Backgrounder on the Requirements of the Lobbying Act and of the Lobbyists' Code of Conduct

The information below provides some clarification about the role the Commissioner of Lobbying with regard to the application of the Lobbying Act (the Act) and ofthe Lobbyists' Code of Conduct (the Code).

The Lobbying Act

The Lobbying Act is based on four principles:

• free and open access to government is an important matter of public interest;
• lobbying is a legitimate activity;
• the public should be able to know who is engaged in lobbying activities; and
• a registration system of paid lobbyists should not impede free and open access to government.

There are two categories of lobbyists:

• consultant lobbyists are individuals paid to lobby on behalf of one or more clients. They must file a disclosure to register their lobbying activities within 10 days of agreeing to lobby on behalf of every client;
• in-house lobbyists (corporations and non-profit organizations) are salaried employees who lobby on behalf of their employer.  The most senior paid officer of the corporation or organization must file a disclosure and register within two months once the sum of lobbying activities performed by all paid employees equals 20% or more of the duties of one equivalent employee. Requirements vary slightly between corporations and organizations to reflect the different nature of their business.

The Registration of Lobbyists

The Commissioner of Lobbying is an independent agent of Parliament. The Commissioner's mandate, which is derived from the Lobbying Act, is to ensure that lobbying activities carried out at the federal level are transparent and meet the disclosure requirements set out in the Lobbying Act and related regulations. This is principally achieved when information about lobbying activities is published in the web-based Registry of Lobbyists. Consultant lobbyists and, in the case of in-house lobbyists, senior officers of corporations and organizations, are responsible for complying with the Lobbying Act. The Registry is used by lobbyists to disclose their lobbying activities. Canadians have access to information about lobbying activities via of the Office of the Commissioner of Lobbying (OCL)'s website at www.ocl-cal.gc.ca.

The Lobbying Act refers to two categories of individuals working at the federal level: "public office holders (POH)" and "designated public office holders (DPOH)." The POH category under the Lobbying Act is broad and includes employees of federal government departments and institutions, members of the House of Commons and the Senate, parliamentary staff, as well as members of the Canadian Forces and members of the Royal Canadian Mounted Police. Some notable exceptions are judges and lieutenant governors.

Within the category of POHs, there is a sub-category of individuals known as "designated" public office holders (DPOH). These are the public office holders at the most senior levels of government and includes positions such as the Prime Minister, ministers and ministers of State and their staff (known as exempt staff), deputy ministers, associate deputy ministers, assistant deputy ministers, and those of comparable ranks throughout the federal public service.

A further eleven positions or classes of positions were designated by way of regulation on July 2, 2008. In addition, three positions or classes of positions were designated by way of regulation on September 20, 2010. These include seven senior positions in the Canadian Forces, all Members of Parliament and all Senators, as well as any staff working in the offices of the Leader of the Opposition in the House of Commons and in the Senate, appointed pursuant to subsection 128(1) of the Public Service Employment Act, among others.

Lobbyists must be registered if they are paid to communicate with federal public office holders regarding the making, development, or amendment of legislation, bills, regulations, policies and programs, or the awarding of federal grants and contributions. Consultant lobbyists must also register if they communicate with a POH with regard to the awarding of a contract to their client or if they arrange a meeting between a client and a POH. There are some activities which do not require registration, such as simple requests for information, appearances before Parliamentary committees, and communications regarding the enforcement, interpretation or application of existing federal laws and regulations.

In addition to the underlying registration described above, lobbyists must file a monthly communication report with the Registry of Lobbyists for each oral and arranged communication they have with a DPOH. As their name suggest, these returns are to be submitted once a month and must contain the name, title and department of each DPOH with whom a lobbyist has had an oral and arranged communication, the date of the communication, and the subject matter discussed.

The Lobbyists' Code of Conduct

The purpose of the Code is to assure the Canadian public that lobbyists are required to adhere to high ethical standards with a view to conserving and enhancing public confidence and trust in the integrity, objectivity and impartiality of government decision-making. In this regard, the Code complements the disclosure and registration requirements of the Lobbying Act.

The Code begins with a preamble which states its purposes and places it in a broader context. It is followed by a body of overriding principles which are in turn followed by specific rules. The principles set out, in positive terms, the goals and objectives to be attained, without establishing precise standards. The rules provide more detailed requirements for behaviour in certain situations. The powers of investigation which are provided to the Commissioner of Lobbying will be triggered when there is an alleged breach of either a principle or a rule of the Code.

The Principles and Rules of the Code are set out in Annex I.

Other requirements of the Lobbying Act

The Act also contains requirements that are not directly related to the registration of lobbyists. Two specific requirements that generate more interest than others are:

• The Lobbying Act prohibits former designated public office holders (DPOHs) and identified former members of a Prime Minister's transition team from lobbying for a period of five years after leaving public office. This prohibition applies in the following situations: individuals may not act as a consultant lobbyist for a period of five years after they cease to be a DPOH or cease to be an identified member of a Prime Minister's transition team; individuals employed by not-for-profit organizations may not lobby for a period of five years after they leave public office; individuals employed by a for-profit corporation may not lobby for a period of five years after they leave public office, if lobbying would constitute a significant part (20% or more) of the individual's duties. The prohibition does not apply to individuals who hold a designated public office only because they are participating in an employment exchange program.

  The Commissioner of Lobbying may grant exemptions to the five-year prohibition on lobbying in certain situations described in the Lobbying Act. For example, if the individual was in a DPOH position for a short period of time, was a student, was performing administrative duties only or was temporarily performing the functions in an acting capacity, an exemption may be granted. The Commissioner may only grant an exemption if to do so would not be contrary to the purposes of the Lobbying Act.

• The Lobbying Act imposes a total ban on payment or receipt of any payment or other benefit contingent, whether in whole or in part, on the outcome of a consultant lobbyist's activity. This provision does not apply to in-house lobbyists (corporations) or in-house lobbyists (organizations).

Breaches of the Act and of the Code

All suspected or alleged breaches of the Lobbying Act and of the Lobbyists' Code of Conduct are considered and treated seriously by the Commissioner. First, the Commissioner reviews the allegation to determine if there is a breach of the Act or the Code, and if a formal investigation is necessary to ensure compliance. However, the Commissioner is required to refer a file to the Royal Canadian Mounted Police and suspend her investigation, if she has reasonable grounds to believe that an offence under the Lobbying Act or any other Act has occurred.

The Lobbying Act requires that investigations be conducted in private. When an investigation is complete, a report of the findings, conclusions and reasons for those conclusions must be tabled before both Houses of Parliament. The time it takes to complete an investigation depends largely on the complexity of the case, including the availability of supporting evidence and of credible witnesses.

The Commissioner of Lobbying believes in the principles of access and transparency that are set out in the Lobbying Act. She is continually taking measures to ensure that lobbyists, their clients, public office holders and Canadians are aware of the rationale and requirements of the Lobbying Act and that allegations of breaches of the Act and of the Code are dealt with appropriately.

Contact: Natalie Hall
Senior Communications Advisor
613-952-4306
E-mail: Natalie.Hall@ocl-cal.gc.ca

May 10, 2010

ANNEX I

Principles and Rules of the Lobbyists' Code of Conduct