The crisis of confidence in legislation: The Story of Two European Families in Jamaica 9781509939862, 9781509939855

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Preface

The present book is divided into four parts according to the structure of the Annual Conference of the International Association of LegislationIAL, which took place in Rome on 25th October, 2019. The Conference was organised by the IAL together with LUMSA (with the support of the Erasmus + Programme of the EU, JM Chair on EU Approach to Better Regulation), LUISS Guido Carli and Roma Tre Universities, as well as by the Institute Luigi Sturzo of Rome. It was hosted by the Italian Senate of the Republic and enjoyed the patronage of the Italian Senate itself and that of the European Parliament. The topic of the Conference “The Crisis of Confidence in Legislation” was articulated in a series of panel discussions, which now constitute the sections of the book: Confidence in Legislation as a Regulatory (and Ad‐ ministrative) Problem; Improving Confidence in Legislation Via Better Regulation Tools; Responsibility of Parliaments in Improving Confidence in Legislation; and Confidence in Legislation and Enforcement. This structure proved to be very useful for a fruitful conference, and has been confirmed by the book, whose four parts constitute developed and more extensive elaborations by authors who have greatly benefited from their dialogues at the Conference. The Introductory chapter provides an overview about meanings and definitions, by critically analysing confidence not only as related to trust, but as a possible consequence of controls. The current crisis of confidence is even more severe than at the time of the Conference: during these months, the Covid-19 pandemic has completely rewritten the geography of trust towards institutions at different levels of Government (countries, Europe, international), and affects both trust in institutions as well as le‐ gislative effectiveness; this requires a deep understanding of reasons and responsibilities related to the crisis in order to prepare the ground for restoring confidence in policies (De Benedetto).

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The first group of chapters, in the section devoted to “Confidence in Legislation as a Regulatory (and Administrative) Problem”, analyses three general aspects. The starting point is that distrust in legislation is not just a current phe‐ nomenon: in the period between the two World Wars, scholars and aca‐ demics developed a strong criticism of parliamentarism and legislation. Among other severe consequences, such criticism influenced the institu‐ tional design of contemporary European constitutional democracies, as the birthing process of Constitutional Courts. The chapter retraces the early academic debate with regard to historical events and to human and social sciences and literature concerning Germany, France, Italy, Spain and Por‐ tugal: legal scholars in this context have been considered as being strongly connected to their colleagues in philosophy, sociology, psychology, and economics (Esteve Pardo). Moreover, a further chapter indicates an urgent need to improve the scope and instruments of good governance, with special reference to better legislation tools, to the effective implementation of laws by administration and to the enforcement of laws by administration and courts. Regarding the current crisis of confidence, it is opportune to dedramatize. In fact, more than emotional distance between citizens and republic and democra‐ cy, current times are characterized by disappointment about – and a lack of trust in – the political actors. Such confidence in these actors urgently needs to be re-established (Karpen). In the last chapter legislation is considered as a tool for trust and confi‐ dence in the European Union, by advocating that the EU, as any modern regulator, can participate in the political dialogue. A European legislator should directly address its citizens through its legislation, in this way com‐ bating the populist rhetoric and making its incredibly relevant regulatory rationale all the more appealing. The chapter indicates a possible roadmap to increase loyalty and trust in European legislation, which should follow a step by step process: in this process, the first step should be to identify the users of EU legislation, the second step to set the pitch of EU legis‐ lative texts and the third step to defining a better structure for EU legisla‐ tion (Xanthaki). The second part of the book is devoted to “Improving Confidence in Legislation Via Better Regulation Tools”. The main point is that better regulation tools can potentially contribute to facing the crisis of confi‐ dence during the whole life-cycle of rules. On the one hand, they create an inclusive process of law-making based on the involvement of representa‐ 6

Preface

tive institutions at national and European level. On the other hand, they also allow a constant interaction with citizens and stakeholders. However, in order for better regulation to play this role, some conditions need to be fulfilled. These conditions will be analysed in the chapters of this second section. The first chapter claims that impact assessment and judicial review in‐ crease trustworthiness, provided that these arenas interact (Radaelli and Taffoni). Impact assessment is an arena with the potential to enhance trust within legislation, by opening the decision-making process to evidences and to consultation, as well as by allowing control over the entire process. After a rule has come into force, it is judicial review that enhances trans‐ parency and allows control over the impact assessment performed, as well as over regulation. The lack of convergence among judicial reviews across countries (with regard to deference and remedies) is detrimental to trust and should be addressed by better regulation agendas, both at European and national level. The second chapter acknowledges that consultation could activate a vir‐ tuous circle of better rules, acceptance, and public trust (Rangone). How‐ ever, mere consultation-based rule-making and law-making is not enough, and effective consultation is needed in order to activate this virtuous cir‐ cle. To this end, a starting point could be a non-formalistic approach to some widely recognised minimum requirements. Moreover, these should be enriched so as to integrate some further methods deriving from differ‐ ent disciplines, from legal drafting to cognitive sciences. Consultation should also be drawn up so as to secure compliance. Furthermore, it is necessary to balance the objective of increasing participation while at the same time collecting valuable contributions, only without ossifying the de‐ cision-making process. The third chapter claims that parliaments may be essential players in fulfilling the role of better regulation tools by overcoming the crisis of confidence in legislation (Griglio). In order for parliaments to be empiri‐ cally engaged, the most effective perspective is to be involved in the over‐ sight of governments and independent bodies, mainly in their use of better regulation tools, e.g. impact assessment. This implicit prerogative exer‐ cised through non-binding powers might hold the latter accountable for any decision taken in initiating, scrutinizing or following- up legislation and thus can be decisive in enhancing the quality of legislation.

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The fourth chapter underlines that transparency is a necessary condition for trusting the quality of EU regulation (Basyte Ferrari, Rosenbaum, Lis‐ torti and Ostlaendr). Despite better regulation tools increasing the effi‐ ciency and effectiveness of legislation, it is actually transparency which enables citizens to be informed and take part in EU decision-making, thus allowing better regulation to be effective. The relationship between trans‐ parency about the evidence used in decision-making and trust in the rules which have entered into force is particularly relevant in this current crisis, when many of the latter are (or are supposed to be) based on scientific evi‐ dence which should be shared with citizens in order to feed public trust. In the third part, “Responsibility of Parliaments in Improving Confi‐ dence in Legislation”, several topics are addressed, all regarding the evo‐ lution of the role of Parliaments. The first contribution moves from criticizing the traditional assump‐ tions, according to which Parliaments are supposed to be the primary insti‐ tutional transmission and transformation channel of the demands deriving from a pluralistic and complex society, and they carry the principal re‐ sponsibility for the legislation approved. It shows this by looking at the expanded “normative role” exercised by the Italian Government: legisla‐ tion has become more and more precarious and unstable, and more depen‐ dent on emotions and political slogans than on empirical analyses, so mak‐ ing the institutional system very vulnerable to populist movements and trends (Lupo). The second contribution addresses the fundamental question on how parliaments can help improve citizens' confidence in legislation, answer‐ ing that one of the most promising approaches to combat the crisis of con‐ fidence in parliamentary legislation seems to be connected with the intro‐ duction of effective participatory channels between parliaments and citi‐ zens. From this point of view the challenge to be met by legislative assem‐ blies consists in deploying a real capacity to engage the people in parlia‐ mentary work, aspiring, in perspective, to build a capital of civic trust based on the democratic governance of complexity (Rizzoni). The third contribution examines a more specific, although crucial issue, wondering whether and how the notion of legitimate expectations is relat‐ ed to the concept of trust in Parliament. In so doing, it finds some mis‐ match between the notion of trust and the legal notion of legitimate expec‐ tations, also consisting in leaving unpunished the fact that causes legal un‐ certainty, namely the enactment of unreliable legislation. Furthermore, the

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analysis of the case law reveals that legal certainty is a responsibility that is shared by all government bodies (Popelier). The fourth and last contribution deals with the role of Parliaments in the European Union, examining initiatives taken towards improving the par‐ ticipatory and representative democracy of the EU. The European Parlia‐ ment, together with the other EU institutions, responded to the ʿfunctionalʾ concerns by developing a body of rules, procedures and practices that re‐ late to the way powers are exercised in the EU (ʿEuropean Governanceʾ), with particular emphasis on the ʿBetter Regulationʾ system. national par‐ liaments also have a common role to play in shortening the distance be‐ tween ʿBrusselsʾ and European citizens through better communication and a greater involvement of civil society (Guggeis). In the last part of the book (“Confidence in Legislation and Enforce‐ ment”) two different perspectives are expressed, both regarding the under‐ estimated relevance of enforcement for trust. On one side, trust is considered vulnerable, and for durable trust people need recognition. If trust and recognition are the cognitive pillars of mass cooperation, the contribution looks into the ways modern legislatures use trust in particular to compose artificial worlds and communities to grease the wheels of mass cooperation. The chapter analyses law as a fiduciary institution and a form of artificial trust which has become ever more rele‐ vant considering the increasing scale of human co-operation. The chapter concludes that we need to know more about how legislation does or does not build trust by considering this aspect as the X-factor of all law (Voer‐ mans). On the other side, the lack of confidence is not necessarily directed at “legislation” but it appears to have affected the “delivery” side of regu‐ lation, i.e. the institutions which are tasked with implementing it, and at some of the elements which may have driven this growing distrust. For this reason, the design and delivery of regulation to offer better results is considered relevant, both in terms of “objective” results and in terms of public trust. The chapter argues the importance of regulatory delivery for modern regulations, while also remembering the influence of regulatory “incomprehensibility”, impossibility of “optimal” rules and the need for discretion and advocating for effective regulatory delivery (Blanc). The concluding chapter (Coglianese) argues that in countries where economic and social conditions have already weakened public trust (e.g. the US, Brazil and the UK), populism challenges governmental legitimacy and efficacy by falsely blaming law and regulation as being the cause of 9

Preface

the crisis. Such an approach turns law and regulation into a scapegoat and fuels public distrust. There are no shortcuts to tackle this problem, espe‐ cially because “when scapegoating law, facts do not matter”. It is therefore important, on one the hand, to recognize legal scapegoating and, on the other hand, to work daily so as to achieve regulatory excellence, based on legislative and regulatory quality outcomes. The integrity of public offi‐ cials, as well as openness and fairness in the enforcement proceedings are also essential. Maria De Benedetto Nicola Lupo Nicoletta Rangone

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Authors’ affiliations

Basyte Ferrari, Egle, European Commission, Joint Research Centre, Policy Analyst Blanc, Florentin, OECD, Regulatory Policy Division, Senior Policy Analyst Coglianese, Cary, University of Pennsylvania, Law School, Edward B. Shils Professor of Law and Political Science and Director of Penn Program on Regulation De Benedetto, Maria, Roma Tre University, Full Professor of Administrative Law, Isti‐ tuto Luigi Sturzo Esteve Pardo, Jose, University of Barcelona, Full Professor of Administrative Law Griglio, Elena, Senato della Repubblica, Senior Parliamentary Officer Guggeis, Manuela, European Council, Legislative Acts - Planning Unit, Head Officer Karpen Ulrich, University of Hamburg, Full Professor of Constitutional and Adminis‐ trative Law Listorti, Giulia, European Commission, Joint Research Centre, Economic and Policy Analyst Lupo, Nicola, LUISS University of Rome, Full Professor of Public Law and Director of the Center for Parliamentary Studies Ostlaender, Nicole, European Commission, Joint Research Centre, Scientific Project Officer Popelier, Patricia, University of Antwerp, Full Professor of Constitutional Law Radaelli, Claudio M., European University Institute of Florence, School of Transna‐ tional Governance, Chair in Transnational Governance Rangone, Nicoletta, LUMSA University of Rome, Full Professor of Administrative Law, JM Chair on EU approach to better regulation Rizzoni Giovanni, Camera dei Deputati, Research Department, Head Officer Rosenbaum, Eckehard, European Commission, Joint Research Centre, Scientific Project Officer Taffoni, Gaia, European University Institute of Florence, School of Transnational Gov‐ ernance, Research Fellow, ERC Advanced Project Protego Voermans, Wim, Leiden University, Full Professor of Constitutional and Administra‐ tive Law Xanthaki, Helen, University College London, Dean of Postgraduate Laws Programmes of the University of London, President of the International Association for Legisla‐ tion

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The Crisis of Confidence in Legislation: an Overview Maria De Benedetto

Summary: 1. Introduction - 2. Key Concepts – 2.1 Different Words, Differ‐ ent Meanings? – 2.2 Confidence Per Se – 2.2.1 A Psychological Attitude – 2.2.2 An Evidence-Based Sentiment – 2.2.3 Confidence and Trust: Deci‐ sional Aspects – 2.3 Confidence, Output of Controls? – 3. Confidence as Institutional Determinant – 4. Confidence as a Pillar of Effective Legisla‐ tion and Regulation – 5. Confidence in Legislation and Its Crisis – 5.1 Reasons - 5.2 Responsibilities - 6. Restoring Confidence in Legislation in Times of Pandemic 1. Introduction A serious problem of confidence seems currently to be affecting mature democracies.1 It presents itself as a decrease in their social capital2, as

1 See David Runciman, The Confidence Trap: a history of Democracy in Crisis from World War I to the Present (Princeton University Press 2017). See also Cary Coglianese (ed.), Regulatory Breakdown: The Crisis of Confidence in US Regu‐ lation (University of Pennsylvania Press 2012). About “theories of democratic cri‐ sis have gone through periodic cycles of hope and fear” see Pippa Norris, ‘Introduc‐ tion: The Growth of Critical Citizens?’, in Pippa Norris (ed.) Critical citizens. Global support for democratic Government (Oxford University Press 1999) 3. On crisis of trust see finally Onora O'Neill, A Question of Trust: The BBC Reith Lec‐ tures 2002 (Cambridge University Press 2002) 4 2 On this topic, see Robert D. Putnam Making Democracies Work. Civic Traditions in Modern Italy (Princeton University Press 1993) 167: “Voluntary cooperation is eas‐ ier in a community that has inherited a substantial stock of social capital, in the form of norms of reciprocity and networks of civic engagement. Social capital here refers to features of social organization, such as trust, norms and networks, that can improve the efficiency of society by facilitating coordinated actions”. However, Putman quoted - in this regard – James Samuel Coleman, Foundations of Social Theory (Harvard University Press 1990) 300 onwards. On this aspect, see finally James Samuel Coleman, ‘Social Capital in the Creation of Human Capital’ (1988) The American Journal of Sociology, Vol. 94, Supplement: Organizations and Insti‐ tutions: Sociological and Economic Approaches to the Analysis of Social Structure,

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market and legal uncertainty3, and as weakness of their institutions.4 The problem has relevant impacts not only in individual countries but also at European and global level.5 The problem has assumed unexpected and monumental proportions due to the 2020 Coronavirus pandemic which has generated a new geography of trust among countries and institutions as well as a deep sense of loss and incertitude regarding future prospects. Nonetheless, trust in public authorities is becoming ever more impor‐ tant today than in recent decades due to the increased number of insights about its relevance and to the greater public perception of political and ad‐ ministrative corruption. However, trust in public authorities is also charac‐ terised by a serious crisis, strictly related to the crisis of confidence in leg‐ islation and regulation. For this reason, in order to rebuild public trust, a renewed attention to the quality and effectiveness of rules and to their en‐ forcement is needed, especially in these difficult days. How can public au‐ thorities effectively protect citizens and firms, prevent regulatory inflation and corruption, increase competitiveness and improve the quality of ev‐ ery-day lives of firms and citizens? What role can be played by better leg‐ islation/regulation tools in order to rebuild confidence? Scholars and aca‐ demics from many fields of research (psychology, philosophy, politics, so‐

S95 and Eric M. Uslaner ‘Democracy and social capital’, in Mark E. Warren, Democracy and trust (Cambridge University Press 1999) 121. 3 Christine Moorman, Rohit Deshpandé and Gerald Zaltman, ‘Factors affecting trust in the Market’ (1993) Journal of Marketing, Vol. 57, issue 1, 81; see also Sandro Castaldo, Trust in market relationship (Edward Elgar Publishing 2007). 4 On this point, Eurobarometer provides surveys - carried out in all Member States of the European Union - about the views of Europeans since 1973. In order to analyse trends related to occurrence on “Trust in National and International Institutions”, see https://www.gesis.org/eurobarometer-data-service/search-data-access/eb-trendstrend-files/list-of-trends/trust-in-institutions/. See also Report and statistics on Consumer Confidence in EU countries (2019) and the Business Confidence Survey (2019). Furthermore, see Christine Arnold, Eliyahu V. Sapir and Galina Zapryanova ‘Trust in the Institutions of the European Union: A Cross-Country Examination’, in Laurie Beaudonnet and Danilo Di Mauro (eds.) Beyond Euro-Skepticism: Under‐ standing Attitudes Towards the EU (2012) in European Integration Online Papers, Special Mini-Issue 2, Vol. 16, Article 8, http://eiop.or.at/eiop/texte/2012-008a.htm and Mariano Torcal and Pablo Christmann, ‘Congruence, national context and trust in European institutions’ (2019) Journal of European Public Policy, Volume 26, is‐ sue 12, 1779. See, finally, Patti Tamara Lenard, ‘Decline of Trust, Decline of Democracy? Critical Review of International Social and Political’ (2005) in Philos‐ ophy, 8 (3), 363. 5 See on this point, the Edelman Trust Barometer (2019).

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The Crisis of Confidence in Legislation: an Overview

ciology, economics and law) are strongly called upon. The huge number of contributions and the plurality of disciplines involved suggest addressing the topic along a broad and integrated social science perspective.6 In the general context of the debate on trust in Government7 and in light of the current pandemic,8 this chapter will deal both with confidence and trust: even though existing literature on the topic has proposed some dis‐ tinctions between them, they will be conclusively considered as largely in‐ terchangeable terms because they never result in full opposition, and be‐ cause proposed definitions are not always fully operative (as when confi‐ dence is expected to be evidence-based). The chapter will also refer both to legislation and regulation, in other words it refers to rules, independent‐ ly from their formal “box” and from the institutional level at which they have been adopted. The chapter is organised as follows. Firstly, I will analyse some key concepts (par. 2) starting from confi‐ dence intended per se and as the possible consequences of controls. I will later explore confidence as an institutional determinant (par. 3) and, more specifically, as a pillar of effective legislation (par. 4). Furthermore, I will briefly describe the current crisis of confidence in legislation, its main rea‐ sons, structural and emergent aspects (par. 5). Finally, I would propose

6 F. David Schoorman, Roger C. Mayer and James H. Davis, ‘An Integrative Model of Organizational Trust: Past, Present and Future’ (2007) The Academy of Manage‐ ment Review, Vol. 32, n. 2, 344. On the relevance of trust see Christopher Hodges and Ruth Steinholtz, Ethical Business Practice and Regulation: A Behavioural and Values-Based Approach to Compliance and Enforcement (Hart Publishing 2017). 7 On this aspect, see OECD, https://www.oecd.org/gov/trust-in-government.htm: “Trust in government is deteriorating in many OECD countries. Lack of trust com‐ promises the willingness of citizens and business to respond to public policies and contribute to a sustainable economic recovery”. See also Tom T. Tyler ‘Trust and Democratic Governance’, in Margaret Levi and Valerie Braithwaite (eds), Trust and Governance (Russell Sage Foundation 1996), 269. 8 See Francis Fukuyama, ‘The Thing That Determines a Country’s Resistance to the Coronavirus. The major dividing line in effective crisis response will not place au‐ tocracies on one side and democracies on the other’ (March 30, 2020) in www.theat lantic.com : “The crucial determinant in performance will not be the type of regime, but the state’s capacity and, above all, trust in government”; Bo Rothstein ‘Trust Is The Key to Fighting the Pandemic. Containing the spread of COVID-19 may re‐ quire that citizens have faith in both their government and one another’ (March 24, 2020) in https://blogs.scientificamerican.com; see also, Bob Weber ‘Experts study how coronavirus pandemic affects trust in officials, ourselves’, in The Canadian Press, 29 March 2020, in https://www.ctvnews.ca.

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considerations about the need for and the possibility to restore confidence in legislation and regulation by indicating some ideas on how this confi‐ dence could be improved (par. 6): they will be developed in following chapters of the book regarding the role of better regulation tools and en‐ forcement as well as the responsibility of Parliaments and of other regula‐ tors. 2. Key Concepts Confidence and trust (as related notion) include psychological, relational, social, economic and institutional aspects which should be clarified before focusing on the topic in question (confidence in legislation). In the follow‐ ing paragraphs, I will briefly seek “to define and delimit the elusive notion of trust”9 with the perspective of making it fit for specific institutional pur‐ poses. To this end, focus will be on words, on psychological, cognitive and decisional aspects of confidence (and trust) as well as on confidence as a result of controls, under certain conditions. 2.1 Different Words, Different Meanings? The term confidence has a Latin origin, from the word fides. It is common‐ ly considered to express a concept close to that of trust, a word with an Indo-European genesis.10 Both terms, in turn, are understood as also being connected to faith,11 which in the same Latin etymological framework, ex‐ presses religious trust. This lexical difference is less perceived in other languages where words with Latin roots have prevailed, and where there is only one way to express the ideas both of confidence and trust: fiducia in Italian, confiance in French, confianza in Spanish.

9 Oliver E. Williamson, ‘Calculativeness, Trust, and Economic Organization’ (1993) Journal of Law and Economics 36(1), part 2, 453. 10 Émile Benveniste, Le vocabulaire des institutions indo-européennes, vol. I : économie, parenté, société (Les Éditions de Minuit 1969) 103. 11 Georg Simmel, Philosophy of Money (English translation of Philosophie des Geldes, 1900; Routledge third enlarged edition, ed. by David Frisby, 2004) 177-178: “without the general trust that people have in each other, society itself would disintegrate”.

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Furthermore, trust has historically a specific and original consistency in English-speaking countries’ legal systems, where it indicates a legal ar‐ rangement at the boundaries of property law and obligations,12 so particu‐ lar that scholars and academics have wondered if “it can be placed in European ius commune tradition”.13 In other words, when talking about trust scholars and academics should always make clear which trust they intend. However, although the common and theoretical use of the English words confidence and trust is often fungible,14 there is also literature from different fields of research on differences among them. If “to trust” is ex‐ plained as “to place confidence in”,15 the danger of tautology is concrete and suggests defining and delimiting concepts, as far as possible. 2.2 Confidence Per Se Confidence can be firstly observed per se, focusing on people’s sentiments of trust characterised in all times, places and circumstances even by cogni‐ tive and decisional profiles, because they are based on experiences. As we will see later (par. 2.3) confidence may also represent the output of con‐ trols (and sanctions) but only under certain conditions: in fact, the way in which controls are carried out and sanctions are imposed can sometimes even lead to sentiments of distrust.

12 See John H. Langbein, ‘The Contractarian Basis of the Law of Trusts’ (1995) The Yale Law Journal, Vol. 105, 625. 13 Cornelis Hendrik Van Rhee ‘Trusts, Trust-like Concepts and Ius Commune’ (2000) European Review of Private Law, 3, 453. 14 See Anthony Giddens, The Consequence of Modernity (Polity Press 1990) 29. 15 https://www.merriam-webster.com/dictionary/trust.

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2.2.1 A Psychological Attitude Trust is – prima facie - a sentiment16 or an attitude which needs a personto-person relation.17 It is based on prevalence of emotions even though it also presents cognitive profiles.18 Trust is characterised by the presence “[…] of risk, uncertainty, vulnerability and the need for interdependency with another person”19 while it always presupposes incomplete informa‐ tion. In few words, if trust were a colour it would be grey, where “white” means complete information and “black” no information at all: only such a “grey condition” allows the sentiment of trust which helps in bridging the

16 See Ludwig Wittgenstein, Philosophical Investigations (Basil Blackwell 1986, first published in German1953): “579. The feeling of confidence. How is this man‐ ifested in behaviour? - 580. An 'inner process stands in need of outward criteria. 581. An expectation is imbedded in a situation, from which it arises. The expecta‐ tion of an explosion may, for example, arise from a situation in which an explosion is to be expected. - 582. If someone whispers "It'll go off now", instead of saying "I expect the explosion any moment", still his words do not describe a feeling; al‐ though they and their tone may be a manifestation of his feeling”. 17 See Jacopo Domenicucci and Richard Holton, ‘Trust as a two-place relation’, in Paul Faulkner and Thomas Simpson, The Philosophy of Trust (Oxford University Press 2017), 149. See also Pierre Lauret, ‘Why (and how to) trust institutions. Hospitals, Schools and liberal Trust’ (2018) in Trusting Institutions, n°68, Rivista di Estetica, 41. On this point, see finally Michele Williams, ‘In Whom We Trust: Group Membership as an Affective Context for Trust Development’ (2001) The Academy of Management Review, Vol. 26, No. 3, 377. 18 On this point see St. Thomas Aquinas, Summa Theologiae Summa Theologiae, Vol. 21 “Fear and anger” question n. 45, 7: “Again, hope and trust seem to be identical; hence we call those who hope trusting, using the words trust and hope interchangeably. But trust like faith, surely belongs to a cognitive power. So also hope”; Daniel J. McAllister ‘Affect and Cognitive-based Trust as Foundations for Interpersonal Cooperation in Organizations’ (1995) Academy of Management Journal 38 (1), 24. See also J.L. Morrow Jr., Mark H. Hansen and Allison W. Pearson ‘The Cognitive and Affective Antecedents of General Trust within Coop‐ erative Organizations’ (2004) Journal of Managerial Issues, 16 (1), 48. See finally Lawrence C. Becker, ‘Trust as noncognitive security about motives’ (1996) Ethics, vol. 107, no. 1, 43 where he argues “for the importance for political philosophy of pursuing an inquiry into the more neglected of the two areas, the noncognitive one. In particular, […] for the importance of what I will call a sense of security about other people's benevolence, conscientiousness, and reciprocity”. 19 F. David Schoorman, Roger C. Mayer and James H. Davis, ‘An Integrative Model of Organizational Trust’ cit., 709-734 . Niklas Luhmann, Trust and Power (Polity Press 2017, first edition in German 1973) 50.

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knowledge gap (and in overcoming related sentiments of fear20), making acceptable the risk involved in acting. To a more in-depth examination, trust is a pervasive sentiment because it operates – in different forms and declinations - at every level of social life affecting human relationships21 in various kinds of social groups. In other terms, trust is the main component of social capital, strongly linked to cultures and communities.22 This pervasiveness also characterises trust relationships between people and systems23 in many kinds of regulated sectors, such as the banking system or financial regulation. Rather, due to increased social complexity24 trust has become ever more relevant in the functioning of the market25 and in the life of institutions, whatever they are, legal or illegal. In fact, trust is indispensable even for criminal associ‐ ation,26 because it constitutes a "motive for cooperation"27 the absence of

20 St. Thomas Aquinas, Summa Theologiae, Vol 21 “Fear and anger” question n. 45 (daring), 73: “[…] as Agustine says fear is anxious about security. Hence, the con‐ trary of fear is security and not daring”. 21 Niklas Luhmann, Trust and Power cit., 43. 22 On this point, see Francis Fukuyama, Trust: The Social Virtues and the Creation of Prosperity (The Free Press 1995) 23 Anthony Giddens, The Consequence of Modernity cit., 83: “Trustworthiness is of two sorts. There is that established between individuals who are well known to one another and who, on the basis of long-term acquaintance, have substantiated the credentials which render each reliable in the eyes of the other” and “the nature of modern institutions is deeply bound up with the mechanisms of trust in abstract systems, especially trust in expert systems”. 24 Niklas Luhmann, Trust and Power cit., 7. 25 Partha Dasgupta, ‘Trust as a commodity’, in Diego Gambetta (ed.) Trust. Making and breaking cooperative relations (Blackwell 1988) 49 onwards; on this point see also Gaetano Filangieri La scienza della legislazione (1780-1785). Benjamin Con‐ stant, Comento sulla scienza della legislazione I (IPZS 1984) 253, where he wrote that “la confidenza è l’anima del commercio” (“confidence is the soul of busi‐ ness”). 26 Augustin of Hippo, The City of God, IV-4: “Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on”. See also Adam Smith The theory of moral sentiments (1759) Section II, Chapter 3: “if there is any society among robbers and murderers, the must at least, according to the trite observation, abstain from robbing and murder‐ ing one another”. 27 Bernard Williams, ‘Formal Structures and Social Reality’, in Diego Gambetta (ed.) Trust: Making and Breaking Cooperative Relations cit., 3.

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which always determines a paralysis of cooperative behaviour.28 For this reason, trust – as we will see later (par. 2.2) – cannot be considered as nec‐ essarily synonymous with “good”: it depends on a case by case evaluation concerning who trusts whom, why and to what purpose. Obvious to say, the current Coronavirus pandemic is a trial by fire for public trust. Firstly, compliance and effectiveness of rules and public deci‐ sions about social distancing measures29 are strongly influenced by trust in institutions. Moreover, as emerged from recent debates and research, trust – “horizontal” or “vertical”30 – matter also from the point of view of Gov‐ ernments trusting the science and the experts31, of people trusting Govern‐ ments and experts,32 of Governments trusting people and the private sec‐ tor33 and of regulators who need to trust each other.34 Finally, trust is currently moving and highly unstable: recent surveys have demonstrated that in some cases it is increasing, in others it is de‐ creasing. For instance, in the US, hospitals are considered as deserving the

28 See Diego Gambetta, ‘Can We Trust Trust?’, in Diego Gambetta (ed.) Trust: Mak‐ ing and breaking cooperative relations cit., 213. 29 Nancy M. Baum, Peter D. Jacobson and Susan D. Goold, ‘‘Listen to the People’: Public Deliberation About Social Distancing Measures in a Pandemic’ (2009) The American Journal of Bioethics, Vol 9, issue 11, 4. See also European Centre for Disease Prevention and Control, Considerations relating to social distancing mea‐ sures in response to COVID-19 – second update, 23 March 2020. 30 Jason Stuart Maloy ‘Two Concepts of Trust’ (2009) The Journal of Politics, Vol. 71, No. 2, 492, 493, where “horizontal trust” is understood as trust “among citi‐ zens themselves” while “vertical trust” is “between citizens and Government”. 31 Tony Yates ‘Why is the government relying on nudge theory to fight coronavirus?’ in www.theguardian.com, 13 March 2020. 32 Tom Peck ‘Just a day after Johnson told us to keep calm, we’ve gone into selfimposed lockdown. Was that the plan all along?’ in www.independent.co.uk, 13 March 2020. 33 Edelman Trust Barometer Special Report on Covid-19, Trust and the Coronavirus, in www.edelman.com which “demonstrates essential role of the private sector”. See Rebecca M Bratspies ‘Regulatory Trust’ (2009) Arizona Law Review, Vol. 51, 575. 34 Elizabeth Golberg, ‘Regulatory Cooperation to Combat Public Health Crises’ (2020) The Regulatory Review, April 27, 2020, in https://www.theregreview.org/2 020/04/27/golberg-regulatory-cooperation-combat-public-health-crises/. See also Frédérique Six and Koen Verhoest (eds.) Trust in Regulatory Regimes (Edwar El‐ gar 2017).

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utmost confidence, where news media gets a more negative review;35 Ital‐ ians trust their national institutions today moreso than in the past, but lessso than in the European institutions;36 in France, people’s distrust is in‐ creasing and the Government is experiencing a crisis of confidence.37 The consequences of low levels of trust in government and media can be ob‐ served everywhere.38 2.2.2 An Evidence-Based Sentiment How can we distinguish trust from confidence? Do these closely related concepts each have their own specific scope? Scholars and academics have stressed the need to base the sentiment of trust on evidence. From this perspective, they have proposed a sort of graduation: faith, trust and confidence should be considered as “[…] a continuum of words connoting belief based on the degree to which they rest on evidence of the senses”.39 In other words, the wide and generic “di‐ mension of trust” constitutes a single “box” but represents a sort of um‐

35 Justin McCarthy, ‘Coronavirus Response: Hospitals Rated Best, News Media Worst’ which refers to the Approval Ratings of U.S. Leaders' and Institutions' Handling of Response to Coronavirus, March 25. 2020, in www.gallup.com. 36 Demopolis Italy in time of Covid19, 14-15 April 2020; on this point see Goran Do‐ minioni, Alberto Quintavalla and Alessandro Romano, ‘Trust spillovers among na‐ tional and European institutions’ (2020) in European Union Politics, Vol. 21, issue 2, 276. 37 Matthieu Goar ‘Le gouvernement français a peut-être déjà perdu la bataille de la confiance’ (18 April 2020) in Le Monde. 38 Edelman Trust Barometer 2020, Special Report: Trust and the Coronavirus, where “consequences of low trust in government and media” have been observed, for in‐ stance “large groups of people have ignored critical health guidance, in part be‐ cause they doubted the veracity of available information or because they relied on disinformation. At the same time, a number of businesses have stepped into the void with responsible actions and information from credible sources, including scientists and public health authorities, knowing that their employees expect fre‐ quent updates and agile changes to workplace policies”. See also Laurent Jaffro, ‘Interactions en ligne et concept de confiance’, in Milad Doueihi and Jacopo Domenicucci (Eds.), La confiance à l'ère numérique (Berger Levrault & éditions Rue d’Ulm 2018) 33. 39 Keith Hart, ‘Kinship, Contract, and Trust: The Economic Organization of Mi‐ grants in an African City Slum’, in Diego Gambetta (ed.) Trust: Making and breaking cooperative relations cit., 176.

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brella concept by grouping at least three different meanings: “faith re‐ quires no evidence; trust is an expectation based on inconclusive evidence […] tolerant of uncertainty or risk; confidence is a strong conviction based on substantial evidence or logical deduction”.40 This distinction remains open to many criticisms: for instance, it does not adequately take into consideration the debate on the reasonableness of faith41 or that on the progressive personalization of contemporary politics (which seems to express a tendency towards personal trust instead of that towards confidence in systems42). Overall, the distinction between trust and confidence does not adequately take into consideration the importance of “animal spirits”: confidence is not a pure rational prediction, rather “the very meaning of trust is that we go beyond the rational”43 or, as affirmed, “trust begins where prediction end”.44

40 Ibid.: “To believe in is to have faith, trust, or confidence in someone or something. Faith and confidence both come from Latin fides, which is the nearest thing to the Germanic trust. Since the Middle Ages, faith has replaced belief as the strongest word for trust placed in a person or thing”. 41 The literature on faith and reason is huge, especially in Christian philosophy and theology. In this context, it suffices to refer to Blaise Pascal, Thoughts (Collier & Sons 1909, original French edition 1670) and to Hans Urs von Balthasar, Love alone is credible (Ignatius Press 2004, original German edition 1963). From a his‐ torical perspective, see literature about reliability of the Gospels as historical docu‐ ments, Vincent Henry Stanton, The Gospels as Historical Documents, III volumes (Cambridge University Press 1903) and Anthony Maas ‘Early Historical Docu‐ ments on Jesus Christ’ in The Catholic Encyclopedia (Robert Appleton Company 1910). See finally Jürgen Habermas, ‘Religion in the public sphere’ (2006), Euro‐ pean Journal of Philosophy, 14, 1, 1, 20. 42 Ian McAllister, ‘The personalization of Politics’, in Russel J. Dalton and Hans-Di‐ eter Klingemann The Oxford Handbook of Political Behaviour (Oxford University Press 2007) 571: “In a trend that has been shared by all of the liberal democracies, politics has become increasingly personalized […] The popular focus on leaders now appears commonplace across almost all of of the major parliamentary sys‐ tems, where parties once occupied center stage”. 43 George A. Akerlof, Robert J. Shiller, Animal Spirits: How Human Psychology Drives the Economy, and Why It Matters for Global Capitalism (Princeton Univer‐ sity Press 2009) 12. See also Thierry Devos, Dario Spini, Shalom H. Schwartz, ‘Conflicts among Human Values and Trust in Institutions’ (2002) British Journal of Social Psychology, 41, 481. 44 J. David Lewis and Andrew Weigert, ‘Trust as a Social Reality’ (1985) Social Forces, Vol. 63, No. 4, (Jun., 1985), 967, 976.

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2.2.3 Confidence and Trust: Decisional Aspects Scholars and academics have stressed another aspect regarding trust and confidence: the decision to believe. In managerial literature trust would consist in a strategic decision45 which implies - in the framework of personal relationships - the possibility to choose and (as a consequence) the eventual internal regret for the trust‐ ing choice. On the other hand, confidence would increase in the frame‐ work of systemic relationships, when “you do not consider alternatives (every morning you leave the house without a weapon!)”46 and when “giv‐ en the constraints of the situation, the relationships we engage in depend or are seen to depend very little on our actions and decisions”.47 If there is no possibility to choose, eventual disappointment will necessarily be ex‐ ternalised. Let us give an example, in this regard. Personal trust characterises the relationship I have with a financial advisor, who takes care of my financial investments: I trust him/her as a competent and reliable person; if he/she takes advantage from my trust or if he/she gives me the wrong advice, I can be disappointed in myself, for my decision to believe in him/her. Con‐ fidence, indeed, characterises the relationship I have with the banking sys‐ tem: I am confident that it is a reliable system and also that it is managed by expert people; if mistakes happen in some banking operations or if a bank failure occurs to my detriment, disappointment will be external, in the system. In other words, “confidence [is] in the system and trust [is] in partners”, even though in any case, these “different attitudes with respect to alterna‐ tives […] may influence each other”.48

45 Eric M. Uslaner, The Moral Foundations of Trust (Cambridge University Press 2002) 11, where he defines “strategic trust” as trust “knowledge-based”. 46 Niklas Luhmann Trust and Power cit., 97. 47 Diego Gambetta, ‘Can We Trust Trust?’, in Diego Gambetta (ed.), Trust: Making and breaking cooperative relations cit., 224. 48 Niklas Luhmann, Trust and Power cit., 99.

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2.3 Confidence as Output of Controls Some contributions have highlighted a further link, which is no less rele‐ vant: the link between confidence and controls. Not only could evidencebased trust be conducive to confidence but so could an effective system of controls,49 in which cooperation is ensured by coercive means, such as sanctions. The dual-path approach to confidence (evidence-based trust and controls) is simple to understand as it is very strictly related to ordi‐ nary people’s daily experience. For instance, even though I have no trust in my sister as a good driver, nonetheless I am confident that she will park legally in the city centre because otherwise (thanks to strict controls) she will be surely fined. In other words, confidence based on controls can be explained in terms of systems which provide sufficient and effective in‐ centives to behave according to rules. Even though trust could be considered to be an alternative to control‐ ling50 and coercion to be a way to substitute trust,51 after deeper analysis the question is not so simple as it appears at a first glance. Such alternativity, in fact, is limited because legal systems cannot be exclusively on controls. The two ways to achieve confidence in systems (trust and control) are not alternatives because institutions work only through a combination of them (“carrots and sticks”52). In fact, on the one hand, there is large agreement on the idea that overly strong systems of control will inhibit trust and that in the long run they will produce a greater number of infringements. On the other hand, there is also large agreement on the idea that trust without controls will inevitably produce infringements and noncompliance. Moreover, not all possible combinations of trust and controls will pro‐ duce optimal results: institutions, in fact, should accurately choose cases

49 Vladimir I. Lenin, Collected Works, Vol. 20 (December 1913 –- August 1914) Ad‐ venturism (Progress Publishers 1964, third printing 1977) 356: “Put no faith in words; subject everything to the closest scrutiny — such is the motto of the Marx‐ ist workers”. 50 Partha Dasgupta, ‘Trust as a commodity’, in Diego Gambetta (ed.), Trust: Making and breaking cooperative relations cit., 66. 51 Diego Gambetta, ‘Can We Trust Trust?’, in Diego Gambetta (ed.), Trust: Making and breaking cooperative relations cit., 220. 52 Giuseppe Dari-Mattiacci and Gerrit De Geest, ‘The Rise of Carrots and the De‐ cline of Sticks’ (2013) University of Chicago Law Review, Vol. 80, No. 1, 341, 346.

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where it is preferable to establish controls, and cases where it is better to promote trust, by enhancing cognitive and behavioural insights which give empirical evidence to upstream incentive/disincentive policies. Let us consider, for instance, the social distancing measures in the cur‐ rent pandemic: even though there are different formulas in different coun‐ tries, self-restriction of free movements and self-quarantine (Governments trust people) go hand in hand with various kinds of controls (Governments do not fully trust people), such as police activity, smart-phone tracking, use of drones. Many problems arise, especially regarding the balance be‐ tween the protection of fundamental rights (e.g. personal data protection) and the need for effective measures. Country by country, this balance has been based on different degrees of trust, from the full confidence of the Swedish Government in social norms to the terrible reaction of Nigerian security forces who killed 18 people while enforcing their Coronavirus lockdown. Trust (and the effective results of trusting policies) may influ‐ ence future trust in institutions in each country in a way which is not com‐ pletely predictable at the moment. 3. Confidence as Institutional Determinant According to this outline, no system works without a minimum amount of trust combined with a minimum amount of controls. Rather, trust has been considered an increasingly important form of organization: alongside hier‐ archy (relied on authority) and market (relied on price), community is based on trust which “has uniquely effective properties for the coordina‐ tion of knowledge intensive activities within and between organiza‐ tions”.53 However, when both trust is poor and controls are not wholly effective, there could be a crisis, in the sense that it is more and more difficult to

53 Paul S. Adler, ‘Market, Hierarchy, and Trust: The Knowledge Economy and the Future of Capitalism’ (2001), in Organization Science, Vol. 12, No. 2, 215-216: “In outline, the argument is, first, that alongside the market ideal-typical form of organization which relies on the price mechanism, and the hierarchy form which relies on authority, there is a third form, the community form which relies on trust. Empirically observed arrangements typically embody a mix of the three ideal-typi‐ cal organization forms and rely on a corresponding mix of price, hierarchy, and trust mechanisms”.

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adopt decisions in the presence of risk:54 this is true in human relations, in social dynamics, in the market, as well as in institutions. The public debate regarding trust in the specific institutional perspec‐ tive has been oriented in two directions of investigation: “the importance of institutions for trust [and] the importance of trust for institutions”.55 The first perspective (institutions for trust) looks at institutions as being capable of producing and protecting trust. Institutions, in fact, are generat‐ ed by collective and reciprocal trust and in turn they provide conditions for trust which are indispensable not only for cooperation but also for competition, both in the market and in political competition, such as when they ensure elections’ legitimacy, judicial protection of property in case of litigation or when they regulate public utilities by establishing and check‐ ing quality and consumer protection standards. Moreover, this perspective also includes institutions as being capable of scrutinizing trust in order to verify if underlying interests effectively deserve protection.56 For instance, there is no doubt that strong trust characterises agreements among private individual interests when they carry out illicit infringements such as car‐ tels or other monopolization infringements in antitrust law:57 in these cas‐ es, institutions operate against trust as private fact by prosecuting and sanctioning any possible illicit and infringement. However, in so doing they intend to provide protection for trust as general and public value.58 The second perspective (trust for institutions)59 means that “[…] insti‐ tutions (e.g. democratic institutions, healthcare systems, banks) need pub‐ lic trust to function properly” and that mere compliance when ensured through coercion is not always enough:60 it could suffice, in this regard, to

54 On this aspect, see Niklas Luhmann , Trust and Power cit., 124 onwards. 55 Jacopo Domenicucci, ‘Trusting Institutions’ (2018) in Rivista di estetica, n. 68, 3. 56 Diego Gambetta ‘Can We Trust Trust?’, in D. Gambetta (ed. by), Trust and Power cit., 214: “a priori, we cannot always say whether greater trust and cooperation are in fact desirable”. 57 Wayne D. Collins ‘Trusts and the Origins of Antitrust Legislation’ (2013) 81 For. dham Law Review, 2279. 58 For a related but different perspective, see Annette Baier, ‘Trust and Antitrust’ (1986) in Ethics, Vol. 96, No. 2, 231. 59 Jacopo Domenicucci, ‘Trusting Institutions’cit., 3, where he talks about “trust-re‐ lated conditions for institutions”. 60 Ibid.

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The Crisis of Confidence in Legislation: an Overview

mention the hot topic of vaccination for trust in health care systems61 or, once again, the current coronavirus pandemic for trust both in national Governments, in European institutions, in international organizations, in health care systems, in the media and so on. This perspective is the reference framework of barometers and indexes, such as the Eurobarometer (Trust in National and International Institu‐ tions),62 the Edelman Trust Barometer63 and the U.S. Gallup Confidence in Institutions Index.64 Trust related to institutional performance are, final‐ ly, considered by Reports such as the World Bank Doing Business and the World Economic Forum Global Competitiveness Report.65

61 World Health Organization, Vaccination and Trust (2017). See also E Lalumera ‘Trust in health care and vaccine hesitancy’ (2018) in Rivista di estetica, n. 68, 105. 62 The Standard Eurobarometer was established in 1974. Each survey consists of ap‐ proximately 1000 face-to-face interviews per country. See Eurobarometer 92, Au‐ tumn 2019. Public opinion in the European Union (November 2019), especially 5, where there is the analysis of European and political Institutions, with reference to “trust in national governments and parliaments and in the European Union: trend” and 6, with reference to “trust in the European Union: national results and evolu‐ tions”. 63 See https://www.edelman.com/20yearsoftrust/: “In the mid-1990s Francis Fukuya‐ ma’s influential book Trust: The Social Virtues and the Creation of Prosperity (Si‐ mon & Schuster 1996) laid the foundation for studies of societal trust and in‐ formed the creation of the Edelman Trust Barometer […] Throughout 20 years of studying how trust is won, violated and lost, we have learned that the two essential elements of trust are effectiveness and ethical conduct. […] The initial study polled opinion shapers in the U.S., U.K., France, Germany, and Australia on their trust in NGOs relative to media, government and business. We were stunned to learn that NGOs were the most trusted institution in the world (now no longer the case), a clear sign of discontent with the effectiveness of traditional leader‐ ship”. 64 https://news.gallup.com/poll/1597/confidence-institutions.aspx. 65 See World Economic Forum, Global Competitiveness Report 2012-2013, where institutions are indicated as the «first pillar of competitiveness». See also World Bank Doing Business 2019, 22: “The design of the Doing Business indicators has been informed by theoretical insights gleaned from extensive research and the lit‐ erature on the role of institutions in enabling economic development”. On this point see also Kenneth J. Arrow, ‘Gifts and Exchanges’ (1972) Philosophy and Public Affairs, 1, 4, 343, 345, where he affirms that “the process of exchange re‐ quires or at least is greatly facilitated by the presence of several of these virtues (not only truth, but also trust, loyalty, and justice in future dealings”.

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What is it that makes institutions trustworthy?66 Even though a re‐ sponse would deserve a much more articulated response, management lit‐ erature has analysed the notion of trust as related to a condition of vulnera‐ bility (due to some kind of risk) and to a state of interdependence, identi‐ fying factors which may influence the presence and the level of trust in in‐ stitutions.67 First of all, trust is influenced by expertise: institutions should be ex‐ pected to act in a competent, expert and rational (at least reasonable) way to effectively manage situations of risk. Secondly, trust is related to benev‐ olence: benevolent institutions should not be understood as institutions which will carry out in any situation one’s own personal interest, rather as accountable institutions which will not operate against it without valid rea‐ sons and without giving reasons. Thirdly, trust follows integrity: this is the character of institutions which adopt and perform fair procedures, acting in a transparent, impartial and consistent way. All these factors may be subjectively experienced, for instance during administrative procedures (as when people apply for a license) or during controls and inspections. How people are treated by institutions on these occasions is of great importance: interaction with authorities should be in‐ formed by procedural justice, relevant for the decision to comply and for confidence.68 Alongside these three relevant factors, scholars and academics have mentioned other emerging aspects which may influence trust in institu‐ tions, for instance affects and emotions69, reciprocity, credibility, “encap‐ sulated interest” (in which trust would be grounded),70 and so on.

66 Onora O'Neill, A Question of Trust: The BBC Reith Lectures 2002 cit., 8. 67 F. David Schoorman, Roger C. Mayer and James H. Davis ‘An Integrative Model of Organizational Trust: Past. Present and Future cit., 345. On this point, see Oecd, Statistics and data Directorate, Trust and its determinants: Evidence from the Trustlab experiment, Working Paper No.89, 25 June 2018. 68 On “procedural injustice” as source of noncompliance see John Braithwaite, Im‐ proving Compliance: Strategies and Practical Applications in OECD Countries (OECD 1993) 9. See also Tom R. Tyler, 'Procedural Justice, Legitimacy, and the Effective Rule of Law' (2003) Crime and Justice, Vol. 30, 283. 69 F. David Schoorman, Roger C. Mayer and James H. Davis ‘An Integrative Model of Organizational Trust: Past. Present and Future cit., 348. On this aspect see also Karen Jones, ‘Trust as an Affective Attitude’ (1996) Ethics, Vol. 107, No. 1, 4. 70 Russell Hardin, Trust and Trustworthiness (Russel Sage 2002) 88: “in the encapsu‐ lated-interest account, it is the reason for the expectation that define trust. If I ex‐

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The Crisis of Confidence in Legislation: an Overview

4. Confidence as a Pillar of Effective Legislation and Regulation Confidence is considered crucial for effectiveness of legislation and regu‐ lation because it is normally associated with a higher degree of compliant behaviour by citizens, businesses and even public officers in charge of im‐ plementation.71 This is the reason why confidence – both trust or control based – constitutes nowadays a major institutional goal in order to im‐ prove institutions’ legitimacy, to increase effectiveness of rules and to re‐ duce costs associated to legislation and regulation, whatever their nature (for implementing and enforcing as well as for litigation). However, scholars understand legislation in a broader sense, i.e. includ‐ ing regulation. In this perspective, legislation would cover both “primary and secondary legislation”:72 Statute law enacted by Parliament adopted following a procedure which has been completely developed inside the Parliament; sources of law enacted together by the Parliament and the Government; EU legislation; legislation adopted by other levels of Gov‐ ernment (for instance, Länder or Regions); Government, non-primary regulation. Furthermore, the problem of confidence regards regulation adopted by independent authorities although they present quite different aspects from that of strict legislation, such as the non-majoritarian character of IA. Moreover, what does it mean to have confidence in legislation (and regulation)? There are at least two different levels: confidence in legisla‐ tors (and regulators), which implies personal trust (or distrust) in their ex‐ pertise, benevolence and integrity (but also in “encapsulated interest”); and confidence in the system of legislation (and regulation) as a whole, which implies a person-to-system trust (or distrust) in effectiveness of es‐ tablished incentives, not only looking at what Parliaments, Governments or independent regulators produce (pieces of legislation or regulation) but also looking to what administrative and independent authorities in charge

pect you to fulfill my trust because I think you encapsulate my interest to some extent in your own, than I can be said to trust you”. 71 See, for example, European Commission Communication on Improving the deliv‐ ery of benefits from EU environment measures: building confidence through better knowledge and responsiveness (2012) IP/12/220. 72 Ulrich Karpen, ‘Introduction’, in Ulrich Karpen and Helen Xantaki (eds.), Legisla‐ tion and Legisprudence in Europe. A Comprehensive Guide (Hart Publishing 2017) 2.

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to implement and enforce legislation and regulation have done. Rules (both in a piece of legislation and in any kind of regulation) used to be er‐ roneously considered in their exclusive written and verbal dimension while they are expected to have a concrete, almost “material” outcome: implemented, if necessary enforced and conducive to results consistent (or at least not so inconsistent) with regulatory objectives. Let us consider a smoking-ban in a restaurant, clearly indicated by a signboard, visible and understandable.73 However, it is more likely that people will behave according to it if they find confirmations of the norma‐ tive, verbal message such as: nobody is smoking (social imitation factors); if someone starts smoking others react (social stigma); the restaurant man‐ ager (or other person in charge) complains about possible smokers (fear of sanctions). In other words, citizens and businesses need: effective legisla‐ tion; to consider facts and not only words; to look to results and not to mere words, however solemnly declared in legislative acts or in regu‐ lation. In fact, after legislation has been adopted, implementation and enforce‐ ment work, more or less, as a form of non-verbal communication74 influ‐ encing trust more than express words. If "law sends messages",75 mes‐ sages are two:76 the first comes from the formulation of the rule77 (which establishes consequences for specific non-compliant behaviours); the sec‐ ond comes from effective implementation and enforcement, and can be consistent or not with the first (for instance, because established penalties

73 On communication as “a vital prerequisite to impact” see Lawrence M. Friedman, Impact. How Law Affects Behaviour (Harvard University Press 2016) 33. See also Maria Mousmouti, Designing effective legislation (Edwar Elgar 2019) 48. See, fi‐ nally, Lennart Wittberg, ‘Can Communication Activities Improve Compliance?’ in Wim Huisman, Henk Elffers and Peter Verboon (eds.) Managing and maintaining compliance. Closing the gap between science and practice (Boom Legal Publish‐ ers 2006) 25. 74 On this point see Albert Mehrabian, Non verbal Communication (Aldine Transac‐ tion 1972). 75 See Avana Eisenberg, 'Expressive Enforcement' (2014) UCLA Law Review, 61, 858, 860. See also Lawrence Lessig, 'The Regulation of Social Meaning' (1995) University of Chicago Law Review, 62, 943. 76 See Roscoe Pound, 'Law in books and law in action' (1910) American Law Re‐ view, 44, 12. 77 See William Twining and David Miers, How to Do Things with Rules (Cambridge University Press 2010, first published 1976) 90.

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have/have not been imposed)78 and this influences the credibility of and the trust in government.79 5. Confidence in Legislation and Its Crisis Developing general theory discourse on confidence in legislation – in the wide sense we have already indicated – is not simple because every indi‐ vidual rule moves sentiments as well as cold calculation, ensures legitima‐ cy without avoiding corruption, could promote cooperation as well as con‐ flict. Throughout history, a sort of Lego-scepticism, a sceptical approach to‐ wards legislation, has constantly been present: from Tacitus80 and Saint Paul the Apostle,81 it has always been clear that legislation (despite being indispensable for social life) is not in all cases and always good, nor does it in all cases and always produces good results: it is not valid once and forever.82 As a consequence, confidence would depend on case by case 78 See Arnold J. Meltsner, Policy Analysts in the Bureaucracy (University of Califor‐ nia Press 1976) 255: “Effective communication can lead to promotion or demo‐ tion, to acceptance or rejection of one’s ideas, to success or failure”. See also Her‐ bert E. Alexander, ‘Communication and Politics: the Media and the Message’ (1969) Law and Contemporary Problems, 255, 256: “Voice alone is not enough for effective communication. Muscle as well as voice is needed”. 79 On this point see Robert Nozick, ‘Coercion', in Sidney Morgenbesser, Patrick Sup‐ pes and Morton White (eds.) Philosophy, Science, and Method. Essays in Honor of Ernest Nagel (St. Martin’s Press 1969) 440. 80 Tacitus, Annales, Book 3, 27 where he talks about “plurimae leges corruptissima re publica”. 81 Saint Paul, Letter to the Romans, ch. 7, where he developed his doctrine on law and sin. 82 In the Middle Ages, in Italian communes, statutarii (or correctores or emenda‐ tores) were charged with the task of updating, reviewing, correcting and making coherent legislation. On this issue, see Francesco Calasso, Medioevo del diritto—I. Le fonti (Giuffrè 1954) 424. See also Lawrin Armstrong and Julius Kirshner, The Politics of Law in Late Medieval and Renaissance Italy (University of Toronto Press 2011) 79. On this point see also Nick Manning and Deborah L. Wetzel, ‘The Tales of the Unexpected: Rebuilding Trust in Governments’ in Otaviano Canuto and Marcelo M. Giugale (eds.) The Day After Tomorrow: A Handbook on the Fu‐ ture of Economic Policy in the developing word (The World Bank 2010) 166: “There are good reasons to assume that the balance between trust and skepticism is in a permanent flux”, quoting Jeff R. Clark, Dwight R. Lee, ‘The Optimal Trust in Government’ (2001) Eastern Economic Journal, 27, 19.

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evaluations. However, at a certain time, as an unprecedented fact, a sort of irrational trust in legislation as the perfect “box” for rationality has emerged, contributing to generate the genuine legolatry,83 a blind trust in legislation which characterised the Enlightenment period and afterwards. Nonetheless this blind trust has nowadays lost its theoretical power84, it still continues to influence the public debate, although with a different ra‐ tionale. Indeed, legislation has more recently been used as a perfect tool for political communication,85 a simple and marketable “short run” prod‐ uct for politicians who habitually refer to legislation as if it were “the solu‐ tion for problems”, shifting public opinion from focusing on the real im‐ pact of rules.

83 The expression ‘legolatria’ has been used by Paolo Grossi, L’Europa del diritto (Laterza 2007) 134; see also Paolo Grossi, A History of European Law (Blackwell Publishing 2010). 84 On this point, see historically José Esteve Pardo, ‘Antiparliamentary Thought and Crisis of Confidence in Legislation. A Historical Approach’, in this book. See John Rawls, A Theory of Justice (The Belknap Press of Harvard University Press 1999, first edition 1971) 315: “The benefits from discussion lie in the fact that even representative legislators are limited in knowledge and the ability to reason”. The issue has also been developed by Friedrich von Hayek, The Counter-revolu‐ tion of Science. Studies on the Abuse of Reason (The Free Press 1952). Regarding the aspect that the consequences of behaviour depend (in part) on what other indi‐ viduals might choose see Gerald P. O’Driscoll and Mario J. Rizzo, ‘Introduction’ (n 58), The Economics of Time and Ignorance (Routledge 1996). Regarding the fallibilist perspective that should be adopted by regulators Karl Popper, The Open Society and Its Enemies, vol II (Routledge & Kegan Paul 1945) addendum: ‘Every discovery of a mistake constitutes a real advance in our knowledge.’ See also Ralf Dahrendorf, ‘Economic Opportunity, Civil Society, and Political Liberty’ (1996) Development and Change, 27(2), 229. 85 See Giuseppe Cammarota and Giovanni Piccirilli ‘Political communication and ef‐ fectiveness of legislation. Challenges to the certainty of law beyond the law in the books’ in Luzius Mader and Marta Tavares De Almeida (eds.) Quality of Legisla‐ tion, Principles and Instruments - Proceedings of the Ninth Congress of the Euro‐ pean Association of Legislation (IAL) in Lisbon, 24/25 June, 2010 (Nomos 2011), 288. On legislation as a means for communication see Helen Xanthaki, ‘Legisla‐ tion as a tool for trust and confidence in the European Union’, in this book. On the specific aspect of decreasing trust and increasing populism see Cary Coglianese, ’Law as Scapegoat’, in this book.

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5.1 Reasons Current times are characterised by the presence of sentiments other than trust and confidence, when talking about legislation and regulation. While some authors have tried to explain the “long term decline in trust in Gov‐ ernment in the OECD”,86 let us summarize these sentiments by adopting a pathological reading. First of all, legislators and regulators seem to be affected by legoaholi‐ cism, i.e. the hectic recourse to legislation and regulation as the ordinary way to manage problems which could be solved in another way. Many factors have contributed to produce legislative inflation and overregula‐ tion: pressure from interests groups; public intervention in social, fiscal and economic regulated sectors; and multi-level governance both at subna‐ tional and at European level (or at State and Federal level in the U.S. or elsewhere). However, as in every inflationary trend, the greater the quanti‐ ty of rules, the lower their quality, and legoaholicism walks hand-in-hand with legislative and regulatory ineffectiveness. Secondly, legotechnicism is made indispensable by the “inextricable forest” of rules. This idea centres on the primacy of expertise and interme‐ diations which empowers the role of consultants and advisors as “guides” in the forest but, at the same time, which break the relationship between citizens and firms (on one side) and institutions (on the other side). Finally, citizens and firms fluctuate between different and often con‐ flicting positions: on one side, legopportunism, which prioritises profitmaking (or cost-minimizing) via rules, exploiting all opportunities offered by innumerable combinations of legal provisions, carrying out creative compliance;87 on the other side, legophobia, because the lives of citizens and businesses are oppressed by rules which “touch” every field of daily life. A French scholar spoke of a birth rate of legislation which is not bal‐ anced by a corresponding mortality rate,88 provoking a “social indiges‐

86 Nick Manning and Deborah L. Wetzel, ‘The Tales of the Unexpected: Rebuiding Trust in Governments’ cit., 169. 87 In creative compliance people circumvent the scope of a rule, and breach its spirit in order to achieve desired results, without breaking the formal terms of the rule, see Robert Baldwin, Martin Cave and Martin Lodge, Understanding Regulation. Theories, Strategies and Practice (2nd edn, Oxford University Press 2012) 232. 88 René Savatier ‘L’inflation législative et l’indigestion du corps social’ (1977) in Il Foro italiano, V, col. 175.

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tion” (“l’indigestion du corps social”) as an impossibility to assimilate this surplus.89 In brief, the central question presents the features of a paradox: rules are considered a surrogate for trust,90 so “when trust is not, rules shall be”.91 However, the reverse statement (“when rules are, trust shall not be”) is not equally and always valid: trust may or may not be, it depends on the quantity, the quality and the effectiveness of rules. The current crisis of confidence in legislation and regulation has great impact on cooperation, on institutional legitimacy92 and on the efficiency of the institutional system as a whole. According to the mentioned dualpath approach (par. 2.1), this crisis may originate both from a crisis of trust and from a crisis of controls. When talking about a crisis of trust, we mean firstly personal trust, i.e. citizens’ expectations regarding politicians and public officers’ expertise, benevolence and integrity.93 Personal trust is nowadays menaced by recur‐ rent incidents of corruption, which occur at political as well as at adminis‐ trative level: while it is difficult to detect and quantify real corruption, the crisis of personal trust is clearly confirmed at country level, for instance by the Corruption Perception Index.94 Trust in the system of legislation and regulation has been progressively weakened too: among other rea‐ sons, because legislation and regulation have often produced, all over the world, undesired effects resulting in regulatory failures. At the same time rules often oppress citizens and firms which would otherwise comply, re‐ ward opportunism and creative compliance, and are largely ineffective in protecting deserving interests as well as in fighting infringements and transgressions. When talking about a crisis of controls, we mean a crisis of tools for ensuring compliance with rules and to ensure confidence in legislation:

89 90 91 92

Ibid., col. 181. Mark E. Warren, Democracy and trust cit., 266. Ibid., 265. Ibid., 350. See Egle Basyte Ferrari et al., ’Opening and improving policy develop‐ ment to increase public trust: transparency of evidence-based regulation in the de‐ bate on EU Better Regulation Agenda’, in this book. 93 Niklas Luhmann Trust and Power cit., 99 where confidence and trust are described as “different modes of asserting expectations”. 94 The Transparency International Annual Report is based on a Corruption Percep‐ tion Index. On this point, see Benjamin A. Olken, ‘Corruption Perceptions vs. Corruption Reality’ (2009) Journal of Public Economics, Vol. 93, No. 7-8, 950.

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they are ever less effective and ever more expensive.95 Furthermore, they also express a hybrid nature because – rather than ensuring compliance with rules – they are often occasions for infringing them resulting in cor‐ ruption.96 For this reason, there is a strong demand for more effective con‐ trols, with special regard to inspections, at country, European and global level,97 the need to improve cooperative approaches during enforcement and to strengthen confidence in enforcement officers. 5.2 Responsibilities Literature on the decline of trust in Government has enumerated several possible explanations. It identifies factors depending on officials (who “may be becoming more untrustworthy”98), on citizens (who “are becom‐ ing more sophisticated and levelling higher expectations on officials” or who “are becoming more cynical because their expectations have in‐ creased without a corresponding increase in the trustworthiness of offi‐ cials”99), on institutional norms (which are “increasingly opaque [and] conflicted”100) and on information “about officials’ interests and perfor‐ mance” (which is “increasingly complex, scarce or otherwise inaccessi‐ ble”101). While it is difficult to define who is responsible for this crisis of confi‐ dence and while it is not reasonable to simply blame a scapegoat, it is pos‐ sible to firstly analyse some significant aspects and enumerate several ac‐ tors on stage. Although each of them, for their own part, has probably con‐

95 Lloyd H. Strickland, ‘Surveillance and trust’ (1958), Journal of personality, 26, issue 2, 200, 201: interaction between supervisors and subordinates is condi‐ tioned by previous supervisory behavior and influences the opportunity to “ob‐ tain relevant information concerning [the] unsupervised work efforts”. 96 See Maria De Benedetto, ‘Corruption and controls’ (2015), European Journal of Law Reform, issue 4, 479, 488. 97 See John Braithwaite, Improving Compliance: Strategies and Practical Applica‐ tions in OECD Countries (OECD 1993) 9. See also Tom R. Tyler, 'Procedural Justice, Legitimacy, and the Effective Rule of Law' (2003) Crime and Justice, Vol. 30, 283. 98 Mark E. Warren, Democracy and trust cit., 350. 99 Ibid. 100 Ibid. 101 Ibid.

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tributed to generating such a decline of confidence, conversely each of them could make a contribution towards restoring it. These general considerations apply to a number of institutional actors Firstly, Parliaments.102 Systemic trust in Parliaments can be viewed from two different perspectives: the perspective of elected legislators and that of the professional drafters. Politicians and bureaucrats (even such specialized bureaucrats as parliamentary officers) have diverse structures of incentives.103 However, the goal of politicians for re-election generates a tendency to prefer legislation which expresses more remunerative pol‐ icies, such as the concentrated-benefits and diffuse cost policies which en‐ sure gratitude from groups of interests (i.e. lobbies) without stimulating general reactions in the public opinion: in fact, widespread costs of these policies are not fully perceived by citizens.104 Distribution of costs follow‐ ing a piece of legislation is highly significant for political consensusbuilding and in order to make concrete transparency in the legislative pro‐ cess, in this way affecting credibility and trust. Moreover, parliamentary legislation is expected to be good quality; provided by impact assessment and consultations; followed by monitoring and ex post evaluation in order to make sure that legislative objectives have been achieved. On the other hand, quality of parliamentary legislation is not simple to achieve. Similar comments can be made of Governments and other regulators (such as in‐ dependent authorities) in any kind of rule-making processes. Regarding Governments as Executive, the main problem is once again that legislation implies and needs implementation, enforcement and out‐ come consistent with regulatory objectives because it is still law without

102 Pedro C. Magalhães, ‘Confidence in Parliaments: Performance, Representation, and Accountability’, in Mariano Torcal and José Ramón Montero Political Disaf‐ fection in Contemporary Democracies. Social Capital, Institutions and Politics (Routledge 2006) 190 ; see also Tom Van der Meer, ‘In what we trust? A multilevel study into trust in parliament as an evaluation of state characteristics’ (2010) International Review of Administrative Sciences 76(3), 517. 103 On this topic, see Alberto Alesina and Guido Tabellini, ‘Bureaucrats or Politi‐ cians? Part I: A Single Policy Task’ (2007), The American Economic Review, 97, 169 and Alberto Alesina and Guido Tabellini, Bureaucrats or Politicians? Part II: Multiple Policy Tasks (2008), Journal of Public Economics, 92, 426. 104 Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard University Press 1971); see also Gunnar Trumbull, Strength in numbers: the political power of weak interests (Harvard University Press 2012).

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The Crisis of Confidence in Legislation: an Overview

facts, and facts are crucial for credibility and trust.105 For this reason, in the same way as Parliaments, Public administrations and enforcement agencies are at the centre of the institutional problem of trust. Their re‐ sponsibility, however, is destined to be strongly influenced by the legis‐ lative framework, in a sort of vicious circle: for instance, when legislation establishes inadequate resources to implement and enforce, administrative bodies in charge of implementation and enforcement can adopt only for‐ mal activities (or even administrative tolerance106) without being consid‐ ered fully responsible. The presence and the relevance of groups of interest in the legislative process affects trust and credibility of legislation, both from the perspec‐ tive of representing all interests involved in the law-making (and rulemaking) processes as well as from the perspective of their having been correctly accommodated at the end of these processes. Interest groups ex‐ ist to influence public decision-making in order to achieve the most favourable rules: for this reason, in countries where there is no regulation of lobbying, there are many proposals to establish Registers of other forms of public control on lobbies.107 However, registers cannot in themselves solve the problem of adequate representation of interests in law-making (and rule-making) nor the question of their due accommodation. A register cannot preserve legislation by improper influence108 as demonstrated by many political scandals, such as in the European Parliament “cash for

105 See Karl Olivecrona Law as fact (Oxford University Press 1939). 106 François Rangeon, ‘Réflexions sur l’effectivité du droit’, in Curapp, Les usages sociaux du droit, Colloque, Amiens, 12 May 1989 (Presses Universitaire de France1989) Vol. 1, 142. 107 See Kristina Grosek and Eulalia Claros, Regulation of lobbying across the EU at a glance (EPRS-European Parliamentary Research Service 2016). 108 See Janina Berg and Daniel Freund, EU legislative footprint: What's the real in‐ fluence of lobbying? (Transparency International EU 2016). See also the proposal European Parliament, Committee on Constitutional Affairs, Motion for a Euro‐ pean Parliament Resolution, Draft Report, Transparency, Accountability and In‐ tegrity in the EU institutions 2015/2041(INI), 18 March 2015, 3: “Introducing a legislative footprint, making registration by the lobby as mandatory as possible” and suggesting that “this legislative footprint should consist of a form annexed to reports, detailing all the lobbyists with whom those in charge of particular file have met in the process of drawing up each report and a second document listing all written input received”. See finally, Sunlight Foundation, International Lobbying Disclosure Guidelines (2015), in particular, part II, where are described “what data needs to be disclosed”, listing: “Information about organizations that

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Maria De Benedetto

laws” scandal.109 Transparency in the process is needed more on “what” than on “who”, i.e. on rules which in legislation and regulation express policies which advantage certain interest groups (concentrated benefit/ diffused costs). Even when legitimate, these rules should be under scrutiny of the public opinion, for their content and for the procedural way in which they have been adopted. Constitutional Courts are becoming increasingly relevant actors on stage for confidence in primary legislation. In the same way, the role of any kind of judicial review of administrative and independent regulation is becoming ever more relevant.110 In fact, Constitutional Courts (and oth‐ er Courts and judges specifically in charge to do so) scrutinise legislation (and regulation) from the point of view of its consistency with Constitu‐ tions – and other legal standards – both in content (what legislation estab‐ lishes) and from a procedural perspective (how legislation/regulation has been adopted).111 According to scholars of critical rationalism, this power to scrutinise rules puts the holder in a real position to influence decisions not only in the present but also for future:112 in fact, legislators and regula‐ tors have to comply with the requirements of Constitutional Courts (or

109 110 111

112

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Lobby; Personal and Employment Information of Lobbyists; Lobbying Objec‐ tives and Clients; Information about Lobbying Contacts; Lobbying Expendi‐ tures”. Bruno Waterfield, ‘European Parliament member resigns over “cash for laws” scandal’, in The Telegraph, 20 March 2011. On this point see Claudio M. Radaelli and Gaia Taffoni, ‘The Trustworthiness Test for Regulatory Impact Assessment and Judicial Review‘, in this book. For a critical reading on this point, see Jerry L. Mashaw, ‘Judicial Review of Ad‐ ministrative Action: Reflections on Balancing Political, Managerial and Legal Accountability’ (2005) in Revista Direito GV, Especial 1, 153, 168: “Democratic governments would surely be incompletely accountable without effective judicial review. But if ‘accountability’ is the goal, reinforcing or extending judicial re‐ view will not always be the answer”. See finally, Alberto Alemanno, ‘Courts and regulatory impact assessments’ in Claire A Dunlop and Claudio M. Radaelli Handbook of Regulatory Impact Assessment eds. (Edward Elgar Publishing 2016) 129. On this point see Hans Albert, Treatise on Critical Reason (Princeton University Press 1985) 36 onwards, Niklas Luhmann, Legitimation durch Verfahren (Legiti‐ mation through Procedure) (Suhrkamp 1983) and Herbert A. Simon, Administra‐ tive behaviour. A study of decision-making processes in administrative organiza‐ tions (MacMillan 1957). For a specific reference on trust, see Caspar Hirschi, ‘Regulation and Transparency as Rituals of Distrust: Reading Niklas Luhmann Against the Grain’, in Emmanuel Alloa and Dieter Thomä (eds.), Transparency,

The Crisis of Confidence in Legislation: an Overview

those of other Courts and judges) if they want new legislation/regulation to withstand future review.113 Finally, the system of the Media. Free information has been considered indispensable to ensure transparency in democratic systems and to pre‐ serve trust in institutions,114 operating as a sort of disinfectant.115 How‐ ever, the media tends to exaggerate bad news and cases of corruption116 and in this sense, it inevitably expresses a sort of myopia, focusing espe‐ cially on events which could frustrate trust. Moreover, the incredible influ‐ ence of the media in fixing the public agenda117 comes together with strict (sometime opaque) contacts between the media, politics and business. This makes them not always nor fully credible: in other words, there is a specific problem of media capture118 which affects trust in the system of the media itself, and which would deserve a dedicate discourse about new media and the Internet as drivers for political and institutional trust/ distrust.119

113 114

115 116

117 118 119

Society and Subjectivity, 2018, 225. See also Laurence P. Claus and Richard S, Kay, ‘Constitutional Courts as ‘Positive Legislators’ in the United States’ (2010) in The American Journal of Comparative Law, Vol. 58, Supplement: Welcoming the World: U. S. National Reports to the XVIIIth International Congress of Com‐ parative Law, 479. In general, on this aspect, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980) 102-103. PREM Network, World Bank Helping Countries Combat Corruption: The Role of the World Bank (1997) 44: «Civil society and the media are crucial to creating and maintaining an atmosphere in public life that discourages fraud and corrup‐ tion. Indeed, they are arguably the two most important factors in eliminating sys‐ temic corruption in public institutions. On this point see also Niklas Luhmann, Trust and Power cit., 53. Adriana S. Cordis and Patrick L. Warren, ‘Sunshine as disinfectant: The effect of state Freedom of Information Act laws on public corruption’ (2014), in Journal of Public Economics, vol. 115, 18. See Aumo Brunetti and Beatrice Weder, ‘A free press is bad news for corruption’ (2003), in Journal of Public Economics, vol. 87, 1801. See also Rick Stapen‐ hurst, The media’s role in curbing corruption, Working Paper (World Bank Insti‐ tute 2000) 8. Rick Stapenhurst The media’s role in curbing corruption cit., 8. Joseph E. Stiglitz, ‘Toward a taxonomy of media capture’, in Anya Schiffrin (ed. by), Media Capture and the Threat to Democracy (Cima 2017) 9. On this point see Yu You and Zhengxu Wang, ‘The Internet, political trust, and regime types: a cross-national and multilevel analysis’ (2020), in Japanese Jour‐ nal of Political Science, Vol. 21, issue 2, 68.

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6. Restoring Confidence in Legislation in Times of Pandemic Is it possible to restore confidence in legislation and regulation? If so, what could be the best way to make good rules and (in so doing) to achieve stronger institutional credibility, promoting higher levels of coop‐ eration in society, markets and institutions? Who is responsible for starting this virtuous process? What kind of incentives would be necessary to im‐ prove confidence in legislation and regulation? What degree of oversight on legislative procedures and (more in general) on rulemaking would pro‐ mote good legislation and confidence? How many and what type of con‐ trols ensure better enforcement of legislation/regulation and increase con‐ fidence? These and many other questions open the door to a research field including a wide range of disciplines: starting with confidence, it calls into question virtually all institutional activities.120 Moreover, the problem of trusting institutions has recently become a conundrum due to the severe Coronavirus pandemic. As already men‐ tioned, trust is shifting, is ever more strictly related to short term results, ever more difficult to measure (because data are controversial due to mis‐ alignments of statistical measurements121), and ever more unpredictable in its backfire. On the other hand, even if in different forms among countries, trust remains firmly at the centre of the pandemic exit strategy as well as of any other institutional dynamic being measured by the strength of social connection between people as an intrinsic component of happiness.122 Some initial and very significant insights come from relevant literature. A first piece of evidence is that, in reality, “we still know little […] about how a certain level of trust is or can be achieved and promoted”123

120 On this point, see Ulrich Karpen, ‘Confidence in Legislation as a Regulatory (and Administrative) Problem‘, in this book. 121 As in the case of the mortality rate in Italy, which includes people with comorbid‐ ity, where death is due to the severity of the consequences of the Covid-19 122 UN, World Happiness Report 2020, Ied research Program monitoring happiness levels (in 150 countries). 123 Diego Gambetta, ‘Can We Trust Trust?’, in Diego Gambetta (ed.), Trust: Making and breaking cooperative relations cit., 224.

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The Crisis of Confidence in Legislation: an Overview

even though during last decades the contribution of behavioural experi‐ ments has provided increased knowledge124 and models.125 Secondly, trust is a precious but sometimes scarce resource the absence of which makes a great difference in every kind of social dynamic because when it is lacking the possibilities to behave both in a rational (calcula‐ tive) and cooperative way are reduced.126 Moreover, literature has highlighted that mechanism of growing trust is counter-intuitive, unlike that of material resources which are subject to consumption, because trust grows with use and is reduced by disuse127 and that it is easier to destroy confidence than to restore it.128 Furthermore, although trust has a strong economic relevance,129 if both trust and distrust reduce uncertainty, distrust also reduces cooperation and increases conflict.130 Finally, trust is resistant to power in the sense that is impossible to co‐ erce, it may be only promoted by policies which success depends from concurrent factors: for this reason government does not generate trust, rather “[…] no central agency is capable of intentionally creating trust

124 See Paul J. Zak, ‘The Neuroscience of Trust’ (2017) in Harvard Business Review, January-February issue, 84. 125 As in Trust Game (TG), see Kyle Irwin, ‘Prosocial behaviors across cultures: the effects of institutional versus generalized trust’, in Shane R. Thye, Edward J. Lawler (eds.) Altruism and Prosocial Behavior in Groups (JAI Press 2009) 169-170. 126 See Eloi Laurent L'économie de la confiance (La Découverte 2019). See also Diego Gambetta, ‘Can We Trust Trust?’, in Diego Gambetta (ed.), Trust: Making and breaking cooperative relations cit., 234. 127 On this point see, Albert O. Hirschman, ‘Against Parsimony: Three Easy Ways of Complicating Some Categories of Economic Discourse’ (1984), in The American Economic Review, Vol. 74, No.2, Papers and Proceedings of the Ninety-Sixth An‐ nual Meeting of the American Economic Association (May, 1984), 93. 128 According to Thomas C. Schelling ‘Strategic analysis and social problems’, in Thomas C. Schelling, Choice and Consequence. Perspectives of an errant economist (Harvard University Press 1984) 211. 129 See, on this point, Partha Dasgupta, ‘Trust as a commodity’, in Diego Gambetta (ed.), Trust: Making and breaking cooperative relations cit., 65. 130 Niklas Luhmann Trust and Power cit., 102.

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Maria De Benedetto

where none previously or independently existed”.131 On the other hand, “trust in others helps make Governments work better”.132 What could be the best strategy to trigger institutional processes con‐ ducive to confidence? Any response would be incredibly complex, repre‐ senting both a major research issue and a very hot institutional topic, not only for national Governments but for European institutions and interna‐ tional bodies, as already seen. To the purpose of the present book, two general criteria and three aspects will be taken into consideration. Regarding the first criterion, restoring confidence (or trust repairing, as some scholars say133) implies in any case ad hoc, adequate and effective strategies, integrated among different disciplinary perspectives.134 In this light, restoring confidence is strictly connected to comprehensibility of legislation and regulation135 and with specific violations of trust because “different means of damaging trust are likely to require different repara‐ tive responses”136 and for this reason it is also important to develop an un‐ derstanding of distrust motivations.137 131 Anthony Pagden, ‘The Destruction of Trust and its Economic Consequences in the Case of Eighteenth-century Naples’, in Diego Gambetta (ed.) Trust: Making and Breaking Cooperative Relations cit., 127. 132 Eric M. Uslaner, The Moral Foundations of Trust cit., 8. 133 On trust repair, see F. David Schoorman, Roger C. Mayer and James H. Davis, ‘An Integrative Model of Organizational Trust: Past. Present and Future’ cit., 349. 134 On this specific aspect see Ellie Shockley, Tess M.S. Neal, Lisa M. PytlikZillig and Brian H. Bornstein (Eds.) Interdisciplinary Perspectives on Trust Towards Theoretical and Methodological Integration (Springer 2016); Antonina Bakard‐ jieva Engelbrekt, Niklas Bremberg, Anna Michalski and Lars Oxelheim (Eds.) Trust in the European Union in Challenging Times. Interdisciplinary European Studies (Palgrave 2019); Stephan Alexander Rompf, Trust and Rationality. An In‐ tegrative Framework for Trust Research (Springer 2015). 135 On regulatory comprehensibility Wendy E. Wagner, and Will Walker, Incompre‐ hensible! A Study of How Our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It (Cambridge University Press 2019) and Rachel Augustine Potter, ‘Incomprehensibility is a Trust Problem’ (31 March 2020) in The Regulatory Review: “Fostering trust in the rulemaking pro‐ cess is a tall order”. 136 On this specific aspect see Ellie Shockley, Tess M.S. Neal, Lisa M. PytlikZillig and Brian H. Bornstein (Eds.) Interdisciplinary Perspectives on Trust Towards Theoretical and Methodological Integration cit. 137 About the importance to develop a theory of distrust, see Eri Bertsou, ‘Rethink‐ ing political distrust’ (2019) in European Political Science Review, Vol. 11, issue 2, 213; on this aspect see also Vivien Hart Distrust and Democracy (Cambridge

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The Crisis of Confidence in Legislation: an Overview

Regarding the second criterion, even though trusting behaviour in‐ volves a number of variables,138 a joint recommendation comes from more than one field of research and institutional practice, such as strategic plan‐ ning, conflict theory, military studies139 and game theory:140 the recom‐ mendation is adopting confidence as a way to behave,141 because there is a rationality which suggests that it is best to operate “as if” there’s confi‐ dence.142 Other relevant aspects, in this regard, will be developed in following specific chapters regarding quality of legislation, the role of Parliaments and enforcement of legislation. First, quality of legislation. Alongside the traditional claim for better legislation and regulation – which refers to a well-known tool-box, includ‐ ing impact assessment, consultations, ex post evaluation and so on – more recent contributions have highlighted the need for a fine-tuning of each of these tools in order to increase as far as possible trust and confidence in rules. For instance, consultations should be contextualized and focused, based also on cognitive and behavioural insights, real transparency in the law-making and rule-making process should also be ensured, especially oriented towards full disclosure of underlying interests and the real distri‐ bution of the costs and benefits of public policies.143 Moreover, it is essen‐ tial to drastically reduce new legislation and regulation because a “stable

138 139

140 141 142

143

University Press 1978) and Joseph S. Nye, Philip D. Zelikow and David C. King (eds) Why People Do Not Trust Government (Harvard University Press 1997). On this point see Luca De Lucia, ‘Locus standi and distrust of the public administra‐ tion. A comparison of three models’ (2017) in Review of European Administra‐ tive Law, Vol 10, nr. 2, 7, 18. Paul Michell, John Reast and James Lynch, ‘Exploring the Foundations of Trust’ (1998), in Journal of Marketing Management, Vol. 14, 159. Thomas C. Schelling, ‘Confidence in Crisis’ (1984) in International Security, Vol. 8, 4, 56: confidence-building measures implies an apparent paradox: “what one wants is not to be confident but to be as confident as the true state of affairs justifies. What one wants is grounds for confidence”. Oliver E. Williamson, ‘Calculativeness, trust, and economic organization’ (1993), in Journal of Law & Economics, Vol. 36(1 Part 2), 453, 465-466. On rationality of trust, see Niklas Luhmann, Trust and Power cit., 95 onwards. On this aspect, see Laurent Jaffro, ‘Harmonic and Disharmonic Views of Trust’ (2018) in Trusting Institutions, Rivista di Estetica, 11, where he develops “a paradigm of trust, not based on how fides is treated in Augustine in general, but specifically on how it is handled in On Faith in Things Unseen”. On this point, see Nicoletta Rangone, ‘Effective consultation as a tool for Trust‘, in this book.

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Maria De Benedetto

normative frame”144 – and predictability of law – is incredibly relevant for trust and confidence. Second, role of Parliaments. Even though Government and other regu‐ lators (such as independent authorities) have become ever more relevant in concrete law-making, Parliaments remain at the centre of the legislative function,145 at least symbolically and because people need good legislation in the same way as trusting in legislation. For this reason, Parliaments are probably the most appropriate and definitely the natural place to begin any process of restoring confidence. Parliament, in fact, should be considered as the access point to the expert system of legislation146 and in this sense they express a special concern in moving the process. Third, enforcement of legislation. In the same way as non-verbal com‐ munication, enforcement says much about credibility of legislation and is absolutely relevant for promoting trust and rebuilding confidence. Legisla‐ tion and regulation, in other words, are adopted to have a street-level im‐

144 Joanna Olga Paliszkiewicz, ‘Trust Management: Literature Review’ (2011) in Management, 6, 4, 315, 320; see also Frédérique E. Six ‘Building Interpersonal Trust Within Organizations: A Relational Signaling Perspective’ (2007) in Jour‐ nal of Management of Governance, 11 (3), 285, 292. 145 On this point see many contributions in this book, espeally those of Elena Griglio, ‘Improving Confidence in Legislation via Better Regulation Tools: the Strategic Role of Parliaments‘, Nicola Lupo, ‘Confidence or Difficence in Lawmaking? The evolution oft he “normative role“ of the Italian Government‘, Gio‐ vanni Rizzoni, ‘How can Parliaments help improve citizens‘ confidence in legis‐ lation?‘, Patricia Popelier, ‘The Duty of Parliament to adopt reliable legislation: linking trust in Parliament with legitimate expectations‘ and, finally, Manuela Guggeis, ‘The responsibility oft he European Legislator and of the National Par‐ liaments for improving relations between European Citizens and EU institutions‘. 146 Anthony Giddens The Consequence of Modernity cit., 27-28: “Let us now look at the nature of expert systems. By expert systems I mean systems of technical ac‐ complishment or professional expertise that organise large areas of the material and social environments in which we live today. Most laypersons consult ‘profes‐ sionals’ - lawyers, architects, doctors, and so forth - only in a periodic or irregular fashion. But the systems in which the knowledge of experts is integrated influ‐ ence many aspects of what we do in a continuous way. I know very little about the codes of knowledge used by the architect and the builder in the design and construction of the home, but I nonetheless have ‘faith’ in what they have done. My ‘faith’ is not so much in them, although I have to trust their competence, as in the authenticity of the expert knowledge which they apply, something which I cannot usually check exhaustively myself”.

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The Crisis of Confidence in Legislation: an Overview

pact,147 with the aim of accurately preparing the success of legislative/ regulatory purposes, making it consistent words (rules in legislation and regulation) and facts (implementation, enforcement).148 To this end, con‐ trols must be oriented towards acting appropriately and evaluating the out‐ come of rules.149 History has proven that trust is at the centre both of social life and of legal systems and that under certain amounts of trust they can result slow declines or even sudden collapses: this is the first reason why crises of confidence in legislation seemed to be a challenging topic on which to col‐ lect the perspectives of several scholars. However, the etymological mean‐ ing of the word “crisis” expresses a neutral idea of change, crisis is not necessarily a bad thing.150 Resilience is the second reason why it is desir‐ able to accelerate research on this topic. In fact, the more reasonable thing to do during a crisis of confidence – especially when exacerbated by a global challenge like the current pandemic – is to put confidence in crisis, and work on it. This is the simple aim of this book.

147 Michael Lipsky, Street-level Bureaucracy: Dilemmas of the Individual in Public Services (Russell Sage Foundation 1980). 148 On this aspects, see in this book Wim Voermans, ’Trust as a cornerstone of En‐ acted Law’ and Florentin Blanc, ’Regulation, regulatory delivery, trust and dis‐ trust: avoiding vicious circles’. 149 Frédérique E. Six, ‘Building Interpersonal Trust Within Organizations: A Rela‐ tional Signaling Perspective cit. 150 Thomas C. Schelling, ‘Confidence in Crisis’ cit., 55; Susan J. Pharr and Robert D. Putnam Disaffected Democracies? What’s Troubling the Trilateral Countries? (Princeton University Press 2000).

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Antiparliamentary Thought and Crisis of Confidence in Legislation. A Historical Approach José Esteve Pardo

Summary: 1. Introduction - 2. Historical Frame - 3. Social Transformation and New Political Knowledge from the New Sciences - 4. Criticism of Parliamentarianism and its Theorists - 5. The Influence of Anti-Parliamen‐ tary Doctrines on Current Legislation and Institutions 1. Introduction This historical approach focuses on the main theories and concepts which show a clear distrust of parliamentary legislation. Such ideas were all for‐ mulated just a hundred years ago, in the time between the two World Wars. As is well known, this is also the period of totalitarianism in Euro‐ pe: Nazism in Germany, fascism in Italy, Salazar's dictatorship in Portugal, and General Franco's dictatorship in Spain. But criticism of parliamentary legislation, criticism of parliamentarism, cannot always be identified in any way with authoritarian regimes. Certainly, one stream of the criticism of parliamentarism supported and justified authoritarian movements, but other streams of that criticism have had great influence on the current po‐ litical and institutional systems which are fully accepted today. We need only consider, as an example, the creation of the Constitutional Courts in the different European states. They were created shortly after the end of the Second World War, but the academic debate, the real discussion on the convenience of this institution was earlier, during the years between the two World Wars. The limitations of the liberal parliamentary system had also been exposed when it could not prevent access to Parliament of the authoritarian parties which ended up dominating and deactivating the Par‐ liaments themselves.1 1 What is discussed in this article finds its details in José Esteve Pardo, El pensamien‐ to antiparlamentario y la formación del Derecho público en Europa, 2ª ed. (Marcial Pons 2020). An Italian translation (il Mulino) is in progress.

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Some historical data shows a common picture in the western countries of continental Europe, with a clear position of distrust towards the parlia‐ mentary regimes. 2. Historical Frame At the end of the First World War, a Republic was established in Germany for which no one had ever fought. The more traditional political parties wanted some reforms in the monarchical system, especially regarding the accountability of government to the parliament and not to the Kaiser alone. On the other side, the left-wing parties, socialists and communists, openly advocated revolution and considered a republican and bourgeois phase to have been overtaken. The vast majority of the German people saw the Weimar Republic as the result of an international plot after defeat in the Great War.2 France seemed to have a parliamentary and republican tradition since the introduction of universal male suffrage in the mid-19th century. But the elections gave a majority to the traditional parties of peripheral France. If the monarchy was not re-established, it was only because of the rivalry between the two branches, the Orleans and the legitimizing Bourbon. This explains the popular support for Napoleon III, who considerably reduced the powers of the Parliament. Only after Sedan's defeat by Prussia was Napoleon rejected by the French people. A republic was then established, dominated by a bourgeoisie which, by failing to carry out social reforms, tried to satisfy the left with anticlerical policies that generated much unrest among conservatives. The socialists also distanced themselves from the republican and parliamentary regime because it did not undertake the nec‐ essary social reforms.3 The result was that in the 1920s a widespread antiparliamentary sentiment was rooted in France.4

2 See Günter Lamsdorff, Die Weimarer Republic (Lang 1990), Ian Kershaw, Hell and Back. Europe To Hell and Back. Europe 1914-1919 (Penguin 2015), Otto Kirch‐ heimer, Von der Weimarer Republik zum Faschismus, Die Auflösung der demokratischen Rechtsordnung (Suhrkamp 1976). 3 Jean-Pierre Machelon, La République contre les libertés? (Presses de Sciences Po 1976), Jean-Jacques Chevalier, Histoire des institutions et des régimen politiques de la France de 1789 à 1958 (9ª ed. Dalloz 2001). 4 Jean-François, La France de 1914 à nos jours (PUF 1993).

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Antiparliamentary Thought and Crisis of Confidence in Legislation

In Italy, Parliament was the institution that expressed national unifica‐ tion. A unification that was seen as representing the interests of the bour‐ geoisie in the north and was not well accepted in the south. It is significant that the most prominent professors in the criticism of parliamentarianism come from the south of Italy: Vittorio Emanuele Orlando, Gaetano Mosca and Santi Romano come from Sicily, all three from the same city, Paler‐ mo, although their academic and political career took place in Rome.5 Par‐ liament and parliamentarianism were viewed with distrust by the majority of the population. There is even a whole literary genre from the end of the 19th and beginning of the 20th century that is known to scholars as “antiparliamentary literature”,6 which relates all the manoeuvres of politicians and parliamentary deputies. Among these novels are La conquista di Ro‐ ma of Matilde Serao, Il diamante nero of Anton Giulio Barrili, I viceré and above all L’imperio, both by Federico de Roberto. The decision to join the First World War was taken without the intervention of Parliament, which was not consulted when Benito Mussolini was appointed prime mi‐ nister by the King in 1922, just after the march of the Blackshirts on Rome. In a short time the fascists defused parliament and handed took over all power. Spain had, since the last quarter of the 19th century, a stable, bipartisan and alternating parliamentary regime, which was Europe's admiration as certified by Max Weber, who would eventually lower his rating. But, seen closely by the Spaniards themselves, in the 1920s the parliamentary activi‐ ty, far from the population, was completely blocked. No one defended it when in 1923 General Primo de Rivera's coup took place, establishing a dictatorship.7 The formation of an alternative institutionality to the parlia‐ mentary one was then proposed "Why, Primo asked, are we going to resur‐ rect this fallacy they call parliament, which the people who still suffer from it do not know what to do to get rid of it". Outstanding socialists such as Largo Caballero, Fernando de los Ríos and Álvarez Buylla also participated in this alternative project. It is a sign of the cross-cutting na‐

5 Mauro Fotia, Il liberalismo incompiuto. Mosca, Orlando, Romano tra pensiero eu‐ ropeo e cultura meridionale (Guerini e Associati 2001). 6 Alessandra Briganti, Il Parlamento nel romanzo italiano del secondo Ottocento (Le Monnier 1972). 7 Giulia Albanese, Dittature mediterranee. Sovversioni fasciste e colpi di Stato in Italia, Spagna e Portogallo (Laterza 2016).

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ture of the criticism of the liberal parliamentarianism which in Spain had been reduced to the representation of an outdated oligarchy.8 3. Social Transformation and New Political Knowledge from the New Sciences When the 20th century begins, great transformations take place, of which we can examine two here. One is the result of the industrial revolution and profoundly affects the structure of society: the irruption of the masses as the new subject of history in the social and political arenas. It had a tran‐ scendental impact on the liberal, censorial and elitist parliamentarianism that was dominant at the time. "There is one fact that, for better or worse, is the most important in European public life at the present time. This fact is the advent of the masses to full social power". This is how José Ortega y Gasset begins his well-known essay, La rebelión de las masas, which is not only an accurate and suggestive diagnosis of the phenomenon, but also an illustrative expression of the attitude of marked prevention, where not open disdain, of a good part of the European intellectuality to which we will have to pay particular attention.9 The fact is that we are not only inter‐ ested in following the course of historical events but, above all, in record‐ ing their impact on thinking minds, especially on those who were public law professors, but also on philosophers and scientists whose contribu‐ tions broaden the knowledge of the framework of political reflection. It is precisely in the field of philosophy and science that the second rel‐ evant transformation to which I referred takes place. Since Nietzsche, phi‐ losophy had begun to question the ideas of the Enlightenment. This criti‐ cal trend intensified in the 20th century. Henri Bergson (of particular inter‐ est for us) and existentialist philosophy are, among others, some of its main exponents. But possibly the impact of two new emerging sciences

8 Adolfo Posada Herrera, Estudios sobre el Régimen Parlamentario en España (1891) (Junta General del Principado de Asturias 1996) Sebastián Martín, El Dere‐ cho Político de la Segunda República (Universidad Carlos III de Madrid 2011) Ger‐ ald Brenan, The Spanisch Labyrinth. The social and political background of the Spanisch Civil War (Cambridge University Press 2003). 9 John Carey, The Intellectuals and the Masses (Faber & Faber 1992); see also Tony Judt and Timothy Snyder, Thinking the Twentieth Century (Penguin Books 2012).

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was even bigger: sociology and the sciences of the mind, both of which at the time were gaining the recognition and status of true sciences. Sociology was deeply involved in the analysis of legal institutions and the formation of political systems. A trend that was already noticeable in the founder of this science, Auguste Comte (without looking for even more explicit antecedents in Montesquieu or Tocqueville, who in turn pass for precursors) and is reaffirmed with outstanding authors like Emile Durkheim or Max Weber, who arrive at full fusion with the public law at this moment.10 The proof of this is that outstanding professors of public law are also considered as the founders of the sociology of law. This is the case, among others, of Maurice Hauriou and Leon Duguit in France, Gae‐ tano Mosca in Italy, or Gumersindo Azcárate and Adolfo Posada in Spain. Posada is even credited as the founder of the Spanish sociology. The con‐ tribution of this emerging science to the critique of the liberal system and the ideology of the Enlightenment was very considerable, above all in rig‐ orously questioning liberal individualism and the very idea of the individ‐ ual, which it considers to be another pure fiction of enlightened thought, since the individual only exists and is understood in society. He thus real‐ ized one of the presuppositions of liberal parliamentarianism, built on the idea of representation of equal and self-determining individuals. Another new and thriving science, psychology, also focused critically on this idea of self-determination, discovering that the decisions and be‐ haviours of individuals respond to conditioning factors and impulses that can be very complex and alien to their capacity for self-determination. If sociology denied liberal individualism in its external projection, outside, psychology questioned it completely within the individual, inside. But the sciences of the mind, its most perspicacious cultivators, also pay particular attention to collective subjects, to the masses, which then become very visible and prominent. Gustave le Bon and Sigmund Freud study the be‐ haviour of the masses and the individuals within them, warning of their predisposition to be governed by charismatic and authoritarian leaders.11 The sciences of the mind thus discover new horizons and spaces, also for the public law scholars. Maurice Hauriou's theory of the institution, which was called upon to exert a great influence on anti-Parliamentary

10 Émile Durkheim, Leçons de sociologie 1902 (PUF 2015). 11 Sigmund Freud, Massenpsychologie und Ich-Analyse (first published 1923, Fisch‐ er 2015) and Gustave Le Bon, Psicología de las masas (first published 1921, Co‐ mares 2012).

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thought, could not have been sustained without the support of the notion of the subconscious – the collective subconscious in which the institution is rooted – and the contributions of sociology and of the philosophy of Henri Bergson.12 For his part, Leon Duguit says quite naturally that law is a psychological creation of society, and Carl Schmitt also draws on studies in psychology to criticise the contradictory situation of parliamentarianism in the Weimar Republic. 4. Criticism of Parliamentarianism and its Theorists The criticism of parliamentarism and of parliamentary legislation at that time was not a simple or ordinary, vulgar, criticism. The most important thinkers of public law, the leading professors, took part in this criticism. Here we have to look at a personal element. The liberal parliamentarism of the 19th century was a clearly elitist system. On the one hand active suf‐ frage was limited, or gave greater representation, to wealthy people with higher incomes. But also passive suffrage, the right to be elected as a rep‐ resentative in Parliament, was even more restricted. Only people with ma‐ jor economic resources and cultural background could be elected. The re‐ sult was that the deputies in the parliaments were patricians, people of high cultural level: university professors, senior officials, leading civil ser‐ vants, influential lawyers. The debates that took place were debates from personal positions, discussions that were neither marked nor directed by a political party’s discipline or party orders. That political landscape was transformed radically with the great social movement of the early 20th century: the emergence and access to power of the masses as new political subjects. A phenomenon related to the in‐ dustrial revolution and to positive factors like the extension of basic edu‐ cation and literacy was the appearance of mass media: broadcasting news‐ papers, radio, cinema, tv. This was when the mass trade unions and the great mass parties appeared with their strict internal discipline and their subjection to the orders and directives of their leaders, governing bodies, or general secretariats. The deputies of these parties are no longer au‐ tonomous and free to express their position and personal reasoning in Par‐ liament. They have to follow the instructions and orders of the parties to

12 Gilles Deleuze, Le bergsonisme (5 ed. Presses Universitaires de France 2014).

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which they belong. And these political parties can reach all sorts of agree‐ ments and negotiations, outside Parliament. Carl Schmitt, one of the sharpest criticisms of parliamentarism, was against this transformation, above all in his essay "The Intellectual (Spiri‐ tual) Condition of Current Parliamentarism".13 Schmitt sustained that the liberal parliamentarianism of the 19th century, as presented by prominent liberal authors such as Guizot or Stuart Mill, was based on discussion, de‐ bate, argumentation. This made it perfectly admissible and possible, that a minority, arguing and reasoning properly, could convince the majority. And this was so because the activity of parliament and legislation was ori‐ ented towards the search for reason, which was achieved through free dis‐ cussion among well trained and educated people. Legislation was thus based on reason, the law that was passed was then considered the most reasonable law. None of us has ever known this parliamentary system. We don’t know any case in which a minority has convinced the majority in parliament. What now prevails is not the discussion and the law of reason, but the law of the majority. In any case, in order to avoid possible abuses, we are now developing some theories in order to protect the minorities, but we don’t consider minorities to have any chance to convince the majority, no matter how solid and brilliant may be their arguments may be. Schmitt then said that discussion and debate disappeared into the parliament of modern mass democracy dominated by large parties that negotiate and trade with their respective interests. Schmitt's conclusion is that parliamentarism is not necessarily identified with democracy, there can be democracy without parliamentarism. He thought that liberal parliamentarism was outdated and mass democracy should be based on other procedures, such as popular ac‐ clamation and charismatic recognition of the leader. It should be remem‐ bered that Schmitt's study on parliamentarism was published in 1923 and that the author is very impressed by the events that took place a year earli‐ er here in Rome with the march of the fascists, the Blackshirts, and the ac‐ cess to power and recognition of Benito Mussolini as supreme leader. Schmitt's critique of parliamentarism in mass democracy, the critique of the loss of the rational sense of legislation is brilliant and accurate, but this critique led him to put forward proposals that supported authoritarian

13 Die geistesgeschichtliche Lage des heutigen Parlamentarismus (firtst published 1923, Duncker&Humblot 1979).

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movements.14 He contemplated with admiration the birth of fascism in Italy and joined the Nazi party supporting some of Hitler's criminal ac‐ tions such as the assassinations of rival politicians in the night of long knives when he wrote an article with the title, “The Fuhrer protects the Law”. Schmitt was judged in Nuremberg and removed from his high pos‐ ition (Lehrstuhl für offentliches Recht) at the University. But there was more criticism of parliamentary legislation at that time by authors who cannot be considered close to authoritarian movements and regimes. One of them is Leon Duguit, professor of public law at the Uni‐ versity of Bordeaux. In France, the first criticisms came from socialist thinkers, Saint Simon and Proudhom among them, and from sociologists: first Auguste Comte, and later Emile Durkeim, a close friend of Leon Du‐ guit and a colleague at the University of Bordeaux. Duguit develops the social critique of bourgeois and liberal parliamentarism which, according to him, had its roots in the many fictions of J.J. Rousseau and the Enlight‐ enment, including the fiction of popular representation. The reality, says Duguit, is that laws are not the expression of the will of the people, but that of the deputies who agree on their content and write them. If it had been denied, said Duguit, that the monarchy, the king, received the power of God, it should also be denied, it was pure fiction, that the law was an expression of the will of people. They were metaphysical notions with no chance of scientific proof, no chance of empirical check. It was also, and this was the core of Duguit's criticism, an a priori legitimacy of public power, without any confirmation by the facts or real activity or ser‐ vices provided. In an aprioristic legitimacy of political power, such as in a monarchy, one person becomes king for being the son of the king without having demonstrated any virtue, capacity or accomplishment. But some‐ thing similar happens in parliamentary democracy: one party comes to power because it wins an election, without any effective implementation. That is why Duguit maintains the principle of legitimacy a posteriori: the public power, the rulers, are legitimated by what they actually do for their people, and what the rulers must do and offer are public services. Public

14 On Schmitt’s life and his drift towards Nazism see Joseph Bendersky, Carl Schmitt. Theorist for the Reich (Princeton University Press 1983). More widely, see Reinhard Mehring, Carl Schmitt. A biography (Polity Press 2014).

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power is not legitimated by the elections it wins, nor by the legislation passed in parliament, but by the public services it provides.15 Duguit's ideas had different lines of influence. On the one hand, his the‐ ories on the legitimacy of public services and the rejection of a priori, roy‐ al or democratic legitimacy were very well accepted by non-democratic regimes (with right or left trends) to justify themselves, such as the Franco regime in Spain or the Castro regime in Cuba, where the ideas of Leon Duguit were well received. Franco and Fidel Castro, who each remained in power for more than forty years, promoted the provision of public ser‐ vices, the construction of roads, schools, hospitals, those achievements in the field of public services were what, in their opinion, gave them legiti‐ macy. There was no need to gain democratic legitimacy by standing in open elections and parliamentary legislation. But Duguit's criticism of bourgeois and liberal parliamentarism also had another influence that has remained in the political systems of many Euro‐ pean states and even in the European Union. This is the attention to public services as an important part of the action of States and Public Adminis‐ trations. A provision activity, typical of Welfare State that is directed by a kind of ethical code of its own with principles that must be respected by legislation: the principles of continuity of service, accessibility, equality, and attention to disabled people. Ernst Fortshoff, a professor of public law was also a declared anti-par‐ liamentary. He represented in Germany a similar position as Duguit in France. During the Weimar Republic he was a disciple of Carl Schmitt and adopted positions of the Nazi party. As he was still young, he did not take on any responsibilities or positions, so he was not purged, not judged in Nuremberg, and could return to the University. His attention was focused on the State of the industrial society and on the value of Public Adminis‐ tration in it, specifically that which called for provision administration (Leistungsverwaltung):16 the Administration that offers benefits to society, in the same line as the public services of León Duguit. Forsthoff and Duguit started working on constitutional law, both with important contributions on legislation – contributions in which they were very critical of liberal parliamentarism and legislation. For them legisla‐

15 Léon Duguit, L’Etat, le droit objectif et la loi positive (Fontemoing 1901) and Les transformations du Droit Public (A. Colin 1913). 16 Ernst Forsthoff, Die Verwaltung als Leistungsträger (Kohlhammer 1938) and Der totalle Staat (Han 1934).

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tion was in the hands of political parties and the political jobbery. They held that the Public Administration was much more relevant, especially in modern industrialised society for which the basic benefits and public ser‐ vices offered by the Administration are fundamental. That is why both Léon Duguit and Ernst Forsthoff shifted their attention from constitutional law to concentrate on administrative law. In fact, these two authors are to‐ day better known for their contributions to administrative law than to con‐ stitutional law. The same evolution can be seen in other important authors of that period who thought that the most important and forward-looking part of the theory of the State was not legislation, but the activity of the Public Administration, which at that time was clearly expanding. Other very important authors of that time also slipped from constitutional law and criticism of legislation to administrative law, which they believed had a better future and projection is the case of Maurice Hauriou in France or Vittorio Emanuele Orlando and Santi Romano in Italy. Also the dominant philosophy in the time between the two World Wars, existentialist philosophy supported the role of the Administration over the legislation. The most influential philosopher on public law development on this point was probably Karl Jaspers, who held that human beings in the urbanized and industrialized society were in need of some basic ser‐ vices that they themselves could not obtain, and needed the provision and care organization of the State. Jaspers had a great influence on Forsthoff and on his doctrine of wellfare administration. And in a much simpler way, the political authorities (not the scholars) of the authoritarian regimes of that time frequently launched this phrase: less politics and more administration. The future would reveal that the machinations of political parties in parliament to produce laws are of no use. What is really important is the effective action of the Administration and the services, provisions and public utilities it provides. Another critical line of thought regarding legislation is that which seeks to set its limits, a space, an area that it cannot go beyond. This already ex‐ isted in the nineteenth century as something typical of the coexistence of two foundations of legitimacy of power: the royal principle, which had its own space regulated by the king and government ordinances, and the democratic principle, which dominated the space regulated by the laws of parliament. With the general affirmation of popular sovereignty in the twentieth century, legislation as an expression of that popular sovereignty would not have a closed scope and could extend to any space. But then some professors of Public Law elaborated a theory that seeks to maintain a 60

Antiparliamentary Thought and Crisis of Confidence in Legislation

space outside the scope of legislation. This is the distinction between gen‐ eral subjection relations and special subjection relations. General relations are those that affect any citizen who is subject to regulation by legislation; special relations are those that affect certain individuals or groups with a more intense subjection. They would be relations that are not regulated by legislation but by instructions and orders of the Administration. This dis‐ tinction was initially due to German professors, Paul Laband and Otto Mayer, who limited the cases of special relations of subjection to prison‐ ers, soldiers and civil servants. But a little later, when parliamentarism seems to prevail in the Weimar Republic, Otto Mayer will try to limit the scope of legislation by expanding the space excluded from its regulation. Mayer understands that the users of the öffentliche Anstalt – the special‐ ized public organizations that provided services and public utilities, like a hospital or a public school – also remain in a special subjection relation‐ ship. After the Second World War, the category of special relations of subjec‐ tion was reviewed and criticized by the courts and the scholars. It was not admissible for persons in this category to deny the rights that the Constitu‐ tion recognizes for everyone. Special subjection relationships were there‐ fore not admissible under constitutional law, but still possible under ad‐ ministrative law. They have thus lost the authoritarian component that was once used by the Nazi regime, but are still used today to explain the more intense application of powers and controls by Agencies in regulated mar‐ kets and sectors. Thus in some cases the Courts have understood that oper‐ ators, companies operating in regulated markets that provide services of general interest (telecommunications, energy, transport, etc) are subject to more intense control and intervention by the agencies than that which falls on other persons or entities. This is because they are in a special subjec‐ tion relationship. A space not fully dominated by legislation. Another cut to the legislation that is now a widespread reality in Europe is the one that began in Sicily, with the earthquake that devastated the city of Messina in 1913. Then the young professor Santi Romano justified that for reasons of urgent necessity, as was the emergency situation created by the earthquake, the Government could issue decrees with the same rank as the laws passed by Parliament.17 This is how the category of Decree-Law

17 Santi Romano, ‘Sui decreti-legge e lo stato di assedio in occasione del terremoto di Mesina e Reggio Calabria, 1913’, now in Scritti Minori, vol. I (Giuffrè 1990).

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began to form, which had much application during the time between the two world wars, especially in France, where governments used the De‐ cree-Law frequently to deal with economic and monetary crises. Some prominent jurists and politicians, such as Leon Blumm in France, criti‐ cized this practice as undemocratic, but when he become prime minister he used the Decree-Law with the same or even more frequency. Today the decree-law is used very extensively and abusively, and has displaced parliamentary legislation. The Italian philosopher Giorgio Agamben has thus been able to state that the Republic is no longer parlia‐ mentary but governmental and that Western culture does not realise that it has lost its canon.18 The fact is that the Decree-Laws do not have a solid doctrine or argument behind them, only the call of the urgent need. But its use has been abusive and therefore I think it can be objected that the Con‐ stitutional Courts have adopted a very deferential attitude and have not es‐ tablished a strict doctrine in preventing abuse by governments. Finally, I will refer to a theory that has exerted a great influence on leg‐ islation and the position of the legislator. It is the theory of the institution and the institutional thought. The main contributor to the theory of the institution in legal domains is Maurice Hauriou. A professor who spent his whole life at the University of Toulouse and who never got involved in politics, mass medias or public opinion, he nevertheless had a clear influence not only on administration and law, but also on political thought. Among his contributions, the theory of the institution is probably the most influential. Hauriou distinguishes between the subjective and the objective in law. The subjective is what is defined by the conscious will of people, as can be the statement of intent in a contract or the declaration contained in a law that expresses the will of parliament. On the other hand, the objective in law is what is there, rooted in the community, and does not depend on the conscious will: "the institutions represent in law, as in history, the cate‐ gory of permanence, continuity and the real".19 The idea that there is a previous legal order in the nature of things was not new. It has been very present throughout the history of Law in the West and is linked to what is generically known as natural Law that has

18 Giorgio Agamben, Stato di eccezione (Bollati Boringhieri 2003). 19 Maurice Hauriou, La théorie de l’Institution et de la fondation (essai de vitalisme social) (Cahiers de la nouvelle journée 1925). See also, Principes de droit public 1910 (Dalloz 2010).

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had diverse manifestations. It is, however, at the end of the nineteenth and beginning of the twentieth century when these ideas are confronted with legislation, with the law that comes from the parliamentary legislator. Thus Vittorio Emanuele Orlando spoke at the end of the 19th century of a primitive Law that is rooted in all societies and that is up to the legislator to discover. 20 Therefore the legislator cannot create or invent this legal or‐ der. In 1925, Hauriou published his short essay "Theory of the Institution" which follows the same idea. But something has changed in the scientific and intellectual panorama in Europe in those thirty years. Psychology and the sciences of the mind appeared and had a great development in France with authors such as Gustav Le Bon, a great expert in social psychology. The Austrian Sigmund Freud had also studied in France. It is then when Maurice Hauriou can talk of the collective subconscious in which institu‐ tions are conformed. If the subjective conception of Law referred to the conscious will, the objective conception focuses on the collective subcon‐ scious. Institutions thus contain the basic structures and values of a soci‐ ety. This has a very important consequence for the legislation, which is that the legislator has to respect the institutions, and although it can regu‐ late secondary or peripheral aspects, it cannot regulate the core of the in‐ stitution. But it was Carl Schmitt who soon gave the idea of an institution a legal and constitutional function and shaped the category of institutional guar‐ antees that is still in force today. The Constitution protects and guarantees certain institutions and protects them against their potential enemy: the parliamentary legislator. Schmitt made use of the category in the political arena of the Weimar Republic to protect certain institutions against the parliamentary legislator, against that parliament dominated by the new mass parties.21 More recently, fundamental human rights are also per‐ ceived not only as defensive spaces of freedom according to the liberal conception, but also from an objective viewpoint,22 as values that guide 20 Vittorio Emanuele Orlando, ‘La decadenza del regime parlamentare’ [1889], in Rassegna di scienze sociale e politiche. 21 Carl Schmitt, ‘Freiheitsrechte und institutionelle Garantien der Reichverfassung’ (first published in 1931, now in Verfassungsrechtliche Aufsätze, Duncker&Hum‐ blodt 1985). 22 José Esteve Pardo, ‘Subjektive und objektive Dimension der Grundrechte zwis‐ chen europäischer integration und nationale Rechtskulturen’, in Europäischer inte‐ gration und nationale Rechtskulturen, Christian Tomuschat (Hrg) (Carl Heymanns 1998).

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and bind the parliamentary legislator. This is how we have passed from a fully free a sovereign legislator to a directed, linked and tied parliamentary legislator.23 5. The Influence of Anti-Parliamentary Doctrines on Current Legislation and Institutions But what gives to the anti-parliamentary thought of the inter-war period its true height is not only its critical flow, but, above all, its capacity to articu‐ late proposals and contributions through which it has exercised its influ‐ ence in the construction of public law in Europe. It should be noted that this thought was not always manifestly critical or aggressive towards the figure of Parliament, since criticism was often packaged in a whole series of theories or proposals that did not directly attack the parliamentary insti‐ tution, but which had the effect of reducing its role and power. The most sophisticated critical thought regarding the power of the parliament was not the one that aspired to suppress it, but to tame it. It is the thought that conceives of a whole series of theories and institutions with which it is in‐ tended to moderate and rationalize the power and prominence of parlia‐ ments. This is the line that ends up leaving a clear and deep mark on the legal and constitutional order in which we are still installed. The proposals and demands that were put forward no longer looked to the past, much less sought the restoration of a previous regime as had been common in the reactionary sectors at various times in the 19th century. We are in front of a generation of brillant professors with ample training and enough intelligence to realize that it was not possible to go back, that their ideas and proposals had to be inserted into a new order and contribute to shaping it. The political movements of the time – Fascism in Italy, the Es‐ tado Novo in Portugal, Nazism in Germany – were also presented as something new, which could be attractive to demoralised populations, who had been hit first by the First World War and then by a severe economic crises. In the academic field a trend that tries to recompose the dualism be‐ tween Parliament and Administration, adapting it to the new cosmos, in

23 José Joaquim Gomes Canotilho, Constituçâo dirigente e vinculaçâo do legislador (Coimbra Editora 1982).

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turn reflects that which differentiated between democratic principle and monarchical principle. In the inter-war period, a current of thought was recorded that was oriented either to preserving a space under administra‐ tive regulation – and therefore outside the intervention of the parliamen‐ tary legislator – under the protection of theories such as special relations of subjection or the reserve of Administration; or to justifying a regulatory power proper to the executive, with the variant of the decree-laws that were shot up in that period, especially in France due to the economic cri‐ sis. Consequently, the criticism and proposals to overcome the liberal par‐ liamentarianism came to postulate a deep reconstruction of the correlation between the different state bodies and the addition of others, such as the constitutional jurisdiction to exercise a judicial control of the laws, so that the very idea of Constitution is transformed by being conceived as a rule that subjects the legislator and is insurmountable for him, which in turn re‐ sults in a redefinition of the parliamentary law itself.24 The legitimization of the public Administration activity in the effective provision of public services and utilities, and not so much in the a priori legitimacy that a le‐ gislative delegation grants it, is another of the contributions that have their origin in the criticism of liberal parliamentarianism and that will give cov‐ erage to an increase in the activity of the public Administration that will promote the take-off of the social or welfare State. From the distance of a historical perspective, and taking into account above all the training and disposition of those who design and propose them, the contributions of anti-parliamentary thought also seem to find an explanatory key in the desire of the experts, of a group of well-established and self-assured professors, to gain mastery of the key concepts and insti‐ tutions of public law, of its interpretation and application. They were, or felt themselves, the qualified professionals, the lords of the Law, the priests called to give it its true meaning, adapting it to the circumstances. This was a vital and highly sensitive subject, as can be seen in this era of political turbulence, which could not be completely given over to the dawn of a Parliament open to mass parties and the games of their interests. It was a position that one of them, Max Weber, made very explicit in relation to an economic institution that is also very sensitive, the Stock Ex‐

24 Raul C. van Caenegem, An historical Introduction to Western Constitutional Law (Cambridge University Press 1995).

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change, which, according to Weber, should be left in the hands of profes‐ sionals, without direct access to it by the general public. For these reasons, the entry of the masses into the political and institutional scene, notably in Parliament, should be moderated and counterbalanced by mechanisms whose application was reserved for public law professionals. Such is the case of those that involve a link with the legislator, such as the understand‐ ing of fundamental rights as values, institutional guarantees, institutional‐ ist thinking in short, which requires an evolving definition and interpreta‐ tion of contents that is reserved for expert and qualified jurists. Another path is opened up by admitting judicial control of laws through the Consti‐ tutional Court, to which these technical jurists, usually professors, are called, except at some point as we shall see when they are forced to pay for their faults by being excluded from that position. It cannot be ignored that when the professors of public law appealed to an institutionalist, ob‐ jective conception of fundamental rights or institutional guarantees, they were claiming for themselves to reveal the meaning, the essential nucleus that they had in each case; in the same way that when they postulated the establishment of a Constitutional Court they thought of the exclusive pres‐ ence in it of reputable jurists, themselves in the forefront, to lead the erring parliamentary legislator back to orthodoxy. Thus, a very significant migration of the academic class took place: in the 19th century, university professors had had a wide and recognized presence as deputies in state and regional parliaments, where their knowl‐ edge and reasoning were taken into account in the drafting of laws; they withdrew from them when they came under the domination of the mass parties and their discipline, as Triepel reported; and they ended up as judges in the Constitutional Courts created after the Second World War. Their domination over the law, as guardians of the law, was thus restored to another strategic position that they themselves had raised. This is already a clear sign that anti-parliamentary thought not only generated criticism and proposals, but also very directly inspired achieve‐ ments that endure. They crystallised in Europe after the end of the Second World War, throughout the second half of the 20th century. It is not possi‐ ble in this paper to expose and analyse this constitutional, juridical and in‐ stitutional reality in force, which could be inspired by conceptions and ideas with some anti-parliamentary matrix. What may be of interest is to detect, as far as possible, the ways in which this anti-Parliamentary thought, so alive in the inter-war period but partly sunk in the authoritarian regimes and the war they unleashed, resurfaces in the mid-20th century to 66

Antiparliamentary Thought and Crisis of Confidence in Legislation

leave its mark on the first constitutional expressions and which, discreetly but effectively, has continuity and development in a new generation of publicists who published their first important works at the end of the 1950s and beginning of the 1960s.

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Confidence in Legislation as a Regulatory (and Administrative) Problem Ulrich Karpen

Summary: 1. Governance in Crisis? - 2. Confidence in the Rule of Law State - 3. Better Legislation - 4. Better Implementation - 5. In Need of Bet‐ ter Government! 1. Governance in Crisis? We are currently facing a worldwide crisis, undoubtedly, the health crisis of Covid-19. It is a time of difficulty and danger, a critical or turning point, a crossroads of great malfunction of our health, economic and social systems or a solution in unforeseeable times. This crisis goes alongside with a loss of confidence in traditional living conditions and the steering management of public institutions. Governance as legislation, executive and judiciary are under stress and at risk of not working effectively. The current crisis is a test, whether governmental systems of different kinds are in a position to understand and solve the problem which affects soci‐ eties existentially. Democratic parliamentarism and more or less authori‐ tarian systems have to cope with basic expectations of their people and to meet fundamental confidence in those, who have a proved and fair man‐ date to rule the country or pretend to have it. In view of the obvious and full force of the current health crisis, former signs of distrust in the public institutions, legislation and administrative bodies seems to look pale, although such forms of fading confidence in governance have obviously intensified in the course of the last years and decades. A lack of respect for politicians, a general “annoyance”, the “an‐ gry citizens”, who are encouraged by the proclamation: “Don’t vote, de‐ cide for yourself!”, all these phenomena depict the mood of many citicens.

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Some authors look at the liberal states (of the West) as to be already in a “postdemocracy”.1 The criterion of a crisis in state and government is that complex deci‐ sions have to be taken under high pressure of time and uncertainty of facts and adequate value standards.2 This is true not only for the current pan‐ demic and its medical, social, economic problems, but for other global, European, and national challenges of parliaments and governments, like the crash of Lehman Brothers (2008), the migration crisis (2015), the Cli‐ mate Protection Agreement (2019), the” Fridays-for-Future” movement. 2. Confidence in the Rule of Law State As far as a lack of confidence in legislation and administrative implemen‐ tation of law is concerned, it is not easy to analyze the focus of an alleged crisis. Is it distrust in legislation, in intransparent procedures, lack of ac‐ cessibility or other quality of laws, in overcomplex regulation? Is it dis‐ trust in parliamentarism itself? Some critics observe excessive authoriza‐ tion of the executive. Or is it distrust in the parliamentary democracy as a form of representative democracy? Should there be more patterns of “di‐ rect democracy”, referenda and different forms of participation? Or is the constitutional system itself the focus of criticism, our constitutional sys‐ tem, which is based on the rule of law and human rights? Is the target of deep-rooted criticism “politics”, “policy”, “der Staat”, governance in the broadest sense, close to the goal of Boris Johnson’s Brexit-Statement,3 “we must take back control”? In some cases, the loss of confidence in the political system is clearly recognizable. The democratic legitimacy, for in‐ stance of International Treaties or decisions of the European Union,is re‐ duced, if compared with the national sphere. European activity requires

1 Colin Crouch, Postdemokratie (Suhrkamp, 12th edn., 2008) 101; Christoph Möllers, Demokratie jenseits des Staates (Wagenbach, 2nd ed., 2009) 81; Michael Crozier et al, The crisis of democracy (New York University Press 1975) 161: “The Dysfunctional Democracy“; Ulrich Karpen, ´Repräsentative Demokratie in Deutschland-Eine Krisengeschichte?` in Veith Mehde and Margrit Seckelmann (eds.), Zum Zustand der repräsentativen Demokratie (Mohr Siebeck 2017) 21-30. 2 Andreas von Arnauld, Rechtssicherheit (Mohr Siebeck 2006) 493; Angela Schw‐ erdtfeger, Krisengesetzgebung (Mohr Siebeck 2018) 2. 3 ‘Statement of Boris Johnson in the Brexit-Debates on 26.05.2016´, in Kristian Niemitz, Institute of Legal Affairs, 5.10.2016.

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democratic legitimacy and European administrative standards, as well as the ever-growing body of European Administrative Law and Good Euro‐ pean Practice, are in need of new legislation and consolidation of better regulation. To respond to the critical statement that confidence in legislation and administrative implementation of law can no longer be taken as granted, it is necessary to have a look at the other side of the picture. In particular in these days of the pandemic crisis it is obvious that anybody is dependent on the “managerial capacities of the state”, of a sufficient and fair distribu‐ tion of resources to everybody. In society, we observe a major political ac‐ tivity, beyond elections and participation, of many groups, namely interest groups. The role and function of local policy is growing and one observes campaigns, activities of different lobbies (Greenpeace). That is nothing less than “Utopia of democracy”.4 So the analysis, whether there is a crisis of confidence in legislation and administrative implementation of the law, requires some more in-depth re‐ search. The first preliminary finding clearly indicates, however, that there is an urgent need to improve the scope and instruments of good gover‐ nance, namely: • good/better legislation, • the effective implementation of laws by administration and • the enforcement of laws by administration and courts: One of the most popular citations of social science is Niklas Luhmann’s observation: “Without any form of confidence, one could not leave the bed at morning; uncertain anxiety, paralyzing horror would affect one”.5 Con‐ fidence means reduction of complexity, organization, procedure, law help to find oneself in a world that is familiar. In the context of legislation and administration, usually government acted in a special manner and one may trust in the expectation, that under similar conditions governmental institu‐ tions will behave in the same way. This is the psychological and social ba‐ sis of daily conduct of life in a rule-of-law state. Protection of confidence is the idea of legal security in the perspective of an individual right. In

4 Colin Crouch, Postdemokratie cit., 20. 5 Niklas Luhmann,Vertrauen (UTB, 5th edn. 2014), 1.

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general, protection of confidence bans retroactive legislation.6 The law must be recognizable, calculable and reliable. Confidence in legislation, administration, jurisdiction is a facet of trust as a principle of law.7 Every person may have good faith in that behaviour of another party or institution, what may be expected according to provi‐ sions, conduct, or law. Confidence impedes the misuse of law, forbids con‐ tradictory behaviour, and demands proportional action. Confidence is an essential element of security of law, which means individual safety by law and assured reliability of the legal order. Security of law and confidence are closely connected in the self-commitment of all public power. In the division of powers system this means that the legislature is bound by the constitution, the executive and the judiciary by constitution and statutory law. Confidence and security of law obviously are elements of the rule of law and supported by general agreement.8 The “rule of law“ refers to a principle of governance “in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicat‐ ed, and which are consistent with international human rights, norms, and standards. It also requires measures to ensure adherence to the principles of supremacy of law, equality before the law, fairness in application of the law, separation of powers, participation in decision-making, legal certain‐ ty, avoidance of arbitrariness, and procedural and legal transparency“.9 Rule of law is indeed a term with very broad meaning. Some are of the opinion that it is an idée directrice or just a “magic box“, where one gets out what one has put in before. Rule of law, however, has been adopted and developed in all constitutions, although not necessarily practiced ac‐ cordingly. When applied, it allows people to have confidence in govern‐ ment, as they must, if peace is to be mainened within society and the com‐ mon good is pursued.

6 Beatrice Weber-Dürler, Vertrauensschutz im öffentlichen Recht (Helbing und Licht‐ enhahn 1983) 36; Karl Larenz, Methodenlehre der Rechtswissenschaft (Springer, 6.edn., 1991) 424. 7 Ibid., 30 8 Ibid., 50; Katharina Sobota, Das Prinzip Rechtsstaat (Mohr Siebeck 1997) 462; Philipp Kunig, Rechtsstaatsprinzip (Mohr Siebeck 1986) 187. 9 `Report of the Secretary General on the rule of law and transitional justice in con‐ flict and post-conflict societies`, Doc. UN S no. 2004/616.

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Rule of law, where people trust in it, may be displayed in three perspec‐ tives:10 • as substantive or material justice, equity; • as formal justice: systematic and understandable communication be‐ tween government and people; • as procedural justice: due process and fairness. Legitimacy of governmental action must be based on these three pillars.11 In the following confidence in government will be studied in focus of leg‐ islation. 3. Better Legislation The law is the basis for confidence in state and government. The legislator is responsible for enacting good law which provides for clarity, certainty, reliability, and is in accordance with the rule of law. A good law is the re‐ sult of a procedure which is transparent, accountable, inclusive, and demo‐ cratic.12 The contents should be achieved by consent in the goals, guided by rationality and open discussion. The text of the law should aim at the highest degree of clarity and focussing on the legislative intent. Further‐ more, good law-making should try to use instruments which ensure effect‐ ive implementation. This is primarily the task of the executive. Better legislation, which most states, namely parliaments, aim at, is not only the controlled quantity13 and improved quality,14 but more efficacy, effectiveness and efficiency as well.15 The question of how to improve

10 Charles-Albert Morand, Légistique formelle et matérielle. Formal and Material Legistic (Presses Universitaires d'Aix-Marseille 1999), 19. 11 Andreas von Arnauld, Rechtssicherheit cit.,32 12 Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist, 2016, 13. 13 Paul Mentoe, Gulliver Enchene (La Table Ronde 1982). 14 Maria De Benedetto, Mario Martelli and Nicoletta Rangone (eds.), La Qualità delle regole (il Mulino 2011); Ulrich Karpen, Legislation and Legistics in Europe. Topics for a comparative Study (Hamburg University Papers 2012); Luzius Mader et al. (eds.), Quality of Legislation (Publications of the IAL, vol.16, Nomos 2011). 15 Ulrich Karpen,`Efficacy, Effectiveness, Efficiency`, in Klaus Messerschmidt and Daniel Oliver-Lalana (eds.), Rational Lawmaking under Review. Legisprudence according to the German Constitutional Court (Springer 2015) 295-313.

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confidence in law requires to shed light on three topics of the quality of law in need of improvement: • procedural legislation: who legislates and how? Actors, organization, and procedure of law-making; • substantial legislation: policy, objectives, and instruments of law-draft‐ ing, which must be checked by evaluation; • formal legislation: language, structure, techniques of law-drafting. The system and standards of law-making are essential elements of the con‐ stitutional state, which is imprinted by democracy and rule of law. The constitutional state is attached “to the principles of liberty, democracy and respect for human rights and fundamental freedom and of the rule of law”.16 For legislation procedures, the most important notion of Rule of Law (“Rechtsstaat”, “État de Droit”, “Stato di Diritto”) is the division of powers. The law takes precedence over all acts of the executive and the judiciary (“priority of the law”, “priorité de la loi”, “primazia della legge“).17 Under the principle of parliamentary reservation, all actions of the state are based on – or limited by – parliamentary law (“reserve de la loi”, “riserva di legge”).18 This is essential, in particular, for regulations which set limitations on freedoms and rights. These principles of the con‐ stitutional state are fundamental for the democratic trust in government. Laws are enacted in a procedure in which all constitutional organs partici‐ pate, namely parliament and government. The procedure may be described as the “legislative cycle”, with many elements from an impulse as a re‐ quest from society or governmental organs to legislate on a problem or other questions – until, finally, the implementation of a law or amendment (if needed). This cycle may be roughly divided into the preparatory, parlia‐ mentary, and post-parliamentary phases.19 In principle, law-making in European parliaments follows the Westminster model. In multi-layered po‐ litical systems – like federations - exist bicameral legislatures. The bills, after having passed through the first chamber, have to be transmitted to the second chamber (“Senate”, “Bundesrat”, etc.) for deliberation and deci‐

16 17 18 19

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Preambule of the Treaty of the European Union (TEU) 5. e.g., Art. 20, sec. 3 of the Constitution of Germany. Philipp Kunig, Rechtsstaatsprinzip cit., 316. Stefan Höfler et al., ´Legislative Drafting`, in Ulrich Karpen and Helen Xanthaki, Legislation in Europe. A Comprehensive Guide For Scholars And Practitioners (Hart 2017) 146 ff.

Confidence in Legislation as a Regulatory (and Administrative) Problem

sion. This is another “step of reflection” and participation in the legislative process. The same is true for plebiscites or referenda. Finally, the bill is enacted, promulgated, and implemented. Confidence is not only based on the organisation and procedure of lawmaking, but on the acceptance of goals and instruments of the law as well. An increasingly important tool to guarantee acceptance in this sense the ex ante- and ex post-evaluation of the bill and the law. According to norma‐ tive standards of “good legislation”, constitutions of countries are under‐ stood not only as frame and road map of legislation, but as a system of values to be realized, vested in guiding constitutional principles for policy, goals, and instruments of law as well. However, constitutional provisions remain mere directives for political actors, as they are usually formulated in broad and open terms. They have to be substantiated by parliaments. Here it is, where expectations of the people and, then, their confidence in good governance flow into legislation. Examples of these yardsticks for legislation are “peace” and “security”,20 “rule of law”21 or financial and economic standards.22 More detailed, either in constitutional texts or (mostly) by case law, is the standard of “equal treatment”. It enshrines the commitment of the state to promote equality as well as rights of individu‐ als to be free of discrimination. Equality is guaranteed in law as before the law.23 At the very least, these broad principles in constitutions are valuable for purpose-oriented interpretations by courts and they have done their work (and do so) to breathe life into juridical value standards. In most European countries, deregulation became a major topic in re‐ cent years, resulting in national policies of “good governance”, which ob‐ viously primarily means “good and better regulation/legislation”.24 Not only the reduction of the quantity of regulations is at stake. The new poli‐ cy also includes a systematic analysis of drafting and implementation of legislation, of regulatory impact, namely costs for business, the citizens and bureaucracy (Regulatory Impact Assessment, RIA).25 Switzerland was 20 21 22 23

Arts. 3 (2) and 3 (5) and 42 ff. TEU. Art. 2 TEU. Art. 3 (4) TEU. Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist cit.,18. 24 Ulrich Karpen, `Good Governance`(2010), in European Journal of Law Reform, 12, 16. 25 OECD, Cutting Red Tape. National Strategies for Administrative Simplification (OECD Publishing 2006).

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the first European country to have introduced RIA into the Constitution: “The Federal Parliament shall ensure that the efficacy of measures taken by the Confederation is evaluated”.26 The evaluation of drafts naturally takes place ex ante, very often by bodies independent of government. Stakeholders and interest groups are included. They may best know the impacts of legislation in their respective fields of society and activities. This kind of participation strengthens confidence in the (then enacted) law. There is – under the rule of law – a constitutional duty to monitor the ef‐ fectiveness of law, to revise it (if necessary), and to maintain its quality. Monitoring laws looks at the intended consequences and the unintended impacts of legal activity. An essential element of the quality of a given law is its structure, language, and technique. A law which is published in good formal quality can be understood by addressees and consequently fosters compliance. Most jurisdictions introduce rules of legislative draft‐ ing that bind the professional drafters. At the same time, there are still EU standards to be observed, and these offer useful guidance to transposition drafters. In summary: a law must be foreseeable, stable, meeting the legiti‐ mate expectations, and be non-retroactive.27 Foreseeability not only means that the law must, where possible, be proclaimed in advance of implemen‐ tation, but also predictable as to its effects. It must also be formulated with sufficient precision and clarity to enable legal subjects to regulate their conduct in conformity with it. Instability and inconsistency of legislation also may affect a person’s ability to plan his or her actions. The principle of legitimate expectations is part of the general principle of legal certainty and security of the law. In general, especially in criminal legislation, laws must not be retroactive. However, in civil and administrative law, a retroactive limitation of the rights of individuals or imposition of new du‐ ties may be permissible, but only if the public interest demands it. It must be in conformity with the principle of proportionality. Amendments must always take care of the acquired confidence in the law. “Legal systems can be likened to public gardens. They work best when they are properly kept

26 Art. 170 Swiss Constitution of 18.04.1999, as amended on 1.1.2020. 27 Helen Xanthaki, `Formal `Legisprudence´, in Ulrich Karpen and Helen Xanthaki (eds.), Legislation in European Countries (Hart 2020, forthcoming); Ulrich Karpen, Instructions for Law Drafting‘ (2008), in European Journal of Law Re‐ form, 164-181.

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and maintained and this allows them to be easily used”.28 A proper lawmaking house-keeping ensures certainty, creative compliance, and effect‐ ive implementation. 4. Better Implementation There could be confidence in regulations only if they are successfully im‐ plemented. Regulation as “law in the books” cannot acquire trust. Legisla‐ tion, to gain confidence, must meet the standards of • • •

efficacy, effectiveness, and efficiency.29

Efficacy is the extent to which legislative action achieves its goal. A law has a high level of efficacy if – when implemented – it comes closest to the legislative intent. Effectiveness is the extent to which observative attitudes and behaviours of the target population correspond and are a consequence of the norma‐ tive model of the law, which is the purpose or behaviour which the legisla‐ tor strives for. A law is, finally, efficient, if the contents do not exceed what is neces‐ sary to achieve the objective of the legislator.30 Means are efficient and proportional, if they are suitable, required, and acceptable to realize the common good. The implementation of legislation is mainly done by administration. Everybody has a right to a fair procedure. This principle is applicable to every administrative action and is the basis for a “Right to Good Govern‐ ment”.31 Far longer in existence is the Fundamental Right to Access to the Court, which includes fair and public hearing by an independent and impartial tri‐ bunal.32 However, far more important than administrative application and

28 Maria De Benedetto,`Italy`, in Ulrich Karpen and Helen Xanthaki (eds.), Legisla‐ tion in European Countries (n. 28) cit., 267 ff 29 Ulrich Karpen,`Efficacy, Effectiveness, Efficiency` cit., 295-313. 30 Art. 5 (4) TEU. 31 Art. 41 Charter of Fundamental Rights of the EU (CFR). 32 Art. 47 CFR.

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enforcement of laws by executive and judiciary is the compliance with legislation by the people or a group of addressees. This is the core of trust in regulation.33 To implement legislation properly and adequately today is often looked at as efficiency-management.34 The modern state has never “sufficient re‐ sources”! For compliance of the addressees, administrative offices or bod‐ ies have to obey legality, remove obstacles, seek for remedies against nonimplementation of legislation, and to produce effective pieces of sec‐ ondary legislation.35 The stimulus of administration36 are administrative acts, information, commitments, contracts, and planning. In all these activ‐ ities, administrative bodies have to take care of the law and the establish‐ ment of good administrative practice to establish trust in their behaviour. Administrators mostly have discretion to adjust their decisions to the pe‐ culiarities of a given individual case. An important element of trust in good implementing action of a law is the binding effect of administrative actions. They remain valid as long as they are not revoked or expire for other reasons.37 If an administrative act suffers from severe and obvious defects, it is void. An illegal act may be revoked, a legal act may be with‐ drawn only under important conditions, if the public interest prevails the individual interest in endurance. Protection of confidence may allow for a correction of legality in individual cases. On the other hand, legality is a limitation to confidentiality.38 In effect a balancing of interest is required. If voluntary commitment to regulation does not work effectively, it must be enforced, be it by administrative acts or by courts. Legal and fair procedures for enforcement are usually prescribed by statutory law. Gov‐ ernment and parliament seek for remedies against non-implementation of

33 Maria De Benedetto, `Regulating in Times of Tragic Choices` (2020) in The Regu‐ latory Review, www.theregreview.org, May 6, 2020. 34 Ulrich Karpen,`Efficacy, Effectiveness, Efficiency` cit., 304. 35 Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist cit.,14 36 High Level Group on Administrative Burdens (HLG), Cutting Red Tape in Euro‐ pe-Legacy and Outlook, Final Report (Bruxelles 2014). 37 Group Support to the Civil Service and Public Administrative Reform in Croatia, Draft Law On General Administrative Procedure of the Republic of Croatia, 2007, 74-78. 38 Beatrice Weber-Dürler, Vertrauensschutz im öffentlichen Recht cit., 153.

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legislation, clear and specific sanctions for non-compliance are required.39 In its mildest form, enforcement starts with appeals and warnings. Admin‐ istrative constraint follows. This is the competence of enforcement agen‐ cies (police and toll-administration). They release enforcement orders for monetary claims in many countries, according to their respective tax codes. For other duties of citizens, administrative constraints – like the re‐ placement, penalty payments and immediate constraints – are applied. These are the most obvious signals for people that abiding by the law is not only a democratic virtue, but a duty of citizens in a rule-of-law state. The last stage to correct governmental errors in regulation or to remove doubts of citizens in legal and fair treatment in their matters is judicial re‐ view by (administrative) courts.40 Court procedures guarantee equality be‐ fore the law and non-discrimination. People enjoy equal access to justice, an independent, impartial prosecution of the matter, independent of the Bar as well, and a fair trial.41 In most European countries, constitutional justice has been introduced (by specialized Constitutional Courts or by Supreme Courts).42 They provide for the control of norms, solve disputes on the distribution of competence, and ensure the granting of constitution‐ al fundamental freedoms and rights. Judge-made law, case law, which is stable over time, is one of the most important elements of trust, protection, and confidence.43 Successful methods for interpretation of law contribute to this stability. The end of procedures, appellate end review, is a final de‐ cision: res judicata. Every citizen can trust that the case is closed.44 Confidence is a psychological and social characteristic of people. If citizens do not have confidence, they will not accept the role and function of institutions of the rule of law. There are many challenges for rule-oflaw institutions to abuse or misuse their mandates and powers: corruption, conflict of interests, illegal collection of data. These forms of mismanage‐

39 Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist cit., 14. 40 Arts. 47, 49 CFR; see also, Ulrich Karpen, Principles of Constitutional Interpreta‐ tion and adjudication (Hamburg University papers 2018). 41 Beatrice Weber-Dürler, Vertrauensschutz im öffentlichen Recht cit., 18. 42 Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist cit., 27. 43 Beatrice Weber-Dürler, Vertrauensschutz im öffentlichen Recht cit., 242 44 Philipp Kunig, Rechtsstaatsprinzip cit., 223

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ment, misconduct, lack of control, and dysfunctional governance45 need to be prevented at all costs. Education of officers and judges in professional and ethical standards is required. Beyond specific professions, a general atmosphere of lawful behaviour and good conduct must be created and, fi‐ nally, should become the general attitude of office holders. A realistic per‐ spective on these claims is, that public officials need to be paid sufficient salaries. Probably this is the first step for good government and common confidence in it. 5. In Need of Better Government! Citzens undoubtedly loose confidence in institutions and public office holders. However, the diagnosis has changed over the different phases of the current health crisis. But are we in a crisis of regulation, of administra‐ tion, of our democracy, of our state as a whole? Citizens certainly trust less in good governance these days. It is not easy to make such a state‐ ment. Historical turning points – crises – are difficult to diagnose for con‐ temporaries. We can not predict with certainty, which direction changes will take, what will be considered “outdated” and what will be termed “progressive”. Which criteria should we use? Which are the lines of changes?46 There are no arguments for a democracy coming to an end. It is true that people have become more sensitive towards regulations limit‐ ing their freedoms, even if it is for the common good. And it is also true that they have become more demanding towards an immediate realization of their political wishes as a “product on demand”. Finally, in recent con‐ stitutions people receive more and more instruments of participation. Pla‐ ton discussed these developments of democracy as “insatiability of people, a deterioration of democratic forms of government”. In “Politia”,47 he wrote: “By much participation, the soul of citizens becomes so tender that – even if a minimum of constraints is put on them – they become unwill‐ ing and don’t tolerate that. And finally they don’t care about laws, so that

45 G8-Experts Conference on the Rule of Law, Documentation (German Federal For‐ eign Office, Berlin, 2007) 18; Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist cit., 19. 46 Christoph Möllers, Gewaltenteilung (Mohr Siebeck 2005) 117. 47 Joannes Burnet (ed.), Platonic Opera, Politeia (Clarendon 1992), vol. IV, seat 1, margin n. 563.

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in no way anybody should be their master”.48 A look at possible alterna‐ tives of democracy is frustrating. Do the people prefer an authoritarian and centralistic system of government, a direct democracy, an expertocracy? Colin Crouch sees a government of Big Business arriving.49 And putting focus on another fact: in Germany, just as an example, more than 25,000 citizens are deputees in the EU Parliament, in the Fed‐ eral Diet, and in the respective parliaments of the 16 Federal States, as well as in municipal and local councils.50 Does that speak against a repre‐ sentative democracy? It is time to dedramatize. There is no emotional distance between citi‐ zens and republic and democracy. However, a disappointment about – and a lack of trust in – the political actors. Confidence in the actors urgently needs to be re-established. It is, however, easy to blame politicians. They are our co-citizens and have received their education in our society. It is true, however, that one needs to find – as always – the best people to rep‐ resent us. But “Better Governance” in improving institutions and proce‐ dures should be added. Elections and political parties should take care of new techniques, like digital ones. All procedures must allow for competi‐ tion and be participative and transparent. Assemblies of citizens must be possible on a local level. Interest groups are important factors of pluralism and must be involved as much as possible, because they are knowledge‐ able of the matters to be dealt with. Legislation in times of crisis (now Covid-19) is a challenge for parlia‐ ments, their organization, and procedure. Legisprudence is called upon to assist in making practical differentiation between traditional long-lasting statutes and emergency law.51 The building of confidence should be seen as an important sub-item of the efforts to work on the efficacy, effective‐ ness, and efficiency of the administration. In fact, all efforts to bring statutes in line with the rule of law, and, in turn, to make the office holders correctly apply the law in line with the rule of law, should always – and perhaps primarily – be seen as necessary preconditions for regaining trust.52 Confidence gallops, but comes on foot.

48 49 50 51 52

Translated by the author. Colin Crouch, Postdemokratie cit., 45. Ibid., 29. Angela Schwerdtfeger, Krisengesetzgebung cit., 385. Venice Comission, European Commission for Democracy Through Law, Rule of Law Checklist cit., 19.

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Legislation as a Tool for Trust and Confidence in the European Union Helen Xanthaki

Summary: 1. The Issue – 1.1 STEP 1: Identifying the Users of EU Legisla‐ tion – 1.2 STEP 2: Setting the Pitch of EU Legislative Texts – 1.3 STEP 3: A Better Structure for EU Legislation - 2. But Why Change? Trust and Loyalty - 3. Conclusions 1. The Issue Brexit shook the EU to its core. It is still viewed as a negative page in the history of the EU, and this is understandable: after all, it is a failure of the organisation to retain one of its financially powerful Member States. What surprised most spectators to the pre-referendum political theatre was the unprecedented extent to which facts were distorted on both sides of the Brexit debate. One wonders, how this series of inaccuracies and false in‐ terpretations was allowed to develop and ultimately prevail. Most of the debate, at least in the UK, revolved around the regulatory interventions of the EU, which populist voices interpreted as allegedly lu‐ dicrous unilateral assertions of regulatory power over the unsuspected UK governments and UK citizens. There was no reference to, or indeed chal‐ lenge of these allegations with reference to the benevolent objectives of the EU’s regulatory interventions in the life of its citizens, the regulatory rationale behind the EU’s “annoying” measures, and the Member States’ role as actors initiating and agreeing, at least in their majority, to the regu‐ latory interventions and their resulting measures in question. Perhaps more unexpectedly than the rhetoric itself was the complete si‐ lence of the EU and its supporters both in the crisis of the pre-Brexit de‐ bate in the UK but, even more surprisingly, in the long history of the de‐ velopment of this rhetoric over the last decades both in the UK and in oth‐ er Member States. This lack of an answer, persuasive or not, in the severe allegations of mis-regulation catapulted against the EU allowed these ar‐ guments to be taken as factual both in the Leavers’ camp but, to a degree, 83

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in the undecided. Hence the pro-Brexit vote. It would not be unfair to state that, ultimately, some pro-Brexit votes could have been gained by the Re‐ mainers by means of a trustworthy antilogue. Some voters would have been swayed by a narrative asserting the added-value offered to EU citi‐ zens by EU regulatory interventions,1 the benevolent rationale behind them, and the fact of their support by UK governments which, having vot‐ ed for them in the first place, now presented as their vehement accusers. The question is, by what channels can the EU replace populist voices, and start speaking to its citizens directly, thus giving them the truly benev‐ olent and, on balance, successful story of EU regulation.2 The hypothesis of this chapter is that the EU, as any modern regulator, can participate to the political dialogue by addressing its citizens directly through its legisla‐ tion. In other words, the EU can use its legislation to tell its own story di‐ rectly to its citizens, thus regaining 3 their trust,4 their support, and their ac‐ tive participation to EU integration.5 The use of legislation as a means of communication of the regulatory message to citizens has been effected by modern regulators and legisla‐ tures in the Member States and beyond. It lies on the basis of the world‐ wide calls for legislative simplification, for user testing, for accessibility of legislation, and ultimately for the prevalence of the rule of law in the sphere of legislating. The EU can easily ride on the experiences of its Member States, and benefit from the hindsight offered by their experi‐ ences. Thus, the road map to establishing trust and loyalty to the EU and its regulatory interventions via a reform of the EU’s legislative communi‐

1 For support to the argument that alerting EU citizens to their personal benefit from the EU can change attitudes and trust, see Antonina Bakardjieva Engelbrekt, Niklas Bremberg, Anna Michalski, and Lars Oxelheim, Trust in the European Union: What Is It and How Does It Matter?’ in Antonina Bakardjieva Engelbrekt, Niklas Brem‐ berg, Anna Michalski, and Lars Oxelheim (eds.), Trust in the European Union in Challenging Times (Palgrave Macmillan 2019), 1, 19. 2 See Linda Berg ‘Citizens’ Trust in the EU as a Political System’ in Antonina Bakardjieva Engelbrekt, Niklas Bremberg, Anna Michalski, and Lars Oxelheim, Trust in the European Union in Challenging Times cit., 65, 87. 3 On the end of trust to experts and regulators, see Tom Nichols, The Death of Exper‐ tise: The Campaign Against Established Knowledge and Why It Matters (Oxford University Press 2017). 4 See Russel J. Dalton, Citizen politics: Public opinion and political parties in ad‐ vanced industrial democracies (Sage Publications 2013) 6. 5 For an analysis of the hypothesis in great detail, see Jurate Vaiciukaite and Helen Xanthaki, Better Legislation and the EU (forthcoming, Elgar Publishers).

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cation can be based on the existing methodology of regulatory reform. This has been expressed in the EU’s own Better Regulation Agenda, which has yet to be applied to the EU’s own legislative policy. Let us explore the roadmap to loyalty and trust step by step.6 1.1 STEP 1: Identifying the Users of EU Legislation7 A prerequisite of any decision on the most appropriate method of instilling trust and loyalty to the EU via direct legislative communication with EU citizens is the identification of the EU’s legislative audiences: in other words, before taking any decisions on the most effective route for estab‐ lishing a direct line of communication from the EU to its citizens, it is im‐ perative to establish which are the current legislative audiences of EU leg‐ islation. If EU citizens already read EU legislation, then the channel of communication is already established, and what remains is the attribution of directness to the regulatory message. If legislation is not currently read by EU citizens, then the EU has to establish the channel of communication first, and then proceed with changes in the regulatory message. Establishing the legislative audiences has surfaced as a crucial set of empirical data in modern legislative research after the 2013 Good Law ini‐ tiative led by the UK’s National Archives in cooperation with the UK’s Office of Parliamentary Counsel, the Sir William Dale Centre for Legis‐ lative Studies, and the University of Cambridge. The project was amongst the first to offer validated empirical data on the real users of UK legisla‐ tion, their profiles, and their usages of legislative texts. A survey of 2,000,000 users of legislation in the UK over a period of one month led to the identification of the three main categories of legislative audiences. These are lay persons reading the legislation to make it work for them, so‐ phisticated non-lawyers using the law in the process of their professional

6 See Helen Xanthaki, ‘Using Better Regulation as a Methodology for Achieving Better EU Legislation – A First Approach’ (2019) ZEI Discussion Paper, ZEI (Cen‐ tre for European Integration Studies, Bonn University), Radbout University, C256/2019, 7-20. 7 For the generic doctrine on this topic, which is here applied specifically to the EU, see Helen Xanthaki, ‘The limits of legislation as a product’ (2018), in Hukim – The Israeli Journal on Legislation, 11, 153-172.

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activities, and lawyers and judges. In more detail in the UK there are three categories of users of legislation: a) Lay persons, without legal or topical sophistication, who seek answers to questions related to their personal or familial situation; the ‘Heather Cole’ persona represents about 20% of users of legislation (User Group 1); b) Non-lawyers, without legal but with topical sophistication, who use legislation in the performance of their professional tasks (for example, law enforcers, human resources professionals, or local council offi‐ cials); the ‘Mark Green’ persona of the survey represents about 60% of users of legislation (User Group 2); and c) Lawyers, judges, and senior law librarians, with both legal and topical sophistication; the ‘Jane Booker’ persona represents about 20% of users of legislation (User Group 3). The significance of the survey cannot be understated. It provides, for the first time in European legislative research and practice, rich empirical evi‐ dence from the huge sample of 2,000,000 monthly visitors of www.legisla tion.gov.uk. The survey destroys the myth of the past that legislation is allegedly only used by legal professionals. In fact, legal professionals are very much in the minority of users, although admittedly their precise per‐ centage may be underrepresented in this survey of the free electronic database of UK legislation, since legal professionals would be expected to use richly annotated and currently updated subscription databases rather than the free government database surveyed by the project. Whatever the exact percentages of each category are, there is now significant empirical evidence that legislation speaks to three distinct groups of users with di‐ verse legal and topical awareness and with diverse interest in the precise regulatory messages included in legislative texts. Each legislative audi‐ ence seeks different usages in legislation, as it requires answers to differ‐ ent sets of questions. Moreover, each legislative audience has different ca‐ pacity to understand the topic/subject of the legislative text and the work‐ ings of the law and its texts.8 Of course, application of these conclusions to the EU cannot be auto‐ matic. Ideally, a similar survey would provide accurate data on the EU le‐ 8 For an analysis of the survey and the application of its findings in legislative draft‐ ing in general, see Helen Xanthaki, Drafting Legislation: Art and Technology of Rules for Regulation (Hart Publishers 2014).

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gislative audiences, their needs, and their levels of topical and legal so‐ phistication. But there is no relevant study applied to EU legislation. And so application can only be undertaken via qualitative methods. Historical‐ ly, EU legislation has been labelled as a diplomatic law, addressed to Member States. This was an accurate classification of EU legislation in the early stages of European legislative history. However, the establish‐ ment and further development of the principle of direct applicability and direct effect of EU legislation question the accuracy of the assumption that EU legislation continues to be addressed solely to Member States. As EU citizens may, and quite often do, rely directly on EU legislative texts to ex‐ ercise their EU derived rights and invoke them before their national courts, EU legislative texts are now directly addressed to EU citizens as much as the Member States. Moreover, the prevalence of copying the text of EU legislation verbatim as a method of transposition of EU legislation into national law means that the EU legislative text is not only one of the sources of legislative communication but, de facto, the only source of le‐ gislative communication to EU citizens. Let us explore these statements further.9 There is no doubt that Member States and the national authorities re‐ main a solid user group of EU legislation. They are entrusted and bur‐ dened with the task of providing the administrative framework for the ap‐ plication of EU legislation at the national level. The officers of national authorities as individuals and representatives of their organisations may not necessarily have legal training but they certainly have great sophistica‐ tion both in the subject matter and in handling EU legislation. On that ba‐ sis, they would be classified as members of User Group 2. Lawyers and judges are equally certainly users of EU legislation. They are entrusted and burdened with the task of interpreting and applying EU legislation before the national and European courts. They have expert topi‐ cal and legal sophistication in EU legislation. On that basis, they would be classified as members of User Group 3. The question is, whether EU legislation is actually used by lay users. In other words, is there a User Group 1 for EU legislation? The answer can only be affirmative. As stated above, the principles of direct applicability and direct effect have led to the de facto creation of direct reliance of EU 9 See Helen Xanthaki, ‘Technical considerations in harmonization and approxima‐ tion: Legislative drafting techniques for full transposition’ in Mads Andenas (ed.) Theory and Practice of Harmonisation (Edward Elgar Publishing 2012), 536-550.

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citizens to EU legislative texts. In turn, this has led to the de facto creation of a User Group 1. A counterargument here could be that, although the principles have indeed led to reliance on EU texts before the national au‐ thorities and the national courts, this is in practice led or undertaken by le‐ gal representatives of EU citizens. Perhaps it is User Group 3 that puts the principles to effect by advising EU citizens and invoking EU legislation in cases before the national courts. Even if this position is accepted, the reali‐ ty of transposition via copying the EU legislative text verbatim has in‐ evitably led to the usage of national legislation with EU legislative provi‐ sions by Group 1 users. In others words, even if there are no Group 1 users of the EU legislative texts in their original format, there are definitely Group 1 users of the copies of EU legislative texts in the national transpo‐ sition format. And, although in the past the EU could be forgiven for rely‐ ing on Member States to bring the text to its national users creatively, there is now enough evidence to pull that safety net under the feet of EU institutions altogether. On that basis, there is little doubt that EU legisla‐ tion already has a group of lay users that read EU legislative texts (as they stand or as copied when transposed) in order to understand what rights the new legislation is offering them or what obligations it is imposing to them. This is precisely the already established channel of direct communica‐ tion with EU citizens that the EU can use in order to regain the ground now occupied by populist regulatory rhetoric. EU legislation already speaks to EU citizens. By reforming the legislative texts, the EU can con‐ vey the EU regulatory messages accurately, without allowing space to populist anti-EU narratives. What is required is a text that talks to EU citi‐ zens directly. A user-friendly text with a language that EU citizens under‐ stand can entice the attention of those of its citizens that currently resist EU legislative texts. 1.2 STEP 2: Setting the Pitch of EU Legislative Texts Currently EU legislation, as a diplomatic law, is designed and expressed as a set of instructions to national authorities on legislative reform and on the method to put that to effect. In that sense, current EU legislative expres‐ sion is no longer fit for purpose. To speak to its three User Groups, and most crucially to User Group 1 of EU citizens, EU legislative language re‐ quires radical reform.

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The EU has participated in the plain language movement for a number of years, starting with the SLIM initiative (Simpler Legislation for the In‐ ternal Market) and through repeated confirmation of simplicity as one of the cornerstones of EU legislative drafting in all of its Inter-Institutional Guides for legislative drafting. Indeed, the application of plain language, a movement that prevailed in legislative theory and practice over the last fifty years, has produced results also in EU legislation. However, it has now been abandoned and evolved onto an easification movement. Easified language is language led by and adapted to the relative sophistication of the specific user groups to which the specific text is intended to speak. Easified language applies and nurtures the diversity of topical and legal sophistication amongst the three main legislative audiences identified in the Good Law initiative. Plain language texts are merely bi-dimensional: the text can be either plain or complex. In contrast, easified language adds the dimension of relativity in the understandability requirement of a plain language text. Plain for whom? This leads to a multifaceted language that communicates the relevant regulatory messages to each User Group in the language that its particular level of topical and legal sophistication per‐ mits. These innovations in linguistic expression seem to be ignored at the EU level. Instead of reaching over to the language of the specific User Group, the EU has resorted to the introduction of an EU specific language, which is twice removed from its users (namely “Brussels English” on top of legal English). It would not be unfair to say that current EU legislative language is not fit for purpose. Effective communication of the EU regulatory message to all three User Groups of EU legislation requires relativity of the EU legis‐ lative expression that must be pitched to the level of topical and legal so‐ phistication of each User Group. Effective communication of the EU regu‐ latory message as a vehicle of instilling trust to the EU demands easifica‐ tion. But easification does not apply exclusively to the legislative expression. Simply changing the choice of words used in the text does not guarantee receipt of the communication by User Groups, and most significantly by the target User Group 1 of EU citizens. For effective easification, structure of the legislative text plays as significant as role as legislative expression.

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1.3 STEP 3: A Better Structure for EU Legislation Easification of the EU legislative text involves the pitching of each regula‐ tory message to the level of topical and legal sophistication commanded by each of the three User Groups of EU legislation, namely lay EU citi‐ zens, national authorities, and EU legal professionals. But each User Group has a diverse level of such sophistication. Could that lead to the need to introduce three versions of the same legislative text, structured and expressed for the purposes of communicating with Group 1 or Group 2 or Group 3? This would be a recipe for disaster, on moral, ethical, constitutional, and practical grounds. There are evident rule of law issues, issues of interpretation between versions, identifying which version corresponds to each user, using that version as opposed to the one selected by the user, who subjects each user to their corresponding per‐ sona, ethical and moral consequences of the application of a diverse ver‐ sion for each user. And the parallel existence of three different texts could be counter-productive: users currently choose to use the complex but offi‐ cial legislative text over any of the many interpretation aids offered by governments. If the plethora of attractive user-friendly manuals and policy documents are shunned in favour of legislative texts, what makes it proba‐ ble that users will go to the simple Heather Cole text as opposed to the le‐ gal Jane Booker one that reflects users’ perception of legislation? Thus, remaining with a single text is really the only option. But this absolute re‐ quirement of a single text speaking to three diverse legislative audiences is exactly where easification, just as plain language before it, can suffer in legislative practice. Thankfully, the Good Law project demonstrated with strong empirical evidence that not all legislative user Groups are interested in the same regulatory messages or seek answers to the same questions when reading legislation. Each user group has its individual requirements for legislative information that are distinct from those of the other user groups. Identify‐ ing the needs for legislative information for each User Group at a legis‐ lative provision (Article), rather than legislative text (Directive or Regu‐ lation), level would allow EU drafters to imitate oral communication, and pitch the EU legislative text to the specific abilities and requirements of the User Group to which the provision is speaking. Drafters of legislative texts can now begin to think what regulatory or legal message is relevant to each group, and structure the text accordingly.

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This formulates the basis of the layered approach to structure,10 which promotes the division of legislation into three parts, corresponding to each of the three profiles of legislative users. Part 1 can speak to lay persons: the content is limited to the main regulatory messages, thus conveying the essence of law reform attempted by the legislation, focusing gravely on the information that lay persons need in order to become aware of a new regulation, to comply with new obligations, or to enjoy new rights. Part 2 can speak to non-legally trained professionals who use the legislation in the course of their employment. Here one can see scope for further detail in the regulatory messages introduced, and for language that is balanced [technical, yet approachable to the professionals in question]. Part 3 of the legislation can then deal with issues of legislative interpretation, issues of procedure, and issues of application, in a language that is complex but not quite legalese, as there is nothing to prevent all groups from reading all parts.11 Having established that EU legislation is addressed to three User Groups, the layered division of EU legislation becomes much more visi‐ ble. In fact, it tends to fall clearly in the lap of EU drafters. In application to the layered division presented above, Part 1, addressed to Group 1 lay users, can contain the main regulatory messages, namely, a. why legislate, b. how this benefits citizens and enterprises, and c. what are the awarded rights and imposed obligations. These must be expressed concretely, sim‐ ply, and accurately. For example, Regulation (EU) 2017/920 can start with “This Regulation relieves EU citizens from charges when phoning abroad within the EU”. The rather unfortunately named round cucumbers and bent bananas EC Commission Regulation No 2257/94 (now repealed) could start with “1. This Regulation prohibits the cultivation of those species of bananas and cucumbers that are prone to disease. 2. The objec‐ tives of this Law is: a. to enhance the income of banana and cucumber farmers by 20% over a period of 3 years; and b. to protect crops from dis‐ ease, thus saving the economy 2,000,000 Euros per year.”. Placing these crucial regulatory messages in the very beginning of the text, when the at‐

10 See Helen Xanthaki, Drafting Legislation: Art and Technology of Rules for Regu‐ lation cit., 77-79. It must be noted that the term, and to a certain extent, the con‐ cept is attributed to John Witing, Tax Director at the Tax Simplification Office. I am very grateful to John for his inspiration and the generosity with which he has shared it with me. 11 See Helen Xanthaki ‘The limits of legislation as a product’ cit., 153-172.

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tention span of lay users is in its prime time (think advertising) would pro‐ mote awareness of EU citizens on what the EU is offering them, short or longer term, why legislation is necessary, and what the new provisions are about. One final point for Part 1 could be the inclusion of the effect of the EU text on EU citizens. This would require the identification of the date of entry into force, and an explanation of direct applicability and direct effect in lay terms. For example, “This Regulation is the law in all EU Member States after 31 December 2019, even without further national implementa‐ tion”. Or “This Directive is the law in all Member States after 31 Decem‐ ber 2019, and EU citizens can rely on it before the national courts even if their state has not legislated any further”. Or “Articles 1, 3, 5, and 10 of this Directive are the law in all EU Member States after 31 December 2019, and EU citizens can rely on these provisions before the national courts even if their state has not legislated any further. Articles 2, 4, and 5 of this Directive are the law in the EU but EU citizens cannot rely on them before their national courts without further legislation in the Member State”. Part 2, addressed to Member States and national authorities, can include the detailed list of regulatory messages. The content, and even language, here would not change from the existing EU legislation. Perhaps it would make sense to divide in separate lists the duties of Member States and their powers: Member States must, as opposed to Member States may. This will facilitate complete transposition, by identifying in a clear list the obligations of Member States. This is where national authorities can focus, and these can be replicated in correlation tables like the one currently used by the Commission. Duties could be enhanced by including specific na‐ tional implementation action, such as the identification of an agency to ad‐ minister the law, the provision of enforcement mechanisms, and any moni‐ toring requirements. This would promote effective implementation of the EU legislation at the national level and effective monitoring of implemen‐ tation at the EU level. Of course, as duties are necessary elements for the completion of the regulatory package, duties must come with a clear dead‐ line. This is already provided for as the transposition deadline. But taking it away from the variety of dates at the end of the EU text would both draw Member States’ attention to what they are expected to do by that time, and it would alleviate the confusion of lay users on the date of entry into force of the EU legislative text. Powers of Member States, namely transposition options, could be a new element in EU legislation. They are currently found in Transposition Guidance. The advantage of placing them 92

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in the text of the legislation would be that the choices of Member States would be limited to the ones included in the legislation. This could dra‐ matically prevent gold-plating, and would enhance a level of harmonisa‐ tion by steering Member States to manageable groups of trends in legisla‐ tion and practice. Part 3, addressed to EU and national lawyers and judges, can include everything that is left outside of Parts 1 and 2. Recitals, definitions, legal issues, issues of interpretation, reviews and sunset clauses can be collected in Part 3. This would involve simply transferring these types of provisions from the beginning of the EU texts to the bottom. This is the part of the legislation, where drafters can use expert terminology freely provided that the rule of law is still served. Applying the layered approach to EU texts may seem a daunting task. But in practice, it proves to involve a rather minor tweak in the current structure of EU legislative texts. It involves creating a new Article 1 with the three regulatory messages requested by Group 1 lay users: why, how, and what, in concrete terms. Then dividing current content into duties and powers for Member States and authorities. And transferring recitals, defi‐ nitions, and interpretation from the start of the text, and bundling them to the bottom along with the rest of final provisions. Not a bad price for en‐ hanced effectiveness, in delivery of Better Regulation. 2. But Why Change? Trust and Loyalty So far, this chapter has shown why EU legislative language and structure are no longer fit for purpose. EU legislation continues to be viewed as droit diplomatique, but it is no longer that. Via direct applicability and di‐ rect effect, EU law communicates directly with EU citizens, offering them direct rights and imposing direct obligations. In any case, most MS trans‐ pose by copying the EU text. Populists interpret EU legislation as a tool for Brussels’s alleged imposition to national sovereign jurisdictions. And we continue to perpetuate the image of this imposition via complex, im‐ personal, technical legislative texts, which block EU citizens from becom‐ ing participants to their legislative solutions, the regulatory goals, and ulti‐ mately the EU ideal and vision. Can we change that? Much along the lines

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of Kalypso Nicolaides’s paradigm of sustainable integration,12 we must view legislation as a method of communication with EU citizens directly. We can share the long term vision of the regulators, explain in concrete how this legislation contributes to the achievement of regulatory the vi‐ sion, and ask EU citizens to change their behaviour in an admittedly in‐ convenient yet worthy, in the long term, effort to achieve OUR common super goal. This will enhance implementation of EU law. But it goes even further. Legislation in that sense can re-establish the lost channel of communi‐ cation between EU citizens and the EU, and can render EU citizens partic‐ ipants to EU regulation and ultimately to the EU’s long-term vision. I be‐ lieve that by sharing the EU’s legislative vision in this way, we can silence populist arguments, and we can enhance legitimacy13 and demoicracy in the EU. Implementation of EU law will be a conscious citizens choice (to the degree that legislation can be that) for the long-term benefit of the EU and its peoples. In the history of polity and policy of the EU and its predecessors, the friction was traditionally between those who sought wider versus deeper integration. The choice seems to have been whether the EU would benefit from widening the net of its policy coverage versus whether it should stop expanding and start performing vertically within the areas of policy cov‐

12 See Kalypso Nicolaïdis, EU 2.0? Towards Sustainable Integration (Open Democ‐ racy 2010) at https://www.opendemocracy.net/kalypso-nicola%C3%AFdis/ project-europe-2030-towards-sustainable- integration; see also Kalypso Nicolaïdis, ‘Sustainable Integration: Towards EU 2.0? – The JCMS Annual Review Lecture’ (2010) in Journal of Common Market Studies (Annual Review), 48, 21; Kalypso Nicolaïdis, Project Europe 2030: Reflection and Revival (Open Democracy 2010) at https://www.opendemocracy.net/kalypso-nicola%C3%AFdis/project-europe-20 30-reflection-and-revival-part-one. 13 See Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’ (2008) in Regulation & Governance, 2, 137; also see Kristina Murphy et al, ‘Nurturing regulatory compliance: Is procedural justice effective when people question the legitimacy of the law?’ (2009) in Regulation & Governance 3, 1.

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ered already. In a beautifully diverse EU, the answer was never clear. The dilemma continues to be replicated.1415 However, the choice between wide versus deep EU integration seems to be unnecessarily narrow. There can be a third option that simply transfers the strategic tools for the future of the EU to a different basis. So, instead of focusing on the microcosm of the strategic means by which flourishing of the EU can be achieved (wide versus deep integration), perhaps it is time to take a step back, and look at the goal itself, by agreeing what ex‐ actly this flourishing future can be. The EU, as a union of states and peo‐ ples, and of course as an organisation, can only aim to achieve its longevi‐ ty and its sustainability. In other words, the EU’s measure of future suc‐ cess can only really be whether it survives the constant change of interna‐ tional and national environments within which it is placed, and whether it sustains its political, social, and economic following. And here lies the an‐ swer to the eternal question of wide versus deep integration: it does not matter! What matters is whether the strategic means selected will actually bring success with sustainability and longevity.16 Whether this can be achieved via actions that widen the EU’s regulatory coverage or deepen its regulatory grasp is really neither here nor there. In fact, there is no reason to promote, or indeed to exclude, either of the two. Functional regulation uses the most appropriate means to achieve the regulatory super goal: and for the EU, as indeed every union and organisation, the super goal is sur‐ vival and prosperity for the ideal that it represents, for the states and peo‐ ples that are its members, and for the organisation that administers the ide‐ al and serves the membership. The EU remains a union of nations and states, who choose to come to‐ gether in order to promote their common goals. The Treaty of Lisbon clearly sets the aim of the Union: to promote peace, its values, and the

14 On that point, see John Braithwaite and Toni Makkai, ‘Trust and Compliance’ (1994) in Policing and Society , 4, 1; Valerie Braithwaite and Margaret Levi (eds), Trust and Governance (Russell Sage Foundation 1998); and Tom R. Tyler, ‘Trust and Law Abidingness: A Proactive Model of Social Regulation’ (2001) in B.U.L.Rev., 81, 361. 15 See Francis B. Jacobs, The EU after Brexit (Palgrave Studies in European Union Politics 2018) 9. 16 See Kalypso Nicolaïdis, EU 2.0? Towards Sustainable Integration cit., Kalypso Nicolaïdis, ‘Sustainable Integration: Towards EU 2.0? – The JCMS Annual Re‐ view Lecture’ cit. and Kalypso Nicolaïdis, Project Europe 2030: Reflection and Revival cit.

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well-being of its peoples. The EU’s legitimacy, and power, comes ulti‐ mately from its citizens, for the benefit of whom the EU was created and continues to function. So, there is little doubt that the constituting Treaties envisage a benevolent organisation servicing the union and its peoples. The pursuit of these benevolent policy super-goals is undertaken by means of regulatory choices. The EU identifies areas, within its compe‐ tences, where common regulatory results are best achieved via common action. Once agreement on the policy aim is offered by the Member States, the regulatory analysis of the current regulatory status in the Mem‐ ber States is explored, and common trends are identified. On the basis of the juxtaposition of this survey and analysis against the aim to be achieved, policy options are put forward and consensus is gauged amongst Member States. If consensus is present, the EU proceeds with its regula‐ tory process. The most appropriate regulatory tool is selected, with legisla‐ tion being, at least in theory, a solution of last resort. If necessity and sub‐ sidiarity allow, legislation is put forward as a tool for regulation. This starts the ball of law-making rolling. So, also in the EU, legislation is simply a tool for regulation. It is a mere mechanism that EU regulators use to achieve the desired regulatory results. For the purposes of achieving the desired regulatory results, thus reaching efficacy of regulation, EU law-makers communicate the regula‐ tory message to all of the nations and peoples of the EU. They express what rights and obligations EU citizens acquire by virtue of the legislative text, and they state what modification of action or behaviour is sought by the EU for the purposes of achieving efficacy of regulation. This commu‐ nication is crucial. It is only through legislation as a channel of communi‐ cation between the EU and its legislative users that reform requirements are expressed. If they are conveyed in an accessible manner, the users may understand them, and, in turn, may decide to actually put them to effect. Implementing the regulatory reforms en mass leads to the successful exe‐ cution of the selected regulatory mechanisms. This allows the latter to per‐ form as envisaged by the EU regulators. And so, if their regulatory strate‐ gy was correct, they will reap the desired regulatory results. So, accessible communication of the new requirements to the users of EU legislation is absolutely crucial for the EU’s regulatory success. As the latter constitutes the main means of EU governance, it is absolutely crucial for the long term sustainability of the EU as a union of states and peoples. Traditionally, this crucial communication is entrusted to Member States, which, via the transposition of EU measures, communicate the EU 96

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regulatory message and its implementation in the Member State to their own nationals. However, the conceptual basis of this traditional EU set-up is no longer current. EU law is often still viewed as droit diplomatique, namely an expression of diplomatic success in achieving consensus via compromise. For a long time, this is indeed what it was. But this is no longer the case. EU law has evolved. First, the principle of direct applica‐ bility now renders EU legislative texts binding as they stand: there is no intermediary and no interpreter of the regulatory message. This is the law for Member States and EU citizens, and it communicates the regulatory message via the legislative expression that it, rather than national imple‐ menting measures, contain. Second, the principle of direct effect has em‐ powered EU citizens to invoke EU legislation before the national courts, thus pushing out national implementing legislation as an intermediary. So, on the basis of direct applicability and direct effect, EU law is not diplo‐ matic law at all. It is now not just a source of national legislation but, more importantly for the purposes of this book, the legislative expression of the EU’s regulatory message to EU citizens directly. Third, and irrespective of direct applicability and direct effect, a pragmatic assessment of transposi‐ tion shows that the EU legislative expression is replicated verbatim in most transposition instruments. So, via the frequent use of copying rather than elaboration in transposition, Member States simply copy the EU text, thus eliminating themselves from the envisaged role of intermediary in the communication process between the EU and its citizens. It is realism in the necessities and needs for a sustainable EU (rather than a response to a crisis) that calls for a reform of EU law-making as an initiative and as a policy, to reflect the current usage of EU legislative texts as the final legislative text for EU regulation both at the EU and the national levels. In other words, the demand for corrective, strategic, refor‐ mative action in the EU’s law-making strategies and procedures derives directly from the now blindingly marked change in the usage of EU legis‐ lative texts. They are no longer just a generic expression of EU regulatory goals that national law-makers and drafters nationalise and express for the purposes of their concrete national regulatory needs. Instead, EU legis‐ lative texts are expected to serve as the often unique EU/national legis‐ lative expression of the EU’s regulatory effort at EU and national levels. This is schizophrenic. A single legislative text is now, in theory and prac‐ tice, called to express and serve both the generic EU regulatory results and the diverse national regulatory sub-results of 27 Member States. From a legislative drafting perspective, this is an impossible task, especially since 97

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the real pursuit is the actual achievement of regulatory results rather than the passing of a legislative text. And this impossible task becomes even more unrealistic, if EU law-making continues to be bound by processes and traditions of law-making and legislative drafting that are no longer fit for purpose: the aim to be achieved has changed and the environment within which the legislative text is to function has also changed dramati‐ cally from a supra-state union to a supra-state union plus 27 Member States.17 There is little doubt, therefore, that in order to support and incite sus‐ tainability, the EU must proceed to a reform of its law-making approaches and tactics in order to respond to the now changed usage of its legislative texts. However, apart from the functional necessities exposed above, there is a second, equally important, argument for EU legislative reform. It is again one directly linked with sustainability, and it relates to the communi‐ cation of the EU’s regulatory messages as carriers of information on the rationale and rationality of its regulatory decisions. Let us explore that fur‐ ther. Legislative texts aim to contribute to the regulators’ desired regula‐ tory results. They do so in two main ways. First by detailing how the users’ behaviour must be changed in order to participate in the selected behavioural change, how this change contributes to the selected regulatory mechanisms, and how this feeds to the desired regulatory results. And sec‐ ond, perhaps even more importantly, in narrating the above regulatory sto‐ ry, they offer the user an understanding of the regulatory aim and entice them to undertake often burdensome action in order to achieve a longer term positive result. In other words, the expression of a beneficial ultimate regulatory aim cajoles the execution of the demands of the legislation, thus not only promoting regulatory success but, even more importantly, rendering users as participants to the regulatory effort. This sense of par‐ ticipation instils a sense of ownership of the regulatory effort, and creates a sense of trust to the regulators and loyalty to the regulating organisa‐ tion.18

17 See Helen Xanthaki, ‘Improving the Quality of EU Legislation: Limits and Oppor‐ tunities?’ in Sasha Garben and Inge Govaere (eds) The Better Regulation Agenda: A Critical Assessment (Hart 2018) 28-47. 18 For an expert analysis on the link between trust, trustworthiness, and legislation (at RIA), see Claudio M. Radaelli and Gaia Taffoni, ‘The trustworthiness test for Regulatory Impact Assessment and judicial review’, in this volume.

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Legislation as a Tool for Trust and Confidence in the European Union

If this structure is applied to the EU, then there is a second imperative for legislative reform. Reformed EU legislative texts can detail not just the demands of EU regulators but also the rationale behind them. They can of‐ fer EU citizens and Member States, as the collective demos of the EU, an understanding of the benevolent reasoning behind legislative measures. They can tell the EU’s regulatory story without possible distortion from national texts:19 namely why legislate, how this contributes to regulatory results, and what is the added value for citizens and states.20 This latter message is not being received from EU citizens. Only 34% of citizens saw a benefit in EU membership, against 71% amongst the European elites.21 The EU’s popular trust and its ability to handle crises is therefore suffer‐ ing, especially by those affected by the economic and other crises.22 In ad‐ dition, there is a generally reduced trust in political institutions and politi‐ cal actors both at the international and the national level.23 So, conveying the regulatory rationale in EU legislative texts can render EU citizens par‐ ticipants (rather than suffering pawns) to the regulatory process. It can cre‐ ate collective ownership of the regulatory aims. If these aims continue to be acceptable and shared between the EU and its membership, they can enhance loyalty to the EU as an ideal and as a union. And if the regulatory aims continue to be achieved, they can also enhance trust to the EU as an organisation capable of delivering the common aims to which EU citizens and EU Member States are now loyal.24 It is worth noting that in 2017 on‐

19 See Linda Berg ‘Citizens’ Trust in the EU as a Political System’ cit., 65, 87. 20 For support to the argument that alerting EU citizens to their personal benefit from the EU can change attitudes and trust, see Antonina Bakardjieva Engelbrekt, Niklas Bremberg, Anna Michalski, and Lars Oxelheim, Trust in the European Union: What Is It and How Does It Matter?’ cit., 1, 19. 21 See Thomas Raines, Matthew Goodwin, and David Cutts, The Future of Europe. Comparing Public and Elite Attitudes (Chatham House, The Royal Institute of In‐ ternational Affairs, June 2017). 22 See Sara B. Hobolt and Catherine de Vries, ‘Public support for European integra‐ tion’ (2016) in Annual Review of Political Science, 19, 413, 431. 23 See Russel J. Dalton, Citizen politics: Public opinion and political parties in ad‐ vanced industrial democracies cit., 6. 24 See Yuval Noha Harari, Sapiens: A Brief History of Humankind (Harvill Secker 2014).

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ly 42% of Europeans trusted the EU, as opposed to an alarming 58% that did not.25 So, there is plenty of scope for improvement there.26 3. Conclusions From this analysis it is now obvious that EU legislation can become a powerful tool for the enhancement of loyalty and trust to a sustainable EU ideal and membership, as well as for the enhancement of the EU’s regula‐ tory aims though which the EU ideal is fed and nourished. There is little doubt that an EU legislative reform can be painful and, at times, radical. But, provided that the tools for its achievement remain feasible, the justifi‐ cation for its pursuit seems to be loud and clear.

25 See Public Opinion in the European Union (Spring 2017), Standard Eurobarome‐ ter, 87. 26 On the lack of trust of Italians to the European institutions and the detrimental ef‐ fect of this to the COVID19 response, see Maria De Benedetto, ‘Regulating in Times of Tragic Choices’ (2020) The Regulatory Review, https://www.theregrevie w.org/2020/05/06/de-benedetto-regulating-times-tragic-choices.

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Improving Confidence in Legislation via Better Regulation Tools

The Trustworthiness Test for Regulatory Impact Assessment and Judicial Review1 Claudio M. Radaelli and Gaia Taffoni

Summary: 1. The Argument - 2. Scene One: Regulatory Impact Assess‐ ment - 3. Scene two: Judicial Review - 4. The Encounter Between RIA and Judicial Review - 5. Judicial Deference 1. The argument The motivation for this volume arises out of concerns about the crisis of confidence in legislation and how to address this issue. In this chapter we explore the potential of regulatory impact assessment (RIA) and judicial review in raising confidence in legislation in the EU Member States. This is a complex topic covering two broad procedural policy instruments, thus we will unpack it into manageable analytical steps. We consider RIA and judicial review separately, following a conceptual pathway that goes from impact assessment as procedure applied to the stage of policy formulation to the later stage of the review of law and regulations in courts.2 At the outset we will define RIA and unpack it as instrument and pro‐ cess. We will then enter confidence and identify the dimensions of trust that matter to RIA. When dealing with confidence in legislation, we will use the concept of trustworthiness – which means something or someone we trust in relation to a given property or set of properties. Trust is some‐ thing general, trustworthiness refers to a finite number of well-identifiable

1 We wish to thank Maria De Benedetto and Nicoletta Rangone for their precious comments on an early draft. Research for this chapter was funded by the European Research Council’s Project Procedural Tools for Effective Governance, Protego, grant number 694632. http://www.protego-erc.eu/. 2 RIA can be applied to different stages of the life-cycle of regulations and laws, for example it can be an effectiveness and efficiency test in the retrospective review of legislation. Here, however, we consider its predominant empirical use by govern‐ ments and regulators, that is, during the formulation of new policies.

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properties. Whilst surveys measure generic trust in legislation, govern‐ ments, institutions and the like,3 we reason on how RIA can make legisla‐ tion more trustworthy because it has the potential to create diffuse percep‐ tions of benevolence, integrity and expertise that makes policy formula‐ tion as process worth being trusted. We shall use rule-making and lawmaking interchangeably, because RIA in the EU is applied to both primary and secondary legislation.4 Hence, it is possible to build a plausible claim about RIA and confi‐ dence in legislation via the concept of trustworthiness as defined by Onora O’Neill.5 Basically, the claim follows from the theoretical framework pre‐ sented by Maria De Benedetto in chapter 1. Citizens develop trust in legis‐ lation as a function of expertise, benevolence and integrity. An argument often rehearsed among the advocates of better regulation6 is that RIA fa‐ cilitates the take up of science, risk analysis, economics and more general‐ ly evidence in the stage of policy formulation (this is the dimension of ex‐ pertise). RIA assures citizens and stakeholders that whenever their indi‐ vidual preferences are violated there are valid and explicit reasons (this is a manifestation of benevolence). It follows fair, transparent and consistent procedures (the integrity dimension). Indeed, RIA is first of all a proce‐ dure, more precisely an administrative procedure. Especially in the US lit‐ erature, RIA is framed as a system of controls, a fire-alarm that can be triggered by affected interests.7 Since confidence depends on both trust and control (one more time we follow Maria De Benedetto), RIA can in principle meet the standards for confidence in legislation.

3 See chapter 1. 4 See chapter 1 for a broad definition of ‘legislation’. 5 Onora O’Neill, ‘Linking trust to trustworthiness’ (2018) 26 International Journal of Philosophical Studies. 6 OECD, Regulatory Impact Analysis: A Tool for Policy Coherence, (OECD Publis‐ ing 2009). OECD, Recommendation of the Council on Regulatory Policy and Gov‐ ernance (OECD Publishing 2012). European Commission, Better Regulation: Tak‐ ing Stock and Sustaining our Commitment, (2019), https://ec.europa.eu/info/sites/in fo/files/better-regulation-taking-stock_en.pdf . European Commission, Communica‐ tion from the Commission to the European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions (2020) https://e ur-lex.europa.eu/resource.html?uri=cellar%3A7ae642ea-4340-11ea-b81b-01aa75ed 71a1.0002.02/DOC_1&format=PDF. 7 Terry Moe and S.A. Wilson, ‘Presidents and the Politics of Structure’ (1994) 57 Law and Contemporary Problems 1.

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However, this potential needs to be qualified by considering the empiri‐ cal manifestations of impact assessment across countries. We cannot gen‐ eralize to ‘one’ type of RIA tool and process. Even within the same coun‐ try, there are different types of RIA depending on the sectors, the capacity in government and regulatory agencies, and the issue. Across the EU, a number of studies have measured heterogeneity of RIA systems, purposes and implementation.8 Granted that we have to acknowledge this heterogeneity, the potential of RIA in terms of making legislation trustworthy depends on how it con‐ nects with other fundamental dimensions of the policy process. Here is where we enter judicial review. The rationale for this choice is simple. RIA intervenes when a rule is made, that is, in the arena of rule-making. Confidence in legislation, however, depends on how affected and diffuse interests can make their voice heard and their preferences taken into con‐ sideration both when a rule is being made and when the rule enters into force. After the RIA process is terminated and legislation enters into force, judicial review provides the other crucial arena where legislation has to meet yet again the standards of trustworthiness. Maria De Benedetto explains in chapter 1 that confidence in legislation (or lack thereof) depends on the full legislative cycle. Accordingly, we consider policy formulation and the review in court jointly. Procedures and actors are of course different, like in a play where the actors and stage change from one scene to the next. Policy formulation revolves around the production of evidence and reasons for regulatory intervention, often with evidence-based input provided by affected interests via consultation. Judi‐ cial review sees the affected interests acting in courts. The two arenas in‐ volved in RIA and judicial review are different in timing, actors and the binding effects of the final decisions – RIA supports but does not substi‐ tute the political decision to carry forward a policy proposal. A court’s de‐ cision is binding. Yet conceptually the connection is strong. Think about the life-cycle of a policy. The assessment of impacts and judicial review

8 Fabrizio De Francesco, Claudio M. Radaelli and Vera Tröger, ‘Implementing regu‐ latory innovations in Europe: The case of impact assessment’ (2012) 19 Journal of European Public Policy 491. OECD, Better Regulation Practices Across the Euro‐ pean Union (OECD Publishing 2019). Claudio M. Radaelli, ‘Diffusion without convergence: How political context shapes the adoption of regulatory impact as‐ sessment’ (2005) 12 Journal of European Public Policy 924. Jonathan B. Wiener, ‘Better regulation in Europe’ (2007) 59 Current Legal Problems 447.

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are two fundamentals ‘scenes’ in which our actors (the policy-makers) have to explain and accept responsibility for their actions in special de‐ signed fora – with consequences for the actions that are not appropriate or not legal. We explore how the two scenes interact by exploiting new evidence provided by the ERC project Procedural Tools for Effective Governance (Protego).9 In particular, we focus on whether RIA can be reviewed in court and the degree of deference of courts among the judicial review sys‐ tems of the Member States. We find that RIA and judicial review have po‐ tential in enhancing trustworthiness in legislation thanks to their trans‐ parency and control dimensions. This is even more significant when the two arenas interact. However we draw attention to how empirically the sit‐ uation on the ground in the EU is diverse, interaction between RIA and ju‐ dicial review is rare, and a common European approach is not traceable in the data. This is because of different legal traditions and inherent diversi‐ ties among EU administrative cultures. We proceed with the following steps. We will set the first scene framing the discussion about control and trust and disclosing RIA’s potential in building trustworthiness in legislation. We will then turn to the second scene of control, that of judicial review. We will focus on two aspects: the encounter between RIA and judicial review and the degree of deference of courts. Finally, we will reason on the importance of interplay between the two arenas and their relevance.

9 The ERC Advanced project Protego collected data in 2018-2019 on five policy in‐ struments deployed across the (then) 28 European member states to enhance trans‐ parency in the rule-making and law-making process. Those instruments are: Con‐ sultation, Regulatory Impact Assessment (RIA), Freedom of Information (FOI), Ombudsman and Judicial Review. Data collection was specifically designed to grasp the effects of the combination of the instruments on, amongst others, trust and confidence in legislation. For this chapter we rely on the data on the EU-28 without considering the EU level as ‘case 29’. This is because the EU system of impact as‐ sessment and review is not just another case to compare with the others, but de‐ serves a proper treatment in the context of a multi-level research design that cannot be handled in a single chapter.

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2. Scene One: Regulatory Impact Assessment RIA is an executive-endorsed requirement to examine proposals for pri‐ mary and secondary legislation. Across the EU, it covers both the execu‐ tive-initiated legislation - that is then examined by parliaments - and sec‐ ondary legislation, such as statutory instruments or agency-initiated regu‐ lation (see chapter 1 in this volume on the broad definition of legislation and the peculiarities of independent agency-level rules). In a sense, in the EU Member States it is more precise to talk about IA rather than RIA, but since the RIA terminology is ubiquitous we will adopt it. A useful way to frame the discussion about confidence, trust and trust‐ worthiness is to consider RIA as document and as process. As a public document, an impact assessment of proposed legislation covers the identi‐ fication of a problem, a range of feasible alternatives, the comparison of these alternatives, and an analysis that shows which option is preferred against a set of explicit criteria. Consultation is a key component of RIA in the Member States of the EU – see also chapter 6 by Nicoletta Rangone in this volume. In the population covered by Protego, impact assessment documents (and in some countries their analytical appendixes too) are published and sent to parliament with draft legislation. These are the documents we find on the official websites of the parliaments and/or governmental depart‐ ments and independent regulators. But impact assessment is also a process in which governments and regulators have to search and present evidence, collect information via consultation, appraise the likely effects of the pro‐ posals across a large number of stakeholders, the economy and the envi‐ ronment. These tests (and many more others, including gender impact as‐ sessment, trade tests, and checks on the costs of complying with adminis‐ trative procedures) are not just numbers put in a file that is then published. They are also search processes in the real world, where the public manager or regulator encounters or has to listen to the voice of stakeholders, civil society organizations, economists and lawyers. Regulations with a risk component involve specialist scientific advice bodies that have mandatory rights to be consulted. What is the connection with confidence in legislation, then? The con‐ nection comes from different functions performed by RIA. As mentioned, the claim is that RIA has the potential to make legislation trustworthy. The concept of trustworthiness is not a general characteristic that an entity (such as legislation in our case) possesses or not. It means that something 107

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or someone is deemed by someone else worth of trust in particular func‐ tions. This is where the potential of impact assessment, instrument and process, lies. Indeed, the creation of empirical evidence that is placed in the public domain makes legislation more trustworthy in principle. This matters in an age dominated by the distrust in or, according to some, death of exper‐ tise10 – the corona virus pandemic has shown how important evidencebased and science-informed risk trustworthy regulations can be. The po‐ tential benefits in terms of trustworthiness do not stop here. RIA creates capacity in public administration, such as capacity to listen, to analyze and to take into account concerns and issues raised by society and business op‐ erators.11 This makes legislation trustworthy because based on a wellfunctioning, ‘listening’ bureaucracy. Trustworthiness is greater when we have instruments that correct heuristics, that is the tendency of human beings, regulators included of course, to make choices that are not correct – RIA slows down the mind, limiting the mistakes of thinking fast.12 In terms of managing complexity, a good impact assessment process creates robust flows of information across departments, encourages joined-up government, and allows the ex‐ amination of the same issue from different perspectives, such as economic impacts, social effects, distributional consequences, and sustainability. The experience of the Commission in creating RIA steering groups involving different Directorates General is instructive.13 Croatia allows departments to produce different impact assessments, making their different perspec‐ tives on the same issue transparent and measurable.14

10 Tom Nichols, The Death of Expertise: The Campaign Against Established Knowl‐ edge and Why It Matters (Oxford University Press 2017). 11 The argument is developed by Claire A. Dunlop and Claudio M. Radaelli, ‘Policy Learning and Organizational Capacity’ in Edoardo Ongaro and Sandra van Thiel (eds.), The Palgrave Handbook of Public Administration and Public Management in Europe (Palgrave 2016). 12 Daniel Kahneman, Thinking Fast and Slow (Penguin 2012). OECD, Regulatory Impact Assessment, OECD Best Practice Principles for Regulatory Policy (OECD Publishing 2020). 13 Claudio M. Radaelli and Anne A.C.M. Meuwese, ‘Hard questions, hard solutions: Proceduralization through impact assessment in the EU’ (2010) 33 West European Politics 136. 14 Source: Protego project.

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Is this sufficient to create confidence in legislation? It may well be nec‐ essary, but it is not sufficient. For sure we know that what we have de‐ scribed is the ideal RIA template. An ideal RIA process includes steps that are necessary for a citizen to have confidence in legislation. But in reality RIA comes in different types. The EU is a laboratory of diversity in this respect. Cross-national empirical studies have shown that RIA processes can de‐ viate from the ideal template, sometimes even within a country (e.g. by sector). There are symbolic or perfunctory impact assessments without re‐ al substance in terms of analysis and consultation.15 This is not necessarily because public managers do not want to engage with the instrument and process of impact assessment, but because there is scarce capacity inside government to collect and analyze the data indispensable for an accurate appraisal of the likely effects of proposed legislation. There can be a docu‐ ment with some data and analysis, but nothing like the search process we described above. The document and the process can then be de-coupled, making an important dimension of the exercise symbolic. To carry on and turning to the dimension of control (see chapter 1 on the interplay between trust and control): Not all EU Member States pro‐ vide a robust scrutiny of the RIA produced by the regulators. It is hard to imagine a stakeholder affected by a rule considering the rule worth-oftrust when the impact assessment is only a number of pages produced by a department, without anyone having checked on the quality of the docu‐ ment as well as process. The Protego data on the 28 nationwide designs of RIA procedures show that scrutiny of impact assessment does not exist in every country, that when existing it can be performed in various ways, and that oversight bodies, when present, operate with different mandates and range of possible actions. But, there is also the mirror narrative of control. Too many controls may trump expertise, benevolence and integrity – the three determinants of trust. Indeed, there is literature on cost-benefit analysis as instrument of political control of the regulators rather than instrument geared towards giving reasons, transparency and involvement of the stakeholders in the preparation of legislation.16 In Europe the emphasis on ‘political control’

15 Claudio M. Radaelli, ‘Rationality, Power, Management and Symbols: Four Images of Regulatory Impact Assessment’ (2010) 33 Scandinavian Political Studies 164. 16 Eric A. Posner, Controlling agencies with cost-benefit analysis: A positive politi‐ cal theory perspective (2001) 68 University of Chicago Law Review 1137.

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is less pronounced than in the US but is present in some countries such as the UK.17 Further, citizens may not have confidence in legislation because the laws and regulations are implemented by a corrupt bureaucracy.18 Here we follow Maria De Benedetto on legislation as fact, not only words. A legislative act is often a promise or a theory. It is an abstract description of the reality that will follow its own rules, not necessarily what is expected in the act. And finally consider this: even ‘the’ perfect analytical document and ‘the’ high quality process of search supporting the identification of the best legislative choice may be ignored by the government, preoccupied with coalition stability or under pressure by certain interests, so that the final piece of legislation deviates in fundamental ways from the analytical assessments. This phenomenon is likely to happen if parliament is not vig‐ ilant, if the business community does not complain about the quality of legislation, if non-governmental organizations representing civil society do not track down the discrepancy between RIA and the legislative act. There are two key variables that matter, then. One is the quality of RIA as document and process. The other is whether RIA is used to make a de‐ cision about legislation, and if so how.19 Even more fundamentally, recall what we said about context. In countries like Denmark, a tight procedure for impact assessment may not be congenial to the web of informal, coop‐ erative interactions among departments. It is not surprising that countries where the early stages of law-making are based on fluidity and informality of communications across departments are the ones with few or no proce‐ dural requirements for impact assessment and consultation, and even where these requirements exist on paper, they are not implemented.20

17 Claudio M. Radaelli, ‘Regulating rule-making via impact assessment’ (2010) 23 Governance 89-108. 18 A Ogus, “Corruption and regulatory structures” (2004) 26 Law & Policy 329. On the link between regulatory procedures and perceptions of corruption see Claire A. Dunlop, Jonathan C. Kamkhaji, Claudio M. Radaelli, Gaia Taffoni and Claudius Wagemann, ‘Does consultation count for corruption? The causal relations in the EU-28’ (2020) Journal of European Public Policy, in press. 19 Claire A. Dunlop, O. Fritsch and Claudio M. Radaelli, ‘Étudier l’étude d’impact’, (2014) 149 Revue Française d’Administration Publique 163. 20 The Protego data show that Denmark has the lowest level of proceduralization of RIA across the EU-28. See also Claire A. Dunlop, Jonathan C. Kamkhaji, Claudio M. Radaelli, Gaia Taffoni and Claudius Wagemann, ‘Does consultation count for corruption? The causal relations in the EU-28’ (2020) Journal of European Public

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3. Scene Two: Judicial Review Imagine that a legal norm has gone through the formulation process where information has been gathered, the economic impact and social effects have been considered, and stakeholders were consulted. This piece of leg‐ islation comes now into force and its content is critical in some way. This can be the case for example because of the outcome of the decision, such as a new system of roads that affects a local authority or community, or a private hire licenses decree that is negatively affecting a specific firm. The policy game implied by this norm is not finished yet. Those who believe they are negatively affected can still make their preferences heard. But there is a fundamental shift in arena, from policy formulation in govern‐ ment departments to courts. The power of courts to review legislation plays a role in delivering on control. Recall that, following the introduction, confidence depends on trust and control. Whilst impact assessment opens up the process to evi‐ dence, consultation and cost-benefit analysis, this procedure alone is not a sufficient condition to make legislation and the authorities (governments and regulatory agencies) worth of their trust. Courts add a key step in the chain, a step grounded in their control function. In fact, courts are called upon to review that the outcome of an administrative process is fair and to determine whether the decision was taken in a reasonable manner and to check on the constitutionality, rationality and respect of rule of law. Judges have the power to annul in total and in part an act. In this way the possible detrimental impact (for confidence) of a decision is mitigated through the procedural, substantial and legislative control that the judicial administra‐ tion does on the work of the executive and administrative branch. In prac‐ tice this means that courts, and not the legislature itself, have the final say whether an act is or is not within power.21 Judicial review is essentially a tool for transparency through reasongiving obligations articulated in court.22 In this sense the metaphor of ‘fire alarm’ we have seen in RIA applies to justice too, perhaps even more so,

Policy, in press. Claudio M. Radaelli, ‘Desperately seeking regulatory impact as‐ sessments: Diary of a reflective researcher’ (2009) 15 Evaluation 31. 21 Alan Freckelton, Administrative Decision-Making in Australian Migration Law (ANU 2015). 22 Peter Lindseth, ‘Judicial Review in Administrative Governance: a theoretical framework for comparative analysis’ in Ernst Hirsch Ballin, Saskia Lavrijssen,

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given the essential feature of control embedded in judicial review. A fire alarm is after all a control device. Indeed, by standing in courts, litigants make use of the adjudication of a judge to decide whether the executive, administrative or legislative power has acted in a reasonable way or not. As fire alarm, judicial review must operate with other instruments.23 4. The Encounter Between RIA and Judicial Review There are few but important variables to take into account when consider‐ ing RIA and judicial review as a mix of control tools to foster trustworthi‐ ness in legislation. We have to distinguish between the encounter as logi‐ cally possible and the reality on the ground. Hence our question is: how does this encounter unfold, and is this the norm or the exception in the ad‐ ministrative life of EU countries? Following Alemanno, in principle the encounter may be ‘direct’ when what is challenged in the court is the RIA itself, for instance for breaching the procedural requirements of the assess‐ ment process.24 The ‘indirect’ encounter may occur when RIA documen‐ tation is invoked to challenge the validity of an act, in this case the RIA provides evidence that informs the broader review process, especially the preparation of an act. Thus, considering of RIA within the adjudication process in court al‐ lows for a more specific scrutiny of the input phase of the policy process. As reported by Alemanno, the use in courts of RIA increases the attention on the robustness of inputs to policy formulation and provides for a larger amount of evidence and data. The courts, in fact, can in principle look at the quality of RIA or rely on the amount of evidence generated by the im‐

and Jurgen de Poorter (eds.) Judicial Review in Administrative State (T.M.C Ass‐ er/Springer 2019). 23 Ibid 191. Judicial review can be seen as a mechanism to reduce the problem asso‐ ciated to what has been called the ‘asymmetric information risks’ of rule-making. As Lindseth rightly argues judicial review of administrative actions can be read as a way to reduce the information asymmetry that exists between the legislature and the administrative agent or the executive. The adjudication of a judge, triggered by the litigants, thus reduces the information asymmetry that is a consequence of the power delegated from the legislative to the executive. 24 Alberto Alemanno, ‘Courts and regulatory impact assessments’ in Claire A Dun‐ lop and Claudio M. Radaelli (eds) Handbook of Regulatory Impact Assessment (Edward Elgar Publishing 2016) 129.

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pact assessment to come to a conclusion. If any or both activities occur, the effects are not trivial. They can move the logic of courts towards evi‐ dence as primary consideration in legal reasoning, so much as that some authors have talked of a possible ‘evidence-based judicial reflex’.25 This is not necessarily an indicator of bias or skewed legal reasoning. Indeed the ‘evidence-based judicial reflex’ provides for a type of legal reasoning in courts. This tendency enhances the attention of the courts to the procedu‐ ral requirements of the whole lawmaking process. Crucially, it can in‐ crease the trustworthiness of legislation. We can indeed imagine a court looking at procedural requirements in RIA such as the scope and breadth of analysis and consultation – a set of judicial controls on the RIA proce‐ dure that should increase trustworthiness. But moving to what happens on the ground, according to the data gath‐ ered by Protego seldom do courts review impact assessment. In the large majority of our population, it is the Constitutional Court that undertakes an evidence-based review while deciding on the constitutionality of an act. In the Czech Republic the Constitutional court draws on RIA when adjudi‐ cating on the statutes, therefore judges are only checking on the constitu‐ tionality of an act with more empirical evidence. This notwithstanding, we found only one case in Czech Republic on a statute that has been quashed because the RIA was not performed at all during the law-making process. Also, in Slovenia the Constitutional Court has drawn on RIA reports when reviewing the constitutionality of an act. This reminds us of an important point debated already twenty years ago – whether RIA is constitutive of a normative act, that is, absent the RIA the legal norm does not exist.26 In Italy, RIA is an administrative procedure that does not create rights and duties protected in court. This means that the RIA report per se does not constitute a legal obligation to be reviewed in courts. However, courts can sanction the failure to comply with the obligation to carry out an RIA.27 Therefore, the Italian judicial courts can only check on the obliga‐ tion to carry out RIA while the quality of the process has no effect. This notwithstanding, an emerging trend seems to affect the role of administra‐ tive judges vis-à-vis the analysis carried out by independent regulators.

25 Ibid 132. 26 Maria De Benedetto, ‘Un quasi procedimento’ in N. Greco (eds.) Introduzione all’analisi d’impatto della regolamentazione (Edizioni Scuola Superiore della Pubblica Amministrazione 2003) 225. 27 Art. 14 Law 246/2005.

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This trend is visible in recent decisions of the Italian administrative courts. These rulings prescribe that administrative judges – while reviewing a regulation– should verify the procedure followed in the rule-making pro‐ cess with specific attention to the analysis perfomed.28 Similarly to the Italian case, in Portugal RIA has no effects per se but a statute can be challenged if RIA was not done. The same holds for other EU countries like Lithuania and Luxemburg. All these cases point to a quasi-null use of the RIA- created evidence in judicial review – although the total absence of RIA makes a difference. There are indeed few cases where RIA evidence has enhanced the whole process of control that courts do. The case of Spain is telling of an option of indirect use of RIA. The Supreme Court, in fact, has quashed a number of articles of a royal decree on private hire licenses because the reasons expressed in the report where not ‘convincing’,29 therefore the evidence produced in this case assisted the adjudication process. 5. Judicial Deference Apart from the interaction between RIA and judicial review, the deference of courts is the second dimension to consider that is fundamental in rela‐ tion to confidence in legislation. When considering judicial deference, we specifically intend deference of courts to administration and governments over regulatory matters. That is the extent to which courts, while review‐ ing an act or regulation, waive to the evidence and experience of adminis‐ trative agencies or the executive.30 Thinking of confidence via control, it matters what exactly do courts review and what are the possible remedies against an unlawful act. In this domain, the key concept is the Green and

28 The specific case regarding the ruling of the italian administrative courts is report‐ ed in Simona Morettini, ‘Il Contributo del Consiglio di Stato e dei TAR alla qualità della regolazione’ in Gabriele Mazzantini and Nicoletta Rangone (eds) L’Analisi d’impatto e gli altri strumenti per la qualità della regolazione.Osserva‐ torio AIR Annuario 2017-2018 (Editoriale Scientifica 2019) 271. 29 ECLI: ES:TS [2018] 1913, Judgement N. 921/2018. 30 For a comprehensive definition on the concept of ‘Deference’ and administrative judicial review see G. Zhu, Deference to the Administration in Judicial Review: Comparative perspectives (Springer International Publishing 2019).

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Red-Light theories of administrative law.31 While the Green light theory sees judicial review as based on trust in the executive, and thus the ap‐ proach to judicial review is that of a complementary action to that of the government and regulators, the Red Light theory suggests that the judicia‐ ry should perform an active check against the abuses of the executive power, therefore justifying a more intense scrutiny of the courts. What is or what should be the purpose of judicial administration, the depth and intensity of the review done by courts is a compelling question in legal scholarship. Should in fact the scope of the review be expanded in various domains – for instance should courts be able to review secondary legislation like regulations? Poorter points to the right question when re‐ flecting on judicial deference. If the general explanation for administrative deference is that courts lack expertise when compared to administrations, then this claim of expertise – or lack of expertise – brings in the inherent idea that there is an objectively correct conclusion.32 What Poorter sug‐ gests is that courts should be ‘on guard’ against claims to expertise and should do more in order to prevent an arbitrary exercise of administrative and executive power. Finally, and also in connection to what we said about the ‘evidence-based judicial reflex’, courts can enter the domain of exper‐ tise (beyond the consideration of RIA discussed above) as creators of stan‐ dards, for instance on who should be considered an expert or what guiding principles a regulation ought to be grounded on. In this sense the case of the Spanish ruling against the private hire licenses decree because of not ‘convincing’ reasons seems a good example of a guiding principle em‐ braced by a court.33 The degree of deference depends on a number of vari‐ ables: the characteristic of the dispute, the gravity of the issue but most importantly the level of technicality of a dispute. This means that there are limits to the technical competences of courts and deference is appropriate when a public authority more than a judge has better experience and knowledge about a relevant matter.34 Deference is nonetheless an impor‐

31 Carol Harlow and Richard Rawlings, Law and Administration (Cambridge Univer‐ sity Press 2009). 32 Jurgen de Poorter, Ernst Hirsch Ballin and Saskia Lavrijssen (eds), Judicial Re‐ view of Administrative Discretion in the Administrative State (T.M.C Asser Press 2019). 33 ECLI: ES:TS:2018:1913, Sentencia núm. 921/2018. 34 Trevor Robert Seaward Allan, Judicial deference and judicial review: legal doc‐ trine and legal theory (University of Warwick 2011).

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tant proxy of the intensity of the scrutiny of courts and of the control that courts can exercise on the legislative process. The Protego data point to a striking similarity: in all the 28 cases judi‐ cial review is considered a general principle of administrative law that has the objective of protecting fundamental rights and uphold the rule of law. Beyond these general shared goals, judicial review differs across countries on the deference and the remedies that courts can take. In some countries like Greece the degree of deference to the administra‐ tion is set by the law and covers specific categories of acts that are not subject to judicial review. Those are in particular government acts regulat‐ ing the relationship between the executive and the parliament such as the dissolution of the parliament and the acts connected to foreign policy. Slovenia is an example of courts that have very limited powers to annul a general administrative act. Where deference is strong the acts where the courts can rule are those where the Constitutional court decides that a cer‐ tain act or regulation is not regulating on a specific issue which it should instead regulate. The Netherlands exhibits a high degree of deference but contrarily to other EU countries the remedies that a court can take are few. The intensi‐ ty of judicial review is activated in function of the type of power of the administrative authority. Indeed, the technical complexity of the adminis‐ trative decision is a factor in the assessment of the intensity of judicial re‐ view. However, the Dutch strong deference is counterbalanced by the remedies that courts can take. An administrative judge has the power to annul an administrative order deemed illegal. Moreover, the judge can de‐ termine that the judgment itself replaces the annulled order or a part that is annulled. The judge directs the administrative authority to make a new or‐ der in respect of its instructions. The administrative Dutch judge can also determine a penalty if the administrative authority does not comply with the judgment and the payment can be directed to the affected part.35 The Dutch deference to the expertise of the administration is high, but within its space of maneuver the judge can take a strong action and a number of remedies. To sum up, the Protego data also point to variation across the EU in the dimension of the role of courts vis-à-vis decision makers. This is shown by deference to the administration in judicial review as well as the reme‐

35 Art 8 of the General Administrative Act, GALA.

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dies courts can take. It is not common for courts to oblige administrative authorities to issue a new act. Courts differ in the kind and range of reme‐ dies they can take as for instance quashing an act or declare an act null or invalid as well as to order an injunction. 6. Conclusions We have put RIA and judicial review through the trustworthiness test. How do they fare? How do they perform together in an ecology of policy instruments affecting the life-cycle of laws and regulations, from policy formulation to decisions taken in courts? Trustworthiness depends on how the two arenas or scenes of the life-cycle interact with each other. The two arenas are conceptually connected when we think about whether citizens and affected interests should or should not trust laws, regulation and the public authorities that produce and implement them. If we look at the potential of RIA and judicial review, they pass the trustworthiness test. RIA has potential for increasing trustworthiness via transparency, the provision of a broad range of evidence including infor‐ mation provided by the affected interests, and the explicit articulation of the empirical reasons behind public intervention. Judicial review has a transparency dimension too, and a stronger control property. However, the proof of the pudding is empirical. And empirically we cannot point to a single direction or pass-fail mark for the two instruments. This is first of all because the interaction between RIA and judicial review is rare. We looked at different ways in which this interaction may take place, and did not find much evidence of interaction across our population. The two scenes are not connected in compelling plots: the story is still fragmented. The second variable concerns diversity. Notwithstanding the process of European integration, there is still diversity across the EU. Specifically, we found that on top of the heterogeneity of RIA systems there is also het‐ erogeneity of judicial review. These two levels of differentiation and di‐ versity provide a picture of the EU legislation without a single organizing architecture. Consider that the same regulations and directives produced by the EU are implemented in the (now 27) Member States. Legislation with an EU-impulse falls into national systems with a double degree of heterogeneity – in the policy formulation arena as well as in the arena of judicial review. Add that the EU itself has not as yet adopted its own ad‐ 117

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ministrative procedure act as organizing principle for regulatory policy and legislation. The scene is then set for a lack of common approach, al‐ though more research should be done on how the EU and the domestic levels of RIA and judicial review interact, possibly with a multi-level re‐ search design. And yet – we conclude – the implications for trustworthiness are not straightforward. One argument is that the lack of convergence across the EU is detrimental (to trustworthiness). Imagine a multi-national company or a citizen with presence in different Member States that has to face this patchwork. How can the experience of passing through so many different systems of appraisal and court’s review enhance trustworthiness? How‐ ever, another argument is that diversity respects the national political, le‐ gal and administrative contexts. Exactly because these domestic contexts are different and incorporate different legal traditions and administrative legacies, RIA and judicial review have to adapt and wrap-up around ‘con‐ text’ in different yet meaningful ways. After all, diversity is a core proper‐ ty of the EU as laboratory federalism.36 As a federalizing political system, the EU incorporates diversity that allows governments, stakeholders and citizens to discover the ‘best solution’ in time, by experimenting with het‐ erogeneity. The argument is similar to the one made for regulatory compe‐ tition by authors such as Roberta Romano for the US as federal system.37 Be that as it may, if we look at the implications for the study of legisla‐ tion, the conclusions are clearer. As scholars of legislation, we have to consider jointly RIA and judicial review when we approach the topic of quality of legislation. This analytical step has not been made by the Euro‐ pean Commission and the EU more generally. The strategy for better regu‐ lation of the European Commission includes RIA but does not extend to judicial review. The 27 Member States have embarked in regulatory re‐ forms under the aegis of the better regulation agenda in the last twenty

36 For an application of the concept of laboratory federalism to the EU see Wolfgang Kerber and Martina Eckart ‘Policy learning in Europe: the open method of co-or‐ dination and laboratory federalism’ (2007) 14 Journal of European Public Policy 247. 37 Roberta Romano, ‘Is regulatory competition a problem or irrelevant for corporate governance?’ (2005) Oxford Review of Economic Policy 212. On the EU see Clau‐ dio M. Radaelli, ‘The puzzle of regulatory competition’ (2004) 24 Journal of Pub‐ lic Policy 1. On federalism and diversity the most compelling argument has been made by Vincent Ostrom, The Meaning of American Federalism: Constituting a Self-Governing Society (ICS Press 1991).

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years – but yet again without connecting better regulation to judicial re‐ view. Our approach to identifying the connections and missing links be‐ tween the two arenas thus contributes to the critique of current policies and suggest remedies.

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Effective Consultation as a Tool for Trust1 Nicoletta Rangone

Summary: 1. Effective Consultation and Public Trust - 2. Reframing Mini‐ mum Requirements for Effective Consultation - 2.1 Accessibility of the Process - 2.2. Early Stage Consultation - 2.3 Accessibility of the Docu‐ ments - 2.4 Reasonable Time to Intervene - 2.5 Feedback and Justification of Final Rules – 2.6 Consultation to Secure Compliance - 3. How to Bal‐ ance Increased Participation and Collection of Valuable Contribution On‐ ly? - 4. Conclusions 1. Effective Consultation and Public Trust Consultation is crucial in all life-cycles of law and regulation.2 It provides information on the need of a new intervention and on the most effective way to assess the problem at stake3 (for instance, how a rule might be in‐ terpreted, accepted or refused by stakeholders). Consultation can also re‐ veal the persistent need of an existing law or regulation, as well as its side effects or the opportunity for its abrogation or reform.

1 Research for this chapter was funded by the Erasmus + Programme oft he EU, Jean Monnet Chair on EU Approach to Better Regulation. 2 Jeffrey L. Pressman and Aaron Wildavski, Implementation. How Great Expecta‐ tions in Washington Are Dashed in Oakland; Or, Why It's Amazing That Federal Programs Work at All, This Being a Saga of the Economic Development Adminis‐ tration as Told by Two Sympathetic Observers Who Seek to Build Morals on a Foundation of Ruined Hopes (University of California Press 1973). It is now gener‐ ally recognised that not only public policies, but also regulation and legislation must be managed throughout its whole life-cycle: from the designing, to the imple‐ mentation, enforcement, evaluation and revision of a rule. This approach has been embraced by international organizations, such as the OECD (see for instance OECD, The OECD Report on Regulatory Reform: Synthesis, 1997, 29-30), and by European institutions (see European Commission, Smart regulation in European union, COM(2010)543 def.). 3 Cary Coglianese, Richard Zeckhauser, ‘Seeking truth for power: informational strategy and regulatory policymaking’ (2004) 89 Minnesota Law Review 277, 281.

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As such, consultation potentially generates two positive outcomes. The first one is related to the widely recognized improvements in law and regulation, due to the enrichment of data and end-users positions col‐ lected.4 The second positive outcome, of utmost importants, is even more sub‐ tle, in that consultation could create conditions for an increased acceptance of final decisions and trust in public authorities. This is related to the in‐ volvement of individuals “interested in or affected by” a decision-mak‐ ing,5 as well as to the justification of final decisions.6 Even when excep‐ tional circumstances impede participation, trust in public authorities is not undermined, provided that stakeholders are given a clear communication of the reasons which justify an exception in the process.7 Moreover, trust in public authorities, in turn, supports compliance8 and consequently reduces enforcement costs.8

4 Evidence-based regulation is strongly promoted as a best practice by the OECD (1.1 annex to the 2012 recommendation of the Council on regulatory policy and governance; OECD, Regulatory Impact Assessment, 2020; OECD, Regulatory en‐ forcement and inspection toolkit, 2018) and is supported by academics (see, among others, Jeffrey J. Rachlinski, ‘Evidence-Based Law’ (2011) 96 Cornell L. Rev., 901; Cass R. Sunstein, ‘Empirically Informed Regulation’ (2011) 78 University of Chicago Law Review, 1349). One of the tool to collect evidence is consultation, whether performed in an impact assessment proceeding or not. 5 OECD, Better Regulation Practices across the European Union (OECD Publishing 2019) 40. 6 Justification is the way for lawyers and judges to “communicate that they are trying to be fair”: “a key antecedent of trustworthiness is justification. When presenting their decisions, authorities need to make clear that they have listened to and consid‐ ered the arguments presented. They can do so by explaining why they are making their decisions” (Tom R. Tyler, ‘Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform’ (1997) 45 The American Journal of Comparative Law, 871, 889). 7 For instance, during the Covid-19 pandemic “consultation with all potentially af‐ fected parties on urgent measures becomes challenging. (…) It is, however, very important to provide sufficient information in a transparent manner to all stakehold‐ ers so that they clearly understand the purpose and necessity of these, sometimes drastic, measures” (OECD, Regulatory Quality and COVID-19: Managing the Risks and Supporting the Recovery (OECD publishing 2020). 8 On the role trust plays in nurturing compliance see Tom R. Tyler, Why People Obey the Law (Yale University Press 1990), 40 ff.; Tom R. Tyler, ‘Public mistrust of the law: a political perspective’ [1998] 66 University of Cincinnati Law Review, 66, 869; John Braithwaite and Toni Makkai, ‘Trust and compliance’ (1994) 4 Policing

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Therefore, consultation should activate a virtuous circle of better law and regulation, acceptance, trust, compliance, as it is widely embraced by the European and international institutions.10 However, mere consultation-based decision-making is not enough. Not only the process can result in being ineffective to activate the virtuous cir‐ cle, but can also paradoxically backfire, leading to weak interests undervoiced, biased data collection, as well as crowding out motivation in tak‐ ing part in future consultation. What makes consultation effective in activating the above-mentioned virtuous circle of better rules, acceptance, trust and compliance is the question the chapter deals with. It doesn’t have the ambition to compare the existing consultation rules and their implementation. On the contrary, it discusses the most widely accepted (even if not fully implemented) re‐ quirements, and if so whether they can be improved, and how to avoid side effects (e.g. openness v. ossification and information overload), as well as whether they are comprehensive or should be integrated. It is organised as follows. Paragraph 2 investigates the main require‐ ments that public authorities should take into consideration when design‐ ing and conducting a consultation process. They can be summed up in five criteria which can be considered the common core of the many consulta‐ tion standard enacted around the world: accessibility of the process (para‐ graph 2.1), early stage consultation (paragraph 2.2), accessibility of the documents (paragraph 2.3), reasonable time to intervene (paragraph 2.4), feedback and justification of final rules (paragraph 2.5). A last point is about securing compliance already in the decision-making process and most specifically via consultation (paragraph 2.6). These minimum re‐ quirements will be critically reinterpreted and possibly enriched in the

and Society 1; Kristina Murphy, ‘The role of trust in nurturing compliance: A study of accused tax avoiders’ (2004) 28 Law and Human Behavior 187. 9 OECD, Government at a glance, chapter 1: Trust in government, policy effective‐ ness and the governance agenda (OECD publishing 2013) 22. Another positive outcome, which is not addressed by this chapter, is the “procedural legitimation” of executive agencies, which is widely discussed an national and European level (see, for instance, A. Bunea and R. Thomson, ‘Consultation with interest groups and the empowerment of executives: evidence from the European Union’ (2015) 28 Governance: An International Journal of Policy, Administration, and Institu‐ tions, 517 ff.). 10 OECD, Better Regulation Practices across the European Union (OECD Publish‐ ing 2019) 5, 40.

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light of practical experiences and cognitive insights, both supported by lit‐ erature stemming from various fields: law, economics, political science and psychology. The analysis will also show some of the many challenges decision-makers face in organising and leading a consultation, for in‐ stance, the frequent limited involvement of weak interests (as underlined in paragraph 2.1 and in the followings). A general issue is the relationship between an increased participation (which is favored by the minimum requirements)11 and its side effects, i.e. massive contributions which could overwhelm decision-makers hindering a thoughtful analysis of them. Keeping this and other drawbacks in mind, paragraph 3 attempts in answering the question on how to balance both participation and collection of valuable contributions. As a methodological choice, the chapter is based on a horizontal ap‐ proach to both rule-making and law-making, while other consultation pro‐ cesses fall outside the scope of the analysis (e.g. those regarding policies or surveys collecting opinions or point of views)12. It suggests considering the requirements for effective consultation to be tendentially the same in both law-making and rule-making, on the grounds that these fields of ana‐ lysis could be enriched one by the other. For instance, all techniques legal drafters implement in order to improve the accessibility of legislation should be crucial as to enhance the quality of consultation documents. The same is for some of the minimum requirements for consultation, which have been widely analysed in the regulatory context (e.g. how to involve weakened interests) however less in law-making. Therefore, the chapter suggests and assumes that it is time to overcome disciplinary barriers and

11 European Commission, Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission, COM(2002) 704 final. 12 Consultation is also crucial in order to draft policies (e.g. the consultation on the White Paper on artificial intelligence - COM(2020) 65 final - launched by the European Commission), to survey citizens perception on a given topic (e.g. “to mark its 75th anniversary, the United Nations is launching a global conversation on the role of international cooperation in building the future we want”, https://un75.o nline/), or to promote broader participation of individuals in regulatory reforms (a section of the EC single access point, called “Lighthen the Load− Have Your Say”, is devoted to collect ideas to reduce red tape of existing regulations). A sort of meta-consultation is also usually organized on draft consultation guidelines (e.g. the one launched by the Italian Senate from March 9, to April 30, 2017).

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implement all tools available to legislators and regulators in order to im‐ prove consultation effectiveness. 2. Reframing Minimum Requirements for Effective Consultation As already mentioned, numerous advantages are related to consultation in rule-making and law-making, such as more informed decisions, enhanced trust in public authorities, increased acceptance and compliance. In order to activate the above mentioned virtuous circle, there is a need for a gener‐ al recognition of the crucial role of some requirements to be followed. At European level an important document has been adopted, underlin‐ ing the importance of respecting some minimum standards for consulta‐ tion process. This European Commissione 2002 communication13 has been transposed in the Better Regulation Guidelines in 2015 and comple‐ mented by a Toolbox based on operational provisions.14 In 2016, an in‐ terinstitutional agreement between the European Parliament, the Council of the EU and the European Commission also recognised that consultation is crucial in achieving “the objective of Better Law-Making”.15 As a con‐ sequence, the better regulation guidelines and toolbox has been reviewed in 201716 and 201817 respectively, straightening the accessibility and

13 COM(2002)704, complemented by COM(2012)746, SWD(2012)422, COM(2014)368. The need to “carry out broad consultations with parties con‐ cerned in order to ensure that the Union's actions are coherent and transparent” is also underlined by art. 11, paragraph 3, of the Treaty of the European Union. Moreover, there is a general duty of the European Commission to widely consult before proposing legislation (protocol n. 2 on the application of the principles of subsidiarity and proportionality annexed to the Treaty on the functioning of the EU), and to give reasons for the decision of not conducting consultation in cases of exceptional urgency. 14 Communication, Better regulation for better results - An EU agenda, COM(2015) 215 final. 15 Whereas 6, 19 and 20 of the Interinstitutional agreement of 13 April 2016. 16 Commission Staff Working Document, Better Regulation Guidelines, Chapter VII “Guidelines on Stakeholder Consultation”, SWD (2017) 350, 67 ff. 17 The chapter VII of the toolbox is devoted to “Stakeholders’ consultations”, 378 ff. It has been added of the following new paragraphs: TOOL #53. The consultation strategy; TOOL #54. Conducting the consultation activities and data analysis; TOOL #55. Informing policymaking - the synopsis report; TOOL #56. Stakehold‐ er feedback mechanisms.

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transparency tools: a consultation strategy for each initiative, all consulta‐ tion documents translated into a number of languages proportional to the topic at stake, a publication duty of consultation documents received, and adequate feedback.18 Similar criteria has been drafted by the OECD19 and by some coun‐ tries,20 even if they are not always implemented consistently. These rules are mainly addressed to the executive branches, both in their activity of rule-making, as well as when initiating a legislative proceeding.21 These criteria have also inspired some Parliaments. For instance, the Italian Sen‐ ate, as a unique example in the European panorama, listed some criteria for effective consultation in 2017,22 likewise the Australian Parliament in the framework of the technical requirements set out by the “legislation act 2003”. In the following paragraphs, the adequacy of the minimum require‐ ments (reorganized in six criteria) will be challenged and possible solu‐ tions envisaged.

18 Revision to guidelines and toolbox have been based also on the proposals dis‐ cussed by stakeholders and member state represented in the Refit Platform (REFIT Platform Opinion on the submissions XXII.4.a by the DIHK and XXII.4.b by a citi‐ zen on Stakeholder consultation mechanisms, June 7, 2017). 19 OECD, Best Practice Principles on Stakeholder Engagement in Regulatory Poli‐ cy, 2017, document for consultation, which is intended to complement the 2012 Recommendation on Regulatory and Policy Governance. 20 For instance, UK Cabinet Office, Consultation principles: guidance, 2012, last up‐ dated 2018; Italian Ministry for simplification and public administration, Guide‐ lines on public consultations, Directive n. 2/2017. 21 The OECD found that “countries improve their practice with respect to primary laws to a greater extent that with respect to subordinate law” (Regulatory Policy Outlook (OECD publishing 2018) 48). These data only cover practices within the executive in charge of initiating primary laws as well as secondary ones. Therefore they do not include the US where primary laws are initiated by the Congress. As in many OECD and European surveys, the analysis is mostly based on requirements and do not assess in depth their actual implementation. 22 Irmgard Anglmayer, Better Regulation practices in national parliaments (Euro‐ pean Parliamentary Research Service 2020) 22.

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2.1 Accessibility of the Process It is important for consultation effectiveness that anyone interested in the issue at stake (for open consultation) or selected stakeholders (in targeted consultation) has the possibility of expressing their position. In order to ensure the accessibility of the process, similar procedural re‐ quirements have been introduced in OECD countries. First of all, it is important to consult people at the earliest possible stage, already when a regulatory problem has been identified (see para. 2.2). Secondly, it is crucial to ensure an adequate publicity of the process. To this regards, plans of future consultation should inform stakeholders in ad‐ vance.23 This is crucial for all stakeholders, including well-organised firms, in order to allow them to provide answers that are fit for purpose and not ones that are already drafted or related to a generic positions. For the same reasons a reasonable time to intervene must be provided, as un‐ derlined in paragraph 2.4. At the same time, the consultation process should be advertised on different channels targeting different stakeholders, from the most innovative and interactive social media, to the most tradi‐ tional, such as radio and newspapers. Thirdly, it is important to reduce the cost of participation. Better regu‐ lation scholars are aware of the need to avoid the so-called “consultation fatigue”,24 and a similar approach is suggested from a cognitive science point of view in order to overcome status quo (a widespread bias which would lead people to “doing nothing or maintaining one's current or previ‐ ous decision”).25 One way to reduce the cost of participation, is to share information between different departments within the same institution or

23 OECD, Better Regulation practices across the Europe, cit., p. 46 ff. 24 Point 8, OECD, Recommendation of the Council on Open Government (OECD publishing 2017). 25 William Samuelson and Richard Zeckhauser, ‘Status Quo Bias in Decision Mak‐ ing’ (1988) 1 Journal of Risk and Uncertainty, 7, 8. This bias could impact on the willingness of people to participate in a consultation process. Loss aversion has been interpreted as potential source of status quo when a change is associated with both advantages and disadvantages (Daniel Kahneman, Jack L. Knetsch, Richard H. Thaler, ‘Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias’ (1991) 5 The Journal of Economic Perspectives, 193, 197-198; see also Eyal Zamir and Doron Theichman, Behavioural law and economics (Oxford University Press 2018), 49).

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different institutions, so as to avoid stakeholders being “frustrated with re‐ peating information already given”.26 Another way is to allow a simple and easy access to institutional websites, as well as to the sections devoted to consultation. The accessibility should be enhanced by a standardization of consultation websites (e.g. of all independent authorities or agencies, ministries etc.).27 A step further could be to create a single access point, as it has been provided at European level. Moreover, in consultation based on notice and comment, documents should be as simple as possible, while providing all relevant information, as is underlined in paragraph 2.3. These tools can support the involvement of already engaged and well organised stakeholders. However, they risk not being decisive for others, such as the so-called missing stakeholders (i.e. “those directly affected by the proposed rule who are historically unlikely to participate in the tradi‐ tional comment process”).28 A limited participation of individuals and nonbusiness groups, such as NGOs or consumer groups, affects all coun‐ tries, even those with a great tradition in consultation.29 In the US, empiri‐ cal researches show that the most significant barriers to citizen participa‐ tion are motivational and knowledge-based.30 Similar barriers result in

26 OECD, Best practice principles on stakeholder engagement in regulatory policy. Draft for public consultations, para. 59. 27 Emma Galli, Ilde Rizzo and Carla Scaglioni, ‘La trasparenza e l’accountability delle autorità indipendenti’, in Gabriele Mazzantini and Nicoletta Rangone (eds.), Osservatorio AIR. L’analisi di impatto e gli altri strumenti per la qualità della re‐ golazione. Annuario 2017-2018 (Editoriale Scientifica 2019) 179. 28 Administrative Conference of the United States, Adoption of Recommendations and Statement Regarding Administrative Practice and Procedure, Federal Register 76269, vol. 78, n. 242/2013, 76271. 29 Evidence is blurred at both parts of the Atlantic and it is not clear to what extent comments received influence the final decisions. Stuart Shapiro, ‘Can Analysis of Policy Decisions Spur Participation?’ (2018) 9, Journal of Cost-Benefit Analysis 435, 449; Stuart Shapiro, ‘Does the Amount of Participation Matter? Public Com‐ ments, Agency Responses and the Time to Finalize a Regulation’ (2008) 41 Policy Sciences, 33. 30 Cary Coglianese, ‘Citizen Participation in Rulemaking: Past, Present, and Future’ (2006) 55 Duke Law Journal 943, 966; Cary Coglianese, ‘Enhancing Public Ac‐ cess to Online Rulemaking Information’ (2012) 2 Michigan Journal of Environ‐ mental & Administrative Law 1, 53-54.

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hindering citizens’ participation also in EU rule-making.31 For instance, li‐ mited digital skills of the most vulnerable citizens is a matter of concern, leading to doubt the effectiveness of the European single access point.32 These barriers are emphasized when consultation is performed in the framework of a specific analysis, such as regulatory impact assessment, risk assessment or environmental impact assessment. Here the complexity of the analysis seems to be the most important reason for limiting partici‐ pation to those with considerable pre-existing expertise in the subject mat‐ ter.33 The involvement of missing stakeholders remains an open question, which must be addressed by different means all at the same time. For in‐ stace, using adequate channels that make them aware of the existence of a consultation (as underlined below), tailoring consultation documents to their capability of understanding as well as giving room to descre their ex‐

31 Sofia Ranchordas, ‘Consultations, Citizen Narratives and Evidence-Based Regu‐ lation. The Strange Case of the Consultation on the Collaborative Economy’ (2017) 19 European Journal of Law Reform, 52, 54. See also Elisa Lironi, Poten‐ tial and Challenges of E-Participation in the European Union (European Parlia‐ ment, Directorate General for Internal Policies, 2016), 3, 9; Jan Beyers and Shara Arras (‘Who feeds information to regulators? Stakeholders diversity’ (2019) Jour‐ nal of Public Policy 1, 15) specifically assessed the accessibility of consultation in EU agencies, showing that “overall, nonbusiness interests – such as consumer NGOs, environmental NGOs and labour unions – are poorly represented in EU agency consultations. These actors constitute about 5% of the participating stake‐ holders. Only the BEREC, the ERA, the EASA and the ESA attract a considerable number of nonbusiness interests (respectively, 8, 14, 7 and 11% of all partici‐ pants), mostly environmental and consumer organisations”. 32 Francesco Sarpi, ‘Better for Whom?’ (2015) 6 European Journal of Risk Regu‐ lation, 372. 33 Stuart Shapiro, ‘Can Analysis of Policy Decisions Spur Participation?’ (2018) 9, Journal of Cost-Benefit Analysis 435, 449. For instance, in the US the environ‐ mental impact assessment is based on mandatory consultation, which is “struc‐ tured in ways that mobilise bias towards development”. Indeed, “the process is carefully stage-managed. And as activists everywhere have discovered, “they” (the authorities) have everything – time, power, expertise and money – on their side” (Jenny Steward, The Dilemmas of Engagement. The Role of Consultation in Gov‐ ernance (Australian National University Press 2009) 3, 56-57). As for consultation in impact assessment, “a sample analysis suggests that in the case of public con‐ sultations supporting evaluations, response levels are relatively lower (on average 455 responses for evaluations vs on average 1 643 responses for new initiatives)” (European Commission, Taking Stock of the Commission's Better Regulation Agenda, SWD(2019) 156 final12).

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periences or opinions (paragraph 2.3), making them aware of the extent to which their contribution is going to impact the final decision (paragraph 2.5). 2.2 Early Stage Consultation In order to activate the virtuous circle of consultation, it is crucial not only to allow stakeholders’ contribution to come, but also to give them the pos‐ sibility of influencing decision-making. To reach these aims, a consultation should not be launched on an al‐ ready drafted law or regulation, on the contrary, it is important to start the process at the earliest possible stage of decision-making. These require‐ ments, which are widely acknowledged from a better regulation point of view, are also valuable from a cognitive-based point of view in order to neutralise, as far as possible, the confirmation bias which can affect public authorities.34 Indeed, the decision-maker could be more likely to be influ‐ enced by confirmation bias when he “has already spent much time and ef‐ fort in preparing the proposed rules, and has possibly also made public an‐ nouncements in which it expressed its commitment to enact them”.35 From stakeholder’s point of view, a proposal already drafted in detailed articles could prevent them from suggesting different options and leading to limit their contribution to commenting the proposed option and not suggesting a different one.

34 People select information which confirms their belief, while not paying attention to different views (Raymond S. Nickerson, ‘Confirmation Bias: A Ubiquitous Phe‐ nomenon in Many Guises’ (1998) 2 Review of General Psychology 175); Charles G. Lord and Cheryl Taylor, ‘Biased Assimilation: Effects of Assumptions and Ex‐ pectations on the Interpretation of New Evidence’ (2009) 3, Social and Personali‐ ty Psychology Compass 827. 35 Eyal Zamir and Doron Theichman, Behavioural law and economics, cit., 399. “Af‐ ter agency members have devoted months, or even years, to preparing a proposed rule and made highly visible public comments endorsing that proposal, the attitude maintenance bias suggest suboptimal processing of later public inputs” (Stephanie Stern, ‘Cognitive Consistency: Theory Maintenance and Administrative Rulemak‐ ing’ (2002) 63 University of Pittsburgh Law Review 589, 591). At the same time, “biased assimilation leads people to interpret new information in ways that allows them to confirm, rather than challenge, existing beliefs” (Eyal Zamir and Doron Theichman, Behavioural law and economics, cit., 633).

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Moreover, when firms are unwilling to share information, an advanced notice of proposed rulemaking might help different interests involved to be expressed,36 and thus decision-makers to choose the most effective strategy “to penetrate a regulated industry's silence and gather information needed to develop effective regulation”.37 An early consultation process is also the most effective way to make ac‐ cessibility really tangible to stakeholders. Indeed, the stakeholders’ per‐ ception of fairness, upon which the “procedural justice” approach is built up, is mainly based on the perception of having the chance to have a say in decision-making.38 In this approach, compliance is driven by the percep‐ tion of fairness, and this perceived fairness is not necessarily linked to the existence of procedural obligations imposed at legislative level, but main‐ ly on past experiences. Therefore, giving stakeholders the possibility of in‐ fluencing decision-making is crucial for the success of future consultation and, in general, to rebuild public trust. 2.3 Accessibility of the Documents It is widely recognised that barriers to effective engagement are also relat‐ ed to a lack of understanding of the importance of the proceeding, as well

36 Cary Coglianese, Richard Zeckhauser, Edward A. Parson, ‘Seeking truth for pow‐ er: informational strategy and regulatory policymaking’ cit., 277, 302. 37 For instance, they can exploits asymmetries of interests or create incentive to dis‐ close (Cary Coglianese, Richard Zeckhauser, Edward A. Parson, ‘Seeking truth for power: informational strategy and regulatory policymaking’, cit., 277, 279). 38 Tom R. Tyler, ‘What is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures’ (1988) 22 Law and Society Review 103. “The bestdesigned regulation is a poor tool for governing if it can only be enforced through constant surveillance and draconian punishment. It makes much more sense to seek to improve both the objective quality of a regulation and the impressions of fair treatment engendered by citizens’ personal experience with the regulation” (E. Allan Lind and Christiane Arndt, ‘Perceived Fairness and Regulatory Policy: A Behavioural Science Perspective on Government-Citizen Interactions’ (2016) 6 OECD Regulatory Policy Working Papers, 10). “The absence of considerations of fairness and loyalty from standard economic theory is one of the most striking contrasts between this body of theory and other social sciences – and also between economic theory and lay intuition about human behavior” (Daniel Kahneman, Jack L. Knetsh, Richard H. Thaler, ‘Fairness and the Assumption of Economics’ (1986) 59 The Journal of Business S285).

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as to a lack of awareness when a given interest is involved. Moreover, law and regulation are traditionally characterised by legalistic language, ana‐ lytical reasoning and are - hopefully - supported by quantitative data. This style does not "come naturally" to people and it contributes to leading in‐ dividuals and small enterprises to being under-voiced.39 Many measures could be implemented in order to address these out‐ comes. Interestingly, here the regulatory implications arising from drafters and cognitive scientists, overlap.40 Firstly, legal drafters suggest using simplified and plain language, in order for everybody to immediately un‐ derstand the problem at stake and be able to express their position on the proposed regulatory options or reforms.41 An executive summary which provides comprehensible information should be an aid, provided that it does not result in being an additional ineffective requirement to rule writ‐ ers.42 Moreover, as already mentioned, accessibility can be improved and some cognitive bias can be overcome by standardisation, simplification and the support of images to summarize the main content of a given docu‐ ment (an approach qualified as cognitive empowerment43 or educative nudges44).45

39 Cynthia R. Farina, Dymitri Epstein, Josiah Heidt, Mary J. Newhart, ‘Knowledge in the People: Rethinking Value in Public Rulemaking Participation’ (2012) 47 Wake Forest Law Review, 101, 103. 40 However, what characterizes the cognitive-based approach from others (and the le‐ gal drafting among them) is that it allows decisions to be based on experiments and is therefore truly evidence-based. 41 Jenny Steward, The Dilemmas of Engagement. The Role of Consultation in Gover‐ nance, cit., 51. 42 To this regard, the US experience is remarkably interesting. Here an executive summary requirement imposed on executive departments or agencies and on inde‐ pendent agencies has increased its use in complex rules, but has failed to enhance the readability both of the summary and of the rules (Cynthia R. Farina, Mary Newhart and Cheryl Blake, ‘The Problem with Words: Plain Language and Public Participation in Rulemaking’ (2015) 83 George Washington Law Review 1358). 43 Fabiana Di Porto and Nicoletta Rangone, ‘Behavioural Sciences in Practice: Lessons for EU Policymakers’, in A. Alemanno and A.-L. Sibony (eds), Nudge and the Law: A European Perspective? (Hart Publishing 2015) 29, 31. 44 Cass R. Sunstein, ‘People Prefer Educative Nudges (Kind Of)’ (2016) 66 Duke Law Journal 122. 45 For a broader analysis of stakeholders’ and public authorities’ bias which can un‐ dermine consultation and possible solutions, see N. Rangone, ‘Improving consul‐ tation to secure EC democratic legitimacy. From procedural requirements to be‐ havioural insights’ (2020) European Law Journal, forthcoming.

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Secondly, in order to overcome the lack of understanding, as well as the information overload,46 it would be useful to provide tailored and differen‐ tiated information for “clustered” stakeholders (e.g. expert or lay peo‐ ple).47 Thirdly, psychologists demonstrate that it is important to give citizens room for comments in order to share their experiences on compliance or implementation (the so-called situated knowledge).48 However, it has been also underlined that an open format “requires more resources in terms of staff and expertise than ticking boxes in a standardised questionnaire” and could “lead to lower participation rates by groups with fewer resources”.49 This is a trade-off that can be addressed by decision-makers through a case by case approach. Linguistic diversity is another issue that might hinder the accessibility of documents in EU consultation. It is a well-known potential barrier that

46 Indeed, a central theme of public consultation is that “regardless of the structure of consultation (free response format, box-ticking format, a given number of ques‐ tions, etc.) [and] (…) even with the assistance of software [e.g. a computer-assist‐ ed text analysis technique that would group together document using similar lan‐ guage in a given consultation] the sheer volume of information submitted to a giv‐ en consultation was overwhelming. Brief documents that ran three to five pages could contain information on an interest group’s position on several issues, some of which may not even be directly relevant to the legislative proposal in question; some submissions ran to well over 100 pages and, as can be imaged, contained even more information about an interest group’s policy positions” (Marc Opper, Christine Mahoney and Heike Kluver, ‘How to Deal Effectively With Information Overload and the Proliferation of Consultations?’, Outreach Workshop, 2 Decem‐ ber 2014, at the Centre for European Policy Studies (CEPS). 47 Cass R. Sunstein, ‘Deciding by default’ (2013) 162 University of Pennsylvania Law Review, 1. 48 This “situated knowledge”, have been described as referring to “information about impacts, problems, enforceability, contributory causes, unintended consequences, etc. that is known by the commenter because of lived experience in the complex reality into which the proposed regulation would be introduced” (Cynthia R. Fari‐ na Mary Newhart, Josiah Heidt, ‘Rulemaking vs. Democracy: Judging and Nudg‐ ingPublic Participation That Counts’ (2012) 2 Michigan Journal of Environmental & Administrative Law 123). See also Sofia Ranchordas, ‘Consultations, Citizen Narratives and Evidence-Based Regulation. The Strange Case of the Consultation on the Collaborative Economy’ cit. 52. 49 Jan Beyers and Sjhara Arras, ‘Who feeds information to regulators? Stakeholders diversity’ cit. 1, 7.

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European institutions try to overcome in the framework of administrative and budgetary constraints.50 2.4 Reasonable Time to Intervene All rules which list the minimum requirements for consultation underline that allowing an adequate timeframe to intervene is crucial for effective consultation. At European level, this lasts twelve weeks for most major new or exist‐ ing policies,51 and eight weeks are given following Commission adoption for legislative proposals and impact assessment presented to the European

50 “In April 2017, the European Commission adopted new internal rules that require documents relating to public consultations concerning “priority initiatives” in the Commission’s annual Work Programme to be published in all EU official lan‐ guages. All other public consultations need to be made available at least in Eng‐ lish, French and German. Public consultations of “broad public interest” should be made available in additional languages. Furthermore, “consultation pages or a summary thereof need to be translated into all EU official languages” (European Ombudsman, Multilingualism in the EU institutions. Report on public consulta‐ tion, 15 February 2019, p. 8). On “linguistic accessibility” regulation see Better Regulation Toolbox, p. 397. To this regard, the European Court of Auditors “found scope for clarifying the criteria used to decide whether to translate consultation documents into all official languages to ensure that initiatives of broad public interest are accessible to all EU citizens” (special report 14/2019 ‘Have your say!’: Commission public consultations engage citizens, but fall short of outreach activi‐ ties, 13). 51 European Commission communication, Better regulation for better results - An EU agenda (COM(2015)215 final). 52 While this feedback has been criticised because it is limited to items the Commis‐ sion has already adopted, it can - at times - “generate a high number of replies, which could be of particular value in cases where no impact assessment and/or no public consultation could be carried out for reasons of urgency” (European Com‐ mission, Taking Stock of the Commission's Better Regulation Agenda, SWD(2019) 156 final, p. 11). The feedback period is limited to four weeks for “roadmaps”, in‐ ception impact assessments and “fitness checks” of existing rules, as well as for delegated acts and important implementing acts, with certain well-defined excep‐ tions (e.g. acts of individual application, in cases of urgency or where scientific advice is followed without any deviation or in “areas in which agencies such as EFSA have given a scientific advice”, Better regulation toolbox, tool #56, point 4.4). This potential exemption allowed to agencies (such as ECHA or the Euro‐ pean Banking Agency) has been criticized (Peter Chase and Adam Schlosser, ‘Bet‐

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Parliament51 (the so-called feedback mechanisms).53 A differentiated ap‐ proach is provided at national level.54 For instance, in Italy it varies from eight weeks in governmental rule-making55 (four weeks for consultation in the framework of an impact assessment),56 six weeks for law-making (according to the Senate guidelines, but a similar approach has not been pointed out by the Chamber of Deputies). Moreover, a different consulta‐ tion length is provided by each independent authority (from four to eight weeks).57 The stronger message from these rules is that giving a reasonable time to answer written consultation (and for taking part in consultation semi‐ nars or meetings) is crucial for consultation to be effective. This is impor‐ tant for weak and non-organised interests, which might not have an al‐ ready drafted position even within on topics that are of their crucial inter‐ est. However, it is also important for well-organised stakeholders so as to allow them to provide valuable contribution, as already mentioned before. The duration of consultation also has its drawbacks, the most important being an increase in the timing of the decision-making. To this regards, proportionality is always the guiding principle. As underlined by the UK guidelines, consultation should last for a time frame proportional to the

53

54 55 56 57

ter Regulation – An Ongoing Journey’ (2015) 6 European Journal of Risk Regu‐ lation 378). The feedback collection “offers an opportunity for stakeholders to express general views on a specific document (…), not based on specific questions or consultation background documents. (…) [Otherwise] when consulting, the Commission proac‐ tively seeks evidence (facts, views, opinions) on a specific issue” (Better regu‐ lation toolbox, tool #56 on delegated acts and implementing acts). OECD, Better Regulation practices across the European Union (OECD publishing 2019) 49. Italian Guidelines on public consultations, Directive n. 2/2017. Art. 17, para. 3, directive of the President of the Council of Ministries n. 169/2017. A minimum of four weeks (but derogation should be provided in exceptional cir‐ cumstances) is provided by the Authority for electronic communications (art. 3, decision n. 453/03/CONS), by the Authority for corruption prevention (art. 3, regulation 13 June 2018); by the Authority for energy, water and waste (art. 4, de‐ cision n. 649/2014/A), by the Authority for transports (art. 5, regulation 16 Jan‐ uary 2014); eight weeks by the Bank of Italy, which can also impose a different length according to the proportionality principle, based on nature, relevance, com‐ plexity of the topic, and the timing for final decision (art. 3, regulation 9 July 2019). According to the financial market supervisor-Consob, the timeframe is fixed by the authority in the consultation document (art. 5, regulation 5 July 2016, n. 19654).

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nature and potential impact of the proposal, as well as allowing the quality of participation.58 The period of the year in which consultation is organised could also have an impact in increasing or decreasing participation. For instance, while the 2017 Italian guidelines pointed out that “the administration shall avoid to conduct a consultation exclusively during holiday periods”,59 two ministerial consultations on public procurement performed in 2018 and 2019 lasted four weeks, mainly in the month of August which is a typical vacation period in Mediterranean countries. 2.5 Feedback and Justification of Final Rules It is crucial for trust to give individuals and all participants “feedback to their contributions by informing them on how the EU [or other decisionmakers] is consequently using their input and on the reasoning behind the final result”. 60 It will indeed, reinforce the willingness to participate in fu‐ ture consultation, while inadequate feedback could crowd out the motiva‐ tion in taking part in law-making or rule-making. The first minimum way to provide feedback is to acknowledge people that their comments have been received. A second way to provide feedback is to ensure adequate publicity to these comments61. It can be allowed by the publication of all integral doc‐ uments received plus an explanation document which provides at least a synthesis of the positions expressed62. Both acknowledgements and trans‐ parency of comments make stakeholders aware of different interests in‐ 58 Cabinet Office, Consultation principles: guidance, 2012, last updated 2018. 59 Point 9, Ministry for simplification and public administration directive n. 2/2017, Guidelines for public consultation in Italy. 60 European Parliament, Potential and challenges of e-participation in the European Union, cit., 36. 61 “Written contributions should be made public on the dedicated consultation web‐ page. In the case of stakeholder consultation events (meetings, hearings, confer‐ ences, etc.), summary minutes and speeches or presentations provided during the event should be made public on the consultation webpage” (European Commis‐ sion, Better Regulation Toolbox, 83). 62 “Lots of issues come up through the consultation, only to disappear into the black hole of bureaucracy. Those who participated in the process hear nothing until an announcement is made, but often there is no tangible outcome at all. Remedy: agencies should produce a consultation report that conveys the comments that

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volved, which in notice and comment is the unique way to allow an indi‐ rect dialogue among participants (whose opportunity increases in case of multiple rounds of consultation, but can never be direct). It is also crucial to make decision-makers accountable to stakeholders and to public author‐ ities: the Government to the Parliament and to judges, the Parliament to judges, both to eventual supervisory bodies and to citizens. Moreover, and most importantly, feedback has a visible impact on engagement and “stakeholders tend to lose interest if they see that their views are ignored or not taken seriously”.63 Despite the crucial role of feedback and publici‐ ty, the approaches to them differ not only from one country to another, but also within the same country, from a decision-maker to another, or even from one consultation process to another in the same institution.64 The third way to provide feedback is to inform stakeholders on how their comments influenced final decisions.65 This remains a sensitive and too often an unanswered question everywhere, due to the difficulty to as‐ sess the extent to which comments influenced the final decision.66 A way to partially overcome the lack of data is to improve the transparency of the evaluation process. For instance, decision-makers should provide a “guid‐

63 64

65

66

were made” (Jenny Steward, The Dilemmas of Engagement. The Role of Consulta‐ tion in Governance, cit., 53). OECD, Best practice principles on stakeholders engagement in regulatory policy, cit., para. 59. For instance, in 2016 four Italian independent authorities made public the results of all of the consultation performed, although using different types of feedbacks, e.g. the publication of all single comments or a summary of the main positions (Carolina Raiola, ‘La partecipazione al processo decisionale’, in Eleonora Cava‐ lieri, Edoardo Chiti (eds.), L’analisi di impatto e gli altri strumenti per la qualità della regolazione. Annuario 2016 (Osservatorio AIR 2017) 168). In 2017-2018, only one independent authority provided feedback for all of the consultations per‐ formed (Carolina Raiola, ‘Le consultazioni pubbliche’, in Gabriele Mazzantini and Nicoletta Rangone (eds.), Osservatorio AIR. L’analisi di impatto e gli altri stru‐ menti per la qualità della regolazione, cit., 139). Feedback should also be about “the number of changes finalized, or the cost sav‐ ings from removing or changing a regulation that resulted from stakeholder en‐ gagement” (para. 59, OECD, Best practice principles on stakeholder engagement in regulatory policy. Draft for public consultations (OECD publishing 2017). Stuart Shapiro, ‘Does the Amount of Participation Matter? Public Comments, Agency Responses and the Time to Finalize a Regulation’ (2008) 41 Policy Sci‐ ences, 33.

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ance about methodologies for evaluating the comments received”.67 More‐ over, stakeholders should have access to “the information necessary to re‐ produce or assess the agency’s technical or scientific conclusion”.68 A fourth way to provide feedback to stakeholders is to give reasons in the motivational section of the legislation or regulation of how consulta‐ tion has been run and how the results have been used. Indeed, whether it could be difficult to assess the extent to which a single contribution affects the final decision, decision-makers must clearly show the main position expressed in the final decision justification.69 An explanation must be giv‐ en not only on why a consultation method has been selected, which con‐ sultation target was involved, at what stage(s) in decision-making the con‐ sultation was been performed, but also to what extent and why the results were (or weren’t) taken into account in the final decision. The final justifi‐ cation should also details the circumstances which justified an exception to consultation process (for instance, urgency procedure needed counter natural disasters or pandemics). More than a simple procedural arrangement, the justification of final decision is a turning point in law-making and rule-making.70 Indeed, the motivation of legislation and regulations can have a beneficial impact on the perception of the procedural fairness of decision-makers and thus on compliance and public trust.71 This justification of legislation or regu‐ lation cannot be substituted by any other means, for instance an impact as‐

67 “The tool box does, however, rightly underscore that all impact assessment reports must include a report on the substance of those comments” (Peter Chase and Adam Schlosser, ‘Better Regulation – An Ongoing Journey’ cit. 378). See also European Parliament, Potential and challenges of e-participation in the European Union, 2016, p. 36. 68 Administrative Conference of the United States, Adoption of Recommendations and Statement Regarding Administrative Practice and Procedure, Science in the Administrative Process, in Federal Register, vol. 78, n. 132, 2013, p. 41358. 69 For instance, art. 9 of the environmental impact assessment Directive n. 2011/92/UE, imposes to infor the public “on the main reasons and considerations on which the decision is based, including information about the public participa‐ tion process. This also includes the summary of the results of the consultations and the information gathered (…) and how those results have been incorporated or oth‐ erwise addressed”. 70 Maria De Benedetto, ‘La motivazione delle regole’ (2014) 185-186 Studi parla‐ mentari e di politica costituzionale 7. 71 Tom R. Tyler, ‘Citizen Discontent with Legal Procedures: A Social Science Per‐ spective on Civil Procedure Reform’, cit., 871, 889.

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sessment report where the results of consultation performed are summa‐ rized. Indeed, once performed an impact assessment, the original proposal is often substantially modified, without decision-makers being (usually) obliged to perform another assessment. 2.6 Consultation to Secure Compliance A crucial point which is often left behind is to collect information on how to secure compliance already within the decision-making process, and thus on how to organize enforcement strategies.72 Indeed, there is a risk that compliance and public trust are crowded out when citizens and firms see that legislation and regulation are not implemented, or when people break the former, without provoking an adequate reaction on path of public au‐ thorities.73 In order to identify and assess in advance the enforcement strategies, decision-makers need data on the ability of enforcers to implement a given strategy: what criticism a rule is willing to face - e.g. limited budgetary or human resources, lack of a specific knowledge - or whether administrators are able/ready to enforce it in respect of the spirit of the rule.74 Decisionmakers need also information about specific drivers involved in compli‐ ance75 (such as internal motivation or social norms which could interfere with it).76

72 Robert Baldwin, ‘Why Rules Don't Work’ (1990) 53 Modern Law Review 321. 73 Robert A. Kagan and John T. Scholz, ‘The ‘Criminology of Corporation’ and Regulatory Enforcement Strategies’ in Keith Hawkins and John M. Thomas (eds), Enforcing Regulation (Kluwer-Nijhoff Publishing 1984) 73; Nicoletta Rangone, ‘Making law effective: behavioural insights into compliance’ (2018) 3 European Journal of Risk Regulation 484. 74 “Effective lawmaking requires a meticulous consideration of compliance and en‐ forcement issues when rules are being designed” (M. Mousmouti, Designing Ef‐ fective Legislation (Elgar 2019) 48). 75 “Consultation and stakeholders involvement is a useful tool to detect the reaction of end users to planned rules. Asking the right questions can provide information and evidence on factors or elements that will facilitate or hinder compliance” (M. Mousmouti, Designing Effective Legislation cit. 57). 76 For instance, in drafting regulation intended to incentivise whistle-blowing (in the framework of corruption prevention measures), it’s important to assess whether a monetary incentive could be effective, or can paradoxically undermine the internal motivation to report corruption (Nicoletta Rangone, ‘A Behavioural Approach to

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In order to reach this information, consultation should be organized ac‐ cordingly. Expert assessment or panel inspectors’ could be organized in order to collect information on the potential criticalities of the enforce‐ ment step. The stakeholders’ point of view is also valuable in order to show the inspector or public administration way, to implement or interpret a given rule. For instance, whether the problem to deal with is the effec‐ tiveness of a given existing rule, citizens should be consulted in a way which effectively allows them to have their say on the difficulties they face in implementing it (e.g. by giving them room for comments). More‐ over, before consultation is organized it would be useful to check, for in‐ stance, citizens’ complaints on providers’ behaviours sent to decisionmakers or those analysed in the framework of an alternative dispute reso‐ lution.77 3. How to Balance Increased Participation and Collection of Valuable Contribution Only? Undoubtedly, the minimum requirements lead to an increased participation in decision-making. However, there is no clear relationship between major participation and more effective consultation, as well as an increase in public trust. Paradoxically, the opposite should result in being true. In‐ deed, whether consultation in rule-making or in law-making are organized as a “plebiscite”,78 the side effect is that a limited time can be devoted in “selecting the policy option that best fulfills the statutory mandate or pub‐ lic interest”.79 Moreover, a massive increase in participation imposes deci‐

Administrative Corruption Prevention’, in Augusti Cerrillo i Martínez and Juli Ponce (eds.), Preventing Corruption and Promoting Good Government and Public Integrity (Bruyland 2017) 77-78). 77 On the “regulatory redress” as an ex post deterrence approach see Christopher Hodges, ‘Delivering Redress through Alternative Dispute Resolution and Regu‐ lation’, in Willem H. van Boom and Gerhard Wagner (eds.), Mass Torts in Europe. Cases and Reflections (De Gruyter 2014), 241. See also Florentin Blanc and Michael Faure, ‘Smart Enforcement. Theory and Practice’ (2018) 20 European Journal of Law Reform 78. 78 Cynthia R. Farina Mary Newhart, Josiah Heidt, ‘Rulemaking vs. Democracy: Judging and NudgingPublic Participation That Counts’ cit. 79 Cary Coglianese, ‘The Internet and Citizen Participation in Rulemaking’ (2004) 1 IS/a Journal of Law and Policy 33.

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sion-makers to analyse and feedback documents (which not necessarily “contain valuable information for the agency”),80 leading to a crowd out of thoughtful analysis of too numerous comments.81 Lastly, it is not clear who should benefit from increased stakeholders’ consultation, whether citizens and small enterprises or well organized firms and associations.82 How to find a balance between allowing all stakeholders’ opportunities to contribute83 and the need of collecting valuable contribution only?84 Firstly, it could be helpful to make stakeholders aware of the real possi‐ bility of influencing the final law or regulation. To this aim, consultation documents or websites should make clear which are the problems with the current situation (status quo) and which aspect/s of the proposed rule or

80 Cynthia R. Farina Mary Newhart, Josiah Heidt, ‘Rulemaking vs. Democracy: Judging and NudgingPublic Participation That Counts’ cit. 81 Stuart Shapiro, ‘Does the Amount of Participation Matter? Public Comments, Agency Responses and the Time to Finalize a Regulation’ cit. 82 An attentive observer underlines that the last Better Regulation package did not address the lack of inclusiveness. For instance, “the criteria used to identify ‘stake‐ holders categories’ [in consultation mapping] put a premium on ‘individuals and groups with expertise or technical knowledge’ as opposed to those most affected by that policy initiative” (Alberto Alemanno, ‘How Much Better is Better Regu‐ lation?: Assessing the Impact of the Better Regulation Package on the European Union – A Research Agenda’ (2015) 6 European Journal of Risk Regulation 344, 349). Moreover, “with the new [European] Agenda, stakeholders can express their views at every stage of the legislative development process as well as throughout a policy's entire life cycle. (…) The beneficiaries [of this additional consultation ex‐ ercise] will most likely not be citizens or public interest groups, which direct their overstretched resources towards the most relevant moments in the decision-mak‐ ing process for maximum input. Well-resourced industry interests will be best placed to exploit these additional opportunities by constantly providing ever-more detailed evidence, opinions and feedback to the Commission” (Ursula Pachl, ‘Repercussions of the European Commission’s Better Regulation Agenda on Con‐ sumer Interests and Policy’ (2015) 3 European Journal of Risk Regulation 375, 376-377). 83 What decision-makers should improve is the “opportunity” to participate, rather than the number of participants (Cynthia R. Farina Mary Newhart, Josiah Heidt, ‘Rulemaking vs. Democracy: Judging and NudgingPublic Participation That Counts’ cit.). 84 This recalls the need to balance between the right to be heard and the decisionmaking process efficiency (Giulio Napolitano and Michele Abrescia, Analisi eco‐ nomica del diritto pubblico (Il Mulino 2009) 258), as well as the need of equal op‐ portunities for both strong and weak stakeholders in order to participate (Marco D’Alberti, ‘Poteri pubblici e autonomie private nel diritto dei mercati’ (2000) Riv‐ ista Trimestrale di Diritto Pubblico 395).

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area could be potentially affected by stakeholders’ contribution.85 This is not necessarily an easy solution, because it assumes that decision-makers “have determined the overall direction the legislation [or regulation] even prior to its final passage”, which is not always the case. Moreover, such an approach could also be dangerous whether it induces decision-makers to adopt a rule even if evidence collected demonstrates that the proposal is unnecessary.86 Secondly, another way is to adequately inform people about the limits of the public authority jurisdiction.87 Thirdly, the consultation methods should be selected according to dif‐ ferent consultation targets.88 For instance, panels should be preferred if the topic does not need citizen involvement,89 on the contrary, seminars would be helpful to increase citizen participation. Another example is e-consulta‐ tion, which is cheap and easy with regard to involving well-organised en‐ terprises, but it risks marginalizing some and - quite paradoxically - in‐

85 “For example, if the Commission wishes to draft new legislation concerning car‐ bon emissions and is interested in understanding the level of reduction that differ‐ ent sectors wish to see, the Commission should provide a questionnaire with a number of discrete answers (reduce by x percent, reduce by y percent, reduce by z percent) and ask respondents to tick the box that corresponds to their preference (or most closely to their preference). If the Commission wishes to put entire pieces of legislation up for consultation then it should divide a given piece of legislation into parts, and, yet again, be explicit in which aspects of each section are open to consultation and to change” (Marc Opper, Christine Mahoney and Heike Kluver, ‘How to Deal Effectively With Information Overload and the Proliferation of Con‐ sultations?’ cit.). 86 “Unlike in the United States where bills can die in many stages of the legislative process, evidence suggests that most proposals in the EU become law” (Marc Op‐ per, Christine Mahoney and Heike Kluver, ‘How to Deal Effectively With Infor‐ mation Overload and the Proliferation of Consultations?’, cit.). 87 Cynthia R. Farina Mary Newhart, Josiah Heidt, ‘Rulemaking vs. Democracy: Judging and NudgingPublic Participation That Counts’ cit. 88 “Modes of consultation need to reflect the fact that different legitimate interests do not have the same access to the resources and opportunities to express their views to government, and that a diversity of channels for the communication of these views should be created and maintained” (OECD, Better Regulation Practices across the European Union, cit., p. 52). 89 Stuart Shapiro, ‘Can Analysis of Policy Decisions Spur Participation?’ cit.

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duces a mass of comments which “only expresses opinions or preferences without elaboration or deliberation”.90 4. Conclusions A central condition for trust (or better) “trust in the motives of authori‐ ties”91 is related to the perception of fairness and openness of decisionmaking process.92 These people’s judgement is based – among other things - on the possibility to participate and potentially influence public authorities,93 as well as on the justification of final decisions. Therefore, if a lack of notice could lead to an administrative decision being challenged in court,94 the perception of an unfair proceeding could result in even worst consequences: citizens or firms who feel that they are being treated unfairly will refuse to be involved in decision-making anymore and will be more likely to breach final rules. The chapter claims that, in order to avoid this outcome, it is important to respect certain minimum requirements for consultation. Despite these requirements not being a panacea, they are, however, a good reminder to people (both politicians and staff) leading consultation, resulting in an im‐ provement in the decision making process. However, in order to play this role, the minimum requirements need to be enriched so as to ensure an ef‐ fective participation of all relevant stakeholders, as well as providing sub‐ stantial feedback on the extent to which their contribution has had an im‐

90 Cynthia R. Farina Mary Newhart, Josiah Heidt, ‘Rulemaking vs. Democracy: Judging and NudgingPublic Participation That Counts’ cit. 91 Tom R. Tyler, ‘Public Mistrust of the Law: A Political Perspective’ (1998) 66 Uni‐ versity of Cincinnati Law Review 847, 858-59, 866-67. 92 Tom R. Tyler, ‘What is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures’, cit., 103. 93 Findings from an empirical study on the relationship between electronic participa‐ tion and trust in local governments reveal that the satisfaction with government re‐ sponsiveness is positively associated with the participants’ perception of influenc‐ ing decision-making (Soonhee Kim and Jooho Lee, ‘E-Participation, Transparen‐ cy, and Trust in Local Government’ (2012) 72 Public Administration Review 820). 94 See, for instance, the Italian Council of State, VI, n. 1532/2015 or the Regional administrative judge (first instance)-Lombardy, judgement n. 509, 593, 594 e 1895 of 2015. To this regard, the different degree of protection provided in administra‐ tive decision-making and in law-making in Italy is related to the impossibility to appeal to the Constitutional Court in case of breaching parliamentary regulations.

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pact on the final decision. The chapter also argues that it is important to take advantage of consultation proceedings in order to collect data on how to secure compliance.95 Lastly, in order that public authorities may be perceived as legitimate96 and thus to enhance public trust, a non-formalistic approach to minimum requirements for consultation is crucial. In other words, these minimum requirements need real acceptance by officers leading consultation and they should not be implemented as if they were yet another bureaucratic fulfillment. This would only lead to an increased “ossification” of deci‐ sion-making97 intended to draft new rules or to abrogate the existing ones.98 This approach is more likely to appear when these requirements are provided by a compulsory hard regulation. In this case, minimum re‐ quirements risk being implemented in a strict and formalistic way, in order to avoid a judicial review only.99 In order to deal with this outcome, pro‐

95 The techniques to design consultation as to neutralize or bring out bias both of stakeholders and decision-makers are outside the scope of this chapter and are ad‐ dressed by the author of this chapter in ‘Improving consultation to ensure the EC’s democratic legitimacy. From traditional procedural requirements to behavioural insight’, cit. 96 Tom R. Tyler, ‘Psychological Perspectives on Legitimacy and Legitimation’ (2006) 57 Annual Review Psychology 375. 97 “Empirical examination of the notice and comment process can (…) shed light on the cost of increasing participation in policymaking. Responding to comments takes time for regulatory agencies. While there is nearly universal agreement that some participation in rulemaking is beneficial, there is also concern that the regu‐ latory process has become so burdened by procedural requirements that it is no longer a good policy making option for agencies” (Stuart Shapiro, ‘Does the Amount of Participation Matter? Public Comments, Agency Responses and the Time to Finalize a Regulation’ cit. 33, 35). 98 Ossification burdens both regulation activity and deregulation. Interestingly, Stuart Shapiro (Embracing Ossification: With Donald Trump in the White House, proregulation forces are changing their view on regulatory procedure’ (2018) 41 Regulation, 8, 10) underlines that the reaction to the new US administration at‐ tempts to deregulate “show that those who benefit from regulations and the inter‐ est groups that represent them also may prefer regulations that are sticky or a regu‐ latory process that has at least some degree of ossification”. A similar argument has been developed by Caroline Cecot (‘Deregulatory cost-benefit analysis and regulatory stability’ (2019) 68 Duke Law Journal 1593, 1599): “a well-supported, high-quality CBA (…) becomes an obstacle to repealing regulations by president‐ ial fiat”. 99 At the same time, a thorough judicial review could also be an incentive for a high quality consultation process.

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portionality is always the core principle, which should inform all consulta‐ tion process, from the target definition, to the choice of the method, to the number of consultation rounds and the timeframe etc. Therefore in order to be decisive in increasing effective consultation and public trust, these minimum requirements need an open and supportive approach of the offi‐ cers leading consultation, who behave according to a respectful engage‐ ment with others and “committed to doing their utmost to deliver public value”.100 As underlined in the introductive chapter, trust can indeed be considered as a sentiment, which needs a person-to-person relationship.

100 “Only if the people working in a regulatory authority are committed to doing their utmost to deliver public value, and to learning and improving in their ability to deliver that value through respectful engagement with others, can a regulator hope to achieve true excellence” (Cary Coglianese (ed.) Achieving Regulatory Excellence (Prookings Institution Press 2017) 13).

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Improving Confidence in Legislation via Better Regulation Tools: the Strategic Role of Parliaments Elena Griglio

Summary: 1. Introduction. The crisis of Confidence in Legislation as a Crisis of Democratic Legitimacy – 2. Better Regulation’s Contribution to Increase the Confidence in Legislation – 3. Parliaments as Strategic Actors for Fulfilling the Proposed Vision of Better Regulation – 4. Parliaments’ Engagement in Better Regulation Processes – 5. Better Regulation in Par‐ liament: Legislation or Oversight - 6. Conclusions. Strengthening the Con‐ fidence Dimension to Improve the Confidence in Legislation 1. Introduction. The Crisis of Confidence in Legislation as a Crisis of Democratic Legitimacy The crisis of confidence in legislation can be defined as a crisis of demo‐ cratic legitimacy. Law’s crisis has traditionally been depicted as a multidi‐ mensional phenomenon which is fostered by concurrent factors: the marginalisation of the legislative act in the hierarchy of the sources of law; the dysfunctions in the deliberative procedures leading to its approval; and the limits inherent to the substantive definition of policy solutions.1 Simi‐ larly, the crisis of confidence in legislation can only be tackled from holis‐ tic perspective, inclusive also of political and axiological factors. On the one hand, the confidence notion, related to law-making, sup‐ ports several meanings, but fundamentally can be referred to the relational dimension that links the law to its final addressees: confidence as the ‘faith or belief that the law will act in a right, proper, or effective way’ describes a durable relation which should be constantly fed by connecting

1 Francesco Carnelutti, ‘La crisi della legge’ (1930) 22 Rivista di diritto pubblico e della pubblica amministrazione in Italia 424; Georges Ripert, Le déclin du droit: études sur la législation contemporaine (Paris, Librairie generale de droit et de ju‐ risprudence, 1949); René Savatier, ‘L’inflation législative et l’indigestion du corps social’ (1977) Foro italiano 174.

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to substantive values, the values of representativeness, responsiveness and effectiveness of public action. On the other hand, this definition triggers the notion of democratic le‐ gitimacy, which in its turn opens to a large variety of definitions and ap‐ proaches. Among them, the three dimensions of the throughput, input and output democracy seem to gain major significance for the topic addressed: throughput democracy focuses on the process, input democracy on the connection with citizens’ political demands and concerns, output democra‐ cy on the outcomes produced.2 Analysing the crisis of confidence in legis‐ lation from the viewpoint of the concurrent dimensions of democratic le‐ gitimacy brings about three major arguments. First, from the perspective of the throughput democracy, the law-mak‐ ing process is suffering from a lack of accountability, transparency and in‐ clusiveness. Many factors contribute to this outcome. Among them, demo‐ cratic institutions increasingly resort to emergency legislation; pursuant to the longstanding principle that ‘if hard cases make bad laws, emergency makes worse’,3 this trend is traditionally conceived of as opponent to qual‐ ity legislation requirements. As a matter of fact, emergency legislation, adopted through fast-tracking procedures in response to urgencies and im‐ pelling policy concerns, is usually raising both formal and substantial lim‐ its.4 Second, from the perspective of the input democracy, current legislative trends mark a fall down in law’s responsiveness to the political demands and concerns raised by citizens. Several causes foster this trend; among them, the legislative inflation5, the amplified complexity of regulatory is‐

2 Vivien Schmidt, ‘Dealing with Europe’s other deficit’ (2012) 19 Public Policy Re‐ search 108. Joseph Weiler, ‘Europe in crisis. On ‘political messianism’, ‘legitima‐ cy’ and the ‘rule of law’’ (2012) Singapore Journal of Legal Studies 248 ff. Kalipso Nïcolaidis, ‘European Democracy and Its Crisis’ (2013) 51 Journal Common Mar‐ ket Studies 351. 3 Cecil T. Carr, ‘Crisis legislation in Britain’ (1940) 40 Columbia Law review 1309. 4 Emergency legislation is usually adopted with a lower level of fact-finding, weigh‐ ing and balancing of alternatives, therefore with a lower degree of justification. Luc J. Wintgens, Legisprudence: Practical Reasons in Legislation (London, Routledge 2012) 307. 5 On legislative inflation as a sort of ‘pollution’, Rodolfo Pagano, Introduzione alla legistica, l’arte di preparare le leggi (Giuffrè 2004) 8.

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sues,6 the procedural intricacy of law-making7 increase the marginalisa‐ tion of large sectors of public opinion and inhibit the instillation of a trans‐ parent and plain interaction between decision-makers and the addressees of public policies. Third, from the perspective of the output democracy, many factors, in‐ cluding major economic crises, have weakened the effectiveness of legis‐ lation as a means to reach selected policy goals. The effects of the Euro‐ zone crisis on the output legitimacy of EU policies and of the legislative measures imposed on Member States have been a major concern in the last decade.8 Similarly, other crises, including the migration crisis and now the COVID-19 emergency, have seriously challenged the responsiveness of the available legislative solutions, exacerbating the regulatory deficits of both the EU and of the national governance.9 Based on a maximalistic approach to legisprudence, combining formal and instrumental aspects of legislation with the concern for political and legitimacy aspects,10 it can therefore be argued that the crisis of confi‐ dence of legislation is embedded in the overall functioning of representa‐ tive democracy. It specifically affects the role of representative assemblies in interpreting the claims raised by the represented, conveying these inputs in the law-making process and fostering the desired policy outputs. Sub‐ stantial changes have undermined law-making legitimacy: whereas this is formally dependent upon MPs’ election as legislators,11 current legislative trends reveal that the final drafting of statutory acts increasingly relies on decisions adopted at the executive level.

6 Office of the Parliamentary Counsel – Cabinet Office, ‘When Laws Become Too Complex. A review into the causes of complex legislation’ (March 2013). 7 Complexities related to law-making in multilevel settings are analysed in Patricia Popelier et al. (eds), Lawmaking in Multi-level Settings (Nomos 2019). 8 Vivien Schmidt, ‘Dealing with Europe’s other deficit’, cit., 108. 9 On the growing commitment-compliance gap that stands behind the EU’s crises (financial crisis, euro crisis, Greek crisis, Crimean crisis, Ukraine crisis, Syria cri‐ sis, migration crisis), see Tanja A. Borzel, ‘From EU Governance of Crisis to Cri‐ sis of EU Governance: Regulatory Failure, Redistributive Conflict and Eurosceptic Publics’ (2016) 54 Journal of Common Market Studies 9. 10 On this perspective, see Gema Marcilla, ‘Proportionality in Lawmaking. An At‐ tempt of Justification in the Light of a Constitutionalist and Argumentative Con‐ ception of Law’ in A. Daniel Oliver-Lalana (ed.), Conceptions and Misconcep‐ tions of Legislation (Springer 2019) 162. 11 Jeremy Waldron, ‘Representative Lawmaking’ (2009) 89 Boston University Law Review 335.

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In line with argument, this Chapter is aimed at assessing what antidotes representative democracy serving the purposes of better regulation may oppose to the crisis of confidence in legislation. After having discussed how better regulation can contribute to increase the confidence in legisla‐ tion framed as a crisis of democratic legitimacy (par. 2), the Chapter de‐ bates the strategic contribution that parliaments may offer to the proposed vision of better regulation. This argument is developed in three stages, re‐ spectively assessing why parliaments are strategic actors for fulfilling the proposed vision of better regulation (par. 3), how they engage in better regulation processes (par. 4) and in what manner they can contribute to raise the confidence and the substantive quality of legislation (par. 5). 2. Better regulation’s Contribution to Increase the Confidence in Legislation Better regulation may represent a powerful antidote against the crisis of confidence in legislation. Following the first programme launched in the mid 1990s, the better regulation discourse12 has become a permanent mis‐ sion of the OECD13 with the aim of tracing and supporting country efforts to improve regulatory quality vis-à-vis the overwhelming pace of techno‐ logical change and unprecedented interconnectedness of economies.14 Af‐ ter the turn of the millennium,15 it gained relevance in the institutional agenda of the European Union, where the Commission played a major role

12 Stephen Weatherhill, Better regulation (Hart Publishing 2007). On the relationship between the notions of ‘better legislation’ and ‘better regulation’, see Ulrich Karpen, ‘Introduction’ in Ulrich Karpen and Helen Xanthaki, Legislation in Euro‐ pe. A comprehensive Guide For Scholars and Practitioners ( Hart Publishing 2017) 3. On better regulation as a useful strategy to compensate for the democratic deficit of traditional law-making, see Patricia Popelier, ‘Governance and Better Regulation: Dealing with the Legitimacy Paradox’ (2011) 17 European Public Law 55. 13 OECD, ‘Recommendation of the Council on Improving the Quality of Govern‐ ment Regulation’, OECD/LEGAL/0278 (OECD publishing 2020). 14 OECD, OECD Regulatory Policy Outlook 2018 (OECD Publishing 2018). 15 See the Communication from the Commission on impact assessment, COM (2002) 276. In 2003, the first methods for assessing the impact of EU regulations were launched under the UK Presidency, see European Commission, Enterprise Direc‐ torate-General, ‘Business impact assessment pilot project. Final report - Lessons learned and the way forward’ (2002) 9 Enterprise Papers. Andrea Renda, Impact

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in proceduralising and operationalising better regulatory requirements into the EU legislative cycle16 and impact assessment slowly crept into the de‐ cision-making process as ‘a procedural device for making sure the tradeoffs that are made in the course of law-making processes were in line with the formal institutional processes’.17 In response to these supranational trends, in the last few decades better regulation has spread across national institutions also.18 Better regulation programs share three main features which make them strategically suited for facing legitimacy challenges. First, better regulation draws on a cyclic conception of law-making, which is believed not to be completed by the entry into force of the statu‐ tory act but continuing also in the law enforcement stage where premises for the inception of future legislative initiatives are also set.19 As a matter of fact, the legislative function is deemed to continue in the enforcement stage, insofar the task of monitoring how laws are implemented and what impact they produce is conceived as a due premise for the onset of new initiatives.20

16 17

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Assessment in the EU. The State of the Art and the Art of the State (Centre for European Policy Studies 2006). Anne Claartje Margreet Meuwese, Impact Assessment in EU Lawmaking (Kluwer Law International 2008) 51. Anne Claartje Margreet Meuwese and Stijn van Voorst, ‘Regulatory impact assess‐ ment in legal studies’ in Claire A. Dunlop and Claudio M. Radaelli (eds), Hand‐ book of Regulatory Impact Assessment (Edward Elgar 2016) 24. Davor Jančić, ‘The Juncker Commission's Better Regulation Agenda and Its Impact on National Parliaments’ in Cristina Fasone et al. (eds), Parliaments, Public Opinion and Par‐ liamentary Elections in Europe (2015) 18 EUI MW Working Paper 45. Ulrich Karpen, ‘Comparative Law: Perspectives of Legislation’ (2013) 17 Anuario Iberoamericano de Justicia Constitucional 168. Anne Claartje Margreet Meuwese and Patricia Popelier, ‘The Legal Implications of Better Regulation: An Introduc‐ tion’ (2011) 17 European Public Law 455. From a methodological point of view, on the ‘comprehensive approach to legisla‐ tion’ see Luzius Mader, ‘Evaluating the Effects: a Contribution to the Quality of Legislation’ (2001) 22 Statute Law Review 119 ff. Theoretically, this vision turns out to be consistent with the procedural rationality advocated by Niklas Luhmann, Legitimation durch Verfahren (6th edn Suhrkamp 2006). To fulfill this task, parliaments often resort to specific legislative techniques, such as the introduction of sunset, review or evaluation clauses. See Ulrich Karpen, ‘On the State of Legislation Studies in Europe’ (2005) 7 European Journal of Law Re‐ form 62.

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Second, the dynamics of better regulation is interinstitutional in nature. Since 1994, the Council, the European Commission and the European Par‐ liament have formally committed to better regulation standards through in‐ ter-institutional agreements or declarations,21 up to the Interinstitutional Agreement on Better Law-Making adopted on 13 April 2016.22 For all the institutional bodies involved in the legislative cycle to be formally com‐ mitted to better law-making processes is not an exclusive pre-requisite of the EU institutional architecture.23 Experiences at the national level of im‐ proving the quality of legislation have similarly been conducted through inter-institutional agreements between legislative bodies and executives.24 Third, better regulation is not just about ‘legisprudence’ (or ‘legis‐ tics’)25 as a theoretical and practical science dealing with law-production and aiming at improving the quality of norms focusing on the whole regu‐ lation cycle.26 Beyond the legal dimension, fostering quality regulation comprises first and foremost instances of impact assessment and ex post

21 See the Interinstitutional Agreement of 20 December 1994 on an Accelerated Working Method for Official Codification of Legislative Text (OJC 102, 4.4.1996, 2–3), the Interinstitutional Agreement of 22 December 1998 on Common Guide‐ lines for the Quality of Drafting Community Legislation (OJC 73, 17.3.1999, 1–4), the Interinstitutional Agreement of 28 November 2001 on a More Structured Use of the Recasting Technique for Legal Acts (OJC 77, 28.3.2002, 1–3), the Joint Declaration of 13 June 2007 on Practical Arrangements for the Co-Decision Pro‐ cedure (OJC 145, 30.6.2007, 5–9) and the Joint Political Declaration of 27 Octo‐ ber 2011 on Explanatory Documents (OJC 369, 17.12.2011, 15–15). 22 OJL 123, 12.5.2016, 1–14. The Agreement replaces a former agreement dating back to 16 December 2003. 23 The OECD Regulatory Policy Committee, ‘Recommendation of the Council on Regulatory Policy and Governance’ (OECD Publishing 2012) 22 clearly recognis‐ es that ‘Ensuring the quality of the regulatory structure is a dynamic and perma‐ nent role of governments and parliaments’. 24 In the UK, one of the political systems which has gained sound experience in exante appraisal, IA has been institutionalised in pre-legislative scrutiny by means of UK draft bills presented to Parliament. See Andrea Renda , ‘European Union and Better Law-Making: Best Practices and Gaps’ in The Best Practices in Legislative and Regulatory Processes in a Constitutional Perspective (workshop), Study for the AFCO Committee (European Parliament 2015) 26. 25 Peter Noll, Gesetzgebungslehre (Reinbeck 1973). 26 Ulrich Karpen, ‘Regulatory Impact Assessment: Current Situation and Prospects in the German Parliament’ (2015) 101 Amicus Curiae 20.

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evaluation (IA)27 whose purpose is evaluating which are the substantive aims at stake and what type of political solution they need. These fundamental features shed light on how better regulation can contribute to cope with the three challenges of the crisis of confidence in legislation as a crisis of democratic legitimacy. Broadly speaking, better regulation structures an inclusive process of policy-making and law-making based on the involvement of representa‐ tive institutions at both national and European level (throughput democra‐ cy) and on the constant interaction with citizens and stakeholders (input democracy) which, by aiming at improving the efficacy, effectiveness and efficiency of the regulatory answer, is deemed to contribute to higher stan‐ dards of output democracy. This vision confirms that, due to its interinstitutional nature, its reliance on a cyclic conception of law-making and its openness to impact assess‐ ment arguments, better regulation contributes to enhance public confi‐ dence in the law.28 In fact, this theoretical vision on the instrumental value of better regu‐ lation for improving the confidence in legislation must be confronted with two evidences that factually limit its inter-institutional nature. On the one hand, whereas legislation has long been perceived as the pivotal function of representative assemblies, law-making is increasingly being controlled by governments and the legislative room for manoeuvre

27 These mechanisms are referred to in this Chapter under the acronym ‘IA’. The difference between legal analysis and non-legal impact assessment is discussed in Patricia Popelier, ‘A legal perspective on Regulatory Impact Assessment’ (2017) Paper for the International Symposium on Regulatory Impact Analysis, Luxem‐ bourg – 23, 24 November 2017. 28 On the instrumental value of better regulation to enhancing the openness and the transparency of the decision-making process, contrasting its opaqueness and fos‐ tering higher democratic standards, see Charles de Marcilly and Matthias Touillon, ‘The “Better Regulation” programme: expertise over politics’ (2015) 370 Founda‐ tion Robert Schuman Policy Paper 1.

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left to parliaments is being reduced more and more,29 thus fostering a ‘creeping loss of parliamentary power’.30 On the other hand, better regulation is apparently subject to a sort of ‘executive dominance’, fostered by the presence of empirical constraints that stand against parliaments’ engagement in impact assessment.31 Notwithstanding these factual constraints, the following Sections will try to demonstrate that legislatures are essential players for fulfilling the proposed vision of better regulation. 3. Parliaments as Strategic Actors for Fulfilling the Proposed Vision of Better Regulation Pondering the role of parliaments in better regulation calls for a prelimi‐ nary consideration of the role played by the other institutions involved in the regulatory cycle. At present, better regulation tasks are tipically assumed by executive bodies. On the one hand, several factors foster the perception that execu‐ tives are the best suited institutions for fulfilling these tasks. Governments have privileged access to information on policy-making that turns out to be strategic for drafting quality legislation.32 Moreover, they have the re‐

29 Ulrich Karpen, ‘Comparative Law: Perspectives of Legislation’ (2003) 17 Anuario Iberoamericano de Justicia Constitucional 145. On the concern over the so-called ‘rubber-stamp legislation’, see Jean Blondel, Comparative Legislatures (Engle‐ wood Cliffs, NJ, Prentice-Hall 1973) 11; David Olson and Philippe Norton, ‘Leg‐ islatures in Democratic Transition’ (1996) 2 The Journal of Legislative Studies 1, 7; Sebastian M. Saiegh, ‘Lawmaking’ in Shane Martin, Thomas Saalfeld and Kaare W. Strøm (eds), The Oxford Handbook of Legislative Studies (Oxford Uni‐ versity Press 2014). 30 This trend is fostered by several factors, including the enlargement of public tasks that can only be managed by the executive and the reliance on delegated legal acts that outnumber statutory law. Ulrich Karpen, ‘Comparative law: perspectives of legislation’ cit. 145. 31 On this point, see below par. 3. 32 On the information asymmetry between the two branches and on the related ac‐ countability mechanisms, see Manuel Sánchez de Dios, ‘Parliamentary Account‐ ability in Europe: How do parliaments of France, Italy and Spain fight information asymmetries? (2008) Paper prepared for the Workshop ‘Comparing legislatures worldwide: roles, functions and performance in old and new democracies – ECPR Joint Sessions, Rennes, 11–16 April 2008.

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quired expertise for conducting ex ante and ex post impact assessment, thus fulfilling also the requirements of substantive quality drafting. From a constitutional perspective, governments’ involvement in IA usually find a legal base inter alia in their reporting duties to parliament. This obligation is implicit to the confidence relationship but usually finds a legal basis in the constitution, which may either regulate the informing duty33 or limit itself to recognise that government members, if required, must attend com‐ mittee or plenary sittings.34 On the other hand, the role of executive institutions in better regulation should not be overestimated. Any executive-centred approach to the de‐ velopment of better regulatory purposes would actually offer a biased per‐ spective on the factual institutional requirements and interests at stake. First, consideration for executive better regulation should always take into account that governments are politically oriented bodies that offer no ab‐ solute guarantee of the independence, scientifical reliance and objectivity of the proposed solutions. Second, data and information circulated by the executives in the better regulatory cycle may be partial and offer a limited perspective on the alternative policy solutions available and on the effect‐ ive costs or risks at stake. Third, from a theoretically perspective, the in‐ volvement of executive bodies in IA may fall in the paradox of the ‘con‐ trolled-controller’, insofar the working out of the regulatory assessment techniques is entrusted on the decision-maker, thus falling short of expect‐ ed independence standards.35 Executive dominance does not cover the entire institutional spectrum of better regulation. Better regulation requirements in the shape of ex ante or ex post IA may be conducted on departmental level and grounded on the ministerial organisation, which is often supported and complemented by external advisory bodies that play a significant role in scrutining the im‐

33 Art 190 Spanish Constitution. 34 Art 43 German Basic Law; Art 110 Spanish Constitution; and art 64 Italian Con‐ stitution. 35 This paradox may be relieved through the application of the OECD and EU best practices, which foster an inclusive approach to better regulation and challenge standard political cleavages between government and opposition in parliament. On this point, Claudio M. Radaelli, ‘The diffusion of regulatory impact analysis – Bets practice or lesson-drawing?’ (2004) 43 European Journal of Political Re‐ search 727.

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pacts of legislation.36 Moreover, IA can be done in independent authorities or agencies in their capacity as non-majoritarian institutions. The OECD has significantly contributed to the diffusion of regulatory impact assess‐ ment institutions among European countries and the EU.37 The contribution offered by independent authorities to the fulfilment of better regulation purposes through IA is a strategically relevant one.38 Partly because of their expertise and technical capacity, partly because of their reliability as data providers and policy analysts, independent institu‐ tions are on average best suited to serve better regulation requirements as a form of evidence-based policy making. However, independent authorities are not in a position to channel the outcomes of their regulatory assessment into the law-making cycle (inso‐ far statutory law production is considered). They may effectively support executive and legislative bodies in covering quality legislation standards in the ex ante and in the ex post stage, but in their instrumental capacity. Independent authorities have no direct control of the legislative produc‐ tion, therefore they are not able to provide an institutional follow-up to ev‐ idences gathered in their regulatory ex ante or ex post assessment. Compared to executives and independent bodies, a question arises re‐ garding the role that parliaments are expected to play in ensuring better regulation standards, including the working out of IA processes. The issue raises contrasting perspectives, depending on the approach. One is ground‐ ed on a normative approach; the other on an empirical one. Whereas in the

36 The network RegWatchEurope comprises independent external advisory bodies that play a significant role in scrutinising the impact of new legislation. To date, seven bodies are part of the network: the Advisory Bord on Regulatory Burden in the Netherlands; the Finnish Council of Regulatory Impact Analysis in Finland; the Nationaler Normenkontrollrat in Germany, the Norwegian Better Regulation Council in Norway; the Swedish Better Regulation Council in Sweden; the Regu‐ latory Impact Assessment Board in the Czech Republic; and the Regulatory Policy Committee in the United Kingdom. 37 Ulrich Karpen, ‘Regulatory Impact Assessment (RIA) by Independent Bodies’ (2018) 30 European Review of Public Law 4. 38 The reference is to the role of independent authorities as providers of impact as‐ sessment analysis instrumental to the purposes of better regulation. In parliamen‐ tary systems, these authorities are not part of the regulatory drift that in president‐ ial systems is determining the delegation of broad regulatory power from Congress to agencies. See Claire A. Dunlop and Claudio M. Radaelli, ‘The politics and eco‐ nomics of regulatory impact assessment’, in Claire A Dunlop and Claudio M Radaelli (eds), Handbook of Regulatory Impact Assessment, cit., 6.

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former parliaments are perceived as essential players of the better lawmaking cycle, problems arise when it comes to proceduralising and imple‐ menting their participation in IA processes. On the one hand, from a normative viewpoint, the participation of rep‐ resentative assemblies in IA is often perceived as an added value in that it fosters higher input and output legitimacy standards. This argument is par‐ ticularly developed in studies focusing on EU policy-making. Input legiti‐ macy arguments usually see the involvement of national parliaments as a way to secure increased democratic participation.39 The output legitimacy discourse highlights the positive outcomes of engagement by national par‐ liaments in IA, resulting in Member States complying with policy outputs and effectively implementing legal measures.40 In principle, parliamentary access to information on the consequences of legislation on social, econo‐ mic and environmental issues is seen as a prerequisite for effective demo‐ cratic accountability.41 On the other hand, three sets of reasons apparently stand against the proceduralisation of the engagement of representative assemblies in IA, but they actually find effective counter-arguments. First, from a legal viewpoint, it could be objected that parliaments are lacking a constitutional or equivalent legal base covering the evaluation of public policies or impact assessment as a core function. In fact, some na‐ tional constitutions acknowledge the evaluation of public policies as a for‐ mal task of Parliament, thus setting the premises for its proceduralisation and recognition as a ‘real’ function. Switzerland was the first country in

39 See Peter Lindseth, Power and Legitimacy. Reconciling Europe and the NationState (Oxford University Press 2010) and Stefano Micossi, ‘Democracy in the European Union’ (2008) 286 CEPS Working Document 7. 40 On the ‘legitimacy through subsidiarity’ argument, claiming that national parlia‐ ments can contribute to making EU policy-making fully compliant with input and output legitimacy standards, see Karolina Boronska-Hryniewiecka, ‘Legitimacy through Subsidiarity? The Parliamentary Control of EU Policy-making’ (2013) 1 Polish Political Science Review 84. 41 This point was raised in the so-called ‘Doorn Report’ on IAs (European Parlia‐ ment, ‘Report on Assessment of the Impact of Community Legislation and the Consultation Procedures’ (2004) 2003/2079(INI) 5) and it specifically refers to the position of the European Parliament. However, due to the composite nature of the EU constitutional architecture, a similar instance can be referred to the position of national parliaments.

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the world to introduce an evaluation provision at the constitutional level.42 Also, France43 and Sweden44 have their constitutional clauses. These are still isolated cases, often resulting from recent reforms. However, in the large majority of cases, post-legislative scrutiny and ex post evaluation are either based on sub-constitutional provisions - in most cases, legislative provisions or parliamentary rules of procedure - or they are rooted in the daily practice as part of the ‘unseen’ and informal work that is carried out in parliaments.45 Second, circumstantial evidence indicates that as a core instrument for better law-making IAs are structured to be implemented by governments, not by parliaments. A number of arguments relating to political, resource, organisation and time constraints faced by parliaments seem to demon‐ strate that representative assemblies may lack the political motivation, technical capacity, organisational arrangement and time availability to en‐ gage in exhaustive IA (especially in the ex-ante stage). In fact, the Euro‐ pean Parliament and some national parliaments hold specific experience in performing IAs and this activity is anchored in the internal administrative organisation.46

42 See art 170 of the Swiss Confederal Constitution of 18 April 1999 (calling the Federal Assembly to ensure that federal measures are evaluated with regard to their effectiveness), further implemented by arts 27 and 40 of the Swiss Parliament Act. 43 Art 24 of the French Constitution, amended in 2008, and further implemented by Loi no 96-517, 14 June 1996, by the Loi organique no 2001-692, 1 August 2001, on the lois de finances (so-called LOLF), and by the two Houses’ Rules of Proce‐ dure. 44 Chapter 4, art 8 of the Instrument of Government that entered into force on 1 Jan‐ uary 2011, which is further regulated by the Riksdag Act and by the Riksdag guidelines adopted in 2001 and 2006 (Riksdag, Forskning och framtid, uppföljning och utvärdering. Arbetsgruppen för genomförande av Riksdagskommitténs förslag, Stockholm, Riksdagstryckeriet, 2006). 45 Walter Bagehot, ‘The Non-Legislative Functions of Parliament’ (1860) in Norman St John-Stevas (ed), The Collected Works of Walter Bagehot, VI ( The Economist 1986) 41; and Walter Bagehot, ‘The Unseen Work of Parliament’ (1861) ivi 47 f. 46 Before the European Parliament started developing its own IA expertise, no exist‐ ing impact assessment system had been sufficiently tested in any national assem‐ bly. For a long time, parliaments lacked concrete reference models for engaging in IA processes. SeeA. Renda, ‘European Union and Better Law-Making’, cit., 14. In the last few years, however, some national parliaments started developing an IA capacity of their own. Among them, the Swiss Parliament, the UK Parliament, the Swedish Riksdag, the French Parliament and the Italian Senate. Further counterar‐

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Lastly, regarding impact concerns, it could be argued that to date the role of parliaments is seriously constrained both in law-making (where substantial decisions are taken by the government) and in overseeing the executive (insofar this function cannot produce a binding outcome).47 As a matter of fact, even if they structurally engaged in IA, parliaments would lack the capacity to fully control the final shape of the legislative texts, as these are usualluy drafted at the executive level. In fact, this argument underestimates the influence that, beyond formal powers, parliaments can exercise over the government, acting within the boundaries of the confidence relationship . The term influence is used in assorted meanings in contemporary comparative politics,48 but it usually describes ‘what power parliament exercises in practice within or despite its formal constraints’.49 It may refer to the factual control exercised by Parliament both in the legislative process (usually labelled as ‘legislative influence’,50 following Meyer’s conceptualisation)51 and in non-legislative procedures, including oversight.52

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guments are discussed in Elena Griglio, ‘Better Law-Making and the Integration of Impact Assessment in the Decision-Making Process: The Role of National Par‐ liaments’ in Alfredo De Feo and Brigid Laffan (eds), Scrutiny of EU Policies ( European University Institute 2017) 63. Christine Neuhold and Julie Smith, ‘Conclusion’ in Claudia Hefftler, Christine Neuhold, Olivier Rozenberg and Julie Smith (eds), The Palgrave Handbook of Na‐ tional Parliaments and the European Union (London, Palgrave Macmillan, 2015) 668 ff. For instance, Ulrich Sieberer, ‘The institutional power of Western European Par‐ liaments: a multidimensional analysis’ (2011) 34 West European Politics 731 de‐ velops parliamentary power as a multidimension concept comprising direct influ‐ ence on policy-making, ex ante selection of external officeholders, and ex post control of the Cabinet. For an overview of literature, see Olivier Rozenberg, ‘Comparer les parlements’ in Jean Michel de Waele and Yves Déloye (eds), Politique comparée (Bruylant 2018) 323. Andreas Maurer, ‘The legislative powers and impact of the European Parliament’ (2003) 41 Journal of Common Market Studies 227; Amie Kreppel, ‘Moving be‐ yond procedure. An empirical analysis of European Parliament legislative influ‐ ence’ (2002) 35 Comparative Political Studies 784. Katherine Meyer, ‘Legislative influence: toward theory development through ca‐ sual analysis’ (1980) 5 Legislative Studies Quarterly 563. Meghan Russell and Meg Benton, ‘Assessing the policy impact of Parliament: methodological challenges and possible future approaches’ (2009) Paper for PSA Legislative Studies Specialist Group Conference, 24 June 2009.

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Broadly speaking, the main arguments that apparently constrain parlia‐ ment’s concrete ability to intrude into better regulatory mechanisms and dwell into IA are curbed by corresponding counterarguments, thus proving that existing difficulties in structuring parliaments’ involvement in regula‐ tory assessment may be tackled effectively through proactive approaches. 4. Parliaments’ Engagement in Better Regulation Processes Once clarified that parliaments may effectively contribute to the working out of better regulatory mechanisms, up to the conduct of IA, which in their turn are seen as potential remedies against the crisis of confidence in legislation, the following step is about defining how concretely can parlia‐ ments deal with this task. In this vein, it should be stressed that better regulatory mechanisms, in‐ cluding IAs, are highly sophisticated and technically demanding processes that apparently clash against parliaments’ inner nature as political institu‐ tions. This assumption opens to two additional questions, one related to the type of function that parliaments exercise when they engage in IA; the other is instead dealing with the political significance that such processes may gain before MPs, given the technical support offered by parliamen‐ tary administrations and experts. The answer to these questions calls for a recognition of the main better regulation tools and practices developed at parliamentary level. Previous research53 focused on the post-legislative scrutiny stage of the better regu‐ lation process highlighted that parliaments tend to face this task following three main attitudes: a) passive scrutinisers; b) informal scrutinisers; and c) formal scrutinisers.54 The first approach – ‘passive scrutinisers’ – identifies the basic in‐ stance. Parliaments limit their role to the assessment of the scrutiny con‐ ducted by governmental bodies or independent authorities/agencies. Under this ‘passive’ attitude, parliaments do not directly engage in autonomous evaluations and IA, relying on ‘external’ reports and evaluations. Since most OECD countries lack a strong parliamentary tradition in respect of

53 Elena Griglio, ‘Post-Legislative Scrutiny as a Form of Executive Oversight. Tools and Practices in Europe’ (2019) 2 European Journal of Law Reform 118 ff. 54 Ibid.

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impact assessment,55 this approach may sound particularly attractive when IA is solidly anchored in independent regulatory bodies. The German Bundestag, reliant on the activity of the Federal Statistical Office and the National Regulatory Reform Council,56 is deemed to fall under the catego‐ ry of passive scrutinisers. The second approach – ‘informal scrutinisers’ – features those proac‐ tive parliaments that take the lead in the development of in-house evalua‐ tion capacities in order to overcome the outsourcing of IA to the govern‐ ment or to external agencies/experts. The first step requires establishing dedicated administrative parliamentary structures, such as research and evaluation units providing ex post analysis of legislative implementation and impact assessment.57 These units may enrich or complement the ‘tra‐ ditional’ administrative structures – such as research and documentation units – and enable the channeling of technical expertise beyond the tradi‐ tional legal-economic background of parliamentary officials.58 Parliaments falling within this category are considered ‘informal’ scru‐ tinisers insofar as the connection with formal parliamentary procedures is a-systematic. There is no provision of dedicated formal proceedings and tools able to provide a follow up on the ex post internal (administrative) analytical capacity and to address the government.59 Parliamentary bodies can nonetheless resort to these analytical resources in their standard scruti‐

55 Steve Jacob, Sandra Speer and Jan-Erik Furubo, ‘The institutionalization of evalu‐ ation matters: Updating the International Atlas of Evaluation 10 years later’ (2015) 21 Evaluation 6 ff. OECD, Better Regulation Practices across the European Union (OECD Publishing 2019). Irmgard Anglmayer, Better Regulation practices in national parliaments (European Parliamentary Research Service Study 2020). 56 Nevil Johnson, State & Government in the Federal Republic of Germany: Execu‐ tive at Work (2nd edn Pergamon Press 2016) 101; U. Karpen, ‘Regulatory Impact Assessment: Current Situation and Prospects’, cit., 17. 57 Eva-Maria Poptcheva, ‘Policy and legislative evaluation in the EU’ (European Parliament, Library of the European Parliament Briefing, 3 April 2013). 58 Sean Gailmard and John W. Patty, ‘Slackers and Zealots: Civil Service, Policy Discretion, and Bureaucratic Expertise’ (2007) 51 The American Journal of Politi‐ cal Science 873. Christine Neuhold and Sophie Vahoonacker, ‘Introduction’ in Christine Neuhold et al (eds), Civil Servants and Politics (Palgrave 2013). 59 Anna-Lena Högenauer, Christine Neuhold and Thomas Christiansen (eds), Parlia‐ mentary Administrations in the European Union (Palgrave 2016) 21.

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ny/oversight of the executive. The case of Italy is regarded as falling with‐ in this category.60 The third approach – ‘formal scrutinisers’ – sees parliaments addressing IA in a formal and highly institutionalised manner. The function is legally grounded, vested on parliamentary (political) bodies, supported by dedi‐ cated procedures and inclusive of both the legal and the impact assess‐ ment. This is the most inclusive approach as, beyond covering the purpos‐ es and activities of the first two categories, it opens to the development of an autonomous political evaluation capacity in parliament. The cases of Switzerland,61 Sweden, France and, with some differences, also the UK are considered to fall within this category. Notwithstanding these common inputs, not even formal scrutinisers are always able to grant due procedural outcomes resulting in a political fol‐ low-up. Only in some parliaments, procedimentalisation of these mechan‐ isms triggers formal discussion of the outcomes of IA and starts a dialogue with the government.62 The three proposed categories are not intended to be strict. Parliaments often change their approach and combine features belonging to different

60 Giovanni Piccirilli and Paolo Zuddas, ‘Assisting Italian MPs in Pre-Legislative Scrutiny: The Role Played by Chambers’ Counsellors and Legislative Advisors in Enhancing the Knowledge and Skills Development of Italian MPs: The Assistance Offered to an Autonomous Collection of Information’ (2012) 65 Parliamentary Affairs 672. Gloria Regonini, ‘Parlamenti analitici’ (2012) 1 Rivista Italiana di Politiche Pubbliche 45. 61 The Swiss Parliament offers the highest degree of IA procedimentalisation, see Elena Griglio and Nicola Lupo, ‘Parliaments in Europe Engaging in Post-legis‐ lative Scrutiny: Comparing the French, Italian and Swiss Experiences’ (2020) 4 Journal of Southeast Asian Human Rights 101 and I. Anglmayer, Better Regu‐ lation practices, cit., 50. 62 An institutional follow-up is provided in the Swedish Parliament, see Chapter 7 of the Riksdag Act and Anders Forsberg, ‘Contribution to the General Debate on “The work of parliamentary committees”’ (2008) Paper presented at the Meeting of the Association of Secretary Generals of Parliament, Cape Town, April 2008; and in the UK, for which the UK Parliament has been associated with an au‐ tonomous approach to post-legislative scrutiny, namely of independent scrutinisers (Franklin de Vrieze, Post-Legislative Scrutiny in Europe. How the oversight on the implementation of legislation by Parliaments in Europe is getting stronger (West‐ minster Foundation for Democracy 2019) 22. A follow-up is instead lacking in France, see Assemblée Nationale, ‘Fiche de synthèse n 52: Le contrôle de l’appli‐ cation des lois et l’évaluation de la législation et des politiques publiques’ (6 Juin 2017).

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formulas. The European Parliament is a relevant example of a hybrid model sharing elements of all the three categories. Beyond scrutinising some of the European Commission ex post evaluations and fitness checks,63 the EP has its own ex post IA mechanisms, centred on the work of the impact assessment service established in 2013 within the Direc‐ torate General for Parliamentary Research Service.64 Ex post evaluation in the European Parliament depends on the choice made by standing commit‐ tees that ‘select the files to be evaluated according to their political priori‐ ties’.65 The selection brings about both a political outcome (the drawing up by the EP competent standing committee of an ‘implementation re‐ port’, which is then voted in plenary) and an administrative evaluation ac‐ tivity (the publication of a factual evaluation study by the dedicated unit of the European Parliamentary Research Service).66 Notwithstanding its strong evaluation capacity, the procedural outcomes achieved so far are only occasionally able to exercise an influence on the policy cycle.67 Due to the institutional architecture of the EU,68 that makes the position of the European Parliament vis-a-vis the ‘executive power’

63 See the European Commission’s Communication on Smart Regulation in the Euro‐ pean Union, COM (2010) 543 and the definition of ‘fitness checks’ provided in the Better Regulation Guidelines SWD (2017) 350, 7. 64 Andrea Renda, ‘European Union and Better Law-Making: Best Practices and Gaps’ in Andrea Renda et al. (eds), Workshop on the Best Practices in Legislative and Regulatory Processes in a Constitutional Perspective, Study for the AFCO Committee (European Parliament 2015) 5. 65 Irmgard Anglmayer and Amandine Scherrer, ‘Ex-post evaluation in the European Parliament: an increasing influence on the policy cycle’ (2020) 3 Journal of Legis‐ lative Studies 405. 66 See Irmgard Anglmayer, Evaluation and Ex post Impact Assessment at EU Level (European Parliament Research Service Briefing Better Law Making in Action September 2016) 7. 67 Irmgard Anglmayer and Amandine Scherrer, ‘Ex-post evaluation in the European Parliament’, cit. 68 Paul Magnette, ‘Appointing and censuring the European Commission: the adapta‐ tion of parliamentary institutions to the Community context’ (2001) 7 European Law Journal 292, 307; Vivien Schmidt, ‘Federalism and State Governance in the European Union and the United States: An Institutional perspective’ in Kalypso Nicolaïdis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union ( Oxford University Press 2001) 339; Marco Goldoni, ‘Politicising EU Lawmaking? The Spitzenkandi‐ daten Experiment as a Cautionary Tale’ (2016) 22 European Law Journal 285.

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not comparable to the legislative–executive arrangement featuring domes‐ tic democracies, the oversight/accountability purposes are much weaker. This comparative overview confirms that existing factual constraints in performing advanced better regulation mechanisms69 may stem parlia‐ ment’s direct participation in the working out of IA: only occasionally and for selected policies or pieces of legislation can parliaments act as IA agents, developing their own regulatory analysis. Nonetheless, the second channel of the indirect participation to better regulation mechanisms, which sees parliaments acting as scrutinisers of the evaluations conducted by governmental or independent bodies, is always available to representa‐ tive assemblies and may effectively contribute to strengthening the demo‐ cratic legitimacy of IA process. 5. Better Regulation in Parliament: Legislation or Oversight? Parliaments’ indirect scrutiny of external IA turns out to be a key tool for increasing government’s responsiveness on quality legislation and con‐ tributing to more effective and efficient policy-making. Whereas also this option requires some analytical and technical capacity in parliament, it can be argued that legislatures may effectively offer an added value in fulfill‐ ing better regulation objectives by combining ‘administrative’ with ‘politi‐ cal’ strategies: the former strengthens the research and evaluation capacity of Parliament; the latter enhances Parliament’s influence on the govern‐ ment. Only by providing at the same time autonomous expertise and polit‐ ical procedimentalisation can parliaments provide a full contribution to better regulation purposes and processes with an appreciable external im‐ pact on the executive branch. Since parliaments’ participation in better regulation mechanisms is mostly developed indirectly, it should be questioned what type of function is actually supporting their engagement in IA and what type of outcome is expected. Two functions strongly rooted in the history of parliamentarism can provide an answer. The plainest approach would represent parliament’s involvement in bet‐ ter regulation and IA as an extension of the legislative function. The task of pre-scrutinising draft bills, monitoring how laws are implemented and

69 Irmgard Anglmayer, Better Regulation practices, cit., 7.

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what impact they produce is closely inherent to the law-making process, and specifically to the cyclic conception of law-making. In this vein, par‐ ticipation in direct or indirect, ex ante or ex post IA would offer parlia‐ ments the opportunity to contribute to improve the quality of the legis‐ lative production by making use of the power to initiate/amend legislative acts. In fact, in contemporary parliamentary systems, legislatures’ capacity to control the final outcomes of the legislative production is rather limited. The final shape of legislation is to large extent left on governments.70 A potentially more effective perspective on how to channel parlia‐ ments’ involvement in better regulation and IA is through the oversight function that legislative assemblies exercise with respect to the execu‐ tive.71 Oversight includes the activity performed by parliaments to control the action of another political body, enforce its statutory or general ac‐ countability, and adopt any necessary measures to restore infringed public interests.72 Participation in better regulation mechanisms framed within parliamen‐ tary oversight turns out to be a relational function. It specifically serves the ‘soft’ dimension of the oversight of the executives which does not act as a hierarchical means to hold the government accountable vis-à-vis the parliament,73 but rather supports parliament’s attempt to exercise an influ‐ ence over the government.74 As a domain instrumental to strengthening the informative prerogatives of parliament and supporting its communica‐

70 On what is defined as a situation of ‘executive dominance in law reform’, covering all the aspects of law-making, including the connection with citizens, see Natalina Nheu and Hugh McDonald, By the People, for the People? Community participa‐ tion in law reform (Law and Justice Foundation of New South Wales 2010) 104. 71 National Democratic Institute, ‘Strengthening Legislative Capacity in LegislativeExecutive Relations’ (2000) 6 Legislative Research Series Paper 24. 72 Andrea Manzella, Il Parlamento (Il Mulino 2003) 441. See also David Olson, ‘Legislatures and Administration in Oversight and Budgets: Constraints, Means, and Executives’ in Rick Stapenhurst, Riccardo Pelizzo, David Olson and Lisa von Trapp (eds), Legislative Oversight and Budgeting: A World Perspective (Washing‐ ton DC, World Bank, 2008) 324 ff and Inter-Parliamentary Union (IPU) and Unit‐ ed Nations Development Programme (UNDP), Global Parliamentary Report 2017. Parliament’s power to hold government to account: Realities and perspec‐ tives on oversight (Courand et Associés 2017) 13. 73 Nicolas Grandguillaume, Théorie générale du contrôle (Economica 1994). 74 The notion of parliamentary ‘influence’ (or ‘policy impact’) as opposed to formal powers vested in parliaments acknowledges a long-standing theoretical back‐ ground, see Bernard Crick, The Reform of Parliament, London (Weidenfeld and

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tive functions, the involvement in better regulation processes offers parlia‐ ments a non-binding power that nonetheless may result in strong political commitments. Contributing to better regulation goals and IA processes, parliaments may strengthen their right – which is implicit to the constitu‐ tional tradition of parliamentary systems75 – to seeking information, ex‐ planation and policy positions from government, thus reinforcing the con‐ nection between the two branches. This may result in a reinforced capacity of legislative assemblies to orient government’s legislative action by re‐ sorting to the indirizzo politico prerogative also.76 Whether this may con‐ stitute or not an autonomous function, the prerogative is in any case im‐ plicit in the confidence relationship and it may effectively result in the

Nicolson 1964). It describes ‘what power parliament exercises in practice within or despite its formal constraints’, M. Russell and M. Benton, ‘Assessing the policy impact of Parliament’, cit.. Different classifications and approaches have been ad‐ vanced on this issue; see Michael Mezey, Comparative legislatures (Duke Univer‐ sity Press 1979) and Philippe Norton, Parliaments in Western Europe (Frank Cass 1990). 75 It is correctly argued (Florian Meinel, ‘Confidence and Control in Parliamentary Government: Parliamentary Questioning, Executive Knowledge, and the Transfor‐ mation of Democratic Accountability’ (2018) 66 The American Journal of Com‐ parative Law 325) that ‘an explicit power of Parliament to demand or access ex‐ ecutive information and knowledge is not part of the textual tradition of Western constitutionalism’. However, the fact that legislative assemblies need information to fulfil their constitutional functions is ‘an old and common insight of constitu‐ tional theory’, Carol Harlow, ‘Freedom of Information and Transparency as Ad‐ ministrative and Constitutional Rights’ (1999) 2 Cambridge Yearbook of European Legal Studies 285. 76 The indirizzo politico notion, indicating the setting of the fundamental goals that the State as a public entity is expected to fulfil, has been developed by Italian scholars; see Vezio Crisafulli, ‘Per una teoria giuridica dell’indirizzo politico’ (1939) 1–2 Studi urbinati 53, Alfonso Tesauro, ‘Le funzioni fondamentali dello Stato’ (1957) 12 Rassegna di diritto pubblico 533, Temistocle Martines, ‘Indirizzo politico’ in Enciclopedia del diritto, XXI (Giuffrè 1971) 134. It has found its for‐ tune in Spain also; see Ignacio Fernández Sarasola, ‘Dirección política y función del gobierno en la Historia constitucional’ (2003) 4 Revista Electrónica de Histo‐ ria Constitucional para 62, Isabel M. Giménez Sánchez, ‘Indirizzo politico, direc‐ ción política, impulso político: el papel del Parlamento’ (2008) 18 Revista Jurídica de la Universidad de Madrid 83. However, it does not seem to find corresponding translations in the Westminster tradition or in Nordic countries; see Ulrike Liebert, ‘The Centrality of Parliament in the Consolidation of Democracy: A Theoretical Exploration’ (1989) 7 Political Science Institute Heidelberg – Working Paper 12.

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sharing of political directions on how to produce quality legislation from both a formal and a substantial perspective. 6. Conclusions. Strengthening the Confidence Dimension for Increasing the Confidence in Legislation Changing modes of law production affecting the role of parliaments as le‐ gitimate law-making authorities are among the factors that foster a pan‐ demic crisis of confidence in legislation. Existing gaps in the throughput, input and output set of democratic credentials affecting law-making cor‐ roborate the argument. Thwarting the confidence crisis therefore calls for substantive approaches addressing the core democratic legitimacy of lawmaking. Legislatures’ engagement in better regulation purposes and mechanisms is the solution addressed in the Chapter. On the one hand, better regulation is conceived of as a mechanism that contributes to cope with the major democracy legitimacy gaps that jeopardise law-making.77 On the other hand, different institutions are involved in better regulation, but the partic‐ ipation of representative assemblies offers additional gains consisting in the protection of the substantive values of transparency and pluralistic rep‐ resentation. Their engagement in better regulatory mechanisms democra‐ tises the overall law-making process, bringing it back to the normative idea of legislation as ‘the business of making or changing law explicitly, in an institution and through a process publicly dedicated to that task’.78 Par‐ liaments have a core responsibility in trying to restore citizens’ trust in legislation, because symbolically they embody the idea of a transparent, inclusive, accessible and visible decision-making process.79

77 Better regulation specifically contributes to the normative idea that striving for better fact-finding methods is one powerful solution to make policy-making be‐ come more rational, see Julius Cohen, ‘Towards realism in legisprudence’ (1950) 59 The Yale Law Journal 895. 78 This definition of the idea of legislation is opposed by Jeremy Waldron, ‘Repre‐ sentative Lawmaking’ cit. 339 to the idea of law-making as ‘any activity that has the effect of making or changing the laws’. 79 Cristina Leston Bandeira, ‘Parliaments’ Endless Pursuit of Trust: Re-focusing on Symbolic Representation’ (2012) 18 The Journal of Legislative Studies 514.

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This assumption leads to an apparent paradox: why should legislatures care about improving quality legislation and increase the confidence in law if they are increasingly marginalised in the legislative production? The answer lies in the alternative opportunity structures that they obtain from engaging in better regulation. Parliaments are often lacking the ca‐ pacity, information, expertise, time availability and interest to structurally engage in better regulation mechanisms, including IA which is the most demanding activity in terms of technical and procedural requirements. However, their involvement in better regulation processes turns out to be a strategical tool if approached in an indirect manner and framed in the leg‐ islature’s daily interaction with the government. Scrutinising the activity carried out by executive or independent bodies while contributing to better regulation tasks is a major opportunity for par‐ liaments. It strengthens their position in the law-making process, reinforc‐ ing their informative prerogatives and analytical capacity, making them better suited to scrutinise statutory bills and to orient the final shape of le‐ gislative solutions. This goal is better served by framing better regulation mechanisms in the oversight rather than in the legislative function. Oversight of the ex‐ ecutive is a pivotal vehicle through which legislatures may exercise their influence on the merit of the legislative choices: it is mostly by holding the government to account - both ex ante and ex post - for decisions taken in initiating, scrutinising and following-up pieces of legislation that parlia‐ ments can get substantive outcomes. This implies that the relationship between parliament and government – which in parliamentary systems turns around the confidence dimension – is a pivotal component of the overall discourse. The well-being of the con‐ fidence relationship between parliament and government is therefore a key factor for increasing the confidence in legislation via better regulation.

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Opening and Improving Policy Development to Increase Public Trust: Transparency of Evidence-based Regulation in the Debate on EU Better Regulation Agenda Egle Basyte Ferrari, Eckehard Rosenbaum, Giulia Listorti, Nicole Ostlaender

Summary: 1. Introduction – 2. Better regulation, transparency and trust – 3. Literature review on EU Better Regulation Agenda – 4. Discussion and concluding remarks 1. Introduction According to the results of Eurobarometer of the last 15 years, Europeans have trusted, on average, more the European Union (EU) than national governments and parliaments;1 even though, trust in the EU has been slightly lower than distrust (43% versus 47%), with considerable varia‐ tions across EU countries. Large variations of support towards European integration between and within countries are also documented in other studies.2 These studies likewise show that there is no single reason to which the differences can be attributed. At the time of writing, the coronavirus pandemic is causing major dis‐ ruptions in our societies, which affect the public perception of institu‐

1 In November 2019, the respective attitudes were 43% and 34%, see European Com‐ mission, ‘Standard Eurobarometer 92: First Results’ (December 2019) accessed 12 June 2020. 2 Anna Brosius, Erika J. van Elsas and Claes H. de Vreese, 'Trust in context: National heuristics and survey context effects on political trust in the European Union' (2020) 21 European Union Politics 294; Anna Ruelens and Ides Nicaise, 'Investi‐ gating a typology of trust orientations towards national and European institutions: A person-centered approach' (2020) 87 Social Science Research 102, 414.

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tions,3 as also other crisis did in the past.4 One of the major shifts is a more negative perception of the EU.5 At the same time, it should be noted that the public approval of governments and their leaders’ responses to the COVID-19 situation appears quite volatile as the current crisis evolves,6 thus longer term effects on perceptions are yet to be seen. All the more so as public institutions are currently the focus of citizens’ attention. As men‐ tioned in the introduction to this book, trust is essential for cooperative be‐ haviour; if institutions are not trusted, it is more difficult to get people to comply with the stringent rules needed to control the spread of the disease. The manifestations of the rather low level of trust reported above are as manifold as are its possible reasons. As Mounk7 suggests, expressions of low levels of trust include the rise of populist movements and politicians all across Europe, claiming as they do to speak on behalf of the (silent) majority; the low turnout in many elections or referenda; and scepticism if not outright hostility towards European institutions in general and policies in particular, which are blemished as overly bureaucratic if not an unnec‐ essary and cost-generating intrusion in peoples’ lives. The author also sin‐ gles out several possible reasons. First, there are deep-rooted prejudices,

3 accessed 13 May 2020; Eurofound, Living, working and COVID-19: First findings – April 2020 (2020) accessed 12 June 2020. 4 Yoo-Duk Kang and Chang-Rhyong Oh, 'Spreading Euroscepticism and its macrolevel determinants: empirical analysis of Eurobarometer survey in 2004–2017' (2020) Journal of Contemporary European Studies 1. 5 Eurofound, Living, working and COVID-19: First findings – April 2020; Demopo‐ lis Italy in time of Covid19, 14-15 April 2020 accessed 12 May 2020. The asymmetric effect of the change of the level of trust in national and EU level institutions is in line with the results of the study by Goran Dominioni, Alberto Quintavalla and Alessandro Romano, 'Trust spillovers among national and European institutions' (2020) 21 European Union Politics 276. 6 ; accessed 13 May 2020; DG Communication’s Public Opinion Monitoring Unit, Public Opinion Monitoring at a glance in the time of COVID-19 (9 June 2020) . Trust volatility is in line with the results of Edelman surveys from previous years . 7 Yascha Mounk, The People vs. Democracy: Why our freedom is in danger and how to save it (Harvard University Press 2018).

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often fuelled if not caused by misinformation, about the functioning of the EU and its competences. Second, the rise of social media in conjunction with the multiplication of sources of information of uncertain reliability leads to a loss of authority of traditional media at the benefit of informal and largely unregulated information channels.8 Third, the increasingly technocratic nature of legislation, which renders their content difficult to grasp while giving the impression that legislative proposals are “without alternatives” and thus beyond the purview of democratic choice, fuels doubts that elections make a difference. Also other scholars attempted to explain the motivations behind the negative sentiments towards the EU. One is the correlation between confi‐ dence in institutions at different levels, especially when the “negativity bias” is present,9 also confirmed by research that includes other interna‐ tional organizations.10 Other suggested factors are social trust,11 national media and parties.12 While some of these concerns are not new,13 they have gained momen‐ tum in recent years, prompting the European Commission (EC) to over‐ haul fundamentally the ways in which legislative proposals are being de‐ veloped and communicated. In broad terms, these initiatives can be sum‐ marized under the headings of better regulation (BR) and transparency, respectively. The underlying idea being that adhering to BR principles

8 Almost seven in ten Europeans say they often come across fake news, European Commission, ‘Flash Eurobarometer 464: Fake News and Disinformation Online’ (February 2018) accessed 12 June 2020. 9 Anna Brosius, Erika J van Elsas and Claes H de Vreese, 'Trust in context: National heuristics and survey context effects on political trust in the European Union' (2020) 21 European Union Politics 294. 10 Lisa Maria Dellmuth and Jonas Tallberg, 'Why national and international legitima‐ cy beliefs are linked: Social trust as an antecedent factor' (2020) 15 The Review of International Organizations 311. 11 Ivi. 12 Jan Eichhorn, Daniel Kenealy and Christine Hübner, 'Who wants a referendum on EU membership? Exploring public attitudes in six Member States' (2020) Journal of European Integration 1. 13 Concerns about the costs for businesses caused by regulation have led to the de‐ velopment for the so-called Standard Cost Model, Jacques Ellul, The technological society (Vintage Books 1964).

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while fostering transparency about policy processes and outcomes would contribute to strengthening peoples’ trust in EU institutions and policies.14 At its core, better regulation, as it is understood and pursued by the Commission, is a means to deliver tangible benefits for European citizens and address the common challenges Europe faces. Well-targeted, evidence-based and simply written regulation is more likely to be properly implemented and achieve its goals on the ground, whether these are economic, societal or environmental. Modern, proportionate rules that are fit for purpose are essential for the rule of law and upholding of our common values, but also for the efficiency of public administrations and businesses.15

Simultaneously, the better regulation agenda is about designing and evaluating EU policies and laws transparently, with evidence, and backed up by the views of citizens and stakeholders. It covers all policy areas and aims for targeted regulation that goes no further than required, in order to achieve objectives and bring benefits at minimum cost.16

Transparency can be defined in this context as “the extent external actors are afforded access to information about the way public organizations op‐ erate”17 with a view, inter alia, to improve their functioning and strength‐ en their legitimacy. BR and transparency are distinct governance principles, addressing spe‐ cific concerns and objectives, while nevertheless overlapping and support‐ ing each other. Whereas the main concern of BR is the efficiency and ef‐ fectiveness of legislation, transparency seeks to underpin the democratic legitimacy of legislation. Both intersect where legitimacy is not only

14 European Commission, COM(2019) 178 final Communication from the Commis‐ sion to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Better regulation: taking stock and sustaining our commitment (2019). 15 European Commission, COM(2016) 615 final Communication from the Commis‐ sion to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Better Regulation: Delivering better results for a stronger Union (2016). 16 accessed 9 September 2019. 17 Maria Cucciniello, Gregory A Porumbescu and Stephan Grimmelikhuijsen, '25 Years of Transparency Research: Evidence and Future Directions' (2017) 77 Pub‐ lic Administration Review 32, 36.

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couched in procedural terms, but is understood in the sense of legislation being grounded on good and convincing evidence. BR, by taking into account citizens’ views, opinions and knowledge, presupposes that citizens are well informed and thus able to form an opin‐ ion on the issues at hand. BR without a certain degree of transparency is therefore impossible. Transparency, on the other hand, presupposes (or re‐ quires) that regulation is simply written (or at least well explained) and hence understandable to non-specialists, or else citizens would not grasp what is to be legislated. Towards the end of the 2015-2019 EC mandate, the Secretariat-General of the European Commission carried out a stocktaking exercise18 concern‐ ing the Better Regulation Agenda (BR Agenda or Agenda) of the Commis‐ sion. The literature review19 and public consultation activities, which were conducted in this context, confirm a wide public interest in understanding what evidence underpins EU legislative proposals, implying also greater demands for transparency. Importantly, the stocktaking findings also sug‐ gest that transparency of underlying evidence and processes may be con‐ sidered a necessary condition to trust the quality of regulation. Indeed, there are reasons to argue that greater transparency about legislative pro‐ cesses and policy outcomes (government performance) are likely to strengthen trust in government. Accordingly, providing people with factu‐ al information about how government works and what it (successfully) does, thus providing them with knowledge, helps people to develop trust.20 The proposed relationship between transparency about the evidence used in political decision-making processes and trust in the rules created by these processes is particularly relevant in the COVID-19 crisis where

18 accessed 9 September 2019. 19 Giulia Listorti and others, The debate on the EU Better Regulation Agenda: a lit‐ erature review (Publications Office of the European Union 2019) . 20 Stephan Grimmelikhuijsen, 'Linking transparency, knowledge and citizen trust in government: an experiment' (2012) 78 International Review of Administrative Sci‐ ences 50.

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the associated scientific evidence21 and the strict rules resulting from this evidence, which affect a large part of the world’s population, are very much in the spotlight. The purpose of the present paper is to explore in detail the relationship between transparency, better regulation and trust (par. 2), to examine the state of play in the European Union against the background of the academ‐ ic and expert discussion of the matter as reported in the stocktaking exer‐ cise (par. 3), and to chart possible ways forward (par. 4). 2. Better regulation, transparency and trust Better regulation is a comparatively well-seasoned concept in EU policy making. Since the early 2000s, public concerns regarding the perceived negative effects of EU regulations have prompted the European Commis‐ sion to increasingly rely on BR principles,22 in line with a worldwide trend of governments to put in place policies that focus on enhancing the quality of laws and regulations.23 EU policies to improve regulation were also fostered by the objectives of the Lisbon strategy (2001) and Europe 2020 agenda (2010) to boost European competitiveness by basing it on a knowl‐ edge economy.24 The key concepts of EU regulatory policy currently rep‐

21 For example, according to 2020 Edelman Trust Barometer Special Report: Trust and the Coronavirus, 74% of respondents believe government and health authori‐ ties should be regularly sharing information with the public about the latest scien‐ tific findings. Furthermore, 85% believes there is a need to hear more from scien‐ tists and less from politicians. Indeed, scientists and health officials are among the most trusted sources of information (this is also confirmed by other surveys, see e.g. accessed 13 May 2020). 22 It must be noted that some scholars argue that the narrative of EU better regulation being so much focused on “reducing burdens” may be counterproductive. See Sacha Garben, 'An ‘Impact Assessment’ of EU Better Regulation' in Sacha Garben and Inge Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Bloomsbury Publishing 2018); Stijn Smismans, 'The Politicization of ex post Pol‐ icy Evaluation in the EU' (2017) 19 European Journal of Law Reform 74. 23 OECD, OECD Regulatory Policy Outlook 2018 (OECD Publishing 2018). 24 Alberto Alemanno, 'How Much Better is Better Regulation?' (2015) European Journal of Risk Regulation 344; Eva G. Heidbreder and Gijs Jan Brandsma, 'The EU Policy Process', The Palgrave Handbook of Public Administration and Man‐ agement in Europe (Palgrave Macmillan UK 2018); Evelina Agota Vitkute, 'EU

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resented by the Better Regulation Agenda were defined by the White Pa‐ per on European Governance25 and the report of the Mandelkern Group on Better Regulation26, both issued in 2001. The White Paper underlined the necessity to reform European governance in order to bring citizens closer to the European institutions. Five principles of good governance were pro‐ posed: openness, participation, accountability, effectiveness, and coher‐ ence. Both openness and participation were seen useful for improving con‐ fidence in institutions. The openness principle suggested active communi‐ cation of EU actions and decisions by the institutions, while participation had to be ensured “throughout the policy chain – from conception to im‐ plementation”.27 In 2002, the first guidelines for impact assessments (IA) were pub‐ lished. Their regular updates incorporated guidance on other elements of BR, namely ex-post evaluation and stakeholder consultation, which initial‐ ly were presented separately.28 In 2003 and 2016, the Inter-institutional Agreements on Better Law Making and in 2005, the Inter-institutional Common Approach to IA were signed to promote a united approach to ev‐ idence-based regulation. In 2006 an internal quality control body (Impact Assessment Board) and in 2012 the Regulatory Fitness and Performance programme (REFIT) were introduced. With the appointment of Juncker Commission (November 2014), BR has gained a top position on the institution’s political agenda.29 One of the priority areas of this Commission was in fact A Union of Democratic

25 26 27 28 29

Initiative of Better Regulation and Its Status in Lithuania' (2014) 8 European Inte‐ gration Studies 28. European Commission, European Governance - A White Paper COM(2001) 428 final (2001/C 287/01) (2001). Mandelkern Group on Better Regulation, Final Report (2001). Ibid 10. Elizabeth Golberg, ''Better Regulation': European Union Style' (2018) M-RCBG Associate Working Paper n. 98. Wim Voermans, 'Beating about the Bush in 'Better Regulation'' in Wim Voermans and Stefan Van den Bogaert (eds), Fit for the Future? Reflections from Leiden on the Functioning of the EU (Eleven International Publishing 2016); Stijn Smis‐ mans, 'The Politicization of ex post Policy Evaluation in the EU' cit. 74.

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Change30 where the Better Regulation Agenda,31 adopted on May 19, 2015, played a prominent role. Major novelties included enriched guide‐ lines and a completely new toolbox; an extended impact assessment sys‐ tem;32 an independent regulatory scrutiny body;33 enhanced public consul‐ tation and feedback mechanisms, covering the entire policy cycle;34 strengthened stakeholder engagement via two new platforms;35 and a strengthened inter-institutional agreement.36 More recently, the new EC President Ursula von der Leyen reaffirms in her Political Guidelines37 the commitment to better law making principles

30 European Commission, COM(2014) 910 final Communication from the Commis‐ sion to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Commission Work Programme 2015: A New Start. The von der Leyen Commission has a similar priority is called “a new push for European democracy”, European Commission, COM(2020) 37 fi‐ nal Communication from the Commission to the European Parliament, the Coun‐ cil, the European Economic and Social Committee and the Committee of the Re‐ gions on Commission Work Programme 2020: A Union that strives for more. 31 European Commission, COM(2015) 215 final Communication from the Commis‐ sion to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Better regulation for better re‐ sults - An EU agenda (2015). 32 Impact assessments should also be carried out for non-legislative acts (implement‐ ing and delegated acts) and significant initiatives (e.g., recommendations for the negotiations of international agreements). 33 The body was renamed in Regulatory Scrutiny Board, has a modified composition (half of the members consists of independent experts) and a broadened mandate (scrutinizes evaluations, in addition to IAs). 34 i) Agenda setting: feedback on green and white papers; ii) policy formulation: feedback on inception IAs and roadmaps, and consultation on draft IAs; iii) deci‐ sion-making: feedback on the IAs of legislative proposals; iv) policy implementa‐ tion: feedback on delegated and implementing acts; v) policy evaluation: consulta‐ tion on evaluations and fitness checks of existing laws. 35 REFIT and Lighten the Load – Have Your Say , both accessed 2 March 2020. 36 Council of the European Union and European Commission European Parliament, Interinstitutional Agreement of 13 April 2016 on Better Law-Making, OJ L 123/1 (2016). 37 Ursula Von Der Leyen, A Union that strives for more. My agenda for Europe. Po‐ litical Guidelines for the Next European Commission 2019-2024 (2019) accessed 9 September 2019.

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and is also determined to promote transparency in the EC’s working practices. To this issue we will turn now. The notion of transparency and its associated adjective transparent are of rather recent vintage, all the more so as they have come to adopt a spe‐ cific, and to some extent also novel, meaning in the context of political governance and decision making. Rather than designating or characteriz‐ ing an object or a material through which one can see, transparency has become synonymous for clearly visible processes and for accountable pol‐ icy makers and decisions, which are hence entrusted with legitimacy.38 There are two trends, which have contributed to giving greater impetus to transparency, and which go beyond legitimacy and accountability. The first is the propensity across different jurisdictions and different levels of government to embrace and implement principles of BR in law making. For example, the BR Agenda in the EU sets out to ensure inter alia that decision-making is open and transparent and that EU actions are based on evidence and understanding of the impacts (where the latter would not make sense if the evidence were to be kept hidden away from citizens) while keeping to a minimum the regulatory burdens on businesses, citi‐ zens or public administrations. Therefore, legal legitimacy is increasingly seen in conjunction with factual legitimacy: a policy proposal must not on‐ ly stand on stable legal grounds, but must also be based on sufficient fac‐ tual evidence, which is accessible to the public. But this, in turn, is at the heart of the EU BR Agenda. In addition, BR posits that citizens and stakeholders can contribute with information and knowledge throughout the policy and law-making pro‐ cess. Seen from this perspective, BR and the idea of open government – the second trend – as a process through which external knowledge is inte‐ grated into political decision-making39 are closely intertwined. It should not come as a surprise therefore that transparency together with participa‐ tion and collaboration forms one of the pillars of open government.40 Af‐ ter all, participation cannot take place in a vacuum but presupposes that citizens have at least a basic understanding of the issues involved.

38 Carolyn Ball, 'What Is Transparency?' (2009) 11 Public Integrity 293. 39 Dennis Hilgers, 'Open Government: Theoretische Bezüge und konzeptionelle Grundlagen einer neuen Entwicklung in Staat und öffentlichen Verwaltungen' (2012) 82 Zeitschrift für Betriebswirtschaft 631. 40 Daniel Lathrop and Laurel Ruma, Open government: collaboration, transparency, and participation in practice (first ed., O'Reilly 2010).

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The shifting understanding of transparency is being mirrored by an ex‐ pansion of its purpose from a means to fight corruption to formal (legally required) transparency and to finally, useful transparency.41 The first one is achieved by disclosing information on the use of public funds while for‐ mal transparency is related to the disclosure of certain government docu‐ ments and useful transparency means the disclosure of information in which citizens are interested and which they can use for various purposes, including new business models with respect to the economic exploitation of data.42 Seen from this perspective, however, transparency complements not on‐ ly the involvement of citizens in political decisions via elections so as to allow citizens to base their decisions on information about past govern‐ ment action and performance, it also plays an important role in enabling citizens to become involved in policy formulation. In fact, once citizens are sought to participate actively in policy making, the breadth and depth of the knowledge and information they require to do so effectively in‐ crease significantly.43 And similar if not even more far-reaching consider‐ ations apply to the collaboration between the public administration and various groups of actors and entities (citizens, users, customers, experts, firm, external actors) with a view to tap into their knowledge and expertise in order to find (better) solutions to societal problems. This mirrors trends in the private sector where enterprises are increasingly engaged in prob‐ lem definition and thus become facilitators and enablers of problem solu‐ tion platforms rather than being solution providers themselves.44 In the EU context, the EC’s inception impact assessments go already in this direc‐ tion. Notably, the approach implies that the potential collaborators must already be informed when even the problem to be solved may not yet be clearly defined and thus much earlier than traditionally is the case. More‐ over, the kind of information to be provided would differ content-wise from what is usually provided in terms of government documents and 41 Maria Cucciniello and Greta Nasi, 'Transparency for Trust in Government: How Effective is Formal Transparency?' (2014) 37 International Journal of Public Ad‐ ministration 911. 42 The latter usually comes under the heading “open data”. 43 Deirdre Curtin and Paivi Leino, 'In Search of Transparency for EU Law-Making Trilogues on the Cust of Dawn' (2017) 54 Common Market Law Review 1673. 44 Dennis Hilgers, 'Open Government: Theoretische Bezüge und konzeptionelle Grundlagen einer neuen Entwicklung in Staat und öffentlichen Verwaltungen' (2012) 82 Journal of Business Economics 631.

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communication, being in a way much more open-minded and open-ended, acknowledging uncertainty while posing questions rather than claiming solutions. The operationalization of transparency in the EU currently manifests it‐ self by making publicly available information on the functioning of the in‐ stitutions in the following ways: the communication (intended as provid‐ ing documentary evidence) of decision-making processes; the codification of the related procedures to ensure their stability, objectivity and clarity; the openness to dialogue and stakeholder participation; and the fight against corruption by giving access to information on financial matters.45 The integration of the principle of transparency in European primary law began in the 1990s, although anticipated in earlier jurisprudence by the Court of Justice of the European Union as right of access to documents flowing from the procedural right to be heard.46 An important step was the inclusion of the concept of openness in the Treaty on European Union47 and the annexed Declaration on the Right of Access to Information, ap‐ proved by the heads of state or government of the European Community in Maastricht on 15 December 1991. However, the concepts of openness and transparency48 gained traction especially in the 2000s. The Treaty of Amsterdam introduced a provision (Article 255, currently corresponding to Article 15 TFEU) that established the right of access to documents of the institutions, bodies, offices and agencies of the Union by its citizens and natural or legal persons residing in any Member State. The reference to this right by the EU Charter of Fundamental Rights (Article 42), which was incorporated into European constitutional law in 2007, upgraded the freedom of information to a fundamental right,49 meaning that any limita‐ tions to this right must comply with Article 52 of the Charter.50

45 Hélène Michel, 'La transparence dans l’Union européenne : réalisation de la bonne gouvernance et redéfinition de la démocratie' (2018) 165 Revue française d'admin‐ istration publique 109. 46 Alberto Alemanno, 'Unpacking the Principle of Openness in EU Law Transparen‐ cy, Participation and Democracy' (2014) 39 European Law Review 72. 47 Article A(2): “decisions are taken as closely as possible to the citizen”. 48 See Alberto Alemanno, 'Unpacking the Principle of Openness in EU Law Trans‐ parency, Participation and Democracy' (2014) 37 European Law Journal 72, for the discussion on the lack of clear distinction between these two terms. 49 Ibid. 50 Article 52(1) states: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of

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Access to documents of EU institutions was also developed through secondary legislation and other policy documents and has resulted in be‐ coming “the most developed legal dimension of openness”.51 Regulation 1049/2001 adopted to implement Article 255 of the Amsterdam Treaty de‐ fined the principles, conditions and limits related to the right of public ac‐ cess to documents (defined as any content independent of its format or carrier) produced or received by the European institutions. While general‐ ly the access should be “the widest possible” (Article 1), even wider ac‐ cess to documents is recommended “in cases where the institutions are acting in their legislative capacity” (recital 6). This means that for certain types of content, namely legislative documents and documents related to policy development, this right is provided proactively in the sense that the concerned content “should be made directly accessible” in printed or elec‐ tronic form (Article 12). Other types of content can be obtained upon re‐ quest. However, Article 4 also allows denials of access in some specific areas (such as defence and military areas, financial, monetary or economic policy, personal data, commercial interests, court proceedings, audits, etc.) and the so-called space to think exception for the documents related “to a matter where the decision has not been taken by the institution, […] if dis‐ closure of the document would seriously undermine the institution’s deci‐ sion-making process, unless there is an overriding public interest in disclo‐ sure”. The Commission later went further by adopting in 2006 a Decisionon the re-use of its information,52 replaced by another Decision in 2011,53 al‐ lowing re-use of its documents for non-commercial and commercial pur‐ poses. Its scope includes both published and unpublished documents, such as studies, reports and other data. To effectively implement reuse policy, in 2012, the EU Open Data Portal54 was set up where datasets not only from

51 52 53 54

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those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. Alberto Alemanno, 'Unpacking the Principle of Openness in EU Law Transparen‐ cy, Participation and Democracy' (2014) 37 European Law Journal 72. European Commission, Commission Decision of 7 April 2006 on the re-use of Commission information (2006/291/EC,Euratom) (2006). European Commission, Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU) (2011). accessed 2 March 2020.

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the Commission but also from other EU institutions and agencies are made available for reuse. Developments in the case-law of the Court of Justice of the European Union also mark important steps towards widening the access to informa‐ tion on the decision-making processes.55 In addition, the European Om‐ budsman has an important role in strengthening transparency across EU institutions,56 through both reactive work (complaint handling57) and ac‐ tive work (own-initiative inquiries, communication and awareness-rais‐ ing).58 In doing so, the Ombudsman relies extensively on the case-law of the Court and promotes the proactive release of documents by the EU in‐ stitutions. Last but not least, transparent and evidence-informed policy formula‐ tion is being enhanced in the Commission through initiatives such as • a new approach to data, information and knowledge management59 launched in 2016 to modernise the way the Commission works by “im‐ proving the way in which data, information and knowledge are gath‐ ered, managed, shared and preserved”,60 as well as through increasing collaboration in the Commission; • the European Commission Digital Strategy,61 issued in 2018 to enable data-driven and evidence-based policy-making by upgrading digital so‐ lutions and infrastructure;

55 See e.g. ClientEarth supported by Republic of Finland and Kingdom of Sweden v European Commission C-57/16P (CJEU); Carl Schlyter v European Commission T-402/12 (CJEU); Saint-Gobain Glass France and Others v Commission T-56/09 (CJEU). 56 The Ombudsmen even called himself “the guardian of transparency” in the 2008 Annual Report. 57 A consistent part of all complaints the Ombudsmen receives concern refusal to disclose information. For example, in the years 2016-2018, the percentage of the related inquires closed is between around 20 to 30% accessed 2 March 2020. 58 Nikos Vogiatzis, The European Ombudsman and Good Administration in the European Union (Palgrave Macmillan UK 2018). 59 European Commission, C(2016) 6626 final Communication to the Commission on Data, Information and Knowledge Management at the European Commission (2016). 60 Ibid 3. 61 European Commission, C(2018) 7118 Communication to the Commission, Euro‐ pean Commission Digital Strategy: A digitally transformed, user-focused and da‐ ta-driven Commission (2018). It was prepared following the encouragement the

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•

an open data policy,62 including findable, accessible, interoperable and re-usable (FAIR) principles in data management, as applied to the re‐ search data generated63 by the EC Joint Research Centre (JRC).64

How exactly does BR and transparency relate to trust, or the formation thereof? The argument, already briefly alluded to above, can be put into concrete terms as follows. To begin with, note that trust is often viewed in terms of the perceived trustworthiness of another, where trustworthiness is said to be characterized by three dimensions, namely competence, benevo‐ lence and honesty.65 Competence “refers to whether people perceive a government organization to be capable, effective, skilful or professional in making decisions”.66 Benevolence focuses on the intentions behind gov‐ ernment action, i.e. “whether people think that a government organization genuinely cares about citizens’ interests”,67 whereas honesty “implies that

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EC received during the Tallinn Digital Summit in 2017, where EU and EFTA lead‐ ers called on the Commission “to become more active in the area of open govern‐ ment at global level” (Ministerial Declaration on E-Government — Tallinn Decla‐ ration accessed 9 September 2019, 6. Digital transfor‐ mation is seen as functional to “strengthen the trust in governments that is neces‐ sary for policies to have effect: by increasing the transparency, responsiveness, re‐ liability, and integrity of public governance” 2. While the main objective of open data policies is the commercial exploitation of data, transparency is often a side effect. The most recent data policy package is‐ sued by the Commission witnesses a new, integrated understanding of data and in‐ formation by covering public sector information (PSI), scientific information, and private data altogether (see European Commission, COM(2018) 232 final Commu‐ nication from the Commission to the European Parliament, the Council, the Euro‐ pean Economic and Social Committee and the Committee of the Regions: Towards a Common European Data Space (2018)). This policy also applies to data produced by other entities on JRC behalf or ‘re‐ ceived by the JRC or acquired against payment’ (Joint Research Centre (European Commission), JRC Data Policy (Publications Office of the European Union 2019) 7. JRC is in charge of supporting EU policy development by providing scientific evi‐ dence throughout the policy cycle. Stephan Grimmelikhuijsen, 'Linking transparency, knowledge and citizen trust in government: an experiment' (2012) 78 International Review of Administrative Sci‐ ences 50. Ibid 54. Ibid.

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the government organization is perceived to keep commitments and tell the truth”.68 Assuming then that people form expectations about the trustworthiness of a government based on the knowledge they have accumulated, the point of transparency is, then, that it is likely to increase peoples’ knowledge about the performance of an organisation, and thereby helps to provide the reasons to consider a government to be trustworthy. While there are some doubts about the extent to which people form rational expectations (and are not driven also by emotions), there seems to be some empirical support for the suggested link between transparency and trust.69 The European Commission in its regulatory framework based on trans‐ parency, accountability and evidence use in decision-making assumes in‐ deed that the combination of these three elements may contribute to “build trust in the Union’s institutions”.70 In the next section, we present the re‐ sults from the literature review on the BR Agenda related to transparency in order to illustrate how the link among these concepts is reflected in the debate occurring in the research community. 3. Literature review on EU Better Regulation Agenda Method BR stocktaking has sought to obtain an overall assessment of how the Agenda has been implemented throughout this Commission’s mandate. The exercise was informed by public comments on the stocktaking roadmap, public consultation, interviews, workshops, and a literature re‐ view. The latter was to systematically explore and identify the views char‐

68 Ibid. 69 Vincent Mabillard, 'Les effets de la transparence sur la confiance des citoyens-Cla‐ rification conceptuelle et étude de cas au niveau local' (thèse de doctorat, Univer‐ sité de Lausanne 2019) accessed 2 March 2020; Martin Alessandro and others, Transparency and Trust in Government: Evidence from a Survey Experiment (Inter-American Development Bank 2019). 70 European Commission, COM(2019) 178 final Communication from the Commis‐ sion to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Better regulation: taking stock and sustaining our commitment 1.

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acterizing the debate. For the purpose of the review, peer-reviewed and grey literature71 published from January 2015 to September 2018 and ad‐ dressing the Agenda was considered.72 The inclusion criteria were formu‐ lated based on the aim of our study, namely getting an overview of the de‐ bate on the changes introduced by the last regulatory policy reform in the EU. In a limited number of cases, the views on some pre-existing issues considered still relevant for the current situation have also been included. In this paper, we present and discuss only the findings related to trans‐ parency.73 In order to obtain a more accurate picture of the debate surrounding the BR Agenda, we also considered, in addition to academic literature, studies and reports issued by think thanks, international organizations (namely OECD), and EU internal scrutinizing bodies (European Parliament74 and European Court of Auditors). This also explains why we decided to con‐ sider grey literature in addition to peer-reviewed articles and academic books. Generally, publications from the EC have not been taken into ac‐ count since the EC is part of the system this literature aims to assess. Ex‐ ceptions were two reports75 prepared by the Regulatory Scrutiny Board (RSB) and the Joint Research Centre (JRC). Interest groups were not tak‐ en into account for the literature review because they took part in other BR stocktaking activities. Throughout the text, and in accordance with the BR Agenda, we use the term impact assessment to refer to ex-ante regulatory impact assessment

71 The literature list contains peer-reviewed articles, book chapters, and grey litera‐ ture such as workshop proceedings, reports, working papers, dissertations, and notes. The total number of publications included in the literature review is 76. 72 The latter date was set according to the timetable of the stocktaking exercise. 73 For the full coverage of topics and details on search terms, eligibility and inclusion criteria as well as for the list of publications included in the review see the study report: Giulia Listorti and others, The debate on the EU Better Regulation Agenda: a literature review cit., 2019. 74 Namely the contributions of European Parliament Research Service (EPRS). 75 Regulatory Scrutiny Board, ‘Annual Report 2017’, Brussels, European Commis‐ sion, 2018, (last accessed 9 September 2019); RSB, SG and JRC Working Group, 'Quantification in Commission Impact Assessments and Evaluations', Report, Brussels, European Commission, 2018, (last accessed 9 September 2019).

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and evaluation for an ex post assessment.76 To improve the readability of the paper, we have decided to follow the Agenda terminology and thus, if needed, we have substituted the terms used in the various papers with the Commission ones. Findings Overall, the literature reviewed welcomes the contribution made to trans‐ parency by various elements of the Agenda. However, at the same time authors also note existing challenges and issues, and make suggestions on what could be further improved. More specifically, efforts to enhance public participation to policy mak‐ ing are regarded as a way to make the EU more transparent and account‐ able.77 This concerns, for example, the extension of consultation to fitness checks of existing EU legislation and the possibility to provide feedback on legislative proposals once they are published, as well as a new web portal to track legislative initiatives. Transparency is extensively debated in relation to evaluations and IAs. Evaluations The authors acknowledge an improved accessibility to information on evaluations. Smismans78 considers that the EC‘s attention to transparency is underpinned by the importance the Agenda attaches to evaluation as a

76 Note that the choice made by the EC is itself addressed in the debate. See, for ex‐ ample, Stijn Smismans, ‘Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal’ (2015) 6 European Journal of Risk Regulation 6. 77 Davor Jancic, ‘The Juncker Commission’s Better Regulation Agenda and Its Im‐ pact on National Parliaments’, in Cristina Fasone, Diane Fromage and Zoe Lefkofridi (eds), Parliaments, Public Opinion and Parliamentary Elections in Eu‐ rope, European University Institute working papers (MWP 2015/18, Max Weber Programme 2015) 48; Fabian Willermain and Anca Cioriciu, ‘The Better Regu‐ lation Package: Creating Better Regulations, but for What Kind of EU Politics?’ (2015) 39 European Policy Brief, EGMONT Royal Institute for International Rela‐ tions 3. 78 Stijn Smismans, ‘Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal’ cit. 12.

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means of informing policymaking. He also regards evaluation as a key tool of evidence-based policymaking to tackle populist discourses by falsi‐ fying claims occurring in the latter, especially thanks to a more participa‐ tory approach.79 However, the author also sees the risk that evaluation may become an instrument of populism: EU promotes evaluation as a strategy to reduce regulatory burden and in this way strengthens the argu‐ ment of populist movements about unnecessary EU actions. For this rea‐ son, Smismans stresses that a participatory approach to evaluation should also include opening the objectives of evaluation to democratic debate. Another outcome of strengthened communication and transparency on evaluations should be policy learning involving an increasing number of actors, both internal and external.80 The European Parliamentary Research Service (EPRS)81 – making very concrete remarks and recommendations on the basis of its role as oversight of EC IAs and evaluations – considers evaluation roadmaps an informative source of planned and ongoing evalu‐ ations and fitness checks, and welcomes the publication of the “Overview of Commission’s Completed Evaluations and Studies” in 2016.82 The EPRS also notes that the Interinstitutional Database of EU Studies83 has the potential to become a valuable and centralised source of information.84 At the same time, however, other authors find that transparency and access to evaluation results are still limited.85 Two main issues are mentioned. Firstly, it is complicated to obtain a full picture of all ongoing and com‐

79 Stijn Smismans, 'The Politicization of ex post Policy Evaluation in the EU' cit. 96. 80 Stijn Smismans, ‘Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal’ cit. 12. 81 EPRS, 'Evaluation in the European Commission. Rolling Check-List and State of Play', 2017, p. 13, (last accessed 9 September 2019). 82 Available at https://ec.europa.eu/info/sites/info/files/finalised_studies_and_evaluat ions_2016.pdf (last accessed 12 June 2020). 83 This Database is a repository of planned, ongoing and published studies of the EU institutions, including those carried out by external providers. 84 The creation of a central database of evaluation files on the EC’s evaluation web‐ site is an important improvement, but it is not updated anymore (EPRS, 'Evalua‐ tion in the European Commission. Rolling Check-List and State of Play' cit.; Stijn Smismans, ‘Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal’ cit.). 85 Ellen Mastenbroek, Stijn van Voorst and Anne Meuwese, ‘Closing the Regulatory Cycle? A Meta Evaluation of Ex-Post Legislative Evaluations by the European Commission’ (2016) 23 Journal of European Public Policy 1329; Giesela Ruhl,

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pleted evaluations, and of the respective links to the related legislation. In fact, no central register exists,86 the amount of information available dif‐ fers amongst the various DG websites,87 and it is not clear whether the “Overview of Commission’s Completed Evaluations and Studies” is to be considered as the main reference source.88 Secondly, access to original studies can also be difficult because of outdated links.89 For all these reasons, the EPRS90 recommends setting up a comprehen‐ sive publicly available evaluation repository, including underlying exter‐ nal studies, which can also be used to indicate changes with respect to the original roadmap. In addition, it is suggested annexing directly to the Commission staff working documents the original studies together with the underlying data to ensure transparency and objectivity. Impact assessments The debate on transparency in impact assessments focuses both on their content and on their use in support to EU policymaking.

86

87 88 89 90

‘(Ex Post) Evaluation of Legislative Actions in the European Union: The Example of Private International Law’ (2017) Netherlands Journal of Private International Law 433; Martin Weber, Nicholas Edwards and Stephan Huber, ‘EU Review Clauses in Need of Review? An Analysis of Review Clauses in EU Legislation in the Context of Better Lawmaking’ (2017) 8 European Journal of Risk Regulation 121. Ellen Mastenbroek, Stijn van Voorst and Anne Meuwese, ‘Closing the Regulatory Cycle? A Meta Evaluation of Ex-Post Legislative Evaluations by the European Commission’ cit., 7; Martin Weber, Nicholas Edwards and Stephan Huber, ‘EU Review Clauses in Need of Review? An Analysis of Review Clauses in EU Legis‐ lation in the Context of Better Lawmaking’ cit., 124; Stijn Smismans, ‘Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal’ cit., 13. EPRS, 'Evaluation in the European Commission. Rolling Check-List and State of Play' cit. 15; Stijn Smismans, ‘Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal’ cit.13. EPRS, 'Evaluation in the European Commission. Rolling Check-List and State of Play' cit. 6. Ibid. Ibid., p. 7.

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As regards the content, the Impact Assessment Institute91 reports vary‐ ing degrees of transparency on input and output data, calculation models, as well as on the degree to which key data and findings were presented. Lack of transparency in IAs is considered a contradiction between the Commission’s aims to include stakeholders in policy development, and the need to explain the choices leading to the formulation of provisions in the proposals. Similarly, Hines92 points at missing transparency in selecting evidence, since the BR Guidelines do not force authors to disclose the re‐ lated methodology. However, Meuwese93 notes that the BR Toolbox re‐ quires an annex to the IA to explain which evidence has been used. Therefore, authors call for more transparency on data, assumptions and methodologies94 and recommend publishing and explaining all evidence used for policy development, including databases, models and algorithms to provide a level playing field and facilitate a public debate.95 Adequate editorial measures are also important to improve communication: “reports could be made more accessible by using commonly accepted terminology, the use of infographics and a correct use of references”.96 Impact Assess‐ ment Institute97 in fact highlights that IAs are often long and complex doc‐ uments, split in several files, which makes it more difficult to access rele‐ vant information. Furthermore, it is noted that the complexity of IAs might prevent their use for judicial review.98 91 Impact Assessment Institute, ‘Final Study. A Year and a Half of the Better Regu‐ lation Agenda: What Happened ?’, Final Study, 30 January 2017, (last accessed 9 September 2019). 92 Philip Hines, ‘Enlightening EU Policy-Making: Evolving Scientific Advice’ (2016) Policy Brief, European Policy Centre (last accessed 9 September 2019). 93 Anne C.M. Meuwese, ‘Regulatory Review of European Commission Impact As‐ sessments’ (2017) 19 European Journal of Law Reform 21. 94 RegWatchEurope cited in Elizabeth Golberg, 'Better Regulation': European Union Style cit. 44; Impact Assessment Institute, ‘Final Study. A Year and a Half of the Better Regulation Agenda: What Happened ?’ cit. 2. 95 Impact Assessment Institute, ‘Final Study. A Year and a Half of the Better Regu‐ lation Agenda: What Happened ?’ cit. 4, 19. 96 Regulatory Scrutiny Board, ‘Annual Report 2017’ cit. and JRC Working Group, 'Quantification in Commission Impact Assessments and Evaluations' cit. 5. 97 Impact Assessment Institute, ‘Final Study. A Year and a Half of the Better Regu‐ lation Agenda: What Happened ?’ cit. 98 Julian Nowag and Xavier Groussot, ‘From Better Regulation to Better Adjudica‐ tion? Impact Assessment and the Court of Justice’s Review’, in Sacha Garben and

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When discussing the use of impact assessments, authors express con‐ cerns about the risk of hiding political preferences behind evidence-based policy-making, for example, by giving a more prominent treatment to evi‐ dence supporting the initially preferred option.99 Delogu100 sees the risk that IAs may become a source of abuse and inefficiency when used as a political control tool. The Impact Assessment Institute101 indeed recom‐ mends that in all cases all relevant policy options included in the legis‐ lative proposals be analysed. The OECD102 welcomes significant changes introduced by the BR Agenda, but also suggests to further improve transparency by sharing IAs on draft subordinate legislation and in this way providing an opportunity to the public to comment on the analysis during the consultation stage. Some authors note that the internal nature of the draft IA report makes it difficult to determine its actual influence on the proposal.103 Others question the lack of transparency in those cases where impact assessments are not conducted.104 The absence of IAs, especially when no explanation is provided, is viewed as a as weakness of the implementation of the BR Agenda since it contradicts the requirement stated in the guidelines to as‐

Inge Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Bloomsbury Publishing 2018) 192. 99 Mariolina Eliantonio and Aneta Spendzharova, ‘The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics’ (2017) 19 Euro‐ pean Journal of Law Reform 5; Kai Wegrich, ‘Which Results? Better Regulation and Institutional Politics’, European Journal of Risk Regulation (2015) 6 370. 100 Bernardo Delogu, ‘Risk Regulatory Policy and Risk Governance, in Risk Analy‐ sis and Governance in EU Policy Making and Regulation. An Introductory Guide (Switzerland, Springer International Publishing 2016) 229. 101 Impact Assessment Institute, ‘Final Study. A Year and a Half of the Better Regu‐ lation Agenda: What Happened ?’ cit. 5. 102 OECD, OECD Regulatory Policy Outlook 2018 cit. 184. 103 Jonathan B. Wiener and Alberto Alemanno, ‘Comparing Regulatory Oversight Bodies: The US Office of Information and Regulatory Affairs and the EU Regu‐ latory Scrutiny Board’, in Susan Rose-Ackerman, Peter L. Lindseth and Blake Emerson (eds), Comparative Administrative Law (2nd edn, Edward Elgar Pub‐ lishing 2017) 344; Claudio M. Radaelli, ‘Halfway Through the Better Regulation Strategy of the Juncker Commission: What Does the Evidence Say?’ (2018) 56 JCMS: Journal of Common Market Studies 88. It must be noted that Wiener and Alemanno give examples for this statement that are prior to the launch of the BR in 2015. 104 Eric Van den Abeele, ‘“Better Regulation”: A Bureaucratic Simplification with a Political Agenda’ (2015) 4 Etui Working Paper 47.

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sess all proposals with significant effects, while at the same time it is de‐ clared to focus only on the big things.105 Another element discussed in the debate is the introduction of the Regulatory Scrutiny Board (RSB), and this too is found to contribute to transparency.106 However, some authors criticize the fact that RSB opin‐ ions are released to the general public only when the EC has adopted the corresponding legislative proposal.107 According to the reviewed literature, also the Interinstitutional Agree‐ ment on Better Law-Making contributes to the quality and transparency of the legislative cycle.108 In concrete terms, EPRS109 notes that the Agree‐ ment has improved access for European Parliament experts to materials concerning the preparation of delegated acts and led to the setting up of the joint register of delegated act.110 At the same time, however, negotia‐ tions on the sharing of information concerning international agreements have not yet been concluded. Moreover, a better flow of information from the Council is needed, as well as more transparency from Member States about ‘gold-plating’ when transposing EU legislation. Last but no least,

105 Impact Assessment Institute, ‘Final Study. A Year and a Half of the Better Regu‐ lation Agenda: What Happened ?’ cit. 34-36. 106 Ragnar Lofstedt and Anne Katrin Schlag, ‘Looking Back and Going Forward: What Should the New European Commission Do in Order to Promote EvidenceBased Policy-Making?’ (2017) 11 Journal of Risk Research 1364; Claudio M. Radaelli, ‘Halfway Through the Better Regulation Strategy of the Juncker Com‐ mission: What Does the Evidence Say?’ cit. 88. 107 Jonathan B. Wiener and Alberto Alemanno, ‘Comparing Regulatory Oversight Bodies: The US Office of Information and Regulatory Affairs and the EU Regu‐ latory Scrutiny Board’ cit. 344. 108 Jędrzej Maśnicki, ‘Good Governance Thorough Better Regulation. Looking for the Impact Analysis Approach to the Proportionality Principle’, in Robert Grzeszczak (ed), Challenges of Good Governance in the European Union (Nomos 2016) 208; Alfredo De Feo, ‘Better Regulation: Scrutiny of EU Pol‐ icies’, in Alfredo De Feo and Brigid Laffan (eds), Scrutiny of EU Policies (Euro‐ pean University Institute, Robert Schuman Centre for Advanced Studies 2017) 5; Alberto Alemanno, ‘Better Regulation: Holding Martin Selmayr Accountable’ (2018) LAW-2018-1303 HEC Paris Research Paper 3, . 109 EPRS, ‘Implementation of the Interinstitutional Agreement on Better Law-Mak‐ ing’, 2018, (last accessed 9 September 2019). 110 Available at https://webgate.ec.europa.eu/regdel/#/home (last accessed 9 Septem‐ ber 2019).

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EPRS calls for further efforts regarding the implementation of the Agree‐ ment, for example, by setting up a joint database on the state of play of legislative acts. Finally, several authors also comment on the transparency and BR Agenda as a whole. Moving to science-based transparency requires not only to share but also to explain.111 Alemanno112 notes that the lack of ho‐ mogeneity of various components of the Agenda can constitute a limit for its understanding and thus inclusiveness. Radaelli and Schrefler113 propose that EU institutions and MSs commit to providing information throughout the policy cycle, namely with respect to the different actors and how they are accountable for the results, as well as how these results will be mea‐ sured and discussed. A similar idea is expressed by Willermain and Ciori‐ ciu114 who underline the importance for citizens of understanding the le‐ gislative flow and being familiar with those making decisions that affect their lives. They also call for a spillover of transparency into the areas where it is not yet the norm. In particular, EU transparency should not be defined by sporadic litigations on access to documents, thus there should be a more automatic system of response to such requests. Furthermore, Willermain and Cioriciu suggest that the Transparency Register should be made mandatory and implemented in all EU institutions. Summing up, transparency appears as an important element throughout the whole policy cycle in the debate on the BR Agenda. However, most comments are made with respect to whether evidence underpinning policy proposals is transparently documented. Authors underline, on the one hand, how more clarity on evidence and findings can make impact assess‐ ments and evaluations more accessible to the interested public. This is needed to ensure that the primary goals remains to support policy-making and not just to meet procedural requirements.115 On the other hand, au‐ thors insist on better access to the underlying evidence to enable peer re‐

111 Ragnar Lofstedt and Anne Katrin Schlag, ‘Looking Back and Going Forward: What Should the New European Commission Do in Order to Promote EvidenceBased Policy-Making?’ cit. 112 Alberto Alemanno, 'How Much Better is Better Regulation?' cit. 355. 113 Claudio M. Radaelli and Lorna S. Schrefler, ‘Contribution to the Better Regu‐ lation Debate’ (2015) 6 European Journal of Risk Regulation 358. 114 Fabian Willermain and Anca Cioriciu, ‘The Better Regulation Package: Creating Better Regulations, but for What Kind of EU Politics?’ cit. 3. 115 Elizabeth Golberg, 'Better Regulation': European Union Style cit. 70.

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viewing, which in turn is necessary to assess the quality of the evidence base of policy proposals.116 4. Discussion and concluding remarks The EU Better Regulation Agenda – through its specific procedures, re‐ quirements and guidance – offers a concrete possibility to increase trans‐ parency of evidence and processes underpinning policy formulation. In this way, it contributes to (re)building trust in EU regulation. In fact, the BR stocktaking highlighted that “[c]ivil society, social partners and the business and research communities consider that the absence of an impact assessment undermines transparency and credibility”.117 Furthermore, the debate on the transparency in the Agenda is dominated by the discussion on access to and presentation of evidence underlying impact assessments and evaluations. This confirms a vivid interest in the role of evidence in informing policy proposals, including the possibility to understand and reuse scientific evidence. Many commentators of the BR Agenda praise this regulatory policy framework for its more ambitious scope to ensure that evidence informs all stages of policy cycle and is transparently shared with interested actors. However, findings also indicate shortcomings, often related to implemen‐ tation issues. More specifically, although the guidelines and the toolbox of the Agenda offer a detailed description of the steps and principles to be followed, impact assessments and evaluations appear to present varying degrees of transparency with respect to data, assumptions and methods and their role in the analysis. This concerns both the presentation and the preservation of evidence. Various ongoing EC initiatives are trying to address some of these con‐ cerns. In this way, they contribute to a cultural change both across the Commission and in other EU institutions. Concrete efforts to make scien‐ tific information underpinning policy proposals more accessible at differ‐ ent expertise levels (up to the general public) include:

116 Philip Hines, ‘Enlightening EU Policy-Making: Evolving Scientific Advice’ cit. 3. 117 European Commission, ‘Taking Stock of the Commission’s Better Regulation Agenda’, 15 April 2019, SWD(2019) 156 Final, 20.

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- MIDAS, the Modelling Inventory and Knowledge Management Sys‐ tem of the European Commission,118 contains descriptions of models in use by the EC, which directly or indirectly support the policy cycle. MI‐ DAS also captures information about how these models were used in IAs. The latter might be done also by referring to a study that describes the modelling exercise used by the IA. MIDAS is used by the entire EC and since 2017 is also integrated in the workflow for IAs, since the BR Tool‐ box requests that any model used in IAs has to be described in MIDAS. This makes MIDAS an important corporate tool to use, reuse and docu‐ ment models in a proper way, leading to the propagation of sound method‐ ology underpinning the BR Agenda and potentially to significant efficien‐ cy gains. From 2019 onwards parts of the system are open to the European Parliamentary Research Service under the umbrella of the Interinstitution‐ al Agreement on Better Law-Making, to support the EPRS during their evaluation of IAs prepared by the EC.119 - DataM120 provides access to the data underlying the scientific produc‐ tion of the European Commission and partners about the economics as‐ pects of agriculture, bioeconomy, climate change, food and nutrition secu‐ rity and related sustainability. Through the use of the web and of interac‐ tive data visualisations it enhances communication of scientific results in support of the policy cycle. Data access is in line with the JRC’s open data principles.121 An example in the area of policy formulation is the access to the study “Scenar 2030 - Pathways for the European Agriculture and Food Sector Beyond 2020”,122 which supported the inception impact assessment accompanying the proposal for a Communication on modernising and

118 Nicole Ostlaender et al., Modelling Inventory and Knowledge Management Sys‐ tem of the European Commission (MIDAS) (Publications Office of the European Union 2019) . 119 This interinstitutional version of MIDAS was launched on the 7th February 2019 during the ‘Science Meets Parliament’ event. The implementation of a version of MIDAS accessible to the general public is currently under discussion. 120 DataM is accessible at https://datam.jrc.ec.europa.eu/ (last accessed 9 September 2019). 121 Joint Research Centre (European Commission), JRC Data Policy cit. 122 Robert M’Barek et al., ‘Scenar 2030. Pathways for the European Agriculture and Food Sector beyond 2020’ (Publications Office of the European Union 2017) .

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simplifying the common agricultural policy.123 DataM also allows sharing and interactive analysis between JRC and EC policy officers of provision‐ al model results, such as with DG AGRI on the impact assessment of poli‐ cy options for the CAP reform. As Dawes suggest, “[t]he idea that democratic governments should be open, accessible, and transparent to the governed is receiving renewed em‐ phasis”,124 however the concrete realization of this idea is a complex issue that involves many changes. In order to be able to adequately approach a dialogue with the public, governments need new governance systems, ca‐ pabilities and processes.125 To effectively address the concerns that emerge from the BR stocktaking with respect to the transparency of evi‐ dence that informs policy making, a broad understanding of the enabling conditions is needed, which must take into account the specific nature of the EU compared to traditional governments. A couple of considerations can be made. First, when consulted for the BR stocktaking, policy officers pointed to significant time constraints when preparing impact assessments as well as to insufficient “learning from the experience built up within the institu‐ tion”.126 At the same time, externalising impact assessments is undesirable because of the responsibility carried by policy teams for the objectivity of the analysis underlying proposed policy options.127 In addition, externali‐ sation would further impede internal learning. As a solution, staff itself suggested greater mobilisation of internal expertise, sharing of best prac‐ tice and promotion of a common understanding of BR. It must be added that, in order to be effective, any internal support structure should be built by incorporating the perspective of the staff upon whom depend the exe‐ cution of impact assessments and evaluation processes. Ultimately, the success of BR implementation is directly related not only to skills, but also to motivations and ownership of the aims.

123 SWD(2018) 301 final. 124 Sharon S. Dawes, 'Stewardship and Usefulness: Policy Principles for Informa‐ tion-Based Transparency' (2010) 27 Government Information Quarterly 377. 125 Michael C. Jackson, Systems Thinking: Creative Holism for Managers (Wiley 2003); Marijn Janssen, Yannis Charalabidis and Anneke Zuiderwijk, ‘Benefits, Adoption Barriers and Myths of Open Data and Open Government’ (2012) 29 Information Systems Management 258-268. 126 European Commission, ‘Taking Stock of the Commission’s Better Regulation Agenda’ cit. 22. 127 Ivi.

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Second, if a regulatory policy reform has among its objectives increas‐ ing trust, any changes aimed at improving this policy instruments and pro‐ cedures focused on transparency and public engagement should be de‐ veloped in an integrated way. In the context of the BR Agenda, this means combining efforts to improve the communication and preservation of the evidence base in impact assessments and evaluations with efforts to strengthen consultation mechanisms that enable early feedback which can in turn inform further policy proposal development. This need is further confirmed by the responses to public consultations on the BR Agenda: public consultation and transparency of the policymaking process were identified as the areas where most progress has been made since 2014 and where most progress is still necessary. To conclude, for over a decade, the European Commission has been continuously working to improve its regulatory framework and certainly more efforts are needed to ensure transparent, participated and trusted pol‐ icy development. Nevertheless, the wide acknowledgement of the achieve‐ ments of the BR Agenda indicates that things are moving in the right di‐ rection. Even more so in the context of the current pandemic which consti‐ tutes a stress test to public institutions across the world and in which sci‐ entific evidence plays a prominent role in informing decision makers. Now, probably more than ever, transparency and BR tools may be among the best allies governments have to regain confidence of their citizens.

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Confidence or Diffidence in Law-Making? The Evolution of the “Normative Role” of the Italian Government Nicola Lupo

Summary: 1. Introduction: Parliament and Confidence in Legislation be‐ tween Tradition and Change - 2. The Italian Parliamentary Form of Gov‐ ernment - 3.The “Normative Role” of the Government - 4. Delegated Leg‐ islation in Two Steps: Delegation Laws and Legislative Decrees - 5. Ur‐ gency Legislation and its Abuses: Decree-Laws and Conversion Laws - 6. The Powers of the Government in the Legislative Process: the Question of Confidence on Maxi-Amendments - 7. The Case-Law of the Constitution‐ al Court: Trying the Avoid the More Evident Flaws in Law-Making - 8. Constant Trends and Pitfalls in Italian Law-Making and the Success of Populist Movements - 9. Conclusion. Which Legislative Role for Parlia‐ ments? 1. Introduction: Parliament and Confidence in Legislation between Tradition and Change When it is necessary to assess the level of confidence and trust in public institutions, Parliaments are usually deemed to be crucial actors. As direct‐ ly elected collegial bodies, representing the main political and party pos‐ itions within the public sphere, Parliaments are supposed to be the primary institutional transmission and transformation channel of the demands de‐ riving from a pluralistic and complex society. At the same time, Parlia‐ ments are also seen as Legislatures and the principal responsibility for leg‐ islation is generally attributed to them: this is obviously the case with re‐ spect to the new legislation approved by that Parliament, but also with re‐ gard to existing legislation, given the always-available possibility of amending it. Both these traditional assumptions, despite constituting founding ele‐ ments of the architecture of liberal States, which endure in the contempo‐

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rary narrative and institutional symbology, seem to have in fact become questionable during the first few decades of the XXI century. On the one hand, confidence and trust in politics no longer tend to de‐ rive from parliaments, nor from the political parties that are represented therein, but mainly from political leaders: their images and their personal skills and behaviours are at the very centre of the public sphere.1 Impor‐ tantly, it is through the political leaders that a personal relationship with the voters is established.2 This personal relationship is of course mostly fictitious, but is often very effective, especially thanks to the intensive use of social media by the political leader and his/her staff, sometimes result‐ ing in their policies heading in more populistic directions. It suffices to re‐ mark that many current political leaders, in Italy and elsewhere, were not even elected in Parliament and, in any event, no longer use the floor of Parliament as their principal public arena. On the other hand, especially in parliamentary forms of government – in which the Government is linked by a confidence relationship to the Par‐ liament, or at least to one House thereof – legislation is often initiated and drafted, both formally and substantially, not by the Parliament, but by the Executive; or in any event under the Executive’s direct or more indirect influence. This is not an entirely new feature, of course, as the Govern‐ ment has always played a relevant “normative role” in the drafting of leg‐ islation.3 However, surely it alters the picture when the Parliament, acting under a sort of “blackmail” or duress exerted by the Government on its majority via procedural mechanisms, such as the French vote bloquè or the Italian question of confidence on maxi-amendments, does not have the op‐ portunity to vote – in order to approve, reject or amend – every single arti‐ cle and, potentially, every single word of the new legislation. In other

1 Among many, see Mauro Calise, ‘The personal party: an analytical framework’ (2015) Italian Political Science Review/Rivista Italiana di Scienza Politica 45, 3, 301–315. 2 Pierre Rosanvallon, Le siècle du populisme. Histoire, théorie, critique (Seuil 2020) espec. II.3 (on “people-Un”). 3 See Enzo Cheli, ‘L’ampliamento dei poteri normativi dell’esecutivo nei principali ordinamenti occidentali’ (1959) Rivista Trimestrale di Diritto Pubblico, 463 ff. and Alessandro Pizzorusso, ‘L’ampliamento dei poteri normativi dell'esecutivo nei prin‐ cipali ordinamenti occidentali: a cinquant’anni dal saggio di Enzo Cheli’, in Paolo Caretti and Maria Cristina Grisolia (eds), Lo Stato costituzionale: la dimensione nazionale e la prospettiva internazionale. Scritti in onore di Enzo Cheli (Il Mulino 2010) 105.

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terms, whenever a piece of legislation originates from procedural mechan‐ isms that require the MPs to adopt a kind of “take-it-or-leave-it” approach, it hardly makes sense to attribute to the Parliament, and to the members who approved it, the responsibility for the content of that particular piece of legislation. Therefore, when analysing the responsibility of Parliaments in deter‐ mining the level of confidence in legislation, it is necessary to address a more fundamental doubt. It is unclear whether, in the new political context of the XXI century, it is necessary to abandon some of the founding ele‐ ments characterizing the liberal State, which are still deemed to govern the institutional framework, and instead to search for others, which are more consistent with the new dynamics; or, on the contrary, whether it is the po‐ litical reality that is moving in the “wrong” direction and therefore legal remedies should be activated in order to re-gain the traditional role of Par‐ liaments as law-makers, viewing them as a necessary instrument to once again raise citizens' level of confidence in institutions and legislation. This latter trend may, for instance, provide helpful context in relation to several recent decisions issued by either the Constitutional Courts or Supreme Courts aimed at defending the traditional legislative role of Parliaments.4 Of course, this chapter does not aim, by itself, to answer such a difficult and complex research question, which would require both a solid theoreti‐ cal elaboration and a broad comparative empirical analysis. Some ele‐ ments may be drawn from other chapters published within this volume, es‐ pecially within its third section. This chapter simply seeks to subject some limited elements to a comparative analysis by examining the institutional practice in Italy. This is, after all, a country in which trust in parliamentary institutions has reached particularly low levels and which has recently seen the repeated success of populistic and anti-politics movements.5

4 See for some further examples, Yaniv Roznai, ‘Constitutional Paternalism: The Is‐ raeli Supreme Court as Guardian of the Knesset’ (2019) IACL-AIDC Blog https://b log-iacl-aidc.org/2019-posts/2019/5/17/constitutional-paternalism-the-israeli-supre me-court-as-guardian-of-the-knesset (accessed 11th August 2020) and Nicola Lupo, ‘Parliament’, in Roger Masterman and Robert Schütze (eds), The Cambridge Com‐ panion to Comparative Constitutional Law (CUP 2019) 358. 5 According to some data (collected in 2017) one in four respondents (24.4 percent) declared a level of trust of 0 (on a scale of 0-10) in the Italian Parliament and the average score is 3.4/10 (ISTAT, Il benessere equo e sostenibile in Italia (Istat, Roma 2018) espec. 88 ff.). For some reasons why Italy is characterized by low and de‐ creasing level of trust in democratic institutions see Italiadecide, Rapporto 2020.

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After an overview of the Italian parliamentary form of government (par. 2), the analysis will focus, in particular, on the “normative role” exercised by the Italian Government in adopting new legislation (par. 3): either di‐ rectly, through governmental decrees having the same force of law (legis‐ lative decrees and decree-laws) (par. 4 and 5, respectively); or indirectly, using governmental powers within the parliamentary legislative process, especially through the question of confidence on “maxi-amendments” (par. 6). This normative role has progressively expanded over the last three decades, and in doing so has disregarded the constitutional provisions ded‐ icated to governmental decrees and to the law-making process. That is why specific attention will then be devoted to the case-law of the Constitutional Court, in order to understand the remedies activated by the Italian legal order and to verify whether the Court has been able to “protect” the Parliament and its role. The Court, following a first phase during which it did not oppose several abuses of both decree-laws and maxi-amendments, has significantly tightened its judicial review, and, over the course of the last 25 years, has managed to limit some of the most relevant deviations from the Constitution. This has of course occurred with some hesitations, and without definitively putting an end, at least for the moment, to practices that seem to menace some of the fundamental el‐ ements of the liberal State (par. 7). Overall, the Italian case demonstrates the challenges and difficulties in‐ volved in maintaining some of the traditional founding principles of the liberal State regarding the law-making function and the role of the Parlia‐ ment. The success and endurance of these practices over the last three decades have strengthened the role of the Executive in the legislative ac‐ tivity and have simultaneously weakened the role of the Parliament as the main legislative actor. Such a trend is, of itself, not necessarily unusual for many parliamentary democracies within Europe, and is also encouraged by the dynamics of the European integration. The fact is that, in Italy, the Executive's increased role has, however, not improved the quality of the legislation produced. On the contrary, it has resulted in legislation which

Un rapporto di fiducia. Le relazioni tra pubblico e privato dalla diffidenza alla col‐ laborazione (Il Mulino 2020), espec. 22 ff. For a comparative analysis regarding the level of trust in Parliament see Sören Holmberg, Staffan Lindberg and Richard Svensson, 'Trust in Parliament' (2017) Journal of Public Affairs 1647 ff. (placing Italy in 12th position among 15 “established democracies”). On populists’ success in Italy see infra, the last two paragraphs.

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has become more and more precarious and unstable, and more dependent on emotions and political slogans than on empirical analyses. In this way, both the legislation and the Parliament have become very vulnerable to populist movements and trends, which were already present during Berlusconi’s Governments and which have been very successful during the last two elections (2013 and 2018). In other terms, the institu‐ tional system not only offered no effective counter-balance to the spread‐ ing processes of personalization of politics and “anti-politics”, but also contributed to further reducing the public levels of confidence in legisla‐ tion and trust in parliamentary institutions (par. 8). In its conclusions (par. 9), this chapter returns to the original research question, arguing that legis‐ lation enacted by the Government or approved by Parliament in this way no longer appears capable of representing a suitable balance between soci‐ ety and state, between plurality and unity, or between majority and opposi‐ tion. 2. The Italian Parliamentary Form of Government The Italian Republican Constitution establishes a parliamentary form of government with a limited series of “rationalisation” mechanisms. Since its commencement, the Constituent Assembly (1946-48) has very clearly opted in favour of a form of government that is neither presidential nor di‐ rectorial, but a rationalised parliamentary one: that is, a form of govern‐ ment that requires a permanent relationship of confidence between the Parliament and the Government, but where the relationship between Ex‐ ecutive and Legislative is governed by (some) constitutional rules aimed at limiting the parliamentary dynamics between the political parties and at ensuring a higher level of stability of the Executive.6 The anti-fascist political parties, who held a very wide majority within the Constituent Assembly, sought, especially during the first months of its operation, to avoid the risks of ‘assembly government’ (ie the instability of executives and their being held hostage by contingent parliamentary majorities, as occurred during the French III Republic). This rationalizing aim was clearly demonstrated by the “Perassi resolution”, approved by the

6 On the concept of “rationalised parliamentarism” see Boris Mirkine-Guetzevitch, Les Constitutions de l’Europe Nouvelle, (Delagrave 1928), 13 ff and 22 ff.

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Second Subcommittee on 5th September 1946, which deemed “unfit to the condition of Italian society both the presidential and the directorial gov‐ ernments and opted in favour of the parliamentary system, to be ruled, in any event, through constitutional mechanisms capable of guaranteeing the need for the stability of Government and avoiding the degeneration of par‐ liamentarism”.7 Indeed, this rationalisation of the parliamentary form of government was reflected only in a very limited sense in the constitutional text eventu‐ ally approved by the Constituent Assembly at the end of the following year. The main political parties, especially following the rupture of the an‐ ti-fascist coalition in May 1947, preferred not to particularly empower those who, amongst them, would be future victors of political elections (above all, in the first general elections to be held in April 1948), and in‐ stead preferred to rely more upon themselves and political dynamics, rather than upon institutional mechanisms, to strengthen and stabilize the Executive.8 In other words, the parties that would have lost that 1948 elec‐ tion obtained a kind of “insurance”, as they were, in any event, granted the right to place significant obstacles in the path of the Government’s activity and, concurrently, to be directly involved in parliamentary law-making (also thanks to the secret ballot, which, notwithstanding the Constitution's silence on the matter, was maintained as the general rule for votes to be held in both Houses of Parliament). On these bases, the Italian Constitution creates a parliamentary form of government, as it requires (Article 94) that “the Government must receive the confidence of both Houses of Parliament”, accompanied by a very li‐ mited number of mechanisms of rationalization. For instance, the proposal to introduce a so-called “constructive motion of no confidence” was re‐ jected (although it was later inserted into the German and Spanish Consti‐ tutions, among others) and the main provisions aimed at strengthening the Executive comprise solely the requirement of an initial and collegial mo‐

7 La Costituzione della Repubblica nei lavori preparatori della Assemblea Cos‐ tituente (vol. VII, Camera dei deputati 1970) 944: the Perassi resolution was ap‐ proved with 22 votes in favor and 6 abstentions. 8 In relation to both these reasons, see Giuliano Amato, ‘Constitution’, in Erik Jones and Gianfranco Pasquino (eds), The Oxford Handbook on Italian Politics (OUP 2015), 71 ff, at 78.

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tion of confidence, by roll call, and some procedural requirements for the vote of a motion of no confidence.9 3. The “Normative Role” of the Government In parliamentary forms of government, the enduring existence of the con‐ fidence relationship between the Parliament and the Government would naturally imply a strong influence of the latter on the content and the pri‐ orities of law-making. In fact, it is primarily through legislative activity that the Government's program is implemented.10 This influence of the Government on legislative activity usually derives – in addition to party discipline – from the powers conferred by the Constitution and by the par‐ liamentary rules of procedure that the Government is entitled to exercise in relation to parliamentary law-making, its contents and its speed.11 Moreover, this influence also depends on the direct enactment, by the same Government, of some normative acts (subordinate, or even equal in rank to, parliamentary legislation: ie classified as secondary or primary norms), which is also allowed by many constitutions. From a comparative perspective, executives tend to use their indirect influence more intensively, employing a wide range of procedural mech‐ anisms on the law-making process that are granted to them by the Consti‐ tution. When this is the case, that is, when the Government effectively controls and directs the Parliament's law-making, there is not such a great need to also make intensive use of normative acts issued by the Govern‐ ment itself.12

9 See Luca Verzichelli and Maurizio Cotta, ‘Italy. From "Constrained" Coalitions to Alternating Governments’, in Wolfgang C Müller and Kaare W Strøm, Coalition Governments in Western Europe (OUP 2001) 444 and Marco Olivetti, La ques‐ tione di fiducia nel sistema parlamentare italiano (Giuffrè 1996). 10 Giovanni Bognetti, Dividing power: a theory of the separation of power (Wolters Kluwer 2018) and Marta Cartabia, ‘Legislazione e funzione di governo’, in Rivista di diritto costituzionale (2006) 50 ff. 11 See, also for other references, Bjørn E Rasch, ‘Institutional Foundations on Legis‐ lative Agenda-Setting’, in Shane Martin, Thomas Saalfeld and Kaare W Strøm (eds), The Oxford Handbook of Legislative Studies (OUP 2014) 462 ff. 12 See Paolo Caretti and Enzo Cheli, 'Statute and Statutory Instrument in the Evolu‐ tion of European Constitutional Systems', in Alessandro Pizzorusso (ed), Law in the Making. A Comparative Survey (Springer-Verlag 1988).

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However, since, as just remarked, the Italian Constitution does not con‐ fer on the Government many significant powers in relation to the legis‐ lative process, and the scope of the parliamentary rules of procedure was also rather limited in this regard, the Government's influence on law-mak‐ ing has primarily been exercised via a series of procedural mechanisms only developed in the parliamentary practice (most of all, the question of confidence), especially since the deep transformation of the political sys‐ tem that took place at the beginning of the Nineties. Otherwise, the Gov‐ ernment's “normative role”13 has mainly been exercised via the intense and constantly growing use of its legislative powers (that is, legislative de‐ crees and, especially, decree-laws), although these powers were only con‐ ferred rather hesitantly by the Constitution. Indeed, the Constitution referred very cautiously to the legislative pow‐ ers of the Government. First, it provided for legislative decrees (“decreti legislativi”, sometimes also known as “delegated legislation”), to be adopted by the Government, following Parliament's approval of a delega‐ tion law. Second, after some hesitation, it allowed the direct exercise of the legislative function through decree-laws (“decreti-legge”, sometimes also translated as “law decrees”), although limited their use to the “ex‐ traordinary cases of necessity and urgency”, and required each of them to be converted into law by the Parliament within the peremptory deadline of 60 days. Additionally, the Constitution, when dealing with the powers of the President of the Republic, referred briefly to regulations (“regolamenti”), which is the term currently used to refer to all secondary normative acts, traditionally issued by the Government. In the hierarchical system, while (governmental) regulations are ranked among the secondary sources of law, ie below primary sources (represented, first of all, by ordinary laws), both legislative decrees and decree-laws are instead expressly charac‐ terised as acts having the force of law, ie as primary sources of law. That is why both categories of legislative acts need an explicit constitutional basis (Articles 76 and 77, respectively) and each of them has to be accompanied by a proper parliamentary law to permanently enter the legal order: either

13 Arguing that both the normative acts of the Government and its role in parliamen‐ tary law-making can again be conducted within the “normative role” of the Gov‐ ernment, see Nicola Lupo, ‘Il ruolo normativo del Governo’, in Il Filangieri. Quaderno 2010 (Jovene 2011) 81 s.

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before, like the delegation law (“legge delega”) for the legislative decrees, or after, like the conversion law (“legge di conversione”) for decree-laws.

4. Delegated Legislation in Two Steps: Delegation Laws and Legislative Decrees According to the Italian Constitution, the legislative function can be dele‐ gated to the Government. The delegation, however, must not be en blanc: Article 76 Const. requires the delegation law to specify: a) principles and criteria; b) time, which needs to be limited; and c) object, which needs to be specific. In addition, Article 72(4) Const. includes delegation laws within the category of bills that need to be examined in accordance with the ordinary process, ie that cannot be approved directly by parliamentary committees. The Constitutional Court has interpreted this provision rather strictly, as applicable to any bill containing at least one delegation norm and even to bills aimed at postponing the deadline for adopting legislative decrees (Judgment no. 32/1962). In addition to these constitutional limitations, the delegation law is deemed free to provide for more constraints to the Government's delegated legislative activity. And it usually does, through the insertion of a series of procedural steps that the draft legislative decrees have to follow before eventually being adopted by the Council of Ministers and enacted by the President of the Republic. Among these further procedural limitations, the most frequent is the involvement of parliamentary committees, which are called upon to issue their own preliminary opinion of the draft legislative decree: an opinion that is mandatory, but (at least normally) not legally binding. In this way, the Parliament can assess in advance how the Gov‐ ernment is going to implement the delegation law, signalling where there seems to be a violation or an unsatisfactory implementation of the delega‐ tion law. Other procedural limitations may consist in asking the Govern‐ ment to collect preliminary opinions from other bodies or subjects, such as EU institutions, independent authorities, the Council of State, the Court of Accounts, trade unions, other associations or confederations, the State-Re‐ gion Conference, Regions or local autonomies, and so on. These procedu‐ ral limitations become extremely telling of the constraints, interests and values to be effectively considered by the delegated legislator, even more

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so when the principles and criteria are almost absent or are present only in a generic sense. All in all, therefore, the process of delegated legislation seems to be de‐ signed as a complex or dual means of decision-making, characterised by a continuous dialogue between Parliament and Government. In the first phase, which concludes with the approval of the delegation law (normally, originating from a governmental initiative), the last word remains with the Parliament; in the second phase, which terminates with the adoption of the legislative decree, once the opinions of parliamentary committees and oth‐ er bodies individuated by the delegation law have been collected, it is the Government, instead, which has the last word, and which defines the norms that enter into force. A third and final phase has been added to the previous two, almost sys‐ tematically since the Nineties. The delegation law often delegates to the Government to not only adopt one legislative decree (and even more than one if the objects are multiple and articulated), but also, within a further timeframe (normally one or two more years), to correct and integrate their contents, through further “corrective” legislative decrees, which need to comply with the same principles and criteria and to follow the same proce‐ dure.14 In this way, by adopting these corrective legislative decrees, the Government can have second thoughts and revise, through a sort of prefer‐ ential channel, the provisions set out in the first series of legislative de‐ crees, also in the light of their implementation. Legislative decrees have been used very frequently in relation to some subject matters, often characterised by a high degree of complexity, either legal or “political”: including new codes, administrative reforms, EU di‐ rectives’ implementation, and pension reforms.15 The advantages derive primarily from the organisation of the decision-making and its pre-defined timeframe, in two steps: first, the main directions, or the ratio; then, the

14 See Nicola Lupo, Deleghe e decreti legislativi "correttivi": esperienze, problemi, prospettive (Giuffrè 1996); Marta Cartabia, ‘I decreti legislativi "integrativi e cor‐ rettivi": il paradosso dell’effettività?, in Rassegna parlamentare (1997), 39, n. 1, 45; and Marco Ruotolo, ‘I limiti della legislazione delegata integrativa e corretti‐ va’, in La delega legislativa (Giuffrè 2009) 41. 15 Data on the main trends of Italian legislation are available on the Observatory on legislation established by the Chamber of Deputies (issuing an annual report and some comparisons with the main European countries): accessed at https://www.ca mera.it/leg18/385 on 11th August 2020.

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provision to be applied, or the voluntas.16 The main disadvantages relate to the fact that delegation laws may be rather vague and sometimes are not implemented by the Government at all. In this case, there are only political consequences, as the Government is not deemed to be legally bound to im‐ plement the delegation law. Even corrective legislative decrees, if used too intensively and even before the reform has started to be implemented, can prove counter-productive: that is, instead of offering a quicker channel for minor revisions, they may add some additional elements of uncertainty and precariousness to the more relevant reforms, thereby further diminish‐ ing the level of confidence in the legislation, even when it derives from a well-conceived normative process. 5. Urgency Legislation and its Abuses: Decree-Laws and Conversion Laws At the preliminary stages of drafting the Constitution, the Constituent As‐ sembly decided not to recognise any form of decree adopted by the Gov‐ ernment in the event of necessity. The experience of the First World War and especially of the years during the fascist regime, when decree-laws had been used very intensively, and had remained in force for years, often without even being converted into law, was still at the forefront of the col‐ lective memory. At a later stage, the Assembly eventually decided to in‐ clude them in the Constitution, although via a provision aimed at strictly limiting their use and at avoiding the main downfalls of the previous expe‐ rience. This approach explains why Article 77 Const., ie the provision allowing decree-laws, opens with a sentence that instead seems to deny them: “The Government may not, without an enabling act from the Houses, issue a de‐ cree having force of law”. Had the provision ended here, we would not have any kind of decree-law at all. However, the wording of Article 77 continues and foresees circumstances in which the Government may adopt such decrees, namely, “in extraordinary cases of necessity and urgency”. This means that these cases constitute the prerequisites for the Govern‐ ment to adopt decree-laws in compliance with the Constitution.

16 Gustavo Zagrebelsky, ‘Conclusioni’, in La delega legislativa (Giuffrè 2009) cit., 319.

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Article 77 Const. mainly regulates procedural issues arising from the enactment of a decree-law: requiring an immediate transmission of the de‐ cree-law to one of the two Houses, which needs to be convened, even dur‐ ing dissolution, within 5 days; and requiring the decree-law to be convert‐ ed into law by the Parliament, within 60 days of its enactment. It also specifies that, if the conversion does not happen by this deadline, the de‐ cree-law shall lapse and retrospectively lose its effect (“ex tunc”, which means “since the beginning”). Finally, in this case, it leaves it up to the Parliament to regulate the legal issues which have arisen as a result of the lapsed decree-law. Each decree-law, therefore, once adopted by the Council of Ministers and enacted by the President of the Republic, is transmitted to one of the Houses as an attachment to a Government bill aimed at converting it into law. The two Houses have the power to amend it and, if they want to con‐ vert it into law, they have to complete the process by approving the con‐ version law in the same terms, ie within 60 days. Notwithstanding the intention of the Constituent Assembly and all the cautions inserted into Article 77 Const., the use of decree-laws has been rather intense since the first years of the Republic, and has progressively increased, especially since the Seventies. They were often conceived (by the Government) and perceived (by the Parliament) as a kind of “rein‐ forced legislative initiative”, open to amendments and additions.17 Further accelerations of the phenomenon took place during the subsequent decades, reaching an average of more than one decree-law per day in the middle of the Nineties, also due to the so called ‘reiteration’ of (elapsed) decree-laws, which has, however, ceased, since the Constitutional Court declared this practice inconsistent with Article 77 Const. (judgment 360/1996).18 The end of this unconstitutional practice did not terminate the abuses of decree-laws. Their frequency reduced to around 2 to 4 per month, and al‐ most all were converted, although with several amendments, within 60 days. However, their contents increased very significantly, touching upon different subjects and matters, even more so after the conversion into law.

17 Alberto Predieri, ‘Il governo colegislatore’, in Franco Cazzola et al (eds) Il decreto legge fra governo e parlamento (Giuffrè 1975) VII. 18 See, also for the translation of the judgment, Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini, Italian Constitutional Justice in Global Context (OUP 2016) 166 ff.

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Heterogeneous decree-laws (often called “omnibus”) are usually more successful, as they are advanced by a stronger engine, comprising all the supporters – from different political parties and distinct ministries – of their many provisions. They tend to become even richer during the parlia‐ mentary examination and, at the conclusion of the legislative process, their conversion is often achieved thanks to a question of confidence posed by the Government, which, in this way, through a “take-it-or-leave-it” vote, manages to unify a heterogeneous and often conflicting parliamentary ma‐ jority. 6. The Powers of the Government in the Legislative Process: the Question of Confidence on Maxi-Amendments The most crucial and powerful procedural mechanism in the hands of the Government to influence parliamentary law-making, both in terms of its timeframe and its contents, is the question of confidence. It allows the Government to pre-alert the Parliament as to the crucial consequences to which a future parliamentary vote could give rise on the existence of the confidence relationship. In substance, this constitutes a sort of blackmail on the part of the Government to the Parliament and, most of all, to its par‐ liamentary majority: “on a certain issue, either you vote following my ad‐ vice, or else I resign”. In the first years of the Italian republican experience, the procedural ef‐ fects and – even earlier, due to the Constitution’s silence on this point – the constitutionality of the question of confidence were strongly disputed, even creating a rift between the President of the Chamber of Deputies, Gronchi, and his deputy, Leone (both leaders of the Christian Democratic party and destined to become, in the following years, Presidents of the Re‐ public). However, a constitutional custom progressively emerged,19 which was partially codified, first in the Chamber’s (in 1971), and then in the Senate’s, rules of procedure (in 1988), as well as, eventually, in the law no. 400/1988 (in order to require an authorization by the Council of Minis‐ ters for the question of confidence to be posed in one of the two Houses).

19 Andrea Manzella, ‘Note sulla questione di fiducia. Ancora sui rapporti fra maggio‐ ranza ed opposizione’, in Studi parlamentari e di politica costituzionale (1969) is‐ sue 5-6, 39; Marco Olivetti, La questione di fiducia nel sistema parlamentare ital‐ iano cit.

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According to this constitutional custom, the question of confidence de‐ termines three main procedural effects: a) first, as in all the other confi‐ dence procedures explicitly provided for by Article 94 Const. (motion of confidence; motion of no confidence), the roll-call vote; b) second, the chronological priority of the vote on the matter in relation to which the question of confidence has been posed; c) third, the un-amendability and indivisibility of the text on which the Government has posed the question of confidence. These procedural effects are so relevant, especially when applied to the legislative process, that often the Government targets them and makes use of the question of confidence only as a means to an end: not because it deems that vote crucial, but because it aims to accelerate the parliamentary process and to avoid the many parliamentary votes other‐ wise required (with all their accompanying unknowns). These advantages become particularly evident when the question of confidence is posed in relation to maxi-amendments, ie on amendments aimed at substituting the entire text (or at least a large part) of a bill. In fact, in this case, through a unique roll-call vote the Government is able to determine the text of the bill that is going to be approved by each House, obliging its parliamentary majority to accept it as a whole, with a “take-itor-leave-it” vote. In this way, the Government avoids the risk of having different outcomes on each article and amendment, depending on their parliamentary support, at the same time as effectively impeding debate and eliminating all margins for negotiation both within its majority and with the opposition.20 The use of the question of confidence on maxi-amendments has been extremely frequent during the last 25 years, although many scholars doubt its conformity with Article 72 (1) Const. when it requires any bill to be voted on “article by article” and then as a whole.21 However, the Presi‐ dents of the two Houses, also relying on a judgment of the Constitutional Court (judgment no. 391/1995), have avoided, to date, declaring an end to 20 Salvatore Vassallo, ‘Parliament’, in Erik Jones and Gianfranco Pasquino (eds), The Oxford Handbook of Italian Politics cit., 107-119, espec. 114. 21 See Nicola Lupo, ‘Emendamenti, maxi-emendamenti e questione di fiducia nelle legislature del maggioritario’, in Eduardo Gianfrancesco and Nicola Lupo (eds), Le regole del diritto parlamentare nella dialettica tra maggioranza e opposizione (Luiss University Press 2007) 45; Giovanni Piccirilli, L’emendamento nel proces‐ so di decisione parlamentare (Cedam 2008); Giovanna Pistorio, Maxi-emenda‐ mento e questione di fiducia: contributo allo studio di una prassi illegittima (Edi‐ toriale scientifica 2018).

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this practice. Probably because this practice ensures some kind of func‐ tioning of the legislative process, especially after the substantial end of the laws approved directly by parliamentary standing committees: recognizing de facto the Government’s dominant role within it and allowing it to unite, although artificially, its own heterogeneous parliamentary majority.22 Ultimately, the practice of the question of confidence on maxi-amend‐ ments has been intensively used by every Government in the last 25 years, regardless of their political orientation. Even the opposition sometimes seems to have become accustomed to this practice, as it is much easier for it to complain about the abuse of this instrument and to generically criti‐ cize a certain bill than to examine and contrast it article by article and amendment by amendment. Anyway – as it has been remarked23 – it is clear that legislation approved through this procedure completely lacks “a sincere and full parliamentary debate which justifies the precedence tradi‐ tionally accorded to the expressions of popular will.” 7. The Case-Law of the Constitutional Court: Trying the Avoid the More Evident Flaws in Law-Making The Constitutional Court clearly plays a crucial role, within the Italian le‐ gal order, in ensuring the respect of the Constitution. That is why specific attention to its case-law is required, in order to assess which reactions have originated in response to the above-mentioned deviant practices and to verify whether the Court has been able to “protect” the Parliament and its legislative role (also from itself: ie, from laws improperly delegating its legislative function en blanc, or from parliamentary procedures annihilat‐ ing its main traditional features). It should be specified, however, that a key institutional player is also represented by the President of the Republic. All the recent Presidents of the Republic have criticised the deviations of the legislative and parlia‐

22 See, also on the basis of a parallel with France, Elena Griglio and Cristina Fasone, ‘The “Time Factor” within the Lawmaking Process: A Limit to Legislation Quali‐ ty Improvement?’, in Luzius Mader and Marta Tavares de Almeida (eds), Quality of Legislation. Principles and Instruments (Nomos 2011) 105. 23 Nicola Lupo and Giovanni Piccirilli, ‘The Relocation of the Legality Principle by the European Courts’ Case Law: An Italian Perspective’ (2015) European Consti‐ tutional Law Review, 11, 75.

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mentary practice deriving from heterogeneous decree-laws (and their con‐ version laws) and maxi-amendments. President Ciampi, in 2002 and 2004 respectively, even sent a conversion law and a delegation laws back to the Parliament precisely on the basis of the use of these practices, among oth‐ er reasons.24 Notwithstanding, throughout all these years, the Presidents of the Republic have continued to sign heterogeneous decree-laws and con‐ version laws, as well as several pieces of legislation composed of maxiarticles deriving from the approval of maxi-amendments. During the first four decades of its operation, commencing in 1956, the Constitutional Court indeed devoted most of its case-law to verifying sub‐ stantial violations of the Constitution especially in relation to legislation which pre-dated the Republic. Less attention has always been devoted to the violation of the procedural norms provided by the Constitution: there have been some significant judgments declaring the unconstitutionality of laws for formal flaws, but they have for a long time just been limited in number. Following this course, the Court has not been helped by the fea‐ tures of the Italian system of constitutional justice, as the means of access‐ ing the Court remain as they originally were, based mainly on the inciden‐ ter proceeding, through which questions of constitutionality can be brought before the Court by any judge, when the allegedly unconstitution‐ al law is going to be applied to a concrete case.25 The absence of any spe‐ cific means of access for parliamentary minorities entails that laws and le‐ gislative acts usually come to the attention of the Court at least one or two years after they have entered into force. Pinpointing a formal flaw in the approval of a legislative act and, on this basis, declaring its unconstitution‐ ality would therefore give rise to very significant effects within the legal order, especially considering the retrospective effects of the declarations of unconstitutionality. However, overall, after a first phase in which the Constitutional Court declared itself incapable of assessing whether the criteria of "extraordinary necessity and urgency" were truly met,26 and therefore permitted the prac‐ tice of maxi-amendments, the case-law has significantly evolved in the

24 See messages by Ciampi, 29 March 2002 and 16 December 2004, respectively. On them, see Giavanna Pistorio, Maxi-emendamento e questione di fiducia cit., 262. 25 See Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia and Andrea Simoncini, Italian Constitutional Justice in Global Context cit., 54. 26 See Raffaele Bifulco and Davide Paris, ‘The Italian Constitutional Court’, in Armin von Bogdandy, Peter M Huber and Christof Grabenwarter (eds), Max

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last 25 years. The Court has more recently aimed to limit the most relevant deviations from the Constitution, although with some hesitations, and without definitively putting an end, at least for the moment, to practices that seem to menace some fundamental elements of the liberal State. The Court has always been very cautious with respect to delegated leg‐ islation too, and has avoided, with very limited exceptions,27 striking down either delegation laws, where inconsistent with the requirements es‐ tablished by Article 76 or Article 72(4) Const., or legislative decrees, where inconsistent with the provisions of the respective delegation law (the so-called “eccesso di delega”). The lack of significance attributed to formal flaws, and more specifically to the violation of delegation laws by legislative decrees, was demonstrated by an observation of a former presi‐ dent of the Constitutional Court, Giuseppe Branca, who affirmed, in 1970, that when a legislative act has been declared unconstitutional for violation of Articles 76-77 Const., it is almost always due to more pressing constitu‐ tional reasons, which – although not necessarily explicit – are hidden be‐ neath the more obvious violations.28 Consistently with this cautious approach, the Court has recognized, while scrutinizing the delegation laws, that the “principles and directive criteria” required by Art. 76 Const. “present in practice an extremely var‐ ied phenomenology, which oscillates from hypotheses in which the dele‐ gation law outlines its purposes with very broad boundaries, substantially leaving them to be determined by the delegated legislator, to hypotheses in which the same law establishes "principles" of low levels of abstractness, specific purposes, specific guidelines and defined coordination measures, or even sets out inextricably mixed principles with detailed disciplinary rules” (judgment 224/1990). Moreover, while examining the legislative decrees, the Court has theorized that their provisions need to be interpret‐ ed in a manner that is compatible with the principles and directive criteria (judgement 425/2000, inter alia). Since the Nineties there has, however, been a trend toward a more rigorous scrutiny of legislative decrees in the

Planck Handbook in European Public Law. III. Constitutional Adjudication: Insti‐ tutions (OUP 2020) 462. 27 See, in particular, judgments 37/1960; 2/1961; 28/1961; 126/1963; 41/1964. 28 Giuseppe Branca, 'Quis adnotabit adnotatores?' (1970) in Foro italiano, V, c. 17 ff., par. 21.

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event of violation of delegation laws, and even of the delegation law being inadequate for its own reasons.29 Turning to the decree-laws, the Court's initial statements were aimed at safeguarding a huge discretion to the Government and the Parliament when implementing Article 77, and therefore also when interpreting in a subjective manner the existence or otherwise of preconditions of extraor‐ dinary necessity and urgency. In other terms, according to the Court's ini‐ tial judgments, the possible absence of the preconditions of extraordinary necessity and urgency would give rise to a defect which was deemed un‐ questionable by the Constitutional Court, especially once the conversion law had intervened (inter alia, judgment no. 108/1986). Following a very intense usage of the decree-laws, the case-law of the Constitutional Court started becoming more rigorous in relation to this matter. In particular, the Court affirmed (from judgment no. 29/1995) the possibility of declaring a decree-law unconstitutional, even once it had been converted into law, in cases of “evident lack of the extraordinary pre‐ conditions of necessity and urgency” required by Article 77 Const. How‐ ever, the Court has been rather reluctant to scrutinise the prerequisites of decree-laws, because it considers that the decision to adopt a decree-law falls within the margin of discretionary power of the political bodies.30 The Constitutional Court was, instead, very effective in judgment no. 360/1996, which has already been mentioned, in which the Court declared the then well-established practice of reiteration of decree-laws to be incon‐ sistent with Article 77 Const., for a variety of reasons. In fact, according to the Court, such reiteration: a) “alters the provisional nature of decree-laws, de facto postponing the peremptory deadline”; b) reduces the value of the extraordinary character of the prerequisites of necessity and urgency; and c) weakens the sanction of the retrospective lapse of non-converted de‐ cree-laws. Furthermore, from a more general perspective, “if their use is diffused and prolonged over time, as has happened in recent times, such reiterations affect the institutional equilibrium, altering the form of gov‐ ernment and the ordinary attribution of the legislative power to the Parlia‐

29 Examples in Gloria Marchetti, La delegazione legislativa tra Parlamento e Gover‐ no: Studio sulle recenti trasformazioni del modello costituzionale (Giuffrè 2016) espec. 297 ff. 30 However, for some decisions in which the Court exercised such a scrutiny, see Bi‐ fulco and Paris, ‘The Italian Constitutional Court’, cit., 462.

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ment (Article 70 Const.)” and wounds “the certainty of law in the relation‐ ship with citizens”. As to the homogeneity of decree-laws, the Court conceded, while also raising some doubts, the admissibility of decree-laws ab origine with di‐ verse content, when their provisions, although heterogeneous with respect to their subject matter, presents some homogeneity regarding their aims (judgment no. 244/2016). In relation to the homogeneity of conversion laws, the Court clarified (especially in judgments n. 22/2012 and 32/2014) that the conversion law is not a parliamentary statute like any other. Therefore, the conversion law can neither legalize a decree-law which was originally adopted without meeting the prerequisites of necessity and urgency, nor insert amendments devoid of any connection with the content of the decree-law. In other words, “the power of conversion cannot in fact be regarded as a mere manifestation of the ordinary legislative power of the Chambers of Parlia‐ ment, as the conversion law is ‘specialised and intended for a specific function’”. Consequently, the Court struck down some provisions inserted by the Parliament while converting the decree-law that were clearly unre‐ lated to the decree-law, and declared them to be ultra vires, because they did “not respect the typical function of the conversion law”, using the spe‐ cial procedure provided for this category of laws.31 Finally, the approach of the Constitutional Court regarding the question of confidence on maxi-amendments was initially rather tolerant. This was especially evident when, in judgment no. 391/1995, the Court affirmed that the question of confidence, once posed by the Government, gives rise to a special legislative procedure that can also derogate from the constitu‐ tional rules established by Article 72, first paragraph, Const. Over the course of the last decade, however, the Court's case-law has progressively revised the principal findings of its judgment no. 391/1995, thereby offering some important signs of change. First, in the abovemen‐ tioned judgment no. 32/2014, which struck down – although for violating Article 77 Const., not Article 72 Const. – a provision inserted in a maxiamendment “tabled by the government, which replaced the entire text of the draft conversion law”, the Court remarked that it was tabled directly in the Senate Assembly and was associated by the Government with a vote of confidence. Second, in the judgment no. 251/2014, the practice of

31 See also judgment no. 247/2019.

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maxi-amendments was characterised by the Court not as a constitutional custom, but as “a problematic practice”. More recently, a new series of rulings has been issued, in response to actions before the Constitutional Court within the framework of disputes between branches of government (“conflitto di attribuzioni”) raised by sin‐ gle MPs, which the Constitutional Court admitted, for the first time, were acting as a “power of the State”. Although these observations did not ulti‐ mately affect the result, they may potentially indicate the commencement of a new phase regarding the Court's scrutiny of the law-making process, which was traditionally was very rarely engaged in by the Constitutional Court, given its self-restraint guided by its decision not to include parlia‐ mentary rules of procedure either among the parameters, or among the ob‐ jects, of constitutional review of legislation (see judgments nos. 9/1959 and 154/1985, respectively).32 In order no. 17/2019, originated by 37 senators of the Democratic Party in relation to the budget session concluded in December 2018, the Court highlighted, in contrast with its own arguments employed in judgment no. 391/1995, that the procedural stages set out by Article 72 Const. “must al‐ ways be respected in order to guarantee the role of Parliament as a forum for debate and discussion between the various political forces as well as for approving individual legislative acts, and in order to guarantee the le‐ gal order as a whole, which is premised on the prerequisite that all repre‐ sentatives be afforded broad scope to contribute to the formation of the will of Parliament”. In its final statement, summarizing its decision – of inadmissibility, taken at a preliminary stage (prima facie) – the Court pointed out that the manner in which the parliamentary agenda had been brought to bear in relation to the State budget bill for 2019 had exacerbat‐ ed the problematic aspects of the practice of associating maxi-amendments with a question of confidence. Nevertheless, it is important for the Court not to disregard the fact that the parliamentary examination of the bill was conducted under time pressure due to the lengthy negotiations with Euro‐ pean Union institutions, in accordance with the Senate's new rules of pro‐

32 A very broad academic debate has taken place on this order: see Nicola Lupo, ‘Un’ordinanza compromissoria, ma che pone le basi per un procedimento legislati‐ vo più rispettoso della Costituzione’ (2019) no. 4, available at www.federalismi.it (accessed 12th August 2020), and Federica Fabrizzi, La Corte costituzionale giu‐ dice dell'equilibrio tra i poteri (Giappichelli 2019) and Luca Di Majo, La qualità della legislazione tra regole e garanzie (Editoriale scientifica 2019) 225.

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cedure, and without entirely excluding effective discussions held during the previous stages concerning texts that were incorporated, at least in part, into the final version. One year later, in the absence of any improvement of the parliamentary rules of procedure, a similar conflict of attribution was raised again – this time by MPs of Forza Italia, Fratelli d’Italia and Lega – complaining about the way in which the Chamber of Deputies had examined the State budget bill for 2020, in only eight days, and again through a question of confi‐ dence on the entire bill, in the same text just approved by the Senate. The outcome was, indeed, not very different as the Court, in its order no. 60/2020, also ruled this new conflict inadmissible prima facie: remarking that the absence of the supporting circumstances referred to by order no. 17/2019 was not decisive and that the objective sequence of facts did not demonstrate an unreasonable imbalance between the demands at stake in the parliamentary procedures and, thus, any manifest violation of the MPs’ constitutional powers.33 8. Constant Trends and Pitfalls in Italian Law-Making and the Success of Populist Movements As just remarked, notwithstanding the progressive developments within its case-law, the Constitutional Court has not been capable, on its own, of putting an end to such critical deviations from the well-balanced parlia‐ mentary process, and only managed to limit some of their excesses. This means that these trends and pitfalls, which have been consolidated throughout the last thirty years, have not only failed to improve the quality of the legislation approved, but have in fact significantly decreased its qualitative level. The main indication of low-quality legislation is the fact that the laws and, more generally, the legislative acts have become more precarious:

33 Order no. 60/2020, on which see Renzo Dickmann, ‘Ancora in tema di legitti‐ mazione al conflitto di attribuzione dei singoli membri delle Camere… ma non dei gruppi parlamentari’ (2020) no. 2, available at www.forumcostituzionale.it (ac‐ cessed on 12th August 2020). The same outcome of inadmissibility resulted in two MPs individually complaining, each alleging a conflict of attribution, about the heterogeneity of the provisions inserted by the Senate during the conversion pro‐ cedure of decree-laws (orders nos. 274 and 275/2019).

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they require changes, adjustments, and afterthoughts, which take place within a short period of time, often even just a few days after the legisla‐ tion has come into force.34 In other words, the Parliament has been mov‐ ing in an “ad hoc” manner, mainly inspired by contingent and short-term logic: by assigning, prolonging or even rethinking very recent legislative interventions, on the basis of their defects and the challenges identified upon application, often as a result of the reactions to which they give rise.35 All these factors have contributed to weakening the role and the image of the Italian Parliament as an effective, democratic and fair legislative body. This has allowed the populist movements – which are, by definition, anti-elitist and anti-pluralist36 – to find a very fertile environment for criti‐ cizing the Parliament and the political class, in the name of more direct and democratic channels of representation and law-making. The success of populist movements in Italy in two consecutive elec‐ tions, 2013 and 2018, may have several different possible explanations:37 some continuity with the Berlusconi era, as Berlusconi himself was a per‐ fect example of a populist leader;38 the austerity measures adopted at the beginning of the decade, especially by the Monti government, supported by all the main parties, that left open a wide political space to the benefit of populist forces, then still mainly extra-parliamentary, in the following elections; the incapacity of the political class to react and to achieve what

34 See Bernardo G Mattarella, La trappola delle leggi. Molte, oscure, complicate (Il Mulino 2011); Maria De Benedetto, Mario Martelli and Nicoletta Rangone, La qualità delle regole (Il Mulino 2011), espec. 181 ff; Erik Longo, La legge pre‐ caria. Le trasformazioni della funzione legislativa nell’età dell’accelerazione (Gi‐ appichelli 2017), espec. 3 ff and 257 ff. 35 Fabio F Pagano, Legittimo affidamento e attività legislativa (Editoriale scientifica 2018), 225 ff. 36 Jan-Werner Müller, What is Populism? (Penguin 2017), espec. 3 ff. For more indi‐ cations, the reference text is Cristóbal Rovira Kaltwasser, Paul A Taggart, Paulina Ochoa Espejo and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017). 37 On the success of populist movements in Italy, see Paul Blokker and Manuel Anselmi (eds), Multiple Populisms: Italy as Democracy's Mirror (Routledge 2020). On its effects on the Italian Constitution, see Giacomo Delledonne, Giuseppe Martinico, Matteo Monti and Fabio Pacini (eds), Italian Populism and Constitutional Law: Strategies, Conflicts and Dilemmas (Palgrave 2020). 38 See Giovanni Orsina, Berlusconism and Italy: A Historical Interpretation (Pal‐ grave 2014).

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they have long been proposing, in terms both of substantial policies (mi‐ gration policy; public administration reform; fight against tax evasion; in‐ vestments in infrastructures) and constitutional revision. After the failure of the constitutional referendum in December 2016, it was clear that sym‐ metrical bicameralism and the legislative process would not be revised, at least in the short and medium-term, and that the real winners were the populist movements that, together with some parts of the more traditional parties, successfully opposed the constitutional reform proposed by the Renzi Government.39 With respect to the legislative function of Parliament, indeed, as already remarked, the main peculiarities of its role as legislator had already, for the most part, been hollowed out during the previous decades, by govern‐ mental legislative acts and parliamentary practice. The advent of the first populist government, since 2018, did not alter this picture too much. On the contrary, it exploited and even accentuated the process, making a very intense usage of decree-laws and systematically posing the question of confidence on maxi-amendments, thereby even further sidelining the role of the Parliament. Notwithstanding some initial declarations that would have made a change of direction possible,40 a substantial continuity be‐ tween the first year of the XVIII parliamentary term, under a populist gov‐ ernment, and the characteristics of the last ones, from 1994 onwards, has been widely registered.41

39 On the outcome of the referendum see Nicola Lupo, ‘The Failed Constitutional Reform of the Italian Senate’ in DPCE Online, 2019 available at http://www.dpce online.it/index.php/dpceonline/article/view/747 (accessed 12th August 2020). For its relevance in comparative analysis see Richard Albert, Antonia Baraggia and Cristina Fasone (eds), Constitutional Reform of National Legislatures: Bicameral‐ ism Under Pressure (Edward Elgar 2019). 40 For example, the Speaker of the Chamber of Deputies, Roberto Fico, a leading member of the Five Star Movement, claimed in his inauguration speech the "need for the Parliament to regain its centrality that is guaranteed to it by the Constitu‐ tion", pledging to "end a confused legislating mode, made of continuous adjust‐ ments, exemptions, extensions, because it creates uncertainty and becomes a detri‐ ment to all citizens and for the growth of the country" (session of 23 March 2018). 41 See Nicola Lupo, ‘“Populismo legislativo?”: continuità e discontinuità nelle ten‐ denze della legislazione italiana’, in Ragion Pratica (2019), no. 1, 251, and Fabio Pacini, ‘Populism and Law Making Process’, in Giacomo Delledonne, Giuseppe Martinico, Matteo Monti and Fabio Pacini (eds), Italian Populism and Constitu‐ tional Law, cit., 130.

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More recently, the process of sidelining Parliament's legislative func‐ tion has been even further accelerated by the COVID-19 outbreak. The measures required to face the pandemic, during the Conte 2 Government, have mainly been adopted through decree-laws and, even more so, through implementing decrees issued by the President of the Council of Ministers (based on a rather generic authorization embedded in the first decree-law).42 All such measures have been characterized by difficult coordination and by many overlaps and reciprocal amendments. Further‐ more, the pandemic not only made it almost impossible for the Parliament to work at full capacity and ordinary speed, but also led to the postpone‐ ment, until Fall 2020, of a new constitutional referendum on the reduction of the number of deputies and senators, which, despite being a single-issue constitutional amendment, could have potentially marked a new phase in the organization and functioning of the two Houses.43 9. Conclusion. Which Legislative Role for Parliaments? The analysis of the Italian case has shown, as anticipated, the difficulty of keeping alive, under current circumstances, some of the traditional found‐ ing principles of the liberal State regarding the law-making function and the legislative role of the Parliament. Indeed, notwithstanding some pecu‐ liarities of the Italian case, the challenges ahead may potentially go to the very core of the features of liberal representative democracy and the legis‐ lative role of Parliaments. According to the classic conception of the liberal State, legislation, as deliberated and approved by the Parliament, should represent a point of balance between social pluralism and the unity of the legal system. The original formulation of legislation as “an expression of the general will” increasingly reveals itself to be problematic at the level of substantial con‐

42 Decree-law no. 6/2020, converted into law no. 13/2020, then almost completely repealed by decree-law no. 19/2020. See Massimo Luciani, Il sistema delle fonti del diritto alla prova dell’emergenza, 2020, available www.giurcost.org, and Nicola Lupo, L’attività parlamentare in tempi di coronavirus, 2020, available at www.forumcostituzionale.it (both accessed on 12th August 2020). 43 The point is indeed rather controversial, as some see in the reduction of the num‐ ber of MPs a further means of reducing the role of the two Houses: for a synthesis of the debate see Emanuele Rossi (ed), Meno parlamentari, più democrazia? (Pisa University Press 2020).

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tent, but should nevertheless still hold at the procedural level. Citizens' confidence in legislation essentially derives from it being recognizable as the outcome of a general political process, in the sense that the generality of political actors participates in it.44 In the current circumstances, the Par‐ liament and the legislative process very rarely appear to still be able to represent and seek a suitable balance between society and State, between plurality and unity, and between majority and opposition.45 However, if the Parliament, for one reason or another, can no longer perform its legislative function, this catalyzes a series of negative effects on the entire institutional system. In particular, it can also assist the pursuit and practice of a very different model, wherever possible, by populist movements. As is well-known, such movements criticize the prohibition of the imperative mandate, which is the foundation of political representa‐ tion in the modern sense. The assumption according to which the repre‐ sentatives legally detach themselves from their voters, because they claim to represent not their specific interests, but the nation as a whole, is sub‐ jected to radical criticism, especially led by populist movements.46 In their eyes, the myth of political representation is often replaced by another myth, by virtue of which the representatives return to be exclusively the "spokesmen" of the citizens: thus obliged to ask "directly", without any in‐ termediation, their opinion – according to arrangements remitted only to the leadership of the party, or rather, the managers of the platform – before taking decisions that are deemed to be beyond the original electoral man‐ date. Indeed, populist movements aim to establish an apparently instanta‐ neous democracy and unmediated legislative politics driven by social me‐

44 See Gustavo Zagrebelsky, Manuale di diritto costituzionale. I. Il sistema delle fonti del diritto (Utet 1990), 154. 45 The inevitable disappointment deriving from contemporary legislation has, for ex‐ ample, been observed by Denis Baranger, Penser la loi. Essai sur le législateur des temps modernes (Gallimard 2018) 12 ff. 46 See, for all, Ilvo Diamanti and Marc Lazar, Popolocrazia (Laterza 2018), espec. 8 ff, Cesare Pinelli, ‘The Raise of Populism and the Malaise of Democracy’, in Sacha Garben, Inge Govaere and Paul Nemitz (eds), Critical Reflections on Con‐ stitutional Democracy in the European Union (Hart 2019) 27 ff and, with specific reference to the 5-Star Movement, Giorgio Grasso, ‘Le "Mouvement 5 étoiles" et les défis de la démocratie représentative: à la Recherche d’une notion constitu‐ tionelle de populisme?’, in Rappesentanza senza populismo, special issue of Per‐ corsi costituzionali, 2017, No. 1, 205 s.

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dia and other instantaneous communication technologies, at the expense of democratic representation and deliberation.47 As it is easy to understand, in these conditions Parliament and its legis‐ lation tend to become just a sort of mirror in which citizens should be able to see themselves reflected (indeed, often seeing an image that has been 'pre-drafted' by their leaders). Consequently, if this option prevails, the “normative role” of the Government would be even more intensified and a different institutional symbology should be framed, and there would be no opportunity for the Parliament to play any effective role in law-making or to contribute in some way to increasing the public's confidence in the leg‐ islation thereby produced.

47 Ming-Sung Kuo, ‘Against instantaneous democracy’, International Journal of Constitutional Law (2019), no. 2, 554.

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How Can Parliaments Help Improve Citizens' Confidence in Legislation? Giovanni Rizzoni

Summary: 1. Introduction - 2. Efforts to Enhance the Quality of Legisla‐ tion - 3. Transparency of the Legislative Procedure as a Factor of Trust - 4. Confidence and Fairness of the Legislative Procedure - 5. Trust and Selfrecognition of Citizens in Parliamentary Decisions - 6. Conclusions 1. Introduction How can parliaments help improve citizens' confidence in legislation? To answer this question, we must first of all focus on the relationship between legislation and that particular social bond defined as trust.1 When addressing the problem of trust in legislation, we have to rely on the analytical tools offered by the sociology of law rather than by constitu‐ tional law. For the latter the crucial question is democratic legitimacy not citizens’ “trust”. In the constitutional state parliaments are the legitimate law-making institutions not because they are more “trustworthy” than oth‐ er institutions, but because they embody a pluralistic representation of popular sovereignty.2 On the contrary, in a sociological approach, trust or distrust in legislation are inherently relevant as indicators of the level of

1 In this chapter, the words “trust” and “confidence” are used interchangeably, despite possible conceptual differences between the two terms. For a discussion of this point, see Maria De Benedetto, ‘The Crisis of Confidence in Legislation: an overview’, in this volume, par. 2. As for the term “Legislation”, reference will be made mainly to parliamentary legislation, the set of legislative measures enacted by the Parliament. 2 Günter Krings, ‘Das Gesetz im demokratischen Verfassungsstaat‘, in Winfried Kluht and Günter Krings (eds), Gesetzgebung. Rechtsetzung durch Parlamente und Verwaltungen sowie ihre gerichtliche Kontrolle (Mueller 2014) 60.

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trust in the social system, and as such they are ingredients of a systemic trust that is normally independent from individual motivations.3 Systemic trust is worthy of scientific consideration because it rests on some general assumptions that are not normally subjected to debate and remain therefore latent. The latency of institutions is part of their strength in society.4 When they begin to be submitted to explicit critical appraisal, their reliability and trustworthiness are obviously challenged. But this de‐ velopment is an inevitable part of democratization processes in pluralistic societies.5 As Luhmann has observed, in the more clearly differentiated social sys‐ tems, a separation between law and trust becomes inevitable.6 Legislation is in fact necessary to regulate social relationships that are not able to reg‐ ulate themselves on the basis of trust bonds. It is precisely the lack of trust among citizens that stimulates the demand for rules guaranteed by thirdparty authorities vested with sanctioning powers. On the contrary, trust is based on different motivational sources, such as a personal willingness to take risks.7 When the law intervenes, it is because trust has become an un‐ bearable risk.8 Against this backdrop, it has been rightly observed that the institutions of liberal democracy are underpinned by a critical attitude with respect to the reliability of human behavior.9 According to the Madisonian vision, people need these institutions precisely because they are not angels, but rather they come very close to being demons. Democracy works because the ingenuity of the constitutions, through their clever game of checks and

3 Niklas Luhmann, Vertrauen. Ein Mechanismus der Reduktion sozialer Komplexität (4th ed. Lucius &Lucius 2000) 33. On the other hand, for a more economic ap‐ proach, trust as an emotive attachment to the polity and its laws can be easily re‐ placed by loyalty, as a more rational option: the result of a complex interplay be‐ tween voice and exit. See Albert O. Hirschman, Exit, Voice, Loyalty. Responses to Decline in Firms, Organizations and States (Harvard University Press 1970). 4 Mary Douglas, How Institutions Think (Syracuse University Press 2010) 45. 5 Robert A. Dahl, Polyarchy. Participation and Opposition (Yale University Press 1971) 8. 6 Niklas Luhmann, Vertrauen, cit., 52. 7 Ibid. 8 Eligio Resta, Le regole della fiducia (Laterza 2009), 8. 9 “The beginning of political and economic liberalism is distrust”: Russell Hardin, Trust (Polity Press 2006), 135.

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balances, manages to make “ambition counteract ambition”.10 If we as‐ sume that this is the rationale behind the functioning of democratic institu‐ tions, we must also ask ourselves whether the lack of trust in democratic institutions - and in their products, such as legislation – cannot, at least to some extent, be ascribed to a physiological attitude of homo democrati‐ cus.11 In this perspective, the lack of trust should not therefore be seen as an anomaly of democratic societies, but rather as one of its normal compo‐ nents. Moreover, the roots of what has been defined as “notre malheur législatif contemporain”12 have been correctly identified at the very begin‐ ning of the political project of modernity that has turned legislation into the main instrument of social reform. With the consequence of encourag‐ ing increasing expectations that have been regularly disappointed by the concrete legislative measures enacted by enlightened monarchs and, later, by democratic parliaments. Democracies must therefore accept a certain degree of distrust of citi‐ zens towards them. It is also true, however, that if this sentiment grows be‐ yond a certain threshold, it may turn into a dangerous source of delegit‐ imization for democratic institutions. A system that presupposes distrust‐ ful behavior by its components, at least for certain functions, needs at the same time mechanisms that prevent distrust from taking over, and becom‐ ing destructive for the system itself.13 Parliaments can play an important role in strengthening these mechan‐ isms. Against this backdrop, the growing political awareness of the poten‐ tial threats posed by the decline of collective confidence in legislation has pushed Legislatures, together with the Executives, to adopt active strate‐

10 “Ambition must be made to counteract ambition”, James Madison, Federalist No. 51, titled: "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”. 11 “La société démocratique […] installe les sujets dans le régime de la déceptivité: la condition de l’homme démocratique est une condition déceptive”, in Myriam Revault d’Allones, Pourquoi nous n’aimons pas la démocratie (Seuil 2010), 140, italics in the original. 12 Denis Baranger, Penser la loi. Essai sur le législateur des temps modernes (Galli‐ mard 2018), 22. 13 Niklas Luhmann, Vertrauen, cit., 117. On the other hand, a culture of trust in criti‐ cal to stimulating cooperative social and economic behavior, as emphasized by some scholars, like Diego Gambetta, Trust: Making and Breaking Cooperative Re‐ lations (Basil Blackwell 1988), Robert D. Putnam, Making democracy Work: Civic Traditions in Modern Italy (Princeton University Press 1993), Francis Fukuyama, Trust: the Social Virtues and the Creation of Prosperity (Free press 1995).

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gies to address the current crisis. In this chapter, I will discuss some of the positive actions taken by Parliaments in this field. In order to proceed in an orderly manner, I think that it may be useful to first of all draft a tenta‐ tive list of the possible sources of trust (or distrust) vis-a-vis legislation in contemporary democracies. I will then consider what responses Parlia‐ ments can activate to intervene on the different aspects implied in these complex phenomena. We can distinguish at least five different causes of trust or distrust in legislation: a) A first source of trust can be considered as being dependent on the ef‐ fectiveness of laws. From this point of view, trusting the laws means harbouring the expectation that the laws will be duly enforced and that they are truly capable of regulating social relations; b) A second source of trust derives from the “quality” of laws, from their being properly drafted, from their clarity and consistency, both internal and external, i.e. in relation with the rest of the legal system; c) A third possible source of trust in legislation is based on the degree of fairness of the procedure followed by parliaments in enacting legis‐ lative measures. According to this parameter, citizens' confidence in legislation ought to increase if they believe that law-making guarantees full transparency and follows appropriate procedural rules; d) A fourth possible origin of trust can be considered as being dependent on the degree of citizen involvement in the shaping of legislation. In this respect, citizens' confidence ought to increase if they perceive that their preferences have been taken into account in law- making directly by their representatives or through other participation channels (peti‐ tions, hearings, consultations, etc. ); e) Finally, a fifth source of trust in legislation hinges on how citizens as‐ sess the content of the laws: the degree of trust of citizens in legislation increases if they believe that the laws implement choices that are sub‐ stantively correct, useful to the community, and thoroughly pondered. In this contribution, I will focus in particular on the second, third and fourth sources of trust in legislation. I believe that these are the aspects on which Parliaments can take effective action to influence the citizens’ atti‐ tude of trust or mistrust toward the legal system. On the one hand, the ef‐ fectiveness of law enforcement actually escapes the direct control of legis‐ lative assemblies and depends largely on the operation of the other two powers (executive and judicial). On the other hand, citizens’ opinions on 228

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the merits of laws depend on many factors (value systems, political affilia‐ tion, the possibility of accessing qualified and reliable sources of informa‐ tion,14 etc.). These factors too are largely beyond the direct control of par‐ liaments. For these reasons, I believe that it is more useful to focus on the remaining three sources of trust in legislation. 2. Efforts to Enhance the Quality of Legislation The decreasing popular confidence in legislation has been frequently linked to some characteristics of the current legislative production. The re‐ liability of the legal system is seriously undermined by some evident flaws such as legislative inflation, obscure norms, lack of consistency among the different precepts contained in the laws, overlapping levels of legislation (sub-national, national, supranational). The cumulative effects produced by these different factors have led to widespread reactions of distrust and frustration vis-a-vis the whole legal system on the part of citizens, busi‐ nesses, and civil society. Steps have therefore been undertaken by parliaments and executives to address these phenomena. A new concept has emerged, that of the quality of legislation, as a standard to be achieved by the relevant law-making in‐ stitutions in order to improve citizens’ trust in legislation.15 In some juris‐ dictions the array of strategies put in place has led to the design and imple‐ mentation of explicit legislative policies intended to deploy a set of coor‐ dinated efforts to this effect. This is the case of the European Union that launched in the year 2000 a comprehensive ‘Better Regulation’ pro‐ gramme involving the three European institutions vested with normative

14 According to Luhmann, the foundations for this systemic trust in complex soci‐ eties can be critically questioned only on the basis of an immense amount of spe‐ cialized information accessible to a very restricted number of people: all the others must rely on the specialists who are entrusted with the control of the system and are therefore obliged to “live on the periphery of events” (Niklas Luhmann, Ver‐ trauen, cit., 89). 15 For a discussion of the link between trust in legislation and quality of the norma‐ tive production, see Timea Drinoczi, ‘Concept of Quality in Legislation—Revisit‐ ed: Matter of Perspective and a General Overview’ (2015) in Statute Law Review, 36, 3, 211–227.

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powers: the Commission, the European Parliament and the Council.16 Some national parliaments have pursued the objective of reducing legis‐ lative inflation by introducing specific innovations in their procedures. This is the case of those parliaments that have set up ex ante impact as‐ sessment procedures for the legislative proposals under consideration by committees.17 The assessment is normally intended to evaluate, inter alia, the financial and administrative burdens of the new rules for citizens and businesses. The evaluation can also include the different regulatory op‐ tions available to reach a given policy objective, including the “zero op‐ tion”, i.e. no new legislative measures, or the choice of a different avenue of action. Some other parliaments have set up specialized committees tasked with advising the other committees on the quality of legislative pro‐ duction from the point of view of its clarity, simplicity, effectiveness in simplifying the legislation already in force.18 The effectiveness of these innovations in producing a real improvement in the quality of legislation, however, has proven rather limited. In particu‐ lar, they seem unable to address some of the systemic factors at the origin of the ever growing complexity of contemporary legislation. A phe‐ nomenon that finds its powerful driving forces in the pressures exerted by a set of different actors, such as vested interests, the public administration, and sometime the judiciary itself: entities that, though on the basis of dif‐ ferent reasons, all converge in increasing the demand for ever more de‐ tailed and “tailor-made” rules. Beyond these obvious shortcomings, the very idea of the quality of legislation can be questioned from the vantage

16 The three European Institutions signed in April 2016 an interinstitutional agree‐ ment on better legislation intended to improve the quality of law-making, review existing laws and update them where necessary. The text of the agreement is avail‐ able at accessed 15 April 2020. For a state of the art overview of the initiatives undertaken by the European Commission in this field, see the Better Regulation website: < https://ec.europa.eu/info/law/law -making-process/planning-and-proposing-law/better-regulation-why-and-how_en> accessed 15 April 2020. 17 See Rule 86, para 9 of the Rules of Procedures of the French National Assembly (as modified in 2009): “Les rapports faits sur un projet de loi déposé sur le bureau de l’Assemblée comportent en annexe un document présentant les observations qui ont été recueillies sur les documents qui rendent compte de l’étude d’impact joint au projet de loi”. 18 See the “Committee on Legislation” introduced in 1998 at the Italian Chamber of Deputies (art. 16 bis of the Rules of Procedure).

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point of democratic theory. The concept encompasses the idea of citizens as consumers of a commodity – legislation – produced by specific actors (i.e. Parliaments). An approach that seems to devalue an active involve‐ ment of the citizens in the democratic process, with the risk of increasing the distance and the sense of distrust of the represented toward their repre‐ sentatives. A more promising antidote against these developments may therefore be found in ameliorating the degree of implementation of some basic democratic values incorporated in parliamentary law-making: pub‐ licity, procedural fairness, participation. 3. Transparency of the Legislative Procedure as a Factor of Trust The birth of parliamentarism is closely linked to the emergence of a criti‐ cal and informed public opinion.19 On the other hand, one of the historical missions of modern parliamentary systems is certainly linked to the func‐ tion of making political processes public. This requirement is connected to the need to ensure the full deployment of the principle of political respon‐ sibility in the first place by the executive.20 From this point of view, par‐ liamentary procedures are by their very nature directed against the oppo‐ site principle of the arcana imperi. In order to enforce the principle of publicity towards other institutions, parliaments must first and foremost be transparent themselves. It is for this reason that modern parliaments have adopted, often on the basis of specif‐ ic constitutional provisions, the principle of publishing their proceedings. This practice was established for the first time by the French Constituent Assembly and it brought about a radical change of paradigm in political communication.21 In Great Britain too the traditional practice of Parlia‐

19 Jürgen Habermas, Strukturwandel der Öffentlichkeit, Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft (Neuaufl. Suhrkamp 1991), 122. 20 “The proper office of a representative assembly is to watch and control the govern‐ ment: to throw the light of publicity on its acts”: John S. Mill, Considerations on Representative Government (first published 1861, Oxford University Press, 1998), 282. 21 Félix Blanc, ‘The publicity of parliamentary debates: a triumph for argumenta‐ tion?’ (2017) in Raison politiques, 65, 51.

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ment of keeping its sittings secret was gradually replaced by the publicity of parliamentary proceedings.22 Today, parliamentary publicity is implemented through multiple chan‐ nels: possibility for the public (and for the press) to attend the sittings, at least of the Plenary; printing and dissemination of written records of the sittings; publicity of the documents examined by the Parliaments (bills, amendments, motions etc.). In addition to making these documents public, modern Parliaments make available a large amount of documents pro‐ duced by other authorities (documents sent by the Executive, by indepen‐ dent authorities or by other institutions that perform control functions). In many legal systems Parliaments can also investigate issues of public inter‐ est, through inquiry committees vested with powers which are often simi‐ lar to those vested in the judicial authorities. The advent of the internet has certainly given a very strong push to‐ wards making the principle of publicity for Parliaments more effective. The documents concerning parliamentary activity (reports, legislative pro‐ posals, amendments etc.) had previously a de facto very limited circula‐ tion -substantially reserved to a restricted number of specialists. On the contrary, today these same documents are actually accessible in real time by everyone through the parliamentary websites. Currently, therefore, the publicity of parliamentary work can be said to have been implemented to an extent unthinkable before the advent of the web. Have these innovations contributed to increasing citizens' trust in par‐ liaments and in their main product, legislation? Not necessarily. When we analyze how a bond of trust is concretely structured towards institutions, we find ourselves confronted with what we can call the “confidence paradox”. Very often, in fact, the degree of trust of citizens seems inversely proportional to the degree of transparency en‐ sured by the institutions. In opinion polls on public trust, entities that are least exposed to publicity such as the army and the police usually appear in the top positions. Parliamentary institutions, precisely because they are constantly in the spotlight, are able to attract the confidence of citizens to a much lesser degree.23

22 John C. Trewin e Evelyn M. King, Printer to the House. The Story of Hansard (Methuen 1952), 4. 23 According to Standard Eurobarometer 92 (December 2019) accessed 15 April 2020, 61 % of the European citi‐

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We are confronted with a trend already prefigured by the well-known saying attributed to Bismarck, according to which it would be preferable for citizens not to know how laws are produced, as is the case for sausages24 ... These possible paradoxical effects of publicity on trust by citizens are moreover connected to the more general problem concerning the social perception of political conflict, which democratic parliaments are ex officio called upon to represent. A question that seems central to me and to which I will return later. Again with regard to the publicity of parliamentary proceedings, a fur‐ ther caveat must also be made. The breadth of this publicity regime seems to be in a trade-off relationship with the ability of parliamentary proce‐ dures to produce decisions, especially when these are the outcome of com‐ promises between conflicting positions. In this connection it has been rightly noted that, especially in more restricted contexts (such as the com‐ mittees), parliamentary work needs a certain degree of confidentiality to allow useful mediations between members of parliament.25 If exposed to publicity - as is normally the case in plenary sittings - MPs are naturally inclined to express the official positions of their political side, maximizing the differences vis-a-vis their political adversaries. It is in more limited and reserved contexts that the agreements based on acceptable balances between conflicting interests can be found. Making these more confiden‐ tial parliamentary venues public would probably have the effect of moving the real opportunities for seeking a common ground and pursuing media‐ tion out of the parliamentary halls. Despite these considerations, it is clear that parliaments must continue to uphold publicity as a fundamental guiding criterion of their work also in the future. The new digital means of communication offer from this point of view not only the possibility of making this principle much more effect‐ ive than in the past. They also allow parliaments to switch from passive

zens do not trust their national Parliaments. In Italy only 27 % of citizens trust the Chamber of Deputies whereas 64 % trust the army and the police. The trust is even lower for political parties (15 %). 24 “Laws are like sausages: it’s better not to see them being made”. There are differ‐ ent versions of the same aphorism: see James Waldron, Law and Disagreement, (Oxford University Press 1999), 69. 25 See Cristina Fasone, Nicola Lupo, ‘Transparency v. Informality in Legislative Committees: Comparing the US House of Representatives, the Italian Chamber of Deputies and the European Parliament’ (2015), in The Journal of Legislative Stud‐ ies, 3, 342-359.

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publicity (public accessibility to all the documents concerning parliamen‐ tary activity) to more "proactive" communication strategies toward the citizens. These major changes obviously have an impact also on legislative procedures. All the steps of the law-making process are now made fully accessible to the public through the traditional tools, but also thanks to new channels (web tv, social media etc.). Many parliaments make avail‐ able on a daily basis a huge amount of data on their work produced in an open and reusable format.26 However, we have already seen that greater transparency is not neces‐ sarily a panacea for increasing public confidence in Parliament and its leg‐ islation. Efforts to strengthen transparency can also lead, paradoxically, to diminishing citizens' trust, as well as sometimes making parliamentary procedures less efficient in terms of their ability to produce useful deci‐ sions for the political community. Greater publicity for parliamentary pro‐ ceedings should be therefore accompanied by other actions designed to address different aspects of the legislative process, such as the overall fair‐ ness of decision making and public engagement. The following para‐ graphs will be devoted to these topics. 4. Confidence and Fairness of the Legislative Procedure A crucial aspect on which parliaments can act to increase citizens' confi‐ dence in legislation is the degree of fairness of the legislative procedure. A set of different factors converge in defining the fairness of parliamen‐ tary decision-making. Perhaps the most important aim for a democratic parliament is ensuring that all voices are heard before the final decision is taken. Parliamentary procedures have precisely the task of organising the debate in order to obtain this result. This is a particularly complex task, as it requires distributing the roles of the different political actors (majority and opposition, members of the executive, backbenchers and front‐ benchers, etc.) in order to allow a balanced and productive political inter‐ action. Obviously there are no pre-packaged recipes to achieve this result, as the criteria to be followed are largely dependent on the political culture,

26 On these developments, see Rafael Rubio and Ricardo Vela, Open Parliaments around the World. Open Parliaments Tools in Comparative Perspective, Luiss School of Government Working Papers, 49, 2019. https://sog.luiss.it/sites/sog.luiss .it/files/WP%2049%20Rubio-Vela.pdf > accessed 15 April 2020.

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on parliamentary traditions, and on the concrete power relationships exist‐ ing at a given historical moment. Beyond these important variables, parlia‐ mentary procedures tend in any case to define a deliberative arena submit‐ ted to precise rules stipulated by parliamentary rules or directly by consti‐ tutions. In doing so, they normally include an ethics of political discourse implemented according to much more stringent criteria than those applica‐ ble to the general public sphere.27 A parliamentary debate certainly risks appearing in the eyes of citizens much more boring and repetitive than a television talk show. Compared to the television or social media dimen‐ sion, parliamentary procedures are however aimed at a double objective: on the one hand, they are intended to produce a decision, normally taken respecting the will of the majority; on the other hand, they should safe‐ guard the “deliberative quality” of parliamentary decision-making.28 This necessary guarantee function does not preclude that much more can be done to simplify parliamentary rules and to make debates more im‐ mediately understandable to citizens, eliminating everything that may still appear as an unnecessary ritual in the procedures used by elected legisla‐ tures. This need is particularly felt today, when Parliaments are exposed to the public as never before in their modern history. Making debate and de‐ cision-making procedures meaningful even for non-experts is necessary if Parliaments want to re-propose in modern terms the pedagogical function theorized by Walter Bagehot. Will the enhancement of the deliberative quality of parliamentary de‐ bates affect the degree of citizens’ trust in legislation? We do not have any direct evidence to confirm this effect. The trust-building function of par‐ liamentary procedures can be better verified within parliaments them‐ selves, among their members. One of the not negligible by-products of parliamentary decision-making is, in fact, that of creating links of collabo‐ ration between MPs, without however cancelling their differences of roles and political affiliation. In order to better analyze this effect, it can be helpful to make reference to the conceptual framework proposed by Robert Putnam in one of his

27 Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Suhrkamp 1998), 372 ss. 28 For an attempt to measure the deliberative quality of parliamentary debates, see Marco Steenbergen et al., ‘Measuring Political Deliberation: A Discourse Quality Index’ (2003), in Comparative European Politics, 1, 21–48.

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most insightful works. In Putnam’s theory29 “bridging” is the function of building connections and alliances among different and virtually conflict‐ ing social groups, whereas “bonding” refers to the working of ties within like-minded communities. Parliamentary legislation is one of the possible sources of the “bridging capital” of a polity as far as the legislative process is able to take into ac‐ count a greater amount of the differences existing within a given society. Parliament is also the place where the representatives of the people are obliged to speak to one another, in an age in which political communica‐ tion is dominated by a unilateral attitude. In the modern “infosphere”, the strategy is rather to fire the first shot, and, even more importantly, to fill, to saturate the communicative space, no matter with what. The point of every democratic parliament is exactly the opposite: the articulation of a fair debate in which every voice has the opportunity to be heard. From this point of view there is a discursive ethics incorporated in parliamentary rules, as Habermas noted.30 In order to be convinced of this, we do not need to believe in the XIX century myth of the deliberative parliament as described by John Stuart Mill: the parliament as a free forum open to the reciprocal persuasion of legislators, each of one representing the nation free of mandate.31 We know that modern political representation is dominated by political parties, that it can be captured by vested interests, lobbies etc., but it is still true that in most of the democratic countries parliaments are the places where bridges are built among different sectors of modern societies sub‐ mitted to growing phenomena of polarization. In the long run, the “bridg‐ ing” factor appears indispensable to create peaceful societies in increas‐ ingly multicultural contexts.

29 Robert Putnam, Bowling Alone: The collapse and Revival of American Community (Simon & Schuster 2001), 60-61. 30 See note 27. 31 “Their (i.e. of parliaments) part is to indicate wants, to be an organ of popular de‐ mands, and a place of adverse discussion for all opinions relating to public mat‐ ters, both great and small”: John S. Mill, Considerations on Representative Gov‐ ernment, cit., 284. As is well known, Carl Schmitt was among the sharpest critics of this model of parliament as the home to the liberal clase discutidora as famous‐ ly defined by Juan Donoso Cortés.

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The “transformative” parliaments seem in a better position to perform this bridging function than the “arena” Parliaments.32 Since they are di‐ rectly engaged in drafting legislative texts, they naturally develop a culture oriented toward compromise and negotiation. A culture that offers strong incentives to develop a collaborative attitude among the MPs. The rootedness of this culture in the Italian Parliament was, for exam‐ ple, fundamental for keeping together a country otherwise divided by pro‐ found economic and social political cleavages. This experience was mis‐ takenly considered an example of consociationalism. The Italian case (at least since the founding of the Republic to the 1990s) cannot be classified under the category of consociational democracies, at least if we follow the criteria indicated by Arend Lijphart. According to this scholar,33 democra‐ cies in which large coalition governments are formed with the participa‐ tion of the nation's main political forces are consociational democracies. This is not the case in Italy, where for over forty years of democratic histo‐ ry the opposite principle of the conventio ad excludendum (convention to exclude) of the largest opposition party (i.e., the Communist Party) has been imposed rather than the possibility of accessing the government. It is true, however, that precisely in the law-making in Parliament, Commu‐ nists and Christian Democrats found an opportunity for mediation and seeking a common ground, not on the basis of a grand coalition agree‐ ment, but thanks to negotiations carried out from time to time on individu‐ al measures.34 This practice - which had had an important precedent in the shared writing of the new constitution by the Constituent Assembly - ce‐ mented precisely that capital of inter-party confidence that was fundamen‐ tal to ensuring the political survival of the democratic republic born after Fascism. The Italian example shows how parliaments can play the role of “incu‐ bators” of trust within the political system. The same example shows how‐ ever the difficulty to produce a spillover effect for trust from within the 32 I refer to the well-known conceptualization proposed by Nelson Polsby, ‘Legisla‐ tures’, in Fred Greenstein, Nelson Polsby (ed.), Handbook of Political Sciences (Addison Weselay 1975). 33 Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-six Countries (2nd ed., Yale University Press 2012). 34 Nicola Lupo and Giovanni Rizzoni, ‘Foreign influences on (the Procedure and Content of) the Italian Legislative process’, in Nicola Lupo and Lucia Scaffardi (eds), Comparative Law in Legislative Drafting. The Increasing Importance of Di‐ alogue amongst Parliaments (Eleven International Publishing 2014), 125-6.

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political class to the society at large. The latter suffers - not only in Italy – from an endemic syndrome of separateness and estrangement from the po‐ litical institutions, parliaments included. The challenge is therefore to overcome this thick barrier of diffidence and mistrust that divides legisla‐ tives assemblies from citizens. 5. Trust and Self-recognition of Citizens in Parliamentary Decisions We now come to what can be seen as the most demanding task for parlia‐ mentary procedures. I am referring to the construction of a self-recogni‐ tion relationship of the community with respect to the choices made by Parliament. In modern constitutional systems the legislative function is attributed to parliaments precisely because they are supposed to best represent the dif‐ ferent political and social orientations of a given polity. For this reason, parliamentary legislation is normally the outcome of a conflictual process. This intrinsic feature of the democratic law-making affects the public per‐ ception of the outcome of such process. In other words it can undermine the citizens’ confidence in legislation as the product of the sometimes harsh confrontation taking place in the elected assemblies. However, from the point of view of their possibility to attract public trust, parliaments appear to be in a much more difficult position than other institutions. Legislative Assemblies are the place of pluralistic representa‐ tion. They are therefore ex officio called upon to offer an arena dominated by a conflictual relationship between competing subjects. Hence, they can‐ not speak with one voice.35 Parliaments have as many voices as there are actors of the political interaction or confrontation (majority and opposi‐ tion, parliamentary groups, individual MPs). This feature not only puts parliaments in a position of evident disadvantage in the contemporary sphere of communication, but has also implications in terms of the degree of self-recognition of citizens in parliamentary institutions. This is all the more evident if we compare Parliaments with the public image of today's political leaders. The latter tend to project to the political community a re‐ flected image that enhances the values of unity, compactness and consist‐

35 See Philip Norton, ‘Speaking for Parliament’ (2017), in Parliamentary Affair, 2, 11.

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ent commitment towards the pursuit of certain political results. These qualities tend to prompt citizens' self-perception in narcissistic terms.36 Which obviously shows a tendency to recognize oneself in this image rather than in the fragmented and conflictual one reflected by the parlia‐ ments. The confidence that citizens tend to accord to political leaders and the distrust they express towards Parliaments (as well as toward parlia‐ mentary legislation) must therefore largely be considered as consequences of these dynamics. The best way for Parliaments to counteract these trends is to involve the people in their work. In order to be successful, this approach requires in‐ novative solutions that combine the ancient parliamentary traditions with the new tools made available by modern technologies. This strategy can be implemented through different channels that have been experimented by several legislative assemblies around the world. This is the case, for ex‐ ample, of e-petitions that have been introduced by some Parliaments, like the German Bundestag, the Scottish Parliament, the British Parliament and the European Parliament. These innovations proved very effective in con‐ veying the popular sentiment towards parliaments, especially in troubled times (as was the case with the British Parliament after the Brexit referen‐ dum). The experiences made so far show that the wide use of this specific participation channel is fully compatible with the principles of representa‐ tive democracy, also because its transformative potential (that is, its direct impact on law-making) is rather moderate.37 A more direct connection with the legislative functions would be ensured by consultation procedures

36 The narcissistic attitude is powerfully encouraged by the social media through the creation of the so called “echo chambers”, closed informational environments in which beliefs are amplified or reinforced. A trend that offers strong incentives to polarization and radicalization. These “epistemic bubbles” lead its members to dis‐ trust everybody on the outside of that chamber (on these trends, see Cass R. Sun‐ stein, #republic, Divided Democracy in the Age of Social Media (Princeton Uni‐ versity Press 2017). For a convincing approach to the relationship between narcis‐ sism and contemporary politics, Giovanni Orsina, La democrazia del narcisismo, breve storia dell’antipolitica (Marsilio 2018). See also Christopher Lasch, The culture of Narcissism. American Life in an Age of Diminishing Expectations (Nor‐ ton 1979) and Jean M. Twenge and Keith W. Campbell, The Narcissism Epidemic. Living in the Age of Entitlement (Free Press 2009). 37 Ralf Lindner, Ulrich Riehm, ‘Electronic Petitions and Institutional Modernization International Parliamentary E-Petition Systems in Comparative Perspective’ (2009) in eJournal of eDemocracy and Open Government, 1, 10.

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experimented by many parliaments at the committee stage.38 A tool that can be very effective in offering parliaments the opportunity of conducting a more complete ex-ante impact assessment of the legislative measures under consideration (also in the perspective of balancing the influence usually exerted by the vested interests with the demands conveyed by more diffuse interests). To sum up, one of the most promising approaches to combat the crisis of confidence in parliamentary legislation seems to be connected with the introduction of effective participatory channels between parliaments and citizens.39 From this point of view the challenge to be met by legislative assemblies consists in deploying a real capacity to engage the people in parliamentary work. Public engagement especially by parliamentary com‐ mittees has the potential to boost trust and improve the flow of informa‐ tion between the public and parliament.40 A challenge that is especially demanding today, when other mediating agents, like the political parties, are in profound crisis. Despite this, the attempt must be made to enhance the awareness of the citizens about the complexity of the questions at stake when it comes to law-making. Parliaments must be creative in this effort, also at the price of abandoning some well-established traditions in their proceedings. 6. Conclusions Parliaments are unlikely to get rid of the “confidence paradox” that affects them along with the legislation they produce. Indeed, they cannot re‐ nounce being a place of free debate on the fundamental rules that govern our political communities. This implies the production of legislation which is necessarily complex in that it reflects the demands of a complex society. We have seen that according to Luhmann, trust is in a problematic relationship with complexity. The mechanisms for nourishing trust are in fact based precisely on dynamics that can lead to a reduction or elimi‐

38 Rubio and Vela, Open Parliaments around the World cit., 35. 39 Cristina Leston-Bandeira and Aileen Walker, ‘Parliament and Public Engage‐ ment’, in Cristina Leston-Bandeira and Louise Thomson (eds), Exploring Parlia‐ ment (Oxford University Press 2018), 308. 40 On this point, see the action plan of Involve, a UK's leading public participation charity (https://www.involve.org.uk/about - accessed 15 April 2020).

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nation of complexity (at least in terms of perception, if not in reality). This is a very current issue today, a historical phase that has been defined as the era of populism.41 Wherever the essence of populism lies, - and the debate is still extremely open - maybe an agreement can be found on a feature common to any populist attitude: the rejection of complexity, in increas‐ ingly complex societies.42 Parliaments cannot help but offer an antidote to this trend. They should help citizens to cope with this complexity, without necessarily reducing it. With respect to the Luhmanian paradigm that con‐ nects trust to the reduction of complexity, it can be assumed that the insti‐ tutions of political representation could aspire to build a capital of civic trust based on the democratic governance of complexity. Parliaments can make a contribution in this regard with their law-making activity if they are able to construct meaningful decision-making procedures not only in‐ ternally, towards their members, but above all externally, in the direction of citizens. This objective can be achieved through procedures in step with the contemporary “infosphere” and which in this context can actually be perceived as transparent, fair and inclusive. In a nutshell, they should be able also in the future to go on building bridges between the political and social cleavages of contemporaneity.

41 Pierre Rosanvallon, Le siècle du populisme: Histoire, théorie, critique (Seuil 2020). 42 “Si l’on estime que le populisme est fondé sur une simplification de la démocratie, une simplification de la compréhension de ce que veut dire le peuple, une simplifi‐ cation de la vision des procédures susceptibles de faire vivre la démocratie, une simplification du commun, surmonter la dérive populiste invite à réfléchir à la façon de mieux accomplir la démocratie”: Pierre Rosanvallon, ‘Penser le pop‐ ulisme’, in Catherine Colliot-Thélène, Florent Guénard, Peuples et populisme (Puf 2014), 36.

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The Duty of Parliament to Adopt Reliable Legislation: Linking Trust in Parliament with Legitimate Expectations Patricia Popelier

Summary: 1. Introduction: Linking Political and Legal Notions – 2. Trust in Parliament: an Overview – 3. Trust and Legitimate Expectations – Linking Trust in Parliament and Legitimate Expectations – 4. Conclusion 1. Introduction: Linking Political and Legal Notions Trust in Parliaments has become a topical issue in political science litera‐ ture. Remarkably, neither wide democratisation nor increased accessibility and transparency of Parliament have increased the level of trust the public puts in their respective parliaments.1 In fact, both in new and established democracies, Parliament is trusted by less than half of the population.2 Out of 18 EU Member States included in the European Social Survey database, only Sweden and Finland are trusted by a majority of the popu‐ lation. Most scholars view this from the angle of the legitimacy and stability of democratic systems. While most find the lack of trust in Parliament worry‐ ing, others see it as a sign of critical citizenship that forces the system to be responsive.3 Only rarely has this been observed from the angle of legis‐ lative studies to see what this means for the quality of legislation. Various scholars have pointed out that good government performance is one of

1 Cristina Leston-Bandeira ‘Conclusion: ‘Parliaments’ Endless Pursuit of Trust; Re‐ focusing on Symbolic Representation’ (2012) in The Journal of Legislative Studies, Vol. 18, no. 3-4, 265. 2 Concerned by this observation: Sören Holmberg, Staffan Lindberg and Richard Svensson ‘Trust in Parliament’ (2017) in J. of Public Affairs Vol. 17, no. 1-2, 7. 3 See in particular Pippa Norris (ed) Critical citizens: Global support for democratic government (Oxford University Press 1999).

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several factors that generates trust.4 Government performance, however, is a very broad concept.5 Mostly it is associated with a low level of corrup‐ tion, but it also includes procedural justice and, arguably, high-quality leg‐ islation. Conversely, a lack of trust is likely to impact on legislation: we can expect that people are not inclined to live by the rules that are pro‐ duced by an institution in which they do not put faith,6 unless they are forced to by a more authoritarian regime. Empirical studies have indeed demonstrated that citizens are more likely to evade taxes if they do not trust the government; and that, more generally, citizens with a low level of political trust are less likely to follow governmental regulations and, con‐ versely, citizens that do find authorities trustworthy are more likely to fol‐ low their decisions.7 Hence, we can expect that distrust in parliament gen‐ erates law disobedience, which in turn forces the lawmaker to turn to reparative legislation with more technical and detailed rules to stop loop‐ holes and to raise enforcement costs. Despite the mutual influence of (dis)trust in Parliament and the quality of legislation, most legal scholars have so far shown little interest in the notion of trust. They are, on the other hand, more familiar with legal no‐ tions that have much in common with the idea of trust. One such notion is the concept of ‘legitimate expectations’ as part of the principle of legal certainty. Legal certainty addresses all government actors, including Par‐

4 Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust: Trends in New and Established Democracies’ (2006) in International Journal of Public Opinion Research Vol. 18 no. 1, 43, 45; L Diamond, ‘Building trust in government by improving governance’ Paper presented to the 7th Global Forum on Reinventing Government: ‘Building Trust in Government’ (Vienna, June 27, 2007). Tom Van der Meer, ‘In what we trust? A multi-level study into trust in parliament as an evaluation of state characteristics’, (2010) in International Review of Adminis‐ trative Sciences Vol. 76 n. 3, 529, however, notes that this relationship is stronger among the higher educated. 5 About the difficulties this causes for performance measurement, and a proposal for a more integrated approach: Kaifeng Yang and Marc Holzer, ‘The PerformanceTrust Link: Implications for Performance Measurement’ (2006) in Public Adminis‐ tration Review Vol. 66, n. 1, 114-126. 6 Sören Holmberg, Staffan Lindberg and Richard Svensson, ‘Trust in Parliament’, cit.1. 7 Sofie Marien and Marc Hooghe, ‘Does political trust matter? An empirical investi‐ gation into the relation between political trust and support for law compliance’ (2011) European Journal of Political Research Vol. 50, no. 2, 267-291, with further references.

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liament, executive, administration and courts. With regard to the first, the concept is based on the idea that Parliament should not frustrate the expec‐ tations of people that rely on legislation. This gives a normative feature to the idea of trust: Parliament should produce reliable legislation, and should therefore be trustworthy so as to not harm individual interests through unexpected changes in legislation. The aim of this paper is to link trust-in-parliament studies with studies on legitimate expectations in legislation. The central question is: how is the notion of legitimate expectations related to the concept of trust in Par‐ liament? This way, the relationship between reliability and trustworthi‐ ness, or between prediction and trust, is clarified. By analysing the inter‐ play of trust and legal alternatives to trust, the paper puts the finger on the role of courts in conceptualizing the principle of legitimate expectations. To explore all this, this paper will first give an overview of findings on trust in Parliaments (section 2), followed by an analysis of the notion of legitimate expectations (section 3), before linking both concepts (section 4). 2. Trust in Parliament: an overview ‘Trust’ is essentially a psychological state of mind and refers to a subjec‐ tive evaluation of a relationship between the trustor and the trustee. It points to a one’s expectations that another person, on whom one depends, will act favourable to one’s interests, or does at least not have the intention to harm them.8 This takes place in a situation of uncertainty: the trustor is willing to take risks based on the belief that the trustee will act in his or her interests. Trust is therefore defined as ‘a psychological state compris‐ ing the intention to accept vulnerability based upon positive expectations of the intentions or behavior of another’.9 Scholars then try to find the fac‐ tors that generate trust. Psychologists are mostly interested in internal at‐

8 Roderick M Kramer, ‘Trust and Distrust in Organizations; Emerging Perspectives, Enduring Questions’ (1999) in Annu. Rev. Psychol. Vol. 50, 571; Denise M Rousseau, Sim B Sitkin, Ronald S Burt and Colin F Camerer, ‘Not so Different af‐ ter All: a Cross-Discipline View of Trust’, (1998) in The Academy of Management Review Vol. 23, no. 3, 395. 9 Denise M Rousseau, Sim B Sitkin, Ronald S Burt and Colin F Camerer, ‘Not So Different after All’, cit. 395.

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tributes of trustors and trustees, economists in calculative or institutional factors, and sociologists look at socially embedded properties of relation‐ ships.10 While trust literature was, initially, mostly interested in individual rela‐ tionships, it was subsequently applied to organizations and public sys‐ tems.11 Political scientists are interested in the level of trust that the public puts in politics, as an indicator of the legitimacy and stability of a demo‐ cratic system. To this end trust in Parliament is measured, alongside trust in government and other authorities, on the basis of surveys that ask how much confidence (on a scale) the respondent has in this body. To explain trust or distrust in Parliament, independent variables are sought in (a) external circumstances, (b) individual attributes of the trustor (the public), and (c) attributes of the trustee (Parliament or Members of Parliament). Studies establish that citizens are more likely to trust Parlia‐ ment when: a) the level of corruption is low,12 the government performs well,13 the country has a system of proportional representation14 and is a long‐ standing democracy;15 and b) they experience (economic) well-being (which differs from the coun‐ try’s objective economic performance);16 are higher educated;17 hold

10 Denise M Rousseau, Sim B Sitkin, Ronald S Burt and Colin F Camerer, ‘Not So Different after All’, cit. 393. 11 See for example Frédérique Six and Koen Verhoest (eds), Trust in Regulatory Regimes (Edward Elgar 2016). 12 Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust’ cit. 45-46; Tom Van der Meer, ‘In what we trust?’, cit. 528. For the Euro‐ pean Parliament: Christine Arnold, Eliyahu V Sapir and Galina Zapryanova, ‘Trust in the institutions of the European Union: a cross-country examination’, in European Integration online Papers (EIoP), Special Mini-Issue 2, Laurie Beaudonnet and Danilo Di Mauro (eds) ‘Beyond Euro-skepticism: Understanding attitudes towards the EU’, Vol. 16, Article 8, 4. 13 Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust’ cit. 42. 14 Tom Van der Meer, ‘In what we trust?’ cit. 528. 15 Tom Van der Meer, ‘In what we trust?’ cit. 528. 16 Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust’ cit. 42, 43; Tom Van der Meer, ‘In what we trust?’ cit. 528-532. 17 Sören Holmberg, Staffan Lindberg and Richard Svensson, ‘Trust in Parliament’ cit. 5. Tom Van der Meer, ‘In what we trust?’ cit. 529, 530 is more nuanced: the

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high democratic attitudes and low corruption permissiveness;18 have a trusting disposition (trust within family and one’s personal circle ex‐ tends to trust in strangers, social services, and government);19 are in‐ volved in social organizations;20 are interested in politics,21 are not po‐ litically radical,22 do not hold post-materialist values that challenge au‐ thority,23 and have the same ideological leaning as the government in power.24 As for category c, it has been observed that ‘increased levels of parliament accessibility, transparency, visibility and communication have not co‐ incided with increasing levels of trust’.25 On the contrary: conflict of inter‐ est regulation constraining MPs is negatively associated with trust in Par‐ liament, which can be explained by the fact that these rules problematize behavior that the public might otherwise have accepted, and confirms sus‐ picions about MPs moral standards by giving publicity to violations of COI rules.26 The conclusion was that there is not much that Parliament can do to gain trust, apart from investing in ‘symbolic’ representation to keep the confidence of those who already trust the Parliament, by ensuring a

18 19 20 21

22 23 24 25 26

level of corruption is more strongly related to trust in parliament among the higher educated than among the lower educated. Moreover, high education is negatively associated with trust in the European Parliament: Christine Arnold, Eliyahu V Sapir and Galina Zapryanova, ‘Trust in the institutions of the European Union’, cit. 23-24. Gabriela Catterberg and Alejandro Moreno, ‘The Indvidual Bases of Political Trust’, cit. 42. Jenny Job, ‘How is trust in government created? It begins at home, but ends in the parliament’ (2005) in Australian Review of Public Affairs, Vol. 6, n. 1, 1-23. Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust’ cit. 42. Nicole Bolleyer and Valeria Smirnova, ‘Parliamentary ethics regulation and trust in European democracies’, (2017) in West European Politics, Vol. 40, n. 6, 1234; Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust’ cit. 42. Ibid. Gabriela Catterberg and Alejandro Moreno, ‘The Individual Bases of Political Trust’ cit. 42. Sören Holmberg, Staffan Lindberg and Richard Svensson ‘Trust in Parliament’ cit. 5. Cristina Leston-Bandeira, ‘Conclusion’ cit. 521. Nicole Bolleyer and Valeria Smirnova, ‘Parliamentary ethics regulation and trust in European democracies’ cit. 1234.

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sense of identification, e.g. by strengthening public engagement27 or by giving room for the representation of different groups in society.28 However, if trust strongly depends on the government’s performance, and if trust in Parliament is linked with trust in politics as such, Parliament has an important role to play in controlling the government and in moni‐ toring the law-making process. Where, in parliamentary systems, the ties between the government coalition and the parliamentary majority make this difficult, procedures imposed on the government to carry out impact analyses and to expose the details of the consultation process, should rem‐ edy this. This focus on the Parliament’s monitoring function is important, as it is linked with the notion of procedural justice. Studies reveal that government bodies are considered more legitimate if they meet the criteria of procedural justice, whereas citizens are more likely to uphold the law if the government tends to violate due process requirements.29 We can ex‐ pect that the same applies to legislation. 3. Trust and legitimate expectations In scholarship, trust and prediction have been named as two separate no‐ tions to reduce complexity in order to develop plans of action. But while prediction is based on information about causal relationships that allow us to calculate future behaviour and outcomes, trust is based on confidence about how other persons will act. Trust is considered a ‘functional alterna‐ tive to rational prediction’ and a necessary corollary, because time and re‐ sources are lacking for controlling future effects.30 Trust and prediction, however, are linked. Trust is built upon, amongst others, previous experiences, and thus upon cognitive facts; and predic‐ tions are sometimes made on the basis of information that we trust to be correct. This connection is clearly reflected in the instrument of law and legislation. Law can create so-called ‘deterrence-based trust’, where a per‐ 27 Cristina Leston-Bandeira, ‘Conclusion’ cit. 524. 28 Kris Dunn, ‘Voice, representation and trust in Parliament’, (2015) in Acta Politica Vol. 50, n. 2, 171-19. 29 Margaret Levi et al. ‘The Reasons for Compliance with Law’, in Ryan Goodman et al. (eds), Understanding Social Action, Promoting Human Rights (Oxford Uni‐ versity Press, 2012) 75, 89-91. 30 J David Lewis and Andrew Weigert, ‘Trust as a Social Reality’, (1985) in Social Forces Vol. 63, n. 4, 968-969.

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son believes that the other person or the government will behave in a cer‐ tain way (in this case as imposed by the law) because it would be costly to act otherwise. This, however, is hardly a type of trust, but rather a substi‐ tute for trust, that comes into play when the level of adequate trust is low.31 Even so, we can only rely on legislation to help us make predictions about future effects and future behaviour, if we are confident that the law‐ maker will not change the law, and that the authorities and courts will en‐ force it. This is where the notion of ‘legitimate expectations’ comes in. Legiti‐ mate expectations is a notion that courts use to assess the validity of laws (or other government action) that change the legal effects of actions that were initiated with reliance on the former law, by examining whether per‐ sons had good reasons to rely on that law. In terms of trust, and with re‐ gard to the lawmaker (or Parliament), the notion comes down to the as‐ sessment of the validity of an individual’s subjective belief that Parliament will not change the legal effects of a given action by aborting the law or changing the conditions or effects laid down by the law. Like trust in Parliament, legitimate expectations have an important le‐ gitimising function. This is because the notion of legitimate expectations is a corollary of the principle of legal certainty, which refers to a person’s self-determination, i.e. the ability to determine and realise his or her own life project. Legal certainty brings freedom by enabling people to con‐ struct an adequate decision model, by reducing an overload of alternative options, and by informing persons of the legal consequences of the actions they contemplate.32 This way, the notion also has an economic function.33 The legal framework enables trade by making predictable how other eco‐ nomic partners will behave and by encouraging or discouraging invest‐ ments in specific activities. Legal changes produce reliance costs – i.e. costs for economic actors to invest given the legal framework – and op‐ portunity costs – missed benefits due to the non-realisation of expected le‐

31 Denise M Rousseau, Sim B Sitkin, Ronald S Burt and Colin F Camerer, ‘Not So Different after All’, cit. 398-399. 32 For more detail, see Patricia Popelier, ‘Legal Certainty and the European Courts. Accessibility and Legitimate Expectations as Standards of Reasonableness’, in Mark Fenwick et al. (eds), The Shifting Meaning of Legal Certainty in Compara‐ tive and Transnational Law (Hart 2017) 33-34. 33 Patricia Popelier, ‘Legal Certainty and the European Courts’ cit. 34-35.

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gal consequences.34 The concept of legitimate expectations reflects the search for an optimal balance in legal change between the social benefits of legal change and its opportunity and reliance costs.35 It does so by as‐ sessing the reasonableness of expectations. From the case law, we can deduce several factors that are considered relevant in the judicial balance.36 They can be classified in the same cat‐ egories as those used to distinguish the factors that explain trust or distrust in Parliament: a) External circumstances: persons’ expectations are not legitimate if the changes respond to new challenges or changing circumstances of which persons should be aware, fit within a larger reform that gradual‐ ly takes place or implement other (for example supranational) deci‐ sions. b) Individual attributes of the individual: persons’ expectations are not le‐ gitimate if they acted in bad faith, if the law was not a decisive factor for their action, or if they can adapt to the new situation without costs or a loss of investments. c) Attributes of the body (Parliament or government) and the instrument (legislation) that generate expectations: persons’ expectations are not legitimate if the changes were announced or did not bring anything new, if the previous law was ambiguous as to its effects, or if it is regu‐ larly subject to change. By contrast, expectations are more legitimate if the law is particularly motivational, nudging people to act in a certain way. The legal notion of legitimate expectations does not neatly align with the notion of political trust. From the legal point of view, the crucial question is not whether Parliament was trustworthy, but rather whether a person

34 Aurélien Portuese, ‘The Case for a Principled Approach to Law and Economics: Efficiency Analysis and General Principles of Law’ in Klaus Mathis (ed) Law and Economics in Europe. Foundations and Applications (Springer 2014) 311. 35 Aurélien Portuese, ‘The Case for a Principled Approach to Law and Economics’ cit. 314. 36 See Patricia Popelier, ‘Legal Certainty and the European Courts’ cit. 37-38. For a more detailed analysis of the relative weight of these factors in the case law of the European Court of Justice: Patricia Popelier, ‘Law and Time in Two Dimensions: Legitimate Expectations in the Case Law of the Court of Justice of the European Union’, in Sophia Ranchordas and Yaniv Roznai (eds) Time, Law, and Change (Hart 2020) 126-140.

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could reasonably have put trust in the law. If the law in itself was not reli‐ able – for example because it changed the whole time, or its wordings were not clear so that different interpretations were possible that led to dif‐ ferent possible outcomes –, then the act could not create legitimate expec‐ tations to begin with. 4. Linking trust in Parliament and legitimate expectations ‘Trust’ points at a relationship between actors: a trustee and a trustor. Per‐ sons can trust Parliament, but they cannot ‘trust’ legislation. Instead, they can rely on legislation to predict future consequences, and they can trust Parliament to abstain from legislative initiatives that change the expected outcome of their actions. Such change of perspectives reveals the mis‐ match between political trust and legitimate expectations. To get a full grasp of this relationship, we need to analyze the entire cycle of legislative actions in terms of trust and prediction. Phase 1. The cycle starts with the very act of elections on the basis of which Parliament is composed. Surveys that measure the people’s trust in Parliament do not usually specify the object of trust, i.e. what exactly it is that the people expect from Parliament. Generally, we can assume that citizens expect Parliament to fulfil its tasks in their best interest. One of these tasks is the legislative function: Parliament adopts laws that govern society and enable persons to develop their personal projects in full aware‐ ness of the legal consequences of possible actions. This means that the ba‐ sic disposition is one of both trust and prediction: people trust Parliament to adopt laws that allow them to make predictions about the legal conse‐ quences of planned actions. Phase 2. When Parliament actually adopts laws (L1), persons use these as data that inform them of the legal consequences attached to possible ac‐ tions. So, persons predict the legal consequences of a given action, and trust Parliament to not, through new legislation (L2), interfere by chang‐ ing the predicted outcome to their disadvantage. The concept of legitimate expectations addresses the second phase. In using this concept, the court mixes assessments of predictability (P) with assessments of trustworthiness (T). The reasoning is schematized as a three-step test in terms of trust and predictions (Diagram 1). In what fol‐ lows, the diagram is used to clarify the court’s reasoning, and to identify where there is room for refinement. The hypothesis is that a person took 251

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action, relying on L1, but that Parliament subsequently adopted L2, which changed the legal consequences without transitory arrangements. Diagram. The legitimate expectations test

Diagram. The legitimate expectations test Step 1

Is L1 reliable = suitable to make predictions?

Yes YYYES

Step 2

NO

Is L2 predictable on the basis of external facts?

Claim rejected

YES

Step 3

NO Could Parliament be trusted to adopt L2 considering external factors?

Claim rejected after weighing

YES

Claim rejected after weighing

NO

Claim sustained

Step 1 When a case is brought before the court, based on the claim that subse‐ quent legislation has violated legitimate expectations, the court’s focus is not on the trustworthiness of Parliament, but on the reliability of the initial law (L1). The question is: ‘how reasonable was this person’s reliance on the legislative act?’ To answer this question, the attributes of the instru‐

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ment (L1) are examined. If the law itself ascertains that the legislative pro‐ gram is established for a specific period in time – e.g. a tax shelter pro‐ gram for the next 10 years – this strengthens reliability for a period of 10 years, but makes the act unsuitable to predict what will happen after this term expires. If, by contrast, the law was ambiguous as to which condi‐ tions entails which consequences, L1 was not suitable to serve as a basis of predictions of future consequences. The same applies if L1 included a provision that made it possible for the executive to prematurely stop or ad‐ just the program. This is where the mismatch, mentioned above, pops up. The legitimate expectations test addresses phase 2, whereas the problem surfaced already in phase 1, where Parliament violated the citizen’s trust that it would adopt laws that can serve as a guidance for the development of personal projects. To address this problem, courts must give remedy already in this phase. This reveals the link between the principle of legitimate expectations and the broader legal certainty principle, of which it is a corollary. The courts’ definition of legal certainty is focused on predictability: the law should be accessible to the persons concerned and formulated with sufficient preci‐ sion to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences to which a given action may entail.37 This way, the legal certainty principle gives the courts a tool to intervene in this stage. Courts do use this tool, and sometimes they even lay the link with public trust. For example, the Euro‐ pean Court of Human Rights considered in Paduraru v Romania that the lack of legislative consistency, together with the conflicting interpretations by the domestic courts, created uncertainty and reduced the public’s confi‐ dence in the judicial system.38 Nevertheless, it is not public trust, but pre‐ dictability that is at stake here. Therefore, in order to assess the accessibil‐ ity of the law – and thus its suitability to serve as a basis for calculated predictions – the court requires persons to make some efforts in order to make the correct predictions: ask legal advice, examine the case law that

37 Established ECtHR case law since Sunday Times v United Kingdom (No 1) No 30 (1979-80) para 49. For a similar definition, in more absolute terms, see the case law of the ECJ, e.g. Case C-325/85 Ireland v Commission (1987) ECR I-5041, para 18; Case C-63/93 Fintan Duff and Others v Minister for Agriculture and Food und Attorney General (1996) ECR I-569, para 20. 38 Paduraru v Romania, No 63252/00 (2005) paras 98 – 99. See also Beian v Roma‐ nia No 30658/05 (2007) para 39.

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interprets vague provisions, and read doctrine, ministerial circulars and even parliamentary proceedings to learn more about the legislator’s inten‐ tions.39 At the same time, the requirement to enact accessible and pre‐ dictable legislation is a flexible one, taking into account the difficulties to frame laws with high precision, and considering that a certain degree of vagueness may be desirable to keep pace with changing circumstances.40 As a consequence, laws are only rarely invalidated for violating the princi‐ ple of accessibility and predictability. The foregoing makes clear that the reliability of the act is not assessed by examining the legal act alone, but in combination with the case law and practice of other bodies of government. Likewise, this joined responsibili‐ ty should also apply where Parliament inserts a clause that gives the ex‐ ecutive or another agent wide discretion to amend or abort the program. Presently, the ECJ holds that such clause makes it predictable that the pro‐ gram will be changed or stopped prematurely.41 Arguably, courts should take into account whether the government or agent has acted with respect for legitimate expectations when making use of such options, instead of merely establishing that the option was there. Step 2 If L1 was not reliable, it could not serve as a basis for predictions, which means that expectations were not legitimate. If it was reliable, the next step is to examine whether the adoption of L2 was equally predictable. This implies the presence of objective legal facts that enable a calculated prediction that L1 will be amended. Such objective facts are, for example, a larger reform that is gradually taking place and will inevitably also put L1 on the spot; or a new EU Directive that has to be implemented. In such cases, the predictability of future consequences based on L1 is weighed

39 For an analysis of the case law of the European Courts on accessibility, see Pope‐ lier, ‘Legal Certainty and the European Courts’ cit. 46-53. 40 Ibid. 41 C-284/94 Kingdom of Spain vs Council (1998 ) ECR 1-7309, para 44; C - 213/02 P, Dansk Rørindustri (2005) ECR I-5425, para 29 – 31; C-221/09 AJD Tuna Ltd (2011) I-1655, para 75; C-288 and 289/09 British Sky Broadcasting Group (2011) ECR I-2851 , para 108 – 111; C-335/09 Republic of Poland vs Commission, 26 June 2012, para 182; C-545/11 Agrargenossenschaft Neuzelle, 14 March 2013, para 30 – 33; C-611/12 Giordano, 14 October 2014, para 52.

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against the predictability of the enactment of L2. In practice, this usually leads to a rejection of the claim. However, a weighing is possible. For ex‐ ample, the petitioner has a stronger case if these new facts allow for transi‐ tory arrangements. Step 3 If there are no objective facts that make legislative interference pre‐ dictable, the next question is whether legislative interference was, if not predictable, at least probable. In terms of trust, the question is whether ex‐ ternal circumstances forced Parliament to act in order to maintain the peo‐ ple’s trust in the Parliament’s responsiveness. Such circumstances arise, for example, when economic conditions change, or when a public debate arouses. If persons could rely on L1, and no external facts made L2 pre‐ dictable or probable, then the petitioner has a strong case. By contrast, if circumstances arise that force Parliament to respond, the predictability of future consequences based on L1 is weighed against considerations of trust, forcing Parliament to react. Usually, this is decided in favor of Par‐ liament. However, here as well, the court is called to examine whether an adequate response would still allow for transitory arrangements. A particular circumstance that forces Parliament to respond, is the find‐ ing that L1 was affected by a loophole. We can assume that the public ex‐ pects Parliament to close the loophole, even if this goes against the expec‐ tations of persons that profited from the unintended ambiguity. Such loop‐ hole brings us on the brink between attributes of the act and external cir‐ cumstances. On the one hand, one might argue that such loophole does not make the act in itself unfit for a calculated prediction. It is, rather, the sub‐ sequent finding that the law produces undesirable effects that creates the expectation that Parliament will interfere. In this weighing exercise, the court includes individual attributes of the petitioner. If this person did not act in good faith, for example because (s)he was well aware that it made use of an unintended loophole, the court will take this into account. For example, the European Court of Human Rights tolerates retroactive taxa‐ tion to remedy technical deficiencies of the law, adding that there is “an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment

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regime”.42 On the other hand, the problem starts with deficient legislation. The question, then, is whether courts should tolerate that Parliament creat‐ ed loopholes in the first place. One might expect that Parliament prepares the law in such a way that loopholes are avoided, or monitors the execu‐ tive’s procedure to ensure that an informed debate is held. This implies that different stakeholders are consulted so as to avoid regulatory capture by one particular stakeholder. Practices based on adequate lobbying and consultation guidelines are minimum requirements. Arguably, if the act was not well prepared and the petitioner was not involved in the decision making process, courts should at least consider to demand some transition‐ al arrangements or compensation. 5. Conclusion The central question in this paper inquired into the relation between the concept of trust in Parliament and the legal notion of legitimate expecta‐ tions. The connection was based on the finding that good government and procedural justice further trust in government bodies, and that, in turn, trust in government bodies furthers obedience of the law. From a legal per‐ spective, the question arose whether this relation of trust has any legal meaning. The principle of legal expectations is where this legal meaning takes shape. The starting point was the assumption that people trust Parlia‐ ment to adopt laws in such a way that they help them to develop their own projects by making explicit which legal consequences are attached to dis‐ tinctive legal actions. The principle of legitimate expectations, then, re‐ quires Parliament to abstain from legislative action that interferes with the predicted (and desired) legal consequences. In analysing the principle of legitimate expectations from the angle of trust, this paper clarified the relationship between prediction and trust. These are separated notions, with the former being the result of a calcula‐ tion based on facts, and the latter a predisposition of confidence in a con‐ text of uncertainty. At the same time, they are intertwined, because per‐ sons act in line with these predictions if they trust that Parliament will not interfere with new legislation. When a legislative act is challenged before 42 See the case law of the European Court of Human Rights: National & Provincial Building Society et al v United Kingdom No 21319/93 (1997) para 81; R.Sz. v Hungary No. 41838/11 (2013), para 40.

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the court, and a violation of legitimate expectations is invoked, the court will mostly view the situation as one based on prediction (P), and will therefore examine the reliability of the act as a basis for predictions, rather than the trustworthiness of Parliament. However, a dissection of the legiti‐ mate expectations test clarified that aspects of a trust relation (T) also play a role in the argumentation scheme. The analysis also pointed to the mismatch between the notion of trust and the legal notion of legitimate expectations. This mismatch lies in the fact that the court sanctions persons for trusting that a Parliament will not interfere, when the legislative act was not reliable in the first place. This leaves unpunished the fact that causes legal uncertainty, namely the enact‐ ment of unreliable legislation. In analysing the legitimate expectations test, this paper clarified the reasoning of the court, but also made recom‐ mendations for further refinement of the jurisprudential test. The case law also revealed that legal certainty is a responsibility that is shared by all government bodies. This means that the notion of legitimate expectations cannot be examined at the level of Parliament alone, as took place in this paper. Follow-up research should include the relationship be‐ tween trust and legitimate expectations – and legal certainty more broadly – with regard to Parliament, the executive and courts all together. This paper made clear how such research benefits legal scholarship: by disentangling the different steps in the legitimate expectations test in terms of trust and prediction, we get more insight in the argumentation frame‐ work of the legitimate expectations test, which helps us to shape the test in such a way as to improve the balance between citizen and Parliament. A different question is how this research benefits empirical scholarship. The paper does not claim that trust in Parliament will enhance if courts refine the legitimate expectations test. Its notion of trust is a legal, and therefore an abstract one: based on an assumption that underpins representative democracy, but not actually empirically observed in a concrete case. The paper does hypothesize that trust in Parliament (or the government more broadly) will increase if Parliament, in general, is believed to produce reli‐ able legislation that allows people to plan and develop their own projects. Should this belief get empirical support, this might stimulate Parliament and other government bodies to take their legislative role more seriously.

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The Responsibility of the European Legislator and of the National Parliaments for Improving Relations between European Citizens and EU Institutions Manuela Guggeis

Summary: 1. Introduction - 2. The Responsibility of the European Institu‐ tions Involved in the Legislative Process for Improving Confidence in Legislation: European Governance - 2.1 The Interinstitutional Agreement on Better Law-Making (2003) and its Follow-Up - 2.2 From Better to Smart Regulation - 2.3 EU Regulatory Fitness - 2.4 Better Regulation for Better Results: an EU Agenda - 2.5 The New Interinstitutional Agreement on Better Law-Making (2016) - 2.6 Transparency - 2.7 Quality of Drafting - 2.8 Way Forward - 3. The Responsibility of the National Parliaments for Improving Confidence in the European Legislator - 3.1 The National Par‐ liaments and the Regulatory Framework Introduced by the Lisbon Treaty 3.2 The Informal Political Dialogue - 3.3 Protocol no. 2 to the Lisbon Treaty: the Early Warning Mechanism - 3.4 The COSAC - 3.5 Way For‐ ward - 4. Final Remarks 1. Introduction The issue of European citizens' lack of trust in the European Union (EU) and in the European Legislator1 has a long and troubled history that has been marked with regular crises.

1 A terminological clarification on the term “European Legislator” is needed: The constitutional structure of the EU does not respect the traditional separation of pow‐ ers and is characterised by the use of the “Community method”: the European Com‐ mission represents the general European interest, is independent, and has the right to put forward legislative proposals. Only the Council of Ministers (representing the Member States) and the European Parliament (representing European citizens) may adopt legislative acts. Execution of policy is entrusted to the Commission and the national authorities.

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The symptoms of this growing malaise have been the negative outcome of referendums on EU-related questions,2 the low turnout in European elections, but above all the recent rise of Euroscepticism. Generally speaking, two types of criticism are levelled at the EU. One concerns the structure and the functioning of the EU, which are re‐ sponsible for the Member States having limited sovereignty and for the di‐ minishment of the nation state; the lack of democratic legitimacy and transparency, as well as the perceived excessive bureaucracy. The other concerns the policies agreed at European level: the neoliberal economic and financial policies, which are seen as favourable to the busi‐ ness elite and hostile to the working classes, and are considered the main cause of austerity, as well as the substantive policies on immigration, cli‐ mate, rule of law etc. This is not the place for analysing the political aspect of the issue or the constitutional structure of the EU, both of which depend on high-level de‐ cisions taken by the Member States. This contribution will instead focus on how the functioning of the exist‐ ing system can alleviate the feelings of mistrust and can reconcile Euro‐ pean citizens with the European Project. In particular, it will concentrate on the initiatives taken and the contri‐ bution by the European Commission, the Council of the European Union and the European Parliament on the one side, and the national parliaments, on the other side, towards improving the participatory and representative democracy of the EU. The first part will retrace how the Commission and the European Legis‐ lator have, over the last 20 years, responded to the ʿfunctionalʾ concerns by developing a body of rules, procedures and practices that relate to the way powers are exercised in the EU (ʿEuropean Governanceʾ), with par‐ ticular emphasis on the ʿBetter Regulationʾ system.

For this reason it is not possible to limit our analysis to the European Parliament, but it has to be extended to the three major actors in the European legislative pro‐ cess: Parliament, Council and Commission. 2 Since 1972, 46 EU-related referendums have been held, of which 13 had a negative outcome (with Brexit, the rejection of the Constitutional Treaty by France and the Netherlands, and the rejection - the first time - of the Lisbon Treaty by Ireland, be‐ ing the most recent and the most mediatised).

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The second part of this contribution will examine how the national par‐ liaments exercise their prerogatives in order to watch over the balance of powers between Member States and the European Union. All the initiatives taken and the mechanisms introduced have a common thread: to shorten the distance between ʿBrusselsʾ and European citizens through better communication and a greater involvement of civil society. My assumption is that all the tools developed are producing effects and the results of these efforts are beginning to be seen. The last standard Eurobarometer Survey carried out between June and July 2019, just after the European elections, shows that ʿthe EU is seen in a more positive light that at any time over the past ten years. In particular, three key indicators have reached their highest levels since autumn 2009 (EB72): more than four in ten (44 %) Europeans now trust the EU, ten percentage points ahead of trust in national governments and parliaments; 45 % of citizens now have a positive image of the EU; and six in ten (61 %) are optimistic about its future.3 2. The Responsibility of the European Institutions Involved in the Legislative Process for Improving Confidence in Legislation: European Governance European Governance has developed and matured over the last 20 years, becoming one of the flagship projects of the European Union. Already in 2000, when the debate on the future of Europe began ahead of the Inter‐ governmental Conference, the Commission identified the reform of Euro‐ pean Governance as one of its four strategic objectives and shortly after‐ wards published a White Paper on the subject.4 The document summarised the complex relationship between European citizens and the European in‐ stitutions as follows: “Today, political leaders throughout Europe are fac‐ ing a real paradox. On the one hand, Europeans want them to find solu‐ tions to the major problems confronting our societies. On the other hand, people increasingly distrust institutions and politics or are simply not in‐ terested in them. The problem is acknowledged by national parliaments and governments alike. It is particularly acute at the level of the European Union. Many people are losing confidence in a poorly understood and 3 https://ec.europa.eu/commfrontoffice/publicopinion/. 4 COM (2001) 428 final.

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complex system to deliver the policies that they want. The Union is often seen as remote and at the same time too intrusive.” In the years which followed, this reflection led the Commission to elab‐ orate concrete responses to the crisis of confidence in the European insti‐ tutions and to adopt measures to develop the principles underpinning the governance reform: openness, participation, accountability, effectiveness, coherence.5 Inspired by the EP resolution adopted in November 2001,6 by the re‐ sults of the consultations launched on the abovementioned White Paper and the recommendations of the high-level working group chaired by Mr Mandelkern,7 in June 2002 the Commission published the Communication on “Better law-making”.8 2.1 The Interinstitutional Agreement on Better Law-Making (2003)9 and its Follow-Up The Interinstitutional Agreement on better-law making (IIA) saw the light at a time of great political ferment and desire for renewal in Europe: the Intergovernmental Convention was discussing the future of Europe and preparing the work of the Intergovernmental Conference on the revision of 5 For a more exhaustive explanation of the principles see ̓European Governance- A White Paperʾ chapter II, OJ C 287/7, 12.10.2001. 6 European Parliament resolution on the Commission White Paper on European gov‐ ernance (COM(2001) 428- C5-0454/2001- 2001/2181(COS) ) based on the Report prepared by Sylvia-Yvonne Kaufmann (Committee on Constitutional Affairs). 7 Mandelkern Report on Better Regulation, Final Report, 13 November 2001. The Report was welcomed by the Laeken European Council and annexed to the Conclu‐ sions, see https://www.consilium.europa.eu/media/20950/68827.pdf. 8 COM (2002) 275 final. The Communication introduced three other communica‐ tions establishing the ʿbasic law-making framework of the European Unionʾ. The first set out an action plan on simplifying and improving the regulatory environ‐ ment (COM (2002) 278 final). In the second communication (COM (2002) 277 fi‐ nal), the Commission acknowledged the importance of promoting a culture of dia‐ logue and participation and set out minimum consultation standards. The aim was to systematise and rationalise the consultation procedures and to make sure that each consultation was as broad as possible, its content clear, and the results public. Finally, in the third communication (COM (2002) 276 final), the Commission ex‐ plained its intention of systematically assessing all the major legislative initiatives presented in its Work Programme. 9 OJ C 321/1, 31.12.2003.

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the Treaties. While preparing for substantive institutional changes, the Union continued the process of reforming European Governance under the existing Treaties. The Seville European Council of June 2002 had invited the three insti‐ tutions concerned (Parliament, Council and Commission) to adopt an In‐ terinstitutional Agreement (IIA) by the end of the year in order to improve the quality of Community legislation and had set the conditions, including time frames, for its transposition into national law.10 In the IIA, after recalling general principles such as “democratic legiti‐ macy, subsidiarity and proportionality, and legal certainty”, the three insti‐ tutions agreed to promote “simplicity, clarity and consistency in the draft‐ ing of laws and the utmost transparency of the legislative process”. In practice the three institutions undertook to coordinate their respective legislative processes and to synchronise their work; they confirmed the importance of disseminating information on the legislative work in the broadest manner and using all technological means (including the inter‐ net). The choice of legislative instrument had to be made in accordance with the definition of the standard legal acts given by the Treaty,11 and they also pledged to avoid including too many details in “primary legisla‐ tion” and to curb the excessive use of Community implementing mea‐ sures. Co-regulation and self-regulation were considered as valid alternative methods of regulation. Member States were invited to transpose directives into national law promptly. Pre-legislative consultation had to be improved, and ex-ante and expost impact assessments were to become more frequent. The commitment to fully apply the Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Com‐ munity legislation12 was particularly important. The imperative was to up‐ date, condense and simplify legislation via recast, codification and the re‐ peal of acts. In 2005 the simplification of the regulatory environment was recog‐ nised as an essential contribution to the Lisbon strategy for achieving

10 See: https://www.consilium.europa.eu/fr/european-council/conclusions/1993-200 3/. 11 Art. 249 of the EC Treaty. 12 OJ C 73/1, 17.3.1999.

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growth and jobs in Europe and was therefore confirmed as a priority ac‐ tion for the EU.13 If initially better regulation had been seen as an expres‐ sion of good governance, the link between a good regulatory environment and economic development was to become stronger. The concrete simplification strategy for implementing the Lisbon pro‐ gramme was outlined in a Communication on that subject.14 Following broad consultations with all economic actors, a new instru‐ ment was introduced by the strategy: the “rolling programme”, i.e. a sys‐ tematically updated list which “specifies the pieces of legislation that the Commission envisaged reviewing and assessing with the view of simplify‐ ing them”.15 The objective was to eliminate rules that inhibit competitive‐ ness. In 2007 an “Action Programme for reducing Administrative Burdens in the European Union”16 was also put in place. 2.2 From Better to Smart Regulation. The financial crisis in 2008 and the consequent economic problems high‐ lighted the need to further improve the regulatory policy, i.e. “to address incomplete, ineffective, and underperforming regulatory measures and, in many cases, to do so urgently”.17 Better regulation was recognised as es‐ sential in achieving the objectives of the Europe 2020 Strategy18 for smart, sustainable and inclusive growth. The Commission's Communication on “Smart Regulation in the Euro‐ pean Union”,19 published in October 2010, having taken stock of the feed‐ back received by the European Parliament,20 the European Court of Audi‐

13 Commission Communication of March 2005 “Better Regulation for Growth and Jobs”, COM (2005) 97. 14 COM (2005) 535 final. 15 Ibidem, p. 4. 16 COM (2007) 23. 17 Communication on ʿSmart Regulation in the European Unionʾ, COM (2010) 543 final. 18 COM(2010) 2020. 19 See footnote no 17. 20 European Parliament Resolution of 9 September 2010 on better law-making (P7_TA(2010)0311).

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tors,21 the Impact Assessment Board22 and the stakeholders consulted, an‐ nounced the intention to ʿstep up a gearʾ: quality of legislation had to be managed throughout the policy's entire lifecycle;23 better regulation had to become a collective effort, shared between the European institutions and the Member States, which were primarily responsible for the implementa‐ tion of EU legislation; the voice of citizens and stakeholders had to be strengthened. 2.3 EU Regulatory Fitness In 2012, the economic and financial crisis continued to put Member States, business and citizens under strain, prompting calls to improve eco‐ nomic governance and financial regulation and to reduce the regulatory burden at EU level. The Commission responded by launching a Regulatory Fitness and Per‐ formance Programme (REFIT) with the aim of identifying “burdens, in‐ consistencies, gaps and ineffective measures”24 in existing EU legislation. In line with the “evaluate first” principle, it launched a mapping process to identify which areas had the greatest potential for simplifying rules and reducing costs. SMEs were consulted on what they considered to be the “Top Ten most burdensome EU Regulations”. The evaluation of financial programmes was strengthened.25

21 “Impact Assessments in the EU Institutions: do they support decision-making?” Special Report no 3/2010. 22 SEC (2009) 1728 ʿImpact Assessment Board Report for 2009ʾ. 23 In practice it meant: all significant proposals are based on an evaluation of benefits and costs; efforts to simplify legislation and reduce administrative burdens are merged; the Impact Assessment must also check the social impact of the proposal and the impact on Fundamental Rights; ex-post evaluation is strengthened; Mem‐ ber States are asked to produce ʿcorrelation tablesʾ in order to provide transparen‐ cy on how their national law transposes the obligations contained in EU directives; the clarity of the language setting out rights and obligations is scrutinised; a new EUR-Lex portal is developed and efforts to reduce the volume of legislation are continued. 24 COM (2012) 746 final. 25 On the increased awareness of the impact of good regulation on productivity and competitiveness see Richard Meads and Loreno Allio ‘Paving the Way to an Im‐ proved, Modern Management of Risk: The new European Commission’s Better

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2.4 Better Regulation for Better Results: an EU Agenda In 2015, the Juncker Commission renewed the commitment to the Better Regulation tools26 and put it at the heart of its Work Programme.27 It adopted an important set of key measures set out in a “roadmap and inception impact assessment” describing each new initiative and outlining the consultation strategy whereby stakeholders can submit comments dur‐ ing a period of four weeks.28 Public consultations for a period of 12 weeks29 were also introduced for delegated and implementing acts,30 while during eight weeks comments can be submitted on proposals adopt‐ ed by the Commission and forwarded to the Council and the European Parliament.31 As an outreach to the broader public, a web-based portal was created where information on new initiatives can be obtained and com‐ mented (“Have Your Say” Portal32). For the benefit of Commission staff a set of guidelines and a toolbox were adopted on how to apply better regulation in their daily work33 inte‐

26

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29 30

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Regulation Strategy’ (2015) in European Journal of Risk Regulation, 6(4), 649– 651. The Better Regulation 2015 is considered by Broughel a good example of regula‐ tory reform (James Broughel, ‘What the United States Can Learn from the Euro‐ pean Commission’s Better Regulation Initiative’ (2015), in European Journal of Risk Regulation, 6(3), 380–381. COM (2014) 910 final. https://ec.europa.eu/info/law/better-regulation/initiatives_en?facet__select__field_ brp_inve_resource_type:parents_all=743&field_brp_inve_fb_status=All&field_br p_inve_leading_service=All&topics=All&stage_type=PLANNING_WORKFLO W&feedback_status=All&type_of_act=All. https://ec.europa.eu/info/consultations_en. https://ec.europa.eu/info/law/better-regulation/initiatives?facet__select__field_brp _inve_resource_type:parents_all=744&field_brp_inve_category=All&field_brp_i nve_fb_status=All&field_brp_inve_leading_service=All%20?&topics=All&stage _type=ISC_WORKFLOW&feedback_status=All&type_of_act=All. https://ec.europa.eu/info/law/better-regulation/initiatives?facet__select__field_brp _inve_resource_type:parents_all=745&field_brp_inve_fb_status=All&field_brp_i nve_leading_service=All&topics=All&stage_type=ADOPTION_WORKFLOW& feedback_status=All&type_of_act=All. https://ec.europa.eu/info/law/better-regulation/have-your-say_en. The toolbox provides guidance on the quantification of costs and benefits accord‐ ing to Andrea Renda, ‘Introducing EU Reduction Targets on Regulatory Costs: A Feasibility Study’, CEPS policy insights, 12 July 2017.

The Responsibility of the European Legislator and of the National Parliaments

grating the standard application of the “evaluate first” principle before proposing new regulations. In an effort to systematically simplify the existing legislation, firstly an independent Regulatory Scrutiny Board (RSB) was established, composed of seven members not involved in the policy-making process and includ‐ ing three members appointed from outside the EU institutions; secondly a Refit Platform composed of two groups: a stakeholders group composed of 18 members representing the different sectors of society (business, civil society, social partners) and a government group with originally 28, now 27 high-level experts (one per Member State). Their task is to consider the opinions expressed by the general public and recommend practical followup. Eventually a new fully fledged Interinstitutional Agreement on better law-making was proposed. 2.5 The New Interinstitutional Agreement on Better Law-Making (2016) Following the Commission's proposal, a new IIA replacing the 2003 IIA was adopted. The Agreement, while confirming the general principles established in the previous text, placed an emphasis on programming and introduced the “Joint Declaration” instrument: the three institutions agree on annual in‐ terinstitutional programming with the aim of identifying the most politi‐ cally important initiatives that should receive priority treatment in the le‐ gislative process. The European Parliament and the Council promised to carry out (where necessary and appropriate) an impact assessment of the substantial amend‐ ments to the Commission's proposal. The “Common Understanding on Delegated Acts” annexed to the IIA was also very relevant from a political perspective, as was the commit‐ ment made by the Commission to not only consult Member States' experts when preparing draft delegated acts, but also to convene expert groups whenever broader expertise was needed. Article 290 TFEU had not pro‐ vided for this obligation: under that article committees of national experts were only necessary when preparing and drawing up implementing acts;

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for delegated acts Commission could act alone. Furthermore, a register of delegated acts was drawn up.34 It should be noted that the distinction between delegated and imple‐ menting acts, which was introduced by the Lisbon Treaty, had proved to be unclear at times, resulting in intense debates between the three institu‐ tions during the legislative process and in some noteworthy case-law of the Court of Justice of the European Union.35 In July 2019 the co-legisla‐ tors agreed on “Non-Binding Criteria for the application of Articles 290 and 291 of the Treaty on the Functioning of the European Union”, which provided guidance on the matter. 2.6 Transparency “If citizens are to place their trust in Europe, their legitimate concerns and expectations must be addressed. Europeans often feel that they are not suf‐ ficiently informed about the EU’s work”.36

34 https://webgate.ec.europa.eu/regdel/#/home. 35 On the principle that the essential elements of legislation must be determined in the basic act and the Commission cannot adopt rules entailing political choices falling within the responsibilities of the Union legislature, see for instance: Judg‐ ment of the Court of Justice of 5 September 2012, Parliament v Council, C-355/10, ECLI:EU:C:2012:516, paragraphs 64, 65 and 76; Judgment of the Court of 26 July 2017, Czech Republic v Commission, C-696/15 P, ECLI:EU:C:2017:595, paragraph 78; Judgment of the Court of Justice of 11 May 2017, Dyson v Commission, C-44/16 P, ECLI:EU:C:2017:357, paragraphs 61 and 62; On the definition of “act of general application” see for instance: Judgment of the General Court of 14 June 2012, Stichting Natuur en Milieu and Pesticide Ac‐ tion Network Europe v Commission, T-338/08, ECLI:EU:T:2012:300, paragraph 30; Judgment of the General Court of 7 March 2013, Bilbaína de Alquitranes and others v ECHA, T-93/10, ECLI:EU:T:2013:106, paragraphs 32 and 56; inter alia: Judgment of the Court of Justice of 18 March 2014, Commission v Parliament and Council (known as “the Biocides case”), C-427/12, ECLI:EU:C:2014:170; Judg‐ ment of the Court of Justice of 17 March 2016, Parliament v Commission (known as ‘the Connecting Europe Facility/CEF case’), C-286/14, ECLI:EU:C:2016:183; Judgment of the Court of Justice of 16 July 2015, Commission v Parliament and Council (known as “the Visa Reciprocity Mechanism case”), C-88/14, ECLI:EU:C:2015:499. 36 Europe in May 2019: Preparing for a more united, stronger and more democratic Union. COM(2019) 218 final.

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In acknowledgement of transparency being one of the pillars of good governance in a democratic system, essential in building trust in the poli‐ cy-making process and in enhancing the credibility of public institutions, Article 10(3) of Title II (“Provisions on democratic principles”) TEU ex‐ pressly highlights that “Decisions shall be taken as openly and as closely as possible to citizens”. Equally the TFEU recalls in its Article 15 the principles of an open Union decision-making process and of transparency: Institutions have to ʿconduct their work as openly as possibleʾ (Article 15(1)) and ʿcitizens have a right of access to documents of the Unionʾ (Article 15(3)). This principle is again enshrined in the Charter of Fundamental Rights of the EU, with Article 42 confirming the right of access to documents produced by the European Parliament, the Council and the Commission. Only in very few specific cases, set out in EU Regulation 1049/200137, Article 4 can public access to documents be limited. with any limitation having to be interpreted narrowly according to the case-law developed by the Court of Justice.38 The European Parliament and the Council have implemented the princi‐ ple of transparency in different ways.39

37 Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents; OJ L 145, 31.5.2001, 43. 38 On the right to have access to the opinions of the Council's Legal Service see : Joined Cases C-39/05 P and C- 52/05 P Kingdom of Sweden and Maurizio Turco v the Council; on the right to have access in principle, during the legislative proce‐ dure, to the key documents (in the form of four-column documents, with each col‐ umn containing the position of Commission, the Council, the Parliament and the final compromise respectively) produced during informal interinstitutional negoti‐ ations (“trilogues”), see: Case T-540/15, De Capitani vs. European Parliament. The need for enforcing transparency for “trilogues” is underlined by several au‐ thors: Sacha Garben, ‘An Impact Assessment of EU Better Regulation’, in Sacha Garben and Inge Govaere (eds), The EU Better Regulation Agenda: A Critical As‐ sessment (Hart 2018),217–242; Fabian Willermain, and Anca Cioriciu, ‘The Better Regulation Package: Creating better regulations, but for what kind of EU polit‐ ics ?’ (2015) in European Policy Brief, EGMONT Royal Institute for International Relations (39). 39 As far as the Commission is concerned, see the dedicated website: https://ec.europ a.eu/info/about-european-commission/service-standards-and-principles/transparen cy_en. Parliament amended its Rules of Procedure requiring that when MEPs have a leading position in the decision-making process (as rapporteurs, shadow rappor‐ teurs or committee chairs), they have the duty to publish online, and for each re‐ port, their scheduled meetings with interest representatives. Furthermore, they

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While Parliament plenaries and most of the committee meetings are held in public and are web-streamed, at the Council, only meetings where ministers examine and vote on a draft legislative act are public. Both insti‐ tutions have created public document registers which are available online, but different rules apply on the accessibility of the documents.40 The European Ombudsman has noticed that, at the Council, the preparatory legislative documents related to the activity of the Ambas‐ sadors of the Member States in the Committee of Permanent Representa‐ tives (COREPER) and of the over 150 working groups “are not, to any significant extent, being made directly and proactively accessible to the public while the process is ongoing. For the most part, it is not possible at present for EU citizens to keep themselves informed, in real time, on le‐ gislative matters being dealt with by the Council”. Another point of concern is the difficulty to identify individual Member States’ positions in documents drafted and circulated within Council preparatory bodies. This criticism has been made on a regular basis41 and has prompted the European Ombudsman to open an inquiry.42 This Body has also taken a

should only meet lobbyists that are included in the Transparency Register. In 2011 Parliament and Commission merged their respective Transparency Registers into one joint European Transparency Register. The Register contains information on lobbyists (their remit, who they represent, how are they funded). Finally EP decid‐ ed in 2019 to establish a compulsory ʿlegislative footprintʾ for rapporteurs, shadow rapporteurs and committee chairs setting out which interest representatives they consulted when working on a specific file. 40 According to Willermain and Cioriciu, the EU is one of the most transparent struc‐ tures in the world, if compared to other organisations and national entities. 41 In 2004 the Court of Justice condemned the Council for refusing to release Mem‐ ber States' positions recorded in preparatory legislative documents, Case C-280/11 P Council v. Access Info Europe (2013) para. 33. 42 In her recommendation Ms O'Reilly underlines that “Increased accountability re‐ garding the positions taken by national governments on EU legislation may reduce the ‘blame Brussels’ culture for decisions ultimately agreed by national govern‐ ments themselves. In the past, this ‘blame Brussels’ phenomenon, which misrepre‐ sents the reality of how EU legislation is agreed, has raised concerns about the democratic legitimacy of the Union. This in turn helps to promote Euroscepticism and anti-EU sentiment. Making the positions of the Member States publicly known, in a timely and accessible manner, can help reduce citizen alienation from the EU institutions. It may also help clarify that the decisions on legislation taken at EU level are ultimately taken by elected representatives and not by so-called ‘faceless bureaucrats’”.

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clear stance on the right to access documents produced during informal in‐ terinstitutional negotiations (“trilogues”) on draft legislative acts.43 2.7 Quality of Drafting Transparency in the decision-making process does not only concern the public availability of documents, but also their comprehensibility. The task of clearly conveying the legislative message, which is shared by all legis‐ lators, is particularly difficult within the EU: an ever-increasing number of Member States, profoundly different from each other in terms of their con‐ stitutional structure and legal tradition, political form, economic and geo‐ graphical situation, have to negotiate compromises (in the case of legis‐ lative files, with MEPs belonging to different political families) in sectors which have become broader with each subsequent Treaty and on matters which are often highly technical. In addition to the complexity of the deci‐ sion-making procedures, there is a further element: multilingualism. From the outset, the six founding States of the European Economic Community established that all normative acts of the Community must be drawn up in the official languages of the Members States and that each language version is equally authentic. With each new membership, the number of authentic versions has consequently increased. The Court of Justice has without exception confirmed the principle of equality of lan‐ guages and has used the various language versions for its interpretative

43 Point 21 of the Decision of the European Ombudsman setting out proposals fol‐ lowing her strategic inquiry OI/8/2015/JAS concerning the transparency of tri‐ logues, (https://www.ombudsman.europa.eu/fr/decision/en/69206) states the following: “21. The EU Treaties also emphasise the special role of national Parlia‐ ments in the adoption of EU legislation. During the Ombudsman’s public consulta‐ tion, several national Parliaments expressed concerns about the transparency of tri‐ logues. National Parliaments must be empowered to exercise democratic scrutiny of the positions their governments take in the course of the EU legislative process. Citizens of Member States can then hold their national Parliaments to account for how they carry out that important role. If this chain of accountability is broken, trust in EU law-making and trust in the EU will suffer. Sufficient transparency re‐ garding trilogue negotiations is an important element in ensuring that national Par‐ liaments can effectively exercise their role. It also underpins the very necessary democratic connection between what happens in the Member States and what hap‐ pens in the EU institutions, particularly when it comes to law-making that impacts on every EU citizen”.

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work without ever favouring one over the others. The need to guarantee that the authentic versions convey the same legal message led to the cre‐ ation of the lawyer-linguists service. At the beginning their only task was to compare the linguistic versions of each normative text, once the politi‐ cal agreement had been reached, and to verify that they complied with the rules on standard forms and presentation (the Manual of Precedents). However, the lawyer-linguists' comparisons of the various language versions was not sufficient to solve the increasingly acute problem of the complexity of European legislation, and criticisms of its quality multiplied over time. When Denmark voted against the Maastricht Treaty in the 1992 referendum, it was finally clear that public opinion had rejected a text that was considered difficult to understand. The negative result sparked a healthy process of reflection and self-criticism by the Member States and the European institutions. In 1993 the Council adopted the Resolution on the quality of drafting of Community legislation;44 in 1997 Declaration no 39 on the quality of the drafting of Community legislation was annexed to the Amsterdam Treaty. In 1998 this prompted the adoption of the Interinstitutional Agreement on drafting guidelines45 and the publication of the “Joint Practical Guide for persons involved in the drafting of legislation”,46 which was produced by the lawyer-linguists of the three institutions, As mentioned above, quality of drafting has become an essential ele‐ ment of the Commission's Better Legislation Programme and is quoted in both IIAs on Better- Law-making.47

44 1993 OJ C166/1. 45 1999 OJ C73/1. Recitals 1 and 2 of the IIA provide that: “(1) clear, simple and precise drafting of Community legislative acts is essential if they are to be trans‐ parent and readily understandable by the public and economic operators. It is also a prerequisite for the proper implementation and uniform application of Communi‐ ty legislation in the Member States; (2) according to the case-law of the Court of Justice, the principle of legal certainty, which is part of the Community legal order, requires that Community legislation must be clear and precise and its application foreseeable by individuals. That requirement must be observed all the more strictly in the case of an act liable to have financial consequences and imposing obliga‐ tions on individuals in order that those concerned may know precisely the extent of the obligations which it imposes on them”. 46 The Guide, which has been translated into all EU official languages, assists EU le‐ gal drafters by providing explanations and concrete examples. 47 On the importance of the scrutiny of the drafting of their legislation see the 2003 Agreement on better law-making, the Joint Declaration on practical arrangements

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As a result of the increased awareness, the principle of the timely revi‐ sion of legal drafts was established: the Commission legal revisers are in‐ volved in the preparation of proposals and the EP and Council lawyer-lin‐ guists48 accompany the legislator during the negotiations. Both suggest editorial improvements and verify that the texts contain no ambiguities that would risk causing divergences in the various language versions.49 In‐ ter-institutional peer-to-peer training has now become an integral part of the professional development for lawyer-linguists, and this training is also given to administrators, future Council presidencies and MEPs' assistants. 2.8 Way Forward The measures on Better Regulation and the constant effort to improve their implementation have produced results: the 2018 Regulatory Policy Outlook ranked the European Union's Better Regulation system and the Commission's regulatory policy as one of the best amongst its member countries.50 The consultations held by the Commission while preparing the stocktaking exercise on the “Better Regulation” policy confirm the generally positive assessment given by all stakeholders, especially by business and professionals,51 but also the need to publicise the system more widely. All consultation initiatives and the opportunity to give feedback, from the very beginning of the legislative process up to the end of the policy's

48

49

50 51

for the codecision procedure and the Rules of Procedure of both the European Par‐ liament and the Council. The Commission's legal revisers and the Council's lawyer-linguists (Directorate for the Quality of Legislation) belong to their respective Legal Services; the Par‐ liament's lawyer-linguists are part of the General Secretariat (Directorate for Le‐ gislative Acts). For a more detailed description of the working arrangements see Manuela Guggeis and William Robinson, ‘Corevision: Legal-linguistic Revision in the European Union Codecision Process’, in Cornelis J.W. Baaij, The Role of Legal Translation in Legal Harmonisation (Kluwer Law International 2012) 51-81. https://read.oecd-ilibrary.org/governance/oecd-regulatory-policy-outlook-2018_97 89264303072-en#page12. Taking stock of the Commission's Better Regulation Agenda, COM (2019) 178.

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lifecycle, are considered to be extremely useful.52 The evidence-based pol‐ icy making, the independent quality control,53 exercised by the Regulatory Scrutiny Board and the well-trained staff54 are considered to be of a good standard. Finally, the simplification and burden reduction measures taken in accordance with the REFIT programme are also highly appreciated. According to the feedback received, there is a need for greater trans‐ parency of the legislative process, especially in relation to the impact as‐ sessment exercise and during the “trilogue” stage; deadlines for consulta‐ tions should be longer and the forms more clearly drafted; impact assess‐ ments should be carried out for all proposals, and any “biased rhetoric” pointing to the preferred option in the assessment must be avoided.

52 In this sense, see for instance: Peter Chase, and Adam Schlosser, ‘Better regulation - An ongoing journey’ (2015) in European Journal of Risk Regulation, 6(3), 378– 379 and Bernardo Delogu, Risk Analysis and Governance in EU Policy Making and Regulation. An Introductory Guide’ (Springer 2016) 207–250. This approach improves transparency and therefore confidence in legislation: Alberto Alemanno, ‘Better Regulation: Holding Martin Selmayr Accountable’ (2019) in VerfBlog, 2018.9.11, HEC Paris Research Paper No. LAW-2018-1303; Andrea Renda, ‘Too good to be true? A quick assessment of the European Commission’s new Better Regulation Package’ (2015) CEPS Special Report (108). 53 Several authors and the European Court of Auditors have underlined this positive aspect: Peter Chase, and Adam Schlosser, ‘Better regulation - An ongoing jour‐ ney’ cit., Alberto Alemanno, ‘Better Regulation: Holding Martin Selmayr Ac‐ countable’ cit.; European Cpurt of Auditors, ‘Ex-post review of EU legislation: a well-established system, but incomplete’, Special Report of the European Court of Auditors 6/2018 (16). Claudio Maria Radaelli, ‘Halfway Through the Better Regu‐ lation Strategy of the Juncker Commission: What Does the Evidence Say?’ (2018) in JCMS: Journal of Common Market Studies, 56, 85–95; the number of negative opinions issued by the RSB is also considered as a sign of independence, although the fact that the RSB 's secretariat is composed of EC's staff is considered as a risk ( see ECA, ibidem). 54 For a critical assessment on the availability of EC staff with the right competences, given the increased workload, see Andrea Renda (2016) From impact assessment to the policy cycle: drawing lessons from the EU’s Better Regulation Agenda, University of Calgary, The School of Public Policy, SPP technical paper.

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3. The Responsibility of the National Parliaments for Improving Confidence in the European Legislator The question of the role of national parliaments in the EU system is close‐ ly connected with the issue of the EU's democratic legitimacy. In the sev‐ enties the discussion on how to increase the EU's democratic representa‐ tiveness mainly concerned the role of the European Parliament and its composition: in 1979 the European Community moved from indirect elec‐ tions (MEPs were national deputies, delegated by national parliaments) to the direct election of European parliamentarians. Later the issue of “democracy” focused on the European Parliament's prerogatives and on the equal role between the European Parliament and the Council of Ministers: the EP's competences and its influence in the de‐ cision-making process have been increased from one treaty to the next to the point where the EP enjoys a position of power that can balance that of the Commission and the Council. This has certainly reduced, but not eliminated, the perceived problem of the EU's democratic deficit.55 Seen from the perspective of national parliaments, the issue has only shifted. In fact, one of the consequences of the introduction of direct elec‐ tions to the European Parliament was the marginalisation of the national parliaments: as from 1979, the year of the first direct elections, the only possibility national parliaments have had to influence European politics has been through control of their government, whose members participate in the Council of Ministers and the European Council. This control is however exercised differently in each Member State and varies according to specific national constitutional requirements.56 The progressive increase

55 The judgment of 30 June 2009 of the German Constitutional Court on the compat‐ ibility of the Lisbon Treaty with the German Constitution can be considered as the most complete analysis of the issue of the democratic legitimacy of the EU. The Court thoroughly examines the Lisbon Treaty and the resulting structure and iden‐ tifies numerous democratic deficits, among which the most important are the nonrespect of the “one person, one vote” principle and the very different weight the votes of the citizens have in elections to the European Parliament. 56 For a detailed description of the different procedures, see the 27th COSAC bi-an‐ nual report. For an empirical classification of the different forms of parliamentary scrutiny of their governments carried out by the national parliaments, ranging from a “limited control” (Hungary, Luxembourg, Romania) to a ʿFull Europeanisationʾ (Denmark), see Claudia Hefftler et al.,ʿNational Parliaments: The Emerging Con‐

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in the number of competences attributed to the Union has resulted in a par‐ allel and constant erosion of the competences of the national parliaments, which have felt deprived and have reacted accordingly. As early as 1989 the creation of the “COSAC” (Conférence des Or‐ ganes Spécialisés dans les Affaires Communautaires and Européennes des Parlaments de l'Union Européenne) constituted an attempt by the national parliaments to organise themselves and coordinate in order to make their voices heard. It is thanks to this constant pressure that the role of the national parlia‐ ments has been progressively strengthened since the Maastricht Treaty.57 Furthermore, the “fact that the European Parliament did not fully suc‐ ceed in clearly and incontrovertibly establishing itself as providing the so‐ lution for the democratic legitimacy which the EU needs, was one of the reasons why the Lisbon Treaty gave a role to national parliaments in the EU legislative process”.58 3.1 The National Parliaments and the Regulatory Framework Introduced by the Lisbon Treaty The current regulatory framework is set out in Article 12 TEU, as intro‐ duced by the Lisbon Treaty, and in the Protocols no. 1 (replacing the 1997 Protocol) and no. 2, which regulate respectively the role of national parlia‐ ments in the EU and the application of the principles of subsidiarity and proportionality.

trol over the European Councilʾ, Notre Europe Policy Paper 38 (29 March 2013); and Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (third edition, Cambridge University Press 2014) 129. 57 In the Declaration on the role of national parliaments in the EU, annexed to the Final Act of the Maastricht IGC, the exchange of information between national parliaments and the EP and the timely transmission by the governments of the le‐ gislative drafts were encouraged. According to the 1997 Protocol on the role of the national parliaments, annexed to the Amsterdam Treaty, a period of six weeks had to elapse between the time specific acts were made available to the EP and the Council in all languages and the time the acts were put on the Council's agenda for adoption, thus allowing the governments to inform their respective parliaments. 58 Jean Claude Piris, The Lisbon Treaty, A Legal and Political Analysis, (Cambridge University Press 2012), 123.

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Article 12 TEU establishes how national parliaments can ʿcontribute actively to the good functioning of the Unionʾ and grants them the explicit right to be directly informed by the EU institutions on all EU activities (Article 12(a) TEU and Protocol no.1), the right of control over respect of the principle of subsidiarity (Article 12(b) and Protocol no. 2) and, accord‐ ing to the specific procedures, to express opposition to the adoption of the legislative acts that are not considered as complying with the principle. Another right conferred to national parliaments is the one to be notified of each application for accession to the EU (Article 49 TEU). Apart from these specific rights, the Lisbon Treaty gives national par‐ liaments a role in the evaluation and monitoring mechanism in the area of freedom, justice and security (Articles 70, 85, 88 TFEU), in the revision procedures of the Treaties (Article 48 TEU) and in the inter-parliamentary cooperation between national parliaments and with the European Parlia‐ ment (Protocol no. 1). In the following, I will examine the main elements, in particular: the in‐ formal political dialogue, the Early Warning Mechanism and the COSAC activity. 3.2 The Informal Political Dialogue First of all, national parliaments contribute to the proper functioning of the EU through political dialogue. The European institutions have a duty of information59 towards the national parliaments. Protocol no. 1 on the role of national parliaments in the EU encourages the involvement of the na‐ tional parliaments in an informal political dialogue on all activities of the European Union and aims to enhance their ability to express their views not only on draft legislative acts, but on any other matters of interest for them (including areas falling under the exclusive competence of the EU and non-legislative documents). In practice the Commission forwards to the national parliaments, at the same time as to the European Parliament and the Council, all consultation documents (green papers, white papers and communications), the annual legislative programme and any other instrument of legislative planning or policy.

59 Article 12(a) TEU.

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All draft legislative acts are sent to the national parliaments directly (and not via their respective governments).60 Information documents (agendas for and outcomes of meetings of the Council, minutes of meetings where the Council is deliberating on draft legislative acts, the Court of Auditors' annual report) are also forwarded directly to the national parliaments. In 2018 national parliaments made use of the possibility of initiating an informal dialogue by sending 259 contributions to the European Parlia‐ ment61 and 218 to the Commission62 concerning non-legislative initiatives such as communications, or reacting to ongoing debates at European level. 3.3 Protocol no. 2 to the Lisbon Treaty: the Early Warning Mechanism According to the principle of subsidiarity (Article 5(3) TEU), “in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be suffi‐ ciently achieved by the Member States”. National parliaments have to en‐ sure compliance with the principle of the Early Warning Mechanism (EWM) as set out in Protocol no. 2 to the Lisbon Treaty. When introduced,

60 Already in 2006 the Barroso Commission took the initiative of sending informa‐ tion directly to national parliaments on legislative proposals (see Commission Communication, “A Citizens' Agenda - Delivering results for Europe”, COM(2006) 211). 61 Extract from the “Relations between the European Parliament and EU National Parliaments, Annual Report 2018”. Under “Informal Political Dialogue” the EP in‐ cludes “contributions by EU National Parliaments on legislative files falling under the exclusive competence of the EU as well as on non-legislative documents, for example relating to ongoing debates at European level, Commission Green/White Papers or communications from the Commission” (ibidem). The figure represents an increase of 30 % in comparison to 2017 when there were 199 contributions. The ʿfour most active National Chamber/Parliaments were the Romanian Chamber of Deputies (41), the Portuguese Assembly of the Republic (40), the Czech Cham‐ ber (37) and the Czech Senate (27). The number of submissions received from EU national parliaments since 2009 in the framework of the Informal Political Dia‐ logue is 230 9' (ibidem). 62 The Commission includes in these figures opinions on proposals not subject to subsidiarity control or on other Commission initiatives and own-initiative opinions (COM (2019) 333 final).

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the EWM was considered to be one of the most important innovations of the Lisbon Treaty and a decisive step towards democratising the EU. According to the EWM, national parliaments have an eight-week period (between the time a draft legislative act has been made available to them in all official languages and the date on which it is put on a provisional agenda of the Council for adoption) to review the draft and, in the case of acts which do not fall under the exclusive competence of the EU, to “send to the Presidents of the European Parliament, the Council and the Com‐ mission, a reasoned opinion stating why it considers that the draft does not comply with the principle of subsidiarity”.63 If the reasoned opinions represent at least one third of the votes allocat‐ ed to the national parliaments, the draft must be reviewed (the “yellow card”). The institution from which the draft originates may decide to maintain, amend or withdraw the proposal, and justifies its choice. In the ordinary legislative procedure, if the reasoned opinions represent at least a simple majority of the votes, the Commission has to review the proposal. If it decides to maintain it, the matter is referred to the European Parliament and the Council. The two institutions may reject the proposal if 55 % of the members of the Council or the majority of votes cast in the EP are in favour (ʿorange cardʾ). To date, the yellow card has been triggered only three times64 while the orange card has never been activated. In a enquiry carried out by the COSAC Secretariat in 2017 the national parliaments expressed a generally positive opinion on the control mecha‐ nism of the subsidiarity principle. The only weaknesses identified related “to time frames and the definition of subsidiarity, thresholds and the im‐

63 According to the 27th biannual report of the COSAC, “In cases of subsidiarity and proportionality checks in the context of Protocol no. 2 TFEU, slightly less than half of the responding Parliaments/Chambers (17 out of 37) always received the Government’s position on the draft legislative act within the 8-week deadline, whereas only one Parliament/Chamber reported that it rarely or never received such position. Less than half of the respondents stated that they received such in‐ formation upon request and five said they sometimes did”. 64 The three yellow cards were used against: (1) the Regulation concerning the exer‐ cise of the right to take collective action within the context of the freedom of es‐ tablishment and the freedom to provide services (2012); (2) the Regulation on the establishment of the European Public Prosecutor's Office (2013); (3) the Directive on the posting of workers (2016).

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pact on the legislative process”.65 Some parliaments put forward the “idea of introducing a “green card” and of including the principle of proportion‐ ality and the legal base in the scrutiny process”.66 Since 2013 the number of reasoned opinions has dropped significantly. In 2018 the Commission received 37 reasoned opinions concerning 22 proposals and the EP received 46 reasoned opinions.67 One possible reason for the decrease could be that, thanks to the strengthened Better Regulation Agenda, legislative proposals generally re‐ spect the principle of subsidiarity: they are only presented if their added value is clear and the existing policy frameworks have been thoroughly evaluated. Subsidiarity control and integration of the principle at all stages of poli‐ cy-making has also become an ongoing priority for the European Parlia‐ ment and the Council. The Commission's commitment in this regard has been constant: in 2017 the President of the Commission Jean-Claude Juncker announced the creation of a Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”, chaired by the First Vice-President Frans Timmermans. In its final report68 the Task Force recommended a new way of working, i.e. “to make better laws based on a common understanding of subsidiari‐ ty and proportionality” and presented a series of follow-up actions, such as the production of aggregated replies by the Commission: in the event that the number of reasoned opinions was greater than four but below the threshold required to trigger a “yellow card”, the Commission's aggregate response would give the parliaments' concern greater visibility and send a signal to the co-legislators.69 Apart from the reasoned opinions, national parliaments are very active in sending general opinions or contributions on

65 For a summary of all answers, see the 29th Bi-annual COSAC Report, ʿProtocol No 2 of the TFEU - shortcomings and possible remediesʾ. 66 Ibid. 67 The most active chamber was the Swedish Riksdag. It should also be noted that, for statistical purposes, EP and Commission count the reasoned opinions concern‐ ing more than one Commission proposal in different ways (the Commission counts the opinion once only, while the EP counts one opinion for each proposal). 68 https://ec.europa.eu/commission/priorities/democratic-change/better-regulation/tas k-force-subsidiarity-proportionality-and-doing-less-more-efficiently_en. 69 On 15 and 16 November 2018, the Commission’s approach was explained in a conference on “Subsidiarity as a building principle of the European Union” organ‐ ised in Bregenz by the Austrian Presidency.

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proposals subject to subsidiarity control: in 2018 the Commission received 314 opinions and the EP 427 contributions. This reflects the fact that national parliaments are making more use of the possibility provided by Protocol no. 2 to give input and state their pos‐ ition on the substance of the legislative proposal than on subsidiarity. They generally wish to participate in the European decision-making process in addition to exercising control over their government's positions. There are, however, substantial differences between the national parlia‐ ments: some are extremely active (as far as opinions sent to the Commis‐ sion are concerned: 10 Chambers were very active70) while others were less so (10 Chambers issued no opinions).71 3.4 The COSAC The COSAC (Conference of Parliamentary Committees for Union Affairs) was established in 1989 with the aim of strengthening the role of national parliaments by bringing together their Committees on European Affairs. It was formally recognised as the only inter-parliamentary forum in the “Protocol on the Role of National Parliaments in the European Union” to the Treaty of Amsterdam. According to Article 10 of the new Protocol (No 1) on the Role of Na‐ tional Parliaments in the European Union introduced by the Treaty of Lis‐ bon, COSAC “may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission. The Conference shall in addition promote the exchange of information and best practice between national Parliaments and the European Parliament, including their special committees. It may also organise interparliamen‐ tary conferences on specific topics, in particular to debate matters of com‐ mon foreign and security policy, including common security and defence policy. Contributions from the Conference shall not bind national Parlia‐ ments and shall not prejudge their positions”. The Parliament of the Member State holding the six-month rotating Council Presidency leads the work of the COSAC assisted by a President‐

70 Portuguese Assembleia da Republica, Czech Senat and Poslaneckà snèmovna, Spanish Cortes Generales, German Bundesrat, Romanian Camera Deputatilor and Sénat, Italian Senato della Repubblica, Swedish Riksdag, COM (2019) 333 final. 71 See COM (2019) 333 final.

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ial Troika (of which the EP is a permanent member), and supported by a small Secretariat hosted by the EP.72 The bi-annual COSAC meetings, which bring together representatives from 41 national Parliaments/Chambers in the 28 Member States,73 take place in the capital of the country holding the Presidency of the Council of the European Union. COSAC plays a pivotal role in the active participation of national par‐ liaments in the debates on EU affairs. In accordance with the Protocol re‐ garding the role of national parliaments, COSAC may bring whichever contribution it feels appropriate to the attention of the institutions of the European Union. Even if COSAC is not a decision-making body and its contributions do not bind national parliaments in any way nor affect their positions, it has an (informal) consultative function and is conducive to parliamentary coordination. Its debates target important topics concerning European policy. In 2018 for instance, the parliaments were able to ex‐ press their position on the Multiannual Financial Framework, the Western Balkans Policy, etc. 3.5 Way Forward The new regulatory framework has confirmed national parliaments as im‐ portant actors in the functioning of the EU. The fact that the parliaments are directly informed of EU activities gives them greater opportunities for controlling how their governments act in the EU decisional process. There are however some observations to be made: The eight-week period that must elapse between the transmission of the EU legislative draft to the national parliaments and the act being put on the EU Council's agenda for adoption may prove to be insufficient for some national parliaments. On the one hand, their timely and effective re‐ action depends on how the internal procedures of the European Affairs

72 For a detailed description of all activities and the relations between the European Parliament and EU national parliaments see the 2018 EP Report on: http://www.ep gencms.europarl.europa.eu/cmsdata/upload/d22b5f20-6f06-4a32-968b-acc37bf13c 66/RAPORT_2018.pdf. 73 Of the 28 Member States of the European Union, 15 have a unicameral Parliament and 13 have a bicameral Parliament.

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Committee/s and of the Chamber/s of each national Parliament work. The constitutional structure of the Member States may also play a role: Federal States such as Germany and Austria have to collect and coordinate the re‐ sponse of their “Laender” before issuing a “national” position. On the other hand, putting the legislative draft on the Council agenda for adoption is the final stage in the procedure. Prior to this, the draft has been thoroughly discussed in the Council's working groups and examined by the national Ambassadors in COREPER, acting according to their gov‐ ernment's instructions. The national parliaments should therefore be able to intervene well before the final adoption of the draft. For this reason in 2018 a suspension of the eight-week time-limit dur‐ ing the Christmas/New Year holiday period was introduced. Furthermore, as seen in the section on transparency, several national parliaments have expressed their wish to be better informed on the pos‐ itions their governments take in the course of the EU legislative process and to have access to the documents produced in the “trilogues”. The control the national parliaments exercise on how their governments act at European level varies according to the different Member States. While Nordic parliaments, such as the Danish Folketing, the Swedish Riksdag or the Finnish Eduskunta have a longstanding tradition of influ‐ encing their governments and are very active in exercising this power, oth‐ er parliaments only stepped up their influence in the wake of the constitu‐ tional amendments which followed the ratification of the Lisbon Treaty. This was the case for the German, French and Portuguese parliaments. Whether other national parliaments follow this example will therefore depend on the balance between their executive and legislative powers and the internal political culture of each Member State. Finally, the cooperation between the national parliaments and the coor‐ dination of their positions via the COSAC will also contribute to their em‐ powerment. 4. Final Remarks One of the main reasons for the strained relationship between Europe and Europeans can be found in the singular structure of the EU. The European Union only has the competences which the Member States have conferred on it. The justification for this substantive and progressive limitation of national sovereignty resides in the notion of added European value: in 283

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some sectors Member States can face global challenges more effectively together than separately. But this justification is not self-evident. Without a constant effort to communicate clearly what the EU does and why, to in‐ volve all stakeholders in the legislative process, and to deliver effective and proportionate responses to the problems in a timely manner, the dis‐ tance between Brussels and civil society will inevitably increase.

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Trust as a Cornerstone of Enacted Law Wim Voermans

Summary: 1. Man-Made Law – 2. Why Do We Obey? - 3. Trusting Strangers – 4. Law as a Form of Artificial Trust – 5. How Does Trust Work? - 6. Imagined World of the Law – 7. Trust as the X-Factor 1. Man-Made Law Most law nowadays is predominantly elaborated by way of legislation. This does not merely hold true for civil law countries (‘continental sys‐ tems’) but for common law countries as well. The bulk of law is manmade, created by and expressed through legislation. Even though the evi‐ dence for this judging from the law books is overwhelming, to many this feels uneasy. Something as important as law predominantly handled by a bunch of amateurs in a political arena. The Australian political philoso‐ pher Tom Campbell, for instance, notes that 'for many lawyers […] the very idea that law is a manifestation or type of politics seems almost of‐ fensive’.1 This is not a modern aversion, but an enduring attitude that has existed ever since classical antiquity. We like to think of fundamental and legal rules as a form of higher wisdom, either of divine origin or passed down over generations from wise ancestors. Something from beyond the here and now. This kind of thinking is still a cornerstone of modern com‐ mon law legal systems, as found in the United Kingdom and partly in countries such as Australia, India and the United States.2 Law is mainly derived from case law in this system or, at least, in theory. It is under‐ pinned by the idea is that law arises from precedent – collections of judi‐ cial decisions. Layer upon layer of this literally ‘common law’ arises from

1 Tom Campbell, ‘Legal Studies’, in Robert E. Goodin, Philip Pettit and Thomas Pogge (eds), A Companion to Contemporary Political Philosophy (Wiley Blackwell 2012) 228. 2 Diarmuid F. O'Scannlain, ‘Rediscovering the Common Law’ (2004) in Notre Dame Law Review, 79(2), 755, especially 757-759 and 762-763.

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tradition, custom and precedent, giving expression to a society's 'latent' wisdom.3 Passed down from generation to generation, the law stems from a society's history and is the expression of the wisdom of centuries. It is a far cry from modern ‘continental’ legal systems, in which fundamental rules and legal rules are made in the present by living people and legisla‐ tion is the main source of law. It does not feel right to believers in 'wise' law, like most legal scholar in common law countries, even if these days most law in these jurisdictions is also promulgated in man-made laws.4 Many people to this day still find it hard to stomach the idea that the law is a product of human creation. The American philosopher of law Jeremy Waldron is astounded by the widespread resistance to conceiving law as the work of humans. He considers this especially so in Common Law jurisdictions: […] the sentiment widespread among twentieth-century legal scholars that the character of Common Law systems is changing for the worse as legislation crowds out the more endogenous and traditional bases of legal growth. Statutes, we are told, ‘have no roots’ and are often ‘hastily and inconsiderate‐ ly adopted’. [...] ‘Choking on Statutes’ – the title of the first chapter of Guido Calabresi's book on courts and legislation – is an apt motto for this sort of at‐ titude. [...] Among some Common Law jurists, this attitude crystallizes in a curious, almost snobbish reluctance to regard legislation as a form of law at all.5

But law, like the constitutional rules which bring it to life, has of course always been a thoroughly human product. It is the product of human hands, passed on from person to person, without divine intervention or prerequisite maturation. Legal rules and law books do not need any partic‐ ular preconditioned fertile ground to work, other than the collective con‐ viction that the imagined world of the constitutional order is real and true (see section V below) and the legal system and law based on it ‘binds’ as law. In other words, that its rules and orders must be obeyed and merit ob‐

3 Adrian Vermeule, ‘Common Law Constitutionalism and the Limits of Reason’ (2007) in Columbia Law Review, 107(6), 1482. 4 Ugo Mattei and Luca G. Pes, ‘Civil Law and Common Law: Toward Conver‐ gence?’ in Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington (eds), The Oxford handbook of law and politics (Oxford University Press 2008). 5 Jeremy Waldron, The Dignity of Legislation (Cambridge University Press 1999) 9.

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servance. Nothing more is required: no demos, state, or other condition.6 The conviction, the collective belief, is decisive. 2. Why Do We Obey? That makes legislation, as the predominant vehicle of law, a truly fascinat‐ ing phenomenon. Even though we are mostly preoccupied with the question why people do not obey the law and how law should be enforced it is actually more interesting to ponder the question why people do, in droves and overwhelmingly do obey the law? A host of theories have at‐ tempted to solve this riddle.7 According to one line of thinking – one that is quite common in present-day administrative and regulatory practice – the answer to these questions is quite straightforward. We obey because government/the administration forces us to. Compliance hinges on admin‐ istrative action, in the administrative-actor theory. The administration does not always forcefully makes us obey the law. Sometimes it just re‐ minds us of its existence by signalling the enactment process to the public, by communicating the rules and other mild administrative efforts to ensure voluntary or ‘spontaneous’ compliance with these rules. If compliance does not ensue, the administration, as the central actor, needs to step up its efforts, for instance by gathering more information on compliance and non-compliance (monitoring & inspection) and aptly react to nonconfor‐ mity (enforcement, sanctioning).8 The constructivist theory takes a differ‐ ent view to the question as to why we obey the law. The main driver for

6 Saskia Sassen seems to assume in general terms that the principle of territoriality is a condition for the functioning of a constitution. Cf. Saskia Sassen, Territory, Au‐ thority, Rights: From Medieval to Global Assemblages (Princeton University Press 2008). 7 See Wim Voermans, ‘Motive-based Enforcement’, in Luzius Mader and Sergey Kabyshev (eds), Regulatory Reforms: Implementation and Compliance. Proceed‐ ings of the Tenth Congress of the International Association of Legislation (IAL) in Veliky Novgorod, June 28th-29th, 2012 (International Association of Legislation (IAL) nr. 17, Nomos 2014) 41-61; Cf. Tom R. Tyler, Why do People Obey the Law? (Princeton University Press 2006); Paul Robinson & John M Darley, ‘The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best’ (2003) in Georgetown Law Journal, 91(5), 949-1002. 8 There are two main perspectives as regards the proper compliance route for the ad‐ ministration to take within administrative-action theory. The first is the rational perspective (believing that regulatory addressees are rational actors that weigh cost

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compliance, according to this view, is not an external trigger (e.g. adminis‐ trative action), but rather more internal ones, like the socialization or inter‐ nalization of rules by the addressees.9 Internalization, as it were. Social‐ ization and internationalization of rules, in turn, are predominantly brought about by persuasion and/or persuasive appeals to inner morality. If regulators succeed in convincing addressees that rules are right, good, nec‐ essary, legitimate or whatever successful appeal can be made to the inner motivation or belief system of the addressee and spontaneous compliance might ensue. And if we may believe the evidence our own eyes bring us, spontaneous compliance is the general effect in established liberal democ‐ racies – at least in absolute terms - whatever persistent non-compliance problems these political systems face. However impractical it may prove for everyday use, constructivist theo‐ ry reminds us of what the law actually is: it is a ‘belief’ system. We abide by the law because we believe we have to and/or other members of our societies, or state actors remind us we ought to.10 Legislation/regulation

and benefits and believing therefore that only a coercive strategy of monitoring and sanctioning will induce compliance, hence also known as the enforcement school). The second perspective is the management perspective, which also per‐ ceives regulatory addressees as rational beings, but recognizing that non- compli‐ ance is not always per se the result of deliberate defiance of the regulation. It also occurs, as a result of capacity limitations on the part of the addressee, as a result of ambiguity of rules, or involuntary and inadvertently for a number of other reasons. Non-compliant behaviour therefore does not always need to be ‘cured’, remedied or followed by administrative enforcement or sanctions, but may be secured by re‐ medial forms of administrative action (information, administrative assistance, le‐ gislative simplification, etc.) According to both perspectives though, compliance is largely dependent on administrative action. In the constructivist perspective – on the other hand – compliance is dependent on the way regulatory norms tie in with or align with the beliefs of the addressee. Cf. Jeffrey T. Checkel., ‘Why Comply? Social Learning and European Identity Change’ (2001) in International Organiza‐ tion, 55(3), 555; Jonas Tallberg, ‘Paths to Compliance: Enforcement, Manage‐ ment, and the European Union’ (2002) in International Organization, 56, 3, 609; Wim Voermans, ‘Motive-based Enforcement’ cit., 41-61. 9 Kal Raustiala and Anne-Marie Slaughter, ‘International Law, International Rela‐ tions and Compliance’ in Walter Carlsnaes, Thomas Risse and Beth A. Simmons (eds), Handbook of International Relations (Sage 2002) 540. 10 These beliefs in turn are very important, because they are legitimate rules and gov‐ ernment action is required to enforce them. If rules and government action is per‐ ceived as legitimate (in terms of effectiveness and fairness) the more it will pos‐

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uses the law as its vehicle to appeal to the beliefs of its addressees.11 The belief in the law as society’s fundamental mutual contract. We expect our fellow citizens to comply with the law and the administration to act in the case of non-compliance, Compliance fosters the basic trust people can have in the ‘abstract concept’ we call the law, it thereby reinforces the au‐ thority of the law and thereby its overall legitimacy. But the belief in the law expressed in legislation does even more than that: it allows for peace‐ ful and efficient large scale cooperation of human societies – it ‘cements’ a society of basically strangers and eanbels us to overcome our, neurobio‐ logical restrictions, our innate distrust in strangers. 3. Trusting Strangers The Leap over Dunbar's number Distrusting strangers does not sit very comfortable with, even sounds a bit politically incorrect, to our ears reared in open and free societies. We have learned since our childhoods that it is good to trust people even if we do not know them. That it is parochial and narrow minded to distrust others as a default and that prejudice and discrimination are bad things. That does not mean we are raised to be gullible but that we appreciate open minded‐ ness. That is not, however, our natural set-up. During our evolution our brains were initially – and still are in some respects – rather more wired to distrust strangers. As modern humans began to develop about 200,000 years ago, we lived as hunter-gatherers in small groups of about 20 to 50 people, who were mostly family members. That was approximately the natural maximum size. A group with more than 50 members becomes im‐ mobile; and it is difficult to maintain any kind of specialisation (hunting, cooking, foraging, childrearing) with less than 20 members. A semisedentary existence, as many groups lived between 15,000 and 9500

sess the potential to elicit compliance without excessive monitoring or punitive ac‐ tion. See Margaret Levi and Audrey Sacks, ‘Legitimating beliefs: Sources and in‐ dicators’ (2009) in Regulation & Governance, 3, 4, 311. 11 David Beetham, The Legitimation of Power (2nd edn., Palgrave Macmillan 2013) 69-70 ff. and 91.

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BCE,12 enables somewhat larger groups – for example, in a loose coalition of intermittently cooperating (familial) groups. This gradual aggregation of groups could have had various causes: exchanging goods, 'dating', inter‐ marriage, sheltering against the elements together,13 but above all defend‐ ing and distributing stocks and mutual defence.14 We call these new en‐ larged groups ‘tribes'. Initially relatively small and bound by family ties (clans), these tribes grew steadily from 12,000 BCE. This was partly due to a chain reaction: a larger tribe is better able to specialise and also has numerical superiority in conflicts with other tribes. To defend yourself from an attacking or raiding tribe you needed your own tribe, preferably bigger and better organised than the attacker. Failing to do so probably spelled doom. In that time strangers were certainly not given the benefit of the doubt, as possible new best friends. We know from historical and con‐ temporary anthropological research that tribes are usually hostile towards one another – and when it comes down to it, murderously so.15 Members not only protect each other, but also claim and protect a specific territory16 – they are territorial – and have little time for strangers. The emergence of tribes may not be much more than a side effect of the Neolithic Revolu‐ tion, but it turned the whole way humans live together on its head: it liter‐ ally short circuited our minds. In the hundreds of thousands of years of our hunter-gatherer existence, our brain developed the qualities required by an admittedly 'smart' but social animal to survive in a group of 20 to 50 fami‐ ly members. In these hunter-gatherer groups everyone was in principle

12 Semi-nomadic groups have existed ever since – even today. Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies (first published 1997, W.W. Nor‐ ton 2005) 106. 13 As many as 400 to 500 people at the same time used to live in the Palaeolithic caves that were discovered in Southern France. 14 See Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies cit., 90. 15 Jared Diamond demonstrates how territorial hunter-gatherers are and their hostile reaction to neighbours and strangers. Jared Diamond, The World Until Yesterday (Penguin Books 2012) Chapter 1 (Friends, Enemies, Strangers, and Traders). Steven Pinker also points out that prehistoric nomadic groups and tribes were ag‐ gressive and violent, in contrast to the idyllic ideas we sometimes have of them now. If anything, millenniums of civilisation have made us more peaceful. There has been a staggering decline in the rates of violent deaths between prehistoric times and the present. Steven Pinker, The Better Angels of Our Nature: Why Vio‐ lence Has Declined. (Penguin Books 2011) 1-4 and 36-58. 16 Jared Diamond, The World Until Yesterday cit., 37-76.

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equal, relationships were egalitarian, individual property did not exist (even though they were hardly hippie communes), collective protection (or flight) was simple to organise, and existential risks could be reason‐ ably assessed. The potentially life-threatening risk of over-specialisation and excessive altruism could be obviated by the increasingly effective – that is, smart – exchange of information about each other's reliability through language, mental representation and (symbolic) communication. In the same way evolution did not equip our bodies for an agrarian lifestyle, it did not biologically fit out our brain to maintain stable social relationships in very large groups. The brain can only muster seamless co‐ operation with up to 148 people at a time. This cognitive-neurological lim‐ it – Dunbar's number – was established in the 1990s by the British anthro‐ pologist Robin Dunbar.17 He calculated the maximum number of stable social relationships that our brain can process.18 People can of course know more than 148 people, and even maintain relatively close relations with a certain ‘intimacy’ with them. Nowadays we have hundreds of con‐ tacts on Facebook and LinkedIn and you can easily have hundreds of friends in a fraternity or sport club – but the Dunbar number is not about noncommittal contacts of this kind. It refers to the maximum number of social contacts that you can handle in a group in which you literally live together all day.19 You cannot just walk away from a group in which you share everything and you have to invest a great deal in the other members for reasons of self-preservation. A group upon which your survival de‐ pends. What is then the maximum number of members and related net‐ work of information exchange you can blindly rely on? In this light 148 appears rather as a quite large number. If a group grows any larger, beyond the 148-mark, you will need 'something' to be able to keep trusting other group members whose behaviour you will not always be able to predict accurately as you grow less well acquainted with them. Cheating and dis‐ trust can easily become fatal for specialised group collaboration. Some‐ 17 R.I.M. Dunbar, ‘Neocortex size as a constraint on group size in primates’ (1992) in Journal of Human Evolution, 22(6), 469; R.I.M. Dunbar, ‘Coevolution of Neo‐ cortical Size, Group Size and Language in Humans’ (1993) in Behavioral and Brain Sciences, 16, 4, 681, 681-694, especially 686-687 on the number itself. 18 I.e. the number of relationships that can be maintained intensively enough for there still to be intimacy. See Robin Dunbar, Grooming, gossip and the evolution of language (first published 1996, Harvard University Press 1998); R.I.M. Dunbar, ‘Coevolution of Neocortical Size, Group Size and Language in Humans’ cit., 681. 19 Robin Dunbar, Grooming, gossip and the evolution of language cit.

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thing transcendent helps – a common belief, religion, law or the like. Col‐ lective belief in abstractions of this kind can create stable mutual, ‘artifi‐ cial’ trust in a group, even when it is no longer possible to maintain con‐ tact physically because of the size of the group.20 Tribes usually have more than 148 members, which represents a possi‐ ble problem from a neurobiological perspective. For individuals, tribes are potentially disadvantageous: there are fewer people one knows, more strangers, more danger, more aggression and violence, and less 'blind' trust. Why then did tribes come into existence? Most likely because greater large-scale cooperation gives groups competitive advantages and our mental abilities enable us to simulate trust: we can artificially make in‐ dividuals overcome their fear of the unknown and strangers. As every in‐ dividual has the power of imagination – the capacity for abstract and sym‐ bolic representation – and is able to communicate about it, we can imagine things beyond the physical world ('tomorrow', 'future', 'value', 'gods', 'structure of relationships'), which we can collectively believe in.21 We can derive meaning, faith and confidence from these shared abstractions and they in turn can serve as the foundation of even better cooperation.22 4. Law as a Form of Artificial Trust Law as a fiduciary institutions emerged with the formation of tribes. As set out above, abstractions such as religion, law, property, contract, etcetera and the sets of values, norms and behavioural patterns related to them, enable us to have ‘artificial’ trust and cooperate on a scale tran‐ scending our biological limits. No other living creature shares this capaci‐ ty. Ant colonies may be large and cooperate extremely effectively, but sev‐ eral ant colonies cannot work together as a single super colony, any more

20 Tomas Dávid-Barrett and R.I.M. Dunbar ‘Processing power limits social group size: computational evidence for the cognitive costs of sociality’ (2013) 280(1765) Proceedings of the Royal Society B: Biology 1, 1-8, especially 3-4. 21 We are as much 'Homo fictus' as 'Homo sapiens' according to Gottschall. Cf. Jonathan Gottschall, The Storytelling Animal: How Stories Make Us Human (Mariner Books 2013) 4; Neil MacGregor, Living with the Gods: On Beliefs and Peoples (Penguin Books 2018) 10-11. 22 Cf. Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Revolution (Profile Books 2011) 43.

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than other social animals can escape their biological limitations.23 People can. This is the secret of our species’ success, according to evolutionary biologist Joseph Henrich: ‘in the collective brains of our communities.’24 Increasing scale The increasing scale of human co-operation some fifteen thousand years ago was driven by its own dynamics.25 Tribe formation meant that tribes had to expand into larger tribes; larger tribes had to organise themselves better to defend themselves from other groups with further improvements to labour allocation and division. Over time this led to the development of chiefdoms, large groups working together under a more or less permanent leadership.26 The need for even greater social stability and better (compet‐ itive) control over the natural environment subsequently impelled chief‐ doms, in turn, to grow into kingships (or other forms of hereditary leader‐ ship), whence the first ‘states’ later arose, in which personal leadership of a group within a territory became more or less a function and leadership could ultimately also exercised by various (abstract) offices.27 This line of

23 ‘[…] animals cannot maintain the cohesion and integrity of groups larger than a size fixed by the information-processing capacity of their neocortex.’ R.I.M. Dun‐ bar, ‘Coevolution of Neocortical Size, Group Size and Language in Humans’ cit., 681. 24 Joseph Henrich, The Secret of our Success: How Culture is Driving Human evolu‐ tion, Domesticating Our Species, and Making Us Smarter (Princeton University Press 2016) 5. 25 A process that Jared Diamond calls 'amalgamation'. ‘Amalgamation occurs’, Dia‐ mond argues, ‘[…] in either two ways: by merger under the threat of external force, or by actual conquest.’ It is never a case of unthreatened groups joining of their own free will – this assertion is underpinned by the archaeological evidence. ‘Contrary to Rousseau, such amalgamations never occur by a process of unthreat‐ ened little societies, freely deciding to merge, in order to promote the happiness of their citizens.’ Jared Diamond, Guns, Germs and Steel: The Fates of Human Soci‐ eties cit., 289. 26 As Scott demonstrates, this is not an evolutionary law, but rather a sort of social chain reaction triggered by external circumstances. James C. Scott, Against the Grain: A Deep History of the Earliest States (Yale University Press 2017) (sum‐ marised in the paragraph Thumbnail Itinerary) 17 ff. 27 The evolutionary scheme of humanity's socio-political development from groups of hunter-gatherers to tribes, then to chiefdoms and kingships and later to states

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political development is almost inexorable.28 The Neolithic Revolution set forces in motion which forced humankind into political (leadership) orga‐ nisation, resulting in a chain reaction of ever greater and more hierarchical forms of human cooperation. ‘The necessity of politics’ as political scien‐ tist Francis Fukuyama refers to this process. Although this development has not always been linear and history has a winding course, with excep‐ tions and moments of 'relapse', it is unquestionably the common thread in the history of human societies. This history elucidates where the now ubiquitous 'state-based' societal form comes from.29 The almost automatic increase in scale of human cooperation is a fixed pattern in world history.30 It happens everywhere.31 Nowadays only a few small groups still live as hunter-gatherers or in tribes, mostly in remote ar‐ eas.32 Larger, better organised groups generally outperform smaller, less organised ones.33 The increasing scaling of human cooperation – at least this is the contention of much recent literature – is not just a consequence of individuals’ or collectivities’ will or strategy, but of a process chiefly driven by external factors.34 The fact that external factors effect greater scale does not mean that in‐ dividual members of these ever-larger groups simply accepted their new fates. If the members of the new enlarged group had not seen, collectively, the added value of it or had not believed in it, then they would have cer‐

28 29 30 31 32 33

34

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has been considered the standard development since the publication of Elman Ser‐ vice's book Primitive Social Organization. See Elman R. Service, Origins of the State and Civilization: The Process of Cultural Evolution (W.W. Norton 1975). Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Revolution (Profile Books 2011) part I and II. James C. Scott, Against the Grain: A Deep History of the Earliest States cit. Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies cit., Part II and Part IV. Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies cit., 10-12. Jared Diamond, The World Until Yesterday cit., 10-12. Pinker says on this: ‘People in all cultures feel that they are members of a group (a band, tribe, clan, or nation) and feel animosity toward other groups’, Steven Pinker, How the Mind Works (first published 1999, W.W. Norton 2009) 509; Lawrence H. Keeley, War before civilization: The myth of the peaceful savage. (W.W. Norton 1996). Cf. Elman R. Service, Origins of the State and Civilization: The Process of Cultur‐ al Evolution (W.W. Norton 1975).

Trust as a Cornerstone of Enacted Law

tainly dispensed with it or withdrawn themselves from it.35 Internal factors such as conviction and group feeling determine a group’s continuity and strength. Members of tribes, chiefdoms or kingdoms must have been con‐ stantly cajoled to participate at the start of the Neolithic Revolution: they would have to have been continuously tempted and enticed to join such an essentially unnatural form of cooperation. Their default mindsets inclined them to renege; this made prehistoric societies quite unstable. In his book Against the Grain, James Scott shows how vulnerable the first states in Mesopotamia actually were and how relatively complex organised soci‐ eties often collapsed and regressed to more primitive forms of collective cooperation.36 Establishing and maintaining greater scales of human coop‐ eration requires a durable, shared belief in its added value ('social capi‐ tal’),37 as well as members’ mutual trust. Although we are not naturally able to do so, as has been outlined, we can trust people we are not ac‐ quainted with and strangers through artificial constructions, such as by constructing artificial 'families'. A religious or legal community enables you to predict other members’ behaviour and establish their trustworthi‐ ness without necessarily having to know an individual member well. Trust is essential. It liberates you from having to look over your shoulder all the time, and as a rule you can be sure that tasks you have entrusted to others will actually be carried out. Trust reduces uncertainty and fear and pro‐ motes efficient collaboration.38

35 Scott argues that we humans, like plants and animals, have been ‘domesticated’ in our evolutionary process by our new, larger-scale forms of cooperation. James C. Scott, Against the Grain: A Deep History of the Earliest States cit., 37-67. 36 James C. Scott, Against the Grain: A Deep History of the Earliest States cit., Chapter 6 (Fragility of the Early State: Collapse and Disassembly) 183-218. 37 See Robert D. Putnam, ‘Bowling Alone: America’s Declining Social Capital’ (1995) in Journal of Democracy, 6, 1, 65; Robert D. Putnam, ‘Tuning In, Tuning Out: The Strange Disappearance of Social Capital in America’ (1995) in PS: Polit‐ ical Science and Politics, 28, 4, 664. 38 Luhmann says on this: '[Trust] serves to surmount an element of uncertainty in the behaviour of other people which is experienced as the unpredictability of change in object. In so far as the need for complexity grows, and in so far as the other person enters the picture both as alter ego and as fellow-author of this complexity and of its reduction, trust has to be extended, and the original unquestionable fa‐ miliarity of the world pushed back, although it cannot be eliminated completely.’ Niklas Luhmann, Trust and power (Christian Morgner and Michael King eds, Howard Davis, John Raffan and Kathryn Rooney trs, first published 1973 and 1975, Polity Press 2017) 25.

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5. How Does Trust Work? The importance of trust to human cooperation can hardly be overestimat‐ ed: it is the foundation of coordinated large-scale human cooperation in tribes, chiefdoms, kingships and empires and, later, in states.39 Trust is the cornerstone enabling us to cooperate on a large scale in ways far exceed‐ ing our neural capacity.40 It important, but also very fragile; trust might be the basis of a basically rational and strategic decision to cooperate better, but modern cognitive science has also demonstrated that it is closely linked in our brain to deep emotions such as fear, anger, sadness, joy, sur‐ prise, etcetera.; We all have very strong emotions and reactions when we are lied to or when we are deceived – something seems to really ‘break’ (hence ‘broken trust’) and it takes a long time to heal. ‘For trust not him that hath once broken faith’, William Shakespeare has Lady Gray say in King Henry VI.41 It holds true. Broken trust results in panic-stricken reac‐ tions, emotional hurt, anger and even rage. This relates to the various as‐ pects of trust. On the one hand it has an affective dimension – the moralemotional expectation that trust will be honoured and the belief that this is proper and right and, on the other hand, a cognitive dimension – the cal‐ culated expectation that trust will be honoured and the benefits associated with it will follow.42 Affective trust is also needed for cognitive trust to work.43 A leader you do not trust, a group where you do not feel at home, an exchange market you cannot rely on or even a lack of faith in the future (for example, ‘declining consumer confidence') can make durable cooper‐

39 Or as Solomon and Flores put it, with a nod to Thomas Hobbes: ‘Without trust the corporation becomes not a community but a brutish state of nature, a war of all against all in which employment tends to be nasty, brutish, and short.’ Robert C. Solomon and Fernando Flores, Building trust in business, politics, relationships, and life (Oxford University Press 2001) 5. 40 Weber and Carter point out ‘that trust is a foundational orientation between self and other.’ Linda Weber and Allison I. Carter, The Social Construction of Trust (first published 2003, Springer 2004) VII. 41 William Shakespeare, Henry VI, 1591. Part 3, Act 4, scene 4:31. 42 See Frank B. Cross, ‘Law and Trust’ (2005) in Georgetown Law journal, 93(5) 1457, especially 1461-1471. 43 Ibid, 1457, 1468-1475. Affective confidence responses even precede cognitive re‐ sponses (by a few milliseconds). See Elizabeth Theiss-Morse and Dona-Gene Bar‐ ton, ‘Emotion, cognition, and political trust’, in Sonja Zmerli and Tom W.G. van der Meer (eds), Handbook on Political Trust (Edward Elgar 2017) 160-175, espe‐ cially 171.

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ation falter. That is why corruption is so detrimental to societies and politi‐ cal systems: it feeds a sense of a lack of trust, which impedes cognitive trust.44 Trust contributes to the social capital45 needed for large-scale co‐ operation.46 Its presence pays dividends politically, economically and on many other fronts.47 But you cannot simply conjure it up.48 However important and necessary trust in others may be, it is always a precarious and uncertain undertaking. It is essentially not much more than an optimistic prediction of other people's future behaviour – and more than anything an expectation of a favourable outcome for you.49 But of course you will never know for sure what the future holds or what is really going on in someone else's mind. Your heart skips a beat in anticipation – trust is not just a calculation of probability. It is also a bit of a game of poker in which you have to guess an opponent's hand while your racing hormones, rather like screaming infants, throw you out of focus and pre‐ vent you from making the most 'rational' assessment. For emotions (anger,

44 See Eric M. Uslaner, ‘Political trust, corruption, and equality’, in Sonja Zmerli and Tom W.G. van der Meer (eds), Handbook on Political Trust (Edward Elgar 2017) 303 and 313. 45 According to Robert Putnam's definition, social capital consists of ‘features of so‐ cial organisation such as networks, norms and social trust that facilitate coordina‐ tion and cooperation for mutual benefit’. Robert D. Putnam, ‘Bowling Alone: America’s Declining Social Capital’ cit., 65, 67; Robert D. Putnam, ‘Tuning In, Tuning Out: The Strange Disappearance of Social Capital in America’ cit., 664; cf. Francis Fukuyama, ‘Differing Disciplinary Perspectives on the Origins of Trust’ (2001) in Boston University Law Review, 81, 3, 479, 479-480 and 494. 46 Frank B. Cross, ‘Law and Trust’ cit., 1475-1483 and 1543-1544. 47 Stephen Knack and Philip Keefer, ‘Does Social Capital Have an Economic Pay‐ off? A Cross-Country Investigation’ (1997) in The Quarterly Journal of Eco‐ nomics, 112(4), 1252. 48 Linda Weber and Allison I. Carter, The Social Construction of Trust (first pub‐ lished 2003, Springer 2004) 154-159. 49 Frank Cross developed a generic definition of trust. He says it comes down to: ‘[...] belief, attitude, or expectation concerning the likelihood that the actions or outcomes of another individual, group or organisation will be acceptable or will serve the actor’s interests.’ This incorporates most elements of the literature on trust from the past 40 years. Frank B. Cross, ‘Law and Trust’ cit. 1457, 1461; Us‐ laner contends that ‘the decision to trust another person is essentially strategic,’ but it has a moral dimension as well. ‘Moralistic trust is a moral commandment to treat people as if they were trustworthy. The central idea behind moralistic trust is that most people share your fundamental moral values.’ Eric M. Uslaner, ‘Trust as a Moral Value’, in Dario Castiglione, Jan W. van Deth and Guglielmo Wolleb (eds), The Handbook of Social Capital (Oxford University Press 2008) 102.

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fear, sadness, happiness etcetera)50 are inescapable biochemical reactions in your body,51 largely beyond your control.52 Trust is far from easy, even if you are not of a mistrustful predisposition. Trusting means surrendering control of something or someone without knowing exactly how things will turn out.53 A representative who makes a purchase for you, someone who agrees to bake a loaf of bread for you if you give them part of your har‐ vest, a leader who says he will protect your family if you provide services and pay taxes – situations beyond your control in which you no longer di‐

50 It is usually assumed that there are eight basic emotions: love, fear, joy, rage, an‐ guish, surprise, shame and disgust. Cf. for more Robert W.Levenson, ‘Human emotion: a functional view’ in Paul Ekman and Richard J. Davidson (eds), The Nature of Emotion: Fundamental Questions (Oxford University Press 1994) 123-126. Levenson assumes (like Ekman) that these emotions are innate products of human evolution. He is not alone in this belief, but not everyone is convinced. For what can be considered a basic emotion see Paul Ekman, ‘Basic emotions’, in Tim Dalgleish, and Mick Power (eds), Handbook of Cognition and Emotion (John Wiley & Sons 1999). 51 Our brain enables us – as social animals – to trust and measure others’ trustworthi‐ ness; this capacity is also embedded in our brain's neurobiological structure. The flow of messages to the control room is largely automatic – through biochemical, hormonal reactions in our body. A number of studies have shown that, for exam‐ ple, the substance oxytocin (the 'love hormone') can cause changes in trust. Michael Kosfeld, Markus Heinrichs, Paul J. Zak, Urs Fischbacher, and Ernst Fehr, ‘Oxycitin increases trust in humans’ (2005) in Nature, 435(7042), 673. The Leiden professor of social and organisational psychology Karsten De Dreu and others have shown that oxytocin not only promotes cooperation, but also has a conflictgenerating effect in certain cases. Oxytocin can cause members of a group to no longer want to cooperate (and hence cause a decrease in trust) so that they can de‐ fend vulnerable members of a group. Defiant group members exhibit this kind of defensive, protective (competitive) behaviour even when their self-interest is not at stake. One could call it minority protection on a hormonal-neurological level. Carsten K.W. de Dreu, Lindred L. Greer, Michel J.J. Handgraaf, Shaul Shalvi, et al. ‘Oxytocin Motivates Non-Cooperation in Intergroup Conflict to Protect Vulner‐ able In Group Members’ (2012) in Plus One, 7,11, 1. 52 Dunn nicely juxtaposes these two aspects of trust: ‘Trust is both a human passion and a modality of human action – a more or less consciously chosen policy for handling the freedom of other human agents or agencies. As a passion, a senti‐ ment, it can be evanescent or durable. But as a modality of action it is essentially concerned coping with uncertainty over time.’ John Dunn, Interpreting Political Responsibility: Essays 1981-1989 (Princeton University Press 1990) Chapter 3 Trust and Political Agency, especially 26. 53 Jack Barbalet, ‘A characterization of trust, and its consequences’ (2009) in Theory and Society, 38, 4, 367.

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rectly conduct all your own affairs. Of course, you trust to achieve or ac‐ quire things that would otherwise be out of your reach. Dependence on others and uncertainty about their trustworthiness54 is part of the bargain.55 Trust pays: it enables us to reach beyond our biological limits, take rea‐ soned risks, make predictions which help us prepare for the future56 and it contributes to economic growth and prosperity.57 Nature lends a helping hand when making these predictions. We are equipped with a series of neurological measuring instruments which en‐ able us to estimate the reliability of people, things and situations; a system of pumps and valves, neurotransmitters and firing neurons in our bodies can incite our willingness to cooperate, but can, in an instant, just as easily arrest our willingness to cooperate and make us outrightly hostile.58 And even though we have the ability to trust strangers, we do have to overcome many hurdles of suspicion and hesitation before we can cooperate with them. As outlined above, people can use their imagination to help them rely on strangers, as well as unknown situations or entities. The human imagi‐ nation enables us to invent things, share them and so create – reassuring and confidence-building – intersubjective realities.59 These representations are sometimes of non-existent things, which nevertheless can be experi‐ enced collectively as being real and true.60 This may include things like the will of the gods, the value of things, the meaning of events and repre‐

54 55 56 57

See Russell Hardin, Trust and Trustworthiness (Russell Sage Foundation 2002). Jack Barbalet, ‘A characterization of trust, and its consequences’ cit., 367. See Niklas Luhmann, Trust and power cit., 12-13, 17 and 27-29. Among other things because it lowers transaction costs (see chapter 22). Bart Nooteboom, Trust: Forms, Foundations, Functions, Failures and Figures (Edward Elgar 2002), 103-108; Cf. Mark Christopher Casson and Marina Della Giusta, ‘The economics of trust’, in Reinhard Bachmann and Akbar Zaheer (eds), Hand‐ book of Trust Research (Edward Elgar 2006). 58 When we lack or lose trust, a downward spiral of suspicion quickly takes hold, which is not easy to reverse. Nicole S. Harth and Tobias Regner, ‘The spiral of dis‐ trust: (Non-)cooperation in a repeated trust game is predicted by anger and indi‐ vidual differences in negative reciprocity orientation’ (2017) in International Jour‐ nal of Psychology, 52, S1, 18. 59 John R. Searle, The Construction of Social Reality (The Free Press 1995)1-5 and 31-34; Yuval Noah Harari, Sapiens: A Brief History of Humankind (Vintage 2011) 150. 60 Benson Saler, ‘On what we may believe about beliefs’, in Jensine Andresen (ed), Religion in Mind: Cognitive Perspectives on Religious Belief, Ritual and Experi‐

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sentations – ideas on how we should live, how we should behave towards each other, our dues to society etcetera. Fiduciary institutions such as ownership, property, leadership as well as offices, contracts, money, mar‐ riage, edicts and especially law and legislation enable us to literally make leaps of faith61 and do things with outcomes we cannot assess beforehand and put trust in strangers in ways that extend beyond our biological lim‐ its.62 6. Imagined World of the Law Law as expressed in legislation is a case in point of a leap of faith of this kind. Modern societies depend on ‘words on paper expressing norms’ to cement and guide ourr cooperation. The abstract, metaphysical notion of ‘law’, is something almost tangible in our common imagination, even though in itself it is a figment of our imagination. Imagined orders, like ‘states’, ‘law’, ‘legislation’, ‘governments’, ‘money’ etc. are ubiquitous and they are so strong that it is difficult for many people to accept that they are not much more than the product of our imagination.63 They feel ‘real’ – very much as a sort of existential belief. Yuval Harari expresses this uncomfortable feeling aptly in his popular book Homo Deus: People find it difficult to understand the idea of ‘imagined orders’ because they assume that there are only two types of realities: objective realities and subjective realities. In objective reality, things exist independently of our be‐ liefs and feelings. [...] Subjective reality, in contrast, depends on my personal beliefs and feelings. [...] Most people presume that reality is either objective

ence (Cambridge University Press 2001) 47-69 especially 54-55 on ‘disposition theory’. Saler cites Ward Goodenough’s definition of faith: ‘propositions that peo‐ ple accept as true’. 61 Guido Möllering, Trust, reason, routine, reflexivity (Elsevier 2006) Chapter 5, 105 ff. 62 This is a considerable mental leap. For this reason, Chorvat and MacCabe also de‐ fine trust as: “the willingness to behave in such a way that only makes sense if you believe that others will reciprocate any benefits to you extended to them”, Ter‐ rence Chorvat, and Kevin McCabe, ‘The brain and the law’, in Semir Zeki and Oliver Goodenough (eds), Law and the Brain (Oxford University Press 2006), 117-118. 63 Harari claims there is even an ‘iron rule of history that every imagined hierarchy disavows its fictional origins and claims to be natural and inevitable’. Yuval Noah Harari, Sapiens: A Brief History of Humankind cit., 148.

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or subjective, and that there is no third option. Hence once they satisfy them‐ selves that something isn’t just their own subjective feeling, they jump to the conclusion that it must be objective. If lots of people believe in God; if money makes the world go round; and if nationalism starts wars and builds empires – then these things aren't just a selective belief or mine. God, money and na‐ tions must therefore be objective realities.

With laws enshrined in legislation modern societies regulate markets, products and services, establish institutions like the offices of government, parliaments, courts, and elections. Legislation governs our way of life be‐ cause we believe in it, because it is a very strong imagined world. Strong but not invulnerable – the faith in legislation needs to be reconfirmed con‐ stantly by the ‘faithful’ in order to keep the belief system – that helps us to cooperate beyond our neurobiological limits – going. If legislation is not upheld, not enforced, not abided by, by large groups, it erodes the faith in it and ultimately makes the imagined reality of law collapse. Law and leg‐ islation are so much more than words on paper, they reflect fascinating imaginaries of ‘abstract words and institutions’ that are able to touch on deep felt emotions of people. Legislation is the vehicle that to a large extent legitimises law formation in modern relationships and thereby fosters trust in the law even more.64 Statutory requirements in legislation are nowadays not established through random majority decisions, but are the outcome of balancing interests where political points of view are viewed from both sides in an open fo‐ rum according to a transparent procedure. The law can in fact can, by virtue of opposing views and interest, bridge differences by reflecting on various elements in a discussion leading up to a law and by internalising agreements following a political dispute. That makes legislation a two edged sword: it fosters trust in the law as such by expressing and reaffirm‐ ing the idea and principles of it and, its enactment in itself legitimizes65

64 Wim Voermans, Het Verhaal van de grondwet: zoeken naar wij (The Story of the Constitution: Discovering the we in us, English translation forthcoming, Prometheus 2019). 65 Legitimacy is not a state, or a fixed attribute, it is a normative quality. Beetham, for one, argues that legitimacy always has a normative structure. It is always de‐ rived from rules (for example legal rules) that can be justified (in terms of a shared belief in them), and legitimacy in the form of ‘expressed consent on the part of those qualified to give it’. See David Beetham, The Legitimation of Power (2nd edn, Palgrave Macmillan 2013) chapter 3 (The Normative Structure of Legitimacy) 64-99.

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the idea of man-made law: the notion that we can have ‘good’ law if the proper procedure is followed. 7. Trust as the X-Factor We normally do not tend to ponder the question how legislation appeals to the human brain, which neurological mechanisms are at play when we adopt and implement law or what the evolutionary roots of our belief in the law are. For good reason maybe; why should we? Legislation is a strong common belief and it works. Why stop and pause at the issue of the imaginary quality of money when we can work with the idea that it repre‐ sents ‘value’ in the common imagination? No need for that. ‘What good is, is what works’ as some practical, coarse ethics would have it. Fair enough. But still then it is academically interesting to look into the way we use legislation for mass cooperation in our societies and that we really need it because our default trust mechanisms do not allow us to trust ‘strangers’. We need intermediate concepts and institutions, imagined real‐ ities, for that – things we can collectively believe in: artificial trust. Know‐ ing that is important, not just for academia, but also for legislative drafters and practitioners. It will remind them of something they may have always intuitively known; that legislation is not a toolbox of parts to engineer so‐ ciety with, that there are no levers or switches that can be pulled or turned on or off with a guaranteed outcome, that legislatures are no facto‐ ries...Legislation touches at the heart of our emotions and psyche in ways that we need to research more – even for practical purposes. If we draft and enact legislation we can improve the act by better knowing how legis‐ lation affects individual and collective minds. We need to know more about how legislation does or does not build trust – the X-factor of all law. In 2014 Netherlands Scientific Council for Government Policy (WRR) advocated that Dutch Policymaking could improve if greater use were made of the knowledge contributed by behavioral economics and psychol‐ ogy.66 The behavioral sciences should therefore be embedded more deeply in the policymaking process, for example by establishing a basic capacity internally in each ministry, the WRR concludes. This is of course a long

66 In its report Policymaking Using Behavioural Expertise, Report n. 92 (The Hague 2014).

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train coming. Legislative drafters, lawyers, judges and most politicians are not al that well acquainted with the behavioral sciences and not trained in reading or assessing the results of research in these domains. Here lies an important mission for academia – especially law schools – to translate the truly fascinating results behavioral sciences yields and the great strides that are made in these disciplines. I for one applaud the brave initiative of the editors of this volume. Looking further and trying to understand the bedrock of law – trust – is a good step in the right direction.

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Regulation, Regulatory Delivery, Trust and Distrust: Avoiding Vicious Circles1 Florentin Blanc

Summary: 1. Introduction - 2. Regulation, Regulatory Delivery, Trust and Distrust – 2.1. What Links between “Regulation”, “Regulatory Delivery”, and the “Trust” Issue? - 2.2. The Importance of Regulatory Delivery for Modern Regulations - 2.3 Regulatory “Incomprehensibility”, Impossibility of “Optimal” Rules and Need for Discretion - 2.4 Discretion, “Corrup‐ tion”, Trust and Distrust - 3. Risk Perceptions, “Cycle of Distrust” and Regulatory Effectiveness - 3.1. Perceptions, Expectations, and Distrust 3.2. Effective Regulatory Delivery - 4. Conclusion 1. Introduction This book, being titled The Crisis of Confidence in Legislation, assumes in naming itself several things. First, that there is indeed a widespread and rather strong distrust or at least lack of trust from citizens towards rules officially issued by the state (ie legislation). Second, that it is a crisis, meaning that at some point in the past the level of trust was higher (or dis‐ trust was lower). Third, that what trust or distrust is about is “legislation” – the body of rules officially adopted by the Legislative branch or through powers vested in the Executive, and mandatory for all. My point is not here to challenge the premises of the book, and there would also be many nuances to make about the distinctions between trust, distrust, confidence and the lack thereof. Rather, it is to point out that what the lack of confidence may be about is not necessarily “legislation” in its abstraction but rather its intended outcomes, ie “what legislation is about” (or at least what citizens expect from it), and the role of state structures in delivering these outcomes. It is also to signal that, while we see ample evi‐

1 This chapter was finalized with the kind assistance of Carola Bertone, Blerta Guzi‐ na and Livia Lorenzoni.

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dence of distrust, we probably lack sufficiently reliable and comprehen‐ sive data to ascertain whether it is significantly worse than it used to be, and so strongly that it introduces a discontinuity (“crisis”), or whether this lack of confidence (or even distrust) existed before, and has just become more visible and prominent because of a series of possibly unrelated changes (transformations in media, social discourse, political forces, etc.). It is perfectly possible that a couple decades ago many citizens did not re‐ ally trust that legislation would deliver outcomes, but deemed it less im‐ portant, or not worth expressing, or had no way to express it. In any case, what we see is a trend that manifests itself as a crisis of confidence2 – but is it solely or mainly about “legislation” as a set of rules, or also about the state as a set of structures that not only sets but also ad‐ ministers rules? A good illustration of the importance of keeping this dis‐ tinction or even duality in mind is provided by the various reactions to the different rules being imposed as part of the Covid-19 response. First, it is striking that public reaction to the measures being imposed (or not im‐ posed, or lifted), be it assessed through opinion polls, media reports, social media trends or anecdotal evidence, seems to differ very strongly between different countries following factually similar approaches. In other words, the rules are similar between several countries, but the level of trust or dis‐ trust expressed diverges radically.3 Second, in many countries, the “face” of the crisis response involves not only political office-holders but heads or senior staff of major technical, “regulatory” agencies or services, and the public reaction may reflect not only trust in politicians but in these technical services, and/or in turn fall back on these (ie distrust in the offi‐ cial Covid response may lead citizens to trust these agencies less, or some‐

2 In this chapter, I use “trust” and “confidence” in their most common meaning and essentially interchangeably, notwithstanding the important nuances exposed i.a. by Maria De Benedetto in this same volume. Given the limited detail of data available on public attitudes towards regulation and regulators, excessive precision seems dif‐ ficult to justify. Nonetheless, I briefly return to the possible distinction between the terms in the conclusion. 3 Examples can be seen in all kinds of response models – France and Italy have rela‐ tively similar approaches, but very different public reactions as measured eg by polling for political leaders. The UK and Sweden followed relatively similar re‐ sponses initially, but it was rapidly reversed in the UK after massive backlash, whereas Sweden has continued on a “no-lockdown” route, with overall public back‐ ing.

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times more if they are seen as “dissenting” from the “official” line).4 Trust or lack thereof in both rules and those responsible for imposing and con‐ trolling them can have a significant impact on compliance with these rules, and thus on their effectiveness. In the context of a pandemic, this takes a particular salience – and so does trying to understand some of the drivers of this trust or distrust. Because “legislation” is such a vast universe, and because it is best to stay on topics where one has some knowledge, in this chapter I look more modestly at “regulation” in the sense of the set of rules, procedures and processes that seek to govern economic activities (and some “private” ac‐ tivities with a strong “social” dimension). I first consider the relationship that is often assumed to exist between regulation and trust, and how this is often understood to have helped drive the historical development of regu‐ lation. I then look specifically at how the “crisis of confidence” appears to have affected the “delivery” side of regulation, ie the institutions which are tasked with implementing it, and at some of the elements which may have driven this growing distrust. Finally, I consider whether certain ap‐ proaches to the design and delivery of regulation may appear able to offer better results, both in terms of “objective” results and in terms of public trust. 2. Regulation, Regulatory Delivery, Trust and Distrust To try and understand the complex relationship and dynamics between regulation and trust, we first need to clarify a bit the terms. “Regulation” here is understood as the body of rules (including both substantive norms and the imposition of mandatory procedures and processes) that apply to economic activities (and to certain social/non-for-profit activities too) with the specific aim to achieve some instrumental results (economic, social or

4 There are too many cases and examples to quote here but the initial “herd immuni‐ ty” and its subsequent reversal in the UK may have affected the credibility of Public Health England (which was associated with the Government policy), and it may be that the gap in mortality between Sweden and its neighbours (which applied lock‐ down measures) may come to harm the credibility of Swedish sanitary authorities, which backed the “laissez-faire” approach. In the US, where some agencies or their heads are perceived as diverging from the President’s line, this may result in in‐ creased (or decreased) trust in these agencies based on political affiliation.

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otherwise).5 In an active sense, “regulation” can also be understood as the activity of developing such rules, and in an institutional term, as the set of rules and structures that are involved in developing and administering them. As much as possible, I will use the narrow sense, ie regulation as a set of rules. “Regulatory delivery”, in turn, is understood as the whole set of institutions, people, processes, practices, activities etc. that are intended to support the implementation of regulation from the state’s side – includ‐ ing authorization and similar processes, information and guidance, inspec‐ tions and enforcement etc.6 While they are often confused in terminology and discourse, there is a growing body of research and practice suggesting that each have their own importance, and that eg a similar body of rules can be “translated” very differently from one jurisdiction to the other based on diverging “delivery” systems.7 I will thus look specifically at the relevance of the delivery of regulation in the level of trust and distrust, starting from the way in which their links have often been theorized, and considering how evolutions and divergences might be at least partly ex‐ plained. 2.1. What Links between “Regulation”, “Regulatory Delivery”, and the “Trust” Issue? Historically, some specific areas of regulation appear very early on, such as those covering currency, weights and measures, taxes and customs.8 While taxes and customs were primarily about revenue, there is a case to be made that currency was also about trust (consistent weight of precious metal for exchanges), and weights and measures as well – thus facilitating

5 Wim J. M. Voermans, ‘Legislation and Regulation’ in Ulrich Karpen and Helen Xanthaki (eds), Handbook of Legislation (Hart Publishing 2017). 6 OECD, Regulatory Enforcement and Inspections (2014); OECD, Regulatory En‐ forcement and Inspection Toolkit (2018); Graham Russell and Christopher Hodges, Regulatory Delivery (Hart Publishing 2019). 7 Florentin Blanc, Inspection Reforms: Why, How, and With What Results (OECD 2012); OECD, Regulatory Enforcement and Inspections (2014); Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections (Edward Elgar Publishing 2018); Graham Russell and Christopher Hodges, Regulatory Delivery cit. 8 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit.

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trade by ensuring that buyers would not be misled by sellers (though rules on weights and measures could also have political and budget objectives).9 While the European Middle-Ages, for instance, saw a number of rules and control systems (public or private, such as guilds) apply to food and nonfood items, intended to reassure people that what they were sold was of the expected quality, and that food and animals were not bringing diseases into the city (though, in the absence of an adequate understanding of dis‐ eases, these rules were rarely effective).10 Still, the emergence of “mod‐ ern” regulation, covering far more areas of economic and social life, in a more detailed way, and administered by gradually developing institutions, really started in the 19th century.11 There are a number of reasons, causes, enabling factors, which all con‐ tributed to this emergence and subsequent development of increasingly broad regulatory functions, and of regulatory institutions with increasing powers and staff.12 Explanatory attempts need not exclude each other: reg‐ ulations’ and regulatory institutions’ growth probably had to do both with advances in sciences and techniques, public risk perceptions, regulatory “entrepreneurship” and interest groups pressure (or “capture”). Coming to our topic, one of the important narratives about the early rise of regulation and regulatory delivery is that it would have been related to the question of trust – and there are significant elements in favour of this view. Applied to the US, for instance, the rapidly increasing distance between producers and consumers of food, stretching many supply chain steps and state boundaries, led to demand for Federal regulation to (re-)establish trust, whereas this was unnecessary in an earlier period of self-consumption or

9 Ibid. 11-13. 10 Madeleine Ferrières, Sacred Sacred Cow: A History of Food Fears (Columbia University Press 2005); Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit. 11 Anthony Ogus, Regulation: Legal Form and Economic Theory (Clarendon Press 1994); Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit. 12 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit.. Florentin Blanc and Giuliana Cola, ‘Inspections, Risks and Circumstances. Historical Development, Diversity of Structures and Practices in Food Safety’ (2018) in Studi Parlamentari e di Politica Costituzionale, 197/198, 47-88.

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very local marketing, with buyers knowing producers.13 Early examples of regulations and controls adopted to support exports by reinforcing buyers’ trust go in the same direction.14 First, as I have argued elsewhere, there is no “straight line” from the “objectively-assessed need” to the adoption of regulations and establish‐ ment of regulatory institutions.15 Rather, risk perceptions,16 historical acci‐ dents, and path dependency, all play a major role. Second, and crucially for the discussion on confidence in legislation, the attempt to remediate lack of trust through regulation may fail or even backfire. Failure or back‐ firing could happen through inadequate regulatory design, ineffective de‐ livery, or because regulation is ineffective to address the issue. In both cas‐ es, the result may be increased distrust rather than re-established confi‐ dence. The introduction of regulation also means increased expectations and attention to a given topic, and this in turn may be an additional source of decreased confidence if these expectations are not met, whereas the public might have otherwise ignored the issue or given it less importance. The simple, straightforward narrative of “regulation enables trust”17 is thus incomplete and insufficient, and relies on too many assumptions. It would be more accurate that the intent of at least some regulations is to enable trust between different economic and social actors, which is far more modest. What, then, can the factors be that lead certain regulations and regulatory arrangements to be more or less successful at reinforcing trust? On the one hand, regulatory design is often at fault. Diver has con‐ vincingly demonstrated the impossibility of “optimal” rules,18 and Ogus or Baldwin have both shown the limits of “regulating with rules”19 and how different types of norms all unavoidably are imperfect in that compliance

13 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit., 63-65. 14 Ibid. 15 Ibid. 16 Paul Slovic, ‘Perception of Risk’ (1987) in Science, 236(4799), 280. 17 Rebecca M. Bratspies, ‘Regulatory Trust’ (2009) in https://papers.ssrn.com/sol3/p apers.cfm?abstract_id=1364314 (accessed 13 April 2020); Paolo Pinotti, ‘Trust and Regulation: Addressing a Cultural Bias’ (2009) Bank of Italy Working Papers 721/2009. 18 Colin S, Diver, ‘The Optimal Precision of Administrative Rules’ (1983) in The Yale Law Journal, 93,1, 65. 19 Robert Baldwin, Rules and Government (Clarendon Press 1995).

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will not guarantee outcomes,20 and/or compliance will be particularly hard to define, measure and ensure.21 Too often, regulation (and thus legisla‐ tion) is used as a default policy response, without properly questioning whereas it is likely to be an effective one.22 On the other hand, how regu‐ lations are delivered can also play a major role in their effectiveness in terms of establishing or reinforcing trust, or distrust. 2.2. The Importance of Regulatory Delivery for Modern Regulations “Regulatory delivery” is a relatively new term, that seeks to cover the whole spectrum of activities, measures, processes used to increase imple‐ mentation of regulations in practice.23 The intent of the term is both to cover as broadly as possible (permits and approvals, information and ad‐ vice, inspections and enforcement…) but also to give a more neutral or even positive tone compared to the more “punitive” nuance implied in “enforcement”.24 Indeed, the default approach as well as the implied as‐ sumption about regulation has long been (and still generally is) that it would be complied with through “control and punishment”, ie enforce‐ ment. The logic of a “control and punishment” approach to regulatory de‐ livery is based, intrinsically, on distrust – of individual motivations, of others. It focuses on non-compliance rather than on compliance, and it as‐ sumes that non-compliance is primarily due to conscious intent. It is also based on the principle that “ignorance of the law is no excuse” and nemo censetur ignorare legem. In this classical legal perspective, it is incumbent on citizens (and legal persons as well) to know about laws, which also im‐ plies that a legal violation is assumed, barring evidence to the contrary, to be intentional.

20 Anthony Ogus, Regulation: Legal Form and Economic Theory cit. 21 Ibid. 22 OECD, Regulatory Enforcement and Inspections cit.; OECD, Regulatory Enforce‐ ment and Inspection Toolkit cit.; CCV, ‘InterventieKompas’ accessed 16 April 2020. 23 Graham Russell and Christopher Hodges, Regulatory Delivery cit. 24 By contrast, because of the difficulty to translate “regulatory delivery”, the OECD kept the “inspections and enforcement” terminology, with an enlarged meaning – OECD, Regulatory Enforcement and Inspections cit.; OECD, Regulatory Enforce‐ ment and Inspection Toolkit cit.

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Whether the latter principle was ever fully applicable is debatable, and there is much evidence to suggest that the assumption that compliance is primarily driven by fear of control and punishment is not generally valid.25 In any case, it is essential to understand that what regulation con‐ sists of has considerably changed over the past 50 years, in ways that have very imperfectly and inconsistently reached not only the broader public, but also policymakers (politicians), and even many lawyers, magistrates and civil servants. The sheer volume, complexity, level of technical de‐ tails, and reach of regulations across different domains has radically in‐ creased, to the point that we may be dealing with a cumulative change in volume that leads to a change in nature. Individually, each of the rules may be in theory knowable and understandable, though they often require considerable technical knowledge to be properly understood, but when a multitude of rules from different sources and on different topics are added together, “ignorance of law is no excuse” becomes a very insufficient prin‐ ciple to rely on. In a context where rules are complex, in no way self-explanatory, often defined in terms of reaching certain levels of performance or outcomes in a given context (and thus requiring technical expertise to be understood, and to verify compliance), and where a given activity is subject to a large number of rules (so large that, typically, no single state official or service can tell you with authority the full list that applies), the default assumption cannot remain that non-compliance is intentional, but rather that it is high‐ ly likely to result from ignorance, incomprehension, improper interpreta‐ tion, or incapacity to comply (technically and/or financially). 2.3 Regulatory “Incomprehensibility”, Impossibility of “Optimal” Rules and Need for Discretion In this perspective, the concept of “regulatory delivery” matters, because it emphasizes an active role of the state in informing and guiding the public, to help them understand what are the rules that apply to their case and how to implement them. This means that “regulatory delivery” is in a certain way an alternative approach to the problem of “incomprehensibility” of

25 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions In Regulatory Inspections cit.

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rules, which continues to be a vexing issue for scholars and practitioners of law and regulation.26 This question of incomprehensibility deserves a discussion, as it strongly relates to trust,27 and raises questions, that are at the core of our topic, i.e. the proper role of regulation and regulatory insti‐ tutions. The back-and-forth of arguments, most of them perfectly valid, between US scholars about incomprehensibility and its potential solutions, points in my view to specific features of the US political, legal, regulatory and constitutional orders – which it may share with other countries, but may not necessarily be of “universal” validity. One of the core drivers of incomprehensibility, as exposed by Wagner,28 is that both private parties and regulators may have incentives to keep rules, comments, disclosures and guidance “incomprehensible” (at least in part or for many) so as to shield themselves from liability (and, I would add, maybe also from political blame). Critics point out that incomprehen‐ sibility may not be the problem, but rather the “complexity of decisions and choices”, as Ben-Shahar puts it.29 As Wagner30 responds, however, while this may be true in some situations, it is clearly not so in all situa‐ tions where incomprehensibility plays a role (and where trust is a prob‐ lem). One of the interesting aspects of this problem is that incomprehensi‐ bility, and possible solutions, are related to the legal, administrative and regulatory systems – with a number of possible systems yielding different situations, and enabling different solutions. To take an obvious example of this, the complexity of contractual claus‐ es (which is one of the key “incomprehensibility” issues in the US discus‐

26 Wendy E Wagner and Will Walker, Incomprehensible!: A Study of How Our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It (Cambridge University Press 2019). 27 Rachel A Potter, 'Incomprehensibility is a Trust Problem' (The Regulatory Review, 31 March 2020) accessed 15 April 2020. 28 Wendy E Wagner, 'Incomprehensibility and the Law' (The Regulatory Review, 30 March 2020) accessed 16 April 2020; Wendy E. Wagner, 'Moving Toward Comprehen‐ sibility In the Legal System' (The Regulatory Review, 7 April 2020) accessed 16 April 2020. 29 Omri Ben-Shahar, ‘The Elusive Pursuit of Comprehensibility’ (The Regulatory Review, 6 April 2020) accessed 17 April 2020. 30 Wendy E Wagner, 'Moving Toward Comprehensibility In the Legal System' cit.

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sions) has been, though not eliminated, effectively rendered largely moot in a number of European countries (of Civil Law tradition) through legis‐ lation mandating the use of standardized clauses (eg for bank loans in France, housing rent in France and Italy, etc.). Some of these contracts (bank loans) may remain very complex and incomprehensible, in practice, but the borrower does not really need to worry about the contents being unpredictable or “out of the ordinary”, as all clauses are standard, and any variation would be struck down by courts. Rental contracts are simpler, but the same logic applies. In this way, the consequences of incomprehen‐ sibility are addressed, at least to a significant extent (still, some borrowers may make an objectively wrong borrowing decision, but not so much in terms of choosing one bank or another, rather in terms of borrowing when they should not). Consumer protection legislation that extends beyond standard terms, and covers for instance “over-indebted” households, serves to further address the problem, by reducing incentives of banks to lend when it is imprudent, because the law may lead to over-indebted bor‐ rowers’ debt being forcibly restructured or partly written off against the bank’s interests. Still, these are particularly strong measures in terms of reduction of market freedom, and they are neither without unintended consequences (eg reduction in housing availability, or lending availability), not without limitations in terms of what areas they may be applied to, and in terms of political or legal feasibility in many countries. There is, however, another way in which the problem can be partly solved or alleviated, which in‐ volves changing the incentives – not by strengthening liability and legal incentives, as Wagner et.al. suggest to do (extending liability for inade‐ quate communication / extending protection for clear and comprehensible one),31 but rather by reducing the reliance on legal instruments. A number of years ago, I had the privilege to organize a small confer‐ ence on regulatory discretion, which had participants from a number of European countries, and helped to illustrate and understand some of the differences in perspectives. The Government Scientific Council of the

31 Wendy E Wagner and Will Walker, Incomprehensible!: A Study Of How Our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It cit.

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Netherlands (WRR) presented a paper,32 prepared in the aftermath of the 2008 financial crisis, and advocating to give regulatory enforcement bod‐ ies more flexibility so they could focus on whether regulatory goals were being met, and avoid “creative compliance” whereby businesses would ef‐ fectively disregard the regulatory objectives, but formally manage to be compliant. Interestingly, several British colleagues were concerned about this possibly meaning exercising regulatory authority without a proper le‐ gal foundation – whereas, in practice, most British regulators already ex‐ ercised authority with a considerable degree of discretion, because of regulation prescribing the obligations of duty holders, and the powers of regulators, in often general, goal-oriented ways, rather than always with very specific prescriptions.33 Thus, substantively, the proposals of the WRR and the experience of the British regulators (e.g. in Occupational Health and Safety) was not necessarily very different, but the way the “risk-based and outcomes-focused discretion” was worded, and the legal basis that were required, were country- and legal-tradition-specific. The elusiveness of the quest for an “optimal precision of administrative rules” (or of regulations, more generally) has been rather convincingly demonstrated as early as 1983 by Diver,34 who summarized that there were “inevitable trade-offs among transparency, accessibility and congru‐ ence”. Baldwin,35 building on Diver, concluded to practically unavoidable “errors of inclusiveness” – that “discourage desirable activity (through over-inclusiveness) or (…) fail to rule out undesirable activity (through under-inclusiveness)”. He extensively discusses the question of rule-de‐ sign, and questions the possibility to find an “optimal” degree of rule pre‐ cision,36 suggesting then “how such problems [of inclusiveness] may be dealt with during the compliance-seeking process”,37 ie that “an alterna‐ tive response is to write rules that devolve discretion down to enforcers so that issues of inclusiveness are dealt with by selective enforcement”, eg the famous example of UK health and safety rules based on the notion of

32 Wetenschappelijke Raad voor het Regeringsbeleid, Toezien op Publieke Belangen: Naar Een Verruimd Perspectief op Rijkstoezicht (Amsterdam University Press 2013). 33 Particularly the case for the UK OHS Act 1974. 34 Colin S. Diver, ‘The Optimal Precision of Administrative Rules’ cit., 108-109. 35 Robert Baldwin, Rules and Government cit., 177. 36 Ibid. 176-181. 37 Ibid. 181.

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“so far as is reasonably practicable”.38 This, in turn, puts the onus on avoiding both capture and abuse, being attentive to enforcement styles and structures, considering which tools and methods will be used. 2.4 Discretion, “Corruption”, Trust and Distrust The issue of regulatory discretion leads us back to the main motives that have been behind efforts to reduce and curtail such discretion since the 1960s-70s or even earlier: fighting against different types of “corruption” of regulation and enforcement. Here, “corruption” is taken in the broadest sense: misuse and abuse of rules and power, and voiding them of their in‐ tent, be it through excessive, arbitrary use of power, or through payments, gifts or other meant to avoid application of the rules. Rigid requirements and procedures have been imposed to avoid “capture” by economic opera‐ tors,39 but also to protect citizens and businesses from regulatory over‐ reach.40 Efforts to reduce regulatory discretion are usually based in distrust of the regulators, regulatory staff, and of those they interact with. This is not to say that such distrust is necessarily without foundation – but ever-in‐ creasing decreases in discretion and increases in constraints on regulators tend to devolve in “regulatory unreasonableness”41 on the one hand, and in “defensiveness” on the other.42 In other words, decreasing discretion and imposing rigid process rules on regulators does not improve achieve‐ ment of regulatory objectives, but increases formalistic behaviour. If, as we will make the case in the next section, formalistic delivery of regu‐ lation may in fact decrease effectiveness – and, as already found by many

38 Ibid. 184. 39 US OSH Act 1970, see Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit., 278-283. 40 Starting from the Administrative Procedures Act 1946 to efforts to “regulate” reg‐ ulators in Eastern Europe and the Former Soviet Union, see Florentin Blanc, ‘Moving Away from Total Control in Communist Countries: The Risk Regulation Reflex in Inspections and Lessons Learned from Reforming Them’ (2012) in European Journal of Risk and Regulation, 3, 3, 327. 41 Eugene Bardach and Robert Kagan, Going By the Book. The Problem of Regula‐ tory Unreasonableness (Temple University Press 1982). 42 Doing exactly what you are supposed to and how it is supposed to, no initiative etc.

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studies,43 it increases “unreasonable” characteristics and thus decreases le‐ gitimacy of regulations and regulators – then there is reason to think that these gradual restrictions of regulatory discretion lead to increased dis‐ trust. In other words, initial distrust of regulators may breed more general distrust. This is not to say, far from it, that boundless trust or deference should be extended to regulators, or that their practices and behaviour are neces‐ sarily optimal.44 There are many ways in which regulators or other en‐ forcement structures (including, notoriously, the police) can be prone to abuses of power and/or capture and corruption. These can be linked in‐ deed to the absence of adequate regulation of these enforcement powers, and of legal liability, but generally stems from a combination of factors: resources (total) and pay (individual), incentives (individual, pay or career – or collective, ie funding of the institution), institutional structure, pre‐ vailing culture (in-organization and more broadly), recruitment and train‐ ing practices, internal methods, processes, and tools, etc.45 Emphasizing regulations that decrease discretion, to the exclusion of other considera‐ tions (or at least far more than other aspects), may result in “distrust breeding distrust”, rather than on a positive effect of reduced capture, re‐ duced corruption, and increased trust. 3. Risk Perceptions, “Cycle of Distrust” and Regulatory Effectiveness Far from there being a simple, one-way relationship between rules and trust, whereby more stringent rules and stricter enforcement would ipso

43 Eugene Bardach and Robert Kagan, Going By the Book. The Problem of Regula‐ tory Unreasonableness cit.; Tom R. Tyler, Why People Obey the Law (Yale Uni‐ versity Press 1990); Tom R. Tyler, ‘Procedural Justice, Legitimacy, and the Effect‐ ive Rule of Law’ (2003) in Crime and Justice, 30, 283; Kees Van Den Bos, Lynn Van Der Velden and E. Allan Lind, ‘On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Conflicts’ (2014) in Utrecht Law Review, 10, 4, accessed 22 April 2020. 44 Florentin Blanc, ‘Moving Away from Total Control in Communist Countries: the Risk Regulation Reflex in Inspections and Lessons Learned from Reforming Them’ (2012) in European Journal of Risk and Regulation, 3(3), 327. 45 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit., 125-127, 144-146.

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facto deliver greater trust, there is thus reason to suspect that the dynamics are far more complex. Distrust-driven regulatory rigidity may in fact lead to increasing distrust, or at least there is a clear mechanism of how this might happen. It is worth now attempting to “unpack” further some of the drivers and mechanisms that seem to be at play in creating a “cycle of dis‐ trust” (and, conversely, in what elements may be relevant to move towards a “cycle of trust”). 3.1. Perceptions, Expectations, and Distrust If we go back momentarily to the starting point of the “regulation and trust” discussion, which is that regulation is expected to address a trust is‐ sue on the side of consumers or citizens towards suppliers or economic operators more broadly, then the demand for regulation on this basis would be intrinsically linked to the perception of harms and risks. Indeed, while of course perceptions relate to some extent to actual harms and risks as can be quantified in terms of lives lost, health effects, financial and eco‐ nomic impact etc., they are in no way linked to these in a linear way. Moreover, the very scope of what harms, risks etc. drive the demand for regulation is itself quite complex. Individual priorities (regardless of the “individual” vs. “social” determi‐ nants of them), or what in economic language may be called “utility val‐ ues”,46 can diverge greatly from one person (or group) to another. Protec‐ tion of certain ways of life or landscapes, or other values (equality, reli‐ gious values, etc.) may, for some, hold important value, alongside health, safety, and protection of one’s economic interests. Regulatory demand, if it can be so defined (and imagining it could be measured), would be the result of the combination of these different values, expectations, priorities. In turn, it would not be, whether in its intensity or regarding the specific objects of regulation being emphasized (or the specific objectives being sought), the direct translation of a quantitative assessment of the harm or risk, not even for these elements for which such harm or risk can be calcu‐ lated. Said differently: assuming we could have reliable data on demands for regulation implicitly held by a population, even for one particular area

46 Ali E. Abbas, Foundations of Multiattribute Utility (Cambridge University Press 2018).

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(say, environmental health), they would not match (in intensity of choice of specific objects) the outcomes of a scientific assessment of harm and risk in the same field. This bears emphasizing, and is distinct from the fact that such a scientific assessment is itself not only complex to realize, but also subject to varying degrees of uncertainty. To quote Slovic47, taking the example of nuclear energy, risk perception research demonstrates that “people's deep anxieties are linked to the reali‐ ty of extensive unfavourable media coverage” and “perceptions and atti‐ tudes are determined not only by (…) unidimensional statistics (…) but also by [a] variety of quantitative and qualitative characteristics”. He adds that “risk concerns may provide a rationale for actions taken on other grounds or they may be a surrogate for other social or ideological con‐ cerns”.48 In other words, what gets formulated as concerns about risks may in fact reflect other issues, including (I would add) potentially issues of trust towards, and legitimacy of those that are officially in charge of as‐ sessing and regulating risks. In Wagner’s view, “consumers tend to overre‐ act to any evidence of risk, however minimal” – which, in turn, makes it difficult for disclosure-based regulation to function well, because manu‐ facturers have a strong incentive to not disclose (or hide, obfuscate etc.) serious risks: “given the media firestorm resulting from the discovery of trace amounts of benzene in Perrier water and Alar-tainted apples, for ex‐ ample, it is not surprising that manufacturers are gun-shy about learning about potential risks associated with their products (even if these risks are small)”. 49 Governments, public administrations, and regulators ‘in general’ are subject to a variety of conflicting expectations and irreconcilable de‐ mands. In the case of agencies and services in charge of “regulatory deliv‐ ery”, these can be formulated as follows:50 all risks should be addressed, all harm should be prevented, everything should be controlled, but also burden should be minimized, paperwork should be abolished, every offi‐ 47 Paul Slovic, ‘Perception of Risk’ cit., 280, 285. 48 Ibid. 285. 49 Wendy E Wagner and Will Walker, Incomprehensible! A Study of How our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It cit., 135. 50 Florentin Blanc, ‘Moving Away from Total Control in Communist Countries: the Risk Regulation Reflex in Inspections and Lessons Learned from Reforming Them’ cit., 327; OECD, Regulatory Enforcement and Inspections cit.; Graham Russell and Christopher Hodges, Regulatory Delivery cit.

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cial should be “reasonable”. Resources should be always sufficient, but of course taxes should not increase, at least not on myself. In a nutshell, dif‐ ferent parts of society, but also often one and the same people or groups, demand both “total control” and “no bureaucracy”, as well as “infinite re‐ sources” but “not too costly” (and/or demand infinite resources for every‐ thing else too). The problem is not only one of holding together incompat‐ ible, opposite extremes – but also that a total effectiveness of control, or indeed any effective form of “universal control”, is probably just as intrin‐ sically impossible as a “total absence of bureaucracy” (or at least a total absence of “authority, which at some stage I will find burdensome or un‐ reasonable”, because a totally “free”, non-bureaucratic authority is likely to be also very much arbitrary). Rising public pressure and concern regarding some risks, preconcep‐ tions among policymakers about “what works” to achieve policy objec‐ tives (favouring rigidity and “strict” enforcement, regardless of research and data), or the successful lobbying of certain groups touting their risk perceptions or discourse as representative of the majority, have resulted in a certain number of cases in making both regulations and the behaviour of regulatory delivery services more rigid, limiting discretion, increasing “criminalization” of non-conformities, and generally placing the affected area of regulation upon a pedestal of “absoluteness”. Alas, not only is such pedestal one from which it is hard not to fall in any case, but precisely such rigidity tends to deliver, as I discuss in the next section, worse out‐ comes. As such, it generally tends to result in a situation where the target‐ ed risks worsen or at least do not specifically improve, whereas they have been presented as “all important” (regardless of the objective starting situ‐ ation), and where non-compliances or other failures will systematically be presented by the media (and the authorities, often) in criminal terms, thus further increasing the perception of “runaway risk”. In other words, such a distrust-based treatment of risks and regulatory structures (whereby their discretion is severely curtailed because they are deemed to be prone to capture or corruption) tends to lead to worse outcomes and heightened perception of risk and criminal activity, in turn further increasing distrust. 3.2. Effective Regulatory Delivery This is not the place for a detailed discussion of regulatory effectiveness, and of the outcomes observed with different regulatory approaches, but I 322

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have to summarize some of the key findings of relevant research and pub‐ lication on this point, as the question directly bears to the discussion of trust and regulatory delivery. I have exposed elsewhere in some detail how, with legislation that is substantially the same or very similar, and in contexts that are highly comparable, different regulatory delivery systems can contribute to sharply diverging outcomes.51 As illustrated by the ex‐ ample of occupational safety and health, but also backed up by a number of studies for instance on tax compliance,52 strongly “repressive” ap‐ proaches tend to perform less well in terms of improving compliance and reducing risks. By contrast, systems, which emphasize support to volun‐ tary compliance, responsiveness,53 use of diverse and complementary tools, risk-proportionality etc. tend to perform better. As van Rooij has shown, compliance is complex, driven by many fac‐ tors, evolving, situation- and context-specific, and difficult to measure54 and deterrence is an insufficient tool to address serious non-compliances linked to “toxic corporate culture”.55 Hodges has similarly shown the in‐ trinsic limitations of a deterrence-based approach, and the ways through which an approach based on assessing and changing the internal values in‐ side companies can have more effect.56 In turn, these findings build on over 40 years of research on drivers of legitimacy and compliance, in par‐

51 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit.; Florentin Blanc, ‘Tools for Effective Regulation: Is “More” Always “Better”?’ (2018) in European Journal of Risk Regulation, 9, 3, 465; Florentin Blanc and Giuliana Cola, ‘Risk-based Prioritisa‐ tion’ in Graham Russell and Christopher Hodges (eds), Regulatory Delivery cit. 52 Erich Kirchler and Erik Hoelzl, ‘Modelling taxpayers’ Behaviour as a Function of Interaction between Tax Authorities and Taxpayers’ in Henk Elffers, Peter Ver‐ boon and Wim Huisman (eds), Managing and Maintaining Compliance (Boom Legal Publishers 2006). 53 Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Dereg‐ ulation Debate (Oxford University Press 1992). 54 Yunmei Wu and Benjamin Van Rooij, ‘Compliance dynamism: Capturing the Polynormative and Situational Nature of Business Responses to Law’ (2019) in Journal of Business Ethics accessed 24 April 2020. 55 Benjamin Van Rooij and Adam Fine, ‘Toxic Corporate Culture: Assessing Organi‐ sational Processes of Deviancy’ (2018) in Administrative Sciences accessed 26 April 2020. 56 Christopher Hodges, Law and Corporate Behaviour: Integrating Theories of Regulation, Enforcement, Compliance and Ethics (Hart Publishing 2015); Christo‐

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ticular on procedural justice,57 which have repeatedly shown the impor‐ tance of other factors than deterrence in building compliance (particularly longer-term, voluntary compliance), and also how excessively rigid, dis‐ proportionate enforcement, could in fact lower overall compliance by harming citizens’ sense of procedural justice. In past publications, I have looked in details at the practice and out‐ comes of occupational safety inspections and regulatory delivery in France, Germany and Great Britain.58 This work already showed how a more rigid, “repressive” approach, based on systematic distrust of busi‐ nesses, as applied in France, in fact seemed to result in worse safety out‐ comes, even with a significantly higher rate of controls than in Britain. In the perspective of this inquiry into the mechanisms of growing distrust to‐ wards regulatory systems, and while I cannot of course go into the same level of details within this chapter’s scope, it is worth looking briefly at the situation and outcomes in Italy, given how strongly affected the coun‐ try (and its regulatory delivery institutions and practices) have been by “distrust-based” legislation.59 An ongoing (pending publication in 2021 as part of the new Regulatory Policy Outlook) study of inspection resources in Italy and other countries, led by the OECD, estimates (as regional data is still incomplete, and most

pher Hodges and Ruth Steinholtz, Ethical Business Practice and Regulation. A Be‐ havioural and Values-Based Approach to Compliance and Enforcement (Hart Pub‐ lishing 2017). 57 Tom R. Tyler Why People Obey the Law cit.; Tom R. Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’ cit., 283-357; Kees Van Den Bos, Lynn Van Der Velden and E. Allan Lind, ‘On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Con‐ flicts’ cit.. 58 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions In Regulatory Inspections cit.; Florentin Blanc, ‘Tools for Effect‐ ive Regulation: Is “More” Always “Better”?’ cit., 465; Florentin Blanc and Giu‐ liana Cola, ‘Risk-based Prioritisation’ cit. 59 Decree Law no. 81/2008 on Occupational Health and Security (Testo Unico sulla Salute e Sicurezza sul Lavoro); Donata Maria Gottardi, Legal Framework: Lavoro e Legalità nella Società dell'Inclusione (Giappichelli Editore 2017), 160-161; Is‐ pettorato Nazionale del Lavoro, ‘Monitoraggio dei Provvedimenti di Sospensione dell'Attività Imprenditoriale’ (2019). accessed 2 May 2020; Ispettorato Nazionale del Lavoro, ‘Rapporto Annuale dell’Attività di Vigilanza in Materia di Lavoro e Leg‐ islazione Sociale’ (2019).

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inspectors are employed by regional services and Aziende Sanitarie Lo‐ cali) that there are over 3,500 inspectors (or full-time equivalents) in charge of occupational safety in Italy, possibly up to around 4,00060, which means that available resources would be significantly higher than in our 3 comparator countries (France, Germany, and Britain), whereas both total population and employed population are lower. Indeed, Germany (adding Länder and “mandatory insurers” inspectors) has around 3,500 in total (Baua)61, while many Länder inspectors also inspect other areas than occupational safety and health. France has slightly over 2,000 in the Labour Inspection62 (but they inspect also labour law, and spend rather more time on it than on occupational safety), and an unreported number in regional medical insurance structures, which we can estimate at no more than 500 or 60063 – hence a total of 2,600 at most, not-full-time on occu‐ pational safety. After 10 years of austerity, Britain has far less (1,060 in the Health and Safety Executive,64 540 in Local Authorities65), but even in

60 This uncertainty in the exact number is because it has not yet been possible to col‐ lect data for all regions, and thus the national number combines national level data from the Labour Inspectorate (full number of inspectors pro-rated by the share of all inspections that focus on occupational safety, which amount to approximately 1/8 of the total for the L.I.), National Institute for Occupational Accident Insu‐ rance (INAIL), Special Command of the Carabinieri for OSH, and an estimate of the inspectors working in regional services, extrapolated from data for Lombardy, Sicily and Trentino-Alto-Adige. Full details are available upon request. 61 BAUA, ‘Sicherheit und Gesundheit bei der Arbeit: Berichtsjahr 2018’ (2020) 133, 136 accessed 5 May 2020. 62 Ministère du Travail, ‘L’inspection du travail en France en 2017’ (2019), 5 accessed 6 May 2020. 63 Based on the number of inspections conducted by the CARSATs: See Blanc n(7) 235. 64 Health and Safety Executive, ‘HSE Annual Report and Accounts 2018/2019’ (House of Commons, 2019), 75 accessed 6 May 2020. 65 All-Party Parliamentary Group on Occupational Safety and Health, Local Authori‐ ties and health and safety’ (All-Party Parliamentary Group on Occupational Safety and Health, 2018), 5 accessed 5 May 2020.

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2010, before austerity, it had no more than 2,500 inspectors in total.66 Thus, Italy has (and had) significantly more occupational safety inspection resources than France and Britain, and more than Germany even, whereas it has a lower working population (particularly if compared to Germany). Table: comparison of number of OSH inspectors and total active population Total active population67

Country

Number of inspectors in OSH (esti‐ mate, 2018-2020)

France

2,000-2,600

29,68 million

Germany

3,500

43,77 million

Italy

3,500 - 4,000

25,94 million

United Kingdom

1600

33,96 million

In terms of practice, very interestingly, Italy has the majority of its occu‐ pational safety inspectors working for the local authorities (regional coor‐ dination, inspectors employed by the Aziende Sanitarie Locale, ie the local health trusts that manage both health care and preventive health), with a background in terms of training, and an institutional culture, that are far closer to preventive health, environmental health, food safety etc. than to a more rules-focused labour inspection culture, as prevalent in France (or in the Italian Labour Inspectorate itself). Having conducted interviews and workshops with them in several regions, and studied their practices,68 it is visible that many of them have an approach to integrated risk assessment and management, preventive work, compliance promotion and education, that is far closer to what Hawkins (2002) and others have described in Britain,69 than to the “distrust-based” approach prevalent in the French in‐ spectorate. Still, they are severely constrained by legislation that gives 66 Health and Safety Executive, ‘The Health and Safety Executive Annual Report and Accounts 2010/2011’ (House of Commons, 2011), 25 accessed 5 May 2020; All-Party Parliamentary Group on Occupational Safety and Health, ‘Local Authorities and health and safe‐ ty’ (All-Party Parliamentary Group on Occupational Safety and Health, 2018), 5 accessed 5 May 2020. 67 Information relative to the four countries have been retrieved from the OECD Website. OECD, ‘Labour Force (Indicator)’ (OECD Data 2020) accessed 1 June 2020. 68 Some findings will be reflected in the forthcoming OECD Regulatory Policy Out‐ look, forecast 2021. 69 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit.

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them absolutely no discretion in terms of enforcement: any violation iden‐ tified should be forwarded to the competent Public Prosecutor’s Office, for them to decide on whether to initiate prosecution.70,71 All inspectors and service managers I have discussed with assessed these constraints very negatively, reporting that it forced them to report violations (possibly leading to criminal prosecution) even for honest mistakes, minor noncompliances causing little or no risk, etc. It also made it very difficult for them to establish a trust-based relationship, engage positively with busi‐ nesses to improve compliance, as businesses know that regardless of how hard they try to “do the right thing”, they will not be treated any different‐ ly if any (regardless how minor) non-compliance is found in future. Thus, the regional Italian occupational safety services are torn between their own culture and professionalism (trust- and compliance-promoting), and legislation that is rigid and distrust-based. Unfortunately, at present there is no consolidated data on the number of inspections conducted for occupational safety in Italy (as data has to be collected for each region separately). Given the important level of resources, however, it is to be ex‐ pected that the total number of inspection visits will be higher than for any of our comparators (France, Germany or Britain) – while many of these visits are reactive, driven by requests for inquiries by Prosecutors’ Offices. In terms of outcomes (as exposed elsewhere72 – I use only fatal accidents to avoid biases in reporting), however, while Italy performs less poorly than France (possibly reflecting the far greater efforts of regional and local services on risk-based prevention and compliance promotion), Italy still has a far higher fatal accident rate, not only than Britain and Germany, but than the average for both EU-15 (“old”, “richer” members) and EU “at

70 New norms in Criminal Labor Law (Nuove Direttive in Materia di Diritto Penale del Lavoro) accessed 5 May 2020; Decree Law no 81/2008 on Occupational Health and Safety (Testo Unico sulla Salute e Sicurezza sul Lavoro) accessed 5 May 2020. 71 To the Legislative Decree no 81/2008 it is necessary to add the Legislative Decree 231/2001 and the art 589 and 590 of the Criminal Code as well as the references in the Civil Code. 72 Laura Tilindyte, Enforcing Health and Safety Regulation. A comparative economic approach (Intersentia 2012); Florentin Blanc, ‘Tools for Effective Regulation: Is “More” Always “Better”?’ cit., 465; Florentin Blanc and Giuliana Cola, ‘Riskbased Prioritisation’ cit.

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large”. is true bothpositive for selected and when we (which, con‐ Italy has not This delivered strongly outcomes.individual While it has years, outperformed the French

siderthere the are 10-years In other spite significantly higher though no “hard average. data” indicators here) iswords, probablyin even moreof “distrust-based”, it has clearly resources and likely “intensity” of controls, and in spite of the profession‐ lagged system which are more trust-promoting, and leave far more discretion to inspectors, such as alism of a significant number of inspectors, the occupational safety inspec‐ Germany’s and Britain’s. tion system in Italy has not delivered strongly positive outcomes. While it has outperformed the French (which, though there are no “hard data” indi‐ Chart: Standardised of fatal occupational incidents (for 100,000 workers) selectedlagged countries cators here) isincidence probably even more “distrust-based”, it has inclearly and in the European Union system which are more trust-promoting, and leave far more discretion to 02.pdf inspectors, such as Germany’s and Britain’s. Chart: Standardised incidence of fatal occupational incidents Chart: Standardised incidence of fatal occupational incidents (for  (for 100,000 workers) in selected countries and in the European Union 100,000 workers) in selected countries and in the European Union 9,0 8,0 7,0 6,0 5,0 4,0 3,0 2,0 1,0 0,0 2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

average

European Union ‐ 27 countries (2007‐2013)

European Union ‐ 15 countries (1995‐2004)

Germany (until 1990 former territory of the FRG)

France

Italy

United Kingdom

In other words, there is a strong point to be made that “distrust-based”, reactive regulatory delivery,

In other words, there is a strong point to be made that “distrust-based”, re‐ active regulatory delivery, based primarily on use of criminal law, triggers administration and among regulated entities and persons, raises the visibility and salience of infractions a “defensive” attitude both within the public administration and among to the rule regardless of their actual prevalence or seriousness (because they have all been regulated entities and persons, raises the visibility and salience of infrac‐ “criminalized” and thus are reported as “crimes”, and perceived as such by the public), all while not tions to the rule regardless of their actual prevalence or seriousness (be‐ leading to better regulatory outcomes (compliance, safety etc.), but rather (all other things being equal) cause they have all been “criminalized” and thus are reported as “crimes”, toand significantly worse turn,public), to the extent public perceptions in partregula‐ the actual perceived asoutcomes. such byInthe allthat while not leadingreflect to better based primarily on use of criminal law, triggers a “defensive” attitude both within the public

(quantifiable) state of safety, health, etc., such worsening of outcomes will definitely not improve trust,

73 EU-27 pre-Croatia accession and post-Brexit, EU-28 in between, with averages being quasi identical.

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tory outcomes (compliance, safety etc.), but rather (all other things being equal) to significantly worse outcomes. In turn, to the extent that public perceptions reflect in part the actual (quantifiable) state of safety, health, etc., such worsening of outcomes will definitely not improve trust, and is likely to further decrease it. I thus suggest that, to the extent that there is a real “crisis of confidence” (or a growing salience of the lack of confi‐ dence, which in the end results in the same, regardless of whether the change has been sudden or not), it is to a significant extent linked to regu‐ lation, driven by specific regulatory design and regulatory delivery sys‐ tems, and sees a “cycle of distrust” whereby the most “distrust-based” sys‐ tems (limiting discretion of civil servants, emphasizing criminal sanctions etc.) lead to worse results and more distrust, rather than help to restore confidence. 4. Conclusion With such a broad a topic, so many ramifications and factors, this chapter can only provide a first overview, the start of a discussion, and tentative findings. Still, the issue matters enough that even such a provisional con‐ clusion can potentially contribute to starting to solve this “crisis of confi‐ dence”. The gist of the argument is that regulations and regulatory systems are established, or at least so it is assumed and/or proclaimed, in order to strengthen, enable, (re)establish trust – but that they may sometimes be worse than failing at the task, but even actively increasing distrust. Part of this failure is clearly rooted in regulatory design – how the rules are drafted, more specifically what approach is taken to regulating a cer‐ tain issue. To take an example, the discussion of environmental rules in Wagner and Walker,74 and their demonstration of the disincentives it cre‐ ates for “meaningful disclosure”, is perfectly applicable to a certain type of environmental rules, ie those that apply in the US, developed and adopt‐ ed by the Environmental Protection Agency (EPA) on the basis of a num‐ ber of Acts of Congress (particularly, for Wagner and Walker’s discussion,

74 Wendy E Wagner and Will Walker, Incomprehensible! A Study of How our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It cit.

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the Toxic Substances Control Act).75 Indeed, Wagner and Walker, rather convincingly expose how the applicable US system gives strong incen‐ tives for manufacturers of chemicals to avoid “meaningful disclosure” (and to avoid revealing all that they know, or even researching all poten‐ tial effects of their products), while it also gives them leeway to not dis‐ close certain components under a “trade secrets” defence, and puts all the burden of proof of potential harm of given substances on the regulator, with strict judicial scrutiny, and a task that clearly exceeds available re‐ sources.76 By contrast, with common EU legislation and some relatively widely shared features of administrative tradition, EU member states have an en‐ vironmental legislation framework (even more so since the entry into force of the REACH directive)77 that gives significantly more regulatory discretion to regulatory bodies, does not allow manufacturers to restrict in‐ formation to the regulator based on “trade secrets”, and overall entrusts regulators with far more leeway to regulate specific chemicals based on available data, including when gathered in other countries or previous studies of similar chemicals etc., ie reduces considerably the cost and complexity of providing evidence.78 The failure also originates, however, into how the regulatory system is set up in terms of institutions, methods, discretion, sanctions etc. The adoption of federal legislation on Occupational Safety and Health (OSH) in the US in 1970, and thus the creation of the Occupational Safety and Health Administration (OSHA), were made under the auspices of a reform movement that focused on what it saw as “capture” of regulatory efforts by the private sector, and emphasized rigid rules, strict enforcement, ab‐

75 The Toxic Substances Control Act of 1976 accessed 8 May 2020. 76 Wendy E Wagner and Will Walker, Incomprehensible! A Study of How our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It cit., 134-137. 77 European Chemicals Agency, ‘Understanding REACH’ (2020) accessed 8 May 2020. 78 Michael Faure, Peter de Smedt and An Stas, Environmental Enforcement Net‐ works: Concepts, Implementation and Effectiveness (Edward Elgar 2015); Martin Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (2nd edn, Routledge 2015); Peter G.G. Davies, European Union Environmental Law: An introduction to Key Selected Issues (Routledge 2017).

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sence of discretion.79 This led to the famous “regulatory unreasonable‐ ness” issue,80 which may have contributed to the long-term breakdown of consensus regarding OSHA legitimacy and funding, which have harmed the agency’s effectiveness.81 In any case, overall occupational safety lev‐ els in the US are measurably worse than in comparable countries in terms of development level, and this certainly does not vindicate the approach initially taken. Italy provides another interesting example of the effects of “distrustbased” reforms of public administration. For a couple of decades, succes‐ sive reforms, ostensibly responding to the growing recognition of the strength of organized crime and the harm done by corruption, have limited regulatory discretion, put the public administration as a whole and each in‐ dividual public servant under strict scrutiny, imposed rules such as regular rotation of officials and managers, foreseen severe criminal sanctions for “omission of official action” in case officials were thought to be insuffi‐ ciently strict in applying rules, and “criminalized” many regulatory viola‐ tions, often entire areas of legislation (eg all OSH and environmental vio‐ lations are ipso facto to be treated as criminal offences). In 2014 already, De Benedetto concluded that the idea that corruption (in all forms) could be effectively controlled through more “controls” was at best disputed and debatable.82 She also rightly points out in a further elaboration83 that preventing corruption can run into major risks, particu‐ larly if it focuses too much on “end stage” detection and punishment, rather than approaching the corruption issue as a complex, social phe‐ nomenon. She lists as major risks the possibility that prevention is more “window dressing” than effective, that anti-corruption rules produce more bureaucracy (which in turn actually sustains corruption), and finally that it makes it harder to recruit and retain competent and honest public servants.

79 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions in Regulatory Inspections cit., 309-312. 80 Eugene Bardach and Robert Kagan, Going By the Book. The Problem of Regula‐ tory Unreasonableness cit. 81 Florentin Blanc, From Chasing Violations to Managing Risks: Origins, Challenges and Evolutions In Regulatory Inspections cit., 309-312. 82 Maria De Benedetto, ‘Is It Possible To Prevent Corruption Via Controls?’ (2014) in Amicus Curiae: Journal of the Institute of Advanced Legal Studies and its Soci‐ ety for Advanced Legal Studies, 100, 6, 6. 83 Maria De Benedetto, ‘Corruzione e Controlli: Una Introduzione’ in Marco d’Al‐ berti, Corruzione e Pubblica Amministrazione (Jovene Editore 2017), 379.

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As she elsewhere formulates it, “the system of controls should be sustain‐ able”.84 By contrast, the burden and rigidity created by excessively “distrustbased” systems, notionally created as “anti-corruption” (but not necessar‐ ily effective) appears dangerously unsustainable. To the three risks identi‐ fied by De Benedetto, we would add that, which we have attempted to de‐ scribe above: poorly designed anti-corruption policies, implemented rigid‐ ly, can increase distrust and destroy confidence. Because they lack focus and “cast their net too wide”, they flag as potentially corrupt many harm‐ less activities, or mark as “criminal” a number of unintentional or relative‐ ly harmless violations. They thus make it seem that the scope of criminal activities is far larger than it really is, and active enforcement, regardless of real effectiveness at reducing risks and harm, will yield an ever-increas‐ ing number of violations formally treated as criminal. In the end, not only does such a system create terrible costs for those who attempt to comply with the law. Purely criminal operators anyway, by definition, operate out‐ side of the law – and making the law more rigid and costly to comply with does not harm them, but only increases their “competitive advantage” over law-abiding ones.85 Competent and ethical public servants get discouraged by the impossibility to work correctly within formalistic, “unreasonable” rules, and by mandatory rotations imposed by anti-corruption legislation, which regularly puts in place managers with little relevant experience, while sending elsewhere experienced and competent ones.86

84 Maria De Benedetto, ‘Corruption and Controls’ (2015) in European Journal of Law Reform, 17(4), 479, 489. 85 For a number of illustrations of the limits in the effectiveness of various anti-cor‐ ruption reforms see e.g. Antonella Massaro and Martina Sinisi, Trasparenza nella P.A. e Norme Anticorruzione: Dalla Prevenzione Alla Repressione (Roma Tre Press 2017). 86 Law no 190/2013 on 'Disposizioni per la Prevenzione e la Repressione della Cor‐ ruzione e dell'Illegalità nella Pubblica Amministrazione’. Article 1, comma 5, let‐ ter b) of the above mentioned piece provides that the national anticorruption plan defines the criteria for ensuring the rotation of civil servants who work in the sec‐ tors more exposed to corruption. Moreover, article 1, comma 10, letter b) of the above mentioned law provides that the responsible for the prevention of corruption must verify the effective rotation of the assignments in the offices dealing with high corruption risk areas. Finally, art. 1, co. 4, lett. e) of the same law provides that the National Anticorruption Authority (ANAC) defines the criteria that public administrations need to follow for the rotation of public servants.

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The “rigidification” and increasing “criminalization” of Italian adminis‐ trative law that has taken place over the past 30 years came in response to what was (largely correctly) perceived as a breakdown of the rule of law, the unveiling of the scope of organized crime through late 1980s court cases,87 and an upwell of public opinion demanding reform. This led ie to changes in the criminal code, reforming art. 328 about “omission or re‐ fusal of official acts”, which post-1990 gave the judiciary a stronger and clearer instrument to control the activities of the public administration, and specifically limit their discretion not to act. This is particularly important because, in the face of outdated or excessively broad norms, or of rules, which, if applied in a specific case, would have patently absurd or exces‐ sive consequences, many legal systems have given and still give discretion to the public administration not to act. In France, this is usually under‐ stood to be allowed under the “pouvoir d’appréciation” of the administra‐ tion, in particular when the application of a given rule would result in patently inadequate or harmful consequences, except in cases where posi‐ tive law excludes discretion.88 In Italy, such discretion not to act has been severely restricted post-1990, an evolution further compounded by the criminalization of many regulatory violations, which has meant that offi‐ cials have an absolute obligation to report them to prosecutors.89 Discretion, clearly, is not without its own, plentiful and severe pitfalls. Its total exclusion may, however, be even worse. Excessive trust and le‐ niency, likewise, is certainly dangerous, but a regulatory regime founded exclusively on distrust may end up “devouring itself”, with an unending cycle of increasing distrust. There is probably no single, certain cure to the problems of effectiveness, corruption, capture, and trust, related to public administration and corruption. Recruitment, structures, incentives, checks and balances, culture, methods, all matter. Discretion should be bounded,

87 Tribunale di Palermo v. Abbate Giovanni + 706 (1987); Giovanni Falcone, Cose di Cosa Nostra (Rizzoli, 1993); Alison Jamieson, The Antimafia (MacMillan 2000). 88 Pierre Tifine, ‘Droit Administratif Français: Sanction du Principe de Légalité’ (2013) ch. 2 Revue générale du droit online numéro 4342 accessed 8 May 2020. 89 Decree Law n. 152/2006 on Environmental Standards (Testo Unico Ambientale); Decree Law n. 81/2008 on Occupational Health and Security (Testo Unico sulla Salute e Sicurezza Sul Lavoro) accessed 9 May 2020.

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based on proper understanding and definition (within the public adminis‐ tration and the judiciary) of risk and proportionality, but it should not be excluded. Trust should never be absolute or unchecked, and (truly) crimi‐ nal activities should be strongly punished – but, at the same time, compli‐ ance should be encouraged, proportionality should be the guiding princi‐ ple. Crucially, in a time when technical regulations are so numerous and complex, cover so many aspects, it should be understood that by definition the majority of violations will be unintentional – whether they result from ignorance, incompetence, or the limits inherent to any organization in get‐ ting every single worker to follow every rule at every moment. Maintain‐ ing and strengthening confidence and trust is crucial to longer-term devel‐ opment and prosperity90 – building regulatory systems on distrust appears as a sure way to fail on every count.

90 Guido Tabellini, ‘Culture and Institutions: Economic Development in the Regions of Europe’ (2010) in Journal of the European Economic Association, 8, 4, 677; Daron Acemoglu and James A Robinson, Why Nations Fail: The Origins of Pow‐ er, Prosperity, and Poverty (Paperback 2013).

334

Law as Scapegoat Cary Coglianese*

Summary: 1. Introduction – 2. The Crisis in Legal Confidence – 3. Scape‐ goating Law - 4. Brexit and Legal Scapegoating - 5. Brazil, Bolsonaro, and Bullying the Law - 6. Donald Trump’s Assault on U.S. Law - 7. The Political Economy of Legal Scapegoating - 8. How Laws Are Like Mi‐ grants - 9. The Consequences of Legal Scapegoating - 10. Implications for Action and Research – 11. Conclusion 1. Introduction Around the world, public trust in governmental institutions and legal sys‐ tems has been wavering for years. In this period of declining trust, pop‐ ulist and nationalist demagogues have emerged in many countries to make nostalgic appeals and sow racial and ethnic division.1 These populist lead‐ ers also often advance policies that retreat from both global engagement and democratic commitments, leading their countries on paths toward market isolationism and authoritarian government. The causal connections between decreasing public trust and increasing populism are complex and interactive. Decreased trust and confidence in government provides a fertile soil within which populism grows, but pop‐ ulist leaders can themselves stoke fires of distrust and discord, exacerbat‐ ing crises of public confidence rather than working to maintain or restore faith in institutions of governance. A particularly sinister way that populist leaders can seek to fuel public distrust is by treating the law itself as a

* The author is grateful for valuable comments and conversations with Nicoletta Ran‐ gone, Maria De Benedetto, and conference participants. He appreciates helpful re‐ search assistance by Isabella Fierro, Ben Meltzer, Roxanna Pasquier, Emma Ronzetti, Madeleine Vaziri, and Roshie Xing. Special thanks go to Emma Ronzetti for truly stellar and extensive assistance in preparing of this chapter. 1 Pippa Norris and Ronald Inglehart, Cultural Backlash: Trump, Brexit, and Authori‐ tarian Populism (Cambridge University Press 2019).

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scapegoat. By blaming legislation and regulation for the very social and economic conditions that make members of the public angry and frustrat‐ ed, populist leaders risk a downward, self-perpetuating spiral of public cynicism, making it harder for societies to ward off a collapse of govern‐ mental legitimacy and efficacy. Using examples from political developments in the United Kingdom, Brazil, and the United States, I argue in this chapter that legal scapegoat‐ ing is a troubling, and possibly growing, phenomenon worthy of attention. I also explicate what I see as some of the political economy dynamics be‐ hind populist leaders’ efforts to treat law as a scapegoat. In particular, I show how relatively easy it is to make law as a scapegoat. In this regard, law bears surprising similarities to other vulnerable targets of populist an‐ tipathy, such as migrants and minorities. The law can be easily framed as ‘the other’ in times of economic stress—and thus easily blamed for nega‐ tive social conditions which emanate from entirely other causes. Legal scholars and social scientists have more work to do understand the precise causes and full consequences of legal scapegoating. But the first step to‐ ward such greater understanding is to identify the phenomenon as real and worthy of inclusion in a larger research agenda focused more generally on the causes and consequences of a global crisis of public confidence in the rule of law. 2. The Crisis in Legal Confidence In countries around the world, members of the public have lost confidence in their public institutions.2 Only a minority of people—45 percent on av‐

2 Political scientist Donald Kettl has observed that ‘more than half of the public in more than half of the countries distrust their governments.’ Donald F. Kettl, Can Governments Earn Our Trust? (Polity Press 2017). The OECD notes that ‘the 2008 global financial crisis and ensuing recession … profoundly shook the public’s con‐ fidence in institutions, and people’s trust in public institutions has fared especially poorly.’ OECD, ‘Trust in Government’ (OECD 2019) < https://www.oecd.org/gov/t rust-in-government.htm> accessed 29 January 2020. Despite this secular downward trend, some polling data indicate that, in the face of a global outbreak of a novel coronavirus in early 2020, people around the world turned to their governments to protect them—leading to a quick uptick in trust in governmental institutions. Spring 2020 polling by the Edelman communications firm has shown that, across ten major countries, trust in government has increased on average of about 13 percent com‐

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erage—in OECD countries have faith in their governments.3 In the United States, the level of public trust has declined markedly over the last half century: in 1964, about 77 percent of the U.S. public trusted its govern‐ ment most or all of the time,4 but by 2019 that level was only 17 percent.5 In Brazil, only 37 percent of the public say they trust their government.6

3 4 5 6

pared to polling from the fall 2019. Edelman, Edelman Trust Barometer 2020: Global Report (Edelman 2020) accessed 23 June 2020; Edelman, ‘Spring Update: Trust and the Covid-19 Pandemic’ (Edelman, 2020) < https://www.edelman.com/sites/g/files/aatuss191/file s/2020-05/2020%20Edelman%20Trust%20Barometer%20Spring%20Update%20U. S..pdf> accessed 23 June 2020 (comparing data for Canada, France, Germany, In‐ dia, Japan, Mexico, Saudi Arabia, South Korea, the United Kingdom, and the Unit‐ ed States). This does not mean that trust in government has increased in every coun‐ try since the outbreak nor that it is still at a normatively desirable level in many countries. From just April to May 2020, polling by Reuters showed that in the Unit‐ ed Kingdom the public’s trust in just the public health information released by the government about the coronavirus declined from 67 percent to 48 percent. Richard Fletcher, Antonis Kalogeropoulos, and Rasmus Kleos Nielsen, ‘Trust in U.K. Gov‐ ernment and News Media COVID-19 Information Down, Concerns over Misinfor‐ mation from Government and Politicians Up’ (2020) Reuters accessed 23 June 2020. In the United States, trust in the federal government has declined among Democrats from the fall 2019 to the spring of 2020. Edelman, ‘Edelman Trust Barometer 2020: Spring Update: Trust and the COVID-19 Pandemic’ (Edelman, 2020) accessed 23 June 2020. OECD, Government at a Glance 2019 (OECD 2019) accessed 23 March 2020. Donald F. Kettl, Can Governments Earn Our Trust?, cit. 5. Pew Research Center, Little Public Support for Reductions in Federal Spending (PRC 2019) accessed 9 February 2020. Edelman, Trust Barometer 2020: Global Report (Edelman 2020) accessed 23 March 2020.

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The British public’s trust in its government has not risen above 41 percent since 2012.7 Such low levels of confidence undoubtedly derive from a variety of fac‐ tors which vary from country to country. Factors that are likely relevant in recent years include economic dislocations in the wake of the global finan‐ cial crisis of 2008, as well as increasing ideological polarization and a widening gulf of inequality in many societies.8 Distrust can be exacerbat‐ ed by high levels of unemployment and the lack of opportunities for indi‐ viduals to overcome socioeconomic barriers. It can also be fueled by a government’s inability to respond adequately to dire economic disruptions, natural disasters, and public health threats. High levels of corruption also propagate distrust. In more recent years, the rise of social media has tended to fuel public suspicion and cynicism. In many countries, members of the public worry about the corruption of journalistic institutions and the propagation of socalled ‘fake news’. Global polling has indicated that as many as 70 percent of adults around the world are concerned about the use of misinformation as a political weapon.9 Perhaps as worrisome, 63 percent report that they cannot distinguish legitimate journalism from fake news.10 A climate of fake news can undermine trust in democratic elections in ways that play into the hands of populist or authoritarian leaders. Today, mistrust is exploited by such leaders who seek to blame ‘the other’—often migrants and minorities—for socioeconomic woes. Poorer and less-edu‐ cated individuals in majority ethnic and racial groups may be most vulner‐

7 Edelman, Trust Barometer 2020: UK Supplement (Edelman 2020) accessed 23 March 2020. 8 OECD, Trust and Public Policy – How Better Governance Can Help Rebuild Pub‐ lic Trust (OECD publishing 2017) < http://www.oecd.org/corruption-integrity/repo rts/trust-and-public-policy-9789264268920-en.html> accessed 23 June 2020; Betsey Stevenson and Justin Wolfers, ‘Trust in Public Institutions over the Busi‐ ness Cycle’ (2011) 101 American Economic Review: Papers & Proceedings 281 accessed 23 June 2020; Joseph S. Nye, Jr., Philip D. Zelikow, and David C. King (eds.), Why People Don’t Trust Govern‐ ment (Harvard University Press 1997) 111-132. 9 Uri Friedman, ‘Trust is Collapsing in America’ (2018) The Atlantic,) accessed 27 April 2020. 10 Ibid.

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able to being heavily influenced by populist propaganda,11 at least in part because they also tend to have lower levels of trust.12 Overall, divisive na‐ tionalist movements have fostered and relied on an ‘us versus them’ men‐ tality to gain popularity.13 When mistrust festers, politicians with motives that are far from altruistic can exploit and deepen that distrust, sowing conditions for the dismantling of liberal, democratic governance. 3. Scapegoating Law Among the many strategies that populist or nationalist leaders rely on to build support is one that scapegoats the law and the legal system. Scape‐ goating the law goes beyond merely criticizing specific laws and arguing that they need to be repealed or amended. All politicians do that. Scape‐ goating goes further. It involves vitriolic attacks that falsely blame the law for a nation’s social and economic woes, thereby contributing to a sense of crisis in existing legal institutions. That crisis then purports to justify the need for a political savior to rescue society and make dramatic changes to restore order and prosperity.14 Ironically, populist or nationalist leaders may even scapegoat the law at the same time that they assert a desire to restore law and order during disruptive times, especially by invoking law as a weapon or tool to constrain immigration or trample dissent. Authori‐ tarians today often seek to consolidate power by preserving at least the fig leaf of legality to their actions—but that does not necessarily stop them from seeking support by blaming law too.15

11 J. Lawrence Broz, Jeffrey Frieden, and Stephen Weymouth, ‘Populism in Place: The Economic Geography of the Globalization Backlash’ accessed 23 April 2020. 12 Pew Research Center, Key Findings about Americans’ Declining Trust in Govern‐ ment and Each Other (2019) accessed 29 April 2020. 13 Ian Bremmer, Us vs. Them: The Failure of Globalism (Portfolio/Penguin 2018). 14 On some of the dynamics involved in scapegoating elites and building public sup‐ port for populism, see Michael Hameleers, Linda Bos, and Claes de Vreese, ‘Framing Blame: Toward a Better Understanding of the Effects of Populist Com‐ munication on Populist Party Preferences’ (2018) 28 Journal of Elections, Public Opinion and Parties 380 accessed 16 April 2020. 15 Steven Levitsky and Daniel Ziblatt, How Democracies Die (Crown 2018).

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In recent years, legal scapegoating has been a significant part of the po‐ litical strategy and rhetorical appeal behind populist-oriented political leaders in democratic countries on at least three continents, specifically in the countries of the United Kingdom, Brazil, and the United States. Each of these countries has witnessed high levels of public mistrust that has helped to provide an initial platform for populist movements. In each of these countries, successful populist strategies have included making law a particular target of blame by using exaggerated and false claims about how the law, particularly regulation, contributes to each nation’s economic woes. 4. Brexit and Legal Scapegoating The Brexit campaign was, in many respects, a rather conventional populist campaign against outsiders, targeting the European Union (E.U.), criticiz‐ ing open borders, and lamenting a loss of British sovereignty. These con‐ ventional appeals were used by advocates of Brexit to blame the E.U. for inflated healthcare costs and various other maladies affecting the British public. But legal scapegoating was also central to the narrative underlying the Brexit campaign. Politicians repeatedly raised examples purporting to show the oppressiveness of E.U. regulations, even framing European rules as absurd. Boris Johnson—who would eventually become the Prime Minister who finalized the U.K.’s Brexit deal in 2020—showed himself to be particu‐ larly adept at crafting reductio absurdum arguments against E.U. regu‐ lation as a means of building support for the initial public vote in 2016 on whether Britain should leave the European Union. Johnson claimed that Europeans had adopted ludicrous regulations governing the smell of ma‐ nure,16 the shape of bananas,17 and the size of condoms.18 He ‘warned

16 William Booth and Karla Adam, ‘Want to Understand Boris Johnson, Britain’s Probable Next Prime Minister? Read His Incendiary Journalism’ (Washington Post, 20 July 2019) accessed 19 January 2020. 17 Jon Henley, ‘Is the EU Really Dictating the Shape of Your Bananas?’ (The Guardian, 11 May 2016) accessed 21 January 2020. Christian Oliver and Jim Brunsden, ‘Fact or Fiction? Boris Johnsons Euro Claims’ (The Financial Times, 22 February 2016) accessed 28 January 2020. William Booth and Karla Adam, ‘Want to Understand Boris Johnson, Britain’s Probable Next Prime Minister? Read His Incendiary Journalism’, cit.. ‘Speech by Jacob Rees-Mogg M.P. at Churcher’s College, Petersfield, 25 January 2018’ (Richard Drax, 25 January 2018) accessed 19 January 2020. Ibid. Ibid.

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posed on the shipping of kippers, a smoked herring that many Britons con‐ sume at breakfast.23 He waved a package of the smoked fish above his head at a campaign rally, decrying E.U. regulations that purportedly re‐ quired the producers of kipper to ship fish in plastic ‘pillows’ with ice. If only the United Kingdom could escape from the E.U.’s ‘regulatory overkill’, Johnson promised, then the nation could ‘bring the kippers back’.24 Of course, it turns out that Johnson’s claims about E.U. kipper shipping requirements were simply not true. As both the British press and the Euro‐ pean Commission itself confirmed, the kipper rules lambasted by Johnson were British regulations, not E.U. ones.25 But when scapegoating law, facts do not matter. 5. Brazil, Bolsonaro, and Bullying the Law In January 2019, Jair Bolsonaro assumed the office of the Brazilian presi‐ dency after having won a 55-percent vote in a runoff election.26 Bol‐ sonaro, an ardent right-wing politician, has been wont to make degrading public statements about women and LGBTQ individuals.27 He has even

23 Ben Quinn, ‘Kipper Rules Boris Johnson Blamed on EU Are Actually British, Says Brussels’ (The Guardian, 18 July 2019) accessed 27 January 2020. 24 Alice Tidey, ‘EU Debunks Boris Johnson’s Fishy Claims About Food Regulation’ (EuroNews, 19 September 2019) accessed 29 January 2020. 25 Ben Quinn, ‘Kipper Rules Boris Johnson Blamed on EU Are Actually British, Says Brussels’ (The Guardian, 18 July 2019) accessed 27 January 2020. 26 Ernesto Londoño and Shasta Darlington, ‘Jair Bolsonaro Wins Brazil’s Presidency, in a Shift to the Far Right’ (New York Times, 28 October 2018) accessed 27 January 2020. 27 Jill Langlois and Kate Linthicum, ‘Far Right Populist Jair Bolsonaro Wins Brazil Presidential Election’ (Los Angeles Times, 28 October 2018) < https://www.latime s.com/world/la-fg-brazil-election-20181028-story.html> accessed 21 April 2020; Terrence McCoy, ‘’Anyone Could Be a Threat’: In Bolsonaro’s Brazil, LGBT Peo‐ ple Take Personal Defense into Their Own Hands’ (Washington Post, 22 July

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said that minorities should ‘either adapt or simply vanish’.28 He has flirted with authoritarianism, at times touting torture and celebrating coups.29 But at the same time, he also campaigned for the presidency on a decidedly anti-regulatory platform, and his attacks on Brazilian regulation and legal norms have continued during his time as President. Brazil had experienced a severe recession from 2014 to 2016, which undoubtedly made attractive Bolsonaro’s promises to free the country from regulation as means of helping the economy.30 Brazil has long had a bureaucratic-heavy government replete with ‘serpentine red tape’ for opening up new businesses.31 But while reducing unnecessary administra‐ tive burdens would surely seem an appropriate reform idea, that hardly means that regulation was to blame for the country’s sluggish recovery from its recession nor that lifting regulation would serve as the country’s ticket to restored economic growth and prosperity.32 After all, Brazil had a dense bureaucratic system even before the recession, and other factors, such as high taxes, crime, and real estate prices, explain what is sometimes known as the ‘Brazil cost’—that is, the higher cost of doing business in

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2019) accessed 20 April 2020. Jean Chemnick, ‘Conservationists Worry about Amazon’s Fate over Bolsonaro’s Victory in Brazil’ (Scientific American, 30 October 2018) accessed 28 January 2020. ‘Brazil: Bolsonaro’s Coup Celebration Barred by Judge’ (BBC, 30 March 2019) accessed 19 January 2020; Jamie Timson, ‘Jair Bolsonaro: How ‘South America’s Trump’ Will Change Brazil (The Week, 29 October 2018) < https://www.theweek.co.uk/97396/jair-bols onaro-how-south-america-s-trump-will-change-brazil> accessed 25 January 2020. ‘What to Make of Brazil’s New Firebrand President, Jair Bolsonaro’ (The Economist, 3 January 2019) accessed 5 February 2020. ‘Jair Bolsonaro and the Perversion of Liberalism’ (The Economist, 27 October 2018) accessed 10 February 2020. For discussion of the politics of administrative burdens, see Pamela Herd and Donald P. Moynihan, Administrative Burden: Policymaking by Other Means (Rus‐ sell Sage 2018).

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Brazil.33 Regulation neither caused Brazil’s deep recession nor could it be any panacea for restoring the country’s economic vigor.34 Yet candidate Bolsonaro proclaimed that regulations were ‘suffocating’ the country. 35 As a citizen, Bolsonaro had himself been fined, in 2012, for breaking environmental regulations, so perhaps it was not surprising that he made environmental regulations a special target for his rhetorical ire.36 He proposed on the campaign trail making the Environment Ministry a subdivision within the Agriculture Ministry.37 He also promised that, if elected, he would get rid of the ‘fine industry’, the phrase he used for reg‐ ulators because they impose monetary fines on those who violate the law.38 He urged relaxing mining regulations. 39 He also publicly discounted climate change. At one point, candidate Bolsonaro said that, if he were

33 ‘Special Report – Brazil: The Price is Wrong’ (The Economist, 28 September 2013) accessed 10 February 2020. 34 Bruno Queiroz Cunha, ‘From Regulation and Development to Development with Regulation: Alternatives to Regulatory Orthodoxy’ (ECPR Standing Group on Regulatory Governance Biennial Conference, Lousanne/Switzerland, 4 to 6 July 2018) accessed 3 May 2020. In a review of national regulatory policies and proce‐ dures in 2016, the OECD actually reported that Brazil outranked all other OECD countries in its processes of public involvement in the regulatory process. The OECD did, though, indicate that Brazil could do better to make the use of regula‐ tory impact assessment and ex post evaluation more ‘consistent’ across govern‐ ment. Indicators of Regulatory Policy and Governance Latin America 2016: Brazil (OECD 2016) accessed 15 February 2020. 35 Justin Wise, ‘The Amazon Rainforest is Burning at a Record Rate. Here’s What’s Going On’ (The Hill, 21 August 2019) accessed 13 February 2020. 36 Carol Pires, ‘The Trump Ally Who is Allowing the Amazon to Burn’ (The New Yorker, 28 August 2019) accessed 12 February 2020. 37 Jonathan Watts, ‘Fears for Amazon as Bolsonaro Plans to Merge Environment and Agriculture Ministries’ (The Guardian, 1 November 2018) accessed 20 February 2020. 38 Mariana Simões, ‘Brazil’s Bolsonaro on the Environment, in His Own Words’ (New York Times, 27 August 2019) accessed 28 January 2020. 39 Ibid.

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elected, he would withdraw Brazil from the Paris Agreement, even though that is not something that a Brazilian president can legally do by himself.40 Candidate Bolsonaro also rejected regulations that protected Amazon territory occupied by indigenous people, promising that under his leader‐ ship ‘there won’t be a square centimeter demarcated as an indigenous re‐ serve’.41 He blamed the laws protecting indigenous peoples lands for the country’s economic woes, because, in his view, ‘where there is indigenous land, there is wealth underneath it’42 — as if lifting regulations would re‐ veal a pot of gold. Brazil’s agency for indigenous affairs, the National In‐ dian Foundation (FUNAI), found itself especially targeted by Bolsonaro’s violent rhetoric: ‘If I’m elected, I’ll serve a blow to FUNAI; a blow to the neck. There’s no other way. It’s not useful anymore’.43 Since assuming office, Bolsonaro has pursued his targeted attacks on regulation. One of his first actions as president was to end new designa‐ tions of land protected for indigenous people.44 He shifted responsibility for certain environmental regulatory responsibilities to the ministry of

40 And in fact, Bolsonaro has not made moves to have Brazil exit the Paris Agree‐ ment. But as president he did back out of hosting the next COP25 climate change meeting that had been scheduled to take place in Brazil. Jake Spring, ‘No Longer the Host, Brazil Still Aims for Key Role at UN Climate Talks’ (Reuters, 15 Octo‐ ber 2019) accessed 28 January 2020. 41 Somini Sengupta, ‘What Jair Bolsonaro’s Victory Could Mean for the Amazon, and the Planet’ (New York Times, 17 October 2018) accessed 16 February 2020. 42 Ibid. 43 ‘What Brazil’s President, Jair Bolsonaro, Has Said About Brazil’s Indigenous Peo‐ ples’ (Survival International) accessed 16 February 2020. He has also said that it is ‘a shame that the Brazilian cavalry wasn’t as efficient as the Americans, who exterminated the Indians.’ Fiona Watson, ‘In Just 100 Days, Jair Bolsonaro Has Destroyed the Lives of Brazil’s Indigenous People’ (The Independent, 10 April 2019) accessed 23 February 2020. 44 Shannon Sims, ‘Here’s How Jair Bolsonaro Wants to Transform Brazil’ (The At‐ lantic, 12 January 2019) accessed 23 February 2020.

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agriculture headed by a former industry representative.45 He interfered with health authorities and energy regulators. His highly popular justice minister quit, accusing Bolsonaro of having improperly meddled in law enforcement matters.46 All the while, Bolsonaro’s administration has rolled back regulations and slashed funding for regulatory enforcement.47 In addition to delivering on his promise of reductions in fines, Bol‐ sonaro has ‘fostered an atmosphere of impunity, encouraging loggers, ranchers, miners, and farmers to breach regulations and cut into the for‐ est’.48 As large sections of the Amazon continue to burn, the president, ap‐ parently ‘[w]ithout providing evidence, … accused environmental NGOs of having started the fires’.49 Notwithstanding commitments Brazil made under the Paris Agreement to slow deforestation, Bolsonaro berated the ‘environmental psychoses’ that have led to legal limits on Amazonian de‐ velopment, stating that ‘[w]e are going to get rid of all this crap in Brazil — crap that is corrupt and communist’.50 Bolsonaro’s government has reportedly ‘incited its supporters to pres‐ sure the judiciary to issue verdicts in accordance with its wishes’.51 Wildlife preserve officials ‘have reported being met with increasingly vio‐

45 Jonathan Watts, ‘Fears for Amazon as Bolsonaro Plans to Merge Environment and Agriculture Ministries’ cit. 46 Ricardo Brito, ‘Brazil ‘Super Minister’ Quits in Bolsonaro’s Worst Crisis Yet’ (Reuters, 24 April 2020) accessed 30 April 2020; Tom Phillips, ‘Brazil’s Star Justice Minister Sergio Moro Resigns in Blow to Jair Bolsonaro’ (The Guardian, 24 April 2020) accessed 30 April 2020. 47 Oliver Stuenkel, ‘Bolsonaro Fans the Flames’ (Foreign Affairs, 30 August 2019) accessed 25 February 2020. 48 Ibid. 49 Ibid. 50 Andres Schipani, ‘Brazil: Jair Bolsonaro Pushes Culture War Over Economic Re‐ form’ (The Financial Times, 24 August 2019) accessed 25 February 2020. 51 Raphael Tsavkko Garcia, ‘Bolsonaro is Laying the Foundations of a New Dictator‐ ship’ (Aljazeera, 11 December 2019) accessed 2 March 2020. Bolsonaro even joined a rally of his supporters calling for the closing of the Supreme Court in response to an investigation into his presidency. Anthony Beedle and Ricardo Brito, ‘Bolsonaro Joins Rally Against Brazil’s Top Court;

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lent responses from miners and forestry workers as they perform their en‐ vironmental-protection duties’.52 It is said that Bolsonaro ‘stands for “or‐ der”, but not the law’.53 But the ‘order’ he seems to prefer leaves plenty of room for the toleration, if not encouragement, of attacks on the law. 6. Donald Trump’s Assault on U.S. Law Bolsonaro is often called ‘The Trump of the Tropics’.54 The comparison is apt not only because of both presidents’ coarse, aggressive rhetoric, but also because of the similar ways that these two leaders have blamed law and regulation for what ails their countries. Trump’s 2016 presidential campaign, organized around the theme of ‘Make America Great Again’, made classic populist and nationalist appeals.55 Trump has himself dab‐ bled in authoritarian rhetoric, even claiming that he ‘alone can fix’ what ails American society.56 Since elected, he used his office and its privileges to investigate political opponents (and has been impeached for doing so),

52 53 54 55

56

Judge Warns Democracy at Risk’ (Reuters, 31 May 2020) accessed 4 June 2020. Carol Pires, ‘The Trump Ally Who is Allowing the Amazon to Burn’ cit.. ‘Jair Bolsonaro and the Perversion of Liberalism’ cit.. Jair Bolsonaro: ‘Brazil’s Firebrand Leader Dubbed the Trump of the Tropics’ (BBC, 31 December 2018) accessed 27 January 2020. As Trump has governed, observers have seen little that is truly populist about his policies. He has nominated numerous billionaires to his cabinet, and his one major domestic policy accomplishment proved to deliver disproportionate tax relief benefits to the wealthy. David Smith, ‘Trump’s Billionaire Cabinet Could Be the Wealthiest Administration Ever’ (The Guardian, 2 December 2016) accessed 23 January 2020; Camilo Maldonado, ‘Trump Tax Cuts Helped Billionaires Pay Less Taxes Than the Working Class in 2018’ (Forbes, 10 October 2019) accessed 23 January 2020. Politico Staff, ‘Full Text: Donald Trump 2016 RNC Draft Speech Transcript,’ (Politico, 2016) accessed 24 April 2020.

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and he has regularly flouted other long-established legal and historical norms.57 When it comes to public policy, Trump has made regulation a center‐ piece of his agenda during both his campaign and administration, routinely using regulatory law as a scapegoat. Speaking to the Detroit Economic Club in one of his few substantive speeches as a candidate, Trump railed against regulation as ‘a hidden tax on American consumers, and a massive lead weight on the American economy’.58 Proclaiming that ‘[i]t is time to remove the anchor dragging us down’, Trump trotted out a favorite canard of the political right, asserting that ‘current overregulation is costing our economy as much as $2 trillion dollars a year—that’s money taken straight out of cities like yours’.59 The $2 trillion figure has been widely discredit‐ ed, and no serious economist vouches for it.60 The former head of the U.S.

57 Peter Baker, ‘Trump Renews Attack on Justice System, Again Disregarding Barr’s Pleas (New York Times, 20 February 2020) accessed 24 April 2020; Paul Rosenzweig, ‘Trump’s Defiance of the Rule of Law (The Atlantic, 3 June 2019) accessed 24 April 2020; Robert Reich, ‘Trump’s Assault on the Rule of Law’ (The American Prospect, 27 November 2018) accessed 24 April 2020. See also Cary Coglianese, ‘Legitimacy, Not Force, Is Key to Presidential Power’ (The Regulatory Review, 8 June 2020) accessed 10 June 2020. 58 J. Brian Charles, ‘Transcript of Donald Trump’s Economic Policy Speech to De‐ troit Economic Club’ (The Hill, 8 August 2016) < https://thehill.com/blogs/pundits -blog/campaign/290777-transcript-of-donald-trumps-economic-policy-speech-to-d etroit> accessed 15 April 2020. 59 Ibid. 60 Richard W. Parker, ‘Hyping the Cost of Regulation’ (The Regulatory Review, 25 June 2018) accessed 20 April 2020; Jodi L. Short, ‘Cutting Through the Rhetoric of Cutting Red Tape’ (The Regulatory Review, 31 July 2018) accessed 20 April 2020. For further discussion of this discredited figure, see Maeve P. Carey, ‘Meth‐ ods of Estimating the Total Cost of Federal Regulations’ (Congressional Research Service, 21 January 2016) accessed 21 April 2020.

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Office of Information and Regulatory Affairs, Cass Sunstein, has even called it an ‘urban legend’.61 Trump has often singled out environmental regulation for scapegoating. He declared, for example, that, under the Obama Administration, the U.S. Environmental Protection Agency had waged a ‘war on coal’ that was de‐ stroying the coal industry in the United States.62 But multiple studies have revealed what has long been obvious to investors and other financial ana‐ lysts: the coal industry’s decline has come from decreased costs of natural gas—a competitive fuel source—and not from regulation.63 Misleading the public about the impact of environmental regulations may seem like small potatoes compared to the inflammatory rhetoric Trump has used to attack other aspects of the law. He has called law en‐ forcement officials ‘human scum’.64 He has accused federal judges of bias and racial prejudice—with some of these accusations being so outlandish that they prompted the Chief Justice of the U.S. Supreme Court to issue a public rebuke of the President.65 Trump and his aides traffic in conspiracy 61 ‘Regulatory Policy Assessment, Sunstein, Part 1’ (C-SPAN, 3 June 2011) < https:// www.c-span.org/video/?299863-1/regulatory-policy-assessment-sunstein-part-1> accessed 21 April 2020. 62 Cary Coglianese and Daniel Walters, ‘Whither the Regulatory ‘War on Coal’? Scapegoats, Saviors, and Stock Market Reactions’ (2020) Ecology L Q (forthcom‐ ing) accessed 9 February 2020. 63 Ibid. See also Trevor Houser, Jason Bordoff, and Peter Marsters, Can Coal Make a Comeback? (Columbia Center on Global Energy Policy 2017) ac‐ cessed 27 April 2020; John Coglianese, Todd D. Gerarden, and James H. Stock, ‘The Effects of Fuel Prices, Environmental Regulations, and Other Factors on U.S. Coal Production, 2008-2016’ (2020) 41 Energy Journal 55 accessed 27 April 2020. 64 Justin Wise, ‘Trump Calls FBI Investigators in Russia Probe “Human Scum”’ (The Hill, 20 April 2020) accessed 29 April 2020. 65 Brent Kendall, ‘Trump Says Judge’s Mexican Heritage Presents “Absolute Con‐ flict”’ (Wall Street Journal, 3 June 2016) accessed 25 April 2020; William Cummings, ‘US Does Have “Obama Judges”: Trump Responds to Supreme Court Justice John Roberts’ Rebuke’ (USA Today, 21 November 2018) accessed 25 April 2020.

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theories about a ‘deep state’—that is, a government that plots against its own public.66 One of his early aides openly called for ‘dismantling the ad‐ ministrative state’.67 Immediately after his inauguration, Trump pledged to reduce regula‐ tions in the United States by 75 percent.68 Not only did he appoint individ‐ uals as heads of regulatory agencies who share an anti-regulatory perspec‐ tive, he also imposed by executive order a government-wide regulatory budgeting—or ‘one in, two out’—regimen.69 In 2017, Trump bragged that his administration would take the volume of federal regulation ‘back be‐ low the 1960 level… fairly quickly’.70 With the 1960 regulatory code re‐ portedly containing nearly 90 percent fewer pages of regulations than to‐ day’s code, the kind of deregulation that Trump was proposing would

66 Tom Porter, ‘“The Deep State is 100% True”: Trump is Launching an All-Out As‐ sault on the U.S. Intelligence Community’ (Business Insider, 21 February 2020) accessed 24 April 2020. A search of Trump’s own Twitter feed yields more than 25 instances of the term ‘deep state’. In addi‐ tion, Trump has given credence to still more sinister and preposterous conspiracy theory known as QAnon, which has attracted adherents with a propensity toward violence who posit that government officials are plotting to kidnap and abuse chil‐ dren, among other bizzare assertions. Philip Bump, ‘“They Like Me Very Much”: Why Trump’s QAnon Comments Are Dangerous’ (Washington Post, 19 August 2020) accessed 28 Au‐ gust 2020. 67 Jon Michaels, ‘How Trump is Dismantling a Pillar of the American State’ (The Guardian, 7 November 2017) accessed 27 April 2020. 68 Chris Arnold, ‘President Trump to Cut Regulations by “75 Percent” – How Real Is That?’ (NPR, 24 January 2017) accessed 19 January 2020. 69 Bourree Lam, ‘Trump’s “Two-For-One” Regulation Executive Order’ (The At‐ lantic, 30 January 2017) accessed 25 January 2020. 70 Juliet Eilperin, ‘Trump Pledges to Cut Regulations Down to 1960 Levels – But That May Be Impossible’ (Washington Post, 14 December 2017) accessed 28 March 2020.

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amount to a monumental shift in U.S. law.71 It also could not be done by Trump alone, as it would necessitate congressional action. Several years into his tenure as President, Trump’s supporters have typ‐ ically credited him with three main domestic policy accomplishments: tax legislation (which reduced tax rates primarily for corporations and wealthy people); the appointment of judges to other federal courts, including two justices of the Supreme Court; and deregulation. Trump has bragged that his administration ‘has cut more regulations in a short period of time than any other administration during its entire tenure’.72 But of course, he has not done so, nor has he come anywhere close to reducing regulations by 75 percent. In fact, the number of repeals of regulations has been extreme‐ ly modest compared with his pledge.73 The biggest impact the Trump Ad‐ ministration has had on federal regulation has come from the slowing

71 As one reporter put it, ‘[e]ventually, Trump promised, the administration plans to do away with some 165,000 pages of the more than 185,000 in the Code of Fed‐ eral Regulations’. Denis Slattery, ‘Trump’s Promise to Cut “Red Tape” and Loosen Regulations Not as Easy as He Says’ (New York Daily News, 1 January 2018) accessed 4 May 2020. 72 Jacob Pramuk, ‘Trump’s Bold Claims About Cutting Red Tape Give Democrats a Possible Weapon in 2020 Election’ (CNBC, 24 March 2019) < https://www.cnbc.c om/2019/03/24/trump-claims-about-cutting-regulations-give-dems-2020-electiono p e n i n g . h t m l > accessed 9 February 2020. Trump’s budget director recently bragged that the Administration has engaged in the ‘largest deregulation effort in modern history.’ Philip Wegmann, ‘WH Agenda Will Advance “Largest Deregula‐ tion Effort in History”’ (Real Clear Politics, 30 June 2020) accessed 30 June 2020. This claim is also patently false if by ‘modern history’ one reasonably includes the Carter Administration from 1977-1981, during which time the federal government made major moves to eliminate large swathes of economic regulation over airlines, truck transportation, and certain energy markets. 73 For a list of deregulatory actions taken, see Brookings, ‘Tracking Deregulation in the Trump Era’ (Brookings Institution, 22 January 2020) accessed 28 January 2020. For analysis, see Stuart Shapiro, ‘Trump’s Deregulatory Record Doesn’t In‐ clude Much Actual Deregulation’ (The Conversation, 10 May 2018) accessed 28 August 2020; Stuart Shapiro, ‘Making Sense of the Trump Administration’s Regulatory Numbers’ (The Regulatory Review, 14 January 2020) accessed 28 August 2020.

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down of the issuance of new major regulations: as of January 2020, Trump had finalized 98 economically significant regulations, compared with Oba‐ ma’s 175 in the same period of time and an average of 118 across all Pres‐ idents since 1980.74 It is a gross exaggeration to claim that the direction the U.S. economy has taken over the last several years has had much if anything to do with what the Trump Administration has done in terms of ‘deregulation’.75 Not only has President Trump exaggerated what he has achieved, but he has not ceased to scapegoat the law when it seems to suit his interests. In 2020, in the face of criticism of his administration’s slow response to the spread of a deadly coronavirus—including of his own repeated statements downplaying the risks—Trump tried to shift the blame. His target: the law. ‘I don’t take responsibility at all’, he declared, ‘because we were given a set of circumstances and we were given rules, regulations, and specifica‐ tions from a different time’.76 But this claim, perhaps not surprisingly, was also false. If the President or others in his administration had exercised re‐ sponsible leadership, there was nothing in the law or in regulations that prevented quick action to start testing for the virus and acting to contain its spread.77 7. The Political Economy of Legal Scapegoating Contemporary events in Britain, Brazil, and the United States reveal how law can be vilified and used as a scapegoat by populist leaders to advance their drive for power. The political economy behind such scapegoating is

74 Andrew Hunter, ‘Deregulation Doing Little to Boost Economy’ (Capital Eco‐ nomics, 9 January 2020) accessed 14 May 2020. 75 Cary Coglianese, ‘Let’s Be Real About Trump’s First Year in Regulation’ (The Regulatory Review, 29 January 2018) accessed 17 May 2020. 76 Linda Qiu, ‘Trump’s False Claims About His Response to Coronavirus’ (New York Times, 15 March 2020) accessed 14 May 2020. 77 Ibid. See also James Fallows, ‘The 3 Weeks That Changed Everything’ (The At‐ lantic, 29 June 2020) accessed 30 June 2020.

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similar to that underlying any scapegoating: some leaders see it to their advantage to blame something or someone else for a society’s problems. The alternative for these leaders might well mean having to solve prob‐ lems—or at least to help mass publics understand and accept the difficul‐ ties and tradeoffs at stake in addressing underlying social and economic problems. Doing so might mean putting forward policy solutions that could be unpopular, such as raising taxes or cutting budgets. Scapegoating the law is simply easier than building coalitions around unpopular but nec‐ essary actions. Furthermore, legal scapegoating combines what appears on the surface to be a public-interested concern about and diagnosis of a problem—such as the economy ‘suffocating’ under the weight of regulation—with a set of solutions that appeals to private interests that align themselves with pop‐ ulist leaders.78 When regulatory costs are disproportionately borne by a concentrated set of business actors, and regulatory benefits are diffused throughout society, solutions that relax regulatory protections are likely to deliver disproportionate private benefits in the form of cost-savings to po‐ liticians’ wealthy benefactors.79 It is surely no accident, for example, that Bolsonaro’s efforts to gut regulatory protections for the Amazon has served the interests of his wealthy political supporters in agriculture and ranching. Nor does it seem happenstance that coal industry executives in the United States and the po‐ liticians who seek their support have embraced the rhetoric of a regulatory ‘war on coal’. Such rhetoric is easier for the coal industry to embrace than to have to admit to employees and shareholders that they have been de‐ feated in the marketplace by an alternative source of energy. Moreover, blaming regulation provides a basis for asking policymakers not merely for regulatory relief but, still better, for government subsidies that can de‐ liver short-term financial gains to firms but can do little to address the un‐ derlying cause of an industry’s decline.80 78 Bruce Yandle, ‘Bootleggers and Baptists —The Education of a Regulatory Economist’ (1983) AEI Journal on Government and Society accessed 30 January 2020. 79 On the political implications of how regulatory costs and benefits are distributed, see James Q. Wilson, Politics of Regulation (Basic Books 1980). 80 Jeff Brady, ‘Despite Bankruptcy and Illness, Bob Murray Remains a Loud Voice for Coal’ (NPR, 7 November 2019)

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For politicians, legal scapegoating allows them to look like ‘saviors’ coming to the rescue of the economy.81 It is relatively easy, after all, to do something about regulation compared with the kinds of major structural or fiscal policies that might deliver meaningful macroeconomic returns.82 It has proven relatively easy, for example, for President Trump to project himself as a savior to energy industries by repealing the Obama Adminis‐ tration’s signature climate change regulation, claiming that this helped the economy, even though the Obama regulation had in fact never taken legal effect and could not yet have had any palpable effect on the economy, one way or the other.83 The political advantages that populists perceive from making law a scapegoat—and particularly from scapegoating regulation—dovetail with the difficult economic conditions that can drive some politicians to scape‐ goat minorities and migrants. Difficult economic times have a tendency to generate antipathy toward regulation.84 In the United States, the propor‐ tion of citizens who believed that there was ‘too much’ regulation spiked at the height of the Great Recession, in mid-2008. Likewise, ample social science research shows that scapegoating of ethnic minorities and mi‐ grants is more likely to occur in periods of declining economic condi‐

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accessed 29 January 2020. For a discussion of the subsidies that have been pro‐ posed and offered to the coal industry in the United States, see Coglianese and Walters (n 62). Ibid. Christopher Carrigan and Cary Coglianese, ‘Oversight in Hindsight: Assessing the US Regulatory System in the Wake of Calamity’ in Cary Coglianese (ed), Regula‐ tory Breakdown: The Crisis of Confidence in US Regulation (University of Penn‐ sylvania Press 2012). In his 2018 State of the Union address to the nation, Trump declared that ‘we have ended the war on beautiful, clean coal’. Umair Irfan, ‘Trump’s Perennial “War on Coal” Claim, Fact-Checked’ (Vox, 31 January 2018) accessed 16 April 2020. For further background, see Lisa Friedman and Brad Plumer, ‘EPA Announces Re‐ peal of Major Obama-Era Carbon Emissions Rule’ (New York Times, 9 October 2017) accessed 28 January 2020. Gallup, ‘Americans’ Views on Government Regulation of Business, Government Power (Trends)’ (Gallup, 2018) accessed 12 February 2020.

Law as Scapegoat

tions.85 In other words, antipathy toward regulation can dovetail with an‐ tipathy toward migrants. As a candidate, Trump scarcely limited his scape‐ goating to the law but made prominent throughout his campaign a desire to build a border wall to keep migrants out of the United States. Describ‐ ing Latino migration as ‘an invasion of our country’ and hurling other in‐ sults and dog whistles, Trump overall fueled an ‘us versus them’ mindset among his supporters.86 8. How Laws Are Like Migrants Although scapegoating the law is by no means normatively equivalent to scapegoating human beings based on their race or national origin, it is striking how law and regulation are, in important respects, a lot like mi‐ grants when it comes to the dynamics that lead to scapegoating. To under‐ stand the appeal that legal scapegoating can have to populist politicians, it helps to keep in mind at least five features that laws and migrants have in common that can contribute to both of them being made scapegoats. First, laws, like migrants, are foreign to most people. Just as migrants come into a country from an outside location, laws and regulations often are created in a distant capital city by and through the interaction of vari‐ ous elites.87 In the United States, the nation’s capital, Washington, D.C., is located far away from most people in the country’s heartland. It also has

85 United States Department of Justice, ‘Hate Crime: The Violence of Intolerance’ accessed 8 February 2020. One study has confirmed that, following the 2008 global financial crisis, European countries experiencing severe economic impact exhibited pessimistic public attitudes toward migrants. Joachim Vogt Isaksen, ‘The Impact of the Financial Crisis on European Attitudes Toward Immigration’ (2019) 7(24) Comparative Migration Studies accessed 9 February 2020. 86 Philip Rucker, ‘“How Do You Stop These People?”: Trump’s Anti-Immigrant Rhetoric Looms Over El Paso Massacre’ (Washington Post, 4 August 2019) accessed 29 March 2020. 87 Indeed, sociologists of law sometimes speak of “regulation at a distance,” by which they mean “the remove or remoteness” that exists between “the ultimate source of power and authority, the state, and proximity to the sites of action, on the ground in the organization.” Ruthanne Huising and Susan S. Silbey, ‘Governing

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the distinction of being the city in the United States with the highest con‐ centration of individuals with graduate degrees. In the United Kingdom, the target of legal scapegoating was literally a foreign entity: the European Union. In many Briton's minds, the distance between London and Brussels was vast—both geographically and culturally. In the week leading up to his election as Prime Minister, for example, Boris Johnson also used E.U. migration regulation to further his campaign, claiming that Britons had ‘seen quite a large number of people coming in from the whole of the E.U. —580 million population—able to treat the U.K. as though it’s basically part of their own country’.88 In Brazil, Bolsonaro’s attacks on regulations in mining and development on lands set aside for indigenous peoples com‐ bined his disdain for regulation as an ‘other’ with his and his supporters’ treatment of indigenous people as an ‘other’. Second, laws, like migrants, can be characterized by populist leaders in terms of their ‘impurity.’ Populists tend to contrast the status quo with an idealized purity that would exist if only migrants could be removed—or particular laws could be repealed. Anti-migrant fervor often derives from or involves appeals to repugnant notions of ethnic or racial purity. Consid‐ er that President Trump described Mexican migrants as ‘rapists’ and Haitian migrants as ‘hav[ing] AIDS’, but he lamented that the U.S. does not have more immigrants from Norway, a predominantly white country.89 Trump has insisted that he will ‘always protect American families first’ against the influx of Somalian refugees, as if those migrants would have jeopardized the integrity of U.S. households.90 In a similar vein—albeit not in such a racist manner—populists’ anti-law fervor can similarly ap‐ peal to a purified world, as was reflected in Britain’s Jacob Rees-Mogg’s

the Gap: Forging Safe Science Through Relational Regulation’ (2011) 5 Regu‐ lation & Governance 14, 16, 38. 88 Adam Payne, ‘Boris Johnson Says He Will Stop Immigrants from Treating Britain “As Their Own Country”’ (Business Insider, 9 December 2019) accessed 1 May 2020. 89 Jayashri Srikantiah and Shirin Sinnar, ‘White Nationalism as Immigration Policy’ (2019) 71 Stanford Law Review Online accessed 11 February 2020. 90 Rebecca Solnit, ‘Trump’s Anti-Immigrant Rhetoric Shows the Danger of Mis‐ placed Empathy’ (The Guardian, 25 October 2019) accessed 28 March 2020.

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contrasting U.K. futures, one bright and one bleak. Populists can make it seem as if purity in terms of individual autonomy and liberty can be guar‐ anteed only if citizens break free of a regulated nanny state and the taint of a contaminated government. As the Republican Minority Leader of the U.S. House of Representatives Kevin McCarthy once stated, ‘[w]e’re go‐ ing to take a fresh approach, we don’t want bureaucracy touching every‐ thing’.91 Third, tropes against migrants and laws offer simplistic solutions for what ails the world: just get rid of the migrants and the rules. What could be simpler than building a wall to keep migrants out? We see similar black-and-white solutions when it comes to regulation too: regulations are bad, so the government should simply reduce them by 75 percent to boost the economy. One can even simplify further: forget all about the benefits those regulations might generate and simply focus on their costs. In reali‐ ty, of course, regulations have both costs and benefits, and while some regulations surely need improvement, this does not mean that all regula‐ tions are bad. The problems facing any country’s economy are by no means easy or straightforward, but blaming regulation makes it easy to provide simplistic answers to those who are challenged by complexity. Fourth, regulations and laws, like migrants, are relatively powerless in the face of rhetorical or political assault. Laws themselves do not stand up and object, and they do not actively fight back. It is true that the European Commission, for example, has created a blog on which staff members post occasional corrections to Euro-myths.92 But no blog on an E.U. website is any match for the influence that Boris Johnson's diatribes can have on the British public when those falsehoods are published in the Telegraph or the Spectator. In the same vein, it is hard to counteract the vitriolic rhetoric fed daily to the two-thirds of Americans who read Donald Trump’s tweets.93 And when Twitter flags some of his tweets as false or violative

91 Alexia Fernández Campbell, ‘The End of Government Oversight?’ (The Atlantic, 13 January 2017) accessed 25 April 2020. 92 European Commission, ‘Euromyths’ (EC, 2017) accessed 26 January 2020. 93 Frank Newport, ‘Deconstructing Trump’s Use of Twitter’ (Gallup, 16 May 2018)

accessed 27 January 2020.

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of the platform’s policies, the company may well only risk giving them greater prominence. Migrants, of course, face a personal retaliation if they speak out. In the United States, migrants who protest the conditions of migration detention centers may find themselves subject to deportation.94 Although the conse‐ quences for the law are neither so personal nor profound, if regulatory agencies respond to misleading claims or campaigns against their rules, they may actually violate a law prohibiting government from engaging in certain kinds of propaganda. During the Obama Administration, the Envi‐ ronmental Protection Agency (EPA) faced an orchestrated campaign of falsehoods by those opposed to a water pollution regulation that the agen‐ cy had been developing. The EPA pushed back by creating a social media campaign to counteract a particular set of false claims made by the farm‐ ing lobby. Yet, in the end, the federal government’s auditing office con‐ cluded that the EPA had violated several laws, including one banning ‘covert propaganda’.95 Regulation, in effect, has one hand tied behind its back, unable to retaliate fully against attacks. Fifth and finally, just as anti-migrant rhetoric both demeans migrants and seeks to elevate non-migrants’ sense of superiority, anti-regulation rhetoric commonly tries to reinforce the superiority of those who are lis‐ tening to it. Boris Johnson's kipper outcry, and his criticisms of bananashape rules, did more than just disparage regulation; they conveyed to the British public a sense of superiority over E.U. regulators. By pointing to absurd examples, Johnson tacitly communicated to his audience that E.U. regulators lacked common sense and that British citizens, who obviously know better, could get along just fine without such outside regulation.

94 Miranda Faulkner, ‘With ICE Sweeps Looming, Immigration Rhetoric Heats Up on Capitol Hill,’ (PBS Cronkite News, 12 July 2019) accessed 10 May 2020. 95 Eric Lipton and Michael D. Shear, ‘EPA Broke Law with Social Media Push for Water Rule, Auditor Finds’ (New York Times, 14 December 2015) accessed March 28, 2020. ‘B-326944: Environ‐ mental Protection Agency—Application of Publicity or Propaganda and AntiLobbying Provisions’ (US Government Accountability Office,14 December 2015) accessed 29 January 2020.

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9. The Consequences of Legal Scapegoating These five similarities between laws and migrants do not imply a moral equivalence between vitriol directed at people versus attacks directed to the law. By pointing to the several similarities between law and migrants, though, I do hope to reveal the law’s vulnerability to scapegoating. Give these similarities, it should hardly be surprising when we see populist leaders appropriating anti-regulatory rhetoric and seeking to denigrate the law. But it should still be deeply concerning. Legal scapegoating has the potential to undermine public confidence in the law overall, posing risks to democratic liberal society. At a time when public confidence already is on the decline in a number of countries around the world, attempts by po‐ litical leaders to denigrate the law using falsehoods, exaggerations, or vio‐ lent rhetoric create a potential for a downward spiral that can make gov‐ erning more challenging and contribute to more fertile conditions for au‐ thoritarian rule.96 Governance depends greatly on public acceptance of and compliance with law. It is costly—indeed, impossible—for governments to monitor constantly the behavior of every individual and organization. Admittedly, some monitoring and sanctions are needed, but they have their limits. If punishment becomes excessive or is deployed indiscriminately, this can undermine public trust and provide would-be populists with fodder for regulatory scapegoating.97 Consequently, the best way to maintain social order is to foster ‘the public’s confidence in the law and increas[e] peo‐ ple’s willingness to defer to legal authorities’.98

96 When the law being denigrated derives from outside a country, as with the case of Brexit, it is not clear whether scapegoating the outside law will have the same con‐ sequences for domestic governance. Now that the United Kingdom has severed with the European Union, scapegoating of E.U. law may result in little impact on compliance with or public confidence in British law. Of course, in the future, any populist agitators in the United Kingdom will no longer have E.U. law to kick around. Perhaps someone will someday hold up a kipper and use it to denigrate British regulatory authority. 97 For a discussion of potential backlash to regulatory punitiveness, see Eugene Bar‐ dach and Robert A. Kagan, Going by the Book: The Problem of Regulatory Unrea‐ sonableness (Temple University Press 1982). 98 Tom Tyler and Yuen J. Huo, Trust in Law: Encouraging Public Cooperation with the Police and Courts (Russell Sage 2002) 213.

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Legal scapegoating is likely to erode such confidence. It could also help lay groundwork for a retreat from democratic governance. Tom Ginsburg and Aziz Huq have noted that ‘institutions tasked with maintaining the rule of law, or that provide a foothold for oppositional politicians, are tar‐ geted quickly’ by aspiring authoritarian leaders.99 Especially when legal scapegoating is combined with the scapegoating of elites, media, and other core institutions in society, it may contribute to an overall undermining of the legitimacy of democratic leaders—a key step in what Karen Stenner has called the ‘authoritarian dynamic’. As Stenner has written, ‘[i]n the extreme, authorities deemed illegitimate and norms deemed questionable can ultimately cause highly authoritarian [members of the public] to “withdraw” their consent from that normative order and to “reinvest” their inclinations elsewhere’.100 Blaming the law, in other words, could be one way of engendering a sense of normative threat that leads individuals with an authoritarian disposition to gravitate toward leaders promising to unify and stabilize social order. 10. Implications for Action and Research What is to be done? The best solution would seem to be to restore public trust in government and other institutions. Declining public trust, as noted at the outset, creates a climate that makes members of the public receptive to populist appeals of all kinds, including those that scapegoat the law. When members of the public have strong confidence in their legal system, scapegoating that system will become more difficult. That said, identifying the need to increase trust is one thing, but it is an‐ other altogether to specify how to restore trust once it has declined. Vari‐ ous chapters of this book offer promising steps that legislatures and regu‐ latory bodies could take, whether through improved public consultation or better regulatory analysis. Enhancing the robustness of regulatory impact assessment, for example, might not only make law more effective and effi‐ cient, but it could make it much less likely that government will adopt sil‐

99 Tom Ginsburg and Aziz Huq, ‘How We Lost Constitutional Democracy’ in Cass R. Sunstein (ed.), Can It Happen Here?: Authoritarianism in America (William Morrow 2018) 147. 100 Karen Stenner, The Authoritarian Dynamic (Cambridge University Press 2005) 19.

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ly or nonsensical rules of the kind that would provide fodder for those who wish to scapegoat law. As the examples in this chapter should make clear, though, populists do not need facts or genuine fodder if they wish to scapegoat the law. If mem‐ bers of the public are already predisposed to view their government suspi‐ ciously, they can come to believe claims of legal scapegoating that have no grounding in reality. The challenge, then, is not merely to create better rules for the sake of avoiding blunders that could be held up by populists, but to create better rules because of an intrinsic commitment to excellence in the delivery of public value.101 What ultimately is needed are legislative and regulatory processes that earn the public’s confidence because of the quality outcomes they produce, the integrity of the government officials and institutions that produce those outcomes, and the openness and fair‐ ness of the processes by which laws are made and enforced.102 Achieving such excellence in governance and winning back public trust —especially in the face of broader societal factors contributing to mistrust —is no small task. The path back toward trusted government can be long. Yet while awaiting the outcome of broader efforts at trust restoration, it can be important at least to recognize legal scapegoating as a tool for at least some would-be authoritarians. Until legal scapegoating is recognized and called out, little can be done to counteract it. Recognizing the existence of legal scapegoating also opens up avenues for further scholarly research to understand why and when such scape‐ goating emerges, exactly how detrimental it can be, and what tactics re‐ sponsible actors in government and the legal system can deploy to coun‐ teract it.103 Although in this chapter I have highlighted three countries where populist leaders have scapegoated the law, other countries experi‐

101 Mark Moore, Creating Public Value: Strategic Management in Government (Har‐ vard University Press 1995). 102 Cary Coglianese (ed), Achieving Regulatory Excellence (Brookings 2016); Cary Coglianese, ‘Listening, Learning, and Leading: A Framework of Regulatory Ex‐ cellence’ (Penn Program on Regulation, 2015) accessed 20 January 2020. 103 I have expressed the concern throughout this chapter that legal scapegoating could exacerbate public distrust, but the extent to which it does so is obviously an empirical question. It is perhaps at least plausible that legal scapegoating could backfire, especially in countries with a strong rule-of-law tradition. In this regard, it is interesting to note that, according to Gallup polling, the level of public ap‐ proval of the U.S. Supreme Court has steadily increased during the time that

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encing populism do not appear to have as strong an anti-regulatory fervor or one so immediately intertwined with their leaders’ populist rhetoric. One avenue for research would be to understand better why countries dif‐ fer in the degree of legal scapegoating they experience. Although populist leaders in Poland and Hungary have deployed their own scapegoating against foreigners, for example, they do not appear to place the same level of blame on law as have leaders in the United States, United Kingdom, and Brazil. 104 This may perhaps be due to varying levels of pre-existing public support across the different countries. Hungarian and Polish citizens appear to have at least somewhat greater confidence in their governments than do publics in Brazil, the United Kingdom, and the United Sates, and the former countries have seen a greater increase in con‐ fidence over the last ten years than have the latter.105 Perhaps pre-existing frailty of trust is, in the end, the key factor explaining legal scapegoating. If so, then what is clearly the best solution—boosting overall public confi‐ dence—could also plausibly be the only meaningful way to prevent legal scapegoating. 11. Conclusion Scapegoating the law is a real phenomenon. In an era of declining public trust in government, the reality is that populist leaders and aspiring author‐ itarians can turn law into a scapegoat in ways that may only accelerate

Donald Trump has been President, while overall ‘public confidence’ in the Supreme Court has remained largely steady during this time. ‘Supreme Court’ (Gallup, 2019) ac‐ cessed 30 January 2020; ‘Confidence in Institutions’, (Gallup, 2019) accessed 30 January 2020. 104 Dalibor Rohac, ‘Hungary and Poland Aren’t Democratic. They’re Authoritarian’ (Foreign Affairs, 5 February 2018) accessed 24 January 2020; Bojan Pancevski, ‘Hungary, Loudly Opposed to Immigration, Opens Doors to More Foreign Workers’ (Wall Street Journal, 8 September 2019) accessed 25 January 2020. 105 ‘Government at a Glance 2019: Poland’ (OECD publishing 2019) accessed 26 January 2020; ‘Government at a Glance 2015: Hungary’ (OECD, 2015) accessed 26 January 2020.

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their societies’ overall declining confidence in law and government. As such, legal scapegoating is worrisome and deserves attention and study. As much as lawyers, judges, and legal scholars might seem natural al‐ lies of the law who will resist its scapegoating, they and members of the public more generally must first recognize legal scapegoating for what it is and how serious it may be. In the countries examined in this chapter, legal scapegoating has arisen within a larger social context in which public trust has already been on the decline due to factors such as inequality, economic distress, and discord induced by social media. When social and economic conditions have already weakened public faith in their government, pop‐ ulist leaders have incentives to exploit law’s vulnerability and seek to turn society further against the existing legal system. In this respect, the law can be an easy target for those seeking to use rhetorical sabotage to undermine public trust. Researchers have much work to do, but the first step is to identify the phenomenon of legal scape‐ goating as worthy of inclusion in a larger research agenda focused on un‐ derstanding the crisis of public confidence in the law and legal institu‐ tions.

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