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Home > English > The National Assembly in the French Institutions > Synthetic file 3
File n° 3
I. – setting-up and resignation of Government 1. – The establishment of the Government Although the choice of Prime Minister is a prerogative of the President of the Republic alone (it is difficult to imagine who might countersign such a decision), the appointment of ministers is carried out by the President of the Republic upon a proposal of the Prime Minister. Even if such choices are not subject to any conditions (e.g. there is no obligation for the Prime Minister or the other ministers to be parliamentarians) the correct working of the institutions and democratic practice do oblige the President of the Republic to choose a Prime Minister from within the majority party/parties in Parliament.
2. – Government resignation Article 8 of the Constitution states that the President of the Republic shall terminate the appointment of the Prime Minister when the latter tenders the resignation of the Government. Such a resignation may come about : ― As the result of a vote of no-confidence by the National Assembly on the Government’s programme or on a statement of its general policy (in accordance with article 49, paragraph 1 of the Constitution. Such a case has not, as yet, occurred) or of the adoption of a censure motion (in application of article 49, paragraph 2 of the Constitution. This procedure was in fact used in 1962) ; ― Systematically (following a presidential election) ; ― Voluntarily (in the wake of general elections or as a means of carrying out a large-scale ministerial reshuffle without actually changing the Prime Minister) ; ― By obligation and thus tantamount to dismissal by the President of the Republic (this case is only possible when the two heads of the executive belong to the same political family. The offices of the other members of the Government come to an end : ― If the Government’s resignation is tendered by the Prime Minister ; ― If the President of the Republic announces their dismissal upon a proposal of the Prime Minister. Such dismissal may be individual or collective (it may, for example, be applied to all the members of a particular movement within the governing majority) ; ― If an individual resigns.
II. – the status of members of the Government 1. – Rank The Government is made up of : ― The Prime Minister ; ― Ministers of State. This is an honorary title given generally to the heads of the main parties or movements within the governing majority. It provides them with precedence over “ordinary” ministers, from a protocol point of view. Nowadays they always head a ministerial department and the title of Minister of State Without Portfolio has disappeared ; ― Ministers. They head the administration placed under their authority but do not hold regulatory power (this is solely in the hands of the Prime Minister) ; ― Junior ministers. They report either to the Prime Minister or to other ministers ; ― Secretaries of State. They may either be autonomous (and thus have their own budget, power of countersignature and authority over their departments) or report to another minister. Generally speaking they do not attend the Council of Ministers. There is no limit on the number of members of the Government.
2. – Obligations and incompatibilities Members of Government must, in the two months following their appointment, make a declaration of their estate to the Chairman of the Committee for Financial Openness in Political Life. They must make a similar declaration within the two months following the end of their ministerial office. In addition ministerial office is considered incompatible with various other activities : ― In accordance with the principle of the separation of powers, a member of the Government may not simultaneously be a parliamentarian. Nonetheless such incompatibility only takes effect one month after the appointment of an M.P. or Senator to the Government. During this interim, the parliamentarian may not take part in votes but he remains, at least formally, a member of the bodies of the Chamber in which he sat prior to his appointment to Government. At the end of this one-month period, the President of the National Assembly formally records the termination of the parliamentary office of the minister and his replacement by the “person elected at the same time as him for that purpose”, i.e. his substitute whose name is communicated beforehand by the Minister of the Interior. This one-month period represents a kind of period of reflection during which the M.P. appointed minister may decide to remain a member of the assembly and thus resign from the Government. Beyond this period he may only regain his parliamentary seat if he is re-elected at a general election (in such a case, his former substitute who has become an M.P. may not stand against him) or if, during the same Parliamentary term, he is elected at a by-election held on account of the resignation of his substitute (no by-elections may be held during the final year of a Parliament) ; ― A member of Government may not hold a job as a public servant (civil servants entering Government are thus given the status of being “on secondment”) or as a private sector professional (including the liberal professions). It is also impossible to combine governmental offices with the position of being a representative on a professional body (including the Economic and Social Council).
3. – Individual responsibility ― Political Responsibility Each member of the Government is politically responsible for the actions of his administration. The fulfilment of this responsibility may lead to dismissal or resignation. ― Criminal Liability Ministers and secretaries of state are likewise criminally liable for all acts carried out in the exercise of their office if such acts are defined as crimes or offences at the moment they were committed. They are tried by the Court of Justice of the Republic which was set up in 1993 and is made up of 12 parliamentarians (6 M.P.s and 6 Senators) and three judges of the Court of Cassation (one of whom presides over the Court).
III. – the Prime minister 1. – The leadership of the Government The Prime Minister directs the operation of the Government (article 21 of the Constitution). He thus personifies and represents the Government and speaks on its behalf (during the presentation of its programme or the seeking of confidence for its policies in Parliament in particular). He carries political authority over the members of the Government. This is particularly displayed through his power of coordination of Government action, his power of arbitration when disputes between ministers occur and by his chairmanship of interministerial committees. His staff and the General Secretariat of the Government support him in the carrying out of his office. The General Secretariat of the Government prepares, along with the General Secretariat of the Presidency of the Republic, the agenda for the Council of Ministers and lists its decisions. It also refers drafts submitted to the Council of Ministers for advice to the Conseil d’État, seeks the signature of the Prime Minister on the presentation decrees for bills, follows the legislative procedure, publishes the laws which have been promulgated and the statutory texts which have been passed and organizes interministerial meetings.
2. – The power to make regulations The Prime Minister has the power to make regulations and to make appointments to civil and military posts (article 21 of the Constitution). It is thus his responsibility to make the regulations necessary to implement the laws. These regulations may be countersigned by the minister or ministers in charge of their application. These powers to make regulations and appointments are nonetheless shared with the President of the Republic in the case of decrees and nominations to very high positions decided in the Council of Ministers. They may be delegated to ministers but the latter do not possess such powers for themselves, having only the power of administration over their own ministerial department.
3. – The role of the Prime Minister in the legislative procedure The Prime Minister plays a central role in the legislative procedure. First of all, he is the only person in the executive branch to have the power to initiate laws. Secondly, because, to a large extent, he is in charge of running the procedure : he chooses the assembly before which the bill will be introduced, he has full control over the agenda of Parliament, he chooses the amendments to be tabled in the name of the Government, and he may decide to opt for certain procedures (declaration of emergency procedure, convening of a joint committee, block vote etc.). However in the course of the discussion of a bill, certain of these powers may be carried out by the minister directly concerned (right of amendment, block vote etc.).
4. – Other powers In addition to the aforementioned powers, the main power of the Prime Minister is the fact that he must countersign the acts of the President of the Republic (with the notable exception of recourse to a legislative referendum, the decision to dissolve the National Assembly, recourse to the emergency powers of article 16, as well as appointments to the Constitutional Council and to the High Council of the Judiciary). ― The other individual powers The Prime Minister may, without consulting the Council of Ministers :
In exceptional circumstances the Prime Minister may deputize for the President of the Republic in presiding over the Council of Ministers. ― The other powers shared with the President of the Republic Most of the powers shared by the two heads of the executive have already been presented (appointment of the members of Government, the power to make regulations and appointments to civilian and military posts). The only powers remaining to be described are those in the field of defence matters – the Constitution makes the President of the Republic the Commander-in-chief of the Armed Forces and grants the Prime Minister the responsibility of national defence.
IV. – The powers of the Government 1. – The conduct of the policy of the nation Article 20 of the Constitution provides the Government with the responsibility of determining and conducting the policy of the Nation. In practice, as the main decisions are taken in the Council of Ministers, this governmental power is, in fact, shared with the President of the Republic, when the Prime Minister belongs to the same political family.
2. – The exercise of legislative power by delegation The Constitution allows Parliament to delegate its legislative power to the Government by means of ordinances. There are several types of ordinance : ― Ordinances taken according to article 38 of the Constitution which allow the Government “in order to carry out its programme, to ask Parliament for the authorization, for a limited period, to take measures by ordinance that are normally a matter for statute”. Recourse to ordinance is impossible for provisions which fall within the ambit of the Constitution or institutional laws. First of all, the Government must have introduced before Parliament a draft enabling law describing the measures envisaged and the length of the delegation of power. Once the law has been passed the ordinances are submitted to a double procedural constraint :
Before the end of the capacitation period, a draft ratification bill must be tabled before Parliament. ― Ordinances taken in accordance with articles 47 and 47-1 of the Constitution. These deal with the case of Parliament not respecting the time limits imposed for the passing of the finance bill and the social security finance bill. This procedure has never been applied. ― Ordinances taken in accordance with article 74-1 of the Constitution. These represent the sole permanent delegation of legislative power. They allow the Government, in a variety of circumstances, to extend and at the same time adapt, the law of metropolitan France to its overseas territorial units.
3. – Extraordinary powers in matters of breaches of the peace ― State of Siege This deals especially with situations linked to war and insurrection. It has never been applied during the Fifth Republic particularly because the emergency powers granted to the President of the Republic under article 16 of the Constitution have largely taken away its need. The state of siege must be decreed by the Council of Ministers and its extension beyond twelve days requires the authorization of Parliament. It is characterized by a transfer from civilian authority to military authority. ― State of Emergency This deals with “the imminent danger of serious breaches of the peace or events which might lead to very grave circumstances”. As with the state of siege, the state of emergency is decreed by the Council of Ministers and its extension beyond 12 days must be authorized by Parliament (it was used in New Caledonia in 1985 and in metropolitan France in order to deal with the troubles in the suburbs in 2005).
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