Information & Ethics Committee on Feb. 7th, 2012

[The Chair, NDP, Jean Crowder]

Welcome, everybody, to our continuing statutory review of the Lobbying Act.

Before we begin I want to welcome a number of guests. I won't go through the whole list, but we have the intergovernmental affairs and justice committee from Saskatchewan here. Welcome. They've been given an opportunity to observe our proceedings today, and they're at the back of the room.

I understand that our witnesses are all well aware that they have ten minutes to present. And when you present, please introduce any other members you have brought with you.

Who would like to start? Mr. Wilkinson.

When we go to the question-and-answer period after your presentations, the seven minutes that the members have in the first round includes their question and your response.

Mr. Wilkinson, please proceed.

[Neil Wilkinson, Ethics Commissioner, Lobbyists Act Registrar, Office of the Ethics Commissioner of Alberta]

Thank you very much, Madam Chair and honourable members of the standing committee. It is certainly a pleasure to be here with you this morning.

By way of introduction, I should tell you that under the Alberta Lobbyists Act, I, as Ethics Commissioner, am named as the Lobbyists Act registrar, and the registry is administered in my office. But the act allows me to delegate most of my functions and responsibilities and authority to another person. I have done that, and he is sitting on my left. His name is Brad Odsen, and he is not only our registrar but our general counsel as well.

As de facto registrar, Brad is responsible--and I think this is good for you to know when it comes to question time--for the day-to-day administration of the act and the operation of the registry. He will be able to respond to any questions you may have on our experience with the Alberta legislation and on the lobbying community there.

There are five responsibilities I cannot delegate. One of the most important ones is the granting of exemptions from the contracting prohibition, with our without conditions. What that means is prohibiting lobbyists from being paid to advise and lobby government on the same subject at the same time.

With your permission, I'll start this morning by briefly touching on the public policy imperative of lobbying legislation, because that will help us set the context for our comments.

We start with the question: What public purpose is served by the enactment of lobbying legislation? One answer to that question, as you know, can be found in a paper presented to the OECD symposium on lobbying in 2007 by Professor Paul Pross, of Dalhousie University. He said:

Experience to date suggests that the decision to regulate lobbyists and to introduce regulations that are effective is contingent upon the following underlying factors: Lobby regulation is perceived to address broadly accepted public policy objectives such as enhancing government transparency, openness and integrity. Regulation is compatible with the constitutional framework and political culture of the adopting jurisdiction. It is directed at achieving three principal objectives: promoting transparency in governmental decision making; supporting integrity in the policy process; enhancing the efficacy of policy processes. Regulation of lobbyists is conceived of as part of a body of regulation--a regime--that governs the ethical behaviour of public officials and those they deal with. The viability of the regulations depends on instituting rules of disclosure that can be realistically applied and on ensuring that officials have the powers and administrative autonomy sufficient to enable them to carry out their duties.

There are really two kinds of legislative approaches that could be taken to achieve these objectives. First is a lobbyist monitoring regime that is directed at making publicly available information on who is lobbying what element of government with respect to what broad subject matter on behalf of what interest, and in what ways is lobbying being undertaken?

The second is the lobbyists regulating regime, which includes all the foregoing but additionally is much more focused on the particulars of lobbying activity and on controlling such activities, to a certain extent. It can include timely reporting of who specifically spoke to whom when about what, what type of compensation arrangements for lobbying activities are permissible or not, and what types of lobbying activities are prohibited and in what circumstances.

The Alberta Lobbyists Act is very much within the spirit of a lobby monitoring regime, whereas the federal Lobbying Act is more within the spirit of a lobby regulating regime. This is not to say, members, that we feel that one regime, in any sense, is better than another, but there certainly are implications with respect to the level of activity required by those charged with the administration and enforcement of the legislation, and obviously, therefore, the level of resourcing required by you to achieve your legislative objectives.

Both approaches can be very effective in achieving the public policy outcomes of increasing transparency and promoting ethical behaviour. There are elements of regulation and enforcement in a monitoring regime, just as, of course, there are elements of monitoring in the regulation regime. Indeed, there are more similarities, as a matter of fact, among the various lobbying statutes in Canada. But there are some key differences between the Alberta and the Canadian acts we thought you might be interested in.

Number one, in Alberta lobbying is defined as “communicating with a public office holder in an attempt to influence”, while federally it is defined as “communicating with a public office holder”, in both cases for payment and in both cases with respect to prescribed activities of government.

Alberta does not have a lobbyists code. Alberta does have a contracting prohibition that we talked about earlier. Alberta does not require monthly reporting of meetings of any kind. In Alberta the post-employment cooling-off period for ministers is 12 months, and for elected members and senior government officials it is six months.

There are other differences, but with your permission and in the interest of your time, we will focus the balance of our remarks primarily on three differences that Commissioner Shepherd has highlighted in her presentation to this committee: the time-spent-lobbying threshold; the ability of the registrar to investigate breaches of the act and to impose administrative penalties; the lack of statutory immunity granted to the commissioner and her staff.

As to the first, in Alberta, if the cumulative time spent lobbying by those in an organization is less than 100 hours per year, that organization is not required to register. Now, as it presently stands, the act speaks of time spent communicating and does not include preparation time. One hundred hours is less than 2.5 hours per week, so it's already a very low threshold.

As you may know, the Alberta legislature just conducted a review of the act. In this case, the issue of whether there should be such a threshold--or if there is one, where it should be set--was probably the most debated issue in that review. The end result of that debate was that the committee has recommended that time spent communicating should include preparation time, which would have the effect, of course, of lowering the threshold even further.

Brad can speak more to this issue if you have any questions about that.

We would note that in our experience, once the practical effect of this section of the act has been explained to most organizations the response has simply been that they register, whether they feel they may have attained the threshold or not.

As to the second, while it is true that there has not been an instance when we have imposed an administrative penalty, anecdotal evidence suggests that the very fact that the registrar has this power leads lobbyists to take considerably more care to comply with the technical requirements, such as noting changes within the specified period of time or renewing a registration when the renewal is due. In a broad sense, there could be what might be termed breaches of the spirit and intent of the act, an example of which would be deliberately failing to register in order to conceal the lobbying efforts, and what might be called technical breaches, such as failing to amend a regulation within the required time period.

In our view, having the ability to impose administrative penalties, particularly for technical breaches, does lead to a greater effort on the part of lobbyists to comply.

The federal Lobbying Act--or its predecessor legislation--has been in effect since 1985, as you know. It's not something new to the lobbyist community. The Alberta act, on the other hand, was only proclaimed in September 2009. The approach of our office in these two years has been one of education and of encouragement, rather than enforcing compliance. There has now been sufficient time for the lobbying community to become familiar with the act and its requirements. After giving due notice to the lobbying community, we will start implementing stricter enforcement of these technical requirements, and in all likelihood using a model similar to what Commissioner Denham and her team in B.C. have devised as a template.

With respect to the third, as Commissioner Shepherd has noted in her recommendation number 9, Alberta and all other jurisdictions in Canada do have an immunity provision in their acts. We can assure you that this provision provides us considerable comfort in our administration and enforcement of the Alberta Lobbyists Act. Frankly, we cannot conceive, with respect, any valid reason to deny immunity to an officer of Parliament. That very lack could well, in our view, have the effect of constraining the ability of the commissioner to properly fulfill the statutory requirements of the act.

In conclusion, we are pleased to have been here to make a brief presentation. We hope we can help further. This is really a very important piece of legislation, as you know. Professor Pross noted as well that it's part of a regime that governs the ethical behaviour of public officials and those who deal with them.

[The Chair, NDP, Jean Crowder]

Thank you very much, Mr. Wilkinson.

I'll go to Ms. Morrison for ten minutes.

[Lynn Morrison, Integrity Commissioner, Office of the Integrity Commissioner of Ontario]

Good morning, Madam Chair and honourable committee members. Thank you for asking me to appear before you today to provide some information about the Lobbyists Registration Office in Ontario.

I believe you've all been provided a chart that outlines the main provisions in our act, the Ontario Lobbyists Registration Act, which was passed in 1998.

I am the lobbyist registrar as well as the Integrity Commissioner of Ontario. My office is responsible for the following mandates: lobbyist registration; members' integrity, including conflict of interest rules; public service disclosure of wrongdoing, otherwise known as whistle-blowing; ministers' staff ethical conduct; and expenses review for ministers, opposition leaders and their staff, and certain agency employees and appointees.

My office has discharged its duties under the Lobbyists Registration Act with two principles at heart: (1) lobbying is legitimate, necessary, and part of democracy; and (2) transparency is a key goal, as the public has a right to know who is seeking to influence government decision-making.

At the time it was introduced, Ontario was the first province to have a lobbying act. It was, in fact, modelled on the federal legislation that preceded the current framework.

There are differences between the Ontario and federal systems, and between Ontario and its provincial counterparts. In Ontario, the definition of “lobby” is “any communication with a public office holder in an attempt to influence government activities”. For consultant lobbyists, lobbying includes arranging meetings.

A person must register if he or she is paid to lobby a public office holder. The requirement that you be paid captures both in-house lobbyists—or essentially, employees who are paid to lobby—and consultant lobbyists who work for firms, including law firms, on behalf of other organizations or individuals.

In addition, the act mandates our office to maintain an online public record of lobbyists. Not unlike the federal legislation, there is a long list of information that lobbyists must disclose in their registration. For example, they must provide the name of their client or employer, as the case may be; the subject matter of the lobbying effort; to whom the lobbying is directed; the method of lobbying; whether the entity is being funded by any government; and consultant lobbyists must state if they are being paid contingency fees.

As registrar, my duties are to maintain the registry, to verify information submitted, and to make that information available for the public.

In my view, the most important part of the registration process is ensuring that a member of the public can understand what it is that the lobbyist is doing. I often ask for further information about this aspect of the registration process. I've found lobbyists in Ontario have been cooperative in this area, and I will continue to require this level of detail in the future.

There is no code of conduct for lobbyists in Ontario; however, lobbyists are guilty of an offence if they fail to comply with the act or knowingly place a public office holder in a position of real or potential conflict of interest, and they are subject to a penalty of up to $25,000. I believe this is an important rule to have and enforce, though I will say that our approach in Ontario has focused primarily on the requirement of lobbyists to register and not on their specific conduct as lobbyists.

I do not have any investigative or inquiry powers about the conduct of lobbyists or unregistered lobbying. This is obviously a major distinction between the Ontario and federal models. As I just indicated, it is an offence to contravene the Ontario act and there are serious penalties, but to date there have been no prosecutions in this regard.

If necessary, I am prepared to refer information regarding possible offences to the appropriate authorities, leading to a prosecution. However, we do enjoy a high level of cooperation, and it has been my experience that when alleged lobbyists are informed about the registration requirement, they quickly come into compliance, if necessary.

The act also allows me to issue non-binding advisory opinions and interpretation bulletins about the act, which assist lobbyists in better understanding the legislation. Our office recently issued revised interpretation bulletins and has received positive feedback, all confirming my belief that education is key to ensuring the rules are followed. Our office also has a unique ability to encourage compliance through our other mandates, namely the ethical conduct and responsibilities of elected officials, including ministers as well as ministerial staff.

For example, we provide advice to minister's staff who are thinking of leaving their current position. We advise them of their obligations under the Public Service of Ontario Act, including but not limited to the restriction from lobbying their former ministry for a period of one year. We also ensure they are aware of the Lobbyists Registration Act and its obligations.

I would also like to speak to a new amendment to our act, the Broader Public Sector Accountability Act. It came into force last year and introduced new rules prohibiting certain public sector organizations from using public funds to hire external or consultant lobbyists. The restriction applies to public bodies, hydro entities, and larger and broader public sector organizations such as hospitals, school boards, and universities, as well as publicly funded organizations that receive more than $10 million in provincial funding. It is a new rule that we have been administering since early 2011. Consultant lobbyists can be hired by the above-mentioned organizations if the head of the organization signs and files with our office an attestation stating that the lobbyist is not being paid with public funds.

Apart from this change, there have been no material amendments to the act since it came into force in 1999. I do believe it is time to review and update our legislation, and I've requested that such a review take place. It is time for Ontario to consider such issues as whether the registrar should have investigative powers or whether the current threshold for a significant part of duties should be amended.

If a registrar has the ability to initiate investigations, it stands to reason that he or she should also be able to administer penalties. I can't speak from experience, of course, but I would imagine that both monetary penalties and the ability to name individuals who are found to be in non-compliance would be effective methods of encouraging compliance with the legislation. I also believe that if a registrar has the ability to administer penalties, he or she should have discretion on when and how they are used.

I know that Commissioner Shepherd has recommended the removal of the “significant part of duties” component for in-house lobbyists, and I agree that moving in this direction is the right approach. The best way to ensure transparency about who is lobbying is to require registration for all lobbying activity. However, as lobbyist registrars, it is our responsibility to make sure that registering is easy and accessible.

I am very mindful of the best practices emerging in other jurisdictions: in particular, we benefit greatly from the work that our federal colleagues have undertaken and the court challenges they have endured.

I believe the most important thing that a lobbyists registration system should do is provide a way for the public to know and understand who is influencing government in a way that makes it relatively easy for a lobbyist to comply with the rules. This balance can be difficult to find, but I strive to achieve it in Ontario.

Thank you once again for giving me this opportunity to speak to you today. I hope my remarks have been of assistance, and I welcome your questions.

[The Chair, NDP, Jean Crowder]

Thank you, Ms. Morrison.

Mr. Casgrain, for ten minutes.

[François Casgrain, Lobbyists Commissioner, Quebec Lobbyists Commissioner]

Madam Chair and members of the committee…

it's a great pleasure for me to be here today as part of the statutory review of the Lobbying Act. I want to share with you the Quebec experience with regard to the application of the Quebec Lobbying Transparency and Ethics Act.

Why have a lobbying act? The public's confidence in their public institutions is a major consideration in the practice of a healthy democracy and of good governance. Preserving that confidence was a major objective of the National Assembly in June 2002 when it unanimously enacted the Lobbying Transparency and Ethics Act.

Quebec's Lobbying Transparency and Ethics Act and the Canadian Lobbying Act have a number of features in common. However, there are certain notable differences.

The Quebec act defines the activity of lobbying as any oral or written communication in an attempt to influence a decision, while the Canadian act covers any communication with a public office holder.

The Quebec act covers a number of decisions that are not covered by the Canadian act, namely, the issue of certain authorizations, the appointment of members and administrators of government agencies and enterprises, as well as the appointment of senior officials such as deputy ministers and secretaries general of the Conseil executive and the Conseil du trésor.

In addition, the Québec act applies not only to parliamentary and governmental institutions, but also to all municipal and para-municipal institutions. It distinguishes between lobbyists on behalf of the profit-seeking enterprise and lobbyists on behalf of a non-profit organization. It does not require lobbyists to file monthly returns stating what communications they may have had with designated public office holders, as the Canadian act does. However, it provides that the registration must be updated as soon as a change occurs and must also be renewed every year.

The act provides that a lobbyist may request that the commissioner order that some or all of the information in a return be kept confidential when certain strict conditions are met. It assigns responsibility to the personal and movable real rights registrar who reports to the minister of justice, and not the commissioner, for keeping the registry of lobbyists. It provides that the commissioner may issue and publish notices concerning the carrying out, interpretation or application not only of the act, but also of a regulation thereunder or the Lobbyists' Code of Conduct.

The act also provides for the commissioner to adopt a code of conduct for lobbyists. Breach of the code is subject to sanctions and penalties.

Prohibitions on designated former public office holders engaging in lobbying may range from one year to two years according to the office formerly held. However, certain post-mandate rules apply to all former public office holders with no time limit.

The commissioner has the authority to carry out inspections, monitoring, audits and inquiries. For the purposes of his inquiries, the commissioner and any person he specially authorizes to conduct inquiries have the powers and immunity conferred on commissioners appointed under the Act respecting public inquiry commissions, except the power to order imprisonment. The commissioner therefore conducts his inquiries himself without transferring the case to a police service.

The act provides for three types of sanctions and penalties for breaches of the act or the code: penal sanctions; claiming compensation received by the lobbyist; and disciplinary measures that may be imposed by the commissioner if he ascertains a lobbyist has gravely or repeatedly breached the act or the code.

I would now like to share with you my thoughts on some issues that I think are important for attaining the act's transparency objectives and for ensuring that the act and the Lobbyists' Code of Conduct are respected.

The first point is the concept of significant part. Whereas consultant lobbyists are subject to the provisions of the act when they lobby on behalf of another person, enterprise lobbyists and organization lobbyists are subject to the act only when their job or their duties involve engaging in lobbying activities for a significant part of their time.

Determining what is a significant part means that when an enterprise or organization intends to instruct an internal person to lobby, it must ascertain whether communications for the purpose of influencing will be engaged in, based on the criteria of the notice issued by the commissioner.

This exercise is a complicated gymnastic feat for enterprises and organizations and for public office holders.

The concept of "significant part" may also result in problems of fairness and consistency.

[The Chair, NDP, Jean Crowder]

Excuse me, Mr. Casgrain. Could you please slow down a little for our interpreters?

Thank you.

[François Casgrain]

Yes.

If an enterprise organization retains a consultant lobbyist to lobby on its behalf, the consultant lobbyist must register in the registry of lobbyists. If the same enterprise organization instead instructs one of its employees to do the same lobbying, the most senior officer must register the purpose of those activities only if they represent a significant part of the activities.

In addition, proof that certain lobbying comprised "a significant part" is often difficult to establish. The city of Toronto has solved this problem by not making this kind of distinction. The communication for the purpose of influencing is a communication covered by the municipal code. Given the public's right to know who was attempting to influence decisions made by public institutions, it is important that all lobbying be reported, not just lobbying that comprises a significant part.

It is crucial that the act be easy to apply. On that point, it should be easy to identify the lobbyists covered, by answering a very simple question. Is the purpose of the communications for the purpose of influencing made by a person to a public office holder to influence the decision covered by the act? If so, the person should be registered in the registry.

Let's talk now about the role of public office holders. Lobbying involves two actors: one who is seeking to influence and one whom it is sought to influence. In other words, a lobbyist and a public office holder. That relationship must be transparent, and accordingly must be registered in the registry of lobbyists. That is what the act clearly requires. A person who seeks to influence has an obligation to register. However, that does not mean that the public office holder has no role to play. On the contrary: they have the role of ensuring that the people who seek to influence them comply with their obligation to register. Accordingly, the responsibility for ensuring transparency is not the exclusive prerogative of the lobbyists commissioner. The best way to ensure the effective application of the act is undoubtedly for public office holders to play their role fully.

Let's look now at the power to impose administrative penalties. Lobbyists commit numerous minor offences under the act. In general, these offences go unpunished since the people who commit them do not always deserve the stain on their reputations that might result from penalties or disciplinary measures. It is nonetheless important for consequences to be possible when there are breaches of the rules laid down in the act or the code. For that reason the lobbyists commissioner should have the power to impose administrative penalties, which might encourage respect of the act and the code.

Take the case of the consultant lobbyist who regularly registers in the registry after the time allowed by the act, sometimes even after the decision of the public office holder has been made. By doing that, they circumvent the public's right to know who is attempting to influence decisions made by their public institutions. Because the decision has already been made, the public is presented with what amounts to a fait accompli, and there is nothing at all that it can do in time.

Lastly, I want to talk about the ability of the commissioner to initiate prosecutions. While we must recognize that the efforts made to enforce the act must not be limited to prosecutions alone, we must nonetheless acknowledge that prosecutions are sometimes the only available option when a lobbyist stubbornly refuses to comply with their obligations. Accordingly, prosecutions can play an important role in enforcing the act and the code. While the lobbyists commissioner may conduct inquiries where he believes on reasonable grounds that there has been a breach of a provision of the act or the code, the act does not authorize him to initiate prosecutions personally.

The legal framework governing lobbying is a relatively new and specialized area of the law. The lobbyists commissioner is the only entity who has been empowered to publish notices concerning the carrying out, interpretation or application of the act or the code. It is up to the commissioner to inquire and determine whether there has been a breach of the act or the code, having regard to the facts brought to his attention. Therefore, as a result of his knowledge and expertise in the act and the code, the lobbyists commissioner is best suited to evaluate the relevance of initiating prosecutions and submitting the cases to the tribunal.

Madam Chair and committee members…

thank you for giving me the opportunity to share these observations with you. I remain at your disposal to answer your questions.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Casgrain.

We'll now go to Ms. Denham for ten minutes.

[Elizabeth Denham, Registrar of Lobbyists for British Columbia, Office of the Information and Privacy Commissioner of British Columbia]

Good morning, Madam Chair and members of the committee.

I'm very pleased to appear before this committee once again. I appeared as recently as two years ago in my former capacity as Assistant Privacy Commissioner of Canada. Now in B.C. I have two new roles, and I appear before you today as Registrar of Lobbyists for British Columbia. I am also the Information and Privacy Commissioner for British Columbia.

With me today is Jay Fedorak, who is acting deputy registrar.

I've also provided a more detailed written submission for consideration by the committee.

I can summarize the theme of my presentation in two statements. First, lobbyists play an important role in promoting fair and effective public decision-making by ensuring that public office holders have a full range of information, evidence, and opinions necessary to make decisions in the public interest.

Second, while it's essential that all interests receive the opportunity to be heard, it's critical to minimize opportunities for any particular party to exert undue influence in the ultimate decision.

Every day in this country lobbyists are communicating with public office holders to persuade them to support what I'm sure we can all agree are good causes. Non-profit organizations lobby for increased support for disadvantaged members of the community. Canadian businesses lobby for funding and regulatory changes that benefit the Canadian economy and Canadian workers.

In British Columbia we see organizations like the David Suzuki Foundation lobbying the Office of the Premier, as well as the majority of the ministers and members of the Legislative Assembly, to address climate change, promote clean energy and sustainable fishing, and protect the oceans. Vancouver Shipyards is lobbying the Office of the Premier and many members of the Legislative Assembly, looking to assist the provincial government with employment training programs to ready candidates for employment in the marine industry. The Greater Victoria Chamber of Commerce is lobbying the Office of the Premier and most ministers, seeking support for the Victoria International Airport runway extension, which it suggests will add another $37 million to the local economy annually.

The different jurisdictions across Canada are fortunate to have safeguards in place to minimize the exercise of undue influence. Public registration of lobbying makes lobbying activities transparent through mandatory declarations. Laws that contain a mandatory code of conduct promote integrity in public decision-making. Together, registration and codes of conduct help to ensure that citizens and organizations influence public decisions in a visible and ethical manner.

But there's more that can be done. My submission to the committee outlines three recommendations to improve safeguards and promote legitimate lobbying.

My first recommendation is that the Commissioner of Lobbying be given the power to assess administrative penalties. Today the only enforcement mechanisms available to the commissioner are to report to the police on violations of the Lobbying Act, and to report to Parliament on violations of the Lobbying Act code of conduct. The only other option available to the commissioner is to try to educate the lobbyist violating the act.

The Lobbying Act is an administrative law statute. Violations are administrative in nature, and very few will likely be serious enough to warrant police investigations or prosecutions. On the other hand, many violations are serious enough to warrant more than a warning or a stern educational session.

As regulators under administrative law it's important that we have the power to issue penalties proportional to the offence. In the immortal words of Gilbert and Sullivan's The Mikado, the object in administering justice should be to let the punishment fit the crime.

In British Columbia, the Registrar of Lobbyists can investigate matters of non-compliance and issue an administrative penalty of up to $25,000. The purpose of such a penalty is to promote future compliance with the party in question.

We may also publish investigation reports, which are intended to promote compliance of others by example. Once lobbyists became aware that we had the authority to issue administrative penalties, they took their registration responsibilities much more seriously. In fact, registrations have increased significantly since we received our new powers in 2010.

In April 2010 the registry had 303 active registrations. As of January 1, 2012, it had increased to 507. That's a 70% increase once we had administrative penalties and investigative powers. If the federal commissioner were to obtain the authority to issue administrative penalties, I'm confident that the federal regulatory regime would see similar results.

My second suggestion is that rule 8 of the Lobbying Act be amended to address some of the concerns raised. I hope that the concerns don't obscure the important role that the code of conduct plays. While registration establishes transparency about key aspects of any lobbying activity, public office targets, the subject matter, the intended outcome of the lobbying, client information, and whether the client or employer is receiving any government funding, it does not provide transparency about the nature and the content of the communications between the lobbyist and the public office holder. Fortunately, the code governs the nature of the relationship between public office holders, which helps to further minimize opportunities for the exercise of undue influence.

In the absence of a code of conduct, as is the case in British Columbia, there's nothing prohibiting lobbyists from receiving and using confidential insider information, attempting to influence by providing gifts or other benefits, or pursuing an outcome in a way that would put a public office holder in a potential conflict of interest situation.

A strong code of conduct is absolutely vital to a clear and transparent program of lobbying.

I want to focus for a moment on rule 8 of the federal code, which forbids a lobbyist from placing public office holders in a conflict of interest. There were concerns expressed about restrictions on lobbyists who have assisted public office holders on election campaigns, for example.

One modest improvement is to require all lobbyists to declare on their registration whether or not they have engaged in political activity on behalf of the person they are lobbying, and in what capacity. This would, at minimum, provide some transparency to the public about the nature of the relationship between the lobbyist and the elected official.

My third suggestion relates to the five-year prohibition on designated public office holders from lobbying.

It's easy to see the problems with former public office holders who engage as consultants to lobby their former colleagues. I don't have to make mention of some high-profile cases we've seen that bring this problem to light. Originally there was a three-year prohibition established to prevent cases of undue influence. That ban was extended to five years in the absence of other necessary safeguards.

While the ban does help to limit undue influence, I respectfully suggest that there are other considerations at play that deserve our attention.

One of the goals of lobbyist regulation is to promote fair and effective lobbying. There are many businesses and not-for-profit organizations that have legitimate concerns and interests to communicate with public office holders. There is no question that former public office holders can be effective lobbyists. Access to talented lobbying professionals helps organizations obtain fair access. A five-year ban limits the size of this talent pool. Moreover, the length of the ban might also reinforce unfair stereotyping of lobbyists and public office holders.

The key for a healthy lobbying community and regulation system is to achieve the right balance. It's my recommendation that if the Lobbying Act is amended to incorporate appropriate administrative penalties, and the current code is maintained and strengthened, the committee might consider recommending a shorter ban or prohibition. I believe this would strike the right balance between promoting fair and effective lobbying while protecting against undue influence.

Madam Chair, this concludes my presentation. Thank you again for the opportunity to speak. I would be pleased to answer any questions.

[The Chair, NDP, Jean Crowder]

Great. Thank you very much to the witnesses for staying within the timeframe.

Before we go to the round, I want to welcome Monsieur Morin as a new committee member. Welcome to the committee.

We have two substitutes today. Mr. John Weston and Mr. Rodney Weston, welcome to the committee.

Members, because of the timeframe, if you wish to direct a question to a particular witness, I'd ask you to do that.

We'll start with Mr. Angus for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

This has been very interesting. Having a sense of the varied experience across Canada is certainly going to help us in our work.

Ms. Denham, I would like to start with you, in terms of the three recommendations you made. The issue of administrative monetary penalties has come up again and again, not just under the Lobbying Act but in a whole manner of issues where we have commissioners playing roles and trying to make sure people follow the rules.

We're always talking about the lobbyists who play by the rules, who do all the hard work, and who have expressed concern about their reputations being impinged upon by any investigation. But there are others for whom it's not in their interests to play by the rules.

We're in a situation, for example, with Bruce Carson, who was looking at a $250-million contract where he was going to get 10%. For $25 million, there was no incentive for this guy to play by the rules. The only thing the lobbying commissioner could do was tell him to write an essay. Well, I had to write essays for Sister Frances Margaret, in grade six, for not paying attention. I faced the same penalty he did when he was potentially looking at a $25-million payout.

How essential is it to have administrative monetary penalties, not just for the bad guys, but to ensure that everybody smartens up and follows the rules?

[Elizabeth Denham]

I think it's very important to have administrative penalties. It's also important that the investigation and administration of penalties stay within the commissioner's jurisdiction. As soon as she's required to pass on a file to another body, such as the RCMP, that file will be subject to that body's rules and priorities. Again, I think there are very few infractions that the RCMP is going to have to concentrate on and investigate and decide to prosecute.

The 70% increase that we saw in British Columbia when our investigative powers and administrative penalties were granted is evidence that lobbyists were taking their responsibilities seriously.

It's been a year since we were given these new powers. We haven't issued any administrative penalties yet, but we have 16 active investigations under way. In the coming weeks you will see some findings. I think these kinds of infractions are better dealt with in-house and with administrative penalties.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I was fascinated when you talked about all these lobbyists coming out of the woodwork to get their names on the register once they knew they were going to get fined if they didn't.

We've had a very stagnant lobbying pool. Apparently, lobbying never changes here. Nobody ever seems to be added to the list; it's the same old crew.

It would seem from the B.C. experience that there's no incentive for the guys who are flying under the radar to play by the rules. From what I hear from you on administrative monetary penalties, it's not necessarily that they're going to get caught, but they're going to start to smarten up and make sure they follow the same rules the legitimate lobbyists play by.

Is that your experience with the administrative monetary penalty?

[Elizabeth Denham]

We don't have absolute evidence that the 70% increase is completely due to the existence of the power to issue penalties. We have also conducted extensive education. We've had a conference. We have newsletters. We have really tried to improve education and outreach and knowledge of the law. But I think it certainly helps when there are penalties and there's an outcome if somebody fails to register.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I want to continue with you on the issue of keeping it in-house. Our situation is that if the lobbying commissioner finds that someone has done something wrong, they have to suspend that investigation immediately and turn it over to the RCMP. We've had zero follow-up from the RCMP. This is not to suggest that the RCMP aren’t doing their job, but they have a whole different set of codes they work by and we've never had any follow-up.

Again, in the absence of administrative monetary penalties, it does seem to be a get-out-of-jail card. Do you think it's more effective for the lobbying commissioner to be able to carry out an investigation, do the work based on the principles of the parliamentary system, and then administer the penalty and issue the report?

[Elizabeth Denham]

I think the question is whether the breach of the Lobbying Act is a criminal infraction. It's perhaps too heavy a hammer to use to prosecute someone who's failed to register three times in a row. I'm suggesting that keeping the issuing of penalties and the investigations in-house is a sensible approach to regulating lobbying activities.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Your recommendation number two is on the code of conduct and the need to have a code of conduct so that everybody knows what the rules are, and then the role of lobbyists playing political roles. You suggest that in their code of conduct they have to state if they're active politically, if they're putting up signs on election day, or if they're doing something for a particular party or a particular candidate. That way, the public will have a better sense of whether there's a potential intermarriage of interests that may not be in the public interest.

[Elizabeth Denham]

I'm suggesting that it's a modest fix to require lobbyists to register their political activities in support of an elected official. I realize that there is an array of activities—putting a sign on your lawn, attending a fundraising, sponsoring a fundraising dinner. I also know that maybe the timelines of reporting and lobbying aren't going to solve the problem, but I'm suggesting that it's in the spirit of transparency to have such a requirement.

[Charlie Angus, NDP, Timmins—James Bay, ON]

We had a situation with Minister Raitt, who was brought up before the ethics commission because the lobbyists for the cement industry were doing fundraisers for her. If they had declared that up front, do you think that might have spared Ms. Raitt some embarrassment and that we would have had a clearer and more transparent understanding of why you don't want to have cement-mixer guys doing fundraisers for someone who's dealing with such a big portfolio?

[Elizabeth Denham]

I can't speak to that; I don't know the details.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

[The Chair, NDP, Jean Crowder]

Your time's up, Mr. Angus. Thank you.

Mr. Del Mastro, for seven minutes.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much, Madam Chairman.

You hear some talk about the cooling-off period and the five-year restriction placed on it. I find it a bit ironic that there's a five-year cooling-off period on parliamentarians going to government relations firms under the current legislation but nothing prohibiting lobbyists from running for leadership of political parties, like Mr. Topp or others running in the NDP leadership campaign. Certainly they would be beholden to those interests when they come in. It's interesting.

Just a bit for thought there, Chair. I'm doing some name dropping.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I must have got you on the elbow there, eh, Dean?