International standards for lobbying regulation

Alongside transparency, integrity is the other fundamental pillar of lobbying regulation. The integrity principles for public officials contained in these Standards are based on international standards, in particular the Council of Europe “Model Code of Conduct for Public Officials” (2001).¹

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” also aim at “fostering a culture of integrity” (main principle III) by requiring ethical rules for lobbyists and public officials.

The “Handbook on parliamentary ethics and conduct, a guide for parliamentarians,” by the “Global Organization of Parliamentarians Against Corruption (GOPAC)” provides further instructions on ethics regulation.²

The Group of States against Corruption (GRECO) Evaluation Reports, 4th Round, tend to include the issue of lobbying when assessing the integrity of parliamentarians.³ Integrity rules are necessary for both lobbyists and public officials, and they should complement each other.

1. These are standard principles that apply to all public officials. For example, the OECD’s “10 Principles for Transparency and Integrity in Lobbying” list inter alia the following duties of public officials: “impartiality to promote the public interest, disclose relevant private interests and avoid conflict of interest” (Principle 7).
2. This ensures that there is transparency of the decision-making process and of the impact of lobbying efforts on the final outcome. The Peruvian law on lobbying specifically includes a record-keeping obligation, for example.¹ The European Commission has likewise adopted decisions that require Directors General, Commissioners and their cabinets to keep a record (public list) of their meetings with interest representatives.
3. In Montenegro, the law on lobbying specifically obliges public officials to report lobbying violations². Australia is also one of the many countries in which there is a prohibition on contacts with unregistered lobbyists³. European Union Commissioners, Directors-General and their cabinets are likewise prohibited from meeting with unregistered lobbyists.
4. The principle of confidentiality is not meant to run counter to freedom of information, but applies only in cases where there are exceptions to freedom of information that cover particularly sensitive information. Codes of conduct often make reference to post-employment confidentiality requirements. The objective is to mitigate the risk of a former public official using their insider knowledge, for example from working in a financial oversight body, when they move to the private sector to lobby for the interests of banks.⁴ Cooling-off periods can mitigate but not prevent such abuse.
5. There are many national lobbying regulations that highlight the incompatibility of being a public official and a lobbyist at the same time, for example in Austria,⁵ Macedonia,⁶ or Montenegro. This is due to the fact that public officials are mandated to act in the public interest, which requires impartiality. Hence public office is incompatible with the role of a lobbyist, as they work to defend the interests of a particular sector of society.

6. The following quote illustrates how important robust rules in particular on gifts are. The famous North-American lobbyist Jack Abramoff said in a TV interview that “very few members” of Congress do not accept some form of bribery: “I am talking about giving a gift to somebody who makes a decision on behalf of the public and at the end of the day that’s really what bribery is […]. But it’s done every day and it’s still being done.”⁷

   A 2014 report by the European Parliament demonstrates the seriousness of the problem: the report calls for an amendment of the Code of Conduct for lobbyists in order to prohibit “interference in the private sphere or personal life of decision-makers, e.g. by sending gifts to a decision-maker’s home address”.⁸

   As for executive public officials, Article 18 of the Council of Europe “Model Code of Conduct for Public Officials” prohibits public officials to “demand or accept gifts, favours, hospitality or any other benefit […] which may influence or appear to influence the impartiality with which he or she carries out his or her duties or may be or appear to be a reward relating to his or her duties. This does not include conventional hospitality or minor gifts.”

   It should be noted that for example in Peru, there is an absolute ban to accept any generosity by lobbyists.⁹ In Argentina, there is a direct ban on gifts directly related to the MP’s position. In Australia MPs are allowed to accept gifts, but only if they do not present a direct conflict of interest.”¹⁰

7. Asset declarations are relevant in the context of lobbying in several ways: they can show how public officials might have second jobs incompatible with their main position (for example as lobbyists), as well as previous positions or involvements with interests in conflict with the public interest they are supposed to defend. From a financial side the declarations can also show any significant financial influence on the public official.

   International standards are the Organisation of American States (OAS) “Model law on the declaration of interests, income, assets and liabilities of persons performing public functions” (2013)¹¹ and the “Western Balkan Recommendation on Disclosure of Finances and Interests by Public Officials” (2014).¹²

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 Canada¹ or Taiwan.²

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.

Practical example: A campaigner for a child-rights NGO might find a new job in the EU institutions, specifically in the unit that takes decisions on funding applications for grants to NGOs. The campaigner should avoid taking decisions on grants relating to their previous employer, to prevent risks that a conflict of interest may arise, and to prevent the public perception that there is a risk of a conflict of interest as well.

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.¹

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 (see the section on public officials and gifts, above).

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).

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.”¹ For more information on self-regulation you could refer to the “Woodstock Principles for the Ethical Conduct of Lobbying”² or the “Society of European Affairs Professionals Code of Conduct”.³

The Global Compact’s report “Towards Responsible Lobbying” provides guidance on responsible lobbying for businesses; the report includes topics such as “Mapping the People Involved in Lobbying Activities”, “Ensuring Robust Management of Lobbying Activities”, “Reporting on Influence”, as well as providing “Examples of Lobbying Codes of Conduct”.⁴

Practical example: The EU Office of Transparency International adopted an internal policy in 2015 whereby they have started to publish a list containing “Meetings between staff members of Transparency International EU and MEPs, Commissioners and other officials who are involved in the policy-making process.” They report “all meetings and contacts with EU officials where we have sought to influence the policy-making process.”