New code of conduct for lobbying federal officials

The new edition of the Lobbyists’ Code of Conduct (the Code) will take effect July 1, 2023. This latest edition was facilitated by the Commissioner of Lobbying of Canada, Nancy Bélanger.

A non-statutory tool¹, the Code complements the Lobbying Act’s registration requirements by setting out the standards with which registered lobbyists² must comply. Among other changes, the third edition of the Code: (i) codifies its objectives and defines key terms; (ii) clarifies the application of the Code; and (iii) strengthens rules governing disclosure, gifts and hospitality.

What you need to know

• This edition of the Code defines key terms such as “gift”, “hospitality”, “lobbying”, and “official” and sets expectations with respect to disclosures, cooling-off periods, gifts and hospitality.
• Lobbyists will be prohibited from lobbying government officials with whom they have a relationship that is sufficiently close that it may create a “sense of obligation”.
• Lobbyists who engage in political work will be subject to a cooling-off period (12 or 24 months depending on the type of work) unless a reduction is granted by the Commissioner.
• The Code introduces a low-value limit of $40 per gift and/or per instance of hospitality with an annual limit of $200.

Background

The Lobbying Act (the Act) and the Code work jointly to foster transparent and ethical lobbying of federal officials. The Act establishes the Office of the Commissioner of Lobbying and a corresponding investigations regime, as well as a system for the registration of lobbyists. The Code complements the Act by adding an additional layer of obligations for lobbyists, including specific compliance and disclosure requirements.

Conflict of interest

The most significant change is the reformulation of the conflict-of-interest rules. The previous editions of the Code focused on whether lobbyists’ actions could place a government official in an apparent or real conflict of interest. The third edition expands on this by prohibiting situations where officials could be seen to have a sense of obligation towards a lobbyist. In particular, the third edition includes requirements to not lobby an official where:

• the official could reasonably be seen to have a sense of obligation towards the lobbyist because of a close relationship with the official;
• the official could reasonably be seen to have a sense of obligation towards the lobbyist because of political work that the lobbyist is doing or has done for the benefit of the official before the end of the cooling-off period; or
• the official could reasonably be seen to have a sense of obligation towards the lobbyist in circumstances beyond the scope of other rules in the Code.

The Code also includes examples of “close relationship”, such as close family relationships, close personal relationships, close working relationships and close business relationships.

The new edition of the Code also changed the rules regarding the cooling-off periods that apply to election campaign workers. Previously, lobbyists who had worked on an elected official’s campaign could not lobby that person for a full election cycle. This edition relaxes the rules and reduces the cooling-off period to either 12 or 24 months, depending on how involved the lobbyist was in the campaign. Strategic or organizing roles, such as campaign managers, executives of an electoral district association, people directing or coordinating political research or data analysis, are all subject to 24 months. People with other roles, such as canvassing, fundraising, coordinating campaign logistics, are subject to 12 months. The Commissioner may reduce the cooling-off period in certain circumstances.

Disclosure obligations

In addition to the existing obligation under the Act to disclose when lobbying on behalf of clients, the Code imposes new disclosure obligations:

• Consultant lobbyists will be required to inform their clients when lobbying on their behalf and that they may also have obligations under the Act, the regulations and the Code.
• Employees with registration obligations under the Act must inform employees who lobby for the employer of their obligations under the Code.

Gifts and hospitality

The new edition of the Code sets out certain conditions under which lobbyists may offer gifts and hospitality, including low-value gifts that are a token of appreciation or promotional items and low-value hospitality for consumption during an in-person gathering. While the previous Code did not impose any definition of “low-value”, the new Code introduces a low-value limit of $40 and an annual combined limit for gifts and hospitality of $200. These amounts will be adjusted annually for inflation.

The Commissioner has discretion to grant an exemption to this request. In doing so, they may consider certain factors, such as the combined value of gifts and hospitality already provided and/or planned to be provided to the official within the same calendar year.

Enforcement

The third edition codifies three principles to guide compliance with the Code:

1. Transparency, including a commitment to openness;
2. Respect for government institutions, including the duty of officials to serve the public interest over private interests; and
3. Integrity, honesty and professionalism, including upholding the letter and spirit of the Act and its regulations, as well as the Code.

As in the past, this Code remains a non-statutory tool. That means that there are no penal consequences or fines, breaches of the Code may result in an investigation by the Commissioner and a public report to Parliament that could result in significant reputational risk for lobbyists and their clients.