File n° 31 

 I. – the exercise of Parliament’s right To initiate legislation

1. – Concurrent exercise

According to article 39, paragraph 1 of the Constitution, “the Prime Minister and Members of Parliament alike have the right to initiate statutes”. 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 which 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 of presentation. This is, first of all, the case for finance bills and social security finance bills in accordance, respectively, with articles 47 and 47-1 of the Constitution. It is also the case for planning laws and programming laws as well as, following institutional logic, for laws authorizing the ratification or the acceptance of international treaties or agreements mentioned in article 53 of the Constitution.

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 at first reading.

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

a) The Form of a Members’ Bill

A Members' 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 prescriptive part, referred to as the “main body” must be drafted in the form of articles.

As to the content of a Members' 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 laws) 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

Members' bills are not submitted to any prior opinion (on the contrary of Government bills) but their financial admissibility is checked when they are tabled. 

Parliament’s right to initiate legislation belongs individually to each Member of the National Assembly or the Senate. 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 Members' bills. In this case, coherence can be re-established by the procedure of simultaneous examination of two or more Members' bills. A similar procedure can be applied to link discussions which have been initiated simultaneously in the National Assembly and the Senate on Members' bills with similar aims.

c) The Specific Case of Draft Resolutions

Resolutions are non-legislative instruments passed by a single parliamentary assembly. The Constitutional Council made an attempt, from 1959 on, to limit their field to “the drawing-up of measures and decisions of an internal nature dealing with the running and the discipline” of the assembly “outside of the cases directly provided for by the constitutional and institutional laws”.  

Draft resolutions can deal with five types of subject :

―  Modifications in the Rules of Procedure ;

―  The setting-up of a committee of inquiry ;

―  The suspension of proceedings against or the suspension of detention of a Member of the Houses of Parliament in accordance with article 26 of the Constitution ;

―  The indictment of the President of the Republic before the High Court of Justice in accordance with article 68 of the Constitution (this is the only draft resolution which must be passed in identical terms by the two Chambers) ;

―  Instruments of the European Union including provisions which are a matter for statute in accordance with article 88-4 of the Constitution.

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 those which deal with instruments of the European Union for which examination in plenary sitting is not systematic).

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

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.

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. 

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, indeed, 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 Members' bill, but also that of adding new provisions to the bill. Such additions usually take the form of amendments introducing additional articles. They may not be distinguishable, through their objective, from Government or Members' bills and could have been, in certain cases, presented in such a way. It is not unusual to see the contents of all or part of a previous Members' bill or even a Government bill, reused, in the form of an amendment to another bill. The question is therefore raised as to what limits there are on the right of amendment in opposition to the right to initiate through a bill.

The Rules of Procedure of the National Assembly provide for a procedure which allows inadmissibility to be claimed against amendments which do not, in effect, apply to the bill to which they are presented or in the case of bills including additional articles, which are proposed “outside the framework” of the Government or Members' bill.  However, this procedure, laid down by article 98, paragraph 5, is optional and is rarely applied. The question of the admissibility of such amendments, if it is raised, is submitted to a decision of the assembly and is thus a matter of the judgement of the appropriateness of the amendments by the assembly rather than one based on legal criteria. 

The jurisprudence of the Constitutional Council has established, through its decision n° 86-221 DC of December 29, 1986, a distinction, reused several times since, between the right to initiate, provided for in article 39, paragraph 1 and the right of amendment, provided for in article 44, paragraph 1 of the Constitution. According to this precedent, the right of amendment is the “corollary” to the right to initiate legislation. The Constitutional Council concludes that additions or modifications made to a bill under discussion could not, without misunderstanding the Constitution, either be “without a link” to it or “go beyond, through their aim or effect, the limits inherent in the right of amendment”. Since then, the Constitutional Council has dropped this last criterion and now only refers to that involving the link between the bill and the amendments. 

II. – restrictions of a general nature on Parliament’S right To initiate legislation

The bills and amendments put forward by Members of the Houses 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, bills and amendments 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 laws, and in particular the exclusive power of the finance laws to govern certain matters only.

Similarly, article L.O. 111-7 of the Social Security Code makes provision for the inadmissibility of amendments contrary to the provisions of the institutional law concerning the social security finance laws.

Initiatives presented 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 81, paragraph 3 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 or, more precisely, those whose inadmissibility “is clear”.

As for amendments, 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 a priori 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 92, paragraph 1 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 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 “should it be found, in the course of the legislative process, that a Members' bill or amendment is not a matter for statute…, the Government may object that it is inadmissible”. The application procedure for legislative inadmissibility which results from this provision has characteristics which differentiate it from that concerning financial inadmissibility.

―  First of all, legislative admissibility is not systematically monitored at the time of the tabling of Members' bills or amendments. As this is a mechanism which is aimed at protecting the field of matters for regulation, as set out in article 37, paragraph 1 of the Constitution, it is a matter for the Government and the Government alone, to apply, if it feels it useful, the procedure which enforces its respect. Legislative inadmissibility is thus always raised after the distribution of the initiative concerned. Thus, in the practice that is followed at the National Assembly, the objection is usually made at the Conference of Presidents (i.e. when inclusion on the agenda is considered) in the case of Members' bills. In the case of amendments, the objection of inadmissibility is usually raised at the moment discussion of the amendment is called in plenary sitting. 

―  Secondly, article 41 of the Constitution, like article 93 of the Rules of Procedure of the National Assembly, which sets down its conditions of application, only  makes provision for a single authority to decide on the objection, whatever the initiative concerned and the moment the inadmissibility raised. This authority is the President of the National Assembly who personally makes a judgement in all cases. Consultation with the Chairman of the Committee on Constitutional Laws, Legislation and the General Administration of the Republic, or with a member of its bureau appointed for this reason, is only potential. Thus, if the President of the National Assembly is not in a situation to take an immediate decision, the discussion will be suspended. 

― Thirdly, the decision taken by the President of the National Assembly does not have the same ramifications depending on the case.

· If he considers that the objection of inadmissibility has been rightly raised, the inadmissibility will be accepted by this very fact. This is enough to block the discussion or to interrupt it, if it has already begun.

· In the case of disagreement with the Government, i.e. if the President of the National Assembly does not accept the objection of inadmissibility, then the Constitutional Council is called upon to deliver a judgement in eight days, in accordance with article 41, paragraph 2 of the Constitution. Thus the discussion is suspended until the decision of the Constitutional Council is given. In such a case the Constitutional Council has the unusual role of intervening in the course of the legislative procedure.

The handling of legislative inadmissibility is therefore, generally speaking, relatively heavy and so its use has become quite rare. In addition, in the case of the inclusion of a provision of a regulatory nature in a law, the Government always has the possibility of asking for its “down-grading” by the Constitutional Council, in accordance with article 37, paragraph 2 of the Constitution and of then regaining the power to modify it by decree. 

The autonomy of regulatory power in relation to legislative power is not of an absolute nature. As the Constitutional Council suggests, the specific procedures aimed at ensuring the protection of the field of regulation against possible encroachments by the field of legislation, are of an optional nature. The result is that the incursions of the legislator in the regulatory field are not naturally repulsed by charges of unconstitutionality and that those who make a referral in accordance with article 61, paragraph 2 of the Constitution, are not necessarily able to take advantage of the regulatory nature of a provision to obtain its cancellation.

It should be noted, however, that in order to bring an end to legislative overproduction, particularly due to the passing of numerous regulatory provisions in the laws, there has been a desire to revive the legislative inadmissibility procedure. The President of the National Assembly did in fact raise it twice during 2005. As for the Constitutional Council, the declarations of its President can allow one to imagine a change in its jurisprudence, which has already been made clear in the automatic downgrading of regulatory provisions in the law on school orientation, in the framework of the monitoring of constitutionality procedure provided for by article 61 of the Constitution.