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Trudeau’s ethics talk is great, but more needed to ensure everyone walks the talk

The following op-ed, by Democracy Watch Co-founder Duff Conacher, was published in edited form by the Hill Times on November 23, 2015, and by the Waterloo Record on December 12, 2015, and by on December 14, 2015.

Prime Minister Trudeau’s mandate letters to ministers (which he thankfully made public for the first time ever) importantly remind them that the PM’s accountability guide says they must be honest, impartial and maintain the highest ethical standards, including avoiding even the appearance of a conflict of interest.

However, the guide is not legally binding and neither the letters nor the guide sets out any penalties for violations or says the Prime Minister will suspend or demote, let alone fire, any minister who violates the rules.

The federal Conflict of Interest Act (which covers ministers, ministerial staff and Cabinet appointees including Deputy Ministers) also contains no penalties for violating its ethics rules.  Even worse, the Act directly contradicts the accountability guide as it is full of loopholes that, among other things: allow ministers and the others to be dishonest; mean the Act doesn’t cover them when they make general policy decisions (which are 99% of the decisions they make).

As a result, the law actually allows them and their family members and friends to have an unethical financial stake in, and profit from, 99% of their decisions.  Combined with weak enforcement by the Ethics Commissioner, the law should really be called “The Almost Impossible to be in, or be penalized for, a Conflict of Interest Act.”

In contrast, the ethics codes for federal government employees (all of whom have less power than ministers and senior government officials) not only contain the same strict rules as the ministers’ accountability guide – without any loopholes – but also say violators can be penalized, including being fired.

Prime Minister Harper’s accountability guide for ministers contained the same strict rules but he kept several ministers in Cabinet who violated the rules or the Act.

Prime Minister Trudeau’s letters to his ministers say “you can count on me to support you every day in your role as Minister.”  This sends a mixed message.  To make it clear he will not support dishonest, unethical actions, he should add his accountability guide’s strict ethics rules to the Conflict of Interest Act as soon as possible, and add strong, clear, mandatory penalties (up to and including being removed from Cabinet).

He should also require Ethics Commissioner Mary Dawson to do regular, unannounced audits of minister’s activities and communications (she already has the power to do such audits but has negligently refused to do them).  This will ensure everyone knows there is a high chance of getting caught and definite legal consequences for violations – consequences the Prime Minister cannot stop the Ethics Commissioner from imposing.

The Prime Minister should also strengthen the federal whistleblower protection law and extend it to cover Cabinet minister’s and MPs’ staff.  Currently, only federal government employees who blow the whistle on wrongdoing in government institutions can be protected from retaliation by the federal Integrity Commissioner (though the law is weak and the Commissioner has a weak enforcement record).

These changes would make the Canadian government’s ethics enforcement system meet international best-practice standards, and finally fulfill the commitments the government made a decade ago under the United Nations Convention Against Corruption.

If Prime Minister Trudeau doesn’t make these changes and/or protects rule violators as Prime Minister Harper did, it will encourage violations and break the trust he is trying to forge with voters.  Much of what is currently legal in federal politics is not viewed by the public as ethical – and as many scandals in the past decade have shown clearly, anyone who tries to excuse unethical actions will lose voter support faster than they can say “All the rules were followed.”

The most difficult ethics challenge most ministers and their staff will face is complying with the few strong rules in the Conflict of Interest Act that prohibit accepting gifts from people trying to influence them, and giving preferential treatment to anyone.  Some of their supporters, especially lobbyists, will both want to wine and dine them and want quick access and special treatment for their cause, government contract bid or grant application.  It will be difficult to say to them, as is required by the Act — first come, first serve in terms of communicating and meeting with me; no I can’t help you any more than I help anyone else, and; thank you but no I can’t accept anything from you.

Ministers are allowed to hire whomever they want as their staff (including, under the Conflict of Interest Act, their extended family members and any relatives of other ministers – which should be clearly prohibited).  They are each given a budget to hire about 15 central office staff, and about five staff in each regional office, and the Prime Minister’s Office hires an additional 50-80 staff people.  However, after these jobs are handed out, often to people who helped them win office, it is illegal for them to give any other preferential treatment to any of their supporters.

The Liberals should also strengthen the Lobbying Act and the very weak enforcement by the Commissioner of Lobbying and the RCMP to ensure no minister or their staff can get away with doing secret deals with any of the many Liberal supporters who will be lobbying them for favours.  The Liberals have been out of power for 10 years, so some of their supporters (especially those that helped with campaigns) will be expecting to be handed a ticket back on the government gravy train right away.

As it is illegal for ministers and staff to help Liberal supporters in any preferential way, and a hot-button issue for many voters, any scandals will destroy the trust the Liberals have finally won back after a decade.

Finally, Prime Minister Trudeau would also be wise to make public similar mandate letters for the Deputy Ministers he appoints.  His mandate letters to ministers say that the role of their Deputy Minister is “to support you in the performance of your responsibilities.”  In fact, their role is to support their minister only if the minister follows honesty, ethics, transparency and waste-prevention rules and laws (and all other rules and laws) and they are required to report any wrongdoing to the proper authorities.  His letters should remind Deputy Ministers that loyalty to the rule of law comes before loyalty to their minister, and that they will also be penalized for violations.

These changes by Prime Minister Trudeau would be good first steps to ensure his government keeps its commitment to “an open, honest government that is accountable to Canadians, lives up to the highest ethical standards, and applies the utmost care and prudence in the handling of public funds.”

Those are big words, and many big changes will be needed to ensure everyone walks Prime Minister Trudeau’s ethics talk.

Democracy Watch’s Government Ethics Campaign