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
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
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
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
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
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
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
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
Ethics Campaign and Money in Politics