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Resolution 2126 (2016)
The nature of the mandate of members of the Parliamentary Assembly
1. The Statute of the Council of Europe
(ETS No. 1) and the Rules of Procedure of the Parliamentary Assembly,
which define and govern the competences of Assembly bodies and parliamentary
procedures, say nothing about the status of members of the Assembly
and the nature of their mandate, and merely specify that the members
of the Assembly are elected within the national or federal parliament
or appointed from among their members (Article 25 of the Statute
of the Council of Europe and Rule 6 of the Assembly’s Rules of Procedure).
2. Since international organisations are instruments of co-operation
between States, it is generally recognised that their statutes govern
relations between the organisation and its member States. It is
therefore clear that, because of the actual legal nature of the
instrument founding the Council of Europe, the members of the Assembly
are considered not as individual “subjects of law”, but in terms
of their membership of one of the Organisation’s two statutory bodies:
as “Representatives to the Assembly”, they enjoy the protection
of a specific European statutory and treaty-based system of immunities.
3. The Rules of Procedure, supplemented by complementary texts,
also comprise several provisions relating to the guarantees and
rights, but also obligations, governing the exercise of their European
mandate.
4. The members of the Assembly sit as members of a national delegation,
but also, where the great majority of them are concerned, in respect
of a political group to which they have declared their affiliation.
As national elected representatives, parliamentarians are mandated
by their electorate to act in the general interest, albeit with
respect for the political values professed by their political party.
As members of the Assembly, they undertake to adhere to the fundamental
objectives and principles of the Council of Europe (Rule 6.2 of
the Rules of Procedure) and, to the extent that they are affiliated
to one of the five political groups of the Assembly, to promote
the group’s objectives, values and principles.
5. In accordance with the principle of representative democracy,
in Europe national parliamentarians have a representative mandate
which has the distinction of being general, free and irrevocable,
and implies freedom of action, opinion and expression and an individual
right to vote. The constitutional or legislative provisions governing
the functioning of the parliamentary system in Council of Europe
member States highlight the non-binding or conditional nature of
the mandate; in other words, from a legal viewpoint, elected representatives enjoy
absolute independence vis-à-vis both their electorate and their
party. Parliamentarians are considered able to exercise their mandate
freely and not be bound by any undertakings given before their election
or instructions received during their mandate: they are not bound
by instructions from their voters and are not obliged to follow
the instructions of their party.
6. In theory, parliamentarians are free to make their own decisions,
as expressed through the votes they cast, and are not obliged to
support the position of their political party or group in parliament,
honour their pledges to it or vote as their parliamentary group
directs. In parliamentary practice, the principle that mandates are
independent and irrevocable is clearly waning in the face of party
discipline and compliance with voting instructions, an inescapable
feature of how parliamentary institutions operate today. The importance
of the party system rests firstly, at the pre-election stage, on
the process of nominating candidates and secondly, after the election,
on the freedom of parties and groups to expel members whose conduct
is disloyal or damaging to the party or group concerned.
7. There is, then, a kind of “imperative mandate” that currently
thrives in parliamentary institutions, through the threat of suspension
or expulsion from one’s political party or group, with the pressure
placed on parliamentarians leading them to resign or face sanctions.
8. The Assembly points out that, notwithstanding the provisions
of Rule 6 of its Rules of Procedure ensuring compliance with the
principles of fair political representation and gender equality,
the composition of national delegations and the appointment or replacement
of their members are a matter for national parliaments, in accordance
with their internal procedures. The same applies to the participation
of members in sessions of the Assembly or meetings of its committees.
9. The Assembly notes that, in the last few years, irregularities
have occurred in Assembly delegations, often bringing to light gaps
and shortcomings in the rules of procedure of the national parliaments
concerned. In particular:
9.1. the
rules of procedure of national parliaments have sometimes been questioned
for the way that they can serve as a legal front for measures imposing
a disguised sanction founded on a political motive, particularly
where delegation members are replaced on the pretext of individual
resignations or an overall renewal of membership following elections;
9.2. the rules of procedure of national parliaments are reported
to have been misused to restrict travel or prevent the participation
of a delegation member in a part-session or an Assembly committee
meeting.
10. It also expresses its profound concern at the serious infringements
of the independence and freedom of expression of some of its members
or now former members, who have been the target of disguised sanctions on
the part of the parliament or their national political party.
11. In this connection, the Assembly firmly points out that the
European Court of Human Rights (the Court) attaches the utmost importance
to freedom of expression in the context of political debate, and
affords enhanced protection to it, by establishing in its case law
the principle of the free expression of parliamentarians as a sine qua non for their independence
in the discharge of their mandate. The Court considers it essential, in
a democratic society, to “defend freedom of political debate, which
is at the very core of the concept of a democratic society”.
12. Moreover, the Assembly considers that although, at national
level, party discipline is a prerequisite for stable parties and
party coalitions and the effectiveness of their policy, such considerations
are less relevant when it comes to promoting within the Parliamentary
Assembly the aims and basic principles of the Council of Europe
and collaborating “sincerely and effectively” in the promotion of
“ideals and principles which are the [Europeans’] common heritage”.
13. The Assembly considers that its members should enjoy a status
comprising recognition of minimum guarantees in the exercise of
their European mandate, and that there is a need to promote a certain
number of principles based on a proper balance between freedom of
opinion and parliamentary votes and respect for the political obligations
that flow from membership of a political party or group. It calls
on national parliaments and their delegations to the Assembly to
recognise and take due account of the following general principles, which
should regulate the conditions under which the Assembly mandate
is exercised:
13.1. with regard to
the guarantees and rights enjoyed by Assembly members:
13.1.1. Assembly
members exercise their mandates freely and independently; they are
not bound by any instructions from their delegation, their national
political party or their political group in the Assembly;
13.1.2. Assembly members express their opinions freely, whether
through their statements, speeches or votes, in all their activities
in the Assembly and its various bodies, while complying with Rule
22 of the Rules of Procedure and rules of conduct in the Assembly;
13.2. with regard to the duties of Assembly members:
13.2.1. Assembly members shall act in accordance with the Rules
of Procedure and rules of conduct; they participate in a responsible
and constructive manner in the Assembly’s work;
13.2.2. Assembly members have a duty of accountability to their
delegation, their national political party and their political group
in the Assembly; they act in compliance with the principles of transparency,
honesty, integrity and trust.
14. Recalling Resolution
1640 (2008) on the use by Parliamentary Assembly members
of their dual parliamentary role – both national and European, the
Assembly urges national parliaments to review their rules of procedure
and their practice relating to the participation of delegations
in Assembly sessions and the meetings of Assembly committees and
other bodies, and calls on them to revise any provisions which hinder the
effective participation of members in the activities of the Assembly,
in particular of substitutes when they are assigned specific functions
in the Assembly and its committees.
15. In this connection, the Assembly points out that, under both
the Statute of the Council of Europe (Article 25) and its own Rules
of Procedure (Rule 11), following parliamentary elections, the members
of the Assembly remain full members until the parliament concerned
makes new appointments. Consequently, parliaments are obliged to
authorise their participation in the activities of the Assembly
until they have seen to their effective replacement. The Assembly
calls on the national parliaments concerned to change the rules
prohibiting the participation of delegation members when parliament
has been dissolved or, following elections and pending the appointment
of a new delegation, the participation of those members who have
not sought re-election or not been re-elected.
16. Finally, the Assembly calls on the Congress of Local and Regional
Authorities of the Council of Europe to review the status of local
and regional elected representatives in Europe, in particular the
question of the revocation of their mandate.