Why do proposed national security measures get dropped? The four months after the Paris attacks and the French national debate on cancellation of citizenship

By Miss Rachel Pougnet, PhD Candidate (University of Bristol Law School).

Bourgoin jallieu le 29/12/2015: Photo illustration du code Civil/Credit:ALLILI MOURAD/SIPA/1512301245

On 16 November 2016, three days after the terror attacks in Paris, the then-French President François Holland gathered both houses of Parliament (the National Assembly and the Senate) in Versailles. He started his speech with a grave tone, by noting that “France was at war”, and that the country needed to be “ruthless” in “such times of exceptional gravity”. He called for “national unity” and proposed a revision of the Constitution.

His proposal was to enshrine in the Constitution the procedure of the state of emergency (article 1) and the cancellation of citizenship for dual nationality holders (article 2). As Holland then put it

We must be able to strip the nationality of an individual who has been condemned for acts contrary to the fundamental interests of the Nation or acts of terrorism, even if the individual was born French, and I mean it “even if the individual was born French” so long as the person has another nationality (Holland’s speech, 5).

The proposal was eventually dropped on March 2016, following the failure of both houses to agree on a similar text on article 2, cancellation of citizenship, as required by article 89 of the Constitution. This article spread intense debate across French society and enjoyed widespread press coverage from French newspapers of all kinds. More than ten public opinion polls were issued on the subject and it prompted the resignation of Christiane Taubira, the Secretary of State for Justice. All this for a relatively short debate: 136 days in total.

It is unclear whether this failure can be attributed to the specific political context at the time (a right-wing Senate and left-wing National Assembly, the low popularity of President Holland and the uncertainty of the regional elections (which were to take place in June 2016), to the rigidity of the French Constitution (article 89 requires a majority of 3/5 of both houses gathered together in Congress), or to the importance of citizenship-nationality in the French national narrative. Perhaps the truth lies somewhere in between these lines. But in the broader context of an increase in recourse by states to the deprivation of nationality as a counter-terror measure (see for example the Netherlands or the UK), a closer analysis of the debate around the contested measure is warranted.

The French legislation on deprivation prior to 2016

Cancellation of citizenship (déchéance de nationalité in French) is not alien to the French legal framework. The measure was first introduced in the mid-19th century in the form of an administrative decree to sanction French nationals involved in human trafficking. It was then enshrined in law in the aftermath of the Second World War and applied ratione personae to naturalized dual-nationality holder French citizens, if they had been naturalized for less than 10 years. The acts sanctioned were limited rationae materiae to a list of crimes (eg terrorism, high treason, spying…) and ratione temporis to acts committed in the first 10 years following the acquisition of citizenship. The regime still prevails today and is enshrined in the Civil Code at articles 25 and 25-1.

By means of comparison, section 40 of the British Nationality Act 1981 enables the Home Secretary to deprive natural-born British citizens of their citizenship, if they are dual nationals (section 40(4)) and the deprivation is conducive to the public good[1] (section 40(2)). In addition, section 66 of the Immigration Act 2014, which modified the British Nationality Act 1981, now enables the Home Secretary to make any naturalised citizen stateless, if that individual has acted in a manner that is seriously prejudicial to the vital interest of the UK (section 40(4Ab)). According to David Anderson QC, the UK’s independent reviewer of terror legislation, at least 33 persons have been deprived of their citizenship since 2010 on terror grounds, of which 5 in 2015.

In France, however, the strict procedural conditions to which deprivation powers are subject and the obligation to get the assent of the Conseil d’Etat before issuing an order limit the recourse to the measure. Since 1973, 13 individuals have been deprived of their citizenship on national security grounds and, until recently, the powers were considered to have fallen into desuetude. What then justified the extension of the powers in the French context of 2015?

The 2016 Parliamentary debate

The government justified the measure as a “symbolic” tool which would sanction those who by their acts

do not deserve to belong to the national community anymore.[2]

The rationale behind the measure was not to deport terrorists or prevent their returning to the country. Indeed, as the then French Prime Minister Manuel Valls acknowledged:

Efficiency, here–and everybody would have understood it–is not the main objective. It is a measure–I have already said it–with a highly symbolic character. It is a grave sanction that the Nation is legitimate to inflict to those who betray her.

According to the government, this symbolic rationale was enough to justify the introduction in the Constitution of a distinction between French-born citizens based on their connection with a foreign country. However, this point was particularly contentious during the debates both inside and outside Parliament. It was said to prompt a departure from the alleged colour blind and egalitarian model of the French Republic enshrined in the first article of the Constitution of 1958. As the socialist MP Lagarde put it in the national assembly:

we judge individuals for actions that they have committed. We don’t judge them according to their heredity, to their parents, to their origins. It is a fundamental principle of the Republic. And for us, it is impossible to derogate from this principle as there is only one category of French people.[3]

This led the National Assembly to amend the original text and to adopt a modified version, which did not distinguish between French-born citizens. However, this amended text was blocked by the Senate, which refused to drop the safeguard against statelessness. This legal limbo increased the calls for the dropping of the text: as the communist MP Candelier put it

for our part Mr President we chose: we want no breach of equality nor statelessness.[4]

The text was abandoned on 30 March 2016.

Insights on the operation of emergency legal frameworks

This debate highlighted some common features of the political responses in the context of a national security crisis, as well as some features specific to the French context. The debate provides an example of an emergency legal framework that states implement in times of crisis. Such frameworks have been characterised by the political theorist Kim Lane Scheppele as operating around rushed legislation, a restriction of civil liberties and greater deference from Parliament and the courts to the executive in the aftermath of an “emergency crisis”.[5]

The hurried process is particularly salient in this context, where the government first proposed modifying existing legislation, then inserting it into the Constitution, first to a certain category of citizens, then to all citizens, both with and without judicial oversight, both with and without a safeguard against statelessness, before finally realising that France had ratified neither Geneva Conventions on Statelessness. These constant pushbacks led to a feeling of exhaustion from the population and from Parliamentarians; a sentiment summarised by Conservative MP Kosciusko-Morizet in a speech before the National assembly:

With regards to cancellation of citizenship, you have said everything and its contrary depending on who you were talking to […] It is neither a practical measure nor a symbol, it is a political manipulation. […] My Right Hons Friends, this article is useless. It divides political parties and society and should therefore be dropped.[6]

The failed constitutional revision also stressed the polarisation of the debates in France around dual nationality–or connection with a foreign country–and security. In 2010, for example, the then-president Nicolas Sarkozy proposed to extend deprivation of nationality to any individual with a “foreign connection” who took up arms against a figure of public authority (ie the police, judges, etc). At the time, François Holland condemned this extension as contradictory to the Republican tradition. In a similar strand, Manuel Valls characterised the proposal as a “political game” and rejected the connection between “immigration and insecurity” as “unbearable and not France”. When questioned about his change of mind in 2015, Manuel Valls argued that the context was different, as France was now at war. This war rhetoric is commonly deployed when states implement emergency legal frameworks. Tony Blair, for example, used similar rhetoric after the July 2005 terror attacks in London, arguing that “the rule of the game had changed”.

This  proposal, and its constitutional grounding, thus reinforced the idea of the existence of a “scale of frenchness” amongst the French population, upon which criminal sanctions can be based. Irrespective of whether this project implied that French-born citizens with a foreign connection were more likely to be guilty of offences; what it did is legitimise the idea that they are more likely to be suspected than others.[7] This process then makes it acceptable to the general public to give away their rights and turn them into privileges, a “favour granted by the Republic”- rhetoric used in citizenship naturalisation ceremonies. This rhetoric is also salient in the UK since the mid-2010s, as Minister Mark Harper put it in 2014 following the case of the London cleric Abu Hamza “citizenship is a privilege, not a right”.

Although Francois Holland acknowledged that the debate around cancellation of citizenship was “the biggest regret” of his 5 years as a president, the ascendency of Marine Lepen to the second round of the French presidential elections in 2017 has arguably owed much to such political rhetoric.

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[1] Conducive to the public good means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crimes, war crimes or unacceptable behaviours, UKVI nationality instructions volume 1 chapter 55 “Deprivation section 40 and nullity” 10 September 2015, https://www.gov.uk/government/publications/deprivation-and-nullity-of-british-citizenship-nationality-policy-guidance.
[2] §7 (the Goverment quoted the positive assent from the Conseil d’Etat on the proposal).
[3] JO, Assemblée Nationale, Parliamentary Debate (5 February 2016), 1011.
[4] JO, Assemblée Nationale, Assemblée Nationale Debate: Article 2 Protection de la Nation (9 February 2016) 1152.
[5] Kim Lane Scheppele, ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’ (2004) 6:5 Journal of Constitutional Law 1001.
[6] JO, Assemblée Nationale, Assemblée Nationale Debate: Article 2 Protection de la Nation (9 February 2016) 1163.
[7] Vincent Geisser, ‘Dechoir de la nationalite des djihadistes “100% made in France”: qui cherche-t-on a punir?’ Migrations societies 2015/6 (n 162), 3-14. Sarah Mazouz, ’Politiques de la deligitimation: de la remise ne cause de la double nationalite au project d’extension de la decheance de nationalite’ Mouvements 2016/4 (n 88) 159-167.

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