ARCHIVED — Regulations Amending the Designated Public Office Holder Regulations

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Vol. 144, No. 19 — September 15, 2010

Registration

SOR/2010-192 September 9, 2010

LOBBYING ACT

P.C. 2010-1100 September 9, 2010

Her Excellency the Governor General in Council, on the recommendation of the President of the Treasury Board, pursuant to paragraph 12(c.1) (see footnote a) of the Lobbying Act (see footnote b), hereby makes the annexed Regulations Amending the Designated Public Office Holder Regulations.

REGULATIONS AMENDING THE DESIGNATED PUBLIC OFFICE HOLDER REGULATIONS

AMENDMENT

1. The schedule to the Designated Public Office Holder Regulations (see footnote 1) is amended by adding the following after item 11:

Item

Positions and classes of positions

12.

The position of member of the House of Commons

13.

The position of member of the Senate

14.

Any position on the staff of the Leader of the Opposition in the House of Commons or on the staff of the Leader of the Opposition in the Senate, that is occupied by a person appointed pursuant to subsection 128(1) of the Public Service Employment Act

COMING INTO FORCE

2. These Regulations come into force on September 20, 2010.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Lobbying Act holds amongst its objectives that free and open access to government is an important matter of public interest and that it is desirable that public office holders and the public be able to know who is engaged in lobbying activities.

In support of these objectives, the Lobbying Act contains a statutory category of “designated public office holder” to refer to officials responsible for high-level decision-making in Government. With the goal of increasing transparency, interactions between designated public office holders and lobbyists are subject to reporting requirements. Lobbyists are obligated to provide information to the Commissioner of Lobbying about the communications they have with designated public office holders. Further, the Commissioner may request that designated public office holders confirm information that has been provided by a lobbyist. With the goal of increasing accountability, the Lobbying Act ensures that designated public office holders do not use advantages, including access to government information, and personal connections derived from their government positions for paid lobbying. To do so, the Lobbying Act prohibits designated public office holders from lobbying the Government for five years after leaving office.

The definition of “designated public office holder” in subsection 2(1) of the Lobbying Act sets out which public office holders are considered designated public office holders for the purposes of the Lobbying Act. Currently, this category includes ministers of the Crown, ministers of state, any person employed in their offices who is appointed under subsection 128(1) of the Public Service Employment Act (exempt staff), deputy ministers, assistant deputy ministers, as well any individual who occupies a position that has been designated by regulation. The Designated Public Office Holder Regulations set out various additional positions, such as the Comptroller General of Canada, the Chief and the Vice Chief of the Defence Staff, as designated public office holder positions.

The designated public office holder category and requirements came into effect in 2008. Since then it has become apparent that Members of Parliament (MPs) and Senators can have a significant impact on the development of public policy and the direction of the Government. They have access to government information and their public offices provide an opportunity to develop networks of political and government connections. “Exempt staff” working in the offices of the Leader of the Opposition in the House and in the Senate, by extension, can play a role similar to that of “exempt staff” working in the office of a Minister and therefore may also have access to government information and may also have established a network of government and political contacts.

The objective of the Regulations Amending theDesignated Public Office Holder Regulations (the Regulations) is to ensure that the transparency and accountability goals of the designated public office holder category apply to MPs, Senators and exempt staff working in the office of the Leader of the Opposition in the House and in the Senate.

Description and rationale

The Regulations include in the designated public office holder category Members of Parliament, Senators, and exempt staff working in the office of the Leader of the Opposition in the House and in the Senate.

Including these positions in the designated public office holder category ensures the transparency of lobbying activities undertaken with MPs and Senators. Lobbyists will have to report their contacts with MPs and Senators to the Commissioner of Lobbying and MPs and Senators will have to respond to enquiries from the Commissioner of Lobbying seeking to confirm details of the reports. Their inclusion will also ensure accountability, through the five year prohibition on paid lobbying, by preventing them from potentially using the information to which they would have had access, and their network of government and political contacts, for private gain through lobbying after leaving public office. The same will apply to “exempt staff” working in the offices of the Leader of the Opposition in the House and in the Senate.

In terms of the impact, the Regulations subject a limited group of persons (approximately 400 current public office holders as well as future occupants of these positions) to the requirements of the designated public office holder category in the Lobbying Act. No other group would be affected. There is no provision in the Regulations to enable their retrospective or retroactive application. The main benefit of the amendments is to further the goals of the Lobbying Act in terms of providing Canadians with information about lobbying activities involving MPs and Senators and ensuring that such persons do not use advantages derived from their positions as public office holders for the purpose of conducting lobbying activities for five years after they leave office.

The Regulations have no significant direct costs to Government, the lobbying industry or the public. There may be a minor opportunity cost for new designated public office holders and for people considering occupying those positions in terms of the temporary limit on lobbying as an occupational option upon leaving public office.

Consultation

There has been notification of stakeholders of the government’s intention. The President of the Treasury Board announced on May 4, 2010, and August 5, 2010, the Government’s intention to extend the provisions of the Lobbying Act to Members of Parliament, Senators, and the offices of the Leader of the Opposition.

On August 7, 2010, the proposed Regulations were published in the Canada Gazette, Part I, with a period of 30 days provided for public comment. During this period, comments were received indicating that it was unclear whether the Regulations were to be applied on a retroactive, retrospective or prospective basis. These comments have been taken into account and clarification provided in this Regulatory Impact Analysis Statement under the section entitled “Description and rationale.” In addition, questions and requests for information were received pertaining to certain aspects of the Lobbying Act itself. The originators of these questions and requests were directed to the Office of the Commissioner of Lobbying.

Implementation, enforcement and service standards

In implementing the Regulations, reliance will be placed upon information and mechanisms that are in place. New designated public office holders, for example, will have access to information regarding their responsibilities under the Lobbying Act already available through the Office of the Commissioner of Lobbying.

There are no specific compliance or enforcement aspects associated with the Regulations. Overall compliance and enforcement of the Lobbying Act is administered by the Commissioner of Lobbying.

Contact

David Dollar
Director
Strategic Initiatives
Priorities and Planning Sector
Treasury Board of Canada Secretariat
L’Esplanade Laurier, 10th Floor, East Tower
140 O’Connor Street
Ottawa, Ontario
K1A 0R5
Telephone: 613-946-9297
Fax: 613-952-1010
Email: David.Dollar@tbs-sct.gc.ca.

Footnote a
S.C. 2006, c. 9, s. 79

Footnote b
R.S., c. 44 (4th Supp.); S.C. c. 9, s. 66

Footnote 1
SOR/2008-117