Site MenuA Code of Ethics or Code of Conduct for Political Parties as a Potential Tool to Strengthen Electoral Democracy in Canada
8. IMPLEMENTATION AND ENFORCEMENT OF A CODE
Translating a code into practice is not a simple, straightforward matter. Without an effective plan for implementation and enforcement, a code could be a symbolic document that might reassure the public that party politics were legal and ethical, but it would probably have little impact on the actual behaviour of political actors.
There are many practical issues to be considered in developing an effective code. How it is developed will affect the level of awareness, understanding and support by political parties, by actors on different levels in each party, by the media and by citizens at large.
A code dealing with political ethics could be more a cultural than a legal instrument. Evidence from other contexts suggests that endorsement, promotion, support and embodiment of exemplary behaviour by party leaders can be critical to making such a code more than simply words on paper.
The clarity and consistency of the aims of the code will affect the degree of understanding and acceptance as well as the capacity to measure its effectiveness.
The resources committed to communicating the aims and content of the code will affect awareness, understanding and acceptance among political actors on various levels, leading hopefully to voluntary compliance with its provisions.
The creation of reporting and appeal mechanisms to deal with complaints about illegal or unethical behaviour would seem to be essential to assuring the public that the code is working in a meaningful manner./
The code would have to provide for the establishment of "safe" channels of communication for lodging complaints and for protection against reprisals of individuals who "in good faith" make complaints about wrongdoing in a party.
While the strongest emphasis might be placed on the promotion of "right-doing," the code would also have to make provision for sanctions to deter wrongdoing. Deciding on the appropriate types of penalties for different kinds of violations of ethical rules presents a serious challenge. For some actions, reporting and loss of reputation might be sufficient, whereas for more serious violations, suspensions from party activities or fines might be more appropriate.
There is not a lot of practical experience to draw on to provide lessons on how to meet the implementation and enforcement challenge.
In Manitoba, responsibility for translating the code of conduct into practice is left to the individual parties. All registered parties accepted the obligation to educate their members about the code and to develop procedures for handling complaints. They are required to report to Elections Manitoba that they have fulfilled these commitments, but they are not required to describe their activities in this regard. In other words, the Manitoba code involves self-regulation. There is no requirement that parties report publicly on whether complaints about wrongdoing have been raised internally and how they were resolved. The underlying assumption of the Manitoba approach seems to be that the existence of the code and the acceptance of responsibility by registered political parties to promote its provisions will work effectively in combination with partisan competition, media attention and vigilant members of the attentive public to deter misdeeds.
In the case of the Quebec Liberal Party, its Code of Ethics and Conduct explicitly provides for the establishment of an Ethics Committee as well as for a complaint process and sanctions for misdeeds. The experience with these arrangements deserves more in-depth analysis than can be provided here.
Arising out of this discussion, there are a number of options for how a code could be implemented and enforced. Decisions on these matters will depend in part on the aims of the code and judgments on a number of other operational issues identified earlier in this paper. A number of options identified below could be combined.
Option 1 – Separate codes could be developed, adopted and enforced by each political party
There are arguments for and against this option, which will be listed briefly.
In terms of advantages, this option would respect the autonomy of parties. It would allow parties to customize a code for their own use, perhaps by including not only democratic rules and values but also distinctive public policy values that they espouse. With this approach, the parties would have a greater commitment to promoting awareness of the code throughout their ranks. The code could be used internally to promote cohesion and to deal with actions that violate party commitments. There would likely be less resistance to the concept of individual self-regulating codes than to a uniform code that applied to all parties.
A disadvantage of individual codes would be a potential lack of consistency among the parties in terms of upholding the rules and values of electoral democracy. Internal administration, including dealing with complaints of violations, would not inspire as much public confidence that the codes were being respected by the parties, especially if such matters were dealt with privately. Critics might dismiss voluntary, self-enforcing codes as symbolic window dressing. This concern might be somewhat alleviated if the parties agreed to establish a designated position within the party to receive complaints of unethical actions and provided safe channels for party members to raise their concerns.
Option 2 – A shared code could be developed with the support of Elections Canada
This is the process that was followed in Manitoba in the context of responding to a scandal and judicial inquiry, which created pressure on the parties to find agreement. Adoption of the Manitoba code is voluntary, and enforcement is left to the parties. There is no public record of a code violation being raised and resolved by a party. There are advantages and disadvantages to this option.
This option would have the advantage of a uniform set of values and norms of behaviour, which all participating parties would accept. Parties would have an incentive to monitor and report on violations by their competitors, creating pressure for parties to promote awareness and adherence to the code. Interpretation and enforcement of the code would remain with the parties and not involve oversight or sanctions imposed by an external body such as Elections Canada. Participation by Elections Canada in the formulation of the code might add to public confidence that the code would serve as a meaningful guide to responsible behaviour. Existence of the code might be useful as a source of persuasion and influence for the Chief Electoral Officer and/or the Commissioner of Canada Elections when seeking to deal with problematic behaviour that does not rise to the level of criminality for purposes of prosecution under the Canada Elections Act. There might be less political resistance to acceptance of the idea of a shared code that is uniform, voluntary and self-enforcing.
A disadvantage of this option is that it might not inspire public confidence because there is no provision for an external body to monitor and enforce its provisions. In the current intense partisan environment, it may be naive to expect political parties to discuss frankly in an all-party forum the legal and ethical issues arising from changing campaign practices. The risk of being challenged by political opponents might discourage parties from accepting a uniform code. Instead, negotiation among the parties might lead to a weak code that does not offer meaningful guidance in terms of legal and ethical behaviour.
Participation by Elections Canada in the development of the code, and the general visibility of the agency as a guardian of the integrity of the election process, might lead to complaints being filed with the agency. If the complaints did not involve violations of the Act, the agency could only refer them to the parties, not investigate or resolve them. Over time, publicity concerning the inability of Elections Canada to act on complaints might detract from its strong reputation as an impartial regulator of the election process.
Option 3 – Elections Canada could develop a model code that could be adopted by Parliament in a statute
Under the Canada Elections Act, Elections Canada has the statutory responsibility to report to Parliament on the administration of each election and has the authority to recommend amendments to the Act to improve the management and integrity of the election process. The Act is primarily a regulatory statute that, historically, has dealt with violations of its provisions through criminal proceedings in the courts. The amendments to the Act passed by Parliament in 2014 under the name of the Fair Elections Act provided some additional flexibility for the agency in ensuring compliance with its provisions, such as new authority to issue advance interpretations and opinions upon request from parties and candidates. However, there is still no provision in the Act for a general grant of delegated legislative authority or rule-making power that could be used by Elections Canada to adapt the rules in limited ways in response to changes in technologies and campaign practices that were not anticipated by existing statutory provisions.
As mentioned earlier, the passage in 2014 of the Fair Elections Act has resulted in the relocation of the Commissioner of Canada Elections to the Office of the Director of Public Prosecutions. This relocation leads to the question of whether Elections Canada or the Commissioner should oversee a code. If a code of conduct were limited to legal issues, the Office of the Commissioner might be the logical location to place the enforcement function. If a broader code of ethics were adopted, then Elections Canada might be the more appropriate location.
There are a number of potential advantages of a legislated code. A code could be crafted carefully to enshrine foundational principles and values of democratic life that all parties would want to embrace. A statutory code could flow from the regulatory authority granted to Elections Canada and/or the Commissioner of Canada Elections and could serve as a source of greater flexibility in applying the provisions of the Canada Elections Act. The code could be incorporated into the text of the Act or be referenced in the Act and attached as an addendum.
Incorporation of a code in a statute might offer greater assurance to the public that the provisions of the code will be respected. Provision could be made for mandatory reporting by political parties of violations, something that is not necessarily required under self-enforcing codes adopted by parties. Such a requirement could encourage parties to take code provisions more seriously in terms of promotion and compliance. A legislated code could also allow for members of the public to file complaints if they believe in good faith that illegal or unethical acts have taken place.
A process in which a model code was prepared by Elections Canada and presented to Parliament for adoption could involve a number of risks and disadvantages. Unless there was advance consultation and agreement among party representatives, such an initiative could be seen as Elections Canada pushing the limits of its mandate, especially by those critics who believe the agency should follow a minimalist, strictly legal interpretation of its role consisting of protection of the election process against the most obvious types of violations of the letter of the law.
Seeking all-party agreement within Parliament for a statutory code enforced by an external body might result in a highly vague, weak code. Another risk is that the code could become the subject of intense, irreconcilable disagreements among the political parties. If a governing party used its majority in Parliament to impose a contentious version of a code, the other parties might claim it lacked legitimacy and refuse to abide by its provisions. As the sponsor of the proposed code, Elections Canada could be dragged into partisan controversy. Coming in the wake of the parliamentary fights over key provisions of the Fair Elections Act affecting the role of Elections Canada, another round of controversy could damage the image of the agency as operating above the political fray and could lead to reduced public confidence in the impartiality of the agency.
With two bodies – Elections Canada and the Commissioner of Canada Elections – now responsible for overseeing the integrity of the election process, the public may be confused about where to direct any complaints about perceived wrongdoing. Given the longer history and greater visibility of Elections Canada compared to the Commissioner, the majority of public complaints would likely come in the first instance to Elections Canada. Under the previous arrangements, Elections Canada referred complaints to the Commissioner. With a new mechanism, there would need to be protocols for handling complaints, channels of communication between the two bodies and policies for communicating with the public.
Regardless of which body was given authority to oversee a statutory code, its decisions regarding interpretation and application of the code, especially one containing broad and vague ethical principles and values, would involve difficult judgments, often in complicated factual circumstances and with contending claims.
The above three options do not exhaust the possible ways to achieve adoption and implementation of a code. There are at least two variants on the options discussed above.
First, in debates over political ethics, it is usually assumed that a universal approach, in which all parties endorse a shared, uniform set of principles and values, is best. Another approach would be to require by law that every political party develop its own code, provide information to party members to make them aware of its provisions and designate an ethics officer to handle questions and concerns from members. Information on these ethics regimes inside each party would be filed with Elections Canada and published online. Rather than uniformity, there would be some amount of diversity in how the parties approached the ethical dimensions of their operations. Because information would be available online, other parties, the media and interested members of the public could compare how seriously each party took its legal and ethical responsibilities.
A second variant would be for Elections Canada to develop through consultation a statutory code and have that code include an opt-in provision. Once passed by Parliament, the code would be enforceable by Elections Canada, but political parties would be free to decide whether to accept the principles and values of a code that went beyond the legal requirements of various laws. In adhering publicly to the code, the parties would commit leaders, elected members, candidates, staff and volunteers to respect its provisions. Elections Canada would provide oversight, offering greater assurance that opted-in parties took the code seriously. An opt-in model could create a "race to the top" in which parties compete with one another in terms of their commitment to high standards in order to impress voters.