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EXPLAINED: What is France’s Constitutional Council and how does it work?

France's Constitutional Council is set to once again take centre stage in a highly contentious political issue - but what exactly is the Conseil Constitutionnel and how does it work?

EXPLAINED: What is France's Constitutional Council and how does it work?
The entrance of the French Constitutional Council building in Paris. Photo by KENZO TRIBOUILLARD / AFP

The Conseil Constitutionnel is France’s highest authority on constitutional matters and routinely scrutinises new laws to ensure that they are within the spirit of the French constitution.

It’s set to be in the news again because of its scrutiny of France’s new immigration law. The law that was passed just before Christmas had several major amendments added as it passed through parliament, many of them significantly tougher than the original bill.

Language tests and migrant quotas: What the immigration bill means for foreigners in France

Many experts believe that several of the more eye-catching amendments – such as limits on citizenship for the children of non-French nationals or annual migration quotas – will be struck out by the Council. In fact, some insiders say that Emmanuel Macron’s government is banking on this, and accepted some of the more hardline amendments as the price of getting their bill passed, knowing full well they would be struck out later.

Either way, the Council is set to take centre-stage early in 2024 when it scrutinises the immigration bill.

It was previously in the news in April 2023 when it ruled on Macron’s pension reform – and saw riot police protecting the entrance the the Council’s building. 

What does the council do?

Founded in 1958 (the start of the Fifth Republic and the current French constitution) the council’s role is twofold; it scrutinises new laws or decrees to check that they are constitutional and it oversees all elections and referendums in France.

It’s not to be confused with the Conseil d’Etat (state council), which advises the government in advance on new laws and also acts as an arbiter in disputes between the state and members of the public – more on that here.

It doesn’t get involved in court cases – after various appeal courts, the highest court authority in France is the Cour de Cassation.

Who makes up the council?

The council is made up of nine people, who are known as les sages (the wise ones). You will sometimes hear them referred to as Les Sages du Palais-Royal or Les Sages de la rue de Montpensier, named after the street the council building is found on.

Members serve nine-year, non-renewable terms which are staggered so that every three years, three new members arrive on the council.

Members are invited onto the council – the president gets to pick three, the head of the Assemblée nationale (lower house of parliament) picks three and the leader of the Sénat (upper house) picks three. The idea is to have a balance of different politics, although les sages are supposed to be non-political and make their decisions based solely on legal and constitutional grounds.

They tend to be former lawyers, business people, senior civil servants and retired politicians. Ex presidents automatically get a seat on the Council, although they almost always turn it down. Former prime ministers don’t automatically get a place but they are often picked – the current council includes two ex-PMs – Laurent Fabius and Alain Juppé.

What exactly does it do?

Once new laws are passed through parliament, or new decrees published, they are passed to the Constitutional Council for approval – a bill cannot become law without this approval.

The council publishes a decision based on what the majority of them decide after private deliberations – notes on how these discussions went and who was for and against are kept, but are not available to the public until 25 years has passed.

They have three options; they can either approve a bill entirely, approve most of it but demand changes (known as censure) or reject it entirely.

The council has only rejected completely one bill in its 60-year history, but it’s not unusual for them to request changes on particularly contentious issues.

For example, during the pandemic they scrutinised France’s lockdown rules and other Covid-related restrictions and while most were approved the council ruled that it was unconstitutional to regulate gatherings in private homes – which is why Covid rules in France included only a recommendations that people keep gatherings in private to fewer than 10 people, not a rule.

This is why laws sometimes change between being passed by parliament and appearing on the statute books.

They examine both the bill itself and the process of it becoming law.

Once the Constitutional Council has ruled on something, there is no right of appeal.

What about the immigration bill?

The immigration bill had a complicated journey towards becoming law and changed drastically along the way.

The Macron government’s original bill attempted a ‘something for everyone’ approach, with tougher rules on integration, language tests for long-term residents and an easier expulsion process for foreign-born criminals, balanced against an amnesty for undocumented workers.

The bill, however, pleased no-one and was voted down by MPs in the Assemblée nationale before debates had even begun.

In order the save the bill, the government opted for a Commission mixte paritaire (CMP) which involves MPs from the Assemblée and Senators from the upper house working together to come up with a bill acceptable to both houses.

Because of the political makeup of the CMP, the final text of the bill was significantly rightwing – the amnesty for undocumented workers was watered down and left in the hands of local authorities while dozens of new amendments were added – many of them on subjects not even mentioned in the original bill.

These include limits on benefits for foreigners, an end to non-emergency healthcare for undocumented foreigners, limits on citizenship rights for children born in France to foreign parents and an annual migration quota.

It is these amendments that are most likely to be the subject of tough scrutiny by the Council, which reject some or all of them – or order changes to be made. 

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POLITICS

British PM promises ‘new impetus’ to French ties

Britain's Prime Minister Keir Starmer promised on Thursday to bring a "new impetus" to ties with France and to work with Paris to oppose Russia's invasion of Ukraine and end migrant-trafficking across the Channel.

British PM promises 'new impetus' to French ties

Starmer was to meet France’s President Emmanuel Macron later in the day for one-to-one talks on the sidelines of the European Political Community summit in Blenheim Palace, near Oxford.

In a piece published in French newspaper Le Monde to mark the meeting, the new British premier acknowledged Britain is no longer one of France’s EU partners, since the previous government left the union.

But, Starmer wrote, 120 years after the Entente Cordiale agreements resolving colonial disputes between Paris and London, “we are still bound by many things”, citing the G7 group, UN Security Council and NATO.

And he recalled the key role Britain and France have played as European military and economic powers in resisting Russia.

“I never thought, in my lifetime, that I would hear the rumble of war echoing across Europe. I never thought a leader would choose such an absurd and destructive path,” Starmer wrote.

“And yet, Russian President Vladimir Putin made this choice. Our determination to face it must never waver.”

Freshly elected at the head of a Labour Party government with a large House of Commons majority, Starmer also addressed the issue of cross-Channel migration, which has hurt ties in the recent past.

As prime minister, Starmer has already abandoned his predecessor’s efforts to expel asylum-seekers arriving in Britain by boat to Rwanda, but is still seeking a way to slow arrivals from France.

“A veritable criminal empire is today at work throughout Europe. It profits from human misery and despair, sending countless innocent people to their deaths in the waters of the English Channel,” he said.

“For me, this problem is no longer a challenge, it is a crisis. We will therefore work with France and with all our European partners to resolve it,” he wrote, vowing that Britain would respect international law.

The former senior lawyer stressed that Britain would continue to respect the European Convention on Human Rights, which the previous government had considered quitting.

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