Brexit Institute News

The New French Immigration Law II: The Manipulation of the Constitutional Review Process

Théo Fournier (European University Institute)

1 – The use of constitutional review to stay in control of the media narrative

The immigration bill saga has brought to light President Macron’s strategic use of constitutional review to shift both media and public attention away from the sensitive turns in the immigration bill discussions. 

Since his election in 2017, Macron has shown a keen ability to master media narratives. His preferred tool has been organizing national public consultations, whether to reposition himself at the center of media attention (as seen in le Grand Débat National) or to defer decision-making on contentious issues (as evident in the Convention Climat and Convention sur la Fin de Vie). Since 2022, he has made a habit of announcing changes to his management style every time a serious crises occurred (political crises after the loss of the majority and the pension bill, social crisis with the 2023 summer riots).  The end of 2023 may signify a new phase in his strategy of diverting public and media attention. It marked the first instance of openly manipulating constitutional review for this purpose.

The accompanying graph illustrates the impact of constitutional review on media and public attention over time. The timeline indicates the salient political actions taken by the executive power. (Notably, the recent farmers’ protests are excluded as they were largely unforeseen.) The timeline spans from the immigration bill’s adoption on December 19th to the Prime Minister’s address to Parliament on January 30th. The blue line depicts the change over time in the number of searches for “immigration bill” (according to Google Trends) from the day before the bill’s adoption to the day after the Prime Minister’s address. These results track the fluctuation in interest in the topic. Higher values indicate greater interest in the Google search.

Figure 2 – Overview of the progressive loss of public interest for the immigration bill

 

The graph depicts a gradual decline in interest in the immigration bill from its adoption to the promulgation of the law. This waning interest appears to correlate with various political events over the past month. It’s difficult to imagine that this decline wasn’t anticipated by government strategists. 

The referral to the Council effectively halted proceedings for a month, allowing President Macron to shift focus away from the immigration bill and regain control of the media narrative. The timing of the referral, just before the winter break, provided an opportunity for Macron to change his government and appoint Prime Minister Gabriel Attal, whose youth naturally attracted media attention. Other moves such as the appointment of a media-savvy Minister of Culture and the postponement of the Prime Minister’s address to late January further diverted public attention. Macron effectively capitalized on what could be termed a “coattail effect,” diminishing the significance of the Council’s decision and the promulgation of the immigration bill in the eyes of the public. As anticipated, apart from a minor surge on the day of the decision, public interest in the immigration law remained minimal thereafter.

2 – “We are Politicians, not Lawyers”: Another occasion missed to strengthen rule-of-law culture and to fight illiberal rhetoric 

Ultimately, Macron’s strategy proved successful. The final version of the bill saw the removal of most sections added by the right, and the Constitutional Council upheld all sections from the government’s original project. Furthermore, the change of government triggered a coattail effect, diverting media attention from the immigration bill. However, the long-term impact of the immigration bill saga on the fostering of a rule-of-law culture raises questions worth pondering.

In a previous work, I defined rule-of-law culture as the general awareness of an institutional system based on rule-of-law. One component of rule-of-law culture is rule-of-law consciousness, meaning the general awareness that the constitutional system strikes a balance between majoritarian choices and protection of the minority. Institutions such as the President of the Republic, the government and the Parliament play a major role in the good diffusion of a rule-of-law consciousness. They do so, for example, by making sure the policies they push for, enact, and implement respect the constitutional rules and the jurisprudence of the constitutional court. 

In France, the implementation of certain norms is expected to foster a culture of rule of law.  For example, article 5 of the Constitution assigns the President the duty to “ensure due respect for the Constitution”. Article 5 gives to the President of the Republic a responsibility of exemplarity emphasizing the importance of leading by example. However, questions arise about the state of this rule-of-law culture when President Macron acknowledges, just a day after the bill’s adoption, that many of its provisions are unconstitutional.

Another example pertains to the government’s role. Since 1988, successive Prime Ministers, regardless of political affiliation, have instructed ministers to diligently identify and rectify any potential constitutional risks in proposed legislation. This practice has been instrumental in cultivating a rule-of-law culture within the state administration. However, concerns arise when the Minister of Interior argues that “politics are not about being a lawyer before the lawyers; [they are] about drawing standards and establishing whether or not we believe they are compliant”. 

These examples raise serious doubts about the commitment to a robust rule-of-law culture in France’s governance practices. Ultimately, electoral choices hinge on discourse. The far-right and right-wing narratives on rule of law are straightforward. They consider the decision of the Constitutional Court as evidence of a “government of judges” and advocate for a referendum on immigration as the solution to give power back to the people. The alternative discourse must unequivocally prioritize respect for the rule of law. However, the discourse of President Macron’s and the government is too ambiguous to effectively counter an illiberal rhetoric. One cannot advocate for the adoption of an unconstitutional law in Parliament while “at the same time”, condemning the right and far-right anti-rule-of-law rhetoric. 

As written elsewhere, “Who could be happy with such a poor showing, apart from the leader of the far right, who dreams of putting “the people” against “the judges” and blowing up constitutional and European safeguards to legalize discrimination and xenophobia, disfigure the Republic and discredit France?” 

 

Théo Fournier is a free-lance consultant in legal capacity building and executive training. He holds a PhD in comparative constitutional law from the European University Institute.

The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.

Image Credit: Ministère de l’Intérieur – www.interieur.gouv.fr, Licence Ouverte

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