Engagement de Responsabilité: Gambling Your Government with the Assemblée Nationale
Introduction:
On January 23, 2023, French Prime Minister Elizabeth Borne—at the direction of President Macron—introduced legislation to amend a financial aspect of the Social Security Code.[1] These amendments went through their appropriate regulatory review bodies with minor scrutiny or care. As hearings on the legislation became public and the economic situation of the country worsened, questions started forming on one of its provisions. On March 16, 2023, after its comfortable passage in the Sénat, Borne stood upon the elegant rostrum facing her colleagues in the Assemblée Nationale, and announced that the Government had decided to invoke Article 49.3 of the Constitution to pass the legislation without a vote of the chamber. With news of this announcement making its way through the halls of Parliament, the Deputies prepared for such an announcement, erupted with calls for the immediate resignation and dissolution of the Government.
Shortly before its scheduled vote in the Assemblée, the Council of Ministers convened an emergency meeting to authorize the Prime Minister to initiate the procedure. The decision followed a series of frenzied meetings with senior officials, which seemed to indicate that there was insufficient support in the Assemblée to pass the reform. By choosing to circumvent a parliamentary vote, the Government had opted to push forward with its plans to increase the retirement age from 62 to 64. However, this decision has resulted in the exacerbation of the ongoing protests and strikes that have plagued France in recent months. Additionally, the move has allowed the opposition to immediately initiate a vote of confidence in Parliament, adding to the political tension surrounding this controversial move.
On March 17th, two separate coalitions introduced the motion de censure. The Assembly is made up of 577 “Deputies,” with the governing majority being 289 seats. The ideological left had 91 signatures for their motion. Attached was a brief resolution displaying their disapproval of the government:
“The Government has opted to bypass our institutions in order to pass an unjust reform that did not enjoy the support of the population while that of Parliament was not won by it. The spirit of the Constitution has clearly been hijacked here, which is why the opinion of the Council of State, warning about the constitutional risks induced by this bill and measures that had nothing to do with it, was deliberately not transmitted to the national representation…No sincere democrat attached to the Republic can accept such detailed conditions of examination on a text which will have a strong impact on the lives of millions of our compatriots for decades to come.” [2]
The right-wing Deputies submitted another motion with 88 signatures. The left-wing motion came close to passing, with having 278 out of the 289 votes needed. The secondary motion failed with 94 votes.
Understanding Article 49:
Article 49 of the French Constitution serves the fundamental responsibility of delineating the political responsibility of the government vis-à-vis the parliament.[3] It establishes the general framework for the executive branch’s accountability to its legislative counterbalance, providing unique privileges to both. The provision was included in the Constitution to address the shortcomings of the Fourth Republic, which was characterized by successive and incoherent administrative takeovers. One of those shortcomings being the executive authority to force through legislation without parliamentary repercussions.
Article 49 underwent amendments through the National Assembly in 1995 and again in 2008. The article originally prescribed that when there were two legislative sessions a year, supporters of a rejected no-confidence vote were restricted from introducing another in the same session. Currently, a deputy can sign up to three censure motions in a single ordinary session, and one additional motion in an extraordinary session. The original version of the article did not limit the administration’s use of engagement de responsabilité. However, since 2009, invoking an engagement de responsabilité is restricted to: (1) finance laws; (2) laws financing social security; and (3) one other legislative project per session.
The implementation of Article 49 occurs in three stages: (1) deliberation of the Council of Ministers; (2) an engagement de responsabilité, or “commitment of responsibility” by the Prime Minister; and if applicable, (3) the submission of a motion de censure, or “vote of no-confidence.”. If no motion is filed, the legislation is considered adopted.
The Conseil des ministres, or “Council of Ministers,” is a collection of Senior Ministers (ministres d’État) and select Junior Ministers (secrétaires d’État). The French Executive can be summarized by: (1) the President – head of state; (2) the Prime Minister – head of government and chief liaison to the legislature; and (3) the Government – a collection of the various ministers. Following the transition from the Fourth French Republic, the President holds considerable power—with the only exceptions being under the appointment of a Prime Minister of a differing party. The President appoints the Prime Minister and formally appoints all ministers at the recommendation of the Prime Minister. In practice, the President works closely with their Prime Minister to adequately fill each ministry. The President pays good attention to these appointments, as there are various constitutional restrictions that require the signature of a minister. Although the President is free to appoint whomever they please to serve as Prime Minister, the Assembly’s power to force the Government’s resignation via “no-confidence,” the President must listen to the will of the Parliament. Article 49 Subparagraph 1 stipulates that a “deliberation in the Council of Ministers” in order to invoke an engagement de responsabilité. This step largely feels like a ‘rubber stamp’ as the Prime Minister is seeking approval from their subordinates—subordinates they may dismiss at will.
After deliberation of the Council, the Prime Minister may express an engagement de responsabilité to the National Assembly—but they are required to do this in person. They are able to act as soon as the legislative text is introduced, preventing all debate. More frequently, the Government allows debate to take place and perhaps the legislative text to be amended.
The rules of the Assembly allow the Government to ask for an amendment to be held, which in effect, would push discussion back until a later time.[4] This is a useful delay tactic by the Government if they believe they can find more votes to pass the legislation. If an engagement de responsabilité is invoked, this discussion does not take place. Thus, the government can avoid amendments it does not favor. Once the engagement de responsabilité is ‘committed,’ it is no longer possible to come back to measures previously adopted.
The engagement de responsabilité may also contain amendments to the original legislation that were not originally included in the text discussed by the Assembly. In effect, this grants the Government the ability to select what it wants and does not want in the measure.
Once the government invokes an engagement de responsabilité, there will be a twenty-four hours delay in the legislative session to allow for the introduction of a motion de censure. The only difference between such a motion of censure, said to be ‘provoked’, and a ‘spontaneous’ motion de censure under Article 49 Subparagraph 2 is that a provoked motion is not counted in the fixed limit to the number of motions that a deputy may sign in the course of a session, The other provisions of Subparagraph 2, signature by a tenth of the members of the Assembly, delay before a vote, and adoption by an absolute majority of the Assembly members, all apply.
Usually, a motion de censure is introduced in response to the Government’s use of 49.3. If adopted, the motion entails the rejection of the law text and the resignation of the Government. However, only the National Assembly must pass the motion, not all of Parliament. If a motion were to pass, it would be likely that the President would dissolve Parliament and call a new election. Without a functioning government, the President would want to test their bets by changing the political landscape before appointing a new Prime Minister.
French Constitutionalism:
The existence of Article 49 is a continuing debate over the democratic balance between the legislative and executive branches. Its framers argued that the act of electing the President is an expression of trust from the “sovereign people.” The relationship between the executive ministers and the legislative deputies is governed by the Constitution, which stipulates that a motion of no confidence can only occur under extraordinary circumstances. In such cases, the President, responsible for ensuring the continuity of the State, has the capability and privilege to resolve the issue through recourse to the nation, whether by new elections, a referendum, or both. While the difficult procedure for a motion of no confidence may be a known flaw, it is tempered by the administration’s counter. The deputies’ greatest—and practically only—check on the government is the motion of no confidence. Experience has shown that a unique disposition is required to ensure the passage of such a motion, which makes it a stipulation to be used as an absolute necessity.
[Read the rest of the article in the attached documment]
