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The Legislative Assembly |
The Manitoba Law Reform Commission has conducted a comprehensive review of Manitoba's Legislative Assembly and Executive Council Conflict of Interest Act. Conflict of interest issues, and ethics in the public sector in general, have inspired vigorous debate and significant legislative reform in Canadian and other jurisdictions since the Act was last amended in 1989, and the Commission has drawn on the experiences of other jurisdictions to recommend significant reform to Manitoba's legislative regime.
In all, the Commission has made 50 recommendations, which it believes will, if implemented, provide Manitobans with a system of conflict of interest rules that will greatly enhance public confidence in elected provincial representatives without compromising the privacy interests of those representatives.
Conflicts of interest legislation is intended to prevent elected representatives from participating in decisions or activities in which their private interests may conflict with their public duty. Although such situations are less serious breaches of the public trust than criminal offences such as bribery and fraud, they are nevertheless increasingly less and less tolerated by North American society, and legislative proscription of them has become more and more widespread over the past few decades. Every province and territory now has legislation specifically designed to prevent conflicts of interest.
Manitoba's current Act was introduced in 1983, and amended in 1988. The Act has four distinct parts. The first part requires Members of the Legislative Assembly (referred to in the Report simply as 'members') to withdraw from meetings where matters arise in which they have a pecuniary interest. The second part requires members to disclose publicly, on an ongoing basis, certain information about their assets and interests. The third part, which applies as well to senior public servants, prohibits misuse of confidential information, abuse of influence, and certain kinds of contracts between former Ministers and the Province. Finally, the fourth part of the Act makes it possible for any voter to go to court to enforce the provisions of the Act.
Since Manitoba's legislation was last amended, sweeping changes have been made to the conflict of interest legislation in virtually every other jurisdiction in Canada. Such legislation has been studied and reported on by parliamentary committees, distinguished panels, conflict of interest commissioners, and former members of the judiciary. The Commission reviewed and considered many of these reports and legislative changes, along with similar developments in the United Kingdom, Australia, and the United States.
The conflict of interest regimes in Canada's provinces and territories (other than Manitoba) share a number of common features, some of which are also common to Manitoba's Act and some of which are not. The two most significant differences between Manitoba's legislation and that of the other provinces and territories are: (a) its lack of provision for a designated individual with responsibility for administering the Act; and (b) its reliance on the courts, rather than the Legislative Assembly, for enforcement.
The federal government, along with the United Kingdom Parliament, has opted for conflict of interest guidelines rather than legislation. This is also generally true in Australia, while in the United States a variety of rules and enforcement bodies are in place.
Given the extent of the changes the Commission has proposed to Manitoba's Act, the Commission's first recommendation for reform is to replace the Act with a new Conflict of Interest Act. A draft Act has been appended to the Report as Appendix A.
The single most important change the Commission has recommended is the creation of the position of 'Conflict of Interest Commissioner'. This individual, an independent officer of the Legislative Assembly, would be appointed by the Assembly and would report annually to the Speaker. He or she would not only be responsible for enforcing the provisions of the Act, but would also (and more importantly) assist members to comply with the Act's provisions. This would be done through various educational activities, meeting with members to review their disclosures, and providing authoritative answers to specific queries. In order to maximize the Commissioner's independence, he or she would be appointed for a six year term, which would be renewable.
The Commission has recommended that any member of the public, in addition to members of the Assembly, the Assembly itself, and Cabinet, should be able to file a complaint with the Commissioner. In addition, the Commissioner should be able to initiate an investigation of his or her own volition. If it is necessary to investigate a potential violation of the Act, the Commissioner would have the authority of a commissioner under the provisions of The Manitoba Evidence Act dealing with public inquiries.
On completing an investigation, the Commissioner would submit a report to the Speaker, recommending one or more of a variety of possible remedies. The final decision as to whether to discipline a member, and as to the appropriate remedy, would be left in the hands of the Assembly. Possible remedies would include a reprimand, a fine, an order of restitution or compensation, suspension of the member's privileges, and declaring the member's seat vacant. The Commissioner may recommend no penalty, or that no penalty be levied if the member takes certain steps. Whatever decision the Assembly makes would be final and not subject to appeal.
In addition to creating the position of Commissioner, the Commission has recommended a number of other major changes to the current Act. One is the definition of a conflict of interest, which is currently vague and unclear. The definition should be amended to be brought in line with the definition in use in other Canadian jurisdictions. "Apparent" conflicts of interest should also be prohibited, in order to enhance public confidence in Manitoba's political process and the province's elected representatives.
The extent to which members must account for the interests and activities of their family members should also be expanded, and the extent to which they must report the receipt of gifts or other benefits. Cabinet Ministers should be prohibited from certain activities that would be likely to conflict with their public duties. As well, Cabinet, Cabinet Ministers, and public servants would be prohibited from entering into contracts with former Ministers that would be in breach of the Act. The provisions prohibiting dealings between former Cabinet Ministers and the Province should also be clarified, simplified, and strengthened.
The Act, as noted earlier, presently covers certain senior public servants. They should not be included in the new Act, but should be the subject of separate conflict of interest guidelines instead, as inclusion in the Act is not a particularly useful way to deal with conflict of interest issues involving public servants.
The categories of information that members must disclose should be expanded and clarified. In particular, they should be required to disclose, on a private disclosure statement, the actual values of their assets and income. The Commissioner would then remove the values before the disclosure statements are made public. The public disclosure statements should be more widely available to members of the public, and in particular it should be possible for people to obtain photocopies of the statements on request.
The Commission strongly recommends that the new Act should be prefaced with a statement of principle, which would be intended to provide additional guidance to members and would increase the effectiveness of the Act's specific proscriptions. The Commission does not consider it necessary, however, to include parliamentary convention among the Conflict of Interest Commissioner's responsibilities.
Finally, the Act should be automatically reviewed every five years to ensure that it is always as effective as possible, and that it keeps step with societal expectations.
Report #106,
December 2000
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