The federal government announced, September 17, that it supports most of a parliamentary committee's recent recommendations for significant changes to Canada's Lobbying Act.1 The changes are likely to affect most companies and associations that have dealings with the Government of Canada.
At the same time, the federal government has shelved two key proposals that would have strengthened enforcement and extended the reporting obligation to cover companies and organizations that lobby infrequently.
According to its announcement, the government will pursue the following changes:
- Lobbyists will be prohibited from giving gifts to public office holders. The rules will specify the nature and value of what is permitted and what is prohibited.
- The definition of "designated public office holder"
will be extended to cover additional civil servants, including
those involved in procurement or with oversight or decision-making
functions. Currently, the definition covers officials of Assistant
Deputy Minister rank and above, as well as Ministers, MPs, Senators
and ministers' political aides. (This change can be implemented
Note: Former designated public office holders are subject to a five-year restriction on lobbying. Also, lobbying of designated public office holders is subject to a more detailed level of disclosure, through monthly reports.
- Monthly reports by company and association CEOs will contain the names of all employees who meet with designated public office holders. Currently the monthly reports name the government officials but not the company or association employees who meet them. (This change can be implemented by regulation.)
- In the five-year, post-employment, lobbying ban, the distinction between in-house lobbyists for corporations and in-house lobbyists for non-profit corporations will be eliminated. Currently, a former designated public office holder employed by a non-profit association cannot lobby in any amount (for five years), but a former designated public office holder employed by a business corporation can lobby up to 20 per cent of the time. The government announcement suggests that all former designated public office holders will be able to lobby, as in-house lobbyists, up to 20 per cent of the time.
Changes Endorsed in Principle
The government looks on the following additional changes favourably, but has not expressly promised to implement them:
- Consolidating the post-employment restrictions on former government officials under a single authority. Currently, some post-employment restrictions are found in the Lobbying Act, enforced by the Lobbying Commissioner, while others are in the Conflict of Interest Act, enforced by the Conflict of Interest and Ethics Commissioner.
- Making it an offence for an in-house lobbyist to lobby without being registered.
- Treating members of boards of directors (those who are remunerated) who lobby as in-house lobbyists. Currently they must register as consultant lobbyists.
- Prohibiting individuals from lobbying government, and having a contract to provide advice to government, on the same subject matter. The same prohibition would apply to entities "unless safeguards to avoid a conflict of interest are verifiably in place."
Recommendations being shelved
Two very important recommendations of the parliamentary committee have been shelved.2 (In the government's words, the recommendations are noted and will continue to be carefully studied.)
First, the government will not introduce legislation to remove the minimum threshold for reporting in-house lobbying. (Currently, not all lobbying by employees of companies and associations must be registered and reported. Registration is required only if the total amount of lobbying by all the employees of a corporation or organization exceeds a minimum threshold, equivalent to 20 per cent of one employee's time, or 0.2 FTE. Lobbying below that amount does not need to be disclosed.3)
Second, the government is not prepared to introduce legislation giving the Commissioner of Lobbying the power to impose fines for breaches of the Lobbying Act or the Lobbyists' Code of Conduct. This proposal had been fiercely opposed by the lobbying industry. The industry has succeeded, at least for now, in blocking increased enforcement.
The federal government is expected to introduce legislation to implement these changes (or enact regulations to give effect to changes that can be made by regulation). Its time frame for action is presently unknown.
1 In its May 14, 2012, report, Statutory Review of the Lobbying Act: The First Five Years, the House of Commons Standing Committee on Access to Information, Privacy and Ethics made eleven recommendations that would significantly affect federal lobbying in Canada.
2 A third recommendation, enshrining in the Act the Commissioner's process for administrative review of possible breaches, was also shelved but is not considered significant enough to discuss in this bulletin.
3 The 20-per-cent threshold only applies to in-house lobbying. There is no minimum threshold for reporting consultant lobbying. Any amount of consultant lobbying, no matter how small, is subject to registration and reporting.
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