The Official Journal (JO) of February 16 publishes law n ° 2021-160 of February 15 extending the state of health emergency. This law succeeds that (n ° 2020-1379) of November 14, 2020 having exactly the same purpose, a law which itself took over from a law of May 11, 2020 extending the said state of emergency until December 31, 2021. , established until then by law 2020-290 of 23 March 2020. We are therefore at the fourth law devoted to the state of emergency.
Should we laugh or cry?
My first reaction, on discovering this succession of laws, was to burst out laughing. But sometimes, from laughter to tears, there is only one step. And now I cry – intellectually – at the stupidity of our leaders, who resort to the law despite common sense.
That the state of emergency is, in principle, defined by a text of law, nothing is more normal. But that the law in question sets a date for the beginning and, even more, for the end of this state of emergency, it seems to me foolishness. It would have been reasonable to say that the state of emergency would last until the sanitary conditions allow it to be ended, an end which would be decided in the form of a decree. A second best would have consisted in including in the law an emergency end date “if possible in view of the health situation”, and to entrust the Government with the task of advancing or postponing this date by decree, possibly several times, depending on sanitary conditions.
Of course, the Government and the Presidency of the Republic are not Madame Soleil, they do not know in advance the duration of the pandemic. But was this not one more reason not to ask the legislator for a fixed-term authorization, which is moreover very short, but a mandate adapted to the circumstances? The law could have – and should have – specified that the state of emergency was initially established for such duration, and would be renewed if necessary, by decree, one or more times, depending on the evolution of the situation.
The way in which the Presidency and the Government have had recourse to the Legislator therefore reflects a certain amateurism. The Legislator must lay down general rules, and the Executive must specify them, provide such or such application, according to the circumstances, by means of decrees and orders. Let us take the side of laughing at this amateurism relating to the sharing of roles and responsibilities between the Legislator and the Government – but I still want to cry enough. Above all, let us reflect a little on the different types of texts that the Parliament and the Government can use to frame our activities and, if necessary, give us orders.
The respective roles of the law, the decree and the decree
The law, normally, should lay down principles, indicate the general rules applicable to life in society. Then comes the regulation, in the form of decrees and orders which enact, depending on the circumstances, the precise rules to be respected. For decisions with a wide scope, for example the value of the civil servant index point, recourse to the decree is reasonable; for the appointment of such and such a person to such and such a position, it is the decree that is appropriate.
Friedrich Hayek, in Law, legislation and freedom, is probably the author of political philosophy who most clearly distinguished between what is law and what is command. He denounces in particular, in this work which dates from 1980, ” the merger, in the hands of the same representative assemblies, of the mission of setting out the rules of fair conduct, with the mission of leading the government ”. That is, exactly what is happening in front of our eyes about the pandemic. Admittedly, alas, it is not a question of this only circumstance: the confusion of the legislative and the executive, fields depending respectively on the law, the decree and the decree, has become a habit.
The constitution is however clear: “Parliament votes the law” (article 24), while “the Prime Minister directs the action of the Government” and “exercises the regulatory power”, which results in orders written in the form of decrees and orders. Clearly, the Legislator should lay down the principles, and the Executive should take the most effective concrete measures among those which would conform to the said principles. The decrees and orders constitute the commands, relatively general for the first, more narrowly detailed for the second.
Decree that, for a certain period, you must wear a mask when you are around other people, that certain activities involving physical contact or close proximity must not be carried out, that schools will operate with school staff reduced, and so on, all of this clearly falls under command, not the law! The same goes for curfew hours and containment rules.
The law of 3 April 1955 relating to the state of emergency provides an example of a law in accordance with the principles formulated by Hayek. When an imminent danger occurs, serious breaches of public order or events having the character of public calamity, the state of emergency can be declared by decree in the Council of Ministers, and if it is necessary to extend it beyond of 12 days it must be appealed to the Legislator. In this context, the powers of the prefects are extended and a decree taken by the Council of Ministers can dissolve groups seriously undermining public order. In other words, in an emergency the Executive has free rein, it takes its responsibilities, and if necessary Parliament authorizes it to continue its momentum.
In short, when it is necessary to act on the spot, the law authorizes the Government to do the necessary under its own responsibility, by using the decree and the decree, even if it means passing under the control of the Legislator if the problem is not quickly resolved. It is a good compromise between the law, made to last more than a few days, and the decision required to respond to the emergency.
In conclusion …
France would have every interest in ensuring that its rulers do not believe themselves bound to legislate in order to govern. Let them let MPs and senators make laws when they are useful, but they can take their responsibilities. France needs an annual budget, not a finance law. Social Security needs an annual budget, not a social security financing law passed each year. The respective roles of the executive and the legislative are poorly organized in our country, as in many others. If we could tidy up this shop where we don’t really know who is doing what, or if someone is really responsible for something, we would be much more efficient. And this reorganization includes first and foremost the distribution of roles between the Law, which sets the main principles, the regulations, which must not extend beyond what is strictly necessary, and the decision, which calls on the arts. , starting with those of commanding and obeying, to which unfortunately our institutions in charge of training young people do not contribute enough.