Sunday, August 05, 2007

On referendums - Part II


@Anon, again. Referendums are not required for democracy. At least half the EU (off the top of my head: UK, NL, Belgium, Lux, Germany, but I could probably find more if I did some googling) have never had a referendum on anything other than the EU, and have no constitutional tradition of having referendums. It simply does not fit in our democratic traditions, and the 2005 constitution referendums show why: people voted "no" not only on reasonable grounds (e.g. protecting national identity) but also for reasons that had nothing to do with the EU (e.g. dissatisfaction with the national government) and for reasons that were outright stupid (e.g. the Treaty is too complicated; I don't understand it).

We should never have a referendum about anything ever again, and leave our elected representatives to do their jobs instead.
Posted by martinned on juli 24, 2007 at 04:45 PM CEST


@Robin: If our elected representatives "allow" (your word, not mine) a referendum, what they're essentially doing is passing the buck. Rather than showing some leadership and passing the buck, they're choosing the no-risk option that has the lowest likelihood of backfiring.

As for your second comment: I don't see how anything I've said about referendums undermines my position that laws passed by the legislature should be annulled if they violate civil liberties.
Posted by martinned on juli 25, 2007 at 06:41 PM CEST


Marcel's comment has so many wrong statements, I hardly know where to begin. Why not at the top:

Well, martinned, 2 years ago many people that voted yes on the constitution establishing the fourth reich in Europe, also voted yes for the wrong reasons.

Letting this "fourth reich" BS slide for the moment, I've hardly said otherwise. I am against referendums regardless of whether I think I am going to agree with the outcome.

Many blindly voted yes because they have been brainwashed to believe the EU is something good (which it quantifyably is not).

I'd like to see how you quantify that one, because particularly in fields that you can quantify, like the economy, the EU has helped tremendously. Most people's problem with the Union lies exactly in areas that you can't quantify.

This matter cannot be left to the politicians because, as I said, many of them have a vested interest in approving it.

I'm still not quite sure how that argument works. How does ratifying a new treaty increase the number of jobs available in BXL? For one, it reduces the number of people in charge of RELEX. Or are you saying that there are going to be more civil servants in Brussels as a result? Surely not, because that would make no sense given your argument, since I hardly think that national parliamentarians want to be EU civil servants, not to mention that it is much easier to get a job as a national civil servant, given that there are only about 25.000 EU civil servants to begin with. Could you explain this one to me again?

National parliaments are holders of sovereignty, but not the owners of said sovereignty. The owners are the peoples, who have not ever given a mandate for giving that sovereignty away. This is why on matters such as this a referendum is a requirement. Parliaments cannot approve this without a clear mandate which (certainly in case of the Netherlands) they don't have (it wasn't an issue in the election therefore they have no mandate for it).

Well, for starters in most countries (not the UK), the official doctrine is that the people are sovereign, and this sovereignity is certainly not being given away. Your distinction between the "holders" and the "owners" of sovereignity is a nice bit of property law, but otherwise completely new to me. As for what parliament have the mandate to do, please look at art. 34 of the Belgian constitution, art. 91 of the Dutch constitution, or any equivalent article in another constitution, all of which discuss the treaty making powers of parliament. (In case you hadn't noticed, that's what constitutions are for: establishing exactly who can do what.)

The second coming of the constitution (a treaty, as was the first one) must be stopped at all costs. Everyone with some legal wit knows that this 'new' treaty is the same thing as the 'old' treaty (which they had called constitution). As a matter of fact, this 'new' thing goes even a bit further.

Both were treaties, and I tended to call the old treaty "Constitutional Treaty", just to be clear about that. And yes, to a large extent they are the same.

The 'new' treaty introduces (in Annex I, Title II of the European Council 'mandate' (page 27) proposes a new 'obligation' which requires that national parliaments 'work to actively support the funtioning of the union.

The principle of loyal cooperation is currently in article 10 of the EC treaty. Look it up.


How can it be a violation of national sovereignity if the member states give their consent? (And if they dont't the treaty goes out the window just like the last one.)

The EU tries to make national parliaments mere 'division' of the EU. Totally and utterly unacceptable.

In your mind, does this statement follow from your loyal cooperation faux pas? If it doesn't, I don't see how you arrive at this conclusion? The Reform Treaty will strengthen the role of national parliaments, although not to the point of giving them a red card. (Which, incidentally, I would be in favour of.)

It is clear that not only is the 'new' treaty almost a carbon copy of the 'old' one, in a few cases it goes even further!

Carbon copy goes a bit far, but more importantly: you have yet to give any example of where it goes further than the constitutional treaty.

Finally: I wish to state my demand of a referendum in every member state regarding the status of the EU as a supranational supergovernment. Do people want to be ruled by the unelected and unaccountable crowd? Then by all means continue. Do people not want this? Dissolve the thing now!

You are free to demand what you like. Unelected is wrong because the EP is elected directly, the Council consists of nationally elected representatives and the Commission is appointed (and, if need be, removed) by those two working together. Unaccountable is clearly rubbish, cf. what happened to the Santer commission, or how some states, such as Denmark, have very strict procedures allowing parliament to control what their representatives do in the Council. In many parliamentary systems, particularly, the close links between parliament and government mean that the latter can pretty much get away with murder. That also affects their freedom to operate in Brussels. However, that is clearly not a flaw of the EU, but of national constitutional systems.
Posted by martinned on juli 26, 2007 at 11:59 AM CEST


@Crapaud. (...) As for manifesto commitments, I'd say that they mean very little, although clearly more in the UK than here in NL, where we have coalition governments that are the product of negotiation. Anyway, to the extent that the Labour party promised in it's manifesto to have a referendum on the constitutional treaty, they'd better have a damn good story as to why they wouldn't have a referendum about the Reform Treaty. I'm not willing to exclude the possibility altogether that an adequate explanation might be possible (I will try to take some time to carefully compare the Reform Treaty to the Constitutional Treaty once the IGC is finished).

In any event, it's a moral obligation/political obligation, not a legal one. If the labour party break their promises, they can only be punished in the polls.
Posted by martinned on juli 26, 2007 at 02:36 PM CEST


Improving the system, for example by placing certain competences at one level of government rather than another is hardly passing the buck. The point is that decisions are made by professionals at that level where they are most appropriate. (No complaints against the principle of subsidiarity.) Abdicating one's responsibility under the constitution by having the decision made by amateurs who have had neither the time nor the opportunity to study the issue is passing the buck.

I don't think I've used the word "elite" in this comment series, although I know I've used it in the past. The point is that the people are free in all respects unless they consent to be restricted by laws, etc. (This is a social contract model, which is obviously not meant as a literal description of history...)

The best way to organise this, in my view, is representative democracy: The people choose "the best" from among themselves to study the problems society is faced with an enact the laws to deal with these problems. Periodic elections serve to renew parliament's mandate or take it away, based on the people's opinion on past performance, to the extent that they are capable of giving it, based on the extent that the candidates share voters' values and general outlook on how society should be run. Checks and balances between the branches of government are essential, just like the periodic renewal of the mandate.

Posted by martinned on juli 26, 2007 at 05:16 PM CEST


Just to clear up a few things at the same time: Since I study European Law for a living, I do consider myself an expert on that issue. At the risk of sounding arrogant, I'm afraid I'm running out of patience with our friend Marcel. Maybe if he can explain how the EP isn't a real parliament, rather than a real put relatively powerless one, I'll take the time to respond to his other points. As to the more general issue of who are the "elite", the answer is simple: the people decide in free and fair elections who they consider the best from their midst. In a practical model of voting there is a lot to be said about this, but as long as I'm sticking to a more theoretical approach, I'd consider the people's judgement unimpeachable; the elite are whoever the people elect to be the elite. (...)

Posted by martinned on juli 30, 2007 at 04:05 PM CEST


Responses to the last few comments, bulletpointed, in the order that the comments were made:

- The parliamentarians are not always right, but because they are full-time professionals, studying the issues before them as best as they are able, they are more likely to be right than the uninformed electorate.

- The Commission do not "strike out" legislation. The judiciary do so, based on their constitutional mandate, which positions them as protectors of the minority. The civil liberties described in the constitution and in various treaties describe ways in which the freedom of individuals and minorities cannot be reduced. (Put differently: free speech, for example, protects only impopular opinions). In the parlance of the US founding fathers, protection of this kind, as well as government through representation, are the key characteristics of a republic instead of a democracy. (Cf. art. IV (4), cl. 1 of the US constitution.)

- @Marcel: I have never claimed that the European Council's conclusions, as a point of law, restrict the IGC in any way. Legally, such a statement would clearly be incorrect. In fact, I don't recall saying anything about the relationship between the European Council and the IGC.

- More generally, the simple fact that the Treaty on European Union contains a procedure for calling an IGC does not mean that the EU has Kompetenz-Kompetenz.

- The EP does have parties and manifestos. Each national party that takes part in the election will write a manifesto. It is not my fault that no one bothers to read it.

- Influence on government formation is not a defining characteristic of parliaments. US congress does not have such influence, for example.

- Similarly, a clear division between opposition and government is also not necessary. In many parliaments, past and present, support for proposals is highly fluid and ad hoc. In fact, I would say that parliamentarians working in this way more effectively fulfull their mandates.

- @Guessedworker: I'm quite surprised that you got all that from my blog, given that I use it mainly to post pictures and various crap I find on-line.

- I would also say that the discussion I find myself in at present effectively demonstrates my ability and willingness to contradict the conventional wisdom.

- I kindly refer our friend Guessedworker to Godwin's Law.

- I'm not sure if legalism is the word. Being a jurist myself, I tend to have a particular eye for the legal aspects of certain discussions, but I always try be careful to separate them from the rest. At present, I don't see a particular legal angle.

- Generally, I think it is important to distinguish general models of how government ought to work from more practical discussions of how it does work. My arguments here go back to Edmund Burke, and they are meant to give a fairly abstract view, using insights from public choice theory and other forays of economics into political science. In my experience, the more you admit practical observations into the story, the more depressed you will get. (I.e. both government by representative parliament and government by referendum have significant drawbacks, thus again confirming that "democracy is the worst form of government except all those other forms that have been tried from time to time", to take the literal quote from Churchill.)

- The problem is that there is no such thing as a "real will of the people". To ascribe such a thing to individual voters, let alone to all of them collectively, implies a minimum of rationality and a minimum of informedness (that's probably not a word, I know) which they simply do not possess. The closest we can get is to admit a will of the people with respect to the question whether the past administration has generally done a good job, and which politicians have the confidence and trust of the voters.

- After that Guessedworker seems to be going off the rails a bit. Suffice it to say that, in my opinion, there is no such thing as "ethnic interests", and any appeal to it is nothing more than a populist, and often very dangerous, scam to manipulate the people. I'm not sure how Marx got stuck in this comment, so I'll let that rest for now. Dito for transgender individuals.

- Dito also for the Holocaust denial laws, except to say that I am generally against them, with the exception of Germany where I can understand their rationale.
Posted by martinned on juli 31, 2007 at 09:38 PM CEST


Responses, continued. (The previous comment was written in the evening of July 30, this one around noon on July 31.)

- Clearly Insideur wrote a longer answer on the "parliament" point, with pretty much the same counterexample: US Congress. My thanks.

- As for Marcel (31/07/07, 0859), I think he is confused between the rise of the regulatory state, generally, and the question of where this regulation comes from. There is no reason to believe that, if the common market were abolished, the national states would not enact similar legislation themselves. What's more, to a large extent the EU legislation that irks you was enacted to replace national legislation that already existed.

- Also, there is a problem with the word "free". Clearly, Marcel imagines a free market as something like the early internet: No limitations on anyone's ability to do as they please, consequences for others be damned.

- As for the trade barriers, there is very little excuse, other than to say that their unilateral abolishment is not in the best interest of EU citizens. Their original rationale, as that of the CAP generally, was to ensure food self-sufficiency in Europe after the war. (...)

Posted by martinned on augustus 01, 2007 at 11:31 AM CEST


Well, it is insofar not a constitution that the old treaty meant to replace all the founding treaties by a single document, while the new treaty, one its face, simply amends them in the same way as the SEA and the Maastricht, Amsterdam and Nice treaties have done.

And, even though the situation created by the new treaty does not differ a great deal from the situation that would have been created by the old treaty, that is not to say that this reform treaty makes greater amendments to the Community Legal order than, say, the Maastricht treaty.
Posted by martinned on augustus 01, 2007 at 02:28 PM CEST


@Robin: You're right, I meant to say that in a democracy, where majority rule governs in most circumstances, popular opinions do not need protection. Obviously, in a tyranny, many things, as well as people, that ought to be protected, aren't.

On any given issue, parliamentarians are usually less informed than at least some voters, that is true. That is why most parliaments have hearings, where experts and other stakeholders can inform them. However, since it is their job to be as informed as possible about the advantages and disadvantages of existing and proposed legislation, parliamentarians will inevitably be more informed than the average voter.
I, myself, for example, have very little interest for many of the issues parliament are faced with, and as a result I know fairly little about them. By delegating my decision making power to parliament, I can stay relatively uninformed, except for those issues that particularly interest me. In my experience, the same goes for most of my fellow citizens.

Which question, exactly, would you (Robin) like me to answer. I already said that the elite/parliament are certainly not always right. They are just more often right and more likely to be right than the average voter.
(Mind, I do not mean to imply that voters are stupid, although many of them presumably are. Instead, the argument is that a rational voter would simply not be prepared to pay the cost of informing herself, given the infinitesimal probability that her vote will turn out to be decisive. As a result, voters are only interested in political issues to the extent that they derive some exogenous benefit from this knowledge.)
Posted by martinned on augustus 01, 2007 at 08:22 PM CEST


@Crapaud: That was certainly not the point. Instead, Bigfoot and I meant to argue that you cannot get rid of excess regulation simply by getting rid of the EU. In fact, such aspects of EU law as State Aids law, the four freedoms, etc. often work as a barrier against regulation at any level.

(Examples: in the famous love-love-dolls case of Conegate, Case 121/85, the Court of Justice forbade the UK government from banning the importation of various sex toys on the basis of art. 28 and art. 30 EC., in the Asia Motor France case, Case T-387/94, upheld on appeal in C-401/96, the Court went after French regulation in the automotive industry on the basis of competition law. Even the Court's most important case, Cassis de Dijon, Case 120/78, ended with the annulment of certain French laws forbidding the importation of Cassis with less than x% (I can't remember the number) alcohol.)

Point is: the Community legal order is no different from the national legal order, in that there is a certain tendency to overregulate. At the same time, the Community legal order provides citizens with legal instruments to fight this tendency, much more so than certain member states. (Off the top of my head: in the Netherlands, the UK and France ordinary citizens cannot sue to have a law declared unconstitutional, let alone that they could sue on the grounds that it is stupid.)

Other examples:
- Commission v. UK, Case 261/85, Court stops UK overregulation in the milk industry
- Dutch Plant Checks, Case 272/80, Court forces Dutch regulatory agency to accept mutual recognition
- Gilli and Andres, Case 788/79, Italian overregulation of the vinegar market
- German beer case (aka Reinheitsgebot case), Case 178/84

The list goes on and on...

Posted by martinned on augustus 02, 2007 at 02:28 PM CEST

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