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UNION INTERPARLEMENTAIRE / / INTER-PARLIAMENTARY UNION

Association of Secretaries General of Parliaments

CONTRIBUTION

from

MS. C. LUQUIENS

Secretary General of the French National Assembly

To the general debate on

IS IT NECESSARY TO CONSTRAIN DEBATE IN PLENARY SITTING?

Kampala Session

April 2012

In representative democracies, citizens are represented in assemblies. It is thus perfectly natural that the various opinions which coexist within society should be expressed within such assemblies. It is clearly preferable that such a confrontation between ideas should take place in Parliament rather than in the streets.

However Parliament is also the place where laws are passed. In order for it to be able to carry out this task, there must be a governing majority which allows the political policies which have obtained the largest number of votes to be implemented. It is essential that Parliament not be reduced to impotence on account of the lack of a governing majority or of the excessive extension of debates.

The way debates in Parliament are organized must lead to these two objectives being reconciled. The consideration of bills must allow all the different political opinions represented in the assemblies to be expressed. However if the debates are not kept within certain boundaries, they can become bogged down through obstruction tactics and it can thus become impossible, or at least excessively long, to have laws passed.

Faced with the increasingly imaginative development of such obstruction tactics, the French National Assembly has, since the latest constitutional reform, instituted a relatively detailed procedure for constraining debates which, of course, has met with criticism from the opposition.

This paper will first of all look at the methods of obstruction which have been developed in the French National Assembly and will then describe the new procedure for constraining debates which has been implemented since 2009. The ensuing discussion should enable us to assess this new procedure in the context of the experience of other parliamentary systems.

I – THE DEVELOPMENT OF OBSTRUCTION PROCEDURES

The term parliamentary obstruction refers to the extensive use of all the possibilities provided by the Constitution and the Rules of Procedure of the assemblies to have a parliamentary debate last longer and, if possible prevent, or at least considerably delay, the passing of a bill.

It is a practice which is known, in one form or another, in many Parliaments (the term “filibuster” was invented in the United States and is translated as “filibuste” in Belgium) and which is, of course, used by the opposition.

In concrete terms in France, during the Fifth Republic, obstruction, used by both the left and the right, is a set of tactics designed to delay, as much as possible, the passing of a bill.

The term “obstruction” is, of course, not mentioned in either the Constitution or the Rules of Procedure of the National Assembly. However it is hinted at in several articles of these documents which make provision for mechanisms to accelerate debate. The Rules of Procedure of the National Assembly even explicitly mention the case of an M.P. who “attempts to obstruct freedom of debate or of voting”.

Despite M.P.s having various limits placed on their total freedom of speech and action, they still have many means of obstruction at their disposal.

The continuing development of obstruction tactics over the last thirty years has led to a search for new ways to deal with what is considered by some to be a deadly disease and by others as a necessary evil.

1.Despite the regulation of debates the possibilities for obstruction remain

1.1An organization of debates which places strict limits on initiatives and on how M.P.S take the floor

This paper only deals with debates in plenary sitting as obstruction no longer takes place in standing committees. In the past, it was possible to use delaying tactics in a standing committee, especially through the proposing of procedural motions, but this is now impossible because such motions can no longer be proposed. It was also possible to obstruct by means of the tabling of a very large number of amendments. The aim of such tactics was to delay or stop the adoption of the report by the committee as this was, according to the Rules of Procedure, the necessary condition for the bill to be considered in plenary sitting. However, in 1984, the French Constitutional Council ruled that ignorance of the provisions of the Rules of Procedure, which do not in themselves have a constitutional value, concerning the content and the form of the reports would not in itself have the effect of rendering the legislative procedure contrary to the Constitution as the latter only requires a bill to be referred to one of the standing committees of the assembly before which said bill has been tabled. Since this time, the practice of obstructing at a committee level has had much less impact and has practically disappeared altogether.

1.1.1The Rules of Procedure of the Assemblies avoid anarchy

Unruly behaviour which goes against the Rules of Procedure is punished by disciplinary action:

-The type of physical obstruction which occurs in certain Parliaments has never happened in France and would be dealt with by the police powers falling within the remit of the chairman of the sitting who can actually have recourse to the use of force.

-No one can take the floor unless he/she has been permitted to do so by the chairman of the sitting. Any M.P. who so speaks without such permission is liable to disciplinary action.

-In a similar way, all forms of disturbance of the debates can be punished by disciplinary action which can lead as far as ejection from the entire Palais Bourbon (the Lower House of Parliament).

1.1.2Freedom of speech has quite strict rules

The main aim of obstruction is to extend the debates in plenary sitting. The means used to attempt to do this usually concern the lengthening of the time given over to speaking.

  • Procedural motions

The first weapon in the arsenal of obstruction is the proposing of procedural motions.

Originally there were three such motions: the ‘objection of admissibility’ whose goal is to prove that a bill would be contrary to the Constitution, the ‘preliminary question’ which is based on the fact that a bill would be useless or untimely and the ‘motion of referral back to committee’ which attempts to underline the insufficient nature of the work of the committee. If either of the first two motions were adopted then the bill was rejected whilst the adoption of the third led to the bill being re-examined in committee.

At the outset, the time given over to the proposing of such motions was not limited. The absolute record was reached during the proposal of an objection of admissibility which was defended for 5 hours and 25 minutes. After this ‘exploit’, the Rules of Procedure were modified for the first time in this field and a time limit of one and a half hours was imposed. Since that time, this limit has been reduced to 30 minutes during first reading and 15 minutes for subsequent readings.

In addition, the first two types of motion have been gathered together in a single one now called a ‘preliminary rejection motion’. Thus, along with the motion of referral back to committee, this is now only one of two possible procedural motions which can be proposed on each bill. It should be added that these motions, which are always proposed by the Opposition, have no chance of being adopted, except by accident in the case of the ruling majority being temporarily outnumbered numerically. This case has only occurred twice in the history of the Fifth Republic. It is thus primarily a way for the Opposition to gain extra speaking time at the beginning of a debate.

  • The General Discussion

At the French National Assembly, the speeches made during the general discussion, which, after the procedural motions,constitutes the first phase in the consideration of a bill, have never been marked by obstruction tactics. The reason for this is because these debates areorganized by the ‘Conference of Presidents’ which lays down an overall timing that is distributed between the political groups and the non-enrolled M.P.s.

-The discussion of articles

All of the speeches made by M.P.s during the discussion of the articles phase have maximum time limits imposed:

  • Speeches on articles were originally limited to 5 minutes but this has been reduced to 2 minutes. Their number however is not limited except through a closing procedure which allows the chairman of the sitting to interrupt the discussion once two speakers of opposing opinions have taken the floor.
  • For each amendment the following make take the floor: the author of the amendment, a speaker of an opposing opinion, the committee and the Government as well as a speaker to reply to the committee and to the Government, if the chairman of the sitting deems such speeches useful. In practice, the chairman systematically gives the floor to a speaker if he/she requests it and often allows several speakers to take the floor. These various speeches have also been reduced from 5 to 2 minutes.
  • Explanations of vote are of 2 minutes and have also been reduced from 5 minutes. These are allowed on the procedural motions and on the articles. However when they deal with an overall text, they remain of a 5-minute duration.

1.2These rules do not create an obstacle to the development of obstruction tactics

1.2.1Procedural incidents can take many forms

  • Points of Order

M.P.s who feel that the rules concerning the legislative procedure have not been applied, have the right to call the attention of the chairman of the sitting to what they believe to be the non-respect of such rules and may ask him to intervene.

This notion means that there is no restriction on the use of this right as long as the very legality of the deliberations is challenged. Thus: “Points of order and requests relating to the running of the sitting shall always take precedence over the main question; they suspend discussion of the question. Leave to speak shall be given to any M.P. seeking it for this purpose, either immediately or, if another M.P. has the floor, when he has finished speaking”.

The priority which is given to points of order explains why they are often diverted from their original purpose and are used to raise issues which have no real link with the agenda or with the Rules of Procedure.

A classic theme of points of order concerns the absence of a minister considered essential or the presence of a minister who is considered not to be ‘competent’ to deal with the issue. M.P.s also sometimes request the committee to interview a particular person whose view on the subject they consider necessary in order for the Assembly to be properly informed. Such points of order are easily dismissed by the chairman of the sitting who reminds the Assembly that, in the first case, it is the prerogative of the Government to decide by whom it is represented and in the second case, the committees are in control of their own proceedings. In addition, it is also quite frequent that M.P.s make reference, for as long a time as the chairman of the sitting permits, to events external to the work of the Assembly. This might be the case, for example, during the discussion of a bill dealing with social issues, when M.P.s could refer to social conflicts taking place in a company or demonstrations occurring in the country. Naturally, these points of order have no other influence on the debate than to slow it down, especially when there are a great number of them.

  • Suspensions of sitting

Such suspensions can be obtained automatically when they are requested by the chair of a political group or by the M.P. who has been appointed to represent the chairman of the group and their aim is to have the group meet. Nonetheless they are often requested with the goal, or on the pretext, of obtaining the communication of documents or of suggesting a new meeting of the committee for example.

If the suspension of sitting is used in a systematic way, it can represent an important factor in disorganizing parliamentary proceedings. If the chairman of the sitting is faced with several successive such requests, he/she may be led to disallow them by arguing in particular that they do not have the goal of leading to a meeting of the group. In all cases, it is accepted that it is the prerogative of the chairman of the sitting to set the length of the suspension and this period is often shorter than that which is requested.

  • Request for the checking of the quorum

In the French National Assembly, the Rules of Procedure state that “the House may deliberate and determine its agenda whatever the number of M.P.s present” and that “votes taken by the House shall be valid whatever the number of M.P.s present”.Nonetheless, a chairman of a political group may personally request the checking of the quorum before the beginning of a ballot. The quorum refers to the presence, in the precincts of the National Assembly, of an absolute majority of M.P.s calculated according to the number of seats actually filled. When the quorum is not reached the sitting is suspended.

Originally the ballot could not take place less than three hours afterwards. This procedure was thus often used to delay debate because it happens that in the National Assembly the quorum is never reached especially during sittings which take place in the evening. The length of the suspension was thus reduced to one hour and then, during the last reform of the Rules of Procedure, to 15 minutes. In addition, from now on, the majority of the political group which makes the request must be present in the Chamber. As, at the end of the suspension, the vote is valid whatever the number of M.P.s present, the request for the checking of the quorum has lost much of its interest as a means of obstruction and has thus ceased to be used.

  • Repeated requests for public ballots

Repeated requests for public ballots hold the debate up: when such a request is made to the chairman of the sitting, the latter announces it in plenary sitting and the vote may not take place in less than 5 minutes after such an announcement. The opposition thus takes every advantage of using this procedure. The record was brokenin a debate which took place in July 2004 when 126 public ballots were requested during the 141 hours which the Assembly gave over to the consideration of a bill.

1.2.2In order to maximize the speaking time in plenary sitting the main weapon is the tabling of a huge number of amendments

Since the speaking time on amendments is limited yet guaranteed, a most efficient means of obstruction in the National Assembly was developed usingthe tabling and the stout defence of a huge number of amendments (this is called the ‘flood of amendments’). Thus obstruction is fundamentally linked to the right to amendment.

To gain some idea of the extent of such a phenomenon one must look at some statistics on the records which have been broken concerning certain bills. The five bills which have seen the greatest number of amendments tabled during the Fifth Republic are the following:

03.10.2006 / Bill concerning the energy sector / 137665
20.01.2005 / Bill on the regulation of postal activities / 14888
15.02.2003 / Bill on the election of regional councillors / 12 805
03.07.2003 / Bill reforming the retirement regime / 11 153
20.07.2004 / Bill concerning the health insurance scheme / 8 495

If one observes the same statistics for equally controversial bills in the 1980s, one may obtain some idea of the development of this phenomenon:

13.02.1984 / Bill on the freedom of the press / 2 598
10.06.1983 / Bill concerning the reform of higher education / 2 204
26.10.1981 / Bil on nationalization / 1438
11.09.1981 / Bill on decentralization / 923

These figures can, of course, be seen as quite surprising and might even engender a certain admiration for the imagination of the authors of such amendments! However it is necessary to provide certain details which can help to clarify the original surprise. First of all, the right to table amendments is an individual right and the tabling of identical amendments is not prohibited. Thus the first strategy used to multiply the number of amendments consisted in visiting the photocopy machine! It is not infrequent that a same amendment be tabled by all the members of a political group and this, in the case of the main opposition group could amount to more than 200 amendments. After the photocopy strategy came the data processing strategy: it has become fashionable in recent years to table “serial” amendments. Such amendments have an identical main body but with a different date, or a modified interest rate or threshold and this means that the same amendment can be presented in a whole series of different versions.

It was precisely by bringing these two methods together that the record of 137,000 amendments was reached. The bill in question reduced the state share in the capital of a public company from 70 to 30 per cent. By modifying this percentage decimal by decimal and by tabling all such motions in the name of each of the members of the opposition, it was not so difficult to reach such a figure.