TI KEY FINDINGS ON THE LOBBYING LANDSCAPE IN EUROPE

The information and views set out in this article are those of Transparency International  and do not necessarily reflect the opinion of AALEP

“The lobbying landscape in Europe is diverse, complex and becoming more complicated. A broad range of interest groups and their representatives are looking to inform and influence public-decision making, contributing to a generally dynamic democratic environment. A number of actors attempting to influence decisions, from the private, public, not-for-profit and legal fields, do not consider themselves to be lobbying as such, and the activity is frequently called by another name- advocacy, public affairs or interest representation.

In most countries, lobbying as a stand-alone profession and consultancy service is still in its nascent stages. However, with the EU integration process increasingly making Brussels a hub of European policy-making, there is a growing professionalisation of the lobbying industry there. At national level, the system of sectoral representation and institutionalised partnerships with government is still present. However, a new pattern is emerging whereby the better resourced actors, in particular the larger corporate sector, are increasingly doing their own lobbying rather than relying on representation from business associations.

A diversity of lobbying techniques are being put to use from open participation in consultative processes to direct communications with decision-makers and the organisation of grassroots campaigns. Much of it is legitimate, however, some of the activities are specifically designed to confuse and conceal their true origin and beneficiaries from public decision-makers and any external observers. At the more extreme end, this includes acting through front organisations or creating the semblance of public support through manipulated and/or purchased opinions (also known as ‘astroturfing’). A notable portion of influencing across the 19 countries examined occur outside of any formal participatory or consultative channels, drawing on informal relationships and a variety of social interactions. In a number of states as diverse as Ireland, Portugal or Hungary, this influence is deeply intertwined with familial, class or business interest structures, creating opportunities for a culture of patronage and insular elites. The nexus between business and politics is growing even stronger, creating serious conflicts of interest, and with it, the risk of regulatory and policy capture. Of particular concern is the practice of carrying out lobbying activities while holding office, as well as the post-employment ‘revolving door’ between the public and the private sectors. Disproportionate and hidden political finance also plays a notable role.

Measured against international standards and emerging best practice, the 19 European countries and the three EU institutions achieve an overall score of just 31 percent for the quality of their promotion of transparency, integrity and equality of access in lobbying.

The vast majority of European countries reviewed have no comprehensive regulation of lobbying and no system in place to systematically record contacts between lobbyists and policy-makers. Europe lags behind Canada and the United States in this regard. Of the 19 countries examined, only 7 have laws or regulations specifically regulating lobbying activities (Austria, France, Ireland, Lithuania, Poland, Slovenia and the United Kingdom). Many of the lobbying related laws and regulations that exist in Europe are, to varying degrees, flawed or unfit for purpose. There are also problems with weak implementation and lack of enforcement of existing rules. Only one country, Slovenia and the European Commission, manage a score exceeding 50 percent. However, they too are faced with a range of problems including gaps in regulatory coverage, loopholes and poor implementation of rules. It is notable that the majority of countries at the centre of the financial crisis (Cyprus, Spain, Italy and Portugal) sit at the bottom of the table, together with Hungary. No less concerning is the performance of the Council of the EU, one of the most powerful institutions in Europe, which is third from last with a score of just 19 percent (and sitting at a polar opposite from the European Commission in terms of the ranking.

Transparency

Citizens and interest groups have little opportunity to know who is influencing public decisions, on what issues and how. Few countries have any requirements on the public sector to record information about their contacts with lobbyists and lobbying interest groups . The information that is documented is frequently too narrow or sporadic, and often is not proactively released to the public. Although all countries except for Cyprus have access to information laws, in practice, citizens, media or other interest groups face practical hurdles in making a successful information request. The seven countries and the two EU institutions that have specific regulations have all opted for a register as the cornerstone of their approach, requiring lobbyist registration and, in most cases, a periodic reporting of activities. Lobby registers can be useful in allowing citizens to track influence in the political process if they are designed with comprehensive definitions (including all who seek to influence public decisions), if they are mandatory, and if they are coupled with meaningful oversight mechanisms. However, none of the existing registers examined fulfil these criteria. It is important to note that even a comprehensive register of lobbyists is not a panacea to undue influence. It is only one measure among many others that are required to open decisions up to public scrutiny.

Integrity

Neither lobbyists nor pubic officials are subject to clear and enforceable ethical rules regarding lobbying activities, which is particularly troubling given the low levels of transparency. Although most countries have introduced a public sector code, a number of countries are still missing a similar one for legislators. The codes of conduct that are in place are frequently incomplete and do not provide sufficient behavioural guidance on how to deal with lobbying third parties. Particular problems are present around conflicts of interest management, including the periodic disclosure of interests. Although the majority of states have some revolving door regulations requiring a ‘cooling-off’ period before former public officials can lobby their former colleagues, only one country, Slovenia, has instituted one for the legislators and even in this case it is not properly applied in practice. None of the 19 countries assessed was found to have effective monitoring and enforcement of the revolving door provisions. In terms of core ethical guidance for lobbyists, only one country (Austria) has a mandatory code of conduct and under Ireland’s recently adopted Regulation of Lobbying Act (2015) a regulator is authorised to issue the same; a few others have voluntary provisions. One positive finding is that in most countries there are some voluntary initiatives and attempts to self-regulated lobbying activities, including the promotion of codes of conduct. However, in most cases, there are limited to particular professional associations, which constitute only a fraction of those looking to influence public decision-making. The codes are also usually voluntary and often with insufficient detail and weak complaint mechanisms.

Equality of Access

Public participation is inadequately protected, and certain groups are able to enjoy privileged access to public decision-making. While a variety of public consultation mechanisms do exist across most countries, implementation is usually inconsistent across government, and in no cases are there comprehensive requirements to provide detailed explanations on which views were taken into account and why. A further significant concern is regarding lobbying from the inside through expert and advisory groups convened by the public sector. Only one country (Portugal) has a legal requirement to strive for a balanced composition of these bodies, and in most countries their operations remain opaque to the outside world.

The status quo of a high risk of undue influence on public decision-making, coupled with inadequate regulation and oversight, has led to a serious impact on the public good, as well as on the reputation of all parties. The expert interviews and case studies and the underlying national studies demonstrate the high cost of the current approach, including its contribution to instances of environmental degradation, financial collapse, human rights abuse, and the endangerment of public safety, amongst others. It has also tarnished the reputation of all those lobbyists and lobbying groups as well as public officials and public institutions that do wish to conduct their operations in an open and ethical way. Levels of public trust are low and given that much of the lobbying activity remains below the radar, the true scale of the problem is likely to be much higher.

Despite the serious shortcomings in the regulatory frameworks across the EU, there are indications of positive momentum for reform. An increasing number of countries, including Estonia, France, Italy and Lithuania amongst others, are signalling a willingness to tackle the issue, with proposals are various stages of development. For all its shortcomings, the recently adopted Irish lobbying law raises the bar in terms of the quality of regulation in Europe. There are also a number of other promising practices throughout Europe. A growing number of professional lobbyists and corporates are committing to higher ethical standards in their interactions with government, and are in fact supportive of reforms, recognising the moral imperatives but also the benefits to reputation and the need for a level playing field. There have also been some promising developments in Brussels, and ongoing work on an international legal instrument on lobbying under the auspices of the Council of Europe.

This overall trajectory is encouraging and to be applauded. However, for these efforts to  be truly effective, a much more holistic approach to tackling the issue is essential. Unfortunately, many of the efforts to date have been too narrow in scope and do not take account of a broader framework of transparency, integrity and equality of access in lobbying (as well as the broader regulatory framework).

Equally, a sense of urgency, leadership and political commitment is required to ensure that such measures do not stall at their deliberative stage (as so frequently was the case in the past), but are adopted, and more critically, enforced. Only then can public policy again serve the public good, citizens can recover their trust in government, and the term ‘lobbying’ can be associated with participatory democracy rather than corruption.”

Overall Score for 19 Countries

 The overall score is an un-weighted average of results in Transparency, Integrity and Equality of Access

1. Slovenia: 55%
2. Lithuania: 50%
3. United Kingdom: 44%
4. Austria: 40%
5. Ireland: 39%
6. Latvia: 39%
7. Netherlands: 34%
8. Poland: 33%
9. Czech Republic: 29%
10. Estonia: 29%
11. France: 27%
12. Slovakia: 26%
13. Bulgaria: 25%
14. Germany 23%
15. Portugal 23%
16. Spain 21%
17. Italy: 20%
18. Hungary: 14%
19. Cyprus: 14%

•      European Commission: 53%
•      European Parliament: 37%
•      Council: 19%