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Commissions of Inquiry
I. – COMMISSIONS OF INQUIRY
1. – The setting-up of a commission of inquiry
From 1991 on, the term “commission of inquiry” has been applied to bodies which formerly were known either as “commissions of inquiry” per se (those which dealt with a specific situation) or “monitoring commissions” (those which dealt with the administrative, financial or technical management of public services or State-run companies).
The setting-up of a commission of inquiry is entirely a parliamentary initiative. It takes the form of a motion tabled by one or several M.P.s requesting the setting-up of the said commission. This motion must set out the reasons for the request and must establish the object of the inquiry.
It is then transmitted to the relevant standing committee. The National Assembly then votes in plenary sitting.
From 1988 onwards, a convention was established allowing each political group the annual right to have one such motion requesting the setting-up of a commission of inquiry included on the order paper. This convention, which had fallen into abeyance, was strengthened and re-established by the reform of the Rules of Procedure of May 27, 2009. Henceforth each chairman of an opposition or minority group may request once per ordinary session, with the exception of that preceding the renewal of the Assembly, a debate in plenary sitting on the setting-up of a commission of inquiry. For the creation of such a commission of inquiry to be rejected, the negative vote must garner the support of three-fifths of the members of the Assembly. Only M.P.s who are against such a creation take part in the ballot.
a) The Admissibility of the Motion
In its report the standing committee gives its verdict on the admissibility of the motion as regards the law and also upon its timing.
According to the Rules of Procedure of the National Assembly, the motion has to “precisely set out the facts warranting the inquiry or…specify the public services or entities whose management is to be investigated by the committee”. This requirement is not particularly demanding in practice.
In addition, the ordinance of November 17, 1958, concerning the functioning of the parliamentary assemblies, specifically prohibits the setting-up of a commission of inquiry concerning events which have led to legal proceedings and for as long as such proceedings continue. This is why the Rules of Procedure of the National Assembly make provision for the President to notify the Minister of Justice as soon as such a motion has been tabled.
The problem of the precise limits of the respective areas for parliamentary inquiry and judicial investigation has led to a complex jurisprudence; the interpretation which takes precedence is, that the existence of proceedings does not prohibit the setting-up of a commission of inquiry when it is so desired, but nonetheless limits its field of investigation to events not covered by the proceedings. Thus the flexibility of the interpretation of this rule has not stopped for example the setting-up of commissions of inquiry into the Civic Action Service, sects, the Crédit Lyonnais bank, or the student social security system.
Whatever the case, the work of a commission of inquiry is automatically suspended upon the beginning of a judicial inquiry concerning the events which led to the establishment of the original commission of inquiry.
b) The Make-up of Commissions of Inquiry
Although the Ordinance of 1958 provided originally for the commissioners to be appointed by majority vote, a compromise has always meant that political groups are represented proportionately.
The revision of the Rules of Procedure of May 27, 2009, strengthened the cross-party nature of the commissions of inquiry. Henceforth their members are appointed proportionally according to the strength of political groups whilst their bureau must attempt to reproduce the political configuration of the Assembly and to ensure the representation of all its elements. In addition the positions of chairman or rapporteur must automatically be filled by a member of an opposition or minority group.
The commissions of inquiry have a maximum of thirty members, who elect their bureau and rapporteur by secret ballot. This bureau must be comprised of a chairman, four deputy chairmen, four secretaries and a rapporteur.
2. – The work of the commissions
a) Time Limits
The commissions of inquiry are of a temporary nature. Their mission comes to an end upon the filing of their report or at the latest six months from the date of the passing of the motion which set them up.
In addition, a commission of inquiry may not be reconstituted with the same mission within twelve months of the end of its original mission or of the end of the work of a mission set up by the Conference of Presidents on the same subject.
b) Important Powers
According to the Ordinance of 1958, “Commissions of inquiry are created in order to gather information…with a view to submitting the conclusions to the assembly which established them”.
They organize their work according to the rules applicable to the standing committees. The law has drawn up their prerogatives in line with those of the Finance Committee:
- The right of direct summoning: every person whose evidence before the commission of inquiry is deemed useful by the chairman of the commission of inquiry is bound to appear before the said commission of inquiry. This summons may be made through a bailiff or a police officer. The witness’s testimony is given under oath except for minors of under sixteen years old. The witness is, in addition, required to testify under the provisions of articles 226-13 and 226-14 of the Criminal Code, pertaining to professional secrecy. These obligations carry legal penalties if not carried out. In addition, the penalties applicable in the case of perjury or of bribery of a witness are equally applicable for parliamentary inquiries. Legal proceedings may be instituted upon the request of the chairman of the commission of inquiry or upon that of the Bureau of the Assembly, when the report has been published. However, since the adoption of the law n°2008-1187 of November 14, 2008, witnesses who give evidence are protected against defamation, libel and slander concerning testimony given before a commission of inquiry unless they are outsiders to the subject of the inquiry;
- The rapporteurs have very specific powers. They carry out their mission with access to all evidence. All information which can make their task easier must be provided to them. They are empowered to see all department documents with the exception of those which are classified and concern national defense, foreign affairs, and the internal or external security of the State. This must all be carried out within the notion of the respect of the principle of the separation of the legal authority from all the other branches of power. They may also appeal to the Court of Accounts (this was the case for example of the commission of inquiry on privatization in 1989).
- The public nature of the hearings: each commission of inquiry is free to organize the public nature of its hearings as it wishes, including television broadcasting. It may also, on the contrary, decide to meet “in camera”. It must be stated that the notion of secrecy continues to be applied to the other work of the commission, for example to its internal deliberations concerning the drawing up of its report. The publication of the report means such deliberations can be made public.
Each commission of inquiry has a secretariat made up of civil servants of the National Assembly. The numerous hearings which it carries out, are presented in minutes, which are often contained in annexes to its report. It may carry out missions in France (or, if necessary, abroad) and has a special budgetary allocation in the budget of the National Assembly for that purpose. It may also have recourse to the technical help of specialists.
c) The Conclusion of Its Work
The report is adopted by the commission of inquiry and filed with the President of the National Assembly; this filing is recorded in the Journal officiel. The report is then published, unless the National Assembly meeting “in camera”, following a request which must be made within five days of the filing, decides otherwise. The report of a commission of inquiry may also be debated in plenary sitting without a vote (this was the case for the commission of inquiry on sects in 1996).
Anyone who divulges or publishes any information relative to the non-public work of such a committee of inquiry within thirty years, unless the report published at the end of the committee work has made reference to such information, will be subject to legal penalties. M.P.s who have been subject to a legal or disciplinary penalty on account of infringing the obligation of secrecy during non-public meetings of a commission of inquiry may not be reappointed to another commission of inquiry during the term of Parliament.
3. – The ability to influence without the power to order
a) Orienting Governmental Action
The conclusions reached and the proposals made have a great position in the reports of the commissions of inquiry. These reports clearly reflect the opinion of the majority of the commission, but it is customary to include in a separate section the opinion of minority commissioners.
The conclusions of the reports may lead to a debate without vote. M.P.s may also refer to them by using the procedures of classic parliamentary law, in particular by asking questions to the Government. In addition, a reform of the Rules of Procedure of the National Assembly, adopted on 12 February 2004, makes provision, in the six months following the publication of the conclusions of the inquiry, for a member of the relevant standing committee, appointed by the said committee, to present a report to it on the implementation of the recommendations put forward by the commission of inquiry.
b) Leading to Judicial Action
In carrying out their investigations, the commissions of inquiry may uncover criminal actions. Although they may not make a legal judgement on such actions or give a verdict on the penalties to be applied, the commissions of inquiry may transmit such information, upon his request, to the Minister of Justice with a view to opening a judicial inquiry or they may refer them directly to the State Counsel’s Office in accordance with article 40 of the Code of Criminal Procedure (this was the case for the commission of inquiry on the influence of sectarian movements on minors, in 2006).
c) Encouraging Parliamentary Action
Standing committees, in their turn, may take up an issue examined by a commission of inquiry and go further in its investigation; it can happen that former members of a commission of inquiry may be involved in the tabling of a bill aimed at counteracting the shortcomings in legislation revealed by the inquiry.
II. – THE FACT-FINDING MISSIONS SET UP BY THE CONFERENCE OF PRESIDENTS
A new provision of the Rules of Procedure of the National Assembly, passed in March 2003, in the framework of the modernization of the work methods of the National Assembly, grants the Conference of Presidents the possibility of setting-up fact-finding missions upon the proposal of the President of the National Assembly. The Constitutional Council has made it clear that such missions should be temporary and limit their role to fact-finding.
The setting-up of such missions within the Conference of Presidents, upon the initiative of the President of the National Assembly, confers a certain formality to work on sensitive subjects or current issues which interest all the political groups and all the committees. This is even more the case as the President of the National Assembly may chair such missions (fact-finding missions on religious symbols at school, on health insurance and on questions relating to history and remembrance).
Although three fact-finding missions have elected their chairman as rapporteur (fact-finding missions on religious symbols in school, on caring for people at the end of their lives and on health insurance), the following eight missions during the XIIth term of Parliament all maintained an alternation between governing majority and opposition in the distribution of the positions of rapporteur (ruling majority) and chairman (opposition). This has also been the case for three of the five missions set up during the XIIIth term of Parliament up until October 2009.
This work involves hearings and sometimes even travels in France and abroad. The reports may lead to a debate without vote, in plenary session. Depending on the theme of the mission, it can lead to the tabling of a Members’ bill, co-sponsored by all the members of the mission (the fact-finding mission on caring for people at the end of their lives), a Government bill (the fact-finding mission on religious symbols in school and on the family and the rights of children) or the presentation of a decree (the fact-finding mission on the prohibition of tobacco in public places).
(1) The assessment mission on Law n° 2005-370 of April 22, 2005 concerning the rights of ill people and the end of life was set up on April 8, 2008. It had a special status given that its rapporteur, Mr. Jean Leonetti, had a double role, as he was requested to examine this law by both the Prime Minister and the President of the National Assembly.