A Westminster Hall debate on the ‘Work of the Council of Europe’ has been scheduled for Wednesday 18 April 2018 from 9.30am to 11.00am. The debate has been initiated by Vernon Coaker MP.
The Council of Europe (CoE), based in Strasbourg, is primarily a human rights organisation. It is an entirely separate organisation from the European Union (EU), but all 28 EU Member States are members of it and it has been a stepping stone for many former Eastern bloc countries towards EU membership. The CoE’s ‘Council of Europe in brief’ webpages summarise its activities:
The CoE advocates freedom of expression and of the media, freedom of assembly, equality, and the protection of minorities. It has launched campaigns on issues such as child protection, online hate speech, and the rights of the Roma, Europe’s largest minority. The Council of Europe helps member states fight corruption and terrorism and undertake necessary judicial reforms. Its group of constitutional experts, known as the Venice Commission, offers legal advice to countries throughout the world.[1]
Its best-known products are the European Convention on Human Rights – a treaty designed to protect human rights, democracy and the rule of law – and the European Court of Human Rights that oversees how the Convention is implemented.
But the CoE also promotes human rights through other international conventions, such as the Convention on Preventing and Combating Violence against Women and Domestic Violence, and the Convention on Cybercrime. And it monitors member states’ progress and makes recommendations through independent expert monitoring bodies such as the Committee for the Prevention of Torture which regularly makes unannounced visits to places of detention.
All CoE member states have abolished the death penalty. The CoE has adopted some 200 legally binding treaties or conventions, many of which are open to non-member states. It has also made recommendations to governments on legal matters, health, education, culture and sport. Other CoE achievements in areas including democracy-building, non-discrimination and healthcare are outlined on its website.
The head of the CoE is its Secretary General, elected by the CoE Parliamentary Assembly (see below) for a five-year term. He/she leads and represents the organisation, and is responsible for the strategic planning and direction of the Council’s work programme and budget. The current Secretary General is Thorbjørn Jagland, a former Prime Minister of Norway, who is serving his second five-year term, having been re-elected by PACE in June 2014. There is also a Deputy Secretary General, also elected for a five-year term by PACE in an election separate to the one held for the Secretary General.
Council of Europe bodies
The Committee of Ministers
The Committee of Ministers (CM) is composed of the foreign ministers of all the Member States or their permanent representatives in Strasbourg. It is the CoE’s decision-making body. The CM website summarises the role of the CM as follows:
It is both a governmental body, where national approaches to problems facing European society can be discussed on an equal footing, and a collective forum, where Europe-wide responses to such challenges are formulated. In collaboration with the Parliamentary Assembly, it is the guardian of the Council’s fundamental values, and monitors member states’ compliance with their undertakings.
The CM Ministers meet annually in May for formal and informal discussions. The CM Deputies meet more frequently: three or more times a month. The Deputies also work as rapporteur groups, ad hoc working parties and thematic coordinators, which prepare decisions for the CM for adoption, ideally without debate. There are Rules of Procedure for both Ministers and Deputies.
The Parliamentary Assembly (PACE)
PACE is composed of 324 national parliamentarians from the 47 CoE Member States (and 324 alternates). The number of representatives per country, and consequently of votes, is determined by the size of the country. The Statute of the Council of Europe requires the members of PACE to be either elected or appointed by each Member State’s national or federal parliament from among its members, ‘in such manner as it shall decide’. PACE’s Rules of Procedure require that the balance of political parties within each national delegation ensures a ‘fair representation of the political parties or groups in their parliaments’.[2]
It provides a forum for debate on Europe’s political and social issues, and describes itself as ‘the democratic conscience of Greater Europe’. PACE has summarised its roles as follows:
It holds governments to account over their human rights records, and presses states to achieve and maintain democratic standards, both in Europe and – increasingly – in neighbouring regions.
It is a factory of radical ideas for improving Europe’s laws and practices, a “motor” for the Council of Europe and a guardian of the European Convention on Human Rights, which originated in the Assembly.
It is a forum for sometimes heated debate on key political and social issues facing the continent, helping to head off conflict and encourage reconciliation.
Though its texts are not binding, the Assembly speaks on behalf of 800 million Europeans and the 47 Council of Europe governments must give a collective reply. It is the democratic conscience of Greater Europe.
PACE uncovers human rights violations, “monitors” whether states keep their promises, and demands answers from Presidents and Prime Ministers. It can also recommend sanctions.
Whether ending executions in Europe, helping ex-Communist countries towards democracy, or creating the European flag, PACE has been a “motor” of positive change for more than 60 years.
The UK delegation
The UK delegation to PACE comprises 36 Members of the House of Commons and House of Lords (18 full members of PACE and 18 substitutes). The UK Parliament has no formal procedure for selecting who joins its delegation; it appears to be a matter for the party Whips, although the Labour Party holds internal elections. PACE rules allow delegates to be appointed or elected, as long as they are members of the national or federal parliaments and the delegations are a ‘fair representation of the political parties or groups in their parliaments’.[3]
Meetings
PACE meets in plenary in Strasbourg four times a year, for about a week at a time. In between plenary sessions, a Standing Committee acts on the Assembly’s behalf. It is made up of the President and Vice-Presidents of the Assembly and the chairs of the political groups, national delegations and Assembly committees, totalling some 60 parliamentarians from the 47 Council of Europe member states.
Committees
Much of PACE’s work is done through its nine general committees, which meet during the plenary sessions in Strasbourg, and in between times in Paris. One of these committees is concerned with migration, refugees and displaced persons, and there are a number of reports on its work on the committee website.
Most of the reports debated in plenary session or at the Standing Committee are prepared by a committee and presented by a rapporteur, with the help of the Secretariat. Once an Assembly text is adopted, the rapporteur and the relevant committee are mandated to check its implementation over the following twelve months.
Jurisdiction and general principles
The European Court of Human Rights in Strasbourg oversees the implementation of the CoE’s European Convention on Human Rights (ECHR) in the Member States. Individuals from any Member State can bring complaints of alleged human rights violations to the Court once all possibilities of appeal have been exhausted in the Member State concerned. The jurisdiction of the Court is mandatory under Article 32 ECHR, which states that its jurisdiction “shall extend to all matters concerning the interpretation of the Convention and the protocols thereto”, and that “in the event of dispute as to whether the Court has jurisdiction, the Court shall decide”.
All 47 CoE Member States, including all EU Member States, have ratified or acceded to the ECHR, thereby accepting the compulsory jurisdiction of the Court. The fundamental principle governing the obligations of States Party to the ECHR is set out in Article 46(1), which states “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. So States cannot simply ignore a Court ruling that they are in breach of the Convention. Something must be done to remedy the situation, but the Court does not prescribe the remedy (beyond sums payable as ‘just satisfaction’ to the applicant) or how it should be applied. The Court cannot amend national law or ‘disapply’ it; that is for States to do, if necessary, to comply with their treaty obligations. The CoE Monitoring Committee is responsible for overseeing how Member States implement a judgment. The Court of Human Rights adheres to the principle of proportionality and generally takes into account a margin of appreciation.
The judges are elected by PACE for a non-renewable term of nine years, from lists of three candidates proposed by each State. Their applications are first scrutinised by the new PACE Committee on the Election of Judges. Although judges are elected in respect of a State, they hear cases as individuals and do not represent that State. They may not engage in any activity that would be incompatible with their duty of independence and impartiality.
The Court elects a President and Vice-Presidents to direct its work and administration. The President represents the Court and, in particular, is responsible for its relations with the authorities of the Council of Europe. The judges are formed into five sections, each with a President, a Vice-President and a number of other judges. They can hear cases as a committee of three judges, a panel of seven, or a Grand Chamber of 17 judges (the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots).
The Court’s Registry has a staff of about 640 (270 lawyers and 370 other support staff) who process and prepare for adjudication applications lodged by individuals with the Court.
Impact of European Court judgments in the UK
The ECHR has enabled individuals to challenge the actions of state authorities and bodies if they believe these authorities have infringed their rights under the Convention. The Court cannot directly overrule or change national laws, but its rulings have resulted in Parliament enacting new laws or changing existing laws to provide better human rights protection and to comply with the UK’s international obligations under the ECHR. National parliaments have no direct role in the Court or the Committee of Ministers, which monitors compliance with the Court’s rulings.
UK Government policy has generally been to give effect to decisions of the Court, by changing the law if necessary, although this has implied a somewhat ambiguous relationship between the ECHR and UK law. British courts do not enforce or interpret international treaties, but even when the ECHR was not part of UK law, British courts on occasions took it into account when reaching a decision, and it was used to help clarify ambiguities in UK law.
A Library briefing summarises the UK Cases at the European Court of Human Rights since 1975.
Relationship with EU human rights obligations
Although the CoE and the EU are separate bodies, there are connections between the two. Since 2009 the EU has had its own EU Charter of Fundamental Rights, which includes all the rights set out in the ECHR, as well as more progressive social and economic rights. It applies to all the EU institutions, as well as to EU Member States (although only when they are acting within the scope of EU law). The UK Government is proposing not to retain the EU Charter (or case-law relating to it) in domestic law after Brexit. But the Supreme Court will continue to be bound by ECHR obligations under the Human Rights Act 1998, and the Government will continue to be bound by the ECHR itself.
Congress of Regional and Local Authorities
As well as bringing national parliamentarians together in PACE, the CoE has an assembly for local politicians: the Congress of Regional and Local Authorities. Its role is ‘to promote local and regional democracy, improve local and regional governance and strengthen authorities’ self-government’. Its main activity is monitoring compliance with its European Charter of Local Self-Government, which all 47 CoE states have ratified. As part of that it observes local and regional elections across Europe. It also encourages devolution and regionalisation, as well as trans-frontier cooperation between cities and regions.
Its 648 members hold elective office as regional or municipal councillors, mayors or presidents of regional authorities, and represent over 200,000 authorities in the 47 CoE states. They are appointed for a two-year term in accordance with each individual member state’s own procedure, which must pay due regard to fair representation. The Congress has a Presidency, a Bureau, a Chamber of Local Authorities, a Chamber of Regions, a Statutory Forum, committees, working groups and a secretariat.
Conference of International Non-governmental Organisations
Civil society is also represented in the CoE. Since 2003 around 300 International Non-Governmental Organisations (INGOs) have been granted participatory status and become part of the CoE’s Conference of INGOs. This contributes to the CoE decision-making process and to the implementation of its programmes. Before 2003 NGOs had consultative status only.
The Conference of INGOs meets in Strasbourg during the ordinary sessions of PACE. INGOs with participatory status might simply be consulted but could also have full-scale co-operation on specific projects; their experts may participate as consultants, contribute to intergovernmental committees, prepare memoranda for the Secretary General, make oral or written statements to the committees of PACE and the Congress of Local and Regional Authorities, and address seminars and other meetings organised by the Council of Europe. INGOs with participatory status also disseminate information about the Council of Europe’s aims and activities among their constituencies.
CoE budget
The Council of Europe’s budget for 2018 is €466,045,100 (approx. £406m). It is largely financed by contributions from the Member States, which are fixed according to scales taking into account population and gross national product. The major contributors (France, Germany, Italy, Russian Federation and United Kingdom) all contribute about the same amount to the ordinary budget, and provide nearly half of the total between them. States may also make voluntary contributions to support the Council of Europe’s programme of work. The CoE budget web page summarises how the budget is spent.
Strategy on the rights of the child
Protecting the rights of migrant and refugee children is a CoE priority and the focus of action under its Strategy for the Rights of the Child (2016-2021) and the Secretary General’s proposal for priority actions (4 March 2016). The Strategy states that “children on the move, or otherwise affected by migration, remain one of the most vulnerable groups in Europe today”. It underlines the precarious situation of unaccompanied migrant children, stating that “migrant children at large, even when accompanied by parents, often suffer persistent violations of their human rights”. The Strategy aims to draw attention to problems and shortcomings which result in children not being protected and/or their rights being violated.
Action plan on protecting refugee and migrant children
The CoE’s Action Plan on protecting refugee and migrant children (2017-2019) was adopted by the 47 CoE Member States at the 127th Committee of Ministers in Nicosia, Cyprus, on 19 May 2017. Tomáš Boček, the Special Representative of the Secretary General on Migration and Refugees, coordinated the Action Plan, which addresses the main concerns identified in the Thematic Report on migrant and refugee children. The Action Plan focuses on three key areas to ensure that children are better protected:
The Children’s Rights Division carries out and supports activities envisaged in the Action Plan, e.g. on the development of new guidelines on age assessment and guardianship, a handbook on promoting child-friendly information, and training on child-friendly procedures.
In May 2016 the CM told the Ad hoc Committee for the Rights of the Child to propose further actions to ensure the protection of unaccompanied and other children affected by migrant and refugee crises, particularly with regard to standards on legal guardianship, age assessment and protective measures against trafficking in human beings.
PACE campaign
In addition to the Parliamentary Assembly End Immigration Detention of Children Campaign, the work of the Special Representative of the Secretary General on Migration and Refugees, and the Urgent monitoring round completed by the Lanzarote Committee on the protection of children affected by the refugee crisis from sexual exploitation and sexual abuse, many other parts of the CoE have contributed to the protection of the rights of children affected by the crises caused by the movement of people across the Mediterranean and Turkey from Syria and other parts of the world.
Regional initiatives
On 28 March the Current Affairs Committee of the CoE Congress of Local and Regional Authorities adopted a report and recommendation on Unaccompanied refugee children: the role and responsibilities of local and regional authorities (Rapporteur Nawel Rafik-Elmrini). The Congress invited CoE Member States to:
Tomáš Boček’s speech on presenting the report is at https://www.coe.int/en/web/special-representative-secretary-general-migration-refugees/-/speech-at-the-34th-congress-session.
[1] For general information about the Council of Europe, see Council of Europe: Who we are and Council of Europe, 800 million Europeans.
[2] PACE Rules of Procedure rule 6.2 (June 2015)
[3] A recent controversy over the membership of the UK delegation to PACE prompted calls for a more democratic selection process and a short inquiry by the Commons Public Administration and Constitutional Affairs Committee.
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