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.
4:34 p.m.
Liberal
The Chair Liberal Paul Szabo
We will resume our meeting.
We now have before us, from the Office of the Commissioner of Lobbying, Ms. Karen Shepherd, the interim Commissioner of Lobbying.
Welcome to you, Ms. Shepherd. It's the first time we've seen you. Since this is a new area of responsibility, I'm sure there are a lot of things on your part that could be of interest to the members.
I understand you have an opening statement, and I hope you will introduce the colleagues you brought with you today.
March 2nd, 2009 / 4:34 p.m.
Karen Shepherd Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Thank you.
Mr. Chairman and members of the committee, I am pleased to be here today to discuss the mandate and activities of the Office of the Commissioner of Lobbying.
I have prepared short remarks, which have been distributed.
I am accompanied today by our legal counsel, Mr. Bruce Bergen, and by Monsieur Pierre Ricard-Desjardins, our director of operations.
Mr. Chairman, I thought that for the benefit of new members I would briefly explain the history of Canadian lobbying legislation. In the information kits that were distributed in advance, we have included a document entitled “Key Events in the History of the Canadian Lobbyists Registration Regime”, which we thought might be a useful reference document.
The first Lobbyists Registration Act came into force in 1989, but for all practical purposes, the disclosure requirements were no more than what you would find on a business card. In 1996 the Lobbyists Registration Act was amended to require a lobbyist to disclose more information, such as which departments they were lobbying, the subject matter, and the means of communication they were using. The 1996 legislation also introduced a requirement for the former ethics counsellor to establish a code of conduct. The Lobbyists' Code of Conduct came into force in 1997. In 2005 the Lobbyists Registration Act was once again amended to enhance transparency by requesting lobbyists to disclose additional information, such as whether they were former public office-holders.
On July 2, 2008, the Lobbying Act came into force, creating the position of Commissioner of Lobbying and the Office of the Commissioner of Lobbying. These changes were contained in the Federal Accountability Act. I was appointed as Interim Commissioner of Lobbying for an initial period of six months, which, in January 2009, was extended for another six months.
Accountability is the foundation upon which Canada's system of responsible government rests. Strong accountability assures Parliament and Canadians that its departments and agencies are using public resources efficiently and effectively and that they are promoting and safeguarding ethical practices. Transparency and accountability in lobbying of public office-holders contributes to the confidence and integrity of government decision-making.
The Office of the Commissioner of Lobbying is implementing and administering the Lobbying Act in accordance with the clear direction of Parliament and Canadian's desire for increased transparency and integrity within federal institutions.
As interim Commissioner of Lobbying, I believe that my principal responsibility is to ensure that lobbying activities conducted at the federal level are carried out in a transparent and ethical manner. The Lobbying Act aims to improve transparency by making it a requirement for lobbyists to register their lobbying activities and to file monthly communication reports when they are meeting with certain types of public office-holders. Increased disclosure requirements allow parliamentarians and Canadians to know who is meeting with senior holders of federal public offices.
“Public office holders” are defined as virtually all persons occupying an elected or appointed position in the federal government, including members of the House of Commons and the Senate, their staff, officers and employees of federal departments and agencies, members of the Canadian Armed Forces and the Royal Canadian Mounted Police.
The Lobbying Act ensures that lobbying activities conducted at the federal level are open and transparent. This legislation, like the previous versions of the Lobbyists Registration Act, is based on the principle that free and open access to government is an important matter of public interest, that lobbying public office-holders is a legitimate activity, that it is desirable for public office-holders and Canadians to know who is engaged in lobbying activities, and finally, that a system for the registration of paid lobbyists should not impede free and open access to government.
Lobbying is defined as communicating with federal public office-holders, whether formally or informally, for payment, with respect to the making, developing, or amending of federal legislative proposals, bills or resolutions, regulations, policies, or programs; and the awarding of federal grants, contributions or other financial benefits. In certain circumstances, arranging meetings with public office-holders is also lobbying. The act provides for three categories of lobbyists: consultant lobbyist, in-house lobbyist for a corporation, and in-house lobbyist for an organization.
The act specifically excludes from the registration requirements public submissions before parliamentary committees or any other federal bodies that are a matter of public record and, therefore, are considered to be transparent; submission to a public office-holder with respect to the enforcement, interpretation, or application of a federal law or regulation by that official; and communications restricted to requests for information.
All lobbyists are required to disclose certain information within time limits specified in the act. The information includes, as the case may be, the name of the client, the corporate or organizational employer, the names of the parent or subsidiary companies that could benefit from the lobbying activity, the organizations and corporations that are members of a coalition, the subject matters lobbied, the names of the federal departments or agencies contacted, the source and amount of any government funding received, and the communication techniques used. Corporations and organizations must also provide a general description of their business or activities.
The responsibility for filing a disclosure rests with the lobbyists themselves in the case of consultant lobbyists and on the most senior officer in the case of corporations and non-profit organizations.
The information disclosed in the lobbyists' registration system has been publicly available on-line since 1996 and is available 24 hours a day.
The Office of the Commissioner of Lobbying continues to make improvements to the lobbyist registration system to make it easier to register on and search that system. The registration system is the office's core instrument for recording the registration information of lobbyists. The registry, although it's already at the forefront of electronic registration, is more flexible and responsive than ever before and provides users with better information. I believe that recent upgrades to the system have made the registry a world class model for other lobbying jurisdictions.
The coming into force of the Lobbying Act has greatly affected the way we conduct business at the Office of the Commissioner of Lobbying. First, the Lobbying Act established the office of the Commissioner of Lobbying as an independent officer of Parliament, with the authority to enforce the Lobbying Act and the Lobbyists' Code of Conduct. The Commissioner of Lobbying now has enhanced investigative powers, as well as a formal mandate, to establish outreach and educational programs.
The second major change brought about by the Lobbying Act was the creation of a new sub-category of public office-holder. The Lobbying Act defines designated public office-holders as persons occupying senior positions, such as ministers of the crown, ministers of state and their staff, deputy ministers, associate deputy ministers, assistant deputy ministers, certain positions designated by regulation, and several positions of comparable rank. I have defined comparable rank in an interpretation bulletin to include those at the EX-4 level or the equivalent salary range.
Another significant change brought about by the Lobbying Act is related specifically to designated public office-holders. There is now a requirement for lobbyists to file monthly communication reports when communicating and meeting with these individuals. The monthly communication reports, as with the registrations filed by lobbyists, are available online in the lobbyists registration system.
In addition, designated public office holders and identified members of prime ministers' transition teams are subject to a five-year post-employment prohibition on lobbying after leaving such a position.
The Lobbying Act now includes a mandatory requirement for online registration, rather than the historical use of peer profiling by lobbyists. Prior to this requirement, more than 99% of lobbyists registered online; therefore, this is not viewed as an additional burden.
Another key amendment to the Lobbying Act that I would like to highlight is the extension of the period during which possible summary conviction infractions or violations may be investigated and/or prosecuted, and a doubling of the monetary penalties associated with such infractions.
To ensure that lobbying is done ethically and with the highest standards, the Lobbying Act provides for the Commissioner of Lobbying to develop a Lobbyists' Code of Conduct. The Lobbyists' Code of Conduct was established in 1997 and is currently still in use. It sets out objectives to enhance public confidence and trust in the integrity, objectivity, and impartiality of government decision-making. The Lobbyists' Code of Conduct, like other professional codes, establishes mandatory standards of conduct for all lobbyists communicating with federal public office-holders. As such, it forms a counterpart to the obligations that federal officials must honour in their own codes of conduct when they interact with the public and with lobbyists.
The code sets goals in terms of integrity, honesty, openness and professionalism by which lobbyists must abide. It also contains eight rules that set out specific obligations or requirements. The rules fall into three categories: transparency, confidentiality and conflict of interest.
Lobbyists have a legal obligation to comply with the code and the act. Under the Lobbying Act, the Commissioner of Lobbying can conduct an investigation if he or she has reason to believe that an investigation is necessary to ensure compliance with the code or act. The investigative powers of the Commissioner of Lobbying allow him or her to diligently enforce both the act and the code.
The Commissioner of Lobbying now has a clear and strong mandate to develop and institute educational and outreach programs designed to provide parliamentarians, departments, agencies, lobbyists, and Canadians in general with a better understanding of lobbying. We seek to ensure that lobbyists and the public office-holders with whom they communicate and others interested in lobbying activities fully understand and appreciate the rationale and requirements of the Lobbying Act.
I believe that by enhancing both the awareness of the act's requirements and the nature of lobbying as an activity, compliance can be better assured.
Although educating people about the act is important, violations of the Lobbying Act and the Lobbyists' Code of Conduct have been, and still are, dealt with appropriately.
Mr. Chairman, this concludes my remarks. I hope that I have given you and members of the committee an overview of the lobbying legislation.
I thank you for your attention and I now look forward to answering any questions you may have.
4:45 p.m.
Liberal
The Chair Liberal Paul Szabo
Thank you, Ms. Shepherd.
We'll move to questions, and we'll start with Mr. Wrzesnewskyj, please.
4:45 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Thank you, Commissioner.
You were only to be in place for six months, and a year has gone by. When do you expect a permanent commissioner to be in place?
4:45 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I'm aware that a selection process is under way. I am not privy to any of the details; the process is being managed by PCO.
4:45 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Have you found it difficult to function not knowing how much longer you're going to be there? Have you found there are departmental difficulties? For instance, will the coming report this year be as fulsome as it should be?
You may end up having another extension. Has it affected the work you're supposed to conduct?
4:45 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I have not found it affects the work I've had to conduct. In terms of the office I set up, obviously I had to replace myself, so I have a director of investigations in place. One of the things required by the act, or which I felt I needed to do as an agent of Parliament, was to hire a lawyer, which I've done in the six months. I've had a briefing binder prepared for a new commissioner coming in, and when I was reappointed for the next six months, we updated the binder.
In making decisions, I'm aware that a commissioner may come in, so I'm not making any drastic decisions in terms of organizational changes, but it hasn't stopped me, for example, from granting exemption requests. I granted one exemption request, which is already on the system.
In terms of the report you were asking me about, I think the report would be the same if there were a commissioner in place. Would it go further? Perhaps.
4:45 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
How many lobbying companies have you investigated during your term?
4:45 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
There are two ways of answering that question.
4:45 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
The reason I say so is that we have active files open, and I believe we have opened 61 over time and currently have 43 active files. But more than that, one of the things we do is—
4:45 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Let me just stop you there. There are 43 currently active files, and you've investigated 61. Is that correct?
4:45 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Yes, but I'm just going to verify the numbers. Since 2005, we have initiated 61 administrative reviews, as we call them, and 10 investigations have been open since 2005.
4:50 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Okay, so 18 files were closed. Were they closed because you were satisfied with your investigations? That's the first question.
You just mentioned there are 10 ongoing investigations. What kinds of issues are we dealing with in those particular 10?
4:50 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Ten investigations were initiated under the previous regime. Four of them have been closed and have actually been tabled with Parliament. I'd have to go through all of the details, but they dealt primarily with individuals who had not registered.
4:50 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
When you go in to investigate a company, are there any requirements for them to keep a standardized logbook of all interactions they have had with public office-holders?
4:50 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
There's no requirement under the act for them to keep specific records, except there's now the new requirement in the Lobbying Act for monthly reporting. Should they meet with a designated public office-holder and they have arranged the meeting, then they must file a monthly communication log.
4:50 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
In regards to the potential loopholes that exist, there was supposed to be a five-year cooling-off period, in which you're not supposed to lobby if you've been a public office-holder.
How do you approach a situation where someone's hired by a company but doesn't directly do the lobbying, but goes about it indirectly? They indirectly achieve what they can't do directly. How would you go about establishing penalties or establish whether or not that conduct is perhaps slipping through the cracks? How do you report on that in your annual report?
4:50 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I understand that one of the points the government intended was that the predesignated public office-holder could not take advantage of anything they might have gained, or personal connections, while in that post and use it for lobbying activities. The act, then, is very specific as to what constitutes communication: the individual must be paid and must be communicating with the public office-holder.
4:50 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
So the way the regulations have been written, this meets the letter of the regulations but doesn't necessarily pass the smell test. Is that what you're saying?
4:50 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
Again, at this point the act has just came in, so I really find it too early to comment further. It's something that Parliament may want to look at when the act comes up for review.
4:50 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Okay, thank you.
There's another potential loophole. For instance, in the finance committee, the opposition members of Parliament have a majority of votes. They can be very influential in minority governments, yet there's no requirement under the definition of public office-holders to disclose lobbying efforts made to committee members on very influential important committees. How do you view that particular situation?
4:50 p.m.
Interim Commissioner of Lobbying, Office of the Commissioner of Lobbying
I'm trying to see if I understand your question fully. If the individual is a designated public office-holder and it's about a financial benefit, which I believe would be the case with most of the issues being discussed by the finance committee, it wouldn't matter whether the lobbyist had arranged the particular meeting or the designated public office-holder. That would have to be reported.
4:50 p.m.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Okay.
My understanding is members of Parliament are not covered under “public office holder”.
4:50 p.m.
Liberal
The Chair Liberal Paul Szabo
It depends on the act. Under the Parliament of Canada Act, and with the Conflict of Interest and Ethics Commissioner, it's true that MPs are not public officers. But for purposes of the Lobbying Act, MPs are considered public office-holders.