The hypothesis of a resigning government poses two main problems on the constitutional level: it cannot be overthrown by the National Assembly, and the separation of powers is not really respected.
The establishment of a resigning government is problematic. It must be understood that the President of the Republic has set his conditions: he will appoint a Prime Minister once a proposal for Matignon emerges with the support of a majority in the Assembly. Which is far from being the case for the moment. The Head of State is therefore waiting. And in this moment of waiting, he is maintaining a government, with the same ministers, even if they have resigned, including the head of government Gabriel Attal.
The fact remains that this solution poses a serious constitutional problem: a resigning government cannot be overthrown by the National Assembly, it is no longer responsible to the deputies. If the letter of the law is not flouted, since the government no longer has full prerogatives – it manages so-called current affairs – it is the spirit of the Constitution that appears to be affected: the expression of popular sovereignty, the National Assembly, is deprived of its means of censure over the executive. If this configuration can be understood in a transition phase, it clearly poses a democratic problem if it continues for a long time, weeks or months, a scenario that today appears conceivable, particularly with the imminent start of the Paris 2024 Olympic Games.
The other problem concerns the separation of powers. The latter requires that the legislative power represented by the deputies, and the executive power, namely the ministers and the entire government, be two separate entities. However, in the context of a resigning government, those who vote on laws and who govern could well be the same people given that several ministers were elected as deputies to the National Assembly during the last early legislative elections. We can for example cite Gabriel Attal, Gérald Darmanin or Marc Fesneau who will return to the benches of Parliament shortly. A situation that flouts the traditional French constitutional spirit.
What can and cannot a resigning government do?
A resigning government is destined to leave to make way for a new ministerial team, but it remains in place until the latter is appointed. There is therefore a period of time between the submission and acceptance of the resignation of the Prime Minister and his government and the arrival of their replacements: it is during this period, which generally lasts between a few days and a few weeks, that the resigning government is in place. It then ensures only “current affairs” – hence the other name of the resigning government – to “ensure, in the name of continuity, the minimal functioning of the State” explained Claire Landais, the secretary general of the government, in a vade-mecum to the ministries reports Politico.
The Prime Minister and his resigning government are therefore deprived of the functions they previously performed, such as passing a reform by decree, proposing a bill, changing a regulation or launching a plan. The resigning government also escapes meetings such as the Council of Ministers since no decision-making is possible. Above all, because it is promised to leave, a resigning government cannot be targeted by a motion of censure, unlike a government with full prerogatives. As a reminder, the President of the Republic has not specified the date until which Gabriel Attal will retain his prerogatives as Prime Minister, even if the deadline of July 18 is approaching to make the government resign. In other words, the deadline for the constitution of new groups in the National Assembly.
Changes for deputy ministers
Ministers therefore lose the interest in their function when a government resigns, but those who are deputies in addition to being members of the government can also find advantages within the National Assembly. In particular, they can claim and weigh in when assigning positions of responsibility in the hemicycle such as the presidency of the Assembly or those of the various committees, something that is impossible for them as long as they are part of the executive.
These key elections for the National Assembly must take place after the constitution of all the groups, i.e. from July 18. This detail, coupled with the fact that from its first meeting, also set for July 18, the hemicycle can table a motion of censure against the government, could push Emmanuel Macron to make the government resign before this date. He would save himself the overthrow of a government that he knows must be replaced and he could allow his camp to count on the votes of the 18 ministers deputies when allocating positions in the Assembly, and thus be better represented.