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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