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The legislative process as it is and as it should be #3

Posted by Helen Monday, October 04, 2004

We have looked at the how the legislative process is supposed to be operating in this country (and still is, in theory) and the problems that have been encountered on the domestic front. Now, here is what all our readers have been waiting for – the European dimension.

Problems on the European front:

Since the European Communities Act of 1972 the whole constitutional situation has changed, though there is a pretence among many of the subject’s students that this is not so. They continue discussing the British Constitution and the European Union (formerly known as European Community, before that the European Economic Community) separately. In the same way, the British media still insists on discussing the EU under the heading of foreign affairs.

According to the European Communities Act (and though the Act has been amended, this has always stayed in place) Article 2(2), European legislation is superior to British. Therefore, the British Parliament cannot reject or even amend the legislation as it comes. The only thing that can be done is to try to influence amendments at various earlier stages as the European legislation goes through the various procedures in Brussels (or Strasbourg).

According to legal opinion, implied repeal does not apply to any legislation that is brought in under the European Communities Act but its provisions exist by will of Parliament. At present, therefore, Parliament can repeal the superiority of EU legislation. That will change if the proposed EU Constitution is adopted.

EU legislation follows a different pattern from the British one. Instead of moving from the particular to the general, it moves from the general to the particular. Its starting point is the treaties signed at various times. It then moves through Framework Plans that, as one would expect, delineate the general framework of legislation that intends to achieve certain very general aims. One of those going through the works at the moment is the Financial Services Plan that has already produced a great deal of legislation that will affect the City (usually adversely) and will produce more.

The EU’s idea of governance is managerial rather than political. It lays down plans for legislation, for the amendment of legislation or, (a favourite one, this) consolidation of legislation for ten, fifteen, twenty years. In that period elections may or may not happen, governments may or may not change, the membership of the European Parliament may or may not alter. All that is irrelevant to the legislative plans, which grind on relentlessly.

The other aspect of the managerial process of governance is the Annual Commission Work Plan. Its name says it all. The Commission outlines its intentions for the year and proceeds to follow it up. Anything left over, will be picked up in the following year’s plan.

Given those two frameworks, the actual members of the Commission and even the much more powerful Committee of Permanent Representatives (COREPER) are irrelevant. The general rejoicing at the supposedly free-trade Barroso Commission that is due to be anointed on November 1 was misguided.

Few British politicians understand the long-term legislative process. Nor, to be fair, could they do much about it, even if they did understand, as their own term is bound by those inconvenient things called elections. More seriously, they do not realize the importance of this as far as Britain is concerned. They assume that legislation begins at the point when a directive or a regulation is drafted or, even, in more extreme cases, when it is presented to the national parliaments. At that point they start consultations and generally raise the alarm but it is too late, as they had signed up, without realizing so, to the process that was to produce the legislation they dislike.

Forms of EU legislation

1. Directives – proposed by the Commission after a long process of discussion and consultation and passed by the Council of Ministers or, in the cases of co-decision by the Council and the European Parliament. In theory, these have to be passed by national legislatures. In fact, few of them require primary legislation and they are, therefore, put into law by Orders in Council (see above). However, as Parliament has no right to reject EU legislation (on pain of the country being taken to the ECJ and/or fined) the process means little in reality.

2. Regulations – by far the most favoured way of passing legislation, proposed by the Commission and passed by the Council of Ministers, by the Council and the European Parliament or by the Commission itself. These are directly applicable from the day they are signed or the day specified in the text. Details of implementation are left to member states but these documents are ever more detailed and there is little lee-way. In fact, what the British regulations do, whether put together by a Ministry or an Agency, such as the Food Standards Agency or the Environment Agency, is to bring previous British legislation in line with the EU one. Little else is left to do.

3. Decisions – in theory non-binding, in practice used as an additional form of EU regulation, with British ministries and agencies adjusting the existing regulatory structure to bring it into line with the new one.

We need to get from where we are, a form of unaccountable governance by management to where we want to be, a constitutional democracy with legislation conducted in the open and legislators being accountable to the people over whom they legislate. Then we can think of reducing the scope of government altogether. But first and foremost we must understand how the system works in reality.