Graham Butler
PhD Fellow, Centre for Comparative and European Constitutional Studies, Faculty of Law, University of Copenhagen, Denmark.
Introduction
Referendums on European Union (EU)-related issues have occurred in a number of Member States since the foundation of the project, and may be considered highly salient in value in the eyes of voters. While political events such as referendums on EU questions have not featured prominently for the United Kingdom in the recent past, for the first time in decades, before the end of 2017, the United Kingdom will vote on a referendum with options of either remaining in the EU, or choosing to voluntarily leave. This second referendum on the EU, after the previous ballot in 1975, can be traced in numerous political variables. The evolving nature of the EU from the initial internal market, to being a more encompassing actor covering a wider breath of public policies, linked with the rise of popular Euroscepticism, has led to increased scenarios where referendums are availed of in many Member States. This short post looks at some of the experiences that the closest geographical and most closely related neighbouring state to the United Kingdom, has in holding referendums on EU questions. From a legal and political perspective, Ireland offers many lessons and learning outcomes on what the United Kingdom will face, given the Irish familiarity and understanding of referendums on questions of EU nature.
The Neighbours
Comparing Member States experiences with referendums can be a daunting task given the different weight that the voting public give to particular issues – not to mention different states sizes, diverse peoples, assorted political regimes, legal cultures, and countless other variables. For nearly thirty years however, Ireland and its electorate has developed steadfast experience of voting in referendums associated with membership of the EU.[1] They are a common part of political engagement for citizens, where every substantially revised EU Treaty proposal must be put to a referendum to incorporate it into the state’s constitutional order. To put the referendum nature of the state into perspective in quantitative numbers, eight referendums have been held in Ireland between 2011-2015 over the lifetime of one government, of which one was related to a directly European issue – the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (the ‘Fiscal Compact’). The Irish people are thus more engaged with the affairs of the EU on a more consistent basis than their British counterparts. Elsewhere in the Union, such as in Denmark, two recent referendums were held on European issues in both 2014 and 2015, namely on the establishment of the Unified Patent Court and state ratification, and on the Danish opt-out in Justice and Home Affairs issues respectively. The former passed comfortably in 2014, held in conjunction with the European Parliament elections, whereas the latter failed in 2015, with 53% rejecting the proposal, and was seen a merely technical, legalistic exercise that failed to ignite public interest. What do the United Kingdom, Ireland, and Denmark all have in common in EU law terms however? Notwithstanding that the three were from the ‘Class of ‘73’ in the first enlargement of the Union, the most important is the fact that ‘opt-outs’, derogations from Union law, were granted through Protocols to the Treaties during the time of the Treaty of Maastricht,[2] in order to cater for each of their continuance in the Union.
Lessons and Learning
Given the increased use of referendums as a tool to seek voter approval for particular issues in states of similar nature to that of the United Kingdom, the question to be asked in light of the Brexit referendum is, what are some of the lessons the British Government and referendum voters can learn from their counterparts in Ireland? Firstly, on a very practical level, the type of voter is going to be strikingly different, as voting on such a direct question on an EU issue will be a new experience for many British voters. Since the last referendum on the EU in the UK in 1975, the youngest person alive today that voted is now at least 58+ years of age, meaning younger generations of Britons and other eligible voters have never had any meaningful form of electoral engagement with the direct question of Union membership. As such, extensive information outreach campaigns are going to have to be run by persons or organisations campaigning for one side or the other. Secondly, more theoretically, a referendum is an obvious way of a political establishment evading responsibility, by avoiding taking a stand on a politically sensitive matter, and thus undermines the level of legal certainty established. The United Kingdom should thread carefully here, as in instances such as this, it permits for the exposure of a dichotomy between an electorates direct viewpoint on a particular issue, against those of the legislature which has thrust the question upon them. For example, Ireland outsourced some selected political decisions to a Constitutional Convention in recent years,[3] dealing with both hard divisive issues such as same-sex marriage, to softer and arguably less-interesting issues like reducing the voting age to 17.[4]
Thirdly, finally, the Brexit referendum question on membership of the Union could have a spillover effect leading to even more referendums in the future. Prior to the 1972, when Ireland held a referendum on joining the then European Economic Community (EEC),[5] there had not been a referendum of any kind during the previous 31 years, yet subsequently, there have been 34 referendums in the 33 years since then, not least because of the Crotty decision,[6] which has mandated a referendum on transferring further competences to the Union at times of Treaty revision. If the United Kingdom moves in the future towards a direct democracy approach beyond European Union affairs into other policy domains, it will be debatable whether this will be a desirable course for a state that has historically placed strong emphasis on parliamentary sovereignty, in line with the thinking of former British Prime Minister Margaret Thatcher, that referendums were, ‘a device of dictators and demagogues’. One of the key pillars of the current British Prime Minister David Cameron and British Government during its negotiations with EU institutions and other Member States is the need for greater subsidiarity for national parliaments. Thus, further examination and analysis will be a necessity before legally non-binding referendums are held in the jurisdiction once again.
Whilst negotiations for reforms and/or concessions are ongoing, this had led to blind speculation on what is, and what is not achievable with or without Treaty-amendment. However, whilst such issues for now remain a mystery, there is something that has been settled that is critically important – the Brexit referendum question itself. The question on the ballot paper, ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ is as straight-forward as they come, as are the two options of, ‘Remain a member of the European Union’ or, ‘Leave the European Union’, meaning there is unlikely to be confusion over what the proposal relates to, and which option means what. This can be contrasted with the confusing nature of referendum ballot papers in Ireland in recent years.[7]
Conclusion
There is a general British detachment from voting in referendums generally. The only one to occur within the United Kingdom as a whole since the initial 1975 referendum was the Alternative Vote referendum in 2011 that failed by a wide margin. Whereas this was a post-legislative arrangement, the upcoming Brexit referendum is not changing the existing laws, or approving an international agreement. Rather, it is an expression of electoral preference for whether the United Kingdom’s membership of the Union will continue, or whether it will opt to leave. Therefore, with the referendum being a product of political will, as opposed to legal necessity, it is arguably less interesting for lawyers than EU-related referendums in other EU Member States of binding nature, such as those in Ireland. If the outcome of the vote is to leave, the almost consultative nature of the Brexit referendum does not commit the government as to how and when the withdrawal from the Union would occur, in order to give effect to the will of the people. This leaves many unanswered legal questions as to how this would eventually occur,[8] and would need to be debated fully during the course of the referendum campaign.
The increasing use of referendums as a remedy for political actors, who are failing to make pivotal decisions, raises important questions of legal nature. If the path of referendums is going to be followed in the foreseeable future on politically tricky issues, a more legitimate way of adopting EU legislation may be necessary. Therefore, if the Brexit referendum outcome is to remain in the Union, the pursuit of greater subsidiarity for the House of Commons and the House of Lords in Union affairs may be the best way of achieving long-term stability on the issue of continued membership. With the passing of the European Union Act 2011, the United Kingdom have committed themselves towards the Irish route, of holding referendums on each amending treaty (such as Maastricht, Amsterdam, Nice, Lisbon), when amending the Treaties of the European Union. This decision to hold referendums in the United Kingdom on an amending Treaty in the future is based on political choice, as opposed to Ireland that does so out of legal constitutional necessity. This tactic must come with a note of caution, as increased referendum voting can lead to problematic outcomes,[9] and declining voter-turnout, thereby undermining the long-term legitimacy of exercises of that nature. Beyond the Brexit referendum itself, whenever it may be before the end of 2017, the use of referendums for reform of the EU decision-making architecture is one in need of further analysis, once the outcome of the British negotiation phase with the European Council and the European Commission is complete.
[1] For an overview see, Gavin Barrett, ‘The Evolving Door to Europe: Reflections on an Eventful Forty Years for Article 29.4 of the Irish Constitution’, Irish Jurist 48, no. 2 (2012): 132–72.
[2] Martin Hedemann-Robinson, ‘The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark: The “Opt-in Opt-Outs” Under the Treaty of Amsterdam’, in Legal Issues of the Amsterdam Treaty, ed. David O’Keeffe and Patrick M. Twomey (Oxford: Hart Publishing, 1999), 289–302.
[3] For a critical overview of the practice see, Eoin Carolan, ‘Ireland’s Constitutional Convention: Behind the Hype about Citizen-Led Constitutional Change’, International Journal of Constitutional Law 13, no. 3 (2015): 733–48.
[4] Houses of the Oireachtas, Terms of Reference for the Convention on the Constitution, 2012, https://www.constitution.ie/Documents/Terms_of_Reference.pdf.
[5] See generally, Gavin Barrett, ‘The Use of Referendums in Ireland: An Analysis’, Journal of Legislative Studies 22 (2016): forthcoming.
[6] Crotty v. An Taoiseach [1987] IR 713. See, David Fennelly, ‘Crotty’s Long Shadow: The European Union, the United Nations and the Changing Framework of Ireland’s International Relations’, in The Constitution of Ireland: Perspectives and Prospects, ed. Eoin Carolan (Dublin: Bloomsbury Professional, 2012), 395–421.
[7] Graham Butler, ‘The Road to a Court of Appeal—Part I: History and Constitutional Amendment’, Irish Law Times 33, no. 14 (2015): 208–11. p. 209.
[8] See, Adam Łazowski, ‘EU Withdrawal: Good Business for British Business?’, European Public Law 22, no. 1 (2016): 115–29.
[9] Ireland rejected both the Treaty of Nice and the Treaty of Lisbon the first time it was put to referendum, but was subsequently passed the second time in both instances. See, Cathryn Costello, ‘Ireland’s Nice Referenda’, European Constitutional Law Review 1, no. 3 (2005): 357–82. and Suzanne Kingston, ‘Ireland’s Options after the Lisbon Referendum: Strategies, Implications and Competing Visions of Europe’, European Law Review 34, no. 3 (2009): 455–75.