This chapter reviews the Quebec integrity framework from the perspective of interactions between public officials (public office holders) and lobbyists. On the one hand, the integrity framework for public officials offers the opportunity to complement the Lobbying Transparency and Ethics Act. To this end, the chapter provides recommendations on how the integrity framework could be clarified and strengthened with regard to the obligations of public officials. In addition, the chapter discusses the Lobbyists' Code of Conduct as a starting point for promoting responsible engagement.
The Regulation of Lobbying in Quebec, Canada
Strengthening a Culture of Transparency and Integrity
OECD Public Governance Reviews
3. Promote a culture of integrity in the interactions between public officials and lobbyists in Quebec
Abstract
Introduction
Reforming the legislative framework (Chapter 1) and improving transparency to allow for better public scrutiny of the policy-making process (Chapter 2) are key elements in regulating lobbying and addressing the risks of undue influence and inequity in the power to influence.
Beyond these reforms, it is imperative to promote a culture of integrity in the interactions between public officials and lobbyists more broadly, and to have a strategic view of the system. Indeed, laws and regulations will always be incomplete and will never be able to cover all the grey areas and practices of influence, however well they are designed. Hence the importance of seeing the interactions between interest representatives and public officials also as a field of applied ethics, where common sense and the internal ethical compass must play a role on both sides.
The OECD Recommendation on Principles for Transparency and Integrity in Lobbying states that countries should foster a culture of integrity in public organisations and decision making by providing clear rules and guidelines of conduct for public officials (Principle 7 of the Recommendation). The Recommendation also states lobbyists should comply with standards of professionalism and transparency; they share responsibility for fostering a culture of transparency and integrity in lobbying (Principle 8 of the Recommendation).
This requires, on the one hand, the establishment of clear rules and guidelines of conduct for public officials. On the other hand, lobbyists themselves can help to ensure the integrity of their engagement with public officials through self-regulatory mechanisms, such as a code of conduct and a monitoring and enforcement system.
Strengthening the integrity framework for public officials
The OECD Recommendation calls on countries to foster a culture of integrity in public bodies and in public decision-making by establishing clear rules and guidelines governing the behaviour of public officials. Specifically, the Recommendation states that countries should provide principles, rules, standards and procedures that give public officials clear directions on how they are permitted to engage with lobbyists. Public officials should conduct their communication with lobbyists in line with relevant rules, standards and guidelines in a way that bears the closest public scrutiny. In particular, they should cast no doubt on their impartiality to promote the public interest, share only authorised information and not misuse ‘confidential information’, disclose relevant private interests and avoid conflict of interest. Decision makers should also set an example by their personal conduct in their relationship with lobbyists.
Quebec could therefore strengthen the current integrity framework by considering the following measures that will be detailed in the following sections:
Clarify and, if necessary, establish or strengthen specific integrity standards for public officials and the behaviour expected vis-à-vis lobbying activities.
Intensify awareness raising and training of public officials on the standards, challenges and risks of lobbying, in particular by including the topic more explicitly in ethics training, especially at the municipal level.
Give ethics advisors the responsibility and ability to respond to public officials' doubts about the law and the risks of lobbying practices.
The following recommendations will also highlight the importance of coordination between the Quebec Commissioner of Lobbying, the Treasury Board Secretariat (TBS), the Ethics Commissioner of the National Assembly and the Quebec Municipal Commission. Although these bodies are already in contact and share information, the institutionalisation of a regular coordination mechanism between them could contribute to a more strategic vision of the challenges related to lobbying and ensure lasting constructive cooperation and coordination, as well as allow for the development of joint initiatives and make the link with other initiatives aimed at improving transparency and integrity more explicit, such as, for example, Quebec's 2021-2023 Action Plan for Open Government.
Clarify and, if necessary, establish or strengthen specific integrity standards for public officials and the behaviour expected from lobbying activities
In an age of social media and information overload, and where back and forth between the private and public sectors is commonplace, public officials are constantly exposed to public scrutiny and criticism, risking the collapse of their reputations every time an intervention is misperceived or misinterpreted. Public officials therefore need more than ever an integrity framework adapted to the specific risks of lobbying and other influence practices. While rules on conflict of interest management, gifts, entertainment and meals are strong, standards, guidelines and capacity building specific to lobbying and other influence practices can be improved.
Despite the guidance of the OECD Recommendation, only a few countries have developed specific standards for public officials regarding their interactions with lobbyists (Figure 3.1). At the federal level, Canada is among the countries that have included standards in this regard, notably in the Prime Minister's Guide to Open and Accountable Government for Ministers and Ministers of State (Premier ministre du Canada, 2015[1]). The Guide clearly links fundraising activities and dealings with lobbyists with the obligation of Ministers and Parliamentary Secretaries to avoid any conflict of interest, any appearance of conflict of interest and any situation that could give rise to a conflict of interest (Annex B of the Guide, see also Box 3.1 below). Also, the Conflict of Interest Code for Members of the House of Commons and the Conflict of Interest and Ethics Code for Senators state that Members of the House of Commons and Senators may not use their office to influence the decision of another person in a way that favours his or her own personal interests or those of a member of his or her family or, in an improper manner, those of any other person or entity.
Figure 3.1. More standards are needed for public officials on their interactions with lobbyists
Source: (OECD, 2021[2]).
Depending on the type of document in which the standards are included, standards for public officials and their interactions with lobbyists may include, for example (OECD, 2021[2]):
The duty to treat lobbyists equally by granting them fair and equal access.
The obligation to refuse meetings with unregistered lobbyists.
The obligation to report violations to the competent authorities.
The obligation to register their meetings with lobbyists (see Chapter 2 on public agendas).
In Quebec, the Lobbying Transparency and Ethics Act was adopted to provide a framework for lobbying activities and make them more transparent. This Act therefore applies mainly to lobbyists, not to public officials. Nevertheless, it is important to clarify the obligations and expectations regarding the behaviour of public officials who may be targeted by influence initiatives.
In addition, the Regulation respecting ethics and discipline in the public service and the Declaration of values of the Quebec public administration consolidate the rules of ethics and reaffirm the fundamental values of ethics. For members of the National Assembly, the Code of Ethics and Conduct applies; it also extends to ministers and political staff. For municipalities, there is the Municipal Ethics and Good Conduct Act. However, these ethical guidelines do not contain explicit references to the expected and desired conduct of public officials with regard to lobbying. Only the Code of Ethics and Conduct for Members of the National Assembly stipulates that a Member may not engage in lobbying activities within the meaning of the Lobbying Transparency and Ethics Act.
The Quebec Commissioner of Lobbying, in coordination with the Treasury Board Secretariat, the Ethics Commissioner of the National Assembly and the Quebec Municipal Commission, could develop awareness-raising material such as brochures or guides for public officials on standards and good practices. Annex B of the Prime Minister's Guide to Open and Accountable Government for Ministers and Ministers of State of the Canadian federal government could serve as inspiration and a basis for developing this kind of guidance (Box 3.1).
Box 3.1. Fundraising and Dealing with Lobbyists: Best Practices for Ministers and Parliamentary Secretaries in the Prime Minister's Guide to Open and Accountable Government (excerpt)
Appendix B of the Canadian federal government's Guide to Open and Accountable Government summarises the best practices that Ministers and Parliamentary Secretaries should follow to maintain appropriate boundaries between their official duties and political fundraising activities. It is important that Ministers and Parliamentary Secretaries familiarize themselves with these practices and apply them in all appropriate circumstances. In addition, they must ensure that their staffs are well acquainted with the practices and that adequate processes are in place in their offices to ensure compliance.
The practices complement, and do not replace, other rules that Ministers and Parliamentary Secretaries must observe, including the Conflict of Interest Act, the Conflict of Interest Code for Members of the House of Commons and the Lobbying Act. Ministers and Parliamentary Secretaries should communicate with the Office of the Conflict of Interest and Ethics Commissioner if they have any questions or concerns relating to their obligations under the Conflict of Interest Act or the Conflict of Interest Code for Members of the House of Commons, and should familiarize themselves with the Commissioner’s Guidelines on Fundraising and the Conflict of Interest Act.
General principles
Ministers and Parliamentary Secretaries must ensure that political fundraising activities or considerations do not affect, or appear to affect, the exercise of their official duties or the access of individuals or organizations to government.
There should be no preferential access to government, or appearance of preferential access, accorded to individuals or organizations because they have made financial contributions to politicians and political parties.
There should be no singling out, or appearance of singling out, of individuals or organizations as targets of political fundraising because they have official dealings with Ministers and Parliamentary Secretaries, or their staff or departments.
Departmental Stakeholders
In this document, “departmental stakeholders” includes:
Lobbyists registered to lobby Ministers and Parliamentary Secretaries, their staff or their departments;
Employees of lobbying firms retained to lobby Ministers, Parliamentary Secretaries, their staff or their departments;
Employees of corporations and organizations whose employees are registered to lobby Ministers, Parliamentary Secretaries, their staff or their departments; and
Individuals employed in, contracted by, or who otherwise represent corporations and organizations that have current or anticipated official dealings with Ministers, Parliamentary Secretaries, their staff or their departments.
Specific best practices
In order to ensure that there is no differential treatment or appearance of differential treatment for individuals, corporations or organizations because of their financial support of politicians or political parties, Ministers and Parliamentary Secretaries should adopt the following best practices:
Ministers and Parliamentary Secretaries should not seek to have departmental stakeholders included on fundraising or campaign teams or on the boards of electoral district associations.
Ministers and Parliamentary Secretaries should establish and maintain appropriate safeguards to ensure that lists and contact or other identifying information of departmental stakeholders are not provided to those engaged in fundraising activities.
Ministers and Parliamentary Secretaries should ensure that government facilities and equipment, including ministerial or departmental letterhead, are not used for or in connection with fundraising activities.
Ministers and Parliamentary Secretaries should ensure that the solicitation of political contributions on their behalf does not target: departmental stakeholders, or other lobbyists and employees of lobbying firms (note that this is not intended to restrict general fundraising appeals made to a broad group of supporters or potential supporters).
Ministers, Parliamentary Secretaries and their staff should not discuss departmental business at any fundraising event, and should refer any person who wishes to discuss departmental business to make an appointment with the Minister’s office or department as appropriate.
Ministers and Parliamentary Secretaries should ensure that fundraising communications issued on their behalf do not suggest any connection between fundraising and official government business.
Ministers, Parliamentary Secretaries and their staff should exercise caution in meeting with consultant lobbyists, and should give particular consideration to whether it is appropriate to meet a consultant lobbyist in the absence of the lobbyist’s client.
In addition, the Quebec legislator could consider strengthening the duties and obligations regarding the behaviour expected of public officials. In particular, Quebec could consider clarifying the responsibility of public officials to enforce the Lobbying Transparency and Ethics Act and strengthen the regulation of the "revolving door".
Clarify the responsibility of public officials to enforce the Lobbying Transparency and Ethics Act
At present, the Lobbying Transparency and Ethics Act does not clearly assign responsibilities to the State, public institutions and public office holders with regard to the transparency of lobbying activities. This responsibility is mentioned only in passing in section 1 by the affirmation of the right of citizens to be informed of influence communications made to public institutions. In particular, the Act does not clearly confer a responsibility on public officials to ensure that those who attempt to influence them are registered in the Lobbyists Registry.
The Quebec Commissioner of Lobbying’s Diagnostic already highlighted the reluctance and criticism of certain elected officials and staff of public institutions with respect to the Act, going so far as to reject any form of responsibility that might fall to them to ensure compliance with the Act (Lobbyisme Québec, 2019[3]). The consultations conducted by the Commissioner of Lobbying in 2018 revealed that many elected officials and civil servants still do not feel responsible for ensuring compliance with the Act. The consultations conducted by the OECD confirm this feeling. Moreover, several parliamentary and municipal elected officials interviewed disagree with the idea that the Act gives them a formal responsibility to ensure compliance. While some of them fear that these obligations will hamper citizens' access to elected officials, others say they fear the multiplication of legal requirements and social pressures, for example on the position of MP or mayor.
While public officials effectively cannot and should not play the role of monitoring the application of the Act in general, it seems conceivable to require a degree of responsibility on the part of public officials to ensure that those who contact them are indeed registered as lobbyists or are covered by exemptions (Chapter 1). This due diligence on the part of public officials should be clearly specified in the expected standards of conduct and of course requires enhanced awareness raising, training and guidance for public officials. For example, EU Commissioners and members of their cabinets must refuse to meet with non-registered lobbyists. In Slovenia, public officials can only agree to enter into contact with a lobbyist after verifying that the lobbyist is registered.
In this regard, the Treasury Board Secretariat suggests in its various directives on contract management that departments and public bodies obtain a declaration from the contractor that he or she complies with the provisions of the Lobbying Transparency and Ethics Act before awarding any contract. In addition, several municipalities, ministries or public agencies have adopted various policies in recent years requiring their staff members to ensure that the lobbyists they meet are duly registered in the Lobbyists Registry.
At a minimum, the various codes of conduct applicable to public office holders could, for example, include guidelines and remind public officials of the need to be vigilant about influence communications. In the Netherlands, for example, the Code of Conduct on Integrity in Central Government reminds public officials of the need to take into account the indirect ways in which they can be influenced by special interest groups, such as through research funding (Box 3.2).
Box 3.2. Netherlands: the Code of Conduct on Integrity in Central Government reminds public officials to pay attention to indirect influence
“You may have to deal with lobbyists in your work. These are advocates who try to influence decision making to their advantage. That is allowed. But are you always aware of that? And how do you deal with it?
Make sure you can do your work transparently and independently. Be aware of the interests of lobbyists and of the different possibilities of influence. This can be done very directly (for example by a visit or invitation), but also more indirectly (for example by co-financing research that influences policy).
Consult with your colleagues or supervisor where these situations may be present in your work.
Sometimes it is in the public interest to avoid contacts with lobbyists”.
Source: Extracts from the Dutch Code of Conduct on Integrity in Central Government, https://zoek.officielebekendmakingen.nl/stcrt-2019-71141.html.
Strengthening the rules before, during and after a public mandate
Revolving doors occur when public officials migrate to areas of activity for which they were responsible, or when professionals from these areas become public office holders. Often these changes are accompanied by the possibility of exploiting the networks of influence of these people, including access to privileged information or individuals, in the case of 'outgoing' public officials (Yates, 2018[4]). These former public officials can therefore be coveted as future lobbyists and monetise their networks and information on the public sector. Yet, empirical analysis shows that public officials coming from the private sector can lead to similar problems (Faccio, 2006[5]) .
In Quebec, the Act does not formally prohibit elected municipal officials and employees of public institutions from also being lobbyists during or after their public mandate. While the Act includes formal prohibitions for ministers, members of the executive council and their close advisors when they leave public office (sections 28 and 29 of the Act), only the Code of Ethics and Conduct for Members of the National Assembly goes further by covering lobbying activities carried out while in public office. This code stipulates that a Member may not engage in lobbying activities within the meaning of the Lobbying Transparency and Ethics Act. The Commissioner calls for a the establishment of disclosure and confidentiality obligations, an ethical framework and specific prohibitions applicable to lobbying activities undertaken by elected officials or officers designated by public institutions during and after the end of their term or duties for the public institutions with which they had or maintained connections or official relations (Principle 15 of the Statement of Principles). These rules generally consist of a cooling-off period during which a former public official may not engage in lobbying activities with bodies where he or she previously held a job or office or with which he or she had privileged contacts. A waiver power, granted to the Commissioner, would aim to meet this need for flexibility in exceptional circumstances. Such a power already exists in many jurisdictions.
Canadian federal law, which is stricter than Quebec law in this regard, imposes a five-year prohibition on lobbying activities by designated public office holders after they leave office. These rules are, however, limited to designated office holders within the meaning of the Act, i.e. those who hold the highest responsibilities in public institutions.
Second, the Commissioner also recommended that the framework must also allow the Commissioner of lobbying to grant a full or partial exemption from such obligations, rules or prohibitions when doing so is not contrary to the spirit of the Act (Principle 15 of the Statement of Principles). Such measures exist, for example, at the European Union level (Box 3.3).
Box 3.3. Post-employment rules at the EU level
Members of the European Commission
The Code of Conduct for Members of the European Commission establishes a two-year “scrutiny period” (three years for the former Commission President) during which Commissioners must notify the professional activities in which they intend to engage during this period. If the intended activity is linked to the Commissioner's former portfolio, the Commission must first consult an Independent Ethical Committee before approving the activities.
European civil service
Members of the EU civil service leaving their position and beginning a new job within two years must obtain authorisation from the relevant institution. If the activity is related to work carried out during their last three years in service and might conflict with the legitimate interests of the institution, the institution may forbid it or approve it subject to conditions.
Senior officials (Directors General and Directors) are prohibited, in the twelve months after leaving service, from engaging in lobbying activities targeting their former institutions on matters for which they were responsible during their last three years in service.
Source: Code of Conduct for Members of the European Union; Code of Conduct for Members of the European Parliament; Staff regulations for Members of the European civil service.
As regards the other direction of the revolving doors, rules requiring former lobbyists who have become public office holders not to deal in their new positions with issues similar to those they dealt with as lobbyists are rather rare. However, some countries and states in the United States impose such a time limit on the election, appointment or hiring of an interest representative as a public office holder. In the United States, Maryland law, as an exception, also imposes a one-year ban on any lobbyist becoming a public office holder before he or she can act on matters on which he or she has previously worked as a lobbyist. In France, restrictions also apply before public employment (Box 3.4).
Box 3.4. Post and pre-public employment restrictions in France
Post-employment restrictions
For a period of three years, former ministers, presidents of local executives and members of an independent administrative authority must refer to the HATVP to examine whether the new private activities they plan to pursue are compatible with their former functions.
Public bodies also control the transition of former public servants to the private sector, which is carried out by the hierarchical superior of the civil servant concerned. The hierarchical superior may refer individual cases to the HATVP in case of doubt. Referral to the HATVP is mandatory for certain senior civil servants.
Pre-employment restrictions
France, article 432 of the Penal Code imposes certain restrictions on private-sector employees hired to fill a post in a public administration. For a period of three years following the termination of their functions in their previous employment, they must not be entrusted with the supervision or control of a private undertaking, with the conclusion of contracts of any kind with a private undertaking or with giving an opinion on such contracts. They are also not allowed to propose decisions relating to the operations carried out by a private undertaking or formulate opinions on such decisions. They must not receive advice from or any capital in one of these undertakings. Any breach to this provision is punished by two years' imprisonment and a fine of EUR 30 000.
In 2020, the HATVP was entrusted with a new 'pre-appointment' check for certain senior positions. A preventive check is carried out before an appointment to certain high-level positions (notably members of a ministerial cabinet, aides to the President of the Republic, directors of central administration), if a person has held a position in the private sector in the three years preceding the appointment.
Source: (OECD, 2021[2])
Increase awareness and training of public officials on the standards, challenges and risks of lobbying, in particular by including the subject more explicitly in ethics training, especially at municipal level
Beyond clarifying and establishing standards of conduct, responsibilities and obligations, it is essential to ensure that these standards are effectively translated into the daily practice of public officials. Laws and codes of conduct or ethics are the necessary basis, but are not sufficient to achieve this goal. In addition, the standards should be communicated in a simple and clear manner and public officials need to understand the rationale behind the regulations, be aware of the risks and know how to apply the guidelines in their daily work.
In Quebec, despite the fact that the obligation to comply with the law rests with lobbyists, the Commissioner's training and awareness activities are also directed at the public sector, although little training is conducted at the municipal level. At the same time, the increased co-responsibility recommended in this report also requires that public officials be adequately prepared and accompanied. Moreover, the Commissioner provides information material and training guides on its website for parliamentary, government and municipal office holders.
Nevertheless, to date, despite the material made available by the Commissioner and the fact that the subject of lobbying is part of the basic ethics training, the OECD consultations established that this aspect could and certainly should be strengthened. Indeed, the rules on lobbying and their relation to the integrity framework are not well known. Indeed, the officials consulted by the OECD perceive a certain level of ignorance within the public administration about lobbying, its concept, its practices and the ethical implications that interactions between the public sector and lobbyists bring with them. In a 2018 survey of elected officials and staff of public institutions, only one in two respondents (52%) considered themselves sufficiently informed about the rules governing lobbying in their workplace (Lobbyisme Québec, 2019[3]). Also, there is reason to assume that in general, and similar to citizens' perceptions, lobbying is perceived by officials as an activity with a negative connotation.
This need for training is particularly visible at the municipal level, where the density and continuity of relations between citizens, local actors and public officials create grey areas and where the heterogeneity of the local and municipal environment makes the challenges perhaps even greater. Indeed, in consultations conducted by the OECD, municipal representatives expressed a desire for more training and guidance on the subject of lobbying.
In its Statement of Principles, the Commissioner recommends introducing a training regime for elected officials and designated officers of public institutions (Principle 31 of the Statement of Principles). Increased coordination between the Quebec Commissioner of Lobbying, the Treasury Board Secretariat, the Ethics Commissioner of the National Assembly and the Quebec Municipal Commission in the area of lobbying and integrity could allow for the strengthening of awareness and training activities on the integrity standards applicable to public officials in the specific context of lobbying activities. In this regard, the Commissioner has proposed on several occasions to integrate specific terms and conditions into the laws aimed at municipalities, by tabling briefs in committees, in particular to ensure that the framework remains concentrated in the Act and consistent across all levels (Lobbyisme Québec, 2009[6]; 2010[7]; 2021[8]). In Ireland, for example, the Public Service Standards Commission provides tailored guidance to various categories of public officials to promote awareness and understanding is incorporated into the Lobbying Act (Box 3.5).
The Quebec Commissioner of Lobbying recommends to introduce an educational mission specifically for the Commissioner of lobbying and the obligation to offer public institutions, interest representatives and citizens a program and tools for training and education on the regulatory framework established by the Act (Principle 30 of the Statement of Principles). In particular, Quebec could therefore increase its efforts to raise awareness and train public officials. This may require expanding the Quebec Commissioner of Lobbying’s mandate to include education and communication to public officials, while ensuring close coordination with other relevant bodies to maximise synergies and align messages.
Awareness raising: It is important that public officials are aware of the rationale behind the legal provisions and the conduct expected of them. Knowing why it is important to promote transparency and integrity in relations with interest representatives, knowing the risks associated with it, as well as knowing how to recognise the different direct and indirect practices of influence is essential to bring about a change in conduct. In addition to providing information material as recommended above, the Quebec Commissioner of Lobbying, in coordination with the Treasury Board Secretariat, the Ethics Commissioner of the National Assembly and the Quebec Municipal Commission, could initiate campaigns to communicate more actively with public officials. Increased collaboration could also be implemented with representative organisations such as the Union des municipalités du Québec (UMQ) or the Fédération québécoise des municipalités (FQM), which offer training programmes addressing the issue of lobbying for elected municipal officials.
Training: Despite its importance, training specifically on integrity in interactions with lobbyists is rare. Among legislators surveyed by the OECD in 38 jurisdictions, 64% said they had not received training or information on how to interact with lobbyists (OECD, 2021[1]). Most of the countries surveyed offer training and awareness-raising activities on specific issues, such as integrity in interactions with third parties on an ad hoc basis. The tailor-made training by videoconference for public departments and agencies proposed by the Commissioner in Quebec is certainly a good practice to pursue. In addition, Quebec could consider including the relationship with interest representatives more intensively in the ethics training offered at the level of the public service, the National Assembly or, in the case of municipalities, by the Union des municipalités du Québec (UMC) or the Fédération québécoise des municipalités (FQM). Case studies on lobbying, based on real cases, could enable public officials to understand the concepts, risks and practices so that they can make better decisions to protect the public interest and themselves. In addition, training could in particular address the new challenges of indirect lobbying and help public officials to assess the reliability of information received. The training guides for parliamentary, governmental and municipal office holders provided by the Commissioner of Lobbying could be updated and inform training.
Box 3.5. Tailor-made advice for public officials in Ireland
In Ireland, section 17 of the Lobbying Act states that "the Commission may issue guidance on the operation of this Act and may from time to time revise or republish it", and "may make available specific information to promote awareness and understanding of this Act".
The website www.lobbying.ie contains specific guidance for public officials covered by the provisions of the Act ("designated public officials"), including:
General guidance for public officials to ensure that they understand how the system works, how they fit into it and how they can help support the implementation of the legislation.
Advice to members of the Dáil, members of the Seanad and members of the European Parliament representing the Irish Government.
Advice to members of local authorities.
Advice on the reflection period.
Build the capacity of ethical advisors to prepare them to respond to questions from public officials about the Act and the risks associated with lobbying practices
Standards and norms of conduct need to be communicated simply and clearly, and the government needs to invest in awareness-raising campaigns and training to build the capacity necessary for effective understanding and application of the law. In addition, international experience with ethical enforcement shows that it is essential to provide a known and easily accessible institutional support function for public official (OECD, 2020[9]; OECD, 2009[10]). They need to have a trusted person or unit to turn to in case of specific doubt.
This advice and consultation is provided by dedicated integrity committees, units or staff. The integrity advisory function can take different forms: within a central government body, through an independent or semi-independent specialised body; or through integrity units or advisors within ministries or the legislature or judiciary. Their role is usually to provide advice on resolving ethical dilemmas and to help public officials understand public ethics rules and principles. These approaches generally cover standards of conduct and public service values, but they could still improve understanding and knowledge of the risks associated with lobbying and the behaviour expected of public officials. In those countries that have developed specific integrity standards for lobbying, the majority also provide advice on how to apply the regulations and guidelines. Assistance may be available online, or by calling a specific hotline or emailing a dedicated contact.
At the level of the legislature, the majority of countries responding to the OECD survey reported having an integrity function within their organisation or a specialised institution to guide their interactions with lobbyists (OECD, 2021[2]). In France, for example, the High Authority for the Transparency of Public Life (HATVP) provides individual confidential advice on request to the highest elected and non-elected public officials within its scope, and provides guidance and support to their institution when requested by one of these public officials, within 30 days of receiving the request (OECD, 2020[9]).
In Quebec, the Network of ethical advisors (Réseau des répondants en éthique de la fonction publique Québécoise), set up in 2002 by the Treasury Board Secretariat, aims to support the work of ethics officers in their respective departments and agencies. Each department appoints at least one ethics officer/advisor. At the municipal level, the Quebec Municipal Commission publishes a list of municipal ethics advisors who can answer any questions elected officials may have about their codes of ethics. For members of the National Assembly, the Ethics Commissioner is an independent institution responsible for ensuring compliance with the ethical principles and application of the rules of conduct that must guide the conduct of members of the Assembly and their staff.
Although a detailed analysis of this ethical framework in the Québec public service is not the subject of this study, the consultations conducted by the OECD revealed a certain disparity between departments in terms of the resources invested in ethics. Also, the function of ethics officer is normally added to the functions already under the responsibility of the public official, thus limiting the time that the public official can dedicate to the promotion of public integrity within his or her organisation.
The OECD consultations also showed that at present there is a lack of clarity among civil servants about where to seek advice regarding interaction with interest representatives. The ethics officers consulted responded that they are already sometimes consulted on the subject; if in doubt, they refer the request to the Commissioner of Lobbying. A good practice in Quebec, which could inspire other organisations, is found in the Ministry of Transport, which has developed an internal directive on lobbying, has established mandatory training and has included lobbying in its risk management and integrity plans. In addition, they mentor civil servants who are approached by lobbyists.
Once again, the Quebec Commissioner of Lobbying, the Treasury Board Secretariat, the Ethics Commissioner of the National Assembly and the Quebec Municipal Commissioner could combine their efforts and align their messages in order to prepare ethics officers to respond to doubts related to lobbying, to guide and advise them and, if necessary, to coach or even accompany public servants during their interactions with interest representatives. This recommendation is partly consistent with that made by the Quebec Commissioner of Lobbying in its Statement of Principles, where it is recommended to designate the primary officer of any public institution or any person within that institution to whom the officer will delegate the responsibility as reference person for the application of and compliance with the Act within the institution (Principle 14 of the Statement of Principles). This responsibility could be given to the Ethics Officer. This person would be responsible for ensuring that the objectives of the law are met and that it is respected within the institution.
As a second line of defence, the Quebec Commissioner of Lobbying, the Treasury Board Secretariat, the Ethics Commissioner of the National Assembly and the Quebec Municipal Commissioner should continue to be available to support these respondents and ethics advisors in case of doubt or to arbitrate grey areas.
Promoting responsible engagement of lobbyists
Companies and organisations are also increasingly exposed to public scrutiny. Lobbyists acting on their behalf therefore need a clear integrity framework when intervening in the public policy process. The OECD Recommendation recalls that governments and legislators have the primary responsibility for establishing clear standards of conduct for public officials who are lobbied. However, lobbyists and their clients, as the ordering party, also bear an obligation to ensure that they avoid exercising illicit influence and comply with professional standards in their relations with public officials, with other lobbyists and their clients, and with the public (Principle 8 of the Recommendation). In addition, to maintain trust in public decision making, in-house and consultant lobbyists should also promote principles of good governance. In particular, they should conduct their contact with public officials with integrity and honesty, provide reliable and accurate information, and avoid conflict of interest in relation to both public officials and the clients they represent, for example by not representing conflicting or competing interests (Principle 8 of the Recommendation).
At the OECD level, codes of conduct instituted at the level of companies, organisations or their groupings, continue to be the main tool to support lobbyists' integrity, but problems of consistency and interpretation may arise where lobbyists are subject to more than one code. It is therefore essential to:
Improve the standards and guidelines associated with the range of actions that can influence public policy, to ensure that lobbyists’ engagement does not raise issues of integrity and inclusiveness in public policy processes.
Introduce more detailed integrity standards to specify the due diligence requirements that companies, organisations and the associations in which they participate, must meet to ensure alignment between with public affairs and sustainability agendas.
Quebec could strengthen the ethical framework for interest representatives
In Quebec, the Lobbying Transparency and Ethics Act is accompanied by a Code of Conduct for Lobbyists that establishes standards of conduct applicable to lobbyists in order to ensure the proper exercise of lobbying activities and to promote transparency. Of the 38 jurisdictions that responded to the OECD 2020 Survey on Lobbying, 17 have introduced similar codes originating in law (OECD, 2021[2]). In general, these codes represent the minimum expectations that society places on interest representatives.
In its Statement of Principles, the Quebec Commissioner of Lobbying recommends establishing an ethical framework applicable to entities and interest representatives for the disclosure, carrying out and follow-up of lobbying activities in a way that maintains the highest standards of integrity and professionalism and promotes citizens’ trust in public institutions (Principle 11 of the Statement of Principles). The Commission also recommends assigning the interest representative and the entity for which they are an administrator, associate, officer, employee or member the joint responsibility of ensuring compliance with the ethical framework for the interest representative in carrying out lobbying activities (Principle 12 of the Statement of Principles).
The responsibility would no longer rest solely with the individual carrying out the lobbying activities, but would also be linked to the entity on whose behalf the activities are carried out. Thus, the company or organisation will be responsible for compliance with the framework by its internal representatives, while the firm of external representatives will be responsible for the individuals attached to it. This introduces the clear responsibility of firms towards the people they employ and their managers. The Quebec Commission of Lobbying believes that this will encourage entities to adopt internal compliance rules, thereby raising the degree of professionalism with which lobbying activities should be carried out, but also encouraging representatives to be more cautious since they expose themselves not only to external sanctions, under the legislative regime for example, but also to internal sanctions.
Quebec could encourage businesses and interest representatives to go beyond an interpretation related to the Lobbying Transparency and Ethics Act
Although lobbying is an essential tool for engaging with public decision-makers, it is not the only method used by companies to influence the policy-making process. For example, they can channel their influence by funding political parties or election campaigns, or by funding research or think tanks to generate knowledge and ideas on particular policy issues.
As with lobbying, the use of such alternative or complementary measures to engage in policy-making is legitimate and can help inform the policy-making process. However, the funding of political parties or election campaigns that exploit legal loopholes (OECD, 2016[11]), or the funding of think tanks or research groups to manipulate data or evidence, is a clear violation of the principles of integrity (OECD, 2021[2]). In companies with inadequate internal governance standards, unconstrained activities to influence policy-making processes, whether directly or indirectly, can have serious repercussions and raise concerns among shareholders, investors and consumers. Indeed, large institutional investors are becoming increasingly aware of the financial and non-financial risk of malpractice and are facing more pressure; as a result, risk and crisis management has become more dominant and the demand for transparency has increased.
Quebec could therefore consider encouraging companies and organisations to establish standards that specify how to ensure integrity in these methods of influence. Standards could cover issues such as ensuring accuracy and plurality of views, promoting transparency in the funding of research organisations and think tanks, and managing and preventing conflicts of interest in the research process. Also, setting clear standards for companies in the provision of data and evidence could help ensure integrity in decision-making. These standards could also specify voluntary disclosures that may involve social responsibility considerations regarding a company's involvement in public policy-making and lobbying (Box 3.6).
Box 3.6. Responsible lobbying standards and due diligence requirements on lobbying and trade association alignment
To better understand how they address corporate political engagement risks, investors can also encourage companies to formalise responsible engagement standards and internal processes that address the full scope of corporate and trade association conduct in the policy-making process. The standards and processes could cover the following areas:
Explaining how lobbying and influence activities align with public commitments to support goals on climate change and other shared sustainability challenges.
Establishing adequate due diligence measures to ensure that the positions and practices of those who lobby on a company’s behalf (industry and lobby associations) do not run afoul of the organisation’s values and commitments. This may include:
Processes to regularly review membership of trade associations and third-party organisations and identify misalignment.
Transparency on memberships of trade associations or other third-party organisations that may engage in political activities (charities, foundations, PACs, fundraising organisations).
The level of funding and engagement in these organisations (e.g. representation on the board, funding beyond membership, participation in specific committees or working groups).
Actions taken when the positions and lobbying practices of these organisations do not align with the company’s own lobbying practices and commitments.
Mainstreaming these standards across all business lines – including government affairs and sustainability functions to create a coherent position across the company’s government affairs activities and CSR/ESG branches. These policies should ensure that CSR/ESG teams have sufficient access to information on a company’s lobbying activities and trade association membership.
Adopting transparency and integrity measures on the hiring of former public officials.
Specifying the role of board members, top management and senior executives in regularly monitoring the implementation of the standards.
Ensuring that employees have the knowledge and capacity to implement the standards in their daily work.
Source: (OECD/PRI, 2022[12]).
Proposals for action
In order to foster a culture of integrity in interactions between lobbyists and public officials, and to be as consistent as possible with international best practice, the OECD recommends that Quebec consider the following proposals.
Strengthening the integrity framework for public officials
Clarify and, if necessary, establish or strengthen specific integrity standards for public officials and the behaviour expected from lobbying activities.
Clarify the responsibility of public officials to enforce the Lobbying Transparency and Ethics Act.
Strengthen the rules before, during and after a public mandate.
Build the capacity of ethics advisors to prepare them to answer questions from public officials related to the Act and the risks associated with lobbying practices.
Promoting responsible engagement by lobbyists
Quebec could strengthen the ethical framework applicable to interest representatives.
Quebec could encourage businesses and interest representatives to go beyond an interpretation related to the Lobbying Transparency and Ethics Act.
References
[5] Faccio, M. (2006), “Politically connected firms”, American Economic Review, Vol. 96/1, pp. 369-386, http://www.jstor.org/stable/30034371 (accessed on 30 December 2014).
[8] Lobbyisme Québec (2021), Mémoire présenté à la commission parlementaire concernant le Projet de loi n°49 – Loi modifiant la Loi sur les élections et les référendums dans les municipalités, la Loi sur l’éthique et la déontologie en matière municipale, https://lobbyisme.quebec/wp-content/uploads/2021/07/memoire-pl-49.pdf.
[3] Lobbyisme Québec (2019), Simplicité, Clarté, Pertinence, Efficacité. Réforme de l’encadrement du lobbyisme, https://www.commissairelobby.qc.ca/fileadmin/Centre_de_documentation/Documentation_institutionnelle/2019-06-13_Enonce-principes-CLQ.pdf.
[7] Lobbyisme Québec (2010), Mémoire présenté en entendu en commission parlementaire concernant le Projet de loi n° 109 – Loi sur l’éthique et la déontologie en matière municipale à la suite de l’étude détaillée faite par la Commission sur l’aménagement du territoire, https://lobbyisme.quebec/wp-content/uploads/2021/07/MVmoire_CLQ_projet_de_loi_no_109.pdf.
[6] Lobbyisme Québec (2009), Mémoire présenté et entendu en commission parlementaire concernant le Projet de loi n°76 – Loi modifiant diverses dispositions législatives concernant principalement le processus d’attribution des contrats des organismes municipaux, https://lobbyisme.quebec/wp-content/uploads/2021/07/Memoire_CLQ_projet_de_loi_no_76.pdf.
[2] OECD (2021), Lobbying in the 21st Century: Transparency, Integrity and Access, OECD Publishing, Paris, https://doi.org/10.1787/c6d8eff8-en.
[9] OECD (2020), OECD Public Integrity Handbook, OECD Publishing, Paris, https://doi.org/10.1787/ac8ed8e8-en.
[11] OECD (2016), Financing Democracy: Funding of Political Parties and Election Campaigns and the Risk of Policy Capture, OECD Publishing, Paris,, https://doi.org/10.1787/9789264249455-en.
[10] OECD (2009), Towards a Sound Integrity Framework: Instruments, Processes, Structures and Conditions for Implementation (GOV/PGC/GF(2009)1), Organisation for Economic Co-operation and Development, Paris.
[12] OECD/PRI (2022), Regulating corporate political engagement: trends, challenges and the role for investors, OECD Publishing, Paris, https://www.oecd.org/governance/ethics/regulating-corporate-political-engagement.htm.
[1] Premier ministre du Canada (2015), Pour un engagement ouvert et responsable, https://pm.gc.ca/fr/nouvelles/notes-dinformation/2015/11/27/gouvernement-ouvert-et-responsable.
[4] Yates, S. (2018), “La transparence des activités de lobbyisme au Québec : La grande illusion ?”, Revue française d’administration publique, Vol. 1/165, pp. 33-47, https://doi.org/10.3917/rfap.165.0033.