Comparative study of lobbying regulation mechanisms
The High Authority has published an overview of lobbying regulation mechanisms in 41 jurisdictions. The study covers all European Union Members States along with such countries as Canada, Chile and the United States, local initiatives such as the one implemented in Catalonia, and the mechanism provided for by European institutions.
Trust in institutions requires a maximum of information on the ways in which public decisions are made. Transparency of interactions between interest representatives and public officials would therefore seem of crucial importance in ensuring public integrity in the normative process.
Designed to highlight the transparency practices that exist at European and global level, the overview table includes information on the various laws, regulations and codes of conduct implemented in the selected jurisdictions to ensure oversight of interest representation activities, as well as on the institutions responsible for applying these rules. Compiling data provided in reports issued by the Group of States against Corruption (GRECO), the Organisation for Economic Cooperation and Development (OECD), the European Parliament and Transparency International as well as in research articles, legislative texts and online resources in each country, this document enables better understanding of the diversity of definitions of interest representation, the types of public officials concerned, and the means of control provided for by the various jurisdictions.
The overview opens the way to bilateral exchanges with institutions that share the High Authority’s mission of monitoring interest representatives, with a view to gaining greater insight into their systems and drawing inspiration from the best practices they implement. Its publication also provides the High Authority with an opportunity to reinforce its relations with the members of the European Network of Lobbying Registrars, which met in Paris in May 2019 and whose Presidency the High Authority will be taking over in April 2021.
Analyses are based on a number of criteria that are essential to effective oversight of lobbying, ensuring safeguarded performance of interest representation activities targeting public decision-makers:
- The existence of a law on lobbying;
- The obligation incumbent upon lobbyists to be registered in a register, categories of lobbyists required to register, and the register’s accessibility;
- The public officials concerned by lobbying activities and their obligations;
- The information that lobbyists have to declare and how often it has to be updated;
- The ethical commitments to which interest representatives are subject;
- The sanctions regime applicable to lobbyists that disregard their obligations; and
- The means of control and investigation allocated to the entity responsible for ensuring that lobbyists comply with their declarative and ethical obligations.
Is there a law governing lobbying practices at national or local level?
Half of the jurisdictions studied have laws governing lobbying practices, the most recent examples being those enacted in Lithuania and Peru.
Although the European Union provides a legislative framework for lobbying within institutions, many Member States do not have a law on the subject. Some countries, including Bulgaria and Finland, are nonetheless currently giving thought to a bill governing lobbying activities.
Are lobbyists obliged to be listed in a register? If so, what categories of lobbyists are under such obligation and is the register accessible online?
Almost 90% of jurisdictions that have a law governing lobbying oblige lobbyists to be listed in a register. Via their Chambers of Deputies’ internal rules of procedure, Belgium and Italy also make such registration mandatory even though they have no actual laws governing lobbying activities.
Registration is not mandatory in Chile or Hungary, or in the European Institutions’ Transparency Register. Being listed in the Register conditions access to the European Parliament’s premises, however, which is a major incentive. Nonetheless, a number of voices, like Transparency International and some members of the European Parliament, want institutions to restrict their appointments to registered lobbyists only in order to avoid exchanges outside official settings, and negotiations on a mandatory European register resumed in autumn 2020.
The United States, Canada and Ireland take account of all legal persons under private law and all natural persons, whether they are professional lobbyists carrying out lobbying activities on behalf of a client or lobbyists employed by companies and organisations. In Australia and the United Kingdom, however, the scope of activities taken into account only includes interest representatives acting on behalf of clients, excluding all companies, associations, organisations and trade unions that carry out lobbying activities on their own behalf.
The register is accessible online in open data in just under half of the jurisdictions studied. A number of online registers are actually only on offer in hard-to-export formats, as is the case in Germany for example.
Who are the public decision-makers concerned and what are their obligations?
The public decision-makers subject to lobbying activity rules are mostly elected representatives, often along with members of the executive branch and civil servants. In Canada and the United States, the laws in force provide detailed lists of public officials likely to be “lobbying targets”, going from the executive and legislative branches’ most senior representatives to all levels of the administration. Peru and Slovenia also include civil servants with decision-making powers. European countries mostly focus on the legislative branch, with Italy and the Netherlands limiting themselves to their Members of Parliament. In Germany, only Members of the Bundestag and Federal Government are taken into account. While Scotland focuses on direct participants in the law-making process, Catalonia includes all its administrative entities.
In addition, almost three quarters of the jurisdictions studied impose a “cooling-off” period during which a public decision-maker may not carry out interest representation activities following the end of their term of office. The waiting period in question may be up to five years, as is the case in Canada, and may apply to all such activities or only concern the fields in which the individual was directly involved in decision-making, as in Spain. Other countries, including France and Sweden, control the incompatibility of certain public officials’ and government members’ professional transitions in the private sector, over a three-year period. The European Commission also controls its former members’ professional transitions for a period of two years.
What information must lobbyists declare and how often?
Following the initial declarations, the information contained in the register must be updated on a regular basis. In most countries, this is the interest representative’s responsibility. In the United States, for example, all registered lobbyists must provide a detailed report every four months, including accurate financial information on expenditures incurred for each client represented. In Canada, “monthly communication reports” must include all meetings held with public officials during the previous month and specify the subjects broached during exchanges. In some countries, the obligation to update is incumbent upon public officials. Such is the case in Chile, Poland, Taiwan and Slovenia.
Are interest representatives bound by ethical commitments?
Almost a third of the jurisdictions studied have established legally binding ethical obligations. In France, nine ethical obligations are incumbent on interest representatives, including refraining from obtaining information from MPs by fraudulent means or gift giving. Such obligations also exist in Belgium, Catalonia, Scotland, Ireland and Lithuania, as well as in European institutions.
A quarter of the jurisdictions studied provide for forms of lobbyists’ self-regulation via codes of good conduct drawn up by interest representatives’ associations, as is the case in Italy, the Netherlands and the United Kingdom. The other jurisdictions do not provide for explicit ethical commitments.
What is the sanctions regime applicable to interest representatives that disregard their obligations?
In some jurisdictions, management of the register and control of declarative and ethical obligations are entrusted to an independent institution vested with powers of investigation and sanction. Such is the case, for example, in Canada, France, Ireland, Lithuania and Slovenia. Noncompliance with legal provisions results in proportionate sanctions (suspension from the register and prohibition to carry out lobbying activities for a given period, fines, etc.) or judicial proceedings, which, in the most serious cases, may lead to terms of imprisonment. In Canada, for example, any breach of the code automatically triggers an investigation by the Lobbying Commission, followed by a report to Parliament which is made public.
What means of control and investigation are allocated to the entity responsible for ensuring that lobbyists comply with their declarative and ethical obligations?
The question of overseeing lobbyists is still a recent one for many jurisdictions. The lack of control mechanisms in a number of countries, including Germany and Austria, may be explained by interest representatives’ reluctance to reveal who their clients are and the names of politicians who lobby on their behalf. France has a unit dedicated to control of lobbyists, which is part of the High Authority for Transparency in Public Life. Among other things, it can carry out onsite investigations and its requests for communication of information cannot be refused on grounds of professional secrecy. The Irish body may also carry out onsite inspections and take extracts from any documents it may require.