In January the Registrar of Lobbyists issued a report entitled “Lobbying in British Columbia: The Way Forward”. It is a report on consultations she initiated about, in her words, “whether the time has come for BC to adopt its own lobbyist code of conduct.” The Registrar says that she generally supported a code of conduct, although she also says that she conducted this consultation with an open mind. The report contains 13 recommendations. Taken together, these changes would represent a major reform – and a very significant change of direction – for BC’s Lobbyists Registration Act.
Now the question whether it is advisable to legislate a code of conduct for lobbyists in British Columbia is certainly worth discussing. I happen to have the view that we should not do this. When I introduced BC’s first lobbyist registration legislation in 2001 the policy objective was transparency. The goal of the Act was to help shine a light on an important way in which policy making happens by requiring lobbyists to make their activities known by disclosing them in a registry available for public viewing. It is one thing to enhance transparency by requiring lobbyists to register. It is quite another thing – and a much more intrusive exercise of state power - to enact laws which regulate the practice of lobbying.
My point here, however, is not to debate the merits of legislating lobbyist ethics. I have a different question. Where did Registrar Denham obtain the authority to conduct this consultation?
The registrar of lobbyists is a statutory office, created by an Act of the Legislative Assembly. It is not a self-help club, or political advocacy organization. The registrar’s powers are clearly set out in the Act. Here, in summary, is what they are:
1. To establish and maintain a registry in which a record of all returns and other documents submitted under the Act are to be kept.
2. To verify the information contained in returns filed under the Act.
3. To reject returns that do not comply with the Act.
4. To undertake investigations and inquiries into compliance with the Act and, in appropriate cases, impose administrative penalties on those who are not in compliance.
Lastly, the registrar is given the authority to “develop and conduct public education and information designed to promote awareness and understanding of this Act.”
Please note that the “education and information” authority is carefully and clearly written; it is to promote awareness and understanding of this Act. It is not to advocate (I was going to say lobby) for changes to it. Nothing in the Act gives the registrar the power or authority to discuss or consider, let alone advocate for, changes that would represent a significant departure from the policy intention of the existing Act.
One of the water cooler complaints commonly made about bureaucracies is that they are self-enlarging. It’s a harsh criticism, but there’s a grain of truth in it. Give a public official a job to do and all too often they will find a way to start agitating to make their job bigger. In other contexts it’s called “mandate creep.” It’s one of the ways government relentlessly grows over time.
Put simply, the job of the registrar of lobbyists is to administer the Act she has been given, not to try to change it. The registrar is not a policy maker. I realize this is probably a desperately unpopular view. It’s certainly not a personal criticism; Registrar Denham is a thoughtful, informed, and highly articulate commentator on lobbying regulation. I certainly would have no complaint if she decided to advocate for changes to lobbying law on her own time. But it’s not in her job description. It’s not what she’s paid to do.
This is far from just a technical complaint. It reflects a more profound concern about the role and responsibility of public officials. It also reflects my view that it’s actually supposed to be legislators, not officers of the Legislature, who decide whether, how and when to make and change our laws. I’m not saying we should never empower public officials to advocate for law reform. But when it’s not in their job description, it’s none of their business.
And there’s one more thing. The Registrar has coercive powers. She can deprive people of their right to earn a living. I don’t take these powers lightly and neither should you. So. What if I were to make it very clear that I disagree with Registrar Denham’s views about whether BC should legislate a code of conduct for lobbyists? And then let’s say someone decides to file a complaint against me as an occasional lobbyist for failing to comply with the Act. Should I have confidence that the Registrar will dispose of that complaint fairly and impartially, or should I be worried about our public disagreement on lobbyist regulation? There’s a reason why judges are not permitted to undertake – of their own volition – wide-ranging public consultations on the state of the law. We expect them to be independent and neutral, to apply the law, rather than to make it. Doesn’t that same principle apply here, too?