Evidence of meeting #6 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was office-holders.
A recording is available from Parliament.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
Thank you, Ms. Shepherd, for being here with your colleagues.
I want to come back to Mr. Wrzesnewskyj's question about the number of active investigations under way. I wonder if you could tell me how old those files are. When were the complaints made, or when did the investigations begin, and how long is it taking you to clear investigations?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
On the investigations side, the six that were remaining were opened sometime between 2005 and 2007. One of the reasons for the delay with the investigation, as you may be aware, was that there was a court case filed on the four that we did table with Parliament. When we received the results of the decision from the court in March 2008, the decision of the judge actually questioned the registrar's ability to investigate breaches of the act where the individual had not been registered. We obviously didn't agree and asked for a stay. They actually said it affected our administrative reviews, which is the fact-finding stage of most of our files.
We were granted the stay in July or August. But on the investigation side, in terms of proceeding with them, we didn't know whether the court was going to uphold the decision, and the last thing we wanted to do was to have more reports being tabled in Parliament. We did not get that result until December. In February, the individual asked for leave to appeal to the Supreme Court. We have 30 days to respond.
As well, there is a transition position that will allow the commissioner to look at the investigations previously done under the other regime.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
It has come up already that there's a difference between the definitions of public office-holder in the Lobbying Act and the Conflict of Interest Act. I'm wondering if that's proven to be a problem in terms of the work that you do, or are there other areas where there are differences between those two pieces of legislation that might complicate the work you have to do?
Bruce Bergen Senior Counsel, Office of the Commissioner of Lobbying
I don't think that has really been a problem to date. The definition of public office-holder in the Lobbying Act has not changed from the Lobbyists Registration Act. So it's a long-standing definition.
The definition of a designated public office-holder is a subset of that much larger group. As Karen mentioned, I think there have been some growing pains, with people being unclear whether or not they are designated public office-holders under the Lobbying Act. So that's manifesting itself in the monthly reports and in reports being filed where the meetings are not with designated public office-holders.
There was also a bit of a complicated transition that the previous member asked about, in terms of the gap. As you may have heard from the Conflict of Interest and Ethics Commissioner, she was appointed in July 2007, six months after the Federal Accountability Act was passed and received royal assent, but a full year before the Commissioner of Lobbying was created under the Lobbying Act. So there is a transition period with respect to, for instance, the conflict of interest code for public office-holders being subject to the five-year ban under the code prior to the five-year ban coming into force in the Lobbying Act.
I think there may be some individuals for whom this has created a difficulty or a lack of clarity in how the two acts work together. From the lobbying side, from July 2008 and going forward, it has not really been a practical problem, simply because the act is quite clear about who is a designated public office-holder and who is a public office-holder.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Ms. Shepherd, you mentioned that the code of conduct for lobbyists was developed in 1997 and has still been in effect from that day. Has it been revised since then, or does it need revision? What is its status?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Good question. It has not been revised to date, other than by the previous registrar, who changed the opening message. The previous message from Howard Wilson, the registrar who had brought in the code in 1997, indicated that a breach of the rule would be necessary to determine a breach of the code. And Michael Nelson, the previous registrar, had changed the preamble to say that it's not just the rules, but that if you broke a principle, he would consider that. I think, given the importance of the Lobbying Act—and the spirit is quite important as well, as we were saying earlier—I've not seen reason to change that at this point.
Is that something I would look at as commissioner? Yes, I might.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
It seems that there's been some significant changes in the area since 1997. Does that not affect the code of conduct in some way? Would the new legislation, for instance, not have implications for the actual code?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
The principles of the act have not changed. The four principles I mentioned during my introductory remarks are actually the same four principles in the code. I don't see the changes in the act affecting that at all.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
There's been some discussion in the media recently about dinners and receptions that MPs and cabinet ministers are invited to. They're getting more elaborate, fancier, or better, depending on your perspective, I guess. Do you have any concerns about the participation of public office-holders in those kinds of events?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
The act is quite specific in terms of the paid lobbyist and types of communication. We have had individuals call our office saying they were doing such-and-such an event and asking whether they need to register it. The act does have formal communication as well as informal communication. They may say that it's just a meet-and-greet. We'll say that if it's a meet-and-greet, that's fine, but they need to be cautious. If it were to enter into talk about changing a policy, then they may want to look at whether they need to register that event.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Ms. Shepherd, thank you for your presentation today.
I note that in the Federal Accountability Act there is a five-year ban on lobbying for former public office-holders once they leave office. There is a possibility of exceptions being made to that rule. I wonder if you could describe under what circumstances such exceptions might be made, or that perhaps have been made.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I would probably start with what the act says, and that's very much what I did in looking at the exceptions. The act is pretty clear that while the commissioner can grant an exception, it needs to be done in accordance with what Parliament intended.
Some of the reasons given in the act are whether a person was acting, for example, for a short period of time, or whether they were doing student or administrative work. Others are whether the new employer would benefit from the experience or knowledge that they gained. Those are some of the reasons that are currently in the act, which I will be looking quite seriously at in a report coming forward.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
For clarification, if an individual had new employment that was fairly unrelated to what they had done as a public office-holder, would there be a possibility that they would be excepted in that circumstance?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
That would be one of the factors. But first it would be what they were actually doing while they were in government. The act is quite specific in terms of designating certain individuals and wanting to ensure, as I mentioned earlier, that they could not use personal contacts that they may have gained. In passing the act, Parliament saw five years as being the time limit to reach that objective.
It's not an easy, clear-cut answer. I will look at each case in terms of its merit.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Have you had many of these sorts of applications thus far?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Since July, when the act came into force, seven exemption applications have been put in.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
There were only seven applications. How many have been granted?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I have only granted one to date.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
You mentioned earlier about the monthly reports that lobbyists and public officer-holders are required to file about communications.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I'm sorry if I was misunderstood. The lobbyist is required to file the monthly communication entry. The requirement in terms of the designated public officer-holder is if they were requested by me to verify that entry.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Once these reports are filed by the lobbyists, what do you do to confirm the accuracy of those reports? How regularly do you exercise that power to verify the accuracy?
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Since we put a process in place, we're verifying roughly 40 entries a month. Between July and November we verified more than 300 entries, which is roughly 13% of the communication entries that had been filed. The responses we've received seem to indicate an error percentage of about 7%.
The next stage is to go back to the lobbyist. It's their responsibility. We can't just change it because a public officer-holder said it. The act requires that the lobbyist create and verify. We have asked the lobbyist to come back to us and request that we make the change in the system.
What we're working on, which we hope will make things even more efficient, is to allow them to go in themselves to make the changes. Some lobbyists have realized that they've made an error with the date, and they have asked if they can change it.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So the sort of error you're finding in here is with dates as opposed to the substance of the communication.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Yes, the errors have tended to be dates. But Bruce also mentioned that sometimes people are not clear on the designated public office-holder, so they include directors general. But there are also some who feel that because it's free they want to make sure they're protected, so they put in their names. We're trying to educate lobbyists and even public office-holders about the type of information we can collect. The act was quite specific about what we can actually put in the system.
