After Ireland: Referendum and Unanimity (ARI)

After Ireland: Referendum and Unanimity (ARI)

Theme: After the ‘No’ vote in the referendum held in Ireland on 12 June, and in view of the unanimity requirement for treaty ratification among member countries, the entry into force of the Lisbon Treaty faces a setback. A new period of uncertainty has commenced in the process of European integration.

Summary: After the experience of the failed European Constitution, the governments of the 27 EU member States sought to prevent referendums from being held to ratify the Lisbon Treaty. Only Ireland, by constitutional imperative, submitted the text to a vote, receiving a ‘No’ which again places a spanner in the works of integration and questions the advisability of direct popular voting as a means of approving such a complex text. However, even more debatable than the referendum, considering the possible political contagion or adverse legal decisions in other member States, is the requirement of unanimity among all member States in the ratification of any reform in such a broad and heterogeneous EU. There are four reasons underpinning this criticism of the unanimity requirement: (1) it breaches the principle of equality among members; (2) it enormously reduces the possibilities of making any progress; (3) it perverts the democratic principle; and (4) it means that all the other member States must bear the cost of a decision of one member State.


The Danger of the Irish Landmine
There was a warning from this same platform four years ago that ratification of the EU Constitution would be a minefield that could be triggered by the slightest movement. Two of the landmines, the referendums in France and Netherlands, did indeed explode, and, as a result, the Constitution failed. What some have called the ‘rescue of the substance’ was based on the premise that it was possible to retain the substantive contents of the reform and thereby avoid having to submit the treaty replacing the Constitution to a popular vote. Accordingly, the guiding principle in negotiating the Lisbon Treaty was to avoid referendums. Appealing to this approach, the Lisbon Treaty was basically an attempt to demolish the constitutional façade: from the name of the Treaty itself and the regulations deriving from it, the symbols and the shameful relegation of the Charter of Fundamental Rights to a Declaration, to the removal of any explicit reference in the body of the Treaty to the principle of the primacy of EU law, etc.

After this clean-up operation, the Irish referendum was seen as the only ‘landmine’ left on the ground. As is well known, the Irish Constitution requires that any treaty reform be construed as a reform of the Constitution itself, which requires a referendum. And this ‘landmine’ could be tripped by any of a variety of matters indirectly linked to the Treaty, such as the talks with the WTO, in particular, imports of Brazilian beef and their impact on Irish livestock farmers, the possible harmonisation of corporate income tax in Europe and its impact on the lower tax rate in Ireland, the repealing of constitutional restrictions on abortion supposedly permitted under the Lisbon Treaty, the supposed Irish commitment to the European army, as well as other issues which really were related to the treaty, like the loss of a permanent seat for Ireland on the future Commission.

A number of people have clamoured against referendums and their various negative outcomes (Denmark 1992, Ireland 2001 and France and the Netherlands in 2005), suggesting that, in fact, the problem was that such complex and entangled issues as those contained in the Treaty were not suitable for referral to the popular vote. The argument rightly says that whatever the question actually is, the voter might use his/her response to answer other hypothetical questions, such as regarding the government’s popularity and performance, globalisation, etc. Some politicians and academics have argued that, while European States are representative democracies, positing direct democracy as a superior procedure was a mistake, or even unacceptable. While these issues are debatable in theory, the concern for the procedure for ratification chosen in each country conceals a more necessary reflection in the context of treaty reform: why should decisions triggered by problems that are strictly domestic in scope (indeed, sometimes restricted to a particular industry) and bearing no relation to the Treaty unleash a European crisis? The magic wand that enables this transformation is the rule of unanimity for treaty reform. There are reasons to question the unanimity requirement, but before presenting them, the process of ratification in the Irish referendum must be placed correctly in context so as to appreciate that, while it was a significant obstacle, it was by no means the only one.

Other Political and Legal Landmines
For a start, the intervention of national parliaments has not been free of difficulties in some countries, where a majority of more than 50% is required to ratify the Treaty. In Slovakia, for example, a dispute between the government and the opposition regarding a controversial law on the media held up ratification for three months. In Poland, where the opposition’s support was also necessary, the Kaczynski Brothers’ Law and Justice party forced a series of concessions before granting their Parliamentary backing to the very treaty which they themselves had negotiated when in government. In the Czech Republic, the government’s cool attitude towards Europe linked ratification of the Treaty to parallel ratification of a treaty with the US to allow an anti-missile radar to be installed on Czech soil.[1] And in a traditionally pro-European country, Italy, one of the governing coalition parties, the Lega Nord, has asked for a referendum to be held to ratify the Treaty. Furthermore, a number of consulting and/or legal bodies, invited to join the party, are playing a pivotal political role. The Council of State in the Netherlands or the Danish Justice Minister’s legal advisory group have been key to determining whether or not the text should be submitted to referendum. Jurisdictional bodies can transform ratification into constitutional reform or not. The case of Spain in 2005 illustrates this point. Here, the Constitutional Court acted with evident political responsibility and a sense of duty to the State in resolving the case posed by the Council of State when the latter suggested that it interpret the compatibility between the principle of supremacy of EU law and the position of supremacy of the Spanish Constitution according to the treaty. In a brilliant work of conceptual alchemy, it was able to separate primacy from supremacy and allowed the country to sidestep the awkward process of constitutional reform. However, in Ireland, since 1987 the Supreme Court has established an interpretation which obliges every EU reform to be treated like a reform of the Irish Constitution. Against this backdrop, it should not be forgotten that in both Germany and the Czech Republic, the respective national courts have been asked to issue rulings on the constitutionality of the Lisbon Treaty. Lastly, we cannot rule out the ‘creative’ intervention of Heads of State determined to preserve the essence of democracy and national sovereignty, as happened in the past with Mitterrand and Chirac, and as may happen in the present in central Europe (the Czech Republic, Poland and Germany).

Why is Unanimity Not Suitable?
Having pointed out certain ‘landmines’ whose explosive charge contains a domestic component but whose shock waves affect the whole of Europe, we now proceed to present the reasons against unanimity based on the Irish case. The first is that in practice the principle on which unanimity rests, namely equality between member States, is breached. Because in all cases where there have been negative votes, the disobedient citizens have been asked to vote again to amend their error. In all cases? Well, not exactly, France (and the Netherlands) did not have to repeat their vote, perhaps because there were two of them and perhaps for other reasons. In Ireland’s case, there have been a number of calls for a second chance, and if this does not come it will be due to the difficulty of inviting the Irish to taste a dish rejected by the French and Dutch, and the effect this would have on the results.

A second reason is purely practical: with more ratifications required for any EU reform to enter into force, a larger number of nations involved and an increasing internal plurality in many States, the possibilities that such a large number of players with a veto actually reach an agreement is exponentially lower. This applies to any reform, although it is obvious that the more significant the reform is the smaller the chances of an agreement, at least in principle. Accordingly, the solutions which seek to achieve an adjustment in substance acceptable for all are something of a chimera, as the case of the Lisbon Treaty has shown. There will always be sectors in any country which will object to questions that are considered to be secondary in others, and, if the ratification procedure provides the least opportunity, they will be in a position to blast the entire process off course.

Thirdly, there is the democratic argument. Mistakenly, it is portrayed as antidemocratic that a small number of voters can decide the fate of 500 million people. In Ireland’s case, a difference of 110,000 votes tipped the balance between a ‘Yes’ and ‘No’ vote. In fact, it is worth taking a more subtle look at the objections: what this means is that unanimity protects demoi separately; however, by imposing the decision of one of these democratic blocks upon all the rest, it is tactically creating a single demos (in other words, citizens who are subject to the same law and who, therefore, must participate in the decision). Accordingly, it is not a question of the size of the minority versus the majority, but that the unanimity rule is only valid if there is no minority.

Finally, the fourth argument against unanimity has to do with the capacity of externalising the cost of the decision (in other words, passing it on to people who have not been involved therein). The Danish ‘No’ to Maastricht is the clearest example of this, since it triggered a monetary storm which was resolved by devaluing several European currencies (including the peseta, sterling, the lira and the franc), but not the Danish crown. It remains to be seen what the effects of the ‘No’ to Lisbon will be for other countries; the question, however, is not whether there will be effects, but whether any State might freely pass on the effects of its own ‘sovereign’ decision to other countries. Obviously, the first effect of the Irish ‘No’ is to cancel the schedule for the Treaty’s entry into force and, therefore, the institutional reforms linked to it (such as the permanent presidency, etc).

What Now?
Readers may be interested to know what the immediate future scenarios are. Well, without going into detail, the surprising discovery is that, despite the unanimity requirement, these scenarios do not depend materially on Ireland, but on the interpretation by other States of the result of the Irish vote. If ratification continues and 26 States manage to approve the Treaty, Ireland will be in an untenable position and will have to seek a solution (18 States have so far completed the process). The positions of France and Germany and other States which have not yet ratified, like Spain and Sweden, are very important to set the course in the next few weeks. In this scenario, the key States are those whose governments and/or broad sectors of the electorate are Euro-sceptic, such as the UK and the Czech Republic. The UK completed the initial Parliamentary process and the House of Lords concluded its third and final reading of the Treaty before 20 June. Furthermore, the government has stated that it will go ahead with the ratification process regardless of the Irish ‘No’ vote. In principle, the case before the courts regarding the electoral promise of a referendum on the Constitution/Lisbon Treaty looks like having little chance of prospering. As for the Czech Republic, as we have seen, the government has dug in its heels with a delaying tactic, by sending the Treaty to the Constitutional Court for examination. Although in the Czech Republic there are broad sectors against, not only the Treaty, but the EU itself, so far there are no reasons to believe that the ratification process will be halted. In addition to these two countries, the Netherlands might have a significant symbolic role to play: the argument put forward by the Dutch government in 2005, perhaps even more strongly than France, was that the Dutch ‘No’ definitively put an end to the Constitution. The Netherlands have not yet ratified the Lisbon Treaty, so the government, parliament and public opinion (perhaps) now face the prospect of having to take a cynical stance: either they assert Dutch national sovereignty by proceeding with the ratification (in direct contradiction with the argument used in 2005) or they surrender in the interests of coherence.

Conclusion: What we have said so far may imply that, despite everything, ratification by 26 States is a fact and the Irish ‘No’ is no more than a serious setback. However, the situation is somewhat less stable than that. The Irish ‘No’ vote would have real blocking value if it were supported by additional objections to the Treaty. Consequently, if another of the many players with ambiguous views were to use this as an excuse to disrupt the ratification process, there would be a domino effect which would effectively put an end to the Treaty (opening up a number of additional scenarios, like the naive belief that Croatia’s Membership Treaty could be the deus ex machina for the current impasse). We have identified above some of the possible players who could take on this role and have an impact on the process and it would be suicidal to think (as European leaders did think) that the exclusion of referendums would mean absolute control over the process.

At all events, both scenarios confirm the premise set forth above, namely that whether or not the Irish ‘No’ is provisional or definitive will not depend on the Irish. This raises another key issue: unanimity is an unsuitable procedure for reforming treaties. Unanimity is one of the EU’s taboo themes, and this makes it even more difficult to change: unanimity can only be reformed unanimously. However, this does not mean that it is impossible and perhaps the means to achieve this is through an isolated reform of article 48 of the Nice Treaty, in other words, a reform of the treaties affecting only this article. It could hardly be claimed that this affects the sovereignty of any member State, and this would defuse demands for ratifying this mini-reform.

Carlos Closa
Scientific Analyst, CSIC

[1] Ratification in the Czech Republic is not only complicated because the Constitution requires a three-fifths majority in both Houses of Parliament, but because the governing centre-right tripartite coalition scarcely holds an absolute majority in Congress and does not enjoy great internal cohesion. In this context, the Civic Democratic Party (ODS) which dominates the coalition and has significant Euro-sceptic factions has, albeit informally, linked ratification of the Lisbon Treaty with obtaining support from their minority partners and the Social-Democratic opposition for their agreement with the US concerning the anti-missile radar.