Fatal flaws in bill C-34
Watchdogs lack coherence, independence, transparency and accountability

OTTAWA--The national Government Ethics Coalition (GEC), chaired by Democracy Watch founder Duff Conacher, is calling on the federal government to close serious loopholes in Bill C-34. This bill, introduced in Parliament April 30, creates a new ethics enforcement system for government.

If the loopholes are not closed, the GEC says the new system will be hampered by conflicts and will be too weak to ensure honest, ethical government.

"Prime Minister Chretien has proposed a new swiss-cheese ethics enforcement system filled with holes that will prove to be fatal flaws," says Conacher, "especially given that the new ethics watchdogs will conflict with each other, be appointed by Cabinet, operate in secret, and be unaccountable to the public or the courts."

The bill provides for three new ethics watchdogs to replace the current Ethics Counsellor -- an Ethics Commissioner for cabinet ministers and MPs, a Senate Ethics Officer for senators, and the Registrar for Lobbyists will enforce the existing "Lobbyists' Code of Conduct."

This will very likely result in conflicting and different ethics standards for MPs compared to senators. The GEC maintains that one ethics watchdog should enforce all the ethics rules for cabinet ministers, MPs, senators, lobbyists and public servants.

The bill provides that the cabinet shall select the Ethics Commissioner and Senate Ethics Officer after "consultation" with opposition party leaders. It would also select the Registrar for Lobbyists.

The GEC says that having the cabinet select the ethics watchdogs will make those watchdogs biased in favour of the ruling party, given that they would investigate situations involving politicians from all parties; so all party leaders should have a veto over the selection of these watchdogs.

The bill says that only MPs and senators should be able to file complaints with the Ethics Commissioner about violations of the existing "Conflict of Interest and Post-Employment Code for Public Office Holders, the Public Office Holders Code." This code covers cabinet ministers, parliamentary secretaries, ministerial staff, and some cabinet appointees.

The GEC believes the public must have the right to file complaints about violations of any ethics rule with any ethics watchdog.

Bill C-34 prohibits an application to court to review the decisions of all three ethics watchdogs, and the Access to Information law will not apply to the watchdogs.

It is the GEC's contention that a right to appeal to court, and the Access to Information law, are essential accountability measures for all ethics watchdogs.

Under Bill C-34, the Ethics Commissioner will give secret advice to those covered by the "Public Office Holders Code." The GEC says that all advice and rulings of the Ethics Commissioner must be made public. In the case of advice, the identity of the politician who asked for the advice could be kept secret.

The bill does not include the ethics codes for ministers, MPs and senators. Nor does it give the Ethics Commissioner or the Senior Ethics Officer full investigative powers when investigating MPs or senators. Nor does it require them to make advice and rulings public. According to the GEC, the bill should include the ethics codes for all politicians, as well as investigative powers and public ruling requirements for their ethics watchdogs.

The Government Ethics Coalition is also concerned that Bill C-34 removes the rules in the "Parliament of Canada Act" that prohibit MPs and senators from being involved in government contracts, with no guarantee that these rules will be included in the new ethics codes to be passed by MPs and senators.

To provide an effective, comprehensive government ethics system, the GEC believes the following measures must be taken to close additional gaps in the current system:

  • the codes for ministers, MPs, senators, lobbyists and public servants should be changed into laws so they have greater force;
  • there should be high fines levied as a penalty for breaking any of these ethics laws;
  • the proposed new Ethics Commissioner should also be empowered to issue public advisory opinions and to investigate and publicly rule on alleged violations of ethics rules by public servants (instead of senior public servants enforcing public service ethics rules); and
  • the Ethics Commissioner should also be given the power to protect public servant "whistleblowers" -- replacing the current Public Integrity Officer who lacks key powers and does not make public rulings.

"Even if Bill C-34 and ethics rules for MPs and senators are passed, the ethics watchdogs will still not be independent, the public will be denied the right to file ethics complaints and appeal rulings, some ethics rulings will be kept secret, penalties for unethical behaviour will be too weak, and ethical whistleblowers will not be adequately protected," Conacher says. "These key gaps in the government's proposed new ethics system must be closed to ensure honest and ethical federal government."

The Ottawa-based Democracy Watch is one of 30 groups, nation-wide, that comprise the Government Ethics Coalition. For more information, call 613-241-5179 or visit http://www.dwatch.ca/ethicdir.html .