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The nature of the mandate of members of the Parliamentary Assembly

Doc. 14077: compendium of written amendments | Doc. 14077 | 22/06/2016 | Final version

Compendium index

Amendment 1 Amendment 2 Amendment 3 Amendment 4 Amendment 5

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Statute of the Council of Europe (ETS No. 1) and the Rules of Procedure of the Parliamentary Assembly, which define and govern the competences of Assembly bodies and parliamentary procedures, say nothing about the status of members of the Assembly and the nature of their mandate, and merely specify that the members of the Assembly are elected within the national or federal parliament or appointed from among their members (Article 25 of the Statute of the Council of Europe and Rule 6 of the Assembly’s Rules of Procedure).
2International organisations being instruments of co-operation between States, it is common ground that their statutes govern relations between the organisation and its member States. It is therefore clear that, because of the actual legal nature of the instrument founding the Council of Europe, the members of the Assembly are considered not as individual “subjects of law”, but in terms of their membership of one of the Organisation’s two statutory bodies: as “Representatives to the Assembly”, they enjoy the protection of a specific European statutory and treaty-based system of immunities.
3The Rules of Procedure, supplemented by complementary texts, also comprise several provisions relating to the guarantees and rights, but also obligations, governing the exercise of their European mandate.
4The members of the Assembly sit as members of a national delegation, but also, where the great majority of them are concerned, in respect of a political group to which they have declared their affiliation. As national elected representatives, parliamentarians are mandated by their electorate to act in the general interest, albeit with respect for the political values professed by their political party. As members of the Assembly, they undertake to adhere to the fundamental objectives and principles of the Council of Europe (Rule 6.2 of the Rules of Procedure) and, to the extent that they are affiliated to one of the five political groups of the Assembly, to promote the group’s objectives, values and principles.

22 June 2016

Tabled by Mr Serhii KIRAL, Mr Leonid YEMETS, Mr Valeriu GHILETCHI, Ms Chiora TAKTAKISHVILI, Mr Serhii SOBOLIEV

Votes: 11 in favor 27 against 6 abstentions

In the draft resolution, paragraph 4, replace the second and third sentences with the following sentences: "As national elected representatives, parliamentarians are mandated by their national electorate to act in the general interest, albeit in accordance with the political values professed by their political party. As members of the Assembly, they undertake to adhere to the fundamental objectives and principles of the Council of Europe and, to the extent that they are affiliated to one of the five political groups of the Assembly, to promote the group's objectives, values and principles, which also must be in accordance with the political values professed by their national political party."

Explanatory note

Adding the word "national" more specifically shows the nature of the Assembly members' mandate. It is not the European electorate but the national electorate who elected their national representatives to the Parliamentary Assembly. Thus, members should be focused on the objectives of their respective nations.

5In accordance with the principle of representative democracy, in Europe national parliamentarians have a representative mandate which has the distinction of being general, free and irrevocable, and implies freedom of action, opinion and expression and an individual right to vote. The constitutional or legislative provisions governing the functioning of the parliamentary system in Council of Europe member States highlight, firstly, the non-binding or conditional nature of the mandate, in other words, from a legal viewpoint, elected representatives enjoy absolute independence vis-à-vis both their electorate and their party. Parliamentarians are considered to be able to exercise their mandate freely and not be bound by any undertakings given before their election or instructions received from voters during their mandate: they are not bound by instructions from their voters and are not obliged to follow the instructions of their party.
6In theory, parliamentarians are free to make their own decisions, as expressed through the votes they cast, and are not obliged to support the position of their political party or group in parliament, honour their pledges to it or vote as their parliamentary group directs. In parliamentary practice, the principle that mandates are independent and irrevocable is clearly waning in the face of party discipline and compliance with voting instructions, an inescapable feature of how parliamentary institutions operate today. The importance of the party system rests firstly, at the pre-election stage, on the process of nominating candidates and secondly, after the election, on the freedom of parties and groups to expel members whose conduct is disloyal or damaging to the party or group concerned.

22 June 2016

Tabled by Mr Serhii KIRAL, Mr Leonid YEMETS, Mr Valeriu GHILETCHI, Ms Chiora TAKTAKISHVILI, Mr Serhii SOBOLIEV

Votes: 8 in favor 30 against 8 abstentions

In the draft resolution, at the end of paragraph 6, insert the following words: "or to the national interests of the relevant state".

Explanatory note

The additional words slightly soften the definition. According to the report, these are actions taken by parties only in relation to conduct which is damaging or disloyal to the party. But it is normal in developing countries to exclude MPs when their actions are disloyal to the national interest.

7There is, then, a kind of “imperative mandate” operating in parliamentary institutions, through the threat of suspension or expulsion from one’s political party or group, with the pressure placed on parliamentarians leading them to resign or face sanctions.
8The Assembly points out that, notwithstanding the provisions of Rule 6 of its Rules of Procedure ensuring compliance with the principles of fair political representation and gender equality, the composition of national delegations and the appointment or replacement of their members are a matter for national parliaments, in accordance with their internal procedures. The same applies to the participation of members in sessions of the Assembly or meetings of its committees.
9The Assembly notes that, in the last few years, irregularities occurred in Assembly delegations, often bringing to light gaps and shortcomings in the rules of procedure of the national parliaments concerned. In particular:
9.1the rules of procedure of national parliaments have often been implicated in that they can serve as a legal front for measures imposing a disguised sanction founded on a political motive, particularly where delegation members are replaced on the pretext of individual resignations or an overall renewal of membership following elections;
9.2the rules of procedure of national parliaments are reported to have been misused to restrict travel or prevent the participation of a delegation member in a part-session or an Assembly committee meeting.
10It also expresses its profound concern at the serious infringements of the independence and freedom of expression of some of its members or now former members, who have been the target of disguised sanctions on the part of the parliament or their national political party.
11In this connection, the Assembly firmly points out that the European Court of Human Rights attaches the utmost importance to freedom of expression in the context of political debate, and affords enhanced protection to it, by establishing in its case law the principle of the free expression of parliamentarians as a condition sine qua non for their independence in the discharge of their mandate. The Court considers it essential, in a democratic society, to “defend freedom of political debate, which is at the very core of the concept of a democratic society”.
12Moreover, the Assembly considers that although, at national level, party discipline is a prerequisite for stable parties and party coalitions and the effectiveness of their policy, such considerations are less relevant when it comes to promoting within the Parliamentary Assembly the aims and basic principles of the Council of Europe and collaborating “sincerely and effectively” in the promotion of “ideals and principles which are the [Europeans’] common heritage”.

22 June 2016

Tabled by Mr Serhii KIRAL, Mr Leonid YEMETS, Mr Valeriu GHILETCHI, Mr Egidijus VAREIKIS, Ms Chiora TAKTAKISHVILI, Mr Serhii SOBOLIEV

Votes: 9 in favor 34 against 3 abstentions

In the draft resolution, replace paragraph 12 with the following paragraph:

"Moreover, the Assembly considers that although, at national level, party discipline is a prerequisite for stable parties and party coalitions and the effectiveness of their policy, which leads to the proper functioning of democracy, such considerations are less relevant, but remain important when it comes to promoting within the Parliamentary Assembly the aims and basic principles of the Council of Europe and collaborating "sincerely and effectively" in the promotion of "ideals and principles which are [Europeans'] common heritage" and are overriding fundamental human rights."

Explanatory note

As mentioned in the report, party discipline must be considered as part of effective functioning of democracy. However, the paragraph emphasises only the individual freedom of MPs, excluding political party matters. Our amendment seeks to restore the balance.

13The Assembly considers that its members should enjoy a status comprising recognition of minimum guarantees in the exercise of their European mandate, and that there is a need to promote a certain number of principles based on a proper balance between freedom of opinion and parliamentary votes and respect for the political obligations that flow from membership of a political party or group. It calls on national parliaments and their delegations to the Assembly to recognise and take due account of the following general principles, which should regulate the conditions under which the Assembly mandate is exercised:
13.1with regard to the guarantees and rights enjoyed by Assembly members:
13.1.1Assembly members exercise their mandates freely and independently; they are not bound by any instructions from their delegation, their national political party or their political group in the Assembly;

22 June 2016

Tabled by Mr Serhii KIRAL, Mr Leonid YEMETS, Mr Valeriu GHILETCHI, Mr Egidijus VAREIKIS, Ms Chiora TAKTAKISHVILI, Mr Serhii SOBOLIEV

Votes: 8 in favor 29 against 8 abstentions

In the draft resolution, replace paragraph 13.1.1 with the following paragraph:

"Assembly members exercise their mandate freely and independently; they are not bound by, albeit should act with respect for, any instructions from their delegation, their national political party or their political group in the Assembly;".

Explanatory note

We couldn't give an absolute freedom to elected representatives.

13.1.2Assembly members express their opinions freely, whether through their statements, speeches or votes, in all their activities in the Assembly and its various bodies, while complying with Rule 22 of the Rules of Procedure and rules of conduct in the Assembly;
13.2with regard to the duties of Assembly members:
13.2.1Assembly members shall act in accordance with the Rules of Procedure and rules of conduct; they participate in a responsible and constructive manner in the Assembly’s work;
13.2.2Assembly members have a duty of accountability to their delegation, their national political party and their political group in the Assembly; they act in compliance with the principles of transparency, honesty, integrity and trust.

22 June 2016

Tabled by Mr Serhii KIRAL, Mr Leonid YEMETS, Mr Valeriu GHILETCHI, Mr Egidijus VAREIKIS, Ms Chiora TAKTAKISHVILI, Mr Serhii SOBOLIEV

Votes: 5 in favor 36 against 6 abstentions

In the draft resolution, at the end of paragraph 13.2.2, insert the following words: ", and in accordance with the national interests of their countries".

Explanatory note

Assembly members must act also as national representatives of their countries.

14Recalling Resolution 1640 (2008) on the use by Parliamentary Assembly members of their dual parliamentary role – both national and European, the Assembly urges national parliaments to review their rules of procedure and their practice relating to the participation of delegations in Assembly sessions and the meetings of Assembly committees and other bodies, and calls on them to revise any provisions which hinder the effective participation of members in the activities of the Assembly, in particular of substitutes when they are assigned specific functions in the Assembly and its committees.
15In this connection, the Assembly points out that, under both the Statute of the Council of Europe (Article 25) and its own Rules of Procedure (Rule 11), following parliamentary elections, the members of the Assembly remain full members until the parliament concerned makes new appointments. Consequently, parliaments are obliged to authorise their participation in the activities of the Assembly until they have seen to their effective replacement. The Assembly calls on the national parliaments concerned to change the rules prohibiting the participation of delegation members when parliament has been dissolved or, following elections and pending the appointment of a new delegation, the participation of those members who have not sought re-election or not been re-elected.
16Finally, the Assembly calls on the Congress of Local and Regional Authorities of the Council of Europe to review the status of local and regional elected representatives in Europe, in particular the question of the revocation of their mandate.