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Parliament and Ethics

The Federal Accountability Act: Ethics and Public Office

Élise Hurtubise-Loranger, Dara Lithwick

Issue | Are issues of ethics appropriately addressed in the laws and codes applicable to Canadian federal parliamentarians and public office holders?

Synopsis | This overview examines the regulation of ethics by conflict-of-interest and lobbying regimes, asking whether laws and codes are achieving their goals. The concept of private interest, for example, has been interpreted somewhat differently by the Conflict of Interest and Ethics Commissioner and the Commissioner of Lobbying of Canada.

Timing | Several 2010 documents – The Cheques Report (Ethics Commissioner) and the “Clarifications about political activities in the context of Rule 8” (Commissioner of Lobbying) – make the scrutiny of ethics regulations timely. So, too, do current legislative reviews of the Conflict of Interest Act and the Lobbying Act.

Ethics and politics share a long history. Some 2,500 years ago, Greek philosopher Aristotle considered the character virtues or moral principles that should govern individuals’ behaviour. For Aristotle, inquiry into ethics necessarily led to the study of politics, especially law-making, which addressed the principles that should govern communal behaviour in the polis (the “city”).

The interplay between ethics and politics is evident today on Parliament Hill. There is a Conflict of Interest and Ethics Commissioner, a Senate Ethics Officer, and a House of Commons Standing Committee on Access to Information, Privacy and Ethics.

However, despite its prevalence, the term “ethics” is not defined in any federal legislation or code. Rather, Canadian legislators have focused on regulating behaviour, primarily by encouraging public office holders to act in the greater public interest while disallowing the use of public resources to benefit private interests. A conflict of interest arises when the exercise of an official power, duty or function provides an opportunity to further a public office holder’s private interests, or those of relatives or friends, or to improperly further another person’s private interests.1

Laws and Codes Governing Ethical Behaviour

The most recent modifications to the federal “ethics” framework came with the 2006 Federal Accountability Act, legislation intended to make Canada’s federal government more accountable and to increase transparency and oversight in government operations. The Conflict of Interest Act, applicable to public office holders such as ministers, parliamentary secretaries, ministerial advisors and other ministerial staff, and the conflict of interest codes that the Senate and House of Commons adopted to govern their respective members’ conduct, are the main federal tools governing conflict of interest. The Lobbying Act and the Lobbyists’ Code of Conduct aim to ensure that federal lobbying activities are transparent and that lobbyists conduct themselves in accordance with ethical standards.

Aristotle’s study of ethics and politics built on the work of his teacher Plato (left). (Detail from Raphael’s The School of Athens)
Aristotle’s study of ethics and politics built on the work of his teacher Plato (left). (Detail from Raphael’s The School of Athens)
Image: Wikimedia Commons.

Whether these laws and codes governing ethical behaviour achieve their stated goals is an open question. A case in point is the concept of “private interest,” which has been interpreted differently by the Ethics Commissioner and the Commissioner of Lobbying of Canada.

Determining the Scope of "Private Interest"

In 2010, Ethics Commissioner Mary Dawson held that the concept of private interest, as set out in the House of Commons Members’ code and the Conflict of Interest Act, is limited to interests of a financial nature resulting in a pecuniary advantage, and does not extend to actions that may result in other types of advantage, such as political partisan advantage. This raises the question: Is “private interest” too narrowly defined to sufficiently limit conflicts of interest?

Commissioner Dawson seemed to suggest so in her April 2010 report to Parliament on the use of partisan identifiers on ceremonial cheques for Government of Canada funding announcements. While noting that “the interest in enhancing political profiles is a partisan political interest and not a private interest,” she also added that “the practice of using partisan identifiers in announcing government initiatives goes too far and has the potential to diminish public confidence in the integrity of Members and the governing institutions they represent.”2

In contrast, during the 2011 federal election, questions arose regarding the Commissioner of Lobbying Karen E.  Shepherd’s recent interpretation of Rule 8 of the Lobbyists' Code of Conduct. Rule 8 provides that “lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.” Commissioner Shepherd indicated that political activities undertaken by lobbyists could count as actions that put a public office holder in a conflict of interest by advancing the public office holder’s private interest.3 This implicitly suggests a broader interpretation of “private interest” than that taken by the Ethics Commissioner.

Reflecting on Conflicts of Interest

A statutory review of the Lobbying Act began in March 2011, and the Conflict of Interest Act is due for statutory review in 2012. With these reviews, parliamentarians will be able to reflect on the nature and scope of activities that should be considered conflicts of interest, as well as the broader question of the interaction between ethics and politics on Parliament Hill.

Further Reading

  1. Conflict of Interest Act, S.C. 2006, c. 9, s. 2, section 4; House of Commons, Standing Orders of the House of Commons including the Conflict of Interest Code for Members, section 8, 17 December 2010.
  2. Mary Dawson, The Cheques Report: The use of partisan or personal identifiers on ceremonial cheques or other props for federal funding announcements, Office of the Conflict of Interest and Ethics Commissioner, Ottawa, 29 April 2010, p. 22.
  3. Karen E. Shepherd, “Clarifications about political activities in the context of Rule 8,” Lobbyists’ Code of Conduct, Office of the Commissioner of Lobbying of Canada, 23 August 2010 (see the Commissioner’s website).

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