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Overheard in the lobby: important changes coming to lobbying in Ottawa: the new Lobbying Act does not define lobbying--neither did its predecessor--nor does it change the activities that trigger the application of the Act. It does, however, introduce several notable changes that lobbyists and their clients need to know.

"Lobbying public office holders is a legitimate activity." It says so in the preamble to the federal law governing lobbying in Canada. This affirmation of the legitimacy of lobbying has survived every amendment made to the legislation since it was first introduced in 1989. It even survived the most profound changes to Canada's lobbying laws, the Federal Accountability Act, Prime Minister Harper's flagship legislation designed to, in his words, enable Canadians to "trust their federal government." Even though the premise of legitimacy was reaffirmed, the Harper government's changes to the lobbying law--scheduled to come fully into force on July 1, 2008--sent a profound message to those who lobby the federal government.

Registration to regulation

Although it is subtle, the change in the name from the Lobbyists Registration Act to the Lobbying Act, signals an important mindset change. The law is no longer about registering lobbying activity in Ottawa. That is how the legal system now around lobbying began--the belief that a public registry identifying the lobbyists and their clients, the departments and agencies they were lobbying, and the issues they were lobbying, would satisfy the public's need to know what was happening in the lobbies in and around the Parliamentary Precinct. This underlying premise is gone. While registration is still required, the law is more squarely aimed at regulating the lobbying profession.

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Two provisions in the Lobbying Act confirm that the law is now designed to regulate the lobbying profession: the requirement for monthly reporting, and the strict liability offence for failing to file a return completely and accurately.

Monthly reporting: A new obligation

Formerly, lobbyists were required to register lobbying activities within 10 days of entering into an undertaking and to file returns every six months thereafter as a measure of ensuring publicly available information was up-to-date. The Lobbying Act introduces a much more comprehensive system of reporting. When the new law comes into effect, lobbyists will be required to file returns on a monthly basis. This new obligation will require lobbyists to carefully record information to ensure they are in compliance with the law.

All three categories of lobbyists--consultant lobbyists, corporate in-house lobbyists, and lobbyists employed by organizations--must file monthly returns regarding certain types of communication with a "designated public office holder" (DPOH), as defined in the Act. According to proposed regulations set out in the Canada Gazette Part 1, lobbyists must file information monthly about communications "if made orally and arranged in advance of the communication." This excludes written communications as well as communications initiated by public office holders related to the development of policy, programs or legislation.

It is uncertain how "orally and arranged in advance" will be interpreted by the Commissioner of Lobbying and, perhaps eventually, the courts. For example, will voice mail messages left at a time when a conference call has been pre-arranged with a DPOH be included? Must a conversation with a DPOH who is invited to speak at a planned corporate luncheon be reported? Hopefully, the Commissioner of Lobbying will issue an interpretation bulletin to provide greater clarity.

Several issues regarding monthly returns bear noting:

Monthly returns are not required if no reportable communications are made that month, although a return must be filed at least every six months, if only to state that no prescribed communications have been made since the most recent filing.

For corporate in-house lobbyists, "orally and arranged in advance" communications with a DPOH must be filed even if the company employee who engages in the communication is not required to be named in the company's initial registration (i.e., because the employee's lobbying activities constitute less than 20 per cent of his or her duties).

DPOHs are not required to file information regarding communications they have with lobbyists. However, the Commissioner of Lobbying may contact officials to verify information about communications filed by lobbyists. Accordingly, senior officials will de facto keep records of reportable communications.

The category of DPOH includes Deputy Ministers and Assistant Deputy Ministers. It does not include Director Generals (or General Directors at Finance Canada), the executive position immediately below ADM. Therefore, DGs should expect to become a main entry point for lobbyists who will not be required to register such communications.

Monthly returns will be a treasure trove for companies and organizations wanting to learn the "who, what, when, where and why" of their competitor's lobbying activities.

Investigative powers and penalties

The Lobbying Act abolishes the office of the Registrar of Lobbyists, which is housed within the Treasury Board Secretariat, and establishes a new Officer of Parliament in the Commissioner of Lobbying. As an Officer of Parliament, similar to the Auditor General of Canada, the Commissioner will have independence from the government of the day in fulfilling his or her duties.

The Commissioner will have stronger investigative powers than the Registrar, who was limited to investigating possible breaches of the Lobbyists Code of Conduct and not the entire piece of legislation. The Commissioner, on the other hand, will be empowered to enforce both the Act and the code. Moreover, the threshold test triggering an investigation has been lowered from that of "believes on reasonable grounds" to "if he or she has reason to believe." This sends an important signal to lobbyists that Parliament has given the Commissioner a strong enforcement mandate.

Another signal was delivered by changes made to the offences and penalties provisions of the law. A strict liability offence has been created for failing to file a return or for filing a return that is inaccurate or incomplete. In other words, a lobbyist could be imprisoned for such an offence even if the inaccuracy or incompleteness of a filing was not done knowingly. Moreover, the Commissioner has the discretion to ban a person from lobbying for up to two years if he or she is convicted of an offence under the Act.

Several more important changes to the federal law governing lobbying are included in the Act that are not covered here. Lobbyists and their clients are well advised to become familiar with all of the changes and to be ready to comply with a tougher legal regime when it comes into force in July 2008. Lobbying is a legitimate activity. But, ignorance of the law governing lobbying is not a defense.

Alan Young (young@tactix.ca) is co-president of TACTIX Government Consulting Inc.

TACTIX Government Consulting Inc. is not a law firm, nor does it provide legal advice or legal opinions. Readers wishing to fully understand their obligations with regard to the Lobbying Act should consult legal counsel.
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Title Annotation:government issues
Author:Young, Alan
Publication:CMA Management
Geographic Code:1CANA
Date:May 1, 2008
Words:1091
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