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Is the EU democratic?
31 Oct, 2018

Could do better – but basically yes

Few of our tweets attracted quite so much opposition from Leavers as a statement that the EU was democratic. London4Europe Committee member and former Home Office senior civil servant Michael Romberg works through the issues in more detail. A post on Tony Benn’s five questions to ask the powerful complements this article.

General Considerations

Assessing whether an entity is democratic is more problematic than it sounds. In some sense it must mean controlled by and accountable to its members. But there is much more to it than just votes and elections: rule of law, separation of powers, effective press, adherence to constitutional procedures and conventions. A book by Nick Hopkinson, London4Europe Vice-Chair, discusses the issue in depth.

The EU is not a single superstate directly accountable to its citizens but an organisation where sovereign states come together to pursue common interests. Moreover, it is effectively a hybrid organisation with both supranational and inter-governmental mechanisms, institutions and competences. That is reflected in its structures.

One of its legislative houses is the Council of Ministers where each member state is represented by a member of its government. The other is the European Parliament, directly elected by individual citizens. So, in its legislature, the EU reflects a desire to be both a democracy of member states and a democracy of individual citizens.

The EU operates under the rule of law. Its powers are not inherent, but derived from treaties granted by member states. Individuals as well as governments may enforce their EU rights through national and EU courts.

On the other hand, being a treaty body leads to some behaviour that could be seen as undemocratic. For example, the European Council (quarterly meetings of heads of government to set strategy) meets in private. That is undemocratic if you think of the European Council as like a legislature (which it is not), but normal if you think of it as like a cabinet (which it is not quite either) or as a locus for inter-state negotiation (which is one aspect of its rôle).

Throw the rascals out!

A basic issue is whether citizens can change their rulers. The answer is a messy mix of direct and member state democracy.

National electorates determine the government of their own country according to national procedures. Hence they determine their country’s representatives on the Councils. A French voter has no say about who Slovakia sends. (But then a voter in London does not have a say in Yorkshire’s choice of MP.)

The President of the Commission is chosen by the European Council reflecting the results of the Parliamentary election. Commissioners are nominated by member states’ elected governments. The Parliament has to approve the Commission. The Parliament can dismiss the Commission.

So, if you don’t like your representative on the Councils you can change them by changing the Government at home. If you wish the President of the new Commission to be of a particular party grouping you can vote for that party grouping in the European Parliament elections; if successful, the European Council should select that party’s Spitzenkandidat. If you do not like the present Commission you can also ask your MEP to vote them out. If you don’t like your MEP you can vote for someone else.

What do Leavers mean by sovereignty

Nation states pool sovereignty whenever they join an international organisation. NATO more or less obliges us to go to war if a fellow member is attacked. The WTO has a dispute settlement mechanism whose rulings we must follow. The EU is no different, though the extent of the pooling of sovereignty is bigger.

One can reasonably ask whether any particular sharing of sovereignty is worth it or not. But the idea of sovereignty as it is sometimes presented, as the ability to act in isolation, is not realistic.

Some Leavers argue that they accept that but their concern is to preserve the sovereignty of the UK Parliament. The UK Parliament is sovereign in the sense that normally no other UK entity can strike down its laws. By contrast, in some countries a constitutional court can annul the laws of the Parliament.

However, the sovereignty of Parliament does not work as a separate argument in connexion with Brexit. That is because the UK’s domestic constitutional arrangements are nested within the extent of the UK state’s sovereignty. Where the UK has pooled sovereignty (to the EU, to NATO, to the WTO), then it does not matter whether within the UK it is the Parliament or a constitutional court that is supreme, because the question does not arise.

So the only relevant question is whether or not the benefits of pooling sovereignty in the EU outweigh the costs.

The EU and referenda

Some leavers bring forward the idea that as “the EU rejects referenda held by member states when they get the answer wrong” it must therefore be undemocratic.

The EU does not hold referenda or ask/ require member states to do so. Where member states hold referenda under their own national constitutions the answers can only be binding on those states. Where member states have held second referenda on a particular treaty, the question has been different because the treaty has been changed or qualified. If a member state rejects a treaty – no matter what process it has followed – the treaty cannot go ahead.

The EU censures Hungary and Poland

Some argue that the censure motion that the European Parliament has brought against Hungary and the infringement notice that the European Commission served on Poland show that the EU is undemocratic.

These are powers under treaty to which all member states signed up.

The EU is a club. It has rules. If members break the rules, then they may be censured or sanctioned. In the case of Hungary and Poland, what is at issue is the rule of law. That is a core value of the EU, of its member states. Protecting and promoting the rule of law is part of what it means to be democratic. So it is important to ensure that.

There is room for debate on whether Hungary and Poland are in breach of common values and if so what the best way forward is. But there should be no doubt that the EU is entitled to act collectively as the treaties provide to promote its core values.

No-one knows the names of their MEPs

Turnout is low in European elections (2014: 35%) and few know the names of their MEPs (London MEPs here), or the UK-nominated Commissioner (Julian King). So claims about EU “democracy” may be held to rely on the ignorance or passivity of the electorate.

It is a matter of disappointment that turnout is low and that many voters seem to vote in the European elections as a protest against national government rather than in order to have an effective European Parliament and to influence the choice of President of the Commission.

The EU provides the opportunity for democratic participation. If people choose not to take it that is ultimately a matter for the individual.

Could do better

There is much that could be done better. For example Britons have an unusually low sense of being European. If people felt more European they would know more about the EU and take part more in EU elections. But identity is not something that the EU can provide or impose. It helps to make a European identity available. Whether people choose it is down to them.

One way to make the EU more democratic would be to hold direct popular elections for the President of the Commission. But that would run into objections from those who wish to emphasise the idea of a Europe of nation states.

A large part of the problem in the UK is a lack of British Parliamentary control over the UK Government’s actions in the EU. Some member states have more Parliamentary oversight. But that is a matter for the UK, not the EU.

Is the UK democratic?

One should not judge the EU by higher standards than the UK.

In some ways the UK is democratic: regular free elections, the rule of law, personal freedom.

In some ways not.

The Head of State is hereditary. The House of Lords is a mix of hereditary peers, appointed peers and bishops. In practice, to a great extent the government controls Parliament. Turn-out in local government elections is low and local authorities’ powers are limited. First past the post means that Parliament is not a representative assembly. The government is chosen by a minority of electors. The joint total share of the vote of the 2010 coalition parties exceeded 50%, though neither campaigned on the basis of joining a coalition. The last time before that a UK government had won more than half the popular vote was 1931.

And for the crucial question can we throw the rascals out?, the answer is that a few hundred thousand swing voters in marginal seats can, but the rest of us cannot (I live in the 31st safest seat – you can look yours up here). Most seats are safe (analysis from 2009). In 2017 only 70 seats changed hands, in 2010 111 seats. A calculation in 2009 showed that almost a third of seats had not changed hands since 1945, almost half not since 1970.

Conclusion

Much about the EU is good. A Parliament directly elected by proportional representation, Councils where each member state has a vote. Rule of law. Engagement could be higher. But not everyone wants “more Europe”.

Any look at comparative constitutions throws up many more questions about the UK than about the EU.

 

 

 

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