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Lobbying commish Shepherd urges for more registry transparency as she prepares to leave

By Shruti Shekar      

Canada's outgoing Lobbying Commissioner Karen Shepherd says there should be more disclosure for communication reports by including who the lobbyist made communication with, expanding more on the communication subject matter, and more.

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OTTAWA—In the future, the Office of the Lobbying Commissioner the lobbyists’ registry should include more information for better transparency, including possibly billable hours for lobbyists, says Canada’s outgoing Lobbying Commissioner Karen Shepherd.

“This is something that could be looked at during the next legislative review. In the case of the ‘significant part of duties’ to determine whether a registration is required, I feel it would increase transparency if we looked at using a definitive number of hours rather than the 20 per cent rule in place now. I suggested that Ontario’s 50-hour threshold was an interesting starting point during my appearance at the Standing Committee on Access to Information, Privacy and Ethics on Oct. 27, 2016,” said Ms. Shepherd in an email interview with The Lobby Monitor last month.

Over the span of a seven-year term, Ms. Shepherd was responsible for overseeing thousands of people and organizations that wanted the federal government’s ear, and for keeping them in line. In Canada, the role of the lobbying commissioner is to “administer and ensure compliance with the Lobbying Act and the Lobbyists’ Code of Conduct,” Ms. Shepherd said, adding that the importance of her role cannot be underestimated and “the importance of [her] office [is] working to ensure transparency and accountability in lobbying and that this lobbying is done according to the highest ethical standards.”

As an independent agent of Parliament responsible for administering and enforcing the Lobbying Act, her mandate included maintaining and increasing transparency of lobbying activity within the federal lobbyists’ registry, which has 5,504 active lobbyists and 3,665 active registrations, according to a Jan. 6 search.

Appointed June 30, 2009, high-profile cases of improper lobbying crossed Shepherd’s desk, such as Bruce Carson, the former senior aide to prime minister Stephen Harper, and Jamie Carroll, the former Liberal national party director, both of which were passed on to the RCMP and led to convictions by the courts for violating the federal Lobbying Act.

Ms. Shepherd also brought into force the new Lobbyists’ Code of Conduct, which came into effect in December 2015. Ms. Shepherd was originally appointed on June 30, 2009, for a seven-year term. Her term was extended by six months, which means her term us up on Dec. 30, 2016.
What is your relationship like with lobbyists and the Government Relations Institute of Canada? Some are critical of your rulings. Is that just par for the course? “As a regulator, I believe that the relationship is generally positive with stakeholders. That doesn’t mean there weren’t bumps along the way, but in general, I think I tried to work with stakeholders whenever possible. This was particularly evident in the consultation for the Lobbyists’ Code of Conduct. I believe that the code I put in place is stronger because of the input I received from stakeholders. I feel that I have done that when necessary, such as the consultations on revising the Lobbyists’ Code of Conduct. Everyone will never like everything you do; however, if that is the situation, I think you are probably striking a good balance.”

How important is lobbying in influencing federal government public policy? “Lobbying is a legitimate activity which plays an important role in democracy. Government decision-makers cannot operate in a vacuum. Sound decision-making requires knowledge about risks and benefits of choosing one option over another. It is just that it must be done in a transparent manner.”

In your time as commissioner, what was the most difficult case you worked on? Most interesting? “I would say that I am particularly proud of the new Lobbyists’ Code of Conduct, which I brought into force in December 2015. Given the importance of the code in outlining the high ethical standards expected of lobbyists, I felt it was important to hear from key stakeholder groups to ensure it was as strong and clear as it should be.”

In your time as commissioner, how important was your role in the world of lobbying? “I’d like to tackle that from an international perspective. Canada’s Lobbying Act and the Lobbyists’ Code of Conduct are models that other governments around the world refer to when they want to set up lobbying. As other jurisdictions move to implement lobbying regimes to help ensure more transparency and accountability in lobbying, [other jurisdictions] have asked me for advice and my office [to] look at what we are doing in Canada to help them develop strong and effective legislative framework. I think all Canadians should be proud that the country is a global leader in this area.”

You noted during your appearance at the House Standing Committee on Access to Information, Privacy and Ethics hearing that you were hoping to start a Twitter account, maybe LinkedIn. How does your office plan to execute this before the end of your term? “The immediate goal is to get onto social media and to give stakeholders a reliable source of information on lobbying in Canada. In the near future, I hope to reach potential registrants who may use social media to find information about Canada’s lobbying legislation. The office will continue to address media questions through email, telephone, and in-person interviews and not on social media.”

Why after eight years in office, does your office plan to create a presence now on LinkedIn and Twitter? “The office right now is well-established, and we saw social media as an opportunity for improvement. But, social media participation can put a strain on the limited resources of small organizations, so they must ensure that it is carefully and efficiently planned. It took time to ensure all the right elements were in place.”

What do you think of Ethics Commissioner Mary Dawson’s suggestion that the Offices of the Lobbying and Ethics Commissioners be combined? “It is important to remember that our two offices came about as a result of a 2004 federal court ruling that found institutional bias when the two roles were combined under the Office of the Ethics Counsellor. Before merging the two offices, there are other possibilities, which could be explored. I believe that the two offices could work together where their responsibilities overlap. For example, establishing a memorandum of understanding between our two offices on education and compliance, such as the one in place in Toronto between Offices of the Lobbyist Registrar and the Integrity Commissioner, would deliver the benefits of a merger while preserving the needed independence of our two roles.”

What other changes do you think your office should implement? “I would advise any review to consult my special report and the staff in my office to put forward recommendations that will improve the transparency and accountability delivered by the act while ensuring that open and frank policy discussions between government and stakeholders are not unduly burdened.”

Are there any changes you would like to see happen in the act? “During the 2012 legislative review, I submitted a special report to the committee which indicated that while the Lobbying Act was working well in meeting the objectives originally intended by Parliament, there were also opportunities for improvement. I stand by the nine recommendations I made in that report.”

You noted that there should be more disclosure for communication reports by including who the lobbyist made communication with, expanding more on the communication subject matter, and what they are specifically lobbying on. How does your office plan to implement this? “The information required to be disclosed in monthly communication reports is specified in the Lobbyists Registration Regulations, which are administered by Treasury Board. Regulations are easier to change than the act because they do not need to go through the parliamentary process required to change legislation, but the authority to change them still rests with the government rather than with me. In my special report, I suggested the following recommendations: 1. The act should be amended to require that every in-house lobbyist who actually participated in the communication be listed in monthly communication reports, in addition to the name of the most senior officer. 2. The prescribed form of communications for the purposes of monthly communication reports should be changed from ‘oral and arranged’ to simply ‘oral.’ 3. The act should be amended to require lobbyists to disclose all oral communications about prescribed subject-matters with DPOHs, regardless of who initiates them.”

Why weren’t these measures of making the communication reports more transparent implemented earlier? “As I said earlier, this would need to be addressed in a legislative review of the legislation, which is administered by Treasury Board.”

Should lobbyists disclose billable hours? “This is something that could be looked at during the next legislative review. In the case of the ‘significant part of duties’ to determine whether a registration is required, I feel it would increase transparency if we looked at using a definitive number of hours rather than the 20 per cent rule in place now. I suggested that Ontario’s 50-hour threshold was an interesting starting point during my appearance at the Standing Committee on Access to Information, Privacy and Ethics on Oct. 27, 2016.”

Are there any concerns you have for the new commissioner? “I leave a mature, independent agent of Parliament with experienced and dedicated professionals and with a strong reputation, both in Canada and around the world. The importance of consultation with stakeholders and considering views when making policy or regulatory changes cannot be underestimated. I believe that the code I put in place is stronger because of the input I received from stakeholders. I believe that the importance of periodic reviews should not be underestimated; especially when it comes to legislation such as the Lobbying Act which should be responsive to Canadians’ evolving expectations about transparency, accountability, and ethical behaviour in influencing government decision making.”

You aren’t going to be seeking another term, what are your plans for after you finish your term? “My goal in my remaining time is to ensure a smooth transition. I will do whatever I can to ensure the success of the next Commissioner of Lobbying. I have no definitive plans at this point.”

Why did you decide not to seek another term again? “I took some time during the summer to reflect about my future. Given that I have been in the lobbying field at the federal [level] for 12 years and I have had successes like setting up the first independent office and bringing in a new Lobbyists’ Code of Conduct, I decided that it was then an opportune time for me to look for new challenges. It was not an easy decision after leading the office for more than eight years. I am proud of my many accomplishments as commissioner.”

Shruti Shekar is the editor of The Lobby Monitor. This story was originally published in The Lobby Monitor. 

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