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A. Draft
resolution
(open)
Report | Doc. 13000 | 31 July 2012
Code of conduct of members of the Parliamentary Assembly: good practice or a core duty?
Committee on Rules of Procedure, Immunities and Institutional Affairs
Summary
In order to provide members of the Parliamentary Assembly with a transparent and consistent reference framework, in particular with regard to situations of conflict of interest, offers of gifts or hospitality, or the use of office – or former members’ prerogatives – to promote and safeguard personal interests, the Committee on Rules of Procedure, Immunities and Institutional Affairs proposes that the Assembly adopt a code of conduct which all members will undertake to respect in the performance of their duties.
These new ethical rules, which supplement the existing regulations, aim to promote the principles of transparency, accountability, integrity and primacy of the public interest, which are essential in maintaining public confidence in the parliamentary institution and elected representatives.
A. Draft
resolution 
(open)1. On several occasions in recent years, the Parliamentary
Assembly has expressed concern about criticism of representative
democracy and of the institution of parliament, about citizens’
disaffection with politics and democratic procedures, and about
the public’s loss of confidence in the effectiveness of elected assemblies
and the integrity of members of parliament. In Resolution 1547 (2007)
on the state of human rights and democracy in Europe and Resolution
1746 (2010) “Democracy in Europe: crises and perspectives”, the Assembly
sought to elucidate this “crisis of democracy”, which has been intensified
by the financial and economic crisis.
2. Scandals involving misconduct by parliamentarians at both
national and European level have increased the need for politicians
to behave in an exemplary manner and have led national parliaments
and European parliamentary institutions to draw up rules of conduct.
In this context, the Assembly has sought to improve its institutional
framework so as to promote the principles of transparency, accountability
and integrity by which it sets great store.
3. The Assembly has therefore drawn up rules which are aimed
at preventing conflicts of interest, cronyism and, in general, any
form of corruption to which members might be exposed during their
term of office, while taking account of the objectives and specific
nature of the duties assigned to them. As a result, principles regarding
transparency and the declaration of interests of Assembly members
were adopted in 2007, a code of conduct for rapporteurs of the Parliamentary
Assembly was adopted in 2011, and specific provisions in the guidelines
on the observation of elections by the Parliamentary Assembly were
drawn up. The Assembly now considers it necessary to establish principles
and rules governing the conduct of all its members and to adopt a
transparent and effective reference framework. This code of conduct
is not intended to replace the aforementioned rules of conduct,
which supplement it.
4. The need to consolidate the rules of conduct applicable to
members also derives from the Parliamentary Assembly’s duty to set
an example as a statutory body of an international organisation
which is at the forefront of the fight against corruption, including
in the field of politics. The Assembly particularly welcomes the
work carried out by the Council of Europe’s Group of States against
Corruption (GRECO), whose activities it intends to follow closely
in the context of its third evaluation round concerning the transparency
of political party funding and its fourth evaluation round, launched
in January 2012, notably concerning the prevention of corruption
in respect of members of parliament.
5. By adopting a code of conduct, the Assembly intends to guarantee
the primacy of public interest in its work and, through the establishment
of a system of consistent rules applicable to all its members, to
respond to general concerns arising with regard to political favouritism,
offers of gifts or hospitality to members, situations of conflict
of interest, or the use of members’ mandates to promote or safeguard
personal interests.
6. The code of conduct contains provisions essential for the
proper functioning of an assembly of elected representatives in
a democratic society and with which members are asked to comply
in the performance of their Parliamentary Assembly mandates. The
general principles, which form an integral part of the code of conduct,
are intended to guide members of the Assembly as to the attitude
they should adopt when difficult and confusing situations arise.
7. Members’ conduct is first and foremost a matter of personal
belief and conviction; however, their behaviour has to meet the
expectations of those who placed their confidence in an elected
representative. The Assembly considers that the declared commitment
to abide by the code of conduct depends from the outset on members’
willingness to comply with it, in good faith.
8. The Assembly wishes to introduce greater transparency in its
activities and decision-making process. It is, however, concerned
at the pressure that some interest representatives, acting on behalf
of private entities or States, have exercised on members, even within
the Palais de l'Europe. The Assembly firmly supports a pluralist
culture, but also considers that clear and transparent procedures
should be introduced to regulate interest representatives’ access
to the Assembly. In this context, it recalls its Recommendation
1908 (2010) on lobbying in a democratic society.
9. In view of the above considerations, the Assembly:
9.1. decides to introduce the code
of conduct for members of the Parliamentary Assembly appended hereto,
and consequently:
9.1.1. amends Rule
12 of its Rules of Procedure as follows:
“Rule 12 – Code of conduct for members of the Assembly
12.1. In the exercise of their duties, the members of the Assembly shall undertake to comply with the principles and rules set out in the code of conduct for members of the Assembly, appended to these Rules of Procedure as a complementary text.
12.2. The provisions governing transparency and declarations of interest by members of the Assembly are appended to these Rules of Procedure as a complementary text.”;
9.1.2. decides that these new rules and complementary texts shall
come into force as soon they have been adopted;
9.2. with regard to the rules on access to and movement within
Council of Europe premises by interest representatives during Parliamentary
Assembly sessions, and with a view to clearly identifying members of
interest groups, instructs the Bureau of the Assembly to revise
the rules governing access to the Palais de l’Europe and the use
of the premises, and the appendices to the rules in question;
9.3. with regard to the prerogatives of former members of the
Assembly, instructs the Bureau of the Assembly 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, pursuant
to paragraph [27] of the appended code of conduct.
10. The Assembly also invites the national parliaments of Council
of Europe member States to:
10.1. co-operate
with GRECO in the context of the third and fourth evaluation rounds
and to continue to promote anti-corruption strategies;
10.2. draw on the provisions of the appended code of conduct
in respect of all current ethical rules and rules of conduct concerning
their members or in respect of any rules they may need to develop.
11. Lastly, the Assembly instructs its Bureau to review the guidelines
for the observation of elections by the Parliamentary Assembly in
the light of the provisions of the appended code of conduct, with
a view to amending the provisions concerning conflict of interest
and clarifying the declaratory requirements incumbent on members
of ad hoc committees.
Appendix – Code of conduct for members of the Parliamentary Assembly of the Council of Europe
Purpose of the code of conduct
12. The purpose of the code is to provide a framework
of reference for members of the Parliamentary Assembly of the Council
of Europe in the discharge of their duties. It outlines general
principles of behaviour which the Assembly expects of its members.
By adhering to these standards members can maintain and strengthen
the openness and accountability necessary for trust and confidence
in the Parliamentary Assembly.
Scope of the code of conduct
13. The code applies to members in all aspects of their
public life relevant to their duties as members of the Parliamentary
Assembly.
14. The code complements the obligations on members of the Parliamentary
Assembly, to abide by the Rules of conduct, as well as resolutions
of the Assembly and decisions of the President relating to members’ conduct
and discipline.
15. The application of this code shall be a matter for the Assembly.
Guidance on all matters covered by this code of conduct and situations
which may arise from its application may be sought from the Secretary
General of the Parliamentary Assembly.
General principles of behaviour
16. While performing their mandate as members of the
Parliamentary Assembly, members shall:
16.1. carry out their duties responsibly with integrity and
honesty;
16.2. take decisions solely in the public interest, without
being bound by any instructions that would jeopardise members' ability
to respect the present code;
16.3. not act in such a way as to bring the Assembly into disrepute
or tarnish the Assembly's image;
16.4. use the resources available to them responsibly;
16.5. not use their public office for their, or anyone else’s,
private gain;
16.6. declare any relevant interests relating to their public
duties and take steps to resolve any conflicts arising in a way
that protects the public interest;
16.7. promote and support these principles by leadership and
example;
16.8. undertake to comply with the Rules of conduct hereafter.
17. These principles will be taken into consideration when any
complaint is received of breaches of this code of conduct.
Rules of conduct
18. Members shall respect the values of the Council of
Europe and the general principles of behaviour of the Assembly and
not take any action which would cause damage to the reputation and
integrity of the Assembly or its members.
19. Members shall avoid conflicts between any actual or potential
economic, commercial, financial or other interests on a professional,
personal or family level on the one hand, and the public interest
in the work of the Assembly on the other, by resolving any conflict
in favour of public interest; if the member is unable to avoid such
a conflict of interest, it shall be disclosed.
20. Members shall draw attention to any relevant interest by an
oral declaration in any proceedings of the Assembly or its committees,
or in any relevant communications.
21. No member shall act as a paid advocate in any work of the
Assembly.
22. Members shall not request or accept any fee, compensation
or reward intended to affect his or her conduct as a member, which
includes, inter alia, supporting
or opposing any motion, report, amendment, written declaration,
recommendation, resolution or opinion. Members shall avoid any situation
that could appear to be a conflict of interest or receiving an inappropriate
payment or gift.
23. Members shall not use their position as a member of the Parliamentary
Assembly to further their own or another person’s or entity's interests
in a manner incompatible with the code of conduct.
24. Members shall use information with discretion, and in particular
shall not make personal use of information acquired confidentially
in the course of their duties.
25. Members shall register with the Secretariat of the Assembly
any gifts or similar benefits (such as travel, accommodation, subsistence,
meals or entertainment expenses) of a value in excess of 200 euros
that they accept in the performance of their duties as Assembly
members.
26. Members shall ensure that their use of expenses, allowances,
facilities and services provided by the Council of Europe is strictly
in accordance with the relevant regulations laid down on these matters.
27. Former members of the Parliamentary Assembly involved in representing
and fostering another person’s or entity's interests in the Parliamentary
Assembly, shall not, throughout the period of such activity, benefit
from the prerogatives of the honorary associates or the Honorary
President of the Parliamentary Assembly as far as the distribution
of documents and the access to the buildings and meetings room are
concerned.
Observance of the code of conduct
28. If a member is believed to have acted in breach of
the code of conduct, the President of the Assembly may seek clarification
and further information from the member concerned, the chairperson
of the member’s national delegation, the chairperson of the member’s
political group or the chairperson of the member’s committee.
29. If necessary, the President of the Assembly may seize the
Committee on Rules of Procedure, Immunities and Institutional Affairs
to examine the circumstances of the alleged breach and make a recommendation
as to a possible decision to be taken by the President.
30. Should the President of the Assembly decide that the member
failed to comply with the code of conduct, the President of the
Assembly may prepare a reasoned statement to be read out in the
Assembly if need be.
31. Members shall co-operate, at all stages, with any investigation
into their conduct by or under the authority of the Assembly.
B. Explanatory memorandum by Mr Heald, rapporteur
(open)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.
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 calling for the
rules on access to the Palais de l’Europe, the main building of
the Council of Europe, to be strengthened.
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 and
on 24 January 2012 in Strasbourg. The rapporteur would like to warmly
thank all the participants whose input contributed to the drafting
of this report.
and
on 24 January 2012 in Strasbourg. 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. 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.
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.
12. The rapporteur wishes to emphasise that the effectiveness
of the code of conduct will depend on members’ will to comply with
those standards, 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.
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 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.
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.
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.
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. 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.
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.
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. These
systems include disclosure of finances or interests, an ethics counselling
system for members and regular ethics training.
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. 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.
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”.
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. 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.
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. 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. 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. It is one of the areas clearly
highlighted by the United Nations Convention against Corruption, OECD 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.
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. It is one of the areas clearly
highlighted by the United Nations Convention against Corruption, OECD 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.
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, others determine it in relation to
a parliamentarian’s monthly wage or
in connection with an average national wage. 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.
others determine it in relation to
a parliamentarian’s monthly wage or
in connection with an average national wage. 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. 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. 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. Other parliaments make information
regarding MPs’ fees and allowances available on request.
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. Other parliaments make information
regarding MPs’ fees and allowances available on request. 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. 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.
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. 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. It is currently discussing how to address
the problem of former members taking advantage of their unlimited
access.
It is currently discussing how to address
the problem of former members taking advantage of their unlimited
access. 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. Honorary
associates may also be included on the mailing list for official
Assembly documents and for some non-confidential committee documents.
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, current legislations in
Council of Europe member States as well as guidelines used by other
countries.
current legislations in
Council of Europe member States as well as guidelines used by other
countries. 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”. 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” was debated. Such a “legislative
footprint” would require that everyone who provided any input into the
drafting of a given document be cited, 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.
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” was debated. Such a “legislative
footprint” would require that everyone who provided any input into the
drafting of a given document be cited, 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.
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, 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.
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. 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.
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. 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. 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.
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, a
legal department of a given parliament or
by a Secretary General or his Deputy. 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.
a
legal department of a given parliament or
by a Secretary General or his Deputy. 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. 57. The investigation procedures
set up by national parliaments vary from an enquiry by an independent body, by the President
of the Parliament, by
a relevant parliamentary committee ex
officio or following a complaint, even if filed anonymously. At this stage, additional information
can be sought directly from the member concerned or from any relevant
body or officials.
by the President
of the Parliament, by
a relevant parliamentary committee ex
officio or following a complaint, even if filed anonymously. At this stage, additional information
can be sought directly from the member concerned or from any relevant
body or officials. 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, who may require help from
other parliamentary bodies and committees or a political group to clarify the matter.
who may require help from
other parliamentary bodies and committees or a political group 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.
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, subsequent
sanctions are often imposed by special committees composed totally or partly 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.
subsequent
sanctions are often imposed by special committees composed totally or partly 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. 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: 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.
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.