CONSIDERATIONS FOR REGULATION OF LOBBYING

Here below are the most essential elements that may be included in the regulation of lobbying:

Definition of Lobbying/Lobbyists: In all cases when lobbying is directly regulated ,the acts of legislation should either provide a general definition of lobbying/lobbyists, or state specifically to what persons it refers. Usually, such definitions included in the laws do not cover all the lobbyists, but only certain categories, for example, those who engage in lobbying on behalf of a client for remuneration.

Registration: One of the most widespread elements of lobbying regulation is the Register of Lobbyists. Usually it means that lobbyists have to register either mandatorily (as a precondition to be allowed to lobby) or voluntarily (sometimes in order to receive a certain privilege). The purpose of the register is to allow all interested parties to find out which persons are engaged in lobbying either at the parliament or any other institution.

Transparency: Alongside the requirement to register, which as such ensures a certain level of transparency, lobbyists sometimes have to fulfil other requirements with regard to transparency. Namely, they may have the obligation to disclose their identity, the sphere of their interests, specific issues they are lobbying, the name of officials they contact, time and place and type of contacts, remuneration received for lobbying, the clients who have commissioned the lobbying etc.. The main advantage of such requirements is that it allows citizens to gain a more comprehensive knowledge of the way certain political decisions have been prepared and made. On the other hand, certain difficulties are linked to the fact that the lobbyists and/or lobbied officials may have no wish to meet such requirements and it may prove difficult to force them to disclose the requested information. The lobbying contact may be confidential or it might take place in a private space and therefore it might be difficult for the controlling agency to discover it. In order to control such contacts contrary to the wish of the lobbyists and the lobbied officials, most probably, a special supervisory mechanism would be needed that could never have sufficient resources and would interfere into the privacy of people to such an extent , that such a system perhaps would contradict the rights to privacy. The demands for transparency might include obligations not only with regard to the lobbyists but also to public institutions, for example, an obligation to include in the explanatory notes of a draft law, information on organizations and persons consulted in the course of the development and subsequent discussions of a draft law.

Accessibility: Accessibility is an element of lobbying regulation that pertains more to the rights of lobbyists and not their obligations. Various regulations of lobbying define the rights of lobbyists to be provided easier access to officials and information, for example, by providing them passes to enter premises. This element might also include rights to contact policy makers during the policy making process. Improved access to officials and information may help unorganized groups and/or groups that lack financial and human resources to lobby effectively.

Norms of conduct/ethics for Lobbyists: States and institutions that have lobbying regulation in place tend to define certain norms of conduct for lobbyists. Such norms may include for instance a prohibition to pay or provide other material or intangible benefits to officials, the duty to disclose to officials their own identity and that of their clients, the duty not to engage in simultaneous lobbying on behalf of contradictory interests, the prohibition to sell public information obtained through lobbying, the prohibition to pose in relation with third parties as a person belonging to the institution where lobbying takes place.

Norms of conduct/ethics for officials: Various acts of legislation, codes, guidelines and other documents are used to regulate the conduct of officials vis-à-vis lobbyists. These norms might include the duty to declare income and property, prohibition to accept gifts and other benefits from third persons, prohibition to accept employment with a lobbyist or his clients.

Whatever the specific elements of a particular regulatory framework may be, most important is to define the purpose of the regulation. The definition of this purpose might be a much more complex task that it may seem at first glance.

Latvia Case Study

Latvia has no explicit regulations on lobbying although annotations accompanying draft legislation provide information about consultations held. GRECO suggested that Latvia do more to improve access to information in the legislative process, in particular with respect to lobbying.

Back in 2005, Christian D. de Fouloy was hired by the Corruption Prevention and Combating Bureau (KNAB) as a Short Term Lobbying Expert and he produced a final report entitled ‘Conceptual Guidelines for the Development of Provisions of Lobbying in the Republic of Latvia’

Two years later, in 2007, KNAB launched a  public consultation on the draft concept for the legal regulation of lobbying in Latvia. Persons and organisations representing interests of various social, professional and economical groups in relations with state and municipal institutions were invited to participate in the discussion. The purpose of the concept was to study the experience of other countries and to evaluate the necessity for the legal regulation of lobbying in Latvia in order to ensure transparency in cases when public decisions are made in the interest of certain persons or their groups. The draft was announced at the meeting of State Secretaries on 29 March, 2007.

Several years later, KNAB developed a Draft Law on the Transparency of Lobbying  which was submitted to the Government for approval in December 2013. The main objective of the Draft Law on Transparency of Lobbying was to ensure public confidence that the decision making process is free from unlawful influences by disclosure of information on lobbying activities. The Draft Law defined the concept of lobbying, stating that lobbying is deliberate communication with the public authorities in the interests of individuals to influence process of documents and draft law initiation, development, coordination, approval or notification process. The Draft Law also provided a definition of lobbyist and determined his/ her duties, concerning certain information for lobbying registration and disclosure procedures.

In February 2014, the Latvia’s Committee of the Cabinet of Ministers rejected the Draft Law on Transparency of Lobbying, leaving without a special law organizations and private individuals willing to influence administrative and political decision-making. The Prime Minister explained that the bill was excessive in some respects arguing that currently, all applications either by organizations or individuals are registered and so are meetings of heads of institutions and he asked KNAB to consider how lobbying could be regulated through new rules in existing laws and regulations. The Head of KNAB indicated that regulating lobbying via existing legislation had already been considered and that the new bill was necessary to encompass the widest possible spectrum of lobbyists and their area of action. KNAB pointed out that relations between entrepreneurs and the state now develop chaotically – some companies and associations report to the media their every contact with officials, while others do not make such activity public.

Ireland Case Study

In 2013 Ireland introduced a Lobbying Bill with the following Title

'An act to provide for a Register of Lobbyists to make information available to the public on the identity of those communicating on specific policy, legislative matters or prospective decisions with designated public officials or office holders as well as providing a framework for holding those engaged in lobbying accountable for the manner in which they conduct activity and providing for restrictions and conditions on the taking up of certain employments by certain designated officials and office holders for a specified period of time where a possible conflict of interest arises and to provide for related matters'.

Purposes of the Act.

1. Ensure that there is an appropriate degree of transparency in the development of public policy, preparation of legislation, public administration and decision-making,
2. Establish a public statutory register to provide appropriate information to the public on the persons or bodies that are engaged in lobbying public officials on significant public policy issues,
3. Allow for the introduction of a code of practice for the conduct of lobbying activities, and
4. Introduce conditions and restrictions for senior public servants, Ministers, and special advisers which could apply to subsequent employments involving lobbying for a specified period of time involving an actual or potential conflict of interest with their previous public service role.

It is important that the Bill contains a statement of purposes in order to provide a clear overall context for the regulation of lobbying. The key objective of this Bill is to introduce a register of lobbying so as to make information available to the public on the identity of those seeking to influence public policy decisions as well as providing a framework for holding those engaged in lobbying accountable for the manner in which they conduct the activity. This will allow the wider public to reach informed evidence-based judgements about the extent to which different interest groups are able to access and may be able to influence decision making.

The Bill comprises 4 Parts

Part I: General Provisions (Short title and Commencement, Interpretation/Definitions, Purpose of Act, Definitions of Lobbying and Exemption from Registration, Regulations, Expenses)

Part II: Register of Lobbyists (Establishment of and access to a register, Requirement to file returns, Form and content of returns, Ministerial Certificates, Delayed Publication of registration information, Certification of documents and date of receipt, Submission of documents in electronic form.

Part III: The Registrar (Establishment of the Office of the Registrar, Designation and functions of Registrar, Reports of the Registrar, Powers to carry out investigations, Administrative penalties, Special Reports of Investigations, Offences and penalties, Code of Conduct, Education and advice, Storage of documents and use of documents as evidence, Review procedures, Delegation by the Registrar, The Registrar)

Part IV: Other Provisions (Charitable Tax Exemption, Restrictions on Post-Term Employment, Administrative Appeal, Amendment of other Acts.

Code of Conduct

The registrar may, for the purpose of promoting high professional standards and good practice in relation to lobbying activities develop a statutory code of conduct for lobbyists in relation to the following matters:

(a) General professional obligations,

(b) Transparency,

(c) Confidentiality,

(d) Conflict of interest,

(e) In the case of Lobbyists acting on behalf of clients, specific professional obligations towards:

(i) Clients / employers,

(ii) Public opinion and the information media,

(iii) Fellow practitioners, and

(iv) The profession,

(f) Improper influence,

(g) Such other matters as the Registrar considers appropriate.

In developing the code the registrar shall consult persons and organisations that the registrar considers are interested in the code.

Any person defined as a lobbyist shall comply with the code.

The registrar may develop different codes for different categories of registrants.