European Parliament/Flickr. (CC 2.0 by-nc-nd)
When the EU’s heads of state and government met in Laeken in 2001 to start the process that culminated in the Lisbon treaty, it was not meant to be like this. A new settlement was to be built that would not only be the byword for constitutional democracy beyond the state but that would also provide the framework within which a post-national community could live at ease with itself. Individuals were to be as comfortable being and living alongside EU citizens as they were alongside national citizens.
Fast forward nearly 15 years and migration has become a touchstone for the dissolution of that dream. The rawness of its politics has consumed the EU’s decision-making structures and seemingly overwhelmed its authority. More pervasively, migration is associated with a climate of popular mistrust of political institutions, both national and EU, in which the latter are perceived by a part of the citizenry as unresponsive and unable to deal with claim and counterclaim. The commitments of national citizens to foreigners, be these other EU citizens or non-EU nationals, has been called increasingly into question and into competition with commitments to fellow nationals.
It would be tempting and wrong to see this as part of the policy swirl surrounding migration. Political institutions are put in place to mediate and contain social conflicts in an authoritative manner. If this is not happening, there is an institutional problem. And so it is with the European Union. Put simply, in the period between Laeken and the ratification of the Lisbon treaty, eight wasted years, it focussed on the wrong question: namely how to make EU decision-making more democratic.
A better question would have been to ask when the European Union might have democratic authority. This would have involved addressing three debates.
The nature of what the European Union does
This does not regard whether the EU sticks to what the treaties say or whether there has been mission creep. It goes rather to the types of activity at the heart of the EU’s business. These have historically been centred on four things: regulation, stabilising the economy through short-term interest rates, protecting marginalised interests from majoritarian abuse, and transnational policing.
In this, the EU has arguably brought a level of democratic input that might not otherwise have occurred. A range of parliamentary oversight and stakeholder involvement has been provided over regulatory activities that would not be present within many national systems. What other regulatory system would have public debate over the vegetable fat content of chocolate for 20 years? Equally, the European Union has provided opportunity for a range of interests historically poorly served by national structures: women; black, minority and ethnic groups; LGBT groups; the disabled; consumers; and ecological interests. It has arguably allowed greater plurality to political participation for British citizens in all these fields.
However, these types of government activity do not win plaudits. Federal regulators in the United States are resented for reasons similar to those aimed at the European Union, namely the sense of pervasive interference that characterises much modern regulation. The job of central banks is to be party poopers by cutting off easy money. And, finally, protecting causes poorly served by parliaments might be noble but it chafes at the populist calls. All this is exacerbated by the EU being given many intractable tasks. Internet crime, financial services regulation, generating competitive markets or combatting climate change are all challenges which test the capacity of any political system to secure and maintain.
From the mid 2000s onwards, this anomie took a different turn. The EU came to govern mass migration. The sovereign debt crisis led to its governing the fiscal and welfare policies of a number of states. Migration, taxation and spending are the bread and butter of national elections. The EU was not only pre-empting choices that were central to electoral choices but it institutional settlement was poorly equipped to deal with such politics. It was built around a stakeholder democracy; a parliament which, in practice, reviewed and amended the decisions of national governments and the commission rather than mediated social conflicts; and a decision-making process dominated by administrative interests.
Relative democratic authority
The European Union does not adopt laws in a vacuum. Not only will any EU law displace a national law or the opportunity for there to be a national law, EU laws often cut across other national laws destabilising the operation of the latter. An EU competition or consumer protection law will therefore affect national contract laws. The destabilising effects of EU law, therefore, ripple out across national legal systems. The justification that this makes possible the realisation of collective goods that cannot be achieved through unilateral national action alone, such as the single market, will not cut it. The benefits of these goods must be weighed against the benefits provided by national policies that must now be foregone: be these local, environmental, regional, cultural, health or social policies.
The issue is not therefore whether the European Union is democratic. It is rather whether its democratic credentials are sufficient to justify obedience for its laws over laws with competing democratic credentials of their own. The test is one of democratic authority not democracy. It is also relational, namely whether EU law has more democratic authority than other international, national, regional, or local laws.
The threshold for EU laws to enjoy relational democratic authority ought to be a high one. There should be a bias against centralisation of power with all the possibilities for abuse and capture provided by it. In other words, centralised authority should always have to justify itself more strongly than decentralised authority. In addition, only about 3% of British citizens identify themselves as more European than British. Asking them to obey EU law is asking them to submit to a legal system with which they identify less. It makes sense that a stronger case should be made in such circumstances.
That said, a strong case can be made for the European Union having relative democratic authority in a number of circumstances. As mentioned, it can allow British citizens input into the realisation of certain collective goods (i.e. trade, protection of the environment, tourism) that might not be available to them through domestic action. The same is true of averting certain collective bads (transnational crime, financial disaster, terrorism). In addition, by providing a critical mirror for how others perceive us and our laws, the European Union can also allow a distinctive and valuable revisiting of political community and what commitments we owe as Britons to each other. If democracy is also about getting things ‘right’, the European Union creates unparalleled expertise by bringing together 29 bodies of regulators, the national ones and the EU one.
However, these democratic benefits must be set against the democratic costs of action. Any action to realise any of these will foreclose local procedures, prevent other choices being made, and deny other visions of political community. This test of relative democratic authority should, moreover, be a political test. If the usual test for collective action (the presence and content of legislation) is political and contestable, it follows that the test for whether we should have collective action at national or EU level should also be political. This possibility should exist, moreover, during the lifecycle of EU legislation in just the same way as there is always the possibility to amend or repeal domestic legislation.
There has been no engagement with this question of relative democratic authority as it is believed that it would challenge one of the foundations of the EU: the primacy of EU law and the possibility for this to be enforced in national courts. Without this primacy, it is argued, commitments would be simply paper, trust would break down; and freeriding would be rampant.
Like many asserted truths, this argument is nonsense. There is no primacy of EU law in Norway but in May 2015, the last date for statistics, it was better in transposing EU law – a good proxy for level of commitment – than any EU state. By contrast, in Mercosur, the South American regional arrangement, there is primacy of Mercosur law but considerable problems with the enforcement of commitments. If looking outside the European Union is too much for some, one can easily find a similar pattern within the EU. Only a small proportion of EU law, probably less than 1%, is regularly invoked in national courts. The rest relies for its enforcement upon infringement proceedings brought by the European Commission before the European Court of Justice. In 2014, the court gave 44 judgments of which 41 were won by the commission. Most of these cases originated in 2012, a year in which the commission found over 1000 cases to answer. This pattern is completely consistent with a relaxed system of enforcement that allows some national leeway over EU law.
An ethos of citizenship
If political community is an awareness and commitment that combines a sense of ‘who we are’ with that of ‘what we are’ politically, research has shown this to be important in shaping attitudes towards European integration. How EU aligns with and confronts individuals’ sense of what their political community and/or nation stands for can determine their pre-disposition to the EU. So can their sense of commitment to fellow citizens, and whether they perceive themselves as communitarian or individualistic. Perhaps more importantly, political community is central to a number of valuable features of modern political life. It secures trust in political systems. It induces sacrifice for collective decision. By describing itself as a community of free and equals, it paves the way for mutual commitments based around what individuals have in common. These commitments are often more generous than those grounded in solidarity, which focus on the differences between individuals.
The perils of destabilising and undermining political communities within the European Union have been recognised in treaty commitments to respect national identity and national citizenship. Unfortunately, these have been no more than paper commitments. In large part, this is because the European Union and EU law, in particular, has not chosen to engage with what these are about. This has allowed it to encroach upon them in fairly untrammelled ways.
This is particularly acute with the case of citizenship, which sets out a series of individual rights and responsibilities for the citizen, confers a privileged status upon her, and sets out a commitment by the political system towards her.
It is worth setting this out a little more. Although modern citizenship is seen as an eighteenth century incarnation, its ethos lies in the combination of three forms of political associations whose roots lie in Mediaeval Europe. The civitas had the political community as a space of mutual civility and security. The societas was a political association that carried out activities for the common benefit. The universitas was an association that insisted that subjects’ mere presence conferred on them special value and esteem. Citizenship is, therefore, concerned with giving members of a community a quality of engagement, security, sense of worth and esteem, and collective benefits which are not available to others more generally.
As expectations of political systems have evolved, so the rights generated by this ethos have correspondingly developed from civil liberties to political rights to vote or hold office, and, with the arrival of the welfare state, to entitlements including social assistance, health, housing, education, and pensions. Bryn Turner observed at the turn of the millennium that, in a world characterised by mobility and fluidity, citizenship would increasingly need to protect citizens’ sense of security and place against this volatility. Indeed, much of the current British debates – be they on zero-hour contracts, ‘generation rent’, the right to be forgotten, high street change – speak to this issue precisely.
EU law has undermined this sense of citizenship, and the ethos that goes with it, in two significant ways.
First, it legally protects many of the processes which have given rise to this fluidity. It is well known that free movement of labour and capital are protected by the EU treaties but the extent to which freedom of establishment has restricted the ability of states to tax mobile actors is less well known. There exist, however, less evident but equally severe restrictions. The legal commitment of member states to maintain sound public finances exists, in large part, to reassure bond markets so that member states can more easily tap into them. This commitment is ratcheted up every time there is angst within these markets. Stronger commitments to balanced budgets across the economic cycle were, thus, unfurled during the height of the crisis in 2012. As a consequence, states undergoing severe difficulties in their public finances are forced to make more detailed commitments in the memoranda of understanding concluded within the aegis of the European stability mechanism.
To be sure, all this might generate austerity but a less commented effect is the instability in fiscal and welfare policy-making induced by all this, as governments scramble to show evidence of commitment. Senior Greek and Portuguese courts have railed against sudden changes to pension regimes in those states. The German constitutional court has, conversely, been unhappy about the unaccountable manner in which large amounts of German taxes were committed to underwrite the scheme. In all instances, in both creditor and debtor states, the rallying call of these courts was that it was undermining national citizenship.
Secondly, EU law cuts across the sense of equality between citizens by introducing a divide most notably between the mobile and the immobile. It enfranchises the mobile, granting rights of mobility, civil rights, social rights and some political rights. It does not do this to the immobile. They are only bequeathed what the mobile bring to them (in the host state) or return to them (in the home state). This is disenfranchising for the immobile. They are passive in all this. Migration is something which happens to them. And this position of passivity is often alienating.
Notwithstanding its positive fiscal effects and the many wider social gains it can bring, migration also challenges the sense of relative status of the immobile. Put simply, it might not be that the mobile are doing badly in their neighbourhood or overseas but that they are doing rather too well. In a world where mobility is framed as grasping opportunity, the immobile can too easily be accorded the status of the left behind. Debates about housing shortages, school places, or changes in the high street are all assertions about people losing their relative sense of place within their neighbourhood. If an unattractive politics of envy tinges such a narrative, it is because relative status is something which matters to almost everybody.
It is not simply that the European Union engages with national citizenship insensitively. It also fails to provide an ethos of citizenship beyond the state. As is well known, EU citizenship is granted to any member state national who is marginally economically active – 12 hours work per week is sufficient – or who is economically self-sufficient. These acquire all the entitlements of national citizens with the exceptions of the right to vote or stand in national elements, or to work in certain parts of the public sector.
It is unclear, first, why labour should be used as evidence of commitment to a host society. As Hannah Arendt noted in The Human Condition, an individual governed by the world of work is one judged by the values of productivity and abundance at the expense of other values that connect us. Intuitively, we know that migrants enrich the lives of others and their host societies in more ways than what they secure through their work. It also makes commitments subject to the distortions and vagaries of the labour market. Individuals lose work, they lose their citizenship rights. If governments take supply side measures to curb unemployment, this has the effect of creating new EU citizens on their territory.
This, secondly, leaves a whole at the heart of EU citizenship. It is unclear what it is for. It will be suggested EU citizenship could afford two marvellous things. It should, first, be about enlarging opportunity. Mobility gives the people the ability to acquire new experiences, new careers, new love, and a quality of life that might not be available to them otherwise. Secondly, it can secure integration within another society. It should (but does not currently) say that national citizenship is a wonderful thing. When you have committed yourself to another society by living there for a while, and enriching it in the ways any individual can, it is right that you acquire equivalent benefits. It would secure almost all the privileges of citizenship for those that are not citizens but have committed a significant part of their lives to that society. Whilst the human rights of others should be protected, it is unclear why those who have not made that commitment through their length of presence should have these privileges.
Neither the Lisbon Treaty nor the reforms secured by David Cameron, the British prime minister, address sufficiently directly any of these debates. The first debate about the nature of EU activities is the most intractable and goes to how central EU activities are made subject to the vigour and rigour of domestic political contestation. The second requires that procedures be placed at the inception or amendment of any EU law for checking its relative democratic authority and that further processes are instituted to ensure that this remains so throughout the lifecycle of the measure. The final debate would have required two things. First, it would have necessitated a restatement of what national citizenship is about, possibly by a conference of national parliaments, with a guarantee that these matters were political contestation at a national level. The second would have been to bind EU citizenship to a clear ethos of its own, namely that of opportunity and integration.
Without such reforms, it is likely that the EU will continue to be perceived as authoritarian, allergic to political contestation, and a dismantler rather than a builder of political community. And this will remain a European problem with or without the British.