Appearance before the House of Commons Standing Committee on Access to Information, Privacy and Ethics, Statutory Review of the Lobbying Act
March 23, 2011
Opening Remarks by Karen E. Shepherd
Commissioner of Lobbying of Canada
(Check against delivery)
Good afternoon, Mr. Chair and members of the committee.
I am pleased to be here today to discuss the legislative review of the Lobbying Act. I am accompanied by Mr. René Leblanc, Deputy Commissioner and Mr. Bruce Bergen, Senior Counsel.
I am submitting to the Committee my report on the experience of administering the Act over the last five years. The report contains my recommendations for improving the Lobbying Act.
At my December 14th appearance before this Committee, I outlined a number of issues related to the review of the Lobbying Act. Today I would like to elaborate further.
Let me begin by saying that, in my view, several aspects of the Lobbying Act are working to increase transparency. More than 5,000 lobbyists are registered to lobby federal public office holders and, every month, hundreds of communications with designated public office holders are disclosed by lobbyists. However, based on my experience, key amendments to the Act would capture a greater share of lobbying activities and enable me to enforce it more decisively.
The Registry of Lobbyists provides a wealth of information on who is engaged in lobbying activities for payment but does not capture the lobbying activities of organizations and corporations who do not meet the "significant part of duties" threshold. That threshold is difficult to calculate and even more difficult to enforce. That is why I am recommending that the "significant part of duties" provisions be removed from the Act. In doing so, I would also recommend that Parliament give consideration as to whom the legislation should capture and that a limited set of exemptions might be necessary. I would be pleased to explore this issue with Parliament during its deliberations.
The Senior Officer in a corporation or organization is currently responsible for reporting on its lobbying activities. I believe that this accountability is important and should not be changed. That said, I believe that it would be more transparent if the names of those actually engaging in lobbying activities at meetings with designated public office holders were also listed in the monthly communication report. Currently, only the Senior Officers are listed even though they might not have attended the meeting.
I also recommend that all "oral" communications, regardless of who initiated them and whether or not they were planned should be reported. Currently, only "oral and arranged" communications are reported monthly. Deleting "and arranged", would increase transparency by disclosing any "chance" meetings or other communications between lobbyists and designated public office holders where registrable subjects are discussed.
The Act provides me with a mandate to develop and implement educational programs to foster public awareness of the Act. I believe that communicating the rationale and requirements of the Act and the Lobbyists' Code of Conduct leads to greater compliance. It is for this reason that I recommend that this explicit mandate remain in the legislation.
In terms of my ability to enforce the Lobbying Act, the only measures available to me are referrals to the police for a breach of the Act and Reports to Parliament for a breach of the Code. In December, I suggested that these enforcement measures may not be appropriate for the different levels of infractions I encounter.
When I refer a file to the RCMP, the Act requires that I suspend looking into the matter pending the outcome of their investigation. Since July 2008, it has taken the RCMP on average eight months to review a file. In all cases, the RCMP decided not to proceed. As I can only continue with my own investigation once a decision has been taken by the RCMP, this affects my ability to render decisions and table reports to Parliament in a timely manner.
At my December appearance, I indicated that lobbyists are voluntarily coming forward to disclose that they were late in registering or submitting monthly communication reports. I see this as an encouraging sign that many lobbyists want to comply with the Act. I do not believe the public interest would be well served if I were to refer such files to the RCMP for criminal investigation.
For these and other lesser transgressions, I have decided to educate and monitor these cases. I do not see this as "letting them off the hook". Employing such alternative measures encourages others to come forward. In addition, as I indicated, individuals subject to education and/or correction continue to be monitored to ensure that they remain in compliance.
For that reason, I am recommending an administrative monetary penalty mechanism be adopted. This would provide a continuum between my current practice of relying on educational measures and the more severe and lengthy processes of referrals to a peace officer or Reports to Parliament.
Despite the available penalties under the current Act, no one has ever been charged, or convicted, of an offence under the Lobbying Act. I am of the view that, unless there are amendments to include a range of enforcement measures, probabilities of convictions for breaches of the Act under this legislation are low.
As I have mentioned before, the Lobbying Act prescribes that investigations must be conducted in private. This should not be taken as an indication that I am not enforcing the Act. In fact the opposite is true. I am enforcing the Act to the full extent provided by the current provisions of the legislation. I have sent six files to the RCMP, I have tabled three reports in Parliament for breaches of the Code, and three additional reports have been sent to individuals to provide them with an opportunity to present their views as required under the Act.
I continue to believe that conducting investigations in private assures their integrity and protects the reputation of those who may have been wrongly accused. This is not insignificant. However, I have started confirming to Parliamentary Committees that certain administrative reviews and investigations have been opened when the matter was clearly in the public domain. As a result, I think it is important that the Act be amended to include provisions which would offer the Commissioner, or any person acting on my behalf, some degree of immunity against criminal or civil proceedings, libel or slander.
I would now like to take this opportunity to address some of the criticisms that you may have seen recently in the media.
With respect to the application of Rule 8 of the Lobbyists' Code of Conduct on Improper Influence, both my guidance and my Reports to Parliament clearly indicate that helping someone get elected is in his or her private interest and might put the lobbyists in breach of the Code depending on their lobbying activities.
My interpretation reflects the judgment of the Federal Court of Appeal which was quite conclusive in overturning the old interpretation of Rule 8 and in offering clear direction regarding how it should be interpreted. Contrary to what transpired in the media, my guidance does not prohibit lobbyists from engaging in political activities. I believe that lobbyists are professionals and that I have provided them with sufficient information to allow them to make decisions. This way, they can exercise caution when engaging in political activities, taking into account their lobbying ones. In fact, some lobbyists have indicated that the guidance and clarifications were sufficient and are arranging their affairs accordingly.
The issue of my decision not to provide advance rulings has also been raised in terms of which political activities they might perform without risk. First, I would like to state that I do not regulate political activities.
Secondly, I am enforcing the Act that Parliament enacted. Under the Act, my decisions are judicially reviewable. It is therefore imperative that all my decisions be fair and based on all relevant facts. I must be prudent in relation to advising lobbyists regarding potential situations, based on information that could easily change after the advice was given. It would not only put at risk the person to whom I would provide this ruling, but also, it would put at risk my ability to look into the matter in the future should there be allegations against this person. My neutrality and my ability to be fair would be compromised.
In conclusion, I want to assure members of the Committee that I have been administering the Lobbying Act as Parliament has enacted it. As the administrator of the Act, I look forward to working with the Committee on the legislative review to find ways to further enhance transparency and better ensure compliance.
Mr. Chair, this concludes my remarks. I want to thank you for your attention and I will now be pleased to answer any questions you or the Committee members may have.