Understanding EU legislation - sovereignty versus collectivism
by our secret columnist in Brussels
Where do the tomes of European Union legislation come from? Only the European Commission can propose a new measure and the proposal must have a treaty base. Member states and the European Parliament can invite the commission to make a new proposal, but it is not obliged to entertain the request. Nothing in the EU is ever dead straight. One of the words used in the German text of the treaty is stronger than "request". Newcomers at the European Council table may have to be reminded that they cannot charge the commission to do anything. This is one of the reasons why the idea – which the late Polish EU presidency picked up somewhere or other - of combining the jobs of president of the commission and president of the council belongs to cloud-cuckoo land.
New ideas come from the commission endogenously or from an interest group, which would like something done. Copyright law on "out of commerce" products is a current example. There is an informal rule, which prescribes "less regulation but better" to winnow out - or it should - matters within the union's "competence" - which are not worth taking on. Regulations, adopted by the council and the EP, are law and are not transposed by national legislatures. The European Court of Justice says so, in case further process changes them. This gives colour to the idea that they are anti-democratic. But they have been endorsed by democratically elected governments, and parliamentarians under, in many cases, a democratic principle of majority support.
The uncontrolled and wicked machinations of the "unelected bureaucrats" of Brussels are the stuff of legend. Of course, the bureaucrats get up to tricks. The European Working Time Directive, which notoriously gets in the way of the training of junior doctors, was brought in under public health provisions – a majority vote of 11-1 against the United Kingdom - rather than the social contract, from which Britain had exempted itself in the Maastricht Treaty. The British Minister – a Conservative - angrily and rightly complained that this was bringing the social contract in "by the back door". The bone of contention remains, with sharp minds exploring how to get round the restrictions and - standard form in Britain - assertions that other member states simply disregard any rules, which do not suit them.
The commission once conceived the notion of declaring the manufacture of London's black taxis uncompetitive because only one company makes them. It was planning something nasty for the German car industry and badly wanted to appear even-handed. It was simplicity itself for the UK to explain that not even the mighty EU could compel another firm to master the tight specifications laid down by the Metropolitan Police. You do not get a new regulation unless it is provided for in the treaty and accepted by decision of the member states, in most cases by a majority of them, plus a majority vote of the EP. The separate question is whether every member state scrupulously enforces such rules as give it political difficulty. Who was an advocate of majority voting? The previous Conservative government in Britain, seeking to ensure that in an enlarged union - the single market would not be cut up. When its successors say back to old style decision by unanimity, they are hoist with their forbears' petard.
The pity is that the parliamentary system has failed to give the electorate any power of decision over successive changes to Britain's relationship with the EU.The main parties have conspired to bury the EU as an electoral issue.When EU issues have become important at election time, the parties have used the prospect of a referendum to avoid or defer serious discussion.
Of course, what particularly sickens about Lisbon is that the commitment to a referendum was withdrawn.I hope I am proved wrong, but I see little sign that Cameron wishes to open up Britain's future in the EU as a political issue. If we are offered a vote, it will be to approve sweet nothings, like the Irish Parliament - which has become a shadow of its former self. As the scope of parliamentary lawmaking and scrutiny has shrivelled, so has its authority and respect. Parliament, and through it the British people, is sovereign no longer.
Shadany
