A register and a code of conduct for lobbyists in Belgium: concordia or discordia?

published in Res Publica, Vol. 60, 2018/3, p. 282-5

It is a classic field of tension in any democracy: the question whether we should consider politicians as delegates who are required to follow the will of their constituencies, or rather as representatives who are elected to follow their own judgement in ever-changing conditions. This issue already led to severe strive and bloodshed  in 133 BCE when war hero Tiberius Sempronius Gracchus, as Roman Tribune, campaigned for the redistribution of State lands seeking to improve the lot of the poor. Urged by the patriciate and rich Italians, fellow Tribune Marcus Octavius however called on his right of veto in the People’s Council, following which Gracchus had him outvoted. He opined that Octavius after all refused to carry out the will of the people. Urged by further foul play, the different interests conflicted to the extent that the time-honoured concordia between the stakeholders of Roman society completely fell apart. Following trouble-stirring within the Senate, Gracchus was beaten to death with a chair leg by a mob during his re-election on the Capitoline Hill. The Republic would never recover from the breach between the people and the privileged class that had to lead them.

In Western democracies of today, companies, trade unions and an ecosystem of social organizations, industrial associations and corporations place their political needs on the table. However, over the past centuries, the need for a stable balance between everyone’s interests certainly did not change. On the path to achieve political solution, the canvas got severely distorted on many an occasion, and as in Gracchus’ time, terms such as patronage and buying off clemency have been voiced. Even though the searchlights of the media reach further than ever today, public opinion often calls for the regulation of lobbyists. The success of that desire, however, depends to a large extent on the way in which three relevant core problems are dealt with.

First of all, the scope must be clearly outlined before there can be any involvement of regulation, which requires an unambigious definition of lobbying and lobbyists. Considering the merry chaos that has prevailed for decades among academics immersed in the subject, it seems anything but obvious. Does organizing an event, or a media campaign on energy savings, fall under lobbying? Are activists, trade unions or lawyers lobbyists? Or mayors?

The second core issue concerns the components of a regulation. Decisions should be taken on the scope (members of parliament only, or Cabinet appointees and officials of a particular policy level too?) and the extent to which information about lobby targets, clients, contacted policy makers and funding is collected and made available. In addition, rules of conduct must be defined and a system for enforcement must be devised. Here too, starting is easier than succeeding.

Initiative is the third and most interesting subject. Both the Government and lobbyists themselves can after all decide to take on regulatory tasks. Nevertheless, the result should be fair and increase both transparency and integrity. The situation abroad shows it often results in a voluntary or mandatory register that is managed by the Government, whether or not online, in combination with codes of conduct which is abided to by the sector. Thus, in the Netherlands the excellent Professional Association for Public Affairs (Beroepsvereniging voor Public Affairs (BVPA)) has been active since 2002, while the lobbying debate continues in the lower House. In this context, on 8 May 2015 the NRC Handelsblad still spoke of ‘a doomed attempt to control the uncontrollable’. With the Association Française des Conseils en Lobbying et affaires publiques (AFCL) and the Association professionnelle des responsables des Relations avec les Pouvoirs Publics (ARPP), France actually has two associations, but it took quite an effort to finalise the Loi Sapin II. This legislation deals with transparency, the fight against corruption and “the modernisation of the economy”.  Recently, a relatively far-reaching register came into force. In Germany the introduction of a register of lobbyists, also under the new Government, still doesn’t call on a majority in the Bundestag. The Deutsche Gesellschaft für Politikberatung (the De’Ge’Pol’) did have its quality management regulated in detail, and drafted an excellent code of conduct. Other European democracies such as Norway, Sweden, Portugal or Spain are still struggling as to how they should deal with the regulation of public affairs. Elsewhere in Europe, Lithuania (2001), Poland (2006), Slovenia (2010), the Netherlands (2012), Austria (2013), Ireland (2015) and the United Kingdom (2015) already implemented a register, albeit with different modalities, with or without a physical card.

In Belgium, lobbying activities remained unregulated until recently. However, the Belgian Public Affairs Community (BEPACT) established at the beginning of 2016, started drafting its ethics charter right away, and it was finalised that same year. Inspired by similar codes in Germany, France and the Netherlands, the document is based on three basic values – transparency, integrity and respect. The charter consisting of ten principles intends to implement a clear ethical delineation within which the BEPACT members can carry out their professional activities. They are committed to loyally comply with this. The two principles concerning transparency deal with disclosure of the identity of the client, and the active avoidance of conflicts of interest. The five principles concerning integrity deal with legitimate influencing and a correct approach in all respects with interlocutors. The three other principles deal with respect for confidentiality, legislation and the charter itself.

Things also recently picked up in movement on the part of the Federal Government. The unbalanced bill proposed by opposition parties Green (Dutch) and Ecolo (French-speaking) on a transparency register for Defence contracts, which circulated since March 2015, was picked up after a hearing at the end of 2016 by the Political Renewal Working Group (werkgroep Politieke Vernieuwing), founded at the beginning of March 2017 by the Parliamentary Committee for Internal Affairs. This followed a public debate on the cumulation of mandates by members of parliament and the associated fees. The Working Group decided to focus on seven thematic clusters, including transparency, as well as deontology, ethics and integrity. It appeared from the report by that working group, released in July, that consensus existed on setting up a public lobby register, to be published on a specific website and managed by a specific department. In addition to the personal identification data of the lobbyist, the registry also had to contain the data of the enterprise, institution or organisation. It would, however, not be recorded with whom lobbyists have contacts in the Parliament. The need was expressed to use the same six categories as in the EU transparency register. Finally, a code of conduct for lobbyists was also to be implemented. Signing of the lobby register would automatically entail acknowledgement of the code of conduct. The corresponding proposal to insert an article on the lobby register in the House rules, followed late November. This proposal detailed the report by the Working Group, among other things in terms of – curiously – some exempted service providers in the legal sphere and a short, very commonly described code of conduct concerning transparency, integrity and respect. The proposal, countersigned by both Government coalition parties and the regular opposition, was approved by the plenary assembly just before the 2018 summer recess. It is expected that the next Federal Parliament, to be be formed after the elections of 26 May 2019, will start with the implementation.

With both a Charter and a planned Registry, both workable instruments, Belgium seems to be heading towards greater ethics and transparency in public affairs. However, it is doubtful whether there will be much change in substance, because two major blind spots are emerging. First of all, the ministerial cabinets, which in Belgium have traditionally played a dominant role in policy making, do not fall under the registry, not only at the federal level but also at regional and community level. The same applies to the provincial and the local administration level, for both the legislative and the executive powers. Besides, where advocacy is concerned, the latter are generally considered to be very delicate terrain. Secondly, BEPACT is a young organisation, and its members are relatively limited for the time being. All this means that the organic range of advocacy in Belgium, both in terms of actors and playing field, remains largely uncovered as far as government regulation is concerned. The question arises whether the complex dynamics of the consensus democracy which has always characterised Belgium – an order in which policy makers and corporations, along with the finely meshed civil society of activists, trade unions and non-governmental organisations find balanced policy solutions – can be closely regulated, if only because of the many practical objections. On the other hand, this relatively successful model, based on a form similar to the Roman concordia, has gradually come under increasing pressure of public opinion. After all, in recent years it seems as if the political and socio-economic mechanisms that power Belgium, lead more and more and ever more violent to discordia. The distrust of the citizen vis-à-vis the triangle formed by politics, media and corporations also increases frighteningly fast. The current two initiatives want to pose an answer to this. However, the future will tell if this answer is adequate – and whether the chair legs will remain out of play.