by Peter Joyce
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Bicameralism in Germany and France
In Germany, the Bundestag consists of representatives elected by the voters for a four-year term of office, whereas the Bundesrat provides a forum at national level in which the views of the states (or Länder) can be put forward. Members of the Bundesrat are not elected but are nominated by the individual state governments. Each state sends delegations to this body which are mandated to act in accordance with the instructions given to them by the state government. Each state is allotted three votes in the Bundesrat, with extra votes being given to the more populated states.
In France, members of the National Assembly are elected for a five-year term. Members of the second chamber, the Senate, are indirectly elected for a term of nine years by an electoral college which is composed of deputies of the National Assembly and local politicians, including mayors, members of departments and city councils.
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Functional representation
Second chambers may also articulate concerns other than territorial ones. They may represent the interests of specific groups within a country. This is referred to as functional representation. The Irish Seanad is theoretically constituted in part on this basis. Members of this body are not directly elected but are supposed to reflect vocational interests. The majority of its members are chosen in Seanad panel elections. In the 2002 Seanad elections, the electorate consisted of 971 persons, comprising members of the Daíl, outgoing members of the Seanad and members of county councils and city councils. These constituted an electoral college that elected members from five panels, using the single transferable vote. These panels are the Cultural and Education Panel (from which 5 members are elected), the Agricultural Panel (11 members), the Labour Panel (11 members), the Industrial and Commerce Panel (9 members) and the Public Administration Panel (7 members).
A further three members are chosen from graduates of the National University of Ireland and another three from Dublin University graduates. The prime minister (taoiseach) appoints a further 11 members. Although this process is designed to ensure representation in parliament from key vocational groups in Irish society, in reality, party affiliation is an important qualification for election to this body.
THE RESOLUTION OF DISAGREEMENTS IN BICAMERAL LEGISLATURES
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Insight
One problem posed by the existence of a legislature consisting of two debating chambers is that they may not agree on all issues that come before them. Mechanisms are needed, therefore, to resolve differences which arise between them.
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It is inevitable that disputes between the bodies that compose a bicameral legislature will sometimes arise. These situations are usually catered for in a country’s constitution or by political practices that seek to avoid a situation in which one chamber effectively vetoes the work of the other, which results in total inaction. Let us consider some examples.
In Ireland, the resolution of disagreement is catered for by the constitution. This established the Seanad as an inferior body to the Daíl in terms of the functions which it performs. The latter body nominates the taoiseach and approves the government. The government is responsible only to the Daíl and most legislation is introduced into this house. The Seanad’s subsidiary role (whereby it can delay normal legislation for a period of up to three months) thus minimizes its ability to disrupt the process of government.
In the United Kingdom, too, the two chambers of parliament are not co-equal in power and, in the case of disagreement between them, the views of the directly elected House of Commons will ultimately prevail. This situation is provided for in the 1949 Parliament Act, which gave the House of Lords the power to delay the progress of non-financial legislation which has been passed by the House of Commons for the maximum period of one year (spread across two parliamentary sessions), after which (provided the measure is reintroduced in the House of Commons) it will become law. This procedure is used relatively infrequently but was put into operation to secure the enactment of the 1991 War Crimes Act, the 1999 European Parliamentary Elections Act, the 2000 Sexual Offences (Amendment) Act and the 2004 Hunting Act.
The French Constitution provides for the pre-eminence of the National Assembly over the Senate. Only the former body can dismiss a government and it also possesses the ultimate ability to determine legislation, although in the event of disagreements between the two chambers an attempt will usually be made to seek a compromise. The Senate does, however, possess important powers (including the need to consent to changes in the constitution) and has on occasions asserted itself, especially during periods of socialist government. This situation is referred to as ‘conflictual bicameralism’.
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‘Pre-study’ in Canada
One difficulty which may affect the operations of a bicameral legislature is the time available for a second chamber adequately to examine legislation sent to it by the first.
A solution to this is the process of ‘pre-study’ which has been utilized by the Canadian Senate since 1945. This is a process by which the subject matter of a bill under consideration in the House of Commons can be considered by a Senate standing committee before being formally sent to this body. The report of this committee’s deliberations is made available to the House of Commons, which may consider the Senate’s reactions to the proposal that is before it, and if necessary introduce amendments before transmitting the bill to that body.
This process enables the Senate to examine legislation placed before it relatively quickly, but also ensures that it is able to make a valid contribution to the law-making process by making its views on it known before it is formally sent to it for examination.
A related procedure (termed ‘pre-legislative scrutiny’) has been adopted in the UK since 1997, involving the publication of draft bills (usually in the format of command papers) which are examined by a select committee of the House of Commons or a joint ad hoc committee of the two Houses of Parliament, and to which the government will usually make a formal response.
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However, in America the two branches of the legislature are equal in status. The introduction of direct election for senators in 1913 resulted in both Houses of Congress being popularly elected. Disagreements between the two chambers on legislation are resolved through the mechanism of a conference committee. If a bill is passed in different versions by the two Houses, a committee composed of members of each House is appointed to resolve the differences and draw up a single bill which is then returned to each House for a vote. Should either house reject this bill, it is returned to the conference committee for further deliberation. It is not necessary to resort to this mechanism frequently, but when it is used it may provide a forum in which ‘trade-offs’ between the House of Representatives and the Senate are made.
Question
Outline the strengths and weaknesses of bicameral legislatures.
Changes affecting the power and authority of legislatures
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Insight
The power of legislatures has been affected by factors that include the executive branch of government assuming a dominant role of key legislative functions such as law making.
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The power of legislatures varies from one liberal democracy to another and is affected by constitutional and procedural rules which govern the powers and conduct of these bodies. In the United Kingdom, for example, scrutiny is aided by the opposition parties being granted a number of occasions during each parliamentary session when they may initiate debates which can be used to probe the actions of the executive. These are termed ‘supply days’, but such facilities are not found in all countries possessing a parliamentary form of government. However, changes affecting the power and authority of legislatures have occurred in a number of countries and in this section we seek to understand the nature of these developments.
THE POWER OF LEGISLATURES
Developments have taken place
in a number of countries that have had an adverse effect on the ability of legislatures to perform the functions outlined earlier in this chapter. The decline in the power of such bodies has adversely affected their ability to carry out traditional functions. We consider some of the main factors affecting the power of legislatures in the following section.
Membership of supranational bodies
The membership of supranational bodies has implications for both the law-making and scrutinizing role performed by national legislatures. In the United Kingdom, for example, membership of the European Union has resulted in the loss of some of parliament’s traditional legislative functions but has also added to the volume of governmental activity which this body is expected to monitor. Membership of international bodies such as the International Monetary Fund and the World Trade Organization also imposes restrictions on the conduct of nation states in key policy areas and may additionally dictate obligations to them.
Developments devaluing the law-making role of legislatures
The role of legislatures as law-making bodies has been undermined by a number of contemporary developments. These include the referendum (whose usage has increased in countries such as the UK which traditionally made little use of them) and other aspects of ‘people politics’ in which citizens seek to secure changes in legislation by engaging in various forms of extra-parliamentary political action.
The role of legislatures as law-making bodies was especially affected by what is termed ‘neo-corporatism’. This denotes a close working relationship between government, unions and business interests. One example of this was the National Economic Development Council (usually referred to as NEDDY), which was set up by the United Kingdom Conservative government headed by Harold Macmillan in 1962. It brought together ministers, civil servants, trade union leaders and representatives of employers, whose key role was to plan for industrial growth. Parliament thus became devalued as key economic and industrial policies were determined in this alternative body.
The role of the media
The ability of legislatures to scrutinize the actions of the executive, to air grievances or to educate the public concerning political affairs is often more effectively conducted by the media. Television interviews with leading politicians and investigative journalism perform important roles in enabling the public to be informed of political matters. Additionally, politicians may decide that the media offer them better opportunities to present arguments to the electorate than a debate which takes place in a legislative body.
Domination by the executive branch of government
A major explanation for the decline in the power of legislatures is the tendency for these bodies to be dominated by the executive branch of government. In many countries, the initiation of policy and the control over finance has passed to the executive branch. In the UK, for example, the bulk of public legislation is initiated by the government. Parliament thus responds to the agenda set for it by the government. It may subsequently be able to influence the detailed content of this legislation, but it is not the driving force behind it. Additionally, governments may be able to utilize procedural devices to expedite the progress of their legislation. In the UK, one such device is the guillotine. This is a mechanism that limits the time devoted to a debate, which ensures that the progress of a government measure is not halted by unnecessary or excessive parliamentary debate. Since 1999, however, agreements between the political parties embodied in programme motions have been used to stipulate the time to be devoted to a bill in its committee, report and third reading stages.
Executive dominance of legislatures has occurred in both parliamentary and presidential forms of government. There are three reasons that might account for this development.
The first is the ability of the executive branch of government to act independently of legislatures in certain circumstances. This has enhanced the power of the former, eroding the latter’s ability to initiate public policy or scrutinize the activities of government. In the UK, the government may make use of the Royal Prerogative and undertake certain actions without having to first obtain parliamentary approval. In other liberal democracies, chief executives are given emergency powers with which to act as they see fit to deal with an emergency or may govern by some form of decree. The American president, for example, may issue executive orders and thus act in certain matters without the approval of Congress.
The second explanation for executive domination of legislatures concerns the ability to cope with the volume of post-war state activity, much of which is of a complex and technical nature. This has made it difficult for members of legislatures to keep abreast of the affairs of modern government and has tended to result in ministers and civil servants within the executive branch exercising a dominant position in policy making because of the superior information they have at their disposal.
The final explanation for executive dominance of legislatures is the development of the party system. The party system possesses some obvious advantages for legislative bodies. It helps to prevent legislative anarchy (in the sense of members seeking to pursue individual interests to the exclusion of all else) and organizes the work of these bodies, thus ensuring that specific goals and objectives are achieved. But there are also disadvantages for legislatures which arise from the party system.
The party system aligns members of the executive and legislative branches. Members of both branches, when belonging to the same party, have common ideological and policy interests. They have a vested interest in successfully translating these common concerns into law. These mutual interests are underlaid by party discipline, which serves to induce members of the legislature to follow the lead given by their party leaders within the executive branch of government. In extreme cases, where party discipline is strong, disobedience to the wishes of the executive might result in expulsion from the party, as happened to the ‘Eurorebels’ in the UK Conservative Party in 1994.
The emergence of disciplined political parties has the effect of ensuring that legislatures do not act as corporate institutions, exercising their functions on behalf of the nation as a whole. Instead, they operate under the direction of the executive branch of government.
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The French party system
The emergence of disciplined political parties has been especially apparent in France. The situation of governments being placed at the mercy of constantly shifting coalitions in the National Assembly has been replaced by the development of parties organized in support of, or opposition to, the government. This situation is termed le fait majoritaire. It supplemented other developments contained in the 1958 Constitution that were designed to subordinate the legislature to the executive. These included limitations on the ability of the National Assembly to dismiss governments and facilities for governments to secure the passage of legislation lacking majority support in either the National Assembly or the Senate.
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THE AUTHORITY OF LEGISLATURES
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Insight
In addition to legislatures suffering a reduction in their power, many have additionally experienced a loss of authority derived from factors that include accusations of ‘sleaze’ and corruption.
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In addition to developments affecting the power of legislatures, other changes have affected the aura and prestige enjoyed by these bodies, which has had an adverse effect on their authority. In this section we consider some of the main factors which have had an adverse effect on the authority of legislatures.
Adversarial politics
The operations of the party system have one further consequence which may devalue the workings of the legislature. Party systems often give rise to adversarial politics. Britain and New Zealand are examples of countries whose political affairs are traditionally conducted in this manner. The political parties which compete for office put forward policies that are significantly different from those of their opponents, typically formulated on contrasting ideo
logy.
Adversarial politics denotes a situation in which one party is automatically disposed to oppose the views and suggestions of another as a point of principle. If this style of politics influences the operations of the legislature, it means that this body lacks any sense of common purpose. The work of the legislature is less concerned with a genuine search for the best solutions to issues and problems regardless of party affiliation but is mainly activated by the furtherance of partisan acrimony and the pursuit of party advantage. Members of the legislature who are supporters of the same party from which the executive is drawn are likely to back that government and deride proposals made by the opposition party (or parties) regardless of the merits of the cases put forward. Similarly, those who are not supporters of the government are likely to make destructive rather than constructive assessments of initiatives put forward by the executive branch.
Thus, party systems may erode the ability of legislatures to take dispassionate consideration of a range of ideas and then support those which overall opinion within that body agrees is the best course of action in the national interest. This situation may affect the way in which members of the general public feel towards the legislature.
