LOBBYISTS AND THE EUROPEAN PARLIAMENT

Authors: David Earnshaw and David Judge

Original text has been edited

Talk of ‘inspired legislation’, where laws, or more particularly amendments to legislation, are ‘written by a lobby group from the civil society and more or less rubber stamped by a public body’ is to over-simplify a complex and mediated relationship between elected ‘legislators’ and unelected ‘interest representatives’.

Indeed, in the case of the European Union (EU), identifying a single ‘public body’ as a ‘legislator’ is problematic in itself as all three major institutions – Commission, Council and European Parliament – perform legislative roles. Moreover, securing a single, clearly defined imprint of a ‘rubber stamp’ on legislation is difficult given the inter-institutional bargaining that results in blurred and smudged legislative imprints at the best of times. What should be made clear at the outset of any discussion of lobbying in the EP, therefore, is that the effects of lobbying are contingent and not certain. They fluctuate in accordance with inter-institutional interactions, national interests, types of policy, types of legislation, as well as the style of lobbying, the coalitions formed around specific policies and the nature of resources deployed by lobbyists themselves.

The EP has become a decisive target for lobbyists’ since the enhancement of its powers under the co-decision procedure, lobbyists in turn have had to cope with the institutional structure, the procedures and the policy style within Parliament.

Alongside any empirical assessment of the effects of lobbying is a parallel normative dimension of the promotion of sectional interests. Historically, most Western parliaments have been able to accommodate the representation of ‘functional’ or ‘sectional’ interests pragmatically alongside territorial, individualistic, or party notions of representation. Yet the challenges posed by group representation to established conceptions of parliamentary representation have raised fundamental normative questions about the impact of ‘interest representation’ upon established liberal democratic decision-making processes in the EU and its member states.

Exactly what constitutes ‘interest representation’ is the cause of heated academic debate but need not detain us here. All that needs to be noted is that the range of interests represented in Brussels is vast.

The most effective collectively organised interests and lobbyists know that Brussels is very much an insider’s town. They are aware that knowing who to speak to, and when, are vital resources in the informal interpersonal and inter-institutional networks operating in the Belgian capital. Certainly there are frequent interactions between MEPs and organised interests. Indeed, because of MEPs’ information deficiencies and time constraints they have to be open to lobbying.

Transmission, Translation and Timing ‘Interest representation’ and ‘lobbying’ in parliaments are normally justified in terms of information transmission, translation and timing. The transmission of information from interest organisations to MEPs is deemed essential as it provides pre-digested information for elected representatives who are often not experts in the particular policy area under consideration. This ‘briefing’ function also allows specific groups and organisations to translate often complex and technical information into accessible data for busy elected representatives. Successful lobbyists supply information in a clear fashion so that the MEP doesn’t have to be an expert in the field. In these interchanges the preferences of MEPs and lobbyists alike are for issue-specific briefings and the provision of detailed amendments at appropriate times. Of most use for both sides in the MEP–interest relationship is contact on issues of particular interest and propositions for amendments to the directives under discussion. The clear preference in the EP is for direct, personal, well-timed and pertinent contact; with lobbyists providing targeted information on specific legislative amendments. As important as transmission and translation of information, however, is the timing of its dissemination. The timing of the provision of information at the appropriate point in the EU’s legislative cycle is a key resource of groups and lobbyists. Timing is considered to be most essential for successful performance and , in turn, the timing of interest representation is dominated by the procedural rules of EU-decision making. Certainly, with the extension of the co-decision procedure lobbyists have become increasingly aware of the need to act more quickly to get their views across to MEPs. Within the EP itself there is recognition of the intimate connection between substantive policy concerns and the procedural constraints and opportunities affecting the timing of influence. In this context, timing is particularly acute when amendments to Commission proposals are to be tabled in committee. Committees that have heavy legislative loads are especially colonised by representatives of organised groups and consultants. The sessions of the EP’s Environment or Industry Committees, for example, regularly attract several hundred interest representatives. But the provision of information is not simply ‘supply-led’ but is also ‘demand-led’. Committee rapporteurs, committee chairmen, vice-chairmen and shadow rapporteurs are particularly prominent ‘targets’ for the supply of information and, in reverse, are significant ‘consumers’ of information from outside organisations. Rapporteurs in drafting their reports routinely seek information not only from other EU institutions but also from interest associations and lobbyists. In addition, committee members often request draft amendments from interested organisations when the groups concerned have not already suggested their own favoured amendments. As a consequence, the process of amendment in committee is often characterised by intensive negotiation, dialogue and compromise not only among committee members but, crucially, between MEPs and affected interests across Europe.

Amendment Overload

While the provision of detailed legislative amendments by lobbyists may be welcomed by busy MEPs in reducing their need to review complicated texts and draft amendments personally, one consequence of a preference for specific amendments is ‘amendment overload’. It is not unknown for a single legislative proposal to attract up to 500 amendments in committee. Indeed, the rise in the number of amendments tabled in Parliament, and the increased time-costs associated with voting, has resulted in electronic voting becoming more widely used in EP committees. Of course, the tabling of amendments does not necessarily ensure their adoption when voted on. Nonetheless, the fact remains that interest representatives are currently responsible for the initial drafting of a very high proportion of the amendments tabled in Parliament’s committees. Informed estimates put this in the region of 75 to 80 per cent in the most active legislative committees. More generally, few insiders would contest the fact that, even in the absence of specifically drafted amendments, the inspiration behind individual legislative (and other) amendments often flows from outside the EP. The sheer complexity of processing amendments should not be underestimated, with each amendment having to be translated into 24 languages, distributed to all committee members, and then voted on, or a compromise brokered. This process is complicated still further in instances (frequent in practice) of overlap between individual amendments, and of multiple amendments to individual articles and paragraphs of proposals and to draft reports. Moreover, duplication of tabled amendments is a common phenomenon, with different MEPs, even from different party groups, submitting identical amendments. Besides the embarrassment factor in such cases, it is thus apparent which MEP has been successfully influenced by which interest. MEPs can, and do, defend their tabling of amendments, generated outside Parliament, as attesting to their responsiveness to societal demands rather than as evidence of their domination by unelected interests. They also contend that each amendment has not simply to be tabled, but also presented, justified, argued, frequently compromised, and only then voted on in Parliament’s committees or plenary. Amendments are often subject to intense controversy, with votes on individual amendments in committee frequently being more contested than the final vote in committee or plenary.

Inter-institutional and Intra-institutional Intelligence

MEPs and interest representatives trade not only substantive information on policies but also exchange ‘inter-institutional’ information. The reciprocal trading of information on the thinking and scheduling of legislation within the Commission or Council is a vital commodity in the MEP–lobbyist relationship. Of particular currency in this exchange is intra-institutional information on the work patterns of, and rate of legislative progress in, the various parliamentary committees engaged in processing specific directives. Representatives of interest associations and lobbyists often provide informal monitoring for MEPs of the asymmetries of committee activity on a particular directive. They track the different deadlines imposed by the various committees for the tabling of amendments; variations in the speed of processing proposals across committees; and possible divergences of policy emphases in the different committees dealing with the same issue. In this way, interest groups with a mastery of the EP’s procedural complexities and a developed surveillance capacity provide not only substantive policy briefing but also inter- and intra-institutional intelligence for MEPs.

Hearings

The capacity of the EP to gain (and disseminate) information has been enhanced through the procedure of public hearings. Such hearings are convened by the EP’s committees with the permission of the Bureau. The purpose of hearings is to invite experts and interested organisations to provide evidence and engage in structured dialogue with committee members. Representatives of the Commission and Council attend the hearings, and the Commission is frequently invited to respond to the views expressed during the course of the hearing. The main advantages of public hearings are that they help committee members to familiarise themselves with a particular policy (either in terms of detail or the broader context). One dimension is that they provide a procedure whereby MEPs can engage in ‘exploratory dialogue’ and ‘forward thinking’ and so raise issues for consideration by the other EU institutions. Another dimension of hearings is that they provide MEPs with supplementary sources of advice and information from independent experts, organised interests and non-governmental organisations (NGOs) with which to assess the outcomes of the Commission’s own pre-legislative consultations.

Intergroups

‘Intergroups’ are unofficial groupings of MEPs who share a common interest in a particular cause or interest. There is such diversity among intergroups in terms of size, membership, frequency of meetings, links with political groups and outside interests that it is difficult to make generalised statements about their activities. Intergroups in the EP enable  MEPs to focus on a particular set of issues of specific national, constituency or personal concern, to specialise, to make contacts with outside interest groups on an informal basis, and to facilitate political contacts outside their own political groups. Intergroups are unofficial and are expected to make clear that they are not organs of the EP, they don’t speak on behalf of Parliament, and they can not use the EP’s logo or its official title in any communications or printed materials.

The ‘Institutional Lobbyists’

In addition to ‘mainstream’ lobbying by interest representatives, there has been a dramatic increase in the lobbying of the EP by the Commission and national governments (including third country governments). In recognition of the EP’s enhanced legislative capabilities the Commission and national governments acknowledged the necessity of maintaining a dialogue with appropriate MEPs. EU governments willingly provide policy briefings to their own national delegations in the EP. In recent years, national officials and politicians have started to seek to influence EP proceedings more intensively, at an earlier stage, and in tandem with their evolving position in the Council of Ministers. There is also a recognition that national governments should provide tailored briefings for committee rapporteurs, other key committee actors, constituency MEPs, committee members and, ultimately, all MEPs in the run-up to plenary, together even with a voting list so that those who agree with your position overall know how to vote for it in detail. Moreover, it is not unusual for individual permanent representation officials to suggest legislative amendments to their respective national MEPs in committee. Invariably these amendments parallel current national negotiating positions in the relevant working group of the Council. In this sense, national officials have started to intertwine themselves firmly into the pattern of interest representation within the EP. In addition, officials of the permanent representations sometimes also operate collectively in seeking to influence the EP, particularly as a result of co-decision. To this end, permanent representation attachés, who are responsible for relations with the EP, meet before each plenary session to co-ordinate their positions and identify targets for direct lobbying. Obviously, at this stage, national officials will reflect primarily the position arrived at in Council. Such lobbying may be intensive.

One fairly common assumption is that the EP attracts a disproportionate amount of lobbying from certain groups (environmentalists, women, consumers, animal rights). Yet offsetting this assumption is a growing recognition of the extensive involvement of business and corporate interests in the legislative activities of the EP. Perhaps it is safest to conclude, therefore, that few interests dare risk leaving the parliamentary arena to their opponents, and hence the EP attracts the full melange of stakeholders.

Conclusion

The reciprocal transmission of information from organised interests to MEPs, and the subsequent enhancement of the informational resources within the EP, has many benefits. Nonetheless, there remains a deep-seated concern that reconciling the demands of self-interested private interests with the wider interests of civil society is a central problem of democratic life. Historically, interest representation has been regarded as a particular problem for parliaments. Elected assemblies have institutionalised the norms of the equal status and voting weight of individual representatives, and the transparency of deliberation. In practice, however, the interactions between organised interests and elected representatives often reflect inequalities of access to, and provision of, information; and translucent rather than transparent bargaining. In these circumstances, fears about the representation of ‘sinister interests’, to use John Stuart Mill’s phrase, are articulated and demands for regulation emerge. In an environment in which MEPs retain close links with particular sectors or interest groups which will help to condition their choice of priorities, what concerns MEPs and outsiders alike is just how close these links are, and what kind of resources and incentives are used to condition the choice of priorities.  MEPs recognise the potential dangers of the ‘unelected’ representatives of sectional interests promoting those interests over and above an EU ‘general interest’ articulated by elected legislators. It is one thing to argue that lobbyists and interest representatives contribute to the legislative process and that ‘public legislation comes in many different forms and from many different sources’. It is another, however, to argue that the legislative impact of lobbyists is necessarily unmediated, direct or even unidirectional. This is not to deny that lobbyists can and do write specific legislative amendments, or that MEPs actively seek such amendments (or non-legislative interventions from lobbyists – such as questions). Instead, it is to note that precisely because legislative interventions derive from ‘many different sources’ the notion that elected representatives merely rubber stamp the interjections of lobbyists should be questioned.  Moreover, there is no unambiguous normative correlation between ‘elected-equals-good’ and ‘unelected-equals bad’. Give the complexity of the processing of legislation within the EP and the multi-dimensionality of EU decision-making, the normative certainties of ‘good’ and ‘bad’ – commonly associated with the adjectives ‘elected’ and ‘unelected’ – have to be re-examined, as, indeed, does the very concept of ‘legislator’ itself.