PROCEDIMIENTOS DE CONTROL, SANCIÓN Y CERTIFICACIÓN INTERNA CERTIFICACIÓN INTERNA.

Unlike the process of legislation and the practical cooperation due to party political constraints, the options for interaction reviewed in this Section are more confronta- tional in the sense that they allow the Bundestag to interfere considerably with the in- dependent workings of the Bundesregierung. Especially in the hands of the opposition, they can develop into powerful tools for political control.

287

The German equivalent to the UK’s Liberal Democrats

288

As it happened to the last Schröder government (2002-2005) who was faced with a 2/3 majority against him in the Bundesrat and hostile opposition parties.

The responsibility for the budget is one of the most fiercely protected rights of any par- liament, the German literature tends to refer to it as the ‘Königsrecht’ – literally the ‘royal’ right of a parliament.289 Historically speaking, the power to control the budget was one of the earliest parliamentary rights to develop - already Magna Carta listed it among the concessions made by King John290 and with the Bill of Rights 1689, it finally became political reality that the monarch could not raise taxes without parliamentary approval.291 It was fought over for good reason - control over the budget enabled the parliament to control the monarch’s activities in a very direct way: without the power to raise the money necessary to raise an army and to pay for weapons, it was impossi- ble for the monarch to wage war. The ultimate control over war and peace was thus – in a practical and very real sense – in the hands of the parliament. As Montesquieu pointed out:

“… Si la puissance exécutrice statue sur la levée des deniers publics autre- ment que par son consentement, il n'y aura plus de liberté,..."

“… If the executive could control the raising of funds all by itself, there would be no liberty any more…”292

The Grundgesetz follows in that tradition and allocates ultimate decision-making pow- er over public spending (the annual budget as well as control of expenses made) to the national parliament, specifically the Bundestag.293 Despite the fact that the Bundesre-

gierung holds the majority in the house and can usually be sure of winning the vote,

this allows the Bundestag considerable influence over the government’s policy deci- sions for two reasons: for one, the political impact of the debate is considerable. The debate on the budget is considered one of the most important events in the annual political calendar that is used by the members of the Bundestag, especially by the op-

289

Hopfauf (n 233) 68.

290

"...No 'scutage' or 'aid' may be levied in our kingdom without its general consent...", Section 12 of the ‘Magna Carta 1215’ (English translation provided by the British Library) <http://www.bl.uk/magna- carta/articles/magna-carta-english-translation> accessed 15 April 2016.

291

“… That levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of

Parlyament for longer time or in other manner then the same is or shall be granted is Illegall…”, ‘Bill of

Rights 1688’ (1688) <http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction> ac- cessed 15 April 2016; Alder (n 155).

292

English translation quoted after: Montesquieu (n 130).

position, as a general review of the government’s policies.294 It usually attracts consid- erable media attention which allows the Parliament to fulfil one of its most important functions: to provide a platform for the exchange of a broad spectrum of opinions and to create transparency and accountability of the government vis-à-vis the elec- torate.295 In its jurisprudence, the Bundesverfassungsgericht has used this allocation of responsibilities as an argument to strengthen the Bundestag’s position on financial matters vis-à-vis the Bundesregierung. Seen from the perspective of the separation of powers, the repercussions for the relationship between the executive and the legisla- tive are considerable: the government’s right to protect the independence of its inter- nal decision-making processes is much more limited when it comes to providing access to information about budgetary affairs.296

Secondly, as the right is officially allocated to the Bundestag as a whole, it can turn into a powerful tool in the hands of the opposition when used as the basis for an investiga- tion within the framework of an enquiry committee. As the jurisprudence of the Bun-

desverfassungsgericht outlined below illustrates, there are not many instances where

the executive can legitimately refuse to hand over the requested information.297

Using the doctrine of separation of powers, the Bundesverfassungsgericht strength- ened the rights of the opposition in this context, for example to prevent the parlia- mentary majority from amending the mandate of the enquiry committee in order to subvert the enquiry as a whole and/or to turn it away from the actions of the govern- ment the opposition wished to scrutinize.298 The Bundesverfassungsgericht held that in a parliamentary system the tension necessary for an effective control among the pow- ers did no longer exist between the government and the parliament as such, but rather between the governmental majority in the parliament and the opposition/ the parlia- mentary minority.299 In light of that fact, the enquiry rights would allow for an effective

294

BVerfG, ‘Greek Bailout/ EFSF’ [2011] BVerfGE 129, 124.

295

Hans Hofmann, ‘Artikel 20’ in Bruno Schmidt-Bleibtreu, Hans Hofmann and Axel Hopfauf (eds), Kom-

mentar zum Grundgesetz (12th edn, Carl Heymanns Verlag 2011).

296

BVerfG, ‘Informationspflichten Der Regierung’ [2004] BVerfGE 110, 199.

297

BVerfG, ‘Minderheitsrechte Im Untersuchungsausschuß’ (n 250).

298

BVerfG, ‘Untersuchungsgegenstand’ (n 250) 85.

control of the government and the majority it controlled only if they could be used ef- fectively by the opposition.300 Hence, it was particularly important that that function and those rights could not be undermined by the government by using its majority in the Bundestag to change or amend the mandate of the enquiry committee in order to frustrate the investigation as such or to slow it down to such a degree that its purpose could no longer be fulfilled. Therefore, the only amendments that were acceptable against the wishes of the minority could be those that clarified the mandate or added issues that were necessary for an objective review of the issues under investigation.301 However, the Court stressed that the majority had the burden of proof on this point as it had to be obvious that the amendments met those criteria. If it was not, they were automatically inadmissible.302

Furthermore, once the enquiry was under way, the committee had the right to gather all the evidence it needed to conclude the investigation and the executive had a duty to cooperate by providing the files requested or by giving its civil servants permission to appear as witnesses.303 The executive had no discretion304 to refuse access to files or witnesses on the grounds for example that a disclosure would be against the best in- terests of the nation or that confidentiality issues were at stake. The Bundesverfas-

sungsgericht stressed that the protection of the interests of the nation was the joint

duty of both government and parliament and thus as a general rule, the government could not rely on this argument against the parliament in order to refuse access to files unless confidentiality could not be ensured.305 Overall, to refuse access was to be the rare exception, not the rule, and acceptable reasons were mainly linked to the protec- tion of the government’s internal decision-making processes which the Bundesverfas-

sungsgericht considered to be part of the executive’s core.306

300 ibid 86. 301 ibid. 302 _{ibid 88.} 303 BVerfG, ‘Flick-Untersuchungsausschuß’ (n 250) 129. 304

BVerfG, ‘Untersuchungsausschuss Geheimgefängnisse’ (n 237) 118.

305

BVerfG, ‘Flick-Untersuchungsausschuß’ (n 250) 134.

D. Conclusion

As the survey of the Bundesverfassungsgericht’s jurisprudence illustrates, the Court’s approach is based in theory to a certain extent, but is overall very pragmatic and driv- en by the desire to resolve the practical conflict at hand.

The Court’s overall approach to the separation of powers may be described as very pragmatic and flexible – instead of attempting to define and delineate each power precisely, it uses the separation of powers in combination with in particular the princi- ple of democracy and fundamental rights protection in order to determine the scope and limits of each power’s sphere of influence and their relationship in the context at hand. In addition, its overall focus is much more on the element of cooperation rather than that of separation, probably due to the fact that it considered the latter to be se- cured by the Grundgesetz itself through its provisions on the institutions. Moreover, the conflicts emerging from the system of parliamentary democracy which the Court had to resolve revolved far more around the need to regulate mechanisms for mutual control rather than to protect the legislative or the executive from being usurped by the other. The limits to that flexibility can be found in particular in the Rechtsstaat principle and the requirement to protect each power’s core.

The link to the literature in terms of explicit references is tenuous which could be seen as confirmation that the theory is of little use ‘in the field’: certainly questions of pow- er delineations or discussions of the underlying purpose of the theory – issues that are widely discussed in the academic literature – are rare to non-existent. The Court does provide very little in terms of positive definitions or explanations - what exactly may be necessary to achieve ‘mutual control, limitation and moderation’307 is not explained.

The mechanisms for the mutual control existing between legislative and executive pro- vide each power with opportunities to exercise considerable influence, depending on

the situation. They are largely procedural and political in nature, so do not lend them- selves easily to be enforced before the Bundesverfassungsgericht. The overall image that emerges is that the separation of powers is one element in the toolbox of the Court that helps it to shape the relationship between the Bundestag and the Bun-

desregierung. The principle of democracy, the Rechtsstaat principle and in particular

fundamental rights protection are recurring themes that influence the balance of pow- er between institutions, sometimes just as much as the separation of powers.