I must reluctantly share with you a colloquial French expression: 'Il y a une couille dans le potage'. This translates, I'm afraid, as: 'There is a testicle in the soup'. Before
Scottish Review's more sensitive readers rouse themselves to denounce this Gallic vulgarity, I should add that the equivalent phrase in English is the one about the woodpile. Personally, I'd opt for the soup every time, whatever its ingredients.
What it means is that a serious problem has cropped up, a complication that potentially could throw the best of plans out of kilter. We will find out on Friday [14th] whether France's supreme Constitutional Council has adulterated the soup of Emmanuel Macron and Elisabeth Borne's widely detested measure to increase the state pension age in France from 62 to 64. The council will issue a judgement on whether the legislation, and/or the use of executive special powers to ram it through the Assemblée National when it was unable to command a parliamentary majority, is or is not an affront to the Constitution of the Fifth Republic.
For opponents who will tomorrow [Thursday] stage a 12th day of street protests and industrial action, this is pretty much the last hope of stopping the reforms, beyond sheer force of muscle, and there are strong signs that the latter course is faltering. If the council rules the government's actions to be unconstitutional, they are dead in the water. But, as I write, the prevalent view among academics and commentators is that a total prohibition is unlikely: that the council may object to certain bits of the reforms, but is likely to avoid the incendiary option of bombing out the whole package. That said, the council is not a body that the prudent lightly second-guess.
It is a very French institution, more easily defined in terms of what it is not rather than what it is. In broad function it resembles a supreme court, similar to the US model. But the title and trappings of supreme court are resisted, on grounds that pre-Revolution high courts were politically tainted and on a resistance to imported Americanisms (Britain is evidently untroubled by the latter scruple). Still, the purpose is pretty much the same: to hold public policy accountable to constitutional writ.
As a body drawn equally from the three branches of legislative authority, the council transcends all of them. Its nine sitting members, each serving a non-renewable nine-year term, are appointed three each by the President of the Republic, the President of the Assemblée National, and the President of the Senate. All living ex-Presidents of the Republic are entitled to sit on the council, though neither Nicolas Sarkozy nor François Hollande choose to do so, and Hollande has promised that he never will. The average age of members is currently 72, and they include two former Prime Ministers, Laurent Fabius (council president) and Alain Juppé. Collectively, they are known as
les sages, 'the wise ones', not wholly satirically.
For all the air of gilded antiquity surrounding the council's splendid premises in Paris's Palais Royal, it only dates from 1958 and its role has evolved since then. Certain kinds of law are examined automatically, while others can be referred for examination, most frequently by the parliamentary opposition. Any concerned party can petition the council to examine a measure, and ministers themselves sometimes pre-emptively refer controversial legislation. Lower courts can also refer issues. The closest the council comes to political comment is occasionally to criticise measures for being broad-brush rather than legally precise. It has also complained that too many essentially political disputes are being lobbed its way. Its strength lies in the perception that it is non-political.
An important part of the council's remit is to decide whether laws need parliamentary approval, or whether they can be enacted by government regulation, and it is this aspect of its role that looks most likely to trip up the Macron reforms. The report on Friday is expected to address two broad questions: are the reforms of a character and scale to justify being put to a referendum; and have the reforms been brought to the statute book by a process that pays proper deference to what the constitution calls 'the clarity and sincerity' of parliamentary debate?
On the first of these, if the council rules that Jean-Luc Melanchon's left-wing NUPES coalition is justified in calling for a referendum, its backers will still need signatures from 10% of the electorate – around five million voters – for it to go ahead. It is on the constitutionality of the measure and of its parliamentary passage that opponents are pinning their hopes – though, not unusually, the Prime Minister has also referred it for adjudication alongside the petitions from her opponents.
So, what could be the grounds for an adverse ruling? Perhaps the most promising are what are called
cavaliers sociaux (social riders), clauses tacked on to measures where their relevance is doubtful. These reforms were presented as amendments to the annual social security finance bill, which can be passed into law by executive decree: the so-called 49.3 provision. By convention, governments only get one other 49.3 per parliamentary session. Hence, Borne was able to detonate her 49.3 without sacrificing any further use that her minority government might need later.
The council has been vigilant in the past over what it sees as a growing tendency to piggy-back all sorts of items of questionable relevance as social riders. Opponents argue that pensions reform is such a case, since the pension reforms timetable would only overlap marginally with the social security budget year. Observers think the government may take some other minor hits on the riders issue, though perhaps not fatally.
More generally, opponents want the measure struck down on grounds of failing the constitution's requirement for parliamentary 'clarity and sincerity'. They argue that Borne and her colleagues used an formidable battery of procedural devices to limit scrutiny in parliament: notably Article 47.1 which sets a tight timetable for processing budgetary measures and restricted debate to just 50 days. This prevented completion of even a first reading vote in the Assemblée before the bill was shunted off to the upper house, the Senate. Again, the question: was this really a budgetary bill?
The trade unions, meanwhile, have called another day of disruption for tomorrow, purportedly to keep up the political pressure on the council. It is hard not to wonder whether this might be counter-productive, given the council's avowed independence from political influence. But it does underline the extent to which the council is the last best hope for opponents of the reforms. Win this one decisively, and they will critically undermine Macron's presidency. Lose, and there is nowhere else to go, beyond shouting into the wind on the Place de la Concorde.
If they do not carry the day in the council, keeping up the protests looks a pretty forlorn prospect. Already a similar pattern is emerging similar to the Gilet Jaunes' campaigns of a few years back. The huge numbers that took to the streets in the early stages have begun to subside, whereupon small radical groups are resorting to ever more violent and extreme forms of protest… which in turn deters more and more mainstream protestors from remaining involved.
But, to return to our distasteful opening metaphor, that is to anticipate the
plats et desserts that will follow on from Friday's report. What form those might take will only be determined once we know the contents of the entrée.
Keith Aitken is a journalist, writer and broadcaster
