Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 13 - Evidence, May 7, 2003
OTTAWA, Wednesday, May 7, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-15, to amend the Lobbyists Registration Act, met this day at 12:07 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we have before us Mr. Chenier and Mr. Grainger. Please proceed.
Mr. Brian Grainger, Grainger and Associates: Honourable senators, I am delighted to have another opportunity to speak about this bill and its importance. In the last decade, this kind of legislation has become critical to what some people call the democratic deficit. I suggest to you that good governance, as well as the issue of democratic deficit, are key parts of our need for this legislation.
Around the world, in the OECD countries, whether they be so-called G7 or G8 countries, this type of legislation is considered to be a key piece of legislation. I would invite you to look at the OECD Web site to see the importance of this and other similar legislation to the fabric of government today.
For about 10 years, I have been involved in this and other similar work because it is critical to our ensuring that there are some commitments to values and ethics both in the private and the public sector.
This bill, as a general summary, is the product of lessons learned over the last five to ten years. It represents some excellent best practices, whether we are talking about the code itself, the registration process, or the definitions of lobbyists. In other words, we have improved the product. I believe this chamber and the House of Commons have contributed to that improvement. All of the work that has been done improves what I would describe as accountability and transparency in government.
As I have said in other places, I have learned much from my experiences locally and worldwide about how we treat such acts as this proposed one involving values and ethics.
There are, of course, two codes being discussed, one for the house and one for the Senate. There is the Prime Minister's code, if you like; and there is also a public office-holders' code. The federal public service is about to adopt for its 280,000 employees its first-ever code of ethics. This is an important environment. To get it done, we will need some education, awareness and training. The only way to make lobbyists work hard to keep within the rules is to ensure that they understand them and that they are properly educated and aware of them. In that regard, we hope that their corporations, their organizations and their integrity will lead them to do that.
I believe that the contribution of this proposed legislation to the framework of ethical conduct is large enough to impact on provincial, municipal and other forms of government organizations as well as non-government organizations. In other words, I believe it provides some important leadership in this field.
I appreciate very much the opportunity to take questions and to discuss the details of my experience with this and other bills of its kind.
Mr. John Chenier, Editor, ARC Publications: Honourable senators, I am the editor of The Lobby Monitor, a newsletter on public policy advocacy. We began publishing in the same week that the first Lobbyist Registration Act took effect, in October 1989.
Today, I wish to briefly raise several points with respect to Bill C-15, in particular, and lobby legislation that we find all around in general, and I will be glad to answer any questions that I can.
My first point is that, in my testimony before a committee studying Bill C-15 in the other place, I noted that this bill, like its predecessors, continues to leave out much lobbying activity, making reporting and disclosure almost voluntary. That is predominantly because of the information-seeking clause that has been inserted in this bill. As I pointed out there, that is the way many lobby campaigns are structured. Disclosure is and will remain under this bill very much on the lobbyist's terms. They, through their conscious decisions, are able to determine which of their clients and which of their lobby campaigns shall be made visible to the public.
My second point, and I believe it is a more important point, is related to the downgrading of the overseer of this bill, namely the Ethics Counsellor. While Bill C-15 contains references to the Ethics Counsellor throughout and the role of this person, other legislation, I believe it is Bill C-34, does away with the role of the Ethics Counsellor and overseeing lobbyists altogether. That bill was recently reported from committee in the other place and did propose to do away with the role of the Ethics Counsellor in this legislation.
I would encourage honourable senators who wish to refresh their memories on why the appointment of the Ethics Counsellor came about in the first place to look at the 1993 Liberal Red Book on this subject. The gist of the words you will find there is that someone senior should have the power to investigate complaints and review specific dealings between the government and lobbyists to ensure that codes of conduct are honoured.
In my view, it would be a major step backward to return to the pre-1993 state of affairs, where a junior government executive in the Department of Industry was put in charge of any investigation and the administration of this act.
Any complaint against a lobbyist or other investigation of wrongdoing would likely involve senior government officials or ministers as well as lobbyists, often with connections to very powerful figures.
As the Department of Industry is one of the most frequently lobbied departments, accounting for almost a quarter of all registrations in the lobbyist registry at the moment, the issue might implicate one of the superiors of this registrar. I ask honourable senators what kind of junior official will charge into that sort of lion's den? Only one who wants to see his or her career shortened.
The Red Book took into account the relationship between lobbying and politics and lobbyists and politicians. However, that point now seems to be forgotten for some reason. The current Ethics Counsellor, in his testimony before the committee studying Bill C-34, on December 5, 2002 on this issue said:
The proposal is that responsibility for the lobbyist code of conduct be assigned to the registrar of the Lobbyist Registration Branch. I will express some reservations here on two grounds. One is that the registrar is not a particularly senior official. In fact, it's not an EX job. I have an EX in the position right now temporarily, because we were having the act reviewed. But once this happens, she will go on to other responsibilities.
The Ethics Counsellor has also said that the powers of the Lobbyists' Code of Conduct are immense and require all the powers of a superior court of record; in other words, of a federal judge to compel evidence and to find whether a lobbyist has breached a rule and is acting unethically. This is a very senior assignment. It may be possible that the ethics commissioner currently under discussion might be able to take this on.
I would direct honourable senators to the most recent and what I consider the best lobby legislation passed in Canada recently, that is Bill 80, 2002, chapter 23, the Lobbying Transparency and Ethics Act of Quebec. Specifically, I draw your attention to the role and powers of the Lobbyists Commissioner as laid out in that act.
Other points worthy of consideration include what I believe to be the correction of an oversight, namely, the requirement of all classes of lobbyists and not just corporate ones to divulge previous government experience. That was Mr. Bryden's amendment in the other place, which seems to have been translated from covering all lobbyists to merely one type of lobbyist.
Finally, a hotly contested item in all sunshine legislation is the requirement to report the amounts of money spent in lobby campaigns. Some people call that fee disclosure. Other people do not disclose fees and disclose only how much is spent on a particular campaign. Many jurisdictions now have that as part of their lobbyist legislation, including the Province of Quebec. We continue to exclude it.
Mr. Duff Conacher, Coordinator, Democracy Watch: Honourable senators, I appear here today on behalf of the Government Ethics Coalition, a coalition of 32 groups of citizen organizations, 12 of which are national and 20 of which are located in six provinces and the Northwest Territories. We represent, in total, over 2 million Canadians. The total membership list of the groups has been provided to the clerk of the committee. A list of our recommended changes to Bill C-15 has also been provided.
Bill C-15 does propose to close some loopholes in the lobbyist regulatory system. Specifically, first, lobbyists who are invited to lobby government will now be required to register. In the amendments made in 1995, that loophole was created.
Second, the registration requirements for in-house corporate lobbyists will require a more detailed listing of employees who are lobbying. Essentially, they will be combined with the requirements for in-house organizational lobbyists, which levels the playing field between those two types of lobbyists.
Third, as Mr. Chenier mentioned, because of an amendment made by the House of Commons, lobbyists for a corporation and, I believe I am correct in saying, organizational lobbyists who have been public servants, politicians or other public office-holders will have to disclose the past offices they have held.
The overall changes are not enough to end secret lobbying or unethical ties between lobbyists and politicians. Key loopholes still remain that will allow many lobbyists to escape legislation and to hide key details about the nature and extent of lobbying activities, and that will allow lobbyists to have inside access and undue influence, and it will weaken the enforcement of the proposed legislation and the Lobbyists' Code of Conduct.
Picking up on two of the main points made by Mr. Chenier, the coalition is in complete agreement that this exemption that will allow lobbyists who are only requesting information to avoid registration will open the door to abuses, and it should simply be eliminated, that is, clause 3(2) of Bill C-15 that amends section 4(2)(c) of the act. That should be removed from the bill. Lobbyists who are only requesting information should also be required to register. Creating such a loophole will only create an incentive to rearrange activities to escape registration.
On another of the main points made by Mr. Chenier, to require organizational and corporate lobbyists to disclose public offices they have held in the past, as a public servant, a politician or another form of public office-holder, but not to require the consultant lobbyist to do so is simply unfair. I imagine this is an unintentional gap in the amendment that was passed by the House, but that is the effect of it. Consultant lobbyists will be let off the hook in a way similar to how corporate lobbyists were let off the hook when the last round of changes were made.
Level the playing field so that all lobbyists are required to disclose past offices they held as public servants, politicians or otherwise.
Overall, we believe the system should be changed, which would mean revamping the entire act. You may not be open to doing that, but essentially ministers and other senior public officials should be required to disclose who is lobbying them. Such a system would be more effective and would capture all lobbying. If that is not done, there should at least be a threshold set for unpaid lobbying in order to close another loophole.
We also believe, as said by Mr. Chenier, that lobbyists should be required by law to disclose how much they spend on a lobbying campaign. This is the law in 33 U.S. states and there is no reason it should not be put in place here. There is no jurisdictional issue. Some have stated that we cannot do this because contracts between lobbyists and their clients are under provincial jurisdiction and therefore the federal government cannot require disclosure of them. We are not interested in the fees paid to the lobbyist or in the contracts. We are interested in seeing how much the lobbyists are spending on their campaigns, so the corporations would register how much they spent on their campaigns.
Without this information, Canadians cannot judge whether the decision was made on the merits or because of the force of one side based on the amount of money they had. It remains speculation as to whether the four banks that wanted to merge in 1998 spent $30 million on their campaign pushing the mergers, as one media outlet reported, or $100 million, as another media outlet reported. Canadians have a right to know how much is being spent by all lobbyist stakeholders trying to influence the government.
We also believe, as the current ethics rules say in terms of lobbyists working for ministers in their personal political activities, that lobbyists should be prohibited by law from working in senior campaign positions for any politician or candidate. We believe that the ethics rule that the Prime Minister's put in place last June should be extended to prohibit lobbyists from working in campaign positions for any politician, not only ministers. This is the law in Maryland and New Mexico, so there is precedent for it.
We also believe that lobbyists should be prohibited by law from working for the government or having business ties to anyone who works for the government. The Earnscliffe organization supposedly maintains a separation between their communications division and their lobbying division, with the communications division working for the government while the lobbying division lobbies the government, often the same departments. This is simply an unethical situation. We believe it violates rule 8 of the Lobbyists' Code of Conduct.
Another problem area is the enforcement of the Lobbyists' Code of Conduct. We currently have an Ethics Counsellor who is in a constant conflict of interest because he is controlled by the Prime Minister and therefore, we believe, is incapable of fairly and partially upholding the Lobbyists' Code of Conduct. He believes that a lobbyist must enslave a politician in order to put a politician in a conflict of interest, according to his interpretation bulletin issued in January of 2003.
We are challenging that in court, and I can provide more details about those challenges. However, as Mr. Chenier also mentioned, the coalition is in complete agreement that the registrar of lobbyists is not the appropriate person to enforce the Lobbyists' Code of Conduct. We believe that Bill C-34, which you will receive in the Senate, should be amended so that the ethics commissioner will also watch over the Lobbyists' Code of Conduct.
With regard to Bill C-34, the public should have the right to file complaints with the ethics commissioner; the commissioner should have the power to protect whistle-blowers who report on violations of the law or any of the codes; all commissioner's rulings should be made public; and there should be an appeal to the courts of all the commissioner's rulings.
In conclusion, the proposed half measures in Bill C-15 send a signal that the government sees nothing wrong with government being driven behind closed doors by wealthy corporations and their high-powered lobbyists. Democracy Watch will not be registering as a lobbyist in the future because, given the gaps in Bill C-15 and the Lobbyists' Registration Act, we have determined that we are not required, as we believe many others who are actually lobbying are not required, to register as a lobbyist. We will no longer be listed in the registry because we are not legally required to do so.
Finally, close the gaps and require all who are lobbying, based on a common sense definition, to register as lobbyists. However, as I said, we will be one of those leaving the registry because there is no legal requirement to register because of these gaps.
Senator Stratton: I know there have been investigations, but have there been any subsequent charges or findings with respect to the existing law and lobbyists?
Mr. Conacher: There has been only one investigation of a violation of the law. It was with regard to René Fugère, the Prime Minister's right-hand man in Shawinigan, who, according to all the evidence, was lobbying. However, the Department of Justice and the prosecutor made up a sham excuse for not charging him, saying that the provision in the law that says that you are lobbying and have to register only if you are paid to communicate in an attempt to influence was too vague to charge him, even though he was paid and was communicating in an attempt to influence the government. That is why Bill C-15 continues the sham by changing it to "paid to communicate in respect of a bill.''
The Chairman: Before we go any further on this, Mr. Conacher, I point out that witnesses are protected under the Rules of the Senate. Your testimony before us is privileged. However, you should guard yourself against making inflammatory statements for which you might be charged if you made them outside this room. When you have completed your answer to Senator Stratton, we may want to hear from the other two witnesses to see whether they agree with your assessment of that case.
Mr. Conacher: I do not consider my remarks inflammatory. I consider them factual.
Mr. Fugère was not charged. There have been several complaints, most filed by Democracy Watch under rule 8 of the Lobbyists' Code of Conduct, which prohibits lobbyists from putting politicians in a conflict of interest situation by doing anything or proposing to do anything.
In January of this year, the lapdog Ethics Counsellor ruled that rule 8 is only violated if a lobbyist overpowers the free will of the politician and forces them to do something they would not do if they had a free will. In other words, a lobbyist, in order to break rule 8 and put a politician in a conflict, according to the lapdog Ethics Councillor, has to enslave a politician. A result of that interpretation bulletin is the rulings we are challenging in court. We will see whether the courts agree with the lapdog Ethics Counsellor.
Mr. Chenier: There have actually been three instances that have come to public light. I will mention names but, hopefully, not in an inflammatory but rather in an explicatory way.
The first involved I believe it was Charles MacMillan from Prince Edward Island. We wrote a story way back in the Lobby Digest, another one of our publications, about Mr. MacMillan lobbying on behalf of an aircraft company that was trying to get a contract out west. We only wrote that he had been attending meetings and was representing them but was not registered, which then spurred an RCMP investigation, with us in the middle. We did not want to be the police in terms of enforcing the act. We mentioned that we had information that Mr. MacMillan was there, and that is all we would say. The RCMP, after an investigation, got back to us saying that he was there but they could not confirm he was speaking, and that was the end of that matter.
The next came with a story from The Globe and Mail by Ross Howard, I believe, and it involved Jack Horner lobbying on behalf of Air Egypt, in this case. The RCMP again began an investigation but stopped the investigation on the basis that the statute of limitations, which used to apply in the act, had expired. In this case, the statute in the 1993 act, or 1989, whichever version we are talking about, was six months. This activity had taken place a year and a half earlier, so the investigation was dropped. When the act was revised last time, the statute of limitations was changed from six months to, I believe, two years, and that was the reason why it was changed to two years.
The next item that came up was the one that Mr. Conacher mentioned, that of Mr. Fugère. There was a question of whether he was being paid by the groups he was reported to be representing, and also whether he had indeed spoken in certain fora. There was also the case, which resulted in another amendment, this time in this bill, to do with the notion of "communicate in an attempt to influence.'' Again, the Ethics Counsellor was provided with information from the Department of Justice indicating that it would be very difficult to gain a prosecution under the act with that wording, and, hence, you now have a change in the wording so that it simply states, "communicate,'' leaving out "attempt to influence.''
Those are the three instances. In my view, all three have led to certain modifications, but there has never been a prosecution under the act.
Senator Stratton: Mr. Conacher has said that this bill does not satisfy his group in terms of closing the loopholes that he believes are required to be closed with respect to the issue he mentioned. In your opinion, does this bill fully addresses those issues with respect to those three cases that you brought to the table? In other words, you want to avoid loopholes where people do not get charged.
Mr. Chenier: I am concerned that this process of seeking information will indeed provide a similar loophole. For example, as a lobbyist I may call a government official, merely seeking information. In the course of the discussion, the official may ask who I am representing; my companies position on a certain topic; and then question me as to why my company takes a particular position. Are we seeking information here, or are we now beginning to move across the line into lobbying? Suppose you are the prosecutor in this case, and you ask, "Were you lobbying?'' My answer, of course, would be, "I called him merely to seek information.''
I understand that it is very difficult to bring prosecutions under the act in any event. I understand that the purpose of the act is not a tool to prosecute lobbyists, but rather to have, it seems to me, as much sunshine on the act of advocacy as is reasonably possible.
Mr. Grainger: I should quickly mention, as my colleague, Mr. Conacher, has already, my status. I am not a lobbyist and never have been. I am an educator. I am an educator in this field. If you think you will get integrity by creating a criminal code for lobbyists, you had better think again. There can no more be a criminal code for lobbyists than there can be one for kids. As far as I can tell, most Canadians are comfortable with this kind of an approach, as they are comfortable with all fair-minded legislation. Cases have tended towards criminal offences under the Criminal Code. Those instances have been subject to the judgment of political masters, the Department of Justice, and an Ethics Counsellor, if you will.
There is also an informal situation where many people seek the Ethics Counsellor's advice and the advice of his office. Those people have been assisted and, may I suggest, prevented from getting into a situation that would cause them grief. We do not hear enough of those situations.
We must educate ourselves so that we do not stumble, willy-nilly, into situations where we have problems with definitions. From a worldwide perspective of legislation such as this, that is extremely important. To heck with the definitions here. When our behaviour falls outside of the general intent of this law, we should instinctively be aware of it. In this day and age, Bart Simpson rules the world — that is, "I didn't do it,'' and "You can't prove it anyway.'' As a result of that, we have to educate in this area. Forget about creating a criminal code for lobbyists. That will get us nowhere.
I apologize for raising my voice, but after many sessions alongside Mr. Conacher, I have decided that maybe it is time to speak up.
Senator Stratton: Would you not agree that part of the problem that the public has is the perception of loopholes in the act, whereby someone is not charged because of grandfathering, or some other loophole? We must address that issue. We cannot, willy-nilly, ignore those loopholes. We must address them. Then the public perception will be that this is a good act.
Mr. Grainger: Not to disagree with you at all, but public perception comes from the "verb,'' the doing, the action, and not from just telling people that we have a good piece of legislation. In other words, it is when the senator, if I may, or the MP, or even Brian Grainger, actually does what he or she is supposed to do that proves the point.
We could spend a lot more time on prevention and education and get a lot more bang for our buck rather than trying to create criminal codes for lobbyists. That would be a futile endeavour. The Americans have been doing it for years. Tell me how that has helped their legalistic and legislative process? When Mr. Grainger approaches Senator Stratton, Senator Murray or Senator Andreychuk, we must think about what relationship or influence is being sought. It takes two to tango. Both of us should be thinking, "What is this particular relationship all about?''
Senator Stratton: I get the feeling from you that you do not believe that we need the act. I think we do.
Mr. Grainger: No, I did not say that. I am saying: Do not criminalize the act. There is a big difference, senator.
Senator Stratton: I understand.
Senator Fraser: I have two questions. You can cut me off if you want, because they are two separate and distinct matters.
First, Mr. Conacher, on what precise grounds would you are argue that the law of the land should not apply to you?
Mr. Conacher: The threshold is that I have to spend 20 per cent of my time lobbying, which I do not.
Senator Murray: How do you define what you are doing today?
Mr. Conacher: What I am doing today is specifically exempt under a section of the act, which is fine. A public registration happens through Hansard. It shows that I am here doing what I am doing. What we are worried about is what happens behind closed doors.
Senator Fraser: Are there other grounds?
Mr. Conacher: We have a board member who lobbies but who is not paid to lobby. If you are not paid, you do not have to register.
Senator Fraser: He is not a corporate person, just a board member?
Mr. Conacher: That is right.
That is why we would suggest that you reverse the onus. This is how it should have been done from the get-go. I know this is asking for a huge change to this bill. Reverse the onus and make it so that ministers and other senior public officials have to disclose on a searchable Internet site, as the lobbyists' registry is now. It will show who is lobbying now. In that way, you will capture it all. If you will not do that, then you have to do something to lower these thresholds.
Senator Fraser: Sooner or later, either way, you would run into the threshold problem. Is a minister being lobbied when a constituent speaks to him or her after church on Sunday?
Mr. Conacher: If a corporate board member is lobbying for the corporation, then he or she is not lobbying when he or she is not being paid to lobby. Corporations have large boards. Lots of people can do lots of lobbying for the corporation, and the corporation never registers that, even though it is lobbying.
All we are saying is do not pretend that this is a lobbyist registration act. It is a "some-of-the-lobbying-that-is-going- on registration act.''
Senator Fraser: Mr. Chenier, when you say we should disclose spending, what spending do you have in mind? What would be covered by such disclosure requirements?
Mr. Chenier: My concern goes back to a study that I have been looking for in my files ever since I lost it years ago. It concerned the Michael Dever affair in the United States. Some of you may recall that Michael Dever was counsel to President Reagan. He left office, became a lobbyist, and became very rich very quickly. As a matter of fact, he was a lobbyist of the Canadian government at the time.
In the course of the investigation of Mr. Dever, it came out that he was being paid phenomenal sums for very short meetings, using back channels in the Reagan White House. The report asked the question: What could Michael Dever have done in the space of 15 minutes in the White House to merit a fee of $250,000? Mr. Dever was charged not with lobbying but, rather, with perjury before the committee when he said he was not doing some things and then they discovered he was. He was charged and went to jail for perjury.
In Canada, in the late 1980s and early 1990s, there was concern when the act first came out, and subsequently, that people close to government were being paid exorbitant fees, essentially for their ability to influence key actors. Nothing was proven but there was speculation everywhere. Sunshine legislation in a number of jurisdictions tries to get at that, whether it is in many U.S. states or Quebec, by requiring some sort of reporting of how much is being spent on lobby campaigns. In some cases it is fee disclosure, the amount that lobbyists collect. In other cases it is how much corporations spend. In some cases it is both.
It is an issue that comes up every time the act is reviewed, and sometimes in between times, but is quickly dismissed as an invasion of privacy.
To me, there is a vast difference between a lobby campaign that spends $20,000 over the space of two years and someone who comes in and spends $2 million over the space of six months. These things happen. The point is that we do not know where. The next question is: Should we know?
I am not taking a position on this, or suggesting that 90 per cent of Canadians feel this way or that way. All I am suggesting is that some sunshine legislation be involved. I think it is a healthy thing to have. Sooner or later I think we will get there.
Senator Fraser: I have a little difficulty. My bias is always in favour of sunshine legislation. However, I have some trouble with a system that is likely to end up equating amounts of money spent with influence exercised. You know as well as I do — indeed, the Dever case goes to this, absent the question of his fees in terms of what he did — one well- placed phone call that lasts, perhaps, two minutes but contains some really vital points uttered into the right ear can make a bigger difference than flooding every office on the Hill with lobbyists, glossy folders and everything you can think of. I am a little worried about a suggestion that money is a proxy for the truth that we are actually trying to get at.
Mr. Chenier: There are usually two elements to that, senator. As you say, one is how much is being spent. In the United States I can find out how much tobacco, liquor and telecom companies spent attempting to influence legislation in Washington. It may make me less happy about the way government operates. All sunshine legislation is not necessarily conducive to citizens feeling good about their country or their government.
However, the issue in the Dever case was this: Is the recompense in proportion to the work done; or is it in proportion to the connections that the person has?
Questions are being raised about this, as they have been in the past and as there may well be in the future. Indeed, it was raised in the Liberal Red Book of 1993. I wish I knew the answer to that, but I believe the current Ethics Counsellor now has the power to ask any lobbyist how much he or she is being paid and to make a report of this to the House if it is felt that the fees are not in proportion to the work being done.
This involves contingency fees in large procurement contracts. Essentially, it involves anything. All I am saying is that it is there, bubbling along. It seems that in more and more jurisdictions this becomes part of this sunshine legislation. It has barely been discussed this time. I always like to throw it out because I think it merits discussion.
Mr. Grainger: You will recall that Mr. Major and the British had a problem with MPs being paid to ask questions. When they did an examination of the public conduct, it was discovered that someone offered £50,000 — and that person is still around, he runs Harrods — and someone accepted. When they cleaned it up, it was on the basis of nothing so complicated, or perhaps too simple, as an integrity package around the two Houses, and then it was rolled out into the whole government in Great Britain.
If we want to get at the root of some of these things we have to ask ourselves, in places like this and other places, senators and others: Why would we; how could we; and what could make us take £50,000? We must ask: What would make us take a Dever call, et cetera? It takes two to tango. I am after the lobbyists, too, rest assured, but I want to know the person receiving that call has the gumption to say, "Not on my watch.''
Senator Joyal: Mr. Chenier, I would like to ask you about the fourth point you raised which deals with the issue of requests for information. Yesterday we had witnesses — you might know them — who gave us various suggestions about how to deal with the aspects of what we consider could be a loophole in the bill by someone who does not wish to abide by the spirit of the bill, and of the legislation.
What advice would you give us to address that issue? Would you prefer, as was suggested yesterday, that it be through instructions of the Ethics Counsellor that the definition of what we have to understand by "information'' is brought to the attention of the public? Would you, rather, suggest that it be through regulations, since the Governor in Council under the main legislation, as you know, has the power to issue regulations? Alternatively, would you prefer that in the act the concept of the definition of "information'' be handles as it is in the United States under a parent act? In your opinion, what would be the best approach to this?
Mr. Chenier: Senator, I believe as long as it is worded in the act as it is now that information seeking is excluded, then it would be very difficult, either by interpretive bulletin or by regulation to circumvent. My preference would be to see the current exemption removed totally, and then you might need an interpretive bulletin to flush out what would or would not be considered lobbying. That would be my preferred approach.
Again, as I described in the other place, it seems to me a typical lobby campaign in Ottawa involves probably 80 to 90 per cent of information seeking. Where do people stand on the issue? Who are the key players? What are the key issues being discussed? Who is the opposition? Much of the lobby core in Ottawa and much of the government relations' core spend most of their time simply finding out the answers to questions by using their contacts. Many of them come from government, as you know, either from ministerial offices or government departments, and they use their contacts to find out what is happening on an issue on behalf of their client. Then they go back and sit down with their client and strategize. What will we do? Who do we have to see? What are their weak points? What are their good points? Who should we send in?
Under the current act and under the proposed act that is not a registerable activity, yet that accounts for most of the work of the lobby community in Ottawa. If they wish to register they can, if they do not wish to register they do not have to, and by and large most of them choose not to register.
We then turn to who will do the lobbying. Most lobbyists will tell you that the best spokespeople on any issue are the people involved. It will be the company people: the president, the CEO, the technical adviser or whomever. The question then becomes: Do they have to register? As Mr. Conacher or anyone else will point out, the 20 per cent rule comes into effect here. Most of the people who come in do not have to register under the 20 per cent rule because lobbying is not an integral part of their work. They strategize. They know who they have to speak to; they know what they have to say, the points they must get across. They fly the people in and have a week of activities and then send them away. Does that activity appear on the registry? Not if they do not want it to appear. Is it required? Not by this law or by the subsequent law.
Again, the question we must answer is: What amount of disclosure do we want? How much leeway do we wish to provide in terms of reporting lobby campaigns? I am not saying it is right or wrong. I am just saying that is the way it is. That is the choice they have. If the bill is left as it is, it is a choice that they will still have subsequent to passage of Bill C-15.
How do you get around that? You just take away the information-seeking aspect because, believe me, they are not seeking information purely out of curiosity. They are seeking answers because it is part of a strategy, part of a campaign in which that they are engaged.
Senator Joyal: Yes, but it is a fine line to define the intent of the person. As you know, the proposed legislation removes the need to prove the intent, which is very difficult to do. We know about the standard of proof in the Criminal Code and the standard of proof required under civil law. In that respect, the bill will certainly improve the situation, because it removes the aspect of proof. However, it adds a qualification where it leaves open to interpretation, by the individual who is seeking the information, the responsibility to determine if information is objective, such as, the date of the next meeting of the committee or the date when a report will come forward. Of course there is always the opportunity to convey the views of that group, that company, or that organization to the officer to whom the person is addressing the questions.
Should we not, in all fairness, help to define that fine line? As you said some information is certainly objective, and part of the job of lobbyist is to get that information. They would want to know who is influential; who they should meet with first; and what strategy they might devise. At the point of inquiry, it could go beyond just objective information and cross the border of trying to lobby, that is, to influence directly.
If we would define "information'' it would certainly help to circumscribe the risk that there will be more than just information, because the word "information'' is such a generic term that, as you said, it could be applied to anything. Of course, your proposal is that we remove all of that, but then we will be left with the 20 per cent. If we are left with the 20 per cent, we still have a loophole, as you explained yourself, if we take your description as being the reality. I am trying to reconcile those two aspects to ensure that we construct a more effective bill, if we feel that should be done.
Mr. Chenier: If you remove information seeking then the 20 per cent becomes less of an issue because the campaign has to be identified. I am saying that the consultant lobbyists, who do the entire information gathering, do not have to register. The corporate people who will come in and do the lobbying may or may not have to register under the 20 per cent rule. What I am suggesting to you is that, if you take away the information seeking exclusion, then the consultant lobbyists, who are being paid for this will be excluded. Essentially the law specifies that, if you are being paid for these things, then you should register. It is just a question of what things are you being paid for that you have to register for?
I am suggesting that if you take away the exclusion for seeking information, which as I point out is the majority of the lobby campaign, the daily grind, then most lobbying would be visible. You might not see the 20 per cent of the corporate lobby come in and execute the plan, but at least you would see the people who are developing the plan.
Again, I am not saying that this is right or wrong, I am just trying to describe to you how it works now and how it is clearly an option when people sit down and ask: Do we want this client to be visible? Do we want to register? Does the client have any concerns or misgivings? If so, let us make sure that we structure this so that we will not arrange the meetings but we will tell them whom to see. They can arrange their own meetings, et cetera.
Mr. Conacher: With regard to the 20 per cent threshold, for large corporations now under this bill the time spent by anyone will be collectivized and they will be imaging that it is one person. Even if a person comes in for one meeting and spends 1 per cent of their year lobbying, then that would be added to the total and they would have to register.
We are not too concerned about the 20 per cent part of this but you have a direct conflict between this exemption, as long as the communication is restricted to a request for information, and the new requirement to register — you must "communicate with a public office-holder in respect of...''
If you are able to tie those two together, you could say, "if the communication is restricted to a request for information and the individual is not involved in any way with a subsequent activity or prior activity covered by the section that says 'communicate with a public office-holder in respect of...','' you would be defining information, as you suggested. You would also be eliminating the two that would conflict. If anyone were charged, they would say that they were "communicating with a public office-holder in respect of...'' et cetera. The public office-holder may say that they talked about a bill, a grant or a regulation of a policy program. One side may say that it was for information only and the other side may say that they were lobbying. Perhaps one call was for information only but subsequent calls may have been for another purpose or made by somebody else. You would want to tie anyone in who is involved in any way with any follow up effort to that call for information that was actually about trying to influence something and communicating in respect of it. That would resolve the conflict that I am sure you will have. It will be a huge loophole.
Senator Andreychuk: I would like clarification. We have been talking about the activity that takes place. Mr. Chenier, would you not agree that, if the public has any concerns, it is because of undue influence and not because of the activity and the lobbying. The only way to deal with the points raised in the press would be to restrict the conduct of people who were previous office-holders, whether in a party, in the government or in Parliament. The sore point so often lies in the fact that a minister retires and the next time we hear about him, he is phoning and seeking information. Are we trying to put as much light on lobbying and registering as we possibly can?
Mr. Chenier: Do you truly want a short answer? When former President Clinton came to power, he was concerned about the revolving door. He decided that legislation could not be passed in sufficient time to be effective. He had all his senior people sign civil contracts that said that, depending on their rank, they could not lobby for two or five years after leaving office. In the case of a foreign company or government, they could not lobby for life after leaving office. That lasted until Vernon Jordan, Clinton's right-hand person, left office about six months into the regime and went to a lobbying firm. Then the whole empire collapsed.
Revolving door legislation is difficult in all jurisdictions. It becomes more difficult when it becomes a matter, as it has been here, of a person going to the Ethics Counsellor, who perhaps bends the rules or "re-makes'' the rules to accommodate. It could easily be decided that a six-month, a nine-month, or a year cooling off period would be fine. That is to say that it is difficult to set standards and to maintain those standards.
I would argue that, in the face of those difficulties, the best we can do is ensure that people know and see that certain people are involved. You can have some an effort to slow down the revolving door but, in the end, you must ensure that, if these people do wind up in the advocacy business, their role is clearly seen and cannot be disguised or hidden in any way.
You also need — and this is where the Ethics Counsellor comes in on the revolving door — a process that is more transparent than is evident now for the rules covering post-employment when a person leaves office, if they go to an agency where there may be problems. The Ethics Counsellor makes a ruling and makes it clear what a certain person can or cannot do in the subsequent cooling-off period.
It is a difficult issue that will not be solved by making tougher or longer post-employment rules. In the end, those become unenforceable.
Mr. Grainger: Following up on Senator Andreychuk's question, I have had the opportunity to see many post- employment letters. Usually, the best ones have three features: how long this is for; the nature of the activity or the contacts; and the reporting back should something vary or should you need to seek advice on the situation.
This often falls down, unfortunately, not only here but elsewhere in the world, because we are not very good at guessing how long a contact list — the Rolodex — will last. When we suggest six months, we are not even in the game. Few people or organizations — the federal government or anyone of us who may be in that role of running these things — might even suggest three or four years. Sometimes that is not enough.
We get into the difficult game outlined by Senator Andreychuk and the definitions mentioned by Senator Joyal. What exactly are we trying to cover off here? We can tell somebody all we want, but what is "undue influence''? What does "information'' mean? Revenue Canada, and the drafters of the Criminal Code and the Civil Code have had difficulty defining some things. We must improve our capacity to hand people these post-employment instructions and the reporting back instructions. If there is a problem, they have to know to call the registrar or the Ethics Counsellor and get information on what situation they may be going into. We do not do enough of that. Many people in the government, at every level, walk out with a piece of paper of some kind and nothing happens afterwards. There is no one to call or to look after them, unless that person happens to be a former minister, as some senators were. They may be called, but no one else is called. Deputy ministers are not called.
Senator Murray: Of the nine proposals made by the government ethics coalition, do you know how many are contained in the Quebec legislation to which reference has been made?
Mr. Conacher: There is an independent watchdog enforcing that. I have not been involved in the code and what has been placed there for the Quebec lobbyists.
Senator Murray: Who raised it? Do you happen to know? What are the features of the Quebec legislation that make it so much better than what is proposed here?
Mr. Chenier: There are specific post-employment guidelines in the Quebec legislation. There is a senior, independent Ethics Commissioner, or counsellor, appointed by the legislature and the only case for removal is by a vote of the legislature. The act states that you must disclose any previous government experience. The act covers both provincial and municipal governments, and prohibits municipal employees from lobbying their own municipality for two years.
Senator Murray: Does it prohibit lobbyists from working for the government or from having business ties with anyone who works for government?
Mr. Chenier: The whole impetus for the act was exactly that. There are very strong issues among party, government and the lobbyist community.
Senator Murray: Perhaps we should take a closer look at it.
Everyone at the table probably knows the answer to this question. You talk about previous office-holders, public servants and so on. I presume that that also applies to former officers of the armed service and the RCMP?
The Chairman: "Public office holder'' means any officer or employee of Her Majesty in right of Canada and includes a member of the Canadian Armed Forces and a member of the RCMP.
Senator Murray: Mr. Conacher, of the list of member groups of the coalition, do you know how many of these organizations are registered?
Mr. Conacher: No, I do not.
Senator Murray: Some, many or most?
Mr. Conacher: Some are working at a provincial level principally. Therefore, they would not be involved very much with federal lobbying. When they are members of a coalition such as Democracy Watch as a facilitating organization that lists the members of the coalition, they are registered through a list of our coalition.
Senator Murray: I will make this comment, and we will then see where the conversation goes.
Mr. Chenier is bang on in his description of how the industry works in this town. Everyone who has been on the receiving end knows that that is the case.
I want to mention another phenomenon. Many groups such as these listed here, including environmental groups and social action groups, have a very close relationship with various government programs and with entire divisions, if not departments, of the government. It is a symbiotic relationship. There is a relationship of mutual need. Those running these programs need the continued support of their stakeholders. Many of these people are stakeholders in these various government agencies and programs. They have a relationship with the managers of these programs, perhaps not so much with ministers, although in some cases they do.
Mr. Manley recently made an announcement that he will call on his colleagues in a different department of government to find $1 billion out of existing programs to finance new programs. We can be certain that, as we speak, a number of these organizations are swarming over the various divisions and units of the government with a view to ensuring that whatever is done, does not adversely affect the particular program, agency, division or unit with which they are involved.
I am not saying that any of this is sinister or wrong any more than I am saying that the phenomenon to which Mr. Chenier refers is wrong, but that is the way it works these days. Government, in that sense, has become much more open than it was. Perhaps if doctrines like cabinet solidarity and cabinet secrecy were enforced, as they should be, none of this would happen.
I could fairly easily support some of the proposals that are here. I would have some difficulties with others, including the first one. I do not know what end would be served by placing the burden upon ministers and their staffs.
I wonder about lobbyists being prohibited by law from working in any senior campaign positions for any politician or candidate. That would certainly turn this town upside down in a hurry. I do not know whether we would have fewer lobbyists, fewer campaigns and fewer politicians. It would be difficult to define a senior campaign position. If a person were one of a dozen fund raiders for a candidate, would that be a senior campaign position? Some of these are on the right track.
Mr. Conacher: The stakeholder situation happens as well very much on the corporate side.
Senator Murray: Everyone is a stakeholder. There is no common national interest. The national interest is seen to be the sum total of all the stakeholder interests.
Mr. Conacher: You are talking about partnerships and symbiotic relationships. Look at the Technology Partnerships Canada fund of Industry Canada. Industry Canada belongs to BIOTECanada, which is a lobbying association for the biotechnology sector.
Some of the citizen groups in our coalition have a symbiotic relationship, but it is all over the place and more prevalent on the corporate side in terms of true partnerships than it is on the citizen groups side.
Eight of the groups in the nationals are registered in the lobbyist registry.
Senator Murray: Is The Lobby Monitor a periodical?
Mr. Chenier: It is published every two weeks.
Senator Murray: Do senators get a freebie, or must we subscribe? How much does it cost?
Mr. Chenier: The Library of Parliament subscribes. There is a special rate for senators and MPs, and it will be delivered by e-mail to their offices.
The relationship between lobbyists and political candidates has been an issue over this last two, three months or six months. I know that the Ethics Counsellor has been very busy advising lobbyists on whether they should or should not be involved in various leadership campaigns in both parties. It is a difficult issue.
However, the most important aspect is that the rulings be open and transparent. The public should be able to look at the rules and say, "We can live with these. We understand why the rules are this way.'' At the present time it is a bit fuzzy, and this leads to more concern.
Senator Murray: They swarm around each other and exchange confidences because they are comrades in arms. I do not know how you get it around it. There is no secrecy any more.
Some of these groups have much less critical press than some of the other lobbyists.
Mr. Chenier: It depends on which section of the paper you are reading.
Senator Di Nino: I would like to pick up on a couple of points. However, before I do that, I would like to tell Mr. Conacher that I think he gives us a lot to think about. Although we may not always agree with you, I welcome you here each time you come. You always present us with a new challenge.
Both Mr. Chenier and Mr. Conacher referred to the need for an independent overseer. If I read my notes correctly, Mr. Chenier suggested that there is a downgrading of overseer that is of concern. Could both of you would make a further comment so I could use it when I prepare my third reading speech?
Senator Stratton: Or amendment.
Mr. Conacher: You are in a bind because you are seeing Bill C-15 and then Bill C-34 later. Hopefully, we will have this resolved as Bill C-34 moves through the House, and ethics commissioner will replace the word "registrar'' in Bill C- 34. That is the best way to do it. We would then have a fully empowered person.
There is another reason to do this. If you have the ethics commissioner enforce the MPs, the senators', ministers' and MPs code and the registrar enforce the lobbyist code, you will end up with conflicting rulings. Rule 8 of the lobbyist code states that a lobbyist cannot put a politician in a conflict of interest. The code for MPs and ministers that the ethics commissioner will be enforcing will state that a politician cannot be in a conflict of interest situation. Both will be investigating the same situation. What if the rulings conflict? I believe that may cause a real bind.
The registrar should continue doing the registration, but not do the enforcement at the same time. It is a recipe for disaster in terms of conflicting rulings. As well, as Mr. Chenier has highlighted, the registrar will lack independence and not hold a senior position such as that of Auditor General or Information Commissioner who may actually enforce something. That will cause other problems.
Mr. Chenier: The problem is not with Bill C-15 but with Bill C-34. The duties of the ethics counsellor are spelled out in Bill C-15, and I do not think we have raised any issues with the way they are spelled out. The issue that is not addressed in Bill C-15, but is supposedly addressed in Bill C-34, is the independence of the ethics commissioner.
When, initially, we saw there would be an independent ethics commissioner, the response was positive. Everyone thought we needed one. That is not because things are bad, but because it is better if these situations are handled by someone who is respected. When the ethics commissioner would make a ruling, there could be no aspersions cast about whether he would be under the thumb of someone or not.
I was surprised to see Bill C-34 in a sense removing this. While Bill C-15 includes it, Bill C-34 removes it. I was aghast. I thought that would have been amended in the other place when it came back from committee. It was not. It is still in the bill. I guess the place where it needs to be addressed is in Bill C-34 and not in Bill C-15.
Mr. Grainger: While the problem might be partly Bill C-34 and Bill C-15, the whole issue raises a larger question, one that this particular Parliament and the government and the public service need to struggle with, and that is that there is no real framework on ethical conduct. Therefore, there will be four or five commissioners, call them what you will. We heard about four of them; and I am sure you know there is another one, the integrity officer in the PCO to handle disclosure, advising all the deputy ministers on whistle-blowing already.
On top of that, the Treasury Board has its Office of Values and Ethics issuing guidance constantly to the public service, who are some of the same people moving in and out of these offices, as was pointed out by Senator Murray. We now have a problem with the number of people and, to a degree — I agree with Mr. Conacher on this — we will have a problem with contradictory decisions. It is time to get our act together seriously.
Part of this question rolls over into an example. You all recall President Clinton's problems. There is a cabinet position in the U.S. Office of Government Ethics, the "czar of ethics'' in Washington. A distinguished individual worked diligently throughout the mandate of the president and had access to everywhere but one building, the White House. We sometimes have a character problem, so that has to be a key consideration. Another key consideration is the access problem. You can give people all the power in the world in this town, and they will never be out of their box if somebody down the hall tells them not to go.
There is a bigger issue than trying to define information and other things. We have to deal with how we tackle the whole ethical public conduct issue. I recommend we take another look at the British experience over the last six years, and what they had to do to sort themselves out before they ran around creating ethics commissioners.
Senator Di Nino: The other issue I have deals with the lobbyists' need to disclose past offices and past associations. We heard a witness yesterday suggest that maybe that is an unnecessary provision and that this should be eliminated.
I reviewed John Bryden's commentary on this issue, dealing with his amendment, and it seems to me that the fact that it only covers in-house lobbyists as opposed to consultant lobbyists was an oversight on his part. I think the amendment was intended to cover both. For the purposes of our record, and for the purposes of guidance to us as we deal with this issue, would any one of our witnesses care to comment further on that? Do you think that it is important, in the spirit of transparency, to have all lobbyists disclose this information, or do you agree with the witness from yesterday that maybe this is cluttering up the files?
Mr. Chenier: That is part of the Quebec act. You must disclose any previous government offices you have held.
I think it should apply to all lobbyists; and I know, from speaking to Mr. Bryden, that he thought it applied to all and was surprised to find it did not. There is no reason for the exclusion.
Mr. Grainger: I believe it to be inadvertent. It should cover them all. I do not know anyone in this town who is not proud of his resumé and is not handing it out to impress people. I do not see why they should be excluded.
Mr. Conacher: It is the coalition's position as well that consultant lobbyists should be required to disclose this information. It is information that goes to the merits of how the decision was made, and who was involved in the decision-making and policy- making process.
I sympathize with the whole committee in that you are in this jam of having an oversight and dealing with it. However, it would also help us get out of this jam of the registrar enforcing the lobbyist code if you send the bill back to the House. Hopefully, it will come through after Bill C-34; and all of this will be resolved and there will be some coherence in what is happening between Bill C-15 and Bill C-34 — as well as closing this loophole and other loopholes in Bill C-15.
The Chairman: Thank you witnesses. We appreciate your coming before us today.
The committee adjourned.