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13 October 1995
Doc. 7418
REPORT1 on the adoption of an amendment replacing a draft text
(Rapporteur: Sir Anthony DURANT, United Kingdom, European Democratic Group)
I. Draft resolution
1. The Assembly notes that its Rules of Procedure make no mention of the admissibility and adoption of amendments replacing a draft text (opinion, recommendation, resolution, order).
2. In order to clarify this matter it hereby decides to insert, in Rule 30 of the Rules of Procedure, after paragraph 2, a new paragraph worded as follows:
"An amendment shall be inadmissible if it is designed to delete or replace the whole of a draft text2".
II. Explanatory memorandum
by Sir Anthony DURANT
A. Introduction
1. On 29 June 1994 (19th Sitting) the Assembly examined a draft recommendation included in a report from the Committee on Culture and Education (Doc. 7101).
2. An amendment (No. 1) to replace the committee's draft recommendation (Doc. 7101) with another draft recommendation was tabled by Mr Berg and Sir Russell Johnston. Parts of this "counter-proposal" (nine out of twelve paragraphs, including the appendix) were, however, identical to those of the draft recommendation proposed by the committee (Doc. 7101). Because of the deadlines required the Committee on Culture and Education could not be consulted before the amendment was tabled, but the Chairman and the Rapporteur had approved it.
3. Before putting Amendment No. 1 to the vote, the President of the sitting set out the procedure to be followed, stating in particular that a two-thirds majority was required since the amendment was designed to replace a draft recommendation.
4. After the result of the vote (rejection of Amendment No. 1) had been announced, some members felt that the amendment should have been adopted with a simple majority and not a two-thirds majority as there was nothing in the Rules of Procedure to indicate that a two-thirds majority was required for the vote of an amendment. Other members, however, considered that as the amendment after all proposed the adoption by the Assembly of a new draft recommendation, a two-thirds majority was necessary. Moreover, they observed that no one had raised any objections when the President of the sitting had explained the voting procedure. The result had only been disputed when the President had announced that the amendment did not achieve a two-thirds majority. Several members spoke either for or against the procedure applied. The President of the sitting, considering that the amendment had not been adopted, finally called the Assembly to vote on the text presented by the committee. The text also was not adopted since it failed to gain a two-thirds majority.
5. At its meeting on 1 July 1994 the Bureau instructed the Committee on Rules of Procedure to examine the rules concerning the adoption of an amendment replacing a draft recommendation.
B. Procedure and current practice of the Assembly with regard to amendments replacing a draft text, particularly a draft recommendation
6. Several types of amendments comprise a complete draft text (opinion, recommendation, resolution, order):
—am endments designed to replace the draft text submitted by the committee with a new text ("counter-proposal");—
—am endments designed to replace the committee's draft with a compromise text ("alternative draft"), which is often the result of negotiations between the rapporteurs of the committees asked for a report and an opinion;—
—am endments presenting the Assembly with a draft text to be added to the committee's draft, in which case the Assembly is called upon to adopt two complementary texts.7.
7. Because of their dual nature (they are both a draft text and an amendment), such amendments raise the following procedural questions:
—th eir admissibility;—
— th e majority required for adoption (particularly in the case of a draft recommendation or opinion);—
—wh ether it is necessary, once the amendment has been adopted, to vote on the "text as a whole" (final vote).Ev
Even though amendments designed to transform a draft resolution into a draft recommendation and vice-versa are a different case, I intend also to consider them in this context.
8. Rule 30 of the Rules of Procedure of the Assembly states inter alia that:
—"A mendments shall relate directly to the text which it is sought to alter and may only be made to texts submitted to the Assembly for adoption (...)" (paragraph 2);—
—"T he President shall decide whether the amendments and sub-amendments are in order (...)" (paragraph 4).—
—"A mendments and sub-amendments shall have priority over the texts to which they refer and shall be put to the vote before the text itself" (paragraph 5).9.
9. According to Rule 28 paragraph 3 of the Rules of Procedure, "the texts shall be examined [by the Assembly] on the basis of the committee's draft".
10. Rule 36, on the majorities required in the Assembly, makes no explicit reference to amendments. But in paragraph c it states that the majority required "in respect of a draft resolution and any other decision, [is] a majority of the votes cast". As the Assembly has not availed itself of the possibility provided for in Article 29v of the Council of Europe's Statute to determine by specific decision what majority would be required for amendments, the afore-mentioned general provision of Rule 36c is applicable (see also The Parliamentary Assembly — Procedure and Practice, 9th edition, p. 138).
11. The Rules of Procedure of the Assembly therefore contain no particular provisions on amendments constituting draft texts. Consequently it is for the President of the sitting to decide how to proceed, taking due account of Assembly practice and, in particular, any precedents.3
12. It should be noted in this respect that according to Rule 125 paragraph 1b of the Rules of Procedure of the European Parliament, "no amendment is admissible if ... it seeks to delete or replace the whole of a text". This provision was introduced in connection with a general revision of the European Parliament's Rules in 1981 (see EP doc. 1-926/80). Rule 31 paragraph 3 of the Rules of Procedure of the Assembly of the WEU states that "unless otherwise decided by the President, an amendment shall relate to only one paragraph at a time".
13. An analysis of the current situation with respect to the admissibility and the majority required for the adoption of an amendment seeking to replace the whole of a draft text is to be found in the appendix. It results thereof that such amendments have always been declared admissible by the President, although this was sometimes contested.
14. From the three types of amendments (see paragraph 6 above), it is those that aim at adding a draft text to the one submitted by the committee that have been the most criticised in view of their admissibility.
15. There have also been no more recent challenges of the admissibility of an amendment proposing the transformation of a draft resolution into a draft recommendation.4
16. The Assembly's practice since 1949-50 relating to the majorities required for the adoption of amendments embodying a complete draft text was not constant.5 However in the last years there is a tendency to adopt such amendments with the majority required for the adoption of the text concerned and not to proceed to a final vote on the text as a whole.
C. Proposals
17. Amendments proposing a draft new text, replacing the committee's draft recommendation, are in general "relating" to that draft recommendation and they aim at "altering" it in the sense of Rule 30 (2): they propose the most radical change, namely an entirely new wording.
18. This is however mostly not the case for amendments proposing to add a draft text to that presented by the committee. It does not intend to alter the latter text but leaves it entirely intact. This means that the conditions for amendments under Rule 30 (2) (see paragraph 8 above) are generally not fulfilled.
19. At its meetings on 4 November 1994, 31 January and 26 September 1995 the Committee on Rules of Procedure considered in detail the various solutions with respect to amendments replacing the whole of a draft text:
—de claring such amendments as inadmissible (variant A);—
—re quiring for their adoption the same majority as for the adoption of the draft text concerned (for instance a two-thirds majority for amendments replacing draft recommendations or draft opinions) (variant B);—
—pr oviding for two separate votes by the Assembly; first on the amendment as such and then on the draft text as a whole (variant C).20
20. The committee clearly came out against variant C. It has to be admitted that if two votes were prescribed for amendments constituting a complete draft text, the majority required would in the case of a draft recommendation, be different for the first and second vote. This would be particularly striking if the amendment embodying the new draft recommendation would not be substantially sub-amended. Those who succeeded on a simple majority for such an amendment but failed to secure a two-thirds majority thereafter could nevertheless claim outside the Assembly that it had de facto approved a text.
21. The members of the Committee on Rules of Procedure also examined thoroughly the advantages and drawbacks of variant B. It:
—pe rmits an unacceptable draft text presented by a committee to be modified by a single amendment and avoids a series of amendments that would have to be tabled;—
—fa vours the passing of compromise draft texts and provides for a certain degree of flexibility in an international body like the Parliamentary Assembly;—
—fa vours greater freedom of expression in the Assembly; since a member had a perfect right to ask for the simple rejection of the whole of a committee's text by voting against, he/she had a still greater right to have it replaced by a positive proposal.22
22. Amendments embodying a draft text, becoming under variant B ipso facto the new draft recommendation/resolution (without a further vote), also have the following disadvantages:
—on ly a limited number of members may, according to the provisions in force (item 8 of the "organisation of debates") speak on amendments;—
—am endments may only be sub-amended and there is not always sufficient time in committee for their consideration;—
—am endments replacing a draft text and which are not the result of a compromise, may annihilate the work of the committee (which prepared the report with the draft initial text) and the objective pursued;—
—in fact such amendments mostly correspond to motions for a recommendation or resolution but they are not referred to committee and do not lead to the preparation of a report;—
—si nce there are no specific provisions in the Assembly's Rules of Procedure and as some national parliaments do not allow such amendments, there is a risk of misunderstanding and misinterpretation of the Rules.23
23. Despite the possibility for a single member to request at any moment the reference to committee6 of an amendment replacing a draft text (Rules 33 (1d) and 30 (9)) and the already mentioned practical needs, the Committee on Rules of Procedure, by a relatively clear majority vote, rejected variant B and expressed itself in favour of variant A.
24. The majority felt that it was important to have stricter rules with respect to amendments and to give procedural guidance to both the President and the Assembly. In the view of these committee members an amendment embodying a new draft did not "alter" the initial text. They also considered that it was difficult to identify differences between such amendments and the initial draft text.
25. Variant A makes it necessary to define the term "the whole of a draft text". It appears several times in the Rules of Procedure (for example, in Rules 28 (4), 30 (9); 45 (10)) and means, in that connection, the complete draft recommendation, opinion, resolution, order, submitted to the final vote. It may well happen that an amendment be tabled seeking to replace not the whole of a draft text but perhaps 80% or 90% of it. This problem was advocated at the committee meeting on 31 January 1995 and there was agreement that "the whole of a draft text" meant all points/sub-points of a draft text's operative part unless it consisted of a single point. The President has (under the powers granted to him by Rule 30 (4)), the possibility to declare out of order an amendment drafted in such a way as to circumvent the inadmissibility of amendments embodying a draft text.
26. As amendments merely seeking to change the category of a text (for example, from a draft resolution into a draft recommendation) do not completely change the competent committee's initial draft, they do not call for special treatment. After such an amendment is adopted on a simple majority, the final vote on the amended draft text is held on the majority established by Rule 36 for the category of text in question (see the example in official report 1967, p. 489).
27. The committee having not received terms of reference from the Bureau to submit proposals relating to amendments embodying the addition of a new text to that presented by the committee, this matter is deliberately not mentioned in the draft resolution. However, unless there were justified urgent and political reasons, the President should, under Rule 30 (4), declare such amendments out of order.
28. To implement variant A, Rule 30 would have to be complemented along the lines proposed in the draft resolution above.
D. Closing remark
29. The Committee on Rules of Procedure decided to present the report to the Standing Committee. The new rule would be applicable immediately after its adoption.
APPENDIX
Practice of the Parliamentary Assembly
with respect to the admissibility and the adoption
of amendments embodying a complete draft text
i. Admissibility
1. The admissibility of amendments comprising a draft text was uncertain in 1949-50 in the Assembly's early days, but there have been changes since then. On 8 December 1951 paragraphs 2 and 5 were added to Rule 30. Following a request from the Chairman of the Political Affairs Committee, made during the plenary session of 30 January 1969 and seconded by the President of the Assembly, the Assembly referred the question of the length and nature of amendments to the Committee on Rules of Procedure (Reference No. 731). At its meeting on 13 May 1969 the Committee on Rules of Procedure approved the conclusions of a working paper (AS/Pro (20) 13) as listed below:
—"a n amendment aimed at replacing the whole of a draft text by a new text of a similar nature is perfectly in order";—
—"t hus it does not seem that there is any reason to restrict the Assembly's right to alter the nature of the text presented by a committee or, consequently, the prerogative of the members to table amendments for that purpose" (amendment moved by a member designed to transform a committee's draft resolution into a draft recommendation).Ge
Generally speaking, the committee noted that:
—th e practices of national parliamentary assemblies with regard to amendments varied considerably,—
—th e precedents of the Assembly itself, the need to maintain optimal conditions for debates and the preservation, as far as possible, of the prerogatives of its members were good reasons for maintaining the status quo, particularly as the President can and must use his judgment as to the admissibility of amendments to prevent any abuses.2.
2. At the same time, the Committee on Rules of Procedure requested that the question of the length and nature of amendments be removed from the Assembly register. The Bureau and the Assembly granted this request on 16 May 1969 (AS (21) PV 7).
3. In 1971 the question was asked if the presentation by way of an amendment of complete alternative or counter-proposals to the rapporteur's or the committee's draft text did not necessitate a dilatory motion (Rule 33 (1a) to the effect that the rapporteur's/committee's draft is not considered at all and that only the counter-(alternative) proposal is submitted for examination and vote. The Table Office then had accepted the admissibility of such a dilatory motion and prepared a model. But since that time this matter has no longer played a role.
4. The Assembly and its bodies have not reconsidered the admissibility of amendments comprising a draft text. Occasionally members have, however, expressed dissatisfaction with the procedure, for example on 19 September 1986 (13th Sitting), when a member, referring to an amendment proposing a new compromise text asked the President "to reconsider the question of whether Amendment No. 40 is really an amendment. I say this although for practical reasons I ought perhaps not to have mentioned it ...".
5. Problems have in particular arisen in connection with amendments comprising a draft text (mainly a recommendation or a resolution) to be added to the committee's draft. Their admissibility was mainly questioned on the grounds that it was difficult to prove that they "related directly to the text" and more particularly that they "sought to alter" it. In fact they leave completely unchanged the committee's draft without adding directly or taking away something. Between 1952 and 1970 there were five precedents7 on amendments proposing to add a text to that of the committee but they were either referred to committee before being put to the vote or withdrawn. However, on 1 February 1980 (27th Sitting) and on 27 January 1987 (23rd Sitting) such amendments were adopted.
6. On 31 January 1990 (25th Sitting) when an amendment was presented proposing a separate draft recommendation to be added to the committee's draft, several Assembly members considered that:
—th is amendment corresponded in all respects to what was usually called a motion for a recommendation;—
—su ch an important point could not be treated in such a manner and be submitted in a virtually clandestine fashion;—
—it would have been better to have been given appropriate reasons in the form of a report.7.
7. In conclusion, from the three types of amendments mentioned in paragraph 6 above, those aiming at adding merely a draft text to that of the committee have mainly been the subject of criticism with a view to their admissibility.
ii. Majority required and vote on the text as a whole in the case of an amendment comprising a draft text (in particular a draft recommendation or opinion)
8. Obviously, a problem only arises in the case of amendments comprising a draft recommendation or opinion, because in accordance with Rule 36c of the Rules of Procedure any resolution (or order) only requires a majority of the votes cast.
9. Assembly practice with regard to the majorities required for amendments constituting complete draft recommendations varied up to 1986. On 26 September 1983 (9th Sitting), for example, an amendment tabled sought to replace a draft recommendation from the Committee on Science and Technology with another draft recommendation. The President of the Assembly called for a show of hands on the amendment without explicitly requiring a two-thirds majority.
10. Since February 1986, when the Assembly has had to vote on alternative drafts or counter-proposals presented as amendments, the President of the sitting has, with one exception, always declared that a two-thirds majority was required. On 27 January 1987 (23rd Sitting), for example, the President pointed out that "as the second part of this amendment proposes to supplement the committee's draft resolution with a draft recommendation, its adoption requires a two-thirds majority of the votes cast".
11. It should be recalled also that the "vote on the text as a whole" (final vote) is mentioned in Rule 28, paragraph 4 of the Rules of Procedure, in the context of "explanations of votes" presented by members, in Rule 30, paragraph 9, which deals with amendments or sub-amendments referred to committee, in Rule 45 (10) concerning procedure in committee and in the provisions relating to the organisation of debates (paragraph 1a, p. 88 of the Rules of Procedure, 1994 edition).
12. Since 1969, the Assembly has, with a few rare exceptions (for example on 24 September 1986), avoided holding votes "on the draft as a whole" after votes on amendments constituting a draft text. Adopting such an amendment was tantamount to adopting a recommendation, resolution or order, as appropriate. The President of the sitting would therefore declare, after the amendment had been passed:
— ei ther "the whole of the draft resolution contained in Amendment No. 9 is agreed (Resolution 512)" (25 January 1972),—
—or "I would remind you that, since it replaces a draft recommendation, this amendment requires a majority of two-thirds of the votes cast for its adoption. ... Since the requisite majority has been obtained, the draft recommendation as amended, is adopted." (2 February 1989).Ob
Obviously, other similar wordings have been used.8
13. In practice there have been no recent problems with amendments merely changing the category of a draft text (for example, from a resolution into a recommendation) as they are not completely replacing the competent committee's initial draft text. Of course, when their admissibility was considered, care was taken to ensure that the conditions for a draft recommendation or resolution were fulfilled (see Rule 27 and the footnote thereto).
14. Concerning amendments proposing new draft recommendations to be added to that of the committee, the Assembly's practice varied before 1981.9 Since 1987 however, a two-thirds majority was required for such amendments and no vote took place on the text as a whole. But it should be stressed that between 1952 and 1990 only two such amendments were put to the vote.10 In all other instances they were referred to committee under Rules 33 (1d) and 30 (9) or withdrawn.
15. A list of examples of precedents involving amendments (1949 to 1995) was appended to document AS/Pro (1995) 12.
Reporting committee: Committee on Rules of Procedure.
Budgetary implications for the Assembly: none.
Reference to committee: Bureau decision of 1 July 1994 (see progress report of the Bureau and the Standing Committee, Doc. 7159, paragraph 21).
Draft resolution adopted by the committee on 26 September 1995.
Members of the committee: Sir Anthony Durant (Chairman), Mrs Lentz-Cornette, Mr Rewaj (Vice-Chairpersons), Mrs Aguiar, MM. Alloncle, Cummings, Djerov, Endzins, Fenech, Mrs Fernandez Ramiro, Lord Finsberg (Alternate: Baroness Gould of Potternewton), MM. Gabrielescu, Galanos (Alternate: Christodoulides), Gjellerod, Mrs Holand, MM. Korkeaoja, Lorenzi, Loukota, Magnusson, Marten, Maruflu, Masson, Molnár, Proriol, Prokeš, Pukl, Mrs Ragnarsdóttir, MM. Rhinow, Rokofyllos, Schieder, Schloten, von Schmude, Selva, Soldani, Thissen, Wallace, Zijlstra.
N.B. The names of those members who took part in the vote are printed in italics.
Secretary to the committee: Mr Heinrich.
1 1By the Committee on Rules of Procedure.
2 2The whole of a text is the complete draft recommendation, opinion, resolution, or order submitted to the vote of the Assembly or the Standing Committee. There may be cases where an amendment formally speaking does not entirely replace a draft text but in substance does. It is up to the President to declare such an amendment admissible or not (Rule 30 (4)). The Committee on Rules of Procedure considers that in any case an amendment should not replace all points (sub-points) nor the great majority of the operative part of a draft text unless it consists of a single point.
3 1See also D.W.S. Lidderdale's report on amendments published in No. 36 (1958) of Constitutional and Parliamentary Information pp. 214 to 226 and, particularly, p. 220, admissibility and discussion of amendments.
4 2See in this connection the amendment by Lord Listowel of 27 November 1967 aiming at transforming the committee's draft resolution into a draft recommendation, which was approved (Official Report, 1967, pp. 489, 492); your rapporteur should also like to mention that he has no knowledge of cases of amendments seeking to replace a draft opinion to the Committee of Ministers, prepared by the competent committee.
5 3A list of precedents was published in Appendix II to document AS/Pro (1995) 12.
6 1Or to request the reference back to committee of the report including the initial draft text (Rule 33 (1d)).
7 1 23 September 1953, official report pp. 559 to 563; 9 and 11 December 1954, pp. 1054 to 1056; 22 and 23 October 1956, pp. 640 to 645 and 730 to 738; 7 and 8 May 1963, pp. 161 and 172; 29 January 1970, pp. 1040 to 1042; see also the special case of the amendment tabled by Mr Sandys on 12 May 1951, before the opening of the general discussion (Official Report, p. 290).
8 1On 7 May 1976 (7th Sitting), for example, when the "counter-proposal" amendment was regarded as a draft text, the President of the Assembly said: "There is no real amendment to it because Amendment No. 1 is practically a new draft resolution and Sub-Amendment Nos. 1 and 2 are practically amendments to the new resolution ... We now come to the second draft resolution in the form of Amendment No. 1 to Document 3782 ... The draft resolution contained in Amendment No. 1 to Document 3782, as amended, was agreed to unanimously ... It will be published as Resolution 628" (AS (28) CR 7, pp. 270 to 272).
9 1For example, on 22 October 1956 (verbatim report p. 645) the President said that such an amendment required a two-thirds majority; on 1 February 1980 the amendment was adopted with a simple majority (verbatim report, p. 959).
10 2On 1 February 1980 (27th Sitting) and on 27 January 1987 (23rd Sitting).