VERBATIM REPORT OF SPEECH BY PROFESSOR TREVOR HARTLEY 
Professor of Law, London School of Economics 
and member of the Congress for Democracy's Constitutional Sub-Committee

TO THE FIFTH CONGRESS FOR DEMOCRACY, 2 February 2001

At the Fourth Congress last year it was agreed that a Declaration would be drawn up for consideration this year and we have been working on this Declaration and this piece of paper which you all have is the product of our work. I will just try to explain to you the thinking behind it, which I hope you will agree with.

Obviously we are concerned with democracy, so we start off by talking about democracy, which we think is one of the greatest achievements of the peoples of Europe, particularly the people of Britain, but also of other European countries. We say something about what we think true democracy is.

Democracy involves representative institutions which are genuinely responsive to the will of the people of the country. We think it is important that democracy should be more than simply a façade. You will all know that in the communist regimes of eastern Europe they had parliaments, they had elections, but that really was just a sham. It was not a genuine democracy at all. Obviously the European Parliament is different; I am not suggesting it is the same as the communist regimes, but we still think that it is really rather a façade. It is not a true democracy. It is true that there are elections every five years and they are multi-party and a very large number of parties exist which contest those elections. But we still feel that the final product is not real democracy.

One of the problems we have with the European Union is that it is acquiring more and more powers every year. All kinds of areas are controlled either wholly or partly by the EU. All sorts of things that companies might want to do, that governments might want to do, cannot be done because there is an EC Directive or there is a regulation or the Commission does not agree or the Court will not like it. So they control our lives to a great extent, these people in Brussels and Luxembourg. In a democracy the people ought to control them, and that does not really happen.

We are not, of course, against international co-operation, but we feel that what happens in the EU has gone beyond that. It has created some sort of autonomous entity up there which has great power and is really not at all responsive to what the people think. In those big buildings in Brussels they are not interested in what the people of Europe think. They are interested just in what this Minister will say, what the Commission will say and what DG so-and-so thinks and it really has got out of control. The EU is to a large extent getting beyond the control of the national parliaments and we think the European Parliament is not a substitute. Some people say, well even many of the strongest supporters of European federalism admit there is a problem and they use this phrase "democratic deficit". They say this problem can be solved very easily by giving more power to the European Parliament and then everything will be fine, you will have democracy. We do not agree with that and we have two kinds of objections.

The first objection is that if you are going to give complete power to the European Parliament you really then have a federal European state, a new state. Most people - certainly in Britain and we believe in many other European countries as well - simply do not want that. They do not want a European state. And there is another problem: if you have a European Parliament the delegates from each country would be swamped by those from the other countries. So that even if the people of Britain - or the people of Denmark, or the people of Sweden - had some strong feelings about something, and all their MEPs believed in it, they would easily be swamped by all the other ones.

The problem about Europe is that it is not really one nation. It is fifteen nations. We think that each people should have its own parliament, its own representative institutions, which can somehow give expression to the values and attitudes of that people. The European Parliament will never do that because, as the European Treaties themselves admit, Europe is made up of many different peoples. There is not one single European nation, one single European people.

So that is really what we are trying to say in this Declaration, that is our objection from the democratic point of view to the European Union. We feel at the present time it is not democratic because nobody really controls those bureaucrats in Europe and we do not think the matter can be put right by giving more power to the European Parliament. We feel the European Parliament does not in practice allow the peoples of Europe to control or influence what happens in Brussels and Luxembourg.

To get a little bit more concrete, the six points at the end of the Declaration are things which we feel particularly strongly about.

Point 1 - You will see the first point concerns the limits of Community jurisdiction. The idea of a European Union is that the Union has certain powers and the Member States have certain powers.

The problem is, where is the boundary? The boundary is supposed to be in the Treaties but who decides what the Treaties mean? You all know that the answer is the European Court. But the European Court is part of the European Union. It is one of the institutions of the European Union. So the Member States got together, gave certain powers to the Union, kept certain powers for themselves and then the Union has taken upon itself to interpret those Treaties and decide what powers they have and what powers we have.

I might tell you that the European Court does not really care very much about the words of a Treaty. It does not look to the words. Its view is: "Those are the words and we do not want to take a literal interpretation of this. We want to go by the spirit of it and decide what is good for Europe." And you can guess what they think is good for Europe: more power. More power for themselves, the European Court, and more power for the Commission as well. So we are saying that the limits of Community jurisdiction should not be determined by the Community itself.

I heard a talk by a Judge from the German Constitutional Court, Judge Kirchhof, and he made exactly the same point. He said, "If you own some land or a house and you lease part of it to somebody, it is not fair if the tenant has the power to interpret the lease unilaterally and decide exactly what its terms mean." That in a way is what is happening with the European Union. The Member States have given certain powers to the EU and the EU has said it wants to be able to interpret those powers. That is the idea of the first item.

Point 2 says that if additional powers are given the electorate should have a say in that by means of a referendum or other suitable means. It should not be sufficient for the government to sign away more powers.

Point 3 is concerned with the Charter of Fundamental Rights agreed in Nice and we say we are not happy with that. We are unhappy with it even if it is not binding and if it were to become binding it would be even worse. You might say, "What's wrong with fundamental rights? Don't we all want lots of rights?" The problem is, who interprets those rights? Again, it will be the European Court, and they will interpret them in accordance with their policy of furthering European integration. They will simply use that as another weapon to change the law of the Member States.

Point 4 - The Common Law of England of Wales and also separate Common Law of Scotland has existed for centuries and we think it is good and we want to retain it. There is a plan - which might take a long time to get anywhere, but still it is really being mooted - to replace Common Law with a continental-style code which would be uniform throughout the EU. Obviously it would be based mainly on French and German ideas. If it came about it would not only be the end of Common Law but probably the end of jury trials as well.

Point 5 - We think reforms in various areas - social, economic, environmental - are best decided by the national parliaments, local government and other institutions within each country rather than having Brussels laying down rules for us.

Point 6 - Likewise we think fundamental policy matters like tax, defence, etc should be kept with the Member States. This could involve taking back certain things from Europe which they already have.

That is the thinking behind this Declaration and I hope people will want to debate it.

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