While most everyone would say that it is a conflict of interest for Prime Minister Harper’s chief of staff Nigel Wright to meet and be lobbied by Barrick Gold or any of the dozens of companies in which he has friends and/or financial or other interests, in almost every case the lobbying is legal.
In fact, in almost every case it is legal for Wright, and every cabinet minister and staff person, and every senior government official, and every MP and senator and their staff, to lobby and make decisions on issues and matters in which they, their families and friends have financial or other interests.
This is all legal because of a huge loophole added in December 2003 by Paul Martin to the federal cabinet ethics law, and that MPs and senators included in 2004-2005 in their new House and Senate ethics codes. Stephen Harper promised in the 2006 election to remove the loophole from the cabinet ethics law but he broke his promise.
Prime Minister Harper put stronger ethics rules into his Accountability Guide for cabinet ministers, but those rules do not apply to cabinet staff, and so far he has ignored every violation of those rules. In addition, the staff of MPs and senators are not covered by any ethics rules (except senior staff in the Leader of the Opposition’s office).
The effect of the Martin loophole is that no one is considered to be in a conflict of interest unless they are dealing with a very specific matter such as a merger, takeover, license, approval or contract (and only about 1 per cent of their decisions are about these things).
To put it another way, federal ethics rules do not apply to 99 per cent of the decisions and actions of federal politicians and senior policy-makers.
These very weak rules combined with the very weak enforcement attitude and record of federal Ethics Commissioner Mary Dawson (who has interpreted rules in many cases in very questionable ways that let Cabinet ministers and MPs off-the-hook), and the weak enforcement powers of the Senate Ethics Officer, mean that it is effectively legal for all federal politicians, staff and senior government officials to be unethical.
Ironically, the ethics rules that apply to the most junior government employees require them to avoid even the appearance of a conflict of interest in all their decisions and actions. In other words, the least powerful decision-makers in the federal government
have the strongest ethics rules (although these rules are also not effectively enforced because of the generally weak enforcement attitude and record of internal auditors, senior government officials, and the Public Sector Integrity Commissioner).
The Cabinet ethics law (called the Conflict of Interest Act), and the MPs’ ethics code, will be reviewed by House committees this fall, and the Senate is also reviewing its code. We can only hope that they will close this huge loophole (and many others) and strengthen enforcement so that everyone involved in federal politics will, finally, be required to be ethical.
Before 2004, ethics rules applied to all the decisions and actions of Cabinet ministers, their staff and senior government officials because they were required to, in every case, avoid even the appearance of a conflict of interest. The rules were almost never enforced because of lapdog ethics officers, but they did exist. In December 2003, Paul Martin put in the loophole that gutted the rules in the Conflict of Interest Act, and Stephen Harper promised in the 2006 election to remove that loophole but he broke his promise. See details in Democracy Watch’s December 3, 2010 news release.
Prime Minister Harper put stronger ethics rules into his Accountability Guide for Cabinet ministers, but those rules do not apply to cabinet staff, and he has ignored every violation of those rules. See details here.
In 2004, MPs finally (137 years after Canada became a country) enacted an ethics code for themselves, and senators followed in 2005 with their code. Both MPs and senators included the loophole that Paul Martin put in the cabinet rules, and failed to apply the rules to their staff. See details in Democracy Watch’s recent op-ed.
While the Ethics Commissioner has been independent of Cabinet since spring 2004, current Commissioner Mary Dawson and her predecessor Bernard Shapiro (and the lapdog Ethics Counsellor Howard Wilson before them, who had no independence or powers), have all let dozens of Cabinet ministers, staff, senior officials, and MPs off the hook for clearly unethical activities. See details here and specifically about Commissioner Dawson here.
The Senate Ethics Officer, like the former Ethics Counsellor, has no independence and very weak enforcement powers. See details here.