It seems probable that the issue of a referendum on adopting the euro will be put on the political back-burner for the time being. But the Congress will need to remain vigilant against further threats to UK democratic self-government. The greatest threat is posed by the proposal to have a fully-fledged Constitution for the EU, as distinct from the patchwork of legal provisions resulting from successive amendments to the Treaty of Rome. This is likely to be the most important issue facing Congress over the next two years.

The European summit meeting at Laeken in December 2001 adopted the "Laeken Declaration" which recognised that the EU "needs to become more democratic, more transparent and more efficient." It established the Convention on the Future of Europe and stated that "it will be the task of that Convention to consider the key issues arising for the Union's future development and try to identify the various possible responses." Despite the limited nature of this mandate, the Convention has proceeded headlong down the road of drafting a complete new Constitution for the EU and has ignored any other possible responses.

The Convention is itself undemocratic in its procedures, reflecting the fundamentally top-down nature of the EU. It is unconcerned about the relations between its members and their national governments and legislatures. The President (Valéry Giscard d’Estaing) dominates a small Presidium which in turn dominates the Convention. The Presidium formulates and publishes draft treaty Articles without prior consideration by the whole Convention. Contrary views of members of the Convention are marginalised. The President in a rare newspaper interview about its work made no mention of democracy or democratic accountability, despite the fact that the Laeken Declaration had made that the key task of the Convention.

According to its present timetable, the Convention is due to finish drafting the Constitutional Treaty in June, with a view to its being adopted as a Treaty by an Intergovernmental Conference under the Italian Presidency, which ends in December 2003. It is possible that this timetable will not be achieved, since there are significant disputes about the balance of power between large and small states and inter-institutional battles between the Commission, the European Parliament and the Council of Ministers. The disputes are all about how the increased centralised powers should be allocated, not about whether or not there should be further centralisation.

The Presidium has now formulated several hundred pages of draft treaty articles in batches. Articles 1 to 16 establish the objectives and legal personality of the Union and allocate competences between the Union and the member states. These draft Articles are the subject of an excellent Report by the EU Committee of the House of Lords. The Committee's Report raises many matters of concern. Congress will be particularly interested in those that impinge on democratic control and accountability, features prominent by their absence from the EU's previous Treaties.

A Constitution, not just a Treaty: The European institutions are bodies which are created by and derive their powers from treaties between the member states. A Constitution differs from a mere treaty. The federal constitution of the United States allocates certain governmental powers to the Federal institutions, executive, legislative and judicial. Although the Constitution was originally established by agreement between the States, once adopted it became something more than a mere treaty between the States. The US Constitution is an independent source of legal authority which empowers the Federal authorities to take action: even to make war on the states themselves, as was graphically demonstrated in the American Civil War.

The Convention’s draft calls itself "A Treaty Establishing a Constitution for Europe". This implies that although it is a Treaty, once it comes into force it will have established something more, a Constitution. Article 1 states that "This Constitution establishes a Union ..." There are repeated references to powers and duties which are conferred or imposed "by the Constitution". Article 9(1) states that "The Constitution, and law adopted by the Union Institutions in exercising competences conferred on it by the Constitution, shall have primacy over the laws of the member states." All these references to the Constitution as the source of legal authority differ from the present texts of the EC and EU Treaties in which "The High Contracting Parties" (i.e. the member states) "establish amongst themselves" the EC and the EU.

It is clear that the draft aims to supplant the member states and their own constitutions as the supreme source of legal authority and to elevate the new Constitution to that status, in the same way as in the United States and in other federal states where the federal constitution is supreme. If it succeeds in this aim, it would destroy the ultimate sovereignty of the United Kingdom Parliament which still exists despite the present European Treaties.

Subordination of the Member States: At present, the powers of the European Union and its institutions are dependent on the treaties between the member states. As creatures of the member states, their powers are limited to the competences which the member states have conferred on them by treaty: even if these competences are interpreted ever more widely by the Commission and the European Court.

A Constitution is conceptually different. It defines and limits and shares out powers between the Union and the member states. By doing so, it defines, limits and confines the powers of the member states. As already pointed out, Article 9(1) explicitly confers "primacy" on the Constitution and on European laws over the laws of the member states. Although the doctrine of primacy has been developed under the present Treaties by the European Court, the doctrine is not accepted by, for example, the Federal German Supreme Court if EC law conflicts with the constitutions of the member states. The new European Constitution seeks to over-ride this residual sovereignty of the member states.

The Constitution gives to the Union exclusive competence in relation to free movement of persons, goods services and capital in the internal market, competition rules, the customs union and common commercial policy, and fisheries; and a new and vastly wide exclusive competence in the conclusion of international agreements where the agreement "affects an internal Union act". This, coupled with competences to define and implement a common foreign and security policy (including defence) and to co-ordinate the economic policies of the member states, would mean that member states would lose the power to conclude international treaties in their own right on any matter of significance. International treaties and agreements in future would be concluded in the name of the Union, not of the member states, because Article 4 confers legal personality on the Union.

In addition to these exclusive competences, the Constitution confers on the Union a vast range of so-called "shared" competences. The word "shared" is very misleading: in such areas, the member states "shall exercise their competence only if and to the extent that the Union has not exercised its" (Article 10(2)). This is not sharing in any meaningful sense: the competence of the member states is residual and on sufferance in the vast areas of the internal market (such as is not already covered by exclusive competence), judicial co-operation, agriculture, transport, energy, social policy, environment, public health and consumer protection.

Even beyond the areas of exclusive and "shared" competences, the Union is given further competences to take "coordinating, complementary or supporting action". The powers of the member states will become an ever shrinking residue, and even in exercising whatever powers they have left the members states will be under a duty of "loyal cooperation" towards the Union (Article 9(5)).

The EU Charter of Fundamental Rights: This would be given legal force as part of the Constitution. This vague and wide reaching document would be given the status of supreme law, yet further expanding the scope of the European Court to interfere in the internal affairs of member states.

New "European laws" and expansion of majority voting: Under Article 24, regulations would become "European laws" and directives would become "European framework laws." This change of name reflects the increased range of subjects on which these laws would be passed. The voting mechanisms are under discussion but it is likely that the Constitution will provide for expanded use of majority voting.

Giscard’s new "politburo": A new post of a permanent President of the European Council would be created, assisted by a new Minister of Foreign Affairs who would also assume the present function of the Commissioner for external relations. The present "three pillar" intergovernmental arrangements for foreign and home affairs matters would be swept away and rolled into a single institutional structure.

"Flexibility" to expand its powers still further: Article 16 of the Constitution turns the concept of flexibility on its head. If EU objectives cannot be achieved under the powers in the Constitution, the Commission can initiate change by making a proposal to the Council so that the Council, acting unanimously and with the assent of the European Parliament, can "take appropriate measures." This mechanism would allow expansion of the powers of the Union outside the already wide powers provided in the Constitution by a mechanism which bypasses the usual process of constitutional amendment involving votes in national parliaments and/or referendums. As a sop to those who see this as an affront to basic democratic processes, the Commission is to draw the attention of national parliaments to any such proposal, but they have no power to veto it.

The Constitution pays lip-service to democracy, but only on a Europe wide basis. An essential basis for democracy is a common political and legal culture, as in the USA. This is impossible in a Union which will grow to 25 countries in the near future. Even if the European electorate were capable of thinking and acting collectively, the mechanisms by which persons such as the new President of the Council are appointed and through which powers are exercised are labyrinthine and oligarchic. Indeed, if the Union applied to join itself it would be rejected on the grounds that its institutions were insufficiently democratic. There is nothing comparable to the direct election of the President of the United States.

As regards the rôle of national parliaments, the Constitution is positively insulting. Apart from being sent papers which they should be seeing already, their only formal power is to send in a "reasoned opinion" if they think that a measure would contravene the principle of subsidiarity. The European institutions are then obliged to "take account" of the opinion but can proceed regardless. Even if a third or more national parliaments send in such reasoned opinions, the only obligation of the Commission is to "review" its proposal after which it can maintain, amend or withdraw it.

Both Giscard and the Commission have been worried about what would happen if one or more member states fail to ratify the new Constitution, possibly after adverse referendum results. They have been playing with ideas designed to pressurise such countries by trying to force them out of full membership of the EU into some form of associate membership as an alternative to ratifying.

The fundamental legal position is that the existing Treaties need to be amended, or repealed and replaced, in order for the new Constitution to come into force and this process unambiguously requires the consent, in accordance with their own constitutional requirements, of each member state. The Commission has come up with the idea that governments of the member states would make a "solemn declaration" of their intention to remain part of the EU before the new Constitution entered into force. By making such a solemn declaration governments would be binding their countries politically to the new Constitution, so forcing their populations or parliaments to back them.

The logic of this is that each government would have to resubmit its proposals if it lost a referendum. The 'solemn declaration' would become a political millstone forcing governments to resubmit the Constitution for ratification until it was passed; or, if it wasn’t passed, embarrassing them into agreeing to withdraw from the EU.

The weakness of these proposals is that such a solemn political declaration would have no legal force. The position of a member state which refused to ratify would be extremely strong. It would be in a position either to kill the whole Constitution or to insist on terms satisfactory to itself as regards its own future relationship with the EU as a condition of assenting to the repeal of the existing treaties of Rome and Maastricht so that the Constitution could come into force.

It is perhaps a reflection of the underlying realities that the draft Constitution now contains an Article (46) which explicitly permits voluntary withdrawal from the Union. This provides for the negotiation of arrangements for its withdrawal and for its future relationship with the Union. But if agreement on these issues cannot be reached, the Article as presently drafted provides that the country ceases to be a member of the EU two years after the date of its notification. The present draft has attracted criticism from ultra-federalists, who do not like the idea of any country being allowed to leave without permission.

The present EC and EU Treaties contain no withdrawal clauses, but in practice a state, particularly a state the size of the UK, could withdraw by arguing that the treaties are impliedly subject to denunciation or by breaking the treaties if necessary. Under the United Kingdom’s domestic law, Parliament retains the power to terminate EU membership by repealing the European Communities Act 1972, regardless of what any treaties may say. The danger with an explicit withdrawal clause is that it could in practice make it more difficult or even impossible for a country to withdraw by making its withdrawal subject to permission or conditions.

PAPER PREPARED FOR THE NINTH CONGRESS FOR DEMOCRACY

by LIONEL BELL, MEMBER OF THE CONGRESS FOR DEMOCRACY WORKING PARTY
ON THE CONVENTION ON THE FUTURE OF EUROPE AND THE PROPOSED EU CONSTITUTION

THE DEMOCRATIC IMPERATIVE

SUMMARY

It is the purpose of this document to show that there is - and cannot be - any true democracy in the European Union itself, as opposed to its member states.

Democracy works and is cherished because it recognises that the interests of individuals are of equal value; individuals accept that their own interests are on the whole best served by democratic procedures that rest on ultimate control by the people to which they belong, procedures based on open discussion in which they are free to participate. They are most likely to accept any consequent disregard of their own interests and views within a community whose history, language and values they share, what has been called a demos. The most extensive form of demos that has evolved is the nation, with its common loyalty, its own political discourse and its distinction from other such groups.

The EU came late to a recognition of its so-called democratic deficit and now seeks to use its resources to manufacture in the hearts and minds of its inhabitants a common consciousness that will overlay national self-awareness. The process is designed to get people to forget that they were conscripted into this political experiment rather than asked, that at elections they have no opportunity to install an alternative government, that the EU system has no place for a critical opposition seeking to expose governmental inadequacy and that it is virtually impossible to get any measure repealed however mistaken it is found to be. It is certainly not a programme to make good these deficiencies. Authority is steadily and irreversibly being leached away from the only bodies with any semblance of democratic legitimacy namely national governments. Europe is not a country and its inhabitants are not a community capable of sustaining democratic statehood.

THE DEMOCRATIC IMPERATIVE

Democracy in the European Union

It has become a truism that the European Union, in the absence of a demos, a European people, cannot function as a democracy. The cruel version of this insight is that if the Union applied to join itself it would be rejected on the grounds that its institutions were insufficiently democratic. What has also been observed is that a properly democratic system has never been achieved beyond the nation-state, nor is likely to be. Even otherwise supportive Liberal Democrats have commented that European statehood cannot be a reality unless citizens develop identities that go beyond nation-states; short of that it will be felt as an imposition on them.

The absence of democracy is regarded as a matter of concern, not least in the mouths of those in charge of the European enterprise. It is they who have spun us the sound-bite 'democratic deficit', which carries the twin implications that it can be made good and that they have ways of making it so. But if this is no more than lip-service the Union must stand accused of arrogant hypocrisy in demanding that applicants for membership should be able to point to their own democratic procedures, which it will then proceed to stultify under the weight of an anti-democratic regime.

The value of democracy - the worst possible system of government except for all the others - must be sought both in its foundations and in its results and, importantly, by discarding mistaken notions that have attached themselves to it. Only in this way might it be possible to appreciate why democracy should be valued and to form an objective judgment whether the EU and democracy can successfully cohabit.

The Foundation of Democracy

It is necessary to dig to find the fundamentals of any system by continually asking 'Why?' but in the end they can only be asserted - one cannot go on indefinitely asking why some proffered goal is a good thing. In the case of democracy one would naturally look for some form of equality in the members of an electorate, but equality in what? The assertion that, with very limited exceptions, the interests of individuals should be given no automatic preference over the interests of other individuals, that they should all be equally valued, appears to fit the bill. The question then is how democracy works to implement this principle and what difficulties have either to be overcome or borne as well as possible.

Of course the interests of individuals conflict. A democratic system permits the expression of individual interests and provides a variety of means for their determination. It helps to make it possible to live together in densely populated complex societies in which conflicts of interest abound. In appropriate circumstances such a system works because it is accepted and is accepted because it works. Acceptance by most individuals is dependent on their taking the view that by and large their interests are better served in this way than by any of the alternatives. That is why it is felt that the EU must be seen as democratic and thereby accepted if it is to survive.

The observation that a democratic form of government finds its justification by acknowledging the equal value of the interests of all of the governed, which leads them to acceptance, should not be misrepresented as encouraging a celebration of individual selfishness. Decisions reached democratically on the basis of much wider interests may well entail individual sacrifice. Altruism remains a human quality, not a denial of human nature. Of course government is about more than economic satisfaction, important as that is to those who try to persuade electors to put them into office. The interests of individuals range wider than consumption and a system that serves individuals' interests must be expected to reflect this.

On the other hand it does not follow that because all human beings possess interests of equivalent value consideration of the interests of others is an obligation of universal extent.

It will be seen that consideration for those who are closest comes most readily.

The Electorate as a Political Person

While head counting, or voting, is probably the most visible feature of a democratic community there is a particular misconception to which it gives rise. Individual electors make choices between alternatives and assert their interests in doing so. This electorate is then frequently spoken of as though it were a person, an individual elector exercising a judgment and making a choice. Such metaphorical shorthand is not an unreasonable way of describing a body of opinion among electors, for it does serve to highlight the important aspect of individuals having a sense of community if they are to work democratically together. One can sensibly speak in this way of the demos. But it should never be forgotten that it is no more than a metaphor for an aggregate of individual judgments.

One of the important features of electors - one that must be taken into account in developing and maintaining a democratic system - is that as a body they are as likely to get things wrong as anybody else. In some respects groups are more likely to get things wrong than the individuals that constitute them. We may well accept a majority judgment as the best available mechanism for dealing with an issue but should not delude ourselves that it somehow acquires a higher moral and intellectual standing than that of any individual. It should not be that delusion which enables people to yield to democratic decisions with good grace, however they describe it, but the consciousness that systems of this kind generally deliver fair treatment to all and therefore deserve the protection of all. In practice what happens is that people living in communities evolve systems for dealing with issues in the light of all the difficulties, systems in which head counting plays its part along with procedure and precedent. And their judgments will nevertheless be mistaken from time to time.

Opinions and their correction

It is certainly not the case that the equal value of interests means that the opinions of individuals are of equal value. They are not, but a democratic system but does not require their equality as a justification for its acceptance. Some expressed opinions are more worthwhile than others, but whether or not they will prevail in a count will always be uncertain. While election affords individuals an opportunity to assert their own interests in relation to all other interests, it does not follow that they have a sound understanding of their own interests. In other words a majority is quite likely to get things wrong, to find that in the event their conclusions clash hopelessly with the facts of life. Worthwhile judgments are those that are found not to clash with facts; even more worthwhile if they deliver the results that were sought.

This general ability to get things wrong is also true of elected representatives. If individual decision-making by individuals in pursuit of their own interests in the widest sense is generally limited to their choice of representatives, a proceeding which is pretty well universal in the developed world, it by no means follows that it will result in the application of a greater wisdom and lead to better judgments. When one considers how candidates aspiring to become representatives actually attain that status by working through a self-appointed party apparatus and one then goes on to consider the factors that make for electoral success, ie those that most beguile the electorate, it is difficult to conclude that election in itself confers a capacity for sound judgment.

What a representative body has to be and do is to represent the electorate by what is best described as standing in for them. This approach requires elected representatives to keep on using their own individual judgment and to ensure that while doing so they remain in touch with the attitudes and strands of opinion of those in their identifiable constituency.

Voting in single-member constituencies produces Parliaments capable of installing and supporting governments which are then difficult to remove. In the British tradition governments are responsible to Parliament, from which it follows that Parliament has two roles which it has constantly to balance because there is tension between them. On the one hand the executive needs to be able to rely on solid support if it is to be effective; on the other it is Parliament's task to hold the executive to account and to stop it from embarking on mistaken courses. Up to a point established procedures help to maintain the balance between these two roles but it must be acknowledged that in this country it is widely thought to have tipped too far in the direction of the executive. In the thirty years or so since it was identified the 'elective dictatorship' has not been weakened but strengthened.

Nevertheless the procedures which have evolved over a long period serve to moderate individual shortcomings and occasionally encourage representatives to kick against the whips. The practice of reasoned debate, the potential exposure of arguments to public view and the demands of at least some electors for accountability all encourage a tendency in a representative body to get things right rather than wrong. But just as it is a fallacy to regard the electorate as an individual of superior wisdom it would be wrong to elevate this tendency into a similar faith in such a body's wisdom, particularly when account is taken of party pressure.This collective will also get things wrong but public debate and accountability must remain the best safeguard that the people can expect to have.

Reversal and Repeal

Above all it should be recognised that it is an important precaution that representative bodies should be simply unable to entrench their own decisions, that is to make them irreversible. As long as a system of government is acknowledged to exist for the people it cannot itself fail to acknowledge the sovereignty of the people. In the present context what this means is that the right of the people as a body to make and impose a decision has to be accompanied by an exactly equivalent right to alter that decision. The sovereignty of the people in a democratic state is analogous to the freedom of individuals to exercise a choice and to take an opportunity to reverse it if one is available. No exercise of government should be able to deprive the people, generation by generation, of the freedom to decide their own future.

Thus one essential part of any reasonable system of government must be the capacity to revise earlier decisions and in a democratic system this capacity has to be made available to the electors. Nothing that has been done by them or in their name should be beyond the powers of an electorate to reverse, from which it follows that individual members of the electorate should never be deprived of the freedom to agitate their fellows for repeal. Their power to throw the rascals out is, perhaps, the most fundamental part of such systems when one takes into account that its mere existence is an effective moderator of governmental and Parliamentary behaviour.

The prospect of change is part of the stock in trade of opposition parties and nobody quibbles in principle at their undertaking to throw the incumbent's programmes into reverse. If a people determine on something they can hardly be imprisoned for it. Parliamentary sovereignty at Westminster, the doctrine that no Parliament can bind its successors, has hitherto been seen as providing a basis for that practice in this country, though doubts are beginning to emerge whether it continues to hold today. Westminster has chosen to export much of its authority by means of a statute that directly imposes in the UK legislation prepared abroad. It is not easy to believe that it fully understood what it was doing.

Freedoms

It is generally accepted that in addition to the vote individuals in a democracy have a number of related freedoms, which are themselves a reflection of the equal value of their interests. If elections are to be operated properly on that basis individuals (with very limited exceptions on such grounds as childhood and lunacy and with modest regulation to deter crank candidates) have to have the freedom to offer themselves for election as representatives, to join political parties that seek election, to create or found such parties and to express publicly their political views, including, as has been seen, attacks on the policies of those in power and a determination to reverse them. They must also be free from official repression and persecution on account of such political activity. Since this kind of repression if it occurs is likely to take a legal form it is the legal system that should offer the protection. In the UK it is available from provisions of more general application such as habeas corpus, presumption of innocence, jury trial and prohibition of double jeopardy. On democratic grounds alone any diminution of these freedoms should be viewed with the utmost suspicion.

On the other hand one freedom that has come to be seen as needing to be limited is that of bodies with excessive power, whether financial or governmental, to exercise influence on the electorate. It is rightly regarded as unreasonable for one set of views to be put before the electorate in such a way as to overwhelm other views. With the growing tendency in the UK to put some issues directly to the electorate by way of referendum provisions have rightly been made to extend the previous limitations on election expenditure and access to broadcasts so as to balance to some extent the two sides involved.

Demos and Democracy

To sum up the features of democracy are these: it must be possible to reverse a mistaken course whether in the election of representatives or in their legislative actions; representative systems operating with established procedures that demand the open and detailed examination of issues improve the chances of getting things right rather than wrong, though not necessarily by all that much; individuals should enjoy protection of a kind that will enable them to play a full part in the process; and there should be procedures to promote a reasonable balance between participants in political activity.

It is not difficult to work out the appropriate circumstances for the operation of democratic systems. The shorthand for them is the existence of a demos, a body of people within which individuals can play a real part and all can have some part, however small, to play. It must be possible for them to conduct a debate or to understand a debate conducted by others and to get into a regular habit of doing so. They need therefore to speak the same language, not just in a linguistic sense but in the sense of sharing political and moral ideas and attitudes. It frequently occurs that people find that they are not talking about the same things even when they have grown up and lived in the same community and have developed an equal facility with its language. Anybody who has attempted translation from one language to another will have encountered from time to time a great difficulty in rendering an idea faithfully in that process. 'Acquis communautaire' and 'subsidiarity' are examples that come to mind.The difference between continental coalition-building Parliaments and the UK's unEuropean adversarial system provides another illustration of the kinds of difficulty that confront a potential common political discourse. When the ideas under discussion are political, reflecting different histories, different governmental and legal practices, different public standards and different aspirations or fears the problems are compounded. The consequent absence of a common discourse, a common culture, a common consciousness, common concepts, values and attitudes means that there is no demos and there is no likelihood of one.

The common consciousness is particularly important. People need to recognise the other members of a community, a body politic. They need to have an automatic and sympathetic imagination about the circumstances of others, to be able to say 'There but for the grace of God'. It has been said that a nation is a body of people that sees itself as a nation and others as not belonging. This self-consciousness is associated with territory, with history, with language and with stability. While one might conceive of a demos that does not have absolutely all the attributes generally associated with nations the resemblances between them are great.

Hitherto a demos has been something that has evolved organically out of a combination of human nature, circumstances and events. Human beings have an evident tendency to form themselves into groups, together with an equally evident tendency to compete. Groups evolve, both by growing larger - or shrinking - and in perceiving themselves as motivated by the competitive hostility of other groups alongside them. To survive and flourish, to direct their competitive energies effectively against hostile external forces, groups have to contain internal competition, the damaging assertion of individual interests. Development has proceeded from families through tribes to nations, accompanied by widening group loyalty and common consciousness, spurred on in response to external threats. At the same time conflicts of interest within increasingly complex groups, formed because of the advantages they bring in developing the human qualities of knowledge and skill, as well as the economic benefit of greater and more diverse consumption, demand acceptable and predictable methods of resolution. That is how a demos comes into being and builds its characteristics of political discourse, loyalty to the community and distinction from other such groups.

That is just a simple account of matters that have doubtless been explored in much detail. at great length and with the benefit of extended research. All that is needed for present purposes is to identify the characteristics that must be present or brought into existence if the EU is to be taken down the path towards democracy as its promoters claim to be attempting. Why it was not attempted earlier is a reasonable question that has received little attention, but that may well be due to the difficulties that attend it.

Demos and Nations

It is easily seen that hitherto the demos has had no greater extension than that of a nation. Only within nations has the necessary solidarity existed. There have been empires that incorporated a number of nations but these have never constituted one demos with its abiding group loyalty and its attachment to procedures that both reflect the equally valued interests of individuals and enable them to play a proper part in their own government. The common culture in which these individuals are members quite naturally sustains their attachment to democratic political arrangements and their national sentiment both depends on and supports their political freedoms.

What has become noticeable across the world in recent decades is the growing number of nations that are being formed by fission from predecessor nations or reformed by discarding unsatisfactory unions. Nations are the most extensive groups that constitute demoi but they are themselves getting smaller. Existing unified nations are not necessarily acceptable to those whose loyalty is more limited in extent and who may even convince themselves that killing people is an appropriate way of saying that they are not prepared to be told what to do. Elsewhere separation may occur more peaceably but it seems that in many cases there is an attachment to older, smaller nations and it is that which is given precedence. What underlies this evolution is precisely that common consciousness which embraces some people, excludes others and is deeply rooted in human nature.

So that the auguries are not good for attempts to build states that extend beyond nations, if they are to be supported by genuine and thoroughgoing community feeling. Nationalism continues to get a bad Press from the bien pensants, except when it is directed against the UK. The superior people who see themselves as rising above the petty predilections of 'narrow nationalism' have a vision of ever bigger states as the destiny towards which all truly civilised and cultured people, such as themselves, must evolve. They thus assure themselves that they have found out what human beings are for and because they are unable to share ordinary group sentiments scorn them. This is what permits them to regard community feeling simply as something to be worked on in the manner that will be described below. In practice the ultimate vision, that of world government, would find itself faced by rebellions. If it was even brought into some half-existence it could survive only in the weak form of consensuality between independent states.

Democracy beyond the Nation

In order to consider in more detail whether the EU could be operated as a democracy in the sense outlined above it may be helpful to begin by looking more closely at the proposals developed by Brussels for making good the 'democratic deficit'. The Laeken Declaration, the foundational document of the Convention on the Future of Europe, rightly asserts that the Union needs to become more democratic, without adding 'if it can'. It identifies the process required as one of bringing the European institutions closer to the Union's citizens. This accords with the frequently expressed formulation that people see the EU as remote, thus pointing towards communication and sentiment as the direction for improvement. The underlying assessment is that the people have failed to appreciate the Union and it is they who must be changed.

This may explain, though it can hardly justify, the lapse of decades before the appearance in the EU of concern over democracy. Popular control of the process from the beginning might have aborted it altogether and was therefore avoided in favour of confining decisions to the peoples' superiors, the 'political class'. This was to treat the people as a subjugated nation, to deny recognition to them, a course which is likely to lead eventually to a reactive reassertion of nationalism. This is what the leaders of the EU are coming to appreciate. They brought the Union into existence and nurtured it with little regard for popular approval. They would quite naturally regard the predictable growth of resentment at the grass-roots as a vulgar failure to appreciate the grandeur of their own vision. Clearly there is a belief that now that the EU and its predecessors have been in existence for fifty years there are achievements to which popular attention can be directed. In practice the mantra 'Europe is a success story' seems to amount to no more than the observation that it has continued to exist when it might not have done, while the proclamation of the unexamined benefit of 'unity' appeals to nothing more profound than people's natural dislike of squabbles.

Laeken, as with all pronouncements by Brussels, pays no serious attention to what might have happened if there had been no EU and includes no suggestion that the Convention should consider alternatives to it. Yet it is precisely choice between alternatives that the peoples of the EU should have before them if they are to assert democratic control over their future, making good the acknowledged failing of the present system. The conclusion must be that this is not what is envisaged.

The benefit that is regularly presented and would be used as an inducement to electors, if they were ever given an opportunity to choose, is the prosperity that they have enjoyed. There should be no doubt that removing barriers to international trade has been responsible, at least in part, for it. But once again it was the growing prosperity that had been seen in the ten years of catch-up after the war that gave countries the confidence to reduce what were commonly, and wrongly, regarded as their economic defences. Nowadays the case that would have to be argued in public would be that the Single Market produces substantial added value beyond what is available on a most favoured nation basis through the World Trade Organization to which all the member states of the EU belong. There can be no certainty that this is capable of being demonstrated to electors.

Trusting the people is clearly not an option compared with changing them. The practical programme for doing this was outlined in the last decade in the White Paper on European Governance. This massive exercise in social engineering identified a number of ways of 'generating a sense of belonging to Europe'. The object is to induce everybody to love the EU and bring up their grandchildren to be superpatriots of the supernation, hostile to the true patriotism which has hitherto been the natural outcome of growing up in a self-aware national environment. Undoubtedly examples of valuable co-operation can be found among all the activities promoted and advertised by the EU but no reason to suppose that a European government is required before they can be put into practice. They are very much the kind of thing that the intergovernmental Council of Europe has promoted.

European Governance is not a programme to introduce democratic control but a sophisticated version of 'bread and circuses', a pre-emptive attempt to dissolve popular resentment at democracy's absence. The EU's citizens are to be beguiled to feel good about the Union. They are to see it prominently displayed in association with all kinds of activity which generally attract favourable regard and they are to be impressed by the vigour of its actions to ensure that supreme EU law is obeyed. The question whether the desirable outcomes might be obtained in the absence of a European government is never to be aired.But Brussels is surely mistaken in supposing that if people are drawn to gaze somewhat more warmly on the twelve stars they will thereby become fonder of each other. This will not be a community of fellow-feeling in which people will cheerfully accept sacrifices for the benefit of others, particularly when those sacrifices are imposed by yet others over whom there is no popular control and who take care to see that only minimal information is divulged about what is going on and is being planned inside the government machine. The provision of carefully doctored 'information' is not an exercise in accountability. This vital feature of democracy requires access to information they don't want you to have.

The national competition imposed within the EU by its own structure of national representation is conducted by manoeuvring and dealing to secure the elusive majority and enlivened by accusing opponents of being insufficiently communautaire. The object of it all is for Ministers to bring back goodies from the Brussels table. Since the only genuine democratic accountability is to nations and since governments justified the EU to their electorates on the basis of the rewards it offers the impetus behind this behaviour is not hard to find. There is thus an inevitable tendency to exploit the secrecy of the EU to conceal defeats, to blame other countries for them if they become apparent and to crow about coming home with victories. There are thought to be domestic votes in this process which make it inescapable, but it cuts right across any programme to get the peoples of the EU to love one another sufficiently to sustain the imposition on them of European government. If there were in fact a European demos this is precisely the kind of activity that would dissolve it.

But the manufacture of a European demos is a myth even before it starts. When one considers that each demos that now exists or has ever existed resulted from an extended process of evolution in response to events, the idea that people can be manipulated into one is evident fantasy. In a sense this is recognised by the failure of the EU even to consider how popular control and alternative governments could be achieved.

It is ironical that the masters of the EU who began by seeking to abolish the sovereignty of nation-states because of their alleged destructiveness are now found to have no better design to follow than that of a nation-state on a larger scale. They seek to hold it together with all the accoutrements of nation-states without having a nation for it to rest on. In a sense it is no surprise that the nation-state they are emulating, even unto their talk of the United States of Europe, is also the one they love to hate.

What they have failed to take account of is that even in the United States of America, despite its success, some divisions are beginning to appear with the growing number of monoglot Hispanics. The States that make up the Federation, on the other hand, provide no divisive sentiment against its existence such as exists in Europe. Those who crossed the Atlantic (other than from Africa) were volunteers for the melting pot, but today's 'EU citizens' are conscripts in a political experiment to make them immigrants into a virtual eurosphere. While being assured at the same time that they will not become any less British, German or French etc, a nostrum that was liberally applied to play down the fears that were expressed by ordinary people of loss of sovereignty. The only volunteers for joining the EU are the functionaries of Brussels.

The European Union and Anti-Democracy

To summarise a second time, democracy is not explained by people having opinions of equal value; it is not explained by an aggregate of expressions of opinion amounting to something more than the sum of their parts; representative democracy is not explained by representatives acquiring wisdom through election; democracy is explained by its acknowledgement of equally valued interests and it works because it does just that and thereby becomes a mechanism for dealing with conflicts of interests as long as it is operated in a manner generally regarded as reasonable.

The features of democracy, all of them dependent on the presence of a demos if they are to work, are thus vote-counting procedures with reasonable protection for minorities, accountability to voters, the ability to reverse decisions including the removal of governments, and open public argument about issues. Individuals must be able to play their part without fear of persecution.

We have seen that in the EU there is no demos and no prospect of one in the necessary sense. The continental practice of proportional representation and ever shifting - or permanent coalitions encourages the executive to diminish representative authority. The result in the EU is its electoral system of vast multi-member constituencies in which election is in the grasp of party apparatchiks in control of lists of candidates. The list system reflects a simple-minded attachment to the black/white categorization of political opinion as Left and Right, accompanied by the superior view that all the electorate deserves is an occasional choice between groups. It is tolerable in this instance only because the European Parliament itself has no power to appoint the government or direct its activities. It would be ludicrous to give it the serious responsibility of balancing a duty to check the executive and call it to account against the executive's need for steady support; it does nothing but the latter and is not designed for anything else. To give it more powers while there is no demos to which it could account would be just as intolerable as its method of election. Its button-pressing functionaries conduct no arguments that are worth anybody's while to report. The government consists essentially of an unelected and secretive Commission, possibly somewhat moderated by horse-trading Ministers, who are not themselves accountable for their activities because they are conducted in secret. It is well-nigh impossible to have legislation repealed, decisions reversed or corrupt practices abolished.

What we have got now in the EU is a system in which there are barriers against the reversal of decisions. The supremacy of the European Court of Justice, operating at times through subordinated national courts, adds judicial entrenchment to the rigidity imposed by the unanimity requirement of the Treaties. The Constitution of the EU that is now on the stocks in Brussels will entrench it all in concrete, building a Maginot Line against the assertion of national differences. Already the one veto that is alive and well permits any member state of the EU to block reform. And the government of the European Union, not having been appointed by the people, is immune to the threat of an alternative ready to take its place.

There is in fact no place for an opposition. Individuals can do virtually nothing to affect the course of the EU, unless they are lobbyists rather than electors.The only possible conclusion is that the EU is not a democracy, was never intended to be one, and can never become one whatever quasi-democratic trimmings it picks up to adorn itself. A demos consisting of individuals who had been beguiled and cozened into the belief that the institutions of the EU were a good thing - and that the best way for them to be ruled was by those institutions - would not be a demos of the kind needed to constitute a democracy. Such a demos would have to be developed through its own self-government by a symbiosis in which the demos and the procedures of its government grew up together. Historically this has occurred because the people of a country came to resist the exercise of power by autocrats, to see that their payment of taxes entitled them to a say on both expenditure and legislation. But Europe is not a country any more than is the Equator.

From the point of view of democratic credentials it is intergovernmentalism, which retains some shreds still of democratic legitimacy, that should be the survivor but that would mean a reversal of the trend and the abandonment of doctrines that are the bedrock of the Union as it exists today.

Clearly Brussels is pressing towards empire and since democracy cannot be built on the rubble of nation-states it is content to do without it. An ersatz version is good enough.The purpose of the EU is really to stake its leaders' claim to a leading role in the world, a world power fantasy that is inspired by a recollection of Europe's position at the beginning of the twentieth century, before the rivalries of its countries eroded it. The aftermath of that struggle was a search for recovery through communism and fascism. When these led to another bout of self-destruction the aftermath this second time has been the visionaries' construction of the European Union. There is little resistance to this pressure from national governments, themselves committed to competition with each other on the bumpy, sloping Brussels playing field. Such democratic credentials as they now have they seek to retain by their beady-eyed contest for relative benefits from this game, a process which we have seen runs quite contrary to the need to manufacture a eurodemos whose peoples will come to love one another by learning to love the Brussels institutions.

Why Democracy?

There is no a priori reason for systems of government to be democratic, that is to say no logical necessity for equally valued interests to be served by democracy.

The difficulty is that in the 21st century the people of developed countries have become accustomed to having some sort of say, in their nationally different ways, in their own government. That, after all, is why democracy is so regularly proclaimed as a goal of the EU as well as a hurdle for applicants. Democracy is what gives governments today the legitimacy that they need for their own survival. The fact that the EU has subscribed so publicly to a democratic goal which will be found in practice to be little more than a marketing exercise will only make matters worse. Cynicism about those who put themselves forward as political leaders has become steadily more widespread as they compete with each other in making promises that fail to be delivered. Not only is there no way in which the EU institutions can be placed in popular hands the policies of the eurozone are not delivering the prosperity that might have muffled discontent. It is only disquiet expressed at national level about immigration that is leading governments to search for methods of restriction. If the peoples of Europe continually find that they are unable to exercise any control, to assert themselves effectively in politics through their ballot boxes they will seek elsewhere for redress of their grievances. This is particularly the case over measures that appear to disadvantage them for the benefit of the people of other countries or for the sake of harmonization as an end in itself. The EU is in conflict with democracy and one day it will lose. The question is whether it can be induced into pre-emptive surrender by the prospect of rioting or will have to be forced into defeat at great cost to us all.

Back to Nations - Forward to Partnership

The solution to this problem is surely to return power and authority to the time-tested democratic institutions of the nation-states. It is truly difficult to see any major disadvantages in the overthrow of Jean Monnet's ambition to abolish them.As with people, the interests of nations both conflict and coincide, so that we need to work out ways of resolving the former and taking advantage of the latter. Such ways must command the continuing assent of people by continually having to seek it. It is not necessary to pretend that voluntary co-operation between nation-states in those matters in which it has demonstrable benefits will be a trouble-free alternative to all being instructed to do the same thing for the sake of sameness. It is mistrust of diversity and flexibility that has brought us to the position in which we find ourselves and the European enterprise needs to be re-invented in a form that acknowledges this, a form that permits nation-states to go only as far as they need to in joint handling of the transborder issues that overflow their territories but are not suitably addressed on a global scale. As integration proceeds it is increasingly perceived as oppressive, a perception that can only grow as it is widened to blanket more than two dozen countries.

Partnership is what is needed, to be applied wherever nation-states perceive a common interest, but only there. They can thus exploit their interdependence without having to be dependencies of a monolithic superstructure. There is no reason why the reform of the EU in this direction should not permit those countries that wish to retain the present binding arrangement to do so. They might then be regarded as a rearguard, rather than the advance guard they thought they were going to be. All the existing legislation and structure would be available for their use, though their governments should expect to have to justify that position on a continuing basis.

The partnership concept differs from that of a corporation, which is able to act as a unit on its own in external matters, though it would permit nations to come together for the purpose of acting jointly for particular purposes at particular times.

The question is how to get there from here. Just as the Union has been created by Treaties between sovereign states its reform must be carried out by Treaty amendment. The separation of the powers of three organs of government, that is the legislature, the executive and the judiciary has long been acknowledged as the mark of a constitutional democracy. Not only have all these national organs been treated by the Union as its agencies, it has been well observed that the Union's own structure confounds them. The executive in the shape of the Commission acts as a legislature by proposing all laws and as a judiciary by adjudicating competition cases and imposing fines. The Court, as we shall see, has acted both as a political initiator and a legislature in its drive for integration. The Council is both executive and legislator, while the Parliament marches hand in hand with the executive instead of acting as a check on it. The time has come to restore their independent status.