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A LEGALITY FRAMEWORK FOR EXPERIMENTAL LEGISLATION

Principle of Legality

The principle of legality is a corollary of the principle of separation of powers. It constitutes a safeguard against arbitrary government action but, at the same time, it should not frustrate the actions expected from the modern public administration:[1] it is not up to the legislator to fulfil a ‘research function’ experimenting with the best approaches to new problems. Such a time- and resource-consuming task does not match the legislator’s role. However, at the same time, citizens should be protected from far-reaching interventions in fundamental rights which, on an experimental basis, can substantially modify or withdraw benefits or impose upon them additional burdens. The main concern here is that experimental regulations do not become an unwarranted delegation mechanism for areas reserved to the legislator which can be used to severely restrict fundamental rights. To avoid such a scenario, the legislator should remain the master of experiments with laws.

It is important to underline that ‘to fulfill its promise, democratic government must be democratic as well as effective’.[2] Therefore, legislative delegation (not only for the purposes of experimental regulations) is one of the basic foundations of public administration: in Germany, the United States, the Netherlands, and even in the European Union, it is inconceivable, undesirable, inefficient and physically impossible to leave all regulatory tasks to Parliament.[3] Since the 1980s there has been a tendency towards the enhancement of this mechanism of transferring legislative and administrative competences in order to ‘revitalize’ the public administration and respond to the exigencies of the modern state.[4] Delegation promotes, amongst others, legislative flexibility and efficiency since regulations can be rapidly enacted and modified; and advances decentralization by authorizing actors who are closer to the problems to be regulated, and more informed about them, to undertake the regulation.[5] This explains why the ‘modern nation-state could not exist without delegation’.[6]

Notwithstanding the broad acceptance and employment of delegation, this instrument can distort to a certain extent the original meaning of the principle of legality.[7] This is not a surprising finding or original claim but it translates a general observation: ‘by transferring rulemaking competences to the executive, namely to the government, ministries and even administrative agencies, the direct participation of the parliament in the establishment of rules [can be] endangered’.[8]

The expansion of delegation and of ‘the regulatory state’, not only in the different legal systems but also at the EU level, has raised many questions as to the need to secure democratic legitimacy. According to Majone, this legitimacy will be at stake when important policy-making powers are delegated to non-majoritarian institutions, notably agencies.[9] This scholar suggests enhanced accountability structures as the solution to this problem. Legislative delegation implies in fact that the administrative organ exercising the delegated legislative competence will do so on its own behalf and responsibility. It has been underlined in the Dutch literature that it is exactly this responsibility or, more precisely, accountability that partially compensates for the ‘loss’ in democratic legitimacy.[10]

A clear intervention of Parliament in the delimitation of an experimental provision would aim to respond to the mentioned challenges. In addition, an active intervention of the legislator at this level enhances the democratic legitimacy of the experiment, which can potentially attenuate the intellectual reluctance towards experimental laws and regulations and improve their acceptance.

To resolve the above-mentioned legality intricacies, the legality framework for experimental legislation suggested below (3.4.2) will be inspired by the German theory of essentiality (Wesentlichkeitstheorie) and interpreted in the sense that the ‘essential elements’ of an experimental legislative instrument should be predetermined by Parliament. This legality framework aims to provide the answer to, or guidance on, diverse enigmas: does experimental legislation endanger the reservation of parliamentary law (Parlamentsvorbehalt) and can the respective prohibition to delegate (Delegationsverbot) be circumvented with an experiment? If the legislator is entitled to delegate, how far can the legislator go in delegating the competence to experiment? These questions are relevant in the Netherlands, Germany and in the United States and are inevitable dilemmas in ‘a modern constitutionalism whose theoretical justifications presuppose regarding government as a concatenation of confined lines of attribution, and whose practices reside in a systematic probing of the title, purpose, scope, and outer legal limits of each exercise of power’.[11] Section 3.5 elaborates on the theories of delegation behind this framework and the definition of ‘essential elements’, while section 3.6 provides an explanation and illustration of these elements.

  • [1] W. Voermans, ‘Legaliteit als middel tot een doel’ in NJV, Handelingender Nederlandsche Juristen-Vereeniging, Controverses rondom legaliteit en legit-imatie (Kluwer, 2011) vol. 141(1), 3.
  • [2] W.C. Muller, T. Bergman and K. Str0m, ‘Parliamentary Democracy:Promise and Problems’ in W.C. Muller, T. Bergman and K. Str0m (eds),Delegation and Accountability in Parliamentary Democracies (Oxford UniversityPress, 2003) 3.
  • [3] A.H.M. Dolle, Mandaat en delegatie (W.E.J. Tjeenk Willink 2000) 1.
  • [4] Hermann Punder, ‘Democratic Legitimation of Delegated Legislation: AComparative View on the American, British and German Law’ (2009) 58 (2)International and Comparative Law Quarterly 353-4.
  • [5] W. Voermans, Toedeling van bevoegdheid (Boom Juridische Uitgevers,2004) 39.
  • [6] A. Lupia, ‘Delegation and its Perils’ in W.C. Muller, T. Bergman and K.Str0m (eds), Delegation and Accountability in Parliamentary Democracies(Oxford University Press, 2003) 32.
  • [7] Voermans, Toedeling van bevoegdheid, n. 23 above, 39.
  • [8] Ibid. 39.
  • [9] Giandomenico Majone, ‘The Regulatory State and its Legitimacy Problems’ (1999) 22 West European Politics 1; see also Giandomenico Majone, ‘TheRise of the Regulatory State’ (1994) 17 West European Politics 77; Giandomenico Majone, ‘Regulatory Legitimacy’ in G.D. Majone (ed.), RegulatingEurope (Routledge, 1996) 284.
  • [10] Voermans, ‘Legaliteit als middel tot een doel’, n. 19 above, 1, 43.
  • [11] B. Iancu, Legislative Delegation: The Erosion of Normative Limits inModern Constitutionalism (Springer, 2012) 1.
 
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