Why do referenda undermine parliamentary sovereignty?


Martin Sebaldt

To person

Dr. phil. habil., born in 1961; Holder of the chair for comparative political science (focus on Western Europe) at the University of Regensburg, Institute for Political Science, Universitätsstrasse 31, 93053 Regensburg. [email protected]

Opposition is a sign of modern democracy. It has long been shown that it contributes significantly to the ability of political systems to learn through persistent control of the government, through co-creation and independent initiation of laws, as well as through its status as a personal alternative. In their idealization one does not have to go as far as Lord Bolingbroke, who in the early 18th century believed that he recognized the parliamentary minority of England as the true "patriots" who would have to permanently monitor a government tending to mismanagement and thus prevent damage to the country .[1] Nevertheless, there is no question that such corrective measures by the opposition are still essential for the functioning of pluralistic orders - even if the government to be controlled should not be so riddled with corruption as the Whig government of Lord Walpole, which Bolingbroke attacked.

However, the general acceptance of this fact has by no means led to the opposition always and everywhere opening up those possibilities of action that it needs to successfully carry out its range of tasks. An international comparison reveals a whole series of legal and institutional screws that can be used to adjust the power and function potential of the political minority. [2] In this article, this set of instruments is shown and it is established that the main drivers of the political power of the opposition are not anchored in simple legal regulations to which the ruling majority would have easy access, but that they are rooted in the nature of the entire political order. In essence, this is good news: Ultimately, governments can only influence the potential of their opponents to a limited extent, especially since the opposition draws its strength from tradition and political conventions.

Parliamentary structures

The first set of factors that have a decisive influence on the opposition's ability to shape itself is due to its primary political stage: parliament. On the one hand, the general structure of the parliament plays a role here. Representative bodies consisting only of a single chamber stand in opposition here to bicameric organizational models, in which the two houses of parliament can either have completely equal rights or be graduated from one another in terms of their rights. For example, after the abolition of the Bavarian Senate in 1998, the German state parliaments consisted of only one chamber, and this pattern can also be found frequently in international comparison, for example in the Finnish Eduskunta or the Luxembourgish Chambre des Députés.

On the other hand, the Chamber of Deputies and the Senate are completely equal in Italy, not least when a government is formed or when it is voted out. Despite various attempts to restrict the power of the senators through constitutional reform, this "bicameralismo perfetto" has survived to this day. [3] The situation is similar in Switzerland, where the National Council and the Council of States also have identical powers, although there is no formal right to vote the government out of office. [4]

Finally, Spain can serve as an example of an asymmetrical two-chamber system: In the Cortes Generales there, the nationally elected Congreso de los Diputados clearly dominates as the "representative of the Spanish people" compared to the Senado, which, as the "chamber of territorial representation", is not involved in the formation of a government and with the exception of constitutional amendments, too, only has a suspensive veto right that can be overruled by Congress. [5]

In a first step, this leads to the conclusion that the opposition has better opportunities to develop in a bicameral scenario than in a single-chamber parliament. Because while in unicameral peoples' representative bodies the balance of power after the parliamentary election is usually fixed for the rest of the legislative period, including the minority position of the opposition, bicameral scenarios are much more unpredictable here and, on average, also more favorable for an opposition: On the one hand, it owns it from the start two different podiums of political self-expression; the political orchestration of the decision-making process by the government, which is much simpler in clear, single-chamber structures, is made much more difficult here in favor of its parliamentary opponents. In addition, this opens up the possibility of different majorities, which give a parliamentary minority in one house a significant increase in power through their majority in the other, for which Germany is a good example: In times of an opposition-dominated Federal Council, the Bundestag minority has greater potential to participate in shaping the federal government with reference to impending blockades in the regional chamber, it is much easier to induce concessions. [6]

Variable work patterns

But the parliament's internal work and decision-making patterns also have a major influence on the potential of the opposition to have an impact. Ideally, following Winfried Steffani's current typology, a distinction can be made between redeparliamentary and labor parliamentary structures. [7] While in the first scenario the controversial and public-oriented dialogue dominates in the plenary and, on the other hand, the factual, detailed work in the committees is of a subordinate nature, in the second scenario it is exactly the opposite: the main work has already been carried out through preliminary clarifications within the committee; the mostly sober plenary discourse then only has a notarial function.

A classic example of the first scenario is the British Parliament: House of Commons and House of Lords are still characterized by redeparliamentary structures and procedures to this day. The main focus of the work therefore takes place with ritualized dialogues in the plenary. The committee phase only plays a secondary role, especially since the legislative committees, which are individually composed for each individual legislative proposal, are not very professionalized. [8] Also the introduction of constant controlling select committees has changed little in this overall picture.

The French parliament also tends to be shaped by this pattern - albeit not as a result of its own decision, but by the architects of the Fifth Republic: In particular, founding President Charles de Gaulle, as an outspoken opponent of strong parliamentary power, placed great emphasis on strengthening it through a series of constitutional provisions restrict. [9] By limiting the number of committees in each chamber to originally six or now eight, the National Assembly and Senate have only partially effective commission systems to this day, because professional and independent material work is deliberately made more difficult in the large committees created with three-digit head counts. The problem is usually reduced by the fact that only some of the committee members are present, and informally created "delegations" also enable professional work in small groups. However, this is a long way from an undisturbed development of factual professionalism, especially since further requirements of the constitution for regulating the parliamentary decision-making process, for example early closing of debates or defending against amendments, further undermine the opposition's motivation for parliamentary participation.

In contrast, the labor parliamentary moment traditionally dominates in both chambers of the US Congress due to the overwhelming weight of the committees, which are also internally characterized by a high degree of division of labor and specialization of the MPs, who thus also advance to cross-party accepted experts. [10] Speech-parliamentary plenary discourse is therefore of much less relevance here, especially since in Congress in the normal legislative case there are often no clear party-political fronts between Democrats and Republicans.

This leads to the second conclusion that an opposition is usually much more influential under labor parliamentary conditions: On the one hand, their MPs have more detailed knowledge here thanks to their many years of practical work, which they can not only use effectively to help shape legislative projects, but also to create a more powerful one Criticism of government work. On the other hand, this committee-centered parliamentary scenario also leads to a more cooperative style of dealing between the government majority and the opposition: working on the details is simply not compatible with permanent party-political polarization in the long run. This gives the opposition noticeable potential to help shape, especially behind the parliamentary scenes, which my own studies on the German Bundestag have shown. [11] And last but not least, formal parliamentary minority rights are regularly better developed in such scenarios, especially in the form of an opposition-friendly right to investigate. In redeparliamentary scenarios based on the British model, on the other hand, the parliamentary minority can shine more effectively on controversial issues, but within parliament its influence on the government majority is rather modest, especially since the rules of procedure there through the regulation of questions and debate rights and the dominance of the government are more unfriendly to minorities when setting the agenda.