B Explanatory memorandum
by Ms Ingjerd Schou, rapporteur
1 Origin
and scope of this report
1. In 2019 and 2020, the Committee
on Rules of Procedure, Immunities and Institutional Affairs was
called upon by the Bureau of the Parliamentary Assembly to examine
a number of questions relating to procedures which had caused problems
and which might justify a modification of the Assembly’s Rules of
Procedure.
2. At its meeting on 28 June 2019, the Bureau of the Assembly
invited the Committee on Rules of Procedure “to reflect upon certain
procedural problems identified during the third part-session” relating
to the simultaneous challenge of the credentials of a national delegation
on both procedural and substantive grounds, on the one hand, and
the timetable for tabling amendments, on the other.
3. Furthermore, in two successive resolutions –
Resolution 2261 (2019) on “The progress of the Assembly's monitoring procedure
(January-December 2018)” and
Resolution
2325 (2020) on “The progress of the Assembly's monitoring procedure
(January-December 2019)” – the Assembly decided to modify its procedures
for monitoring the obligations and commitments entered into by member
States upon accession to the Council of Europe, in particular with
a view to strengthening the periodic review procedure as a complementary
mechanism to the monitoring procedure and the post-monitoring dialogue.
4. On 23 May 2019, the Bureau requested an opinion of the Committee
on Rules of Procedure on the individual periodic review procedure
that had been set up, while asking the committee “to also examine
the decision-making processes developed by committees and assess
their conformity with the Rules of Procedures of the Assembly”.
On 5 March 2020, the Bureau took note of the committee’s opinion
on the assessment of the conformity of the decision-making processes
developed by committees with the Assembly's Rules of Procedure,
and seized the committee for report (see below Chapter 2).
5. Finally, following a well-established practice, this report
intends to include other proposals for amendments to the Rules of
Procedure relating to procedures needing to be adapted to parliamentary
practice or rules requiring clarification. In addition to the two
points mentioned in paragraph 2 above – the concomitance of two
procedures for challenging the credentials of the same national
delegation; the procedure for examining amendments in committee
and in plenary – the following procedures have recently caused problems:
- the election of the Vice-Presidents
of the Assembly: the implementation of this procedure, which was unused
for a very long time, during the October 2019 and January 2020 part-sessions
has shown that it is no longer appropriate (the procedure for electing
the President of the Assembly is also the subject of the same remark);
- the criteria applicable to the re-election of committee
vice-chairpersons led to misunderstandings in some committees which
had difficulty in finding candidates who met the regulatory requirements;
- the flow of events of recent months have mobilised members'
attention and they wished to stimulate Standing Committee meetings
with requests for current affairs debates; in this context, the
one debate per Assembly part-session or Standing Committee meeting
limit imposed by the Rules of Procedure appeared to be a brake on
their willingness to discuss a greater number of subjects.
These proposals for amendment to the Rules of Procedure will
be examined in Chapter 3 below.
2 Implementation of Resolution 2261 (2019)
and Resolution 2325 (2020) on the progress of the Assembly's monitoring
procedure
6. Resolution 2261 (2019) and
Resolution
2325 (2020) made some minor changes to the terms of reference of
the Committee on the Honouring of Obligations and Commitments by
Member States of the Council of Europe (Monitoring Committee) in
order to reflect its conclusions of the reflection on its various procedures.
A major provision of these two resolutions concerns the procedure
for the periodic review of the fulfilment by member States of their
obligations for which the selection of countries on which reports
are to be prepared, which was before carried out in alphabetical
order and without the appointment of rapporteurs, has been replaced
by a selection on substantive grounds, depending on the developments
regarding these countries. The said selection relies entirely on
the free choice of the Monitoring Committee.
7. The Committee on Rules of Procedure was led to consider the
procedures implemented by the Monitoring Committee, particularly
following the change in the format and the manner of preparing the
periodic review reports of the compliance of the obligations entered
into upon their accession to the Council of Europe by member States
that are not subject to a full monitoring procedure or engaged in
a post-monitoring dialogue with the Assembly (
Resolution 2261 (2019) on the progress of the Assembly's monitoring procedure).
8. In the opinion it approved on 29 January 2020 for the Bureau
of the Assembly,
Note the Committee
on Rules of Procedure noted that the procedures implemented by the
Monitoring Committee to ensure compliance with the obligations entered
into by all member States under its terms of reference (
Resolution 1115 (1997) modified) through four existing procedures – the monitoring
procedure
stricto sensu; the
post-monitoring dialogue; the reports on the functioning of democratic
institutions in member States; and the periodic reviews of member
States – fall outside the generally applicable regulatory provisions
in many respects. Whereas a decision to open or reopen a monitoring
procedure or a reference to the Monitoring Committee for report
on the functioning of democratic institutions requires the approval
of the Bureau and ratification by the Assembly, the committee's
terms of reference make no such stipulation in the case of periodic
review reports. The Monitoring Committee hence has a higher degree
of autonomy when it comes to initiating a periodic review, than
in the case of opening a monitoring procedure or a post-monitoring
dialogue, or preparing a report on the functioning of democratic
institutions in member States.
9. The Committee on Rules of Procedure noted, however, that the
decision-making process of the committees generally involves intervention
by the Assembly upstream (referring motions for resolutions or recommendations
to committees or by an Assembly direct decision –
Rules
26.3 and
45.1) and downstream (examining the reports submitted by
the committees and adopting resolutions, recommendations or opinions
–
Rules
33.4 and
50.2).
Rule
45.1 of the Rules of Procedure is quite clear (“
Committees shall examine documents referred
to them under Rule 26 and questions otherwise referred to them by
the Assembly or the Standing Committee. (…)»). While
some committees may have a degree of autonomy in the framework of certain
specific procedures laid down in the Rules of Procedure,
NoteNoteNoteNote the
fact remains that the preparation of their reports must fully comply
with the regulatory stipulations and these reports are necessarily
ultimately subject to the decision of the Assembly.
10. The Committee on Rules of Procedure therefore considered that
care should be taken to unify the four existing procedures and that
the
terms of reference of the Monitoring Committee should be modified to make it clear that any decision
of the Monitoring Committee must at least be subject to ratification
by the Assembly.
11. Furthermore, the Committee on Rules of Procedure noted that
the opening or the reopening of a monitoring procedure in the strictest
sense in respect of one of the 47 member States is subject to strict
criteria and a full and complex procedure detailed in the
committee’s
terms of reference (paragraphs 3 to 6), which ultimately makes it difficult
to actually implement. By contrast, the periodic review procedure,
which meets simple criteria defined by the committee’s “internal
working methods” also makes it possible to monitor “the honouring
of membership obligations” by these member States without having
to satisfy these kinds of procedural constraint. With the adoption
of
Resolution 2325 (2020), the Monitoring Committee can now proceed in the same
way, when dealing with “periodic reviews”, as it does with monitoring
procedures in the strictest sense (appointing co-rapporteurs, organising
fact-finding visits, comments by the authorities of the country
concerned, etc.), if its “internal working methods” were to decide
that this should be so
. We
hence risk to see a development where the periodic review procedure
may replace the strict monitoring procedure, instead of being a
less comprehensive procedure that offers an alternative to the monitoring
procedure.
12. In its above-mentioned opinion, the Committee on Rules of
Procedure regarded the choice, made solely by the Monitoring Committee,
to open a periodic review procedure in respect of a member State,
whereas opening a monitoring procedure covering the same State would
have required the confirmation or ratification of this choice by
the Bureau and the Assembly, as a violation of the equal treatment
of member States and a potential abuse of procedure, particularly
as such decisions clearly fall within the sphere of the Assembly’s political
action.
13. For this reason the Committee on Rules of Procedure considered
that the same procedural formalities shall apply in an identical
manner to all procedures covered by the terms of reference of the
Monitoring Committee and that a reference to the committee should
be validated by the Assembly when it prepares a periodic review
report, under the same terms as would apply if it were referred
to for a report in the context of a “classic” monitoring procedure
or a report on the functioning of democratic institutions in a member
State.
14. Consequently, the Committee on Rules of Procedure considered
that all procedures for which the Monitoring Committee is responsible
required a decision of confirmation, referral or ratification by
the Bureau or the Assembly, at one stage or another. The relevant
provisions of the terms of reference of the Monitoring Committee
established by
Resolution
1115 (1997) should be harmonised: thus, any decision by the Monitoring Committee
to open a periodic review procedure in respect of certain member
States (paragraph 8) should require the approval of the Bureau in
accordance with
Rule
26 of the Rules of Procedure and ratification by the Assembly.
15. The same applies to the procedure of “issue-based, cross-country
monitoring”, since
paragraph
9 of the committee's terms of reference does not mention
that the Monitoring Committee must be formally seized prior to the
preparation of any report. However, it should be noted that, since
its creation in 1997, the Monitoring Committee has never conducted
any thematic monitoring. The relevance of this provision may therefore
be questioned in light of the terms of reference of the other Assembly
committees which are competent in the fields likely to be covered
by this procedure and which have indeed actively followed up these
areas in their reports.
Note Paragraph
9 could therefore be amended to stipulate that the Bureau of the
Assembly may instruct the Monitoring Committee to prepare a report
on a cross-country thematic issue, in accordance with Rule 26 of
the Rules of Procedure.
16. Finally, it appears that certain paragraphs of the texts applicable
to the Monitoring Committee are repetitive and that the wording
of the committee's terms of reference and procedure should be clarified,
by deleting paragraphs 10 and 13.1 of
Resolution 1115 (1997) (modified): the provisions of paragraph 10 appear in
paragraph 5 of the
terms
of reference of the committee, and those of paragraph 13.1 were incorporated
in the new paragraph 9 adopted in January 2020.
3 Various
changes required by parliamentary practice
3.1 Overlapping
procedures for challenging the credentials of the same national
delegation on different grounds
17. At the June 2019 part-session,
during the opening sitting, the still unratified credentials of
the national delegation of the Russian Federation were challenged
both on procedural grounds, in accordance with
Rule 7.1.a of the Rules of Procedure, and referred to the Committee
on Rules of Procedure for report, and on substantive grounds, in
accordance with
Rule
8.2, and referred to the Monitoring Committee for report.
While, on the basis of the report presented by the Monitoring Committee,
the Assembly concluded that the credentials of the Russian delegation
should be ratified, the Committee on Rules of Procedure had not
been able to adopt a report. This item had therefore been removed
from the Assembly's agenda, so that the credentials of the Russian
delegation remained challenged on procedural grounds (however, the
Russian members had seated provisionally in the Assembly with the
same rights as the other Assembly members, in accordance with
Rule 10.3 of the Rules of Procedure). In theory, the Committee
on Rules of Procedure, still seized of the matter, could have presented
a new report at a later stage, which it did not do. The procedure
for challenging the credentials of the Russian delegation on procedural
grounds had therefore remained pending until the opening of the
2020 session (and the presentation of the new credentials of the
Russian delegation).
18. On 28 June 2019, the Bureau of the Assembly therefore asked
the committee to consider the problem of simultaneous challenges
to the credentials of a national delegation on both procedural and
substantive grounds. Should the Rules limit the number of challenges
which may be raised against the same delegation, so that a single
challenge may be made at the same time on the basis of either
Rule 7, or
Rule 8 or
9?
19. The rapporteur considers that, faced with a unique case in
the history of the Assembly, which found a pragmatic solution, it
would be premature to envisage a change to the Rules of Procedure.
The two procedures cannot be mutually exclusive as they are clearly
based on entirely different grounds: fair representation of political
parties and gender representation, on the one hand; serious violation
of the basic principles of the Council of Europe or persistent failure
to honour obligations and commitments and lack of co-operation in
the Assembly's monitoring procedure, on the other hand. Who could
predict that a delegation which, for example, did not include any
women representative or representatives of the political opposition,
while lacking co-operation in the Assembly's monitoring procedure,
would not fully justify a double challenge to its credentials? Moreover,
if the Rules were to prohibit a delegation from being challenged
more than once, then members could strategically present a simple
challenge on procedural – perhaps even unjustified – grounds to
block a much more serious challenge alleging, for example, gross
violations of human rights. Finally, in concrete terms, in the event
of a double challenge to the credentials of the same delegation,
who would be responsible for deciding to reject one of the two challenges
and on what basis?
3.2 Procedure
for examining amendments in committee and in plenary sitting
20. At the June 2019 part-session,
the Assembly had had to reorganise its work due to a considerable number
of amendments which had had to be examined both at committee and
plenary level.
Note Although, once again, this was
a unique event in the Assembly's annals, it is reasonable to believe
that the massive tabling of amendments for filibustering purposes
is a strategy that is likely to be repeated in the future. Moreover,
in general, and outside any exceptional debate on a controversial
report, it is not unusual for members of the Assembly to express
concern about the fact that speakers are deprived of the floor during
a debate because of the large number of amendments tabled, forcing
the list of speakers to be “cut off”.
21. The Committee on Rules of Procedure could therefore consider
changing the procedure for the examination of amendments, along
the lines, for example, of the procedure established in the European Parliament
for filtering amendments tabled by committees.
Note At present, the committee responsible
for a report presented to the Assembly takes a position on all the
amendments tabled and the Assembly takes a final decision on them,
with the exception of those which have been unanimously approved
by the committee and are considered as finally adopted. It might
therefore be advisable to strengthen the committees' decision-making
powers when examining amendments tabled to their texts.
22. Rule
34 of the Assembly's Rules of Procedure could therefore
provide that amendments rejected by the committee seized for report
by a two-thirds majority shall not be taken up in plenary: “
Any amendment which has been rejected by the
committee seized for report by a two-thirds majority of the votes
cast shall not be put to the vote in plenary and shall be declared
as definitively rejected, unless ten or more members of the Assembly
object”.
23. On the other hand, it does not seem appropriate to change
the deadlines for tabling amendments laid down in
Rule
34.6 of the Rules of Procedure, given the difficulty of organising
the timetable of committee meetings during part-sessions and the
constraints on the organisation of plenary sittings.
24. The committee could also reflect on the idea of including
in the Rules of Procedure the possibility of putting several amendments
to the vote collectively (“en bloc”),
provided that they are identical or have similar content and are
repetitive or complementary, even if they relate to different parts
of the text or have been tabled by different authors. Such a proposal
is intended to ensure that the adopted text is fully consistent.
There are indeed examples where, very occasionally it is true, such
a procedure could have been useful in order to avoid that, in the
same resolution, amendments relating to exactly the same subject
matter or wording are adopted, in one case, and then rejected a
little later. However, it is understandable that such an approach
may be disruptive to members of the Assembly accustomed to following
the debate on amendments in a well-established order and who may
find it difficult to keep track of the various amendments they are
voting for. The rapporteur has therefore concluded with not including
this as a proposal in the draft resolution.
3.3 Election
of the President and Vice-Presidents of the Assembly
25. In light of the ballots held
during the October 2019 and January 2020 part-sessions, the procedure
laid down in
Rule
16 for the election of the Vice-Presidents – but also in
Rule
15 for the President of the Assembly – appeared archaic
and unnecessarily cumbersome, particularly in view of the Assembly's
practice for the election of judges to the European Court of Human
Rights and of highest officials of the Council of Europe which is
less cumbersome. In the case of the President and Vice-Presidents,
the existing rules require an absolute majority of the representatives
of the Assembly, also in the event of a second round (namely 162
votes if all the seats in the Assembly are filled), while for the
election of judges to the European Court of Human Rights and of
highest officials of the Council of Europe, only an absolute majority
of the votes cast is required in the first ballot and a relative
majority in the second round.
26. When there are more than one candidate for the election of
President of the Assembly, the Assembly shall be obliged to proceed
to an election by secret ballot. When there is only one candidate,
the President of the Assembly shall be declared elected without
conducting a ballot.
Rule
15.2. of the Rules of Procedure stipulates that “
Two tellers chosen by lot shall count the votes
cast, assisted by the Secretariat. If, after two ballots, no candidate
has obtained an absolute majority of the representatives of the
Assembly, the candidate who on the third ballot receives the greatest
number of votes shall be declared elected. In the event of a tie, the
older candidate shall be declared elected.”
27. In the case of Vice-Presidents, the Assembly may proceed to
an election by secret ballot for one or more candidates if at least
twenty members so request (
Rule
16.4).
Rule
16.5 provides that “
Two tellers
chosen by lot shall count the votes cast, assisted by the Secretariat.
Those candidates who on the first ballot obtain an absolute majority
of the representatives of the Assembly shall be declared elected.
If the number of those elected is less than the number of vacancies
to be filled, a second ballot for the candidates not elected shall be
held. Those candidates who then receive an absolute majority of
the votes cast, with more than half the number of representatives
having voted, shall be declared elected. Where a candidate is not
elected after the second ballot, that seat shall remain vacant until
a candidate presented by the national delegation in accordance with
paragraph 3 above obtains the requisite majority.”
28. Different from the election of the President and Vice Presidents,
the election of the judges to the European Court of Human Rights
and of highest officials of the Council of Europe – Secretary General,
Deputy Secretary General, Secretary General of the Assembly and
Commissioner for Human Rights – only requires a relative majority
whenever there is a second ballot (see
Rule
41.b of the Rules of Procedure), and hence is more elementary.
This may seem paradoxical. It is therefore proposed to simplify
the procedures for the election of the President and Vice-Presidents
of the Assembly so that they follow the common procedure provided
for in
Rule 41.b.
3.4 Election
of bureaux of committees
29. Rule
46 of the Rules of Procedure on the bureaux of committees
has been amended several times in recent years,
Note first
by tightening the conditions for standing for election as committee
chairperson or vice-chairperson and then by relaxing those conditions.
In particular,
Rule
46.7 provides for a period during which a former chairperson
may not stand for re-election to the same office. However, while
former committee chairpersons are permitted to stand for election
as chairperson or vice-chairperson subject to a four-year waiting
period for the same committee or after the expiry of a two-year
period to stand for election to another committee, these conditions
do not apply to outgoing vice-chairpersons. In practice, a vice-chairperson
of a committee who has served two one-year terms of office is never
again eligible for such office in the same committee (he or she
may, of course, be a candidate for chairperson of a committee or
vice-chairperson of another committee).
30. This measure was introduced in 2014 in order to foster better
rotation of posts of responsibility among Assembly members. At present,
it lacks legibility and its application generates misunderstandings
every year. The Committee on Rules of Procedure could therefore
consider amending
Rule
46.7 of the Rules of Procedure in order to give outgoing
committee vice-chairpersons the same waiting periods as outgoing
committee chairpersons.
3.5 Current
affairs debate
31. Rules
53.1 and 53.6 stipulate that the Assembly or the Standing Committee
may hold only one current affairs debate in the course of an Assembly
part-session or a Standing Committee meeting. Mr Ian Liddell-Grainger
(United-Kingdom, EC/DA), also expressing the position of some of
his colleagues in the Assembly, proposed that this limit should
be lifted and that the Rules of Procedure should be amended to allow
the Assembly or the Standing Committee to hold more than one current
affairs debate.
32. In view of the Assembly's evolving practice of being more
responsive to national and international political developments
and wishing to make its position known rapidly, it would be useful
to allow the Assembly and the Standing Committee to hold more than
one current affairs debate, while limiting the time available for such
debates so as not to overrun the agenda for the consideration of
reports presented by committees. The limitation could therefore
be extended to a maximum of two debates.
3.6 Free
debate in the Standing Committee
33. Similarly, only the Assembly
may hold a free debate (
Rule
39). The question has also been raised by Mr Liddell-Grainger
as to whether members of the Standing Committee should be allowed
to speak on the subject of their choice in a free debate. This issue
has so far never been raised and discussed in the Committee on Rules
of Procedure, and it is therefore difficult at this stage to decide
on that proposal without any more precise arguments on the expected
benefit of such measure. If the Committee on Rules of Procedure
were to retain this proposal, then it would be appropriate to limit
the duration of the exercise in the Standing Committee, again in
view of the tight agenda of its meetings (for example 30 minutes,
not one hour as foreseen during Assembly part-sessions).
4 Conclusion
and proposals
34. The Parliamentary Assembly
should consider some proposals for amendments to the Rules of Procedure
and, as recommended by the rapporteur, decide:
- in order to implement Resolution 2261 (2019) and Resolution
2325 (2020) on the progress of the Assembly's monitoring procedure,
to modify some paragraphs of the terms
of reference of the Monitoring Committee and Resolution 1115 (1997) (modified);
- to modify Rule
34 of the Rules of Procedure on the procedure for examining
amendments in committee and in plenary sitting, in order to strengthen
the competence of committees when taking a position on amendments
tabled;
- to amend Rules
15, 16 and 41.b in order to simplify the procedures for the election
of the President and Vice-Presidents of the Assembly so that they
now follow the Assembly's ordinary election procedure;
- to amend Rule
46.7 in order to unify and clarify the conditions relating
to candidatures for the office of chairperson or vice-chairperson
of committees with regard to members who have already held such offices;
- to amend Rule
53 on current affairs debate to allow two debates to be
held during a part-session or Standing Committee meeting.
35. However, the rapporteur does not wish to include in the draft
resolution at this stage the proposal of having a free debate in
the Standing Committee meetings (paragraph 33) or introducing the
possibility for the Assembly to vote amendments “en bloc” under
certain conditions (paragraph 24).
36. Finally, with regard to the implementation of the regulatory
changes to be made, the draft resolution proposes that the amendments
to the Rules of Procedure should enter into force upon their adoption.
