Belgian Senate reform

authored by JD Mussel

Since 1970, Belgium has gone through no less than 6 constitutional reforms, possibly more than any other western democracy during the same period. Most importantly, these have transformed it from a unitary state into a full-fledged federation (since the 4th reform, in 1993-95). One of the results to come out of the prolonged (and record-breaking) government formation of 2010-2011 was agreement on a 7th constitutional reform, which will enter into effect after the upcoming elections in May 2014. The most well-known of the changes to be implemented is the splitting up of the Brussel-Halle-Vilvoorde constituency along language lines, a measure mandated by the Constitutional Court, solving a quandary which has been a major stumbling block in government formation and reform negotiations over the last five years.

There are more parts to the constitutional reform, but the most important change is probably to Belgium’s Senate. Before 1993, the Senate was perfectly co-equal with the House of Representatives, to the point that governments needed the confidence of both houses. This did not cause much instability, as the houses had similar political compositions; the Senate was largely elected, at the same time as the House, with some members indirectly elected by provincial councils, and the last group co-opted by the first two (Additionally, some Princes were, and until next year remain, members of the Senate by right, but in practice they do not participate or vote). In 1995, the composition of the Senate was changed to 40 directly-elected, 21 elected indirectly by the new Community/Regional parliaments and 10 co-opted members, while its powers were drastically curtailed: its powers to remove a government, as well as block supply, were removed, as were its powers over a host of issues for which the House was designated as having the final say. The Senate retained its veto on constitutional amendments and other changes to state organisation, federal relations and treaties. For other matters bicameral procedure became ‘optional’ – the lower house could decide what to do.

The newest reform will change the composition of the Senate to 50 elected indirectly by the Community/Regional parliaments and 10 co-opted, removing all directly-elected members. Its powers and functions will also be hugely curtailed: it will no longer take part in regular legislation, will no longer have the power of inquiry or to ask ministers questions. The only legislative power it retains regards to the constitution and the monarchy. Instead of being a true legislative chamber, the Senate is supposed to become a forum for the Regions and Communities. The reform was a compromise between those wishing to abolish and those wanting to retain the chamber (the latter being mainly French-speaking parties, if I’m not mistaken).

The difference in political composition that is likely to result may justify a certain curtailment in the Senate’s powers, but why that should mean it abolishing its legislative role entirely, let alone taking away its powers of inquiry, is somewhat beyond me…

17 thoughts on “Belgian Senate reform

  1. Ironic if Belgium’s Senate morphs from “mostly elected by popular vote” to “indirectly elected by regional councillors” around the same time as Ireland’s Senate mutates in the opposite direction.
    This would leave Australia, Italy and… anyone else? as the only parliamentary democracies where the upper house can legally veto budget measures.

  2. As I wrote above, the Belgian Senate lost its budget-veto powers in the 1993-95 state reform. Parliamentary democracies that still have the power to block supply include, as Tom said, Australia and Italy, as well as the Netherlands and Canada.

    • Well, I might be missing something, but a quick check in the constitution revealed no special provisions on passing money bills to the effect that the Senate had a lesser veto on them… I also seem to remember the Senate challenging some new sales tax during the Mulroney government. But I’m curious to hear if I am indeed mistaken.

  3. Back in the 1970s I read-ed in a couple of high school level civics textbooks about Canada that the Senate was not allowed to block budget bills. But JD is correct that there’s no “1911 Parliament Act”-type procedure in either the 1867 or the 1982 versions of the Constitution. Ironically, the area on which the document does explicitly allow a Senate bypass is Constitutional amendments – ie, a level “more deliberative” than ordinary legislation, whereas budget measures are usually regarded as “less deliberative” and thus okay to be fast-tracked using a one-house procedure.
    I wonder if the answer might be that the Canadian Supreme Court (and before that, the Privy Council) regarded the justiciable, entrenched, small-c “constitution” of Canada as including – much more than in most other countries, possibly excepting Germany – unwritten conventions and understandings, as well as the written text.This might, I think, be because the 1867 preamble aspires to give Canada a constitution “similar in principle to” the UK’s – which has (ironically) been invoke to justify judicial invalidation of statutes that go against the “vibe” of the document even if they do not contradict any of its words. (eg, the free speech cases in the 1930s). Thus we now see Canadian governments asking the Supremes to rule on what constitutional conventions do and do not require.
    In other polities, conventions and customs may be regarded as very important, and breaches as taboo, but they are still legal. When the Lords rejected Supply in 1910-11, and when FDR stood for a third term in 1940, and when the NSW and Qld governments replaced vacating Labor Senators with anti-Labor appointees, there was much grumbling that this was highly improper, even “unconstitutional” in a broad sense, but nobody suggested that the courts should throw out these actions as legally void. (Note though that in all three cases the written law was amended shortly afterwards to make the unconventional illegal as well!)

    • Yes, forgive my tardiness in replying, but Tom is correct. Canadian constitutional law puts great weight on its unwritten aspects, one of which is that the government is responsible only to the House of Commons (that is, the Senate cannot withhold either confidence or supply).

      Attempts to evade these conventions are usually met with wide-ranging public disapproval – see, e.g., the overwhelmingly negative reaction to Stephen Harper’s appointment of a Senator to Cabinet.

      Incidentally, this is one of the main reasons why an elected Senate is a terrible idea for Canada – because, being elected, it will feel much less inhibited from breaking these strictures, resulting in a much less functional Parliament.

      • I don’t really see how this works. What incentives are there for senators to toe the line so closely with these conventions? And what about the example I gave that happened during the Mulroney government? And how the PM appointing senators is contrary to any rule at all is a complete mystery to me…

        As to an elected Senate, there are plenty of reasons why that would still be a great idea. Normatively it could well become an improvement on the current situation where a majority government elected with 38% of the vote doesn’t have to bargain with anyone to shape policy. There are also many ways of mitigating the deadlock that may sometimes occur. For one, the possibility of appointment of extra senators is already there and is unlikely to be removed. And besides, the Australian parliament with its powerful elected upper house is hardly the archetype of constant dysfunction. The government there doesn’t always get exactly what it wants, but I don’t think that’s necessarily a bad thing.

      • Surely a better answer is that Canada needs an elected senate with redefined functions, including a ban on blocking supply or refusing confidence.

      • Alan, absolutely, and such a power reduction is also the sort of thing I mean when I say more deadlock-mitigating factors are needed. With an incongruently-elected Senate, there’s bound to be disagreement/deadlock on some issues, and if we don’t want that to include issues that the government depends on (ie supply), the obvious solution is to remove the Senate’s power to block supply.

  4. Even for Belgians following political news, the senate reform passed rather unnoticed. The ‘sixth reform of the state’ is in the first place a compromise over the dissolution of the bilingual BHV electoral district and another transfer of legislative powers (and money) to the ‘states’.

    If there is any discussion about the senate reform, I have the feeling we get stuck over the issue if there is a model for a senate in a federal state : The American/Swiss/Australian model – directly elected? The Austrian/Indian model – elected by the state parliaments? The German/EU model – state governments? Or can we have federalism without an effective senate (Canada)?

    • I think the most important question is actually not composition but effective power. A large number of upper houses, federal or not, today have little more than a power to delay legislation by a year or so.

      • For example, the Indian and Austrian upper houses are indeed both elected indirectly by the state assemblies, but the Austrian one can only delay, while the Indian one veto every non-money bill (subject to joint sitting as deadlock-breaker).

  5. What about choosing Senators by Sortition, by randomly choosing citizens on the voters roles to be Senators? Or by using a statistical method by choosing people not ordinarily elected to parliaments. This might improve democracy by having non-politicians serve in another chamber, proposing laws, and new ideas. It seems strange that the Greeks used this a lot, and there is a remnant of this in the selection of juror.

    • In my wildest dreams I would have three houses, an assembly and senate elected by ballot and a dicastery (Athenian rather than Vatican sense of dicastery).

  6. Belgium must be one of the rare cases where a democracy has replaced direct popular election with indirect election. Apart from the Irish Senate after 1925, the German presidency after 1933-49 and (arguably) Australian Senate casual vacancies after 1977, I can’t think of many other examples.
    Given that the main obstacle to an Australian republic is the sizable bloc of professed republicans who will vote to keep the monarchy rather than accept a president not chosen by popular vote, I’m curious how the Belgians reacted to this reduction of their franchise. No mass rallies? No lifting the bricks in the picturesques town squares?

    • Ahem, my understanding is the main obstacle to an Australian republic is the sizable bloc of professed republicans who will vote to keep the monarchy rather than accept a president elected by popular vote. My father and I were actually quite proud that the 1999 referendum was the only occasion in our lives that we had voted the same way.

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