Barrett speaks to Maltese Parliament on role of national parliaments in EU
Dr Gavin Barrett recently made a presentation to the Parliament of Malta on the evolving role of national parliaments in the European legal order. He spoke to a special meeting of the Foreign and European Affairs Committee, presided over by the Hon Francis Zammit Dimech MP, the Chairman of the Committee.
Dr Barrett pointed out parliamentary ratification created the European treaties and allowed the accession of new member states, but that the treaties long had little to say about the role of national parliaments in the Union. The early focus of European integration was on specific policy areas of limited national significance, the expansion of the Communities' functions and competences only slowly began to reveal itself as having such significance for national policy and legislation and it was the European Parliament which mainly benefitted from attempts to make the Union more democratic. Treaty revision was traditionally the preserve of national governments and the sui generis nature of the European Union made it unclear how national parliaments could constructively be involved in it. On the other hand, many considered that empowering the European Parliament was not a fully legitimate way of addressing the "democratic deficit" and that, particularly given the increased role of majority voting, strengthening the role of national parliaments counteracts the weakening of the accountability of each government to its own parliament that can be a by-product of European integration.
National parliaments have been given increasing recognitition in revisions and proposed revisions of the treaties from Maastricht to Lisbon. Dr Barrett concentrated on several specific changes. It is now explicitly recognised that the primary role of a national parliament is to hold its national government to account in relation to the way it plays its role under the treaties. Article 12 specifies the particular roles which national parliaments play within the European Union but - it seems - it is merely declaratory (unless the Court of Justice holds otherwise.) Dr Barrett reviewed Protocol No 1 on information for national parliaments and interparliamentary co-operation, analysing, in particular, the wide definition given to "draft legislative acts," the direct communication of information to national parliaments and the eight-week waiting period. The wide right to information extends to the travaux préparatoires. Depending on how effectively national parliaments made use of this, it was quite possible that the right to information would prove to be more significant in practice than the subsidiarity review mechanism. He went on to consider the interparliamentary co-operation envisaged by Protocol No 1, on which little novel or striking was provided.
Dr Barrett then considered Protocol No 2 and the subsidiarity review mechanism, noting the fact that the principle of subsidiarity is confined to areas of shared competence. However, national parliaments are here entitled to amended legislative proposals as well as initial texts. He discussed the practical application the entitlement to issue a reasoned opinion as to whether a proposed measure complies with the principle of proportionality--a right which the Parliament of Malta recently asserted in relation to the proposed Common Consolidated Corporate Tax Base. He outlined the so-called "yellow card" system, which requires merely a review of the legislative proposal being challenged by national parliaments. Since national governments hold office largely as result of the support of their national parliaments, it seems unlikely that a yellow card will often be issued - the CCCTB being one of the closest cases to date. He analysed the "orange card" procedure, applicable to measures to be adopted by co-decision; he was more doubtful as to whether these would ever be issued. He thought that there was little need for a subsidiary review mechanism - a "dignified" rather than an "efficient" part of the European constitution, offering reassurance to citizens. The recent controversy over the CCCTB was clearly mainly about competence and proportionality and not essentially subsidiarity. This suggested that subsidiarity review is likely to broaden into a wider form of political dialogue, as the Commission itself has largely anticipated through the "Barroso initiative." Dr Barrett then discussed the right of a national parliament to bring cases before the Court of Justice, which has been implemented in different ways in different member states.
National parliaments now have an enhanced role in relation to treaty amendment, going further than their traditional role of ratifying amending treaties and Dr Barrett outlined the different aspects of this new role, particularly in relation to the convention process and the simplified revision procedures. He also briefly reviewed national parliaments's roles in the accession process, the process of a state withdrawing from the European Union, the operation of the "flexibility clause," matters in the justice and home affairs area and in adhering to national constitutional requirements in some specific areas.
The duality of national parliaments and the European Parliament reflects the dual legitimacy of the European Union, even if the former have not been given a direct role in the Union's legislative process. The extent to which national parliaments grasp the opportunities presented by Lisbon depend on how well they organise themselves to do so and how far they are willing to engage with European issues even when, as is often the case, the national electorate has little interest in them.
The Hon Michael Frendo, Speaker of the House of Representatives, replied. He emphasised that the Maltese Parliament knew that it needed to empower itself to monitor European proposals more effectively, to make proper use of the Barroso initiative and to hold the government to account for the positions it took in Brussels. The ability of the national parliament to sift and analyse the information it receives is a crucial element in its effectiveness at a European level, even if this process often attracts little interest from the public or the press. Maltese parliamentarians' main priority is to engage more effectively with their own national government over European issues, rather than with the Commission. The Maltese Parliament's intervention on the CCCTB, on the basis of Professor Peter G. Xuereb's expert report - although it did not lead to a "yellow card" review being triggered - did seem likely to modify the Commission's position. The Speaker also considered that it might be time to establish as a matter of European law the duty of a national government to consult its own parliament before adopting a position in the Council of Ministers.
Dr Barrett said that the same issues about mandates to ministers and scrutiny reserves had arisen in Ireland and reforms were likely. He did not think a European system was practical in this respect, given sensitivities about national sovereignty. To some extent, this had to involve governments accepting self-imposed limits on their own freedom of action. The Speaker stressed that prior consultation can often strengthen, rather than weaken, the position of a minister in Brussels. Dr Barrett stressed the importance of the Barroso initiative, given the degree of momentum which formal legislative proposals have usually acquired. National parliamentary representation in Brussels were also a vital element in the effectiveness of the institution.
The Hon Francis Zammit Dimech MP, the Chairman of the Committee pointed out that, in practice, liaison with other national parliaments is crucial during the eight week period and that the Maltese parliament has attempted to make use of this, consistent with timely production of a reasoned opinion. He agreed that capacity building for national parliament was a vital outstanding issue for Malta and many other member states. He wondered if the UK Parliament needs to reconcile its concept of the sovereignty of parliament with what was required to be effective within a European context. Even though governments normally depend on parliamentary majorities, this does not guarantee in many countries that governments and parliaments speak with one voice on every issue. While the Maltese parliament might not, strictly speaking, be in a position to compel its government to bring proceedings before the Court of Justice, it certainly did not lack the means of influencing it to do so. It was encouraging to see that many of the applicant and aspirant states already took account of the important role of national parliaments.
The Hon Francis Agius MP was interested in the practical impact of the Barroso initiative in terms of the nature of the opinions actually issued. There was a gap between the activities of the Commission, the media's level of interest in them and the attitudes of the ordinary citizen. Binding national parliaments more closely into the European process might be counter-productive, undermining their popular legitimacy, rather than enhancing that of the Union's institutions. Could there be effective legal provisions for early flagging of issues of particular national sensitivity?
Dr Barrett acknowledged the Chairman's point about the importance of inter-parliamentary co-operation. This often depended on making accessible language versions available promptly to other national parliaments. Ireland and Malta shared many of the same problems of economies of scale and inter-parliamentary collaboration could address this. The Commission did offer real support to the Barroso initiative but most (75%) of the opinions received came from a relatively small number of parliamentary chambers (12 of 40). While the initiative is gathering pace, there is much scope for many national parliaments to make more use of it. The possibility also remains that, by expansion of its scope, the subsidiarity review mechanism will overtake the Barroso initiative.
Dr Barrett also pointed out that, In many cases (including Ireland), the national parliament was a relatively weak institution to begin with and that it was misleading to claim that European integration had been a significant factor in undermining it further.
The presentation took place on 12 July 2011.
An audio recording of Dr Barrett's presentation and the ensuing discussion is available here: http://www.parlament.mt/filebank/audio/FEAC%20052_12-07-2011.mp3
