If the legislation ain’t broke …

The federal Lobbying Act is (past) due for its legislatively mandated parliamentary review. Again. Let me tell you why Parliament need not spend too much time on this: it works fine. The act, and the resulting registry, conspicuously publish the who’s who of government engagement at the federal level in Canada. Mission accomplished. It is also the best opposition research tool since the advent of the access to information request. If Parliament ignores that advice, the one area that needs a lot of work is the section relating to designated public office holders (DPOHs). The act, and the regulations promulgated thereunder, were never meant to regulate lobbying activity. There are some aspects it indirectly regulates through time limited prohibitions—like who can’t lobby—but regulating the activity itself was never the guiding principle behind the act. Nor should it be. Lobbying is a manifestation of both free speech and free assembly to engage with political and non-political actors alike to advance change. The question is: will changes to the act in the future adversely curb “free and open access to government” as mandated by the legislation’s preamble? The grandest absurdity of the Federal Accountability Act changes introduced by the previous government are the limitations placed on enumerated DPOHs. While we can agree that there should be a limit placed on the ability of certain high-ranking public figures to interact with government once they leave office, I do not believe that we can agree that all DPOHs should be treated the same. It is laughable to think that the array of staff found in a minister’s office will have the same post-employment influence as the minister they work for. And yet, both are subject to the same five-year prohibition on lobbying. There are many other ways we differentiate between public servants, ranging from their security clearance to their remuneration. It is appropriate to differentiate between them in this context, as well. Perhaps it is time that we differentiate between the DPOHs who have vastly different roles? Or further limit those who are captured under it? This post-employment paradox is particularly acute for those youngest political staffers who are just starting their careers in the field of public policy. It is ruinously unfair to treat them the same way we would treat those who are likely at the tail end of their careers. The Lobbying Act allows some discretion to waive these bans, but the authority granted the lobbying commissioner is very narrow. Parliament could reconsider that specific authority, and broaden the rationale for granting shorter prohibition periods. My own personal view is that no person should be banned from engaging with the government for longer than they have served in it. We have entrusted officers of Parliament with broad delegated authority to interpret their statutes—we should be willing to allow for a bit of common sense to factor into what is universally believed to be a rigidly unfair limitation on life after public service. While they are at it, Parliament can fix a constitutional booboo to add Parliamentarians to the list of designated public office holders by regulation, promulgated by regulation almost 10 years ago. We can have an intelligent debate about whether or not there should be a post-electoral limitation on the activities of Parliamentarians. I would be concerned that a person who sought re-election, and lost, had their ability to earn a living curtailed when it was (presumably?) not their choice. What cannot be intelligently discussed is that the Crown, through regulation, placed a limitation on Parliamentarians. It’s supposed to be the other way around. If Parliament wishes to place that limitation on its membership, then it should do it by statute. To have it done by regulation was an affront to their independence as Parliamentarians and the privileges appropriately afforded to all Parliamentarians. There are lots of other small little Band-Aids that could be adopted to make the act a bit smoother. I wonder, however, if a highly charged partisan environment (like a minority Parliament) gets its hands on the Lobbying Act, will it improve the act or take new steps that will reduce the great transparency that we already have? Lobbyists remain an easy political target. Sadly, there are many officials and observers alike who do not share the sentiment of the act’s preamble: lobbying is a legitimate activity. W. Scott Thurlow is an Ottawa-based lawyer who provides advice on matters related to the Lobbying Act, the Conflict of Interest Act, and assists with the development of statutes and regulations. The Hill Times

If the legislation ain’t broke …

If changes must be made to the Lobbying Act, the one area that needs a lot of work is the section relating to designated public office holders.

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If the legislation ain’t broke …

If changes must be made to the Lobbying Act, the one area that needs a lot of work is the section relating to designated public office holders.

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