Trans-national democratic innovation in the European Union:
Flirting with deliberative and plebiscitary design Europe @ LSE, October 2011 Early draft – quote with caution! Graham Smith
Professor of Politics
Centre for Citizenship, Globalization and Governance (C2G2)
University of Southampton, UK
email@example.com Public authorities at various levels of governance have over recent years experimented with, and on some occasions institutionalised, democratic innovations: institutions that have been specifically designed to increase and deepen citizen participation in the political decision making process (Smith 2009). This has often been part of an explicit strategy to respond to perceived democratic deficit. It is not a surprise then that the European Union has itself engaged in a degree of experimentation, given the extent to which commentators contend that this level of governance exhibits a democratic deficit par excellence (Culpepper and Fung 2007). But institutionalising democratic innovations is challenging in any polity; designing and embedding trans-national citizen participation is another matter entirely. After all, with the European Union we are talking of a highly-populous, multi-national and multi-lingual polity: over 500 million people, from 27 member states using 23 official European languages.
The aim of this paper is to analyse and account for the current trajectory of democratic innovation in the EU. While the EU has a long pedigree in engaging organised interests (sometimes as an explicit proxy for citizen participation1), there has been increased experimentation with new forms of citizen engagement within the last decade. The key event in explaining recent developments is the rejection of the proposed Treaty Establishing a Constitution for Europe in 2005 following popular negative votes in both France and the Netherlands. The ‘period of reflection’ that followed led to an explicit engagement on the part of European institutions with deliberative ideas which informed a series of trans-national democratic innovations. Creating opportunities for citizens of Europe to deliberate about collective concerns provided one potential answer to the democratic deficit. But there was a failure to embed, invest in, and learn lessons from these experimental trans-national deliberative designs. Instead, the decision at the Lisbon Intergovernmental Conference (ICG) to transfer directly many of the articles from the failed Constitution Treaty into the 2010 Treaty of the European Union established the legal basis for the European Citizens’ Initiative (ECI). With its implementation in April 2012, trans-national citizen engagement will arguably take a plebiscitary turn. The paper reflects on the implications for trans-national citizen participation in the European Union of this shift from deliberative to plebiscitary engagement
Flirting with deliberative design? Deliberative democratic theorists have developed a particular analysis of the democratic deficit in the EU (Bohman 2007; Eriksson 2009). For example, James Bohman argues that the legitimacy of the EU (as well as any other polity) rests on both popular and deliberative legitimacy: not only the ‘extent that the people have genuine opportunities to shape or assent’ to any reform, but also the ‘extent to which the deliberative process of citizens offering reasons to each other in mutual justification plays some role’ (Bohman 2007:139). Against these criteria, Bohman argues, significant reform processes, in particular the development of the proposed European Constitution, fail. The same is arguably true for more mundane European policy making.
And it was in response to the same political project – in this case the rejection of the proposed Constitution by France and the Netherlands – that a more deliberative perspective on strategies of citizen engagement began to emerge amongst European policy makers. This was made explicit in a number of policy documents, perhaps most vividly in the 2006 European Communications Policy White Paper which promotes the development of a European ‘public sphere’:
People feel remote from these decisions, the decision-making process and EU institutions. There is a sense of alienation from ‘Brussels’, which partly mirrors the disenchantment with politics in general. One reason for this is the inadequate development of a ‘European public sphere’ where the European debate can unfold. Despite exercising the right to elect members of the European Parliament, citizens often feel that they themselves have little opportunity to make their voices heard on European issues, and there is no obvious forum within which they can discuss these issues together. (CEC 2006: 4-5)
While parts of the White Paper were explicitly deliberative in tone, it is another thing to move from such rhetoric to actual institutional design across such a populous, geographically extensive, multi-national and multi-lingual polity.
With the adoption in 2005 by the European Commission of Plan D for Democracy, Dialogue and Debate (CEC 2005), later superseded by Debate Europe, the institutional challenge was to a certain degree answered. While around 75 percent of the projects funded under Plan D are best described as traditional information campaigns, others attempted to create opportunities for deliberative engagement on the part of EU citizens (Euréval et al 2009: 29). And democratic experimentation was not only happening under Plan D/Debate Europe: trans-national democratic innovations with a deliberative element were organised under different European programmes. In a relatively short space of time between 2005 and 2009, Mundo Yang (2012) documents 22 transnational democratic designs with a deliberative element,2 sponsored by a range of different programmes: Citizenship Programmes; Plan D/Debate Europe; eParticipation Preparatory Action Programme; 6th and 7th Framework Programmes for Research and Technological Development of the EU. To this list of designs, we can also add the Futurum online platform created to inform the constitutional process in 2001.
What can we learn from this fairly intense period of deliberative experimentation? How did the organisers of deliberative events/projects deal with the combined challenges of scale, linguistic and national diversity? What forms did trans-national citizenship take?
The first lesson from such experiments is that in practice many of the democratic innovations were organised primarily along national rather than trans-national lines. The challenges associated with scale and language proved difficult to overcome. For example Ideal-EU funded under the eParticipation programme in 2008 engaged French, Italian and Spanish young people (14-30 years) in debates around energy policy, but through national (and therefore linguistic) 21st Century Town Meeting-style events and online forums. Only at the end did national delegates come together to meet with the president of the Climate Change Commission of the European Parliament (Talpin and Monnoyer-Smith 2012). Similarly, the European Citizens’ Consultations 2009 organised under the Debate Europe programme, utilised 28 national websites (two for Belgium in Flemish and French) and 27 randomly-selected mini-publics to develop a series of recommendations across a range of policy issues (e.g. economy, employment, social policy, health and environment). Again, only at the end was a group of 150 volunteers from the national debates (all of whom had to speak English) brought together to review the overall recommendations and hand them over to EU policy-makers (Kies et al 2012). Evidence from the analysis of these two designs suggests that they achieved a degree of deliberative quality. However, the form of democratic citizenship they embody remains primarily national in character, reinforcing the European Commission’s own conceptualisation of the European public sphere as ‘building the European dimension into the national debate’ (CEC 2006: 5). Citizens considered European issues with fellow nationals rather than with citizens drawn from across different European nations. Arguably trans-national engagement and thus a trans-national form of European citizenship was realised to only a limited extent in such experiments.
However, amongst the deliberative experiments, there are a few examples that are explicitly trans-national in character: Futurum and two deliberative polls (Tomorrow’s Europe and Europolis) offer particularly interesting instances. Both designs aimed to promote trans-national and trans-lingual interaction between participants.
Futurum was established in 2001 to enable citizens to contribute to the debate on the European constitutional process, with explicit reference to the need to ‘bring the European Union closer to its citizens and reduce the perception of a democratic deficit’ (Futurum website quoted in Wright 2007). Futurum translated its basic webpages into 10 languages and citizens could post comments, respond to the posts of others and add new threads in any European language (for more detail, see Wodak and Wright 2006; Wright 2007). While English remained the predominant language on the forum, a significant minority of contributions and threads featured a range of languages (Wodak and Wright 2006: 262). These were not translated unless participants did so themselves (for example, using online translation software). While the design is impressive, there were at least two limitations to the realisation of inclusive trans-national deliberation: first the uneven digital divide across the EU;3 and second, those citizens who were multilingual or English-speaking were at some advantage in following and engaging in debates.4 This led to fairly uneven rates of participation across social groups (including across linguistic and national divides)
The deliberative polls, Tomorrow’s Europe and Europolis, were both organised in partnership with James Fishkin and colleagues: the first under Plan D in 2007; the second under the 7th Framework programme in 2009. They deviated from standard deliberative polling practice (simple random selection) through the use of quota sampling to ensure pre-determined levels of representation from across the member states of the EU. Both DPs relied on a barrage of translators to ensure that a participant who spoke any of the EU’s official languages could follow and contribute to the plenary sessions of the deliberative polls. For feasibility reasons, the smaller breakout sessions had to be organised in particular combinations of languages. The plenary session of the polls relied on the same translation technology as the European Parliament – and used the same space. No citizen able to communicate in one of the 23 official languages of the European Union was excluded on linguistic grounds. Both deliberative polls provide evidence that trans-national deliberation can lead to significant change in opinions across a range of European policy issues (Fishkin 2009; Isernia et al 2012).
A second lesson is that such designs are (perceived to be) expensive, particularly face-to-face innovations such as the deliberative polls that physically bring citizens together from across the EU and rely on costly translation which is necessary to ensure inclusive deliberation. Arguably the expense of organising face-to-face innovations is one explanatory factor for the apparent decline in funding in the last few years for such initiatives. Where the EU continues to experiment, it is online initiatives that are taking priority. In their discussion of Europolis for example, Pierangelo Isernia and his co-authors (2012) reflect on the expense of European deliberative polls and suggest that for a polity of the scale of the EU, online deliberative polling may be a cheaper and thus more acceptable alternative. But even with continuing experimentation with online forums, it is not at all clear that policy makers are particularly concerned with the deliberative quality of online forums: in his analysis of Your Voice in Europe, for example, Romain Badouard (2012) argues that the platform was established in part to lower the cost of impact analysis rather than any concern with achieving democratic deliberation. There appears to be a false economy at work: if inclusive and reasoned online deliberation – particularly trans-national and lingual deliberation – is to be enabled, it will require significant investment and creative design (Smith et al 2011).
A third lesson, which will be further reinforced if the move towards online engagement continues, is that very few (if any) of the designs provided meaningful opportunities for participants from across nations and language communities to craft recommendations together. The final event of ECC09 is one rare exception, but as we have already noted, the overall design was primarily nationally-organised and participants in the final trans-national session had to be English speakers. As for the explicitly trans-national democratic innovations, Futurum allowed participants to leave comments and respond to others; Tomorrow’s Europe and Europolis measured the opinions of individual participants with pre-prepared surveys. There were no expectations that citizens would work together to offer creative solutions to policy problems. There is thus a missing design: the institution that creates space for European trans-national citizenship in which randomly-selected participants from different nations and linguistic traditions craft recommendations together: a multi-lingual and trans-national version of the Citizens’ Assembly model that were established in British Columbia and Ontario to review electoral systems (Smith 2009: 72-110; Warren and Pearse 2008).
This relates explicitly to a fourth lesson from the deliberative experiments: there has been no noticeable impact of the designs on policy making either individually or collectively. This is arguably the most disappointing element of the period of deliberative experimentation – there was a failure to embed designs in the policy-making process. Many of the evaluations of these experiments point towards the empowering effect of engagement on participants, but then regret that the outputs of these designs failed to have any effect on the European decision making process. As Julien Talpin and Laurence Monnoyer-Smith (2012) suggest in their analysis of Ideal-EU, any empowerment through such innovations is likely to dissolve as citizens realise that their contributions are not considered valuable by decision-makers.
But why this failure? None of the innovations were designed to be given full control over decisions, but in each case those organising the initiative were under the impression that they would be integrated into the policy-making process within relevant European institutions. Part of the failure obviously rests with EU policy makers. When sponsoring these innovations, policy makers had failed to consider how to integrate their outputs. This meant that the results of citizen participation were typically overlooked.
But there are also some failures in design that might be laid at the door of organisers rather than European policy makers. For example, one of the reasons why participants in the Convention process were able to ignore much of the debate generated on Futurum was because it was ‘perceived to be a relatively anonymous, largely unrepresentative group’ and there were questions about ‘how to effectively and fairly summarise the debates’ (Wright 2007: 1172). The challenge of ‘unrepresentativeness’ indicates the important role that random or targeted forms of selection might play in increasing the perceived legitimacy of democratic innovations at the European level. The latter problem relating to outputs of debates was replicated across many of the designs: vague recommendations, value statements and/or aggregation of opinions too general to offer useful guidance for policy makers. The impressive trans-national deliberative polls are a perfect example of this problem. They provide policy makers with a series of results for the aggregated preferences of citizens against pre-defined survey questions, but no real sense of how those citizens would make hard choices of the type facing decision makers.
There is no clear evidence that any of the EU institutions receiving reports on the judgements and outputs of democratic innovations made any use of them – they are rarely if ever mentioned in later official justifications of related decisions. And what is abundantly clear is that there is no sense that officials have drawn together evidence from across the 23 experiments in order to learn lessons for future engagement strategies. Part of the explanation for this is because of the way in which the different innovations were funded from a variety of different European programmes – it provides another vivid example of the fragmentation and inertia of this complex institution that can undermine creativity and lesson-learning. The collective wisdom that could have been accrued from the different democratic innovations has been lost.
While the funding for these experiments provides evidence that there is (or at least was) some degree of interest in deliberative engagement, there was no clear plan for how these would link with ongoing decision-making processes, or will on the part of decision makers to attend to citizens’ perspectives. The fate of these deliberative innovations gives succour to the view that the discourse of participatory governance has run far ahead of considerations of how citizen engagement can be institutionalised in political decision making (Friedrich 2012).
Embracing plebiscitary design? In comparison to the relatively brief ‘flirtation’ with deliberative design where no innovation was given significant standing in the political process, the rapid institutionalisation of the European Citizens’ Initiative (ECI) represents a significant change of direction for trans-national citizen engagement. The ECI is likely to displace any lingering interest in deliberative design. The ECI will be launched officially in April 2012 and requires the European Commission to respond formally to proposals that have the support of 1 million citizens from across at least 7 member states. In the press release welcoming the speed of agreement between the Parliament and Council, Maroš Šefčovič, Vice-President for Inter-institutional Relations and Administration states:
The ECI will introduce a whole new form of participatory democracy to the EU. It is a major step forward in the democratic life of the Union. It's a concrete example of bringing Europe closer to its citizens. And it will foster a cross border debate about what we are doing in Brussels and thus contribute, we hope, to the development of a real European public space.5 Whereas the innovations we discussed in the first part of the paper are related very much to the deliberative turn in democratic thought and practice, the ECI is motivated by a different stream of thinking: direct or plebiscite democracy. The two approaches to democratic engagement are distinct, typically emphasising different democratic designs (Saward 2001; Smith 2009). The ECI can be seen as part of the broad movement in advanced industrial democracies towards institutions that offer more direct control to citizens (Scarrow 2001). But while it might bear a family resemblance to forms of direct legislation - and directly (but incorrectly) borrows the name of one design - it does not give citizens any final decision making powers. This is important because as we will discuss further below, the democratic legitimacy of direct legislation rests on the form of political equality embodied in the final ballot. In many ways it is closer (and would have been better named in a similar way) to the existing European Parliament Petition (EPP), although significantly the ECI is explicitly trans-national in its design, requiring the organising ‘citizens committee’ and the 1 million statements of support to come from at least one quarter of EU countries (7 out of 27).6 The period of deliberative experimentation can be understood as part of the reaction by European policy makers to the failed Constitution; paradoxically the ECI is actually the product of that failed process.7 Following effective lobbying by a small group of NGOs and two members of the Convention, the ECI was (somewhat surprisingly) included in a series of last minute amendments announced on the final day of the Convention (12 June 2003) by its president Valéry Giscard d’Estang. The ECI appears in the articles summarising ‘the principle of participatory democracy’ (Article I-46):
No less than one million citizens coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. A European law shall determine the provisions for the specific procedures and conditions required for such a citizens’ initiative.8 The ECI was not on the political agenda in the run-up to the Convention: there was certainly no broader public debate about the institutional design beyond the small number of NGOs promoting the initiative. And it was still not a matter of much public debate when it appeared again in Article 11 of the 2010 Treaty of the European Union (or Lisbon Treaty). In agreeing the Treaty, a decision was made under the Merkel presidency not to open up any issue from the aborted Constitution unless there was unanimity amongst Member States to do so – an incredibly high threshold was put in place in order not to undo what had been a complex set of trade-offs in the Convention. From that point on the institutionalisation of the ECI has been fairly rapid. Anticipating the Lisbon Treaty, the Commission adopted a Green Paper in 2009 and launched a public consultation. The final structure of Regulation 211/2011 was then agreed, again relatively quickly, between Council and Parliament, coming into force in February 2011. The first initiatives can be launched officially from April 2012. As such, a last minute entry into the proposed Constitution which received almost no public scrutiny now take its place as arguably the main vehicle for citizen engagement in European affairs.
There is no doubt that at the level of principle the ECI is motivated by the idea of trans-national citizenship and engagement. After all, 1 million signatures will be required from at least 7 member states. But there are good reasons to believe that the actual practice of the ECI will undermine this ideal and will realise only a relatively weak form of citizen participation.9 First, although the ECI will likely have significant impact on agenda-setting in the EU, it will be shaped primarily by organised interests rather than citizens qua citizens. A successful ECI will require organisers to mobilise 1 million signatures in the 12 month period following registration. A minimum figure of signatures has been put in place to protect the Commission – and perhaps also citizens – from being overwhelmed with proposals.10 But experience from California, where a similar rate of signatures is required for securing a proposal on an initiative ballot,11 provides evidence that this is almost impossible to achieve without professional signature drives. And such drives are highly expensive: in excess of $1 million to qualify an initiative in California (Lupia and Matsusaka 2004: 471). The ‘substantial political resources (money and manpower)’ required to meet signature thresholds means that ‘organised interests clearly have an advantage over most individuals’ (Magleby 1984: 58). There is no ‘mythical citizen’ (Cronin 1999: 207) who initiates petitions and it will be the best organised CSOs, political parties and business interests who will be able to make most effective use of the ECI. Citizen participation will be channelled through the agendas of already powerful organised interests.
Second, the designation of ‘initiative’ is misguided and somewhat disingenuous. The term is typically reserved for a mechanism that substantially alters the balance of power between political elites and citizens and whose legitimacy rests on political equality – all citizens have the equal right to vote (even if in practice there tends to be a differentiation in participation – see Smith 2009: 113-119). While often confused with referendums, an initiative in its common usage enables citizens to put a legislative measure (statutory initiative) or a constitutional amendment (constitutional initiative) to a binding vote if they are able to submit a petition with the required number of signatures from fellow citizens. It is arguably this combination of the equal right to petition followed by the equal decision making power of citizens on which the democratic legitimacy of such direct legislation rests (Saward 1998). The process that the EU has institutionalised is simply the petition element of the initiative. Agenda-setting power (which we have already argued tends to be monopolised by organised interests) is not complemented with decision making powers. The Commission will be under pressure to respond positively to validated initiatives and is likely to act on occasion to forestall public pressure and the registering of a proposal. However, the absence of the popular vote arguably means that the ECI will not have the same disciplinary effect on decision-makers as citizens’ initiatives which include the popular vote.
Finally, it is worth considering the nature of the public debates that the ECI will generate. Well-supported initiatives are likely to gain significant media exposure and lead to a degree of public debate. But this debate will not be structured in the same way as campaigns in direct legislation. While deliberative democrats are often critical of the democratic qualities of referendum and initiative campaigns (Chambers 2001), at least there is usually some degree of public education (e.g. through voter information pamphlets) and funding of pro and con camps to ensure a degree of fairness in the public debate. The nature of the debate around ECI petitions will give Commission officials some sense of the support for a proposal in that 1 million citizens must sign a petition; but limited sense of the strength of popular opposition (unless a counter-proposal is mobilised) or broader public opinion following a public debate. Particularly for those of a deliberative hue, the democratic legitimacy of the ECI is in some doubt.
Concluding thoughts The ECI represents a significant departure from many of the democratic innovations that the EU sponsored immediately after the Constitutional crisis. The period of trans-national deliberative experimentation appears to have been forgotten or at best neglected – there has been a failure to learn and embed lessons from the impressive variety of designs. Instead the ECI, influenced by direct democratic rather than deliberative designs and the outcome of an effective lobbying campaign in the Convention on the Future of Europe, has been institutionalised into the EU architecture. If there are any additional democratic developments it is likely to be in relation to online engagement where there are distinct challenges in realising inclusive deliberation.
In many ways, this is a lost opportunity. Not only because deliberative institutions in their own right are worth further experimentation, but also because introducing a deliberative reform to the ECI might alleviate some of its apparent democratic limitations. While direct and deliberative models of democracy are often viewed as competing and antagonistic, their principles and practices can be mutually supportive (Saward 2001). If we are right to be concerned that successful initiatives are likely to represent the interests of already-organised interests and that it will be difficult for the Commission and others to judge the standing of any particular proposition amongst the broader public, an additional deliberative institution might increase the ECI’s democratic legitimacy. Quite simply, any proposition that achieved the requisite ECI thresholds would immediately lead to the launch of a European deliberative forum constituted by a representative sample of European citizens to consider the issue in question. This could be in the form of a trans-national deliberative poll which would generate considered preferences from participants; or more substantially a Citizens’ Assembly of the type institutionalised in British Columbia and then Ontario. While a particular organised interest might be able to mobilise 1 million signatures in support of a proposition, a trans-national mini-public of this sort would then offer the Commission – and the wider European public – a considered judgement on the issue representing a diversity of perspectives from across the European citizenry. A successful proposition that withstood the scrutiny of such a trans-national deliberative forum would then have significant – and legitimate - normative force. The deliberative experiments that were organised in the aftermath of the aborted Constitution indicate that organising trans-national deliberative engagement, while a challenge, is possible.
As it stands, the form of the ECI that will be formally institutionalised in April 2012 offers one particular approach to realising trans-national citizenship. For deliberative democrats, it lacks the legitimacy that is necessary to respond to the current democratic malaise. Even though the ECI is likely to have more profound impact on European decision making than any of the previous deliberative experiments, there are some similarities between these two forms of democratic design that indicate that European political elites are running scared of embedding meaningful citizen engagement at the European level. It is not at all clear that the ECI represents a new avenue for citizens qua citizens rather than organised interests which already have other avenues of influence. Additionally, the political will of decision makers to shift the balance of power when it comes to decision making remains lacking. ‘Citizens’ initiative’ is a rather inappropriate designation of this new European institution (Damjanovic et al 2010). Despite the rhetoric, European citizens remain a great distance away from power.
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1 For example, the Citizens’ Agora, established in 2007 by the European Parliament is promoted as ‘a unique tool, in both structure and breadth, for discussing with citizens issues on Parliament’s agenda’. However, in practice it ‘represents a link between the European Parliament and European civil society’ (emphasis added). See http://www.europarl.europa.eu/parliament/public/staticDisplay.do?id=70&language=EN
2 Yang defines ‘transnational’ as designs that engage citizens from three or more EU member states.
3 The internet penetration across Europe (not just the EU) stands at 58.3 % in 2011. But this figure masks great differences across member states: amongst EU member states this ranges from Sweden with a penetration of 92.4% to Cyprus at 38.7 % http://www.internetworldstats.com/stats4.htm
4 The dominant language on the Internet is English, but only 32 percent of European citizens whose mother tongue is not English believe themselves to be proficient enough to take part in a conversation in that language (Cederman and Kraus 2005: 303).
6 The right to petition the European Parliament was enshrined in the Treaty of the Functioning of the EU (TFEU). In comparison to the EPP which can be proposed by a single signatory, the ECI requires registration with the European Commission before the collection of signatures; at least 1 million signatures; national verification (and thus shifting of costs!) of signatures; public hearing at the European Parliament following verification; and the adoption of a communication by the European Commission.
7 For an extended explanation of the process of adoption of the ECI, see Smith 2012.
8 The European Convention, Draft Treaty establishing a Constitution for Europe (July 2003) www.european-convention.eu.int/docs/Treaty/cv00850.en03.pdf
9 I owe this distinction between the principle and practice of trans-national citizenship to a comment from Jo Shaw.
10 The European Parliament Petition Committee (PETI) apparently receives over 1000 petitions per year to consider.
11 In California, the number of signatures required for a successful petition is 5% of the turnout for the previous state election (around 400,000 signatures) collected within 150 days.