Hon Margaret Wilson MP
Speaker of the House of Representatives, New Zealand

A Code of Conduct for Members of Parliament
- is the time ever right?

Speech to 38th Presiding Officers and Clerks Conference
Rarotonga, Cook Islands

2pm, Thursday 12 July 2007
(12 noon, Friday 13 July 2007 NZT)

The question of whether New Zealand Members of Parliament should be subject to a specific code of conduct recently arose in the New Zealand Parliament. While there have always been rules of conduct in New Zealand for members these have typically been confined to conduct affecting the good order of parliamentary business itself. Such rules are normally to be found in our Standing Orders and Speakers’ Rulings and include restrictions on speech or behaviour that insults or intimidates another member, shows disrespect to the Parliament or the presiding officer, and other such matters.

The question of whether Parliaments should adopt a specific code of conduct has been raised in many jurisdictions in recent times. The justification for such codes is normally the need to enhance public confidence in the integrity of Parliament. A lack of confidence in Parliament is often associated with a public disquiet related to financial interests, in particular the perception of members using their position to advance their own personal interests or those of individuals or organisations with whom they are associated or for whom they have acted. The call for a code often arises from specific incidents relating to members’ impropriety in their use of public funds or their position. The precise form of such codes reflects the constitutional and legal arrangements already in place in the jurisdiction concerned, including provisions in electoral law and sanctions under the criminal law.

The United Kingdom House of Commons has comprehensive arrangements relating to members’ standards of conduct. The original Code of Conduct derived from recommendations of an independent committee, set up in 1994 by the then Prime Minister over a “cash for questions” affair. A document entitled the Code of Conduct and the Guide to the Rules relating to the Conduct of Members was approved by the House of Commons in July 1996. Substantial changes were made to the Guide in May 2002 and a revised Code and Guide were agreed to in July 2005.

The Code consists of three broad statements of public duty, seven general principles of public conduct and eight specific rules of conduct. The specific rules include always putting the public interest before private interest, being open about personal interests, not misusing facilities or allowances received as a member, and not doing anything that would bring the House into disrepute. There is a procedure whereby complaints may be made by members of Parliament or members of the public to the Parliamentary Commissioner for Standards, who is an officer appointed by resolution of the House of Commons and who reports to the Committee on Standards and Privileges, a select committee of the House.

The Scottish Parliament has adopted a Code of Conduct for its members which, although drawn up under its Standing Orders, incorporates or cites statutory requirements. These include certain provisions of the Scotland Act 1998, the Interests of Members of the Scottish Parliament Act 2006 and the Scottish Parliamentary Standards Commissioner Act 2002. The latter established an independent Parliamentary Standards Commissioner to deal with complaints against Members. Indeed this approach extends to constituting offences where a member acts without having registered his or her financial interests. While clearly influenced by the Commons model, the Scottish Parliament’s Code ranges further. The Code sets out key principles – public duty, duty as representative, selflessness, honesty, accountability and openness and leadership. It provides for the registration and declaration of interests, prohibits paid advocacy and addresses contacts with lobbyists and access to members.

The Code’s section on general conduct is particularly extensive. It refers to such matters as a member’s duty as a representative and the acceptance of hospitality, gifts or other benefits. It extends to equal opportunities policy, the treatment of parliamentary staff, smoking, the consumption of alcohol, and the use of parliamentary services and facilities and official stationery and mail. Moreover, this section of the Code refers to conduct in the chamber and during committee meetings, down to the need to respect rules on the non-disclosure of confidential draft reports or other documents. This is entering very much into the conduct of parliamentary proceedings and administration. I note that complaints coming within those areas are to be referred to the Presiding Officer or to the Scottish Parliamentary Corporate Body.

In Canada the Senate and House of Commons each has a code and there has been a guide on conflict of interests for Ministers since 1993. A Special Joint Committee on a Code of Conduct was established by the Senate and the House of Commons in 1996 and its report proposed a Code of Official Conduct. In 2002 the Government endeavoured to promote the code as part of an Eight-Point Plan of Action to strengthen ethics throughout Parliament, the Cabinet and the public service. Legislation was eventually enacted in 2004. Further legislation, associated with a Federal Accountability Act, and assented to in December 2006, would combine the offices of Ethics Commissioner and Senate Ethics Officer into a new position of Conflict of Interest and Ethics Commissioner.

In Australia, while legislative chambers at federal and state and territory levels have a register of members’ interests, neither the Senate nor the House of Representatives has a formal code of conduct. I gather that most states and territories do. I know that some, as in New South Wales, have regulating authorities that may intervene.

In New Zealand there have long been rules requiring members to declare any financial interest that they have in any item of business before participating in its consideration by the House (Standing Orders 165-167). There have been Speakers’ Rulings defining the position since the 19th Century. Ministers’ pecuniary interests came to be addressed in a systematic manner before those of members generally. In response to an instance involving a Minister, an ad hoc select committee, the Ministers’ Private Interests Committee, was established by the House in 1956 to inquire into and report on the principles that should be observed by Ministers in the arrangement of their private interests while holding office under the Crown.

These guidelines were replaced in 1990 by new ones announced by the Prime Minister and they were incorporated into the Cabinet Manual. There have been extensive provisions spelling out Ministers’ public duty and covering such matters as identifying and managing conflicts of interest, constituency interests, the interests of family, whānau and personal friends, association with non-public bodies, gifts, and outside activities. There has also been reference to dealing with conflicts of interest in relation to House business.

A Member of Parliament (Pecuniary Interests) Bill was introduced by the Leader of the House in October 2003. The Standing Orders Committee, to whom the bill was referred, recommended, however, that the bill not proceed but that its provisions, with amendments, instead be incorporated into the Standing Orders. Following that option meant that a majority of the Standing Orders Committee could then support adoption of the provisions.

Under the Standing Orders adopted in August 2005 all members are required to register pecuniary interests on an annual basis. There are 13 categories, ranging from controlling interests in companies to gifts and payments for activities. A registrar is appointed to provide advice to members and to compile a summary of returns, which is published on a website and in booklet form and presented to the House. Copies of the returns are given to the Controller and Auditor-General for review and inquiry.

Requirements for formal disclosure of pecuniary interests can form a significant part of, or have a complementary association with, a code of conduct. But while the New Zealand Parliament has adopted procedures requiring members to make an annual return of pecuniary interests, it has not so far chosen to adopt a code of conduct that contains other elements.

On 12 June 2007, however, four minor Parties – the Greens, Maori Party, United Future and the ACT Party – held a press conference and announced they were signing a Code of Conduct (see Attachment No 1) and strongly urged other Members to also sign. The Code was to be voluntary but the intention was that if enough Members signed, then the Code of Conduct could be adopted by the Parliament and included in the Standing Orders. The announcement of the Code followed a letter to the Speaker in March outlining concern about the poor behaviour in the House, particularly at Question Time. The main concerns expressed by the four parties were –

1. the strategy of organised barracking by parties
2. constant points of order, which are repeatedly silly and frivolous and intended to hector, bully and destabilise those asking or responding to questions
3. Ministers indulging in flippant comments and put-downs rather than addressing the question.

The letter also complained of the shouting matches in the House that meant it was difficult to hear what Members were saying to each other. They stressed that an MMP Parliament demands a standard of behaviour that allows all voices to be heard.

This letter had followed the development of a tactic by the major opposition party – the National Party – in shouting down the answers of Ministers, in particular the Prime Minister – so it was impossible to hear the reply. It was also impossible for the Speaker to identify a particular offender and exercise the power under the Standing Orders to ask the Member to leave the House. Opposition Members were aware that the Speaker could not eject all the Members without looking like I had lost total control of order in the House. Government Members had also adopted the practice when National Opposition Members sought to ask a question as a response to this tactic.

The co-leader of the Green Party, Jeanette Fitzsimons, stressed that the Code was not only about behaviour in the House but covered wider ethical issues that stressed Members’ responsibility to the public good rather than their own personal interests. Peter Dunne, leader of United Future, talked of the challenge to the two old parties to follow the example of the newer parties, while Tariana Turia, Maori Party co-leader referred to tikanga and kaupapa guiding the conduct in the House. She said that those principles of respect and integrity fitted well with those expressed in the Code. Rodney Hide, ACT Leader, referred to the New Zealand Parliament being second rate in its behaviour and the time had come to provide a Parliament we could all have pride in.

In other words, the Code was to assist Members in the discharge of their obligations to the House, to their constituents and to the public. The promoters of the Code noted that it was intended to supplement and support Standing Orders and Speakers’ Rulings. It is also clear that the Code was intended to provide a standard against which the public could judge members’ activities. The other point made by the promoters gives some insight into the motivation behind the Code. It is that an MMP Parliament demands a standard of behaviour that allows all voices to be heard. This last point is an important one.

Under the first past the post electoral system, there were normally only two parties represented in Parliament. They contested each other for dominance in the House, particularly at question time and during the general debate. Under MMP there are eight parties in the New Zealand Parliament and two Independent members. These parties are small in number and at times in the cut and thrust of the debate between the Labour and National Members, the minor parties may feel they are participating from the sidelines.

The opportunities for the minor parties to participate are limited under a MMP system that is governed by the concept of proportionality. Question time is the highlight of our Parliamentary day, the time when Ministers must account for their actions and that of their departments. But the minor parties’ opportunities to ask questions are limited by proportionality (see Attachment No 2), ironically the same concept which propelled them into Parliament under MMP.

Whether the Code of Conduct will help ensure all members have a right to be heard, a fundamental right of a Member of Parliament is yet to be seen. The members are heard at the moment under Standing Orders. The Code is not only about behaviour, it sets a standard of behaviour against which members will be accountable. It has so far received little support from members other than those of the minor parties. The general view is that Parliament is a robust environment in which ideas should be vigorously contested. Another view is that such a Code will be used politically.

It is interesting to note that this is not the first attempt at a Code of Conduct. A member of the Government (Ross Robertson, Labour) has been pressing for adoption of a code of ethics for members since at least 2001. The code proposed by the member follows the code adopted by the United Kingdom House of Commons in 1996, setting out a purpose statement, the public duty of members, and general principles relating to selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

Back in New Zealand there is also the issue of the role of the Speaker in any Code of Conduct. I have agreed to be the repository of the minor parties’ Code but I have no authority to enforce it. If such a Code were ever to be adopted, it is a question as to whether the Speaker is the enforcement agent and what remedy/penalty would be available to me. If it was incorporated into the Standing Orders then the contempt provisions may provide a way forward with any breach being referred to the Privileges Committee. This would still require a reference by the Speaker. Whether it is appropriate for members to adjudicate on each others’ behaviour may not have the same level of public confidence as an independent agency. The establishment of such an agency would require legislation and the appointment of adjudicators who have the confidence of members and the public.

In conclusion then, the Code of Conduct is unlikely to attract support from the large parties and will therefore go down in our Parliamentary history as another attempt to raise the standards of Parliament. I doubt that the issue will go away however. The public service has just adopted a code of conduct. Most professional bodies have such codes, and there is a general trend towards ethical matters to be a part of decision making in public and private spheres. The New Zealand Parliament however has a long tradition of resisting regulatory intrusions into matters that govern the working of Parliament and the conduct of members. Short of the issue becoming the subject of a coalition agreement, it is unlikely that the New Zealand Parliament will be subject to a formal code of conduct.
Attachment No 1

The Code

Preamble
We, as members of the New Zealand House of Representatives, recognise that it is in our individual collective interest to foster and sustain public confidence and trust in our integrity as individuals and in Parliament as an institution. To this end, we will be guided at all times by the public good and ensure that our actions and decisions are taken in the best interests of the public.

1 Working for the public good
We accept that we have a duty to act in the interests of the nation as a whole, the House, our constituents, and the public.

2 Showing respect for Parliament
We have a duty to show respect for the Speaker and the authority vested in the Office of the Speaker by the Parliament.

We will show respect for other Members. We will behave in a manner that enhances the dignity and decorum of the House. We will debate the issues raised and refrain from personal attacks.

As representatives of the people, we will conduct ourselves in accordance with the provisions and spirit of this Code of Conduct and ensure that our conduct does not bring the integrity of our office or the New Zealand Parliament into disrepute.

3 Not accepting inducements
We will not solicit or receive any fee, payment, retainer, reward or gift in return for promoting or voting on any bill, motion or question put to Parliament or its committees, or in return for using our position as a member.

4 Not advancing private interests
We will not use information received in confidence in the course of our parliamentary duty to advance our private interests or the private interests of another.

5 Avoiding conflict of interest
We will avoid conflict of interests between our private financial affairs and our public duty as a parliamentarian. Should a conflict arise we will take all reasonable steps to resolve the conflict quickly and in a manner which is in the interest of the public.

6 Ensuring proper use of public resources
We will supply public resources prudently and only for the purposes for which they are intended.

Code of Conduct for Members of Parliament

Introduction

 The New Zealand electorate expects members of Parliament to act ethically and with integrity

 An MMP Parliament demands a standard of behaviour that allows all voices to be heard.

 This Code of Conduct enables the public to be clear about the principles that define members’ activities and how these principles are interpreted and upheld.

Purpose of the code

 The purpose of the Code of Conduct is to assist members in the discharge of their obligations to the House, to their constituents and the public.

 Nothing in the Code of Conduct derogates from Standing orders as Speakers’ Rulings or any other official code of conduct or guidelines for members. This Code of Conduct supplements and supports other requirements.

I “name” agree to uphold this Code of Conduct for Members of Parliament.

Signature: _________________________________________

Date: _________________________________________

Attachment No 2

QUESTIONS

THREE-WEEK ALLOCATION

Labour 28
National 56
NZ First 7
Greens 7
Maori 5
ACT 4
United Future 1
Independents 1 each

SUPPLEMENTARY QUESTIONS

WEEKLY ALLOCATON

Labour 49
National 98
NZ First 12
Greens 12
Maori 8
ACT 4
United Future 2
Independents 2 each

ENDS

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