The Lobbying Act. Karen E. Shepherd Commissioner. February 8, Commissariat au lobbying du Canada

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1 Office of the Commissioner of Lobbying of Canada Commissariat au lobbying du Canada The Lobbying Act Karen E. Shepherd Commissioner February 8, 2012

2 Lobbying Legislation in Canada From 1965 to 1985, several initiatives relating to public service ethics were introduced in Parliament through Private Members bills. In 1985, these initiatives resulted in Bill C-82, the first Lobbyists Registration Act (LRA) which came into force in In 1996, an updated LRA came into force it provided the authority to create a Lobbyists Code of Conduct. In 2005, further amendments to enhance transparency came into force. 2

3 The Lobbying Act On July 2, 2008, the Lobbying Act (LA) came into force. Created the Commissioner of Lobbying position as independent Agent of Parliament Category of Designated Public Office Holder (DPOH) introduced Post-employment prohibition on lobbying for DPOH Monthly Disclosure of lobbying activities Prohibition of contingency (success) fees Increased fines for breaches 3

4 The Commissioner of Lobbying Independent Agent of Parliament Appointment for a seven-year term Enhanced investigative powers Authority to grant exemptions to the five-year prohibition on lobbying Mandate includes: Establishment and maintenance of a publicly-available registry Enforcement of the Lobbying Act and Lobbyists Code of Conduct Raising awareness of lobbyists, POHs and public through outreach and educational programs 4

5 Four Principles The Lobbying Act is based on four principles: Free and open access to government is an important matter of public interest. Lobbying public office holders is a legitimate activity. It is desirable that public office holders and the public be able to know who is engaged in lobbying activities. A system for the registration of paid lobbyists should not impede free and open access to government. 5

6 What is Lobbying? Lobbying is: Communicating with a public office holder, for payment, in respect of: The development of any legislative proposal. Introduction, defeat or amendment of any Bill or resolution. Making or amendment of any regulation. Development or amendment of any policy or program. Awarding of any grant, contribution or other financial benefit. The awarding of any contract (consultant lobbyists). Arranging a meeting between a public office holder and any other person (consultant lobbyists). 6

7 Two types of lobbyists 1. Consultant Lobbyist: Paid to communicate on behalf of a client May be an individual who communicates with or arranges meetings with a public office holder on behalf of his/her client. Consultant lobbyists must file an initial registration for each client no later than 10 days after entering into the undertaking. 7

8 Two types of lobbyists - continued 2. In-House Lobbyists Corporations: Works for compensation in an entity that operates for profit. Organizations: Works for compensation in a non-profit entity. Organizations and corporations must file an initial registration no later than two months after the day on which the requirement to file a registration arises. The need to register is triggered when lobbying activities constitute a significant part of the duties (interpreted as 20%) of one person s time. 8

9 Who is Lobbied? Public Office Holders (POHs) are: Any officers or employees of Her Majesty in right of Canada; Members of the Senate or the House of Commons or members of their staff; GIC appointees, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province; Officers, directors or employees of any federal board, commission or other tribunal as defined in the Federal Courts Act; and Members of the Canadian Armed Forces and the RCMP. 9

10 The Act defines Designated Public Office Holders Designated Public Office Holders are defined in the Act as: Ministers of the Crown or Ministers of State and any person employed in their offices who are appointed under subsection 128(1) of the Public Service Employment Act; POHs who, in a department within the meaning of paragraph (a), (a.1) or (d) of the definition department in section 2 of the Financial Administration Act: Occupy senior executive positions, whether by the title of deputy minister, chief executive officer or by some other title, or Are associate deputy ministers, assistant deputy ministers or occupy a position of comparable rank, and Any individual who occupies a position that has been designated by regulation. 10

11 Designated Public Office Holder Regulations The Designated Public Office Holder Regulations designate positions or classes of positions, including: As of July 2, 2008: Seven senior positions in the Armed Forces. Two classes of positions in the 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 (PSEA) As of September 20, 2010: All Members of Parliament and Senators Staff in the offices of the Leader of the Opposition in the Senate or House of Commons, appointed pursuant to Section 128(1) of the Public Service Employment Act. 11

12 The Registry of Lobbyists The Registry of Lobbyists is available online. Filing a registration is free for lobbyists, as is searching the Registry. The Registry of Lobbyists can be searched by anyone by visiting the website of the Office of the Commissioner of Lobbying at: 12

13 What Information is in the Registry? The Registry of Lobbyists contains information about: Who lobbies for which firms, corporations, organizations or associations; Which parent and subsidiary companies or corporations benefit from lobbying activities; The organizational members of coalition groups; A general description of the subject matter of the lobbying activities, as well as additional particular details; Which Government of Canada departments or agencies are being contacted; The names and descriptions of the specific legislative proposals, bills, regulations, policies, programs of interest and grants, contributions or contracts sought; The positions former public office holders have held within the Government of Canada before they started lobbying; and Certain details regarding oral and arranged communications with designated public office holders. 13

14 Monthly Disclosures by Lobbyists Lobbyists must file a monthly report no later than 15 days after the end of every month if: Oral and arranged communication with a DPOH took place during the month being reported on. Information contained in an active registration is no longer correct or additional information needs to be added (i.e. a new department is being lobbied) The lobbying activities have terminated, or Five months have elapsed since the end of the last month in which a return was filed. 14

15 Monthly Communication Reports A communication must be disclosed in a monthly report if: It is both oral and arranged, It is requested by the lobbyist, There is a time interval between the request and the communication, The arranged communication is: A phone conversation A meeting Any other oral communication. It is initiated by a DPOH when the subject matter relates to the awarding of grants, contributions or other financial benefits or the awarding of any contract. 15

16 Information in a Monthly Communication Report Name and position title/military rank of the DPOH, Government institution of the DPOH, Date of the communication, Subject matter of the communication (ex. Industry, Health, Environment, etc.) Verification: The Commissioner of Lobbying may verify with DPOHs the information submitted by lobbyists in a monthly report. 16

17 What Types of Communications do not Require Registration? The following types of communications do not require registration: Oral or written submissions to Parliamentary Committees. Oral or written communications to a public office holder concerning the enforcement, interpretation or the application of any Act of Parliament or regulation. Oral or written communications made to a public office holder that are simple requests for information. 17

18 Who Does Not Need to Register? Certain individuals are not required to register: Members of the legislature of a province or their staff, Provincial government employees, Members of Municipal councils or their staff, as well as municipal employees, Members of a council of an Indian band or their staff, as well as band council representatives, Members of an aboriginal government, Diplomatic agents, consular officers or official representatives of a foreign government, and Officials of the United Nations or other international organization that has been granted privileges and immunities. 18

19 Compliance Does Not Always Require Registration Organizations and Corporations may conduct some lobbying activity and still not be required, under the Lobbying Act, to file a registration IF the cumulative lobbying activities of all employees do not constitute 20% or more of one person s time over a onemonth period. Volunteers are not required to register as they are unpaid. Citizens may communicate with government on their own behalf without being required to register. 19

20 The Five-year Prohibition on Lobbying Former designated public office holders are subject to a fiveyear prohibition from lobbying, including: Working as consultant lobbyists, Carrying out lobbying activities on behalf of an organization, and Being employed as an in-house lobbyist (Corporations) if lobbying constitutes 20% or more of their duties. There is an exception to the five-year prohibition for former designated public office holders who occupied positions as part of an employment exchange program such as Interchange Canada. The Commissioner of Lobbying may grant exemptions to the five-year prohibition in certain situations described in the Lobbying Act. 20

21 The Lobbyists Code of Conduct The purpose of the Lobbyists Code of Conduct is to assure Canadians that lobbying is done ethically and with the highest standards. Lobbyists are required to comply with the Code. The Commissioner of Lobbying has the authority to administer and enforce the Code. 21

22 Breaches of the Act or 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. 1) 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. 2) The Commissioner is required to refer a file to the RCMP and suspend her investigation, if she has reasonable grounds to believe that an offence under the Lobbying Act or any other Act has occurred. 22

23 Investigations are Conducted in Private 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. 23

24 Penalties and Sanctions Under the Lobbying Act, individuals who fail to file a return or knowingly make false or misleading statements in documents provided to the Commissioner are liable: On summary conviction, to a fine not exceeding $50,000 or to imprisonment up to six months, or to both; and On proceedings by way of indictment, to a fine not exceeding $200,000 or to imprisonment up to two years, or to both. Additionally, the Commissioner can prohibit an individual found guilty of an offence from lobbying for a period not to exceed two years. The Lobbyists Code of Conduct is a non-statutory instrument and, as such, does not carry criminal penalties. However, if the Commissioner conducts an investigation under the Act or the Code, she must table a report to Parliament detailing her findings, conclusions and reasons for these. 24

25 Contact Office of the Commissioner of Lobbying of Canada 255 Albert Street 10th Floor Ottawa, Ontario K1A 0R5 Telephone: Facsimile: Website: