Referendum in France: after the disavowal on pensions, what future for the RIP?

A French gendarme blocking access to the Constitutional Council on the day of his decision on the admissibility of the government law on pension reform, April 14, 2023. REUTERS - STEPHANIE LECOCQ

Text by: Igor Gauquelin Follow

14 min

The French opposition had hoped, to some extent, to perhaps be able to replay the "match" on the pension reform, by forcing the executive to a referendum of shared initiative (RIP) on the postponement of the legal retirement age from 62 to 64 years. But this only made it possible to note that this device was not functional. Should it be changed?

Advertising

Read more

Adopted during the constitutional revision of 2008 to allow the holding of referendums other than under the impetus of a president and a government, in 2023, the RIP has still not led to any consultation of the French.

It must be said that it had already been necessary to wait until 1 January 2015 to see the device, provided for by the current article 11 of the Basic Law, really enter into force, in the absence of an organic law allowing its implementation until 2013.

On Wednesday, May 3, 2023, the Constitutional Council had the opportunity to give a new impetus to this tool, but it did not. On the contrary, by their last two decisions concerning pensions, the Wise Men have put a possible stop to its use.

In the hope of countering the government's plans on pensions, two proposals for a referendum of shared initiative had been tabled by left-wing parliamentarians. The Council rejected the former on 14 April and the latter on 3 May.

In both cases, the Council considered that the applications submitted did not fall within the scope of Article 11, at the risk of making the criteria for holding such a referendum even more unattainable on paper.

« 

If we resonate in a general way, we can first see that there is only one proposal that has managed to pass the barrier of the Constitutional Council, it is that on the privatization of Aéroports de Paris ", recalls the lawyer Bertrand Mathieu, contacted by RFI. It was in 2019, and it should be noted, the latter had not passed the next step. "But what must be noted," adds the constitutionalist, "is that this procedure, and I say this, I believe objectively, is very poorly conceived. It was, it might be considered, designed not to really be used, and the use made of it shows its flaws.

►To read: France: the Constitutional Council validates the pension reform globally

It must be said that the oppositions in Parliament, in their fight against the pension reform carried by the government, had certainly hoped to be able to activate this lever, but with very relative hopes of success. Article 11 states that:

« (...) A referendum on a subject referred to in the first paragraph may be held on the initiative of one-fifth of the members of Parliament, supported by one-tenth of the voters registered on the electoral rolls. This initiative takes the form of a bill and cannot be aimed at repealing a legislative provision enacted less than a year ago. The conditions of its presentation and those in which the Constitutional Council controls compliance with the provisions of the preceding paragraph are determined by an organic law. If the bill has not been examined by the two assemblies within a period set by the organic law, the President of the Republic submits it to referendum (...) »

The objective sought by the opponents, in essence, did not seem far removed from an attempt to "repeal a legislative provision enacted less than a year ago". So the custodians of both requests had worked subtly.

First, their demands were filed before the president signed the reform into law. Then, in the first, the authors did not speak of repeal, but of a kind of sanctuarization of the legal retirement age at 62.

But the Wise Men considered that prohibiting legislation to raise the retirement age beyond 62 was not a "reform relating to the economic, social or environmental policy of the nation and the public services that contribute to it", as stipulated in Article 11, because it did not change the legal retirement age in force at the time for the Council to consider the request, for lack of... promulgation of the postponement to 64 years precisely. No change in the state of the law, therefore. And the Council rejects the idea that a legislator can tie the hands of the next by ordinary law.

« 

The whole question since the beginning of this debate on the referendum on the retirement age has been about the meaning of the word reform, confirms Mr. Mathieu. One could consider, in a very broad conception, that reform is an overall policy on an issue. But if we take the term in a stricter sense, a reform is what changes the state of the existing law. However, from the moment when the referendum bill can only be adopted before the law is promulgated, at the time it is tabled, it does not change the state of the existing law, since until the promulgation of the law reforming the retirement age, the retirement age is set at 62 years. The logic is relentless.

Decision No. 2023-5 RIP of 3 May 2023
Bill to prohibit a legal retirement age of over 62
[Non-compliance]
➡️ https://t.co/JX9qk1kV7W pic.twitter.com/SGeQ0loJRb

— Council of Constinence (@Conseil_constit) May 3, 2023

The second request partly took into account the risk that fell on the first. This time, the parliamentarians behind it imagined a second article in their proposal, to finance their return to 62 via an additional contribution from capital, and thus give a little more the appearance of a reform, in the sense that the Council could understand it.

Unfortunately, the idea of this second article did not convince the latter, who considered that this provision still did not create the conditions for economic and social reform within the meaning of Article 11. According to the Sages, this is a financial measure.

«

It was a little expected because there was case law upstream, notes Arnaud Le Pillouer, also a lawyer, contacted by us. But he could very well have had another reading. His freedom of interpretation probably allowed him to do otherwise, and that other way of reading things would have been to say that combined, the two sections made an economic or social reform, because saying that we will maintain the age at 62, thanks to a tax measure, is not quite the same as producing only a tax reform or simply maintaining the legal age of departure at retirement at age 62.

« 

The Council's position, however, is rather to protect government prerogatives. In general, I find that this is rather the general orientation of its jurisprudence, "justifies the constitutionalist.

►To read: Pensions: the second request for a referendum rejected by the Constitutional Council

"Close the door"

The Sages played their role fully. Even though the number of parliamentarians had reached the threshold of one-fifth sufficient to initiate the procedure, they said stop! So there will not even be an appeal to one-tenth of the electorate.

And even so, recalls Mr. Mathieu: if the Wise Men had validated the proposal, it would have been necessary to look for this tenth of the voters to support the idea of a referendum, a little more than 4.8 million people all the same.

And even if this second threshold had been reached, which was conceivable given the rejection of the pension reform, Mr. Mathieu as Mr. The Pillouer specify that the chambers of Parliament could still stop everything!

This is indeed stipulated in a sentence of Article 11 highlighted here: "If the bill has not been examined by the two assemblies within a period set by the organic law", only then does the president submit it to referendum.

«

In reality, it is mainly a question of forcing Parliament to take up a question, because at the end of the process of collecting signatures, it is in fact it that is seized, decrypts Mr. Le Pillouer. And if he does take up the issue, even if it is to reject the proposal, there is no referendum. In other words, a majority can still, according to Article 11, sit on a wish for a referendum expressed first by a fifth of parliamentarians, then by nearly 5 million voters.

To do this, it is sufficient for him to take up the matter in the National Assembly or the Senate within six months of the collection of signatures, the time allotted by the organic law. So if it does, even to bury the idea, no referendum is held.

As I feared, the Constitutional Council did not validate the RIP2 on the same staggering pretext as the 1st. This is why the executive hastened to promulgate the law in order not to allow the filing of a RIP 3 taking into account the opinion of the CC. We will try to...

— Eric Coquerel (@ericcoquerel) May 3, 2023

What is RIP used for? It "was not originally conceived as an appeal procedure against a decision voted by Parliament," says Bertrand Mathieu. And there, this is the first defect. Probably it would be necessary to consider that the RIP can not intervene on an object for which the law was voted and not promulgated for less than a year", enough to dissuade its misuse.

Second obstacle, continues the lawyer: the number of signatures. Why not lower it?, he puts forward as a track. But according to him, it is "the third defect", the last way to block everything in Parliament, which is "perhaps the most serious".

« 

There, we would probably have a significant democratic problem, considers Mr. Mathieu. Imagine if there were 6 or 7 million signatures, if Parliament merely examined the draft, without even voting on it, and pardon the expression, say 'come on, there is nothing more to see, there is no referendum'. One imagines that a political crisis could result.

In 2019, by validating a proposal for a referendum of shared initiative "aimed at affirming the national public service character of the operation of Paris aerodromes", did the Council not put itself in an uncomfortable position?

It is indeed in doing so that the opposition understood that it was possible to submit a proposal for RIP after the passage of a text in Parliament, but before its promulgation by the President of the Republic, to call for the ballot box.

This is the opinion of Arnaud Le Pilloueux: "It can be annoying for the government that on all the texts that it considers a little important, there are proposals of this type. And so, I believe that, as it had opened this door, the Constitutional Council, since then, is quite strict on the conditions of admissibility. You have to close the door, so to speak.

►On the front page of the French press review: R.I.P the RIP!

Should we switch to a system that no longer paves the way for just a referendum of shared initiative, but a real referendum of popular or citizens' initiative (RIC)? Or should we review the cursors while keeping the current system?

Is one-fifth of parliamentarians, 185 out of 925 (577 deputies and 348 senators), too many? 4.8 million voters to support their approach, isn't that extravagant? And above all, shouldn't this be more than enough to hold the election?

In fact, the "RIC", on the basis only of a citizens' petition to reach a certain number of signatures, is one of the demands that often recur in the French public debate, and the 2008 reform seemed to open the way.

But the fact is also that with the system adopted at the time, the orientation quickly evolved towards a more parliamentary initiative, and this from the very conception of the 2008 reform. A track also envisaged from 1993 by a committee of reflection.

Were we duped in 2008, to pass a constitutional reform desired by a Nicolas Sarkozy in search of three-fifths of Parliament, with a device having the appearance of a beginning of RIC and which was only a "carrot" to better accept the rest of the changes desired by the president, and in particular the possibility, for him the head of state, to come and speak physically before the parliamentarians gathered in Congress?

In June 2020, the Constitutional Council had itself drawn up a critical assessment of the RIP, judging the procedure "dissuasive and difficult to read". In the whole question of pensions, "I think that the Constitutional Council, we asked him much too much," says Bertrand Mathieu today, who remains convinced that with alterations, the RIP remains a good idea:

« In order to avoid proposals that can go a little in all directions, and with a kind of permanent agitation, I believe that the RIP procedure itself was a good thing, that is to say a sufficient number of parliamentarians, which we could indeed imagine reducing – we could go from 10% to 5% of parliamentarians, that would be a solution – but I believe that the process itself is a good formula. »

#RIP: "This second formulation was rejected by the @Conseil_constit because it was written by activists, not lawyers. I am committed to the referendum, but there is a distortion of the #RIP"@BrunoRetailleau #BonjourChezVous pic.twitter.com/XXf0PP7hic

— Public Senate (@publicsenat) May 4, 2023

Mr. Le Pillouer partly agrees: "We really took unimaginable precautions compared to other systems around us, I am thinking of Italy in particular. The fact of not being able to attack a law that was promulgated less than a year ago is strictly the opposite in Italy, there is an abrogative referendum that allows just that. And only 500,000 citizens can ask for a referendum," he said.

And to nuance: "So, it poses a lot of problems, this kind of devices, it raises a lot of difficulties. You mentioned the difficulty for a government to carry out a sustainable policy without being constantly questioned; Wecan also think that organized lobbies could constantly propose reforms.

In general, "I am not absolutely convinced of the relevance of the referendum," says Arnaud Le Pillouer, for whom this device can prove useful to democracy in some cases, as in 1992 with Maastricht, but also return to a very famous trend in France, namely the plebiscitary fact, which was abused by Louis Napoleon Bonaparte and Charles De Gaulle in the past.

« 

It is a device that, in any case, is in the hands of power, considers Professor Le Pillouer. What I am saying is that when we talk about a referendum, we believe that we are giving the people a voice, but above all we are giving the floor to the person who asks the question, because he reduces the problem to two options. The latter can not only ask the question he wants, when he wants, then hope to draw additional legitimacy in case of victory, thus personifying the debate.

More than the question of the modalities of organizing a referendum, our interlocutor prefers to raise what he considers to be the real heart of our French problem, to which "we are looking for remedies that are not": "We have a system today political, constitutional, dysfunctional" in his eyes.

In question, according to him: "The place occupied by the presidential election". "The fact that the President of the Republic thinks that, because he is elected, he has the legitimacy to implement public policies, seems problematic to me when he does not have a sufficient majority in the Assembly to make it vote. In a normal parliamentary country, since there was no majority in the Assembly to produce a government, several parties would have had to join forces to govern together.

This is what would have happened in Portugal, Spain, Italy, the United Kingdom, Belgium or Germany, in short in the large countries surrounding the France, after legislative elections worthy of those of 2022, where Emmanuel Macron's majority turned out, after all, relative and not absolute. Since then, this has led Prime Minister Elisabeth Borne to govern without a vote of confidence in Parliament, and to move forward with 49.3.

►Read also: Pension reform: after a major mobilization on May 1, what follow-up?

Newsletter Receive all the international news directly in your mailbox

I subscribe

Follow all the international news by downloading the RFI application

Read on on the same topics:

• France
• French politics
• Emmanuel Macron
• Elisabeth Borne
• Our selection