TY - JOUR
AB - Abstract This Article seeks to improve our understanding of the institutional conditions of parliamentary control. The effectiveness of control is a key concern of contemporary democratic politics. The challenges legislatures are facing are similar in different political systems: most involve oversight of executive decision making at the international and supranational level and the control of domestic and international security policies. Constitutional scholarship often responds to alleged deficiencies of parliamentary control by claiming a general principle of transparency, including broad powers of the legislature to request information from the executive. This Article argues that the political strength of legislative control depends less upon some overarching normative principle but on the institutional and procedural framework in which it operates. In particular, the constitutional separation of three independent branches of government yields an utterly different notion of control compared to parliamentary systems. Parliamentary constitutions understand control not only as a check upon the executive branch, but also as an instrument which secures the steady confrontation of the government with both majority and minority in the parliament. Effectiveness and scope of parliamentary control are, hence, defined by the institutional idea of the cabinet. A comparative analysis of American, French, German, and EU parliamentary law shows that procedural rules mirror to a large extent the respective constitutional relationship between the legislature and the executive. The Article argues that parliamentary control can only be strengthened by a reinforcement of the peculiar institutional features a constitution provides for this purpose. Insofar as a constitution follows the parliamentary type, this implies a reinforcement of the personal character of legislative control. Introduction After eleven months of negotiations, the European Commission in December 2015 eventually agreed to give all members of the European Parliament access to the classified drafts of the Transatlantic Trade and Investment Partnership (TTIP) agreement. “All MEPs will now be able to exercise their duty of democratic scrutiny of the TTIP talks,”1 the responsible committee chairman hastened to explain. The terms of democratic scrutiny read as follows: the texts were made available in a secure reading room at the European Parliament under the surveillance of Commission officials. Members of Parliament (MEPs) were allowed to take handwritten notes only.2 Mobile phones and all other electronic devices were forbidden inside the reading room. MEPs were allowed to use their insights “as a basis for their political actions,” but could not cite or circulate any information nor use it in public debates.3 National governments have granted their MPs access to the same documents under similar terms.4 It seems a question of definition whether such settlements, increasingly common in recent constitutional practice, are seen as an advanced form of parliamentary control, a fair compromise between effectiveness and secrecy, or rather as a distortion of the very idea of public parliamentary scrutiny. As I shall argue in this Article, there is no straightforward answer to that question, as there is no universal institutional standard for strong and effective parliamentary control. Popular normative conceptions such as “transparency” have little substantial meaning if they are isolated from a specific constitutional context. Rather, the institutional design of legislative questioning and oversight depends greatly on the respective overall constitutional regime type. The reasons why legislatures have an ever-growing need for information5 have been debated ever since Max Weber famously outlined the case for modern parliamentary control in the early twentieth century.6 “Information” and “knowledge” are keys to political power; legislative control of the executive branch must therefore include access to information. And indeed, theoretical arguments in favor of broad powers of the legislature “to know” are strong. Such powers are endorsed by all guiding principles (or catchphrases) of the prevailing theory of democratic constitutionalism: “openness,” “accountability,” “participation” or “responsivity,” and, most of all, “transparency.” None of these principles of course claims to describe the realities of democratic politics. Rather, their implicit repudiation of institutional autonomy of both the executive and parliament echoes a common polemic against an “executive unbound,”7 less and less addressable by parliamentary control and oppositional contestation. Transparency is widely regarded as the paradigmatic feature of good institutional design and as a universal standard of legitimacy.8 Transparency is an essential part of accountability, the “uber-concept of modern times,”9 and, hence, a guiding principle of contemporary law and politics. Legislative access to executive information is therefore often conceived as the countervailing power against a widespread perception that executive power increasingly eschews established forms of electoral accountability and popular democratic control10: transparency equals democracy. As I will argue in this Article, this view is simplistic and misguided. The good normative case for “openness” and “transparency,” and for a wide scope of parliamentary powers to request information from the executive, does not make a robust constitutional foundation expendable.11 Conflicts regarding access to sensitive information are a part of, and are situated within, the overall framework of political institutions of a given constitution; and it is this framework, rather than some abstract principle, that determines what openness means in concrete constitutional terms. To defend this claim, I will confront the case for broader parliamentary control through information with a more structural perspective on the legislative–executive relationship in different constitutional systems in order to provide a better understanding of the institutional embeddedness of parliamentary access to information. In doing so, I will reach a set of more general conclusions on the conceptual problems of parliamentary control, which so far have not attracted much scholarly attention.12 I will show that the analysis of parliamentary questioning and control not only helps to understand legislative behavior and the function of legislatures,13 but also provides unique insights into the operative structure of executive accountability. The research question addressed by this Article therefore is twofold: (1) How do different types of constitutions and different systems of government affect the legal structure and procedural design of parliamentary questioning and access to information? And vice versa: (2) How does institutional and procedural change in this field transform the institutional relations between the legislature and the executive? The argument presented in this Article draws on a comparison between constitutional systems with peculiar institutional features: American constitutional law and British constitutional law represent the most distinct types of a presidential constitution and a parliamentary constitution respectively, each with a genuine type of legislative control. The three other constitutional regimes I will discuss—France, Germany, and the EU—combine features of parliamentary government with elements of greater institutional independence of the executive branch from parliament, which significantly affects the law and procedure of parliamentary control. This is obviously true of the French “semi-presidentialism,” in which a cabinet government is responsible to parliament and subject to parliamentary control and questioning, but it is also true for Germany and the EU. The relations between the European Parliament and the Commission—whose members are picked by member states—are governed by the principle of incompatibility; but some elements of parliamentary government have been adopted recently, among which the right to elect the president of the Commission and the right to question the Commission are of the greatest importance.14 Also, the European Parliament’s oversight functions do not merely result from its legislative powers, as the Commission and the Council participate equally in the ordinary legislative procedure as outlined in Article 294 of the Treaty on the Functioning of the European Union (TFEU).15 In its power of scrutiny, the European Parliament is confronted not only with a “dual executive,” but also with a number of agencies without full parliamentary responsibility.16 The most complicated, and hence the most interesting, case might be the Federal Republic of Germany. The German Constitution (Grundgesetz, GG) combines the basic structure of parliamentary government with a high degree of institutional independence of both the ministers and the cabinet from parliament, mediated by the office of the Federal Chancellor.17 The individual ministers are subject to parliamentary control. While it is a question of academic dispute whether ministerial responsibility is best understood as a direct responsibility to parliament or as an indirect responsibility enforced through the parliamentary responsibility of the chancellor, the constitutional principle of ministerial responsibility as such is widely acknowledged.18 The nature of responsibility, however, is individual rather than collective. There is no collective responsibility of the cabinet in German constitutional law.19 Parliamentary questioning of ministers is therefore a touchstone of ministerial responsibility. The elements of executive independence in the German Constitution do not correspond to any independent democratic source of legitimacy of the executive branch, like in the “semi-presidential” architecture of the constitution of the French Fifth Republic. Rather, the institutional structure in Germany echoes a pre-democratic “dualist” structure of parliament and the executive branch. A second German peculiarity is the unparalleled breadth of constitutional review and the lack of a political question doctrine. Disputes over access to information are actually decided by courts on a regular basis, rather than settled informally through negotiations, as in most other political systems.20 The challenges faced by parliamentary control when confronted with the “executive unbound”—such as scrutiny and oversight over intelligence agencies and foreign policy—are very much the same everywhere. A peculiarity of EU member states is the problems resulting from information deficiencies in a multilevel architecture, namely the lack of early and full information about legislation and executive decision making at the European level.21 Whereas all national parliaments exercise control over a “political” government, the European Commission is often seen as an administrative, nonpartisan body which hinders control and questioning in a “government vs. opposition” scheme. Also, questioning in the European Parliament is often used by national opposition parties to challenge the Commission on deficiencies in the national implementation of EU policies.22 I will first discuss why the problem needs a broad comparative approach rather than issue-specific solutions (Part I). The main reason is that the substantive constitutional standards for justified executive secrecy are strikingly parallel across different constitutions, and thus cannot explain many of the existing dissimilarities. I will then point out key differences between parliamentary constitutions as compared to separation-of-power systems when it comes to the informing functions of the legislature (Part II), before discussing structural reasons why the constitutional framework of the informing legislature is in decline or at least has been challenged (Part III). This will provide a background for a more detailed comparative account of the respective legal parameters and instruments by which parliaments exercise their right to obtain information from the executive branch (Part IV). I. Towards a Comparative Critique A. The Limits of Issue-Specific Approaches The relevant scholarship and case law dealing with information-related conflicts between the legislature and the executive usually focus on issue-specific problems and issue-specific solutions. Problems typically emerge not only where state secrets in the strict sense are concerned but also where the information requested is withheld by other actors with institutional autonomy from the executive or their own secrecy interests such as independent or quasi-independent agencies,23 international institutions, and other governments or private enterprises. In particular, there has been a lot of debate recently about how to enhance parliamentary control over defense and security policy, most notably national intelligence agencies,24 where classified information is almost necessarily involved. In these cases, the “funneling” of information, namely forms of in camera handling of information, are increasingly accepted.25 A technique developed to control secret wiretapping resulted in the Bush administration’s practice of informing only a group of eight members of the congressional leadership of the National Security Agency’s warrantless surveillance program.26 Several European states27 and the European Union28 have embraced similar instruments of legislative scrutiny of intelligence agencies. With such arrangements, parliamentary control no longer equals public control. Representatives cannot use the means of parliamentary speech to confront the government and the public with evidence presented secretly.29 Procedural solutions of this sort usually struggle with the dilemma that the more the instruments of control are made powerful and efficient in covering classified information, the less they can be public and contestable, and hence lose their parliamentary character. In a case concerning the government’s refusal to answer parliamentary questions about permits for certain weapons exports, the Federal Constitutional Court of Germany rightly held that a substantially greater degree of control is guaranteed neither by the establishment of a secret parliamentary oversight body nor by information given to parliament subject under parliamentary rules on the handling of classified documents.30 Considerable efforts have also been made to use information as a tool to strengthen parliamentary influence over the executive acting on the international level, most notably in EU affairs. The rise of supranational policy making has significantly widened the areas where the executive is acting outside the framework of parliamentary accountability. Keeping national parliaments informed, and involved in the EU decision-making process,31 has been a key aim of the Lisbon reform treaty32 and triggered much of the post-Lisbon constitutional development in member states.33 This development has considerably transformed the constitutional landscape and brought about a new line of conflict between national legislatures and executives: it is no longer self-evident that only opposition parties challenge the executive on information. Parliamentary majorities, too, are struggling for more and better information. Unlike voting on legislation and floor debate, questioning is usually less controlled and monopolized by the party leadership and hence constitutes a sphere of independence for individual members.34 And yet, parliaments continue to be dissatisfied with their access to information regarding supranational decision-making processes. B. The Silence of the Constitutional Texts Why do these debates almost necessarily focus on specific policy issues? First of all, an explicit power of parliament to demand or access executive information and knowledge is not part of the textual tradition of Western constitutionalism. The fact that legislative assemblies need information to fulfill their constitutional functions is of course an old and common insight of constitutional theory. Article 2, Section 3 of the U.S. Constitution provides that the President “shall from time to time give to Congress information of the State of the Union.”35 In a similar sense, Article 8(1) of the French Constitutional Act of July 16, 1875, on the relationship between the government institutions, urged the president to bring foreign treaties to the chambers’ knowledge as early as possible.36 Other constitutional provisions are more fragmentary. Article 48(6) of the 1958 French Constitution stipulates oral question hours in the parliament.37 According to Article 43(1) of the German Grundgesetz, parliament can summon any minister to attend a session.38 But in a more specific sense, the problem is a modern one and it has become a constitutional issue only recently. The contemporary constitutional problem concerns an institutional and procedural framework for comprehensive participation of the legislature in executive knowledge. In most cases, the constitutional law of parliamentary control is governed by a heterogeneous and fragmentary range of norms. Provisions used to determine the scope and the limits of parliaments’ powers to know most notably include rules on ministerial responsibility, parliamentary investigations, and impeachment powers. But the substantive core of the issue, namely the scope and the limits of the power to seek information from the executive branch and the proper extent of executive privilege, is left to constitutional practice, procedural and statutory law, institutional dynamics, and constitutional interpretation. The bulk of the relevant provisions are parliamentary rules of procedure, anyway.39 Procedural rules can widen or reduce the scope of parliamentary control; in each case, their impact is decisive.40 This can be as technical as a time limit to the answer.41 But internal rules can also lend the right itself a new quality: Whereas under Article 230(2) TFEU the European Parliament only holds the power to question the Commission, constitutional practice and institutional self-organization have considerably broadened the scope of this instrument. Both the European Council and the Council have submitted themselves to the same regime.42 Written questions can now be addressed to the Commission, but also to the President of the European Council, to the Council, and to the High Representative of the Union for Foreign Affairs and Security Policy (rule 120(5) of the Rules of Procedure of the European Parliament).43 In a similar way, German parliamentary procedure has developed a variety of legal obligations of the government to provide answers to parliamentary questions.44 These interpolations by parliamentary law are by no means restricted to a merely “internal” relevance. Autonomous parliamentary rules often, at least de facto, compel the executive to produce answers and to assume responsibility. Procedural rules therefore play a pivotal role in institutional change.45 Achievements of autonomous parliamentary rulemaking can eventually be embraced by constitutional amendments or constitutional interpretation. Parliamentary rules can also be entrenched, similar to constitutional norms.46 C. The Convergence of Constitutional Standards There are remarkably few differences in the substantive scope and limits of parliamentary powers to request information, at least in theory. According to a wide and almost general consensus, democratic constitutions imply a presumption in favor of openness. Withholding information from parliament therefore has to be a narrow exception.47 On that basis, case law and constitutional practice have brought about a set of criteria, which––with minor exceptions––are strikingly similar between national traditions48: these criteria are largely the generalized result of a constitutional balancing test, which considers both the demands for control and transparency and legitimate needs of state authority. Executive information relevant to a legislature can be of very different kinds. It is useful to distinguish at least three main types. The first type is information related to the implementation of statutes, which stems from administrative data unavailable to the public or parliament. An example may be aggregated data on the enforcement of immigration law by different local authorities. A second type consists of information concerning executive action and deliberation within an ongoing policy process. This can be a strategic mandate for certain international negotiations or the terms of cooperation between national intelligence agencies in a surveillance program. The third type of information refers to scientific knowledge produced and used by administrative agencies, for example a study undertaken by a scientific advisory board of the environment department on the effects of global warming. These three types obviously vary in terms of their political nature. Information of the second type usually is highly political; information of the first type can be politically sensitive according to the policy field and the circumstances; information of the third type is usually less political. The three types also differ when it comes to possible constitutional justifications for withholding such information. Scientific executive knowledge (third type) normally cannot be withheld as there are no plausible reasons to classify such information. Internal knowledge of the executive branch (first type) can only be withheld if there are good reasons for secrecy stemming from the matter itself, such as reasons of public safety. Only information of the second type can be withheld for institutional reasons, that is, because of the constitutional separation of powers. Against this backdrop, the criteria developed by constitutional jurisprudence are reasonable and largely convincing. In general, the issue at stake must fall within the competence and responsibility of the institution or minister addressed.49 If that is the case, information can be withheld from parliament only under very narrow conditions. One large domain of accepted secrecy is military affairs and “state secrets.” Further, information imparted to parliament must not violate third-party individual rights, such as the protection of legitimate business secrets.50 Any other exceptions arise from the separation of powers.51 Parliament may not, in general, claim access to internal communications within the highest level of the executive branch. Executive decision making relies on a high level of mutual confidence between the persons involved, the closer the involvement, the higher the level of confidence. In parliamentary systems, the scope of this exception is generally defined by the institutional idea of the cabinet and ministerial responsibility. As a matter of course, the exception covers deliberations and proceedings within cabinet meetings and the process of interdepartmental coordination prior to cabinet decisions. It may also include intradepartmental decision making related to future decisions of the cabinet or even decisions taken by individual ministers.52 But secrecy cannot be claimed without relation to a responsible member of the cabinet. In a case concerning parliamentary investigations into deliberations within a permanent executive committee consisting of the heads of executive branch security agencies and top senior civil servants in the relevant departments, the Federal Constitutional Court has argued that, regardless of the quality of information concerned, secrecy cannot be claimed as the committee operated outside the cabinet framework.53 It is only recently that the Court has considerably widened the scope of that rule by accepting the government’s claim of secrecy for the “selector lists” the U.S. National Security Agency’s had shared with the German Federal Intelligence Agency (Bundesnachrichtendienst),54 a federal office without any cabinet rank, in a coordinated surveillance program. The Court not only argued that informing parliament without the approval of U.S. authorities would impair the intelligence services’ ability to cooperate and thus their very functioning. It also claimed that the disclosure would affect the federal government’s constitutional authority in matters of foreign and security policy.55 The ties to the institutional realm of cabinet and ministerial responsibility may be loose and indirect, but remain vital. For the same reason, parliamentary control of state-owned enterprises through the appointment of MPs to supervisory committees, which is increasingly common,56 departs from the constitutional framework of parliamentary government. This is the key difference from a presidential executive, where the personal scope of privilege is less formalized and debatably includes also the most senior presidential advisors, as a monocratic executive tends to have a less formalized structure anyway.57 The U.S. Supreme Court famously argued in United States v. Nixon for a limited presidential privilege in matters other than military or diplomatic secrets.58 The Court invoked a general principle of confidentiality which protects “communications between high Government officials and those who advise and assist them” but also, and more specifically, the independence of the executive branch under the separation of powers. Accordingly, “the President’s need for complete candor and objectivity from advisers calls for great deference from the courts.”59 A presumptive privilege can however be outweighed by the needs of criminal justice.60 In the EU, in a 1997 judgment the then Court of First Instance took the same view on the European Commission and recognized an exception from the principle of openness “relating to the internal deliberations of the institution” with respect to “the interest of the institution alone which is at stake.”61 As a collegiate body, [the Commission] enjoys a margin of discretion which enables it, if need be, to refuse a request for access to documents which touch upon its deliberations. The Commission must nevertheless exercise this discretion by striking a genuine balance between, on the one hand, the interest of the citizen in obtaining access to those documents and, on the other, its own interest in protecting the confidentiality of its deliberations.62 A third exception with a more functional justification is usually made for ongoing deliberations within ministries or executive agencies, where the exercise of control would in fact contradict its retrospective nature and have the effect of an intervention, by which parliament would seize the power to decide instead of the executive branch.63 The relative vagueness of these substantive criteria is not a flaw of the constitutional doctrine that can be overcome by a more elaborate theory. When it comes to balancing, the outcome of adjudication often greatly depends on the constitutional climate of the day and on how the executive is able to present the facts a real problem.64 Moreover, the highly abstract nature of those criteria mirrors the dynamic nature of the underlying interbranch conflict. The problem is that substantive criteria fail to provide any satisfying solution for the problem of parliamentary information. The reason for this is time. Parliamentary information politically means immediate information. Like political agenda setting in general, information, too, is a question of timing.65 The core of the parliamentary power to require information from the executive branch is the power to publicly confront the responsible person or institution with that request at the very moment the authors of the question think best. Requests for information therefore challenge the executive dominance in setting the political agenda.66 At what might be an awkward moment for decision making, questions and interpellations coerce the executive into issuing authorized information or to publicly refuse disclosure, which in many cases will amount to at least the same level of public attention. At the point where disputes over information are resolved through negotiations or in court on grounds of substantive constitutional standards, the political momentum will in most cases be lost. The issue will then turn into a controversy over the constitutionality of the earlier refusal. But the policy dimension of the information in question will often no longer be relevant. It therefore seems clear that the constitutional law of parliamentary access to information must first of all be concerned with institutional and procedural questions. It needs to provide an appropriate framework in which the conflict can be dealt with. D. Limits of Adjudication There are, nevertheless, considerable differences when it comes to constitutional review, according to the general degree of judicial interference in interbranch relations. In the United Kingdom, for instance, a minister is not legally compellable to answer any parliamentary question.67 The effectiveness of parliamentary control thus depends on parliament’s authority rather than on its powers. The disclosure of information to select committees is, however, defined in great detail by cabinet rules.68 The German Constitutional Court’s extensive scrutiny is a rare exception in this respect, although it needs to be noted that there is no compulsory enforcement of its decisions.69 The Court of Justice of the European Union (CJEU) in principle holds jurisdiction over the Commission’s refusal to reveal information, but so far it has not handed down a single major judgment on Article 230 TFEU. Relevant complaints are usually filed by private plaintiffs on the grounds of the freedom of information directive,70 and the European Parliament possesses no robust power to challenge the Commission on grounds of effective control. In the United States, the question of enforcement arises when the president chooses to resist a request for information, and eventually a subpoena, on grounds of executive privilege. Executive privilege is a narrowly defined prerogative to be exercised in order to secure the core functions of the executive.71 The judiciary is generally reluctant to intervene in political disputes between the branches over requests for information, which are regarded as political questions.72 Because of the subpoena powers of Congress, the effect of judicial deference is reverse as compared to the European, British, and German examples. Since courts do not review subpoenas, Congress has the broadest authority in the field. Any executive official who fails to comply may eventually face contempt proceedings. But the lack of judicial enforcement also fosters bargaining solutions. In a 2008 case concerning Congress’s request to have two senior White House officials testify in an investigation, the U.S. Court of Appeals held that “declining to decide this case would be the action most likely to ‘alter’ the accommodations process between the political branches” and that “most disputes of this nature will continue to be resolved through the informal process of negotiation and accommodation. Resort to the judicial process is, after all, not a particularly expedient way to obtain prompt access to sought-after information.”73 Accordingly, there are powerful incentives for both the legislature and the executive to come to some agreement in disputes over information.74 Such incentives are usually lacking where the legislative majority and the government are acting on the same side of the conflict and where it is the parliamentary opposition that confronts the governing majority. E. Constitutional Theories of Parliamentary Control As written constitutional law does not offer very clear solutions, much depends on interpretation. How much a legislature should know and how this claim should be enforced against the executive touches upon a wide range of fundamental issues of constitutional theory. Those include the role of parliament in the public sphere, the nature of parliamentary representation, and the legitimacy of independent executive power. The most straightforward theoretical standpoint is offered by theories of democracy, which more or less identify deliberative democracy with “a strong presumption in favour of transparency and openness”75 and hence reject any secrecy privilege as inherently antidemocratic.76 Parliament is then usually conceived as a genuinely public institution and hence a promoter of transparency. Such theories usually identify democracy with open deliberation. However, the democratic rationale of parliamentary government is just as much about public deliberation as about the capacity of parliament to exercise power upon the executive. Transparency fosters accountability, but not specifically in the parliamentary sense. The more “transparent” executive institutions are, the more parliamentary control is bypassed by other institutions exercising interest-based control of executive power.77 Therefore, there is nothing inherently democratic in transparency. Secrecy, too, has strong democratic virtues: executive secrecy is a means of centralizing political power within a well-organized executive branch. The centralization of executive power is necessary to give parliamentary control an object. Executive privilege and secrecy thus limit certain checks on the government to instruments controlled solely by parliament. The metaphorical language of transparency misses the core of the problem, which is institutional rather than substantive. The presumption of openness is actually shared by all constitutions. The problem is not how it is justified, but rather how it is realized. Here, another set of theories provides some explanation. Theories of parliamentary control in political sciences often frame the relations of the legislature with the executive branch along the lines of institutionalist “principal and agent” theories.78 According to this para digm, the executive implementing statutes functions as an authorized agent of the legislature.79 The fundamental legal relationship between the branches is thus conceived in terms of delegation of power, by the electorate to the legislature, by the legislature to the central executive, by the central executive to executive departments, and so on.80 Consequently, both accountability and the duty to comply with requests for information originate in the dependent position of the authorized agent. Drawing on this half-normative, half-empirical assumption it is easy to observe all kinds of “informational asymmetries” and commitment problems on the side of the executive agent.81 Such theories usually point to the extremely unequal distribution of knowledge and resources between the bureaucracy and parliament, let alone the opposition. The case for broad parliamentary powers to obtain information from the executive branch therefore is essentially about compensation for alleged deficiencies of agency.82 None of this is totally wrong. However, the adoption of principle-and-agent theories in constitutional law usually yields an all- too-simple notion of the real complexity of the interactions between the branches. Such theories do make some sense in a separation-of-powers system, where the delegation of legislative power to administrative agencies is only a special case of otherwise separate branches.83 It is no coincidence that principle-and-agent theories were first used to describe the oversight functions of the U.S. Congress over independent agencies.84 Yet these theories assume a different and misleading meaning in a parliamentary system with a different chain of delegation.85 The basic dualist assumption of opposing principals and agents is at odds with the fundamental notion of parliamentary government.86 A meaningful theory of parliamentary control has to start off with both the institutional realities and the normative foundations of parliamentary government. This system of government is not so much about the compliance of independent agents with the goals of a principal but about the closest possible involvement of the personal heads of the executive (be it a prime minister or the cabinet as a whole) in the parliamentary business.87 The institutional “fusion of the executive and legislative functions” is the key feature of parliamentary government, as its theorists from Walter Bagehot,88 Albert Venn Dicey,89 Ivor Jennings,90 and Harold Laski,91 to Max Weber,92 Karl Loewenstein,93 and Wilhelm Hennis94 have tirelessly repeated.95 All fundamental institutional features of a parliamentary government, such as the right of entry and speech and the compatibility between the position of a minister and a member of parliament are essentially about this fusion.96 The same holds true for parliamentary questioning. The fusion of parliamentary majority and the executive is the key mechanism by which parliamentary constitutions ensure that control is not something merely passive, limited to the ex post review of the outcomes of executive decision making, but an active element of steady influence upon the ministers in charge of the administration.97 Parliamentary law under a parliamentary government, for this reason, is never restricted to the “internal” procedure of the legislative body. All legal matters concerning the function of parliament are necessarily inter-institutional. More than any abstract principle of “transparency,” it is this inter-institutional framework that determines what “openness” means in a political sense. Situated between executive and legislative power, this framework greatly depends on the general structure of accountability between the executive and parliament, most notably the scope of ministerial responsibility. This framework is, however, anything but stable. As the following Part demonstrates, it is characterized by a fragile balance of confidence and control.98 The meaning of the “transparency” paradigm is shaped as much by the functioning of that balance as the balance of confidence and control is altered by the transformation of executive accountability through a “principle of openness.” II. Conceptualizing Parliamentary Questioning and Control Parliamentary control has been defined as a “right to comprehensive information relating to all executive actions. This right is necessary for the legislator to make correct decisions, and for the legislator and the public to make political assessment of the achievements of the executive and of parliament itself, which provided the executive with legislative functions.”99 But, of course, a general right of this sort does not exist. All instruments of parliamentary control are part of the general structure of accountability provided by a constitution. Those instruments draw their concrete meaning and scope from the institutional settlement they are a part of. But the design and practice of these instruments also fleshes out interbranch relations and eventually may transform them. For comparative purposes, at least two different distinctions have to be established. The first concerns different conceptions of parliamentary powers to seek information from the executive (Part II.A), the second is shaped by the respective system of government (Part II.B). Both distinctions have the strengths and weaknesses of an ideal typology and do not claim to establish a full description of any particular constitution. A. Information, Investigation, and Legislative Power As there is no universal blueprint for a parliament or parliamentary functions, the nature of parliament’s power to question the executive can be conceived in very different ways. The English Parliament is the archetype of a legislature with inherent informing powers. The common law assigns to the parliamentary assembly powers and privileges that constitute its sovereign institutional status in the legal realm. Similarly, both in the United Kingdom and the United States a robust tradition assigns to the legislature informing functions, including investigative powers and the power of impeachment, which correspond to the institutional origins of the English parliament as a court.100 The English High Court in Stockdale v. Hansard famously defined the Commons as “a great inquest of the nation,” which exercises functions of a high court of justice and of a jury.101 The framers of the U.S. Constitution embraced many elements of this conception of legislature, including impeachment and subpoena powers.102 The U.S. constitutional law tradition, too, conceives the rights of the legislature more comprehensively. As Alan Barth put it in his seminal 1955 book Government by Investigation, “[t]he power to investigate is coeval with the power to legislate and indispensable to it. It serves the legislature in two vital ways: (1) as a direct aid to legislation; (2) as a brake upon the power of the executive branch.”103 The U.S. Supreme Court essentially took the same view in Watkins v. United States (1957) and explained that the power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.104 A few years later, the Court affirmed in Eastland v. United States Servicemen’s Fund: To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause in derogation of the “integrity of the legislative process.” . . . the act “of authorizing an investigation pursuant to which . . . materials were gathered” is an integral part of the legislative process.105 This idea of inherent informing powers of the legislature is mostly absent in the continental constitutional tradition, where parliamentary powers are more closely tied to the function of legislation, deliberation, and voting, and where, unlike in Britain, the institutional idea of the legislature does not stem from a court. This is famously true of France.106 German constitutional thought, too, has a long history of identifying parliament all too closely with the function of legislation, which until the early twentieth century was the only power of parliament.107 German constitutional doctrine still has inherent difficulties with the proper conceptualization of parliamentary investigative and oversight functions. Informing functions are usually not considered as an inherent power of parliament, but rather as a different, quasi-judicial or quasi-administrative function of the legislative body.108 How do these differences reflect on the respective conceptions of parliamentary questioning and control? First of all, continental parliamentary law draws a much clearer distinction between parliamentary investigations and parliamentary control.109 In cases of alleged misconduct in office, parliamentary investigations are a means of “self-information” by which a parliamentary committee takes its own evidence wherever it wishes.110 Parliament may only in exceptional circumstances assume functions and powers of a court, and only if it is acting through an investigative committee under a special procedure. On the other hand, parliament resorts to interpellation and questions to access evidence and information taken by and within the executive branch. Outside special investigative procedures, informing functions of the legislature are therefore usually justified because they are indispensable to due process. Parliamentary control is then often regarded as an auxiliary function of legislation rather than as a means of checking up on the executive. It is seen either as a preparation or a precondition to rational democratic deliberation, and hence linked to an outdated model of parliamentary power preoccupied with legislation. German constitutional thought, in particular, has had a long tradition of idealizing parliamentary decision making as a procedure of unbiased deliberation.111 Such a view upholds an apolitical concept of information aimed at more “rational” decisions by the legislature. But information given to parliament by the executive branch upon request is less relevant to legislative deliberations than information provided by parties, constituencies, pressure groups, the media, whistleblowers, or other actors. The true function of executive information is different. Information provided by the government is never merely about the respective issue itself; rather, it is always and essentially about a responsible holder of a public office representing the respective information in parliament. For this very reason, the duty to answer generally implies the duty to justify the refusal to answer.112 The link between information and an individual official does not, of course, depend on a particular system of government. The legal means of ensuring it, however, differ substantially. B. Structures of Accountability The second general distinction in an ideal typology can be drawn between different systems of government. Parliamentary control as a power to access executive information has an entirely different nature and function in parliamentary constitutions, compared to presidential constitutions.113 The meaning of control by the legislature is different in either type and hence has a peculiar constitutional structure. The key differences are not about the scope and enforcement of the powers of parliamentary control, but about the principle governing legislative–executive relations. This guiding principle is control in a separation-of-powers setting, and an unstable balance of confidence and control under parliamentary government. Parliamentary government therefore corresponds to a notion of parliamentary control which is personal rather than institutional. 1. Parliamentary Government vs. Separation of Powers If powers are separated in such a way that the executive does not depend on the confidence of parliament, then control is the primary (and during a divided government may well be the only) mode in which the legislature can exercise influence on executive behavior other than by adopting and amending statutes.114 By contrast, the essential democratic idea of parliamentary systems consists in the dependency of the leading personnel of the executive branch upon the continuing confidence of the legislature,115 secured by a set of effective sanctions which both the legislative majority and minority can impose on the government. Under a parliamentary government, control and confidence are two competing modes of interbranch relations different from each other, both vested in the majority and minority, respectively, and deeply intertwined. Parliamentary confidence is not only more and a different thing than control without objection.116 The confidence of the legislature’s majority is not a passive attitude of general agreement, but a steady engagement of cabinet and parliamentary majority with each other to pursue shared political goals.117 The principle of confidence that governs the relations between the cabinet and the legislative majority, is in some sense opposed even to parliamentary control. Since parliamentary confidence relies on a cabinet being involved as closely as possible in parliamentary politics, the exercise of control necessarily establishes some distance between the controller and the controlled and hence is at odds with the notion of political confidence. As far as the governing majority is concerned, the exercise of oversight functions can be an element of stabilizing government, especially when it is exercised by backbenchers,118 but it plays no essential role in the majority’s parliamentary behavior. In a recent ruling on parliamentary minority rights the German Constitutional Court called this an “internal oversight of the government exercised by the members of Parliament who support the government.”119 In contrast, control and oversight are the main functions of parliamentary opposition. Usually, the more a constitutional system follows the ideal type of parliamentary government, the more the instruments of parliamentary control are designed as instruments of the opposition. But they are not construed only in the opposition’s interest; rather, the direct and unmitigated discursive confrontation of ministers with both parliamentary majority and the opposition is a constitutional necessity of parliamentarism.120 Even though each given constitution deviates in many respects from this ideal typology, they all nevertheless demonstrate two crucial facts. First, in parliamentary systems, parliamentary control has an irrefutable personal element: it is more than a genealogic coincidence that the right to request information has developed from oral and then written questions to members of cabinet.121 The constitutional rationale of questions and interpellations is the steady enforcement of ministerial responsibility. The procedure by which a certain piece of information is requested by and given to parliament serves to ensure that the information is automatically assigned to an individual minister who is politically responsible. Questions are asked not so much to seek accurate information, but to seek public authoritative information.122 This is the pivotal function of parliamentary questions, interpellation, and the instruments developed therefrom. The instruments of parliamentary control therefore prove to be the stronger the closer they are intertwined with the respective constitutional structure of ministerial responsibility.123 I will come back to this point.124 2. Legal and Political Accountability The open balance of confidence and control is not merely a political principle, but results in a different nature of accountability. Where the cabinet depends on the confidence of the legislature, the accountability of the executive is usually political rather than legal. All instruments of enforcing executive accountability are, of course, political in a general sense, since they work with strong elements of show, drama, and performance. This is best demonstrated by the many, highly important oral instruments of parliamentary questioning and control.125 The key difference between legal and political accountability is the following: in parliamentary constitutions, the interaction between the cabinet and parliament as a whole is usually less formalized in terms of constitutional law than the relationship between majority and minority within parliament. Since parliament elects the head(s) of the government, most other issues, including instruments of questioning and control, can be resolved by practice or parliamentary rules of procedure. There are in general few checks and balances between parliament and the cabinet.126 The historical development of parliamentary government shows that the constitutional importance of formal legal instruments to enforce responsibility has decreased over time. The breakthrough of ministerial responsibility in the political sense happened simultaneously, not with the strengthening but rather with the removal of the older legal and quasi-penal instruments of control of the ministers.127 The exclusively political, rather than judicial, control of the ministers is the key difference between modern parliamentary systems and their historical predecessors.128 The parliamentary principle of confidence only emerged when the legal instruments of enforced control, such as impeachment, had disappeared. What first evolved in early modern England had a parallel history in nineteenth-and twentieth-century France and Germany. In France, the instrument of ministerial impeachment lost its pivotal political function under the parliamentary government of the Third Republic.129 Léon Duguit observed in the mid-1920s that the theory of ministerial crimes was only plausible as long as the difference between political and criminal responsibility was not yet established or in a country where the responsibility is enforced by impeachment, which is legal and political at once.130 In Germany, ministerial impeachment was a traditional demand of pre-democratic liberals in the nineteenth century.131 It was not part of the 1871 Constitution, when the Reichstag successfully claimed the right to interpellations against ministers, which eventually paved the way for the establishment of parliamentary government in 1918.132 But when ministerial impeachment was eventually realized by the Weimar Constitution, the parliamentary principle of confidence had deprived it of its positive function.133 While the relationship between parliamentary majority and the executive is typically political rather than legal under a parliamentary government, the reverse is equally true, as the U.S. Constitution demonstrates. Legislative impeachment of federal officers has survived constitutional change. The high degree of legal formalization that characterizes congressional oversight in the United States is intrinsically connected with the underlying checks and balances system. Congress, under Article I, holds the inherent powers to issue a subpoena and ultimately a contempt of Congress resolution to seek whatever information it considers necessary.134 Every part of the executive has a legal duty to comply with congressional subpoenas.135 Unlike in parliamentary systems, this power to request information is a check on the executive branch rather than a means of enforcing parliamentary accountability. This conceptual difference between legal and political notions of accountability yields two major consequences. First, the U.S. Congress is able to force anyone to appear, testify, and produce documents at any time, regardless of any special investigative procedure.136 Under systems with ministerial responsibility, by contrast, the power of parliament to dispose of the more formal procedural instruments of judicial investigations is typically restricted to formal parliamentary investigations. This is the case in Germany (Article 44(1) GG) and in many other parliamentary regimes.137 Other constitutions know the conceptual difference between investigations and normal oversight functions, but effectively grant few or weak investigative powers to parliament, as for instance in France. The formal powers of investigation committees (Article 51-1 of the French Constitution) are still remarkably poor;138 not quite as poor, however, as those of the European Parliament, whose right to appoint committees of inquiry was only created by the Treaty of Maastricht (now Article 226 TFEU). The EU Parliament’s power to investigate is severely limited by the fact that any secondary legislation concerning the procedure requires the consent of both the Commission and the Council (Article 226(3) TFEU). The inter-institutional rules created in 1995139 are still in force. The European Parliament has recently proposed amendments to these rules to broaden its investigative powers, which would include the right to request documents and to access any information within reach of the EU institutions, to hear EU and member states’ officials and summon witnesses, and to impose effective sanctions on anyone failing to comply with such requests.140 As no agreement was reached with the Council or Commission on these proposals, the Parliament adopted a new legislative resolution in April 2014 to make sure that the first proposal did not lapse as unfinished business at the end of the parliamentary term (rule 229 of the Rules of Procedure). New negotiations of the Parliament’s Committee of Constitutional Affairs with the Council and the Commission have not yielded any results so far. There is a second legal difference related to the two notions of accountability associated with parliamentary government and the separation of powers respectively. This second difference is more subtle but equally important. Unlike congressional requests for information, which can take hold of any part of the executive branch, including independent agencies beyond the reach of the presidency, parliamentary grip on the executive is usually restricted to the cabinet as the realm of ministerial responsibility, unless a formal parliamentary investigation takes place. This is the case in Germany, but also in the EU, where parliamentary investigations can address any person of office with requests for information (article 3(4)–(8) of Annex VIII of the European Parliament’s Rules of Procedure), whereas questioning by standing committees is restricted to the Commission. That is to say, in parliamentary systems, the scope and width of political control is usually defined by the institutional idea of the cabinet as the interface between parliament and administration.141 The fact that requests for information must be addressed to the cabinet is the flipside of its political responsibility: cabinet both channels and controls the flow of information between all parts of the executive and the legislature.142 III. Transformations It follows from all these observations that the institutional design of parliamentary questioning and control depends greatly on the respective overall constitutional regime type, whereas their scope and strength do not. The different types of constitutions—parliamentary, presidential, and mixed types—have each developed effective procedures of keeping parliament informed. Nevertheless, parliamentary control is widely considered to be deficient. Recent political debates and scandals involving intelligence agencies, military and security politics, and international trade negotiations provide evidence that indeed, parliaments lag behind a powerful executive, who increasingly escapes democratic accountability. While the instruments of parliamentary oversight remain domestic, its objects are increasingly international.143 And an increasingly pluralized and “open” executive branch has developed its own internal mechanisms of control, hereby fostering an administrative legitimacy largely independent from parliamentary accountability.144 What accounts for these difficulties? Many political catchphrases, such as the “executive unbound,”145 “post-democracy,”146 and “post-parliamentarism,”147 provide appealing narratives, but they fail to provide a sufficiently detailed analysis of what is wrong with the controlling functions of legislatures. Comparative analysis has shown that the institutional logic of question-based parliamentary control depends crucially on the ability of parliament, and in particular the opposition, to take an active part in the involvement of the cabinet in parliamentary business. It is this active role that is in danger. From a constitutional perspective, at least two explanations can be taken into account. The first has to do with the fact that in an “information society,” parliamentary control is increasingly governed by a different paradigm of control of the executive (Part III.A). The second concerns the way in which information comes down to the legislature. There is a structural shift from parliamentary questioning to executive reporting (Part III.B), which also affects parliamentary control. A. Parliament in the Information Society: What Can Parliament Still Do Alone? The idea of parliamentary control implies that the legislature has or should have some kind of privileged status in confronting the executive with requests for information. Parliament can be the “grand inquest of the nation”148 because it has certain powers and privileges in requesting information other institutions lack. In John Stuart Mill’s classic formulation, “the proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable . . . .”149 This notion presupposes that in exercising public control, parliament discharges a duty that no other institution is able to fulfill. However, in reality, it is no longer self-evident that “democratic ideology requires control of administrative action by elected representatives of the people.”150 It is obvious that democracy requires control, but this control does not appear to necessitate exercise by elected representatives of the people. As a result of well-known shifts in the public sphere in modern democracies, legislatures today are merely one body among a plethora of actors exercising control. The problem is not so much that a legislature cannot act on its own in the struggle for information. That has always been the case. Parliamentary questioning very often takes up initiatives of the media151 and other actors, such as audit courts,152 independent commissioners, and ombudspersons.153 Article 228 TFEU formally established a European Ombudsman, who shall examine complaints from any citizen of the Union and report on them: In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. . . . The Ombudsman shall then forward a report to the European Parliament and the institution, body, office or agency concerned. What is wrong then with these para-parliamentary actors of scrutiny? Certainly not the fact that they influence parliamentary politics. Nor is it a fundamental problem, that many questions are in fact written by particular interest groups and then filed through MPs. This––often hypocritically––scandalized practice is, in fact, a reasonable political strategy and fully in line with the constitutional idea of parliamentary government, as long as the legislature remains the bottleneck of the process of questioning the executive. Yet, nonparliamentary actors such as interest groups are increasingly able to act outside the procedural and institutional framework of parliament, as access to knowledge is no longer a privilege of parliament. Among other well-known transformations of the public sphere, it is freedom-of-information legislation that accounts for this disjoining of the institution and the function, i.e., of parliament and control. During the last two decades, most Western states have adopted broad citizens’ rights to demand the disclosure of executive information.154 Freedom-of-information legislation is widely thought to increase administrative performance, accountability, and the general level of the rule of law.155 However, the paradigm of “transparency” through unmediated private control brought about by freedom-of-information legislation weakens, rather than strengthens, parliamentary control. Parliament cannot compete with other actors for the claim to the most effective control as parliamentary resources are limited. Moreover, the nature of control exercised by private institutions acting on freedom of information is interest based, economically biased, and issue specific. Hence it is something other than a political idea of public political control associated with the legislature. Apolitical ideologies of control bring about a depoliticization of information. It is telling that parliamentary access to information is advocated in the name of “transparency,” just as any citizen’s or NGO’s claim for a more open public administration.156 It therefore comes as no surprise that the private right of access held by citizens and the public power to access held by public bodies are often conflated.157 The ambiguous paradigm shift towards transparency also sheds light on political side effects of freedom-of-information legislation. The European Commission has quite deliberately used an individual, rights-based agenda on open government to justify its much more restrictive stance on legislative control.158 International organizations, which are largely immune to parliamentary influence, are eager to adopt transparency standards to eschew criticism concerning their democratic legitimacy.159 And even on the national level, extensive individual rights to transparency are often called for on policy areas, where more or less independent bureaucracies act outside the framework of parliamentary responsibility. The strengthening of direct control by affected stakeholder groups and the weakening of political control by the legislature are intertwined by a principle of communicating vessels. Be that as it may, if legislatures in general no longer have a privileged access to executive knowledge, all efforts to improve parliamentary grip on information will remain unsuccessful at the political level, since the factual advantages of a multi-actor information society over parliament are tremendous, structural, and fundamental. As the Hansard Society put it in a study some fifteen years ago, “one of the most significant characteristics of modern government is the wealth of information available on its performance.”160 Hence, every attempt to improve parliamentary performance on this ground will increase frustration over the advanced knowledge of both governments and other actors. While the absolute numbers of questions asked by legislatures have increased steadily, dissatisfaction with the effects of control has risen even faster.161 It is beyond question that the overwhelming majority of parliamentary requests for executive information in democratic systems are handled without dispute on a routine basis.162 But if the sheer obtainability of information is part of executive power, it triggers an ambivalent reflex in legislative politics: if any relevant knowledge exists in the executive branch, parliament must get hold of it or be disgraced. Yet, apparently, the quality of parliamentary control is something different from its quantity.163 In political and constitutional terms, however, this conclusion encourages action rather than being a cause for despair. What parliaments can do is not so much about information but about accountability. Parliamentary control alone has the procedural power to seek and enforce executive responsibility of information. Legislatures alone are able to engage the responsible personnel in a public confrontation over the relevant facts. Rather than having ministers speak to the media at a moment of their choosing, members of parliament can choose for themselves when to raise questions and demand answers. B. Executive Duties to Inform: Towards “Consumerist” Parliamentarism? The constitutional architecture of information in parliamentary government is also challenged in another and perhaps more important respect. The scheme of parliamentary requests and executive responses is being gradually replaced by the introduction of general executive duties to report to parliament, whereby parliament is brought into a passive position. Such duties to report have nothing in common with the usual practice of presidential systems where the elected president regularly, or on taking office, informs parliament of the general guidelines of executive policy.164 Rather, duties to report are called for and justified as a compensation for a loss in substantive powers suffered by the legislature on other grounds. Information serves as a recompense for a decrease in effective powers. The constitutional duty of the executive to provide information resides in different contexts and principles. Its origins lies in the history of wiretap reporting, where certain measures that would have otherwise been unconstitutional were allowed on the condition that protective procedural standards, such as reporting to Congress, be established.165 This constitutional pattern was taken up in many other states successively. In Germany, Articles 10(2) and 13(6) of the Grundgesetz stipulate reports to parliament for all kinds of secret eavesdropping and wiretapping operations. It was rightly argued that a legislature cannot fulfill its control functions if the scope and the number of executive measures are unknown, and that, instead, the executive must be forced to disclose the key facts to parliament. Other statutory duties to issue reports and documentation on certain facts have little to do with parliamentary control but aim to require a sufficient level of information on certain policies or developments be disclosed to the general public. Reports are most commonly used as a governance tool in the field of economic policy, where markets are in need of information, but there are also important legal duties to inform the public about environmental or social developments. All these examples bypass the problem of parliamentary control, which is only affected where reporting is used to compensate the legislature for the loss of effective control. The legal pattern of compensation through information only gathered momentum as a constitutional technique of European integration. Beginning in the 1990s, constitutional amendments were passed in many member states, pushing to better involve the legislatures in EU affairs.166 As early as 1992, a constitutional amendment was introduced that imposed on the federal government the obligation to “keep the Bundestag and the Bundesrat informed, comprehensively and at the earliest possible time” of “matters concerning the European Union.”167 The provision was declared to be a “compensation” for the transfer of sovereign powers to the EU.168 The obligation to provide information to parliament has been fleshed out in a comprehensive statutory framework, which aims to provide for a steady flow of information from the government to the Bundestag.169 The German Constitutional Court has drawn heavily on the information clause of Article 23 of the Grundgesetz to enforce parliamentary influence in cases in which the legislature is involved in a co-decision process on supranational—mostly EU—lawmaking.170 Taking parliamentary information seriously is probably the most fundamental contribution to the present constitutional landscape made by the German Constitutional Court and its much-criticized jurisprudence on European integration. Earlier than any other court it recognized and formulated in constitutional terms the unprecedented challenge to parliamentarism arising from an executive increasingly acting outside the framework of domestic parliamentary control.171 No other court has constitutionalized this paradigm change as emphatically as the German Constitutional Court and rooted it in the very principle of democracy.172 The most prominent examples include two judgments on the European Stability Mechanism delivered in 2012 and 2013, in which the Court established sufficient information as a precondition for the constitutionality of the exercise of the most important parliamentary powers. According to the Court, the principle of democracy under Article 20(1) and (2) of the Grundgesetz . . . requires that the German Bundestag is able to have access to the information which it needs to assess the fundamental bases and consequences of its decision . . . . Sufficient informing of parliament by the government is therefore a necessary precondition of an effective preparation of parliament’s decisions and of the exercise of its monitoring function.173 From this principle it follows that [the Bundestag] cannot exercise its overall budgetary responsibility without receiving sufficient information concerning the decisions with budgetary implications for which it is accountable. The principle of democracy under Article 20(1) and (2) GG therefore requires that the German Bundestag is able to have access to the information that it needs to assess the relevant background and consequences of its decision.174 It is important to read this argument carefully. The Court does not say that the power to request information relevant to the assessment of the consequences of a decision is implied in any particular substantive power of parliament. On the contrary, the Court holds that the very exercise of a given power can be unconstitutional if the necessary level of information is not guaranteed. If this compensation theory is taken seriously, it leads to a conflation of the two parliamentary functions: legislation and control. The powerful logic of this theory claims that the due availability of information is prerequisite to any substantive responsibility of parliament.175 As the German Constitutional Court put it in the European Stability Mechanism case, the ultimate responsibility withheld by parliament can only be exercised in a constitutional way if the necessary information is available. This means that the proper provision of information to parliament is a strict constitutional requirement. If the executive fails to provide sufficient information, decisions adopted and bills passed nonetheless can be unconstitutional.176 This argument represents a theoretical shift with tremendous consequences for constitutional review and beyond. The parliamentary power of scrutiny is confused with and imposed on parliament as a source of legality. What emerges is a kind of paternalistic parliamentarism, which brings the legislature into the passive position of a consumer who may cancel his purchases if the trader has failed to duly inform him of certain facts. The adequate information of national parliaments in the European multilevel democracy is undeniably a severe and complex problem of the integration of parliamentary government into the constitutional architecture of a European multilevel democracy.177 It hence demands specific institutional solutions that improve the exchange of information between parliaments on each level as well as between European executives and national legislatures.178 The duty to report can be a useful strategic pattern in the specific field of European integration, but not forcibly so in others. Patterns of procedural solutions adopted in one policy field often migrate to another as the relevant actors acclimate to a certain institutional practice. Yet, a certain procedure may bring about very different effects when employed in a different context. In a multilevel constitution, the duty to inform serves in the first place as a means of establishing an exchange of information between two initially separate bodies. When it comes to the relations between a national or the European Parliament and the respective executive, the effect is different, because the exchange of information is already well established, albeit on different procedural grounds. Here, the duty to inform changes the way in which information comes down to the legislature. The duty to inform transfers the institutional passiveness of national parliaments facing European lawmaking179 to other policy areas. The constitutional paradigm is also a feature of European law. First of all, the treaties state a wide range of duties of the Commission to issue annual reports on certain policy areas.180 What is far more important, however, is that a general duty to inform is now recognized in Article 12(a) of the Treaty on the European Union (TEU), which provides that “national parliaments contribute actively to the good functioning of the Union . . . through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them.”181 The clause is repeated in several other provisions, including Articles 70, 71, and 352(2) TFEU. The Protocol on the Role of National Parliaments in the European Union, which came into force with the Amsterdam Treaty, makes reference to “the way in which national Parliaments scrutinise their governments in relation to the activities of the Union” as “a matter for the particular constitutional organisation and practice of each Member State” and goes on to establish a number of obligations of the institutions to forward certain documents.182 Irrespective of the wording, the Protocol entitles institutions to directly impose their information and views on national parliaments rather than serving the latter as a means of scrutiny. The Protocol avoids any mention of a concrete power of parliaments to request information from EU institutions,183 but refers to the spectacular right of parliaments to “send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion on whether a draft legislative act complies with the principle of subsidiarity.”184 Most national constitutions have adapted their mode of control to the scrutiny of information coming down to them under the Protocol.185 The German Bundestag, for instance, has created a well-staffed administrative department responsible for keeping the House informed about European affairs. Its services include a comprehensive digital information system (EuDox) to make EU documents as well as EU-related government documents available for all members at any time.186 A slightly more active stance is taken by the U.K. House of Commons whose Standing Order No. 143 on the European Scrutiny Committee defines the scope of scrutiny by reference to a long list of classes of EU documents, but then gives the committee additional powers both to appoint specialist advisers to supply “information which is not readily available” and to “send for persons, papers and records.”187 A similar vision of parliament as a passive consumer of executive information has been established in EU inter-institutional law. Article 230(2) of the TFEU speaks of the matter in conventional terms of parliamentary questions and executive answers. Reaching far beyond this scope, the European Parliament and the Commission have agreed on a comprehensive “constructive dialogue and flow of information” as laid down in their Framework Agreement on Relations Between the European Parliament and the European Commission.188 In particular, each member of the Commission is bound, without prior request, to ensure that there is a regular and direct flow of information between the Member of the Commission and the chair of the relevant parliamentary committee.189 Several more specific duties to “provide full information and documentation” follow.190 The Framework Agreement, however, is not remarkable because of what it stipulates but because of what it does not. What is completely absent from the Agreement is both a genuine procedure of parliamentary requests for sensitive information from the Commission and any substantive duty of the Commission to in fact answer parliamentary questions. According to Section 14 of the Agreement, the EU Parliament can request that the Commission provide any internal document of which Parliament has not been properly informed. But this right only exists where the document in question has already “circulated outside the Institutions,” that is to say, the right is a minimum standard of treatment equal to that extended to member states or to a private corporation. The clause gives telling evidence of the fact that there is no longer anything particular about parliamentary control in an information society. What accounts for the shifting constitutional framework of parliamentary access to information? It is evident that the institutional problem consists, again, in the scarcity of parliamentary resources. Parliamentary time and resources are always scarce, but this is particularly so when it comes to information. It is well known that the sheer amount of information parliaments consider necessary for their day-to-day business requires a very complex infrastructure of research, lobbying, knowledge management, and knowledge distribution191 including well-staffed research services.192 Reaching beyond the scope of European audit courts, the U.S. Government Accountability Office—an agency acting under congressional control—has a similar function, and every Member of Congress may submit to it a request for investigation or a report.193 Under the relevant statute, minorities in both the House and in Congress can require the disclosure of executive-branch documents.194 Against this backdrop, the constitutional obligation to keep parliament informed has a number of obvious advantages. It may be a good way of ensuring that the issues at stake are actually debated in parliament rather than in some closed circle. It may even be instrumental to making parliament better positioned to claim further access to even more information in order to exercise control where members wish to do so. However, executive duties irrefutably are something very different from what parliamentary control is supposed to be under a parliamentary government. Executive duties are unable to guarantee the joint responsibility of the branches for certain far-reaching political decisions, such as the fundamental questions of European integration, as they undermine the idea of a “fusion” between executive and legislative power. As the evidence from Germany and the European Union suggests, the pattern of institutional behavior which executive reporting implies, turns upside down the scheme of parliamentary action and executive reaction implied in the idea of parliamentary control. What becomes apparent here is an idea of parliament as an external controller and auditor of executive power which has stripped off the idea of parliament as a source of its power. It must also be kept in mind that the obligation to provide parliament with information is obviously something rather comfortable from the point of view of the executive. It is a usual feature of government strategies to keep certain things concealed from the parliament’s and the public’s concern.195 Governments can therefore have an institutional interest in keeping a high flow of information concerning uncontroversial policy issues. The results of empirical studies on informal control strategies of European parliaments come therefore as no surprise. Domestic lawmakers show dissatisfaction with the amount of highly specialized expertise they obtain. The kind of information they truly seek is politically relevant information, that is, information assessed by responsible politicians or senior civil servants.196 Not only will the bureaucracy always outclass parliamentary opposition in terms of the amount, scope, and quality of information, but this general superiority is heightened when parliament is deprived of an active part in the control game. Whoever dominates the flow of information also controls both the perception of certain topics and the agenda. The flow of information channeled and controlled by the government will sooner or later result in a parliamentary habit of passiveness. Moreover, if the claim for well-informed domestic parliaments taking up their responsibility for the politics of an unbound executive is meant to be more than a trite appeal to the parliamentary sense of duty, it bears a number of unresolved conceptual problems. First, its underlying assumption implicitly transforms controlling functions of the opposition into majority powers. Only the governing parliamentary majority can claim the legitimate exercise of a compensational control through knowledge and information because it otherwise would not pass as a substitute for effective powers of the same majority. Acting under the duty to appraise the continuous flow of executive information, the parliamentary majority acts both as the party in government and as a limited opposition. It is not per se wrong to vest parliamentary majorities with the new responsibilities of control and partial oversight. But it is an inevitable consequence of a constitutional dualism between parliament and the executive which in principle is foreign to the nature of parliamentary government. IV. The Changing Normative Framework How far is parliamentary law able to react to these challenges? Does it react at all? Both major transformations—the marginalization of the parliament’s investigative function as well as the rise of executive reporting—require procedural answers. This Part presents an analysis of how parliamentary law frames questioning. A comparative account will prove that, in fact, a plethora of institutional and procedural patterns contribute to the efficiency and strength of parliamentary control.197 There are many legal parameters that need to be taken into account. Compliance with parliamentary requests for information, for instance, may take on different forms. It can mean the duty of a member of the cabinet to give a “statement” before parliament or to provide a written answer to a written question (see Part IV.C). But the required action can also be to table requested documents.198 Also, the duty to properly inform parliament can be conceived as a mere reflex of a power of the legislature to demand information, but it can also exist as an “objective” legal obligation, which makes a great practical and procedural difference, as we have seen.199 Furthermore, the position of the executive within the parliamentary procedure following the question can vary.200 Procedural law can give every single member of parliament the right to question the government, but it may also reserve this power to a minimum number or to a parliamentary group (see Part IV.A); it may demand, allow, restrict, or even preclude debate, motions, and voting concerning the given answer. The addressees can vary, too. It matters a great deal whether it is a single responsible minister who must answer the question or whether it is the government as such (see Part IV.B). A. Entitlements: Membership, Majority Rule, and Minority Rights The right to demand information can be assigned to very different holders, depending on the general character of the relations between parliament and the executive. The right can belong to parliament as a body and be exercised by the majority; it can be the right of a minority, of a select committee deciding either by the majority or minority on the exercise of this right, or the right of a single member. It is today widely accepted that parliamentary minorities must have a right to demand information.201 Majorities supporting the government tend to be reluctant to scrutinize “their” government, whereas oversight is an essential element of a parliamentary opposition.202 But majorities, too, are essential to a parliamentarian notion of control as they exercise a more subtle and informal controlling influence over the government.203 The key constitutional question is whether the right to address the executive with requests for information is inherent in the legal status of the single elected representative. If so, limitations arising from rules of procedure—such as a quorum or a maximum number of questions each member may ask in a month or committee membership—need constitutional justification.204 Conversely, if the right to information is construed as a right of the legislative body only, whose exercise the assembly may grant to its members, the procedural autonomy of parliament to encroach upon the questioning by individual members is considerably higher. There is no straightforward answer to this question. It is widely accepted that the right to speak out in parliament is part of the fundamental legal status of any member of parliament.205 But it is not self-evident that the same is true of demands for information, as they extend beyond the organizational sphere of the legislature. If parliament is conceived as a constitutional body with a set of clearly defined powers, these powers are usually assigned to the body as a whole, such as, for instance, the power to demand the presence of a minister by majority vote under Article 43(1) of the Grundgesetz.206 Against the backdrop of the parliamentary theory of control developed above,207 however, the constitutional relations between the legislature and the executive must allow for at least some sort of “fusion of the executive and legislative functions,”208 and hence cannot be conceived in terms of coordination between two self-contained organizations with separate legal realms. The right to question the government cannot be the right of a collective entity such as the parliament, as a whole, facing cabinet. It has to be regarded as a right of individual members of parliament, a view which evidently governs the British parliamentary procedure. In the same vein, Article 48(6) of the French Constitution speaks of “questions des membres du Parlement.”209 Articles 133 and 135 of the Rules of Procedure of the National Assembly provide that both oral and written questions have to be filed by individual members.210 Most other bodies of parliamentary law are more ambiguous on this point. With respect to the European Parliament, Article 230(2) TFEU states that the right to question is a right belonging both to the assembly as a whole and its individual members. The Rules of Procedure, however, restrict oral questions to political groups of at least forty members of the European Parliament or committees.211 It is within the discretion of the Conference of the Presidents212 to decide which questions are placed on the agenda and in what order.213 No such restriction exists when it comes to written questions, which can be filed by any member. In contrast, German doctrine, and in particular the German Federal Constitutional Court, have considerably changed their view on this point over time. The Court had held for a long time that the duty to answer parliamentary questions follows from the power of parliament “questions and interpellations which imposes upon the members of the government the constitutional duty to justify themselves and to provide the members of parliament with information.”214 In a view that echoes constitutional “dualism” and a collectivist idea of parliamentary politics, the single member had only de facto benefits from information but no constitutional right to request it. Rather, the power to claim information was based on the right to interpellation and was assigned to parliament as a whole, thus giving the latter full powers to determine how this right could be exercised by groups and members.215 This view was first modified in a landmark case decided in 1986 in which the Court struck down procedural rules that effectively excluded the oppositional Green Party from the right to control the budget of intelligence agencies. Perhaps simply encouraged by the fact that for the first time an individual member invoked such a right, the court ruled that “from the status guaranteed in Article 38(1) Grundgesetz [i.e., the guarantee of the free mandate] a right of each member arises, that from him be not withheld the information which allows for an informed assessment of the budget.”216 No reference was made in this context to the idea of ministerial responsibility as expressed in Article 43 GG. This step was decisive, not only because it allowed the Court to scrutinize parliamentary rules of procedure restricting that power of information, but also because it signaled the formation of a more liberal and more parliamentary conception of parliamentary law and the whole system of government.217 The next step was taken in a 2009 ruling concerning the refusal of the federal government to answer certain questions relating to the surveillance of members of parliament by the domestic secret service. In a series of decisions rendered since then, the Court has expressed the opinion that the parliament’s right to obtain information is a right of the whole parliament “in which the single members and the groups participate in accordance with the rules of procedure.”218 The Court still makes no reference to the majority powers of Article 43 of the Grundgesetz, but regards the right to information as a necessary requirement of the principle of democracy as provided in Article 20(2) GG, which means that not even constitutional amendments can abridge it. It is unclear whether this second turn is a partial revocation of the idea of individual members’ rights. The Court keeps asserting this individual right by references to Article 38(1) GG. But a different rationale is plausible, too. As the Court classifies parliamentary information as an immediate demand of democracy, this view secures the Court’s own unlimited review of the balance of power and information between the government and the opposition, parliament and the executive. Under this normative framework all actors can defend their right to information before the constitutional court: members, groups, and eventually also parliament itself when it comes to its being adequately informed about European and international affairs. B. Addressees: Detaching Information from Ministerial Responsibility To whom can requests for information be addressed? The obligation to answer is even more decisive than the right to ask, since it assigns the political responsibility for any information given or withheld to a person in office. In other words, the political effect of parliamentary questioning depends on the allocation of the duty to answer.219 As a general rule, it can be observed that the more the structure of the executive follows the parliamentary type, the more the duty to answer questions is attributed to the office of the responsible ministers.220 The more the executive is independent from the legislature, the more the respective duty lies with the head of cabinet or the executive branch as such (“the government”). The parliamentary model is most purely represented by the Westminster system, in which parliamentary questions are addressed immediately to the respective member of cabinet. Ministers may of course forward questions to another minister if the matter falls within the purview of another department.221 But neither the cabinet nor the prime minister possesses the discretionary power to decide who answers questions, whether written or oral, on behalf of the government.222 Other parliamentary systems show elements of greater executive independence. The French Constitution of 1958 stands in clear contrast to the U.K. system. Breaking with the parliamentary tradition of the Fourth Republic, it eliminated interpellations, and created a weaker instrument of questions without debate.223 In general, the 1958 Constitution gave comparatively poor control rights to the Assemblée Nationale. In what is now Article 48(6), it provided that one session per week should be reserved for questions by members and answers “by the government.”224 Hence, choosing the member of the government to answer the questions is seen as the prime minister’s exclusive responsibility. It soon became common practice that ministers could be represented by a colleague or a deputy who was not politically responsible for the issue.225 The procedure soon developed into a systematic replacement of the questioned ministers by their colleagues.226 However, when the Assemblée Nationale changed its rules of procedure on this point in the early 1960s to contain the sharp tendency towards executive power,227 the Conseil constitutionnel struck down the amendment and held that it was a constitutional power assigned to the government to send to parliament a member of cabinet of the prime minister’s choosing which parliament had no right to abridge.228 After several reforms—a Westminster-style “question hour” was introduced by Giscard d’Estaing in 1974229—both the Constitution and the Rules of Procedure are still inconclusive on this point. In 2008, a constitutional amendment introduced provisions which guarantee more question time to members of opposition groups and demand monthly weeklong sessions dedicated “by priority” to the control of the government and the evaluation of public policies.230 The situation is similar under EU law, since the Commission is only partially responsible to Parliament. Under Article 230(2) TFEU, it is the Commission as a body rather than the individual commissioner who answers questions. Unlike in national constitutions, the duty to answer questions is not an abstraction of some older personal obligation of the ministers to appear before the parliament.231 EU institutional law has never known interpellation. It therefore seems somehow misleading to conclude from Article 230(2) TFEU that the obligation to answer a question implies a fortiori the duty to appear before the European Parliament.232 Rather, the EP Rules of Procedures (rule 130) are correct in explicitly excluding questions addressed to individual members of the Commission. It is the responsibility of the President of the Commission to refer the question to the respective commissioner who will then deliver the answer “on behalf of the Commission.”233 German constitutional practice is ambivalent, an ambivalence which, however, is deeply rooted in the Constitution itself. Only the Chancellor is elected by parliament and explicitly needs continuous parliamentary confidence to stay in office. The ministers are appointed by the Chancellor and do not necessarily have to be members of parliament (in most cases they are, however). Members of the cabinet, with the exception of the Chancellor, are not subject to a vote of no confidence in parliament. They are, however, responsible to parliament, yet in a subtle, indirect way: The chancellor will in most cases ask a minister to resign if he or she has lost the majority’s confidence. The constitution, however, allows the chancellor to deploy all his political authority to “save” a minister by forcing the majority to either overthrow the whole government or come to terms with the minister. The most prominent expression of this full but not fully enforceable responsibility is the power of the Bundestag and its committees to require the presence of any member of the federal government (Article 43 GG). Accordingly, the Constitutional Court held in its older jurisprudence that the parliament’s right of interpellation “imposes upon the members of the government the constitutional duty to justify themselves and to provide the members of parliament with the information necessary for the fulfillment of their mandate.”234 Against this backdrop, it would have made a lot of sense to design a procedure of parliamentary questions corresponding to the intrinsically connected issue of ministerial responsibility.235 Yet, German parliamentary law has taken a wholly different approach, ignoring the nature of parliamentary responsibility. The relevant provisions of the rules of procedure predate the Constitution and have heavily influenced constitutional practice and interpretation. As everywhere else, parliamentary procedure knows oral and written questions and establishes two types of the latter. Major questions (Große Anfragen) can be filed by a parliamentary party only and are followed by a mandatory debate on the government’s answer in plenary session. Answers to minor questions (Kleine Anfragen) are published without debate236 and can be submitted by any member of the Bundestag. Both major and minor questions have to be addressed to the federal government. Cabinet rules of procedure provide that questions are allocated to the respective departments by the cabinet office of the chancellery.237 The Chancellor, however, has the right to answer the questions himself if he chooses to do so.238 Ministers, on the other hand, may not answer in their own name any questions assigned to them, even if no other department’s responsibilities are affected. Instead, answers are always issued in the name of the federal government, and answers to major questions need formal approval by a cabinet decision.239 Even in the case of oral questions, which are answered by a minister, the cabinet procedure provides that the cabinet office of the chancellery chooses the department, and even the individual person within the department, to deliver the answers, and informs parliament of its choice.240 The constitutionality of this practice is not without doubt. According to the principle of ministerial autonomy (Article 65 Grundgesetz), both the Chancellor and the cabinet may not infringe the independence of each department unless a conflict between two departments needs to be resolved. As for questions, however, ministerial autonomy is bypassed on a regular basis. Constitutional interpretation has largely endorsed this centralist vision of executive accountability. The Constitutional Court has silently reversed its stance over time and now more or less approves the conception yielded by parliamentary procedure. In a series of more recent decisions on parliamentary access to information, the Court has repeatedly, but without any further explanation, assumed that the duty to inform parliament is a duty of the federal government as such.241 In cases relating to EU matters, this opinion is firmly backed by Article 23(2) of the Grundgesetz, which imposes upon the federal government (rather than the respective minister) the obligation to “keep the Bundestag and the Bundesrat informed, comprehensively and at the earliest possible time.”242 In other areas no similar provision exists. The Federal Constitutional Court recently even ruled that, when a deputy minister answers questions in parliament, he or she is not allowed to refuse to answer because of another department’s autonomy, since the minister represents the government as a whole.243 This doctrinal shift brings no enhancement to the judicial review or any other procedural advantages. Rather, it seems that over time the Court has accepted the institutional realities created by parliamentary self-organization as a constitutional convention. The fragile balance between the parliamentary and “dualist” elements in the German Constitution has tipped, in this matter, in favor of executive independence. Interestingly, it was the general endorsement of a full-blown judicialization of inter-branch conflicts and an ever-stronger prime ministerial center of the government, namely the chancellery, which eventually leveraged this institutional independence against a more personal idea of parliamentary accountability. The doctrinal shift deserves attention because it touches on the direct, non-mediated contact between parliament and the heads of departments as a key institutional feature of parliamentary government. This transformation is not peculiar to German constitutionalism. It follows an intrinsic logic in the current development of parliamentary government. The detachment of the duty to answer parliamentary questions from ministerial responsibility endorses the tendency towards greater executive autonomy. It is part of a much-discussed constitutional development in parliamentary democracies, which consists in a loosening of the institutional ties between cabinet and parliament and in the strengthening of the prime ministerial center of government and which is usually referred to as “presidentialization.”244 Presidentialization is commonly discussed as a phenomenon that concerns the role of the prime minister in the cabinet, of prime ministerial advisors, and plebiscitary elements in policy making. But it also affects the relationships between the executive and parliament. It may be difficult to pinpoint in general terms to what extend the detachment of control from confidence, and the detachment of questioning from ministerial responsibility, are consistent with parliamentary government. Considering that the chancellor or the prime minister of a cabinet government might appoint a minister for the relations with parliament and parliamentary information with the exclusive responsibility to answer to parliamentary questions, would such a position be compatible with the principle of ministerial responsibility—given that there are no other constitutional provisions on the departmental structure of cabinet? Under modern conditions, demands for information by responsible ministers are a key instrument whereby the cabinet can be kept involved in parliamentary politics. They are a key piece of the democratic idea of parliamentary government. C. Oral Questioning and Agency Parliaments around the world have kept an open mind to the fact that information given by the government is never just about the issue itself but about a responsible holder of a public office representing the respective information to the legislature. Otherwise, it would be hard to explain why oral questions are still widely in use, even though they are highly inefficient in terms of plenary time, usually lack the precision and detail of a written statement,245 and are submitted by the head of a department rather than by a senior civil servant in the department with professional competence. To obtain a piece of accurate information on a particular question, written questions are faster, more reliable, and––last but not least––remain publicly available; in one word, they are more rational. Written questions lack the element of drama and public confrontation, and hence are ill suited to symbolize the fusion of legislative and executive powers in the legislature. It is fair to say, however, that the rationalization of the information game between parliament and the executive requires effective tools of oral questioning, because written answers to written questions are given in the shadow of a possible oral question on the same issue leading to a direct public confrontation. Oral and written questions are by no means the beginning and the end of the process of modernization of parliamentary procedure. Rather, they represent two different aspects of accountability in modern democracies.246 Some parliaments, most of all the House of Commons, have kept the practice of very frequent oral questions.247 Many other parliaments, including the European Parliament, the Assemblée Nationale, and the Bundestag, have recently made considerable efforts to strengthen oral questioning as an instrument of parliamentary control. Few constitutions explicitly stipulate a schedule for oral questions as does Article 48(6) of the French Constitution. Unlike for written questions, which can be raised and answered in almost any number, plenary time for oral questions is always scarce, and hence, a series of typical selection problems arise. These include the selection and chronological order of questions on the session agenda, the fair distribution of question times between the government and opposition groups, and the admission of follow-up questions. The most intricate problems when it comes to oral questions, however, concern the allocation of agenda power between the parliamentary leaders and the executive. Where regular question hours exist, their effectiveness as a means of control depends crucially on whether the parliament, rather than the government, may determine the topic of the day and, accordingly, the responsible minister to be questioned. The second crucial theme is agency. Ministers under fire have a vital interest to avoid personal appearance on the floor and will always try to have themselves represented by others, namely colleagues from a different department, deputies, or senior civil servants. But, from a parliamentary point of view, the presence of the questioned minister is the entire sense and purpose of oral questioning.248 And empirical evidence suggests that “open” question times, which allow for spontaneous as well as follow-up questions, significantly reduce the “risk of delegation.”249 As the failure to sufficiently answer questions typically harms the minister’s political reputation, he will hesitate to delegate too much responsibility to his leading civil servants in the first place. Answers to written questions can be delegated, whereas answers to oral questions typically cannot.250 As to oral questions in the European Parliament, article 128(4) of the Rules of Procedure simply states that “one member of the institution concerned shall answer.” In the case of the Commission, questions are addressed to the body rather than to an individual commissioner. In practice, the responsible member of the Commission may be represented by a senior civil servant.251 Things are different for oral “Question Times” with the Commission according to article 129 of the Rules of Procedure, a procedure established in 2011.252 The topic of a question time session is fixed by the Conference of Presidents one month in advance. A maximum of two commissioners are invited to a session, who are expected to attend in person. German parliamentary law knows two major kinds of oral questioning, question hour (Fragestunde)253 and questions to the government (Befragung der Bundesregierung).254 In question hours, single questions to all topics are answered in order of the responsible department. Questions to the government take place every Wednesday at 1 p.m. with a particular topic of the day. The current practice has two major flaws. First, ministers very often send their deputies (Parlamentarische Staatssekretäre) to answer questions in parliament on their behalf, which is frequently criticized as a problematic feature of German constitutional practice.255 German parliamentary practice is an exception to the rule that answering oral questions is non-delegable. This practice is not straightforwardly unconstitutional as no provision explicitly prohibits it, but there is a widespread feeling that it contradicts the very system of government.256 Second, both the topic and the appearing minister in the weekly government question time are chosen by the chief of staff of the chancellery rather than by parliament. Unsurprisingly, controversial matters or ministers under fire are never actually subject to this instrument of parliamentary control. In many cases, the government is represented by a leading civil servant, whereas ministers appear according to their personal schedule only. The Federal Chancellor holds press conferences with open questions on a regular basis but never incurs parliamentary questioning at all. Both the Green opposition party and the President of the Bundestag recently introduced a moderate reform agenda to push for a more lively culture of debate and scrutiny.257 The keystone of these proposals was a parliamentarization of the questioning agenda. Accordingly, the Bundestag should not have the straightforward right to choose the minister to be questioned. Rather, the theme or two alternative themes of the session should be determined by parliament at the beginning of a session week. Choosing a topic from a certain department’s responsibility, however, would have amounted to an indirect right to summon a minister. Even this moderate reform agenda provoked fierce resistance from the federal government, and negotiations failed in February 2015. The issue gained momentum anew after the 2017 elections, when the social democrats, too, called for a reform of question times. According to the coalition agreement, the Bundestag will be given more influence on the topic of questioning. Also, the chancellor will, in the future, appear at least three times a year to be questioned in person.258 However, no amendment to the rules of procedure has been introduced since the government’s taking of office. The issue is still high on the agenda of parliamentary reform in Germany.259 Conclusion: Post-Parliamentarism, Neoparliamentarism, and The Personal Basis of Parliamentary Control The future of parliamentary government depends on the ability of its legislatures to defend their role as the dominant institution of political decision making. Parliament’s lawmaking functions alone do not guarantee this pivotal position.260 Parliaments need effective procedural techniques that preserve the “fusion of executive and legislative powers,” which is at the heart of the institutional idea of parliamentary government. In these efforts, the constitutional design and procedural practice of parliamentary questioning including parliamentary access to executive knowledge plays a hitherto underestimated role. Not merely because parliaments need to be informed to fulfill their responsibilities, but because parliamentary control of the executive is something other than control exercised by courts, the media, or citizens in virtue of their freedom of information. The power of parliamentary control depends on the ability of the legislatures to preserve notions of control and information that are political rather than technical, public rather than private, constitutional rather than administrative, linked to the holder of a public office rather than rational in a bureaucratic sense. It is a notion of parliamentary control that both stems from and heavily relies upon the elements of drama and confrontation entailed by the oral procedure of questioning. This Article has shown that it is this very notion of parliamentary control that is being challenged today. There are different constitutional developments, which among other factors account for the widespread dissatisfaction with the power of parliamentary control. An apolitical notion of control is increasingly detached from the institutional framework of ministerial responsibility. Parliaments are more and more passive objects of executive reporting rather than playing a more active role in challenging governments. These developments correspond to the picture of parliamentary government large parts of the comparative political science literature have been drawing recently. “Post-parliamentarism” or “neo-parliamentarism” are descriptions of a political realm less dystopian than a sheer “post-democracy,”261 yet acknowledging that there is in fact a massive crisis of parliamentary representation, where legislatures are left far behind by an overwhelming executive dominance. And aren’t the expressively political functions slipping away from parliament anyway? Isn’t there a broad decline of majority rule in a multi-level democracy?262 Perhaps. But if, for that reason, the future of parliament is seen in a more extensive exercise of scrutiny,263 if “control” is esteemed the higher, the more other parliamentary powers are in question, then it needs to be highlighted that a robust constitutional notion of parliamentary control is something more and something other than a generally accepted idea of “transparency.” It presupposes the institutional structure of parliamentary government. Parliamentary constitutions cannot, as a matter of principle, give up the essentially personal and political element of parliamentary control. I acknowledge the excellent research assistance of Sinthuja Shanmugaratnam. Thanks to Christoph Möllers, Christian Neumeier, Matthias Roßbach, Christoph Schönberger, Christian Waldhoff, an anonymous reviewer, and the participants at the Berlin Global Constitutional Law Colloquium for valuable comments and discussions. I am also greatly indebted to Professor Horst Risse (Secretary General of the German Bundestag), Dr. Michael Güntner and Mr. Paul Göttke (administrative director and senior advisor of the Christian Democratic Union (CDU) group in the Bundestag) for long and very insightful discussions on German parliamentary practice, and to Mr. Ramón Jáuregui Atondo (MEP) for many details on recent developments in European parliamentary law. Footnotes 1. European Parliament Press Release IPR05759, All MEPs to Have Access to All Confidential TTIP Documents (Dec. 2, 2015), http://www.europarl.europa.eu/news/en/press-room/20151202IPR05759/all-meps-to-have-access-to-all-confidential-ttip-documents. 2. European Commission Press Release IP/14/2131, Opening the Windows: Commission Commits to Enhanced Transparency (Nov. 24, 2014), http://europa.eu/rapid/press-release_IP-14-2131_en.htm. 3. It was only when Greenpeace Netherlands published secret minutes of the negotiations that a broad political debate on the key issues took place. See Arthur Neslen, Leaked TTIP Documents Cast Doubt on EU–US Trade Deal, The Guardian (May 1, 2016), https://www.theguardian.com/business/2016/may/01/leaked-ttip-documents-cast-doubt-on-eu-us-trade-deal. 4. Philip Inman, MPs Can View TTIP Files—But Take Only Pencil and Paper with Them, The Guardian (Feb. 18, 2016), https://www.theguardian.com/business/2016/feb/18/mps-can-view-ttip-files-but-take-only-pencil-and-paper-with-them; Michael Bauchmüller, Lesen mit Auflagen, Süddeutsche Zeitung, Jan. 26, 2016, at 16. For the Bundestag, the relevant sessional order is Besucherregeln für die Einsichtnahme in Schriftstücke mit dem Vermerk TTIP RESTREINT UE/EU RESTRICTED [Rules for Viewing Documents Marked TTIP RESTREINT UE/EU RESTRICTED] (n.d.), No. 14029/15, app. III (Ger.). 5. A good indicator is the rising number of questions asked by the legislature. The figures are roughly the same everywhere: see Patrick Nguyen Huu, L’évolution des questions parlementaires depuis 1958, 31 Revue française de sci. politique 172 (1981); Sébastien G. Lazardeux, The French National Assembly’s Oversight of the Executive, 32 W. Eur. Pol. 296 (2009); Sven T. Siefken, Parlamentarische Frageverfahren—Symbolpolitik oder wirksames Kontrollinstrument?, 41 Zeitschrift für Parlamentsfragen [ZParl] 18, 22–27 (2010); Helen Irwin et al., Evolving Rules, inParliamentary Questions 27, 63–64 (Mark Franklin & Philip Norton eds., 1993). 6. Max Weber, Parliament and Government in Germany Under a New Political Order (1918), inPolitical Writings 130 (Ronald Speirs trans., Peter Lassman & Ronald Speirs eds., 1994). 7. Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010). 8. Transparency in International Law (Andrea Bianchi & Anne Peters eds., 2013). For a skeptical account, see Mark Fenster, The Opacity of Transparency, 91 Iowa L. Rev. 885, 936–49 (2006); Kristin M. Lord, The Perils and Promise of Global Transparency: Why the Information Revolution May Not Lead to Security, Democracy, or Peace (2006). 9. Matthew V. Flinders, Defending Politics: Why Democracy Matters in the Twenty-First Century 26 (2012). 10. Deirdre Curtin, Challenging Executive Dominance in European Democracy, 77 Mod. L. Rev. 1, 3 (2014). 11. On the lack of theory, see Rahul Sagar, On Combating the Abuse of State Secrecy, 15 J. Pol. Phil. 404, 405 (2007). 12. Wolfgang C. Müller & Ulrich Sieberer, Procedure and Rules in Legislatures, inThe Oxford Handbook of Legislative Studies 311, 323 (Shane Martin, Thomas Saalfeld & Kaare Strøm eds., 2014) (mourning a “nascent state of research on parliamentary questions”). See similarly Christoph Schönberger, Le contrôle pralementaire de l’administration en Allemagne, inLe contrôle parlementaire de l’administration 107 (Bertrand Seiller ed., 2010). 13. Shane Martin, Parliamentary Questions, the Behaviour of Legislators, and the Function of Legislatures, 17 J. Legis. Stud. 259 (2011). 14. Thomas Beukers, The Barroso Drama Enhancing Parliamentary Control over the European Commission and the Member States, 2 Eur. Const. L. Rev. 21, 24–26 (2006); Philipp Dann, Parlamente im Exekutivföderalismus: Eine Studie zum Verhältnis von föderaler Ordnung und parlamentarischer Demokratie in der Europäischen Union 333–34 (2004). A slightly more “parliamentary” reading of the EU is proposed by David Judge & David Earnshaw, The European Parliament 17–25, 284–85 (2d ed. 2008). 15. June 7, 2016, 2016 O.J. (C 202) 47 [hereinafter TFEU]. See Sven-Oliver Proksch & Jonathan B. Slapin, Parliamentary Questions and Oversight in the European Union, 50 Eur. J. Pol. Res. 53, 55–56 (2010); Richard Corbett, Francis Jacobs & Michael Shackleton, The European Parliament 245–46 (8th ed. 2011); Jelena von Achenbach, Demokratische Gesetzgebung in der Europäischen Union: Theorie und Praxis der dualen Legitimationsstruktur europäischer Hoheitsgewalt 41–43 (2014). 16. Christoph Möllers, The Three Branches: A Comparative Model of Separation of Powers 181–82, 189 (2013); Martin Westlake, The European Commission and the European Parliament, inThe European Commission 263, 267–68 (David Spence & Geoffrey Edwards eds., 2008); Judge & Earnshaw, supra note 14, at 217; L.F.M. Verhey, Fostering Executive Accountability in the EU, inEuropean Constitutionalism Beyond Lisbon 239, 243–45, 251–53 (Jan Wouters, Luc Verhey & Philipp Kiiver eds., 2009). 17. The best comprehensive account is Armel Le Divellec, Le gouvernement parlementaire en Allemagne: Contribution à une théorie générale (2004). 18. The seminal study is Ernst-Wolfgang Böckenförde, Die Organisationsgewalt im Bereich der Regierung: Eine Untersuchung zum Staatsrecht der Bundesrepublik Deutschland 145–47 (2d ed. 1998) (1964). 19. Florian Meinel, Selbstorganisation des parlamentarischen Regierungssystems: Vergleichende Studien zu einem Verfassungsproblem der Bundesrepublik Deutschland ch. 5 (forthcoming 2018). 20. Christoph Möllers, Scope and Legitimacy of Judicial Review in German Constitutional Law, inDebates in German Public Law 3 (Hermann Pünder & Christian Waldhoff eds., 2014). 21. Christina Fasone & Nicola Lupo, Introduction to Interparliamentary Cooperation in the Composite European Constitution 1, 5–10 (Nicola Lupo & Christina Fasone eds., 2016). 22. Christian B. Jensen, Sven-Oliver Proksch & Jonathan B. Slapin, Parliamentary Questions, Oversight, and National Opposition Status in the European Parliament, 38 Legis. Stud. Q. 259 (2013); Judge & Earnshaw, supra note 14, at 221. 23. Hansard Soc’y Comm’n on Parliamentary Scrutiny, The Challenge for Parliament: Making Government Accountable 90–106 (2001); Aurélie Duffy-Meunier, Le contrôle pralementaire de l’administration au Royaume-Uni, inLe contrôle parlementaire de l’administration, supra note 12, at 85. 24. Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1050–53 (2004); Aidan Wills et al., Parliamentary Oversight of Security and Intelligence Agencies in the European Union (2011); Olivier Rozenberg et al., Not Only a Battleground—Parliamentary Oral Questions Concerning Defence Policies in Four Western Democracies, 17 J. Legis. Stud. 340 (2011). 25. Deirdre Curtin, Overseeing Secrets in the EU, 52 J. Common Mkt. Stud. 684, 688 (2014). 26. Heidi Kitrosser, Congressional Oversight of National Security Agencies, 29 Cardozo L. Rev. 1049, 1050, 1053 (2008); Mark J. Oleszek & Walter J. Oleszek, Institutional Challenges Confronting Congress After 9/11, inCongress and the Politics of National Security 45, 64 (David P. Auerswald & Colton C. Campbell eds., 2012); Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability 201–02 (3d ed. 2010). 27. Wolfgang Krieger, Oversight of Intelligence, inNational Intelligence Systems 215 (Gregory F. Treverton & Wilhelm Agrell eds., 2009); Gerrit Hornung, Parlamentarisches Kontrollgremium und G 10-Kommission, inParlamentsrecht 928 (Martin Morlok, Utz Schliesky & Dieter Wiefelspütz eds., 2016). 28. Curtin, supra note 25, at 694. 29. Sagar, supra note 11, at 413. 30. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 21, 2014, 137 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 185 (261–63, ¶¶ 194–96), 2014 (Parliamentary Information on Arms Exports). 31. National Parliaments and European Democracy (Olaf Tans, Carla Zoethout & Jit Peters eds., 2007); European Constitutionalism Beyond Lisbon,supra note 16. 32. Philipp Kiiver, European Treaty Reform and the National Parliaments, inEuropean Constitutionalism Beyond Lisbon, supra note 16, at 131, 131–32. 33. Curtin, supra note 10, at 16–17; The Europeanisation of Parliamentary Democracy (Katrin Auel & Arthur Benz eds., 2006); Philipp Kiiver, The Composite Case for National Parliaments in the European Union, 2 Eur. Const. L. Rev. 227 (2006); Jan Karlas, National Parliamentary Control of EU Affairs, 35 W. Eur. Pol. 1095, 1097–98 (2012); Philipp Kiiver, The National Parliaments in the European Union: A Critical View on EU Constitution-Building (2006); Philipp Kiiver, The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality (2012). 34. Martin, supra note 13, at 263. There are, however, considerable differences in this respect: see Carl-Christoph Schweitzer, Effektive Wahrnehmung von parlamentarischen Kontrollrechten im Vergleich, inBritish and German Parliamentarism 169 (Adolf Birke & Kurt Kluxen eds., 1985). 35. U.S. Const. art. 2, § 3. 36. Loi constitutionnelle du 16 juillet 1875, art. 8(1), cited inConstitutions of the World 1850 to the Present, Part 1, at 317 (Horst Dippel ed., 2003) (“Le Président de la République négocie et ratifie les traités. Il en donne connaissance aux Chambres aussitôt que l’intérêt et la sûreté de l’Etat le permettent.”). 37. 1958 Const. art. 48(6). 38. Grundgesetz [GG] [Basic Law] art. 43(1). 39. Hironori Yamamoto, Les outils du contrôle parlementaire: Étude comparative portant sur 88 parlements nationaux (2007). 40. For a very good summary, see Manuel Sánchez de Dios & Matti Wiberg, Questioning in European Parliaments, 17 J. Legis. Stud. 354, 356 (2011). 41. Assemblée Nationale, Règlement de l’Assemblée Nationale art. 135 (Nov. 2014), http://www2.assemblee-nationale.fr/decouvrir-l-assemblee/textes-de-reference/reglement-de-l-assemblee-nationale [hereinafter Règlement de l’Assemblée Nationale]; Eur. Parliament, Rules of Procedure r. 130(5) (Jan. 2017), http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=TOC [hereinafter Rules of Procedure of the European Parliament]. 42. Corbett, Jacobs & Shackleton, supra note 15, at 315; Joël Rideau, Droit institutionnel de l’Union et des communautés européennes: Manuel 763 (5th ed. 2006); Judge & Earnshaw, supra note 14, at 218; Das Recht der Europäischen Union art. 14 (EUV) ¶ 35 (Eberhard Grabitz, Meinhard Hilf & Martin Nettesheim eds., 2014) (Sven Hölscheidt). 43. Corbett, Jacobs & Shackleton, supra note 15, at 315–18; Rules of Procedure of the European Parliament,supra note 41, r. 120(5). 44. Geschäftsordnung des Deutschen Bundestages [BTGO] [Rules of Procedure of the German Bundestag] June 25, 1980, Bundesgesetzblatt, Teil I [BGBl I] at 1237, §§ 100–106, establish the following types: The “major question” (Große Anfrage) is a written question, the answer to which is followed by a parliamentary debate. Answers to “minor questions” (Kleine Anfrage) are published without any debate. Answers to “single questions” (Einzelfragen) are given in session by a senior civil servant. 45. Ulrich Sieberer, Wolfgang C. Müller & Maiko Isabelle Heller, Reforming the Rules of the Parliamentary Game, 34 W. Eur. Pol. 948, 950–52 (2011). 46. Id. at 950. 47. Rozell, supra note 26, at 13–16; Curtin, supra note 25, at 686–88; Curtin, supra note 10, at 23–24; Möllers, supra note 16, at 119; Christoph Möllers, Dogmatik der grundgesetzlichen Gewaltengliederung, 132 Archiv des öffentlichen Rechts 493, 499–500 (2007); Pascale Cancik, Der “Kernbereich exekutiver Eigenverantwortung”—zur Relativität eines suggestiven Topos, 45 ZParl 885 (2014). 48. On the following, see Colin Turpin & Adam Tomkins, British Government and the Constitution: Text and Materials 612–13 (7th ed. 2012); Ralph Alexander Lorz & Maike Richterich, Regierung im Parlament, inParlamentsrecht, supra note 27, at 1063, 1100–04. An older comparative account is Gaston Bruyneel, Interpellations, Questions and Analogous Procedures for the Control of Government Actions and Challenging the Responsibility of Government, 28 Const. & Parliamentary Info. 66, 81–82 (1978). 49. See the comparative account of Matti Wiberg, Parliamentary Questioning, inParliament and Majority Rule in Western Europe 204 (Herbert Döring ed., 1995). 50. Carol Harlow, Freedom of Information and Transparency as Administrative and Constitutional Rights, 2 Cambridge Y.B. Eur. Legal Stud. 285, 288–89 (1999). 51. On a general note, see Thomas Pez, Le contrôle parlementaire de l’administration: Les éléments du contrôle, inLe contrôle parlementaire de l’administration,supra note 12, at 35, 50–51; Nada Mourtada-Sabbah, Le privilège de l’exécutif aux États-Unis 197–216 (1999). 52. The leading case in German constitutional law is Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 15, 1984, 67 Entscheidungen des Bundesvergassungsgerichts [BVerfGE] 100 (139), 1984 (Flick Investigation Committee). See Cancik, supra note 47, at 893–97. 53. BVerfG June 17, 2009, 124 BVerfGE 78 (1367), 2009 (Investigation Committee on Black Sites). 54. BVerfG Oct. 13, 2016, 143 BVerfGE 101, 2016 (NSA Selector Lists). 55. Id. ¶¶ 159–80. 56. Sven T. Siefken, Abgeordnete in Aufsichtsgremien von Agenturen. Parlamentarische Kontrolle und die Legitimation der sich wandelnden Verwaltung (German Ass’n of Political Sci. (DVPW) Annual Conference Paper, Duisburg, Sept. 2015) (on file with author). 57. See the evidence presented by Mitchel A. Sollenberger & Mark J. Rozell, The President’s Czars: Undermining Congress and the Constitution 27–52 (2012). 58. 418 U.S. 683 (1974). 59. Id. at 706–07. 60. For a critical account of the judgment, see Akhil Reed Amar, Nixon’s Shadow, 83 Minn. L. Rev. 1405 (1999); Mourtada-Sabbah, supra note 51, at 11–96; Rozell, supra note 26, at 53–54. 61. Case T-105/95, World Wide Fund for Nature U.K. v. Comm’n, 1997 E.C.R. II-313, ¶ 60. 62. Id. ¶¶ 59–60. 63. On this difference, see Möllers, supra note 16, at 121; Roberto Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecution, 87 Iowa L. Rev. 1559, 1577 (2002). 64. See, e.g., the parallel observations made by Louis Fisher, The Law of the Executive Branch: Presidential Power 208 (2014); Cancik, supra note 47, at 902. 65. Consider the evidence given by Josh Chafetz, Congress’s Constitution, 160 U. Pa. L. Rev. 715, 739–40 (2012); Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361, 382–83 (2004). 66. A good account of the factors of executive agenda power is Eduardo Alemán, Legislative Organization and Outcomes, inRoutledge Handbook of Comparative Political Institutions 145, 153–57 (Jennifer Gandhi & Rubén Ruiz-Rufino eds., 2015); The Role of Governments in Legislative Agenda Setting (Bjørn Erik Rasch & George Tsebelis eds., 2011); Gary W. Cox & Mathew D. McCubbins, Legislative Leviathan: Party Government in the House (2d ed. 2007); Gary W. Cox & Mathew D. McCubbins, Managing Plenary Time, inThe Oxford Handbook of the American Congress 451 (Eric Schickler & Frances E. Lee eds., 2011). 67. Turpin & Tomkins, supra note 48, at 612; Peter Cane, Controlling Administrative Power: An Historical Comparison 422 (2016). 68. Cabinet Office, Giving Evidence to Select Committees: Guidance for Civil Servants (Oct. 2014), https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/364600/Osmotherly_Rules_October_2014.pdf. 69. Donald P. Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany 37 (3d ed. 2012). 70. Carol Harlow, Transparency in the European Union, inEuropean Constitutionalism Beyond Lisbon, supra note 16, at 209, 217–23. 71. Fisher, supra note 64, at 208–14; Rozell, supra note 26, at 195–208; Gary J. Schmitt, Executive Privilege, inThe Presidency in the Constitutional Order 154, 176–82 (Joseph M. Bessette & Jeffrey Tulis eds., 1981). 72. Rozell, supra note 26, at 203–08. 73. Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). 74. Rozell, supra note 26, at 201–02; Peter M. Shane & Harold H. Bruff, Separation of Powers Law: Cases and Materials 311 (3d ed. 2011). 75. Joseph E. Stiglitz, On Liberty, the Right to Know, and Public Discourse, inGlobalizing Rights 115, 115–16 (Matthew Gibney ed., 2003). 76. Id. at 115. See also Curtin, supra note 25. A fine survey of the theoretical literature is provided by Sagar, supra note 11, at 405–17; Alasdair Roberts, Blacked out: Government Secrecy in the Information Age (2006); von Achenbach, supra note 15, at 402. 77. See infra Part III.A for a more in-depth discussion. 78. A general summary is provided by Sean Gailmard, Accountability and Principal–Agent Theory, inThe Oxford Handbook of Public Accountability 90 (Mark Bovens, Robert E. Goodin & Thomas Schillemans eds., 2014); Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 Admin. L. Rev. 1 (1994). 79. A representative survey is Delegation and Accountability in Parliamentary Democracies (Kaare Strøm, Wolfgang C. Müller & Torbjörn Bergmann eds., 2003); Thomas Saalfeld, Members of Parliament and Governments in Western Europe, 37 Eur. J. Pol. Res. 353 (2000); Mathew D. McCubbins, Common Agency? Legislatures and Bureaucracies, inThe Oxford Handbook of Legislative Studies, supra note 12, at 567. 80. Wiberg, supra note 49, at 182; Martin, supra note 13, at 265. 81. Kaare Strøm, Parliamentary Democracy and Delegation, inDelegation and Accountability in Parliamentary Democracies, supra note 79, at 55, 61–62; on a comparative note, see Cane, supra note 67, at 420–21. 82. Strøm, supra note 81, at 71–73; McCubbins, supra note 79, at 572–80; Udo Di Fabio, Parlament und Parlamentsrecht, 29 Der Staat 599, 612–13 (1990). 83. Gary J. Miller, The Political Evolution of Principal–Agent Models, 8 Ann. Rev. Pol. Sci. 203, 209–10 (2005); George A. Krause, Legislative Delegation of Authority to Bureaucratic Agencies, inThe Oxford Handbook of American Bureaucracy 521, 523–24 (Robert F. Durant ed., 2010). 84. D. Roderick Kiewiet & Mathew D. McCubbins, The Logic of Delegation: Congressional Parties and the Appropriations Process (1991). For an account of the development of principal–agent theories, see Miller, supra note 83. 85. Proksch & Slapin, supra note 15, at 55. 86. Armel Le Divellec, Des effets du contrôle parlementaire, 134 Pouvoirs 123, 129 (2010). 87. Armel Le Divellec, Cabinet as the Leading Part of Parliament, inConstitutionalism and the Role of Parliaments 97, 119 (Katja S. Ziegler, Denis Baranger & A.W. Bradley eds., 2007) [hereinafter Le Divellec, Cabinet as the Leading Part of Parliament]; Le Divellec, supra note 17, at 224–51; Armel Le Divellec, L’Articulation des pouvoirs dans les démocraties parlementaires européennes, 143 Pouvoirs 123, 134 (2012) [hereinafter Le Divellec, L’Articulation des pouvoirs]; Ulrich Scheuner, Entwicklungslinien des parlamentarischen Regierungssystems (1969), inStaatstheorie und Staatsrecht 317, 319 (Joseph Listl & Wolfgang Rüfner eds., 1978); Klaus Kröger, Die Ministerverantwortlichkeit in der Verfassungsordnung der Bundesrepublik Deutschland 168 (1972); Philip Norton, Questions and the Role of Parliament, inParliamentary Questions,supra note 5, at 194, 197–200; Cane, supra note 67, at 151–53. 88. Walter Bagehot, The English Constitution 12, 36 (London, Chapman & Hall 1867). 89. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution 485–86 (8th ed. 1923). 90. Ivor Jennings, Cabinet Government 472 (3d ed. 1969). 91. Harold J. Laski, Parliamentary Government in England: A Commentary 140–43 (1938). 92. Max Weber, Parlament und Regierung im neugeordneten Deutschland, inZur Politik im Weltkrieg: Schriften und Reden 1914–1918, at 432, 539–41 (Wolfgang J. Mommsen & Gangolf Hübinger eds., 1983). 93. Karl Loewenstein, Political Power and the Governmental Process 195–96 (1957). 94. Wilhelm Hennis, Regieren im modernen Staat 2–5 (1999). 95. For a short reappraisal, see Le Divellec, L’Articulation des pouvoirs, supra note 87, at 131–36; Cane, supra note 67, at 6–8. 96. Sebastian Saiegh, Executive–Legislative Relations, inRoutledge Handbook of Comparative Political Institutions,supra note 66, at 162, 164. 97. This key difference is established by Olaf Tans, Introduction to National Parliaments and the European Union 1, 13 (Olaf Tans, Carla Zoethout & Kit Peters ed., 2007). 98. For an in depth discussion, see infra Part II.B. 99. Möllers, supra note 16, at 121. See similarlyYamamoto, supra note 39, at 48; Deirdre Curtin & H. Meijers, The Principle of Open Government in Schengen and the European Union, 35 Common Mkt. L. Rev. 391, 392 (1995); Harlow, supra note 50, at 291–92. 100. An excellent account is Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 193–35 (2007). 101. (1839) 9 Ad & El 1, 112 Eng. Rep. 1112, 1123. Erskine May, Treatise on the Law, Privilege, Proceedings and Usage of Parliament 203–04 (Malcolm Jack eds., 24th ed. 2011): The power to punish for contempt has been judicially considered to be inherent in each House of Parliament not as a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges) but in virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliament. 102. Iraola, supra note 63, at 1566; David Mongoin, Le contrôle de l’administration par le Congrès des États-Unis, inLe contrôle parlementaire de l’administration,supra note 12, at 115, 141–42; Alan Barth, Government by Investigation 13–14 (1955); Susann Bräcklein: Investigativer Parlamentarismus: Parlamentarische Untersuchungen in der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika 158–85 (2006); Morton Rosenberg, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry 3–6 (2003). 103. Barth, supra note 102, at 13. 104. 354 U.S. 178, 187 (1957). 105. 421 U.S. 491, 505 (1975). Cf. United States Congress, Riddick's Senate Procedure: Precedents and Practices 882 (1992): The authority of Congress and its committees to make investigations and inquiries is to be found in the Constitution in the powers granted to Congress to legislate. The Senate itself could investigate or hear witnesses as it has on rare occasions when witnesses were subpoenaed to appear at the bar of the Senate. Since this procedure is too cumbersome and would be too time consuming for the Senate as a body to perform this activity, it authorizes investigations and inquiries to be done by its committees. A more general perspective was taken in McGrain v. Daugherty, 273 U.S. 135, 175 (1927): A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period, the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus, there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised. 106. Denis Baranger, Executive Power in France, inThe Executive and Public Law 217, 219–21 (Paul Craig & Adam Tomkins eds., 2005). 107. Christoph Schönberger, Das Parlament, inParlamentsrecht, supra note 27, at 61, 101–02. 108. Möllers, supra note 16, at 118–19. 109. On the absence of a clear distinction between both types in the American case, see Paul Charles Light, Government by Investigation: Congress, Presidents, and the Search for Answers, 1945–2012, at 2–3, 16–17 (2014); Mongoin, supra note 102, at 141–47. 110. Christian Teuber, Parlamentarische Informationsrechte: Eine Untersuchung an den Beispielen des Bundestages und des Landtages Nordrhein-Westfalen 60–64 (2007). 111. Chris Thornhill, German Political Philosophy: The Metaphysics of Law 326–28 (2007). 112. Turpin & Tomkins, supra note 48, at 613; Curtin, supra note 25, at 687. An explicit statement in constitutional case law is Bundesverfassungericht [BVerfG] [Federal Constitutional Court] July 1, 2009, 124 Etnscheidungen des Bundescverfassungsgerichts [BVerfGE] 161 (193, ¶ 120), 2010. 113. Following the standard categorization introduced by Dicey, supra note 89, at 480–88. On its limits, see Denis Baranger & Christina Murray, Systems of Government, inRoutledge Handbook of Constitutional Law 73, 76 (Mark Tushnet, Thomas Fleiner & Cheryl Saunders eds., 2013); Parliamentary Versus Presidential Government (Arend Lijphart ed., 1992). 114. Dann, supra note 14, at 331. 115. Anthony W. Bradley & Cesare Pinelli, Parliamentarism, inThe Oxford Handbook of Comparative Constitutional Law 650, 651 (Michel Rosenfeld & András Sajó eds., 2012). 116. Cf. Pez, supra note 51, at 37. 117. On the difference between control by the majority and minority respectively, see Schönberger, supra note 12, at 111. 118. Proksch & Slapin, supra note 15, at 58; Lorz & Richterich, supra note 48, at 1106–08; Susan Rose-Ackerman, Stefanie Egidy & James Fowkes, Due Process of Lawmaking: The United States in Comparative Perspective 19 (2015). 119. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 3, 2016, 142 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 25 (63, ¶ 103), 2016 (Procedural Rights of the Opposition). 120. Christoph Schönberger, Vom Verschwinden der Anwesenheit in der Demokratie, 71 Juristenzeitung 486, 490–94 (2016). 121. Cane, supra note 67, at 147–57; Hellmut Wollmann, Die Stellung der Parlamentsminderheiten in England, der Bundesrepublik Deutschland und Italien 155–61 (1970). 122. See the very early appraisal of this fact in Carl Schmitt, Verfassungslehre 338 (1928). From the more recent literature, see Irwin et al., supra note 5, at 63. For the European Parliament, see Tapio Raunio, Parliamentary Questions in the European Parliament, 2 J. Legis. Stud. 356, 362–63 (1996). 123. This the comparative account given by Tans, supra note 97, at 229–31. Convincing historical evidence is in Thomas Raithel, Das schwierige Spiel des Parlamentarismus: Deutscher Reichstag und französische Chambre des Députés in den Inflationskrisen der 1920er Jahre 113–14 (2005). 124. See infra Part IV.B. 125. See further infra Part IV.C. 126. Le Divellec, L’Articulation des pouvoirs, supra note 87, at 135; Armel Le Divellec, La problématique du contrôle parlementaire de l’administration, inLe contrôle parlementaire de l’administration,supra note 12, at 13. 127. The classic study in English constitutional history is Clayton Roberts, The Growth of Responsible Government in Stuart England (1966). See alsoSebastian Steinbarth, Das Institut der Präsidenten- und Ministeranklage in rechtshistorischer und rechtsvergleichender Perspektive: Ursprünge, Erscheinungsformen und bleibende Sinnhaftigkeit von Gerichts- und Impeachmentverfahren zur Durchsetzung gubernativer Verantwortlichkeit (2011). 128. Schmitt, supra note 122, at 327. 129. Steinbarth, supra note 127, at 282–93. 130. 4 Léon Duguit, Traité de droit constitutionnel 860 (2d ed. 1924) (“La théorie des crimes ministériels pouvait à la rigueur se defender lorsque l’on confondait encore la responsabilité politique et la responsabilité pénale, ou dans un pays comme les États-Unis d’Amérique où la responsabilité mise en œuvre par la procédure de l’impeachment est à la fois pénale et politique.”). 131. 1 Ernst Rudolf Huber, Deutsche Verfassungsgeschichte seit 1789, at 622–23 (2d ed. 1967). 132. Le Divellec, supra note 17, at 425–26. 133. Steinbarth, supra note 127, at 255–56. 134. U.S. Const. art. I; Iraola, supra note 63, at 1567; Rosenberg, supra note 102, at 7–9, 17–19; Mongoin, supra note 102, at 145–46; Rozell, supra note 26, at 8–19. “Because the subpoena power is regarded as inherent in Congress’ Article I power, it does not require enactment of a statute.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975). 135. United States v. Bryan, 339 U.S. 323, 331 (1950). 136. Iraola, supra note 63, at 1566–68; Walter J. Oleszek, Congressional Procedures and the Policy Process 385–87 (10th ed. 2016). 137. Yamamoto, supra note 39, at 44. 138. Élisabeth Vallet, Les commissions d’enquête parlementaires sous la Cinquième République, 54 Revue française de droit constitutionnel 249, 268–72 (2003); Le Divellec, supra note 126, at 14. 139. Decision 95/167/EC of the European Parliament, the Council, and the Commission of 19 April 1995 on the Detailed Provisions Governing the Exercise of the European Parliament’s Right of Inquiry (Euratom), 1995 O.J. (L 113) 2 (now annex VIII of the Rules of Procedure of the European Parliament,supra note 41). SeeNicolas Clinchamps, Parlement européen et droit parlementaire: Essai sur la naissance du droit parlementaire de l’Union européenne 255–59 (2006). 140. Proposal Adopted by the European Parliament on May 23, 2012 for a Regulation of the European Parliament on the Detailed Provisions Governing the Exercise of the European Parliament’s Right of Inquiry, 2013 O.J. (C 264 E) 7. 141. This point is rarely made explicitly. See, however, Duffy-Meunier, supra note 23, at 86. 142. Cane, supra note 67, at 422–23. See further infra Part IV.B. 143. Matthias Roßbach, Der Auslandszeuge im parlamentarischen Untersuchun gsausschuss, 69 Juristenzeitung 975 (2014). 144. Terence Daintith & Alan Page, The Executive in the Constitution: Structure, Autonomy, and Internal Control 170–71, 383–98 (1999); Alan Page, Controlling Government from Within, 13 Pub. Pol’y & Admin. 85 (1998); Le Divellec, supra note 126, at 6; Cane, supra note 67, at 502–06. 145. Posner & Vermeule, supra note 7. 146. Colin Crouch, Post-Democracy (2004). 147. Svein S. Andersen & Tom R. Burns, The European Union and the Erosion of Parliamentary Democracy, inThe European Union: How Democratic Is It? 227 (Svein S. Andersen & K.A. Eliassen eds., 1996). 148. Stockdale v. Hansard (1839) 9 Ad & El 1, 112 Eng. Rep. 1112, 1123. 149. John Stuart Mills, Considerations on Representative Government 104 (London, Parker & Bourn 1861). 150. Seymour Scher, Conditions for Legislative Control, 25 J. Pol. 526, 526 (1963). 151. Sagar, supra note 11, at 422. 152. Michel-Pierre Prat & Cyril Janvier, La cour des comptes, auxiliaire de la démocratie, 134 Pouvoirs 97 (2010); Bradley & Pinelli, supra note 115, at 667. 153. Le Divellec, supra note 86, at 137; Le Divellec, supra note 126, at 6. 154. Harlow, supra note 50, at 285; Cane, supra note 67, at 415–18, 425–36. 155. Fenster, supra note 8, at 895–902; Harlow, supra note 50, at 286–87. 156. In this prevailing sense, the idea of “transparency” is the expression of a constitutional mindset which pompously endorses large-scale ideological principles but which is becoming increasingly indifferent towards the good, reasonable, and hence transparent design of political institutions. 157. Harlow, supra note 50, at 285–302; Harlow, supra note 70, at 216. 158. The observations made by Harlow, supra note 50, at 293, may be outdated in the regulatory detail but should still be accurate on the main aspects. 159. Florian Meinel, Die Legalisierung der Legitimation, 784 Merkur: Deutsche Zeitschrift für Europäisches Denken 767, 777–78 (2014). 160. Hansard Soc’y Comm’n on Parliamentary Scrutiny, supra note 23, at 89. 161. Siefken, supra note 5, at 19; Klaus von Beyme, Die parlamentarische Demokratie: Entstehung und Funktionsweise 1789–1999, at 218 (4th ed. 2014). 162. This is the unanimous view expressed in all jurisdictions: see, e.g., Iraola, supra note 63, at 1564. In the United States, too, there is growing disagreement over congressional oversight and the scope of executive privilege; see the comprehensive account in Rozell, supra note 26, at 148–94; Oleszek, supra note 127, at 425–26. 163. Le Divellec, supra note 86, at 136; Verhey, supra note 16, at 256. 164. Yamamoto, supra note 39, at 48. 165. 18 U.S.C. § 2519(3) (2017). 166. For a full account of the relevant provisions, see Mattias Wendel & Franz C. Mayer, Die verfassungsrechtlichen Grundlagen des Europarechts, inEuropäisches Organisations- und Verfassungsrecht 163, 210 (Armin Hatje & Peter-Christian Müller-Graff eds., 2014). 167. Grundgesetz [GG] [Basic Law] art. 23(2), translation athttps://www.gesetze-im-internet.de/englisch_gg/index.html (“Die Bundesregierung hat den Bundestag und den Bundesrat umfassend und zum frühestmöglichen Zeitpunkt zu unterrichten.”). 168. Grundgesetz art. 23 ¶ 95 (Horst Dreier ed., 1998) (Ingolf Pernice); Dann, supra note 14, at 192–98. 169. Gesetz über die Zusammenarbeit von Bundesregierung und Deutschem Bundestag in Angelegenheiten der Europäischen Union [Act on Cooperation Between the Federal Government and the German Bundestag in Matters Concerning the European Union], July 4, 2013, Bundesgesetzblatt, Teil I [BGBl I] at 2170. For a brief summary, see Curtin, supra note 10, at 26–28. 170. For a recent account, see Ulrich Hufeld, Parlamentarisierung durch Verfassungsrechtsprechung—das Bundesverfassungsgericht als Vormund des Bundestages oder als Wächter parlamentarischer Rechte?, inParlamentarisierung und Entparlamentarisierung von Verfassungssystemen 163 (Peter Brandt ed., 2016). 171. Justin Collings, Democracy’s Guardians: A History of the German Federal Constitutional Court 1951–2001, at 280 (2015). 172. Tans, supra note 97, at 232. 173. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Sept. 12, 2012, 132 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 195 (241–42, ¶ 111), 2013 (Ratification of the European Stability Mechanism Treaty) (translated by author). 174. BVerfG Mar. 18, 2014, 135 BVerfGE 317 (402–03, ¶ 166), 2015 (European Stability Mechanism Treaty) (translated by author). 175. Id. 176. See in depthRose-Ackerman, Egidy & Fowkes,supra note 118, at 170–86. 177. Robert Schütze, European Constitutional Law 179–81 (2012); Damian Chalmers, Gareth Davies & Giorgio Monti, European Union Law: Text and Materials 127–34 (3d ed. 2014); Vaughne Miller & Richard Ware, Keeping National Parliaments Informed, 2 J. Legis. Stud. 184 (1996); Ariella Huff & Julie Smith, Parliamentary Scrutiny of Europe, inMeasured or Makeshift? Parliamentary Scrutiny of the European Union 51 (Hansard Soc’y ed., 2013). 178. Sylvie Goulard, Von Informations- zu Entscheidungsnetzwerken, inModelle des Parlamentarismus im 21: Jahrhundert 343, 343–48 (Claudio Franzius, Franz C. Mayer & Jürgen Neyer eds., 2015); Franz C. Mayer, Die Europäisierung nationaler Parlamente, inModelle des Parlamentarismus im 21: Jahrhundert 83 (Claudio Franzius, Franz C. Mayer & Jürgen Neyer eds., 2015); National Parliaments on Their Ways to Europe (Andreas Maurer & Wolfgang Wessels eds., 2001); The Europeanisation of Parliamentary Democracy, supra note 33. 179. Kiiver, supra note 32, at 134. 180. Corbett, Jacobs & Shackleton, supra note 15, at 318–19; Dann, supra note 14, at 338–39. 181. Fasone & Lupo, supra note 21, at 2. 182. Protocol (No. 1) on the Role of National Parliaments in the European Union recital 1, 2016 O.J. (C 202) 203. See further Kiiver, supra note 32, at 135–42. 183. This is rarely pointed out explicitly; see howeverKoenraad Lenaerts & Piet Van Nuffel, Constitutional Law of the European Union ¶ 11-007 (2006). 184. Protocol (No. 1) on the Role of National Parliaments in the European Union, supra note 182, art. 3(1). 185. See the contributions in National Parliaments and European Democracy, supra note 31; Dann, supra note 14, at 192–93. 186. Aron Buzogány & Sabine Kropp, Sisyphos und der Marmorblock—Parlament und Expertise in Zeiten der Eurokrise, 6 Pol’y Advice & Pol. Consulting 3 (2013). 187. Erskine May, supra note 101, at 703–04. 188. Framework Agreement on Relations Between the European Parliament and the European Commission, 2010 O.J. (L 304) 47, amended by 2018 O.J. (L 45) 46. On the agreement in general, see Corbett, Jacobs & Shackleton, supra note 15, at 313–14; Westlake, supra note 16, at 272–73. 189. Framework Agreement on Relations Between the European Parliament and the European Commission, supra note 188, sec. 12. 190. Id. secs. 15, 17, 19, 20. 191. An excellent recent discussion of the topic is Lee Drutman & Steven Teles, Why Congress Relies on Lobbyists Instead of Thinking for Itself, The Atlantic (Mar. 10, 2015), https://www.theatlantic.com/politics/archive/2015/03/when-congress-cant-think-for-itself-it-turns-to-lobbyists/387295/; Julian Krüper, Das Wissen des Parlaments, inParlamentsrecht, supra note 27, at 1141. 192. Corbett, Jacobs & Shackleton, supra note 15, at 321–22; Dann, supra note 14, at 357–60. 193. Daryl L. Levinson & Richard Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2370–71 (2006). 194. Anne Joseph O’Connell, Auditing Politics or Political Auditing? (2007); Mongoin, supra note 102, at 139–40. 195. Sánchez de Dios & Wiberg, supra note 40, at 358. 196. Sabine Kropp & Aron Buzogány, Europäisierung informaler Regierungskontrolle, 26 Zeitschrift für Politikwissenschaften [J. Pol. Sci.] 215 (2016). 197. A helpful set of criteria is discussed by Wiberg, supra note 49, at 185. See alsoYamamoto, supra note 39, at 52–66. 198. Curtin, supra note 10, at 24. 199. See supra Part III.B. 200. Wollmann, supra note 121, at 157. 201. Michael Koß, The Evolution of Parliamentary Minority Rights in Western Europe (Annual Meeting of the Am. Pol. Sci. Ass’n (APSA) Paper, 2011), http://ssrn.com/abstract=1900860. 202. Le Divellec, supra note 17, at 421–50. 203. Le Divellec, supra note 126, at 14. 204. For a comparative account of the limitations, see Yamamoto, supra note 39, at 58–66. 205. See respectively Chafetz, supra note 65, at 742–53; Pez, supra note 51, at 39; Duffy-Meunier, supra note 23, at 88–89; Erskine May, supra note 101, at 222–23; Peter Badura, Article 38 GG, in 10 Bonner Kommentar zum Grundgesetz ¶ 59 (Wolfgang Kahl, Christian Waldhoff & Christian Walter eds., 2008). 206. The clause reads as follows: “The Bundestag and its committees may require the presence of any member of the Federal Government.” Grundgesetz [GG] [Basic Law] art. 43(1) (Ger.), translation athttps://www.gesetze-im-internet.de/englisch_gg/index.html. 207. See supra Part I.E. 208. SeeWalter,supra note 88, at 12, 36. 209. 1958 Const. art. 48(6). See Sánchez de Dios & Wiberg, supra note 40, at 360–62. 210. See, e.g., Règlement de l’Assemblée Nationale,supra note 41, art. 133(2) (“Chaque semaine, la moitié des questions . . . est posée par des députés membres d’un groupe d’opposition.”). 211. Judge & Earnshaw, supra note 14, at 218. 212. Westlake, supra note 16, at 271. 213. Rules of Procedure of the European Parliament, supra note 41, rs. 128(2), 22(2); Jensen, Proksch & Slapin, supra note 22, at 261. 214. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 25, 1981, 57 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (5), 1982 (NPD) (translated by author). See similarly BVerfG July 18, 1963, 13 BVerfGE 123 (125), 1963; BVerfG July 17, 1984, 67 BVerfGE 100 (129), 1985. 215. 2 Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland 52–53 (1980). 216. BVerfG Jan. 14, 1986, 70 BVerfGE 324, 1986 (Parliamentary Control of Intelligence Budgets) (translated by author). 217. See the appraisal by Collings, supra note 171. 218. BVerfG July 1, 2009, 124 BVerfGE 161 (188), 2009 (Surveillance of MPs); BVerfG June 2, 2015, 139 BVerfGE 194 (¶ 103), 2016 (Parliamentary Questions Concerning Support Operations of the Federal Police) (translated by author). 219. Wiberg, supra note 49, at 185. 220. See the result of the survey done by Bruyneel, supra note 48, at 73, 82–83. It probably is also the explanation of the differences observed by Yamamoto, supra note 39, at 60, who, however, does not break down his evidence. 221. Irwin et al., supra note 5, at 53. 222. Erskine May, supra note 101, at 357–58. 223. Le Divellec, Cabinet as the Leading Part of Parliament, supra note 87, at 118; Jean-Louis Thiébault, France, inDelegation and Accountability in Parliamentary Democracies, supra note 79, at 325, 335; Sánchez de Dios & Wiberg, supra note 40, at 366. 224. Jean Luc Parodi, Les rapports entre le législatif et l’exécutif sous la Cinquième République 1958–1962, at 26–28 (2d ed. 1972). 225. Pierre Avril & Jean Gicquel, Droit parlementaire 300 (4th ed. 2010); Michel Ameller, L’heure des questions au Palais-Bourbon, inMélanges offerts à Georges Burdeau 355, 356–60 (1977). 226. Journal Officiel de la République Française [J.O.] [Official Gazette of France], Dec. 20, 1963, No. 145 A.N. (“[R]emplacement systématique des ministres interrogés.”). Cf. Michel Ameller, Les questions, instrument du contrôle parlementaire 166–67 (1964). 227. J.O., Dec. 20, 1963, No. 145 A.N., pp. 7994–95. 228. Conseil constitutionnel [CC] [Constitutional Court] decision No. 63-25DC, Jan. 21, 1964, Rec. 23; Ameller, supra note 225, at 357–58. 229. Lazardeux, supra note 5, at 297–98; Ameller, supra note 225, at 355–56. 230. Loi constitutionnelle 2008-724 du 23 juillet 2008 de modernisation des institutions de la Ve République [Constitutional Law 2008-724 of July 23, 2008 on the Modernization of the Institutions of the Fifth Republic] art. 48(4), (5), J.O., July 24, 2008, p. 11,890; Avril & Gicquel, supra note 225, at 300–03; Pez, supra note 51, at 35–36. 231. Dann, supra note 14, at 334–36. 232. EUV/AEUV [TEU/TFEU] art. 230 ¶ 6 (2d ed. Rudolf Streinz ed., 2012) (Peter M. Huber). 233. Corbett, supra note 15, at 318. 234. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 25, 1981, 57 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (5), 1982 (NPD). See similarly BVerfG July 18, 1961, 13 BVerfGE 123 (125), 1963. 235. Cf. Alternativkommentar zum Grundgesetz art. 43 ¶¶ 5–6 (Erhard Denninger et al. eds., 2002) (Hans-Peter Schneider). 236. Geschäftsordnung des Deutschen Bundestages [BTGO] [Rules of Procedure of the German Bundestag], June 25, 1980, BGBl I at 1237, §§ 100–101, 104. 237. Gemeinsame Geschäftsordnung der Bundesministerien [GGO] [Common Rules of Procedure of the Federal Ministries], Aug. 30, 2000, Gemeinsames Ministerialblatt [Official Journal of the Federal Ministeries] at 526, § 28(1); Siefken, supra note 5, at 28–30. 238. GGO, § 28(1). 239. Id. § 28(2). 240. Id. § 29(1). 241. BVerfG July 1, 2009, 124 BVerfGE 161 (188), 2010 (Surveillance of MPs); BVerfG Sept. 12, 2012, 132 BVerfGE 195 (242), 2013 (Necessary Information of Parliament in European Affairs). 242. Grundgesetz [GG] [Basic Law] art. 23(2), translation athttps://www.gesetze-im-internet.de/englisch_gg/index.html. 243. BVerfG Oct. 21, 2014, 137 BVerfGE 185 (268, ¶ 212), 2015 (Parliamentary Information on Arms Exports). 244. The Presidentialization of Politics (Thomas Poguntke & Paul Webb eds., 2005). 245. Cane, supra note 67, at 152. 246. Olivier Rozenberg & Shane Martin, Questioning Parliamentary Questions, 17 J. Legis. Stud. 394, 396 (2011). 247. Rob Salmond, Parliamentary Question Times, 20 J. Legis. Stud. 321, 322–23 (2014); Cane, supra note 67, at 152. 248. Ameller, supra note 226, at 166. 249. Rob Salmond, Bureaucrats in the Headlights, 17 J. Legis. Stud. 368 (2011). 250. Rozenberg & Martin, supra note 246, at 397. 251. Dann, supra note 14, at 336–37. 252. Corbett, Jacobs & Shackleton, supra note 15, at 316–17. 253. Geschäftsordnung des Deutschen Bundestages [BTGO] [Rules of Procedure of the German Bundestag], June 25, 1980, BGBl I at 1237, app. 4. 254. Id. app. 7. 255. Lorz & Richterich, supra note 48, at 1089; Wiberg, supra note 49, at 195. 256. Schönberger, supra note 120, at 492–94. 257. See the proposal of the whip of the Green parliamentary group: Britta Hasselmann, Regierungsbefragung und Fragestunde im Deutschen Bundestag (Aug. 27, 2014), https://www.gruene-bundestag.de/fileadmin/media/gruenebundestag_de/fraktion/Fraktion_aktuell/14-08-xx_Regierungsbefragung_Fragestunde.pdf. 258. See the coalition agreement: Ein neuer Aufbruch für Europa. Eine neue Dynamik für Deutschland. Ein neuer Zusammenhalt für unser Land: Koalitionsvertrag zwischen CDU, CSU und SPD, at lines 677–80, 8254–56, https://www.cdu.de/system/tdf/media/dokumente/koalitionsvertrag_2018.pdf?file=1. 259. Schönberger, supra note 120, at 494. 260. Bradley & Pinelli, supra note 115, at 665. 261. Crouch, supra note 146. 262. On this point, see Christoph Möllers, Multi-Level Democracy, 24 Ratio Juris 247, 251–53 (2011). 263. Adam Tomkins, What Is Parliament For?, inPublic Law in a Multi-Layered Constitution 53, 74–78 (Nicholas Bamforth & Peter Leyland eds., 2003). © The Author(s) [2018]. 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TI - Confidence and Control in Parliamentary Government: Parliamentary Questioning, Executive Knowledge, and the Transformation of Democratic Accountability
JF - American Journal of Comparative Law
DO - 10.1093/ajcl/avy028
DA - 2018-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/confidence-and-control-in-parliamentary-government-parliamentary-KjOS07Uajp
SP - 317
EP - 367
VL - 66
IS - 2
DP - DeepDyve
ER -