Jean Monnet Center at NYU School of Law


3. Democratic Deficit: New Chamber?

1. What has just been argued puts in proper perspective the currently fashionable thesis that the European Parliament needs a second legislative Chamber. Given that all legislation requires approval by the Council, representing the State governments, one legislative chamber is already in being. Under co-decision (and, to a more restricted extent, consultation) procedures the European Parliament plays the role of a second chamber. Therefore any new legislative body would function as a third chamber, unless an existing one were to be abolished, or be deprived of legislative competence.

2. One possibility by way of a so-called "second", but actually third, chamber of the European Union legislature, would be to establish a new legislative chamber by nomination from Member State parliaments. A three-chamber legislature would not, however, seem readily workable and would yield a doubtful democratic gain.

3. This, in effect, follows from critical scrutiny of the considerations that have been taken to point towards the additional legislative chamber:

· On the one hand, electoral turn-out for European parliamentary elections tends to be low in all member states relatively to parliamentary elections at the level of the state or its internal nations and regions. Turnout has been declining election-by-election since the introduction of direct elections to the European Parliament. The Irish Referendum on Nice has given out another danger signal about detachedness from the Union among the citizen body.

· Again, there is an ever-increasing volume of law and regulation that has its origin at Union level, and this has reduced the real scope for law making in what remain at least in theory sovereign legislative bodies of the member states. Member State Parliaments may find themselves obliged to transpose large bodies of law that their members were unaware of during the European legislative process, and of which they may not approve, while their legislative discretion in other domains is limited by the obligation to respect the community acquis.

· The same applies to a devolved parliament, such as the Scottish Parliament under the present constitutional dispensation. We belong in one of the several member states where federal or quasi-federal forms of government exist that allocate to internal nations or regions legislative and executive power in relation to important domains, such as home affairs and justice, education and research, cultural affairs, industrial development, and internal transport. It is extremely important to ensure that there are clear lines of communication in both directions connecting legislatures at this level to the Union legislative process in a way that makes possible prior scrutiny of and comment upon legislative proposals at sufficiently early stage in the process. It is no less true of these legislatures that they are bound by the acquis communautaire, and that in many domains their legislative activities are affected by the obligation to transpose relevant Directives in a locally appropriate way.

· This relative overshadowing of parliaments (central, devolved, or federal) in Member States is at its most alarming in those areas which are subject to qualified majority voting in the Council of Ministers, but not to co-decision with the European Parliament. Democratic self-government requires legislative decision-making to take place in public after public deliberation by elected legislators. The Executive branch of government has properly the role of preparing legislative programmes and bringing these before the legislature. The legislature, as a democratically elected parliament has then its proper task of deciding whether to reject or to adopt the executive's proposal, with or without amendment.

· In the domains that are now subject to decision by the intergovernmental method in the Union's second and third pillars (and even on crucial matters including agriculture and fisheries in the first pillar), legislative democracy is therefore severely compromised. Members of the Executive Branch of the several states deliberating in secret become the effective legislature for the Union, without adequate answerability either to the Parliaments of the member states or to the European Parliament.

· Even where co-decision prevails, deliberation in the Council proceeds in secret, not least at the stage at which legislation is finally being adopted by way of a `Common Position'. This also applies where there is a difference between Parliament and Council that goes to the final legislative stage, that of a `Conciliation Committee', whose report (if an agreed report can be achieved) must be given a final reading in each of Parliament and Council. Hence the Executive government of each Member State makes its own input to the community legislative process in a way that precludes real answerability to any domestic legislature. The power (often in practice no more than a theoretical power) to dismiss a government or to censure a minister after the event is no substitute for the power to control or at least influence the process of law making in its detail during the law-making process.

4. Rather than seek to remedy all this by having a third chamber, it would be better to amend the Treaties so as to make the Council as a legislative chamber open and public in its deliberations. By this means alone would it be possible to increase the opportunity for pre-legislative scrutiny both by Member State parliaments and by internal-national or constitutional-regional parliaments within the states. It is also urgent to extend the co-decision procedure to all domains of law-making in which Qualified Majority Voting prevails in Council.

5. Alternatively, it has been suggested that the Council should abandon its law-making role and assume the totality of executive power, including the power of legislative initiative. This would displace the Commission from its present role and demote it to being essentially a superior administrative college.

6. Along side of that, the European Parliament would be transformed into a two-chamber legislature. The present Parliament would retain its present composition and functions, but a new upper house would be added on the basis of secondment of members of national parliaments, to exercise the revising and stopping power traditionally possessed by a senate. This, it is argued, would secure that laws binding on national parliaments would come into existence only by the consent of representatives of those parliaments. Democracy would be better served at both community level and member state level under such an arrangement.

7. There are two serious objections.

· First, as an executive, the Council would be one that is effectively unanswerable to any democratic authority. For its members each hold office by retaining confidence in their own member state parliament, and there can be no collective accountability of the Council as such either to the state parliaments or to the European Parliament, whether in an upper or in a lower chamber. The real transfer of executive power would effectively be to senior civil servants in the Committee of Permanent Representatives, and Ministers acting on their advice. Recent changes, dramatically exemplified by the dismissal of the Commission in March 1999, have by contrast secured that the Commission has become substantially and effectively answerable to the European Parliament.

· Second, on the legislative front, those seconded from member state parliaments would bear such heavy legislative responsibilities that it would be difficult for them to remain closely in touch with the work of the domestic parliament. How then would the seconded members keep their colleagues at home genuinely alert to, or committed in a well-informed way to, legislative developments at community level? Or should seconded members be subject to ex ante instructions from the home parliament, and, if so, how well-informed could these instructions be?

In short, this arrangement would replicate the very same problem as exists at present concerning ex ante scrutiny by national parliaments of decisions by ministers in Council.

8. Moreover, in relation to all proposals of this kind, it may be questioned on what democratic basis a selection would be made from among members of national parliaments. After all, members of these parliaments have primarily a mandate to represent their own constituents in the state Parliament, to hold the state's government to account, and to participate in law-making there. For a 'second chamber' to take on more than an advisory role would be difficult to justify as a way of diminishing a 'democratic deficit'. For any system of appointing or electing a subset of MPs would raise as many questions of democratic legitimacy as it would solve. Each Parliament would presumably retain the right to devise its own scheme of selection or election, with consequential problems about the genuinely representative character of the whole assembly.

9. Above all, in the Scottish context, one must say that the cure would be worse than the disease. No more would be done than to find some way of establishing an additional chamber comprising persons elected or appointed from Member State Parliaments. Unless in the UK there were an alteration to the Upper House such as would give it a "regional" representative character like that of the Bundesrat, the interest and the legitimate concern of the Scottish Parliament would continue as far from any satisfactory resolution as at present. Even if this did happen, Scottish representation in the reformed upper house would be as much in a minority as in the lower house. The overall size of a `second chamber' would become severely problematic, to say the least, if an attempt were made to accommodate delegations also from national and regional parliaments as well as from those of Member States. This is simply a function of the very large number of regional parliaments there now are in the Union.

10. It therefore appears that this model would generate greater problems than those (if any) that it would solve in the way of democratic deficits.

11. To repeat a point made already: What is most urgent would be to make Council as a legislative chamber open and public in its deliberations, and by this and other means increase the opportunity for pre-legislative scrutiny both by Member State parliaments and by national and regional parliaments within them. The avenues of influence are then through the different links that obtain between parliamentarians at all levels inside the state. Much can be achieved by active mutual engagement of colleagues, especially colleagues of the same party affiliation sitting in different parliaments. It is also important to make use of links (whether of affinity or of opposition) between parliamentarians and Ministers who take part in Council meetings.

12. At the preparatory stage of proposals, active links to the Commission have great value, and will continue to do so long as it retains the right of initiative (for which it is so much better fitted than the Council). Wherever there are effective alliances of governments or parliaments on the level of the constitutional regions in relation to specific issues of concern, it can be presumed that collective pressure on the Commission will typically receive a yet more attentive hearing than isolated approaches. It is welcome to note in the White Paper the extent to which the present Commission's stance is cordial towards the "regional" input, especially from the constitutional regions.

13. At the deepest level, the only effective answer to a democracy deficit in the European Union is alleviation of the information deficit. Citizens need as much and as clear information as possible about all the parliaments and executive bodies that contribute to the overall frame of government. This applies particularly but not only to matters affecting the economic, employment, cultural and environmental interests of citizens. Collaboration among the Parliaments of the Union, in the setting of the present scheme of institutions, can only be brought about through establishing optimal conditions for information-exchanging and for mutual understanding of each others' competences and activities. Recourse to new technologies and establishment of stronger and more systematic working relationships between parliamentary committees and political groups could help to generate greater synergy than exists at present.

14. The Conference of the Community and European Affairs Committees of the Parliaments of the European Union (COSAC) is most intensive form of collaboration that has been achieved so far. It was brought to the forefront of attention through the Protocol on the role of the National Parliaments in the European Union, annexed to the Treaty of Amsterdam. COSAC came into being in May 1989 when Presidents of Parliaments of Member States agreed in Madrid to reinforce the role of member state parliaments in the Community process by bringing together from the Member States the committees specializing in European Affairs. Over the years there have been several important developments in this structure. In 1991 Rules of Procedure were adopted.

15. However, COSAC can only reach decisions by unanimity. This is a profound obstacle to its broadening the scope of its work. Unless there are changes to the capacity of COSAC to adopt decisions, the aims set out in the Amsterdam Protocol are not realistically achievable. But such changes would involve conferring a questionable degree of power on the members of the Committees who come together in COSAC, and the Scottish and other like interests would figure no better. In summary, COSAC has almost insurmountable difficulties in dealing with concrete legislative proposals, since it is adapted by its character chiefly to giving its opinion on questions of a general institutional kind.




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