The EU - A Polity Out of Control?

cactus flower wrote:

Are you saying it is a HAL situation?

So should I welcome the EU to the collective of self-aware AI's?

seinfeld wrote:

Zhou_Enlai wrote:

Auditor #9 wrote:

In that last paragraph, what would be an example of a 'democratic control mechanism' failing? That many countries don't have referenda or what?

The separation of powers is a characteristic of modern democracies. This is in pursuance of Montesquieu's checks and balances approach. The Councils of Ministers has the final say on EU legislation and the Council of Ministers is comprised of members of each nation's executive. Where this can be done without reference to the European Parliament or to National Parliaments then the "democratic control mechanism", viz. the check imposed by the separation of the legislative and executive powers, has failed.

The EU is not a State.

The Separation of Powers as it exists in relation to the EU exists *within* member states, in that members of the European Council are accountable to their respective legislatures.

This is confused by the existence of the EU Parliament, which was never designed as a legislature. It became a representative assembly and was given the name 'parliament' to difuse the inevitable whinging that would arise when the Council began to make decisions.

That makes sense even if I would hesitate to call concern over the democratic deficit as "whinging".

Your analysis, however, does not contradict the point that the "democratic control mechanism" of legislatures approving legislation does not exist when the executives of the various countries can ratify legislation without reference to any legislature.

Zhou_Enlai wrote:

seinfeld wrote:

Zhou_Enlai wrote:

Auditor #9 wrote:

In that last paragraph, what would be an example of a 'democratic control mechanism' failing? That many countries don't have referenda or what?

The separation of powers is a characteristic of modern democracies. This is in pursuance of Montesquieu's checks and balances approach. The Councils of Ministers has the final say on EU legislation and the Council of Ministers is comprised of members of each nation's executive. Where this can be done without reference to the European Parliament or to National Parliaments then the "democratic control mechanism", viz. the check imposed by the separation of the legislative and executive powers, has failed.

The EU is not a State.

The Separation of Powers as it exists in relation to the EU exists *within* member states, in that members of the European Council are accountable to their respective legislatures.

This is confused by the existence of the EU Parliament, which was never designed as a legislature. It became a representative assembly and was given the name 'parliament' to difuse the inevitable whinging that would arise when the Council began to make decisions.

That makes sense even if I would hesitate to call concern over the democratic deficit as "whinging".

Your analysis, however, does not contradict the point that the "democratic control mechanism" of legislatures approving legislation does not exist when the executives of the various countries can ratify legislation without reference to any legislature.

...co-decision.

ibis wrote:

cactus flower wrote:

Are you saying it is a HAL situation?

So should I welcome the EU to the collective of self-aware AI's?

I'm afraid not - it is a manifestation of technique and so it is not self aware. Don't worry though, "self awareness" is just an idiosyncratic human archetype.

ibis wrote:

...co-decision.

Seinfeld just blew that out of the water with his analysis of the EU Parliament

Co-decision, where it applies, does go some way towards redressing the democratic deficit and re-introducing the democratic control mechanisms. Any chance of a link to the areas where it applies?

To my mind, where you have a parliamentary members as heterogenous as the MEPs then it is hard for the Parliament to act coherently. Also, where many citizens are unaware of what their MEPs voted on, what way they have voted and why they have voted that way (i.e., where they are far removed from the citizen and the primary legislature which that citizen votes for) they are not accountable for their actions and so the link between the legislature and its accountability to the citizen is severely damaged.

Zhou_Enlai wrote:

seinfeld wrote:

Zhou_Enlai wrote:

Auditor #9 wrote:

In that last paragraph, what would be an example of a 'democratic control mechanism' failing? That many countries don't have referenda or what?

The separation of powers is a characteristic of modern democracies. This is in pursuance of Montesquieu's checks and balances approach. The Councils of Ministers has the final say on EU legislation and the Council of Ministers is comprised of members of each nation's executive. Where this can be done without reference to the European Parliament or to National Parliaments then the "democratic control mechanism", viz. the check imposed by the separation of the legislative and executive powers, has failed.

The EU is not a State.

The Separation of Powers as it exists in relation to the EU exists *within* member states, in that members of the European Council are accountable to their respective legislatures.

This is confused by the existence of the EU Parliament, which was never designed as a legislature. It became a representative assembly and was given the name 'parliament' to difuse the inevitable whinging that would arise when the Council began to make decisions.

That makes sense even if I would hesitate to call concern over the democratic deficit as "whinging".

Your analysis, however, does not contradict the point that the "democratic control mechanism" of legislatures approving legislation does not exist when the executives of the various countries can ratify legislation without reference to any legislature.

Wrong again.

Directives and Regulations only become law in EU member states when they are transposed into national law by national parliaments. No action of the EU Council can have effect in Ireland without the approval of the Oireachtas. The Oireachtas can either agree to be bound by measures of the Council or withdraw from the EU.

Co-decision is an internal EU Mechanism that is designed to offer input into decision making rather than supplant the Separation of Powers machinery of individual members states.

This is as it should be. Decisions that effect the lives of Irish citizens should *only* be taken by the Oireachtas, and not the ragtag bag of failed TDs and reprobates that constitutes the EU Parliament.

seinfeld wrote:

Directives and Regulations only become law in EU member states when they are transposed into national law by national parliaments. No action of the EU Council can have effect in Ireland without the approval of the Oireachtas. The Oireachtas can either agree to be bound by measures of the Council or withdraw from the EU.

I am not mad into contradicting people but I am afraid I have to here. Directives and Decisions may become directly effective against the state, in whatever capacity it is acting (i.e. privately or publicly), if not transposed within the deadline set in the Directive.
A Regulation is directly effective without transposition. to quote the Treaties: "A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

Are you suggesting there is a provision in the Treaties which allows the Oireachtas to withdraw from the Treaties? I have never heard of such a thing.

Zhou_Enlai wrote:

seinfeld wrote:

Directives and Regulations only become law in EU member states when they are transposed into national law by national parliaments. No action of the EU Council can have effect in Ireland without the approval of the Oireachtas. The Oireachtas can either agree to be bound by measures of the Council or withdraw from the EU.

I am not mad into contradicting people but I am afraid I have to here. Directives and Decisions may become directly effective against the state, in whatever capacity it is acting (i.e. privately or publicly), if not transposed within the deadline set in the Directive.
A Regulation is directly effective without transposition. to quote the Treaties: "A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

Are you suggesting there is a provision in the Treaties which allows the Oireachtas to withdraw from the Treaties? I have never heard of such a thing.

There's no formal mechanism, but then there wasn't when Greenland left.

I thought Greenland left Denmark's control rather than leaving the EU. Greenland, as far as I know, was never a signatory to the treaty. I don't believe that a country can just opt out but then again I guess that would depend on the political realities at the time.

Anyway, Ibis, would you do me the favour of backing up what I said about Regulations being directly effective without transposition and certain Directives being capable of direct effect without transposition into national law?

I have delved into that pamphlet that is the Lisbon Treaty and I am happy to inform you all that the new Article 49A sets out a withdrawal procedure

Zhou_Enlai wrote:

I thought Greenland left Denmark's control rather than leaving the EU. Greenland, as far as I know, was never a signatory to the treaty. I don't believe that a country can just opt out but then again I guess that would depend on the political realities at the time.

Greenland remained part of Denmark, but left the EU when it got home rule - the equivalent of Scotland leaving the EU now.

Zhou_Enlai wrote:

Anyway, Ibis, would you do me the favour of backing up what I said about Regulations being directly effective without transposition and certain Directives being capable of direct effect without transposition into national law?

That's the case for the regulations, certainly. I'm not sure if something that is legally a Directive can work that way, or whether for something to work that it has to be a Regulation. Either way, the EU certainly has the ability to issue legislation that it is immediately binding in member states without transposition.

Cheers Ibis.

To clarify the position in respect of Directives:

- A Directive of may have vertical direct effect (i.e., as between a individual and the state) if it satisfies certain criteria. Link - Europa.eu link. This means that the individual may rely on the provisions of the Directive against the state even if the State is acting qua employer and not qua State.

- A Directive can have indirect effect as between individuals in that the law of a member state must be interpreted with reference to the Directive even if it has not been transposed. Link - Europa.eu link.

Zhou_Enlai wrote:

seinfeld wrote:

Directives and Regulations only become law in EU member states when they are transposed into national law by national parliaments. No action of the EU Council can have effect in Ireland without the approval of the Oireachtas. The Oireachtas can either agree to be bound by measures of the Council or withdraw from the EU.

I am not mad into contradicting people but I am afraid I have to here. Directives and Decisions may become directly effective against the state, in whatever capacity it is acting (i.e. privately or publicly), if not transposed within the deadline set in the Directive.
A Regulation is directly effective without transposition. to quote the Treaties: "A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

Direct Effect has no role in this context.

Direct Effect relates to the primacy of EU Law where no transposition has taken place during the normal course of membership of the EU.

What I am referring to is a situation in which the Oireachtas does not wish EU Law to have effect in the absolute sense. The Oireachtas can then either accept that membership of an political and economic union involves compromise, or choose to withdraw its support for that Union. Either way, the Oireachtas decides, which is where the Separation of Powers between the Council and its respective legislatures arises.

The alternative which you seem to be suggesting is that the Council answers primarily to the EU Parliament, which would presumably grant its approval for legislation based on some system of majority voting.

If that were the case, legislation could be passed by the Council that did not have the support of Ireland MEPs, which would again leave the Oireachtas with the choice as to whether or not accept compromise or withdraw its support.

Either way, the outcome is the same. We either accept the evitable outcome of compromise that is the essence of international relations, or isolate ourselves from the rest of the world. The choice is made by the Irish Government with the approval of the Oireactas ie based on the Separation of Powers.

Zhou_Enlai wrote:

Are you suggesting there is a provision in the Treaties which allows the Oireachtas to withdraw from the Treaties? I have never heard of such a thing.

The fact that no provision exists under the existing Treaties for
withdrawal is immaterial, unless you suppose that other EU states will
launch a military offensive against us.

Gettysburg, is that what you mean Seinfeld?

Gettysburg Address

Seinfeld,

Regulations are effective between individuals from their commencement date. Furthermore, when transposed they are usually transposed by Statutory Instrument without reference to the Dail. Directives must be brought into law by a certain date with the Member States having discretion into relation to certain details only. This is nothing to do with the doctrine of Direct Effect. Those are the rules of the European Union.

The point the former President of Germany and former head of the German Constitutional Court was making is that we are signing up to a system where most of the legislation avoids the democratic control mechanism of the separation of powers. That point is valid and it is how the EU is designed. The only difference between you and I on this point is that you are totally dismissive of co-decision as a democratic control mechanism.

You answer seems to be that if we don't like it we can leave. That may be true but it does not change the character or operation of the EU. It does not change the lack of democratic control machanisms in the law making process of what the political union which our country is a member of. This lack of ratification by a legislature is one mechanism by which the EU has become self augmenting and outside the control of the people.

The opt out provision further does not affect the reality that the rest of the EU could isolate us totally if we opt out as we would be opting out of all treaties. If they got sticky about it then leaving will be totally untenable in an integrated world. Let's face it, its totally untenable as things are.

Also, you might want to read the opt out provision. You cannot get out for at least two years without agreement. In the meantime, the EU law is the law. This is not a central point but I think you should note it considering you have stated that you understand the EU Treaties as amended by Lisbon.

In any event, signing up an unpalatable commercial deal on the basis that you have an opt out may, in certain cicumstances only, be acceptable. However, it is my view that it is certainly no way to design and sign up to a political union.

Zhou_Enlai wrote:

You answer seems to be that if we don't like it we can leave. That may be true but it does not change the character or operation of the EU.

That's my response to you suggestion that the Separation of Powers does not exist at EU level. I agree it doesn't, not should it. It exists at national level, in that the Oireachtas has the final say as to whether or not the actions of Irish members of the European Council have effect in Ireland.

The EU has never claimed to be a State, nor claimed to have a Separation of Powers, because it respects the sovereignty of individual members states in this regard.

The EU is an expression of the desire of member states to pool sovereignty in areas where there is agreement that more effective government can occur at supra-national level. The right to withdraw support for that agreement will always rest with member states and their parliaments.

If that is your view then I think you have expressed it well and are not alone in it.

To my mind, the EU legislates in so many areas that directly affect ordinary people that saying to the legislature "you can only reject this law if you reject the applicability of all laws" is a fatally diminished democratic control mechanism.

Imagine if B. Cowen was legally able to came into the Dail and tall the TDs that if they didn't accept the Clara-fication of Ireland Act 2008 then they would have to leave the EU?!!

Zhou_Enlai wrote:

If that is your view then I think you have expressed it well and are not alone in it.

To my mind, the EU legislates in so many areas that directly affect ordinary people that saying to the legislature "you can only reject this law if you reject the applicability of all laws" is a fatally diminished democratic control mechanism.

Imagine if B. Cowen was legally able to came into the Dail and tall the TDs that if they didn't accept the Clara-fication of Ireland Act 2008 then they would have to leave the EU?!!

Yes, it would probably be better if they instituted, say, a mechanism for national governments to register formally their opposition, maybe even send legislation back for review. It would also be nice, of course, if the ordinary citizen had some form of 'contract' with the EU whereby they could challenge EU legislation on some agreed basis - ideally through the national courts.

Good man ibis - educate us.

I presume no EU Law can be challenged other than on the basis that it is nt in compliance with the Treaties and the Charters the Treaties incorporate? That already exists at ECJ level, n'est pas?

Zhou_Enlai wrote:

Good man ibis - educate us.

He did. You just didn't get it.

Zhou_Enlai wrote:

To my mind, the EU legislates in so many areas that directly affect ordinary people that saying to the legislature "you can only reject this law if you reject the applicability of all laws" is a fatally diminished democratic control mechanism.

Yes, there are practical everyday difficulties but these do not relate to the overarching principle of the Separation of Powers.

The day to day difficulties are addressed through mechanisms like co-decision and the provisions of Lisbon re. National Parliaments and Citizens Initiatives that ibis has cannily referred to in his post.

I did get it. I am hoping ibis will expand on it or give a link when he has a minute. These measures have been put in place to try and address the lack of traditional democratic control mechanisms and so they are crucially relevant.

The question is whether the measures are effective and sufficient. I suggest that context for answering that question, in this thread at any rate, is my suggestion that the EU is self augmenting and out of control.

Zhou_Enlai wrote:

The question is whether the measures are effective and sufficient. I suggest that context for answering that question, in this thread at any rate, is my suggestion that the EU is self augmenting and out of control.

Whatever you want to say about the EU it certainly isn't seflaugmenting and out of control.

Reforming the EU over the last 10 years has been like pulling teeth.

If Lisbon is ratified, I don't anticipate any further structural reforms for at least 20 years.

Zhou_Enlai wrote:

I did get it. I am hoping ibis will expand on it or give a link when he has a minute. These measures have been put in place to try and address the lack of traditional democratic control mechanisms and so they are crucially relevant.

The question is whether the measures are effective and sufficient. I suggest that context for answering that question, in this thread at any rate, is my suggestion that the EU is self augmenting and out of control.

Ah. I think we have completely different views on the EU, though. I don't see it as a complex system that is inscrutable to outsiders but internally efficient and self-augmenting.

I see it as an enormous structure of compromises, some of them contradictory. The instititutional structure is slightly awkward, because it was created as an intergovernmental system, and is trying to become a democratised one - trying to follow, over a single generation, the path taken by most western democracies over centuries - but without the guillotine and bayonet.

The EU does rule through the ECJ that certain things are within its competence. You call that "self-augmentation", but I wouldn't agree at all. It is the same process as you'll find in any long-term arrangement of shared responsibility - deciding who exactly is responsible for what.

An analogy would be a large company deciding to have an inter-departmental team for certain things it thinks can be jointly handled. The initial remit of the team will have to be fleshed out by just such a process of "self-augmentation", but as long as it doesn't stray outside its original remit, it is only doing its job.

Very good thread this - I hope to open a thread in the philosophy section on Locke and Montesquieu on the back of this - just a discussion on the history and theory behind democracy, I don't know exactly yet.

Some of us can think in theory like this without examples but others find it more difficult without concreteness to the discussion so would it be a lot to ask you to refer to examples of legislation to highlight your points? I'm sorry but I just can't picture some of the things here although some of the exposition is very clear.

Only if you can.