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February 2011

 File n°3 

The Government

 

 

 

 

 

 

    Key Points

    The Government is led by the Prime Minister. It is appointed by the President of the Republic and it represents the second half of the twin-headed executive set up by the 1958 Constitution.

    It is made up of ministers and secretaries of state who are appointed by the President of the Republic upon a proposal of the Prime Minister.

    The Constitution entrusts it with determining and conducting the policy of the Nation.

    It is headed by the Prime Minister who holds regulatory power. He also plays a central role in the legislative procedure as he has the right to initiate bills and control over part of the parliamentary agenda. He may be empowered by Parliament to legislate by means of ordinances.

See also files 1, 2, 4, 5, 6, 25, 26, 27, 28, 32, 33, 40, 41, 46, 47, 52 and 53

 

    I. – SETTING-UP AND RESIGNATION OF GOVERNMENT

    1. – The establishment of the Government

    The choice of the Prime Minister is a prerogative of the President of the Republic alone. Article 8 of the Constitution provides however that the appointment of ministers is carried out by the head of state upon a proposal of the Prime Minister.

    Although such choices are not regulated by any conditions (e.g. there is no obligation for the Prime Minister or the other ministers to be parliamentarians) the correct working of the institutions and democratic practice do oblige the President of the Republic to choose a Prime Minister representing the majority in Parliament.

    2. – Government resignation

    Article 8 of the Constitution states that the President of the Republic shall terminate the appointment of the Prime Minister when the latter tenders the resignation of the Government.

    Such a resignation may come about:

    - As the result of a vote of no-confidence by the National Assembly on the Government’s programme or on a statement of its general policy (in accordance with article 49, paragraph 1 of the Constitution – such a case has not, as yet, occurred) or of the adoption of a censure motion (in application of article 49, paragraph 2 of the Constitution. This procedure was in fact used in 1962);

    - Systematically (following a presidential election);

    - Voluntarily (in the wake of general elections or as a means of carrying out a large-scale ministerial reshuffle without actually changing the Prime Minister);

    - By obligation, and thus tantamount to dismissal by the President of the Republic.

      The office of the other members of the Government comes to an end:

    - If the Government’s resignation is tendered by the Prime Minister;

    - If the President of the Republic announces their “dismissal” upon a proposal of the Prime Minister;

    - If an individual resigns.

    II. – THE STATUS OF MEMBERS OF THE GOVERNMENT

    1. – Rank

    The Government is made up of the Prime Minister and ministers.

    Among the ministers, several categories can be listed:

    - Ministers of State. This is an honorary title given generally to the heads of the main parties or movements within the governing majority. It provides them with precedence over “ordinary” ministers, from a protocol point of view. Nowadays they always head a ministerial department (the title of Minister of State Without Portfolio has now disappeared);

    - Ministers. They head the administration placed under their authority but do not hold regulatory power (this is solely in the hands of the Prime Minister), except in order to take measures necessary for the correct operation of their departments;

    - Associate ministers. They report either to the Prime Minister or to other ministers;

    - Secretaries of State. They may either be autonomous (and thus have their own budget, power of countersignature and authority over their departments) or report to another minister. Generally speaking they do not attend the Council of Ministers.

    - Certain governments have also included high commissioners.

    - There is no limit on the number of members of the Government.

    2. – Obligations and incompatibilites

    Members of Government must, in the two months following their appointment, make a declaration of their estate to the Chairman of the Committee for Financial Transparency in Political Life. They must make a similar declaration within the two months following the end of their ministerial office.

    In addition ministerial office is considered incompatible with various other activities:

    - In accordance with the principle of the separation of powers, a member of the Government may not simultaneously be a parliamentarian. Such incompatibility only takes effect one month after the appointment of an M.P. or a Senator to the Government. During this interim, the parliamentarian may not take part in votes but he remains, at least formally, a member of the bodies of the assembly in which he sat prior to his appointment to Government. At the end of this one-month period, the President of the National Assembly formally records the replacement of the minister by the “person elected at the same time as him for that purpose”, i.e. his substitute whose name is communicated beforehand by the Home Office. The new wording of the second paragraph of article 25 of the Constitution set down in July 2008 provides that, according to the conditions laid down in an Institutional Act (Institutional Act no. 2009-38 of January 13, 2009), this replacement is of a temporary nature. It shall elapse at the end of a one-month period following the withdrawal of the minister from office. During this time the former minister may not give up his seat in favour of his substitute. Unless he resigns and thus triggers a by-election, he will thus by definition retake his seat.

    - A member of Government may not hold a job as a public servant (civil servants entering Government are thus given the status of being “on secondment”) or as a private sector professional (including the liberal professions). It is also impossible to combine governmental offices with the position of being a representative of a professional body (including the Economic, Social and Environmental Council).

    3. – Individual liability

    - Political Liability

      Each member of the Government is politically liable for the actions of his administration. The non-fulfilment of this responsibility may lead to dismissal or resignation.

    - Criminal Liability

      Ministers and secretaries of state are likewise criminally liable for all acts carried out in the exercise of their office if such acts are defined as crimes or offences at the moment they were committed. They are tried by the Court of Justice of the Republic which was set up in 1993 and is made up of 12 parliamentarians (6 M.P.s and 6 Senators) and three judges of the Court of Cassation (one of whom presides over the Court).

    III. – THE PRIME MINISTER

    1. – Leadership of the Government

    The Prime Minister directs the actions of the Government (article 21 of the Constitution).

    He thus personifies and represents the Government and speaks on its behalf (during the presentation of its programme or the seeking of confidence for its policies in Parliament in particular).

    He carries political authority over the members of the Government. This is particularly displayed through his power of coordination of Government action and through his power of arbitration in the case of disputes between ministers. He chairs interministerial committees.

    He is assisted in the carrying out of his office by his staff and by the General Secretariat of the Government (a body which in particular, is in charge of preparing, along with the General Secretariat of the Presidency of the Republic, the agenda for the Council of Ministers and of listing its decisions. The General Secretariat of the Government also refers bills submitted to the Council of Ministers for advice to the Conseil d’État, seeks the signature of the Prime Minister on the presentation decrees for bills, follows the legislative procedure, promulgates the laws which have been passed and publishes the statutory texts which have been adopted as well as organizing interministerial meetings.

    2. – The power to make regulations

    The Prime Minister has the power to make regulations and to make appointments to civil and military posts (article 21 of the Constitution). It is thus his responsibility to make the regulations necessary to implement the laws. These regulations are, if need be, countersigned by the minister or ministers in charge of their application.

    These powers to make regulations and appointments are nonetheless shared with the President of the Republic in the case of decrees and nominations to very high posts in the Council of Ministers. They may be delegated to ministers but the latter do not possess such powers for themselves, having only the power of administration over their own ministerial department.

    3. – The role of the Prime Minister in the legislative procedure

    The Prime Minister plays an important role in the legislative procedure.

    This is the case, first of all, because he is the only person in the executive branch to have the power to initiate laws.

    Secondly because he is very much in charge of the running of the procedure: he chooses the assembly before which the bill will be introduced, he has control over part of the agenda of Parliament, he chooses the amendments to be tabled in the name of the Government, and he may decide to opt for certain procedures (accelerated procedure, convening of a joint committee, forced vote etc.). It should be noted however that in the course of the discussion of a bill, some of these powers may be carried out by the minister directly concerned (right of amendment, forced vote).

    4. – Other powers

    In addition to the aforementioned powers, the main power of the Prime Minister is the fact that he must countersign the acts of the President of the Republic (with the notable exception of a recourse to a legislative referendum, the decision to dissolve the National Assembly, a recourse to the emergency powers provided by article 16, as well as appointments to the Constitutional Council and to the High Council of the Judiciary).

    - The other individual powers

    - The Prime Minister may, without consulting the Council of Ministers:

        • Refer, before their promulgation, laws to the Constitutional Council (article 61 of the Constitution) as well as international commitments (article 54);

        • Request the agreement of the Senate on a statement of general policy (article 49, paragraph 4);

        • Decide, after consulting the President of the assembly in question, to have one of the two the assemblies sit for more than 120 days during the same ordinary session (article28, paragraph 3);

        • Request the President of the Republic to convene Parliament in extraordinary session (article 29, paragraph 1);

        • Request the President of the Republic to take the initiative of a revision of the Constitution (article 89);

        • Provide the head of state with his opinion concerning a possible dissolution of the National Assembly and recourse to the use of the emergency powers of article 16.

      In exceptional circumstances the Prime Minister may replace the President of the Republic in presiding over the Council of Ministers.

    - The other powers shared with the President of the Republic

    - Most of the powers shared by the two heads of the executive have already been described (appointment of the members of Government, the power to make regulations and appointments to civilian and military posts). The only powers remaining to be described are those in the field of defence matters – the Constitution makes the President of the Republic the Commander-in-chief of the Armed Forces but grants the Prime Minister the responsibility for national defence.

    IV. – THE POWERS OF THE GOVERNMENT

    1. – The conduct of the policy of the nation

    Article 20 of the Constitution provides the Government with the responsibility of “determining and conducting the policy of the Nation”. In practice, as the main decisions are taken in the Council of Ministers, this governmental power is, in fact, shared with the President of the Republic, when the Prime Minister belongs to the same political family.

    2. – The exercise of legislative power by delegation

    The Constitution allows Parliament to delegate its legislative power to the Government by means of ordinances.

    There are several types of ordinance:

    - Ordinances taken according to article 38 of the Constitution which allow the Government “in order to carry out its programme, to ask Parliament for the authorization, for a limited period, to take measures by ordinance that are normally a matter for statute”, (recourse to ordinance is impossible for provisions which fall within the ambit of the Constitution or institutional acts).

      Thus, the Government must, first of all, have tabled a draft enabling law before Parliament describing the measures envisaged and the length of the delegation of power. Once the law has been passed the ordinances are submitted to a double procedural constraint:

      § They must be examined for consultation by the Conseil d’État;

      § They must be adopted by the Council of Ministers. This requires the signature of the President of the Republic (who can refuse, as he has done during periods of cohabitation).

      Before the end of the enabling period, a draft ratification bill must be tabled before Parliament. Ratification may only be carried out in explicit terms.

    - Ordinances taken in accordance with articles 47 and 47-1 of the Constitution. These deal with the case of Parliament not respecting the time limits imposed for the adoption of the finance bill or the social security financing bill. This procedure has never been applied.

    - Ordinances taken in accordance with article 74-1 of the Constitution. These represent the sole permanent delegation of legislative power. These allow the Government, in a variety of circumstances, to extend and at the same time adapt, the law of continental France to its overseas territorial units

    3. – Extraordinary powers in matters of breaches of the peace

    - State of Siege

      This is provided for by article 36 of the Constitution and deals especially with situations linked to war and insurrection. It has never been applied during the Fifth Republic particularly because the emergency powers granted to the President of the Republic under article 16 of the Constitution have largely taken away its need. The state of siege must be decreed by the Council of Ministers and its extension beyond twelve days requires the authorization of Parliament. It is characterized by a transfer from civilian authority to military authority.

    - State of Emergency

      This is provided for by law no. 55-385 of April 3, 1955 and deals with “the imminent danger of serious breaches of the peace or events which might lead to very grave circumstances”. As with the state of siege, the state of emergency is decreed by the Council of Ministers and its extension beyond 12 days must be authorized by Parliament. It was used in New Caledonia in 1985 and in continental France in order to deal with the troubles in the suburbs in 2005.