Two interesting developments this week have prompted some ponderings…

1) The European Court of Human Rights has ruled the UK police’s stop and search tactics illegal

This creates a serious dilemma for anti-EU libertarians, as shown by the response of anti-EU blogger 13th Spitfire in the (fascinating) comments thread on law blog Charon QC’s coverage of the ruling (via the rather good Jack of Kent). As 13th Spitfire puts it:

Though I sincerely disagree with the Stop and Search laws, it just leaves a very bad taste in the mouth that we have to be told by a foreign court that our domestic proceedings, and by extension our parliament, is illegal.

2) The EU-withdrawalist UK Independence Party has announced that it favours a ban on the burka. This despite UKIP long having portrayed itself as a more or less libertarian party.

Libertarians are a hugely over-represented breed among the political blogosphere. There’s hundreds of them, on both sides of the Atlantic – but in real world politics there’s barely a handful, and they rarely even retain their deposits in elections. They are, however, so vocal on the web that few online political discussions can pass without a libertarian of some stripe cropping up to make their case. As such, libertarian arguments increasinly need to be addressed, even while libertarianism remains decidedly fringe.

The prime unifying belief that they share is that individual liberty is paramount, and that the role of the state should be kept as minimal as feasibly possible. A libertarian, as a rule, opposes bans and restrictions – taking John Stuart Mill’s laudable harm principle as the starting point for pretty much all their approaches to the world, but taking this idea far further than Mill himself (or his fellow small-”L” liberals) ever did.

The libertarian argument against European integration in general – and the European Union specifically – is usually that it implies the imposition of a new layer of government above the national. As libertarians believe small government to be the best form, this is an understandable approach. After all, if you already have a national ministry dealing with policy area X, where’s the need for an additional European-level administration which deals with the same area?

What happens next, however, is that the majority of libertarians seem to take this entirely reasonable argument against the repetition/overlap of governmental/administrative layers, and from it extrapolate that it is the super-national, European-level layer of government/administration which is the unnecessary one.

If the smallest amount of governmental/state interference in the life of the individual – and the maximum level of individual liberty – is the key aim, then surely it is the *national* layer which is superfluous?

If we agree that there are a few basic fundamentals for individual liberty – the right to trial, to vote, to be free from persecution, to free speech, etc. etc. (read Mill and the US declaration of independence for more) – then why, in the case of the EU, have these asserted 27 times in 27 countries, when once should be enough?

If we agree, as most libertarians do, that some laws and regulations are necessary for the smooth functioning of society – agreed systems of weights and measures (to prevent fraud), some level of health and safety guarantees, product standards, environmental/pollution restrictions (all taking Mill’s dictum that as individuals we shouldn’t harm others and applying it to corporations and government bodies), etc. etc. – why have 27 different variants of these laws and regulations, when what’s good for one of us is surely good for all?

This is the fundamental reason why libertarians should be in favour of European integration (note: not necessarily the current nature of European integration or current European bodies, both EU and non-EU, but the general principle) – for an individual in country X to have to abide by different laws than an individual in country Y implies a strong likelihood that the two are experiencing different levels of individual freedom. Plus, most importantly, if individual X goes to country Y, then he/she will have to abide by country Y’s laws – a potential restriction on that individual’s liberty of movement. (Case study: In Germany and Austria, it is illegal to deny the Holocaust; it is not in the UK. When British citizen David Irving went to Austria, having denied the Holocaust, he was arrested and imprisoned.)

Of course, restricting this to a mere continent (and not even all of that) is not ideal. The true libertarian would agree that liberty is universal – for true liberty to exist, what applies to one individual should apply to us all – and therefore we should be pushing for world government, where everyone on the planet has the same rights as everyone else.

But this still doesn’t take away from the fact that if you want small government for maximum individual liberty, the higher the level at which the basic laws and regulations are imposed, the better. Universal is the ideal (hence the UN’s Universal Declaration of Human Rights), but if that proves impossible for now then you surely go for as broad an area as you can? The best part of a continent is not a bad starting point, and is certainly better than a mere individual country. Especially when, as the European Court of Human Rights ruling demonstrates, individual countries cannot be relied upon to safeguard the liberties of their citizens.

I have long stated this to be one of my prime motivations for supporting European integration: the ability of super-national bodies to restrict the power that nation states can hold over the individual. Case in point: if you are British, you have obligations but few rights – we remain, technically, subjects, not citizens. As I have argued before (in some detail), it was only with the introduction of EU citizenship that

“for the first time in Britain’s history, British citizens/subjects have the right to vote, to free movement, and so on, rather than just the privilege – we are no longer dependant upon the whim of parliament.”

And yet still we find self-professed libertarians clinging to the old, liberty-restricting national apparatus, rather than the new, liberty-granting super-national bodies of the EU and Council of Europe. Supposedly state-hating libertarians who cling to the state.

It genuinely baffles me. Can any libertarian provide me with a libertarian case for this apparent nationalism? Because the way I see it, nationalism and libertarianism are mutually exclusive – one being a collective idea focussed around the concept of a geographically and legally-restrictive state, the other focussed around the ideas of individualism and freedom.

Yes, it’s confusing. Too many Councils, all something to do with Europe. I get that it’s hard to keep track of them all – hell, I get confused myself sometimes.

But – and this is an important but – when the media is discussing these things, it should get them right. All too often, the media gets them muddled up and seems to have little understanding of where the distinctions lie, which does what, and where the sensible comparisons are.

The Council of Europe

It’s been around the longest, so you’d think people would understand it by now. It is not part of the EU – though every EU member state is also a member of the Council of Europe.

Founded in 1949, the Council of Europe focussed on fostering democracy, human rights and the rule of law. It has 47 member states (20 more than the EU) – and most often makes the news when its main court, the European Court of Human Rights (note: not an EU institution – that’s the European Court of Justice, and yes, that just adds to the confusion) features in a high-profile case.

The Council of Europe has a Secretary General, but not a President. It also – like the EU – has a Parliamentary Assembly which, unlike the European Parliament, is not directly elected, but is made up of members of the parliaments of its member states, their numbers (similarly to the European Parliament) based upon the population of the member state in question. The Council of Europe also – to add to the confusion – has a Congress, as well as a Committee of Ministers and a Commissioner for Human Rights (the European Union does *not* have a Commissioner for Human Rights).

The European Council

This is the body over which all the fuss is currently taking place, as under the Lisbon Treaty the European Council is to gain a President for the first time (although – as noted here recently – this position has very limited powers). It is not an official EU institution – yet is part of the EU. (Told you it was confusing…) It will only become an official EU institution after the Lisbon Treaty is ratified, though its role and powers will barely change.

The European Council is made up of the heads of government of the 27 EU member states, plus the President of the European Commission (and so, to some extent, it already has a president…) but – important to note, considering all the fuss that’s being made over its president – has no formal legilsative or executive powers. It only meets four times a year – twice at the headquarters of the Council of the European Union (to add to the confusion) and twice in the country of the member state that holds the Presidency of the Council of the European Union (yet more confusion) – in what are informally known as EU Summits. These started on an informal basis back in the early 1960s, first became formalised in the 1970s, and were included in an EU treaty for the first time in the 1987 Single European Act, and only gained a defined role with the 1992 Maastricht Treaty.

The European Council is – unsurprisingly, as it’s a formal meeting of the heads of government of the EU member states – the body that “provide[s] the Union with the necessary impetus for its development”, by allowing the heads of the member states to agree broad policy objectives for the Union to focus on. It has also adopted some of the higher-level powers of the Council of the European Union, such as the appointment of the President of the European Commission – again, because it is made up of the heads of government of the member states, and so it makes sense for these things to be discussed in the European Council (as the governments of the member states can veto candidates for the Commission Presidency, as well as other proposed EU legislation, it’s eminently sensible for them to try and agree a shared agenda before everyone starts work on pushing through candidates or policies).

Because of these powers – again, to stress, simply a natural offshoot of the European Council being made up of the heads of government of the member states – it can be seen as one of the EU’s most powerful bodies, despite not being an official EU institution. Some have compared it to the British Cabinet – though, as it meets only four times a year and tends to focus on broad, general policy objectives rather than specifics, this is being rather generous.

The proposed President of the European Council, therefore, will chair only four meetings a year, and act as a formal middle-man for the governments of the member states. He or she may well be able to propose solutions, suggest focuses for EU policy, and lend the EU a guiding hand, but – and this is a very important but – the President of the European Council will have practically no formal powers, and the job is very poorly-defined. He or she can suggest and try to persuade – but the final decisions will still be taken by the heads of government of the EU member states who make up the European Council, not by the person they have appointed (for just a two and a half year term, lest we forget) to help them reach agreement. It is an important position that will require a great deal of skilfull diplomacy, but it is not powerful one.

The Council of the European Union

This is the primary decision-making institution within the EU. The Council of the European Union is the same thing as the Council of Ministers. The latter is an informal name that was no doubt originally intended to prevent confusion with the European Council – but has only added to it. To make matters worse, it’s also sometimes referred to as the Consilium.

The members of the Council of the European Union are the 27 government ministers of the EU member states for the relevant topic under discussion. If Agriculture, then the Agriculture ministers. If Finance, the Finance ministers, and so on. (The Council of Europe’s Committee of Ministers, by contrast, is made up solely of the Foreign ministers of the Council of Europe’s member states, or their representatives.)

Because of the subject-specific, ministerial-level debates that take place at the Council of the European Union, it can be seen as the EU’s principle decision-making body – and can in some cases overrule the European Parliament (though under the codecision procedure, unanimity between the two bodies is usually required). It is here that EU policy is most often determined.

The Council of the European Union also – like the European Commission, and like the European Council will soon – has a President. This is the six-month rotating “EU presidency” (as it is often informally known), that flits from member state to member state in an order that’s about as clear as mud, but no doubt makes sense to somebody. However, just to confuse matters een further, the actual position of President shifts throughout these six-month presidencies, depending on the topic being discussed. If it’s Agriculture, then the Agriculture minister from the member state that holds the Presidency of the Council of the European Union is, for that session, the President. If Finance, the Finance minister, and so on.

This rotating Presidency of the Council of the European Union will continue after Lisbon’s ratification, and will exist alongside – not be replaced by – the Presidency of the European Council.

The Council of the European Union also – just to make matters even more confusing – has a General Secretary, who sits for a five-year term to help co-ordinate policy between the rotating presidencies and ensure some kind of continuity. The position was founded in 1999, and is currently held by Javier Solana, who is at the same time the High Representative for the Common Foreign and Security Policy. After the Lisbon Treaty comes in, the latter part of Solan’s current job is to be separated out, merged with the European Commissioner for External Relations, become known as the High Representative of the Union for Foreign Affairs and Security Policy – in which capacity whoever gets the gig will chair any Council of the European Union discussions on foreign affairs.

If you want comparisons to national governments, the Council is the closest the EU has to a Cabinet, as the power of executive formally lies with the Council of the European Union. However, the Cabinet analogy isn’t entirely right, because the Council also acts as the second (upper) chamber of the EU legislature – like the US Senate or UK House of Lords.

What this basically means is that the Council of the European Union is where most decisions get made – albeit after being pointed in the right direction by the European Council. Were Lisbon introducing a permanent President of the Council of the European Union, rather than of the European Council, then it would indeed be a position with the potential to wield a hell of a lot of power.

But it isn’t. So there’s no point getting all het up about it.

The quick version

Council of Europe
Not an EU body; concerned with democracy and justice

Council of the European Union
At once the EU’s Cabinet and Upper House of the legislature; where the decisions are made

Council of Ministers
The same as the Council of the European Union

European Council
The heads of government of the EU member states; an EU body but not an EU institution; effectively just a formalised old-school international summit, like the G8 or G20

A few vague thoughts towards predicting a new global geopolitics:

Globalisation has been the undeniable trend of the last half century.

As transportation and communication technologies have advanced, the world has got smaller. You can now get from London to Australia in a day where, two hundred years ago – at the height of the nation state – it would have taken several times that to travel from London to Edinburgh. A century ago, most goods in your local shop would have been local to your (more or less) immediate area – even with the expansion of 19th century Empires and the arrival in Europe of affordably-priced exotic fruits and out-of-season vegetables, delivered via early refrigerated ships. Now we have to go to specialist shops to get local produce – and local today often means little more than “from the same country”. As for the interconnectedness of the global economy, we have had the ultimate proof over the last year as recession has spread around the world.

Communities arise due to a combination of proximity and common interest – the latter more often than not following the former.

Up until the dawn of the steam age, most modern nation states were highly fragmented, with much autonomy among the further-flung regions. The steam train – and later, the telegraph – enabled more effective administration over longer distances, and so nation states became more coherent as entities.

The proximity of most peoples on Earth has, over the last half century – since the advent of the Jet engine and, more recently, the virtual proximity made possible by the internet – likewise become ever closer. The ability to administrate over far larger areas has similarly increased. Where two centuries ago – as the French national identity was beginning to solidify post-Revolution and under the auspices of Napoleon – it would have taken a week to travel from Paris to Marseilles, there is now nowhere on Earth that you cannot get to in a week, no matter your starting point. Two centuries ago it took six days to travel from London to Edinburgh; a century ago it took six hours; now you can get from London to New York in six hours.

At the same time, with the globalisation of the world economy, previously disparate communities – separated by many hundreds of miles as well as by language and culture – are now economically interconnected via the a combination of the complexities of global finance and the fact that their local shops are full of goods from other countries.

New technologies lead to new identities.

It is possible over the last few centuries to demonstrate that advances in travel and communication technologies have led to consolidation and centralisation of governance structures, as it has become ever easier to manage large areas from a central capital. At the same time, shared identities have arisen, as previously disparate communities (sometimes nominally already under the same administration, but usually for all practical purposes largely independent of each other) have suddenly found themselves in the same boat. Scottish and Cornish become British; Normans and Savoyards become French; Milanese and Sicilians become Italians. Old identities are retained, but the new proximity provided by innovative technologies allows a top-down governmental and bottom-up social coming together.

The EU was, at its birth, backward-looking – yet accidentally stumbled upon an idea far ahead of its time.

The EEC was formed in the 1950s not as a reaction to new technology, but as a means of preventing the violence that so often ensued from the clashing interests of nation states. It was the dawn of the jet age, the year (1957) that Sputnik’s launch heralded the even more advanced era of the space age – yet the advances in transportation and communication that the jet engine and satellite were in the process of bringing about were barely on the radar of the EU’s founding fathers.

Nonetheless, the coming together of the previously competing states of a continent to pursue shared interests was to be made far easier by these new technologies. In 1920, to travel from London to Athens took days. By 1960 it was a matter of hours. Europe had shrunk. The EEC was formed just on the cusp of this new shrinkage, and so was in an ideal position to capitalise on the possibilities that the new technologies provided.

Approaching the present.

With the arrival of the internet, the world has shrunk yet again – only this time only socially/culturally, as we can chat away to people of any nation from the comfort of our front rooms. But as long as the physical transportation of goods over the internet remains impossible, for physical commerce we remain reliant on 20th (and even 19th) century technologies.

This places a geographical limit on effective economic interaction – at least when it comes to the exchange of day-to-day goods. If it takes more than a few hours to transport your goods from A to B it’s usually more trouble than it’s worth, especially with rising fuel prices. Large organisations may be able to trade over far larger distances – using economies of scale to make sending a refrigerated container ship packed with New Zealand lamb halfway round the globe make financial sense – but for the small business (as most businesses are), local trade remains the most effective. The arrival of the railway and the aeroplane expanded the geographical limits of the small business’s economic potential, but we have yet to advance much beyond these limits, set now for more than half a century.

The geographical limitations of (economic) communities.

In practical terms, if a journey of more than a few hours is too long to be economically viable for small businesses, then the geographical limit of most small businesses is more or less continental. At the same time, the EU has done a good job of continuing the work of postwar reconstruction and improving Europe’s transportation and communications infrastructure, ensuring that the EU area is one of the most effectively interconnected on earth – rivalled only by the United States of America, which has the added advantage of a) having been a coherent nation state for 90 years before the EEC came into being, and b) working with a pretty much blank canvas.

But this is a minor issue – there is a far more compelling reason why socio-economic communities today still have geographical limits: time zones. It may well be possible to travel to the west coast of America in half a day, and to speak to someone in Los Angeles, Seattle or San Francisco at any time. But we still cannot get over the fact that there is an eight hour time difference between London and LA.

With office hours generally running from 9am to 6pm, we have a nine-hour window for normal economic activity. Working with a company on America’s east coast while based in London is feasible – the five-hour time difference allows a four-hour overlap, with the Americans starting work around 2pm London time – but working with a company based in Seattle presents problems, with only a one-hour shared office window. For effective working, you need to be able to communicate with colleagues pretty much all the time – losing more than about four hours every day from the nine hour working day will lead to growing inefficiencies. The technology exists to communicate with people on the other side of the world – but the fact remains that when you contact them, they may well be asleep.*

The continental United States is spread over four timezones. From the Atlantic to the Urals, Europe is also spread over four timezones. The same goes for Latin America. Africa is spread over five. Asia and Australasia are rather more spread out – yet if you take South East Asia through to eastern Australia, the time difference is only four hours again, yet covers Australia, Japan, the Phillippines, Indonesia, Thailand and most of China.

These are, geographically-speaking, all entirely practical economic units. Any small businessman on the east coast of America can easily trade with one on the west without needing anything much in the way of complicated planning. A shopkeeper in Portugal can phone a supplier in Turkey, and know he will be able to sort out his orders that same day – possibly even take delivery the same day, if he phones in the morning. But for someone in London to order a vital part from Japan, there remain serious practical difficulties – the nine-hour time difference compounded by a 12-hour flight time. By the time the Japanese supplier has got the message and sent the part, two days might well have passed – which in business terms can prove disastrous.

Today.

So now, by accident at least as much as design, Europe (or, at least, Western Europe) is, in terms of its infrastructure and and geography, about as coherent and sensible a socio-economic unit as most nation states were two centuries ago, before the arrival of the railways and telegraph – if not more so.

Having been working on coming together for longer than other parts of the world, the EU’s institutions, procedures and structures are further advanced. Yet they were not originally planned with the aim of taking advantage of new technologies – but of preventing the conflicts of earlier ages. The overriding feature of the way the EU currently works is the perennial clash between the institutional attempts to find compromises between conflicting national interests (the need for unanimity on substantial changes), and structural fluff designed to flatter the national egos (the hang-on of old school diplomacy that is the veto).

The big fear of the old developed (national) economies over the last decade has been the rise of the new economies of China, India and – to a lesser extent – Brazil. These nationally-focussed concerns have been passed on to the EU – the organisation’s member states have been trying to use the EU as a way of maintaining strength through numbers against the newcomers on the global scene. Technology has allowed for greater pooling of resources and more efficient ways of working, enabling the EU’s member states to maintain the hope that they can compete against the vast potential of India and China – a potential based largely upon those two countries’ huge populations and geographical areas, which on both counts rival those of continents.

Looking to a continental future?

Yet now there are signs of yet more new developments. In the last couple of weeks, two potentially hugely significant events took place – both of which took their inspiration from the European Union, and both of which recognise that continental-scale organisation (or, at least, organisation across several – but not more than four or five – timezones) is both desirable and practical.

First, in Latin America, the members of the Bolivarian Alliance for the Americas (ALBA) decided to adopt a single currency – the SUCRE – explicitly modelled upon the euro. (And before you dismiss ALBA as made up of piddlingly insignificant countries, let’s not forget that the EU started out with just six member states, all still recovering from a devastating war, and three of which were tiny. Let’s also not forget ALBA’s more significant neighbours, who will be watching developments with interest.)

This was swiftly followed by fresh moves by the Association of Southeast Asian Nations (ASEAN) to create a regional bloc – including an EU-style common market and, potentially, a euro-style single currency.

Yes, ASEAN can also be dismissed as being made up of a bunch of relative lightweights – its most significant members probably being Indonesia, Singapore and Thailand, hardly global major players. But this new move shows far greater ambition – having been proposed by Japan, backed by China, and potentially including Australia, New Zealand and even the United States down the line. Any economic bloc including China and Japan among its members is a force to be reckoned with.

A new age?

And so we may be on the cusp of a major shift in global geopolitics and the structuring of the global economy. If these two new continental blocs get off the ground, the EU will have continental competitors for the first time. And the member states of the EU, until now using the benefits of membership to give themselves an economic advantage on the world stage, will find it even harder to compete as individuals.

Of course, timezone practicalities as well as national egos could still prevent the ASEAN plan from ever coing to fruition, but even a smaller-scale version of an Asia-Pacific version of the European Union would herald a major shift in the way the world works.

The upshot? The EU could well be about to shift from being a nice idea to being an absolute necessity.

* Yes, larger organisations can work on a 24-hour basis – but most businesses are not larger organisations. And for an economic community to benefit the most people within it, its advantages must be accessible to everyone without having to stay up all night.

There are many, many good arguments to be used against the EU. Scores of them, in fact. In places it’s massively inefficient. In places there are strong indications of what seems like systemic corruption. Some of the policies it has introduced have been hugely harmful to both people and the planet.

But do the eurosceptics use these as their main lines of attack? No. Instead they wander off into the realms of fantasy to spew out hilariously inane nonsense like this glorious example from leading Daily Mail columnist Peter Hitchens – easily the most stupid article I’ve read about the EU in years. Read the comments as well and it’ll swiftly become clear why some people assume that all eurosceptics are loons.

Eurosceptics aren’t loons, of course. At least, not all of them. Many eurosceptic complaints are largely valid and – as I’ve argued before – should be paid attention to.

But the maniacs tend to shout the loudest, and in the process end up doing the eurosceptic cause no end of harm. UKIP’s Nigel Farage realised this, hence his attempts to gradually cull the more verbal conspiracy theorists from the party over the last few years and associate with more intelligent and thoughtful critics of the EU like Jens-Peter Bonde and Marta Andreassen. The anti-EU crowd in Ireland have also no doubt realised this now – because one of the major reasons for the huge swing to the Yes camp was undoubtedly because the Irish people were so annoyed at being taken in by the baseless conspiracy theories that the No groups were spewing out last time around.

Because if – as Hitchens does in the article linked above – you wander off into the realms of hyperbole (e.g. the wonderfully idiotic claim that “Increasingly, the provinces of Europe, which until today were countries, will need its permission to exist at all” or the pathetic “Shouldn’t somebody have pointed out that in the recent history of the Continent, yellow stars call up only one dismal image, the mass murder of Europe’s Jews?” – that last especially awful considering the Mail’s support for the Nazis), all you end up doing is discrediting yourself.

Just as if I claimed that the EU’s great because it’ll give us all magical ponies that can fly and shit gold, you’d not pay attention to anything else I said as I was obviously a delusional liar, so do a lot of us get switched off every time a leading eurosceptic makes such obviously stupid remarks as those that run throughout Hitchens’ piece.

There are all sorts of genuine problems with the Lisbon Treaty. There are all sorts of entirely legitimate reasons why the Irish shouldn’t have held a second referendum, and why they should have voted no.

The thing is, I’ve hardly seen *any* of them brought up in the dozens of eurosceptic pieces that I’ve read over the last few days. Instead, eurosceptic arguments still seem largely to revolve around vague emotional appeals to patriotism and national myths, topped off with objectively false misrepresentations of what it is the EU does and is doing. Anyone with half a brain who looks at these arguments for half a minute will write them off as the nonsense that they are – and the eurosceptic cause takes yet another hit.

Every time you make such wild claims – and they turn out to be unfounded – you are alienating potential allies. When Lisbon comes into force and life in the EU continues much as before, proving all the claims that this treaty is in any way significant to be objectively false (because no matter what many eurosceptics claim, Lisbon *is* just a tidying-up exercise) – when member states continue to run themselves, when the threatened abortion clinics and enforced involvement in military campaigns fail to materialise – then anyone with half a brain will be able to see that the claims of the eurosceptics were false, and so stop paying them any further attention.

So come on, eurosceptic types – for your own sake start with the *proper* arguments against the EU. Stop all this hyperbolic emotional guff that’s characterised so much of the debate over the last couple of decades, and make with the convincing critical analysis. Stop with all the pathetic and blatantly false comparisons to dictatorships past and present. End the “EUSSR” meme – that only makes everyone who uses it look like a moron.

Instead, try pointing out what’s *actually* wrong with the EU, rather than make up nonsense about Lisbon ending Irish neutrality, forcing abortion, ending national sovereignty, creating a superstate and so on. You’ll find that you’ll win a lot more support – whereas at the moment you’re just preaching to the converted (as the comments to Hitchens’ piece perfectly prove).

It’s not like it’s a difficult target – the EU’s got so much wrong with it it’s like blasting away at the proverbial fish in a barrel. No one with any critical faculties can look at the EU and think it’s perfect. There’s simply no need for all the nonsense that Hitchens and co like to spew.

(And yes, I know that not all eurosceptics use the sorts of silly arguments noted above. The point is that as long as a vocal minority of eurosceptics do, the entire cause is going to continue to be damaged by association.)

A point that arose in the comments to the National identity vs European identity post the other day was that of citizenship, commenter Anoldun noting that

“We were informed we were now “Europeans” when the Treaty of Maastricht was ratified, but the people had nothing to do with wanting to be EU Citizens. They were not asked if they wanted this extra ‘identity’, they did not apply for any such forms to make them citizen’s of Europe and did not even ask for or want them. None of the Commonwealth Countries that fight and die with the British, have British identities or been made British citizens, if THEY wanted to become so they would have to fill forms in etc and if we wanted to give them different identities there would be much form filling and asking of questions. No such things took place when we were made EU Citizens, asked for Passports or have to have an Identity card to prove who we are. I have absolutely no sense of belonging to “Europe” Nosemonkey and certainly none with the EU.”

Citizenship is, of course, effectively a legal codification of a certain form of identity, usually based around the notion of a nation state. EU citizenship is unusual in this regard, to be sure – because despite having certain characteristics of a state, the EU is not one. (For more on the EU as a state, and the perennial fear that it may become a superstate, please see my series of posts on the subject from earlier this year: 1, 2, 3, 4, 5.)

Citizenship as imposition

The complaint that EU citizenship has been forced upon us without our say is understandable, but if you think about it for a moment it’s also illogical. After all, the vast majority of us have had no say in what nationality we are, our citizenship having been determined by where we were born (or, in some cases, by that of our parents). I had no more say in being British than I did in being male, or having blond hair and green eyes.

The sudden creation of a new layer of citizenship over and above a national/state one is not a new idea, of course. It happened in the United States back after the American Revolution (the comparison that those who fear an EU superstate are likely to fear), but also rather more recently, with the British Nationality Act 1948. This oft-forgotten Act of Parliament made *every single person* in the British Empire a British citizen, whether they wanted to be or not – and considering this was the year after Indian independence, and shortly before the Empire disintegrated, it’s a safe bet that many had little interest in British citizenship, and if anything would have taken this as a patronising insult.

When it comes to EU citizenship, you may not identify yourself as European; you may not want to be European; but if you are a citizen of an EU member state then you are an EU citizen whether you like it or not – just as (in most cases) you are a citizen of that state whether you like it or not.

British citizen or British subject?

It’s also worth noting that the very concept of citizenship is continental European in origin (in the modern sense mostly via the French Revolution, though the idea does pre-date it) – and a very recent introduction to Britain. It’s a word that entered English via the Old French citeain, itself derived from the Latin civitatem.

Indeed, until the aforementioned 1948 British Nationality Act, there was no such thing as a British citizen – we were all merely subjects of the crown.

This, in effect, meant that we – as British subjects – had obligations to the state, but few rights.

This is because, contrary to popular belief in the power of the likes of Magna Carta and the Bill of Rights, the one constant in British constitutional law over the last three centuries has been that no parliament can bind another. This includes binding future parliaments by legislation granting rights to the people – because, again contrary to popular belief, in Britain the people have never been sovereign – first sovereignty lay with the crown, now it lies with parliament.

This means that the “right” of the people of Britain to vote, to a fair trial – even to life – are all down to the whim of parliament, and can be withdrawn at any time. (For more on this, see this post on the nature of sovereignty, this post on the nature of the English/British constitution and how “rights” fit into it, and this Wikipedia article on the concept of parliamentary sovereignty.)

The benefits of EU citizenship

In contrast, EU citizenship has conferred rights with no obligations.

With the introduction of EU citizenship, for the first time in Britain’s history, British citizens/subjects have the right to vote, to free movement, and so on, rather than just the privilege – we are no longer dependant upon the whim of parliament.

In return, the EU asks nothing of us. We are not directly taxed by the EU, nor does the EU directly pass any laws that we have to obey – all go via the governments of the member states, all of whom can challenge every stage of the process. Nothing the EU does is done without the approval of the (elected) governments of the member states – and therefore our obligations remain to the member states we are citizens of, and not to the EU as an entity. This may sound like pedantry, but in a legal sense it is a vital distinction.

It is the ongoing power that the British parliament has to abolish any and all freedoms it so desires that is one of the key reasons why I became in favour of some form of supranational body that could, for the first time in the country’s history*, serve to guarantee the freedoms that we have all come to assume are our right.

EU citizenship being layered on top of national citizenship finally guarantees all British citizens the right to appeal to a court that lies beyond the British government’s jurisdiction, whereas before we were stuck with the House of Lords as the highest court of appeal – a House of Lords and a justice system presided over by the Lord Chancellor, a member of the same government against whose abuses we would have been appealing.

Because the trouble with the concept of sovereignty is that is implies *absolute freedom of action*. In a state where the people are sovereign – as in the US with its “We the people” opening to the Constitution and specific clarification of the people’s rights in the 9th Amendment – this means that the people are (legally) secure from governmental abuses of power. In a state like Britain, where parliament is sovereign, it means that the people have no guarantees about anything – no rights, only privileges, and no legal recourse if those privileges are withdrawn. (The same problem faced parliament in the 17th century – they wanted certain guaranteed rights, but the monarch was sovereign. The problem was only solved by a series of bloody civil wars, the constitutional shift finalised by a foreign invasion.)

The concept of EU citizenship rectifies that historical/legal/constitutional anomaly – this time without a drop of blood shed.

* The UN’s Universal Declaration on Human Rights (1948) and the Council of Europe’s European Convention on Human Rights (1950) were steps in the right direction, but the former is not legally binding, and the latter’s failings are made clear by the fact that the likes of Russia and Georgia are signatories, despite routinely breaching their citizens’ declared rights under the Convention.

The debate continues to rage in the comments to my history: starting assumptions post, much of it coming from EUtopia regular Robin, a man firmly convinced of the superiority of national identities over any “European” one:

your national identity comes readily to you but this EUropean identity seems manufactured by those who are stakeholders in this EU project or its supporters.I also pointed out that Europeans may not, depending on their nationality, have that much in common with other Europeans, and many will have more in common with nations outside of Europe

Some fair points there, for sure. But what about the claim that “your national identity comes readily to you” contrasted with “this European identity seems manufactured” – the implication seems to be that national identities are somehow organically-formed.

This certainly can be the case – true national identities are usually based on a closely-shared culture and language. Think the Basques or Celts or Roma – not confined within the borders of any one country, but with a definite sense of nationhood.

The rise of national identities

Nation states, however, are entirely different beasts. The histories of France and Germany – two of the Great Powers of Europe, and key personifications of the nation state concept – are dominated prior to the last couple of hundred years by centuries of internal conflict and power struggles as their various constituent parts battled for control. People in the 16th century may have felt “French” or “German” – but only AFTER they felt themselves Angevin, Bavarian, and so on. The same goes for Spain, Italy, Poland, Austria, Switzerland – pretty much every European state. Even England was formed from constituent parts, albeit rather earlier than many other future European nation states.

In every case, a “national” identity had to be superimposed over the smaller-scale, pre-existing identities of the units that were brought together to make up the new, larger nation state, to forge a sense of shared identity between Angevins and Provencals, Bavarians and Saxons, Catalonians and Andalucians, where previously there was not just none, but also frequently a sense of hostility and rivalry.

Much of the time this has been due to the perception of some external threat, either real or fictional – in the case of 16th/17th century France, the rise of the Habsburgs in Spain, the Spanish Netherlands, Austria, Northern Italy and the Holy Roman Empire; in the case of 19th century Germany, the perceived threat from Austria-Hungary to the south and Denmark to the north; in 1930s Germany, the perceived threat was the Great Depression, communism and “the Jews”. The reason for forging a new sense of unity is aimed both internally – to promote loyalty to the state in a time of crisis – and externally – to demonstrate that unity to your enemies, and make clear that your constituent parts are no longer potential allies.

As Robin is so keen on his English/British identity, let’s take that as a more detailed case study.

The rise of the British and English national identities

The British national identity has only been created during the last 3-400 years (first under James VI/I to try to mesh his Scottish/English subjects together – something that didn’t work – then after the Act of Union of 1707, mostly in response to the rise of France under Louis XIV to prevent the revival of the old Franco-Scottish anti-England alliance). Yet this British identity *still* hasn’t fully taken hold, with sizable chunks of the population still feeling Scottish/Welsh/English/Cornish/Irish/whatever far more than they feel British – a feeling heightened by the different cultures and traditions, languages and religions and even (in the case of Scotland) legal systems still in place in the various constituent states of the United Kingdom of Great Britain and Northern Ireland.

Just as the British national identity rose in response to a threat, so too did the English. The Danish/Viking invasions of the 9th/10th centuries first led to concerted efforts at defence, then to alliances, finally to the expansion of the old Kingdom of Wessex as the Anglo-Saxons fought back against the Danes. The Heptarchy – the old kingdoms of Wessex, East Anglia, Mercia, Northumberland, Kent, Sussex and Essex (not to mention smaller kingdoms like Bernicia, Deira, Surrey, Lindsey, the Isle of Wight, Hwicce, Magonsaete, Pecsaetan, Wreocensae, Tomsaete, Haestingas, the Middle Angles, and Cornwall which were mostly sucked into the major seven during the course of the Dark Ages) – was united as England not due to any inherent feeling of shared identity, but thanks to the Viking threat and Alfred the Great’s realisation that the best bet was safety in numbers. (A very similar idea to that which led to the European Union, in fact.)

But that’s just the creation of England as an entity – not Englishness as an identity. As Robin rightly notes, just because you can identify a geographical area with some common features (like England back in the 9th century, or Europe today), doesn’t mean that there is any sense of shared identity among the people of that area.

English national identity took several centuries to emerge after England’s unification – there were early hints under Edward I as he battled the Welsh, Scots and French (again, the threat of war being a the key), though most historians now agreeing that it was first fully conceived during the reign of Henry VII as a more or less entirely political, top-down attempt to reunify the kingdom after the Wars of the Roses. (One of the key manifestations of this new “English” identity was Henry’s entirely PR-driven decision to name his first-born son Arthur, after the legendary English King, made newly popular by Thomas Mallory’s Le Mort d’Arthur, published the very year that Henry seized the throne and brought the long-running civil wars of York vs Lancaster to a close. How much better a symbol of England’s unity could there have been than for a new King Arthur to take the throne? Shame he died, really…)

“Englishness” was maintained as an idea by Henry VIII, first to secure his throne and then (almost by accident) during his dispute with the Papacy and subsequent Reformation. It was further solidified under Elizabeth I as she tried to unite her religiously-divided country in the face of the constant threat of Spanish and French Catholic invasions (trying to create a sense of national identity that could override the Catholic identities of some of her subjects). But even that didn’t work – witness the Civil War that erupted 40 years after her death.

Local vs national identities

Even today, there are sub-categories beneath “Englishness” that many people within England will pick as their primary “identity”: Scouse; Geordie; Brummie; Yorkshireman; Northerner – and so on. (Some of the pre-English kingdoms have retained some sense of identity remain – notably in Cornwall (mostly due to the older Celtic national identity that pre-dates Cornwall as an entity); others have been entirely forgotten – how many people in modern-day Lincolnshire perceive themselves to be Lindseyans?)

All of these local identities are far more natural in origin than the “English” or “British” “national” identites that lie above them as a broader unifying concept – and such smaller-scale identities will always exist – because before both English and British identities arose, the most important identities were (quite naturally) local – the village, the town, and at a push the county.

And little wonder – until the 19th century, let’s not forget, it would take at least a week to travel from London to Edinburgh or Penzance. The only other “Englishmen” you’d be likely to meet – unless you were a politician or noble – would be at the local market or the county fair. Why should someone from Devon feel any kinship with someone from Yorkshire? They would never meet, and even if they did they would speak differently, have different customs and traditions – and after the Reformation sometimes even different religions. (The conversion to Protestantism was a decidedly localised affair in England, despite being a top-down, state-ordained decision – there are even records of neighbouring villages in early 17th century Somerset, less than five miles apart, where one was Catholic, one was Protestant – they went on to join different sides in the Civil War, one supporting Parliament, the other the King…)

This argument about not meeting people from far away and having little in common with them when you do, of course, you could use against the concept of a “European” identity today – what does a Yorkshireman have in common with a Romanian?, etc.

Only today we are far more likely to encounter people from other EU member states than our forebears ever were to meet a fellow Englishman from the other side of the country. You can drive to Romania in a couple of days – a journey time that, when the English national identity was being formed, wouldn’t have got you even a quarter of the way from Cornwall to London. It’s quicker to fly from London to Romania today than it would have been, back in the 16th/17th/18th centuries when national identities were forming, to ride to the next town.

An attempt at a conclusion

All this, of course, goes to explain my belief that that broad, higher-level senses of belonging – at national or European level – are less important than lower-level, “primary” identites.

Yet even this isn’t entirely true – because senses of identity are entirely personal things. You can pick a bunch of people who were all born and raised in the same village, and yet there will still be a wide range of opinions among them as to what their primary identity (or identities) may be. Some may pick their national identity as most important, others that of their local area, still others their religion or their class.

Because if the case study of the manufacture of Britishness and Englishness has proved anything, it shows that the top-down imposition of a broad identity will only ever meet with limited success.

A broad identity can be a positive unifying force – the creation of a sense of “Britishness” in particular has prevented war within the island of Great Britain for the last three hundred years – though it can also cause conflict – as in Northern Ireland, where the imposition of the concept of Britishness continues to meet with violent resistance.

As such, although I don’t see a “European” identity as a threat to my own sense of identity or place, I can see how others might. And although I agree with Robin that there have been efforts to artificially create such a European identity – just as the English and British and French and German and Spanish and Italian (and so on) identities were artificially created before it – I don’t agree entirely. The growth of a European identity is also partially natural and organic as the economies and societies of Europe grow closer together, and as improvements in technology and transportation bring Europeans from different countries into more regular contact with each other – just as a sense of “Britishness” grew organically during the course of the last few hundred years as Britain’s infrastructure improved and people from Devon and Yorkshire and Scotland encountered each other more regularly, and grew to see the things that they had in common as well as those things that were different.

Some pre-English and pre-British identities have been lost; others have survived. The same will doubtless be the case in Europe if the European identity takes hold. But the process will be a long one. More than a thousand years after the formation of England, the Cornish still feel Cornish; seven hundred years after the conquest of Wales, the Welsh still feel Welsh; three hundred years after the Act of Union, the Scots still feel Scottish.

And so, in short, while I have no wish to impose a European identity on anyone who doesn’t wish it, I honestly can’t see how it can be seen as a threat. And likewise, I can’t see how any attempt to break down the perceived barriers between peoples of different identities in pursuit of a common good can be a bad thing. The creation of a European identity is not an aggressive movement, like the creation of a German identity was in the late 19th through to the mid-20th century – it is a positive attempt to bring together a continent whose entire history has been marked by warfare and conflict.

I can only see this as a good thing.

I’ve been a bit quiet over the last few weeks, largely thanks to the real world getting in the way.

One of the major projects I’ve been working on, however, is now in a pre-launch beta phase, and so can be officially revealed: Ideas on Europe – a new group blog that I’ve been developing in partnership with UACES, the University Association for Contemporary University Studies.

Describing itself as a place for “informed analysis, comment, dialogue and debate on all things European”, Ideas on Europe is intended as a non-partisan, multi-national, not exclusively political portal for academics working in the field of European Studies – taking in politics, economics, history, sociology, public policy, culture, geography and more – to engage with those of us outside the ivory towers as well as those within.

At the moment we’ve got nearly 40 contributors on board – a number that’s set to rise considerably – ranging from postgrad students to named chairs at high-profile universities. Some of them have begun to make their first forays into blogging, with posts from Jaani Kaerne (from the University of Tartu in Estonia), EUoplocephalus (from the University of Surrey in the UK), and (in German) Vanessa Buth – as well as a few from me – leading the way.

Among even this initial contributor base, there is a broad range of expertise and experience – with blogs dedicated to subjects like welfare, migration, security, energy, north Africa, and education, as well as more generalist contributors. Now that the site is going public, we should start to see a bit more activity from these early adopters.

Many of the areas we aim to end up covering are currently sorely under-represented in the world of Euroblogging – not to mention the relative lack of academic contributors to the various online debates, most of which are currently dominated by a combination of enthusiastic amateurs and professional political types – so I very much hope that those of us who’ve been active in this section of the internet give the site and its contributors our support, encouragement and advice as it starts to get off the ground over the next few months. Not least because the vast majority of our contributors have never blogged before – nor, indeed, taken part in online discussions.

I’ve already answered some questions about Ideas on Europe’s aims and intentions over at Kosmopolito (which now has its own presence on the new site) and also at Blogactiv, but naturally enough, I’m happy to answer any more that anyone may have here.

Another small hurdle for the much-beleaguered treaty to overcome:

the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law (Grundgesetz – GG) insofar as the Bundestag and the Bundesrat have not been accorded sufficient rights of participation in European lawmaking procedures and treaty amendment procedures. The Federal Republic of Germany’s instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force.

And so the ratification of the Lisbon Treaty is to be yet further delayed while Germany rejigs a few bits and pieces of its own constitution to accommodate it. Which, depending on how long Germany takes to sort this out, could mean that the treaty is delayed long enough for there to be a Conservative government in the UK before Lisbon has been fully ratified, which would mean a UK referendum, which would mean Lisbon’s rejection by Britain and yet another crisis for the EU. Fun fun fun.

There’s lots more in this genuinely fascinating ruling that is pretty much guaranteed to be seized upon by those of an anti-EU persuasion – even though the real issue here is as much Germany’s strict constitution as any problems with the expansion of EU powers. The ruling also helps clarify a number of issues, as well as point to more issues of the EU’s structure and identity that really need to be clarified by the EU itself.

First up, the EU’s crisis of identity and purpose – as I’ve noted many times, the EU itself doesn’t know what it is for, so little wonder it’s got a rather confused structure:

The structural problem of the European Union is at the centre of the review of constitutionality. The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon, so that meanwhile in some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

Note, dear eurosceptic friends, that “analogous to a state” does not mean “is a state” – and note also that “a shape that corresponds to that of a federal state” does also not mean “is a state” (and also that federal states can take many forms – their defining characteristic being the importance placed on devolved, state/regional levels of governance over that of a central authority).

Indeed, this ruling seems to utterly preclude the creation of a European superstate – at least, not without a fundamental change to the German constitution, ratified by referendum (that’s how I read this, anyway):

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority. In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law.

…The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.

…The authorisation to transfer sovereign powers to the European Union pursuant to Article 23.1 GG is, however, granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility.

That, to me, pretty much categorically rules out any EU superstate – while allowing for further integration, up to an indeterminate level (yet to be defined, but before the stage at which Germany’s ability to “politically and socially shape the living conditions” of its people is lost) at which a popular vote and alteration of the German Constitution would become necessary. Later, the EU’s current nature is more clearly defined:

With the present status of integration, the European Union does, even upon the entry into force of the Treaty of Lisbon, not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states to which the principle of conferral applies…

With the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will remain a sovereign state. In particular, the substance of German state authority is protected.

There we have it – fairly categorical, that. And if anti-EU types are happy to use German politicians to claim that 84% of laws stem from the EU, I think it’s only fair for those of us of a less vehemently anti-EU persuasion be allowed to quote these German judges repeatedly when countering claims that the EU is becoming a superstate.

Moving on, the European Parliament also comes in for some stick, largely for still being ineffective, under-developed, and uninfluential – though this is seen as a good thing, as too powerful a European Parliament, runs the logic, could claim greater democratic legitimacy within the EU decision-making process than the governments of the member states working together behind the scenes via the Council and Commission, and thus reduce their freedom of action (the EU’s “democratic deficit”, in other words, is actually preserving the sovereignty of the member states…):

Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction. Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states. It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect. Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund, further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

And, just to underline yet further how an EU superstate is not on the cards:

The European Union must comply with democratic principles as regards its nature and extent and also as regards its own organisational and procedural elaboration (Article 23.1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law). This means firstly that European integration may not result in the system of democratic rule in Germany being undermined. This does not mean that a number of sovereign powers which can be determined from the outset or specific types of sovereign powers must remain in the hands of the state. European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. To the extent
that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

Oh, and we’ve also got a categorical rejection of that myth that the Lisbon Treaty has the potential to become a self-amending enabling act – for this would be against German constitutional law:

The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz). The act approving a treaty amending a European Treaty and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity.

There’s lots more of interest there – though precise interpretations of the significance of many of the details are a tad tricky for me to provide with my, *ahem*, less than perfect knowledge of German constitutional law. Nonetheless, it’s a bit of EU geek heaven – and, I’m sure you’ll agree, a lot of those definitions of what the EU’s competences are and should be (as well as the implicit restrictions made on certain aspects of future European integration) are likely to prove invaluable in the years to come as the EU continues to try and work out its purpose and direction.

Because, lest we forget, Lisbon actually is really little more than the tidying-up exercise that it has been claimed as. Yes, it introduces a few new aspects that some may see as worrying – but it still hasn’t solved the fundamental problems of EU governance and the relationships between the member states that have arisen since the expansion to 25 (now 27 – and soon likely to be 29). Almost as soon as Lisbon is ratified, work will have to begin on its successor – and these rulings by the German Constituional Court will, with any luck, provide useful guidelines for the next batch of EU reformers.

Over at his Economist blog, Charlemagne asks “Why it is anti-EU to suggest that the European Parliament does not work very well?”

Herein lies one of the most fundamental problems of the EU debate – something to which I seem repeatedly to return.

The EU is an incredibly complex socio-economic political experiment – a type of regulatory/governmental body unlike anything that has ever been tried before. It is made up of myriad institutions and semi-official bodies, many of which have vast areas of overlap both with each other and with national governments. Good chunks of the EU machinery work only through sharing staff with the agencies, civil services and governments of the member states (the Council being made up of ministers from the member states, the Commission relying on the law-drafting powers of civil servants from the member states, and so on).

At the same time, the EU works across a vast array of policy and regulatory areas – agriculture, fisheries, monetary policy (in some member states, at least), migration and immigration, trade, security and justice, competition and business, aspects of education, sporting and cultural events, and on and on and on.

And yet, whenever the merits of the EU are discussed – especially in the mainstream media – it is presented in simple, confrontational black and white terms. You are either for the EU, or you are against. A eurosceptic or a europhile. Pro-EU or anti-EU.

Like Charlemagne, I’ve been accused of being both a eurosceptic and a europhile in my time – I describe myself as loosely pro-EU, so to some of those in the anti- camp, that makes me a europhile; yet I frequently criticise the EU, so to some of those in the pro- camp I am a eurosceptic.

Yet both europhiles and eurosceptics (and especially their most fervent elements, the withdrawalists and the superstatists) represent the extremes of opinion on the EU. It’s like presenting a jury in a trial with only two alternatives – either let the accused off Scott free or execute them, with no option for fines, community service, rehab or prison sentences. (To make matters worse, although there is a sizable minority of eurosceptics who are actively anti-EU and advocate either withdrawal or its abolition, I have come across very few uncritical europhiles – an imbalance that distorts the debate yet further.)

The presentation of the arguments about the EU in such a manner is not just misleading – it is also dishonest. The choice is not between a federal European superstate and complete withdrawal – yet it suits the extremes on both sides to play up this false binary choice. The europhiles warn of the dire consequences of international isolation should we not back further integration, while the euroscptics warn of a loss of sovereignty and national identity should we continue to allow the EU to expand its influence.

Neither option has to be the case – nor is either option likely in an organisation made up of 27 member states where vetoes and unanimity ensure that almost all decisions are watered-down compromises. Yet these extremes are pretty much all we are ever told about – the dire danger of passing the Constitution / Lisbon Treaty is to move ever closer to the superstate; the dire danger of not passing it is the breakup of the EU itself and a descent into the bad old days of national rivalries and protectionist squabbles. This is nonsense.

Yet in the public debates about the EU there seems to be no room for any shades of grey – indeed, in my experience of doing media punditry about the EU, extreme views are positively encouraged to “liven up” a subject usually (and correctly) considered rather dull.

The idea of a political system that works pretty much entirely via compromise and cooperation, as the EU does, seems anathema to a press that’s always keen to play up political differences and conflict. When faced with a political organisation that, on the surface, seems more or less monolithic (”the EU” being shorthand for the European Parliament, Council, Commission, Court of Justics, or any of its other institutions and agencies depending on the context – sometimes even individual Commissioners and MEPs, and occasionally even institutions that have nothing to do with the EU), the press – and in turn the extreme pro- and anti-EU groups who find such a situation to their advantage – has created a conflict between two artificial extremes in order to force the debate to conform to anachronistic preconceptions about how political discourse is conducted that are entirely inappropriate when approaching something as innovative and unique as the EU.

I remain convinced – and the continued falling turnout at EU elections tends to support this – that the vast majority of people neither really know nor care about the EU enough to form an opinion one way or the other, and that this artificial binary choice between pro- and anti- is serving only to put more people off. But at the same time, anyone who starts looking into the EU with an open mind – as I like to think I have tried to do – will end up (if they are not tricked by the vast amounts of disinformation that seems to swamp all EU debate into believing things that are simply not true) somewhere in the grey middle ground, neither supporting it entirely, nor wishing for it to be done away with. One of the reasons for the continuing decline in turnout at EU elections, I’d suggest, is precisely because voters feel they have to decide whether they are pro- or anti-EU, yet mostly feel neither.

These people, wavering halfway between supporting the EU and thinking it’s a bit rubbish in places, seem to lack a convenient moniker. They are neither europhiles nor eurosceptics. But there is a perfect term for them – they are the majority.

Last week on the BBC’s Question Time, eurosceptic Conservative MEP Daniel Hannan mentioned 84%; UKIP leader Nigel Farrage said it was 75%, the figure most often mentioned by anti-EU types (such as French National Front leader Jean Marie Le Pen or the Libertas Party) is that 80% of our laws come from the EU, while in a speech elsewhere last week, Conservative leader David Cameron said that “Almost half of all the regulations affecting our businesses come from the EU”.

These figures (or, at least, figures in this rough ballpark) are widely accepted, with everyone from universities to charities seeming to accept them at face value.

But are any of them actually true? And which is it? 84%? 80%? 75%? 50%? Or some other figure? Because they can’t ALL be right.

Daniel Hannan: 84% of all laws come from the EU

Let’s take the biggest figure first. If 84% sounds ridiculously high, that’s because it is. Even eurosceptic thinktank Open Europe have dismissed this claim as unrealistic – explaining in detail where the calculation originated.

In short, it comes from a reply by the Parliamentary Undersecretary of the German Parliament, Alfred Hartenbach, given on 29 April 2005 – relating specifically (and exclusively) to Germany, where he stated that from 1998 until 2004, 18,187 EU regulations and 750 EU directives were adopted in Germany. During the same period the German Parliament passed in total 1,195 laws (as well as 3,055 “Rechtsverordnungen” – which are like Primary and Secondary legislation). This was seized on by former German President Roman Herzog and Luder Gurken of the Centrum für Europäische Politik, who used these figures to work out 84% of all German laws originate in Brussels. As Open Europe explains:

750 (directives) + 18,187 (regulations) = 18,917 EU legislative acts
1,195 (Gesetze) + 3,055 (Verordnungen) – 750 (directives) = 3,500 German legislative acts
= 84%.

The 750 directives were substracted as they require seperate implementing laws in Germany (assuming a directive/implementing law ratio of 1:1).

Open Europe goes on to explain why this figure is, at best, misleading. And remember, Open Europe is a eurosceptic thinktank:

to conclude that 4 out 5 laws originate in Brussels is probably a step too far. Germany, for instance, is a federal system, meaning that the individual Lander has substantial powers to legislate autonomously. The many laws adopted on the Lander-level would have to be included in any all laws count, which isn’t the case here. In addition, this count says nothing about the nature of the laws.

It’s also important to keep in mind that the EU’s powers are mainly regulatory, as opposed to budgetary. This means that most issues that relate to spending and taxation (health bills, crime bills, educational reform, pensions, welfare, etc) – the “wallet” issues if you will – are mostly beyond the realm of the EU, but must also be included in any count that includes all laws.

So, the 84% figure is based on a calculation about German laws (and is therefore not directly transferable to Britain, as Hannan and others would like us to believe), and that calculation in any case left out a huge chunk of German legislation, rendering the final figure utterly obsolete.

So the 84% figure can safely be discounted.

UKIP: 75% of all laws come from the EU

Next up, the second highest figure. Where did UKIP get their 75% claim from? Well, handily they provide a video on YouTube which shows it comes from Hans-Gert Pottering, EPP MEP and President of the European Parliament from January 2007 to June 2009:

“If we were not that influential,” the subtitles show Pottering as saying, “then we would not be the legislator of 75% of all laws in Europe.”

But where it suits UKIP’s purpose to interpret this as literally meaning that, EU-wide, 75% of ALL laws stem from the EU, had they included more of Pottering’s speech the context – and therefore the meaning – would have become far more apparent. For what Pottering was actually saying was that the European Parliament (not the EU) legislates on 75% of laws *passed by the European Union*. Not passed by EU member states – just by the EU itself, at EU level. Because the European Parliament has little say in something like 20-25% of EU legislation (something the Lisbon Treaty would rectify, but that’s for another day). German speakers will also be able to confirm that the subtitles on UKIP’s video of Pottering are not 100% accurate.

So the 75% figure does not apply to the percentage of laws in individual member states that stem from the EU, but the percentage of laws that stem from the EU that the European Parliament has a say in. That’s an entirely different kettle of fish – and so the 75% figure can safely be dismissed as based on a (deliberate?) misunderstanding.

David Cameron: “Almost half”

It is worth noting again here that Cameron says “almost half of all regulations affecting our businesses come from the EU”. Some laws may be regulations, but not all regulations are laws, so we need to tread a little more carefully here. Where did Cameron get his figure from? I genuinely have no idea. I can’t track down an original source for it anywhere – though it is a claim made on the website of the Institute of Directors – albeit with the qualification that “estimates vary”, something Cameron neglected to mention.

But what is the real figure? How much say does the EU have in business regulations? Well, handily enough, last month the British Chambers of Commerce produced a report (PDF) investigating precisely this issue, “Worlds Apart: The British and EU Regulatory Systems” – their seventh annual report into the subject, and the fifth comparing the British and EU systems. Their conclusion?

In terms of the number of regulations, the EU this year accounted for only 20%. The reduction from the previous EU level of about 30% is the primary reason for the overall decline in 2007/8.

Hmmm… Only 20%, you say? And the proportion of EU regulations is declining, you say? So where did Cameron get his “almost half” from?

The House of Commons Library’s 9.1% claim

Also on Question Time last week was Europe Minister Caroline Flint, who trotted out the usual defence against the above eurosceptic claims about the EU’s influence that just 9.1% of UK laws stem from the EU. the report in question can be found as a PDF in the depths of the UK Parliament site.

The study was conducted by the (politically independent) House of Commons Library between 1998 and 2005, based on the statutory instruments passed with references to European legislation, because “The vast majority of EC legislation is enacted by statutory instruments under section 2 (2) of the European Communities Act.” It also helpfully breaks these laws down by department – the most affected of which are Defra – which deals with the Common Agricultural and Common Fisheries Policies, so no surprises there – and the Department of Trade and Industry – hardly surprising with the Common Market and all. Both departments saw about 50% of their legislation having some kind of EU origin – which could, via the DTI, be where Cameron got his “almost half” figure from, perhaps?

But is the 9.1% figure accurate? Is just looking at statutory instruments fair, when this means that normal legislation, via parliament itself, can be left out? Open Europe (in the same post where they discussed and dismissed the 84% claim) make four key points:

1) They do not seperate between budgetary and regulatory legislation, therefore comparing apples and oranges.
2) They also compare apples and oranges in another respect: Directives are usually far-reaching measures with a big impact on the economy. SIs, in contrast, can cover a variety of issues, including public administration – for example a road closure or changing arrangements for parish elections.
3) EU Regulations (as opposed to Directives) usually don’t give rise to a new UK law but are directly applicable. Therefore, most EU Regulations are not included in the 9% figure.
4) One Directive does not mean one SI. The Motor Vehicles Regulations in 2007 implemented four different Directives, for instance, making a one-for-one comparison tricky.

On point 1), of course, the EU has no say in the British budget and has no revenue-raising powers, so I’m not sure what they’re trying to say. On point 2) they have a point – but how do you measure the “far-reaching” implications and economic impact of a directive, exactly? On point 3) they also have a point – which might explain why the British Chambers of Commerce have a higher estimate of 20%. Point 4), if we’re hunting down the percentage of British laws that have an EU origin, is irrelevant.

But considering that we’re looking for a percentage of the *number* of laws that stem from the EU, it is worth bearing in mind that Statutory Instruments make up the bulk of all UK legislation, with an average of around 3,500 passed every year for much of the last two decades. In 2008, 3,389 Statutory Instruments were passed, while the UK Statute Law Database lists 2,414 results for the same year. With no study (that I’m aware of) having been conducted on how many of those have an EU origin, it is hard to tell the percentage.

However, with Statutory Instruments making up the bulk of UK legislation, and with most EU legislation brought into force via this method (having already been passed at EU level, there’s generally no need for EU legislation to then be re-enacted at national level, after all), it’s no great leap to suggest that the final percentage wouldn’t be that much higher than 9%. Indeed, Labour MEP Richard Corbett has noted other studies in other EU member states:

6.3 percent according to the Swedish parliament, 12 percent according to the Finnish parliament and between 12 and 19 percent according to the Lithuanian parliament

This would suggest that something in the region of 10-20% would be a fair guess for the UK as well (a range that has the added benefit of being backed up by the British Chambers of Commerce’s recent study of regulations).

Bonus: How much does the EU cost us?

I’ve already discussed the actual costs of EU membership based on the UK’s annual contribution, showing that the net cost is around £4 billion a year. But what about the cost to business and to the economy?

This is, of course, a hugely complex issue. How to estimate the impact of legislation on an entire country’s economy? It’s practically impossible, as without a control sample we can’t tell how beneficial or detrimental any individual piece of legislation may be – let alone the impact of other pieces of legislation that may affect the same general area.

Nonetheless, the more enthusiastic among you may have noted, in the Open Europe piece quoted above, that the same post also gives Open Europe’s own estimate that “72% of the cost of regulation is EU derived”. Is this fair? Well, it’s only an estimate, and I haven’t seen their workings, so it’s hard to tell.

However, let’s return to that British Chambers of Commerce report, also linked above. What do they have to say about the costs of EU regulation?

By value, EU legislation was only responsible for about 0.1% (£1.9m) of regulatory net costs in 2007/8 and virtually all business burdening regulatory activity can be attributed to Whitehall.

Oh… would you look at that?

Conclusion

No one agrees on how much legislation and regulation stems from the EU. The 9.1% figure stated by the House of Commons Library is too low, as it only covers Statutory Instruments, not ALL laws; the higher figures of 84%, 75% and even 50% claimed by the likes of Hannan, Farrage and Cameron are based on miscalculations, misunderstandings, or sources unknown, and often derive from parts of the EU other than just the UK – and so with no hard evidence to support them must be dismissed as either too high or inapplicable to the British situation.

What is the true figure? No one knows. So any claims that state hard and fast percentages should – if we’re being intellectually honest – be treated with equal suspicion.

Not that any of this is likely to change the opinions of those eurosceptics convinced of the malicious and all-pervading influence of the EU on our daily lives, of course. But still. I’ve looked for the evidence, and this is what I’ve tracked down. If you know different, please do let me know – I’m interested in the truth of the situation, as without total transparency, such misinformation, misunderstandings and resentments are only going to grow.

I’ve done a lot of UKIP bashing on this blog over the last six years. I’ve ridiculed and attempted to debunk numerous eurosceptic claims. After all, I think that the idea of European Union (in its broadest possible sense) is a good thing, and I firmly believe that as long as some form of European economic/political organisation exists it is in Britain’s (and every European country’s) best interest to be a part of it. I also hope that, down the line, such international/supranational cooperation can be expanded far beyond Europe’s borders. Nationalism is, for me, an outmoded way of doing business, and detrimental to the best interests of the people of all nations – just as are all exclusionary ideologies, be they racist, sexist, homophobic or whatever. I am an internationalist and a humanist – again, both in their broadest possible sense – and so cannot support what I see as the parochialism of the nationalist/”patriotic” parties of right or left.

However, despite my dislike of UKIP, the BNP and other withdrawalist/anti-EU parties (of which these are the principle two in the UK), anti-EU and eurosceptic voices have a vital role to play.

The makeup of the European Parliament during the last five years has been sorely unrepresentative. Its racial makeup is nowhere close to mirroring that of Europe as a whole, with groups with sizable minorities left with nothing like the percentages of MEPs that one would expect, were the EP to mirror European society. Women are, as in most democratic societies, still hugely under-represented at EU level; there are few openly gay MEPs; few Muslims; only one Roma MEP despite this group being one of the largest and most persecuted of Europe’s minorities.

Eurosceptics – using the term in its broadest sense – are also sorely under-represented. The no votes in France, the Netherlands and Ireland are proof that there is a groundswell of discontent with the present EU system, and this discontent sorely needs to be aired more frequently in the European Parliament. Do a trawl of the blogs and you’ll soon see that even the most pro-EU bloggers will often violently criticise all kinds of aspects of the way the EU currently runs, from the obvious travesties – like the Common Agricultural and Common Fisheries Policies – through to issues of democratic representation (it takes 800,000 Germans to elect one MEP as opposed to just 80,000 Maltese, for example). With the EU still seriously under-reported in almost every member state, and with so few sceptical voices around to form an opposition – one of the most essential elements of any healthy democratic system – little wonder that there is so much public frustration. The worries of the people are not, in the eyes of the people, being addressed.

The EU is currently in a period of crisis. The failure of the 2001 Treaty of Nice to resolve the transition to a union of 25 rather than 15 was followed by the failure of the Constitution and Lisbon Treaty to mop up the mess, yet now the Union is of 27, with yet more queueing up to join. The EU is now a Union of half a billion people, one of the largest and most powerful economic blocs in the world, and yet is working on mechanisms designed for a much, much smaller organisation. Resentment has been building for years – not just among the people, but also among the governments that head up the member states. The Treaty of Nice, the Constitution, the Lisbon Treaty – these were all meant to resolve these tensions, and all have failed.

Even if the Lisbon Treaty does end up coming into force, still countless problems remain unsolved. There are still some member states that long for closer political union, while others desire little more than a trading bloc based on the Common Market; the current system of budget contributions still sees relatively wealthy western European member states receive far more funding than the struggling post-communist newcomers of the East. France, one of the richest member states, still receives a hugely disproportionate chunk of Common Agricultural Policy money, while farmers in Romania struggle by on little more than a subsistence level. And all the while, there remains no consensus on where the EU is heading – on what the EU is actually for.

Over the next five years – Lisbon Treaty or no Lisbon Treaty – these problems are all going to have to be addressed, and it is the MEPs who we are meant to be electing in a couple of weeks’ time who are going to have to scrutinise the plans and proposals that are put forward to resolve them. If the European Parliament is made up of a majority of unthinking europhiles, of fervent internationalists, then this scrutiny is not going to be intensive enough. Imagine a House of Commons made up of 80% Labour or Conservative MPs. That would not be healthy for democracy, but more importantly it would not be the kind of check that is necessary to prevent bad legislation and bad constitutional reforms from being passed. But with the lack of eurosceptic voices in the European Parliament, that is effectively the situation we have at the moment.

We sorely need more critical voices if the EU is ever going to become the kind of genuinely positive force that it could – and should – be. We need more MEPs like Danish eurosceptic Jens-Peter Bonde (now sadly retired, though still active in the field of EU politics), and even like UKIP leader Nigel Farage – intelligent, sharp critics of the project who can home in on flaws and highlight things that the EU is doing wrong. Yes, they may have a tendency to over-egg the pudding, to play to the gallery, and to blow things out of all proportion to make petty political points – but they also highlight genuine concerns and, often, genuine problems.

If we don’t know the problems – and if these problems are not brought into the light – then abuses and mistakes will simply continue unnoticed. Until, that is – as British MPs have found during the last few weeks of the expenses scandal – something happens that shows just how bad the problem has got, and brings the entire system to the brink of collapse.

If you don’t listen to criticism, you deserve to fail. So though I may not agree with the anti-EU brigade, and though I will continue to mock them when they make mistakes and call them when they make unjustifiable claims, they have an essential part to play. They are the EU’s opposition, and in any respectable political system a vocal opposition is something to be encouraged, not suppressed. Even if they are wrong.

(Alternate post title: Westminster MPs: Not as corrupt as UKIP MEPs…)

The last few days of revelations about Westminster MPs’ taking advantage of lax expenses rules – many of the allegations decidedly sexed-up, a number of them mistaken, but nonetheless indicative of a long-running problem with the way politics is conducted in the UK and elsewhere – have unsurprisingly been hitting the opinion polls hard.

As such, old predictions of UK voting intentions at the European Parliamentary elections, now just three weeks away, should now be entirely discounted. The latest polls shows both Tories and Labour taking a -4% hit (and that was conducted a few days ago – since when a whole bunch of new stories have appeared about alleged Conservative abuses).

The only likely impact of this constant stream of stories about Westminster MPs seemingly being on the make – especially coming as it does so soon before an election – is a major boost for the smaller parties, both through reduced turnout with a public now even more disillusioned with politics than they were before, and through misguided protest votes. Hell, even old Tory grandee (and bogeyman of the British left) Norman Tebbit has explicitly warned right-wingers not to vote for his party at the European elections to register their disgust.

This is, of course, entirely missing the point that if you want to punish the actual transgressors in this expenses scandal then to vote out MEPs is rather like spanking your niece because your nephew stole your wallet. “Ha! I’m punishing someone who’s got nothing to do with the wrong that’s been committed! THAT’ll learn them!”

Most likely beneficiaries of all this? Well, disgruntled Labour voters are likely to shunt either to the BNP or to the Greens, while disgruntled Tories are more likely to head to the other major centre-right eurosceptic party – often a leech on Tory votes in European polls in any case – UKIP. A party its hard not to see the strongly anti-EU Tebbit having a great deal of sympathy for in any case, and which was – until this little furore – likely to lose a good number of MEPs at the upcoming elections thanks to a combination of David Cameron (largely at the behest of Shadow Foreign Secretary and ex-Tory leader William Hague) taking the Tories in a more eurosceptic direction again and the loss of the Kilroy-Silk factor, which so boosted their media coverage and vote in the 2004 elections.

But, lest we forget, UKIP is a party with only one competent elected politician – its articulately populist, platitude-spouting leader Nigel Farrage. It also has a tendency to pick candidates, like MEPs Ashley “convicted benefit fraudster” Mote and Tom “charged with money laundering and false accounting” Wise, who put even the worst Westminster politicians to shame. (And that’s not to mention the on-going infighting that has plagued the party since its inception, including ongoing allegations of seemingly institutional corruption.)

Yep, UKIP’s pound symbol logo does seem rather appropriate…

Then again, to be fair, a vote for the Tories in the European elections is a wasted one anyway. Having pulled out of the EPP, the largest centre-right group in the European Parliament, in order to have any influence at all in Brussels and Strasbourg they need to join another political group (as without EP group membership, securing the all-important committee places where all the real work goes on, Tory MEPs will be effectively powerless). The only other viable existing centre-right EP group? Independence/Democracy – leader? One Nigel Farrage… Which means the Tories won’t be able to join it, which means they’re stuck on the fringes with other outcasts like the former members of the right-wing Identity, Tradition, Sovereignty Group – such charmers as Jean-Marie Le Pen, Alessandra Mussolini and assorted other fascists.

The simple solution? Check out Votematch.co.uk to get an idea of which parties have policies you might like (as these are often rather different at European level), then check your local candidates for the European Parliament, visit the invaluable Votewatch.eu to check the performance of your local sitting MEPs, and cast your vote based on the character, policies and dedication the of candidates the parties are putting up.

No, you can’t vote for an individual candidate in the European elections (an horrific flaw in the system that needs rapid alteration), but you can make a moderately informed choice about the likely value those on offer are going to provide to their constituents. Have a poor attendance record, like UKIP MEPs Godfrey Bloom, Trevor Coleman and John Whittaker, the Lib Dems’ Baroness Nicholson, the Tories’ Jonathan Evans and Caroline Jackson or Labour’s Eluned Morgan? Think hard about whether they’re worth your vote.

Me? As ever, I’m not endorsing any party. In fact I’m still sorely tempted not to vote at all, thanks purely to the British electoral system for EP elections preventing me from endorsing an individual candidate whose jib I like the cut of. But that way, thanks again to the awfulness of the party list proportional representation system that the UK uses for these things, lies more seats for the likes of UKIP and even (possibly) the BNP. With the Tories out of the EPP, to vote for some sensible MEPs to represent the UK is essential lest the country become a laughing stock. The question now is how to play the system. And for that, the greater the turnout, the less the chance of the smaller, more extremist parties getting representation. I may not like the bigger parties either, but at least they’re (usually) not as mad.

In short: No matter what your political outlook, your vote is important. But your vote is for the next five years, not the last five days. Don’t let short-term disgust with an unpleasant scandal affect which box you tick when that vote is for members of an institution who have nothing to do with the scandal in question. Base your vote instead on the performance of those politicians and what you want to see happen at that institution – because the European Parliament, no matter how much national politicians like to use it as proof of their domestic support, is a very different beast to that in Westminster. Want to punish corrupt Westminster MPs? There’s a general election less than a year away. You’ll have your chance then. That’s the way democracy works.

/stating what should be the obvious…

For those coming in late, the superstate series so far:
- The danger of Jean Monnet
- Why EU superstate conspiracy theories are nonsense
- Four points and a question for eurosceptics who believe in the advancing EU superstate
- EU competence creep, the spectre of the superstate, and how governments actually work

As I’ve set out several times, I don’t see an EU superstate as a realistic possibility at any point in the next hundred years – not even the next three hundred years. For me, this isn’t a problem. Our grandchilren’s grandchildren’s grandchildren are unlikely to have any of the same concerns that we do today – and as the Anglo-Scottish union of 1707 has proven nicely, national/cultural identities are more than capable of surviving political union (hell, in Scotland’s case the national identity has arguably got even stronger since the Acts of Union). As such, if – over the course of the next few centuries – it proves to be in the best economic interest of the peoples of Europe for a “superstate” of some description to emerge from the present EU, so what? We’ll all be long dead.

But if such a superstate were to emerge, what would it look like? On one of those previous superstate posts (all of which have got healthy discussions in the comments – despite various sidetracks into insane detail about trucking and jam), helpful contributor French Derek argues that

“a federal state of 27 nations, each with their own languages, cultures, economic models, etc would be impossible to govern”

However, there are two cases where something similar to this has come about – Russia and India. Could these provide us with a vision of a future European superstate and clues about a model to follow?

Where the EU is made up of 27 member states with 23 official languages (and a bunch of other, less widely-used ones ranging from Cornish in the UK and Frisian in Denmark/Germany through more widely-used unofficial languages like Russian, Ukrainian and Romani), the Russian Federation is made up of 21 semi-autonomous republics (plus various self-governing cities, oblasts, okrugs, etc. making up a total of 83 federal subjects) and has 27 official languages), while India is made up of 28 states (and a few additional semi-autonomous regions) with 29 languages spoken by more than a million people (and 122 spoken by more than 100,000). Neither country – much like the EU – could be considered to be ethnically or religiously homogenous.

But the fact remains that both federal states continue to function, despite insanely complex internal demographics (far more so than the United States of America – the federal model most often used as a point of comparison with any future EU superstate). Naturally, the size of their populations are not entirely comparable – Russia’s population is c.145 million (about a third of the EU’s 500 million) and India’s c.1.17 billion (about twice the EU’s population), while the US’ population of c.300 million is about two thirds that of the EU. But still – India’s size is similar at 1.3 million square miles as opposed to the EU’s 1.6 million (compared the the USA’s 3.6 million and Russia’s 6.7 million) – so who’s to say that either population or geographical area is a factor in the functioning of an effective federal state?

Of course, in the case of both Russia and India (as well as, arguably, that of the US), their current situation came about after centuries of war and conquest – unlike the EU’s entirely peaceful formation – and whether either Russia or India can be considered to be effectively governed is another matter entirely. But Russia, India and the US nonetheless are all examples of large federal states that manage to work – in India and the US with more or less effective democracies that have both seen minorities elected to the highest office in the land (Obama in the US, obviously, but also Indian Prime Minister Manmohan Singh, a Sikh). In both India and Russia (and arguably some parts of the US as well, with the various secessionist movements), the various federal states and regions have often retained a strong sense of identity and autonomy – just as have Scotland and Wales (among others) in the much smaller federal state that is the United Kingdom. Both India and Russia also retain some violent paramilitary nationalist/minority elements that occasionally cause trouble (much like in the federal state of Spain with ETA, or the UK with the various Irish republican groups of the last few decades).

So large federal states with complex demographics can exist and function with the constituent parts retaining their own national/cultural identites.

But can they hold together? India was far larger than it now is when under British rule – once the Raj left 60 years ago, Partition tore the country in three in a bloody horror the tensions of which remain to this day. With the end of the Cold War and fall of the Communist Party, various parts of the old USSR (Belarus, Ukraine, Georgia, etc. etc.) broke away from Russia – and other regions, most notably Chechnya, have continued as part of the federation only under threat of force. The United States was torn apart by civil war less than a century after its formation.

Indeed, it’s arguable that Russia and India continue to hold together largely due to fear of “the other” – the perceived threat of the West in Russia (hence the rampant popularity of the nationalistic Putin and co), and the genuine threat of Pakistan in India (the threat of India in turn acting as a unifying device for the fragile federation of Pakistan). The United States originally came together thanks to the threat of Britain, while England emerged from the Heptarchy under the threat of the Vikings, France from the threat of England, Spain and the Holy Roman Empire, modern federal Germany from a series of unifying wars with various neighbours under Bismark – and so on and so on.

In all cases, the sense of identity – “I am Russian”, “I am Indian”, “I am American”, “I am English”, “I am French”, “I am German” and all the rest – emerged due to a growing sense that another group of people were both somehow different and a threat. (Welsh national identity is a prime case in point – such a thing didn’t even exist until England started to invade what is now Wales, with the entire region made up of little more than warring tribes and principalities until they were given a unifying force, and existed as one kingdom only once – and then for just seven years – until the English conquest was completed and Wales in its current form was created. The same unifying, nationalising effect can also be seen in Scotland, where medieval English invasions likewise fostered a sense of Scottish national identity that helped bring the warring clans together.)

But what is the European Union’s threat? Who is “the other” for the EU that can foster a sense of European identity? With the current ongoing arguments over Turkish EU entry – not to mention the rise in tensions between Islam and the West of the last decade, the Islamist terror attacks in Madrid and London, and the perennial Europe-wide tensions over immigration – is “the other” for the EU going to be Islam? With the increasingly frequent stand-offs between the EU and Moscow over energy supplies and the autonomy of states on the European fringe, could it be Russia? For a while under the Bush administration and in the aftermath of the invasion of Iraq, it even looked like it might be America.

But whatever the “threat” – real or simply perceived – might turn out to be, it is hard to see a truly European identity begin to emerge without a greater sense of what being European is *not*. “We are American because we are not British”, “We are English because we are not Viking”, “We are Welsh/Scottish because we are not English” – this is how national identity has always begun.

So, while I disagree that the EU is too big and complex to form a superstate, I do maintain that such a thing remains unlikely. You can legislate to create political and economic integration, you can forge agreements between different territories and different cultures – but you cannot legislate or negotiate to build a sense of identity. Without that sense of identity – “I am American”, “I am Indian”, “I am Russian” – none of those three existing sprawling federations would be able to hold together. Of the EU’s 500 million citizens, how many really feel “European” to the extent that an American feels American, a Russian Russian or an Indian Indian? Hell – we can’t even agree on what Europe is – how can we know what it is to be European?

In our last little discussion of the likelihood of an EU superstate (in amongst and partially as an offshoot of the rather silly sidetrack about jam), Josef noted that

there is a concern that this is how the EU will form itself into a “superstate.” Not through a series of demi-democratic treaties, but through a sort of slow, suffocating creep of boring, incomprehensible, impenetrable legislation. If you write a follow up post, Nosemonkey/J Clive, then I’d be interested to hear your take on this.

This is always a danger with any democratic system which relies largely on a more or less bureaucratic civil service to get things done. We like to think that all new legislation is debated and scrutinised by our elected representatives, dissected in minute detail and put to a vote considering only the best interests of the people – but it rarely happens like that.

In the UK, the vast majority of primary legislation is passed in the form of statutory instruments – new laws drawn up by civil servants and government ministers and put onto the statute books without (most of the time) parliament so much as being informed. In the UK in 2008 alone, there were 3,399 statutory instruments passed – that’s more than nine new laws a day that have come into existence without so much as a by your leave from an elected official. (That’s about average for the last 20 years, by the by – the number of statutory instruments began to creep up under Major, but have remained relatively constant since the mid-1990s, despite various claims that Blair used them more than any previous Prime Minister as another way of bypassing parliament.)

The vast majority of these statutory instruments are amendments to existing Acts of Parliament, fiddling with the details (most of them minor). Our last little debate got sidetracked on the use of apple geranium in jams other than those made with quince. Hardly the sort of thing – the logic goes – that it’s worth wasting parliament’s time with, and so precisely the sort of thing that would be sorted out in a statutory instrument. If the approval of British MEPs was needed for each of the law changes that statutory instruments bring in, then every one of the British parliament’s 646 MPs would have to go through more than five of the things every single day of the year – as well as all the major legislation, dealing with constituency concerns, being part of the government, holding the government to account and so on. (Remove those MPs who hold government office, it’d be more like 7 statutory instruments each to scrutinise and research the utility of per day – that’s a full-time job…)

In the EU, we have much the same problem. Having accepted the general principle that area X is best dealt with at EU level, it is impractical for MEPs to then scrutinise every subsequent tiny bit of legislation to ensure that it meets their high standards, and vote on every tiny clause about different types of fruit preserve in full session at the European Parliament. Because just as we, the people, delegate our powers of decision to our representatives at Westminster and Brussels/Strasbourg, so our representatives then delegate powers of drafting new laws to the various civil servants, be they in national civil services or the European Commission.

(At which point it’s worth noting that most EU legislation is not actually drawn up by the Commission – the EC only has a staff of c.38,000 – less than a third of that of the UK Department of Work and Pensions alone, and nowhere near enough to do everything that the Commission is accused of doing. Instead, pretty much all EU legislation is drawn up by the civil servants of the various member states, checked by civil servants in other member states, and then rubber-stamped by the Commission once it’s been looked at my enough bureaucrats in enough member states.)

And so in the normal course of events, yes – dozens of new laws will likely come into force every week without having been so much as glanced at by an elected official. But such developed social systems as ours could not possibly function any other way – unless you think that the civil service should be elected, and that it’s a practical possibility to find several hundred thousand people willing to campaign for such a thankless job (not to mention several hundred thousand people willing to turn out and vote on what would prove to be an almost daily basis as retirement and transfers necessitate by-elections to fill vacant posts…) And in any case, the general principles are already always voted on by elected representatives at both national and EU level – as long as they are doing their jobs properly, they shouldn’t vote through sweeping new powers that would allow unelected bodies or people to suddenly advance major changed without anyone checking them first. (Though that’s not to say that there isn’t always a danger that this could happen, as we found out in the UK only recently with the – thankfully defeated – Legislative and Regulatory Reform Bill, which would effectively have made parliament obsolete and allowed any government minister to make any law they liked, when they liked.)

When it comes to the EU, the real fear of competence creep was epitomised by this glorious clause (Article 308 EC):

If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

In other words, the EU could grant itself whatever powers it liked. Or, at least, it could after unanimous agreement from the governments of the member states in the Council, and after being passed by the elected representatives of the European Parliament – but most anti-EU types conflate Council, Parliament and Commission into one monolithic-sounding “EU” to make these things sound more scary.

So, for more powers to pass to the EU, even with the existence of the “competence clause”, you’d still need unanimous agreement between the governments of all 27 member states, plus a majority in the European Parliament. Hardly that scary – but even so, the Lisbon Treaty amended that same article (now Article 352) to clearly delineate (in line with the subsidiarity principle introduced with Maastricht back in 1992) just where competences lie between the EU and member states, as well as explicitly excluding common foreign and security policy as an area where the competence clause could be used to grant the EU more powers.

Oh yes, and Article 352 also introduced a new clause obliging the Commission to involve national parliaments in any moves to grant the EU more powers. So that’s unanimous agreement by all 27 member state governments, passing a vote in the European Parliament, and passing votes in the parliaments of all 27 member states before the EU can claim any major new powers for itself. Hardly a major worry.

In the meantime, life will continue as normal, with dozens upon dozens of minor changes to minor laws being brought into force merely by civil servants via statutory instruments and their equivalents across Europe – and then (despite some of the claims made in our last comment thread that alterations to jam legislation would require ratification by the Council, Parliament, and so on) amended just as easily if they turn out not to be workable.

Is there a danger that some of these laws will be bad ones? Of course there is. But at least they are generally being drawn up by civil servants who are experts in their field (rather than members of parliament who tend to be generalists), and at least they can be corrected with ease.

Is there a danger that such civil servant-drafted laws could slowly grant more power to institutions that we aren’t willing to give them? Well, a poorly-worded new law always has the potential to be misinterpreted. That’s what we have judges and courts for – if such poorly-worded laws are found, they can be challenged and struck down, if a simple amendment isn’t enough. After all, both the existing Article 308 and the proposed new Article 352 explicitly state that both the Council and the Parliament have to approve any new EU power-grab – and treaty law will always take precedence in such cases.

In short: Modern western liberal democracies are very complex systems, packed full of checks and balances that have been worked out over the course of many centuries. The EU is not a true liberal democracy, but shares many of its forms and functions. As such, I remain confident that there are enough checks and balances in place to ensure that the only way the EU will gain more powers is if the member states of the EU want to delegate more powers to it. It will not -can not – happen by accident. Unlike in the British system, where bad laws like the Legislative and Regulatory Reform Bill can easily slip through parliament if the government has a sufficient majority and MPs are sufficiently cowed, the EU has 27 additional chances of spotting them before they get anywhere near the statute books – something that the Lisbon Treaty would only have underscored by bringing national parliaments into the equation as well. Once again, it’s hardly the stuff of an impending superstate.