Home Flexcit Impact Assessments Monographs Contact

Brexit: the capacity to change

2021-07-11 06:44:36

It is an interesting, if alarming reflection on the state of the art that some of our own readers believe that EU laws can be proposed either by the Council or the European Parliament, in addition to the Commission. Yet it is a fundamental element of the founding treaty that the only the Commission (with a few technical exceptions) has what is known as the "right of initiative".

Nevertheless, it is true that the European Council or Parliament can request the Commission to make a proposal for a new law. Since April 2012, by means of the European Citizens' Initiative (ECI), EU citizens may ask the Commission to make proposals. But, for an ECI to be triggered, at least one million signatures from at least seven of the Member States are required.

In this respect, though, the fact that the Commission might be asked to frame a new law in response to another body is relatively unimportant. Such a proposal can only be made if it is exercising a treaty competence and the Commission has never been reluctant to make new laws if they further the cause of integration.

Sometimes, the Commission will "fly a kite" by planting proposals with favoured MEPs, for them to prepare for debates "own initiative" reports, suggesting a particular measure. Depending on the reaction, the Commission may respond fairly quickly, or kick the idea into the long grass.

Where the "right of initiative" has its greatest effect, though, is in enabling the Commission to play out its role as "guardian of the treaties". Essentially, since the treaties are implemented by EU law, it performs it role by protecting the body of law, known as the Union acquis, preventing it from being diluted or dismantled.

The way it achieves this is relatively simple because, once a law is passed and is part of the acquis, repealing or amending it requires another law. Thus, it is not possible to remove or amend a law from the acquis without the approval of and active participation of the Commission.

This is known as the "ratchet effect", the embodiment of the engrenage principle. Unless a law is obsolete and no longer serves a purpose, generally, the only reason a law will be removed is to allow it to be replaced with another one, or because the original requires updating and/or strengthening. The latter will also apply to amendments.

As time has passed, this power has actually been strengthened in that, not only does the sole power of proposal reside with the Commission, it has the power to withdraw a legislative proposal.

At first sight, this power might seem unnecessary but what can happen in practice is that as a proposal goes through the Council and Parliament, it can be amended. And, very occasionally, the proposal is so mangled that the Commission considers that it no longer serves the purpose it intended. On its own initiative, therefore, the Commission can withdraw the draft, which it can then at some time in the future - re-submit, with or without changes.

Through these two mechanisms, the Commission retains its control over the legislative process. Only it can propose a law, only it can propose to remove or amend a law, and any amendments made during the passage of a new law though the system can be rejected by virtue of its ability to withdraw a proposal.

This makes for an interesting contrast with the British system of law-making. Although, the government (acting as the executive) has a right of initiative, unlike the Commission, it doesn't have a monopoly. Parliament itself, through a variety of mechanisms, can propose new laws, or repeal existing ones.

And while the government can withdraw any one of its Bills, because parliament insists on certain amendments, in theory the parliament could reintroduce the measure, as amended, and pass it into law.

All this though, applies to what is known a primary law in the UK, Acts of Parliament and, in the EU, Decisions, Directives and primary Regulations. Different rules apply to what is known as secondary or delegated legislation.

Here, though, there are differences in terminology. In the UK, all Regulations are deemed to be secondary law. In the EU, only so-called "delegated acts" such as Commission implementing regulations are deemed to be secondary legislation.

As regards the framing of proposals for secondary legislation, the Commission and the UK executive have in common the sole right of proposal. And, in respect of the approval of this type of law, in each case respectively, the European Parliament and the Westminster parliament must agree to the law.

Where there is a crucial difference though, is in the passage of European Regulations into national law, as opposed to Directives. In the latter case, Directives, once approved at EU level, must be transposed into national law, which requires approval of national parliaments.

In relation to European Regulations, though whether primary or secondary no input from national parliaments is required (or permitted). The regulations have what is known as "direct effect". They apply directly to all member states, the moment they are "done in Brussels".

The effect of this process is completely to bypass national parliaments, as they have no part in the legislative process. But also, by convoluted means, it can bypass ministers, giving considerable power to national officials (civil servants).

I've actually seen this happen in practice, where a Minister wanted to take a particular course of action, not specifically covered by EU legislation taking advantage of a gap in an otherwise "occupied field".

In this case, a horrified senior civil servant told the Minister he could not act, as there was an EU law in the pipeline. There actually wasn't at that point. But our brave civil servant hopped on an aeroplane to Brussels to ask his counterpart in the Commission to frame a regulation who was happy to oblige.

In this case and many others technical regulations are approved by a process known as Comitology (spellings may vary). Here, the drafts are submitted to technical committees, made up from delegates from member states nominated by the very senior civil servants who have framed to laws in the first place.

Thus, senior national civil servants have a mechanism whereby they can insert their own laws into the system and get it agreed by their own people, with no political input, then for them to be passed "on the nod".

It is said of the process of Comitology that there only three people in the world who have ever fully understood the system. One went mad, one other committed suicide and the third became a hermit on a desert island.

Whichever way you put it though, with the bulk of EU coming through the system now in the form of regulations before the UK left the EU, Westminster was getting more and more marginalised, taking no part whatsoever in the making of the majority of laws. And this was one of the main reasons why things had to change.

And yet, while Brexit has brought changes, they have not delivered on the promise of "taking back control", promoted by Vote Leave Ltd. By and large, while control over the law-making process has been repatriated, most of the power has been assumed by the executive rather than parliament which makes excessive use of regulations.

And while, theoretically, parliament can reject these, in practice it is rare for MPs even to debate them, while mostly there is no vote; the laws are approved by default and, when the government has a large majority, stopping them is all but impossible.

Bearing in mind that most technical laws covering a wide range of subjects whether bearing a national or EU label stem from international bodies, leaving the EU has not given us the "freedoms" many expected and nor will it, without fundamental change.

However, as long as we were in the EU, things could never change. Now that we have left, we have re-acquired the capacity to change. Whether that will materialise is another question. But that is what this is all about.

Also published on Turbulent Times.