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The
present report is a comparative constitutional law
analysis of the Committee Systems of some significant
Parliaments, unicameral and bicameral, European and
American, with some references to Asian Houses, focused
on the specific matters that are of the highest interest
to the Bangladesh Parliament Authorities. It has been
prepared on the basis of the legal texts in vigor,
namely Constitutions and Standing Orders or Rules of
Procedure. It has also used additional input from the
Reports of Study Visits of MPs from the Bangladesh
Parliament, aimed at the same objective: getting a
better knowledge of foreign Parliaments' Committee
Systems and comparing their experience with the actual
Bangladesh parliamentary legislation.
The
Study Case has taken in account the systems of
·
Australia
- House of Representatives
·
Australia
- Senate
·
France
- National Assembly
·
France
- Senate
·
India
- Lok Sabha
·
India
- Rajya Sabha
·
Spain
- Congress
·
United
Kingdom - House of Commons
·
United
States of America - House of Representatives
·
United
States of America - Senate
The
Study Case has focused on the following aspects of the
Committee Systems:
·
Number
of Committees in relation with the number of Members
·
Composition
of each Committee
·
Types
of Committees: Standing, Special, Inquiry or
Fact-finding
·
Status
of the Committees' Chairpersons
·
Functions
of the Committees in the Executive Power' s oversight
·
Functions
of the Committees in the Legislative Process
·
Functions
of the Committees in the Control of Public Expenditure
·
Value
and Importance of Committees' Resolutions
·
Formal
Organisation of Committees' Sessions
·
Facilities
for Committees and Members
·
Gender
Balance in the Parliaments
·
Privileges
and Special Duties of Members
·
Interaction
between Members and Constituencies
·
Sectorial
Distribution of Committees
1.
Introduction
The
modern Parliaments of the world are in a state of
constant evolution. One of the most significant aspects
of changes introduced in the Constitutions and, in a
more detailed way, in the Parliamentary Standing Orders,
is the increasing importance of the Committee System,
acting as both a tool of the Parliament itself to fulfil
better its tasks and as an instrument for a clearer
representation of their constituents' interests by
Members. The Legislative Power is called to accomplish
two constitutional duties, to make Laws and to oversee
how the Executive Power exercise its rule according to
these Laws, and the Parliamentary Committees provide the
modern setting where both functions can be more
precisely realised. Parliaments are no longer structured
as an Assembly of all Representatives, where all
business is discussed and approved or rejected on the
floor of the House. Parliaments are in a process of
permanent and increasing specialisation. The legislative
initiative, due to the complexity of law-making, is
increasingly concentrated in Government' s hands. The
more generous parliaments do not record more than 10% of
Private Bills out of the total legislative production.
The role of Members in the legislative process is
therefore limited to amending proposed texts, resulting
in amendments becoming the major contribution to Bills
that Members can offer.
Committees provide the necessary space and the
time for analysing and debating amendments, as compared
to the faster and more politically influenced debates of
the plenary sessions.
The
Floor has thereby lost its ancient precedence as the
almost unique instance of parliamentary discussion.
Committees have largely replaced House Sessions,
processing 80% of the time devoted to a Bill debate,
although the House maintains the privilege of the
initial and final vote. Committees have also shown that
they can be the most accurate setting for the oversight
of the Government. Again, there is time enough and
agendas are flexible enough to give the Executive Power
the occasion to be heard and to hear the voice of the
Legislative Power, exercising its control function.
Committees have developed themselves as the instance of
specialised control, while the House has recovered its
spectacular representation of democratic procedures
through direct control systems like the Question or Zero
Times at the highest level. Broadcasting of such
proceedings has helped to strengthen the credibility of
the Parliaments, as a public institution, where
constituents can hear their concerns voiced by their
representatives, contributing to the accountability of
the Government.
In
this context of increased functions and specialisation,
the times of amateur Members of Parliaments are gone.
Parliamentarians have a full-time job to develop on two
fronts to be both effective Parliamentarians and
effective Representatives of their constituents. The
first requires the active involvement in the different
structures set up by the House itself and the second
requires providing adequate representation of their
constituents and providing a presence in their
constituency.
The present report has attempted to describe the range
of Committees that the selected Parliaments have
established, from Houses with a very large number of
Committees composed by a few Members to those which have
only very few but very large Committees. The obtained
information has been cross-referenced with the
respective size of the Chambers and the involved number
of Ministries or Government Departments, so as to obtain
information on the number of Members that have the duty
to oversee the internal division of the Executive, as
well as to obtain a picture of the duties of an average
Member in attending Committee-related work.
Specific
attention has been paid to the status, privileges,
functions, powers and facilities of Committees, its
Chairpersons and Members. A special importance is
attached to the character and openness of Committee
Sessions in public hearings, sittings in
camera or mixed formulas. The different types of
Committees have also been studied, so to distinguish
those Parliaments with stable structures based on
sectorial divisions and those that react to the
introduction of a Bill with the setting up of Select or
Special Committees. Additional Committees, such as those
for Internal Oversight of the House, for Inquiries or
Fact-finding missions or for the analysis of Regional
Associations of the State have also been outlined.
The
legislative and oversight functions of Parliaments and,
therefore, of Committees, reaches its highest and more
mixed expression when the House deals with financial
matters. A Budget can only be proposed and explained in
the light of the execution of the previous Budget.
Committees here control both the Executive rule of the
past and authorise expenditure and revenue for the
future. Again,
different Parliaments have set up various systems and
procedures for the oversight of budgets, accounts,
estimates and public undertakings, and, in the latter,
the Western tradition defers considerably from Asian
Parliamentary practice.
Public undertakings are considered in Western
Parliaments solely as a routine business to be dealt
with sectorially by the responsible Standing Committee.
The
value and legal importance of committee's resolutions,
motions and decisions has been contrasted with the
obligation of the different governments to attend and
accomplish these Parliamentary Acts. As background
information, figures relating to gender balance and
legal provisions on general MPs privileges and special
duties have been provided in this report. The report
also contains a listing of Committees of the studied
Parliaments and a short remark on systems that the
Chambers have set up so as to allow for better
interaction between Members and their constituents, both
in the constituency and as a means of bringing local
affairs more directly into Parliament's business.
2.
Number and Sectorial Functions of the Committee
T
here are, in the different parliamentary systems of the
world, involving both large and small Chambers according
to the number of Members with seats in the House. In
bicameral systems, the Lower Chamber usually has more
powers and also more Members. What is less evident is
that the number of Members has apparently no effect on
the number of Committees, or on the number of Committee
Members. Committees are composed by a large or smaller
number of MPs depending on a decision of the Parliament,
not on the size of the Parliament. Committees are more
or less, depending on the parliamentary tradition of the
House, and not on Governments departmental structure.
Two
models can be roughly identified: some Houses have a
small number of very large Committees that gather
numerous MPs and deal with a wide range of matters.
Other Parliaments prefer a large number of very small
Committees, with a quite specialised function and a
lighter structure. Both models have advantages and
disadvantages. In the first case, the most extreme
example is the French National Assembly, composed by 577
Deputies, and structured in ten Committees, including
those dealing with domestic House Affairs. Committees in
the French Assembly are composed by at least 70 and at
most 140 Members. This leads immediately to the Rule of
Procedure obliging Members to participate in one sole
Committee and forbidding Members to be a full member of
more than one Committee. It leads also, as in the US
House of Representatives, to the appointment of
occasional Sub-Committees. The larger the Committees
are, the more powers they have and the more active and
responsible their Chairperson has to be in the
parliamentary system. Facilities and privileges are
accordingly broader, involving both technical support
and material accommodation.
On
the other side, an average Parliament has one Committee
for each ten Members, each Committee being composed by a
number of Members representing 10% of the seats of the
House. This implicitly supposes that in most
Parliaments, Members are required to participate in two
or three Committees, one as their main activity and the
other(s) as a secondary duty. This is the case in both
Chambers in Spain, the USA and the Indian Lok Sabha.
Regarding
the range of affairs the Committees deal with, where
there are fewer Committees, the number of matters for
each is obviously larger. The Committee on Cultural
& Social Affairs of the French National Assembly,
for instance, is responsible for Bills and Policies on
Education, Research, Vocational Training, Youth, Sport,
Cultural Activities, Labour and Employment, Public
Health, Family, Population, Social Security, Welfare,
Civilian & Military Retirements and Invalidity
Pensions. Meantime, the House of Commons devotes, for
this range of matters, at least four Standing Committees
(Education and Employment, Social Security, Public
Service, and Science and Technology) and one Select
Committee (which examines the Reports of the Health
Service Commissioners). A similar proportion (1:4) can
be found when comparing the larger committee model of
the French National Assembly with the US Congress, the
Spanish Congress or the Australian House of
Representatives.
The
second broad difference between the Committee Systems is
related to the legislative proceedings. The House of
Commons sets up a Committee every time a Bill has been
tabled before the House and this Committee is dissolved
as soon as it has reported to the House on the Bill.
Other Parliaments prefer a stable sectorial system,
according to which, once a Bill has been tabled, the
Committee selected as responsible is a pre-existing one
which will deal with the Bill as a part of its duties.
There
is in existence a mixed system, combining the usual
procedure of presenting the Bill before the responsible
sectorial Committee, with the occasional set-up of a
Special Committee, at the request of the Government, the
Speaker or the Chairman of the responsible Committee,
when the nature of the subject is of an outstanding
importance (France).
Allocation
of Bills to Committees is not always peaceful, as more
than one may have a word to say on the subject. If a
Bill is proposed on pensions to be paid to US Army
Veterans, the Congress Committee on Veterans' Affairs is
directly concerned, but so are the Committees on Armed
Services, on Labour and Human Resources, and probably on
Finance. An arbitration system will then be set up to
determine the Committees' Jurisdiction inside the House.
Multi-sectorial Bills, and especially the Finance Acts,
are sometimes allocated only to the Finance Committee,
otherwise reported by Finance but complemented by a
parallel work of all other Committees interested in
expressing their views.
Legislative
powers have been protective of their independence with
regard to the Executive, and almost never structure
their Committees as a reflected parliamentary expression
of the Governmental Departments. When the Chairs belong
to the majority, the Committee Chairperson Panel rarely
acts as an "internal ruling party" Shadow
Cabinet. From the XIX Century on, the same traditional
Committees have been exercising their authority in
mature democracies, albeit with different names, but
finally dealing with Bills and Policies that concern the
main activities of any modern State.
A
shortlist of these "Traditional Committees",
to be found in almost all Parliaments since the
beginning of the Century, could be the following:
·
Defence
and Armed Forces
·
Foreign
Affairs
·
Finance
and Budget
·
Social
Affairs (Health, Education, etc.)
·
Home
Affairs and Justice
·
Economy
(including Agriculture, Fisheries, Trade, Industry,
Small Business, Transport, Labour and Human Resources,
etc.)
·
Cultural
Affairs
Other,
no less traditional and necessary, committees are those
that deal with the Houses' domestic business: Agenda,
Standing Orders Reform, House Budget and Administration,
Personnel, Rights/Privileges/Ethics of Members, etc.
In 1910, the US House of Representatives decided
to establish a small Committee on Rules which, from this
time, has been composed by 6 Members of the majority and
four of the minority.
Since this time, the Speaker also ceased to
preside over this Committee, although in most Standing
Orders the Speaker has the privilege of presiding over
the Committee in charge of reforming the Rules of
Procedure. To
this series of Committees, the new problems of modern
societies have added, evidencing Parliament's
sensitivity to civil demands.
These include those dealing with Environment,
Women's Rights, Science & Technology, Mass Media,
and more recently, Regional Affairs and Supra-National
Integration. All European Parliaments, for example, have
established Special Committees to deal with the business
arising from the membership of the EU.
Most Parliaments based on federal or semi-federal
Constitutions have Committees to integrate national
policies in the federated territories, or even devote
one of their Chambers, in bicameral systems, to the
regional/state/sub-divisional/territorial
representation. Some
Asian and Latin Parliaments are following these steps,
encompassing House activity with the progressive
regional integration of their States (Mercosur,
Central-American Parliament, SAARC).
In
bi-cameral systems, a special mention should be made to
the Joint Committees. The
House of Commons and the House of Lords in the UK, the
Lok Sabha and the Rajya Sabha in India, the US House of
Representatives and the Senate, the French National
Assembly and the Senate, and the Australian House of
Representatives and the Senate, all set up Committees
composed both by Members of the Upper House and of the
Lower House. These Committees have sometimes their
origin in the importance of their central subject
(Liaison Committee on Estimates in the UK, Joint
Economic Committee and Joint Committee on Taxation in
the USA, Joint Parliamentary Offices on Evaluation of
Legislation or of Public Policies in France, Joint
Committee on the Australian Security Intelligence
Organisation). Otherwise,
they insure the co-ordination of both Chambers in the
law-making process, to overcome the so-called
"shuttle" of any Bill from one to the other.
3.
Special Committees
The
Parliaments and other Houses of this study have created,
throughout their history, a third type of Committee,
when the function they have to fulfil is not one of a
classical nature, i.e. overseeing Governments' rule or
making Laws, or one of a administrative nature, such as
the Domestic Committees, (which manage the Houses,
approve their internal budget, allocate spaces,
supervise works and establish the conditions in which
parliamentary information is to be provided to the
media).
The
Legislative Power, in its controlling function over the
State, has often been required to establish Inquiry and
Fact-finding Committees, with a multi-party composition,
that ensure, in theory, the objectiveness of final
reports. Parliamentary inquiries on misruling and
mismanagement have been frequent in the last decade, not
less than investigations into the political
responsibilities of Ministers, and even Prime Ministers
and Presidents, in cases of disregarding the Parliament
through false statements or ethical misconduct. Such
inquiries do not include cases when a Member him/herself
is considered having produced a breach of privileges:
Parliaments regulate such cases through their Ethics or
Standards and Privileges Committees.
Rules
of Procedure in general have been very careful in
restricting the creation of an Inquiry or Fact-finding
Committees, so to avoid its misuse as a political
instrument of the Opposition to cast discredit on
Government. Therefore, large majorities or the agreement
of all opposition groups represented in the Parliament
is required to create a Committee of Inquiry. With this
system, the Ruling Party cannot oppose the establishment
of a fact-finding mission of the Parliament when all,
but the Ruling Party itself, wish it to be established.
In the same manner, any opposition group cannot
set up, on its own will, a series of inquiries that put
high officials of the Government on parliamentary trial.
Political seriousness has been demanded when
dealing with severe accusations within the Parliament,
for the sake of the Parliaments own prestige.
Lessons
learned seem to be sweet and sour: endless inquiries
with no final and clear conclusion have been used as an
argument by those who oppose what they consider is
removed from parliamentary functions and more properly a
judiciary task. This
has brought the Speaker of the UK House of Commons in
her statement of January 28th 1997 to say of
the activities of Committees on Standards and
Privileges: “I strongly believe that the matters under
investigation should be resolved as soon as possible.
(...) With the reputations of individual Members and
others at stake, these investigations cannot be unduly
hurried but I repeat my view that they should be
concluded at the earliest possible moment”.
The Judiciary Power has been highly critical
towards what it considers either as a trial without
guaranteeing fundamental rights, or an invasion in the
procedural space reserved to the Courts, if any civil or
criminal responsibility was to be claimed.
On
the other side, excellent fact-finding missions with
spectacular consequences in the political arena have
been shown by the defenders of Inquiries as a duty of
the House as evidence of the need for such Parliamentary
Committees. The latest evolution of Parliamentary
Legislation obliges such Committees to finish their work
in six months time, without delay, and to respect
carefully the confidentiality of witnesses in their
proceedings.
Many
Rules of Procedure, in their latest wording, have sought
for a balance in the establishment of such Committees.
Indeed a too large requirement to the
constitution of the Committees, such as the voting
structure, would leave the decision in practical terms
in the hands of the ruling party. This would permit the
Government to be investigated when and only when the
Government itself is willing to be investigated. The
balance must also avoid a too easy set up of the
Committees, preventing the smallest opposition group in
the Parliament to use this extremely delicate instrument
for the destruction of the Government's credibility,
multiplied by the external impact that such a decision
always has, given that the media are a glutton for such
political news.
4.
The Institutional Status of the Committee Chairpersons
As
it has been said above, the status, value and relevance
of the Committee Chairpersons will differ depending on
the importance attributed to the Committee System as a
whole in the Rules of Procedure and the parliamentary
tradition of a given House. The six Chairpersons of the
Committees of the French National Assembly, composed of
577 Deputies, play a more significant role for obvious
reasons than 50 Chairpersons could play in Houses of
around 350 Members. No institutional position can be the
same when it the selection is of 1% of the total or of
20% of the total. The
same could be said, though in a more nuanced way, about
the 37 Chairpersons of the British House of Commons,
coming out of a Parliament with 659 Members and
representing 5% of the total.
The same percentage is evident in the US House
where 26 Chairpersons exist in a Parliament of 435
Representatives. Obviously, these Chairpersons play a
more significant role in the House than in smaller
Parliaments where the number of Committees is larger.
Even
in its variety, Standing Orders always concede a certain
number of additional privileges to the person in charge
of chairing the committees. The first distinction has to
be made on the basis of the compatibility between the
Office of Chairperson and any other relevant post in the
political structure of the State.
On one extreme, some Rules of Procedure establish
the absolute freedom of the House to elect or select any
of its Members to the Chair of a Committee.
On the other extreme, certain Parliaments have
decided that Chairpersons of Committees have such
extensive responsibilities that they cannot commit to
accept any other function additionally to presiding over
the Committee itself.
In the French Republican System, a Member of
Parliament who assumes any official post in the
Parliament has to resign immediately from his or her
seat in the Parliament. On the other side, many
Parliaments have permitted to now, the practice of
Ministers chairing the Committee of their substantive
political area.
The
second broad distinction to be made establishes is
between the selected and the elected Chairpersons.
Essentially, both systems are equally democratic
and respect the majority of the House, whoever is to
decide upon the panel of Chairs.
For example, if the Speaker selects, it is
certainly a second degree democratic election as the
Speaker himself is voted in by the Floor of the House.
If the Committee first gathers and then elects
its Chair, it is clearly will be as well as democratic
procedure, though in first degree of the Members to be
chaired.
Analysing
further in depth the election/selection process of
Chairpersons, the United Kingdom and the Anglo-Saxon
tradition, which includes India and several other
Parliaments, reserves as a privilege of the Speaker the
final decision on who will Chair the Parliamentary
Committees. The
Indian system gives the Speaker the capacity of
nominating the Chairs, though through a non-codified
rule, the latest custom establishes that the Chairperson
of such an important Committee like Public Accounts will
always be a prominent Member of the Opposition. It is
also the custom in India to elect, since 1977, the
Deputy-Speaker from among the rows of the Opposition
Party. The
same non-written rule applies to the Spanish Congress
where the Budget Committee Chairperson is always elected
from among the Members of the principal Opposition
Party. The
British tradition allows the Members to propose their
colleagues as candidates to the Chairpersons panel, the
Speaker then, choosing from the proposed MPs, appoints
and nominates for every session, no fewer than ten
Members who will, with him, constitute the Chairpersons
panel.
The
Spanish, French and US Houses have established that the
Committees are convened by the Speaker at its first
session. Once
convened, the Chairperson is elected immediately as a
stable presidency that will last throughout the term of
the House. Both
in the US House of Representative and US Senate, as well
as in the French Senate and National Assembly,
Chairpersons belong always to the Ruling Party, a normal
consequence of being elected through Committees that
proportionally represent the composition of the House as
a whole. No
concession is made to the Opposition, as Chairpersons
are to play a very significant role in the management of
budgets, the Business of the House, and the activity of
the Floor. Nevertheless,
the US Committees, more than electing their
Chairpersons, ratify, by voting, two principles of the
American parliamentary tradition: first, that the Chairs
correspond by own right to the majority party in the
Chamber; and second, that within the majority of each
Committee, seniority has precedence.
This is only possible due to the stability of the
Committee Members, both in the Senate and in the House
of Representatives.
As Members are frequently re-elected and usually
stay in the same Committee for several terms (except for
a change to a Committee considered of a higher level),
the most senior of the majority party takes naturally
the Chair. Neither
the parties nor the Chief Whips have the right to
deprive a Member from his appointment to a Committee he
has been appointed to in a previous term. Additionally,
the stability of Members supposes a deep specialisation
of American Committees and of its Members.
The
powers of the Chairperson in a strong Committee system
establish a number of privileges for this Member of the
Parliament. The
Chairperson of an Indian Committee will be supplied with
a special office, will have the assistance of a specific
branch of the Parliament Secretariat, and, although no
staff is directly allocated to his office, some
additional facilities such as phone calls and equipment
will be facilitated by the Parliament.
Chairpersons of the Spanish Senate and Congress
are also provided with a larger office and have at their
disposal a part-time legal officer of the Parliament
under the common authority of the senior legal officer
and the secretary-general.
Law officers are nevertheless specialised in the
substantive matter of the Committees they serve and work
functionally subordinated to the instructions of the
Chair. Additional staff is allocated to these
Chairpersons, as well as free communications and
transportation.
The
Chairpersons of the House of Commons may have less
material facilities but their functions have been
broadened in terms of procedural duty, which involves
reporting, through the Chairpersons Panel, their opinion
on procedures of the Standing Committees.
These opinions have led in many cases to
substantial reforms in the British Standing Orders.
The facilities allocated to Members do not depend
on the fact of chairing a Committee: with some
exceptions, seniority is again the rule.
All private Members do have an office within the
premises of Westminster and seniority is a determining
factor on the size of the office and more junior MPs
will share small offices.
Only Members who are Ministers are allocated a
large working space, as well as a driver and an official
car.
In
the US House of Representatives, the power of the
Committees is strong, as their Chairpersons control the
Committees Business.
From a range of 3-4 thousand matters that are
addressed at the beginning of the term to every
Committee of the Capitol Hill, the Chair selects a small
percentage for consideration and those not addressed
receive no further action for the next years.
In this way, Committees are setting the Chamber's
agenda, by determining the issues to be considered
regardless of the will of the Speaker or of the
Government. This
reality is nuanced by the fact that Chairpersons always
belong to the Majority Party of that Chamber, a
situation that, in the American System, does not always
mean a perfect synchronicity with the Executive Power.
US Committees receive furthermore varying levels
of operating funds to address accordingly a range of
matters and employ varying numbers of aides.
Each Committee hires and fires its own support
staff. Most
Committee staff resources are controlled by its majority
party Members but at least a proportion is always shared
with the minority.
One of the main sources of power of the
Senatorial Committees in the US is their capacity to
approve or reject international treaties, and such
powers have been demonstrated in recent history to the
embarrassment of the President of the time.
The same applies to the Senatorial Committees
authorisation to presidential nominations, including the
Cabinet, Secretaries (Ministers), the Heads of Executive
Agencies such as the CIA, the Ambassadors, etc. The
nominations are subject to hearings at the relevant
Senate Committee before their nomination is finally
approved. A
very recent case of disagreement is the warning cast by
US Senate Committee on International Relations to
President Clinton not to propose his second
international affairs advisor, Mr. Richard Holbrooke, as
US Ambassador before the United Nations in New York and
Member of its Security Council.
Within
the study cases, the strongest powers of Committees and
Committee Chairpersons are certainly in the Rules of
Procedure of the French Parliament.
As we will see later, the six French Committees
are convened whenever a Bill is tabled in the House,
unless the Government has requested a Special Committee
to report. The
Chair of the Committee has in this sense the same or
even stronger powers than the Government as it can also
propose the nomination of a Special Committee, but
furthermore object this appointment and claim its own
jurisdiction. The
French majority electoral system and the size of the
National Assembly ensure the winning Party a large
majority in the Assembly but not always in the Senate,
as is the case in the USA. Committee Chairpersons are
elected by Committee Members by secret ballot, which
means Committee Chairpersons, are Ruling Party MPs in
the Assembly, although not always in the Upper Chamber,
where the Senators are elected for nine years and
proportionally by thirds every three.
A further indication of the importance paid to
the French Committee System is the mandatory character
of the attendance by Members.
Failure to attend more than one third of the
Committees during a Session, will oblige the Speaker to
declare that the MP has resigned, that he can no longer
be Member of any Standing Committee in the same year and
that his duty allowance shall be reduced by one third
until the next Session.
The
Chairperson of a Committee shares, with the Speaker, the
power of convening the Committee while the National
Assembly is not in session.
While Parliament is sitting only the Chairperson
can convene the Committee but also only for the
immediate consideration of a matter committed by the
House. The
Speaker on his side has the privilege to convene the
Committees at Government request.
The balance for this last rule is established by
another rule allowing only the Chair to ask a Member of
the Government to be heard by a Committee.
The last ingredient of this cocktail is the legal
provision depriving, in a unique parliamentary legal
text, the Chair to have a casting vote.
If votes are equal, provision set to the
Consideration of a Committee shall fail.
Other
procedural measures ensure the capacity of Chairpersons
to intervene actively in any debate of their
responsibility once the Committee has reported and the
Floor is to decide.
The Chairperson can propose to proceed with the
debate in process after 1am in a late evening sitting.
He has also the capacity to request any sitting
to be suspended: the Speaker, without consulting the
Assembly, will take the final decision.
The Chairperson has, as only Ministers have, the
leave to speak whenever he/she wishes to.
The Chairperson can request for public ballot
without discussion.
Intervening decisively in more substantive
aspects of the debate he can request for public ballot
without discussion and can ask for a Bill to be
considered by simplified examination procedure (short
deadlines and no Committee discussion) if the Committee
did not yet consider the Bill. Finally, as Members are
not allowed to introduce amendments that either increase
the public expenditure or diminish the state revenue, as
foreseen under Article 40 of the Constitution,
Chairpersons can decide if amendments are admissible or
fall into these Constitutional provision.
From a material point of view, the Chairpersons
can select personally officials of the Parliament
Secretariat to assist them especially in debates at
public sittings.
Allocation
of Members to the Committees follow very different
rules. The
basic principle, observed worldwide, is that a Committee
shall reflect the proportion between majority and
minority representation in the House.
In the US system, the Committee of Ways and
Means, composed by Members appointed by the Chief Whips,
appoints all other Members of all Standing Committees.
The lists are finally ratified by a vote on the
Floor. In
the UK, the Committee on Selection will nominate the
Members for all other Standing Committees, while Select
Committees are voted by the Floor.
The French and Spanish Chief Whips will agree
with the Speaker on their respective representation
rights in the Committees, nominating afterwards as many
Members of their respective parties as seats have been
allocated to them in a formal decision of the Chambers
Bureau.
Finally,
given the significant powers of the Speaker in the
establishment and oversight of the work of the
Committees, some discussion regarding the alliances of
the Speaker to either the Ruling Party or to one of
Opposition Parties may be helpful. There is a frequent
confusion about the issue of Speaker being a Member of
the Opposition in the Anglo-Saxon Parliamentary
tradition. This
has probably been induced in the last decade by the
prominent presence of the Rt. Hon. Speaker of the House
of Commons, Betty Boothroyd MP, during the governments
of PM Margaret Thatcher and John Major.
The common law and the custom, and not any
written Standing Order, establish that the House cannot
sit without a Speaker: for this reason, following the
general elections, the first decision to be made when
Members are summoned to Westminster is the election of
the Speaker. The
Cabinet, the leader of the House and the leader of the
Opposition shall then agree on a person who has almost
always been elected by unanimous vote, reserved for the
private Members only.
It is an accepted custom, which has been
respected without breach, that the Speaker shall be
re-elected in successive Parliaments until s/he retires
or dies. The
other case is that s/he will be defeated in his/her
constituency which is unlikely since, when an outgoing
Speaker is candidate in his/her constituency, s/he will
be less a Labour, Conservative or other Party candidate
than a Speaker of Commons in search of re-election.
Since a Member is elected as Speaker, s/he
becomes a person without Party, who suspends his/her
partisan relation, rarely is challenged in the Speakers
election and is almost never suspected of being
one-sided. The
Speaker is identified with the House as a whole and the
only disadvantage for this privileged position is the
loss, since the Cabinet has become the government of a
Party, of his ancient political leadership facing the
Crown. The
same neutrality applies to the Chairpersons of Ways and
Means (title given to the Deputy Speaker in the House of
Commons), and to his two Deputies: these three Members
and the Speaker do not normally vote, except for casting
votes and they are not included in the figure
representing Party strengths within the House.
This
actual institutional reality can also be found in
Australia or India, where Speakers only play a partisan
role in their constituencies.
On the contrary, the Speaker of the US House of
Representatives is a highly important leader in the
Party politics as s/he is, at the same time, the Chief
Whip of the her/his parliamentary group.
In other words, the leader of the House is the
Speaker of the House.
A very special regulation applies to the US
Senate. The
Speaker of the Upper Chamber ex
officio is the Vice President of the US who also
only votes in cases of casting votes and cannot nominate
committee Members.
The Senate thus elects a Speaker pro
tempore proposed by the majority who chairs the
House in the absence of the Vice President and rules its
daily business. A third Speaker ex
officio is foreseen in the Constitution: the
President of the Supreme Court of the US will preside
over the Senate in an impeachment.
5.
Formal Organisation of Committee Sessions and the Value
of Committee Resolutions
One
of the holy principles of parliamentarism is that
"Sovereignty is not to be divided".
Accordingly, only the House as a whole can take
sovereign decisions, such as approving Bills, the
Taxation of the Nation, and the Revenue of the State,
appointing or censoring the Prime Minister, or deciding
on the international relations of the country. The
Committees are a tool, but do not, except in very rare
procedures on delegated legislation, represent the
sovereignty: they help the Sovereign Institution to take
the decision by preparing, discussing, improving and
agreeing, if possible, the text submitted to the
Parliament.
The
decisions of the Committees are therefore not binding.
However Committees do take decisions, such as in
approving amendments to Bills, that are difficult to
undo by the plenary session. They reach agreements in
camera that are the basis of the approval by the
floor of the agreed proposal. Their activity is also a
filter to allow only decisions on relevant issues to be
forwarded to the House. The Committees select the
matters they will consider, reject others and choose
which of the Private Bills are to be debated. The Select
Liaison Committee of the British House of Commons
reports to the House its choice of Select Committees'
Reports to be debated on such Wednesdays as appointed by
the Speaker. The House of Commons' Standing Orders also
foresee that to approve a motion first disapproved by a
Committee, the House has previously to hear, vote and
disagree on the Committee's Report.
The
general rule is, nevertheless, that Committee
Resolutions are not binding for the Government, while
the decisions of the Parliament are. However Governments
are aware of the fact that disregarding Committees'
Recommendations can lead to a stronger decision by the
House, giving the Committee the reason for forwarding
the initial proposal to the Floor. For this reason, the
parliamentary tradition obliges Governments to provide
explanations of the reasons that have prevented them
from following a Committee decision, as it is very
clearly stated in the Indian Chambers' Rules. The
Australian House of Representatives joins this tradition
and adds the regulation obliging the concerned Minister
to give a statement of the steps taken by the Government
within three months of the Committee placing its report
on the Floor of the House. If the Australian Government
differs to any Recommendation of the Committee, the
Minister has to issue a statement that is referred again
to the Committee for reconsideration. When no statement
is given in three months, the House reacts strongly with
a request of the Speaker to the Government, followed by
the agreement on the new term when, with no excuses, the
Minister will finally deliver his statement.
Committee
Sessions have historically been held in
camera, as a way of avoiding a partisan approach to
the Committees Business. A strong sector of the doctrine
affirms that secret deliberations have been shown to
have an advantage in providing a forum where it is
easier to reach agreements. The reason is simple: in
public, opposition MPs seem to be tied to a very
critical role towards the Government and are seen as
weak if they are willing to agree to their opponent's
proposals. On the other hand, in public sessions, no
ruling party Member of Parliament would dare or consider
intelligent to show criticism for a proposal of his own
party, of his own parliamentary group or of the
Government he/she has voted and supports. In secret
Committee sessions, the environment changes
significantly: the Treasury Bench is able to be more
critical through being able to show disagreements
without publicity inside the same political group; and
opposition Members do not fear to vote in favour of a
reasonable motion, though proposed by the ruling party.
This
concept of a reserved space for the deliberation of
Members specialised in a concrete technical matter is
nowadays put in question. Transparency is increasingly
seen as an imperative duty of public institutions and
secret meetings are looked upon with mistrust by public
opinion. This is particularly the case with the media,
the first actor and the fourth Power, which is excluded
from direct knowledge of what is been said in such
Committee Meetings.
Parliaments
have thereby split into two groups: those who do not
allow “strangers” (in House of Commons' wording) to
be present at any Committee Meeting and those who
establish a flexible rule, leaving the decision of
whether such strangers should be admitted in Committee
Rooms to the Committees themselves or the Speaker.
Clearly, the concept of “stranger” does not
apply to Senior Parliament Secretariat Officials or
staff members, whose duty is to record minutes or to
help in any other way the MPs of the Committee require
to fulfil better their tasks. In general, the first
“strangers” to be admitted in Committee sessions
were the second level members of the Executive Power
(Secretaries of State, Directors Generals, Advisers to
the Ministers, etc.), on the understanding that they
were only supplying additional and/or technical
information to the Minister facing a Committee, without
any intervention. Almost all Parliaments accept that the
Heads of the Executive Power can be accompanied by their
staff to forward Committees a better explanation of
Government policies, especially when the subjects are of
great complexity. India, Spain, the USA and the UK share
this position in their parliamentary rules. The French
National Assembly even permits to the Chairpersons of
the Finance and the Defence Committees to select
military or civilian Staff so to be helped at public
hearings of their Committee and the Government has to
provide these civil servants as a contribution to
Parliament's needs.
The
second and third group of “strangers” is composed by
the general public and by the representatives of mass
media. Both had the same treatment up until the
introduction of live broadcasting of parliamentary
proceedings. The
Lok Sabha does not permit the presence of any non-member
of the Parliament in Committee sessions. The Australian
House of Representatives establishes that ordinary
Committee Meetings are to be held closed door, and
nobody but Members and concerned Officials are allowed
to be present. Before 1988, the principle of
confidentiality of Committee proceedings could not be
waived in the French Senate and National Assembly. The
Spanish Congress Committees allow the presence of
journalists in its sessions, but not the attendance of
general public. The House of Commons, after considering
the Lords as non-strangers, states in Standing Order 89
that “strangers” shall be admitted to a Standing
Committee, unless the Committee otherwise orders.
The
broadcasting of Parliament's debates has introduced a
new challenge to this principle of confidentiality. If
plenary sessions, Prime Minister's Question Time or Bill
discussions on the floor were to be televised, why
should the presence of TV cameras in simple Committee
Meetings be opposed? Parliaments have generally been
restrictive in the admittance of broadcasting as
Committees have, among others, the task of taking
evidence and hearing witnesses. The respect of privacy
has been alleged as an argument in favour of public
hearings.
The
most open system is certainly the one of US House of
Representatives. Public Hearings in Committees are to be
live telecast if the media show interest. The Australian
House does not consider Public Hearings as an ordinary
Committee session, as individuals can come and speak on
invitation: in this case, journalists can be present, as
well as public in general. The Spanish Congress' Speaker
has the right to set up guidelines both for the live and
post-produced editing of recorded Committee Sessions. On
the other side, most Parliaments who admit Sessions to
be recorded introduce some restrictions and have the
option of leaving the final decision until the critical
moment. The House of Commons have established the most
precise system, setting up a Select Committee of eleven
Members on broadcasting of the Proceedings of the House,
including the Committees, which makes recommendations to
the Speaker on this subject. These recommendations are
analysed first by the Domestic Committee on Information
and, eventually, in case of incurring any additional
expenditure, by the Select Committee on Finances and
Services of the House. The gradual introduction of
publicity in the French National Assembly is still
regulated through very cautious Rules of Procedure: the
Chairman of a Committee, after hearing his
Deputy-Chairpersons and consulting the Committee itself,
decides whether some or all hearings shall be public.
Committees of Inquiry are televised as a general rule
but they can decide exceptionally to sit closed door.
The Bureau of the National Assembly reserves the right
to decide, as the superior body to the Committees, if
any session of a Committee shall be audio-visually
recorded and how the tape will be distributed.
6.
The Committees in the Legislative Process: The Finance
Acts
Parliaments
are the law-making institutions of the democratic State
and its Committees the most important instance in the
preparation, debate and agreement of the intermediate
text of a Bill to be put forward for approval by the
House. From a Committee's discussions, any impartial
observer can conclude if the proposed Bill will be
approved by the Parliament and how its clauses will be
finally been drafted. The margin of manoeuvre of the
Floor is proportionally smaller according to the
efficiency of the preparatory works of Committees in the
production of a text.
The
two systems of Committees dealing with Bills have
already been outlined: the House of Commons system, with
Standing Committees constituted afresh as often as
necessary to consider Public Bills in detail, as opposed
to the Continental/American system, where Bills are
simply referred to the Committee with material
jurisdiction. Despite the different procedure of
nomination, the legislative process undertaken by
Committees offers large similarities.
The
start of the process is located in the legislative
initiative that any Government has, so to decide on what
matter and at what time it wants the Parliament to
discuss the legal proposal. This is less flexible
regarding Finance Acts: the Government is compelled to
present a budget proposal at a due time.
This will be late enough to provide the House
with some accounting results of how the previous budget
was executed, giving the Parliament enough time to
discuss the figures and keeping in mind that
authorisation for new expenditure and taxation has to
come in force at the beginning of the next Fiscal Year,
on the first of January. This is known in the
parliamentary culture as the Finance Autumns, as most of
the sittings between October and December will be
allotted to the discussion of the budget.
The
House of Commons has usually begun the budget process
particularly early, as the Select Liaison Committee had
first to consider the Estimates during a three day
sitting before the 5th of August.
This was known as the Spring Proceedings.
Following an announcement during Norman Lamont's
1992 Budget speech, the then Government issued a White
Paper setting out its proposals to change the Budget
timetable so that tax and spending proposals could be
presented to Parliament at the same time (Budgetary
Reform. HMSO. Cm 1867). Between 1993 and 1996 the Budget
was delivered in November and it covered both the
Government's taxation plans for the coming financial
year together with its spending plans for the next three
years, thus combining the Budget with the Autumn
Statement. The Budget speech also included a statement
of the Government's medium term financial strategy and
the short-term economic forecast.
A new Government can, of course, decide to vary
the timetable again, and the new Labour Government has
indicated its intention to do just that: Chancellor
Gordon Brown delivered his Budget in the Spring of 1998.
With this proceeding, the Government allows the
Parliament and the public opinion to comment and
scrutinise its plans several months in advance of the
Autumn Budget statement.
The
Budget statement in recent years has been followed by a
general debate lasting about four days. The Leader of
the Opposition, rather than the Shadow Chancellor,
traditionally replies to the Chancellor's statement. To
allow a wide-ranging discussion on the complete package,
debate takes place upon the first Budget resolution
proposed, normally that entitled "amendment of the
law". The Budget Resolutions which form the basis
of the Chancellor's statement are the resolutions for
the continuance of income tax and corporation tax, and
the imposition of any new duties or increase in
permanent duties necessary to adjust revenue to
expenditure. It is upon these, and any other necessary
resolutions, that the subsequent Finance Bill is
founded. The
reason why the Budget and the Finance Bill have to be
annual events is because income tax, corporation tax and
advanced corporation tax are annual taxes, which means
they must be renewed by legislation each year. (Most UK
taxes, including all indirect taxes, petroleum revenue
tax and taxes on capital, are, by contrast,
"permanent".)
As with all Bills, the first
opportunity for Members of Parliament to discuss the
Finance Bill is at its Second Reading, where the general
principle of a Bill is debated. A majority government
would expect to win any vote on the Second Reading quite
safely. Should a government be defeated on the Second
Reading of its Finance Bill, that would be tantamount to
a vote of no-confidence.
After
the approval of the principle of the Bill, for which
only one day would normally be allowed, a motion is
considered for its committal, i.e. to send the bill to
the next stage - discussion in Committee. Until 1968,
all Finance Bill Committee stages had been taken on the
floor of the House. The decision was then made, in order
to save the time of the House, to involve a Standing
Committee in the Finance Bill, and general practice
nowadays is to split it, so that the more controversial,
important or novel provisions are dealt with in
Committee of the Whole House,
which all Members can attend, and the others in a
Standing Committee. The Government and the Opposition
agree which clauses will be taken on the floor of the
House. Procedure on the Bill is the same as for any
Public Bill except that the Standing Committee often
consists of about 30 to 4 Members (as opposed to the
more general figure of about 15 or 20), and the
Committee has tended in recent years to sit in the
mornings and in the afternoons/evenings, rather than in
morning sessions only.
Amendments
are proposed to Finance Bills in very large numbers,
both by Opposition parties and Government backbenchers;
and indeed by Ministers themselves. Lloyd George
remembered when the Amendments submitted to a Finance
Bill " ... numbered something like a dozen, or
twenty at outside. Now [1913] they number anything
between 100 and 150 ... ". By 1985-86 they numbered
348, plus 41 new Clauses, in the Standing Committee
alone. (For the 1997-98 Finance Bill, 57
amendments were tabled and 2 new clauses). Not
all of these, of course, will be debated; but the
Finance Bill Standing Committee traditionally involves
many very late sittings.
The
Standing Committee does not generally meet until after
the Committee of the Whole House has concluded
consideration of the parts of the Bill committed to it.
Membership of the Committee tends to be announced just
before Committee of the Whole House takes place.
Report stage follows, often taking over two days,
and does not significantly differ from that on other
Bills.
Third
Reading used to be dealt with on a separate day, but is
now often combined with the second day of the Report
Stage. All proceedings on the Finance Bill are exempted
business and so Committee of the Whole House and Report
stages in particular can go on late into the night.
The
Lords print the Bill when they receive it, like any
other. In debate it usually passes through all its
stages in a single day. Because the Lords cannot amend
it, their printing of the Finance Bill is normally ipso
facto the text of the Finance Act. The Bill then
receives Royal Assent in the normal way
The
French Parliament has seventy days to approve the
proposed budget, forty for the National Assembly and
fifteen for the Senate plus fifteen days for the shift
between Chambers. If the Finance Act is not approved at
this time, it will enter in force through an ordinance,
and only to meet the previous commitments and needs of
taxation. The Spanish legislation is even more severe in
case of rejection of the Parliament: if the Finance Act
is nor approved by December the 31st, the previous
year's Budget will be extended on a monthly basis, until
the Parliament votes a new Act.
Empirically however, rejection of budget leads to
the dissolution of the Parliament and call for new
elections, as the Government shows to be unable to pass
its most important Bill through the House.
Parliament
usually discusses the Budget in large figures and then
refers the latter debate to the Committees. Once the
frame of Expenditure and Revenue has been approved, once
the House has said how much the Nation can be taxed and
how much the State can spend, it is left for the
Committees to distribute the burden of the public income
and to allocate resources to the different policies.
Committees of Finance will then play a major role. In
some Parliaments, they will be the only Committee to
report to the House. In others, they will seek for
opinions of the sectorial Committees, to report jointly
or to integrate their views in the final Finance Report.
Strong
Committee Systems (France, UK, US) empower the
Chairperson of Finance Committee to receive papers and
information from the Government. In the Spanish
Congress, the Finance Minister first faces the Finance
Committee on the global amount of the Budget. Once the
frame approved, Session is suspended to allow all
Committees to call the Ministers, Secretaries of State
and Public Corporations' Managers of their respective
jurisdiction for more detailed information on the
budget. A similar structure can be observed in the
Indian Parliament where the thirty DRS Committees start
analysing the budget once Session, which has discussed
generally the Finance Act, has been adjourned, so as to
allow Members to propose changes inside the budget
without increasing the expenditure or diminishing the
revenue. The
budgetary control of Ministers is only allowed in France
through the questions that all MPs can put successively
to the Heads of Executive Power once the Bill has come
back to the Floor from the Finance Committee.
The French Constitution foresees an ordinary
legislative proceeding and an extraordinary proceeding,
in cases of urgency.
This latter proceeding shortens considerably the
terms and powers of the Committees in the discussion of
a Bill, abandoning to the Floor the capacity of
discussing and approving the text and its amendments.
Due to the importance of both the Committee
System and the Finance Acts, Budget Bills cannot be
introduced through the extraordinary proceeding and must
therefore pass through the Committee filter.
The
legislative procedure of any Parliament is similar to
the procedures applicable to the debate and approval of
Finance Acts. Most
commonly, the entire House will not be involved as it is
in the budgetary discussions.
In the UK, once the Government has tabled the
Bill before the House, the Business Committee, composed
by the Chairman of Ways and Means and eight Members
appointed by the Speaker, will allot days for the
consideration of the Bill in the Committee. Ministers of
the Crown can also present a motion providing an
allocation of time to any proceeding on a Bill.
Government Bills will have precedence and the Government
has the privilege to decide its own Bill order inside
the same Committee.
The
British system follows a two or three reading procedure
where a Public Bill is read once without question for
general knowledge of the House.
Following the second reading, it shall stand
committed to a Standing Committee, though Members can
propose Bills to be referred to Select Committees or
even to a Committee of the whole House.
The Bill as amended is taken into consideration
by the House. Again
here ownership of the Bill by the Committee which has
managed it can be seen in two House of Commons Standing
Orders. On
one hand, no amendments can be proposed to the Bill if
not proposed in due time in the Committee.
On the other hand, the Rule against speaking more
than once shall not apply to the MP in charge of the
Bill or mover of amendment (in respect of this
amendment). The
French Parliament applies the same rule although less
restrictive: amendments moved by MPs but not submitted
for consideration in Committee shall not be deliberated
on the Floor, but in
voce amendments can be moved in the plenary both by
Government and Committee Chairpersons.
A
very clear ownership of the Committee upon its Bill is
to be seen in some Standing Orders that permit those MPs
who have started the discussion to finalise it even once
the text has reached the Floor.
The US House of Representatives, before billing,
first selects the issue where legislative input seems to
be needed. The
responsible Committee will undertake four types of
actions. The
Chairperson will ask relevant executive agencies for
written comments on the proposed measure.
Secondly the Committee will be convened for a
series of hearings of non-Committee experts who will
state and respond to Members questions.
Thirdly, the Committee will meet alone to perfect
the measure through amendments.
And finally the Committee will send the measure
to the Chamber with a written report on its work,
including the purposes and provisions of the intended
Bill. The
Chamber will of course have the capacity to enact Laws
but Committee Members will have the privilege to
deliberate before the Floor as they did within the
Committee. US
Representatives manage therefore have the opportunity
for the full Chambers deliberation on a Bill they have
begun to discuss in the Committee.
Furthermore, Committee Members will be appointed
to any Conference Committee, created to reconcile the
two Chambers deferring versions on a given measure.
7.
The Committees' Role in Government Oversight
The
legislative production is always the judicial expression
or the financial concretion of the Executive Powers
intention for the future of its rule.
Aside from making laws, Parliaments have also the
Constitutional duty of controlling the past rule of the
Executive Power, as much in regard to the accountability
of the resources allocated to the government as to the
different policies developed according to an electoral
manifesto or action programme. On the financial side,
Parliaments either have established a specific Committee
on Accounts to control the past expenditure of the
government or rely on the Finance Committee as the one
to analyse both the budget and the past expenditure.
The Comptroller and Auditor General is normally
accountable and called before the responsible Committee
once a year following the publishing of his/her report
(Spain, France, UK).
S/he can also be summoned by the Committee for
selected matters. Other
Parliamentary Systems rely more on written information
and select audit paragraphs of past expenditures where
violation of norms have been alleged.
Another means of control is the requirement to
the Comptroller and Auditor General for fresh and
specific reports on concrete programmes, whole
Ministries, or balance sheets of public corporations.
The
Public Accounts Committee of the UK House of Commons,
India Lok Sabha or the Spanish Congress examines the
accounts showing the appropriation of the sums granted
by Parliament to meet the public expenditure.
They realise therefore a control ex-post of the
activity of the State, probably the most important
oversight function of the Parliament over the
government. However
policies, statements, programmes and any other
governmental activities are subject to parliamentary
control and Committees play an important role in their
specialised capacity.
Except in India where Ministers do not face
Committees, it is a generally agreed Parliamentary
condition that the Heads of the Governmental Departments
are responsible before the Parliament, but more
precisely before the Committee that deals with their
area of intervention.
The House of Commons of the UK has established a
set of 17 Select Committees directly related to
government departments to examine their expenditure,
administration and policies, as well as those of their
associated public bodies.
The Houses System splits in two groups the
Standing Committees charged with the duty of reporting
on Bills and the Select Committee made responsible for
the government oversight.
The US system has in the Senate a Committee on
Governmental Affairs plus a set of Committees for the
most important areas of the Executive Branches. The
Senate has also a Committee on Government Reform and
Oversight.
Control
systems extend from the capacity of Committees to call a
Minister, who also generally has the capacity to ask to
be heard, to the possibility of censuring concrete
policies, departments or management of public bodies.
No Committee has until now the capacity to hear
the Prime Minister or President of the Government, who
has the privilege to speak before the Floor whenever
s/he has to be questioned.
Some Parliaments even restrict the Ministers
Question Time to the plenary session limiting the
control capacity of the Committees to a normal debate
without a specific Question Time within the Committee.
The
general principle of Parliamentary control over the
government is simply based on the fact that all
government policies are funded with appropriations voted
by the Parliament.
For this reason, the Parliament and its
Committees have the sovereign right to control any
aspect of the policies of the Executive Power. This
control comes with no other limitation than the close
door deliberations and duty to keep in secret sensitive
information submitted by the government on strategic
areas like international agreements, national defence,
intelligence and extraordinary judicial proceedings
dealing with political or criminal responsibility of the
highest authorities of the State.
Other than these limits, which are more
established to protect secrecy than to prevent
Parliamentarians of being informed, the Houses are
sovereign in their capacity of oversight.
8.
Privileges and Special Duties of Members
The
Parliamentary Institution has, since its birth in the
Greek Agora and the Roman Senate, enjoyed the privilege
of auto-regulating the conduct and behaviour of its
Members as extraordinary privileges were conceded to
them for the better fulfilment of their particular
responsibilities. The
principle of division of powers has also played a
significant role in not allowing the Judges to put
Parliamentarians on trial setting up a system, precisely
a Committee system, that only enacts Members to judge
their colleagues in case of a breach of privileges.
Most Parliaments have therefore set up a
Committee called variously the Committee on Status of
the Parliamentarians (Spain), Committee of Privileges
(India), Committee on Standards and Privileges (UK),
Committee on Ethics (US House of Representatives) or
Committee of Standards of Official Conduct (US Senate).
These Committees have the responsibilities both
to protect and revise the privileges of the Members and
to censure those who have abused these privileges for
other reasons than those they were created for.
As
relations between politicians and journalists have
historically been one of conflict, these Committees have
often to analyse complaints of Members who have suffered
adverse criticism beyond accepted press freedoms in a
democratic society.
Committees will then respectively either ask
Ministers to correct the attitude of their subordinates
or summon newspaper editors to respond to the complaint.
The Committees can also be called to analyse
complaints of MPs whose orders have not been carried out
by civil servants or of Members.
The
Privileges Committees exercise a disciplinary power on
the MPs. They
are usually therefore composed of senior Members, who
are able to guarantee fairness, equity and moral
authority upon their colleagues.
Political balance in these Committees is an
undoubted prerequisite to prevent suspicion of any
disciplinary measure being taken for political reasons.
Penalties range from moral censorship on one
extreme to expulsion on the other, passing through
temporary suspensions and economic sanctions. The House
of Commons' Speaker has the right to put the question to
the House, in case of disorderly conduct consisting in
disregard the authority of the Chair itself or in
disturbance of a Committee session, <that such Member
be suspended from service of the House>, for five
sitting days at the first time, twenty days at the
second and the remainder of the session at the third. If
the French Speaker calls a Member to order, only a moral
censorship is cast. If this call is repeated, it will be
recorded in the minutes the Member will lose one quarter
of his/her allowance of the current month. The third
call will mean a censure, with one-month allowance loss.
The censorship with temporary suspension from the
precincts of the Assembly will suppose two months loss,
the escort of the Member to the main door of the Palais
Bourbon by the Senior Usher and the inability to vote
for fifteen or thirty sitting days.
These
Committees also deal with authorisation demands arising
from the judicial power or from the police forces to
keep under arrest or to try Members caught in cases of
flagrant offences.
Aside from criminal responsibility outside the
House, the most common breach of privileges are related
to issuance of wrong information, disrespect to the
secrecy of a Parliamentary meeting, disregard to the
Speakers orders and more generally disturbance to the
freedom of debates, false statements of Members
interests and properties, use of a Member's position for
different activities as those related to his/her
official office as well as non-attendance of the basic
duties of a Member, such as Committee meetings, plenary
session and particularly votes.
The
general principle of the parliamentarians' inviolability
has reached a reasonable limit in the case of flagrancy.
The police report to the Houses, their Speakers, or the
Committees on privileges whenever a Member is arrested.
The Judges are also obliged to inform the House of their
intention to charge or prosecute a Parliamentarian. The
House will then have no more powers than taking note of
the fact either delaying the judicial process till the
session has ended when the protection is weaker (France)
or voting on the submission or rejection of the Judicial
authority where the rights of Parliamentarians are
stronger (Spain). The protection is generally absolute
and strongly defended by these Committees when a member
is charged or arrested because of his/her opinions. The
freedom of opinion, oral and written, of the citizens
and, even more, of an MP, tends to be absolute and not
subject to any restraint or threat by individuals nor by
the State.
9.
Interaction between Members and Constituencies
The
Parliament represents the Nation and the Nation is
composed of its citizens distributed throughout the
territory in administrative divisions that are regulated
by the electoral laws and codes so as to allow
constituents to express their political opinions through
voting. Constituencies
are therefore the basic territory of an MP although, as
soon as elected, s/he represents the entire Nation.
The relation between Member and constituents is a
matter of concern for all Parliaments, though the
facilities and procedures do not seem to pay due
attention to this relation.
The more mature Houses have certainly provided
offices and staff to its Members but only in very rare
cases these offices are allocated within the
constituencies. The
Parliament cares for a certain comfort as a means of
facilitating the work of the Parliamentarians as Members
of the House, more than they seem to enforce their
capacity as representatives of local interests.
In Asia, the Indian system of allocating 1 Crore
Rupees to each constituency, for the undertaking of
projects on recommendation of the concerned MP, is
totally unknown to Western Parliaments.
In all Houses Members fight for a broader
appropriation of public resources to be invested in
their constituencies but no specific provision is
foreseen in the budget or in the procedures for that
purpose.
The
exception to this rule is to be found in the Australian
House of Representatives and Senate where not only do
all Members have offices in the Parliament Building and
one staff engaged in Canberra, but also two
supplementary staff hired to work in an office that they
are provided with in their respective constituencies.
Spain, France and the USA follow the general rule
of providing facilities in Madrid, Paris or Washington
but not in the respective places were the Deputies,
Representatives or Senators have been elected.
The specific system of the UK allows Members to
decide whether their links to the constituency will be
stronger or if they shall act more as Parliamentarians
based in Westminster.
Members are currently paid a salary to “enable
them efficiently to discharge the duties of the service
without undue financial worry and to live and maintain
themselves and their families at a modest but honourable
level” (Committee on Remuneration of Ministers and MPs
Report, 1964). The
Parliament has the right to consider specific cases on
an individual basis, more recent examples being the
attention paid to blind Members (increase of 50% of
their allowance) or disabled MPs (increase of 33%) to
provide them with, as much as possible, equal
opportunities to discharge their duties.
A similar amount to the MPs salary is allocated
to each Member as an office cost allowance for
secretarial and research assistance expenses.
Again, the Member will decide if his office and
staff are to be based in Westminster or in his/her
constituency. Members
are entitled to free stationary, free inland telephone
and postal services from the Parliament.
The
staff members will have a limited free travel allowance
between London and the constituency of their MP. The
staff of a deceased, retired or defeated Member will be
reimbursed with a “winding-up” allowance.
To ease the relations between Members and
constituents, the so-called provincial MPs are entitled
to an additional cost allowance whenever their
constituency is outside inner-London to cover additional
expenses incurred while performing parliamentary duties.
For the same reason, Members can also claim for a
unlimited reimbursement of car and bicycle mileage, upto
25,000 miles a year without furnishing any detailed
particulars of the journeys.
Members are also provided with travel warrants,
to be exchanged for an appropriate ticket for journeys
by rail, sea or air on parliamentary business within the
triangle of home, constituency and Westminster.
The same system applies to French and Spanish MPs
without any limitation inside the national territory.
Spouses and children of Members of the House of
Commons are entitled to 15 yearly travel warrants each
between London and the constituency.
Members will be also reimbursed for the
travelling costs incurred on parliamentary duties
between the UK and European Institution in Brussels,
Luxembourg or Strasbourg up to one two-days visit a
year. Finally
a resettlement grant to assist with the costs of
adjusting to “non-parliamentary life” is payable to
any person who ceases to be an MP at a general election.
The amount is based on age and length of service,
and varies between 50% and 100% of the annual salary
payable to a Member at the time of dissolution.
Relations
between Members and constituencies are a different
issues that the relations between the Parliament and the
Regions. In
the UK, the Welsh and Scottish Grand Committees and the
Standing Committees on Regional Affairs in England
cannot be confused with a Parliamentary link with
constituencies. It
is far more a system to show the specific interests of
the House for the various territories, which compose the
United Kingdom. Most
of the Upper Chambers of the Continental European
Parliaments have, as one of their main constitutional
duties, to represent the regions (Italian Senate),
länder (German Bundestag), and autonomous communities
(Spanish Senate). As
these Upper Chambers are known as Chambers of the
Regions, no specific Committees are established to deal
with regional affairs in the Lower Houses.
10.
Gender Balance and Women's Issues
Among
the new challenges that Parliaments have had to face in
the western democracies at the end of the seventies, two
have been particularly significant and have resulted in
changes in the Committee system.
The first is environmental issues have been
highly debated in the public opinion. Accordingly,
Parliaments have taken measures to reflect the
discussions held by the citizenship outside the House.
The second is women's issues which have also introduced
a new range of discussions and parliamentary debates,
most commonly under the pressure of women MPs. The
Committee System of the Parliaments has been the first
instance to react and set up institutional forums for
consideration of these new challenges. Except in Houses
with very few Committees, specific Committees have been
set up (UK House of Commons, Spanish Congress) to deal
with the environmental legislation and to oversee the
Executive Power's ecology policies.
The
Scandinavian and Nordic Parliaments have been pioneers
in accommodating these challenges in their structures.
They have been the first to constitute specialised
Women's Affairs Committees in their Parliaments, a
proposal that has been followed less by other Houses in
the West. Among the analysed Parliaments, only the
Spanish Parliament has set up a specific Joint Committee
entitled <For the Equal Opportunities of Women>,
with the same wording as the Government's programme on
women's rights. Parliaments alone cannot be blamed for
not paying enough attention to women's demands. There
are also fewer Ministries for Women's Affairs than
governmental departments for Ecology or Environment,
demonstrating that the Executive Power is often as slow
in creating specialised Agencies for the arising
challenges as the Legislative Power is in reforming its
Committee System. Generally
Parliaments discuss women's issues inside the frame of
Social Affairs Committees, even if the women MPs have
requested a broader approach. Discussions on women's
rights are a so-called horizontal issue, crossing
matters such as education, employment, health (and
especially reproductive health), aging, pensions, social
welfare, security and criminality, and even
participation in the National Defence and the Armed
Forces.
The
increasing participation of women in politics is
reflected by a larger presence of women MPs in the
different Houses of the West. Again, the North of Europe
(Sweden, Denmark, Norway and Finland) heads the ranking
of women representation as much in local elected bodies
as in the Government, and certainly in the Houses of
Parliament. A
few examples demonstrate the actual size of the women's
representation in the Legislative Power: in India, 7% of
the elected MPs are women; there are only nine women
Senators in the US out of 100 Members of the Upper
House, out of 435 elected representative in the US
House, 58 are women (13%); out of 659 elected MPs in the
last elections to the House of Commons, 120 are women, a
share of 18%; the Australian House of Representatives
counts 33 women Members out of 148 (22%); the Australian
Senate shows a larger percentage, 24 out of 76 with a
woman Speaker (32%); and finally, out of 356 elected MPs
in the Spanish Congress, 35% are women.
The
electoral codes have also integrated different ways and
means to increase the presence of women in the
Parliaments. At the start, political parties were left
free to decide how many women they would present to the
elections, so to attract the women's vote. Internally,
the parties' statutes followed a slow evolution, from a
minimum 20% or 25% representation share for women, to a
third of the posts, to a final rule where none of the
genders is allowed to represent more than 60% nor less
than 40% of the candidacies. The most progressive
countries concluded that these systems, though positive
at an initial stage, did not guarantee the final
representation at the expected percentages. Parties did
include women as candidates in constituencies where the
rivals were to win or in the back-row posts, in States
with an electoral list system. Furthermore, the
percentage was open and freely decided by each Party,
permitting variable representations depending on the
internal statutes.
The
following step was to approve a general legislation,
either in electoral codes or even in a constitutional
reform, obliging the Parties to reserve a certain number
of seats in their candidatures for women. Still, the
participation of women is far away from achieving a
proper gender balance in the Parliaments, as far as
gender balance is from women's participation in the
Executive or the Judiciary. The Legislative is though
the most open National Power to the women's presence.
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