Skip to main content
×
Home

The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience

  • Andreas Auer (a1)
Abstract

6 December 1992 – 9 February 2014 – 23 June 2016: three national referendums related to the European integration process, the first two in Switzerland, the third in the United Kingdom, with a hardly expected but unmistakably clear anti-European and anti-establishment outcome. The people have spoken, the matter is settled, governments have to abide. So goes the common understanding. In constitutional terms and in the theory of (direct) democracy, however, things may look different.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about sending content to Dropbox.

      The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about sending content to Google Drive.

      The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience
      Available formats
      ×
Copyright
References
Hide All

1 Art. 121a Control of immigration (unofficial translation)

1  Switzerland shall control the immigration of foreign nationals autonomously.

2  The number of residence permits for foreign nationals in Switzerland shall be restricted by annual quantitative limits and quotas. The quantitative limits apply to all permits issued under legislation on foreign nationals, including those related to asylum matters. The right to permanent residence, family reunification and social benefits may be restricted.

3  The annual quantitative limits and quotas for foreign nationals in gainful employment must be determined according to Switzerland's general economic interests, while giving priority to Swiss citizens; the limits and quotas must include cross-border commuters. The decisive criteria for granting residence permits are primarily an application from an employer, ability to integrate and adequate, independent means of subsistence.

4  No international agreement may be concluded that breaches this Article.

5  The law shall regulate the details.

2 Bundesgerichtsentscheid (BGE) 142 II 35.

3 Art. 140 of the Federal Constitution of the Swiss Confederation of 18 April 1999 (CH/Cst).

4 Auer A. et al., Droit constitutionnel suisse, vol. I L’Etat (Editions Stämpfli Berne 2013) N 810-819 .

5 Consistency of form means that an initiative is either a general proposal that has to be formulated by Parliament or a specific draft which cannot be altered; the single subject rule prohibits two or more not intrinsically interrelated proposals within the same ballot question; mandatory provisions of international law (jus cogens) are a few basic rules, like the prohibition of genocide, slavery and torture, of which lawyers say that no state can violate them (Art. 53 Vienna Convention on the Law of Treaties of 23 May 1969).

6 Bogdanor V., The New British Constitution (Hart Publishing 2009) p. 173-196 .

7 See generally Serdült U. and Welp Y., ‘Direct Democracy Upside Down’, 8(1) Taiwan Journal of Democracy (2012) p. 69-92 ; Papadopoulos Y., ‘Analysis of Functions and Dysfunctions of Direct Democracy: Top-Down and Bottom-Up Perspectives’, 23(4) Politics & Society (1995) p. 421-448 .

8 Kölz A., ‘ Die Bedeutung der Französischen Revolution ’, in A. Auer (ed.) Die Ursprünge der schweizerischen direkten Demokratie (Helbing & Lichtenhahn 1996) p. 105-117 .

9 Contra Trechsel A. H., ‘Reflexive Accountability and Direct Democracy’, 33/5 West European Politics (2010) p. 1050-1064 (holding that ‘the people’, as the highest organ of the state, is responsible to itself).

10 For the founding director of two academic research centres on (direct) democracy (Centre for Research on Direct Democracy, <www.c2d.ch>, and Zentrum für Demokratie Aarau, <www.zdaarau.ch>) this would be somewhat surprising.

11 Auer et al., supra n. 4, N 913-943.

12 Auer A., ‘Dürfen eidgenössische Volksinitiativen Grundrechte verletzen? Überlegungen zur Grundsatzfrage und zum Verfahren’, in G. Kreis (ed.), Reformbedürftige Volksinitiative (Verlag Neue Zürcher Zeitung 2016) p. 55-71 ; comp, BGE 142 II 35.

13 Keller H. and Balazs-Hegedüs N., Paradigmenwechsel im Verhältnis von Landesrecht und Völkerrecht? Aktuelle Juristische Praxis (Dike Verlag Zürich 2016) p. 712-724 .

14 Denmark, Ireland, United Kingdom, Austria, Finland, Sweden, Czech Republic, Estonia, Hungary, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, Croatia, France, Luxembourg, Netherlands, Spain, Italy, Greece.

15 Norway, Liechtenstein, Switzerland, San Marino.

16 See <www.c2d.ch>.

17 We follow a mixed typology relying partly on Mendez F., et al., Referendums and the European Union (Cambridge University Press 2014) p. 22-27 and partly on Auer A., ‘National Referendums in the Process of European Integration: Time for Change’, in A. Albi and J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Kluwer Law International 2007) p. 261 , at p. 264-269.

18 The six founding members (Belgium, France, Germany, Italy, Luxembourg and Netherlands) as well as the United Kingdom, Cyprus and Bulgaria.

19 Norway 1972 to EC and 1994 to EU; Switzerland 1992 to EEA.

20 United Kingdom remained in 1975, but voted to leave in 2016, as Greenland (Denmark) did in 1982.

21 Denmark (1986, 1992, 1993, 1998); Ireland (1987, 1992, 1998, 2001, 2002, 2008, 2009); France (1992, 2005); Luxembourg, Netherlands, Spain (2005).

22 Denmark voted twice on Maastricht (1992, 1993); Ireland voted twice on Nice (2001, 2002) and on Lisbon (2008, 2009).

23 France and Netherlands (2005) rejected the Constitutional Treaty.

24 According to Art. 88-5 of the French Constitution the referendum can be avoided by a three-fifths majority in each Assembly.

25 1997, 2000, 2001, 2005 (2), 2006, 2009, 2014.

26 Extension of the Bilateral Agreements to Eastern European countries (2006) and to Bulgaria and Romania (2009).

27 See, for instance, BGE 138 I 61 where the Swiss Federal Tribunal held that the (positive) vote taken by the federal electorate on 24 February 2008 on tax measures violated the liberty to vote (Art. 34 of the Federal Constitution) because government failed to give full information about the financial consequences.

28 Auer, supra n. 17, p. 267-268.

29 Cf. Auer A. and Flauss J.-F. (eds.), Le référendum européen (Bruylant 1997).

30 Mendez et al., supra n. 17, p. 218.

31 In the Greek referendum of 5 July 2015, organised within one week, 61% of the voters rejected the bailout conditions; government a few weeks later had to accept a deal with even worse conditions.

32 21 May 2000 (Bilaterals I), 5 June 2005 (Schengen/Dublin), 25 September 2005 (Enlargement Eastern European countries), 26 November 2006 (Enlargement financial contribution), 8 February 2009 (Enlargement Romania and Bulgaria).

34 It is true that Parliament has the right to initiate at any time a constitutional revision (Art. 194 of the Federal Constitution), but to do so in order to reverse a recent amendment accepted by the people would be interpreted as a violation of the popular will, a critique that neither government nor parliament can politically sustain.

35 See < petition.parliament.uk/petitions/131215>, visited 7 October 2016: ‘We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum’.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

European Constitutional Law Review
  • ISSN: 1574-0196
  • EISSN: 1744-5515
  • URL: /core/journals/european-constitutional-law-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 81
Total number of PDF views: 769 *
Loading metrics...

Abstract views

Total abstract views: 725 *
Loading metrics...

* Views captured on Cambridge Core between 6th December 2016 - 17th November 2017. This data will be updated every 24 hours.