大象传媒

In Mark鈥檚 report he correctly says that 鈥榤any enthusiastic supporters of the European Union say the dream (of EU federalism) is dead鈥�. The trouble is that although they say (and some may perhaps believe) that multi-nationalism federalism in Europe died with the Austro-Hungarian Empire they act as if it is still possible and desirable. Others talk of confederation today but go on to say that their longer-term goal remains federation. The distinction between confederation and federation is only that the member-states of a confederation retain their status as sovereign states under international law. In practice this is a rather theoretical distinction when EU law is superior to national law and even national constitutions. Member states of the European Union are in practice sovereign only to the extent that they have a choice between accepting the obligations of membership (including the supremacy of European law) or withdrawing from the EU. What is important in the EU therefore is the range of policies subject to decision-making by the 鈥榗ommunity method鈥� (which is federalism). In the absence of a European 鈥榙emos鈥� (a unified people) all decisions taken using the 鈥榗ommunity method鈥� are decisions made outside the democratic arena, but it still remains the case that it is the preference of most EU enthusiasts for the 鈥榗ommunity method鈥� to be used to decide an ever expanding range of policies. Indeed the Constitution/Reform Treaty would abolish the 鈥榩illar structure鈥� of the EU precisely to establish the federalism of the 鈥榗ommunity method鈥� as THE EU decision-making mechanism in future. So while EU enthusiasts say that federalism is dead, all actual changes to EU treaties are designed to advance it even when it comes at a severe cost to democracy in a multi-national environment.

President Barosso this week described the EU as an empire. In my opinion this word captures what the EU would become if the federalist dream was fulfilled because multi-national federalism is empire. It always involves centralised authority over its constituent nations who must live under this authority鈥檚 decisions whether they like them or not. Empires need not be tyrannical but they are always despotic. The enlightened despotism of the British Empire imagined (or deceived itself) that it was doing more good than harm in bringing civilisation to remote parts of the world. But to the people of Boston or Bombay it was still a despotism to be despised because so long as it lasted the governed could not replace their masters or even significantly influence their decisions. Barroso and his fellow Commissioners may imagine they do good but what is perceived in Brussels as the common good 鈥� the accumulation of more powers for the EU institutions 鈥� is by no means perceived as such by the peoples of Europe. This accumulation of powers has always been pursued by Monnet鈥檚 method of 鈥榠ntegration by stealth鈥� and has never been subject to any form of democratic legitimisation. We have long since reached the point where there is no popular mandate for even the status quo, but still the federalists push on intoxicated by what they perceive to be a beautiful dream but which would actually be a despotism. National executives are happy to go along with this process because it increases their power relative to other branches of government and even the people they are supposed to represent. The peoples of Europe are slowly being disenfranchised as the national Parliaments they elect have ever less area within which they may legislate without conflicting with European law. The 鈥榚nlightened despots鈥� of the EU Commission with their monopoly right of legislative initiative for law superior to any other for 490 million people slowly emerge as the true European government. And as with empires of the past it is a remote authority which no voter in Europe can replace or even significantly influence.

A more enlightened approach in the real Europe of nations would be to make EU law subordinate to national law in areas other than the common market. This would still allow common European policy making. But by allowing individuals nations to opt-out of Brussels decisions on a per-case basis it would ensure that each and every EU law enjoyed a true democratic legitimacy in each of the lands in which it is applied.

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鈥淓xperience hath shewn, that even under the best forms (of government) those entrusted with power have, in time, and by slow operations, perverted it into tyranny鈥� -- Thomas Jefferson

So this political campaign group, which in the UK functions as the youth branch of the European Movement, is funded by taxpayers. Do I understand you correctly?

To Sebastion (35/38) who says 鈥渇ederalism is at its core a democratic idea鈥�.

Federalism is only a way to distribute functions within a state. Democracy (from 鈥榙emos鈥� = people, kratos=鈥檙ule by鈥�) requires a people and therefore cannot exist in a multi-national state whether it is federal or not. Majority voting in a multi-national state is just a way by which the larger nations may dominate the smaller. Eurovision Song Contest voting in which some countries have 12 points and some 12000. Both Germany and Denmark are today democratic. But if there were an 鈥淎nscluss鈥� to unite these two peoples that gave the 5 million Danes representatives in the Bundestag alongside those of 80 million Germans would the resulting 2-nation state be democratic? Danish representatives would frequently be outvoted and the Danes required to live under law they disagreed with and could not change. Unless a majority of Danes would accept such an 鈥楢nscluss鈥� I would not say it could ever be regarded as democratic. No European nation would vote today for an 鈥淎nscluss鈥� to create a European Federation yet still treaty changes are made by national executives that achieves the same thing and (not co-incidentally) increases the power of national executives relative to other branches of government and disenfranchises the voters.

In 1862 the liberal historian Lord Acton noted of the Austria-Hungarian Empire that "In those countries where different races dwell together ... the power of the imperial parliament must be limited as jealously as the power of the crown, and many of its functions must be discharged by provincial diets". No European institution 鈥� including the European Parliament 鈥� can be a solution to the democracy problem in Europe when it arises directly from the linguistic and cultural diversity that lies at the roots of our strong national identities.

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鈥淚f once the people become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions.鈥� -- Thomas Jefferson

Albert Sanjuan (61) claims most young people in Europe support EU federalism, something Alex Stone (58) and Chris Christoforides (52) also seem to believe. Every actual European referendum, i.e. in Luxembourg, France, the Netherlands and Spain on the EU Constitution, in Ireland on the Treaty of Amsterdam, and Denmark on the Treaty of Maastricht, all show the same thing - that the 18-25 range is among the most hostile to the EU. This for example is an age breakdown of the official exit polls from the French EU referendum of 2005.

2005 vote
Age Yes No Result
----- --- --- ------
18-24 44% 56% NO
25-34 45% 55% NO
35-44 39% 61% NO
45-59 38% 62% NO
60-69 56% 44% YES
70+ 58% 42% YES

The EU's own 2005 'Post-referendum survey in Luxembourg' says "The sociodemographic breakdown confirms phenomena noted in Spain, France and the Netherlands and shows that the voters of the two camps have a well-defined profile irrespective of the country where they are. So, the 鈥榊es鈥� come out on top more clearly among women (60%) and especially among the more elderly (72%), whilst the great majority of young people (62%) tend to side with the 鈥楴o鈥�."

See page 9 of

It is the post-war generation who support the EU the most. The JEF are not representative of their generation who see the EU for what it is.

To Sebastian (73): Do you really mean to say that it is IMPOSSIBLE for a majority of Germans to favor something, but a majority of Danes to oppose it? It is in these circumstances that the principle of decision-making by majority ceases to be democratic in this hypothetical 2-nation state. And yes 鈥� nations do 鈥榮tick together鈥�. The solidarities that exist within nations do not exist between nations. Those solidarities are key to the electoral acceptability of the large-scale fiscal redistribution that modern governments engage in. Without such solidarity between European nations electorates would not stomach any European government extracting sufficient revenues from them to provide expensive social services to other peoples in far-away countries.

Federalists base their predictions of the 鈥榠nevitability鈥� of an EU state on the mistaken belief that it is necessary to be 鈥榖ig鈥� to take on the USA or China. But actual trends in the world show that the smallest states are among the most successful. And that far from states coalescing into ever larger units, there is a clear trend throughout the world in the opposite direction. Singapore is the richest country in Asia. Norway (2nd), Iceland (3rd) and Switzerland (4th richest in the world) are small states that are among the richest countries on Earth while being outside the EU. It is only politicians that feel the need for massive political entities because they are motivated by power. Most people would rather live in rich and democratic Singapore than totalitarian China, or rich and democratic Switzerland rather than any member state of the European Union. But politicians aspire to preside over superpowers, preferably unconstrained by the need to pay heed to the will of electorates.

In the inter-war years high tariff barriers gave large countries with protected domestic markets a big advantage. Small city-states like Singapore would not then have been economically viable as independent entities. Globalisation, the open international trading system and the era of low tariffs now allow even the smallest states to prosper as independent entities because they have near equal access to the largest market imaginable; that of the whole world. The EU鈥檚 common external tariff is now down to 0% for services, 1.9% for manufactured goods and ~10.9% for agricultural products, figures too low to significantly distort world trade in the sectors that dominate modern economies.

With the cost of independence never having been so low it is no surprise to see more and more small nations asserting their right to national self-determination by becoming independent nation-states. When Monnet chaired his 鈥淎ction Committee for the United States of Europe鈥� the membership of the United Nations was less than 60 states. Today it is nearly 200. The number of European states has increased from 30 to 50 since 1989 alone. This process has not ended even in Europe and it has scarcely begun in Africa and parts of Asia, where current state boundaries were drawn up by colonial powers with little consideration for the linguistic and cultural diversity of indigenous peoples. There are some 6000 distinct languages in the world. At their present rate of disappearance there should still be 600 or so left in a century's time. Many new nation states, possibly hundreds more, are likely to come into being during the 21st century such as Quebec, Catalonia, Scotland, Tibet, the Kashmir and Punjab, Flanders and Walloon. The separation in earlier centuries of Norway & Sweden, Belgium & Holland or the nations of the Austrian Empire illustrates an unwritten rule in the affairs of mankind that countries comprising multiple language blocks must break-up unless one language absorbs another. The global and historical trend is therefore strongly away from multi-national multi-lingual states such as the EU Federalists imagine is the future. That was the pre-1789 Europe that was gradually replaced by the nation-state. The rising crisis of legitimacy that threatens to engulf the EU institutions only serves to underline that liberal democracy within the context of the nation-state remains the only recipe for a future that works.

To Tony (104): The Federal Trust paper is a good one, especially its first 12 pages where it analyses the legitimacy problems facing the EU. However some of its later proposals on the 鈥榳ay forward鈥� would fail its own analysis.

For example the Federal Trust recommends a pan-European referendum be used to ratify amendments to European treaties. I am in favour of such referenda but not if they would bind even those nations that voted against the amendment. If a pan-EU referendum were held to approve a change to some key article of a European treaty, such as the right to leave the EU, and this referendum were carried overall but not in some countries, then the outvoted nations would become trapped in the EU against their will. It would be the end of the sovereign right of those outvoted peoples to constitute the form of government they desire, which cannot be legitimised by the votes of people in other larger nations. The Federal Trust proposal would be no more legitimate than holding a UK-wide referendum on Irish independence in 1920, or a similar UK-wide referendum on Scottish independence today in which a majority of Scots voted for independence but were denied it by an English majority.

The Federal Trust paper also advocates the EU Commission being chosen by the European Parliament to reflect the political views of its partisan majority. This is similar to some recent ideas by Commissioner Wallstr枚m to 鈥榩oliticize鈥� the Commission. However, the 鈥渘o EU demos鈥� thesis (which as you point out is accepted by the same Commissioner) implies the Commission could never have the legitimacy to impose an avowedly political agenda over the heads of democratically elected governments. One can easily imagine riots in the streets should a politicized commission impose liberal economic policies ion France in direct opposition to the will of its people and government justified on nothing more than the political hue of the European Parliament. Or alternatively massive resentment in the UK should a politicized Commission impose an alternative social / protectionist agenda against the wishes of its people. The fact that the EU Parliament voted 512 to 111 this week to defeat an amendment that would require ratifying the resurrected Constitution by referendum despite opinion polls showing majorities in all 27 EU member-states wanting such referenda shows that the EU Parliament represents the supranational interest and not the people.

The Northern Ireland experience of 50-years of majority decision-making without a 鈥榙emos鈥� shows that 鈥渕ore British-style decision-making鈥� (as advocated by the Federal Trust for the EU) may actually lead to the permanent domination of the political system by one group able to impose a 鈥渢yranny of the majority鈥� on a smaller group. In its 50-year history, only one piece of legislation was passed by the Northern Ireland Parliament that originated from the Catholic community (concerning wildlife) leading to a build-up of resentments within the minority community that eventually erupted into political violence. Any federal political arrangements in Europe premised on the assumption that they will eventually be legitimized by the possible future emergence of a European 鈥榙emos鈥� is playing with fire. The only true safeguard is a massive infusion of flexibility into the EU structure by making most European law subordinate to national law such that each national 鈥榙emos鈥� may decide to adopt individual EU acts on a case-by-case basis. That too is the only system which will prevent the ever growing body of superior EU law from eventually extinguishing the ability of our national parliaments to legislate, and indeed the ability of our votes to influence anything.

I also question if any EU 鈥榙emos鈥� is actually being formed; page 94 Eurobarometer#62 shows the strength of European identity weakening between 1994 and 2004 and the Eurobarometer#64 shows another fall in 2006. The main purpose of many, perhaps all, EU spending programs is to get people from one country to interact with people from others precisely in the hope that it will lead to the formation of that elusive EU demos. But programs like ERASMUS or this JEF junket are (as you point out) insufficient to outweigh the profound alienation induced by the nakedly anti-democratic means by which the federalist agenda is now being pursued.

To Edward (114): It may be that you and I have different ideas of what the purpose of the EU should be. Certainly I do not favour its continued evolution towards a state, and while the UN has many problems of its own, the principle on which it was founded is a good one; i.e. that the only sustainable basis for peace is the voluntary cooperation of nations. For me the supremacy of EU law in an ever expanding range of politically sensitive areas imposed by QMV on nations against the will of their peoples is not voluntary co-operation.

I cannot agree that any European body should have the final word on changes to the EU鈥檚 Constitutional arrangements. A Constitutional Court may only determine if an act is Constitutional with respect to existing arrangements. Since peoples (and not state institutions) constitute governments and define in a constitution the manner in which that government may lawfully act, changes to those arrangements may only be legitimized by those same people. Since there is no European people, only the peoples of the individual nations of Europe may ratify changes to EU treaties (which have a legal status equivalent to national constitutions) and each and every nation must agree to those changes else they would cease to be sovereign. Unfortunately Ireland is the only state in Europe where the rightful necessity to ratify changes to EU treaties by national referendum is protected by their constitution.

I do not accept that a federal European state using Belgian-style 鈥渃onsociational鈥� arrangements would be an improvement on separate democratic nation-states each making decisions by the majoritorian principle within the context of their national 鈥榙emos鈥�. The constitution of Belgium and indeed Lebanon and Iraq, as well as the Good Friday agreement and Dayton peace accords are all 鈥榗onsociational鈥� arrangements designed for use in deeply-divided societies (or even conflict situations). Such arrangements protect smaller groups by an extensive system of group rights from the 鈥榯yranny of the majority鈥� that might arise should the largest group(s) permanently dominate political institutions. Democracy is subordinated in those systems with politics being dominated by the group elites who tie up deals among themselves in the interest of keeping a lid on inter-group tensions. Such arrangements may be necessary in Belfast, Beirut or Baghdad where the groups live side-by-side in the same streets, but where these 鈥榙emoi鈥� live in geographically separate locations a two (or multiple) state solution is better and is certainly the preferred option (bar the odd trouble-spot) as the general rule in Europe. The voting rights granted to member-states in the EU Council of Ministers may be viewed as a form of 鈥渃onsociational鈥� arrangement. The evolution of the EU shows the negative effect such arrangements have on our democracy as politicians that used to view their role as implementing the program of government upon which they ran for office, increasingly adopt a role as merely explainers to the people of the joint position agreed to by their fellow political elites in the Council of Ministers. Such arrangements actually increase the power of those politicians within the elite group, but diminish their accountability to the people relative to the ideal of nation-states.

To Luka (117): Do you have evidence to support your claim or is this an EU-myth? The Scottish Executive鈥檚 website has polling data on the trend of Scottish support for the EU. Their conclusion is 鈥減eople in Scotland report broadly similar Eurosceptic views as people in Britain as a whole鈥�.

Since the Prime Minister and leader of the Liberal Democratic Party are Scottish I think you can hardly conclude Scotland is a nation being oppressed by the English. I think it important to nourish and support the Celtic languages of the British Isles (and indeed of the Continent), but I never heard anyone describe the UK as a 鈥榤ulti-lingual federation鈥� before.

In response to Edward (119): 鈥楧emocratic European federalist鈥� is a kind of political oxymoron, akin to 鈥榗ommunist democratic republic鈥� or the Tibetan 鈥榓utonomous region鈥� of China. For the reasons I explained before, there is no democracy without a demos (i.e. a polity with a strong 鈥榳e-feeling鈥�) and all evidence shows the strength of European identity is far too weak to bear the weight of democratic politics. The consequence is that binding EU decision-making will always be revealed as illegitimate whenever there is disagreement between EU members on politically sensitive matters. Carlos (99) complains that 鈥渓eaders have continued to delegate those areas they regard as relatively unimportant to the EU, while retaining sovereignty in others鈥�. But given the severely limited EU legitimacy base this is all that is possible. The transfer of further powers to Brussels in politically 鈥榠mportant鈥� areas (as the resurrected Constitution would do) can only further overload the EU legitimacy base, resulting in more and more cases where nations reject as alien a body that imposes unwanted law on them.

It is simplistic to say 鈥榖ig business鈥� always supports liberalised markets and that this is related to the EU鈥檚 democratic deficit. Business is always the first to ask for protectionist measures when it perceives it has lost competitiveness and representative government should resist their calls because it is always the people they represent (in their role as consumers) who pay for protectionism. The so-called EU 鈥榙emocratic deficit鈥� is a totally separate issue. Shirley Williams once defined it as 鈥渢he gap between powers transferred to the Community and the efficacy of European Parliamentary oversight and control鈥�. That is to suggest that giving more powers to the EU Parliament would correct the problem. That is true to a point (for example the Commission鈥檚 monopoly right to legislative initiative is inappropriate) but it incorrectly assumes that the 490 million people that elect the EU Parliament regard themselves as one polity that will be bound by its majority decisions and this is definitely not the case.

There are some (e.g. Giacomo Dorigo #4) who say that nations do not exist or (e.g. Luka #117) who see no future for the nation-state. Even those who believe nations are 鈥榠magined communities鈥� must accept that their existence is not just in the minds of their citizens, but also has a palpable existence in the laws, language, culture, history and institutions of a country which act in concert to reinforce national identity. Given that stable and self-sustaining national identities exist in every European country, the formation of a supranational identity sufficiently strong to legitimate majority decision-making at EU level remains unlikely. Language and culture in particular are extremely resistant to change and it is a utopian fantasy to imagine democratic politics can be detached from them. Monnet鈥檚 plan imagined the creation of European political institutions continuously striving to expand their powers that would automatically attract the loyalty of people away from national institutions. The 2nd part of his plan has failed.

For the overwhelming majority (and rising) we remain British, French, Dutch, etc. Co-operation between our countries is desirable, but in the absence of a European 鈥榙emos鈥� EU law cannot be superior to national law in an ever-growing number of areas.

To Peter (121): The EU currently uses both the 鈥榗ommunity method鈥� (e.g. for common market regulations) and 鈥榠nter-governmental鈥� mechanisms (for common foreign & security policy and police & judicial co-operation). The resurrected EU Constitution would 鈥榗ollapse鈥� the so-called pillar structure that determines the policy areas to which these different methods apply such that the 鈥榗ommunity method鈥� would become the standard across all policy areas in future. It seems you are not a supporter of inter-governmental decision-making so perhaps you may support this change, but you also complain about over-centralization and I cannot therefore imagine you would support the widespread use of the 鈥榗ommunity method鈥�, which puts very extensive power to control the legislative agenda into the hands of the unelected Commission.

When the 鈥渃ommunity method鈥� is used the Commission has a monopoly right on legislative initiative. If the Commission does not make a proposal no EU action is possible. A qualified majority of member-states in the Council of Ministers is required to approve a Commission proposal, but unanimity from all 27 member-states is required to amend it (unless the Council is fully supported by the European Parliament as per Article 251 EC when a qualified majority may amend). Furthermore, the Commission may withdraw or amend its legislative proposal at any time (Article 250 EC) should it fear unanimity from the elected governments may develop. Neither Council nor EU Parliament can compel the Commission to submit a proposal. This effectively gives the Commission a monopoly of agenda setting when the 鈥榗ommunity method鈥� is used which it may use to further its own bureaucratic ambitions. The Commission has never for example produced a proposal that would reduce the body of EU law.

Such power to control the legislative agenda by the EU executive (Commission) has no equivalent in any parliamentary or presidential democracy in the world. In the US separation-of-powers system the executive has no formal power to introduce legislation in Congress which is the exclusive right of Congressmen. The US Constitution only allows the executive (president) 鈥渢o recommend to their consideration such measures as he shall judge necessary鈥�. The President鈥檚 main power is the executive veto on the legislative output of Congress (though Congress may overrule the executive with a super-majority). In parliamentary democracies most legislative proposals are initiated by the cabinet, but ordinary MPs are free to amend or reject these proposals and may also introduce their own. Members of the European Parliament are not free to work on any legislation in the absence of (or prior to) a Commission proposal and their output is subject to the approval of the Council of Ministers. Therefore, while I have some sympathy with your critique of an over-mighty UK executive, the power of the EU executive to control the legislative agenda at European level is actually far greater and is totally inappropriate when one considers that (i) it is an unelected body (ii) the law it leads to is superior to any made by democratic national parliaments (iii) such law actually suppresses the ability of those national parliaments to legislate in that area at any time in the future.

Furthermore national executives (cabinets) appoint EU Commissioners and sit on the EU Council of Ministers putting enormous power in a few hands. The over-mighty national governments you rail against control both ends of the EU legislative 鈥榩ipeline鈥� and the law they produce there cannot be blocked by any votes in national parliaments. The power of national parliaments to 鈥榮crutinize鈥� EU law is toothless without power to amend or block and nothing in the resurrected Constitution would change that. Cabinet ministers in many countries are often tempted to use the EU system when they believe they could not get their proposals through their national system due to the checks on their power at national level. As you point out the checks on the executive power in the UK are rather weak but any attempt to strengthen them without EU reform would be fruitless because they would simply create additional incentives for UK cabinet ministers to emulate their continental colleagues in using the EU democracy bypass to get around them.

You also favor regional government, but recent proposals for devolved government in English regions have been defeated in referenda. The same is true in Italy if I recall correctly. I fail to see how overruling these referendum results with an EU-mandated 鈥淓urope of Regions鈥� could be justified on the basis of correcting a 鈥榙emocratic deficit鈥�. The people of a region such as N.W. England are not a separate nation and do not seek self-government. That is the difference between a region and a country.

To Mr. Hubner (122): You point out that there are some states (e.g. Belgium, Switzerland) that stand out as exceptions to the nation-state and conclude that the EU can be democratic along those lines. As I said earlier (post 116) 鈥渃onsociational鈥� states are characterised by deep-internal divisions such that the principle of decision-making by majority is not accepted. They might be justified in cases (e.g. Lebanon) where the different groups cannot be territorially separated or when inter-group conflict may turn violent should the largest group(s) permanently dominate political institutions. But what you do not show is why a nation that has already achieved a stable democratic nation-state would willingly swap it for what is a degraded and unstable form of democracy.

Belgium has been an artificial construction since its formation in 1831. It has evolved from a unitary state (dominated by the minority community so hardly democratic) to a federal state to a consociational state in which political rights are distributed not just to regional areas (as in a federal nation-state) but also to linguistic groups. As I understand it Walloon鈥檚 regional identity is weaker than their Belgian identity, but in Flanders the strength of Flemish and Belgian identity is very close such that the existence of a Belgian 鈥榙emos鈥� is questionable. Flemish politicians have frequently talked off succession but have so far settled for transferring more and more powers away from the national government. It is difficult to avoid the impression that the current Belgian constitution represents simply an advanced step on the road to separate nation-states for Flanders and Walloon. Given that the Belgian constitution has been changed 23 times since 1993 alone I think you can hardly hold this up to the British people as some kind of role model which we might aspire to emulate by becoming a region within a consociational EU state.

Switzerland was prior to 1848 a long-standing confederation formed to oppose the aggressions of hostile neighbours. Swiss national identity appears to have become weaker since World War 2 as their neighbours have become less threatening but the strength of Swiss national identity stills outweighs cantonal identity so one can speak of a Swiss 鈥榙emos鈥�. The Swiss people and cantons approved the most recent changes to their constitution in 1999 so there is no question of Switzerland being an illegitimate state.

By contrast the 2005 referendum results in France and the Netherlands rejected the EU鈥檚 Constitutional arrangements which are now apparently to be implemented anyway. It is generally felt that the British people would have rejected not just the EU Constitution but also the treaties of Maastricht, Amsterdam and Nice. Eurobarometer shows that the strength of European identity is very weak in every EU country, with just 3% of UK citizens saying their European identity is stronger than their British identity. There is no question of a European 鈥榙emos鈥� existing and we see there is no EU democracy either. The latest proposed changes to the EU have been rejected by two countries and opinion polls show 16 would reject it if given a vote but still the elites try to impose it. To say that the existence of Switzerland demonstrates the EU can be democratic bears no relationship to the reality of the EU, especially when one considers that the Swiss refuse to join because their direct form of democracy is incompatible with the supremacy of EU law.

To Jeff (126): I believe it would be practical to make the following distinction between two tiers of EU law:-
(1) Mandatory EU law superior to national law that should only be permitted in the following cases:
(a) Very specific areas of exclusive competence such as common external tariffs & single market regulations.
(b) Negative law (e.g. 鈥榯hou shalt not 鈥︹�� ) applied between (and not within) our countries to prevent one country from causing some form of harm to another. All countries should be happy to accept such 鈥榥egative law鈥� as it would protect them from damaging behaviour by others.

(2) Optional EU 鈥榬ecommended law鈥� subordinate to national law for use in all other cases. This would allow the EU to work in areas of 鈥榩ositive law鈥�, e.g. social rights, education/health etc., or big-ticket projects like Galileo, that (unlike 鈥榥egative law鈥�) always come with a high price-tag. If EU legislation in these areas were subordinate to national law then common European positions might be achieved, but the final say on the basic spending priorities of government could still be decided democratically on the basis of national election results. This would also automatically force the EU to work on truly useful programs that countries will voluntarily sign up because they could not achieve the same on their own.

In response to Edward (130): The Eurobarometer questions ask whether people consider themselves:
(i) National only
(ii) National plus European
(iii) European plus national
(iv) European

The definition of 鈥榙emos鈥� (i.e. from Fritz Scharpf) is 鈥渁 community in which the identification of members with the group is sufficiently strong to override the divisive interests of subgroups in case of conflict鈥�. Therefore the important distinction for the legitimacy of EU governance (i.e. whether it will split on contentious issues) is the numbers answering either (i) or (ii) relative to those answering (iii) or (iv). i.e. between those whose primary loyalty is to their country versus those whose primary loyalty is to 鈥楨urope鈥� or the EU.

You make much of the number of people answering (ii) (weak European identity) but while people can have only one primary loyalty they may have multiple weaker ones. For example my primary identity is with Britain but I have weaker identification with the English-speaking world, 鈥淭he West鈥� and Europe (in that order). You cannot group people with a weak European identity (i.e. answer (ii)) as if they had answered (iii) 鈥榩rimarily European鈥� and conclude that a majority of French or Germans would agree to governed by a federal EU state.

Page 21 of Eurobarometer 64 has a diagram showing that Luxembourgers are the people with the strongest European identity. But even in Luxembourg there are more people (27%) answering (i) 鈥榥ational only鈥� than (iii) + (iv) combined (13%+9%=22%). The EU25 average for respondents answering either (iii) or (iv) is 9%. In the heartlands of 鈥榗ore Europe鈥� only 15% of Belgians and 12% of French or Germans say they have a stronger European identity than national. In Britain and Finland it is 3%. The simple truth is that EU federalists are a tiny minority everywhere. They have a missionary zeal that others will join them but the Eurobarometer #62 figures show the strength of European identity has been on the decline since 1994.

鈥︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌︹赌�.
In response to Mr Huber (131) who claims that 鈥減eople do seem to accept outcomes of EU decision-making as legitimate鈥�.

The European Parliament has voted 378-262 to scrap the UK鈥檚 opt-out from the Working time directive.

Do you regard this vote from the European Parliament as having any democratic legitimacy when the people and successive government of the one country it would effect (the UK) have consistently supported the retention of this opt-out? If you do regard this EP decision as legitimate can you explain why the democratically expressed will of the British people to work the hours they choose should be overruled? If you do not regard this EP decision as being legitimate why would you regard any of its other decisions as legitimate?

EU decisions are only perceived as not being illegitimate when we do not really care about the issue being decided. Once the matter is seen as being 鈥榠mportant鈥� each nation will regard a decision from the EU Parliament that they disagree with as illegitimate. The mechanism has in fact always been illegitimate but is only now revealed as such as the EU assumes powers in politically sensitive areas.

To Peter (131): Do you really believe that policy areas subject to qualified majority voting can be 鈥榲etoed鈥� by a country on the grounds of 鈥榮trategic importance鈥�? Delay for 3 months is not a veto. Do you think the Commission鈥檚 monopoly of legislative initiative under the 鈥榗ommunity method鈥� does not exist or that the EU constitution/reform treaty would not make this the default in future? Or that the treaty articles (as referred to in my earlier posts) that require unanimity from all 27 member state government to modify a Commission proposal mean something other than they say? The EU operates by rules and those rules are defined in treaties. Your call for a 鈥榗loser examination of the facts鈥� is empty rhetoric unless you can point to articles in EU treaties to back up your claims.

You suggest a European political union may be possible over a 50-100-year period but the linguistic & cultural diversity in Europe will remain for much longer than that. The globalisation of the economy and advances in communications technology make distance ever less important leaving language and culture as the enduring characteristics that underpin the strength of our national identities. You might (arguably) be on stronger ground if you were to say that trends point to future multi-national political unions between nations united by language, history and culture but currently separated by geography. This might for example indicate future prospects for a political union between the English-speaking countries (or the Spanish-speaking world) should there be some practical motivation for such unions. But Europe is arguably the least promising place in the world to create a multi-national federation. Even the Chinese and Japanese share the same written language but nobody suggests that is enough for a political union in Asia.

鈥︹赌︹赌︹赌︹赌︹赌︹赌︹赌�.

To Anonymous (137): The abolition of the nations of Europe cannot be decided by a ~9% minority. The existence of a nation is decided by majority opinion of the population of a territory. EU federalists are a tiny minority (and getting smaller) everywhere and cannot constitute a nation.
鈥︹赌︹赌︹赌︹赌︹赌︹赌︹赌�.

To Jeff (136): Do you regard national parliaments as 鈥榓 waste of time鈥� and the laws they produce as 鈥榥ot worth the paper they are written on鈥� because of the supremacy of EU law? If you do you then the only future you can see is an undemocratic unitary state for Europe with our national parliaments closed down. If you do not then why would you regard the opposite legal hierarchy (i.e. making some EU law subordinate to national law where it exists) as rendering the EU worthless?

I do not believe it is difficult to distinguish between so-called negative and positive law. It is in fact an age-old distinction which has importance in a supranational environment because European integration based on 鈥榥egative law鈥� (e.g. the removal of restrictions on the free movement of people, goods and services, or the prevention of protectionist or anti-competitive behaviour) is a 鈥榳in-win鈥� scenario even in the absence of a European 鈥榙emos鈥�. Just as natural law (鈥榯hough shalt not kill鈥�, etc.) should be accepted by all rationale individuals because it protects them if all others abide by it, negative European law should be acceptable to each country because it protects them so long as other countries abide by it. So while the absence of an EU 鈥榙emos鈥� implies all EU decision-making suffers from a lack of democratic legitimacy the win-win nature of 鈥榥egative integration鈥� means it is less likely to lead to conflict that would reveal it as illegitimate.

You say you cannot see why France would agree to be bound by negative EU law but negative law protects the French as much as anyone else by obliging others to refrain from harmful practices that would damage the French. If you as an individual were able to opt-out of the criminal laws against murder or stealing you should accept that you can be legally murdered or your goods taken which is irrational. If the French opt-out of EU laws against the free movement of people, goods and services then it will be their people, goods and services that cannot move and it will be them more than anyone else who suffers. Or do you think the French imagine they would be given an unequal right to harm their neighbours while every one else remains obliged to treat them fairly?

鈥楶ositive integration鈥� (e.g. harmonised social rights, health, education etc.) is far more problematic because it tends towards a zero-sum game in which a gain for one country is a loss for another. Decision making by majority then becomes impossible to legitimate (in the absence of a European 鈥榙emos鈥�). For example there would undoubtedly be a pan-European majority to abolish the British 鈥榬ebate鈥� (or indeed any measure where a minority of countries pay more) but is it acceptable to impose such decisions by qualified majority? It is the same with abolishing the British opt-out from the Working Time Directive, or giving European students state-subsidized education at British universities funded by British taxpayers. Some countries will gain from these measures and others will lose and there needs to be a mechanism to prevent a 鈥榯yranny of the qualified majority鈥� voting through doubtful measures from which the majority will not suffer but which will come at a real cost to the outvoted countries. That mechanism used to be the national veto but they are gone and anyway always suffered from the serious problem that a decision by one government not to use a veto bound all future governments. The best solution would be to make EU law in the areas of 鈥榩ositive integration鈥� subordinate to national law such that national elections can result in new governments opting in or out of existing areas of EU 鈥榩ositive integration鈥� (but not negative integration) based on their ongoing evaluation of the actual costs and benefits that each European policy delivers.

Just to clarify this distinction of 鈥榥egative European law鈥� superior to national law and 鈥榩ositive European law鈥� subordinate to national decisions should apply to previously agreed EU policies as well as future ones. Ossified areas of 鈥榩ositive integration鈥� like the CAP have persisted unreformed for decades swallowing huge sums of money but delivering little in return while remaining permanently beyond the influence of voters to reform. It cannot be acceptable that every policy area transferred to Brussels control slowly ossifies in a similar way. Only the option for each national electorate to decide that the EU policy is no longer working for them such that they wish to opt-out of it will force European policy makers to keep EU policy fresh and appealing such that nations will happily remain signed up. The current supremacy of EU positive law is a guarantee of bad policy because it insulates European policy from the pressures of a democratic process that can only exist at the national level.

To Peter (131): You suggest a European political union may be possible over a 50-100 year period but the linguistic & cultural diversity in Europe will remain for far longer than that. Globalisation of the economy and advances in communications technology make distance ever less important leaving language and culture as the enduring characteristics that underpin the strength of our national identities. You say (138) that England is too large a political entity but this contradicts your assertion that an even larger European political entity is desirable. You also contradict yourself in calling my proposal for two tiers of EU law 鈥榰nworkable鈥� while asking for devolution for English regions. And finally the size of nations is not something that will ever be determined by mathematical equations. Nations ranging in size from Tuvalu to China co-exist in this world and the form of government they (if not always their politicians) will inevitably aspire to is the nation-state because that is the only form of government compatible (due to its 鈥榙emos鈥�) with democracy.
鈥︹赌︹赌︹赌︹赌︹赌︹赌︹赌�.

To Anonymous (137): The abolition of the nations of Europe cannot be decided by a ~9% minority. The existence of a nation is decided by majority opinion of the population of a territory. EU federalists are a tiny minority (and getting smaller) everywhere and cannot constitute a nation.
鈥︹赌︹赌︹赌︹赌︹赌︹赌︹赌�.

To Jeff (136): Do you regard national parliaments as 鈥榓 waste of time鈥� and the laws they produce as 鈥榥ot worth the paper they are written on鈥� because of the supremacy of EU law? If you do you then the only future you can see is an undemocratic unitary state for Europe with our national parliaments closed down. If you do not then why would you regard the opposite legal hierarchy (i.e. making some EU law subordinate to national law where it exists) as rendering the EU worthless?

I do not believe it is difficult to distinguish between so-called negative and positive law. It is in fact an age-old distinction which has importance in a supranational environment because European integration based on 鈥榥egative law鈥� (e.g. the removal of restrictions on the free movement of people, goods and services, or the prevention of protectionist or anti-competitive behaviour) is a 鈥榳in-win鈥� scenario even in the absence of a European 鈥榙emos鈥�. Just as natural law (鈥榯hough shalt not kill鈥�, etc.) should be accepted by all rationale individuals because it protects them if all others abide by it, negative European law should be acceptable to each country because it protects them so long as other countries abide by it. So while the absence of an EU 鈥榙emos鈥� implies all EU decision-making suffers from a lack of democratic legitimacy the win-win nature of 鈥榥egative integration鈥� means it is less likely to lead to conflict that would reveal it as illegitimate.

You say you cannot see why France would agree to be bound by negative EU law but negative law protects the French as much as anyone else by obliging others to refrain from harmful practices that would damage the French. If you as an individual were able to opt-out of the criminal laws against murder or stealing you should accept that you can be legally murdered or your goods taken which is irrational. If the French opt-out of EU laws against the free movement of people, goods and services then it will be their people, goods and services that cannot move and it will be them more than anyone else who suffers. Or do you think the French imagine they would be given an unequal right to harm their neighbours while every one else remains obliged to treat them fairly?

鈥楶ositive integration鈥� (e.g. harmonised social rights, health, education etc.) is far more problematic because it tends towards a zero-sum game in which a gain for one country is a loss for another. Decision making by majority then becomes impossible to legitimate (in the absence of a European 鈥榙emos鈥�). For example there would undoubtedly be a pan-European majority to abolish the British 鈥榬ebate鈥� (or indeed any measure where a minority of countries pay more) but is it acceptable to impose such decisions by qualified majority? It is the same with abolishing the British opt-out from the Working Time Directive, or giving European students state-subsidized education at British universities funded by British taxpayers. Some countries will gain from these measures and others will lose and there needs to be a mechanism to prevent a 鈥榯yranny of the qualified majority鈥� voting through doubtful measures from which the majority will not suffer but which will come at a real cost to the outvoted countries. That mechanism used to be the national veto but they are gone and anyway always suffered from the serious problem that a decision by one government not to use a veto bound all future governments. The best solution would be to make EU law in the areas of 鈥榩ositive integration鈥� subordinate to national law such that national elections can result in new governments opting in or out of existing areas of EU 鈥榩ositive integration鈥� (but not negative integration) based on their ongoing evaluation of the actual costs and benefits that each European policy delivers.

Just to clarify this distinction of 鈥榥egative European law鈥� superior to national law and 鈥榩ositive European law鈥� subordinate to national decisions should apply to previously agreed EU policies as well as future ones. Ossified areas of 鈥榩ositive integration鈥� like the CAP have persisted unreformed for decades swallowing huge sums of money but delivering little in return while remaining permanently beyond the influence of voters to reform. It cannot be acceptable that every policy area transferred to Brussels control slowly ossifies in a similar way. Only the option for each national electorate to decide that the EU policy is no longer working for them such that they wish to opt-out of it will force European policy makers to keep EU policy fresh and appealing such that nations will happily remain signed up. The current supremacy of EU positive law is a guarantee of bad policy because it insulates European policy from the pressures of a democratic process that can only exist at the national level.

To Mr Huber (141): Are you in favour of government taking measures that lack the support of the people? You seem to use the fact that this occasionally happens in national democracies as a justification for an EU system in which it inevitably happens when QMV is used to impose law superior to national law on nations that voted against it.

There was a majority in Britain in March 2003 that supported the action in Iraq so you cannot say Iraq is an example of democratically illegitimate action at national level that justifies undemocratic governance in Brussels. See the following poll for example taken in the very week of the invasion.

In our parliamentary democracies, no government can bind its successors. If a government takes unpopular measures at national level, the people may elect a new government which will have the power to reverse the unpopular decisions that lead us to change government. The primacy of EU law means that this fundamental principle of parliamentary democracy is lost when governments take action at EU level. If a national government agrees to some EU act then its decision binds both it AND its successors. For example, both Chirac and Sarkozy were elected on a mandate including a commitment to reduce VAT on French restaurant bills but could not implement this promise to the people that elected them because of prior EU law (from the Mitterrand era) setting a minimum rate of Vat in the EU at 15%. Such scenarios happen more and more as the body of EU law expands. QMV makes the situation worse because it means even decisions that our elected representatives voted AGAINST in the Council of Ministers can bind them, all future governments and electorates current and future. Our votes lose effect with every new EU law.

To Jeff (143): We will have to agree to disagree on the merits of the distinctions I make and their application to the limits of EU power but I base these distinctions on a reading of some of the foremost political scientists and legal minds and their writings on the EU and the legitimate role of the state. You say that EU law must be supreme and that there is no principle that can be used to distinguish the legitimate limits of its activity. If you were correct the EU should be disbanded immediately because it could lead only to an undemocratic unitary state for Europe.

I cannot see that the European Parliament can be any answer to the lack of democratic legitimacy in Europe when there is no EU 鈥榙emos鈥� or people for it to represent. That is not going to change unless you advocate a social engineering project of unprecedented scope to eliminate the linguistic and cultural diversity of Europe. Your call for the use of English throughout Europe would be regarded as far too high a price to pay in Continental countries for a super-state, and speaking English is not enough on its own to form a united people as the example of Irish independence in 1921 shows. The European Parliament can never be a democratic institution when it does not represent a people. Their vote on the Working Time Directive shows that no decision of that body that the British people or their representatives in Westminster disagrees with can be regarded as having any democratic legitimacy in this country. In practice the EU Parliament represents no interest other than its own in acquiring more powers and those powers can only come at the expense of our national parliaments. Since they alone represent a people, they alone have a true democratic legitimacy and more powers for the European Parliament taken at their expense can only add further to the problem of EU democratic legitimacy.

To Vaibhav (147) : This 大象传媒 website recently had a report to mark the 60th anniversary of Indian independence and the partition of 鈥楤ritish India鈥� into the separate states of India and Pakistan.

The report contained a quote from Lord Mountbatten (last viceroy of India), explaining the need for separate states for India & Pakistan. He said "There can be no question of coercing any large areas in which one community has a majority to live against their will under a government in which another community has a majority. And the only alternative to coercion is partition."

This is the 鈥榥o demos鈥� thesis applied to the Indian Subcontinent. It is exactly the same reason (see my earlier post #12) that there can be no democratic EU state when the real Europe consists of multiple nations none of whom will accept to live under a government that is not answerable to them.

From the Balkans to Jerusalem to Kashmir the experience is that wherever you see two peoples forced to live under one government you will see tension and outbreaks of political violence and always it is a two (or more) state solution that is necessary to restore peace and democracy. The progress of mankind means more states and we should be grateful to see that there are now almost 200 nation-states in the world and rising. Indians (and EU federalists) should remember that Ghandi was a nationalist who built a democracy that has endured while Stalin built a multi-national federation that collapsed.

To Jeff (146 & 149): I am well aware of the differences between a federal state and unitary state but neither is an option in Europe. Federalism is only a means to distribute the functions of government within a single large state but that state must still be constituted by a people if it is to be democratic and this people does not exist in Europe. Multi-national federation is something entirely different from a federal nation-state and normally goes under the name 鈥榚mpire鈥�. Do not pretend there is any 鈥榗onstitutional demos鈥� for such a European state when the EU Constitution was rejected in 2005 and the political elites now resort to underhand methods to re-impose it knowing that further referendums would very likely be lost.

Your president V谩clav Klaus has stated that freedom is what is endangered in Europe and he is right. Your country is one that was until recently part of Czechoslovakia, a small multi-national federation. Very soon after democracy was restored in 1989 it broke up when the Slovak parliament voted for independence. The experience of your own country shows that democracy and multi-national federation are mutually exclusive. You can have one, or the other, but not both. The EU elites make their preference very clear by denying further referendums that are absolutely necessary to legitimate EU constitutional arrangements under which the supreme law of every country in Europe is determined.

Economic prosperity for small states does not depend on the EU. Any connection between size of domestic market and prosperity dates back to the age of high tariff barriers which no longer exists. The great majority of people today work in the service sector where the EU common external tariff is 0%. For manufacturing it is just ~1.9%. Only the EU tariff for agriculture (~10.9%) is big enough to distort world trade where it mainly acts to raise the price we pay for food by the amount of the tariff such as to redistribute income from food consumers throughout the EU to food producers in a handful of member states. Low tariffs for services and manufacturing mean that a global marketplace has formed in which all nations large and small can prosper equally. When the list of richest countries in the world includes Norway (3rd), Iceland (5th) and Switzerland (6th), all of them outside the EU, who can believe your claim that prosperity demands a federal state for Europe? The rise of India and China can be dated precisely to the point at which they left economic self-sufficiency behind and opened up to the world economy. If that is true for the most populous nations on Earth how could it be different for any smaller nation in Europe?

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"The most puzzling development in politics during the last decade is the apparent determination of Western European leaders to re-create the Soviet Union in Western Europe" -- Mikhail Gorbachev

With all due respect Jeff, your argument is based on an ad-hoc definition of a people (or 鈥榙emos鈥�) which is actually far weaker than that required to form a cohesive state. The definition of a 鈥榙emos鈥� used by political scientists (e.g. see post #133) is more rigid and I think it is not controversial. I am not sure why you make your own one up.

鈥楴ever鈥� is a long time and I do not claim to know what the future will hold with any certainty. What I can say is that there will be no democratic 鈥榗ountry called Europe鈥� without a people who call themselves 鈥楨uropeans鈥�. The definition of 鈥榙emos鈥� that I use depends on a strong European identity (a stronger bond to Europe than to ours nations) but the EU鈥檚 own polling evidence shows European identity to be weak everywhere and getting weaker. This is why the federalist dream is fading fast.

There are many more possible futures than that envisaged by Monnet. He believed political union would automatically follow economic integration but already the economic integration has become global. If Monnet saw that we now buy Japanese cars or Korean TV would he automatically assume we agree to live under a joint government with the people who make those products?

What cannot be accepted is that democracy be replaced by government from supra-national bureaucrats. Some means has to be found by which democracy can continue to exist at the national level (the only level where there can be a 鈥榙emos鈥�) while allowing for voluntary co-operations between nations. The supremacy of EU law in all areas imposed by QMV on nations against their wishes is not voluntary co-operation. However this is not the only failing of the current EU in need of real reform. The Adam Smith Institute today announced my 鈥榗onstitution for democracy鈥� is the winner of their prize to identity the best alternative to the EU Constitution.

To Louis (158): I think you did not understand this alternative to the EU Constitution if you believe it includes widespread use of the rule of unanimity. It uses a completely different mechanism (two tiers of EU legislation) to reconcile democratic legitimacy with efficient decision-making in an EU of 27. The democratic legitimacy of the EU cannot be restored simply by re-introducing national vetoes because that would not prevent that decisions taken at EU level in past decades bind all current and future governments no matter how we vote now. As the history of the CAP shows that is a recipe for the ossification of all policy since it prevents any meaningful reform through the democratic process. Democratic legitimacy can only be restored by restricting binding EU law to usage between (and not within) our countries. If a matter is purely domestic (e.g. these roads in Poland and Spain that Mark Mardell has reported on) then EU law should be subordinate to national law such that the democratically elected national government can overrule the EU within their own territory without preventing other countries that wish to implement it from doing so. In this way qualified majority voting could be used to quickly reach EU decisions, but democratic legitimacy is preserved because the will of each nation of Europe (as expressed in their elections) can still influence the law we live under. This is the only way our votes can continue to mean something in the future.

Finally it does not matter what some men now dead thought the future of Europe might be back in the 1950s. We make our own future.

--------------------------
鈥淲e may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.鈥� 鈥� T. Jefferson.

To Oliver (161): It is the combination of the supremacy of supranational law in all fields and its imposition via QMV which leads (automatically) to the lack of democratic legitimacy that we see in the EU. The inevitable consequence is law being imposed on outvoted nations against the will of their elected governments which their people can never again change through their votes. There are consequently two ways to tackle this issue; either (i) ending QMV or (ii) restricting the areas in which EU law is supreme. For the reasons given in my previous post my 鈥榓lternative Constitution鈥� takes the second approach. Below I try to summarise the improvements my alternative would introduce relative to the rejected Constitution (or its reincarnation as the 鈥楻eform鈥� treaty).

Legislative Changes
1. A coherent set of Objectives for the EU based on the legitimate roles of government recognized by classical liberals. This would be a big improvement on the huge, rambling and incoherent objectives found in existing EU treaties which can be (and as per your example of 鈥楥osta v. ENEL鈥� have been) used to justify almost anything.
2. There would be two types of EU legislation; (a) the existing category of EU 鈥榣aw鈥� superior to national law, and (b) a new lower-tier, which I call EU 鈥榬ecommendations鈥�, sub-ordinate to national law but with the force of law in each member state unless overruled in that country only by its democratically-elected national government. As described above the first category (a) has inherent problems of democratic legitimacy in a multi-national environment and should only be used in tightly restricted areas of 鈥榚xclusive鈥� competence (where only one decision is possible) and in additional areas of 鈥榗ross-border competence鈥� where some 鈥榩rinciple of cross-border harm鈥� is involved. Beyond this the EU would only be able to legislate using the new lower-tier of 鈥榬ecommendation鈥�. As an example, the EU should not be able to mandate an EU-wide smoking ban using law superior to national law because while 2nd-hand smoke may harm someone near the smoker it cannot harm anyone in another member-state of the European Union. Such purely domestic matters are better decided by democratically elected national governments. I intend that this distinction between two tiers of European law be used to differentiate between areas of 鈥榥egative integration鈥� (e.g. the removal of harmful restrictive barriers between European countries) that are a win-win scenario for all, and areas of 鈥榩ositive integration鈥� (redistributive programs like the CAP or expensive social-rights like the Working Time Directive) that are a zero-sum game and therefore cannot be decided by a majority vote in a supranational environment without permanently penalizing minority nations. As you say Free Trade is an example of 鈥榥egative integration鈥� but it is by no means the only such example.
3. The new lower-tier of EU 鈥渞ecommendations鈥� could also be used to create a legislative basis for further integration for those countries that are willing to voluntarily sign up for it. This mechanism would have the great advantage of allowing countries that initially do not accept further integration to later opt in (e.g. following a change of national government) or indeed for initial signatories to opt-out. This would lead to a massive increase in the flexibility of the European Union and would also allow our votes in national elections to continue to influence the law we live under.
4. Some existing redistributive EU policies (e.g. CAP, CFP, regional development, etc.) would be re-classified so as to be implemented using 鈥渞ecommendations鈥�. This would allow nations that do not feel continued participation in these EU policies is still in their interest to opt-out of them and any associated financial burden.
5. There would be rights for citizens to initiate national referenda to over-rule EU recommendations in their own country or indeed to leave the Union and for pan-European referenda to strike down EU-law. This would be a final guarantee of the democratic legitimacy of EU action. Since EU law superior to national law once created can be very difficult to change and may persist long after the reasons for it have been forgotten I also include 鈥渟unset clauses鈥� that would result in EU legislation or agencies 鈥榯iming-out鈥� unless re-enacted. This would ensure that the democratic legitimacy of EU law and agencies must eventually be 鈥榬efreshed鈥�.

Institutional Changes
1. A true separation of powers based on Montesquieu鈥檚 model as follows:
(a) Executive: The current Council of Ministers and Commission merged into a single EU Executive (Council) with limited powers, e.g. the right of an 鈥榚xecutive veto鈥� on legislation from the EU Parliament.
The Council of Ministers would be stripped of all legislative power, so becoming a pure executive. This would remove the current problem (recently highlighted by former German President Roman Herzog) of national executives (i.e. cabinet ministers) using the legislative powers of the EU Council of Ministers to bypass democratic checks (e.g. votes in their national parliaments) on their executive power at home.
The Commission鈥檚 current monopoly on legislative initiative at EU level (which is morally indefensible for an unelected body to hold) would be removed from it and transferred to the EU Parliament.
(b) Legislative: All legislative power (including the right to initiate legislation) placed in a Parliament comprised of two chambers; (i) the existing EU Parliament as a lower house and (ii) a new 2nd chamber ("EU Senate") formed from representatives of the 2nd-chambers of national parliaments. This 鈥楨U Senate鈥� would for the first time give national parliaments a real power to amend EU legislation during its drafting. Since national parliaments are the only bodies in Europe that can claim a true democratic legitimacy this would be a major improvement on the democratic credentials of EU legislation. In order to prevent this 鈥淪enate鈥� from simply becoming the Council of Ministers in disguise I would form it from representatives of national 2nd-chambers (House of Lords, French Senate, German Bundesrat, etc.) that are more independent of national executives. (Naturally this assumes the House of Lords become directly elected but this is already planned).
(c) Judiciary: A 鈥楥onstitutional Court鈥� (composed of national judges) with the power of judicial review in matters related to the competence of EU institutions. This body would for example be able to strike down ECJ rulings that extend EU competence in ways unforeseen by treaty signatories (the example of 鈥楥osta v. ENEL鈥� as cited by you is a good example of inappropriate judicial activism from the ECJ in 鈥榠nventing鈥� significant new EU powers such as the supremacy of EU law for which there is to date no basis in any European treaty).
2. Qualified Majority Voting would use the 鈥淧enrose鈥� method, with the voting weight of each country based on the square-root of population. This method (which is currently used in the German Bundesrat) is mathematically proven to be the fairest way to distribute power between representatives of states of different sizes.

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To Jeff (160) : The critique of confederal arrangements (i.e. a voluntary association of sovereign states) you refer to in 鈥楾he Federalist Papers鈥� does not alter the fact that the choice between confederation or a federal nation-state available to Americans in the immediate aftermath of the War of Independence is not available today in Europe. The words you quote from Alexander Hamilton were written to encourage ratification of a US Constitution that begins with the words 鈥淲e the People鈥�. Nobody could use those words in any EU Constitution because there is no European People. Since the real Europe consists of multiple peoples, confederal arrangements are the only legitimate option available beyond the nation-state and even they require justification. The traditional reason for Confederation has been a mutual common defense for small states against a strong external threat, a role that NATO continues to fulfill in Europe. Other objectives must be found to justify the EU such as those in Article 2 of my alternative to the EU Constitution.

To Stephen Farndon (165) : Unfortunately it is true. You could search for ever through all EU treaties without ever finding any article stating that EU law has primacy over national law because there is no such article. Article #6 of the rejected EU Constitution would have done this for the 1st time stating 鈥淭he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States鈥�. The so-called 鈥楻eform Treaty鈥� has instead the following 鈥渄eclaration concerning primacy鈥� (which amounts to the same thing) and refers to the ECJ ruling 鈥楥osta vs ENEL鈥�.

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The ECJ unfortunately has a long track record in interpreting EU treaties to the maximum integrationist effect possible 鈥榠nventing鈥� such significant EU powers such as the supremacy of EU law and its 鈥榙irect effect鈥� (i.e. capacity to be applied in domestic court proceedings) based purely on its own conceptions. For a long time it was the primary actor in 鈥榤oving the goalposts鈥� of integration with Justice Lenaerts declaring in 1990 that 鈥榯here is no nucleus of sovereignty that the member states can invoke as such against the community鈥�. The ECJ believes in its own theory of 鈥榠mplied powers鈥� (e.g. Germany vs Commission Cases 281, 283-5,287/85) whereby the existence of a given 鈥榦bjective鈥� in a European Treaty implies the existence of any EU power necessary to attain that objective even when it is not explicitly provided for in an EU treaty. It is no coincidence that the objectives in EU treaties (see Article 3 of the rejected Constitution) just happen to be rather vast rambling sections that therefore give considerable discretion for unelected judges to take policy making out of the hands of elected governments with no option for appeal against their decrees. Seemingly innocuous objectives such as 鈥榚quality between men and woman鈥� or 鈥榮olidarity between generations鈥� can be used by unelected judges to make policy changes that should be voted upon as part of an election manifesto. See for example the following article from Roman Herzog (former president of Germany) who describes how the ECJ torpedoed elements of Chancellor Schroeder鈥檚 reform package and advocates an EU Constitutional Court composed of national judges to protect against creeping centralisation by judicial decree.

Since the EU is not a nation-state it can only exercises those powers conferred upon it by its member states - it can have no power of its own to determine the limits of own competence. There should therefore be a separation of the roles of determining what EU law means in cases of ambiguity (i.e. the role of a court of referral which can be a legitimate function for the ECJ) and determining if some given EU action lie within the limits of those powers that have been conferred upon the supranational institutions. This latter function cannot be performed by the ECJ when it has an interest in the result.

To Simon (165): Due to the way i submitted my last post (167) the following section from the 'Reform Treaty' referring to primacy of EU law being based only on an ECJ ruling was missed out...

鈥淚t results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/6411) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."

To Edward (166) & Jeff (160): The WTO does not have any democratic legitimacy problem similar to the EU鈥檚 because it uses the traditional method of legitimating supranational decision-making (Unanimity) such that no nation is coerced against its will. The same of true of other supranational organisations such as NATO. The WTO avoids using QMV despite having a far larger membership than the EU.

The WTO is active in an area of 鈥榥egative integration鈥�, i.e. the reduction of harmful restrictive practices (trade barriers in the case of the WTO) between nations which if achieved are a win-win situation for all concerned. Human rights legislation from the ECHR is also an area of 鈥榥egative integration鈥� which all rationale individuals should accept because it protects them from possible abuse of the power of the state. Therefore even if the WTO were to use qualified majority voting it would not be as controversial as the EU which increasingly tries to use QMV in areas of 鈥榩ositive integration鈥�, e.g. legislation for social rights, education and healthcare or big-ticket projects like Galileo that come with a significant implementation cost.

Majority voting at the supranational level in areas of 鈥榩ositive integration鈥� is not accepted as legitimate by the outvoted nations because the associated costs of policies in these areas mean this is no longer a win-win scenario. There will be winners and losers and small nations will always be outvoted by larger ones (or an alliance of larger ones) irrespective of the merits of their case. The permanent 26-1 majority in favour of abolishing the 鈥楤ritish rebate鈥� irrespective of the reasons for its existence shows that this is very much the case in the EU. Outvoted nations will not accept to be bound by the result of such majority votes because the strong solidarities afforded by the national 鈥榙emos鈥� do not exist at supra-national level. Jeff has described this distinction between negative and positive integration as a 鈥榩hilosophical point鈥� but if you do not know why some international decision-making is accepted as legitimate and some not you will never know why the EU is in such a deep legitimacy crisis or how it can be fixed. My alternative constitution seeks to ensure that decision-making by QMV cannot be imposed on nations against their wishes in areas of 鈥榩ositive integration鈥� and cannot bind future national governments and future generations of voters (thus preserving the power of our votes) in these areas.

Rather than accept that the lack of an EU 鈥榙emos鈥� means the EU should restrict its activities, Jeff proposes the greatest social engineering project in history to obliterate the cultural diversity of Europe to turn us all into a homogenous EU People. This would be the greatest cultural crime in history and it is never going to happen. The truth is no federal EU state could ever have the legitimacy to act effectively in all these redistributive areas of 鈥榩ositive integration鈥� such that it would inevitably be far a more hard-nosed capitalist polity than even the USA. Only the nation-state has a 鈥榙emos鈥� to support a true claim to democratic legitimacy and only the solidarities afforded by that 鈥榙emos鈥� legitimate the redistributive functions of the state which the peoples of Europe expect.

Edward (171) trots out quotes from 45 years ago to justify what he hopes is a self-fulfilling prophecy that the UK is in terminal decline, is incapable of articulating its own interests or acting to advance them and consequently has no other choice than to be a sub-ordinate region of a Franco-German led EU state. The calculation of interest is rather different than he would pretend. According to Edward (post #154) only Germany of the European countries has the economic power to play an influential role in the 21st century. But the EU鈥檚 own figures show that the population of Germany will fall 9.7% to 74 million by 2050 while that of the UK will rise 7% to 64 million in the same period. The UK economy has outperformed Germany鈥檚 consistently since 1990 such that our per-capita wealth is already higher than the Germans鈥�. If the population and GDP trends continue the UK economy will overtake Germany to become the largest in Europe sometime in the late 2030s. The UK economy has outperformed the Eurozone every year since the single currency was introduced and we are already decisively ahead of France.

Edward might believe that there is a multi-polar world around the corner, and he may be right. But the demographic and economic data (not to mention military spending) indicate the Continent will not be one of those poles. US GDP/person today stands 40% higher than in France and is pulling further ahead every year. The population of the USA has risen from 140 million in 1945 to 300 million today and is projected to rise to 400 million in 2050 and 500 million in 2100 by which time the combined population of the six main English-speaking countries will be 50% higher than the Continental EU25. The influence of the Anglosphere is far more likely to increase in the 21st century than decrease.

The relationship between the US and UK is based on shared values, common historical experience (including in adversity) and on shared language and even legal system, but also on a shrewd awareness of where real power lies in the world. The relative economic and demographic trends on the Continent and in the wider world indicate it would be a miscalculation of historic proportions for the UK to severe its links with its natural partners in the English-speaking world at a time when geography is becoming ever less relevant. The UK desires good relations with Continental countries, but never a forced political union that would be the end of our democratic liberties. The primacy we have afforded our relationship with the USA was the correct choice for the UK in the 20th century, and all demographic and economic data suggests it will be an even better choice in the 21st century.

Edward (179): The UK鈥檚 influence is based on the strength and productivity of our economy (the 5th largest in the world), our reputation as an honest and reliable partner and the strength of our case in support of the causes we believe in. We would remain the 2nd-most influential country in the world if we were outside the EU. In theory the EU can act to increase our influence but in practice (as evidenced most recently by the EU鈥檚 support for President Mugabe of Zimbabwe) the Continent does not share our values such that EU membership more often acts in practice to muffle the British voice. International influence should never be confused with the EU bargain whereby we gain a 9% vote in determining the laws of other countries (which we only have an academic interest in unless they affect us adversely) in exchange for them having 91% of the votes to determine the laws we live under (which we always have a direct interest in). That type of bargain is incompatible with liberal democracy. It destroys the link between governed and governors, resulting in British politicians listening more to their peers in other EU countries than to the voters who elected them.

The Anglosphere most certainly does exist and indeed has some of the attributes (common language, shared values, etc.) whose absence in Europe so cripples the dreams of EU federalists. As per my earlier posts, there is no 鈥榙emos鈥� at the supranational level meaning that the only true basis for enduring relations between nations are shared interests and common values. 鈥楥ivilizational鈥� values are a weaker form of community than those necessary to hold a nation together, but even at this weaker level Europe is found wanting because there are no European values distinct from Western values. The English-speaking part of the West (which is steadily becoming its greater part) has more shared values than does Europe which is why the UK/US relationship is such an enduring feature in international relations. For example the six main English-speaking countries all share a belief in a model of society developed in these Islands based on free markets and a minimal role for government, individual rights and responsibilities, a strong civil society, and democratic politics within the framework of a liberal constitution, which can readily be contrasted with the dirigiste & mercantilist traditions of France or the welfare model of Scandinavia.

The English-speaking countries already have mutual cooperative institutions such as NATO & ANZUS, the UKUSA intelligence sharing agreements, Free Trade Agreements for North America and USA/Australia. The USA is the UK鈥檚 top export market (ahead of Germany). Opinion polls show that Americans, Britons and Australians all regard one another as their most reliable allies. Six of the seven top destinations to which Britons emigrate are in the English-speaking world such that for every Briton that works in Belgium there are 42 working in Australia. These links are therefore not 鈥榓 figment of my imagination鈥� but are actually far more real and substantial than any number of lowest-common-denominator communiqu茅s from government ministers at EU meetings they would rather not be at.

There is the potential to expand these close collaborations into deeper ties in trade, defence, free movement of peoples, and scientific cooperation, all bound together by our common language, culture, and values while avoiding the excesses of the EU. But that is for the future. The UK should try to rescue the EU by seriously reforming it (for example along the lines of my alternative to its rejected Constitution) but if this cannot be done then we should start afresh on a global-scale with like-minded partners in developing a new and improved form of international co-operation within which liberal democracy might be safe.

To Louis (183): No decision taken by a judge in 1964 (when the EU restricted itself to minor matters like the maximum curvature of cucumbers) can justify that EU law is supreme in all policy areas in future. If that is the case then every new EU law will remove a national law and also the ability of our national parliaments to change that law. The inevitable result of that process will be the death of democracy because in the long-run every law will be made in Brussels and the democratic parliaments we elect will not then be able to change anything. No judge in 1964 can make such a decision about the future of democracy for 500 million people.

Jeff (181): Sovereign nation states are bound by the terms of international treaties whether they are big or small countries. The US Constitution for example states 鈥淭his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made 鈥� shall be the supreme law of the land鈥�. It does not say the US Constitution alone is supreme; it says the constitution and international treaties. The status of international treaties is the same throughout the world so they are no less binding on European countries, whatever their size.

Distinctions should be made between law applied within our countries (i.e. purely domestic law) & law applied between countries, and also between negative law & positive law. Note that the EU today does NOT restrict itself to law between our countries and can replace our national law. EU law should only be binding (i.e. superior to law from our democratic national parliaments) for negative law applied between our countries. In these cases law with purely national jurisdiction cannot help that much. Therefore I think it tolerable that negative international law be imposed by a qualified majority of countries. National law should be superior to EU law in all other cases (i.e. all purely domestic law, and legislation to create positive rights with an international dimension).

Consider for example a ban on smoking in public. This is an example of negative law in that it restrains people from an activity that is harmful to others. The law against smoking in public should be purely national because somebody smoking in the UK cannot harm anybody else in another member state of the European Union. The EU should not therefore be able to create law superior to national law to stop people smoking. Even if all 27 EU countries ban smoking in public the EU should still not be able to introduce a similar EU-level ban using law superior to national law because to do so would prevent any of those 27 nations electing a future government to change their law on smoking even though smoking in one country cannot harm anybody in another country.

However if we talk of airborne pollution from factories, power stations etc. that can be carried from one country to another then one can consider a role for binding EU law to protect people in one country from harmful activities performed in other countries. This is an example of negative international law, which is in my opinion the only area where EU law should be supreme.

Examples of international positive rights might be a right to university education in another EU country at the same subsidised rate as domestic students, or the right to use the health service of other member states. Most people鈥檚 attitude to such positive EU rights might be 鈥淥K, but who is going to pay for that鈥�? If the EU creates positive rights using law superior to national law then it is taking a decision to spend national resources which voters might prefer be spent in another way, and it is binding all future national governments to do likewise whatever future generations of their voters might think, which cannot be legitimate. Positive EU rights (whether with an international dimension or not) should be subordinate to national law such that voters can elect governments with a real power to change how their taxes are spent by opting-in or -out of EU positive rights legislation. This would also have the very desirable effect of automatically forcing the EU to design spending programs wisely such that they are attractive enough for voters in different countries to voluntarily consent to funding.