Physician, heal thyself: Britain, democracy and the EU

The European Union is always slated as undemocratic (or anti-democratic). And its democratic credentials aren’t perfect: far from it. But the vast majority of EU legislation is passed by a directly elected Parliament and a Council representing 28 EU governments; the Commission President in 2014 was chosen on the back of the Parliament’s election results; and every Member State can appoint its own Commissioner. Further, if we have a problem with how democratic our relationship with the EU is or isn’t, shouldn’t we think about what we can do about it, rather than just moaning about Brussels?

You might think that improvements would all require Treaty change or unanimous consent from governments. But precisely because the EU actually isn’t an ultra-centralist state, there is actually quite a lot the UK could do on its own to make its MEPs and its government more accountable in Brussels.

European Parliament

The UK has 72 MEPs in the European Parliament: more than any other country except Germany and France. The British media loves to portray the Parliament as toothless and useless, but it actually has power and uses it. In 1999, it forced the resignation of the whole European Commission; in 2004-05, it radically watered down the Services Directive; in 2010, it rejected the SWIFT accord with the US until data protection changes were made. In 2014, it succeeded in ensuring that the leading candidate put forward in the European elections for Commission President got the job.

So the Parliament isn’t just a cypher. It’s not perfect: leaving the famous ‘single seat‘ issue aside, it’s hard to argue that most voters pick their MEPs on European issues. We don’t have a ‘European electorate’ voting on the issues the Parliament can affect, which inevitably affects its legitimacy. It’s probably also true that, especially with longer-serving MEPs, many tend towards a much more integrationist or federalist position than their voters at home (and, indeed, that of their national parties). The UK’s position in the European Parliament also suffers from the behaviour of many of its political parties.

The UK and its parties could and should do more, though, to both fix this and to re-engage with the Parliament. First, its political parties need to do more with the seats they’ve got in Brussels. In particular, one of David Cameron’s most stupid mistakes was to take his MEPs out of the main centre-right grouping in the Parliament (the EPP-ED at the time) and create a smaller, more right-wing and less influential group instead. Cameron said this needed to be done because the EPP was far more federalist than the British Conservatives, which indeed it is, but the Tories could already take a separate line on those issues, and the Parliament doesn’t get to decide on what powers the EU should have anyway. The result is that the UK has no direct influence on what the single largest bloc of MEPs does.

The fact that the UK now uses PR to elect its MEPs is a good thing and means that most voters have an MEP from a party they voted for. We have, however, managed to choose one of the worst possible forms of PR, meaning voters have no way to choose a particular candidate – so there’s no reward for constituency work, or raising issues voters care about in Brussels. If we don’t want to move towards the single transferable vote, we could at least have an open list system, so people can choose particular MEPs.

Finally, if we’re worried about MEPs ‘going native’, we might ask whether it’s really a good thing to have MEPs who can potentially spend 20 years in post (especially under a list system). I normally oppose term limits: re-election (or not) helps accountability. But if we’re worried about the gap between MEPs and their voters, and we know the public don’t tend to vote on European issues, then we might think about whether making sure they don’t spend too long in the Parliament might keep them more in touch with their constituents. I think this could be done within EU law – and even if we don’t want to put it in statute, political parties could try it out themselves, perhaps banning any candidate who has served in the last two terms from being selected again.

Council of Ministers

The Council is made up of ministers from each EU government. Like everyone else, the UK’s government is represented in all decisions which include the UK. Legislative sessions are held in public, though of course they very rarely hit the headlines. Of course, plenty of negotiating isn’t done in public – but that’s the nature of any deal-making anywhere, from the UN to the Good Friday Agreement.

Britain usually gets a compromise it’ll vote for – the share has fallen a bit in recent years, due partly to the relative lack of interest the UK Government has shown in building alliances since 2010, but the UK is still on the ‘winning side’ the vast majority of the time. In fact, governments agree unanimously most of the time – and the more a government cares, the less willing others are to override it. It’s true that in order to get what you want in the EU, you need friends and allies: it’s also true that Cameron’s Government has been notably inept on this front until very recently.

The most obvious solution is for the Government to re-engage, and to do it properly – not just in a crisis. The EU renegotiation shows that Cameron can do shuttle diplomacy: but it’s not good enough to do it at the last minute for one short-term objective. Blair’s government played its hand far better – promoting enlargement, generally taking much greater care to cultivate new EU members, working closely with France on security and defence and building stronger relations with Germany too. You might even argue it was too successful: by 2004-05, the French public and commentariat were fretting about l’Europe libérale or l’Europe anglo-saxone, with dramatic consequences.

If British governments need to play the game better, so do British parliamentarians. The House of Lords’ European Scrutiny Committee gets lots of credit for providing learned reports – but in terms of actual power, our MPs exercise relatively little control over their ministers’ actions in Brussels. That isn’t the EU’s fault: DenmarkFinland and others have EU Committees which can mandate their representatives, setting out negotiating remits and key priorities and involving Parliament in the decisions. We can debate how far to take it, but why can’t we do something similar? We have statements after meetings of the European Council: why can’t we have a ‘State of the EU’ debate every year, where the Government sets out its priorities at EU level – not permanently obsessing about where powers lie, but talking about what to do with them? If Eurosceptics feel power is moving away from Westminster, they need to make it better at watching what’s done in its name.

European Commission

The Commission, home of the famous ‘unelected bureaucrats’, probably takes more flak than any other institution. It’s worth just pointing out that governments nominate a Commissioner each: Jonathan Hill, the Commissioner with responsibility for financial services, was ours this time round. Further, the European Parliament actually managed a major coup in 2014, linking the choice of Commission President to the election results to the Parliament. The British parties failed to engage with the whole process, but Jean-Claude Juncker’s appointment is more closely linked to (and, in fact, dependent on) an election result than any previous one.

Given that the President of the Commission is a major role, and since direct election clearly isn’t on the cards, British parties should engage more with the process of choosing Commission candidates. Last time, the Conservatives’ self-imposed isolation meant they had no role at all in the choice of a candidate; Labour scrabbled to try and find any alternative to Martin Schulz, without success. (Taking the process more seriously is important for all EU governments and national parties, not just the British: apart from anything else, more engagement might produce less uninspiring candidates.)

In the meantime, why can’t we do more to open up our choice of Commissioner to scrutiny? Could British MPs hold public hearings for candidates for the UK post? Could the House of Commons nominate or elect the British candidate? Again, the UK Government acts in this area with very little input from parliamentarians: and again, the issue is less to do with Brussels and more to do with MPs keeping their own ministers on a tighter leash.

Court of Justice

Finally, the European Court of Justice is often attacked by anti-Europeans. First, the principle: EU law needs a final court to arbitrate on its meaning. It is fundamental to the single market that, once we agree on rules, they apply throughout that market. Most cases aren’t referred to the ECJ, but EU-wide interpretation of the rules must be available if we don’t want the single market to become ever more nominal as different countries read the rules differently (and as one of the more conscientious rule-followers in the EU, we don’t). You can argue about its decisions, as with any court: but the principle remains.

The much-attacked primacy of EU law is part of the same principle. If you want rules to operate throughout the EU, they can’t be overruled by all conflicting national legislation: that way lies a self-destructing single market. In the UK, the primacy of EU law operates through the European Communities Act 1972, so the principle of parliamentary sovereignty remains intact: the courts disapply UK legislation where it conflicts with EU law, but by virtue of UK statute. Further, the primacy of EU law doesn’t mean the EU can legislate in all areas: it applies to EU law, which must be passed in areas where the EU actually has competence.

Ultimately, the role of the ECJ needs to be better understood. But if we want to talk about a more robust dialogue between UK courts and the ECJ, that may well be possible, perhaps through UK courts including a provisional opinion on cases referred to the ECJ more frequently, in addition to giving reasons for the reference. In a different (though often conflated) area, we’re already seeing a more robust dialogue between the UK Supreme Court and the European Court of Human Rights. On further appeal, the Strasbourg court has often revised its view in line with our domestic courts.

Physician, heal thyself

The EU is and probably always will be, as long as it lasts, a mix of the supranational and the intergovernmental: directly-elected MEPs, EU courts and the Commission will rub along against governments in the Council of Ministers and the European Council. That means we have to consider democracy in two ways: yes, we need to question how democratic the EU institutions themselves are in themselves, but we also need to do much more to hold our own Government to account for what it does in our name.

There are, in fact, plenty of things we can do in the UK to make our relationship with the EU more democratic. The EU’s opponents cannot have it both ways: they talk about closed rooms and secret negotiations, but deals between sovereign governments always involve negotiation. It’s because the EU isn’t a superstate that we get this: intergovernmentalism requires wheeling, dealing and fudge. And if that’s your problem, you can look at the more ‘federal’ bits of the EU as an alternative, or you can do more to keep tabs on what your own government is doing in negotiations, or you can do a bit of both.

What you can’t do is just rail against the whole thing, with no alternative but disengagement. Any relationship with any other country will pose problems of transparency to a greater or lesser extent. It’s not just the EU: what about NATO, or the G8, or the WTO? In many ways, in or out of the EU, sovereignty is the right to a seat at the table: shouldn’t we be asking our Government more about what it does when it sits in the chair?

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