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The Rules of Procedure of the National Assembly
The Rules of Procedure of the National Assembly were adopted on June 3, 1959 and were recognized as compliant with the Constitution by a decision of the Constitutional Council on July 24, 1959. They constitute one of the key sources of parliamentary law, although their importance was nonetheless reduced in 1958. The mode of adoption and modification of the Rules of Procedure, the content and the way in which they are applied, all display important characteristics which are vital to the understanding of the position and role of Parliament in the institutions of the Fifth republic.
I. – THE RULES OF PROCEDURE OF THE NATIONAL ASSEMBLY, A SOURCE OF PARLIAMENTARY LAW
In his treatise on political, electoral and parliamentary law, Eugène Pierre wrote: “Outwardly, the Rules of Procedure merely represent the internal law of the assemblies, a collection of instructions designed to apply a methodological approach to the running of a meeting where many contradictory aspirations meet and clash. . In reality, they are a formidable weapon in the hands of the parties. The Rules of Procedure often have more influence than the Constitution itself on the course of public matters”. This statement, which was made during the Third republic, continued to be valid during the Fourth republic but could, no longer, be made today. This is due to the fact that the Constituent of 1958 sought to protect itself from the excesses of parliamentarianism observed during the preceding regimes.
Thus, though the Rules of Procedure remain one of the sources of parliamentary law whose legal nature should be detailed, it is nonetheless a source which is limited and monitored.
1. – The legal nature of the Rules of Procedure of the National Assembly
As Paul Bastid emphasized in 1954, “the Rules of Procedure are the internal laws of each chamber, laid down by themselves. The Chamber in establishing its Rules of Procedure acts not as a branch of the legislative power but as an autonomous corporation possessing the power of organization and wielding disciplinary authority over its members”.
The Rules of Procedure are part of the legal category of measures of an internal nature, i.e. the validity of the rules it lays down is limited to their internal application.
As regards the position of the Rules of Procedure in the hierarchy of legal norms, the Constitutional Council has continued to judge that the provisions of the Rules of Procedure do not have a Constitutional status. This means notably that the simple lack of knowledge of the Rules of Procedure could not, in itself, be cited in support of an appeal to the Constitutional Council.
Certain provisions of the Rules of Procedure however represent constitutional obligations and could as such not be ignored without calling into question the legality of the legislative procedure. In addition, the Constitution refers directly to the Rules of Procedure of the assemblies. This has been the case, since the constitutional revision of July 23, 2008 of articles 44 (the right of amendment may be used in plenary sitting or in committee under the conditions set down by the Rules of Procedure of the Houses, according to the framework determined by an Institutional Act), 51-1 (the Rules of Procedure of each House shall determine the rights of the parliamentary groups. They shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights), or 51-2 (the conditions for the setting-up of commissions of inquiry are determined by the Rules of Procedure of each assembly).
2. – A highly regulated and monitored source
According to article 61 of the Constitution, the Rules of Procedure of the parliamentary assemblies must be compliant with the Constitution.
This detail marks a break with French constitutional tradition which, in accordance with the principle of the autonomy of the parliamentary assemblies, provided the assemblies with exclusive jurisdiction over their own Rules of Procedure. Michel Debré accepts this change in his memoirs: “The monitoring of the Rules of Procedure of the assemblies is a vital measure...my experience allowed me to notice to what extent the Rules of Procedure add to the Constitution and in a way which is often detrimental for governmental authority and for the value of legislative work”. It was for this reason, he wrote that “a final precaution was taken. The Rules of Procedure of the parliamentary assemblies, before their implementation, will be submitted to the Constitutional Council which will thus have the power to strike out the articles which are contrary to fundamental law and its spirit”.
Henceforth, as Jean Gicquel writes, “the assemblies are no longer masters of their own households”.
The texts which regulate the Rules of Procedure of the assemblies are both numerous and important as regards their contents.
The Constitutional Council thus decided that this requirement of compliance should be extended to the provisions of institutional acts concerning Parliament which were passed in application of the Constitution. In fact, the vast majority of such laws were decided upon by edict in the four months following the promulgation of the Constitution. They are innumerable and concern such important fields as the length of the powers of each assembly, the number of their members, their allowances, the conditions of eligibility and ineligibility as well as incompatibility, the conditions for the election of those replacing M.P.s in the case of a seat being made vacant, the regulation of proxy voting or the vote on the finance bill. The Institutional Act of April 15, 2009, deals, amongst other things, with the conditions for tabling and the examination of amendments.
The Constitutional Council also decided that the Ordinance of November 17, 1958 concerning the working of the parliamentary assemblies, which has a simple legislative status, took primacy over the Rules of Procedure of the assemblies. This clarification is significant, as this text, in addition to the traditional provisions concerning the premises provided to the parliamentary assemblies, their financial autonomy or their civil liability, contains other rules concerning, for example, commissions of inquiry, parliamentary petitions and delegations or the consultation of the Conseil d’Etat on a Member’s bill. .
This obligatory, preliminary verification by the Constitutional Council was applied 69 times between 1959 and 2009. The main lines of jurisprudence were set down as early as the decisions concerning the definitive Rules of Procedure of the assemblies in the spring of 1959. As regards the extent of this monitoring, Pierre Avril and Jean Gicquel underline in their manual of parliamentary law that, “the jurisprudence of the Constitutional Council considers that the provisions of the Rules of Procedure which apply a constitutional rule must strictly respect the letter of that rule, without adding or subtracting anything, whilst those which are not, strictly speaking, in the field of constitutional provisions, must simply not enter into conflict with them.”
II. – MODES OF ADOPTION AND MODIFICATION
In this particular field, the initiative is strictly in the hands of the M.P.s in keeping with the principle of the autonomy of the parliamentary assemblies. In concrete terms, this means the tabling of a motion for resolution, which, to be admissible, must, according to article 82 of the Rules of Procedure of the National Assembly, “formulate internal measures or decisions which, since they have to do with the operation and discipline of the Assembly, are entirely within its jurisdiction.”
The procedure of examination of such a motion is the same as that applicable to Members’ bills on first reading. Once it has been tabled, the motion for resolution is examined by the Law Committee and adopted in plenary sitting.
The provisions of articles 34, 40 and 41 of the Constitution (financial inadmissibility and respect of matters for statute) are not applicable to such motions.
Since coming into force (which required three decisions of the Constitutional Council between May and July 1959), the Rules of Procedure of the National Assembly have been modified thirty-two times.
Among the most recent of these modifications, the most significant have been that of January 26, 1994 which aimed at improving legislative work by giving greater importance to the role of the standing committees, through the reduction of the role of the plenary sitting and the strengthening of the monitoring procedures. Also deserving mention is that of October 10, 1995 which implemented the consequences of the constitutional revision of August 1995 and that of October 3, 1996 which introduced clarifications regarding the laws governing the financing of the social security system and the monitoring powers of committees.
During the XIIth term of Parliament, we should mention the resolution of March 26, 2003 which allowed the Conference of Presidents, upon the proposal of the President of the National Assembly, to set up fact-finding missions and which recognized the opposition’s right to hold the position of rapporteur or chairman of a commission of inquiry set up on its own initiative.
The change of February 12, 2004 which provided for the presentation of a report on the implementation of laws six months after their entry on the statute book or on the application of the recommendations of committees of inquiry six months after the publication of their reports was also important. So too was that of June 7, 2006 which limited the length of time for the introduction of procedural motions and set the time limit for the tabling of amendments at 5pm the preceding day.
Most of the modifications of the Rules of Procedure deal only with a few articles. Only six motions have modified more than ten articles. These figures should be considered in the light of the changes carried out through the motion adopted on May 27, 2009. Nearly one hundred and fifty articles were modified, introduced or repealed at this time. This reform, which had no equivalent for over fifty years, implemented the Constitutional Act of July 23, 2008 and brought all the Rules of Procedure of the National Assembly up-to-date.
III. – THE CONTENT OF THE RULES OF PROCEDURE OF THE NATIONAL ASSEMBLY
Generally speaking, the Rules of Procedure of parliamentary assemblies are meant to organize the internal working of the assemblies, to set out the procedures of deliberation and to determine the disciplinary rules which apply to their members.
The Rules of Procedure of the National Assembly contain 200 articles set out in three sections.
Title 1 concerns the organization and the working of the National Assembly and contains provisions dealing with the Bureau, the Office of the President, the political groups, the committees, appointments, the Conference of Presidents, the agenda, the holding of plenary sittings, the methods of voting and discipline.
Title 2 deals with the legislative procedure and looks successively at, the ordinary legislative procedure, the legislative procedure to be applied to constitutional revisions, to finance bills and to bills governing the financing of the social security system (whose discussion still deals with the Government text or with the text transmitted by the other assembly) as well as special legislative procedures (referendum motions, consultations concerning overseas territories, motions dealing with membership of the European Union, institutional acts, international treaties and agreements, declarations of war and military interventions abroad).
Title 3 focuses on parliamentary monitoring and describes the information, assessment and supervision procedures (Government statements, questions, motions in accordance with article 34-1 of the Constitution, commissions of inquiry, budgetary monitoring, the commission of assessment and monitoring of public policies, European affairs), motions of confidence concerning Government accountability and the criminal liability of the President of the Republic and members of Government (the High Court of Justice and the Court of Justice of the Republic).
In accordance with its own articles 14 and 17, the Rules of Procedure of the National Assembly are specified and completed by the General Instruction of the Bureau.
IV. – THE APPLICATION OF THE RULES OF PROCEDURE OF THE NATIONAL ASSEMBLY
The President of the National Assembly applies the provisions of the Rules of Procedure. As Eugène Pierre explained in his aforementioned work, “it is the duty of the President of the National Assembly to interpret the texts and to apply them to the various situations which might arise”. In doing so, he often makes reference to previous practices (“precedent”). The M.P.s may, at any moment, call for the respect of the Rules of Procedure by asking a point of order.
1. – Precedent
It can happen that during a plenary session certain problems linked to the Rules of Procedure may arise. In this case, the President refers to a precedent in order to see how such a problem was dealt with in the past. The Table Office keeps an up-to-date record of such precedents. Reference to a precedent may be useful in avoiding having to improvise decisions in the heat of the action, but it is not obligatory. In fact, even if the precedent enables the definition of a well-established ‘jurisprudence’ in a particular case, the President is not obliged to follow it. He maintains, in all cases, total liberty of decision.
It should however be stated that, in practice, precedents play an important role in the application of the provisions of the Rules of Procedure.
2. – Points of order
The M.P.s may, at any time, make a point of order; they have five minutes to do this. They are given the floor either immediately or at the end of the speech taking place. These requests have priority over the main issue and can lead to a suspension of the discussion.
Points of order must concern the Rules of Procedure or the running of the sitting. They may not call the set agenda into question. If these rules are not respected the President may deprive the speaker of the right to speak.
Points of order are regulated by article 58 of the Rules of Procedure. It may happen that the President replies by stating that he will refer the matter to the Bureau or to the Conference of Presidents. In practice, points of order are often used to make reference to an event without any clear link to the discussion or in order to slow down a discussion. They can then appear to be a means of filibustering. They are in fact, a right which the President and vice-presidents must handle with much dexterity.
In the framework of the set time limit procedure, which is based on the overall allocation of a maximum speaking time to each of the political groups, the time spent on points of order is counted when the President considers that such points clearly have no link with the Rules of Procedure or the running of the sitting. Nonetheless in its decision of June 25, 2009, the Constitutional Council judges that “whilst the setting of time limits for the consideration of a bill in plenary sitting allows for the counting of the time spent particularly on requests for the adjournment of the sitting and on points of order, M.P.s may not be deprived of any possibility of calling upon the provisions of the Rules of Procedure so as to ask for the application of constitutional provisions”.
The functions of the