- There is a risk that claims of the EU’s democratic deficit are over simplified.
- The issue of the EU’s democratic deficit should not dominate the EU referendum debate.
How does the EU make law?
The key criticism in relation to the democratic deficit goes something like this: laws are made in Brussels by people we can’t control.
Is this true? Let’s look at how law is made in the EU…
As we discussed in Part 1, the key source of EU Law is the Treaties. These are made and agreed by all 28 Member States. In other words, they are agreed by our democratically elected representatives. These Treaties give the EU its powers (or competences) in quite broad terms, and confer specific powers on the EU’s institutions to pass secondary legislation to put those competences into practice. Let me give you an example – one of the EU’s competences is consumer protection. On its own, that’s quite vague, so the EU’s institutions are given specific powers to put that policy into practice and create secondary legislation (so, for example, to introduce laws on product safety). This is a structure our government has agreed.
Therefore, it is important to bear in mind that the EU can only pass legislation in the areas in which it has power to do so – it does not have the power to legislate in any area of its choosing.
There are three main ways in which secondary legislation is passed in the EU:
- A process known as co-decision – the actual process behind this is very complicated (as my former students well know – although here is a flowchart if you want to understand it or you are a masochist: http://ec.europa.eu/codecision/images/codecision-flowchart_en.gif). However, the idea behind it is quite simple – legislation is proposed by the European Commission, which must be approved by both the Council of the European Union and the European Parliament for it to become law.
- There are a series of other procedures by which legislation is proposed by the European Commission and can be passed by the Council of the European Union either with or without the approval of the European Parliament. These are rarely used.
- Legislative powers can be conferred on the European Commission itself, either by the Treaties or by the Council of the European Union and (normally) the European Parliament adopting a piece of legislation which gives powers to the Commission to adopt legislation. This is very similar to what happens in the UK where Parliament may pass legislation permitting a Minister to adopt secondary legislation.
Does the EU have a democracy problem?
Based on this – is it true to say that the EU has a democracy problem?
To deal with this question fully would probably take a lot more words (and there is a real risk that I may send you to sleep). So here are my thoughts in brief…
I accept that the EU is not a fully democratic body. Its institutional structure is not perfect by any means, but it has a number of democratic elements, which cannot be forgotten:
- As I point out in Part 1, the EU is based on Treaties, which have been agreed by democratically elected representatives of every Member State. These treaties give powers to the EU’s institutions to make law – so the Member States have decided that the EU should have the power to make law in a given area.
- Law passed within the EU has democratic input. As I mention above, it is passed in one of three ways:
i) By the European Parliament (made up of democratically elected individuals) acting with the Council (who is made up of democratically elected ministers of the Member States).
ii) By the Council alone (made up of democratically elected ministers of the Member States), which will normally consult with the European Parliament.
iii) By the Commission, who will act under powers that have either been given to it by the Member States via the Treaties, or by the Council and (normally) the European Parliament.
- Whilst the Commission is not democratically elected in the traditional sense, it is not correct to say that there is no democratic input into its composition. The democratically-elected European Parliament approves both the President of the Commission, and of all Commissioners as a body.
Voting on legislation
However, I should acknowledge that when the Council acts, it can pass secondary legislation by something called a qualified majority. This means that for legislation to be passed by the Council it must be approved by 55% of the Member States (at least 15 of them), and those Member States must comprise at least 65% of the population of the EU. There is, therefore, a risk that secondary legislation may be passed without an individual Member State agreeing to it.
There are four points to be made in response to this: i) in practice, the Council tries, wherever possible, to ensure that legislation is passed with the agreement of all Member States; ii) even if the Member State does not agree to that particular piece of legislation, it has agreed to the EU acting in that area generally; iii) the UK retains a veto over legislation in particularly sensitive areas such as foreign affairs and taxation, because in these areas legislation must be passed with the agreement of all Member States; and iv) this practice mirrors what happens in the UK – for example, legislation can be passed without our individual MP agreeing to it.
A final thought – we should focus more broadly than the issue of democracy
My final point is that the issue of democracy should not dominate the referendum debate. We are members of a number of other international organisations that are not fully democratic: NATO and the Council of Europe/European Convention on Human Rights being other examples. The EU is perhaps the most democratic of these international organisations, yet is the most regularly criticised for a lack of democracy.
To my mind, the reason governments join international organisations is for the benefits they bring to a country, not because of their democratic credentials. That should be the focus of this referendum – whether the EU brings benefits to the UK. Issues of democracy can be resolved by reforms to the EU’s institutional structure, something that has been going on for a number of years. If we remain part of the EU, we can influence that structure and improve it. If we leave, we lose that control.
The key question, I would suggest, is whether the UK sufficiently benefits to justify remaining part of the EU, rather than whether we agree with its structure.