and representation of local authorities
I. MINUTES OF THE DEBATES ON « senates and representation of local authorities »
Mr Christian Poncelet, President of the Senate of the French Republic :
As you know, we have chosen to devote our work to the subject of representation of local communities by our Assemblies.
This topic is the very foundation of the institutional and political legitimacy of our assemblies and, quite apart from the great diversity of second chambers, it is the core function of all Senates.
Far from being anomalous, the French Senate has the constructive attribute of being a parliamentary assembly in its own right, as well as exercising a role as representative of local authorities. This is a constitutional bonus.
As a parliamentary assembly in its own right, the Senate undertakes its legislative duties on an equal footing with the National Assembly, and will exercise its scrutinising role as an equal participant in a bicameral structure until such time as the Government sees fit.
In addition to its role as a parliamentary assembly, the Senate was vested, by Article 24 of the French Constitution, with the power to represent local authorities. As the mouthpiece of these local authorities, the Senate has thus logically become the natural, preferred defender of local communities.
I shall first of all show you, therefore, how the method of electing our Senators, which is triply original, makes our assembly the mouthpiece of the local authorities.
The first unique feature is that the great majority of our Senators is elected in the French départements, the « spiritual sons » of the French Revolution, one of our great "French exceptions" since they provide an intermediate level between the traditional local level and the regional level which is still to come.
Thus, of the 321 members of our Senate, 304 are elected in the framework of the metropolitan and overseas territories (New Caledonia, French Polynesia, Wallis and Futuna), and 2 in local authorities with special status (Mayotte and Saint-Pierre-and-Miquelon). Furthermore, the two million French citizens living abroad elect twelve Senators by means of their delegates.
The second original feature is that Senators are elected by elected officials.
In each département, the Senators are elected by an electoral college itself elected by direct universal suffrage, composed of the département' deputies, the regional councillors elected in the département, the members of the département general council, and, above all, by the representatives from town councils, the number of whom varies depending on the size of the population in the town concerned.
All in all, almost 96% of the electoral college for Senators, the total number of members of which is some 145.000 great electors, is composed of town councillors, those « germ cells of democracy ».
It is clear that the Senate is totally immersed in local life because of its method of election.
Finally, the third and last originality of the method of electing Senators in france, is that there is a twofold election system. Senators are elected, according to the number of seats in each département, by majority vote in the small départements with one or two seats, and by proportional representation in the larger ones.
The result is that 70% of Senators are elected by proportional representation, which, combined with alternating parity, should put an end to quarrels as to representativeness, and therefore also to the sometimes justified arguments that the Senate is not a legitimate institution.
However, it must be acknowledged that this method of electing Senators has resulted in over-representation of rural France to the detriment of urban France.
This imbalance shows, first, in over-representation of the small rural localities within the Senate electoral college, and second, by the distribution of Senate seats among the départements, which, because there has been no "demographic reshuffle" since 1976, disadvantages the "urban départements", in which population has increased.
To deal first with the question of representation of districts in the Senate electoral college, it must be admitted that in a locality of 1,000 inhabitants, one Senate elector represents 333 inhabitants whereas in Paris, he or she represents 950.
Another illustration of this imbalance in favour of rural localities is that 33,000 districts or towns of 2,500 inhabitants are represented by 45 % of local delegates in the Senate electoral college, despite the fact that they represent only 30 % of the population.
It is clear that this situation must be rectified and urban districts must be given more weight, while at the same time not skimping the representation of the small and medium sized towns which constitute the economic, social and human fabric of our country.
However, the means of achieving this indispensable reform has become fraught with difficulty since the decision handed down by the French Conseil Constitutionnel on July 6 2000, censuring the law abolishing the link between the number of town councillors in a locality and that of its Senate delegates, and substituting a single demographic key: one Senate elector for 300 inhabitants.
In its decision, the Conseil Constitutionnel drew two clear, logical and inescapable conclusions from this principle, as well as ringingly re-asserting that « The task of the Senate is to represent the local authorities of the Republic »:
the first conclusion was that « all categories of local authority » should be represented in the electoral college for the Senate, which must« reflect their diversity » ;
the second is that the members of the Senate electorate « must be chosen from » the local authorities and, « it follows that this electorate must be composed for the most part of members of the deliberating assemblies of the local authorities », and not of additional delegates chosen from outside the town council.
The latter must participate in the electoral college purely for the purpose of correcting the demographic imbalance.
Therefore, the only reform which would increase the weight of towns in the Senate electoral college, but not "borrowing from Peter to pay off Paul", that is, without reducing the representation of the small and medium-sized towns, is to follow the proposal made by the Senate in 1999 countering the Government bill.
The idea was to keep things as they stood for towns under 9,000 inhabitants and, beyond this number of inhabitants, to provide that delegates would be chosen in the ratio of one per 700 inhabitants, in addition to the town councillors who elect Senators as of right.
It will probably be necessary to raise this number of inhabitants per additional delegate from 700 to 1,000 if the disapproval of the Constitutional Council is to be avoided. It might result in too many Senate delegates who were not elected officers.
As regards the distribution of Senate seats among the départements, the situation as it stands is a poor reflection of France's demographic evolution and thus, less populated départements are better represented - these being the rural ones.
This is because since 1976, the distribution key, which was instituted in 1948 and provided that each département would have one Senate seat per 150,000 inhabitants and an additional one for every 250,000 (or fraction thereof) inhabitants beyond this number, has not been applied.
Thus, the Creuse département has two Senate seats for 124,500 inhabitants, i.e. one seat per 62,250 inhabitants, while the Var département only has three for almost 900,000 inhabitants, that is one seat per 300,000 inhabitants.
To correct this imbalance which favours the less-populated départements, that is the rural ones, there are two possible solutions:
the first, which would require an organic law, would be to increase the number of seats to limit the impact of this new distribution in terms of loss of seats, in the départements where the population has relatively or absolutely fallen. The Senate refused this solution, holding that public opinion would not accept an increase in the number of Senate members.
The second solution, which would need an ordinary organic law, would entail a new distribution of the seats among the départements with steady population figures, thus allowing the redistribution of seats among the départements to occur at random, with no "buffer" measures.
For all these issues, the Senate must determine, and itself set in train, the changes needed to rectify this imbalance.
As the means of expression of local authorities and as the representation thereof, the French Senate has thus quite naturally become the defender of those local authorities. This will be the second part of my speech.
« The Great Council of French Towns », the expression used by Gambetta in his Belleville speech in 1875, the Senate has been strengthened by decentralisation and can thus better play its role as the defender of local authorities. It has two ways of doing this.
First of all, the Senate has claimed the role of protector of local independence, in both its legislative and scrutinising activities.
Thus the Senate has gradually built up a body of jurisprudence on which to base its scrutiny of laws relating to local authorities, which is far above party political differences.
Basically, this jurisprudence provides for the promotion and defence of local autonomy, which must be upheld by elected officers with a true role to play, and local authorities with the means to implement the policy decided by their deliberating assemblies.
Furthermore, in exercising scrutiny, the Senate has tended to become the watchdog of decentralisation, which it deems to be a beneficial reform insofar as it gives free rein to local initiative and action, as well as rendering public action more efficient and contributing to the development of local democracy.
Even more than this, the Senate considers that this reform is incomplete, and a Senate working group recently submitted detailed proposals for "decentralisation Act II".
This duty to stimulate the Government into action should no doubt be pursued further, by creating a permanent Senate Observatory on decentralisation, which could draw up annual reports on the stage of decentralisation and regional development.
Secondly, the Senate has for the past two and a half years endeavoured to fulfil a role as a home for local authorities.
This idea of proximity is being achieved first by organising the States General of local elected officials which I hold in each region.
The next session of these States General, to be held in Marseille on June 15, will discuss precise topics such as legal security, joint action between districts, finance, water etc. We prepare them by sending out a questionnaire so that local officers can show what concerns them at a given time.
Far from being merely "Republican High Masses" with no concrete outcome, these States General purport to arrive at legislative solutions.
Thus, the Lille States General in September 1999 resulted in the Fauchon Law dated July 10, 2000, on liability of State and private decision makers in unpremeditated offences.
Similarly, the States General gave rise to a bill recently passed by the Senate, the purpose of which is to confer a status worthy of the name on locally elected officers.
The third illustration of this approach is the Senate's adoption of the bill for a Constitutional law, which I signed jointly with the Senators who preside over the main local authority associations and the president of the local finance committee, on free administration of local authorities and their fiscal and financial autonomy.
On this occasion we proposed that the Senate be vested with specific powers in the matter of bills on local authorities, and more precisely, that equal bicameralism be set up in this field.
But make no mistake - this does not mean amputating the Senate of its dimension as a parliamentary assembly in its own right, and cutting it down to the level of a chamber specialised in local affairs, a kind of« Bundesrat à la française », as Michel Rocard put it.
On the contrary, it means preserving our role as a parliamentary assembly while at the same time allowing us to benefit fully from our constitutional bonus as representative of local authorities.
In addition, the Senate has, since 1998, implemented a policy of offering volunteer services to local authorities, with the creation of a Senate local authorities department, a special Web site reserved for locally elected officers ("Local Authority Forum") and the making available of the Brussels Senate information Service to local authorities to help them gain access to European structural funds.
The most striking symbol of this re-found proximity with locally elected officers was without a doubt the Feast of the Federation, or the Mayors' Feast day, on July 14 2000, at which 13,000 mayors, proudly decorated with their tricolour sashes, gathered with the Senators on the Champs Elysées in Paris and afterwards in the gardens of the Senate.
It is clear that our Senates, most of which represent local authorities in one way or another, must cultivate this special aspect which is in fact their strength. It is certainly what I myself wish for the French Senate.
In this regard, I take this opportunity to state solemnly that we will do our utmost to persuade France to ratify the European Charter for Local Autonomy, which, as you know, has been signed by 38 out of the 43 member countries in the Council of Europe and ratified by 34 of them.
The four countries which have signed but not yet ratified this charter are France, Armenia, Belgium and Ireland. I shall therefore endeavour to persuade France to ratify it as soon as possible.
Thus, Ladies and Gentlemen, as you have seen, the salient features of the French Senate are that it is a parliamentary assembly in its own right, and also the home of local authorities. These special features must be preserved at all costs, and indeed reinforced, because they constitute the true raison d'être of bicameralism.
It is also our ambition to proclaim our difference and to make the Senate more "popular" in the noble sense of the word, thus bringing to the notice of our fellow citizens the fact that bicameralism is a great opportunity for democracy.
Mr Petr Pithart, President of the Czech Senate :
At our last meeting, I did not have the opportunity to present the Czech Senate, which is the youngest in the world. I will therefore do so today. The Senate was created in the Czech Republic as an essential ingredient in the separation of power and system of checks and balances. It also plays a role in internal parliamentary scrutiny and safeguards institutional stability. It is not directly related to territorial autonomy. However, it endeavours to provide a meeting place where leading edge policies, initiatives by the civil society and expert knowledge can mingle.
The Czech Senate does not represent particular interests in society and is among the minority of upper chambers in the world. Most of them are, it is true, associated in one form or another with the representation of interests which differ from those of all the citizens. More specifically, they are mostly chambers for territorial representation, in either federations or decentralised single States. Professional, religious, ethnic or linguistic groups can also be observed in upper chambers.
The Czech constitution provided nothing of this sort for the Czech Senate. Although in 1992, when it was created, a regional and territorial base was planned, on the recommendation of the President of the Republic Vaclav Havel, in the end the Senate was established on the traditional Czech model from between the wars, that is, with the horizontal separation of powers that had been used for 250 years. At the time, the first Czech Republic did not make the best use of this bicameral system. The Chambers of the Parliament were elected in the same way and at the same time: party discipline was exceptional and essential political decisions were frequently made outside the Parliament, so much so that the Senate could not exercise its right of scrutiny. The bicameral Parliament was abolished shortly after the country was occupied in 1939, to be restored in 1968 when Czechoslovakia became a federation.
For the next twenty-three years, the Federal Assembly was composed of two chambers, the People's Chamber and the Chamber of Nations, but bicameralism could not fully develop, first because the Czech Communist Party held the monopoly, and second, because of the practice of holding common sessions of the two chambers. The Federal Assembly was thus threatened with paralysis from the outset, due to the disputes arising from the separation of power between the Federation and the national Republic.
Between 1990 and 1992, the historical experience of Czechoslovakia threw new light on the maxims of Charles de Montesquieu and his successors. This situation was due not only to the totalitarian system but also to the events preceding it. The principles of separation of powers and checks and balances had already almost succumbed in the face of concentrated powers in the hands of a relatively small group of party leaders during the first democratic Republic of between the wars.
This situation also occurred in the years between 1945 and 1948, with limited party politics. At the time, the four authorised political parties were associated, with the Czech Communist Party dominating. Neither the bicameral parliament nor the Constitutional Court were re-elected. This also occurred in Spain, with the disappearance of the upper chamber under the authoritarian régime. That is why I consider bicameralism to be a factor of stability in institutions and political systems, especially for post-totalitarian societies in which it is very tempting, for a time, to return to an authoritarian régime.
In every country where there is no liberal tradition, where civil society has not been developed, there is this risk of slipping back into a form of non-liberal democracy. Some regimes which have begun with free, democratic elections, ignore the Constitutional limits placed on their powers and make light of fundamental rights and freedoms. In this type of country, the safeguards must be made more secure than in those where there is a stronger tradition of constitutional liberalism.
Market economies and parliamentary democracies which are set up for the first time cannot prevent crises in which demagogues and extremists of all kinds emerge. The countries emerging from Communist rule run a far greater risk of losing stability than those where democratic institutions already run properly. They are obliged to protect their nascent democracy more carefully.
A bicameral parliament provides one indispensable protection, but on two conditions: first, that the two Chambers of the Parliament be distinct from each other, not because someone has decided so, but as the logical outcome of two different methods of election, irrespective of the persons elected, be they deputies or Senators. The second condition is that dialogue between the two Chambers not be mere conversation, but produce results in terms of the legislative process.
The differences between the Chambers in our country are laid down by the Constitution. Senators are elected for six years, and deputies for four. The Senate is renewed by one third every two years and cannot be dissolved. The Senators are elected by majority vote in two ballots. The entire Chamber of Deputies is renewed and can be dissolved in certain circumstances, and its members are elected by proportional representation, the actual form of election being negotiated at the present time.
The Senators in Czechoslovakia are less dependent on party politics because the upper chamber has less power and is elected by majority vote for a relatively long parliamentary life. This reduces the risk of power being concentrated in the same hands. It would thus appear that there is no link between the Senate and the regions. That is not quite true. The political and social system in the Czech Republic is still very much centralised, unfortunately. It is only last year that we began territorial reform, and only this year have we set up the upper echelon of territorial autonomy, that is to say the regions.
The Senate has its own special organisation to examine the possibilities of its own reform, and my colleagues and I do not think that the time has yet come to regionalise the Senate, on the lines of those in the other Western European countries.
I think that we could base our reform on the various examples in France, Italy, the Netherlands or Spain. We wish there to be a personal link between the Senate and regionally elected officers. We like what France has developed since 1875, that is co-operation between townships.
The majority election system links Senators to their constituencies with an iron grip. Because they have a legitimate interest in being re-elected, they are sensitive to the problems and interests in their own local politics. Thus the Senate becomes the upper level of local politics. Now, it is very difficult for a single party to dominate these local politics, in whatever country. A Chamber that has been elected by majority vote should be the organisation to defend the interests of the men and the institutions implementing local policy. However, multi-cultural trends which, in political theory, are associated with bicameralism, mean that a single type of interest cannot be dominant. Thus, greater diversity should be encouraged.
At the moment, we face a wide range of opportunities. The Senate is responsible for important business, but also for less important matters: it is becoming a mouthpiece for local interests, while at the same time laying down the priorities for the country as a whole in the long term. So these are two totally different aspects of Senate activities. Not all Senators can cope with it all, but that is not a problem. The style of Senate discussions and decision making is serene and thorough, and members listen to each other, thus ensuring that the Senate fully carries out its role in legislative scrutiny. The Senate of the Parliament of the Czech Republic is an original version of a senate, and stands out from the other more conservative ones. It is endeavouring to grasp the particular needs of our country and our time. Allow me, Ladies and Gentlemen, to invite you all to the meeting of this association in Prague, probably in spring 2003. I shall have great pleasure in welcoming you.
Mrs Françoise Saudan, President of the Swiss Council of States :
The Swiss federal Constitution provides for 46 members of the Council of States, that is, two deputies for each of the twenty three cantons in the Swiss Confederation.
The population of each canton elects two deputies, regardless of its number of inhabitants, surface or economic clout. Thus, the same paradox as that which you yourself noted, Mr. Chairman, but even more marked in this case, can be observed in our smallest canton Appenzell Innerrhoden, numbering fifteen thousand inhabitants and forming a canton with Appenzell Ausserrhoden, elects one Senator, and the canton of Zurich, which is the economic hub of our country with one million one hundred thousand inhabitants, elects only two. If my arithmetic is right, that means one Senator for fourteen thousand inhabitants in one case and one Senator for five hundred and fifty thousand in the other.
The republics and cantons lay down the rules for the election of their deputies and in all the cantons, except the last small canton in the Confederation, the canton of Jura, it is the majority vote which is used for election of Senators.
The other Chamber in the Swiss Federal Assembly, the National Council, is composed of two hundred deputies, elected by proportional representation. Thus, to return to my example, Appenzell Innerrhoden will have one deputy whereas the canton of Zurich will have thirty five. That is how our country achieves balance.
The two chambers sit and deliberate separately. However, they have absolutely identical powers and duties. It is the specific feature of the Swiss regime which gave rise to the comment of our eminent constitutional law specialist Jean-François Aubert: we have perfect bicameralism. Neither of our two chambers dominates the other. How can we arrive at an agreement? Naturally, a procedure for avoidance of differences of opinion is provided, the final stage of which is the Conciliation Conference, on which both the Senators and the National Councillors sit. To my knowledge, agreement has always been arrived at this stage.
Now, as regards representation, there again we have considerable differences with our great neighbour Germany, and our neighbour Austria. The members of the Council of States, and this is guaranteed by our federal Constitution, do not vote according to instructions. No canton can impose a vote one way or another. That is where the difference, not least with some of our neighbouring countries, lies.
Naturally, we maintain extremely close contact with the cantons as well as the Parliaments or the executive bodies. When our national airline Swissair decided to abandon Geneva Cointrin airport, all the Geneva deputies agreed to defend the interest of our airport. But can it be said that Senators are biased in favour of their own cantons? No study has ever formally proved this. It has simply been observed that for some subjects, there is a kind of sacred union which groups both the National Councillors and the States Councillors in the defence of their own cantons.
This explains the existence of a structure which I am not sure exists in other countries: the Conference of Canton Governments. It includes the executive bodies of the various cantons and subjects of federal importance are discussed, where they have repercussions on the cantons. Let me give you two concrete illustrations: first, social policy and education issues, and second, European integration. These are issues of federal importance where the cantons have felt the need to meet in order to hammer out a common position. It is more particularly this Conference of the Canton Governments which is already involved, in the framework of the second round of bilateral negotiations, in examining whether our country should integrate the Schengen area or the Dublin Convention.
Naturally, given our country's specific structure, one essential issue is the financial balance between cantons. It is a fundamental challenge to the cohesion of our country since, for cantons like Jura or Uri, almost 80% of the budget or of large infrastructure is funded by the Confederation. Now, this financial balance between cantons, an essential instrument of national cohesion, is beginning to show signs of strain because cantons like Zurich, Geneva or Basle are becoming richer and richer and some others poorer and poorer. It thus became clear that the financial balance needed re-adjusting, and the Conference of Canton financial directors thus played an essential role.
The question facing us is therefore: what role will the Council of States play in the future? In an evolving regional Europe, we must take account of the interests both of our country and of each canton. Initiatives have been taken to merge two cantons, Vaux and Geneva, and study has also begun in German-speaking Switzerland to establish entities with a significant weight. The question is, how can we continue to defend the interests of the cantons in these new heavyweight structures, because we will no longer be sufficiently influential at local level.
What is the final characteristic of the Council of States? I might seem somewhat pretentious in saying this, but in our country the Council of States is called the advisory chamber. Why? Because in our system we often go into action after the National Council, except in certain matters directly involving the cantons where we intervene first. This gives us the time to observe how the debates have taken place in the National Council, and think up possible solutions, thus becoming a kind of guardian of the Constitution. We also safeguard the quality of our legislation and the stability of our law.
I will end my speech with a rather amusing quote from Jefferson, who very prettily said : « The tea is not so hot when you pour it into a second cup before the first ».
Mr Tone Hrovat, President of the National Council of Slovenia :
The current parliamentary system in the Republic of Slovenia is fairly recent. However, the constitutional basis for the two chambers is well-established and I hope that it will endure and gain in strength. In the 1991 Constitution, the definition of the Senate comes second after that of the National Assembly.
Unlike the latter, which is composed of deputies representing the entire population, the Senate of Slovenia represents social, economic, professional and local interests. It should be noted that of the 40 Senators, 22 represent local interests. The powers of the Senate are as follows: it gives an opinion to the National Assembly on all issues within its jurisdiction, it has the right to veto a bill, thus preventing it from being enacted and leading to a second discussion, and it can initiate parliamentary inquiries and referendums of legislative significance. It can also request the opinion of the National Assembly on certain questions.
The latest amendments to the rules have increased the Senate's powers since, by right, it can propose amendments to bills, even if it did not introduce them. The current arrangement provides for a second chamber, called the Senate, representing local interests, which are in the majority, and private interests. The majority of Senators represent local interests.
Secondly, the Senate represents a wide range of social interests, that is to say, the representatives of employers, employees, farmers, craftsmen and liberal professions. The result of our Senate's work shows that we play our role well in correcting the excesses of the National Assembly. Our experience is a good basis for development of the bicameral system and a strengthened democracy in our State.
The position and structure of the Senate of Slovenia require a special election method, which is different from that for the National Assembly. The members of the Senate are not elected by universal suffrage as is the case for deputies. The 22 Senators representing local interests are elected by the local authorities. The one difference from indirect elections is a temporary provision in Article 66 of our rules. This provision was adopted because the system of local self-management had not yet been set up and neither the new districts nor their structures had yet been formed.
As regards the 1997 elections, that is, the last Senate elections, the Senate suggested using the 1992 system, where the representatives of local interests were elected by direct suffrage. However, the Assembly refused this suggestion, and these representatives, and thus the 22 Senators, were elected by indirect suffrage. We then had to form 22 electoral constituencies. Each constituency covered the territory of a district or several grouped together. These constituencies are laid down by law, and a balanced population distribution has been sought.
The system set up for the election is interesting from the point of view of the political parties. Only local representatives may be put forward by the political parties. The parties cannot propose candidates for the remaining Senate seats, because they represent the interests of civil society. In the group of representatives of local interests, the Senators are linked to their territorial constituencies. It is perhaps strange to note that the political parties, and indeed the parties in the majority, do not prepare themselves for constructive dialogue with the Senate even though they put up local representatives for election to the Senate and propose deputies. The parties should try to back up the Senate and not weaken it.
The composition of the Senate ensures that when legislation has to be drawn up or a policy implemented, local interests are safeguarded. Local initiatives may be taken by Senators during their questions or when they introduce legislation. Each group of Senators chooses a leader who organises it into an operational or a local group, calls meetings and is provided with assistants.
Senators do not become involved in party politics, thus providing a significant quality in Slovenian political life. Although they are in the majority, the group of local interests do not act via majority votes but via co-ordination and conciliation between the interests of the various authorities. The representatives of the local authorities endeavour to promote the interests of their districts in a more wide-ranging type of co-operation. Within their constituencies, the Senators maintain contact with their electors, first with the mayors and then with the population, by means of clinics in all the towns in the constituency. They offer technical assistance to members of the constituency.
This dialogue offers another opportunity to take the temperature of the country as a whole, present local interests within the Senate commission, and safeguard the true interests of the local authority. The representatives of local interests organise discussions and debates in their constituencies, to assist or initiate the creation of a bill. In other words, the local Senate representatives are seen by the population as mouthpieces for their interests and initiatives.
In addition to this role of intermediary, there is the possibility of contact with the other State organisations and the deputies. The population expects the Senators representing local authorities to persuade the State authorities to guarantee local interests. This is what the Senate does. The Senators' work enables them to establish direct links between the ministries, the Government and the population.
I think that the Senate of Slovenia is an example of successful work. It remains open to the initiatives of individual Senators and to the initiatives of the institutions in civil society. The Senate is also fully aware of the role played by non governmental organisations. There is thus intense collaboration with some fifty of these organisations. The Senate supports their action, and assists in the organisation of debates. This type of support gives the Senate another opportunity for conciliation and co-ordination.
The foundations of the Senate are thus to be found in civil society, and also in local authorities, quite independently from party politics. All this gives a particular meaning to the building of democracy in a young State like Slovenia.
Mr Nicolae Vacaroiu, President of the Romanian Senate :
Eleven years ago, in a context of earth-shaking change, which sadly resulted in violence, when we moved from a totalitarian regime to one that was truly democratic, Romania began rebuilding the institutions of a State of law, respecting the principle of separation of powers. This rebuilding was sorely needed. At this time, the Romanian Senate counts 140 Senators elected by direct suffrage. The seats are distributed according to population, the ratio of Senators to electors being one to 140,000. Candidates are either put forward on party lists, or are independent.
At first sight, there is proportional representation of the various regions in the Romanian Senate. However, in reality there are a great many parties in the elections (between 40 and 160) and there are a multitude of candidates, but the Senate in fact counts only 5 or 6 political formations in the final count. Thus a great many seats are elected on the base of party lists. There is thus anomalous proportion. In some regions, a Senator is elected with 2,000 votes and not 140,000. So the local authorities are under-represented in Romania and the same is true of the Chamber of Deputies.
A joint committee of members of parliament and representatives from civil society is to revise some aspects of the Romanian Constitution, among which are references to the role of the Parliament.
In our Constitution at present, the Senate and the Chamber of Deputies have almost the same legislative activity. Today, the question is whether to differentiate the powers of the Senate from those of the Chamber of Deputies.
At first, there were several reasons for giving each Chamber the same form. First, a tabula rasa was required so that a suitable Parliament could be constructed. It was decided that a single legislative chamber was not sufficient, because double scrutiny was required. It must not be denied that there was a second argument, a sort of extra safeguard that was deemed necessary because of the years of totalitarianism, in the form of scrutiny of decisions. We needed several pairs of eyes, a brains trust to ensure that the reforms would continue smoothly with no interruption.
That is why today's meeting is of special interest for Romania. We are most interested in your experience and conclusions, in that of the other Senates in Europe, which will help us to arrive at the best decision possible when amending our Constitution.
Our Senate has created functional offices outside the Senate itself for Senators, with a secretariat and assistants which enable them to maintain permanent contact with the local authorities. During the compulsory two days that they spend in their constituencies, the Senators are in direct contact with this department. It can provide the local authorities with information on the bills debated in the Senate, and listen to solutions and ideas. Senators, who have the power to introduce bills, can also make amendments which can be accepted directly by the commissions that draft the reports. If the amendments are rejected by the commissions, they can still be brought before the Senate.
This has therefore been a useful experience. We nevertheless get situations where our parliamentary colleagues rarely visit their territorial constituencies. That is why there has been great discontent in some regions. I cannot disguise the fact that at one point we were concerned at public dissatisfaction with the Senate. There was similar discontent with the Chamber of Deputies and as the new President of the Senate I have taken measures: starting in January, I reviewed the organisation and operation of the Senate. The main change was to allocate the Senators to the specialised commissions, where the bills are drafted and analysed, and where the final decisions are made before tabling the bill in the Senate. The procedures were simplified. We granted the possibility to table amendments in plenary session. In this way, our legislative activity was made twenty times as fast as before. We have passed twenty times the number of laws as in the previous parliament, while not losing in quality, of course.
Naturally, there was criticism at first, but it must be noted that Romania must pass some 12,000 laws over an extremely short period of time, which means 2,500 per year. It is easy to see that we cannot pass stable legislation over such a short period, as in the member countries of the European Union.
The discussions in our plenary sessions were thus abbreviated, and were moved to the specialised commissions. This initiative was universally approved. The second problem, which led us to an unprecedented situation, was the marginalisation of the Senate and the Chamber of Deputies in the legislative process, because the Constitution vested the executive with the right to issue emergency ordinances in certain situations.
In the past four years, over 1,000 simple ordinances, initiated by the Government, have been issued; as a result, the Senate and the Chamber of Deputies have pushed onto the sidelines by the executive power. Thus legislation has become unstable, and this has been observed by investors, especially foreign ones. Corruption has soared, so that we are now envisaging blocking the processes which allow the Government to pass normative acts having the force of law.
We wish the Senate to become the true mediator for the local authorities: for this purpose, the powers of the Senate must differ from those of the Chamber of Deputies, except in a few areas. It must be the direct representative of the local authorities. The Senate must also examine the powers of the executive to supervise the other branches, and its increasing powers in foreign policy. In the legislative field, it must focus on the fundamental and organic law.
These points are at the draft stage. A decision has yet to be made by the commission formed by members of parliament and representatives of civil society.
Mrs Alicja Grzeskowiak, President of the Polish Senate :
The Polish Senate has no organic, institutional link with local authorities. It is merely the second legislative chamber. Equally, the Senate has no particular power in respect of the local authorities.
Nor is there any peculiarity in the method of electing Senators, who are elected by direct universal suffrage. There is one Senate seat for every 370,000 inhabitants. In the past, Poland planned to replace the Senate by a chamber which would represent the local authorities. Therefore, during the work currently being done on the Constitution, the idea was mooted of having a Chamber representing local authorities, but it was not backed by the majority. I personally was against this transformation of the Senate into a chamber of local authorities, because in fact these proposals only involved changing the method of electing the Senators and restricting the legislative power.
The lack of a formal link between the Senate and the local authorities does not mean that there is no link between the public authorities. The Senate elected for the first time, the one that convened in 1989, in the first democratic elections in Poland, voted a resolution to re-establish local authorities in Poland, and it also began legislative work with this aim.
The Senate also convened the commission of local authorities, which, in concertation with the constitutional commission which I chaired at that time, co-ordinated the Senate's work on reform of local authorities.
I remember the day when as chairperson of the Senate Constitutional Commission in 1990, I presented the Senate's proposal for amendments to the Constitution which would make possible the re-establishment and activity of the local authorities.
On that occasion, I underlined the fact that the Senate saw local authorities as the expression of democracy at work. The nature and scope of the problems transmitted to the local authorities were the gauge of the citizens' political subjectivity and the political freedom of the State.
After the Senate had taken this legislative initiative, laws were passed which re-established local authorities at district level. The introduction of the upper echelons of local authorities was still, at that time, subject to reservations. Furthermore, more experience was still needed in administering these local authorities, which had not existed in Poland for many years.
It is thus the Senate, as the first chamber of the Parliament, elected democratically, which first argued for local democracy. In some 2,500 Polish districts, the 1990 local elections were thus the second free elections in Poland.
This reform, begun by the Senate of the first legislature, was only completed during the present fourth legislature. We have introduced the upper echelons of the local authorities at voivodie level and at pawiat level. The reform bills were introduced by the Government but the Diet and the Senate played a predominant role in drawing up the new legislation on local authorities.
As the prime mover in re-establishing the local authorities in Poland, the Senate still maintains a close interest in their development. It is mainly the Commission for Local Authorities and the State departments which deal with this business.
I would like to conclude by underlining that following the reforms of the local authorities, introduced by the Senate, many Senators have begun to support the local initiatives of these authorities. Some have even run for election in local elections and were elected to local offices. However, the new electoral law on the Diet and Senate, voted this year, forbids people to hold office both in Parliament and locally. Experience has shown that stricter separation between the local authorities and the legislative power is needed, in pursuance of the constitutional principle of separation of power.
However, that does not mean that the Senators have severed all links with local authorities. The current law on exercise of the office of deputy and Senator grants the latter the right to participate in the sessions of the bodies directing the local authorities in the constituencies in which they have been elected. Senators also have the right to table motions and remarks, and intervene in the administration of the local authorities to deal with issues that they present in their own name or on behalf of their electors.
I think that the Polish Senate will always continue to express its interest in the problems of local authorities, in the exercise of its legislative powers.
Mr Frederic Korthals Altes, President of the First Chamber of the States General of the Netherlands :
From 1579 to 1796, the seven northern provinces of the Netherlands were a federal republic known as the Republic of the United Provinces. These provinces were at that time constituted of the old counties, one bishopric and one duchy dating from feudal times. Sovereign power was exercised by the States of each province.
At that period the States General met at the Hague, and represented the seven provinces. Thus, in the beginning, the States General of the Netherlands were the representatives of the provincial authorities alone. And indeed the States General were dominated by the very powerful province of Holland, the westernmost province. The members of the States General were representatives of their provinces and had no freedom of action.
They were very much prisoners of their mandates, to such a degree that the States General which had been so powerful in the seventeenth century became known in the eighteenth for their dilatoriness. They were incapable of making decisions in foreign policy because decisions to make war or peace were supposed to be unanimous. It is thus not surprising that Dutch historians are trying to warn Europe of the dangers of blockage if unanimity is absolutely required for decisions in the Council of Ministers.
Decision making was always delayed because the members of the States General were required to consult the States of their own provinces. In 1796 a new Republic was created, the Batavian Republic. This had a central government and a National Assembly which was elected directly. The provinces thus lost their power. After its conquest by France and its integration into the French Empire, the Netherlands became a kingdom integrated into Belgium between 1815 and 1830. The National Assembly once more became the States general and was again chosen by the provinces.
It was only when the northern Netherlands and Belgium were added in 1815 that bicameralism was introduced. The Senate, which is called the First Chamber of the States General, was created on the insistence of the Belgians, and indeed I am still grateful to them. In the beginning, the members of the first chamber were nominated by the King, and known as the "King's menagerie".
In 1848, the new democratic Constitution provided for the election of the Senate by the States of the provinces, as before. Thus the Senate continued the tradition of the former States General of the Republic of the United Provinces. The Constitution does, however, provide that all the members are responsible for their own decisions and no instruction is accepted. In this respect the situation resembles that described by the President of the Senate of the Swiss Confederation.
For many years, the link between the States of the provinces, now numbering twelve, and the Senate, was very strong. The provincial States are not just composed of the seventy-five Senate members but also comprise those responsible for presentation of the lists of candidates. Indeed, it is a very difficult calculation to make. Not only that, but since 1818 we have taken account of proportional representation. The provinces choose the members of the Senate depending on population numbers. So there is proportional representation in the Senate. In fact, for many years, the political parties did not have much influence over the composition of the lists of candidates.
However, today, nearly all the political parties participate in drawing up these lists of candidates. The members of the provincial States must then submit lists much more formally, taking account of the decisions made by their parties. We have thus moved from provincial freedom to party decisions. In 1966, we made a first attempt to influence this nomination. The first meeting did not last more than five minutes, since the members of the Provincial States came to the meeting but refused to speak if the party leaders were present. They had the constitutional right to present candidates and wished to exercise that right. So, today, as I said, it is the parties that draw up the lists and it is the provincial States which then present the lists. We have this type of structure everywhere now. However, a party must take account of the regional spread of the candidates.
Because they have preference, the States can always choose members other than those on the list. There is thus a possibility of adjusting the choice where the Party takes insufficient account of this much insisted-upon regional spread. Today, two Senators in our Senate are not in the order of the lists. The Social Democrats in the province of Guelder took matters into their own hands and rectified the fact that their party was disregarding the interests of the province.
We have also had a Senator with no party affiliation since 1995, who was chosen by the provinces. As regards legislation, regional differences have no particular impact in the Senate. Agricultural or business interests are the same whatever the region represented. The regional bias of Senators only emerges where bills to modify regional structure come up for examination. Then there is still the question of whether the Senator comes from a city or a suburb.
Between the provinces of the sixteenth, seventeenth and eighteenth centuries and the de-centralised structure of the nineteenth and twentieth centuries, our political organisation has left little scope for the strong influence of the local authorities, even though the provinces can rectify choices of candidates and suggest their own. The added value of the Senate of the Netherlands is not so much in representation of the local authorities, as in the fact that its members have a social horizon or experience which is different from those of the members of Parliament. The latter are professional politicians, who do not necessarily have great social experience. They are far more active in the political field, while the Senators are people who have already accomplished long careers in science, business and so on, and still wish to live in society. Often they are teachers, academics, or former mayors, heads of industry, ministers or members of parliament. So they provide a vast range of experience. For instance, we have three former ministers of justice, two former ministers for foreign affairs, one former minister of health, and one former minister for defence. The Senators do not often make use of their right of veto: they attach much more importance to the value of the debate.
This is what I wished to say to you in this first meeting of the Association of European Senates. As far as I am concerned it will be my last, since in October I am due to pass on the relay to a representative of another party (the Christian Democrats). But he also comes from another province and represents another local authority.
Mr Alfredo Prada Presa, First Vice-President of the Spanish Senate :
First of all I would like to transmit the apologies of the President of the Spanish Senate, Senora Aguirra, who was unfortunately unable to come to Paris today for this meeting as she wished.
The political and constitutional life of the countries we represent offers many paradoxes, none of which is as great as that presented by bicameralism. Although it is true that much criticism has been levelled at second chambers in recent years, a mere glance at this meeting suffices to show that virtually all the countries around is have a bicameral system which was established either in the distant past or more recently under constitutional reforms.
One important reason for choosing bicameralism despite the long list of reasons against, is that generally a second chamber is chosen because of the underlying reality of the society that requires it. In this regard I might recall the words of Bagehot, the English thinker and politician of the nineteenth century, who said, on the subject of the United Kingdom, "It is clear that we would not need an upper chamber if we had a perfect lower one", representing the Nation properly, that is to say always moderately never giving way to passions, and never skimping on the sometimes detailed and slow procedures required for proper analysis of issues.
It should be remembered that in Spain we have an important role, not least because of our territorial representation as the second chamber. Part of our Senate is elected, with an equal number of Senators for each constituency, whatever the population. Another part is composed of Senators chosen by the autonomous parliaments. Finally, there are the towns of Ceuta and Melilla which elect two Senators. There is one Senator for each autonomous community in Spain, plus one Senator per million inhabitants.
Of the 259 Senators in our Senate, 208 are elected by the provinces and the others are chosen by the autonomous parliaments. The local representation aspect of the Spanish Senate can also be seen in its functions.
There is also different implication of the Senate and the Congress of Deputies in the various political issues, not least as regards inter-territorial responsibilities: concluding agreements between the various autonomous bodies. There is also specific responsibility for the budget as provided for by the Constitution. This is important when the autonomous communities take decisions contrary to the general interest of Spanish citizens and thus the intervention of the Government is needed.
Senate authorisation is required upstream of Government intervention. Nor should it be forgotten that the autonomous governments must participate in the debates of the General Commission for Autonomous Communities. In the regulations there are a number of provisions which show this territorial nature quite clearly. For example, there are local groups within the parliamentary parties which are formed by Senators from the same community and representing the same parliamentary party.
More and more in Spain, the political institutions wish to strengthen the power of the Senate as a means of local representation. In 1994, the General Commission for Autonomous Authorities was created, with special responsibilities for administration of the autonomous bodies.
The use of official languages is allowed in this Commission: the presence of representatives from the autonomous governments is also provided for, as is that of the Government advisors of these local authorities and presidents of the local autonomous bodies.
After the latest elections in March 2000, the possible reform of the Senate was brought up again. The Chamber passed a motion on Senate reform on May 16th, 2000, not least with a view to stepping up its role as a reflection of Spanish party politics. The main goal of this reform is to seek a wider consensus.
Dialogue was opened between the various presidents of the autonomous communities and the spokespersons of the respective parliamentary parties. The impact of various factors such as formulas to reinforce the use of the languages which are official in some autonomous communities on a par with Spanish, must be examined. It has also been agreed that an autonomous observatory must be set up, a kind of brains trust to examine all the local issues, with more particular attention paid to the economic aspect.
Finally, we propose to begin study of whether to allow the presidents of the autonomous authorities in the Chamber, not in the current formula as members of the General Commission for autonomous communities, but actually as participants in the Senate's discussions as of right
The provinces and municipalities in Spain have existed for a number of years and we wished to strengthen the constitutional safeguards for these bodies. The Senate, meeting in plenary session on October 11 2000, approved a reform of the rules which provides for creation of a non-legislative standing committee called the Commission for Local bodies. Its purpose is to step up the role of the municipalities and provinces, one fully acknowledged by our Constitution, which also guarantees their autonomy. It will be a new instrument which will provide a new debating floor on which to express the aspirations and hear the issues of concern to local administrations. It will also give new opportunities to these autonomous administrations in the Chamber itself.
Although we have a range of proposals which are being studied, providing for creation of a Senate as a true Chamber representing local authorities, it should not be forgotten that the Senate is also a parliamentary body. It is one of the "Cortes" of our national Parliament and as such, it has a legislative function and is empowered to exercise scrutiny of Government policy, as provided for by the Constitution. The configuration of the Spanish Senate and these attempts to reform it enable us to see that the function of representing autonomous communities, which is of great importance in second chambers, especially where there is a federal system, could very well be instituted also in unitary States.
And I think that in that case, they can become the missing link between the local authorities and the national Parliament, while at the same time not relinquishing their function as a chamber for second reading of legislation. This function, albeit much criticised, still seems to us to be essential in guaranteeing the proper running of a democratic State. And, to quote John Stewart Mill, who was an untiring defender of second chambers: "a majority in a single chamber, if made permanent, can quite easily turn into an arrogant despot, except, of course, if it feels that its acts might be countered by another constituted power". Lord Wice recalls, also, that "the advantage of dividing legislative power into two bodies is that one can give a second hearing and correct the possible errors of the first chamber".
Mr Gerd Klamt, President of the Austrian Bundesrat :
Austria is a federation composed of nine autonomous Länder. What is essential for a federation is that responsibilities must be very clearly divided up between the Länder and the federal government, and this division must be guaranteed by the Constitution, so that no unilateral change can be made in this division.
The Austrian Länder are provided with bodies having autonomous legislative power, called the Länder parliaments. they also have independent governments which can even sign State treaties with neighbouring regions or States. To guarantee the representativeness of the Länder, the Bundesrat has the power of absolute veto, which it can use when the national Parliament takes decisions counter to the interests of the Länder. To do this, they need simply one third of the votes in the Bundesrat. Furthermore, all bills introduced by the National Assembly must receive a hearing in the Bundesrat. The Bundesrat can also use a suspensive veto and the same thing applies to State treaties. The interests of the Länder are also safeguarded by two other mechanisms at Bundesrat level: one third of the Senators can contest a federal law in the Constitutional court, and it needs only one third of the Senators to vote for a referendum to be held on any amendment to the Constitution.
The Austrian Constitution dates from 1920. It was also in 1920 that the Bundesrat was created, and since this period, it has led to a balance of power between the Länder and the federal level. The Social Democrats were more in favour of a federal model. The members of the Bundesrat are elected by the Länder parliaments, the number of Senators depending on the population of the Land. They can range from three to twelve. The president of the Bundesrat is chosen in turn from each Land, for a period of six months. My term of office will end at the end of this month, and I knew that before I started. I must say that it is a great honour for me to have presided over this Bundesrat for six months, and I find it perfectly normal that each Land should have the right to its president in turn. It is the Land parliament that decides who is to be delegated to the Bundesrat, but the proposal is submitted by a political party and the person must be eligible to the Land parliament. The Senators have the right to speak in the Land parliaments. The ministers who are Länder presidents can promote the interests of their own Lands in the Bundesrat when those issues are involved. The Länder, particularly their governments and parliaments, are given all the documents on the legislative process, beginning with the bills drawn up by the first Chamber of the Austrian Parliament, and including the results of votes and the decisions finally arrived at.
At the same time, the Länder are invited to give their opinions and explain the reasons for which they might use their suspensive veto, or use their right of absolute veto. In Austria, we have a third administrative level. This is the local communities, especially the districts. These are autonomous bodies for administering the local authorities. The mayors and town councils carry out this administration independently and autonomously. They are grouped into the Union of Austrian Districts and the Association of Austrian Towns. These districts are not directly represented by the second Chamber, but enjoy the same right to information as the Länder and, like them, are invited to give their opinion on the bills submitted to them. However, the Austrian districts belong to the Länder, and the responsibility of the Bundesrat is to represent the Länder at federal level.
Today, there is fierce debate in Austria concerning the Bundesrat, because the Länder sometimes feel that the Bundesrat is more influenced by federal interests and those of the central party than by those of the Länder. Thus, a number of suggestions for reform have been submitted, not least that Senators be elected by direct universal suffrage. It was also suggested that the Senators should respect the decisions made by the Länder parliaments fully in future. At the moment, the Bundesrat members are entirely free in the exercise of their duties. Other proposals are that the minister-presidents of Länder and members of Länder governments should represent the Länder in the Bundesrat. However, I must say that all these suggestions are perfectly possible under the Austrian Constitution. The Länder can perfectly well be represented by their minister presidents, or by the members of their parliaments in the Bundesrat. The only condition is that they be eligible to the Länder parliaments. However, the exercise of rights in the Bundesrat is an eminently political question. The Austrian Constitution fully provides for effective representation of the Länder in the Bundesrat. In Austria the population identifies very closely with the Länder. The citizens are first and foremost the citizens of their own Länder. This is due to the fact that the Länder are, in the great majority of cases, far older than Austria itself. They belong to a tradition dating from the Middle Ages and after the Second World War, the Länder made a decisive contribution to the re-establishment of the Austrian State.
Mr Gernot Mittler, President of the Commission for European Affairs of the German Bundesrat, Minister of State :
Germany is an eminently de-centralised country. We have sixteen Länder and they created the Bund, the Federation. So we had the Länder first and then the Bund. It is that chronological order that determines our organisation, and we have very clearly defined distribution of powers, an essential ingredient in a federal structure. For instance the Länder have power in culture and education. Their powers are vested by the Constitution. As regards agriculture and ecology, the Länder are also more particularly responsible, while the Bund is responsible for foreign policy, security and fiscal policy among others.
There is a clear division of responsibilities between the Länder and the federal level. Not only are responsibilities divided: the Länder also have the duty to assist in drawing up legislation at federal level, by means of the Bundesrat. Unlike in Austria, the German Länder delegate members to the Bundesrat. They are not representatives of the Länder parliaments, but members of the Länder governments. Each government has a certain number of votes. The largest Land in Germany, North Rhine - Westphalia, with 18 million inhabitants, has six votes and the smallest Land, Breme with its 500,000 inhabitants, has three votes. Thus there is not completely proportional representation, indeed far from it. There is one essential principle which guides us and governs the balance of power between such different institutions: it is that the law voted by the Bund prevails over that voted by the Länder. The second principle is that the Länder must remain loyal to the Bund, and it is precisely at this level that the balance of power is achieved and solutions can be found for existing tensions.
Of course, there may be different political majorities in the Bundestag and the Bundesrat, as is the case today. The question is then how the legislative process can be guaranteed. We have the intermediation committee which is composed of an equal number of representatives from both the Bundestag and the Bundesrat. This committee is responsible for finding solutions to existing conflicts, by itself submitting proposals to the Bundestag and Bundesrat.
As regards the districts and their legal structures, it is the Länder which are responsible, as they are for financial subsidies. I wish, here, to underline the fact that since 1992, our fundamental law has provided that for questions on the European Union, the Länder have the right to participate in the discussion in the Bundesrat. Thus the Länder take an equal part in decision making.
In addition to this presentation of our legal structures, I would like to repeat that Germany is de-centralised, and that is also what enables us to feel at home in Europe. Europe must be a Europe of the regions, especially if it is to be accepted by our fellow citizens. The principle of subsidiarity must be the main idea behind Europe today and in the future, not just in our Constitutions, but also at the level of our daily lives.
We have heard today that there are many different models and different arrangements in other countries. We have as many configurations as there are countries. I think that the question we must ask ourselves in this Association is this: will we really succeed in making these different configurations in Europe fruitful, so that Europe will remain close to the citizens and avoid Brussels becoming a conglomeration of anonymous pen pushers?
This will be the task facing us, and I will go even further. We come from vastly different countries and we have very different State institutions, as the various drafts drawn up for a European Constitution show. Chancellor Schröder and French Prime Minister Mr. Jospin both have an opinion on this, and I think it will really be the essential question to be decided in the coming years. I wonder if in coming meetings we should not also examine this issue.
How can we make our contribution, at Senate level, so as to arrive at a common solution for the future of Europe? How can we move forward efficiently and appropriately? This is what I would like to say in addition to my description of my country's legal structures.
Mr Armand De Decker, President of the Belgian Senate :
Our discussions today have shown how important this exchange of experiences between our Senates is, and how it could lead to closer collaboration between us, even to what the President of the Bundesrat just said, examination of what lies in the future for Europe and more especially the role the Senates could play in that. Perhaps ultimately, if it appears possible, a bicameral Europe could be envisaged.
I note that many politicians, such as President Chirac, Mr. Fischer, Mr. Schröder, Mr. Blair or Mr. Kerhofstadt, have alluded to the creation of bicameral institutions in Europe. When that time comes, of course, there will be the question of what form the bicameralist structure should take. Will it be on the German model, where representatives of the governments of the EU member States will sit in the European Senate, or the French, Italian, Spanish or Belgian model, with members from each parliament?
However, at this time I will merely contribute the modest experience of Belgium as regards the role of the Senate in representing local authorities.
After local democracy and the Rule of Law were first created, the local authorities had a long period of playing a leading role. The basic liberties, participation in administration and due process are all foundation stones in our conception of law, and they developed in European towns during the Middle Ages.
In the modern conception of the State, local authorities still have a key role to play. This enduring interest in local government is currently being given a new lease of life due to the increasing importance of the principle of subsidiarity, and also because there are many attempts to bridge the gap between the citizen and politics. Subsidiarity is a recent expression of this wish, but it is also, perhaps, a principle as old as the hills. Subsidiarity requires the lowest level to relinquish the upper level only if it is strictly necessary. A contrario, the power of the higher authority includes the functions that it can carry out more efficiently than the lower one. In addition to this there is the social role of the local authorities. At a time when the distance between the official structures and the citizens is constantly being criticised, the local authorities are the appropriate means by which to bring the world of politics closer to civil society.
In Belgium, these ideas have been grafted onto a process of federalisation which began in the sixties. The Belgian institutions, which used to include only the State, the provinces and the districts, were added to by new decentralised authorities, composed of the communities and regions with considerable autonomy. Therefore Belgium is currently made up of the State, three regions, three communities, ten provinces and nearly six hundred districts, despite its small size.
Belgium is unique in what others qualify as a hybrid State structure, composite surely, some even say baroque, but which all agree is the image of a country in the borderland between the Roman and Germanic cultures.
The transformation of the Belgian State into a federation brought far-reaching change in the Parliament's power. Since its creation, Belgium has had a bicameral system. The Chamber of Representatives and the Senate are on equal footing. However, when the State was reformed in 1993, this system was radically restructured. The two main thrusts of this reform were first, the transformation of the Senate into a second legislative chamber, and second, the representation of the federated entities by that Senate. Of the 71 Senators currently in office, 21 are so-called Community Senators. They are elected by the three assemblies of communities from among their number. Ten Senators are elected by the Council of the French-speaking Community. Ten others are elected by the Council of the Flemish speaking Community, and one only by the Council for the small German-speaking Community which includes 70,000 inhabitants.
The Senate represented the higher local authorities well before Belgium became a federation. Until 1995, over a quarter of the Senators were elected by the provincial councils. By substituting the community Senators for the provincial ones, the Senate reform sanctioned, as it were, the development of the communities as new political authorities.
Since the members of the Community Councils are still members of the regional Councils too, all the federated entities are represented in the Senate via the 21 Community Senators. They enable the communities and regions to have a mouthpiece in the Senate, for example when Constitutional reforms are tabled or when federal laws on the status of the federated entities are discussed. The Community Senators can also enter debate with their federal colleagues who are elected directly at federal level, and even with the federal Government. The Senate's description as a meeting place for the Belgian communities comes from this.
The Senate's composition makes it the ideal place for discussion of issues transcending the strict separation of power between the various political authorities. This is, for instance, the case for issues regarding mobility, which concern the regions as well as the State and the communities. It is also the case for other complex issues such as poverty or the information society.
The Senate also ensures that the federated entities are associated in the exercise of certain federal powers. Justice, for instance, is obviously at federal level alone. That being said, the courts and tribunals must also apply the laws of the federated entities. The constituent assembly used this as an argument for vesting the Senate with the power to nominate the members of the Higher Council for Justice, which, in turn, is called upon to submit candidates for appointment as judges.
In addition, the Senate is also vested with the exclusive power to give its opinion where there are conflicts of interest between the legislative assemblies, be they federal, community or regional. The Senate is thus the guardian of federal loyalty, even sometimes the peacemaker. All the components of the Federal Government are bound to be loyal to the federation in exercising their power. It is up to the Senate to ensure that the major conventions regulating Belgium are executed in good faith.
In conclusion, the Belgian Senate reflects both the sociological complexity of our country and its inspiration in seeking a just balance between solidarity and subsidiarity. In a State where the local authorities have attained a high degree of autonomy it is important to foster harmonious co-habitation between cultures, as well as better understanding of our differences. The Senate is the institutional translation of this wish to conciliate the respect of diversity and the search for unity, but is not that the challenge for all plural States, that is to say, States more attached to promoting harmony than to legitimising exclusion.
The result is that the Belgian Senate has changed profoundly. From being a Senate composed of directly elected Senators, Senators sent by the nine provinces and co-opted Senators, it has become composed of directly elected Senators and Senators from the regional and Community assemblies. The Senate structure has thus been adapted to the new federal structure of Belgium.
This experiment is extremely interesting. It is sometimes complex and operates relatively well despite the diversity of our institutional systems, our history and our traditions. We can see that these second chambers, as representatives of local authorities, manage to provide a most suitable response to the sociological reality of our countries, and thus arrive at harmony. I certainly note that the Belgium system, which is without a doubt extremely complex, has sparked interest in many regions in the world which have community problems. The institutions of the Brussels region, one of the three Belgian regions, which is also the home of the capital, with a population 85% French speaking in the midst of a country where over 60% of the people speak Flemish, provide another example of the difficulties facing our institutions. To resolve this problem we invented a regional structure with a regional parliament which itself, like Russian dolls, is divided into French-speaking and Flemish-speaking or joint Community assemblies, for certain issues. Naturally, there have been many visits from communities like the Israelis and Palestinians to find out how we arrived at a solution to the double-community problem of a capital which is also the seat of the main political institutions in Europe, and developed spontaneous, natural tolerance. And we have arrived at that, but perhaps only because we are a very old people which probably invented modern democracy in its towns many centuries ago. And we have been solving our problems, peacefully and politically, for many centuries now. That, I think, is the special feature and experience that we can contribute to this debate.
Dear colleagues, before I finish, I would just like to mention our next meeting, since you have been kind enough to ask the Belgian Senate to hold it. I think that at this stage it is best to begin by subjects which form the basis of bicameralism. Mr. Poncelet had the excellent idea of suggesting representation of local authorities in our Senates. I think that the other foundation stone of bicameralism is our role in second reading of legislation and legislative quality. That is the basic characteristic of Senates and so I propose that at our meeting in Brussels, to be held on Tuesday, November 13, 2001, we discuss our experience regarding the role of the Senates in legislative quality. Our Italian friends have told us that they would like to see documents exchanged before the meeting, which would save time in our exchanges and face-to-face discussions. Each delegation could therefore perhaps make a brief note of how the Senate or Upper House of their country deals with this quality aspect in the matter of legislation.
Furthermore, in the framework of the Belgian presidency of the European Union, on July 2nd and 3rd 2001 the Belgian Parliament - the Chamber of Representatives and the Senate - is organising a conference on parliamentary review of European security and defence policy, to which we have invited the presidents of assemblies, Chambers and Senates of the member countries, the chairpersons of the foreign affairs and defence committees of each country, and also, on the second day, those of the countries applying for membership of the EU, to join in a debate and common study of how to exercise democratic supervision of European security and defence. The European Parliament's powers in this field are limited to information, and it would be a pity if the national parliaments were the only bodies to supervise this at national level. During the conference of July 2 and 3, we will consider this issue and I hope that we will perhaps reach a consensus between the participants which would enable the conclusions to be included in the Laeken declaration at the end of the Belgian presidency.
Mr Marc Besch, Secretary General, Council of State of Luxembourg :
The Council of State is not really a Senate: in fact Luxembourg does not really have a Senate despite the fact that from 1830 to 1839, we belonged to Belgium which did not, perhaps, have the problems it has today, and at that time our institutions included a Senate. In Luxembourg there is a problem with our small size. As everyone knows, we have a population of 430,000, and the constituent assembly has always considered that neither a Senate nor territorial representation was justified. That does not mean that at the level of the Chamber of Deputies, there is not territorial representation, insofar as the elections more especially are by electoral constituency. However, once the deputies are elected, they must represent the general interests of our country rather than the special interests of their electors or their region.
The Council of State, which operates as a second Chamber in so far as it has the power to suspend any law for a maximum of three months by its veto, could have been used as a forum to represent the local authorities, but this has not been the case. The members of the Council of State are in fact nominated by the Grand Duke, and not elected. If a vacancy has to be filled, the first nomination is by the Grand Duke. The next possibility is to choose a candidate from one of the three presented by the Chamber of Deputies, and then if there is still a place to be filled, three candidates are presented by the Council of State and one is chosen, again directly by the Grand Duke. In practice, the composition of the Council of States takes account of the representation of the political parties in the Parliament to some degree, especially as regards the variety of qualifications and experience of the Councillors, rather like the Senate of the Netherlands. Thus there are members of the Council of State that come from the public sector, in addition to a number of high ranking civil servants and judges, but there is no representation of a professional order or a territory, like the National Council of Slovenia. That does not mean that a member of the Council of State cannot become a mayor or a member of a town council, in the same way as a Deputy in the Chamber of Deputies can hold two offices. But in fact the Councillor of State must guarantee impartiality in the exercise of his office, since his duties are more especially judicial. However, since the Council of State of Luxembourg is not elected, there is no representation of local authorities at this level.
I should like to conclude by saying how surprised I am after listening to our debates today. I always imagined Senates on the French or Belgian model, with a certain territorial representation, but I now see that is not always the case. As the President of the German Bundesrat put it so well, there is a diversity in the composition of our Senates that reminds me a little of that in the Councils of State.
As regards the next meeting of our Association, I wholeheartedly approve of the idea of a topic such as how to draw up good laws. Might I make a suggestion on this: would it be possible to draft a small questionnaire to elicit precise answers and thus make a comparative study of the various systems, which are in fact quite different and thus most interesting.
Mr Armand De Decker, President of the Belgian Senate :
I think that the suggestion of the representative of the Council of State of Luxembourg is most useful. I think it would be a good idea to start with an informative note on the various systems in our assemblies, and when I was listening to him I thought that we could also, at the Brussels meeting, invite a representative of each Council of State from the countries which have an organisation of this kind, for example. It is true that once we begin to examine the quality of legislation, the roles of the two assemblies and the Councils of State are interlinked and it would perhaps be useful for them to attend our debates.
Mr Carlo Guelfi, Vice Secretary-General of the Italian Senate :
The new president of the Italian Senate, who was elected a few days ago, was presiding over the Senate session which elected the new presidential bureau this morning. The Italian Senate is now ready to begin work with four new vice-presidents, and it asked me to represent it as a Senator. My remit is merely to inform the new president of the debates that have taken place here. They have been most interesting, especially for a country like Italy which, as you know, must now discuss the issue of federalism. There has been an amendment to the Constitution recently, and it is to be submitted for referendum in a few months' time.
In any case, federalism is still a burning issue in Italy and, naturally, it is closely linked to the role of the Senate and institutional change. However, that is all I can say for the moment. I have also been asked to confirm that the Italian Senate is most interested in this initiative taken by the French Senate, and thanks President Poncelet, of course, and all the presidents of Senates here today. During the next meeting in Brussels, we will be able to pursue this most interesting experiment, especially in the light of the suggestion made by the President of the Belgian Senate.
II. GENERAL DISCUSSION
Mr Armand De Decker, President of the Belgian Senate :
As Mr. Poncelet mentioned European bicameralism earlier and we have all seen the speeches made by Mr. Chirac, Mr. Fischer, Mr. Schroder and various other heads of State and governments, perhaps we could take a few minutes to give our opinions, or have a free discussion on this subject.
Mr Tone Hrovat, President of the National Council of Slovenia :
After our meeting in Belgium, the next one will be in Slovenia. We will talk about democracy in countries in transition and the bicameral system. Our Belgian colleague's suggestion seems to me to be particularly useful, even more so for countries with a more recent democratic tradition. It would be a message on bicameralism. I think it is very important to send a message to our governments, parliaments and political parties so that they can begin to think about building democracy through a bicameral system.
Mrs Françoise Saudan, President of the Council of States of Switzerland :
We are monitoring the debates on the future of Europe most attentively. Indeed, we had the opportunity to talk to you about it quite recently. I remember the first debate I read in the press, between Mr. Fischer and Mr. Chevènement, and I must say that I found it difficult to distinguish what I would call the basic issues. I find it most useful to have this discussion here. It is very important to bring Europe closer to Europeans. That, in particular, is the aim of the Charter of fundamental rights of the European Union. In Switzerland we have two instruments which are remarkably effective but which induce paralysis: the referendum and the initiative. I do not recommend them for Europe because I think that, although they are the best way to make the sovereign the arbiter, they are also terribly stultifying.
Mr Alfredo Prada Presa, First Vice-President of the Spanish Senate :
At the present time, the European Union is in a period of change and we are building anew the famous European model, with new challenges, and new member countries. Quite plainly, we must take account of this reality in the future configuration of the European Union which is to be changed in the coming years. Moreover, it is true that we have a number of organisations such as the Council of Europe, the Committee of Regions, or again, even the European Parliament, which still require the finishing touch, and are waiting for those powers that they do not yet have today. So every time there is an important issue, it is obvious that the concrete thing to do is increase parliamentary representation.
It might be good to increase the supervision of the European Union by government bodies. But the question is whether a Senate is justified in existing or not. Even politicians are asking themselves whether there should be another parliamentary entity at European level. But might that not produce a degree of incomprehension from citizens and a barrage of criticism from the media? Nevertheless, I think it is an issue which needs more thought, and full discussion. I think this association of the Senates of Europe is likely to have a very promising future. We will of course have other meetings, new topics to discuss; and I think that our association will be a forum in which we can air the opinions in our various countries on this question of bicameralist structures in the new European context.
Mr Frederic Korthals Altes, President of the First Chamber of the States General of the Netherlands :
I think all this is most interesting, especially what my colleague from the Belgian Senate has just said. I must say that in most of our countries, it is the government and the parliament, that have direct representation, which discuss these issues.
I would say that we must start by deciding if we want a model on the German or Austrian lines or if we want a southern European model, in which representation is of certain groups of the population, and that, of course, makes a huge difference. When we discuss these issues, we will need to be extremely cautious, because when the question is a second chamber for Europe it must not be to the detriment of the European Parliament as we know it today, which has a growing influence. The European Parliament, in my opinion, still does not have the powers and possibilities that should be expected of a parliament in a democracy that has attained a degree of maturity. We must therefore be sure that the debate on a second chamber is not detrimental to the European Parliament. We must first ensure that we truly represent the European people. We might represent the governments of the member States, on the German model, certainly, but I repeat that it is a little too early to discuss this. But it is nevertheless useful, and that is why I am delighted at the initiative of the French Senate.
Mr Xavier de Villepin, President of the commission for Foreign Affairs of the French Senate :
As he told you earlier, President Poncelet had an unavoidable appointment to see the President of the Republic, and so he asked me to replace him to bring our debate to a conclusion.
During this interesting day of discussion, each member of the Association has been able to present the system in force in his or her own country and the role of the chamber they belong to in representing local authorities. We have thus been able to gain knowledge from each speech and use the similarities and differences as inspiration. This comparison also allows us better to get to know each other, and this is a great advantage. I think it is also one of the aims of our Association.
I am delighted that it has, today, entered its truly operational phase, and look forward to the coming meetings organised by the Presidents of the Belgian, Slovenian and Spanish Senates.
The French Senate thus hands over the relay to President De Decker for him to continue the work started by this Association, in the certainty that he will foster the project we began together.
Once more, I wish to say how pleased I am to have participated in your work, and thank you very much for your active participation in today's meeting. I wish you a pleasant journey home to your respective capital cities.