Good morning, Madam 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.
Last March I submitted to the committee my report on the experience of administering the act over the last five years. Today I am submitting a revised report. It is essentially the same report, containing my recommendations for improving the Lobbying Act. This report also contains information about three administrative monetary systems currently in existence.
In my view, several aspects of the Lobbying Act are working to increase transparency in government. Approximately 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, thus increasing transparency and enabling me to enforce it more decisively.
The Registry of Lobbyists provides a wealth of information on who is engaged in the 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 whether 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 this accountability is important and should not be changed. That said, I believe 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 officer is listed, even though he or she may 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 a registerable lobbying activity takes place.
The Lobbying Act provides me with a mandate to develop and implement educational programs to foster public awareness of the act. Communicating the rationale and requirements of the act and the Lobbyists' Code of Conduct leads to greater compliance. I recommend that this education mandate remain explicit 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. Previously before this committee, I suggested that these enforcement measures may not be appropriate for the different levels of infractions that 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. 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 to table reports to Parliament in a timely manner.
In a previous appearance, I indicated that lobbyists have voluntarily come forward to disclose that they were late in registering or submitting monthly communication reports. I see this as an encouraging sign that 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 the lobbyists. 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 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 consequences other than reports to Parliament remain 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.
Since I became commissioner I have sent six files to the RCMP and I have tabled eight reports in Parliament for breaches of the code, including the one I tabled yesterday.
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 that 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 of the administration of the act and the Lobbyists' Code of Conduct.
At the federal level, a lobbyists' code of conduct has been in place since 1997. Its purpose is to ensure that lobbying activities are conducted at the highest ethical level. Rule 8 of the code has received much attention. Rule 8 prohibits lobbyists from placing public office holders in a conflict of interest.
Political activities are only one way that lobbyists risk placing a public office holder in a real or potential conflict of interest. Because political activities have been the focus, I would like to address this here. Both my guidance and two of my reports to Parliament clearly indicate that helping a person to get elected advances his or her private interest. Political activities by lobbyists in support of persons who seek public office and become public office holders may place those public office holders in a position of conflict of interest when lobby activities also take place. This can result in a breach of rule 8 of the code.
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 some reports in the media, I do 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 enables them to exercise caution when engaging in political activities by taking into account their lobbying activities. In fact, some lobbyists have indicated that the guidance and clarifications were sufficient and they 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 lobbyists may perform without risk. First, I would like to reiterate that I do not regulate political activities. From my perspective, the issue only arises when political activities intersect with lobbying activities.
Second, I am administering and enforcing the act that Parliament enacted. Under the Lobbying 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 is given. It would not only put at risk the person to whom I would provide this ruling, but it would also put at risk my ability to look into a matter in the future should there be allegations of improper lobbying activity against this person. My neutrality and my ability to be fair would be compromised.
In conclusion, I want to assure the members of the committee that I've 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.
Madam 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.
Thank you very much, Madam Chair. Thank you, Commissioner, for being with us this morning. We appreciate it.
I will start by saying that your report, which came out yesterday, was quite telling. Some people were concerned and were wondering what happens to defeated Conservative members of Parliament or candidates that are not appointed to the Senate or to UNESCO. Now we find out that they can become non-registered—in other words, illegal—lobbyists on Parliament Hill. Two were caught yesterday and there are others. We're looking forward to the investigations into Mr. Bruce Carson who was a lobbyist and the Prime Minister's advisor. We're waiting to hear more about that.
Allow me to mention Mr. Rahim Jaffer, who was a member of Parliament, and Mr. Patrick Glémaud, who was a Conservative candidate in 2008 for Ottawa-Centre, I believe. We know that these individuals were familiar with the law. Mr. Jaffer could not have been unaware of it. We know this for certain. Yet they still attempted to influence senior civil servants in order to obtain contracts worth $178 million, knowing full well that, if they were caught, there would really be no consequences. You have stated as much and you have made recommendations that are a move in the right direction: the act has no teeth and does not provide for particularly serious penalties. So, in that case, why not try? If the field is wide open, then why not attempt to influence decision-makers and obtain contracts, even though one doesn't have the right to do so?
I have children. When they are told not to do something, and they do it anyway and there are no consequences, there is generally no incentive to listen and obey the rules. In fact, grade schools refer to “consequences”. That is the term they use when they are punished.
How can we put more teeth into the act? You stated that you would like to see monetary penalties. You referred earlier to penalties of up to $25,000. Would that be enough? Would that be enough depending on the seriousness of the case? Would it be an idea to ban someone from being a lobbyist? Would it be an idea to order community service? What kinds of tools could be used to prevent these kinds of illegal activities?
Thank you, Madam Chair.
In front of everyone, I want to emphasize my view that something absolutely incredible, pathetic and totally lacking in seriousness has just happened at this committee.
The commissioner has told us twice that it would be a good idea to bring in representatives of the RCMP as witnesses in order for us to be enlightened and well-informed about the changes and improvements to the act. However, Conservative members have voted unanimously against the NDP's motion that would have allowed us to ask questions to RCMP representatives.
It is as if they took out a card saying: “Get out of jail, pass Go and collect $200.” It makes no sense. I find it deplorable that the Conservatives defeated that motion. It's as if they aren't serious and have no intention of hearing all about this act. We aren't able to hear from the key witnesses in order to find out why, in 23 years, no one has ever been found guilty and why the RCMP is never able to conclude an investigation that leads to any consequences. So I denounce and deplore the Conservatives' vote in this committee, and I want to say that loud and clear.
With that said, Commissioner, I want to come back to the fact that you want to eliminate the words “significant part of the duties” from the definition of a lobbyist, someone who lobbies on Parliament Hill.
It could actually be problematic to eliminate the 20% provision. Although we do not want every community group in our ridings to have to register as a lobbyist in order to come to talk to us, there must also be a clear definition.
The 20% rule may not be the right solution. People who spend 18% of their time lobbying would not have to be registered. So it would not be transparent. Someone spending only 5% of his time lobbying could influence the public service excessively. Think, for example, of former ministers who are retired from politics. Imagine they have been away from politics for five years; they still have a tremendous number of contacts. Even if they spend only 5% of their time lobbying, they would be able to influence decisions.
In your opinion, how do we balance the desire for transparency and for knowing who the players are without penalizing the smaller players acting in good faith?
It depends, everything depends on the way you go and buy coffee. Is the communication unacceptable? Because it's very likely that you would talk about the hockey game the night before, but that's not an unacceptable activity.
In terms of transparency, if you are talking about an activity where there is really a lot of lobbying, which might change your opinion about a program, or which is about getting money, I believe that this would be an “encounter” under the act. Because we are talking about “oral and arranged communications”.
The way I would explain it to someone... There are so many different examples. In the current situation, under the act, if somebody engages in lobbying right away, that person should indeed register right away.
However, the meeting you described should not really be registered. However, if there is a long line-up in front of you at Bridgehead, and someone suggests leaving the coffee shop, at that point, you have agreed to a meeting and it becomes an organized communication.
So it would be easier if the provision were removed.
This is an area in which I'm asking Parliament: is there a need or a desire to keep the criminal aspect in?
Right now, an infraction of the act is considered criminal, which is why I'm required, if I see a breach of the act, to suspend my file and send it over to the RCMP. There's quite a gap between education and those two extreme measures, referrals to the RCMP and reports to Parliament.
It could be that all of the powers of issuing administrative penalties rest with the Office of the Commissioner of Lobbying; that's one matter. Then there was a comment that we might want to go higher than $25,000.
Right now there's no option at my disposal. If I were looking at some of the unregistered lobbying, especially for not registering a meeting that was arranged, that's a breach of the act. If it's done when the individual is unregistered as a consultant lobbyist, I'm referring it to the RCMP. That's something for which I would, for sure, issue an administrative monetary penalty.
The situation yesterday was severe, so the question is, do we keep it criminal or do we give me the ability to issue an administrative monetary penalty that is fairly substantial?
This has been a fascinating discussion.
I think it's been clear that we all agree we don't want to change the act to interfere with legitimate organizations, businesses, and groups meeting with parliamentarians. What we are obviously disagreeing on is what happens in a case such as you just referred to, of severe breaches by people who decide to break the rules and undermine the process and who basically are given a “get out of jail free” card.
You've made, at least twice, clear recommendations that we should hear from the RCMP. We've heard that over the last 23 years there has never been a prosecution; the RCMP rubber stamps whatever act anybody has ever done and says they're not going to investigate. And yet you're forced to suspend your work while this goes on, which I believe then interferes with Parliament's ability to actually get to the bottom of a situation. It allows government, for example, in the case of Mr. Jaffer, to put off the day of reckoning down the road.
Yet when we bring forward support for your recommendation to have the RCMP come before us, the Conservatives don't want to have anything to do with examining what role the RCMP is playing, whether they do any investigation whatsoever, and why they've never bothered to consider a case that, as you say, was severe and that merits any follow-up.
I have a question I'd like to ask you. Given that my colleagues across the table obviously are doing whatever they can to keep the RCMP out of this investigation, we are led back to either asking Mr. Jaffer to write an essay on the theme “I will not be bad anymore” or to invoking an administrative monetary penalty.
Do you believe this is the only other recourse we have at this point?
I'm interested, because, again, we're not talking about the people who come and fill out the forms and who are there on a weekly basis or a monthly basis, or maybe just once a year. We're talking about people who are peddling their influence.
Mr. Jaffer was not an expert in green energy, but he knew people. He knew people very well. He had been in the caucus for 10 or 13 years. He kept his MP's card. He had his wife's BlackBerry. He had access to a cabinet minister's office. So clearly it would have been in the interest of someone looking to get on the inside track to ask him to make phone calls. That's what we're trying to deal with here in terms of making sure people aren't breaking the rules.
You said this case was severe, and in your recommendations you stated the obligation to register. You had four basic issues. One was that the requests for government funding are considered to be communication in respect of “the awarding of a grant, contribution or other financial benefit”, even if the requests are not lengthy in detailed proposals.
I guess what I'm asking and thinking of here is that you have someone who's a prime insider who knows everybody, who's been buddies with people in key elements of government, and you bring him in on a project and ask him to make some phone calls that open doors.... Are you saying that if they bring in another former Conservative MP or insider and ask him to make some calls on behalf of a company, the calls themselves are what is opening the doors to the contract, not necessarily big detailed proposals? At what level do we need to be aware of this so we can flag this behaviour and decide whether or not this is actually lobbying or some kind of influence peddling?