Venice Commission - Report on Bicameralism

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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?

Algeria

Both the second chamber and the lower chamber rules of procedure were established by the 1996 Constitution. It is regulated by the Constitutional Councill.

Austria

The most important rules governing the Federal Council are laid down in the Federal Constitutional Law (Art. 34 – 37 B-VG). Additional rules are defined by resolution of the Federal Council itself: the Federal Council´s rules of procedure (Geschäftsordnung des Bundesrates, GO-BR), Federal Law Gazette (Bundesgesetzblatt, BGBl.) Nr. 61/1988, in the version of BGBl. I 79/2021 (general provisions concerning the Federal Council, Federal Council members, organs, parliamentary groups, surveys, meetings and the administration of the Federal Council). These rules are not established in accordance with the ordinary legislative process with participation of the National Council and the Federal Council, but by resolution of the Federal Council alone (Art. 37 para. 2 B-VG, see below question 13) b)). Although these rules constitute no ordinary law in the narrow sense, the Constitutional Court is competent to decide on any concerning violations of constitutional law.

The most important rules concerning the National Council are laid down in the Federal Constitutional Law (Art. 24 – 33 B-VG) on the one hand as well, where on the other hand additional rules can be found in ordinary law regulations: the National Council´s rules of procedure (Geschäftsordnungsgesetz 1975, GONR), BGBl. 410/1975, idF BGBl. I 141/2022. These rules are established without the participation of the Federal Council by the National Council alone (Art. 42 para. 5 B-VG: The Federal Council has no claim to participation in so far as National Council enactments concern the National Council’s rules of procedure […].)

So both provisions – the Federal Council´s rules of procedure and the National Council´s rules of procedure – are controlled by the Austrian Constitutional Court.

Belgium

Les règles régissant le Sénat se trouvent dans la Constitution, dans des lois et dans le règlement du Senat. La Constitution (art. 195 de la Constitution) et les lois sur le Sénat (art. 77, 6° de la Constitution) relèvent du bicaméralisme intégral. Le Règlement du Senat relève de la compétence exclusive du Sénat. (art. 60 de la Constitution).

Le règlement intérieur n' est pas contrôlé par le juge constitutionnel

Bosnia and Herzegovina

The House of Peoples adopts its Rules of Procedure by majority vote. The House of Representatives does it in the same way. The rules of procedure of both chambers regulate the organization and work of these chambers. There are no significant differences between these rules of procedure. They are similar in content. They regulate the work of various committees within each of the houses, the rights and duties of delegates and members, the methods of holding and the course of sessions, etc. Moreover, the business rules of the houses describe the structuring of individual joint management bodies, committees and commissions.

Brazil

Since the 1988 Constitution, Brazil's Supreme Federal Court has had broad powers to carry out constitutional review of legal norms and administrative acts, either in an abstract and concentrated manner or in a concrete and diffuse manner.

Canada

The Rules of the Senate (in French, Le Règlement du Sénat) are established by the Senate itself as a self-regulating parliamentary body, and are thus essentially rules of internal regulation, not statutory instruments. As was noted by the Clerk of the Senate in 2013, “The Rules of the Senate derive from constitutional and statutory sources, as well as parliamentary conventions, traditions and usages, and the practices adopted from time to time.” For further information, see Senate Procedure in Practice / La procedure du Sénat en pratique, published by the Senate, June 2015 and Companion to the Rules of the Senate of Canada / Document d’accompagnment du Règlement du Sénat du Canada, 2nd edition, November 2013.
The House of Commons is internally regulated by the Standing Orders (le Règlement) of that House.
Of course, there are important rules governing procedure that are found in the text of the Constitution Act, 1867—for exemple, section 133, which requires the enactment of bills and the printing and publication of the Acts of Parliament simultaneously in English and French—and in the Parliament of Canada Act.
As a rule, the courts respect the principle of parliamentary privilege and will not interfere with the internal workings of either house. Certain constitutional rules are, however, enforceable by the courts, including the manner-and-form requirement of bilingual enactment of legislation. Failure to respect this requirement may result in a declaration of invalidity: see Manitoba Language Rights Reference, [1985] 1 S.C.R. 721. On the interaction between parliamentary privilege and the courts, see generally, Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667; Warren J. Newman, “Parliamentary Privilege, the Canadian Constitution and the Courts”, (2008) vol. 39:3, Ottawa Law Review, pp. 573-609.

Chile

Chile's Constitutional Tribunal is a judicial body responsible for ensuring that laws in Chile comply with the Constitution.
The Constitutional Tribunal was re-established in the Chilean Constitution of 1980, during the Pinochet dictatorship. Pinochet's distrust of political power led to the majority of its seven members being appointed by the military (one by the President and 3 by the National Security Council), three others by the Supreme Court, and the Senate electing only one constitutional judge. The constitutional reform of 2005 modified the composition of the Council and the method of appointing its members: politicians now appoint seven of its ten members. Its powers have also been extended.

Czechia

The rules of procedure of the second chamber are enshrined in Act No. 107/1999 Coll. on the Rules of Procedure of the Senate which was adopted by both chambers in 1999. The Czech Constitution (Art. 40) requires that both, the Chamber of Deputies and the Senate are required to approve this law. It is, therefore, not permissible for the lower chamber to outvote the second chamber regarding the adoption of this law.
On the other hand, the Constitution does not stipulate a similar rule regarding the rules of procedure of a lower chamber (Act no. 90/1995 Coll. on the Rules of Procedure of the Chamber of Deputies). The Rules of Procedure of the Lower House of Parliament are in the form of an ordinary law, so the Chamber of Deputies can override the Senate's disapproval by an absolute majority.
Both laws (as any other law) may be submitted to the Constitutional Court for a standard constitutional review according to Art. 87 para 1 (a) of the Constitution. Besides the statutory provisions enshrined in Act No. 107/1999 Coll., the Senate may regulate, by means of resolutions, its internal relations and rules of order. However, such a regulation must be carried out within the margins stipulated by the said act (Art. 1 para 2 of the Act No. 107/1999 Coll.). The internal regulations cannot be reviewed as such by the Constitutional Court.

France

Each of the two chambers is competent, under the French Constitution, to establish its own rules of procedure. The rules of procedure of the second chamber therefore differ in many technical respects from those of the lower chamber, but there are no major differences. Both sets of rules of procedure are reviewed by the constitutional judge.

Germany

The articles concerning the Bundesrat are articles 50-53 Basic Law; it is quite a concise regulation. Similar to the Bundestag, the Bundesrat meets monthly to public plenary sessions (Article 51 subsection 3 sentence 3 Basic Law) and organizes its works on the basis of committees.

The Bundesrat elects its president every year (Art. 52 subsection 1 Basic Law); the election takes place according to a fixed order determined by the number of inhabitants of the Länder. The President of the Bundesrat is responsible for convening the Bundesrat (Art. 52 subsection 2 Basic Law). The procedures concerning the Bundesrat are determined by the Geschäftsordnung des Bundesrates (GO BR) that the Bundesrat adopts itself (Art. 52 subsection 3 sentence 2 Basic Law).

The internal regulations can be controlled by the constitutional judge.

Ireland

Article 15.10 of the Constitution allows each House of the Oireachtas to make its own rules, and these are known as Standing Orders. The chair (or presiding officer) of the Seanad is known by the Irish term “Cathaoirleach”. The Standing Orders of the Seanad are enforced by the Cathaoirleach and the Cathaoirleach is the sole judge of order. Among the many detailed rules contained in Standing Orders are the days and times on which meetings may take place, the quorum necessary to constitute a meeting, the length of time for which the doors of the Chamber must be locked during a division and the procedure for dealing with disorderly conduct by a Member.

Italy

12. The rules of procedure are established by each chamber as an expression of their autonomy (art. 64 Const). There are some differences. The Constitutional court does not have power (so far) to control the parliamentary regulations. The question is debated from time to time.

Kazakhstan

The rules of procedure are determined by the Regulations of the Mazhilis and the Senate of the Parliament of the Republic of Kazakhstan.
Difference: A law adopted by a majority vote of the total number of deputies of the Mazhilis is submitted to the Senate, where it is considered for no more than sixty days.
A law approved by a majority vote of the total number of deputies of the Senate is submitted to the President for signature within ten days. If the Senate does not approve the law as a whole or its individual articles, then the law is returned to the Mazhilis. At the same time, the Senate has the right to propose to the Mazhilis a new version of certain articles of the law.
In the event that the Senate has not adopted a relevant decision within sixty days, the law is submitted to the President for signature.
If the Majilis, by a majority vote of the total number of deputies, agrees with the wording of certain articles of the law proposed by the Senate, the law is considered adopted by the Mazhilis in a new edition and approved by the Senate and is submitted to the President for signature within ten days.
If the Majilis, by the same majority of votes, objects to the wording of certain articles of the law proposed by the Senate, and also if the Senate has not approved the law as a whole, disagreements between the Chambers are resolved through conciliation procedures.
The version of the law worked out by the conciliation commission is subject to consideration by the Mazhilis and the Senate in the manner prescribed by paragraph 4 of this article.
In cases where the Majilis has not adopted the law in the wording proposed by the conciliation commission by a majority of votes of the total number of deputies of the Chamber, the Majilis shall conduct a second vote on the law in the previously adopted wording.
If, during the repeated voting, the Mazhilis confirms the earlier decision by a two-thirds majority of the total number of deputies of the Chamber, the law is submitted to the President for signature within ten days.
If the law does not gain the indicated majority of votes of the deputies of the Majilis, the law is considered not adopted and is returned to the initiator.
The internal rules of the Parliament in Kazakhstan are not controlled by the constitutional judge.

Mexico

Each chamber is free to determine its own rules of procedure. Consequently, there is the Regulation of the Senate and the Regulation of the Chamber of Deputies.
The most relevant differences are:
i) The regulation of the Chamber of Deputies repealed the secret sessions in 2016, while the regulation of Senate still provides the possibility for a secret session.
ii) The regulation of the Chamber of Deputies provides that an “System of Evaluation of the Deputies” shall be stablishes, while the Senate regulation does not foresee it.
Are the internal regulations controlled by the constitutional judge?
In very exception cases, parliamentary acts, like the internal regulation of the chambers, can be controlled by constitutional judges.
Specifically, the Electoral Court of the Federal Judiciary has ruled about it in Jurisprudence 2/2022, titled as: “Parliamentary acts. Can be controlled by electoral judiciary when the human right to be elected, with regard of the effective exercise of office and the representative of the citizens is being violated”. [original in Spanish]
The referred Jurisprudence was generated because of cases where congresspersons sued the Political Coordination Group in both chambers, as they considered that their right to be elected, with regard of the effective exercise of office, was being violated, as long as they could not be members of the Permanent Commission (this body is analyzed in question 15).
The High Chamber of the Electoral Court ruled that the right to be voted includes the effective exercise of the office by which the person was elected to, therefore, it is part of electoral law. Consequently, the activities of the Permanent Commission, as the body that embodies the Legislative Branch when the chambers are in recess periods, must include the participation of the different parliamentary groups, in order to guarantee the right to exercise correctly the office by which they were elected, respecting the principles of political plurality and of representativity.

Morocco

Ceux sont les élus de la deuxième chambre qui élaborent eux-mêmes leur règlement intérieur qui doit être conforme à la loi organique les régissant et à la constitution. Les règlements sont très similaires. Les règlements intérieurs des deux chambres sont systématiquement contrôlés par la cour constitutionnelle et il y a à ce propos, une jurisprudence abondante et pertinente en matière de protection des principes d’égalité et de liberté des élus.

The Netherlands

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

Poland

Each chamber has exclusive jurisdiction to adopt its own rules by resolution. Resolutions of the chambers of parliament are not subject to the jurisdiction of the Constitutional Tribunal.

Romania

The rules of procedure of each chamber are established by their own Regulation (Regulament); the Constitutional Court may adjudicate on the constitutionality of these Regulations (see article 64 and article 146 of the Constitution).

Slovenia

The rules of procedure of the National Council of the Republic of Slovenia are established by the National Council itself, in accordance with Article 101 of the Constitution of the Republic of Slovenia. The Constitution states that the National Council shall adopt its rules of procedure by a majority of all members.

the rules of procedure of the National Council of the Republic of Slovenia are different from the rules of procedure of the National Assembly of the Republic of Slovenia, because the National Council is a second chamber of the Slovenian parliament, and its rules of procedure are established separately from those of the National Assembly, which is the first chamber of the parliament. One of the main differences between the two sets of rules is that the National Council's rules of procedure provide for a different decision-making process than that of the National Assembly. The National Council has a smaller number of members than the National Assembly, and its members are elected by different interest groups, such as local communities, trades, and professions. As a result, the National Council's rules of procedure reflect the unique composition and role of the chamber in the legislative process.

While the rules of procedure of the National Council and the National Assembly share some similarities, such as provisions for quorum and voting procedures, there are also significant differences between the two sets of rules, reflecting the distinct roles and functions of each chamber in the Slovenian parliament.

The rules of procedure of the National Council are controlled by the Constitutional court of Slovenia if there is a dispute over the application of the rules of procedure of the National Council. There is no directly control or enforce the National Council's rules of procedure.

Spain

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

Switzerland

The Council of States is governed by the Federal Act on the Federal Assembly and the respective secondary legislation (Ordinance of the Federal Assembly to the Parliament Act and on the Parliamentary Administration) which equally applies to the National Council. Additionally, each chamber has its own Standing Orders (Standing Orders of the Council of States and Standing Orders of the National Council). There are slight differences between the Standing Orders, but these are of clearly subordinate nature (e.g. only the Council of State has introduced a dress code).

Tunisia

As amended very recently in 2022, neither the Constitution nor any laws have yet specified the mandate and powers of the second chamber.

United Kingdom

Each chamber is responsible for the passing of Standing Orders which regulate their proceedings. There is no role for a constitutional judge in these processes.

United States of America

Under Article 1, Section 5 of the Constitution, each of the chambers sets its own rules of its proceedings. The Constitution also specifies certain other procedural rules including what constitutes a quorum for each chamber, but largely, the House and Senate rules of procedure are set independently, and by the members. Pursuant to that authority, the House of Representatives adopts its rules anew each Congress, ordinarily on the opening day of the first session. The Senate considers itself a continuing body and operates under continuous standing rules that it amends from time to time.

The main difference between the House and Senate rules arises as a function of the number of members comprising each chamber. In the House, a structured legislative process and strict adherence to the body’s rules and precedents have resulted from the need to manage how 435 Representatives make decisions. By contrast, the Senate’s smaller membership has brought about a less formal policymaking process and a more flexible approach to the chamber’s standing rules.