Radomir Tylecote is the author of this article.
It is now well known that, if resurrected, the Prime Minister’s Withdrawal Agreement would keep the UK under EU rules and regulations, but without representation in the system that makes them, through a potentially immovable backstop.
What is less understood is that, even since the referendum in 2016, this EU system has moved on. As the recent European Foundation paper Behind Closed Doors shows, EU decision-making, never democratic by any standards, has in the last decade become even less accountable and transparent. A system that has always concentrated power in the hands of small “law-making groups” – the Commission and Council in particular – has become even less democratic, making the rationale behind its laws more opaque yet.
To grasp how the EU has functioned until recently though, it is worth briefly outlining what its structure was intended to be, through comparison with the UK Parliament.
In the UK, Parliament is the law-making body. In the Commons, all members are elected; the other house, though not directly elected, acts in an advisory capacity, and cannot veto laws. All proceedings are televised, every word transcribed. The Government is drawn from Parliament, with its ministers answerable to it, and they must appear before it frequently. This Government can be removed at set intervals, along with every other member of the Commons.
The EU, meanwhile, is a system of law-making groups, the most important being the Commission – a small, unelected gathering, where note-taking is banned and whose chamber none may enter without the Commissioners’ permission. Only the Commission may propose laws. These progress to the Council, which passes legislation through a qualified majority vote (QMV), following the abolition of the national veto. The Council is attended by Coreper (the Committee of Permanent Representatives, i.e. Member States’ ambassadors), which tries to reach agreement on Commission proposals before they get to the Council. How Coreper reaches agreement is also hidden, but 70-90% of decisions are now made this way, then adopted by the Council without further discussion. The European Parliament meanwhile cannot propose law, often is not consulted, and typically can be ignored.
While the Commission has always been an obstacle to transparent decision-making, after it initiates proposals the Parliament and Council are supposed to be able to amend and occasionally block them. Our research suggests that, as the Commission takes greater control of the EU system, even this little capacity is being seriously undermined.
At the heart of this is the growing use of “Trilogues”, small and little-known negotiating groups that operate on behalf of the Commission and Coreper. Designed to be subject to even less oversight, they are “a legislative body in [their] own right” and “possibly the most powerful, [governing] the overwhelming majority of legislative procedures”.
These Trilogues include a small number of Commission representatives, MEPs, and civil servants. They aim to secure legislative agreement before any transparent process occurs, giving the Commission even greater control while preventing the public knowing why laws are being made. Once Trilogues agree a text, neither the Parliament nor Council are able to change it, so with national scrutiny rendered “difficult, if not impossible”, Member States’ ministers now have little involvement.
Moreover, in both the European Parliament and the Council, the UK is now the country most often on the losing side, with Germany and an entrenched bloc of its Eurozone voting allies the most frequent winner. Even before it loses all representation in the EU institutions, the UK is already consistently outvoted on issues of profound national interest, like financial regulation, and has been unable to achieve any meaningful reform to this system.
These developments are disturbing indeed, as the continent that gave the world democracy and equality before the law is increasingly governed away from public view. Remaining under this system’s rules – either without representation, as the Withdrawal Agreement proposes, or via a second referendum – would severely undermine our democracy.