Rebutting Richard Aikens

Richard Aikens argued in his UCL lecture of Feb 22nd that the EU cannot succeed because it will become a federal state that most of its citizens do not want. In his lecture, he makes a number of assumptions and, in my view, latches on to several misconceptions.

The text of his lecture is below, with my comments plastered on in red:

I start by asking some questions about what YOU and other citizens of member states of the EU want from it. FIRST QUESTION: Do you want a Federal state?

The vast majority of EU citizens answer NO. This is perhaps not surprising when the latest version of EuroBarometer (autumn 2017) run by the European Commission records that 59% of UK citizens distrust the EU; 56% of French citizens also as do 52% of Italian citizens and even 42% of German citizens do so. And overall 50% of European citizens say that their voice does not count at the European level.

Sure. There have always been a wide variety of views about how Europe should be organised, from federalists (with a range of ideas as to what that actually means) to De Gaulle’s concept of l’Europe des patries, a Europe of sovereign states.

But in reality the EU’s field of competence and the powers of its institutions are set out in treaties and can only be increased with the agreement of every Member State. As a member, Britain can veto any such increases. In its domestic legislation, it even had a provision prohibiting further increases unless approved in a referendum. Integration only happens where Member States want it to (normally in relation to issues that they can’t deal with as effectively by themselves). Fears that it can become more powerful or more centralised, against the will of member countries, are unfounded.

BUT the preamble of the TEU [Treaty of the European Union] states its objective as being: “European integration”; Article 3 sets out the EU’s aims of which perhaps the most important is: an economic and monetary union, whose currency is the Euro – from the last of which the UK obtained a derogation in 1992. Realistically the UK never was and never would be a part of that union.

Article 3 actually devotes more space to the internal market, something that Britain has always supported and which is by far the most significant feature of the EU. The EU is also the framework in which we cooperate on research, development, environment, external trade, cross-border law enforcement and much else, often very practically. Monetary union, for those countries that want to share a common currency, is not the be all and end all of the EU, and the UK anyway is not part of that and has no obligation to join it.

Those two matters: “European integration” and “economic and monetary union” are what constitute the bases of the “European project” that we hear so much about from politicians and others.

In essence they are two sides of the same coin: political and economic integration; or bluntly: a federal Europe. Either that or the phrase “Ever closer union among the peoples of Europe” is meaningless.

If you read the whole sentence in the treaty, it says “Ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity” (the principle laid down in the treaty that the Union “shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States”). The Treaty also lays down the principle of conferral, namely that “the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”

And where the Union is empowered to legislate, the approval of the Council of Ministers is necessary. The Council is composed of national ministers, who are members of national governments, accountable to national parliaments. Not people who are by inclination predisposed to pooling powers at European level unless there is a strong case to do so.

Hence it is inevitable that I ask the first question: do you want to be a part of a ”Federal Europe”?


Well, you don’t need to worry then. A federal Europe cannot be achieved by stealth. Any increase in the EU’s powers requires not just a majority of the European electorate, but the grand slam of every Member State approving the relevant treaty changes.

NEXT QUESTION: who has ever asked the “peoples of Europe” if they want to be a part of a Federal Europe? Or on what terms?

Answer: no one.

One could imagine a Europe wide referendum on setting up a Federal State: and, if the answer is positive, then the creation of a truly Federal Parliament and government; with an economic and monetary policy to match.

It won’t happen. It is quite clear that the peoples of France, Germany, Italy, the Netherlands, Denmark, Sweden, Spain and Greece – at the least – don’t want that.

AND apart from anything else: I understand that being a part of a larger federal union would be contrary to the German constitution; there would have to be a vote to enable a change to be made. A good friend of mine, a German professor of law, assures me that, in her opinion, (and she is much younger than me), Germany would be unlikely to vote for that.

So, if your conclusion is that it’s not going to happen, why are you fretting about it?

So I come to my THIRD QUESTION: what are we therefore left with by the current arrangements as set out in the TEU and TFEU [Treaty on the Functioning of the EU]? DO I WANT TO BE A PARTY TO THAT AND IF SO WHY NOT?

The EU is not a state, but it acts as a state does: it has legal personality, at least so far as the parties to the Treaties are concerned: Art 47 TEU.

As do many international organisations. It means having certain privileges and obligations, such as having the ability to enter into contracts, to sue, and to be sued.

It has all the apparatus of a state: it has a parliament; it has an executive in the form of the Commission and it has a constitutional court – the ECJ.

As its members are States, and they are exercising some of their powers jointly, it is not surprising that it has some features that go with exercising public authority and being accountable for such actions, including judicial review to ensure it acts legally.

Even though the project for a “constitution” of the EU was rejected in 2005 and the Treaty of Lisbon substituted for it, the effect of those the TEU and the TFEU together was to create a “constitution”. And in today’s Times (22 February 2018), the distinguished constitutional lawyer Prof Vernon Bogdanor refers to “the Constitution of the European Union”. So the EU has a constitution in all but name.

The EU treaties are indeed sometimes described as a constitution in that they set out the field of competence of the EU and the powers of its institutions. Golf clubs also have constitutions. There is nothing inherently wrong with having a founding document that sets out what an organisation can and can’t do.

So: the EU acts as a state.

Art 10 of the TEU asserts that “the functioning of the Union shall be founded on representative democracy” and its citizens are to be “directly represented at Union level in the European Parliament”.

The fundamental problem with the EU as it is presently constituted is that whatever its functioning may be said to be “founded upon” it does NOT IN FACT function as a representative democracy as we know it.

It is composed of 28 democracies that have built democratic safeguards into its structure: a Council composed of democratic national governments and a directly elected Parliament, with members of all the other bodies appointed by the former or both.

Of course, as Cardozo J famously said in Louks v Standard Oil in 1921: “we are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home”. The EU does not have to replicate the British model or the French one or German one. But, to my mind, if it is to have legitimacy, it does have to come near to being democratic.


First: the “competences” of the EU are very wide indeed, particularly if you include those that are “shared” with the Member states, who are only allowed to use that competence to the extent that the EU does not: Arts 2, 3 and 4 of the TFEU. (Shared competences include social policy and “economic, social and territorial cohesion”).

See previous comment above.

WHO DECIDES WHEN THE EU HAS TAKEN OVER A SHARED COMPETENCE in contravention of the principle of “subsidiarity” – or leaving things to Member States? The answer is tucked away in a Protocol to TFEU. It is the Council or the EU Parliament: but in a dispute “subsidiarity” only wins if there is a majority of 55% of the Council or a majority of votes in the EU Parliament.

But the EU can only legislate if, as I said above, there is approval from national ministers in the Council. A qualified majority representing the high threshold of at least 65% of the population is required to approve anything. For key questions, unanimity is required, not least for those things that are sensitive from a national sovereignty point of view, such as foreign policy and security issues or raising EU spending beyond the current ceiling.

What turkeys are going to vote for Christmas?

Indeed, why would national ministers agree by a large majority to transfer powers to the EU level?

I CANNOT HELP recalling that evocative phrase of Lord Denning in 1974 in the early EU law case of Bulmer v Bollinger when he described the effect of the Treaty of Rome: “the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back”. The competences of the EU cannot be held back; they will override those of the Member States.

Secondly, within those competences, the EU can and does legislate so as to affect the rights, not just of states, but of individuals and companies.

Yes, of course. There is not much point on agreeing, for instance, common rules for the common market on consumer protection if individual companies can opt out of them.

All in all, some 12% of legislation applicable in the UK adopted over the last few years is EU legislation. Having common rules with our neighbours on issues that cross borders in their impact is sensible.

The most obvious is the European Charter of Fundamental Rights.

As Professor Vernon Bogdanor put it in his article in today’s Times, “since 2009 the EU Constitutionhas included the Charter”. Note the word “Constitution”: not an idle slip of the pen I think. The ECJ has decreed, since the 1960s, that the treaties and all EU legislative acts have “direct effect” on individuals and they can be enforced by them. The UK discovered, from the Factortame litigation in the 1990s, if not before, that the ECJ regards all domestic laws of Member States to be subordinate to the Treaties and the views of the ECJ are final.

In the Benkharbouchecase in the Supreme Court in 2017, the UK Supreme Court held that the effect of Art 47 of the Charter is that if a domestic Act of Parliament is incompatible with one of the rights set out in the Charter, then, in the inelegant phrase of Lord Sumption, that Act must be “disapplied”.

The UK Parliament is, indeed, no longer sovereign.

The German Constitutional Court may challenge those views one day, as it threatened in 2015 in the Gauweilercase about the powers of the ECB [European Central Bank], but that has not happened yet.

The EU Charter of Rights is applies to the EU institutions and not to Member States, except when the latter are implementing EU law (see Art 51 of the Charter). It explicitly “does not extend the field of application of EU law”. It is drawn from the “constitutional provisions and international obligations common to the Member States” (Preamble of the Charter).

In other words, it is intended to ensure that the EU institutions and EU law respects the same obligations that Member countries have already bound themselves to respect. It is a limitation of EU powers to make sure the EU institutions and EU law do not, by the back door, circumvent what the Member States intended.

Thirdly, how are European Union legislative acts brought about? This is the crux of my problem with the EU: The method is enshrined in Art 17 of the TEU, It is the European Commission which shall promote the general interests of the Union; it is the Commission that will exercise “co-ordinating, executive and management functions, as laid down in the Treaties”. THE KEY PHRASE is in ART 17(2). It is that “UNION legislative acts may only be adopted on the basis of a Commission proposal except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide”.

So it is the Commission that takes initiatives to promote the general interests of the Union; it is the Commission that MUST propose anything that becomes a Union legislative act.

Yes, the Commission makes the first draft. National Ministers in the Council (and the MEPs in the European Parliament) can request it to do so. They can amend its proposals. Nothing the Commission proposes to them gets into law without their approval.

The idea of starting work from a draft prepared by a common institution (composed of a member from each country), rather than having competing national proposals, is not unreasonable, given that they do not decide, only propose.

THE COMMISSION IS effectively the government of the EU because that is where policy originates; it is where EU legislation originates.

If it is a government, then it’s a pretty weak one! It cannot command a majority in Parliament or in the Council, the elected bodies that decide.

THAT body and its policies and its initiatives have NOT been democratically chosen. Nor has its President.

By Art 17 of the TEU, the President of the Commission is selected by the European Council. The European Council has to “take into account” the elections to the European Parliament and hold “appropriate consultations” but it then proposes to the Parliament its candidate “by a qualified majority”. The Parliament can reject the candidate, but then the same process is repeated.

The President is indeed put forward by the European Council (the elected Prime Ministers/Presidents) and has to secure a vote confidence from the elected Parliament. The UK Prime minister is appointed by the unelected Head of State without a confirmatory vote in Parliament. In practice, having the confidence of a majority in the elected parliament is the democratic necessity, in both cases.

The Council (of member states’ representative ministers) proposes the Commissioners in conjunction with the President-elect.

So each country’s Prime Minister, just as he/she chooses ministers to his/her government, chooses the country’s member of the Commission. The designated Commissioner then has to go through a public hearing in front of the relevant European parliamentary committee (unlike ministers domestically in most countries) before the Commission is confirmed by a parliamentary vote. That vote also follows a presentation of the Commission’s programme to Parliament, negotiated to ensure the backing of a parliamentary majority.

So those that decide EU policy are NOT elected. They can only be got rid of by dismissal of the WHOLE Commission, pursuant to Art 17(8); otherwise the Commission and its President have 5 years in office.

No different to what happens at national level. The government is there for 5 years unless dismissed early by a vote of no confidence.

Their subordinates, the civil servants who make up the European Commission are, of course, not elected.

Indeed: civil servants are not elected anywhere.

That is my biggest difficulty with the EU.

Really? That civil servants aren’t elected?

To summarise:

Its competences are very wide ranging.

They are defined by the Member States and limited to what they all agree.

It directly affects the lives of all of us.

Yes, what would be the point of 28 countries acting jointly to no effect?

Yet those that decide the policy, the Commission and its President, are not elected.

Wrong, as explained above.

Compare it with, say, the French system: the President is directly elected on a platform of proposals; he can implement proposals those through the Assemblée Nationale and the Sénat or, to a limited extent, by presidential decree. He is elected every 4 years – no ladies yet!

The French President is elected every 5 years, and women not ladies, (but I guess detail is not your strong point!)

Or the German system: the chancellor is nominated by the President of the Federal Republic from the party that has the largest number of votes in the general election and the Bundestag confirms that. She then has to get together a government and a after thrashing out a joint programme based, effectively, on who has won what seats on what policies in the general election.

Sounds remarkably similar to what happens at EU level: the Commission President is nominated on the basis of the largest party. A programme is thrashed out in view of obtaining a parliamentary majority, based, effectively, on who has won what seats on what policies.

BUT – you riposte – the European Parliament has a control over legislation.

I disagree:

It is all governed by Art 294 of the TFEU.

First, it is the Commission that proposes e.g. a regulation to the Parliament and the Council – i.e. the representative ministers, not the heads of government/state who compose the European council. Secondly, that proposal goes to a first reading in the Parliament. If all is well, it goes through. So that is the Commission’s policy; not one resulting from a programme of elected representatives or an elected government.

There can be disagreements: and the Parliament can reject proposals: but it cannot initiate them.

This is what has rightly been called “the democratic deficit” of the EU: to my mind it fundamentally undermines the legitimacy of the EU as an institution that so affects our lives.

To repeat: Parliament (Art 225 TFEU) and the Council (Art 241 TFEU) can request the Commission to bring forward proposals. Such proposals are first drafts and are invariably amended before adoption by the elected representatives. Both elected bodies need to agree for anything to become law. There is a high threshold for adopting any proposal: a majority in the Parliament and a qualified majority in the Council.

On top of that, all legislative proposals from the Commission have to be sent to national parliaments for prior scrutiny before the Council takes a position on them. Those national parliaments can, if they organise themselves well, effectively mandate their minister before he/she sets off to Brussels (as the Nordic parliaments do, but the UK parliament doesn’t).

Are those objections enough to pull the house down so to speak?

I would say that it depends on whether you think that democracy should be at the basis of government. I do. To put it in dramatic terms: I am not prepared to sell my birthright to democratic government for a mess of EU potage.

Nice rhetorical flourishes don’t offer any evidence or prove any point. The fact is that if you are going to act internationally (and, let’s face it, there are many subjects which cannot be effectively dealt with by national action alone), the EU has more procedures for transparency and accountability than any other international organisation that the UK belongs to.

I come back to Professor Bogdanor’s article to show to you the far reaching effect of the current arrangements.

The European Charter goes a lot further than the ECHR. For example it creates a right “to engage in work”: Art 15; a right to “conduct a business” Art 16; a right of workers to “information and consultation in good time” Art 27; that every family shall “enjoy legal, economic and social protection” (tout court): Art 33; and a right to an effective remedy and a fair trial: Art 47. If any Act of a domestic Parliament is contrary to any of those rights (as interpreted, finally, by the ECJ) then, according to the Supreme Court decision in the Benkharbouche case, the domestic law is struck down. Parliament is not supreme.

Who has decreed that the UK should give up parliamentary sovereignty not just on the rights of fishermen (Factortame) or other esoteric taxation or economic issues (when VAT is applicable or not), but on rights that are so wide-ranging?

‘Who has “decreed” it?’, you ask. Our elected sovereign parliament, actually. In ratifying the relevant treaties, it voluntarily agreed to pooling sovereignty in limited fields. Not handing over sovereignty to someone else, but exercising it jointly through institutions in which Britain participates.

Vernon Bogdanor says that the effect of Brexit will mean that “our rights will be dependent on a sovereign parliament” instead of the decision of judges, either in the UK or in Luxembourg.

Personally, I would rather that ultimate decisions are made in democratically elected parliament, rather than in the courts. That is my view of the world: I trust democracy; but I fear that the European Union does not.

Legislation is adopted by elected legislatures. Courts settle arguments about what that legislation means. As a British President of the ECJ said, “we don’t take political decisions, but we sometimes have to remind politicians of the decisions they have taken”.

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