What Is the Function of the Conseil d'Etat in the Preparation of Legislation?

British Institute of International and Comparative Law

What Is the Function of the Conseil d'Etat in the Preparation of Legislation?Author(s): John BellSource: The International and Comparative Law Quarterly, Vol. 49, No. 3 (Jul., 2000), pp. 661-672Published by: Cambridge University Press on behalf of the British Institute of International andComparative LawStable URL: http://www.jstor.org/stable/761401 .

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JULY 2000] Celebrating 200 Years of the Conseil d'Etat 661

and, again, one has to resort to "testimony" as a starting point for reflection.' As M. Galabert makes clear, there are a number of semi-formal, as well as informal, ways in which the Conseil has sought to engage with lawyers in other countries and this has led to changes in the local system. All the same, the local system, like that of Turkey, has developed in its own way. We are not faced here with

transplants, but with cross-fertilisation of ideas.2 The papers presented here were delivered to the UKNCCL Colloquium in

September 1999.

WHAT IS THE FUNCTION OF THE CONSEIL D'ETAT IN THE PREPARATION OF LEGISLATION?

I. INTRODUCTION

A. What are the Basic Problems: A Comparison with the State of the British Debate

Consideration of the Conseil d'Etat and its role in the preparation of legislation helps us in Britain to appreciate how our own legislative process might be

improved. The Hansard Society Report' suggested in 1992 that Britain needed to look beyond just improving the drafting of legislation and needed to reform the legislative process, both before a bill is presented to Parliament and in its passage through Parliament. My reflection on the French process is to suggest that this offers us a further focus of attention-the questions which should be asked during the scrutiny process. There are two areas where we need to ask questions-on fundamental rights and practical effectiveness. I think that the British trust too much to the political process to ensure that questions concerning respect for fundamental values and also administrative workability are addressed before a bill is passed by Parliament. This paper is influenced by observations made in 1986 of the Interior Section of the Conseil d'Etat in its scrutiny of a number of government bills at the beginning of the Chirac premiership.

The French process as comparator

It is traditional in Britain to look to the Conseil d'Etat for an example of how to conduct the process of drafting legislation differently and, it is thought, how to produce less complex texts. This has been the focus of the discussions promoted by Sir William Dale. Much has been written on this aspect. Such discussion focuses on the role of the Conseil as a legal technician. But the French process of

1. A summary of the international activities of the Conseil d'Etat can be found on its website: http://www.conseil-etat.fr. But the information given does not really enable the reader to assess the impact of the activity.

2. See my "Mechanisms for Cross-fertilisation of Administrative Law in Europe", in J. Beatson and T. Tridimas (Eds), New Directions in European Public Law (1998), chap.ll.

1. Hansard Society, Making the Law (Report 1992) (hereafter "Making the Law"). 2. See especially, Sir William Dale (Ed.), British and French Statutory Drafting

(Institute of Advanced Legal Studies, 1986).



662 International and Comparative Law Quarterly [VOL. 49

preparing legislation is distinctive in three other areas which merit perhaps more attention: consultation, parliamentary scrutiny, and scrutiny of workability before the Conseil d'Etat.

First, France has a very formalised consultation procedure.3 While the number of "consultation papers" has increased very significantly in recent years in the United Kingdom, there is usually no specific requirement as to whom the minister should consult. The Hansard Society Report notes that the number of consultative documents in the United Kingdom rose from 11 in 1976 to 232 in 1991. While some well-established organisations see no problems with the process, others are disconcerted, particularly by the short timescale for responses. The Hansard

Society comments that there should be guidelines on when and where to consult, which would make this an effective process.4 By in France, there are constitutional

requirements that the Conseil d'Etat and the Conseil Economique et Social are consulted on a wide range of legislation,5 and more specific requirements in a number of other fields. Such regular consultation ensures a systematic approach to scrutiny, rather than the serendipity of the British approach. The purpose is to secure a range of inputs from experts and from social partners in the formulation of policy. This is part of the corporatist approach to the State, which has been less prevalent in Britain.

Secondly, there is a distinctive process of parliamentary scrutiny. The technique of using a rapporteur and a committee process before the parliamentary debate

encourages Parliament to engage in a more systematic examination of the entire bill in committee before a full debate on the floor of the Chamber. In reviewing British parliamentary scrutiny, Griffith argues that it is designed to perform three tasks: to examine the text and amend it, to examine the minister, and to examine the Government and its policies.6 The French procedure achieves the same

objectives, but more clearly dissociates the first function from the rest. The committee report ensures that the text is examined in its entirety and is amended where necessary in the form of a committee revised text. This is more explicit and

systematic than the British committee stage, about which there is often the

complaint that the committee spends too much time on the policy and too little on the detail.7 As a result, many clauses, especially later in the bill, will go undiscussed. There is also the complaint that the text of UK legislation is designed

3. "The Role of the Conseil d'Etat in Drafting Legislation". A full description of the process of preparing bills from policy making to the final text can be found in J. Fournier, Le Travail gouvernemental (1987), Pt.III, chap.2. See also B. Ducamin (1981) 30 I.C.L.Q. 882, at pp.889-891; L. N. Brown, "The Participation of the French Conseil d'Etat in Legislation" (1974) 48 Tulane L.Rev. 796.

4. Making the Law, op. cit.. supra n.1, at p.105. 5. Under Art.39(2), all Government bills (projets de loi) are submitted to the Conseil

d'Etat for an opinion, and under Art.37, all autonomous decrees are approved by it. Under Art.70(2), all measures of an economic or social character are submitted to the Conseil Economique et Social.

6. Parliamentary Scrutiny of Government Bills (1974), p.232; Making the Law, op. cit., supra n.1, at p.310. For an account of the French parliamentary committee process see D. Le Vert, in Sir William Dale (Ed.), Preparation and Accessibility of the Written Law in France (Statute Law Society, 1993), pp.24-32.

7. Making the Law, op. cit., supra p.316.



JULY 2000] Legislative Function of the Conseil d'Etat? 663

to ease its passage through Parliament, rather than to aid comprehensibility." The French do not altogether escape this, since all governments adopt tactics to get their text adopted.9 But the role of the French parliamentary committee in coming up with its own text gives it greater latitude than a British committee and prevents it running out of time before its scrutiny role is completed (even if the Government can still insist that Parliament votes on the text it submitted).

Thirdly, scrutiny in committee before the Conseil d'Etat focuses on the broader

legal acceptability and the administrative workability of legislative proposals in a far more formalised way than exists in the United Kingdom. In a sense, our

systems are designed to ensure that there is technical legal expertise in drafting and scrutiny of political policy. But the examination of legal and administrative workability is left to the civil servants in the promoting department and to the

range of lobby groups who may have been consulted at an earlier stage in the preparation of the legislation, or who spot problems during its progress through Parliament. The argument in this paper will be that the scrutiny before the Conseil goes beyond issues of strict legality to take account of the concern of the Conseil for effective administration.'0 The point made by Letourneur and his colleagues was that the Conseil has a wider remit than just to be a legal adviser. As such, its role is much closer to that of the Attorney-General than parliamentary counsel:

The Conseil has always recognised its duty not to limit itself to the role of legal adviser in the strict sense, but to be an adviser in the fullest sense, guided by its multifarious experience of the administration which arises both from its knowledge of the life of many government ministries and the concrete experience of its members."

If that broader role is well established in the literature, what I hope to show in this article is that concerns voiced in this country about the legislative process need to focus more carefully on the different types of scrutiny which measures need to go through. The message is that we improve the legislation by establishing a set of frameworks within which certain pressures can be brought to bear on the process of formulating the text. The cumulative effect of the different processes structures the decision-making and produces a result which is more (politically and administratively) acceptable.

B. The Stages in the Process Before the Conseil d'Etat

There are at least three distinct phases to the process of scrutiny before the Conseil d'Etat which do not have the same function namely:

1. The essentially private consultancy role of the rapporteur sent from the Conseil d'Etat to work with the staff at the ministry. This is very much an advisory and

8. See G. Engle, " 'Bills are Made to Pass as Razors are Made to Sell': Practical Constraints on the Preparation of Legislation" [1983] Stat.L.R. 7.

9. For instance, the projet de loi on the Code P6nal had two short articles and the entire Code in an annex, no doubt to ease the voting procedure on the floor of the Chamber.

10. A similar comment is made by M. Rendel, The Administrative Functions of the Conseil d'Etat (1970), p.231.

11. M. Letourneur, J. Bauchet and J. M6ric, Le Conseil d'Etat et les Tribunaux Administratifs (2nd edn, 1970), p.181.




predominantly a technical drafting role, helping to turn the political and administrative objectives into legal prose.

2. The second phase involves the public scrutiny of the outcome of this process. The rapporteur already changes position here. He introduces the proposals to the rest of the Conseil and interprets the objectives.'2 But the government has its own representatives (commissaires du gouvernement) to argue a particular position and to answer criticisms. The debate has the function of identifying issues which need resolution and which are not principally textual. A detailed scrutiny at this stage enables the bill to be refined through discussion and to be technically ready for policy debate in Parliament.

3. The debate in the Assembl6e performs yet another function: of widening the scrutiny of general principles to a less well-briefed audience but which can try to insist on major issues being addressed.

My concern is principally with the second stage, though many of the questions often re-surface in the third stage. These two stages occur between the kind of discussions that would happen in Britain between Parliamentary Counsel and the department's lawyers and civil servants, and full discussion in the legislation committee of the Cabinet.

II. PARTICULAR FUNCTIONS OF DEBATE IN THE CONSEIL D'ETAT

The Conseil d'Etat performs a number of functions. Some of these are aimed at

improving the drafting in a technical sense (section A), but this is mainly the role of the rapporteur. More importantly, the debate in the Conseil is designed to

clarify the objectives of the legislation and to integrate it within the other

objectives which the law pursues through other texts (sections B and C). This involves a task of probing and scrutiny not only of the text, but also of the

objectives which the ministry wishes to pursue. Finally, as the broader adviser to the government and guardian of proper government, the Conseil examines the

way in which a text respects fundamental values and is administratively workable

(sections D and E).

A. Redrafting

Drafting involves first understanding and analysis, then design and composition, and thereafter scrutiny.'" Although the rapporteur has been through this process before the bill is presented to the Conseil, the Conseil itself has to go through the first two stages in order to undertake the last. There are serious attempts to redraft

orally in debate in the Conseil, though the fact that the process is spread over several days allows matters to be deferred before a final version is presented. The members of the Conseil are not expert on the subject, unlike the rapporteur. This enables them to identify matters which are not obvious to the ordinary reader and where re-arrangement will help.

A particular problem of French texts is that they are more concise than British texts. A number of things are left to surmise, rather than specific statement. While

12. See M. Oudinot, "Le r1le du Rapporteur devant les Formations Administratives du Conseil d'Etat", in Livre Jubilaire (1952), p.403: "the task of the rapporteur is to place at the disposal of the formation which he has to help with complete information on all points."

13. See D. Miers and A. C. Page, Legislation (2nd edn, 1990), chap.5 for a very clear account of the process.




setting clarity as an ideal, the British tradition compromises this in favour of certainty. Even the Hansard Society comes down in favour of this approach continuing:

We ... recommend that draftsmen should always seek for clarity, simplicity, and brevity in their drafting, but that certainty should be paramount."

The French also have a tradition of implicit understandings. The Conseil does not like saying things in too many words. What is obvious need not be stated. There is a tendency to leave specific detail to implementing decrees or often to inference.15 In a comparison I made of the draft French Penal Code introducing criminal liability of corporations and the Law Commission's Criminal Code provisions on the same subject, the French text used 65 words, the English 594 words. Far more is left to the reader to infer from general knowledge of the law and the meaning of legal terms in the rest of the law. The French have no equivalent of the Interpretation Act 1978 which defines commonly used terms and resolves commonly arising issues of interpretation.'6

The French would typically avoid drafting an interpretation section, defining terms, and a repeals schedule which lists the changes which are made to other legislation. The result can be confusion. In one case I observed, six different interpretations were offered for the amended version of an article of the Code of PTT that a particular bill was supposed to effect. The ministerial representatives produced four different wordings themselves. In view of the importance of ?be matter, the Conseil was able to insist that the re-wording was spelt out in the text. On the other hand, the Conseil was able to say that some provisions were unnecessary to spell out (e.g. on minimum sentences for crimes), as they had little legal effect and would only generate unnecessary debate in Parliament.

There are thus limits to implicit drafting and the Conseil has to judge where problems will arise and when they will not.

B. Clarifying

French projets de loi are presented to the Conseil with an explanatory memorandum briefly explaining the purpose of the legislation and of the particular clauses. British legislation has similar explanations which focus on the meaning of particular sections. But such statements of principles are necessarily general and the problems occurring before the Conseil focus on the aspects which such memoranda gloss over.

The perennial problem identified in all countries is the brief timescale available for the drafting of legislation. As the then first Parliamentary Counsel, Sir Henry de Waal put it, "the principal pressure on the draftsman seems to follow from late

14. Making the Law, op. cit., supra para.221. See also Viscount Cranborne, Leader of the House, 559 H.L. Deb. 1322 (14 Dec. 1994): "legislating merely by laying down general principles is in most cases unlikely to provide the certainty which Parliament and the public should expect."

15. See B. Ducamin, op. cit., supra n.3, at 894-895, and Sir William Dale, op. cit., supra n.6.

16. Contrast the strong arguments for this kind of Act made by the New Zealand Law Commission, Report 17 A New Interpretation Act. To Avoid "Prolixity and Tautology" (1991).




instructions, short deadlines and sudden and quite elaborate policy change."17 The draftsman then does not always have time to turn the political policy into adequate and straightforward legal text which will survive the parliamentary process. Unlike the French parliamentary process where the committee produces its own draft (often re-ordered), the British procedures do not allow for restructuring and major redrafting once the bill is submitted. In one go, we try to get an individual, the Parliamentary draftsman, to tease out of the political department the full scope of its proposals and then to turn them into a coherent and straightforward text. The text will be debated in Cabinet committee, but here the principal concern will be the alignment of the text with political policy in the general sense. The British system presupposes that a set of instructions can be produced by the department which can then be turned by an individual into a text, which is then refined by further discussion with him (and possibly later with political superiors).

From my observation, the French are more aware of the incomplete state of policy formulation in the legislative process. The role of the rapporteur sent from the Conseil to work with the ministerial team in producing a text mirrors that of parliamentary counsel. An individual is required to get under the skin of the policy and turn it into a coherent text. But when that text is then submitted to an administrative section, the group discussion, led by the President will often seek to clarify the policy. There will be a number of hypothetical cases thrown out to test oirt the principles and the wording of the rules and, in this, the policy of the government will be more articulated. In one debate I witnessed, only four articles of a draft loi were discussed in three hours. A classic example might be the issue of dealing with terrorism. There might be broad agreement on the policy that more strenuous efforts need to be directed to prosecuting and punishing terrorists. But when it comes to formulating a legislative text, you come to difficult questions such as "what exactly is a terrorist offence, as opposed to any other offence?" "what are the real threats to an effective trial and how can these be removed by a legal text?" The tension between the political imperative that "something must be done" and the practical question of "what can realistically be done through a legal text, as opposed to some other form of administrative action?" is played out in the debate. Quite often the commissaires du gouvernement will have to go out to obtain new instructions as problems are raised.

C. Integration One of the major functions of any draftsman is to link the text before him to the rest of the law. While the politician has to ensure a specific policy is implemented, the draftsman has to see the wider picture into which that policy is going to fit. The politician is keen to see policy implemented and may view this in isolation. Given

17. [1989] Stat.L.R. 211; also Making the Law, op. cit., supra n.1, at para.173 which points to the danger of bills going to Parliament half-baked. A similar point is made by B. Ducamin, op. cit., supra n.3, at p.886 where he shows the speed with which the Conseil is asked to work in its consultative process. Certainly the period I observed in the Conseil from Mar. to Jul. 1986 followed immediately on a change of government and many bills were rushed through the summer parliamentary session in order to pre-empt a premature dissolution by the President.




the speed with which bills are drafted in both the United Kingdom and France, it is

easy to see how the task of integration can be omitted. Yet the law operates as, supposedly, a coherent set of instructions to the citizen. The draftsman has to ensure that a semblance of coherence is achieved.

I have already illustrated that the French style of text may not facilitate this. In debates before the Conseil d'Etat, it is concerned to see how the text fits into the law broadly conceived. Reference is made to the decisions of the courts and of the Conseil constitutionnel. The concern is to ensure that the text integrates with the law as it is interpreted. There is obviously the issue of respect for the hierarchy of norms, such as EU and constitutional requirements."' But the draftsman needs to attend to the combination of texts and case law with which lawyers have to work, so that the citizen and his lawyer can understand what is novel in the legislation and what remains fundamentally the same. In addition, the approach of the Conseil considers not only the law, but also administrative practice in implementing the law, e.g. how sentencing operates or how illegal immigrants are treated. The concern here is with workability and with necessity. Is administrative practice deficient? Will the proposal run counter to it or not?

D. Ensuring Safeguards are Met

Under the Human Rights Act 1998, ministers will have to certify that their bills conform to the European Convention on Human Rights. In Scotland, they will have to certify that they comply with the Scotland Act 1998. It is not clear how ministers will have reached that level of assurance. Even before the 1998 Act, concern has been expressed on the issue of how constitutional safeguards are scrutinised. The Hansard Society suggested that this was the role of a Cabinet committee:

We recommend that the Legislation Committee of the Cabinet should be given the wider and long-term role of ensuring that bills conform with the best constitutional principles and, where appropriate, that they have been prepared after full and genuine consultation.'"

But that is very much to follow the British tradition of leaving the respect for constitutional rights and procedures in the hands of politicians.

No doubt marked by the Vichy experience, the French have ensured that fundamental constitutional principles are respected through the procedure of obtaining the opinion of the Conseil d'Etat. Its function is broader than that of the Conseil constitutionnel which may be called upon to examine the constitutionality of lois passed by Parliament. The Conseil d'Etat looks to see not only if constitutional values and procedures have been observed, but also whether treaty obligations, such as the Geneva Convention on Refugees or the European Convention on Human Rights, and EC law have been respected. It is certainly noticeable that the debates in the Conseil d'Etat focus on the decisions of the Conseil constitutionnel and try to anticipate them. Of course they can be wrong,

18. See B. Ducamin, op. cit., supra at p.895. 19. Op. cit., supra n.1, at para.195. The suggestion was to assign one member of

Parliamentary Counsel to the Attorney-General's department.




noticeably on the nationalisation legislation in 1981. But it is known that the Conseil constitutionnel secretariat does often obtain a private copy of the Conseil d'Etat's advice and members of the former are often members of the latter as well. There is thus an informal system of collaboration on giving constitutional advice. The existence of a later formal institution of review such as the Conseil constitutionnel gives the Conseil d'Etat extra authority in its advice in this area. The government knows it is running a risk if it ignores the advice it is given, especially as the confidential advice may well leak out to the opposition which may use it as part of its grounds of reference to the Conseil constitutionnel.

But in areas such as criminal procedure or immigration, there are broader issues involved and here the legal advice of the Conseil comes closer to that of the Attorney-General in Britain. Ministers are concerned with the domestic impact of their policies and achieving them through the mechanisms available to them. The constitutional and other legal safeguards are constraints on the way the majority can proceed when it has a temporary hold on the reins of domestic power. When privatising television, ministers are concerned with making the policy work. When confronted with constitutional principles on transparency and pluralism, they may find that they cannot achieve what they want. Both in the United Kingdom and France, criminal procedure offers a fertile area for a conflict between constitutional principles and political imperatives. We have been reminded of this recently in R. v. Director of Public Prosecutions, ex parte Kebilene20 in which the Divisional Court claimed that provisions of the Prevention of Terrorism Act 1989 which allowed inference of guilt from the silence of the accused during police questioning breached the European Convention on Human Rights. Though this was not accepted in the House of Lords, the issue was clearly one which should have been examined more thoroughly at the pre-legislative stage. The Conseil has had similar concerns in other aspects of criminal procedure. The Conseil's function is to remind the government of the fundamental principles of fair

procedure, such as the right to an advocate, the right to reasons for decisions and to equal treatment, as well as proportionate penalties which may have a lower priority with the administration. In contrast to the public embarrassment of censure by the Conseil constitutionnel or by the European Court of Human

Rights, the Conseil d'Etat offers the government a private session of advice and a chance to retreat.

The Conseil d'Etat is not only guardian of fundamental rights and principles in this process. It is also guardian of procedures. In one case I observed, the section sent the ministry representatives packing once the President had asked whether the Conseil Economique et Social had been consulted and discovered that it had not. This particular hurdle was not trivial in that this requirement prevented the legislation being presented to the spring session of Parliament, when the bill was finally able to be presented to the autumn session, it encountered much more public hostility and demonstration than would have happened in the summer.

20. [1999] 4 All E.R. 801. See also R. v. Secretary of State for the Home Department, ex p. Simms [1999] 3 All E.R. 400 and Rantzen v. Mirror Group Newspapers (1986) Ltd [1993] 4 All E.R. 975 as an example of the influence of the Convention on the interpretation of statutes and DPP v. Jones [1999] 2 All E.R. 257 for its influence in interpreting the common law.




E. Translating Policy into Law-Workability

Turning political policy into legal terms is difficult. The Conseil d'Etat is concerned about the language used so that it will be effective in translating the

policy. It has long been recognised that the legislative text has to meet the concerns both of the parliamentary (and thus political) audience, as well as the

lawyers who will have to implement it. The political audience likes to see clear statements of policy. The lawyer likes to see sentences that have practical effect. Thus an introductory article to a bill which states "Broadcasting shall be free" is

high on political rhetoric, but devoid of legal effectiveness. Like Parliamentary Counsel, the Conseil d'Etat rejects such statements.21

The function of the Conseil d'Etat as general adviser to the Government allows it to raise questions not just about technical effectiveness in law, but also about

workability. The Conseil has a wide experience of the administration in a way which is not true of Parliamentary Counsel or, even, of many government ministers in the United Kingdom. Because they are a permanent corps of career administrators, writers like Letourneur argue that the Conseil can take full liberty with the text submitted, provided it does not trespass on the political merits of the

proposal:

In practice, the administrative sections have always recognised for themselves the same powers in relation to the text submitted to them as the minister who formulated it. They can therefore completely overturn its presentation and even its structure, returning it to the government as lacking merit or, more simply, on the ground that the amendments made have destroyed the internal coherence of the text.22

Now this can be interpreted as saying that the Conseil can simply find the text so incoherent or so much in need of amendment that the proposed text needs rethinking. But I think the idea is more radical. In the first place, there is the question whether legislation is necessary at all. For example, in order to prevent illegal immigration, one might argue that, instead of imposing criminal penalties on illegal immigrants, the government should be looking to improve administrative action in the exercise of existing powers. Is the criminal penalty really going to achieve the desired objective? Is an automatic sanction appropriate, or is it always going to be necessary to exercise discretion in individual cases? Should sanctions for illegal immigration apply to people coming from all countries, or should the law be selective, especially in view of rights of asylum? How easy will it be to evade the rules in the bill? Such questions do not question the political objective

21. Cf Sir Noel Hutton, "The Mechanics of Law Reform" (1961) 24 M.L.R. 18, at p.21: The same document has to be designed to satisfy two distinct legislative audiences: first (in point of time) the parliamentary audience, mainly composed of laymen, whose primary need is to ascertain, with the minimum of labour and preferably no reference to any other document other than the bill itself, what is the general purpose and effect of each clause or section which they are asked to pass; and secondly, the expert lawyer and other professionals who will seek to find in the Act passed a specific answer to each specific question upon which they have to advise or decide. One customer wants a picture and the other wants a Bradshaw.

22. Op. cit. pp.75-76. Cf. M. Rendel, op. cit., supra n.10, at p.231: "The Conseil d'Etat, in its work of drafting, is concerned with legality in the widest sense of conformity with law, with desirability and with efficacity."



670 International and Comparative Law Quarterly [Vot•

49

of preventing illegal immigration, but they probe whether the chosen means are really going to work. There may equally be serious probing of the realism of the assumptions on which the bill is based. For example, in privatisation, a proportion of shares might be specified for employees of the enterprise to buy. The Conseil might question whether the proportion in question is too high-is it realistic to think that anything like that number of shares will be bought by employees? Is the bill going to fail to achieve its objective in this aspect, and is there something else which could be done which is more realistic? When establishing a new Commission, the Conseil might be concerned to ensure it will be able to function as intended, in terms of its procedure and remit.

I have certainly observed the Conseil make it very clear to the government that it did not consider a particular piece of legislation to be necessary at all, nor did it think it would work. But the Conseil does not act purely in a negative mode, identifying weaknesses and shortcomings. Like a good adviser, it is prepared to make suggestions for an alternative mechanism to achieve what the government wants. It is concerned to identify legal and administrative means for achieving a policy which the government wants, rather than commenting on the policy. Of course, it is up to the section to decide when it wants to be this helpful and when not.

I did observe situations in which the Conseil raised concerns about the way a proposal would work because it touched on the relationship between civil and administrative courts. The debate was lively because it was something which touched on the special concerns of the Conseil and it almost had a vested interest. In other cases, the debate was less agitated. It would be wrong to expect a

generalist adviser to be able to give the same quality of attention to all issues. The key to successful scrutiny is a variety of processes each of which brings to bear a different kind of scrutiny.

Now the government can take the Conseil's advice or leave it, and the weight of the advice depends on the area of activity on which comment is being made. Where the legislation touches on matters in which the Conseil has experience, or where it is pronouncing on fundamental rights, then its voice is more authoritative than in other areas. But this does not prevent it making suggestions that bring what is said in the legislation into line with what is likely to happen in practice. For instance, criminals never serve a full sentence, so the suggestion might be made to

bring the sentence in the bill into line with the typical length of sentence which criminals are likely to serve.

The Conseil thus can seek justifications for the necessity of legislation in all cases, and it can offer more detailed advice in areas where it or its members have special knowledge. The Conseil d'Etat gives the impression of administrative

pragmatism and realism that serves to temper the political rhetoric and gestures embodied in much legislation.

The role of the Conseil fits into the general role of its members as advisers to

government (in ministerial offices or outside). They are often used as sounding boards for ideas, so that it comes naturally in a formal setting that a similar constructive, even collaborative approach is adopted."ZThere is also the sense that

23. See M. Rendel, op. cit., supra n.10, at pp.61-62.




the corps is a senior (if not superior) branch of the civil service which has a mission of supervision over the rest.

III. CONCLUSION

This paper has argued that the Conseil's role in the process of preparing legislation for Parliament is distinctive and helpful. It is not perfect, and it is uneven in the issues which will be given much attention. It contributes to a network of processes. The distinctive features are that there is a formalised scrutiny of the ways in which the legislation respects safeguards of fundamental freedoms and constitutional procedures, and that issues of workability are examined by a non-political audience. The British have not traditionally been as sensitive to constitutional issues as legal issues. Such issues have been traditionally seen as political. The growth of the European Union, the devolution legislation and the Human Rights Act 1998 will change that and we have to reflect how we ensure that such matters are properly examined. At the moment, we rely on the Attorney-General's Office and the equivalents in Scotland and Northern Ireland. The issue of workability is one which we do not obviously consider, except in the consultation phase and in the internal workings of the proposing ministry. Perhaps the French have a more openly politicised bureaucracy and thus need arbitration on internal civil service debates. I think there is an area here upon which we could usefully reflect in the review of our procedures.

Rendel argues in her conclusion that the Conseil is not totally deferential to parliamentary and government policy. She argues that the Conseil can develop policies of its own, though most of the time it is putting its skills at the service of the Government. Its experience, unlike that of Parliamentary Counsel, is not merely on legal niceties. It has a sense of the practicalities of administration, the importance of law, and the fundamental legal skills to administer the State, i.e. how to use the law to make the State work.24

The Conseil is able to perform its role partly because of the formalised character of French pre-legislative consultation which gives it a regular voice. As a judicial body, it has authority in giving legal advice on the protection of fundamental values and the broader legal context into which legislation will have to integrate. It has complementary knowledge and skills to the ministerial civil servants who are aware of the policy objectives which are to be pursued. As a body of senior administrators, some with experience of work in ministries, it is uniquely placed to cast a critical eye on the administrative arrangements which are proposed and to suggest where they might not work.

Now these are unique features of the French situation which are not replicated anywhere else in Europe. There is not the equivalent kind of body in the United Kingdom and so we have to think of the best mechanism for raising the questions. Some efficiency check is our kind of way forward, and this probably means examining the kind of scrutiny to which bills are subject before the Cabinet committees. We have plenty of experience of legislation like the Child Support Agency and the recent immigration and asylum proposals to realise that there is scope for some form of serious review of administrative workability, as well as the

24. M. Rendel, op. cit, supra, at pp.254-255.




acceptability of broad statements of political policy. With regard to fundamental rights and the legal context into which a bill is to fit, we do need to question whether the Attorney-General's department is a sufficient safeguard and whether some independent scrutiny might not be useful.

JOHN BELL*

* Professor of Law, University of Leeds.

DO THE OPINIONS EXPRESSED BY THE CONSEIL D'ETAT IN ITS CAPACITY AS LEGAL ADVISER TO THE GOVERNMENT

INFLUENCE POLICY?

My title for this article reflects a very proper question for a foreign audience which has become more familiar than in the past with the dual (consultative and judicial) role of the French Conseil d'Etat. For many years, interest in Britain focused on the judicial function of the Conseil. More recently, attention has shifted to the activities of the "sections administratives", which involve the screening and the drafting of all the proposed legislation and the essential part of subordinate regulations prepared by government. I have the feeling this interest is probably fuelled by the recent constitutional changes in the United Kingdom, and the need to prevent legal difficulties cropping up between different and new political bodies.

But the same question could well come from the French public. In the past, it had appeared to be very unconcerned with this aspect of its institutions. But

progressively, more is known about it as the reports of the Conseil d'Etat have, for the last 10 years or so, become more explicit.' The Government, when embarrassed, has referred to the attitude of the Conseil and the positions it has held in such or such a situation have come to the limelight and been queried. The French like to refer to the "sages du Palais Royal", but we are living in times when even the "sages" must live up to their reputation.

Finally, it is a question we may well as members of the institution ask ourselves. We share with all lawyers, whatever the system they have to work with, the lesson of experience. It is no secret that if a question of law is difficult it will allow several, maybe contradictory answers. How do we, in conscience, make that choice when the different eventualities may, or may not, satisfy the policy makers of the moment?

To share with you the experience of some 40 years, I would like first to comment on the basic characteristics of the function of the Conseil d'Etat in its "sections administratives".

1. The avis which the Conseil d'Etat gives to the Government are private and have not been published. For a number of years, the annual report of the Conseil d'Etat has contained a brief statement of the activities of each administrative section in which it reports in general terms on its activity. But it has only been in very recent years (since 1992) that the discussion of the advice given to the Government on legislation has been more detailed. It is thus difficult to give specific references to published situations in which the advice of the Conseil has been followed or rejected by the Government.



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What Is the Function of the Conseil d'Etat in the Preparation of Legislation?

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