Report | Doc. 12427 | 25 October 2010

Promoting the most favourable gender equality laws in Europe

Committee on Equal Opportunities for Women and Men

Rapporteur : Ms Ingrida CIRCENE, Latvia, EPP/CD

Origin - Reference to committee: Doc. 11715, Reference 3498 of 28 November 2008. 2010 - November Standing Committee

Summary

Women should be entitled to greater rights to safeguard their personal dignity, integrity and autonomy. In addition, the exercise of these fundamental rights should not differ according to their place of residence. With this objective in mind, the initiative of the French voluntary association “Choisir la cause des femmes”(choose the women’s cause)for the “most favoured European woman clause”, in which states would entitle all women living in the European Union to benefit from whichever provisions of member states’ legislation are most favourable to them, is to be welcomed.

The Assembly should promote this initiative in all Council of Europe member states in five priority areas: combating violence against women in Europe; combating trafficking in human beings; encouraging women’s participation in political and public life and combating sexist stereotypes; promoting reproductive health (including sexual and reproductive rights) and enhancing women’s position in economic life.

In addition, the Assembly should invite the Committee of Ministers to identify the laws that are most favourable to women in Europe, draft an additional protocol on gender equality to the European Convention on Human Rights (ETS No. 5) and develop assistance and co-operation programmes to promote the most advanced legislation on equality between women and men in all the Council of Europe’s member states.

A. Draft resolution

(open)

1. The Parliamentary Assembly considers that equality between women and men is an essential precondition of all democratic societies. However, despite the progress achieved in Europe in this area, women’s rights vary considerably between member states. Moreover, with the current economic crisis there is a danger of a backlash leading to a reduction in women’s rights.

2. The Assembly is convinced that women should be entitled to greater rights to safeguard their personal dignity, integrity and autonomy and that the exercise of these fundamental rights should not differ according to their place of residence. Currently, however, women not only suffer from gender-based inequalities within their countries but are also subject to “territorial” discrimination.

3. The political will, in particular the one expressed by national parliaments, is fundamental to actively promoting equality between women and men, adopting and then implementing progressive legislation that guarantees, de jure and de facto, women’s fundamental rights and strengthens their autonomy.

4. The Assembly therefore welcomes the decision of the French voluntary association Choisir la cause des femmes (“Choose the women’s cause”) to encourage a “most favoured European woman clause”, which would entitle all women living in the European Union to benefit from whichever provisions of member states’ legislation were most favourable to them.

5. The Assembly wishes to support this initiative and extend it to all the Council of Europe member states, with a view to promoting a high level of fundamental rights, including equality between women and men, bearing in mind that one of the Council of Europe’s goals is to establish a common legal area, based on respect for human rights.

6. In particular, drawing on the “most favoured European woman clause”, the Assembly intends to encourage the adoption of a “legislative bouquet to foster equality between women and men” in five priority areas, namely combating violence against women in Europe; combating trafficking in human beings; women’s participation in political and public life and combating sexist stereotypes; reproductive health (including sexual and reproductive rights); and women and economic life.

7. The Assembly invites the national parliaments of the Council of Europe member states to:

7.1. draw inspiration from the most progressive laws on equality between women and men in Europe to enact legislation that is the most favourable to women;

7.2. support the “most favoured European woman clause” initiative;

7.3. include in their work priorities and their political agendas the areas identified as priorities in this resolution;

7.4. draw inspiration from the most progressive laws identified in Europe in the priority areas, and in particular:

7.4.1. the Spanish and Austrian laws on violence against women;

7.4.2. the Swedish, United Kingdom, Belgian and Bulgarian laws on trafficking in human beings;

7.4.3. the Belgian and Portuguese laws on women’s participation in political and public life;

7.4.4. the Dutch, Danish, Swedish and United Kingdom laws on reproductive health, including sexual and reproductive rights;

7.4.5. the Norwegian law, as well as the Swedish and Finnish laws on parental leave, in connection with women and economic life;

7.5. use International Women’s Day (8 March) as an opportunity to promote the “bouquet of the most advanced legislations on equality between women and men”, particularly by holding parliamentary hearings and exchanges of experiences, and assessing the progress of women’s rights in their own country.

8. The Assembly decides to prepare a handbook for parliamentarians on the promotion of equality between women and men, which would make it possible to identify the strategies required within parliaments and good legislative practices for promoting the “legislative bouquet” identified in the present resolution.

9. The Assembly intends to promote the “bouquet of the most advanced legislation on equality between women and men” in its relations with other parliamentary assemblies and international organisations.

B. Draft recommendation

(open)

1. Recalling its Resolution ... (2010) on promoting the most favourable gender equality laws in Europe, the Parliamentary Assembly notes that equality between women and men, which is a precondition for democracy, is far from being fully achieved in the member states and varies considerably from one country to another. Depending on where they live, the state of progress of women’s rights differs significantly.

2. The Assembly welcomes the recent stances in favour of equality between women and men taken by the Committee of Ministers (Declaration: “Making gender equality a reality”, adopted at its 119th session in Madrid on 12 May 2009) and the Ministers responsible for Equality between Women and Men (Resolution “Bridging the gap between de jure and de facto equality to achieve real gender equality” and Action Plan, adopted at the 7th ministerial conference in Baku on 25 May 2010). It encourages the Committee of Ministers to continue its efforts and to make equality between women and men a priority activity.

3. The Assembly invites the Committee of Ministers to:

3.1. instruct the relevant steering committees to identify the laws that are most favourable to women, in accordance with the Council of Europe’s standards;

3.2. ensure that the right to equality between women and men is interpreted in a uniform way by preparing an additional protocol to the European Convention on Human Rights on equality between women and men;

3.3. develop assistance and co-operation programmes, including parliamentary co-operation (subject to available financial resources) to promote the “bouquet of the most advanced legislation on equality between women and men” in all the Council of Europe member states, thereby encouraging them to adopt progressive legislation.

C. Explanatory memorandum by Ms Circene, rapporteur

(open)

1. Introduction

1. At the 4th meeting of women members of the Parliamentary Assembly of the Council of Europe (Strasbourg, 26 June 2008), Gisèle Halimi, President of the association “Choisir la cause des femmes”(Choose the women’s cause), presented her draft of the “most favoured European woman clause” which would constitute “a kind of legislative bouquet offered to every European woman”.

This proposal was unique in that it set out to combat horizontal discrimination between women living in different member states of the European Union.

2. At the end of that meeting, Lydie Err (Luxembourg, SOC) and others tabled a motion for a resolution to “extend the ‘most favoured European woman clause’ to all the member states of the Council of Europe”.

Ms Err represented the Parliamentary Assembly at the European colloquy entitled “The most favoured European woman clause: the best of Europe” organised by “Choisir la cause des femmes” in Paris on 27 and 28 November 2008. On 5 December 2008, the Committee on Equal Opportunities for Women and Men appointed me rapporteur.

2. What is the “most favoured European woman clause”?

3. In June 1971, Gisèle Halimi, an attorney and defender of women’s rights, together with a large number of French intellectuals, created the association “Choisir la cause des femmes”, which seeks to defend the status of women in French society. Its aims include combating rape and physical and mental violence, and the fight for equal representation for women in politics. Since 2005, this group, which brings together researchers, jurists, economists and sociologists, has carried out important work to elaborate “the most favoured European woman clause” on the basis of a comparative analysis of legislation. That work aims to pinpoint the laws which are most favourable to women in the different legislative provisions of the European Union’s member states affecting every aspect of women’s lives.

4. In 2008, Gisèle Halimi defined “the most favoured European woman clause” as “a mechanism which would enable European women to enjoy the highest status granted to women in any community state”. Ms Halimi went on to identify, in the positive law in force in the 27 countries of the European Union, the best laws currently in European countries.

All these laws together should constitute the foundation of European legislation, and be implemented without distinction throughout the European Union.

5. Five main aspects of women’s rights have been identified: choosing to give birth (sex education, contraception, abortion); “the family, haven of peace or a trap for women” (marriage, divorce, parental leave, parental authority); violence, battered women, rape, women forced into prostitution (marital violence, rape, prostitution, harassment); “work: women’s financial independence as the basis for all women’s liberties”; and “politics: what form of democracy for women”. For each topic the association has identified the most advanced model legislation in each country.

6. Today, “Choisir la cause des femmes” is working to raise awareness among European Union bodies and the member states of the European Union. These initiatives include a proposal to set up a European Parliament intergroup on the clause and to draw up a multilateral convention “associating Belgium, Spain, Sweden and France [and inviting] the contracting parties to make their legislation compatible with the most favoured European woman clause”.

In Belgium, Olga Zrihen, a member of the Belgian Senate, tabled a draft resolution in the senate on 24 January 2007 aimed at implementing “the most favoured European woman clause”.

In France, the National Assembly adopted Resolution No. 421 on 23 February 2010 designed to promote the harmonisation of European legislation applicable to women’s rights. Numerous contacts have been established in order to promote the “upward” harmonisation of legislation in the field of equality between women and men within the European Union.

3. Taking inspiration from the “most favoured European woman clause” to promote the progress of women’s rights in all Council of Europe member states

7. The work of the Council of Europe is based on respect of the rule of law (including the principle of non-discrimination), respect for human rights and pluralist democracy (including equality between women and men). Yet it must be said that equality between women and men, regarded as a fundamental criterion of democracy,

is by no means the reality. We still have to “bridge the gap between de jure equality and de facto equality”, as was emphasised during the 7th Council of Europe Conference of Ministers responsible for equality between women and men, held in Baku on 24 and 25 May 2010.

8. Moreover, depending on which European state they live in, women do not enjoy the same rights, do not have access to the same respect for their fundamental rights or equal protection of their integrity – in particular of the risk of exposure to gender-based violence – or the same opportunities for personal development, whether in their private or their public lives. Thus, I find that within the Council of Europe area women are victims of “territorial” discrimination. Even worse, a decline in fundamental rights is unfortunately being observed on a global scale and, despite the legislative advances achieved in Europe, this is being reflected in a mental retreat which is leading women to leave the labour market.

9. The draft “most favoured European woman clause” is an innovative and stimulating initiative which should encourage us to adopt the best possible laws for equality between women and men in Europe. The networking of national experiences within the Council of Europe, the work done both by the Parliamentary Assembly and by the Council of Europe as a whole,

and the wish expressed by Council of Europe Secretary General Thorbjørn Jagland to make gender equality a priority for our Organisation in the coming years, encourage me to continue in this direction. This report sets out to identify, among the legislative provisions of Council of Europe member states, those which are most favourable to women, and to suggest that the lawmakers in all Council of Europe member states take inspiration from them.

10. I consider equality between women and men as far from being achieved, both de facto and de jure. To make sure that this question continues to be given priority by national parliaments, and in order to get parliamentarians more actively involved in the subjects which we have identified as priorities, I suggest that the Assembly prepare a handbook for parliamentarians on the promotion of equality between women and men, offering tools and a number of good legislative practices on which parliamentarians can base their activities. The handbook could draw on work already published by the Assembly, the Handbook for parliamentarians on combating domestic violence against women and the Handbook for parliamentarians on the Council of Europe Convention on Action against Trafficking in Human Beings.

11. The purpose of this report is to identify the topics which could be selected in order to propose a “Council of Europe legislative bouquet to foster equality between women and men”, drawing on the method developed by Gisèle Halimi. At the meeting on 27 May 2010, the Committee on Equal Opportunities for Women and Men agreed to the subjects which could be included in the Council of Europe legislative package. This report endeavours to identify exemplary laws – partly inspired by the good practices identified by Gisèle Halimi in the states of the European Union – and to propose activities which could be carried out by member states. The list is far from exhaustive and work on identifying the most advanced forms of legislation should continue and be extended.

4. A proposed “legislative package” to take women’s rights forward in all Council of Europe member states

12. Identifying a “legislative bouquet to foster equality between women and men” from among the 47 member states of the Council of Europe is an ambitious project. So I suggest limiting the number of subjects selected, giving preference to the fields that are Council of Europe areas of strength or on which the Assembly and/or the Council of Europe as a whole have already taken a stance.

13. In order to define this Council of Europe “model legislative package”, and further to my proposal, the committee decided to select the following five subjects, which are developed below:

a. combating violence against women in Europe;

b. combating trafficking in human beings;

c. participation of women in political and public life and combating sexist stereotypes;

d. reproductive health (including sexual and reproductive rights);

e. women and economic life.

4.1. Combating violence against women

14. Combating violence against women has been the subject of many Council of Europe studies over several years.

14.1. In Recommendation CM/Rec(2007)17 on gender equality standards and mechanisms, adopted on 21 November 2007, the Committee of Ministers considered that “violence against women is one of the most serious violations of human rights and fundamental freedoms of women”

and recommended that the Council of Europe member states “enforce legislation and effective judicial procedures to prevent violence against women”.

This recommendation supplements Recommendation Rec(2002)5 on the protection of women against violence.

14.2. For over a decade,

the Assembly has been engaged in combating violence against women. This has been reflected in particular by the implementation of the parliamentary dimension of the Council of Europe campaign “Stop domestic violence against women” (2006-2008). In its Resolution 1582 (2007) on “Parliaments united in combating domestic violence against women”: mid-term assessment of the campaign, and then in its Resolution 1635 (2008) on combating violence against women: towards a Council of Europe convention, the Assembly invited national parliaments to adopt, and monitor the application of, the seven landmark measures identified by the Assembly and regarded as minimum standards.

14.3. In support of the efforts of national parliaments, the Assembly drafted a Handbook for parliamentarians on combating domestic violence against women, suggesting awareness-raising and legislative and standard-setting actions designed to prevent and combat this violation of the rights of the human being. The Compendium of parliamentary actions and good practices, published by the Assembly at the end of the campaign was an opportunity to highlight effective lines of action developed by national parliaments.

14.4. Today, the Council of Europe is working on a draft convention on preventing and combating violence against women and domestic violence which will bring together a body of rules and standards on the protection of victims, prosecution of offenders, prevention and policies to foster equality between women and men.

The Committee on Equal Opportunities for Women and Men is closely associated with the drafting of that text and will be involved in promoting its implementation.

15. Combating violence against women remains an action priority for the Council of Europe. However, legislation within the 47 member states is at varying stages of advancement and the successful ratification of the future Council of Europe convention and its implementation throughout the European continent will depend on the ability of the member states to adopt and put into practice effective legislation.

16. In this field, the Spanish law of 28 December 2004, known as the “outline law on integral protection measures against gender violence”, is particularly well advanced. It comprises measures to generate awareness of gender violence in schools from the earliest years,

and the training of public service personnel to recognise women who are the victims of violence so that they can be referred to police services and reception centres. The law also comprises emergency protection measures for victims,

requiring that the victim be immediately physically separated from the perpetrator of the violence and guaranteeing protection of victims. It lays down heavy penalties for offenders, together with specific aid programmes for victims. Lastly, it provides for the establishment of special courts, each of them having a judge specially trained to deal with violence against women; sections constituted in this way must be set up in ordinary courts and appeal courts. The Spanish law might be seen as a model from which the other member states of the Council of Europe could take inspiration.

17. Since 1996, Austria’s law on protection against violence within the family has enabled the civil courts to issue, for the benefit of victims, protection orders which can, in particular, provide for exclusive use of the family home, enable the police to expel from the family home the perpetrator of marital violence pending a court decision, or organise co-operation between the police, the courts and local facilities set up to help women.

18. Where combating violence against women is concerned, the Assembly should recommend that member states draw inspiration from:

Spain’s outline law on integral protection measures against gender violence, for the complete range of measures which it includes in respect of the protection and rehabilitation of victims and the prevention of violence against women;

Austria’s law, for the measures to remove the violent spouse and the arrangements for multi-agency co-operation set up to assist victims.

4.2. Combating trafficking in human beings

19. The fight against trafficking in human beings – including trafficking for purposes of sexual exploitation which affects women in particular, organ trafficking and forced labour – culminated in 2005 with the adoption of a Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197).

Furthermore, Recommendation CM/Rec(2007)17 from the Committee of Ministers to member states on gender equality standards and mechanisms invites member states to adopt and enforce legislation and effective judicial procedures to protect victims of trafficking and punish perpetrators. In Resolution 1702 (2010) on action against trafficking in human beings: promoting the Council of Europe convention, the Assembly invited national parliaments to promote the ratification and implementation of this convention and its monitoring mechanism.

20. In Resolution 1702 (2010), member states are invited to examine the legislation in force in Sweden and the United Kingdom,

which constitutes reference legislation in favour of women in combating human trafficking, and which could be included in the “legislative package” proposed by the Council of Europe.

21. In its “Handbook for parliamentarians on the Council of Europe Convention on Action against Trafficking in Human Beings”, the Assembly identified several legislative measures, some of which are highlighted below:

22. The Assembly should recommend that member states draw inspiration from:

the Swedish and British laws combating the trafficking of human beings, making it a crime to pay to have sexual relations with women working as prostitutes who have been trafficked or coerced by men;

the Belgian laws of 2003 on assistance to victims of human trafficking and against the practices of “traders in sleep”;

Bulgaria’s Crime Victim Assistance and Financial Compensation Act of 2007.

4.3. Balanced participation of women and men in political and public decision-making bodies

23. Following the adoption of Recommendation Rec(2003)3 on balanced participation of women and men in political and public decision making was identified as a “crucial element of democracy” in the Action Plan adopted at the 3rd Council of Europe Summit of Heads of State and Government in May 2005. In a declaration in May 2009, the Committee of Ministers reasserted that equal participation by women and men in political life is one of the foundations of democracy and one of the Organisation’s aims.

24. The Assembly has adopted a series of resolutions and recommendations aimed at promoting participation by women in decision making.

Most recently, the Assembly adopted Recommendation 1899 (2010) on increasing women’s representation in politics through the electoral system (rapporteur: Ms Err, Luxembourg, SOC) and called for “reforms to the electoral system to make it more favourable to women’s representation”

and “positive discrimination measures for the under-represented sex”

in Council of Europe member states.

25. Ms Err’s report highlights the case of Belgium, one of the 10 Council of Europe member states which has adopted binding legal quotas for national parliaments and also regulated the order of candidates on lists.

The Belgian law

has in fact been selected by Gisèle Halimi and could be included in the Council of Europe’s “legislative bouquet”.

26. Any attempt to secure balanced participation of women and men in decision making also requires us to combat stereotypes, particularly in the media, as the Parliamentary Assembly stressed in its Resolution 1751 (2010).

The violent or biased reactions to the explanatory report to this resolution in certain media outlets show that this is still a sensitive and controversial subject that is at the heart of the battle for equality between women and men. The lack of visibility of women in the media, their under-representation and the persistence of sexist stereotypes that confine women and men to the traditional roles assigned to them by society are all obstacles to equality between women and men.

27. Furthermore, the Assembly, by introducing its Gender Equality Prize in 2009, emphasised the fundamental role of political parties in promoting women’s access to decision-making positions in parties and to elected offices, and the need to promote positive measures to this end. The 2009 prize was awarded to the Portuguese Socialist Party, which managed to obtain, while it was in government, a compulsory minimum quota for all parties at all elections of 33% of candidates of the under-represented sex, thereby exporting to all the other parties the voluntary quota that had been agreed with the Socialist Party itself.

28. The Assembly should invite Council of Europe member states to draw inspiration from:

the Belgian law which incorporated parity into the constitution, introduced quotas at every level of decision making and provides for effective penalties by rendering inadmissible, for all elections, lists which do not comply with the law;

the Portuguese law which made a minimum quota of 33% of women compulsory for all political parties at all elections.

4.4. Reproductive health

29. The Assembly has dealt with the subject of reproductive health on several occasions. In Resolution 1399 (2004) on a European strategy for the promotion of sexual and reproductive health and rights, the Assembly recommended that member states work together to design a European strategy for the promotion of sexual and reproductive health and rights and to devise, adopt and implement comprehensive national strategies on sexual and reproductive health. In 2010, in its Recommendation 1903 (2010) “Fifteen years since the International Conference on Population and Development Programme of Action”, the Assembly exhorted member states to “ensure access to comprehensive sexual and reproductive health services with particular attention to ensuring access to affordable, acceptable and appropriate family planning methods, skilled birth attendants and obstetric emergency care to prevent unwanted pregnancies, abortions, sexually transmitted infections and maternal ill health and death”.

30. Where abortion in particular is concerned, the Assembly invited the member states, in Resolution 1607 (2008) on access to safe and legal abortion in Europe, to decriminalise abortion if they have not already done so and lift restrictions which hinder, de jure or de facto, access to safe abortion. It observes that the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way.

31. In her chapter “Choosing life”, Gisèle Halimi highlights the situations in Denmark, with its sex education beginning at primary school and its family planning centres; in the Netherlands, with direct and free access to contraception for girls and women and in Sweden, where women’s right to control their own bodies is respected and where the statutory time limit for abortion is eighteen weeks.

32. Where reproductive health is concerned, and particularly access to safe and lawful abortion, it is important to ensure that women can actually exercise their rights. In this context, as Ms McCafferty (United Kingdom, SOC) has pointed out, unregulated use of conscientious objection hinders women’s effective access to lawful medical care. In this field, some countries have organised their health-care systems and personnel recruitment in such a way as to ensure that there are doctors who are willing and able to provide services. For example, guidelines on the appointment of doctors to hospital positions, issued by the United Kingdom National Health Service, recommend that termination of pregnancy duties should be a feature of the job when adequate services for termination of pregnancy “would not otherwise be available”, that the job description should be explicit about termination of pregnancy duties and that applicants should be “prepared to carry out the full range of duties which they might be required to perform if appointed”, including duties related to termination of pregnancy.

33. The Assembly should recommend that inspiration be drawn, where reproductive health is concerned, from the laws of:

the Netherlands, in respect of direct and free access to contraception for girls and women;

Denmark, in respect of sex education classes which begin at primary school and family planning centres;

Sweden, relating to respect for women’s right to control their own bodies;

the United Kingdom, in respect of a health-care system and personnel recruitment that are organised in such a way as to ensure that there are doctors willing and able to provide reproductive health-care services.

4.5. Women and economic life

34. The Committee of Ministers of the Council of Europe laid down the principle of participation by women and men in decision making, in the economic field and elsewhere, in Recommendation Rec(2003)3. The Assembly has worked in particular on combating discrimination in the labour market and pension systems

and equal pay,

and on the preparation of a report on “More women in economic and social decision-making bodies”.

35. With regard to balanced participation of women and men in economic decision making, Norway has introduced quotas requiring a minimum of 40% of women on management boards, whether in the private or the public sector. The Norwegian example may be offered as good legislative practice and, according to the rapporteur on the wage gap between women and men, help to reduce this wage gap.

36. The Assembly should recommend that inspiration be drawn from:

the Norwegian legislation on the introduction of a 40% quota of women on firms’ management boards;

the Scandinavian (particularly Icelandic, Norwegian and Swedish) legislation introducing a minimum parental leave for fathers, encouraging fathers to take paternity leave.

5. Conclusions and recommendations

37. By defining a “Council of Europe legislative bouquet to foster equality between women and men”, the Parliamentary Assembly would identify the most advanced legislation in the member states of the Council of Europe in the five areas mentioned. It could encourage national parliaments in the member states to take inspiration from it in order to propose the most progressive laws for all women living on the European continent.

38. The Assembly could invite the national parliaments of the Council of Europe member states to:

include in their priorities and on their political agenda those subjects identified by the Assembly as priorities, namely:

a. combating violence against women in Europe;

b. combating trafficking in human beings;

c. participation of women in political and public life; combating sexist stereotypes;

d. reproductive health (including sexual and reproductive rights);

e. women and economic life.

use International Women’s Day (8 March) to promote the Council of Europe’s “legislative bouquet”, and particularly to evaluate the progress of women’s rights in their own country.

39. The Assembly could decide to:

prepare a “Handbook for parliamentarians on the promotion of equality between women and men”, which would make it possible to identify the parliamentary strategies to be developed within parliaments and good legislative practices for promoting the “legislative bouquet” identified by the Assembly;

promote parliamentary co-operation programmes (subject to the availability of funds) to promote gender equality within national parliaments.

40. Lastly, the Assembly should invite the Committee of Ministers to guarantee to all women, wherever they may live within the Council of Europe area, the same rights to gender equality as well as uniform interpretation of those rights, through the drafting of an additional protocol to the European Convention on Human Rights on equality between women and men.