Venice Commission - Report on Bicameralism

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Spain

1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?

Spain has moved from bicameralism to unicameralism throughout its constitutional history. The choice between uni/bicameralism has been an important constitutional issue because bicameralism has been chosen in "conservative" constitutions while unicameralism is a central feature of "progressive" constitutions. In the case of the 1978 Constitution (in force), bicameralism was easily adopted insofar as it represented continuity with the constituent Parliament (which was bicameral and partially elected by the King himself) and was the logical choice because Spain became a decentralised state in which the Senate was to represent the territories (art. 69 SC) although this, as will be underlined below, did not turn out to be true
There is no public debate on the preservation of bicameralism but, paradoxically, there is widespread criticism of the usefulness of the Senate. The reason may lie in the need to maintain a bicameral system because Spain is fully decentralised but, at the same time, the Senate's constitutional design makes it impossible for it to perform as a chamber representing the territories (Autonomous Communities). The Senate is perceived by public opinion as a useless chamber that merely replicates the debates of the lower chamber but with less political relevance. As a result, its legitimacy and usefulness are fiercely attacked, but its survival is not questioned. Rather, the debate focuses on how to reform the Senate so that it can play a role in representing the Autonomous Communities in the national parliament. This debate has been going on almost since the adoption of the Constitution, and many proposals for reform of the Senate have been put forward by academics, but none of the political parties has ever seriously considered a constitutional reform of the Senate.
Some (few) scholars have recently argued that it is impossible to channel territorial representation through a second chamber (particularly in Spain) and that it should be abolished or reformed to perform other functions such as better law-making or new study and research powers related to other parliamentary functions

2.What is the population of the country? What is its size?

The population is 47.5 million people. Its size is 505.990 km2

3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed

a) Unitarian or federal/regional/other form of decentralisation
Spain is a politically decentralised state, often described as halfway between federal and regional states. It is divided into 17 territorial entities (Autonomous Communities) with major legislative powers and 2 Autonomous Cities (Ceuta and Melilla) in North Africa (but in the case of these cities they have no legislative powers). In addition, there is a long tradition of local government in municipalities and (with far fewer powers) in 50 provinces (which have in part legally disappeared, except to serve as constituencies, when the territory of the Autonomous Community coincides with that of a province; i.e. in 7 cases: Madrid, Murcia, Baleares; La Rioja, Asturias, Navarra, and Santander)
Spain is often described as an asymmetric federalism due to the importance of the differences among its Autonomous Communities. For a more detailed explanation see below the answer to the last question.

b) Parliamentary, presidential, semi-presidential or mixed
Spain is a Parliamentary system

4.How many members are in the lower house?

350 members (Diputados). The Constitution establishes that the number of deputies can be between 300 and 400, but the Electoral Law (LOREG) has set the number at 350

5.How many members has the second chamber?

265 members in this Parliamentary term. It may slightly change from one parliament term to another.

6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?

a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber?)
Mixed. The majority of senators (208) are directly elected by citizens on the basis of provincial constituencies (see below). The rest (57) are indirectly elected by the autonomous parliaments (1 each regional parliament and one more for each million inhabitants of the autonomous community) which must ensure a proportional representation of the political parties within the (regional) parliament.
The electoral system for directly elected senators is quite different from the one governing the election of the lower house (which is based on a proportional system in provincial constituencies but adapted to the population of each province and with blocked and closed party lists of candidates). The singularities of the electoral system can be summarised in the following features:
(i) The number of candidates (4) per province is fixed, irrespective of the population or size of the province.
(ii) The electoral formula is majoritarian but limited: each voter can vote for 3 candidates (one less than the number of senators to be elected)
(iii) The lists of candidates are completely open, but are presented in the ballot papers grouped by parties: the voter can thus identify which party the candidates belong to, although he or she is free to choose candidates from different parties.
(iv) In practice, elections are party-based. Parties only present 3 candidates (to concentrate the vote in them) and citizens vote along party lines so they vote for the three candidates not including candidates coming from other lists. The results always mirror that: the winning party in each constituency gets 3 senators and the second party gets 1 senator. Minority parties do not obtain any representation in the Senate except for those parties with a strong presence in some territories (i.e. nationalist parties in the Provinces that make up their Autonomous Communities)

b) territorial or other criteria
i) region/provinces/municipalities/others
Senators are elected in two different ways with different constituencies:
Directed elected senators: The basic constituency is the province bur with some specialities
4 senators each province (except for the provinces in the Canary and Balear Islands)
3 senators each major Islands (Mallorca, Tenerife and Gran Canaria)
2 senators each Autonomous Cities (Ceuta and Melilla)
1 senator each minor Island (Ibiza-Formentera; Menorca; Gomera, Lanzarote, Fuerteventura, Hierro and La Palma)
Indirectly elected Senators: the constituency is the Autonomous Community and they are elected by the autonomous parliaments: 1 for each regional parliament and one more for each million inhabitants of the autonomous community.

ii) professional categories/ethnic/age/other
There are no specific rules governing the selection of senators.

c) candidates’ independence from/affiliation with political parties
All senators are members of political parties. There have been extremely rare cases of senators elected without being on party lists of candidates. However, in Senate elections it is common for political parties to reach a pre-election agreement to propose common lists, due to the majoritarian system governing these elections. But once elected, senators will belong to their party's parliamentary group.
In the case of indirectly elected senators, the Constitution provides that senators nominated by regional parliaments must reflect the party composition of the nominating chamber. Thus, they all belong to political parties and are elected along party lines

d) in case of indirect election, is there an imperative mandate or a similar practice?
There is no binding mandate between the appointing regional parliament and the appointed senator. He or she cannot take instructions from Parliament nor can he or she be dismissed by Parliament.

7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?

There are no differences between the lower and the second chamber in this issue.

8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?

Since 2007, the electoral law provides for a quota system for all elections in Spain, so that no gender can be represented on the lists by more than 60%. In the case of the Lower House, this proportionality must be guaranteed every 5 seats on the lists. In the case of the Senate, the law establishes a less strict rule: "When the candidacies for the Senate are grouped in lists, ..., these lists shall also have a balanced composition of women and men, so that the proportion of women and men is as close as possible to the numerical balance". In practice, the presence of women in the Senate is lower than in the lower house because parties often only include 3 candidates in most constituencies where two are men and only one is a woman. The same effect is frequent for senators elected by regional parliaments because the 60/40 % rule is not so easy to comply with when there are not so many candidates to select from. In any case, for the first time in the current composition of the senate almost 60% are men and 40% women, while in the lower house it is 52.6% men and 47.4% women.

9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.

The term of office of senators is 4 years (both for directly and indirectly elected senators). The Senate can be dissolved earlier by the President (prime minister) jointly or separately with the lower house. In practice, however, both chambers have always been dissolved jointly. Senate elections have therefore always been held on the same date as elections to the Lower House. Senators elected by regional parliaments also have a 4-year term of office from the time they are elected. They are elected after regional elections. Only when former senators resign or die, regional parliaments can appoint new senators before that term. Therefore, they also have a 4-year term of office, but the dates do not coincide with those of the other senators.
When the Senate is in recess (because of holidays or because it is dissolved) a special committee (Diputación Permanente) ensures the competences of the Chamber. This committee is a traditional solution in Spanish parliamentarianism to safeguard the powers of the chamber and also exists in the lower house. The committee is composed of senators appointed by the parliamentary groups in the Senate (i.e. the political parties) and in the current legislature its number is 36 (although the minimum number constitutionally foreseen is 21) reflecting proportionally the party composition of the chamber. This Committee can only "guard the powers of the chamber", but cannot exercise any legislative powers. Its members will be considered senators from the dissolution of the chamber until the new chamber is legally constituted.

10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?

Yes. It is the usual situation. Usually, the governing majority in the lower chamber is composed (alone or in coalition with some minor parties) by the party which has won more seats. Because the electoral system for the Senate is majoritarian (while the system for the lower house is proportional), the party that wins the elections in the lower house almost always obtains an even larger majority in the Senate. Therefore, it is usual for the Senate to reproduce the majorities of the lower house but with an even greater weight of the majority supporting the government. However, a different majority has occurred in two legislatures when there have been governing coalitions that included many small parties (a situation that lasted only two years) or when the majority in the lower house had little presence in the least populated provinces (this happened only once).

11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?

No. There are not significant differences.

12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?

The rules of procedure in the Senate are made up of the Constitution, the standing rules approved by an absolute majority of the chamber and the resolutions of the presidency in agreement with the committee that brings together the spokespersons of the political parties. It is the same model for the lower house and there are no significant differences except when it comes to specific competences of the Senate. The rules of procedure can be challenged before the Constitutional Court in the same way as any other statute. Also, any decision taken by the House or its bodies can be challenged directly by an individual member before the Constitutional Court if he/she considers that it undermines his/her rights, in particular the right to participate in public affairs (Recurso de Amparo parlamentario). This mechanism has given rise to a very rich jurisprudence in defence of the rights of both individual Members and minorities in Parliament
The only significant difference is the Senate's General Commission of Autonomous Communities, created in 1994 to give the Senate a stronger territorial role, including the presence of members of regional governments in the Commission with the right to speak (not to vote). However, the experience of this Commission has been a complete failure and now it hardly meets at all

13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber). a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?

Spain has an asymmetrical bicameralism in which the Senate reflects most of the powers of the lower house, but in a subordinate position. This gives the lower chamber a strong preponderance in both the legal and political sense. The executive can only obtain the confidence of the lower house, which is, moreover, the only one that can withdraw it. In legislative terms, the Senate is clearly subordinate to the will of the lower house.

i) Financial: the senate has financial powers and participates in the passing of the national budget and any other financial law in the same conditions that in any other bill.

ii) Legislative: the senate must be involved in ordinary bills passed by parliament, but in a clearly subordinate position to that of the lower house. Firstly, it has only two months to make a final decision after the bill is passed by the lower house. If it fails to act within that time, the bill becomes law and is published. The Senate can:
(1) Approve amendments to the bill. In this case, the bill returns to the lower house, which may approve the changes or reject them by a simple majority. In either case, this will be the final stage of the legislative process and the bill will become law as passed by the lower house..
(2) Veto the bill. The Senate can only veto a bill passed by the lower house by an absolute majority of its members. The veto will return to the lower house, which may override it by an absolute majority or allow two months to pass and override the veto by a simple majority.
It should be stressed that the Senate does not intervene in the validation of provisional acts approved by the Government and validated by the Lower House. At present, many of the legislative acts adopted in Spain follow this path.

iii) oversight/control: In the constitutional wording, the Senate has exactly the same powers of supervision and control (with the exception of motions of no-confidence/no-confidence and the validation of provisional acts) as the lower house. But in practice the political weakness of the Senate appears clear in these issues as well. Minor forms of accountability (information, questions, etc.) can find their way into the daily business of the Senate. But the important debates always take place in the lower chamber, including decentralisation issues. In the 1990s and early years of the millennium, a debate on the state of the Autonomous Communities used to be held once every two years. But the last debate was held in 2005 even though the rules of procedure provide for it to be held annually.

iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc.
The senate has a stronger position both in constitutional reforms and in the ratification of international treaties but do not prevail when confronted with the lower chamber.

- Constitutional reform. There are two procedures for amending the Constitution. The simplified procedure requires 3/5 of each chamber. If there is no agreement between the chambers, a joint commission of both chambers will be set up. If both chambers fail to reach the necessary majority, the reform will only be approved with the support of 2/3 of the lower house and an absolute majority in the Senate. The aggravated procedure for reforming the Constitution requires an assessment of the need for reform by 2/3 of each chamber, new elections and approval of the reform by 2/3 of each chamber. If any of these majorities is not reached, the reform will be rejected and no joint commission would be constituted

- international treaties: Relevant international treaties require the approval of both chambers. In case of disagreement, a joint parity commission will be set up. The treaty will only be ratified with the approval of both chambers or by the lower chamber alone by an absolute majority

v) interim powers (e. g. in case of dissolution of the first chamber)
No interim powers are envisaged for the senate.

a)
i) Issues not submitted to the second chamber:
(1) Confidence or non-confidence motions
(2) Validation of provisional acts
(3) Declaration of the states of emergency

ii) Issues in which the last decision is adopted by the lower chamber: almost all the issues except for the specialities in international treaties and in constitutional reforms explained above.

iii) Issues in which the Senate have a veto right: see supra in the legislative competences.

iv) Issues in which the Senate is competent without the intervention of the lower house: the only case is the authorisation to the executive to adopt the necessary measures to ensure the fulfilment of constitutional obligations by the Autonomous Communities (it has only been used once in the context of the Catalan crisis in 2017)

b) The senate has the same competences of appointment as the Lower chamber. Thus, it appoints:

(i) 4 magistrates of the Constitutional Court by a 3/5 majority (the other 8 magistrates are elected, 4 by the lower house by a 3/5 majority, 2 by the government and 2 by the General Council of the Judiciary)
(ii) 10 members of the General Council of the Judiciary by a 3/5 (the other 10 members of the Council are elected in the same way by the lower House)
(iii) 6 members of the Court of Auditors by a 3/5 majority (the other 6 members are elected by the lower house with a 3/5 majority)
(iv) Concurs in an equal footing with the lower house in the election of the Ombudsman which requires a 3/5 majority in each house

c) The Senate has the same right of initiative as the lower house, but with some particularities in terms of numbers.
The initiative can be taken by a Parliamentary Group (made up of 10 senators from the same party - 15 members in the lower house) or by 25 senators (15 members for the lower house). Once proposed, the bill must pass a debate and a simple majority vote in the full Senate. If the plenary approves the bill, it is sent to the lower house for consideration. The lower chamber may reject the bill after a debate and a vote in plenary (by simple majority) or it may agree to include the bill in its daily work.
In practice, it is very rare for a bill to be proposed in the Senate. Most bills are proposed by the government or, in far fewer cases, by the lower house.

d) See question 13 (ii) above. The usual situation is one in which the lower house can easily override any disagreement with the senate. No joint committee is foreseen, except in the case of constitutional amendments (in its simplest version) and authorisation to ratify international treaties. If the joint committee fails to reach an agreement or if it is rejected by any of the chambers, the lower chamber can override the Senate's opposition by qualified majorities.

e) In all cases the draft laws are first examined in the lower chamber with only two exceptions (art. 74 SC): the authorisation of agreements among Autonomous Communities (art. 145.2 SC) and the approval of the Inter-territorial Compensation Fund Act (art. 158.2 SC)

f) The government is accountable to both chambers, but it is only responsible (confidence-non confidence) to the lower chamber

g) It is very unusual. Joint meetings of the two chambers are only foreseen for matters related to the Crown (swearing in the King and his heir; providing for the succession, etc.). There are two joint standing committees: on EU affairs and on the Ombudsman-

h) The second chamber has no role in emergency situations. All functions in such cases are assigned to the Government and the lower house, with the possible supervision of the Constitutional Court.

But when the emergency is related to the fulfilment of constitutional obligations or the defence of the general interest of the State against acts carried out by the Autonomous Communities, the Senate (by absolute majority) is the only chamber that can authorise the government to adopt any measure necessary to re-establish legality.

14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?

Yes, there is a network of intergovernmental conferences where the ministers of the Autonomous Communities and the minister of the national government meet to discuss issues of shared responsibility and to organise cooperation between the two levels of government. But how well it works depends very much on the scope of the conference. There are important conferences, such as the Fiscal Policy Conference (the only one foreseen in the Constitution), the European Affairs Conference or the Public Health Conference (which, in particular, was essential for the management of the Covid crisis). But most conferences hardly meet at all.
There is a Conference of Presidents whose functioning has been rather irregular in a permanent context of informality, always weighed down by the refusal of the presidents of the two (politically) most important Autonomous Communities (the Basque Country and Catalonia) to participate in it. During the Covid crisis, it became a strong and effective instrument of cooperation between central and regional governments. This new climate implied the approval of an internal regulation in March 2022. These rules of procedure establish that the seat of the Conference is the Senate and that it must meet at least twice a year. In practice, since the adoption of the rules of procedure, the Conference has not met again. Both the presidents of the Basque Country and Catalonia have made it clear that they will not participate again. So this conference does not seem to have a bright future......
Interaction between the conferences and the Senate is simply non-existent.

15.Please provide any other relevant observation on the bicameral system of the country.

1) Decentralisation in Spain cannot be understood if we do not take into account some relevant singularities that may explain the asymmetry of decentralisation in Spain:
(i) The Constitution does not provide a full regulation of the Spanish form of decentralisation. It only provides for some basic rules on the process of access to autonomous self-government, the competences that can be assumed by the Autonomous Communities, the legal means to control the exercise of their competences and some basic rules on the form of regional government. Thus, the final legal status of decentralisation is the result of agreements between political parties at both national and regional level (codified in the basic autonomous laws - Statutes of Autonomy -) and, above all, of the jurisprudence of the Constitutional Court.
(ii) There are important nationalist parties in some Autonomous Communities (Catalonia, the Basque Country and, to a lesser extent, Galicia) due mainly to the important cultural and socio-economic singularities of those territories. In the cases of Catalonia and the Basque Country, these parties have obtained a majority in most of the regional elections. These parties, especially recently, have increased their demands to become independent states. In Catalonia, these demands have provoked the most important constitutional crisis since 1978.
(iii) The territorial "map" in Spain is quite heterogeneous in terms of the historical, linguistic, cultural, legal, size and population of the Autonomous Communities. It is difficult to compare Catalonia (more than 9 million inhabitants, with strong nationalist parties, a specific foral civil law and great historical, cultural and linguistic differences) with La Rioja (about 300,000 inhabitants and no singularity compared to the rest of Spain)
(iv) Even the powers assumed by the Autonomous Communities are not the same, particularly in the “foral” territories. Thus, the Basque Country and Navarre enjoy a specific and privileged financial foral regime, and in Catalonia an autonomous foral civil code is fully in force.
Asymmetry may explain to a certain extent the difficulty of the Senate to represent territorial interests when territories are so unequal among them.

2) The Senate is defined in Art. 69 of the Constitution as a "Chamber of territorial representation". But as designed in the Constitution, the Senate represents the "provinces" (an administrative entity without legislative or politically relevant competences) not the decentralised political entities (Autonomous Communities). Moreover, representing the provinces regardless of their population creates an over-representation of rural areas of Spain to the detriment of urban areas. This imbalance is also problematic from a democratic point of view. These shortcomings in the system's representativeness are not compensated for by the election of senators by regional parliaments, as they represent only 25% of the total number of senators in the chamber

3) The Senate's inability to represent territorial interests has led it to become a "second reading" chamber that replicates the debates of the lower house. Its representative imbalance, subordination to the lower house and lack of powers to express its distrust of the government have undermined its potential political importance in the system. It has remained only a chamber that can, on occasion, technically improve on legislative bills passed in the lower house. Hence, it has little legitimacy and importance in the eyes of the public