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Friday 9 January 2009 13:00 - 14:15European Union Treaty
Experts' Comment - 17 June 2008 (Robin Shepherd) and 25 June 2008 (Thomas Legge)
The following articles are taken from the forthcoming issue of The World Today, Chatham House's monthly magazine. Subscribe to The World Today >>
- Trust The People by Robin Shepherd
- Ways Out of the Irish Puzzle by Thomas Legge
You can comment on either of these articles by emailing the editor of The World Today. Send your comment to the editor >>
Trust The People
Robin Shepherd, Senior Research Fellow, Europe, Chatham House
In the immediate aftermath of Ireland's rejection of the Lisbon Treaty on the European Union (EU), most people reverted to type. Reflex eurosceptics were predictably pouring champagne over each others' heads. Like Nigel Farage, leader of the anti-EU UK Independence Party, they declared themselves 'absolutely delighted' that Brussels had again been rebuffed. 'It's all becoming a bit of a habit isn't it?' said Farage, 'Whenever you ask the people they say 'no'.'
For their part, incensed euroenthusiasts played up to the stereotypes and did little to enhance their democratic credentials, angrily denouncing the folly of consulting the people in the first place. Respected columnist Will Hutton, writing in the centre-left Observer newspaper, railed against the 'lies' and 'disinformation' of the EU's critics. 'Referendums work best for the demagogue, dissimulator and scaremonger', he said, 'as Hitler and Mussolini, lovers of referendums, proved.' Crikey. Today a referendum on the Lisbon Treaty, tomorrow swastikas over Dublin?
Change Our Ways
Fortunately, between the extremes, there has also been some sense. The Financial Times, in something of a shift in tone for such a pro-EU newspaper, called for the Lisbon Treaty to be put 'on ice'. Referring to a 'worrying gulf between EU-decision makers and popular feeling' the paper called for 'a new sort of response'. The sentiment was echoed by French President Nicolas Sarkozy. Commenting on the outcome of the Irish referendum he said, 'We have to change our ways of building up Europe.'
It is to be hoped that he is serious. For the second half of this year, France holds the EU's rotating presidency. Sarkozy will shortly have the power to reorder the political agenda in Europe. If he uses it to promote an honest appraisal of what is going wrong, based on an understanding that the issue of democratic legitimacy is now the EU's priority number one, he will have performed a vital service. For make no mistake about it. There is much at stake. If the EU mishandles the situation following the Irish 'no' vote, matters could spiral out of control.
There have already been worrying indications that some in Europe are failing to see the point. Some of the more openly anti-democratic Europhiles have been arguing that the Irish should vote again, or that the Lisbon Treaty be forced on them through the back door. If they win, the EU risks become a laughing stock. Political projects, like individual politicians, can survive being unpopular, but only if they still command respect. If contempt and derision start creeping in, we may enter an entirely new phase.
Two Speeds
Another idea being bandied around - a move towards a two-speed Europe, in which Ireland, Britain and possibly a couple of others would move into the 'slow lane' - is worthy of discussion. But it is fraught with risks and would need to be handled with care.
Despite deep roots, Euroscepticism has been held in check across most of Europe under the assumption that full membership, once accepted, is a fait accompli to which all member states must find ways of accommodating themselves. That is why, when the horse-trading is done, almost all mainstream parties across the EU have tended to work alongside Brussels rather than against it. True, there are precedents for individual countries securing opt-outs and exemptions: the open border Schengen agreement is one, the euro currency another. But a formalised acceptance of a two-speed Europe would offer full legitimacy to the idea that countries can reject entire strands of EU policymaking or renegotiate their relationship with the EU to take account of changing domestic priorities, while remaining full members. There would then be a risk of a domino effect. The imagination does not need to be stretched too far to see how this might happen.
Take immigration policy as an example. Painful as it is to contemplate, it is not beyond the realm of sensible discussion to imagine that one or more countries in the EU could see a surge in opposition to the free movement of labour in coming years, particularly if there were an economic downturn and unemployment rose sharply. If this were to create a pool of resentful and disaffected locals, the temptation for some mainstream parties to draw from it to secure votes may prove irresistible. With the taboo over a two-speed Europe broken, they may see a move into the slow lane as a price worth paying.
In such circumstances, the entire EU project could quickly begin to unravel. Those who have thought the two-speed Europe issue through understand that such risks are real which is why Brussels has hitherto been so reluctant to pursue it.
So what can the EU sensibly do? In response to the immediate problem, the safest option now would be to dump the Lisbon Treaty and have done with it. The current arrangements under the Nice Treaty are not perfect by a long way, but the Union has not collapsed because of them. Sophistry to the effect that a large number of countries have already ratified the Treaty and that it would itself be undemocratic to allow a few million Irish people to override them fools nobody.
For one thing, other countries would have rejected the Treaty had they also held referendums, and everyone knows it. For another, the Treaty is almost identical to the old constitution rejected by the French and Dutch three years ago. By any reasonable standards of democracy and accountability, the process should have died then.
Rejecting Referendums
At this point in the discussion an old favourite usually pops up concerning the suitability of calling referendums in the first place. If real progress in reconnecting the European project with the people is ever going to be made, this needs to be dealt with decisively.
The argument comes in two guises. One relates to the specific question of this particular treaty. Many, for example, have argued that Lisbon is too complex or opaque for ordinary people to understand. But that is simply not good enough. An EU committed to democratic accountability would have ensured that the document was written in clear language with the important content properly flagged and explained. The fact that it wasn't is indicative of a mentality in Brussels which has problems relating to normal democratic standards.
On Lisbon specifically, the other commonly-voiced objection to holding a referendum has been that it is not sufficiently substantial to merit being put to the people. But this runs up against an obvious objection. If it is not especially substantial, why was it considered so necessary to start with? It either is substantial or it is not.
In another incarnation, there is a more generalised opposition to the use of referendums in the ratification process for EU treaties. We live in representative democracies, it is argued, for a reason. We elect politicians to make such decisions on our behalf. If we do not like the way they have performed, we can vote them out at the next election. The trouble is that although we can vote our politicians out, it is not easy to retrieve the powers that have transferred. Renegotiation by one state or another of existing EU treaties is possible in theory. But it is fiendishly difficult in practice.
The general argument against referendums runs up against other problems. First, if ordinary voters, as it is often alleged, are not considered competent to understand the complexities of EU treaties during referendums when they form the only topic of discussion, why are they suddenly considered competent to understand them in conversation with their elected representatives during general elections which are fought on a whole range of issues? The inconsistency here is palpable.
Second, it is often objected that people can easily be swayed to vote during referendum campaigns by issues that are not actually relevant to the document they are being asked to consider. Again, why does this just apply to referendums? At general elections people can also fall prey to deception. Special interest groups pop up at such a time, some making honest claims, others making outlandish ones. You either trust the people to see through this or you do not. Most arguments against referendums in the context of EU treaties are the standard, well-worn ones against democracy itself.
Obviously, this does not mean that we should call for a direct, popular vote at every turn. No-one is suggesting that. But even though it is impossible to provide clear cut rules on when referendums are appropriate and when they are not, with a bit of goodwill it should be possible to establish some guidelines.
Broadly speaking, it seems right to consult the people whenever there is good reason to believe legislative or judicial authority is being substantially shifted outside of the national domain. We do not elect politicians on the assumption they will hand over their own powers or the powers of our courts. When they do, they should seek our consent.
The problem is the whole European project lies under such a cloud of suspicion that the principle of popular consent is at best seen as irrelevant and at worst an irritation. Too many people are in a state of denial that a problem exists.
Full, Frank, Free Debate
In the end, the most intelligent response to the Irish 'no' vote is the same as the honourable response. The death of the Treaty must be acknowledged. But more than this, it should provide the occasion for a thoroughgoing reassessment of how and why Europe got into this mess. At all costs, this must not be a re-run of the 'period of reflection' that was announced following the rejection of the constitution by the French and the Dutch when, having 'reflected', the EU decided to ignore it.
What is now needed is a full, frank and free debate conducted on behalf of the EU among a diverse group of people who have preferably not previously been connected with it. This would mean some sort of independent convention on democratic legitimacy conducted for the EU but not under its auspices. It would be composed of a diverse group of people with diverging starting points on the value and efficacy of the whole project. Only by this, or something like it, can the EU's credibility be restored.
The EU has already brought tremendous benefits to the people of Europe. From energy policy, through the deepening of the single market to aspects of foreign policy and regional security it may have the potential to bring many more. If this potential is to be realised, it is now up to Brussels and those who wish the EU well, to begin the slow, laborious but vital process of re-establishing the EU on the solid foundations of the consent of the governed.
Ways Out of the Irish Puzzle
Thomas Legge, Research Fellow, Energy, Environment and Development Programme
Ireland's rejection of the Lisbon Treaty in the June 12 referendum came like a bolt out of a clear blue sky because of its reputation as one of the countries which has done best out of European Union (EU) membership. The EU continues to enjoy a high level of support. In a Eurobarometer survey late last year, 87 percent of Irish people thought the country had benefited from membership, the highest such score in the EU.
The Irish vote, along with the rejection of the EU Constitution by France and the Netherlands three years ago, should be seen as a red flag to alert the Union's leadership that its current mode of integration is going over the heads of even those who wish it well. Although the Lisbon Treaty was ghoulishly misrepresented by the 'No' campaign in Ireland, a 271-page document of legalese is not the way to people's hearts.
The resolution of this crisis depends on the reaction of the EU institutions and the other 26 member states. No electorate should be slighted, or seen to be slighted, and this is a period for the utmost diplomacy and tact.
The referendum was both a technical and political requirement. In effect, all EU treaties are required to be ratified by referendum under the Irish constitution, a legal provision absent in all other member states. Expectations matter too, and the Irish people have got used to referendums on EU treaties and would have resisted strongly any attempt to pass Lisbon without one.
Previous referendums on EU treaties have been very effective in generating an informed debate that would otherwise not have occurred, as well as subsequently providing a high level of legitimacy to the state's ceding power to international institutions.
This year, however, a well-organised 'No' campaign and a widespread lack of trust in politicians caused many people who did not understand the Treaty to ignore their elected representatives' appeal for a 'Yes' vote.
All member states knew that unanimous ratification was required, and the referendum turnout was high: 53 percent, well above the minimum forty percent required. The margin in favour of a 'No' vote was also decisive: 53.4 to 46.6 percent. The result is therefore legitimate and cannot be simply overturned.
But this does not necessarily mean the Treaty is dead. First, Ireland must define its own response. The government is highly unlikely to try to submit the same Treaty to the people: it would almost certainly be rejected a second time and by a larger margin, with 'Yes' voters who objected to the undemocratic nature of the exercise joining the 'Nos'.
A more promising route would be to have a national discussion that considers every option, including a simple revote, a vote on a modified Treaty or even partial or full withdrawal from the Union. The National Forum on Europe would be a good place to hold this conversation, although it will not be enough on its own. The Forum is a public discussion process set up after the first Nice Treaty referendum in 2001 which airs concerns, grievances and misconceptions about the EU.
If this consultation concludes that the Irish people would not accept a second vote on the Treaty, even in modified form, then that should be the government's position. But if, as is more likely, the consultation reveals an approach that could command the support of portions of the 'No' side, for instance through a series of explanatory memoranda - addressing the misinformation of the 'No' campaign - or opt-out clauses - dealing with the more substantial concerns of some 'No' voters, then the treaty could legitimately be resubmitted.
This will require patience from Ireland's EU partners. Dublin must present its own proposals for a resolution to this crisis at the October EU summit. The country may stomach a second vote, or it may even decide that it prefers semi-detached membership of the EU. That is unlikely, but any such position must come from the Irish side. If the solution is seen to be imposed by the other member states it will generate further hostility to the European project among the EU public at large.
Finally, the Irish government could try to salvage something positive from its predicament by acting as ambassador for the ambivalence, confusion or latent hostility towards the European project that clearly exists in many countries.
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