Bicamérisme et représentation des régions et des collectivités locales : le rôle des secondes chambres en Europe
Palais du Luxembourg, 21 février 2008
Chair: Mr Jean-Jacques HYEST (France), Chair of the French Senate's Law Committee
Ladies and gentlemen,
I am grateful to the organisers for allowing me to chair part three of this conference. The Senate's Law Committee takes a keen interest in everything to do with the representation of local authorities. I should add that our house also represents French nationals abroad. That is one specific feature of the French Senate.
It is true that the European countries all take a rather different view of their local authorities, whether in terms of their institutional status, their powers or funding methods. But in my opinion, differences aside, these countries share two aspirations: they want local authorities to be energetic and effective and they want their interests to be taken into account properly at national level, because true local democracy cannot exist unless there is proper interaction between the local and national level. Second chambers are well placed to serve as the interface here and that is why we favour a differentiated bicameral system, which has been shown to work well.
Of course the question does not arise in quite the same way in all 27 member states of the European Union, still less in the 47 countries of the Council of Europe. Nevertheless, these common issues have now outgrown the national stage and graduated to the European theatre. To be frank, the obvious answer is a European second chamber, which some people think should be given responsibility for representing local interests.
That idea has been mooted several times and I would not be surprised to see it coming up at intervals during European talks, at a time when Europe itself is placing greater value on grass-roots democracy and recognising the vital role of decision-making bodies which are as close as possible to the EU citizen. Whatever the case, the French Senate takes pride in the ties of friendship and co-operation it has forged with many other second chambers in Europe. Our Speaker, Mr Christian Poncelet, initiated the process. Allow me here to pay tribute to the wide-ranging work done by our Senate's delegation to the European Union whose Chair, Mr Hubert Haenel, will be summing up the work of today's conference presently. This energetic co-operation, and there is room for it to be taken still further, helps to promote the bicameral model in Europe. Several of the new EU member states have already opted for bicameralism, starting with Slovenia, which has held the presidency of the Union since the start of the year.
If my information is correct, the Slovene parliament has a second chamber (the National Council), twenty-two of whose forty members are charged with representing local interests. Mr Duan trus, who will be speaking in a few minutes, can tell you more about it than me, because he is the National Council's legal adviser.
In July France takes over the EU presidency from Slovenia. So here and now I voice the hope that the French presidency will permit us to build on the outcome of our debate, to which the French Senate is proud to be contributing. I hand over now to my esteemed colleague, Professor Delpérée.
Introductory report by Mr Francis DELPÉRÉE (Belgium), Senator and Professor Emeritus at the Catholic University of Louvain
Mr Chair, ladies and gentlemen,
It falls to me to introduce our fourth working session, which rather forms the culmination of our conference today.
What have we done so far? Three things, basically.
We looked, first thing this morning, at our states and the way in which they organise their parliamentary institutions.
At the end of the morning we looked at our fellow-citizens and how they are able to express themselves in municipal, regional or general elections, not forgetting European elections.
At the start of the afternoon we looked at our regions and local authorities and the part they can play in second chambers.
We now need to look at ourselves, that is to say Europe's senates.
The question is simple. What are the powers and responsibilities of a second chamber once it has been established on the basis of regional or local criteria?
To put it another way, does a senate of the regions or a senate representing local authorities have different responsibilities from those of a senate constituted on the model of the unitary state?
Going straight to the heart of the matter, I would ask this. Is it a question of more or fewer responsibilities? My answer is unequivocal, and likewise straight to the point. More and fewer responsibilities. In other words, different ones.
In short, senates with a regional or local base are different from senates which have come down to us from the liberal 19th century.
This warrants a word of explanation.
- Starting with the "more".
Yes, the senate can be composed in the same way as the first chamber, in which case it is a straight (or pale) copy of it. That takes us back to the vexed question of why two assemblies made up in the same way should have different responsibilities. Which in turn prompts the question of what is the point - that is to say, the legitimacy and effectiveness - of a "twin" assembly? 37 ( * )
The senate can also, as you have said, be a quite different chamber, composed differently from the first chamber. Its work, and its make-up, then reflect the regional and local diversities inherent in the state. That being so, there is no reason why it should not have functions different from those of the traditional senate. Institutional logic even suggests that this should be so. A different composition entails different powers and responsibilities.
Along this line of thinking, the two chambers in a given state follow different paths. The regional or local senate has specific responsibilities, responsibilities to which the first chamber would not itself aspire. The converse also applies.
What are these specific responsibilities? I will mention four of them, in a quasi-anthropomorphic way. The senate can be face and language. It can also be gesture and gait.
1. - First of all, the senate's "face". The senate should look like the federal, regional or devolved state of which it is an essential component. It should be a reflection of it. It should, in its organisation, operating methods and the exercise of its responsibilities, mirror the institutional balances which underpin political society.
The senate helps to structure and organise the political arena. It acknowledges its diversities but brings them together within an ordered institutional whole.
That is not theory, but practice. To take just one example, in any constitutional state, the process of drafting and revising the constitution is of major importance 38 ( * ). It is key to the constitutional system.
If that process takes place at least partly in the senate, it must take account of the specific structure and features of the senate. This basic institutional reality must translate into practical rules concerning timetables, majorities and procedures.
2. - Then there is "language". The senate can serve as a platform for making the voice of the people heard.
It is the sound box for regional and local concerns. In two ways, at least.
Firstly it can enable the voice of particular local and regional authorities to be heard in debates on their organisation, functioning or funding.
Secondly, it can enable their points of view to be heard in any other debate and provide a regional or local take on issues that are strictly speaking matters of national interest.
But this is not an easy exercise. Constructed in this way, the senate can become a vehicle for separatist demands. If one is not careful, it can be a Trojan horse that surreptitiously insinuates itself into the heart of the state. In fact it can only fulfil its function as a body speaking for regional and local interests if, notwithstanding its composition and its own functions, it understands that it is, in its own way, a "national assembly".
3. - Pictures, words... and there are gestures too. We should remember that a regional or local senate can act as a calming influence. At the point where several kinds of interests intersect, it can serve a very useful purpose.
What, then, is the problem? In all good faith, one authority may take initiatives which encroach on another's areas of competence or conflict with its interests. The risk of this is all the greater when the issues addressed include aspects related to some action which one or other authority has taken.
The second chamber can be extremely useful here. Rather than allowing a political and legal conflict to build to boiling point, it can help to produce constructive suggestions.
Because of its composition it is the institution best placed to reconcile differing points of view - not to uphold the national interest in every case, not doggedly to uphold the solutions advocated at regional or local level, but to ensure a balance between concerns expressed by the centre and by the periphery.
4. - Lastly, there is "gait", the taking of steps. The international function of a regional or local senate - its diplomatic function, as Mr Poncelet puts it - is very important. The need here is to take a huge step - from local to international level.
Alongside a first chamber which confines its activities to domestic affairs, it may be in the interests of the second chamber to specialise in the consideration of international, and particularly European, affairs.
The example of Belgium is noteworthy here. The Belgian Senate is currently being reorganised. There are a number of plans to restructure it along regional lines. If this happens, the general view seems to be that the individual assemblies will no longer need to give their assent to international treaties on matters falling within their competence. These and other matters can be left to the Senate since the Senate is an emanation of the assemblies themselves.
- So much for the areas where it needs more responsibilities. Now let us look at those where it needs fewer.
Let us look at the other side of the coin. Here too, I think, a number of institutional realities are very obvious. The moment one moves towards making the work of assemblies specialised, restrictions need to be placed on the way in which senatorial functions are defined and exercised.
I have four brief observations concerning the factors affecting the work of the Senate - time and space, power and influence.
1. - Time? Whatever its composition, the second chamber is precisely that, a second chamber. It works to a different time frame from the first chamber. The comment has often been made that its deliberations are a longer-term undertaking.
If the second chamber is built on regional and local criteria right from the start, it will stand back still further from day-to-day current affairs. It will be a relay station for other regional or local assemblies. It will address issues ex post facto .
2. - Space? One technical question is too often overlooked. In a senate of regional or local representation, do the senators have a mandate solely within that senate, in which case their membership of a regional assembly is simply a stepping-stone towards recruitment to the senate? Or do they necessarily, under the split functions method, have responsibilities in the individual assemblies that elected them?
In the former case they hold an office which they exercise independently, until the end of the parliamentary term, when they must be accountable to the assembly that elected them and indirectly to the voters. In the second case they speak for, and act for, the authority they come from.
3. - Power? A senate is always defined in relation to the first chamber. The latter represents the unitary state. The unity of the state may be real or artificial, it doesn't matter. There can be no question of rivalling the first chamber here. Democratic legitimacy is more important than anything else.
This can have major implications for the definition of specific attributes. In principle, political and administrative scrutiny of the government, and the attendant exercise of the "power of life and death", are not the job of the senate.
Different political majorities may become apparent. It would hardly be thought right if a government with a majority nationally could be censured by an assembly which was an emanation, in a diversified manner, of majorities in regional and local authorities.
4. - Influence? It is real. But in a dualist situation of this kind, where the powers and responsibilities of the two chambers coincide, it is not the senate that has the last word. Various arrangements exist for dialogue between the two chambers.
Ladies and gentlemen, I hope I have not fallen prey this afternoon to the habits of the job - of the professor who likes to put the many forms of second chambers, present and future, in the correct boxes of constitutional dogma. Of the Senator who believes in what he does and the institution he works for. And, I would add, of the Belgian citizen who clings desperately to institutions which, like the Senate, may sometimes seem to him like beacons of shining light in the darkness.
I have two firm convictions.
Firstly, I agree with Barthélémy, who said a century and a half ago that "sight is sight" but that "one sees better with two eyes". Reading things twice is useful, especially if you wear a different pair of glasses each time.
Secondly, like James Madison and in accordance with the regionalist, not to say federalist, train of thought which came down to us from him, I think that transforming the nation requires a transformation of second chambers.
The nation now has several faces. As in Picasso's early works, it can look in several directions at once. How can our parliaments not reflect that reality, even if it is less harmonious than the one we dream of or imagine on paper?
We have a shrewd idea of what the political stakes are. We have to avoid a situation in which double reading, double representation and - to take account of the European level - duplicate institutional structures lead to inconsistencies, paralysis and guerrilla warfare, of which the citizen is likely to be the first, hapless victim.
The bicameral system offers us daily proof that multi-tier deliberation and interinstitutional dialogue are now democratic values. Certainly there is no need to increase the number of assemblies ad lib - I am thinking of the Empire - and so weaken them. But in order to take account of the complexities of modern society and the division of legislative power, it may make sense to have multiple assemblies. It may be practically beneficial too, provided, of course, that they agree on and pursue the same objectives, without necessarily "moving in concert" as Montesquieu put it, but acting each in its own way and according to its means in pursuit of the general interest.
Mr Jean-Jacques HYEST
Thank you. I think we have learned a lot from that. We do not incite people to embrace surrealism or cubism in every area, but the image was an interesting one. Many thanks, Professor.
We now have four speakers. Mr Duan trus will speak first. Then I shall call Mr Jean-Claude Peyronnet, Mr Michael Neureiter and Mr Jiøí éák. We have asked Mr Peyronnet to speak at the end because he is co-author of the French Senate's comparative report on the organisation of second chambers in the different countries of Europe. Mr Gélard mentioned it this morning.
Mr trus, over to you.
Mr Duan TRUS (Slovenia), Senior Lecturer at the Faculty of Administration, University of Ljubljana
Thank you, Mr Chair. Ladies and gentlemen, distinguished guests,
I shall talk to you about the links between regional representation and the powers of the National Council of the Republic of Slovenia, which is the upper house of parliament in Slovenia.
But before I talk about regional representation, let me explain to you the composition and powers of Slovenia's National Council. It has some unique features. There is no chamber in Europe with exactly the same powers and responsibilities. The Slovene Constitution does not explicitly say that the National Council is a second chamber. That status derives from its role, functions and position under the 1991 Constitution. It was based on a compromise involving a number of ideas and the model of the Bavarian Senate, abolished in 1998. After the National Council was formed, a consultative body was also set up which answers to the National Council and is purely advisory.
The National Council has 40 members: 22 representing local interests (the biggest group), 18 representing society and the world of work, four members representing employers, four representing workers, six representing non-commercial activities and four representing farmers, trades and the professions.
Its members are chosen by indirect suffrage, through electoral bodies. They are not elected directly like the members of the National Assembly, Slovenia's first chamber. The 22 National Council members representing local interests are elected by electoral bodies in some twenty constituencies. The municipal council chooses a number of voters, in proportion to the municipality's population. Each municipality can nominate a candidate for the National Council. The electoral bodies then elect those candidates by simple majority vote. The same method is used in electing the 18 members representing society and the world of work. Candidates here are nominated by the various interest groups, according to their own rules. These groups may be trade associations, associations of employers or other associations, or professional bodies at national level. Members of the National Council serve a four-year term, one year longer than members of our National Assembly.
The Slovene system is also an asymmetrical bicameral system. The upper house's powers are not the same as those of the lower house. The upper house has less authority. The powers of the National Council under the Constitution are fairly weak. It can propose new legislation, but rarely does so. For the most part it suggests accommodations. Thus, in its fifteen years of existence, the National Council has put forward only thirty items of draft legislation.
It can also forward its opinion to the National Assembly on all matters in the Assembly's areas of competence. In addition to draft legislation, it may give its opinion on proposals to amend the Constitution and make statements on European Union issues (appointments and similar matters). The very short time allowed for the National Council to exercise its veto (seven days) is explained by the fact that its members do not hold office as a full-time job. The National Assembly may reject the National Council's veto, unless it was voted for by an absolute majority. Subsequent reading of the draft law in the National Assembly does not require debate of the draft law or the National Council's veto in greater depth. The Assembly simply votes to adopt the draft or not. Its members can then give an explanation of their vote. The options, in fact, are to pass a law which may have an inherent weakness or to reject it in its entirety. Thus one controversial section can cause a whole draft law to fall. So the members of the National Assembly are very much under pressure. If a controversial section of a draft law could be amended, there would be an alternative.
It should be noted, however, that the National Council has no veto over the budget since under the Constitution the budget is not a piece of draft legislation. Since the National Council can veto a draft law on grounds of its total or partial unconstitutionality, it has the authority to demand a ruling on the constitutionality and legality of any laws passed. Thus numerous provisions have been overturned by the Constitutional Court following a challenge by the National Council.
But the most important right devolved to the National Council is that of demanding a referendum. No other upper house of parliament in Europe has this power. So if the National Council does not agree with statutory provisions adopted by the National Assembly, it can call for a referendum within seven days. Such a call can be considered a very severe warning to the National Assembly. Thus, if the Assembly fails to take account of the National Council's position, the Council can insist that the electorate has the final say.
This power is interesting in that it makes it possible, through a referendum, to strengthen the legitimacy of the National Council, which is elected not directly but indirectly. To give you an example, last autumn it called a referendum on the draft "Insurance Company Ownership Transfer Act". Only 30% of the electorate voted in favour of the government's proposal; this was tantamount to a vote of no confidence. But in the fifteen years of its existence the National Council has only exercised this prerogative twice. In other words, it is aware of the consequences of doing so. If it were used unwisely, the powers of the National Council might become devalued. And the people are not amenable to a referendum on every kind of subject.
In tandem with its power to call a referendum on draft legislation, the National Council can also demand an inquiry into matters of public importance - though it does so only rarely. It cannot set up a commission of inquiry itself, but can require the National Assembly to do so.
In political terms the legitimacy of the National Council is not very important, unlike that of the National Assembly, which takes all the final decisions.
By virtue of its composition the National Council is the body which represents regional interests, since most of its members speak for local interest groups. But its powers are too weak for it to represent the interests of local authorities effectively. It is a participant in the law-making process, but it is not a deliberative body and not the most powerful representative of local interests since the National Assembly alone has a variety of channels for co-operating with the municipalities.
Mayors also sit in the National Assembly. There could thus be incompatibility between the two posts. Constitutionally this is questionable because of the very nature of local authorities, which are a devolved form of central government. In effect mayors are, on the one hand, representatives of the local authority and, on the other hand, members of parliament representing the nation, by virtue of the executive powers conferred upon mayors in their municipalities and the National Assembly's scrutiny of their work as mayors.
The National Council must exercise its powers to uphold local interests. Because it has this prerogative, any reform of it should be designed to strengthen its legitimacy by enabling it to represent local authorities better. The National Assembly is already working on a series of draft laws to establish a second tier of local self-government. Whilst it is important that the National Council seeks to reform local self-government, it must also become the point of contact for Slovenia's regions. Securing that role will have an impact on its powers and composition.
Thank you, ladies and gentlemen.
Mr Jean-Jacques HYEST
Thank you, Mr trus, for telling us about the fairly recently established second chamber in your country and for answering some of the points and questions raised by Professor Delpérée. Every country has its own national character. Mr Jean-Claude Peyronnet, will you address us now?
Mr Jean-Claude PEYRONNET (France), Senator
Thank you, Mr Chair.
I must apologise, because my paper does not quite answer the question asked. But that is the way of politicians who are also academics. I will, however, answer the previous question, so perhaps I may be forgiven. I should add too that I am a member of the Socialist opposition. Our Chair, who also chairs our Senate's Law Committee, will tell you that this is my only shortcoming...
I am highly critical of the fact that it is currently impossible to improve representation in the French Senate and make it match the real situation of the country. To explain, I should say that I, like the great majority of my colleagues, am very much in favour of a two-chamber parliament. The difference between the Senate and the National Assembly lies in the way the two bodies are elected. The metaphor used by our rapporteur is appropriate here - reading things twice wearing different pairs of glasses.
Over the last 25 years France has changed a lot, from a highly centralised unitary state to one in which the Constitution acknowledges that the Republic has a devolved structure. So I think it is time to take on board the changes which the different phases of devolution have brought to the organisation of our administrative structures. We must give local authorities, whether they are well established like the départements or growing in influence like the regions, the chance to be represented, but without changing the nature of the French Senate.
In terms of parliamentary technique, French-style bicameralism is a system that works well. Thanks to good communication between the two houses of parliament, parliament can do in-depth and well-considered work, with the Senate playing an eminently positive and moderating role. Thus, the double reading of legislation, overseen and finalised by a joint committee, guarantees good law-making, in which the Senate plays an important part, regardless of who holds the political majority in the National Assembly. Very often it also performs a moderating role, as it did when the law on DNA testing to establish a blood relationship between foreign nationals seeking family reunification was under consideration.
The Senate's moderating role derives from two things. Firstly, the length of senators' term of office. This has been cut from nine to six years but, at the risk of incurring the disapproval of my political party, I wonder if that was a good idea.
Secondly, indirect election of senators by a restricted electoral college made up of local elected representatives, which makes them less subject to the pressures of current affairs.
The system could be improved in a number of ways, notably by reducing the number of laws debated as matters of urgency, which reduces communication between the two houses. But these are minor adjustments.
If we look at the composition of the upper house in terms of who represents what, we see that Senate meets the requirements of the Constitution exactly. According to Article 24, " The Senate shall ensure the representation of the territorial communities of the Republic ." Thus, of the 319 senators currently sitting - I exclude here the 12 senators representing French nationals abroad who, by definition, do not have a local mandate - only 53 do not have a local mandate. This means that 84% of senators do. As far as I know, 23 senators are regional councillors (three are regional presidents), 115 - or 35% - are département councillors (34 are département presidents), and 204 - or 61% - are municipal councillors, 121 of them mayors (36% of the Senate).
So the local and regional authorities are well represented, with 441 members of the National Assembly and 278 members of the Senate having local mandates. The problem is that these senators are not elected by their peers. The 115 département councillors and 23 regional councillors are appointed by a college in which département and regional councillors are a very small minority. Nationally, 95% of the "grand electors" making up the electoral college which elects the senators are from municipalities, with small municipalities being very over-represented. In 2004, municipalities with fewer than 100 000 inhabitants represented 16% of the population and 31% of the electoral college responsible for electing the Senate. Municipalities with more than 100 000 inhabitants accounted for 15% of the population but only 7% of the "grand electors". In my own département of Haute-Vienne, for example, the main town has a population of 140 000. It has 40% of the population and only 17% of delegates on the electoral college of the "grand electors".
In order for the Senate be a relatively faithful reflection of the French regions and local authorities and to satisfy Article 24 of our Constitution other than just formally, representation by the "grand electors" would have to reflect the weight of the larger territorial units, the départements and regions.
I do not agree that the presidents of département and regional executives should routinely be members of the Senate. However influential, they should be treated like everyone else. In general that solution is accompanied by a call for representation of employers' associations and trade unions. If that happened, the role of the Senate would be different. It would become a kind of supreme Economic and Social Council, losing its function of general law-making. So that solution is to be ruled out.
Nor do I think we could or should have a system modelled on that of Germany, where members of the Bundesrat are appointed directly by the Länder . Every country has its own history and France is historically a unitary, not a federal, state. It remains a unitary state, despite the constitutional reform of 2003, which introduced the idea of a Republic of devolved government.
The département and regional councils and, consequently, the municipalities ought to be represented in their own right. This would draw a line under the thinking of the 1958 Constitution which, according to Article 24, is that the Senate does not have specific powers in regard to local authorities.
So what might the solutions be?
One could have an electoral body made up of three colleges of "grand electors": that representing the municipalities might account for 50% of the total, that representing the départements 25% and that representing the regions 25%. The college for the municipalities could be formed without difficulty, because there are 36 000 of them. But constituting colleges for the départements and regions would be problematic because these have so few elected representatives. So the members of the electoral college responsible for electing senators have to be drawn from elsewhere.
There are two possible solutions here. One would be to use plural voting, with each vote by a département or regional council counting for 10 or 15 votes. The other would be to allow each département or regional council to choose senators from outside its own ranks. It would do so in proportion to the membership of the council, until the requisite number of members for the college concerned was reached.
This latter solution would bring into the electoral college a sizeable number of representatives who are not council-elected. True, the procedure was condemned by the Constitutional Council in 2000. But the Balladur Committee suggests revising the Constitution as follows: " The Senate shall ensure the representation of the territorial communities of the Republic on the basis of their population size ". If that change were made to the Constitution, I think the Constitutional Council's objection might be withdrawn.
Mr Chair, ladies and gentlemen, this solution would have a twofold advantage. It would enable the Senate to reflect the new regional reality in France better and to be more directly in touch with political swings within the country by allowing changed majorities in this unchanging assembly.
This is my prescribed remedy for treating the chronic ill-health of this institution, and it is not a life-threatening one.
Thank you.
Mr Jean-Jacques HYEST
What you are suggesting is not a radical remedy but, given the drastic solutions advocated by others, your ideas are a valuable addition to the debate. I note that you want to keep a fully functioning legislative assembly and consequently the existing system. Some have sought to transform the Senate into a big economic and social council. Their efforts have not met with much success.
I now invite Mr Michael Neureiter to address us.
Mr Michael NEUREITER (Austria), member of the Congress of Local and Regional Authorities of the Council of Europe, Deputy Speaker of the Regional Parliament of Salzburg
Mr Chair, ladies and gentlemen,
We have heard accounts of bicameralism in France and Slovenia, and I should now like to offer you a few thoughts on the position of the second chamber in the Republic of Austria. Of course, the danger is that I may simply be giving you a point of view. As a member of the Salzburg Parliament for 24 years, it may be that I underestimate the value of Austria's other democratic institutions.
Austria's Bundesrat is seen as a parliament of the regions which is part of a devolved unitary state. It knows exactly what it wants to do and what it must do under the Constitution. I will give you a brief history of bicameralism in Austria before looking at the current position and proposed reforms.
The Republic of Austria came into being in 1918. At the Saint-Germain-en-Laye peace talks in 1919 Georges Clemenceau, referring to the post-monarchist period, neatly summed up the position of the country as follows: "What's left is Austria".
In 1920 Austria's first Constitution was drawn up. It makes provision for a Bundesrat . I should make the point that the young Republic of Austria was not easy to organise. The nine historical regions of Austria - including Salzburg, the most recent - became part of the country in 1916. In 1918 the regions declared their willingness to form a republic, which they duly did after the fall of the Reich in 1945.
The Länder regrouped and the capital, under occupation at the time, was incorporated into the Republic of Austria. The Länder have thus formed the Republic of Austria on two occasions in history. It is important to appreciate this and to understand the role the Länder have played in the development of Austrian democracy.
In 1920 there was a Bundesrat alongside a lower house. Both assemblies sat in the same building, the Vienna Parliament. The lower house had 193 members, elected every four years.
The Bundesrat , Austria's second chamber, has 62 members, of whom 16 are women. They work part-time representing the nine regions and are appointed by them. Each region has three to 12 representatives in the Bundesrat , serving a term which depends on the term of the regional parliament appointing them. The regional parliaments are elected for five or six years, depending on the Länder , with each Land having at least three seats in the Bundesrat . The presidency of the Bundesrat is held in rotation, in alphabetical order - Burgenland to Vienna. Until recently the Bundesrat was dominated by the two biggest Austrian parties, the People's Party and the Social Democratic Party. Today it also includes some Greens and three unattached members.
In France 61% of members of parliament have a municipal or cantonal mandate, compared with 43% members of the Austrian Bundesrat (7 out of 62 members are also mayors). These figures suggest that France represents local authorities better than Austria. But our representatives are elected by our regional parliaments, and so contribute to the proper operation of Austrian democracy.
What powers does the Bundesrat have?
According to our previous speaker, the French upper house has less power than the lower house. The same is true in Austria. Austrian members of parliament can issue proposals for legislation and vetoes which have suspensive effect, though not for as long a period of time as in Romania or Slovenia. But the lower house can overturn the veto.
Cases of legislation which must have the assent of the Bundesrat are unusual. These are changes to the Constitution, where the aim is to restrict the powers of the regions, for example. The Bundesrat has not just the right, but a duty, to approve legislation, especially that which pertains to the European Union.
In that sense its role is very important. But the system's Achilles heel is that the Bundesrat has very few powers in respect of financial transfers. All it can do is object to some of them.
The Bundesrat has a veto which suspends the progress of a law but does not, by definition, end it altogether. It can hear certain members of the government, pass resolutions, sign petitions, etc. But none of its edicts are legally binding. In the end, its powers are very modest. As a result it is not in danger unless a political crisis arises. For example, it was in the media spotlight recently for brokering talks between the two parties in government. If its majority is different from that of the other chamber, then things can get complicated.
So the Bundesrat is criticised as having too few powers and ultimately being a chamber of little importance. But one thing is certain: the members of the Bundesrat vote more along political party lines than regional lines. That behaviour means that there is no perfect representation of regional interests in the second chamber, since the decisions taken there are strictly political.
A conference of regional prime ministers is held, on the German model. This serves to uphold the interests of the Länder . The constitutional weight of the Bundesrat is thus relatively weak and its powers are to some extent exercised through the conference of prime ministers. That conference is not provided for in the Constitution, but it plays a major part in the political process. Thus, regional interests are indeed represented, but not in the Bundesrat . One of the reasons behind our wish to reform it is to see it given its rightful powers. The prime ministers of the regions, having their own executive power, have interests that are not upheld in the Bundesrat and the regional parliaments are not represented at the conference of prime ministers.
One can thus argue that a reform of financial powers is needed. Consultation arrangements for financial matters have been envisaged. These could be used when a legislative body was contemplating new legislation which entailed a financial cost to another body. A regional representative could then object to the imposition of this additional cost and consultation arrangements would be used to clarify the situation. This after all is what happens every year at regional and federal level.
Another reason for reform is the principle that the Bundesrat can only concern itself with a piece of legislation if the other house has dealt with it first. To this extent the two chambers are not equal. The desired reform raises a number of questions. The idea of placing the two chambers on an equal footing has been doing the rounds for a few years now, notably in the "Austria Convention" on constitutional reform which was held in Austria in 2003 and 2005. At those meetings we asked ourselves whether members of the Bundesrat should represent governments or regional parliaments.
It is a question which a number of countries need to address.
Not many people in Austria know this, but a few months ago a document was laid before the Federal Prime Minister calling for total reform of the Bundesrat . The idea was that the 62 Bundesrat members should dissolve their chamber and create a new assembly charged with representing the regions. Each region would have a voice in the new body and would be represented by three regional figures: the prime minister, the speaker of the parliament and a third person elected by the regional parliament. This solution is under consideration. It would be a move in the right direction.
The alternative would be to abolish the Bundesrat . Both solutions should be considered. At any rate, the Bundesrat cannot continue in its present form. In the opinion of some, it should promote subsidiarity and the Länder should be able to take decisions that are binding on the government, in such a way as to strengthen the position of Austria's nine regions.
I am more in favour of a reform of the Bundesrat which improves the way in which it operates rather than abolishes it.
Thank you for listening, ladies and gentlemen, and thank you for inviting me to this most interesting conference.
Mr Jean-Jacques HYEST
Questions are being asked in a lot of countries. I now hand over to Mr Jiøí éák, Senator and President of the Czech Republic-France Friendship Group.
Mr Jiøí éÁK (Czech Republic), Senator, President of the Czech Republic-France Friendship Group
Ladies and gentlemen,
First of all I must say that I was surprised to learn that part of this conference was to be devoted to the Czech Republic. The Czech Senate is not a chamber of regional representation. Consequently, its powers are not particularly regional. In my paper I shall describe what kind of a second chamber the Czech Senate is and what kind of links can be forged between the representation of regions and local authorities and the powers of second chambers.
Preparatory work on the new Constitution for the independent Czech Republic, which began in summer 1992, provided for a bicameral parliament, the system adopted in the past by Austro-Hungary, the Czechoslovakia of the inter-war years and the federalist Czechoslovakia of the period 1969-1992. Given that the independent Czech Republic wanted to link in to the spirit of the first Czechoslovak Republic of the pre-war years, seen rather arbitrarily as a kind of golden age for the country, it seemed natural to base the new Constitution on the constitutional charter of the time, taking over its qualities, but also its shortcomings. So we took over the bicameral structure of parliament and kept the same type of parliament, that is to say one whose second chamber does not uphold any specific interest (social, national or even regional). Its essential role is to guarantee the stability of the constitutional system and play a "corrective" role in the legislative process.
In 1992 there was a small minority of persons opposed to the creation of a bicameral parliament. The majority was in favour, but divided as to which type of second chamber to choose. One quite large group wanted a senate representing the historic lands (former Kingdom of Bohemia, Margravate of Moravia and the former Austrian part of the Duchy of Silesia), whilst another group wanted a senate that represented the regions.
Our bicameralism system is based on two chambers which represent the people, distinguished not by their degree of representativeness, but by the scope of their powers, their method of election, the length of their term and the method for renewing them. The Czech Senate embodies many desires, one of them being that it should be a "council of wise persons" modelled on the Roman Senate, whose members were more experienced and less tied to political parties and who were tasked with considering longer-term issues that extended beyond the current parliamentary term. For that reason the minimum age for membership of the Senate was set at 40 (it is 21 for members of the Chamber of Deputies). They serve a six-year term (deputies serve four years) and they are elected on a first-past-the-post basis. This system - as opposed to the proportional method - is supposed to focus attention on the personality of the candidate and, at the same time, to increase the election chances of those standing as independents or as representatives of the small parties.
Hardly had the Constitution been adopted, however, than some people started pointing to its regional dimension. Senators are elected as individuals in electoral constituencies of 100 000 or so voters. So the voters naturally see them as representing their constituency. And sociology studies have shown that many senators see themselves like that, rather than as representatives of the state as whole. This regional element, underestimated to begin with, led to a spontaneous development which has changed the role of the Senate. It has changed from being the guardian of the foundations of the constitutional system and co-decider on all undertakings to do with national sovereignty into a chamber which upholds the interests of the regions and municipalities. Thus, whilst at the outset its members were largely former ministers, ambassadors, senior civil servants and academics, nowadays they are mayors and municipal councillors who exercise their office at the same time as their office as senators. The political parties choose to field candidates of this type and the voters elect them as persons of proven worth who are known locally and loyal to the region.
But these senators are also interested in more specific matters such as Czech foreign policy, reform of the judiciary, possible revisions of the Constitution and application of the subsidiarity principle in the scrutiny of directives issued by the European Union.
How is this change to be assessed?
On the one hand the Senate has become far more useful in the implementation of day-to-day policy. But on the other hand the system in place comes up against constitutional difficulties. The Senate was designed to play an important part in voting through institutional and electoral laws and in the approval of international agreements, martial law, etc. Together with the President of the Republic, it decides the membership of the Constitutional Court. But representatives of the municipalities do not always take these things in their stride. On matters with which they are well acquainted, however, the senators seem simply to correct texts passed to them by the Chamber of Deputies. The Deputies can, by an absolute majority vote, impose their own understanding of current law. So there is a kind of tension between the constitutional status of the Senate and its de facto composition.
In concluding this brief presentation, I should mention that at the time of the change to devolution, so nervously anticipated in 1992, there was often talk of a possible connection between the Senate and bodies representing the regions. But the Senate could not have a meaningful regional dimension unless it was also able to vote on the national budget. And to date everything to do with the budget is the sole responsibility of the Chamber of Deputies. The Senate would be of little use to the regions if it could not decide where the money was to go. Also, it would doubtless be necessary to identify the group of laws of special importance to local authorities, on which the Senate's vote should have equal weight with that of the Chamber of Deputies.
The other sensitive issue is that of senators possibly being elected directly by regional representatives. This will remain on the table for as long as senators consider the fact of being directly elected as their chief attribute. Any reform of this kind would also have to allow for the considerable asymmetry between the regions: the most populous region has four times as many people as the least populous. In any case, the debate on this is far from closed.
Mr Jean-Jacques HYEST
Thank you, Mr éák, for your account of these challenges, which are rather different from those we have heard about so far. It has been a very rewarding experience to learn about the ventures undertaken in some countries. My fellow-members of the French Senate's Law Committee will doubtless be keen to make another trip to the Czech Republic and Austria!
I now hand over to Mr Hubert Haenel, Chair of the French Senate Delegation to the European Union, who will sum up today's conference.
* 37 The nation has traditionally been represented in an assembly -- national, by definition. That assembly was made up "in our image, after our likeness", to use the biblical phrase. But the nation may not be as homogenous as people say. It can evolve, adapt, change. It can even multiply. In future the nation might be represented in four separate assemblies -- two at home and two as part of the European system. These assemblies would be an attempt to cope with the complexities of national identity in the early 21 st century.
* 38 In a federal state, especially, one has to combine the rules of equality and participation ("La complexité fédérale", in Mélanges en l'honneur de Pierre Pactet, L'esprit des institutions, l'équilibre des pouvoirs, Paris, Dalloz, 2003, pp. 117-127).