The Irish referendum vote against enlargement, the Danish rejection of the euro and Bitish euroscepticism all suggest that the EU fails the test of legitimacy. It can and should passby Chris Patten / July 20, 2001 / Leave a comment
Sovereignty is a notoriously slippery concept. In feudal times, the position was clear enough. Sovereignty rested with God. Later, God was good enough to delegate. Sovereignty resided with the king. But absolute monarchy never recovered from the blow that struck off Charles I’s head. Parliament became sovereign. And sovereignty was no longer an expression of the will of God, but the will of the people.
But what does it mean to say that parliament “is sovereign”? The concept of sovereignty is a difficult one because there is often confusion between sovereignty de jure-the supreme legal authority; and sovereignty de facto-the ability to induce people to take a certain course of action. The distinction between the two is illustrated by the members of the French Convention who on 2nd June 1793, in the exercise of their sovereign authority, ordered the arrest of the leaders of the Girondin party but only after their president had led them to the exit to escape the mob.
There has been a tendency in Britain to treat sovereignty as a thing. A birthright of every Briton-handed down through the generations like a sacred flame, indivisible and unalterable. Every question about how best to represent the national interest in Europe can be resolved by applying a simple test: does the proposal require Britain to surrender any more of her birthright? In this conception, the country is giving itself away, piece by piece: “drifting ever closer to its own destruction” (to quote from last year’s Tory party document “Believing in Britain”).
Yet “sovereignty” in the sense of unfettered freedom of action, is a nonsense. It is often preferable to accept constraints on freedom of action in order to achieve some other benefit. Britain is severely constrained by her membership of Nato. She is committed to intervene in the common defence if another member is attacked, and accepts a foreign (US) commander for such an operation. As Margaret Thatcher said at the time of the 1975 referendum: “Almost every major nation has been obliged by the pressures of the postwar world to pool significant areas of sovereignty so as to create more effective political units.”
For the past 15 years Britain’s Europe debate has concentrated too much on sovereignty and not enough on the concepts of democracy, legitimacy and accountability. This has never been more true than in the last couple of years, in which the Conservative party mistakenly took the view that a stridently anti-European tune would play well with the electorate. With the election behind us, there is now an opportunity for a more rational debate about the EU. That debate is no longer about whether Britain’s participation in the EU is a treasonable abdication of sovereignty. It is, rather, about how the emerging European polity can best represent, and be felt to represent, the will of the people. Only if people accept the legitimacy of the changing political order will they willingly accept the obligations imposed by it. If they do not feel adequately involved and consulted, they will eventually question their political obligation. That, it seems to me as an outside observer, is the lesson to be drawn from the recent Irish referendum and from the Danish one that preceded it.
Before looking at how the EU can become more legitimate it is worth placing the sovereignty debate in the context of recent history. In the 1950s Britain stood aside as Europe began to take shape. The reasons for that are legion. But one important strand in British reluctance was the wish to preserve sovereignty. It was fine for the rest of Europe to combine forces and to develop supranational institutions-indeed it was good. Britain, though, should remain captain of her soul. Yet by standing back at that time; by seeking to preserve our de jure sovereignty, did we maximise our de facto sovereignty-our influence over our own destiny? It is now generally accepted that we did not. By staying out, we allowed Europe to take shape according to principles that were alien to us. Once it became clear that we had no future as a serious player outside, it was too late. We eventually got in on terms that were much less favourable than those which were on offer more than 15 years before.
The same could be said of the French debate at the time of Maastricht. Opponents demanded “l’ind?pendence de la politique mon?taire” or de jure sovereignty. But the franc fort already belonged to the DM zone. So de facto French sovereignty could be maximised by accepting the single currency. The Bundesbank, quite rightly, took account only of German interests. But the French now have a seat on the European Central Bank, which has to look to their interests too. This, indeed, is the logic of the whole European project. The nations, by sharing de jure sovereignty, gain de facto sovereignty, or influence over their destiny.
Opponents of the EU point to Switzerland or Norway to demonstrate that Britain could be economically successful on the outside. They are not wholly wrong. Those who argue that we risk allowing jingoistic chants to lead us to the workhouse, exaggerate the case. We would suffer a bit, depending upon the terms we could negotiate for our trade outside the EU. Inward investment would fall. Unemployment might tick up a bit. But there would be no catastrophe; no Biblical plagues. The more important point is that far from gaining sovereignty, in the de facto sense, Britain would lose it. In international trade we would have to follow WTO rules with little opportunity of shaping them. That would be left to the heavy hitters: the EU and the US.
Most of our trade would still be with countries of the EU. We would still have to meet single market rules (as Switzerland and Norway must). But we would have no say in the shaping of those rules. And when we ran into barriers, for example when we were told that if we wanted to market our milk chocolate within the EU we would have to label it “vegelate” rather than “chocolate” we would just have to lump it. We would lose our ability to reduce the absurdities of the CAP (as we have done with some success over the years). And we would betray our heritage by leaving the leadership of Europe to a continental combine.
Much the same applies to the euro. For years the British debate has been about the pros and cons of a single currency. That was, and is, an interesting question. But the debate should have been about whether Britain was better off inside or outside a project which was going ahead anyway. In a few months time euro notes and coins will replace national currencies in most member states. And already the advent of the euro is having a profound influence on decision-making. Britain is no longer part of the inner circle of economic policy-making in the EU-the so-called eurogroup. Gordon Brown does not always bother to attend the traditional meetings of the 15 Finance Ministers (the Ecofin council). That is perhaps understandable insofar as the most enticing smells are starting to emerge from the eurogroup kitchen-with some of the Ecofin menu pre-cooked there. British diplomats hover about outside the eurogroup and pick up what scraps they can about plans for economic and monetary policy but they have no say.
There is growing pressure, of course, for closer economic co-ordination in the EU. Britain can resist indefinitely the extension of majority voting to new areas, and maintain her veto on sensitive issues like tax. But as consensus begins to develop in the eurogroup on economic, monetary and even fiscal issues, the economic and competitive pressures upon Britain to come into line, in her own interest, will become great.
Britain knows all this. Leader after leader set out with the best of intentions to engage positively in Europe because they knew that it was in Britain’s interest. But each has quickly run into heavy political seas. They have wanted to keep their options open, and they have resented the feeling that they were being pushed faster and farther than they wanted, or than public opinion would readily accept.
At present people feel sullen and alienated from the EU-not only in Britain, as we have just seen. And it is dangerous, because if people feel that they have no say; that policy is made over their heads; that the law is a scourge rather than a protection-they will eventually revolt. As Edmund Burke said: “People crushed by law have no hopes but from power. If laws are their enemies, they will be enemies to laws.”
Why do people feel alienated? I would suggest five reasons. First, as far as Britain is concerned, many people feel they were tricked from the outset. Those who negotiated our entry understood perfectly well that the EEC was more than a trade association. The 1967 White Paper acknowledged it. Edward Heath referred to the “pooling of sovereignty,” so did Margaret Thatcher. But that was the small print. It was not the popular perception, nor even the perception in Westminster. The 1975 referendum was about resolving an internal problem within the Labour party. Beyond that, it was mainly about the commercial benefits of Britain’s membership. It was, after all, the Common Market.
Britain’s entry coincided with the oil crisis and the 1970s recession. Post hoc propter hoc: Europe took the blame. But the rot really set in once it became clear to people that the EU was about more than a single market-because no one could agree what it was about: where the process of integration would stop. No one could tell them, because no one knew, and no one knows. I am clear that we are not talking about a superstate that will eclipse the separate nations. But I cannot define the exact vocation of the EU. We are working towards a unique construct in which the nations can preserve their separate traditions, languages, culture and identity-but in which they can also maximise their combined influence, help to secure democracy and prosperity over the European continent, and overcome what has been most destructive about nationalism.
It is all very well for me to say that. But how can people be sure that that is indeed the destiny of the enterprise? The EU evolves and people feel threatened because they can see no end-point. Above all, people do not feel they have any control over it through the democratic process. The European parliament plays its part. It is engaged in technical legislative work, and it does that work with increasing professionalism. But it is not the whole answer, because the nation states are-and will remain-the basic source of democratic legitimacy.
Yet-and this brings me to my second source of public alienation-the advent of the EU has accelerated the decline of national parliamentary sovereignty and prestige. In Britain, at least, this process was evident long before the European experiment. Parliament can and does matter-most obviously when governments have small majorities. But in Britain, the sovereignty of parliament has come to mean sovereignty of government. A president of the US has nothing like the power of a British prime minister. The select committee system was developed to put muscle behind the legislature’s efforts to hold the executive to account. But it bears no comparison with congressional committees in the US. The consequence is that people look less and less to parliament to redress their grievances. We used to sneer at French governments, held to ransom by lorry drivers or farmers: “L’?tat c’est les camionneurs.” Last year’s fuel blockade suggests Britain may be following suit
The development of the EU has accelerated this erosion of parliamentary authority. In part, this has been the fault of parliament itself. For years after Britain joined the EU most MPs simply refused to acknowledge the fundamental nature of the change. Ministers shuttled to and from Brussels, but only a few eccentrics took much interest in what they were up to. MEPs were for many years denied access at Westminster. The European parliament was held in contempt. The most able and ambitious stuck to national politics. MPs almost prided themselves on their ignorance of the European law-making process. Westminster was playing itself out of the game.
But even if Parliament had chosen to engage more fully in the process; even if MPs had done more to control the positions taken by government ministers in Brussels; there had been an undeniable shift of focus away from Westminster. From the moment Britain joined the EEC it had accepted the primacy of Community law over national law. The full implications were not immediately evident. It came as a rude shock when, in 1990, the European Court of Justice overturned a clumsy act of parliament designed to expel quota-hopping Spanish fishermen from our shores. Such an event might have occurred at any time over the previous 20 years. But the judgement was seen by many in Britain as a calculated affront: fresh evidence of the limitless hubris of an EU determined to transform itself into a superstate.
Yet the biggest assault of all on the British parliament has come from our own governments. For ministers, Brussels has been a welcome haven from parliamentary scrutiny. Decisions are taken in the council of ministers, and then-if they are unpopular at home-explained away as regrettable compromises imposed by flint-hearted partners. This brings me to my third explanation for public alienation. Success has a thousand fathers. When things go right, politicians claim the successes as national ones. But when things go wrong, or when unpopular decisions have to be taken, ministers of all governments treat something called “Brussels” as an alien process quite beyond their control. Brussels is not “us.” It is “them”: a continental conspiracy forcing us to adopt absurd regulations despite the best efforts of ministers.
A classic example of this process occurred a few years ago over motorbikes. The European industry was on its knees. Ministers, at the behest of industry, called for EU-level regulation, to achieve economies of scale and a single type-approval which would enable the same model to be sold throughout the EU. This happened in the early 1990s, when the worm had begun to turn against the European commission, and “subsidiarity” was all the rage. Jacques Delors double checked that national ministers really wanted what they were asking for. The Germans in particular, had telephone directories full of DIN standards, and no intention of diluting them to admit tinny scooters from other member states. So the commission found it was going to have to produce no fewer than 27 draft proposals covering everything from the size and positioning of number plates to anti-theft devices. Did ministers really want that, asked Delors?
National ministers gave him a flea in his ear. Industry desperately needed economies of scale. The commission should know its place and get on with the job. The Commission duly went about its work. But it had to make some difficult choices where national standards differed. Most member states, for example, had a limit on the maximum power of motorbikes. In Britain there was no such limit. The commission was bound to side with the majority if it was to get the legislation through. At once there were Hell’s Angels besieging the houses of parliament in protest. Ministers were quick to assure the protesters that they shared their indignation. This was the work of “Brussels.” It was “them”: Eurocrats run mad. Ministers would do their best to protect Britain’s ancient right to rocket-driven superbikes. But they warned that they might be outvoted.
The fourth reason for public alienation is doubts about the competence and professionalism of European administration. The EU has much to be proud of. It was the economic and political focus of Europe’s revival in the second half of the 20th century. It played a key part in the restoration of democracy in Spain, Portugal and Greece. It is now ready to play a similar role for many countries which lived for decades in the shadow of the Soviet Union. Moreover, the EU accounts for more than half of all official international development assistance and some 66 per cent of all grant aid. We are making a real difference in many parts of the world. In Kosovo, for example, we have just rebuilt or repaired 12,000 homes.
But policymaking and project-management at the European level can be frustrating work. It is complex and opaque. Because the separate nations retain so much power-as they should-it is often difficult to take decisions. Those that are reached are bound to represent only the highest common factor between competing national interests. There is mercifully little corruption. But it is notoriously difficult to manage multinational bureaucracies in which different cultures must be accommodated.
The consequence is that we do not always manage well. The European aid programme, for which I now have responsibility, has often been badly conceived and slow to deliver. I am determined to put that right, and flatter myself that we are making progress; in the Balkans our assistance in Kosovo and Serbia has arrived with a speed and efficiency that has pleasantly surprised our donors. But people who are prepared to forgive national governments at least some of their inevitable shortcomings are much less tolerant of the inadequacies of an institution based in another country.
Another reason for unhappiness is that there is an inevitable tension in the single market process. To overcome the highly inventive national barriers which exist in every area, European legislators have to go into excruciating detail. Witness the motorbike example. Interest groups urge us to iron out every barrier. Sullen populations and media demagogues urge us to stop interfering. The principle of “subsidiarity” is meant to guide us. But the choice is a subjective, political one. There is no right answer.
The fifth and final reason for public alienation is perhaps the most serious and the most interesting. It is the lack of emotional commitment to the EU. The concept of an international society is not one towards which people are attracted by sentiment or tradition. If you climb a mountain, it is the national flag you plonk on top of it, not that of the UN or of Europe. Passionate emotional attachments to smaller groupings-to town or region for example-form naturally. But it is hard to develop attachments to large ones. This is not to say that it is impossible to build loyalties extending beyond national or ethnic boundaries. Britain itself is an example of such a loyalty. In its day, too, the British empire created an emotional bond encompassing people of many races in many countries. It is hard to create such loyalties. And the EU is miles from achieving it.
How to build affection for international institutions is not just a European conundrum. It is a problem for the UN, for the IMF, for the World Bank, for the WTO. People accept intellectually the need to pool sovereignty in Europe and globally. But they feel little affection or loyalty towards the structure created for the purpose. Critics preach endlessly about the need to create democratic legitimacy, as if leaders and elites were obstinately refusing to face the problem. But European leaders have agonised about the so-called democratic deficit for decades. This is one of the great puzzles of modern times.
So how do we secure greater democratic legitimacy for the EU? Paradoxically, the most obvious remedy for lack of democratic underpinning is also the least likely to appeal to critics of the EU. Norman Tebbit used to sneer at the pretensions of the “unelected commission”-but he would not at all want to see it directly elected. Then we really would have the makings of a European superstate, with a government and a president of Europe.
Direct elections would further develop the authority of European institutions at the expense of national parliaments. Yet the EU has to accept that there is no European “demos”-in the sense of a population which feels itself to be one. The problem of legitimacy and democracy is therefore difficult. And it is especially acute, because the EU is so powerful.
The current legitimacy of the European commission is achieved in a number of ways. Members are nominated by elected governments and then approved in confirmation hearings by the directly-elected parliament. Our programmes and decisions are subject to scrutiny by the parliament and bodies such as the Court of Auditors and the ombudsman. We have recently introduced far-reaching transparency rules, which open us to direct public scrutiny. These are important mechanisms-but they have not yet brought real public acceptance. We can only begin to win that acceptance by explaining more clearly what we are (and what we are not); by focusing more single-mindedly on efficiency and results; by becoming more responsive to outside opinion; and by exercising greater self-discipline.
Another part of the answer to the legitimacy deficit lies with national parliaments. At present, the EU fails to draw on this source of legitimacy because its initiatives are often seen as an assault on national prerogatives rather than a common endeavour. If national parliaments had a more prominent role in the European process they would impart greater legitimacy to the supranational effort.
The advent of direct elections to the European parliament in 1976 severely reduced the role of national parliaments. It is too late now to turn back the clock-the European parliament fulfils an important role, it is not a job which could be done by national part-timers. But another possibility-proposed by Tony Blair, Vaclav Havel and others-is to create a second chamber of the European parliament which could help to apply the principle of subsidiarity: determining which decisions really need to be taken at the European level, and which should be left to the nations. Members could be drawn from national parliaments. They would not scrutinise all legislation, but look only at proposals that were opposed on subsidiarity grounds by a given number of member states. Was the legislation needed? Might the same purpose be achieved in a less intrusive way?
A further idea is that elections to the European parliament should take place on the same day as national general elections. Members would then change on a rolling basis as national elections occurred, rather than all in go every five years. There would be a double advantage to this. Not only would turn-out be higher, but political majorities would mirror the national pattern. At present, with European elections taking place in the mid-term of national parliaments, people often choose to register protest votes against unpopular governments. The consequence is that the overall majority in the European parliament can be idiosyncratic. It is more likely that links with national parliaments would develop naturally if political majorities within the European parliament more closely matched the national ones.
National parliaments, Westminster in particular, must engage more wholeheartedly in the European enterprise. Why not make MEPs ex officio members of the national upper house so that they can help to bind the national and European policy debates? National select committees should engage in a more systematic way in the European legislative process-taking evidence from Eurocrats and MEPs; and meeting sister committees in other member states. The political parties should engage more with their European counterparts, as I tried hard to do, especially with the German CDU, when Tory chairman.
Finally, we should try to define more clearly, in a political document, where the boundaries lie between national and EU prerogatives. The founding treaty of the EU calls for an “ever closer union between the peoples of Europe.” We should balance that ambition with wording to make clear that this does not imply a one-way ratchet: that “ever closer union” does not mean “ever dwindling nations.” This might take the form of an explicit assurance that the destiny of the EU is to work in harmony with member states, not to subsume them. If the language was sufficiently precise, such an assurance might encourage the European Court further along the path it has taken in a number of recent cases in reining back EU institutions.
There is nothing intrinsically virtuous about internationalism over nationalism. As Michael Lind has pointed out in Prospect, “It is not fair to hold up Hitler as a typical nationalist and Albert Schweitzer as a typical internationalist. It would be just as absurd to treat Gandhi as a typical nationalist and Stalin as a typical internationalist.” The concept of the nation state is alive and well. Indeed there are more nations in Europe than ever before. Yet it is widely accepted that those nations need to pool their sovereignty-and that the national and the international can fruitfully coexist. The problem is how to control and legitimise the structures created for this purpose. There may be no European “demos” nor, for reasons of language and culture, is there likely to be one. So if we want to increase democratic control we have to find better ways of connecting the national political institutions with the supranational ones. It is the central task of modern politics.