Mr. Speaker, I am pleased to have the opportunity to participate in the debate on the Liberal opposition day motion tabled by the member for St. John's South—Mount Pearl. To remind us, the wording of the motion is:
That, given the apparent loophole in the Lobbying Act which excludes Parliamentary Secretaries from the list of “designated public office holders”, the House calls on the government to take all necessary steps to immediately close this loophole and thus require Parliamentary Secretaries to comply fully with the Lobbying Act, in the same manner as Ministers are currently required to do.
The Liberals have also introduced an amendment to that. The member for Beauséjour added the following amendment:
And further calls on the government to immediately implement the 2006 Conservative platform promise to require ministers and senior government officials, including parliamentary secretaries, to proactively record and report their contacts with lobbyists.
It looks as if the Liberals did not quite get their communications strategy together and had to add something to their motion, but the NDP will support both the motion and the amendment.
It is really crucial in this debate that we understand the difference between civic engagement and paid lobbying. With the Lobbying Act, we are really focusing on the whole question of paid lobbying.
The Lobbying Act's preamble states:
Free and open access to government is an important matter of public interest;
Lobbying public office holders is a legitimate activity;
It is desirable that public office holders and the public be able to know who is engaged in lobbying activities; and,
A system for the registration of paid lobbyists should not impede free and open access to government.
Currently, a designated public office holder is defined in the Lobbying Act as a minister of the Crown, or a minister of state and any person employed in his or her office. It also includes senior executive position holders such as deputy ministers or chief executive officers, associate deputy ministers, assistant deputy ministers and those of comparable ranks.
The Lobbying Commissioner has issued an interpretation bulletin to further clarify the definition of a designated public office holder in the Lobbying Act.
Parliamentary secretaries are members of Parliament assigned by the Prime Minister to assist cabinet ministers, but who are not part of the ministry. They are not cabinet members. Parliamentary secretaries are not included in the definition of a designated public office holder in the Lobbying Act.
Parliamentary secretaries, however, are public office holders, as are members of Parliament, senators and their staff, Governor-in-Council appointees, officers, directors and employees of federal boards, commissioners or tribunals, members of the Canadian armed forces and the RCMP. Therefore, the definition of public office holder is much broader than designated public office holder.
The Lobbying Act sets down different requirements of lobbyists when it comes to designated public office holders and public office holders. The key difference is that when a lobbyist is communicating with a designated public office holder they must report those contacts to the Lobbying Commissioner on a monthly basis and within a stipulated time frame. This is not required when a lobbyist is communicating with a public office holder. Therefore, there are different provisions for ministers, cabinet ministers and ministers of state than there are for ordinary MPs, for instance.
However, in both cases the lobbying is considered a registerable activity; that is the lobbyist must be registered with the Lobbying Commissioner. Registration is required when the lobbyist is paid to communicate for the making, development or amendment of any proposal or legislation, bill or regulation, or the awarding of any federal grant or contribution. It also includes written and oral communication.
All paid lobbyists must be registered. Paid lobbyists who approach ministers and ministers of state must file monthly reports on their activities. Paid lobbyists who approach parliamentary secretaries do not have to include those communications in their monthly reports. That is because parliamentary secretaries are not included in the definition of a designated public office holder.
In “Accountable Government: A Guide for Ministers and Secretaries of State”, and that is the Prime Minister's ethical guidelines essentially for members of the cabinet, the role of a parliamentary secretary is described and it includes the following. It talks about their responsibilities are carried out within the policy and program frameworks set out by their minister. It notes that there is a fundamental link between ministers and Parliament. It goes on to say that they play a liaison role within the caucus and throughout the House of Commons and its committees and between committees and the public service.
Parliamentary secretaries are expected to facilitate departmental appearances at committees by representing the views of the ministers and addressing political issues that may arise. Parliamentary secretaries may be called upon to answer policy questions during question period in a minister's absence. It notes that, given that parliamentary secretaries work under the direction of a minister, they do not introduce their own private members' bills or motions and a minister may delegate to parliamentary secretaries specific duties for parliamentary development issues.
It is very clear from the Prime Minister's guidelines that parliamentary secretaries have a close relationship with their ministers. It is also clear that it was thought that some restrictions on the activities of parliamentary secretaries were necessary, the example being that they cannot introduce their own private members' bills or motions.
The problem is parliamentary secretaries are perceived to be, and indeed can in reality be, people who have inside knowledge of the departments with which they work and special access to the ministers with whom they work. The role of parliamentary secretaries likely varies across governments. Some are given more responsibilities than others. Some will be closer to ministers than others.
The occasion for this opposition motion today, the case of Rahim Jaffer and his lobbying efforts, has raised the possibility that a parliamentary secretary was delegated a key role in the decision-making process, perhaps up to and including a role in the awarding of government contracts in a key government program. However, given the current status of the Lobbying Act, as it stands, contacts with a parliamentary secretary are outside the purview of the Lobbying Act and are therefore not subject to the reporting and scrutiny that is implied in the Lobbying Act.
The concern is it is therefore possible to delegate key responsibilities and possibly decision-making responsibilities to a parliamentary secretary to make him or her a direct point of entry for lobbyists to government. The concern is that where this is done, access to a key decision maker would take place outside the requirements of the Lobbying Act.
The Lobbying Act was designed to deal with decision makers, and this is an important point to make, especially given some of the debate this morning about who actually should be covered. The Lobbying Act was designed to deal with people who actually made the decisions. That is why it talks about ministers and ministers of state. The Lobbying Act was designed to deal with the decision makers. It appears from our recent experience that some parliamentary secretaries are exercising or coming very close to exercising some decision-making powers.
Given the discretion involved in establishing the duties of a parliamentary secretary, the best option would be to include them as designated public office holders under the terms of the Lobbying Act. The motion we are debating today calls on the government to do that without delay. It would also be incumbent on the government to review the job description for parliamentary secretaries in an accountable government and clarify whether they should have any decision-making powers at all.
It is really no stretch of the imagination that this is the only aspect of the Lobbying Act that requires attention. The Lobbying Act is just about due for its required five-year review. The Standing Committee on Access to Information, Privacy and Ethics has already made preliminary plans to begin that review this coming fall. There is no doubt that the Lobbying Act can be improved and there are many issues that should be considered in preparation for or as part of that review process.
A few years ago, at the end of his time as a member of Parliament, Ed Broadbent made proposals for democratic accountability, which included the need for tougher laws requiring disclosure of fees and expenditures of lobbyists and the need to make illegal the acceptance of profit-based fees or fees based on the outcome of the lobbying effort. He also called on the government to initiate reforms with tough sanctions applicable to wrongdoing in the public sector. At the time, Ed Broadbent said, “we need institutions that work against that culture of entitlement” and that rules were important to ensuring that this effort was successful.
We have often heard from the government that there was no problem in the current controversy because the unregistered lobbyists' efforts did not result in the awarding of a contract, but it is pretty clear that this is really not the point. The point is access to the decision makers. It is not whether they are good at their job, but that they were undertaking the effort at all.
Ed Broadbent also said that political cronyism must end. The perception that some people have better access to government officials runs absolutely counter to our hopes for a democratic society.
Those were issues that were highlighted by Ed on behalf of the NDP just a few years ago. There are many other issues that should be considered when we look toward the reform of the Lobbying Act.
The current Lobbying Act emphasizes the duties and responsibilities of lobbyists as opposed to those of designated public office holders. For example, while paid lobbyists who communicate with a designated public office holder must report those contacts monthly, there is no similar requirement for designated public office holders to file a similar report with the lobbying commissioner.
The only requirement for designated public office holders is that if the Lobbying Commissioner requests that they verify a communication entry made by a lobbyist, the designated public office holder must reply. In a sense, we have a system that monitors the lobbyists but does not keep track of what designated public office holders do when it comes to the efforts of lobbyists.
This is the issue that the Liberal amendment gets to. It is a very important amendment and that is why we will support it.
This two-way direction of keeping track of the lobbying efforts is very important. The Lobbying Commissioner has reported that, right now, there is over-reporting given the existing requirements of the Lobbying Act. Some lobbyists report their contacts with senators and MPs, which is not required presently. Changing the emphasis of the system to having designated public office holders report contacts might address this and should be considered as part of the review of the legislation.
There is also the very confusing aspect of dealing with definitions around public office holders and designated public office holders. It varies across different pieces of legislation. The Lobbying Act, the Conflict of Interest Act, the MPs' Conflict of Interest Code and the Prime Minister's “Accountable Government: A Guide for Ministers and Secretaries of State” should all have a consistent definition so confusion is reduced and hopefully eliminated. Right now, it is very complicated to explain exactly who one is talking about and in what context. The language that talks about inquiries and investigations should also be standardized as much as possible to eliminate the kind of confusion that exists today.
There is no requirement for lobbyists to disclose the amount of money they spend on specific campaigns and no requirement for financial disclosure. In fact, there are no spending limits for lobbying campaigns. This issue has come up many times in the past and it should be discussed again when we have a review of the legislation.
We see the need for the ability of the Lobbying Commissioner to undertake speedy and fair investigations all the time. There is frustration when an issue arises and there is not a speedy conclusion. We need to ensure the commissioner has the resources needed to accomplish both an expeditious and fair investigation into any concerns with regard to the Lobbying Act.
One thing we might consider is administrative penalties as a tool for the Lobbying Commissioner to enforce the act. Right now, an infraction of the act is a criminal infraction, but there is nothing in terms of administrative penalties that might help in things like filing late reports, for example.
The current Lobbying Act deals only with people who were considered decision makers. Some believe, and we have heard it in the debate this morning, that it should be extended to include others, including party leaders, committee chairs, caucus chairs and people who have other specific responsibilities in Parliament. Some would go even further and extend it to all MPs and senators. Again, this is idea merits discussion so we are clear on the intent and what the Lobbying Act is about.
The commissioner of lobbying must also have the resources to analyze the situation with regard to lobbying. For instance, the commissioner recently reported that the number of registered lobbyists has stabilized at around 3,500, which is a reduction of almost 30% since the Lobbying Act came into effect. The commissioner noted that there might be several explanations for this change. Some in-house lobbyists indicated that the additional reporting requirements of the Federal Accountability Act led some corporations and organizations to rationalize their approach and reduce the number of employees engaged in lobbying activities. The economic downturn might also have been a factor.
Contrary to this, the number of transactions in the registry has gone up, perhaps because of the monthly reporting requirements. However, this change in the number of registered lobbyists and the increase in lobbying activity have not been carefully analysed. It is important that the commissioner of lobbying has a clear mandate and the resources to fully research the situation, including contacting organizations and corporations that chose not to register.
The commissioner of lobbying also needs a clear education mandate. This is absolutely crucial. Educating designated public office holders and lobbyists about the Lobbying Act is a key to its success.
We also need to review the lobbyists code of conduct. This document dates from 1997 and it has not been significantly changed in the over 10 years since it was first promulgated. Rule number eight in the Lobbyists' Code of Conduct says:
Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.
Back in 2002, Howard Wilson, who was then the ethics counsellor with responsibilities for the Lobbyists Registration Act, interpreted this to mean:
...it is not reasonable to believe that the lobbyist has exercised an improper influence on a Minister, placing him or her in a conflict of interest, merely because the lobbyist was assisting the Minister in a leadership campaign at the same time that the lobbyist was lobbying the Minister's department on behalf of a client.
More broadly, I conclude that the mere fact that these two legitimate activities are being pursued by a lobbyist does not, in and of itself, breach the Lobbyists' Code of Conduct.
Democracy Watch, which has done lots of excellent work with regard to accountability, democratic accountability and on the Lobbying Act, challenged this interpretation in the Federal Court of Appeal. That court ruled that the 2002 advice of Mr. Wilson was “unreasonable”. As a result of that court decision, the current commissioner of lobbying released an interpretation bulletin on this rule. She stated:
A lobbyist may be in breach of Rule 8 if: the lobbyist's actions create a real conflict of interest for a public office holder, or the lobbyist's actions create the appearance of a conflict of interest for a public office holder.
The commissioner also said that real or apparent conflict of interest includes the presence of a tension between the lobbyist and the designated office holder which could arise from the provision of a gift, an amount of money, a service or property without an obligation to repay, the use of property or money that is provided without charge, or at less than its commercial value, and political activities.
The whole question of political activities is something that some people have said needs to be further defined, but this is an example of the kind of clarification that should be considered when the Lobbying Act is reviewed.
The Lobbying Act is key to government accountability and ethical behaviour. It requires our attention and respect as parliamentarians. It also requires the attention and respect of those who seek to lobby decision makers.
The motion and amendment being debated today are timely and respond to an important emerging issue and they merit strong support, but the job is not done and there is much more to look at. The review of the Lobbying Act will also require diligence and attentiveness to ensure the best possible legislation in this crucial area.
This is a work in progress. No party corners the market on ethical behaviour in this place. We all have to take responsibility for how we behave as parliamentarians, and this debate is certainly part of how we hold ourselves accountable in that effort.