Treasury Board President Stockwell Day says new lobbying restrictions are a step toward greater accountability.
Last August, the president of the Treasury Board, Stockwell Day, announced that the government of Canada was going to further increase transparency in Ottawa by extending the provisions of the Lobbying Act that restrict lobbying activities to all members of Parliament, senators and senior staff in the offices of the Leader of the Opposition.
The changes were initially assessed in the context of how they would increase the administrative burden on lobbyists, but their true impact wasn't fully appreciated until the May 2 federal election. Former MPs and some parliamentary staff may now find it difficult to secure work after they leave the Hill.
Subject to a handful of ongoing recounts, more than 100 MPs were either defeated or chose not to seek re-election. Besides cleaning up their offices and saying goodbye to their caucus colleagues, they will now also be told what they can and cannot do in their post-parliamentary careers.
Each former MP will likely receive some form of letter from the Conflict of Interests and Ethics Commissioner reminding them that as an outgoing "designated public office holder" they are, amongst other restrictions, legally prohibited from lobbying federal public officials for five years. Put another way, an MP who was defeated May 2 will not be able to lobby the federal government until May, 2016.
Prior to the regulatory change announced by Mr. Day, the five-year prohibition on lobbying merely applied to former cabinet ministers and their staff, senior public servants and military officers of a specified rank. After the change, the restriction was expanded to apply to all 308 members of Parliament and all 105 senators as well as the senior staff working in the offices of the Leader of the Opposition in both the House and Senate.
To fully appreciate the scope of this prohibition, it is worth noting the broad definition of what constitutes lobbying. The Lobbying Act essentially covers any communication that an individual has with a public office holder with respect to certain types of government business when the individual in question is either being paid for that work by an outside client or if it constitutes a significant part of their duties for their employer.
The specified types of business include the development or amendment of legislation or regulations, the development or amendment of any federal government policy or program and the awarding of any contract, grant, contribution or other financial benefit by the government. For consultant lobbyists - those acting on behalf of clients rather than for employers - lobbying includes arranging meetings with public officials.
From a practical standpoint, this means that a former MP who joins a law firm or returns to some other professional practice will not be able to pick up the phone on behalf of a client to arrange a meeting or to otherwise discuss government business. Those who are hired by companies or trade associations will have to take steps to ensure that they severely limit their communications with government on behalf of their new employers.
Prospective employers and clients will need to be cognizant of the fact that former MPs and certain types of parliamentary staff being hired or retained by their organizations will be effectively precluded from undertaking certain types of work. While they can provide strategic advice, they are prohibited from acting on that advice or implementing any of the strategies they may develop.
The inability of these former public office holders to communicate with their former colleagues, or even government officials whom they have never met, could have serious implications for their future employability. It also marks a sharp departure from the past, when former members of Parliament were highly sought after once they left office. If nothing else, it is a clear reminder of how the system has changed since 2006.
To some, the five-year ban is viewed as a necessary precaution to ensure both accountability and transparency. To others, the prohibition is viewed as a draconian and unduly harsh constraint on the right to work. As this debate continues, all eyes will be on the newly elected Conservative majority government to see if it makes any additional changes to this provision when the Lobbying Act is reviewed by Parliament this fall.
Colin P. MacDonald is the chair of the government relations group at Borden Ladner Gervais LLP and Jack Hughes is a lawyer in their Ottawa office.