Information & Ethics Committee on Sept. 18th, 2006

[Jim Peterson, Liberal, Willowdale, ON]

I seek your views on the five-year lobbying ban on senior public office holders. Are there any other jurisdictions that impose that type of five-year ban?

[Michael Nelson]

I think we looked into that.

Do you know, Bruce?

[Bruce Bergen, Counsel, Office of the Registrar of Lobbyists]

There are none that I'm aware of.

[Michael Nelson]

I don't think I'm aware of any other jurisdictions that have imposed that kind of ban.

There are other ways it's implemented—through conflict of interest codes and things like that—much as we have here in the conflict of interest code. But as I pointed out at the beginning, the amount of lobbying legislation that's out there is pretty astounding, and it's being changed because recently lobbying has received a lot of attention worldwide. It's being changed a lot, so what I'm telling you could be wrong as I tell you. There could be somebody bringing some in somewhere, but the simple answer is that I'm not explicitly aware of any.

[Jim Peterson, Liberal, Willowdale, ON]

I just want to say that as an MP, I've benefited a great deal from lobbyists coming and teaching me about issues. I feel it's my obligation as an MP to get both sides of the argument, however. But often lobbyists are very fine teachers on very complex issues. We recognize that there is self-interest, but I don't think lobbying is a dirty business--necessarily.

[The Chair, Liberal, Tom Wappel]

You stopped just before “necessarily”. Are there any other questions, Mr. Peterson?

Monsieur Laframboise is going to ask questions.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I would like to add that this may be a necessary evil. If there are so many laws, it's to provide a framework for everything.

I understand that you are now independent, and will be completely autonomous in your management and investigation procedures.

I'll come back to the example Mr. Peterson gave a few moments ago: we cannot do indirectly what we are not permitted to do directly. So if someone is appointed to a board of directors and paid as a director because he or she has worked with the federal government in the past, and then leaves without being paid, that person is doing indirectly what he or she could not have done directly. In my view, the intent of the legislation is to give you the power to examine that kind of thing.

Do people often call you to ask whether they are in fact lobbyists? Do some people take the time to call you to discuss the issue with you, or does that happen only rarely?

[Michael Nelson]

Yes, it often happens. I will ask our Director of Operations, Pierre Richard-Desjardins, to answer your question. His people are the ones who respond to such queries.

[Pierre Ricard-Desjardins]

Every day, members of our staff receive some 20 calls from people who set out their individual situation and ask us to help them define it. We do provide answers, but we have to be cautious. On the whole, our approach is to explain the content of the legislation, as well as the requirements in the regulations, without necessarily issuing an opinion on their individual situations.

The Office of the Registrar of Lobbyists is a quasi-judicial organization. Let's say that we tell a lobbyist he or she can go ahead without having to register, and a few months later, we have to investigate that case. To avoid that kind of situation, we spend a great deal of time explaining the legislative requirements to people, so that they can see whether they are lobbyists or not within the meaning of the legislation. In the end, the decision is up to the individual. Where things are unclear, people can seek advice, or ask a legal advisor to provide some clarification.

We also need to consider the fact that we are guided by the spirit of the legislation. The system is based on self-declaration, somewhat like the Income Tax Act. A declaration, or statement is made, and all parties certify it. We consider a statement true until such time is there is evidence to the contrary. The only means we have to determine whether a statement is indeed true is to conduct an investigation pursuant to the powers at our disposal. Since lobbyists are themselves responsible for self-declaring, when potential lobbyists ask us for advice as to whether or not they should register, we make no decisions. However, we do explain the situation as clearly as possible.

[The Chair, Liberal, Tom Wappel]

Mr. Van Kesteren, please.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

I want to understand something, and I'm glad Mr. Peterson brought it up. That was the point I was trying to make. I want to understand this clearly. Mr. Peterson mentioned somebody on the board. Let's just say somebody is hired by a firm, a large firm, and there's no way of knowing what his function or what his job is. You have nothing in place at this point if he's hired by a firm, be it as a chairperson or as somebody in an administrative position, and yet his sole function is to influence politicians. There's really nothing that protects us. Is that correct?

[Michael Nelson]

No, I don't think so. As I said, for something that has a relatively simple intent, this act has twists and turns.

If somebody is hired by a firm and is an employee of the firm, not under contract but an employee of the firm--and here's another trigger under the act. If it's a commercial corporation and the entire lobbying effort of the firm is more than 20% of one person's time, even if that's accumulated--if they have 20 people who are doing this activity and each one of them is doing it 1% of their time--that triggers the requirement for that company to register. The CEO or the senior person in the organization has to register everyone; he registers, and then on his or her registration they list everyone in the organization who is doing more than 20% of their time lobbying.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

I understand that, and I understand the rules, if everybody complies with the rules...but are there a few areas where a corporation could duck under?

I read an article once and I was actually quite shocked to see the lists of people who once served in government working for a large firm, and they weren't registered as lobbyists. Most of those people, or at least those who were listed, came directly from government as elected officials. We can draw our own conclusions, but obviously these people would have an enormous amount of influence just by the people they know. If that firm were to hire them and to give them a job description, there really is no way of knowing, if they have a job description, that the overall intent is to influence those in government. Am I correct in thinking that. Is there a danger there?

[Michael Nelson]

To move to something I could talk about at the very end, what is terribly important in this act, because of the types of situations you've talked about, is that public office holders know what lobbying is and what the obligations are of lobbyists. When somebody is talking to them, they have the reaction of saying--and more and more are, by the way, because they call my office about this--“I can't find you on the registry. Have you considered whether you should be registered or not?”

Without being cute, it takes two to lobby: it takes somebody who is willing to be lobbied and it takes the lobbyist. The education part.... When I go before the Senate I'll be talking about this, if they choose to invite me. Another critical power or obligation that's given by Bill C-2 to the commissioner of lobbying is the explicit mandate to go and tell public office holders what lobbyists are supposed to be doing.

You're right: unless there's a sensitivity on the public office holder's part, I may never find out about that. So it's very important that we and public office holders know what the obligations are. It would take a hundred people like me in an office to ever sort that out, so I need to use leverage, and education is the way to get that leverage.

[The Chair, Liberal, Tom Wappel]

Thank you.

Mr. Tilson.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Chairman, I would follow along the line of questioning that you made, as well as Mr. Peterson.

You responded particularly to Mr. Peterson by saying there are some grey areas, which is rather troubling. With the existing law, and indeed the proposed Bill C-2 legislation, are you given discretion to set forward policies and rules and structures as to how you're going to operate? I guess I'm looking ahead to Bill C-2, if that's passed. In other words, if it's not mentioned in the legislation, and there are about eight or nine amendments that have been made, I think, with respect to Bill C-2, you get into the details--to use your words, the grey areas.

Are you able to assist lobbyists, politicians, or anyone with respect to the types of questions that were asked by Mr. Peterson?

[Michael Nelson]

I believe in many cases I am.

The power that the existing law gives the registrar, and this is continued with the commissioner of lobbying, is to issue interpretation bulletins. When you run into something that nobody thought of--because you can't think of all of these situations, there are so many situations--interpretation bulletins allow the registrar to say, look, when we run into this type of situation, here's the way I'm going to look at that. For instance, for the word “communication” that's in the current act, I created an interpretation bulletin that said here's what I mean by communication. Communication is one of these words that is difficult to communicate, I would say, from time to time. What you do is come up--

[The Chair, Liberal, Tom Wappel]

It's like entitlements.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Don't go there.

[Michael Nelson]

To answer your question simply, yes, I think the registrar and the commissioner of lobbying can be helpful by using these instruments. They're not statutory, which means that if somebody chooses to challenge them in court, they could be overturned. What that means is you have to think about them in the first place.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Taking that interpretation, the example that Mr. Peterson gave, your office makes an interpretation. Is that appealable?

[Michael Nelson]

Bruce?

This is why my lawyer is here with me.

[Bruce Bergen]

With respect to a decision of the registrar, the short answer would be that it could be an administrative decision that could be subject to judicial review. We have found that there have been cases that have been judicially reviewed in the courts.

A decision with respect to simply advice given to a lobbyist may not be of that nature. It may not be a decision subject to judicial review.

[David Tilson, Conservative, Dufferin—Caledon, ON]

I'd like to stick to the example that Mr. Peterson gave, and I think it's a wonderful example. Your response is, “Well, there are grey areas”. So your office prepares a bulletin or an interpretation, and the person who's working as the director says, “I don't agree with that”. Can you go to court for that?

I guess what I'm getting to is what you do now and what Bill C-2 is going to do, and the structure you're going to develop--I assume you're going to develop a structure for Bill C-2 to cover this whole bunch of new areas, the areas that aren't mentioned specifically, whether they're in regulations or whether they're rules, or whatever they are. That's where I'm going on this.

The question Mr. Peterson asked is a good one, but it's an example of how the office plans to deal with issues such as that. If someone doesn't agree with you, what are they going to do? Do they have recourse?

[Michael Nelson]

To answer the question directly, to my knowledge Bill C-2 doesn't change the structure of the interpretation bulletins or the outcomes. What will change is that a registrar's office that we can speak to, if there is interest, that is structured to have a function that will actually look into these grey areas, create interpretation bulletins, and have them tested by the courts if necessary by having a decision made...that type of registration, that type of office, is not what has existed in the past. I now have an investigations directorate and a research function. I'll be asking Parliament for money through the supplementary estimates this year to fund those functions in the future.

So the bill itself doesn't change anything, but you have a much more enthusiastic, activist, and well-resourced function through, I would say, what Bill C-2 is proposing, with a mandate to go out and find out what these grey areas are and get them sorted out. I agree with you, grey areas are the death of any kind of system, because as soon as you find one grey area, people move into it and you can't get at them.