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Committee report ignores huge loopholes in lobbying law

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In Ottawa, Democracy Watch and the national Government Ethics Coalition called on the Conservative Cabinet to go further than the recommendations of the House Access to Information, Privacy and Ethics Committee by changing the federal Lobbying Act and enforcement system in 10 key ways to finally end secret, unethical lobbying of the federal government.

The Act is so full of loopholes, it should be called the "Some Lobbying by Some Lobbyists Act." And even if all of the House Committee's recommended changes were made, secret and unethical lobbying would still be allowed because of huge loopholes in the law. All parties are to blame for this, because even though the New Democrats proposed some additional changes beyond the Committee's recommendations, their proposals also failed to address the loopholes.

"By failing to strongly recommend closing all the loopholes in the federal lobbying law that allow for secret, unethical lobbying, even by former Cabinet ministers and senior government officials, and by failing to recommend changes that will ensure strong and strict enforcement of the law in every case, MPs from all parties have failed Canadians and failed democracy," said Tyler Sommers, Coordinator of Democracy Watch. "We can only hope that the federal Conservative Cabinet will go further than the Committee and introduce a bill that keeps their 2006 election promise to close all the loopholes and strengthen enforcement in ways that will finally end secret, unethical lobbying of the federal government."

The three huge loopholes that the Committee MPs from all parties failed to address, and that will remain open unless the Conservatives close them in the bill they will hopefully introduce to change the Act, are that:

1. Secret lobbying will still be legal if the lobbyist has not paid for their lobbying (a consultant lobbyist can easily arrange for clients to pay them for other services while lobbying for free, and former Cabinet ministers and senior government officials collecting rich pensions can afford to lobby for free, and they are the people who most need to be stopped from lobbying because of the undue and unethical influence they can have on their former colleagues);

2. Secret lobbying will still be legal if a lobbyist is lobbying about the enforcement, interpretation or application of laws and regulations (which is a huge area of lobbying, especially for big businesses), and;

3. Secret emails, texts, phone calls and even meetings between lobbyists and Cabinet ministers and senior government officials will still be legal as long as the minister or official initiates the communication or meeting (which they will do whenever they want to have secret, unethical relations with a lobbyist -- only oral, pre-arranged communications initiated by the lobbyist are required to be disclosed).

Since 2004, even without doing random audits and inspections, the Commissioner of Lobbying has caught 32 lobbyists violating the Lobbying Act, but none of them have been prosecuted because of these and other loopholes in the law. These law-breaking lobbyists have also never been identified and are likely still lobbying the government.

Lobbyists who exploit loopholes in the Act and don't register and disclose their lobbying activities are not required to comply with the ethics rules in the Lobbyists' Code of Conduct, and former Cabinet ministers and senior government officials and politicians who exploit the loopholes are not covered by the five-year ban on lobbying after they leave office. This is why it is so important to close all the loopholes -- any loopholes that are left open will be exploited by unethical lobbyists for unethical lobbying, and these people will continue to be let off without any penalty.

The Committee also failed to address the biggest problems with enforcement of the Lobbying Act and Code -- the Commissioner of Lobbying and RCMP and Public Prosecutor must be required to do random audits and inspections, and to investigate and issue public rulings in every case. In addition to the 32 lobbyists who violated the Lobbying Act since 2004 but were not prosecuted, the Commissioner of Lobbying has failed to fully investigate and issue public rulings about more than 55 other situations where allegations were made that a lobbyist violated the Act or the Lobbyists' Code of Conduct.

So while the House Committee recommended that the Commissioner be given the power to fine violators, it is unfortunately likely that the Commissioner would never use this power anyway unless required to issue rulings in every case.

This enforcement record is as bad overall as the former disgraced federal Integrity Commissioner Christiane Ouimet who was fired by the Conservatives in fall 2010. However, not one MP from any party has ever asked the Commissioner of Lobbying to disclose details about the 32 lobbyists and 55 situations (likely because the lobbyists who broke the law are public supporters of one or another of the federal parties and so the MPs are protecting their parties and themselves from embarrassment by failing to push for disclosure of the identities of these law-breaking lobbyists).

The Committee also ignored the simplest solution to end secret, unethical lobbying of the federal government -- require every politician, political staff person, appointee and decision-making public servant to disclose the identity of anyone who communicates with them in any way directly or indirectly about their decisions, and the details of the communications (as the Conservatives promised to require in their 2006 election platform).

The Conservatives are members of the international Open Government Partnership (OGP) which requires, among other key changes, strengthening laws like the Lobbying Act and keeping their commitment to increase public integrity. If they do not close all the loopholes in the Lobbying Act, and strengthen enforcement, they will be violating their OGP commitments.

See the summary list of much-needed changes to the Lobbying Act and enforcement system here.

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