Presentation on theme: "Parliamentary Ethics and Conduct Regimes: An overview"— Presentation transcript:
1Parliamentary Ethics and Conduct Regimes: An overview Greg Power18th February 2010
2Why an ethics and conduct regime? Internal and external valuePublic trust in parliamentary processEstablishing/reflecting acceptable behaviourPreventing misuse of positionCodes of conduct are prompted usually by one of two broad groups of factors;Examples of corruption or misuse of office by legislatorsConcern about public trust in the system of political representation – which is often caused by a)Examples – UK story, Australia (see Brien), South Africa (IDASA)
3Why 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.
4Principles for a code of conduct PreventionFar better to stop unethical behaviour before it happens, than deal with the consequencesSimplicityClarity of understanding for public and legislatorsRelevanceRules must fit the particular institutionProtectionAll public servants should be protected from external pressures to behave unethicallyPrevention: Government ethics laws seek to prevent unethical conduct before it occurs. Although the regulations include punishing those who override them, they must focus more on prevention rather than punishment.Simplicity: It is imperative that government ethics laws are simple and clear. There is general consensus that it is extremely difficult for anyone, be it a politician or a public servant, to obey rules laws or regulations that they do not understand.Relevance: The ethics laws/regulations must be tailored to fit the particular government or institution’s level, size, nature and culture. For instance you cannot take Parliament ethics laws as they are and impose them on the public service because they are not tailored to fit public servants but elected representatives.Protection: Public servants are sometimes pressurised by private individuals or private institutions to act in an unethical way (e.g. they are offered a gift in exchange for a favour). More often than not nothing is done to these individuals or institutions but if government employees are caught disciplinary measures are normally taken against them. Given this, there is a need for the government to protect its employees. So the regulations should also aim to protect public servants.
5‘Ethics and Conduct Regime’ Terminology‘Code of conduct’ or‘Ethics and Conduct Regime’The overarching scheme for establishing the ethical behaviour of legislatorsThis includes three things:Principles for ethical behaviourRules governing parliamentary conductRegulatory framework for enforcing and sanctioningSome disagreement amongst authors about the difference between a code of conduct and a code of ethics. Therefore propose alternative, clearer terminology.
6Structure of the handbook Defining the problemWhat is the regime designed to do?Underlying principlesDetailed rules and contentConflicts of interestDisclosureRestrictionsRegulation and enforcement
7Defining the problem Three main catalysts When rules have been broken (e.g. UK)Public concern and distrust of politiciansGeneral inappropriate behaviour and disregard of rules
8Linking an ethical regime to existing rules What should an ethics regime add to the rules?Rules of procedure complexRules describe process, but not how to behaveFrequent lack of understanding in new institutionsOptions for guiding MPs
9Comparing 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 parliamentWhat 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?
10Defining the core principles for ethical regime Why start with broad principles?Broad basis on which to get agreementDefine the problem and solutionDraws on existing principles
11Principles for ethical behaviour Should establish the guiding principles within which MPs can workNeed to be realistic and achievable – they must emerge from the legislatureBut also need to establish widely acceptable standards of behaviourThese are likely to include: honesty, integrity, abiding by the law, serving the publicImportance of contextCode of ethics and code of conduct are often used interchangeably. There is, however, an important distinction. A code of ethics identifies those ethical principles and values that are regarded as the foundation of an organisation. They are often expressions of the values of an organisation, within a particular culture, time and place. Typically, codes of ethics will embody ethical values that are cross cultural, such as justice, fairness and impartiality. Such codes are usually aspirational, rather than prescriptive, and they do not often have implementation and enforcement mechanisms.(54)While codes of ethics can be useful in defining the values of an organisation, they will have little effect unless there are appropriate compliance mechanisms in place.(55) This points to the difficulty in using only a code of ethics:at the heart of a code of ethics is an indeterminacy or vagueness concerning the sorts of actions prescribed and proscribed. Different people possess different interpretations of the ethical values set out in a code, and the sorts of actions that naturally flow from observing those values. Codes of ethics, if used as the sole measure of ethical guidance and without supporting institutional arrangements, such as compliance committees, leave too much to discretion. Rather than being an antidote to misbehaviour, they can in fact be a recipe for abuse.(56)
12Principles for ethical behaviour – Domestic sources Belize constitution, s. 121Legislators should not act in such a way asto 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; orto endanger or diminish respect for, or confidence in, the integrity of the Government.
13Principles for ethical behaviour – International experience Nolan Committee (UK), Seven Principles of Public LifeSelflessness Holders 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.Integrity Holders 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.Objectivity In 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.Accountability Holders 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.Carney pp
14Principles for ethical behaviour Nolan Committee (UK), Seven Principles of Public LifeOpenness Holders 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.Honesty Holders 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.Leadership Holders of public office should promote and support these principles by leadership and example.
15Principles for ethical behaviour – International experience Canadato 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; andto 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.
16Principles for ethical behaviour – International standards United Nations Convention Against CorruptionArticle 8States 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
17Legislators and conflicts of interest Legislators expected to balance number of competing interestsselffamilynationconstituencypolitical partysection of societyother interests/professionsPublic office is based on a conflict between duty and interest.It involves compromise and partialityIt is for legislators to decide how to balance themA code of conduct should provide basis for those decisionsSee Carney pp. 8-9Probably legislators face the widest range of potentially conflicting interests: personal, representational and other private pecuniary and non-pecuniary interests. Certain interests are personally inherent: as a resident of a town or province, as a parent, spouse, or child, as a female or male, as indigenous or non-indigenous and so on. Other interests arise from the representative role: as a member of the legislature, as the representative of his or her electorate and as a member of a political party. Further interests arise from outside activities as a member of a non-political organisation, as a businessman, professional, farmer, grazier, or employee. These wide-ranging interests include therefore both pecuniary and non-pecuniary interests.Yet, despite all these potential conflicts, the legislator must endeavour to act only in the "public interest". Ethically that requires in each case the exclusion of all irrelevant considerations and the consideration of only those which are relevant. Which of those interests are ethically irrelevant really depends on the risk each interest poses to the process of decision-making. That risk varies in each of the three categories referred to. The risk is least with inherent interests while more acute with those pecuniary interests from outside activities. But at the end of the day, the obligation to act in the public interest requires that precedence be given to the public interest at stake over the private and personal interests of the official.We have to realise that public office is based on a conflict between duty and interest. We would be deluding ourselves if we did not start on the premise that politics is concerned about compromise, partiality and self interest behaviour. The problematic question is where on the spectrum does that behaviour become unacceptable?
18What 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 ofInterest in the Public ServiceThe 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 15See Carney pp. 8-9Probably legislators face the widest range of potentially conflicting interests: personal, representational and other private pecuniary and non-pecuniary interests. Certain interests are personally inherent: as a resident of a town or province, as a parent, spouse, or child, as a female or male, as indigenous or non-indigenous and so on. Other interests arise from the representative role: as a member of the legislature, as the representative of his or her electorate and as a member of a political party. Further interests arise from outside activities as a member of a non-political organisation, as a businessman, professional, farmer, grazier, or employee. These wide-ranging interests include therefore both pecuniary and non-pecuniary interests.Yet, despite all these potential conflicts, the legislator must endeavour to act only in the "public interest". Ethically that requires in each case the exclusion of all irrelevant considerations and the consideration of only those which are relevant. Which of those interests are ethically irrelevant really depends on the risk each interest poses to the process of decision-making. That risk varies in each of the three categories referred to. The risk is least with inherent interests while more acute with those pecuniary interests from outside activities. But at the end of the day, the obligation to act in the public interest requires that precedence be given to the public interest at stake over the private and personal interests of the official.We have to realise that public office is based on a conflict between duty and interest. We would be deluding ourselves if we did not start on the premise that politics is concerned about compromise, partiality and self interest behaviour. The problematic question is where on the spectrum does that behaviour become unacceptable?
19Rules governing parliamentary conduct Detailed rules prescribing andproscribing legislators’ behaviourThree main aspects:Transparency - disclosure and monitoring of outside interestsRestrictions - on what legislators may do in the light of their outside interestsProhibition - of certain activities inside and outside parliament
20Disclosure and declaration of interests Purpose – to highlight potential conflicts of interestForms of disclosureAd hoc – in advance of activityRoutine – regularly updated register of interestsImplications of conflict of interestMonitor potential conflict of interestProhibit further activity without sanctionEnact sanctions for transgression of codeApplication – varies according to circumstances. E.g. MP representing farming interests, who is also a farmer. Impact in Canada/Aus/UKImportance of transparency
21Disclosure and declaration of interests Who should register?LegislatorLegislator’s familyWhat should be registered?AssetsIncomeLiabilitiesGifts and travelAccess to the registerDistinguish between pecuniary interests (assets, liabilities and income) and non-pecuniary (personal, professional interests) – see HoC guidance on declarationsExplain - Why family?Explain - Why Liabilities?
22Disclosure and declaration of interests Examples of registrable interests – South AfricaThe 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.SEE HANDOUTS – South Africa and UK
23Restrictions on outside activity Public sector employmentSpecified professions – judge, police, armed/security forcesPrivate sector employment – where business interests are likely to conflictThis often includes, restrictions on directorships, certain boards, and ownership of sharesEvery code of conduct to some extent restricts outside employment. See NDI handout.More of a problem for executive than legislature
24Restrictions on outside activity Post-employment restrictionsPublic 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.Public office holders who modify their conduct to improve their post-employment prospects. Such conduct can involve favouring private interests over official duty or outright bribery, where a member or official solicits post employment in return for corrupt performance;Former members and officials who improperly use confidential government information acquired during their employment for personal benefit or to benefit another person or organisation. This does not include the information that becomes part of an individual’s personal skills and knowledge, which can be used legitimately to gain other employment;Former members and officials who seek to influence government employees. This involves former members and officials putting pressure on former colleagues or subordinates to act partially by seeking to influence their actions or securing favours. This can occur in many ways, such as through informal contact and lobbying;Re-employment or re-engagement of retired or redundant public officials. This might involve:Senior members and officials receiving generous redundancy compensation pay-outs and re-entering the public service in non-executive positions, while keeping their full redundancy payments;Members and officials leaving public employment only to be re-engaged as consultants or contractors at higher rates of pay to perform essentially the same functions; andMembers and officials who decide to go into business and to bid for work from their former employee after arranging their own redundancies.Starr- Sharp report –When public office holders leave government, they take with them two kinds of information:general understanding and knowledge of the way government operates, its structures and personalities; andspecific confidential information about government policy or about entities regulated by the government.Our view is that the more knowledge of the first type is carried to the private sector, the better. It is more efficient for government and the private sector to understand correctly how the other operates, and for the private sector to know the appropriate procedures to follow in dealing with government, and which officials to deal with on a particular matter. The second type of information - that which is sensitive or confidential - is likely to become dated in a relatively short time. However, to the extent that it can give an unfair advantage to particular interests, we believe it is improper, and in some respects unethical, to transmit this information out of the government. Of course, those who have been in government have taken an oath or affirmation of secrecy with respect to information acquired in the course of their work, and this is one factor to be taken into account. Another factor, is that public office holders have a fiduciary duty to government, based on the public trust implicit in the office or position they hold in the public sector, and this fiduciary duty arguably must be respected in the post-employment period.
25Rules governing parliamentary conduct Lobbying and advocacyDistinctions between legitimate and illegitimate lobbying less clearFrequently there is an outright ban on paid advocacyEven where there is no financial link MPs often have to declare their interest before interveningMany mechanisms distinguish between a pecuniary interest which is held in common with the general community or some group thereof and that which is more specifically enjoyed by the official. For example, a pecuniary interest of a legislator as a farmer might arise in legislative proceedings concerned with the provision of agricultural subsidies. One formula in common usage is to allow full participation on the basis that it is legislation of general application which affects the legislator merely as a member of the public or as one of a broad class of persons. On the other hand, if the subsidy were to be provided only to a corporation of which the legislator was a substantial shareholder, the legislator ought to withdraw from a legislative committee scrutinising the proposed legislation.A similar approach is possible with non-pecuniary interests. This was recognised by the Third Report of the Nolan Committee (UK) which classified non-pecuniary interests according to the level of likely bias: an interest with a real danger of bias because the effect of the decision goes beyond the effect on the general populace; or an interest which the public might reasonably think could influence the decision. Declaration and withdrawal would be required in the former case whereas declaration alone in the latter. It is important therefore that in developing standards, sufficient regard is paid to the assessment of risk.
26Describe the process by which detailed rules Comparing Expertise: Determining the process for developing regulationsDescribe the process by which detailed rulescan 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?See NDI and Brien for examples
27Models of regulation External regulation – Taiwan, India Judicial or quasi-judicial proceedings against MembersIssues over parliamentary sovereignty and immunitySelf-regulation by parliament – USA, GermanyReports go to a parliamentary officer or committeeIssues over independence and effectivenessIndependent commissioner reporting to parliament – UK, Ireland‘Ethics commissioner’ investigates casesParliamentary committee decides on action and sanctionsLooks like self-regulation?See NDI and Brien for examples
28Sanctions and enforcement What sanctions are available?Call to order, censure, reprimand, admonish‘Naming’ – and suspension from parliament for defined periodLoss of seniority, financial penalties, expulsionCriminal proceedingsDo the sanctions work in your parliament?What problems of enforcement do you have?What changes might help?
29Why change the culture?Problems of misunderstanding or deliberate misuseUnited Kingdom, MPs expenses – a failure of interpretation or deliberate corruption?Importance of consultation and developmentTraining and educationIndia, Lok Sabha – An IntrospectionGuidance and interpretation
30Developing a culture around the rules Role of the commissionerInvestigationIndependent and thorough analysis of accusationsFilter for frivolous or politically motivated casesEducating and promoting standards of behaviourImproving MPs’ understanding of the codeCreating an ethics regime - prevention as well as treatmentClarificationOffering guidance to MPs and committeesInterpreting the rules in ‘grey’ areas
31Comparing 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?
32Changing 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.There will always be those who seek to get around such regulations - this does not devalue the importance of a code in the first place
33ConclusionsThe 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.Importance of peer pressure as ultimate sanction