Finally, what does the analysis of the EUA legislative design tell us about the potential for enhancing the EU’s democratic legitimacy, through increasing citizen influence over the UK’s EU policy and legislative agenda and the ability to challenge established preferences? In addressing this question we return to the classification of referenda in the EUA according to their initiation and the extent to which the result is binding, and what this means for the democratic criteria of increased citizen influence over agenda content and over agenda outcomes. As with the ECI, the two key factors for how strongly these criteria are met are the institutional mediation of the EUA referenda and the extent to which they enable citizens to challenge established policy preferences.162
In terms of increasing the influence of citizens over the content of the policy and legislative agenda, the referendum is inherently limited. In a referendum citizens are asked to approve or reject a government proposal or decision in a specific policy area, but usually this opportunity only arises when the Government decides to offer it to citizens or when legislation triggers a referendum. The ability of citizens to choose the subject matter and the timing of a referendum will only be enhanced if the referendum is combined with a democratic instrument such as the popular initiative, which allows them to propose laws. As Lipjhart says, “The voters’ influence is strengthened a great deal if they are allowed not only to vote on propositions originating in the legislature or the executive but also to propose laws … The referendum by itself entails a very modest step towards direct
162 The issue of institutional mediation in relation to referenda is explored in detail in S Tierney, Constitutional
democracy but, combined with the initiative, it becomes a giant step”.163 The EUA has not introduced anything akin to the initiative to allow citizens to propose the subject matter on which referenda should be held on an ongoing basis, it has only established in law a promise that citizens will be able to have a direct influence on certain specified policy matters when these are engaged with by future governments.
As well as not providing citizens with an opportunity to choose when they want an issue to be the subject of a policy vote on an on-going basis, the Government also did not offer any means of direct participation for citizens to choose the subjects or criteria that have been included in the EUA as triggers for participation through referenda. The Government controlled and defined the decision as to when the EUA would provide citizens the opportunity to directly participate in EU policy. There is also no provision in the EUA for any direct involvement of citizens in the future redrafting of the EUA; for example, a requirement for referendum approval of changes to the legislation could have been included. As it stands, therefore, modification or repeal of the EUA need only follow the standard legislative procedures of the UK, and citizens will have no formal influence over the issues that may or may not be included as requiring referendum approval.164 If citizens have not been given control over the initiation of referenda and the policy issues they get the chance to vote on, the question becomes to what extent the legislative design of the EUA restricts government discretion over the initiation of referenda.
The EUA has moved the UK from its previous constitutional position of referendum initiation being formally controlled by the incumbent government to a position where there is a legal obligation to hold a referendum if any of the criteria established in the EUA are met.165 Until such time as the legislation is amended future governments are expected to abide by the referendum condition when it is triggered.166 Despite the importance of this legal prescription, future governments will still retain some degree of control over the initiation of referenda as provided for in the EUA, which will limit the reduction in institutional control over the UK’s EU policy agenda. First, through negotiations in the EU, the UK Government could choose to use its influence to try to avoid the issues that would trigger a referendum in the UK or modify the approach in addressing them.167 Secondly, the Government still retains control over interpreting whether a referendum has been triggered.
163
A Lipjhart, Democracies: patterns of majoritarian and consensus government in 21 countries, (YUP 1984) 200.
164 Political pressures, outside the legal avenues of legislative amendment, will of course still remain. 165
M Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart 2015).
166 There has been some implicit legal support for this in Wheeler v The Office of the Prime Minister [2014]
EWHC 3815 (Admin).
167
Politicians have been adept at interpreting the political situation to avoid fulfilling political promises to hold a referendum in the past, for example during the Lisbon treaty ratification process as promises were made and then reasons found for not holding a referendum. It is possible that future Governments will be just as adept at interpreting the legal provisions of the EUA to avoid holding referenda, although the provisions in the EUA will make this more difficult.
The EUA has been described as establishing a ‘referendum lock’ that guarantees a referendum will be held when there is any transfer of competence or power to the EU from the UK; but there are gaps in the provisions that could be exploited, such as the lack of a requirement for referendum approval for the UK to join an enhanced cooperation group even if this means new competences for the EU with regard to the UK, which would normally trigger a referendum; there may be some discretion for the Government when deciding whether competences have been increased; and the significance clause specifically provides for discretion in some limited areas.168 As a result, not only have citizens not been given increased influence over the policy agenda issues that a referendum might be held on, but the promise made to them in the EUA to hold referendum under certain conditions might also not be as locked in as it first appears.
Furthermore, the complex and inconsistent framework for the referenda criteria that is the result, in part, of attempting to tightly restrict future government discretion could paradoxically have left the EUA more open to amendment and give future governments the opportunity to increase their discretion. This hypothetical situation might arise, for example, if costly and time consuming referenda start to be needed regularly on minor policy issues, or if the UK starts to be marginalized in the EU because of complications arising from the EUA provisions, or if the sheer number of referenda undermines their value in the eyes of the public. These issues could lead to a future government deciding that amendment of the EUA referenda provisions was necessary, which would afford them an opportunity to alter the political tone of the legislation or reduce the use of referenda that might not otherwise have arisen if the legislation had been drafted in a more straightforward manner. Despite the possibility of amendment of the EUA and Government discretion, the control of future governments over the initiation of referenda, in the policy areas covered by the EUA, has been limited to some degree, and there will be occasions when approval by referendum is legally required; particularly for the more significant EU related events, such as the ratification of treaties. More experience is needed, though, of how the legal provisions of the EUA are to be applied, and how future governments respond to the existence and content of the
168 For ‘gaps in the armour plating of the Act’ see M Gordon and M Dougan, ‘The United Kingdom’s European
legislative provisions for referenda, before a proper assessment can be made of the extent to which this potential for institutional control over the holding of a referendum is realised.
Subsequent to confirmation that a referendum is to be held, there is the opportunity for the authorities to influence democratic participation by referendum through its administration. The Government has significant control of the process that is followed during a referendum because they set the question, the precise timing of the referendum, and frame the political agenda environment within which public debate occurs; all of which influences the voting decisions in the referendum itself and potentially allow the Government to increase the support for its preferred policy position.169 The EUA only addresses this issue directly by requiring a separate question on the ballot paper for each treaty or decision that the referendum is deciding upon,170 and by stating that the Electoral Commission is responsible for public awareness of the issues.171 The potential for institutional control as a result of electoral administration is moderated in the UK through the Political Party Elections and Referendums Act,172 which sets parameters for the funding of referendum campaigns, gives the Electoral Commission some influence, in an advisory capacity, over the question that is set in a referendum,173 and requires a separate act of parliament for the rules and processes of each referendum held, which further disperses control. Although the administrative control of the referendum process has an influence on a referendum result, the lack of specific provisions in the EUA relating to this issue mean that it is not discussed further here. The point at which the institutions have least control over a referendum is when citizens vote. Citizens are free when voting and when the ballot has been held in a fair manner there is the potential for a vote contrary to the institutional policy preference. Given the limited citizen control over the timing, procedure or subject matter of the referendum in the EUA, this relatively direct legal impact of a vote cast by citizens on a specific issue is the principal means by which the EUA will influence EU democratic legitimacy. It is clear from the drafting of the EUA that the Government should be bound by the referendum result when the result is negative: the referendum condition is only met if “the majority of those voting in the referendum are in favour ...” of the relevant treaty or decision.174 This is true to the extent that when a government policy in relation to the EU is rejected
169 Tierney emphasises the importance of recognising institutional control over the referendum administration
process in S Tierney, Constitutional Referendums. The Theory and Practice of Republican Deliberation (OUP 2012) 109-116.
170
s12 EUA.
171 s13 EUA. 172
s103 Political Parties, Elections and Referendums Act 2000.
173 See S Tierney, Constitutional Referendums. The Theory and Practice of Republican Deliberation (OUP 2012)
ch 8, 226 -259 for detailed discussion of importance of the referendum question for democratic impact.
174
in a referendum, the treaty cannot be ratified and Council decisions cannot be approved. However, it is not as clear whether the Government should be bound by a positive referendum result, or what the response of the government should be following a negative referendum result beyond the initial non-ratification of a treaty or non-approval of a s6 EUA decision.
It would be surprising if a positive referendum result was not implemented by a government that has negotiated at EU level and reached a position where they wish to approve the decision or ratify the treaty. However, on rare occasions a Government may not want to implement a positive referendum vote. For instance, economic or political circumstances in the UK may change suddenly between the holding of the referendum and completing the ratification of the treaty, so that the Government no longer believes it is tenable or desirable to ratify a treaty, despite the referendum result. It is also possible that there is a change in Government in the time between holding the referendum and finalising the ratification of a treaty or approving a Council decision, and that the new Government does not agree that the referendum approval should be implemented. The EUA does not address this eventuality. The legislation clearly states that a treaty cannot be approved without a positive referendum result, but conversely it lacks specific legal provisions stating that referendum approval must be applied. The significance of this for the analysis of the EUA is that it is another example of the unidirectional nature of EUA provisions and reflects the appearance of a political rather than democratic motivation behind introducing the EUA referenda. This scenario also raises interesting constitutional questions, which are outside the scope of this thesis, about whether direct or representative democracy would take precedence when they would lead to different decisions, and whether there is the need to specify in legislation that a referendum result must be implemented.
The Government also retains control over action taken following a rejection for a policy position from citizens in a referendum, which could influence the eventual policy outcome of the vote by citizens. There are options open to a Government that is determined to get approval for the decision or treaty that has been rejected in a referendum vote. One option is to repeat the referendum and rerun the campaign in an attempt to have a different result second time around. This approach has been taken twice in Ireland when an EU treaty has been rejected by referendum and on both occasions the second referendum result approved the ratification of the treaty.175 This raised a number of questions about the enforcement of referendum results and the appropriateness of
175 For discussion of Ireland’s experience regarding EU treaty referenda see for example, C Costello, ‘People’s
Vengeances: Ireland’s Nice Referenda’ [2005] EU Const 357 or G Hogan, ‘The Lisbon Treaty and the Irish Referendum’ [2009] European Public Law 163. For more general discussion of the use of a 2nd referendum see G de Búrca, ‘If at first you don’t succeed: vote, vote again: Analysing the second referendum phenomenon in EU treaty change’ [2010] Fordham International Law Journal 1472.
holding a referendum again on the same subject, or how long it is appropriate to wait before a referendum can be validly rerun. The legislative design of referenda in the EUA does not address these essentially political decisions relating to the negotiation about a decision or treaty that has been rejected in a referendum vote in the UK. The key issue for this chapter is the potential institutional mediation that this lack of legal provision leaves in relation to a referendum vote. The Government will decide whether to renegotiate the decision or treaty, what the key issues are, and when a suitable point has been reached to present the decision to its citizens for a vote again. The voice of UK citizens has been injected in to the approval process but the existing institutions handle the echoes of that voice.
The legal provisions in the EUA may leave options open to the UK government in their response to a referendum result, but there is likely to be political pressure on implementing the result. Even for non-binding referenda that lack any legal obligation on a government to implement the wishes of citizens expressed in a referendum result there are likely to be political pressures on a government to ensure the implementation of the result. As Setala put it, “in established democracies it seems to be very difficult for parliamentarians to vote against the result of an advisory referendum”.176 The greater the level of support for an issue and the greater the level of turnout at the referendum the more difficult and less likely it will be that the government would ignore the result. Mendez, Mendez and Triga described the divide between legally binding and non-binding referenda as “being somewhat artificial” and cited Finland’s EU membership referendum as an example of an advisory referendum whose result it would be “unimaginable” not to be implemented.177 Similarly, none of the referenda that the UK national government has held before have been formally binding, but the results have always been implemented. On this reading, therefore, the EUA referenda results are likely to be implemented by the Government, even if the provisions in the legislation might legally allow an element of discretion at times. It is also possible, however, that the Irish example is indicative of the influence of EU membership on the political response to Member State referenda on important EU issues, which brings in to conflict the expressed wishes of a specific Member State and the political preferences of the other Member States. Similar pressure to find a ‘solution’ may be brought to bear on the UK government following a no vote in a referendum, which could also influence their political response to the referendum vote.
176 House of Lords Select Committee on the Constitution, 2009-10. Referendums in the United Kingdom para
193, available at <http://www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf> accessed 8 July 2015.
177 Finland is one example of a state with non-binding referenda – F Mendez, M Mendez, V Triga, Referendums
The final point about outcomes is whether, irrespective of the political pressures, the referendum result can be legally binding on any Government in the UK system, as a result of the provisions in the EUA, because of parliamentary sovereignty. The EUA not only imposes an obligation on future institutions to hold a referendum, when the criteria in the EUA are met, but it also imposes an obligation to abide by a result that vetoes a treaty or decision. As discussed above, the manner and form approach to parliamentary sovereignty is that future parliaments can be bound as to how legislation should be passed, in this case through the addition of the referendum condition.178 The new legislative process established for the issues covered by the EUA means that if there is a disagreement between a Parliament that wishes to approve a decision taken by the UK Government and citizens who have indicated through a referendum that they do not, then it is more likely now