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Government’s Right to Initiate Legislation
Although the right to initiate legislation is held by both parliamentarians and the Prime Minister, more than 90% of the laws passed in France are initiated by Government (this figures drops to 80% when the laws authorizing the ratification or acceptance of international commitments, are included).
This fact, which is a reflection of the primacy of the executive in the institutions of the Fifth Republic, is not limited to France. The introduction, through the constitutional reform of July 23, 2008, of a shared agenda could, in the future, facilitate the passing of a greater number of Members’ bills.
I. – THE DRAWING-UP OF A DRAFT BILL
1. – The arbitration phase
To begin with, the departments and the staff of the relevant minister draw up a draft bill which must meet with the approval of all the ministers concerned.
In order to do this, interministerial meetings are held. These are chaired by a member of the Prime Minister’s staff and are attended by representatives of the ministers concerned.
In the case of a disagreement, the Prime Minister makes a ruling. The secretariat of these meetings (from the invitations to attend to the distribution of the minutes) is carried out by the General Secretariat of the Government. More than one thousand such meetings take place every year.
2. – The consultation phase
The Government may request the opinion of the Economic, Social and Environmental Council on a bill.
In addition, the advice of various institutions is required for certain specific bills by the Constitution or by the law. Some examples are:
- The opinion of the Economic, Social and Environmental Council on draft programming bills of an economic, social or environmental nature;
- The opinion of the territorial assemblies of overseas units with a special status, on bills concerning them;
- The opinion of the Committee on Local Finances on bills dealing with the resources of territorial units.
- All such official consultations are reported in the impact study which accompanies the bill.
3. – Impact studies
In accordance with article 39 of the Constitution, after the constitutional reform of July 23, 2008, every draft bill is presented before the Conseil d’État for its opinion. An institutional act shall determine the conditions in which Government bills are tabled before the parliamentary assemblies.
In addition, the Institutional Act n°2009-403 of April 15, 2009, states that Government bills, upon their transmission to the Conseil d’Etat, shall be preceded by a presentation explaining their objectives and accompanied by an impact study. This impact study lays down in detail how the bill fits into European law and it sets down the mechanisms envisaged for its application, its economic, financial, social and environmental consequences, as well as its effect on public employment. It also explains the conditions which will apply to its implementation in the overseas territorial units.
Although the aforementioned procedure of preliminary assessment is the rule, the institutional law does make provision for unusual situations and for bills of a very specific type. Certain bills, (constitutional bills, finance bills, social security financing bills, programming bills, bills concerning a state of crisis) are not subject to the rule concerning the presentation of a preliminary assessment. In fact, in the case of Government bills authorizing the ratification of a treaty as well as bills enabling the Government to enact ordinances, adapted assessments must be provided.
Article 39 of the Constitution provides the Conferences of Presidents of the assemblies with the possibility of opposing the inclusion on the agenda of a bill which does not comply with the conditions determined by the institutional act. In the case of a disagreement between the Conference of Presidents of the relevant assembly and the Government, the Constitutional Council will make a decision.
4. – Examination of the bill by the Conseil d’État
a) The Procedure
The Conseil d’État is both the highest administrative court and the legal adviser to the Government. It is in this second role that it is automatically consulted by the Government on bills in accordance with article 39 of the Constitution.
The bill is transmitted to it by the General Secretariat of the Government. The Conseil d’État passes it on to one of its five administrative sections (Interior section, Finance Section, Public Works Section, Social Section and Administration Section) whose President appoints one or several rapporteurs.
Using the Government draft bill as a basis, the rapporteur draws up his own bill. It is this bill which is debated by the relevant section.
The rapporteur’s bill is examined by the section in the presence of Government commissioners who are the representatives of the administration. The bill is first examined in its entirety and then article by article. The bill which emerges from this examination is, in turn, submitted to the general assembly of the Conseil d’État following the same procedure. It is then the task of the section rapporteur to defend the bill which emerged from the section stage, before the assembly.
This examination leads to the adoption by the general assembly of a definitive bill which represents the ‘opinion’ the Conseil d’État gives to the Government. The general assembly may also reject the bill. This opinion, which is not binding on the Government, is reserved for its use only. The Government may, nonetheless, transmit it unofficially to the rapporteurs of the bill at the National Assembly or the Senate, so as to allow them to better understand the intentions of the bill’s author. The Government may also choose to make this opinion public.
For the opinion of the Conseil d’État to enlighten the Government, it is necessary that all the questions posed by the bill which is in the end submitted to the Council of Ministers, be, first of all, examined by the Conseil d’État. If the Government introduces new provisions between the examination by the Conseil d’État and that by the Council of Ministers, these provisions, once they have been passed by Parliament, will risk censure by the Constitutional Council for non-compliance with the consultation procedure of the Conseil d’État provided for in article 39 of the Constitution (Constitutional Council, decision n° 2003-468 DC of April 3, 2003).
An emergency procedure may also be implemented. In this case, the standing committee of the Conseil d’État examines the bill which has been submitted by the rapporteur without any prior examination in section. The use of this procedure is rarer.
b) The Field of Contribution
The examination of the bill by the Conseil d’État, deals with both content and form.
As regards the form, the Conseil d’État checks the structure of the bill, its compatibility with existing law and the respect of the rules of procedure.
As regards the content, the Conseil d’État examines the foreseeable effects of the bill in comparison with its aims.
Examination of the bill by the Conseil d’État limits the risk of a partial or complete annulment by the Constitutional Council if the bill is referred to it after the vote by Parliament. The Conseil d’État in fact examines the compatibility of the bill with the Constitution. It also checks that the bill meets the international conventions to which France is party as well as European Union law.
The Government is not bound by this opinion, but ignoring it has real risks for it.
II. – THE ADOPTION OF THE BILL BY THE COUNCIL OF MINISTERS AND ITS TABLING BEFORE ONE OF THE ASSEMBLIES
The draft bill which emerges from the Conseil d’État is examined by the Council of Ministers and then becomes a bill in the strict meaning of the term. Generally, the bill is no longer modified at this stage.
The bill is then tabled before one of the two assemblies, i.e. transmitted by the General Secretariat of the Government to the Table Office of the assembly concerned. In concrete terms, since 2008, this transmission is carried out electronically as the bill is sent by electronic mail.
The choice of the assembly where the bill is tabled is free (except for finance bills and social security financing bills which must, first of all, be examined by the National Assembly and for bills whose main aim is the organization of the territorial units which go for consideration, in the first place, to the Senate).
The bill is made up of three elements:
- The presentation of the case which explains the reason for the bill and its aims. This may contain a short explanation of each article;
- The “main body” which is the part of the bill put to a vote before the assemblies. In the case of framework laws and programme laws, it is supplemented by explanatory annexes.
- The impact study.
- The bill is accompanied by a presentation decree to Parliament which states the bodies which have deliberated on it, determines the assembly before which the bill will be first tabled and appoints the members of Government who will support the bill before the two assemblies. This decree is signed by the Prime Minister and countersigned by the ministers so appointed. At this stage the Government can no longer modify the bill except by a “corrective letter”. This customary procedure which is not provided for in any law, takes the form of a letter from the Prime Minister, directly correcting the content of a bill which has been previously tabled. This “corrective letter” is transmitted, like the bill, to the Conseil d’Etat. It leads to the reworking of the bill which will serve as the basis for parliamentary discussion.
III. – THE RIGHT OF AMENDMENT
According to article 44 of the Constitution, the Government, as well as parliamentarians, has the right of amendment. This was an innovation introduced by the 1958 Constitution and is a corollary of the incompatibility of office of a member of Government and a parliamentarian.
Nonetheless, the Government, like the lead committee, is exonerated from the tabling time limits which apply to the amendments made by members of the assemblies. However, in the case of tabling outside of the said time limits, such limits cannot be applied to amendments to articles on which the Government or the lead committee has brought at least one amendment or to those which are liable to be jointly discussed with amendments introducing additional articles tabled by the same authors. Such time limits do not apply however to the tabling of sub-amendments.
In addition, contrary to the right of amendments of a parliamentarian, the right of amendments held by Government is not submitted to article 40 of the Constitution which only deals with parliamentary initiatives. However, the Government must respect the other conditions concerning the use of the right of amendment set down by the Institutional Act of April 15, 2009. These include a written presentation and a summary of the objectives. Similarly, the President of one of the two assemblies could object to a Government bill on the grounds of article 41 of the Constitution. This provision aims at excluding from debate all subjects which are not matters for statute. In the case of a disagreement between the President of the relevant assembly and the Government, the Constitutional Council will make a decision.