LOBBYING: THE CASE FOR TRANSPARENCY AND INTEGRITY

Source: Open Knowledge International, Transparency International, Sunlight Foundation, Access!NFO

Preamble

At least 20 countries worldwide have a specific lobbying regulation in place at the national level (Australia, Austria, Brazil, Canada, Chile, France, Georgia, Germany, Ireland, Israel, Lithuania, Macedonia, Montenegro, Peru, Poland, Slovenia, Taiwan, United Kingdom, and the United States.) though the quality of regulation varies widely. Even though lobbying regulations are found mostly in industrialised regions, they are relevant for any country.

The purpose of lobbying regulation is to ensure transparency of the impact of lobbying on the decision-making process, as well as accountability of decision-makers for policies and legislation enacted. Lobby regulation should aim to ensure a level playing field for all actors to participate in the decision-making process on an equal footing, and there should be specific mechanisms in place to prevent potential conflicts of interest that may arise from attempts to influence the decision-making process. It is important to note also that regulation is only one element of a strategy to ensure fair lobbying, and that enforcement of any regulation, but also a broader willingness by all actors involved to act ethically, will be crucial to creating an environment of ethical and fair lobbying and public decision-making.

Guiding Principles

Lobbying is a legitimate activity and an important part of the democratic process. A democratic society is based on a pluralism of interests that holders of public office must navigate through in order to take reasoned decisions that favour the general good. In a healthy democracy, political representatives should be open to contact with their electorate, and citizens and interest groups should be able to communicate with administrative bodies; organise in associations and political parties; choose representatives in parliament; and generally participate in the political process. Lobbying enables those affected by public decisions to engage in the political process and also has the potential to enhance the quality of decision-making by providing channels for the input of valuable expertise. There is a significant public interest in ensuring the transparency and integrity of lobbying, as well as diversity of participation and contribution to public decision-making.

Since lobbying is a part of the democratic process, it is important to ensure that there is diverse participation in public decision-making so that all viewpoints are taken into account. This should lead to better policy-making that favours the public interest.

A key tool to ensuring a level playing field in the decision-making process is transparency. Lobbying, and the impact it has on legislation and policies, should be made transparent so that society at large can know who exercises influence and how. Indeed, transparency of lobbying permits any stakeholder in society to react to ongoing lobbying with their own efforts. Transparency also makes politicians aware that the public is watching, and allows citizens to evaluate the decision-making process with more precision and then to take this into account when voting in the next elections.

Any regulatory measures to secure these ends should be proportionate, fit for purpose and not impede on the individual rights of assembly, free speech and petition of government.

It is not the aim of lobbying regulation to simply burden a small segment of society, in particular lobbyists, with administrative obligations. Nor is it the aim to curtail the political rights of citizens. Lobbying regulation should be comprehensive enough to give citizens an accurate picture of how decisions are being taken and who is having an impact on legislation and policies, but it should not be instituted in such a way that it affects the rights of individual citizens, preventing them from gaining access to public decision-makers.

TRANSPARENCY

The lobbying interactions between lobbyists and public officials should be transparent, increasing awareness on the operation of government, contributing to stakeholder participation and allowing for public confidence and oversight. The responsibility for transparency should be shared by the lobbyists and the public official, but it is public officials who must be accountable to the public for decisions taken.

Transparency is the key objective of the at least 20 lobbying regulations that are known worldwide: there are regulations which aim only at transparency, but there is no regulation that does not include transparency. Furthermore, transparency is one of the two main pillars of the OECD’s “10 Principles for Transparency and Integrity in Lobbying” (alongside Integrity), and the “International Lobbying Disclosure Guidelines” by the Sunlight Foundation focus only on transparency, as does Access Info Europe’s Briefing on Lobbying Transparency via the Right of Access to Information.

Lobbying Register

The framework should require the establishment of a mandatory lobbying register to which the lobbyists, and all organisations who lobby whether by employing in-house or other lobbyists, must sign up in order to conduct their lobbying activities, and within which such activities are to be reported on a periodic basis along with any designated supplementary information.

Mandatory registers are the uniform standard in national lobbying legislations. They usually require the parallel sign up of several lobbyists: the legal entity that is lobbying is responsible for making a declaration in the lobby register, in which they must list these natural people working for them as lobbyists, as well as the lobbying client where applicable. Lobby clients are usually also required to register, and to likewise declare who they are hiring to act on their behalf. Many national lobbying legislations make registration a condition for lobbying or for obtaining access to key decision-makers. Some regulations go even further and require certain qualifications for conducting lobbying activities. However, this is problematic as it creates a danger that ordinary citizens, small businesses or civil society groups would be prevented from accessing decision-makers, which runs counter to these standards.

Timely Registration and Reporting

The initial lobbyist registration should take place in a timely fashion, before any lobbying activity takes place. Information should be updated shortly after any relevant changes occur. The frequency of activity reporting should be set with the aim of allowing for the meaningful analysis and intervention from other parties (minimum quarterly, ideally close to real-time).

Timely registration and reporting aims at equality of arms between different interest groups: The OECD’s “10 Principles for Transparency and Integrity in Lobbying” make clear that the public should have “timely access to such information [about lobbying]” in order to allow for “the inclusion of diverse views of society and business to provide balanced information in the development and implementation of public decisions”.

The frequency of reporting should be designed to allow other interest groups or the public at large to react to lobbying information before final decisions are taken.

Information to be Disclosed

Among others, the register should include information on:

1. Lobbyist identity (This should include the name and surname of the natural person engaged in lobbying. At the time of registration, lobbyists should provide consent that their names will be accessible via the register).
2. The subject matter of lobbying activities and outcomes sought (This is to ensure that citizens know what decisions lobbyists are trying to impact upon and how).
3. The ultimate beneficiary of lobbying activities (where relevant) (Members of the public should be able to know who exactly is seeking to have an impact upon a particular decision. This also prevents ‘astroturfing’, which is when large lobby groups set up smaller organizations or citizens’ petitions to defend their interests, making them look like grassroots efforts (‘astroturfing’ is a play on words for a fake version of ‘grassroots’).
4. The targeted institution and/or the public official concerned (This is to ensure the impartiality and accountability of public officials and institutions involved in the decision-making).
5. The type and frequency of lobbying activities (This should lay out the various methods used: public events, press statements, websites, coalitions, agenda-setting activities, research, etc., so that the public can get a real idea of how attempts to influence public decision-making function).
6. Any supporting documentation shared with the public officials (Disclosure of position papers, research reports etc. which are used to support lobbying efforts, allows the general public to see what arguments are being presented and for other counter-interests to organize and also participate in the decision-making process).
7. Lobbying expenditure, including in-kind (calculated to set criteria, in cost bands, if need be) (There may always be inequality of means but this should not result inequality of access and impact on decision-making. To ensure that this is the case, transparency over lobby expenditures is essential).
8. Sources of funding, per client and per dossier (This is mostly relevant for lobby consultancy and law firms that provide lobby services, and it is necessary to ensure that lobby clients are subject to the same levels of transparency as those that do not hire third parties).
9. Any political contributions, including in-kind (Notwithstanding specific legislation on political contributions, measures like this would work to prevent ‘cash for access’ or ‘cash for influence’ scandals, actions which are clearly prohibited under international standards and by political finance laws throughout Europe).
10. Any prior roles as public official held by the individual and/or family members (This is to ensure transparency over potential conflicts of interest or instances of inequality of access to decision-makers that could result from the revolving door (when public officials move from regulatory jobs to work for a private firm in the same sector that he or she previously regulated).
11. Public funding received (This is to ensure transparency and accountability in the spending of public funds, and it allows citizens to assess whether or not there is a level playing field.

Accessibility, Openness and Comparability of Data

The information should be made available online, through a single website, free of charge, indexable and downloadable in full as machine readable open data. As far as possible, this data should conform to existing open data standards. A unique identifier should be assigned to each lobbyist and organisation registered. Linking the information to other data sets, including those arising from proactive government disclosure, is highly recommended.

Publishing the information in open formats allows for advocacy groups, journalists and members of the public to download, search through and analyse the data, without the need to pay for proprietary software. This in turn ensures that there is wider public dissemination of the information and that the data is more digestible for citizens and decision-makers alike.

Minimal administrative burden – the system should allow for ease of registration and reporting, and look to minimise the administrative burden involved. The public sector obligations in terms of proactive disclosure and the public right to know should factor in achieving the right balance of mutual duties for lobbying transparency.

Registration should be quick and simple to do, preferably online and ideally using one single system for registration, reporting and publication. It is important to remember that public officials are obliged to respect the right of access to information, so the burden should be placed on them to also be transparent about lobbying and the impact it has on the decision-making process.

Public Access to Information

Access to information law – a comprehensive access to information law should guarantee the public’s right of access to information, including information about lobbying.

Public bodies are obliged to fulfil and respect the fundamental right of access to information, and to ensure that their decision-making processes are transparent and accessible. Public officials should be accountable for the decisions that they take and for the impact that lobbyists have on the decision-making process.

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” contain a reminder that “freedom of information legislation” is one of the prerequisites to “support a culture of transparency and integrity in lobbying”.

Limited exceptions – the law should clearly set out a limited number of exceptions to address the privacy, security, financial sensitivity, decision-making process and any other legitimate concerns, which should be bound by a harm and public interest test applied in line with internationally accepted standards.

The right of access to information is not an absolute right and there are certain legitimate interests that could be harmed as a result of publication of some pieces of information. The Council of Europe Convention is the first international treaty on access to documents and, although it is not yet in force, it is widely seen as the standard for defining which freedom of information exceptions are legitimate and which are not. Exceptions to the right of access to information should be covered by a harm test (so that the exception only applies if actual harm might arise from publication), and by a public interest test (so that, where harm might well occur but there is an overriding public interest in the information, it should be published anyway).

As the General Court of the European Court of Justice has made clear, “if citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process […] and to have access to all relevant information.”

Proactive publication – the public bodies and officials should proactively publish their organisational, programmatic, administrative, financial, and business schedule information, summaries of meetings and other interactions with third parties, as well as any background documentation and preparatory analyses received or commissioned in the course of their work. These obligations shouldl also extend to the operation of any expert and consultative bodies convened by the public sector.

Proactive publication of information is an intrinsic part of the right of access to information. A recent paper by the World Bank points out that “proactive disclosure is integral to the transparency that underpins good government […]. The precise standards for what information should be proactively disclosed are still being defined, but it is possible to identify common classes of information which should form the minimum of any national access to information regime.” In the context of lobbying, standards  should define the minimum that is necessary to monitor lobbying influences in the records of state bodies, including schedules, agendas, or meeting notes.

Decision-making Footprint

Where possible, and certainly for all legislative and policy initiatives, this information should be clustered around the individual items for consideration, producing a ‘decision-making footprint’, outlining the history, public engagement and overall process for the initiative. The footprint should also link to the lobbying register data.

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” call on governments to “consider facilitating public scrutiny by indicating who has sought to influence legislative or policy-making processes, for example by disclosing a “legislative footprint” that indicates the lobbyists consulted in the development of legislative initiatives.” This principle of transparency should apply to executive decision-making processes as well.

In 2011, the European Parliament adopted a proposal to create a “legislative footprint annex” to reports drafted by Members of the Parliament. This annex would list all the lobbyists whom lead MEPs met while a legislative report was being drafted. But in December 2016, MEPs refused to publish a "legislative footprint", which would lay down the influence of lobbyists on their legislative work.

Clear, Free and Comprehensive Information

All information should  be made public without charge (excluding actual costs on delivery) and without limits to reuse. Any key information and analysis should be presented in a form that is accessible and comprehensible to both citizens and interest groups. All recently generated data proactively released should be published as machine readable open data.

International Standards on the right of access to information make clear that public data should be provided for free, unless costs for the actual reproduction of the data need to be recovered (such as printing or photocopying costs).

Restrictions on re-use of public information are, in effect, a limitation also on the right to freedom of expression, and hence they should only be applied to public data where strictly necessary.

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” state that “The public has a right to know how public institutions and public officials made their decisions, including, where appropriate, who lobbied on relevant issues. Countries should consider using information and communication technologies, such as the Internet, to make information accessible to the public in a cost-effective manner.”

There are several open data standards that could be used to ensure that lobbying information is published in a machine-readable format, which allows for more efficient processing and analysis of public information – the European Commission and OECD have published some guidelines on this.

INTEGRITY

Both lobbyists and public officials should be subject to clear and enforceable standards of conduct and a system for managing conflicts of interest. The onus for proper behaviour should sit with both parties; however the public officials should have heightened responsibilities given their role as the holders of entrusted power.

Public Officials

1. Codes of Conduct – all public officials should have an applicable set of rules laying out the key standards of conduct, including for their dealings with third parties. Such rules may be institution dependent, but should include:
   1. Key behavioral principles including those of transparency, integrity, responsiveness, impartiality, fairness, accountability and serving the public interest.
   2. The duty to keep a true and detailed record of their actions, including of meetings with lobbyists.
   3. The duty to avoid lobbying contacts with unregistered lobbyists, and to report any violations of the lobbying rules to their superiors or relevant bodies.
   4. The duty of confidentiality, subject to the public access to information regime.
   5. A comprehensive mechanism for dealing with any real, potential or apparent conflicts of interest, including the incompatibilities of being a lobbyist.
   6. A comprehensive guidance for dealing with gifts and hospitality, including their registration or decline.
   7. A system for assets and interests disclosure by the public official, as well as by their family and business partners depending on the scope of the decision-making power of the official.

Post-employment restrictions

There should be a proportionate moratoria (or ‘cooling-off periods’) of at least 2 years before former public officials can lobby their former institutions concerning their prior duties. Approval from a designated ethics agency may be required before the public official can take up such a position.

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” call in this context to avoid post-public service ‘switching sides’ in specific processes and using their insider knowledge of the process to the benefit of their new, private sector, employer. It may be necessary to impose a ‘cooling-off’ period that restricts former public officials from lobbying their past organisations, should a risk of a conflict of interest arise. As for cooling-off periods, it should be noted that some countries apply longer periods of up to three or five years, such as Canada or Taiwan.

Pre-Employment restrictions

Prospective public officials, excluding those elected into office, but particularly those hired or seconded into advisory and regulatory roles, should all be subject to a conflicts of interest vetting process that may necessitate their recusal or supervision for certain aspects of their activities, or a disqualification from the potential position. Omission to declare details that may be relevant for identifying potential conflicts of interests should trigger disciplinary procedures.

Conflicts of interest might arise if a public official previously worked in the private sector and if they enter policy or advisory jobs in which their previous position could have an adverse impact. The OECD has recommended that “countries may consider a similar temporary cooling-off period restriction on appointing or hiring a lobbyist to fill a regulatory or an advisory post” for this reason.

Lobbyists Statutory Code of Conduct

There should be a statutory code of conduct for lobbyists developed in close consultation with all stakeholders and interested parties. Most lobbying regulations refer to ethical principles for lobbyists, which regulate their contact with decision-makers, but in most jurisdictions, these principles are not elevated to a statutory code of conduct. Austria and Canada are exceptions. In Canada, for example, all lobbyists are required to comply with a Lobbyists’ Code of Conduct and the Commissioner of Lobbying has the authority to administer and enforce the code if there is an alleged breach of either a principle or a rule of the Code.

Behavioural standards – the code shall lay out the core behavioural standards, particularly with regards to honesty and the avoidance of undue influence.

The obligation on lobbyists to act with honesty is an important part of most codes of conduct on lobbying. Lobbyists are obliged to disclose to public officials at first encounter that they are working for a client and to name that client. In many cases lobbyists are also prohibited from submitting false or manipulated data to the public official in order to strengthen their cause.

Lobbyists are also prohibited from encouraging public officials to exercise undue influence, for example by offering financial or immaterial advantages to public officials in exchange for a favourable decision.

There are a wide variety of behavioural standards in national codes of conduct for lobbyists: obligations include to refrain from disguising clients, referring to non-existent clients, or providing false information on the nature of the lobbying assignment (Australia, Lithuania); to refrain to use the logo of the lobbied public institution (France); to refrain from agreeing on success fees (Austria); or to refrain from financial contributions in exchange for opportunities to speak at events in Parliament (France).

Self-regulation

Supplementary measures should  be taken to encourage lobbyists to voluntarily adopt, publicise and report on additional ethical commitments, including through collective action. Such commitments should  be backed by internal control and sanction mechanisms, and be integrated within their broader corporate social responsibility (CSR) and governance strategy.

This is a reflection of the OECD’s Principle 9: “Countries should involve key actors in implementing a coherent spectrum of strategies and practices to achieve compliance.” In Austria, for example, the lobby law encourages lobbyists to adopt their own codes of conduct: Lobbyists “have to base their lobbying on a code of conduct, and have to refer to it on their webpage.”