B Explanatory memorandum
by Ms Thorhildur Sunna Ævarsdóttir, rapporteur
1 Introduction
1. In recent years, the Council
of Europe has been a leader in the area of standard-setting to prevent
and combat violence against women in all its forms and domains.
In order to respond to the need for combating and preventing sexism,
harassment, sexual violence and misconduct, numerous legal instruments
have been adopted.
Note In
2018, the Parliamentary Assembly launched the #NotInMyParliament
initiative to raise awareness about the alarming level of sexist
behaviour, harassment and gender-based violence found in national parliaments.
Note
2. Assembly
Resolution
2290 (2019) “Towards an ambitious Council of Europe agenda for gender
equality” noted that the Assembly has adopted a firm political stance
against all forms of violence against women through its resolutions
and recommendations calling for legally binding standards on preventing,
protecting against and prosecuting the most severe and widespread
forms of gender-based violence, ultimately leading to the preparation
of the ground-breaking Convention on Preventing and Combating Violence
against Women and Domestic Violence (CETS No. 210, “Istanbul Convention”).
The Parliamentary Network Women Free from Violence has supported
the implementation of the convention by raising the awareness of
legislators, policy makers and the public of the scourge of gender-based
violence and by providing practical solutions and guidance on how
to address it.
3. Assembly
Resolution
2274 (2019) “Promoting parliaments free of sexism and sexual harassment”
called for the strengthening of policies, legislation and other
measures aimed at putting an end to sexism, harassment, sexual violence
and misconduct in all aspects of life, including in politics. It
further stressed the need to step up data collection, monitoring
and research in this area at both national and international levels.
4. By adopting
Resolution
2274 (2019), the Assembly demonstrated its clear intention to set
standards in order to prevent and combat any form of sexism, harassment,
sexual violence and misconduct not only for member States but also
for its own work and functioning. It therefore called on the Committee
on Rules of Procedure, Immunities and Institutional Affairs:
“to modify the Code of Conduct
for members of the Assembly with a view to:
13.2.1. introducing the explicit prohibition of sexism,
sexual harassment and sexual violence and misconduct, as well as
the obligation to take account of the Council of Europe rules on
the protection of dignity and to co-operate with the relevant mechanisms
and take account of the decisions that might be taken as a result
of a harassment procedure;
13.2.2. ensuring that the recommendations of the Commission
against Harassment and/or decisions of the Secretary General of
the Council of Europe resulting from the application of Rule No.
1292 can be followed up by the Assembly in the context of its Code
of conduct”.
5. On 25 November 2019, on the
occasion of the International Day for the Elimination of Violence
against Women, the Inter-Parliamentary Union (IPU) published a comprehensive
set of guidelines to combat sexual harassment and violence against
women in parliament. These guidelines provide a comprehensive review
of the issue, propose reliable solutions, and have been a valuable
source for the preparation of this report.
Note
6. The Committee on Rules of Procedure, Immunities and Institutional
Affairs was, therefore, invited to analyse the current trends concerning
the mechanisms on preventing and combating sexism, harassment, sexual
violence and misconduct and to assess the existing regulatory framework
of the Assembly as well as what appropriate commitments, sanctions
and remedial systems should be introduced.
2 Current regulatory framework on ethics
2.1 Mechanism
under the Code of Conduct for members of the Parliamentary Assembly
7. In 2012, the Assembly adopted
the Code of Conduct for members of the Parliamentary Assembly, which outlines
general principles of behaviour as well as specific rules of conduct
that the Assembly expects of its members. The current Code of Conduct
does not explicitly prohibit sexism, sexual harassment, sexual violence and
misconduct, but it sets a general obligation on the members to “respect
the values of the Council of Europe and the general principles of
behaviour of the Assembly and not take any action which would cause
damage to the reputation and integrity of the Assembly or its members”
(paragraph 7).
8. Paragraphs 18 to 27 of the Code of Conduct establish the Assembly
oversight and sanction mechanism. The implementation of the Code
of Conduct is the responsibility of the President of the Assembly
and the Committee on Rules of Procedure, Immunities and Institutional
Affairs. The President of the Assembly may rule on minor breaches
if the matter is not already referred to the Committee on Rules
of Procedure. The Committee on Rules of Procedure shall examine
alleged breaches of the Code of Conduct brought to its attention
by the President of the Assembly or by at least 20 members of the
Assembly representing at least five national delegations. The committee
may also start an investigation of its own motion. Consequently,
the President of the Assembly and the Committee on Rules of Procedure
have the competence to open an investigation following a complaint.
9. The Committee on Rules of Procedure has investigative powers
when considering alleged violations of the Code of conduct. Any
implicated Assembly member enjoys procedural safeguards. The committee
meets in camera and shall act with due respect for confidentiality.
It has decision-making power in determining the existence of a minor
breach of the Code of Conduct or of serious or repeated breaches
of the Code which would lead to the imposition of sanctions (paragraph
27).
10. Current procedure within the Assembly does not provide an
appeal against decisions on breaches of the Code.
11. Other complementary texts are considered to be included in
the overall Assembly Code of conduct: the Code of Conduct for rapporteurs
of the Parliamentary Assembly; the related provisions contained
in the Guidelines on the observation of elections by the Parliamentary
Assembly; the provisions related to the Conduct of members during
Assembly debates (Rule 22 of the Rules of Procedure), and the Special
rules on the title and prerogatives of Honorary President of the
Parliamentary Assembly and on honorary association with the Parliamentary
Assembly. Paragraph 13.3 of
Resolution
2274 (2019) also asks “the Bureau of the Assembly to ensure that,
in the context of election observation by the Assembly, the issue
of violence against women, and notably sexism and sexual harassment,
is systematically taken into account and is included in future revisions
of the Guidelines for the observation of elections by the Parliamentary
Assembly”.
2.2 Council
of Europe mechanism on preventing and combating sexism, harassment,
sexual violence and misconduct within the Organisation
12. On several occasions, the Council
of Europe has declared that gender equality is central to the protection
of human rights, the functioning of democracy, and good governance.
Any form of discrimination on the grounds of sex/gender constitutes
a violation of human rights. The Council of Europe has consistently
taken a robust and proactive stance on advancing mechanisms designed
to prevent and combat harassment, sexism, sexual violence and misconduct.
13. In 2010, the Secretary General of the Council of Europe issued
Rule No. 1292 on the protection of human dignity at the Council
of Europe which established a special mechanism, the Commission
against Harassment, to ensure the protection of human dignity within
the Organisation.
Note Rule No. 1292 introduces definitions
of sexual and psychological harassment
NoteNoteNote and sets
up non-contentious and contentious procedures. The Commission against
Harassment which regulates the contentious procedure renders its
opinions in complete independence.
Note
14. All parties involved in the non-contentious or contentious
procedures are required to respect strict confidentiality. Individuals
who consider themselves to be a victim of harassment may submit
a written complaint to the Commission where efforts to find a solution
under the non-contentious procedure have failed, or where he/she
deems recourse to this procedure to be inappropriate in view of
the seriousness of the facts or the stage which the harassment has
reached. Individuals who consider themselves to be a victim of sexual or
psychological harassment may seek the assistance and advice of a
Confidential Counsellor.
15. The Commission against Harassment has investigative powers
similar to those applicable to internal inquiries. Its work involves
fact-finding and analysis: it studies the documents submitted by
the parties and conducts hearings of the parties and witnesses;
it may compare the information it receives from these different sources
and asks the parties to submit their comments on it under the adversarial
principle. At any stage of the proceedings, the Commission against
Harassment can propose to the parties that they attempt to settle
the matter by friendly settlement (Article 10, paragraph 6 of Rule
No. 1292).
16. However, as n
oted
in Resolution 2274 (2019), the Assembly was informed about the planned
revision of Rule No. 1292 on the protection of dignity at the Council
of Europe with a view to enhancing its effectiveness. Paragraph
70 of the relevant report underlined that in the context of the
ongoing revision of the Rule, consistency should be ensured with
the Code of Conduct for members of the Assembly.
17. In 2021, the Committee of Ministers of the Council of Europe
published Explanatory highlights on Implementation of the People
Strategy Reform of the Staff Regulations with an overview of the
main substantive changes covered by the reform.
Note
18. The current reform in the Council of Europe will cover among
other issues the adoption of the new Code of Conduct, Policy on
Dignity and Respect, Speak-Up Policy and Policy on Diversity. It
is believed that the reform will include appropriate practices and
safeguards in the area of fighting against all forms of harassment. The
Assembly stands ready to assess the applicable procedures of the
Council of Europe with a view to suggesting their improvement, if
appropriate.
3 Completing
the Assembly’s ethics regulations and developing its complaint mechanism
3.1 General
principles
19. A
ssembly Resolution 2274 (2019) does not make a precise proposal on the mechanism
which should be put in place for preventing and combating sexism,
sexual harassment, sexual violence and misconduct. The IPU guidelines
have shown that national parliaments or international institutions
do not have a unique procedure for dealing with the above issues.
National parliaments may have diverse authorities in this area; there
may be several levels of jurisdiction as well as various scales
of sanctions. Accordingly, the Assembly has a wide margin of discretion
in choosing the model for protection against harassment and sexual misconduct.
20. The Assembly mechanism for dealing with sexism, harassment,
sexual violence and misconduct should allow impartial examination
of alleged breaches of ethical rules and principles and be compatible
with the requirements of a fair trial. The IPU guidelines provide
for several essential principles on which this mechanism should
be based: (1) confidentiality; (2) responsiveness to the complainants;
(3) fairness to all parties; (4) thorough, impartial and comprehensive
investigation; and (5) timely adjudication.
21. It further emerges from the IPU’s guidelines that the investigation
of the above-mentioned issues cannot be entrusted to the people
who are both judges and parties and that such an inquiry should
be conducted by an external person or independent body qualified
in the subject area. Independent and confidential procedures appear
to be the most appropriate strategy.
22. When it reflected upon a revision of the Assembly Code of
Conduct in 2017, the Committee on Rules of Procedure considered
introducing an outside mechanism, underpinned by the expertise of
an independent and impartial body. Although MPs “are familiar with
the professional environment” and they are able to “appreciate the
reasonable degree of diligence that can be expected of an MP in
a given context”, there is a risk that MPs exercising power over
their peers may be judges and parties on account of their political
affiliations, so that such a parliamentary collegiate body cannot
be considered independent and impartial.
Note
23. A motion for a resolution entitled “Respect for the rule of
law and fight against corruption within the Council of Europe”
Note referred to the Committee on Rules
of Procedure considers “the establishment within the Organisation
of a special joint anti-corruption unit that would allow for timely
and efficient investigations in cases of serious allegations of
corruption in all parts of the Organisation in future”. The reflection
conducted by the committee in 2017 could be taken into account when
elaborating the report for which Mr Franck Schwabe (Germany, SOC)
is the rapporteur. The envisaged special unit could have a comparable
procedure, safeguards and mechanisms as described here. However,
given the particularly sensitive nature of the offences addressed in
this report, additional safeguards and specialised procedures would
be required for a separate unit on combating sexual harassment,
sexism and sexual violence and misconduct. Should such a unit be
established it should provide support and protection for victims
as well as counselling and reform for perpetrators.
24. The following criteria should be considered in assessing the
procedures dealing with any form of harassment, sexism and sexual
violence and misconduct: the applicable substantive and procedural
provisions and the clarity thereof; the structure, composition,
competence, and functioning of the bodies treating relevant cases;
the nature of sanctions and remedies. The current Assembly Code
of Conduct suggests an enforcement mechanism that is based on three
components: prevention, investigation, imposing sanctions (and providing remedies).
Accordingly, any modification proposed to the Code of Conduct should
be assessed in light of these general criteria and components.
25. Special status and guarantees of the members of the Assembly,
but also of the staff of the Organisation, should be taken into
consideration when modifying the Code of conduct. As stated in the
report by Mr Volker Ullrich (Germany, EPP/CD) on “Jurisdictional
immunity of international organisations and rights of their staff”,
Note the Council of Europe
enjoys jurisdictional immunity, which is a “functional” immunity
and one which can be waived only in exceptional circumstances. In
accordance with the established case law of the European Court of
Human Rights in cases concerning employment disputes opposing staff
to international organisations, waiving this immunity can be an
option only if there are no other “reasonable alternative means”
of protecting the rights of those concerned.
26. Parliamentary immunity and freedom of speech are issues that
will inevitably arise in cases covered by this report. In this context
the Court has stated that “tolerance and respect for the equal dignity
of all human beings constitute the foundations of a democratic,
pluralistic society. That being so, as a matter of principle it may
be considered necessary in certain democratic societies to sanction
or even prevent all forms of expression which spread, incite, promote
or justify hatred based on intolerance, provided that any ‘formalities’, ‘conditions’,
‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate
aim pursued.”
Note Furthermore,
the scope of parliamentary non-liability, with regard to the content
of a statement, has been restricted so as not to cover hate speech
and racist remarks, threats or incitement to violence or crime. Moreover,
the Court has found that politicians should avoid making comments
likely to foster intolerance or hate.
Note. In reflecting on a mechanism for
dealing with sexism, harassment, sexual violence and misconduct, the
Assembly would also be confronted with the need to strike the right
balance between freedom of speech which – having particular regard
to the fact that the Assembly is a place for robust debates – is
essential for the members’ political activity, on the one hand,
and the necessity to respect the Code of Conduct, on the other hand,
including the protection of human dignity, which may be affected
by members’ deeds and words. In this regard, the Assembly expects
members to take action in their daily activities to strengthen their
non-discriminatory language.
27. For a number of reasons, guidance is a significant element
of any code of conduct. Considering that the Assembly represents
diverse countries, with divergent political cultures and different
languages, members should have the opportunity to clarify issues
to avoid illicit actions resulting from misinterpretation. Furthermore, no
code can be truly exhaustive and, therefore, responsible individuals
should be provided with guidance on matters not specifically or
directly covered by the code.
3.2 Existing
mechanisms in other international organisations and national parliamentsNote
European Parliament
28. In 2014, the European Parliament
established an Advisory Committee dealing with harassment complaints
between Accredited Parliamentary Assistants and Members of the European
Parliament (MEP) and its prevention at the workplace.
Note
- Competence:
The Advisory Committee has a purely advisory in-house role in preparing
the decision of the President of the European Parliament as to whether
harassment has occurred. The mechanism has been established for
handling complaints of psychological and/or sexual harassment filed
against a MEP by a member of staff, a parliamentary assistant or
an intern.
- Composition: The Advisory Committee comprises five members
nominated by the President. The chairperson of the committee and
two other members shall be nominated among the Quaestors. At least one
of the members shall have expertise in equal opportunities and both
genders shall be represented in the committee. Two observers shall
be appointed by the Medical Service and by the Legal Service, respectively.
- Procedure: The committee works with complete autonomy,
independence, and confidentiality. Its deliberations are secret.
If there is sufficient evidence, it conducts an investigation during
which hearings are held with the complainant, witnesses and the
accused. Once the procedure has been completed, the committee sends
its reasoned opinion to the President of the European Parliament
in a confidential report. In cases where the president has concluded
that harassment has indeed been committed, the victim can obtain
coverage from the parliament of their legal fees if they decide
to initiate judicial proceedings against the MEP concerned. In addition,
if an assistant can no longer work with their deputy because of
harassment, their salary may be covered by the deputy’s budget for
parliamentary assistants. In cases where harassment by a member
is proven, following an internal investigation and in the light
of recommendations from the Advisory Committee, the president may
impose a sanction on the perpetrator in accordance with Rules of
Procedure of the European Parliament.
29. In 2019, the European Parliament adopted a resolution on gender
mainstreaming in the European Parliament in which it emphasised
that sexual harassment is a serious crime that goes under-reported
in most cases, an extreme form of gender-based discrimination and
one of the biggest obstacles to gender equality.
Note The European Parliament adopted a
resolution on 16 September 2021 with recommendations to the Commission
on identifying gender-based violence as a new area of crime listed
in Article 83(1) of the Treaty on the Functioning of the European
Union (TFEU).
Note
Canada
30. The Canadian Parliament has
made significant progress in the area of combating harassment on
its premises and is one step ahead in this field. It has introduced
detailed rules and procedures regarding harassment cases, including
the description of the jurisdiction of the relevant authorities,
strict time-limits for lodging harassment complaints and appeals,
the duration of the proceedings, the appeal mechanism, the scale of
sanctions and remedies. In 2021, the Senate adopted a new Senate
harassment and violence prevention policy which describes the roles
and responsibilities of every person in the Senate workplace to
ensure a work environment free from harassment and violence. It
provides processes to resolve occurrences of harassment and violence.
Note
31. The House of Commons has different policies for various personnel
categories: the Code of Conduct for Members of the House of Commons:
sexual harassment between members of parliament;
Note the Policy on preventing and addressing
harassment (2014) which applies to all MPs (as employers), personnel
employed by MPs, interns, and volunteers (paid or unpaid). Employees
covered by a collective agreement and employees of the House of
Commons Administration are not subject to the provisions of these
policies; separate frameworks apply to those personnel categories.
Note
32. Sexual harassment may be reported by the complainant to their
‘Whip’ if the respondent is a member of the same group or to the
Chief Human Resources Officer (CHRO) if the allegations involve
an independent member or members from different groups. If the mediation
was refused by the parties, or if the matter is not mediated to
the complainant’s satisfaction, the complainant may file a formal
complaint in writing with the CHRO. An outside investigator chosen
from a list of specialists is then called in to investigate the
allegations of sexual harassment.
33. In March 2018, the Austrian
Parliament established an independent body, the
Clearingstelle. It consists of an
expert appointed by the Speaker of Parliament whom members from
both chambers, staff from political groups and parliamentary assistants
can contact in the event of harassment. People have confidential
access to various types of information and individualised counselling.
It works primarily on prevention and awareness-raising initiatives
and establishing a climate of respect within the institution. Two
psychotherapists are available by phone and e-mail for information
or making appointments and offer personal advice in external practice rooms.
All discussions are treated confidentially; the therapists are also
subject to the legal obligation to maintain confidentiality.
Note
France
34. The Senate and the National
Assembly have both set a unit to combat harassment. The system for preventing
and combating all forms of harassment in the National Assembly has
been implemented since 1 February 2020.
Note Accessible 24 hours a day and consisting
of independent experts who guarantee the confidentiality of exchanges,
the anti-harassment unit at the National Assembly is designed to
respond to requests from all: victims or witnesses, civil servants,
contract workers, employees or elected representatives. Everyone
can obtain information, report harassment or seek support whenever
necessary. The use of an external service provider makes it possible,
on the one hand, to offer a service that can be accessed at any time
and regardless of the geographical location of the persons concerned,
and, on the other hand, to benefit from the expertise of professional
contacts.
35. In 2021, for the first time, the Bureau of the Senate was
called upon to give its ruling on an opinion of the Parliamentary
Ethics Committee concerning a report of suspected harassment, issued
in the framework of the procedure adopted by the Bureau on 4 November
2020, in line with the setting up in 2017 of a reception and listening
unit for employees who consider themselves to be victims of harassment.
The Senate Bureau followed the opinion of the Ethics Committee.
It considered that if the facts did not constitute harassment in
view of the elements gathered during the investigation, they revealed
the need for the senator, in order to comply with the obligations
as an employer, to commit to an individualised management support
approach. If the senator failed to commit to this approach and to
respect the terms of its implementation, the matter would be referred
to the Senate Bureau.
Note
United Kingdom
36. The Independent Expert Panel
was established by a resolution of the House of Commons on 23 June 2020.
The panel hears appeals against decisions made by the Parliamentary
Commissioner for Standards, considers referrals from the Commissioner
and determines sanctions in cases involving an allegation against an
MP of a breach of the parliament’s sexual misconduct policy or the
bullying and harassment policy, under the Independent Complaints
and Grievance Scheme. The panel is entirely independent, with no
MPs taking part in its decisions. It is guided by the principles
of natural justice, fairness for all parties, transparency and proportionality.
The sanctions determined by the Independent Expert Panel could include
the suspension or expulsion of an MP, which would then require a
vote in the House.
Note
3.3 Revising
the Assembly’s Code of Conduct
37. Sexism, any form of harassment
and violence in parliaments damage the reputation and image of parliamentarians
and of parliaments as institutions. The current Code of Conduct
for the members of the Parliamentary Assembly, by virtue of its
general principles protecting human dignity, covers inappropriate conduct,
which today would be classified as sexism, harassment, sexual violence
and misconduct. However, the current trends require that these forms
of misconduct be addressed explicitly in codes of conduct and the Assembly
should not be a misfortunate exception to this modern trend.
– Proposals for amendments to
the section “General principles of behaviour”
38. Considering that general principles are aspirational in nature
and make it possible to avoid loopholes every time members face
a new situation or are called to act in new circumstances, there
should be an amendment that generally covers all forms of harassment
and sexual misconduct and stigmatises such conduct as improper behaviour
encroaching upon human dignity. It could therefore be advisable
that paragraph 5.1 of the Code of Conduct be amended as follows:
“5. While performing their mandate
as members of the Parliamentary Assembly, members shall:
5.1. carry out their duties with due
respect to human dignity and with integrity and honesty”.
– Proposals for amendments to
the section “Rules of conduct”
39. Assembly Resolution 2274 (2019)
called for the introduction in the Code of Conduct of an explicit prohibition
of (i) sexism, (ii) sexual harassment and (iii) sexual violence
and (iv) [sexual] misconduct. The definitions of the above terms
have not been elaborated by the Assembly. At the same time, existing
Rule No. 1292 introduces the definitions of sexual harassment and
psychological harassment without defining other terms mentioned
in the resolution, notably sexism, sexual violence and misconduct.
40. The Code of Conduct has to be flexible enough to deal with
new situations that may emerge and should give proper consideration
to various cases which may require special interpretation in light
of the specific circumstances. The appropriate proposal in such
a situation would be to introduce these terms in the “rules of conduct”
without providing the definitions of those terms, leaving their
interpretation for further guidance and elaboration to those applying
the Code of Conduct. It is therefore proposed that the following
rule dealing with the prohibition of harassment and sexual misconduct
be introduced after paragraph 7:
“Members
shall refrain from any form of sexism, harassment and sexual violence
and misconduct.”
– Proposals for amendments to
section “Observance of the Code of Conduct”
41. Assembly Resolution 2274 (2019)
called to:
i introduce the obligation
to take account of the Council of Europe rules on the protection
of dignity;
ii co-operate with the relevant mechanisms;
iii take account of the decisions that might be taken as a
result of a harassment procedure;
iv ensure that the recommendations of the Commission against
Harassment and/or the decisions of the Secretary General of the
Council of Europe resulting from the application of Rule No. 1292
can be followed up by the Assembly in the context of its Code of
Conduct.
42. The modification of the Code of Conduct should be proposed
in a manner that integrates the existing Council of Europe procedures.
For this purpose, it would be appropriate to recognise the investigating
powers of the Commission against Harassment functioning in the Council
of Europe according to Rule No. 1292 and its possible successor
given that the relevant legal framework of the Council of Europe
is being currently revised. It has to be kept in mind that the commission
has jurisdiction to examine cases on harassment only. However, with
the forthcoming revision of Rule No. 1292, it is expected that the
competence of the Commission against Harassment or a successor body
will be extended to include sexism, sexual violence and misconduct.
43. Bearing this in mind, it is proposed to insert the following
paragraph after paragraph 18:
“For
all the cases concerning any form of sexism, harassment and sexual
violence and misconduct that involve members of the Parliamentary
Assembly, a recommendation or decision taken under the Council of
Europe procedures in the framework of its anti-harassment policy
shall be forwarded to the Committee on Rules of Procedure, Immunities
and Institutional Affairs for final determination of the case.”
– Proposals related to measures
in the event of non-compliance with the anti-harassment rules
44. Often, codes of conduct do
not introduce special sanctions in cases of non-compliance with
the anti-harassment rules but refer to the existing sanctions in
different regulatory frameworks which apply depending on the category
of the perpetrator.
Note However, it should clearly set out
the applicable sanctions according to the seriousness of proven
behaviour since the certainty of punishment is as important as its
severity. The Code of Conduct for members of the Parliamentary Assembly
contains a set of possible measures (paragraph 27) that the Committee
on Rules of Procedure actually applied in 2018 in the context of
the allegations of corruption of Assembly members or former members.
These sanctions establish a scale depending on the degree of seriousness
and provide an adequate framework.
45. It is recalled that if the Committee on Rules of Procedure,
Immunities and Institutional Affairs finds that there has been a
serious breach of the Code of Conduct, it will prepare a report
containing all the evidence gathered in the course of the investigation,
the observations of the member concerned, and its conclusions. This
report will be published on the Assembly’s website. The national
parliament of the member concerned could be invited to refer to
this publication on its own website.
