Scrutinising European business

Parliament has given the third reading to a bill that will formally place Malta in the enlarged European Union within a year's time. It is therefore apt to discuss the role of parliament in the new position of Malta as an EU member.

In parliament, the opposition proved itself to be a constructive one, ready to promote new ideas and amendments to improve the highly deficient and technically disastrous bill. I do not intend to delve into the legal intricacies of the doctrine of supremacy of Community law over domestic legislation as others, such as Alex Sceberras Trigona, have done so in a much better way than I can do anyway. I therefore wish to study the role of parliament in the "prefabrication stage" of secondary Community legislation given that the foreign affairs minister himself has already given some strong hints as to the way forward in this regard during the debate in parliament.

A debate on Community legislation presupposes a situation where the sphere of competence at issue is transferred from national level towards the European Community through the operation of the Community treaties themselves.

It follows that in such cases the role of national parliaments would not be that of an "exclusive legislator", as we traditionally envisage it. Rather national parliaments would only be able to provide a hopefully effective method of scrutinising proposals.

To be fair, two recent efforts in Brussels have tried to enhance the role of national parliaments in this context. The protocol on national parliaments, as agreed in the Treaty of Amsterdam (1998), required a six-week period to elapse between a legislative proposal being made available to the Commission, parliament and Council and a decision by the Council to adopt an act of common position on the basis of that proposal: this was to allow time for national parliaments to study European "business".

Secondly, annex II to the draft European constitution, called "protocol on the application of the principles of subsidiarity and proportionality", proposed a faint system for "monitoring the application by the institutions of the principles of subsidiarity and proportionality".

The end result of this system is not binding in any way on the institutions. The effect would only be that the European parliament, the Council and the Commission would take account of reasoned opinions issued by the members states' national parliaments.

My proposals in this context are modelled on the English system, as is, after all, the bill on the EU which has just been approved in the House.

Firstly, there should be an understanding that government ministers will not agree, as a rule, with proposed European legislation while the same legislation is still being considered by our local parliament. Two resolutions have been passed in Westminster to this end: those of November 17, 1998, and December 6, 1999, which unequivocally state that "ministers should not agree to any compromise proposal that may emerge from the Conciliation Committee while that agreement is still subject to scrutiny or awaiting consideration by the House".

In the words of the constitutional writers, this so-called scrutiny reserve has the main aim of "enabling parliament (the opposition and the civil society) to attempt to influence the position the government will take in negotiations with the other member states".

A second method - which has already been mentioned in parliament in relation to the new but temporary functions which will be assumed by the Foreign Affairs Committee - is that of enabling or establishing special parliamentary committees to scrutinise European proposals.

Under the English legal system, the two Houses have different types of committees which complement each other: the Lords' committee conducts in-depth analysis of a few significant European proposals while the Commons' committee assesses all proposals.

The two committees were established a few years ago following important recommendations issued by the so-called Select Committee on Modernisation. I feel that our own administration should take detailed account of this modernisation report.

Insofar as the European Scrutiny Committee of the House of Commons is concerned, this is a select committee of 16 members entitled to appoint specialist advisers and call for witnesses and evidence. The terms of reference of this committee are:

The European Scrutiny Committee is entitled to examine EU documents and (1) report its opinion on the legal and political importance of such documents; (2) make recommendations for further consideration of any such documents by one of the European Standing Committees and to consider any issue arising upon such document or related matters.

In turn, the European Standing Committees - there are three of them - are responsible for several government departments and, when recommending that a European document requires further consideration, the European Scrutiny Committee specifies the standing committee to which a document should be referred.

I believe that given the wide and important nature of European laws and the impact these have on the lives of the citizen, there should not be just one scrutiny committee, as is being proposed by the government, but a European Scrutiny Committee and a number of European standing committees as the need arises. It is worth studying the English experience in this regard.

For the sake of completeness, the House of Lords has also its own European Union Committee. This is a very active institution which makes detailed inquiries into subjects chosen by the sub-committee from within their field of activity. In the words of constitutional lawyers (Jackson and Leopold), the reports of the committees are highly regarded throughout Europe and are capable of influencing European policy development.

A third method which is complementary to the previous two is that of parliamentary debates. Under this method, the government is bound to publish White Papers on Community developments every six months. These can form the basis for debates in the either House. Records show, however, that since 1989, debates on European documents have been held in the European standing committees rather than on the floor of the House of Commons.

This was a brief analysis of how the UK parliament tackled its limited and indirect role in the context of secondary Community legislation. I sincerely hope the government will take cognisance of the importance of making the best out of this function.

In the meantime, I am sure the opposition will continue to work hard to promote the need of scrutinising attentively European business.