Back in 2000, in the library at UC Berkeley Law, I stumbled on an annotated legislative history of the US Clean Act. It helped explain the background to a major piece of law, where the amendments came from, and what the provisions meant. It added case law that further clarified provisions.
From then on, I’ve always kept an inelegant version of any piece of legislation I’m working in depth on.
It is meant to be a contemporaneous record of what the law meant.
A DIY Guide
It is easy to do. It takes a lot of time.
1. You take the Commission’s proposal and put it into a word document.
2. Turn to the explanatory memorandum, recitals, Impact Assessment, and add in footnotes clarifying the intention of each provision.
3. Update as officials provide clarifications in presentations to MEPs, Member States, events, meetings, and in response to Parliamentary Questions.
4. Provide updates as the proposal text is updated by MEPs and Member States. The 4 column document is helpful.
5. Sometimes MEPs and Member States will help you by informing the public of the origin of the amendment. You can then look for the position paper or amendment and justification submitted. For many years, I’ve been a supporter of Formula 1 type advertising for proposals and amendments. It would be nice if the logo of the organisation who ‘inspired’ the amendment could be superimposed on the politician’s jacket when they were promoting it.
6. You can then add in any exchanges in the EP Committee or plenary meeting, or Council public sessions. The real work of the Council, the Working Groups, is in secret. Keep a video clip of the exchange and any minutes of the meeting.
7. When the law is finalised, you can then hide away and track the origin of the final piece of law into one document.
8. If you are not clear on certain provisions, quickly check in with the small team of people in the Commission, Council and EP who were responsible for drafting and taking the file over the line.
What went in looking like a horse may now look like a camel (attributed to V-P Commissioner Franz Timmermans).
A Guidebook
You’ll hand over a guide to your colleagues and successors, which will explain everything they need to know about the new law. What it means, what happens next, and what needs to be done. It is a valuable tool.
What’s the Upside
If the Commission or others start to backslide on implementing the law that you worked so hard to deliver, you can use the guide. If the issue goes to the European Court of Justice, the Court will draw on the legislative history and intent. There are judgments where the Commission’s actions on changing the legislative intent have been struck down by the ECJ.
Your colleagues working on the law when you have moved on will have an excellent reference document. It will spare the embarrassment of saying something in public about a provision that is either accidentally or deliberately false. The challenge of Brussels is that it is likely that one of the architects of the original law will be in the room when you make the erroneous statement about the legislative intent. They’ll politely call you out. Others will wonder if you can’t be trusted on the basic things, what can you be trusted on?
It is a practical handbook to help you implement the law that the Commission, Council and EP agreed on. It will provide clarity and light.
What’s the Downside
You may realise that all your hard work has delivered zero. Having a record documenting that may be difficult to stomach, personally or at work.
Preparing this record takes focused work. In a workplace of the hive minds and internal meetings, focus is hard.
Knowing the real intent of the outcome may provide you with less wriggle room to push your case after adoption. Backsliding by authorities does happen. I’m sure there is an expert, lobbyist or lawyer who’ll make the case that gravity does not exist (attribution to Nick Naylor, Thank you for Smoking).