Emiliano Grossman – The French “guillotine” procedure: rationalized parliamentarism gone mad

This is a guest post by Emiliano Grossman, Associate Research Professor, Centre d’études européennes de Sciences Po, Paris

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The announcement that the government would again resort to Article 49.3 of the Constitution for the adoption of the second reading of the “Macron Act” on June 18 caused a new outcry among politicians and the press. The first reading had already been subject to this procedure[1]. The main reason behind this is the existence of increasingly strong divisions within the center-left government majority in the Assemblée nationale, France’s lower chamber. The Macron Bill contains a series of measures meant to boost the French economy, but many of its critics within the government camp consider it to be a classic pro-market measure with few benefits for employment or public finance.

The use of this article is not new and neither are the hostile reactions that its use has led to. Opposition parties pretend to be outraged, while members of the majority remain, at best, awkwardly silent. Created by the 1958 Constitution, the ’49 .3′ or ‘guillotine’ is a permanent issue of conflict under the 5th Republic. The reason is simple: the procedure puts an end to parliamentary debate and the normal legislative procedure. In its original wording, the article is very explicit:

The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph.

In other words, once the announcement is made, the law is adopted unless the opponents to the bill force the government to resign through a no-confidence vote! Originally, this text was conceived as a protection for the executive against the excesses of the Fourth Republic with its very high government instability. Article 49 carries very narrow understanding of government responsibility, defined simply as the absence of an absolute hostile majority. This has made it possible to make governments more stable and less vulnerable to fragile majorities. But over time it has turned into a tool in the hands of the executive, even in the absence of a real danger to the government.

As with any use of 49.3, voices on all sides have expressed hostility. Moreover, the two current heads of the executive feature an “anti-49.3” record. The Huffington Post quotes François Hollande arguing in favor of the “abolition of the 49-3” in 2007 (as well as many other now forgotten measures meant to strengthen the powers of Parliament) and Prime Minister Manuel Valls was part a group of “deputés” who, in 2008, introduced an amendment to delete Article 49.3 from the Constitution.

They were also opposed to the only reform of this article, which took place in 2008, under the presidency of Nicolas Sarkozy. The reform was considered too timid. Rather than abolishing the article, it limited its use to the finance bill and one other bill per parliamentary session.

The graph below shows the number of 49.3 per legislature. This includes “complete” five-year legislatures as the last three legislatures, but also shorter ones, such as the 10th (1993-1997) or eighth (1986-1988). The blue-red band above the graph indicates the color of the majority for each legislature (blue = right, red = left).

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The all-time champion of 49.3 is Michel Rocard, prime minister during the 9th legislature. At the time, the left held theoretically had an absolute majority in the Assembly. De facto, however, it could not rely on the Communist Party. With 28 uses, the Rocard governments account for one third of the 83 appeals to date. Edith Cresson, during the same legislature, used the article almost once a month. Before them, Pierre Mauroy, Raymond Barre and Jacques Chirac during the 1986 cohabitation had been regular users. François Fillon, the only Prime Minister of Nicolas Sarkozy’s presidential term, never resorted to 49.3 in 5 years of government.

If the opposition and often much of the majority oppose the use of 49.3, so why is it not abolished once a new majority comes to power? I order to answer this question it is necessary to remember that the world does not look the same from government or opposition benches. The same tool can thus look very attractive to the government and very questionable in the eyes of the opposition. And Article 49.3 is not the only example to illustrate this state of affairs.

The underlying reasons for this almost systematic shift in preferences with regard to article 49. 3 are rather straightforward. The 49.3 is very helpful to incumbent governments. The reasons put forward to justify its use are always more or less the same: “emergency”, the “need” or “no time to lose or risk-taking”. Indeed, in a context of crisis and divisions within the majority, 49.3 appears to be a weapon of last resort. It is a way to re-solidify the majority by confronting it to the danger of new elections. Thus, without even having to improve the bill and convince reticent allies the 49.3 will allow the party of Prime Minister to rely on the absence of opposition, rather than the presence of her majority.

While it is true that parliamentarians do not like the 49.3, there may be secondary benefits to it. It allows “small parties” or government minority partners to dissociate themselves from the government majority on specific bills. Thus, the left wing of the Socialist Party and the Greens can publicly take their distance with the Macron Act and signal their disagreement to their constituents. At the same time, they know full well that they cannot really prevent the adoption of the text. In doing so, they hope to retain a particular electorate, perhaps hostile to the text. Thus, the 49.3 also performs an ‘electoral’ function, as had John Huber (1996) had explained about 20 years ago.

It is therefore remains a valuable tool. To give it away once in power would be short-sighted. This certainly explains the discrepancy between the opposition parties’ advertised projects with regard to article 49.3 and their implementation (or rather, the lack of implementation) of reform once these parties come to power. As a consequence, we can expect new outcries and indignation the next time that the current opposition, when it is in power, resorts again to article 49.3.

[1] The government had already used the same procedure during the first reading. A discussion in French is available here.

John D. Huber, Rationalizing parliament: legislative institutions and party politics in France. Cambridge University Press, 1996.

 

Emiliano Grossman was born in Buenos Aires and grew up in Germany. He holds degrees from Sciences Po and the University of Cambridge. He has been a senior research fellow at Sciences Po since 2003, working now at the Centre d’études européennes (CEE). He is the co-convenor of the Master’s Programme in European Affairs. He teaches courses on EU politics, interest-group politics and comparative politics at Sciences Po. His research concentrates on economic and financial regulation in the EU and political institutions. He has more generally focused on the variety of state-society relations in the EU and the challenges they are facing. At the same time, he has worked on the political systems of EU member states and the effects of the EU on politics, policy-making and political institutions in France. He recently co-edited a special issue for the 50iest anniversary of the French 5th Republic. He is currently working on two major research projects. The first concerns the political agendas in France, which aims at creating quantitative indicators of political activity for the past 30 years or so. The second deals with the politics of financial liberalization in several EU member states over the past twenty years.

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