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Developing An Ethics and Conflict of Interest Code

When parliamentarians take the oath of office, it is because they are "assuming positions of public trust," says James Robertson, a former senior analyst with the Canadian Library of Parliament's Parliamentary Research service; "the oath of allegiance is a pledge that they will conduct themselves 'patriotically,' and in the best interests of the country."

In an era driven by 24-hour news channels, social media and information communications technologies, however, the oath, unto itself, is insufficient proof that the public interest is being served according to the public's expectations.

There is no evidence to suggest that today's parliamentarians take public resources any less seriously than their predecessors. But parliamentarians' sense of integrity is no longer assumed. Instead, parliamentarians today are expected to be willing and able to withstand public scrutiny of their interests, behaviours and ethics.

Is is therefore necessary that the public's expectations be translated into a set of principles and policies to which parliamentarians can adhere and, in the event of perceived or real transgressiona, against which they can be judged. As professional associations and parliaments across the world have discovered, this involves striking a delicate balance between the public interest, the reputation of the institution or profession in question and the legitimate interests of the individuals to which the code applies.

Recent History

Dating back to at least 1973 federal parliamentarians in Canada have been guided by a series of 'green papers', guidelines, studies and reports describing the standards against which parliamentarians' ethics and behaviour could be judged.

Between 1978 and 2003, at least six bills were proposed that centred on governance of parliamentary conduct, but all died on the Order paper before they could be passed into law.

By and large, these initiatives focussed on issues of conflict of interest. Such was also the case when amendments to the Parliament of canada Act, adopted in 2003, led to the creation of the Conflict of Interest Code for Senators.

The Code quickly became the key mechanism for ensuring that Canadian Senators live up to the public trust in which they are vested. It began with a set of three principles stating that Senators were expected:

(a) to remain members of their communities and regions and to continue their activities in those communities and regions while serving the public interest and those they represent to the best of their abilities;

(b) to fulfil their public duties while upholding the highest standards so as to avoid conflicts of interest and maintain and enhance public confidence and trust in the integrity of each Senator and in the Senate;

(c) to arrange their private affairs so that foreseeable real or apparent conflicts of interest may be prevented from arising, but if such a conflict does arise, to resolve it in a way that protects the public interest.

It then went on to detail how Senators and their families were expected to carry on their private business, refrain from using their influence for persona; gain and publicly disclose their interests or any gifts or sponsored tracel above a certain threshold.

The Code also provided for the creation of a Standing Committee on Conflict of Interest for Senators, which was responsible for all matters relating to the Code. This ensures that the Code remains relevant by conducting regular reviews and suggesting improvements.

Strengthening the Code

One such effort was launched early in 2013, when the Committee agreed that the Code should be strengthenes and improved to reflect changing realities and public expectations. In particular, it was determined that a clearer and more transparent process for conducting an inquiry into an alleged breach of the Code needed to be established, while greater depth needed to be given to the principles detailing acceptable behaviour.

After all, the Code had been established under the same Act that created the Senate Ethics Officer; nine years later, the integrity system the Code articulated had matured to a point where it needed to be broadened to reflect a more comprehensive public awareness of what modern professional conduct and ethics for parliamentarians should entail.

After months of deliberation and consultation between the standing Committee on Conflict of Interest for Senators, the Senate Ethics Officer and Parliamentary counsel, the Senate adopted several key amendments in early 2014. The new Code now opens with the following Statement:

"Senators shall give precedence to their parliamentary duties and functions over any other duty or activity, consistent with their summons to the Senate, which commands then to lay aside all difficulties and excuses to perform their parliamentary duties and functions."

This principle now stands front and centre, guiding Senators' interpretation of the Code and providing a day-to-day reminder of the oath each of us took upon being summoned to the Senate. Senators were also now required to file annual statements of compliance with the SEO, confirming that they have read the Code and that, to the best of their knowledge, they are in compliance with it.

This preventive enforcement mechanism reflects the emerging norm in ethics regimes, including in Britain's House of Lords and among senior public servants. It ensures that the Code remains current in Senator's minds, as a source of guidance in their deliberations on matters of parliamentary ethics and behaviour. It also provides useful reassurance to the public.

This was reinforced by a new, streamlined process for determining whether a Senator has not complied with his or her obligations. The new process consists of a preliminary review followed, if necessary, by an inquiry by the Senate Ethics Officer. Conducted at arm's length from the committee, this investigative process ensures that Senators themselves are no longer involved in the adjudication of the facts surrounding an alleged breach of any section of the Code by a peer. Instead, the Committee is responsible for the consideration of the inquiry report and, if the report establishes that a breach has occurred, recommending appropriate sanctions.

A list of remedial measures or sanctions included in the new Code sets out the responses avaliable. The ultimate decision of which sanction or remedial measure to apply rests with the Senate Chamber as a whole.

This three-staged process ensured that there would be no ambiguity as to how the Senate would be obliged to react if one of its members was suspected of breaching the Code.

further strengthening the Code's transparency, the Senate Ethics Officer was given express authority to provide general information about the Senate ethics and conflict of interest regime to the public and to inform the public about the status of a preliminary review or inquiry.

While simplifying the enforcement process and increasing openness and transparency are virtues in themselves, a key consideration was that these changes would give the Code new value and currency as a guide to help inform and educate Senators and the public alike.

By articulating the principles of public integrity and trust to which Senators are expected to adhere, they gave effect to the Code's new title: The Ethics and Conflict of Interest Code for Senators.

Broadened in scope beyond the erstwhile almost exclusive focus on matters of conflict of interest, the new Code combines guidance for Senators' daily behaviour with a clear statement of the procedures for addressing real or apparent breaches of the Code.

Sharing Best Practice

As Parliaments around the world continue in their efforts to develop appropriate means for governing their members' ethics and behaviour, it is these procedural considerations that pose the greatest challenge.

In early April 2015, I was privileged to participate in a workshop hosted by the Commonwealth Parliamentary Association at Monash University in Melbourne.

The workshop provided an opportunity for parliamentarians from around the Commonwealth to deliberate on a set of Recommended Benchmarks for Parliamentary Codes of Conduct developed under the leadership of Associate Professor Hon. Dr. Ken Coghill.

Our discussions revealed that, while parliamentarians generally agree on the principles that should guide us for the preservation of public trust in our respective legislatures, the mechanisms and procedures that make such Codes enforceable are best developed to reflect the nuances of each jurisdiction.

Few who are truly committed to public service would dispute the universal importance of selflessness, integrity, objectivity, accountability, openness, honesty and leadership among public office holders.

Irrespective of their common Westminster heritage or other similarities, however, each parliament must develop its own tools for the effective enforcement of parliamentary behaviour in a manner that is consistent with its own particular practices and structures.

Instructive, in this regard, is that Parliamentary Codes of Conduct appear best oriented towards the discharge of natural justice. Bearing parliamentary privilege in mind, the duty to act fairly - rather than a focus on legal rights and due process - provides the surest means to domonstrate a solid commitment to the public interest and to avoid public perceptions of bias.

In addition to the principles of honourable conduct and the right to a fair hearing, parliamentarians tend to agree on at least one other Characteristic that is critical to the effectiveness of all parliamentary codes of conduct:

'Codes of conduct must remain relevant, be regularly reviewed and updated and made familiar to all those to whom they apply, as well as to the public whose interests they aim to uphold.'

In its ten years of existence, the Senate of Canada's Code has laready undergone several rounds of changes.

The latest measures help transform the Code into a tool to which Senators can turn from time to time as they determine appropriate courses of action, thereby ensuring that they are reqularly reminded of its provisions.

It is hoped that this new awareness will assist in ensuring that the new Ethics and Conflict of Interest Code for Senators is both more accessible and adapted to the evolution of public expectations. But the role of the committee in anticipating and affecting further changes remains as central to the effectiveness of the Senate's new ethics regime as ever.

Indeed, the Senate of Canada's Ehtcs and Conflict of Interest Code for Senators will continue to change as long as dynamism remains a defining feature of the societies and public expectations it seeks to uphold.

As Winston Churchill Once said "To improve is to change; to be perfect is to change oftern."

In an era of rapid social change, perfection maybe an impossible standard for interbal accountability systems, standards of conduct and ethical behaviour to meet; set against the imperative of maintaining public confidence in our parliaments, however, regular improvement remains a constant and necessary pursuit.

Raynell Andreychuk is a Conservative senator from Saskatchewan.