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February 2011

 File n°34  

Parliament’s Right to Initiate Legislation

 

 

 

 

 

 

    Key Points

    The legislative process is based on the right to initiate legislation which may take two forms: the tabling of a complete bill (a Government bill, initiated, as its name suggests, by Government or a Member’s bill, initiated by a parliamentarian) or the tabling of an amendment, i.e. a proposal for the modification of a provision in either of the aforementioned types of bill.

    These two types of right to initiate legislation are shared by the Government and the members of the two assemblies. Nonetheless Parliament’s right to initiate legislation is subject to certain restrictions laid down by the Constitution.

See also files 30, 31, 32, 33, 38 and 39

 

    I. – THE EXERCISE OF PARLIAMENT’S RIGHT TO INITIATE LEGISLATION

    1. – Concurrent exercise

    According to article 39, paragraph 1 of the Constitution, “both the Prime Minister and Members of Parliament have the right to initiate legislation”. The Constitution lays down the principle of equality between the right of the Government and the right of Parliament to initiate legislation, even if other constitutional provisions set down restrictions which apply to bills that are initiated by Parliament.

    The only exceptions to this equality of the right to initiate legislation are those bills for which the Government possesses, de jure or de facto, a monopoly on tabling. This is, first of all, the case for finances bills and social security financing bills in accordance, respectively with articles 47 and 47-1 of the Constitution. It is also the case for programming laws as well as, following institutional logic, for laws enabling the Government to take ordinances for matters in the legislative field, and for laws authorizing the ratification or the acceptance of international treaties or agreements mentioned in article 53 of the Constitution, even if, in these last two categories, parliamentarians have the possibility, within certain conditions, of tabling amendments.

    The corollary of the right to initiate legislation, i.e. the right to withdraw legislation, is also open to the Government and to M.P.s. The methods of the application of this right are set down by article 84 of the Rules of Procedure of the National Assembly. The author, or if there are several, the first signatory of a Members’ bill may withdraw it at any moment, but only up to its adoption on first reading.

    2. – The methods of application of Parliament’s principle right to initiate legislation

    a) The Form of a Members’ Bill

    A Member’s bill has two main parts. The “presentation of the case” puts forward the arguments of the author to support the legislative modification or the new provisions which he proposes. The actual prescriptive part, referred to as the “main body” must be drafted in the form of articles.

    As for the content of a Member’s bill, it must correspond to the “legislative field”, i.e. to the area of legal matters which require being covered by a law. Article 34 of the Constitution lists the matters which fall within this field but several other constitutional articles make provision for coverage by the law (in particular those which refer to institutional acts) or imply it (by setting down principles of a constitutional value whose implementation depends on the legislator).

    b) The Conditions for the Application of Parliament’s Right to Initiate Legislation

    Although the financial admissibility of a Member’s bill is checked when it is tabled, there is no obligation for them to be submitted to the Conseil d’Etat, as there is for Government bills. The constitutional revision of July 23, 2008, nonetheless states that “the President of either House may submit a Private Member’s Bill tabled by a Member of the said House, before it is considered in committee, to the Conseil d’État for its opinion, unless the Member who tabled it disagrees”.

    In addition, Parliament’s right to initiate legislation belongs individually to each member of Parliament. It is a prerogative which is normally carried out individually, in their respective assembly, by each M.P. and by each Senator. However, nothing prevents several M.P.s, several Senators or even the members of one or several political groups from coming together to table a single Members' bill. In practice, the same legislative question is often dealt with, in more or less different terms, by several distinct Member’s bills.

    c) The Specific Case of Draft Resolutions

    - Resolutions are non-legislative instruments passed by a single parliamentary assembly. Six different types of draft resolutions can be listed:

    - Resolutions dealing with modifications in the Rules of Procedure ;

    - Resolutions dealing with the setting-up of a commission of inquiry;

    - Resolutions dealing with the suspension of proceedings against or the suspension of detention of a member of Parliament in accordance with article 26 of the Constitution;

    - Resolutions dealing with the indictment of the President of the Republic before the High Court of Justice in accordance with articles 67 and 68 of the Constitution (this is the only draft resolution which must be passed in identical terms by the two assemblies);

    - European resolutions dealing with drafts of or proposals for acts of the European Communities and of the European Union submitted in accordance with article 88-4 of the Constitution as well as with any document issuing from a European Union Institution;

    - Resolutions tabled in accordance with article 34-1 of the Constitution which propose that the Assembly provides an opinion on a specific question. This new procedure was introduced by the constitutional revision of July 23, 2008.

    - The procedure for the passing of draft resolutions is identical within each of the two assemblies, to that applied to Members' bills, with the exception of draft European resolutions for which examination in plenary sitting is not systematic. A specific procedure is also applied to draft resolutions tabled in accordance with article 34-1 of the Constitution: the Government may, in particular, declare them inadmissible if it considers that their adoption or rejection would entail an issue of confidence or that they contain an injunction to it.

    d) Parliament’s and Government’s Right to Initiate Legislation: What Is the Balance?

    The legislative procedure is more often initiated by Government than by Parliament, even though the latter has begun to do so more frequently since the introduction, in October 1995, of monthly sittings given over to a priority agenda set by the National Assembly and, as of 2009, of an agenda shared between each assembly and the Executive.

    Significant reforms are, most often, carried out through Government bills but they are not, nonetheless, born ex nihilo. The bill from which they spring will, sometimes, have been preceded by, modelled upon and inspired by, other attempts, in the form of Members' bills or amendments presented during previous discussions. A bill may also appear to be the end-product of a maturing process. So, if the “formal” initiative often comes from the Government, the inspiration which is at the basis of the reform may nonetheless often be shared.

    Although the laws are, most often, initiated by Government (between 80 and 90% of the laws passed), their texts may include a more or less significant degree of modification which is initiated by Parliament. Thus the right to make amendments re-establishes a certain balance to which statistical analysis does not entirely do justice. In addition, since March 2009 and as a follow-up to the constitutional revision of July 23, 2008, the discussion of Government bills in plenary sitting deals, generally speaking, with the text which is passed in committee. This had already been the case since 1958 for Members’ bills and it certainly increases the influence of parliamentary initiative on the content of the legislation passed by Parliament.

    3. – The right of amendment or the derived parliamentary right to initiate legislation

    The right of amendment, i.e. the right to present modifications to the provisions of Government and Members' bills, is also recognized equally for parliamentarians and for Government. Article 44, paragraph 1 of the Constitution states, in fact, that “members of Parliament and the Government shall have the right of amendment”.

    The right of amendment includes not only the possibility of proposing the suppression, complete or partial, or the modification, general or specific, of articles of a Government or Member’s bill, but also that of adding new provisions to the bill in the form of amendments introducing additional articles.

    The Constitution, the Institutional Act of April 15, 2009 concerning the application of articles 34-1, 39 and 44 of the Constitution and the Rules of Procedure of the National Assembly set down the conditions in which the right to amendment may be used:

    - Amendments must be presented in writing and accompanied by a brief explanation of their grounds. They may only deal with one article;

    - They are subject to a time limit for tabling (generally speaking they must be presented to the Table Office at the latest, by 5pm, on the third working day before the consideration of the bill);

    - They may be subject to prior assessment by the Committee for the Assessment and Monitoring of Public Policies upon their author’s request and with the agreement of the lead committee;

    - They are admissible, on first reading, if they have a link, even an indirect one, with the bill being discussed. The existence of such a link shall be judged by the President;

    - After the first reading, the rule of the “funnel” shall be applied : amendments must have a direct connection with a provision which is still being considered. The only exceptions to this rule are for amendments aiming at ensuring the respect of the Constitution, at implementing coordination with bills being discussed or at correcting a mistake.

    II. – RESTRICTIONS OF A GENERAL NATURE ON PARLIAMENT’S RIGHT TO INITIATE LEGISLATION

    The bills and amendments put forward by members of Parliament are submitted to two restrictions of a general nature: financial inadmissibility (article 40 of the Constitution and legislative inadmissibility (article 41 of the Constitution). The conditions of the application of these provisions during the legislative process have important differences.

    1. – Financial inadmissibility

    In accordance with article 40 of the Constitution, legislation initiated by parliament “are not admissible where their adoption would have as a consequence either a diminution of public resources or the creation or increase of an item of public expenditure”.

    In addition, the final paragraph of article 47 of the law of August 1, 2001, which applies to all amendments whatever the bill they are made to, renders inadmissible the amendments which are not in conformity to the institutional rules concerning the finance acts, and in particular the exclusive power of the finance acts to govern certain matters only.

    Similarly, article LO 111-7 of the Social Security Code makes provision for the inadmissibility of amendments that are contrary to the provisions of the institutional law concerning the social security financing acts.

    Initiatives tabled by M.P.s are submitted, at the time of their tabling, to an automatic monitoring of their financial inadmissibility, which is carried out by various bodies of the National Assembly.

    The Members' bills are transmitted, in accordance with article 89 of the Rules of Procedure, to a sub-committee of the Bureau of the assembly. This sub-committee refuses the tabling of those Members' bills which are inadmissible.

    It is necessary to distinguish, as far as amendments are concerned, between those tabled in committee and those in plenary sitting.

    In the former case, it is the task of the chairman of the committee and, in case of doubt, the committee’s bureau, to decide on the admissibility of an amendment as regards article 40 of the Constitution. This may be done, if necessary, after consultation with the Chairman or the General Rapporteur of the Finance Committee. The amendments which are declared inadmissible are not considered by the committee. The Government or an M.P. may, at any time, invoke article 40 of the Constitution concerning a modification brought by a committee to the text of a Government or Member’s bill, i.e. concerning an amendment adopted by a committee and introduced into a bill which will serve as the basis for the consideration in plenary sitting. Inadmissibility will be judged by the Chairman or the General Rapporteur of the Finance Committee.

    In the case of tabled amendments concerning consideration in plenary sitting, it is the President of the National Assembly who is responsible for deciding on their financial admissibility. However, it is common practice for the President to almost always follow the advice of the Chairman of the Finance Committee or, failing that, of the General Rapporteur or of a member of the bureau of the Finance Committee appointed for that reason (article 98, paragraph 6 of the Rules of Procedure makes provision for this consultation “in the case of doubt”). All disputed amendments are thus sent, upon being recorded, to the Chairman of the Finance Committee, and his opinion plays a decisive role. When that opinion is that the amendment is inadmissible, the amendment is returned to the author. It is not even distributed and will not be called during the discussion.

    This monitoring procedure does not mean that financial inadmissibility can not be applied later on to Members' bills and to amendments. This possibility, provided for by article 89, paragraph 4 of the Rules of Procedure, is granted to both the Government and to every M.P. In practice, at least for the amendments, such an objection is rarely made at this stage since the first verification, at the time of tabling, should have automatically eliminated all initiatives entailing inadmissibility.

    Financial inadmissibility can however be objected to amendments which have been distributed. In this case, the judgement on admissibility is made in the same conditions as during the tabling, i.e. upon a decision of the President of the National Assembly made after consulting with the Chairman of the Finance Committee. Given the systematic examination of the financial admissibility of amendments upon their tabling, there is no real need for a new consultation, except in exceptional cases. This would be the case, for example, if the discussion were to bring to light a new fact which would call into question the opinion formulated concerning financial admissibility at the time of tabling.

    It should be noted that the monitoring procedure on financial admissibility, set up by the Rules of Procedure, grants only parliamentary bodies the right to make decisions on questions of admissibility during the legislative procedure. In the case of a dispute on the admissibility of an amendment, in particular when the Government contests the admissibility stated by the relevant parliamentary authority, it is the decision of the latter which has primacy, without appeal, at this stage, over an external judge, as is the case in matters concerning “legislative” admissibility.

    Decisions by parliamentary authorities in the field of financial admissibility can only be contested through the avenue of appeal to the Constitutional Council, in accordance with article 61, paragraph 2 of the Constitution, after passing of the law. The Constitutional Council has the power to judge if article 40 of the Constitution has been correctly applied in the course of the legislative procedure, whether it be in the case of decisions of financial admissibility or inadmissibility. In the latter case, however, the Constitutional Council considers that a matter may only be referred to it if the objection of admissibility has been raised before the Parliament.

    2. – Legislative Inadmissibility

    Article 41 of the Constitution provides that “if, during the legislative process, it appears that a Private Member’s Bill or amendment is not a matter for statute…the Government or the President of the House concerned, may argue that it is inadmissible”. In the event of a disagreement between them, “the Constitutional Council, at the request of one or the other, shall give its ruling within eight days”.

    A major difference between this procedure and that aimed at ensuring the respect of article 40 of the Constitution is that legislative admissibility is not systematically monitored at the time of the tabling of Members' bill or amendments. In fact , it requires the intervention of the Government or of the President of the National Assembly. This mechanism was originally aimed at protecting the field of matters for regulation, as set out in article 37, paragraph one of the Constitution and could only be applied, until 2009 by the Government alone. The constitutional revision of July 23, 2008, extended this possibility to the Presidents of the assemblies who can now, not only apply inadmissibility to the encroachment of the legislative field on the regulatory field through the bills and amendments of their colleagues but can also do the same to Government amendments.

    - In implementing article 41 of the Constitution, article 93 of the Rules of Procedure of the National Assembly thus sets down that the inadmissibility of a Member’s bill or of an amendment may be claimed at any time by either the President of the Assembly or by the Government. It also states that an amendment which takes the form of a provision of the bill resulting from the work in committee may also be subject to such a claim. The second and third paragraphs of article 93 respectively deal with the case of inadmissibility claimed by the Government and that claimed by the President of the National Assembly. If inadmissibility is claimed by the Government, it is the task of the President of the National Assembly to decide. If the President of the National Assembly is in disagreement with the Government, he refers the matter to the Constitutional Council. If inadmissibility is claimed by the President of the National Assembly, he must consult the Government and if the two do not agree, then the President of the National Assembly refers the matter to the Constitutional Council. In cases where the President of the National Assembly considers claiming inadmissibility or must make a decision on inadmissibility claimed by the Government, provision is made for him to consult the Chairman of the Law Committee or a member of the bureau of this committee appointed for this reason.

    In practice, the handling of legislative inadmissibility is, generally speaking, quite heavy and so its use has become quite rare. The last decision of the Constitutional Council taken in accordance with article 41 goes back as far as 1979 (decision n°79-11 FNR of May 23, 1979). The wording of article 93 of the Rules of Procedure of the National Assembly before the reform of May 27, 2009, provided for the suspension of the sitting or an automatic deferment in the case of the claiming of legislative inadmissibility when the President of the National Assembly was not chairing the sitting. The current wording renders such deferment or suspension optional and may make the claiming of inadmissibility based on article 41 of the Constitution, easier and a more frequent occurrence.