A referendum is supposed to be an apex of democracy as all the members of an electorate have the opportunity to either accept or reject the proposal that is put to them. In Switzerland referenda are a fixture of the Swiss political system and have been held on a great variety of subjects, lastly on a proposal to toughen the Swiss system for granting the Swiss nationality to foreigners. In spite of a robust campaign in favour of the proposal, it was soundly rejected which shows that referenda don’t necessarily favour “populist” proposals which play upon the (supposed) fears of the electorate. But then, referenda in Switzerland are a staple of the Swiss system, not an extraordinary technique seldom used and with great intervals. Nor are they used as plebiscites as was the case in France during the presidency of Charles de Gaulle. He used them to overcome the reluctance of the French Assemblée Nationale to adopt some of the reforms he advocated.
The French followed him until he put to them a last rather innocuous referendum on regionalisation, after the turmoil of the spring and summer of 1968. He lost it, and he duly resigned.
François Mitterrand put the Maastricht Treaty to a referendum and he won it  narrowly only because the then opposition parties decided to support the Treaty.
As we know, Jacques Chirac was not so lucky with the Constitutional Treaty, nor were the Netherlands who had never before organised a referendum. Ironically, it was the Dutch Parliament which decided to put that same treaty to a popular vote, thereby actually handing over their constitutional power to ratify ( or not) a treaty to the people.
Given this extraordinary power, the Dutch electorate decided to show its muscle and voted no.
Referenda on EU matters have failed before. The Danes rejected the Maastricht Treaty and only changed their minds after Denmark obtained a number of opts outs; the Swedes rejected the Euro; the Irish rejected the Nice Treaty in a first referendum but changed their vote one year later after a thorough and serious campaign.
And now the Irish have done it again. While more than half of the electorate chooses to stay at home, a majority of those who did vote upon the Lisbon Treaty have rejected it.
There are some lessons to be learnt from these occurrences, lessons on democracy and referenda and on the true nature of EU treaties.
 
Democracy and referenda

As indicated above, referenda are considered to be the apex, the triumph of democracy. But are they? Our democratic systems are systems of representative parliamentary democracy. The people elect their representatives and entrust them with the business of running the country. Every so many years the citizens express their satisfaction or dissatisfaction by their votes. If dissatisfied or simply bored, they vote for other candidates and parties than they did before. In majority systems, they send the outgoing government packing; in proportional systems they change the balance between the contending parties and thereby the government. 
Over the last two decades it has become fashionable to pit the voters and their representatives against one another. Representatives are mistrusted, suspected of favouring their small personal interests over the general good. The whole system of representation has increasingly come under fire.
Referenda, as a means of so called direct democracy, have been presented as a potent remedy to this state of affairs. Somehow the addition of the highly individual preferences of the members of the public has come to be seen as having more validity and more legitimacy than the negotiated and debated outcome of a vote in Parliament, or of a governmental decision.
Interestingly, this has come to pass because the members of the public themselves put their very own, private preferences of the moment over anything else.
Referenda however are a blunt instrument because they only allow for a yes or a no; no amendments are possible, no accommodations.
They may be well suited for simple issues, like decisions on a parking lot, or on specific legislative changes like the one that was put to the Swiss public lately. 
And even then it is useful to provide for some conditions to ensure a minimum of validity to the outcome. These can consist for instance in the requirement that a sufficient percentage of voters should participate in the referendum for its outcome to be binding.
Referenda on whole bodies of regulation or legislation are particularly tricky.
As far as I know nobody ever seriously contemplated to put a Civil Code, or a Criminal Code or a Commercial Code to a referendum. Most people would readily agree that such bodies of legislation are far too complex to be put to a yes or no vote. They have been developed over time, often over several centuries, and most people are content to entrust them to the specialised legislators of their parliament which then votes upon them in plenary.

The EU treaties are complex bodies of legislation and regulation.

Right from the start, the treaties establishing the European Union have been complex bodies of legislation and regulation. Why this is so is easy to understand. They establish the institutions of the Union; spell out their competences and their functioning; they regulate the relations between those institutions and the member states and spell out how these relations must be conducted. Of necessity, they need to do this in painstaking detail to protect the interests of everybody involved. They truly lay the foundation for the entire functioning of the Union in all of its aspects and they are the basis for the judgments of the Court of Justice. This is one more reason why they need to be detailed and leave as little space for individual interpretation as possible. They need to do that because they specify the rights and the obligations of all parties involved.
Again how could they be anything but complex?
To use this complexity against the treaties is misleading in the extreme and those who do this do this knowingly.
One can only wonder why those who have negotiated the treaties and the many who have worked with them for over fifty years are unable to articulate this reality.
But treaties they are, that is agreements between sovereign member states which must be ratified by each of them in order to enter into force. This is what until today all of  the member states want them to remain, in full knowledge that this renders the adoption of necessary and unanimously agreed upon changes very difficult, as has again be demonstrated just last week.
The Irish people, for better and for worse, have had their say. Let each of the states which haven’t yet completed the ratification process do so, so that in a few months everybody knows how things exactly stand. In the meanwhile, everybody, also including the Irish people, should carefully weigh the pros and cons of the present situation and the available possibilities.

Annemie Neyts – Uyttebroeck

Minister of State, MEP
President of ELDR