Marine Le Pen planned to bring in a ‘nationals first’ policy restricting jobs, social housing and benefits to French people if elected – but could this ever happen in ‘egalitarian’ France?
French Association of Constitutional Law vice-president Prof Philippe Blacher said: “This [campaign] slogan could not become law unless the president pushed it through in a coup d’état against the rule of law.”
In that case, he believes parliament would vote to depose the president, which takes around two months.
“Of course, the law has its limits. We can’t rule out that one day there could be a nationalist president, with a nationalist majority in parliament too, who would change our institutions but it would be a revolution and the end of the Fifth Republic,” he said.
What Le Pen means by ‘nationals first’
A ‘nationals first’ policy would mean jobs being offered first to French candidates.
Ms Le Pen also spoke of access to social housing and to certain benefits, including restricting family allowance to the French.
Foreign people would have been a second-class group.
Her wider agenda included banning non-EU foreigners from holding dual nationality with French.
To bring in the policy, she planned to change the constitution by a referendum, without a parliamentary vote.
She would have used the constitution’s article 11, which lays out a process for legal change in this way.
Precedents in France exist
Law experts told The Connexion that her priorité nationale plan clashed with international law principles.
However, a spokesman for Ms Le Pen’s far-right Rassemblement National party said they had planned to change the constitution to place it above any international laws.
He said Charles de Gaulle used article 11 in 1962 to create a new constitution rule making the president directly elected by the people, showing it was not illegal to do this.
Previously, the president was elected by MPs, senators, mayors and some other local councillors.
He said ‘national priority’ already exists for many professions, such as civil servants, and it would “not stop bosses taking on foreigners”.
What about liberté, égalité, fraternité?
Prof Blacher said: “Under current French law, it is not possible to introduce this rule, firstly because the first and second articles of the constitution mention ‘equality’ as a fundamental value of the Republic, including its motto liberté, égalité, fraternité.
“So the Conseil constitutionnel and judges have always forbidden discrimination between nationals and foreigners.”
He said there may be minor exceptions, but they must relate to a very precise area, and be proportionate and justified.
“There is no doubt that a ‘nationals first’ policy is so vague and general that it’s against the constitution,” he said.
As for restrictions for civil servants, most countries have some roles restricted in this way.
This is true in the UK, for example, for the civil service, army and MPs.
Secondly, he said article 11 is not intended for constitutional change, which is “very complex and solemn”.
Experts say equality is set in law
Article 89 sets the process for this and requires consent from both houses of parliament.
It also says that the ‘Republican format of the government’ cannot be changed by the process and many legal experts believe equality is part of this, he said.
“So, it’s not possible to remove, from one day to the next, the essential ‘equality’ elements which have been forged by France over the centuries.”
He added that the idea also contradicts the European Convention on Human Rights, which forbids discrimination, and French law must respect this – because the constitution itself puts international treaties above national law.
It is not possible to expect French law to be “hermetically sealed” against external rules, he said, as cooperation is needed in many areas.
Prof Blacher said that if such a law were pushed through, there would probably be “very costly” sanctions by the European Court of Justice and European Court of Human Rights.
This has happened against the nationalist governments of Hungary and Poland. “The only possibility [to circumvent this] would be a Frexit,” he said, “which is what is hidden behind this ‘nationals first’ idea – the wish to be relieved from obligations towards EU law.”
Adoption of the idea by a key EU player such as France would cause a “rupture with Germany” and risk the end of the EU, he added. “But it won’t happen.”
One example of the policy relates to jobs and housing in Monaco – not in the EU – but he said the case is very specific.
Its nationals are a minority in their country, and some positive discrimination is permitted to ensure they can still live in the small territory, where property values are high.
“Connexion readers should be reassured that the rule of law is solid here and the ban on discrimination would be much stronger than a simple presidential election,” he said.
Things could change if Le Pen got Assemblée nationale majority
Constitutional law expert Eric Sales of Montpellier University said this “policy of discrimination clashes head-on with France’s constitutional identity, both in the constitution and in the Declaration of the Rights of Man and of the Citizen”.
The main issue is “the manifest violation of the constitution” of using article 11, which he said is for when a president wishes to create an ordinary law without parliament, as opposed to article 89, which is the one explicitly aimed at constitutional change.
Article 89 would probably have failed, however, as Ms Le Pen would not obtain an Assemblée nationale majority, and the Senate is mostly centre-right and opposed to such policies.
It is not due for renewal until September 2023 for one half, then 2026.
The only exception, out of 24 constitutional laws under the Fifth Republic, was De Gaulle’s, which Dr Sales considers was contrary to the rules and caused an “unprecedented crisis”.
It was done in contradiction of the non-binding opinion of the Conseil constitutionnel, he said, and “was the only case in the Fifth Republic where MPs passed a vote of no confidence, which overturned the Pompidou government”.
Under current rules the Conseil would also have power to assess the validity of the referendum question and, if deemed unconstitutional, block it.
If the president ignored this, he or she would be “in violation of the constitution” and he would expect parliament to depose him or her.
Could it ever happen? “If there was a Rassemblement National majority in the assembly and Senate, it could, but we’re not in that position.”