OVERSIGHT, MANAGEMENT AND SANCTIONS
There should be sufficient oversight and support for the operation of lobbying regulations, as well as effective sanctions for cases of violation
Oversight and sanctions are a standard feature of any integrity regulation. To this end, the OECD’s “10 Principles for Transparency and Integrity in Lobbying” also call for lobbying regulations to provide for “Mechanisms for effective implementation, compliance and review” in its main Principle IV.
- Management & Investigation – an independent, mandated and well-resourced oversight body or coordinated mechanism should be charged with:
- managing lobbying registration
- reviewing potential conflicts of interest
- collating and disseminating the locations of proactively disclosed information
- monitoring compliance (including pro-active verification and spot-audits of reports)
- following up on complaints
- investigating apparent breaches and anomalies
- consulting on and defining further regulatory provisions where there is a mandate
An oversight body is a standard feature of any lobbying regulation. Independence in this context means that the oversight body is not identical with the parliament or ministries it needs to monitor. It should have an independent budget and merit-based appointments. Examples are the “Standards in Public Office Commission” (Ireland),1 the “Chief Official Ethics Commission” (Lithuania),2 or the “Agency for Prevention of Corruption” (Montenegro).
The management and investigation function of the oversight body is important, as many laws contain only a general implementation clause, which in practice leads the competent authority to maintain the register and otherwise passively wait for complaints, as is the case in the European Union, for example.3 Canada is a positive example of a lobby regulation that contains a comprehensive provision on investigations and how they should be conducted.4
See for example Section 17 Law on Lobbying (Austria): “The Ministry of Justice is entrusted with implementing this law”, www.ris.bka.gv.at/Dokument.wxe?Abfrage=BgblAuth&Dokumentnummer=BGBLA_2012_I_64 (unofficial translation from German). ↩
Section 10.4 Lobbying Act (Canada), www.ocl-cal.gc.ca/eic/site/012.nsf/eng/h_00008.html. ↩
- Advice, analysis and awareness raising – this body or mechanism should also offer guidance and training to lobbyists and public officials on the application of relevant laws, analyse trends and report on their findings, raise awareness among the public and the profession on recent developments; and promote best practice in the sector.
The function to provide guidance and public awareness is sometimes explicitly foreseen in national regulations. This is the case in Ireland, for example.1 It helps to ensure compliance with the law.
Section 17 Regulation of Lobbying Act 2015 (Ireland): “(1) The Commission may issue guidance about the operation of this Act and may from time to time revise it or re-issue it. (2) The Commission shall publish the guidance in such manner and form as the Commission considers appropriate. (3) The Commission may make available information with a view to promoting awareness and understanding of this Act.”, www.per.gov.ie/regulation-of-lobbying. ↩
- Complaint mechanism – there should be a well-publicised complaint mechanism that allows anyone to report violations either openly, confidentially or anonymously and to be informed on the specific outcome of the complaint, subject to any privacy limitations.
It is important to point out that according to the UNCAC, the “relevant anti-corruption bodies […] shall provide access […] for the reporting, including anonymously, of any incidents”. In practice, many successful corruption investigations go back to anonymous complaints and it is fair to say that they would not have been possible had anonymous complaints not been admissible.
- Sanctions – lobbyists and public officials shall be subject to effective, proportionate and dissuasive sanctions for the violation of lobbying rules. These sanctions should have a sliding scale, including the threat of criminal sanctions, (temporary) de-registration, and disciplinary proceedings for public officials. Those sanctioned may have their name and employer information published. Public sector contracts concluded in violation of essential regulations could be deemed null and void where appropriate. Personal liability should attach to the leadership of organisations where they are found to have consented to or connived in the commission of the offence.
Sanctions in national regulations range from reminders and temporary disbarments1 to criminal sanctions, including prison terms of up to five years.2 It is important to define liability in a way that it does not only cover lobbyists in a technical sense, but for example also a senior manager of an organisation who is responsible for ensuring that the legal person complies with lobbying regulations, even they do not lobby personally.
2 U.S.C. 1606 (b): “Whoever knowingly and corruptly fails to comply with any provision of this Act shall be imprisoned for not more than 5 years or fined under title 18, United States Code, or both.”, www.senate.gov/legislative/Lobbying/Lobby_Disclosure_Act/7_Penalties.htm. ↩