1. A legislative and regulatory framework adapted to the socio-political and administrative context of Quebec
This chapter analyses the legislative and regulatory framework set up by Quebec to address the governance concerns related to lobbying practices. First, the chapter provides avenues of consideration to modernise the legal framework in terms of its objectives and terminology, in order to foster the emergence of a consensus on the legitimacy of lobbying in Quebec. The chapter also discusses how the scope of the law could be adapted at different local levels and be consistent with the wider policy and regulatory frameworks. Lastly, the chapter provides concrete recommendations to strengthen the definitions of the terms "lobbying" and "lobbyist" so that they are adapted to various local realities and to the evolving lobbying landscape.
Lobbying1 in all its forms, including advocacy and other methods of influencing public policy, is a legitimate act of political participation. It gives relevant actors and all interested stakeholders a right of access to the development and implementation of public policies. All interest groups, be they companies, non-profit organisations, think tanks or trade associations, represent legitimate interests and provide public officials with expertise, technical knowledge, useful data and much-needed insights on all matters of public interest. This information from a diversity of interests and stakeholders enables an inclusive policy-making process that leads to better and ultimately more informed policies. It is also a key incentive for public authorities to take up and address certain social or societal issues. Lastly, consulting with relevant stakeholders before any public decision is taken or a given standard is adopted allows for greater acceptance of the latter afterwards (OECD, 2021[1]).
However, experience shows that policy-making processes are not always inclusive and can lead to situations of undue influence and/or monopoly of influence. At times, influence may be concentrated in the hands of those that are financially and politically powerful, to the detriment of those who have fewer resources (monopoly of influence). This imbalance can exacerbate disadvantages of groups with fewer resources and less capacities to engage in formulating policy. Experience also shows that public policies can be unduly influenced through the provision of biased or deceitful evidence or data, or by manipulating public opinion (undue influence). Studies increasingly show that lobbying practices, when they take place outside of transparency and integrity frameworks, and when they involve only a small group of stakeholders, lead to a misallocation of public resources, lower productivity and the perpetuation of social inequalities (OECD, 2017[2])
These situations have the potential to undermine trust in public authorities and in those who influence the policy-making process, particularly businesses. Indeed, in Quebec, the extent of the corruption and undue influence schemes exposed before the Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry (the Charbonneau Commission) had already seriously undermined public confidence in government institutions (Commission d'enquête sur l'octroi et la gestion des contrats publics dans l'industrie de la construction, 2015[3]; Bégin, Brodeur and Lalonde, 2016[4]).
Today, lobbying in Quebec is still perceived negatively by the general public and remains associated with certain practices that may be considered illegitimate. The Canadian results of the Edelman Trust Barometer 2021 reveal, for example, that 50% of Canadian respondents worry that business leaders are purposely trying to mislead them and 46% believe the same about government leaders (Edelman, 2021[5]). These results also show that trust in government, businesses, non-governmental organisations (NGOs) and the media remains volatile in Canada (Figure 1.1).
Source: (Edelman, 2021[5])
For this reason, the OECD Recommendation on Principles for Transparency and Integrity in Lobbying (hereinafter referred to as "the Recommendation"), adopted on 18 February 2010 by the OECD Council, provides international guidelines for governments to address risks of undue influence as well as inequity in the power of influence (OECD, 2010[6]). The Recommendation provides directions and guidance on how to promote equal access to policy discussions for all parties concerned, and how to enhance transparency, integrity and mechanisms for effective implementation, based on 10 principles and 4 key pillars. The Recommendation also reflects the views of a wide range of OECD bodies and stakeholders, including legislators, private sector representatives, lobbying associations, civil society organisations, trade unions, think tanks and international organisations (Box 1.1).
Furthermore, the Recommendation emphasises that the Principles are valid at both national and sub-national levels. Indeed, many significant public decisions on public services, such as social services, health care and education, the welfare system, as well as land use, housing, planning and infrastructure issues and environmental protection, are made at the subnational level, particularly in federal countries where significant decision-making powers reside in state or provincial governments. A strong framework for lobbying at the sub-national level is therefore key when pursuing the objective of transparency and integrity of decision-making processes.
I. Building an effective and fair framework for openness and access
1. Countries should provide a level playing field by granting all stakeholders fair and equitable access to the development and implementation of public policies.
2. Rules and guidelines on lobbying should address the governance concerns related to lobbying practices, and respect the socio-political and administrative contexts.
3. Rules and guidelines on lobbying should be consistent with the wider policy and regulatory frameworks
4. Countries should clearly define the terms 'lobbying' and 'lobbyist' when they consider or develop rules and guidelines on lobbying.
II. Enhancing transparency
5. Countries should provide an adequate degree of transparency to ensure that public officials, citizens and businesses can obtain sufficient information on lobbying activities.
6. Countries should enable stakeholders – including civil society organisations, businesses, the media and the general public – to scrutinise lobbying activities.
III. Fostering a culture of integrity
7. Countries should foster a culture of integrity in public organisations and decision making by providing clear rules and guidelines of conduct for public officials.
8. Lobbyists should comply with standards of professionalism and transparency; they share responsibility for fostering a culture of transparency and integrity in lobbying.
IV. Mechanisms for effective implementation, compliance and review
9. Countries should involve key actors in implementing a coherent spectrum of strategies and practices to achieve compliance.
10. Countries should review the functioning of their rules and guidelines related to lobbying on a periodic basis and make necessary adjustments in light of experience.
Source: For the full text see OECD/LEGAL/0379
The Recommendation has proven valuable in its ability to inform policy debates at the national and sub-national levels in jurisdictions that are adopting or revising regulations or measures on lobbying. This is notably the case in Quebec. Indeed, the Quebec Commissioner of Lobbying2, the independent public authority responsible for ensuring compliance with the legal framework on lobbying, used the principles included in the Recommendation to assess the implementation of the 2002 Quebec Lobbying Transparency and Ethics Act (hereafter "the Act") (Légis Québec, 2002[7]). This Act recognises the legitimacy of lobbying and the right of the public to know who is trying to influence decision-makers of parliamentary, government and municipal institutions. It provides for the mandatory registration of lobbyists in a public registry, a code of conduct applicable to those who engage in lobbying activities, a Commissioner of Lobbying responsible for the monitoring and control of these activities, and a system of penal and disciplinary sanctions (Lobbyisme Québec, 2019[8]). Several legislative and regulatory texts have since specified its scope of application (Table 1.1).
In June 2019, the Commissioner of Lobbying tabled a report in the Quebec National Assembly proposing the adoption of a complete overhaul of the Lobbying Transparency and Ethics Act (Lobbyisme Québec, 2019[8]). The report benefited from extensive consultations with experts, elected representatives of parliament and municipalities, heads of departments and agencies, and representatives of businesses and organisations. Focus groups were also organised on behalf of the Commissioner to better understand the perceptions of lobbying and the expectations of citizens with regard to its regulation.
On the one hand, the report establishes a diagnosis of the Act regulating lobbying in Quebec and proposes an analysis of the various conceptual, operational and technical challenges related to the application of the Act since it came into force in 2002. The report considers that the Act has become ill adapted to the evolution of the socio-political context, presents serious problems of understanding and application, and is deficient in the achievement of its democratic objectives. In addition, there are multiple contextual, conceptual and operational problems in the interpretation and application of the Act (Box 1.2).
Contextual challenges
The context of the emergence of the Act, adopted in response to a crisis, has paradoxically generated more distrust of lobbying by citizens and a stigmatisation of lobbyists. The legitimacy of lobbying remains insufficiently understood, while elected officials and public servants also show reluctance towards the provisions of the Act. Despite the Commissioner of Lobbying’s awareness-raising work, the benefits of a lobbying regulation are not sufficiently known to foster public approval, as the Commissioner of Lobbying does not have a clear educational mission on the transparency and legitimacy of lobbying activities. The punitive and repressive dimension of the Act contributes to certain confusions between malpractice and lobbying. Finally, the regime is not adapted to the socio-political and institutional evolution of Quebec.
Conceptual challenges
The scope of the Act promotes the idea that there are "good" and "bad" lobbyists, and reinforces the divide between so-called "socially noble" objectives, which are perceived as legitimate, and the "mercantile" objectives that the Act should necessarily regulate. Indeed, some influence communications (non-monetary purposes) or lobbyist groups (non-profit organisations) do not fall within the scope of the Act, creating an inequality of treatment and a lack of transparency. The lack of clear definition of certain terms creates ambiguity, compromising the understanding and application of the Act. Finally, the Act does not clearly assign responsibilities to public institutions and officials, which has led to a detachment of some elected officials and staff of public institutions from the implementation of the Act.
Operational and technical challenges
Some concepts are confusing and criminal sanctions are inappropriate for the types of offences committed by lobbyists. Insufficient fines undermine the credibility of the Act. The information contained in lobbyists’ disclosures does not provide a true understanding of the scope or relative weight of a lobbying activity.
Source: (Lobbyisme Québec, 2019[8]).
On the other hand, the report proposes a statement of 34 principles for legislators (hereinafter "the Statement of Principles") for a complete overhaul of the current framework in order to better align it with best practices identified in the area of transparency of influence communications as well as with the main international standards on transparency of lobbying activities - including the OECD Recommendation (Annex A).
For several years, the Commissioner already expressed the wish to change the Lobbying Transparency and Ethics Act, and made proposals for legislative amendments to this effect (Lobbyisme Québec, 2008[9]; 2012[10]; 2016[11]; 2017[12]). The purpose of the 2019 report to the members of the National Assembly was to encourage a dialogue on the modernisation of the legislative and regulatory framework in order to foster the emergence of a consensus on the adoption of new legislation that would respond to the changes and challenges of lobbying in Quebec and further promote citizens' trust in public institutions.
This chapter analyses the scope of application of the Lobbying Transparency and Ethics Act. Specifically, it examines the notion of "lobbying" in Quebec's legal and regulatory framework, its scope in terms of the public decisions concerned, and the definitions of "lobbying" and "lobbyist".
The OECD Recommendation on Principles for Transparency and Integrity in Lobbying encourages jurisdictions to provide a level playing field by granting all stakeholders fair and equitable access to the development and implementation of public policies (Principle 1 of the Recommendation). There are many ways to foster participation (OECD, 2017[13]), and the legal recognition of lobbying as a means of access to public policy making for all stakeholders from the private sector and the public at large is an essential component of promoting participation. This legal recognition also ensures a level playing field for interest groups, whether business or not-for-profit entities, which aim to influence public decisions. The Recommendation also states that countries should weigh all available regulatory and policy options to select an appropriate solution that addresses key concerns such as the level of public trust (Principle 2 of the Recommendation). In this perspective, the legal framework regulating lobbying in Quebec could be modernised:
Article 1 of the Act could include a principle of fair access to public decision makers
In Quebec, the Lobbying Transparency and Ethics Act adopted in 2002 recognises in its Article 1 that lobbying is "a legitimate means of access to parliamentary, governmental and municipal institutions, and that it is in the interest of the public that it be able to know who is attempting to influence such institutions" (Légis Québec, 2002[7]). By enshrining the legitimacy of lobbying and the objective of transparency of lobbying activities, the Act has allowed Quebec to join a global trend of Canadian and international jurisdictions adopting legal frameworks for lobbying. Indeed, in 2020, 18 of the countries adhering to the OECD Recommendation had public registers containing information on lobbyists and/or lobbying activities. In these countries, the adoption of lobbying laws and regulations has been a key lever for legitimising these activities. All Canadian provinces and territories, with the exception of the Northwest Territories and Nunavut, have also adopted a specific framework recognising the legitimacy of interactions between public officials and lobbyists (OECD, 2021[1]).
To further strengthen the objectives of the Act, Quebec could include an objective of fair access to public decision-makers. Indeed, a single objective of transparency may suggest that these activities are necessarily marked by opacity and suspicion. The OECD Recommendation recalls in Principle 1 that gaining balanced perspectives on issues leads to informed policy debate and formulation of effective policies, and public officials should promote fair and equitable representation of business and societal interests. Allowing all stakeholders, from the private sector and the public at large, fair and equitable access to participate in the development of public policies is crucial to protect the integrity of decisions and to safeguard the public interest by counterbalancing vocal vested interests, and to foster citizens’ trust in public decision making (Principle 1 of the Recommendation).
A study conducted by the Research Chair on Democracy and Parliamentary Institutions at Université Laval among three groups of stakeholders concerned with the regulation of lobbying (lobbyists, lobbying regulators and researchers) showed that the objective of equitable access to public decision-makers is agreed upon by the respondents (Ouimet, Montigny and Jacob, 2019[14]) (Table 1.2).
Including an objective of equitable access to public decision-makers would thus reinforce the objectives pursued by the legislator, and position the Act as a fundamental document of the Quebec legislative framework for transparency and participation in public policy development. While an analysis of the entire legal framework for facilitating public participation is not the subject of this report, concrete measures for achieving this objective that could be included in the Act are proposed throughout the analysis.
The Quebec legislator could conduct a reflection on the terminology used to qualify lobbying activities
In its Statement of Principles, The Quebec Commissioner of Lobbying uses the term "interest representative" instead of "lobbyist" to better reflect the nature of the activities of all individuals covered by this expression (Table 1.3), without, however, making any recommendations to the Quebec legislator on the use of this terminology.
The Quebec Commissioner of Lobbying points out that the terms "lobbying" and "lobbyist" have little resonance in a large part of public opinion, and are sometimes spontaneously associated with hidden or even illegal activities, fuelling the perception of collusion between corporate interests and public officials. The context in which the Act was adopted, following a political scandal revealing privileged links between a public relations firm and the government in 2002, may have contributed to the feeling that only certain activities should be associated with the word "lobbying" and be subject to legislative measures aimed at preventing certain abuses. Lobbying is often discussed in the public debate to highlight the lack of transparency in the dialogue between certain large industries and public decision-makers.
As a result, the practical reality of lobbying is rarely discussed. Various surveys conducted for the Quebec Commissioner of Lobbying in 2018 revealed that a majority of citizens consider that lobbying activities carried out with public institutions are not legitimate, while one elected official or public servant out of four questioned the very legitimacy of lobbying (Lobbyisme Québec, 2019[8]). During various consultations conducted by the Quebec Commissioner of Lobbying, some parliamentary and municipal elected officials pointed out that the terminology of the Act also contributed to its misunderstanding and to the public's mistrust.
This negative connotation is also found in other OECD countries, where the term is still misunderstood and even used to call for the exclusion of certain interests from any public policy discussion, which may be against the basic principles of democratic participation. Moreover, these negative perceptions of lobbying have led to the emergence in the public debate of other terms that are perceived more positively, such as advocacy.
In Quebec, the OECD's interviews with non-profit organisations (NPO) not subject to the Act confirmed that these organisations refuse to see their activities associated with the term "lobbying", and consider that this term only covers activities with profit-making objectives. The use of these conceptual demarcations - "business-lobbying" and "NPO-advocacy" - does, however, reflect a common purpose of these activities, namely to convince public decision-makers and influence the processes of developing and implementing public policy (Darut and Germond, 2021[15]). Some of the stakeholders interviewed also agreed that their influencing activities were akin to representation activities with public authorities.
In this context, the Quebec legislator could conduct a reflection on the terminology used to qualify lobbying activities in the legal framework. The need for this reflection is fully in line with Principle 2 of the OECD Recommendation, which emphasises that jurisdictions should weigh all available regulatory and policy options to select an appropriate solution that addresses key concerns such as accessibility and integrity, and takes into account the national context, for example the level of public trust and measures necessary to achieve compliance. (Principle 2 of the Recommendation).
Several OECD countries have chosen to integrate all these categorisations into a single term "interest representative". Germany, for example, without abandoning the terminology of "lobbying" in the wording of the law and the name of the register ("Lobbyregister"), nevertheless uses the term "interest representation" in its definitions of "lobbying" and "lobbyist" (Table 1.4).
However, these considerations will have to be carefully considered by the Quebec legislator and weighed against their expected impact on perceptions of lobbying in Quebec, and on the consistency of the legal framework with that of other Canadian jurisdictions if such a change in terminology were to be proposed by the legislator. Indeed, the laws in force at the federal level and in Canadian jurisdictions all use the terminology of "lobbying" and "lobbyist", allowing for a consistent approach to transparency across all levels of government.
At a minimum, Quebec could align the terminology of the Act with the categories identified in the laws in force at the federal level and in Canadian jurisdictions. Indeed, these jurisdictions do not distinguish in their definitions between enterprise lobbyists and organisation lobbyists into two distinct categories, but group all individuals who lobby on behalf of their employer into a single category - "in-house lobbyist" - which includes both commercial and non-profit organisations, although different obligations apply depending on the nature of these organisations.
Given the specific context of Quebec, it will be up to the legislator to judge the best way to understand the legal terminology qualifying lobbying activities, so as to change the public's perception and foster confidence in the public policy-making process.
The OECD Recommendation on Principles for Transparency and Integrity in Lobbying stresses that jurisdictions should not directly replicate rules and guidelines from one jurisdiction to another, but instead assess the potential and limitations of various policy and regulatory options and apply the lessons learned in other systems to their own context. In particular, the scale and nature of the lobbying industry within their jurisdictions is a key factor to be taken into account (Principle 2 of the Recommendation). Furthermore, rules and guidelines on lobbying should be consistent with the wider policy and regulatory frameworks (Principle 3 of the Recommendation), including regulatory frameworks already in place can support a culture of transparency and integrity in lobbying, and the scope of application should be sufficiently explicit to avoid misinterpretation and to prevent loopholes. (Principle 4 of the Recommendation). In this perspective, it is appropriate to:
Address the governance concerns raised by lobbying practices at all stages of the legislative, regulatory, policy or administrative policy cycle.
Consider a greater adaptation of the scope of application for certain individualised decisions without general or normative scope, depending on the local level or the public decision concerned.
Take into account broader policy and regulatory arrangements implemented since the adoption of the Act in 2002.
Precisely define and clarify the public decision-makers covered in order to avoid any confusion in the application of the Act.
The scope of public decisions covered could include all stages of the legislative, regulatory, policy or administrative policy cycle
In Quebec, the Act covers any oral or written communication with a public office holder in an attempt to influence or that may reasonably be considered by the initiator of the communication as capable of influencing a decision concerning:
The development, introduction, amendment or defeat of any legislative or regulatory proposal, resolution, policy, program or action plan.
The issue of any permit, licence, certificate or other authorisation.
The awarding of any contract, otherwise than by way of a call for public tenders, or of any grant or other financial benefit or the granting of any other form of benefit determined by government regulation, or
The appointment of certain public office holders (Article 3 of the Act).
In its Statement of principles, the Quebec Commissioner of Lobbying considers that lobbying activities with respect to policy should be subject to a comprehensive regime and that their disclosure is considered relevant to inform the public. The organisation proposes to define as a lobbying activity relevant to the public and to require the disclosure of any intervention, either direct or through an intermediary, with a public institution, whose goal is:
To suggest or change the development, content, drafting or implementation of any type of legislative, regulatory, strategic or administrative policy; or
To influence the appointment of any person holding a key position within the State; or
To influence the decision-making process of a public institution concerning any financial investment, contract, permit or other authorisation determined by the Act or by regulation (Principle 1 of the Statement of Principles).
With respect to the development, content, formulation or implementation of any form of legislative, regulatory, policy or administrative direction, the Quebec Commissioner of Lobbying’s proposal is in line with the OECD Recommendation, which stresses that rules and guidelines on lobbying should address the governance concerns related to lobbying practices (Principle 2 of the Recommendation), and that they should be sufficiently unambiguous so as not to be open to misinterpretation and to avoid regulatory loopholes (Principle 4 of the Recommendation). Indeed, influence may occur in the setting of a policy agenda, in the development and adoption of policies; some decisions may also be influenced in the implementation or evaluation phases (Figure 1.2 and Table 1.5).
Source: (OECD, 2017[2]).
The rules and guidelines for transparency and integrity in lobbying are not intended to cover all the risks specified above. Rather, they are part of a framework of policies and regulations that contribute to a culture of transparency and integrity in public policy-making and implementation processes. This includes stakeholder engagement through public consultation and participation, the right to petition government, freedom of information legislation, rules on political parties and election campaign financing, codes of conduct for public officials and lobbyists, mechanisms for keeping regulatory and supervisory authorities accountable and effective provisions against illicit influencing (Principle 3 of the Recommendation).
However, the Quebec Commissioner of Lobbying’s proposal could be clarified to include any intervention, directly or through an intermediary, with a public institution for the purpose of :
Suggesting the development of any form of legislative, regulatory, policy or administrative direction, and making proposals regarding its content, formulation and implementation (i.e. seek the adoption of a public decision).
Changing the development, content and wording of any form of legislative, regulatory, policy or administrative direction being planned (i.e. influence a public decision that has not yet been adopted).
Changing the content, formulation, implementation and evaluation of any form of legislative, regulatory or administrative policy in force, or request its removal (i.e. influence, to obtain its modification or removal, a public decision in force).
Covering the appointment of any person to a key position within the State is good international practice and should be included in the Act. Indeed, decisions on the appointment of certain public officials can be a key area of interest for lobbyists, allowing them to advance their interests if a person in line with their specific interests is placed in the position concerned. In France and the United States, the appointment of certain public officials is considered a type of decision covered by lobbying activities and is therefore covered by transparency requirements (Box 1.3).
France
The decisions covered by lobbying activities were specified in Law 2016/1691 for the promotion of transparency, combating corruption and the modernisation of the economy (Article 25). Under the heading of "other public decisions", the contours of which are not specified, the High Authority for the Transparency of Public Life considers that these cover "individual appointment decisions".
Decisions concerning financial contributions, contracts, permits or other authorisations are addressed in the next two sections.
The Act could allow for a greater adaptation of the disclosure of lobbying activities for certain public decisions without general scope and according to the institutional levels concerned
Quebec's Lobbying Act covers a broad spectrum of public decisions and institutions, and remains one of the most comprehensive and encompassing among OECD jurisdictions. At the time of its adoption in 2002, the Act covered parliamentary, government and municipal public institutions. Thus, the same legal and institutional framework applies to lobbying activities targeting the Quebec government as it does to activities carried out at the municipal level. Other cases exist in countries where the same institutional framework covers several levels of government (Figure 1.3 and Box 1.4).
Source: (OECD, 2021[1]).
In Austria, the Federal Act No. 64/2012 on the transparency of lobbying and advocacy activities covers activities targeting provincial governors, provincial legislators, mayors and members of their cabinets.
In Chile, Law No. 20/730 regulating lobbying and representation of private interests to authorities and public officials covers activities targeting regional directors of public services, governors, regional ministerial secretaries, regional councillors, mayors, executive secretaries of regional councils, as well as municipal secretaries.
In France, the Law n° 2013-907 of 11 October 2013 on the transparency of public life will cover the local level from 1 July 2022, including presidents of regions, mayors of cities with more than 150,000 inhabitants. This broad definition will make the register one of the largest in the world, eventually covering 19,000 public officials.
In Ireland, "designated public officers" (DPOs) under the Lobbying Act 2015 cover several positions in local authorities (chief executives, deputy chief executives, directors of services, finance officers, human resources officers).
In Lithuania, the "persons subject to lobbying activities" specified in the Law No. VIII-1749 on Lobbying Activities include mayors, members of municipal councils, directors of municipal administrations and their deputies.
Finally, in Slovenia, the Integrity and Corruption Prevention Act of 2010 covers activities targeting civil servants and public officials employed in local governments.
Source: (OECD, 2021[1]).
However, in OECD jurisdictions, Quebec remains one of the only frameworks applied at the provincial level that also applies at the municipal level. Indeed, in countries with a national or federal transparency framework that does not cover local government lobbying, transparency regulations have generally been adopted at the state level, but these do not usually cover the municipal level as a whole. In these states or provinces, separate regulations exist at the municipal level (Box 1.5).
Australia
Several states (Western Australia, New South Wales, Queensland, South Australia, Tasmania, Victoria, Australian Capital Territory) have adopted lobbying codes and registers, with similar registration requirements for consultant lobbyists lobbying in those states.
Canada
Except for Northwest Territories and Nunavut, all provinces and territories of Canada have adopted a specific framework regulating the interactions between public officials and lobbyists. These regulations usually include similar definitions and transparency requirements as the regulation at the federal level.
In particular, the lobbying regime in Québec regulates lobbying activities at governmental, parliamentary and municipal levels, ensuring consistency in the application of the regime throughout the Québec jurisdiction and its public institutions. In Newfoundland and Labrador, the regulation also applies to the City of St. John’s Municipal Council and its controlled entities.
In other Canadian jurisdictions, lobbying activities have also been regulated at the municipal level. The City of Ottawa introduced a 2012 Lobbyist Code of Conduct and a Lobbyist Registry. The City’s Integrity Commissioner oversees the implementation of the Lobbyist Registry and the enforcement of the Code of Conduct. Similarly, the Lobbyist Registrar of the City of Toronto maintains an online municipal registry of lobbyists and lobbying activities, established in 2018 by a lobbying by-law modifying the Toronto Municipal Code. The Lobbyist Registrar is one of the City’s four Accountability Officers, and oversees compliance with the Code of Conduct for lobbyists independently.
Other regulations exist in the municipalities of Brampton, Hamilton, Vaughan and Winnipeg, for example.
Spain
In Spain, several states (Aragon, Castilla-La Mancha, Catalonia, Valencia, Navarra) have adopted regulations on lobbying. The city of Madrid also adopted its own regulation in 2017.
United States
All states have adopted their own lobbying regulations. Some of these laws cover part of the municipal level, such as New York State, where the regulation applies to any municipality with a population of over 5 000. Specific regulations also exist at the municipal level, such as in New York, Chicago, Los Angeles, San Diego, San Francisco, Austin and San Jose.
Source: (OECD, 2021[1]), (Sunlight Foundation, 2013[16]), (National Conference of State Legislatures, 2021[17]).
The Quebec regime ensures that public decision-makers, lobbyists and Quebec citizens, regardless of where they reside in Quebec, have access to the same legal framework, which reinforces its coherence, makes it easier to understand and avoids a multiplication of divergent frameworks at different local levels. In this respect, the Quebec Act is one of the most comprehensive and coherent among OECD countries, and it is therefore desirable to maintain the coverage of the current Act with respect to municipalities. However, an undifferentiated application of the Act to all levels of government and to all public decisions without taking into account the reality of municipalities may undermine the objective of transparency of the Act and its effective implementation. The Quebec regime, which has no equivalent in international jurisdictions, must take into account the specificities of local public life, which increases the complexity of the application of the regime. The challenges to be taken into account include:
The density and continuity of relations between local actors and public officials, which is higher in municipal settings. Many citizens' associations, community groups, sports clubs, local residents' or young entrepreneurs' groups, as well as small and medium-sized enterprises, are active at the municipal level. These groups are generally less structured than the interest groups represented at the provincial level and have fewer resources. Above all, they seek a close relationship with local elected officials and are in regular contact with elected officials and civil servants in the municipalities. Reporting requirements for these actors for too many administrative decisions could be disproportionate if they are not adapted to different levels of government.
The heterogeneity of the local and municipal environment. The municipal organisation in Quebec is characterised by a limited number of municipalities with significant human and financial resources on the one hand, and a wide range of medium and small municipalities with more or less significant resources on the other. In addition, there are supra-municipal structures such as the regional county municipalities (RCMs). When it comes to managing the application of the Act, the reality of large cities can therefore differ considerably from that of small municipalities. As a result, limited financial and human resources, as well as weaker capacities, may weaken public management and control, and call for a simplified regime for the regulation of lobbying activities.
The close links between some corporate interests and local political elites. These links can lead to clientelistic practices and concentration of power, which undermines accountability and equity of access to public officials.
Taking these specificities into account requires finding compromises between the objective of transparency of the law, the risks in local public management and the requirements for the proper functioning of local democracy, for example the need to maintain a citizen dialogue with public institutions.
In its Diagnostic, the Quebec Commissioner of Lobbying deplores the fact that the scope of public decisions covered by lobbying activities is not distinguished according to the public institutions involved, whether municipal or provincial, the type of contract or the amount of funding. This absence of modulation according to the various institutional levels leads to a lesser readability of the information declared on the register, and runs the risk of diluting control and verification activities. In its Statement of Principles, the Commissioner of Lobbying proposes to establish, by regulation, specific, adapted rules concerning the regulation and disclosure of certain lobbying activities towards different levels of public institutions, especially concerning any form of financial investment, contract, permit or other form of authorisation that it is relevant to regulate (Principle 3 of the Statement of Principles).
The Commissioner of Lobbying considers that the legislative framework should cover all decisions concerning legislative, regulatory or strategic orientations, regardless of the institutional level. However, the Statement of Principles considers that lobbying activities should be disclosed when they relate to decisions concerning the granting of contracts, permits, authorisations or financial contributions in a manner that is adapted to the nature of these activities, their context and the institutions involved. Taking into account the specificity of the Quebec regime, which applies to both the provincial and municipal levels, as well as the exclusions already provided for in the Act (Box 1.6), it seems necessary to adapt the categories of decisions that would be considered relevant at different institutional levels and thus provide that the obligation to declare is only imposed on certain local public decisions.
Communications for the sole purpose of inquiring as to the nature or scope of the legal rights or obligations of a client, an enterprise or a group.
Any submission made by a person other than a consultant lobbyist concerning the granting of a permit, licence, certificate, authorisation, subsidy or pecuniary benefit, where the public office holder having the power to make the decision is only authorised in this regard to ascertain whether the legal requirements for the granting of such benefit are satisfied. The provision of documents or information required by a public office holder for the processing of that request is also excluded.
Any submission made in response to a written request from a public office holder, including any submission made in response to a call for public tenders issued under the public office holder’s authority.
Any submission made in the negotiation of an individual or collective labour contract or in the negotiation of a collective agreement for the provision of professional services.
Any submission for the sole purpose of informing a public office holder of the existence and characteristics of a product or service (outside the contractual process).
Communications for the sole purpose of enquiring about the process of obtaining a contract or about the requirements for the acquisition of goods.
Communications for the sole purpose of obtaining information about a product that an organisation wishes to acquire.
Communications within the framework of a call for tenders (such as the submission of the tender and the required documents or a simple request for information sent to the representative of the organisation designated in the call for tenders within the deadline for submitting a tender).
Any submission made in the negotiation, subsequent to the awarding of a contract, of conditions for the performance of the contract. However, the Act applies to discussions concerning significant changes to the contract or its renewal.
Source: (Légis Québec, 2002[7])
Several approaches can thus be taken. First, some of the exclusions in Article 5 of the Act concerning individualised decisions could be clarified and broadened. For example, the granting of funding, the allocation of which is a right for those who meet the legal requirements for obtaining it, could be excluded from the scope of the Act, regardless of the local level. In France, for example, the granting of an authorisation or the receipt of a benefit, the granting of which constitutes a right for those who fulfil the legal conditions for obtaining it, is not covered by the lobbying framework (Box 1.7). Communications made with a view to obtaining a grant awarded in accordance with the government policy "L'action communautaire: une contribution essentielle à l'exercice de la citoyenneté et au développement social du Québec" (Community. Action: A crucial contribution to the exercise of citizenship and social development in Québec) could therefore be excluded from the registration requirement (Gouvernement du Québec, 2001[18]).
In France, individual decisions aimed at issuing, modifying, withdrawing or renewing an approval, authorisation, certification, derogation, dispensation, exemption, accreditation, registration on a list, licence, permit, title, or financial benefit of any kind are included in the scope of the Act.
However, Article 1 of the Decree of 9 May 2017 nevertheless provides for an exception to this principle, specifying that "the fact of requesting, in application of legislative or regulatory provisions, the issue of an authorisation or a financial benefit of any kind does not constitute a communication within the meaning of the preceding paragraph, the delivery of an authorisation or the benefit of an advantage, the granting of which constitutes a right for persons who meet the legal conditions for obtaining it, as well as the fact of submitting an administrative appeal or taking a step which, by virtue of the applicable law, is necessary for the delivery of an authorisation, the exercise of a right or the granting of an advantage.”
By extension, the High Authority for the transparency of public life considers more generally that not all exchanges of information that take place between a legal person and a public official in the context of following up a request for an individual decision, whatever it may be, constitute communications. These exchanges are not intended to influence the individual decision in question, and therefore cannot be considered as interest representation. This exclusion is specifically aimed at the following situations:
Prior to the submission of an application, communications with the competent authority that are limited to announcing the submission, specifying the nature and characteristics of the operation or agreeing on a timetable.
During the appraisal of the application, all communications between the applicant and the administration competent to process it. This exclusion applies only to communications between the applicant and the competent administration concerning the decision in question during the appraisal period.
In the event of refusal of the application, communications which take place in the context of an informal, hierarchical or contentious appeal.
In case of acceptance of the request, all communications that are limited to the follow-up of the implementation of the individual decision.
Source: (HATVP, 2021[19]).
Secondly, the Act could adopt a risk-based approach and consider only the most sensitive decisions in terms of the specific reality of a given territory or organisation. For example, communications relating to individualised decisions (grants, permits, licences, certificates or other authorisations) could be excluded in small municipalities in favour of decisions of general application (standards, guidelines, programmes and action plans). In a less restrictive approach, consideration could be given to establishing thresholds for financial contributions, permits or other authorisations granted by a municipal body, such as representations made as part of an administrative process established under a defined programme for obtaining a grant, financial assistance, loan, loan guarantee or bond in an amount below a pre-determined threshold. Such thresholds are, for example, applied for certain financial contributions in the cities of New York or Austin. Decisions on public procurement are discussed in the section below.
The Act could take into account the advances in transparency and integrity allowed by the Act respecting contracting by public bodies
Ensuring integrity, effectiveness and efficiency in public procurement depends on fair access to procurement opportunities by potential competitors of all sizes, but also on an adequate degree of transparency in contract management. This is a fundamental principle of the OECD Recommendation on Public Procurement and the OECD Recommendation on Public Integrity (OECD, 2015[20]; OECD, 2017[21]). Indeed, disclosure of information at all stages of the contract management cycle helps to identify and subsequently mitigate mismanagement, fraud and corruption, and to increase the accountability of clients. Transparency also ensures the fair and equitable treatment of potential suppliers, while allowing important and relevant information to be easily accessible to all stakeholders.
The Government of Quebec has made significant progress in recent years towards establishing an institutional framework of integrity in public procurement processes applicable to public and municipal organisations and reducing undue influence by businesses in the conduct of public procurement (OECD, 2020[22]). Thus, two distinct institutional frameworks apply in the Quebec public sector: one governing contracts of government ministries and agencies (public bodies) and the other governing contracts of municipal bodies (Table 1.6).
As in the contract management systems of OECD countries and elsewhere, there are three types of procedures in Quebec: “the call for tenders (CFT)”, which is the general procedure used, “the invitation to tender”, ITT and direct award contracts (DCA). In Quebec, different CFT thresholds can be applied because public and municipal bodies are subject to different procurement liberalisation agreements. The thresholds therefore vary according to the status of the different bodies and whether or not the contracts are for supplies, services, information technology, or construction work. In certain situations, a direct agreement contract can be concluded when the amount of the contract is higher than the thresholds for public tendering. These include emergency situations, situations where only one contractor is possible, where the contract involves a matter of a confidential or protected nature, and where tendering would not be in the public interest.
Below the CFT thresholds, Quebec's regulatory framework ensures sound contract management by imposing a number of mechanisms on public bodies, including the possibility of:
Putting in place control provisions related to the total value of the contract and any additional expenditure.
Establishing a monitoring mechanism to ensure the effectiveness and efficiency of the procedures used.
Introducing, subject to any applicable cross-governmental agreement, measures promoting the procurement of goods, services, or construction works from competitors or contractors in the region concerned.
Accordingly, each public entity has internal regulations indicating the procedures to be followed in accordance with its principles. Municipalities are also required to adopt a contract management regulation, make it available on the internet and transmit it to the Ministry. They are able to put in place any rules they wish for the award of contracts involving expenditure of less than USD 100 000 as long as they adopt regulations on contract management specifying the circumstances in which these different modes will apply.
The establishment of the Autorité des marchés publics (AMP), with its audit and oversight powers, further strengthens the integrity framework for public contracts. Its monitoring mandate, as well as its powers of order for public bodies and of recommendation for municipal bodies, play a key role in strengthening integrity in the conduct of all public contracts in Quebec.
To increase transparency, Quebec has the Electronic Tendering System (SEAO). In terms of functionality, the SEAO is used mainly as a platform for publishing notices and documents relating to public contracts. Indeed, the publication of CFT documents on the SEAO is mandatory for all public bodies. The results of CFTs must also be published on the SEAO when this procedure is used. One of the aims of this measure was to combat collusion and malpractice in public procurement more effectively by avoiding direct contacts between potential bidders, as well as between potential bidders and public procurement officials. Since the introduction of this requirement, public and municipal bodies no longer communicate directly with bidders before the result of the tender is determined. The purpose of this practice is not to give a company an advantage over its competitors by providing it with privileged information.
In particular, the Quebec government has implemented targeted communications to make bidders aware of its ethical and lobbying standards. The Government of Québec requires public works contractors (PWCs) to include a questionnaire in their call for tenders to find out why a company did not submit a bid, even though it obtained the tender documents. In addition, the call for tenders documents recall the rules to be followed under the Lobbying Transparency and Ethics Act and the Code of Conduct for Lobbyists. Each bidder must attach to its bid a declaration stating that the communications, if any, were made in accordance with the Act and the Code. However, the OECD had made a number of recommendations to enhance transparency in the conduct of public procurement, including the publication of meetings with suppliers.
In order to avoid duplicating or overlapping the disclosure of information, the Quebec Commissioner of Lobbying proposes to take into account the transparency and ethics processes already in place and adopted since the Act came into force, particularly with respect to the awarding of public contracts (Principle 1 of the Statement of Principles). In particular, the Commissioner is of the opinion that the lobbying regime should not seek to compensate for the shortcomings of other transparency and disclosure regimes put in place by the State and for which the relevance of the information has already been considered, especially since exclusions are already provided for in the Act (Box 1.6).
Currently, the Act covers the award of a contract other than through a public tender. Influential communications made upstream to define needs and technical specifications are therefore covered, while communications that take place after the CFT has been launched are excluded.
In light of the above, it seems justified to better delimit by law or by regulation the decision-making processes of a public institution concerning any contract covered by a lobbying framework. This could involve, for example, excluding from the scope of the Act the awarding of some or all (below a certain value threshold) DCA concluded at the municipal level insofar as each public entity has internal regulations or contract management regulations governing the awarding of this type of contract.
However, it seems essential to cover the needs definition and procurement planning stage, which is particularly vulnerable to undue influence and corruption in large infrastructure projects, notably because of the degree of government discretion over investment decisions, the size of the sums involved, the technical complexity of the projects and the multiple stages of the investment cycle (OECD, 2017[23]). The influence of political interests, particularly at the stages of defining investment needs and programming projects, can lead to waste and the creation of 'white elephants' (i.e. infrastructure that does not meet needs and whose costs are not justified by its utility). In France, for example, the needs definition stage is covered by the lobbying regime, and some communications are then excluded once the call for tender has been completed, as is currently the case in Quebec (Box 1.8). This would be covered by Principle 1 of the Statement of Principles and the previous recommendation to cover influence on policy or administrative directions.
In France, certain communications relating to competitive tendering procedures on the basis of Article 42 of Order No 2015-899 of 23 July 2015 on public contracts or Article 36 of Order No 2016-65 of 29 January 2016 on concession contracts are not covered by the framework regime.
Thus, the head of a company specialising in IT security, who approaches the office of the Minister of Defence to convince him of the need to launch a public procurement contract for the acquisition of data encryption technology with a view to reinforcing the security of the ministry's information systems, is carrying out an action of representation of interests. On the other hand, once the Ministry launches the competitive tendering procedure, its relations with this company and with the other candidates, until the contract is signed, are excluded from the scope of representation of interests, as are the relations that will be established with the selected candidate for the execution of the contract.
Source: (HATVP, 2021[19]).
To strengthen the coherence of the scope of application, the Act could also cover the Education network
The entry into force of the Act to modify the organisation and governance of the health and social services network, has extended the scope of application to health institutions (Table 1.1). Before 1 April 2015, only the Ministry of Health and health agencies were covered by the Act. The following institutions are now covered:
Integrated Health and Social Services Centres (CISSS), Integrated University Health and Social Services Centres (CIUSSS).
Non-merged institutions: Centre hospitalier de l'Université de Montréal; Centre hospitalier universitaire Sainte-Justine; McGill University Health Centre; Montreal Heart Institute; Institut Philippe-Pinel de Montréal; CHU de Québec - Université Laval; Institut universitaire de cardiologie et de pneumologie de Québec - Université Laval.
Establishments that operate the following missions: local community service centre (CLSC), hospital centre (CH), residential and long-term care centre (CHSLD), child and youth protection centre or rehabilitation centre.
Public office holders in the health care system interviewed for this report confirmed the relevance of including this sector in the scope of application, given the risks involved in the acquisition of products or services in the hospital environment. Similar concerns exist in the education sector, which includes school boards, colleges and universities, and which is not covered by the legislative framework (with the exception of the Ministère de l'Éducation et de l'Enseignement supérieur), even though it represents the second largest mission of the Quebec government in financial terms. The majority of elected officials and citizens consulted in 2018 as part of the establishment of the Diagnostic and the Statement of Principles of the Quebec Commissioner of Lobbying were in favour of making this public sector subject to the law.
Among Canadian jurisdictions, Prince Edward Island's regime covers lobbying of education departments, while New Brunswick's regime covers lobbying of the district education council and the board of directors of a regional health authority. Thus, to ensure consistency, the Quebec legislator could maintain the coverage of institutions in the health and social services network and consider including in the education network.
The law could cover all lobbying activities that are carried out with any elected official, officer or staff member of the public institutions covered by the scope
In order to ensure the effective enforcement of the Act, it is essential that all those engaged in lobbying activities be able to easily identify those who are considered public office holders within the meaning of the Act. In Quebec, the term "public office holder" refers to any elected official or person appointed to perform duties within the public administration:
At the parliamentary level: the 125 Members of the National Assembly and their staff.
At the government level: ministers, deputy ministers, cabinet staff and employees of the government and governmental organisations (approximately 350 ministries and agencies of the Quebec government).
At the municipal level: mayors, municipal or borough councillors, wardens, chairs and other members of the council of a metropolitan community, as well as persons on their staff and employees of municipalities and municipal bodies (approximately 1 500 municipalities and municipal and supramunicipal organisations).
The Quebec Commissioner of Lobbying has pointed out on several occasions that since its adoption, the Act has been the source of many erroneous interpretations and questions from lobbyists and public office holders. In return for a greater precision in the scope of the public decisions covered, the Commissioner recommends that the provisions concerning public office holders be made easier to understand and that they "cover all public institutions and the elected officials, officers and employees of those institutions that lobbying activities may be directed towards, including the legislative, executive and administrative systems at the provincial and municipal levels" (Principle 6 of the Statement of principles). This principle implies that all provincial, municipal, educational and health care institutions are covered by the regime, without exception, as well as all elected officials, officers and staff of these institutions. The restrictions on the scope of application of the Act would thus not apply to the institutions or public officials covered, but to certain lobbying activities.
This provision is feasible and could facilitate the application and understanding of the Act to the extent that the previous recommendations come into force, in order to avoid an overly broad scope in the application of the Act and less relevance in the information reported. This approach has also been adopted in several OECD countries. In Australia, for example, all public officials of an organisation subject to transparency requirements are covered by the lobbying regime (Figure 1.4).
Source: Additional research by the OECD Secretariat.
However, it seems essential to implement a disclosure regime adapted to the category of public official targeted, so as not to burden the information requested in the register. In this case, a category of "designated public office holders" or "designated public officials", to whom specific disclosure obligations would apply and who should be listed in the register, could be maintained and specified either in the Act or in a regulation. This issue is discussed in more detail in Chapter 2.
To promote transparency and allow for public scrutiny, the OECD encourages countries to clearly define the terms 'lobbying' and 'lobbyist'" when they consider or develop rules and guidelines on lobbying. The definitions should be robust, comprehensive and sufficiently explicit to avoid misinterpretation and to prevent loopholes (Principle 4 of the Recommendation), while considering the administrative burden of compliance to ensure that it does not become an impediment to fair and equitable access to government (Principle 2 of the Recommendation). In this perspective, it is appropriate to:
Consider the definition of 'lobbyist' in an inclusive way in order to ensure a level playing field for all interest groups, whether business or not-for-profit entities, which aim to influence public decisions.
Provide for certain adaptations in order to strike a fair balance between the diversity of lobbying entities, their capacities and resources, with the measures to enhance transparency.
Clearly specify the type of communications with public officials that are not considered 'lobbying' under the rules and guidelines.
Clarify the thresholds above which activities are covered by the disclosure regime.
Cover indirect lobbying activities, ensuring that the definition is adapted to changing practices and sufficiently unambiguous to avoid misinterpretation and regulatory loopholes.
Include provisions on the participation of lobbyists in certain advisory groups.
The Act could make the activities of all interest groups engaged in lobbying transparent without making exceptions for different types of organisations
An adequate level of transparency on lobbying activities fosters transparency on who is influencing government policy or engaging in influential communications. This implies the clear identification of those actors who are considered lobbyists in the decision-making process. Non-profit organisations (NPOs) and associations of NPOs are subject to the Lobbying Transparency and Ethics Act. On the other hand, the Lobbying Transparency and Ethics Act Exclusions Regulation restricts the application of the Act to NPOs constituted for management, union or professional purposes or made up of a majority of for-profit enterprises or representatives of such enterprises (Table 1.7).
Thus, 20 years ago, the Quebec legislator chose to impose the obligation of transparency on certain types of actors whose activities involve the pursuit of a financial or corporate benefit, rather than delimiting a perimeter of actors subject to the obligation according to the nature of their communications of influence and their impact on public decision-making. Interest groups whose activities are aimed at promoting values or causes and not at pursuing financial or professional ends are not subject to registration. Under the current framework, not all actors conducting lobbying activities are therefore subject to transparency requirements. For example, lobbying aimed at influencing the content of a draft law should be registered if initiated by a company, whereas lobbying of the same nature to the same public decision-makers is currently not subject to any transparency measures if it is carried out by a non-profit organisation.
However, the OECD Recommendation, while stating that rules and guidelines should primarily target those who receive compensation for carrying out lobbying activities, such as consultant lobbyists and in-house lobbyists, also explicitly stresses that the definition of lobbying activities should also be considered more broadly and inclusively to provide a level playing field for interest groups, whether business or not-for-profit entities, which aim to influence public decisions (OECD, 2010[6]). Indeed, influence on public decision-making processes can be exercised by a wide range of actors and interest groups (Box 1.9). In addition, some non-profit organisations are increasingly resourced with financial means and a dedicated team to carry out lobbying activities.
Influencing decision-making processes involves several types of actors, including:
Companies specialising in lobbying or public relations, law firms or independent lobbyists mandated to represent third party interests, such as companies or other organisations. These companies or individuals, usually located in key decision-making centres, have a deep understanding of the public policy-making process in a given jurisdiction. In countries with lobbying regulations, these actors are often referred to as "consultant lobbyists".
Private companies and their representatives through in-house lobbyists, or associations representing their interests (including sectoral or general associations such as chambers of commerce).
Trade unions and professional or industry associations representing employees or professions.
Non-governmental organisations, charities, community organisations, foundations and religious organisations. These organisations are the largest and most diverse group of actors influencing the public policy process. They bring causes to the attention of public policy makers, with a subjective view of the nature of the interests being defended. These organisations (be they public, corporate or state-funded) receive funding, usually from companies, public authorities or individuals, and represent specific interests and policy positions. They are increasingly numerous and organised (Colli and Adriaensen, 2018[24]).
Research centres, think tanks and policy institutes, which offer knowledge on specific problems and can propose solutions.
Source: (OECD, 2021[1]).
Non-profit organisations are also active in changing existing law in order to translate the principles they advocate into law. Their activities are not limited to intervening in public fora, such as parliamentary committees or public consultations. They may engage in lobbying activities comparable to those of other actors when they seek to highlight the salient feature of a public policy issue, notably through research, awareness-raising and proposing amendments to the legislator (Darut and Germond, 2021[15]). NPOs interviewed by the OECD also confirmed that they conduct influence communications, such as written communications or meetings aimed at changing laws or policies, or the production of opinion pieces, research or publications that are sent to public office holders to defend a particular position. Increasing transparency on these activities is therefore also in the public interest. For example, an analysis of the origin of proposed amendments to legislation in France showed that non-governmental organisations have been particularly active in influencing legislative processes (Box 1.10).
An analysis of the amendments proposed to the French deputies and senators in the framework of the "AGEC" bill (Law n° 2020-105 of 10 February 2020 on the fight against waste and the circular economy) showed that over 55% of the amendments came from non-governmental organisations, while 22% came from business federations. Of all the amendments sourced, thirteen amendments proposed by NGOs were adopted, and ten by business federations.
However, the analysis focuses on amendments whose source is voluntarily disclosed by deputies and senators. This voluntary tracking may lead to an over-representation of NGOs and voluntary actors among the sourced amendments, as these may be perceived as more acceptable than those proposed by industry representatives, and therefore more disclosed by elected representatives.
Source: (Communication & Institutions, 2020[25]).
This lack of accountability of NPOs may therefore be considered an obstacle to achieving the objectives of the Act with respect to transparency and the sound exercise of these activities. The regulatory regime for this type of influencing activity should not depend on the type of organisation represented, nor on its method of financing or its field of intervention. These criteria are not the most relevant when pursuing the objective of the law to make transparent influence communications targeting public office holders.
In its Statement of Principles, the Quebec Commissioner of Lobbying recommends regulating lobbying activities exercised by all interest representatives acting on behalf of an individual or entity, regardless of its nature, including a grouping of entities (Principle 4 of the Statement of Principles). This would align the regime in Quebec with most OECD jurisdictions that have established transparency mechanisms for lobbying practices (Table 1.8). In France, for example, all such groups, with the exception of religious organisations, are required to register in the register of interest representatives once they reach the registration threshold. Non-profit organisations are also covered in all Canadian provinces and at the federal level.
In other countries, such as Australia and the United Kingdom, these organisations are not automatically excluded from the scope of the law. Their coverage depends on the nature of their activities, not on their status or objectives. For example, in the United Kingdom, if one of these organisations communicates with ministers or permanent secretaries on behalf of paying clients, the activity must be disclosed. However, if they are communicating on their own behalf, the activity does not need to be registered.
In these countries, as well as in Canadian jurisdictions, the general subjection of non-profit organisations to the rules and guidelines governing lobbying activities has not been as contested as in Quebec. These rules also provide for exclusions and exemptions applicable to NPOs. In Ireland, for example, the regular review of the implementation of the Lobbying Act of 2015 has revealed an overall acceptance of the regulatory regime, including by non-profit organisations that may have expressed concerns at the time the Act was introduced (Box 1.11). Specific exemptions and exclusions are discussed in the next section.
In Ireland, Section 2 of the Lobbying Act 2015 states that the Department of Public Expenditure and Reform must conduct regular reviews of the implementation of the Act. The first review of the Act took place in 2016 and the second in 2020.
The consultations carried out for these reviews confirmed that overall the Act has been well received and implemented by the various stakeholders, and that the objective of transparency and accountability in lobbying has been achieved. Some of the non-profit organisations interviewed also stressed that their initial concerns expressed during debates on the Bill in 2012 about the potential inhibiting effects of the Act on their activities had been taken into account in the development of the framework. As a result, the Act has not been an obstacle to the continuation of their activities.
Scotland
In Scotland, a report commissioned by the Scottish Parliament on the implementation of the Lobbying Act 2016, confirmed that the Act did not have an inhibiting effect on the lobbying activities of not-for-profit organisations covered by the Act. Although the administrative burden has increased for these organisations, registration has also had benefits, such as increasing public awareness of the activities of these organisations to influence public policy on matters of public interest.
Source: (Department of Public Expenditure and Reform, 2020[26]; Hepburn, 2017[27]).
However, the law could provide for some specific exemptions that take into account the diversity of non-profit organisations, their capacities and resources
The OECD Recommendation stresses that jurisdictions should take into account the scale and nature of their lobbying sector. Where the supply and demand for professional lobbying is limited, the Recommendation encourages jurisdictions to consider the effects of mandatory regulation to increase transparency, accountability and integrity in public life, and to take into account the administrative burden of compliance to ensure that it does not become an impediment to fair and equitable access to government.
In Quebec, for example, many small NPOs are composed solely or mainly of volunteers. The Quebec legislator and the Commissioner of Lobbying have already given careful thought to the issue of making non-profit organisations subject to the rules in Bill 56 (2016) which provided for all non-profit organisations to be subject to the rules (Box 1.12).
The Bill made the following actors subject to the definition of an organisation lobbyist:
Employees, officers or board members of a non-profit organisation (including volunteers) who lobby for that organisation or for a non-profit organisation or unincorporated association of which that organisation is a member.
Individuals who hold office in an unincorporated group and who lobby for that group.
Certain exemptions were provided, including influence communication activities carried out:
By a natural person on behalf of an association composed solely of natural persons not incorporated as a non-profit organisation.
For a non-profit organisation by a volunteer who is not an employee, officer or board member of the organisation or who is not an employee, officer, board member, partner or shareholder of a for-profit business, related entity or member non-profit organisation.
In the case of an unincorporated association, by one of its volunteers who is not an employee, officer, board member, partner or shareholder of a for-profit business, related entity or non-profit organisation that is a member of that association.
For entering into an agreement or obtaining a grant to cover operating expenses or to support the overall mission of a non-profit organisation, in accordance with an existing law, regulation or programme.
To obtain a contract or financial assistance of USD 5 000 or less.
Source: (Lobbyisme Québec, 2016[11]).
At the request of the National Assembly, the Commissioner of Lobbying conducted a study in June 2016 on subjecting all NPOs to the lobbying framework rules. This study, based on the consultation of representatives of 58 NPOs from various sectors of intervention and the reading of 64 briefs that had been submitted to the Commissioner, had the objective of identifying the difficulties faced by NPOs and proposing possible solutions to better implement the Act's transparency objective and citizens' right to information, while taking into account the specificities of collective action organisations (Table 1.9).
For example, there are approximately 8 000 organisations working in the field of community action in Quebec, of which 4 600 are supported by the Quebec government. These organisations are the result of citizens' initiatives and work to implement local services or activities based on the values of solidarity and democracy. When they are created, they are generally made up of volunteers and have recourse to philanthropic resources or support from municipalities or the Quebec government. There are also close to 350 groups of organisations supported by the Quebec government, which facilitate the work of community organisations and often provide representation, influence and mobilisation. The government policy on the recognition and support of community action, adopted by the Quebec government in 2001 and entitled "Community. Action: A crucial contribution to the exercise of citizenship and social development in Québec", as well as the Reference Framework for Community Action, already set out the relationship between community organisations and the State (Gouvernement du Québec, 2001[18]). According to this policy, "these organisations respond to the needs expressed by citizens who are experiencing a similar problematic situation or who share a common objective of well-being". As such, the Ministry of Labour, Employment and Social Solidarity (MESS), which is responsible for community action, works with three designated groups: the Réseau québécois de l'action communautaire autonome (RQ-ACA), the Réseau de l'action bénévole du Québec (RABQ) and the Réseau québécois de développement social (RQDS). Two other organisations also have this status of privileged interlocutor under the Social Economy Act: the Chantier de l'économie sociale and the Conseil québécois de la coopération et de la mutualité.
Some of the public office holders interviewed for this report also confirmed that these organisations can be seen as central partners of the state in certain areas, such as advocacy, health and social services, which places them in an atypical position with respect to the field of interest representation. These organisations have repeatedly expressed concerns about being subject to the Act without providing exceptions or exemptions (Box 1.13). Several charities have also expressed concern that their status may be challenged if they become subject to the Act. However, the study conducted by the Quebec Commissioner of Lobbying in 2016 had determined that coverage did not pose a problem of consistency with the community action policy or the special status of charities.
Identity and DNA of community organisations
Non-profit organisations derive their legitimacy from their democratic and political mission and their roots in the community.
Lobbyists are paid specialists within companies or commercial firms who aim to influence public decision-makers, whereas community organisations are vehicles for social transformation.
Community organisations do not have pecuniary or corporate objectives; they defend the common good and the general interest.
The status of lobbyist would not give associations more credibility but would, on the contrary, tarnish their reputation because of the pejorative connotation of the word and the context of the adoption of the law, which was adopted in response to a scandal involving for-profit interests.
Transparency
Transparency is central to the governance of NPOs (via activity reports, financial statements).
All the positions and representation activities of community organisations are already made public, often accompanied by a press release.
A subjugation would lead to an avalanche of registrations in the Lobbyists Registry, the relevance of which is not obvious.
The registry would be duplicative, as groups of organisations make the same types of representations as their member organisations, and would contain an overabundance of information.
The Act was designed for the private sector in response to a lack of transparency in that sector. There is no real need or risk in making NPOs subject to it.
Illegitimate government control
Being covered by the Act would be an obstacle to the right of association.
The desire to force the registration in a public registry of all individuals who engage in political representation activities, without remuneration as lobbyists, is a systematic control of activities emanating from the freedom of association of NPOs.
The desire to make NPOs subject to the law is the result of pressure from lobbyists who are subject to the law.
Policy for the recognition of community action
The government would fund organisations to make representations to the State, while requiring these same organisations to register these representations on the register.
By their very nature, some organisations meet with the authorities on a frequent basis, and influence communications with public office holders are part of their mission and their DNA in order to position themselves in the public arena.
Source: (Lobbyisme Québec, 2016[11]); Institut du Nouveau Monde (2016), Compte-rendu d’une rencontre organisée par l’Institut du Nouveau Monde sur l’assujettissement des OSBL aux règles d’encadrement du lobbyisme, déposé à l’attention de Me François Casgrain, Commissaire au lobbyisme le 1er mars 2016 ; (Lamarche et al., 2017[28]); Elements shared at the OECD consultation workshop with NPOs on 17 February 2022.
In the continuity of these reflections, the Quebec Commissioner of Lobbying proposed in its Statement of Principles to provide for several exclusions so that the Act ensures a space for dialogue with public institutions.
First, the Commissioner proposes to exclude interest representations made without an intermediaryby a community organisation primarily offering support services directly to the public (Principle 7 of the Statement of Principles). This would exclude community organisations working in the areas of health, the fight against poverty, housing, food aid, autonomy and well-being, family, sports, recreation and culture. This solution, already favoured by the Commissioner in 2016, seems reasonable given the objective sought. Such an exclusion could be included in the same spirit as those existing in Germany, Belgium, Ireland, the United Kingdom and the European Union, which concern the activities of trade unions and social partners as participants in social dialogue.
However, registration requirements could cover groupings of organisations, as part of their mission is to carry out representation activities on behalf of their members. The registration of a grouping or coalition would cover for all members of the grouping. In order to reduce the administrative burden, this requirement should go hand in hand with more flexibility in the registration procedures in the Lobbyists Registry. Only one registration in the Lobbyists Registry per organisation should be required, in which only the names of persons who are salaried or who have been designated to participate in the governing bodies (board of directors) would be indicated, and not those of volunteers, even if they have been mandated to carry out interest representation activities on behalf of the organisation. However, the activities of volunteer members should be monitored and disclosed in the register, without the obligation to register and disclose being placed on these volunteers.
Similarly, it could be clarified that advocacy activities carried out for the benefit of a coalition that has only non-profit members are covered by the Act. Provincial legislation in Alberta, British Columbia, Manitoba, Nova Scotia, Ontario, and Newfoundland and Labrador includes coalitions in the definition of an organisation.
Second, the Quebec Commissioner of Lobbying proposes to define a clear space for dialogue when it is the citizen himself, without an intermediary, who addresses public institutions and when he/she finds himself/herself in a process that already provides for intervention mechanisms or that requires his/her intervention with institutions (for example, to exercise a right or to challenge an obligation imposed by legislation). This would exclude:
Activities carried out by an entity, in its role as citizen or taxpayer of the State, to promote its own rights or interests if its intervention is specifically provided for or required by law and carried out in accordance with specific processes;
Activities carried out by an individual or group of individuals to promote their own rights or interests as citizens or taxpayers of the State.
With such an exclusion, communications made by individuals, companies or organisations in order to obtain funding, a permit or an authorisation in a normative context would thus be excluded, since the law or regulation requires the organisation to obtain this permit or authorisation from the State or public institutions.
However, it is necessary to clarify this recommendation to ensure that the registration of these types of organisations in all other cases is not disproportionate to the objective pursued. Indeed, several NPOs reiterated during consultations with the OECD their concerns about the administrative burden of registering as lobbyists in particular cases involving, for example, a single interest representation activity conducted by neighbourhood associations with no employees. For such cases, it seems necessary to consider exemptions in order to preserve the objective of disclosing relevant of information and to avoid imposing a registration obligation on small citizen structures that carry out very little lobbying activity within the meaning of the Act. Certain thresholds could be introduced, and assessed at the level of the entity carrying out activities, such as the time spent preparing, organising, carrying out and following up a lobbying activity. This criterion could be assessed over a period of six months or one year. In British Columbia, for example, thresholds have been introduced where one or more individuals in an organisation, alone or collectively, have spent at least 50 hours lobbying or preparing to lobby in the previous 12 months. A similar mechanism could be envisaged for interest representation activities carried out by an individual, or a group of individuals, where the nature of such representation falls within the scope of the Act. This would both avoid diluting relevance - where such representations are one-off or ad hoc - and not totally exclude such activities, which, in the view of several stakeholders interviewed by the OECD, can have considerable influence on certain decisions, particularly at the municipal level.
Finally, interest representation activities carried out by an individual on his or her own behalf and in a non-professional capacity should not be considered lobbying. For example, an individual who writes to a Member of Parliament to request the amendment of a law would not be a lobbyist in the meaning of the Act. This type of exclusion is, inter alia, provided for in Austria ("activities of a person with which he pursues his own non-business interests"), Germany ("activities of natural persons who formulate exclusively personal interests with their submission"), Lithuania ("opinion expressed by a natural person with regard to legislation") and France ("activities of natural persons who carry out interest representation activities for themselves in a non-professional capacity").
The criterion of initiative for lobbying activity is not very relevant and could be removed
In Quebec, section 2 of the Act specifies that a lobbying activity includes any oral or written communication. The arranging by a lobbyist of a meeting between with a public office holder and any other person is considered to be a lobbying activity.
The OECD Recommendation states in Principle 4 that definitions should clearly specify the types of communications that are not considered to be lobbying activities, such as communications that have already been made public, including formal presentations to parliamentary committees, public hearings and established consultation mechanisms.
In addition to the exclusions already specified in Section 1, the Act does not apply to the following activities:
Representations made in or prior to judicial or adjudicative proceedings ;
Representations made to a parliamentary committee of the National Assembly or at a public meeting of a municipal council or municipal body ;
Representations made in public proceedings, or in proceedings that are a matter of public record, to any person or body having jurisdiction or powers conferred by an Act, an order in council or a ministerial order ;
Any submission the disclosure of which could reasonably be expected to threaten the safety of a lobbyist or a lobbyist’s client, a public office holder or any other person.
Any submission made in response to a written request from a public office holder, including any submission made in response to a call for public tenders issued under the public office holder’s authority.
This last exception may make it difficult, in the event of a potential infringement, to trace who initiated a communication, especially when the relationship between a parliamentarian and an interest representative is regular and well established. This also creates inequalities between interest representatives: those who have built up close and regular relationships with decision-makers are more easily identified by public officials and are more often approached; as a result, they may be subject to lesser disclosure obligations than interest groups with limited contacts who almost always initiate these exchanges.
The law could thus specify that the reporting obligation applies when the disclosure is initiated by the public official and does not concern purely factual information. The exception could only concern communications made in response to a request from a public official concerning factual information, as is the case in twelve OECD jurisdictions (Australia, Austria, Belgium, Canada, Chile, France, Germany, Ireland, Peru, the United Kingdom, the United States and the European Union). The Quebec Commissioner of Lobbying had already suggested a similar exception in 2017, recommending that representations made for the sole purpose of answering technical questions from a public office holder be excluded from the application of the Act, provided that the response does not otherwise seek to influence such a decision or cannot be considered as seeking to influence such a decision. In the United Kingdom, a communication from a Minister or Permanent Secretary does not need to be registered. However, if a minister or permanent secretary initiates a communication with an organisation and, as a result of the exchange, the criteria for lobbying are met, the organisation is required to register and record its activity.
Similarly, all representations concerning the execution, interpretation or application of a law or regulation with regard to an organisation could also be excluded. Such a provision exists for example in France (Box 1.14).
In France, not all communications that are limited to factual exchanges are covered by the framework. These are situations where the communication is limited to one of the following purposes:
Where an organisation requests factual information, accessible to any person, from a public official.
When an organisation asks a public official for an interpretation of any existing public decision.
When an organisation provides a public official with information about its operations or activities, without a direct link to a public decision, for example in the context of sending an annual activity report or a factory visit.
Source: (HATVP, 2018[29]).
Finally, it seems necessary to maintain the other exceptions provided for, in particular influence communications where all elements of the consultative process are already made public (e.g. hearings in parliamentary committees).
The law should cover grassroots lobbying
Lobbying is itself a constantly evolving concept and the advent of social media has further increased its complexity. Lobbying laws and regulations therefore frame an environment that is bound to change. Increasingly, interest groups are using traditional and social media to shape policy debates, shape public perceptions and those of public officials, or to persuade civil society to put pressure on decision-makers and indirectly influence the public decision-making process. In particular, companies are increasingly using these type of activities to address civil society because of increased expectations of their social and environmental responsibility.
The inclusion of such indirect lobbying activities has become unavoidable. It is also seen by some stakeholders, such as institutional investors, as relevant information that should be disclosed. Indeed, the last decade has seen the emergence in Quebec, as in all OECD jurisdictions, of a new shareholder activism that assesses the contribution of companies to certain societal issues. This "shareholder activism" is also manifested by the demand for greater transparency on companies’ political activities (Tchotourian, 2019[30]). Investors and major asset managers increasingly view the lack of transparency on corporate lobbying and political engagement, and its inconsistencies with companies’ positioning on environmental and societal issues, as an investment and environmental, social and governance (ESG) performance risk (Principles for Responsible Investment, 2018[31]). The number of shareholder proposals concerning the disclosure of corporate political involvement has increased dramatically over the past decade, becoming one of the most popular types of shareholder resolutions put to the vote, particularly in the area of climate change lobbying (Box 1.15). These proposals systematically include appeals to the general public and indirect lobbying.
In 2020, BNP Paribas Asset Management submitted proposals in three companies (Chevron, Delta Airlines and United Airlines) requiring them to disclose more information on how their lobbying activities align with the goals of the Paris Agreement. The resolution targeting Chevron received majority shareholder support (54%), while the two other resolutions at Delta and United received 46% and 32% respectively.
In 2021, BNP Paribas Asset Management targeted two companies (Delta Airlines and Exxon Mobil) with a request for more information on how their “lobbying activities (direct and through trade associations) align with the […] Paris Climate Agreement”. The proposal won a majority of votes in both companies (63.8% of votes in Exxon Mobil; Delta has not reported the percentage). In the US, over the course of the 2021 proxy season, three other similar climate-lobbying proposals garnered a majority vote with support levels ranging from 76.4% (Norfolk Southern Corporation) to 62.5% (Phillips66). One proposal, submitted to Sempra Energy, received 38%.
These lobbying proposals required that companies disclose some of the following information on an annual or semi-annual basis:
Policies and procedures governing direct and indirect lobbying as well as grassroots communications.
Expenses made for the purpose of lobbying activities, and the recipients of such payments.
Memberships in and payments to any tax-exempt organisation that drafts and endorses legislation.
A description of the board and management oversight of lobbying expenditures.
Source: (OECD/PRI, 2022[32]).
Currently, lobbying disclosures in Quebec for registered lobbyists must indicate the types of communication that the lobbyist intends to use or has used. The registry therefore makes it possible to know whether communications will be made through written or oral communications, through physical meetings or telephone calls.
At the international level, the Canadian Lobbyists Registry and the EU Transparency Registry require lobbyists to disclose information on the use of social networks as a lobbying tool. At the federal level, lobbyists are required to disclose any communication techniques used, including grassroots communications. Similarly, the EU transparency register covers activities aimed at "indirectly influencing" the EU institutions, including through organising communication campaigns, platforms, networks and grassroots initiatives. At the sub-national level, most Canadian and US jurisdictions that regulate influence communications consider appeals to the general public as a means of communication to influence public office holders.
As is the case at the federal level and in other Canadian provinces that regulate lobbying activities, the Quebec legislation should also require lobbyists to declare whether they intend to use "grassroots lobbying" as a means of communication. These types of appeals, made directly by a lobbyist to the public or through a widely circulated media, are intended to convince the public, members of an organisation or another group of people with similar interests to communicate directly with a public office holder in order to pressure him or her to support a certain position. Quebec could for example align its Act with the federal requirements (Box 1.16). The Act could also state that signing and requesting signatures on petitions is not covered by this type of communication.
In Canada, the Lobbying Act defines "grassroots lobbying" as “any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion”.
In its August 2017 Interpretation Bulletin, the Office of Commissioner of Lobbying of Canada clarified the means used for the purpose of appealing to the general public, which may include letter and electronic messaging campaigns, advertisements, websites, social media posts and platforms such as Facebook, Twitter, LinkedIn, Snapchat, YouTube, etc.
The Commissioner also indicated that participation in the strategic and operational activities of an appeal to the general public (approving items, providing advice, conducting research and analysis, writing messages, preparing content, disseminating content, interacting with members of the public) also requires registration.
Source: (Office of the Commissioner of Lobbying of Canada, 2017[33]).
The Act could require the disclosure of the sources of funding for research, think tanks and organisations
One way in which vested interests influence government policy is by funding third-party organisations, such as think tanks, research institutions or associations. The aim is to present expert opinion, evidence and data and to mobilise the public around the public policy process. However, as with any other form of lobbying, there is a risk of subjective influence, hence the importance of ensuring transparency around these practices to allow for public scrutiny (Benamouzig and Cortinas, 2019[34]; Bruckner, n.d.[35]).
Greater transparency on the funding of these organisations in particular would help to distinguish between genuine advocacy networks and the practice of 'astroturfing'. Astroturfing is the practice of creating or funding citizens' associations or organisations in order to create or reinforce an impression of widespread popular support for a public action or programme, in order to indirectly influence decision making. The messages conveyed give the appearance of a spontaneous and disinterested consumer or citizen movement, but in reality conceal positions aligned with those advocated by an industry, lobby group or other interest group. To date, the EU Transparency Register is the only transparency regime that requires think tanks, research centres and academic institutions to declare the source of their funding: any organisation must indicate its sources of funding in the register, either by providing a link to a web page containing the relevant information or by requiring disclosure of this information to the register if the information is not already publicly available.
The Quebec Act could therefore also cover these indirect lobbying practices, by placing the disclosure obligation on the entities that finance these types of organisations, or by requiring the organisations themselves to disclose their source of funding, as is required at the European level.
The minimum threshold of lobbying activities is a source of confusion and could be removed or assessed at the entity level
As at the federal level, the definition of an enterprise lobbyist and an organisation lobbyist subject to the Act includes the notion of "significant part of duties", indicating the threshold from which influence communications must be disclosed. The Quebec Commissioner of Lobbying has produced several interpretation notices to help lobbyists determine whether they are carrying on activities "for a significant part of duties", but these notices have been challenged in the past before the courts (Cour d'appel du Québec, 2017[36]). The Commissioner is of the opinion that this notion is confusing for both lobbyists and public officials because of its subjective dimension. This aspect of the Act could also allow some lobbyists to circumvent the Act and use this provision as a defence in the event that they are under investigation for not registering their activities.
The Commissioner of Lobbying recommends that “no minimum threshold of activity is required, nor do interest representatives need to be remunerated for the Act to apply” (Principle 5 of the Statement of Principles). Difficulties with the concept of "significant part of duties" have also been noted by other international jurisdictions, such as France and Canada, as well as in other Canadian jurisdictions. Recommendations to remove the substantial part of duties provisions have been made by the Commissioner of Lobbying at the federal level (Office of the Commissioner of Lobbying of Canada, 2020[37]) and in other Canadian jurisdictions.
The recommendation seems consistent with the objective of the Act to make transparent all communications aimed at influencing decisions made by public institutions, and not only those that are carried out for a significant part of duties. However, removing the notion completely could result in a large number of small businesses or organisations having to register for anecdotal or ad hoc activities. As discussed above, it seems necessary to provide for more precise thresholds for these particular cases. At a minimum, the Quebec legislator could also consider providing that the status of lobbyist is assessed by considering all of the activities of the legal person concerned, and not those of the natural persons that make up the legal person, in order to determine more relevant thresholds triggering an obligation to register. Such provisions apply, for example, in British Columbia (Box 1.17).
In British Columbia, new provisions that came into force in 2020 require all organisations (including corporations) employing in-house lobbyists to register in the Lobbyists Registry. The only exception to this rule is for organisations with fewer than six employees that lobby on a limited basis.
However, the law provides that an individual is not an in-house lobbyist if he or she meets a threefold in-house criterion, including the threshold concept applied at the entity level:
1. The individual is an employee, director or officer of an organization that has fewer than six employees.
2. The individual's lobbying - alone or with other individuals in the organisation - on behalf of the organisation or an affiliate of the organisation, totals less than 50 hours in the preceding 12-month period.
3. The main purpose of the organisation is to represent the interests of its members, or to promote or oppose any issue, and the lobbying carried out by the individual is for that purpose.
For example, if an organisation has fewer than six employees, but one or more individuals, alone or collectively, have spent 50 hours lobbying or preparing to lobby in the previous 12 months, the organisation's lobbying activities must be registered.
Source: Office of the Registrar of Lobbyists of British Columbia, Guidance for organizations, https://www.lobbyistsregistrar.bc.ca/handlers/DocumentHandler.ashx?DocumentID=343
The Act could include provisions on the participation of lobbyists in certain advisory groups
An advisory or expert group refers to any committee, council, commission, congress, panel, working group, similar group or sub-group belonging to it, providing advice, expertise and recommendations to governments. Such groups are composed of members of the public and private sectors as well as representatives of civil society, and may be established by the executive, legislative or judicial branches of government. Individual OECD governments rely heavily on such groups to design and implement public policy. In the context of the COVID-19 crisis, many governments established specially tailored institutional arrangements to provide scientific advice and technical expertise to guide their emergency response and relief plans.
Advisory groups have the potential to strengthen evidence-based decision-making. However, without sufficient transparency and safeguards against conflicts of interest, these bodies face concerns that can undermine the legitimacy of their advice. Indeed, private sector representatives participating in these groups have direct access to policy-making processes without being considered as external lobbyists and may (unconsciously or not) favour the interests of their company/industry, thus contributing to the amplification of conflicts of interest.
In Quebec, consultation with persons having expertise in a particular field is often sought through advisory committees that may be composed of both public office holders and persons representing, among others, businesses, associations or other non-profit groups. In a 2009 opinion, the Quebec Commissioner of Lobbying considered that the exception in section 5 of the Act, which provides that the Act does not apply to representations made in response to a written request from a public office holder, also applies to communications made in the context of the work of an advisory committee established by a public authority, even if the purpose of these communications is to influence the decision-making of the institution in question (Lobbyisme Québec, 2009[38]).
However, in view of the risks, the Act could include a separate exception for advisory functions performed by certain lobbyists to government, specifying certain conditions for the application of this exception. In Ireland, for example, working groups involving members of the private sector must comply with a Transparency Code in order to be exempt from the requirement to register for lobbying (Box 1.18).
In Ireland, a working group set up by a Minister or public service body, which consists of at least one designated public official (DPO) and at least one person from outside the public service, and which reviews, assesses or analyses any issue of public policy with a view to reporting to the Minister of the Government or the public service body on it, must comply with a Transparency Code.
The following information must be published on the public body’s website upon its establishment:
Names of Chairperson and Members, together with details of their employing organisation (if they are representing a group of stakeholders, this should be stated).
Whether any non-public servant members were previously designated public officials.
In addition, the agenda and minutes of each meeting must be published and updated at least every four months.
The Chairperson must include with the final or annual report of the Group a statement confirming its compliance with the Transparency Code.
If the requirements of the Code are not adhered to, interactions within the group are considered as a lobbying activity under the Regulation of Lobbying Act 2015.
Source: (OECD, 2021[1]).
The Act could also include additional provisions on other communications made by a person who participates in the work of an advisory committee, to the extent that they qualify as lobbying activities within the meaning of the Act. In 2017, the Quebec Commissioner of Lobbying proposed that such communications remain subject to its application:
If they are made outside the framework of the committee's work.
If they concern a subject that is outside the committee's mandate or the agenda of a meeting.
If they are intended to influence the object or scope of the committee's mandate or the content of an agenda and no formal and explicit request to that effect has been made by a public office holder.
In addition, and although not directly related to transparency issues, a balanced representation of interests (if applicable) between private sector and public service representatives and the collection of expertise from different sectors would help to ensure equity and diversity in the advisory group. For example, Norway's Ministry of Local Government and Modernisation has published guidelines on the use of independent advisory groups, which states that the composition of such groups should reflect different interests, experiences and views (Ministère de l'administration locale et de la modernisation de la Norvège, 2019[39]). There is also a need to adopt rules of procedure for such groups, including conditions for appointment, standards of conduct and, in particular, procedures for preventing and managing conflicts of interest. These measures would provide reasonable protection against interest groups undertaking to extract or provide biased advice to government.
In order to adapt the legislative and regulatory framework to the socio-political and administrative context of Quebec, and to be as consistent as possible with international best practices, the OECD recommends that Quebec considers the following proposals.
Adapting the scope of the Act
The scope of public decisions covered could include all stages of the legislative, regulatory, strategic or administrative policy development cycle.
The Act could allow for greater adaptation of the disclosure requirements for lobbying activities for certain public decisions without a general scope and according to the institutional levels concerned.
The Act could take into account the advances in transparency and integrity allowed by the Act respecting contracting by public bodies.
To strengthen the coherence of the scope of application, the Act could also cover the education network.
The Act could cover all lobbying activities that are carried out with any elected official, officer or staff member of the public institutions covered by the scope.
Provide a robust definition of the terms "lobbying" and "lobbyist
The Act could make transparent the activities of all interest groups that engage in lobbying activities without providing for exceptions depending on the nature of the organisations.
The Act could, however, provide for some specific exemptions that take into account the diversity of non-profit organisations, their capacities and resources.
The criterion of initiative for a lobbying activity is not very relevant and could be removed.
The Act could require the disclosure of the sources of funding for research, think tanks and organisations.
The minimum threshold of lobbying activities is confusing and could be removed or assessed at the entity level.
The Act could include provisions on the participation of lobbyists in certain advisory group work.
References
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[1] OECD (2021), Lobbying in the 21st Century: Transparency, Integrity and Access, OECD Publishing, Paris, https://doi.org/10.1787/c6d8eff8-en.
[22] OECD (2020), Integrity Review of Public Procurement in Quebec, Canada: A Strategic Approach to Corruption Risks, OECD Publishing, Paris, https://doi.org/10.1787/g2g95000-en.
[23] OECD (2017), Integrity Framework for Public Investment, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/9789264251762-en.
[21] OECD (2017), OECD Recommendation of the Council on Public Integrity, http://www.oecd.org/gov/ethics/OECD-Recommendation-Public-Integrity.pdf.
[2] OECD (2017), Preventing Policy Capture: Integrity in Public Decision Making, OECD Public Governance Reviews, Éditions OCDE, Paris, https://doi.org/10.1787/9789264065239-en.
[13] OECD (2017), Recommendation of the Council on Open Government, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438.
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[6] OECD (2010), OECD Recommendation on Principles for Transparency and Integrity in Lobbying, https://www.oecd.org/corruption/ethics/Lobbying-Brochure.pdf.
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[37] Office of the Commissioner of Lobbying of Canada (2020), Annual report 2019-20, https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2019-20/.
[33] Office of the Commissioner of Lobbying of Canada (2017), Applicability of the Lobbying Act to Grass-roots Communications, https://lobbycanada.gc.ca/en/rules/the-lobbying-act/advice-and-interpretation-lobbying-act/applicability-of-the-lobbying-act-to-grass-roots-communications/.
[14] Ouimet, M., É. Montigny and S. Jacob (2019), “Les pratiques d’encadrement du lobbyisme : Revue systématique de la portée et étude Delphi”, Département de science politique, Université Laval. Cahier de Recherche Électorale et Parlementaire, Vol. Numéro 18, http://www.cms.fss.ulaval.ca/recherche/upload/chaire_democratie/fichiers/120017_cahier_de_recherche_chaire_democratie_no182.pdf.
[31] Principles for Responsible Investment (2018), Converging on Climate Lobbying. Aligning Corporate Practice Within Investor Expectations, https://www.unpri.org/Uploads/g/v/q/PRI_Converging_on_climate_lobbying.pdf.
[16] Sunlight Foundation (2013), The Landscape of Municipal Lobbying Data, https://sunlightfoundation.com/2013/04/04/the-landscape-of-municipal-lobbying-data/.
[30] Tchotourian, I. (2019), “Entreprises à mission sociétale : regard de juristes sur une institutionnalisation de la RSE”, Vie & sciences de l’entreprise, Vol. 2/208, pp. pp. . 72-93, https://www.cairn.info/revue-vie-et-sciences-de-l-entreprise-2019-2-page-72.htm.
Notes
← 1. In line with the OECD Recommendation on Principles for Transparency and Integrity in Lobbying, the report uses the term "lobbying". “Lobbying” and the French term "lobbyisme", more commonly used in Quebec, are considered by the OECD to be equivalent.
← 2. Since February 17, 2022, "Lobbyisme Québec" designates in French the organisation placed under the authority of the Commissioner of Lobbying, a person designated by the National Assembly, whose appointment must be approved by two-thirds of the members of the National Assembly. The organisation was previously known in French as “Commissaire au Lobbyisme du Québec”. In English, “Commissioner of Lobbying” is used to designate both the organisation and the designated person.