Report | Doc. 14407 | 28 September 2017

Follow-up to Resolution 1903 (2012): promoting and strengthening transparency, accountability and integrity of Parliamentary Assembly members

Committee on Rules of Procedure, Immunities and Institutional Affairs

Rapporteur : Mr Ian LIDDELL-GRAINGER, United Kingdom, EC

Origin - Reference to committee: Doc. 13885, Reference 4158 of 27 November 2015. 2017 - Fourth part-session

Summary

The allegations of corruption and fostering of interests made against some members and former members of the Parliamentary Assembly have called into question the credibility of the Assembly’s actions and positions. This situation led to rethinking the integrity framework of the Assembly by reaffirming the principles of transparency, accountability, integrity and primacy of the public interest, which are essential in restoring public confidence in the parliamentary institution.

The proposals adopted by the Committee on Rules of Procedure call for a review of the current oversight of the principles of behaviour and rules of conduct incumbent on members of the Assembly. The establishment of a new mechanism will allow impartial examination of alleged breaches of ethical rules and principles, and fair conduct of, and a faster start to, investigations of these allegations. The committee also reviewed the list of sanctions applicable in the event of proven breaches of the Assembly’s ethical standards.

Furthermore, the committee suggests adopting strict rules on access to, and movement within, Council of Europe premises for third parties during Assembly sessions and meetings, establishing a transparency register and taking effective steps to prevent former members involved in paid consultancy and lobbying from benefiting from specific advantages. The harmonisation and review of the rules of conduct of Assembly members take account of the recommendations provided by the Council of Europe’s Group of States against Corruption (GRECO), at the request of the Assembly.

A. Draft resolution

(open)

1. The Parliamentary Assembly, as a statutory body of the Council of Europe, is responsible for promoting the principles of human rights, democracy and the rule of law that form the basis of the Council of Europe and are the common heritage of member States. Yet the universal nature of the subjects debated does not shield the Assembly from public or private interests that seek to influence the independent, impartial and objective exercise of the parliamentary process. The Assembly’s reports on the situation in member States, as well as the conclusions of the Assembly’s election observation missions, have a direct and obvious impact on the image and reputation of the countries concerned, with political and economic consequences, because they appraise the level of respect for human rights and democracy and because they are followed closely by national authorities, political leaders, the media and various sectors of civil society. Lastly, the Assembly’s work on occasionally controversial societal issues, combined with a lack of global rules on lobbying, opens the door to possible undue pressure and opportunities for corruption.

2. The allegations of corruption and fostering of interests recently made against some members or former members of the Assembly have called into question, as never before, the credibility of the Assembly’s actions and positions. Given the risk of lasting damage to the Assembly’s reputation, an overall strategy has been adopted to guard against risks of corruption and highlight any covert practices.

3. As a first step, an independent external investigation body has been set up by the Assembly to carry out a detailed independent inquiry into the allegations of corruption and fostering of interests made against some members or former members of the Assembly. Its terms of reference were ratified by the Assembly in April 2017 and its composition was approved in June. This body, comprising figures of high moral standing in the legal world, has started its work and is expected to report by the end of 2017.

4. The second step has been to establish a sound and coherent integrity framework within the Assembly with guidance from the Group of States against Corruption (GRECO). The Assembly expresses its gratitude to GRECO for the diligence with which it carried out a thorough review of the Assembly’s integrity framework and the set of rules and mechanisms governing the conduct of its members. It welcomes the evaluation report on the Assembly’s Code of Conduct that GRECO adopted on 19 June 2017 and notes the relevance and quality of its recommendations, which have inspired the proposed changes to the rules.

5. The Assembly decides to adopt new rules of conduct and declaratory requirements to prevent corrupting behaviour in the Assembly in the future. It also decides to review current oversight of the principles of behaviour and rules of conduct incumbent on its members, which at present depends solely on the President of the Parliamentary Assembly and which GRECO describes as “excessively discretionary”. The Assembly believes that the establishment of a new mechanism will allow impartial examination of alleged breaches of ethical rules and principles, including those revealed by outside sources, and fair conduct of, and a faster start to, investigations of these allegations. It further decides to review the list of sanctions applicable in the event of proven breaches of the Assembly’s ethical standards.

6. The Assembly also decides, as announced in Resolution 2170 (2017) on promoting integrity in governance to tackle political corruption and as recommended by GRECO, to adopt clear rules on access to, and movement within, Council of Europe premises for third parties during Assembly sessions and meetings, to establish a transparency register and to take effective steps to prevent former members involved in paid consultancy and lobbying from benefiting from specific advantages.

7. Accordingly, the Assembly decides to change oversight of the Code of Conduct for members of the Parliamentary Assembly by replacing the “Observance of the Code of Conduct” section with the following new section:

“1. Implementation of this code is the responsibility of the President of the Assembly, the Committee on Rules of Procedure, Immunities and Institutional Affairs and the Assembly, in accordance with the powers and responsibilities granted to them by the Rules of Procedure and this Code of Conduct.

2. 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. The President of the Assembly may rule on minor breaches of the Code of Conduct if the Committee on Rules of Procedure has not been called upon to consider the same facts.

3. The Committee on Rules of Procedure, Immunities and Institutional Affairs (hereafter “the committee”) shall examine alleged breaches of the Code of Conduct by members of the Assembly brought to its attention by the President of the Assembly or by at least 20 members of the Assembly representing at least five national delegations (using the appropriate investigation request form). It may also start an investigation of its own motion.

4. The committee meets in camera and shall act with due respect for confidentiality:

4.1. if it decides to open an investigation, it shall notify the member concerned and send him or her a copy of the evidence submitted to it in support of the allegations, inform the member of his or her rights and request the member’s preliminary observations;

4.2. it shall hear the member concerned together with any witnesses; the records of these interviews or hearings shall be confidential;

4.3. it shall give the member concerned, at all stages of the proceedings, the opportunity to comment on all the evidence gathered during the investigation in support of the allegations, including evidence that has led to identification of other rules that may have been violated; it may consider any evidence provided by the member concerned and hear any witness proposed by the member concerned who is able to provide evidence relevant to the investigation;

4.4. before finalising its conclusions, it shall give the member the opportunity to comment on the factual parts of the draft report.

5. Members shall co-operate with the committee at all stages of the investigation. They must disclose any information or documents requested.

6. If the committee finds that the allegations have no basis, it will inform the complainants and the member concerned.

7. If the committee finds that there has been a minor violation of the Code of Conduct, owing to negligence for example, it will inform the member concerned and ask him or her to take the necessary steps. The committee shall decide whether the decision shall be published on the Assembly’s website.

8. If the committee finds that there has been a serious breach of the Code of Conduct, it will prepare a report containing all the evidence gathered in the course of the investigation, the observations of the member concerned, and its conclusions. This report will be published on the Assembly’s website. The committee shall decide whether to impose a sanction and determine the appropriate sanction, in accordance with Rule …. [“Measures in the event of non-compliance with the Code of Conduct”].

9. If the committee finds that acts or omissions being investigated could constitute a violation of the criminal law of a member State, it will notify the relevant national authorities. It may decide to suspend the proceedings in the Assembly if it turns out that the national authorities are conducting an investigation into the same facts.”

8. The Assembly further decides to strengthen the duty of integrity, accountability and transparency for its members by:

8.1. adding the following sentence at the end of Rule 6.2.b of the Rules of Procedure: “I declare that I have read and understood the Code of Conduct for Members of the Parliamentary Assembly and I undertake to abide by its provisions”;

8.2. in order to prevent active bribery, amending paragraph 11 of the Code of Conduct for Members of the Parliamentary Assembly, by replacing the words “Members shall not request or accept any fee, compensation or reward” with the words “Members shall not promise, give, request or accept any fee, compensation or reward”;

8.3. adding the following sentence at the end of paragraph 14 of the Code of Conduct for Members of the Parliamentary Assembly: “Gift declaration forms submitted by members shall be published on the Assembly’s website”;

8.4. adding, after the “Rules of conduct” section in the Code of Conduct for Members of the Parliamentary Assembly, the following new section headed “Declarations of interests”: “Members shall be personally responsible for submitting, at the opening of each session of the Parliamentary Assembly, a declaration of interests by means of the appropriate form. The declaration shall be published on the Assembly’s website”, inviting the Committee on Rules of Procedure to determine the content and format of declaratory requirements.

9. The Assembly decides to make provisions related to conflicts of interest more consistent by:

9.1. amending Rule 13 of the Assembly’s Rules of Procedure “Code of conduct for members of the Assembly” as follows: “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 and other ethical regulations, appended to these Rules of Procedure as complementary texts.” [Rule 13.2 is deleted].

9.2. deleting Appendix III of the complementary texts on “Transparency and members' declaration of interest”;

9.3. amending paragraph 1.1.1 of the Code of conduct for rapporteurs of the Parliamentary Assembly as follows: “obligation to declare any economic, commercial, financial or other interests, on a professional, personal or family level, connected with the subject of the report [footnote: All candidates for rapporteurship shall declare any interests which might be considered relevant or conflicting with the subject of the report or with the country concerned by the report at the time of appointment in committee. This declaration shall be recorded in the minutes of the meeting]”;

9.4. amending paragraph 3 of the Code of conduct for rapporteurs of the Parliamentary Assembly as follows: “Penalty for breaching the rules: Should a rapporteur fail to honour one or more undertakings, in particular if he or she failed to declare any relevant interests or made an untruthful declaration, the committee shall withdraw his or her mandate and replace him or her”;

9.5. inviting the Bureau of the Assembly to amend the Guidelines on the observation of elections by the Parliamentary Assembly with a view to harmonising them with the provisions of the Code of Conduct for Members of the Parliamentary Assembly and the Code of Conduct for rapporteurs of the Parliamentary Assembly, in particular with regard to declaratory requirements and the oversight and sanction mechanism.

10. Furthermore, the Assembly decides to review its system of sanctions, by harmonising and expanding the list of potential sanctions by:

10.1. adding, after the “Observance of the Code of Conduct” section in the Code of Conduct for members of the Parliamentary Assembly, the following new section on “Measures in the event of non-compliance with the Code of Conduct”:

“In cases of serious or repetitive breaches of the rules of conduct by a given member, the Committee on Rules of Procedure, Immunities and Institutional Affairs may take one or several of the following measures: temporary deprivation of the right to speak and to be enrolled on the list of speakers; temporary deprivation of the right to sign an amendment, a motion for a resolution or recommendation or a written declaration; temporary deprivation of the right to address questions to the Committee of Ministers; temporary deprivation of the right to be appointed rapporteur or temporary ban on acting as a committee rapporteur; temporary ban on being a member of an ad hoc election observation committee; temporary deprivation of the right to stand as a candidate for President of the Assembly or chairperson or vice-chairperson of a committee or sub-committee; and temporary deprivation of the right of institutional representation of the Assembly and its committees”;

10.2. amending accordingly the reference to the Code of Conduct for members in paragraph 3 of the additional provisions relating to conduct of members of the Parliamentary Assembly during Assembly debates (Rule 22 of the Rules of Procedure).

11. As regards the introduction of a coherent framework to strengthen transparency in relations with extra-institutional actors and prevent any undue influence of public or private interests on the independent, impartial and objective exercise of the parliamentary mandate in the Assembly, the Assembly decides to:

11.1. with regard to the rules on access to and movement within Council of Europe premises during Assembly sessions, instruct the Bureau of the Assembly to revise these rules and the appendices to the rules in question, in order to introduce specific identification of lobbyists, together with a system for reporting improper conduct, and, in this connection, consider establishing a register of lobbyists;

11.2. amend the special rules on honorary association with the Parliamentary Assembly by replacing the last sentence of paragraph 1 by the following: “The honorary associate will be given a diploma mentioning this title”; by deleting paragraphs 2.a and 2.b on the prerogatives of honorary associates; and by replacing paragraph 3 by the following paragraph: “When awarded the title of honorary associate, the former member of the Assembly shall sign a sworn declaration stating that he or she is not involved in representing or fostering another person’s or entity’s interests in the Assembly. The former member shall be stripped of the title if he or she failed to declare any relevant interests or made an untruthful declaration”;

11.3. amend the special rules on the title and prerogatives of Honorary President of the Parliamentary Assembly by replacing the last sentence of paragraph 1 by the following: “The Honorary President will be given a diploma mentioning this title”; by deleting paragraphs 2.b and 2.c; and by replacing paragraph 3 by the following paragraph: “When awarded the title of Honorary President, the former President of the Assembly shall sign a sworn declaration stating that he or she is not involved in representing or fostering another person’s or entity’s interests in the Assembly. The Honorary President shall be stripped of the title if he or she failed to declare any relevant interests or made an untruthful declaration”;

11.4. instruct the Bureau to collect such declarations from existing honorary associates and Honorary Presidents;

11.5. amend the Code of Conduct for rapporteurs of the Parliamentary Assembly by adding a new paragraph 3 as follows: “3. Rules applicable to the publication of sources used in the drafting of the report: The committee can ask the rapporteur, or the rapporteur may decide himself or herself, to publish, in an appendix to the draft report, the list of individuals, experts and representatives of governmental or non-governmental organisations consulted, met or received in the process of drafting the report”.

12. The Assembly decides that the amendments to the Rules of Procedure and complementary texts set out in this resolution shall enter into force upon their adoption. The new provisions on honorary association with the Parliamentary Assembly, as well as on the prerogatives of Honorary President of the Parliamentary Assembly, are applicable as from adoption to all former members of the Assembly who enjoy the status.

13. The Assembly takes note of the GRECO recommendation on guidance, training and awareness-raising for members with regard to the rules of conduct and invites the Committee on Rules of Procedure to foster best practice in fields such as gifts and similar benefits, members’ participation in outside events, members’ travel at the invitation of third parties, etc.

14. Lastly, the Assembly calls on the chairpersons of the political groups to strengthen the integrity frameworks of these groups and in particular to take due account of the GRECO recommendation on review of the political groups’ accounting procedures and submission of annual accounts of all political groups to the External Audit.

B. Explanatory memorandum by Mr Ian Liddell-Grainger, rapporteur

(open)

1. Introduction

1. On 27 November 2015, the Assembly referred to the Committee on Rules of Procedure, Immunities and Institutional Affairs a motion for a resolution, tabled by Mr René Rouquet and other members (Doc. 13885), which inquired into why, notwithstanding the integrity framework of the Assembly, “some members remain in the spotlight of criticism by a number of international human rights organisations and media, which reveal scandalous cases of corruption activities regarding parliamentarians in their capacity of Assembly members”. The authors of the motion therefore took the view that it was necessary to further consolidate the rules of conduct applicable to members.

2. Moreover, by letter of 9 February 2016, the President of the Assembly referred to the committee a claim by Mr Valeriu Ghiletchi, member of the Committee on Social Affairs, Health and Sustainable Development, regarding a potential conflict of interests affecting the committee’s rapporteur on “Human rights and ethical issues related to surrogacy”, Ms Petra De Sutter.

In his letter, the President of the Assembly asked for the issue of application of provisions on conflicts of interest to be clarified in the present report.

3. During an initial exchange of views, on 23 June 2016, the committee also highlighted the question of breaches of the secrecy of the deliberations of in camera committee meetings and asked the rapporteur to assess the existing rules. Lastly, the committee also considered that the report should look at the issue of lobbying and the undue influence of interest representatives on the Assembly’s activities, as well as the conditions of participation of non-governmental organisations (NGOs) in the work of the Assembly and its committees.

4. All the issues raised therefore require a discussion of the current situation with regard to the existing regulatory framework and its implementation. To determine the best approach, on 13 March 2017 the committee held a hearing on implementation mechanisms for the parliamentary integrity framework with the participation of Ms Kathryn Hudson, Parliamentary Commissioner for Standards of the United Kingdom House of Commons, and Ms Chiara Malasomma and Ms Elisabeth Bauer, from the European Parliament’s Transparency Unit and Directorate for Interinstitutional Affairs and Legislative Co-ordination respectively. On 26 April 2017, it also heard Mr Marin Mrčela, President of the Group of States against Corruption (GRECO). Lastly, the members of the Rules Committee were asked to submit their comments on the main amendments proposed by the rapporteur, including the monitoring mechanism. Ten replies (nine from members and one on behalf of a national delegation) were received. Any additional proposals or alternative suggestions made by members have been discussed by the committee and added to the draft resolution, when the committee found them useful.

2. Observations with regard to the current ethical framework at the Parliamentary Assembly

5. Over the last few years the Parliamentary Assembly has adopted several texts to deal with the issue of conflicts of interest, improve institutional frameworks and promote the principles of transparency, accountability and integrity. However, never before throughout its history has the Assembly found itself in such an awkward position where the legitimacy of its actions and positions and its political credibility are called into question.

2.1. Code of Conduct of members of the Parliamentary Assembly (Resolution 1903 (2012))

2.1.1. Relevant provisions

6. In the exercise of their duties, members of the Assembly undertake to comply with the principles and rules set out in the Code of Conduct for members of the Assembly. This is composed of three parts:

a. The general principles of behaviour providing members with guidance in the absence of regulations or when facing new situations that are not addressed by the Code of Conduct.

b. The rules of conduct which are detailed rules, subject to internal adjudication, which cover issues such as paid advocacy; obligation to declare a gift exceeding the value of €200 accepted in the performance of an Assembly member’s duties; possible avoidance of conflicts of interest or, failing that, their declaration; ban on receiving compensation for moving amendments, draft motions and other Assembly documents; prohibition of former Assembly members who become lobbyists from benefiting from the prerogatives of honorary associates as far as the distribution of documents and access to the building and meeting rooms are concerned.

These rules contain a duty of confidentiality that requires members not to make personal use of information acquired confidentially in the course of their duties.

c. An enforcement mechanism that gives the President of the Assembly the leading role in initiating investigations into alleged breaches of the Code of Conduct. The Rules Committee may provide proposals and recommendations relating to matters raised by the President.

This part also lists possible sanctions that may be ordered by the President of the Assembly such as the temporary deprivation of the right to speak or to be enrolled on the list of speakers and the temporary deprivation of the right to sign an amendment, a motion or written declaration. Moreover, should the President of the Assembly decide that a member has failed to comply with the Code of Conduct, he or she may prepare a reasoned statement to be read out in the Assembly if need be and/or inform the Speaker of the national parliament concerned.

7. Finally, the Secretary General of the Assembly has a duty to advise members of the Assembly on the implementation of the provisions of the Code of Conduct, including in cases where personal situations may be considered as potentially leading to a conflict of interest situation.

2.2. Conflict of interest situations

8. Conflict of interest situations are governed by Rules 8 and 9 of the Code of Conduct, which provide:

“8. 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.

9. 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.”

9. They are also mentioned in the provisions governing transparency and members’ declaration of interest (Resolution 1554 (2007))”:

“Article 2

2.1. Before speaking in committee or in plenary session on a subject on which they have a professional, personal, financial or economic interest which might be considered relevant or conflicting, members are encouraged to make ad hoc declarations of interest.

2.2. This not only serves transparency and is relevant for other members; it also makes colleagues and the general public aware of the members’ experience on the subject concerned.”

10. At the same time, specific provisions apply to Assembly rapporteurs. Article 1 of the rules on “Transparency and Members’ Declaration of Interest” (Resolution 1554 (2007)) provides:

“1.1: All candidates for rapporteurship shall make an oral declaration of any professional, personal, financial or economic interests which might be considered relevant or conflicting with the subject of the report or with the country concerned by the report at the time of appointment in committee.”

1.2. This declaration shall be recorded in the minutes of the meeting.”

and Article 3 provides that “Committees shall have the right to remove a rapporteur who failed to declare such interests or who made an untruthful declaration”.

11. There is therefore a general requirement embodied in the Code of Conduct calling on members to avoid any conflict of interest or to disclose it if it is not possible to resolve it. There is also a special rule on rapporteurs’ interests that requires the disclosure of any information that might reasonably be considered by others as influencing rapporteurs’ reasons for assuming responsibility for drawing up a report.

2.3. Other measures accompanying or strengthening the ethical framework

12. A number of measures adopted by the Assembly can be considered as contributing to the effectiveness of the provisions on ethics and transparency.

2.3.1. Transparency of members’ activities

13. The profile of all Assembly members can be found on the Assembly website, which is freely accessible for public consultation, and contains a complete list of the reports and opinions that they have drawn up as well as statements, drafting proposals and written questions they have signed throughout their term of office in the Assembly. It also contains details of their voting positions in plenary.

14. The register of voting in plenary sittings has been published since 2012 on the Assembly website. This arrangement takes account of the growing public and media interest in knowing how parliamentarians vote in the Assembly and is part of a significant trend in Europe towards more transparency in public decision-making.

15. However, this measure does have its critics as it enables retrospective checks to be made on how Assembly members vote in plenary debates. This transparency may therefore ultimately run counter to members’ freedom of expression since they expose themselves to the risk of increased pressure from, in particular, their national delegation or political party. National media have frequently reported instances of political pressure brought to bear on members in relation to major Assembly debates or particularly crucial decisions. It could therefore prove necessary to meet the need to protect voting, which is a key element of the operation of the democratic system, in order to guarantee that it freely expresses personal convictions, without any monitoring, pressure or coercion. Nevertheless, the Rules Committee has up to now refused to insert into the Assembly’s Rules of Procedure specific voting arrangements aimed at avoiding members being subjected to pressure and ensuring respect for their freedom of thought.

2.3.2. Financing and publication of political groups’ accounts

16. Since 1958, part of the Assembly budget has been allocated to financing the Assembly’s political groups. The Rules Committee is currently responsible for examining the way political groups use their allowances, which it does by drawing up an annual communication to the Bureau of the Assembly containing a summary audit of the accounts submitted by the groups. This public funding enables the groups to do their work without resorting to outside donations and, consequently, avoid accusations of conflicts of interest. Today, public funding is regarded as a way of reducing the risks of corruption in the political sphere, as testified by the public funding arrangements for election campaigns, which are becoming more widespread in Europe.

3. Enforcement record

3.1. Declaration of gifts

17. Any member having received a gift or enjoyed a similar benefit of a minimum value of €200 must make a declaration to that effect, within one month, by filling in a standard declaration form.

The register is kept by the Secretariat of the Committee on Rules of Procedure. Six declarations of gifts have been received since the register was opened in March 2013.

3.2. Conflict of interests

18. To date, one situation with regard to a possible conflict of interests has been communicated to the President of the Assembly (see the letter by Mr Ghiletchi referred to in paragraph 2 above and section 7 below). That situation was dealt with under the aforementioned regulatory procedures.

19. Moreover, as far as honorary members of the Assembly are concerned, no request for information has been sent to an honorary member suspected of being involved in representing and fostering the interests of another person or entity and asking him or her to clarify the situation. Consequently, no honorary member has had his or her badge for accessing the Assembly Chamber withdrawn.

3.3. Sanctions

20. The available sanctions against an Assembly member have been applied once. Mr Gaudi Nagy was denied the right to speak and to be enrolled on the list of speakers during the Assembly’s 2014 first part-session following serious and repeated breaches of the Rules of Procedure and basic principles of good conduct. In particular, in 2012 he used a trivial incident during a sitting to launch verbal attacks and hate speech against a Vice-President of the Assembly who was presiding over the sitting. Moreover, an incident involving Mr Nagy occurred on 12 December 2013 during a meeting of the Committee on Legal Affairs and Human Rights.

3.4. Transparency and members’ declaration of interest (Resolution 1554 (2007))

3.4.1. With regard to Article 1

21. Since the introduction of this provision, all candidates for rapporteurship have had to make a statement on the absence of conflicts of interest or on possible professional, personal, financial or economic interests that might be considered relevant or conflict with the subject of the report or the country concerned by the report at the time of the appointment in committee.

22. Statements that reveal possible interests should appear in the synopsis or minutes of the meeting, but that is not always the case. The usual wording employed in the synopsis (“heard a declaration of absence of conflict of interests”) or the minutes (”declared that there was no conflict of interests”) proves too succinct. Rapporteurs have rarely mentioned specific situations, or if they have done so the minutes of the meeting do not always mention this. For instance, when he took on the duties of rapporteur on “Effective representation and participation in the Parliamentary Assembly of opposition parliamentarians in the member States”, the candidate, Mr Jordi Xuclà, emphasised that the national political party he belonged to was in opposition.

3.4.2. With regard to Article 2

23. This provision encourages members to declare any interest that might reasonably be considered by others as influencing their speech before they take the floor in a committee meeting or plenary sitting. There is a similar provision in the United Kingdom House of Commons, where such a declaration is an obligation that may trigger disciplinary proceedings for failure to comply.

24. Such spontaneous declarations are very rare in the Assembly. For instance, in a debate on the “status of chairpersons of political groups in Assembly committees”, held in 2012, Ms Anne Brasseur pointed out her position of Chairperson of the ALDE group.

3.4.3. With regard to Article 3

25. The removal of a rapporteur who has failed to declare a relevant interest or made a false declaration was requested for the first time in connection with the preparation of the report on “Human rights and ethical issues related to surrogacy”. The Committee on Social Affairs, Health and Sustainable Development is therefore the first Assembly committee which has found itself in a situation of having to consider a potential conflict of interest of a rapporteur. At its meeting on 27 January 2016, it considered the issue of a possible conflict of interest of the rapporteur by carrying out the following procedure: firstly, the committee was called upon to assess whether there might be a conflict of interest (as this first vote was procedural in nature, it was undertaken by a show of hands). If so, it had to decide on the opening of the procedure under Article 3 relating to the removal of the rapporteur (this second vote would be by secret ballot). As the committee’s assessment on the first vote by a show of hands was that there was no conflict of interests, it did not hold a vote on the rapporteur’s possible removal.

26. There was another case in the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), following a request made by the Ukrainian delegation for the withdrawal of the mandate of one of the co-rapporteurs for the monitoring of the honouring of obligations and commitments by Ukraine, on the grounds that he failed to respect the principle of neutrality and impartiality to which any rapporteur is committed. On 28 June 2017, the Monitoring Committee decided that the co-rapporteur had breached the code of conduct for rapporteurs of the Parliamentary Assembly and withdrew his mandate accordingly.

4. Allegations of conflicts of interest against Assembly members

4.1. Allegations originating from open sources

27. Since the adoption of Resolution 1903 (2012), the media have reported on allegations of corruption involving members of the Parliamentary Assembly.

In an era of social networks and online media, it would be somewhat naive to believe that politicians can still evade the monitoring of their activities by the media and NGOs and hope that practices contrary to the rules of ethics – such as accepting gifts or invitations or the existence of personal or family interests, especially through financial or commercial assets – will escape public disclosure.

28. A notable example involves the Assembly’s rapporteurs on Azerbaijan. In 2012, the European Stability Initiative (ESI), a Berlin-based NGO, published a report entitled “Caviar Diplomacy: How Azerbaijan silenced the Council of Europe”.

The report divided Assembly members who have served as rapporteurs on Azerbaijan into two groups: “critical voices” and “apologists”. The latter were “members of PACE who [were] on record defending the State of Azerbaijan’s democracy and praising its elections in public and in meetings [of the Parliamentary Assembly]”. The report alleged that members who had defended Azerbaijan in the Assembly had done so for material or geopolitical gains. It also mentioned that “3 or 4” members of the secretariat were systematically receiving gifts. Some allegations were reiterated in a subsequent report released in 2013.

The ESI has not officially communicated the reports to the President of the Assembly. The Secretary General of the Assembly wrote to them asking for the names of the members of the secretariat alleged to have received gifts but received no answer.

29. Another NGO, the European Platform for Democratic Elections (EPDE), published its own assessment of the parliamentary elections held in Azerbaijan in November 2015 together with an “analysis of the activity of international monitoring missions”, in which it emphasised that “the most prominent election observation group that made a biased statement attesting to the democratic conduct of the entire election process was the delegation of the Parliamentary Assembly”.

30. The report on “Escalation of violence in Nagorno-Karabakh and the other occupied territories of Azerbaijan” (January 2016) was labelled as one-sided by some Assembly members and this information was widely relayed by certain media, mainly because of the choice of rapporteur, who had been alleged to have potential conflicts of interest due, in particular, to his membership of the so-called group of “Conservative Friends of Azerbaijan”, his Turkish citizenship and his wife’s economic interests in Azerbaijan.

For his part, when he took up his duties, the rapporteur declared that there was no conflict of interest.

31. In August 2016, Mr Ilgar Mamadov published from his prison cell an open letter calling into question the impartiality of one of the co-rapporteurs on Azerbaijan because he had, amongst other things, accepted government hospitality.

32. In June 2016, the Milan Public Prosecutor’s Office initiated proceedings against a former member of the Assembly, Mr Luca Volonté, currently an honorary member, for corruption and money laundering on the basis of allegations of payments totalling nearly €2.4 million, coming from Azerbaijani companies, transiting via British or offshore companies and Estonian and Latvian banks, in exchange for promoting the interests and positions of Azerbaijan within the Assembly. In a decision of 27 January 2017, the judge for the pretrial hearing of the Milan court decided to send Mr Volonté for trial on a money-laundering charge but ruled that he would not be prosecuted for corruption (on the ground that the alleged facts could not be examined by the courts in view of the parliamentary immunity that applied to the impugned acts). In a judgment of 8 June 2017, the Court of Cassation overturned the second part of the decision and returned the case to the Milan court for reconsideration.

33. This case was widely discussed in the documentary “Caviar democracy” broadcast by the Italian television channel RAI on 21 November 2016, referred to in the report published in December 2016 by the ESI “The European swamp (Caviar diplomacy part 2) – Prosecutors, corruption and the Council of Europe”. Quoting and supporting the details of the investigation broadcast on RAI, the report makes allegations of corrupt dealings, again in connection with the promotion of Azerbaijan’s interests and positions within the Assembly, against former and current members of the Assembly.

34. The ESI report, published on 27 March 2017, “The Biggest Scandal (the Sawicki memorandum and the way forward for the Council of Europe” analyses the follow-up action taken by the Assembly to the above allegations – in particular by setting up an independent investigation body – and expressed the hope that this case would not be swept under the carpet by those members who were opposed to the investigation.

A large-scale joint investigation conducted by a consortium of European journalists and the Organized Crime and Corruption Reporting Project (OCCRP) – The Azerbaijani Laundromat – led to new revelations concerning members and former members of the Assembly.

35. Irrespective of whether they are true or false, these allegations that certain members have promoted interests are damaging to the Assembly’s reputation and credibility.

36. I believe that introducing an outside mechanism, underpinned by the expertise of an independent and impartial body, along the lines of the one which has proven its worth in the United Kingdom, would make it possible to fill the gaps in the current mechanism for applying the Code of Conduct.

Among the powers assigned to the President of the Assembly by the Rules of Procedure, the prerogatives enabling him to take a political line must be dissociated from those demanding strict political neutrality: the disciplinary supervision function, in which the President cannot be both judge and party to the proceedings, undeniably falls into the latter category and should not be subject to any margin of discretion.

4.2. Allegations made by Assembly members

37. Mr Thierry Mariani, Assembly member and Chairperson of the Committee on Migration, Refugees and Displaced Persons, organised, in his capacity as a member of a national parliament, a controversial visit to Crimea in July 2014, a territory occupied by the Russian Federation (he travelled there again in July 2015 and July 2016). Both the Ukrainian and French executive authorities condemned this visit, during which he stated that Crimea was a part of Russia.

Some Assembly members raised the issue with regard to a possible conflict of interest given that such statements contradicted the official positions taken by the Assembly and its Migration Committee the same year. Moreover, this case raises the question of whether specific rules should apply to the chairmanship of a committee as far as respect for the positions taken by that committee is concerned.

38. In March 2017, the President of the Assembly, Mr Pedro Agramunt, the Chair of the ALDE group, Mr Jordi Xuclà, and the Chair of the Committee on Legal Affairs and Human Rights, Mr Alain Destexhe, carried out a visit to Syria at the invitation of the Russian authorities. This visit, described as private by the persons concerned, received widespread Russian media coverage and was presented as a visit by an Assembly delegation, headed by Mr Agramunt. In addition to provoking outraged reactions by several members, delegations and political groups, this raised concerns regarding the media’s announcement of a change in the Assembly’s official position set out in a number of resolutions on the annexation of Crimea and the military conflict in Donbas. It also raised questions about the payment of travel expenses, and generally speaking about the violation of the rules of conduct for Assembly’s members and of the commitments by which Assembly members who exercising key elective offices are bound.

5. Managing conflicts of interest: a comparative perspective

5.1. Definition

39. A conflict of interest is not a conflict of values. It arises from a situation in which a public official has a personal interest which is such as to influence, or appear to influence, the impartial and objective performance of his or her official duties.

It constitutes an indicator, a precursor and a consequence of corrupt action. The United Nations Convention against Corruption calls on States “to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest”.

40. In 2003, the Organisation for Economic Co-operation and Development (OECD) published the Guidelines for Managing Conflict of Interest in the Public Service, which define conflicts of interest as “a conflict between the public duty and private interests of public officials, in which public officials have private-capacity interests which could improperly influence the performance of their official duties and responsibilities”.

41. A definition of a conflict of interest is being gradually introduced into national laws and parliamentary rules of procedure.

42. In France, the National Assembly’s Rules of Procedure define a conflict of interest as “any situation involving interference between a public interest and public or private interests likely to influence or appear to influence the independent, impartial and objective exercise of the mandate”.

43. In Canada, a member of parliament is in a conflict of interest “when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests”.

44. Article 3 of the Code of Conduct for members of the European Parliament with respect to financial interests and conflicts of interest states: “A conflict of interest exists where a Member of the European Parliament has a personal interest that could improperly influence the performance of his or her duties as a Member. A conflict of interest does not exist where a Member benefits only as a member of the general public or of a broad class of persons.”

45. It should be noted that all definitions contain common elements, such as “a personal interest that guides parliamentary action”.

5.2. Two main approaches to managing conflicts of interest in the parliamentary sphere

46. There are two main approaches. The first consists of making the exercise of the parliamentary mandate incompatible with other professional activities,

and the second authorises certain activities by requiring MPs to ensure that there are no conflicts of interest.

5.2.1. The incompatibility of the mandate with ancillary activities

47. A number of countries (such as Ukraine) have simply prohibited MPs from engaging in professional activities during their term of office. Only teaching work is sometimes allowed. The reason for this rule is to eliminate all potential for a conflict of interest during the exercise of the parliamentary mandate. However, this provision, which is often circumvented, has proved unsatisfactory and is supplemented by additional measures, such as a declaration of financial interests.

5.2.2. Duty of transparency

48. The second approach consists of allowing an MP to pursue professional activities (as an employee or entrepreneur) on condition that these activities do not clearly conflict with the exercise of the parliamentary mandate. States differ with regard to what they consider as possibly constituting a conflict. For example, MPs are allowed to work as lawyers in France or Portugal but not in Estonia. Permission for MPs to carry on certain professional activities has been supplemented by a number of ethical, administrative or criminal provisions aimed at increasing transparency and monitoring situations involving conflicts of interest.

5.3. Concept of an apparent conflict of interest

49. The concept of a potential conflict of interest appears in rules of procedure. The Code of Conduct of members of the Parliamentary Assembly and the Rules of Procedure of the French National Assembly, for example, refer to a conflict of interest that might appear to influence the exercise of the mandate. For parliamentarians used to dealing with the rule of law, this introduction of appearance theory sometimes leads to misunderstandings: they may regard it as casting doubt on their probity or an attack on their freedom to exercise their mandate.

However, this concept of a potential conflict of interest has taken hold and now influences the political debate.

5.4. Considerations taken from private life

50. An assessment of the existence of an actual or potential conflict of interest now takes account of the parliamentarian’s family. It is now no longer a question of assessing whether he or she has acted in his or her own interests but of considering the potential benefit that the action may have for the members of his or her family

(France) or even friends

(Canada). This situation is also reflected in the requirement for parliamentarians to declare the financial interests of family members, a declaration made public in some countries. This requirement can clearly be considered interference with private life, which must, according to the European Court of Human Rights, consequently pursue a legitimate aim and be proportionate to that aim. Accordingly, the French Constitutional Council has recognised that the aim pursued – the strengthening of the guarantees of the probity of members of parliament – is legitimate. However; it has held that a breach of the principle of respect for private life would be proportionate for spouses but not for ascendants and descendants.

6. Existing regulation models in parliaments

51. National practices have produced three basic models for regulating conflicts of interest of members of parliament.

6.1. Independent authority against corruption

52. The first model is that of a global anti-corruption mechanism involving a special investigation body responsible for conducting investigations into the professional activities of MPs, members of government and senior civil servants (Romania, Ukraine). In order for a similar body to be able to monitor compliance with ethical principles (incompatibility, conflict of interest), these principles must first be laid down in legal provisions in the form of descriptions of administrative or criminal offences. The advantage of this model lies in compliance with the principle of equality before the law since parliamentarians are put on an equal footing with other holders of public office and are subject to the same procedures. Difficulties associated with the effectiveness of this model are due to the protection afforded by parliamentary immunities: any non-compliance established leads to the initiation of administrative or criminal proceedings and, consequently, to a procedure for lifting the individual’s immunity, which is complex and depends on the political context.

53. Moreover, the use of anti-corruption legislation to deal with conflicts of interest in the political sphere is often criticised for being inadequate. An investigation will be launched only if the facts are “identifiable” and “provable”, thus departing from the “appearance theory”. Unless the bribe can explain an action, it will often be hard to show the causal links between an MP’s action and other, more nuanced motivations. This path is therefore often accompanied by an internal check on compliance with ethical standards.

6.2. Parliamentary self-regulation

54. The second model is based on self-regulation and has been adopted by both the majority of national parliaments in Europe and the European Parliament. It involves a collegiate parliamentary body (the bureau or a parliamentary committee) that draws up reports, conducts an internal investigation into the non-compliance with the rules and imposes sanctions if a breach has been determined. Once this body has established a breach, some rules of procedure enable the parliament to withdraw the member’s credentials, while at the same time giving the individual concerned the possibility of appealing to the Constitutional Court.

55. The advantage of a body made up of politicians lies in their ability to assess the conduct of their peers in the light of the specific features of the political and parliamentary world and the cultural context. This principle has been adopted by several professional associations where disciplinary powers are held by an assembly of fellow members. In the case of parliamentary affairs, it would be safe to assume that a requirement of any examination of an allegation of an MP’s misconduct is to understand the operation of a political body, especially the specific interactions that that body may have with representatives of interest groups.

56. Furthermore, MPs are familiar with the working methods of their own institution and appreciate the reasonable degree of diligence that can be expected of an MP in a given context.

In addition to its supervisory powers, the collegiate body can be required to provide advice to interpret ethical principles and compensate for the lack of precise provisions in the light of the many different situations that arise every day. Colleagues will regard advice provided by their peers who are familiar with the professional environment as legitimate.

57. Critics of this model say it turns MPs into investigators or judges exercising power over their peers, in which case they may be judges and parties on account of their political affiliations, so that such a collegiate body cannot be considered independent and impartial. This mechanism also requires a proactive approach on the part of MPs, especially the Speaker of the Parliament, to call for inquiries into cases of allegations of conduct incompatible with the status of an MP.

58. Despite the criticism, this model is still the most widespread in Europe, no doubt because of the specific way in which parliaments operate, based on the principles of self-government and the separation of powers. Self-regulation is a response to an appeal to promote ethical values in public life, and there are doubtless opportunities for improvement in this area.

6.3. Independent parliamentary authority

6.3.1. Description

59. Although most parliaments have adopted a self-regulation approach, some parliaments (Canada, France, United Kingdom) have gone a step further by delegating the task of overseeing compliance with rules of conduct to an independent authority. This body investigates cases that fall within its area of responsibility and often has a duty to advise MPs on matters relating to the application of ethical rules. The elements to be examined may also concern conduct relating to aspects of the lives of elected representatives that do not pertain to the public sphere and have nothing to do with their parliamentary duties but may cause considerable harm to the parliament’s reputation.

60. It should be noted that, despite the delegation of some powers to an independent authority, a collegiate body made up of MPs (such as the United Kingdom House of Commons Committee on Standards or the Bureau of the French National Assembly) always becomes involved in the final stage of the procedure (imposition of sanctions or final decision on the question of non-compliance).

61. Outsourcing – consisting of partially assigning responsibility for carrying out checks to an independent authority – makes it possible to avoid obstacles associated with self-censorship, to which a collegiate body could be subject. In order to guarantee its impartiality, its members’ terms of office cannot be revoked (save for some exceptions) or renewed. This model involves a cost linked to the salaries and operating costs of the secretariat.

6.3.2. National examples

62. Since opening up the political world to outside scrutiny is a new approach, the powers of existing authorities differ.

– United Kingdom

63. The United Kingdom’s Commissioner for Standards has broad powers: overseeing the operation of the register of members’ financial interests and registers; giving MPs confidential advice; providing advice on interpreting the Code of Conduct; monitoring the operation of the Code of Conduct and, where appropriate, proposing changes to it; and providing guidance and training for MPs on matters of conduct, propriety and ethics. The Commissioner cannot decide whether a member has broken the law or breached the rules of another organisation. The conclusions of an investigation, including the name of the MP concerned and the name of the MP who initiated the investigation, can be consulted online.

64. The Commissioner may be asked to deal with a complaint by MPs or any member of the public

(but not anonymous complaints). Complaints are filed by an organisation or on behalf of an individual. He or she may also launch an inquiry of his or her own motion concerning allegations of a breach of the Code of Conduct reported in the media.

However, even if the conclusions of the inquiry are provided by an independent body, any sanctions are decided by a parliamentary committee (the Committee on Standards, consisting of seven MPs and seven public figures).

– France

65. Since 2013, the monitoring of conflicts of interest with respect to parliamentarians (National Assembly) has basically been shared between two independent bodies – the Déontologue (Ethical Officer) and the Haute Autorité pour la transparence (Supreme Authority for Transparency). The latter’s task is to check the accuracy, on pain of criminal penalties, of declarations of assets, but it also has an advisory role. The Ethical Officer too has an advisory role and works to ensure compliance with and improvements in the ethical rules. He or she “shall submit to the Speaker and the Bureau an annual report in which he or she shall make proposals for improving compliance with the rules set out in the Code of Ethics and report on the general conditions in which these rules are implemented without mentioning elements relating to a personal case. This report shall be made public”.

At the present time, the Ethical Officer is focusing on a preventive approach to warn MPs about possible risks. Despite having a role in the procedure to establish a conflict of interest, he or she has no authority to publish details of individual investigations.

– Canada

66. The Conflict of Interest and Ethics Commissioner, who is appointed by the government after consultation with the political parties, investigates alleged contraventions of the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. He or she draws up a report, which is published. Investigations under the Act are called “examinations” and investigations under the Code are called “inquiries”. In some cases, an individual may be investigated under both regimes. A case may be referred to the Commissioner by an MP but he or she can initiate an examination of his or her own motion.

7. The management of conflicts of interest in the Parliamentary Assembly: the case of rapporteurs

67. None of the regulatory provisions bars a member from becoming a rapporteur if he or she has a particular interest in a subject. A total ban on being appointed as rapporteur in the case of a professional or a partisan connection to a specific subject matter would lead to situations where, for instance, Assembly members with a medical background would not be allowed to assume responsibility for drawing up reports dealing with health-related matters. It would clearly be detrimental to the quality of reports to support a policy of not allowing experienced specialists to deal with highly technical matters in our Assembly. Such a policy would also contradict the general spirit of the rules on “Transparency and Members’ Declaration of Interest” (Resolution 1554 (2007)), which authorise members to speak in committee meetings or plenary sittings on a subject in an area in which they have an interest, provided that interest has been declared in advance.

68. The aim of the declaration of interests is to increase transparency, enable a committee to take a decision to appoint a member as rapporteur in full knowledge of the facts and assess the reasons for a member’s wish to assume responsibility for drawing up a report. The lack of an actual or potential conflict of interest amounts to proof of absolute neutrality, which in a political environment is strictly speaking impossible. In the more specific case of Ms De Sutter, the rapporteur notes that when she accepted the rapporteurship she mentioned her position as Head of the Division for Reproductive Medicine at the Ghent University Hospital. The committee decided, in full knowledge of the facts, to assign her the task of drawing up the report. Moreover, as pointed out above (paragraph 25), the Social Affairs Committee held that there was no conflict of interest regarding its rapporteur.

69. With regard to the procedure to be followed in committee, in application of Rule 3 of the provisions governing transparency and declarations of interest by members of the Assembly, the Rules Committee can only confirm – since the President of the Assembly submitted this question to it in his letter of 9 February 2016 – that the procedure followed by the Social Affairs Committee was fully compliant with the Rules of Procedure.

70. It goes without saying that the effectiveness of the provisions on disclosing conflicts of interest depends on the good faith of rapporteurs. In my opinion, the present regulatory framework provides sufficient guarantees to enable the committees to discharge their responsibility concerning the appointment of rapporteurs, the fulfilment of their mandate and the examination of any allegation of conflict of interest against them.

8. Regulation of lobbyist activities and transparency registers

71. During the discussions on the report, the committee asked me to provide information on the involvement of lobbyists and NGOs in the work of the Council of Europe, and in particular of the Assembly, before contemplating a regulatory transparency framework. The information has already been provided by Ms Chiora Taktakishvili in her opinion on the report by the Committee on Legal Affairs and Human Rights “Transparency and openness in European institutions”.

8.1. Type of extra-institutional actors involved in Council of Europe activities

8.1.1. Economic players

72. Notwithstanding the human rights – rather than economic – profile of the Organisation, the Council of Europe deals indirectly with several matters which could seriously impact existing business models. For instance, Committee of Ministers recommendations regarding the handling of personal data, especially online collection of data, may affect the multi-billion euro industry of online advertising. Recommendations made with regard to the internet, including on filtering, blocking and taking down of illegal content, may result in additional and costly obligations for internet providers. The Council of Europe’s work on bioethics, focusing on the protection of the individual’s rights, identity and dignity, affects the field of biological and medical research and developments in health technology (genetics, transplantation, biobanks, emerging technologies, new genome editing technologies, etc.), in which there has been substantial investment by the private sector.

73. There is also some interest from industry and business lobbies for the Assembly’s work. For instance, the report “Handling of the H1N1 pandemic: more transparency needed”,

the report on “The potential dangers of electromagnetic fields and their effect on the environment”

and the report on “Public health and the interests of the pharmaceutical industry: how to guarantee the primacy of public health interests?”

have been subject to numerous comments by, respectively, pharmacological and information technology lobbyists. Given its large mandate to deal, inter alia, with biodiversity, natural resources, energy, transport, tourism, health, food security, pollution or technological disasters, members of the Committee on Social Affairs, Health and Sustainable Development are more likely to be contacted by industry and business lobbies.

8.1.2. Non-economic players

74. The Parliamentary Assembly and almost all steering committees and monitoring bodies of the Council of Europe have some form of co-operation with (international) non-governmental organisations ((I)NGOs). (I)NGOs are often referred to as natural allies of the Council of Europe given that they usually share fundamental values and general objectives with the Organisation. (I)NGOs are usually understood as organisations driven by the public interest and not funded by a State or a single sponsor. Besides contributing in terms of information, (I)NGOs could also adopt a proactive approach whether this concerns the drafting of a legal document or the dissemination of Council of Europe standards. For instance, the drafting process of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210, “Istanbul Convention”) was triggered by NGOs which mobilised various Council of Europe stakeholders – in particular permanent representations, the Parliamentary Assembly and the Steering Committee on Human Rights – to start the process and are now very active in monitoring the implementation of the Convention provisions.

8.2. Definition of common criteria and procedures for the selection of partner (I)NGOs

75. The current co-operation between different Council of Europe bodies and (I)NGOs could be described as successful. However, the Council of Europe’s Department of Internal Oversight has recently issued some recommendations on how to improve (I)NGOs’ input into the Organisation’s activities and suggested establishing common procedures for the selection of partner NGOs:

“In order to durably secure high added value of NGO contributions, the Council of Europe must therefore optimise its selection of NGOs, utilise good practices for co-operation with NGOs in a flexible manner, and facilitate the contribution of NGOs by easing access to information and reaching out to NGOs.” The lack of geographical balance has been reported too, as well as the difficulty in involving youth organisations in monitoring due to lack of information on both sides.

76. The selection of NGOs depends on the type of activity carried out by a given Council of Europe intergovernmental body. The standard-setting activities, focusing on drawing up common standards, would rather opt for big international NGOs able to provide a consolidated position or to carry out a comparative analysis. The monitoring mechanisms are more interested in national NGOs with country-specific knowledge. The Parliamentary Assembly criteria in choosing (I)NGOs would be similar to those used by the intergovernmental sector and would very much depend on the report being written. The Assembly committees’ exchanges with NGOs are announced on committees’ agendas, minutes are often published and final reports themselves often mention external players who have provided input.

77. A proposed action by the Secretary General to revise, in consultation with the Conference of INGO, the guidelines on the participatory status for INGOs

within the Council of Europe could provide a good opportunity to structure the Council of Europe’s relations with NGOs.

8.3. Access to Council of Europe premises by persons from outside the institution

78. There is no equivalent at the Council of Europe of a common transparency register, no doubt because of the very little activity of professional lobbyists and the Organisation’s working methods. Representatives are given a temporary badge following a request submitted by national delegations or political groups.

79. In its Resolution 1903 (2012), the Assembly took note of the issue of “interest representatives” that act on behalf of private entities or States and bring pressure to bear on its members even within the Palais de l’Europe. It considered that “clear and transparent procedures should be introduced to regulate their access to the Assembly”. It accordingly instructed the Bureau 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”. Meetings were held with the relevant departments which highlighted the difficulty in ensuring in practice compliance with the restrictions on access by persons from outside the Assembly to areas such as the Parliamentarians’ Bar.

80. I believe that this problem should be approached from the angle not of restricted access but of transparency. The activities of interest groups are protected by the European Convention on Human Rights (ETS No. 5) which places importance on the pluralism of ideas for the development of democracy.

The intensity of the existing regulatory frameworks, classified according to the information revealed and the means of control could range from “weak” (European Parliament, France) to “strong” (Canada, the United States).

81. The European Parliament allows organisations registered in its transparency register to have access to its buildings, the possibility of participating as speakers in committee hearings, to host events in conjunction with MEPs and to be provided with information on the work of the parliament. In exchange, the following information is required. Each organisation must provide its name, address and contact details, the name of the person legally responsible, the person responsible for relations with the European Union, the organisation’s goals and remit, the specific activities covered by the register and the number of persons involved, the name of the persons with authorisation to access the premises, the fields of interest, membership and affiliation. They must also sign a code of conduct.

82. An association must be classified in one of the following categories:

i. professional consultancies/law firms/self-employed consultants;

ii. in-house lobbyists and trade/business/professional associations;

iii. non-governmental organisations;

iv. think tanks, research and academic institutions;

v. organisations representing churches and religious communities;

vi. organisations representing local, regional and municipal authorities, other public or mixed entities, etc.

83. I believe that the Assembly should draw on this model in terms of the operating rules and the fact that the registration procedure should take into account the advantages offered to groups in exchange. However, unlike the case in the European Parliament, groups will not be given the right to speak in committee unless they are invited to do so, for example in the framework of a hearing, or be given the documents relating to a committee’s work.

84. Furthermore, I feel that it is necessary to draw up fair rules for organisations or associations independently of any ties they may have with national delegations or political groups enabling them to be invited directly and in this way avoiding registration.

85. At this stage, I suggest the adoption of a single approach, making it possible to consult online all requests for badges submitted directly by an organisation or by a delegation or political group on behalf of an organisation, containing the following information: name, address and contact details, goals and remit of the organisation, funding, the name of the person legally responsible, and the name of the person submitting the request for a badge. There would be just a single category of badge given to these persons.

9. Integrity rules for staff

86. The anti-corruption and fraud prevention framework applicable to Council of Europe staff is composed of several documents.

87. Rule No. 1296 of 18 December 2008 on the acceptance of fees, gifts, decorations or honours, invitations and other advantages from third parties requires that Secretariat members refuse any advantage the acceptance of which may be reasonably interpreted as affecting their judgment or putting them in an ambiguous position. Gifts of a value not exceeding €100 may be accepted if: 1) they do constitute a normal protocol practice; and 2) have been notified to the hierarchical superior.

88. Rule No. 1327 of 10 January 2011 on awareness and prevention of fraud and corruption requires staff members to report suspected fraud and corruption. These rules apply to specially appointed officials and persons who are not Council of Europe Secretariat members who participate in the Council of Europe’s activities, wherever they may be held. These include, but are not limited to, judges of the European Court of Human Rights, the Commissioner for Human Rights, members of the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe, members of Permanent Representations, trainees, experts, consultants and employees of outside companies.

89. The Directorate of Internal Audit is empowered to receive and act upon information regarding fraud and corruption. It investigates on request by the Secretary General or on its own initiative.

10. GRECO report

90. At its plenary session of 19 June 2017, GRECO adopted a report on “Evaluation of the Code of Conduct for members of the Parliamentary Assembly of the Council of Europe”.

This report, based on GRECO methodology and GRECO expertise garnered during the fourth evaluation round (prevention of corruption in parliaments), has borne out my proposed amendments of the Rules of Procedure.

91. The expertise recommended consolidating and harmonising the various codes and guidelines on the conduct of Assembly members in a single enforceable text; strengthening the provisions on conflicts of interest; establishing a system for declaring financial interests: a key measure for detecting potential conflicts of interest; developing strict procedures for declaring gifts; revising the system applying to former members involved in lobbying activities; introducing a robust set of rules on relations with lobbyists and other third parties seeking to influence the parliamentary process; putting in place a consistent and effective mechanism for supervising compliance with the rules of conduct, including an independent oversight body; introducing effective, proportionate and deterrent sanctions; and, finally, developing measures to raise members’ awareness of the rules of conduct and provide training in that regard. GRECO has highlighted the need to establish a system for declaration of financial interests and to put the requirement to declare gifts and other benefits under strict procedures – hence the need to revise the forms and declaratory requirements.

92. Free access to premises and documents for honorary members who undertake consultancy and lobbying must be prohibited. A sound and coherent framework for relations with lobbyists and other third parties seeking to influence the parliamentary process should also be established. Members must further be duly made aware of and trained in the conduct expected of them.

93. In its report, GRECO noted, in a chapter on “misuse of public resources” that the political groups received financing out of the Assembly budget but that the annual statements submitted by each group on the use of those funds remained confidential and that, in addition, groups were “not required to report on further financial and other support (and their use) that they may possibly receive from sources other than PACE”. GRECO therefore recommended that the Assembly “review the accounting standards for political groups so that (i) they are required to report on permissible support from sources other than PACE’s, including the use of such support, and to make the financial statements publicly available; (ii) the annual accounts of all political groups are submitted to the External Audit”.

94. Lastly, my proposals concerning review of the implementation mechanism for the Code of Conduct are in line with GRECO’s proposals recommending the establishment of an impartial and independent monitoring body.

11. Proposals requiring amendments to the Rules of Procedure

11.1. The introduction of a new system for monitoring implementation of the Code of Conduct

95. Having reviewed the various existing models in some national parliaments (France, United Kingdom, Canada) and the European Parliament, in particular with regard to the procedures for opening and conducting an investigation, I suggest introducing an enhanced detection and investigation system relating to alleged violations of the Code of Conduct. This proposal draws heavily on the system currently in force in the United Kingdom House of Commons, which has proven its worth and is viewed by everyone as impartial and effective.

96. I suggest that the Assembly assign examination of requests relating to presumed violations of the Code of Conduct and any investigations to an independent body for standards elected by members in accordance with a procedure to be defined by the Bureau. The President of the Assembly would no longer have the discretionary power to initiate an investigation. Even though the President of the Assembly would still be allowed to request that the investigation body open an investigation, this possibility of initiating an investigation can also be submitted by members of the Assembly and by the investigation body itself (of its own motion, for example on the basis of allegations by open sources considered as sufficiently credible).

97. I also suggest that a progressive system be put in place with regard to the follow-up to be given to the results of an investigation. All the investigations carried out will not require a subsequent examination by the Assembly or result in sanctions. If the investigation body finds that there has been a minor violation of the rules, or an act in good faith (forgetting to declare a gift), it may ask the member concerned to take the necessary steps to rectify the violation.

98. If the investigation body considers that there has been a serious violation of the Rules which is impossible to rectify or if the question raises major issues, it will submit a report to an Assembly ad hoc committee set up pursuant to Rule 44.4.a of the Rules of Procedure. This ad hoc committee will examine the report and reach its own conclusion on whether there has been a violation of the Rules. It will publish and submit to the Assembly its own report, setting out its conclusions and its reasoning, and will recommend possible sanctions. The Assembly will be empowered to take the final decision on the violation of the rules and subsequent sanctions.

99. In the course of the discussion, the members of the committee voiced a number of reservations regarding the approach of assigning a central role to an independent body, highlighting budgetary

and organisational reasons. It was claimed that in the current budgetary climate, the setting up of a new body would mean a reduction in the Assembly’s traditional activities without any evidence that an internal Assembly body could not carry out the same task, as was the case in many national parliaments. The members were in favour of expanding the role of the Rules Committee, assigning it an investigation role, and the authority to request the opening of an investigation and to recommend sanctions. I believe the proposal to make the Rules Committee an investigation body does not fit in with the fundamental idea of having an independent investigation body.

11.2. Relations between proceedings instituted under the Code of Conduct and domestic criminal law

100. I suggest that the relevant authorities be informed about a possible offence under domestic law, if the authority in charge of investigating a breach of the Code of Conduct decides, in the course of an investigation, that acts or omissions which could constitute a breach of the Assembly’s Code of Conduct may also constitute a violation of the domestic (criminal) law of a member State. Moreover, even though there is nothing in the general principles of law which prevents criminal and disciplinary/deontological proceedings against the same person for identical facts from being carried out at the same time, I suggest the Assembly’s investigation be suspended when criminal investigations into identical facts are being carried out by the national authorities until the prosecution has reached a final decision on the charges in question.

11.3. Procedural safeguards

101. Several members questioned the procedural safeguards which any implicated Assembly member shall enjoy. It is important that the investigation must be conducted according to the recognised procedural rights. But, such investigations are not criminal proceedings. Even if some of the rules which are part of the “fair trial” concept are also applicable to disciplinary proceedings, the transposition of fair trial principles into this type of proceedings is not self-evident. The rules of deontology are part and parcel of an autonomous procedural model and mean that it is not possible to simply transpose the rules of criminal proceedings, as this could compromise the effectiveness of disciplinary proceedings and negate their own specific characteristics. The safeguards of the internal oversight procedure could be autonomously defined by the Assembly based on general principles established by the European Convention on Human Rights for non-criminal proceedings. These are:

adversarial proceedings (to have an opportunity to know and comment on the observations filed or evidence adduced);

equality of arms (requires that each party be afforded a reasonable opportunity to present its case under the conditions that do not place it at a substantial disadvantage vis-à-vis another party);

a public hearing in the presence of the parties.

11.4. Strengthening the transparency requirement

102. It is essential to foster greater awareness among Assembly members regarding the values and rules of the Code of Conduct and require a firm undertaking from members to comply with that Code. I suggest that the written declaration provided for in Rule 6.2.b of the Rules of Procedure, which is signed by every member, be supplemented by the following: “In addition, I take note of and undertake to comply with the Code of Conduct for members of the Parliamentary Assembly.”

103. My second proposal concerns declarations which are the corner stone of any system of parliamentary integrity. Information related to professional activities, financial participation, mandates and responsibilities in any commercial entity or non-profit organisation are essential in the management of potential conflicts of interest related to a given activity within the Assembly. Reporting obligations became a non-rebuttable standard of transparency in Europe, thanks to GRECO’s support.

104. Therefore, I suggest the introduction of an obligation for Assembly members to publish their occupations. Assembly members must also describe their professional activities, including the positions they hold on boards of directors, their membership, participation and any relationships with public entities, parliamentary friendship groups, NGOs, or any speeches given at a conference. The alternative proposal put forward during the discussion was to include on Assembly members’ websites their declarations of interests made pursuant to national legislation. However, at present certain parliaments do not have such an obligation. An additional difficulty concerns the multitude of languages in which these declarations are made and the information they contain. Accordingly, I suggest that we introduce a single form for all Assembly members, available in English and in French. However, I prefer to leave it to the Bureau of the Assembly to create the declaration form and decide on its content.

105. Moreover, I suggest introducing a declaration of participation by Assembly members in events organised by third parties, in application of Article 14 of the Code of Conduct. The declaration must be made by a member who, in his or her capacity as member of the Parliamentary Assembly, has taken part in an event organised by a State, including its parliament, or an organisation other than the Council of Europe regardless of whether or not his or her participation has been authorised by the Bureau of the Assembly. Furthermore, if members so wish, they may declare their participation, in their capacity as members of their national parliament, in events organised by third parties.

11.5. Relations with lobbyists and other third parties seeking to influence the parliamentary process

106. In general, lobbying regulations include two components. First, the obligations imposed on lobbyists and other third parties which are not necessarily lobbyists in the ordinary sense (public figures, business representatives, NGOs, trade unions, and others which only exert occasional pressure and/or do not enjoy lobbyist status). The second component relates to the obligations and conduct of parliamentarians (who are the lobbies’ targets).

107. In order to address both obligations, I would propose the following measures:

Firstly, in so far as it concerns lobbyists, I suggest that a single approach be adopted, making it possible to consult online all requests for badges submitted for each session, either directly by an organisation or by a delegation or political group on behalf of an organisation, containing the following information: name, address and contact details, goals and remit of the organisation, funding, the name of the person legally responsible, and the name of the person submitting the request for a badge. There would be a single status printed on the badges issued under this system. There will have to be prior consultation with the Council of Europe’s data protection commissioner to determine the rules and the situation regarding the publication of personal data. This approach received wide support from committee members.

Secondly, with regard to the conduct of members, I suggest that names of those who have contributed to the drafting of an Assembly report be made public. The rapporteur could, if he or she so wished, publish the list of organisations consulted. There is a similar non-binding practice in the European Parliament (“legislative footprints”) and was used in the report on the proposal for the Tobacco Products Directive, the report on a roadmap for moving to a competitive low carbon economy in 2050 and others.

11.6. Sanctions

108. The code of conduct includes a graduated set of sanctions. The least severe consists in the public reading in the Assembly by the President of the Assembly of a reasoned statement mentioning the results of the investigation carried out with regard to the member concerned. In case of serious or repetitive breaches of the rules of conduct, the member concerned can be subjected to the suspension of several rights related to his or her participation in the Assembly’s work: temporary deprivation of the right to sign an amendment, a motion or a written declaration; temporary deprivation of the right to speak and to be enrolled on the list of speakers. Sanctions such as the removal or the withdrawal of the mandate – which GRECO considers to be effective and dissuasive sanctions – do not comply with the Assembly procedure for appointing its members, based on both the Statute of the Council of Europe (ETS No. 1) and the Assembly’s Rules of Procedure. However, some committee members would like to see a wider range of sanctions.

11.7. Harmonisation of provisions on conflicts of interest and declaration of interests

109. In his letter of 9 February 2016, the President of the Assembly asked for the issue of the application of provisions on conflicts of interest to be clarified in this report, particularly in relation to the content of the declaration and the voting procedure to establish whether a provision relating to conflict of interest has been respected. Moreover, in its evaluation report, GRECO also recommended that the provisions on conflicts of interest be strengthened and harmonised.

110. According to the current wording, the committees ask the potential rapporteur to declare “the absence of any conflict of interest”. This wording may appear inaccurate and inconsistent with the provisions of the Code of conduct (Article 3), which do not require members to be exempt from all conflicts of interest but to declare any interest in accordance with the transparency principle. Consequently, I propose to amend paragraph 1.1.1 of the Code of conduct so that the committee chairperson asks the potential rapporteur to declare “any professional, personal, financial or economic interests that might be considered relevant or conflicting with the subject of the report”. The declaration should be noted in the minutes.

111. The complementary texts (Article 3 of the provisions governing transparency and members’ declaration of interest, Article 3 of the Code of Conduct for rapporteurs) provide for a rapporteur to be removed if he or she has failed to declare interests, made a false declaration or contravened the rules of conduct. At present, the procedure for removing a rapporteur must be a two-stage process, in accordance with the provisions of the Assembly’s Rules of Procedure (Rule 47.2): firstly, the committee must rule on the existence of a conflict of interest (as this first vote is procedural in nature, it is undertaken by a show of hands); if it decides in the affirmative, it will hold a second vote, on the rapporteur’s removal (this decision will be taken by secret ballot). Perhaps some thought should be given to simplifying this procedure and having just a single vote.

112. The current integrity framework has been built up gradually over several years on the basis of successive resolutions. Some texts comprise identical or similar provisions. In particular Articles 1 and 3 of Appendix III “Transparency and members’ declaration of interests” have been incorporated into the Code of conduct for rapporteurs of the Parliamentary Assembly, in Article 1.1.1 and Article 3, respectively. Furthermore, Article 2 of the same text is reproduced in Article 9 of the Code of conduct for members of the Parliamentary Assembly. Consequently, I propose deleting this text and modifying accordingly Rule 13 of the Rules of Procedure which refers to it.

12. Proposals not requiring any amendments to the Rules of Procedure

12.1. Publication of declarations of gifts received

113. Following the general move towards increased transparency, I suggest that the Assembly consider the opportuneness of publishing on the Assembly’s website declarations of gifts and similar benefits made by members, as well as publishing the declarations of participation in events organised by third parties.

12.2. Sworn declaration of honorary members

114. Cases have been raised of former Assembly members who had been made honorary members and become involved in representing or fostering third-party interests, declared in some cases and not in others. When they become honorary members, these individuals are granted access to the Palais de l’Europe and the Assembly chamber, among other things. Some use the facilities attached to honorary member prerogatives for personal gain, as paid promoters of certain interests. These practices are already banned by Rule 16 of the Code of Conduct and Rule 3 of the Special Rules on Honorary Association with the Parliamentary Assembly. An effective means of applying these provisions in practice should now be found. I suggest having honorary members sign a sworn declaration, upon being granted that status, stating that they are not involved in representing or fostering another person’s interests. Such a declaration shall also be made by current holders of honorary association.

12.3. Raising Assembly members’ awareness of their ethical obligations

115. In order to address GRECO’s recommendations on raising Assembly members’ awareness of the code of conduct, I suggest that the Secretariat produce fact sheets setting out in a practical way the existing provisions on topics such as gifts and similar benefits, members’ participation in colloquies and conferences, and members’ travel at the invitation of third parties, etc.

13. Conclusion

116. The Committee on Rules of Procedure debated the proposals for amendments that might be made to the integrity framework of the Assembly, recommended by the rapporteur, at several meetings in the course of 2016 and 2017. The draft resolution adopted on 21 September 2017 is the result of an in-depth reflection during which the positions of its members, the experts’ opinions as well GRECO’s recommendations have been duly taken into consideration.

Appendix – Request for an investigation under paragraph 17 of the Code of Conduct of members of the Council of Europe Parliamentary Assembly

(open)

A. Member against whom the allegations are being made

Please identify the member alleged to have contravened the Code:

Name
Title
Address
Telephone
E-mail

B. Reasons for requesting an investigation

Please set out the allegations of a member’s non-compliance with his/her obligations under the Code, identifying the provisions of the Code involved and reasonable grounds for these allegations:

Alleged non-compliance
List of relevant activities and/or facts supporting your reasonable grounds for believing the Code has been contravened
Relevant provisions of the Code

Please attach any supporting documentation to your request for an investigation.

Please indicate whether you have attached documentation to this request for an investigation:

Yes …

No …

[Add separate pages as necessary]

C. Attestation

We, the undersigned members of the Assembly, have reasonable grounds for believing that another member of the Assembly has failed to comply with his/her obligations under the Code of Conduct and hereby intend to bring the matter to the attention of the Assembly’s investigation body.

We make this request for an investigation in good faith and declare that all the information provided is true and accurate to the best of our knowledge.

We understand that it is our responsibility to provide the investigative body with all the information required by this form and to attach any relevant documentation that we may have in our possession to support our request.

Date

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