Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 14 - Evidence, May 14, 2003
OTTAWA, Wednesday, May 14, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-15, to amend the Lobbyists Registration Act, met this day at 12:11 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we will begin this session of the Standing Committee on Rules, Procedure and the Rights of Parliament meeting on Bill C-15.
I wish to begin first by thanking Mr. Wilson for coming back early from Europe. We appreciate very much that you are here before us today.
If you have a presentation to make on lobbyists, we would be delighted to hear it.
Mr. Howard Wilson, Ethics Counsellor, Industry Canada: I am joined by Mr. Bergen who is a counsel for justice in the Department of Industry.
I have reviewed the transcripts of your last four meetings. I will make a couple of relatively short comments on some of the issues that did arise.
There is the question of enforcement. I would like to separate out that there are two enforcement issues in my mind. The one principal enforcement issue, the one that particularly troubled us, was our incapacity to effectively enforce the registration of lobbyists if we were to encounter a lobbyist who was not prepared to register simply because of the language of the act — ``in an attempt to influence.'' The five-year review by the commons committee was timely, because we were able to deal with that. The removal of the language, ``in an attempt to influence,'' does solve the enforcement problem.
We would still have to prove beyond a reasonable doubt that the facts of the case were as stated. That is, we would need to prove that the lobbyist was being paid and the lobbyist was communicating with a government department with respect to one of the stated purposes in the act, such as change of policy to a change of bill.
If we did encounter people who were not prepared to register, it would be easy for us to demonstrate in any court of law that the facts of the legislation were met. We do not believe that we will often find ourselves in a court of law. The reaction of most lobbyists in that circumstance will be to register.
The committee in the other chamber had asked us to look at the question of compliance, which we did. It reaffirmed our view that there is a high level of compliance. Part of this is that the act is self-enforcing. It is hard in a town as close as Ottawa to hide that you have been hired by someone to engage in a lobbying activity. Your competitors will become aware of this. It is a risky venture not to register. Our experience has been that registrations tend to be high.
Registration rates are lower in other parts of the country, especially in Montreal or Toronto, because people are not as familiar with their responsibilities as we would wish. We work at that on a continuing basis.
The other enforcement issue raised was the question of the lobbyist code of conduct. The code of conduct is not a statutory instrument and there are no penalties if a person breaches one of the rules. This matter was carefully considered in 1995 by Parliament. It was only then that there was a decision to have a code of conduct created.
The code of conduct was to parallel the codes that we had in place in the public service and for ministers. It was to establish a parallel obligation that if you were lobbying government, then you had a responsibility to do that with a high degree of ethical standards.
The view of Parliament at that time was that it would be sufficiently damning if there were an investigation. If it were found that a person had breached one of the rules, it would become a matter of public record because it was required that the report be tabled in Parliament. The question of having other kinds of monetary penalties was considered not necessary, since it was a code that was an aspiration but did have some precise obligations.
We have had good success with this. There have been a number of complaints referred to my office that a lobbyist or another person has not met their obligations under the code. We have investigated these to see whether there was a basis for a more formal investigation. In all instances, we found that the facts of the matter did not warrant a more formal investigation.
Again, the lobbyists live in a world in which there is a great deal of scrutiny. There have been problems in the past including great notoriety about one case or other.
With this proposed legislation, we have largely solved the problem. Transparency at the heart of the issue proved to be the answer.
We have had a number of events since the current act came into place, and a relatively small degree of public controversy. I attribute that mostly to the fact that information is so readily available.
I use as an example the Air Canada-Canadian question of a few years ago when there was great interest on the part of both political parties and the media as to who was hiring whom to represent the interests of Air Canada, the interests of Onex and the interests of Canadian. As I recall, virtually every lobbyist in town was hired at one point in time by one or the other of them.
My office received two telephone calls during that period, both of a technical nature from the media, inquiring how to access our Web site in order that they could report on who had been hired. We were all able to read the facts of that matter each day in the newspaper.
That process depoliticized a matter of great public importance. There was not the air that something nefarious was taking place on the margins. There was full disclosure of who had been hired and what their purposes were. We were pleased with that.
In removing the words, ``in an attempt to influence,'' we have made an exception for communications for the purposes of obtaining information. There has been much discussion about that.
Our conclusion was that lobbying is not a single event. It is usually part of a broader process.
In other words, if you enter into a lobbying venture to represent the interests of a company, it will take an entire series of different events before you accomplish your purpose.
The simple act of obtaining a piece of information, very singular, may have legitimacy in a certain circumstance where you have been asked for a piece of information. We thought that that should not necessarily bring forward a registration.
On the other hand, as I think one of your witnesses said, they might, in a certain circumstance, be required to pick up a piece of information. That individual event would not be lobbying, per se, but generally part of a larger responsibility in representing the interests of their client. You would have, in that circumstance, a registration.
Our view was that this exception would enable a number of lobbying firms to ensure that staff could phone and obtain information as to when an event or meeting would take place. That would not affect the overriding requirement that the lobbyist would have other encounters over a period of time, all of which would bring forth a requirement to register.
We did not see this as creating an exception that would cause a loophole, nor would it ignore the reality that conversations are often complex.
If I am talking to you about what is happening, the conversation could move to my clients' major concerns. That is, in our view, an activity that must be registered.
We wanted to eliminate the pure request for information as requiring registration. However, the moment that it becomes part of your wider purposes, it is better to ensure that there is registration.
We think that with that change, we will end up with an act that, as in the past, has been relatively easy to administer. It will be much easier to enforce if that is a requirement. However, it will not put in place unnecessary administrative burdens on innocent activity.
Senator Di Nino: I will defer to Senator Joyal because I was going to ask the same question on information, and he is much better versed on this,
Senator Joyal: Mr. Wilson, I want to return to three points of your presentation.
First, you mentioned that this is all about transparency. I must commend you for the code of conduct that you have issued. The opening paragraph states:
The lobbyist code of conduct is an important initiative for promoting public trust in the integrity of government decision-making. The trust that Canadians place in public office holders to make decisions in the public interest is vital to a free and democratic society.
This is a fundamental principle.
I have expressed earlier to other witnesses that the original bill is more laconic in its preamble than your code, which states clearly the principle. I have expressed some concern about it, because it is a fundamental principle that serves to illuminate and inspire the other clauses of the bill.
Did you make representations when the review was underway to ensure that that principle was at the forefront? That is my first question.
You have referred in your own presentation to section N-24 of the original Lobbyist Registration Act that notes that the code is not a statutory instrument.
We discussed with the minister yesterday a comparison of the federal legislation with the new Lobbying Transparency and Ethics Act of the Quebec government. I draw your attention to section 53 of the act. It states:
If the lobbyist commissioner ascertains that the lobbyist has gravely or repeatedly breached the obligation imposed on lobbyists by this act or the code of conduct —
There is a clear statement in the act that the code of conduct and the provisions of the act are at par in terms of interpretation and in the context of compelling obligation.
The federal act is much looser on this. It states only that a lobbyist must abide by the code of conduct. However, it states in the same section that it is not a statutory instrument. In other words, there is a limitation on the nature of the code of conduct. There is no doubt legally that there is a clear limitation.
I would expect that at some time you would address that. If we are to create that impression of transparency and trust, the fundamentals of the act must be clearly stated.
My third point is in relation to information. I refer to the exception, in other words. Again, I return to the first principle. We want to achieve transparency and integrity of the system. That is your stated objective, and we fully concur with it.
However, there is an opening. The word ``information'' is a code word that could cover almost anything. It must be strictly interpreted in the context of the act.
Witnesses have proposed a certain number of avenues to circumscribe that. It is in the interest of the lobbyist to know the information that is an exception. It is in your interest, as well. You would have a better capacity to intervene if you feel they went beyond the line.
We have looked into the American act that defines the exception. We have looked into the Quebec act that defines the exception, too. I stated it yesterday. You might have read it in the transcript of our meeting. Of course, there is always the regulation that the Governor in Council, according to section 12 of the present act, can adopt in the pursuit of the objectives of this act.
Would it not be more appropriate for your position to have a most stringent definition of obligation, which should be through Governor in Council regulations? If we have Governor in Council regulations, they are part of the statutory instruments that are published in the Gazette. They have the same force of law as the original act, unless there is a limitation on the act. At least we would establish that the exception is of the same nature as the act itself.
That aspect of the proposal needs to be tightened if we want to be sure that the overall objective, which is to make the system more credible, is met by the original proposals.
Mr. Wilson: The first question was whether the preamble could be changed to reflect the comments that were made in the lobbyist code of conduct, which I had prepared and submitted to Parliament.
I agree with you that the lobbyist code of conduct was perceived as complementing the obligations that government had placed successively on public servants and Governor in Council appointees, ministers and others. The obligations begin with a set of principles of expectations for those in public life. The new code of 1994 for public office holders began in its current form in 1985. One of the most important points of that beginning was that public office holders have to perform their activities with the highest level of integrity. It also states that in their activities, public office holders have to act in a way that meets the test of public scrutiny, which is not met by merely acting within the law.
I use this as a point of departure because there are strengths in a code. A code will not find itself the subject of massive deliberation in courts of law. It allows, in effect, a greater degree to deal with the essence of the issue before us. That has worked well, in my view, for the code for public office holders. There is a set of standards that allows you to apply those principles to the situation at hand. It also means that an issue can be dealt with more quickly than it can with judicial consideration.
Whether this should be found in the preamble, I will not say. However, it is an absolutely fundamental part of the code that the trust that Canadians place in public office holders to make decisions in the public interest is at the heart of our democratic system.
This leads to the question you raised about the lobbyist code of conduct and a comparison with the Lobbying Transparency and Ethics Act of Quebec, in particular section 53. We have a code and therefore I have been able to deal with its application by analyzing different situations. I have had to deal with the question of Chinese walls. That is a situation in which a firm is providing consulting advice to government departments at the same time that others in the same firm may have taken on lobbying assignments. There are a number of firms in this town that have those dual responsibilities. I have been asked the question. I approached it from the point of view of this code, and I was able to determine that drawing upon a Supreme Court decision that the use of Chinese walls could be used to deal with it. I thought that was dealt with satisfactorily.
More recently, there had been accusations made that a number of public office holders and a number of lobbyists were engaged in improper behaviour and that the lobbyists were in breach of the lobbyists' code of conduct by engaging in improper influence. This accusation was made against a wide variety of lobbyists.
I was able to issue an interpretation of that, which has allowed me to deal with a number of cases. There may be some judicial determination on the case. However, it seems to me that a code should not be too quickly dispensed with because it has great merit in terms of how it applies and its aspirational tone is easier to maintain. In formulating it, we certainly tried to set off some broader principles. We use the word ``should'' and then we had some rules where we used the word ``shall.'' I am not sure that the case has been made to have it expressed in statutory terms. The flexibility that comes from having a code, as opposed to a statutory instrument, is beneficial because it means that an ethics commissioner, in future, when dealing with a new, unanticipated situation would be in a position, under the terms of the legislation, to draft an additional code to deal with a problem that previously had not been anticipated.
However, the question in Quebec raises a problem that we did address. The language in Quebec says that if a lobbyist commissioner ascertains that a lobbyist has gravely or repeatedly breached the obligations, the commissioner may prohibit the registration of the lobbyist in the registry of lobbyists.
That is a position about which we were concerned. If you were to find that a lobbyist had breached the code of conduct, could there be a penalty in place that would forbid that individual from lobbying? We were receiving strong advice that there is a constitutional point of fundamental principle that a person cannot be denied the opportunity to make a representation to a public office holder. Quebec has decided that there will be such a penalty and the matter can be referred to the courts.
The U.S. Lobbyist Declaration Act specifically states that under no circumstances can there ever be a penalty within their lobbying activities that would prevent someone from exercising their constitutional rights to make representations. I am a little worried about something that forbids a person from lobbying. We had thought, and I remain convinced, that if a lobbyist fails one of the rules of this code, and that information is tabled in the house and put on my Web site, then that lobbyist is deemed unethical. In my experience, most companies would be rather unhappy about being associated with someone with such a reputation. You are taking an extreme risk, which may well deny you the possibility of future employment. It would raise a question if the company in question thought that they wanted unethical lobbyists. That would say a great deal about the company.
The last point was on information and whether regulation through Governor in Council might be necessary. I accept the points that you are making. Currently we think that the solution to the definition was to issue it through a provision of an interpretation bulletin by the registrar. This is provided for in the act. We have used this with great success in the past. For example, what constituted a significant part of your duties? The registrar had determined that it was 20 per cent and that has been greatly honoured.
That is an easy way to deal with it. We thought that would be our first approach. However, I accept your broader point that if this turns out to be a point of confusion, and we need something more precise, then we have the ability to propose a regulation to the Governor in Council.
Senator Joyal: On the point you raised about establishing the code of conduct on the same basis as the act, that becomes a Charter issue. I fully agree with you that there has to be due process when someone is suspended from a benefit. Sections 54 and 57 of the Lobbying Transparency and Ethics Act provide for due process, as you are well aware. Section 54 states that before issuing a decision, the commissioner must inform the lobbyist of the intended decision and the reasons therefore and of the content of any complaints regarding the lobbyist. The commissioner must also give the lobbyist the opportunity to present observations and, where necessary, to file documents to complete his or her file.
The act also states that a decision of the commissioner may, upon a motion served on the commissioner, be appealed by the lobbyist concerned before a judge of the court of Quebec.
There is due process provided for in the act if the code has the same legal nature. You cannot deprive someone of a benefit without allowing the person an opportunity to present his or her challenge to that, given the principles enshrined in the Charter, which I feel are reflected in this act.
One essential element, which you have raised, is: What should the legal nature of a code of conduct be? I have read the decision of the Supreme Court of Canada of 1990 — I think it was McMurtry — that came to the conclusion on the basis that it was a code of profession. I do not remember which province — it was a long time since I read the decision — but it was a code on conduct that applied to one profession. The Supreme Court of Canada came to the conclusion that the code of conduct that was before the court was not compelling in court. I remember that.
I will go back to that because I think it is an important element. We are discussing codes of conduct for senators, MPs and others, and I think it is important to understand what is the legal nature of a code of conduct.
Once you have put it in the statute, and you have invested a public officer with some powers of investigation and you deal with the fundamental rights of the people, the nature of the obligation has to be legally established. Otherwise, as you have said, there is some kind of imbalance between the penalty and the obligations. There has to be a balance between the obligations and the penalty in our system. There is an element of fairness; it is one of the principles of fundamental justice in Canada. The Supreme Court of Canada and Court of Appeal in Canada re-established that through all kinds of decisions.
It seems to me that there is still, in our bill, some kind of imbalance. The penalty you will impose is such an important penalty in our traditional common law system — the person will be publicly denounced and stigmatized — that there should be other, lower levels of penalties that would give you better tools to implement the code of conduct. With such a drastic penalty, essentially your hands are tied. You will have a tendency not to apply it because it is too outrageous. You feel the case does not deserve that much of a penalty. Nevertheless, it is conduct that is unbecoming and should be disciplined.
Therefore, I feel that there is some kind of looseness about the principles in the present system. I wonder if, on the basis of our experience and what we try to establish in Parliament and in the public service — because the code you refer to, the public service 1995, as you know is under revision, under discussion, the Public Service Commission has issued on its Web site a list of principles they want to revisit...
The Chairman: Question, Senator Joyal?
Senator Joyal: Could you comment generally on that aspect of the bill, of the original act and the bill? What does it do in terms of establishing the better balance between those principles?
Mr. Wilson: I am in total agreement that, at the end of the day, the penalty that could come from a determination that the lobbyist code had been breached could have serious consequences. That was very much a matter of discussion at the time when the act was last changed.
In setting it out, section 10 of the act on the lobbyist code of conduct states that where the Ethics Counsellor believes on reasonable grounds that a person has breached the code, the Ethics Counsellor shall investigate; and, in making that determination, acquires all of the powers of the Superior Court of Record.
It also states specifically that before finding that a person has breached the code, the Ethics Counsellor shall give the person a reasonable opportunity to present their views to the Ethics Counsellor. Then the information is tabled in Parliament.
The way that we try to deal with the problem that you have raised is that if we receive a complaint, we do not immediately set about creating an investigation. My office takes the information that has been provided to us, and individuals within the office are then assigned to get the basic facts. On the basis of that, a report is provided to me as to what that determination of the facts suggests. It is on the basis of that information that I would then say whether or not I believe on reasonable grounds that a person has breached the code.
We have not reached that point on any case. There have been circumstances where a lobbyist has carried out something that they probably should have thought better of. It was easy to deal with it in that preliminary stage rather than launching the full panoply of powers that the act invests in the Ethics Counsellor.
This is not a power to be used frivolously. It is a power that is important and has to be dealt with carefully. One of the reasons is that the legislation dealing with the ethics package proposes that the registrar acquire the powers to deal with the lobbyist code of conduct. I expressed a reservation about that because the registrar is not a senior person. I currently have a senior person there, but that was for the reasons of the amendment to the act. It is an administrative function.
This is an important power. Therefore, I said in the other place that consideration should be given, if you are changing my job, to give it to the person who is taking over the main elements of my job. In other words, this power under the code of conduct has to be carefully constrained and dealt with with a great deal of care and attention to the individuals being affected.
The Chairman: I would suggest that we try to wrap this up by shortly after 1 o'clock so we can do clause-by-clause consideration.
Senator Di Nino: I, too, am quite concerned about the issue raised by Senator Joyal on the potential creation of a loophole from registration when the lobbyist or someone is only requiring information. For clarification purposes, I believe I heard you say that you would deal with this through an interpretation bulletin; but I am still concerned about how we monitor whether these discussions or requests have gone over the line. How does one know when the line has been crossed if there really are no rules to abide by? In effect, it would be left up to the interpretation of whom — the person making the inquiry or the person answering or providing the information?
I think we are creating a loophole that will result in some serious problems in the future. I do not think that the suggested solution to this is the correct one. Could you satisfy me or clarify for me how this would be accomplished?
Mr. Wilson: The major change here was to remove a serious problem, and that is ``in an attempt to influence.'' That was the point at which we had no enforcement powers. The simple removal of that language will make it possible for us to secure a conviction if necessary in a court of law, which means that the lobbyist will certainly register.
I can only try to answer your concerns from our experience on this matter. There are two points, the first being that we get many calls as to why someone is not registered. People are curious about this — competitors, departments and public servants who are dealing with someone. Because the registry is so easily accessible on the Internet, it is easy to find this; and people tend to bookmark it that has a business in this. It is constantly used.
The registrar has gone about her business in such a way that when we get a call or read something in the newspaper or hear a comment made in Parliament, she will contact the individual involved so that they may have a discussion about the individual's activities. Generally, that discussion generates two outcomes: One, they both agree that the person is not engaged in lobbying and therefore no registration is required, or two, the person has been engaged in a lobbying activity and complies by registration.
We were criticized in the other place by the fact that we were not charging people in these circumstances. Our answer to was straightforward. We thought that the purpose of the act was transparency and public interest was being met by registration.
I cannot overemphasize the fact that there is constant surveillance by members of the lobbying community as to what their competitors are doing. This has led us to believe, and we have been able to prove, that we have a high degree of compliance. We think that we will be able to demonstrate through an interpretation bulletin, which is part of the registrar's powers, that the loophole you worry about is a limited exception and we will demonstrate how it will apply. We will find it beneficial in the drafting to take into account the concerns that you and others around this table have expressed. If it does not work, we can then use a statutory instrument to deal with it. Our experience has been that this act has been relatively easy to enforce because the damage to reputation is too great.
Senator Di Nino: You made reference to an interpretation bulletin. That obviously leaves the decision up to an interpretation by someone. The registrar would do that. How would the registrar know about a discussion that I, seeking information, have had with someone that may have overstepped the line?
Mr. Wilson: As I say —
Senator Di Nino: — innocently.
Mr. Wilson: I attempted to deal with that at the beginning by saying that lobbying is generally a series of activities. When one enters into an undertaking with a client, over a period of time there will be a number of communications with a variety of public office holders about the objectives of that client. It may be a piece of legislation, a regulation or a contract. Very seldom is it a singular event. Therefore, there may well be a conversation in which it is revealed that someone did step over the line but if that was the only thing that ever happened and there was no further communication, then no great harm would have been done to the public interest. If it were true lobbying engagement, it would have a series of these events that would be less ambiguous.
Senator Di Nino: I have one more question on another concern that has been raised by a number of people in the other place and in hearings in this committee. The amount of money spent on the lobbying effort — on a lobbying campaign — can vary greatly. We understand that there are time and other considerations but some have recommended that disclosure include the cost of the lobbying campaign. We have heard from the government side that that is not necessary, for a number of reasons. Could you share your thoughts with us on that?
Mr. Wilson: This matter has been looked at thoroughly over time. It was reviewed in 1995 and the committee, at that time, recommended against such an inclusion in the disclosure.
The issue arose again and a variety of views were expressed. The committee essentially asked government to take another look at it and come to a conclusion. We concluded that it would not add any important benefits to the public interest.
That conclusion was born of a variety of things. The registrar and I travelled to the U.S. to see how the Americans handle this matter. They have large bands but they do have an interpretation problem in terms of the portion of the activities that relate to the lobbying. There are some serious interpretive problems. It may be difficult to effectively enforce.
There is another issue, however: Is money the only determinant of the effectiveness of a lobbying campaign? I believe it was someone around this table who said that they did not agree with the notion that money was the only element in the effectiveness of a campaign. In fact, we have watched a great deal of money being spent rather ineffectively on major, public policy issues by some wealthy corporations.
Some of the most effective lobbying does not have a cost at all. It may include a series of telephone calls or encounters that a senior person may have with a senior public office holder, which can have a dramatic impact on how legislation is subsequently shaped — there is no money involved in that. We think that is important, by the way, and should be part of the registration. It was part of the motivation that led us to use the same approach for corporations as we use for not-for-profit organizations in that the senior officer is required to make the filing and then listing of those other people that will be engaged in the lobbying activities.
Senator Grafstein: Thank you, Mr. Wilson, for undertaking probably the most difficult job in government. We know the difficulties, the pressures, the problems and the confusion in the public mind. I hope that this bill does not add to that confusion. I will make a comment and then ask a specific question.
I am concerned about the scope of this bill because it is much too broad and wide. The preamble states that the public is entitled to know who is engaged in lobbying activities. I cannot think of a single person I have met from my son, to my wife, to my cousins, to people on the street, to the cab drivers, who do not lobby me for something. They lobby me for something related to the development or amendment of any policy or program of the Government of Canada. It happens every day, wherever I go. If I hide the fact that I am a public office holder, that is great, but I still hear it.
The Chairman: The question is: Are they being paid to do it?
Senator Grafstein: Chairman, just give me one moment.
Therefore, will this bill inhibit my constitutional responsibilities as a senator to represent the interests in the regions of my community? I believe that it will. I hope that you can convince me that I am wrong. Our role as senators is different than the role of members of the House of Commons. We are here to promote our regions and the interests in the regions, both public and private. There does not appear to be, and you have already said this, any clear differentiation between a for-profit enterprise and a not-for-profit enterprise. I think that for-profit enterprise is one thing and not-for-profit is another but both, directly or indirectly, will get a benefit from Canada because of a tax receipt. Not to differentiate between those two is something that I do not quite understand.
What, therefore, is the onus on senators to disclose? We know that the onus is on lobbyists to disclose. What onus do I have, as a senator, to disclose and to fulfil the responsibility that is desirable to public officers and for the public to know who is engaged in lobbying activities? Do I have an onus? What is the nature of my onus in this respect?
Is the conflict built into the Ethics Counsellor's role? You and the legislation represent that the Ethics Counsellor deals with lobbyists as clients.
The Ethics Counsellor, who has a quasi-solicitor-client relationship with his clients, is compelled under section 7, on page 11, to advise a peace officer to investigate an offence. Therefore, the Ethics Counsellor is in a conflict. Is he the counsellor, judge, or prosecutor?
The unfortunate language does not make a difference between registration, which we understand as bringing that to the public attention, and the role of the Ethics Counsellor.
I leave those simple thoughts with you, but there are many more here. The bill does not deal with a major problem of inhibiting the role of a senator to pursue his constitutional functions.
The Chairman: Senator Grafstein, as I think I mentioned to you yesterday, there is no compulsion whatsoever in this bill for a senator to track down who is a lobbyist and who is not.
I think that Mr. Wilson will agree with me that this is not a solicitor-client relationship. There is no privilege at law in this.
Senator Grafstein: Madam Chairman, with all due respect, I know your opinion. I am here to find the evidence from Mr. Wilson. I would like to know what Mr. Wilson thinks about these things, with all due respect, Madam Chairman.
Mr. Wilson: The question of making representations is well understood. This act deals only with those who are paid to carry out those representations — not citizens, friends, family and those making representations to you as a public office holder. There is no change here.
Senator Grafstein: Mr. Wilson, you have said that sometimes there will be no money changed. A person will not be paid to do something as a lobbyist, but still have a very potent effect. Explain that.
Mr. Wilson: I did not say that. I said that sometimes there would not be any expenditure of funds on a lobbying campaign. It would be only a telephone call or a meeting. This was in response to Senator Di Nino's question on whether we should require the disclosure of lobbying expenditures.
Regarding the question of inhibiting senators or members of Parliament, there is nothing in the act before you that changes what has been in place since 1995-96. We have no evidence whatsoever that this will inhibit your responsibilities as a senator. None inhibition is foreseen.
Is there any onus on you? No, the onus is on the lobbyist to register. We have then the means to ensure that that does occur. We only want registration.
You mention that you think it made sense to maintain the differentiation between not-for-profit and for profit organizations. I agree with you. They have very differing purposes.
It is proposed here that the registration procedures would not be different. They will describe different outcomes of what they do. There are some strengths in the not-for-profit process currently, and it should be duplicated for the other.
Last, I will address the question of a conflict. If I had a reasonable belief that a lobbyist had breached the code, then I require all the powers of a superior court of record. I am obligated by the act as it is currently written to carry out an investigation and issue a report.
The only proposed change is that if in the process of that investigation, I come across some evidence of criminal activity, then I am compelled to turn that over to the authorities.
Senator Grafstein: A brief supplementary.
The Chairman: Senator Grafstein I will put you down for another round. I must point out that I do have Senator Andreychuk and Senator Murray on the list.
There are certain realities that if we are to amend this bill and move it over to the House of Commons in time for them to deal with it before the summer, we must proceed to clause by clause today. We have 25 minutes left to do so.
Senator Andreychuk: Is that an undue burden you have put on me? The more we talk, the more confused I become on some of the terminology. Perhaps you could explain to me the difference between communication and information.
I do know that lobbyists will inform. We have taken out ``the intent.'' Obviously, they have a point of view, and they will express it to whatever public official. They may characterize it as simple communication, but its intent carries much more.
A piece of paper from an individual citizen saying, ``I think,'' carries some weight. However, a piece of communication from a lobbyist on behalf of a major corporation, NGO or a major grouping of people certainly has a different weight.
They may characterize this as communication, but you and I know what they are really trying to do. They are trying to persuade the office holder to their point of view.
I can do that in many ways. I can do that by passing you a paper, through my choice of words, the body language or the names I might drop, as a preface to my information statement. We are not clear as to what is prohibited and what is allowed. We will have someone deciding that.
However, we will pass an act giving them this power. I am having trouble with that. You say that, generally, lobbying is a series of activities. I agree. Equally, persuasion could be one event or one comment. Is this proposed act precluding that?
You have said that it is a serious interpretation problem. You said that the public demands transparency, but the public demands fair access to be heard in a democracy, also.
The lobbying that concerns many people is that they do not have the same voice as the lobbyists do. That is another concern about the transparency, but fair access is also the issue.
You said that the onus will be on the lobbyist, but really the onus will be on the interpretation. You stated earlier today that that is a problem. How does this bill address that problem?
Mr. Wilson: We believe that we have solved the problem if this bill is passed. Registration previously occurred only if one communicated in an attempt to influence. That is difficult to establish in any court of law. Prosecutors were not prepared to deal with it. Therefore, we took out the phrase, ``in an attempt to influence.''
We talked about communication on exactly the subjects that you mentioned. It does not have to be much of a communication to carry with it all of the impact that you and I understand it could carry.
Therefore, we put the emphasis on the act of communication. That then becomes the activity that must be registered. If the communication was about any of the cited things in the act, including a legislative proposal before the government regulation, a contract, a grant or contribution.
We have also said that it is not an activity that must be registered if the communication is only to obtain some information. We wanted to make it very narrow. This will work, and it will ensure that the kinds of conversations that you have just described are captured adequately, if not completely, by that approach to communication.
I did say that most lobbying activities are a series of events. However, if I am paid as a lobbyist, and I make one telephone call with respect to trying to advance one of those issues, it is a registerable activity. If I try to organize a meeting for my client, that is a registerable activity.
Regarding the single activity of seeking information only, we wished to ensure that the act did not create an unnecessary burden on individuals who are merely making telephone calls to determine the next meeting on a given subject.
We think that we have been able to capture this. We think the registrar will be able to give words that will be informed by the discussion around this table that will work. If not, we can still go back to the question of an Order in Council regulation.
Senator Andreychuk: Do we have any interpretive bulletin that would give us some comfort as to what that definition will be? You say we think we can come up with it. Surely it would be helpful if we knew what that was now.
Mr. Wilson: We have a draft underway. I would have been able to circulate something; however, the registrar underwent a serious operation a week or so ago and is not available. I might be able to find the text that she has worked up to this point that will show that we are trying to narrow it down to a simple question for a fact.
Senator Murray: I hear what you are saying about the exemption for information-seeking activity, but I tend to come down on the other side of that. As Mr. Chenier pointed out here the other day, so much of the activity that takes place is ostensibly of an information-seeking nature. Further, much of the information they are seeking is information they should not have, such as when an item is going to be on the agenda for a cabinet committee or where a particular minister or department may be coming from on a particular issue.
In the course of the so-called information-seeking calls, they may also offer some information, such as when an item is going to be on a cabinet committee agenda, even before you have the agenda yourself; and where various ministers stand on these issues even before you have had a chance to hear from them yourself. Therefore, I think the more light shed on that kind of activity, the better.
If you are comfortable doing so, I would like to have your comments on a couple of amendments that have been proposed by the Government Ethics Coalition last week. One is the amendment that would prohibit lobbyists from working for the government, or having business ties to anyone who works for the government. That may be extreme, but you get the point. The second is that the prohibition on lobbying the government for ex-ministers and ex-senior public officials should be increased to five years.
Finally, this has to do with what Senator Grafstein referred to as not-for-profit organizations. When the Government Ethics Coalition was here the other day, they left us a list of their member groups. As we speak, a good many of these groups are swarming around their patrons in the government — and they do have patrons in the government — to save their favourite programs from the $1-billion reductions that Mr. Manley has instructed the bureaucrats to find in the next little while.
This is a symbiotic relationship between non-profit groups and the government. There is nothing sinister about it, but it is quite a relationship. I hope and wonder whether this bill will catch that kind of activity, because I think it would be important to know at the end of the day who is able to lobby whom about what.
The Chairman: Very briefly, Mr. Wilson. We only have 15 minutes and I must get clause by clause through.
Mr. Wilson: I will not comment on whether lobbyists should work for the government. That is a broader issue. Five- year prohibition on public office holders is draconian. I think you have to strike a balance. We have a two-year cooling-off period for ministers and a one-year cooling-off period for other public office holders. I think that meets the public interest, and it has not been abused. It has been applied successfully over the past 20 years.
Regarding the last question, I hope that we have captured almost all of these not-for-profit organizations. Certainly, we have regularly telephoned them to make sure that if they have one paid employee, then they have a registration requirement. A few that we have continuing discussions with claim nobody is paid, everyone is a volunteer. These are the exceptions. We think we have a good compliance rate.
The Chairman: Thank you Mr. Wilson. Senator Rompkey?
Senator Rompkey: I move that we move to clause by clause, Madam Chairman.
The Chairman: Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-15, to amend the Lobbyist Registration Act?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
I will group the clauses, if I may. Shall clause 1 to 3 inclusive carry?
Hon. Senators: Agreed.
The Chairman: Senator Grafstein?
Senator Grafstein: I have a technical question. I am not sure that the English translation of (d) under (2) is the same as the French translation. Can we get some assurance that it is the same? One seems to be much different than the other — or much more defined.
The Chairman: Can anyone help me with that? There is a difference in length.
Senator Joyal: It would be helpful to have the original French act. I have only the English version of the original act.
Senator Grafstein: We have been trying to sort that out.
Senator Joyal: We were trying to sort that out.
The Chairman: We will return to clause 2. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 4.
Senator Rompkey: I have an amendment to clause 4. I move that:
Bill C-15 be amended in clause 4 on page 4, by adding after line 15, the following:
``(h.1) if the individual is a former public office holder, a description of the offices held;''.
The Chairman: And in French?
[Translation]
Senator Rompkey: I move that bill C-15 be amended in clause 4, on page 4, by adding after line 10, the following:
«h.1) s'il est un ancien titulaire d'une charge publique, la description des postes qu'il a occupés;»
[English]
The Chairman: Shall the amendment carry?
Senator Di Nino: There is a different wording from the one that was included in section 7, I believe.
The Chairman: It is individual rather than —
Senator Di Nino: An employee or something.
Senator Rompkey: The intention is to cover everyone.
Senator Di Nino: I understand that. I want to ensure that we are not running afoul of anything. I just want to make sure.
The Chairman: This is individual consultants.
Senator Andreychuk: Obviously we are in agreement with this and have some concerns. However, I would not want us agreeing on this side to this amendment as an indication that that is the only concern we have about the bill. We will contemplate, both here and in the caucus, as to whether there are further changes that are necessary for this bill.
The Chairman: That is quite understood. Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: The amendment carries.
Shall clause 4, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 5 to 18 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
We have some clarification on clause 2.
Geoffrey P. Kieley, Law and Government Division, Parliamentary Research Branch, Library of Parliament: With respect to the senator's question, you will notice that clause 2 amends only sub-paragraph (d) of the definition of organization. The full organization in the English act is actually six subsections. The French definition, on the other hand, basically collapses them all into one section. You will find that the French definition —
Senator Grafstein: I will be satisfied if you are satisfied that the two are actually in sync with one another. We were trying to put it all together, and it was hard for us to do this in the few minutes we have.
Mr. Kieley: They appear to be. It is just that the French definition coalesces all of those six subsections into one section.
Senator Grafstein: I am satisfied with that if the staff is satisfied that they are identical.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Shall this bill be adopted, as amended?
Hon. Senators: Agreed.
Senator Grafstein: Just before that, and I do not mean to be difficult, but I have gone back through some of the testimony and there are some concerns. I do not want to impede the progress of the committee but I want to make certain that while I support the bill, I do not want to be prevented from speaking on the broader issues when this report and the bill come to the house, should I choose to do that. I am not sure I will. I have not completed my own work on this and I apologize for that. This is broad and I want to note that on the record.
The Chairman: That is quite understandable, Senator Grafstein. I believe you are probably not the only one.
Senator Rompkey: I just wanted to say we do recognize that we need to have additional discussions on this bill and this issue because more work is required. The question is: Can we do something useful now and then work on other issues later? Others and I would like to do that. I would like an assurance that that is the case.
Senator Grafstein: That is fine, chairman.
The Chairman: Thank you, Senator Grafstein.
Is it agreed, honourable senators, that the chair report this bill, as amended, at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Hopefully, we will get it in time to revert this afternoon.
We have been speaking to Lord Williams and he will appear before this committee for our discussions on code. The planned date for his appearance is Monday, June 9. We have agreement for the committee to meet at 4 p.m.
The committee adjourned.