SYSTEMS OF PARLIAMENTARY COMMITTEES AND FORMS OF GOVERNMENT.
COMPARING THE US CONGRESS, THE BRITISH, THE FRENCH, THE ITALIAN AND THE EUROPEAN
PARLIAMENTS∗∗
1. Introduction – 2. Methodology and case selection – 3. Form of government: A highly disputed concept – 4. The
notion of parliamentary committee systems and its origins – 5. The influence of the parliamentary committees’ systems
on forms of government - 5.1. Parliamentary variables and strength of committees. Four types of committees’ systems –
5.1.1. “Weak” committee system – 5.1.2. “Partially influential” committee system – 5.1.3. “Predominant committee
system – 5.1.4. “Strong” committee system – 5.2. Extra-parliamentary variables and role of committees. A hypothesis
of categorization of forms of government – 5.2.1. Form of government based on “non influential” committee systems 5.2.2. Form of government based on “majoritarian” committee systems - 5.2.3. Form of government based on
“consensual” committee systems - 5.2.4. Form of government based on “decisive” committee systems - 6. Conclusions
1. Introduction
Every democratic legal order has a legislature organized in committees1.
In this respect, it was significantly maintained that, while in the Nineteenth century legislatures
were mainly structured as “Parliament in Assembly”, in the Twentieth century they can be
considered as “Parliaments in committees”2. Committees have become the crucial player of the
“renewal” of legislatures within the constitutional legal orders built up after WWII and in most
cases they have acted as body ‘attached’ to Executives3: Almost every day Ministers and
departmental secretaries have direct or indirect contacts with them.
It is not coincidence that Michel Debré, one of the framers of the French Fifth Republic,
stigmatized the committees system of the Fourth Republic, since there were too many and too
powerful committees to allow the Executive to rule4. On the other hand, Woodrow Wilson, praising
the British Parliament, affirmed that, if the U.S. Congress was definitely “governed by committees”,
on the contrary in the United Kingdom the government was guaranteed by a Cabinet of Ministers
responsible to the Parliament as a whole5. Indeed, for a long time, at least until the end of the
Seventies, the will of the British Executives to control parliamentary activities undermined the
effectiveness of parliamentary committees, who were kept deliberately powerless.
According to the distinction accomplished by Norton, between “chamber-oriented” and
“committee-oriented” legislatures, the Westminster Parliament felt undoubtedly within the first
category6. Before the 1979 reform of the Standing Orders the House was at the heart of
parliamentary work, thus the Executive found relatively easy to supervise this activity instead of
being involved in complex negotiations with several committees.
However, the situation has then partially changed. Both in the United Kingdom, after the setting
up in 1979 of departmental select committees, and in former dominions, like Canada (where a
∗∗
First draft – please do not cite.
Interparliamentary Union, Tools for parliamentary oversight. A comparative study of 88 national parliaments, edited
by H. Yamamoto, Geneve, 2008, p. 15
2
This distinction was proposed by Elia L., Le Commissioni parlamentari italiane nel procedimento legislativo, in
Archivio giuridico “Filippo Serafini”, 1961, p. 42 s. See also See Lees J.D., Shaw M. (eds.) Committees in
Legislatures. A Comparative Analysis, Durham, North Carolina, 1979.
3
See Manzella A., Il Parlamento, 3ed., Bologna, 2003, p. 127.
4
According to Michel Debré, Trois caractéristiques du système parlementaire français, in Rev. Fr. de Sc. Pol., 1955, p.
46 the parliamentary committees of the Fourth Republic were so strong to be incompatible with the parliamentary form
of government. Subsequently, during the Fifth Republic they became the victims of the process of rationalization
involving the French form of government. On this aspect, see Türk P., Les commissions parlementaires permanents et
le renouveau du Parlement sous la Ve République, Paris, 2005, p. 29.
5
See Wilson W. (1885), Congressional Government. A study in American politics, New Brunswick, 2009, p. 110.
Indeed, Wilson was used to say that Congressional government was “committee government”.
6
See Norton P., Nascent Institutionalisation: Committees in the British Parliament, in L. D. Longley, R. H. Davidson
(eds.) The New Roles of Parliamentary Committees, London, 1998, p. 143 s.
1
1
system of standing committees already existed at that time), Australia and New Zealand, Members
of Parliament (MPs) have started to spend much more time within committees than they did in the
past.
Therefore it has been expressly acknowledged that Parliaments, particularly through their
committees, are deemed capable to define the general political directions and priorities of national
policies7. At least potentially, the relationship between legislatures and executives is so close within
committees that the rules presiding over their functioning can strongly condition the performance
of a certain form of government, especially where committees are empowered with veto or
(autonomous) decision-making powers. When this happens the Executive is forced to negotiate with
these parliamentary bodies the measures to be adopted8. Of course this observation is valid for
standing committees, provided directly in the Constitution, in the standing orders, in the rules of
procedure or by statute and which are automatically reconstituted every parliamentary term; and
specialized on different subject-matters, thus having jurisdiction on a limited number of public
policies (even though the specialized and standing committees altogether cover the entire spectrum
of public policies) basically corresponding to the portfolios of the Ministries9.
However, a well-settled parliamentary committee system, with regard to the division of
competences and their jurisdiction, to their coordination and their empowerment vis-à-vis other
parliamentary bodies and the Executive, does not have only an internal relevance within the
Legislature, but it also has an impact on the concrete arrangement of constitutional powers.
The choice of legislatures to create a system of standing committees in the Twentieth century
depends on many reasons: for instance, the engagement of the State, and consequently of the
Executive, in exercising new public functions and in providing services; the need for controlling
more carefully the government and public expenditure; the growth of the statutes approved every
year compared to the narrow legislative production in the Nineteenth century; the raising of a more
complex and technical legislation. All these factors required also to Parliaments more rational
arrangements, facing their workload according to the policies and thus the committee affected.
Since then other phenomena have appeared throughout the past century, such as the transfer of
significant normative powers from Legislatures to Executives, the crisis of the parliamentary
statutes and of the long standing representative function of political parties and legislatures,
globalization and the deepening of process of regional integration, mediatisation and
personalization of politics. Due to this, even the balance between legislative and oversight function
7
Volpi M., Libertà e autorità. La classificazione delle forme di Stato e delle forme di governo, Torino, 2010, p. 109.
“General political directions and priorities” is an expression used in the English version of Art. 15 TEU with reference
to the European Council. This is an approximation to the Italian notion of “indirizzo politico” or the German notion of
“Richtlinien der Politik” that do not exist properly neither in French nor in English. The official English translation of
the German Basic Law uses “the general guidelines of policy” in place of “Richtlinien der Politik” (Art. 65 GG). The
official translation of the Italian Constitution for “indirizzo politico (e amministrativo)” (Art. 95 Const.), instead, as
“general policy” seems not completely satisfactory. On the problem of translation in comparative law, see Sacco R.,
Lingua e diritto, in Traduzione e diritto – Ars Interpretandi, Annuario di ermeneutica giuridica, Padova, Cedam, 2000,
p. 117 s.
8
Mortati C., Lezioni sulle forme di governo, Padova, 1973, p. 304 affirmed that the pervasive oversight power exercised
by the U.S. congressional committees on the Executive, in principle, does not seem to be consistent with the separation
of powers prescribed by the Constitution. In the U.S. system committees contribute to approach the positions of the two
branches of government: while the Executive is forbidden to attend the activity of the House (except for the opening
session, when the State of the Union is presented), nonetheless it is constantly present in committees, particularly
through hearings. On the often conflicting relationship between Executive and congressional committees, see
extensively McKay W., Johnson C.W., Parliament and Congress: Representation and Scrutiny in the Twenty-First
Century, Oxford-New York, OUP, 2010, p. 497 s.
9
The establishment of committees, due to the principle of the rational organization of work they pursue, does not
characterised legislatures only. The more numerous, interdisciplinary and technical issues are, the more institutions get
organized in several committees (the Executive, the judiciary the public administration), usually making their activity
more functional and efficient, but also less transparent. See Cotta M., Il sotto-sistema governo-parlamento, in Rivista
Italiana di Scienza Politica, 1987, p. 241-283.
2
of Legislatures has been concerned. Although the legislative function - notwithstanding its
weakening – remains a distinctive feature of Parliaments still today, it cannot be denied that the
reinforcement of the oversight function is a well-established trend10.
Because of these transformations at the beginning of the new century doubts can arise about the
persistent validity of the formula of “Parliaments in committees” coined more than fifty years ago.
On this basis the following research questions will be addressed: Whether committees are still
decisive political organizational units of legislatures and to what extent they are able to shape a
certain form of government (the concept will be defined in para. 3).
In the paper it is argued that in order to assess the weight of parliamentary committees both,
within Legislatures and in relation to the Executive, it is necessary to rely on the notion of “system
of standing committees”, looking at relationships amongst those committees in terms of
overlapping, differentiation, conflicts and coordination and their autonomy regarding other
parliamentary bodies (Speaker, Conference of the President of political groups etc...) and the
Executive (see para. 4).
After having explained the methodology used (para. 2), how the cases compared have been
selected (para. 2), what is meant by “form of government” (para. 3) and by “parliamentary
committee system” (para. 4), the focus turns to the influence of parliamentary committee systems
on the forms of government, applying a two-fold approach.
Firstly the strength of committees within Legislatures is considered, taking into account on the
one hand, the level of specialisation of the committees of the system by subject-matter and function,
and, on the other hand, the level of coordination among standing committees and their autonomy
towards other parliamentary bodies. The result will be a first categorization of parliamentary
committee systems: “weak”, “partially influent”, “strong”, “predominant” (para 5.1.).
On this first taxonomy another is built (para 5.2.), aiming at assessing the influence of
parliamentary standing committees on the determination of the general political directions (indirizzo
politico), thus pointing out the existence of different forms of government according to the
committee system. The spectrum of the analysis is broadened to include the features of the party
systems, the number and mostly the polarization of cleavages within constitutional legal orders, the
degree of the separation of powers and the powers of committees towards the Executives, with
regard to the legislative and the oversight functions. In this respect forms of government can be
distinguished based on a: “non-influential” committee system; “majoritarian” committee system;
“consensual” committee system; and a “decisive” committee system.
2. Methodology and case selection
The analysis follows a legal approach, thus focusing on constitutional provisions and case-law,
statutes, Rules of procedure and Standing Orders, conventions and parliamentary precedents, where
published and well-known. Indeed, the functioning of legislatures often shows a high degree of
uncertainty compared to the codified rules: for instance some legislatures provide for the derogation
to their written rules by unanimous consent of their members (this is the case of unanimous consent
agreements in the U.S. Senate and the so-called nemine contradicente convention in the two Houses
of the Italian Parliament) or following the input of a parliamentary body (as happens in the U.S.
House of Representatives through its Committee on Rules). Moreover, due to the topic, special
attention is given also to the study of political scientists on systems of government and
legislatures11.
10
See Costa O., Kerrouche E., Magnette P., Le temps du parlementerisme désenchanté, in Costa O., Kerrouche E.,
Magnette P. (eds.), Vers un renouveau du parlementerisme en Europe?, Bruxelles, ULB, 2004, p. 17, who underline
also the European trend towards the “Americanization” of the way the parliamentary oversight function is carried out.
11
“Legislatures” is the term commonly used to refer both to Parliaments, as legislatures are called within parliamentary
systems, and to Congresses, within presidential systems.
3
The analysis has been accomplished using the comparative law method and particularly the
“prototypical case logic” for case selection, according to Ran Hirschl’s theory12. This means that the
legal orders selected, France, Italy, the United Kingdom, the United States and the European
Union, represent the points of reference for most research on legislatures and forms of governments,
having been considered as models13, depending on the features of their parliamentary committee
system or on certain characteristics of the entire constitutional order.
Thus it has been decided to include of the Italian and the U.S. legal orders, whose parliamentary
committee systems have been deemed as “powerful”14, even though inserted into different forms of
government. On the contrary, the British and the French Parliaments have been covered for opposite
reasons. As said above, the British Parliament is centered on the House (the plenary) and in spite of
the setting up in 1979 of the departmental select committees, mirroring the composition of the
Executive, they have been substantially entitled to carry out only the oversight function. Instead,
the legislative function has remained assigned to public bill committees (also called standing
committees or special committees), which are established on a temporary basis bill by bill, or to the
Committee of the Whole, the House sitting as a committee, where all MPs can participate in
voluntarily.
Compared to the British Parliament, during the Third and the Fourth Republics the French
Parliament was provided with a strong system of parliamentary committees, which was even
accused to be one of the causes of governmental instability. However, the Constitution of the Fifth
Republic (at least until the constitutional reform in 2008) has decisively penalized parliamentary
standing committees, constitutionally limited at six (now at eight), too big in their size (on average
more than 70 members) and thus with a very low level of specialization15. Adding to this their
marginalization in the carrying out of the oversight function and the narrow room left to them along
the legislative process, it can be seen how weak the French committee system has been since 1958,
as well as the British one, though for different reasons.
The choice to consider also the European Parliament, however, requires further clarifications,
most of all because its inclusion in study of comparative public law has not been very frequent so
far16. In spite of this tendency, there are several elements that justify the inclusion of the European
Union (EU) – being its institutional architecture the result of the combination between European
12
See Hirschl R., The Question of Case Selection in Comparative Constitutional Law, in The American Journal of
Comparative Law, vol. LIII, 2005, p. 125-155. The Author maintains that the “prototypical case logic” for case
selection coexists with other two methods: “The most similar case logic”, based on the selection of similar cases,
aiming at highlighting their differences; “The most different case logic” in order to isolate the “weight” of the limited
elements they have in common. In this regard, Also Moreno Callado J., El Poder legislativo en el Derecho
Constitucional Comparado, in AA.VV., Derecho Constitucional Comparado, Ciudad de Mexico, Unidad de
Promotores Voluntarios, 1986, p. 20 s. insists on the importance of the analysis based on prototypes.
13
This is particularly true for the U.S. Congress, the British, the French and the European Parliament (the latter for its
influence on parliamentary bodies of other regional organizations), far less than for the Italian Parliament, with the
exception of the “legislative committees” (Art. 72, para. 3 It. Const.) imported in Spain in 1978 and then in few other
Latin-American legislatures.
14
In Italy this kind to evaluation is probably valid until the end of the Eighties. Since the Nineties the huge
transformation of the political system, in spite of the invariability of the Constitution, has probably undermined the
position of parliamentary standing committees.
15
To be more precise, the limited number of standing committees implies that each one of them has to deal with many
different policies.
16
Nowadays there are many study that compare the European Court of Justice with Supreme or Constitutional Courts
(see, for instance, Stone-Sweet A., Governing with Judges: Constitutional Politics in Europe, Oxford-New York, OUP,
2000 and De S. -O- L’e Lasser M., Judicial Deliberations: A Comparative Analysis of Judicial Transparency and
Legitimacy, Oxford-New York2009) and system of protection of fundamental rights in the European Union with the
national ones (see Von Bogdandy A., The European Union as a Human rights organizations, in Common Market Law
Review, 2000, p. 1307 s. and Young A. L., The Charter, Constitutions and Human Rights: Is this the Beginning or the
End for Human Rights Protections by Community Law?, in European Public Law, 2005, p. 219 s.).
4
and national institutions17 - and especially the European Parliament within the research on the forms
of government. As it will be explained in para. 3, the singularity of the EU institutional framework
as form of government based on “confusion of powers” makes it a prototype (also) in this regard.
It has been noticed that comparative public law cannot be applied anymore as if it were at its
foundational moment – at the beginning of the Twentieth century -, when the western world was
dominated by Nation-States18, when transnational law and processes of supranational integration
did not affect significantly legal systems. For decades comparative public law remained blind to the
changes of the legal reality and to the rise of transnational regimes (international and
supranational)19. However, in the last few years the attitude of comparative lawyers towards the EU
has shift: the new edition of many handbooks of comparative constitutional law20, even those
published in the U.S. – a legal system that has not traditionally shown a great openness to foreign21
law and that is placed outside the EU – take the EU into consideration beside national legal orders.
Within the EU the European Parliament (EP), since its origins, has seemed to be the result of the
process of synthesis of the parliamentary traditions of the Member States (even though particularly
after its first direct elections in 1979 it looked intensively to the model of the U.S. Congress too22).
The EP was able to interpret and combine these traditions in an original way, thus adapting them to
a brand-new institutional model and creating its own institutional “style”23.
3. Form of government: A highly disputed concept
The disputable nature of the concept “form of government” is at least two-fold. The first reason
why it is considered as controversial derives from its limited geographical use. Indeed the notion is
basically unknown in the Anglo-Saxon context and particularly outside Europe24, at the advantage
of “government” or “system of government”25. However, for the purposes of the paper it is
preferable to apply the concept “form of government” because it seems to show a narrower focus
(than government or system of government), describing in a certain legal order the relationships
among the constitutional bodies entitled to define the “general political directions and priorities”26 17
As it was effectively observed by Pernice I., Multilevel Constitutionalism in the European Union, in European Law
Review, vol. 27, n. 5, 2002, p. 511-529 (p. 514), the European Constitution is a “Multi-layered Constitution”, formed by
two constitutional “layers” (the European and the national ones), “interdependent, interwoven, and reciprocally
influential”.
After all, the democratic nature of the European Union (even though it has been strongly contested even recently: see,
for instance, the decision of the German Constitutional Court issued on 30 June 2009, BverfG, 2BvE 2/08) is found on
the interdependence between European and national levels of government, on the strengthening of the European
Parliament’s powers and on the control accomplished by national parliaments towards their Executives when they act as
component of European institutions (essentially the Council and the European Council): see Weiler J.H.H., Haltern U.
R., Mayer F., European Democracy and its Critique, in West European Politics, vol. 18, no. 3, 1995, p. 4-39.
18
See Reimann M., Beyond National Systems: A Comparative Law for the International Age, in Tulane Law Review,
vol. 75, 2000-2001, p. 1105 s. and Pizzorusso A., Il ruolo della comparazione giuridica nell’epoca contemporanea, in
Comparazione giuridica e sistema delle fonti del diritto, Torino, Giappichelli, 2005, p. 28
19
See Jackson V., Constitutional Engagement in a Transnational Era, Oxford-New York, OUP, 2009, p. 5 s.
20
See, for instance, Ponthoreau M.-C., Droits constitutionnels comparés, Paris, Economica, 2010 and Dorsen N. et al.,
Comparative constitutionalism: cases and materials, 2nd ed.., St. Paul, Thomson/West, 2010.
21
Against the thesis of the american exceptionalism, see Jackson V.C., Tushnet M., Introduction to Defining the Field
of Comparative Constitutional Law, Westport, Preager, 2002, p. iii s.
22
See Kreppel A., The Environmental Determinants of Legislative Structure: A Comparison of the U.S. House of
Representatives and the European Parliament, in T.J. Power, N.C. Rae (eds.) Exporting Congress? The Influence of the
U.S. Congress on World Legislatures, Pittsburgh, Univ. of Pittsburgh Press, 2006, p. 137 s.
23
See Costa O., Le Parlement européen, assemblée délibérante, Bruxelles, 2001, p. 55 s.
24
Lijphart A. in his book Patterns of Democracy, New Haven-London, 1999, used as subtitle the expression
“Government Forms and Performance in Thirty-Six Countries”.
25
See Sartori G., Comparative Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes, New
York, New York University Press, 1994.
26
See Volpi M., Libertà e autorità. La classificazione delle forme di Stato e delle forme di governo, Torino, 2010, p. 4.
5
applying the wording of Art. 15 TEU - or the “general guidelines of policy” – taking into account
Art. 65 GG.
However, as mentioned above, even the notion of “general political directions and priorities”27
(“indirizzo politico”) is not universally accepted, but it appears as crucial to our purpose, aiming at
assessing the impact of different committee systems. Therefore, due to its ambiguous nature and in
order to avoid misunderstandings, it is convenient to anchor this notion to the legislative and
working programme set down by the Executive28: the “general political directions and priorities”
are those fixed in this programme on which voters have directly or indirectly agreed, depending on
the procedure for the selection and appointment of the Executive.
In the United States, however, in case of divided government, when one or both Houses of
Congress have a different political orientation compared to the President, it is likely that the
political majority in the Congress will promote its own programme (like in the Nineties with Newt
Gingrich and the Republican Contract with America) in opposition to the President. This is one of
the physiological outcomes of the mid-term elections in a system based on separation of powers and
on double direct legitimation of the legislative and the executive branches.
Subsequently, within this general framework that distinguishes the forms of government
according to the unitary or different systems of appointment between legislatures and executives
and on the requirement or the lacking of the confidence relationship, some scholars have tried to
introduce additional variables29. Thus the classical dichotomy between parliamentary and
presidential forms of government, then enriched by the semi-presidential one30 – based both on the
confidence relationship and the dual direct legitimation of the President and the Parliament, where
two constitutional powers, the legislative and the executive ones are distributed amongst three
constitutional bodies – has been further specified.
If Parliaments and Executives form part of any research on the forms of government, some have
suggested to include the Head of State also in parliamentary systems (mainly where he has some
discretion to dissolve the Parliament)31, the electoral body32 and the electoral systems33, political
parties34, Oppositions35 and the Speakers36 as well. In this respect, it is proposed to add another
27
Lato sensu the notion is referred to the European Council in Art. 15 TEU, to the Federal Chancellor in Art. 65 GG
and to the President of the Council of Minister in Art. 95 of the Italian Constitution, thus to the apex of the Executive
branch in the three legal systems (although the European Council is not a collegiate body)
28
See Martines T., voce Indirizzo politico, in Enc. del diritto, vol. XXI, Milano, Giuffrè, 1971, p. 134-171; Predieri A.,
Mediazione e indirizzo politico nel Parlamento italiano, in Riv. It. Sc. Pol., n. 3, 1975, p. 407-441. In the United States,
however, in case of divided government, when one or both Houses of Congress have a different political orientation
compared to the President, it is likely that the political majority in the Congress will promote its own programme (like
in the Nineties with Newt Gingrich and the Republican Contract with America) in opposition to the President. This is
one
29
See Linz J.J., Presidential or Parliamentary Democracy: Does It Make a Difference?, in J.J. Linz., A. Valenzuela
(eds.) The Failure of Presidential Democracies. Comparative Perspectives, Baltimore and London, 1994, p. 3 s.
30
See Elgie R., What is semi-presidentialism and where it is found?, in R. Elgie, S. Moestrup (eds.) Semipresidentialism outside Europe, London, New York, 1997, p. 1-13.
31
See Schmitt C. (1928), Constitutional Theory, transl. by J. Seitzer, Durham and London, 2008; Costanzo P., Lo
scioglimento delle assemblee parlamentari, Vol. I and II, Milano, 1984 and Lavaux P., La dissolution des assemblées
parlamentaires, Paris, 1983.
32
Duverger M., La République des citoyens, Paris, 1992, p. 41 s.
33
See Lanchester F., Sistemi elettorali e forma di governo, Bologna, 1981, p. 274 and Rae D., The Political
Consequences of Electoral Laws, New Haven-London, 1971, p. 179 s.
34
See Duverger M., Droit constitutionnel and institutions politiques, 2nd ed., Paris, 1956 and Elia L., Governo (forme
di), in Enciclopedia del diritto, vol. XIX, Milano, 1970, p. 634-675, who based his analysis on parliamentary forms of
government on the categorization of political parties defined by Sartori G. in the Sixties and then systematized in
Parties and Party Systems: A Framework for Analysis, New York, 1976. Lijphart A., Patterns of Democracy
Government Forms and Performance in Thirty-Six Countries, New Haven-London, 1999 takes into account both
political parties and electoral systems.
35
See De Vergottini G., Lo “Shadow Cabinet”. Saggio comparativo sul rilievo costituzionale dell’opposizione nel
regime parlamentare britannico, Milano, 1973 and Helms L. (ed.), Parliamentary Oppositions in Old and New
6
variable affecting the functioning of forms of government, the parliamentary committee system (as
defined further on, para. 4).
Undoubtedly the notion of “form of government” has to be framed within a wider context, that of
the form of State under a double perspective: 1) the relationship between people, institutions and
sovereignty, which means that only those legal systems reaching a certain degree of separation of
powers and a certain level of protection of fundamental rights37, can be deemed to have a “form of
government”38; 2) The relationship between territory and sovereignty, which differentiates in very
broad terms unitary States from compound States.
From both perspectives, the case of the European Union seems particularly significant in the
framework of the relationship between form of government and form of State. In spite of the
position taken by the German Constitutional Court in 200939 and by some scholars40, the European
Union cannot be considered simply as an association of States (Staatenverbund), as many other
regional organizations, but rather it should be inserted within the category of the unions of States,
being structurally closer - due to its organization and functioning - to the Helvetic Confederation
and the United States41.
The peculiarities of the EU can be found, in addition to its historical origins and to finalistic
reasons – due to the coexistence of economic and political objectives -, in its forms of government,
which is the result of a mix between inter-governmental and supranational elements. Indeed, the EU
legal order was set up and then developed on the basis of the common constitutional traditions of
the Member States (Art. 6, para. 3 TEU) and of their national constitutional identities (Art. 4, para.
2 TEU), from which the EU draws its inspiration as for institutional solutions. Conversely, the EU
affects the institutional balance within Member States, favouring the predominance of the
Executives so far and defining the timing of most legislative production42.
Hence, neglecting the European Union and its Parliament in this comparative analysis amongst
some of its Member States – France, Italy and the United Kingdom – and a union of states, such as
the United States, would provide only an incomplete picture. Aiming at counteracting the exclusion
of the EU from most comparisons, the notion of “compound democracies” was invented
deliberately, avoiding any reference to States43. Indeed this notion is referred to all compound
Democracies (firstly published as a special issue of the Journal of legislative studies), London, 2008. Recently Fontana
D., Government in Opposition, in Yale Law Journal, vol. 119, 2009, p. 548-622 has introduced a new understanding of
“Opposition” to be applied particularly to an emerging form of separation of powers that is the “government in
opposition” model. There the distinction between “winners’ powers” and “losers’ powers” is less clear than in the usual
model of separation of powers’ system because the Opposition is somewhat included within the government.
36
See Torre A., Il magistrato d’Assemblea, Torino, 2000.
37
The definition can be found in Art. 16 of the Declaration of the Rights of Man and of Citizen aiming at describing
what a Constitutional State is.
38
Indeed the question of the “forms of government” can hadly be posed within totalitarian and authoritarian regimes,
where no free elections take place, where constitutional guarantees lack, where the distribution of the legislative and
the executive powers remains unclear and only one subject is substantially entitled to fix the general political directions
and priorities of the State.
39
We refer to the decision issued on 30 June 2009, German Constitutional Court issued on 30 June 2009, BverfG, 2BvE
2/08 and strongly criticized also by German scholars, like Tomuschat C., The Ruling of the German Constitutional
Court on the Treaty of Lisbon, in German Law Journal, vol. 10, no. 8, 2009, p. 261, where he affirmed that “In our age
of globalization, it seems fairly odd to contend that genuine democracy can exist only within the framework on the
Nation-State”.
40
See Slaughter A.-M., A New World Order, Princeton, 2004, p. 264, who considers the European Union only
comparable to international organizations.
41
See Fabbrini S., Is the European Union a Model? Political and Institutional Intricacies of Regionalism, paper
presented at the IPSA-ECPR Joint Conference, São Paulo, Brazil, 16-19 February 2011,
http://www.saopaulo2011.ipsa.org/paper/eu-model-political-and-institutional-intricacies-regionalism.
42
See Raunio T., Wiberg M., How to Measure the Europeanisation of a National Legislature?, in Scandinavian
Political Studies, vol. 33, n. 1, 2010, p. 74 s.
43
The notion was coined by Fabbrini S., Compound Democracies: Why the United States and Europe Are Becoming
Similar, 2nd ed., Oxford, New York, 2010 (the first edition dated back to 2007).
7
entities formed, at least, by two constitutional levels, each of them containing many others
institutional levels of government inside.
The form of government of the EU, especially after the entry into force of the Treaty of Lisbon,
adds up the features of different forms of governments at the same time:
a) The parliamentary one44, because the designation of the President of the Commission has to
take into account the results of the European elections (Art. 17, para. 7 TEU) and he is elected by
the European Parliaments (EP) on proposal of the European Council (Art. 14 TEU). Moreover the
European Commission is collectively responsible to the EP and can be forced to resign if a motion
of censure is approved (Art. 17, para. 8 TEU).
b) The features of the semi-presidential form of government in the EU can be found in the shared
exercise of the executive power, between the European Council and the Commission, and possibly
also the Council45.
c) Finally the trend towards the presidentialization of the EU is shown by the new position of the
President of the European Council (Art. 15, para. 6 TEU), who, according to some scholars, could
be unified in the future with that of the President of the Commission and then reaching the stage of
the direct elections of the President of the Union46.
However, the principle of separation of powers seemed applied stricter at the beginning of the
European integration process (though not in an orthodox way) than today. At that time the Council
of Minister was the legislative authority of the Community, the parliamentary Assembly was simply
an advisory body, the European Commission was the executive branch and the European Court of
Justice represented the judiciary. Afterwards, the increasing complexity of the EU institutional
architecture has modified this equilibrium. The European Council was set up, thus presiding over
the entire functioning of the EU and dictating the general political directions for the EU
development. The European Parliament has become a full co-legislator with the Council and has
been empowered also with regard the oversight function. The Council has remained a co-legislator,
but most of all in the past exercised also the executive powers on some measures adopted by the
Commission. The Commission has kept its executive power, but becoming more bureaucratic than
in the past and carrying out also significant tasks in the field of the legislative function (namely the
power to initiate legislation and to adopt normative measures)47. This patchwork of functions,
mainly between the Commission and the Council, has provided the EU with an inedited form of
government, which can be seen as based on the “confusion of powers”.
Within this original architecture the European Parliament is the democratic body of the EU – at
least the only to be directly elected by citizens – and probably the most empowered institution
throughout the years. Procedures and practice from national parliaments have shaped the EP rules:
from the provisions on political groups drawn from the French Parliament, to that on the question
time, which derives the British Parliament, to the norms on the Conciliation Committee, inspired by
the German legislative process.
The 20 standing committees of the EP are so influent to have been described as its “legislative
backbones”48. Indeed, MEPs spend most of their time in committees, which are the EP
44
See Magnette P., Le régime politique de l’Union européenne, Paris, 2003.
Bonvicini G., Matarazzo R., Tosato G. L., I partiti politici europei e la candidatura del presidente della
Commissione, in Il diritto dell’Unione europea, 2009, p. 179 s.
46
See Calabresi S. G., Bady K., Is the Separation of Powers Exportable?, in Harvard Journal of Law & Public Policy,
vol. 33, n. 1, 2010, p. 5 s. and Fabbrini S., Compound Democracies: Why the United States and Europe Are Becoming
Similar, Oxford, New York, 2010. However, It is well-known that prominent scholars, such as Ackerman B., The New
Separation of Powers, in Harvard Law Review, vol. 113, n. 3, p. 632-725, argue against the “export” of the model based
on separation of powers to Europe.
47
Many scholars think that also the ECJ has changed its nature since 1957, becoming a sort of policy-maker. See, for
instance, Stone Sweet A., The Judicial Construction of Europe, Oxford-New York, 2004, p. 1-43.
48
See Westlake M., A Modern Guide to the European Parliament, London, p. 191. Moreover Strøm K., Parliamentary
Committees in European Democracies, in Journal of Legislative Studies, vol. 4, 1998, p. 23 considers the EP
committees as “privileged groups” within the Parliament.
45
8
representatives through the Chairman, the Rapporteur and the Shadow-Rapporteur in any interinstitutional negotiation involving the Parliament49. For this reason, along with what was said on the
ambiguous position of the Council (not being only part of the legislative branch), it has been
decided to focus the analysis for the EU on the European Parliament only.
Only a partially similar reasoning led us to deal only with the National Assembly for the French
Parliament and the House of Commons for the British Parliament. In both cases these are the
Chambers involved in the confidence relationship with the Executive, whereas the French Senate
and the House of Lords, though important in the overall institutional balance are not legally entitled
to affect the Executive’s term of office.
4. The notion of parliamentary committee system and its origins
In this paper parliamentary committees are assumed to be a species within the broader genus of
committees, with which they can show some common features, like the limited level of
transparency – although this is not the case of U.S. Congress and EP committees - and the natural
attitude to foster negotiations and the achievement of compromise50. For instance, compared to the
House, where political conflicts can arise harshly, committees are usually considered as consensusbuilding arenas.
In particular, parliamentary committees can be differentiate from other types of committees for
two main factors. 1) They are political committees composed of representatives directly elected by
people; 2) and are formed proportionally to the seats obtained by political groups in the House.
However, the analysis will be limited only to those parliamentary committees deemed to be
strictly related to the Executive in the accomplishment of their functions: Standing committees51.
Standing committees are characterised by being:
a) Regularly re-established at the beginning of each parliamentary term or session.
b) Very often provided by the Rules of procedure or Standing orders, by legislation and by the
Constitution.
c) Specialised on specific subject-matters mirroring more o less the competences of Executive’s
departments.
Because of their stable existence and renewal and their systematic contacts with the relevant
Ministries they are particularly significant for studying the forms of government. By contrast,
special committees and the Committee of the Whole are excluded from the analysis, because they
do not entertain continuing relationship with the Executive; Inquiry committees acting with the
powers and the limitations of the judiciary, in those legal systems where this function is assigned to
temporary and ad hoc unicameral or bicameral committees (in the French National Assembly, the
EP and the Italian Parliament); bicameral committees, because they are the exception within the
selected legislatures and they usually do not participate in the legislative process (or only by
adopting non binding opinions).
49
See Corbett R., Jacobs F., Shackleton M., The European Parliament, 8th ed. London, 2011, p. 136 s.
See Sartori G. Tecniche decisionali e sistema dei comitati, in Rivista italiana di scienza politica, 1974, p. 5 s. and
then ID., The theory of democracy revisited, Chatham, N.J., 1987, p. 229.
51
The term “standing committee” can raise doubts, due to the fact that it has different meanings even in English,
depending on legal order considered, whether the United Kingdom or the United States. While after 1979 in the United
Kingdom select committees are actually standing committees, because they are permanent, re-established at the
beginning of each term and specialised mainly according to the departments, within the U.S. Congress select
committees are special committees set up on ad hoc basis. But the misunderstanding can go further. In fact in the United
States the term “standing committees” is referred to those specialized committees set up every Congress and entitled to
exercise the legislative and the oversight functions. On the contrary in the British House of Commons until recently,
when the name was changed in public bill committees, “standing committees” were, in spite of the name, temporary
committees set up for the consideration of a bill. The only possible explanation of this “misnomer” can be found in the
fact that for speaking in one of the standing committees is required to stand, as happens in the House (see Blackburn R.,
Kennon A., (Griffith and Ryle on) Parliament. Functions, Practice and Procedure, 2nd ed., London, 2003, p. 385).
50
9
It is argued that a turning point in order to understand the relationship between Legislatures and
Executives and thus the perspective through which to look at forms of government is the
parliamentary standing committee system. This means that, although powerful, standing committees
alone, acting as monads within legislatures, can be either low influential on the policy-making or
too determinant and thus dysfunctional on the overall institutional balance. The following definition
of committee system, inspired by Barthélemy’s theory52, has been adopted as “the coherent and
rational organization, from the structural and functional points of view, of the whole specialised
standing committees with regard to their mutual relationship, to the relationship with other
parliamentary bodies and with the Executive”.
Indeed, in order to underline the difference between legislatures where committees are
established and those relying on an effective committee system, Barthélemy affirmed that in
England there were parliamentary committees, but not a committee system in the strict sense of the
word53. Moreover, while in France (in the Thirties) parliamentary debates were led by the Executive
and by committees, in England there was only one authority to direct parliamentary activities: The
Executive.
He takes into account three profiles in his analysis. The first concerned the relationship amongst
committees. A well-settled committee system does not imply necessarily that all standing
committees have an equivalent status. Some of them, like the budget/finance committees or the
foreign affairs committees (where he served as MP), can be more fundamental than others, playing
a pivotal role in parliamentary procedures and vis-à-vis the Executive, as well as supporting
committee coordination. He enhanced the advisory powers of those committees in the legislative
process – so that they were requested to give the opinion whereas another committee was involved
on the merit of the bill – and suggested to establish some forms of cross-reference amongst
committees, for instance admitting multiple membership or allowing joint session or, better, the
participation of representatives of one committee in the meetings of the others.
Barthélemy was very critical against the Committee of the Whole, because of its hybrid
organizational nature, neither committee nor the House, that undermined parliamentary influence.
However it is important not to underestimate the significance of the Committee of the Whole in the
development of modern Parliaments54 and further, the fact that the British Committee of the Whole
has been redefined in other contexts. Therefore, while in the British House of Commons the
involvement of the Committee of the Whole replaces the committees in the legislative process, in
the U.S. House of Representatives the Committee of the Whole is summoned for all major and
financial bills in addition to the committee stage, which is maintained in any case.
The second dimension pointed out by Barthélemy involved the fact that a Parliament can be
deemed to rely on a committee system only when all decisions of the House are first prepared and
instructed by one or more committees of the system. This means that the “components” – the
committees - of the system are able to cover the entire spectrum of the public policies. Every issue
arising in the Parliament, before being considered by the House, has to be examined by committees.
Conversely, it can be added that usually committees are devoid of autonomous decision-making
power without the consent of the House and (though there are exceptions) they are not formally
entitled to represent the Parliament – for instance before the judiciary – against its will. Nonetheless
many times once a position is taken by committees this is not reverted or even amended by the
House, so that de facto the decisions of the Parliaments reflect what committees want.
52
See Barthélemy J., Essai sur le travail parlementaire et le système des commissions, Paris, 1934, p. 15 s.
Ibidem.
54
Indeed the Committee of the Whole was firstly summoned in 1606, during the Kingdom of James I, as a tool to escape
from the King’s control over parliamentary activity. At the beginning it met in secret and the Speaker of the House,
considered as the longa manus of the King in Parliament, was (and is) not allowed to preside over, so that a deputy and
temporary Speaker was appointed. Thus the Committee of the Whole was an important instrument to preserve
Parliament’s independence from the Executive. See Campion G.F., An Introduction to the procedure of the House of
Commons, London, 1968, p. 27.
53
10
The third dimension highlighted by Barthélemy concerns the relationship between committee
system and Executive. According to him, only a well-suited committee system is capable “to carry
out a methodical, coherent, organized and effective oversight on the Executive”55.
In this respect, it seems particularly important to look at the constitutive moment of
parliamentary standing committee systems across the legislatures concerned. Parliamentary history
shows a first element in common to the five legal systems with regard to the internal organization of
the legislatures, that is their progressive institutionalization. As it has been observed, this process
regards primarily parliamentary committees and it moves along two directions56. The first deals
with the setting up of internal bodies specialised by subject-matter, thus essentially standing
committees. On this perspective all the Parliaments analysed are equipped with standing
committees, though having different functions and powers and created in different periods. Indeed,
this kind of committees (though still not organized as a system) were established in the United
States and in France at the end of the Eighteenth century; in the Italian and the British Parliament,
in the second half of the Nineteenth century; in the EP, since its foundation, in the second half of
the Twentieth century.
Instead, the second level of institutionalization took place within the committee system,
regarding its stability throughout the years and the degree of specialisation of its “components”, that
are committees. Starting by a very limited number of standing committees, once set up, their
increase (in number) has been a sort of ineluctable trend in all legislatures. This increase stopped
only when the number of committees mirrors to a certain extent that of the Executive’s departments,
ideally creating a “correspondence of jurisdictions”. The establishment of a committee system
having these features took place between 1817-1818 in the U.S. Congress, in 1902 in France, in
1920 in Italy, in 1958 in the EP and in 1979 in the United Kingdom.
The push towards this process of institutionalisation depended on several factors, most of them
in common to the five legislatures.
The fist factor influencing the establishment of standing committees and then of committee
systems was the formation of parliamentary groups or, at least, the explicit acknowledgment of the
role of political parties in Parliament. Indeed, the recognised presence of political groups led to look
for new organisational arrangements, aiming at taking into account their weight most of all during
the legislative process. The shift from the method of the Bureaux, composed of MPs selected by lot
(the only rational and impartial criterion for organizing the stage of bills’ consideration) to that
relying on standing committees, formed proportionally to the size of political groups, is emblematic.
The setting up of political groups, however, was a necessary, but not a sufficient condition. The
second factor influencing the structuring of committee systems was the increased rate of
parliamentary activity. Possibly the growth of the demand of regulation, for example deriving from
the passage to the welfare state, imposed on Parliaments to carried out a higher number of
contextual procedures than in the past. This implied the empowerment of parliamentary bodies
accomplishing preliminary investigations or examination and then the preference was given to
specialised standing committees. These committees were more capable to build up specific
competences and expertise on the matters falling within their permanent jurisdiction compared to
temporary committees or the Committee of the Whole.
The third factor explaining the setting up of committee systems was the will to counteract the
strengthening of Executives and the bureaucracies, due to the expansion of public policies and of
the public administrations. Until when standing committees were established, parliamentary
oversight function was scarcely effective and accomplished by the House from time to time.
55
See Barthélemy J., Essai sur le travail parlementaire et le système des commissions, cit., p. 58-59 (my translation
from French).
56
Norton P., Nascent Institutionalisation: Committees in the British Parliament, in L.D. Longley, R.H. Davidson (eds.)
The New Roles of Parliamentary Committees, London, 1998, p. 143.
11
A fourth factor, extemporary in nature, affecting the setting up of standing committees was
linked to historical phases of “extraordinary constitutional life”, when the emergency required to
accommodate new institutional arrangements, then maintained once the critical phase passed.
Standing committees were set up in the Italian Parliament during WWI and in the U.S. Congress
during the escalation of tension with France in 1798 and then held.
However, notwithstanding these similarities across legislatures, some distinctive features
persisted on how Parliaments were (and probably are) organized. Thus, according to Miceli57, it was
possible to point out three models of parliamentary organization at the beginning of the Twentieth
Century.
The first model was that of legislatures preferably organized in standing committees, like the
U.S. Congress (on the example of many State Congresses), characterized by a high degree of
autonomy and specialisation, but at risk of bureaucratization. Their autonomy depended primarily
on the lack of an Executive entitled to “direct” parliamentary activities. Afterwards, the worldwide
success of this model58, also within parliamentary forms of government (like in Italy and in France),
seems to testimony its better performance, in accomplishing both the legislative and the oversight
functions, than the other two models.
The second model was exemplified by the British Parliament (and now partially updated through
departmental select committees) and its Committee of the Whole, based on the tendential
coincidence between House and Committee of the Whole membership. The plenary remained the
very center of parliamentary activity, the only who can effectively amend bills and oversee the
Executive.
Finally, the third model – widespread at that time, but now obsolete – was adopted mainly in
continental Europe, and first of all by the French and the Italian Parliaments, which were used to
organize in not specialised bureaux, formed by lot and functioning through a complex series of
procedures between the bureaux, the central bureau and the House. The model was abandoned
because was not able to manage the structural transformations of Parliaments (gradually elected by
universal suffrage and organized in political groups) and their workload.
In the aftermath of the committee systems’ foundational moment, prominent features of the
arrangement of committee functions can be observed. At the beginning of the process of
institutionalization standing committees were set up for administrative and bureaucratic tasks (for
instance, for guaranteeing parliamentary privileges, for drafting Parliament’s budget and for the
correct application of the rules of procedure) or for the examination of petitions. At that time
standing committees mainly showed an internal relevance. Then, as the Executives adopt a definite
structure in Ministries and departments, standing committees multiplied, starting by budget
committees that became the linchpin of most parliamentary procedures. Initially standing
committees were devoid of powers in the legislative process and still today the functions and the
powers assigned to committees is what differentiates them most.
Indeed, once set up their committee systems, the U.S. Congress, the European, the Italian and the
French Parliaments (during the Third and the Fourth Republics) assigned them the legislative and
the oversight functions. On the contrary, this was not case for the British and French committees
during the Fifth Republic, though for different reasons. While the standing committees in the
57
See Miceli V., Principii di diritto parlamentare, Milano, 1910, p. 44-48.
See Lees J.D., Shaw M. (eds.) Committees in Legislatures. A Comparative Analysis, Durham, North Carolina, 1979;
Zeh W., Informe sobre la organización, las funciones y el procedimento de las comisiones en el Bundestag, in J.C. da
Silva Ochoa (ed.) Las comisiones parlamentarias, Vitoria-Gasteiz, 1994, p. 15-60; Strøm K., Parliamentary
Committees in European Democracy, and Ágh A., Changing Parliamentary Committees in Changing East-Central
Europe: Parliamentary Committees as Central Sites of Policy Making, in L.D. Longley, R.H. Davidson (eds.) The New
Roles of Parliamentary Committees, London, 1998, p. 21-59 and p. 85-100; Vila Ramos B., Los sistema de comisiones
parlamentarias, Madrid, 2004, p. 233 s.; Forcese C., Freeman A., The Laws of Government. The Legal Foundations of
Canadian Democracy, Toronto, 2005, p. 304-319; Huneeus C., Berríos F., Cordero R., Legislatures in Presidential
Systems: The Latin American Experience, in The Journal of Legislative Studies, n. 3-4, 2006, p. 404-425.
58
12
British Parliament, called since 1979 select committees, cannot ordinarily participate in the
legislative process, the standing committees of the French Parliament, until recently, were not
deemed to exercise the oversight function. According to the jurisprudence of the Conseil
constitutionnel since 1959, they simply enjoy an informative role towards the House, the only body
entitled to oversee the Executive’s conduct (committees’ role was not autonomous, but rather
instrumental to this purpose)59.
5. The influence of the parliamentary committees’ systems on forms of government
Here follows the two-step analysis of the influence of the committee systems on the forms of
government.
First of all, as mentioned in para.1, it is necessary to develop a first taxonomy, ideally
“measuring” the strength of the committee systems in Parliament; strength that depends on the
degree of specialization of the standing committees by subject-matter and by function – for
instance, whether the same standing committees carry out both the legislative and the oversight
functions or not -, their level of coordination and their autonomy vis-à-vis other parliamentary
bodies (other kinds of committees, the Speakers, the Plenary, the Conference of the Presidents of
political groups etc...).
Secondly, this analysis will be complemented by that of the powers of the standing committees
in the selected constitutional orders, aiming to define the impact of the different committee systems
on the determination of the general political directions and priorities of each legal system.
Starting by the first taxonomy, at the beginning it is required to consider the structural features
of the specialised standing committees as individual body. These features, which allow to identify
the degree of committees’ specialization, deal, for example, with the existence of constitutional
provisions on the committees, on the level of detail reached by these norms on their composition
and organization. Moreover, amongst the structural features included:
- The regulation of the committees’ number and the size and their weight on parliamentary
activity (for instance, very often the budget committees play a pivotal role during the legislative
process compared to other committees).
- The procedure of selection and appointment of committee members, the role of political parties
and groups and who has the last word on their composition.
- The positions provided within each standing committee and how they are allotted (the role of
the Chairmen, the presence of a committee bureau, the appointment of a Rapporteur and a
Shadow-Rapporteur on each bill and dossier, the official acknowledgment and Representatives
of political groups in committee).
- The level of organizational autonomy enjoyed by committees, particularly the possibility to set
up and the effective establishment of subcommittees (their limits and the regime of their
relationship with the main committee), the normative autonomy of committees towards the
House (for instance, whether they can adopt their own rules of procedure) and the norms on the
publicity and transparency of committees’ work.
- The availability of committees’ financial and human resources and the support of (politically)
independent administrative bodies and civil servants providing documentation and information.
- The effectiveness of the party/group discipline within committees compared to other factors,
like seniority.
Afterwards, the features of the committee systems in Parliament need to be analysed, taking into
account the following elements:
59
See Türk P., Les commissions parlementaires permanents et le renoveau du Parlament sous la Ve République, Paris,
2005, p. 423-426 and Thiers É., Le contrôle parlementaire et ses limites juridiques: un pouvoir presque sans entraves,
in Pouvoirs, n. 134, 2010, p. 71-81.
13
-
The relationship amongst specialised standing committees, in order to consider whether MPs
can be members of more than one committee and on what conditions; how bills and documents
are assigned to committees; if multiple assignments (meaning that there is an overlapping
amongst several committees examining the same bill) and/or joint session between committees
are provided; if a body for the coordination of standing committees is established, with which
composition and power.
- The place of specialised standing committees in the wider framework of parliamentary
procedures, in order to assess the autonomy recognized to committees’ Chairmen with regard to
parliamentary majority – represented, where it is the case, by the Speaker, by the Majority
leader, by the Whip, by the Conference of the Presidents of political groups, by the Committee
on Rules -, in particular on the relations between plenary and committees meetings (if
committees can or cannot be summoned contextually to the House); how disputes between
committees are settled, whether they are solved autonomously between them or after the
decision of a third body (usually the Speaker) within Parliaments; how the relationship between
the system of specialised standing committees and other committees (special, bicameral,
conciliation committees, the Committee of the Whole and inquiry committees) is shaped.
Thus, on the basis of the two aspects pointed out, on the one hand, the level of specialization of
the committee system, on the other hand, the coordination within the committee system and its
autonomy towards other parliamentary bodies, four models of committee systems can be identified:
i) “Weak” committee system, low specialised and coordinated and not autonomous.
ii) “Partially influent” committee system, only specialised by function and low-coordinated, but
quite autonomous.
iii) “Predominant” committee system, hyper-specialised, very autonomous and not particularly
coordinated.
iv) “Strong” committee system, properly specialised, well coordinated and autonomous.
However, this categorization alone encounters some limits in explaining the real weight of a
committee system in a constitutional legal order, because it takes into consideration only factors
confined within legislatures. Therefore the analysis has to be enriched by the study of extraparliamentary variables, starting by those referring to the wider constitutional context:
- The level of pluralism defining the legal system, the number and the level of polarization of
political parties.
- The lack or the existence of the confidence relationship between Executive and Legislature
- The “size” of the government, whether there is a majority (or party), coalition or minority
government; unified, divided government or cohabitation.
Subsequently, the position of the Executive within committees needs to be studied:
- The opportunity for Executive’s members to seat in committees and with which status and the
provision of a duty upon them to attend committees meetings when so required.
- The degree of correspondence between committees’ jurisdiction and competence of the relevant
Ministry.
- The power of the Opposition in committee.
Finally the relationship between committees and Executive within parliamentary procedure will
be dealt with, by analysing:
- The influence of committees on the content of the parliamentary agenda.
- The acknowledgment of veto or autonomous decision-making power to committees.
- The recognition of both legislative and oversight functions upon the same committees or, on the
contrary, their disjunction amongst different bodies.
- The role of committees in the exercise of the legislative and the oversight functions.
Laying these results on those obtained with the first categorization, a second taxonomy can be
defined, combining the strength of the committee systems in Parliament (see para 5.1.) with the
powers granted to committees in the constitutional order. Thus four forms of governments can be
identified, depending on:
14
I) “Non influential” committee system.
II) “Majoritarian” committee system.
III) “Consensual” committee system.
IV) “Decisive” committee system.
5.1. Parliamentary variables and strength of committees. Four types of committees’ systems
Table 1. Strength of committee systems within Legislatures
5.1.1. “Weak” committee system
“Weak” committee systems are marked by low level of specialisation and coordination inside
and low level of autonomy towards other parliamentary bodies. They are usually composed of few
standing committees - compared to the overall seats in the House –, big in their size and each of
them responsible for a wide range of subject-matters, thus having an extensive jurisdiction to
“cover”. Moreover, this kind of committee system is often imbalanced only on one of the two
mainly parliamentary functions, mostly on the legislative side. Contacts amongst committees are
occasional and not normatively pre-arranged. Usually multiple membership of committees is
prohibited – even though the participation, without the right to vote, in other committees’ meetings
is allowed, especially of Rapporteurs. Committees are passively subjected to decisions of the
Speaker or the Conference of the Presidents of political groups.
The “weak” committees system could be found within the French Parliament of the Fifth
Republic until the end of the Nineties. At the present, the structure of the committee system has not
been overturned. However, initially, through a series of legislative reforms and of the Rules of
procedures between 1999 and 2004 and, afterwards, through the constitutional reform in 2008, the
National Assembly’s committee system seems to have been reinforced.
15
Notwithstanding these recent reforms, until the end of the Twentieth century there were very few
standing committees, only six (and the number was limited by the Constitution), having great size,
having around 70 MPs each. Thus every committee had to look after many different policies.
Moreover, with regard to the committee stage during the legislative process, Article 43 of the
French Constitution fixed the principle of prevalence of the involvement of special or temporary
committees over the standing ones. Although this principle has been substantially bypassed in
practice, its presence underlined the will to keep the committee system deliberately weak. In
addition to this, the above mentioned warning (para. 4) by the Conseil constitutionnel in 1959 (59-2
DC) needs to be considered. In this decision the Conseil reserved the oversight function only for the
House. Standing committees could organize hearings, but the information collected were simply
instrumental for the evaluation and the control of the plenary.
In the second half of the Nineties the situation has slightly changed. The role of the finance
committee of the National Assembly was enhanced in monitoring public expenditures; all standing
committees could set up so-called missions d’information, a sort of temporary subcommittee
(whereas permanent subcommittees are forbidden) authorized for a short period of time to
accomplish investigations on a certain issue.
Nonetheless, for a long time the role of standing committees was limited to the legislative
process without any guarantee in terms of time allotted to them for consideration and without any
real power to influence the content of the bills: Government bills reached the plenary exactly as
they were introduced.
With regard to the coordination, committees were mutually independent and MPs could (and
can) serve within one committee only. The sole mechanism of coordination existing amongst
committees is given by the advisory role recognised to some of them, depending of the bill. This
means that the bill is assigned to a committee, but others can be requested for an opinion (as always
happens to the finance committee).
Generally speaking, standing committees are completely submitted to decisions taken by
someone else in the House. For instance, in the case of conflict of jurisdiction between two or more
committees, the conflict had to be solved by the Speaker, according to the Rules of procedure, by
setting up a special committee. The groups counting on the majority in the Assembly decide on the
appointment of committees’ Chairmen and of Rapporteurs, the latter being the key player of the
legislative process. Committees’ Chairmen have not margin of manoeuvre in determining
parliamentary agenda (they seat in the Conference of President, by cannot vote).
Finally, standing committees do not enjoy organizational autonomy : they do not adopt own rules
and cannot rely on autonomous financial resources. They cannot establish standing subcommittees
neither decide (substantially) on their own when to meet.
5.1.2. “Partially influent” committee system
“Partially influent” committee systems show a high level of internal specialisation by subjectmatter and of mutual autonomy, only limitedly counterbalanced by effective mechanisms of
coordination. Moreover these committee systems are also very autonomous in relation to other
parliamentary bodies.
The specialisation of “partially influent” committee systems is often limited to the
accomplishment of one parliamentary function, while the other function is assigned to other bodies,
thus circumscribing the impact of standing committees’ activity. To some extent it seems “half”
committee system.
The high degree of mutual autonomy, instead of reinforcing these committees, runs against them,
since they are not capable to act as a unitary system.
Such a committee system can be found in the British House of Commons. The level of
specialisation of its standing committees (which are entitled to accomplish only the oversight
function) by subject-matter is remarkable. There are more than 20 select committees, of small size
(between 11 and 13 members) and well-balanced in powers (there are no evident asymmetries),
16
even though some of them were set up decades before the others and enjoy a much more significant
political weight, like the Public Accounts committee.
The establishment of a standing committee system in the House of Commons is recent, dating
back to 1979 and is limited to the Executive’s oversight. In other words, select committees, even
competent in principle, do not participate in the legislative process (they intervene before its
beginning through the pre-legislative scrutiny of the bills), carried out by ad hoc public bill
committee or the Committee of the Whole.
The strength of select committees would certainly be more significant if there were also
corresponding and permanent legislative committees or if the same select committees exercised the
legislative function as well. Instead the present committee system is taken apart from the legislative
process and from those temporary committees entitled to participate in.
What could firstly appear as a factor of their strength, their great autonomy - select committees
can meet when they want, even contextually to the House, on any issue -, risks to isolate them in the
Parliament.
Standing Orders assure select committees’ bipartisan functioning – mainly due to their
backbenchers membership - and make whips’s authority low influential on them, but do not contain
very effective provisions about their coordination. The only tool to this purpose is the liaison
committee, formed by the Chairmen of departmental select committees, but not having real power to
become their trait d’union.
By contrast it would be convenient to identify “channels of communication” amongst the intense
activities of select committees, both at level of their composition (for instance fostering multiple
membership) and of procedures. This coordination is even more crucial when accomplishing the
oversight function than the legislative one, since the first one does not produce a common output –
i.e. the statute – but could potentially led to different results on similar issues.
5.1.3. “Predominant” committee system
“Predominant” committee systems are featured by their ability to give the imprinting to
parliamentary activity: they have the formal or (more often) the informal powers to determine the
timing, the content and the outcome of parliamentary procedures. Those standing committees, much
more than the Speaker or the Whips, condition what that legislature is.
This happens first of all because of the high degree of specialisation by subject-matter that
characterised this kind of committee system, whose components are entitled to exercise both the
legislative and the oversight functions. The system is formed by several and small standing
committees, because, compared to the overall composition of the House, MPs are members of twothree committees at the same time. Moreover the specialisation relies on the establishment of many
permanent subcommittees within each committee. And each subcommittee is further specialised.
But the predominance of the standing committees depends at least on other two factors. The first
is the capability of standing committees to essentially decide whether a bill will reach the Floor and
to fix or negotiate the content of the bill in a way that does not permit subsequent distortions of its
meaning without the explicit consent of the relevant committee. The second factor reinforcing
standing committees is the fact that each of them has its own Rules, budget, staff and
documentation. Their autonomy is so strong that sometimes the framework of a committee system
is not easy to catch.
The model of “predominant” committee system is embodied in the two Houses of the U.S.
Congress, although more or less evidently depending on the decade. For sure it was more marked in
the past (particularly in the Twenties and in the Seventies) than today60. Indeed, since the Nineties
and especially in the House of Representatives - the “majoritarian” House – the influence of
60
See Schickler E., Disjointed Pluralism. Institutional Innovation and the Development of the U.S. Congress, Princeton,
Princeton University Press, 2001, p. 85-240.
17
political parties has increased significantly (someone has talked about “legislative leviathans” to
describe parties in the House)61, thus reducing at least partially committees’ autonomy.
The U.S. committee systems is hyper-specialised. Every Chamber has set up 20 standing
committees, plus about a hundred permanent subcommittees (less in the Senate, which is composed
only by 100 senators, and more the in House, formed by 435 MPs). Committees are ranked,
depending on their strategic importance in the policy-making and the ranking is fixed in the Rules
of procedure. For instance, foreign affairs and finance committees are deemed to be more influential
than the education committee. Of course, committees’ position derives also from their “special
jurisdiction”, as happens to the committee on judiciary of the Senate, who scrutinise the
appointments of judges, or the Ways and Means committees, who decide on the appropriation of
public funds. According to the ranking of the committee, seats are apportioned on designation of
political parties (caucus) and taking into account the seniority of the MPs. Multiple membership of
different committees and subcommittees is the general rule, although now limits have been fixed, in
order to guarantee a balanced distribution of seats amongst MPs (seats are distributed firstly
proportionally to the two parties). Committees’ specialisation is also fostered by the seniority rule,
an informal rule that allows to seat in the same committee election after election. The most is the
time spent within a committee the most are the chance to become Chairman, a key position in the
U.S. Congress.
Every committee enjoys full independence from other committees and from other parliamentary
bodies. Although it is possible to discharge a committee from a bill, this happens very rarely and
committees remain, through their Chairmen, arbiters of their time and free to select the bills from
those assigned. The complete independence of committees one another has created some problems
especially in terms of conflicts of jurisdiction. The preference for multiple assignments of bills to
more than one committee (often in sequence) – in the U.S. Congress the advisory role of committee
does not exist – has been counterbalanced by the enforcement of precedents (looking at how
previous disputes were solved) and by the conclusion of memorandum of understanding amongst
committees. Instead the coordination between Floor and committees’ activities is assured in the
House of Representatives by the extremely powerful Committee on Rules62. For instance, this
committee, a super-majoritarian body composed of 9 MPs from the Majority and 4 MPs from the
Minority, can propose to the Floor the adoption of special orders (almost always approved by the
House) that derogate to the Rules of procedure, e.g. shortening the legislative process and deciding
whether and to what extent a bill can be amended on the Floor.
For a long period, between 1948 and the end of the Eighties, also the standing committee
systems of the two Houses of the Italian Parliament could be considered as “predominant”. Here the
specialisation did not stem from the internal structure of the committee system or because of the
standing committees’ number, but rather from their exclusive focus on a certain subject-matter and
on a specific department, neglecting completely the overall parliamentary activity. Each standing
committee was completely absorbed by its competence and only care about its Ministry. This led to
a high level of fragmentation of parliamentary procedures and a very scarce level of coordination.
The Italian standing committees, entitled to accomplish both the legislative and the oversight
functions (though the balance was diverted in favour of the legislative function), were able to shape
the parliamentary agenda of the Houses according to their will and priorities.
Moreover, until the beginning of the Nineties, the procedure provided in Art. 72, para. 3 of the
Italian Constitution, allowing committees to replace the House for the final approval of bills, was
used to adopt most legislation. Because of the complex political situation at that time, which did not
contemplate for left parties (mainly communists) any expectation to form part of the Executive, the
61
See Cox G., McCubbins M., Legislative Leviathan: Party Government in the House, Berkeley, California University
Press, 1993.
62
See House of Representatives of the United States, A History of the Committee on Rules, Washington D.C., U.S.
Government printing office, 1983, p. 3 s. and McKay W., Johnson C.W., Parliament and Congress: Representation
and Scrutiny in the Twenty-first century, Oxford, 2010.
18
“secret rooms” of parliamentary committees became the places where all political groups (including
those from the left) could concur in the determination of national policies. Committees became the
place of political compromise. Thus there were general agreement in making committees the
legislative centres of the Italian politics; several different and parcelled legislative centers, sector by
sector, without any regard for the tenure of the overall system of government.
Respect to this situation, within a new political system (but relying on the 1948 Constitution),
two elements produced a change: The first was the gradual abandonment of the legislative
production in committees. The second element, through the reform of the Rules of procedure,
between the Eighties and the Nineties, consisted in the attempt to reinforce the coordination
amongst committees, enhancing the advisory role of committees in the legislative process,
particularly of those having cross-sectional jurisdictions (like those on the EU affairs, on
constitutional affairs, on the budget); and the coordination between committees and the House
through the scheduling of parliamentary activity (in this regard, committees’ position has been
weakened). Due to these transformations, the Italian committee system cannot be deemed to be
“predominant” anymore.
5.1.4. “Strong” committee system
Compared to the other models, “strong” committee systems show a much more evident balance
between committees’ specialisation and autonomy, where a major role is played by mechanisms of
coordination.
There are many standing committees, whose size depends on the function accomplished, whether
only to oversee the Executive and consultative or also legislative; and in their mandate, whether
their competence is sectoral, on specific policies, or cross-sectional (like committees on institutional
or constitutional affairs). Committees are allowed to set up permanent subcommittees, but within
certain limits in powers and composition.
The distribution of each office within these committees (Chairman, Vice-Chairman, Rapporteur,
Draftsman, etc....) is submitted to the negotiation amongst groups. Any decision is taken relying on
the agreement of all political components, and strictly majoritarian salutions are avoided. Chairmen
are usually appointed on the basis of seniority principle and their act more as arbiters than as
political leader, imposing their strategy. Indeed, Chairmen are constrained by several checks and
balances in their committees: Rapporteurs and Shadow-Rapporteurs, Representatives of political
groups and Draftsmen. These actors, although not opposing the Chairman, contribute committee’s
business to make more “negotiated”.
MPs can form part of different committees, even though they are normally full member of one
committee and substitute in the other. Multiple membership favours a “dialogue” amongst
committees or, better, the achievement of an adequate level of information on what the overall
committee system is doing. Usually a further element of coordination is represented by the
establishment of a Conference of committees’ Chairmen entitled to settle disputes arising amongst
committees.
Moreover, committees are well-coordinated also procedurally. Bills may be assigned to a
committee as “principal”, whereas other committee can be requested to give their opinion; Or the
procedure by associated committees can be followed. This means that more committees are
responsible on a certain bill and each committee has to limit its involvement within its jurisdiction.
The association of different committees on the same bill guarantees a more synergic procedure (for
instance allowing committee members to attend the meetings of the other associated committees),
avoiding the organizational problems caused by the procedure by joint committees.
As for the functions, within the “strong” committee model, committees can exercise both the
legislative and the oversight functions and have enough powers and authority to control the
legislative process also in the Floor.
A “strong” committee system is evident in the European Parliament, depending also on the
inflexible schedule of its activity. Indeed plenary can meet only once (sometimes twice) a month for
19
two-maximum three days. Debates in plenary are very limited in time (MPs very often speak under
the one minute rule)63 and then issues are voted in sequence, usually with few amendments to
committee Reports.
Committees’ life is regulated by a rigid balance between political groups and national
delegations that assure a certain degree of predictability of their conduct. In the European
Parliament committees are really capable to act as a system. Committees requests are move forward
jointly to the Conference of the Presidents by the Conference of committees’ Chairmen. Conflicts
of jurisdictions amongst committees are solved autonomously by the involved committees or by
their Conference without requiring the diktat of the Speaker. The role of substitute allows
committee meetings to take place contextually (because of the opportunity to be replaced) and
guarantees organizational flexibility.
Committees’ powers are extensive, both on the side of the oversight – for instance on
appointments – and on the legislative one, being able to control any stage of the legislative process.
Indeed trilogues, inter-institutional negotiations and the meeting of the conciliation committee are
attended by the relevant committee’s delegation on behalf of the EP.
Actually the “strong” committee model seems to attract other Parliaments, too. Above (para.
5.1.1.), there was mention of the “withdrawal” of the French committee system from the “weak”
committee system’s model. Indeed, since the constitutional reform in 2008 the weight of French
committees in the National Assembly has significantly increased64. The main obstacle to their
strengthening is constituted by the very low degree of specialisation: indeed the maximum number
of committees allowed by the Constitution, though growth from six to eight after the reform (plus
the committee on EU affairs which carries out partially different functions), is still too limited. This
threshold makes committees as plethoric bodies, which can be neither articulated in subcommittees.
However, it cannot be denied that after the constitutional reform their strength in Parliament has
growth. According to the Constitution, committees can modify bills and the new text, as amended
by them, is the basis for the Floors’ consideration. Moreover, they have been empowered by new
oversight tasks and, in principle, they can even veto – even though is almost impossible that it will
happen – presidential appointments.
With regard to the change of the model, the same applies to the Italian Parliament, although for
different reasons. During the first forty years of the Italian Republic the excessive strength of single
committees caused serious problems to the government of the country: amongst them, a high
inflation rate and the uncontrolled increase of the public expenditure. Each committee being
authorised to approve statutes, thousands of statutes providing micro-sectoral measure (thus these
statutes, called “leggine” by Predieri and Di Palma65, looked more like administrative measures
than general and abstract norms), led to a huge waste of public resources. The decentralization of
the legislative production in the absence of effective tool of coordination determined instability.
The “normalization” of the Italian committee system, more or less deliberately pursued (there
were no constitutional or legislative reforms on this point) led to the setting up of mechanism of
coordination amongst committees and to the abandonment of the legislative production in
committees (even though it still remains as a legal possibility).
Ai it will be shown in para. 5.2., the legislation is now featured by omnibus statutes, whose
examination thus requires accurate connection amongst committees. Also the number and the type
of statutes approved point out that committees are not the centre of legislation anymore. Most
statutes contain delegations to the Executive, a required to convert decree laws or authorise the
63
See Art. 149 and 150 of the EP Rules of procedure.
See Avril P., Gicquel J., Droit parlementaire, 4th ed., Paris, 2010, p. 104 s. and Camby J.-P., Servent P., Le travail
parlementaire sous la cinquième République, 5th ed., Paris, p. 68 s.
65
See Predieri A., Parlamento 1975, in A. Predieri (ed.) Il Parlamento nel sistema politico italiano, Milano, 1975, p. 71
and Di Palma G., Surviving Without Governing. The Italian Parties in Parliament, Berkeley-Los Angeles-London,
1977, p. 185 s.
64
20
ratification of international treaties. And in these hypothesis the approval of statutes by committees
is forbidden by the Constitution (Art. 72, para. 4).
The formal invariance of committees’ powers, even though they are used differently from the
past, and the increased synergy amongst committees could led to see the Italian Parliament as if it
was turned to the “strong” committee system’s model. However, this conclusion seems misleading
if examined in the light of the current scarce influence of standing committees, alone or as a system,
within the overall organization of parliamentary activity. For example the determination of
parliamentary agenda, which was substantially imposed by committees until the Eighties, nowadays
takes place without any consideration for the accomplishment committees work. This circumstance
appears particularly serious, due to the fact that the timing and the way the legislative and the
oversight functions are carried out derive entirely from the settlement of parliamentary agenda.
Italian committees have to adequate the accomplishment of their tasks to the very narrow spaces left
to them.
Therefore, the alternative to the inclusion of the Italian committee system within the “strong”
model is that, in spite of the Constitution, it is actually turning towards the model of the “partially
influent” committee system.
5.2. Extra-parliamentary variables and role of committees. A hypothesis of categorization of forms
of government
Table 2. Committees’ influence on the determination of the general political directions. Forms of
government based on:
5.2.1. Form of government based on “non influential” committee systems
The form of government based on “non influential” committee systems is usually found in legal
orders where the confidence relationship between Legislature and Executive is provided and where
21
the Executive is able to condition, according to its political programme, the development of
parliamentary activity and particularly of committees.
On the one hand, committees are affected by a low degree of specialisation (by subject-matter
and by function) and of mutual coordination – normally this form of government is associated to
“weak” or “partially influential” committee systems -; on the other hand, committees are passively
subjected to the general political directions and priorities (“indirizzo politico”) settled outside the
Parliament, by the Executive alone. Almost always committees are not in a position to revise or codefine these general political directions. In these contexts political cleavages and political parties
are not numerous and polarised, so that there is no need for lengthy and complex bargaining in
committees aiming at finding a political agreement. Moreover Executives are very often featured by
party (majoritiarian) governments or by cohesive coalition governments66.
Committees are essentially dominated by the Executive in their daily activity and for the drafting
of their agendas - completely shaped by that of the plenary – and are devoid of decision-making and
veto powers. As for the legislative and oversight functions, they are usually disjointed on different
committees and standing committees are preferably involved with very limited powers only in the
legislative process.
Examples of this form of government are represented by France during the Fifth Republic at
least until the end of the Nineties and by United Kingdom until 1979.
Indeed, in the French National Assembly – regardless of the presence of a cohabitation, which
does not have great impact no committees’ performance – not only committees were really low
specialised (today the situation has slightly improved), but their schedules and agendas were
entirely fixed by the Executive. For instance, the power to modify Government bills or to
accomplish an exhaustive preliminary examination of bills was substantially preclude to
committees. Committees were also excluded from the oversight function. The jurisprudence of the
Conseil constitutionnel on this point has already been mentioned, but also tools like the missions
d’information were scarcely used, episodically and for a limited amount of time: the systematic
control of the Executive was not carried out.
Both in France and United Kingdom political cleavages are not such deep to make the
parliamentary debates particularly polarised and the Executives, even when based on coalitions, as
usually happens in France (where four parties compete in two coalitions), are stable, lasting for a
parliamentary term.
To tell the truth, in the United Kingdom the form of government was not influenced by
committees at all before the setting up of departmental select committees. Possibly the only
influence committees can have before the Seventies relied on the standing committees already
established (even though without a unitary and coordinated system of standing committees), like the
Public Account committee (set up in 1861), but they enjoy very limited powers to oversee the
Executive.
Instead, the legislative function was and is still carried out by temporary committees (public bill
committees) and by the Committee of the Whole (before the bill reaches the Floor of the House). In
contrast with the composition of departmental select committees, who are formed by back-benchers
only, public bill committees and the Committee of the Whole are composed of Ministers and
Cabinet members too67, who take actively part in committees activity.
However, compared to this framework, the forms of government in both countries have
somewhat evolved after the normative strengthening of standing committees (by the Constitution in
France; by the Standing orders in the United Kingdom), turning France towards a form of
government based on a “majoritiarian” committee system and the United Kingdom, though only for
66
On coalition governments and their effects on legislatures, see Martin L.W., Vanberg G., Parliaments and Coalitions.
The Role of Legislative Institutions in Multiparty Governance, Oxford, 2011, p. 113 s.
67
In United Kingdom all Ministers and Cabinet members have to be MPs in order to be appointed to the Executive.
22
certain aspects, towards a form of government – which nonetheless remains featured by a “noninfluential” committees system in many respects – a little be more “consensual”.
5.2.2. Form of government based on “majoritarian” committee systems
Compared to the forms of government based on “non influential” committee systems, those
founded on “majoritarian” committee systems can be distinguished by one main feature: the powers
conferred to standing committees by the Constitution, by statutes and Rules of procedure. Indeed,
potentially in this form of government committees are provided with very incisive powers towards
the Executive and for concurring in the determination of the general political directions and
priorities. However, the “majoritarian” dynamic impressed to the form of government by less
juridical factors decreases the influence of these committees.
Usually this kind of form of government is associated either to “partially influent” or to “strong”
committees systems: this means that especially in the latter case and not considering the effects of
the Executive in the ordinary parliamentary life, the powers of standing committees in Parliament
are anything but modest.
The strength of the Executive and of its majority in Parliament, that is, for instance, their ability
to use procedural “shortcut”, which inhibit considerably committees’ activity, and an adversarial
dynamic between the Executive and the Opposition impose committees to obey to the majority will
in accomplishing their functions. Therefore standing committees are dominated by the Executive
and parliamentary majority.
In theory the powers of standing committees are very significant: for instance, committees can
choose the text of the bill then examined by the House, even replacing that of the Executive, and are
empowered with decision-making powers in the legislative process, allowing them to approve
statutes. Moreover, the oversight function is exercised more systematically than in forms of
government base on a “non influential” committee system and committees enjoy specific
prerogatives on the legal measures of the Executive, on financial procedure and on the Executive’s
appointments.
The coincidence of the legislative and the oversight functions upon the same committees can
even seem useless, due to the fact that committees are not dominus of their time anymore.
Committees’ schedule is fixed by the Executive and/or by the parliamentary body responsible for
drafting the general parliamentary agenda. Thus the real place where decisions are taken in these
Parliaments are the definitely not committees. Constraints to committes’ activities often led to the
poorer exercise of the oversight function.
Usually forms of government based on “majoritarian” committee systems are set up where a
confidence relationship between Parliament and Executive exists and particularly in France, within
the new legal framework fixed by the reforms of the Rules of procedure in the Nineties and by the
constitutional reform in 2008; in Italy after 1993, in Spain, but also in presidential forms of
government, like in many countries of Latin American. From this perspective, an interesting case is
that of the Brazilian Congress, whose standing committees in principle have decision-making
powers in the legislative process; power that remains substantially unused, its enforcement being
forbidden in the procedure to convert decree laws issued by the Head of State into law (médidas
provisorias), the most diffused way to legislate in Brazil.
The evident interference of the Executive in parliamentary procedures, notwithstanding the
principle of the separation of powers, thwarts committees’ prerogatives, who become passive
subjects of the general political directions and priorities, exclusively fixed by someone else (the
Executive).
Since the season of reform French committees have definitely been reinforced: their number has
grown as well as their level of specialisation; they have obtained the power to choose the text of the
bill for the plenary, even in spite of the original Government bill, and the time at their disposal for
bill’s consideration is constitutionally guaranteed. Moreover, in principle they have become the
very centre of exercise of the oversight function and of evaluation of public policies (Art. 24 Fr.
23
Const.). Nevertheless the oversight is mainly reduced to the assessment of the financial impact of
bills and policies, both within ad hoc and ordinary procedures, through the standing committee on
financial issues. The committee on the control and evaluation of public policies seems to have a
modest influence so far (and it is summoned occasionally) and the committees’ power to veto
presidential appointment has been subject of a very restrictive interpretation. In addition to this, on
the side of the legislative function, the effects of the new committees’ involvement on bills can
always be challenged by the Executive, who remains free to amend substantially the bill of the
Floor of the House and finally to “armour” the bill using procedures like the vote bloqué (Art. 44
French Const.)68 and the guillotine (Art. 49, para. 3 Fr. Const.)69 or to resort to the accelerated
procedure70. All these are fast-track procedures (Artt. 39 and 45 Fr. Const.).
Therefore, although committees are more powerful than in the past and notwithstanding the
attempt to strengthen their oversight function aiming at counterbalancing the “presidentialization”
of the form of government, the general political directions and priorities are imposed to the French
Parliament and to its committees by the President of the Republic through the Prime Minister (in
period of unified government).
In Italy, though the absence of any reform of the committees (except for the setting up of the
committees on EU affairs, thus reaching the number of 14 standing committees per Chamber), since
1993 the model based on the “majoritarian” committees system has been followed. The
transformation of the political system and of electoral laws have had such a deep impact that the
agenda of the majority is imposed to both plenary and committees, whereas until the end of the
Eighties committees essentially imposed their agenda to the present majority and to the House.
Even though the time at committees’ disposal to accomplish their tasks is pre-defined, in particular
to finish the examination of a bill, the Conference of the Presidents of political groups can decide to
withdrawn the time allotted, due to urgency reasons: on these very frequent occasions the
preliminary scrutiny in committees is de facto annulled. Indeed this Conference has become the
main “intermediary” between Parliament and Executive, while in the past this role was recognized
to each standing committee, sector by sector.
In this atmosphere of “conflicting bipolarism” (“bipolarismo conflittuale”)71 committees have
dismissed their role of center of political compromise and they replicate the same conflicting
dynamics seen in the plenary. Obstructionism in committee is not rare anymore. Moreover, where
there is no agreement the approval of statutes directly in committees – once probably overused – is
excluded (the use of this procedure has significantly dropped) and the center of parliamentary
activity has shifted in the House, who ratifies what majority leaders want, without any regard for the
requests from parliamentary minorities.
68
By vote bloqué it is meant the power of the Executive to impose a single vote on the overall bill or on its parts,
barring all the amendments, except those tabled or accepted by the Executive. However this procedure does not affect
the confidence relationship between the National Assembly and the Executive.
69
By guillottine we mean the procedure by which the bill presented by the Executive is deemed to be automatically
approved unless one tenth of the MPs subscribes a motion of non-confidence then adopted by the majority of the
National Assembly’s components. The approval of such a motion is really unlikely due to the fact that abstainers are
counted as contrary to the motion. Therefore the use of this tool almost never leads to the resignation of the Executive,
but rather to the quick approval of the bill.
70
Called “urgency procedure” until 2008, the accelerated procedure provides the summoning of the commission mixte
paritaire, a bicameral conciliation committee, only after one reading of the bill by both Chambers without achieving an
agreement (instead of after two readings). See O. Fuchs, La procédure législative d’urgence, in Revue du droit
publique, 2009, p. 784, who underlines the frequent used of the urgency procedure. According to his data, between the
8th and the 13th parliamentary terms it was used for the approval of 30% of the bills.
71
See Lippolis V. Pitruzzella G., Il bipolarismo conflittuale: il regime politico della Seconda Repubblica, Soveria
Mannelli, 2007.
24
5.2.3. Form of government based on “consensual” committee systems
The form of government based on “consensual” committee systems are featured by three
elements: the first is that they usually rely on “strong” committee systems in Parliament, adequately
specialised and properly coordinated; the second deals with their nature of center of political
compromise, not only in Parliament, but of the entire decision-making process; the third refers to
formal committees’ powers, which are never decision-making power, but can be veto power, and to
their functions, due to the fact that the same standing committees are entitled to carry out both the
legislative and the oversight functions, of course depending on the matter.
Such a form of government is found on committees whose activity is finalised to reach
compromise amongst potentially very differentiated positions. Committees are capable to get to the
convergence of different points of view and demonstrate to hold their position vis-à-vis the House
and the Executive. Often this happens in legal systems characterised by multiple cleavages, not easy
to accommodate, especially in the most visible arenas like the plenary, or in the presence of
coalition or minority governments, where negotiations amongst political groups are required for the
survival of the Executive and of the legislature itself72. Indeed, this form of government is typical of
fused power system, where a strict interdependence between Executive and Legislature exists, and
in legal systems based on the “confusion” of powers, like the EU (see para. 3).
Moreover, the Executive is not excluded from the search of compromise in Parliament, since it
attends and intervenes regularly in the committee meetings and reciprocally committees are always
informed about Executives activity and priorities. The oversight function on the Executive –
contrary to what happens in the form of government based on a “majoritarian” committee system –
is exercised day by day by committees, in a pervasive way, using all the possible available tools
(questions, hearings, investigations, scrutiny on the appointments, financial procedures etc.).
Exactly because the achievement of the political compromise is not particularly easy, when
committees are able to put together all the different views in a single position, they become very
influential. Indeed it is very unlikely that the compromise they reach is reverted by the House and
by the Executive (due to the fact that it is involved in committees’ activity).
The general political directions and priorities in this context are co-defined between committees
and Executive. Examples of forms of government based on a “consensual” committee system are
those existing in some European Nordic countries, like Denmark and Finland, traditionally
characterised by minority governments and by highly specialised and coordinated committees, able
to instruct the activity of the Executive particularly in some sectors like foreign policy and EU
affairs. Furthermore on the basis of the mandate conferred by committees upon the Executive, it is
requested to justify publicly in Parliament any deviation from the position assumed by the
committees.
However, the most interesting case, amongst those examined, is certainly represented by the
European Parliament. In this respect this Parliament can be found in the opposite situation to that of
the French Parliament. If some scholars refer to the French constitutional order as based on an
“unidirectional separation of powers” because the separation of powers only seems to operate in
favour of the Executive73, within the European constitutional order it appears exactly the other way
around. In this respect, the European Parliaments occupies a “privileged position” and it has been
the beneficiary of the unidirectional separation of powers. The indeterminacy of the EU form of
government in the Treaties has left room to the EP to enlarge its margin of manoeuvre by amending
progressively its Rules of procedure substantially undisturbed. The empowerment of the EP has
been accomplished first through its Rules (on which the adjudicatory powers of the ECJ does not
appear as particularly pervasive, except for few case-law on political groups) and afterwards in the
72
See the comparative research by Martin S., Depauw S., Coalition Government and the Internal Organization of
Legislatures, paper presented at the ECPR Joint sessions of Workshop, Lisbon, 14-19 April 2009.
73
See Ceccanti S., Il sistema semipresidenziale francese: cosa dice la Costituzione, come funziona nella realtà, in S.
Ceccanti, O. Massari, G. Pasquino (eds.), Semipresidenzialismo. Analisi delle esperienze europee, Bologna, 1995, p. 67.
25
Treaties74. Moreover, the EP cannot be dissolved before the end of its term and it is not submitted to
any specific burdensome restriction to its activity, particularly from the Council and the
Commission, and on its schedule.
But especially after the Treaty of Lisbon and the further increase of the EP’s competences new
constraints on the its activity have seemed to arise. For instance, the length of the committee stage
during the second reading of the ordinary legislative procedure as well as the timing for the
approval of the EU budget are strictly regulated (Artt. 61-63; Art. 75 EP Rules). Inter-institutional
relationship have been slightly rebalanced.
The committees of the European Parliament are the crucial linchpins of all procedures within this
institution, for the accomplishment of the oversight function, but also for the legislative one. Indeed
committees are the key-players of trilogues on behalf of the EP. Both in the budget and the ordinary
legislative procedures the decision is formed through the agreements of the three institutions (EP,
Commission and Council) and in inter-institutional negotiations Parliament is represented by the
standing committee relevant to the subject-matter. After all any other organizational settlement
would not be feasible due to the size of the EP plenary (736 MEPs so far, who will become 750 plus
the President in the end) and to the limited number of its meetings per month.
EP committees represent a perfect synthesis of the level of pluralism inherent to the EU. As
mentioned above, once the agreement has been reached in committee, amongst political groups and
national delegations on a certain issue, it is not easy to revert it in the plenary. This is one of the
reasons why in the last decade simplified procedures have been introduced within the EP aiming at
speeding up the final approval of reports (already agreed in committees) in plenary without
amendments and sometimes even without debate. Of course this simplification of procedures and
the centrality of committees and the inter-institutional negotiations, which take place under closed
doors, do not help to understand how the decision is taken within the EP and how much of it is
really parliamentary-driven. Therefore there are pro and cons of the EP committees’ strength.
Finally, although the United Kingdom has been included within the form of government based
on a non influential committee system at least until 1979 (see para 5.2.1.), because a real committee
system lacked, the reform of the Standing Orders enacted at the end of the Seventies has probably
changed its position in the proposed categorization. Indeed, looking at select committees, they
follow different logics of functioning from any other parliamentary bodies of the British House of
Commons. While the Floor of the House, the Committee of the Whole and public bill committees
are dominated by the Executive and its parliamentary majority, select committees function
according to a bipartisan logic, which is basically consensual. This results do not depend, as in
other legal contexts, on the fragmentation of the party system or on the need to accommodate
contrasting national claims (as in the EU).
Even though select committees are composed proportionally to the weight of political groups in
the House, they show another fundamental feature. Their composition is deliberately aimed to
deepen a different cleavage amongst MPs: that between Cabinet members or front-benchers and
back-benchers. This cleavage, which is present in the House as well, loses its importance in plenary,
since it is generally accepted that plenary activities are directed by the Executive and thus the main
distinction there is represented by the dichotomy Majority-Opposition (even though rebellions to
the Whips are always possible and have increased in the last few years, especially under the new
collation government)75.
By contrast, the cleavage front-benchers – back-benchers is decisive on the functioning of select
committees. Cabinet members cannot be components of select committees, which are the standing
committees entitled to exercise the oversight function on the Executive, with the effect to create in
these bodies dynamics unknown elsewhere in the Chamber. Though being devoid of binding
74
On the empowerment of the EP and its explanations, see Rittberger O., Building Europe’s Parliament: Democratic
Representation Beyond the Nation-State, Oxford, 2005.
75
See Tomkins A., Our Republican Constitution, Oxford and Portland, Oregon, 2005, p. 137.
26
powers on the Executive – the Executive is obliged to answer to the questions put by select
committees’ members, but these committees do not have sub poena power -, select committees can
be seen as a significant factor for balancing the form of government, traditionally identified as fused
power system. This fusion lacks in select committees actually.
Nevertheless, because the select committees system is “half” committee system, being de facto
excluded from the legislative function (in principle conferred to them too), their influence on the
definition of the general political directions and priorities is modest and probably not sufficient to
include the United Kingdom within the category of forms of government based on “consensual”
committee system. One of the problem is the lack of coordination amongst select committees, each
of them having exclusive relationship with its relevant Executive’s department: thus the oversight is
scattered amongst more than twenty autonomous parliamentary bodies.
5.2.4. Form of government based on “decisive” committee systems
Finally, the form of government based on “decisive” committee systems can be normally find in
the presence of “predominant” committee systems in legislatures, hyper-specialised and definitely
autonomous in their mutual relationship as well as with other parliamentary bodies.
The “decisive” nature of the role of these committee systems concerning the Executive is
inferred from their ability to shape autonomously the general political directions and priorities (as
constitutive part of the form of government), defining them even in contrast with those of the
Executive. This happens very frequently, for instance during the phases of divided government in
the United States and the (negative) outcome could be the deadlock in the implementation of the
Executive’s legislative agenda or in the presidential appointments to federal offices76.
The block can be the result of the exercise of parliamentary standing committees’ functions, both
legislative or oversight, since standing committees are entitled to use veto powers, in case they are
needed. On the legislative side, an example is represented by the committee’s decision to block the
examination of a bill, thus impeding the development of the legislative process, or even not to
consider the bill at all: it is a very crucial power because committees are allowed to select what the
legislature is going to approve (in the U.S. Congress the mechanisms to discharge committees from
the consideration of a bill are not applied without the consent of the committee’s Chairman. On the
side of the oversight function, the main example is constituted by the committees’ power to veto
Executive’ regulations and delegated legislation (even though it has been considered
unconstitutional by the U.S. Supreme Court in INS. V. Chadha (462 U.S. 919 (1983)). Moreover
also presidential appointments, as it was said before, can suffer deadlock, depending on
committees’ opposition (filibustering can happen even within the U.S. Senate’s committees), but at
least formally they do not have ultimate decisional authority on this: the consent has to be expressed
by the Floor of the Senate.
On the basis of what has been affirmed, it is understandable that this kind of relationship
between Executive and committees finds their most suitable environment in presidential forms of
government, where the confidence relationship lacks. The opposite can be said for parliamentary
forms of government, because competing general political directions and priorities between the
Executive and parliamentary committees make the system unsustainable and quite opaque as for the
distribution of responsibilities. The fragmentation of the general political directions can also lead to
an increase of the legislative production, sometimes following a schizophrenic trend.
76
On divided governments, see Mayhew D.R., Divided We Govern: Party Control, Lawmaking, and Investigations
1946-1990, New Haven, CT, Yale Univ. Press, 1991; Elgie R., What is Divided Government?, in Divided Government
in Comparative Perspective, Oxford, OUP, 2000, p. 1-19; and Conley R.S., The Legislative Presidency in Political
Time: Unified Government, Divided Government, and Presidential Leverage in Congress, in J.A. Thurber (ed.) Rivals
for Power. Presidential-Congressional Relations, 4th ed., Lanham, Boulder, New York, Toronto, Plymouth, 2009, p.
157-185. On the problem of deadlock on the advice and consent procedure, see Binder S.A., Maltzman F., Advice and
Dissent: The struggle to shape the federal judiciary, Washington D.C., 2009, p. 79 s.
27
In the United States the Executive is devoid of the power to condition Congress standing
committees. These committees have substantially the power to initiate legislation; they can choose
what to examine, when and how77; it is very unlikely that they are discharged from the
consideration of a bill; they enjoy a very high level of specialisation, due to the dozens of
subcommittees, to the principle of seniority (even though it has become less important in the House
of Representatives since the Nineties) and the technical support provided, for instance, by
committee’s staff, by the Congressional Budget Office (CBO) and the Congressional Research
Service (CRS). Moreover U.S. standing committees can summon anyone under sub poena hearings,
meaning that if the witness fails to appear before them or is accused of perjury he can be convicted
and could be even accused (in extrema ratio) of contempt of Parliament. In addition to the wellknown procedures for the advice and consent on presidential appointments and on the ratification of
international treaties, where Senate’s committees enjoy only de facto veto power, the role of
committees in the budget process is overarching. Indeed each standing committee fixes the
threshold of the expenditure for the relevant Executive’s agencies and departments and concur to
harmonize them through the so-called “reconciliation bill”.
Therefore in the United States standing committees are so independent from the Executive that
they can unilaterally define their own general political guidelines, depending on their jurisdiction.
Where there is no confidence relationship the forms of government based on “decisive” committee
systems do not create specific problems, unless in case of divided government for the President.
However, the U.S. Congress does not have to be seen as a monolith. Indeed, the House of
Representatives and the Senate function in completely different manners. While the U.S. Senate is
the House of the compromise, really reflecting the U.S. motto “Out of many, one (e pluribus
unum)”, the U.S. House of Representatives is the “majoritarian” Chamber. Notwithstanding the
discrepancy in the functioning (sometimes they can also show different majorities) and the advice
and consent procedure provided only for the Senate in the Constitution, the influence of the two
Chambers on the policy-making is equivalent.
In contrast with the U.S. form of government and committee system, where confidence
characterised the Parliament-Executive relationship, the presence of a “decisive” committee system,
as it happened in Italy between 1948 and the first Nineties, seems dysfunctional to institutional
stability. Compared to the current features of the Italian form of government, included within the
category of “majoritarian” committee systems, throughout the first parliamentary terms after the
Constitution’s enactment parliamentary standing committees really dominated parliamentary
activity, particularly by using Art. 72, para. 3 Constitution’s clause, which enables them to approve
definitively legislation. At that time the consociational78 party system found very convenient to
adopt final decisions in committees, aiming at including, intentionally behind closed doors, also left
parties (and especially the communist party), which instead were publicly excluded from the
Executive because of the Cold War. From this point of view, the Italian committee model also
showed elements of the “consensual” committee systems. Indeed, the general political directions
and priorities were agreed between the Minister and the relevant standing committee. Governmental
instability and the alternation between coalition and minority governments79, each lasting few
months, were somewhat counterbalanced by the “centrality” of parliamentary committees, which
certainly impacted on the overall assessment of the “centrality” of the Parliament. To some extent
centrality of Parliament meant centrality of its committees.
However, in such a form of government the absolute predominance of parliamentary committees
towards the other parliamentary bodies and the Executive in fixing the general political directions
appears excessive. Leaving to not well-coordinated standing committees, even though the Executive
77
See Oleszek W.J., Congressional Procedures and the Policy Process, 7th ed., Washington D.C., 2007, p. 78 s.
On consociativism, see Pizzorno A., Le difficoltà del consociativismo, in ID., Le radici della politica assoluta,
Milano, 1993, p. 285-313.
79
On the differences between coalition and minority governments, see Strøm K., Minority Government and Majority
Rule, Cambridge, Cambridge Univ. Press, 1990, p. 70 s.
78
28
was “connivent”, the power to define (independently) how national policy-making is shaped led to
the fragmentation of its general political directions, sector by sector (which means Minister by
Minister and committee by committee), and to a “dangerous” inversion of roles between Parliament
and Executive. In other words, in the first forty years of the Italian Republic, there was the attempt
to set up a certain model of committee system within a form of government in which it could not fit.
Possibly the present features of the Italian form of government as based on a “majoritarian”
committee system – even though the Constitution has not changed at all - represent an overreaction
to the previous committees’ monopoly. Indeed, the annihilation of committees role towards the
Executive – one of the most prominent example is that the stage of the consideration of bills in
committees during the legislative process has substantially disappeared in spite of the Constitution –
could be seen by someone as a tool to normalize a too strong committee system compared to the
Italian form of government80.
However, the extreme effects of this understanding seem quite worrying: parliamentary
committees are a necessary element through which the deliberative process is carried out in
Parliament and if their position results too much undermined, the strength of the Parliament itself
within the form of government is severely challenged.
6. Conclusions
Prominent scholars have underlined, favourably81 or critically82 - depending on the case - that
parliamentary standing committees and particularly the committee systems are so crucial for
studying relationships between Legislatures and Executives that they can be treated as independent
variables in analysing forms of government. This statement is of the utmost importance if it is
considered that these scholars directly experienced how parliamentary committee worked. Either
from the Executive branch or as MPs they tested the theory of committees in their practice.
Notwithstanding the complex transformations of constitutional legal orders between the
Twentieth and the Twenty-first century parliamentary committee systems seem to confirm the
assumption of their centrality. Indeed, especially in parliamentary forms of government the
organizational features, the functions and the powers of parliamentary standing committees strongly
influence the Executive’s stability.
The definition of four types of committee systems (“weak”, “partially influential”, “strong”, and
“predominant”), according to their level of specialisation, mutual coordination and autonomy, and
then of four different forms of government based on the features on the committee systems and their
relationship with the Executive (“non influential”, “majoritarian”, “consensual”, and “decisive”) has
the aim to explain that each model of committee system fits well within a constitutional legal order
showing certain characteristics. Otherwise, the adoption of a non-corresponding committee system
can be dysfunctional for the performance of the form of government and could cause schizophrenic
effects for the determination of the general political directions and priorities (“indirizzo politico”).
The quality and the quantity of committees’ activity has also been put in direct connection with
the level of autonomy of parliamentary decision-making towards the Executive and other
80
This was the assessment of Michel Debré about the French committee system, considering the committee systems of
the French Third and Fourth Republics as incompatible with the parliamentary form of government (see para. 1).
81
See Barthélemy J., Essai sur le travail parlementaire et le système des commissions, Paris, 1934 and Elia L.,
Commissioni parlamentari, in Enciclopedia del diritto, VII, Milano, 1960, p. 895-910. Both of them served as MPs and
as Ministers.
82
Wilson W. (1884), Congressional Government. A study in American politics, New Brunswick, 2009 and then Wilson
W. (1908), Constitutional Government in the United States, Memphis, Tennessee, 2010. Wilson’s position towards the
weight of the committee systems actually changed according to the evolution of the U.S. presidency. As young scholar,
the weakness of the President led Wilson to criticize “Congressional government” as “committee government”; few
years later strong presidencies mitigated his position, but then again during his presidency of the United States
committees’ authority and vetoes turned him to the original position.
29
institutional actors83. This means that the strength of legislatures largely relies on the force of its
committees84. Coherently any attempt to undermine Parliaments passes through the restriction of
the margins of manoeuvre of their committees. However, such an attempt would not have the sole
effect to challenge the institutional balance within the legal system, but also to de-legitimize the
policy-making process.
If it is certainly true that committees are usually more “obscure” and “opaque” places than the
Floor of the House to debate political issues, par excellence the places where the negotiation is
carried out and the compromise is reached behind closed doors, nonetheless two factors concur to
temper this assumption.
First of all, many Parliaments, according to the model of the U.S. Congress, are about to reach a
level of transparency and publicity of committees’ activity which is substantially equivalent to that
of the plenary.
Secondly, the role of standing committees have to be preserved by Parliaments because their
involvement in parliamentary procedures is a necessary step to assure an effective and rational
deliberation. Indeed, as it has been clearly pointed out85, parliamentary deliberation cannot be
reduced only to the final debate and vote in the plenary without starting by and considering
committee stage. There is much more than the House’s decision. Moreover many parliamentary
procedures in committee end there with the adoption of a final act (resolution, opinion etc.) or they
never reach the Floor, thus they could not be understood if the Parliament is identified, as often
happens, only with the House. Underestimating these elements would imply to set apart the content
of several Constitutions, which not only provide the setting up of standing committees, but also
assign them specific functions, thus enhancing the constitutional importance of their role.
The mediatisation and the personalization of politics and the need for rapid decisions are
amongst those factors that reinforce the centrality of the House compared to committees. However,
diminishing committees’ role is highly problematic because it does not allow to prepare properly
the content of the final parliamentary decision. In this respect the committee stage has to be
enhanced.
83
See Mattson I., Strøm K., Parliamentary Committees, in H. Döring (ed.) Parliaments and Majority Rule in Western
Europe, Frankfurt, 1995, p. 249-307.
84
See Lupo N., Il ruolo del Governo nelle commissioni parlamentari, in Studi pisani sul Parlamento III, Pisa, Ediz.
Plus, 2009, p. 137-147.
85
See, for instance, Habermas J., Between Facts and Norms, Cambridge, 1997, p. 171; Costa O., Le Parlement
européen, assemblée délibérante, Bruxelles, 2001, spec. p. 1-54.
30