to a rejection of the European Union as such, the notion of somehow by-passing future referendums would be a form of democratic subversion. I will argue that this is not the case, even though the European political elite’s fear of the popular will is such that many will nevertheless perceive it as a subversion. And of course these are prejudices that have to be taken seriously into account when devising any democratic alternative to referendums.

Many friends of Europe have made a strong case that French and Dutch voters rejected the treaty for reasons that had little or nothing to do with its content, but instead reflected domestic frustrations with political leaders and social ills. There is a lot to be said for this argument, and a good many opinion polls seem to confirm it. Yet it does not go to the heart of the matter. People always have many reasons for voting as they do, and most election results could be explained away if all the voters were to be subjected to a stringent rationality test. What is striking about the six No votes in the referendums we have seen in EU history (only four of which were ratification votes) is how different the local political circumstances were. The No sides won against governments of both the Right (Denmark 1992, France and Holland 2005) and the Left (Denmark 2000, Sweden 2003). In most cases there was a high voter turnout, but there was also low participation in Ireland in 2001, and economic circumstances seem to have exerted little influence; they were good in Denmark in 2000 and in Sweden in 2003, and bad in France and Holland in 2005. That said, we have seen many more successful referendums than unsuccessful ones. It is also striking that in not a single parliamentary election anywhere in the EU (there have been more than 130 since 1957) has the EU or a European treaty been rejected by a majority of the electorate.

So, the puzzle that needs to be explained is why six referendums have failed, despite the fact than in all six cases an overwhelming majority of elected politicians, including the leading government and opposition parties, supported and campaigned for the Yes side. In all six cases, the electorate rejected the "political class" as a whole, including most of the elected establishment of trade unions, employers' confederations and other interest groups. Much was made last year of the widespread mistrust in France of politicians, and of the general political malaise. But in Denmark in 1992 and 2000, in Sweden in 2003 and arguably in Ireland in 2001, there was neither malaise nor widespread mistrust in the political system.

Even when looking comparatively at these six cases, it becomes clear that there is something in the political dynamic of a referendum campaign on an EU issue that favours the No side. There seem to be five main factors, although others could no doubt be added.

The most immediate and fundamental consequence of the referendum method is that, instead of being asked to evaluate alternatives and make relative judgements, voters are given a starker choice. Either they accept on trust the treaty proposed by those in authority, or they choose to take the opposite stance and make a difference by voting no. Unless already committed through knowledge of the EU or deep loyalty to it, it is hardly surprising that many choose to exercise an independent judgement. And there is no middle way; in most elections, gradations and shades of opinion are available, and when in doubt voters may choose the middle road, even if the result is a resounding "maybe". Here, it is a stark Yes or even No, if despite its starkness the vote is at the same time strangely inconsequential for the voter. No one gets elected or thrown out of office, and the voters cannot, in the nature of things, be held responsible for their choice.

Another important feature of the referendum system, which turns out to benefit the No camps, is the fact that a largely new set of political actors comes into play, mostly on the No side. On the Yes side, there is an alignment of all the main politicians in the country, arrayed in a highly unusual and intuitively suspicious alliance. Left and Right, the two usual alternatives, are suddenly on the same side (the UK may be an exception to this, but it certainly holds for France and Holland, and for all the other countries that habitually hold referendums). The fact that two camps who normally engage in sharp political debate, and who claim to represent different values and groups in society, are suddenly saying the same thing is likely to arouse suspicions of betrayal of party and ideological values among supporters on both sides. And there seems no way this can be avoided. If the two opposing political sides did not agree, there would be no treaty, since an EU treaty is a constitutional matter which usually requires a majority of two-thirds or more to be ratified in parliament (the UK is again the exception to this). Vis-à-vis these unlikely and not entirely credible alliances, the No camp inevitably reflects a healthy diversity; it contains the extremes of the political spectrum on left and right, it brings forth new faces form civil society who are not usually part of the political process (the media loves new faces) and it may even be reinforced by a sprinkling of dissidents from the main parties. These dissidents, whatever their personal motives, gain credibility from the very structure of the situation. Dissent by individuals is often seen in itself as a sign of courage and integrity that contrasting with the normal humdrum system of party politics. With the main parties caught in the unusual posture of agreeing with their lifelong political rivals, they become highly vulnerable to charges of betrayal of party values that are either implicit or explicit in the dissidents' stance. A prime example of this in France was, of course, provided by the former socialist Prime Minister Laurent Fabius, who defied his party and advocated a No vote. Other examples in Denmark and elsewhere can easily be found.

A third feature of the referendum system is also significant. In a normal parliamentary or presidential election, voters have access to three categories of facts when trying to make up their minds: (1) What the candidates say. (2) What the candidates have done since the last election. (3) Who the candidates are, and whether they are trustworthy, likeable, competent and so on. In a referendum campaign, only the first category is relevant. Nobody is being elected to anything, so an individual's record is irrelevant when it comes to evaluating an EU treaty. Not only does this make it possible for the No side to make assertions without having to take the consequences, it also means advocates of voting No are very likely not to be present in the political system in the aftermath of the vote, and even if they were they would be unlikely to hold positions of responsibility. Often there will be politicians who voters and the media do not really expect to take responsibility for anything. The strategic objective of the No camp is to create doubt (No-camps seldom if ever resist the slogan: "If in doubt, vote No"), so not only will it avoid having to manage the consequences of the No, but also as the winning side of a referendum it can never be blamed. In a democracy, a majority of voters cannot make a mistake, although they can reverse their decision at some later stage because they have been "betrayed" by politicians. Because a No victory is not strongly represented in the councils of government, and since it never gets down to the dreary work of implementation and inevitable disappointment (if implemented at all, this is done by others who did not advocate a No), it remains pristine as a democratic victory which may be betrayed, repressed or even forgotten, but never seriously criticised as blaming the voters is not a winning strategy in a democracy.

All of which brings us to another remarkable feature of the referendum system, and one that is especially salient in the case of repetitive referendums, but throws its powerful shadow over any EU referendum. It is well-nigh impossible for the Yes side to show respect for the No camp. The Yes side will have negotiated the treaty - and will have been elected to parliament and to power on a platform that generally entailed just such a possibility – so will be firmly tied to a pro-European political programme. The Yes side is thus doubly committed in parliament and in the European political system; to showing neither respect nor loyalty towards the No outcome. This phenomenon was dramatically illustrated when Denmark failed to ratify the Maastricht treaty in 1992, and when Ireland rejected the Nice treaty in 2001. In both cases, EU leaders were essentially advised by both governments to ignore the outcome, and the voters were later cajoled into voting Yes. Similarly, in the current crisis both the French and Dutch governments initially asked the rest of the EU to proceed with ratification, because at first no one cared to say that the constitutional project had collapsed. In the end, that may well be the outcome, but whatever happens it will take time, it will be messy, and will strive to deny the victorious No camps in France and Holland the satisfaction of a dramatic electoral victory.

This has two consequences for the electoral dynamics of a referendum campaign. In the case of repeated referendums, it is likely to create long-term mistrust in the European electorate, since it will have been in some sense betrayed, or at least manipulated. It will also give rise to more dramatic, not to say desperate Yes arguments along the lines of: "The consequences of a No are incalculable" (which indeed they are in normal political terms) and "a No will create an unprecedented and unscripted situation" (which it will). But such arguments are very likely to backfire in much the same way as they did in the Danish, Dutch and French cases. They leave the average voter with the feeling, that they are being forbidden to vote No, which, in all these EU referendum campaigns has helped to solidify the No vote. Of course, no option that appears on a ballot paper can be forbidden in a democracy, especially when it enjoys equality and symmetry with the Yes option. It is this aspect of a referendum campaign that carries with it important consequences in terms of media coverage.

Referendums create a unique media system. In any other reform debate, media coverage reflects, with varying degrees of perfection, the whole range of positions and interests. Government and opposition parties are heard roughly in proportion to their political importance. Experts, interest groups and concerned citizens are also heard from, and the debate is largely structured by the common understandings that have evolved around an issue over a long period of time. In a referendum, this complex media situation is replaced by one basic axiom, the principle of equal and symmetrical treatment. Editorial values, the sympathies of newspapers' owners and other national peculiarities may play their part, but the journalistic norm is the principle of equal space, time and coverage for the two camps. In France last year, systematic measurement of this became a major news story in itself, and any deviation from this "balance" becomes another argument for the No camp. This may seem like simple fairness, but in the context of the EU it means that all shades of opinion that directly or indirectly point to a Yes must be matched by opposite assertions, regardless of the relevance, credibility or background of those people making them. Since most voters do not share in the political elite's accumulated understanding of what EU jargon and EU political compromises actually mean, this is yet another boon to the No camp. The very different ways in which the constitutional treaty can be looked at illustrate the point: Anybody familiar with the content of previous treaties cannot fail to see that the constitution’s text was a clear improvement on its predecessors in terms of clarity, logic and substance. But anyone reading it with a fresh eye and without comparing it to earlier efforts will see it as over-long, largely incomprehensible and ambiguous. Progress is relative not absolute, and the constitution inevitably fell short of the standards of political philosophy of 18th and 19th Century constitutions or texts that the public had in mind.

Beyond this No bias there is also a fundamental problem with the use of referendums. Consulting the people is supposed in a democracy to settle an issue in the most solemn and decisive way possible. This is exactly what a No outcome does not do, when its subject matter is a treaty negotiated by and agreed to by a large number of countries and political institutions, including the government and parliament of the country that voted No. A democratic vote ought always to be a cause for rejoicing for somebody. There are losers, but there are also winners, and there is at least the hope that the winners will do better with the challenges the community is facing. In the case of a No vote, the rejoicing is only superficial, as the advocates of the No will not automatically take over in parliament and form a new government. Whatever that country does - whether it forges ahead, or goes into catatonic shock, whether it tries to reverse the vote, to minimise it or to ignore it - it will not pursue a No policy. The popular No vote is in effect aborted by representative democracy. This is not an accidental and reprehensible form of treason committed by nasty politicians, but a necessary part of the parliamentary system we Europeans all use in one form or another to run our complex affairs. Political leaders like the Netherlands' Prime Minister Jan Peter Balkenende and France's President Jacques Chirac or their Swedish, Irish and Danish predecessors have at different times been blamed for not taking full responsibility and resigning after a No vote, but what difference would it make? Their political opponents in the main opposition parties also campaigned for a Yes. Are they to resign too? And who would then govern the country? If a referendum were to be held on a specific issue - nuclear power, say - this would not be the case. And even if the whole political class were to be voted down, it could respect that decision by setting the issue aside. But in the on-going process of European cooperation, this is simply not possible. One EU policy or another must be pursued, and a No is not a policy, unless it could be interpreted as a decision to leave the Union, which in any case would require a new process and a new referendum.

Finding an alternative to the ratification-referendum method in the EU context is a task which must be faced, certainly if one believes that the Union will need to adopt binding reforms in the future. Giving up on referendums is justified not only by the huge cost and unmanageable consequences of No votes, but by the fact that referendum campaigns are deeply flawed as frameworks for debating European issues. Finally, and most fundamentally, it is justified because the use of referendums subverts representative democracy at both national and European levels.

So what might an alternative look like? My proposal takes as its starting point the simple fact that a nation state can accept or reject an EU treaty at two very different stages of the process in which that treaty - constitutional or otherwise - is produced. A veto can be exercised at the time of drafting the treaty, and at the moment of its ratification. Until now, the drafting of EU treaties has been left to civil servants and ministers in an Inter-governmental Conference (IGC), culminating in a European Council made up of heads of State and government. The whole process has been without the involvement of directly-elected politicians, not to mention national electorates or public opinion. The European Convention that hammered out the broad shape of the constitutional treaty changed this in a fruitful way. But the hundred or so national politicians in the Convention were appointed, not elected for the purpose. Also, the Convention took no votes, and individual nation states could not exercise a real veto in a process that was only preparatory to the IGC. It is in the IGC that governments and diplomats decide when the treaty draft is satisfactory, and when no further influence can meaningfully be exerted on the final compromise. Politics and public legitimation only came into the play at the moment of ratification, several years after the beginning of the process, and at a stage where all compromises have been made and no further changes are possible. And that was only in countries holding a referendum, since most governments could ensure broad parliamentary support for ratification long before the constitutional treaty reached the final and formal stage of ratification. Using a referendum, and placing the moment of real debate, political struggle and voting at the end of process, ensured that the electorate could only choose between exercising no real influence (voting Yes), or playing a role which from the point of view of the long and complex process producing the treaty, can only be seen as purely destructive (voting No).

I suggest that in the future the national debate, the political drama, the vote and thus the legitimating moment, should be shifted from the end to near the beginning of the process.

In a nutshell, I propose that Europeans should elect national delegations of negotiators to the IGC by popular vote, much in the same way MEPs are elected today. These elections would take place once the European Council had decided to convene an IGC, and set out, as was done in 2001 in the Laeken Declaration, the issues to be dealt with in the IGC. Of course, the national delegations would be advised by diplomats and others with relevant expertise, and representatives of the European institutions (commission and parliament) could also participate, but the elected national delegations would exercise the national right of refusal or approval of the draft treaty, thus exercising a potential veto by means of a majority vote within each delegation. A national vote on the composition of such a delegation might in some cases lead to opponents of a new treaty being in the majority. In this somewhat unlikely case, given the pattern of representative elections in Europe, the IGC would be unable to achieve a result or even begin its work. This would be crisis, but a crisis that would be resolved early and which would place responsibility where it belonged, while not precluding fresh attempts within a reasonable timespan. Electing a new national delegation, after a decent interval, is politically practicable; replacing your electorate after a No vote is not. Most important of all, such a crisis would not make a mockery of years of negotiation and negate the decisions of other parliaments and electorates. Under this sort of system even eurosceptics might be expected to contribute to the framing of a treaty that is being actively shaped by democratic representatives who were elected for just that purpose.

We should also note what this mechanism would NOT do. It would not replace ratification using tried-and-tested national constitutional arrangements, which would still take place at the end of the process. Only in Ireland is a referendum constitutionally obligatory, but this is a problem that may perhaps be left to the Irish. It would not remove the need for national governments to support the draft treaty at every stage. And it would in no way create a constitutional convention with some kind of supra-national status, since the treaty would still be produced by a purely intergovernmental conference, even if the method for selecting national negotiators to the IGC would change. Finally, the new mechanism does not have to be universally applied. Countries that have not held referendums and are happy with their existing way of approving EU treaties, could still appoint their national delegations to the IGC in any way they prefer.

The issue to be resolved is not the so-called democratic deficit in the Union, or even the broader issue of the day-to-day political legitimation of EU institutions. That is another challenge. The present No crisis has not arisen at European but at national level. It is not a failure of the EU institutions but of national methods of dealing with EU treaties. The new mechanism outlined here is offered only as a substitute for, and as a democratic alternative to, ratification by referendum.

One may reasonably ask whether the election of another tier of representatives will be able to solve not only the problem of potential No's, but also the deeper issue of legitimation that has now escaped from Pandora's Box. Might one not insist instead on the fact that national parliaments are already democratically elected, as is the European parliament, so why not let them do the job? The answer must be that the European Parliament does not have the power to reform the EU, and could not gain it without a move towards supra-nationalism that is wholly unrealistic. And national parliaments, even when not being kept at a distance from European affairs by their own governments, are nor elected for European purposes, so EU issues play a very limited role in national parliamentary election campaigns. This is often deplored, but in those countries that use the referendum instrument for the ratification of EU treaties it has become inevitable; voters are unlikely to care for the positions of candidates on European issues when all the most important EU decisions are taken by referendum. And national politicians have little or no incentive to develop European positions if voters seldom select them on that basis. Even in countries that do not hold referendums, parliament often plays a limited role in European affairs, as these matters are seen as a government responsibility, being traditionally part of foreign affairs. This again leads to a relative absence of EU issues from national election campaigns.

Competitive elections to choose each country's representatives to future IGCs would create a direct link between national electorates and the legitimacy of the EU, because it is created by treaties. It would also maximize the influence of national electorates, as voting would take place before the drafting of the treaty. Nay-saying veterans of past referendum campaigns will no doubt insist that the people would be consulted at too early a stage and will not be allowed to vote on the final text. But the notion that referenda somehow represent a "higher form" of democracy can be countered by two observations.

First, representative democracy is not such a bad legitimation mechanism. In the history of European democracies, it compares rather favourably with referendums, which have usually been used for plebeian, populist if not authoritarian purposes. Second, EU referendums are rarely if ever organised in response to popular demand. They are sometimes constitutionally inspired, but overwhelmingly they are politically motivated, and are the choice of politicians who have the right and the obligation to choose the most appropriate way of organising decision-making in their national democracies.

This is a responsibility they cannot duck if they want the European adventure to continue. I have made a modest proposal as to how they might go about addressing the challenge of failed referendums, and there are certainly other possibilities that we should consider. But it is not an issue that can be avoided, even if for the time being it is postponed by the self-same crisis that referendums have provoked.