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Netherlands: Draft Law to End Advisory Referendum Law

(Dec. 29, 2017) Kajsa Ollongren, Minister of the Interior and Kingdom Relations of the Netherlands, stated on December 20, 2017, that she had submitted legislation to the Dutch Parliament on the repeal of the country’s law that provides for non-binding advisory referendums. (Dutch Cabinet Wants No Referendum on Law to End Referendums, MADISON.COM (Dec. 20, 2017).) The government wants to do away with the law without giving voters a chance to weigh in on the decision, arguing it to be “logical that a law that ends the possibility for an advisory referendum is not itself subject to the possibility of a referendum.” (Id.)

Thus far only one advisory referendum has been held in the Netherlands, an April 6, 2016 vote rejecting Dutch ratification of a European Union free trade agreement with Ukraine, a deal that the government ratified anyway “after securing assurances it would not lead to Ukrainian membership in the EU.” (Id.; Guillaume Van der Loo, The Dutch Referendum on the EU-Ukraine Association Agreement: Legal Options for Navigating a Tricky and Awkward Situation, CEPS COMMENTARY (2016).) A second referendum is scheduled for March 2018 on a controversial law to expand the authority of Dutch intelligence agencies to monitor electronic communications.  (Dutch Cabinet Wants No Referendum on Law to End Referendums, supra; Wendy Zeldin, Netherlands: Referendum to Be Held on Surveillance Law, GLOBAL LEGAL MONITOR (Nov. 17, 2017).)

Background on the Act

The Advisory Referendum Act has only been in force for about two and a half years, since July 1, 2015. (Wet van 30 september 2014, houdende regels inzake het raadgevend referendum (Wet raadgevend referendum) [Act of 30 September 2014, Containing Rules on the Advisory Referendum (Advisory Referendum Act)] (as last amended effective Apr. 1, 2017), OVERHEID.NL.) It was actually initiated in 2005 by three MPs from the Social Democrats (PvdA), Progressive Liberals (D66), and Greens (GroenLinks) parties, but remained ignored in parliament for years because at first there was no majority in favor of it. (Arjen Nijeboer, The Dutch Consultative Referendum Law: An Overview, MEER DEMOCRATIE (last visited Dec. 26, 2017).)  The draft Act was revived again in the beginning of 2013, approved by the Tweede Kamer (House of Representatives) on February 14, 2013, and then passed by the Eerste Kamer (Senate) on April 15, 2014. (Id.)

A referendum is defined under the Act as “an advisory corrective referendum” (id. art. 1), which may be held on laws or thetacit approval of treaties that apply within the Kingdom only to the Netherlands or part thereof” (id. art. 4). Under the Act, a referendum is held in cases where, after an initial request has been made from at least 10,000 voters, at least 300,000 voters make their wish known in a definitive request. (Id. art. 2.) The referendum result counts as an advisory ruling for rejection of the law or treaty if a majority expresses itself in a negative sense and the attendance at the referendum amounts to at least 30%of the total number of voters. (Id. art. 3.)

 According to the Act, referendums cannot be held on, among other matters:

    • laws on the monarchy;
    • laws on the royal house;
    • laws on the budget;
    • laws to change the Constitution and laws declaring that there is reason to consider a proposal to this effect;
    • laws that only serve to implement treaties or decisions of international organizations (including secondary European Union legislation); or
    • Kingdom laws (that also apply to the Dutch Caribbean islands, given that they have no referendum procedure), with the exception of Kingdom laws to approve treaties that only apply to the Netherlands or part thereof within the Kingdom. (Advisory Referendum Act, art. 5 (a-f); Arjen Nijeboer, supra.) 

The advisory referendums may be held, however, on such topics as “taxes, EU treaties, social security, economic policies, immigration, reorganization of municipal borders, traffic laws, etc.” (Nijeboer, supra.)

Popular initiatives (votes on proposals written by citizens) and referendums at the provincial or municipal level are not covered by the Act. “Provinces and municipalities are free to introduce any type of citizen-initiated consultative referendums through local charters, and a minority has already done so.” (Id.)

Reasons for Opposition to Advisory Referendums

In the aftermath of the parliamentary elections of March 15, 2017, it took months of coalition talks for four parties to form a new government, and part of the deal they reached in order for Prime Minister Mark Rutte to form a new government was the decision to do away with the Advisory Referendum Act. (Saskia Hollander, Dutch Direct Democracy: From Bad to Worse?, SWI (Oct. 17, 2017).)  The coalition parties had been in favor of the 2016 EU-Ukraine Association Agreement, but the government was put in a difficult position when the outcome of the advisory referendum on the agreement “led to eight months of uncertainty about the implications of the barely valid, yet advisory, no-vote.” (Id.) The situation also engendered debate on whether it was suitable to put a difficult matter like an international agreement to a popular vote. (Id.)

As one commentary noted, the result of that referendum was “probably the worst possible outcome” and “a major embarrassment for government,” especially because it held the Presidency of the EU. Moreover, “[i]f the turnout had been below 30% the Dutch government could have safely ignored the vote.  But with just over 30% voting, … the government [had] to consult with parliament about how to proceed.” (Fraser Cameron, Why We Should Ban Referenda on EU Policies, EURACTIV (Apr. 10, 2016).)

According to an expert on European referendum law, the Dutch Act has two exceptional features that pose the risk of creating a double incentive for non-participation. One feature is the referendum’s advisory nature; in the expert’s view, “it makes little sense to advise parliament on an issue after parliament has debated and voted upon this issue”; she also points out that no other countries in the EU have advisory citizen-initiated referendums.  (Hollander, supra.) Second, because of the 30% attendance quorum, while “citizens can trigger a referendum to advise the government to withdraw a legislative proposal,” the authorities only need to take the referendum under consideration when the 30% criterion is met, thereby inducing people to engage in strategic behavior whereby “people in favour of a law might abstain from voting in order to prevent a valid no-vote.” (Id.) A study showed, in fact, that over 10% of non-voters who were basically in favor of the EU-Ukraine Association Agreement, had “abstained strategically, in the hope that the quorum would not be met.” (Id.)