Parliamentary Ethics and Conduct Regimes: An overview

Parliamentary Ethics and Conduct Regimes: An overview Greg Power 18th February 2010

Why an ethics and conduct regime? • Internal and external value • Public trust in parliamentary process • Establishing/reflecting acceptable behaviour • Preventing misuse of position

Why an ethics and conduct regime? • Not just about dealing with corruption. • It should; • Establish common standards; • Prescribe and proscribe certain forms of behaviour; • Contain ways of tackling misdemeanours; • But, also provide streetlamps for finding the correct path.

Principles for a code of conduct • Prevention • Far better to stop unethical behaviour before it happens, than deal with the consequences • Simplicity • Clarity of understanding for public and legislators • Relevance • Rules must fit the particular institution • Protection • All public servants should be protected from external pressures to behave unethically

Terminology ‘Code of conduct’ or ‘Ethics and Conduct Regime’ The overarching scheme for establishing the ethical behaviour of legislators This includes three things: • Principles for ethical behaviour • Rules governing parliamentary conduct • Regulatory framework for enforcing and sanctioning

Structure of the handbook • Defining the problem • What is the regime designed to do? • Underlying principles • Detailed rules and content • Conflicts of interest • Disclosure • Restrictions • Regulation and enforcement

Defining the problem Three main catalysts • When rules have been broken (e.g. UK) • Public concern and distrust of politicians • General inappropriate behaviour and disregard of rules

Linking an ethical regime to existing rules • What should an ethics regime add to the rules? • Rules of procedure complex • Rules describe process, but not how to behave • Frequent lack of understanding in new institutions • Options for guiding MPs

Comparing Expertise: Defining the purpose of the regime Discuss your own political experience and identify the arguments for establishing or revising an ethical regime: • Identify the key ethics and conduct challenges in your parliament • What opportunities exist to draw attention to the issues and build support for an ethics and conduct regime? • How will and ethics and conduct regime address these challenges? What will it need to contain?

Defining the core principles for ethical regime • Why start with broad principles? • Broad basis on which to get agreement • Define the problem and solution • Draws on existing principles

Principles for ethical behaviour • Should establish the guiding principles within which MPs can work • Need to be realistic and achievable – they must emerge from the legislature • But also need to establish widely acceptable standards of behaviour • These are likely to include: honesty, integrity, abiding by the law, serving the public

Principles for ethical behaviour – Domestic sources Belize constitution, s. 121 Legislators should not act in such a way as • to place themselves in positions in which they have or could have a conflict of interest; • to compromise the fair exercise of their public or official functions and duties; • to use their office for private gain; • to demean their office or position; • to allow their integrity to be called into question; or • to endanger or diminish respect for, or confidence in, the integrity of the Government.

Principles for ethical behaviour – International experience Nolan Committee (UK), Seven Principles of Public Life • SelflessnessHolders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends. • IntegrityHolders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties. • ObjectivityIn carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit. • AccountabilityHolders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Principles for ethical behaviour Nolan Committee (UK), Seven Principles of Public Life • OpennessHolders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. • HonestyHolders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. • LeadershipHolders of public office should promote and support these principles by leadership and example.

Principles for ethical behaviour – International experience Canada • to recognise that service in Parliament is a public trust; • to maintain public confidence and trust in the integrity of Parliamentarians individually and the respect and confidence that society places in Parliament as an institution; • to reassure the public that all Parliamentarians are held to standards that place the public interest ahead of Parliamentarians' private interests and to provide a transparent system by which the public may judge this to be the case; • to provide for greater certainty and guidance for Parliamentarians in how to reconcile their private interests with their public duties; and • to foster consensus among Parliamentarians by establishing common rules and by providing the means by which questions relating to proper conduct may be answered by an independent, non-partisan advisor.

Principles for ethical behaviour – International standards United Nations Convention Against Corruption Article 8 • States should ensure integrity, honesty and responsibility amongst its public officials and should endeavour to apply ‘codes or standards of conduct for the correct, honourable and proper performance of public functions

Legislators and conflicts of interest • Legislators expected to balance number of competing interests • self • family • nation • constituency • political party • section of society • other interests/professions • Public office is based on a conflict between duty and interest. • It involves compromise and partiality • It is for legislators to decide how to balance them • A code of conduct should provide basis for those decisions

What constitutes a conflict of interest? A conflict of interest involves a conflict between the public duty and private interests of a public official, in which the public official has private-capacity interests which could improperly influence the performance of their official duties and responsibilities. OECD Guidelines for Managing Conflict of Interest in the Public Service The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties. UNCAC, Article 15

Rules governing parliamentary conduct Detailed rules prescribing and proscribing legislators’ behaviour • Three main aspects: • Transparency - disclosure and monitoring of outside interests • Restrictions - on what legislators may do in the light of their outside interests • Prohibition - of certain activities inside and outside parliament

Disclosure and declaration of interests • Purpose – to highlight potential conflicts of interest • Forms of disclosure • Ad hoc – in advance of activity • Routine – regularly updated register of interests • Implications of conflict of interest • Monitor potential conflict of interest • Prohibit further activity without sanction • Enact sanctions for transgression of code

Disclosure and declaration of interests • Who should register? • Legislator • Legislator’s family • What should be registered? • Assets • Income • Liabilities • Gifts and travel • Access to the register

Disclosure and declaration of interests Examples of registrable interests – South Africa • The number, nature and nominal value of share-holdings; • The identity of any extra employment (extra employment has to be approved by the MP’s political party); • The identity of any directorship or partnership; • The identity of remuneration of any consultancy (lobbying is prohibited); • The source and description of sponsorship; • Any interest in property; • Details of foreign travel; • Pensions; • Other benefits; • Gifts and hospitality above the value of R350. The confidential section requires disclosure of the following items: • Remuneration of extra employment; Remuneration of directorship or partnerships; The value of any other benefit; The private residence of an MP; The value of any pension.

Restrictions on outside activity • Public sector employment • Specified professions – judge, police, armed/security forces • Private sector employment – where business interests are likely to conflict • This often includes, restrictions on directorships, certain boards, and ownership of shares

Restrictions on outside activity Post-employment restrictions • Public office holders who modify their conduct to improve their post-employment prospects – e.g. favours or bribery; • Former members and officials who improperly use confidential government information acquired during their employment for personal benefit or to benefit another person or organisation; • Former members and officials who seek to influence government employees; • Re-employment or re-engagement of retired or redundant public officials.

Rules governing parliamentary conduct Lobbying and advocacy • Distinctions between legitimate and illegitimate lobbying less clear • Frequently there is an outright ban on paid advocacy • Even where there is no financial link MPs often have to declare their interest before intervening

Comparing Expertise: Determining the process for developing regulations Describe the process by which detailed rules can be developed: • Who will be responsible for deciding forms of disclosure? • How will you decide which groups need to disclose? • Who will determine the detail of what needs to be registered? • What sort of resistance are you likely to face from politicians? How will you overcome that resistance? • What process will you use for consulting and approving the contents of the regulations?

Models of regulation • External regulation – Taiwan, India • Judicial or quasi-judicial proceedings against Members • Issues over parliamentary sovereignty and immunity • Self-regulation by parliament – USA, Germany • Reports go to a parliamentary officer or committee • Issues over independence and effectiveness • Independent commissioner reporting to parliament – UK, Ireland • ‘Ethics commissioner’ investigates cases • Parliamentary committee decides on action and sanctions • Looks like self-regulation?

Sanctions and enforcement What sanctions are available? • Call to order, censure, reprimand, admonish • ‘Naming’ – and suspension from parliament for defined period • Loss of seniority, financial penalties, expulsion • Criminal proceedings

Why change the culture? Problems of misunderstanding or deliberate misuse • United Kingdom, MPs expenses – a failure of interpretation or deliberate corruption? Importance of consultation and development Training and education • India, Lok Sabha – An Introspection Guidance and interpretation

Developing a culture around the rules Role of the commissioner Investigation • Independent and thorough analysis of accusations • Filter for frivolous or politically motivated cases Educating and promoting standards of behaviour • Improving MPs’ understanding of the code • Creating an ethics regime - prevention as well as treatment Clarification • Offering guidance to MPs and committees • Interpreting the rules in ‘grey’ areas

Comparing Expertise: A Political Strategy Going back to the original objectives you identified for your ethics regime: • How will you make sure that politicians understand the new rules? • Are there existing structures within the parliament that can be used? • Are key figures (e.g. Presiding Officer, Secretary General or heads of political blocs) supportive? • How can you work with them to generate their support and address their objections?

Changing the culture – South Africa No set of rules can bind effectively those who are not willing to observe their spirit, nor can any rule of law foresee all possible eventualities which may arise or be devised by human ingenuity. This Code of Conduct has been formulated in as simple and direct a manner as possible. Its success depends both first and last on the integrity and good sense of those to whom it applies. Therefore, where any doubt exists as to scope, application or meaning of any aspect of this Code, the good faith of the member concerned must be the guiding principle.

Conclusions • The effectiveness of a parliament is determined by the attitudes, outlook and behaviour of its members as much as by its constitutional powers. As such, the new system must focus on changing behaviour as much as changing the rules; • A new regime which seeks to influence behaviour must emerge from the specific parliamentary circumstances within which it seeks to be effective. MPs must feel a degree of ownership of the rules if they are to regard them as legitimate and authoritative; • The process of developing the new regime is as important as the content that emerges. Developing a detailed set of rules should not be the only objective. If the rules are to be effective the process must also engage with MPs to build a set of core institutional values; • The creation of the ethics and conduct regime will not, by itself, solve all the problems faced by the institution. The principles, rules and regulations should be viewed as only one part of a wider effort to improve the functioning of the institution.

Parliamentary Ethics and Conduct Regimes: An overview