by Holly Walker
Below is an opinion piece by Guy Giorno, a Canadian legal expert on lobbying transparency laws, written in response to the Attorney General’s recent report on the Bill of Rights implications of my Lobbying Disclosure Bill.
Attorney General Chris Finlayson’s conclusion that Holly Walker’s Lobbying Disclosure Bill contravenes the Bill of Rights Act was surprising – so much a surprise that it was noticed on the other side of the world.
Ms Walker wants to make lobbyists report their contacts with parliamentarians, something already required in several other countries. Canada, for example, has deep experience with lobbying transparency legislation. Its federal Parliament enacted a lobbying transparency law more than two decades ago. Seven of ten Canadian provincial legislatures have followed suit.
Mr. Finlayson’s belief that lobbying transparency is a potential threat to rights – as opposed to a law that helps protect our democracy – would catch Canadians by surprise.
It is not that Canadians prize their freedoms any less than New Zealanders. Canada’s Constitution protects freedom of expression. The test applied by the Canadian courts in determining whether a law may justifiably restrict free expression is essentially the same as New Zealand’s.
The Attorney General rightly noted that free speech is an essential ingredient of democracy. He might also have mentioned that the particular form of expression involved in lobbying – citizens’ communications with government – is one of our oldest and most historic rights.
The right to advocate to government can be traced to Magna Carta of 1215, which confirmed the right of barons to seek the redress of grievances against the Crown. The Bill of Rights of 1689 declared, “That it is the right of the subjects to petition the king …”
Lobbying transparency laws, like Holly Walker’s bill, recognise that lobbying is an ancient, democratic right. Such laws do not prevent lobbying. They just prevent hidden lobbying.
Everyone has the right to try to influence public policy. Nobody has the right to influence public policy in secret.
Ms Walker’s bill contemplates a code of conduct for lobbyists, which surely is unobjectionable. Free speech is not infringed by requiring honesty and ethical behaviour of those who are paid to influence government.
Apart from requiring ethical conduct, stripped to its essentials, a lobbying disclosure law does not regulate anything. Like other transparency laws such as the Official Information Act, lobbying disclosure merely makes facts available to the public. It is left to the political process (which includes the opposition, the news media, interest groups and ordinary members of the public) to decide whether and how to utilise those facts.
Most legislative proposals are amenable to improvement and Ms Walker’s bill is no exception. Here again the international experience can be valuable. It seems an exaggeration, however, to argue, as the Attorney General does, that for want of a few small improvements the bill is “an unacceptable limit on a core element of freedom of expression.”
For example, the Attorney General notes that the bill would require disclosure of all lobbying, even as simple as “a one-off email.” There is no correlation, however, between the brevity of a communication and the need for transparency. A short e-mail or a brief phone call to a Cabinet Minister from the president of a corporation might be most significant and influential.
Another of Mr. Finlayson’s objections is that the bill fails to exclude those who are not professional lobbyists. In reality, many people who do not consider themselves lobbyists nonetheless engage in lobbying: some lawyers, for example; also corporate executives and directors. The law should illuminate all paid attempts to influence, not just the actions of the self-identified lobbying industry.
At the heart of the Attorney General’s analysis of the Lobbying Disclosure Bill is the assumption that some people will avoiding communicating with an MP because they would prefer not to register and to be stigmatised as a lobbyist. In other words, some people who are quite prepared to contact the government in secret will cease to communicate if the existence and the nature of their contacts become public.
No doubt this is so. In every democracy there are conversations between private interests and politicians that the participants would be ashamed to reveal.
Isn’t that precisely why every country needs a lobbying disclosure law?
If the shame of disclosure makes someone, upon reflection, decide not to influence a politician, it does not follow that the disclosure law placed a restriction on the attempt to influence. Ultimately the nature of the communication, not the disclosure law, would be responsible for the feeling of shame and the decision to refrain from lobbying.
In his critique of the bill, Mr. Finlayson cited the United States constitution and quoted George Washington. We would do well to consider another U.S. voice, the eminent jurist Louis Brandeis. A century ago, Justice Brandeis wrote that, “Sunlight is said to be the best of disinfectants.”
It is bizarre to suggest that sunlight – a law that tries to illuminate influences on government – is a threat to fundamental freedoms.
The greater threat is allowing politicians and lobbyists to operate in darkness.
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Guy W. Giorno is recognised as a Canadian legal expert in lobbying transparency. He is also the former chief of staff to the current Prime Minister of Canada.