Nov 22, 2013 – by Guy W. Giorno
The Saskatchewan Government has tabled legislation that, if passed, would give the Province one of the most strongly enforced lobbying laws in the country, and lobbying conflict-of-interest rules among the toughest in Canada. The law would not, however, affect interest groups, many non-profit organizations and some businesses.
Bill 120, The Lobbyists Act, will be of interest to any business that has dealings with Saskatchewan legislators or government officials, as well as to consultants and their clients. The proposed law was introduced November 21 by Gordon Wyant, the Province’s Minister of Justice and Attorney General.
Until now, Saskatchewan has been the largest Canadian province that lacks a lobbying transparency law, an omission that was often the subject of criticism.
Scope of the Bill
The proposed law defines lobbying in a manner consistent with the definition in other provincial statutes. Lobbying would be communication with a public office holder in an attempt to influence: the development of legislation, regulations and orders in council; any legislative business; government policies, programs, directives and guidelines; government grants, contracts and financial benefits; and privatization, out-sourcing and contracting out. Lobbying would also include the arrangement of meetings with public office holders.[1]
Grass-roots communication would constitute an exception to the principle that lobbying involves communication to a public office holder. Grass-roots communication involves communication to members of the public in an attempt to put pressure on public office holders. It is best thought of as a form of lobbying in which the lobbyist communicates indirectly with a public office holder, by enlisting the public’s help. Bill 120 would require reporting of grass-roots communication by lobbyists. (This is typical of other lobbying statutes. Everywhere except British Columbia, Manitoba and Quebec, lobbyists must report on their grass-roots communication.)
As in almost every other Canadian jurisdiction, only those paid to communicate with public office holders would be lobbyists.[2] As is common across Canada, public office holders would include everyone who holds an elected, employed or appointed position in the provincial government or a government institution, and anyone appointed to an office by the Cabinet or a Minister.
Despite warnings that these provisions would probably exclude most lobbying in Saskatchewan,[3] Bill 120 would exclude lobbying by employees, officers and directors of:
- Interest groups, lobby organizations and other non-profit entities, except those that represent businesses or management, union or professional interests.
- Businesses whose employees, officers and directors collectively lobby Saskatchewan public office holders less than 100 hours in a year.
While these exclusions would create large gaps in the legislation, they are not unprecedented. Three other provinces also exempt not-for-profit entities from lobbyist registration. (On the other hand, federal, British Columbia, Newfoundland and Labrador, Nova Scotia and Ontario laws all require that lobbying by non-profit organizations be transparent.)
Further, the 100-hour threshold is common to the other Western provinces, and in all the other provincial jurisdictions (and federal jurisdiction) in-house lobbying is not registered unless it exceeds a minimum volume. At the same time, while minimum volume thresholds are common, they have also been subject to expert criticism. The lobbying commissioners and registrars of the four largest jurisdictions in Canada (federal, Ontario, Quebec, B.C.), based on their deep experience, have individually recommended eliminating the registration thresholds and moving to a system where all in-house lobbying is registered. (The regulators’ recommendations are analyzed here.) The Saskatchewan Government has either ignored this expert advice, or determined that it does not apply to Saskatchewan.
Everywhere in Canada, minimum thresholds do not apply to consultant lobbying; in other words, consultant lobbying must always be registered, regardless of amount. Bill 120 would treat consultant lobbying in this manner.
Consistent with the approach of most Canadian jurisdictions, the Saskatchewan law would impose the registration filing requirements on:
- Each individual consultant lobbyist, in the case of consultant lobbying.[4]
- The CEO (senior officer) of a business, filing one registration covering everyone in the organization, in the case of in-house lobbying.[5]
A consultant lobbyist would be required to file his or her first registration within 10 days of entering into the undertaking to lobby,[6] and thereafter to renew semi-annually. The CEO (senior officer) would be required to file the first registration for the business within 60 days, and thereafter to renew semi-annually. These deadlines are consistent with those in other jurisdictions.
Conflict of Interest Rules
Bill 120 contains two strong conflict-of-interest provisions.
First, the law proposes that large numbers of public officials be temporarily prohibited from lobbying after leaving office. The length and scope of the prohibitions would depend on the offices held:
- Former Ministers would be banned for all lobbying for one year.
- Former MLAs, former Premier’s Office employees, and former deputy ministers, former associate deputy ministers and former assistant deputy ministers in the Office of the Executive Council, would be banned from all lobbying for six months.
- For six months, former deputy ministers, former associate deputy ministers, and former assistant deputy ministers would be banned from lobbying the ministries where they served.
- For six months, former ministerial aides would be banned from lobbying the ministries or government institutions for which their ministers were responsible.
- For six months, former holders of prescribed positions[7] in government institutions would be banned from lobbying the government institutions where they served.
If adopted, these proposed post-service lobbying restrictions would be the broadest, strongest provincial restrictions in Canada. (However, Bill 115, now before the Ontario Legislature, would impose much longer prohibitions (five years) on similar classes of officials.)
(Currently, former Ministers are subject to a much narrower restriction under the Members’ Conflict of Interest Act.[8] For 12 months after ceasing to hold office, a former Cabinet minister may not make representations to a government decision-maker, whether on his or her own behalf or that of another person, concerning a contract or benefit. He or she is also prohibited from contracting or accepting a benefit to make representations to a government decision-maker concerning a contract or benefit.)
Second, the new law proposes to restrict persons from simultaneously lobbying on a subject-matter and holding (or entering into) a contract to provide advice to the Saskatchewan Government of a government institution on the same subject-matter. Similar provisions appear in the lobbying legislation of Alberta, British Columbia, Manitoba and Quebec.
This contracting prohibition would apply even if the amount of lobbying involved (either individually or cumulatively across an organization) were less than the 100-hour threshold. Further, it would apply even if the ministry or institution receiving the advice were different than the ministry or institution being lobbied.
However, the contracting ban would not apply if the lobbying and the contracted advice related to different topics.
One significant omission from Bill 120 is a code of conduct for lobbyists. The federal, Quebec and Newfoundland and Labrador laws itemize specific ethical rules that lobbyists must follow. The Saskatchewan Government has declined to do likewise at this time, but will continue to review the possibility.
Other Transparency Features
The bill proposes that the Government and government institutions would be required to publish information about any payments that they make to lobbyists.
As in British Columbia, while each consultant lobbyist would be required to register individually, he or she would also have to identify anyone else whom the consultant has engaged to lobby on the file. In B.C., this feature permits people consulting the lobbyist registry more easy to identify the names of multiple consultant lobbyists working on a file, while maintaining the requirement of individual registration by each consultant.
In reports filed with the Legislative Assembly,[9] the Registrar would be expressly permitted to publish details of any payment received, disbursement made or expense incurred by a lobbyist, if the Registrar considered publication to be in the public interest.
Enforcement
Bill 120 contains several strong, overlapping enforcement mechanisms. (It does, however, contain certain gaps that will be discussed below.)
The primary enforcement mechanism is prosecution. Offences would include: failure to comply with any provision of the Act or the regulations; failure to comply with an order of the Registrar (Conflict of Interest Commissioner);[10] lobbying without having filed a return; making a false statement or providing false information to the Registrar; and an omission of fact that makes a statement to the Registrar misleading.
On conviction, the maximum fine would be $25,000 for a first offence and $100,000 for each subsequent offence.
Following conviction, the Registrar would be able to prohibit an individual from lobbying, from being registered to lobby, and from filing a lobbying registration, for up to two years.
Further, the Registrar would be required to publicize each conviction, including the name of the person convicted, the offence and the penalty.
One gap in the offence-prosecution regime is that, apparently, an in-house lobbyist could not be charged if he or she lobbied without having been registered by the CEO (senior officer). The CEO could be charged for failure to file a registration (or failure to name the in-house lobbyist on a registration that has been filed), but there appears to be no provision for the in-house lobbyist to be charged.[11]
Bill 120 would also permit the Registrar to impose administrative penalties of up to $25,000, for certain contraventions. (An administrative penalty is a fine imposed following a fair process in which the person receives notice of the allegation and has an opportunity to respond, but which does not involve the process of charge, prosecution, trial and conviction.)
Most contraventions of the Act would not, however, be subject to the proposed administrative penalties. For example, failure to file a registration, lobbying by a former public official contrary to the post-service ban, and lobbying while holding a contract to provide advice, would not be subject to administrative penalty. These rules could only be enforced by the laying of charges, trial and conviction.
Next Steps
Businesses and others who deal with Saskatchewan legislative and government officials should continue to monitor developments carefully, as Bill 120 could significantly affect their interests.
More information: Guy Giorno, 1-877-609-5685 or 1-613-696-6871, ggiorno@fasken.com
[1] Bill 120 would adopt the approach of Lobbyists Registration Act (British Columbia) to arranging meetings. The arrangement, by a consultant lobbyist, of any meeting between a public office holder and another individual would constitute lobbying. In the case of an in-house lobbyist, arranging a meeting between a public office holder and another individual would constitute lobbying only if the purpose of the meeting is to attempt to influence a decision listed in the definition of lobbying.
[2] The legislation expressly states that unpaid volunteers are not subject to the Act, but this statement is redundant and unnecessary. Unpaid volunteers do not fall within the definitions of “consultant lobbyist” and “in-house lobbyist,” as both definitions refer to payment.
[3] Letter from Guy W. Giorno to Hon. Gordon S. Wyant (April 30, 2013), at pp. 3-7: online: http://t.co/eUYRVZJaGC
[4] Only Alberta does not require separate individual filings by consultant lobbyists.
[5] Only Nova Scotia and Ontario place the registration obligation on the individual in-house lobbyists for a business.
[6] Note that the triggering event for consultant lobbyist registration is not the commencement of lobbying, but entering into the undertaking to lobby (in other words, the point when the consultant agrees, contracts or promises to lobby for the client). Under federal law, an individual was recently convicted for failure to register within 10 days after he undertook to lobby (entered into a contract to lobby), even though he never commenced actual lobbying: R. v. Skaling (2013).
[7] In other words, positions specified by the Cabinet.
[8] S.S. 1998, c. M-11.11, subs. 34(1).
[9] Following investigation into possible non-compliance with the Act, the Registrar would be required to table a report in the Legislative Assembly.
[10] Bill 120 would make the Conflict of Interest Commissioner the Registrar under The Lobbyists Act.
[11] The offence under clause 25(1)(a) would be to “lobby without having filed a return as required by this Act.” However, an in-house lobbyist is not required to file the return: the CEO (senior officer) is required to do so. This would seem to make it impossible for an in-house lobbyist (other than the senior officer, or unless there is no senior officer, in which case the in-house lobbyist would bear the obligation to file) to be charged with lobbying without having filed a return.
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