The Committee for the Scrutiny of Elections, Immunity and the Rules
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The Committee for the Scrutiny of Elections, Immunity and the Rules of Procedure 2 “The 1st Committee is the lead committee for matters relating to Parliament’s Rules of Procedure, but it also deals with many key issues and questions relating to parliamentary democracy more widely. Many members of the public are familiar with the Com- mittee’s scrutiny role following European and Bundestag elections. In its deliberations, the Committee seeks to achieve a consensus on solutions which can, if possible, be supported jointly by all of the parliamentary groups currently represented in the German Bundes- tag. Our meetings take place in a constructive atmosphere and with an awareness of the special signifi- cance of this important committee.” Professor Patrick Sensburg, CDU/CSU Chairman of the Committee for the Scrutiny of Elections, Immunity and the Rules of Procedure 3 The German Bundestag’s decisions are prepared by its committees, which are estab- lished at the start of each elec- toral term. Four of them are stipulated by the Basic Law, the German constitution: the Committee on Foreign Affairs, the Defence Committee, the Committee on the Affairs of the European Union and the Petitions Committee. The Budget Committee and the Committee for the Rules of Procedure are also required by law. The spheres of respon- sibility of the committees essentially reflect the Federal Government’s distribution of ministerial portfolios. This enables Parliament to scruti- nise the government’s work effectively. The Bundestag committees The German Bundestag sets political priorities of its own by establishing additional committees for specific sub- jects, such as sport, cultural affairs or tourism. In addition, special bodies such as parlia- mentary advisory councils, The committees discuss and committees of inquiry or deliberate on items referred study commissions can also to them by the plenary. They be established. The commit- also have the right to take up tees are composed of mem- issues on their own initiative, bers of all the parliamentary allowing them to set priorities groups, reflecting the balance in the parliamentary debate. of these groups in the German When necessary, they draw Bundestag. The distribution on external expertise – usu- of the chairs and deputy ally by holding public hear- chairs among the parliamen- ings. At the end of a commit- tary groups also reflects their tee’s deliberations, a majority relative strengths in the ple- of its members adopt a recom- nary. In the current electoral mendation for a decision and term, the committees have a report, which serve as the between nine and 49 mem- basis for the plenary’s deci- bers. sion. 5 Several special features set the Committee for the Scru- tiny of Elections, Immunity and the Rules of Procedure, traditionally also known as the “1st Committee”, apart from the Bundestag’s other committees. For example, all of its functions are enshrined in the constitution: Article 41 of the Basic Law refers to re- sponsibility for the scrutiny of elections, Article 46 regulates the principle of parliamentari- ans’ immunity, and Article 40 stipulates that the Bundestag must adopt rules of procedure. In addition, the Committee is responsible for examining whether Members had links with the former East German State Security Service. The Committee for the Scrutiny of Elections, Immunity and the Rules of Procedure In the current electoral Unlike most of the Bundes- term, the 1st Committee has tag’s committees, the 1st Com- 14 members. Its composition mittee is not a purely legis- reflects the close cooperation lative committee. It seeks to between the 1st Committee, take decisions by consensus the parliamentary groups’ wherever possible, including parliamentary secretaries when it comes to amending and the Council of Elders, and interpreting the Rules of a body which plays a key role Procedure, and when taking in planning and managing the decisions on immunity mat- German Bundestag’s work. ters and on election scrutiny For example, several Commit- processes, which should be tee members also sit on the reached following fair and Council of Elders, or serve as non-partisan deliberations. parliamentary secretaries for Party- political considerations their parliamentary groups. are not at the forefront of the Within the 1st Committee, the 1st Committee’s discussions, Committee for the Scrutiny as the results of its delibera- of Elections is an autonomous tions invariably affect Parlia- body whose members are ment as a whole, and today’s directly elected by the plenary minority can be tomorrow’s for the duration of the elec- majority. In addition, the toral term. The two commit- 1st Committee has a right of tees meet separately, and not initiative: it can submit pro- all of the nine members of the posals to the Bundestag for an Committee for the Scrutiny of amendment of the Rules of Elections are also members the Procedure without having of the 1st Committee. Both to be tasked with doing so by committees are chaired by Parliament. Patrick Sensburg (CDU/CSU). 5 ■ ■ ■ ■ ■ CDU/CSU 3 ■ ■ ■ SPD 2 ■ ■ AfD 2 ■ ■ FDP 1 ■ The Left Party 1 ■ Alliance 90/The Greens Number of members: 14 Chairman: Professor Patrick Sensburg, CDU/CSU Deputy Chairman: Dr Florian Toncar, FDP 7 The Committee’s is also responsible for examining motions seeking to establish a committee of inquiry. The second key area of the Committee’s work is dealing with matters relating to immunity. Parliamentarians’ immunity, guaranteed by Article 46 of the Basic Law, means that a Member of The 1st Committee’s work Parliament may only be sub- focuses on matters relating ject to criminal proceedings to the Rules of Procedure, or have their personal free- the Bundestag’s autonomous dom restricted with the Bun- regulations defining its organ- destag’s permission. This is isation and procedures, which intended to safeguard Parlia- are adopted anew in each elec- ment’s ability to function and toral term. If there are doubts maintain its standing. It has about how the Rules of Proce- long been standard practice dure are to be interpreted, the for the Bundestag to grant Committee seeks solutions general permission, for the and provides guidance on the duration of an electoral term, approach to be taken in future. for preliminary inves tigations It also discusses necessary to be initiated – provided adjustments to the Rules of that the public prosecution Procedure when new circum- offices notify the Bundestag stances arise, and bills and in advance of their intention other items of business con- to do so. Investi gations may cerning the rights of Members begin 48 hours after receipt of Parliament or the status of the notification unless the of the Bundestag – in relation Committee raises any objec- to the Federal Government or tions; authorisation on a case- EU institutions, for example. by- case basis is not required. 8 The situation is different when it comes to requests for permission for law enforce- ment measures (especially searches or the bringing of charges), on which the Bun- destag takes a decision during a public sitting. In such cases, words, Members of Parliament the Bundestag must expressly are not better placed than authorise the measure, on the other citizens due to their basis of a proposal from the immunity. 1st Committee. When dealing Examining whether Members with immunity matters, the of Parliament had links with Committee primarily ensures the former East German State that the public prosecution Security Service is also one offices’ actions are free from of the Committee’s tasks. It extraneous considerations accepts requests from Mem- and arbitrary decisions; how- bers who wish to voluntarily ever, it does not consider the undergo this screening, and evidence. The decision on can examine cases where sus- whether to waive or restore a picions exist on its own initia- Member’s immunity is not a tive. In the current electoral verdict on guilt or innocence – term, the Committee is con- that is a matter for the courts. tinuing to deal with requests Under Article 46 (4) of the of this kind; it forwards them Basic Law, the Bundestag has to the Federal Commissioner the right to restore a Mem- for the Records of the State ber’s immunity at any time. Security Service of the former In practice, this right is used GDR and asks to be notified of extremely rarely – in other any findings in the records. 9 Under Article 41 of the Basic Law, scrutiny of Bundestag elections is a matter for the Bundestag. Any eligible voter can contact the Committee for the Scrutiny of Elections to object to the validity of a Bundestag election within two months after the day on which it was held, and request that the Committee examine whether all rules were upheld – regardless of whether the objection relates to the preparations for the election, its conduct or the counting of the votes. The Committee for the Scrutiny of Elections carefully exam- ines all objections and en- gages with the arguments put forward by those who have submitted objections in its deliberations. Where neces- sary, the Committee asks the The Committee for the Scrutiny of Elections 10 competent election author- ities to comment on the sub- stance of an objection before it submits its proposal for a decision to the plenary. Even if an error is found to have taken place, an objection to an election is only upheld if the error has had an impact on the distribution of the seats in the Bundestag. To date, this has never been the case. It is not the case that objec- tions which do not affect the validity of the Bundestag elec- tion have no effect, however. The Committee for the Scru- In addition, the Bundestag tiny of Elections investigates scrutinises the election of the every reported error, and it German Members of the Euro- can help to ensure that poten- pean Parliament.