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Return of the referendum?

More direct democracy could be Europe’s only means of restoring political legitimacy

“A referendum is a good idea, as long as ‘yes’ wins.” So declared Valéry Giscard d’Estaing on the occasion of the 2005 French referendum on the Constitutional Treaty for the EU. Many compare Emmanuel Macron to this former president and architect of the Treaty (even referring to the policies of the current French head of state as “neo-Giscardism”). In particular, they share two principal beliefs. The first is the conviction that the best cure for Europe’s ills is more EU. The second, going hand in hand with the first, is a pronounced aversion towards referendums.

Each of the three major political challenges Macron has faced over the past few years — the Gilets jaunes protests, pension reform and the immigration issue — have reawakened expectations for a referendum. One of the Yellow Vests’ major demands was the introduction of a popular initiative referendum into the constitution. On the question of immigration, the right called for a public consultation, in line with the wishes of the vast majority of the French (last May, such a proposal was supported by 7/10 of the French). Amidst the pension system reform, which sparked waves of protests, it was brought up once again. However, in each of these cases, Macron dismissed the notion of seeking society’s opinion.

The gap between the ruling elite and the ordinary people is growing in France and beyond. In 2021, the Jean Jaurès Foundation published a survey revealing that 60 per cent of French people “understand” those who commit physical violence against MPs. There could hardly be a stronger and more disturbing signal of discontent with the ruling class.

According to French lawyer and professor Ghislain Benhessa, the only way to fix the situation is to return to the referendum. In his Le référendum impossible, he outlines the rise and fall of this democratic tool, permanently discarded in France after 2005.

Had a referendum occurred, Louis XVI might have been spared

The history of the referendum in France begins with the Revolution of 1789, when its purpose was clear: to stop a radical minority from imposing its will on the moderate majority. Parisian ideologues demanded the king’s execution, but Girondins advocated giving the province its say. It was up to the people to decide whether to overthrow the system and execute the king, not a handful of extremists. Opposing this view, Robespierre maintained that one’s duty to the nation should take precedence over the majority’s opinion. Had a referendum occurred, Louis XVI might have been spared. 

A referendum served as a means for the French to endorse a lifetime consulate for Bonaparte. During the Restoration and the July Monarchy, this mechanism was discarded, as being too closely associated with the Emperor’s reign. When Napoleon III, Bonaparte’s nephew, was elected president, he aimed to establish a direct dialogue between himself and the people. He employed plebiscites to consolidate his power and transform the political system. The left and liberals denounced these methods, attributing the reason for Louis Bonaparte’s successes to the backwardness of the French populace.

After the defeat at Sedan in 1870 and the fall of Napoleon III, the Third Republic was established. Its elites displayed an unequivocal aversion to referendums, and the constitution precluded their use; as a result, parliament held supreme authority. At the end of the 19th century, General Boulanger proved to be a threat to this regime, as the centrepiece of his program was the introduction of the referendum into the constitution. He argued that this approach works effectively in Switzerland and helps reduce polarisation. However, criticism from newspapers and elites was ferocious. Constantly under attack, Boulanger stated that he was being branded a dictator because he sought to replace the rule of a “selfish and corrupt” parliamentary class with the voice of the people.

On the left, the idea of a referendum has also resurfaced at this time. Socialist Jaurès called for its introduction, rejecting the idea that the people are uninformed about the issues they would be expected to decide upon. He emphasised that any increase of public engagement with national issues would constitute progress. However, the elites of the Third Republic did not share his belief.

Opponents of the referendum have repeatedly argued that big questions are simply too complicated for the general public. The very same logic was applied to the Brexit referendum. However, the limitations of this argument are rarely taken into account: studies show that British MPs struggle with basic maths problems and often don’t understand the concept of the “mean”.

Upon his return to power, Charles de Gaulle established the Fifth Republic, where the referendum became the primary tool for consulting the people on major issues. He also introduced the election of the president by direct universal suffrage, a move that united the entire political spectrum in opposition. One MP stated bluntly, “In all civilised countries, it is the parliament that represents the people … and since this is the case, France is here [in the parliament], not somewhere else.”

As Benhessa notes, this referendal nature of the Fifth Republic has been gradually altered after the General’s departure from power. Beginning in the 1970s, a transformation occurred that moved the system closer to the “government of judges,” a scenario de Gaulle had warned against. The influence of the European Court of Human Rights has been expanding, with Le Référendum impossible noting that the Court has issued over 1,000 judgments against France in the last 40 years, 70% of which were condemnatory. Even if the public is permitted to voice its opinion through a referendum, its choice must be validated by the Constitutional Court—whose authority has increased since the 1970s — and by the European judges. The people are allowed to decide all right, but only if the judges agree with their will.

The real test of strength came with the Maastricht Treaty in 1992, which established an economic and monetary union, paving the way for a common currency and even closer integration. Despite such significant changes, then-President François Mitterrand was against holding a referendum, arguing that if parliament could adopt the Treaty, there was no need to “complicate matters with a plebiscite.”

Contrary to expectations, opposition mobilised against Maastricht. Within the Gaullist camp, the leader of the resistance was Philippe Séguin, who denounced the anonymous power of the Brussels commissioners in one of the most famous speeches of the Fifth Republic. When the Danes rejected the treaty, Mitterrand yielded to pressure and agreed to a referendum.

The media and the political class, with the exception of the Gaullists and some Socialists, engaged in scaremongering. Le Monde insisted that a “no” victory would be as catastrophic as Hitler’s rise to power. Similarly, in the debates preceding Brexit, some journalists likened support for “Leave” to the error of appeasement.

In 2005, the EU was set to expand its authority, once again at the expense of the sovereignty of European states. French president, Jacques Chirac, didn’t want to consult the public, but rumours that Blair was planning to hold a referendum in the UK shifted the climate of opinion. The “no” camp was disorganised, with both the right and left unified in favour of “yes” supported by the mainstream media. However, the public disregarded the elite’s narrative.

A “no” victory came as a shock. Ahead of the vote, Jacques Delors, an ex-commissioner, stated that if the French reject the Constitution for Europe, there is a plan B in store. That plan B, as the book shows, turned out to be the Lisbon Treaty, actually a copy-paste of the 2005 draft. Valéry Giscard d’Estaing, the author of the 2005 text, confirmed that “the tools are the same, only their order in the tool box has been changed.” As Benhessa writes, society has been forced to swallow a pill that it had already once spat out, leading the elites to draw a conclusion: no more referendums.


In the UK, polls illuminate grievances neglected by the political class

Many French people have lost faith in the Fifth Republic, yet the instrument that de Gaulle endowed it with may restore their voice. The referendum, labelled a “dangerous procedure” by liberal Le Monde, represents the most democratic tool at France’s disposal. Benhessa pins his hopes on it when it comes to resolving a political crisis where citizens’ sovereignty is at stake.

In the UK, polls illuminate grievances neglected by the political class, such as over immigration or housing. Oddly, in a country that has audaciously restored direct democracy regarding an issue that seemed forever immune to public opinion, we find a scarcity of voices supporting new referendums.

However, referendums alone are insufficient. Brexit and its missed opportunities have taught us this lesson: without competent elites committed to reform, the voice of the people resembles a cry of despair.

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