Information & Ethics Committee on Feb. 14th, 2012

[Jack Hughes]

Thank you, Madam Chair.

As the member may know, the CBA issued an opinion on rule 8. Neither Mr. Giorno nor I contributed to that opinion.

One of the issues clearly is the interpretation of the Lobbyists' Code of Conduct. And one of the recommendations we have in our brief is that if the committee and Parliament ultimately decide to empower the commissioner to issue administrative monetary penalties for contraventions of the code, there should either be a concurrent or a consecutive review of the code itself to enhance it. As Mr. Giorno said in his presentation, we believe that the code should in fact be enshrined in the act itself under those circumstances. The CBA position is that under those circumstances it's time to look at the code and see what could be done to help clarify it, so that those who are following it and who are required to follow it have a clearer and better understanding of what their obligations are, and also for the commissioner's benefit, to facilitate the administration of justice.

Madam Chair, I will just add to a point on Mr. Martin's question. Contingency fees are currently prohibited by the Lobbying Act. That, again, would be a type of conduct that is currently prohibited under the act as well.

[Dean Del Mastro, Conservative, Peterborough, ON]

And enforceable by the RCMP.

[Jack Hughes]

Yes, and enforceable.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much.

One of the recommendations that you seem to make, again in the interest of transparency, is that everyone should register, and a list of who attends should in fact be reported. This, I think, strikes to the heart of transparency. But we've heard concerns raised by the NDP. In fact, Mr. Angus, at a previous meeting, specifically talked about this. He said:

There are people who come to me because they have to give me information, because they're concerned about what's happening. There's secrecy [and there are] privacy rights.

Is there room for secrecy within the Lobbying Act? It would seem to me that if you're seeking to be transparent, this is exactly what we're speaking about. Transparency should apply to everyone, all parties, and everyone, frankly, who operates under the auspices of this act. Would you agree?

[Jack Hughes]

Thank you, Madam Chair, for that question.

I think that, again, what types of communications are covered by the act, what is considered lobbying or registrable lobbying within the confines of the act, may help assist that question. If an individual were to go to their member of Parliament with a concern about a particular issue, if it didn't fall within one of the established categories of communication for which registration and, potentially, reporting is required, then that may not be captured. But certainly the CBA position as a whole is that the greater the accountability and the greater the transparency, the easier the administration of justice and the more confidence there would be in the system as a whole.

[Dean Del Mastro, Conservative, Peterborough, ON]

I'm interested in the recommendation in your report of moving, specifically, the five-year ban for former public office holders from the Lobbying Act to the Conflict of Interest Act. I have that in your submission.

[Guy Giorno]

That's an older version.

[Dean Del Mastro, Conservative, Peterborough, ON]

Is it? So I have version 1.0. Okay, no problem.

[Guy Giorno]

The current recommendation is to move it from one to the other but not to specify which one.

[Dean Del Mastro, Conservative, Peterborough, ON]

Okay. It's interesting. We haven't actually heard that specifically recommended one way or the other, only that it's confusing the way it operates right now.

Obviously, that's in trying to make it flow better. Again, we're trying to define this line so that people are aware of what the rules are so that they're not crossing into territory that could potentially get them into trouble. Is that why the recommendation exists?

[Jack Hughes]

Thank you, Madam Chair.

Absolutely, that's correct. There have certainly been circumstances where a former public office holder is contemplating potential conduct or activities or employment after they leave office and have to actually consult with both the Commissioner of Lobbying and the Conflict of Interest and Ethics Commissioner. It is not impossible. Again, the restrictions are different in the respective pieces of legislation. They may get different advice or slightly different advice, or even at times potentially conflicting advice. From a CBA perspective, we just think it would assist the administration of justice and it would help clarify the obligations on former public office holders if all post-employment restrictions were centralized, harmonized, and under the purview of a single authority, although, as we say, we think Parliament is in a better position to determine which authority that should be.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you.

Mr. Hudon, I'd invite you to take the opportunity to respond to any of the questions I may have asked. In addition to that, it seems that you've done some international study as well. In your opinion, how is Canada doing as compared to other comparable countries with respect to transparency in this regard?

[Prof. Raymond Hudon]

In fact, we must note from the beginning that there are two countries where there is legislation on lobbying, where, with very few exceptions...Vietnam and so on. There are very few exceptions—in Germany. Many countries have simply....

Several countries have simply abandoned the idea of passing legislation on this issue. I believe Scotland is an example. In fact, I make reference to that in my brief. I met with some people from the Standards Committee of the Scottish Parliament in 2000. They wanted extremely strict legislation. They did not want to see any repetition of the Westminster scandals. All parties agreed on that.

A bill was tabled in 2002 that was insignificant, to put it one way, with all due respect for Scottish parliamentarians. It did not mean anything. The bill was never passed, so in fact there is nothing. The same thing happened recently in the United Kingdom.

It is extremely difficult. One must be aware of the fact that what we are discussing today is extremely sensitive. Making representations to public office holders is a foundation of democracy. Transparency is as well. We must demand transparency, but such a thing is more recent in our cultures.

[The Chair, NDP, Jean Crowder]

Excuse me, Monsieur, we're well over time. Do you have a concluding statement? Thank you very much.

Thank you, Mr. Del Mastro.

Mr. Andrews, you have seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Madam Chair.

Welcome, guests.

I have three areas I'd like to cover in my round of questioning. My first area was covered under the five-year ban, but I want to ask you a question. I think your recommendation about having those two things come under a single authority is very interesting. You don't seem to want to comment on which one is better than the other. We've heard there should be a sliding scale of office holders and all that. I'm just curious why you wouldn't want to give us some direction on one that's better than the other.

[Guy Giorno]

The short answer is, the working group couldn't come to a consensus because they are actually different arguments. The argument for consolidating under the Conflict of Interest Act and the Conflict of Interest and Ethics Commissioner is that she and that statute are responsible for most post-employment restrictions. The argument for consolidating under the Lobbying Act and the jurisdictional lobbying commissioner is that the act and she and her office have specialized expertise in determining what lobbying is.

In addition, the group of designated public office holders is not the same as the group reporting public office holders. It's only the lobbying commissioner, her staff, and the act that deal with members of Parliament as designated public office holders. Mary Dawson, the Conflict of Interest and Ethics Commissioner, doesn't deal with MPs as reporting public office holders under the Conflict of Interest Act. So there are arguments for consolidation under both, and that's why we didn't settle on one or the other.

[Scott Andrews, Liberal, Avalon, NL]

Okay, because it does overlap. I made the argument between government relations firms and lobbying firms: one will go conflict of interest and one will go to the lobbying commissioner. So I think your recommendation is very good, and I think we should pursue that.

The second question I had, Mr. Giorno, is about your experience with the RCMP. You're right, they have never prosecuted any.... Can you give us a little bit more insight into this? Do you think the problem is with resources with the RCMP, or could it be with their knowledge of the act? Is there something there that we should dive into with the RCMP?

[Guy Giorno]

I don't know. Certainly, this is something the committee is well placed to do. In fact, the committee can call them before it and talk about that. That may be something you may wish to pursue. All I know is what happened. There seemed to be a clear-cut case, and he was investigated. As far as I know—given that the commissioner in her report talked about her process—when she gets them back from the RCMP with nothing done, she then opens her own process. As far as I know, that file is still open with her.

[Scott Andrews, Liberal, Avalon, NL]

Okay. What kind of questions would you ask the RCMP? Give us some direction. If we called them to come before us, what kind of line of questioning should we take with the RCMP?

[Guy Giorno]

You might ask about their resources and their training. Certainly, this brings into play the advice they receive from prosecutors, and the standard applied by prosecutors, which I believe is a reasonable prospect, a substantial likelihood of conviction. Those are areas that committee members may wish to probe. Obviously, something is happening, because nothing is happening.

[Scott Andrews, Liberal, Avalon, NL]

Yes, we agree, and hopefully we'll get the RCMP in here.

My third question is regarding your recommendations on eliminating the distinction between in-house lobbyist corporations and organizations, and the third point, which is allowing board members, corporations, to be included. You say that goes a little bit further than what the lobbying commissioner recommends. Did I hear that correctly?

[Guy Giorno]

No. I believe where we went further than the lobbying commissioner was in the monthly reporting. She wants to have all the lobbyists' names recorded, and we want it to go further and add not just the lobbyists' names but the names of public office holders present at the meeting who are not designated public office holders.

But in respect of the others, some of those are areas she hasn't touched on, so she did not make a recommendation—for example, on directors of corporate boards or organization boards being treated as in-house lobbyists. That's a CBA submission.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

That's a very good recommendation, because there are board members who would do some of this work and they wouldn't fall under anything.

[Guy Giorno]

In fact, Madam Chair, when we look at the registry of lobbyists—this is sort of instructive—about 85% of lobbyists on the registry are in-house lobbyists and 15% are designated as consultants. But of that 15%, roughly one third are not really consultants; they're actually directors of corporations, and, actually, I think most of them are directors of farm producer organizations, who must register as consultant lobbyists because the act doesn't permit them to be treated as in-house lobbyists for those organizations and entities.

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much.