BENCHMARKING
set out principles rather than recommending a specific model.
Breaches of the Code Proper investigation of complaints is a key to the effectiveness of a code. This must begin with the process for making a complaint where a breach is suspected.
The receipt and investigation of complaints is at severe risk of being compromised by partisan considerations if controlled by parliamentarians with a party- political interest in the outcome. For the reason, we have recommended that complaints should be automatically referred for independent investigation to determine the facts in almost all circumstances. The only exception would be where there is evidence that the complaint itself is an abuse of process, intended to tarnish the reputation of a falsely accused person. The complaints process should enable such complaints to be rejected without publicity. This is crucial as the public can easily mistake an investigation with guiltiness rendering the final investigation decision (say not guilty) inconsequential and thus unfairly damaging. Investigation must be separated from partisan influence but the precise mechanism will depend on local structures and circumstances. In some cases, there are existing, effective anti-corruption bodies well-suited to undertake the task in accordance with the code; in other cases, there may need to be a new provision.
Once the facts have been established, these should be presented to the parliament in a public report and must be referred for prosecution if the evidence suggests the accused could be convicted of a legal offence. If in other cases a breach has been found, the House should determine what
“Parliamentarians, new and long- serving, often find themselves facing dilemmas about the ethics of decisions or actions. Recently elected parliamentarians especially may find themselves faced with ethical questions quite different to the types of decisions they had to make in their previous occupations.”
sanction should be applied. The code should indicate the available sanctions and penalties which might range from a humiliating public reprimand to expulsion from parliament. In extreme cases, a serial offender could be debarred from contesting elections.
If a complaint is not upheld, the accused parliamentarian should be publicly exonerated from the allegation.
Culture of ethical conduct The extent to which a code is respected and observed depends on both its provisions and the attitudes towards it by ordinary parliamentarians and by leading members of the House. Note that types of codes range from permissive all the way to prohibitive, with some hybrids between the two. While some (e.g. Deloitte & Touche LLP, 2015) suggest that permissive codes are more likely to enhance compliance in organisations, our aim is to combine the best
features of both approaches. We nevertheless suggest several measures that could contribute to the code working in practice: vigilant in detecting and acting to deter even minor breaches from which serious breaches may develop.
adviser should be routine and normal, with frequent informal contact between the ethics adviser and parliamentarians.
fellow parliamentarians peer- support for ethical conduct and counsel against unethical conduct.
and readily available in print, and online (including via smartphone) if resources permit.
should receive induction, including in the code of conduct and self-assessment of their individual ethical competence.
participate in activities to enhance their ethical competence at least once annually. These activities could be online, if resources permit. He or she should sign a declaration or provide evidence confirming having done so.
renewed following each general election, through debate of a resolution re-committing the House to the code and making any necessary updates.
Does size matter? Listening to parliamentarians talk about ethical conduct in their Houses, there seems be a tendency for smaller Houses to believe that unethical conduct is less likely to occur as unethical sub-cultures are less likely to develop. The small size of these houses seems to make it easy for parliamentarians to monitor each other’s conduct (which may act as a disincentive to
breaches). The lack of a party system in most of the smallest houses necessitates that parliamentarians work through consensus which allows them to identify with one another more closely. We don’t want to over-emphasize this observation as it has yet to be thoroughly researched. However, it does alert us to a possible advantage that smaller Houses may have and to a factor which larger Houses may need to take into account in designing and implementing their codes.
Making and re-making a code
Finally, how does a parliament, or a house, make or review a code? The code and any revisions must be the outcome of debate and deliberation in which all of the House’s parliamentarians have genuine opportunities to participate.
In addition, we believe that it would be valuable to appoint an advisory panel comprised of retired parliamentarians and retired superior court judges to review the code from time to time and report to the parliament on its operation immediately following each general election, in response to requests by the Presiding Officer and at such other times as it wishes. Whilst it is appropriate to look to other parliaments for inspiration, a code is essentially a matter for each individual House and a reflection of its commitment to enhancing the Integrity System of their nation, province, state or territory. The Benchmarks now being recommended for codes of conduct are an important opportunity for every parliamentarian, Clerk or Secretary General and other member of staff to contribute to strengthening the integrity of their parliament and to improve its performance in serving the public interest.
The Parliamentarian | 2015: Issue One | 41
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