FECL 11 (December 1992/January 1993):

'DEREGULATION' OF LEGAL AND INSTITUTIONAL FRAMEWORKS - A HANDY TOOL FOR SHIFTING POWER FROM LEGISLATIVE TO EXECUTIVE BODIES

Neo-liberal concepts earlier applied to free market-economy, now appear to spread into our political systems.

The gradual 'deregulation' of institutional and legal frameworks by European executive branches of government in order to circumvent public debate and democratic control has been an important phenomenon closely linked to the process of European harmonization. A first step towards deregulation was made when ECgovernments chose to harmonize their asylum, immigration and internal security policies within the framework of intergovernmental agreements rather than within the institutions of the Community (e.g. Schengen agreement, Dublin-Convention).

By doing so, they managed to avoid transparency and escape democratic control both by Community bodies as the European Parliament or the European Court, and national parliaments whose role was reduced to the mere ratification of conventions post eventum.

Now, we are experiencing the next step in governmental deregulation attempts: As the ILPA very accurately remarks in commenting on the London Conference, "[the] Ministers do not intend to make a further effort to produce conventions in respect of the immigration and asylum matters. In view of the singular lack of success in getting the Dublin Convention ratified or the External Borders Convention finalised, the Member State governments have moved away from this format." Indeed, the governments and administrations of the Member States appear to be in search of frameworks even more effective than the instrument of intergovernmental agreements in order to ensure smooth implementation of common political aims, undisturbed by what they seem to consider as childish obstruction by their respective legislative branches (parliaments), the judiciary and - public opinion. Thus, in London Ministers have moved to a new format: The documents produced for the London Conference were entitled, variously, 'Resolutions', 'Conclusions' and 'Recommendations'. Rather than aiming at some form of harmonization based on common institutional, legal and procedural frameworks, these formats (which are not legally binding as such) simply require Ministers to bring their national practice into conformity with the principles set out therein by a specified date. In other words, the Ministers, having reached agreement on common policy aims, pledge to implement these policies in their respective states, but instead of being bound by common, formal institutional frameworks which tend to give rise to the problems above, they are free to enforce these policies "individually", each in his respective Member State, and using the national legal and institutional frameworks which are most likely to elude disturbing interference of would-be opponents.

Just about a year ago, the Ad Hoc Group 'Immigration' stated the following in a confidential document on the harmonization of asylum law, produced for the Maastricht Summit:

"If, in striving for harmonization of asylum law, one lays too much weight on the uniformisation of procedures for the Twelve, the process of harmonization is likely to be slowed down, very simply because of the complexity of the problem. Indeed the status of more or less independent administrative bodies, as well as the role of the national judiciary in respect to the asylum procedure are questions affecting fundamental aspects of the organisation of the state.

This does in no way mean that nothing should be done for trying to harmonize the formal aspect of a law in the sphere of asylum. It would certainly be desirable to convene on the length of the examination of applications on the setting up of a uniforme procedure of priority with respect to the handling of manifestly unfounded applications, etc.

In the short term, it would however be advisable to give priority to the work aiming at the harmonization of the basic rules governing asylum law (règles de fond du droit en matière d'asile). If one thus can obtain tangible results, one will at least make sure that the outcome of the procedure will be the same every where, no matter how the procedure is organized in the various states." [Ad Hoc Group 'Immigration', 5.11.91, SN 3775/91 WGI 897 AS 96, translated from French by the author].

In the aftermath of the London Conference of November 30, 1992, the true meaning of these Ad hoc reflections should become more clear: avoid common institutional and legal frameworks. Define your common political objectives and get them through by deft use of the national instruments of government you control best.

Deregulate and rule by ad hoc-directives, administrative fait-accomplis and "informal" (read: confidential) European ministerial camraderie.

This seems to be the new motto of national and European executive branches of government.

To return to the London Conference of Immigration Ministers: According to the ILPA, "it is assumed" that recommendations and conclusions have "less force than resolutions". The ILPA expresses doubts on the effectiveness of the above formats, considering "the difficulty which the Commission and the European Court of Justice have in forcing Member States to bring their national laws in conformity with legally binding Community law". Although this is true with regard to issues where the governments of the Member States have conflicting interests, it can be doubted that harmonized effectiveness will be hampered in a domain as asylum, unanimously seen as a national burden by all Member State governments.

Further, by following the precious advice of the Ad Hoc Group, Member State governments will be less hampered by the limits imposed by "binding" common institutional and legal frameworks. On a national level, one can make out a growing tendency in recent years, to shift the genuine content of law away from legislation to ordinances, executive regulations and administrative directives, leaving the interpretation and eventual practice-oriented "adaption" of law to the discretion of the government. This trend towards a power shift from the legislative to the executive branch has been increased by a regrettable inclination among parliaments to accept ever more 'elastic' bills which open the door for extensive governmental interpretation.

Terms as "manifestly unfounded", "generally no serious risk of persecution" and many more to be found in a growing number of national asylum laws reveal such elastic legislation and should be rejected as unacceptable in any state governed by law. They leave the door wide open to arbitrary and discriminatory practices and government beyond control.

The guidelines agreed by the 12 Immigration Ministers in London for determining "manifestly unfounded" applications, "safe" countries ("generally no risk of serious persecution) and "third host countries" are telling: First, a list of very restrictive guidelines (based on the proposals contained in the Ad Hoc Group's confidential preparatory documents) is agreed upon (e.g. the formal compliance with international standards of human rights and democracy; the obligation for a refugee, to seek protection in a neigbouring region, before seeking asylum in an EC-State, etc.).

Second, probably as a reaction to vehement criticism from Human Rights NGO's following the leaking of the Ad Hoc Group's proposals, the Ministers add some more "soft" elements of assessment, thus making the list fairly contradictory and vague.

Third, it is left to the individual discretion of each Member State, to make its own assessment of the elements of assessment in order to establish its national practice with regard to "manifestly unfounded" applications, third host countries and "safe" countries.

No need to say that such can but lead to "informal" governmental harmonization outside any common institutional framework and, obviously, based on the lowest common denominator of civil and human rights.

The development of European harmonization policies - not only in the field of asylum - will soon show, if the above is a too pessimistic and negative assumption of things to come.

Nicholas Busch