C Explanatory memorandum
by Ms Azadeh Rojhan, rapporteur
1 Introduction
1. The 21st century
has seen a significant growth in the scale and visibility of political
lobbying. The exchange of information and ideas between civil society
and public decision makers is a necessary and important part of
democracy. However, lobbying can endanger democratic good governance
if the influence and authority of lobbyists extend beyond their
legitimacy and transparency. The increase of lobbying activities in
societies is often matched by an increase in public demand for regulation
of such activities.
2. The Parliamentary Assembly has led calls for greater transparency.
In April 2010 the Assembly adopted
Recommendation 1908 (2010) “Lobbying in a democratic society (European code of
conduct on lobbying)”, which called on the Committee of Ministers
of the Council of Europe to produce a European code of good conduct
on lobbying. Following subsequent Assembly recommendations on a
similar theme, in 2017, the Committee of Ministers adopted Recommendation
CM/Rec(2017)2 on the legal regulation of lobbying activities in
the context of public decision making. This period coincided with
a proliferation of lobbying regulations in different member States.
Note
3. Meanwhile, the regulatory provisions of the Assembly itself
have remained more limited. For example, there is no specific code
of conduct for lobbyists/NGOs nor any ‘lobby register’ of individuals
or organisations carrying out advocacy at the Assembly. The code
of conduct for members has clear prohibitions on them carrying out
lobbying activities at the Assembly or obtaining personal benefit
from their work at the Assembly – but beyond this it gives limited
guidance on how members and the secretariat should interact with
lobbyists/NGOs.
4. The authors of the motion for a resolution called for a strengthening
of the transparency regulations of the Assembly. They proposed a
mandatory register for members to disclose with which NGOs and lobby groups
they interact; a mandatory register for lobbyists and NGOs active
within the Assembly, where they describe their mission statement,
by whom they are financed and with which Assembly members they meet; and
a separate code of conduct for lobbyists and NGOs.
5. When examining the case for reform of the Assembly’s regulations,
it is important to consider the particular context of the Assembly.
A significant number of persons carrying out advocacy at the Assembly
are doing so because they believe their governments are acting in
a repressive fashion or are not complying with human rights and
rule of law standards. There are many cases where such repressive
actions have been confirmed by the European Court of Human Rights,
ranging from killings carried out by State actors, to the imprisonment
of politicians, activists, journalists and lawyers who are deemed
to be political opponents.
Note It
is important that greater transparency of lobbying at the Assembly
does not facilitate this kind of repression, by creating an easily
accessible list of persons whom certain government authorities may
wish to target. Transparency regulations should moreover not diminish
the ability of civil society representatives to engage with the
Assembly. Finally, any new regulations should be proportionate to
the human and financial resources of the Assembly (which are significantly
less than those available to national parliaments or the European Parliament)
and ensure that the administrative burden on Assembly members is
proportionate.
6. The present report takes place against a wider background
of reflection by the Council of Europe as a whole about how to strengthen
engagement with civil society. Following their meeting in Reykjavik
on 16 to 17 May 2023, Heads of State and Government of the Council
of Europe member States issued the “Reykjavik Declaration – United
around our values”, calling,
inter alia,
for a review and further reinforcement of the Organisation’s outreach
to, and meaningful engagement with, civil society organisations
and national human rights institutions
.Note
7. It was my firm conviction that, in a context where Heads of
State and Government have declared that the Organisation should
increase outreach and engagement to civil society, the Assembly
could not issue a report covering only the question of increasing
the regulation of civil society (without also looking at how outreach
and engagement with civil society can be increased). In the course
of preparing this report, I was also worried by reports of perceptions
that the Assembly had become less accessible to civil society.
8. During the preparation of the report, I therefore gathered
information about how the Assembly’s outreach to, and engagement
with, civil society could be improved, as well as how the transparency
of the engagement could be increased. Extensive research has been
conducted on transparency regulations in comparable institutions,
including through correspondence with relevant staff. Between 29
August and 26 September 2023 an online survey was carried out among
civil society organisations regarding possible improvements to transparency
regulations at the Assembly, as well as possible ways to increase
the Assembly’s outreach and engagement. At its meeting on 4 March
2024, the Committee on Legal Affairs and Human Rights held a hearing with
the participation of Mr Didier Migaud, President of the Haute Autorité
pour la transparence de la vie publique, the French institution
governing (among other things) the transparency of the National
Assembly and Senate. The committee also heard presentations from
Mr Jeremy McBride, President of the Expert Council on NGO law at
the Conference of International Non-Governmental Organisations (INGOs)
of the Council of Europe, and Mr Gerhard Ermischer, President of
the Conference of INGOs. Finally, on 30 March 2024, I received a
letter about the subject of my report from the Campaign to Uphold
Rights in Europe.
9. In this report I will first set out the rules currently in
force at the Assembly (in section 2). I will then examine the relevant
standards set in this area by the Council of Europe, including by
the Committee of Ministers, the Group of States against Corruption
(GRECO), and the European Commission for Democracy through Law (Venice
Commission) (section 3). Next, I will explore a series of additional
considerations which are relevant in the context of the Assembly
(section 4). I will then briefly outline relevant standards and
practices applicable in comparable institutions and some member
States (section 5). The next section of the report will address proposals
about how outreach to and meaningful engagement with civil society
could be increased (section 6). Finally, I will set out my analysis
and proposals for reforms. These include a code of conduct for interest representatives,
changes to the code of conduct for members of the Assembly, and
various measures to increase the Assembly’s outreach to and meaningful
engagement with civil society (section 7).
10. In regard to terminology, I note that some not-for-profit
entities regard their work to influence decision-making as “advocacy”,
reserving the term “lobbying” for the work of for-profit entities.
In this report, I do not wish to make a distinction between for-profit
and not-for-profit entities, as this is not consistent with the
relevant international standards (notably Committee of Ministers
Recommendation CM/Rec(2017)2). The word “lobbying” or “lobbyists”
is used in this report when referring to the standards on this issue
previously created or adopted by the Council of Europe or other
entities, as these terms were used in the original texts. In order to
avoid confusion on this issue, I propose that the Assembly adopts
the term “interest representative” in future. Apart from when referring
to existing texts and standards, I will use this term throughout
the report, with a similar definition as that used by the European
Union: any individual or organisation that carries out activities with
the objective of influencing the policy, guidelines, or decision
making of Council of Europe bodies.
Note
2 Rules currently in force at the Parliamentary
Assembly of the Council of Europe
2.1 Declarations
of interest
11. Following Rule 6.2.c and 13
of the Assembly’s Rules of Procedure, all members undertake to abide
by the Code of conduct for members of the Parliamentary Assembly
(“the Code of conduct”). This requires all members to complete and
submit a declaration of interests at the opening of each annual
session. The rules governing the declaration are further set out
in an explanatory note. There are eleven different types of interest that
members are required to declare. These include remunerated professional
activities, positions in companies, management or advisory positions
for institutions and non-commercial entities (including NGOs), consultancies,
donations, gifts, travel abroad paid for by others, and any relevant
interests of family members/staff. The declaration of each member
is published on the Assembly’s website.
Note
12. However, the declaration does not require Assembly members
to declare meetings that they have held with interest representatives,
in the fulfilment of their duties relating to the Assembly.
2.2 Other
relevant sections of the Code of conduct
13. The Code of conduct requires
Assembly members to: take decisions solely in the public interest
and not be bound by instructions that would jeopardise their ability
to respect the Code of conduct; avoid conflicts of interest and
resolve any conflict of interest in favour of the public interest
– or if they are unable to do so, disclose the conflict; and avoid
using their position to further the interests of themselves or others
(persons or entities) in a way that is incompatible with the Code
of conduct.
Note
2.3 The
Code of conduct for rapporteurs
14. Rule 50.1 of the Assembly's
Rules of Procedure requires members to act in accordance with the
Code of conduct for rapporteurs. Paragraph 1 requires rapporteurs
to act in accordance with the principles of neutrality, impartiality,
and objectivity. These principles include an obligation to declare
any economic, commercial, or financial interests connected with
the subject of the report; an undertaking not to accept any reward
or other personal benefit in connection with the exercise of their
duties; an undertaking to refrain from any act which may cast doubt
on their neutrality; and, of most relevance to this report, an undertaking
not to seek or accept instructions from any government or governmental
or non-governmental organisation, or pressure group or individual.
Note
15. Under paragraph 3 the Code of conduct for rapporteurs, a committee
can ask the rapporteur, or the rapporteur may decide themselves,
to publish, in an appendix to the draft report, a list of people
met in the process of drafting their report. Under
paragraph 4 of the code, if a rapporteur fails to honour one or
more undertakings, in particular if they failed to declare any relevant
interests or made an untruthful declaration, the committee shall
withdraw their mandate and replace them.
2.4 Access
to the Council of Europe premises
16. Appendix XVII of the Assembly’s
Rules of Procedure sets out the rules relating to accessing the premises
of the Council of Europe during Assembly part-sessions and committee
meetings. These include some regulations relevant only to Assembly
sessions and committee meetings, but also incorporate subsidiary rules
issued by the Secretary General of the Council of Europe and the
Director General of Administration.
Note The premises of the Assembly
are accessible to members of NGOs that are part of the Council of
Europe Conference of INGOs; individuals with press accreditation;
and also persons who have been invited by a parliamentarian, parliamentary
delegation, political group, committee, or permanent representation.
17. The wearing of badges is compulsory. Areas of movement and
the right to access different areas should be determined by the
issuing of distinctive badges for each category of people. Parliamentarians
should assume full responsibility for movements, behaviour and departures
of the people they have invited. No parliamentarian may invite more
than six people per day. The maximum period for which badges may
be issued for interest representatives is one day, but this rule
is applied more flexibly in practice. Access to the chamber is restricted
to members of national delegations, government representatives,
certain staff members of the Council of Europe and delegations and
the heads of other Council of Europe bodies. Other individuals can
only access the chamber upon invitation from the President or the
Secretary General of the Assembly.
Note
18. Any persons who are in an area which they were not authorised
to enter without good reason, or whose behaviour compromises the
smooth conduct of Assembly business, may, at the request of the
President or the Secretary General of the Assembly, be removed and
permanently prohibited from entering the Council of Europe. The
President or the Secretary General of the Assembly may ask the Directorate
General of Administration/Directorate of General Services to deny
access to any individuals in respect of whom he/she has been informed
or has good reason to believe that their behaviour is liable to
disrupt the activities of the Assembly.
Note
19. Committee meetings are held in private and are accessible
only to members of the Assembly, as well as relevant staff members
of the Council of Europe, political groups, and member State governments.
The chairperson of a committee may also invite guests and experts
for a hearing on a specific agenda item, as well as persons from
a limited list of Council of Europe bodies.
Note Committees
may decide that a certain part of a meeting may be open to the public,
but this can only apply to hearings or exchanges of views, which
are held with experts, government officials, representatives of
international organisations, or members of civil society.
Note
20. A committee may decide to hold all or part of a meeting
in camera, with only members of
the committee and its secretariat present. The Committee on the
Honouring of Obligations and Commitments by Member States of the
Council of Europe (Monitoring Committee) and the Committee on the
Election of Judges to the European Court of Human Rights shall meet
in camera, except in the case of
joint meetings with other committees or hearings or exchanges of
views if the committee so decides.
Note
2.5 Previous
debate concerning a transparency register
21. The rules set out above were
put in place by the Committee on Rules of Procedure, Immunities
and Institutional Affairs following the proposals included in Assembly
Resolution 2182 (2017) “Follow-up to
Resolution
1903 (2012): promoting and strengthening transparency, accountability
and integrity of Parliamentary Assembly members”, as well as
Resolution 2170 (2017) “Promoting integrity in governance to tackle political
corruption”. These resolutions also called for the creation of a
transparency register within the Assembly.
Note At its meeting on
31 May 2018, the Bureau discussed this issue, on the basis of a
memorandum on the subject of access to the Assembly prepared by
the Secretary General of the Assembly. This memorandum explored
the recommendations of the Group of States against Corruption (GRECO)
on transparency regulations in the Assembly; the added benefits
that a lobby register would bring to transparency; the issues involved
in such a register; and the possibility of introducing a code of
conduct for lobbyists/NGOs. The memorandum noted that a transparency
register was technically feasible and would bring benefits in terms of
transparency. However, a number of concerns were also raised, including:
the fact that access to the Council of Europe as a whole was not
regulated by the Assembly, so any requirement to register in order
to have access to the Palais might have limited impact; the risk
of pressure or repression being carried out against individuals/organisations
publicly listed on a register; and the Assembly’s resource limitations.
The Bureau of the Assembly invited the Committee on Rules of Procedure,
Immunities and Institutional Affairs “to give further consideration
to the question of the possible creation of a transparency register
of interest representatives”.
Note
22. The Committee on Rules of Procedure, Immunities and Institutional
Affairs discussed additional transparency regulations in meetings
held on 3-4 September 2018 and 15 January 2019. Members of the committee
raised a number of points in favour of a register, relating to the
benefits for transparency and security. However, at the same time,
large range of concerns were raised on the issue, including: a reluctance to
introduce a new bureaucratic mechanism without a compelling reason;
that a transparency register was not necessary given that the Assembly
did not work on economic regulation and was therefore not subject
to high levels of corporate lobbying; that a transparency register
would only serve to restrict legitimate passing of information to
Assembly members, particularly by smaller organisations; and that
a transparency register would create a disproportionate burden on
the Assembly’s limited resources. Given the existence of these concerns,
ultimately in a meeting of 15 January 2019 a majority voted not
to adopt a transparency register at the Assembly. Some members also
spoke briefly in favour of a new code of conduct for those carrying
out lobbying, but a vote was not taken on proposals to introduce
such a measure.
Note
2.6 The
Secretary General’s Roadmap on the Council of Europe Engagement
with Civil Society
23. In September 2023, the Secretary
General of the Council of Europe initiated a process to implement elements
of the Reykjavik Declaration, regarding the need to reinforce the
Council of Europe’s engagement with civil society. The “Roadmap
on Civil Society Engagement” notes that there are multiple codes
of conduct in place for civil society’s engagement with different
aspects of the Organisation (including for the Advisory Council
on Youth, the Conference of INGOs, and the World Forum for Democracy).
The Roadmap suggests that a single, harmonised code of conduct for
the Organisation’s engagement with civil society should be considered.
According to information provided by the Council of Europe secretariat,
the current proposal is that such a code of conduct will take the
form of a framework, which may be adapted and taken up by different
parts of the Organisation according to their different needs.
Note
3 Council
of Europe standards
3.1 Parliamentary
Assembly
24. In April 2010 the Assembly
adopted
Recommendation
1908 (2010) “Lobbying in a democratic society (European code of
good conduct on lobbying)”. The Assembly noted the constant increase
in the activities of various interest groups, both at the level
of member States and of European institutions. Whilst it is perfectly legitimate
for members of society to organise and lobby for their interests,
the Assembly noted that unregulated lobbying may undermine democratic
principles of good governance. There was no single solution to the questions
raised by lobbying activities and at the time very few member States
had introduced lobbying regulations of any kind. The Assembly concluded
that pluralism of interests was an important feature of democracy,
but that lobbying for those interests must be fair and equal, transparent
and governed by democratic rules.
25. Taking this into account, the Assembly recommended that the
Committee of Ministers elaborate a European code of good conduct
on lobbying based on the following principles:
- lobbying should be very clearly
defined, differentiating between lobbying as a professionally compensated
activity and the activities of civil society organisations, not
forgetting self-regulating entities in different economic sectors;
- transparency in the field of lobbying should be enhanced;
- rules applicable to politicians, civil servants, members
of pressure groups and businesses should be laid down, including
the principle of potential conflicts of interest and the period
of time after leaving office during which carrying out lobbying
activities should be banned;
- entities involved in lobbying activities should be registered;
- prior consultations should be held with lobbying organisations
on any draft legislation in this field;
- well-defined, transparent, honest lobbying should be encouraged
so as to improve the public image of persons involved in these activities.
26. Resolution 1744
(2010) “Extra-institutional actors in the democratic system”
later in the same year reiterated the Assembly’s concerns and invited
the Venice Commission to publish an opinion on lobbying (which is
described below). The Assembly raised the issue again in
Resolution 1943 (2013) “Corruption as a threat to the rule of law”, adopted
in 2013, once again calling on the Committee of Ministers to produce
a European code of good conduct in regard to lobbying.
3.2 Committee
of Ministers
27. In March 2017 the Committee
of Ministers adopted Recommendation CM/Rec(2017)2 on the legal regulation
of lobbying activities in the context of public decision making.
Similarly to Assembly
Recommendation
1908 (2010), this text recognised that lobbying can make a legitimate
contribution to well-informed public decision making, but that transparency,
accountability, and ultimately regulation could strengthen the legitimacy
and integrity of the process. The Committee of Ministers considered
that there was a need to encourage the adoption of appropriate frameworks
based on common principles. It therefore recommended that governments
of member States, “establish or further strengthen, as the case
may be, a coherent and comprehensive framework for the legal regulation
of lobbying activities in the context of public decision making”,
in accordance with principles set out in the appendix to the recommendation
and taking into account national circumstances.
Note
28. The appendix to the recommendation sets out a definition of
lobbying as promoting “specific interests by communication with
a public official as part of a structured and organised action aimed
at influencing public decision making.” The appropriate objective
of legal regulation is identified as “promoting the transparency
of lobbying activities”. Information on lobbying activities in the
context of public decision making should be disclosed, but the rules
on disclosure should be proportionate to the importance of the subject
matter of the public decision-making process, should reflect constitutional
guarantees, and should not infringe on the rights of individuals
to express opinions or campaign for political/legislative changes.
The Committee of Ministers recommended that a register of lobbyists
should be maintained. This should be easily accessible to the public and
contain, as a minimum, information on the name and contact details
of the lobbyist, the subject matter of the lobbying activities,
and the identity of the client or employer (where applicable).
Note
29. The Committee of Ministers also sets out standards of ethical
behaviour for lobbyists, who should be guided by principles of openness,
transparency, honesty and integrity. In particular, they should
be expected to:
- “provide accurate
and correct information on their lobbying assignment to the public
official concerned;
- act honestly and in good faith in relation to the lobbying
assignment and in all contact with public officials;
- refrain from undue and improper influence over public
officials and the public decision-making process; and
- avoid conflicts of interest”.Note
30. There should also be appropriate guidance to public officials
on their relations with lobbyists, tailored to national circumstances,
in particular concerning:
- “refusing
or disclosing the receipt of gifts and hospitality offered by a
lobbyist;
- how to respond to communications from lobbyists;
- reporting violations of the regulations or rules of conduct
on lobbying activities;
- disclosing conflicts of interest;
- preserving the confidentiality of data”.Note
31. Legal regulations on lobbying should contain effective, proportionate
and dissuasive sanctions for non-compliance. Oversight of the regulations
on lobbying activities should be entrusted to designated public authorities.
Note Oversight
may include the monitoring of compliance with regulations, providing
guidance on the application of the regulations, and raising awareness
among lobbyists, public officials and the public.
Note
3.3 Group
of States Against Corruption (GRECO)
32. In June 2017 GRECO published
an analysis of the Code of conduct for Assembly members. The assessment
noted that the Assembly had played a key role in promoting the need
to regulate and increase transparency of lobbying activities, but
that it had not itself established a comprehensive set of rules
and arrangements in the area. Interlocutors spoken to in the drafting
of the GRECO report noted that the premises of the Assembly are
accessible to a wide variety of persons, and that members or secretariat
did not always have the means to properly identify whom they were
meeting with. The GRECO analysis indicated that Committee of Ministers
Recommendation Rec(2017)2 “could be easily adapted by PACE”.
Note
33. In regard to the conduct of Assembly members, it was noted
that the Code of conduct prohibited members from acting as lobbyists
in the Assembly themselves, but that it did not regulate how they
could engage with lobbyists and other third parties seeking to influence
the Assembly. An exception to this was section 1.1.2 of the Code
of conduct for rapporteurs, which prohibits rapporteurs seeking
or accepting instructions. GRECO suggested that this safeguard should
be broadened so that it applied to Assembly members other than rapporteurs
whose responsibilities were equally relevant, such as chairpersons
of committees and sub-committees, leaders of political groups, members
of the Bureau, and the President of the Assembly. Overall, GRECO
recommended that the Assembly “introduce a robust and consistent
set of rules for PACE members on how to engage in relations with
lobbyists and other third parties seeking to influence the parliamentary
process.”
Note
34. GRECO’s Fourth Round Evaluation reports have addressed how
this should be done, by assessing the need for national parliaments
to provide for proper rules on how parliamentarians engage with
persons seeking to influence their work.
3.4 Venice
Commission
35. Following a request from the
Assembly, in 2013, the Venice Commission published a report “on
the role of extra-institutional actors in a democratic system (Lobbying)”.
This stated that lobbying regulations in national parliaments normally
contained all or some of the following features: (1) a requirement
for lobbyists to register with the State before contact can be made
with any public official; (2) a requirement for lobbyists to clearly indicate
which ministry/public actors they intend to influence; (3) a requirement
for lobbyists to clearly outline individual and/or employer spending
disclosures; (4) a publicly available list with lobbyists’ details;
(5) a lobbying supervisory authority that performs periodic audits
and enforces the regulations and sanctions those who do not abide
by them; and (6) a prohibition on former public officials immediately
working as lobbyists once they have left public office. The report
also highlights that the principal way by which States ensure that lobbying
laws are respected is through the creation of a lobbying supervisory
authority.
Note
36. The Venice Commission noted that additional financial cost
was a disadvantage of introducing lobbying regulations. Nevertheless,
the regulation of lobbying activities was a suitable response to
the needs of both strengthening the positive aspects of the role
of extra-institutional actors and to countering the drawbacks, if not
threats to the democratic process, that lobbying might entail.
Note
4 Additional
considerations regarding transparency regulations in the context
of the Assembly
4.1 Ensuring
civil society access to Council of Europe institutions
37. It is important that any new
regulations on civil society engagement with the Assembly do not inappropriately
restrict civil society’s participation in the Assembly’s work. This
would be contrary to the stated goal of the Committee of Ministers,
which has emphasised in recent years the need to strengthen civil
society’s involvement in the institution. Most notably, following
the Summit on 16-17 May 2023, Heads of State and Government of the
Council of Europe issued the “Reykjavik Declaration – United around
our values”, calling,
inter alia,
for “a review and further reinforcement of the Organisation’s outreach
to, and meaningful engagement with, civil society organisations
and national human rights institutions.”
Note Similarly,
in the May 2021 meeting of the Committee of Ministers in Hamburg,
ministers agreed on a strategic framework of the Council of Europe
for the following four-year period, in which they “reiterated the
importance of further strengthening the role and meaningful participation
of civil society organisations as well as national human rights
institutions in the Organisation”.
Note
38. The Assembly has adopted a number of Resolutions urging states
to strengthen civil society space.
Note For example,
Resolution
2095 (2016) called on member States to “refrain from adopting laws
that impose disproportionate restrictions on defenders’ activities”;
Note and
Resolution
2362 (2021) urged member States to “refrain from enacting new legislation
entailing unnecessary and disproportionate restrictions on NGO activities”.
39. During consultations with civil society in the preparation
of this report, participants were generally positive about the introduction
of a code of conduct for interest representatives engaging with
the Assembly (provided that it would not unduly restrict the activity
of civil society or be open to misuse).
40. Meanwhile, feedback concerning a transparency register was
more cautious. Responses to the online survey of civil society organisations
indicated that most NGOs were not in principle opposed to a transparency register
at the Assembly, as long as it was designed keeping in mind the
need to avoid or mitigate certain issues. One of the issues mentioned
was unnecessary or cumbersome bureaucratic barriers to civil society participation,
which would have a particularly negative impact on smaller organisations.
The problem of administrative barriers was also raised in oral evidence
by the President of the Council of Europe Conference of INGOs, Gerhard
Ermischer; and the President of the Expert Council on NGO Law, Jeremy
McBride. Mr McBride also noted that a register might be used by
some as a way to actively prevent NGO participation in the Assembly.
4.2 Ensuring
the safety of civil society
41. The Assembly has a particular
role in Europe’s public debate. As the deliberative organ of the
Council of Europe, it is a forum for discussing the protection of
human rights, democracy, and the rule of law. This involves assessments
about the degree to which these fundamental values are being protected
in member States. Inevitably, this means that civil society engaging
with the Assembly will often be doing so to highlight perceived
shortcomings in the law and practices of States relating to human
rights, democracy, and the rule of law. Unfortunately, there are
many serious allegations of member States carrying out repressive
activities against such critical voices.
42. This repression has been well documented in judgments of the
European Court of Human Rights. Examples include the abduction and
killing of independent journalists;
Note the arbitrary imprisonment
of the leaders of rival political parties;
Note disbarment of lawyers
representing such political opponents
Note or who
have been critical of government policy;
Note the termination
of mandates of judges who raise concerns about the protection of
judicial independence
Note or act in defence of
the rule of law;
Note and the arrest and imprisonment
of youth activists to punish them for political engagement.
Note
43. Human rights violations have also become increasingly transnational,
as highlighted in a resolution and recommendation adopted in 2023
by the Assembly addressing transnational repression by State actors.
Note The Assembly urged
governments to ensure the protection within their own borders of
individuals who are at risk of human rights violations perpetrated
by foreign State actors. This also applied to human rights defenders
and activists who engage with international organisations including
the Council of Europe. In 2024, the Assembly adopted a resolution
highlighting the particularly high risks faced by members of the
Russian and Belarusian democratic forces, many of whom are in exile
abroad and continue their engagement with the Assembly.
Note
44. It is essential that the Assembly protects those who are brave
enough to highlight perceived threats to human rights, democracy,
and the rule of law in their own countries to members of the Assembly.
Responses to the online survey of civil society organisations indicated
that a transparency register must protect the identity and privacy
of individuals. The oral evidence by Gerhard Ermischer and Jeremy
McBride urged the committee very strongly to take into account the
context of possible repression of advocacy towards the Assembly,
and avoid creating a transparency register for the Assembly which
might expose individuals to danger.
4.3 Ensuring
the proportionality of transparency regulations with the resources
of the Assembly and its members
45. The Assembly is a “part-time”
assembly, in the sense that it is composed of parliamentarians from member
States’ legislatures, who meet for limited periods each year. As
a result, the Assembly does not have the same resources as a national
legislature or the European Parliament; or the capacity to ensure
the raising of additional funds for new areas of activity. It would
therefore not be advisable to establish transparency regulations
requiring significant administrative resources, unless it is clear
that additional funds could be found to support this.
46. This consideration should affect the evaluation of the proportionality
of enacting certain types of transparency regulations. For example,
France’s Haute Autorité pour la transparence de la vie publique
is an independent body responsible for declarations of assets and
interests by public officials, as well as a register of individuals
and organisations engaged in lobbying. It is engaged in facilitating
the declarations of a very large number of people, as well as monitoring
and complaints. Nevertheless, it is worth noting that the High Authority has
65 permanent staff and a budget of around €8 million.
Note The total budget for the whole
of the Assembly’s activities is just under €20 million.
Note Even taking into
account the large number of people monitored by France’s High Authority,
the figures give some indication of the additional resources that
would be required to ensure the functioning of certain regulatory
requirements at the Assembly.
47. It is also important to assess the administrative burden on
Assembly members. In particular, the motion for a resolution on
this topic calls for a requirement that every member submit a declaration
about meetings they have with certain third parties on the subject
of Assembly business. It is not clear whether this is a proportionate
measure, particularly given the part-time nature of parliamentarians’
work at the Assembly and the fact that these requirements would
come on top of the requirements under the existing Assembly rules
and those imposed by their national parliaments.
5 Standards
and practices of other parliaments
5.1 Organization
for Security and Co-Operation in Europe Parliamentary Assembly and
North Atlantic Treaty Organization Parliamentary Assembly
48. The OSCE and NATO Parliamentary
Assemblies are composed of parliamentarians from the legislatures
of their member States, who meet on a “part time” basis throughout
the year in various committees and plenary sessions. In this sense,
they are a good comparison for the Parliamentary Assembly of the
Council of Europe.
49. The OSCE and NATO Parliamentary Assemblies do not have transparency
registers of interest representatives carrying out activities with
their members, or a code of conduct for interest representatives. They
do not regulate the relationship between their members and interest
representatives, either through a code of conduct or their rules
of procedure.
Note
5.2 European
Parliament
50. The European Parliament, the
Council of the European Union and the European Commission have a joint
Transparency Register, in the form of an online database listing
the individuals and organisations that try to influence EU policy
and legislation. The register is voluntary, but each of the three
EU institutions above requires registration as a precondition for
carrying out certain activities. In regard to the European Parliament, individuals/organisations
need to be registered if they wish to have a badge to enter EP buildings;
or participate as a speaker in committee hearings, events taking
place in the premises, or activities of MEP groupings. According
to the Code of conduct for members of the European Parliament, all
members should only meet interest representatives that are registered
on the transparency register. All registrants on the Transparency Register
must respect a code of conduct.
Note
51. The secretariat of the Transparency Register carries out investigations
into alleged cases of registrants’ non-observance of the Code of
Conduct, either on its own initiative or after a complaint. In serious
cases, or where the interest representative refuses to alter their
declaration on the register, the Secretariat may issue an ineligibility
decision with a removal from the register.
Note
52. The secretariat has the equivalent of ten full-time employees.
The total cost for the IT development, maintenance, and hosting
of the register for 2024 was estimated to be €489 000 (which included
changes to the IT infrastructure).
Note
53. Members of the European Parliament are required to publish
online all scheduled meetings related to parliamentary business
conducted by themselves or their parliamentary assistants with interest representatives
and representatives of third countries (whether they are registered
or not). Members must not publish a meeting the disclosure of which
would endanger the life, physical integrity or liberty of an individual or
may decide not to publish a meeting where there are other compelling
reasons for maintaining confidentiality. Such meetings shall instead
be declared to the President, who shall keep this declaration confidential
or shall decide on an anonymised or delayed publication, under conditions
set down by the Bureau.
Note
5.3 France
54. France’s Haute Autorité pour
la transparence de la vie publique was created in 2014. It is an
independent body responsible for declarations of assets and interests
by public officials, as well as a register of individuals and organisations
engaged in interest representation.
Note The register operates as follows:
persons or organisations engaged in interest representation are
obliged to register within two months of commencing activities that
fall under the definition of lobbying; they need to disclose their
identification, the identification of senior executives and individuals
engaged in interest representation, the scope of activities, their
membership in organisations, and – if the interest representative
carries out activities on behalf of third parties - the identity of
these third parties. The obligation to declare this information
is one element of a list of ethical rules that interest representatives
are obliged to abide by. When the High Authority detects a breach
of the rules (including a failure to properly register information),
it sends a formal notice to the interest representative in question.
The formal notice, which may be published, orders the interest representative
to comply with its obligations, after allowing him or her to present
his or her observations. During the three-year period after a formal
notice has been issued, any failure to abide by the ethical obligations
is punishable by one year’s imprisonment and a €15 000 fine.
Note
55. There is no obligation for interest representatives to declare
particular meetings they have with parliamentarians; or for parliamentarians
to declare meetings that they have with interest representatives.
5.4 United
Kingdom
56. In the UK there is a mandatory
register for specific types of lobbying, and a voluntary register
for wider instances of lobbying.
57. The Office of the Registrar of Consultant Lobbyists is an
independent statutory office, under the Transparency of Lobbying,
Non-party Campaigning and Trade Union Administration Act 2014. The
registrar manages the UK Register of Consultant Lobbyists. This
is a statutory register of lobbyists, but only consultant lobbyists
need to register – and only if they are lobbying ministers or senior
civil servants. Lobbyists acting on behalf of themselves or of their
employer do not have an obligation to register, but there are voluntary registration
schemes. Furthermore, there is no obligation to register in order
to conduct lobbying with parliamentarians (unless the parliamentarian
is also a minister).
Note Consultant
lobbyists are also obliged to submit details of clients they have
lobbied for or have been paid to lobby for each quarter. There is
no obligation to declare every meeting. The registry does not require
lobbyists to abide by a code of conduct, although relevant voluntary
codes of conduct can be declared in the registry.
Note
58. In addition to the mandatory Register of Consultant Lobbyists,
there is also the voluntary UK Lobbying Register, which is run by
an industry body. This register exists to promote transparency and
professional standards in lobbying, applicable to lobbying that
falls outside the limited scenarios requiring mandatory registration
on the Register of Consultant Lobbyists, including the lobbying
of parliamentarians, and any lobbying carried out by individuals
representing an organisation (or themselves), rather than consultants working
for a third party. Registration includes signing up to a code of
conduct.
Note
6 Proposals
to increase the Assembly’s engagement with civil society
6.1 Secretary
General of the Council of Europe
59. As set out in the introduction,
in the Reykjavik Declaration Heads of State and Government of the
Council of Europe agreed to review and further reinforce the Organisation’s
outreach to, and meaningful engagement with, civil society organisations
and national human rights institutions.
60. In September 2023, the Secretary General of the Council of
Europe initiated a process to make this happen in practice, through
the “Roadmap on Civil Society engagement”. The Roadmap proposes
that the Council of Europe carry out more awareness-raising with
civil society about the Organisation’s work, as well as promote
better technical understanding of the Council of Europe’s activities
and a greater recognition of civil society’s input into them. The
Roadmap proposes that civil society’s access to the Council of Europe’s
work should be enhanced, including through a co-ordinated institutional
approach. Suggestions made in the Roadmap which are of particular
note include the following:
- information
sessions for civil society on the Council of Europe’s work (including
during sessions of the Parliamentary Assembly);
- capacity building efforts targeting NGOs, to enhance their
ability to engage with the Organisation;
- inclusion of public contributions from civil society in
the Organisation’s reporting processes;
- enhanced modalities to facilitate civil society participation,
including new modalities such as online meetings and regular consultations;
- practical guides for civil society on the Council of Europe;
- guidelines, exchanges, and training for Council of Europe
Secretariat members on civil society participation, to ensure a
streamlined and homogeneous approach to facilitating civil society engagement
and synergies within the Organisation;
- a programme to enable civil society secondments to the
Organisation.Note
61. The Committee of Ministers welcomed the Roadmap as a significant
step in the follow-up of the relevant parts of the Reykjavik Declaration.
Note
6.2 Online
survey of civil society organisationsNote
62. The following proposals were
made most often by respondents:
- making
Assembly documents available on the website at an earlier stage
and in a more accessible way;
- enabling civil society to reserve meeting rooms and hold
events;
- ensuring civil society can have access to Council of Europe
premises, through long-term badges; and,
- regular exchanges between civil society and Assembly members,
for example with the Presidential Committee or the Bureau of the
Assembly, particular committees, or the Assembly as a whole.
63. Other proposals included the following:
- a dedicated Assembly online portal for civil society with
links to all relevant practical and substantial information;
- the possibility to subscribe to email updates of relevant
committees or other working structures;
- making one person in each committee responsible for liaising
with civil society, or some other form of providing for dedicated
personal engagement;
- taking into account the high cost of travelling to Strasbourg
for smaller organisations:
- increasing
the use of live-stream for hearings;
- ways for civil society to “e-meet” members attending Assembly
part-sessions;
- covering travel and accommodation costs for smaller organisations
to attend annual exchanges between Assembly members and civil society;
- opportunities for NGO representatives to substantially
participate in debates and propose reports;
- collaboration initiatives between civil society and the
Assembly, through communication and awareness-raising at national
level.
6.3 Conference
of International Non-Governmental Organisations of the Council of
Europe
64. In his presentation to the
Committee on Legal Affairs and Human Rights, the President of the Conference
of INGOs of the Council of Europe, Gerhard Ermischer, stated that
the wide variety of rules for different parts of the Organisation
create confusion and are a barrier to participation. Mr Ermischer
also expressed his view that the Parliamentary Assembly had become
less open to civil society. He proposed the following measures to
assist engagement:
- consistent,
clear and transparent rules that apply across the different parts
of the Council of Europe as a whole;
- ùore committee meetings being held in public;
- an easier process for civil society to participate and
organise side events during part-sessions, decreasing the time that
such requests need to be made in advance;
- an email to be sent out by Assembly staff to all members
of the Conference of INGOs, to invite registrations to participate
in upcoming part-sessions (as is carried out by the Congress of
Local and Regional Authorities).
6.4 Campaign
to Uphold Rights in Europe
65. In the course of the preparation
of this report, I received a letter from the Campaign to Uphold
Rights in Europe. CURE is a project run by leading European civil
society organisations that work with the Council of Europe, including
the Norwegian Helsinki Committee, the Centre for Civil Liberties
(Kyiv), and the Helsinki Foundation for Human Rights. The website
of CURE describes its mission as making the Council of Europe stronger
and making the voice of civil society prominently heard.
66. The letter from CURE stated that the Assembly (and the Council
of Europe in general) had introduced a number of restrictive measures
over recent years, in response to the “caviar diplomacy” corruption
scandal, terrorist attacks on the territory of France, and the Covid-19
pandemic. According to CURE, these measures have significantly restricted
NGOs’ access to the Assembly, and their opportunities to meaningfully
engage with it.
67. CURE recommended a series of measures that would remove barriers
and create additional opportunities for NGO engagements. These can
be summarised as follows:
- improving
NGO access to the Council of Europe’s premises, including by allowing
NGOs to request access to the Assembly during part-sessions;
- granting NGOs attending part-sessions access to an office
in the Palais;
- improving NGO access to the Assembly’s documents and information,
including introductory memoranda for reports under preparation,
minutes of hearings, and contact details of Assembly members;
- improving opportunities for NGOs to organise side-events,
by making more rooms available, shortening the one-month deadline
for requesting side-events, making it easier to advertise side-events,
and allowing NGOs to organise side events on their own (without
being sponsored by an Assembly member);
- increasing other opportunities for NGOs to present their
views and disseminate information at the Assembly, such as by allowing
them to ask questions and make comments during committee hearings and
exchanges of views; intervening at the end of current affairs and
urgent procedure debates; and facilitating dissemination of their
materials to Assembly members electronically (such as through use
of the Assembly intranet) and physically (on information stands
and bulletin boards).
7 Analysis
and suggestions for reform
68. The Assembly’s approach to
this complex issue should be to enhance both transparency and civil society
engagement, whilst considering the relevant international standards,
the specific context of the Assembly, and the ongoing reforms in
the rest of the Council of Europe. I have sought to apply this balanced approach
to the key issues, leading to the proposals set out below.
7.1 A
code of conduct for interest representatives engaging with the Assembly
69. There is a clear case for establishing
a code of conduct for interest representatives engaging with the Assembly.
This should promote transparency and good conduct. At the same time
it should not be open to abuse for purposes of silencing particular
groups or individuals. It should be in line with the relevant international
standards, including Recommendation CM/Rec(2017)2 on the legal regulation
of lobbying activities in the context of public decision making.
70. In my view, the code should contain the relevant provisions
of the code of conduct for interest representatives at the European
Union (excluding, for example, the obligation to upload details
to a transparency register – see below). This requires interest
representatives, when interacting with parliamentarians, to declare
their name and who they work for, the interests and objectives they
promote, and the natural or legal persons that they represent. It
also prohibits interest representatives to use undue pressure, improper
behaviour, offensive language, or for them to induce members of
parliament to contravene the rules and standards applicable to them.
Note
71. Meanwhile, it is also important to note that the Council of
Europe is considering the introduction of a framework civil society
code of conduct, which may be adapted and implemented by different
parts of the Organisation according to their needs.
72. In my view, the Committee on Rules of Procedure, Immunities,
and Institutional Affairs should draft a code of conduct for interest
representatives (either in the context of a report under preparation
or a new one). The drafting of any code should be done in close
consultation with civil society and other relevant stakeholders, whose
needs should be carefully considered. It should also take into account
any framework code of conduct which is developed for the Organisation
as a whole, following the Secretary General’s Roadmap on the Council of
europe’s Engagement with Civil Society 2024-2027”.
7.2 Changes
to the Code of conduct for members
73. The Assembly should also review
its Code of conduct for members, to assess how to strenghten the provisions
governing how members engage with interest representatives. This
review should draw on the principles set out in Committee of Ministers’
Recommendation CM/Rec(2017)2, as well as the proposal in GRECO’s
2017 report to extend the prohibition on the taking of instructions.
Of particular note is the recommendation of GRECO that the prohibition
on the seeking or taking of instructions – currently only applicable
to rapporteurs – could be extended to a wider range of Assembly
members fulfilling important functions, such as chairpersons of
committees and sub-committees, leaders of political groups, members
of the Bureau, and the President of the Assembly. The Committee
on Rules of Procedure, Immunities and Institutional Affairs should
therefore also include this issue in its agenda.
7.3 Transparency
register
74. In my view, a transparency
register would not be appropriate in the context of the Assembly.
This is for two reasons.
75. First, any regulations introduced to enhance transparency
of interest representation should not expose people to danger. It
is difficult to see how a register of groups carrying out interest
representation could be an effective tool to promote transparency,
without it listing the names of the individuals involved. At the
same time, it is also hard to see how a public register of named
individuals who work to expose repression by their governments could
not also expose such individuals to a greater risk of repression
themselves. It would be inconsistent with the protection offered
by other bodies of the Council of Europe – such as monitoring bodies and
the Commissioner for Human Rights – who operate in a confidential
manner aimed at protecting civil society representatives from intimidation
and reprisals. In the course of my preparation of this report, civil society
representatives have maintained that a transparency register would
be dangerous and I think that they are right.
76. Second, it is not clear that a transparency register would
be proportionate, as a financial and administrative burden on the
Assembly and its members. The European Parliament has an annual
budget of over €2 billion with a total secretariat of 7 225.
Note As a result, it can
devote ten full-time staff to a transparency register. Meanwhile,
the Assembly only has a budget of €20 million and a staff of around
90. Even if a transparency register for the Assembly would be smaller
than the one for the European Parliament, it is difficult to see
how such a significant administrative burden can be placed on the
Assembly in view of its modest budget and human resources. It should
be noted that the other “part-time” international parliamentary
bodies based in Europe, the OSCE Parliamentary Assembly and the
NATO Parliamentary Assembly, do not have a transparency register.
The proposal was already rejected by the Committee on Rules of Procedure,
Immunities and Institutional Affairs in 2019 and I do not propose
that the committee considers it again.
7.4 Measures
to review and reinforce civil society engagement with the Assembly
77. A wide range of suggestions
have been put forward on this issue, by the Secretary General of
the Council of Europe, the Conference of INGOs, respondents to an
online survey, and the NGO network CURE (as set out in section 6).
In the draft resolution I have included those which are likely to
be most effective, whilst also being proportionate in view of the
Assembly’s resources. The Committee on Rules of Procedure, Immunities
and Institutional Affairs would need to first examine any development
that would require a change to the Assembly’s Rules of Procedure.
7.5 Proposed
difference between commercial and non-commercial entities
78. During discussions in the Committee
on Legal Affairs and Human Rights, there were exchanges regarding
whether transparency regulations should be different for commercial
and non-commercial entities. There is no such distinction in the
Council of Europe’s standards on interest representation, including Recommendation
CM/Rec(2017)2 on the legal regulation of lobbying activities in
the context of public decision making. Such a distinction would
be difficult to make effective in practice and I do not propose
it.
8 Conclusion
79. The present report takes place
against a wider background of review by the Assembly of the standards governing
how members engage with third parties. In particular, Mr Frank Schwabe
(Germany, SOC) is in the process of preparing a report entitled
“Respect for the rule of law and fight against corruption within
the Council of Europe”, which is due for adoption by the Committee
on Rules of Procedure, Immunities and Institutional Affairs before
the end of this year.
Note
80. The Assembly has also initiated a project entitled “Strengthening
Ethics and Integrity in Parliaments”, which aims to enhance the
fight against corruption by reinforcing ethics and integrity within
parliamentary systems. Project activities will include capacity
building workshops for parliamentarians and staff on anti-corruption
measures, the drafting of a unified code of conduct for parliamentarians,
the development of whistleblower protection mechanisms, opportunities
for exchange between parliamentarians, and public awareness measures
relating to the fight against corruption.
81. There is an ongoing reflection by the Assembly and the Council
of Europe as a whole about how to ensure strong ethical practices
when dealing with external actors – and also about how to promote
greater engagement with civil society. My view is that these issues
must be examined together. The Assembly can promote greater engagement
with external interlocutors, whilst simultaneously increasing the
transparency of that engagement. Reforms to address these issues
should be carried out concurrently, as they are interlinked. This
would help promote pluralism, whilst also ensuring the protection
of integrity and accountability. I hope that this report will make
a useful contribution to future discussions in this area.
