Bicamérisme et représentation des régions et des collectivités locales : le rôle des secondes chambres en Europe
Palais du Luxembourg, 21 février 2008
Mr Hubert HAENEL (France), Chair of the French Senate Delegation to the European Union
I should like to thank everyone present - all those who have spoken, but also the organisers of today's event, the Speaker of the French Senate, the President of the Council of Europe's Congress of Local and Regional Authorities and the President of the Venice Commission. Thanks are also due to the President of the Council of Europe's Parliamentary Assembly for graciously lending the Assembly's assistance in the preparation of this conference, and to the Secretary General of the Senate and his opposite numbers. Thank you, too, to the President of the EU's Committee of the Regions.
I cannot list everyone who spoke, but special thanks are due to my Senate colleagues Ms Michèle André, Deputy Speaker of the Senate, whose commitment to Europe is outstanding, and Mr Patrice Gélard, who has done work on the role of second chambers in Europe for the Venice Commission and on bicameralism in Europe in the Law Committee along with our colleague Mr Jean-Claude Peyronnet. Lastly I must thank the Chair of the Law Committee, Mr Jean-Jacques Hyest, for his excellent chairmanship of the final part of our conference.
There is of course much to be gleaned from a conference with such a tightly-packed programme. I shall not attempt to list everything we have learned - that can be done better when the proceedings are published. I prefer to emphasise just one or two points.
Second chambers are very different from one another, as we have seen throughout the day. But all of them have the same raison d'être , namely to maintain a democracy which is balanced, considered and respectful of diversity. The French Senate, for example, ensures that there is representation of diversity at national and local level but also representation of French nationals abroad, of whom there are nearly two million.
For this reason, bicameralism, whilst it is always useful, becomes necessary for countries of a certain size or with a certain degree of diversity, because when a country has a population of several tens of thousands, central power inevitably grows more remote from the people as it grows stronger. A chamber with a moderating power thus becomes indispensable. It is the same when a country, even one with a smaller population, reaches a certain level of cultural and linguistic diversity. Bicameralism is then needed to prevent one element or another from being marginalised and to ensure a balance between the rights of the majority and those of each constituent element.
The aspiration to balanced democracy is not in decline, far from it. Europe has bounced back from the vast and murderous utopian visions, the political religions which caused such bloodshed in the last century. It has learnt that its own civilisation is a fragile thing, and that all power needs to be moderated and curbed. There is increasing sympathy for the ideal of balanced democracy. At the same time there is a marked trend towards more power for local authorities and the recognition of diversity. The sometimes excessive centralisation which triggered wars or internal tension within Europe is being replaced by a movement in the opposite direction. Devolution reflects the popular wish for a more vital democracy, power which is closer to the people and more easily held to account. This movement is informed by a greater affirmation of diversity, a diversity which wants to be recognised and assured. Thus, the hopes of balanced democracy and respect for diversity on which bicameralism is founded are livelier than ever, and for that reason bicameralism is an idea for the future.
If this is indeed the case, it is natural to wonder how it will translate in the context of European integration, on which the future of our continent depends, at least in part. That prompts me to recall, briefly, my time as a member of the Convention on the future of Europe. When the decision was taken to launch the Convention, we in the French Senate were anxious to prepare our contribution to its work. As one of the topics to be addressed by the Convention was the role of national parliaments in the European Union, we were straight away interested in this subject, which was of direct concern to us. Work on the subject was entrusted to Mr Daniel Hoeffel, who suggested the establishment of a European second chamber or European senate, to represent the national parliaments at EU level. Its powers would be of two kinds: on the one hand, to help ensure compliance with the subsidiarity principle and, on the other hand, to help scrutinise European policies which were intergovernmental by nature, chiefly foreign affairs and defence.
This proposal was very badly received by the Convention where we were repeatedly told that there should be "no new body". It was a real slogan. The same argument was used against President Giscard d'Estaing's proposal for a congress which would periodically bring together members of the European Parliament and national parliaments.
The other argument used against us was that the European Union already had a bicameral system, with the European Parliament and the Council. So no third chamber should be added. Our answer to that was "Yes, the European Union already has a bicameral system, but does it truly perform all the functions of bicameralism?" The Council works like this: talks are conducted in working parties, made up of officials, and any unresolved questions are referred to the Permanent Representatives, who then resolve some of them themselves. In reality the ministers only deal with what is left over from this decanting process. The democratic life of the member states remains in a rather distant background. Nor does it find much of an echo in the European Parliament, whose workings are quite legitimately organised on a transnational basis. Consequently the workings of the European Union are not sufficiently tied in to national political life and are remote from ordinary people.
But this debate quickly changed when a new protagonist burst on to the scene. The regions, especially those with legislative powers, had a number of relay points under the Convention which pushed the idea that a greater involvement of regional and local democracies was also needed, to ensure that the subsidiarity principle was properly upheld. The entry of the regions into the debate in a way helped us in our work, because it was prompted by the same concern to enrich and enhance democracy in the European Union and have decisions taken as close as possible to the citizen. But there is no plan that suits everybody. Compromises were needed, after debates that were not always easy.
National parliaments were given responsibility for monitoring subsidiarity through instruments which provided an early warning system for the European institutions and allowed cases to be referred to the European Court of Justice in Luxembourg. These instruments have been further strengthened by the Lisbon Treaty. And, symbolically, the role of national parliaments is now mentioned in the actual body of the Treaties, not in the protocols annexed to them. After a long debate the regional parliaments, for their part, failed to secure the right to be directly involved in the early warning system and to refer cases to the Court of Justice. The decisive argument here - and it is not without relevance to our work here today - was that the regions were supposed to take part in that mechanism through second chambers.
This is why the new rules expressly say that where a parliament is bicameral, the two chambers equally share in the monitoring of subsidiarity. Thus the fact of taking into account the regional dimension led to the rights of second chambers being guaranteed in a treaty, which was bold to say the least. I recall the misgivings which Robert Badinter, the other French Senate representative on the Convention, had about this formula. He thought we were a long way from legal orthodoxy!
But a second way, likewise indirect, was also opened up to the regions. The Committee of the Regions was also given the right to refer matters of subsidiarity to the Court of Justice. That right only applies, of course, for texts on which the Committee has to be consulted. But it does mean that a second way, complementing the first, is made clear for local authorities to be involved in the monitoring of subsidiarity.
The Convention did not retain the principle of a European second chamber or a European senate. But vestiges of the proposal remain in the protocol on the role of national parliaments, more particularly, in Title II, which deals with the Conference of Parliamentary Committees for Union Affairs (COSAC). How is the role of COSAC, a structure intended by the Treaties to bring together national parliaments, defined?
The Treaty of Lisbon stipulates that COSAC may, initially, submit contributions to the Union institutions. It must in addition promote the exchange of information and best practice between national parliaments and the European Parliament. Effectively, the focus of this exchange will be subsidiarity. Indeed it already is: every meeting of COSAC now deals with subsidiarity. This was the case last Monday when I and my opposite numbers met in Ljubljana.
Lastly, COSAC may also organise debates on specific topics, in particular " matters of common foreign and security policy, including common security and defence policy ." This, for the moment, is not something which the European Parliament can do. Consequently there is not enough collective democratic scrutiny of the EU's external operations.
Centred as it is on subsidiarity and intergovernmental policies, COSAC is - at least in its general inspiration - not very far removed from the new structure which Mr Daniel Hoeffel wanted, although it is on a modest scale. But I admit that it will take a lot of determination to use the new Treaty's full potential to provide democratic accountability, especially in matters of defence and the scrutiny of Europol.
So how does the future look at present?
The general view is that if the Lisbon Treaty successfully negotiates the hurdle of ratification, it will not be revised in a hurry. There is a widespread desire for a pause in the institutional debate.
But the rejection of the European Constitution expressed in referendums by two of the original member states showed that it is necessary to keep strengthening the link between the public and the Europe we are building. The Lisbon Treaty provides the means to do that. These must be used by national parliaments and particularly by second chambers, and special heed must be paid to the concerns of local authorities. They have to work together. Now that subsidiarity is also to have an important place in the work of the Committee of the Regions, there will necessarily be some convergence of concerns as scrutiny is exercised by national parliaments.
On a modest scale the Delegation to the European Union which it is my privilege to chair has already started down this road. On the initiative of our colleague Mr Jacques Blanc, we decided to be part of the subsidiarity monitoring network set up by the Committee of the Regions. Subsidiarity monitoring will also promote closer links between the national parliaments and the European Parliament. In fact, with the new provisions introduced by the Lisbon Treaty, a majority of national parliaments will, if backed by a simple majority of the European Parliament, be able to get a text withdrawn.
Compliance with the subsidiarity principle is a key factor in building Europe because it is essential if European integration is to be acceptable to the people, who think that Europe does too much in some areas and not enough in others. Working in concert to make this principle a reality will ultimately lead to a better understanding of Europe's interest, which is that all legitimate interests must be accommodated together.
The citizens of the European Union are not disembodied abstractions, simple entities in law. They are firmly rooted in local and national life. So in building Europe we must not ignore this dimension. If it is to be strong, European integration must reconcile all legitimate interests. With the new Treaty it has already begun to do so. The priority, today, must be to work together to make the Lisbon Treaty a living reality.
But tomorrow, precisely because of this common endeavour, ideas will change. Increasingly the view will be that if European integration is to move forward, its base must be strengthened and broadened. For this reason I think that in due course we might reconsider the idea of a European second chamber from a different viewpoint. Should we, as Mr Giscard d'Estaing suggested, establish a Congress of the European Peoples, bringing together members of the European Parliament and the national parliaments? Or should we instead have a European senate as an interface between the European Union and political life in the member states and regions?
There are many possibilities. But I think we should keep these things in mind ready for when the institutional debate resumes. Sooner or later I think we shall have an institution which is something like a European second chamber.
Mr Jean-Claude Van CAUWENBERGHE, Chair of the ad hoc Working Group on Regions with Legislative Powers of the Congress of Local and Regional Authorities of the Council of Europe, member of the Walloon Parliament
Mr Jean-Claude Van CAUWENBERGHE, Chair of the ad hoc Working Group on Regions with Legislative Powers of the Congress of Local and Regional Authorities of the Council of Europe, member of the Walloon Parliament
Mr Chair, ladies and gentlemen,
As our final speaker today I shall resist two temptations: to reply to previous speakers and to summarise what they have said.
As a regionalist I could say a great deal about the Committee of the Regions and its limited monitoring of subsidiarity. I could also talk about COSAC. COSAC simply brings together representatives of the national parliaments. It doesn't care at all about our federal states, where the regions are given their own powers and responsibilities. I might also have had something to say about the future of a European senate with more of a regional base.
Our very full agenda today has given us a better picture and understanding of the various and varied experiences of second chambers in our European countries.
My approach will be to outline for you the position of the Council of Europe's Congress of Local and Regional Authorities on the subject.
Let me say that this body, which truly represents the local and regional dimension of the 47 Council of Europe countries (and is not yet the second chamber of the Council of Europe as Yavuz Mildon, President of the Chamber of Regions, suggested), has since its inception worked to promote local and regional self-government, devolution and subsidiarity - in a word, policies of proximity.
The thinking behind the work of the Congress is that democracy is only real and operative in a country where the local base has genuine self-government and where there is an intermediate level between the local and national levels which feeds and enriches the democratic process. That intermediate level deals with everything below the central level. For us it is a structural part of all democracies built on participation and proximity. This is why we took the initiative for today's meeting, successfully co-hosted by the French Senate, in collaboration with the Venice Commission and the Parliamentary Assembly.
Ladies and gentlemen, if bicameralism has a future we believe it lies in a louder affirmation of the principle of participation. Bicameralism provides a guarantee of better law-making or, as some authors have put it, a brake on the political impetuosity of first chambers. However, to use the words of Georges Vedel, we might say that bicameralism is the yardstick by which the separation of powers is measured.
As we have heard this morning, representation of a given social class, previously the essential feature of a senate's membership, is now questioned, rivalled and even replaced by another type of representation, this time territorially based. Whilst the former model is losing ground for obvious reasons, the second is taking over, developing and expanding its raison d'être , as Mr Patrice Gélard says in one of his seminal works on the subject. The principle of regional representation is now, at last, taking over the place left vacant in many countries by the disappearance of an elitist-dominated bicameral system.
" If one considers that the Nation is made up, on the one hand, of a people and, on the other hand, of a territory ", wrote Mr Michel Rocard, " both must be represented in parliament ". And, in the words of the constitutionalist Mr Jean-Pierre Duprat, " In this democratic context, the principle of territoriality would seem to be the only viable basis from which an upper house can draw its identity ."
Politically speaking, it has been suggested that the philosophical basis of bicameralism is the need to represent the human being in his or her entirety, as homo civicus , with a citizen's rights, but also as someone socialised by the groups of which he or she is part or, more accurately, the groups he or she helps to constitute.
So what, to borrow the theme of a report by Senator Patrice Gélard, is the justification for second chambers in a democracy? In our view the second chamber should be the forum in which the constituent groups of a state, federal or otherwise, come together. This is the essential feature of a bicameral system. A second chamber should give the territorial units of a country political representation and a say in the decision-making process.
In the new draft, currently under discussion, of the European Charter of Regional Democracy, which is to be the counterpart to the Charter of Local Self-Government, a number of articles reflect the wish of regional authorities to be involved and heard, or better still, co-deciders. Article 19 of the new Charter says that " Regional authorities shall be involved in all decision-making that affects their competences and essential interests ", whilst Articles 42 and 43 explain the principle.
Where can this political aspiration be better voiced than in a second chamber? And it must not be just a "cooling chamber" as some authors describe it. It must be "warmed" by the glow of grass-roots democracy.
I agree with Mr Van den Brande that second chambers should consolidate and enhance democratic systems. They should not be the "Cinderellas of political life". Anything but: they should balance out the powers of the first chamber, complement it, and exercise political responsibilities within the state.
The representative of the Council of Europe's Parliamentary Assembly, Mr Miljenko Doriæ, stressed the need for enhanced vertical co-operation, because in the absence of a second chamber there is a need for an alternative forum in which concerns can be voiced.
Federal states tend to have a second chamber as a matter of course. The literature on federalism suggests that in order for a bicameral system to meet the criteria for participation, the units of the federation must be represented in one of the two federal chambers.
Ms Séverine Nicot, in her study of second chambers and their search for an identity, says that diversity is of the same substance as bicameralism. We might thus argue that bicameralism is of the same substance as federalism. In countries with a mature federal system, the second chamber is the forum of federal democracy, the first chamber being the forum of popular democracy. If the second chamber is inseparable from federalism, it is equally inseparable from devolved government.
This morning Mr Patrice Gélard explained that we have moved on from federal states, which necessarily have a second chamber, to devolved states which wish to have one.
In the words of the Speaker of the French Senate, Christian Poncelet: " Most states nowadays are engaged in processes of devolution, which legitimise specific representation at national level. Bicameralism alone provides this necessary adjustment to the realities of the modern-day world. Representation of the constituent parts of society usually means representation of the territorial authorities, that is to say authorities that are decentralised to a greater or lesser degree. Compared with the National Assembly, which represents the people as demographic units, the Senate represents the people on a geographical basis and the territory as a sovereign entity. With the current trend of increased globalisation, this respecting of diversity is in itself something of especial value ."
The Congress of Local and Regional Authorities of the Council of Europe is very receptive to these ideas. In effect, regionalisation will increasingly act as a counterweight to globalisation. So it would be useful to have an upper house serving as a relay point for that counterbalancing influence.
Much of our work has sought to answer the question of how bicameralism can be firmly anchored in the regions, in real and concrete form. Many authors and speakers have replied that, if second chambers are to be a forum representing federative entities and regional authorities, their composition and powers must give them what authors Jean Mastias and Jean Grange call an identity, personality and originality .
Professor Carlos Closa Montero explained to us this morning the four models of second chamber composition in federal or, as he puts it, "quasi-federal" states: direct elections, indirect elections, hybrid elections and elections by regional bodies. He did the same for countries which do not have a federal system of government, also describing four historical models: voting by category, voting by sector, indirect voting by the territorial authorities and direct suffrage.
Whatever the model, we in the Congress are in favour of a strong link between members of the second chamber and the entities that send them there, whether these are constituent entities of a federal state or territorial authorities. That link ties in with the debate on the level of representation in the second chamber. Much has been written on the subject. The suggestions are that the Senate should represent either the regions alone or the regions plus other authorities.
The question arises as to how a balance in this representation can be assured, with a proportional system in which the two houses are on an equal footing or with a hybrid system that includes a degree of proportionality. There are many ways of populating this second chamber.
In our view the second chamber must at least have competence in everything affecting the direct interests of regional authorities and entities, in so far as their institutional existence and capacities for action are concerned. Not forgetting the interests of local authorities, which nowadays must concern themselves with matters of EU relevance, subsidiarity, co-operation between regions and across borders, and globalisation issues. Not forgetting either that this second chamber is very often useful as a mirror of conflicts between minorities or within a multi-ethnic country.
To conclude, the Congress has three wishes:
We would like this second chamber to be a forum representing federative entities or territorial authorities in such a way that they can take part in the decision-making process.
This second chamber should represent the authorities adequately and legitimately, that is to say there must be a direct link between members of the second chamber and the territories of which they are the legitimate representatives.
The powers and responsibilities of this second chamber must allow regional or other territorial authorities to scrutinise and endorse decisions which affect them.
Establishment of a relay point through which federative entities or territorial authorities can voice their concerns will help second chambers to strengthen their legitimacy and, in the words of the French Senate Speaker, read by Mr Delcamp, ensure their " revival ".
Thank you to each and every one of you for your valuable contributions to our work here, and thank you for listening.
Mr Jean-Jacques HYEST
Thank you, Mr Van Cauwenberghe. Your summing-up encourages us to think about holding another conference. Today has been most rewarding. Our thanks go to all those taking part. The proceedings of our conference will provide food for further thought on these issues.
I will end by echoing Professor Delpérée: better law-making requires different eyes, but you must wear a different pair of glasses each time.
Thank you so very much, ladies and gentlemen.
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Interpretation has been provided in five langues: English, French, German, Italian and Russian