Further to the Treasury Board's announcement of August 5, the Government of Canada intends to make changes to the Lobbying Act to include all MPs and Senators, as well as the senior staff in the office of the Leader of the Opposition as "designated public office holders."
This means that in carrying lobbying activities, the list of individuals that are required to be identified in having oral and arranged communication with on a monthly basis will grow.
The term "designated public office holder" (DPOH) generally refers to those officials responsible for high-level decision making in government. The term was introduced by the Lobbying Act which came into force on July 2, 2008. All those who engage in lobbying activities, defined as any oral and arranged communication with a DPOH (excluding e-mail, letter and fax communications), must report these communications on a monthly basis to the Commissioner of Lobbying.
The scope of the term under s. 2 of the current Lobbying Act and the accompanying Designated Public Office Holder Regulations include the following individuals:
- Ministers of the Crown and members of their office staff appointed under subsection 128(1) of the Public Service Employment Act
- Ministers of state and members of their office staff appointed under subsection 128(1) of the Public Service Employment Act
- Public office holders who in a department occupy:
- the senior executive position, whether titled deputy minister, chief executive officer or by some other title; or
- is an associate deputy minister or an assistant deputy minister or occupies a position of comparable rank (classified at the federal government designation of EX-04 level or higher)
- Chief of the Defence Staff (Canadian Forces)
- Vice Chief of the Defence Staff (Canadian Forces)
- Chief of Maritime Staff (Canadian Forces)
- Chief of Land Staff (Canadian Forces)
- Chief of Air Staff (Canadian Forces)
- Chief of Military Personnel (Canadian Forces)
- Judge Advocate General (Canadian Forces)
- Any positions of Senior Advisor to the Privy Council Office to which the office holder is appointed by the Governor in Council
- Deputy Minister (Intergovernmental Affairs) (Privy Council Office)
- Comptroller General of Canada
- Any position to which the office holder is appointed pursuant to paragraph 127.1(1)(a) or (b) of the Public Service Employment Act
To this list, the government intends to extend the definition to the following individuals:
- All Parliamentarians, including backbench and opposition MPs and all Senators, as well as the senior staff of the Official Leader of the Opposition.
It is important to note that this list is non-exhaustive. More positions may also be designated from time to time by the Governor in Council. If it is unclear from an individual's title if they are a DPOH for the purposes of the Lobbying Act, the onus is on the registered lobbyist to clarify with the government official in question.
The practical effect of the expanded definition is that the list of individuals required to be identified as having communication with on a monthly basis will grow. Similarly, as of the date the changes come into force, registration will be required for having communications with a Member of Parliament or Senator, or the senior staff of the Official Leader of the Opposition. This registration will also be on a monthly basis with the Commissioner of Lobbying once the intended changes to the law take effect.
A monthly report is necessary if a corporate or consultant lobbyist initiates oral and arranges communication (e.g., a meeting or telephone conference) with a DPOH concerning:
- the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
- the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
- the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
- the development or amendment of any policy or program of the Government of Canada,
- the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
- the awarding of any contract by or on behalf of Her Majesty in right of Canada.
Generally no report is required for oral and arranged communication initiated by DPOHs related to the development of legislation, regulations, or policies and programs. However, oral and arranged communications relating to financial benefits and contracts must be reported even when initiated by DPOHs.
For oral and arranged communication initiated and arranged by a lobbyist with a DPOH, the following is what must be reported by the 15th of the following month:
- the name of the DPOH with whom the communication took place,
- position title of the DPOH,
- the name of the branch or unit and the name of the department or other governmental institution in which the DPOH is employed or serves at the time of the communication,
- the date of the communication,
- the subject-matter of the communication.
Particulars will be forwarded accordingly in a subsequent notice as changes to the law are formally announced and due to take effect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.