Domestic Adaptation: The Creation of EU-Related Oversight Institutions

The main domain in which some, albeit not all, national parliaments have obtained new rights and competences is at the national level. Many parliaments now have significant rights and capacities for the domestic oversight of their governments' conduct in EU policy-making. A significant literature on these EU-related 'oversight institutions' exists, which provides three important pieces of information. First, there is relatively broad agreement on the sets of oversight institutions parliaments use to tackle information deficits and authority losses in EU affairs (e.g. Raunio 2005; Bergman 1997, 2000; Pahre 1997; Norton 1995). Second, there is a large literature with country case studies that describe the approaches of various parliaments (e.g. Norton 1996a; Smith 1996; Maurer and Wessels 2001; Tans etal. 2007; O'Brennan and Raunio 2007; Holzhacker and Albaek 2007; Barrett 2008b; Kiiver 2006). Third, there are a number of systematic comparisons, focusing on around 2000 and 2010, that show cross-national diversity in parliaments' pursuit of the strategy of domestic oversight (Raunio 2005; Bergman 1997, 2000; Saalfeld 2005; Karlas 2012). Relying on these pieces of information, Winzen (2012, 2013) presents a systematic mapping of the patterns of parliamentary adaptation. The following explains and reproduces the most important information from this mapping exercise.

Oversight institutions are all parliamentary rights and capacities designed to enhance parliamentary control of governments in EU affairs. They target different facets of the challenges that integration poses to national parliaments. One should note again at this point that addressing these challenges need not necessarily be of equal interest to all parties within parliament.

Table 2.3 National parliamentary oversight institutions

Oversight institutions

Weak

Medium

Strong

Focus: Information

Access to documents

Incomplete

Legislative

proposals

Legislative and planning documents

Government memorandum

No

-

Yes

EU committee

No

Sub-committee

Standing committee

Sectoral committees

No

Irregular/on request

Obligatory

Focus: Constraining government

Scrutiny reserve

No

-

Yes

Mandating

No

Justified deviation

Binding

Source: Winzen (2012, 2013).

Chapter 3 will engage with the question of who wants to strengthen EU-related parliamentary rights and why. Consider first, however, what rights parliaments have actually established.

To begin with, as a result of the distance of the EU level, existing parliamentary means to monitor government behaviour at the European level come under pressure. Moreover, as decision-making migrates to the EU level, parliaments confront the possibility that governments can ignore them when acting in the Council of Ministers. In response, domestic policy-makers may decide to create rules and instruments, oversight institutions, to enhance parliamentary rights. First, they may increase parliamentary access to and ability to process information on EU affairs. Second, they may take measures that constrain governments' ability to bypass national parliaments in EU decision-making. To be sure, oversight institutions do not bring back lost legislative sovereignty but they help interested parliamentary actors to control governmental goals and strategies at the European level (e.g. Bergman 2000).

Table 2.3 shows what oversight institutions parliaments employ, sorted into those that focus on information deficits and those that focus on constraining the government. Most basically, parliaments have to have access to EU legislative proposals and, preferably, also legislative planning documents such as Green and White Papers. If parliaments automatically receive those documents from governments, they have a chance to follow what the Council negotiates. Parliaments that do not automatically obtain these documents are vulnerable to selective information from the government. Nevertheless, mere access to documents has weaknesses (Pollak and Slominski 2003; Raunio 2008; Raunio and Wiberg 2008; Hegeland and Neuhold 2002). First, parliaments struggle to sift efficiently through large numbers of documents the EU produces, many of which are not of particular political importance. Second, the documents as such do not ensure parliamentary information on what the government intends to do at the EU level. Consequently, it is more important that parliaments also receive explanatory government memoranda that summarize the content and implications of an EU initiative and the government's approach to negotiations (Raunio 2008; Raunio and Wiberg 2008). An explanatory memorandum may be a single document or, as for instance in Denmark, come in different documents and formats as more information becomes available.

Furthermore, parliaments may improve their information on EU decisionmaking through the involvement of standing committees. First, they may create a European Affairs committee to monitor EU affairs, process and distribute information in parliament, hold hearings, and discuss with the government. In its strongest manifestation, the EU committee exists on an equal footing with other committees such as, for example, Foreign Affairs or Environment. Yet, it may also come in weaker forms as a temporary committee or a sub-committee of another specialized committee (typically Foreign Affairs). Such a lower status often goes together with fewer administrative resources, lower prestige in parliament, smaller membership, and constraints on rights (such as entitlements to propose resolutions to the plenary). Second, parliaments may also decide that sectoral standing committees should participate in overseeing EU decision-making, a well-known example for this practice being the Finish parliament (Raunio 2007). Since EU affairs are partly about the evolution of integration and partly about policy substance, parliamentary oversight can benefit significantly from the policy expertise of sectoral committees. Sectoral committees may be obliged to examine EU documents to ensure that national concerns do not crowd out their treatment. Parliamentary rules may also merely encourage sectoral committees to deal with EU documents on request of the European Affairs committee or on delivery of the relevant documents. For instance, Section 58(3)(d) of the Slovakian parliament's rules of procedure state that the European Affairs committee has 'the option to request other committees of the National Council to submit their suggested opinions'. Parliaments may also decide that sectoral committees do not carry responsibility for EU affairs or simply not take any view on their role.

In order to avoid governments ignoring parliaments in EU decision-making, domestic policy-makers could decide to create a so-called scrutiny reserve and mandating rights. A scrutiny reserve is a rule that delays governmental commitments at the European level until the parliament completes the examination of an issue. For instance, the 'scrutiny reserve resolution' (version 17 June 1998) of the House of Commons states: [1]

  • (a) which is still subject to scrutiny (that is, on which the European Scrutiny Committee has not completed its scrutiny) or
  • (b) which is awaiting consideration by the House (that is, which has been recommended by the European Scrutiny Committee for consideration pursuant to Standing Order No. 119 (European Standing Committees) but in respect of which the House has not come to a Resolution).

Mandating rights come in different degrees of 'bindingness' (Bergman 1997). While all parliaments can issue a statement on what a government should be doing at the EU level, in some places governments are formally obliged to deliver a justification if they fail to adhere to such a statement. Moreover, in some places parliamentary statements, or 'mandates', are formally binding. For instance, Article 23e(2) of the Austrian Federal Constitutional Law states:

Is the competent member of the Federal Government in possession of an opinion by the National Council about a project within the framework of the European Union [... ], then the member is bound by this opinion during European Union negotiations and voting. Deviation is only admissible for imperative foreign and integrative policy reasons.

The following draws on the categories of Table 2.3 to map each member state parliament's adaptation to European integration. For each parliament I categorized codified rules contained in formal documents such as constitutions, legislation, and rules of procedure. I also take into account highly institutionalized practices if many sources agree that these practices bind parliament and government, especially if official but non-binding documents such as ministerial memorandums express commitment to such practices. Where available, and subject to language constraints, I obtained information directly from the above sources of codified rules. Otherwise, information came from the rich descriptive literature, COSAC reports, and various other sources.[2]

The following does not analyse each oversight institution separately but draws on three aggregate measures summarized in Table 2.4. One measure focuses on the strength of parliamentary information rights, one on the strength of constraining oversight institutions, and one on the overall strength of a parliament's system of oversight. Doing so focuses attention on how parliaments deal with the challenges of European integration in general and, particularly, with their information deficits and authority losses. While we can draw a line between institutions that prioritize information or constraints on government, the different instruments within these two categories serve equivalent purposes. By implication, this analysis does not address the question of which oversight institution a parliament chooses once it agrees on

Table 2.4 Measures of the strength of oversight institutions

Measures

Aggregation procedure

Range

Information

(Access to documents/2) + Government Memorandum + EU Committee + Sectoral Committees

0-3.5

Constraints

Scrutiny reserve + Mandating

0-2

Overall strength

(Information/3.5) + (Constraints/2)

0-2

Source: Based on Winzen (2013).

the need to improve its access to information or governmental constraints. This choice might be the result of an incremental process in which parliaments add further instruments to what they already have whenever they deem better information or constraints necessary (on the incremental evolution of oversight, see Dimitrakopoulos 2001; Raunio 1999).

Second, aggregation of the different oversight institutions is not straightforward because they are measured on ordinal scales. I make several assumptions. If fully developed, the instruments in each dimension are of equal importance with the exception of access to documents in the information dimension. For instance, it is equally important for parliament to have a standing European Affairs committee and an explanatory memorandum. The descriptive and qualitative literature does not provide a justification to think that any of the instruments are either more or less important. Some point to the creation of European Affairs committees (Norton 1995; Martin 2000; Raunio and Hix 2000); others to information access and sectoral committees (Raunio 2005, 2008). Similarly, the scrutiny reserve procedure has been praised as well as the mandating procedure. For instance, Torbjorn Bergman (1997) regards both as a sign of the 'bindingness' of parliamentary oversight. By exception, there is broad agreement that mere access to documents is less important than the other information acquisition instruments (e.g. Raunio 2008; Pollak and Slominski 2003). Against this background, no instrument except document access can plausibly be treated as less important than the others. I also suggest that we can regard the 'medium' rank as equally far away from the 'strong' and 'weak' ranks.

On this basis, I proceed to generate the first two of the three measures to be used in this study: one each for the strength of oversight institutions focusing on information and on constraining government. For each dimension, I count the number of fully developed oversight institutions and add 0.5 for each partially developed one. Access to documents has half of the weight of the other institutions in the information dimension (a measure without access to documents correlates above r = 0.95 with the measure discussed here). This procedure gives us two measures of the number of available oversight institutions. One focuses on information and one on institutions constraining the government.

In order to generate a measure of the overall strength of oversight institutions, I first divide the two other measures by their maximum value. For instance, I take the above measure of the number of fully developed constraining institutions. This measure has a maximum of two (scrutiny reserve and mandating). I divide the observed number of institutions for each parliament by two. I proceed similarly with the information dimension, taking into account the lower weight of access to documents. Essentially, this procedure generates two standardized measures of oversight institutions. I sum up the two measures resulting in a variable with the theoretical maximum of two (fully developed information institutions plus fully developed constraining institutions). The underlying assumption is that both types of institutions are equally important for the overall strength of oversight. While some studies make a case for the importance of constraining institutions (Bergman 1997; Pahre 1997), others have stressed information (Raunio 2005, 2008). Again, the literature does not justify treating either dimension as more important. The measure tells us how close a parliament gets to a fully developed system of oversight institutions. The measure yields similar results than measures used elsewhere based on the same and different data sources (for alternatives, see e.g. Winzen 2012).

It should, finally, be highlighted that it is possible to justify the selection of oversight institutions considered here deductively. They correspond to and address challenges that European integration creates for parliamentary competences, as discussed in the literature on the EU's democratic deficit. At the same time, the measures are necessarily inductive in the sense that, first, actually observed parliamentary institutions define the set of EU-related adaptation options investigated here. Second, the actually observed institutions also determine the maximum value of the scale of oversight presented in the figures so far. There is no suitable alternative to this partly inductive approach. While it is certainly possible to imagine more or different kinds of relevant EU-related institutional reforms parliaments could benefit from, there would be no added value in adding these categories to the data. No parliament would have these rights and, therefore, there would be no change in our ability to distinguish different parliaments. One should bear in mind, however, that the approach here implies that the 'maximum' level of the scale is an empirically informed maximum derived from the parliamentary adaptation efforts that have taken place until today.

  • [1] No Minister of the Crown should give agreement in the Council or in the European Council to any proposal for European Community legislation or for a common strategy, joint action or common position under Title V or a commonposition, framework decision, decision or convention under Title VI of the Treatyon European Union (Maastricht Treaty) -
  • [2] 2 The dataset is complete except for data for Romania, which is missing until the year 2010.
 
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