The term lobbying refers to communications by intermediaries for companies
or organizations aimed at influencing public office holders in relation
to public policy or administrative decisions in which their constituents
have a particular interest. In a free and democratic society, certain fundamental
freedoms, such as freedom of expression and the right of association, constitute
the foundation of a complex interaction among government and individuals,
social and economic stakeholders, and civil society groups and organizations.
This article looks at certain provisions of the Lobbying Transparency and
Ethics Act (Québec) and asks whether there is any contradiction between
lobbying and the public interest.
In Le Petit Robert, under the term intérêt (interest), I came across
a phrase that beautifully captures the essence of what I want to speak
about. The dictionary attributes Balzac with writing, The law of public
) is destroyed by the law of private interest (
) which gives
birth to selfishness.
I do not know whether Balzac thought that lobbying and the public interest
are mutually exclusive. Personally, in a free and democratic society, I
see no contradiction between the affirmation and promotion of special interests,
and the identification by the government of what is to be decided in the
general interest. There is no opposition in principle if the respective
roles, duties and prerogatives of the playerslobbyist and public officeholderare
clearly understood and exercised correctly, and are respectful of the rights
and prerogatives of the others affected by the decision.
While the existence of stakeholders with privileged access to the holders
of power is as old as the exercise of power itself (consider, for instance,
the courtiers surrounding the absolute monarch in olden days), it was not
surprising to see that unofficial channels of communication to which certain
kinds of intermediaries, with particular knowledge or skills, could facilitate
access, developed and thrived, along with open and structured relations
between the government and the governed, or the Administration and the
Similarly, the enormous complexity of the political and administrative
structures of the modern State and the level of political and government
intervention in all areas of our individual and collective life have created
a need for a new kind of expertise, and to make services providing strategic
monitoring, situational analysis and interventions planning, of the capacities
of analysis of the situations and planning of the interventions, as well
as accompaniment and representation services, available to individuals
Internally, companies or special-interest groups may have to obtain the
same services or develop the same skills if they are planning to express
their interests or points of view to authorities in order to shape decisions
that interest or matter to them.
This is essentially the field occupied by lobbying. I think it has become
an inevitable reality in our modern-day society. Does this mean we must
basically acknowledge that lobbying exists and support its development,
or should we repress it as though it were a social shift or a perversion
of the system? There is no simple answer to this question.
In any discussion of influence with government authorities, there is certainly
a clearly established zone of proscription for anything having to do with
corruption and influence peddling. If these atypical situations are excluded,
we end up straight away discussing another issue, ensuring that government
management procedures have a foundation of integrity, legality and credibility,
and are carried out in compliance with the rights and prerogatives of the
various social stakeholders.
If we look at the question from the point of view of the lobby groups or
other entities which want to sway political or administrative decisions
to their own benefit, lobbying can be seen as a way of exercising ones
rights or of expressing ones views effectively within the framework of
a free and democratic society. In this regard, the Lobbying Transparency
and Ethics Act1 leaves no room for ambiguity: its opening words uphold
the principle that lobbying is a legitimate means of access to parliamentary,
government and municipal institutions.
It should be noted incidentally that, by confirming lobbyings legitimacy,
parliamentarians implicitly recognized that it can contribute to enlightened
decision-making by public office holders.
The question can also be considered from the viewpoint of a third party,
i.e. other parties who receive influence or, more generally, citizens who
grant legitimacy to the political and administrative institutions that
are directly or indirectly accountable to them. It is then easy to see
how much discomfort and suspicion is aroused by the activities of lobbyists
with public authorities. This suspicion is an expression of the fear of
undue influence, of an awkward promiscuity between the public decision-makers
and those representing special interests, and even of a subtle diversion
of the mission of the public institutions to the benefit of these special
When there is reason to believe these suspicions are founded, which unfortunately
does happen from time to time, the resulting deficit in confidence toward
the institutions can easily degenerate into a form of cynicism which illustrates
feelings of alienation and impotence.
While it may be futile and unrealistic to look for a way to isolate authorities
from lobbying, Québecs parliamentarians have I think shown a healthy pragmatism
by setting out certain rules of the game for influence communications and,
especially, by imposing transparency. In this regard, the principle of
transparency goes to the root of the very causes of the suspicion and lack
of confidence. It is the only way of restoring balance and of creating
the conditions that will allow for the democratizing of influence, to
borrow from the title of a conference that was held last year in France.2
Transparency by itself may guarantee that lobbying, by or on behalf of
specific interests, will not be to the disadvantage of the rights of the
other parties involved in a decision-making process of public interest.
I would even go so far as to say that in lobbying between the representative
of special interests and the public office, there is in theory no such
thing as a right to secrecy or privacy.3 It is in fact the reverse which
seems to me to be the rule and it is precisely what parliamentarians intended
in passing the Lobbying Transparency and Ethics Act. In fact, section 1,
which recognizes the legitimacy of lobbying, states explicitly that it
is in the interest of the public that it be able to know who is attempting
to influence [parliamentary, government and municipal] institutions.
Lobbying and Public Interest
As trustees of the public good, public office holders must take their decisions
in light of the public interest.
The public interest is an abstract concept, and one that is difficult to
define. In the political sphere, finding the public interest involves arbitrating
between the various points of view and legitimate interests of the parties
involved in a decision, between short, medium and long-term considerations,
and between various competing political, economic and social imperatives.
In the administrative sphere, the enforcement of standards is of course
subject to respect for procedural equity and legality, but often a public
office entails delegated or discretionary authority that must also be exercised
according to this same public interest requirement.
As Pierre Issalys and Denis Lemieux pointed out:
There is an absolute presumption that every law is passed to promote the
general interest. This concept of general interest is in opposition to
a private or specific interest. Consequently, it is impossible to think
that discretionary authority can be exercised solely for the benefit of
private interests since this would go against the legislation enabling
the authority (
). It is acknowledged that an administrative instrument
must always be motivated by the public interest.4
A point of equilibrium rather than an objective standard, the public interest
is not a combination of specific interests. This being so, the issue should
be considered from the standpoint of accountability.
In his 2000-2001 Report to the National Assembly, Québecs Auditor General
Accountability consists, in fact, in reporting on the actions taken and
the decisions made in order to reach the goals pursued by the organization,
as well as on the results achieved. Transparency in the decision-making
process is one of the key elements of the ethics infrastructure and accountability
confirms transparency. While accountability traditionally deals with the
three Eseconomy, efficiency and effectivenessit will have to include
from now on a fourth E, according to the OECD, ethics, to show that the
organization has not achieved its results using any means necessary.5
The OECD document to which the Auditor General referred expresses the view
that the role of the State in fostering integrity and the prevention of
wrongdoing encompasses the development and implementation of interdependent
mechanisms such as adequate monitoring, direction and management systems.6
The OECD advocates the establishment of the components and functions necessary
for a sound ethics infrastructureand framework for public service that
encourages high standards of behaviour and that promotes the integration
of values specific to the public administration.
There are certainly values that are common to all administrations, such
as legality, efficiency, integrity, and responsibility. There are however
other values which take on a special or even specific connotation in the
context of public service, such as impartiality, accessibility, equality,
equity, and transparency.
These reference values, like those related to the imperatives of economy,
effectiveness and efficiency, underlie accountability processes. The degree
of respect these values receive will determine the conviction among citizens
that the orientations and the actions of the authorities have been motivated
by this will to seek out what is advisable to do in the public interest.
Conversely, any suspicions about compliance with these values can only
lead to a further lack of confidence and those feelings of cynicism and
impotence which come out again and again with regard to our political and
The Lobbying Transparency and Ethics Act is a bold stroke toward furthering
the integration of these public service values. It sets out the rules of
the game and a new code of ethics7 for influence communications. But the
most drastic change it makes lies specifically in the obligation for transparency
among lobbyists. In so doing, the legislation adds a new dimension to the
right of citizens to information guaranteed by section 44 of the Quebec
Charter of Human Rights and Freedoms.8
In a study entitled Le droit du public de savoir qui cherche à influencer
le gouvernement : un droit fondamental, Henri Brun and Guy Tremblay described
the connection between this new aspect of the right of citizens to information
and the conditions for effectively exercising democratic rights in the
Whether it be direct or representative, institutional or participative,
democracy can only exist if the sovereign people are informed about the
state of the public good (of the republic) and the focus of the choices
with which the State is confronted. This information assumes general access
to information, but also that citizens have the right to transparency:
that the governments activities are only kept secret when strictly necessary.
And the heart of this essential right to information must be the right
of the sovereign people to know how decisions are made and therefore to
know who is trying, through lobbying, to exert influence on the governments
This bond between democracy and the control of lobbying, and the right
to information, means that the lobbying legislation has numerous constitutional
The listing by the authors of these fundamental rights which the Lobbying
Transparency and Ethics Act aims at promoting shows the extent of the issues
The lobbying legislation exists to give effect to the right to information
in section 44 of the Quebec Charter, the right to freedom of expression
in section 2b) and section 3 of the Canadian and Quebec charters, the right
to vote in sections 3 and 22 of these same charters, the underlying democratic
principle in the Constitution, the principle of responsible government
and finally the criterion of the democratic society found and the limiting
clausessections 1 and 9.1 of the Canadian and Quebec charters of rights.10
Given that the legislator added this new dimension to the right of citizens
to information, clandestine or atypical practices in influence communications
practices covered by the lobbying legislation are violations not only of
this right to information, but also to the other fundamental rights that
are meant to be effectively promoted by the legislation.
In looking at the issue from this point of view, it is easier to understand
the reasons for the feelings of impotence and cynicism that citizens express
so spontaneously when they have the conviction, or even the impression,
that, in managing the public good, decisions are made behind closed doors,
under some hidden influence from specific interests and that therefore
their democratic rights are not being respected.
The question then arises about the impact of such a law for public office
holders, who are the centre of attention of these representations and who
are consequently party to communications aimed at influencing their decisions.
The system set up to guarantee the transparency of influence communications
with public office holders imposes on the lobbyist who initiates them the
obligation to disclose information according to methods provided in the
Act. At first sight, the legislation does not seem to place any official
obligation on public office holders. Does this mean that the very people
who must interpret the meaning of public interest by performing their duties
are not involved?
Here again, it is necessary to look at the issue from the point of view
of accountability, which brings us back to the considerations mentioned
above. It is not just the nature or the objective value of the decision
made that will convince citizens that the decision was made in the public
interest, but citizens must also be assured that the decision-making process
was permeated by respect for the public service values and chiefly transparency.
During the Gomery Commission hearings, the commissioner often challenged
witnesses who acknowledged quite frankly that they had not complied with
the requirements of the federal lobbyists registration legislation,11 although
these people were clearly acting as lobbyists. In his final report, the
Commissioner made the following observation:
) the Governments duty to enforce the requirements of the Lobbyists
Registration Act has not been fulfilled, and public speculation that there
is no political will to enforce compliance is justified.12
How can we not see in this concise assertion a confirmation of the fact
that the government is, in its procedures, accountable for respecting the
fundamental rights of citizens, including their right to information as
defined specifically in the Lobbying Transparency and Ethics Act.
Given the connections which must be made between democracy and transparency,
do we have the information we need to answer the question: Do lobbying
and public interest go hand-in-hand?
While the legitimacy of the lobbying is correctly acknowledged as a means
of intervention for expressing points of view or special interests and
thus of influencing decisions made by public office holders, this legitimacy
is subject to the imperatives of transparency, legality and a code of ethics.
It is under these conditions that we can reasonably state that lobbying
and public interest can go together.
If these conditions of transparency and compliance with the rules of the
game are not imposed and are not observed in lobbying activities, then
the danger to which Balzac referred in the sentence quoted in the introduction
1. R.S.Q., c. T-11.011 (S.1).
2. Xavier Delacroix (ed.), Influencer la démocratie, démocratiser linfluence :
enjeux et perspectives dun lobbyisme démythifié, Association française
des conseillers en affaires publiques, Paris, 2004.
3. See Re Gillis and Chairman of the New Brunswick Electric Power Commission,
 130 D.L.R. (3d) 558. The Court of Appeal of New Brunswick ordered
that the terms of a contract between a private firm and the provincial
government be made public under access to information legislation, and
stated that, If a person or firm wishes to keep their contracts secret,
then such should not do business with the provincial Government. What a
government does is public business as it is the money of the public which
is being expended.
4. Pierre Issalys and Denis Lemieux, Laction gouvernementale : Précis du
droit des institutions administratives, (2e éd.) , Éditions Yvon Blais,
Montreal, 2002, p. 67.
5. Auditor General of Quebec, Rapport à lAssemblée nationale pour lannée
2000-2001, volume 1, para. 3.92.
6. Organization for Economic Co-operation and Development, Building Public
Trust: Ethics Measures in OECD Countries, 2000, pp. 25-26.
7. These rules are codified in the Act, in sections 25 to 32, and in the
Code of Conduct for Lobbyists (c. T-11.011, r. 0.2) adopted under section
8. R.S.Q., c. C-12. This right of citizens to information to the extent
provided by law was already entrenched in the Act respecting Access to
documents held by public bodies and the Protection of personal information,
R.S.Q., c. A-2.1 and in the An Act to govern the financing of political
parties, R.S.Q., c. F-2. In recognizing the publics right to find out
who is trying to exert influence over parliamentary, government and municipal
institutions, the Lobbying Transparency and Ethics Act adds to the scope
of this right to information that is guaranteed under the Quebec charter.
9. Henri Brun and Guy Tremblay, Le droit du public de savoir qui cherche
à influencer le gouvernement : un droit fondamental in Les développements
récents en matière de lobbyisme, report of the mini-conference by the Barreau
du Québec, Service de la formation permanente, Montreal, February 4, 2005,
10. Idem, p. 22.
11. Lobbyists Registration Act, LRC 1985, c. 44 (4th supp.).
12. Restoring Accountability: Recommendations, Final Report of the Commission
of Inquiry into the Sponsorship Program and Advertising Activities, Ottawa,
2006, p. 190.