Radboud University Nijmegen
For more than thirty years, Dutch politicians have been struggling with the question of whether the constitutional system of representative government in a parliamentary democracy should be strengthened by means of referendums.
In the last general revision of the Dutch Constitution in 1983, constitutional reforms aimed at increasing the influence of voters were not included. The Constitution traditionally provides that parliament adopts laws together with the government (Article 81). The introduction of binding referendums on legislation could therefore only take place on the basis of a constitutional revision. Since 1983, the legislature has unsuccessfully attempted to amend the constitution on this point several times. In 1999, during the second reading of the constitutional amendment procedure, the reform bill intended to introduce the corrective (binding) legislative referendum into the Constitution failed in the Dutch Senate. The proposal was only one vote short of the required two-thirds majority. A new attempt to introduce such a referendum failed in the Dutch Lower House in 2004. A new proposal to revise the Constitution is currently undergoing the second reading for the third time. Yet, the outlook is - once again - not favourable.
Since a binding legislative referendum is still not constitutionally possible, the Dutch legislature has taken various initiatives in recent decades to hold advisory referendums. Here, too, the results were not very encouraging. In 2002, a Temporary Referendum Act was drawn up on an experimental basis, but was repealed three years later. In 2005, on the basis of an ad hoc Act of Parliament, a consultative referendum was held on the EU Treaty establishing a Constitution for Europe. To the dismay of the established Dutch political parties, a large majority of the voters surprisingly voted against the ratification of this treaty. Most parties considered the result of the referendum to be binding. As is well known, the Treaty did not enter into force following an equally negative result of the referendum in France.
In 2015, the Advisory Referendum Act was enacted, whereby Acts of Parliament could be subjected to an advisory (non-binding) referendum. This law opened up the possibility for citizens, supported by 300,000 signatures, to initiate an advisory referendum on a law passed by the parliament that had not yet entered into force. The compulsory attendance threshold for this referendum was 30% of the voters. From the outset, there was a lack of clarity about the scope of an advisory referendum. Some political parties considered the outcome of the electoral process to be binding, while others did not wish to commit themselves to the results in advance. The first application of the Advisory Referendum Act in 2016 concerned the Act approving the EU Association Treaty with the Ukraine. Once again, the Dutch voters turned against their government and the government majority in Parliament which supported this treaty. Dutch voters used this referendum to vote against the treaty with a substantial majority. Nevertheless, government and parliament proceeded in ratifying the treaty. This first unfortunate experience with the Advisory Referendum Act led to a discussion on the question of whether certain parts of this law should be amended. But this discussion was cut short by the new coalition government under Mark Rutte which came into power after the 2017 elections, and decided to repeal the Advisory Referendum Act altogether.
However, this repeal took quite some work. In order to prevent citizens from initiating a referendum on this Referendum Repeal Act, the legislative proposal stipulated that a referendum on this Repeal Act was not possible. Moreover, the law would enter into force retroactively, in order to prevent the procedure for a referendum based on the Advisory Referendum Act, which was still in force, from being triggered after the adoption of the Referendum Repeal Act in parliament. The manner in which the government handled this situation showed a significant lack of political courage, and criticism of this legislative proposal was immense. But the government coalition held out and the Referendum Repeal Act was recently adopted in Parliament. This brought to an end yet another chapter in this Dutch 'constitutional soap opera' around the referendum. We are now awaiting the next debate on the corrective (binding) legislative referendum later this year. The government, probably startled by the fierce opposition during the debates on the Referendum Repeal Act, expressed its willingness to consider new proposals for a corrective (binding) referendum. Amending the constitution to introduce referendums seems like a never-ending story at times in the Netherlands.
In any case, the conclusion may be that advisory referendums are neither feasible nor desirable in the Netherlands. The most important objection to the advisory referendum is that it gives voters a false appearance of influence that depends on whether or not the parties intend to follow up on the voters’ decision. A corrective (binding) legislative referendum, on the other hand, could, in my opinion, be a valuable addition to representative democracy. In the Dutch electoral system of proportional representation, the voters do not tend to make a majority decision in elections. After elections, the political parties enter into negotiations to form a coalition government in parliament that does not necessarily include the input of the electorate. In such a system, there is much to be said in favour of giving the electorate the opportunity in the interim, by way of addition or correction to representative democracy, to make a binding statement on certain Acts of parliament. The question is when the political parties in the Netherlands will finally be ready for such a constitutional renewal, which has been common practice in many countries for years. Unfortunately, many Dutch politicians currently have a negative perception of referendums, as they are often seen - and not entirely unjustifiably - as an instrument wielded by populists. This implies that it will probably take some time before the referendum in the Netherlands might receive sufficient support in parliament. Yet the problem does not lie with Dutch citizens, as polls have shown that a large majority has been in favour of referendums for many years. And that should give politicians food for thought...
Paul Bovend'Eert is professor of Constitutional Law at Radboud University Nijmegen, The Netherlands.