Supranationalism | Legitimacy | Elections | Constitution | Federalism | Referendums

For people to talk about achieving, say, a “social Europe” or a “free-market Europe” is for them to talk about illegitimately achieving their objectives.

This is basic democratic / constitutionalist potty training. Movements should not go about asking “hmm, how can we get what we want without doing it democratically?”

Any discussion of what the EU should do is a discussion of how to avoid proper democratic scrutiny of a policy, and so there should be no such discussion until the legitimacy issues are resolved.

Which demos?

The GLA example is a good one: what is necessary for the GLA / Mayor to be legitimate is not that the electorate feel that they’re Londoners (I don’t – I’ve only lived here five years), but that the generality of them are happy to abide by decisions of a London-wide majority. This is testable by opinion polling.

If a polity lacks legitimacy in this sense, then people will start opposing its constitutional setup as such, as well as decisions taken under it. And they’d be right: there’s less of a moral reason to obey the law (particularly a bad law) if it’s not democratically legitimate.

There are lots of mechanisms for dealing with trans-border issues affecting multiple polities: Benvenisti’s book “Sharing Transboundary Resources” is excellent on the effects of institutional setups on common resources such as lakes. The EU is only one set of such mechanisms, and a bad and unjustifiable one at that.

It is not the case that the generality of people, in any EU country, are happy to be bound by an EU-wide majority on almost any subject (except possibly the Eurovision Song Contest, which would be much better conducted by Europe-wide voting). It follows that much of what the EU does is rightly going to be regarded as illegitimate. Changing the institutions won’t change people’s opinions quickly or greatly.

Changing the powers of the elected institutions in the EU is not going to confer democratic legitimacy.

What is needed is for there to be a rough consensus amongst the generality of the population in each Member State, that they are prepared to be bound by the decisions of an EU-wide majority in the areas with which the EU concerns itself. The EU is hopelessly short of this sort of legitimacy.

To argue that this isn’t necessary puts one on the opposite side from Home Rule in 1918, and on the Tory side in the American Revolution.

Competence usurpation

Most EU competences are acquired not by treaty change but by treaty violation ratified by the Luxembourg Court, which has fewer than ten times (maybe fewer than three) in fifty years decided that a particular matter was outside the EU’s competence. Not only do the Irish have to worry about competence creep and a partisan judiciary, but horse-trading. It’s no good for tax harmonisation to require unanimity if the Irish Government can make a deal in COREPER trading off Ireland’s veto for something else.

What competences?

There’s no prospect of adequate democracy at EU level.

There’s a logically prior question about what ought to be decidable democratically at EU level.

Is there much evidence that citizens want to be bound by EU-wide majorities on particular policy issues, e.g., quantitative studies, broken down by policy area or country?

If there’s no demand for trans-EU majoritarianism, increasing the powers of political institutions which can impose trans-EU policies is only going to decrease the extent to which government is by consent, and government without consent is unsustainable. Indeed, Europe’s main supranational state, the United Kingdom, fell apart in the 1920s as most of Ireland did not consent to being governed from London. Never let it be said that supranationalism prevents war ;)

Direct election of executive

Some say a legitimate EU democracy requires a directly-elected executive. That’s setting the bar pretty high, as most Member States have indirectly elected executives – all the constitutional monarchies have to, and there are great parliamentary republics such as Germany and Italy. There’s more than one legitimate structural model. We do not, always, have to copy the French and the Americans.


Subsidiarity is, in practice, non-existent. To have actually existing subsidiarity, you need an enforcement mechanism. I think the enforcement mechanism needs to be judicial. (The ability of Member State legislatures to be able to block Directives on subsidiarity grounds is really a mechanism for preventing those legislatures from blocking Directives on non-subsidiarity grounds such as legality). The ECJ in Luxembourg has proven, beyond any doubt whatsoever, that it cannot be trusted to enforce subsidiarity. I think it’s a waste of time; subsidiarity was basically just borrowed out of Catholic Social Teaching to help get Maastricht past the nay-sayers, and has never been taken seriously by the authorities.

The EU does suffer from problems analogous to those the UK faced in the 1910s: the majority of the population of the UK no longer accepts the constitutional position of the terms of the UK’s membership of the EU.

As to national parliaments and subsidiarity, it’s a moot point given that there’s no effective mechanism for rejecting EU legislation which is ultra vires the Treaties, let alone EU legislation in areas of legally legitimate EU competence which happen to violate subsidiarity.

The majority of British people want less decision-making to be done at EU level. If these opinions do not change, would it be democratic to keep Britain in the EU, under the current or similar terms? Is it democratic to keep preventing them from having a say on any constitutional developments since Thatcher’s Single European Act?

It seems to me to be a contradiction in terms to want affairs within the EU be conducted more in accordance with the wishes of citizens, when the citizens don’t want affairs to be conducted within the EU in the first place.

Is it logically consistent to say that it’s Ok for the USA, Ireland, Scotland, Kenya, South Africa, Cyprus, Israel, Southern Rhodesia, etc to become independent of the UK, but that it is not Ok for the UK to be independent of the EU?

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