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Bill 80 Lobbying Transparency and Ethics Act
Summary
Memorandum of the Quebec Ombudsman
submitted to the Committee on Public Finance
May 2002
Introduction
The Quebec Ombudsman has submitted to the Committee on Public Finance of the National Assembly, commentaries and propositions regarding Bill 80, the Lobbying Transparency and Ethics Act.
The Ombudsman welcomed the opportunity to state the legitimate values behind lobbying practices, and to propose amendments in order to improve the Bill. The following are the thought guidelines laid before the National Assembly.
The legitimacy of lobbying
The Quebec Ombudsman recognizes the legitimacy of lobbying and its impossible dissociation from the democratic process. Trying to influence the content of public policies or attempting to gain advantages from an established program is a fundamental right based upon two freedoms recognized by charters in force in Quebec: freedom of speech and freedom of association.
The Quebec Ombudsman therefore proposes that:
The Act make more explicit reference to democratic and constitutional principles on which the legitimacy of lobbying is based.
Transparency for everyone
The Bill provides that only profit oriented organizations or groups formed by such organizations will be considered as lobbyer. The Quebec Ombudsman believes that for the sake of transparency, all lobbying organizations trying to influence policy makers and the content of public policies which have consequences on the whole of the population, be included in the Bill. Basically, people have the right to know who is trying to influence who and on what issue, and what are the means used to do so.
The Quebec Ombudsman therefore proposes that:
The Act apply to lobbyists working for labour unions, professional corporations and all other organizations pursuing ideological, humanitarian, religious or other goals.
Administrators of non-profit organizations (NPO’s): lacking of transparency
In the past years, eight non-profit organizations (NPO’s) have been set up by the Government to help in administering public funds to other organizations. Hundreds of millions of dollars have been entrusted to these NPO’s to administer.
The Bill acknowledges dutifully that persons appointed and employees in these organizations are "public office holders". Indeed these persons are responsible for the administration of public grants and can thus be subject to lobbying.
The Quebec Ombudsman notes however that these organizations do not guarantee any transparency as other state departments or agencies do since the Auditor General is not the one responsible for their "regular" auditing; they do not have to deliver accountability whatsoever to the National Assembly; and they are not subject to clauses of disclosure provided by the Act respecting Access to documents held by public bodies and the protection of personal information.
The Quebec Ombudsman therefore proposes that:
The NPO’s set up by the Government to help in administering public funds be submitted to the same rules of disclosure and accountability that other departments and agencies are.
Section 24 – Terms of compensation: moderating limitations
The Bill proposes to prohibit lobbyists from activities that provide "compensation contingent on the achievement of a result or the lobbyist’s degree of success." Lobbyists will also be prohibited from activities that provide "compensation derived from a grant or a loan from the government, a municipality or a government or municipal body or agency."
People in support of these clauses have chiefly emphasized that such practices could lead to abuse and that government grants should not be used to obtain government grants. The Quebec Ombudsman agrees the arguments are substantiated but fears that such clauses could favor individuals, companies or organizations who are financially secure at the expense of those who are less. Besides, how efficiently could such practices be controlled without meeting with difficulty. The Ombudsman thus feels that in the present case, to restrict is better than to prohibit.
The Quebec Ombudsman proposes that:
The Act allow within specified limits that lobbyists’ activities provide a compensation contingent on the achievement of a result or the lobbyist’s degree of success.
The Act allow within specified limits that part of government grants or loans be devoted to compensation of lobbying activities.
Sections 25, 26 and 27 – Former public office holders: extending limitations?
The Bill provides that former public office holders will refrain from lobbying activities for a certain period of time. The Quebec Ombudsman fully agrees with such clauses aiming to reduce the risk of "palling" or undue influence. However, the Ombudsman has observed that these limitations aim to restrict former public office holders from becoming consultant lobbyists only. They do not apply to those who could become enterprise lobbyists or organization lobbyists. The Ombudsman did not obtain satisfactory explanations justifying the relevancy of making such a distinction.
The Quebec Ombudsman proposes that:
Former public office holders be subject to the same limitations with regard to lobbying activities after their term of office, should they be consultant lobbyists, enterprise lobbyists or organization lobbyists.
The Quebec Ombudsman has also observed that former MNA’s, former executives of NPO’s set up to administer public funds, as well as former senior officers of a party or parties forming the Government are not included in any of the limitations. The Ombudsman raises the issue in the cases where these persons could have had access to privileged information, as ministers, senior public servants and cabinet personnel do.
The Quebec Ombudsman proposes that:
The legislator examine if MNA’s, executives of NPO’s set up by the Government to administer public funds, as well as senior officers of a political party or political parties forming the Government should be included in the persons subject to limitations as far as lobbying activities are concerned after their term of office.
The one-sidedness of the Lobbyists Commissioner: compromising the enquiries
The Lobbyists Commissioner is responsible, especially in conducting enquiries, for monitoring and controlling lobbyists and their activities. The Commissioner cannot conduct enquiries on public office holders and their acts. The Quebec Ombudsman is worried that enquiries conducted could be incomplete and that their findings could sometimes be unjust for one of the parties involved. One must remember that "it takes two to tango". The Ombudsman wishes the legislator to share in his doubts.
Conclusion
The Quebec Ombudsman supports the aims of the Bill and the principles on which it is based, and wishes that the propositions that have been made, help in their attainment.
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