CODES OF CONDUCT FOR LOBBYISTS

Three types of codes of conduct affect the operation of lobbyists in a number of countries. The least coercive are the professional codes adopted in several jurisdictions by associations that have been organized by lobbyists themselves. Consequently, though some associations of lobbyists have attempted to discipline disobedient practitioners, the open nature of the business and public ignorance of professional codes has rendered their efforts largely ineffective. The codes, therefore, state important ground rules for lobbyists in their relations with one another, with clients and with government officials, but because enforcement is extremely limited they do little to constrain those lobbyists who wish to break the rules.

Employment and post-employment codes and the rules governing the conduct of members of legislatures are in several ways the more significant influences on the behaviour of lobbyists. A number of jurisdictions have rules in place that purport to regulate the conduct of members of the legislature and public servants, and though lobbyists may not be specifically enjoined to respect them, the consequences of ignoring them, as far as public officials are concerned, will act as a constraint on their behaviour and thus on that of lobbyists.

A few jurisdictions impose codes of conduct on lobbyists, either as a condition of access to legislatures and government offices, or as in the case of Canada, as part of the legislation regulating lobbying. The European Parliament, permits lobbyists to hold passes to the legislature on condition that they observe a code of conduct. Failure to comply with the code can lead to withdrawal of the lobbyist’s pass, and thus to the denial of access to Parliament.

Canada appears to be the only one state that has legislated a code of conduct. The code, which came into effect in 1997, has two elements: a statement of principles and a set of rules which flow from those principles. There are three principles, calling on lobbyists to conduct themselves with openness, with integrity and honesty, and in a professional manner. Thus, the principle of openness (or transparency) invokes three standards: an obligation to identify to officials the beneficiaries of the lobbying activity and the reasons for it; a commitment to convey information accurately, taking care not to mislead those being lobbied, and, thirdly, a requirement to remind office holders of the lobbyist’s own obligation to adhere to the Act and the Code. The standards relating to integrity and honesty are confined to a commitment to respect the confidential nature of information obtained and not to use confidential information to the disadvantage of their client, employer or organization. The principle of professionalism is covered by the rules relating to conflict of interest, requiring lobbyists to avoid representing conflicting or competing interests and to avoid placing office holders in positions of conflict of interest.

In 2015, the Commissioner of Lobbying amended the Code, following a public consultation. The Code was referred to the House of Commons Standing Committee on Access to Information, Privacy and Ethics in spring 2015, before being published in the Canada Gazette. This version of the Code came into force on December 1, 2015.

Canadians should expect that all who participate in the development and application of public policy, laws and regulations will act in a manner that demonstrates respect for Canada’s democratic institutions.

The purpose of the Code is to assure the Canadian public that when lobbying of public office holders takes place, it is done ethically and with the highest standards with a view to enhancing public confidence and trust in the integrity of government decision-making. In this regard, the Code complements the registration requirements of the Lobbying Act, which came into force on July 2, 2008.

The term "public office holder" as defined in the Lobbying Act includes Senators and Members of the House of Commons and their staff, Ministers and their staff, officers and employees of federal departments and agencies, Governor in Council appointees, and members of the Canadian Armed Forces and the Royal Canadian Mounted Police.

The Code applies when a registration is required under the Lobbying Act, whether or not a registration has actually been filed. Specifically, the Code applies to individuals who are required to register or be listed in a registration under sections 5 or 7 of the Lobbying Act.

The preamble of the Lobbyists’ Code of Conduct states its purposes and situates the Code in a broader context. The preamble is followed by a body of overarching principles and a set of specific rules. The principles set out the goals and objectives to be attained, while the accompanying rules provide more detailed requirements for behaviour related to the principles in applied situations. Lobbyists, when engaging in lobbying activities, shall meet the standards set out in the principles and rules of the Code.

Under the Lobbying Act, the Commissioner shall open an investigation when the Commissioner has reason to believe one is necessary to ensure compliance with the Act or the Code. The Commissioner of Lobbying has the authority to enforce the Lobbyists’ Code of Conduct if there is an alleged breach of either a principle or a rule of the Code. The Code is a non-statutory instrument, and carries no fines or jail terms. Anyone suspecting non-compliance with the Code should forward information to the Commissioner. Investigations are conducted in accordance with the Lobbying Act and respecting the principles of natural justice. At the end of an investigation, the Commissioner shall table a Report in both Houses of Parliament, detailing the findings and conclusions and reasons for these conclusions.

Principles

Respect for Democratic Institutions

Lobbyists should act in a manner that demonstrates respect for democratic institutions, including the duty of public office holders to serve the public interest.

Integrity and Honesty

Lobbyists should conduct with integrity and honesty all relations with public office holders.

Openness

Lobbyists should be open and frank about their lobbying activities.

Professionalism

Lobbyists should observe the highest professional and ethical standards. In particular, lobbyists should conform fully with the letter and the spirit of the Lobbyists' Code of Conduct as well as with all relevant laws, including the Lobbying Act and its regulations.

Rules

Transparency

Identity and purpose

1. A lobbyist shall, when communicating with a public office holder, disclose the identity of the person, organization or corporation on whose behalf the communication is made and the nature of their relationship with that person, organization or corporation, as well as the reasons for the approach.

Accurate information

1. A lobbyist shall avoid misleading public office holders by taking all reasonable measures to provide them with information that is accurate and factual.

Duty to disclose

1. A consultant lobbyist shall inform each client of their obligations as a lobbyist under the Lobbying Act and the Lobbyists’ Code of Conduct.
2. The responsible officer (the most senior paid employee) of an organization or corporation shall ensure that employees who lobby on the organization’s or corporation’s behalf are informed of their obligations under the Lobbying Act and theLobbyists’ Code of Conduct.

Use of information

1. A lobbyist shall use and disclose information received from a public office holder only in the manner consistent with the purpose for which it was shared. If a lobbyist obtains a government document they should not have, they shall neither use nor disclose it.

Conflict of Interest

1. A lobbyist shall not propose or undertake any action that would place a public office holder in a real or apparent conflict of interest.

In particular:

• Preferential access
  1. A lobbyist shall not arrange for another person a meeting with a public office holder when the lobbyist and public office holder share a relationship that could reasonably be seen to create a sense of obligation.
  2. A lobbyist shall not lobby a public office holder with whom they share a relationship that could reasonably be seen to create a sense of obligation.
• Political activities
  1. When a lobbyist undertakes political activities on behalf of a person which could reasonably be seen to create a sense of obligation, they may not lobby that person for a specified period if that person is or becomes a public office holder. If that person is an elected official, the lobbyist shall also not lobby staff in their Office(s).
• Gifts
  1. To avoid the creation of a sense of obligation, a lobbyist shall not provide or promise a gift, favour, or other benefit to a public office holder, whom they are lobbying or will lobby, which the public office holder is not allowed to accept.