Lobbyists and employers of lobbyists will be affected by new standards of hospitality, permissible political activity, and preferential treatment.
Greater flexibility in hosting receptions, a prohibition of lobbying extended family members, and new restrictions on lobbyists who engage in political activity are among the features of new guidance to lobbyists issued on April 2, 2019. Canada's Commissioner of Lobbying, Nancy Bélanger, has updated the basis on which she will interpret and apply the federal Lobbyists' Code of Conduct. The new guidance replaces the previous guidance issued in December 2015.
The new guidance relates to the rules on lobbyists' relationships with public office holders (also called "preferential access") (Rules 7 and 8), political activity (Rule 9) and gifts and hospitality (Rule 10).
A summary of the most important developments is as follows:
Gifts and Hospitality
- The guidance confirms the long-standing Fasken advice that it is appropriate to provide a meal to a public office holder who is a speaker or moderator at an event.
- It also confirms the Fasken advice that it is appropriate to provide a meal or refreshments, of minimal value, during a working meeting (e.g., salad or sandwiches).
- Gone is the mention of receptions to which all MPs or Senators are invited and where no lobbying takes place. In its place is guidance that says receptions are to be judged on a case-by-case basis taking into account whether the value of the hospitality is "reasonable" and whether a public office holder would feel a sense of obligation to the host. In theory, lobbying could take place at the reception, and not everyone needs to be invited, though these are factors relevant to whether a sense of obligation is created.
- Promotional gifts of minimal value are permitted.
Political Activities by Lobbyists
- The cooling-off period (no lobbying) under Rule 9 is reduced from five years to "a full election cycle" (usually four years).
- The guidance divides political activities at risk of creating a sense of obligation in public office holders into "higher risk" and "lower risk" categories. Higher-risk political activity triggers the no-lobbying period. A lower-risk activity would not prohibit one from lobbying, unless it is frequent or is combined with multiple activities.
- The following activities, previously classified as at risk, are no longer listed: serving on the executive or board of directors of an electoral district association except as an officer; serving in a paid position on a campaign staff, except holding a strategic position or working in a so-called "war room"; and writing speeches
- Scrutineering for a candidate has been reclassified from "no risk" to "low risk".
Lobbying of public office holders with whom one has a friendship, family or business relationship
- The prohibition of lobbying a family member has been expanded beyond immediate family. It now lists parents, siblings, children, children of spouse or partner, grandparents, grandchildren, first cousins, aunts, uncles, nieces, and nephews who may be public office holders
- The prohibition of lobbying a business partner has been clarified to mention a public office holder with whom the lobbyist shares an ownership, fiduciary or monetary interest in a business.
- There is no substantive change to the prohibition of lobbying a friend.
Lobbying of provincial and municipal officials
These changes apply to federal lobbyists, but many provinces and municipalities also impose rules – in particular, restrictions on gifts and hospitality, and prohibitions of placing a public office holder in a conflict of interest.
Companies and organizations that attempt to influence provincial and municipal governments should obtain advice on the lobbying rules in those jurisdictions. It is not safe to assume that the guidance offered by the federal Commissioner will apply to other levels of government.
Businesses and others dealing with government should review their internal policies and procedures to ensure compliance with the new interpretation of the standards of conduct for federal lobbyists – as well as the standards in other jurisdictions.
Please contact the author (Guy Giorno), or any member of Fasken's political law team, for more information on the subject of this bulletin.