Since 2008, social reforms have been the result of a well-oiled mechanism by the Larcher law, which requires consultation with the social partners, on the basis of a preliminary orientation document, before legislating in social matters (Labor Code, art. L1). This step is not only an opportunity to refine a project or create consensus, it also helps to legitimize the fact of deciding between positions that would remain irreconcilable. The great pension reform could have installed this new way of constructing the law in the landscape. Alas. The text, marred by errors and inconsistencies never seen for a reform of such importance, betrays a deeply flawed design method. Clearly, we could have achieved the same result – the decline in the legal age of departure – by operating differently. The problem is that this faulty method is not new…
In 2016, even though all the prerequisites were checked, this beautiful process stalled on the occasion of the law relating to work, the modernization of social dialogue and the securing of professional careers. Preceded by a Badinter Commission, backed by the anointing of law and economic eminences, widely debated in the media, supplemented, planed, this so-called “El Khomri” law nevertheless faced multiple challenges, a parliamentary revolt circumscribed at the cost of two “49.3”, before being amputated by the Constitutional Council.
The force passage technique
These battles have left traces, but also selected teams on the basis of their procedural efficiency, and which seem to have learned two lessons from this experience: the preliminaries are superfluous, there is always a path of passage in force. Indeed, what had to be watered down or discarded passed easily, what is more in an amplified version, with the package of ordinances which reformed the Labor Code in 2017.
Unemployment insurance reforms pushed the envelope even further: in 2018, ignoring newly approved regulations, the State relaunched a new negotiation corseted by constraints that doomed it to failure, legitimizing at the same time suddenly a deficiency decree that completely rewrote the rules. Even stronger, in 2022, not respecting any of the obligations it had assigned itself four years earlier (annual report, consultation, framework document, etc.), then taking advantage of its own turpitudes, the government out of the hat comes a new performative reform of unemployment insurance, while forcing parliamentary passage on the grounds of a non-existent urgency, but which dispenses with prior consultation. And let’s not forget the penultimate pension reform, which before its abandonment in 2020 had ended a long sequence of participatory democracy by introducing in extremis of a pivotal age, not even mentioned in the final consultation report.
Procedural aces swept away engineers and accountants. Why the hell bother with a tedious and invisible rigorous work if in the end the quality of the project is not decisive? Boeing had come to the same conclusion, organizing accommodations and shortcuts in the certification procedure for its aircraft, to the detriment of the essential, in this case that its 737 Max flies and does not escape the control of the pilot. A disaster that could have been meditated.
“This reform is the visible part of a deeper problem”
Instead, pension reform has sublimated the technique of procedural forcible entry. A shrunken consultation, a copy shrouded in mystery and deferred on the grounds of perfecting it, and finally a bill unveiled at the same time as its “evaluation sheets”. But, pensions benefiting from very complete information disseminated for years by the Pensions Orientation Council, inconsistencies and errors were very quickly flushed out in the government project, including on emblematic aspects of the reform, at the point of distorting the narrative and the substance (minimum pension, women’s rights, long careers, etc.). None of these problems would have passed the filter of real consultation.
This sad result of failing engineering put the government on the defensive. Ministers, parliamentarians, were caught out on the data, the standard cases, the budgetary equations, and even the principles, prisoners of elements of language inconsistent with what they were supposed to promote. It was no longer a question of pushing for the good cause a secure text, passed through the sieve of consultation, but of imposing a work in chambers, banal and approximate, in certain respects, harmful as it was badly designed, but all the same supposed to save our social contract. Error is allowed, but the repetition and the scale of the inadequacies that have appeared this time are unprecedented.
Pension reform is the visible part of a much deeper problem: the deterioration in the quality of public policies and the making of the law. Administrative production has lost a lot of its ability to produce efficient systems, particularly in social matters, as the president pointed out in his famous tirade of “crazy dough”. The skills are there, but the management of administrations, which for decades has valued the body rather than the person, the position occupied rather than the results obtained, the verb rather than experience, is surely no stranger to this loss of knowledge. -TO DO. An insidious decline that the frenetic accumulation of increasingly defective devices obviously cannot reverse, and which undermines the economy, society, the country.