ETHI Committee Report

NDP DISSENTING REPORT ON THE STANDING COMMITTEE ON ACCESS TO INFORMATION, PRIVACY AND ETHICS’ STATUTORY REVIEW OF THE CONFLICT OF INTEREST ACT

As the Official Opposition, the New Democratic Party is disappointed that the Committee missed an important opportunity to make recommendations that would strengthen Canada’s Conflict of Interest Act, and ensure greater accountability for public office holders.  As the Conservative government faces serious allegations, including of conflict of interest in the Prime Minister’s Office and in the Senate, public confidence in the integrity of Parliament has been shaken, and measures to tighten laws to prevent corruption and penalize rule breakers are needed now more than ever. 

Canadians are frustrated as they see increasing bending, breaking, and hiding from the rules in Ottawa. In response to Liberal corruption, the Conservative Party passed the Accountability Act; however, the past seven years of Conservative corruption and entitlement has only expanded and exploited the Acts many exemptions and loopholes. Given the dismal scandal rocking both the Senate and the Prime Minister’s Office, Canadians are looking for Parliament to recommit to the principles of Transparency, Accountability and Punishment for those who break these rules.

During the review, the Committee received numerous important recommendations from the Ethics Commissioner and from expert witnesses, yet few of those are reflected in the Committee recommendations. Additionally, serious proposals for increased stringency detailed in the Gomery Commission into the Liberal government’s sponsorship scandal, and the Oliphant Commission into former Conservative Prime Minister Brian Mulroney, were not considered.  More troubling still is the fact that many of the recommendations made in the Committee’s report do not reflect any of the testimony the Committee heard, or any of the briefs received, and we have to question their validity.  Notably, the Committee’s recommendations 1, 3, 4, 5, 7, 8, 9, 10, 12, 13, and 16  were not reflected in the evidence.

We take considerable exception to the recommendation to extend the conflict of interest act to all members of organizations that collectively bargain with the federal government.  According to the Public Service Labour Relations Board’s Report on Plans and Priorities 2013-14, “The PSLRA (Public Service Labour Relations Act) covers over 244,000 federal public service employees and applies to departments named in Schedule I to the Financial Administration Act, the other portions of the core public administration named in Schedule IV and the separate agencies named in Schedule V.”  All of these employees are members of organizations who collectively bargain with the federal government, and most, if not all are already covered by the Treasury Board of Canada Policy on Conflict of Interest and Post-Employment.[i]  Not only is the recommendation redundant, it would also be an enormous burden on the office of the Ethics Commissioner to have to administer an additional 244,000 public office holders.

In addition, we are concerned that the Committee’s recommendation number 11, which amends the Act to ensure “any order and decision of the commissioner be subject to judicial review where there is an error in law” reflects a lack of understanding of the Act in practice.  The majority of the Commissioner’s reports on investigations under the current Act are non-binding, and are not able to be judicially reviewed.  It is the Prime Minister’s responsibility to enforce the Commissioner’s recommendations.  There is no similar provision in law in Canada.

In their 2006 election platform, the Conservatives promised accountable government.  Among key planks of their platform, they promised to:

• Give the Ethics Commissioner the power to fine violators.
• Enshrine the Conflict of Interest Code into law.
• Allow members of the public – not just politicians – to make complaints to the Ethics Commissioner.
• Make part-time or non-remunerated ministerial advisers subject to the Ethics Code.[ii]

Unfortunately, the Conservatives failed to keep their promises.   None of those provisions were included in the Accountability Act, and  none of those recommendations were made in this Committee’s report.  The Official Opposition, however, would make these and further recommendations to amend the Act, as below:

1. Give the Commissioner the power to administer financial penalties and other penalties for breaches of the Act where an examination results in the finding of a contravention, including but not limited to :
1. Suspension for a specified period[iii]
2. Suspension of Member’s right to vote for a specified period[iv]
3. Require Reimbursement of the value of the gift, hospitality or benefit received.
4. Impose a fine not exceeding $ 5000[v]
2. Enshrine Ministerial accountability guidelines into the Act: Amend section 16 of the Act to include Annex B entitled: ‘’Fundraising and Dealing with Lobbyists: Best Practices for Ministers, Ministers of State and Parliamentary Secretaries’’, as follows: 

1. Ministers, Ministers of State and Parliamentary Secretaries should not seek to have departmental stakeholders included on fundraising or campaign teams or on the boards of electoral district associations.
2. Ministers, Ministers of State and Parliamentary Secretaries should ensure that government facilities and equipment, including ministerial or departmental letterhead, are not used for or in connection with fundraising activities.
3. Ministers, Ministers of State and Parliamentary Secretaries and their staff should not discuss departmental business at any fundraising event, and should refer any person who wishes to discuss departmental business to make an appointment with the Minister’s office or department as appropriate.
4. Ministers, Ministers of State and Parliamentary Secretaries should ensure that fundraising communications issued on their behalf do not suggest any connection between fundraising and official government business. [vi]

3. Allow members of the public to bring complaints, not just MPs[vii]
4. Extend the definition of “Ministerial staff” to include all work including contract and volunteer work.[viii]
5. Expand the definition of Public Office Holder to include all Governor in Council appointees, including the Governor of the Bank of Canada[ix]
6. Empower the Commissioner to continue investigations that have been referred to the RCMP.
7. Reduce the value of a gift that requires disclosure from $200 to $100[x]
8. Maintain automatic divestment rules for reporting public office holders with significant decision making power or access to privileged information, including, but not limited to, Ministers, Ministers of State, Parliamentary Secretaries, Chiefs of Staff, Deputy Ministers, Ministerial staff and employees of Ministers’ offices. Maintain automatic divestment for appointees to agencies and bodies with broad mandates. All other appointees should be subject to a case-by-case divestment of controlled assets. [xi]
9. Define and toughen post-employment and secondary employment rules for MPs and Senators
10. Include an apparent conflict of interest in the definition of a conflict of Interest

New Democrats welcome the opportunity to strengthen the Conflict of Interest Act. We see this as an opportunity to recommit to raising ethical standards in Parliament and closing the loopholes that are currently threatening the spirit of accountability.   We urge the government to consider and adopt our recommendations.