Monitoring: a Cure for the "Democratic Deficit"

Widespread relief at the recent Irish Yes to Nice should not obscure the genuine concerns raised by their earlier No. One issue that emerged consistently during the debate was a profound uneasiness about the direction democracy is taking in the EU. Worries that key decisions are taken behind closed doors – that power may be flowing to unaccountable institutions – are not entirely without foundation. Witness the acknowledgement in Brussels and elsewhere of a “democratic deficit” at the heart of the Union. Had every member state held a referendum, many noted, the chances of ratifying the Nice Treaty would have been slim indeed.

Niggling doubts remain, even now that the process is back on track. On whose authority was the first Irish referendum deemed inadequate? Why were other EU voters not consulted on these changes – arguably constitutional – affecting their countries? How acceptable is it that EU leaders forge ever onward, in the belief that the public will eventually “come around”? To ask such questions is not to carp over details. The chance to query motives and procedures in decision-making lies at the heart of democracy.

Similar questions may be asked about the current Convention on the Future of Europe, but it must nevertheless be a cause for celebration that the EU is at last addressing its “deficit”. Conscious of their historic role, the convention’s members refer often to the origins of European and American constitutional democracy. This is appropriate, given that the central problems of instituting democratic government have changed little in the intervening centuries. They remain: setting the extent and protection of individual rights; adequate separation of powers; recourse to courts, fair trials and independent judiciaries; freedom from corrupt, extractive or arbitrary rule. A core issue then as now is how to ensure that governments respect these institutional constraints – that is, how are they to be made accountable.

Accountability and monitoring: two sides of the same coin

In democracy, government is assigned certain powers on condition that “inalienable” rights are respected. Respect for the “rule of law”, the guarantees embodied in charters of rights and other constitutional safeguards against the arbitrary exercise of power, are vital institutional bulwarks against absolutism, however benign. The primary purpose of the complex institutional structures of modern democracies is to establish and maintain government accountability in these areas. Courts, the media, and civil interest groups, all of whom played an indispensable role in the emergence of Western-style democracy, are vital to monitoring government actions.

Accountability and monitoring are two sides of the same coin. But ensuring that government remains accountable once in power has proved a constant challenge. As Hannah Arendt said, in the context of the US Constitution, the most reliable check on power is competing power. But independent institutions are frequently eroded through contact with state authorities – and it is often difficult for public officials to resist collusion with other powerful groups or lobbies. Effective institutions must constantly evolve to meet the demands of dynamic societies and the shifting economic, social and technological environment within which governments and power function.

The increasing currency today of the term “monitoring” is testament to this institutional evolution. To talk explicitly about “monitoring” is an exercise in focus. Judicial independence must be guarded lest we lose a key internal constraint on government. Press freedom must be gauged regularly, or a precious forum for dissent may vanish. And civil society, however defined, will never bark if it is powerless, disorganised, penniless, or simply intimidated into silence by government. None of our mechanisms can be taken for granted. Monitoring is the grease in the machine of democratic government.

Democratising the Union

Within the EU, it often appears self-evident that such queries apply, if at all, only to candidate countries. And it is true that the basic framework for monitoring governmental constraint is younger and more fragile in those countries. But it is easy to forget that democracy did not consolidate in many member states until well into the twentieth century. Many governments are far from the democratic model of accountable protectors of the rights of the polity. As the reports of the EU Accession Monitoring Program, just released, illustrate, minorities in some member states do not enjoy full protection of their rights, and levels of corruption – in Greece and Italy for example – are sometimes higher.

The suspicion that accountability is only imperfectly achieved within the EU is further reinforced by the sometimes poor democratic practices of the EU’s institutions and the frequent lack of transparency in decision-making. Others point to its weak legislature – and, perhaps more crucially, the absence of institutional mechanisms to ensure accountability to elected national legislatures. Perhaps most strikingly, the EU institutions are the only governmental bodies in Europe that are free of the jurisdiction of the European Court of Human Rights – a discrepancy that could easily be remedied.

A European Constitution could go a long way to clarifying the functions – and limits – of Europe’s legislature, executive and judiciary. It should also set out the “fundamental” rights of European individuals – already partially elaborated in the Charter of Fundamental Rights approved at Nice. But if all these innovations are to have any meaning, it will be necessary to give teeth to democracy – and ensure that mechanisms to monitor the respect of rights, and the institutions and actions required to fulfil rights are in place, not just in individual countries but fundamentally at the heart of the EU’s own institutions. The Irish “No” camp talked about “sending a message to Brussels”. Let us hope, on behalf of Europeans who did not get to vote, that the message is heard.

Stephen Humphreys is coordinator and editor of the Open Society Institute’s EU Accession Monitoring Program (EUMAP) website. EUMAP has published a series of reports assessing the impact of the EU accession process on the development of human rights and rule of law policies. Reports are available at: http://www.eumap.org/reports