House of Commons - The Standards Systems in the House of Commons

The Standards Systems in the House of Commons - Committee on Standards Contents

Appendix 2: Parliamentary self-regulation: Australia (House of Commons), Canada (House of Commons), New Zealand and the USA

Introduction

This briefing note focuses on the five regulatory systems named above; other systems were referred to during the evidence session on 15 July 2014. The systems covered here all have one factor in common: MPs and Representatives do not have immunity for criminal matters and parliamentary privilege is restricted to matters directly relating to the House, not private proceedings.

This note is based on regulations adopted by the legislatures themselves, including Standing Orders (the source of most rules) and occasionally legal acts. Other regulations—including rules on party financing, electoral systems etc.—also have impact on parliamentary conduct, but they are less relevant to the Subcommittee's inquiry.

Parliamentary codes of conduct: shapes, forms, and purposes

Most codes of conduct have two elements: principles which underpin the desired behaviour and more detailed rules regulating specific aspects of behaviour. They also share a similar goal—to maintain public trust in the legislatures—and a minimum standard: all these parliaments have rules regarding conflict of interest (private v. public), arrangements for MPs to declare financial interests and for making those declarations available to the public. Other than that, the form, scope and detail of codes vary widely: some legislatures have not adopted comprehensive codes of conduct while others feature detailed codes supported by manuals and advisory opinions of the relevant Registrar, Commissioner, or Committee. Some legislatures choose to provide advice on more matters than others: the U.S. Senate, for example, provides advisory guidance on services for constituents.

Australia and New Zealand have not yet adopted comprehensive Codes of Conduct for all parliamentarians (though they do have Codes for Ministers which apply to MPs serving in government). Rules governing their lower Houses regulate behaviour in the chamber and establish Members' duty to declare pecuniary interests. Australia's regulations on conduct are contained within the Resolution adopted in October 1984 and last amended in October 2008. In New Zealand, Standing Orders 164-167 require members to register financial interests on an annual basis.

The categories of registrable interests in Australia and New Zealand are quite similar to those in the UK. In Australia, the Resolution obliges MPs to declare financial interests grouped into 14 categories, including real estate owned, directorships of companies, gifts, private travel, savings and liabilities. In New Zealand, here are 13 categories of registrable interests, ranging from controlling interests in companies to accepting gifts, travel and hospitality, and payments for activities. The list is exhaustive: If a category of interest is not listed in the Standing Orders, then a Member is not required to declare it, regardless of whether it could give rise to a conflict of interest.[226] Summaries of the registries are available online

In Australia, MPs and their spouses and dependent children have to register pecuniary interests; in New Zealand, this only applies to MPs.

While the New Zealand code of conduct is restricted to pecuniary matters, there have been repeated calls for a much more comprehensive code to be adopted. On 12 June 2007, four minor Parties - the Greens, Maori Party, United Future and the ACT Party -announced they were signing a voluntary Code of Conduct and invited other Members to follow suit. The intention was that if enough Members signed, it could be adopted by the Parliament and included in the Standing Orders.

The voluntary Code includes the following principles:

· Working for the public good

· Showing respect for Parliament

· Not accepting inducements

· Not advancing private interests

· Avoiding conflict of interest

· Ensuring proper use of public resources.[227]

The voluntary Code did not gain support of major parties in Parliament. A similar fate befell the consultation draft Members of Parliament (Code of Ethical Conduct) Bill introduced in 2012 by Labour MP Ross Robertson.

The Canadian House of Commons adopted the Conflict of Interest Code for Members of the House of Commons by Standing Orders on 29 April 2004, further amending it in June 2007, June 2008 and June 2009. The Code states that its main purposes include:

· to 'maintain and enhance public confidence and trust in the integrity of Members as well as the respect and confidence that society places in the House of Commons as an institution';

· to 'demonstrate to the public that Members are held to standards that place the public interest ahead of their private interests and to provide a transparent system by which the public may judge this to be the case'.[228]

The Code declares that service in Parliament is a 'trust'; accordingly, the main principles on which the Code is based include honesty, integrity, and adherence to standards higher than merely staying within the law. The Code also exhorts MPs to avoid the conflict between public and private interest and, should such conflict arise, to resolve it 'in a way that protects the public interest'.[229]

The Code includes rules on avoiding conflict of interest and registering private interests, a prohibition on accepting gifts (except when offered as a normal expression of 'courtesy and protocol'), and rules on declaring sponsored travel to be either avoided or, if arising from a Member's duties, to be disclosed. There is, however, a minimum threshold of value for assets and liabilities which needs to be exceeded for the interest to be declared: $10,000. Declaration of private interests applies to the Members, their spouses, and dependent children.[230]

In the United States, both the House of Representatives and the Senate have formal codes of conduct. They are shaped by what the House Ethics Manual states is a guiding principle of government: "public office is a public trust". The Code of Ethics for Government Service also applies to Members of both Houses; it contains the following main principles:

· Adhere to the highest moral principles;

· Give a full day's labor for a full day's pay;

· Never discriminate unfairly by dispensing special favors;

· Never accept favors or benefits that might be construed as influencing the performance of governmental duties;

· Make no private promises binding on the duties of office;

· Engage in no business with the Government inconsistent with the performance of governmental duties;

· Never use information received confidentially in the performance of governmental duties for making private profit; and

· Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and never be a party to their evasion.[231]

In the House, the main document is the Code of Official Conduct, adopted as the House's Rule XXIII. It applies not only to Members of the House, but also to its officers, delegates, Resident Commissioners and employees.[232] Its provisions are again quite similar to those adopted by the UK Parliament: they pertain to receiving and declaring gifts, maintenance of strict separation between official and campaign funds; sponsored travel; etc. The Code requires that Members of the House of Representatives and some higher-paid employees declare a number of interests, including any extra-parliamentary income (even if relayed to charities), real estate possessed, assets and liabilities, trusts and any arrangements for future employment. Spouses and dependent children of Representatives must also declare their pecuniary interests.[233]

The Senate rules, contained within the Senate Code of Official Conduct, are similar to those adopted by the House of Representatives when it comes to scope. Categories in which rules apply include gifts, privately sponsored travel, campaigns, conflicts of interest, and financial disclosure. They apply, similarly, to Senators and senior officials and employees. However, the Senate rules are based to a greater degree on prohibitions rather than declarations: for example, it the Ethics Committee restricts Senators' participation in commercial ventures to sitting on non-fiduciary, advisory bodies rather than simply expect a declaration of an interest.[234]

Interestingly, the Senate Ethics Committee also takes a stand on constituency services. In an advisory opinion, the Senate's Ethics Committee states:

235

It adds:

236

'Permissible interventions' with federal agencies include requests for information or a status report, urging of prompt consideration, arranging for interviews or appointments, and calls for reconsideration of administrative responses which the Member thinks are weakly supported by statutes and applicable considerations. There are two types of 'prohibited interventions': any intervention in an executive agency's enforcement, investigative, or quasi-judicial proceedings; and ex-parte communications, i.e. communications with an agency employee involved in decision-making with the view to influence said decision, and without proper notice to all parties. The Committee also advises that Senators should refrain from intervening in pending court actions (unless they apply to the court to intervene as amicus curiae, or friend of the court).[237]

Table 1: Codes of Conduct

	Australia	Canada	New Zealand	US House of Representatives	US Senate
Code of Conduct?	No, but there have been attempts to introduce it	Yes	No, but a voluntary Code has been introduced by some parties	Yes	Yes
Register of Members' Interests?	Yes	Yes	Yes	Yes	Yes
Adopted by Standing Orders or by law?	Standing Orders	Standing Orders	Standing Orders	Rule XXIII (equivalent of Standing Orders)	Rules 34 through 43 of the Standing Rules of the Senate (equivalent of Standing Orders)
What main principles are they based on?	None explicitly named	Honesty, integrity, and adherence to standards higher than the letter of the law	None explicitly named	'public service is public trust'	'public service is public trust'
What types of rules do they contain?	- rules re behaviour in the Chamber -regulation of conflict of interest	Regulates mostly pecuniary interests and conflict of interest issues: - income from sources other than the House; - travel; - gifts; - private interests; - release of confidential information	- rules re behaviour in the Chamber -regulation of conflict of interest	Rules mostly pertain to conflict of interest: -receiving gifts; - sponsored travel; - separation between electoral and office-related funds, etc.	Rules mostly pertain to conflict of interest: receiving gifts; - sponsored travel; - separation between electoral and office-related funds; - restrictions on participation in commercial interests. An interesting addition is inclusion of guidance on constituency service.

Who oversees and implements the system? External/internal input and the role of lay members

Most self-regulation arrangements reviewed rely on what the OSCE's Office for Democratic Institutions and Human Rights refers to as a 'hybrid' system:[238] a combination of intra-parliamentary (an oversight committee, for example) and external scrutiny (commissioners, lay members in oversight institutions), although the balance between the two differs from parliament to parliament. As a rule, external bodies act as investigators in cases of alleged breaches, while internal committees perform the role of adjudicators.

There are also systems—such as Australia and the U.S. Senate—where external input into scrutiny is minimal or non-existent. In Australia, the relevant oversight committee is the Committee of Privileges and Members' Interests, assisted by the Registrar of Members' Interests (currently the Deputy Clerk of the House). The Committee Chairman is required to table the Register of Members' Interests in Parliament as soon as feasible after the start of Parliament and to make it available for inspection (scans of original documents have recently been put online).[239] The Committee can also consider complaints regarding Members' interests. The Committee reports to the House when it sees fit, but is obliged to report on its operations in connection with the registration and declaration of Members' interests during the year as soon as possible after 31 December each year.[240] There have been no reports this Parliament. There is also no lay input into the scrutiny mechanisms.

The Committee of Privileges and Members' Interests has 11 members and an overall Government majority: the Leader of the House or his or her nominee, the Deputy Leader of the Opposition or his or her nominee, five government and four non-government Members. When the Opposition is composed of two parties, the non-government Members need to include at least one member of the smaller opposition party.[241]

In the U.S. Senate, the Code is administered and enforced by the Select Committee on Ethics, which is non-partisan and has three members from each party. The Committee is authorised to 'receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto.'[242] The Committee can also investigate unauthorized disclosure of intelligence information by a Member and to investigate complaints regarding use of franking (mail) privileges, and to recommend additional rules to the Senate if it considers these necessary to maintenance of good standards. It also reports violations of the law (which include providing false information to the Committee) to state or federal authorities (this is done by a majority vote of the full Committee). It can also interpret the rules and provide advice to Members, officers and employees.[243] There is, however, no lay input.

The New Zealand system is somewhat similar to the Australian one, though it does feature a greater degree of external input. The Register of Members' Pecuniary Interests is prepared by the Registrar and complaints can be referred by the Speaker to the Privileges Committee. The Committee does not have any lay members. The Registrar is the Deputy Clerk of Parliament; however, the position is delegated to an external appointee. This allows the Clerk to advise the Privileges Committee on matters related to the Register without also advising members who had been referred to the Committee.[244] The Registrar is responsible for providing advice to members and compiling a summary of returns, which is published online and in booklet form and presented to the House. Full text of the returns is not made public.[245]

The most significant form of external input into the system is the role of the Office of the Auditor-General (OAG), who is an Officer of Parliament. Copies of the returns are provided to the OAG for review and inquiry. The review is not a detailed audit; rather, it involves checking whether all members have submitted a declaration and whether it covers the required elements. However, the OAG can also launch inquiries into Members' declarations following their own review, concerns raised in the media, a complaint from a member of the public or from another MP. The results of the inquiry are reported to the House.[246]

The voluntary Code of Conduct adopted in 2007 by four minor parties was to be policed by the parties themselves: if a Member breached the Code, they would be censured by their own party.[247]

The Canadian House of Commons features arrangements somewhat similar to those in the UK. The Office of the Conflict of Interest and Ethics Commissioner is 'responsible for helping appointed and elected officials prevent and avoid conflicts between their public duties and private interests'; the Commissioner's responsibilities relate to administering the Conflict of Interest Code for Members of the House of Commons. Mary Dawson, the first Commissioner, took office on 7 July 2007 (similar offices were, however, in existence before).

The Commissioner's key responsibilities include:

· Providing confidential advice to Members of Parliament about how to comply with the Code: the Office provides guidelines and advisory opinions, can organise information sessions if requested and maintains regular contacts with individuals affected by the Code;

· Reviewing MPs' confidential reports on activities, assets and liabilities;

· Making information available: while the details of Members' disclosures remain confidential, the Office prepares and makes publicly available summaries of the information, which include general information on Members' assets, liabilities and activities;

· Investigating possible contraventions: the Commissioner can conduct investigations at the request of another Member, at the direction of the House of Commons, or pursuant to her own initiative; and

· Reporting to Parliament: the Commissioner submits an annual report on the administration of the Code. She is also required to prepare a list of sponsored travel by Members of the House of Commons and submit it for tabling in the House of Commons.[248]

The Commissioner is an officer of Parliament and enjoys the privileges and immunities of the House of Commons and its Members when carrying out her duties and functions. He or she is appointed by the Governor in Council (in consultation with all recognized parliamentary party leaders) for a seven-year renewable term. The Office is a separate employer and has its own Code of Values and Standards of Conduct for its employees.[249]

The Standing Procedure and House Affairs Committee oversees the Office of the Commissioner; however, it only considers the annual reports of the Office, not results of investigation into particular cases (the procedure is detailed below). The Committee does not have any lay members and the majority of members are from the government caucus (currently six out of ten are Conservative).[250]

The U.S. self-regulation system for the House of Representatives has two pillars: the Office of Congressional Ethics (OCE) and the House Committee on Ethics. The OCE, established in 2008, is "an independent, non-partisan entity charged with reviewing allegations of misconduct against Members, officers, and staff of the United States House of Representatives and, when appropriate, referring matters to the House Committee on Ethics". Its members are private citizens who cannot be members of Congress or work for the federal government. It is governed by a Board made up of eight lay members (six voting members and two alternates), usually lawyers or other professionals with expertise in ethical governance and investigations.[251] The OCE Board members are appointed by the Speaker of the House and the Minority Leader: each appoints three voting members and one alternate. The Speaker and the Minority Leader need to be in agreement as to their respective appointments.

The Committee on Ethics is non-partisan, with five Democratic and five Republican members. It interprets the House Code of Conduct, provides advice and training, and conducts inquiries into alleged breaches of the Code.

The creation of the OCE followed what the New York Times called '[t]he dismal record of the House Ethics Committee trying to investigate and judge its own colleagues'.[252] The immediate impulse was the Abramoff lobbying scandal, which saw accusations of bribery and improper influence peddling in the House of Representatives. Since its creation, the OCE has earned plaudits from some and criticism from others, who alleged arrogance and lack of understanding of the role of elected representatives.[253]

The degree of external input into parliamentary regulation is also reflected in the range of those seen as entitled to bring complaints against MPs. In the Canadian system, members of the public cannot bring complaints against an MP; in New Zealand and the United States they are entitled to do so. In the House of Representatives, however, a complaint from a fellow Representative can get fast-tracked to the Committee, omitting the OCE stage.[254]

There is little direct involvement of political parties in regulating standards. The exception is the U.S. Congress, where the Ethic Committees of both Houses can make a recommendation to a Member's party conference (the equivalent of a parliamentary party) regarding their seniority or positions of responsibility on committees. The party could demote a Member in response to ethical concerns; on occasion, they do it even without an Ethics Committee recommendation.[255]

Table 2: How do self-regulation systems work in other Parliaments?

Australia Canada New Zealand US House of Representatives US Senate

Parliamentary element Committee of Privileges and Members' Interests and the Registrar of Members' Interests Office of the Conflict of Interest and Ethics Commissioner, with the Standing Procedure and House Affairs Committee considering the Office's annual reports. Privileges Committee and the Auditor General. Committee on Ethics, non-partisan, with five Democratic and five Republican members. Select Committee for Ethics, non-partisan, with three members from each party.

Lay input No Conflict of Interest and Ethics Commissioner. Complaints and allegations can only be raised by MPs, not the public. Registrar of Members' Interests, who is an external appointee; Office of the Auditor General; the public can lodge complaints. Office of Congressional Ethics, composed of private citizens; the public can file complaints with the OCE. No, though members of the public can file complaints.

Direct involvement of political parties? No No No. However, the Voluntary Code adopted by minor parties pointed to parties as enforcers of the Code. No Yes, in executing sanctions.

How the system works, part 1: advice and training

Parliamentary systems analysed here comprise a variety of advice and educational provisions, ranging from minimalistic—where Members only receive advice from the Registrar on registering their financial interests—to comprehensive arrangements for training for new members supported by larger and more formalised advisory services.

Again, Australia and New Zealand are on the minimalist side of the spectrum, with no educational provisions other than the respective Registrars' prerogative to provide advice to Members. In Canada, the situation is similar, although the Conflict of Interest and Ethics Commissioner does have the prerogative to organise information sessions on the Code and to maintain regular contact with the individuals affected by it (there is no information on whether this actually happens and what the uptake might be).[256] She also regularly publishes advisory opinions and has prepared backgrounders on the Code and compliance processes.

The U.S. House of Representatives and the Senate have the most comprehensive provisions for education and provision of advice. The House Committee on Ethics publishes guidance on ethical rules, including a revised version of the House Ethics Manual. It also provides advice to Members, usually done through the Committee's Office of Advice and Education over the phone and by the Committee itself in writing. Written opinions issued by the Committee are binding on the Committee, i.e. a Member cannot be censured for following advice issued to them by the Committee. The Committee therefore advises Members to seek written opinions in more complicated cases.[257]

The Ethics Committee also runs mandatory ethics courses for new and returning House staff. Each new employee has to complete ethics training within 60 days of starting work. There are also refresher/CPD provisions for existing staff: all are required to complete one ethics course, live or online, per year. Senior House Staff are additionally required to complete an extra hour of training per Congress (i.e. per two years).[258]

The Senate's Select Committee on Ethics has a mandate to develop programmes and materials 'designed to educate Members, officers, and employees' about the rule of law and applicable standards. It can also interpret the rules and provide advice to Members, officers and employees, which it does through publication of regular guidelines and advice for Members on specific issues. The Committee also runs a training programme which all new Senators and employees are required to complete within 60 days of commencing their service or employment. Senators are required to verify that all new staff have completed training.[259]

While Senators are required to complete ethics training pursuant to the Honest Leadership and Open Government Act (2007),[260] there is no such requirement for Members of the lower chamber. In July 2014, Representatives Cicilline (Dem) and Rigell (Rep) introduced a bipartisan Ensuring Trust and Honorability in House Services (ETHICS) Act, which, if passed, would make ethics training obligatory for members of the House of Representatives.[261]

Newcomers to U.S. Congress can also attend The Bipartisan Program for Newly Elected Members of Congress, a four-day, mostly off-the-record series of seminars aimed at preparing new legislators for their duties and run by the Kennedy School of Government at Harvard (an institution which set out to provide education for public management as a profession). There are no specific sessions on ethics, with the programme concentrated on substantive issues of policy such as health, education and the economy. However, the schedule does feature sessions led by more experienced members of Congress who pass on lessons learned, as well as a session on 'practical civility' and on communicating with constituents.[262]

Table 3: Education and CPD

Australia Canada New Zealand US House of Representatives US Senate

Advice to MPs Provided by Deputy Clerk, who maintains the registry of interests. Provided by the Commissioner, who can also organise seminars on ethics. Backgrounders and advisory opinions are published. Provided by the Registrar of Members' interests (external appointment). Provided by the Ethics Committee unofficially by phone or officially in writing. Written advice is binding on the Committee. Extensive manuals and backgrounders published. Provided by the Ethics Committee. Extensive manuals and backgrounders published.

Induction No No No Obligatory for Representatives and House staff; currently considering a bipartisan bill to make it obligatory for Representatives. Obligatory for all Senators and staff

CPD No No No Staff need to complete a refresher course every year, with senior staff receiving an extra hour of training per Congress. No provisions specified

How the system works, part 2: investigating alleged breaches

Mechanisms of investigation vary according to the nature of the system: in pure self-regulatory systems with no external input investigation and adjudication functions are usually carried out by parliamentary Committees, with the whole House needed to confirm sanctions. In hybrid systems, external bodies such as Commissioners or the OCE conduct investigations and a parliamentary committee acts as adjudicator.

In Australia, complaints regarding conflict of interests and financial declarations are investigated by the Committee of Privileges and Members' Interests, which reports its findings to the House. It is unclear whether the public can file complaints with the Committee.[263] In New Zealand, the Office of the Auditor General has the mandate to review declarations made by members (mandatory) or to conduct inquiries into potential irregularities (a discretionary function). The OAG can undertake an investigation either following a complaint (members of the public are entitled to lodge complaints) or on its own initiative.[264] The OAG reports findings to the House of Representatives.

There is no specific timeline for conducting inquiries in either country.

In Canada, the Conflict of Interest and Ethics Commissioner is responsible for conducting investigations following a complaint from a Member of the House of Commons or from her own initiative. Upon receipt of the complaint, the Commissioner is required to forward it to the Member who is the subject of the complaint and to afford the Member 30 days to respond. Once the Member has completed his or her response, the Commissioner has 15 working days to conduct a preliminary review of the request and the response and to notify both Members in writing of the Commissioner's decision as to whether an inquiry is warranted. Inquiries must be conducted in private.[265]

There is no set timeline for inquiries. However, a quick look at the inquiries conducted since 2008 reveals that three out of six inquiries took over a year (20 months for the Paradis inquiry, February 2012-December 2013) and three lasted about 6 months (5 months for the Cheques Report, October 2009-April 2010).[266]

The Commissioner's reports are provided to the Speaker, who tables them in the House. The Member concerned has a right to make a statement (lasting up to 20 minutes) in the House within 10 sitting days of the tabling of the report. The House has to concur in the report by motion (this includes endorsement of any sanctions suggested by the Commissioner), but if no motion to concur is taken within 30 sitting days, it is deemed to have passed such a motion. The House of Commons is authorised to refer a report back to the Commissioner for further consideration, at any point before the report has been considered.[267]

The House has so far used this prerogative in one case. The Commissioner explains in a 2008 report:

268

The Commissioner changed her conclusions following the amendment and the referral: where she had previously found that a member had breached his obligations under the Code of Conduct, she revised the conclusion to exonerate him.

The investigation procedure in the U.S. House of Representatives usually comprises two stages: an OCE review and the Ethics Committee stage. The OCE is usually the first port of call for allegations of misconduct: it receives and conducts the initial investigation of allegations of code breaches. The complaints can come from a number of sources, including the general public. The OCE can either recommend that the complaint should not be investigated or pass it on to the Committee.[269] As explained in the previous section, however, the Committee on Ethics can also launch an investigation without a recommendation from the OCE, and that a complaint either submitted or certified by a member of the House of Representatives can be relayed straight to the Committee.

The OCE review has two stages: a preliminary review, and a second-phase review; the OCE Board must authorize each stage. The preliminary review is limited to 30 days, during which the OCE staff investigates whether a violation may have occurred. A second-phase review is initially limited to 45 days, with the option for the Board to extend it by an additional 14 days. At any point during the preliminary review, four members of the Board may vote to terminate a review.[270]

At the end of the second-phase review, the Board considers a staff report presenting all the evidence and determines if there is a "substantial reason to believe" that the alleged violation may have occurred. According to the OCE's Rules, a substantial reason to believe exists when "there is such relevant evidence a reasonable mind might accept as adequate to support a conclusion." If four members agree, the Board may adopt a report that refers the matter to the Committee on Ethics for further review or, alternatively, recommends that the Committee dismiss the matter. In the case of a tied vote, the Board may send the final report to the Committee with the matter unresolved. The Board may also decide that information about the allegations should be referred to another government commission, office, or authority for appropriate action.[271]

The OCE review can last overall up to 90 days.

Except in very limited circumstances, the Committee on Ethics must eventually release the OCE's report and findings. Public release is required within 45 days, unless the Committee votes to extend this period by an additional 45 days. The release of the report and findings can also be delayed if the Committee decides to create an investigative subcommittee to investigate the matter. In that case, the OCE report must still be released within a year. If the Board recommends dismissal and the Committee also votes to dismiss the matter, the report does not have to be made public. Release of an OCE report may also be delayed when a law enforcement authority that is taking action in the matter requests that the Committee defer the public release.[272]

When the complaint reaches the Ethics Committee, the Chairman and Ranking Minority Member of the Committee make an initial determination as to whether a complaint is in compliance with House and Committee rules. If it is determined that the complaint submitted meets the requirements for what constitutes a complaint, Committee rules provide for notification of that determination to the respondent, and for an opportunity to respond. The Chairman and Ranking Minority Member may establish an investigative subcommittee or make recommendations to the full Committee as to the disposition of the complaint. The rules permit the Chairman and Ranking Minority Member to jointly gather additional information concerning alleged conduct which is the basis for a complaint until the Committee has established an investigative subcommittee or placed the issue of establishing an investigative subcommittee on the agenda of Committee meeting. The length of the review is not specified.[273]

In the Senate, allegations against Senators are investigated by the Select Committee for Ethics. After receiving a complaint, the Committee first conducts a preliminary review to determine whether there is sufficient evidence to conclude that a violation which is within the Committee's remit has indeed occurred. The next stage is an adjudicatory review, which determines whether the Member or an officer has indeed broken to Code of Conduct. If it established that a violation did occur, it can recommend (by resolution or majority vote) disciplinary action to the Senate.[274]

In the majority of systems, there is no formal appeals procedure. However, the Commissioner/Committee investigations are usually concluded by a report being tabled in the House in question and followed by a vote (or, in the Canadian case, tacit acceptance) on recommended sanctions. Thus the House does perform some of the functions that would be expected of an appeals tribunal: it can endorse or reject suggested conclusions and sanctions, or, in the Canadian case, refer the matter at hand to the Commissioner for further consideration.

The only system with an explicitly formulated procedure for appeals is the United States Senate. Within 30 days of the Committee report and recommendations imposing reprimand or restitution being submitted to the Senate, the party under investigation (but not the complainant if the complaint is rejected) can appeal to the Senate in writing; the notice of appeal is printed in the Congressional Record and the Senate Journal. If the motion for appeal is accepted (there is no debate on it), the appeal will be decided on the basis of the Select Committee report and the maximum debate time for it is 10 hours, divided equally between those favouring and opposing the appeal.[275]

The levels of investigative activity vary for different Committees and other authorised bodies. Australia's Committee of Privileges and Member's Interests spends far more time on matters of parliamentary privilege than on those of conflict of interest and ethics: in 2008-2012, it looked into two complaints related to conflict of interest and dismissed both of them.[276] In New Zealand, the OAG has conducted inquiries into more general aspects of parliamentary entitlements, but on into individual MPs. In 2011, the OAG released a report into the use of parliamentary travel expenses, based on alleged wrongdoing of one MP. The report identified shortcomings of the travel expenses system, which were subsequently rectified by the government.[277] In Canada, the Commissioner has conducted full inquiries for 6 complaints concerning MPs since 2008; none of them were concluded with disciplinary sanctions. The Commissioner initiates about 40 inquiries per year, most of which pertain to ministers rather than MPs. [278]

The level of activity seems greater in the US Congress. In 2010-2013, the Senate's Select Committee on Ethics considered 234 alleged violations. A large majority were dismissed either because they did not fall within the Committee's remit or because no substantiation was provided; only 23 were proceeded to a preliminary review. Out of those, only two resulted in public or private letters of admonition being issued; no sanctions were recommended.[279]

In 2011-2013 (112th Congress), the House of Representatives Ethics Committee investigated 96 matters and empanelled 2 investigative subcommittees for two separate matters. 27 matters were addressed publicly (most of these were referrals from the OCE) and there were 14 reports to the House. In one case, the committee found that an impermissible gift was received, but found mitigating circumstances and decided to apply no sanctions. It issued four Letters of Reproval (two for Members and two for staff) and twice ordered fines to be paid.[280]

While the OCE cannot recommend sanctions on its own, the publication of its reports can still exert pressure on Representatives, even if the Committee on Ethics does not recommend a sanction. For example, in February 2010 Democrat Charles B. Rangel was made to give up his post as chairman of the House Ways and Means Committee due to the pressure from his party; this was despite the Ethics Committee only issuing a reprimand following Mr Rangel's acceptance of a free trip to the Caribbean.[281]

Table 4: Investigation and disciplinary process

Australia Canada New Zealand US House of Representatives US Senate

Who can file complaints Unclear. Standing orders point to the House and the Speaker when it comes to matters of privilege, but do not specify complainants in issues of pecuniary registers. Members of the House of Commons. However, since the Commissioner has the power to initiated investigations, information from the public could for a basis for that. Anyone, including members of the public. No guarantee, however, that investigations will be launched. Anyone, including members of the public (only through the OCE). No guarantee, however, that investigations will be launched. Anyone, including members of the public. No guarantee, however, that investigations will be launched.

Who investigates Committee on Privileges and Members' Interests Conflict of Interest and Ethics Commissioner Office of the Auditor General Office of Congressional Ethic (stage 1) and the Ethics Committee (stage 2). The Ethics Committee can also launch an investigation independently and investigates if a complaint is made or certified by a member of the House. Ethics Committee

Who adjudicates Committee on Privileges and Interests recommends sanctions to the House The entire House The entire House Ethics Committee can undertake 'administrative' action and recommend disciplinary action to the House of Representatives. Ethics Committee suggests sanctions to the whole Senate, which needs to approve them.

Appeals procedure None No formal procedure, but the Member can address the House when the report is being considered None None A Senator can appeal to the whole Senate; no procedure for complainants

How long do investigations take? Unspecified Unspecified, but investigations so far took between 5 and 20 months Unspecified OCE review lasts up to 90 days; unspecified for Committee stage Unspecified

What are the sanctions/disciplinary actions?

In most systems, sanctions are recommended by the respective parliamentary Committee and approved—or modified—by the respective House as a whole. The severity and range of possible sanctions differs from parliament to parliament: they range from an 'administrative' sanction (usually a letter from a Committee), to censure by the House, to fines and, in very rare cases, imprisonment (this prerogative has not been recently used).

In Australia a Member who fails to declare an interest or makes a false declaration can be found 'guilty of a serious contempt of the House of Representatives and shall be dealt with by the House accordingly.' The Parliamentary Privileges Act 1987 states that the House can impose the following penalties on those found in contempt:

· imprisonment of up to 6 months; or

· fine: up to AUD 5,000 for individuals and AUD 25,000 for corporations.

The House, however, has no power to expel members.[282]

In New Zealand, the arrangements are similar: Members making false declarations are guilty of the contempt of the House. The House (as a whole) can apply the following sanctions:

· imprisonment (not longer than the session in which the sanction was applied);

· fine (although there is some argument as to whether the House has this power);

· censure;

· suspension;

· expulsion: whether Parliament can expel members is seen as unclear in New Zealand. The Standing Orders Committee has recommended that any power to expel a member be explicitly abolished;

· exclusion from the precincts; and

· apology to the House.[283]

The Canadian Conflict of Interest Code mentions that the Commissioner may recommend sanctions with regard to a Member found to be in breach of the Code, but it does not specify what these sanctions might be (and the Commissioner has not recommended any sanctions yet). Their imposition is up to the House of Commons as a whole. In cases where the Commissioner finds that a Member breached the Code, but "took all reasonable measures to prevent the non-compliance, or that the non-compliance was trivial or occurred through inadvertence or an error of judgment made in good faith", the Commissioner can so state in the report and recommend that no sanction be imposed.[284]

The Canadian House of Commons also has a role in sanctioning on members who have been found guilty of offences regulated by criminal law and related to bribery, corruption, influence-peddling and breach of trust. If a person is found guilty of these offences and sentenced to more than two years in jail, they become incapable of being elected, sitting and voting in the House. However, the House still has the right to regulate its own premises and disciplining of Members; therefore, even if a Member has been convicted of an offense, they cannot lose their seat in the House unless the House votes to suspend or expel them.[285]

The U.S. House of Representatives has the following sanctions at its disposal:

· Censure;

· Reprimand;

· Condemnation;

· Reduction of seniority (which in turn has influence on appointments to committees);

· Fine;

· Removal or suspension from Committee functions (usually decided and executed by party caucuses);

· 'Other sanction deemed appropriate'; and

· Expulsion, with the concurrence of two-thirds of Representatives.[286]

If there is suspicion of criminal activity, the matter in question can also be referred for criminal investigation if two-thirds of the House concur.[287]

A sanction of the whole House follows the recommendation of the Committee on Ethics. The Committee itself has the power to impose administrative sanctions such as issuing Letters of Reproval [sic] without recommending further action by the full House.[288]

The Committee can also recommend that sanctions be imposed by the House against an officer or employee of the House. Such sanctions could include:

· Dismissal from employment;

· Reprimand;

· Fine; and

· Other appropriate sanction.[289]

In the U.S. Senate, the Select Committee for Ethics can issue a report, resolution, or recommendation related to the investigation. It can also issue a letter of admonition if it determines that a violation was inadvertent, technical or insubstantial ('of a de minimis nature'); this letter is usually private if issued at the stage of the preliminary review and public if issued after an adjudication review. The letters are not considered 'discipline'.[290]

In case of a Senator, disciplinary action can include:

· expulsion (if two-thirds of members support it);

· censure;

· payment of restitution;

· recommendation to a Member's party conference (i.e. all party members int he chamber) regarding the Member's seniority or positions of responsibility; or

· a combination of the above.[291]

Possible disciplinary actions toward employees are the same as in the House.

Table 5: Sanctions

Australia Canada New Zealand US House of Representatives US Senate

Sanctions for Members False declarations can put a Member in contempt of the House. Sanctions include:
- imprisonment for up to 6 months; OR
a fine: up to AUD 5,000 for individuals and AUD 25,000 for corporations.

The House has no power to expel Members.
Unspecified False declarations can put a Member in contempt of the House. Sanctions include:
- apology;
- censure;
- fine;
- suspension;
- exclusion from the premises;
- expulsion;
- imprisonment.
Administrative sanction: Letter of Reproval.

Disciplinary measures:
- Censure;
- Reprimand;
- Condemnation;
- Reduction of seniority;
- Fine;
'Other sanction deemed appropriate'; and
- Expulsion, with the concurrence of two-thirds of the House.
Administrative sanction: Letter of Admonition.

Disciplinary measures:
- Censure;
- Reprimand;
- Condemnation;
- Reduction of seniority;
- Fine;
'Other sanction deemed appropriate'; and
- Expulsion, with the concurrence of two-thirds of the Senate.

Sanctions for employees Not specified Not specified Not specified - Dismissal;
- Reprimand;
- Fine; and
- 'Other appropriate sanction'.
- Dismissal;
- Reprimand;
- Fine; and
- 'Other appropriate sanction'.

Recommended by Committee of Privileges and Members' Interests Conflict of Interest and Ethics Commissioner Privileges Committee Ethics Committee Ethics Committee

Imposed by Whole House Whole House Whole House Ethics Committee for administrative sanctions; whole House for disciplinary measures; party caucuses for Committee positions. Ethics Committee for administrative sanctions; whole Senate for disciplinary measures; party conferences for Committee positions and seniority.