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Federal ethics and related rules a loophole-filled, weakly enforced bad joke
Oliphant Commission report's recommendations continue to be ignored by Conservatives

Set out below is an op-ed by Democracy Watch Board member Duff Conacher which was published in the September 12, 2011 edition of the Hill Times

While your article clears up one key issue about MP and Senate ethics codes, there are many other major problems with federal ethics rules (Fournier sends NDP MP frank fact check on Senate ethics code - Hill Times article, Aug. 22).


First, the Conflict of Interest Act contains the same huge loophole in its conflict of interest measures as the MP and Senate ethics codes.  In case readers don't know, Cabinet ministers, their staff, Cabinet appointees and senior government officials are covered by the Act.


In the codes and Act, this loophole allows people to take part in decision-making processes about matters in which they have a financial or other personal interest (as long as the decision applies generally).


Almost every decision made on Parliament Hill is about policies that apply generally -- the only decisions that apply specifically are hiring staff, handing out contracts (which politicians are not allowed to be involved in), and approving or rejecting some licenses, mergers and takeovers (which happens rarely, and only involves a few Cabinet ministers).


For example, the Finance Minister can legally own $1 million in shares of a bank, and still make the decisions about whether or not to change the Bank Act.


An MP can own a food company and take part in committee hearings reviewing the Food and Drug Act.  A senator can sit on the board of any company and take part in a review of a proposal to add corporate responsibility measures to the Canada Business Corporations Act or any other laws that apply to their industry (and many do).


And the PMO's Chief of Staff, Nigel Wright, can take part in all general Cabinet decisision-making processes, even those that affect his financial interests in various companies (yes, the Ethics Commissioner's pretend ethics "screen" for Mr. Wright is as full of holes as a screen door).


To remind everyone, this loophole was added to the Cabinet ethics rules by Paul Martin on the first day he became Prime Minister in December 2003.  Before that, although it was never enforced, Cabinet ministers and other senior officials were required to avoid even the appearance of a conflict of interest (including more than financial interests).


Martin added the loophole at the same time as enforcement of the rules was likely to increase, and by adding the loophole he could continue to take part in decisions that affected the shipping company he owned.


Also to remind everyone, the Conservatives promised in their 2006 election platform to remove this loophole -- but they broke that promise along with more than half of their other Accountability Act promises.


In fact, the conflict-of-interest measures in the codes and Act are so loophole-filled, they are redundant.  To violate them you would automatically be in violation of the measures in the Criminal Code and/or the federal Financial Administration Act (FAA) that prohibit public officials helping themselves, their family members or their friends to government money or property.


A second key problem is that the staff of MPs and senators, and some Cabinet staff and appointees, are not covered by any ethics rules (except the Criminal Code and FAA).


The solution to these two problems is to prohibit everyone from being in the appearance of a conflict of interest.   Currently, ironically, this prohibition only applies to junior government employees under their Values and Ethics Code (although this code is not enforced at all effectively, in part because of the very weak federal whistleblower protection system).


Justice Oliphant in his May 2010 report on the Mulroney-Schreiber affair made 18 recommendations, including that the appearance rule be added to the Conflict of Interest Act.  The Conservatives have shown their truly unethical stripes by failing so far to even issue a response to Oliphant's recommendations.


A third key problem is that lobbyists are allowed by an explicit loophole in House and Senate ethics rules to give MPs and senators and their families the gift of travel anywhere in the world, as many times as they want each year.  And they are also allowed by loopholes in the Canada Elections Act to give secret, unlimited loans and donations of money, property and services to federal nomination race candidates and non-MP party leadership race candidates.  These ridiculously unethical loopholes must be eliminated.


A fourth key problem is that several loopholes in the Lobbying Act's definition of "lobbying" undermine the so-called five year ban on lobbying after you leave your federal political or government job -- in fact, everyone lobby the government in secret the day after they leave (as the Rahim Jaffer and Bruce Carson cases have made clear).


These loopholes must be eliminated, and cooling-off periods of one to five years must be established for everyone.  The more decision-making power you have, the longer you should be prohibited from lobbying, and everyone should be required to report their activities to the Ethics Commissioner regularly (as Oliphant also recommended).


A fifth key problem is that the Prime Minister and Cabinet can appoint almost anyone, including friends and party cronies, to more than 3,000 positions, many of them at key law enforcement agencies, commissions and tribunals.  To remind everyone, the Conservatives promised in the 2006 federal election to establish a Public Appointments Commission to check this patronage power, but have failed to keep their promise.


A sixth key problem is that some rules are enforced by the House of Commons' secretive Board of Internal Economy so the public is kept in the dark about violators (as the Judy Sgro case made clear).  The Board must be required to operate openly and issue public decisions.


A seventh key problem is that the Senate Ethics Officer is under the control of a committee of senators (he cannot even investigate unless the committee allows him to do so), and the Ethics Commissioner is not required to investigate complaints from the public, and her rulings cannot be challenged in court even if she makes an error of fact or law.


Also, the Senate Ethics Officer, Ethics Commissioner and Commissioner of Lobbying do not audit anyone to ensure they are complying with ethics rules, and ethics rules for public servants are enforced by public servants themselves, and inquiries into scandals can only be called by Cabinet ministers (who usually want to cover up scandalous activities).  All of these enforcement flaws must be corrected.


An eighth key problem is that the Access to Information Act is full of loopholes, and the Information Commissioner lacks the power to order the release of documents and to penalize violators of the few effective access rules on the books.  As a result, unethical secrecy is legal in federal politics (as the Sebastian Tognieri case makes clear).


Again to remind everyone, the Conservatives promised in 2006 to close these secrecy loopholes and give the Commissioner these powers, but they broke their promise.


Finally, no one in federal politics is required to be honest (the Conservatives' so-called Accountability Act actually deleted this requirement from the Conflict of Interest Act in 2006 (not that the rule was ever enforced in the past).  A strong honesty-in-politics law is needed to solve the problem of rampant, daily dishonesty that is a major cause of voter cynicism and low voter turnout.


So, here we are 144 years after Canada became a country, and 15 years after the loopholes and flaws set out above were clearly and publicly identified by Democracy Watch -- and still no one in federal politics is effectively required to act honestly, ethically and openly.


It is enough to make one despair but, as Jack Layton recently wrote in his open letter to all Canadians, optimism is better than despair.


As a result, I remain optimistic that federal politicians and government officials will soon, finally, work together to close the loopholes and correct the flaws in federal ethics, political finance, lobbying, whistleblower protection and open government laws and rules, and to strengthen enforcement.


The opportunity to make these changes is wide open as all these key laws must be reviewed by Parliament over the next year.  The key questions are, will any politician or party be a leader in making federal politics better, in actually, finally, fixing Ottawa?  And will other politicians and parties follow that lead, and cooperate in making these key changes?

For more details, go to Democracy Watch's Government Ethics Campaign and Money in Politics Campaign pages


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