On 19th October, the Republic of Ireland held a second referendum on the Nice treaty. That treaty, signed at Nice in December 2000, restructures the European Union, ostensibly with the aim of permitting the accession of 10 new member states in 2004. The first Irish referendum on Nice, which had been held in June 2001, had produced a clear negative result, to which the Irish government reacted by telling the other EU member states to press ahead with their ratification processes. This they duly did, and so when the Irish government put the same treaty before the Irish electorate a second time, a fait accompli had been created, in which Ireland was the only country not to have ratified the text. All other EU states ratified the treaty through parliamentary means. It is a sad reflection on the state of democracy in Europe that the only country to have held a democratic vote on this latest stage in the EU integration process should have deliberately ignored the results of a perfectly legitimate vote in 2001, only to submit the text again a year later. It goes without saying that referendums which produce Yes results are never run a second time.
The run-up to the poll
The last couple of years have seen a number of defeats at the hands of voters for the EU integration process. The referendum held in Denmark in September 2000 on whether to adopt the euro produced a No. The referendum held in Switzerland in March 2001 on whether to open immediate negotiations on EU membership was also defeated. Finally, the first Irish referendum on the Nice treaty, held in June 2001, also produced a No.
It is no doubt for this reason that referendums are increasingly uncommon as a means of ratifying European Union treaties, even though all these treaties have serious constitutional implications. For all of them change the way in which laws are made in the EU, i.e. the way in which laws are made for each member state.
The treaties which govern the running of the EU need to be ratified by all member states for them to be valid. In spite of its increasingly state-like appearance, the European Union remains in constitutional fact a classical treaty organization. It has no autochthonous powers of its own, but only those delegated to it in treaties by the signatory states. Following the rejection by its voters, the Irish government should have gone to the other EU member states and told them that the treaty could not be ratified in its present form, but that it had to be re-negotiated.
This need was especially pressing since it was obvious that the concerns expressed by the first No vote were not the result of some ephemeral quirk in the electorate’s mood, but instead the result of serious worries about the very substance of the treaty. In particular, Irish voters were worried about the militarization of the European Union, for which the Nice Treaty makes provision, and about the reduction of the role of small countries in decision-making: under the terms of the Nice Treaty, as membership grows, not all states will necessarily have a Commissioner in Brussels (the European Commission is probably the most powerful organ in the EU structures). Moreover, the Nice Treaty is structured in such a way that sub-groups of states will henceforth be able to initiate new common policies and new forms of co-operation in the European Union’s name without all EU member states having to give their agreement. This process is known as “enhanced co-operation”. This means that small countries are likely to lose control of the institutions to which they belong. The fact that the very purpose of the Nice treaty is to reduce the ability of states to prevent such developments was made clear in the British House of Commons when the then Foreign Secretary, Robin Cook, attacked Tory opponents of the bill by saying that if they wanted a British veto, then they would be voting for a Maltese veto and a Bulgarian veto as well: the tone of his voice was sufficiently contemptuous to make it clear that he regarded it as outrageous that such small countries should have a veto. In other words, the express purpose of the Nice treaty is to disenfranchise small states.
There were, therefore, perfectly legitimate reasons for the citizens of a small country to vote against a reduction in their own country’s powers. The votes of the Irish should, moreover, have been prized all the more highly because they were the only country in the EU to be allowed a vote on the matter. Instead of this, they were ignored.
This was not the first time that the EU integration process has overridden the results of a democratic vote. In June 1992, Denmark rejected the Maastricht treaty. The reaction of the Danish government, and of the other EU states, was the same as it was to be a decade later in Ireland: the other EU states decided to press ahead with their own ratification process in order to present Danish voters with a fait accompli. In particular, France announced its own decision to hold a referendum on the same treaty, in order to give some sort of popular momentum to the ratification process. However questionable the decision to ignore the Danish vote, it must at least be admitted that the French in 1992 had the courage to put the controversial treaty to the voters. No such suggestion was forthcoming in 2001, and instead Ireland was the only country to hold a referendum on the treaty.
It is supremely ironic that such anti-democratic shenanigans are undertaken in order to make the EU capable of admitting new member countries from the former Eastern bloc. For the structures of the EU are themselves now explicitly anti-democratic. Many people argue passionately that the EU is necessary to promote peace, security and democracy across the European continent. But how can such an outcome are achieved unless the electorate fully supports the institutional development of the EU at every stage? European politicians are always saying that they want to bring the EU’s otherwise opaque decision-making processes closer to citizens. How can they do this by ignoring them when they vote the wrong way?
Serious human rights issues are also raised by the fact of the Nice Treaty itself. One of the most important elements of a constitutional order is legal certainty. If the law keeps on changing, then law loses one of its most important functions, the provision of stability in a changing world. It sometimes seems as if the European Union is animated more by Leon Trotsky’s theories of permanent revolution than by any desire to promote stability and legal certainty, for the Nice Treaty is the fourth major revision of the EU treaties in fifteen years. Indeed, the structures of the European Union have been in a permanent state of institutional upheaval since the mid-1980s, and this situation is likely to continue for the rest of the present decade.
Moreover, all the institutional changes which have been undertaken during this period have the same effect of reducing democratic control over the decision-making process. The Single European Act of 1986 removed parliamentary control over important areas of policy by introducing Qualified Majority Voting in the Council of Ministers, where previously unanimity had been required. This reduces parliamentary control because it means that national ministers, perhaps acting on a mandate from their national parliaments, can be simply overruled, without the Council of Ministers itself being accountable either as a body or individually: the meetings and votes in this, the legislative organ of the EU, are held in secret. The Treaty of Maastricht signed in 1992 ratchets the centralization of power up even further, not only by increasing the policy areas subject to majority voting but also – and above all – by creating a single European currency. This treaty meant that a massive tranche of national executive power was centralized in the hands of an unaccountable body, the European Central Bank in Frankfurt.
The Amsterdam Treaty of 1997 centralized power further by removing the national veto in new areas. At the time, this treaty was justified in the name of the desire to extend the membership of the EU to include new member states. (Indeed, the creation of the single currency was also justified in those terms in 1992.) But the Nice Treaty was signed in December 2000, and its purpose was to accentuate the power of the “hard core” of states which already belong to the EU or at least the hard core plus those other peripheral states which support them. By inventing the concept of “enhanced co-operation” the Nice Treaty removed from the EU’s structures the principle that the law must be equal for all states. Henceforth, groups of states will be able to “integrate” with each other more rapidly, without the others being able to prevent it – even though the result of that integration will be to act in the EU’s name.
The EU’s practice over the last decade and a half has therefore been to change its fundamental institutional structure every four or five years. This is evidently going to continue for the foreseeable future. For it is likely that this “enhanced co-operation” in Nice will be invoked for the forthcoming “European Constitution” which is supposed to be signed in 2003 and presumably ratified the following year. If any states find that, because of popular opposition, they cannot ratify the new constitution, and then the other states will simply go ahead without them, creating new structures within those of the present EU. States will thereby completely lose control of the future development of the Union.
There are therefore very considerable matters of constitutional and legal importance at stake in the ratification of the Nice Treaty and it is deeply ominous that the EU has had to override a democratic vote to achieve its ends. The most important human right, after all, is the right to self-determination and the right to have some influence over the laws which are passed in one name. The European Union removes these rights as a matter of institutional principle.