A comparison of the incomparable : developing a theory of unwritten parliamentary sources
The use of comparison in the study of parliamentary law is not an uncommon occurrence. Indeed, several studies have demonstrated the contribution of comparative analyses to a better understanding of parliamentary procedure and its potential developments. Typically, such comparisons are made with elements of the procedure that exhibit shared characteristics. However, my doctoral research aims to achieve a substantially different objective. It is confined to the unwritten sources of parliamentary law, i.e. the rules of behaviour which govern the actions of parliamentarians but which are not contained in any text; these are referred to as parliamentary practices. This comparison therefore starts with an indisputable fact: both Parliaments are in complete opposition as regards the role of non-written sources. While British parliamentary law is historically and traditionally composed of conventions, precedents, customs, ancient usages and other practices in accordance with the common law tradition, French parliamentary procedure is mainly written on the basis of the civil law tradition and reviewed by the Constitutional Council since the start of the Fifth Republic (1958) and the introduction of government rationalisation of parliamentarianism. In other words, while recourse to unwritten sources is a principle in the United Kingdom, it is an exception in France.
This fundamental difference gives rise to questions regarding the meaning and feasibility of such a study. However, these interrogations were swiftly superseded by the observation of numerous similarities between the two procedures, including the substantial reduction of unwritten sources since the late 19th century and the striking parallels between categories of unwritten sources. These discrepancies then became a genuine benefit in the context of theorising a concept that transcends cultural particularities according to the Most Different Systems Design (MDSD) method, which involves comparing very different situations that nevertheless have one element in common.
The comparison between the British and French parliamentary procedures was therefore the decisive factor in the research, enabling the study of parliamentary practices outside the traditions of each State, which is unprecedented in both doctrines.
An increased difficulty, specific to research on unwritten sources of parliamentary law
The investigation into unwritten sources of parliamentary law presented a significant challenge, characterised by the absence of a comprehensive list of parliamentary practices derived from the Standing Orders, internal rules, or the French Constitution. Consequently, the existence of non-written rules must be deduced from a set of indicators of varying natures. A comprehensive review of both Parliaments’ minutes, committees’ reports, and several handbooks of parliamentary law has not yielded sufficient evidence to establish the existence of certain practices or to explain the origin of others. To this end, a comprehensive field research initiative was undertaken, encompassing in-depth interviews with members of parliament and civil servants, on-site visits to the Assemblée nationale, the Sénat, the House of Commons and the House of Lords, and extensive analysis of numerous debate records. Finally, the role of the general press should not be underestimated, since many journalists in both countries report daily, and often unconsciously, on the exercise of a rule of behaviour that does not exist in any text. The inherent intricacy of research into parliamentary practices necessitated the narrowing of the temporal scope of the study. In order to focus the research on the contemporary interactions between legal rules and practices within the two Parliaments, the starting point of the research was placed at the time of the decisive amplification of the codification of parliamentary procedure. This is equivalent to the beginning of the Fifth Republic in France and the second half of the nineteenth century in the United Kingdom.
The investigation was rendered more arduous by the fact that reference manuals on parliamentary law in the two countries provide only – when they do – a concise overview of parliamentary practices, or even omit certain practices entirely. A further complicating factor is that many academic works on parliamentary procedure focus on a particular practice. These particularities complicated the research and rendered it necessary to produce a work classifying the various existing practices based on their functions, since no such work yet existed in either French or British scholarship.
The complexity of research into parliamentary practices was thus increased tenfold by the comparison process, since the research had to be duplicated. The comparison process itself did not introduce any significant challenges beyond the necessity of conducting the same field research in the UK and relying on the various sources outlined above. Notwithstanding the absence of challenges specific to comparison, certain national peculiarities have emerged.
In France, for instance, the nature of parliamentary practices remains ambiguous. Part of the French scholarship maintains that parliamentary practices constitute unwritten parliamentary law, while another part refuses to recognise their legal nature and characterise them as social rules. This ambiguity is further compounded by a lack of clarity among parliamentarians themselves regarding the nature of the rules they are utilising. On many occasions, Members of the French Parliament claim to be applying a legal, written rule when in fact they are only acting on the basis of parliamentary practice, of which they appear to be unaware. In contrast, the United Kingdom is notable for its clear distinction between its parliamentary practices and its legal system. The academic community and parliamentary actors in the UK are in unanimous agreement that these practices are non-legal in nature and are equivalent to the conventions of the Constitution.
In this regard, British doctrine proved instrumental in the discussion and subsequent rejection of specific French concepts. Conversely, the long-standing nature of certain British practices rendered the research process complex. The absence of precise sources dating back to the sixteenth or seventeenth century, which would provide a clear explanation for the emergence of certain practices, constrained the analysis on certain points concerning some very old British practices. In contrast, French research has not encountered such difficulties, given the recent nature of the practices studied.
Notwithstanding the absence of any general difficulties arising from the comparison process, difficulties specific to each of the two states and to research into parliamentary practices have therefore arisen and been overcome.
The main conclusions of the research : a classification of disappearing practices
The comparison first allowed us to establish a common classification of parliamentary practices on the basis of their functions. The category of incidental practices includes most of the precedents and, more generally, practices that are linked to a written rule, either by modifying or neutralising it, whereas autonomous practices are rules of conduct whose existence does not depend on the existence of a written rule. Moreover, some practices are similar between the two parliaments, while some French practices have been borrowed from the Westminster Parliament. In a more general sense, parliamentary practices have a first, rather discreet dimension, which allows the chambers to regulate the behaviour of their members and, in the particular case of the upper chambers, to regulate themselves. With few political consequences, this first function associated with the functioning of parliaments helps to characterise their particular identity. In the second dimension, which has more far-reaching political consequences, these practices make it possible to optimise parliamentary work, increase opportunities for expression, guarantee pluralism within the assemblies and circumvent certain limits on the right of parliamentary amendment in order to influence the institutional function exercised by the parliament. A comparative study of parliamentary practice in France and the United Kingdom reveals a number of common functions, but also significant differences, which are part of an overall context that is very different between the two countries.
As a result of a combination of factors, the number of parliamentary practices is steadily decreasing in both parliaments. Indeed, the increasing codification of procedures is far from being offset by the creation of new practices. The British Parliament has historically demonstrated a stronger aptitude for the preservation of its established practices, though it is not renowned for the creation of new unwritten rules, a trait that is indicative of a silent and unchallenged survival. Conversely, the French Parliament has been characterised by a considerably more rapid, substantial and occasionally contentious disappearance of both historical and contemporary practices. However, it is noteworthy that the French Parliament has recently initiated experimentation with unwritten procedures, the longevity of which will necessitate close observation.
The observed decline in the utilisation of parliamentary practices signifies a general diminution in the relevance of unwritten sources of parliamentary law. The necessity for transparency and the renewal of the political class frequently result in the replacement of unwritten rules with the publicity and clarity of written rules. One can however wonder whether or not the Parliaments and their members are to lose some of their autonomy and prerogatives in this process.
Posted by Dr Marie – Elisabeth BOGGIO – MOTHERON (CRJ Pothier – Université d’Orléans)
Research work supervised by Professor Vanessa BARBÉ (Université Polytechnique Hauts de France) and Professor Pierre ALLORANT (Université d’Orléans).
Doctoral thesis publicly defended on December 6, 2024 in Orléans in the presence of Professor Peggy DUCOULOMBIER (President of the jury – Université de Strasbourg), Professors Jean-Éric GICQUEL (Université de Rennes I) and Julien JEANNENEY (Université de Strasbourg) (rapporteurs), Professor John BELL (examiner – University of Cambridge) and Georges BERGOUGNOUS (examiner – Université Paris I Panthéon-Sorbonne).
British Association of Comparative Law 
1 Comment
Comments are closed.