After the legislative upheaval, what place for the Senate?

democratic anomaly, "assembly of rye and chestnut", meeting of notables or privileged persons, the negative qualifiers are not lacking to designate the Senate, the little-known second chamber of Parliament.

This unflattering image is linked to his mode of election. The 348 senators of the Palais du Luxembourg are in fact elected by indirect universal suffrage by an electoral college composed essentially of delegates from the municipal councils, which partly explains its political composition, which is predominantly on the right and why it is described as a "Grand Conseil of the municipalities of France.

However, in view of the political crisis that France is going through, political attention could now be focused on right-wing senators, who, for some observers, would be the big winners of this legislative election.

In view of the challenges that lie ahead for the next five-year term, it is important to return to the prerogatives of the Senate as well as its role which could well be reinforced and, at the same time and in an unprecedented way, weaken the verticality of power.

Two main missions

Classically, the Senate has two main attributions: the control of the government and the vote of the law. These allow it to be a chamber of opposition, moderation and counter-power.

First, the constitutional revision of July 23, 2008 of modernization of the institutions expressly assigns to the Parliament the functions of control of the government and evaluation of the policies (art. 24). This control over the government is carried out in session, in particular through questions (oral or written) put to the members of the government.

Moreover, senators do not hesitate to ask written, oral or topical questions (their number has risen sharply with 580 issues for the 2020-2021 session) to control government action but also to alert public opinion.

For example, senators asked questions about the prison overcrowding, drug price transparency or on the device Parcoursup.

This control mission is also exercised through delegations or commissions. Some of them have also had a strong media impact. We remember under the first five-year term of Emmanuel Macron the "mission of information on the conditions in which people not belonging to the internal security forces were able or can be associated with the exercise of their missions of maintaining order and protection of high personalities and the system of sanctions applicable in the event of breaches", say “Benalla committee” which caused a lot of ink to flow and raised to their climax the tensions between the Élysée and the Senate in 2018.

This commission of inquiry had important repercussions both politically and legally. By highlighting numerous dysfunctions, this commission has indirectly challenged the responsibility of the President of the Republic and enabled the creation of the Security Directorate of the Presidency of the Republic the following year.

More recently, senators have investigated the growing influence of private consulting firms and other private sector actors on public policy (which gave rise to the "McKinsey Affair") and raised questions about the government's management of the Covid-19 crisis. These various initiatives show that the role of the Senate is important in controlling the action of the government and bringing to light, like a whistleblower, certain failings.

Significant legislative power

Then, the Senate has the legislative power and, as such, it votes and can initiate laws. In this field, the Upper Chamber also plays a very important role since it intervenes, most often (except for certain texts where the Senate must be seized as a priority, like the laws targeting local authorities in application of 39 article of the Constitution) in second reading.

Being seized second in the context of the parliamentary shuttle (transmission and examination of bills and proposals), senators see a text already discussed arrive, which they can improve and amend.

This is also one of the qualities unanimously recognized in the Upper Chamber, that of participating in the improvement of the law. Chamber of reflection, the Senate, does not always play the role of a simple political opponent.

Over the period 2020-2021, we can see that three out of four texts were adopted in the same terms by both chambers. However, it can also prove to be an offensive counter-power by refusing, even after the meeting of a joint committee, the adoption of certain texts such as the law relating to bioethics or the bill relating to the universal system of retirement, adopted through the use of Article 49.3 in the National Assembly but which was later abandoned.

This last example shows that the government can neutralize the second chamber by giving the last word to the National Assembly, which is not the case in the context of constitutional revisions.

Absolute blocking power

The Senate has, in fact, an absolute power to block in the event of disagreement concerning a constitutional revision even though it cannot be reached by dissolution, the executive only having this weapon against the National Assembly. pursuant to Article 12 of the Constitution.

Enshrined in article 89 of the Constitution, the revision procedure comprises three phases: initiative, adoption and final adoption. As regards the initiative, it comes either from the executive (the Prime Minister proposes a draft revision to the President of the Republic) or from parliamentarians (it will then be a proposal for revision).

Then, each assembly must adopt the project or the proposal, in identical terms. At this stage, it should be emphasized that unlike the classic vote of the law, the government can neither use article 49.3 nor give the last word to the National Assembly. It is therefore understandable that the Senate has the possibility, from this second phase, of preventing a constitutional revision.

If the wish for revision is adopted in identical terms, the referendum is the only possible way of definitive adoption concerning the proposals for revision. If it is a project, the President can also submit it to referendum or circumvent the path of direct democracy by bringing together the two assemblies in Congress which will have to adopt it by a majority of 3/5^e of the votes cast, i.e. a minimum of 555 favorable votes.

This procedure therefore allows the Senate to block constitutional revisions, which it has done again recently in rewriting the draft revision of article 1^er of the Constitution which was intended to introduce the protection of the environment and the fight against global warming among the ranks of republican principles or even by refusing in 2016 the presidential project of the deprivation of nationality.

In view of his powers mentioned above, its political composition and the results of the legislative elections, the Senate will undoubtedly have a clearly decisive role.

If the LR lose many seats in the National Assembly, they are nonetheless courted by the presidential majority as demonstrated by the media release of Bruno Rétailleau. The Upper Chamber, with its 146 senators and its president Gérard Larcher could very well be called upon to play a key role in the subsequent negotiations.

From then on, a new period opened for the Senate in which its qualification as a point of equilibrium of the institutions once again took on its full meaning.

Forthcoming, The Senate of the Fifth Republic, a despised actor? Proceedings of the colloquium which was held at the Palais du Luxembourg, on October 21 and 22, 2022, Dir. Nathalie Droin et Aurora Granero, to be published by IFJD, Coll. Conferences and essays.

Aurora Granero, HDR lecturer in public law, University of Burgundy - UBFC

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.

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