Thank you, Mr. Speaker.
Members’ Conduct Guidelines
The Legislative Assembly of the NWT first established a self-imposed code of behaviour during the 12th Assembly. Each subsequent Assembly, except the 15th, formally adopted a similar code of conduct.
The Code of Conduct was amended by the 18th Assembly to put greater emphasis on effective representation. An excerpt from the Conflict of Interest provisions of the Legislative Assembly and Executive Council Act was added to help ensure Members arrange their private matters so as to maintain the trust and confidence of the public. A commitment to respect and abide by the laws of the land was also incorporated into the revised code.
For the first time, Members of the 18th Assembly formally signed copies of the Conduct Guidelines before the Clerk. These signed copies are publicly available and posted on the Assembly’s website. This demonstrates Members’ collective commitment to the spirit and intent of the Conduct Guidelines (see Appendix A).
Oath of Office
Sworn oaths of office are another mechanism obligating Members to a standard of conduct. The Legislative Assembly’s oaths of office for Members and Ministers are set out in Schedule B of the Legislative Assembly and
Executive Council Act. For example:
I, (Member’s name), do solemnly and sincerely promise and swear that I will duly and faithfully and to the best of my skill and knowledge execute the powers and trust reposed in me as a Member of the Northwest Territories Legislative Assembly. So help me God.
Members’ and Ministers’ oaths are sworn before the Commissioner with due ceremony and gravity, generally with close family present, in a televised proceeding in the Chamber.
There may be an opportunity to increase Members’ focus and public attention to matters of conduct by linking the oath to additional duties, standards and statutory requirements set out elsewhere. Newfoundland and Labrador’s Oath of Office is a good example, with specific links to the province’s Elections Act and the Assembly’s Code of Conduct:
I, (Member’s name) do swear (or affirm) that:
a) I am fully qualified to hold the office of Member for the District of _________to which I have been elected;
b) I have not knowingly contravened the Elections Act, 1991 respecting any matter in relation to my election;
c) I will faithfully, to the best of my ability, perform the duties and responsibilities of my office and will not allow any direct or indirect monetary or other personal or private interest to influence my conduct or affect my duties in public matters;
d) I hereby affirm, subscribe to and agree to follow the Code of Conduct of Members adopted by the House of Assembly, (in the case where the oath is taken, add “So help me God”).
Observations from Other Parliamentary Jurisdictions
Codes of conduct are well-established in a number of parliamentary jurisdictions. Elected leaders around the world have noted that their codes of conduct are extremely useful in dealing with constituents and local organizations by providing a formal standard to judge the actions of their elected politicians. According to some experts, Members are more cautious of their behaviour because they are subject to stricter scrutiny inside and outside the House.
As a result, codes of conduct can be used to build trust in government institutions. Or, their absence can undermine it. The overall purpose of codes of conduct for parliamentarians varies from country to country. They usually aim to promote ethical behaviour and prevent unethical behaviour, provide a set of ethical standards, increase public trust in and respect for the institution, as well as to establish rights and responsibilities for parliamentarians.
A commonly held view is that codes of conduct are better adopted through the Rules of the House or by formal motion rather than by statute. There is a strong argument that adoption by standing order or resolution enables the House to retain jurisdiction over its own affairs, rather than delegating them to the courts.
As well, there seems to be benefit in having a code that is relatively simple and easy to understand, readily accessible, and aspirational in nature. A Code of Conduct can include both aspirational provisions, what Members ought to do, and prescriptive provisions, what Members must do or not do. Many jurisdictions, including the Northwest Territories have opted to incorporate prescriptive provisions in the statute including fiduciary matters such as conflict of interest, gifts and favours, asset declaration, nepotism and outside activities. Many of these items are addressed directly in the Conflict of Interest Provisions of the Legislative Assembly and Executive Council Act. The effectiveness of a code of conduct for elected leaders depends on a range of factors, including effective consultation and discussion prior to the enactment of the code, the existence of an active constituent base pre-media, a functioning integrity system, effective protection for whistle blowers, an oversight mechanism, clear and appropriate sanctions and parliamentarians' commitment to the structure and process, regulation and enforcement.
Regulation and Enforcement
An effective conduct regime includes systems for enforcement and sanctions to deter potential offenders as well as to ensure the integrity of the House in the event of breaches. Three main models have emerged:
● internal regulation by the parliament;
● external regulation by a judicial body; and,
● creation of an independent commissioner who reports to a parliamentary committee.
Self-regulation by parliament typically entails the creation of a special ethics committee to deal with the reporting, investigation and sanctioning of Members alleged to have violated the rules. However, this model has met with considerable criticism as it turns legislators into investigators, judges and juries. In addition, if the intention is to ensure or restore public trust in politicians, a model that relies on politicians investigating themselves is unlikely to retain public confidence or credibility.
The second model involves the creation of a judicial or quasi-judicial body to oversee and enforce regulations on behalf of Members. The difficulty with this model is that breaches of the rules can become subject to criminal proceedings and, therefore, may interfere with rules relating to parliamentary privilege or immunity. In addition, Members may feel little sense of ownership in an external regime. If the intention is to build collective acceptance of its provisions, there may be more direct ways to build the regime into parliamentary culture.
The third model combines elements of the first two. This model involves the creation of an independent regulator appointed by and reporting to the legislature. The regulator is then responsible for investigating alleged breaches and advising Members on the application of the rules, but the imposition of penalties or sanctions is decided by a committee of the House. This model closely aligns with our own enforcement provisions in the Conflict of Interest section of the Legislative Assembly and Executive Council Act. One option may be to expand our Conflict of Interest Commissioner’s responsibilities to include oversight of the Code of Conduct. This is the arrangement in Newfoundland and Labrador under the Commissioner of Legislative Standards.
It is important to note that our existing territorial regime does very little to address regulation and enforcement of the aspirational provisions contained in our current Code of Conduct. Apart from the Code’s catch-all clause taken from the Legislative Assembly and Executive Council Act that Members “will perform the duties of office with integrity, objectivity and impartiality” and will arrange their “private affairs to maintain the trust and confidence of the public,” the code is largely non-binding and perceived as not having real teeth or meaningful enforceability. This is due, in part, from the difficulty enforcing some behaviour promoted in the code, in part, from the lack of a publicly-described procedure for registering complaints and taking appropriate action.
There is no Assembly committee tasked with handling complaints, and no ethics Commissioner. Our current system relies primarily on complaints to the Conflict of Interest Commissioner, whose authority is limited to provisions set out in the Legislative Assembly and Executive Council Act. This authority is weighed toward financial matters, contracts, and private interests. The act also establishes the Board of Management, chaired by the Speaker, to administer Members’ allowances, and set regulations and policies for all services to Members. The board ensures that its policies and regulations are followed, and exercises its authority to enforce them. The board is also the final arbiter of workplace harassment cases involving breaches of the Legislative Assembly’s policy and potential discipline of a Member. The workplace harassment policy is described in the Members’ Handbook, included in employee orientation, and administered by the Clerk. I will now pass this on to Mr. Thompson.