File n° 35

The Use of the Right to Amend

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, become the main form of expression of M.P.s right to initiate legislation.

It has its source 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”.

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 (subject to limits laid down hereafter) which has gradually led it to be used as the main blocking tactic in Parliament.

The general principle, which has been asserted by the Constitutional Council, is that the right to amend can be freely used at the stage of the first reading of a bill. 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

1. – The monitoring of the financial admissibility of amendments

a) General Principles

Article 40 of the Constitution states that amendments introduced by Members of the Houses 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 or to existing law if it were to be more favourable (this allows parliamentarians to refuse the creation of a new tax for example).

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

The monitoring of the financial admissibility of amendments to finance bills and to social security finance 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 law of August 1, 2001 concerning finance laws. This institutional law 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 48 State missions (including 10 interministerial missions) and 168 programmes. Article 47 of the aforementioned institutional law 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 finance 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 law 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 law 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

The monitoring of the financial admissibility of amendments is carried out in distinctly different ways in the two assemblies:

― In the National Assembly, this monitoring is carried out, in principle, at the moment of the tabling of amendments for the plenary sitting. In accordance with article 98, paragraph 6 of the Rules of Procedure, the President of the National Assembly refuses the tabling of an amendment which he does not consider to be in conformity with the constitutional stipulations. In the case of doubt, he may consult the Chairman or the General Rapporteur of the Finance Committee. In practice, amendments are judged inadmissible by the Chairman of the Finance Committee (who thus acts on the authority and with the power of the President of the National Assembly) and are not distributed and thus not discussed (however, the discussion of and voting on inadmissible amendments is generally accepted during committee debates even if the chairman of each committee is authorized to rule them inadmissible – article 86, paragraph 4);

― In the Senate, the inadmissibility based on article 40 of the Constitution was not subject to prior monitoring and had to be referred to in plenary sitting in order to be announced by the Chairman of the Finance Committee or his representative. Thus inadmissible amendments led to a discussion and even a vote. The Senate put an end to this practice after the decision of the Constitutional Council to reassert the absolute nature of inadmissibility and the necessity for “effective and systematic monitoring at the moment of tabling” (decision of December 14, 2006).

2. – The monitoring of the legislative admissibility of amendments

Article 41 of the Constitution enables the Government to rule out amendments which are matters for regulation and not for statute. This form of inadmissibility can be brought up before or during the discussion of an amendment in plenary sitting. The President of the National Assembly must make a decision but he may consult with the Chairman of the Law Committee. If there is a disagreement between the Government and the President of the National Assembly, the latter refers the matter to the Constitutional Council. In practice, this form of inadmissibility is less and less used given that the Government has the possibility, when a regulatory provision has been passed in a legislative bill, to request the Constitutional Council for its downgrading (article 37, paragraph 2 of the Constitution). It seems however that its use may be returning since, in accordance with the desire of the President of the National Assembly, it has been applied several times since 2005.

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, it is necessary to set down a date for the tabling of such amendments. 

At the National Assembly, M.P.s amendments must be tabled no later than:

―  Either 5pm on the day before the discussion of the bill, unless the Conference of Presidents has decided otherwise;

―  Or the beginning of the general discussion, if the report has not been made available electronically forty-eight hours before the beginning of the discussion.

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 5pm two days before the discussion and those on articles not concerning credits may be tabled the day before the discussion at 5pm.

After these limits the only amendments which are admissible are sub-amendments and amendments presented by the Government, the lead committees or the consultative committee. Also still admissible are 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

The Rules of Procedure of the National Assembly state that amendments and sub-amendments are admissible only if they apply strictly to the bill concerned or, in the case of additional articles, if they are proposed in the framework of the Government bill or Members' bill concerned.

In theory the National Assembly may make a decision on this type of inadmissibility but in practice this procedure is very rarely applied. However the Constitutional Council does regularly in fact censure provisions which it considers “without any link whatsoever to the subject of the bill submitted to Parliament”.

As for sub-amendments, they also must not contradict the meaning of the amendment and may not be sub-amended themselves. 

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 which has not previously been referred to a lead committee. This procedural weapon is usually only used in the case of a clear obstruction tactic, and concerns amendments tabled after the last meeting of the committee.  

d) Restrictions Linked to the Needs of the Legislative Procedure

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 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 “amendable”. 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 or to correct a material mistake.

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 is 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 and which overturned former jurisprudence, announced its intention to rule out, as early as the 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.

On top of this, 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) Restrictions Linked to the Implementation of Restrictive Passing Procedures

The restrictions referred to here are the logical consequence of the existence of restrictive passing procedures which reflect the “rationalized parliamentarianism” designed by the framers of the 1958 Constitution:

― In accordance with article 44, paragraph 3 of the Constitution, the Government may request the assembly having the bill before it to decide by a single vote on all or part of the bill under discussion on the sole basis of the amendments proposed or accepted by the Government.

― Article 49, paragraph 3 of the Constitution allows the Government to obtain the passing of a bill by the National Assembly without a vote if the Government makes such a passing a vote of confidence in itself. In practice, the Government may once again, in this case, decide freely on the amendments which it intends to include in the bill over which it asks for confidence. 

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

It should be remembered that, given their very nature, the following texts may not be amended: texts annexed to bills authorizing their ratification, motions aiming at putting certain bills to a referendum 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 introduction of oral sub-amendments is sometimes accepted in plenary sitting but the chairman of the sitting will usually ask the author to provide him with a written version so that all ambiguity concerning the sub-amendments may be avoided.

Each amendment consists of a statement which pinpoints and sets out the proposed insertion, deletion or modification along with a short presentation which briefly explains the reason for the amendment.

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, in both 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 has the name of its author. In committee, amendments may have as their authors, the Government, the rapporteur or the other M.P.s. In plenary sitting, there are Government amendments, lead committee amendments, amendments from the consultative committees and amendments from M.P.s. It should be noted that amendments accepted by the committee after the meeting given over to the examination of the report, remain personal amendments and do not become committee amendments.

2. – Organisation 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 oppose 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 which are not supported are not voted upon);

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

― The Government;

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

― Finally a speaker of the opposite opinion.

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 committee.

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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 nth sentence of paragraph n of this article.

In the nth sentence of paragraph n of this article, delete the words: “…”.

2.  Re-writing

Rewrite this article.

                            paragraph n of this article: “…”.

                            the nth sentence of paragraph n of this article: “…”.

Substitute the following paragraphs: “…”, for paragraph n of this article.

Substitute the following sentences: “…”, for the nth sentence of paragraph n of this article.

Substitute the following paragraph: “…”, for paragraph n of this article.

Substitute the following sentence: “…”, for the nth and nth sentences of paragraph n of this article.

3.         Substitutions

In the nth sentence of paragraph n of this article, substitute the words:”…”, for the words:”…”

Rewrite the beginning of this article as follows: “…” (the rest remains unchanged).

            of paragraph n of this article: “…”(the rest remains unchanged).

            the nth sentence of paragraph n of this article (the rest remains unchanged).

After the words: “…”, rewrite the end of this article, as follows:”…”.

                                                                  of paragraph n of this article, as follows:”…”.

                                                                  of the nth sentence of paragraph n of this article, as follows:”…”.
 

4. 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 nth sentence of paragraph n of this article, insert the following sentence: ”…”.

After the last sentence of paragraph n of this article,

Complete paragraph n of this article with the following sentence: ”…”.

Rewrite the beginning of the nth sentence of paragraph n of this article, as follows: “…” (the rest remains unchanged).

In the nth sentence of paragraph n of this article, after the word(s):”…”, insert the words: ”…”.

Complete the nth sentence of paragraph n of this article with the word(s): ”…”.

5.  Additional Articles

After article N, insert the following article: ”…”.