In a world of rapid change and “blurred lines” around acceptable behaviours, Codes of Conduct benefit entire industries by setting out ethical principles and standards that guide behaviour. Codes inspire confidence among clients and other stakeholders about the businesses and professionals they are dealing with, help to weed out or isolate “bad apples” or shady operators, and often help prevent the need for new legislation and/or regulation.
To that end, on December 1st, 2015 Canada’s new Lobbyists’ Code of Conduct (the Code) came into force. Penned by Canada’s Lobbying Commissioner, Karen Shepherd, the new Code replaces the original of 1997. What sets this Code apart from others, however, is that the Lobbying Act (the Act) empowers the Lobbying Commissioner not only to develop the Code, but to enforce it as well. As such, the Lobbying Commissioner can investigate an alleged contravention of the Code and submit a public report to Parliament on those findings.
It should be obvious that landing on the wrong side of this law can be a career-ending mistake, not to mention the potential brand damage for any organizations involved. Added to these stakes are some highly controversial provisions in the new Code dealing with “conflict of interest” and lobbyists’ “political activities”.
While I won’t get into all the details of either the Code or the Act, lobbyists should ensure that they are familiar with the four key principles and ten rules of the Code. At just six pages the Code is a quick read. The new rules, listed under the heading “Conflict of Interest” are largely consistent with the principles of the Code itself, but some elements have generated controversy. Here’s why:
The Conflict of Interest section now has a prohibition against creating an “apparent conflict of interest” and it now warns against lobbying where the “public office holder and the lobbyist share a relationship that could reasonably be seen to create a sense of obligation”. The decision not to qualify the term “relationship” in terms of family ties or business interests for example, leaves the door wide open to arguments that almost any relationship might influence a public office holder. However the new Code specifically targets lobbyists’ political activities in support of public office holders. So take note: do not lobby an office holder while (or after), for example, sitting on a riding association executive in the constituency that elects that public office holder. On the other hand it may be okay to coach hockey with an office holder you are lobbying or patronize a local business owned by the spouse or family of that office holder.
The reality is that most lobbyists are very interested in public affairs and many are politically active during writ periods or in fundraising and other political activities between elections. So what do rules 7, 8, and 9 mean for lobbyists who have recently worked to elect an M.P. or perhaps even a Minister? Recent discussions with Commissioner Shepherd have made it clear that a lobbyist’s political work in any senior capacity for a public office holder will trigger these rules – and thus result in a five-year restriction on that lobbyist’s dealings with that office holder and their staff.
To this point the Commissioner has stated that key campaign roles will be affected whereas minor campaign involvement will not be covered. Her office has also released a guidance document regarding political activities, identifying roles like scrutineering for a candidate as an activity that poses no risk of creating a “sense of obligation”; while roles like constituency association executive member, campaign manager, or strategic advisor carry that risk and would therefore trigger the lobbying prohibition. Unfortunately the tipping point between affected and unaffected types of political activity is not entirely clear, and at this stage the plan is that the full five-year restriction will either apply or it won’t. And it isn’t yet clear whether there is a distinction between paid or volunteer political activities, although presumably payment for services rendered should eliminate any “sense of obligation”. If you are unsure about how the rules apply to a specific political activity it should be noted that the Commissioner has invited lobbyists to consult with her office about these provisions so as to avoid the risk of a conflict of interest.
Time and trial will tell us whether these new rules will stand up to scrutiny in terms of their reasonableness and ability to withstand legal challenge. Key questions for legislators to consider:
- Are the provisions within the scope of Section 10.2(1) of the Lobbying Act?
- Are these reasonable and necessary restrictions upon the constitutional rights of lobbyists?
- Should volunteering on a campaign for public office result in a registered lobbyist being disqualified from making representations to that public office holder about any and all matters of government policy?
- Is this really a reasonable restriction on the work of lobbyists when any number of union leaders, business owners, corporate orNFP executives, who are often not required to register as lobbyists under the Act, can volunteer on a campaign and later make representations to that public office holder on policy matters to advance the interests of their organizations?
- Are such routine representations to public office holders somehow more acceptable than similar activities of a registered lobbyist who is required to report all meetings and adhere to a Code of Conduct? If not, is there a case for increasing the transparency and tracking of all interactions with government? I certainly don’t think so, but perhaps these considerations will prompt thoughtful legislators to take a careful second look at the road we’re going down.
On the other hand, lobbyists clearly do benefit from sound guidance about the standards of ethical conduct. And there’s no question that a Lobbyist Code of Conduct is a very good thing. But it remains to be seen how some aspects of the new Code square with the statutory principles that lobbying is a legitimate activity and that access to government for legitimate lobbyists should not be impeded.
Regardless of bricks or bouquets, the new Code is now in effect and smart lobbyists will carefully judge where they ought to be restricting their lobbying activities. It’s likely that many will also be re-assessing their current and future political activities.
Wally Hill is Vice President Government and Consumer Affairs with the Canadian Marketing Association.
*CMA publishes its own Code of Ethics to guide marketing practices and to identify member organizations as responsible and ethical actors in the marketplace.