By Sir Michael Butler. Source: Global Thinking Issue 08, Autumn 2002
Read this longer version of Sir Butler's article outlining why constitutional reform will only make the EU more unpopular.
In speeches about the EU, at seminars and conferences, in discussions about the European Parliament and even in publications put out by the Foreign Policy Centre
much is said about a "democratic deficit" in the EU. We are told that this must be corrected by recommendations from the Convention on the Future of Europe now going on and decisions taken at the 2004 IGC. The analysis is suspect.
Anti-Europeans wish people to believe that the EU is undemocratic. If it were, the idea of leaving it or at the least of "renegotiating" its Treaties (codeword for destroying it or leaving it) might gain ground. At the other end of the spectrum, the supporters of the concept of a centralised Europe, a United States of Europe, want more "democracy", for example electing the President of the Commission, as a step down the road towards their aim. This is an unholy alliance, but too many pro-European pragmatists have become its fellow travellers. To deny that there is a democratic deficit is no longer politically correct.
There is a deficit, but it is a deficit of consent not of democracy. Too many people are moving into support for the Le Pens of this world. Huge numbers of people say they do not understand what the EU is or what it is for. There is a rising tide of nationalism.
The EU is not like a country with a democratically elected government. If it were, democratic theory and practice would demand that the people be able to change their government by voting it out at periodic elections. The fact that the European Parliament (EP) is called a Parliament has compounded the confusion because it is normal to feel that a Parliament ought to be able to change the government. But the EP can sack the European Commission, but it cannot sack the government of the EU because it is the Council (the member states) and not the Commission which takes the decisions. The EU is a unique international organisation with some pronounced supranational features. The right question to ask is "Is existing democratic accountability sufficient and appropriate to its intermediate constitutional position?"
The European Commission is an independent organisation, not just a civil service. It has important independent powers in the field of competition and regulating state aids. The Commissioners are usually politicians, often distinguished politicians, by origin who have sworn not to take instructions from 'their' national government. It has the role of making sure that the member states carry out their Treaty obligations and can take them to the European Court if they do not. It has, by the letter of the law, the exclusive right to propose draft legislation, though in practise it works with governments who wish to see specific legislation proposed. It has a crucial role in implementing the decisions of the Council and in representing the EU internationally. But it is the Council which is the decision-making body.
Representatives of the fifteen member states form the Council. Different Ministers attend, depending on the subject to be dealt with. But, increasingly in recent years, it is the European Council composed of the Heads of Government which has played the leading role. All the member states are required by treaty to be democracies and so the representatives of their countries in the Council are subject to the democratic control exercised by their national Parliaments. Some national Parliaments do the job more thoroughly than others, but all the Ministers who speak in the Council pay great attention to their political constituencies at home. If the EU is not to become a superstate, which none of the Ministers want, national Parliaments must perforce be the main element of democratic control over decisions taken by Ministers in the Council. The commitment by Prime Ministers to directing the EU ensures that national Parliaments hear about the main things which are going on.
The Eurosceptics, like Margaret Thatcher, argue that majority voting in the Council destroys accountability to their Parliaments of those Ministers who are outvoted. Yet in 1985 she agreed that, in order to remove national barriers to free trade, majority voting was essential if the Single Market was to be created. My own experience in the Council was that Ministers much preferred not to outvote each other. Decisions were normally taken by consensus, except that votes were sometimes taken at the request of an isolated Minister - so that he could tell his own Parliament he had had no choice. In practice, however, the usual consequence of the existence of a provision for majority voting was to stimulate the civil servants and Ministers in any minority country to think up ways in which a compromise could be devised that served the interests of all the members. Because of this Britain has been voted down a negligible number of times. A theoretical diminution of accountability is the price paid for getting things done.
But Ministerial accountability to Parliament is not the only element of democratic control in the EU. The directly elected EP contributes another important element. It was responsible for the removal of the Santer Commission. Still more important in practice, but little known, is the contribution it makes to improving draft legislation by means of its power of co-decision with the Council on subjects which are dealt with by majority voting. If the representatives of the Council and the Parliament cannot reach agreement in the co-decision procedure, draft legislation cannot be adopted. To this should be added all the many ways in which the Commission, and increasingly Ministers also, seek to consult with members of the EP. If the EU was moving in the direction of a superstate, the EP's degree of control might seem inadequate. But since it is not, the EP's role seems appropriate and is much greater than is generally recognised.
There is on the other hand a deficit of consent. Politicians in many countries find that it is good politics to attack the EU in general and the Commission in particular. There is a low turn-out in European elections and pervasive ignorance about what the EU does. (It is not only in European elections that there is a low turn-out. The same is true of many national elections. Wherever the electorate cannot see that their vote will change things of direct interest to them, they are reluctant to make the effort to go to the polls.) But what is the remedy? Surely not more constitutional tinkering! Can anyone seriously maintain that indirect, or even direct, election of the President of the Commission would change the voter's behaviour? It would create a constitutional muddle while provoking nothing more than a public yawn. While the Convention debates such abstruse constitutional questions, nothing will be done about the deficit of consent - which is even more serious in the case of the EU than nationally because the growth of anti-EU parties might in the end undo the progress since 1945 and lead to the triumph of nationalism in Europe. We don't need to emulate the first half of the 20th century in the first half of the 21st.
People, even well educated readers of the serious newspapers, are constantly asking what the EU is for. They genuinely feel they don't know. There are many answers which they can be given. Here are some of them. It is for ensuring that the zone of peace created by its foundation is enlarged to cover the whole of the European continent. It is for continuing actively to build prosperity by completing and maintaining the Single Market and by action by member governments to match each other's best practise in economic management; it is for contributing to economic prosperity and stability through the Single Currency; for dealing with all those problems of the environment that cannot be tackled on a purely national basis; for helping to deal with crime, drugs, illegal immigration and other cross-border evils through police and judicial co-operation and the proposed common arrest warrant; and for innumerable small acts of co-operation, too many to list. It is also for common policies on agriculture and fisheries, policies which still need much reform.
In the world outside the EU, its purposes are to ensure that European economic interests are protected, especially in the World Trade Organisation, and in bilateral dealings with other countries, including the United States; to serve the long-term interests of its members by common action to keep the peace in places like the Balkans; to create a small rapid reaction force which could undertake peacekeeping or humanitarian interventions when NATO cannot because the Americans are unwilling; and to take common positions on foreign policy issues where the EU collectively can exert influence for good which its individual members cannot.
Tackling the massive consent deficit is never going to be easy and will take time as well as concerted effort. To consent you need to understand why the EU is important to all of us. It is not elitist to suggest that the citizen who only reads the Sun or the Daily Mirror may not understand the Commission's competition policy. I tried out a draft of this paper on a reader of the Times who abandoned it after suggesting a few changes to make the second paragraph easier to understand. But ordinary citizens are no longer prepared automatically to trust their government to get things right. The subjects dealt with by the EU are complicated and hard to explain. Who but an expert can follow the disputes with the USA about trade policy? Who can explain with clarity that free trade is good and that all the regulations in the nearly 300 single market directives are needed in order to have genuine free trade. The British, who suffer from the excess zeal of British bureaucrats when they turn EU directives into UK law, are rightly suspicious. Even among those who would like objectively to enlighten the people there are bound to be differences of opinion which is confusing for those who would like to learn. But the effort must be made to persuade the vast majority of citizens that the EU is a force for good.
In addition to the problems we have now, there are going to be real difficulties about how to make the EU institutions work with ten or more new members from Eastern and Southern Europe. But we do not yet know what the reality of a Union of 27 will be like and what needs to be changed to make it work. One thing is certain, however, that the right way is not for the heads of our governments to sit together quarrelling for several days in order to produce a voting system that only a powerful computer will be able to understand, as they did at Nice.
Here are five suggestions for our leaders.
1. They should agree that they need urgently to address the deficit of consent if nationalism is not to continue to gain ground. The first thing to do might be to put the best brains available to them to work to draft an agreed text of 1000 simple words saying what the EU is and does and why it is a "good thing".
2. They should send a message to the Convention on the Future of Europe to the effect that the argument about where the EU is going in the long run must be suspended for the time being, while the urgent problems of substance are settled, not least the remaining chapters in the accession negotiations.
3. They should agree that it will be premature to make any important constitutional changes at an Intergovernmental Conference (IGC) in 2004. There should be a five year period of living with the new members before an IGC in 2009.
4. Meanwhile a one-day 2004 IGC will agree one short clause permitting the European Council to make any constitutional changes that experience with enlargement suggests are necessary, by unanimous agreement and without ratification by member states, but on a provisional basis and subject to confirmation in 2009.
5. Finally, a small group should be created in the Secretariat of the Council to explain in simple language to all those prepared to listen or write about it the decisions the Council takes each week.
This would allow the endless constitutional wrangling to be put on ice for five years while the new members settle in. It would frustrate the evil designs of the unholy alliance of Eurosceptics and Federalists by allowing for time to analyse whether there is really a democratic deficit and time for a new-found unity of European Ministers to work together to make the EU comprehensible to the citizens.