'Leaving the European Union, the United Kingdom is attempting to "take back" a control

The phrase ‘take back control’ has become synonymous with Brexit; a political event simply unparalleled in post-war British history. Yet behind this misleading simplistic phrase lies a much more nuanced, complex and (to a certain extent) unintelligible reality.

This essay will seek to explain this complex reality of where power and control really lie. Firstly, it will address several unresolved tensions in the question: is control by ‘states’ ‘-and their citizens’ the same thing? What should the level of control be (absolute or relative)? And should we prefer control exercised horizontally (at an EU level) or vertically (at national level)?

Secondly, these tensions will attempt to paint a nuanced picture (in graph form) of the Union. The essay will use this template to discuss where control really does and should reside.

Finally, the essay will argue against being solely concerned with metric of control -other (perhaps competing) concerns may be important too.

Space and a focus on ‘political structures’ precludes extensive discussion of the CJEU and its influential role in the development of the EU. Although of course there is no clear line between political and legal structures, and, an argument can certainly be run that the Union judiciary have historically held too much control over EU policymaking.

It would be wrong to completely equate member-states and their citizens when it comes to control over EU policymaking. The bicameral legislature, of Council and Parliament, reflects a compromise between a Union of nations and one of the people.1 Of course, in some circumstances both citizen and member-state control may be aligned. For example, after losing in the Council, the German Government was able to use its MEPs to defeat the 2001 Takeover Directive.2 The European Parliament thus served as a tool of both national and citizen control over policymaking. However, in other circumstances, the two may be at odds. Think, for example, about the rules on the composition of the Parliament. The use of degressive proportionality -Germany having 844,000 persons per MEP and Malta 69,000- prioritizes a degree of state control over policymaking above control by European citizens.3 Conversely, the doctrine of direct effect4 clearly prioritizes the interests of individuals above the nation-states of Europe -who argued against it.5

The right level of control is another tension that will greatly affect one’s perspective on the question. Certainty when it comes to democratic control over Union policy, it would be right to judge the EU “against existing advanced…democracies, rather than…ideal plebiscitary or parliamentary” ones.6 Executive agencies, law reform bodies and judges all play influential roles in western democracies -yet this does not mean people and states have ‘lost control’. Indeed, when put into perspective, it is not clear that Brexit will necessarily result in more control by ordinary citizens, who would still face an unelected Prime Minister, inequitable first-past-the-post system, and archaic House of Lords.7 This is before one gets to international bodies like EFTA and the World Trade Organization.

As Sypris states, “there are two dimensions to the quest to legitimize governance within the EU”, horizontal and vertical.8 ‘Take back control’ is aimed squarely at a complete vertical reallocation of powers and competences -repatriating them from Europe. But of course, since British accession in 1973, the horizontal balance of power has regularly shifted between different institutions and interests. This second dimension is often overlooked.

Let us consider the potential modes of EU governance according to the various normative perspectives on what, for the purposes of the question, control is, where it should reside and who should have it:

Therefore, whether the UK can be said to have lost ‘control’ is likely to depend upon a nuanced perspective on what control is, who should have it and so on.

The first few decades of the Union seemed to involve a clash between state interest as embodied by the Council and technocratic elite governance as embodied by the Commission. The former triumphing with the 1966 Luxemburg Accords, for example, and the latter through the CJEU.9 The direct involvement of the Parliament, national legislatures and citizens was marginalized. This was problematic; what little democracy there was, comprised “national executives reconstituting themselves as legislatures in the European arena”.10

However, within a few decades, this situation has improved markedly. Co-decision now makes up 89% of all legislation -which effectively gives the Parliament veto power.11 The Parliament often gets its way with legislative amendments, in contrast to some national legislatures.12 Additionally, the Parliament now “possesses [the] prerogatives of political control”:13 bringing down the Santer Commission in 1999,14 vetoing the initial Barroso Commission in 2004,15 and, more recently, extending a modicum of democracy to the Commission through the Spitzenkandidaten process.16 But the reallocation of powers over the last 33 years17 has not only been horizontal. More recently, “national Parliaments have…become actors in their own right in EU policymaking”.18 For example, the Lisbon Treaty’s Early Warning System allows national legislatures to object to Commission proposals if they believe it infringes the principle of subsidiarity.19 Whilst not having an absolute veto, use of the EWS puts political pressure on other institutions, increases scrutiny of the proposals,20 and, may “bolster political debate and contestation”.21 An area where national parliaments have been given a veto, is where the European Council proposes relaxing the decision-making type22 under the so-called ‘general passerelle’ procedure.23 Parliamentarization has increased citizen’s control over Union policymaking both horizontally (OLP) and vertically (EWS). Admittedly though, member-state governments have lost a degree of control over policymaking through a combination of the extension of the OLP, QMV and the simple fact that the number of member-states has increased.24 Although in the case of the extension of the OLP, this state control has been replaced by more democratic control which should be welcomed.25 Nevertheless, sensitive issues such as the Common Foreign and Security Policy remain subject to member-state control through unanimity in the Council.26 States also maintain influence though the European Council, which has mattered in the real “’history-making’ decisions” such as those on treaty reform.27

In addition to Parliamentarization, another welcome development of recent years has been the Union’s increased flexibility. The UK is a case in point, with high-profile opt outs on the Euro, Schengen, the legal supremacy of the Charter of Fundamental Rights, and, (for a while) the Social Chapter of the Maastricht Treaty.28 From 1999, some policymaking29 has been formed though a process of enhanced cooperation, where member-states pick-and-choose whether to participate in certain proposals. Increased flexibility has further increased control at the national level -allowing individual countries a choice between whether to cooperate on a specific issue or not.

There are several additional reasons as to why citizens and member-states have not lost control over Union policymaking as is often presented: Firstly, the unelected30 Commission is nowhere near as powerful as is often (sometimes grossly inaccurately) made out. The only powers it does have, have been conferred on it by the states and their citizens through either the Treaties or legislation. Much is made of its power of legislative impetus, yet it cannot amend or vote on legislation. The Law Commission proposes important legislation in this country yet it no one talks of having ‘lost control’ to this body. When one adds to this the fact that the Commission spends only 1.3% of Union GDP and has no coercive powers, it begins to look more like an influential civil service than a federal government.31 A second reason, often ignored rather than mischaracterized, is the ability of people to hold EU institutions to account indirectly. As Edward Heath argued, “ministers in the Council are accountable to their parliaments”, which are in turn accountable to the people.32 Many national parliaments could exercise a high degree of scrutiny over those who represent them in the Council, although many have, regrettably, not taken this opportunity.33 Referendums are a powerful way for citizens to exercise extrinsic control -Ireland’s concessions on the Lisbon Treaty being an example. In many areas, political reality means that EU institutions are more responsive to citizens than legal formality would suggest. Take, for example, how the Commission, a body with a fragile democratic mandate, is likely to respond in practice to pressure from a citizen’s initiative, use of the yellow card procedure, or a request for legislation from a far more legitimate Parliament. Finally, the EU is “among the most systematically counter-majoritarian political systems in the world”.34 Its qualified majorities, preference for consensus and comitology, many veto points, and, “elaborate system of checks and balances”,35 serve to ensure that ‘control’ is not as easily wrenched from the hands of states and their citizens as is often assumed.36

To think that ‘control’ over policymaking is the only metric by which to judge the EU and decide whether the UK should leave it is grossly simplistic. The Union’s initial raison d'être was to rebuild a continent devasted by nationalism and war. The economic interdependence, dialogue, shared institutions, checks on state sovereignty and constitutional protections the Union has brought, has meant that no major conflict has ever occurred within its borders -or is ever likely to.37 Whilst, admittedly, the Second World War is a long time ago, this metric of peace is still relevant today. The EU has expanded to incorporate past adversaries in the East, and now, expands to the Balkans, a region still reeling from conflict and ethnic cleansing. Additionally, the paradox is that by giving up a measure of formal control (sovereignty), member states and their citizens can gain effective control (power) in a way they could not do so alone. Dahl, talking about the Maastricht Treaty, makes this point well:38

“Maastricht presented [national] citizens and leaders…with a fundamental democratic dilemma: They could choose to preserve the authority of a smaller democratic political unit…even though some important matters might remain beyond the capacity of that government…Or they could choose to increase the capacity of a large political unit to deal more effectively with these matters, even if their ability to influence that [unit] were less”

Therefore, by ‘pooling sovereignty’, member states can achieve policy goals, a level of power and a range of benefits they could not otherwise have achieved.39 A loss sovereign control via (say) the extension of qualified majority voting in the Council, thus results from a rational cost-benefit analysis on the part of states.40 In a multipolar, interdependent and globalized world, where many issues have a cross-border dimension, “any government that thinks it can go it alone is wrong”.41

In conclusion, whether the UK and its citizens have ‘lost control’ over EU policymaking is likely to depend on one’s perspective of what ‘control’ is and where it should reside. Brexit clearly prioritizes a form of control that is ideal rather than realistic,42 non-technocratic, and most importantly, totally repatriated to the nation-state. Yet this view overlooks the nuances of a Union that is countermajoritarian,43 and, increasingly improved through parliamentarization, democratization and flexibility. Admittedly, over most EU policy, although not all, a degree of control has been lost. This is simply because there are MEPs and Ministers from another 27 countries to contend with. But this loss of control is far less than is often assumed: The Union is not an all-powerful, undemocratic bureaucracy. Moreover, we have consented to this loss of control through the Treaties because it is in our national interest. What level of formal control we give up, we more than make up for through greater effective control over the important issues we face. Control is but one metric on which to judge the EU -the fact we are part of a more peaceful, prosperous and powerful group because of it should not be lost sight of.

Legislation

Council Regulation (EU) 1259/2010 On implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L343/10.

Single European Act [1986] OJ L169/1.

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1.

Treaty of Maastricht on European Union [1992] OJ C191/1.

Treaty on European Union -PROTOCOLS- Protocol (No 2) on the application of the principles of subsidiarity and proportionality [2008] OJ C115/206.

Cases

Van Gend en Loos v Nederlandse Administratie der Belastingen Case 26/62 [1963] ECR 1.

Bibliography

Acosta, D., ’The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly (The Adoption of Directive 2008/115: the Returns Directive)?’, European Journal of Migration and Law 11(1) (2009) 19.

Ashiagbor, D., Countouris, N., and, Lianos I., The European Union after the Treaty of Lisbon (CUP, 2012).

Bellamy, R., & Kröger, S., ‘Domesticating the democratic deficit? The role of national parliaments and parties in the EU's system of governance’, Parliamentary Affairs, 67(2) (2012) 437.

Bellamy, R., ‘Democracy Without Democracy? Can the EU's Democratic 'Outputs' be Separated from the Democratic 'Inputs' Provided by Competitive Parties and Majority Rule?’, Journal of European Public Policy 17(1) (2010) 2.

Butt Phillips, A., ‘How democratic is the European Union?’ (The Conversation, 20th of May 2016). Available at: https://theconversation.com/how-democratic-is-the-european-union-59419 [Accessed 21st Dec. 2018].

‘Common Market Debate: Edward Heath v Michael Foot’ (Thames Television, 13th of May 1975).

Craig, P., ‘Brexit: A Drama in six acts’, European Law Review 41(4) (2016) 447.

Craig, P., and De Burka, G., EU Law (OUP, 6th Edition, 2015).

Craig, P., and De Burka, G., The Evolution of EU Law (OUP, 2011).

Dahl, R., ‘A democratic dilemma: system effectiveness versus citizen participation’ Political Science Quarterly 109(1) (1994) 23.

Dashwood, A., ‘The Relationship between the Member States and the European Union/European Community’, Common Market Law Review 41(2) (2004) 355.

Editorial comments, ‘Taking (the limits of) competence seriously', Common Market Law Review 37(6) (2000) 1301.

Edwards, G., and Pijpers, A., The Politics of European Union Treaty Reforms (Pinter, 1997).

Estella, A., The EU Principle of Subsidiarity and its Critique (OUP, 2002).

Fabbrini, S., ‘Transatlantic constitutionalism: comparing the United States and the European Union’, European Journal of Political Research 43(4) (2004) 547.

Follesdal, A., and Hix, S., ‘Why there is a democratic deficit in the EU: A response to Majone and Moravcsik’, Journal of Common Market Studies 44(3) (2006) 533.

Griller, S., and Ziller, J., The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer, 2008).

Hodson, D., and Peterson, J., The Institutions of the European Union (OUP, 4th edition, 2017).

Kaldor, M., Global Civil Society (CUP, 2001).

Keohane, R., ‘Ironies of sovereignty: the European Union and the United States’, Journal of Common Market Studies 40(4) (2002) 743.

Lord, C., ‘Still in Democratic Deficit’, Intereconomics 43(6) (2008) 316.

Majone, G., Regulating Europe (Routledge, 1996).

Mancini, F., ‘Europe: The Case for Statehood’, European Law Journal 4(1) (1998) 29.

Milward, A., The European Rescue of the Nation State (Routledge, 1992).

Moravcsik, A., ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’, Journal of Common Market Studies 40(4) (2002) 603.

Moravcsik, A., ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies 31(4) (1993) 473.

Nicolaïdis, K., ‘European Demoicracy and Its Crisis’, Journal of Common Market Studies 51(2) (2013): 351.

Stirn, B., Towards a European Public Law (OUP, 2017).

Syrpis, P., ‘Taking back control’ from Europe is not the democratic option’ (The Conversation, 14th of June 2016). Available at: https://theconversation.com/taking-back-control-from-europe-is-not-the-democratic-option-60665 [Accessed 14 Dec. 2018].

Syrpis, P., In Defence of Subsidiarity, Oxford Journal of Legal Studies 24(2) (2004) 323.

Wallace, H., Pollack, M., and Young, A., Policy-making in the EU (OUP, 7th edition, 2015).

Ward, I., A Critical Introduction to EU Law (CUP, 3rd Edition, 2009).

Westlake, M., and de Deus Pinheiro, J., The Commission and the Parliament: Partners and Rivals in the European Policy-Making Process (Butterworths, 1994).

Wille, A., ‘The politicization of the EU Commission: democratic control and the dynamics of executive selection’, International Review of Administrative Sciences 78(3) (2012) 383–402.

1Pech, L., ‘The Institutional Development of the EU Post Lisbon: A Case of Plus Ça Change?’, in Ashiagbor, D., Countouris, N., and, Lianos I., (eds) The European Union after the Treaty of Lisbon (CUP, 2012).

2Follesdal, A., and Hix, S., ‘Why there is a democratic deficit in the EU: A response to Majone and Moravcsik’, Journal of Common Market Studies 44(3) (2006) 533, 540.

3Hodson, D., and Peterson, J., The Institutions of the European Union (OUP, 4th edition, 2017).

4Albeit a legal creation.

5Van Gend en Loos v Nederlandse Administratie der Belastingen Case 26/62 [1963] ECR 1.

6Moravcsik, A., ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’, Journal of Common Market Studies 40(4) (2002) 603, 603, my emphasis.

7Syrpis, P., ‘Taking back control’ from Europe is not the democratic option’ (The Conversation, 14th of June 2016). Available at: https://theconversation.com/taking-back-control-from-europe-is-not-the-democratic-option-60665 [Accessed 14 Dec. 2018].

8Syrpis, P., In Defence of Subsidiarity, Oxford Journal of Legal Studies 24(2) (2004) 323, 325.

9Craig, P., and De Burka, G., The Evolution of EU Law (OUP, 2011).

10Weiler, J., ‘the Legitimacy and Democracy of Union Governance’, in Edwards, G., and Pijpers, A., (eds) The Politics of European Union Treaty Reforms (Pinter, 1997) 274.

11Hodson, D., and Peterson, J., The Institutions of the European Union (OUP, 4th edition, 2017) 150.

12Westlake, M., and de Deus Pinheiro, J., The Commission and the Parliament: Partners and Rivals in the European Policy-Making Process (Butterworths, 1994); Craig, P., and De Burka, G., The Evolution of EU Law (OUP, 2011).

13Stirn, B., Towards a European Public Law (OUP, 2017) 52.

14Under threat of motion of censure.

15Follesdal, A., and Hix, S., ‘Why there is a democratic deficit in the EU: A response to Majone and Moravcsik’, Journal of Common Market Studies 44(3) (2006) 533.

16Whereby lead candidates for Commission President as put forward by the competing parties in the European Parliamentary Elections; Pech, L., ‘The Institutional Development of the EU Post Lisbon: A Case of Plus Ça Change?’, in Ashiagbor, D., Countouris, N., and, Lianos I., (eds) The European Union after the Treaty of Lisbon (CUP, 2012).

17Since the Single European Act [1986] OJ L169/1.

18Bellamy, R., & Kröger, S., ‘Domesticating the democratic deficit? The role of national parliaments and parties in the EU's system of governance’, Parliamentary Affairs, 67(2) (2012) 437, 437.

19Treaty on European Union -PROTOCOLS- Protocol (No 2) on the application of the principles of subsidiarity and proportionality [2008] OJ C115/206.

20By forcing the Commission to release reasoned opinions, suggested treaty changes, proposal documents, consultative documents and others.

21Follesdal, A., and Hix, S., ‘Why there is a democratic deficit in the EU: A response to Majone and Moravcsik’, Journal of Common Market Studies 44(3) (2006) 533, 555.

22To the Ordinary Legislative Procedure, or, to Qualified Majority Voting in the Council.

23Pech, L., ‘The Institutional Development of the EU Post Lisbon: A Case of Plus Ça Change?’, in Ashiagbor, D., Countouris, N., and, Lianos I., (eds) The European Union after the Treaty of Lisbon (CUP, 2012).

24Craig and De Burka, EU Law (OUP, 6th Edition, 2015).

25Redressing the historic problem of the Union being a vehicle for executive control, see, Weiler, J., No. 10.

26Dashwood, A., ‘The Relationship between the Member States and the European Union/European Community’, Common Market Law Review 41(2) (2004) 355.

27Craig and De Burka, EU Law (OUP, 6th Edition, 2015) 40.

28Barnard, C., ‘The ‘Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’, in Griller, S., and Ziller, J., (eds) The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer, 2008).

29E.g. Council Regulation (EU) 1259/2010 On implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L343/10.

30Although perhaps indirectly elected is a better word, especially post-Spitzenkandidaten.

31Moravcsik, A., ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’, Journal of Common Market Studies 40(4) (2002) 603, 609-9.

32‘Common Market Debate: Edward Heath v Michael Foot’ (Thames Television, 13th of May 1975).

33Butt Phillips, A., ‘How democratic is the European Union?’ (The Conversation, 20th of May 2016). Available at: https://theconversation.com/how-democratic-is-the-european-union-59419 [Accessed 21st Dec. 2018].

34Bellamy, R., ‘Democracy Without Democracy? Can the EU's Democratic 'Outputs' be Separated from the Democratic 'Inputs' Provided by Competitive Parties and Majority Rule?’, Journal of European Public Policy 17(1) (2010) 2, 11. See also: Fabbrini, S., ‘Transatlantic constitutionalism: comparing the United States and the European Union’, European Journal of Political Research 43(4) (2004) 547.

35Follesdal, A., and Hix, S., ‘Why there is a democratic deficit in the EU: A response to Majone and Moravcsik’, Journal of Common Market Studies 44(3) (2006) 533, 540.

36Moravcsik, A., ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’, Journal of Common Market Studies 40(4) (2002) 603.

37Nicolaïdis, K., ‘European Demoicracy and Its Crisis’, Journal of Common Market Studies 51(2) (2013): 351; Keohane, R., ‘Ironies of sovereignty: the European Union and the United States’, Journal of Common Market Studies 40(4) (2002) 743; Ward, I., A Critical Introduction to EU Law (CUP, 3rd Edition, 2009).

38Dahl, R., ‘A democratic dilemma: system effectiveness versus citizen participation’ Political Science Quarterly 109(1) (1994) 23, 23-4.

39Milward, A., The European Rescue of the Nation State (Routledge, 1992).

40Moravcsik, A., ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist

Approach’, Journal of Common Market Studies 31(4) (1993) 473.

41Kaldor, M., Global Civil Society (CUP, 2001) 153.

42Insofar as it is premised on the nation-state being able to completely control its own destiny in today’s world.

43With elaborate checks-and-balances, qualified majorities and preference for consensus.

8Syrpis, P., In Defence of Subsidiarity, Oxford Journal of Legal Studies 24(2) (2004) 323, 325.