Prof. Dr. Melanie Sully

Direct Democracy/Personalities, Parliamentarism

The Österreichisches Jahrbuch für Politik 2013 is edited by Andreas Khol et al and looks at the formation of the new coalition government in Austria following the parliamentary elections as well as the Merkel phenomenon in Germany. View table of contents

 

Prof Dr MELANIE SULLY

Der direkte Weg zur Demokratie (here the English abridged version from the German published in Österreichisches Jahrbuch für Politik 2013, Vienna eds Andreas Khol et al)

Direct democracy was on and off the agenda in Austria in 2013. A flawed package came in for pointed criticism in a consultation process from eg the Federal Chancellery, Office of the Federal President and the Constitutional Court etc. Questions revolved around the mechanics of more direct democracy such as what topics should be excluded (death penalty, taxes, EU related questions, pensions),  the role of the constitutional court, federal election officials and so on.

In part the calls for more direct democracy were to meet increasing frustration with politics and tiredness with political elites. Experience in other countries was quoted in the consultations to make the case for or against more direct democracy.

But whilst direct democracy could play an important role, it needs to be complemented by quality improvement in the legislative process as it stands to ensure better more understandable laws are passed which make sense and involve citizens. Initiatives to reform parliament have often revolved around reducing the numbers of lawmakers but have yet to grapple with better quality governance in the political system. This problem and loss of voter confidence confronts other legislatures in the modern world. Representative democracy, parliaments and political parties all need renewing themselves to meet the challenges of the twenty first century political consumer age. 

The twenty first century threatens to become the age of political cherry pickers. Classical representative democracy is an important step in the democratic process which continues, needing an upgrade to be attractive to voters. The speed of the 24/7/365 online age and the constant search for the new, poses a monumental challenge to traditional politics and those systems and parties failing to respond face irretrievable decline and possibly extinction.

Membership in political parties is on the decline as too is turnout in elections not to mention trust in the political system. In Britain there are more members in the Royal Society for the Protection of Birds than in all the other parties put together. Never high, membership in a political party has slumped to below one percent of the electorate. In Latvia and Poland the level of membership is even below one percent.[1] France and Italy as well as Nordic countries have also seen a large exodus of members from political parties. In Austria where membership is still comparatively high the trend is downwards reflecting the limited patronage capabilities available to the two main parties.

Turn-out at elections is a cause for concern with trends downwards. At the UK election of 2010 the turn out rate was comparatively lower for the young according to the British Election Study. In European Parliament elections the turnout in six EU countries has fallen below 30%.[2] The same picture can be seen in Austria as noted by Professor Heinrich Neisser who also commented on the shortcomings of the reformed preferential votes system.[3] One reason for disengagement in countries like Austria is the feeling that nothing much changes following elections. Whilst different parties may be in office, although sometimes not even this occurs, there is rarely a power change. The same groups remain and referenda are very much in the control of elites who seldom venture to use the instrument and many urge renewal through more plebiscites to allow for citizen expression. There is in addition criticism of the election system and despite some reform the personality is subordinated to the party lists. A concentration of power in the hands of perceived failing elites such as the two main parties is also seen as hindering back innovation and reform.

A majority in countries such as Canada, US, Germany, France, Spain, Belgium, Italy are of the opinion that the government is run by “a few big interests looking out for themselves” according to a Transparency International survey of OECD countries.[4] Political parties were seen to be the most corrupt institution followed by the police, judiciary, parliament and public officials.

“in short it is the actors that are supposed to be running countries and upholding the rule of law that are seen as the most corrupt, judged to be abusing their positions of power and acting in their own interests rather than for the citizens they are there to represent and serve”.The Hansard Society in London regular reports on the public’s attitude to politics and has found that over the years knowledge shows a downward spiral and just 42% profess to be interested in politics. A majority of the public feel that government is “too complicated” to understand and that political participation is not much fun, besides which they have too little time for politics. Voters are in favour of more transparency so that politics “would be easier to follow”. About 40% are not politically active but confirm that they would become involved on the right issue. A recent Ipsos Mori Poll found that 60% public want to be involved in decisions shaping public services but reality of getting involved often show a lower figure.

Yet this is not the age of an apathetic generation and political black hole. Rather it signals a more sophisticated, mature element in an increasingly discerning and critical society. Single issue politics can mobilise and even inspire far more than broad political parties which have their roots and structures in the nineteenth century. As one expert on direct democracy wrote, people want to assemble their own music downloads in accordance to personal taste rather than buy a ready-made CD or record.[5]

Despite an overall disengagement with politics in the UK there has recently nevertheless been an improvement in the public perception of parliament as an institution holding government to account.[6] This is attributed in part to parliamentary reform regarding elections of committee members and an increased role for the backbenchers which has been supported by the Speaker Bercow. Topical issues seen as relevant by voters have a greater chance of being aired in parliament (eg media reform, banking reform, war and peace, the EU).[7] Such reforms were motivated by a need to win back confidence following financial and other scandals. In addition in many legislatures there are far more opportunities for a dialogue via online consultations than ever before and more information provided accessible to a wide section of the population.

In some parliaments voting too often can be a foregone conclusion giving the feeling that big decisions are taken behind closed doors. In a parliamentary hearing one constitutional expert remarked that in the UK there is “coalition government but not coalition parliament” and reforms have enabled a more lively setting for real debates across party lines. In addition the government regularly suffers defeats in the second chamber, the House of Lords, setting back the Coalition’s programme and forcing a rethink. But such reforms have initiated a sea change in expectations for public engagement. In addition to the classic separation of three powers, executive, legislature and judiciary, a fourth arm has made its appearance on the scene – that mysterious indefinable entity, the “people”. “They are no longer the ‘passive governed’, but should be participants in their governance. Parliament is the appropriate constitutional forum for them to engage in this activity, and that requires a truly autonomous and accountable Parliament. In other words, a Parliament for the People, not a Parliament for its Members or for the Government”.[8]

Citizen Engagement

Online and social media based politics can mobilise and engage the population as shown by “38 Degrees” in the UK, activist and people powered, which can campaign on “progressive issues” to collect mass signatures in lightning speed.

In order to fuse old and new the UK government introduced electronic petitioning. Petitioning is nothing new and stretches back to the Middle Ages in Britain and contributed even to reform laws on the extension of the suffrage. Debates on petitions started to occupy so much time on the parliamentary timetable the rules were changed in the nineteenth century which cut time allocated. Interest declined and by the 1970s the petitions committee was wound up. Tony Blair revived a modern form of petitioning via the homepage of Downing St and one issue against road pricing got almost two million signatures and the government dropped the scheme. But as Blair said, it was always clear to the government that the scheme was unpopular but thanks to petitioning it was clear who and where was against it. Political parties too can use the collection of data and e mail addresses to better target sceptics and floaters at elections.

The 2010 Conservative election manifesto stated “People have been shut out of Westminster politics for too long. Having a single vote every four or five years is not good enough – we need to give people real control over how they are governed”.

Within the first week of the new e-petitions scheme launched by the Cabinet of Cameron, one secured the minimum of signatures which is eligible for a debate in the House of Commons[9]. Whilst calls for the return of the death penalty attracted widespread support, a petition opposing its return was more popular. Another petition calling for rioters in inner cities to be deprived of social state benefits was debated and more recently one calling for a stop to “mass immigration of Bulgarians and Romanians” in 2014. The government gives a response online to the petitions even if there is no change of policy.

This innovation allowed for greater public participation and a chance to air topics. But critics say though there is no concrete result, little offline involvement of the citizen, little empowerment and perhaps more importantly no greater appreciation or understanding of how parliament works. Also expectations were raised that the petitions could change the law anyway based on a misunderstanding of the scheme. Many e petitions were driven by the media, or campaigning organisations and little was done to improve the image of politics[10].

Public engagement in policy-making[11] is another effort to involve citizens before the government has taken a decision so that empowerment is enhanced. Ultimate responsibility rests with Ministers and senior civil servants but citizens should shape the decision-making process.

To date the following weak spots have been identified:

-       Policy drawn up on narrow inputs

-       Not challenged before announced

-       Policy development process not transparent

-       Not developed together with those who implement it or affected

Citizen engagement allows for greater consultation on draft laws but runs the danger of being hi jacked by strong groups. Experience also shows that people take part if they perceive a personal gain or loss and not to improve the democratic process. Expectations of outcome have to be kept real to avoid greater disillusionment with politics.

In British Columbia a Citizens’ Assembly took place 2003-4 consisting of a random selection of ordinary voters to look at alternatives to the electoral system. This model was a radical experiment in that it excluded the elites altogether which normally influence such moves for more engagement[12]. This micro form of citizen involvement tried to avoid the pitfalls of being dominated by professional politicians or interest groups with vested interests. Originally it was an idea by the government but then the field was free for the participants to debate free from party machines or elites with which much of the perceived dissatisfaction was related. The Assembly could motivate its members and attendance was good; they were paid a per diem allowance and expenses and the participants had the feeling that they were really being empowered and proud to take part. They learnt to begin with about comparative case studies of election systems and conducted public hearings. Some critics say that the Assembly in turn also then became somewhat detached from ordinary citizens in the process and tended to evolve its own groups with separate interests. Moreover the lack of input by professional politicians ended up with a package which was difficult to implement in practice. Nevertheless the BC model has been positively appraised and aroused interest in Australia, Iceland and the Netherlands.

Referendum – that is the question

Referenda are frequently seen as the classic instrument of direct democracy for involving citizens. The motives can often be for other reasons eg intra-party differences such as the Labour party and the referendum in the UK on European Common Market of 1975, constitutional obligations, avoidance of loss of support to other parties (promised referendum on exiting EU by UK Conservatives), pressure resulting from an  election platform (Scottish independence referendum).

A government initiated referendum with the aim of seeking confirmation from the country can occasionally backfire as recently with the referendum in Ireland in 2013 on abolishing the Senate. In a surprise vote the Irish people voted against government plans to do away with the second chamber to save money and break with the colonial past, preferring it to continue with the job of holding the government to account[13].

In the UK so-called constitutional conventions have grown up eg on the devolved administrations such as Scotland and Wales established after referenda. Experts believe that any reversal of this would need by convention but not constitution a vote by the people.[14] Referenda may creep into coalition bargaining as a chip with the promise in 2010 by the Conservatives to the Liberal Democrats to support a nation-wide referendum on the voting system. Alternatively they can break a deadlock in a coalition and get the logs rolling again.[15] Referenda are increasingly used by sub state elites as a device for independent statehood or for enhanced autonomy as in Scotland and Quebec[16]. It is also used by national elites in multi level governance as the UK coalition offers greater tax raising powers for the Welsh Assembly subject to a referendum.

Arguments have been employed against referenda eg Nick Clegg on reforming the House of Lords on the grounds of cost of a referenda and that the point was included in both the manifestos of the coalition parties and therefore superfluous. This was countered by an argument that such a reform was a major constitutional milestone greater than maybe Scottish devolution and the people should have a say. In addition if the point was in all main party manifestos arguably voters never had a choice at the general election and a referendum is justifiable. Referenda have thrown up a number of questions for the representative democratic model including: questions to be posed, formation of question, role of parliament, binding or not, design of referendum, arbiters. For reasons of space only some aspects can be touched on here.

Questions to be put: to what extent do referenda open the door to the populists or can the people be trusted to make the “right” decision. In 2001 a vote on the death penalty in Ireland went against and other examples from Switzerland can be cited to show maturity on sensitive issues. Yet the political culture and circumstances are important and no guarantees exist on a result which would be at odds with international and European obligations.

The UK referenda on an in/out EU compatible with EU law which now provides for this possibility. Electoral Commission currently reviewing possible questions. Usually preferring yes or no now they are not so sure. Experts see pitfalls when knowledge of the subject here EU is low as the Electoral Commission confirmed. In some countries taxation, finance and pensions cannot be the subject of referenda eg Denmark but for example there a change in the voting age has to be put to the people.

Framing the question to be put can influence the outcome of any referendum. The question on Scottish independence was tested by the Election Commission of the UK and usually this process takes about ten weeks.

The Quebec referendum of 1995 posed a long winded question formulated by the government and aroused some controversy. It referred to concepts such as sovereignty and a new economic and political partnership with little communication of what was involved. Afterwards the Canadian Supreme Court ruled on the clarity question.[17] Clarity does not mean just posing a simple question but also outlining clearly the consequences of each option. In some cases the process itself can generate a positive effect. The Northern Ireland referendum of 1998 took place in a bitterly polarised society.[18] Both elites and citizens engaged in an unlikely dialogue during the deliberations. By way of sounding out public opinion in surveys the elites could test how far they could go in making sensitive compromises which could have been seen as betrayal. The role of civil society in this process was noted by many experts as positive in contributing to the constructive climate. The referendum in a sense was just as much part of the question posed on power sharing and shaped political opinion. Thus whilst elites may retain control of posing the question and the timing, the involvement of citizens in the process can redress the lopsided nature of the exercise.

The Australian referendum of 1999 on replacing the Queen was phrased in the question with an alternative proposed as a head of state to be appointed by a two thirds parliamentary majority.[19] Voters who may have been opposed to the Queen but against indirect elections would have been put in a difficult position. The Venice Commission has published guidelines on good practice for referendums (2009) and refer to a number of controversial points which have occurred in different countries.

Accordingly “the question must be clear, it must not be misleading; it must not suggest an answer; electors must be informed of the effects of the referendum; voters must be able to answer the questions asked solely by yes, no or a blank vote”.

The organisation of the referendum must be in the hands of an impartial body. Since referendums very often cut across party lines, simple political party composition of such a body is arguably insufficient. A balance is therefore necessary between pro and contra in the referendum dispute. The Electoral Commission in the UK was established by law in 2000 and comments on the question, monitors campaign spending and reports on the administration to ensure fairness and transparency. For this purpose the Commission issued guidelines for framing a question so that user testing research can be carried out (preferred time ten weeks). The question should be easy to understand and unambiguous, avoid misleading voters and avoid encouraging a foregone response. It should use short sentences and avoid jargon and technical terms. On the question to be put the Venice commission states that a referendum must not be contrary to international law or to the council of Europes statutory principles eg democracy, human rights and the rule of law.

 

The citizen demanded referendum exists in few countries eg New Zealand where it has suffered a mixed fate. In this instance it is the House of Commons that looks at the question submitted by a citizen or group and then there is a period of twelve months to collect signatures - ten percent of registered electors. The referendum is non-binding and has indeed been ignored by lawmakers eg reduction in the number of MPs and calls for tougher sentences for violent crimes. The uncertainty of the outcome and the lengthy process as well as what is considered relatively high percentage of signatures has led to some waning of enthusiasm for the system.

The Venice commission has drawn up guidelines and best practices and has tackled the problem of the role of parliament during a referendum. According to the commission, when a text is put to the vote at the request of a body other than parliament it must be able to give a non-binding opinion on the text put to the vote. “in the case of popular initiatives it may be entitled to put forward a counter proposal to the proposed text which will be put to the vote at the same time. A deadline must be set for Parliament to give its opinion and if not met then the text will be put to the popular vote without the opinion of parliament. Parliaments opinion is all the more necessary when the referendum is initiated by the government. Electors must be informed says the Venice commission of the position of parliament.

On quorums the Venice commission opposed a minimum percentage turnout since it implies those abstaining are opposed to the question under review. Encouraging abstentions is not healthy for democracy says the Commission. Similarly a minimum percentage to be reached was opposed on the grounds that it creates potentially a difficult political situation if it fails to meet the target.

Whilst the idea behind more direct democracy in countries like Austria is to hit the refresh button and reengage the people, the workings in practice have to be clearly thought out. Does such reform open the flood gate to a wave of initiatives if not now then at some time in the future? If so then in this dialectical process not more democracy but the antithesis results arguably even with more negative consequences that the democratic atrophy reforms sought to overcome.

The states of the USA have initiative provisions eg California. The experience with such initiatives inflated over time has come in for criticism and resulted often in contradictory measures eg anti-tax (Proposition 13 late 1970s). A plethora of ballot measures put citizens in direct competition with their own representatives.  This resulted in Californians fire elected officials in mid-term; referendums rejecting acts and voters writing their own rules. Unsystematic chaos was the upshot of extreme direct democracy and a balanced budget, difficult enough at the best of times became unattainable. The instrument became captured by lobbyists pushing laws complex obscure and eventually undermining representative democracy not complementing it. The state was described as ungovernable and dysfunctional and even a failed state. One commentator reflected that the experiment in direct democracy had gone wrong but if reformed it could still become a model.[20]

The dilemma of direct democracy is that it gives citizens the instrument to by pass the legislators. They will be at odds with them since logically if not the measure will already be on the statute book. Who should have the last word and if it is parliament then a la longue citizens will ask themselves what the point of the exercise is and remain disillusioned. Just as representative democracy relies on a culture of moderation, responsibility and a set of consensual unwritten as well as written rules so does indirect democracy presume a modicum of disciplined and responsible action. Extremism in either case harms the democratic model for all. Direct democracy has to remain a safety valve and not become the entire engine so initiatives must state where extra money comes from and be subject to amendment from the legislature[21].

Parliament in any case can always reverse a decision although in some cases such as EU withdrawal this would be a messy business.

The problem by giving parliamentarians the last word is that it is likely they will defend against the will of the people their own vested self-interests. In New Zealand the conclusion has been reached by some that the citizens initiated referendum is a flop.

Representative democracy has therefore to be complemented by individual choices and parties should modernise their own structures to retain any appeal. This includes more transparency on candidate and leadership selection and internal ballots on issues of importance.

 


[1] Ingrid van Biezen/Peter Maier/Thomas Poguntke, Going, going….gone?, “The Decline of Party Membership in Contemporary Europe”, EJPR, 51/, 2012.

[2] Slovenia, Czech Republic, Romania, Poland, Lithuania and Slovakia.

[3] Demokratiebefund, October 2013, http://www.mehrheitswahl.at/

[4] Global Corruption Barometer, Transparency International, 2013.

[5] See Matt Qvortrup, Direct Democracy: a comparative study of the theory and practice of government by the people, MUP, 2013, pp. 4ff.

[6] See Hansard Society, Audit of Political Engagement 10, London, 2013.

[7] See also evidence given to the Constitutional Reform Committee, House of Commons, HC 82-I, 2013.

[8] Barry Winetrobe in evidence submitted to the House of Commons, PCRC Committee, on the impact of the Wright reforms, March, 2013.

[10] See also Melanie Sully, „Kampagne oder Instrument: Dilemma direkter Demokratie“, Die Furche, 36/2012 and „What next for e-petitions?“, Hansard, London, 2012. E petitioning has also been introduced by other legislatures eg Scotland, Germany and Austria (elektronische Zustimmungsmöglichkeit auf dem Webportal des Parlaments). and Melanie Sully, “Direct Democracy in the UK: a constitutional experiment”, in Balthasar/Bußjäger/Sonntag eds., Direkte Demokratie im Diskurs, VNA Press, Vienna, 2013.

[11] House of Commons PASC, HC 75, June, 2013.

[12] See S. Tierney, Constitutional Referendums, OUP, 2012.

[13] See Jane Suiter, Seanad Referendum in Perspective”, Irish Politics Forum, 11.10. 2013.

[14] For more see S. Tierney, Constitutional Referendums, OUP, 2012.

[15] See Interview with Andreas Khol, Der Standard, 21.6. 2012 who mentioned that the instrument should not be used on a daily basis as in Switzerland but eg in cases where a Coalition makes little progress. Any referendum however should exclude eg constitutional laws, human rights, fiscal and tax policies.

[16] See Tierney, op cit

[17] B. Smith, The Quebec Referendums, House of Commons Library, 13/47, 2013.

[18] Tierney op cit p 250.

[19] Tierney, op. cit

[20] A. Kluth, „The People’s Will“, The Economist, 23.4. 2011.

[21] The Economist, “Lessons from California: the perils of extreme democracy”, 20.4. 2011. QVORTRUP

 

 


 

Further the Yearbook includes a joint chapter written by Dr Christoph KONRATH together with Dr Melanie SULLY on "Personalities, Parties and Parliamentarism".
This examines the Austrian parliamentary election of 2013 and its concentration on a few leading personalities which to an extent diverts from the importance of the parliamentary mandate. The emphasis on a few candidates in the otherwise classical Austrian Party system poses an interesting paradox. At the same time moves are underway to strengthen the personality element eg through electoral reform and improved preferential voting chances in order to recuperate some of the loss of confidence in politics generally. However this has met with modest success and skirted around the more fundamental need for effective parliamentary reform. The chapter makes use of comparative material from other legislatures to illustrate the need for a greater understanding of representation and responsibility and concludes with a call for an increase in the quality and professionalism of parliamentary work.