The ‘Deparliamentarisation’ of Legislation: Framework Laws and the Primacy of the Legislature

Abstract

The use of framework laws or 'skeleton' bills with lots of open texture and far-reaching delegation of rule-making powers to the executive, to independent agencies and to private rule-makers has started a process of the creeping 'deparliamentarisation' of legislation both at the national and the European level. In the Netherlands the position of Parliament as a co-actor in the legislative process is enshrined in the Constitution but that does not seem to protect citizens against the outsourcing of legislative tasks to non-elected bodies. At the European level a primacy of the parliamentary legislature appears to be emerging. Especially Article 290 TFEU lays down conditions for the delegation of regulatory powers and provides the European Parliament and Council with some tools for monitoring and control. How do framework directives relate to these conditions and does the choice for framework legislation at the EU level also affect the primacy of the national legislature? The central claim of this contribution is that the concept of the primacy of the legislature, which is supposed to guarantee the democratic legitimacy of legislation, is itself poorly protected by the current constitutional rules and practices. Three ways to move forward will be sketched.