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Enforcer of Lobbyists Code of Conduct Still Lacks Needed Independence and Resources

(The following letter-to-the-editor, by Duff Conacher, Coordinator of Democracy Watch, was published in slightly different form in the Hill Times on March 28, 2005)

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Dear Editor,

Unfortunately, your interview with the new Lobbyists Registrar Michael Nelson was inaccurate in many key ways, although it was usefully revealing of the Registrar's incredibly weak attitude towards enforcement (Hill Times, March 21).

First, the Registrar is not "an independent office" as stated in the preamble to the interview.  Exactly the same as the former Ethics Counsellor (who used to enforce the Lobbyists Code of Conduct, a job the Registrar now has), the Registrar was chosen by a Cabinet minister, can be dismissed from the position of Registrar at any time for any reason by that same Cabinet minister, cannot set the budget of the office, nor choose the staff of the office.  The Federal Court ruled in July 2004 in Democracy Watch's challenge of the Ethics Counsellor's office that such a structure lacks the independence legally required for a person responsible for enforcing a code like the Lobbyists Code.

Second, while the Registrar claims that an interpretation bulletin by him will be enough to clarify key new sections of the Lobbyists Registration Act (LRA) that will hopefully soon be in force, in fact the LRA states that such interpretation bulletins are not binding.  As a result, if the new sections are not clarified in a regulation, their vagueness will be a huge technical loophole that will allow many lobbyists to escape disclosing their lobbying activities (or allow them to escape being found guilty of failing to disclose their activities if they are ever prosecuted).

Third, the former Ethics Counsellor's lack of independence was not "because he was in the position of counselling public office holders while also enforcing the law."  The problem was (as summarized above) that the  structure and operation of his office was completely controlled by a Cabinet minister.

The usefully revealing part of the interview is that the Registrar seems to believe: that his interpretation bulletins are binding (they aren't); that just because no Cabinet minister has called him yet his office is therefore independent (as summarized above, it isn't independent at all); that the LRA is "pretty clear when you should register" (it isn't clear at all, which is why clear regulations are needed), and; that himself and a few others (none of them lawyers) are enough resources to ensure effective, strong enforcement of these key government accountability laws (they aren't).

These are essentially the same answers the Ethics Counsellor gave when he was asked similar questions, and the Federal Court and everyone else who examined the office of the Ethics Counsellor reached the same conclusion -- that he was a lapdog with inadequate independence and resources to enforce the law.

Until those lobbying for private interests are required to do so openly and ethically, there is no possibility that the federal government will consistently uphold the public interest.  By maintaining a loophole-filled LRA and weak and biased enforcement of lobbying rules, the Liberals have again shown clearly that they don't care about upholding the public interest, nor whether a shadow government of lobbyists has undue influence over policy-makers.

Canadians deserve better.

Duff Conacher, Coordinator
Democracy Watch

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