Calls to reduce the powers of the Dutch Senate are not based on arguments relating to constitutional law but are politically motivated and reflect the tactical problems facing the current minority government. ‘A constitutional debate about the Senate is certainly possible, but it should not reflect the political difficulties facing this current cabinet,’ argues Douwe Jan Elzinga, Professor of Constitutional Law at the University of Groningen. He has identified two specific areas that could be used to re-examine the role of the Senate.
The Dutch system of constitutional law gives both the Senate and the House of Representatives the authority to approve or block government proposals. ‘The only thing that distinguishes the Senate from the House of Representatives is the fact that the Senate does not have the right of amendment and thus cannot amend plans itself.’ This means that members of the Senate have the right to say ‘no’ to any bill, regardless of the circumstances. Elzinga: ‘The PvdA and VVD cabinet has gravely underestimated this situation. The budget agreement recently reached with other parties is purely about the budget. The problem of their minority position in the Senate will certainly arise again in other issues.’
Elzinga: ‘It is up to the members of the Senate themselves to decide whether they really want to show their teeth. We should not be surprised if they take a strong stance every now and then. The Senate has actively opposed several bills in the past: from the elected mayor proposed by then-D66 minister Thom de Graaf in 2005, to the referendum crisis in the second term of the Kok cabinet in 1999. This is entirely in keeping with the remit of the Senate. The current criticism of the Senate’s right to block bills has undertones of players protesting about the rules when they find themselves on the losing side. It may be unfortunate that the rules exist, but it is the stark reality of constitutional law.’
Elzinga has identified two specific areas in which the role of the Senate could be renegotiated in terms of constitutional law. One involves replacing the power to block cabinet plans with the right to have them reviewed: the Senate would have the right to return a bill to the House of Representatives to be improved. Elzinga is against any such change: ‘I would describe this as a poor alternative with the same function. Why not just do away with it altogether?’
The second option is based on a constitutional amendment going back to 1983, which drastically changed the way that members of the Senate are elected. Until then, half of the provinces elected half of the senators every three years. This meant that Senate elections had a different rhythm from parliamentary elections.
Elzinga: ‘In 1983, it was decided that all senators should be elected at the same time
. As a result, the composition of the Senate reflects general opinion in society at the time of the elections. This fuels the expectation that the Senate and the House of Representatives will work together.’ Elzinga thinks that a return to the old system of phased elections would help, as the reform passed in 1983 seems to have done little to reinforce the constitutional capacities of the Senate.
According to Elzinga, the most important constitutional added value of the Senate is the acknowledgement that for political reasons, the House of Representatives may sometimes approve bills to which society has genuine and serious objections. ‘In politics, these objections are no match for the acute political interests that help a cabinet to secure a majority. The Senate provides a valuable second chance for allowing public objections to play a part in decision-making processes.’
The political pressures facing a minority cabinet are even greater. Elzinga: ‘And this is the main reason for the Dutch Senate still being actively involved in politics; not because of our system of constitutional law.’
Prof. Douwe Jan Elzinga is Professor of Constitutional Law at the University of Groningen.
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