For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).
Thomas Perroud
Susan Rose-Ackerman’s journey into the labyrinth of executive policymaking accountability includes our joint article comparing the French and US cases. Building on our earlier collaboration and her recently published book, I reflect here on the French case and comment on Susan’s policy recommendations.
The book should encourage European scholars to think about the lack of democratic input into the rulemaking process inside the executive. Indeed, the major lesson of the book lies in the gap that separates Europe from the United States as regards participation in rule-making. The line is clear: in the three European countries under study (France, Germany, the UK), mandatory participation arose as a result of EU ]environmental law and a pan-European convention dealing participation in environmental matters (the Aarhus Convention). In other words, there is no administrative law principle equivalent to the notice-and-comment procedure in these countries (or even in the EU for that matter). This is a puzzle that makes one want to understand the reasons for the difference. For France, Susan highlights the fact that our culture very much believes that the administration represents the general interest. The cultural power of the administration in France, imbued with the idea of public service, is extremely strong. It chokes civil society, which is certainly not as well entrenched as it is in the US.
Delegated policymaking illustrates the cross-country differences. Susan makes a very thorough and interesting analysis of the different systems of delegation in the countries she studies. Comparatively, the French case stands apart. In contrast with the broad system of delegation in place in the US, or the UK system of statutory instruments, the promulgation of French ordonnances is problematic. Susan describes the mechanisms very well. Parliament votes on a statute enabling the executive to draft an ordinance that will be given the force of law only after Parliament has ratified it. Parliament agrees to give the force of a statute to a text that originates and is drafted in the administration. In the logic of the 1958 Constitution the purpose of the system is perverse because it precludes judicial review. Statutes could not at that time be challenged in court. If one is sensitive to the case made by Robert Kagan’s critique of the American style of policy-making characterized by endless litigation, then the French system is perfect because it ensures complete legal security to the policies made by the executive. However, if one thinks that judicial review ensures accountability, then the French system of delegation is problematic. The French choice is, on the whole, less accountable --as Susan shows, there is no equivalent to the notice-and-comment procedure in France -- and the ordinance system precludes judicial review. How can one explain this form of abdication? The French dislike of checks and balances is, to me, obvious. But the more I think about the peculiar characteristics of French administrative law, the more I tend to think that they can be understood only by invoking anti-parliamentarism. Anti-parliamentarism is extremely strong in France and tends to strengthen the administration.How else could one explain that France also stands apart from the other countries that Susan studies as having absolutely no issue with independent agencies? One even learns reading Susan’s book that there exists a democratic principle in the German Basic Law, and that, comparatively, such a principle is absent from the French constitution. There is one exception, however: the Constitutional Council was wary of too much delegation of rule-making power to these newly created independent agencies in the 80s and, therefore, established that the rule-making authority awarded to them could only be limited. The French society and political parties were pretty much indifferent to this new form of administration. Recently, however, signs of unhappiness with such agencies appeared. President Macron refused to renew the mandate of the president of the Competition Authority. Rumor has it that the President blames her for not talking enough with him on the decisions made by the Authority. Other such signs could be added to the list, showing that the current political atmosphere may not be as welcoming to this form of administration as it once was. At any rate, even if critiques have appeared, the model is not challenged. And, I repeat, these agencies, in France, do not abide by any notice-and-comment procedure.
My point about the French system reflecting anti-parliamentarism can also be proven by studying impact assessment. Impact assessment in France is required for draft legislation, as Susan explains, whereas, in the US, the White House requires it for administrative rules. I am not opposed to this feature of French public law. However, the result is very poor: the quality of legislative impact assessments in France is not consistent withthe original intent. It is also interesting to understand the politics behind such tools. Whereas, in the United States, cost-benefit analysis (CBA) is criticized for havingan anti-regulatory tilt, in France the original intent of such analyses has more an anti-parliament bias. The Conseil d’Etat, a big promoter of the tool, sought to limit “legislative inflation”. The rhetoric of inflation is addressed to the administration in the US and to the Parliament in France. It is made by politicians in the US, by the high civil service in France. Because the Conseil d’Etat never carried out a thorough analysis of the capacities of ministries to produce proper impact assessments (IAs), and also because the ministries’ resources for research have been curtailed in recent years, IAs are never useful policy documents and do not promote good practices.
In sum, if one were to draw up a scale of policymaking accountability between the countries under study in Susan’s study, I think France would be at the bottom. That’s why I completely agree with Susan’s reform agenda, and believe that its adoption would be especially important for France. She highlights seven elements:
1. Procedures for issuing rules that balance
competence and democratic values;
2. Better civil-service training and integrity;
3. laws that facilitate the establishment and
accountability of civil-society groups;
4. Balanced oversight of independent agencies and
quasi-private regulatory bodies;
5. Experimentation with alternative routes to
public participation in rulemaking;
6. Judicial review of the democratic efficacy of
the administrative process, supported by standing for non-governmental advocacy
groups; and
7. Improved legislative capacity to evaluate delegated authority.
I would like to comment on items 2, 3 and 6. The training of the civil service in France is bifurcated . There is a divide in the high civil service between the “corps techniques” (engineers) and the “corps généralistes” coming from ENA, the higher national school of administration). The first group has the technical knowledge to perform CBAs (Fran’e's most prominent economists come from engineering), but they are not at the centre of the policymaking process. ENA is the French School of government but does not provide much training in policy analysis. The French situation is therefore paradoxical and the poor quality of IAs could be explained by a struggle inside the high civil service for the control over policymaking expertise.
Integrity has also become a thorny question. Conflicts of interests in the high civil service have become deeply structural. Earlier this year a new legal provision explains the mechanism at play very well. The statute was called Loi du 25 mai 2021 pour une sécurité globale préservant les libertés. The statute privatized some policing functions but also contained a provision that drew my attention: the provision allowed retired policemen who moved to private sector jobs as guardians to keep their pension. So the civil service is incentivized towards more privatization. And, actually, privatizations have proven very lucrative for all the civil servants able to move into positions in the public companies with salary increases. A journalist has just published a book detailing damning examples that could undermine the integrity of the French public service. He published an earlier book detailing appaling practices in the Conseil d’Etat. Another journalist has entitled his book on the privatization of public assets by civil servants, Predation. The way out is not easy to design but clearly more transparency and accountability would help undermine the grip the high civil service has in France on policymaking.
I completely agree with Susan that laws should facilitate the establishment and accountability of civil-society groups. This is especially true for France. The foreign reader should be aware that the French civil society is very weak. Why is that? First of all, the State, as well aslocal governments, are too much involved in the financing of the press (through subsidies on press deliveries) and of major associations. Civil society depends on the State, which explains its lack of an adversarial posture towards politicians. Second, we have a very weak tradition of philanthropy. For instance, the nongovernmental organization (NGO) financing the action against the police on racial profiling was the OpenSociety Institute… in other words, a US billionaire is helping to preserve liberties in France. Third, we have no system of class action lawsuits that would fund weakly organized interests in society. The opposition towards class actions is very old and, up to now, no workable system has been put in place…
Finally, some words on judicial
review. Standing for NGOs has never been a complex question in France. It was
accepted at the beginning of the 20th century by the Conseil d’Etat. The
permissive standing doctrine, however, came with a price. In some case, the
Conseil d’Etat imposed its policies on the country through cases brought by
NGOs. Some cases allowed the courts to oppose municipal socialism instituted by
democratically elected governments. Susan
focuses on “judicial review of the democratic efficacy of the administrative
process”, but judicial review does not inevitably have that effect.
There has been an interesting development recently. The Conseil d’Etat held in a 2018 case that litigants could no longer raise procedural irregularities in a collateral attack to an administrative decision. The recent case law therefore undermines judicial checks on the administrative process.
Susan’s reform agenda would be a
very welcome improvement to the French administrative law. I can only hope it comes true.