In the world of politics, having the authority does not necessarily mean you have the power, and having power does not automatically give you the authority, but our lives are governed by those with the power, and most powers in political circles are powers that have been taken, not where authority has been explicitly given.
We see this daily in our supposedly parliamentary representative government. The Authority is with our MP’s, but the power is with the Executive, who have collected this power by taking it, rather than having been granted it.
To exercise this power, various systems have been introduced, often as additional clauses in Acts that have been passed through parliament, but have been allowed to come into being as the thrust of the Act was considered more important than fighting the clause. The worst of these is the Statutory Instrument.
Statutory Instruments delegate authority to ministers to amend or supplement Acts of Parliament, and to present them to parliament where technically it is possible to challenge that delegated authority, but in a place where few MP’s bother to read primary legislation before voting you can be assured that even fewer bother to read SI’s as they are presented. In general SI’s are passed in bulk on a show of hands by the minimum number of MP’s required to be present in the chamber. The procedures for this are shown here.
So far 343 such Statutory Instruments have been presented to Parliament in 2010, and whilst most are merely small administrative matters or corrections to primary legislation, many have huge and far reaching consequences, but to my knowledge none have so far been challenged this year.
We know that this presents our Parliament with a democratic deficit, and leaves our MP’s with little more to do than to rubber stamp legislation put before it. But at least the executive is, in the main, made up of elected officials and we can vote to remove them every 5 years.
Now imagine if the same powers to amend or supplement legislation were confered on a totally unelected body, one that people have no direct say in, no direct vote for and have no power whatsoever to remove.
This was how the Soviet Union organised its affairs.
The Congress of People’s Deputies created in 1988 by amendment to Constitution was the highest organ of legislative and executive authority, consisting of 2,250 deputies, about 87 percent of whom were CPSU members or candidate members and some of whom were elected in the first multicandidate (although not multiparty) elections since the early Soviet period. It was slated to meet once a year for a few days. It met for the first time in May 1989; deputies openly discussed issues, elected a chairman, and selected about 542 deputies from among its membership to constitute a reorganized, bicameral Supreme Soviet of the Soviet Union, a standing legislature slated to remain in session six to eight months annually.
Sounds very democratic doesn’t it, but we know from history that it was far from democratic, and it can be compared directly with 2 institutional bodies already present in the EU, The European Parliament and the Committee of the Regions. (The CoR was granted further powers under the Lisbon Treaty, and is expecting even more powers on regional matters by 2013 and is expecting longer term to become part of a bicameral system).
But back to the Soviet Union.
The Supreme Soviet was constitutionally the highest organ of legislative and executive authority but in reality met only a few days annually; the Presidium managed affairs throughout the year. The Council of Ministers administered party decisions, mainly regarding economic management, by delegating authority to the Presidium.
Both the Council of Ministers and the Supreme Soviet delegated authority to the Presidium. Here I come back to my opening line about authority and power. There was obviously a need in the Soviet Union for any legislative body that met so infrequently, even if it was the highest authority, to delegate its authority, and having a one party state, it fell upon the Presidium of the Communist Party of the Soviet Union (CPSU).
The parallels with the EU have long been made, but for so long have been cast aside by pro EU supporters by saying that the Council of Ministers held the real power, were the executive, so it could not mirror the soviet union. But no longer.
With Lisbon now subsumed into the TEU, and the newly renamed TFEU, power (not necessarily authority), but real power is being consolidated by the newly formed Presidency and the executive of EU Commissioners, and the ever present European Commission.
The European Commission has the same role in the EU that the Politburo had for Soviet Russia, an all powerful administration machine, drafter of legislation on behalf of the presidium, but most of all it gained it real power from those delegated authorities.
Whilst the Presidency and the Commission can amass the power, it still lacks the authority, that still lies with the Council of Ministers and the EU Parliament. Until now.
Anyone trying to understand the effect of the Lisbon Treaty on the decision-making procedure needs to understand the use of Article 290 of the TFEU which allows the legislator to delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act.
In other words, a form of Statutory Instruments for the European commission. Government by executive order.
In a communication from the European Commission Implementation of Article 290 of the Treaty on the Functioning of the European Union (COM 673/09). In its 15 pages it states:
“The scope of Article 290 cannot be determined simply by examining in detail the terms used by the authors of the new Treaty to define delegated acts; the provision also needs to be put into context, by looking in particular at its historical connection with the regulatory procedure with scrutiny and at its links with Article 291 on implementing acts. For it is around Articles 290 and 291 that the legal framework will have to be constructed to replace the comitology system established under the Treaty establishing the European Community.”
Yup. Amending the Treaty already, and it refers to the same delegated authority that allow British ministers to issue Statutory Instruments, and the same delegated authority that allowed a small number of unelected members of the Presidium and Politburo to rule the USSR.
Now just like Statutory Instruments, the elected bodies can challenge it. But just like the MP’s in the UK, the likelyhood of MEP’s not daring to upset the gravy train and their troughing by raising objections means that power, real power, to almost rule by decree over 500 million people across Europe will very soon rest in every legal sense with a few very powerful unelected beings in Brussels.
Powers taken are almost never returned, and the Commission makes this point quite clear in its document:
The Commission believes it is preferable not to increase the institutions’ workload by introducing a binding system of short-term delegations. Delegations of power should in principle, therefore, be of indefinite duration. Such a practice would, moreover, be entirely consistent with the current situation. Experience shows that the legislator does not, as a general rule, wish to impose a time limit on the powers conferred on the Commission, even when conferring on it responsibility for taking quasi-legislative measures.
The Commission already has power (you may like to read MAIN CHARACTERISTICS OF THE COMMUNITY LEGAL SYSTEM, Sources And Scope Of European Union Law) using the legislative processes over all EU citizens (private persons, Member States, Union institutions), now it will have the authority as well.
As for the UK, our very own EU Scrutiny Committee did take the time to read the Communication from the Commission. This was their response. We clear the document from scrutiny and have no further questions to the Minister. They don’t even fight it any more.
The only way voters in the UK are going to have any say on this consolidation of power by the EU is via a referendum, and the window of opportunity is fast closing (certainly not the 5 years that Cameron proposes).
So if you want your say, get over to The Albion Alliance website now, look up your candidates and get writing. Insist that they pledge to grant you a vote on the EU, and insist that they do this BEFORE they are elected, so they cannot back out of it when they get to Westminster.