EDOC7961

Doc. 7961

26 November 1997

Democratic functioning of national parliaments

Report

Committee on Parliamentary and Public Relations

Rapporteur: Mr Hans Helmut Moser, Austria, Liberal, Democratic and Reformers’ Group

Summary

Parliament is the expression of the will of the people and of public interest. To fulfil this role, it carries out functions that form the core of European parliamentarianism, namely making laws, laying down the rules which govern our society and, through a number of procedures, supervising the executive; this power makes it necessary for the government to command the confidence of the chamber elected by universal suffrage.

This central role of parliament is hampered by the executive's growing dominance, detrimental to the balanced apportionment of powers between parliament and government, by the prominence of the media in debate concerning public affairs, and by the hastening of decision-making procedures to meet the demands of news releases made the instant after events have occurred.

This state of affairs, as the frequency of poor election turnouts indicates, makes the citizens somewhat sceptical about the proper functioning of democracy, which hinges on parliament.

The report, based on a comparative analysis of 27 European parliamentary systems in the key areas of legislative initiative and procedures, parliamentary control over the executive and status of parliamentarians, identifies criteria which, while acknowledging a diversity born of history and national traditions, can inspire adaptations conducive to greater effectiveness in parliamentary proceedings and consolidation of the legislature.

I. Draft resolution

1. Parliament is the expression of the will of the people and the public interest. To fulfil this role, it performs functions which form the core of European parliamentarianism, namely: it makes the law, establishes the rules of positive law, and sets the legal rules which govern our society; through a number of procedures, it acts as watchdog as regards the executive and, by virtue of this power, the government must command the confidence of the Chamber elected by universal suffrage.

2. Though national parliamentary systems are based around a common core, they are differentiated by the varying ways in which they function, resulting from traditions shaped by the history of the countries in which they have taken root.

3. Paradoxically, whilst these systems are different, they all have common problems. They result from public disillusion with politics in general and unfamiliarity with the work of parliaments. In addition, this negative view is reinforced by the increasingly dominant role which government is playing to the detriment of the balance between executive and legislature on the one hand and by the role of bureaucracy on the other. Finally, within the context of representative democracy, the public's desire for an active share in public affairs goes well beyond simply taking part in elections.

4. Parliamentarians are elected by the people to represent their interests and aspirations and they cannot address current problems without reconsidering the functioning of parliament as an institution.

5. In the light of the debates of the seminar on the democratic functioning of parliaments which it held on 21 and 22 November 1996, the Assembly notes that:

i. the legitimacy of political representation cannot be reinforced unless there is a more balanced representation of men and women and more citizen participation in political decision-making;

ii. reinforcing political legitimacy will help to readjust the relationship between the executive and the legislature by improving the balance of powers;

iii. the relationships between majority and opposition within parliaments are governed by rules and procedures which sometimes lead to malfunctions;

iv. the confidence of voters in their representatives may be undermined, among other things, by the exaggerated influence over them wielded by their parties or political groupings, at times obliging them to take up positions which are too far removed from their election promises;

v. an effective legislative process, as one main task of parliament, depends on making resources available (e.g. information structures, legal services, staff) to representatives;

vi. the functioning of parliamentary control procedures will depend on many factors: political and legal realities and their interaction, the access to and use of information, the role of the media as well as the powers and attitudes of other public bodies;

6. The Parliamentary Assembly believes that member parliaments should, whenever they are faced with these problems:

i. take control over their own agendas;

ii. obtain means of information on an equal footing with the means at the disposal of the administration serving the government;

iii. ensure that the functioning of parliamentary commissions of enquiry is based on certain criteria — relating to their membership and their investigating methods — which enable them to perform their tasks objectively and fairly;

iv. give the opposition a status enabling it to play a responsible and constructive role;

v. put an end to or reduce to a minimum the simultaneous holding of offices in several elected institutions so as to make representatives more available to their constituents and improve the efficiency of parliamentary work;

vi. improve the electoral system:

a. by ensuring, if possible, a territorial link between parliamentarians and electors so that the latter do not find themselves faced with candidates of whom they know little or nothing;

b. by enabling electors to express a preference for candidates of their own choice;

vii. open the way to greater citizen participation in political decision-making - taking account of the promotion of women's role - through the use of various forms of referendum, according to the principles outlined in Resolution 1121 (1997);

viii. work out guidelines which would enable elected representatives to enjoy a degree of independence thereby preventing representative democracies from lapsing into party autocracy.

II. Draft order

1. The Assembly believes that the future of European integration is inextricably linked to the establishment of a common political culture through the reinforcement of national parliaments as intermediaries between local needs and international and/or supranational needs. The critical assessment of the functioning of national parliamentary systems at European level helps to encourage a change of mentalities in the same direction.

2. Considering that the smooth functioning of democracy like fairer representation of women, is constantly raising new challenges, the Assembly feels that this type of review should feature regularly on its agenda.

3. Accordingly, the Assembly asks the Committee on Parliamentary and Public Relations to make provision in its work for permanent monitoring of social developments likely to affect the functioning of democracy, and encourage regular exchanges of information and pooling of experience between the member parliaments taking special note of the new global dimension of the problems.

III. Explanatory memorandum by Mr Moser

Table of contents

Page

FOREWORD 6

THEME I : LEGISLATIVE INITIATIVE 6

Tenure 6

Conditions and fields 8

THEME II: LEGISLATIVE PROCEDURE 9

Preliminary 9

Legislative procedure 10

Urgency 10

Amendments 10

Budget 11

Treaties 11

Constitutional law 11

THEME III: PARLIAMENTARY CONTROL OF THE EXECUTIVE 11

Introduction 11

Appointment 12

Censure 12

Questions 12

Committees 12

Budget 13

Foreign Policy 13

State of emergency 13

Administration 13

THEME IV: THE STATUS OF PARLIAMENTARIANS 13

Eligibility 13

Incompatibility 14

Rights 14

Duties 15

Immunity 15

Internal disciplinary measures 15

Emoluments 15

Disclosure of assets 16

Campaign funding 16

CONCLUSIONS OF THE PROCEEDINGS 16

APPENDIX I: Resolution 1121 (1997)

APPENDIX II : Programme of the seminar

FOREWORD

1. The present report is based on a long and thorough preparatory work achieved by the Committee on Parliamentary and public relations which led to the holding of a Seminar on the "functioning of parliaments" held in Strasbourg on 21-22 November 1996. It started with the drawing up of three questionnaires: the Status of the parliamentarian , the parliamentary control of the executive and the parliamentary legislative initiative which were sent to the member delegations of the Parliamentary Assembly.

2. The analysis of the replies revealed the necessity of improving the questionnaires with a view to better adapting them to the diversity of the national situations. A revised version of these questionnaires together with a questionnaire on " the legislative procedure " were sent to the parliamentary delegations. The replies sent by 27 of them gave a representative picture of the various parliamentary systems existing in Europe.

3. The examination of the replies was entrusted to the experts who presented the reports on the themes of the Seminar ( see appended programme ). The comparative studies contained in these reports are unprecedented in Europe.

4. Some ninety parliamentarians, civil servants and academics from thirty-four countries in western, central eastern and baltic Europe took part in the seminar. The participation of the parliamentarians was intended to ensure a balance between theory and practice.

The proceedings of the Seminar have already been published by the Council of Europe.

5. The aim of this document is to report on the results of the seminar as well as to suggest political conclusions for member delegations and to show that the plurality and diversity of democratic traditions and practices may be the strength of a European model and a major opportunity to further develop the democratic functioning of parliaments.

THEME I: LEGISLATIVE INITIATIVE

Tenure

6. The head of state rarely has the right of legislative initiative. In parliamentary monarchies, where the king's or queen's power is largely symbolic, it is a leftover from bygone days. The Senate in Belgium, Finland, Hungary, Latvia, Lithuania and Poland form an exception among republics, but their presidents have made little use of this right of initiative. The President of Hungary has availed himself of it only twice since 1990, while in Latvia and Lithuania the proportions of bills introduced by the president is 0.8% and 6% respectively. Although the Finnish president has the right of initiative under Article 8 of the Constitution, it is the Council of State (government) which prepares legislative texts. France, where the president has the right to initiate only constitutional amendments, is a special case.

7. The right of initiative is likely to conflict with the role generally allocated to the president of a republic to ensure the constitutionality of laws. It would be desirable for the head of state to confine himself to being the guardian of the constitution, either by being able to refer legislation to the Constitutional Court or by being able to ask parliament to debate it afresh.

8. In all the reporting countries, the government (or the prime minister) has the right of legislative initiative and does indeed exercise it. Government bills usually pass into law because it has the confidence of parliament and often it alone has the requisite information to properly prepare bills - the most obvious case in point being financial bills and because the government and the parliamentary majority are one and the same in political terms. Parliaments are sometimes reduced to acting as “law factories”, at the expense of their other functions. Since many constitutions do not determine the scope of the legislative sphere, it can happen that governments, unaware of their own prerogatives, submit bills on matters on which they could normally issue regulations.

9. In bicameral systems the right of initiative always lies with the first chamber. In most countries, individual parliamentarians may exercise it on their own or jointly with other members of parliament. The exceptions are the German Federal Parliament, where non-government bills must be signed by at least 5% of its members (i.e. 34 deputies at the moment) and Latvia, where they must be tabled by at least 5 parliamentarians. .

10. In some countries (e.g. Belgium, Croatia, the Czech Republic, France, Italy, Poland, Rumania, Slovenia and Switzerland), members of the second chamber enjoy the same right. Belgian senators and members of the Swiss Council of Cantons, for example, may exercise this right individually or collectively. The German Bundesrat may propose laws, but its bills are submitted to the first chamber, the Bundestag, by the government. The same practice is followed in Austria.

11. In Germany, the Bundesrat exercised its right of initiative 96 times between 1990 and 1994. The Slovene National Council availed itself of it four times in 1993/94. Generally, the second chambers seem to make very limited use of this power.

12. Although they play an important role in the legislative process, committees have the right of initiative in very few countries (Croatia, Hungary, Latvia, Slovakia). For example, in Hungary, it fell to a committee to submit the bill on the status of deputies, as it was held that the government should not interfere in the functioning of the legislature.

13. In some countries, such as the Czech Republic and Portugal, parliamentary parties expressly have the right of initiative, while in others the rules of procedure do not exclude it.

14. In federal states like Austria and Germany the second chamber’s right of initiative enables Länder or provincial governments to assert their interests. In multinational states, or those that give sweeping powers to the regions (e.g. Italy, Portugal, Spain), regional assemblies or councils have the same right, as do the cantons in Switzerland. In contrast, to judge by their constitutions, the states of central and eastern Europe are suspicious of regions and local government. The only exceptions are the Czech constitution, Article 41 of which accords this right to the highest organ representing local authorities - but these local authorities have not yet been established - and the Serbian constitution which, in Article 80, grants it to the assembly of autonomous territories.

15. Citizens’ right of initiative is a form of direct democracy expressed through referenda. The Italian and Spanish constitutions expressly provide for this right; the former requires that proposals, drafted in articles, be signed by 50,000 persons, while the latter requires 500,000 signatures.

16. The Lithuanian, Macedonian, Romanian, Serbian and Slovenian constitutions contain similar clauses. In Slovenia, 5,000 signatures are enough whereas in Rumania, there must be 250,000 from electors from at least a quarter of the departments and each department may supply no more than 10,000 signatures.

17. In practice, the government most frequently has the right of legislative initiative, followed by members of parliament. Although in some countries more legislative proposals are tabled by parliamentarians than by the government, the proportion is reversed when we consider those which actually become law - bills rarely succeed unless backed by the government. Rather than tabling a bill itself, the government sometimes prefers to do so through parliamentarians.

18. When the parties represented in parliament wish to demonstrate their consensus on a subject, they can table a bill signed by all their members.

19. The right of initiative of other persons and organs is only of marginal importance but its existence may be regarded as a democratic safeguard.

Conditions and fields

20. Of all the factors limiting the right of initiative, the criteria for admissibility are the weightiest. They are frequently set, not by constitutions, but by the rules of assemblies or even by custom.

21. In some European countries, parliament’s powers are absolute, as neither the constitution nor any special law determines the areas in which it is entitled to legislate. In Hungary, parliament can adopt a law on any subject whatsoever, because the law on legislation and the establishment of legal standards rests on very broad notions. It is even customary practice that, once a field has generated legislation, it must always be governed by legislation. In this way, legislation encroaches on the area of regulations.

22. In others, parliament may be excluded from initiating legislation in certain fields such as matters within the competence of the European Union, the communes, the regions, or the courts (e.g. Belgium) or the federate states. Some states’ constitutions empower only the government to introduce (Bulgaria, Czech Republic, Macedonia, Poland) or restrict the scope for parliament to table amendments to finance bills (cf. France, Greece, Portugal). Elsewhere, rules of procedure deal with the subject. Members of parliament rarely have at their disposal the information which would enable them to gauge the exact financial consequences of their proposals.

23. Even if the right of legislative initiative is not restricted by the constitution or rules of procedure, it comes up against informal, purely practical limitations, such that only the government can exercise it. The government alone has the power to table a draft budget or tax or finance bills. Nowadays important codes such as commercial, civil or penal codes are not drafted by one person but by a team in a ministry. In no country do members of parliament have sufficient information or staff.

24. The executive is increasingly bent on imposing its will when setting the agenda of parliaments. Moreover their rules of procedure give government bills priority over private members’ bills (cf. e.g. Hungary, United Kingdom House of Commons). In some parliaments, bills can be dismissed for failing certain formal criteria. Bills may also be excluded for reasons of content (cf. France, Germany, Italy, Lithuania). Such filtering mechanisms rarely apply to government bills. Almost all the national reports note that these filters are very effective against opposition proposals.

25. In most countries, the authors of bills remain in control of them until the final vote is taken.

26. It would be desirable for private members wishing to table a bill to receive more help from their parliaments. They do not have anything like the same resources at their disposal as governments. At most, they have the backing of small teams of lawyers, whereas parliamentary parties can call in experts, thanks to the subsidies they receive. The situation is particularly critical in the youngest parliaments of central and eastern Europe, where computerisation must be expanded, libraries helped to offer new services and information and documentation centres set up. On the other hand, the support for private members in the German Bundestag may offer guidance.

27. While lobbies and pressure groups can undeniably influence the wording of a bill or amendments to laws, their activities have no legal basis in many of our countries.

THEME II: LEGISLATIVE PROCEDURE

Preliminary

28. Almost all parliaments are entitled to amend their rules of procedure, usually under the supervision of a constitutional court.

29. Every parliament holds one or two long sessions each year, except in Switzerland with three four-week sessions each year. In most countries, including Germany, the president or speaker has no power in the legislative process; in others, he or she is responsible for procedure, preparing the agenda or selecting motions and amendments. In Armenia, the president has a veto power.

30. With the exception of Luxembourg, plenary sessions are public. Most parliaments have rarely invoked provisions for private meetings. Most allow public access to committee sessions, but in Belgium, Finland, France, Germany (except for committees of inquiry), Italy, Lithuania, Rumania and Switzerland, this is limited or excluded. In some States, the media’s access to sessions has been provided for with mixed results.

31. France requires that the Council of State and, sometimes, the Economic and Social Committee be consulted before the Council of Ministers' adoption of a bill and consequently long before parliament examines a bill. In other countries, other affected bodies are often consulted informally. All parliaments have a number of standing committees, usually between 11 and 25 each. Committee members are usually appointed by each faction proportionate to its strength in the chamber. By appointing committee members for each debate, the United Kingdom is unique.

Legislative procedure

32. Tenure of legislative initiative is addressed in Theme I. In almost all countries, debate procedure is the same regardless of who initiated the bill. With the exception of France, Parliament normally sets its own agenda.

33. All bicameral legislatures operate shuttle systems (cf. Italy). In Germany (in cases not formally requiring the Bundesrat’s assent), Poland and the United Kingdom, the lower chamber has the last say. Belgium uses a complex system of unicameral enactment for some laws, and optional or obligatory bicameral procedures for others. Save in Rumania, Poland, and Switzerland, the text is examined at two or three readings. The readings usually address substantive issues, but in the Czech Republic, the Slovak Republic and the United Kingdom, some readings may only be formalities or address details of the measure. Time limits are rarely placed on debates, except in Armenia, but some chambers restrict speaking time.

34. Generally, votes are taken on amendments first, a simple majority being the most common rule.

Urgency

35. Rare instances where emergency debates are provided for are the parliaments of Germany (by declaration of the Federal President) and Lithuania (by voting thresholds). Decisions can be taken rapidly through long, uninterrupted readings (Cyprus, Luxembourg, Slovenia and the United Kingdom), combined readings (Croatia and Macedonia) or by omitting readings (Belgium, France and the Slovak Republic). In Denmark, Germany, Luxembourg, the Slovak Republic, Switzerland and the House of Lords in the United Kingdom, the government has no means of ending the debate. In Armenia, Bulgaria, the Czech Republic, Italy, Slovenia and the House of Commons in the United Kingdom, it can call a confidence vote. In France, it has other exceptional powers to push through a decision.

Amendments

36. A variety of rules apply to the timing of and deadlines for amendments. The president of the assembly, committees (Bulgaria and Slovak Republic) or a special body decides whether amendments are admissible, but several countries have no particular procedure for doing so. Any member of parliament may withdraw an amendment he has proposed. In some countries, it can be taken up by another parliamentarian. Generally, government amendments are most likely to be adopted, followed by those tabled by party groups, and last, amendments tabled by individual members.

37. All chambers can reject bills, without this having any direct implications for the government. The constitutionality of a law can be challenged by a member as a citizen (Belgium, Croatia, Denmark, Macedonia), by one-fifth (Bulgaria, Lithuania, the Slovak Republic) or one-third (e.g. Armenia, Austria, Germany, Latvia) of the deputies, by 60 Senators or assembly members (France), by 15 members or 25 Senators (Rumania) or not at all (Finland, Italy, Luxembourg, Slovenia, Switzerland and the United Kingdom).

Budget

38. Apart from some special rules pertaining to when the budget bill must be introduced (e.g. Armenia, Czech Republic, Poland) or passed, budgetary procedure is comparable to that for ordinary laws. Budgets are usually examined by a special, standing committee. The second chamber generally has fewer powers with respect to the budget (cf. the Belgian and Polish Senates and the House of Lords in the United Kingdom).

Treaties

39. In most countries, parliament is responsible for ratifying treaties. This sometimes requires varying qualified majorities, particularly where the treaty affects special state interests (e.g. two-thirds in Croatia for treaties conferring constitutional powers, four-fifths in Lithuania with respect to territorial changes or three-fifths in the Czech Republic where a treaty requires parliamentary approval). Only rarely is parliament consulted before signature (cf. Denmark’s Foreign Policy Committee) or has it a right to make amendments or add reservations (Cyprus, Luxembourg, Rumania, Slovak Republic). In the United Kingdom Parliamentary ratification is not normally needed (although domestic application would require legislation).

Constitutional laws

40. Special rules govern the passage of constitutional laws, involving procedures both within and beyond the legislature. For example, Bulgaria requires an elected Grand Assembly; in Belgium and Denmark, an election has to intervene; Denmark also requires a referendum; referendums may be held in France, Germany, Italy and Rumania. The United Kingdom is a notable exception, in that review follows almost normal procedure.

THEME III: PARLIAMENTARY CONTROL OF THE EXECUTIVE

Introduction

41. Parliamentary control of the executive is an essential, even if difficult to define, characteristic of our democracies. We can distinguish between ex ante and - more spectacular - ex post procedures, as well as between routine and ad hoc procedures. The wider term ”control” encompasses both control in the narrow sense and ”reaction”, which is too frequently associated with parliament’s power to dismiss the government. Control may be exercised by parliaments themselves or by other organs.

Appointment

42. Parliament always has some role in the appointment of the executive, but in presidential systems, this may only be consultative (e.g. Finland). Its intervention may be indirect (e.g. the Queen’s invitation to the majority leader in the United Kingdom’s House of Commons) or direct (e.g. Germany, Slovenia, Spain, Switzerland), explicit (e.g. Belgium, Czech Republic, Greece, Lithuania) or tacit (e.g. the United Kingdom). It may intervene before appointment (e.g. Poland) or after (e.g. Italy). Our parliaments reveal many variations and refinements on these possibilities (cf. e.g. Hungary, Rumania, Sweden).

43. Some countries view membership in parliament as incompatible with government office (e.g. Belgium, Cyprus, France, Luxembourg, Norway, Portugal, Slovenia, Sweden, Switzerland) while others may regard it as requisite (e.g. Ireland, the United Kingdom) or customary (e.g. Germany, Poland). In some countries, there are no precise rules.

Censure

44. Few parliaments (e.g. those of San Marino, Slovenia, Switzerland) are unable to force the resignation of the government. Responsibility may be collective (France, Hungary), individual, or collective and individual (Austria, Czech Republic, Denmark, Finland, Liechtenstein, Lithuania, Norway, Slovenia, Turkey). It may be subject to the head of government’s discretion and political astuteness (e.g. the United Kingdom). Belgium, Greece and Luxembourg equate defeat on the budget with censure, while Iceland and Sweden leave this evaluation to the government. Censure may be subject to special procedures. In some countries ( e.g. France, Germany, Greece, Hungary, Italy, Portugal, Slovenia and Spain) these are fairly restrictive to avoid precipitate overthrow of the government by factions not themselves capable of marshalling a new majority.

Questions

45. Parliamentary questions may serve to protest abuses of power, to ascertain government intentions or stress the constituency interests of the poser. Procedures for initiating these exchanges of information are various. Questions may need to be oral (Cyprus, Greece) or written (Hungary). Usually they may be or oral or written. Major and minor questions (Germany, or in Denmark for the length of debate) may be distinguished or according to the addressee’s responsibilities or their length (cf. Finland). For example in Austria, one hour is set aside daily for questions before considerations of the items on the agenda. They are a widely-used control mechanism in the European democracies (e.g. Denmark, Germany, Spain, and the United Kingdom). The procedures as to time for responding, debate, votes and their consequences vary significantly.

Committees

46. Committees, especially those of supervision or inquiry, play an important part in controlling the executive. They may be based on constitutional provisions, laws or parliamentary custom. The conditions for their establishment vary (e.g. in Greece a request by one-fifth of the members, in Rumania one-third). Their powers range from approaching those of judicial or investigating authorities (e.g. Greece, Italy, San Marino) over a power of summons (e.g. Rumania) to more restricted powers (e.g. Finland, Norway).

Budget

47. Although parliamentary control over the budget remains a tenet of our democracies and a device for overall review of executive performance, the influence of parliamentary debate on the budget remains limited. Budget initiatives are exercised by the executives, which may also usually seek further funds from parliament in the curse of the budget period. Cyprus, France, Italy, Lithuania and Spain regulate parliaments right to amend the budget. In the Ireland, Malta and United Kingdom, parliament cannot exceed the ceilings put forward by the government. Time limits for budget debates are common (Belgium, Denmark, France, Norway, Turkey) but not universal (cf. Finland). Most parliaments receive regular reports from the government on public spending. In controlling the implementation of the budget the finance committees play an important part, but often with the aid of public Audit Offices (Belgium, France, Germany, Italy, Luxembourg, Norway, Poland, Rumania), Auditors (Cyprus, Finland, Sweden), and similar bodies. Public enterprises are supervised by various devices such as the budget (Denmark, France), the relevant ministry (Sweden), audit boards (Norway), etc.

Foreign policy

48. Parliamentary control of foreign policy is fairly limited. In most countries, parliament has a role in the ratification of at least certain treaties (cf. Theme II above). Foreign policy debates appear to be frequent (e.g. in France, Germany, Italy, Luxembourg, Norway, Spain, Sweden) except in Portugal. Most foreign affairs committees seem to actively use their far-reaching powers.

State of emergency

49. Few countries (e.g. Austria, Belgium, Luxembourg) have no provision for declaring a state of emergency. This is sometimes declared by the head of state followed by parliament’s ratification (e.g. Rumania), sometimes by the government with parliament’s authorization or confirmation (Cyprus, France, Ireland, Spain, Turkey) and sometimes by parliament (Germany, Lithuania), sometimes by a parliament that itself takes the appropriate measures (Sweden, Switzerland).

Administration

50. In most of our countries, parliament controls administration, more or less directly and by various means, such as requests for information (e.g. Luxembourg), management reports (e.g. Switzerland), committees with fairly extensive investigative powers (e.g. Finland, France, Italy, Switzerland) or ombudsmen.

THEME IV: THE STATUS OF PARLIAMENTARIANS

Eligibility

51. Nationality (with some flexibility, e.g. in the United Kingdom) is a universal criterion for eligibility, sometimes for a minimum period (Armenia, Poland). The age requirement is usually 21 years, but varies from 18 years (Germany) to 25 years (Cyprus, Italy, Lithuania) or, for the upper chambers, even 35 years (Rumania) or 40 years (Czech Republic, Italy). Other criteria include completion of national service (France) and permanent residence (Lithuania). The numerous grounds for ineligibility include imprisonment for a certain period (Belgium), conviction of certain offences reflecting unworthiness (Cyprus, Denmark, Finland, Germany, Latvia, Lithuania, the United Kingdom) court declarations of mental incapacity or depriving electoral rights (Belgium, Finland, Germany, Latvia, Poland, Rumania, Switzerland) or holding certain public (Finland, France, Lithuania, Rumania, the United Kingdom) or clerical (the United Kingdom) offices.

52. Elections are monitored by various bodies, such as election commissions at national or local levels. Most chambers may also review the eligibility and credentials of their members.

Incompatibility

53. A parliamentary mandate may be incompatible with cabinet office (Belgium, Croatia, Cyprus, France, Luxembourg, Slovenia, Switzerland); judgeship in certain courts or the office of ombudsman (Belgium, Croatia, Czech Republic, Denmark, France, Finland, Germany, Italy, Luxembourg, Poland, Slovakia, Switzerland); membership of a public audit authority (Czech Republic, Germany, Luxembourg, Poland) or central bank (Belgium, Czech Republic); civil service posts filled by government appointment; officer rank in the professional armed forces or law enforcement; employment with a foreign government or an international institution; and even membership of a municipal council. In some countries, the parliamentary mandate is incompatible with functions in public-owned companies or in companies under contract to the state. It is nearly always legally permissible to sit in parliament and hold a professorship or be employed in a state-funded scientific research institute.

54. In the event of incompatibility, the member must choose between his/her parliamentary seat and the other functions. In some countries, the mandate remains in abeyance (Luxembourg, Slovakia) or is exercised by the member’s substitute (Croatia, Slovenia).

55. In Denmark and the United Kingdom ministers must be MPs while in Cyprus, France and Switzerland they may not. In Czech Republic, Finland, Germany, Latvia, Lithuania, Poland, Rumania, there are no precise rules on this matter. In Belgium, Croatia, Luxembourg, Slovakia, Slovenia, a minister’s mandate is suspended. Minister MPs may not be allowed to sit on any or certain committees and may only receive his or her ministerial and not parliamentary emoluments. The representation of MPs in cabinet ranges e.g. from 100 % (Germany, the United Kingdom), 94 % (Italy-Berlusconi), 68% (Italy-Prodi), 26 % (Czech Republic) to 0% (Italy-Dini).

Rights

56. Beside the rights of legislative initiative and control of the executive, described in Theme I and III in more detail, and the related rights to express views, engage in debates and obtain information, respondents mentioned other rights such as to compensation (France, Germany), to form (Poland), join (Rumania) or change (Germany) factions, to attend local council meeting in the MP’s constituency, to have proper facilities for performing the MP’s functions, maintain confidentiality or to immunity.

Duties

57. In some countries, members have no specific duties other than those towards the parliamentary group or party to which they belong. Some indicated were to keep election promises (Finland), to act in the general interest (France), to act in the interests of the MP’s electorate (Italy), to participate in all parliamentary activities (Cyprus, Latvia, Macedonia, Rumania, Slovakia, Slovenia, Switzerland), to take the oath of office, to respect confidentiality of sittings, to declare all functions and professional activities to the clerk’s office, to observe parliamentary procedure; etc. A deputy who refuses to give reasons for his or her absence during a given number of sittings may lose part of the parliamentary allowance (Chamber of Representatives in Belgium, Cyprus, Czech Republic, Lithuania, Poland).

Immunity

58. A deputy is not liable to civil or criminal proceedings in respect of any statement made during the course of his or her duties. In certain countries (Armenia, Croatia, Denmark, Germany, Latvia, Lithuania, Poland, Slovakia), protection may not extend to insult and libel. Deputies also have the privilege of extra-parliamentary immunity; they may not be arrested, searched or prosecuted for a criminal or lesser offence without authorization of the chamber to which they belong, except if they are caught in the act or immediately thereafter, or if already convicted, but even then often only if the offence is punishable by a specific term of imprisonment subject to mandatory arrest. In any case of arrest, search, or prosecution, the authority shall inform the speaker of the chamber. Immunity may be waived, following a formal request by the prosecutor general to parliament. The decision may be made, for example, by vote on recommendations of various committees and hearing procedures or by the president of the assembly (France). Sometimes special voting procedures are required (Finland, Lithuania, Poland, Rumania). The success rate of applications to waive immunity varies (recently e.g. 0% in Slovakia, ca. 68% in Belgium).

Internal disciplinary measures

59. A wide range of internal disciplinary measures and procedures are applied in our parliaments, and evaluating their severity is difficult. Besides situations akin to ineligibility and incompatibility (cf. above), disqualifications may, inter alia, occur for repeated unauthorised absence (Armenia, Finland, Macedonia) or failure to take the oath of office (Poland).

Emoluments

60. Parliamentarians’ salaries tend to be above the national averages (except Switzerland). They are taxable although MPs’ allowances are not (except Croatia). The level of allowances and the purposes to which they are dedicated vary. Beside travel and representations purposes staff costs are commonly covered. Sometimes there are no limits on receiving income from other sources (Belgium, Bulgaria, Denmark, Germany, Latvia, Luxembourg, the United Kingdom), but in others there are limits, such as to other public service income (e.g. Cyprus, France, Finland).

Disclosure of assets

61. In some countries (Armenia, Croatia, Cyprus, Luxembourg, Macedonia, Rumania) there are no specific provisions on the disclosure of assets by members of parliament. Where they do exist, they are generally recent. Members may be obliged to make their declarations within one to three month after election (Bulgaria, France, Italy, Poland), or after expiry of the mandate (France, Poland), and/or every year (Bulgaria, Czech Republic, Poland, Slovakia). The information that must be given in these declarations varies. Declarations are filed with the speaker of the chamber, or with a special committee, which may or may not be a parliamentary committee. Generally speaking declarations are confidential; in three countries, however, - Italy, Slovakia and the United Kingdom - this information is freely available to all citizens.

Campaign funding

62. Some countries do not have specific legislation on the funding of election campaigns. In others, law exists which may limit campaign expenditure, accord parties, under certain conditions, grants from the state budget for funding their campaign, allow them to receive donations from corporations, or only from individuals, etc. The list of contributions must be published or stated in the accounts.

CONCLUSIONS OF THE PROCEEDINGS

63. Six questions emerged as general conclusions from the debates of the seminar on "the democratic functioning of parliaments" in Strasbourg, 21-22 November 1996:

a) Must parliament be a forum of debate? Yes. Its role, etymologically, is one of speaking, that this was its main task has been demonstrated. But for what debate? It should be a debate on constitutional and legal matters as well as on current political issues. A compromise has to be reached between the majority and the opposition so that the latter has everything it needs - the rights of initiative, amendment or questioning - for it to have a chance of influencing the decisions taken by the majority or at least taking part in the process. Debate must therefore be seen as a means for the opposition to express its ideas and proposals.

b) Should we open up the parliamentary debate to the media? Yes. As the representation of the people in a democracy, a parliament must open to the public via the media. If we want to make parliament more open, we have to be willing to pay the price namely that it would become more difficult to reach a compromise, to be truly efficient and to remain legitimate in the eyes of the general public. Finding the right balance is the task of the members of the constituent assembly.

c) Do the words and deeds of members of parliament express their own ideas or those of their political groups? Both. All modern constitutions prohibit “imperative mandates” but the elections are won first and foremost by a political party and only after this, by the candidates themselves. This results in the following paradox: elected members are the general representatives of the nation, but political parties have acquired a legitimacy that was undreamed of a hundred years ago. Here too a balance needs to be found that respects the ultimate accountability to the people.

d) Is legislation or is control the essential task of parliamentary government? Both. Even if the importance of control has been stressed, one may wonder whether a parliament can be powerful if it has only one of these powers. In fact, a parliament which passes laws but does not control is like a master giving orders to deaf and lazy servants, while a parliament which controls without legislating is like a master without servants at all. At times in the control process, balancing transparency and security become issues.

e) Does parliament have suitable means of controlling the executive? No. Parliamentary control lies at the interface between the official apportionment of powers and mostly informal network of parliamentary communication. As the executive depends, in one way or another, on the confidence of parliament, the tension caused by the frequent identity of the controller and the controlled must be resolved by strengthening the rights of the opposition. The right of control centers on the attempt to obtain and digest information. It was said that parliaments are often overloaded with information, or get the information only from government bodies; or there are certain areas , notably foreign policy or defence, in which not enough information is to hand. On the same subject, the need for suitable back-up was emphasised.

f) Do parliamentarians need privileges? Yes and no. The answer depends largely on how politicians conduct themselves and the circumstances under which they fulfil their functions. Some privileges (e.g; social and financial ) have mostly outlived their usefulness. On the other hand, the privilege of immunity is inextricably. linked to effective parliamentary work.

64. Overall one can stress the plurality and variety of democratic traditions and practices in Europe.This diversity, rooted in different cultural, social and historical traditions, can be maintained while pursuing the principal aim of democracy -participation of the people in politics.

Appendix I

RESOLUTION 1121 (1997)¹

on instruments of citizen participation in

representative democracy

1. A truly living democracy depends on the active contribution of all citizens. Their participation in political life and their co-operation within political institutions are a decisive factor for the smooth functioning of democratic institutions.

2. The poor rate of participation in legislative elections, as well as in referendums held in member states and, in general, citizen dissatisfaction with the functioning of pluralist democracies calls for a debate on the phenomenon, which is hardly surprising since democracy is a permanent quest demanded by new circumstances and changing attitudes.

3. The causes of this phenomenon are many: the contrast between the complexity of political terminology and the simplification and dramatisation of media presentations of the issues at stake; the fact that information can be communicated instantly while politicians are assumed to be slow in reaching decisions; the fact that people do not understand the complexity of the problem and expect quick, apt solutions; the discrepancy between election promises and their implementation.

4. The anxiety generated by this state of affairs creates a need among citizens to participate more in political decision-making with a view to preventing a deterioration in their situation or improving it.

5. The Assembly therefore considers that the opportunities for direct citizen participation in political life offered by the representative system must be enhanced to correspond more closely to citizens' aspirations.

6. A prior observation is necessary to prevent a misunderstanding, with potentially weighty implications, which tends to set direct democracy against representative democracy. The harmonisation of mostly contradictory and conflicting needs of citizens or groups of citizens, dictated by the general interest, can be achieved only through parliamentary deliberations. The use of direct democracy must be regarded as a complement. Even in Switzerland, often held up as an example of direct democracy, 95% of decisions are taken by parliament.

7. However, before developing forms of direct democracy — for example, interactive communication facilities on information networks and referendums — we must consider their viability and possible adverse effects.

8. Information facilities, however sophisticated, would not be able — at least not in the foreseeable future — to extend the bilateral dialogue between one elected representative and one citizen to a dialogue between one elected representative and a number of citizens; the electronic forum is not yet fully tried and tested.

9. The national referendum is written into the constitutions of representative democracies but varies from one country to another in terms of its objectives, its subjects and its means of implementation. Referendums run the risk of becoming plebiscites when they are used by the executive to reinforce its own power.

10. This risk exists in democracies consolidated over time and particularly in those countries with large populations which are therefore more difficult to govern than small countries. The risk is even greater in new democracies which are therefore more fragile.

11. Implemented in relatively small communities for practical issues, regional and local referendums cause less concern and are recommended.

12. Nevertheless, the Assembly realises not only the drawbacks but also the positive aspects of consulting the electorate directly, such as the fact that it enables a minority of citizens to express their opinion and be heard by government and can stimulate a democratic debate either legitimising a decision taken by the government or approving an opinion rejected by the government.

13. Abuse of referendums must not obscure their real aim which is to render representative democracy more participative and in so doing to consolidate it and to serve as an antidote to the current malaise undermining it.

14. The Assembly therefore believes that it is important to lay down parameters for referendums to ensure that, where they are held, they conform as far as possible to best practice and strengthen democracy and civil society.

15. Consequently, the Assembly invites the member states:

i. to improve their system of representative democracy by striking a balance between the exercise of responsibility of political power and the role of citizens in the decision-making process. Without such a balance, we will be unable to prevent either the erosion of confidence in the representative system or the rash use of frequent referendums which would make any long-term policy based on fundamental options random, ineffective or even impossible;

ii. to regard all subjects as suitable for being submitted to a referendum, with the exception of those which call in question universal and intangible values such as the human rights defined in the Universal Declaration of Human Rights or the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the basic values of democracy in general and parliamentary democracy in particular;

iii. to take account in their thinking of the distinctions to be made between the subjects suitable for a referendum the result of which is binding and the subjects suitable for a consultative referendum the result of which enables political leaders to improve their programmes and decisions;

iv. to make provision for referendums designed to repeal existing laws as well as referendums offering the choice between various options;

v. to envisage rules to ensure that citizens are properly informed about all the issues involved in the referendum and that questions and proposals are worded completely unambiguously;

vi. to limit the number of subjects per referendum to be held the same day to clarify the debates on the documents subjected to a vote and to help citizens to reach a decision;

vii. where appropriate, to create organs responsible for applying these rules and guarantee the independence of such organs;

viii. to lay down rules and guiding principles which, in order to prevent any misuse of the referendum:

a. enable a referendum to be set in motion by minority groups, whereby the number of signatories should be fixed by each state in accordance with a threshold considered to be significant compared with the total electorate;

b. ensure that the referendum is preceded by a debate in parliament;

c. fix a quota for participation in the ballot which discourages abstentionism while guaranteeing a minimum rate of participation enabling the result obtained to be regarded as representative and valid;

d. enable the parliament to present its own alternative to any proposal by the citizens.

Appendix II

SEMINAR ON THE DEMOCRATIC

FUNCTIONING OF PARLIAMENTS

Strasbourg, 21-22 November 1996

in the framework of the

Pan-European Programme for Interparliamentary Co-operation

Programme

THURSDAY 21 NOVEMBER 1996

9 am Opening of the Seminar by Mrs Lára Margrét RAGNARSDÓTTIR, Chairperson of the Committee on Parliamentary and Public Relations, Member of the Althingi, Iceland

General presentation of the Seminar by Mr Hans MOSER, General Rapporteur, Member of the Committee on Parliamentary and Public Relations, Member of the Nationalrat (Austria)

General introduction by the Moderator: Mr Didier MAUS, Associated Professor at the University I of Paris, Director of the Revue française de droit constitutionnel, France

9.30 am - 12.30 pm Theme I: Rights and duties of parliamentarians

Chairperson: Mrs Lára Margrét RAGNARSDÓTTIR, Chairperson of the Committee on Parliamentary and Public Relations, Member of the Althingi, Iceland

9.30 am Introductory statement by Mr Andrzej RZEPLINSKI, Professor at the Univesity of Warsaw, Poland

9.50 am Debate

10.30 am Coffee break

10.45 am Debate (ctd)

12.20 pm Oral summary of the debates by Mr Wolf-Dietrich GRUSSMANN, Professor at the University of Salzburg, Austria

12.30 pm Lunch break

2.30 - 5.30 pm Theme II: Legislative Initiative

Chairperson: Mrs Manuela AGUIAR Deputy, Portugal

2.30 pm Introductory statement by Mr Lázló TRÓCSÁNYI, Professor at the University József Attila at Szeged, Hungary

2.50 pm Debate

5 pm Coffee break

5.20 pm Oral summary of the debates by Mr Wolf-Dietrich GRUSSMANN

5.30 - 6.40 pm Theme III: Legislative procedure

Chairperson: Mrs Liia HÄNNI, Member of the Riigikogu, Estonia

5.30 pm Introductory statement by Mr Philip NORTON, Professor at the University of Hull, United Kingdom

5.40 pm Debate

6.40 pm End of the sitting

FRIDAY 22 NOVEMBER 1996

9 - 10.30 am Theme III: Legislative procedure (ctd)

Chairperson: Mrs Liia HÄNNI, Member of the Riigikogu, Estonia

9 am Debate (ctd)

10.20 am Oral summary of the debates by Mrs Rumyana KOLAROVA, Professor at the University of Sofia, Bulgaria

10.30 am Coffee break

10.50 am - 4 pm Theme IV: Parliamentary control

Chairman: Mr Andreas GROSS, National Councillor, Switzerland

10.50 am Introductory statement by Mr Elvind SMITH, Professor at the University of Oslo, Norway

Statement by Mr Dieter WIEFELSPUTZ, President of the Bundestag Committee on Rules of Procedure, Germany

11.10 am Debate

12.30 pm Lunch break

2.30 pm Debate (ctd)

3.50 pm Oral summary of the debates by Mrs Rumyana KOLAROVA

4 pm GENERAL CONCLUSIONS presented by Mr Massimo LUCIANI, Professor at the La Sapienza University in Roma, Italy

4.20 pm CLOSING REMARKS by Mr Hans MOSER

Reporting committee: Committee on Parliamentary and Public Relations

Budgetary implications for the Assembly: none

Reference to committee: Order No. 489 (1993)

Draft resolution and order adopted by the committee on 31 October 1997

Members of the committee: Mr Jansson (Chairman), Mr Kelam (Vice-Chairman), Mrs Arnold, MM. Berceanu, Brennan, Bugli, Mrs Bušic, Mrs Calleja, M. Cardona, Sir Sydney Chapman (Alternate: Hancock), MM. Christodoulides, Dagys, Diacov, Dokle, Dzasokhov, Eversdijk, Fogaš, Gross, Mrs Grzeskowiak, MM. Henry (Alternate: Staes), Horn, Ms Jones, Jónsson, Kelemen, Kotlar, Koulouris, Külahli, Lauricella, Lekberg, Likhachev, Loufti, Lummer, Martins (Alternate: Pereira Marques), Michel, Mignon, Moser, Mrs Nistad, MM. Pahor, Pantelejevs, Regenwetter, Samofalov (Alternate: Popescu), Speroni, Svoboda

N.B. The names of those members who were present are printed in italics.

Secretary to the committee: Mr La Porta

¹. Assembly debate on 22 April 1997 (11th Sitting). See Doc. 7781, report of the Committee on Parliamentary and Public Relations (rapporteur: Mr Columberg). Text adopted by the Assembly on 22 April 1997 (11th Sitting).