The UK has decided which question will be asked in the EU Constitution referendum in, er, late 2006: “Should the United Kingdom approve the treaty establishing a constitution for the European Union?” The Dutch Parliament has just nominated the committee that will oversee the organisation of the Dutch EU referendum and also formulate its question. Similar processes have started in most countries where referendums will be held. Most will come up with a referendum question along the same lines as the United Kingdom, that is, roughly: Would you vote yes or no to the Treaty text signed by the government leaders?.
But is it correct to ask the question like this? Put in this way, it is clear what happens if a majority votes ‘yes’. But is it equally clear what it means to vote ‘no’? Hardly, of course… hence the debate that has started on precisely this issue in many countries, especially in the UK. The British government says the referendum is about British membership of the EU: voting ‘no’ would mean that Britain leaves the EU altogether. And while there are some on the far end of the ‘no’ who wholeheartedly agree, such “scaremongering” tends to upset many EU-moderates as well as those EU-sceptics who merely wish to see the EU transformed into a free trade zone.
It is clear, therefore, that the question, as it is going to be asked in the UK and most probably in the other countries holding a referendum, does not clearly present the choice voters are expected to make. If they vote yes, their respective governments will ratify the Constitution(-al Treaty) as the referendum question says. But if they vote no… the Treaty of Nice will stay in force, at least for the time being.
Now, the Nice Treaty is a bad treaty – both EU-sceptics and EU-enthusiasts agree about this. It is bad even compared to the preceding Amsterdam Treaty, also from both EU-perspectives, in the sense that it took quite a few issues from unanimity to QMV in the Council without simultaneously improving the EP’s powers to exercise democratic control in the same areas. Add to that other flaws like an ill-considered distribution of voting weights in the Council (which gave Poland relatively more weight than warranted by its population size, whereas the Czech Republic and Hungary got a smaller weight than other countries of the same size), and it is clear that the choice put to voters in the referendums is not between the EU Constitution and the EU as it used to be, or even between the EU Constitution and the Nice Treaty, but between the EU Constitution and a revision of it (or of any other treaty) which we would still have to negotiate about.
But this is where it gets problematic. Normally, if a law or a treaty is subjected to a referendum, you ask the entire demos it concerns to vote. If they vote ‘no’, you try again with a new version of the text, altered on the basis of the public discussion during the referendum campaign in such a way that the odds for a ‘yes’ are better the second time. On the EU Constitution, however, we are asking twenty-five different demoi, which means that if one of them votes ‘no’ because it thinks there is too much “X” in the Constitution, another one might vote ‘no’ because it thinks there is too little “X” in the Constitution. So as long as you think the twenty five demoi should have anything to do with each other at all (even if only through a free trade agreement), the puzzle becomes almost impossible to solve as every one of them has a veto on the end result.
I think this actually is the situation in the EU right now – although each of the referendum debates is so confined within the own demos that it will go unnoticed in most of them. Those French socialists who are opposed to the Constitution argue it is clearly a “neo-liberal” project, yet British Tories say the Constitution is far too “socialist”. Dutch, British and other taxpayers in rich member states want to see a reduction of the EU budget – and of their own contributions to it, yet for every significant budget post (agriculture, regional aid to the old poor member states, regional aid to the new poor member states…) there is a national champion prepared to defend it with its veto (France, Spain, Poland…). There are those in small countries who believe the EU is run by the larger ones and those in large countries who believe it is their sovereignty which is under threat, those who want the EU to become a world power counterweighting the US, those who do not want it to be a world power, those who do not want it to counterweight the US, etcetera.
Mystifyingly, every one of those opposing the Constitution for the reasons I just mentioned seems to think that a better deal is possible. So, apparently, we would get an EU that is both less and more socialist, both a free trade agreement and a common welfare state, both cheaper for the rich and more generous for the poor, with more influence for both smaller and bigger member states. Perhaps it is me who lacks imagination, but I do know a bit about the distribution of views and powers in Europe, and I do not see how the compromise between all these views could get any better than it is now in the Constitution. I can see room for some window-dressing like Denmark got after it first voted ‘no’ on the Treaty of Amsterdam. But a significantly better deal for any party without upsetting any other party sufficiently to make it vote ‘no’ in its turn (and remember, any new deal would again have to be ratified by all) – no.
So is there any way out of this Catch-22? I can see only two of them:
- One would be to give up national vetoes when ratifying any new treaty regulating cooperation withing what now is the EU. Instead, you could require that ratification requires the consent of at least x% of the population and y% of the member states (x and y both larger than 50). This would make the procedure analogous to the one required for changes to the Swiss constitution, or, if you replace the referendums by parliamentary votes, to changes of most other federal constitutions in the world. It would certainly be the most rational and democratic solution – it is (therefore?) also the least feasible one (not to mention that it is legally problematic as the fiction of national sovereignty must be upheld).
- The other one would be to treat the vote on the EU Constitution as a renewed vote on EU membership for each country (ideally, the procedure above would be included in the text first, or the problem returns next time the treaty is changed). This means that the choice put to voters in the Constitution referendums would be between either accepting the Constitution as it is (of course without excluding any future changes), or renouncing membership altogether. That would have the advantage that a ‘no’ vote by one country does not allow it to block all the others who do accept the deal, which, to me, seems a lot fairer than the current procedure.
Sometimes, scaremongering might be the honourable thing to do.