Some politicians and journalists seem to be surprised about some of the contents of EU laws that they adopted in the last few years.
Here are some radically practical ideas to stop poor laws being tabled.
- A good proposal takes time to gestate. As a rule of thumb, my guesstimate is around 18 months. This allows the Services to find built a strong case and to rip apart a poor proposal. This needs to return.
- The Sec-Gen used to be given free rein to issue negative opinions to poorly thought out proposals. We need to return to effective oversight of the Services and over ambitious Commissioners by the Secretariat-General, given full support by then President Barosso, and ably applied by the Secretary-General, Catherine Day. Then poorly thought out proposals were weeded out early on.
- The Services need to be given the opportunity to issue negative opinions without the political sign off their Cabinet.
- Under a more ‘political Commission’, introduced by Juncker, and taken forward since then, the Cabinets were handed oversight. Having seen some of their ‘efforts’ of drafting proposals, it is a wonder we don’t have more poor legal texts.
- It would be important to have a Vice-President whose sole job was to validate every initiative from the Decide entry stage onwards at every step for compliance, in letter and spirit, with the Better Regulation guidelines. This Commissioner’s Cabinet should be staffed with zealots of good governance, who enjoy nothing more than spending their Friday evening, reviewing the intellectual integrity of any and all initiatives – including secondary legislation. Their validation on each step must be required. President Juncker required such a sign off procedure for each stage for eco-design measures.
- The Commission regularly discuss drafts of proposals with Member States in Committees and Expert Groups. They should go two steps forward. They should publish the draft proposal and the Impact Assessment before the Inter-Service Consultation starts. The Member States should do some serious double checking that they have the national resources to implement the legislation on the ground and report back. The poor implementation rates in many Member States would suggest that the apparatus for compliance on the ground is lacking or non-existent in many Member States. There seems little point passing laws if we know that many countries will drag their feet on real implementation.
- Member States should be required to tick off that they have genuinely discussed the draft proposal back home and make public their assessment on their ability to implement the proposal. This will be a useful check on countries who vote for proposals with no intention of implementing them.
- The draft proposal and impact assessment should be thrown open to the public before the proposal is launched for inter-service consultation. This will allow the public to double check that the proposal and the evidence being used to support the proposal is not full of some hidden major errors, or that ‘a sensitive’ proposal is being smuggled through the College in sheep’s clothing. At the moment the consultation on the impact assessment and proposal happens after the proposal is made. By which time the damage is done.
- When the public make submissions the evidence should be robust and the solutions to a given public policy problem realistic. Conspiracy cranks and climate change deniers should be ignored.
- Finally, and perhaps most importantly, the desire by certain Commissioners for the Services to conjure up proposals in the space of a few months should end. The manic urgency for new laws is the root cause of many of the problems that have identified.
If the Commission applied such a checklist that many proposals would be stopped. It will lead to a few proposals being culled early on. But, it would lead to better thought out proposals. And, it would allow any grievances to be aired early on, before the proposal was made. My guesstimate is this would lead to 2% of proposals being dropped early on.
The major upside is that any interest can early on call out a proposal before it is adopted. And, as the Commission tends to get what it wants through the legislative process, this means a lot. And, if concerns are robust enough, this will lead to proposals being changed before they get published. This has happened in the past. A draft delegated act on mobile phone roaming charges got pulled after the public highlighted in the pre-adoption consultation that the proposal ignored the enabling law.
Any one of the suggestions would improve things, and all 10 could be adopted tomorrow, and make news headlines on poor EU law making end overnight.