Hasty Lawmaking A Growing Democratic Deficit

German parliamentarians, trade unions, and industry associations are complaining about the government’s hasty law-making and lack of consultation, with threats to take the issue to the Constitutional Court.
Germany's federal cabinet. The coalition is rushing through laws before the end of the current legislative period.

Post-war Germany prides itself on its elaborate democratic procedures. As well as constitutional checks and balances, lawmaking includes wide consultation with “social partners”— trade unions, industry associations, and pressure groups.

But with federal and regional elections looming, these groups say the government is forcing through laws at alarming speed, leading to costly mistakes and undermining the country’s democratic norms. The trade unions have threatened to bring the issue before the Constitutional Court.

As a typical example, groups have highlighted new legislation on roads and traffic. Last Wednesday evening, the federal government emailed more than 50 industry associations and trade unions with details of a complex law on tolls for foreign highway users. The email, marked “Urgent,” solicited feedback, but gave organizations less than 24 hours to do so, an impossibly short space of time.

The email said the law had to be signed off “at the federal cabinet meeting on January 25, 2017.”

Parliamentarians, employer’s groups, and trade unions are now pushing back against what they say is rushed legislation, saying careless lawmaking will store up problems for the future. The trade unions have threatened to take federal government to court to slow its hectic legislation.

Parliamentarians, employer’s groups, and trade unions are pushing back against what they say is rushed legislation.

For many, the new toll laws seem to have been the last straw: they bear the hallmarks of hasty drafting, with many questions left unanswered. The law was revised to prevent discrimination against foreign drivers, after the European Commission rejected a first version. But foreigners will now have to pay even more than in previous proposals. The law also contains dubious predictions of income from the new tolls. But discussion of the law will be minimal—it has to go to cabinet on Wednesday, if it is to have any chance of passing this year.

Not only Transport Minister Alexander Dobrindt is rushing through legislative projects. Economics Minister Sigmar Gabriel, and Barbara Hendricks, the environment minister, want to pass new payment regulations for the national electricity grid. The Interior Minister Thomas de Maizière wants an “open data” law—in effect, freedom of information—on the statute books as soon as possible. And Justice Minister Heiko Maas is under orders from Chancellor Angela Merkel to abolish laws on insulting the president, in the wake of an embarrassing case involving a well-known stand-up comedian last year.

Underlying all this are three upcoming regional elections—in North Rhine-Westphalia, Saarland, and Schleswig-Holstein—and federal elections due in the autumn. Any new federal law passed by September 24 will go back to square one.

Long consultation periods mean that time is short for laws to pass the necessary parliamentary stages. Normally a draft law is sent by the cabinet to the Bundesrat, the upper house of parliament, which has six weeks to comment. In some cases, this can be reduced to three weeks, or increased to nine. The upper house is comprised of representatives from the governments of Germany’s 16 federal states. As a next step, the Bundestag, the lower house, deliberates on the law, possibly taking testimony from expert witnesses. After plenary sessions, various committees debate the proposal. Then the Bundestag gives it further readings. Any abbreviation of procedures needs a two-thirds parliamentary majority. The passage of the bill is not yet over—it returns again to the upper house, and is either approved or opposed and sent to a mediation committee. Once this happens the Bundestag has a final vote: if the upper house is still opposed, then the Bundestag must pass it by a two-thirds majority.

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It is rare for the upper house to send a draft law to a mediation committee: it has happened only twice since the last elections in 2013. However, the government has increasingly cut deliberation time, as in the case of the toll laws. With a large parliamentary majority, the government can easily do this.

Federal states and pressure groups claim this can lead to shoddy legislation, pointing to the new law on autonomous, self-driving cars, also due in cabinet on Wednesday. The car industry initially praised the “first laws anywhere in the world on artificial intelligence on the roads.” The VDA, the industry association of German car manufacturers, had above all wanted clarification on legal liability in case of accidents with self-driving cars. But instead of clarity, they are getting the opposite, thanks to careless ministerial drafting.

This has resulted in an absurd law. Originally, the law read that the driver could “turn away from driving procedures” if the car took control. But now the driver must remain constantly alert and is “obliged to immediately take over control,” if the system demands or the driver sees a problem. In other words: the driver is more liable with than without an autopilot. “This law is no use to anyone,” was the judgment even of someone within the government.

Because of the shortened consultation time, feedback from industry groups was not incorporated into the law. “The procedure is not OK,” was the verdict from one association. “There is no longer any interest in outside views,” said another. The trade unions are equally angry: in a position paper on the new toll laws, the trade union federation, the DGB, said that “not for the first time, democratic customs have been disregarded” and that the government had “limited interest in political discussion.” The DGB suggested that “legislative process without appropriate consultation period should be subject to judicial review”—a threat to take a case against the government to Germany’s Constitutional Court.

In theory, outside views influence the law during its passage through the stages of the parliamentary process. But now the process itself is regularly being cut short. For example, a major reform was agreed late last year between the federal government and the 16 state governments to overhaul funding for states, beginning 2020. But the highly complex package of new regulations is to be pushed through parliament by the end of March.

Legislative process without appropriate consultation period should be subject to judicial review. Position paper, German Trade Union Federation

Alongside the new funding arrangements, that law contains controversial proposals to centralize—and possibly privatize—future road-building in a single agency beyond the reach of parliament. New federal powers include greater access to tax data, and more powers over schools. Parliament has only assigned a single week for expert hearings on all these issues. Parliamentary deputies are now warning that the accelerated process will lead to serious errors.

The president of the Federal Audit Office, Kay Scheller, also warned that the planned Federal Highway Agency was a dangerous reduction of parliament’s powers. Future parliamentarians should have control over issues like tolls and highway building, he said, “Otherwise these key elements of national growth and prosperity will simply be a black box for parliament.”

However some parliamentarians seem keen to resist the government’s accelerated legislation. On Wednesday, the all-party Bundestag budget committee unanimously declared that the schedule for the federal-state reform was impossible, suggesting it be brought back in summer for proper discussion.

 

Daniel Delhaes reports on politics, transport and airlines from Handelsblatt's Berlin office. Martin Greive is a correspondent for Handelsblatt based in Berlin. To contact the authors: [email protected], [email protected]