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2 September 1992
Doc. 6656
Report
on the incompatibility of the offices of President
of the Assembly and of member of government
(Rapporteur : Mr DIMMER, Luxembourg, Chr. Soc.)
SUMMARY
The Statute of the Council of Europe and the Assembly's Rules of Procedure make no mention of compatibility between the office of President of the Assembly and that of member of government. In order to clarify the situation it is proposed to complete Rule 9 of the Rules of Procedure with a new paragraph 10 specifying that the mandate of President of the Assembly ceases if he is appointed member of government.
I. DRAFT RESOLUTION
1. Under Article 25 of the Council of Europe's Statute "each Representative [to the Assembly] must be a national of the Member whom he represents, but shall not at the same time be a member of the Committee of Ministers".
2. The Assembly considers that this provision should be supplemented in its Rules of Procedure in order to separate the offices of President of the Assembly and of a member of government of a member state.
3. It therefore decides to add a new paragraph 10 at the end of Rule 9 of its Rules of Procedure, as follows:
" 10. The President shall cease to hold office as soon as he is appointed member of government1. His place will be filled by a Vice-President, who will act until the following part-session during which the Assembly will elect the President who in turn will act until the end of the current session in accordance with the above provisions".
II. EXPLANATORY MEMORANDUM
A. Introduction
1. On 27 November 1991 the President of the Assembly who had been appointed a Minister resigned from his post as President. Proposals were therefore made to clarify for the future the compatibility between the office of President of the Assembly and a ministerial appointment.
B. Current situation
2. Under Article 25 (a) of the Council of Europe's Statute "Each Representative [of the Assembly] must be a national of the Member whom he represents, but shall not at the same time be a member of the Committee of Ministers". According to Article 14 of the Statute "Representatives on the Committee [of Ministers] shall be the Ministers for Foreign Affairs. When a Minister for Foreign Affairs is unable to be present or in other circumstances where it may be desirable, an alternate may be nominated to act for him who shall, whenever possible, be a member of his government".
3. The Rules of Procedure of the Assembly make no mention of the incompatibilities of members.
4. In the past members of the Assembly were in several instances made Ministers in their country's governments for other portfolios than Foreign Affairs but stayed in the national delegation to the Parliamentary Assembly:
- Mr Guy Mollet was French Minister of State in charge of the Council of Europe from July 1950 to February 1951; in August 1950 he was a member of the French delegation to the session of the Council's Committee of Ministers and even replaced the Minister for Foreign Affairs at the last sitting; during the whole period he was a member of the Parliamentary Assembly and Chairman of the General Affairs Committee ;
- Mr Anthony Nutting was a member of the United Kingdom delegation to the Parliamentary Assembly from May 1952 to December 1954; during the same period he was Under-Secretary of State for Foreign Affairs and replaced the Secretary of State for Foreign Affairs as leader of the United Kingdom ministerial delegations to the Council's Committee of Ministers in May and December 1953 and in May 1954.
5. Mr Jonasson, Prime Minister of Ireland from 1950 to 1953 became a member of the Parliamentary Assembly in 1952.
6. On 30 January 1956 the President of the Assembly became President of the French Government. But he remained in the office of President of the Assembly until April 1956 although he did not chair meetings of the Bureau and the Standing Committee or sittings of the Assembly during that period.
7. Mr Bemporad was a member of the Italian delegation between 1969 and 1973 and in January 1980. On 5 October 1971 he addressed the Assembly in his quality as Under-Secretary of State for Foreign Affairs of Italy. During the following three Assembly sittings on 6, 7 and 8 October 1971 Mr Bemporad continued to sit in the Assembly.
8. In all these instances the compatibility of the governmental offices with the mandate in the Parliamentary Assembly was not challenged2. The reason therefore was a very narrow interpretation of the words "member of the Committee of Ministers" in Article 25 of the Statute. The Assembly considered that incompatibility applied only to Foreign Ministers and note even to members of government responsible for certain Foreign Affairs sectors.
9. Such interpretation is particularly in line with the "travaux préparatoires" for the Council of Europe's Statute. The Foreign Ministers themselves were called upon on 3 May 1949 to take a final decision on the wording of Article 25 for which two variants were submitted to them:
- variant A: "but shall not be a member of the Committee of Ministers"
- variant B: "but shall not be a member of his country's government".
They finally agreed to exclude only Foreign Ministers from membership of the Assembly.
10. On 11 August 1949 some British members, among them Sir Winston Churchill, suggested that members charged with the special duties that fall to a Vice-President of the Assembly, requiring complete impartiality, should not at the same time be a Minister in the government of a member state. It was also proposed at this time that candidates for a Vice-Presidency of the Assembly should undertake not to seek any ministerial post during their term as Vice-President. The President of the Assembly, on the basis of Article 25 (a) of the Statute of the Council of Europe, did not accept these points of view and the matter was closed.
11. In connection with a thorough revision of the Assembly's Rules, the Committee on Rules of Procedure considered the question of incompatibilities in 1950 (see Doc. 2 (1950), page 299 of collected documents; AS (2) CR 11 (collected verbatim reports 1950 page 330)) and expressed the view that "an extension of the rule of incompatibility so as to include Ministers other than the Minister for Foreign Affairs would present one great drawback. It would deprive the Assembly of picked men, of men capable, just because they are ministers, of influencing their colleague the Minister for Foreign Affairs and, indirectly, the Committee of Ministers in favour of the Assembly". This conclusion was approved by the Assembly on 17 August 1950.
C. Possible solutions
12. It has to be admitted that since the drafting of Article 25 of the Council of Europe's Statute there have been important changes.
13. The regulations on incompatibilities in force in other international parliamentary institutions, particularly in the European Parliament, have been greatly extended. By the same token, in the work of the Ad hoc Committee on the Revision of the Statute of the Council of Europe provision has been made for an extension of incompatibilities applying to the members of the Assembly.
14. In the case of the President of the Assembly, additional reasons militate in favour of keeping this high office free from ministerial authority. There is a difference between a member of the Assembly and the President, whose special impartial duties when occupying the Chair include decisions on questions of great importance to the Assembly. The Assembly's external relations have increased considerably and the President plays an important part in this respect. Contacts between the President of the Assembly and the Chairmen of the Committee of Ministers and Ministers' Deputies are more frequent. The President is invited to most ministerial sessions.
15. All this speaks strongly in favour of the separation of the offices of President of the Assembly and of member of government, which could be achieved by the following means:
a. Changing of Rule 25 (a) of the Council's Statute (variant A)
16. Article 25 could be amended as follows:
"... but shall not be a member of his country's government" (instead of "a member of the Committee of Ministers").
According to Articles 29 (i), 20 (d) and 41 (d) of the Statute, such amendment would require a two-thirds majority in the Assembly and in the Committee of Ministers (ministerial level). This change would also mean that not only the President but also members who are appointed member of government would have to leave the Assembly.
b. Changing the Rules of Procedure (variant B)
17. Addition could be envisaged of a new paragraph 10 at the end of Rule 9 (Election of the Bureau):
" 10. The President shall cease to hold office as soon as he is appointed member of government. His place will be filled by a Vice-President, who will act until the following part-session during which the Assembly will elect the President who in turn will act until the end of the current session in accordance with the above provisions".
18. The latter amendment would adapt the Rules to the practice followed by the Assembly after the resignation of the President on 27 November 1991. But it has to be admitted that an obligation for the President to cease holding office is stricter than the provisions of Article 25 (a) of the Statute of the Council of Europe.
19. It should be recalled that in a similar case3 also affecting Article 25 (a) of the Statute, the Committee on Rules of Procedure finally agreed to supplement the statutory provision with an amendment to the Rules of Procedure of the Assembly.
20. At its meeting on 10 March 1992, the Committee on Rules of Procedure expressed a clear preference for variant B. This solution, by limiting incompatibility to the President of the Assembly alone, would not have the same radical consequences as variant A (para. 16 above). The Committee also considered that the words "member of government" were to be interpreted in the widest sense so as to include among the incompatibilities with the presidency of the Assembly in particular the appointment to the post of Secretary or Under-Secretary of State. A corresponding explanatory footnote could be inserted on the page of the Rules of Procedure where the text of the new paragraph 10 of Rule 9 will be reproduced.
21. It is understood that while resigning from his presidential post nothing prevents a President of the Assembly who has been appointed member of the government to remain a member of his national delegation until he is replaced.
D. Final remark
22. The Committee on Rules of Procedure decided to submit this report to the Standing Committee and invites it to adopt the draft resolution.
Reporting committee : Committee on Rules of Procedure
Budgetary implications for the Assembly : None
Reference to committee : standing mandate of the committee to up-date the Rules of Procedure
Draft resolution : unanimously adopted by the committee on 5 June 1992
Members of the Committee : Sir Anthony Durant (Chairman), MM. Dimmer, Kozlowski (Vice-Chairmen), Mrs Aguiar, Mrs Albrink, MM Alloncle, André, Andreis, G. Bjarnason, Borg, Capanna, Colombo, Faulds, Sir Geoffrey Finsberg (Alternate: Parry), MM. Franck (Alternate: Granstedt), Galanos (Alternate: Hadjidemetriou), Gül, Gundersen, Junghanns, Karcsay, Laakso, Lemoine, Leyden (Alternate: Ferris), Marten, Moya, Rokofyllos, Schieder (Alternate: Strimitzer), Schiesser (Alternate: Mrs Haller), Mrs Soutendijk-van Appeldoorn, Mrs Terborg, M. Thissen.
N.B. The names of those members who took part in the vote are underlined.
Secretary to the committee : Mr Heinrich.
1 1 The Committee on Rules of Procedure (Doc. 6656) explained that the words "member of Government" were to be interpreted in the widest sense, including the office of Secretary/Under-Secretary of State.
2 1 The President of the Assembly welcomed for instance Mr Bemporad (see paragraph 7 above) with the following words: "He is in the peculiar position of occupying two seats in this hall at the same time. You are in fact Mr Bemporad one of our colleagues. You occupy seat No. 30 between Ms Bergegren and Mr Beauguitte. But you are today as a member of the Italian Government. It is in that capacity that I have the pleasure of calling you now ...".
3 1 See Resolution 932 (1989) on the composition of national delegations. The Assembly initially proposed (Recommendation 1027 (1986)) an amendment to the Statute of the Council of Europe. The Committee of Ministers replied (Doc. 5680) that "the Committee of Ministers does not have a sufficient majority to move the amendment of Article 25 of the Statute in accordance with the Assembly's recommendation since most delegations consider that there are other ways of implementing it, for instance by amending the Assembly's Rules of Procedure". Under these circumstances, the Assembly decided to amend para. 5 of Rule 6 of the Rules of Procedure (Resolution 932 (1989)).