Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 12 - Evidence, April 29, 2003
OTTAWA, Tuesday, April 29, 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 9:33 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our first witnesses are from Industry Canada.
Please proceed.
Ms. Diane Champagne-Paul, Director, Lobbyists Registration, Industry Canada: Madam Chair, honourable senators, I want first to thank you for the invitation to appear before you as you begin your examination of Bill C-15, to amend the Lobbyists Registration Act.
I will keep my remarks brief today. From reading the debate that took place at second reading, I noted the degree of general satisfaction with the bill on both sides of the chamber.
I believe that, in no small measure, this bill reflects a simple reality: The Government of Canada has a lobbyist registration system that works well. We have a transparent system so Canadians can easily see who is lobbying which departments about which issues. We have a system that works because all involved — lobbyists and those whom they lobby — understand the importance of making it work.
Having said that, there is usually room for improvement in any legislation, especially with some seven years of experience to guide us. That general incentive to improve the legislation is even more compelling at a time when Canadians rightly want to see all public institutions take action to earn their confidence and trust.
[Translation]
A good starting point is to describe briefly the lobbyists registration system that we have in place today. Four key principles guide the current system and would continue under Bill C-15.
First we see free and open access to government as an important matter of public interest. Second, we recognize that lobbying public office holders is a legitimate activity. Third, we believe that public office holders and the public deserve to know who is attempting to influence government.
Finally, we understand that any system of registration of paid lobbyists should work in ways that do not impede free and open access to government. The current act is focused on people who are being paid to help influence public office holders when it comes to matters such as legislation, regulations, policies, programs or grants and contributions.
I should point out that by public office holders, we mean parliamentarians and their staff, as well as all federal employees, including those in the Canadian Forces and the Royal Canadian Mounted Police. The act sets out different kinds of information that lobbyists have to provide on their work and sets the stage for the Lobbyists' Code of Conduct and its standards of conduct that add further detail to the direction set in the legislation.
Bill C-15 is the culmination of an extensive review process. The House of Commons Standing Committee on Industry, Science and Technology studied the act in 2001. It made recommendations on some issues and recommended no change to many others, stressing the act does work well.
That led to this bill, which was only amended slightly prior to its arrival in the Senate. As with most bills of this kind, there are the usual technical amendments that would ensure consistency between the English and French versions and address minor wording points that have been discovered over time. More substantively, Bill C-15 proposes three main areas of change.
[English]
The first change would address some confusion over who needs to register as a lobbyist.
Under Bill C-15, unless we are talking about simple fact-finding, if a person communicates with a public officeholder and is paid to do so, then that person has to register as a lobbyist. Bill C-15 would also end the exemption that is now in place if a public officeholder initiates the contact with the lobbyist. So no matter who calls first, communication requires registration.
The second change would create a single registration system covering lobbyists employed by businesses and lobbyists employed by not-for-profit organizations — people the legislation refers to as in-house lobbyists. Under the proposed new system for in-house lobbyists, their chief executive officers would be the ones who actually register on behalf of their businesses or organizations. That change would focus responsibility for adherence to the law at the top. The need to register would come into effect if the cumulative lobbying of all employees works out to be at least 20 per cent of the working time of one employee. The same consistency would come into effect for the required updating of registration and deregistration information, giving Canadians the most current information possible.
To add to that information, this bill has come to you with one amendment from the House. It was agreed that it would be in keeping with the spirit of the bill if it were required that any in-house lobbyists who had formerly worked for the Government of Canada had to provide information on the positions that they held.
The final major change I want to mention obligates the ethics counsellor and his staff to report matters that appear to be offences under any law to the police, if they come across them during their own investigations.
[Translation]
Before I conclude my remarks, I want to comment on some recurring points that I expect some of you may raise about the lobbyists registration system and the current act as well as the proposals now before this committee. One point is the question of extending the scope of information that would be provided under the Lobbyists Registration Act.
For example, it has been proposed that lobbyists list the names of every public office holder whom they contact. However, when the Standing Committee on Industry, Science and Technology did its review of that specific issue in 2001, it decided against making that recommendation. It came to the conclusion that not only would that added disclosure not add significantly to transparency, it would work against principles underlying the act. The committee felt that adding to information requirements would impede communications between public office holders and lobbyists. It was certainly the view that adding this level of information would considerably increase the costs of compliance and enforcement. The Government agrees with the committee.
[English]
A similar point could be made about the suggestion that lobbyists report their fees. When the current act was considered in 1994 and 1995 and again in the 2001 review, the parliamentary committees concluded that because other professionals can be involved in the policy process without requirement to disclose fees it would be arbitrary to single out lobbyists. On this point, as on the last point, the government believes that the committee was right.
I should end my remarks with this point. Parliamentary reviews, the testimony of people who know the lobbying process well and our own sense of the situation tell us that the systems works. Lobbying is a legitimate activity and one that must take place with transparency. It is in the interests of everyone who believes in open, effective government that this be so. The system works because all involved know that they have to make it work and that they have to be seen to make it work. The few amendments that we are discussing today will help an effective system work even better and will do more to earn the trust of Canadians.
With that, I await your questions, honourable senators.
Senator Stratton: I know that you may not be able to answer this question, however, we have been informed by various people that Bill C-15 can only work if the House and the Senate adopt a set of ethics that works in conjunction with this measure. That is how I understand and view this situation.
What do you see as the process? Please comment.
What do you see as the process if Bill C-15 were in place with the ethics commissioners, replacing the ethics counsellor? I would expect, or I would hope, that there would be ethics commissioners, perhaps three — one for each House and one for the Executive.
Could you give us your view of how this measure could work?
Ms. Champagne-Paul: First, the Lobbyists Registration Act, LRA, and Bill C-15's proposed amendments to the act will work separately from the ethics package. Should the ethics package be adopted, there will be consequential amendments to enable the LRA to continue to work. In my view, they are basically separate and the LRA would be able to work.
Senator Stratton: I am looking at and trying to understand how you would perceive that working? There would be, in essence, perhaps three ethics commissioners. I am asking you to look at that supposition. It would appear that you would be looking at working with three ethics commissioners, as well as trying to run your shop. How do you see that relationship working?
Ms. Champagne-Paul: Under the Lobbyists Registration Act, there are two functions. First, the registrar is responsible for the application of the registration requirements. In respect of the Lobbyists Code of Conduct, as you well know, under the current regime that is the responsibility of the ethics counsellor.
I presume that, with the ethics package, if and when it is enacted, the portion of the act that governs the responsibilities for the application of the registration requirements would continue.
As far as the application of the Lobbyists Code of Conduct, I would presume that the new ethics commissioner would be substituted for the current ethics counsellor. However, that is speculation. I believe that is how it would work.
Senator Stratton: How does this system work now with the ethics counsellor? Does your department have anything to do with the office of the ethics counsellor, or are they totally separate?
Ms. Champagne-Paul: There is uniformity, if you wish. As a registrar, I provide a form of support. I am responsible for ensuring compliance with the registration requirements. I will support the ethics counsellor in his review of cases where there may be a breach, or an allegation of a breach, to the Lobbyists Code of Conduct by ensuring that the individual against whom the complaint is made is, in fact, a lobbyist.
I am not sure that I am answering your question, but that is how it currently works.
Mr. Pierre Legault, Senior General Counsel, Industry Canada: If I may add to that, the ethics counsellor is also responsible for editing and creating a lobbyist code that applies to those who register. Thus, there has to be a close working relationship between the two in that respect.
As far as what will happen in the future, it depends to a great extent on what the House of Commons and the Senate decide in terms of a system.
Senator Stratton: I appreciate that.
Senator Robertson: In the legislation, there seems not to be penalties for lobbyists who are in violation. How will that be handled?
Ms. Champagne-Paul: There are penalties set out in the existing Lobbyists Registration Act.
Senator Robertson: Could you review them for me?
Ms. Champagne-Paul: There are two kinds of occurrences that could warrant penalties: failing to register and knowingly providing false information.
Where such allegations exist, I, as the registrar, would review the matter to ensure that the facts would support such allegations. The matter would then be referred to the Royal Canadian Mounted Police, RCMP. If the case is prosecuted, the penalty for a failure to register could be a fine of up to $25,000 and/or imprisonment of up to six months. If there has been a provision of misleading information, then the penalties could be as much as a fine of up to $100,000 and imprisonment of up to two years.
Mr. Legault: There is another aspect to this issue, which is the violation of the code of conduct for lobbyists, as well. The penalty there is public scrutiny and a report to Parliament.
Senator Joyal: At the top of page 4 of the French version of the presentation, we see a reference to the underlying principle of the law, which I understand to be the Lobbyists Registration Act.
[Translation]
You mentioned the principles underlying the act.
[English]
I am intrigued by the underlying principles. Could you expand on those underlying principles? If you refer to them, you probably have a clear idea of those principles.
[Translation]
What would those underlying principles be?
[English]
That would help us to understand the essential objective of this bill. I have read the bill, as have my other colleagues. We can do a surface reading of it. However, it is important to understand what we are doing in the system. To understand the system, we must understand the underlying principles, as you refer to them in your statement.
Ms. Champagne-Paul: The four key underlying principles that I referred to in my opening statement are basically part of the preamble to the Lobbyists Registration Act as currently exists.
These four basic principles are: first, free and open access to government, which is of major importance to public interests; second, recognition that lobbying as an activity is a legitimate activity; third, transparency — the act specifies that ``whereas it is desirable that public office holders and the public be able to know who is attempting to influence government''; and fourth, that wherever a system of registration is put in place for paid lobbyists such system should not impede the free and open access to government. This fourth item ties in with the first, which is free and open access to government.
Those are the four key elements that guided the proposed legislation and continue to guide Bill C-15 that is before you today.
Senator Joyal: Did you not judge it appropriate, in your revision of the implementation of the bill since its adoption in 1985, to add other principles in the context of the overall government package to improve ``transparency entrusted to government activities,'' including members of the House of Commons, senators, ministers, political parties and the whole group of initiatives that the government has tabled in the other place and some of which is before the Senate at present?
My point is that we must go one step further, that is, the principle that justice is not only done, but also that it appears to be done. In other words, there must be a principle. I hate the term ``ethics package,'' but for the sake of another word I will use it. In the ethics package pertaining to or applying to MPs, senators and ministers, justice appearing to be done is a fundamental element of the trust that there is a neutral element of appreciation in the system.
Many of us who have been involved in public administration, be it at the provincial or federal level, understand that there is a vast area of decision making in the hands of public administration. Most decision-making activity is in the hands of public administration. Ministers are deemed to be responsible, but most of the time, and I have been a minister, we are faced with a decision that has already been taken and we must stand by that decision.
In my opinion, the principle underlying lobbyist activities must be of a comparable and demanding nature of public administration on those elected and those appointed and who are answerable to the public.
Members of the House are answerable directly to the public through the electoral process. Senators are answerable to the house and to the other place through their decisions because they cannot act alone. Ministers are directly responsible to the House. Public administration is not directly responsible to the public directly or in the system. It is only through the ministers that they are responsible to the public.
There is an underlying principle that the public administration must appear neutral and motivated solely by the service of public interest. The gist of lobbyists' activity is to speak for limited private interest. We must understand the dynamic. The dynamic is that we have the administration responsible for the whole of the citizenry, in terms of public administration, and then you have the lobbyists who are a small sector of the public interest, limited to professional, economic, social or cultural interests.
It is important to maintain the trust, first and foremost, given to the public administration. When we are lifting the bar for members of the House, senators and ministers, my question is: Should we not lift the bar of public administration to the same level? Should there not be another underlying principle, or ``whereas,'' in the bill stating clearly that the service of public interest is the first and foremost interest of public administration and that this is the criteria by which the system must operate?
That is an important element, if we are to try to improve transparency and the trust in public administration, and as such should be reflected in the body of the proposed legislation.
Would you comment, please?
Ms. Champagne-Paul: The beginning of the question refers to the evolution of transparency that occurred over the course of the 1980s and that you would have hoped that the transparency would have kept up to date with this evolution. In my view, the transparency concept that is one of the major underlying principles of this proposed legislation has kept up with this evolution.
When the first Lobbyists Registration Act was enacted in 1988-89, it was a bare-bones type of registration requirement. More or less, what lobbyists would disclose was what one might find on a business card, their name, address, and phone number.
In 1993, 1994 and 1995, when there was a parliamentary review of that piece of legislation, it was felt that the transparency issue came to the fore by requiring a more substantial disclosure requirement. Today, not only must lobbyists provide their name and business addresses, but also they must disclose the names of their clients. They have to disclose the purpose of their mandate. If there are any corporations involved, they have to disclose the name of any subsidiaries or parent company that may benefit from these lobbying activities, as well as the funding that they may receive from other levels of government.
To this point, this is what we have right now. In the current Lobbyists Registration Act, we have seen a higher level of transparency. We have seen in our experience to date with the current system that it is very successful and has worked well. With the public register, people can go on the register and find out all the information they want. Bill C- 15 is now proposing to provide more transparency with the recent amendment brought in from the House about the disclosure of the description of the former position that may have been held by in-house lobbyists.
As far as the public administration, they have to meet a certain bar of ethics, I suppose is one way of putting it. There is a code for public office-holders, for public servants, a code of ethics that requires public servants to abide by a certain standard of conduct.
Senator Joyal: Mr. Legault appeared in the House with the ethics counsellor, and I feel he might be of help to us this morning.
Mr. Legault: As the act stands, it puts the emphasis on the lobbyists themselves to register and indicate whom they will be lobbying. There is already a level of transparency in terms of the public service itself. The question you raised is, in a sense, much broader than simply the application of the Lobbyists Registration Act; it goes to the role of the public service in itself and the trust that the public has to put into it. I think legislation, and probably some reforms that government is proposing in terms of public service at large, will build on some of the ideas you have expressed.
No doubt the right of the public to receive a good service and to have transparency is well served by this piece of proposed legislation. On the other hand, I am not sure that adding this amendment in the preamble in the bill would necessarily add anything to the legislation.
Another issue that arises is how you implement that in the bill. Does it mean that we will have to add all sorts of other provisions and impose obligations on the civil servants to realize that objective? If that were the case, obviously this would become a major initiative and would need lots of re-thinking.
Senator Joyal: I am concerned about that, because clause 3(2), which amends section 4(2)(c) of the act, removes the obligation to disclose a written request from a public office-holder for advice or comment. We are here, as I say, not only to see that justice is being done but to see that justice appears to be done. There is here an opening for a loophole as big as an elephant. That clause exempts the lobbyist from the obligation to register if the lobbyist receives a written request from a public office-holder for advice and comment. A way to avoid the legislation is essentially to say, ``Well, I will write you a letter as a public officer. Give me your comment.''
By the very nature, a lobbyist activity speaks for an individual limited interest, and the public office-holder is there for public interest. Therefore, anything that is being done by a public office-holder that would have the effect of removing him from the application of this bill is, to my mind, contrary to the underlying objectives of the government package to improve transparency.
We are wrestling with that, and this committee has spent hours and hours trying to cope with this. We accept the overall objective of the government. That is why I feel that when a clause like clause 3 gives to a public office-holder the opportunity or the capacity to avoid or to bypass the legislation, the underlying principle should be, ``Listen, sir or madam, you still have the objective of transparency, and service of the public interest is always part of your decision- making process.''
I therefore feel that should be repeated as an underlying objective of the bill — in other words, when you are giving that authorization to a public office-holder and you are requesting us to give you that authorization I have to see what kind of compensation we have in the bill to avoid abuses. As much as I agree with you, we have to tighten the bill. I think many of your proposals tighten the bill, and I certainly support them. Others need to be looked at carefully to ensure that we are not undoing on one hand what we are aiming to do on the other. A principle that maintains transparency in the service of public interest is always an important element of that bill.
The Chairman: Mr. Legault, it was my impression that this bill was intended to close that loophole, not to open it.
Mr. Legault: The sum total of the modifications proposed for subsection 4(2) are, in effect, that we are closing a loophole rather than opening one. Right now, if a public officer-holder communicates with a lobbyist, then that lobbyist would not have to register. We are eliminating that portion of the equation, which means that now, even if there is a simple contact between a lobbyist and a public officer-holder, there has to be a registration. The only exception that we introduced back in is to say that if it is a simple communication to get a piece of information, then you do not have to register, but in all other cases you must register. It is more stringent than it was in the past, or it would be with this amendment.
On the basic principle that public service holders have to indeed show that they have defended the interests of Canadians and acted with proper behaviour, obviously we agree with that. It is part of the essence of being a public servant and being a public service holder as well.
Senator Joyal: Can we come back to the issue of the code? The present Lobbyists Registration Act, in section 10(2), states that the ethics counsellor shall develop a lobbyist code of conduct respecting the activities described. Who has the present responsibility under this bill to improve the code? What is the nature of the code, in other words? It states in section 10.2(4) that the code is not a statutory instrument for the purposes of the Statutory Instruments Act but that the code shall be published in the Canada Gazette.
What is the nature of the code? If you apply a code, it must be binding, it must have legal impact. I do not see anything in the proposed bill that clarifies who has the responsibility for updating the code to ensure that it has that legal impact on the lobbyists and on those who are the object of lobbying activities — and civil servants, for example, are frequently the object of lobbying activities. I am hopeful that lobbyists will appear before the committee to tell us who their first target is when they want to change a legislative decision — is it ministers, senators or public servants?
Could you comment on that in more precise terms?
Mr. Legault: Part of your question has to do with who has authority to amend the code and the power of the ethics counsellor to actually pass the code, which implies the power to modify it as he or she moves forward on the issue. Thus, the ethics counsellor has the authority to modify the code and has that responsibility under the Lobbyists Registration Act.
Senator Joyal: The amendments to the LRA suggest that the registrar, who would assume all of the counsellor's authority and responsibilities, would replace the ethics counsellor.
Mr. Legault: That would not occur under Bill C-15 but would occur under the bill pertaining to the ethics package. There would be some potential changes, but all of this is in a state of flux because there may still be some additional modifications. There could be an impact but someone must be responsible for the code and its amendments in the future.
Senator Joyal: In other words, the ethics counsellor's current responsibilities could be transferred to the registrar. Therefore, the registrar, by assuming those responsibilities, would then have to not only receive the information but also investigate allegations of wrongdoing and complaints.
Mr. Legault: That could be the case, yes.
Senator Joyal: There would be a merger of two distinct functions that were born out of the Lobbyists Registration Act.
I should like to understand what the ethics counsellor is doing with the code as it currently stands.
The Chairman: I have an item that may be of interest to the senators: the Lobbyists Code of Conduct and a message from the ethics counsellor. There are four pages that include the existing code, which may be of value to the senators.
Senator Andreychuk: You have said, Ms. Champagne-Paul, that Bill C-15 would end the existing exemption in respect of a public office-holder initiating contact with the lobbyist. It is my understanding that if a member of Parliament were to have a particular point of view on something and were to contact someone in the constituency, then he or she would have to register.
Ms. Champagne-Paul: Yes, based on the new definition, that person would need to register.
Mr. Legault: You have to be aware of the definition of ``lobbyist,'' which is someone who is paid to make a particular representation. If a member of Parliament were to speak to someone who is not paid about an issue, then the contact does not have to be registered. If someone is paid to lobby and the member of Parliament talks to him or her about his or her representation, then that contact would have to be registered, unless it were a simple communication to obtain information. The registrar or ethics counsellor would issue an interpretation of a simple communication to provide some guidance to lobbyists and to public office-holders.
Senator Andreychuk: If a member of Parliament or senator were to take out a membership in a registered not-for- profit organization and communicate that he or she would take up their cause, would this amendment apply and force disclosure? The not-for-profit organization, I understand, would have to register.
Ms. Champagne-Paul: I should clarify that not-for-profit organizations have always been required to register when the sum total of time spent lobbying is a significant 20 per cent.
Senator Andreychuk: You are now expanding the register for not-for-profit organizations, I understand.
Ms. Champagne-Paul: Under the current act, there are not-for-profit organizations and for-profit businesses to be considered. Bill C-15 is an attempt to establish consistency across those two groups. Currently, with for-profit businesses, it is the responsibility of each individual employee to register. The bill proposes to create consistency for businesses and organizations in the manner that they will meet the registration requirements.
Senator Andreychuk: To clarify that, if a member of Parliament were to advocate on behalf of a registered NGO, does that person's behaviour change in any way because of Bill C-15?
Ms. Champagne-Paul: Are you referring to the member of Parliament?
Senator Andreychuk: Yes.
Ms. Champagne-Paul: I would say, no. Basically, the individual member would probably be doing that as part of his constituency work. I would presume that the member of Parliament in this instance is not being paid by the NGO to do this. I should also mention that you have to be careful in respect of the code of conflict of interest for public office- holders. There are certain outside activities that a member of Parliament may or may not be involved in because it may cause a conflict of interest. I should mention that, as well.
Senator Andreychuk: The Lobbyists Registration Act came to be as a result of a democratic principle that people should have access to their governments to influence their governments in directions that they deem advisable or worthy. There was a sense that some people had greater access than others and, therefore, transparency was necessary. Registering lobbyists would create greater transparency, which would be in the public interest.
You mentioned four principles, the first of which was free and open access to the public. How have you gauged, since the introduction of Bill C-15, an improvement in freer and fairer access by the public to decision making of the government? I often still hear that lobbyists have more influence over governments than the average person who tends to want to communicate directly with a minister or with the Prime Minister. That has been fixed in people's minds when ministers and the Prime Minister say that they have consulted stakeholders, which usually equates to those who have somehow registered and have an interest in the decision. Taking those two comments into consideration, how have you gauged that this bill actually works in favour of better democratic principles of free and fair access to all?
Ms. Champagne-Paul: Well, I may mention that we have a public register for the registration of lobbyists. The minute we receive a new registration, we review it internally to ensure that it is complete. Once we validate and accept it, the registration is immediately placed on the public register that is accessible on the Internet. Anyone can look at who is doing what. Anyone can access that. That, in and of itself, goes a long way to ensuring that everyone knows what is happening to enhance transparency.
Another aspect I could mention is that lobbying is actually a positive function that is being performed because it allows an exchange of information. It may appear in some circles that lobbyists are getting more ear time, but the reality of it is that at least it is known what they are speaking about, and it is also ensures a free exchange of information so that the public office-holders get a view of both sides of the proposals.
The other point I should mention is that, during the parliamentary review, the Standing Committee on Industry, Science and Technology asked the government to conduct a study of the rate of compliance with the legislation, which the government did. We retained the services of a firm that conducted that research and communicated with various interest groups to determine the rate of compliance. The outcome was that they felt that there was a good rate of compliance, except perhaps in some of the further little cities or regions. In metropolitan areas like Toronto, Ottawa, Montreal, lobbyists know the requirements and know their obligations and abide by them. On the whole, I can say that, in our view, there has been a good rate of compliance. This goes a long way to saying that it also ensures that the transparency requirement is complied with.
Transparency, I believe, is the whole underlying principle and spirit of the legislation and goes a long way to ensuring that people know what is going on. They can contact their MPs or whichever public office-holder they feel needs to be contacted if they are concerned by some of the information they have been apprised of by reviewing the register.
Senator Andreychuk: Do you know of any research conducted anywhere in Canada looking at whether the Lobbyist Registration Act has increased the ability of average citizens to influence their governments — that is, the government taking in the national interest or just the public good vis-à-vis special interest groups and their particular point of view on a particular piece of legislation?
Ms. Champagne-Paul: Senator Andreychuk, I am not aware of any.
The Chairman: I have two questions, one of which follows along from Senator Andreychuk's questions.
I gather the purpose of this bill mainly was because intent is almost impossible to prove. You are trying, therefore, to remove the intent part of this and to tighten the whole thing up. That leads me to wonder if anyone has ever actually been charged.
Ms. Champagne-Paul: Madam Chairman, one of the primary reasons for this bill being here is the major tightening or strengthening of the enforcement procedures of the act. At one point, we became apprised that there was an individual who had been conducting some lobbying activities and had failed to register. We had reviewed the matter, and in our view all the activities did point to the need for a registration. This matter was referred to the RCMP for further investigation. At that time, the Crown prosecutors looked at the current language, which is that anyone who basically communicates with regards to modifying legislation, regulations, proposals for policies and whatnot, in an attempt to influence, needs to register. In light of that language, the Crown prosecutors were not convinced that they had sufficient evidence to prosecute. We had to demonstrate intent, and that is very difficult.
Bill C-15 removes this concept of attempt to influence. Therefore, if there is ever a breach or a failure to register, you will still need to establish beyond a reasonable doubt that a communication took place with regards to the proposals, but it will be a lot easier to establish than it is under the current legislation to establish beyond a reasonable doubt the intent to attempting to influence.
The Chairman: In other words, it did not succeed?
Ms. Champagne-Paul: It did not succeed.
The Chairman: You have described two kinds of lobbyists. One you define as in-house lobbyists who work for not- for-profit organizations but spend more than 20 per cent of their time lobbying, and the other is people who work for lobbying companies or groups of lobbyists, which are professional lobbyists employed by businesses. You have also said that this bill is an attempt to establish consistency between the two groups. It seems to me that it does not.
The amendment that was made over in the House of Commons says that in-house lobbyists who formerly worked for the Government of Canada must provide information on the positions they held. Do the professional lobbyists also have to provide that kind of information?
Ms. Champagne-Paul: No, Madam Chairman. Let me clarify. When I said that there are two groups of lobbyists, I should have said that currently there are three groups. There are the consultant lobbyists, which are the professional lobbyists. There are in-house lobbyists who lobby as employees of businesses, and there are in-house lobbyists who are employees of non-profit organizations.
The Chairman: This amendment applies to both groups of in-house lobbyists, but it does not work for the others?
Ms. Champagne-Paul: That is correct, Madam Chairman.
The Chairman: For the third group, there is not equity. Why not?
Ms. Champagne-Paul: This is an amendment that came from the House. We were not consulted on this. This was just basically brought in.
The Chairman: Do you agree with this amendment?
Ms. Champagne-Paul: We basically felt that the regime in the system and the disclosure requirements under the current legislation were sufficient, and so did the standing committee in its report tabled in 2001. It felt that the current disclosure requirements for lobbyists were sufficient. We were in agreement with the committee's conclusion at the time. However, if this committee feels that you wish to proceed, we will be able to administer it.
The Chairman: You have to administer two thirds of it now in any event because this amendment has passed the House of Commons. The amendment, for those of us who have not really been following along the whole thing as we go, is that the in-house lobbyists would have to list previous positions with the Government of Canada, but this does not apply to professional lobbyists.
Ms. Champagne-Paul: That is correct.
Senator Joyal: I should like to return to the issue of the code. It is an important element to understand. I think my colleagues will appreciate that the code of conduct — I thank the chairman for having circulated it — is not a binding document of the same nature of a regulation since it is not a statutory instrument. The chair will remember that in her other incarnation, in the Standing Senate Committee on Legal and Constitutional Affairs, we discussed that a regulation, or a provision providing an obligation in the nature of a regulation, is binding in the courts and that the courts have the responsibility to implement it.
The proposal that you have brought forward does not address the issue of changing or tightening the nature of the code, or giving to the code a legal, binding nature or obligations on those to whom it applies.
As I understand the legislation, the only penalty that a person might incur is on the basis of the other sections of the act and not the code as such. In other words, a person can be fined if he or she breaches the act but not if he or she breaches the code of conduct. Am I right in interpreting it that way?
Ms. Champagne-Paul: Yes, senator, you are correct. The current legislation requires that, in the event of a finding of a breach to the code of conduct, the ethics counsellor is obligated to prepare a report of his findings, and the report is tabled in Parliament.
Senator Joyal: In other words, the only sanction for anyone who does not abide by this code that we have before us is essentially a report made by the present ethics counsellor to the registrar general who happens to table it in Parliament. That is essentially the sanction, is it?
Ms. Champagne-Paul: That is correct.
Senator Joyal: There is no sanction, for instance, to prevent someone from lobbying for a year, for example, or whatever penalty one can think of, if there is a serious breach of the code. In other words, there is an investigation by the ethics counsellor, and the report of the investigation that sets out that there has been a breach of the code will be given by the ethics counsellor to the minister, who will table it in Parliament. Am I right in saying that there is no prosecution or penalty for any breach beyond what Parliament can decide to do?
Mr. Legault: You are right, senator. The only additional comment we can make is that with the proposals in this bill if the ethics counsellor finds that a criminal infraction or another offence has been committed he has to refer the matter to the Royal Canadian Mounted Police and, obviously, there would be an investigation. That would not be a breach of the code itself.
Senator Joyal: It would fall under section 121 of the Criminal Code.
Mr. Legault: Yes, or some other infraction.
Senator Joyal: We are now dealing with criminal matters, not matters of ethics.
Mr. Legault: That is right.
Senator Joyal: When you reviewed the implementation of the code, did you find any report to the registrar by the ethics counsellor that was tabled in Parliament over the course of the past 15 years or so that the bill has been in place?
Ms. Champagne-Paul: To date, no report has been tabled, although there were some allegations of wrongdoing. However, upon review, it was concluded that in all instances there were no breaches.
Perhaps this reflects the fact that lobbyists know their responsibilities and obligations. There is an institution called the Government Relations Institute of Canada, which has adopted its own code of conduct. Many firms or associations that represent lobbyists have adopted codes of conduct to ensure that they follow ethical standards.
This demonstrates that, although there have been no criminal sanctions tied to breaches, the fact remains that we are dealing with an ethical group that knows what the requirements are. I gather that the potential for the tabling of a report in Parliament for them would be detrimental to their reputation and probably to their livelihood in the future.
Senator Joyal: In your previous answers, you referred to the commissioning of a study to evaluate the impact of the way the objectives of the bill have been served generally. Would it be possible to share that study with us?
Ms. Champagne-Paul: Yes. The report can be found on our Web site. If you wish, however, I can undertake to provide members of the committee with copies of it.
Senator Joyal: If it is on your Web site, we will get to it.
The preamble to the lobbyist code of March 1, 1997, which was circulated by the ethics counsellor, referred to the principle I was explaining at the beginning. The principle I was explaining at the beginning is dealt with where the ethics counsellor, under the preamble to the Lobbyists' Code of Conduct, writes that the code 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.''
That is in better terms than the way I tried to explain it earlier. Since we are reviewing the act, this is an important principle to interpret the first four underlying principles that are the overall objective of the code, which is to ensure that public trust in the decision making is satisfactory, especially at this very moment when we are trying to improve transparency and the confidence in those who make decisions on behalf of all Canadians.
I think it is important to ensure that this becomes part of the bill itself. It would clearly state that in the relationship between a lobbyist and public administration there has to be a balance between private interests and public interests. This bill, and your amendments, tries to balance that because a citizen who happens not to have the capacity to go through a lobbyist wants to be sure that those who will decide and those who will be the object of lobbying will always act to serve the public interest.
It seems to me that it is a very fundamental point, as much as you recognize the legitimacy of lobbying and the publicity of the lobbying, that you recognize, too, at the same time, that the person who is the object of a lobby has always to act in serving the public interest, and in fact the code states that. If the code states it, it should be in the preamble of the bill as well. This seems to me to be clearly what the underlying objectives — to use your own terms — should state clearly, if we want to ensure that we are trying to improve the system and give a fair chance to everyone. Essentially, that is what we are trying to do here, not to prohibit lobbying and not to make it more difficult as much as a reasonable limit to it but, on the other hand, ensure that there is a balance in all that.
The legislation was adopted in 1985, and implemented in 1987, was it not?
Ms. Champagne-Paul: In 1988.
Senator Joyal: It took 10 years to get a code of conduct. I feel there is something fundamental that we have to restate in this overall objective of trying to improve the system in a responsible way. We are not hurting the principles of the system by saying so, we are just restating what the ethics commissioner himself saw as being one of the key objectives of the overall initiative.
The Chairman: I believe you are correct, Senator Joyal. However, the bill we are now dealing with only opens the third paragraph of the preamble. It does not open the entire preamble. Perhaps we should stick to the bill before us.
Senator Joyal: I do not think there is anything in the Royal Recommendation to prevent us, since the preamble is open. The preamble of the bill is open and if the preamble is open it means that it can be debated and amended. The Royal Recommendation does not exclude that, the way I read how we have proceeding.
The Chairman: I believe it is just the third paragraph, but we will have to check into that. You may well be right, senator.
Senator Joyal: There is also the capacity to add a preamble when there is no preamble to a bill. The chair will remember our previous discussions in that regard.
The Chairman: Far too well.
Mr. Legault: The modification being proposed to the preamble is to remove the expression in an attempt to enhance. That is the only object of this amendment.
As to the suggestion to perhaps modify the preamble in the way you have indicated, senator, I think the chair has raised an issue that will be reviewed. I believe it is up to this committee to make the appropriate recommendation in that respect.
Senator Joyal: Will you comment on the very nature of the code, that the code is not a regulation, then as such it does not have a legal binding effect on those to whom it applies?
Mr. Legault: You are right to say that the code is not a statutory instrument. At the same time, there is also a provision that says lobbyists have to abide by the code. Thus, there is an obligation for them to abide by it, but the sanction itself is only to find that a report would be ultimately tabled in Parliament and there are no other sanctions. There are no fines or jail terms, et cetera.
Senator Joyal: Do you feel that in 2003 there is no need to give to the code a binding effect on those to whom it applies after so many years of use of the bill?
Mr. Legault: The experience we have had, first, there have been few cases that have been raised with the ethics counsellor. There have been a few investigations and on the basis of those investigations it was found that the facts did not support a violation of the code. Our experience has been that there has been no real demand for this. We have not had big cases that required sanctions per se. Our experience in that regard is limited.
Ms. Champagne-Paul has mentioned that, in effect, in addition to there not being that many cases, the public scrutiny that would be brought upon those individuals who might violate the code could possibly entail some sanctions against them — possibly lack of contract or it will ruin their reputation, et cetera. It was always felt that this was enough.
If there were a big non-compliance problem with respect to the code, perhaps then, yes, it would be indicated to see if additional measures would be necessary to limit those violations or that behaviour, but that has not been the case thus far.
Another difficulty that might arise is the extent to which you would be able to enforce such a code. It becomes at that point quite difficult, possibly, and you might need some additional investigative powers. You would then raise a few other questions as to exactly how you would want to do that and what you would need to actually do it.
At present, however, there have not been enough cases to justify stronger measures. People have been fairly compliant.
Senator Andreychuk: How many cases have been cited in the report since the code has come into effect?
Mr. Legault: Madam Champagne-Paul said there have not been cases reported but there have been cases that have been investigated. I do not know the number of cases though.
Senator Andreychuk: You were saying the sanction is the report and the publicity, and so how many cases have been cited and reported, and therefore your argument would be strengthened to say that that public scrutiny works?
Mr. Legault: As I said, there have been no reported cases, but there have been some cases investigated that were found not to be in violation of the code. That, in itself, shows there are no cases where people were shown to be in non- compliance of the code.
Senator Joyal: There is always the theory of whether the glass is half full or half empty. There is no violation of the code so the code is perfect. Perhaps it is because the code does not have a proper set of ``penalties'' with any reference to the Criminal Code that is not applied, since the overall sanction is so important that in fact everyone will refrain from the activity.
It is a belief and in good faith under human nature, and I am one of those who likes to believe that human nature is good, but we are dealing here in the field of very important interests. Perhaps we need to know how much lobbyists are paid and how important are the economic activities. We have not discussed that to this point, but that is part of the reality of all this.
Mr. Legault: Indeed, the ethics counsellor has investigated some cases. He has used his powers. He has looked into certain matters and ensured that the code was abided by when he received some complaints from people who were concerned about the behaviour of a certain party. That part has certainly worked.
Senator Joyal: There has been a study, as you mentioned, Madam Champagne-Paul, by the Industry Committee in the House of Commons in June 2001 on the evaluation of the implementation of the act, as the act provides in its section 212(1) that provided on the expiration of four years after the coming into force of this section there was an evaluation by the House of Commons committee, and there were recommendations. I understand that the standing committee made 24 or 25 such recommendations. Would it be possible to provide us a quick chart on which recommendation are acted upon in this bill and which ones are left pending? Would it be possible to obtain a small chart so that we know where this committee report has been acted upon in this bill and which other ones? I could do it myself if I had the time, but since you are professional experts in that area I would rely on your evaluation.
Ms. Champagne-Paul: It would be our pleasure to provide you with such a chart, senator.
The Chairman: Thank you very much for appearing before us this morning, Madam Champagne-Paul, Mr. Legault and Mr. Bergen.
The committee adjourned.