B Explanatory
memorandum by Mr Mignon, rapporteur
1 Introduction
1. On 21 September 2009, following an incident which
had occurred during a meeting, involving a failure to comply with
the code of conduct for co-rapporteurs of the Committee on the Honouring
of Obligations and Commitments by Member States of the Council of
Europe (Monitoring Committee),
Note the Chairperson of that committee referred
the matter to the Bureau of the Assembly. On 2 October, the Bureau
referred the matter to the Committee on Rules of Procedure, Immunities
and Institutional Affairs so that it might consider the possibility
of incorporating parts of this code of conduct into the Rules of
Procedure.
2. At its meeting on 5 November 2009, the Committee on Rules
of Procedure held an exchange of views and discussed the idea of
adopting a broader approach and drafting a code of conduct which
would apply to all Assembly rapporteurs. It also proposed updating
the existing code of conduct for co-rapporteurs on the honouring
of obligations and commitments by member states of the Council of
Europe, given that it had been drafted nine years previously, and
including additional undertakings. On 14 December 2009, the Bureau
took note of the committee’s initial conclusions and asked it to
draft a report on incorporating parts of this code of conduct into
the Assembly’s Rules of Procedure. On 28 April 2010 the Committee
on Rules of Procedure appointed Mr Mignon as rapporteur.
2 Matters
for consideration
3. The 2000 study by the Interparliamentary Union on
“the parliamentary mandate”
NoteNote defines
a “code of conduct” as “all moral or ethical precepts that parliamentarians
must respect during their mandate (and sometimes beyond it) in their
contacts with the outside world in order to preserve people’s confidence
in the integrity of their parliament and avoid any act that might
compromise the assembly”. The purpose of these rules is to “prevent
cronyism, conflicts of interest and, in general, any suspicion of
corruption”. This study points out that codes of conduct adopted
by parliaments “were originally intended to prevent the Assembly
from being besmirched by the conduct of one of its members”, and
“now increasingly form part of the campaign against loss of confidence
in parliament and in all political institutions”.
4. The scope of this report is more limited, being confined to
the rules applicable to rapporteurs in the exercise of their duties,
and not to parliamentarians in general. It obviously goes without
saying that the ethical principles by which all members of the Parliamentary
Assembly are bound also apply to rapporteurs.
2.1 Brief presentation
of the code of conduct for co-rapporteurs of the Monitoring Committee
5. The “Code of conduct for co-rapporteurs on the honouring
of obligations and commitments by member states of the Council of
Europe” (see Appendix) is an internal Monitoring Committee document,
approved by the committee in 2001, which is not formally part of
the Assembly’s Rules of Procedure (or the complementary texts).
6. It comprises two sections, one on the “Criteria for the appointment
of co-rapporteurs” and the other on the “Ethics of co-rapporteurs
during the monitoring procedure”.
7. Some of the criteria for the appointment of the Monitoring
Committee’s co-rapporteurs set out in the code of conduct were codified
recently
Note and
now have para-regulatory force.
NoteNoteNoteNoteNote
2.2 The Parliamentary
Assembly’s regulatory and para-regulatory provisions
8. It should be borne in mind that Rule 48.1 of the
Rules of Procedure already lays down general criteria for the appointment
of Assembly rapporteurs:
“… For
the appointment of rapporteurs, the committees shall take into consideration
the following criteria by order of priority: competence and availability,
fair representation of political groups (based on the D’Hondt system),
gender-balanced representation, geographical and national balance.”
9. The Assembly’s Rules of Procedures (and the complementary
texts) contain few provisions relating to professional ethics. The
main provision is Rule 12 on transparency and declaration of interest
of Assembly members. This provision, moreover, is the only one comprising
an obligation binding on rapporteurs.
10. Resolution 1554
(2007) on conflict of interest, adopted at the initiative
of the Committee on Rules of Procedure, provides that “All candidates
for rapporteurship shall make an oral declaration of any professional, personal,
financial or economic interests which might be considered relevant
or conflicting with the subject of the report or with the country
concerned by the report at the time of appointment in committee”
and that “Committees shall have the right to remove a rapporteur
who failed to declare such interests or who made an untruthful declaration.”
11. However, this provision, in force since October 2007, has
been applied only to candidates for the duties of rapporteur appointed
after that date, and not to rapporteurs already in office at the
time the resolution was adopted (a situation which concerns primarily
the Monitoring Committee).
2.3 References
12. The approach adopted by the Monitoring Committee
in its code of conduct might be supplemented by drawing on the existing
codes of conduct of a number of national parliaments or interparliamentary organisations,
insofar as some of these rules – apart from those mentioned above
relating to the declaration of interests – are relevant to the conduct
of members of the Assembly in their role as rapporteur.
13. With regard more specifically to the function of rapporteur,
it is interesting to note that the United Nations Human Rights Council
approved a “Code of Conduct for Special Procedures Mandate-holders”
(the “United Nations Special Rapporteurs”).
NoteNote This
code defines “the standards of ethical behaviour and professional conduct
that special procedures mandate-holders of the Human Rights Council
... shall observe whilst discharging their mandates”, and comprises
a definition of the status of mandate-holders, the general principles
of conduct in the exercise of their duties, the obligation to make
a solemn declaration in writing and the principles to be upheld
during their field visits.
14. In order to gather additional information which could help
the committee in its task, the rapporteur sent a short questionnaire
to national parliaments via the European Centre for Parliamentary
Research and Documentation (ECPRD).
Note The
rapporteur received replies from 32 parliaments,
Note and
he wishes to thank them for their co-operation.
15. An analysis of the replies shows that none of the national
parliaments which answered the questionnaire has a code of conduct
applying specifically to committee rapporteurs. However, this assertion
needs to be qualified in three respects:
- in several national parliaments, the function of committee
rapporteur simply does not exist;Note
- the function of rapporteur in the Parliamentary Assembly,
as defined in Rule 48 of the Rules of Procedure, is in essence very
different from that of committee rapporteur in a national parliament,
who is responsible – in some cases – for gathering the information
needed for the preparation of a report and – above all – for presenting
the committee’s position and conclusions on a piece of draft legislation
in the plenary assembly;
- in those national parliaments where a committee appoints
a rapporteur to consider a question which has been referred to it
and to draft a report, in the absence of a specific code or rules,
rapporteurs are bound by the general ethical rules applicable to
all members of the parliament (in particular, obligation to avoid conflicts
of interest or to declare interests; obligation to act in accordance
with the law and the rules of procedure; obligation to behave in
a dignified, responsible, honest and courteous manner; ban on using inappropriate
and undignified language, uttering insults or threats, making personal
attacks, committing assault, etc.).
16. In those national parliaments which answered the questionnaire
and where the function of rapporteur exists, the relevant rules
deal only with the manner of appointing rapporteurs and their role
in the reporting procedure.
17. The Rules of Procedure of the European Parliament make no
mention of any criterion applying both to the appointment of rapporteurs
and to the exercise of their duties (committees required to draft
a legislative report or a non-legislative report appoint a rapporteur
– Rules 45 and 47). Annex 1 to the Rules of Procedure of the European
Parliament on transparency and members’ financial interests contains
a clause referring to rapporteurs similar to that applying in the
Parliamentary Assembly (“Before speaking in Parliament or in one
of its bodies or if proposed as rapporteur, any Member who has a
direct financial interest in the subject under debate shall disclose
this interest to the meeting orally”).
18. As regards the rules for appointing rapporteurs, it is interesting
to note that the rules of procedure of some parliaments (for example,
the Belgian Chamber of Representatives) provide for rapporteurships
to be divided fairly, or proportionally, between the majority and
the opposition.
19. As regards rules of conduct for rapporteurs, some replies
mention – although this is a matter of practice rather than a formal
stipulation in the rules of procedure – a requirement of objectivity
or neutrality, meaning that rapporteurs must confine themselves
to presenting the conclusions of the committee on behalf of which they
are reporting and must leave aside their personal views.
3 Proposals
20. Following its debates at previous meetings, the Committee
on Rules of Procedure decided that “the code of conduct for co-rapporteurs
on the honouring of obligations and commitments by member states
of the Council of Europe” should be broadened to include all Assembly
rapporteurs and updated and supplemented with additional undertakings,
thus constituting a “code of conduct for Parliamentary Assembly
rapporteurs”.
21. However, the committee also considered that the model used,
the code of conduct for the co-rapporteurs of the Monitoring Committee,
included rules that were quite specific to that committee’s mode
of operation and would be inapplicable to other Assembly committees.
Accordingly, it took the view that there was no need to incorporate
any criteria for the appointment of rapporteurs in the code of conduct
envisaged. The existing rules already contain adequate provisions
on this point, in Rule 48.1 (criteria of competence, availability,
fair representation of political groups, gender-balanced representation,
geographical and national balance).
22. The committee therefore decided to adopt the following
criteria and categories of criteria:
a. Rules of conduct for rapporteurs:
principle of neutrality, impartiality
and objectivity, including in particular:
- undertaking not to have
any economic, commercial, financial or other interests, on a professional, personal
or family level, connected with the subject of the report, and obligation
to declare any relevant interests;
- undertaking not to seek or accept instructions from any
government or governmental or non-governmental organisation, pressure
group or individual;
- undertaking not to accept any reward, honorary distinction,
decoration, favour, substantial gift or remuneration from a government
or governmental or non-governmental organisation, a pressure group or
an individual in connection with activities carried out in the exercise
of their duties;Note
- undertaking to refrain from any act which may cast doubt
on their neutrality;
obligation of discretion, in particular
an undertaking not to make personal use of information acquired
in the course of their duties;
undertaking of availability, in
particular:
- undertaking to attend
meetings of the committee, Assembly sessions and Standing Committee
meetings in connection with their duties;
- undertaking to report to the committee;
- undertaking to carry out all necessary fact-finding visits;
undertaking to present a timetable
of action to the committee in keeping with the terms of reference,
together with a deadline for submitting their draft report (in line
with Rule 25.3 of the Assembly’s Rules of Procedure);
undertaking to respect the values
of the Council of Europe;
b. Rules applicable to the conduct of fact-finding missions:
undertaking that any fact-finding
mission should be consistent with and take place within the framework
of the rapporteur’s mandate;
undertaking to act in a manner
respectful of the laws and regulations of the country in which the
fact-finding mission takes place.
c. Penalty for breach of the rules:
Should a rapporteur fail to honour one or more undertakings,
the committee may withdraw his or her mandate and replace him or
her.
23. Any appointed rapporteur shall be given a copy of
the code of conduct.
