Evidence of meeting #22 for Access to Information, Privacy and Ethics in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was register.
A recording is available from Parliament.
Editor and Publisher, ARC Publications
It doesn't matter. If you're there representing the views of the party, then you're perceived as being for the party.
Liberal
Scott Andrews Liberal Avalon, NL
Can we put it in the Lobbying Act that they aren't allowed to do that?
Editor and Publisher, ARC Publications
Again, it comes back to how the commissioner interprets rule 8 under the Conflict of Interest Act. She went down that path before the election. She's been challenged on the notion that if I am a spokesperson for the party in the media, I'm not really a spokesperson; I've just been invited by the media, and I'm not really a representative of the party.
Liberal
Editor and Publisher, ARC Publications
Of course you get paid by the media to do this. You're supposed to.
That's not the problem. The problem isn't that the media pays them; it's the fact that they represent the party and they also lobby. They represent the party on a very public stance. Everyone knows that, and it's used in the marketing material.
Editor and Publisher, ARC Publications
Right.
It seems to me that if you want to be a commentator on political affairs, that's fine. Just don't be a lobbyist.
Liberal
Scott Andrews Liberal Avalon, NL
Ms. Yates, I want to go back. We started talking about broadening the definition of lobbying. In particular, you touched on government relations firms. In my opinion, they don't lobby—and we're talking about DPOHs if they go to a government relations firm. They advise clients on how to do things. It's not really lobbying because they don't make that contact, but there's significant gain for their clients. It sort of crosses over with the conflict of interest rules.
How do we square the circle? Will broadening the definition cut down on that? I'm finding it difficult to find out how to pinpoint that one.
Professor, Department of Social and Public Communication, Université du Québec à Montréal
I'm not sure I understand the question. Do you mean if you broaden the definition, what would be the effect?
Liberal
Scott Andrews Liberal Avalon, NL
Would you catch those people who don't actually lobby but wield more influence? Was that your recommendation?
Professor, Department of Social and Public Communication, Université du Québec à Montréal
I think so. If we look at the American definition, it talks about contacts or direct communication with public office holders. But it also talks about all the efforts in support of preparing for those contacts. Of course, people should be penalized if they do not comply with the legislation. With this expanded definition, the commissioner must also have greater power of sanction. Otherwise, it would be at the whim of the lobbyists to say that they do not establish contacts, but that, in the work that they do, this falls under lobbying because they are developing a potential contact. That would be up to them to declare.
What can be done to make sure that this information is in the registry? Well, that is why the commissioner should have the power of sanction and check if those preparatory activities are actually registered. If that's not the case, she should be able to penalize the offenders.
To be clear, I think that this measure—this expanded definition that works well for the United States—should be applied here as long as the commissioner actually has oversight and greater power of sanction when it comes to enforcing the act.
February 9th, 2012 / 11:50 a.m.
Liberal
Scott Andrews Liberal Avalon, NL
The Conflict of Interest Commissioner.... If a former public officer goes to them and gets cleared from being in a conflict of interest, should the two commissioners work together in any sort of fashion to make sure there's no loophole there?
Professor, Department of Social and Public Communication, Université du Québec à Montréal
That might be something to explore. It sort of goes back to asking ourselves whether public office holders should also register the lobbying activities they are subject to. There might be some cooperation, but I think we have to be careful if we want to require public office holders to disclose lobbying activities as well. That might lead to a significant bureaucratic burden, especially if we also start having rules specifically for public office holders and other people who also have to register the lobbying activities they are subject to.
Liberal
Scott Andrews Liberal Avalon, NL
Thank you very much.
Mr. Conacher, you mentioned loopholes several times and closing these loopholes. I was finding it a little bit difficult to actually pinpoint the loopholes you're talking about. You talked about the 20% rule and then....
First of all, have you read the commissioner's recommendations to us? Are you familiar with all of her recommendations?
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
Yes.
Liberal
Scott Andrews Liberal Avalon, NL
If we enacted all those recommendations from the commissioner, would that close the loopholes you were talking about?
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
No, because you would still have the loophole open that if you're unpaid you can lobby in secret. That's very dangerous, because cabinet ministers leave, they have a healthy pension, or they get some other job, and then friends call them and they make calls for their friends, and they don't charge their friends. That's very influential lobbying. They've just left cabinet, they know all the people, and they have to be careful for a couple of years under the Conflict of Interest Act, but they don't have to register to lobby.
Secondly—
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
I'll just say that if you lobby about the enforcement or administration of a law, regulation, or program, you also don't have to register, and the commissioner has not touched that with her recommendations. You do have to look—in terms of a cooling-off period and these rules—at the Conflict of Interest Act.
We'll be applying to come back to the committee to talk about that. It affects what you just talked about with the other witnesses as well. There is a rule that former public office-holders can never share with a client information they learned while on the job. That rule is not being enforced under the Conflict of Interest Act, and if it were, these people who are being hired to just give advice but not actually do the lobbying would not be doing their jobs. That's why they're hired. They're hired to give that secret information they learned on the job.
NDP
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
Thank you, Madam Chair.
Thank you to the witnesses for being here today.
Our government, since 2006, has tried to address.... I think we've made great strides in trying to provide citizens a more open and transparent government. This exercise today proves we're serious about this and trying to improve the Lobbying Act.
All of you are experts in this field. I'm just wondering if there are any models in other countries you have observed that you feel are good models, or are we leading the way in terms of lobbying?
Mr. Chenier.
Editor and Publisher, ARC Publications
There are so many different ways in which different countries have approached this. The one common feature is that there's always resistance from the lobby community.
I've been watching Europe for the last 10 years, where they have been trying to institute some sort of lobby laws. The lobbying community there is growing like Topsy, especially in Brussels and the European Community.
There is always great resistance.
Similarly, when you pass a law, it's hard to judge the law without judging the application of the law or what the result has been. For example, I could say the law passed in the U.S. by the last Congress—after some terrible scandals—went quite a way. They have fee disclosure and a stronger definition of lobbying and things like that, but still, there's obviously mass avoidance taking place. They have conflict of interest rules as well, but they get around that.
To point to particular legislation, I think you could say the ideal legislation is one thing, but how it's played out or how it's enforced is usually a totally different can of....
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
I'll speak to that.
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
The problem with all the provinces that have implemented the law is that they followed the federal model—this has generally been done around the world—wherein the lobbyist is required to disclose lobbying. Then the problems have always been what the definitions are of lobbyist and lobbying. There are huge loopholes.
The way it always should have been done—and no country has done this—is to reverse the onus and have the people in government and in all the parties, all the staffers, disclosing anyone who communicates to them about their decisions. Then you don't run into all these problems, because it doesn't matter whether the person who is doing the communication is paid or unpaid, or doing it 20% of their time or 100% of their time, or whether it's oral or pre-arranged communication. It doesn't matter: it's any type of communication.
So you could reverse the whole onus—that would help—or close the loopholes. I think you can close all the loopholes without any danger of capturing your constituents who are just contacting you every so often about a policy concern by putting in words like “someone who plays a significant role, paid or unpaid, in an organized effort”. If they communicate with you in any way, then they have to register. Then you'd have a much better system that would essentially end secret, unethical lobbying.
Also, you could put in a couple of other rules specifically for anyone who has been in government, because an individual calling on behalf of a friend is not an organized effort. It's just a casual call, but you definitely want to cover those people because, again, cabinet ministers are very influential when they leave. They usually can get other jobs and they don't need to be paid to do lobbying. If you don't close that loophole, they won't be captured, and you really want to capture them.
