[Democracy Watch Logo] [Op-ed]

Oliphant Commission and recent scandals show clear need for another Federal Accountability Act

Set out below is a op-ed by Democracy Watch Coordinator Duff Conacher which was published Rabble.ca on June 16, 2010, and in the June 21, 2010 issue of the Hill Times

Almost all reaction to the Oliphant Commission report has focused on its least surprising findings, namely that former Prime Minister Brian Mulroney violated federal ethics rules and failed to tell the whole truth with regard to his relationship with well-financed arms lobbyist Karlheinz Schreiber.

According to surveys, most Canadians had already reached the same conclusions, given the clear evidence presented at the Commission hearings.

Most reaction has also focused on who else violated ethics and openness rules in the highly questionable situations involving Rahim Jaffer and former Conservative Cabinet minister Helena Guergis, and Conservative Cabinet staff interfering with access-to-information requests

Meanwhile, too little attention has been paid to Prime Minister Harper appointing his supporters to the Senate and other posts, and to the recent rulings of the federal Ethics Commissioner that, in highly questionable ways, have created loopholes in ethics rules to let several Cabinet ministers involved in unethical situations off-the-hook.

As well, the lines drawn by federal access-to-information rules, and who may have violated them, remain in dispute in the Afghan detainee document situation.

While determining who has done wrong in the past is important, equally and arguably more important is preventing wrongdoing in the future.

As Justice Oliphant highlighted, if Mr. Mulroney did today some of the things he did 15 years ago, it would still not be illegal even though it most people would view it as unethical.

For all these reasons, the focus should be on whether federal political parties will work together to pass another Federal Accountability Act (FAA) to clean up the areas not addressed by the first FAA, and to help ensure everyone in federal politics is effectively required to act honestly, ethically and openly and to prevent waste.

Over the past few years, the Conservatives repeatedly claimed that their 2006 FAA cleaned up the federal government, but they were forced to admit recently that the Jaffer affair revealed loopholes that allow secret lobbying. (To see Democracy Watch's December 2009 Report Card on the Conservatives' 29 broken democracy reform and government accountability promises, click here)

The question now is, will the Conservatives and the other parties admit the existence of dozens of loopholes in federal good government rules, and finally close them and strengthen enforcement and penalties to ensure the rules are followed?

Unfortunately, Justice Oliphant was too restrictive when he recommended closing only a few loopholes in ethics rules by requiring Cabinet ministers and senior government officials to report all their activities to the Ethics Commissioner just before they leave the government and during their cooling-off period (to cover situations similar to Mulroney’s in his past relationship with Karlheinz Schreiber).

Justice Oliphant ignored the fact that there is no effective sanction against anyone in federal politics who fails to tell the truth, and that closing this loophole with a comprehensive honesty-in-politics law and high penalties would help restore voter confidence in government.

And while Justice Oliphant made a key recommendation to prohibit apparent conflicts of interest, he failed to address a key loophole that exempts federal politicians and senior officials from conflict rules when they are making decisions that apply broadly.  

Almost all their decisions apply broadly because almost all laws and policies apply broadly, and so this loophole makes it legal, for example, for every Cabinet minister and deputy minister to own shares in a company and still make decisions about changes to the law that affects that company.

Justice Oliphant also failed to recommend a cooling-off period during which part-time Cabinet staff and appointees, and senators, MPs and their staff (all of whom currently have no ethics rules after they leave office), and public servants, should be required to have their activities reviewed by the Ethics Commissioner for conflicts.

A cooling-off period for all of these people, on a sliding scale from one to four years depending on their position (longest for Cabinet staff, shortest for backbench MPs and their staff), would help ensure they don’t use their inside knowledge and access in unethical ways.

And while Justice Oliphant recommended a high penalty for ministers and senior officials who violate cooling-off period rules, he failed to recommend high penalties for violating other ethics rules (currently, the only penalty is a ridiculously low fine of up to $500 for violations of only a few disclosure rules).

Beyond penalties, Justice Oliphant also ignored the fact that the Ethics Commissioner and Senate Ethics Officer are unaccountable because they are not required to rule on complaints from the public, nor can an Ethics Commissioner ruling be challenged in court even if it is full of legal and factual errors.  (To see details about the Ethics Commissioner's weak enforcement record, click here)

Strangely, Justice Oliphant also completely ignored loopholes that allow for secret lobbying, even though he investigated Karlheinz Schreiber’s illegally secret lobbying. 

Currently unpaid, and part-time corporate, lobbyists are not required to register and disclose their activities, and secret communications between registered lobbyists and policy-makers are allowed (only pre-arranged oral communications are required to be disclosed). 

These loopholes must be closed or they will continue to be exploited by politicians and lobbyists who want to do secret deals that waste the public’s money and violate the public interest.

These loopholes also make it legal for Cabinet ministers and their senior staff and officials to lobby the day after they leave office, despite their supposed five-year cooling-off period, as long as they are careful about whom they lobby, and their pay arrangement.

Secret, unlimited donations of money, property or services are still legal to nomination race and party leadership candidates as long as they don’t use the donation for their campaign, and political parties and riding associations are still allowed to have secret trust funds.  Secret money in politics is a recipe for corruption, so such donations and funds must be banned.

Overall, excessive secrecy is legal in the federal government because neither the Information Commissioner nor the Parliamentary Budget Officer have the power to order the release of documents (even if it is in the public interest) nor to penalize anyone who violates open government rules. 

And the Auditor General is not required to regularly audit the expenses of MPs and senators even though this area of currently secret spending is full of conflicts of interest, and she cannot penalize anyone for violating spending rules.

As well, everyone (including political staff and the public) must be covered by the whistleblower protection system, and valid whistleblowers who report wrongdoing must receive more financial support during and after the investigation process to ensure they are protected and compensated for any retaliation they may face.

Finally, the Conservatives’ long promised Public Appointments Commission must be established to check the power of the Prime Minister and Cabinet to appoint their friends to key government positions.

The Conservatives were rewarded by increased voter support for promising a comprehensive Federal Accountability Act in the 2006 election.  They undermined not only good government, but also themselves, by breaking half of their FAA promises and practising politics as usual.  (To see Democracy Watch's December 2009 Report Card on the Conservatives' 29 broken democracy reform and government accountability promises, click here)

For the Conservatives to win back that support, or for any opposition party to win the next election, they will have to do even better by promising an FAA that closes all the remaining loopholes, empowers key enforcement agencies and makes them more accountable, and imposes high penalties to discourage anyone in federal politics from acting dishonestly, unethically or secretively.

If and when the federal parties finally make these changes, Canadians will be much closer to finally having the good government promised to them in Canada’s constitution 143 years ago.

For more details, go to Democracy Watch's Clean Up the System page