Can secondary legislation be scrutinised during a crisis?

The flow of public consultations or secondary legislation does not look like it is going to slow up, even during a crisis.

An important step is for the Parliament and the Council to scrutinise the Commission. Today, they are neutered in their ability to give deep scrutiny to the flow of new initiatives and secondary legislative proposals the Commission continue to adopt.

How to by-pass scrutiny – ignore them

Years ago, I came across a case when the Commission found an effective way of getting secondary legislation through the European Parliament. They just forgot to inform them. They never transmitted the proposed measures.   Piles of laws got adopted – some of them illegal as it came to light – and the European Parliament had no clue what was happening.

The Commission has worked on their techniques since then. Now, when everyone is in lockdown, they are continuing adopting regulatory decisions – some of which are important – and putting them out to public consultations, as if nothing else is happening outside.

They must know that many governments are too focused on the crisis. Asking governments now for their feedback seems brutal.

I know the new Commission leadership is new, but you’d think there was some re-prioritisation going on during the crisis. And, if there is, that memo has not been distributed down to Heads of Unit and officials.

How to keep the secondary legislation coming out

Even during a crisis, the machinery of European government can still continue, more or less unaffected.

The written procedure means the Commission,  Member State Committees and Agencies can continue their work. They can, adopt decisions as if nothing is happening.

The great advantage of written procedure is that you don’t even need to meet to decide on a proposal. The whole apparatus of government is designed to use the written procedure for  unexceptional matters. Now, it is being deployed to make sure important, sensitive and the mundane matters keep getting tabled and adopted.

Technology allows meetings to be remote. The real benefit of face to face meetings is the side chat and alliance building at the edge of the meeting.  This applies for Member State committee meetings, regulatory committees,  agency deliberations, or GRI meetings.

It must be hard for Commission officials to even deeply review the flow of decisions being put in front of them by the agencies. It must be harder for Commission officials and Cabinet staff to scrutinise the flow of initiatives from their colleagues to see if it is ‘sensitive’. During a crisis, only a few vital things get to looked at.

Most agency decisions or secondary legislation finds it hard to get scrutinised in the Commission on a quiet day. Today, they are just waived through.

 

How to scrutinise delegated and implementing acts

The European Parliament’s Environment Committee is the most active of the Parliament’s Committee in scrutinising the secondary legislative proposals the Commission push out the door.

During the coordinators meeting of 25 March 2020 they discussed the issue.

Scrutiny of delegated and implementing acts

“Coordinators decided to mandate the Chair to send a letter to Commissioner Kyriakides, pointing out the current difficulties for the Parliament to exercise its scrutiny rights under the current circumstances and asking the Commission to suspend or re-submit the draft RPS measures for which objections have been initiated as no plenary session would take place to adopt possible objections before the scrutiny deadline expires.

In the meantime, coordinators endorsed a timetable which would allow the ENVI Committee to vote on the current objections at a possible upcoming committee meeting in April, in spite of the fact that there is no plenary foreseen to adopt any possible objection by Parliament before the scrutiny deadlines expire in May.”

 

A Solution?

You’d think that during a crisis all non-essential and on-going regulatory procedures would be put on hold for the duration of the crisis. You’d be wrong.

Unless the leadership of the Commission call for a delay –  for a month or two during the crisis – a lot of decisions are going to be adopted with little to no scrutiny.

During the summer and Christmas break, the Commission take their foot off the accelerator. During the European elections, they wait for the new Parliament to return. The world will not end if a month or two of proposals lay in wait. The same for agencies. It is hard to think if an extra two months is given during the crisis that regulatory machinery will fall apart. An enforced fully paid sabbatical for two months would be useful. When things are back to normal, and experts can travel again, deliberations can return.

If the best recipe for poor decisions is ensuring little to no scrutiny and oversight, we are going to have to clean up a lot of shit in the months to come.