Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 13 - Evidence, May 6, 2003
OTTAWA, Tuesday, May 6, 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, We have before us witnesses on Bill C-15, to amend the Lobbyists Registration Act.
Mr. John Scott, Representative, Government Relations Institute of Canada: Honourable senators, both Ms. Carol Presseault and I represent the Government Relations Institute of Canada. I am also general counsel of GPC International, perhaps the only general counsel of a lobbying firm in Canada.
Mr. Peter Clark, President, Grey, Clark, Shih and Associates Limited: Madam Chair, I was asked to be present to answer questions; I have not prepared any comments. I went through the deliberations of the other place, of their committees on the amendments to the act.
I have reviewed the deliberations of the other place concerning the amendments to the act and generally I have no problems with the bill as it passed the House. It provides for increased transparency and flexibility. It builds on the fairly strong electronic structures that are already in place in the Office of the Ethics Counsellor to ensure that Canadians know who is lobbying whom about what.
I would be pleased to answer any questions as they relate to my practice. I was asked to come last week and it was not suggested that I needed to prepare any remarks. I am quite prepared to share my experience with you on any of these issues.
The Chairman: Ms. Presseault, I hope you came prepared.
Ms. Carole Presseault, President, Government Relations Institute of Canada: Honourable senators, I have a prepared statement. Our code of ethics, our Code of Professional Conduct for our members, has been attached to the distributed copies.
I am the volunteer president of the Government Relations Institute but I do have a day job. In my day job, I am an association lobbyist. I have been for about a decade. Most recently, I am with the Certified General Accountants Association of Canada where I am director of government relations. In answering your questions later, my experience will have come from that association background.
We are pleased to participate in your deliberations today.
[Translation]
We have continued to take part in that parliamentary review process because we believe it allows several voices to make themselves heard on the issue of an open and transparent government, which is paramount for our members. The outcome of that parliamentary review has been, in our view, a legislation that recognizes that lobbying is a perfectly legitimate activity and that transparency is a matter of public interest. We think these two principles achieve the right balance while ensuring that government relations professionals are able to serve their clients and employers in a diligent, efficient and ethical manner
[English]
The Government Relations Institute of Canada was established in 1994 to represent registered lobbyists in Canada. Today we have about 130 members who form a cross-section of consultant and in-house professionals. We represent virtually all sectors from small and large corporations and non-governmental organizations, to national and international government relations firMs..
Our mandate is threefold: advocacy, networking and professional development. GRIC promotes high standards for its members. In fact, every member must endorse the Code of Professional Conduct on an annual basis when renewing his or her membership. All members must be registered lobbyists. The Code of Professional Conduct requires compliance with the Lobbyist Registration Act. The code establishes the benchmark against which the competence and conduct of individual members is measured.
We actively seek out the promotion of best practices for our members. We recently participated, along with parliamentarians, in a roundtable discussion led by the Public Policy Forum. We examined ways of improving the relationship between government relation's professionals and parliamentarians. Last January, we organized a successful one-day conference with the Canadian Society of Association Executives that brought together practitioners to share best practices.
[Translation]
We foresee a clear role for now, which is to keep our members informed about changes to the Lobbyists Registration Act. We closely monitor developments relating to the Act and maintain good relationships with the Ethics Counsellor and his team. In that respect, they have helped our Institute to gain a better understanding of the effect of the laws, regulations and guidelines that govern the practice of government relations. We believe these activities are tangible evidence of our commitment to foster an environment conducive to the implementation of best practices.
[English]
As a professional association, we participated through the entire review process of the Lobbyists Registration Act that resulted in Bill C-15. We must say that what is before you does not reflect all of the concerns that GRIC has presented to the Ethics Counsellor and the Registrar and to the House of Commons Standing Committee on Industry.
We are concerned that Bill C-15 may result in a number of potential problems in its application that could impede free and open access to government.
We urge this committee to recommend that the registrar closely monitor the impact of the proposed amendments and the rates of compliance be made available. An effective act must be clear, fair and, most importantly, have a high degree of compliance.
We support the enactment of Bill C-15 without further amendment considering the extensive review the legislation has undergone. We urge this committee to endorse Bill C-15 without changes but we do want to note that you may have certain concerns that could result in the bill being referred back to the House with recommended amendments. If the committee does decide to return the bill to the House, we feel it would be of value to the committee to consider the following four issues that are still of concern to our institute.
The four issues are the definition of lobbying; the removal of the registration exemption for submissions made in response to written requests for advice or comment from a public officeholder; the new filing requirements for corporation lobbyists; and the new requirement that in-house lobbyists report public offices previously held.
Since the completion of the House of Commons review of the act in June 2001, and in the spirit of the recommendation that further consultations be undertaken to resolve the enforcement issues arising from the use of the phrase "in an attempt to influence,'' GRIC has worked with the Ethics Counsellor and others to find a middle ground, a definition that would meet the need of both legislators and practitioners. Today we are prepared to accept the proposed definition contained in Bill C-15, "communicate with a public office holder.''
We believe additional guidance is needed in interpreting specifically what activities constitute lobbying. In order for the legislation and the registry to be meaningful, only those activities that constitute legitimate lobbying activities should be reported.
Again, clarity is a critical factor in ensuring compliance. To this end, we wish the committee to consider instructing the registrar to promptly issue a directive clarifying what constitutes a communication restricted to a request for information that will be exempt from registration under the proposed section 4(2)(c) of the act.
[Translation]
I would now like to address our second point. The removal of old section 4(2)(c) of the Act provides for the exemption from registration when a submission is made by an individual or organization for advice or comment on a government issue at the specific written request of a public office holder.
[English]
The Ethics Counsellor has indicated that this section creates a potential loophole for individuals or organizations and that a valid written request for comment or advice from the government on a particular issue opens the door for much wider and unintended comment. We submit that it is a matter that can be addressed by a directive from the registrar on the limits of any such submissions that would comply with the exemptions under the act.
Every single day, government officials contact respected community and business leaders, special interest groups and representative associations for the valid insight those individuals and organizations can give to assist public office- holders in assessing issues of public importance. Equally as important, parliamentarians consult regularly with constituents on issues before coming before the Senate and the House.
The removal of section 4(2)(c) would make it a registerable activity to reply to written requests for such comment or advice. We anticipate this would cut off or at least put a chill on that valuable and necessary dialogue between public office-holders and the public that is initiated by government in the interests of better understanding issues with which it is dealing.
We wish the committee to consider retaining and not deleting section 4(2)(c) of the act as a valid exception from registration and to consider instructing the registrar to issue a directive clarifying the limits of an acceptable, non- registerable submission made in compliance with old section 4(2)(c) in response to a written request for advice or comment from a public office-holder.
I would like now to address our third point, the proposed changes for in-house corporate lobbyists. The legislation proposes to amend the current practice and create a single filing process for corporate lobbyists that is similar to the current method for organization lobbyists. Under the proposal, the senior officer is made responsible for filing and others who report to that senior officer will have to be listed on that registration. For corporations these changes, combined with the proposed changes to the definition of what constitutes lobbying, are quite substantial.
Indeed, the changes, coupled with the new definition of lobbying, may require companies that have never previously filed under the act to be brought into compliance.
Failure to comply has direct penal provisions that have been enhanced under the new, amended provisions of the act. We wish the committee to consider the two following submissions.
In order to assist transition and to better facilitate compliance with the new requirements for in-house corporate lobbyists, consideration should be given to extending the period required to file returns under transitional provision clause 16 of Bill C-15 from two months to six months.
We also recommend the federal government take steps to broadly notify Canadian corporations and other firms operating in Canada of the changes to the act so that they can take the appropriate steps and bring their corporations into compliance as required under the new act.
Our fourth point deals with the proposed amendment to add a new section 7(3)(h.3) requiring that in-house lobbyists report and list former public offices held. It is our contention that this amendment is superfluous and creates an unnecessary burden on registrants. As we understand it, this would necessitate an individual to report on every previous public office held, even back to a summer job. They would have to do so for the rest of their lives. There are no reasonable parameters defining this addition to the bill introduced in the House.
More important, however, is the duplicate nature of this amendment. Former public office-holders are already subject to the Conflict of Interest and Post-Employment Code for Former Public Office Holders. The amendment does not add anything in terms of transparency and the public interest. We therefore wish the committee to consider deletion of new section 7(3)(h.3) from Bill C-15.
In conclusion, we also recommend that this committee urge the government to clearly articulate its plans to inform all stakeholders of the impending changes to the legislation to ensure a smooth transition process. The Government Relations Institute of Canada is willing to assist the government in this endeavour.
I look forward to answering your questions.
The Chairman: Thank you, Ms. Presseault. I doubt that people would have to report summer jobs held because the definition of "public office holder'' means a minister of the Crown, a parliamentary secretary, a minister of ministerial staff, except public servants. It goes on from there. It does not include summer jobs as a high school student.
Mr. Scott: I believe you are reading from the definition of "public office holder'' and it says, "any officer or employee of Her Majesty in Right of Canada and includes the others.''
"The others'' are just an expansion, but the true definition is "any employee of Her Majesty.''
The Chairman: We will come back to that. Someone is speaking over my shoulder here as we carry on with this exchange.
Senator Di Nino: One of the concerns that was expressed during the hearings in the other place dealt with the amount of money that lobbyists spend in their efforts to approach the government. There has been a suggestion that spending $5,000 versus a half-million dollars is a totally different lobbying attempt. It has been suggested that there should be some consideration given to including a certain level of money that would have to be declared by the lobbyists. Would you like to comment on that?
Mr. Clark: Senator, when we discussed that in the House committee, we pointed out that there are requirements in the United States to report that type of activity and the expenditures if you are representing foreigners in the United States. We found that it depends very much on how you define the activity.
Activities can be structured so that a very small part qualifies as lobbying. You could report that and have a lot of other funding that would be for non-registerable activities that would not be reported. It is extra reporting. It can be done. We just did not see where the benefit of it. It is not a big issue in my practice anyway because we do not get involved in campaigns; we deal more with particular issues.
There is a reporting system in the United States that comes about six months after the fact. It is very specific but it relates primarily to what one does for foreigners, not what one does for domestics.
Mr. Scott: I have been to Washington to look at and to understand more clearly their situation. My understanding is that, no matter how much they try to legislate that, it is very difficult to come up with information that is useful and of value to the public.
With respect to the Canadian situation this matter did arise at previous committees. GRIC has commented on that. One item I would bring to your attention is that in our own Code of Professional Conduct, under "General Conduct,'' it states that:
Members of the Institute shall:
(f) Disclose fully to clients all fees and charges which charges shall be fair and reasonable.
We are making a commitment that we will not do anything nor expend more than might be necessary to achieve the objectives of the client.
When you move over to talking about professional lobbyists disclosing the fees that their clients are paying, that requirement does not apply to other professions, for example, lawyers or accountants. Lobbyists are put at a distinct disadvantage in terms of how they represent their clients; their confidentiality is at risk. We have argued that it is not appropriate, is not necessary and does not add to the lobbying procedure.
Some issues may require $100,000 worth of investment by a client because of the magnitude of the legislative issue and the impact on their industry and their group. We feel it is not appropriate to have some form of disclosure in that area.
Senator Di Nino: There has been suggestion made in the other place that the Quebec rules are much tighter, much stronger. We have heard the suggestion that a lobbyist commissioner should be included in the legislation. Would you comment on that?
Mr. Scott: I have oversight of the Quebec legislation as well within my position. There may be a challenge under that legislation of Charter of Rights and the issue of the potential commissioner having the right to deny a person the opportunity to practice their profession. It is moot at this stage in terms of whether or not that legislation will be upheld. I caution, with respect to that legislation, that it came out of a very specific and difficult situation that arose in the Province of Quebec. The legislation was moved through rather quickly. I know there were representations made, but there may be some weaknesses and I certainly do not think that those standards would apply here at the federal level.
My understanding is also that the registrar and the Ethics Counsellor looked into that as part of their submissions in the other place, and they determined there was nothing that could be brought forward from the Quebec legislation that would enhance the federal legislation.
Senator Joyal: Madam Chairman, maybe I should declare outright that I have a conflict of interest with Ms. Carole Presseault. We worked very closely together in some other life. I am happy to see her here this morning.
Ms. Presseault: I would be prepared to declare that right away if you want to register.
Senator Joyal: That being said, I do not think I have to withdraw from the table. Thank you for your brief because I think it certainly will draw our attention on some essential issues.
I would like to ask you and my colleagues to take page 5 of your brief and especially the recommendation which is in bold letters and which highlights one of the key elements of the new bill that could lead to misinterpretation, confusion and to non-compliance with the proposed legislation. You state: "...communication restricted to a request for information...''
The key word is "information'' and that is a generic term. To communicate with somebody for "information'' could mean almost anything.
As much as I believe it is important that the original act be amended as proposed in this legislation, your approach suggests that the registrar issue a definition or give instruction.
Would it not be better to make sure that everybody understands and put it in the law? No one can ignore the law.
As Mr. Clark and Mr. Scott seem to know, in the American example, we can get inspiration from the American act, the Lobbying Disclosure Act of 1995. The act defines what "information'' is in that context. We are making an exception here; we have to understand what we are doing. We are changing a general opening to try to restrict it to information. Now we want to make sure that there is certainty as to the kinds of information exempted from the legislation.
If we want to have better compliance with the new act, would it not be better to say, as it says in the American Act legislation, that "information'' means:
(v) a request for a meeting, a request for the status of an action, or any other similar administrative request, if the request does not include an attempt to influence a covered executive branch official or a covered legislative branch official or a covered legislative branch official;
You have identified that there is a potential problem. I fully recognize that and I concur with you. You propose a way of addressing it which is essentially an instruction given by the registrar. Since it is a loophole and an exception, should it not be better to define it in the act? As the old principle goes, no one can plead ignorance of the act. If the definition is clearly in the act, no one can go outside of it. That, to me, is the proper way to do it.
If an action is covered by an instruction given by the registrar in the code, that action could become the object of an investigation by the registrar or the ethics commissioner. The sanction for non-compliance would be important, too; it could be publication of a report and so forth.
Have you considered that as being a way of addressing it in a more certain way, in a way that no one can ignore?
Would you like to comment on this proposal?
Ms. Presseault: You have pinpointed the problem, senator. In a sense, the bill before you is casting a wide net in an attempt to clarify the definition and to ensure its enforcement.
We have opted, in a sense, to say that we need more clarity and more discussion, and we need to understand what this means because we think that a blanket registration system will not achieve a meaningful registry. There are a couple of significant problems with the amendments as they stand, for example, on corporations. In terms of being better safe than sorry, you will not register everyone on staff for every activity you have. In order to try to define what lobbying constitutes, in this case we have chosen to define it with "communicate.'' There is still a lot of uncertainty for our members and the people that work in the industry in terms of what, exactly, would constitute a registerable activity.
In terms of the specifics of the American example, I was not part of the conversations that GRIC had in the past but in terms of casting this wide net, it will not necessarily ensure high compliance levels.
Mr. Scott: This was added into the bill, as you may be aware, senator, because of the change in the definition of "lobbying'' and removing the words "attempt to influence.'' We had argued strenuously before the committee in the other place that there might be other ways to define "communication.'' With that said, we agreed and we are going forward.
Yes, this is a concern to us and, yes, under section 10(2) of the Lobbyists Registration Act, it says clearly:
10(2) The advisory opinions and interpretation bulletins are not statutory instruments for the purposes of the Statutory Instruments Act and are not binding.
We do have a situation where, if the registrar were to issue an interpretation bulletin, it would not constitute the law.
We were not entirely confident that the definition of a "request for information'' would be easily dealt with and that, perhaps, it should be more of a moving, developing type of definition once we were able to have the experience of problems that the registrar may run into and being able to change it and adjust and shift it. That was probably the key area in terms of trying to allow some flexibility without the necessity of coming back for an amendment to the act.
The act does have a five-year review provision in it so that we would have the benefit, at the next review, of understanding whether or not the interpretation bulletin was adequate or whether we had come to a clear definition that could then be brought into the act.
This was GRIC's way of allowing the flexibility. An alternative may be through regulation because I do note in the act under the regulations provision that it says at Section 12:
(d) prescribing any matter or thing.
(e) generally for carrying out the purposes and provisions of this act.
Senator Joyal: In one way we a matter of obligation under the act that entails a set of penalties if the obligations are not met. Your suggestion would remove the obligations from the act and put them in the code. Under the code there is another set of compliance obligations.
In other words, we are taking something from the general section of the act, which is part of the law, and we are putting it in the code where the sanctions on the code are different than the ones in the act. We had that discussion last week with the registrar.
The regulations are coming back under the act because a regulation is a statutory instrument and, being a statutory instrument, it is of the same nature as the general act.
Madam Chairman will remember the discussion we had in another committee on this. That is why I feel that the best way to reconcile the two is to go through the regulations, because then we maintain the line in the act and the obligation investigations under the act.
When we put it under the code, however, we are changing the nature of the obligations. It is no longer an obligation under the act; it becomes an obligation under the code and the sanction is different. It might look very foreign for a lot of people but in practical terms, legally it is important. One obligation is under the act; the other is under code and the sanctions are different, depending where the non-compliance is alleged.
That is why my proposal to put it in the act will make it more consistent with the general objective of what we are looking for. I think you have outlined it correctly by trying to put it in the regulation where we bring it back under the act.
Mr. Scott: Thank you, senator. We are looking for clarity just as much as you are.
Senator Joyal: It seems to be an academic problem, but it is not because it is an exception. We are defining an exception and we will define the exception under the code, except we will be defining it under the act.
As you said, we want to achieve transparency and easy interpretation for anyone. When it is defined under the act, it is much easier for everyone to know what the law is because it is contained in the act.
Mr. Clark: The present system is vague as well; it leads to overcompliance and over registration. In my business, you cannot be too careful. You cannot take a chance that your request for information will not lead to a discussion. It very often does lead to discussions about other things, so the conversation may be designed to get a fact. It leads to other things.
We have a tendency to over register because we do not want to take a chance at not being in compliance. That is because of the nature of our business. We are "hired gun lobbyists,'' if you want to call it that, so we tend to attract more attention than people who work in companies or for associations. I think that will continue, whatever the definition is.
Ms. Presseault: I want to caution you, though, that we are trying to fix the definition of "in an attempt to influence.'' That is where the problem is belied.
We need the experience a few years of filings and analysis of what the impact has been. I agree with Mr. Clark that there is a tendency to over register. Without clarity, the new definition will have us all over registering. The registry could be called successful because you may get a 300 per cent or 400 per cent increase in registration. In our office, we have 12 people registering. With the new rules, we will have 25 people registering.
The Chairman: The registrar does have powers given to him under this act. Therefore, his exercise of them will have the force of law, even though the bulletins are neither act nor regulations. Still, his exercise of his powers will have the force of law.
How do you suggest to the registrar that they measure compliance?
How can compliance possibly be measured? You do not know the people who do not register. If they are not registered, you do not have a record of them anywhere. How can compliance be measured?
Mr. Scott: There is a double system to a certain extent because it is a completely transparent system. It is on-line. For example, if a public office holder were approached by someone and decided to determine whether that person is complying, they can determine that within 30 seconds. Therefore, there will be self-compliance to a certain extent by those people who will be lobbying.
We work hard at the Government Relations Institute of Canada to instil that sense of professionalism within our group and our association. If there are any questions or issues that come out, we network. We try to understand that we may be competitive, but we all appreciate the professionalism of our association and what we do.
That will not catch the people who want to go around the law. In such cases, the public office holder, members of our association or through newspaper reports with the registrar will identify it, and we hope that the registrar would come down very hard on the enforcement provisions.
There is an issue with respect to this definition in that if there is any generality present, would it allow someone to skirt the provisions of the legislation? Does that then make it more difficult for the registrar to enforce?
We want the opportunity for the registrar to have clear direction in terms of what they will do when there is a situation that is offside.
The Chairman: How much of the industry do you represent?
Ms Presseault: We have approximately 130 individuals who are members of the Government Relations Institute of Canada. They represent a good cross-section of the lobbying community at the national level. It is a fairly young organization.
We require that individuals are registered lobbyists to become a member of GRIC. We do check when the application arrives that they are registered lobbyists. We require compliance with the Lobbyists Registration Act.
It is through networking and other means that that compliance is assured. The registrar has reported back that there is a good complaint system in place.
The Chairman: How large is the industry? Give me a ballpark figure, please.
Ms Presseault: We represent a good cross-section of the industry. I have not checked the last annual report of the lobbyists registration system to find out how many lobbyists are registered. I would assume that the number is in the thousands.
In our organization, for example, I mentioned that for every 15 people registered, there is one member of GRIC. We represent a good cross-section of the views of the three sectors of the profession: consultant, associations and organizations.
Mr. Scott: It is difficult to know the total number of lobbyists, but it represents thousands of clients across the country. Part of the difficulty is that there may be someone in one of the other provinces or outside of the National Capital Region who is representing someone who would, all of a sudden, be required to register.
With the new legislation, as Ms Presseault mentioned earlier, it will require a great number of additional registrations, particularly with the in-house corporation environment. It will be interesting to see how that increases the number of people who should be registered.
Senator Joyal: Would you be able to tell us what industries those 137 members represent? I understand that your members are individuals, not corporate organizations. GRIC is a person-oriented association. Do you have any idea of the economic or social industries covered by your members?
Ms Presseault: I could probably provide you with a detailed analysis of our members. However, we represent all sections of the industry. The membership includes those from the non-governmental, professional and business sectors. Consultant lobbyists have a variety of clients in all areas. We like to think that our membership is a good snapshot of the entire industry.
Mr. Clark: I would expect that all industries that are federally regulated would have some registered lobbyists under the Lobbyists Registration Act. That is the key.
Senator Joyal: I understand. Is that the criteria?
Mr. Scott: Yes, that is the criteria. For clarification, we have individual members because we reflect the act, which requires individual registration. That is why it is individuals within the Government Relations Institute of Canada.
Senator Joyal: I would like to continue with the concept of communications restricted to a request for information. How would you define the word "information?'' What should it cover and not cover? It has to be defined for greater certainty of compliance with transparency.
Ms Presseault: We deal in a world of knowledge; that is the key piece of our work. We acquire that knowledge through formal and informal means. We acquire that from Internet searches, telephone discussions, print media and a variety of other sources. We also acquire knowledge by communicating with public office-holders.
We are active participants and involved in web searches. A parliamentary Web site is our first tool of choice in preparation for a meeting like this. We find out who the members are and their backgrounds. That is how we prepare our clients for parliamentary appearances and meetings. We track legislation through the parliamentary Web site.
If I go into that which constitutes lobbying, it could be any information concerning the development of a legislative proposal or the introduction of bills. Information is the basis of our work.
The Chairman: Gathering information cannot be registered under this act.
Ms. Presseault: That is my point. The actual communication with a public office holder, I submit, is a small percentage of the work that I do as association lobbyist. The preparation and research time is much greater than the actual interface time. The strategy development, the approach to and analyzing of the issue, our internal environment and the external environment all take a lot of time. The actual interface is a small proportion of our work.
The Chairman: Have you ever had a client for whom all you have done is simply gather information?
Ms. Presseault: I do not work as a consultant lobbyist.
The Chairman: Mr. Clark?
Mr. Clark: Yes, we have. However, when we have had to gather the information from government, in particular on sensitive issues, I have checked with the Ethics Counsellor as to whether or not I should register because of the nature of the information we were collecting. In this case, we were working for Embraer in the dispute against Bombardier and we registered because of the sensitivity of the case, and they wanted us to do was to determine what level of subsidization had been provided to Bombardier.
Now, as opposed to 10 years ago, the majority of the factual information searches that you deal with are performed electronically. When you get into fact-finding now you are also usually trying to look for interpretation. When you start looking for interpretation on facts and policies, it becomes a grey area and I would be much more comfortable registering than not in that case.
The Chairman: When you contact a public office holder what kind of information are you looking for? Are you asking them what they want to hear from your employer?
Mr. Clark: No. That normally would not be the case. Normally, we would present them with a situation and give them our interpretation of how it applies. We would ask them what they think about it and if there is a chance of achieving our objective. We would inquire into the state of the WTO on the issue.
That is not really factual. That is getting into a debate on policy and policy development. That is what we do, and it is difficult. We specialize in international trade.
The Chairman: That is essential information.
Mr. Clark: Yes, it is essential information. Therefore, we register and people know we register. We do not phone anyone cold and ask for information for general purposes. We tell them that we are working for so-and-so. We tell them what our issue is and ask them if they can help us with the facts. We find them very helpful, but they know our clients' name and why we are working for them.
Mr. Scott: It has been very well put in terms of the dilemma under the current legislation the proviso is "attempt to influence''. For example, it was clearer that if you were contacting someone to determine what is the status of the WTO, or the status of something else, that it was not advocating a particular position of your client but it was to be better informed. That would not be a registerable activity. Clearly, under this bill the act of communication is registerable. Whether or not it is just a request for information, it becomes difficult to determine. I agree with Mr. Clark that you would have to err on the side of registration.
There have been many comments made about the number of increased registrations. In the end, that may defeat the entire purpose of the legislation. If you end up with 5,000 registrations, then everyone registers for everything. It may move away from the information that is most useful and most important for the public in determining who are the people addressing specifically issues of the day that public office holders and the public should be aware of. That is a concern that the Government Relations Institute of Canada would have. If it is a blanket registration process, there is less transparency, perhaps.
Senator Joyal: In other words it would be helpful to have some elements of what constitutes a request for information that is exempted from registration. You are saying that when there is uncertainty you prefer not to run the risk. Therefore, in order not to run the risk, you register. You say that if a vast number of people register, we will be diluting the objective of the legislation.
Mr. Scott: Yes, potentially.
Senator Joyal: In other words, you are saying that there should be a clearer definition or elements of understanding information that is neutral. We are talking here about an exemption, which refers to information that is essentially neutral, to help to build the case of your customer. That is the way I understand it. In order to avoid finding yourself in a borderline situation you phone a public servant and ask when the next meeting will take place. That is a rather neutral question. The public officer might tell you that you have not sent the proper document. Your first contact was, or course, to seek neutral information but, being what it is, you discuss it. You cannot refuse to answer.
That is why the definition of information is important for the clarity of the act and for the clarity of the business. We are here seeking to maintain transparency and, in a way, to establish rules of conduct for the business of lobbying in Canada.
This is an important element of the whole dynamics that were centred on the intent, which is difficult to prove. We are now moving to more neutral criteria that is information.
We have removed the words "communication in an attempt to influence'' from the act because that is difficult to prove. It calls upon the mens rea, as is said in the Criminal Code, which is the intention of someone.
How do you prove the intention? It is difficult. We now move it to a request for information, which is more objectively definable.
That is why I feel that if we are to balance the act there should be a definition of "information'' to ensure that you know where the parameters are concerning where you move within your business.
Senator Rompkey: Mr. Scott, you seem to indicate that the code of conduct was not legally binding because of an exemption from the Statutory Instruments Act but that it is published in the Canada Gazette. Is it not true that the code and the directives of the ethics commissioner have the force of law?
Mr. Scott: I cannot comment on that. I was referring to the regulation as to the definition of "information.''
Senator Rompkey: Do you agree or disagree?
Mr. Scott: I would not agree or disagree. I am not too sure either way. I apologize.
Senator Rompkey: I want to deal with two matters: One is set out at page 6 of your presentation and the other on page 8. I begin by noting the comments on page 4:
We support Bill C-15 without further amendment, considering the extensive review the legislation has undergone. We urge this committee to endorse Bill C-15 without changes.
I note that first because I wanted to ask you how strongly you felt about amendments and whether what you want can be accomplished in some other way. Of course, amendments are possible. However, they take time. They have to go through the mill. We all know the realities of public life at this time. Do we want to have legislation that gets through or do we want to put legislation back in the mill and go through it again?
The two things that I wanted you to comment on in that context were, first, on page 6, which has to do with retaining and not deleting section 4. The Ethics Counsellor indicated that there was a potential loophole. In other cases you suggest the committee give instructions to the registrar.
Are there any other ways to achieve what you want other than by amendments; I make reference to page 6 of your brief. The second question is with regard to the deletion of new section 7 concerning the listing of former public offices held.
I note in passing that this got through the House of Commons. I would have thought that if there was a question about that it would have come up there because the average tenure of the member of the House of Commons is six years, as you know. Thereafter, they try to find gainful employment using whatever means they have at their disposal, whereas tenure for the Senate is much longer than that. My point is that if there is a threat, it is to them and not to us. I notice that it got through them and came on here.
I understand the point that you are making. I think it is important to deal with these issues, but the question is how.
Ms. Presseault: What GRIC wants at this point is a legislative framework that is clear and enforceable. A good strong enforceable act is good not only for government but also good for us.
We feel that perhaps some of the four issues that we raised in our submission can be dealt with through directives or with specific instructions by the registrar. We can use the experience of the next few years to analyze the impacts of the amendment and recommend reform or review at the next step.
That leaves us with section 7, the new requirement that was passed at report stage in the House of Commons. I hesitate because I do not know what that requirement intends to do. When I go to the principles or the preamble of the act, I am not sure where that requirement fits in. I do not see how the public interest is served by the specific amendment nor do I see how it improves transparency of the act. There are other things in place such as the post- employment code of conduct and others that cover these areas very well. It would be a mistake to have a Lobbyists Registration Act do more than it is intended to do. It is intended to provide a registry system to ensure open and free access, to ensure transparency and open and free access to government. To have a blanket act that engulfs everything that may be challenging with our system would be a mistake.
On an operational level, there are some concerns regarding the time limitations, and the discussions we have had with the Ethics Counsellor and his office have been to the effect that we now have to re-examine the definition of what a public office-holder is. That is my first question: what does that mean? It is basically everyone who has worked for the government and that does include a summer job. I worked at Agriculture Canada in 1976. I do not have much influence with that department because I have not worked in that area since. I do not want to make light of an amendment passed by the other place, but I fail to see where it fits in the Lobbyists Registration Act when there are other means by which we can deal with the post-employment of public office-holders.
We have submitted that perhaps many of the issues could be dealt with directives. Senator Joyal has raised some interesting points about the regulations, one that we have not considered and one that perhaps merits some consideration at this point.
Senator Rompkey: You mentioned you worked for Health Canada.
Ms. Presseault: I worked at Agriculture Canada as a summer student.
Senator Rompkey: I remember a minister of the Crown who was in office for only 10 days, which could be considered a summer job, I suppose.
The conflict of interest does not require a public admission, whereas this would. It seems to me that would to transparency. If we are into an era now where people need to know, and there is a need for transparency, it seems to me that this goes further than the conflict of interest issue.
Ms. Presseault: It is the issue of casting that net so broadly that it just engulfs everything. It does not serve any real purpose to have all those CVs up on the Internet. This can be addressed by other means. If we are trying to ensure that there is time and space between the public offices held and the profession of lobbying, that is totally appropriate. It is appropriately dealt with through other means. I think the Lobbyists Registration Act does not have to serve everything.
Senator Rompkey: I see the point about clarifying and defining, and I see the need to do that. We have to do that somehow or other, and the question are how. As you mentioned, Senator Joyal raised some interesting points that we should consider.
Mr. Clark: There are two reasons that I do not have any problem with this requirement. One is that it does not apply to me.
In all consultant-lobbying firms the staff includes all of their previous jobs on their CVs. It is essential to include all jobs because their clients want to know just where they have and have not worked. That is the nature of the marketing sector.
Senator Rompkey: Your staff includes every job they have ever had on their CV?
Mr. Clark: Yes. I want to know where they have been and what they have done.
Senator Rompkey: Are you interested in knowing if they had a summer job at Agriculture Canada?
Mr. Clark: None of them worked for Agriculture Canada, however some of them have worked for the farm products marketing board, yes. We are interested in having that information.
I need to be aware of the background of a lobbyist who is working for the other side of the issue. I need to know if that person has come out of a minister's office or some other place. I need to know the lobbyists background to understand where their interest will lie. That information is useful to my client. My client will understand where to lobby and possible what he is up against.
The registration itself is easily done; it does not take a long time to complete and is done electronically. I do not have those problems, perhaps because we have a different type of operation.
The whole purpose of this legislation is to help Canadians in Moose Jaw and Peace River understand what is going on in Ottawa and who is representing interests that may not be the same as theirs. I accept that, and that is why I am prepared to comply with the law, whatever the law may be.
The Chairman: I take your concern about the definition of a public office-holder, but that only applies to in-house lobbyists. That does not apply to independent consultants. It seems to me that this leaves a loophole so that every in- house lobbyist will immediately resign his or her position and set up business as a consultant and still do most of their work for the same lobbying company or for the same firm.
Ms. Presseault: I do not think the issue is with disclosure. I do not think there is any lobbyist in town who would not use his or her CV as a marketing tool. That is very clear.
In our business the richness of people's past experiences serves them well. Their knowledge of government's processes serves the community well. People use that knowledge. The issue is not at all about registering. I do not want to make light of that summer job I once held. I have held many more interesting positions in my life since.
Our first premise is to make the lobbyist registration system a meaningful system. In order to do that, there must be some parameters around the system. We believe this is too broad a net.
Over-compliance does not necessarily serve us well and does not necessarily serve the public interest well. It is true that the registration system is a tool that we all use in our day-to-day work. It is an information-gathering tool. You want to know who else is speaking to government about your issue. We use it. However, it should set out to do what it is intended to do, which is to register lobbyists.
The Chairman: You are still not answering my question as to whether you can see all these people who are now in- house lobbyists immediately resigning and setting up as consultants.
Ms. Presseault: Frankly, I do not see that. I do not know if it is an expertise that is transferable.
The Chairman: It would be the same expertise. They would essentially be working for the same company. They would just be doing it outside the company rather than inside.
Ms. Presseault: That is not what we have heard about this amendment. I do not think individuals would see a potential loophole in this amendment. We understand that it was an oversight in the other place. I do not see that people would leave their employment just change their status as a lobbyist.
Mr. Scott: Our concern was twofold with regard to this. One, as Ms. Presseault indicated, was making it meaningful, but it was duplicitous of the conflict of interest in the post-employment code, which would have certain parameters of time frames when a person would be restricted because they held a job with the government.
This legislation goes further. The person has to bear that forever even though the conflict of interest provisions have set out clear periods of time when you do not do things, after which you are a regular citizen. You can carry on with your gainful employment.
We felt that, if there is an issue with that, it should be dealt with under the legislation that specifically applies to that issue. Why is it being brought in under separate and distinct legislation dealing with lobbying when there are restrictions in other legislation?
In particular, it was open-ended. You go back to the first summer you had, and you have to declare it forever. That was our problem.
To answer your question: I had not thought about it. Possibly, someone would look at it from a legal perspective, that there is a method in terms of avoiding an issue. It is potentially there, although it would not be that easy to do. In terms of moving over into another consulting company, you do not come in because of your specific expertise on one client. You have to be broadly based. In-house consulting lobbying activity is very different from consultant lobbyists in the pure term. I do not think the implication will be huge, but the potential is there.
If I may speak to Senator Rompkey, Ms. Presseault has brought to my attention that under the act, 10.2(4), a code is not a statutory instrument. It is clearly in the legislation that the code itself is not statutory.
Senator Rompkey: That is not the point, though. Does it have the force of law?
Mr. Scott: I will have to defer. My apologies. I would have thought not. It has the force of law in that if you breach the code but that leads to an infraction under the act itself in terms, then you would have to link the two together. Just an infraction of the code itself would not necessarily be a breach of law.
Senator Rompkey: It is not a statutory instrument.
Mr. Clark: Senators, section 10.3 says that individuals must comply with the code; that is the law.
Mr. Scott: They shall be referred to a committee of the House of the Commons. That is the only enforcement provision that applies. It would not have the statutory enforcement of fines or imprisonment. It would be a reporting disclosure process only to the public at large that would be enforcement. I wanted to go to that because I had oversight.
To address your specific question, you say that, on one hand, GRIC is advising that it supports the legislation. On the other hand, it is advising of concerns.
The concerns that we have do not go to the root of the legislation. The issues concerning dealing with information, we feel can be dealt with either by interpretation bulletins under the act, or regulations. We want to make that clear. The registrar and the Ethics Counsellor have determined that the current act is unenforceable. We want to see an enforceable act in place as soon as possible.
Senator Rompkey: It is important to have that clarified.
Senator Di Nino: This legislation is not intended to regulate the industry. As we have heard over and over again, we are dealing with the improvement of transparency.
One area I did not hear about in the dialogue between Senator Joyal and our witnesses was whether our witnesses felt that these requests for information would still be transparent and in the public domain, even though they may not have been conducted under a lobbyist registration action.
Even though it may not be lobbying activity per se, but conducted by someone who may be an in-house or consulting lobbyist, should the fact that this information was requested be available to the public through some means so that the transparency provision in respect of that major effort by this piece of legislation be respected?
Mr. Scott: Senator, are you suggesting that there should be more disclosure as to the type of request that is being made?
Senator Di Nino: I am suggesting the information that the request was made, period.
Mr. Scott: That is the key to the issue in terms of what was defined, what will require some form of registration.
We are concerned, as we have indicated earlier, that this is not clear enough, and that it would require us to file a registration in a situation that would not be required because it is not of a meaningful nature in terms of an influence that will affect the enactment of legislation or bill or a policy development with respect to a client.
Senator Di Nino: You have raised probably one of the major weaknesses that we have been able to identify so far. However, there is such a grey area there that it may lead inadvertently to a problem.
Mr. Scott: If I can, and I think Ms. Presseault will have another comment, it works both ways. The request for this clarification is not just from our perspective; it is to assist the public office-holders to better understand what they can talk about without generating a situation. It will eliminate a chill factor. They will not have to wonder if they should speak to someone when they call.
That is not the intention. The preamble requires free and open access to government. It truly works both ways.
Ms. Presseault: Senator, coming to your point of improved transparency I would like to bring you a bit more into my workday. My organization deals with issues over an extended period of time; some have been ongoing for a number of years. For example, internal trade has been listed as an area of concern for us for a number of years. When I phone officials at Industry Canada to find out when the next meeting will be for the Committee on Internal Trade, the officials know perfectly well why I am interested. If they look at the registry, they will know that is one of the subject matters for which I have been registered and that I will continue to lobby for the main interest. Yes, the request for information in this case is truly transparent, and for the issues that the organizational lobbyist would submit the system is transparent for all of us. It is very clear what we are and whom we represent.
It is clear for all types of lobbyists. Often, a simple request for information will go further because we are gathering information about an issue. The intent of gathering the information is obvious and transparent. The system captures that well, as it is.
Senator Di Nino: Obviously, something is working well. I understand that there has not been a lobbyist charged with a violation of the code. I am not sure that is true but that is what I have been told. This proposed legislation would hopefully improve the public confidence to know that the information is available in the public domain and in a transparent manner, and that it would be further improved.
As you are aware, both Houses have been charged with a review and some recommendations, perhaps some proposed legislation, dealing with code of conduct for public office-holders. Do you see any potential intermingling of these two separate, yet similar, activities of the Parliament of Canada, one with a lobbyist and the other one with a code of conduct? In effect, it deals with at least one-half of the potential lobby partner, which may have an effect on what you folks are doing in your industry.
Ms. Presseault: In all fairness, senator, I will not even attempt to answer. I have neither the knowledge nor the understanding on the issues of the code of conduct. I take your point well and will look at it next time with my mirror angled on that view of how that could affect the relationships between the two sides of the equation.
Senator Joyal: I would like to come back to the issue of the disclosure of former status of a public officer. The chair was correct to raise the problem that exists with the bill: new subsection 7(3)(h.3) on page 8 at line 20. If we look at the general purpose of the original act, in the "whereas'' clause, we see that
it is desirable that public office holders and the public be able to know who is engaged in lobbying activities:
It is a matter of transparency that is not as clearly spelled out in the bill as it is in the Lobbyists' Code of Conduct, which clearly states:
Since a major objective of the Code is to promote public trust in the integrity of government decision making, the Office places a high priority on providing guidance and clarification on the Code to lobbyists and their clients and, more generally, the public.
The key words are "integrity of government decision-making.'' The code continues:
The trust that Canadians place in public office holders to make decisions in the public interest is vital to a free and democratic society.
Here, we find ourselves with an amendment that puts a burden on lobbyists, as defend by the title of section 7, "In- house Lobbyists, Corporation and Organization.'' Those lobbyists are covered by the proposed legislation and the other lobbyists, the consultants, are also covered by the proposed legislation.
The consultants, covered by all the other aspects of legislation, would not be obligated to declare their former status as public office-holders. What signal are we sending to the public when we prepare such legislation?
We are saying that an in-house corporation or organization, would have to declare their former status, but the consultants would not have to make that declaration. The overall objective of this initiative is part of an ethics package to improve transparency, trust, public interest, and the devotion of public office-holders, members, senators and ministers to serve public interests in the context of consultants.
I do not see any justification in excluding them for the sake of making the act more efficient. I suggest that we either delete clause 7(3)(h.3) or extend it to include consultants. Creating two systems, one for corporation and one for consultants, would not serve the purpose of this bill and the context in which it was introduced.
Would it not be preferable to extend the clause to include consultants rather than delete it? I am sure you have put that in your brief.
When we review proposed legislation adopted by the other place, we try to maintain consistency within the proposed legislation rather than try to change the will of the other place. We also try to identify the implementation problems, such as defining "information.''
To make the bill consistent with the objective of the government and the other place, we should prefer to extend the obligation of disclosure of former status as public officer to the consultant.
Mr. Scott: Madam Chairman unfortunately we did not have an opportunity to address this amendment because it was introduced at third reading in the House. We have this in the bill here because there are no reasonable parameters applied to it and it is duplicitous. However, I fully understand your point. I am with a consultant lobbyist firm, in the true sense. The comment has already been made by Mr. Clark and by Ms. Presseault that we do not try to hide anything about our consultants. That is the key aspect of their experience, their ability, their integrity and their senior responsibility within government.
From our perspective, yes, we would advocate that, and I am sure that GRIC would take the position, too. Perhaps I am crossing a line here between an individual position and GRIC's position, but consistency would be important. However, I suggest to you that this particular amendment is flawed, because it does not establish the meaningful parameters as to what is a position that you held as a public office-holder that would fall within the four corners of a lobbying activity that would end up being a meaningful lobbying activity.
If the net is too wide, then, again, you should not proceed with it. If, for example, this committee is going to advocate that there be an amendment, I would strongly urge you to make it consistent, and address the issues of what is a public office-holder. Does it go right down to someone who is not at a senior level? Does it have some parameters of timing attached to it, like all offices held by that person in the last 15 years? That will allow for people to be able to know who is engaged in lobbying activities, the people who count.
I hope that is of assistance to you. I agree with the need for consistency, but it is flawed.
Senator Joyal: The Lobbyists Registration Act has a definition of public office-holder. If you take section 2(1) it states':
"public office holder'' means any officer or employee of Her Majesty in right of Canada and includes:
As you know, "employee'' and "officer'' are defined in the Staff Relations Board of Canada and the Public Service Act of Canada. Those words are previously defined in other legislation. That is clear in my mind. If you look into the Public Service Commission of Canada, there is the word "officer'' and "employee.'' I do not have the act here, but I am sure it is defined in the Public Service Act and other related acts. It says "and includes'' for more specific understanding.
You say that this is extending the period of disclosure for too long. You say that it would be better to make it for 10, 15 or 20 years instead of the rest of your life. Is that the point that you are making?
Mr. Scott: That is correct.
Senator Joyal: In other words, you would limit the obligation to a specific period instead of covering it for the whole of the career.
Mr. Scott: We have referred to the Post-Employment Code for Public Office Holders and the Conflict of Interest and Post-Employment Code for the Public Service. That has certain time periods. Under those provisions, as Senator Rompkey indicated it is not public disclosure, you consult and are restricted to that. We now would require public disclosure; but why would the time constraints be any greater than the government already feels is appropriate?
The Chairman: The time constraints that the government feels are appropriate prohibit these people from doing any lobbying activities for one year for some offices, and two years for ministers, period. From then on, they can lobby as much as they like.
However, it may well be of value to the public to be able to look up and see if person "A,'' working for firm "B,'' is lobbying a certain minister; and person A happened to have been the deputy minister to that minister five years ago. That might be of great interest.
Senator Joyal: It is fair to say that you did not have a chance to make representations in the other place, because it came at third reading and was not canvassed at committee stage. However, we are now faced with this. We must revise the legislation to ensure that it is consistent and that the objectives of the act, as stated by the government, are not contradicted by an amendment or initiative that is taken in the legislative process.
On the other hand, people have rights to privacy too. However, we are faced, with our right to privacy versus our public duty, and we are requested to disclose and so forth. We have that as obligations because it is part of the initiative of creating greater transparency. We agree with that in principle. We think it is a fair responsibility.
How can we frame this in such a way as to make it workable within the system? How can we reach our objective without diverting it or adding something to it that might dilute it?
I agree that it is very important that people trust the act, and the nature of the Lobbyists' Code of Conduct is an important element. I hope we hear from the Ethics Counsellor, as the other house has.
The Ethics Counsellor has a preoccupation over the fact that the code is enforceable or not. We want to know how it works, because that is part of the trust of the public administration. That is why we are so concerned with this.
Do you suggest to us a limit on the time?
Ms. Presseault: Had we had the opportunity to make representation on the amendment, perhaps I would have had more questions than answers. Is the intent transparency; is it disclosure? Is the intent to somehow set parameters around the work of former public office-holders?
If the fits in the Lobbyists' Registration Act, I can only guess that the intent would be increased transparency. However, when I read the debate, I do not sense that is the intent. I do not want to misrepresent what I read and what I understand. My knowledge is limited of the amendment.
It is difficult to answer your question in terms of what we recommend in terms of time limits. What are we trying to do is avoid duplicating the other aspects of regulations and guidelines that govern the conduct of people in post-employment.
I agree with Mr. Scott that it does not make sense that only one part of the industry is impacted by this amendment; it does not make legislative or policy sense. It is hard to explain; and if it is hard to explain, it is hard to enforce. We want an act that is applicable to all sectors. I cannot tell you, in terms of time, if it is one year or two years, or five years or 20 years.
Mr. Scott: Unfortunately, senator, because we did not have the answers to these questions, our recommendation was to recommend that it be deleted and then revisited, presumably, when the act comes around in five years. In terms of being proactive, we cannot suggest anything further than to look to the existing legislation that applies under the post-employment. If that is not sufficient, then I cannot recommend something that would be appropriate in terms of time.
The Chairman: We might want to look at defining a "public office-holder'' as someone who is required to make a filing under the Prime Minister's code of conduct.
If there are no further questions, senators, I think we have picked your brains as long as we can. I apologize for perhaps going beyond what you were prepared to answer. I thank you very much for coming here this morning, Mr. Clark, Ms. Presseault and Mr. Scott. You have been very helpful.
The committee adjourned.