Bicamérisme et représentation des régions et des collectivités locales : le rôle des secondes chambres en Europe
Palais du Luxembourg, 21 février 2008
I. FORMS OF REPRESENTATION IN SECOND CHAMBERS: ELECTION PROCEDURES
Chair: Mr Halvdan SKARD, President of the Congress of Local and Regional Authorities of the Council of Europe
My thanks to Ms André, Deputy Speaker of the French Senate, for agreeing to chair part one of our conference. We now move on to part two of the round-table discussion on prospects for the representation of regions.
I have been a member of the Congress of Local and Regional Authorities since 1988. Before that I was a rapporteur for it and I can tell you that in every discussion we have in Strasbourg, we ask ourselves what exactly a region is. In Europe we have a wide variety of second chambers, and a wide diversity of regions. These have to have proper representation.
I need to tell you, by the way, that there has been a small change to our conference programme. Mr de Puig has had to leave us. He will be back in time for lunch. So we are going to change the order of speakers, and Mr de Puig will speak this afternoon.
So now we come to the first item of part two of our round-table discussion, on second chamber election procedures. I am happy to introduce Mr Carlos Closa Montero, member of the Venice Commission and an expert on this subject. Mr Closa Montero.
Introductory report by Mr Carlos CLOSA MONTERO (Spain), member of the Venice Commission, Deputy Director of the Centre for Political and Constitutional Studies, Ministry of the Presidency of the Council of Ministers
The position of Second Chambers in European constitutional design : At some time during the 20th century, the use of Second Chambers seemed to be condemned to a corner of history, since several European countries eliminated them during the first third of the XX th Century (Serbia 1901-1903; 1917 Russia; 1917 Finland; 1926 Portugal; 1928 Albania; 1949 Malta; 1982 Turkey). However, drafters of new constitutions after 1945 have shown themselves kin on having Second Chambers, a path continued also at the end of the XX th Century in new constitutions. Thus, rather than being an extraordinary feature of European political system, it has become a common one: not least than 17 European states have Second Chambers 20 ( * ) There is a certain correspondence between the size of states and having a Second Chamber: generally speaking, large countries do tend to have Second Chambers. In Europe, the largest countries to have a unicameral Parliament are Greece, with 11 million inhabitants, and Portugal, with 10.5 million. Despite this trend, Second Chambers are disputed. Usually, their operative costs and the delays in passing legislation are arguments used against them. In fact, Second Chambers have been suppressed in some European countries (2000 Croatia) and, not surprisingly, a number of Second Chambers have been considered for reform in the last years: the Spanish Senate, the House of Lords, the Irish Seanad and the German Bundesrat .
Composition and election : It is very difficult to identify a pattern and there is an extraordinary heterogeneity of models for selecting the members of Second Chambers. Decision on how to select a Second Chamber is context-dependent and it results from pondering, on the one hand, the functions assigned to the chamber with the historical traditions on institutional representation, on the other hand. Additionally, two other factors have influenced the composition and election procedures of Second Chambers. The first is the powerful trend towards decentralization and regionalization which almost all European countries have adopted with an enormous variety of constitutional modalities (federal, quasi-federal, regional, devolution, decentralization, etc.). A second and very important factor is the domination of the political life of European states by political parties (turning modern states into what the Spanish constitutional lawyer García Pelayo called the «state of parties»). As it is well known, political parties model electoral systems as to maximize their results and even though the opposite also holds true (i.e. electoral systems model party systems), it seems evident for most cases that the calculations of political parties influences the design of election procedures for Second Chambers.
Without aiming at proposing an exhaustive classification (and accepting the imperfection of grouping together countries with substantial variation), there are 6 categories for grouping together election procedures.
1. Direct election by citizens
This is the most numerous category (5 countries) and it contains federal (Switzerland), regionalized (Italy) and unitary (Czech Republic, Poland and Romania) countries. Federal countries' utilization of this procedure may be surprising prima facie , since it could be assumed that component units (regions, states) should elect the chamber for territorial representation. However, the US experience shows how direct election became an unavoidable mechanism for resolving some constitutional inefficacies. Initially, senators were elected in the US by state legislatures. But bribery cases (nine between 1866 and 1906) and deadlocks (45 in 20 states between 1891 and 1905) forced to revise the procedure for nomination and moving towards direct election (17th Amendment, 1913). In Europe, only Switzerland among federal states applies this election procedure.
Being First Chambers directly elected, the application of the same procedure to Second Chambers raises an important issue to be considered: the eventual equal composition of both chambers. Clearly, if the chambers are elected at the same time and by the same subject (for instance, the voters), the only real option for different results is to vary the electoral system which is applied in each chamber. These cases apply different electoral systems for each of the Chambers. One mechanism is changing the electoral formula (i.e. majority); another is a partial renovation of the Second Chamber in several moments; a third is the different duration of mandates, etc.
1.1. Switzerland 21 ( * ) : The Council of States has 46 members who represent the Swiss Cantons. The Cantons of Obwald, Nidwald, Basel-City, Basel-Country, Appenzell Outer Rhodes and Appenzell Inner Rhodes elect one Senator each; the other Cantons elect two Senators. Zurich, which has over 1 million inhabitants, elects two representatives as does Uri (36,000 inhabitants). The electoral legislation of each Canton fixes the method of election, although currently all the State Councillors are elected through a majoritarian system.
1.2. Czech Republic 22 ( * ) : The 81 members of the «Sénat» are elected for six years, every two years one third of them, in one-seat constituencies map through two rounds majority system (the second round is between two candidates with highest number of votes from the first round - if no candidate obtains a 50+% majority in the first round). Candidates to the Senate do not need to be on a political party's ticket (unlike the lower chamber).
Constituencies (81) for the election of the Czech Senate
Source: www.senat.cz/volby/jsv-eng.php
Colours indicate the three different moments for election
1.3. Italy 23 ( * ) : Senators are directly elected by a proportional system, although life senators may exist (currently 7), either former presidents, or those appointed by the president for «outstanding merits» in various fields. The 315 elective seats of the Senate are distributed among the 20 Italian regions in proportion to their population, except for the seats assigned to the Overseas constituency (i.e. Italians living abroad). One seat is assigned to Valle d'Aosta, two to Molise and at least seven seats to each of the other eighteen regions. Seats are assigned on a proportional representation basis and allocated pursuant to the 2006 electoral law. Available seats are assigned to these constituencies proportionally to their population. The lists of party candidates are given beforehand, and citizens cannot state a preference for any given candidate. The law officially recognizes coalitions of parties: to be part of a coalition, a party must sign its official program and indicate a candidate to Prime Minister. There are certain thresholds: a minimum of a 20% for a coalition; a minimum of an 8% for any party not in a coalition; and a minimum of a 3% for any party in a coalition (there is no exception for the first party in a coalition below this threshold). The coalition that wins a plurality in a region is automatically given 55% of the region's seats, if it has not reached that percentage already.
1.4. Poland 24 ( * ) : Senators are directly elected for a four-year term, which under statutorily specified circumstances can be shortened by a presidential or Sejm decision. Senatorial mandates are handed to candidates who have collected the largest number of valid votes cast, in accordance with the majority principle. Every Polish citizen aged 18 or older has the right to vote. Whereas to be elected to the Senate, the candidate must be a Polish citizen aged 30 or older and have the right to vote. 100 senators are elected in accordance with the majority principle. Electoral districts coincide with provinces or parts thereof. From two to four senators are elected from each district. Candidates who receive the largest number of valid votes cast are deemed elected to the Senate. The election is called by the President of the Republic of Poland not later than 90 days prior to the expiry of the four-year period since the beginning of the current Sejm or Senate term. The President sets the Election Day on a work-free day falling within 30 days prior to the expiry of the four-year period since the beginning of the current Sejm or Senate term. Senate and Sejm elections are held on the same day.
1.5. Romania 25 ( * ): Senators are elected by electoral districts (42), on the base of ballot lists and independent candidatures. The number of Deputies and Senators to be elected in each constituency is determined on the basis of the representation norm, by relating the number of inhabitants in each constituency to the representation norm. In a constituency, the number of Deputies cannot be less than four, and that of Senators, less than two. The representation standard for the election of the Senate is one senator for 160,000 inhabitants. The number of inhabitants taken into account is that existing on July 1 of the previous year, published in the Statistical Yearbook of Romania. If, at least five months before the election date, a general census has taken place, the number of inhabitants taken into account is that resulting from the census.
2. Designation by regional organs
Purely speaking, this is the modality that fits better with the federal ideal: the Second Chamber represents to the territorial units that composes the federation (in contrast to the population component of first chamber). In two cases, the pre-eminence of regional units is reinforced for the absence of a free mandate and «block» voting (German Bundesrat ) and the possibility of recall (Russia). However, free mandate exists in Austria. There are three subtypes: election by legislatures (Bosnia-Herzegovina and Austria); election by the regional legislatures and the executives (Russia) and election by the executive (Germany).
Regional legislatures
2.1 Bosnia and Herzegovina 26 ( * ): The principle of representation on the House of Peoples is the equal representation of the three ethnic communities of Bosnia Herzegovina. It comprises 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs). The designated Croat and Bosniac Delegates from the Federation are selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska are selected by the National Assembly of the Republika Srpska. There are special provisions regarding legislative quorum (nine members but provided that at least three Bosniac, three Croat, and three Serb Delegates are present).
2.2 Austria 27 ( * ): The Bundesrat currently has 63 members. They are elected by the legislative bodies of the provinces (the provincial diets) for the duration of their legislative periods (indirect popular election). They do not need to be representatives of the diet by which they are delegated, but must be eligible for election to it. Their election must be in accordance with the principles of proportional representation, and be based on the results of the last election to the provincial diet. As an exception to this principle, the party which achieves the second highest number of popular votes in the election to the provincial diet is allocated at least one seat.
The representatives of the Federal Council are free from all outside influences in exercising their mandates. Like the representatives of the National Council, they hold what are called «free mandates». They cannot be recalled by their provincial diets before the end of that diet's legislative period.
The diets elect a substitute representative for each representative delegated by them to the Federal Council. This substitute becomes the representative's ex lege successor upon the representative's seat becoming vacant due his or her resignation, death or for any other reason. The number of representatives to which each province is entitled is determined by the Federal President after each census, normally every ten years. The province with the largest population has twelve seats. Each of the other provinces has a number of representatives corresponding to the ratio between its population and that of the most populous province, the minimum of seats being three. The Federal Council does not therefore operate according to a legislative period as such, but instead it has been in session continually since 1945.
Regional legislatures and governments
2.3 Russia 28 ( * ) : the Federal Council consists of 168 representatives elected by legislative (representative) state authority bodies of the subjects of Federation or appointed by higher officials of the subjects of Federation (heads of higher executive state authority bodies of the subjects of Federation). Each of the federal subjects of Russia, consisting of 21 republics, 47 oblasts , eight krais , two federal cities, five autonomous okrugs , and one autonomous oblast send two senators to the Council. Term of representatives' commissions is defined by term of commissions of the bodies having elected or appointed them, but the mandates could be withdrawn ahead of time by the above mentioned bodies in accordance with the same procedure, as applied for election (appointment) of members of the Council of Federation.
Candidates to the Council of Federation from legislative (representative) state authority's body of the subject of Federation are proposed by the Chairman of that body or by Chairmen of both chambers in turn, if the legislative (representative) body consists of two chambers. Groups of constituents of not less than 1/3 of the chamber deputies' total number could propose alternative candidates as well. The decision on election of a representative from legislative (representative) body is taken by secret ballot and confirmed by Resolution of the above mentioned body or by joint Resolution passed by both chambers of the two-chamber legislative (representative) body.
Regional governments
2.4 Germany 29 ( * ) : The Bundesrat represents the 16 Federal States ( Länder ) of Germany at the federal level. It is composed of members of state governments; the members are appointed and recalled by the state government. They may be represented by other members of their state government. Only the Minister-Presidents and ministers of the federal states or, in the case of the city states of Berlin, Bremen and Hamburg, the mayors and senators, may be members of the Bundesrat . Secretaries of state are also entitled to be Bundesrat members if they have a seat and a say in the cabinet of their federal state. Membership is based on a decision by the Land government and ends automatically if a member leaves the government or if the Land government decides to recall that member. As each federal state must cast its votes en bloc in the Bundesrat , the individual members are to an extent constrained. Thus, Bundesrat members do not have a free mandate. On the other hand, they are not subject to an imperative mandate. Bundesrat members act on the basis of a uniform line jointly devised in the cabinet.
3. Mixed systems
Mixed systems combine direct election by citizens with the designation from regional assemblies. Two federal or quasi federal states, Belgium and Spain, apply this system.
3.1 Belgium 30 ( * ) : 40 members are directly elected by a proportional system. Two electoral colleges are formed: French and Dutch. There are three constituencies: Flanders (Dutch electoral college), Wallonia (French Electoral College) and Brussels-Halle-Vilvoorde (electors can choose the college). Seats are divided using proportional representation (D'Hondt Method). 25 senators are elected by the Dutch Electoral College and 15 by the French Electoral College. 21 Senators are appointed by Community parliaments: 10 by the Flemish Parliament, 10 by the Parliament of the French Community and 1 by the Parliament of the German-speaking Community; the other seats are distributed using the results of the direct election between the parties that have at least one directly-elected senator, insofar as they have enough seats in, respectively, the Flemish Parliament or the Parliament of the French Community.
10 Senators are co-opted: 6 by the already elected members of the Dutch language group and 4 by the already elected members of the French language group. These seats are distributed between parties using the direct election results. Additionally, there are Senators appointed by right. These are the children of the King who are over 18 years of age or in the absence of children, the Belgian descendants of the branch of the royal family called on to reign. Senators appointed by right are entitled to vote when aged 21; they are not taken into account for the determination of the quorum of attendance. Currently there are two appointed senators (Prince Philip and Princess Astrid). The legislative term is four years.
3.2 Spain : The Spanish «Senado» currently has a total of 259 Senators, elected by a dual procedure. Most of them (208) are elected by provinces; each province elects four Senators, by universal suffrage in a free, equal, direct and secret vote. In the insular provinces, each island or group of islands with a "Cabildo" or insular Council constitutes an electoral district for the purpose of election of Senators. Each of the larger islands (Gran Canaria, Mallorca and Tenerife) elects three Senators and each of the smaller islands or groups of islands (Ibiza-Formentera, Menorca, Fuerteventura, Gomera, Hierro, Lanzarote and La Palma) elects one. Ceuta and Melilla elect two Senators each. Electors may cast their votes to a maximum of three candidates in the peninsula provinces, to two in Gran Canaria, Mallorca, Tenerife, Ceuta and Melilla, and to one in the smaller islands. Those obtaining more votes are elected.
Furthermore, each Self-governing Community appoints one Senator, and an additional Senator for every million inhabitants in their respective territories. This appointment is made by the legislative Assembly or, failing this, by the supreme body of government of the Self-governing Community, in accordance with the provisions of the respective Statutes which shall ensure, in all cases, appropriate proportional representation. The official population census in effect when the last elections to the Senate were held shall serve as the basis for determination of the specific number of Senators that correspond to each Self-governing Community. Today, the Self-governing Communities appoint 51 Senators. Nevertheless, the Permanent Deputation, in its meeting of 16 January 2008, has agreed to increase by 56 the total number of senators appointed by the Self-governing Communities in the IX Legislature 31 ( * ) .
Appointment of these Senators is considered a secondary degree election, in which the only requisite established in the Constitution is that appropriate proportional representation be guaranteed. Each Self-governing Community regulates the electoral procedure in its Statute, Self-governing Act of Standing Orders of the House. The possibility of reforming the Senado (both its election procedure and its legislative functions) has been raised several times by certain political parties during the last years 32 ( * ) .
4. Indirect election
In these cases, intermediate bodies created after election (normally, local communities) provide the constituency for electing representatives in Second Chambers. Countries in which regional assemblies designate members for the Second Chamber (Austria, Belgium, Bosnia Herzegovina and Spain) could be also be considered as cases of indirect election. The difference, though, is that the constituency or Electoral College in these later cases is created automatically (assemblies) whilst in the case of France and the Netherlands, the Electoral College exist only as an ad hoc device for the purpose of selecting Second Chambers.
4.1 France 33 ( * ) : The election procedure was modified in 2003. Senators are elected indirectly by approximately 150,000 local elected officials ( grands électeurs ), including mayors, city councillors, and deputies of the National Assembly. In each department, an electoral college is made up of:
- Members of the National Assembly for the department; members of the department's General Council and members of the Regional Council (which gathers several departments) from the department
- Delegates from municipal councils according to their respective population:
· Municipalities smaller than 9000 inhabitants: between 1 and 15 delegates
· Municipalities between 9.000 and 30.000 inhabitants: the entire municipal council; i.e. between 29 and 69 delegates
· Municipalities over 30.000: an additional delegate for every 1000 inhabitants.
In 2011, 326 senators will be elected in the départements (counties), both those in metropolitan France and overseas, 10 senators will represent France's other overseas territories and 12 senators will represent French citizens living outside France. For that purpose, senators will be split into two series of local constituencies, roughly equal in number. The age required to be elected has been brought down to 30 (instead of 35).
The method of election is a first-past-the-post system with two rounds of voting in the 70 metropolitan and overseas départements which fill three senatorial seats at most. The same system applies in France's other territories overseas. By proportional representation in the 39 metropolitan and overseas départements which fill four or more senatorial seats. The 12 senators who represent French citizens living abroad are elected under a system of proportional representation by the 150 elected members of the Assembly of French Citizens Resident Abroad. From 2011, new elections will be held every three years to renew half the House (not a third as in the pre reform system). For that purpose, senators will be split into two series of local constituencies, roughly equal in number. The term of office will be 6 years (down from 9 years).
4.2 Netherlands 34 ( * ) : The 75 members of the Senate ( Eerste Kamer ) of the Dutch Parliament (the States General) are elected by the members of the twelve Provincial Councils. These elections are indirect: the voters elect the members of the Provincial Councils, who in turn elect the members of the Senate. The criteria for membership are the same as those for the House of Representatives ( Tweede Kamer ) of the Dutch Parliament. Since the 1983 revision of the constitution the Senate has been elected in its entirety every four years by the members of the Provincial Council. The elections take place within three months of the Provincial Council elections.
5. Election by special constituencies
There are systems that privilege the representation of specific sectors of society. The two countries in Europe that can be considerer as using this procedure of election are Ireland and Slovenia and, in both cases, it can be argued that these are small countries and fairly homogeneous. One of the reasons for this model of system is having an input in the legislative process that it is not conditioned or mediated by political parties but by professional expertise which can improve the quality of deliberations. In both cases, however, it seems that the influence of political parties is also felt in the election results. Both cases, though, account for a local (territorial) dimension either as one of the societal interest to be represented (Slovenia) or as the source of electoral colleges (Ireland).
5.1 Ireland : Senators are indirectly elected. The Taoiseach (prime minister) appoints 11 and the so-called «vocational» panels elect 43:
- Cultural and Educational Panel (5) Education, the arts, the Irish language and Irish culture and literature.
- Agricultural Panel (11) Agriculture and the fisheries.
- Labour Panel: (11) Labour (organized or otherwise).
- Industrial and Commercial Panel: (9) Industry and commerce (including engineering and architecture).
- Administrative Panel: (7) Public administration and social services (including the voluntary sector).
Finally, six Senators are elected by the graduates of two universities: 3 by the National University of Ireland and 3 by the University of Dublin (Trinity College).
Candidates must be Irish citizens over the age of 21. Candidates can be nominated by two methods: by Oireachtas members or by nominating bodies. Nominating bodies are organisations that are connected to the particular vocation, for example the Irish Congress of Trades Unions can nominate in the Labour panel, and the Royal Irish Academy can nominate in the Cultural and Education panel.
As the electorate is restricted to elected Councillors, TDs and Senators the political parties have a great influence in the nomination procedures. The main political parties are aware of how many seats they will win after the Dáil election and will endorse candidates that they deem to have a chance of election to the Dáil in the next general election. The nominating bodies tend to nominate party members. Even where non-party candidates get on the ballot paper it is highly unlikely these candidates will be successful.
The Electoral College for the vocational panels is composed of City and County Councillors, members of the new Dáil and members of the outgoing Seanad . The electorate consists of approximately 1,000 voters. Voting is conducted by proportional representation by means of a single transferable vote. However each ballot is given the value of 1,000 to aid the transfer of fractions of votes.
5.2 Slovenia : The National Council was created in 1991 on the model of the Bavarian Senate (which was nevertheless abolished in 1999). The National Council of the Republic of Slovenia is the representative body for social, economic, professional and local interests. It is composed of:
- Representatives of local interests (territorial interests). Local assemblies elect 22 members of the National Council. For this, the municipal council of each municipality appoints a certain number of electors proportionate to the number of inhabitants of the municipality. Each of these may also propose a candidate for the National Council. Electoral bodies elect members by simple majority.
- Representatives of labour and social interests (functional interests) (22). The following sectors elect 4 representatives each: employers, employees and craftsmen, agriculture and liberal professions, 6 representatives of non-economic activities 35 ( * ) .
These sectors compose electoral colleges. Each interest group (chamber, association, society or professional organization functioning at national level etc.) appoints a certain number of electors depending on their size. They may also nominate a candidate for the National Council. Electoral colleges elect by simple majority.
The National Council brings together the interests of various social groups within a single institution. Decisions are adopted on the basis of discussions held at the professional level. In order to preserve a high level of professionalism and keep political interests separate from the workings of the National Council, the legislator decided that members would not hold their office professionally. Members are employed in the social and economic fields represented in the National Council through interest groups, thus allowing them to maintain daily contact with the fields they represent. Mandates last 5 years, one more than the mandate of National Assembly members.
The composition of the National Council is designed to neutralise the influence of political parties, which are involved in legislative processes primarily through the National Assembly. The National Council does not represent all citizens of Slovenia, but only specific social and economic interests. Its position and structure therefore necessitate a specific election system, and one that differs from the system used to elect deputies to the National Assembly. The main differences are in the method of election, the right to vote, the role played by political parties, the system used to assign mandates, and the term of office served.
According to the site of the National Council, indirect elections enable closer ties to be maintained between members of interest groups and their representatives than would be the case with direct elections. It is precisely for this reason that political parties are not specifically represented in the elections, although the workings of the National Council are not entirely free of political influence. Political parties exert greatest influence through those members representing local interests. They are elected by local community representative bodies. These bodies are formed as a result of general elections - in which, of course, political parties play a decisive role. Political parties exert much less influence over representatives of so-called 'functional' interests than they do over representatives of local interests.
6. Designed and inherited membership
6.1 United Kingdom : (until 1999): Membership in the House of Lords was limited to Hereditary Peers until 1958. These could transmit membership to their descendents. In 1958, the Life Peerage Act authorised the creation of Life Baronies (i.e. restricted to the incumbent) without fixing any cap. The number of Life Peers increased substantially. The Labour Party, who has committed itself during much of the 20th century to the abolition of the House of Lords, passed in 1999 a reform that targeted mainly the elimination of Hereditary Peerage. The 1999 House of Lords Act limited to 92 the number of hereditary peers allowed to remain in the Chamber. These were elected by their colleagues according to the rules set for this purpose. As part of this movement in favour of reform, the Labour government also created an independent Appointments Commission (3 non party members and 3 party members) whose task is: a) to make recommendations for non partisan political peers (i.e. people's peers); and b) to investigate the suitability of all nominees for peerages. In March 2007, the House of Commons voted in favour of a wholly elected chamber but the House of Lords rejected this decision and voted instead in favour of a wholly appointed chamber.
Members of the House of Lords by party and type of peerage 36 ( * )
NB - Excludes 15 peers who are on leave of absence.
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Concluding remarks
As it was mentioned, systems for electing Second Chambers vary greatly among European states. Six main procedures were identified, although there are not two equal cases even within each category. Territory, either regional and/or local level, plays always a role, even though the meaning of this role varies greatly. Other characteristics of the composition of the chamber need to be taken into account. These are the duration of the mandate in relation to the first chamber, the existence of procedures for partial renovation of the chamber, the age requirements, part-time or non-professional dedication required, etc.
Mr Halvdan SKARD
Thank you, Mr Closa Montero. May I just repeat, for the benefit of latecomers, that Mr de Puig will not be presenting his paper until after lunch. I now hand over to Mr Karsten Behr, Chair of the Institutional Committee of the Chamber of Regions of the Congress of Local and Regional Authorities.
Mr Karsten BEHR (Germany), Chair of the Institutional Committee of the Chamber of Regions of the Congress of Local and Regional Authorities of the Council of Europe, member of the Parliament of Lower Saxony
Thank you, Mr Chair. Ladies and gentlemen,
The essential issue we are debating at our conference is whether second chambers are a suitable and effective instrument for upholding and representing regional interests at national level. As far as the second chamber of the Federal Republic of Germany is concerned, the answer is yes. The Bundesrat is an effective forum for upholding the interests of the Länder , the federal states. But its effectiveness varies according to how the Länder behave and how they make use of the right afforded to them.
Allow me to describe a few specific aspects of the Bundesrat 's workings and procedures. It is the Länder and not local authorities that are represented in the Bundesrat , whilst the interests of local territorial units are looked after by the Länder . Their areas of competence range from legislation to federal administration and European affairs.
Firstly the Bundesrat has a say in all decisions concerning the Federation, all federal laws, federal administration and European matters. It can also put forward its own proposals and adopt certain positions on documents of relevance to the European Union and international treaties. It can pronounce on matters concerning federal officers and their organisation. But the Bundesrat 's overall right to a say in decision-making does not mean that its opinion takes precedence over others. On the contrary, given the complexity of the machinery for sharing responsibilities and legislative power set out in the German Constitution (Basic Law, Article 77), the rights of the Bundesrat are particularly protected in the case of laws requiring its explicit assent. There are not many of these, but they cannot be adopted without the Bundesrat 's assent.
First of all, let us look at the Bundesrat 's role in federal law-making. Is its contribution confined to a number of specific issues, the limits of which are well defined by law and which concern the Länder alone, or does it have a more general say in decisions pertinent to other areas?
Article 50 of the Constitution says very clearly that the Länder "participate through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union." All this tends to make us think of the Bundesrat as a true decision-making instrument. A case in point is that of laws needing implicit approval. If the Bundesrat opposes their approval it may appeal to a conciliation body and ask for a verification procedure. But this mediation process cannot be employed if the Bundesrat is outvoted by the Bundestag . However, account always needs to be taken of the outcome in this procedural area.
Who is represented in the Bundesrat ? What are the organs and who are the people representing the Länder ? And does it provide representation along the traditional lines of parliamentary representation? For an answer to these questions let us go back to Article 51 of the Constitution, which says that the Bundesrat consists "of members of the Land governments, which appoint and recall them. [...] Each Land may appoint as many members as it has votes."
The number of votes in the Bundesrat is disproportionate and favours the less populous Länder . The most populous Länder are less well served. For example, the smallest Land , Bremen, with a population of only 700 000, has three votes and the biggest, North-Rhine Westphalia, with a population of 18 million, has only six votes. So a Land may be represented in the Bundesrat by six members of the government at most, the number which my own state of Lower Saxony has.
The Basic Law defers to the constitutions of the Länder when it comes to appointing members of the Land governments to sit in the Bundesrat . In the case of Lower Saxony, the Land prime minister is elected by the Landtag , or state parliament, by a majority of members, without debate and by secret ballot. Thus the Land parliament appoints its own prime minister, who then appoints the other members of the Land government. The Land government becomes official once it is endorsed by the Landtag . After that happens the Land government then takes a simple decision on who will represent it in the Bundesrat .
Regarding voting procedure, the Constitution rules that each Land may vote in the Bundesrat . Voting must be unified. Votes may not be split, even though most of the time the Länder legislate as coalitions. The principle was infringed in 2002: the bone of contention was the law on immigration. A prime minister and interior minister had voted differently on this law. The Constitutional Court held that this situation was unlawful and that any vote cast by a Land which was not a unified bloc vote must be deemed null and void.
One peculiarity of the German system is that the Länder are represented in the Bundesrat by members of the government. We do not have a set-up on the model of the French, Spanish or US senate.
What are the rules governing this specifically German system? The explanation lies in the country's history. The Reichstag , which lasted till 1806, and the Bundestag of the previous generation, which lasted till 1886, were both congresses representing the German states. They were bodies representing the executive. The Weimar Constitution made provision for a Reichsrat , made up of members of the Länder governments. The People's Council of 1949 had voted for this solution and against the creation of a senate.
The special German situation is also explained by the participation process which is very favourable to the executive. But the representatives in the Bundesrat regularly receive mandates from their respective state parliaments. So they have direct democratic legitimacy.
In fact, to be honest, the main problem is that other forms of composition of the Bundesrat would upset the balance of power. The system of both federal and regional government would be far more complex than it is today and that situation is unimaginable. The Bundesrat in its present form has been in existence since 1949 and survived the reunification of Germany in 1990. So it has stood the test of time.
But why do the Länder participate in federal affairs? Article 20 of the Constitution and its concept of the federal state include interests for which both levels are responsible. Participation of the Länder is thus needed for all decisions pertaining to the Federation's future. Legislative power, however, is divided among different tiers of government in such a way that exercise of power by the Federation always has primacy over that of other tiers. This is especially visible in areas of competence where the tiers of government have concurrent legislative powers, as described in Article 74 of the Constitution. By way of example, civil law and human artificial insemination are matters to which concurrent legislative powers extend but in which federal power has taken precedence. The Bundesrat must after all have an opportunity to take part in decision-making by giving its opinion.
As far as matters pertaining to the European Union are concerned, it is required to participate, notably under the Maastricht Treaty. Article 23 of the Constitution refers to European affairs, stipulating that the Federation and the Länder will both participate in the implementation of laws relevant to the EU and its harmonisation.
On administrative matters, with one or two exceptions such as the federal police and employment offices, there is virtually no lower tier of decentralised federal administration. Federal laws are implemented by the authorities of the Länder . This power to implement federal laws is a power exclusive to the Länder . So at Land or municipal level there is generally no representation of any federal authority.
Since the federal level has the main responsibility for legislation, this is balanced out by giving the Länder primacy in everything to do with administrative matters. This naturally works to the advantage of self-government by the Länder . I am thinking of the policies for recruiting public servants. For example, the Land of Lower Saxony has 220 000 public servants and other staff for a population of 8 million. The set-up is organised in such a way that affairs can be administered as efficiently as possible and the policies of a region can be carried out properly. The structure of government is also very strong: the Länder can thus optimise a number of administrative tasks and they have broad scope for action at municipal level.
This meshing of administrative and legislative bodies in Germany, organised on two levels, has numerous effects. The burden of responsibilities is shared amongst a large number of players. The Federation and the Bundesrat bring together the Länder for all decision-making, and this has many advantages. Germany has a culture of participation which allows everyone to argue his or her point of view. Choices are increasingly explained and substantiated. The channels of communication work very well in both directions.
Moreover, the prime ministers of the Länder operate in two different political spheres. They are represented in the federal councils of their party and also in the Bundesrat as a federal legislative body . Their field of action is thus broad, and this gives them a ready platform for their ideas and proposals. As members of the Bundesrat they can also speak in the Bundestag . At least a third of a Land prime minister's workload is devoted to federal matters, which explains the function of Land representation offices and the cost of maintaining Land buildings in Berlin and Brussels.
Policy is very often forged in the 69-member Bundesrat , where 35 votes are needed for a majority. And this is the forum in which all the Länder together and as individual regions meet. For years this has meant that the system always works smoothly. We also have a very well organised data management system. The example of German reunification is eloquent testimony to that. The constant aim is to make our set-up more efficient. But in recent years there have been a lot of problems. These arose at federal level and directly concerned the Bundesrat . They have been resolved, however.
Is the Bundesrat a successful model or do we need to change the way it works?
Despite the many benefits of the Bundesrat 's powers and organisation, it has a number of shortcomings. Should the scope of its participation be limited, particularly in European matters? That might, in some respects, be a good idea. Because "those who can do more can do less". And then the meshing of different levels makes it difficult to know who is responsible for what. And some of the limitations can become apparent. German politics has shown, since 1998, that deadlock can occur, notably when Bundestag and Bundesrat have different majorities: which is what happened over proposals to modify federalism in the country. A Commission was set up in 2003 to work on the subject.
Since then, greater attention has been paid to speeding up the decision-making process. In other words we are seeking to review the concept of federalism in Germany and this seems to be an undertaking of major importance. The proposed reform will be in two stages: the first stage began in 2006 with a number of stated objectives. We hope to improve the distribution of powers so that the role of each level is clearly defined. Better transparency and clarity are needed too, concerning the cost of law enforcement to Germany's people and economy. Lastly, responsibility and public scrutiny must be more "open", so that we know who has responsibility for which individual measures, political and economic.
There is also a need to clarify the respective legislative responsibilities of the Federation and the Länder . The scope of the Bundesrat 's participation will be reduced and the legislative procedure shortened: the Bundesrat 's limited power of veto will be reduced. The Länder will also have more flexibility and autonomy in relation to the federal level. Lastly, the financial relationships between Bund and Länder will be clarified and there will be greater opportunities for co-operation by Bund and Länder at European Union level.
On 7 July 2006 the Bundestag accepted these proposals, with 23 new proposed amendments to the Constitution and 22 articles concerning details of ordinary law. After the federal reform, Federation and Länder decided to begin a second stage of reform, to be completed by 2009. This second stage has a large number of objectives. The focus will be on better oversight of indebtedness and improving public finances.
Some bodies will be abolished, with an eye to a type of federalism which puts more emphasis than ever on the idea of competition amongst the federal units. Efforts will be made to reduce excessive bureaucracy and make the system more efficient.
To sum up, the reform plan, under way since 2006, has shown clearly that participation by the Länder in the Bundesrat is an effective way of ensuring that their interests are safeguarded at federal level. Excellent results can be obtained through powerful alliances in Berlin. This is a rather unusual characteristic of German political life. But opinion is somewhat divided. Some think that we should revert to a more normal system of alliances, with groupings that are less huge. The proportional majority in Germany is influenced by voting swings in the Länder . This parameter tends to complicate the situation when it comes to large-scale projects.
One party gets all the benefits of having the Bundesrat controlled by different majorities: that is the very principle of the German Federation. Like the Bundesrat , the Federation is an excellent instrument for safeguarding the interests of the Länder . But differences of opinion among the various Länder and their reduced participation are likely to generate a lot of debate in the future. Use will have to be made here of the tools available. I hope I have been clear and given you a good account of the key ideas behind the workings of the Bundesrat . Thank you, ladies and gentlemen.
Mr Halvdan SKARD
Thank you. I hand over now to the representative from the Netherlands.
Mr Geert Jan HAMILTON (Netherlands), Secretary General of the Dutch Senate
I am honoured by this opportunity to outline the system of voting in elections to the Dutch Senate and the role of the provinces in our country. The Dutch parliament is known as the "States-General of the Netherlands". It consists of two chambers: the First Chamber or Senate, and the Second Chamber. Although our conference is concerned with the role of second chambers, I shall be talking about the Dutch First Chamber, which is our upper house. That is the way our Constitution has ordered matters.
Let me start with a brief look back at history. Regionalism is nothing new in Europe. Dutch parliamentary history goes back to the 15th century. At that time the Low Countries were made up of duchies, counties, bishoprics and other independent sovereign entities. These provinces, more or less self-governing regions, occupied the area which is now Belgium, Luxembourg, northern France and the present-day Netherlands. From the 15th to the 16th century they were ruled by the Duke of Burgundy.
The States-General of the Netherlands were an assembly of the Provincial States. They were initially convened by the Duke of Burgundy, either to ascertain his subjects' views on something or to formalise a decision, especially on taxes. The first meeting was in Bruges, in the county of Flanders, on 9 January 1464. Later, there would usually be 16 or 17 delegations present. The expression which became current was that of "the 17 provinces", and these came under the rule of the emperor Charles V in the 16th century. Unlike the French States-General, the Dutch assembly was not an ad hoc body but had a permanent base in Brussels. It continued to meet throughout the reigns of Charlemagne and his son Philip II of Spain.
In 1568 a number of provinces, led by William of Orange, or William the Silent, rebelled against the King's governor in Brussels in protest at attempts at centralisation, high taxes and the persecution of the Protestants. This uprising marked the start of the 80-years war (1568-1648). 1581 saw the birth of the Republic in seven provinces of the Netherlands. For these the 17th century is regarded as the golden age of the Republic of the United Provinces. The country was then the head of a powerful colonial and trading empire. Its cities drew adventurers and artisans from all over Europe. The United Provinces' reputation for tolerance and freedom made them a leading intellectual and cultural centre.
The Republic of the United Provinces lasted till the end of the 18th century, France's golden age. A Batavian Republic was then declared, under the influence of the French example. This subsequently became the Kingdom of Holland, before being absorbed into the French empire under Napoleon. The French armies were driven out in 1813 and William I was crowned King of the Netherlands in 1815. The kingdom of the Netherlands was thus founded by the Congress of Vienna in 1815 under the name "United Kingdom of the Netherlands".
Later, in 1830, the present-day Netherlands and Belgium separated. The 1815 Constitution, modelled rather on that of the Batavian Republic, introduced legislation setting up two chambers. Thus began the "States-General of the Kingdom of the Netherlands". This old name was kept for the modern-day parliament. The House of Representatives, or second chamber of the States-General is the Tweede Kamer : this is the lower house of the Dutch parliament. It has 150 members, chosen in general elections held every 4 years. The First Chamber, the upper house, has 75 members elected by indirect universal suffrage by the 12 provinces of the Kingdom, for a 4-year term. As in Switzerland, our senators also perform other functions, so their role as senators is not a full-time one. No significant expense is involved, as there is a staff of only 50 civil servants. So second chambers are not expensive everywhere.
Moreover, the role of the upper house in voting through laws is less extensive than that of the lower house. Draft laws are sent to it after being passed by the lower house. The First Chamber cannot amend texts, merely approve or reject them. It does, however, have an important right of veto. The Chamber often manages to make its approval of a law conditional on certain promises which the government must keep. Senators thus pay scrupulous attention to the expressed wishes of the regions, provinces and municipalities. When the First Chamber judges a law, it looks at its quality and workability. On the European front, where our senators are demonstrably effective, the upper house has the same powers as the lower house.
The modern state of the Netherlands has 12 provinces, the newest of which is Flevoland, created in 1886. This new province has a population of 375 000. The 12 provinces are the interface between the State and the local authorities, the municipalities. They handle matters which are too small for the State and too big for the municipalities. Their main areas of responsibility and action are spatial planning, transport, the economy, agriculture, the environment leisure, nature and countryside management, welfare, culture, administrative organisation, supervision of the water boards and municipal finances. Good nature management is regarded as essential in such a densely populated country.
The "Provincial States" are the deliberative assembly of a Dutch province. As such they are the chief institution of this territorial administrative unit. Members of the provincial assemblies serve a four-year term. The number of members varies according to the size of the province, between 34 and 55. Members are elected by direct universal suffrage by residents of the province who are eligible to vote.
In the Netherlands, senators are not elected by direct universal suffrage but by the deliberative assemblies of the various provinces, the Provincial States. But provincial elections are extremely important in the political life of the nation. Since the 75 senators are not directly elected they stand apart from everyday political life and do not campaign for election. They do campaign in provincial elections, but not for seats in the upper house.
The electoral system in the Netherlands uses proportional representation. Thus, the seats to be divided amongst the party lists depend on the number of votes obtained by the lists nationwide. So a list that obtains 10% of the vote is entitled to 10% of the seats. In practice, the role of the political parties is crucial in elections. This role is less pronounced in the Dutch Elections Act, which says that lists of candidates must be submitted by individuals. But it allows parties to include the party name at the top of lists of candidates. Parties may even submit more than one list, depending on the constituency. But this option is little used in elections to the upper house.
All members of the Provincial States vote for one of the candidates for a seat in the upper house. So we have a college of 564 voters for 75 seats. But the votes of the members of provincial deliberative assemblies do not all carry the same electoral weight. The Dutch voting system applies a system of weightings based on population numbers in the various provinces. So the vote cast by a member of the assembly in a populous province such as Noord-Holland or Zuid-Holland carries far more electoral weight than another.
The Dutch electoral rules do not provide for elected senators to represent the regions. They are elected by the provincial voters but do not represent the provinces. Candidates are placed on lists. It is important to note that the political parties recommend that members of the provincial deliberative assemblies vote for the top of the list. This procedure makes for a fair distribution by age, sex, expertise and region. It also reflects the vision of the party itself when it drew up the list.
The parties thus ensure that the regions are equally represented on the lists. But when certain voters cast preferential votes, there is a danger that the regional balance of candidates may be upset. In the latest elections, for example, some senators were elected by preferential votes. They did not give up their seats, and this led to problems in some provinces. In these latest elections a Socialist senator elected by preferential votes refused to give up his seat. Disowned by his party, he formed his own one-man independent "group" in the Senate.
Such are the difficulties with elections to the First Chamber. But I think a lot of people in our country, and especially members of the lower house, acknowledge the contribution that the First Chamber makes to our system.
In the Netherlands, like everywhere else, there is currently an ongoing debate as to whether the First Chamber should be retained. Some parties have made abolition of the upper house a part of their policy manifesto. But it is fairly certain that when we celebrate the 200th anniversary of our modern parliament in 2015, it will still be a bicameral institution.
I have endeavoured to set out for you the political situation of the Netherlands, and more especially the shift from a federal republic, with the provinces represented as such in the States-General, to a unitary state with a bicameral parliamentary system. Whilst the provinces are no longer represented as such in the Dutch Parliament, it is nevertheless true that they continue to play an undeniable role, since the members of their deliberative assemblies are voters who decide who sits in the upper house of the national parliament. I doubt that the Dutch system could be used as a model for the member states of the European Union. It has been shaped too much by Dutch institutional history and the small size of the country. But in matters of institutional reform it is always good to be aware of models which have proved their worth elsewhere. I have learned a lot about the subject at today's conference.
Thank you, ladies and gentlemen.
Mr Halvdan SKARD
Thank you, Mr Hamilton.
We shall now adjourn for lunch. Are there any questions? You will also be able to ask questions after lunch.
I shall ask Mr Mildon to resume at 2 pm. He will be our chair for the afternoon.
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* 20 Since Belarus is not a member of the Council of Europe and it is generally considered a non democratic country, it is not included in this survey. The Council of the Republic consists of 64 members. The procedure of forming the Council of the Republic combines elements of election and appointment. Eight members of the Council of the Republic are appointed by the President of the Republic of Belarus and the remaining members are elected by secret vote: eight members of the Council of the Republic are elected from each of the country's region and Minsk City at sessions of local Soviets of Deputies of the basic level. A citizen of the Republic of Belarus aged 30 and more, who has lived on the territory of the respective region or Minsk City for at least five years may be a member of the Council of the Republic. Information from the website of the Council of the Republic of Belarus:
www.sovrep.gov.by/index_eng.php/.444....1.0.0.html
* 21 Information from the website of the Council of States of Switzerland:
www.parlament.ch/e/dokumentation/wahlen-2007/wa-sr-staenderatswahlen/Pages/index.aspx
* 22 Information from the website of the Senate of Czech Republic:
www.senat.cz/volby/jsv-eng.php
* 23 Information from the website of the Senate of Italy:
www.senato.it/english/business/28033/28040/genpagina.htm
* 24 Information from the website of the Senate of Poland:
www.senat.gov.pl/k7eng/historia/nota14a.htm
* 25 Information from the website of the Senate of Romania:
www.senat.ro/PaginaPrincipala.aspx
* 26 Bosnia and Herzegovina's Constitution, art IV. Available at:
* 27 Information from the website of the Austrian Bundesrat :
www.parlinkom.gv.at/EN/AP/PA/PAHEUTE/BR/show.psp
* 28 Information from the website of the Council of Federation of the Federal Assembly of the Russian Federation: www.council.gov.ru/eng/info/status/index.html
* 29 Information from the website of Germany's Bundesrat :
www.bundesrat.de/nn_11400/EN/organisation-en/mitglieder-en/mitglieder-en-inhalt.html
* 30 Information from the website of the Senate of Belgium:
www.senate.be/english/SenateCompoEN.html
* 31 Information from the website of the Senate of Spain:
www.senado.es/legis8/senadores/index_i.html
* 32 For an overview of the topic, see Aja, Eliseo; Albertí Rovira, Enoch; Ruíz Ruíz Juán José (2005) La reforma constitucional del Senado , Madrid, Centro de Estudios Políticos y Constitucionales. See also the corresponding studies on the reform of the Senate in Francisco Rubio LLorente y José Álvarez Junco ; Eliseo Aja... [et al.] El informe del Consejo de Estado sobre la reforma constitucional : texto del informe y debates académicos Madrid : Consejo de Estado : Centro de Estudios Políticos y Constitucionales, 2006
* 33 Information from the website of the Senate of France:
www.senat.fr/lng/en/election_senateurs.html
* 34 Information from the website of the Netherlands' Eerste kamer : www.eerstekamer.nl
* 35 Information from the website of the National Council of Slovenia: www.ds-rs.si/en/
* 36 1 February 2008
Source: House of Lords www.parliament.uk/directories/house_of_lords_information_office/analysis_by_composition.cfm