1. Introduction
1. The members of the Parliamentary Assembly of the
Council of Europe perform a range of duties, including: adopting
political resolutions on issues of key interest for European States;
participating in missions to observe elections; supporting the activities
of different intergovernmental or other bodies; electing the judges of
the European Court of Human Rights, the Council of Europe Commissioner
for Human Rights, the Secretary General of the Council of Europe,
the Secretary General of the Parliamentary Assembly and other important officers.
2. Citizens, on behalf of whom parliamentarians act, should be
able to have confidence that Assembly members carry out their duties
in good faith and do not use their position for their own private
benefit. Moreover, the Assembly should also have the means of holding
a given member to account if he or she undermines the institution’s
reputation.
3. Until recently, the Assembly’s Rules of Procedure did not
embody any specific requirement for members’ conduct. The respect
of such principles as integrity and honesty seemed to be taken for
granted since Assembly members were national parliamentarians and
had to comply with ethical rules or anti-corruption provisions set
up at national level. As a first step, conduct requirements were
only applicable to co-rapporteurs of the Committee on the Honouring
of Obligations and Commitments by Member States of the Council of Europe
(Monitoring Committee) who had their own code of conduct, approved
by the committee in 2001.
4. When dealing with questions of democracy and the fight against
corruption in the 2000s, the Assembly underlined on several occasions
the need for parliamentarians to declare financial interests. As
a consequence,
Resolution
1554 (2007) on conflict of interest was adopted in 2007, which introduced
into the Assembly’s Rules of Procedure an obligation for all Assembly
rapporteurs to orally declare any professional, personal, economic
or financial interests which might be considered relevant or conflicting
with the subject of the report. Moreover, all members were encouraged
to make a similar oral declaration of interest before speaking in
committees or in the Assembly.
5. In 2006, the experience of the Monitoring Committee led to
calls for the code of conduct for its co-rapporteurs to be supplemented.
The initial request for an update resulted in the drafting of a
code of conduct applicable to all rapporteurs of the Parliamentary
Assembly, which was adopted in 2011.
![(2)
Resolution 1799 (2011) on a code of conduct for rapporteurs of the Parliamentary
Assembly, and Doc. 12524, report by the Committee on Rules of Procedure, Immunities
and Institutional Affairs (rapporteur: Mr Jean-Claude Mignon, France,
EPP/CD).](/nw/images/icon_footnoteCall.png)
6. The present report on a code of conduct for the Assembly’s
members results from two motions tabled in 2011 which were referred
to the Committee on Rules of Procedure, Immunities and Institutional
Affairs for report and have subsequently been merged by a decision
of that committee.
7. In June 2011, Mr Mignon and others tabled a motion for a resolution
(
Doc. 12669) pointing to a need to have a code of conduct for all
members of the Assembly. The committee was asked,
inter alia, to address the issue
of gifts as well as to provide for a suitable safeguard against
acceptance of hospitality in return for political favours. A second
motion for a resolution on strengthening the mechanism for conflicts
of interest (
Doc. 12754) was tabled in October 2011 by Mr Harutyunyan and others
and aimed to regulate the activities of interest groups (non-governmental
organisations (NGOs), lobbyists representing private entities or
States) which have become more involved in the Assembly’s work in
recent years. In particular, it was looking to regulate these activities
in terms of transparency and Assembly members’ accountability. These
proposals are to be combined with requests by some Assembly members
![(3)
See, for example, the
letter of 16 December 2011 from Baroness Nicholson of Winterbourne
to the Secretary General of the Parliamentary Assembly concerning
members of the Mudjahaden-e-Kalq (MEK) who had been lobbying in
front of the Assembly Chamber.](/nw/images/icon_footnoteCall.png)
calling for the
rules on access to the Palais de l’Europe, the main building of
the Council of Europe, to be strengthened.
8. In the context of the preparation of the present report, the
Rules Committee held two hearings, on 1 December 2011 in Vilnius
![(4)
Hearing on “A code
of conduct of members of the Parliamentary Assembly” with the participation
of: Mr John Lyon, Parliamentary Commissioner for Standards, United
Kingdom; Mr Vaidotas Bacevičius, member of the Commission for Ethics
and Procedures of the Seimas; Mr Sergej Muravjov, Executive Director
of Transparency International Lithuania.](/nw/images/icon_footnoteCall.png)
and
on 24 January 2012 in Strasbourg.
![(5)
Hearing on “Lobbying
activities in the Parliamentary Assembly” with the participation
of: Mr Dick Marty, former Chairperson of the Monitoring Committee
of the Parliamentary Assembly (2010-2011), former rapporteur of
the Assembly; Mr Göran Lindblad, former Chairperson of the Political
Affairs Committee of the Parliamentary Assembly (2008-2009), former
rapporteur of the Assembly; Mr José Lalloum, Chair, European Public
Affairs Consultancies’ Association (EPACA); Mr Christian D. de Fouloy,
Chair, Association of Accredited Lobbyists to the European Union
(AALEP); Mr Gregor Puppink, Director, European Centre for Law and
Justice.](/nw/images/icon_footnoteCall.png)
The rapporteur would like to warmly
thank all the participants whose input contributed to the drafting
of this report.
9. The concerns which have been expressed in the above-mentioned
motions coincide with the general call for more transparency of
elected bodies. In 2007, the Assembly already expressed concern
about the dysfunctioning of political institutions observed in Council
of Europe member States and identified the public’s diminishing
trust in the integrity of parliamentarians as one of the causes
of the crisis of democracy in Europe.
![(6)
See the reports presented
by the Political Affairs Committee in 2007 on the state of democracy
in Europe (Doc. 11203) and in 2010 on “Democracy in Europe: crisis and perspectives”
(Doc. 12279), rapporteur: Mr Andreas Gross (Switzerland, SOC).](/nw/images/icon_footnoteCall.png)
This
public frustration has been amplified by corruption scandals that
erupted in several countries and the financial and economic crisis
that began in 2008. In this sensitive context, parliaments, including
the Assembly, strived to reaffirm their commitment to transparency
and integrity standards.
10. Moreover, the general anti-corruption standards set out in
the United Nations Convention against Corruption and the Council
of Europe Criminal Law Convention on Corruption (ETS No. 173) should
be implemented at Assembly level as well. The Council of Europe’s
Group of States Against Corruption (GRECO) launched, in January
2012, its Fourth Evaluation Round examining prevention of corruption
by members of parliament, judges and prosecutors. The time therefore
seems right for the Assembly to introduce its own code of conduct.
11. Currently, the Assembly recognises the risk that a member’s
financial, economic, commercial or other interests may conflict
with his or her duties as a member of the Assembly, particularly
in the case of rapporteurs or members of electoral observation missions.
The aim of the present report is to provide a better understanding
of the provisions set forth in the proposed draft code of conduct
for all Assembly members (see Appendix to the draft resolution)
and to show that, regardless of legal and national diversities,
a certain consensus has been reached over core principles essential
for the functioning of an elected body in a democratic society,
notably on the declaration of gifts and hospitalities, the declaration
of conflict of interest and the ban on paid advocacy.
![(7)
For a complete overview
of the situation in the European Union and the European Union member
States’ parliaments, see the report on “Parliamentary Ethics – a
question of trust”, Office for Promotion of Parliamentary Democracy,
European Parliament, 2011 – <a href='http://www.europarl.europa.eu/pdf/oppd/Page_8/codes_of_conduct_FINAL-ENforweb.pdf'>www.europarl.europa.eu/pdf/oppd/Page_8/codes_of_conduct_FINAL-ENforweb.pdf</a>.](/nw/images/icon_footnoteCall.png)
12. The rapporteur wishes to emphasise that the effectiveness
of the code of conduct will depend on members’ will to comply with
those standards,
![(8)
“No
set of rules can bind effectively those who are not willing to observe
their spirit, nor can any rule of law foresee all possible eventualities
which may arise or be devised by human ingenuity. This Code of Conduct
has been formulated in as simple and direct a manner as possible.
Its success depends both first and last on the integrity and good
sense of those to whom it applies”, quotation from the code of conduct
of the South African National Assembly.](/nw/images/icon_footnoteCall.png)
as well
as on tools and administrative elements making it possible to ensure
its implementation. Once the code is adopted, its implementation
will be the next challenge the Assembly will have to face in order
to be credible on this subject.
2. Scope
of the code of conduct
13. The draft code of conduct completes the existing
internal regulations by setting the general standards all Assembly
members are expected to follow while carrying out their duties.
It does not replace the code of conduct for Assembly rapporteurs,
which was drafted bearing in mind the specific nature of rapporteurs’
duties, nor the requirements which may be applicable, for instance,
to the observation of elections
![(9)
Special requirements
concerning members observing elections are specified in the guidelines
for the observation of elections by the Parliamentary Assembly (AS/Bur
(2012) 09 rev), which notably require candidates to disclose conflicts
of interest: “18. All candidates for membership of an ad hoc committee,
at the time of putting forward their candidacy, shall make a written
declaration of any actual or potential economic, commercial, financial
or other interests on a professional, personal or family level in
connection with the country concerned by the election observation.
They shall also declare any substantial gift or benefit in kind,
including payment of travel costs, received from the country concerned.”](/nw/images/icon_footnoteCall.png)
or
to members of the sub-committee responsible for conducting interviews
with candidates for the election of judges to the European Court
of Human Rights.
14. The draft code applies to members in their capacity as members
of the Parliamentary Assembly and covers situations which occur
in members’ public life. The code’s legitimacy and moral standing
derives from the fact that it will be adopted by the Assembly itself;
similarly, its credibility will depend on its subsequent application
by the members and by the Assembly.
3. General principles
of behaviour
15. The success of any ethical regime requires that core
principles be shared by all members regardless of their ideological
or political positions. Often called ethical standards, the general
principles provide a benchmark for expected behaviour. Rather than
imposing obligations, general principles are aspirational in nature
and make it possible to avoid loopholes whenever members face a
new situation or are called to act in new circumstances. Not being
subject to adjudication, these principles are used in evaluating
complaints.
16. The general principles, listed in paragraph [16] of the draft
code of conduct, have been inspired by the seven principles of public
life enunciated by the United Kingdom Committee on Standards in
Public Life (the Nolan Committee) in 1995. Similar principles, which
could be given slightly different interpretations, have been integrated
into most parliamentary codes of ethics or codes of conduct and
are nowadays inherent in the functioning of any public institution
in a democratic society.
![(10)
These
general standards also reflect those suggested in the Technical
Guide to the United Nations Convention against Corruption: “The
[code] standards should include: fairness, impartiality, non-discrimination,
independence, honesty and integrity, loyalty towards the organization,
diligence, propriety of personal conduct, transparency, accountability,
responsible use of organizational resources and appropriate conduct
towards the public.”](/nw/images/icon_footnoteCall.png)
17. While acting individually, members represent the Assembly.
Therefore, they are required not to bring the institution into disrepute
through the activities they carry out publicly. Furthermore, the
holders of the office are expected not to use resources available
for their or anyone else’s private gain and, when carrying out an activity,
to ensure that the public interest prevails over any other. Given
that parliamentarians often face multiple conflicts of interest,
the draft code of conduct tries to draw a clear line between legitimate
conflicts relating to constituent services, on the one hand, and
private conflicts of interest and their appearance, on the other.
It requires such conflicts to be resolved in a way that protects
the public interest. Leadership and setting an example require members
to be consistent in the values they are promoting and invite members
to develop their political culture and to maintain an ethical cohesion
within the Assembly.
![(11)
Article
17 of the Code of Ethics for members of the Saeima of the Republic
of Latvia invites members to keep learning and acquiring knowledge
about democratic and political culture.](/nw/images/icon_footnoteCall.png)
4. Rules of conduct
4.1. Reputation of the
Assembly
18. Paragraph [18] of the draft code of conduct aims
to protect the reputation of the institution itself. Members can
bring discredit to the institution through a variety of actions
that can be unethical, illegal or viewed as inappropriate by the
Assembly. These activities will often involve actions that conflict
with the member’s obligation to serve the public interest. Examples
would include blatant and continued disrespect based on gender,
race or religion, or inappropriate use of the Assembly’s facilities
for private business. In some cases, illicit actions will not fall
directly under the member’s role in the Assembly but rather be so
harmful to the reputation of the institution that some action by
the Assembly is deemed necessary. Examples of these actions might
include criminal indictment for embezzlement or fraud.
4.2. Conflicts of interest
19. Paragraph [19] makes avoiding specific kinds of conflicts
of interest a requirement for members of the Assembly. Some conflicts
of interest will be inevitable: members may represent farmers, who
will differ with businesses over land use, or be physicians who
disagree with theologians on the beginning of life, or land developers
conflicting with environmentalists. These conflicts are not what
this paragraph prohibits. Rather, it requires members to put the
public interest before any other interest and requires them to disclose
conflicts they cannot resolve.
![(12)
For instance, a member
could make a short oral declaration before he or she takes the floor
in the Assembly or in a committee.](/nw/images/icon_footnoteCall.png)
Conflicts
to be avoided often arise from personal interests, usually involving
financial benefit that will advantage a member, or his or her family
or friends.
20. In addition to the transparency that disclosure of interest
provides, it also reminds Assembly members that some of their actions
in a given area could be seen as biased by the public or their colleagues.
![(13)
Any decision or action
could be seen as potentially biased if, for instance, a member taking
part in an election observation mission in a given country owns
an important share in or is on the governing board of a group which
is trying to break into this country’s market or increase its local
market share; or if a member belongs to his or her national parliament’s
friendship group with this country’s parliament. In this case, the
declaration would not prevent them from taking up their duties,
but would rather bring more transparency and serve as a reminder
that all his or her actions are likely to be more closely scrutinised.](/nw/images/icon_footnoteCall.png)
21. Almost every member State of the Council of Europe has laws,
rules or guidance for legislative members on conflicts of interest.
The Organisation for Economic Co-operation and Development (OECD)
has produced several major studies on the importance of controlling
conflicts of interest and creating systems to do so.
![(14)
For example, “Trust
in Government: Ethics Measures in OECD Countries” and “Managing
Conflicts of Interest in the Public Service”.](/nw/images/icon_footnoteCall.png)
These
systems include disclosure of finances or interests, an ethics counselling
system for members and regular ethics training.
22. Paragraph [19] refers to actual and potential conflict. The
potential conflict requires members to envisage potential situations
where their actions and decisions may result in a clear conflict
of interest or post-factum appear to their colleagues or citizens
as inappropriate. Advice could be sought from the Secretary General
of the Assembly to identify potential conflicts of interest.
23. Paragraph [20] encourages members to make an ad hoc oral declaration
of interest.
![(15)
Transparency
and members’ declaration of interest, Article 2, Complementary texts.](/nw/images/icon_footnoteCall.png)
However,
in some situations, a written declaration is deemed to be more appropriate,
for example for those observing elections. Since their last modification
on 27 January 2012, the guidelines for the observation of elections
by the Parliamentary Assembly require candidates for election observation
missions to fill in a special declaration form which includes some
information on where conflicts of interest, actual or potential,
may arise given the special duties relating to the observation of
elections.
4.3. Ban on paid advocacy
24. Paragraph [21] provides an example of a conflict
of interest where a member becomes a paid advocate – paid by some
outside group or person – to initiate a cause or matter in the Assembly.
Even if the member argues that this outside payment has had no impact
on his or her decisions, the appearance of bias to the public can
damage the reputation of the entire institution. It does not prevent
members from pursuing any gainful occupation (such as a consultant
or a legal adviser) or being employed in compliance with national
regulations, provided members do not receive any payment or benefits
in kind for furthering a given interest with the Assembly.
4.4. Acceptance of fees,
compensation, gifts and similar benefits
25. The ban in paragraph [22] against parliamentarians
soliciting or accepting outside compensation, rewards or gifts in
return for carrying out their legislative role is common throughout
Europe. In addition, the acceptance of a gift leading to an apparent
conflict of interest is also an important standard since “appearances are
often the only window that citizens have on official conduct, so
rejecting the appearance standard is tantamount to denying democratic
accountability”.
![(16)
Stuart
C. Gilman, “Appearance of Impropriety”, Encyclopedia of Public Administration
and Public Policy (NY: Crc Pr I Llc, 203).](/nw/images/icon_footnoteCall.png)
26. Most countries define “gifts” broadly: they include items
above a certain value, travel expenses, tickets to cultural or sporting
events, favours or gifts to close family members and personal loans
which have been made available by both private entities and public
authorities. The provisions concern any benefits which have been
offered by a third party, whether they be public authorities or
from non-public interests.
27. Offering gifts is part of normal human relations and a matter
of courtesy and civility. Moreover, working lunches or social events
often provide parliamentarians with an opportunity to discuss an
issue or to build up constructive working relationships with others.
28. Different countries have different policies, customs or hospitality
thresholds regarding both offering and receiving gifts. However,
some indicators, though subjective, would allow members to assess
whether a given benefit may be seen as inappropriate or amount to
a conflict of interest. The following questions should be asked
when accepting a gift or a payment: Would it be embarrassing for
a member if information regarding such a gift or payment were made
public (the “sunshine test”)? Would they be considered as proportionate
to the legitimate objectives to be achieved? Does their funding
come from reputable sources?
4.5. Use of office for
private gain
29. Provisions similar to paragraph [23] prescribing
use of one’s office for private gain are found in some form or another
in most codes of conduct.
![(17)
Principles
of Deputies Ethics of the Sejm of the Republic of Poland, Article
3.](/nw/images/icon_footnoteCall.png)
This is an especially difficult problem for
legislators because many of their decisions will result in gain
for one or more private parties. The difference between acceptable
decision-making and an illicit decision is whether it was made in
the public interest or to enrich the member or his or her family
or friends.
![(18)
It
is worth noting that, in practice, some distinction needs to be
made between a narrow benefit and benefit that accrues to a broad
class of citizens. Many legislative actions fall into the latter
category. For example, if a parliamentarian votes for a particular
measure that would benefit a broad class of citizen (those who own
shares or bonds) (s)he might also benefit as a member of that class.](/nw/images/icon_footnoteCall.png)
4.6. Improper use of
information
30. The misuse of information (paragraph [23]) for personal,
economic or political benefit is one of the more pernicious forms
of corruption in legislatures.
![(19)
Code of Ethics for
Members of the Saeima of the Republic of Latvia, Article 12; Code
of Conduct of the United Kingdom House of Commons, Rule 13; Code
of conduct for rapporteurs of the Parliamentary Assembly, paragraph
1.2.](/nw/images/icon_footnoteCall.png)
Recently, in the United States of America,
changes were made to prevent legislators from using private information
to carry out “insider trading”. Members had used information they
gathered in private or in closed hearings to invest or divest in
stocks or other financial interests (for example real estate holdings).
Because of their immunities as legislators, laws covering insider
trading had not applied to them. Ironically, this exemption from
strict criminal penalties had not been available to anyone else
in government.
![(20)
<a href='http://www.cbsnews.com/8301-18560_162-57323527/congress-trading-stock-on-inside-information'>www.cbsnews.com/8301-18560_162-57323527/congress-trading-stock-on-inside-information</a>/.](/nw/images/icon_footnoteCall.png)
It is one of the areas clearly
highlighted by the United Nations Convention against Corruption,
![(21)
Technical Guide to
the United Nations Convention against Corruption, Article 8.II.2.](/nw/images/icon_footnoteCall.png)
OECD
![(22)
See, for example, “Trust
in Government”, OECD, 2000, pp. 28-35.](/nw/images/icon_footnoteCall.png)
studies
and has been identified as an issue to be explored in the question
set being used in the fourth round of the GRECO review process.
4.7. Threshold for registering
gifts and similar benefits
31. Many constituents wish to express their thanks to
legislators and often provide token hospitality or gifts, such as
a cup of coffee, an inexpensive lunch, pens, books, bottles of wine
and sometimes even a basket of fruit from a farmer. The problem
arises when the gift goes beyond being a “token”. Paragraph [25]
attempts to address this by providing a
de
minimus value to distinguish a courtesy gift from one
that is inappropriate. This avoids complaints about the trivial
gift of a croissant and tea at the local café.
![(23)
The
Telegraph reported that some members of the United Kingdom
House of Commons had registered jars of honey or bunches of flowers.](/nw/images/icon_footnoteCall.png)
32. Assembly members will be required to register all accepted
gifts and similar benefits which exceed a minimum fixed amount.
Such thresholds for registration can be fixed in various ways. Some
parliaments provide for a fixed amount,
![(24)
1 500 Rand (approximately
147 euros), Code of conduct for Assembly and Permanent Council members,
South Africa; AUD 750 (approximately 585 euros) if given by official
government source, and AUD 300 (approximately 234 euros) if given
by a private person or non-governmental body, the Senate of Australia;
Members of the European Parliament should refrain from any gift
whose approximate value exceeds 150 euros, Article 5 of the Code
of Conduct.](/nw/images/icon_footnoteCall.png)
others determine it in relation to
a parliamentarian’s monthly wage
![(25)
Exceeding £ 570, namely
1% of the salary of a member of the Scottish Parliament.](/nw/images/icon_footnoteCall.png)
or
in connection with an average national wage.
![(26)
Exceeding an average
monthly salary according to the Croatian Act on preventing of a
conflict of interest in exercise of public duties (approximately
725 euros, source: croatiatime.com).](/nw/images/icon_footnoteCall.png)
As far as
the Assembly is concerned, it would be difficult to calculate an
average authorised amount for 47 Council of Europe parliaments,
taking into consideration that some parliaments do not fix any threshold
whereas other countries provide for an amount that goes beyond an average
wage in some member States. The rapporteur’s guiding consideration
in setting a threshold at 200 euros was that a courtesy has still
to be expressed without being seen as excessive by the average European citizen.
In addition, to avoid any allegation of influence or corruption,
the obligation to register all gifts, entertainment, meals, accommodation,
etc. exceeding 200 euros would allow members to refer to a registration requirement
to refuse such gifts or similar benefits in countries having a strong
tradition of hospitality. The threshold is also consistent with
limitations existing within the Council of Europe requiring staff
members not to accept gifts of a value exceeding 100 euros.
![(27)
Rule No. 1296 of 18
December 2008 on the acceptance of fees, gifts, decorations or honours,
invitations and other advantages from third parties.](/nw/images/icon_footnoteCall.png)
4.8. Misuse of resources
33. Misuse of Assembly resources is addressed in paragraph
[22]. Serving the public is a privilege, and members must not misuse
the financial or any other support given to them because of their
office.
![(28)
Principles
of Deputies Ethics, Poland, Article 3, and the code of conduct for
members of Dail Eireann, Article 9, address the misuse of expenses,
facilities and services, etc.](/nw/images/icon_footnoteCall.png)
Only three years
ago, newspapers in the United Kingdom revealed large-scale abuses
in the way parliamentarians used their public expense accounts.
As a result, the rules have been tightened and the authorities require transparency
in all payments to legislators through publication on a website.
![(29)
<a href='http://www.public-standards.gov.uk/OurWork/MPs__Expenses_and_Allowances_x.html'>www.public-standards.gov.uk/OurWork/MPs__Expenses_and_Allowances_x.html.</a>](/nw/images/icon_footnoteCall.png)
Other parliaments make information
regarding MPs’ fees and allowances available on request.
![(30)
The Eduskunta of Finland.](/nw/images/icon_footnoteCall.png)
4.9. Former members
34. Paragraph [23] addresses one of the most difficult
problems confronting legislators: how do you balance the rightful
prerogatives of former Assembly members with the risk of abuse of
the special access granted to them for private financial benefit?
This section will address two issues which arise in respect of former Assembly
members: restrictions in post-member activity and access to documents
and Assembly premises.
4.9.1. Post-member restrictions
35. Given their familiarity with members and procedures,
former Assembly members may be prime candidates to be hired by lobbying
firms or to create such firms themselves. It is neither practical
nor reasonable for the Assembly to have the power to prevent them
from making a livelihood or taking a job.
36. Although relatively new to Council of Europe member States,
post-member restrictions are being passed or considered in many
European countries as part of a general concern to avoid the abuse
of power by former legislators. An OECD study examined the various
national approaches to post-employment among OECD countries.
![(31)
OECD, Public Post-Employment:
Good Practices for Preventing Conflicts of Interest.](/nw/images/icon_footnoteCall.png)
The
measures generally take the form of cooling-off periods restricting
either contact or representation with members of parliament. These
periods of non-contact or non-representation can be one to a few
years, and in the United States for a limited number of persons
it can be a lifetime bar.
![(32)
See
18 USC 207, and accompanying regulations. Furthermore, according
to the United Kingdom Ministerial Code, 7.25, ministers who leave
office are prohibited from lobbying government for two years.](/nw/images/icon_footnoteCall.png)
37. In the rapporteur’s view, it would not be necessary to impose,
at least at this stage, such restrictions on former Assembly members.
Even though some are now officially involved in lobbying activities,
the scale of the issue does not seem to call for such restrictions.
However, to create a level playing field, the former members should
not have any prerogative in terms of access to documents and facilities
compared to other lobbyists from outside.
4.9.2. Access to documents
and facilities by former members
38. Most European parliaments allow former members privileges
that include complete access to legislative facilities. However,
some European and North American legislatures have experienced very
embarrassing political scandals because of such unfettered access
by former members. The United Kingdom House of Commons addressed
this in the mid-1990s by introducing rules to cover lobbying by
members, their family, journalists and staff.
![(33)
OECD, op. cit., pp.
74-75.](/nw/images/icon_footnoteCall.png)
It is currently discussing how to address
the problem of former members taking advantage of their unlimited
access.
![(34)
A recent
exposé by the Bureau of Investigative Journalism found that “one
in five of the 79 [UK] MPs who have applied for Former Members'
Passes after the 2010 election now work for companies or organisations
with a possible interest in influencing present MPs. Several have
worked for lobbying firms. There are 326 former MPs who hold Former Members'
Passes, allowing them access to informally meet MPs, bring guests
into the House of Commons and book restaurants with family in the
Palace of Westminster”, “Lobbying: calls for transparency over former
MPs' access to Parliament”, The Independent, 15
December 2011, p. 1.](/nw/images/icon_footnoteCall.png)
39. The current Assembly Rules provide special prerogatives for
honorary associates and Honorary Presidents of the Assembly. In
particular, honorary associates, that is members who have been Assembly members
for more than five years or who held a committee or a political
group chairmanship or former Presidents and Vice-Presidents of the
Assembly, have access to the same Assembly premises, including the Assembly
Chamber, as current Assembly members, with the exception of committee
meeting rooms when in session.
![(35)
Special Rules on Honorary
Association with the Parliamentary Assembly. See also Special Rules
on the Titles and Prerogatives of Honorary President of the Parliamentary
Assembly of the Council of Europe, paragraph 2.](/nw/images/icon_footnoteCall.png)
Honorary
associates may also be included on the mailing list for official
Assembly documents and for some non-confidential committee documents.
40. The rapporteur suggests that, should any former members be
invited, formally or informally, to foster any interests within
the Assembly, he or she should be denied these prerogatives for
the period of such activity. He or she will, however, continue to
be granted access to the Palais de l’Europe and to Assembly documents under
the same rules as other lobbyists. Consequently, the Bureau of the
Assembly is invited to amend the special rules on honorary association
with the Parliamentary Assembly and the special rules on the title
and prerogatives of honorary President of the Parliamentary Assembly
of the Council of Europe accordingly.
5. Access to facilities
during Parliamentary Assembly sessions by representatives of interest
groups
41. The rapporteur notes that, even though this issue
is not dealt with by the draft code of conduct for Assembly members,
it has to be examined to address one of the concerns raised by the
motion “Strengthening the mechanism for the disclosure of conflicts
of interest in the Parliamentary Assembly of the Council of Europe”.
For the purpose of this chapter, the rapporteur examined standards
created by the OECD,
![(36)
OECD,
Lobbyists, Government and Public Trust, Vol. 1: increasing Transparency
through Legislation.](/nw/images/icon_footnoteCall.png)
current legislations in
Council of Europe member States as well as guidelines used by other
countries.
![(37)
For
a more complete overview of the question, see Assembly Recommendation 1908 (2010) and the report of the former Committee on Economic Affairs
and Development on lobbying in a democratic society (European code
of good conduct on lobbying)” (Doc. 11937), rapporteur: Mr José Mendes Bota (Portugal, EPP/CD).](/nw/images/icon_footnoteCall.png)
42. As a result, the rapporteur came to the conclusion that, with
particular regard to the way the Assembly operates, there is no
need, at least for the moment, to define what professional lobbyists
are and to distinguish them from other categories of individuals
who have any personal or pecuniary interests in fostering their
cause with the Assembly.
43. Most modern parliaments are moving in the direction of controlling
the effects of outside influence, recognising that abuses can occur.
A recent survey claimed that “about 80% of all amendments launched”
in European Parliament committees stemmed directly from interest
representatives and “the inspiration behind 20% often came from
outside Parliament”.
![(38)
Lobbying
the European Parliament: A necessary evil, Maja Kluger Rasmussen,
No. 242, May 2011, CEPS.](/nw/images/icon_footnoteCall.png)
When confronted with
technical, complex or urgent issues, parliamentarians and their
assistants often rely on information provided by interest groups.
In the case of the Assembly, it could also involve the drafting
of reports, in whole or in part, as well as the drafting of motions
and amendments by outside representatives. Similar concerns were
expressed by stakeholders during the discussion on a new code of
conduct for members of the European Parliament when the issue of
a “legislative footprint”
![(39)
“An
indicative list … of registered interest representatives who were
consulted, and had significant input, during the preparation of
the report”.](/nw/images/icon_footnoteCall.png)
was debated. Such a “legislative
footprint” would require that everyone who provided any input into the
drafting of a given document be cited,
![(40)
<a href='http://www.regardscitoyens.org/transparence-france/etude-lobbying/'>www.regardscitoyens.org/transparence-france/etude-lobbying/.</a>](/nw/images/icon_footnoteCall.png)
thus contributing to the goal the
transparency register has been trying to achieve. However, this
idea met with opposition from MEPs who wanted to protect their sources
of information.
44. Many of these abuses could involve access to inside knowledge
and to buildings and facilities. Currently, interest group representatives
have little or no difficulty in accessing spaces which are reserved
only for members of the Parliamentary Assembly or its staff, such
as the Parliamentary Bar, the Table Office and delegation offices
situated on the upper floor.
45. Good professionals know where each member’s office is, they
know the paths they take to sittings, where meetings will be held
and where to get documents. This creates risks that can negatively
impact the work and reputation of the Assembly. On the other hand,
access and transparency are critical to the democratic process and
have to be protected. Some have argued that transparency of those
who lobby legislators is a basic right of citizens.
![(41)
See Henri Brun and
Guy Tremblay, “Le droit du public de savoir qui cherche à influencer
le gouvernement: un droit fondamental”, Ethique publique, 8 (2006)
1, pp. 123-136.](/nw/images/icon_footnoteCall.png)
46. Although transparency and openness are necessary to maintain
the public’s confidence in their democratic institutions, it is
also important for legislators to have private space to function.
Private spaces in legislative facilities (the floor of parliaments,
certain meeting rooms, delegation offices) allow them to have informal
discussions with colleagues before drafting relevant documents or
to allow the members to decide how they want to control their time
for meetings with constituents or interest group representatives.
Lack of space to privately confer without the presence of interest
representatives or media is an impediment to the effective and timely
work of parliaments.
47. As far as the Assembly is concerned, the current rules appear
to allow relatively broad access to the Assembly’s facilities. Some
individuals already have their badges (for example representatives
of international NGOs having participatory status with the Council
of Europe), or are granted visitor badges upon request from a member
of the Assembly, the Secretary General of the Assembly or secretariat
staff,
![(42)
These
considerations, as well as the analysis below, concern access to
the Palais de l’Europe during Parliamentary Assembly sessions. No
access authorisation is required to attend meetings of the Standing
Committee of the Parliamentary Assembly.](/nw/images/icon_footnoteCall.png)
thus
allowing most interest group representatives to gain access with
little difficulty to both the public and the restricted areas of the
Palais de l’Europe.
48. Most countries respond to the desire of individual citizens
to see the work of the legislature by providing guided, limited
tours of buildings. But the public are often isolated in visitors’
galleries; in other words they are not allowed on the floor or in
rooms with access to the floor where the legislators’ business is
being discussed.
![(43)
According
to Rule 22.2 individuals can be admitted to the galleries following
the authorisation of the Secretary General of the Parliamentary
Assembly.](/nw/images/icon_footnoteCall.png)
The majority of parliaments have rules
allowing a person to enter at the invitation of a staff member or
a member of parliament, though for a limited period of time and
provided the person is accompanied by a staff member or a parliamentarian
throughout his or her stay in the parliamentary building. The European Parliament
and the Sejm of Poland, which grant a more flexible access to registered
interest representatives, nevertheless impose restrictions concerning
the accessible areas.
![(44)
The
one European country that has detailed rules on access to facilities
by registered lobbyists is Poland. Article 201b, paragraph 2, of
the Standing Order of the Sejm provides: “A temporary pass shall
be issued for a definite period of time and shall authorize the
holder to use a particular entrance and to move about indicated
areas administered by the Chancellery of the Sejm.”](/nw/images/icon_footnoteCall.png)
49. In the rapporteur’s view, the Assembly has to follow the general
trend which aims to make institutional functioning more transparent
and, at the same time, to strengthen members’ accountability and
responsibility with regard to those to whom they extend an invitation.
50. The Bureau has to consider reviewing the current rules governing
access to the Palais de l’Europe and the use of the premises, taking
into account the above-mentioned considerations and the following
points: a possibility of introducing special badges for special
interest representatives, granting a clear separation between public
and restricted areas and ensuring the effective implementation of
the revised access rules by security agents and staff members.
51. The proposed revision seeks to bring more transparency and
efficiency and to streamline the operation of the Assembly. It aims
neither to restrict parliamentarians’ right to receive information
from interest representatives nor to shut the door to those willing
to make their viewpoint known. Furthermore, the rapporteur is fully
aware that no detailed rules or formal declarations, including easily
identifiable badges for interest representatives or members’ declaration
on absence of conflict of interests, would constitute a sufficient safeguard
against those who choose to contravene the spirit of those rules.
6. Enforcement mechanism
52. Society at large – citizens, interest groups and
the media – is increasingly vocal about the need for stronger monitoring
of parliamentarians’ integrity.
53. Many national legislations grant members of parliaments an
element of special immunity enabling them to avoid criminal and
civil liability when exercising their parliamentary functions or
even when acting as “simple citizens”. The scope and the nature
of such immunities, which were originally set up to grant parliaments independence
vis-à-vis the executive, are the result of the cultural, historical
and constitutional context of a given country. Nowadays, demands
are made to open parliaments to more scrutiny by,
inter alia, reducing the scope of
immunities and providing safeguards against abuse of privileges.
![(45)
More information on
parliamentary immunity regimes in national parliaments could be
found in the 2003 report by the Committee on Rules of Procedure
and Immunities on “Immunities of Members of the Parliamentary Assembly”
(Doc. 9718 rev), in particular in paragraphs 92 to 98. Furthermore,
some countries provide a possibility for constituencies (Uganda)
or a party (Guyana) to recall a non-performing elected representative.
Six cantons in Switzerland allow this right. Other countries have
recently envisaged introducing similar mechanisms to reinforce accountability
of elected representatives.](/nw/images/icon_footnoteCall.png)
As a response to
these demands, several parliaments have set up mechanisms enabling
them to hold their members accountable, including for breaches of
internal regulations such as codes of conduct.
54. The draft code of conduct suggests introducing an enforcement
mechanism to ensure compliance with the rules of conduct which is
based on three components: prevention, investigation and imposing
of sanctions.
55. The prevention stage includes information and guidance. For
a number of reasons, guidance is an important part of any workable
code of conduct. First, it sets a positive tone by underlining the
expectation that all members are honest and want to act in an ethical
manner. Motivated by integrity, any member would seek guidance if
they have questions about the application of the code. This is likely
to reduce the number of breaches. Second, no code can be truly exhaustive
and therefore responsible individuals will want guidance on matters
not specifically or directly covered in the code. Third, language
in the code might have different connotations to different people,
for example in what constitutes a “gift”. And finally, because the
Assembly represents a number of different countries, with different
political cultures and different languages, members should have
the opportunity to clarify issues to avoid illicit actions resulting
from misinterpretation.
56. Paragraph [15] of the draft code of conduct enables the Secretary
General of the Parliamentary Assembly to provide guidance as a neutral
third party. Similar provisions can be found in other codes of conduct
allowing guiding advice to be provided by an independent body,
![(46)
The Parliamentary Commissioner
for Standards of the United Kingdom House of Commons.](/nw/images/icon_footnoteCall.png)
a
legal department of a given parliament
![(47)
Relevant Secretariat
services of the Denmark Folketing or the German Bundestag provide
assistance and information on behalf of the President.](/nw/images/icon_footnoteCall.png)
or
by a Secretary General or his Deputy.
![(48)
Eduskunta of Finland.](/nw/images/icon_footnoteCall.png)
The
rapporteur deems it necessary to add an information session on the
code of conduct to workshops the Secretariat of the Parliamentary
Assembly organises for new Assembly members.
![(49)
In the United Kingdom
House of Commons the Parliamentary Commissioner for Standards and
the Registrar of Members' Financial Interests are available to give
advice, information sessions on the code of conduct are organised
and the code is available to members in pocket book format.](/nw/images/icon_footnoteCall.png)
57. The investigation
procedures
set up by national parliaments vary from an enquiry by an independent body,
![(50)
The Parliamentary Commissioner
for Standards of the United Kingdom House of Commons; the Déontologue
of the French National Assembly.](/nw/images/icon_footnoteCall.png)
by the President
of the Parliament,
![(51)
The
German Bundestag, Section 8 of the Code of Conduct.](/nw/images/icon_footnoteCall.png)
by
a relevant parliamentary committee
ex
officio or following a complaint, even if filed anonymously.
![(52)
Croatia, “Act on preventing
of the conflict of interest in exercise of public office”, Article
18(2).](/nw/images/icon_footnoteCall.png)
At this stage, additional information
can be sought directly from the member concerned or from any relevant
body or officials.
![(53)
For
instance, a chairperson of a national delegation concerned could
be asked to provide further information.](/nw/images/icon_footnoteCall.png)
58. In the rapporteur’s view, the procedure suggested by the draft
code meets the spirit of the current Rules of Procedure and is consistent
with existing policies. According to the Rules of Procedure, the
President of the Assembly is generally responsible for the smooth
running of Assembly business, which is why it would be reasonable
in the first instance for the President of the Assembly to investigate
a member’s alleged misconduct. In several parliaments, the supervision
of members’ conduct
remains
with their presidents,
![(54)
German
Bundestag, op. cit.](/nw/images/icon_footnoteCall.png)
who may require help from
other parliamentary bodies and committees
![(55)
Advisory Committee
of the European Parliament, the Deputies’ Ethics Committee of the
Sejm of Poland.](/nw/images/icon_footnoteCall.png)
or a political group
![(56)
German Bundestag, op.
cit.](/nw/images/icon_footnoteCall.png)
to clarify the matter.
59. While investigating, the President of the Assembly should
be allowed to seek relevant information and clarification from the
chairperson of the member’s national delegation, a chairperson of
the committee concerned or the chairperson of the member’s political
group. The latter would be particularly relevant if an alleged breach
has taken place in the context of the observation of elections since
members of election observation missions are appointed by their
respective political groups.
![(57)
It
would also be relevant for any ad hoc committee of the Bureau whose
members are usually appointed by political groups.](/nw/images/icon_footnoteCall.png)
60. Furthermore, the President of the Assembly should also have
the possibility to seek a recommendation from the Rules Committee.
Given its composition and terms of reference, being responsible
for examining any request for waiver of immunities or challenge
of credentials – procedures in which an investigative hearing is held
–, the Rules Committee is well placed to collect the necessary data,
organise a fair hearing and evaluate facts in the light of precedents.
61. Most parliaments can sanction their members if their conduct
is found to be inappropriate. Sanctions imposed by peers instead
of an independent authority might sometimes be seen by the public
as lacking impartiality. However, any assessment of alleged misconduct
by a parliamentarian would require an understanding of the specific
functioning of a political body, including interactions this body
may have with representatives of interest groups. For these reasons,
even though in some parliaments the investigation stage is a matter
for an independent authority,
![(58)
If
a complaint for breach of conduct is brought against a member of
the United Kingdom House of Commons, the Parliamentary Commissioner
for Standards, an independent authority, has discretionary competence
to order further inquiry, after having examined the evidence provided.
Should a breach be established following the inquiry, the Commissioner
could resolve the matter himself. In serious cases or at a member’s
request, a report by the Commissioner is referred to the Committee
on Standards and Privileges of the House of Commons, which comes
to its own conclusions. If a sanction has to be proposed, it is
considered a matter for the House of Commons.](/nw/images/icon_footnoteCall.png)
subsequent
sanctions are often imposed by special committees composed totally
![(59)
The Rules and Deputies’
Affairs Committee of the Sejm of Poland.](/nw/images/icon_footnoteCall.png)
or partly
![(60)
Croatia, “Act on preventing
of the conflict of interest in exercise of public office”, Article
16.](/nw/images/icon_footnoteCall.png)
of parliamentarians, or by the assembly acting
as a whole. The majority of sanctions available to parliaments date
back to the time when the main concern of internal regulations, including
the Assembly’s Rules of Procedure, was the smooth conduct of sittings
and maintenance of order in the Chamber, hence sanctions such as
call to order or exclusion from the Chamber. Over time, new penalties have
been introduced, such as reprimand or forfeiture of entitlement
to the daily allowance, including for misconduct which might have
happened outside the Chamber.
![(61)
For
instance, a failure to declare expenses or relevant interests.](/nw/images/icon_footnoteCall.png)
62. The code of conduct has to be flexible enough to deal with
new situations which may arise or to give proper consideration to
a standard case which may require special interpretation in view
of specific circumstances. The rapporteur suggests adopting the
same flexible approach when it comes to imposing sanctions. The
President of the Assembly needs to have discretion regarding the
follow-up to be given to an enquiry’s findings.
63. The range of sanctions available to the President of the Assembly
should not differ from those imposed in the majority of national
parliaments or the European Parliament:
![(62)
The European Parliament’s
penalties include a reprimand, the forfeiture of the entitlement
to the daily subsistence allowance or a temporary suspension from
participation in all or some of the activities of Parliament. Penalties
are imposed by the President and could be appealed against to the
Bureau (Rules 153 and 154). In cases of serious misconduct, the
Rules allow for the termination of the member’s office by the Conference
of the President (Rule 19).](/nw/images/icon_footnoteCall.png)
reprimand or admonition,
an apology or expulsion of the member concerned from the sittings
by the way of motion for censure, a letter to the speaker of the
parliament concerned or public disclosure of the circumstances of
a case.
64. As regards the latter sanction, it should be up to the President
of the Assembly to decide if an enquiry’s findings and the penalties
applied are to be made public. A minor breach, followed even by
a minor sanction, if made public, might have a serious impact on
a member’s political career or his or her image within the national
delegation. In some cases, if taken up by local newspapers, it could
lead to a loss of trust of a member’s electorate in their candidate
and, as a consequence, an eventual removal from office at the next elections.
The President’s discretion over the publicity of a case could also
provide for a safeguard against the misuse of the mechanism by those
members who would explicitly seek more publicity for their actions.