Bicamérisme et représentation des régions et des collectivités locales : le rôle des secondes chambres en Europe
Palais du Luxembourg, 21 février 2008
II. IMPROVING THE REPRESENTATION OF REGIONS AND LOCAL AUTHORITIES IN EUROPE IN SECOND CHAMBERS
Chair: Mr Yavuz MILDON, President of the Chamber of Regions of the Congress of Local and Regional Authorities of the Council of Europe
Ladies and gentlemen,
It is a great honour for me to chair this sitting, as President of the Chamber of Regions of the Congress. Today's conference is in fact the fruit of an initiative launched a few years ago now by the Chamber of Regions' Working Group on Regions with Legislative Powers. Our theme for this afternoon, " Improving the representation of regions and local authorities in second chambers ", is extremely topical in many European countries.
I am very glad and very honoured that so many distinguished speakers have agreed to address us on this subject. Let me introduce them to you. First, we have Mr Lluis Maria de Puig, President of the Parliamentary Assembly of the Council of Europe and a Spanish senator representing the region of Catalunya. I shall call him first, because he has to leave us shortly. I also present Mr Luc Van den Brande, the new President of the European Union's Committee of the Regions. I have not yet had a chance to congratulate you on your election, Mr Van den Brande, and I do so most warmly now. Mr Van den Brande is also a Belgian senator and Chair of the Group of the European People's Party (EPP/CD) in the Parliamentary Assembly of the Council of Europe.
As you know, our invaluable partner in the organisation of this conference is the Venice Commission, which has been working for a number of years on this subject. It will be represented by Professor Sergio Bartole, to whom we extend a warm welcome. We also have with us another member of the Parliamentary Assembly of the Council of Europe, Mr Miljenko Doriæ, who chairs the Sub-Committee on Local and Regional Democracy and sits as a member of the national parliament of Croatia. He will report to us on his country, where the upper house was abolished a few years ago. I was able to visit the empty chamber of this former senate some years ago with Mr Doriæ, and it will be interesting to discuss his country's situation with him. We also have with us Mr Fabio Pellegrini, who is First Vice-President of AICCRE (the Italian section of the Council of European Municipalities and Regions), a very energetic member of our Congress, and Vice-Chair of its Socialist Group. He will outline the situation in Italy, where there is much debate as to the future of the Senate.
Chair: Mr Yavuz MILDON, President of the Chamber of Regions of the Congress of Local
and Regional Authorities of the Council of Europe
The Chamber of Regions of the Congress is closely following the initiatives currently being discussed in our various member states with a view to improving the representation of regional and local authorities in second chambers. These are particularly important because of their potential consequences for national legislative processes and for the way in which European citizens' concerns and needs are addressed at local and regional level.
Before we begin work, ladies and gentlemen, may I welcome our colleague Mr Jean-Claude Frécon, member of the French Senate for the Loire and Vice-Chair of the French Mayors' Association (AMF). I must thank him for constantly giving the Congress the benefit of his expertise and for his personal commitment within the Chamber of Local Authorities. He is a very active member of our Congress. I have myself been able to take part in visits, chiefly observation missions, to the new European democracies and have enjoyed the benefit of his great experience.
After that brief introduction I am happy to ask Mr Lluis Maria de Puig to speak. Mr de Puig.
General statement by Mr Lluis Maria DE PUIG (Spain), Senator, President of the Parliamentary Assembly of the Council of Europe
Thank you, Mr Chair. I will, if I may, say a few words on ways of improving the representation of regions in systems with a second chamber, our subject for discussion today.
We heard this morning that some countries have a unicameral parliament and others a bicameral one. In some countries the second chamber is a classic chamber giving legislation a second reading, whilst in others it is a body representing the regions.
The powers of Europe's regions are increasing. The last thirty years have seen great changes in the way the regions work. In some countries the regions did not yet have established institutions, whilst in others the regions were developed or in the process of becoming developed. Neither should we forget that associations, regional executives and regional parliaments are very active and are seeking not only contacts but also partners at European level.
Because the parliamentary dimension of the regions has grown, we now need to think about how second chambers, or "senates", might in some cases be transformed into bodies representing the regions. As I see it, regionalist movements are calling for the creation of this type of national chamber based on regional representation. The phenomenon of regional self-government requires co-ordination, at the very least. The regions need to feel attached to the State and the only way they can achieve this is by participating in the decision-making process. Creating regions and denying them a say in decision-making effectively means fragmentation and a remoteness from national politics. So I believe it is essential to attach them to the State.
As you are aware, Spain has gone through a kind of "regionalist revolution". Our political transition has not embraced the road of democracy and has not been accompanied by a fully democratic Constitution. The chief peculiarity of this Constitution is that it recognises the specificities and nationalities of the various regions and seeks to empower them. We are currently in the middle of a second stage in Spain. Many of the regional statutes have already been revised and reformed, to make them fit for purpose in our new circumstances and to satisfy the greater demand for powers and responsibilities being voiced by the regions. So we have a fairly well consolidated, organised and strong regional system. I will not go so far as to say that approval of the measures taken is unanimous. There is always scope for objections to some aspects of these measures; many objections and demands have been voiced by the various parties. But the great majority of Spaniards are happy with these statutes, which have been adopted in a referendum in each region. So it is fair to say that the system is endorsed by a large majority.
But the problem that remains is this: how can this regional reality be translated in a second chamber? The Spanish Constitution describes the Senate as the chamber of territorial representation. But in reality the Senate has neither the powers, nor the ability, to fulfil that role, or at least it has never yet decided to move towards a better representation of the regions.
There is a problem with elections. Who are Spain's senators? Most of them are elected under a majority system. But one group of senators is elected by the regional parliaments. So the election method is a hybrid. One must distinguish between the regional parliaments and the regional government. I think it would be hard to apply the Bundesrat model in Spain, because of the Spanish electoral system. It would also be controversial if some members of the Senate were not elected by the people but appointed by the regional government. The fragmented system for the election of the regional parliament is not transparent. One party dominates the Senate. This is the Popular Party and to date it has not sought to modify the electoral system. So there is a problem regarding the election of senators and whether they are representative.
The Spanish Senate has a number of regional responsibilities. It includes a General Commission of the Autonomous Communities, in which a range of regional self-government issues are discussed. A big debate is held every year with the prime minister and all the regional governments. Any of the country's languages may be used in the Spanish Senate: Galician, Basque, Catalan and of course Castilian.
This situation suggests that the Senate is ideally placed to be a genuine chamber of the regions. But it will not be, without reform. And any reform of the Constitution requires a two-thirds vote of the chamber. At present there is not enough agreement between the two groups to obtain that quota. Yet constitutional reform would give the Senate the powers of a regional chamber and enable it to change its relationship with the Congress of Deputies, which has the final say in every case. Laws are passed to the Senate to be debated, sometimes corrected or amended, but they always go back to the Congress, whose vote takes precedence, even in the case of legislation relevant to the autonomy of the regions. Any major reform of the Constitution would thus require a few changes to these rules.
A number of groups have done work on the subject, in conjunction with academics. They have given us a picture of all existing types of chambers, federal systems, etc. We have listened to them carefully, but have not yet reached the point where we can contemplate a new system. The Bundesrat , as I say, does not appear to be a viable option for most of the parties. Our view is rather that Spain might have a Senate made up of representatives of the regions. But the formula for electing them remains vague. There is a real difficulty here, not to say a split between the political parties.
But if we cannot get the Constitution reformed, is there no other way of developing the Senate? No, there is not. It will take a lot to change the workings and rules of the Senate. We just need the political will to do it. Maybe the politicians are reluctant to go down this road because of certain election procedures or for other reasons. Whatever the case, they have to agree a different way of working which will allow the current rules to be changed, perhaps through committees, by procedural means, and so on. Since no constitutional change is involved, this might be achieved by a simple majority vote rather than requiring a two-thirds vote.
We are conscious in Spain of this need to reform the Senate. Everyone, including the media, agrees on that. As a senator, I have been asked a thousand times what purpose the Senate serves. The question can be answered, of course, but the list of our responsibilities is so long that our listeners would switch off in boredom. Our job is basically to scrutinise the work of parliament. We work alongside ministers and the prime minister. We initiate legislation, as in the Congress, and so on.
Despite everything, the feeling persists that this is a chamber that is not really much use. It is true that we shall have to await the outcome of the election campaign, which got under way today, to see what the future holds. In a few months' time we shall see if radical reform of the Senate in Spain is possible. If it is not, changes to the rules would allow us to move things forward. That change would benefit both the State and the regions.
Thank you, ladies and gentlemen.
Mr Yavuz MILDON
Thank you very much, Mr de Puig, for that explanation of the Spanish system. We wish you success in the coming election campaign. I would add one piece of information, concerning the system of member states of the Council of Europe. Under the Council of Europe system we have a Parliamentary Assembly and the Congress, which could be seen as the Council of Europe's second chamber. Thank you for your contribution.
Our next speaker, ladies and gentlemen, is Mr Luc Van den Brande, President of the European Union's Committee of the Regions. Mr Van den Brande.
Introductory speech by Mr Luc Van den BRANDE, President of the Committee of the Regions of the European Union
Thank you very much, Mr Chair.
Ladies and gentlemen,
I am truly delighted to be with you at this conference. I know that that is a rather formulaic thing to say, but I think the many responsibilities which bring us together here today require us to give due attention to this subject.
My responsibilities lead me to think that it is possible to put in place bodies that complement one another and are compatible with each other. Multi-tier governance in Europe must essentially be based on all sources of democratic legitimacy and must strengthen representative democracy in all its diversity. That imperative has been strengthened, to my mind, by the Treaty of Lisbon, and I should like today to express my satisfaction at France's recent ratification of the Treaty. Situations can change, and hope is often the greatest virtue, even in politics. So we have this paradox: notwithstanding the Dutch "nee" and the French "non" to the draft European Constitution, we have taken the Treaty a stage further and elicited a sense of urgency in respect of the need to ratify it. I think that is marvellous.
The place of second chambers in Europe is crucial to the political process, both nationally and at European level, I am sure of that. The arguments against second chambers are well known, admittedly. They bear repeating from time to time: second chambers cost the taxpayer a lot of money, are sometimes less democratic in the way they are elected, slow down the work of parliament because of the time they take to vote on laws passed by the first chamber. Those arguments are clearly over-simplistic. As I shall explain in this speech, second chambers consolidate and enhance democratic systems: they are part of the internal devolution process; they publicise legislative and political debate and help to ensure that account is taken of territorial interests and challenges.
But first of all let me stress that second chambers and national parliaments mirror our diversity. Just think of the various models of second chambers already in existence: the House of Lords, the Bundesrat , the French Senate. The very idea of trying to define categories or common denominators for these different bodies is daunting. As we have heard this morning, there is a huge diversity in the composition of second chambers across Europe. They vary greatly in their membership and the way in which their members are selected. In the Netherlands, the second chamber is called the First Chamber. The roles are reversed.
Sometimes one has to look at the countries of Northern Europe to find a logical pattern to the system. But in those countries too, second chambers differ in their remit and functions. I am convinced, ladies and gentlemen, that diversity is a special asset, peculiar to our continent of Europe, which enables us to benefit from one another's experience and so enhance our debates and co-operation. I think today's event and the many participants gathered here in the Senate are clear proof that you see things as I do. I also think that diversity should be reflected in national parliaments, to strengthen the work of representative bodies in Europe.
However diverse the sociological and political models and the history of countries may be, second chambers were all devised to serve as a counterweight. They offer a second chance for more mature and deeper reflection.
When it comes to law-making, second chambers have a wealth of experience; they are the expression of a deeper insight gained from a second reading of legislation which is essential to any democratic process in Europe.
Second chambers in the European Union that have a specific remit to represent units of the territory also make for a degree of balance between the centre and those units. This is very evident in federal states or states strongly committed to a process of regionalisation and/or devolution where the need for grass-roots democracy is constantly felt. It thus seems fundamental to me that bodies of devolved government must be given the means to act, in the form of appropriate powers and funding, but they must also be represented in the process of decision-making, both nationally and at European level.
With due respect for the institutional order of member states, the Committee of the Regions, some of whose distinguished representatives are here with us today, advocates devolution and local self-government, two pillars of European democracy that are constantly growing. Given that the powers of local and regional authorities in Europe are also growing, I think these authorities ought to be represented in their respective national parliaments, so that their voices can be heard and their interests upheld as effectively as possible. To that extent second chambers are players in devolution, in the broad sense of the term, and they are its promoters.
Some member states have also set up centres to monitor devolution. The Committee of the Regions cannot but applaud such initiatives. I am convinced that any state founded on local and regional democracy and the devolution of its powers needs a second chamber to guarantee dialogue between the centre and the periphery and, of course, proper interaction between the different tiers of governance.
The devolved role of national parliaments within the European Union has been a matter of debate for some time now. The advent of the new Treaty of Lisbon, endorsed by the European heads of state and government last December, means that the national parliaments are now rightly recognised as another channel, another essential pathway of democracy through which EU decision-making can be brought closer to ordinary people. The Lisbon Treaty will further strengthen the role of national parliaments within the European Union, giving them the right to present objections to proposed EU legislation. This is an accountability mechanism, providing enhanced scrutiny of the subsidiarity principle. The latter is a policy principle and the difficulty lies in converting this policy principle into a principle of law. The protocol on subsidiarity, together with the protocol on the role of national parliaments, both of which are annexed to the Lisbon Treaty, expressly state that second chambers are entitled to play a full part in the monitoring of subsidiarity. It provides that, where a national parliamentary system is not unicameral, the protocols apply to the «chamber» element. Thus second chambers can send reasoned opinions to the European Parliament, the Council or the Commission on whether or not the draft legislative act is compliant with the subsidiarity principle. Their ability to do this is essential, not only in strict and narrow legal terms, but also from the point of view of democracy per se . Under the new Treaty of Lisbon, national parliaments and second chambers will have the chance to influence decision-making at EU level, independently of their national governments, by eliciting a debate in the country. This offers them a golden opportunity to make known their reasoned opinions on decisions concerning the European Commission's annual legislative programme.
Ladies and gentlemen, monitoring subsidiarity, in the context of draft legislation, does not mean that that legislation is stalled or rejected. I do not think subsidiarity should be seen as something negative. On the contrary, I think the organisation of any monitoring system can actually trigger a wave of stocktaking by Europeans. When our parliamentarians are required to monitor European draft legislation in order to sort through it and understand it fully, they will have to prioritise European issues from day one. This principle whereby member state parliaments monitor the subsidiarity principle will strengthen democracy and the workings of the European Union. It will also make for better-quality European law. For the most part, national parliaments have reacted positively to these draft legislative acts. This, I believe, has only served to strengthen the legitimacy of European legislation.
On the matter of second chambers, the Lisbon Treaty and its protocol on subsidiarity and the diversity of parliamentary systems mean that national parliaments must consult their regional parliaments which have legislative powers. We have heard about the Belgian parliamentary system, whose areas of competence are not sufficiently guaranteed by the Treaty. My own region of Flanders thus asked the Kingdom of Belgium to add a declaration to the first, and then the second, Lisbon Treaty concerning the functions of the Belgian parliament. That declaration, annexed to the Treaty, defines very clearly the powers of Belgium's national parliament and indirectly those of the regional parliaments. The upshot is that all provisions applying to national parliaments are likewise applicable to regional parliaments. This declaration is crucially important to the regions in regard to the monitoring of compliance with the subsidiarity principle, because our regional parliaments have played a full part in that since 1985. As Mr de Puig said, the constant temptation is to create a new second chamber, and such a chamber has to combine two principles. The Belgian Constitution makes no distinction of primacy between federal and regional law, in their exclusive areas of responsibility. In a way, I like the idea of a Senate representing the regions and local authorities within a federal state.
Ladies and gentlemen, in view of all my previous political activities you will not be surprised to hear me say that I continue to place all my faith and trust in Europe as a system of governance and government at European, national, regional and local level. We must stop thinking in terms of a hierarchy of powers and start thinking in terms of a network, where all levels of government devise, propose, implement public policy together.
So co-operation is essential. It is the only conceivable modus operandi for fostering links between the various players and creating a system of multi-tier governance. We need to pay attention to legislation, in the countries of Europe, in the European Union, particularly when draft legislation is being discussed. The states and regions of Europe are keen to learn from one another's experience in order to improve their legislative work. To that end it is vital to improve European co-operation. Because good and well-drafted laws are the very cornerstone of our peoples' freedom and wellbeing.
The Committee of the Regions is keen to facilitate such exchanges. We are more than willing to advise governments here. There also needs to be effective co-operation between the Committee of the Regions and the national parliaments, because they will all have an important role once the Lisbon Treaty comes into force. The national parliaments will have to adapt their administrative powers and procedures. On subsidiarity they will face a challenge, since they will have to deal with Commission proposals within the eight weeks stipulated in the Lisbon Treaty. And most national parliaments have not yet developed a true culture of subsidiarity, or the administrative procedures needed to get to grips with this new monitoring function properly. The role of the Committee of the Regions in monitoring subsidiarity is well known, given the various opinions we have adopted since 1994, when the subsidiarity monitoring network was set up. So we are more than ready to play our part. The Committee will be consulted by the European Parliament on everything within its area of responsibility. Its powers in the legislative process will thus be strengthened. For the first time it will be able to refer matters to the Court of Justice in Luxembourg if it finds that a legislative decision breaches the subsidiarity principle.
At the moment there is already a measure of co-operation between the Committee of the Regions and regional parliaments. But I think that this, and the interaction between regional and national bodies, has to be strengthened. We have an excellent form of co-operation with our hosts of today, for example. The French Senate has from day one been involved in the subsidiarity monitoring network of the Committee of the Regions. As incoming President of the Committee of the Regions I am keen to intensify that co-operation. I would like to issue an invitation accordingly to all those who would like to co-operate with us, because it is not about competing against one another on law-making but of working more closely together. Under the various presidencies of the Committee of the Regions, my predecessors and I have visited many national parliaments. I have long been convinced that there is no need for any fighting amongst legislative bodies.
I intend to take this further during my presidency and to hold an annual conference at which representatives of national parliaments, in particular second chambers, can debate these matters. The first Conference on Subsidiarity organised by the Committee of the Regions was held at the Bundesrat , the second at the House of Lords under the British presidency. Why not hold the next one at the Senate, in Paris, during the French presidency?
Ladies and gentlemen, it is gratifying to see that second chambers are playing an increasing part in the process of European integration, and no longer purely at home, in the national context of the countries themselves, which are increasingly equipping themselves with a Commission or something like it to monitor all EU acts. Some countries relay the decisions taken by the European Commission direct to their regional authorities or have set up a unit within their representation to the European Union, the approach adopted by the French Senate.
And I have not forgotten that the Senate was involved in the European Convention which led to the European Constitution and this Reform Treaty. This dynamic will be taken further by the Lisbon Treaty, which strengthens the role of national and regional parliaments and, I believe, marks the start of a new era in the way we govern in Europe though local and regional authorities. I firmly believe we have to continue along the road of this multi-tiered Europe, with its diversity and singularities. Our approach will, we hope, lead to a deepening of the European Union as we want it to be - a political union of the people.
Thank you, ladies and gentlemen.
Mr Yavuz MILDON
Thank you, Mr Van den Brande. As President of the European Union's Committee of the Regions I am sure you have your work cut out in this area. We are more than happy to co-operate with you.
A slight change now in the order of speakers. We welcome next Mr Sergio Bartole, member of the Venice Commission and professor at the University of Trieste.
Mr Sergio BARTOLE (Italy), member of the Venice Commission, Professor at the University of Trieste
Bicameralism has always been a peculiar and crucial aspect of the Italian system of government. The justification of the choice made by the Constituent Assembly in the matter has not easily been accepted by the legal doctrine, and the commentators frequently underlined the difficulties caused by the presence of two Chambers of the Parliament. The legislative decision making processes are complicated by the constitutional provision requiring the approval of the same legislative deliberation by both the Chambers: it happens frequently that a proposal of a law, approved by one Chamber, has to be submitted again to this Chamber because the another Assembly modified the text previously adopted, and the story can go on if the differences between the two Chambers persist and a solution is not found. Therefore it is understandable that the problem of the reform of the bicameralism has been present at the attention of the legislators and of the doctrine since the entry in force of the Constitution and, therefore, since the very beginning of the Republic. It is also true that the practicability of a reform of both the Chambers or, at least, one of them has been conditioned by the fact that a possible reform of the bicameralism could in any case affect the equilibrium of the relations between the political parties and inside them. Day by day the politicians have been getting well acquainted with the arrangements of the bicameralism presently in force, and it has been difficult to convince them to initiate a process of revision of the relevant provisions of the Constitution. When such a decision was adopted, it frequently happened that the discussion concerning the difficulties of a bicameral decision making process was immediately complicated by the submission of questions concerning the membership of the Chambers, and specially of one of them, the Senate. The idea of enlarging the scope of the debate was and is correct and legitimate, but, taking in consideration the lesson of the history, we get the feeling that it has been at the same time and frequently used as a pretext for delaying the concrete adoption of the solution of the urgent practical problems. Therefore the development of the debate on the Italian bicameralism has often been the story of hollow discussions which did not produce any positive results.
The bicameralism at the Constituent Assembly
The debate at the Constituent Assembly started with the acceptance of the principle of the bicameralism: only some left oriented political parties supported the idea of the monocameralism on the basis of the doctrine that the national political representation cannot be dual: the people is one and one has to be its representation, they said. But the other political parties supported the idea that bicameralism guarantees a better considered adoption of the parliamentary legislation, as far as the existence of a second Chamber offers the possibility of rethinking questions apparently settled and of giving adequate consideration to interests previously dismissed or forgotten. The choice, as it often happens with all the choices of principle, did not offer specific suggestions concerning the structure of the bicameralism, and specially the membership of the second Chamber. It was clear that one of the Chamber of the Parliament should be elected in compliance with the principle of the general national political representation by all the citizens alongside their preference for the concurring political parties, without giving any relevance to territorial or socio-economic differences. If the second Chamber had to be entrusted with the task of insuring a better considered adoption of the legislation, which composition should be adopted in view of a positive implementation of this design?
A second Chamber can offer a contribution to the improving of the legislation, if its members are in the position of representing interests which are different from the interests represented by the national general representation present in the another Chamber, or they are able to offer the baggage of specific experience and knowledge.
The debate followed this line of inspiration and many proposals were submitted in view of the differentiation of the membership of the two Chambers. As a matter of fact all of them were rejected and, when the Constitution was adopted, the only differentiating element which remained in the text regarded the ages of the voters and of the possible candidates. All the voters who, on the day of the elections, have attained the major age are allowed to vote for the Chamber of Deputies, but only those who have attained the age of twenty five are eligible to be deputies. Instead senators are elected by the electors who have completed their twenty fifth year of age, and have to be at least forty years old (Articles 56 and 58). Both the two Chambers are elected by universal and direct suffrage. Evidently the opinion prevailed that the differences of age were sufficient elements to insure a well considered second reading of the legislation by the Senate. But the Constitution does not provide for the priority of one or another Chamber in the examination of the draft bills of law because they have an equal status in the system of government. It means that not only they have equal powers in the field of the legislation (Article 70), but also that they take part on an equal footing to all the political decisions even when the relations between the Chambers and the Executive are at stake, and - for instance - the granting or the withdrawal of the confidence of the Parliament have to be adopted (Article 94).
Therefore the Constituent Assembly did not accept the idea of having a second Chamber organized according to the principles of the economic and social representation, even if it could have been connected with elements of territorial representation. When the Constitution was adopted the Senate had to be elected for six years and the Chamber of Deputies for five years, but a constitutional revision adopted in 1963 cancelled even this difference. The idea prevailed that the membership of the Senate should fundamentally match the features of the Italian political system and the role of the political parties in its frame. Political parties did not accept any possible intermediation between themselves and the voters: this has been and will be a constant trait of the political debate about bicameralism in Italy. When a possible election of the senators through economic or social organizations or by local government bodies was at stake, they always defended their own prerogative to be the mediators between the electorate and the representative bodies of the State. The point specially deserves to be underlined if we take in consideration the fact that - at the same time - the Constituent Assembly introduced and mandated the parliamentary legislator to implement the devolution of a part of the national State's powers to the newly created Regions. If the Regions had to have a relevant political role, they should have been entrusted not only with their own legislative functions in matters of local relevance, but they should have been allowed to take part in national decisions, at least as far as there had been a connection between the national and regional interests. A Senate's membership directly or indirectly elected by the participation of the regional governing bodies would have insured to the Regions the possibility of influencing the relevant national deliberations. But the members of the Constituent Assembly were afraid that such a solution could not only modify the equilibrium between the political parties but could be also interpreted as a first step toward the creation of a federal State, which they were not ready to accept: as a matter of fact, the advent of the regional institutions was seen as an alternative to a federal choice, because it was apparently coherent with the idea that « the Republic, one and indivisible, (only ) recognise and promotes local autonomies « (Article 5) and is not made up by the Regions and the other local territorial entities. Therefore the constitutional provision according to which the Senate is elected on a regional basis (Article 57) has been always interpreted as regarding the dimension of the electoral districts only.
Proposals of reform: the differentiation of the functions of the two Assemblies
The choice made by the Constituent Assembly deeply influenced the debate on the Italian bicameralism in the next years. The difficulties and the length of the legislative decision making processes, on one side, and the duplication of the functions exercised by the two Chambers, on the other side, were at the centre of the debate.
In the meantime, while a constitutional revision was carried on to amend the original choice which differentiated the duration of the Chamber of Deputies and the Senate, new elements of differentiation were not introduced. In the Senate are not affected by the rule of the periodic electoral renewal only the five senators who may be appointed for life by the President of the Republic among citizens who have brought honour to the Fatherlands, and the past Presidents of the Republic who are senators by right and for life unless they renounce the seat (Article 59). But the practical implementation of these provisions and the mentioned minor changes did not affect the development of the discussion on the possible differentiation of the functions of the two Chambers.
Especially in the years '60 of the past century the idea of a division of functions between the two Chambers was discussed by the political forces and by the legal doctrine. The Chamber of Deputies should have retained - it was said - the power of the establishing, in coordination with the Cabinet, the main political guidelines of the State, leaving the exercise of the functions of political inspection to the Senate. This could have been a de facto solution without any revision of the Constitution; it could have be adopted by the parliamentary standing orders and had not implied any intervention in the equal participation of both the Chambers in the exercise of the legislative function. But it was a solution which did not take into account the fact that legislative functions, political decision making powers and political inspection attributions cannot be separated because they are expression of the unitary role of the Parliament, and therefore of both the two Chambers. As a matter of fact it happened that parliamentary internal rules were effectively partially modified, but the reform did not produce any relevant positive result. The membership of the two Chambers was based on the principle of the general representation through the political parties and the deputies and the senators were not ready to give up a part of their prerogatives and accept a reduction of their political authority.
In 1990 a new proposal of reform did not get better results, it was never accepted by the legislator. Its aim was the division of the work between the two Chambers without distributing the legislative matters according to a line of separation of competences. Only a restricted number of statutes had to be equally approved by the two Chambers (that is constitutional laws, electoral laws, ratification of the international treaties, State's budgets, delegation of legislative function to the Cabinet and transformation of a decree in a law), while in the other cases the approval by one Chamber was sufficient if - in fifteen days - the another Chamber did not ask to examine it. The splitting of the legislative function was not accepted, the principle of the bicameralism - it was said - did not allow a system which consented to the renouncing of the exercise of the legislative function by a Chamber, the guarantee of a well considered adoption of the legislation could not be disposed of so easily.
Day by day it was easy realizing that a reform of the bicameralism was possible only in the frame of a reform of the State. Therefore the problem was dealt with in the years '90 by two parliamentary bicameral commissions explicitly created to prepare a draft proposal for the revision of the Constitution. Special attention deserves one of the proposals which were submitted but not approved by the two Assemblies. It regards the transformation of the Senate in a s.c. Chamber of the guarantees. The proposal drew inspiration from an old idea of the legal and social philosopher von Hayek, according to which the socio economic legislation should be kept in the hands of the Chamber elected by all the citizens according a system ensuring a general proportional representation of all the political forces, while the second Chamber - elected with a clear preference for a system insuring a membership made up by the oldest and most experienced citizens - should deal with the implementation of the Constitution, the organization of the State and the protection of the fundamental rights. But in the draft of the bicameral commission the division of the work between the two Chambers did not follow the line of the design envisaged by von Hayek: the approval of both the Chambers was still required for some legislation, and the guaranteeing functions of the Senate specially regarded all the appointments of constitutional relevance entrusted to the Parliament (constitutional judges, members of the superior council of the judiciary, high administrative authorities, and so on) only. It was a very restricted idea of the constitutional guarantees. Moreover the Senate should be elected according to a proportional electoral system, while the gerontocracy envisaged by von Hayek was not taken into account because of obvious reasons. This choice evidently was a clear rejection of a conservative aspect of the design, but at the same time there was not space for differentiating the two Chambers, notwithstanding that the Senate could not be dissolved and it was not competent to deal with the responsibility of the Cabinet and the adoption of the guidelines of the general policy of the State.
The representation of the autonomous regional and local entities
As I explained in the previous pages, during the activity of the Constituent Assembly the political parties which specially promoted and supported the establishment of the regional autonomies, tried to connect the solution of the problem of the membership of the Senate with the research of a representation of the new territorial entities at the parliamentary level. Their proposals were rejected and the justification of this decision as well as the their rationalization by the legal scholars were routinely based on the distinction between the Italian Republic, which was defined a regional State, and the model of the federal State, which only required the presence of a second Chamber entrusted with the task of representing the member States, whose constitutional status and powers could not be compared with those of the Italian Regions. A regional second Chamber was seen as a continuation of the residual sovereign powers of the constituent entities of a federal State, sovereign powers which the Italian Regions - the quoted doctrine said - don't have. Therefore the constitutional position of the Regions did not require in principle their participation in the national legislative decision making processes, participation which was, instead, an essential features of the constitutional role of the member States of a federation. In the Constitution we can find a sign of this debate in the provision according to which «the Senate of the Republic is elected on a regional basis «(Article 57), which was not interpreted as necessarily requiring that the senators have to be representatives of the Regions: as a matter of fact, the rule that the senators have to be elected by universal and direct suffrage by the electors (Article 58) was used as conditioning and restricting the construction of the mentioned Article 57, which could be read only as a rule providing for a regional dimension of the electoral districts.
But the terms of reference of the Italian constitutional debate have been changed since the day of the entry in force of the republican Constitution. In the meantime the concrete institution of the Regions has favoured an enlargement of the regional powers: everybody can realize today the growing connection of the activity of the Regions with the economic and social policies of the central State. The links between the respective activities require a coordination which can apparently be only the result of relations of collaboration between the State and the Regions, collaboration which require the common participation in a decision making body, which could be a regional Senate. It can be easily understood that the developments of the regional autonomies gave a new input to the discussion about the membership of the Senate, especially when the Parliament and its commission were dealing with the general problem of the reform of the State. And the reform of the State has been at the centre of the attention since new proposals for the transformation of the regional State into a federal State were submitted to the political parties and the public opinion. As it is evident, the problem of the differentiation between the Italian Republic as a regional State and the federal States has been at stake again in a discussion where the clarity of the concepts used by the participants in the discussion has been missing and the politicians have been adopting the federal terminology only for exigencies of propaganda, that is spreading false or exaggerated statements about their programs in order to gain the support of the electorate.
Elements for understanding the developments of this discussion can be drawn from a remark of Hans Kelsen in his General Theory of Law and State. He correctly underlines the fact that the developments of a traditional federal States frequently imply a strengthening of the central State and - therefore - a growing importance of the organization of the central government. In this perspective the existence of a Chamber of the Parliament whose membership is made up by representatives of the constituent entities of the federal State, has special relevance. In some way we can say that, while in the past a State had a federal second Camber because it was a federal State, today it frequently happens that only a State which has a federal (or regional) Chamber is considered as a federal State. When a constitutional reform is in the agenda of the Parliament, territorial entities which are getting a representation in one of the Chambers of the national Parliament and are allowed in this way to participate in the decision making process of the national government, can envisage a change of their constitutional position in connection with an explicit or implicit reform of the constitutional order of the State itself. This is the development which is supposed to take place in Italy: the Regions are probably conscious of the difficulty of establishing a clear division of powers between themselves and the central State and, therefore, they see in the creation of a regional Senate an useful constitutional arrangement for an enlargement of their powers and for their participation in the national decision making processes.
But the choice of establishing a second Chamber representative of the Regions is only a choice of principle because different solution can be adopted about the membership of such an Assembly. The study of the comparative constitutional law offers us different alternatives, which differently affect the way of the regional representation. In Italy a solution which was specially appreciated by the Regions, was offered by some scholars who looked at the German constitutional experience and proposed the creation of a regional Chamber similar to the Bundesrat, that is a Chamber made up by the representatives of the regional Executives, which are supposed to be better acquainted with the concrete problems of the relations between the Regions and the State. This solution obviously entrusts the representation of every each Region to the political majority which has the control of the Executive of the interested Region, but it does not insure the presence of the political minorities which are not present in the regional cabinets. Moreover the political parties should be excluded from the processes of the appointment or election of the members of the second Chamber who have to be members of the regional cabinet. The policies aimed at the general interests of the regional territorial entities should be substituted for the individual policies of the political parties, which complain and claim that such a solution implies the postponement of the national, general interests to the particular local exigencies of the Regions. Moreover the establishment of a connection between the regional executive functions and the parliamentary membership could deprive the personnel of the political parties of a chance of political promotion.
As everybody knows, the political parties have an important, if not exclusive influence in the legislative work of the Parliament, and also in the constitutional reforms. It is easy to understand why the creation of an Italian Bundesrat was abandoned and new proposals were submitted to the attention of the legislators. The members of the second Chamber have to have a regional connection - it was said - but they have to be elected directly by the people on the basis of candidatures submitted by the political parties in the separated frame of every each Regions. The role of the political parties remained untouched and there was not a substantial modification of the constitutional provisions presently in force. That the preference of the political parties displays a relevant influence was demonstrated by a draft of complete reform of the second part of the Constitution (that is, the part dealing with the organization of the State), which was adopted in 2004 - 2006 and provided for a similar solution, according to which the senators had to be elected in the frame of the Regions directly by the people at the same time of the election of the regional assemblies. But this draft, which for the first time had had the approval of both the Chambers, notwithstanding the confused complexity of the division of the powers between the two Chambers, was rejected by the people by a referendum called in 2006. In the meantime it was not implemented the provision of the constitutional law adopted in 2001 allowing the standing orders of the two Chambers to provide for the participation of representatives of the Regions and local government authorities in the working of a bicameral committee for the regional affairs.
Recently a Commission of the Chamber of Deputies was working to prepare a new draft for a partial and limited revision of the Constitution. It will not have a follow up because of the dissolution of the Parliament, but it could be interesting to underline the new choice in the matter of the membership of the Senate, which was called «federal senate», with evident concessions to the propaganda and to the wishes of the Regions but without any change in the distribution of powers between them and the State. It provided for the election of the senators by the legislative assemblies of the Regions and by the regional councils of the local government authorities. The adopted model is apparently similar to the model of the federal council established in Austria, and, if accepted, it could have produced the same results. It is well known that - according to the opinion of the legal doctrine - such an arrangement postpones the attention for the interests of the federal entities to the exigencies of the policies of the political parties, which have a relevant part in the nomination and the election of the members of the federal council. In any case some commentators have welcomed this choice and see it as a first step in the direction of a major participation of the governing bodies of the Regions in the formation of the Parliament. Moreover the draft provided for the collective approval by the two Chambers of a restricted number of laws only, reserving the priority of the decision in the other fields to the Chamber of the Deputies and entrusting to the s.c. federal Senate only the approval of the framework legislation aimed to establish the principles of legislation to be adopted by the regional legislators in the matters assigned to their competence.
Conclusions: a summary and new perspectives of the constitutional debate
My report is the story of many failures. The Italian political parties have not been ready to give a place to the regional and local territorial autonomous entities in the process of the formation of the second Chamber. They have seen the decision making processes of the national policies as their own prerogative, they have wanted to keep their role of the mediators of all the relevant national interests and they have not accepted - even in the recent draft - the idea of entrusting the research of a balancing of these interests to negotiations and agreements to be made by the representatives of territorial entities in the frame of a reformed Senate, at least as far as the matters given to the competence to the Regions are at stake.
Until today the debate has privileged the problem of the membership of the second Chamber notwithstanding that the problem of the efficiency of the legislative procedures is considered as one of the main difficulties of the present situation of the Italian constitutional organization. As a matter of fact the existence of two Chambers with equal powers in the field of legislation is a factor which seriously reduces the capacity of the Parliament to give immediate and quick answer to the socioeconomic exigencies of the State. Perhaps it could be advisable adopting a monocameral system of government. In any case it is true that practical and constructive solutions are difficult to be found, the postindustrial society presents complexities which cannot be easily dealt with by a State which has only recently abandoned the old principle of the centralistic approach to the exercise of the power and is not able to elaborate a correct distribution of functions between the central authorities and the periphery. The difficulties affecting the relations between the State and the Regions have also an impact on the identification of the respective role of the two Chambers in the processes of the legislation.
A realistic approach to the issue of the participation of the Regions in the national legislative processes could also suggest new choices. Recent studies on the functioning of the Conferences of the Regions whose work in coordination with the executive organs of the State (Cabinet and ministries) have demonstrated that these bodies are able to perform a representative role of territorial autonomous entities without passing through the intermediation of the political parties. The authors of these studies share the doubts on the possibility to get a synthesis of the general interests in the Parliament which could counterbalance the centralistic approach of the Cabinet. The powers of the Cabinets are growing up in the contemporary constitutional systems and therefore the Regions (or similar entities) can truly have a say in the decisions of the State as far as they are able to negotiate and adopt agreements directly with the executive organs of the State. Conferences are supposed to be better situated to offer a cooperative link between Regions and State than a Senate of the Regions. The Conferences can be a meeting point between the national and regional executives which are the main actors of the respective policies.
It is evident that those who clearly show a preference for an arrangement which bypasses the problem of the reform of the second Chamber have in mind the example of the German Bundesrat which is supposed not to be a true legislative assembly and to perform a function in favouring the collaboration between federal entities and central authorities. But there is a problem: is it possible envisaging an arrangement of the relations between State and Regions which don't require the adoption of a specific legislation? It is true that the European regulations and directives, whose adoption is controlled by the national Executives, are frequently taking the place of the national legislation. But the competence of the European authorities are not completely overlapping with those of the national and regional bodies, whose correct functioning requires a Parliament to establish the frame of their activities and adopt the guidelines of the policies which have to be implemented by the State and have to be integrated and completed by the regional and local entities. The preference for policies exclusively decided by the executive bodies does not offer a complete guarantee of a correct functioning of a system of government which is democratic as far as it is representative. And only in the Parliament representative exigencies are truly satisfied. Therefore the problem of the reform of the second Chamber in the frame of a design of strengthening of the regional autonomies remains a relevant issue in the debate on the constitutional reform.
Mr Yavuz MILDON
Thank you, Mr Bartole. You have given us not only an account of the system in place in Italy, but also some useful ideas for other countries planning to establish a second chamber. Some countries see the upper house simply as a chamber for second readings. I think we shall be staying in touch with you in connection with follow-up to this conference, Professor. Thank you again for your contribution. I now hand over to Mr Fabio Pellegrini, First Vice-President of AICCRE (the Italian section of the Council of European Municipalities and Regions).
Mr Fabio PELLEGRINI, First Vice-President of AICCRE (Italian section of the Council of European Municipalities and Regions)
It would be hard to improve on Professor Bartole's account of the historical, legal and institutional position in Italy. And I do not want to repeat points he has already made, so I shall probably depart slightly from the paper I have prepared. I shall merely offer you a few scientific, legal and above all political considerations.
Mr Chair, first of all I must convey the apologies of Ms Mercedes Bresso, the President of AICCRE. And now, in an effort to continue along the lines pursued by Professor Bartole, I would like to talk about one element of the institutional set-up in Italy. In 1947, when the country approved its Constitution, it was emerging from twenty years of fascist rule, of dictatorship. That situation influenced the formation of the constituent assembly at the time, making it keen to seek a balance in the scrutiny of its powers to avoid any risk of excessive power. At that time separatist movements were rife and five out of twenty regions were given more powers than others, under special statutes. This arrangement was designed to take account of certain characteristics specific to Sicily, Sardinia and regions with sizeable linguistic minorities such as Friuli-Venezia Giulia and Trentino-Alto Adige. The idea was to take account of these various exceptions and sensibilities, which were a hangover from the previous sixty years.
This situation gave a certain rigidity to the Italian constitutional system. Over time there were of course many changes, with the creation of the regions in 1970 and subsequently a major reform of the Constitution. One of the leading players in that reform and the work of parliament, MP Andrea Manzella, is with us today. I cannot deny that I am nervous talking about this subject in the presence of someone who knows so much about it and has been so active in this area.
Over time we came to see that this search for balance and guaranteed parliamentary democracy had its limitations. Realisation also dawned of something which was being widely said at the time: the effectiveness of the institutions was limited. As Professor Bartole said just now, we saw the country's law-making becoming more and more unwieldy. I am a local councillor and part of an umbrella group of local and regional authorities whose members are fairly "corporatist", though the term is ill-chosen because it has negative connotations. We represent certain sectors and try to counterbalance excesses of power by a more general vision, within the wider European framework. Our association is Europe-wide, and we operate at European level.
In 2001 one law passed as part of the reform of the Constitution was of fundamental importance. It brought about a real change in the country's constitutional set-up by totally reversing the previous concept whereby government priorities were determined first at central level and then lower down the line at regional and municipal level. The regions were given a number of legislative powers.
As of the 2001 reform, the situation is the other way round entirely, casting doubt on the validity of this model. The Italian Republic is made up of municipalities, provinces, cities, regions and the State, a whole range of self-governing authorities each of which has its own statutes and functions in accordance with principles set out in the Constitution. Subsequent to the reform, the State of course retains responsibility at national level for the currency and coinage, justice, foreign policy and defence. But all administration is transferred to the regional authorities, municipalities and provinces. The regions hold all the powers - they no longer rest with central government. For regional authorities this is a veritable leap forward. Thanks to a number of decrees aimed at administrative devolution, we have taken things much further, even if the 2001 reform did stop short of the Senate.
Decrees were passed in anticipation of this situation. A former minister, Mr Bassanini, was instrumental here. He is currently part of a working group in France appointed by the President of the Republic. At the time, through a series of decrees named after him, he introduced a radical reform of State administration. All the provisions on devolution from the centre, and reform of the Constitution, progressed thanks to him. But there was no majority in parliament for reforming the Senate. So the obstacle was overcome by the establishment of hybrid committees, made up of representatives of the State, the regions and cities. It was all very controversial. A separation of powers was envisaged between the regions on the one hand, and the cities and municipalities on the other, with the State keeping a few cards in hand to deal with municipal and regional issues.
The Interior Minister of the time, on behalf of the current President of the Republic, set up three Parliamentary Commissions, beginning with one for the regions and then one for the cities, which had started to protest. Lastly, a third Commission brought together the three levels: the State, the regions and the local authorities. We understood that the system was out of balance and that we had to decide to allow the regions and local authorities to deal directly with the government to resolve this problem. It was doubtless a solution by default and we finally accepted that the best way would be to have a federal Senate.
After everything I have heard so far, I offer two points for your consideration. The situation appears contradictory. We are asking the senators to vote through a reform against themselves, which reduces to nothing an institution of which they are members. Obviously they would like to stay there and be re-elected. This problem is not exclusive to Italy and does not appear to be insoluble. A number of cut-off dates need to be set.
I personally am all for the decision taken by the Constitutional Affairs Committee of the Chamber of Deputies. It was approved after an interminable debate and entails the establishment of a federal Senate, a body representing the regions and local authorities.
On the plan to dissolve parliament, the Chamber of Deputies unfortunately suspended everything and undid all that had been done, so the next legislature will have to pick up where we left off. The debate had taken a long time and we had finally seen light at the end of the tunnel. The Italian constitutional system is such that discussions can remain stalled for a long time. We are all agreed that there is no point having both chambers read every piece of legislation, and we shall move forward on the basis of that consensus.
I knew Mr Maranini in Florence. He did not see this solution as a threat. He saw it as a source of hope, and so do I. The regions have certain types of links to the European Union and can obtain money from the Structural Funds. So this link with Europe has strengthened the role of regional authorities. Local and regional institutions are closer to ordinary people. So why not give them powers? Are we afraid that that will cause the system to implode? Federalism is in no way a threat to the unity of the state. In fact federal states are far more united and strong than the rest. This morning we were listening to our Swiss colleague. He said that the Swiss (Con)federation is very sound and united, far more so than Italy.
Federalism favours a united state. When centralised states are failing, it becomes necessary to let go and not try to strengthen central power. In my view there is no contradiction between federalism and a unitary state.
I would like to go back to something Mr Van den Brande said. Whilst I welcome his appointment as President of the European Union's Committee of the Regions, I do not always agree with him and I do not share his view that national parliaments should be involved in European law-making in order to guarantee good-quality legislation or a consensus on European matters. I do not agree with him at all there. I think the result would be quite the opposite.
Mr Giscard d'Estaing, during his presidency of the "Convention" to which you alluded, frequently complained at the end of meetings about how much the presence of representatives of national parliaments slowed down decision-making. Their approach to the Constitutional Treaty was restrictive, being based on a purely national view, and prevented the text from acquiring a more unitary and European dimension.
I think we are in the same position over the new Treaty. In Italy some powers, notably in regard to education and training, agriculture, the environment and tourism, are entirely devolved to the regions. How can parliament take account of powers which it does not have? Regional representation would broaden the horizon beyond the national view, and would ensure that the subsidiarity principle was upheld. We should not consider the regions one by one, but rather the system as a whole. The President of the Committee of the Regions has his work cut out, and the same will be true in the future. His job will be a tough one. We have far more confidence in enhanced action by the Committee of the Regions than in anything the national parliaments may do.
We could go on discussing these things for ever, without ever finding one parliamentary model that is perfect for every member state of the European Union. But one thing is certain: representation of the EU member states cannot be left in the hands of the government executive. I am in favour of having a second chamber. Governments may make the laws, but we have a European Parliament, thanks to which States are no longer represented by governments, but in a far more democratic way. They are represented by the country as a whole and not by their national executive alone.
Procedures have to be simplified. We must be careful not to complicate things. We ought perhaps to allow the people and the regions to have their say through local and regional authorities.
Thank you.
Mr Yavuz MILDON
Thank you very much, Mr Pellegrini. You have given us a very vivid picture of the Italian system. We have followed the lively debate on devolution and regionalisation in Italy with interest. I now welcome the Polish Ambassador, Mr Orlowski. I shall invite him to address us straight away. He is speaking on behalf of Ms Hanna Suchocka, Vice-President of the Venice Commission and former Prime Minister. Ambassador, you have the floor.
His Excellency, Tomasz ORLOWSKI, Polish Ambassador to France
The bicameral tradition in our parliament only ended after World War II, when the Communist Party took power in Poland and abolished the upper house, or Senate. Why did it do this?
First of all the Senate was perceived as a chamber which represented elite groups, and this was not reconcilable with the communist system and a people's democracy. Moreover, all the communist countries adopted a unicameral parliamentary system, apart from some federally organised ones such as the Soviet Union, Czechoslovakia and Yugoslavia, which had bicameral parliaments. In the others, the unicameral system prevailed.
After the collapse of communism in Central and Eastern Europe in 1989 the debate on bicameralism resumed. Some countries decided to adopt a bicameral parliamentary system. Poland was one of them. For Poland that decision was symbolic of a return to its tradition as an independent state. The referendum held by the communists in 1946 had as its first question: " Are you in favour of abolishing the Senate? " That referendum, on the basis of which the communists abolished the Senate, was quite simply rigged. In order for Poland fully to regain its sovereignty, it had to have a body that represented its institutional traditions, the Senate.
We should remember too that Solidarnooeæ , a trade union movement to begin with and then a social movement, was founded in 1980. The trade union developed a line of thinking on the place of self-government by collective bodies, regional or local authorities, but also occupational and workers' groups. It was active in 1980, when no one yet dared to contemplate the fall of communism. It proposed the introduction of a Chamber of Self-Management, which would sit alongside the national parliament, dealing with matters other than policy alone and giving a voice to the socio-economic aspirations of the people. That plan was naturally abandoned when martial law was introduced in December 1981 and the country was placed on a war footing.
In February 1989, when the communist government decided to negotiate Poland's political transition in the famous "Round Table talks", the question of bringing back the Senate soon arose. This meeting crystallised the negotiations between the communists and the democratic opposition: this point in time had a momentum of its own which its instigators had not foreseen. So some proposals surfaced quite unexpectedly, amongst them the proposal to restore the second chamber, parliament's upper house - the Senate.
The communists suggested to the opposition that the job of head of state be restored, with the title "President of the Republic". They authorised a move to partially free elections: two-thirds of the seats would be reserved in advance for the sitting communist government, and one-third for the opposition. And a system of checks and balances was introduced, with the head of the executive taking over as President of the Republic and a parliament which remained unicameral, and whose decisions could be suspended by the President.
The opposition wanted the legislature to be enhanced by the creation of a second chamber, so that elections could be more open. The Senate should be elected completely freely and without bargaining, and its legislative power would enable it to act as a counterweight to the office of President of the Republic.
The Senate, born in 1989, was thus a purely and deeply political chamber. It was not a chamber for making policy, or for representing the regions, but a political chamber. Its nature has changed very little to date. It is still a political second chamber. It helps to improve the work of law-making and retains its own legislative power, but does not represent regional authorities.
In the inter-war period, under the Second Republic, the Polish Senate was already a political chamber. So there was no reason to suppose that it would change, even though Solidarnooeæ wanted a chamber representing economic and social groups, a kind of economic and social council on the French model.
The Senate, elected in 1989, was chosen as a political assembly on the basis of a special electoral law which closely - and very artificially - followed the American voting system. We got a Senate with 100 seats, like the US Senate, based on 49 constituencies: administrative units comparable to the French départements . Each voivodship, or district, had the right to elect two senators, except for the two most populous ones, Warsaw and Katowice. These had three seats each, making a total of one hundred senators.
The single-round majority voting method was not chosen in the light of the powers and responsibilities of the Senate. We simply opted for this American method because it seemed to be the simplest.
The Senate elected in 1989 played a major role in the legislative process during Poland's transition. But, very soon after its re-establishment, moves surfaced to modify it and so distinguish it from the lower chamber. Three ideas were mooted: the first was that the Senate should be made into a chamber that represented all the self-governing structures in Poland - local and regional authorities, and economic and academic corporate bodies. This proposal was consistent with our traditions. For example, it was customary for the university senates of Cracow and Warsaw to put up candidates for membership of the national Senate. The system made no distinction between territorial units and socio-economic units.
The second suggestion was that the Senate should become an economic and social chamber. This type of body exists in the form of economic and social councils, as I indicated just now.
The third suggestion was for a Senate whose sole purpose was to represent local and regional authorities.
It was decided that members of the Senate would be chosen in general elections, so that the institution would continue to be a national one and not a chamber simply representing local authorities.
During the debate one aspect was constantly emphasised: if the Senate became a chamber representing regional, local or occupational groups, there was a risk that it would become a forum of group interests and that this would encourage the rise of lobbies. But it was imperative to maintain the chamber's prime role of being part of the legislative process at national level.
In 1993 the ruling post-communist party proposed, during its election campaign, that the Senate be transformed into an economic and social chamber. The aim was to depoliticise it and prevent it from once again becoming a somewhat elitist body, as it had been in the past. To a party of the left, I imagine this must have been extremely important.
A second proposal, put forward shortly afterwards in 1995, came from the Peasant Party, an ally of the post-communists in the government of the time, but currently in coalition with the Liberal government. The Peasant Party suggested merging the Senate with another institution: the National Assembly of Local Government (KSST). It so happened that the President of the Senate, whom we call "Marshal" in Poland and who was a member of the Peasant Party in 1995, was at the same time the elected President of that Assembly. The Peasant Party was thus keen to take advantage of that fact to make the Senate into a true chamber of regional representation.
But there was a stumbling block. On the one hand the National Assembly of Local Government had its own special form of administration. And on the other hand the Senate was a national institution and not an emanation of co-operation by the country's municipalities and territorial units. In fact, the extraordinary parliamentary commission charged with drafting the Constitution did not consider any plan to transform the Senate into a chamber that represented local and regional authorities. There were too many doubts as to the role of such a chamber. And an initiative of this kind carried too many risks. It was feared that the Senate might come to represent private interests, to the detriment of its national duty of law-making.
So the Polish Senate has retained its role, made clear in a declaration last year. The sixth legislature stated that it stood firmly by the reform of local and regional authorities, which had led to successful devolved government in Poland. Devolution has worked impeccably for ten years now. On the occasion of this tenth anniversary of the devolution law, the Senate declared itself the "patron" of the regional authorities. Not in any legal sense, but in a wish to stress the link that exists between them and the Senate.
Thank you, ladies and gentlemen.
Mr Yavuz MILDON
Thank you, Your Excellency. We know that devolution works well in Europe. We are happy to have amongst us a Polish senator, a member of our Congress and a former member of its Bureau, Mr Leon Kieres. So we have an ongoing link to the Polish Senate.
I now hand over to Mr Miljenko Doriæ, member of the Parliamentary Assembly of the Council of Europe and a member of the National Parliament of Croatia.
Mr Miljenko DORIÆ, member of the Parliamentary Assembly of the Council of Europe, member of the National Parliament of Croatia
Mr Chair, distinguished guests, ladies and gentlemen,
I shall try to be far briefer than my colleagues. My presentation is divided into three short stories about South-Eastern Europe and if you remember just one thing from all of my presentation, let it be this: these three stories reflect the development of local and regional authorities in this part of Europe.
The first story will be on decentralisation in the new democracies after the fall of the Berlin Wall, the second one on good governance and finally the third story on the need to improve the relations between national, regional and local authorities.
First story: In the 1990's as the new democracies became full members of the Council of Europe they were obliged to sign, ratify and implement the European Charter on Local Self-Government (ECLSG). By doing so, the previously very centralised states, established local and regional self-government, decentralised political powers, brought the decision making process closer to the citizens and enabled them to directly elect their representatives. By my opinion the ECLSG contributed to the democratic process in the new democracies more than any other document in the last two decades. Even in the most difficult situations, for instance, during and after the war in the Balkans it was the local and regional authorities that came together first, started rebuilding the damaged infrastructure and commenced economic and cultural cooperation far before the national authorities. This first story on decentralisation is no doubt one of the most successful stories in Europe's recent history.
Second story: During the last 10 - 15 years citizens were not always satisfied with the way local and regional authorities were dealing with public affairs. Transparency, efficiency, ethical conduct, competence and responsiveness of local and regional representatives were sometimes mentioned in a negative context. Taking this into account the recent initiative of adopting a Strategy on Innovation and Good Governance at Local Level, represents a very important new phase in the development of local and regional democracy in Europe. The draft text of this Strategy was discussed in Valencia several months ago and hopefully will soon be adopted. While the ECLSG pressed on the national authorities to decentralise, the Strategy on Innovation and Good Governance insists that the local authorities themselves must comply with the 12 principles on which the Strategy is built.
Ladies and gentlemen, if the Strategy be equally successful as the Charter, this will no doubt be another great contribution to democracy in Europe.
Finally, the third story is the story on the need to facilitate co-operation between the three levels of governance. Because even if the State is decentralized and even if the local and regional authorities are doing their best, optimal results can be acheived only if there is vertical co-operation and co-ordination between all levels of governance. Since non of the countries of the Western Balkans have a bicameral system enabling a balance between the centre and the State's geografical components, different attempts and approaches have been made to acheive this balance. Here are some examples:
- Local and regional authorities have established associations to have a stronger political position when communicating with the national authorities.
- Parliaments have established Committees that contact the local and regional authorities before adopting legislation which concerns these authorities.
- Some Governments have established Ministries for Local and Regional affairs.
- Two new Euroregions have been founded (Adriatic Euroregion and Black-Sea Euroregion) which have in their Statutes foreseen the need to have representatives of the national authorities to be included in the different bodies of these Euroregions.
However, these are only partial solutions to the overall need for a permant co-operation between the three levels of governance. An additional problem lies in the fact that Statistical Regions are often very much different in comparison to the Self-Government Regions.
Therefore, this Conference and future Conferences on this topic should besides examining the role of the second chambers in representing the Regions have an additional objective. We should try to propose a possible model or models how to substitute the role of the second chamber in the States were a bicameral system does not exist.
One such model was recently discussed at a meeting of the Association of Local Democratic Agencies. It was suggested that the Parliaments in South-Eastern Europe should establish a body in which representatives from the National Association of Towns, National Association of Regions, Parliamentary Committee on Local and Regional affairs and the representatives of the National Government should regularly meet, jointly plan and follow the realization and implementation of their common projects.
Ladies and gentlemen, if we manage in improving the co-ordination and co-operation between different levels of governance, we will no doubt additionally contribute in bringing Europe even more closer to its citizens and their expectations.
Mr Yavuz MILDON
Thank you very much. You have been incredibly quick and as a result we have gained some time. That concludes the presentations by our very distinguished speakers. Two of them have been elected as presidents of international organisations. I hope their appointment will bring luck to the others!
I now throw open the debate. Who would like to ask a question? Yes, Mr Van den Brande.
Mr Van den BRANDE
If I may, Mr Chair, I should like to reply briefly to Mr Pellegrini in order to dispel any ambiguity. Let me be very clear on the subsidiarity principle, the mechanism introduced by the draft Constitutional Treaty and then by the Lisbon Treaty. As I have said repeatedly, this mechanism is meant to be a positive construct, deepening democracy and its decision-making component. Some parliamentarians are keen to use this instrument. It can bring together national parliaments and second chambers and, through them, regional parliaments.
We should put it to good use and I do not see why there should be a contradiction between one set of objectives and another.
I am not in favour of models. I do not think it is essential to take account of the traditions and histories of specific countries, even if values are universal and should unite us, but when it comes to rules and standards, there is only one type of democracy. Within this there may be different models, as witness the fact that some countries have adopted a bicameral system in which communities can come together.
I merely wanted to dispel any ambiguity. I hope I have been clear. Thank you.
Mr Yavuz MILDON
Thank you, Mr Van den Brande. Are there any more questions? Yes, Mr Bartole.
Mr Sergio BARTOLE
Thank you, Mr Chair. I should like to clarify my position, because I have the feeling that Mr Pellegrini did not understand me correctly. I do not believe the powers of a national executive can replace a senate of the regions. I was simply making the point that that view is taken in some circles in Italy. I was simply reporting on the situation in Italy, without making any value judgment.
Moreover, in my summing up, I said that the executive could not do parliament's job and pass laws. When a government and the regions agree something and that agreement is to be translated into law, if the regions are not represented in parliament they will not trust the government to stick to the letter of their agreement. That is why they feel they have to be part of the parliamentary process in order to be able to scrutinise the government's work, even if agreement has been reached between government and regions.
Mr Fabio PELLEGRINI
I am pretty much in agreement with Mr Van den Brande. It would be wonderful if dreams came true. But some things have their own logic: they may or may not happen.
On the matter of consultation committees, which are supposed in Italy to assist co-operation and consultation between the regions, local authorities and the government, one of these was chaired by Mr Napolitano, a former Interior Minister, and it dealt with contractual relations between the Italian Government and the regions.
Today, implementation of the European Charter of Local Self-Government remains necessary. Without a federal political system there cannot be a federal tax system. Without tax-raising powers at federal level, there can be no federalism. Self-government, in Europe, can only happen within a federal framework.
But we must try to find a better way. We would like to see the adoption of the European Charter of Regional Self-Government plus retention of tax-raising powers, with no requirement to haggle with governments which hold the purse strings and are often reluctant to part with their money. There cannot be true federalism unless the regions have the power to raise taxes and local authorities have the resources appropriate to their powers and responsibilities. Thank you.
Mr Yavuz MILDON
Thank you, ladies and gentlemen. I shall now hand over to the chair and speakers for part three of our conference.