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C.E.S. Franks
The Act to Amend the Parliament of Canada Act (Ethics Commissioner and
Senate Ethics Officer) and other Acts in Consequence, received royal assent
on March 31, 2004, and was proclaimed two months later, on May 17. It has
already made vast changes to the legal and administrative structure for
ensuring ethical conduct of parliamentarians. This article deals mainly
with two questions about the new code of ethics for the House of Commons.
First, what are the substantive differences in approach between this code
and the previous provisions of the Parliament of Canada Act? Second, how
well does the code distinguish between public and private interests, and
what are the implications of the distinctions it makes? A final section
looks at progress that has been made in transforming the legislation into
a working code of ethics for members of Parliament and public office holders.
The new Act repeals the clauses of the Parliament of Canada Act dealing
with questions of conflict of interest for senators (clause 14), and those
dealing with conflict of interest for MPs (clauses 34 to 40). The repealed
clauses are replaced with much shorter clauses which create the position
of Senate Ethics Officer (clause 20) and Ethics Commissioner for the House
of Commons (Clause 72), and list the duties, position, and powers of the
two offices.
The Ethics Commissioner for the House of Commons also has responsibility
for ethical matters related to public office holders, a category which
include ministers of the Crown and ministers of state, political staff
of ministers, parliamentary secretaries, full-time ministerial appointees
designated by a minister of the Crown as public office holders, and other
Order-in-Council appointments, with specified exceptions. For these public
office holders the Ethics Commissioner applies the Privy Council Office’s
code of ethics (often referred to as the “Prime Minister’s Code”) rather
than the code established for the House of Commons. Both the Senate Ethics
Officer and the Ethics Commissioner are appointed by the Governor in Council
after consultation with the leaders of every recognized party in their
respective houses.1
Dr. Bernard Shapiro has been appointed Ethics Commissioner for the House
of Commons and the Government, and a Conflict of Interest Code for Members
of the House of Commons2 has been in force since the first sitting of the
38th Parliament in October 2004. The Conflict of Interest Code for Members
of the House of Commons is not a statute, but can be found as Appendix
1 to the Standing Orders of the House of Commons. The Office of the Ethics
Commissioner has also promulgated a revised (2004) version of the Privy
Council Office’s Conflict of Interest and Post-Employment Code for Public
Office Holders.3
The Conflict of Interest Code for MPs is a more extensive document than
the sections of the Parliament of Canada Act it supersedes. It establishes
general principles, spells out in much more detail what conflict of interest
means, establishes rules of conduct and procedures for resolving issues,
and includes such matters as sponsored travel and prohibitions against
gifts and other benefits that were not previously covered by the Act. It
also requires members, at the beginning of each new Parliament and annually
thereafter, to file with the Ethics Commissioner “a full statement disclosing
the Member’s private interests and the private interests of the members
of the Member’s family” (Clause 20(1)). The blank document to be filled
out by each member, and for each family member, is 21 pages long. These
statements are to be kept confidential by the Ethics Commissioner, but
a disclosure summary is to be placed on file in the office of the Ethics
Commissioner and made available for public inspection (23(2)). These provisions
reduce the private space of members of Parliament and their families. A
negative side effect might be that people who treasure their privacy, or,
for example, who have reason to fear kidnapping or terrorist attack if
even a summary of their assets is disclosed, might be deterred from running
for public office.
In the committee proceedings and debates leading up to the Ethics Act,
the Senate was insistent that it have its own ethics officer and code of
ethics.
Clause 26 permits the Ethics Commissioner to give confidential opinions
and recommendations upon written request by a member. Clauses 27 and 28
permit members on reasonable grounds or the House itself to request the
Ethics Commissioner to make inquiries into questions of compliance with
the code by other members, and for reporting on these inquiries to the
Speaker, who is to present the report to the House when it next sits. Clause
29 instructs the Commissioner to suspend an inquiry and refer the matter
to the proper authorities if there are reasonable grounds to suspect that
a member has committed an offence under an act of Parliament.
Clause 21 of the Ethics Act states that the Ethics Commissioner enjoys
the privileges and immunities of the House of Commons. In other words,
the information provided to the Ethics Commissioner by members, and the
Commissioner’s discussions and correspondence with members, except where
otherwise stated, enjoys the same privileges as the proceedings of the
House, and cannot be quoted, ordered for, or be used in, court proceedings.
This provision is clearly designed to protect parliamentary privilege,
and members and the House from intrusion by the courts. Quite likely, it
also is behind the fact that the Conflict of Interest Code itself is appended
to Standing Orders rather than embodied in a statute, though another reason
for this approach might be that Standing Orders are much easier to amend
than are statutes.
The Senate has had, and continues to have, a somewhat divergent view on
interest and conflict of interest from the Commons. It should be remembered
that among the motives behind the establishment of the Senate was to create
an upper chamber that would be a hedge against unruly democracy and would
help preserve the interests of the propertied classes. Many senators historically,
and still at present, have had distinguished careers in business and the
professions, and retain business and professional activities after becoming
senators. The Senate has accepted the potential conflicts of interest inherent
in having senators who retain strong connections with business and other
groups not only participate in proceedings but also hold positions of responsibility
and influence such as chair of the Senate Banking and Finance Committee.
This has not protected the Senate against criticism for being the “lobby
within” for big business. 4 It is not yet clear how the Senate will resolve
these potential conflicts of interest. As of January 2005 the Ethics Officer
for the Senate had not been appointed, nor had a code of ethics been promulgated
for the Senate.
Explicit Prohibitions Versus Positive Exhortations.
The clauses governing ethical conduct found in Division B (Conflict of
Interest) of the Parliament of Canada Act formed a succinct list and description
of prohibitions against improper activities such as influence peddling
and entering into contracts with government. These prohibitions were a
reasonably clear and unambiguous list of “thou shalt nots.” Much of the
new Conflict of Interest Code has the same characteristic of listing specific
prohibitions.
But in addition the new code states that members are expected “to fulfill
their public duties with honesty and uphold the highest standards so as
to avoid real or apparent conflicts of interests, and maintain and enhance
public confidence and trust in the integrity of each Member and in the
House of Commons” (2(b)). This is a more modest demand than appeared in
an earlier draft, which proposed that members were expected “to fulfil
their public duties with honesty and uphold the highest ethical standards,
so as to maintain and enhance public confidence and trust in the integrity
of each parliamentarian and in the institution of Parliament….”5 Both,
however, are alike in making a positive demand that members act in an ethical
way rather than making a negative prohibition against specific undesirable
behaviour.
The phrasing of the earlier draft seemed to demand that members act according
to the highest ethical standards in all aspects of their lives. But it
is far from clear what are “highest ethical standards”. Conceivably high
ethical standards could include both stands on, and personal involvement
in private matters such as sexual orientation or abortion. To many Canadians
a person who has, condones, or aids in abortion has failed to meet the
“highest ethical standards.” Others consider abortion to be a right, and
ethically justified. Many other issues, such as same sex marriage, produce
the same sort of disagreement about ethical standards. Political disagreements
and ethical disagreements often overlap, as do the private and public spheres
of activity. Perhaps it is far-fetched to consider it possible that persons
or groups with strong views on these and many other political and ethical
issues might use the goal of “highest ethical standards” to attack political
opponents, but stranger things have happened in politics.
The new code resolves these problems in demands and expectations. Not only
does it leave out the “ethical” but also makes it clear that these positive
demands relate to conflict of interest and public duties rather than to
private aspects of a politician’s life, or to stands taken on ethical issues
that are the subject of public debate. The current code provides a more
modest, but more realistic and less contentious standard.
MacGregor Dawson observed that “one of the greatest merits of [the House
of Commons] is derived from the fact that it is not a selection of the
ablest or most brilliant men in the country, but rather a sampling of the
best of an average run that can survive the electoral system….”6 Members
of Parliament are fallible human beings like the rest of us, and I for
one am comforted to know that they, rather than secular saints, represent
us in Parliament. Not the least of my concerns about embodying unrealistically
high expectations of behaviour in a code of ethics is that when some slip,
if only in a trivial way, from these high standards, they and the institution
become vulnerable to over-zealous criticism. We all fail to meet the highest
ethical standards from time to time. We leave undone those things which
we ought to have done, and do those things which we ought not to have done.
To demand that people behave otherwise is to demand personal and institutional
hypocrisy. The statement of general principles in the present code is an
improvement over earlier drafts. The expression of positive expectations
in clause (2) of the new code adds something useful, and avoids the risk
of unreasonable demands and expectations. It offers a good balance between
ideals and positive exhortations for goodness on the one hand and specific
prohibitions of unwanted behaviour on the other.
The Distinction Between Public and Private Interests.
Clause 3(2) of the code states that “A Member is considered to further
a person’s private interests, including his or her own private interests,
when the Member’s actions result, directly or indirectly” in, among other
things, “an increase in, or the preservation of, the value of the person’s
assets.” Clause 8 states that “When performing parliamentary duties and
functions, a Member shall not act in any way to further his or her private
interests or those of a member of the Member’s family, or to improperly
further another person’s private interests.” Clauses 9 and 10 extend the
scope of activities prohibited because they would further private interests.
In 2002 Howard R. Wilson, then Ethics Counsellor, used the example of C.D.
Howe to show how ethical principles on the distinction between public and
private interest have changed over the past decades:
…C.D. Howe was a successful businessman who went into public life, becoming
known as “Minister of Everything” after the Second World War.
The story goes that every week, Howe would review his extensive stock portfolio
on the basis of the government’s decisions and the information he had learned
during the week. No one thought anything of the fact that Howe was an active
investor and a Minister at the same time. There were [sic] no chorus of
claims that he was corrupt or that his decisions were tainted by his own
personal interests. It was felt that he would never take a decision as
Minister that was not in the public interest.
There was a high level of trust in public officials. Those days are long
gone now. It because there has been an increasingly sturdy expectation
of what citizens expect from government and from those in government. 7
C.D. Howe’s sort of behaviour would no longer be tolerated in cabinet ministers
or any other holder of public office.
C.D. Howe made a huge contribution to the economic and industrial development
of Canada. He prospered as the country prospered. He made no distinction
between doing good and doing well, and indeed the two categories are not
necessarily mutually exclusive. Howe lived and operated within a political
tradition and way of thinking that is now almost in disrepute: that a politician
ought to have, and represent, interests, that one of a politician’s duties
is to promote the interests of constituents, of interest groups and of
persons whom he or she represents, and that it is a virtue, and an assurance
of sincerity and zeal, when the politician’s interests coincide with those
represented. This is not to say that politicians should not also have more
general concerns about public policy and the public interest, but that
these should not be the sole focus of concern. The interests of those who
elect the politicians – the people in his or her constituency – are, and
should be, a first concern. Concern with political survival is one of the
most sincere of political interests.
Responsibility for a broader and more intense focus on the general public
interest, rather than on local and particular interests, comes at the level
of the cabinet, the Crown in formal constitutional terminology. As L.S.
Amery observed, Parliament represents the various factions and regions
of the country, while the Crown represents the collective national interest.
Governance involves a continuous parley between people and government in
Parliament.8 Expression of general public interest also, of course, comes,
or should come, at the level of political parties in their articulation
of the public interest and their attempts to convince voters to support
their approach over those of the other parties.
Within all of these notions about faction, interest, roles of members,
parties, etc., I find some difficulty with the bald assertion that “When
performing parliamentary duties and functions, a Member shall not act in
any way to further his or her private interests or those or a member of
the Member’s family, or to improperly further another person’s private
interests.” I would hope that members do both good and well at the same
time, and that a member’s personal and political interests would be reasonably
congruent with the interests of his or her constituents, and with the interest
groups he or she belongs to and cares about.
Do we want to be governed by philosopher kings or by partisan warriors,
or, if both, what is the appropriate balance between the two?
A strict reading of Clause 8 of the code would lead to the strange conclusion
that members should not act in Parliament in a way that would benefit their
constituents and interest groups if those benefits and interests coincided
with those of the member. Nor, to indulge in reductio ad absurdum, should
a member vote on a tax bill if it would reduce his or her capital gains
tax, or for old age pensions if he or she is a pensioner, or for other
legislation such as planning or environmental laws that would have a similar
sort of benefit. I suspect that none of these perhaps far-fetched interpretations
of the provisions of the code are intended, nor are they likely to produce
the dire consequences I portray, but a problem could conceivably arise.
It certainly does in the Senate. These are the sorts of problems that the
Senate must wrestle with in its efforts to create an appropriate code of
conduct for senators. Identifying the appropriate boundary between private
and public interests is an immensely complex task, and the boundary itself
changes over time as public expectations of the behaviour of politicians
and public office holders change.
I have only touched on the surface of this problem here. There are risks
that the guts will be taken out of politics if private interest is construed
too broadly, and politicians are hampered in advocating the interests of
groups to which they belong, support and benefit from belonging to. Public
and private interest are both essentially contestable concepts, the meaning
of which partakes of ideological, social, and cultural as well as strictly
legal construction. How far Canada should go down the path of preventing
representatives from supporting general or particular policies which are
in their own interest before politics itself becomes denatured, will remain
an issue for parliamentarians. Have we gone too far already?
Getting the New Ethics Regime Under Way
In October 2004 the Standing Committee on Procedure and House Affairs of
the House of Commons interrogated the new Ethics Commissioner, Dr. Shapiro.
Members expressed concern, which they felt was shared by most members,
over the amount of detail requested in the disclosure statement, and about
the amount of information that would be made public. The committee decided
to establish a sub-committee to look into the matter. 9 Subsequently the
House created a new committee, the Standing Committee on Access to Information,
Privacy, and Ethics, to which the Ethics Commissioner is, in part to report.
The wording of this committee’s title would suggest that it was intended
to deal with most aspects of the work of the three parliamentary officers
concerned with access to information, privacy, and ethics. However, with
legislation and standing orders already in place relating to the Ethics
Commissioner and the ethics code, the current solution to fitting the new
committee into the existing structure has created a somewhat awkward solution.
10 Both the Ethics Act and the ethics code adopted by the House in 2004
refer to the Standing Committee on Procedure and House Affairs, but not
to the new committee. This has caused some unnecessary confusion and complexity.
For example, the current rules require that the annual report of the Ethics
Commissioner on his activities related to the House of Commons to be referred
to the Standing Committee on Procedure and House Affairs, while his report
relating to public office holders be referred to the new Standing committee.
This and other Byzantine convolutions in reporting and other functions
still need to be sorted out.
Of more direct importance to the members of Parliament is the question
of how investigative reports from the Ethics Commissioner will be handled
by Parliament. The procedures here are relatively straightforward. When
the commissioner makes an investigation under the code for members of the
House (and ministers and parliamentary secretaries when they have acted
in their capacity as members rather than public office holders), he reports
his findings to the Speaker, who presents the report to the House. The
member who is the subject of the report has the right to make a statement
in the House after question period. If the commissioner has found that
a member contravened the code, members of the House may move concurrence
and a debate not to exceed two hours follows. When the commissioner does
not find that a breach of the code has occurred, unless a member moves
concurrence the matter lapses and the report is deemed adopted after ten
days.
When the Ethics Commissioner reports on investigations into public office
holders after a complaint is made by a member of Parliament the commissioner
reports to the Prime Minister, provides a copy of the report to the member
of Parliament who made the complaint, and to the subject of the complaint.
The report is made public, but is not tabled in the House. The new Ethics
Commissioner, Dr. Shapiro, has suggested that the procedures for making
these reports public might be simplified by, for example, submitting them
to the Speaker of the appropriate House.11
There is no provision for any of these investigative reports to be referred
to a parliamentary committee. By way of contrast, investigative reports
from the registrar of lobbyists are referred to the Standing Committee
on Access to Information, Privacy, and Ethics. The fact that these reports
under the ethics code will not be referred to a standing committee relieved
many of the concerns of many members. Some others felt that if a report
were controversial, it would in any case likely wind up being referred
to a committee by the House.
Members expressed concern about the release of information contained in
their disclosure documents. Dr. Shapiro reassured the committee that the
full documents would be kept fully confidential, but that the summary documents
would be available in his office. These summaries would not include figures
on assets or debts, but simply indicate that they existed in an amount
in excess of $10,000. Dr. Shapiro also suggested that these summaries might
be available in a variety of ways so that an inquirer does not have to
be in Ottawa in order to access them. Before the House was adjourned in
December 2004 the Standing Committee on Procedure and House Affairs resolved
this problem by approving a motion that the summary statements be made
available by fax, as well at the commissioner’s office.12 The bulk of the
budget of the office – between $3.5 and $4 million – has gone into processing
these disclosure statements from members. There is a cost to transparency.
As of December 2004 the Office of the Ethics Commissioner had received
one request for advice from a cabinet minister, and one request for an
investigation by a member of Parliament. Both referred to the same issue:
the propriety of the Minister of Citizenship and Immigration’s granting
a residency permit to a strip-dancer from Romania who subsequently, it
appeared had worked on the minister’s election campaign. Judy Sgro, the
minister, had requested the advice; Diane Ablonczy, an opposition front
bench critic, had requested the investigation. The Ethics Commissioner
explained to the Standing Committee on Access to Information, Privacy,
and Ethics, that he had hired a law firm to do the fact-finding research
into this matter.13
The minister, Judy Sgro, resigned in January 2005 after being made vulnerable
in the House through persistent opposition attacks during the fall session
because of the strip-dancer issue and others. The final blow to this phase
of Ms. Sgro’s ministerial career came from an affidavit by a failed refugee
claimant which stated that Ms. Sgro had promised to help his claim if he
provided pizzas and other help for her election campaign. Though this claimant
was found to have a long record of criminal and other offences, and though
he was found to be an entirely unreliable and untrustworthy person, Ms.
Sgro resigned. There is no more fearsome voice in Canadian politics than
the opposition baying for ministerial blood on the floor of the House of
Commons. The commissioner had not reported on either of these requests
by February 2005.
These events mark only the beginning of what is likely to be a long process
of accommodation and adjustment. The code of ethics, the machinery and
processes for its administration, and the mechanisms for a continuing dialogue
between commissioner and the House of Commons are now in place. That goes
a long way towards resolving issues that have been a public and parliamentary
concern for over thirty years.
Notes
1. Attempts to establish a code of conduct for members of parliament and
senators in the modern period began in 1973 with the government’s green
paper on “Members of Parliament and Conflict on Interest.” Government bills
dealing with conflict of interest were introduced in 1978, 1983, 1988,
1989, 1991, and 1992, but none of them succeeded in passing the hurdles
of the parliamentary law-making process, nor did any of the proposals find
their way into Standing Orders. In 1997 a joint committee of the House
of Commons and Senate (the Milliken-Oliver Committee) studies the issue.
In 2002, committees of both houses examined two documents: the Code of
Conduct for Parliamentarians: Proposals to amend the Rules of the Senate
and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver
Report, and the Proposals to amend the Parliament of Canada Act (Ethics
Commissioner) and other Acts as a consequence. The present arrangements
bear a close resemblance to the 2002 documents. Standing Order 21 of the
House of Commons, which until these 2004 changes was the House’s only order
dealing with conflict of interest issues for its members, and which had
seldom been invoked, has not changed since 1867.
2. Office of the Ethics Commissioner, Conflict of Interest Code for Members
of the House of Commons, 2004
3. Privy Council Office, conflict of Interest and Post-Employment Code
for Public Office Holders, Rev. ed., 2004
4. For example, Colin Campbell. The Canadian Senate: A Lobby from Within.
Toronto: Macmillan, 1978.
5. Canada, Privy Council Office, 2002, Code of Conduct for Parliamentarians:
Proposals to amend the Rules of the Senate and the Standing Orders of the
House of Commons to implement the 1997 Milliken-Oliver Report.
6. R. MacGregor Dawson, The Government of Canada, Fifth Edition, revised
by Norman Ward, (Toronto: University of Toronto Press, 1970), p 304.
7. “The Constantly rising Ethics Bar,” Notes for a Presentation by Howard
R. Wilson, Ethics Counsellor, to the Canadian Centre for Ethics and Public
Policy, November 7, 2002.
8. L.S. Amery, Thoughts on the Constitution, London: Oxford University
Press, 1964, pp 4,10.
9. Standing Committee on Procedure and House Affairs, Minutes of Proceedings,
October 14, 2004.
10. See the Standing Committee on Access to Information, Privacy and Ethics,
Minutes of Proceedings, December 6, 2004, Number 6.
11. Standing Committee on Access to Information, Privacy and Ethics, Minutes
of Proceedings, December 8, 2004, Number 7.
12. Standing Committee on Procedure and House Affairs, Minutes of Proceedings,
December 9, 2004, Number 14.
13. Standing Committee on Access to Information, Privacy and Ethics, Minutes
of Proceedings, December 8, 2004, Number 7.
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