New rules put squeeze on civil servants, political aides
It's certain 5-year ban on lobbying the government is unconstitutional
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by L. IAN MacDONALD
The Gazette, Wednesday, April 12, 2006
Under the terms of Stephen Harper's Accountability Act, former ministers, senior officials and staff will not be allowed to lobby the government for five years after leaving office.
And former ministerial staff will no longer be entitled to a place in the public service, but will have to win public-service positions on merit.
So it won't be easy for them to work for the government. But it will be even more difficult for them to make a living outside government.
It might make sense in Harper's world, but it sounds pretty counterproductive in the real world.
Ottawa is a village, consisting of people who work in government, people who cover government, people who have issues with government, and people who need to talk to government.
The first category is comprised of politicians and senior levels of the public service, the second of journalists, the third of special interests (now grandly styled as stakeholders) and the fourth of lobbyists and lawyers registered on behalf of their clients.
The current post-employment guidelines prohibit former officials from communicating with their former department for a one-year period. Harper is proposing a five-year cooling off period across the entire government.
This is clearly unconstitutional - an unreasonable limitation of freedom of association under Article 2 of the Charter of Rights and Freedoms. The government has three choices: It can accept a common-sense amendment in committee; it can send a reference over to the Supreme Court; or it can lose in a lower court on the way to the Supreme Court, where it would lose by a score of 9-0. It's a slam-dunk.
Of course, by then Harper will have gone back to the people and asked for a majority, saying he kept all his important promises.
The new post-employment rules mean it will be that much more difficult for the government of the day to influence the culture of the public service by placing its own advisers within positions of influence in the bureaucracy. For example, Peter Harder, a senior staffer in the Mulroney government, joined the public service and has subsequently risen on merit all the way to the top as deputy minister of Foreign Affairs.
While there's something to be said for keeping political staff out of the public service, there's an equal and opposite argument for encouraging them to join, in that they bring an understanding of the political role and pressures of a minister's office. By making it more difficult to join, Harper is encouraging his own people to move on, diminishing his own lasting influence in the permanent mandarin class.
Then there are the new rules of lobbying, which are going to create a whole new level of bureaucracy. It will no longer be enough for lobbyists to register on behalf of clients, they will now have to report every conversation with government.
"If you thought the gun registry was a $2-billion mess," says one lobbyist who knows the system, "wait till you see this."
Every time a lobbyist has a conversation, he will have to fill out an electronic form. Example: Called minister's chief of staff to invite him to Senators' game. Said he wasn't allowed to accept as the cost of the tickets violated the hospitality guidelines. Also said he couldn't attend gala at the National Arts Centre for the same reason.
Not only will the lobbyist be obliged to report this, so will the minister's chief of staff. The government will post the transaction on the Internet, where the lobbyists and representatives of competing firms will be able to read all about it.
Seeking commercial gain and advantage is obviously one reason to talk to government. But another is to try to help government by acting as an early warning system that it faces difficulty or trouble of one kind or another. But if it's going to be that much trouble to talk to government, why bother?
There are sensible elements to the Accountability Act, including revoking the CBC's exemption from Access to Information, meaning it will no longer be able to conceal expenses under the cloak of journalistic privilege.
The campaign finance reform will eliminate corporate donations altogether and reduce the limit on individual donations to $1,000 to all parties in elections and leadership campaigns. While it brings transparency and a level playing field to fundraising, it puts the Liberals at a huge disadvantage. They have always been the party of the $5,000-a-table dinner, while the Tories and the NDP are the parties of the church plate and passing the hat.
In the long run, the Liberals might well thank Harper for forcing them to adapt to the new reality. That would be then, not now.