[Democracy Watch Logo] [Op-ed]
                Democracy Watch
                Democracy Watch
What's New
Democracy Watch's Home
Action Alerts

If GRIC's proposals are implemented, secret lobbying will still be
legal, and even more unethical lobbying will be legal

Set out below is an op-ed by Democracy Watch Board member Duff Conacher which was published in the November 7, 2011 edition of the Hill Times

If the recommendations of the Government Relations Institute of Canada's (GRIC) to change the federal Lobbying Act are implemented, secret lobbying will still be legal, and even more unethical lobbying will be legal.

Under GRIC's proposal, the loophole in the Lobbying Act that allows in-house corporate lobbyists to lobby in secret without registering if they lobby less than 20% of their work time would no longer apply to people who are former designated public office holders.

But why just close the 20% loophole partially?  If this is all that is done, secret corporate lobbying will still be legal.

As well, GRIC says nothing about the loophole that allows secret, unregistered lobbying if you are not paid to lobby (which is easy to exploit by having someone pay you for some other service, while you lobby for them for free).  Nor does GRIC say anything about the loophole that allows secret, unregistered lobbying if you are lobbying about the enforcement or administration of a law, code, policy etc.

As well, while GRIC wants the definition of "oral and arranged communications" to be clarified, it says nothing about the loophole that allows all other types of communications to remain secret.

Lobbyists who are not required to register and disclose their activities and communications are not required to follow the rules in the Lobbyists' Code of Conduct, and so it is legal for them to lobby in unethical ways.

As a result, to end secret, unethical lobbying, either the Conservatives' 2006 election pledge to enact a requirement that politicians and public officials register all their contacts with anyone contacting them about their decisions must be implemented (which would be the most efficient solution), or the definition of lobbying in the Act must be changed to require anyone who contacts in any way any public office holder with regard to decision-making to register as a lobbyist.  Whichever solution is implemented, the only people exempt from registration should be people communicating only as an individual in a general way about their general policy concerns (such as voters who write letters to MPs in response to an Action Alert appeal by an interest group).

Just as bad as GRIC ignoring secret lobbying loopholes in the Act are the proposals by GRIC to replace Rule 8 of the Lobbyists' Code of Conduct "with language that mirrors relevant sections of existing legislation governing political activities and conflict of interest", and to delegate enforcement of Rule 8 to the Conflict of Interest and Ethics Commissioner.

If this proposal is implemented, it will gut Rule 8 and make even more unethical lobbying legal.

Rule 8, as required to be interpreted and applied by the March 2009 unanimous ruling by the Federal Court of Appeal ruling in Democracy Watch v. Barry Campbell et al, currently prohibits lobbyists from giving or doing anything that (to quote from the ruling) creates in a policy-maker a "personal sense of obligation to the lobbyist" or to "some other private interest created or facilitated by the lobbyist."

In other words, lobbyists can't do anything that creates a private interest for the policy-maker that conflicts with the policy-maker's duty to uphold the public interest.

This is an effective conflict of interest rule that aligns with the legal definition of conflict of interest that goes back hundreds of years, and applies in many other professions.  Hockey players and other sports players are prohibited from doing things for or giving things to referees (and referees are prohibited from accepting gifts or favours); lawyers are prohibited from doing things for or giving things to judges (and judges are prohibited from accepting gifts and favours); pharmaceutical company representatives are prohibited from doing things for or giving things to doctors (and doctors are prohibited from accepting gifts and favours).

Why do we have these rules?  Because if we didn't have these rules we wouldn't have fair sports games, justice and a rule of law, or good medicine.  Similarly, if we don't have the current interpretation of Rule 8, we won't have democracy because it will be legal to buy off policy-makers with favours and gifts.

Rule 8 should have been interpreted this way since it was enacted in spring 1997.  However, former Ethics Counsellor/Registrar of Lobbyists Howard Wilson and his successor Registrar Michael Nelson created in 2001 what the Federal Court of Appeal called a "deeply flawed" interpretation of Rule 8, and then fought Democracy Watch in the courts for 8 years to try to maintain that interpretation, both of them letting dozens of lobbyists off-the-hook for clearly unethical activities through those years.

The danger of GRIC's proposals are that the Conflict of Interest Act and MP and senator ethics codes have huge loopholes that make it almost impossible for any of these policy-makers to ever be in a conflict of interest.

In the Act and codes, you can only be in a conflict of interest if you take part in a decision about a specific matter (like handing out a contract or license, or approving a merger or takeover) and push your own private financial interest, or the private financial interest of a relative or friend (NOTE: The Act does not specify that you have to have a financial interest, but Conflict of Interest and Ethics Commissioner Mary Dawson has erroneously interpreted the Act as applying only to financial interests, which has further narrowed the scope of the Act).

As a result, under the Act and codes, a policy-maker can't be in a conflict of interest if they are taking part in a decision about a general matter (like changing a law or regulation that applies (as all laws do) to more than one person or organization), even if you have a direct, personal financial interest in the matter (as, for example, PMO Chief of Staff Nigel Wright does in many government decision-making processes in which he has been allowed to participate by Ethics Commissioner Dawson).

Ethics Commissioner Dawson (like Wilson and Nelson, and Commissioner Bernard Shapiro before her) has further expanded these loopholes with other deeply flawed rulings.

In the case of the two lobbyists who helped organize a fundraising event for Cabinet minister Lisa Raitt's riding association, Dawson first did the unbelievable when she believed Raitt's claim that Raitt was unaware that one of the lobbyists was helping with the event (even though the lobbyist was the brother of one of Raitt's staff, and even though his name was on the invitation for people to contact to RSVP for the event).

Secondly, Dawson ruled that even if Raitt had known the lobbyists were helping, Raitt did not benefit from the fundraising event, only her riding association did (really?).

Thirdly, Dawson ruled that even if Raitt did benefit from the event, it did not further her own private interests, just her political interests (as if Raitt doesn't have a personal interest in having funding for her re-election campaign).

So if GRIC's proposals are implemented to align Rule 8 with the rules in the Conflict of Interest Act and MP and senator codes, and to make Ethics Commissioner Dawson the enforcer of Rule 8, it will again be legal for lobbyists to help politicians they lobby in any way with their career -- raising money, managing their campaigns, heading up their riding association -- and Ethics Commissioner Dawson will be there to rubber-stamp all this favour trading as ethical as she has for the past four years (Commissioner of Lobbying Karen Shepherd is already doing a bad enough job at enforcement, with Dawson in charge it would be even worse).

So yes, Commissioner of Lobbying Karen Shepherd should issue a bulletin containing more examples of activities that comply with Rule 8, and that don't comply.  And Commissioner Shepherd should issue advance rulings (and publish them as interpretation bulletins that apply generally, as the Senate Ethics Officer does, and as many provincial ethics commissioners do).

But if federal politicians do what GRIC wants, we will be set back to the unethical lobbying and favour-trading free-for-all that existed before 2009, and secret lobbying (especially by corporate lobbyists) will still be legal.

Oh, and by the way, the same loopholes exist in the lobbying disclosure laws of the six provinces that have such laws (Alberta, B.C. , Newfoundland and Labrador, Nova Scotia, Ontario, Québec), and in the ethics rules of every province and territory and municipality in Canada (except the City of Toronto, which has closed the loophole that allows for unethical lobbying (but still has the other loopholes)).

For more details, go to Democracy Watch's Government Ethics Campaign and Money in Politics Campaign pages


Follow on Twitter 

TV and Radio