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Federal lobbying law has huge loopholes that allow for secret, unethical lobbying
Oliphant Commission report's recommendations continue to be ignored by Conservatives

Set out below is an op-ed by Democracy Watch Board member Duff Conacher which was published in the October 3, 2011 edition of the Hill Times -- To see related article in the Hill Times, click here

The recent articles and editorial on lobbying issues, and the letters and op-eds, published in the Hill Times, all focus on the non-problem of the application of Rule 8 of the Lobbyists' Code of Conduct, while almost completely ignoring the huge problems of loopholes in the Lobbying Act and the dangerously weak enforcement of the Code and the Act by the Commissioner of Lobbying, the police and Crown prosecutors.

The only thing Parliament needs to do is close the loopholes in the Act, restore the clear requirement that the Commissioner of Lobbying enforce the Code (the requirement was weakened in 2006 by the Conservatives' so-called Accountability Act), and put measures in the Act to ensure the Commissioner, police and Crown prosecutors enforce the Act and explain publicly when they choose not to enforce it.

Why is the application of Rule 8 a non-problem?  Scott Thurlow, and John Copabianco of the Public Affairs Association of Canada (PAAC), and the Canadian Bar Association (CBA) can continue to ignore it, but the Federal Court of Appeal unanimously ruled in March 2009 that Rule 8 of the Code means that lobbyists can't do things for policy-makers they have lobbied, are lobbying or will lobby.

Despite the backward claims of the CBA and others, this does not mean that lobbyists cannot exercise their Charter rights of freedom of association and freedom of expression to participate in political activities.

What it means is that if a lobbyist's activities help a person who is or is becomes a policy-maker, then the lobbyist cannot lobby that policy-maker as the policy-maker would be in a conflict of interest (ie. feeling like they should make decisions that help the lobbyist, in return for the lobbyist's current or past help).  Similarly, if a lobbyist has lobbied a policy-maker, s/he cannot then help the policy-maker afterwards because that would amount to returning a favour that the policy-maker may have done for the lobbyist in making a favourable decision.

This is not a new concept or legal rule -- the grandfather of Canadian ethics commissioners, the Hon. Ted Hughes, issued a ruling in 1993 that made it clear that a B.C. Cabinet minister (Robin Blencoe) was in a conflict of interest and could not make decisions about a matter that affected a person who was lobbying on the matter because that person had helped Blencoe get elected two years earlier.  (To see Hughes' ruling is the last in the list of rulings, click here)

What followed was a 16-year effort in B.C. and elsewhere in Canada to try to ignore and bury Hughes' ruling, including Democracy Watch's 9-year court battle with former Ethics Counsellor Howard Wilson and former Registrar of Lobbyists Michael Nelson, whose truly incredible rulings concerning Rule 8 of the Code were rejected by the Federal Court of Appeal because they were "deeply flawed".

Commissioner of Lobbying Karen Shepherd has not been as clear as she could be in issuing an enforcement policy concerning Rule 8, based on the Federal Court of Appeal's ruling, and in addition to her rulings in a couple of cases last spring she should be issuing more detailed bulletins as requested by lobbyists that explain how Rule 8 applies to various activities as this would answer the specific questions that lobbyists have.

She did this (finally) recently with the public statements from her office that made it clear that if, and only if, a lobbyist spoke to the media at the request of a policy-maker, then (and only then) the lobbyist's activity would amount to a favour for the policy-maker and would therefore cause a conflict of interest for the policy-maker because s/he would feel a sense of obligation to return the favour.

So overall, any lobbyist who reads the Court of Appeal ruling, and the Commissioner's rulings and bulletins and public statements, and doesn't understand what kind of activities are illegal is being willfully ignorant.  And more rulings will likely be coming soon that will further clarify the scope of Rule 8.

As well, almost all laws and codes are written in general terms because Parliament can't conceive of, let alone list, every possible future case in which the law or code will apply.

For all these reasons the scope of Rule 8 is a non-problem, and no action by Parliament is needed on Rule 8.

If lobbyists (and PAAC, and the CBA, and the Hill Times editorial board) were focused on stopping secret, unethical lobbying, they would be pushing to eliminate the dangerous
loopholes in the Lobbying Act that allow people, even former Cabinet ministers and senior policy-makers the day after they leave office, to lobby without registering (as long as they are not paid for lobbying or are paid as an employee who lobbies for a business less than 20 percent of their work time or are lobbying about the enforcement or administration of a law, code policy etc.). -- NOTE: These loopholes must be eliminated, and cooling-off periods of one to five years must be established for everyone.  The more decision-making power you have, the longer you should be prohibited from lobbying, and everyone should be required to report their activities to the Ethics Commissioner regularly (as Oliphant also recommended).

Because these people are currently not required to register, they are also not required to comply with Rule 8 or any of the other rules in the Lobbyists' Code of Conduct.  In other words, they can legally lobby in secret, and in unethical ways.

As Commissioner Shepherd finally disclosed last spring after being pressed by Democracy Watch, more than 30 people have been let off the hook for unregistered lobbying since 2004 because of these loopholes (we don't know who they are because the Commissioner is has refused to disclose her rulings in these cases).

If these people were focused on stopping secret, unethical lobbying, they would also be pushing to change the Act to require the Commissioner of Lobbying to investigate and issue a public ruling in all cases in which there is reasonable evidence that someone has violated the Code (as the Commissioner was required to do before the 2006 changes to the Act), and to require the Commissioner and police and Crown prosecutors to issue a public explanation whenever the choose not to prosecute someone when evidence exists that they violated the Act.

No one has ever been prosecuted for violating the Act, even though when pressed by Democracy Watch last spring, Commissioner Shepherd finally revealed that she  (or her predecessor Michael Nelson) had concluded that the Act and/or Code had been violated in 36 of the 72 cases that they became aware of from 2004 to 2011 (as the Hill Times reported in May, click here to see article)

Only a few public rulings have been issued out of those 36 cases -- in secret, without disclosing the name of the violator, Commissioner Shepherd or Nelson, and police and Crown prosecutors, have let more than 30 people off the hook even though they clearly violated the Act or Code.

This enforcement record is as bad as the former disgraced Integrity Commissioner's record, and like the Integrity Commissioner the Commissioner of Lobbying should be fired for her
extremely weak enforcement (only without the $500,000 payoff the Conservatives gave the Integrity Commissioner).  If people were concerned about stopping secret, unethical lobbying they would be pushing for Commissioner Shepherd to be replaced.

And if they were focused on this, they would also be pushing to eliminate the huge
loophole in the Conflict of Interest Act and MP and Senate ethics rules that allow the policy-makers covered by the Act or the rules to take part in decisions in which they have a private or financial interest, as long as the decision is general and affects not only them but also other people.

While Rule 8 of the Lobbyists' Code prevents a lobbyist from lobbying these policy-makers after the lobbyist has helped them, this loophole continues to allow these policy-makers to make decisions that affect lobbyists who have helped them in almost every case (NOTE:
the Conservatives promised in their 2006 election platform to remove this loophole -- but they broke that promise along with more than half of their other Accountability Act promises -- Justice Oliphant in his May 2010 report on the Mulroney-Schreiber affair recommended closing this loophole but the Conservatives have failed to even respond to his report).

Ethics Commissioner Mary Dawson also has an enforcement
record as dangerously weak as the former Integrity Commissioner and the Commissioner of Lobbying -- and people concerned about unethical activities in federal politics should also be pushing for her to be replaced.  In her 2010-2011 annual report, she disclosed that she found more than 40 MPs violating ethics disclosure rules, but only issued six violation notices.  She also received more than 30 complaints, but only investigated a few of them.  In the past four years, Commissioner Dawson has only found one MP guilty of violating a conflict-of-interest rule, while letting dozens of Conservatives off the hook for clear violations (NOTE: the Ethics Commissioner is not required to investigate complaints from the public, and her rulings cannot be challenged in court even if she makes an error of fact or law).

Finally, people concerned about unethical activities should also be pushing to
extend ethics rules to MP and Senate staff, so that they cannot do unethical things or have unethical relationships with lobbyists on behalf of their politician bosses.

So, parliamentarians, in your review of the Lobbying Act, Conflict of Interest Act, and MP and Senate ethics codes this fall, please act in public interest by closing the loopholes in the acts and codes, and making
changes to require the commissioners to enforce the acts and codes properly, rather than spending time on the non-problem of the Lobbyists' Code of Conduct.

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


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