Friday 13 June 2008

Europe after Ireland’s NO

The early results of Ireland’s referendum on the Treaty of Lisbon look solid enough: The Irish voters have clearly rejected the EU reform treaty by a wide margin.

This means that the Lisbon Treaty, as it now stands, fails to become binding for Ireland, but also for the 26 other member states.

The default option is that the European Union continues to be governed by the Treaty of Nice (2001), admitted to be inadequate by the very signatories the moment it was born, as attested by the Nice declaration.

The high point of the reform process was the Laeken declaration, which led to the European Convention, more closely resembling a constituent assembly than anything we have had on offer as EU citizens.

If a quirk of Ireland’s Constitution demands a referendum each time the EU needs to reform its treaties, it is their system. If the Irish vote to block progress, it is their legitimate choice.

After this resounding No, it would be distasteful to tinker with the treaty and to offer the Irish voters a second vote on more or less the same contents. It is hard to imagine the present or any Irish government in the near future willing even to try.

Unacceptable, however, is that the rest of the European Union should suffer more than necessary as a result. In about half a year since the signing of the Lisbon Treaty, 18 member states have fulfilled the essential requirements to ratify the amending treaty.

Most of them were ready to approve the Constitutional Treaty, but had to accept the diluted Lisbon Treaty in an effort to get all the member states on board.

But enough is enough. Something has to give, because the Nice Treaty is not fit for Europe’s future challenges.

Although the European Union would need more, rather than less democratic reform offered by the Lisbon Treaty, ambitious new reforms may be too much in the immediate future.

With regard to the substance, there are two options: The new European Union could be based on the Constitutional Treaty or the Lisbon Treaty. In the short run, the Constitutional Treaty would probably encounter more problems in some member states than the Lisbon Treaty freshly ratified or undergoing ratification.

As a technical improvement, the contents of the new treaty could be based on the consolidated version of the Lisbon Treaty, to give everybody the chance to read the text from the outset.

Only the provisions on entry into force would have to be reformed in a real sense, and some technical modifications made with regard to signatories, territory, member states, languages etc., mostly in the final provisions.

These additions to the Lisbon Treaty would not require too much work, if the political will is there. This and future treaties would essentially enter into force between the ratifying states, as most international treaties. These limited changes could be ratified separately and in short order.

If this is the way forward for Europe, it leaves the question of the state or states staying outside the new European Union. Here it would be best to wait to see what they propose. If these suggestions are reasonable, like participation in the European Economic Area (EEA) and possibly some other policy fields, these matters could be negotiated in a constructive atmosphere.

After the first flurry of activity, the EU leaders would have to discuss the future of the European Union and its democratic legitimacy more seriously.

The countries outside the Union or its core could contemplate their future relations without rush, until the next referendum.

Ralf Grahn


  1. Another option Ralf could be that all the governments of Europe open up their polling stations to the electorate and pass this version of the EU Constitution by popular consent.

  2. Caoimhin,

    The more I have studied referendums (with regard to the EU), the firmer my belief in the merits of representative democracy has become.

  3. I'm sure you are right Ralf, there are a lot of silly people out there in the world; but, having a "streamlined democracy" is a contradiction in terms. Sarkozy, Merkel, Barrosso and others are in too much of a hurry, changes come about in a democracy by process not pressure.
    All the best to you and yours in the new house!

  4. When you say 'the more you've studied" referendums, Ralf, do you mean the more the results have gone against your wishes?

  5. Caoimhin,

    If direct democracy is your principled stand, then representative democracy can be seen as 'streamlined'.

    Unanimous agreement by governments and national ratifications (often by more houses than one, often by qualified majorities) is hardly the epitome of streamlining by any other standards.

    I happen to believe in the relative virtues of representative democracy, with the added wish of evolution towards this form of government at the EU level.

    The verdict of the Irish voters should be respected, for Ireland.

    A referendum gives a simple answer (yes/no) to a complex question.

    We know that the Irish electorate has said no to the Lisbon Treaty, but what has the people of Ireland said yes to?

    In other words, short term and long term, what is the mandate of the government to arrange the relations for Ireland with (the rest of)the European Union?

    The rest of the member states have their legitimate objectives, too, and 18 of them have essentially ratified the Lisbon Treaty, in many cases as a diluted compromise to satisfy the stragglers.

  6. Head of Legal,

    Your question is pertinent. We have to consider both process and outcome, if we want to act in a principled way.

    Referendums, in my view, are incredibly blunt instruments for complex questions and entail an abdication of the responsibility to govern from governments and parliaments.

    I can remember no referendum on war or peace, but if referendums are used, the questions should concern fundamental issues.

    When we speak about the EU, there is an added anomaly between national referendums (and ratifications) and the Union as a whole.

    I can understand a referendum on joining the European Union and, perhaps, even on continued membership if the electorate is adverse to joining forces with the rest of Europe.

    But separate national referenda on each stage of development of a close political union one's country has signed up to are difficult to justify.

    When we look at the referendum debates, we can still reflect on process.

    I followed the French debate on the Constitutional Treaty intensively, and I have to say that I was saddened and dismayed by the distortions trumpeted about the treaty and the inability of even the best experts to set things straight with the electorate.

    My writing touched on a question or two of topical interest during the Irish referendum debate, and I saw few signs that correct information would have put myths to bed.

    This is my view on referendums as an instrument in comparison with deliberative representative democracy.

    You have a point in that a flawed instrument often leads to a less than satisfactory outcome, especially when we tend to notice only the results which throw a spanner into the works.

    Does anybody remember that most if not all of the new EU member states arranged referendums on joining the EU? (As I said, an acceptable use of the mechanism.)

    Or does anyone remember that Spain and Luxembourg approved the Constitutional Treaty through referenda? (Although I am not supportive of plebiscites at each milestone.)

    If pragmatic politics is to look at the outcomes, yes, a number of national referendums on questions relating to the EU and to domestic bones of contention have yielded results that I find retrograde in that they have excluded solutions or policy options which could have been more beneficial for the societies in question.

    It has proven to be difficult to rectify an unhappy ending to a referendum, even a long time after the event. Power, once abdicated, is difficult to retrieve, leading to a Catch 22 situation.

    Within the rules of representative democracy, governments and parliaments change - and change opinions - with less fateful consequences. It is easier for them to learn from their mistakes.

    Pragmatic politics is also to look at the information value of referendum results.

    What are the options for Ireland following the Lisbon Treaty referendum? What can the government legitimately do?

    What are the legitimate options for the other member states (all or some of them) to put their aims into practice?

  7. You comment saddens me a bit, Ralf. The problem is precisely that your not-so-secret wish is to "rectify" what the Irish have said and that you regret "abdicating" power to them.

    I'm not a great fan of referendums myself. Why I think they're vital in the politics of the EU just now is because of this huge gulf between the European Council and EU citizens. Until they show they are paying attention to public opinion and acting on it, direct referendums are an essential control on the political direction of Europe, and if they keep talking the way you do, the demand for referendums and the tendency for them to have No results will just increase.

    No, I haven't forgotten Spain (though I did forget Luxembourg I admit). That's why on my blog I acquitted Spanish leaders of the arrogance their counterparts are showing.

  8. I don't agree that Nice is "inadequate". A study by Sciences-Po university in Paris found a 25% increase in the speed of EU decisionmaking since the Nice Treaty was ratified, calling into question the need for Lisbon. The only people who really think Lisbon is necessary are the elites and those deceived by the elites. It's about them, not us.

  9. I do not agree with national referenda on EU-treaties. I would only support referenda on EU-treaties if they count EU-wide. Which means "one man one vote". Every vote should count the same.

    In national referenda that wouldn't be the case. In Germany maybe 30 million people could vote yes, and some half a million people in Ireland could vote no again. The treaty would fail because of Ireland again. That means that half a million people are worthier than 30 million votes.

    I want each vote to count the same, that is why we'd need an EU-wide referendum - if at all.

    Though I do agree, that there are cases in which referenda shouldn't be held. It is simply the wrong attitude to vote NO, just because you do not understand what you're supposed to vote on. The right attitude would be to get informed or - to say it in a rude way - shut your mouth.

    In Germany we do not have nationwide referenda, but we have them in certain regions concerning regional matters. I had the chance to take part in two referenda so far, and I can tell that I did not take part in the first one, because I did not have the knowledge to come up with a decision and did not gain knowledge by trying to inform myself. I decided that people who have the knowledge should make the decision, so I stayed away from the ballot. And I believe that is the attitude you should have, even if you like to participate in referenda. I do love voting each and every time, I enjoy Democracy to the fullest, but it's my responsibility as a citizen to at least try to educate myself on a the issue in question, to be able to make a decision, or to leave it to those who know better.

    It is irresponsible for a citizen if you say NO just because you are uneducated. Only uneducated people would think their non-opinion is necessary in a referendum to come up with a good decision.

  10. European Union Law Blog,

    I agree with most of what you say. Representative democracy is the norm and referendums an exceptional instrument to be used sparingly, for crucial decisions.

    If the day comes, when the EU would make the qualitative jump from a union of states (and citizens) to a federal republic, I would consider a Europe-wide referendum to be acceptable.

    But given the latest examples of how national referendum debates play out in practice, it is unconvincing to argue for them as a superior form of democratic decision-making. Neither are they called for each time the EU updates its treaties.

    The point you make about one man/woman, one vote is valuable. Both under the current treaties and pursuant to the Lisbon Treaty (and secondary legislation) the representation is skewered in favour of the smallest member states, to the extent that it contributes towards secession of regions within states.

    Many different types of organisations have rules for minimum representation, but in a union based on citizens the existing differences in weight of citizens' votes could not be of the grotesque proportions of today.

  11. Futuretaoiseach,

    Yes, studies have been conducted reaching the conclusion that the European Union manages to churn out impressive amounts of secondary legislation even after enlargement.

    However, the number of legislative acts is a less important measure of effectiveness or even efficiency than quality.

    EU legislation is mainly confined to the 'Community pillar', with elements of supranational decision-making.

    I see the challenges for Europe from two perspectives: its strengths and weaknesses in a globalising world combined with the viewpoint of an EU citizen.

    Two main objectives flow from this: security and prosperity.

    Neither is served by a 'liberum veto' or other trappings of impotence.

    This does not mean that the European Union has to meddle in all affairs. On the contrary, there are crucial matters nowadays beyond the effective reach of even the bigger member states, although Hamilton summarised them in the Federalist more than 200 years ago.

    From a citizen's point of view, the Lisbon Treaty offers fairly little in the way of concrete benefits, easily understood.

    This may have caused the citizens' initiative (with all its limitations) to figure prominently in information from the EU 'establishment'.

    But in my opinion the Lisbon Treaty (like the Constitutional Treaty and back to the European Convention) offers us citizens admirable aims, objectives and principles.

    In the long run they are going to lead to an improved union, when every concrete action can be measured against the professed aims of the European Union.

    Therefore, it would be foolish for member states or citizens to throw away the Lisbon Treaty, despite its shortcomings.

    It contains the seeds of change.

  12. hi, I've just found your blog via Jon Worth, it's really interesting.

    About this topic of Irish vote:
    personally I do not like too much national referenda on Europe-wide questions and I agree on this with European Union Law Blog. If I have to be honest I do not like too much this process of national ratification for every upgrade of the treaties, in my view that should be an European Parliament business granted that if a single country gets totally upset with the Union it will be free to go away and to take the decision using whichever mean they like (no tanks to Prague...).

    However this is not the case with the present rules and so in some way we need to live together with the process of ratification of any upgrade of the treaties on a national level with all the problems this entails, and they are not only national referenda and misinformation: if I understood well the no vote of the French Parliament in the fifties prevent the Union to have already an actual common defence...

    So if the problem of national ratification cannot be solved with Europe-wide decisions, by the European Parliament or by a Europe-wide referendum, perhaps the only valuable solution remained is a different speeds Union, with a massive use of enhanced cooperation ...

  13. Giacomo,

    In my view a pan-EU referendum would be called for the day the 'Federal Republic of Europe' had a real Constitution to approve.

    But right now the first step would have to be to overcome the almost impossible progress and minimalist solutions flowing from treaty reform based on unanimity between all member states' governments plus ratification by each member state.

    Better leave an option out for the ones who don not want to progress.


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