I-CONnect Symposium: The Independence Vote in Catalonia–Sovereignty Referendums: Constitutionalism in Crisis?

And so here we are again: a major constitutional issue in Europe reaches its culmination in a dramatic moment of direct democracy which usurps established constitutional understandings with the raw manifestation of what purports to be constituent power. The Crimea status referendum in 2014, the independence referendum in Scotland of the same year, the United Kingdom’s ‘Brexit’ referendum in 2016 and now the Catalan referendum on independence, each in its own way confronting established understandings of where constitutional supremacy rests. And this challenge is present not only in the fundamental nature of the issue at stake but also in the process itself – bringing ‘the people’ to the fore in a way that deeply unsettles the medium through which constitutional practice is typically construed and conducted: institutional representation.

Much has been written about the internal constitutional issues at stake in the Catalan referendum, assessing these from different perspectives (e.g. here, here and here). I do not intend to comment on the constitutionality or legitimacy of the process or to focus upon the Catalan situation specifically. Instead I take the vote on 1 October as simply the latest example of how the referendum continues to proliferate as a constitutional decision-making mechanism and how poorly the referendum, as a now critically important arena of constitutional practice, is both articulated by and accommodated within the established parameters of mainstream constitutional theory. The Catalan referendum as part of the recent tendency towards ad hoc exercises in direct democracy presents constitutional theorists with two significant challenges: one relating to monist certainties about the nature of the demos, the other concerning the conceptualisations of constitutional sovereignty and complacent assumptions about the default and de facto supremacy of constitutional form over popular democracy.

The proliferation of the referendum is now emerging as perhaps the most challenging constitutional development of our time.

Taking Europe alone as a case study, since 1990 the referendum has been used to bring about the break-up of states, the formation of new ones and the birth and fundamental restructuring of constitutions. The European Union is itself a fascinating setting within which referendums have vexed integrationist assumptions. It is too simplistic to say that the referendum has reversed the trajectory towards ‘ever closer union’, but it has clearly been a major irritant. The rejectionism of Denmark and Ireland in relation to EU treaties is a familiar story, and of course the popular rejection in those countries of treaties from Maastricht to Lisbon can in one sense be treated as anomalous: the protestation of small and not very influential states. But it should be borne in mind that these were the only EU member states to entrench the referendum as a regular part of the constitutional amendment process. When other states have turned on occasion to the referendum to ratify EU treaty-making the result can be much more problematic for the European project. The rejection of the draft Constitutional Treaty by the direct acts of Dutch and French voters in 2005 and of the ‘bail out’ by Greek voters in 2015 perhaps makes the Brexit vote less of a shock than it was widely taken to be. And there are signs that states now intend to use the referendum more frequently in relation to the EU. Of the first 15 countries to join the Communities only Ireland and Denmark held referendums to ratify the decision. Of the 10 accession countries in 2004 only Cyprus did not. The most recent state to join, Croatia, also acceded following the direct endorsement of its citizens. The referendum provides a vehicle for a vernacular demos to speak. This is not in itself a threat to the EU, but if the goal of further integration relies, as it surely must, upon a weakening of national ties and the construction of some sense of pan-European identity, then the potential of referendums to entrench national demotic ties has perhaps been underestimated as a major glitch in the system, providing a medium for the consolidation rather than the dissipation of national pluralism.

At sub-state level the referendum was normalised in the late 1970s as a means by which devolved government could not only be created but also (and crucially) legitimised by way of direct popular endorsement. A referendum was held in Catalonia in 1979 on the question of ratifying the proposed Statute of Autonomy while referendums on devolution proposals in the Scotland and Wales in the same year (which were rejected) established precedents for subsequent votes in 1997. It is no surprise that the referendum, already normalised within the state’s constitutional practice, has remained the go-to solution for nationalists in both Spain and the UK as their demands have grown from autonomy to independent statehood. And it is also no surprise that the referendum is invoked as a trump card capable of circumventing constitutional restraints.

The referendum has a deeply resonant rhetorical strength: the direct generation of a sovereignty claim by the people themselves has a totemic potency which an assertion of independence made by a sub-state parliament does not. This is recognised in the assertion by Catalan nationalists of a ‘right to decide’: a right that was deemed to be vested in the people directly. It is the very directness of this democratic form that gives it its force, as though the claim to the existence of a plurality of constituent powers within a plurinational state (itself counter-intuitive to monist conceptions of the generators of sovereignty) can only be legitimised in the face of sceptical and hostile opposition by the direct manifestation of those peoples’ express imprimatur. The salience of the referendum as the conduit by which such a claim might be made was earlier recognised by the Supreme Court of Canada in the Quebec Secession Reference: ‘The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession’ (para 88), and ‘The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.’ (para 92).

The crucial lesson of the Quebec case of 1998 and subsequently in the Scottish experience of 2014 is that, through the referendum, the asserted constituent power of a sub-state people takes on constitutional and not merely political significance. The Supreme Court in Ottawa recognised this, as did the UK Government in the Edinburgh Agreement by which it granted unequivocal legal authority to Scottish nationalists to stage their referendum. In the end both states understood three vital principles: that constitutional supremacy is founded upon the legitimacy that stems from consent, in a deeply pluralised polity the sources of that consent are themselves plural and that no more clear expression of a lack of consent to membership of the state is to be found than that declared by a people mobilised as a sovereign public. Canada and the UK came slowly to accept the dramatic capacity of the referendum to instantiate and give voice to the popular force that underpins the very legitimacy of the multinational state, but in doing so they may have saved their states from a painful loss. Whether this is a lesson that will or can be learned by the Spanish state, and perhaps in time also by the European Union, remains to be seen.