BENCHMARKING
their parliament. By fiduciary relationship we mean that parliamentarians must put the public interest – the interests of the people in aggregate – ahead of all personal interests or, for example, the interests of family, friends or business associates. Even political parties exist to serve the public interest. This responsibility to exercise power solely on behalf of the people is known as the public trust principle.
It follows from the public trust principle that each parliamentarian should have guidance and direction on which he or she can draw whenever doubt arises about the correct thing to do when faced with a decision or action. In the same way, the parliament should be able to intervene if and when it appears that the public interest and hence the parliament’s constitutional role may have been subverted by a parliamentarian’s action. A parliament with a strong code of conduct that is rigorously enforced reduces the risk of unethical, illegal or otherwise corrupt behaviour by parliamentarians and is more likely to reflect the public trust principle in the decisions and actions of individuals and the institution. Conduct in accordance with the public trust principle supports the very concept of democracy.
are important whilst others simply reflect the ways in which terms are used in those parliaments. For example, Codes of Conduct and Codes of Ethics are often distinguished in the study of codes.
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What do codes include? Codes to guide the conduct of parliamentarians came in a variety of forms in different parliaments according to our survey and interviews. Titles and forms include: Code of Conduct (e.g. House of Commons, UK); Code of Official Conduct; Code of Ethics (e.g. Malta); Conflict of Interest Code (e.g. Canadian parliaments); rules of procedure (e.g. Standing Orders); and Act of Parliament.
Some of these differences
In the case of codes of ethics, they: “are usually products of professional associations. They serve as a quality assurance statement to society and provide a set of standards for appropriate conduct for members of the profession that issues the code. Codes of ethics for those in government service challenge employees to identify with shared professional values that describe appropriate actions about acting rightly in the service of the public good,” according to Willa Bruce (1996, p.23). Willa Bruce argues that codes of conduct are quite different. They “. . . are more concrete and practical . . . for they represent executive orders or legislatively defined and enforceable behavioural standards with sanction for violation. They contain a list of the kinds of behaviour required in a given set of circumstances and provide direction to those whose conduct they govern. Codes of conduct contain minimalistic prohibitions to unquestionably subversive or criminal acts. They are designed to protect the government employee, the client, and/or the public at large,” (1996, p.24). In practice, those distinctions have little significance. Some parliaments use the term code of ethics for codes that have similarities to codes of conduct. Not only do the forms of codes vary, so does the manner in which they are made and their legal status. The weakest basis for a code is a simple resolution of the House. Unless determined otherwise, a resolution lapses when the parliament is prorogued or dissolved. At the other end of the spectrum, a code introduced by an act of
parliament is permanent and can be enforced according to processes and penalties incorporated into its provisions. Where an act of parliament is used, it is usually an act dealing with a number of parts of the parliamentary integrity system, such as also creating a commissioner’s office. It typically includes the code as part of the main text of the act or as a schedule to the act.
An intermediate form is to include provisions within rules of procedure (e.g. Standing Orders). However, codes of conduct are much broader and about much more than rules for the conduct of debate and deliberation. As a result, if it forms part of the Standing Orders or other procedural rules, there is a risk a code will be limited to narrowly conceived matters related to procedure. We find that codes are best developed as separate documents. Whether a code should be an Act of parliament depends on several factors, one of the most important being whether the parliament is bicameral. If so, the Act would bind both Houses equally. However, the autonomy of each House would be compromised; neither House would be able to have a code with features specific to it, or at least could not avoid any of the provisions then applying to both. It would of course be possible to supplement the common code with an additional code including provisions specific to only the House which adopted them. However, that would be a messy solution as parliamentarians and others would need to refer to two documents, one of which appeared to have lesser status. The potential difficulties of a common code for a bicameral parliament were revealed in the Australian Parliament in 2011. After extensive deliberations in House of Representatives and Senate committees and
informal liaison between them, the provisions of a code of conduct were agreed to by the House of Representatives. However, the Senate Committee “was not convinced that an aspirational, principles-based code would necessarily improve perceptions of parliamentarians and their behaviour”. Further consideration lapsed.
Life is simpler for unicameral parliaments; an Act of parliament is a simple, familiar and appropriate way for them to adopt a code.
However, there may be other reasons for adopting a code through a resolution rather than an Act. For example, a resolution does not require any action by the head of state. Even where established convention ensures that the head of state acts only as advised, the symbolism of the House alone determining the code regulating its members’ conduct, as is the case with rules of procedure, may be important.
Variety of provisions Our research has found a wide range of provisions in codes affecting the conduct of members. These range from mild provisions more concerned with etiquette and treating fellow parliamentarians (and the House in session) with courtesy, respect, and dignity. Whilst these are of course desirable, they make little contribution to reducing the risks of improper, unethical or illegal conduct. We have identified several key provisions believed to be important to a code contributing to an effective integrity system. The features include: underlying principles; defining of acceptable conduct; conflict of interest; providing advice for Members’ complaints procedures; provision for investigation of facts, decision- making on allegations; sanctions and penalties; how to prepare, review and revise a code; and, a
The Parliamentarian | 2015: Issue One | 39
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