The chancelleries of Europe devise a government
Which of the world’s great democracies have been created by diplomats?
The foreign offices of Europe create a government
The government of the European Union has emerged from successive diplomatic negotiations rather than from constitutional conventions, or by piecemeal adaptation of pre-existing inter-governmental institutions. The powers and jurisdictions of its various institutions and their relationships with one another have been defined by treaties. They can only be changed in any significant way by another treaty.
Diplomatic negotiations have certain characteristics which distinguish them from the meetings, assemblies and debates which might be expected to precede the creation of democratic governmental institutions. They are conducted in secrecy until their conclusion, not infrequently involving some deceit, and no wider or popular participation can influence the course of negotiations. Because they are conducted in secret without minutes for subsequent publication, the national representatives who participate in them become de facto plenipotentiaries. They emerge to provide their own inevitably self-serving interpretations of the concessions made and the rival interests satisfied, which none of those they claim represent can contest. They are only held accountable by the results, by the terms of the treaty they have negotiated. They can, however, interpret these rather freely, and limit further debate since a treaty is a fait accompli, which cannot be amended. They must either be ratified or rejected.
For the most part, the successive treaties that have created the EU’s governmental institutions have been ratified by parliamentary rather than popular votes. As a result, they have received a democratic mandate which complies with the formal practice of most member governments, in regard to the ratification of treaties which define future relationships with foreign powers. These EU treaties are, however, rather different since they are negotiating fundamental changes to their own form of government, limiting the sovereignty of their own parliament by creating institutions that may override it or assume functions which it previously performed. These treaties thereby permanently disenfranchise their own electorates in certain respects, since they subject them to a supranational government which they are effectively powerless to change. This kind of treaty would seem to deserve something more than ratification by a whipped parliamentary elite if democracy is to mean more than periodic elections.
A few member states recognize that fact, and have not allowed these EU treaties to be ratified by parliamentary votes alone, and have required them to have a wider popular and fully democratic ratification. This has on occasion brought this method of creating government institutions by diplomatic negotiations to a halt. After two such occasions, when the Danes voted no to the euro in September 2000 and when the Irish initially voted against the Nice Treaty in June 2001, in the face of steadily declining turnout in European elections, the EU heads of government seemed to recognize that something was wrong with the institutions they had created. At Laeken in 2001, they formally declared that European institutions ‘must be brought closer to the citizens’ and proposed a Convention on the Future of Europe, consisting of ministers and representatives of national parliaments who would ‘define the powers of the Union and member states’ and ‘create more democracy, transparency and efficiency’.
Launching a democracy
In the event, the Convention took upon itself to write a European Constitution, which gave the Union its own legal personality, redefined and reinforced the provisions of previous treaties, increased the powers of the Commission in a number of ways and emphasized the primacy of Union law over that of the member states. They also incorporated a Charter of Fundamental Rights, and declined to return any powers to member states.
In October 2002, this Convention produced a draft constitution though, according to one observer, ‘it was never clear where it came from or who had drafted it.’ Given its title, ambition and scope, many member states decided that this could not be ratified as just another EU treaty. There was therefore the prospect of a Union-wide test of the democratic legitimacy not simply of the proposed constitution, but also, since it incorporated past treaties, a retrospective test of the institutions which had been created by diplomatic negotiations over the preceding thirty years or more. In February 2005, a referendum in Spain accepted it, but in May it was decisively rejected by the people of France and in June by the Dutch. In the UK the Blair government then cancelled the proposed referendum.
Reverting to the method they trust
This setback prompted a long ‘period of reflection’, after which, guided by a nominated ‘wise group of politicians and officials’ consisting of past members of the EU elite, European leaders decided to repackage the substance of the constitution as a treaty, and thereby avoid any more referendums about its substance. The British Prime minister, Tony Blair, welcomed this subterfuge and argued that, since it was now called a treaty, there would be no need for a referendum in the UK. The constitution duly appeared as the Treaty of Lisbon and was ratified by the UK parliament in 2008.
The Treaty of Lisbon definitively demonstrates that diplomatic negotiations, the treaties which conclude them and the parliamentary processes which ratify them, provide European political elites with an alternative means of constructing and developing governmental institutions for the people of Europe without their participation in the process. The failed attempt to ratify the constitution electorally is a landmark. However, the Union will continue to develop, amend and extend its governmental institutions by diplomatic negotiations and treaties for the foreseeable future, avoiding the participation of the people whenever it is able to do so.
A number of contemporary polities mimic democratic forms of government, and the EU has cleverly defined its own imitation by adapting traditional methods of conducting relationships between states, defining a relationship between this new state and its citizens while endeavouring to replace in many respects the authentic democracies of its member states. It is a tour de force that never confronts democratic principles, and circumvents them whenever it can. Democratic states are defined less by force of arms or treaties than by a daily tacit plebiscite of their citizens who accept the authority it exercises over them. The authority of this new EU state has, by contrast, been defined over generations by diplomatic elites who claim to speak in the name of their own people, but have been reluctant to ask them to confirm what they have done in their name.
The European Union’s governmental institutions are necessarily far removed from its citizens, its activities are conducted in a language foreign to most it citizens, by leaders who are rarely fellow nationals, and it has demonstrably failed over many years to pursue policies which have improved their livelihoods. The institutions therefore seem destined to live for a very long time with a low degree of democratic legitimacy, except that which they can borrow from the governments of their member states, probably with a body of opinion in many member countries that will permanently refuse to accept its legitimacy.
One should not be too surprised by this. The founders of the European Union were not endeavouring to create a democratic form of government. They had other goals: to prevent a resurgence of national rivalries and another war in Europe, and to unite so that it could resume what they thought was Europe’s rightful place in world politics, alongside the then superpowers of the United States and Soviet Russia. The institutions they created had no particular democratic mission. They had witnessed democratic mandates given to Hitler and Mussolini and wanted a form of government that could override national democratic governments. They took no pains to check or counter-balance the executive arm of the first supra-national government they created: the High Authority of the European Coal and Steel Community in 1952, which morphed into the European Commission in 1958. They were indifferent to the powers that the permanent career officials of their own secretariat would inevitably accumulate from the centre of the communication network of member countries, organizing their own meetings, setting their own agendas, left to interpret and implement their decisions, and to greet their successors when their term of office came to an end.
Declaration of the rebels at the Constitutional Convention 2003
A minority of members were dissatisfied with the way the constitutional Convention conducted its business, and its conclusions. They organized themselves as the Democracy Forum and after the convention had published its draft constitution issued this press release. They later issued a minority report:
As members of the Convention on the Future of Europe, we cannot endorse the draft European Constitution as presented to the European Council. It does not meet the requirements of the Laeken Declaration of December 2001, which set up the Convention and established its terms of reference.
Laeken describes the Union as “behaving too bureaucratically”.
The draft Constitution fails to address the 97,000 pages of the acquis communautaire, and proposes a new legal instrument, the ‘Non Legislative Act’, whereby the Commission can pass binding laws.
Laeken says “the Union must be brought closer to its citizens”.
The transfer of more decision-making from member states to the Union, concerning criminal justice matters and new areas of domestic policy, will make the Union more remote.
Laeken adds that “the division of competences be made more transparent”.
But the new category of ‘shared competences’ gives no assurance about how power is to be shared, particularly as member states will be forbidden to legislate in these areas if the Union decides to act.
Laeken calls for the “European institutions to be less unwieldy and rigid”.
But the Constitution gives more power to all the existing EU institutions and creates a Europe of Presidents, with more jobs for politicians and less influence for the people.
Laeken highlights the importance of national parliaments, and the Nice Treaty “stressed the need to examine their role in European integration”.
National Parliaments lose influence relative to the Commission and the European Parliament. Their proposed new role in ‘ensuring’ compliance with the subsidiarity principle is in reality no more than a request which the Commission can ignore.
Laeken calls for “more transparency and efficiency” in the Union.
The Constitution concentrates more executive and budgetary power in the very EU institutions which have been the subject of repeated and continuing scandals over mismanagement, waste and fraud.
Laeken emphasises simplification: “if we are to have greater transparency, simplification is essential”.
The draft constitution runs to over 200 pages. The institutional provisions are the result of contorted compromises. It is hardly a document of clarity and inspiration.
Laeken suggests the possibility of a constitution: “The question ultimately arises as to whether this simplification and reorganisation might not lead in the long run to the adoption of a constitutional text of the Union.”
The concept of the Treaties as an inter-governmental construct being transformed into a monument for European ambition was rapidly seized upon, but without any study of either the alternatives on offer or the long-term consequences of such an act.
Lastly, Laeken’s overriding aim was a Democratic Europe.
The draft Constitution creates a new centralised European state, more powerful, more remote, with more politicians, more bureaucracy, and a wider gap between the rulers and the ruled.
 Its proceedings have been described by two participants. G. Stuart, The Making Of Europe’s Constitution, Fabian Society, Norwich, Crowes complete print, 2003, p. 109-126, Available from: https://www.fabians.org.uk/wp-content/uploads/2012/04/TheMakingOfEuropesConstitution.pdf
 D. Heathcoat-Amory, Confessions of a Eurosceptic, Barnsley, Pen & Sword Books Ltd, 2012, P. 119.
 P. Wintour, ‘EU scraps timetable for ratifying constitution’, The Guardian, 17 June 2005, http://www.theguardian.com/politics/2005/jun/17/eu.politics, (accessed 20 April 2016).
 Recorded in L. Rotherham, Plan B for Europe, the Bruges Group , pp. 67–68, Available from: http://www.brugesgroup.com/images/issues/civil_liberties/plan_b_for_europe_lost_opportunities_in_the_eu_constitution_debate_pdf.pdf (accessed 23/05/2015).