On December 1, 2015, the Lobbyists’ Code of Conduct (2015) (Code) came into force, replacing the Lobbyists’ Code of Conduct (1997) (1997 Code). The new Code imposes additional restrictions on lobbyists, including restricting lobbying of close friends and others with a sense of obligation to the lobbyist.
The process of updating the Code began in May 2014, when the commissioner of lobbying (Commissioner) announced a full review of the 1997 Code. Consultations provided an opportunity for written submissions and roundtable discussions from a variety of stakeholders, and resulted in a scale back of the draft language of the preferential access section and the release of guidance on the application of these rules.
The rules on confidentiality were changed from the 1997 Code, in order to require a lobbyist to only use and disclose information provided by a public office holder in the manner consistent with the purpose it was shared. A lobbyist is not to use or disclose a government document he or she should not have received.
CONFLICTS OF INTEREST
In the 1997 Code, a lobbyist could not represent conflicting or competing interests without informed consent. The new Code, however, says a lobbyist is not to propose or take any action that would place a public office holder in a real or apparent conflict of interest.
The new Code also outlines the conflict of interest rules regarding preferential access. Generally, a conflict of interest will arise when there is tension between a public office holder’s duty to serve the public interest and his or her private interest or sense of obligation created by the lobbyist. Under the preferential access rules specifically, a lobbyist is not to arrange a meeting with, or to lobby a public office holder with whom he or she shares a relationship that could reasonably be seen to create a sense of obligation, thereby creating a conflict of interest.
The Commissioner has released “Guidance for lobbyists regarding the application of Rules 7 and 8 of theLobbyists’ Code of Conduct – Preferential Access” (Guidance), which outlines the type of relationships that may “create a sense of obligation”. The Guidance does not remove the responsibility from the lobbyist to determine whether there is a “sense of obligation” or whether a reasonable person would think he or she is getting preferential access.
In order to adhere to the Code, a lobbyist should not lobby or arrange a meeting with a public office holder who is family, a business colleague or a friend. A familial relationship, in this context, is the lobbyist’s immediate family by blood or by marriage. A business relationship, in this context, is a business partner of the lobbyist. A friendship is based on the interpretation of friends under the Conflict of Interest Act, articulated in the 2009 Watson Report: ‘friends’ is a relationship between the lobbyist and the public office holder that is a close bond of friendship, a feeling of affection or a special kinship that extends beyond simple kinship. A friend relationship will not extend to members of the lobbyist’s broad social or business circle, where there is little emotional attachment.
The new Code provides specific guidance for a lobbyist who engages in political activities, on behalf of a person, that could reasonably be seen to create a sense of obligation. If a lobbyist engages in this type of activity he or she cannot lobby that person or their staff for a specified period of time, if that person is, or becomes a public office holder.
A lobbyist still cannot provide a gift, favour or other benefit to a public office holder who they are lobbying or will lobby, as it will create a sense of obligation. A gift is defined by the Commissioner as anything of value, given for free or at a reduced rate, when there is no obligation to repay.
CONSEQUENCES OF BREACH
The Code is a non-statutory instrument; therefore there are no fines or terms of imprisonment for breaching the Code. An alleged breach of the Code will be investigated by the Commissioner. At the end of the investigation the Commissioner will present a report to the houses of Parliament with the findings and conclusions. Typically, the reputational damage associated with a report is the most significant impact of a breach.