February 1, 2008 Lawyer’s Weekly With the Federal Accountability Act (FAA) receiving Royal Assent on Dec. 12, 2006, the cost of doing business in Ottawa will increase.
Among the changes that the FAA makes to federal statutes are several relating to the Lobbyists Registration Act (renamed the Lobbying Act). Although most of the lobbying-related amendments are not yet in force, Canadian companies, associations, partnerships and non-governmental organizations that deal with the Canadian government can expect their legislative and regulatory compliance related costs to increase.
The FAA does not make any changes to the scope of communication covered by the new Lobbying Act, as the Lobbying Act will continue to apply to communication related to government decision- making. However, a significant amendment under the FAA is the introduction of what the Act refers to as a “Designated Public Office Holder” (DPOH). DPOHs include ministers and their staff and any other public office holder who occupies the senior executive position ( eg. deputy minister or chief executive officer) or is an associate or assistant deputy minister (or comparable rank) within a prescribed federal department, division or branch of the federal public administration, or departmental corporation.
The fact that job titles are not uniform across the federal bureaucracy and the Lobbying Act provides that DPOHs can occupy positions of comparable title and rank to those specifically mentioned in the Act, means that lobbyists and those who employ them will find it increasingly challenging to figure out whether the person they are lobbying is a DPOH or someone holding a lesser rank.
The introduction of DPOHs is accompanied by new reporting requirements, which means that lobbyists and organizations that lobby will have to adjust their practices in order to comply with the law. In addition to other previous routine reporting requirements, both “consultant” and “inhouse” lobbyists will have to file a monthly return in any month in which they communicate with a DPOH, which details the name of the DPOH, the date of the communication and particulars to identify the subject matter of the communication, in addition to any other information that is prescribed by way of regulation. This raises a host of issues, including the particularly sensitive issue of solicitor-client privilege for those lawyers who act on behalf of clients as advocates with respect to issues that may touch on confidential matters that encompass this privilege.
Some corporations and other organizations that lobby government are already (or should be) considering some manner of internal tracking system with which to identify who in their organization is contacting whom in government. For those organizations that have former DPOHs as either employees or external members of their board of directors, it will be especially important to ensure that these individuals are aware of their reporting obligations under the new Lobbying Act. Within the context of ensuring full transparency, upon undertaking to lobby, lobbyists will be required to include in their return, if they were a former public office holder, a description of the offices held (as per the Lobbyist Registration Act), and which of those offices, if any, under the new Lobbying Act qualified the individual as a DPOH and the date on which the individual last ceased to hold such a designated public office. in most cases those who are currently in DPOH positions, will be restricted from lobbying for five years after holding public office.
At the same time, the investigatory powers of the commissioner of lobbying under the Lobby ing Act will include launching an investigation into any alleged breach of the Act or the Lobbyists’ Code of Conduct (previously, the registrar could only investigate breaches of the Lobbyists’ Code of Conduct). Under the Lobbying Act, the commissioner will also be able to launch investigations on his or her own accord. Penalties for contravening the Lobbying Act will be increased to $50,000 and/or up to six-months imprisonment for a summary conviction, $200,000 and/or up to two-years imprisonment on an indictment, and a possible two-year prohibition on lobbying if convicted. These financ ial penalties, which are double what they were under the Lobbyists Registration Act. demonstrates the seriousness the government has attached to this law.
As is now obvious, the FAA changes the way the bus iness of lobbying and advocacy will be done in Ottawa. It is important that all stakeholders who engage with the federal government are aware of these changes, which are both subtle and not so subtle, and continue to conduct their lobbying activities so as to meet their legal obl igations under the law. Undoubtedly, until the amendments introduced by the F..U are brought into force and the regulations under the new Lobbying Act are enacted, uncertainty will remain with respect to how this legislation will proceed. Nevertheless, two things are certain; the advice of legal counsel will be required during the early days with respect to the lobbying interaction with the federal bureaucracy and its political masters, and the cost of doing business in the accountability- sensitive political environment of Ottawa has just increased.