Democracy and Sovereignty

Now for one of my personal favourite topics: democracy and sovereignty. It is important to understand how the EU works before we can consider how democratic it may or may not be, given the criticism that is widely voiced of a democratic deficit and unelected bureaucrats imposing laws on the UK. So here I set out how the EU works, how democratic we may consider it to be, and how much influence the EU might have over legislation in the UK.

The EU has seven major institutions, four of which are directly involved in the making of laws (two are courts whose job it is to ensure the laws are followed, and the last is the European Central Bank, which sets monetary policy for the countries within the Eurozone). The four institutions are:

  • The European Council – made up of the Heads of Government of the 28 EU member states. For the UK, our representative is currently David Cameron. This body represents the interests of the member states. 
  • The European Commission – an appointed body, comprised of one individual from each member state with responsibility in one particular policy area. For example there is a Commissioner for Trade, and one for Agriculture, etc. This body represents the interests of the EU as a whole. 
  • The Council of the European Union (also known as the Council of Ministers, or just the Council) – made up of the government ministers from the 28 member states. It sits in various formations based on the policy area, for example, for the UK the Chancellor, currently George Osborne, sits on the Economics and Finance Council (Ecofin), and the Secretary of State for the Environment, currently Elizabeth Truss, sits on the Environment Council. This body represents the interests of the member states. 
  • The European Parliament – comprised of MEPs directly elected by the citizens of Europe. This body represents the interests of the European citizens, and there is a number of representatives for each country proportional to the size of their population.

The majority of EU legislation is made using the co-decision process, also known as the Ordinary Legislative Procedure. Before the Treaty of Lisbon, which came into force in 2009, there were a range of different law-making procedures for different policy areas, but since 2009 almost all law that comes from the EU is made in this way. This is how it works:

  1. The European Council sets the priorities for the EU’s agenda. The priorities emerge from the meetings or summits that the European Council holds, and sometimes they are short term priorities and other times can span five or more years.
  2. Based on these priorities, the European Commission proposes specific EU laws intended to fulfil them, and informed by what is in the Treaties that govern the EU and that have been agreed upon by all member states, sometimes through referendums and others through the agreement of parliament. 
  3. The Commission’s proposals are debated and voted on by the European Parliament, representing the interests of the citizens, and the Council, representing the interests of the member states. A majority has to be reached in both institutions in favour of the law for it to be passed. If they do not agree, they can propose changes to the law and vote again on whether to support it.

There are three main types of legislation that come out of the EU: regulations, which are binding and must be followed immediately in the member states; directives, which can be interpreted by the member states and implemented in a way they deem appropriate; and opinions, which are just views of the EU institutions that do not require, but may prompt, action in the member states.

How democratic is it?

The answer to this question of course depends on how you define and judge democracy! Perhaps a useful way to think is in terms of the political system we currently have in the UK, and how the EU’s legislative process compares.

In the EU, UK citizens are directly represented by elected MEPs in the European Parliament, and represented in the European Council and the Council of Ministers by ministers who we have indirectly elected through UK general elections. In the most recent European Parliament elections, turnout in the UK was just 35.6%, compared with an EU average of 42.61%.

European Citizens also have the opportunity to ask the European Commission to initiate legislation in an area that they feel strongly about and that falls within the Commission’s powers. This is known as the European Citizens’ Initiative (ECI) and was launched in 2012. One million citizens are required to sign an ECI in order for the Commission to consider proposing a new EU law in that area.

In the UK, the government, which sets the priorities for legislation, is appointed on the basis of which political party has won the most seats in the House of Commons in the general election. Individual items of legislation are proposed by government ministers, debated and voted on in the House of Commons (though the system of whipping means the MPs from the major political parties are told which way to vote in most policy areas). Once the legislation is agreed to by the MPs, it goes to the House of Lords (comprised of appointed or hereditary peers) for debate and voting. When agreed to by both Houses of Parliament the legislation goes to the Queen for the stamp of approval. In the 2015 general election, the Conservative Party, which went on to form the current government, won 36.8% of the votes cast (with electoral turnout at 66.2% of those eligible to vote).

There are democratic flaws in both political systems, and it is difficult to envisage a system that could encapsulate a perfect form of democracy.

How much UK law is influenced by the EU?

There is so much variation in the estimates given for what percentage of UK legislation is influenced or affected by the legislation coming from the EU. The House of Commons Library conducted a study in 2010 which found that there were many different ways of calculating estimates for the percentage of UK law influenced by the EU. In 2015, the analysis in the earlier briefing was updated and it was found that between 1993 and 2014, 13.2% of UK Acts of Parliament (creating new laws or changing existing ones) and Statutory Instruments (a secondary way of changing an Act of Parliament without creating a new Act) “implement or refer to UK obligations under EU law”. This does not include EU regulations however, which come into force in the UK without the need for any action of Parliament. A calculation including regulations can, according to Full Fact, lead to a reasonable estimate of around 62%. However, there are many other ways the EU can influence law in the UK so it is impossible to put a figure on the ‘influence’ of the EU on UK law.

Part of the reason this is a very difficult question to answer is that just counting laws doesn’t take into consideration their impact. The EU’s influence is different in different policy areas, as the EU has different levels of powers, or competence, in different fields.

Areas in which the EU has exclusive competence, so is alone in having the power to make laws, includes: trade (also known as the customs union); the common fisheries policy (where this involves the conservation of marine resources), and, for the countries inside the Eurozone, monetary policy.

In some areas, the EU and the member states share the competence, so the member governments are free to make their own laws so long as they don’t contradict anything the EU has already put into law. These areas of shared competence include: other parts of the internal market than the customs union (trade), which includes the free movement of people, services and capital throughout the EU; the environment; energy; agriculture; consumer protection, and the area of freedom, security and justice, among others.

In all other areas, the member states retain the capability to make their own laws and the EU has no power to make any legislation. This includes education, healthcare, and tax, among others.

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