Specifically, we have five recommendations.
The first recommendation is that the commissioner's duty to educate public office holders should be more comprehensive. Several times it's become clear that various departments are unclear about their obligations under the Lobbying Act or about important details or definitions within the act. We recommend that OCL should have the explicit mandate to step in and request clarifications and to recommend corrective action where it's clear that a government department is offside with the spirit of the act, the same way that other officers of Parliament do.
Our second recommendation pertains to what's called the “officer responsible for filing returns”. Today the president or CEO of an organization is responsible for filing the initial registration and then all reports of meetings with public office holders. The CEO's name is the only one that appears on the monthly report, even if the CEO wasn't actually in the meeting. We're recommending that in the interest of increased transparency, the names of all lobbyists who actually participate in a meeting be listed on the monthly report—noting that there may be cases where a limited set of exemptions might be in the public interest.
Third, we're recommending that the restrictions on lobbying set out in subsection 10.11(1) of the act—this is what's called the “20% rule”—be revised, but only as they apply to former designated public office holders. There have been instances where the 20% rule has been treated as a loophole rather than a guideline. Our submission, respectfully, is that the rules should apply equally to everyone.
I want to stress that this would not impact citizens or small groups or small businesses who have cause to contact the government or their MP once or twice a year. We would limit the closing of that 20% rule specifically to former designated public office holders.
Our fourth recommendation pertains to the definitions of “oral” and “arranged” communications that are set out in the lobbyist regulations. We think those need to be clarified.
Oral communications is pretty clear: anything that's not written. There's never, however, been a formal definition of the difference between an “arranged” and an “unarranged” communication. We sought clarity on what OCL considers a reportable communication, and we were actually advised that lobbyists should be reporting “unplanned but arranged communications”.
That means that the best advice we have received from the Office of the Commissioner of Lobbying of Canada is that we should report all unplanned but arranged communications. Quite obviously, more clarification is needed around that.
However, we do not support OCL's recommendation that the solution to this is to simply erase the word “arranged” and require all oral communications to be reported. The result would be that lobbyists and designated public office holders, including members of Parliament, would have to record and report every conversation they have with each other, whether in your office or in an airport or on the street. As designated public office holders, you already have the requirement to make a record of all reportable communications and to make those records available to the commissioner, on request, to verify the reports that lobbyists file.
So if you get rid of that word, “arranged”, you would either have to make a record of all conversations you have with anyone about the government—on the offhand chance that person was a lobbyist and reported the meeting and you were then asked to verify it—or, alternatively, you would have to ask everyone you talked to about the government whether they were a registered lobbyist. That would apply in your ridings, apply while travelling, and apply while campaigning so that you know whether you need to keep a record of that conversation. Simply put, that recommendation would micro-regulate the normal interaction between MPs and the people they represent, and should not be supported by this committee.
The underlying problem here is one of definition. What does the act mean by “arranged communications”? Rather than just erasing the troublesome words, as OCL recommends, we submit that this is something that could be solved through a straightforward consultation process run by the Governor in Council to establish a clear definition.
Our fifth recommendation is associated with rule 8 of the lobbyists' code of conduct. We believe this should be removed as written, and harmonized with the existing language found in the Conflict of Interest Act and the public service post-employment rules. There have been cases where a lobbyist has been found guilty of putting a minister in a conflict of interest after the minister has been cleared by the Ethics Commissioner of ever having been in a conflict of interest in the first place. We're saying the test for determining whether a lobbyist has put a public officer holder in a conflict of interest should be the same as the test for whether that public officer holder was in a conflict of interest in the first place. It would simply be a matter of aligning the language in the acts.
In our written submission, we explain each of these recommendations in detail. We also flag some other areas that we recommend you take a look at.