National Parliaments' lawmaking activity with stricter Constitutional budget limits: constraints and opportunities

Transcription

1 National Parliaments' lawmaking activity with stricter Constitutional budget limits: constraints and opportunities Nicola Lupo (Luiss Guido Carli Rome) ECPRD 7-8 June 2012 Senato della Repubblica-Camera dei deputati

2 Outline 1. The framework: Parliaments law-making activity as a strongly constrained activity 2. EU and national forms of government 3. The effects of the new European economic governance on national forms of government 4. The effects of the Italian Constitutional reform on balanced budget 5. In search of political responsibility, between legal and political scrutiny 6. New opportunities for Parliaments? 2

3 1. The framework (1/4) Traditionally, Parliaments as sovereign or quasisovereign bodies: free to approve or not approve a law, and to draft it as they like. Nowadays, especially in the EU Member States, Parliaments law-making activity has become a strongly constrained activity, because of: - Constitutional rigidity; - diffusion of Constitutional review of legislation (with the exceptions of UK and the Netherlands); - principle of primacy of EU law; - international treaties (especially ECHR). 3

4 1. The framework (2/4) More constraints mean a more complex activity The growing complexity of legislation flows from the structural elements of contemporary society, and in particular from the evolution of contemporary social and political systems. Social complexity and legislative complexity are closely interrelated: the former partly justifies the latter, while the latter contributes to further increasing the former (Conference of the Speakers of the EU Parliaments, Legislative complexity and the role of Parliaments in the era of globalisation- Lisbon, May 1999). Therefore, increased complexity of the legislative output, but also of the law-making process. Usually, one of the effects of the higher level of complexity is considered to be a bigger role for the Executive in the legislative process and in its own normative activity. 4

5 1. The framework (3/4) Stricter Constitutional Budget Limits deriving from EU Law ( six-pack and two-pack ) and now, according to the Fiscal Compact, from national Constitutions ( preferably ). This solution seems perfectly consistent with the composite nature of the EU Constitution The fact that the criteria for national budgets were set only by EU sources of law (Treaties and regulations) was not sufficient to bring member States finances closer to those criteria. The criteria could be eluded quite easily, as the Greek case showed. In the absence of any domestic constraint (and scrutiny), being admitted into the EMU without making too many sacrifices could even be considered a success for the 5 national political elite (at least in the short term).

6 1. The framework (4/4) When push comes to shove, European integration still needs democratic legitimation coming from the national level, both in a formal and substantive sense (P. Lindseth, Greek Sovereignty and European Democracy, november 2011). This implies that amendments to national Constitutions introducing the principle of budget balance should be approved with the active involvement of the main constitutional bodies (Goretti-Rizzuto) and debated by public opinion in each country. Was this the case in Spain and in Italy? 6

7 2. EU and national forms of Two basic assumptions: government (1/3) The good functioning of national forms of government is essential for the good functioning of Europe s compound democracy (art. 10 TEU) National forms of government are strongly influenced by the European integration process. Form of government: relationship between Constitutional bodies, namely between Parliament and Executive 7

8 2. EU and national forms of government (2/3) Till now, the EU integration process has determined a strengthening of (double-sided: National and EU Institutions at the same time) Executives at the expense of Parliaments This process has received a further acceleration during the last two years: the European Institutions, in order to address the crisis, have basically followed the intergovernmental method and focused on the Executives (also leading to their substitution, in some Member States) Moreover, in many national spheres, there has been an increased regulatory activity of the Executive, which has been very intensive in order in order to address the financial crisis (especially, in Italy and Spain). 8

9 2. EU and national forms of government (3/3) After the Treaty of Lisbon, national Parliaments have become, as is well known, also autonomous actors in the EU The jurisprudence of the BVG (2009; 2011; 2012), founded on the guarantee of (a traditional conception of) the democratic principle (artt. 1, 38, 79.3 GG), is effectively protecting the role of the Bundestag (even from itself), in order to safeguard its role. Therefore, from an institutional point of view, the BVG seems to be indirectly safeguarding the role of all the national Parliaments as further steps are made in the integration process. 9

10 3. The effects of the new European economic governance (1/4) The main question: what will be the net effect on the equilibrium between Parliaments and Executives (especially regarding legislative decision-making) of the new European economic governance? The answer depends on the features of the form of government of each member State and on the features of the new Constitutional provisions At the moment, we can outline some general hypotheses, mainly based on theoretical considerations (but after today, I hope, with more information, thanks to ECPRD) 10

11 3. The effects of the new European economic governance (2/4) The easiest answer: the fiscal compact will confirm the Executive s authority on fiscal policy and will imply even more hurdles for the legislation drafted by Parliaments and in Parliament. It will be very difficult for MPs to approve amendments drafted and submitted by themselves, without the (formal or substantial) assent of the Executive. Another possible answer: both Executives and Parliaments will be constrained, but the limitations will be stronger for the Executives, while the Parliaments could have the opportunity to develop some new functions. 11

12 3. The effects of the new European economic governance (3/4) Effects on national Executives Effects on national Parliaments Quantitative budget limits set in Fiscal Compact and in the 6- pack Surveillance missions of the EU Commission for Member states More detailed financial procedures in national Economic Constitutions Participation in the Stability and Convergence Programs and in the National Reform Programs New scrutiny and oversight instruments on fiscal policy, based on pre-defined parameters Inter-parliamentary cooperation 12

13 4. The effects of the Italian Constitutional reform on budget balance (1/2) Italian Executive: comparatively weak in the Constitution, strong (and unconstrained) in reality The Constitutional reform on budget balance (Const. Law n. 1/2012) has recognized (and therefore limited) the role of the Executive in budgetary and legislative policies and has provided some new powers to the Parliament (both strengthening its scrutiny function and setting up an independent body operating within the Houses of Parliament) 13

14 3. The effects of the new European economic governance (4/4) Interparliamentary Cooperation (Article 13 Fiscal Compact) As provided for in Title II of Protocol (No. 1) on the role of national Parliaments in the European Union annexed to the European Union Treaties, the European Parliament and the national Parliaments of the Contracting Parties will together determine the organisation and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments in order to discuss budgetary policies and other issues covered by this Treaty. It sounded strange to some (Amato), but it could make sense, anyway (Manzella): the Executives, in the exercise of their strategic functions, expressly agree on the need for inter-parliamentary cooperation (without choosing between articles 9 or 10 of Protocol no. 1) A new challenge for National Parliaments, which can gain some leeway at the expense of their Executives, using interparliamentary cooperation and relying on the new Constitutional constraints, which limit the action of the Executives (both on national and on European level).

15 4. The effects of the Italian Constitutional reform on budget balance (2/2) The Constitutional reform on budget balance has contributed to partially breaking Constitutional immobility about the form of government. More Constitutional reforms and some amendments to parliamentary rules are probably on the way Under the logic of Constitutional equilibrium, it is better that the Executive has powers (budgetary, but not only) which are recognised and limited by the Euro- National Constitution, than powers that are not clearly defined and therefore exercised without any counterbalance. Opportunity for an enrichment of parliamentary policysetting and oversight functions 15

16 5. In search of political responsibility: technical, legal and political scrutiny/oversight Political responsibility tends naturally to dissolve in multi-level systems of government. Budget is one of the main instrument to identify the chain of political responsibility and to try to re-connect European democracy. The scrutiny on budget and on legislative policies decided by the Executives (at national level; but mainly, in their different aggregations, at European level and often as the outcome of long negotiations) requires clear parameters and technical, legal and political checks. In the new European economic governance, the Commission, the independent bodies and the Court of Auditors exercise a technical oversight, the ECJ and the Constitutional Courts a legal oversight and the European Parliament and the national Parliaments a political scrutiny. 16

17 6. A new opportunity for Parliaments? (1/3) To conclude, a look at what is happening according to the suggestions of two well-known Constitutional theorists: Jon Elster and Stephen Holmes. In both cases, it seems, new constraints can be deemed not to be so bad news for Parliaments. Elster: (Constitutional) constraints and pre-commitment are necessary instruments, in a world of limited rationality, in order to achieve better outcomes (and to solve timeinconsistency problems, inter alia). Famous analogy between Constitutional provisions and Ulysses having himself bound to the mast, in order to resist the sirens song. Holmes: criticizes Elster s assumption, arguing that Constitutional provisions could have historical roots in the desire to enhance, rather than restrict power. A better analogy could be drawn with grammatical rules. An old tale, taken from Bodin, on the origins of parliamentary immunity.

18 6. A new opportunity for Parliaments? (2/3) The Six Books of the Republic (1576) contains a fascinating discussion of how constitutional restraints can help solve the principal-agent problem. The French king, Bodin observes, has an extremely difficult time learning what his provincial agents are doing in his name. He cannot easily solve his monitoring deficit bureaucratically, by assigning a second set of officials to keep tabs on the first. The solution chosen, observes Bodin, is parliamentary immunity. Representatives in the Estates General have the right to complain loudly about the behavior of any of the King s agents, and to do so without any fear of punishment. Legally exempt from any liability for accusations leveled in the Estates General, representatives provide the king with information vital to his rule but which he would otherwise have no way of obtaining.[ ] This grant of immunity to those who lodge complaints against royal officials is expressly designed to allow the principal to monitor his agents. The assembly, precisely because of its free-speaking independence, functioning as a watchdog and informationconveying machine (Holmes, Constitutions and Constitutionalism, in Oxford Handbook on Comparative Constitutional Law, 2012).

19 6. A new opportunity for Parliaments? (3/3) I do not want to suggest that contemporary Parliaments can still exercise in the same way that watchdog function regarding fiscal policy: the world has changed so much and Bagehot s expressive function is not anymore an exclusivity of Parliaments. If Parliaments want to exercise it, they need to act together with other institutions (parliamentary and not). However, as was the case in Bodin s time, we are facing new Constitutional provisions and new constraints. This could give rise to a big change in parliamentary functions and prerogatives: something new could be on its way and we need to be ready to discern and facilitate new transformations of Parliamentary functions.