Andreas Auer, a professor of constitutional law in Switzerland, presents a reflection on anti-European referendums in the Editorial ‘The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience’ published in the European Constitutional Law Review (Volume 12, Issue 3, December 2016, pp. 397-408). Auer analyses different types of constitutional settings of referendums by making a comparison between the United Kingdom (UK) and Switzerland and also national referendums on EU related issues in general.
Referendum cases in Switzerland and the UK
Auer’s article starts with an insight of three major cases worthy exploring in order to discuss different types of referendums. In the first case, Switzerland had a referendum on the accession to European Economic Area (EEA), where a majority of the political parties, except one, strongly advocated a ‘yes’ vote. However, people decided differently and turned the offer down by voting ‘no’ by a slight majority. As a consequence, Switzerland is not a member of the EEA, albeit it had a series of bilateral agreements with the EEC, which is right now the European Union (EU), and possesses basic elements of free movements and other economic coordinates (p. 397). The second case also concerns Switzerland. In 2011, the Schweizerische Volkspartei launched an initiative against ‘mass immigration’, requiring an amendment to the Federal Constitution introducing quotas and ceilings for foreign workers and priority for Swiss citizens. The majority voted against ‘mass immigration’, but in 2014 the Swiss Federal Tribunal ruled that it could not apply any statute that is not consistent with the bilateral agreement on the Free Movement of Persons, if the agreement was not renegotiated or renounced. The third case is about the British referendum, which was held on 23 June 2016. The question appearing on ballot papers was ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’. A majority of 51.9% voted in favour of the Leave option (p. 398).
The author then continues to compare the constitutional setting and referendums in Switzerland and the UK. The first Swiss case involves mandatory referendum, which requires a popular vote with double majority requirement (people and cantons). It is triggered by the law, i.e. there is no requirement of approval by government or parliament and no gathering of signatures. The second Swiss case concerns the concept of ‘popular initiative’, where the people propose amendments to the Federal Constitution by collecting a certain amount of signatures and Parliament does not have any power to block the proposal (p. 399). As the author emphasizes, the constitutional setting of the Swiss Constitution can be referred to as a ‘bottom-up’ system. Contrary to the Swiss referendums, the UK’s referendums are triggered by the legislature or office holders and are only ‘advisory’. Due to the political pressure the initiators of the referendum feel abided to enforce the decision even if it is not in line with the government’s expectations. The author argues that Swiss referendums in essence are more democratic, since the power to propose or amend constitutions is not held by the legislatures or office holders, which tend to use their power of triggering referendums to compensate their fading legitimacy by carefully choosing specific issues and moments where the people could help them to sustain their policy or position. Thus referendums are not tactical weapons for popular applause for a government in need of some additional legitimacy (pp. 400-401).
The people as a State organ and direct democracy
The author describes his aim was to ‘demystify’ the referendum experience and the people as state organ. He points out that the people cannot debate an issue, they can only say yes or no. The people have no opportunity to motivate or defend their answer. The decision stands, although ‘the people’ cannot be held responsible for that decision unlike other state organs. At the same time, direct democracy strengthens the legitimacy of the decision, which makes a result from a referendum powerful and effective. However, direct democracy has its price and difficulties. It requires time, money and that governing bodies accept that people may make binding decisions even though it may disapprove the outcome. Consequently, the author argues that direct democracy is harder for the governing bodies than for the citizens due to the fact that the people is without accountability and the former are still accountable for their acts and omissions. Nonetheless, the people must still abide by rules prescribed by the constitution and higher law. Accordingly, the power of the people is limited, e.g. by fundamental rights and liberties (pp. 401-403).
The use of referendums on EU matters
To illustrate the referendums on EU related issues, the author provides basic statistics on the matter. During the last four decades the process of European integration has been the primary factor in promoting referendums. There have been over 60 referendums related to EU issues in 23 member states and four other states. Those referendums have been both national and European because the referendums were organised under state law and they were connected to the European integration process. Different types of national EU-related referendums are, for example, the decision on joining or leaving the EU, specific EU-related policies, the euro and EU enlargement steps (pp. 403-405).
When a member state has a referendum on an EU-matter and the result is negative, this is something that all member states must take into consideration. The author gives the example on how voters can abrupt a treaty ratification process. Furthermore, Auer claims that people, through referendums, exercise a power that goes beyond restriction within which their primary unaccountability can be compensated and justified. This can be incompatible with the democratic principle enshrined in Article 2 of the Treaty of European Union. He means that governments can avoid political duty by transferring the decision making to a referendum. The direct democracy dilemma would stem from three components of the constitutional order of the EU: the intergovernmental conference and ratification as a double unanimity lock, the member states’ sovereignty in the ratification process and the absence of a European referendum (pp. 405-406).
Challenging people’s decisions and the EU’s suicidal referendum policy
Decisions of the people are powerful and must be enforced, although they can be challenged. This is rare due to the strong legitimacy of the people’s vote. A lesson learned from the Swiss referendum in 2011, is that the people can ask to reverse the people’s decision with a new referendum, while the Parliament and the government are bound to implement it. Furthermore, the author discusses Brexit and argues that if the negotiations with the EU do not result in a way the Parliament hopes for, the pressure to have a second referendum might grow. The lesson from the UK seems to go only one step in the Swiss direction in which only the people can undo what the people have done, but can do so only if Parliament allows it (pp. 406-407).
The EU’s biggest mistake, according to the author, is the exclusion of referendums in the EU legal order while still accepting them in the member states. Furthermore, 23 June 2016 is the price that the EU must pay for excluding citizens from the integration process and giving the member states a veto power. However, the EU hopes to overcome the shock of Brexit and to do so an improvement of the fundamental treaties is needed – which, according to Auer, will be difficult or even impossible to reach. Within the existing constitutional framework there seems to be no solution to the EU’s direct democracy dilemma (pp. 407-408).
In the cases presented by Auer, we can see a crucial matter – people have voted and governments have to abide by that decision. The key issue in general is whether the people as holders of direct democracy can make the best decisions for their countries or even the entire EU. Aren’t they influenced by ‘populism’, phobias or lack of understanding of more complex things like economy or finance, that in some cases turn out not to be the best companion when deciding on hot and important issues?
As the author illustrates, the result of a referendum apparently means that the matter is settled but that is not always the situation. It has been shown by the Swiss referendum in 2011, when the Federal Tribunal concluded that it could not apply any statute that is not consistent with the bilateral agreement on Free Movement of Persons if that agreement was not renegotiated or renounced. This example confirms that even a referendum decision may not apply when it is not consistent with higher law, in this case a bilateral agreement, therefore the power of the people can be limited by the state’s own constitutional order. The people cannot exceed the already mentioned limitations and therefore disproportionately restrict for example fundamental rights and liberties in the name of the public interest and will of the people.
Andreas Auer criticizes the way in which the government grants the people a direct decision-making power that they cannot use. However, he also criticizes the rigidity of the referendum, the people can only accept or refuse, it is not possible for them to express a direct opinion, which is not really worthy of a democracy. Indeed, it is not a matter of giving the people a voice but rather of submitting a clear question to their approval. Nevertheless, his reflection extends further, to the very impact of this referendum because he considers that, the Swiss referendum in 2011 is not really useful, whatever the response of the people to the question asked, nothing will change. The author has spoken on many occasions, saying that he has ‘spent all his life defending direct democracy’ and, ‘only the people can come back on one of its decisions, it is the very essence of its sovereignty’. Concerning the Swiss referendum of 9 February 2011, he had refused to support it against the law because the referendum cannot solve the problems regarding the provision on control of immigration in the Constitution that will remain in effect regardless of the outcome of the vote.
The author is very critical to referendums in general and especially to those on EU matters. In addition, he did not touch upon the EU citizens initiative in Article 11 of the Treaty, which is a tool that allows EU citizens to participate in shaping EU policy. Furthermore, the article does not present the possibility for the EU to reject referendums on EU matters and how it would affect its relation to sovereignty of member states’ legal orders and constitutions. It would also be interesting with a discussion about the rejection of referendums by the EU in regard to the author’s view that the EU has excluded its citizens from the integration process and gave member states a veto power. Another view of the problem is also that people of different member states have different powers in EU matters, since some are able to question it by referendums as a mean of direct democracy, while others do not.
Nonetheless, the problem remains with national referendums that involve EU issues that affect all member states and their citizens. As the author has demonstrated, the EU has tolerated that national referendums can stop for example a treaty amendment process and EU enlargement steps. In a time where there is a rise of anti-establishment and populist voices in the political debate, there is no question that it would harm the EU integration process but rather to what extent. Therefore the author’s criticism concerning national referendums on EU issues can be justified.
Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck, and Sherimane Abdoun