Parliamentary Government or Division of Powers: Is the Destination Still Unknown?
Parliamentary Government or Division of Powers: Is the Destination Still Unknown?
Abstract and Keywords
The increasing power of the European Parliament has been one of the most steady and striking developments of Europe’s past several decades. Most analyses of the EP tend to see this process as moving the EU somewhat toward a model of parliamentary government, converging on the institutions prevalent in most European countries. But in fact, the EP now plays a role much more like an autonomous separation-of-powers legislature on the US model, and its future development is likely to move further in this direction.
On October 27, 2004 Commission President Barroso was obliged to tell the plenary of the European Parliament (EP) in Strasbourg that he needed more time before presenting his new Commissioners for approval. He recognized that as a result of the hearings held in the Parliament earlier in the month, his team was unlikely to win the vote of approval required by the treaties. Even if it did, the vote in favor would be too narrow for him to launch its work successfully. Within ten days he presented a reshuffled Commission, with the original Italian and Latvian nominees replaced and the Hungarian candidate given a new portfolio. The Parliament gave its approval to the new team by a large majority on November 18.
These events were widely interpreted as marking a turning point in the life of the European Union (EU). Josep Borrell, President of the Parliament, argued that the parliamentary hearings had ‘breathed life into our Europe which is more often than not seen as a monolithic bureaucracy, remote from everyday people and excessively consensual.’2 Others, including the leader of the British Conservative Party, Michael Howard, argued that it was a dangerous precedent for the nominees of sovereign governments to be overturned by a Parliament for which less than 50 percent of the European electorate had turned out to vote at the elections held in June 2004.
The struggle over the composition of the Commission thus brought to the fore the issue of the democratic character of the European Union (EU). No one wished to claim that the European project could be advanced by stealth by the political elites far from the gaze of the electorate; all were obliged to confront and debate the character of the Parliament's contribution to the democratization of the Union. Did the enforced change in the composition of (p.124) the Commission, something not provided for in the treaties, inject a much‐needed dose of parliamentarism into the EU? Or did it reflect a dysfunction in the workings of the EU, an ongoing crisis in the institutional structure? The simple fact that such questions were posed underlined the contested nature of democracy in the Union.
This chapter takes as its starting point that the argument over the composition of the Commission has to be understood in the context of the kind of institution the EP is becoming. It will suggest there are two different kinds of parliamentary role that the Parliament has pursued throughout its history and particularly since it was directly elected for the first time in 1979. On the one hand, the Parliament has sought to reinforce its control over the Commission, with a view to making this executive body responsible to a parliamentary majority; on the other, it has pressed to improve its position in the legislative procedure, aiming to achieve a greater degree of parity with the Council of Ministers. The desire to make the Commission accountable to a parliamentary majority derives directly from the European tradition where legislatures are the ultimate arbiters of the fate of executives, where there is a fusion of powers between these two branches of government. By contrast, the search to strengthen the EP as a legislature is based on a different logic, one much more akin to the US idea of a separation of powers.
The changes made to the Barroso Commission in the autumn of 2004 might appear to suggest that it is the first of these roles that is assuming greater importance. However, such a claim runs counter to the institutional legacy of the last twenty‐five years. The kind of powers the Parliament has acquired, combined with the way in which the EU is structured, make the Parliament much more likely to develop into an institution comparable to the House of Representatives in the USA than it is to become like a national parliament on the European model. Moreover, there are good reasons for believing it will not become a hybrid body fulfilling both roles. If this is right, we could also expect the Parliament to have the potential to become a source of distinct policy positions from those pursued by the executive, whether in the Commission, the Council of Ministers or the European Council.
In other words, the EU is at one and the same time creating a type of parliamentary institution that converges on a pattern familiar to US observers as well as one that could be the source of policy options that conflict with US preferences, precisely because it enjoys autonomy and remains separate from the other sources of power in the EU system. Polity convergence is combining with the potential for policy divergence in a way that makes the institution of more than academic interest for the US observer.
To present this argument, the chapter will first recall the growth in the powers of the Parliament, noting that the development of its legislative role has been matched by a growing say over executive appointment. The second (p.125) section will consider the obstacles to the establishment of a full parliamentary regime, with a government dependent on retaining a majority in the Parliament. The third section will suggest why it is easier to envisage the reinforcement of the independence of the Parliament as a legislature, with its members not required to support the party line of the executive. The fourth section will point to the difficulty of imagining a hybrid regime where the Parliament plays both roles. Finally, some comments will be offered on the impact that the emergence of such a Parliament may have on transatlantic relations.
1. Acquiring a Wider Armoury of Powers
The powers that the Parliament exercises today are the product of decisions taken throughout the history of the EU. There was no obligation to create a parliamentary assembly at European level: such an assembly already existed within the framework of the Council of Europe. Nor was it necessary to envisage that its rights could evolve over time. Yet already in 1958 the Rome Treaty included the provision that the Parliament might be directly elected, rather than composed of national parliamentarians, even though its powers were limited to consultation on most legislation and the right to censure the Commission.
The expansion of the Parliament's powers is also unique. No other Union institution has seen its initial prerogatives so completely transformed over time. Member states have been willing to agree to significant improvements in the Parliament's position virtually every time that the Treaties were revised from 1958 onwards. At least part of the explanation should be sought in the existence and strength of the democratic idea, the belief in government deriving its legitimacy from the people, and the reluctance of any national government to be seen overtly to resist its development at European level (Costa and Magnette 2003). Hence we should not be surprised, for example, that governments found it hard to resist indefinitely the implementation of the provision in the Rome Treaty for the holding of direct elections at some future date.
Within the institution the initial lack of powers constituted an agenda for reform that has consistently guided it over the subsequent half century as MEPs sought determinedly to escape the accusation that they were part of a ‘talking shop,’ with no effective influence on the shape of European policies. This pressure to alter the status quo established in 1958 grew particularly strong after the first direct elections that the member states eventually agreed should take place in 1979.3 A new breed of full‐time members came to the (p.126) Parliament, committed to altering the institution's weak position in relation to the Commission and the Council. The first fruits of their efforts came with the Single European Act (SEA) in 1987. The commitment of the member states to the establishment of a single market and their willingness to contemplate a broader use of qualified majority voting led the way to a change in the way in which laws were to be agreed at European level. The SEA introduced two readings for a limited range of legislative acts and made it possible for the Parliament to have its amendments adopted, provided they obtained the support of the Commission and unless the Council could find unanimity to reject them (Corbett et al. 2003: 182–3).
However, it was the Maastricht and Amsterdam treaties that brought about the most significant changes in the position of the Parliament, changes that have to be seen in the context of the wider debate that emerged in the early 1990s about the idea of a ‘democratic deficit’ at the European level. The difficulties in ratifying the Maastricht Treaty, with Denmark first voting no and then yes and France only approving the text by a very small margin, prompted a major debate about whether the legitimation of the EU by indirect means was sufficient. Nearly all protagonists agreed that it was not and that the democratic idea needed to find fuller expression in the structures of the EU than it had done hitherto. Much less accord existed on what was needed to ‘solve’ the problem. There was, for example, a major surge of interest in the development of the role of national parliaments, with some arguing for an alliance of all parliaments, European and national, against executives, others calling for a new parliamentary chamber of national parliamentarians and all seeming to agree that a modification of the existing pattern of relations could help to reduce the gap between the institutions and the European citizen.
Nevertheless, the most significant changes were those that reinforced the Parliament's role, suggesting that member states felt unable to offer a better alternative to overcoming the ‘democratic deficit.’ The Maastricht Treaty that entered into force in November 1993 complemented the existing consultation and cooperation procedures for legislation with a new procedure, known as co‐decision. Under this procedure, if the Council cannot accept the amendments proposed by the Parliament at its second reading, a Conciliation Committee, with an equal number of members from each institution, is convened with a view to reconciling their differences within a maximum period of eight weeks.4 This legislative reinforcement of the position of the (p.127) Parliament was matched by a provision whereby governments agreed to consult the EP before nominating by common accord the President of the Commission, thereby giving the Parliament a say in the formation of the Commission and not simply in its dismissal. They also synchronized the Commission's term of office with that of the Parliament, so that now the appointment of a new Commission President and of the whole new Commission coincides with the arrival of a new Parliament.
In addition, the Parliament was accorded the right under the Treaties to set up committees of inquiry to examine ‘alleged contraventions or maladministration in the implementation of Community law.’ The detailed rules governing these committees do not give the Parliament a general power of summons but do provide a mechanism for it to invite national as well as Community officials to appear before it, thereby increasing its potential influence over executive decisions beyond the Brussels world (Shackleton 1998).
Further changes took place under the Amsterdam Treaty (signed in 1997 and ratified in 1999) that served to strengthen the Parliament's role. As far as executive appointment is concerned, it was agreed that the nomination of the governments of the member states for President of the Commission has to be approved by the Parliament. In other words, the President of the Commission needs the support of a parliamentary majority, in accordance with the classic tenets of parliamentary government in Europe. At the same time, the co‐decision procedure was substantially extended from fifteen to thirty‐eight areas covered by the Treaty and was also made to reflect more clearly the principle of parity between Council and Parliament. Agreement on legislation can now be reached in first reading on the basis of the Parliament's position without the Council having formally to adopt a common position. Once in conciliation, failure to reach agreement within the eight weeks provided for definitively ends the legislative procedure: the Council is no longer able to retable its own position to the Parliament for consideration as a potential solution.
Once again the question has to be asked: why were governments willing to grant such a major increase in powers to a majoritarian body that was not under their control? Simon Hix has argued convincingly that contrary to governmental expectations, the Parliament exercised important discretion in interpreting the provisions of the Maastricht Treaty, that these interpretations became de facto rules, and that in the Amsterdam Intergovernmental Conference (IGC) governments decided to incorporate these rules into the Treaty because they did not see them as fundamentally altering the balance of power between the institutions (Hix 2002). However, perhaps even more important is his conclusion that the changes represent major advances for parliamentary government that cannot be reversed. ‘Once democracy is (p.128) established, there is no going back within the bounds of the existing constitutional norms’ (Hix 2002: 280). We have a Parliament with a major role in the EU, a role that the European Constitution serves to anchor even more firmly into the decision‐making system.
The question now is what kind of future can be envisaged for the institution. So much time and energy has been expended on the search for new powers that the existence of alternative models for the future has been largely overlooked. And yet it is clear from the range of powers that have been acquired that there are essentially two possible directions. The first would involve creating a parliamentary system with a fusion of executive and legislative power, with both deriving their authority from the same set of elections and the executive resigning in the event of its losing majority support in the legislature. This is the vision that coincides with the model that Europeans tend to have in their minds when they think of a Parliament. The second supposes a clear separation of powers with holders of executive power elected separately from the legislature and not forming part of the legislative body. Such a view is much less familiar in Europe and reflects more obviously the federal arrangements of the USA.
2. Towards a Parliamentary Regime?
The accumulation of powers described in the last section can be regarded as the equivalent at Union level of the development of the kind of parliamentarism that is found in European nation states. From this perspective, MEPs have fought to strengthen their position against an overpowerful executive and are slowly succeeding in asserting their position as part of the move towards a more democratic structure in the EU. Certainly this is the kind of imagery that is used in parliamentary debate and that has served as an important driving force in the pressure for change. As Hix has suggested, the standard version of the ‘democratic deficit’ thesis posits that the ‘EU will only be democratic if European elections are fought by cohesive Euro‐parties which present rival agendas for EU policy action, the winning parties form the executive and the parties act cohesively to ensure that their officeholders implement their electoral programme’ (Hix 1998: 20).
Are the structures and processes of the Community such as to enable the democratic deficit to be filled in this way? There are good reasons for believing that a development of this kind remains relatively unlikely. The powers of dismissal and appointment that the Parliament have acquired as well as the overall role of the Commission as an executive body are all exercised in such a way as to militate against the recreation at European level of the classical parliamentary model seen in the member states.
(p.129) At first sight, the power of dismissal of the Commission—the earliest power that the Parliament acquired—looks like the mechanism by which the confidence of an executive can be tested to see if it still enjoys broad political backing. In fact, as Simon Hix has pointed out, the right of censure is ‘more similar to the power of the US Congress to impeach the US President than to the power of a parliamentary majority to withdraw the support of the government’ (Hix 1998: 25–6). This was confirmed in 1999 by the circumstances under which the Commission resigned in anticipation of a vote of censure by the Parliament. It did so not because of differences over policy direction, but rather as a result of charges of incompetence and maladministration.
Moreover the rules of decision‐making in the EU make it most unlikely that this will change in the future. A motion of censure requires a two‐thirds majority of the votes cast, representing a majority of the members of the Parliament. Such a high hurdle effectively excludes a move by one of the major parties in the EP to employ a political sanction against the Commission. There has to be a broad consensus, which is itself unlikely to be forthcoming on a question of policy, above all when it is overlaid with national differences. Indeed it is one reason for remaining a little sceptical about whether the Parliament would have had a sufficient majority in 1999 to censure the Commission if the latter had not decided to anticipate such a vote and resign.
Similar obstacles make it difficult to see how a party logic can apply to the appointment of the Commission President. At first sight, the arrangements foreseen under the Constitution offer a clear way of linking the political process of the European elections much more directly with the selection of the Commission President. Two former MEPs have pointed to the way in which they thought the system could be adapted to remedy its present top‐down character and to instil more life into European elections. ‘If each European political family were to declare its candidate for President of the European Commission in time for the next European elections, that could inject new life and vigor into the electoral process and strengthen the identity and cohesiveness of political groups’ (Clegg and van Hulten 2003: 26). Voting in European elections could then be seen as having direct consequences at European level rather than serving essentially as a comment on national political life.
However, such an arrangement faces formidable obstacles before it could become a reality. In the first place, it assumes that the national political party structures would be willing to accept such nominations. There would be likely to be strong resistance to such a move that could only serve to weaken the position of national structures at the expense of the European party groups. In a EU where the member states enjoy so strong a role in determining (p.130) the structure of the system, such a change would run very much against the grain. Furthermore, the proposal overlooks the inevitable tension between candidates nominated by European party groups and candidates proposed by the European Council. The system, even in the form proposed in the Constitution, does not reduce the European Council to a body that simply registers decisions made elsewhere. It retains the right to make its own decision, even if it has to take account of the election results and to consult with the Parliament.
The Parliament has the formal right to turn down any candidate proposed by the European Council but the question is whether it would be willing to do so. In 2004 the EPP‐ED, representing the center‐right in the Parliament, argued that their success in the European elections should be reflected in the choice of Commission President. The eventual choice of Mr Barroso, whose party is in the EPP, was as much influenced by the fact that the majority of the twenty‐five governments were of the center‐right as by any threat of the Parliament to withhold its support from a candidate of another party. In fact, on the only occasion where a large fraction of the Parliament was unhappy with the candidate proposed (Santer in 1994), pressure exercised by national governments on their MEPs succeeded in ensuring that the choice of the European Council was confirmed. European party groups can display a considerable level of cohesion on legislative issues but such cohesion is much less easy to assure when the exercise of executive authority is at stake. Even a negative vote would not enable the Parliament to impose its choice on European governments.
A further contrast with the European parliamentary model can be found in the texture of the general relationship that exists between Parliament and Commission. The struggle that surrounded the resignation of the Santer Commission in 1999 and the often difficult relations between the two institutions in the intervening years have obscured the fact that there is an ongoing tradition of seeing the Commission as the ally of the Parliament in its struggles with the Council. The Parliament has continued to want the Commission to commit itself to the Parliament's side in an institutional rather than a political sense, a position reciprocated by the Commission.
At the same time, the Commission has maintained that it is a nonpartisan body, a view that the Parliament has not wanted to contradict. This somewhat apolitical approach has been reinforced by the way in which prospective members of the Commission have been cross‐examined in the hearings organized by the Parliament. These hearings have normally been rather technical in character, with the members of individual parliamentary committees seeking to establish the general suitability of each candidate for specific, sectoral portfolios rather than examining their political position.
(p.131) The argument over the nomination of Rocco Buttiglione, the initial Italian candidate for the Barroso Commission, might appear to contradict this argument as it pitted the center‐left against the center‐right in the Parliament in a fierce struggle, easily understandable to the general public. Nevertheless, the decision of the Civil Liberties Committee to reject Mr Buttiglione was primarily determined by a judgement as to his suitability for a particular post rather than an evaluation of his political affiliation. A majority felt that given his views on homosexuality and the family, he was not suitable to be Commissioner responsible for Justice and Home Affairs; for any other post he would almost certainly have met with minimal objections.
The Parliament has also wanted to maintain the Commission as a separate institution, enjoying autonomy in its relations with the other institutions rather than becoming a subordinate body. Very few members of the Parliament have supported the idea that the Commission should lose its monopoly of the right of legislative initiative. Traditionally parliaments in Europe do enjoy a right of initiative but in the European context, the EP has accepted the more limited provisions of Article 192, which enable it to invite the Commission to produce a legislative proposal. To go further would be to open up the possibility that member states would also argue for such a right of initiative, complementing what they already have in the Justice and Home Affairs arena. In fact, the Convention accepted the traditional Parliament position and the Constitution states in Article I–26 that ‘Union legislative acts may be adopted only on the basis of a Commission proposal, except where the Constitution provides otherwise.’
Similarly, the Parliament wanted to uphold other roles for the Commission that are not compatible with the role of a traditional executive. In the conciliation procedure provided for under Article 251 of the existing Treaty, the Commission is given the task of mediating between Council and Parliament with a view to facilitating an agreement. It is a task the Commission assumes very seriously and one that it is reminded of if it tends to favor one or other of the legislative bodies too overtly. Such a task would be very difficult if the Commission reflected the political majority of the Parliament: it could not be easily accepted as evenhanded in the negotiations. Council could claim that the Commission would necessarily favor the concerns of the majority in the Parliament where its support came from.
Such practices have made it very difficult for the kind of political legitimation of an executive seen in a national European context to emerge. A potentially tighter link with the Commission has also to be set against the significant changes being proposed in the Constitution for the European Council with the creation of a post of President. Whatever her or his mandate, whatever the relationship with the Commission President, this post reinforces the split in executive functions between European institutions (p.132) and makes it even more difficult to imagine the creation of the traditional mechanisms of parliamentary control and accountability. Parliament could only hope to have a very partial control over the executive at European level.
Magnette has argued that ‘The Commission is not subordinate to a parliamentary majority that can sanction it, but rather scrutinized by MEPs who can only try to influence it. The pyramidal and hierarchic structure of the parliamentary state is replaced, here, by horizontal relations of mutual control’ (Magnette 2001: 308). In fact, these horizontal relations extend further to the Council, thereby making it still more difficult to envisage the emergence of a classic parliamentary regime with a government enjoying the backing of a majority. Rather we can see something that reflects a continuing separation of powers.
3. Towards the Parliament as a Legislature?
What we are witnessing is the slow emergence of a bicameral legislature, where the Parliament serves as one branch of the legislative authority, representing the peoples of Europe, with the Council operating as the other branch, representing the member states. In particular, the arrival of co‐decision in 1993 and its considerable extension in 1999 completely transformed the position of the Parliament. As we have seen, again, this was an institution that had no legislative role under the initial ECSC Treaty and only consultative rights during the first thirty years of the Rome Treaty.
The notion of a bicameral legislature is much contested outside Parliament and inside academia. It is obvious that the Council exercises tasks other than that of a legislature—hence the impossibility of agreeing on a legislative formation of the Council in the Convention and the IGC that followed it. And yet the very special character of the Council cannot conceal the nature of the political process that is emerging as a result of the changes in the legislative powers acquired by the Parliament over the last fifteen years. It is not simply that the Parliament exercises more influence than it did before it acquired greater legislative prerogatives. There is every reason to accept the suggestion that the EP is a parliament with strong policymaking power (Judge and Earnshaw 2003). More important from the perspective of this chapter is the fact that the Parliament (and indeed the Council) now behaves very differently.
First, the Parliament has become a ‘bargaining’ body that negotiates with other institutions—above all the Council—in the search for agreed solutions. Such a development was not predetermined. The power of co‐decision did not necessarily entail detailed face‐to‐face negotiations. The Vedel report (Vedel 1972), a document prepared by a group of experts at the request of the (p.133) Commission to consider the powers of the EP, speaks of co‐decision but never imagined a Parliament amending texts in the way it does now. Rather it supposed the institution would say ‘Yes’ or ‘No’ to a text devised by the Council, somewhat in the way that Parliament now exercises a power of assent over, for example, prospective new members of the EU. Such a power gives some room for negotiation but the scope is much less than when specific amendments are the subject of a compulsory interinstitutional debate.
The formal provisions providing for face‐to‐face deliberations between two institutions that had rarely had very much to do with each other in the previous forty years have played a vital role in creating a new legislative culture (Shackleton & Raunio 2003). Parliament and Council have been willing to act together to develop informal mechanisms to find solutions. Most famously, the two institutions recognized that negotiations could not be successfully conducted in Conciliation Committees attended by over 100 people and agreed to institute smaller meetings, known as trialogues, where only twenty to twenty‐five people are present. These smaller meetings have played an essential part in developing trust between the two institutions and enabling the most intractable of differences to be addressed and solved in a way that both parties could accept, without feeling that they have had to surrender (Shackleton 2000).
In addition, there has been dramatic growth in the search for agreements in advance of second reading with a view to avoid conciliation. This has been particularly evident since Amsterdam, which opened up the way for agreements on legislation to be reached without the Council having to come to a common position. The result has been the growth of contacts between all three institutions at every level, with rapporteurs, committee chairs and officials drawn into a thick network of relations on virtually every one of the co‐decision files under discussion (which averaged eighty per year between 1999 and 2004). We are witnessing the closure of nearly 80 percent of co‐decision files without conciliation and often on issues of considerable political salience, as for example, the arrangements for European political parties agreed at first reading in June 2003 and the regime for GMOs settled at second reading the following month. (European Parliament 2004).
These changes are ones that the Council has been willing to adapt to and accept, despite the challenge to its long monopoly as a legislator. Indeed its own ways of working have not stood still. The Conclusions of the Seville European Council in the spring of 2002 provided for Council to meet publicly when acting in a legislative capacity, thereby counteracting disparaging comments about its level of transparency as compared with the Parliament. The extent of Council openness can be debated but the direction of change is clear. In an interinstitutional agreement reached in June 2003 on ‘Better Lawmaking,’ the Council went so far as to indicate that it would (p.134) make its best efforts to ensure that it was represented at the appropriate level at committee meetings to be able to take the floor to explain the institution's position. For several years the Council had always resisted such calls to present its opinion in committee, not wishing to commit itself as an institution in front of the Parliament and fearing it might be isolated in such a parliamentary debate. The change agreed represents a willingness on the part of the Council to countenance a measure of ‘parliamentarization’ of its work—a change prompted first and foremost by the arrival of co‐decision.
Second, the bargaining between the institutions and inside the institution has witnessed a high level of bipartisanship and cross‐party agreement. Compromise has become a central feature of the work of the institution. In part this can be explained by the voting requirements in the Parliament. Whereas in first reading only simple majorities of those present are required to pass amendments, in second reading amendments require the support of an absolute majority of all members of the Parliament, that is half plus one (367 in the post‐enlargement Parliament of 732 members). Such majorities cannot be carried by one group in the Parliament; negotiations are needed between the groups to enable them to find joint agreement. Without such negotiation, the Council's common position stands and the Parliament can exercise no influence. Hence there is a strong incentive to overcome differing ideological perspectives.
Hix (2002) has argued that the level of cohesion within groups and the degree of left‐right competition in the EP have increased substantially, thereby making the EP more like other parliaments in Europe. He shows convincingly that party allegiance is much more important than nationality in determining how members vote and that members vote the party line more often than legislators in the USA. At the same time, the degree of cooperation across party lines remains strong. This need not mean a Socialist‐European People's Party (EPP) coalition: winning coalitions are fluid, with the Liberals, for example, having played a major role in the fifth legislature (1999–2004) in determining whether or not an absolute majority was achieved for legislative acts requiring an absolute majority. As Kreppel (2003) has noted, the extent of these coalitions is much more reminiscent of the USA than of European legislatures. She points to clear opposition between Republicans and Democrats of on average 54 percent between 1980 and 1998 and a figure of around 45 percent for clear opposition between Socialists and EPP between 1980 and 1996. Even if this latter figure is now increasing, as Hix suggests, it remains much smaller than equivalent figures for national European legislatures.
The Hix study is based on an evaluation of roll call votes, and one of the difficulties of the new bargaining culture of the Parliament is that it conceals much of the discussion within and between the groups. Many issues are not debated on the floor of the house but rather compromises are worked out in (p.135) advance without roll call votes being called for. Clegg and van Hulten put the point as follows when speaking about agreements reached at second reading: ‘political argument is usually displaced by detailed horse‐trading to secure the widest possible cross‐party support for a given position or set of amendments’ (Clegg and van Hulten 2003: 14). At the July 2003 session in Strasbourg, for example, a whole series of votes at second reading, including the legislation on GMOs mentioned above, took place where the texts had already been prenegotiated with the Council and there was very wide support for these compromises within and between groups. Under these circumstances, no roll call votes were called as no group had a strong interest in revealing how others had voted. Hence the figures used by Hix tend to understate the degree of cross party voting and bipartisanship that takes place.
Third, the new powers give even greater power and influence to parliamentary committees and the rapporteurs working within them. The Parliament was always a parliament of committees where all debate begins in committee before moving onto the floor of the house. The system of rapporteurs, with one MEP responsible for a draft proposal from its transmission to the Parliament by the Commission to the conclusion of the procedure, has heavily influenced the level of specialization with members often acquiring over time very high levels of knowledge of issues under discussion and thereby being heavily courted by Community officials and outside interests in a way that national parliamentarians in Europe can hardly imagine.
The arrival of co‐decision has served to enhance still further the role of committees, as they become the place where the legislative stance of the institution is essentially determined. The result is often fierce argument between committees as to who should be responsible for a proposal. Opinion‐giving committees are not able to table any amendments in plenary that are defeated in discussion in the responsible committee and are obliged to seek support for their position in political groups or as thirty‐seven individual members—a path that rarely leads to success. And within committees the role of rapporteurs has also been enhanced. The desire of the Council to find agreements earlier in the legislative procedure and to avoid the heavy constraints of conciliation has encouraged it to engage in extensive contacts with rapporteurs and shadow‐rapporteurs (the latter appointed by groups other than that of the rapporteur in recognition of the importance of that individual) in often very informal surroundings. It has proved very effective as a way of finding solutions, but has also generated a challenge to the tradition of open debate in committee, with members not involved in the negotiations obliged to ratify compromises devised elsewhere.
Some claim that these arrangements are unhealthy and give too much influence to individual members at the expense of a coherent political group position. Clegg and van Hulten (2003) have argued that there should (p.136) be more party political discipline with greater emphasis on politics than on technical lawmaking. And yet arguably it is the structure of the legislative process itself that produces the kind of lawmaking we have in the EU. It certainly contrasts with the roles of parliamentarians in national parliaments in Europe, but looks very familiar to students of US politics.
Perhaps claims about the excessive influence of individuals would be more likely to win support if the end results of the legislative process had been widely seen as unsuccessful. In fact, not only has Parliament acquired new powers, it has exercised them in a way that has strengthened its claim for their further extension. It has proved able to assume its role as an independent institution, bargaining towards mutually agreed outcomes on a wide range of legislative issues. Not all—not least interlocutors in the Council—imagined it would be able to fulfil such a role. The success of the institution was well illustrated by the debates in the Convention on the Future of Europe. Virtually every speaker, regardless of their institution of origin at European or national level, spoke of co‐decision in a highly supportive manner, as the normal way legislation should be approved. By contrast, the competing procedures (notably consultation and cooperation) were treated as inadequate, if not illegitimate. The result was that the final text of the Constitution makes minimal changes to the nature of the procedure itself as it exists today but incorporates two major modifications. First, the word ‘co‐decision’ is suppressed and replaced by the term ‘the ordinary legislative procedure’—a remarkable transformation of the exceptional into the normal. Second, the procedure is to apply to around ninety legal bases, including important parts of agricultural and fisheries policy, long seen as beyond the reach of the Parliament.
As a result of these changes the Parliament has been placed on a trajectory that will reinforce the various features of its work described in this section. It will bargain even more with Council throughout the legislative procedure, it will be forced to find agreements across party lines on a wider set of issues, and more of its committees and rapporteurs will acquire the experience of aggregating opinion within the institution in the search for compromise. In short, we will have a Parliament that will look much more like a legislature than a chamber for debate, thus prompting comparison with the US Congress but offering a clear contrast with its national counterparts in Europe.
4. Is a Hybrid System Possible?
Is the distinction offered up to now too stark? Is it not possible to imagine a hybrid system, with the Parliament continuing to reinforce its legislative role (p.137) as well as strengthening its control over the executive in the way it has done in the last fifteen to twenty years?
Certainly the EP will not become a simple legislative machine. The arrangements proposed in the Constitution provide ample space for the Parliament to develop new ways of exerting influence over the composition and behavior of the executive bodies of the Union, including the Commission and its President. MEPs are strongly influenced by European parliamentary traditions and recognize the strength of the argument that elections should provide an opportunity to change the direction of government. ‘Throw the rascals out’ remains a central tenet of democratic politics. Hence the constant desire to introduce a stronger partisan logic into the choice of executive positions, such as the President of the Commission. Nevertheless, the logic of the EU institutions provides strong arguments for supposing that the two directions discussed here are not ultimately reconcilable and that whatever the rhetoric, one is much more likely to prevail than the other.
In the first place, the institutions are structured in such a way that none can directly control the other. There is a constant attempt by each to influence the other but they remain separate. The appointment of the Commission by other institutions, the European Council and the Parliament, does not contradict this separateness because of the balance that is maintained in the roles of each of the appointing bodies. To have ended that balance by giving the effective right of appointment to the Parliament alone would not only have reinforced the partisan nature of the Commission and made it dependent on the support of a majority in the Parliament, it would also have opened the Parliament up to a challenge to its autonomy. A number of members of the Convention argued that a corollary of the Parliament appointing the Commission would be the possibility for the Commission or Council to be able to dissolve the Parliament. Such a suggestion was met with little enthusiasm in the Parliament, but it underlines the contradiction in calls for parliamentary government at European level. Within such systems executives are normally much more able to control parliaments and thereby to reduce their influence as legislators. In fact, the rejection of the option of dissolution and of the suggestion that Parliament has the prime say in the election of the Commission President can be seen as a confirmation of the strength of the existing logic of the institutions based on a separation, not fusion of powers. In the words of Federalist Paper 51, ‘the several constituent parts’ have ‘by their mutual relations, the means of keeping each other in their proper places.’
A second reason for being sceptical about the hybrid option is that it overlooks a significant feature of the Union, namely that it provides for an extremely delicate balance between an extraordinarily wide range of interests, with all able to identify with one or other part of a divided system of government. The introduction of a logic of partisanship, based on the (p.138) decisions of a political majority within a parliamentary government, would provide a very severe test for that balance. Arguments of the lack of a ‘demos’ at European level reflect the fact that there is no wider sense of belonging in the EU, nor sufficient trust amongst the participants, that would serve to legitimize majority decisions based on one political family being able to put through its programme. This strong resistance to majoritarian mechanisms is reflected in the constant struggle of all the institutions constantly to balance competing interests, to avoid the sense that ‘losers’ are only on one side of the argument. In this sense, the European system does bear a close relationship to the American one, with reluctance on both sides of the Atlantic to countenance a centralization of power. It is a tendency that enlargement seems certain to reinforce.
This is not to claim that the EU is explicitly seeking to copy the US model, still less that the Parliament will become like one of the branches of the US Congress. Even with all the powers foreseen in the Constitution, the legislature at EU level will continue to operate within a much narrower sphere than the Congress. The kind of political issues that traditionally predominate in the minds of European citizens, such as education, healthcare and pensions, are all ones that will continue to be decided at national level. MEPs will not obtain the kind of powers that congressmen have in influencing the location of investment and government funds in their own states. European legislation does not spread anything like as far as that decided at federal level in the USA. It remains more regulatory in nature, with only limited distributive or redistributive functions.
Rather the suggestion here is that the dispersion of power within the EU provides greater scope for the EP to develop its role as a legislature than it does for it to become a chamber for debate where governments stand and fall on the basis of majority vote. Europeans are faced with problems similar to Americans in finding a way to legitimize the exercise of power amongst very diverse interests. It is difficult to imagine that it can be done other than by ensuring a consistently high level of bargaining and compromise between autonomous institutions rather than by allowing any institution preeminence.
5. A Potential Scenario
If the Parliament is more likely to become a separate legislative body, thereby converging on an institutional form found in the USA, what can we expect the impact of such a body to be on the policies of the EU towards the USA? A parliament sustaining a majority in the executive enjoys a very different status from one that is seen as an independent institution with powers to (p.139) influence the shape of legislation. It is freer to criticize the executive without endangering the latter's continuance in office—a tendency that one could expect to be even greater when the political color of the majority in the Parliament, elected at a different moment from most national governments, does not match that of the Council of Ministers. Convergence in institutional form could therefore very well be accompanied by divergence in policy preferences.
Criticism of the executive by the legislature was well illustrated in the spring of 2004 when the Parliament voted against the agreement reached between the Commission, acting on behalf of the member states, and the USA on the provision of data about air passengers flying to the USA. A majority in the Parliament felt that the amount of information to be supplied was excessive and that it was to be kept for more time than was necessary. Moreover, it was felt that the agreement contradicted the existing EU legislation on the protection of data. The agreement was signed nonetheless, provoking the Parliament to decide to go to the European Court of Justice. The case is not designed to illustrate the influence of the Parliament—its challenge may not be successful—but rather to show how an independent Parliament can feel free to attack an executive decision, something that it would be most unlikely to do if the executive operated on the basis of a partisan majority.
At the same time, the development of autonomy of this kind can be seen to be having its effect on the way in which others treat the Parliament, even in an area where the Parliament's role is very restricted. For example, its role in international agreements is strictly limited. In most cases there is no right of assent, no possibility to say no. Yet this has not stopped Pascal Lamy, the Commissioner for External Trade from 1999 to 2004, acting as if the Parliament did have such rights. He specifically decided to involve MEPs in trade negotiations and expanded the delegations of the EU at Seattle and Doha to include a larger number of parliamentarians (Lamy 2002). It would be naïve to imagine that the presence of MEPs would by itself influence outcomes but it points in the direction of Parliament as a body strengthening the bargaining position of the Commission. Pat Cox, President of the Parliament from 2002 to 2004, has argued explicitly that the EP should be able to serve the same kind of role as that of the Congress in the World Trade Organization:
In the final phase of negotiations, imagine Robert Zoellick, the United States Trade Representative, turning to Pascal Lamy for the EU and saying: ‘you have a better case than I have but I cannot give in because of the Congressional monkey on my back.’ We should put a parliamentary monkey on Pascal Lamy's back if we want to protect European interests in this increasingly globalized market place. (Cox 2003)
(p.140) Indeed, such a monkey may have already have been placed there as a result of legislative decisions that the Parliament has been directly involved in. The agreement reached in co‐decision in July 2003 on the labelling of GMO products as part of a package to end the moratorium on GMO imports brings together member states and the EP around a position which is likely to be defended robustly in any case brought before the World Trade Organization. The Council and Parliament are bound to defend together the results of the legislative process in this case outside the EU, just as they do when faced by a challenge inside its borders.
It is now over thirty years since Andrew Shonfield wrote of Europe journeying to an unknown destination (Shonfield 1973). For much of that same period a similar claim could be made about the development of the EP. It was by no means clear what kind of institution the EP would become as it struggled, with remarkable success, to achieve a more prominent role.
Over this period the Parliament has moved forward on a trajectory heavily influenced by previous decisions, with member states reluctant to deny its claims for greater powers and unable to put forward a coherent alternative structure for ensuring democracy at European level. At the same time, the existing structure of the Union has shaped that trajectory, making it increasingly easy to imagine a reinforced separation of powers between the executive and legislative branch rather than a fusion of powers of the kind familiar to Europeans.
As a result, those who consider that the legitimacy of the EU depends on the creation of parliamentary government are likely to be disappointed. The Parliament will remain a specialist, rather than a generalist legislative body, reflecting and integrating the ever more diverse interests of the Union and acting autonomously from the many and various executive bodies of the Union. Such a direction may make the circumstances surrounding the establishment of the Barroso Commission less significant than they appeared at the time, but provides powerful grounds for a greater US interest in the fortunes of the Parliament, an institution that has otherwise seemed subsidiary to the transatlantic debate.
Clegg, N. and van Hulten, M. (2003). Reforming the European Parliament. Brussels: Foreign Policy Centre.
Costa, O. and Magnette, P. (2003). ‘Idéologies et changement institutionnel dans l'Union Européenne. Pourquoi les Gouvernements ont‐ils constamment renforcé le Parlement européen’, Politique européenne, 9 (Winter): 49–75.
Cox, P. (2003). ‘Filling the Democratic Gap’, in J. Weiler, I. Begg, and J. Peterson (eds.), Expanding the European Union: Reassessing the Fundamentals. Oxford: Oxford University Press.
European Parliament (2004). Activity Report 1May 1999 to 30 April 2004 of the delegations to the Conciliation Committee. Strasbourg: European Parliament, PE 287.644.
Hix, S. (1998). ‘Elections, Parties and Institutional Design: A Comparative Perspective on European Union Democracy’, West European Politics, 21/3: 19–52.
—— (2002). ‘Constitutional Agenda‐Setting Through Discretion in Rule Interpretation: Why the European Parliament Won at Amsterdam’, British Journal of Political Science, 32: 259–80.
Judge, D. and Earnshaw, D. (2003). The European Parliament. Basingstoke: Palgrave Macmillan.
Kreppel, A. (2003). ‘The Environmental Determinants of Legislative Structure: A Comparison of the US House of Representatives and the European Parliament’, Paper prepared for the 8th Biennial European Union Studies Association Conference, Nashville, TN, March.
Lamy, P. (2002). L'Europe en première ligne. Paris: Seuil.
Magnette, P. (2001). ‘Appointing and Censuring the European Commission: The Adaptation of Parliamentary Institutions to the Community Context’, European Law Journal, 7/3: 292–310.
Shackleton, M. (1998). ‘The European Parliament's New Committees of Inquiry: Tiger or Paper Tiger?’, Journal of Common Market Studies, 36/1: 115–30.
—— (2000). ‘The Politics of Co‐decision’, Journal of Common Market Studies, 38/2: 325–42.
—— and Raunio, T. (2003). ‘Co‐decision since Amsterdam: A Laboratory for Institutional Innovation and Change’, Journal of European Public Policy, 10/2: 171–87.
Shonfield, A. (1973). Europe: Journey to an Unknown Destination. Harmondsworth: Penguin.
(1) The views expressed in this article are strictly personal and do not represent the official position of the European Parliament. The author would particularly like to thank Amie Kreppel and Renaud Dehousse for encouraging him to pursue the ideas found here, and his colleagues Stephen Clark and Ian Vollbracht for their thoughtful comments.
(2) The Guardian, November 13, 2004.
(3) The one major change in the Parliament's position prior to direct elections was its acquisition of budgetary rights in 1970 and 1975 (see Corbett et al. 2003: 212 ff.). These powers have remained essentially unchanged in the intervening decades (with the prospect of a further extension under the Constitution) but have always constituted an important symbol of the Parliament's emergence from relative obscurity.
(4) The Conciliation Committee can be compared—with care and caution—to Conference Committees in the United States Congress and the Vermittlungsausschuss that brings together representatives of the Bundestag and the Bundesrat in Germany. All three seek to overcome differences between two bodies whose agreement is required before legislation can enter into force.