LAW MAKING

No constitutional reform of the Union will be complete without the extension of co-decision between Parliament and Council to all legislation. What is now termed the ‘ordinary legislative procedure’ was first introduced under the Maastricht treaty of 1992 to a very few items. Its scope was extended in every subsequent treaty revision: it is now time to conclude the process so as to simplify and facilitate EU decision-making and to make law making more democratic. Nothing should become law that has not been voted for by both chambers of the legislature. The residual system of ‘special laws of the Council’, where Parliament is only consulted or simply asked for its final consent, must be abolished. Extending co-decision will have far-reaching consequences. It will permit the deeper integration of all the sectors which flank the internal market, notably in social and environment policies [39].  It will transform the powers of the Union to harmonise VAT, excise duties and other forms of indirect taxation [40].  

Nothing should become law unless it is deliberated and enacted in public [41].  To highlight the role of the Council as the second chamber of the legislature, we return to a proposal made by the original Convention to concentrate the act of law making into a single formation of the Council of ministers [42].  The President of the European Council (or his representative) will chair this Law Council. 

Transparency must be improved in both chambers of the legislature. Those MEPs who are rapporteurs should be obliged to publish their legislative ‘footprint’, recording those whom they meet on a consultative or lobbying basis in drawing up reports. The Council should submit itself to the same disciplines that the transparency register for lobbyists now impose on Commission and Parliament. Both Parliament and Council should be obliged to publish impact assessments of their amendments to draft laws. The Council should emulate the practice of the Commission and Parliament by publishing its negotiation mandates on every draft law. Because much legislation is now passed at first reading stage   having been settled informally in closed trilogues between ministers, MEPs and the Commission   more attention must be paid to the systematic publication of working documents, agendas and minutes of interinstitutional business [43].

Greater transparency in law making assists democratic scrutiny by national parliaments, the media and the engaged citizen. More openness will help to dispel the widespread but sometimes unfair criticism about over-intrusive law stemming from ‘Brussels’. Each EU institution as well as every national parliament has a duty to check the quality of draft EU laws on the grounds of subsidiarity and proportionality. Adoption of precise criteria common to all would help improve this scrutiny process; but no revision of the treaties is needed with respect to national parliaments, whose primary role is to check the behaviour of their own national ministers in EU affairs [44].

The Commission will retain its principal right of legislative initiative. The European Parliament and the Council should continue to have the right to invite the Commission to initiate a draft law [45].  However, should the Commission refuse to take an initiative having been requested to do so, and having heard a justification by the Commission of reasons for its refusal, either Parliament or Council should be enabled to make a proposal for legislation on their own initiative conforming to their original request.    

[39] Articles 153(2) and 192(2) TFEU, respectively.
[40] Article 113 TFEU.
[41] Articles 16(8) TEU and 15(2) TFEU.
[42] Article 23(1), Draft Treaty establishing a Constitution for Europe, July 2003.
[43] Article 294 TFEU. Particularly valuable are the four column documents that record the evolving position of each institution. Such improvements should be subject to revised rules of procedure in both Council and Parliament.
[44] Article 5 TEU and Protocols Nos 1 and 2. 
[45] Articles 225 and 241 TFEU, respectively.

 

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