The Dutch parliament did a curious thing this week. Four years after a law was passed to allow advisory referendums, the government now decided enough referendums had been held to prove that it was a flawed instrument and should be withdrawn. This was curious, because only one referendum has taken place, though another is being held in March on the same time day as the local elections. What was more curious was that a party set up 50 years ago to promote democratic renewal, D66, now had the task of persuading Parliament that public votes did not fit into the traditions of Dutch democracy. It all left a rather bitter taste in the mouth.
Public participation in the democratic process is relatively limited in the Netherlands, at least at national level. In general elections, voters choose a party to represent them in the Lower House of Parliament rather than individual candidates (though it is possible to promote lower-ranked candidates on the party list), while the Senate is indirectly elected via the provincial assemblies. Governments are formed in secretive negotiations between prospective coalition partners that can go on for months, during which the dominant image in news bulletins is a reporter standing in front of a closed wooden door.
The referendum law passed in 2014 was designed to answer public demand for a greater say in the lawmaking process, but in practice it was a blunt instrument whose main purpose was to appease populist parties. It was a corrective measure that could only be invoked once a law had been passed, giving voters the power to order Parliament to redo its homework. To trigger a referendum campaigners had to collect 300,000 signatures within a six-week period – once an initial 10,000 had signed a petition. And finally, it was an advisory vote which required the government to take the legislation back to Parliament but did not compel either body to make changes.
Though the aim was to empower the electorate, all voters were really being asked was whether they wanted to stick two fingers up to the government by rejecting a newly minted law that hadn’t been tested in the outside world. Because the process was initiated by public petitions, it was an open door to activist groups seeking to disrupt the ruling elite. And so it proved: the only referendum to be held so far was on the Netherlands’ ratification of the EU’s accession treaty on Ukraine, a law that few voters had strong views about beforehand. The campaign’s organisers admitted on the eve of the vote that they were more concerned about stirring up discontent against Brussels than the terms under which Ukraine might one day join the trading block. The slick, vociferous “no” campaign was helped by the refusal of cabinet ministers to turn out for the yes side, in part because the ruling Liberal (VVD) party was opposed to referendums in principle.
The resultant no vote, by a margin of 61% on a turnout of 32% – just above the threshold of 30% – left the government in an impossible position. Removing its signature from an international treaty would seriously harm the Netherlands’ relations with its EU partners, but any other outcome would be seized on as evidence that the government was ignoring the democratic will of the people. It took months of intense head-scratching for Mark Rutte to break the deadlock by appending a series of largely symbolic riders to the treaty.
In short, almost everything about the advisory referendum was wrong. The motivation for introducing it – to blunt populist claims that the political establishment was out of touch – backfired. The process was a gift to groups looking to engineer a political stunt, and the government dug its own grave by absenting itself from the ensuing debate. Perhaps the most curious aspect of the whole affair was the sight of nationalist politicians agitating for the ‘will of the majority’, as espoused by a simple majority of 50%+1, to be viewed as absolute and binding. It would be hard to conceive of anything more alien to the Dutch system, which is founded on consent and compromise between minority groups.
The new coalition’s plan to abolish referendums was met with predictable outrage by the likes of Geert Wilders and Thierry Baudet, who are fervent supporters of democracy when carried out at a safe distance by approved practitioners, but markedly less keen when somebody attempts it in their own party groups. (Baudet revealed the depth of his commitment to free speech during a recent dispute with D66 leader Alexander Pechtold, when he blocked Pechtold on Twitter.) Yet repealing the law because of one flawed first attempt is premature and incoherent. Next month a second referendum will be held on an issue that directly affects everyone’s rights and freedoms: the so-called ‘sleepwet’, or intelligence and security services law, which gives security agencies wide new powers to tap phone and internet traffic. And there is the sense of inevitability that a referendum will be called on whether or not to scrap referendums, despite the government’s attempts to put a roadblock in the draft legislation.
While the current referendum law may not comply with Dutch political practice, it shouldn’t be beyond the wit of man to come up with one that does. If, as has been argued, the Dutch are unaccustomed to direct democracy, that seems as good a reason as any to promote the habit. Instead of holding ad hoc referendums every time someone manages to get a petition together, why not make it an annual event, as the Swiss do? And rather than a corrective measure that enables high-profile campaign groups to annexe ‘the will of the people’, would it not be better to identify laws that have failed or passed their sell-by date, subject them to a public consultation which can consider all shades of opinion, not just ‘yes’ and ‘no’, and produce a draft law for Parliament to vote on? That would surely be a more constructive – and much more Dutch – way to involve the people in democracy.