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

2. Why an ethics and conduct regime?
Internal and external value
Public trust in parliamentary process
Establishing/reflecting acceptable behaviour
Preventing misuse of position
Codes of conduct are prompted usually by one of two broad groups of factors;
Examples of corruption or misuse of office by legislators
Concern about public trust in the system of political representation – which is often caused by a)
Examples – UK story, Australia (see Brien), South Africa (IDASA)

3. 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.

4. 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
Prevention: 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 legislators
This includes three things:
Principles for ethical behaviour
Rules governing parliamentary conduct
Regulatory framework for enforcing and sanctioning
Some disagreement amongst authors about the difference between a code of conduct and a code of ethics. Therefore propose alternative, clearer terminology.

6. 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

7. 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

8. 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

9. 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?

10. 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

11. 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
Importance of context
Code 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)

12. 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.

13. Principles for ethical behaviour – International experience
Nolan Committee (UK), Seven Principles of Public Life
Selflessness 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

14. Principles for ethical behaviour
Nolan Committee (UK), Seven Principles of Public Life
Openness 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.

15. 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.

16. 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

17. 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
See Carney pp. 8-9
Probably 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?

18. 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
See Carney pp. 8-9
Probably 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?

19. 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

20. 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
Application – varies according to circumstances. E.g. MP representing farming interests, who is also a farmer. Impact in Canada/Aus/UK
Importance of transparency

21. 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
Distinguish between pecuniary interests (assets, liabilities and income) and non-pecuniary (personal, professional interests) – see HoC guidance on declarations
Explain - Why family?
Explain - Why Liabilities?

22. 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.
SEE HANDOUTS – South Africa and UK

23. 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
Every code of conduct to some extent restricts outside employment. See NDI handout.
More of a problem for executive than legislature

24. 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.
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; and
Members 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; and
specific 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.

25. 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
Many 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.

26. Describe the process by which detailed rules
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?
See NDI and Brien for examples

27. 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?
See NDI and Brien for examples

28. 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
Do the sanctions work in your parliament?
What problems of enforcement do you have?
What changes might help?

29. 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

30. 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

31. 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?

32. 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.
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

33. 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.
Importance of peer pressure as ultimate sanction