ELEMENTS OF CANADIAN LOBBYING LEGISLATION

Canada has over two decades of experience in administering legislation on lobbying. During this time, growing expectations for government transparency and integrity have resulted in lobbying remaining in the spotlight and on the political agenda. The Lobbyists Registration Act was Canada's initial federal legislation regarding the registration of lobbyists. It came into force in 1989. Since then, the legislation has been amended on a number of occasions. In 2008 the legislation was amended and renamed the Lobbying Act. The Lobbying Act created the position of the Commisioner of Lobbying, who is an agent of the Parliament of Canada. The Commissioner is responsible for maintaining the Registry of Lobbyists and for the administration of the Lobbying Act and the Lobbyist's Code of Conduct, which governs the behaviour of lobbyists.

1. Definition of lobbyists and lobbying activities

Canada's lobbying legislation has never included a definition of 'lobbyists'. Rather, the law has always focused upon the types of activities that must be registered. In 2005, the definition of the activities that constitute registrable lobbying activity was amended to clarify that all communications with public office holders regarding certain subjects were to be considered registrable lobbying activities. The registration requirements in the Lobbying Act contain clear statements regarding when persons who communicate with federal public office holders must register their lobbying activities. The Act requires that individuals must be communicating with public office holders, for payment regarding the subjects described in the Act. Communications regarding the development of legislative proposals, the making or amendment of laws and regulations, the development or amendments of policies or programmes of the government and the awarding of grants, contributions or other financial benefits are all subjects that require registration as a lobbyist. For individuals who are not employed as employees of corporations or organisations, communicating regarding government contracts and arranging meetings with public office holders are also registrable activities.

2. Disclosure Requirements

Initially, Canada's lobbying legislation required minimal disclosure of lobbyists, effectively asking for little more than the information set out on a typical business card. The disclosure requirements contained in the Lobbying Act are extensive, covering such matters as the identity of clients, the identity of subsidiary corporations that benefit from the lobbying activity and government funding received by the corporation or organisation represented. In addition, particulars of the lobbying activity, such as a description of the specific legislation, policy or programme that is the subject of the lobbying activity must be described. In 2008, changes to the legislation provided for the reporting on a monthly basis of certain 'oral and arranged communications' with a new category of public office holders called designated public office holders. This new requirement provides for increased transparency, as the Registry of Lobbyists reveals the identity of the designated public office holders that were lobbied regarding particular subjects. The Designated Public Office Holders, Regulations were amended September 10, 2010. As a result, the definition of a designated public office holder was expanded to include all Members of Parliament and all Senators, as well as any staff working in the offices of the Leaders of the Opposition in the House of Commons and the Senate.

3. Rules and Guidelines

The Lobbyists' Code of Conduct has been in place since 1997. It governs the behaviour of lobbyists by providing a framework of principles for professional standards and a set of eight rules. It establishes guidelines for the behaviour of lobbyists vis-à-vis their clients and with respect to their interaction and communications with public office holders. The Commissioner reports on breaches of the Code directly to Parliament.The Commissioner's reports, which are made public discuss cases of non-compliance with registration requirements and the failure to disclose accurate information. The reports serve as an educational tool for lobbyists and as an incentive to lobbyists to comply with the Lobbyists' Code of conduct.

In addition, the changes to the Lobbying Act enacted in 2008 introduced a five-year post-employment prohibition on lobbying activity by former designated public office holders. This prohibition was enacted specifically to curtail revolving door practices. This post-employment lobbying prohibition is very lengthy by international standards.

4. Compliance Procedures

The Commissioner utilizes a continuum of monitoring and enforcement mechanisms in administering the Lobbying Act. The Lobbying Act sets out offences that must be prosecuted in a court of law. When the Commissioner finds such circumstances, appropriate matters are referred to the police for investigation and possible prosecution. For less serious alleged breaches of the Lobbying Act, such as late filing, alternative means are used to ensure compliance. The Commissioner investigates alleged beaches of the Lobbyists' Code of Conduct and when it is found that a lobbyist has breached the Code, the Commissioner tables a Report on Investigation in Parliament in order to publicize the findings and conclusions. In addition, administrative procedures have been developed by the Office of the Commissioner of Lobbying to monitor compliance by lobbyists with the registration and reporting requirements in the Lobbying Act. The Office of the Commissioner of Lobbying is developing a more strategic approach to compliance verification using the information in the Registry of Lobbyists.

5. Integrity and Transparency

The Lobbying Act provides the Commissioner with an explicit education mandate to foster public awareness regarding the requirements of the Act. The Office of the Commissioner of Lobbying has an extensive educational programme that targets public office holders, lobbyists and their advisors, academia and other interested parties. The Office of the Commissioner of Lobbying has continuously improved the Registry of Lobbyists, both in terms of lobbyists' experience inputting the required information, and the public's access to this information. This helps to ensure that electronic registration and report-filing systems facilitate compliance with the Act's registration requirements.

Conclusion

While Canada has arobust system for lobbying registration and regulation, it is important to continually review the regime, to make certain that it is meeting the objective of ensuring the transparency of federal lobbying activities in Canada. The Lobbying Act includes a provision requiring a statutory review by a Parliamentary committee every five years.

The Commissioner of Lobbying

Mandate

The Commissioner of Lobbying's mandate, derived from the Lobbying Act, is to ensure transparency of the lobbying of federal public office holders. This contributes to increasing the confidence Canadians have in the integrity of government decision making.

The Commissioner's mandate is threefold:

• maintaining the Registry of Lobbyists, which contains and makes public the registration information disclosed by lobbyists;
• developing and implementing educational programmes to foster public awareness of the requirements of the Act; and
• conducting reviews and investigations to ensure compliance with the Act and the Lobbyists' Code of Conduct.

1. Maintain the Registry of Lobbyists

The Registry of Lobbyists is accessible 24 hours a day, seven days a week on the website of the Office of the Commissioner of Lobbying.

The Registry discloses details about who is being paid to communicate with federal public office holders and on what subject matters. It is the central source of information about individuals, not-for-profit organizations and for-profit corporations who lobby the federal government by communicating with elected officials or public servants.

The information contained in the Registry includes:

• who lobbies for which firms, corporations, organisations 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 lobbying activities, as well as some details;
• which Government of Canada departments or agencies are being contacted;
• the names and descriptions of the specific legislative proposals, bills, regulations, policies, programmes 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
• information regarding oral and arranged communications with designated public office holders.

This information is publicly available online and is easily searchable by users at no cost.

In accordance with the Act, lobbyists must disclose oral and arranged communications with designated public office holders (DPOHs) on a monthly basis.

The Commissioner's Office has developed client service standards for registration processing times.

2. Deliver an Education and Awareness Programme

The Act provides the Commissioner of Lobbying with an explicit mandate to develop and implement educational programmes to foster public awareness of the requirements of the Act, on the part of lobbyists, their clients and public office holders (POHs).

The Commissioner has developed outreach tools to better understand the rationale and requirements of the Act, including:

• Speeches and Presentations
• Advice and Interpretation on the Lobbying Act
• Guidance on the Lobbyists’ Code of Conduct

3. Ensure Compliance

The Commissioner is working to ensure lobbyists are compliant with the Act and the Lobbyists’ Code of Conduct. Administrative reviews and investigations are undertaken to examine alleged breaches of the Act or the Code. When the Commissioner concludes an investigation, she must table a Report on Investigation in both Houses of Parliament with her findings, conclusions and reasons for these.

The Commissioner also reviews requests for exemptions from the five-year prohibition on lobbying from former designated public office holders. The Commissioner may grant an exemption only if doing so as will not be contrary to the purposes of the Act. The Office has developed service standards for the exemption review process.

Governance Structure

The Commissioner of Lobbying is an independent Agent of Parliament, appointed by Parliament under the Lobbying Act for a term of seven years. The Commissioner reports annually to both Houses of Parliament. Reports on Investigation conducted in relation to the Lobbyists’ Code of Conduct are tabled in Parliament when completed.

An Audit and Evaluation Committee provides objective advice and recommendations to the Commissioner. The committee is comprised of three external members and the Commissioner.

The Office, when fully staffed, has 28 full-time employees and an overall budget of about $4 million. It is divided into four groups.

• The Office of the Commissioner includes the Commissioner, Legal Counsel, a Senior Advisor and an Executive Assistant. The Commissioner has the rank and powers of a Deputy Head of a federal department.
• The Office of the Deputy Commissioner and Chief Financial Officer is responsible for all corporate services, including: integrated strategic and operational planning; financial and human resource management; information technology; strategic policy; internal and external communications advice; audit and evaluation, security; facilities management; and workplace safety. The Deputy Commissioner and Chief Financial Officer is also responsible for the coordination and delivery of all outreach activities.
• The Registration and Client Services Directorate is responsible for developing and maintaining the Lobbyists Registration System (LRS). The LRS allows lobbyists to register their lobbying activities and perform transactions, such as amendments, renewals and terminations. This group provides assistance to registrants, public office holders and the general public in using the LRS and in searching the Registry.
• The Investigations Directorate is responsible for supporting the Commissioner in her mandate to ensure compliance with the Lobbying Act and the Lobbyists’ Code of Conduct. The directorate monitors lobbying activities, verifies the accuracy of monthly communication reports submitted by lobbyists, and reviews and investigates allegations of non-compliance. It also reviews applications for exemptions to the five-year prohibition on lobbying for former designated public office holders.