On 11 and 12 June 2018 the Constitution Unit co-hosted two workshops with Rome LUISS university, the first being on ‘The challenges of reforming upper houses in the UK and Italy’. The contributions of Unit Director Meg Russell and Carlo Fusaro of the University of Florence were summarised in the first two posts in this series. Here, Roberta Damiani summarises what was said by the other contributors.
Claudio Tucciarelli, Chamber of Deputies.
Claudio Tucciarelli discussed how Italian ‘perfect’ bicameralism, where the two chambers have the same powers and functions and are both directly elected (as explained here), was a ‘disappointing’ outcome that in the end emerged from the negotiations of the 1946 Constituent Assembly. Nevertheless, he argued that some of the accusations that are often made against Italian bicameralism are not true. For instance, it is generally said that the system is too slow and that the process to approve bills is too lengthy, but Tucciarelli argued that ‘good decisions are better than quick ones’, and he pointed out that the majority of bills in Italy are approved without the use of the navette procedure (shuttling bills back and forth between the chambers). Furthermore, he remarked that the 2016 reform proposal would have diminished the legitimacy of the Italian Senate. The lack of legitimacy is often a cause of controversy about second chambers (as argued by Meg Russell), and hence Renzi’s reform would have introduced problems of a different kind.
Francesca Rosa, Associate Professor of Comparative Public Law at the University of Foggia
Professor Rosa discussed the main hurdles to reforming Italian bicameralism. One obstacle is very long-term: simply that the complete symmetry of Italian bicameralism is now very long-standing. While the Chamber of Deputies and Senate always had the same legislative powers and functions, originally the 1948 republican Constitution predicted at least some minor differences between the two chambers, in terms of the duration of their terms (five years for the Chamber and six years for the Senate), and in terms of composition, as the Senate should have been elected ‘on a regional basis’. However, these differences were quickly nullified: in 1953, the terms of the two chambers were equalised to five years, and the electoral laws used to elect the Senate, which never went beyond using the regions as constituencies, did not result in meaningful regional representation This made the two chambers completely identical, and this parity has now been in place for decades – and as argued by Donald Shell, ‘inertia’ is in itself a reason why second chambers often continue to exist unreformed.
Another factor results from the introduction of regional devolution in the 1970s: the formal creation of regional institutions did not go hand-in-hand with an integration of regional interests at Senate level. Therefore, the Senate never became an effective ‘chamber of the regions’ (despite reform attempts to move in that direction), and this exacerbated the sense of ‘crisis’ of Italian bicameralism, as the Senate still didn’t serve a unique function.
While the two factors above are related to the constitutional setting itself, in the short term there is also a more political reason for the ‘crisis of bicameralism’, resulting from the electoral law introduced in 2005. This electoral system allocated a plurality bonus differently in the two chambers (on a national basis in the Chamber of Deputies, and on a regional basis in the Senate). The result was a guaranteed government majority in the Chamber, but not in the Senate, leading to differences in composition of the government majorities in the two chambers, which in turn contributed to government instability. Hence bicameralism also became a factor fuelling political crises.
Professor Rosa argued that there are some broader lessons to be learned from the Italian experience. In terms of how to implement constitutional reforms, it shows the difficulty of approving big reforms via referendum – a point similarly made by Meg Russell in her presentation. Renzi was so committed to achieving his reform that when he lost the referendum he had to resign (this might have served as a lesson for the current government which, while talking about the possibility of cutting the number of MPs, has made no promises about bicameralism reform). The likelihood of any constitutional reform occurring in the foreseeable future is indeed very slim – so much so that several commentators have argued that other routes should be found to implement changes to the bicameral system, such as changes to the Italian parliament’s standing orders.
Giovanni Piccirilli, Assistant Professor of Constitutional Law at LUISS
Professor Piccirilli’s presentation focused on the latter point made by Professor Rosa. Despite their entirely symmetrical nature, the two chambers of the Italian parliament are able to set their own rules of procedure. He argued that these have been the real driver of differentiation between the two chambers. Procedural reforms are often seen as an inferior mechanism to formal constitutional reforms, but might create similar constitutional effects without the need of a referendum (indeed, usually the public is quite uninterested in reforms of parliamentary rules and procedures. But while historically it has been argued that the two chambers need greater differentiation, current trends – in recognition of the fact that reforming the bicameral system itself is very unlikely – are towards greater harmonisation of the two chambers’ rules, to make them more uniform. Some people have concluded that if the two chambers cannot be made functionally separate, through major reform, it is better to make them indistinguishable in order to reduce tensions between them. Very recently, a reform of the Senate’s standing orders was approved in December 2017; Piccirilli argued that the Senate agreed to these changes because it wanted to send a signal that it is a lively institution, responsive to changing circumstances. Yet one of the major aims of this reform was to transplant some procedures from the Chamber of Deputies into the Senate. For example there are now stricter limits to the changes that party groups can undergo during a legislative term, and stricter amending rules.
Mario Midiri, Professor of Public Law at the University of Modena
Professor Midiri proposed a different path. Having worked as an official in the Italian Senate for many years, he agreed that some degree of rationalisation is needed to make Italian bicameralism more efficient. He was sceptical of the Renzi reform, as it would have introduced indirect elections for senators, and Midiri argued that appointment of a second chambers’ members can introduce scope for patronage; this was one of the main reasons why the 2016 reform proposal was seen as problematic. But he argued that in the case of Italian bicameralism there is scope to achieve some differentiation via specialisation, rather than moving in the direction of even more symmetry and equalisation. Hence important changes to the bicameral system could be achieved without the need for formal constitutional reforms; he mentioned Canada as an example to look at in this respect. For instance, the Italian Senate could develop a greater specialism in terms of supervising EU affairs, or establish a system of investigative committees.
Cristina Fasone, Associate Professor of Comparative Public Law at LUISS
Professor Fasone picked up on the last point made by Professor Midiri. She explored a historical perspective of how the structure of parliaments has evolved from ‘multi-chamber’ parliaments to bicameralism or unicameralism. She then analysed how in a variety of cases small-scale reforms, including constitutional ones, as well as standing order reforms like the one just approved by the Senate, can significantly affect the functioning of bicameralism. Therefore, large-scale reforms are not necessary to achieve profound changes in the functioning of bicameral systems – in a context as stable as the Italian one, this could be important.
Nicola Lupo, Director of the Centre for Parliamentary Studies
Professor Lupo, who chaired the workshop, closed the session by remarking how the 2017 judgment of the Italian Constitutional Court on the (never used and now surpassed) 2015 electoral system stated that ‘This Court cannot be exempted from noticing that the outcome of the constitutional referendum held in December 2016 confirmed a constitutional structure based on the equality of powers and functions of the two elected chambers’. Therefore, in light of the failed 2016 referendum and of current trends, there is a very large consensus that for Italy a constitutional arrangement whereby the two chambers have symmetrical powers, including both being involved in the confidence relationship with the government, is here to stay – whether that is a desirable thing or not.
This is the third in a series of blogposts. The first post in the series, by Unit Director Meg Russell, is a comparative overview of the reasons why reforming upper chambers is difficult everywhere, drawing from evidence on several countries, including the UK House of Lords. In the second post in the series, Professor Carlo Fusaro of the University of Florence discussed the specificities of the Italian case, in particular the failure of the latest Senate reform attempt in the 2016 referendum.
About the author
Roberta Damiani is a PhD candidate at the Constitution Unit. Her research is focused on the role of the Senate in the Italian legislative process.