Venice Commission - Report on Bicameralism

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The Netherlands

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?

Since 1815, the Netherlands, as an independent State, has had a bicameral system. There is the politically predominant Tweede Kamer: House of Commons/Lower House/House of Representatives; and the Eerste Kamer or Senate. As the Eerste Kamer (literally First Chamber) would generally be referred to in English-speaking countries as the upper or second Chamber, the term Senate is used here to avoid confusion.
There is some public debate going on concerning the usefulness and adequacy of the Senate. To some it is superfluous, others even believe that currently the Senate - formerly a ‘chambre de reflexion’ - has now become too political and has lost its quality of guardian of legal rationality and feasibility.

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

17.500.000 persons. 41.850 km

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 Regional form of decentralisation: municipalities, provinces, central level (Articles 123-132 Constitution). Municipalities and provinces have their own autonomy, which however can be limited by central regulation (Law, government decrees, ministerial regulations).
b) Parliamentary, presidential, semi-presidential or mixed; parliamentary system. Government is dependent on the trust of parliament. Laws are the product of Government and Parliament together (Article 81 of the Constitution).

4.How many members are in the lower house?

150 Members (Article 51(2) of the Constitution

5.How many members has the second chamber?

75 Members (Article 51(2) of the Constitution

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) Indirect suffrage, election by the Provinces (Article 55 of the Constitution)
b) territorial
i) Provinces
ii) pr NO
c) Members of the Senate generally are members of political parties that are also represented in the House of Representatives
d) NO imperative mandate

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?

18 years (Articles 55/56 of the Constitution).
Same as lower chamber
NO other requirements for election than those for members of lower chambers

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?

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.

Duration: 4 years (Article 52(1) of the Constitution).
Does it coincide with lower chamber? NO
Does the second chamber follow the continuity rule? NO
Can the second chamber be dissolved ? Purely theoretical, because its Members will be elected by the same members of the provinces.

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

Until some 10 years ago the majority in the House of Representatives also had the majority in the Senate, but nowadays that is seldom so

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)?

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?

Apart from some Constitutional provisions on voting of Parliament, the rules of procedure governing the Senate are internal regulations. Are they different from the lower chamber’s and what are the most relevant differences? Too much detail. Are the internal regulations controlled by the constitutional judge? NO

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?

i) Financial: see legislative
ii) legislative; the House or Representatives has the right to amend bills; the Senate does not (only has a veto power): Article 85 of the Constitution.
iii) oversight/control; the same
iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc. NO
v) interim powers (e. g. in case of dissolution of the first chamber) Not relevant

a) Distinguish issues which are not submitted at all to the second chamber. No relevant differences.

b) Are there specific appointments that must be done solely by the second chamber? NO

c) The Senate has no right of initiative (Article 82 of the Constitution, read a contrario).

d) What happens in case of disagreement? There are no mechanisms to solve this. In general the Senate was, and to a certain extent still is, reluctant to veto a bill, because the bill already has been approved by the House of Representatives.

e) Draft laws and other drafts to be examined by Parliament or the legislature are first submitted to the House of Representatives, Articles 82/83 Constitution.
f) The government is responsible to the House of Representatives (which comes first in the legislative process), but also to the Senate.
g) Laws that concern the status of the monarch (Articles 28-37), declarations of war (Article 96(3)) and of a state emergency (Article 103(3) of the Constitution) are decided on by a joint meeting of both chambers.
h) Does the second chamber have a specific role in emergency situations? NO.

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?

NO.

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

Apart from legal competences (right of initiative and right of amendment) the House of Representatives has a political primacy, for several reasons: the House is elected directly, the Senate indirectly (through the provinces); the Members of the House are fulltime politicians, the Members of the Senate are parttime politicians, spending most of their working time in other functions; and – very relevant – the Government/Cabinet is formed in relation to the House of Representatives. As a consequence, the rule of confidence applies more strongly to the House of Representatives.