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February 2011

 File n°38 

The Use of the Right to Amend

 

 

 

 

 

 

    Key Points

    Nowadays, the right to amend is the main expression of the right of M.P.s to initiate legislation. Several thousand such amendments are tabled annually.

    Although this right, which M.P.s share with Government, is free and unlimited, it nonetheless must follow a series of constitutional, institutional and regulatory provisions which are based on the notion of “rationalized parliamentarianism”.

    The most important of these provisions deal with the financial admissibility (amendments are not admissible in cases 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) and the legislative admissibility (amendments must be matters for statute) of amendments.

    There are other additional restrictions, in particular those dealing with the time limits on tabling, on the link with the bill under discussion and on the prior examination by the lead committee.

    During the plenary sitting, the order in which amendments are called and the procedures concerning their discussion are strictly laid down in precise regulatory provisions which ensure that debates are organized in an orderly fashion and that all opinions are expressed.

See also files 32, 33, 34, 35, 36, 37 and 39

 

    The right to amend is the right to have the parliamentary assemblies vote on modifications to texts which they examine. These texts may be Government bills, Members' bills or draft resolutions. It may be regarded as an “extension” of the right to initiate legislation. Over time, it has even, in many Parliaments, and in particular in France, become the main form of expression of M.P.s right to initiate legislation.

    It has its basis in the first paragraph of article 44 of the Constitution which states that “Members of Parliament and the Government shall have the right of amendment”. Since the constitutional revision of July 2008, this article declares even more precisely that this right “may be used in plenary sitting or in committee”

    There are three main characteristics of the right to amend:

    - It is a right shared between Government and parliamentarians;

    - It is an individual or collective right (on the contrary of questions for example, amendments may be co-signed);

    - It is an unlimited right (subjects to limits laid down hereafter) which means that it may be used as a blocking tactic.

    - The general principle, which is laid down in article 45 of the Constitution, is that the right to amend can be freely used at the stage of the first reading of a bill: any amendment which, at this stage, has a link, even an indirect one, with the bill, is admissible. During the subsequent readings, amendments may only deal with provisions which are still in discussion and this thus excludes all amendments introducing new provisions. In addition, this right is set down in the Constitution which established its uses clearly in the context of “rationalized parliamentarianism”.

    I. – THE FRAMEWORK OF THE RIGHT TO AMEND

    The following rules are applicable to amendments and to sub-amendments alike. Nonetheless sub-amendments are not admissible when they contradict the meaning of the amendment or go beyond its scope. However the time limits concerning tabling do not apply to them.

    1. – The monitoring of the financial admissibility of amendments

    a) General Principles

    Article 40 of the Constitution states that amendments introduced by Members of Parliament shall not be 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. The wording of the article enables the introduction of an amendment which decreases a public resource as long as it is balanced by the increase in another public resource. However, it prohibits all compensation in the field of public expenditure.

    Constitutional jurisprudence has made the scope of financial inadmissibility clear. Thus a decision was taken that it not only applied to State expenditure but also to that of other public entities and that the effect of the proposed measures was to be judged in relation to the bill under examination and to existing law if it were to be more favourable.

    b) The Financial Admissibility of Amendments to Finance Bills and to Social Security Financing Bills

    The monitoring of the financial admissibility of amendments to finance bills and to social security financing bills follows certain specific rules:

    - The rules pertaining to the finance bills have been loosened up quite substantially since the examination of the 2006 Finance Bill, which was the first to be introduced in accordance with the institutional act of August 1, 2001 concerning finance laws.

    - This institutional act radically changed Parliament’s method of monitoring the budget. It replaced the former division of credits by ministry, by appropriation and by budgetary item with a system setting out around 50 State missions (including 10 interministerial missions) and within these around 170 programmes. Article 47 of the aforementioned institutional act states that the idea of public expenditure must be understood in the context of each mission and this now allows parliamentarians to propose, within the same mission, increases in the credits for one programme which will be balanced by a decrease in funding for another programme. In addition, parliamentarians may set up new programmes as long as they balance this increase by a decrease in the credits allocated to another programme in the same mission.

    - As for social security financing bills, paragraph IV of article L.O. 111-7-1 of the Social Security Code states that, as far as amendments dealing with the expenditure targets included in the finance act are concerned, the expenditure refers to each expenditure target per branch or to the National Health Insurance Expenditure Target (ONDAM).

      This recent easing of the rules, introduced by the institutional act of August 2, 2005, enables parliamentarians to carry out, within the National Health Insurance Expenditure Target or the expenditure targets per branch (the former being divided up, by necessity, into sub-targets and the latter liable to be so-divided), arbitration between the sub-targets. However the projected and non-restrictive value of the expenditure sub-targets and targets runs the risk of limiting the use of the new possibilities for amendments which have thus been created.

    c) Monitoring Procedures

    It is necessary to distinguish between amendments tabled in committee and those tabled in plenary sitting.

    In the first case, it is the task of the chairman of the committee and, in case of doubt, his bureau, to judge the admissibility of an amendment as regards article 40 of the Constitution. If necessary he may request the opinion of the Chairman or the General Rapporteur of the Finance Committee. Amendments which he declares inadmissible are not examined by the committee. The Government or an M.P. may, at any time, invoke article 40 of the Constitution concerning a modification which has been made by a committee to a Government or Member’s bill i.e. an amendment adopted by a committee and included in the text which will serve as the basis for the discussion in plenary sitting. Such inadmissibility is decided upon by the Chairman or the General Rapporteur of the Finance Committee.

    In the case of amendments which have been tabled with a view to their consideration in plenary sitting, it is the President of the National Assembly who is responsible for deciding on their financial admissibility. However, it is customary that the President almost always follows the advice of the Chairman of the Finance Committee or, failing that, of the General Rapporteur or of a member of the Finance Committee appointed for that reason (article 89, paragraph 3 of the Rules of Procedure provides for such a consultation in the case of doubt). All contentious amendments are thus referred, upon their being recorded, to the Chairman of the Finance Committee and his opinion will play a decisive role. When the declared opinion is one of inadmissibility the amendment is sent back to the author. It is not distributed and will not be called for discussion.

    This advance monitoring procedure does not mean that financial inadmissibility cannot be declared at a later stage for Members’ bills and for amendments. This possibility which is provided for by article 89, paragraph 4 of the Rules of Procedure is an option both for the Government and for any M.P. However in practice a declaration of financial inadmissibility will rarely be made at later stages since the first check which is carried out at the moment of tabling, should have eliminated all initiatives which might run such a risk.

    Nonetheless financial inadmissibility can be declared concerning amendments which have been distributed. In this case the judgement concerning admissibility is carried out in the same way as upon tabling, i.e. upon a decision of the President of the National Assembly following an opinion of the Chairman of the Finance Committee. Given the systematic checking of the admissibility of amendments upon their tabling, such a new consultation would only occur in exceptional circumstances: this might be the case, for example, when the discussion brings to light new facts which might call into the question the opinion concerning admissibility which was reached at the time of tabling.

    It should be noted that the procedure for the monitoring of financial admissibility which is laid down by the Rules of Procedure grants the power of decision-making on admissibility during the legislative procedure to parliamentary bodies and to parliamentary bodies alone. In the case of a dispute concerning the admissibility of an amendment, in particular if the Government were to contest the admissibility declared by the relevant parliamentary authority, it is the decision of the said authority which, at this stage, has primacy, without appeal over an external judge. This is the contrary of what is provided for in cases of “legislative” admissibility.

    Decisions taken by parliamentary bodies in the area of financial admissibility may only be contested by means of appeal before the Constitutional Council, in the procedure laid down by article 61, paragraph 2 of the Constitution, after the law has been passed. The Constitutional Council recognizes its jurisdiction to decide whether or not a correct decision has been taken, during the legislative procedure, concerning the application of article 40 of the Constitution in the field of judgements on financial inadmissibility or admissibility. In the latter case however, the Constitutional Council considers that such a matter may only be referred to it if the objection of inadmissibility has been raised before Parliament.

    2. – The monitoring of the legislative admissibility of amendments

    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 case of disagreement between them, “the Constitutional Council, at the request of one or the other, shall give its ruling within eight days”.

    Initially, only the Government could claim inadmissibility and, in practice, the complexity of the procedure meant that it was only rarely used. By granting this right to the President of the National Assembly, the constitutional revision of July 23, 2008, intended to increase its use.

    A major difference between this procedure and that which deals with the respect of article 40, is that legislative admissibility is not systematically checked at the moment of the tabling of Members’ bills and parliamentary amendments: such monitoring requires the intervention of the Government or of the President of the National Assembly.

    Thus, in application of article 41 of the Constitution, article 93 of the Rules of Procedure of the National Assembly provides that the inadmissibility of a Member’s bill or of an amendment may be claimed at any moment by either the President of the National Assembly or by the Government. It also states that an amendment which takes the form of a provision of a text resulting from the work of a committee may also be subject to such a claim. The second and third paragraphs of article 93 respectively envisage the case of inadmissibility claimed by the Government and that of inadmissibility 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 make a decision. 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 in the case of disagreement with the latter, he must refer the matter to the Constitutional Council. In cases where the President of the National Assembly envisages claiming inadmissibility or must judge the inadmissibility which is claimed by the Government, it is provided that he may consult the Chairman of the Law Committee or a member of this committee who is specially appointed for this purpose.

    3. – Other restrictions to the right to amend

    a) Restrictions Linked to the Proper Organization of Parliamentary Debates

    So that the discussion of the articles of a bill and the amendments linked to them may be ordered and coherent and so that each actor in the debate (Government, rapporteur and M.P.s) may be provided with the time to prepare the discussion, it is necessary to set down a date for the tabling of such amendments. The reform of the Rules of Procedure of May 27, 2009, institutionalized the time limits for tabling amendments in committee: amendments must be tabled at the secretariat of the committee, at the latest by 5pm on the third working day before the examination of the bill in committee. The reform also modified the time limit for amendments tabled on a bill discussed in plenary sitting. This time limit is now also set at 5pm on the third working day before the examination of the bill in plenary sitting as opposed to the previous limit which had been, from 2006, 5pm on the day before the discussion.

    The Constitutional Council accepted the setting of such time limits provided that the chairmen of committees, in the case of the examination of bills by their committee or the Conference of Presidents, in the case of the plenary sitting, could set another time limit if the limit fixed by ordinary law did not enable the respect of the “needs for the clarity and regularity” of the debates thus fully guaranteeing “the effective nature of the right to amend granted to parliamentarians by article 44 of the Constitution” (Decision n°2009-581 DC of June 25, 2009). As regards amendments in plenary sitting, the Institutional Act of April 15, 2009, states that in any case, M.P.s’ amendments must, by obligation, be tabled before the beginning of the examination in plenary sitting.

    - There are special time limits for the examination of the second part of the finance bill: amendments concerning the examination of credits must be tabled at the latest, at 1pm two days before the discussion and those on articles not concerning credits may be tabled the day before the discussion at 1pm.

    After these limits the only amendments which are admissible are sub-amendments and amendments presented by the Government and the lead committees as well as amendments dealing with articles modified or added by a Government or lead committee amendment which was tabled after the time limit expired.

    b) Inadmissibility Linked to the Subject of the Amendment

    Article 98 of the Rules of Procedure of the National Assembly states that amendments shall only relate to a single article. Sub-amendments may not contradict the meaning of the amendment they refer to and shall not be amended. In addition, in accordance with article 45 of the Constitution, the same article 98 accepts the admissibility, on first reading, of any amendment which has a link, even an indirect one, with the bill which has been tabled or transmitted. In all cases, it is the task of the President of the National Assembly to judge the admissibility of the amendments so tabled, regarding the application of these provisions.

    c) Restriction Linked to Examination in Committee

    In accordance with article 44, paragraph 2 of the Constitution, the Government may object to the consideration of any amendment or sub-amendment which has not previously been referred to a lead committee. This procedural weapon is usually only used in the case of a clear filibustering tactic for amendments tabled after the last meeting of the committee.

    d) Restrictions Linked to the Needs of the Legislative procedure

    As has been previously seen, the legislative procedure, based as it is on a system of “shuttles” between the two assemblies, attempts to gradually bring their two points of view closer together so that an identical bill will be passed by both Houses. Thus, it is logical that all the articles of a law which, at a certain stage in the procedure, have been passed in the same terms by the two assemblies should no longer need to follow the “shuttle” and should no longer be modifiable by amendment. This is also the case for amendments which would call into question provisions which have been properly passed, by introducing incompatible additions to the bill. The only exceptions to the aforementioned rules would be in the case of ensuring coordination with other provisions of the bill, of correcting a mistake or of ensuring the respect of a constitutional provision.

    The text which emerges from the deliberations of the joint committee is also subject to specific restrictions regarding the right to amend. These are justified by the need to avoid misrepresenting the agreement reached by the two assemblies on a common text. Article 45, paragraph 3 of the Constitution thus makes provision that the only admissible amendments to this text are those made by the Government or made by parliamentarians and whose tabling has been accepted by the Government.

    In addition, the Constitutional Council, since its decision of June 25, 1998, considers that the text submitted to the deliberation of the two assemblies after the meeting of the joint committee (whether or not such a meeting succeeds or not) may not be subject to additions and that the provisions passed in identical terms before the meeting of the joint committee may only be modified by amendments which either directly concern a provision still under discussion or which are dictated by the necessity to ensure the respect of the Constitution, proper coordination with other bills being then discussed or to correct a mistake.

    The constitutional judges then broadened the field of this jurisprudence by censuring completely new provisions introduced by the joint committee itself (decision of August 5, 2004).

    Even more recently, the Constitutional Council, in a decision taken January 19, 2006 which overturned former jurisprudence, announced its intention to rule out, as of second reading, amendments which did not directly concern a provision still under discussion. This decision included the same exceptions as those provided for in the case of bills put to the assemblies after the meeting of the joint committee.

    Furthermore, when the Government decides, in accordance with article 45, paragraph 4 of the Constitution, to give the final say to the National Assembly by means of a last reading called the “definitive reading”, the only amendments which are admissible to the final bill passed by the National Assembly are those which have been previously passed by the Senate during the new reading.

    e) The Forced Vote

    As a logical consequence of the existence of restrictive passing procedures which reflect the “rationalized parliamentarianism” so designed by the framers of the 1958 Constitution, article 44, paragraph 3 of the Constitution, authorizes the Government to request the Assembly examining the bill to decide by a forced vote on all or part of the bill under discussion. In this case the only amendments admitted are those proposed or accepted by the Government.

    f) Restrictions Linked to the Nature of the Bill under Discussion

    Given their very nature, the following texts may not be amended: texts of international conventions annexed to bills authorizing their ratification, motions aiming at putting certain bills to a referendum, motions tabled in accordance with article 34-1 of the Constitution and proposals made by the Conference of Presidents concerning the agenda.

    II. – THE PHYSICAL PRESENTATION OF THE AMENDMENTS AND THE ORGANISATION OF THE DISCUSSION

    1. – The physical presentation and circulation

    a) Physical Presentation

    Amendments must be written down, signed by at least one of their authors and placed on the Table of the Assembly (i.e. in practice, handed in to the Table Office) or tabled in committee. The same requirements of written presentation apply to sub-amendments.

    Each amendment consists of a statement which precisely sets out the proposed insertion in the bill, along with its content and a short presentation which briefly explains the reason for the amendment.

    Upon the request of its author and if the lead committee agrees, an amendment may be the subject of a preliminary assessment by the Committee for the Assessment and Monitoring of Public Policies.

    b) Circulation

    The amendments and sub-amendments are printed, distributed and placed on-line on the site of the National Assembly. In practical terms, the M.P.s, both in committee and in plenary sitting, are given a bundle with all the amendments and sub-amendments listed by order of examination, (see below). Every amendment bears the name of its author. In committee, amendments may have as their authors, the Government, the rapporteur, if applicable the rapporteur of the consultative committee or the other M.P.s. In plenary sitting, there are Government amendments, lead committee amendments, consultative committee amendments and amendments from M.P.s. It should be underlined that amendments adopted by the committee after the meeting given over to the examination of the report, are included in the text which will serve as the basis for the discussion in plenary sitting (except in the case where the discussion is based on the original Government bill).

    2. – Organization of the discussion of amendments

    a) Order of Calling

    The way in which amendments are listed is very important as the passing of one amendment can have the consequence of the “dropping” (i.e. rendering obsolete) of all amendments proposing concurrent solutions.

    The method used is based on two principles:

    - From a formal point of view, the order of listing must go from the general to the specific: the deletion of an article is called before the deletion of a paragraph, and the latter is called before the deletion of a sentence which itself will come before the simple deletion of words etc.;

    - As regards the meaning of the amendments, they are voted upon beginning with those which are furthest from the proposed text. These are followed, in order, by amendments which differ from the original text, which are to be inserted and by those to be added to it.

    When several amendments, exclusive of each other, are in competition, the chairman of the sitting may have them discussed together so that the M.P.s can hear all the authors before the amendments are voted upon.

    It should also be stated that amendments tabled by the Government or the lead committee have priority during discussion over those tabled by M.P.s on identical subjects.

    Practically speaking, the order of calling is actually written down on a sheet bearing the list of amendments in their order. This sheet is distributed to all the M.P.s present during a sitting.

    b) Procedures during Discussion

    During the examination of an amendment, the chairman of the sitting will successively give the floor to:

    - The author, or one of the authors, of the amendment to present the subject and defend the purpose (amendments whose authors are not present are not called);

    - The rapporteur of the chairman of the lead committee, who recalls the committee’s position;

    - If need be, the rapporteur or the chairman of the consultative committee;

    - The Government;

    - Finally, a speaker of the opposite opinion.

    - He may also give the floor to a speaker to reply to the Government or to the committee. When the Government’s opinion and that of the committee are identical, only one speaker shall be authorized to reply to them.

    The amendment is then put to a vote by the chairman of the sitting who will recall the opinion expressed by the Government and the lead committee.

    It should be noted that the time allowed to present an amendment will differ according to the procedure which governs the examination of the Government or Member’s bill to which the amendment applies. Generally speaking, speeches on amendments, other than Government speeches (which have no time limit) may not exceed two minutes. Nonetheless, if the Conference of Presidents has decided to fix a maximum length for the examination of the bill (the Set Time Limit Debate Procedure), speeches during the general discussion, on articles or on amendments are not limited as long as the time allotted to the group to which the speaker belongs, has not been used up. When a group has used up all its speaking time, its members may no longer speak. Their amendments are then put to a vote without debate.

    ANNEX

    Main Formulae for Amendments

    So as to simplify the presentation of amendments, each of the paragraphs in the bills submitted to the National Assembly, is numbered. An amendment which refers to one or several paragraphs in a bill will thus refer to these numbers.

    1. Deletions

    Delete

     

    this article.

    paragraph n of this article.

    the n-th phrase in paragraph n of this article.

    In the n-th phrase in paragraph n of this article., delete the words: “...”

    2. Re-writing

    Rewrite as follows

     

    this article.

    paragraph n of this article.

    the n-th phrase in paragraph n of this article.

    Substitute in the place of paragraph n of this article the following paragraphs: “...”

    Substitute in the place of the n-th phrase of this article the following phrases: “...”.

    Substitute in the place of paragraph n of this article the following paragraph: “...”

    Substitute in the place of the n-th and m-th phrases of paragraph n of this article the following phrase: “...”

    3. Substitutions

    In the n-th phrase of paragraph n of this article, substitute for the words: “...”the words: “...”

    Rewrite the beginning of this article thus: “...” (the rest without change).

          From paragraph n of this article: “...” (the rest without change)

    the n-th phrase of paragraph n of this article: “...” (the rest without change).

    After the words : « … », rewrite the end of this article thus: “...”.

    From paragraph n of this article: “...”.

          the n-th phrase of paragraph n of this article: “...”

    4. Insertions and additions

    – After paragraph n of this article,

      Before paragraph n of this article, insert the following paragraph: “...”

      Complete this article with the following paragraph: “...”.

    – At the beginning of paragraph n of this article,

      After the n-th phrase of paragraph n of this article, insert the following phrase: “...”

      After the last phrase of paragraph n of this article,

      Complete paragraph n of this article with the following phrase: “...”

    – Rewrite the beginning of the n-th phrase of paragraph n of this article thus: “...” (the rest without change).

      In the n-th phrase of phrase of paragraph n of this article, after the word(s): “...”insert the words “...”

      Complete the n-th phrase of paragraph n of this article by the word(s): “...”.

    5. Additional Articles

    Additional article

    after article N, insert the following article: “...”