The Federal Lobbying Act contains a statutory category of “designated public office holder” to refer to officials responsible for high-level decision-making in government. Communications between designated public office holders and lobbyists are currently subject to reporting requirements. Lobbyists are obligated to provide information to the Commissioner of Lobbying about the communications they have with designated public office holders. Further, the Commissioner may request that designated public office holders confirm information that has been provided by a lobbyist.
On September 20, 2010, new amendments under the Lobbying Act, Regulations Amending the Designated Public Office Holder Regulations , came into force that now apply to all Members of Parliament (MPs), Senators and senior staff in the offices of the Leader of the Opposition, both in the House of Commons and the Senate. Under the amended regulations, these parliamentarians and senior staff personnel are now included on the list of designated public office holders and are subject to the prohibitions on lobbying and requirements for reporting by lobbyists.
Before the new amendments came into force, lobbyists were required to disclose their lobbying activities to the Office of the Commissioner of Lobbying only when they communicated with government Ministers and Ministers of State, as well as senior bureaucrats such as Deputy Ministers and Assistant Deputy Ministers and other prescribed “designated public office holders”. The definition of “designated public office holder” in subsection 2(1) of the Lobbying Act sets out which public office holders are considered designated public office holders for the purposes of the Lobbying Act. This category includes Ministers of the Crown, Ministers of State, any person employed in their offices who is appointed under section 128(1) of the Public Service Employment Act, Deputy Ministers, Assistant Deputy Ministers, as well any individual who occupies a position that has been designated by regulation (i.e. Chief and Vice Chief of the Defence Staff; Comptroller General of Canada; etc).
Ultimately, the objectives of the Regulations Amending the Designated Public Office Holder Regulations are to ensure that the transparency and accountability goals of the designated public office holder category apply to MPs, Senators and exempt staff working in the office of the Leader of the Opposition in the House and in the Senate. MPs and Senators were included because they can have a significant impact on the development of public policy and the direction of the government. While not part of the Executive Branch of Government, they potentially have access to government information and their public offices provide an opportunity to develop networks of political and government connections, and thus influence policy.
Impact of the Amended Regulation
Lobbyists will now have to report their contacts with MPs and Senators to the Commissioner of Lobbying and MPs and Senators will have to respond to enquiries from the Commissioner of Lobbying seeking to confirm details of the reports. The inclusion of MPs and Senators will also require that they respect the five year prohibition on paid lobbying, by preventing them from potentially using the information to which they would have had access, and their network of government and political contacts, for private gain through lobbying after leaving public office. The same will apply to “exempt staff” working in the offices of the Leader of the Opposition in the House and in the Senate.
The regulations now subject this additional limited group of persons of 308 MPs and 105 Senators to the requirements of the designated public office holder category in the Lobbying Act . Appropriately, there is no provision in the regulations for any retroactive application. It appears that the Federal Government’s additional intention in expanding the list of designated public office holders is to further the goals of the Lobbying Act in terms of providing Canadians with information about lobbying activities involving MPs and Senators and ensuring that such persons do not gain possible advantages derived from their positions as public office holders for the purpose of conducting lobbying activities for five years after they leave office.
The five year prohibition and reporting requirements may also have a negative effect. (Under the Lobbying Act , designated public office holders are now prohibited from registering and lobbying the Government of Canada for five years after leaving office.) This prohibition could have a significant impact on the rights and freedoms of current and future MPs, Members of the Senate and senior staff of the Leader of the Opposition. The new amendments may be subject to Parliamentary Privilege and or Charter scrutiny because they restrict the rights and freedoms of MPs, Members of the Senate and staff of the Leader of the Opposition because they will now be prohibited from participating in any lobbying activity for five years after leaving office. This may interfere with the rights and privileges of these individuals to pursue particular activities even though they were not working within the Executive Branch of Government and thus privy to confidential or secret information; generally only available to the Executive Branch. The changes may also have other lasting effects such as bringing about a reduction in the talent pool to serve Canadians and may influence the privileges and unities of Parliament and prerogatives of the Senate.
The impact of the new amendments is still unclear, but there are noticeable issues with respect to including MPs, Members of the Senate and staff of the Leader of the Opposition as designated public office holders. The impact of the new regulations will need to be further examined in order to fully identify the positive and negative effects it may have on these designated public office holders and what, if any, are the positive effects of the change. It appears unusual on the face of this amendment and the change that it brings that no opportunity was made for a debate in or approval by Parliament on this significant change (normally, Parliament not the Cabinet controls issues of Parliamentary privilege, rights and immunities). One would have anticipated that MPs and Senators, those on the front line of Parliament working with stakeholders and constituencies of all kinds, would not be subject to rules which to many may be regarded as overly restricted and may result in less dialogue with MPs and Senators. It is too soon to predict whether this will create a chill and further dissuade people from seeking roles in Parliament.