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A. Draft resolution
(open)
Report | Doc. 14077 | 06 June 2016
The nature of the mandate of members of the Parliamentary Assembly
Committee on Rules of Procedure, Immunities and Institutional Affairs
Summary
In Council of Europe member States, national parliamentarians have a representative mandate which has the distinction of being general, free and irrevocable. They are considered to be able to exercise their mandate freely and not be bound by any undertakings, orders or instructions from their voters or issued by their party or political group in the parliament.
This report takes stock of the conditions governing the exercise of the parliamentary mandate, with the focus on the issue of parliamentarians’ independence and freedom of expression (and their limits), more specifically in terms of the nature of their relationship with the political parties. Party discipline is an inescapable feature of how parliamentary institutions operate today, which may lead to a kind of “imperative mandate”, through pressure exerted on parliamentarians and threats of sanctions.
In the last few years, irregularities occurred in some Parliamentary Assembly delegations, bringing to light gaps and shortcomings in the internal regulations, or current practices, of the national parliaments concerned regarding the appointment of national delegations, the composition of committees and the participation of their members in Assembly sessions and committee meetings. In the exercise of their Assembly mandate, members should enjoy the protection of a status comprising recognition of a number of general principles.
A. Draft resolution 
(open)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. International organisations being instruments of co-operation
between States, it is common ground 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, firstly, 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 to be able to exercise
their mandate freely and not be bound by any undertakings given
before their election or instructions received from voters 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” operating 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
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 often been implicated
in 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 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 condition 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.
B. Explanatory memorandum by Ms Nataša Vučković, rapporteur
(open)1. Introduction
1. In recent years, some Parliamentary
Assembly members have more and more openly voiced concerns over
pressures put on them in their national delegation, their national
parliament, their political party or their Parliamentary Assembly
political group.
2. The Committee on Rules of Procedure, Immunities and Institutional
Affairs, for example, has discussed several cases of political pressure
being exerted on Assembly members, disclosing two types of abuse
in particular:
- misuse of the rules of procedure of national parliaments to restrict travel or prevent the participation of a delegation member in a part-session or an Assembly committee meeting;
- politically motivated replacement of members of delegations which, on the pretext of individual resignations or an overall renewal of membership, might reveal a sanction in disguise.
3. At its meeting on 1 October 2013, the Committee on Rules of
Procedure discussed the limits on the independence of the mandate
and freedom of expression of members of the Assembly and concluded that the issue merited
further study. At the committee’s request, on 27 January 2014 the
Assembly asked the committee to prepare a report on “The nature
of the mandate of members of the Parliamentary Assembly”.
and concluded that the issue merited
further study. At the committee’s request, on 27 January 2014 the
Assembly asked the committee to prepare a report on “The nature
of the mandate of members of the Parliamentary Assembly”.4. The concerns raised are more precisely illustrated by the
following examples:
- During the April 2013 part-session, the Assembly held a debate on the challenge to the as yet unratified credentials of a member of the Ukrainian delegation who had been appointed to replace Mr Sergiy Vlasenko, the latter having been stripped of his national parliamentary mandate under a judicial decision which may have been politically motivated.
- At the same part-session, the Monitoring Committee discussed a motion to open a monitoring procedure in respect of Hungary, on the basis of a draft opinion prepared by two co-rapporteurs, but in the absence of one who resigned on the eve of the meeting.
- The head of the Slovenian parliamentary delegation complained to the President of the Assembly about having been subjected to “considerable political pressure” in Slovenia, after a speech she made in the debate on “Corruption as a threat to the rule of law” during the June 2013 part-session.
- In November 2013, the EPP/CD Group alerted the Committee on Rules of Procedure to events taking place in the Armenian Parliament which were liable to threaten the fair representation of political parties within the Armenian parliamentary delegation as well as the participation of one of its members in the Assembly’s activities. Indeed, the parliamentarian in question was not reappointed to the Armenian delegation for the 2014 session.
- In January 2014, the departure and replacement of several key members of the Turkish parliamentary delegation, including its chairperson, gave rise to speculation in the context of the 2013 mass anti-government protests.
- At the November 2015 meeting of the Standing Committee, the as yet unratified credentials of the United Kingdom parliamentary delegation were challenged on the ground that three Conservative MPs belonging to the outgoing delegation had been excluded from the new delegation, following the direct intervention of the Prime Minister, for having failed to toe the government line in a vote in the House of Commons.
- In March 2016, a rapporteur for the Committee on Legal Affairs and Human Rights who was a member of the Macedonian parliamentary delegation was denied permission by her parliament to travel to Paris, two days before the meeting.
5. From an internal, Parliamentary Assembly perspective, what
is clearly at stake in these various cases is members’ effective
participation in Assembly proceedings and committees. From a broader
perspective, it is Assembly members’ freedom of expression that
is in jeopardy. In a democracy, parliamentarians’ freedom of expression
is a condition sine qua non for
their independence in the discharge of their mandate.
6. Ultimately, there is a need to consider the issue of parliamentarians’
independence and accountability, and, more specifically, the nature
of their relationship with the political parties, on the one hand,
and with citizens or voters on the other. The focus of this report
ought to be widened, therefore, to include the functioning of national
parliaments. A closer analysis of the conditions under which the
parliamentary mandate is exercised thus requires preliminary consideration
of the key issue of the nature of that mandate.
2. The mandate of Parliamentary Assembly members
2.1. General points
7. Unlike members of the European
Parliament, who are elected by direct universal suffrage, the parliamentarians
sitting in the Parliamentary Assembly of the Council of Europe –
and in the other inter-parliamentary institutions – are elected
in the national or federal parliaments or appointed from among the members
of the latter (Article 25 of the Statute of the Council of Europe
(ETS No. 1) and Rule 6 of the Rules of Procedure of the Assembly).
The composition of national delegations and the appointment or replacement of
their members is a matter for the national parliaments, in accordance
with their internal procedures.
8. Quite logically, given the basis for the representative function
of the European Parliament, Rule 2 of its Rules of Procedure on
the independent mandate stipulates at the outset that “[m]embers
of the European Parliament shall exercise their mandate independently.
They shall not be bound by any instructions and shall not receive
a binding mandate”, whereas the Rules of Procedure of the Parliamentary
Assembly, like the Statute of the Council of Europe, do not, any
more than the rules of procedure of the other parliamentary co-operation
institutions, define the nature of Assembly members’ mandate.
9. Consequently, analysing the nature of the mandate of members
of the Parliamentary Assembly presupposes referring to the regulations
applicable to them as national parliamentarians (free mandate of
a representative nature or binding mandate; professional or non-professional
mandate; general mandate or otherwise), as specified by their countries’
constitutions or in a legislative provision or regulation (see chapter 3 below).
10. The members of the Parliamentary Assembly sit not only 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 – and that the rules of procedure or statute of the
group (where they exist) so provide – to promote the group’s objectives,
values and principles (see chapter 2.4
below).
(see chapter 2.4
below).11. As one national parliamentarian succinctly put it during a
seminar organised by the Inter-Parliamentary Union in 2005, “in
order to carry out our functions, we must be able to freely express
ourselves without fear of reprisal from any quarter. That is a condition sine qua non for ensuring the independence
of the parliament itself and the separation of powers. … However,
… freedom of expression, which every parliamentarian must enjoy,
can be seriously limited by party discipline, which may involve
sanctions, even including the loss of the parliamentary mandate.
Party discipline may have the effect of preventing parliamentarians
from speaking on behalf of their constituents”.
2.2. Existing rules in the Parliamentary Assembly
12. The Statute of the Council
of Europe States that the Assembly “shall consist of representatives
of each Member [State], elected by its parliament from among the
members thereof, or appointed from among the members of that parliament,
in such manner as it shall decide” (Article 25); additionally, the
Assembly Rules of Procedure specify that “the representatives and
substitutes appointed by the national parliaments of each member
State shall form national delegations” (Rule 18), themselves “composed
so as to ensure a fair representation of the political parties or
groups in their parliaments” (Rule 6), and that representatives
and substitutes “may form political groups” which “shall commit
themselves to respect the promotion of the values of the Council
of Europe, notably political pluralism, human rights and the rule
of law” (Rule 19). The Rules therefore recognise a threefold relationship
of every Assembly member towards his/her national State, through the
parliamentary institution, his/her Assembly political group and
his/her national political party.
13. As to committee appointments, these are the sole responsibility
of the national delegations (Rules 44.2 and 44.5) – as least for
six of the nine committees – and if disputed, nominations are referred
to the national delegation concerned.
2.3. Regulatory provisions in national parliaments
14. The irregularities reported
in the Assembly delegations often bring to light the gaps and shortcomings
of the rules of procedure of the national parliaments concerned.
These should therefore be examined rather more closely, particularly
as regards the appointment of the national delegations, the composition
of committees and participation in the proceedings. Indeed, when
delegations’ credentials have been challenged, the rules of procedure
of the national parliaments have often been implicated in that they
can serve as a legal front for measures imposing a disguised sanction
founded on a political motive, particularly where the replacement
of a member is concerned.
15. Besides the rules of appointment of delegations, it is also
important to take stock of the rules on their members’ participation
in Assembly sessions and meetings of its committees. In fact, the
rules – or more straightforwardly the practice – of many parliaments
ordain that only representatives in the Assembly (and full committee
members) are entitled to participate in sessions and committee meetings,
and are covered financially. Many substitutes in the Assembly belong
to opposition parties, however, and, under these rules, have little
opportunity to travel to Strasbourg. Further consideration should
therefore be given to the question of how far national parliaments’
regulations or practices regarding the rights of substitutes to
attend Assembly sessions and committee meetings conform to or clash
with the Statute of the Council of Europe and the Assembly’s Rules
of Procedure.
16. Where committees are concerned, the existence of such rules
governing parliamentarians’ participation and defrayal of expenses
raises the question of the rules possibly being used for political
ends, given that appointments to committees can be made to the detriment
of the opposition parties whose members would seem to be mainly
assigned positions as substitutes. Making an appointment to a delegation,
in the same way as to the committees, can thus be a way for the
ruling political majority to control the opposition.
17. In view of their importance for the proper functioning of
the Assembly, these questions are dealt with in a separate report
of the Committee on Rules of Procedure on the effective representation
and participation in the Parliamentary Assembly of opposition parliamentarians
in the member States.
18. In the framework of this report in preparation, a questionnaire
was sent out to national delegations, in July 2015, on the existing
rules and practices followed in national parliaments concerning
the formation and functioning of delegations. The replies sent by
25 national delegations to the Assembly help gain a more detailed
insight into the existence of rules and practices which may lead
to abuses.
19. Effective participation in the Parliamentary Assembly’s activities
is governed more by practice than by rules of procedure in parliaments
(except in Belgium, Denmark and Latvia).
20. The decision may be taken on a collegial basis by the delegation:
this applies in San Marino, Malta (but subject to the agreement
of the Speaker of Parliament) and Lithuania (the delegation draws
up an annual travel programme, but the agreement of the delegation
chairperson is decisive). Participation of members may depend on
the decision of a parliamentary body (Steering Committee in the
Czech Republic, Presidium in Latvia on the proposal of the delegation
chairperson, the Board of the Seimas in Lithuania, the Speaker of
the Assembly in “the former Yugoslav Republic of Macedonia”, the
Collegium of the President in Montenegro); in Liechtenstein, the
delegation decides for part-sessions, while the Bureau decides for
committees; in Poland, the chairperson of the delegation decides
on the participation of delegation members in the activities of
the Assembly and its committees.
21. In several parliaments, the decision lies with the speaker:
in Austria (in line with the Rules of Procedure and practice); in
Germany (under the guidelines for travel, and subject to approval
of the member’s parliamentary group; in the case of meetings held
when the Bundestag is in session, members’ participation is conditional
upon their agreement to return to Berlin for important votes); in
Greece and Ukraine (under the Rules of Procedure). In some cases,
the delegation chairperson decides (Serbia). Lastly, in some other parliaments,
members are free to decide their own activities (Belgium, France
(without prior authorisation), Italy, Netherlands, Slovenia and
Switzerland).
22. In practice, in Denmark, France and the Netherlands, all delegation
members, whether representatives or substitutes, are allowed to
take part in the part-sessions and the meetings of the committees
of which they are members. Participation in part-sessions is possible
only for representatives and the substitutes replacing them (Italy
and Serbia). Participation in committees is possible for full members
and alternates in the absence of the full members (Austria) or only
when the committees meet in Strasbourg (Finland), unless the members are
committee chairs or rapporteurs (Serbia).
23. The Committee on Rules of Procedure is aware of the budgetary
problems with which several parliaments continue to contend and
which directly affect the travel arrangements of members of their delegations.
Several delegations acknowledge that for some years they have restricted
the number of their representatives during part-sessions to the
number of seats held, and
some have reported that they no longer send substitutes to sit in
the Assembly or its committees.
and
some have reported that they no longer send substitutes to sit in
the Assembly or its committees.2.4. Membership of political groups
24. As has been mentioned, representatives
and substitutes in the Assembly “may form political groups”. The
rules of procedure and statutes of the political groups determine
the conditions of membership of groups and, in some cases, suspension
and exclusion from them:
- For instance, the Socialist Group in the Assembly “consists of members [who belong to a party having official status with the Socialist International] and associate members [who belong to another party or to no party]”. Any member of the group may be temporarily suspended if his/her conduct “repeatedly violates the standards decided by the … Group”, and he/she may be excluded if he/she “continues to behave in a manner contrary to the standards of conduct decided by the Group” (Article II of the Statutes).
- Members of the European People’s Party Group (EPP/CD) must be members of a member, associated member or observer party of the EPP or undertake to fulfil their mandate in accordance with the aims and values promoted by the Group (Article 4).
- The Alliance of Liberals and Democrats for Europe (ALDE) is open to members of the Parliamentary Assembly “who are members of a political party affiliated to the European Liberal Democrat and Reform Party (ELDR) or the Liberal International (LI). Other representatives and substitutes, whose political action subscribes to the same values, may be admitted to the Group …”.
- The rules of procedure of the European Conservatives Group (EC) are currently being revised. According to the previous rules, any member of the Parliamentary Assembly who wished to join this Group was required to accept its aims, objectives, constitution and rules.
- The Statute of the Unified European Left Group (UEL) states that Assembly members wishing to join the group must agree to respect the Statute (Article 6); they may be suspended or dismissed (Article 10) if they do not act in accordance with the fundamental objectives, values and principles of the Group as stipulated in Article 2 (to promote and protect human rights, the rule of law and democracy) or do not fulfil the obligations incumbent on members.
3. The national mandate of Parliamentary Assembly members
3.1. General points
25. The question of the nature
of parliamentary mandates is discussed in a major global comparative
study on the subject published by the Inter-Parliamentary Union
in 2000. Its author, Marc Van der Hulst,
asserts that the imperative mandate – which is regarded by its advocates
as the more progressive and democratic form because it stems directly
from the theory of popular sovereignty – has now become the exception,
whereas the free representational mandate – in which elected representatives
are entirely independent and exercise their mandates freely – has
become the rule. The European Commission for Democracy through Law
(Venice Commission) notes, in a report on the imperative mandate
and similar practices, that
liberal democratic thinking established the principle of representative
democracy and its concomitant antagonism with imperative mandate,
which is seen as being incompatible with democracy.
Its author, Marc Van der Hulst,
asserts that the imperative mandate – which is regarded by its advocates
as the more progressive and democratic form because it stems directly
from the theory of popular sovereignty – has now become the exception,
whereas the free representational mandate – in which elected representatives
are entirely independent and exercise their mandates freely – has
become the rule. The European Commission for Democracy through Law
(Venice Commission) notes, in a report on the imperative mandate
and similar practices, that
liberal democratic thinking established the principle of representative
democracy and its concomitant antagonism with imperative mandate,
which is seen as being incompatible with democracy.26. However, in its report on Democracy, Limitation of Mandates
and Incompatibility of Political Functions, the
Venice Commission points out that democracy, which is based on the
political principle of representation, links the representatives
and the represented in such a way that the people’s interests are secured
and the people’s views are articulated. “In a democracy, politicians
are accountable first and foremost to the citizens who elect them,
though often the links are tenuous. … politicians elected under
systems where citizens vote for party lists rather than individual
representatives tend to be accountable first to their party leadership,
and only secondarily to citizens, and, third, officials appointed
to leadership positions by the government in power may feel they
owe their allegiance to political decision-makers, with only a distant
or diffuse sense of accountability to citizens.” The Venice Commission
notes that “in a number of democratic countries, in spite of a really
pluralistic environment, the influence of party machinery and control
by the party elite is increasing” and points out that questions
remain such as “what do elected people represent and when can we
really say that those who were elected truly represent those who
elected them?”
the
Venice Commission points out that democracy, which is based on the
political principle of representation, links the representatives
and the represented in such a way that the people’s interests are secured
and the people’s views are articulated. “In a democracy, politicians
are accountable first and foremost to the citizens who elect them,
though often the links are tenuous. … politicians elected under
systems where citizens vote for party lists rather than individual
representatives tend to be accountable first to their party leadership,
and only secondarily to citizens, and, third, officials appointed
to leadership positions by the government in power may feel they
owe their allegiance to political decision-makers, with only a distant
or diffuse sense of accountability to citizens.” The Venice Commission
notes that “in a number of democratic countries, in spite of a really
pluralistic environment, the influence of party machinery and control
by the party elite is increasing” and points out that questions
remain such as “what do elected people represent and when can we
really say that those who were elected truly represent those who
elected them?”27. In 2014, in connection with a report on “Post-electoral shifting
in members' political affiliation and its repercussions on the composition
of national delegations”, the Committee on Rules of Procedure looked
at the nature of the relationship between parliamentarians and political
parties, through the phenomenon of switches in political affiliation
and their consequences in national parliaments, with respect, in particular, to
the requirements of transparency, integrity, accountability and
trust on which the contract between elected members and voters is
based. The replies received from national parliaments to a questionnaire
sent out in preparation for the report through the European Centre
for Parliamentary Research and Documentation (ECPRD) provide useful
information on current provisions regarding the nature of elected
representatives’ mandate in national parliaments.
with respect, in particular, to
the requirements of transparency, integrity, accountability and
trust on which the contract between elected members and voters is
based. The replies received from national parliaments to a questionnaire
sent out in preparation for the report through the European Centre
for Parliamentary Research and Documentation (ECPRD) provide useful
information on current provisions regarding the nature of elected
representatives’ mandate in national parliaments. 28. Forty replies to the request were received from 36 national
parliaments, providing
information on constitutional and legislative provisions, regulations
(such as the rules of procedure of political parties) and political
or parliamentary practices or traditions relating to the nature
of the mandate of elected representatives (representative or imperative
mandate) and who they represent in parliament (the people, the nation,
their political party, their constituency).
providing
information on constitutional and legislative provisions, regulations
(such as the rules of procedure of political parties) and political
or parliamentary practices or traditions relating to the nature
of the mandate of elected representatives (representative or imperative
mandate) and who they represent in parliament (the people, the nation,
their political party, their constituency).3.2. General features of parliamentary mandates
29. 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. They are not bound by
any orders or instructions received from voters or any undertakings
given during the election campaign, and are under no obligation
to follow instructions issued by their party. They are not accountable
to those who appointed them. As Mark Van der Hulst points out in
his aforementioned study, however, “the free representational mandate
is not, per se, a sufficient guarantee of the democratic functioning of
a parliamentary system”. For while, in theory, the legal rules that
govern the functioning of institutions demand that parliamentarians
discharge their mandate in an independent and unhindered fashion,
in practice, the discharge of the mandate is strictly supervised
by the political parties and conditioned by parliamentary mechanisms
and procedures. Electoral procedures, whatever their form, ensure
that only candidates who run under a party banner and have the logistical
and financial backing of a party have a chance of being elected. As
a result, parliamentarians find themselves bound to toe the party
line, even if it sometimes conflicts with their personal beliefs,
and are bound to submit to the parliamentary discipline imposed
by their party.
3.2.1. Representative mandate: general, free and irrevocable
30. The constitutional or legislative
provisions governing the functioning of the parliamentary system
in member or observer States of the Council of Europe highlight,
firstly, the non-binding or conditional nature of the mandate. Mandates are representational,
in other words, from a legal viewpoint, elected representatives enjoy
absolute independence vis-à-vis their electorate. Parliamentarians
are considered to be able to exercise their mandate freely and not
be bound by any undertakings given before their election or instructions
received from voters during their mandate. They may not defend special
interests.
Mandates are representational,
in other words, from a legal viewpoint, elected representatives enjoy
absolute independence vis-à-vis their electorate. Parliamentarians
are considered to be able to exercise their mandate freely and not
be bound by any undertakings given before their election or instructions
received from voters during their mandate. They may not defend special
interests.31. In virtually all member and observer States of the Council
of Europe, imperative mandates are expressly prohibited, usually
by the constitution (Andorra, Armenia, Austria, Belgium, Bulgaria,
Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Hungary, Italy, Lithuania, Luxembourg, Netherlands, Poland, Romania,
Slovak Republic, Slovenia, Spain, Switzerland). The Portuguese Constitution
merely states that “deputies shall exercise their mandates freely”,
while under the German Basic Law, members of the Bundestag may not
be bound by any orders or instructions and must act according to
their conscience. A
similar form of words can be found in the Constitutions of the Slovak
Republic, the Czech Republic, Denmark, Greece, Lithuania and “the
former Yugoslav Republic of Macedonia”. The Armenian Constitution,
for example, states that “deputies shall be guided by their conscience
and convictions”, while the Finnish Constitution further stipulates
that “in performing his/her duties a representative shall be bound
to serve the interests of justice and truth”.
A
similar form of words can be found in the Constitutions of the Slovak
Republic, the Czech Republic, Denmark, Greece, Lithuania and “the
former Yugoslav Republic of Macedonia”. The Armenian Constitution,
for example, states that “deputies shall be guided by their conscience
and convictions”, while the Finnish Constitution further stipulates
that “in performing his/her duties a representative shall be bound
to serve the interests of justice and truth”.32. In Canada (federal level), Cyprus, Israel, Montenegro, Norway,
Sweden and Ukraine, no constitutional or legislative provisions
deal specifically with the nature of the mandate of elected representatives.
33. Parliamentary mandates are general in nature, meaning that
their holders, even though they were elected in a particular constituency,
represent, in principle, the community as a whole. Many constitutions explicitly
state that parliamentarians do not represent their electorate, their
constituency or the département for which
they are the elected representative but rather represent the nation
or the nation as a whole (Belgium, France, Greece, Italy, Lithuania,
Poland, Turkey), the people or the people as a whole (Finland, Germany, Netherlands,
Spain) or the country (Luxembourg) or the country as a whole (Georgia,
Portugal). In Romania, deputies are required “to serve the people”.
In a few rare countries, however, the constitution states that MPs represent
their constituencies (Ireland); in the United Kingdom, members of
the House of Commons are elected to represent their constituencies,
while remaining free to vote as they wish. The Bulgarian Constitution states
that MPs represent not only their constituencies but also the nation
as a whole. Bosnia and Herzegovina is unusual in that, in the absence
of any constitutional provision, the electoral law provides that
“a mandate belongs to the elected office holder and not to the political
party, coalition or list of independent candidates”. Given the actual
manner in which they are elected, however, members of the House
of Representatives do in fact represent their political party and
citizens, while persons elected to the House of Peoples represent
their entity as well as the constituent ethnic groups.
34. Lastly, the parliamentary mandate is irrevocable and ends
on its statutory expiry date. A specific provision to this effect
may be included in the constitution (Article 52 of the Georgian
Constitution, Article 81 of the Ukrainian Constitution, for example).
Elected representatives are accountable for the manner in which
they discharged their mandate and risk losing the support of their
voters when they come up for re-election.
35. It follows from the principle that imperative mandates are
prohibited that parliamentarians are free to exercise their mandates
as they see fit and that these mandates may not be revoked. In many
States, the constitution expressly provides that the parliamentary
mandate is irrevocable. Parliamentarians may not be divested of
their mandate by parliament, their political party or citizens.
The Republic of Serbia is an exception, since under the terms of
the Statute of Deputies, a deputy is free to irrevocably place his/her
term of office at the disposal of the political party upon whose
proposal he/she was elected as a deputy.
36. In a number of member States, the constitutional courts have
ruled on the nature of the parliamentary mandate, pointing out that
elected representatives do not have a binding mandate and cannot
be recalled, in particular by the
electorate or
by their party.
in particular by the
electorate or
by their party. 37. Parliamentary mandates come with a number of rights, but also
obligations. Parliamentarians enjoy special protective status, to
ensure that they have the independence and freedom of expression
they need to exercise their mandate. This special protection is
embodied in the principle of parliamentary immunities. The issue
of developments in the protection of the parliamentary mandate in
member States’ national parliaments, and possible challenges to
the system of immunities in some countries, is discussed in a separate
Rules Committee report, which provides further analysis essential
for an understanding of the nature of the parliamentary mandate.
3.2.2. The limits of parliamentary independence: allegiance to the political party or group
38. While, in theory, parliamentarians
are free to make their own decisions, as expressed through the votes that
they cast, and are not obliged to support their political party’s
or group’s position in parliament, the fact remains that voting
instructions are an inescapable feature of how parliamentary institutions
operate today. Nothing in countries’ constitutions, legislation
or regulations requires parliamentarians to support their parties and
to honour their pledges to them, or to vote as their parliamentary
group directs. The importance of the party system in parliamentary
practice 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. The principle of free
mandate has effectively shifted, therefore, towards the idea that
mandates are limited by the parties.
39. Political parties may, however, include provisions in their
rules of procedure in order to institute a tie of allegiance or
party discipline and to punish breaches thereof by expelling the
members concerned (Andorra, Cyprus, Denmark, Estonia, Georgia).
40. In the majority of member States, the constitution – or other
legislation – provides that parliamentarians’ right to vote is to
be exercised in person (for example Article 27 of the French Constitution)
and cannot be delegated (for example Article 79 of the Spanish Constitution).
In current parliamentary practice, however, the principle that mandates
are independent and irrevocable is clearly waning in the face of
party discipline and compliance with voting instructions. No matter
what the constitutional provisions protecting the status of parliamentarians,
those who fail to abide by the decisions and principles of the parliamentary
group, and who refuse to comply with voting instructions, are liable
to be sanctioned. A parliamentarian’s conduct may result in his/her
expulsion from a political party or parliamentary group but under
no circumstances should it lead to the loss of his/her mandate.
There is, then, a kind of “imperative mandate” operating 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 switch political allegiance.
41. It will be observed here that while mandates cannot be revoked
in the national parliaments of member States – parliamentarians
who change political allegiance or become non-registered or independent
while in office remain in office until the end of their term –,
the same does not apply at regional or local level (for example in
certain Swiss cantons or Spanish regions). This issue could usefully
be explored by the Congress of Local and Regional Authorities of
the Council of Europe.
42. In order to grasp the reality of party discipline in how national
parliaments operate, we must ask ourselves whether and to what extent
parliamentarians today are still truly and effectively able to make decisions
freely and “in all conscience”. Another questionnaire sent out via
the ECPRD on free parliamentary votes and party discipline provides
some additional insight into the nature of the mandate of elected representatives
in national parliaments and their relationship with the political
parties. It appears from
this survey that, notwithstanding the constitutional safeguards
that allow parliamentarians to make decisions freely and shield
them from pressure, in practice, free votes are seldom authorised
by the political parties and whenever they are, it is on a purely
exceptional basis, in matters of a controversial or ethical nature.
The regulations or statutes of political parties rarely recognise
the principle of free suffrage. As a general rule, each political
party or group agrees on a collective position, to which the members
are then bound to adhere. This clearly raises the question of the
sanctions that are liable to be imposed on parliamentarians who,
through their vote, choose to take a different view.
It appears from
this survey that, notwithstanding the constitutional safeguards
that allow parliamentarians to make decisions freely and shield
them from pressure, in practice, free votes are seldom authorised
by the political parties and whenever they are, it is on a purely
exceptional basis, in matters of a controversial or ethical nature.
The regulations or statutes of political parties rarely recognise
the principle of free suffrage. As a general rule, each political
party or group agrees on a collective position, to which the members
are then bound to adhere. This clearly raises the question of the
sanctions that are liable to be imposed on parliamentarians who,
through their vote, choose to take a different view. 3.3. Political sanctions against parliamentarians
43. A new debate has recently emerged
in connection with legislative attempts to introduce mechanisms
for imposing disguised sanctions on national parliamentarians. One
example which may be mentioned is the law passed on 16 February
2016 by the Verkhovna Rada amending the law on the election of members
of the Parliament of Ukraine (Law 3700), which allows political
parties to change the order of candidates on their electoral list
in multi-member constituencies after the announcement of the election
results, and hence to exclude a candidate from the list. The Assembly’s
Monitoring Committee has decided to seek the opinion of the Venice
Commission on this law.
44. During its meeting in Rome on 17 May 2016, the committee held
a seminar on parliamentary accountability, whose discussions and
conclusions call for more detailed reflection on the nature of the parliamentary
mandate, in particular the notion of sanctions. This issue could
lead to a subsequent report by the committee.
4. Conclusions
45. The purpose of this report
is not to assess the state of representative democracy in Europe
but, more simply, to consider the reality of the parliamentary function,
through the conditions of office for elected representatives, both
on a general level – the functioning of national parliaments – and
on a more specific level – the functioning of our Parliamentary
Assembly.
46. In particular, the rapporteur feels there is a need, in the
light of national parliaments’ rules of procedure (or the absence
of such rules) regarding the appointment of national delegations,
the composition of committees and the participation of their members
in Assembly sessions and committee meetings, to apply a number of
principles in order to promote good practice 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.
47. Lastly, it would be most interesting to examine the situation
as regards parliamentary mandates not only at national level but
also at local and regional level. The Congress of Local and Regional
Authorities of the Council of Europe could be called upon to assist
here.