International standards for lobbying regulation

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” state in this context: “Rules and guidelines on lobbying should address the governance concerns related to lobbying practices, and respect the socio-political and administrative contexts. […]

The OECD’s “10 Principles for Transparency and Integrity in Lobbying” also call on countries to “take into account how the regulatory and policy framework already in place can support a culture of transparency and integrity in lobbying. This includes stakeholder engagement through public consultation and participation, the right to petition government, freedom of information legislation, rules on political parties and election campaign financing, codes of conduct for public officials and lobbyists, mechanisms for keeping regulatory and supervisory authorities accountable and effective provisions against illicit influencing.”

Consideration of the local context is important to avoid schematic copy-paste solutions when drafting legislation. Any part of these Standards needs to fit the particularities of the country: Is it necessary to define the circle of lobbyists in a wider manner? Do we need more information through the lobbying register? What would be the proper title and terminology for the regulation in order to convey the right message? As an example, in some countries, the legislative process might already define how industry and labour associations participate; these associations might thus argue that there is no need for them to be included into a future lobbying regulation. In this regard, one has to review, to what extent their already existing participation complies with the transparency and ethics standards of a future lobbying regulation.¹

1. Bribery is the most direct form of undue lobbying: the bribe giver seeks to influence a public official. All international conventions criminalise it.¹ Trading in influence occurs when a person has real or apparent influence on the decision-making of a public official and exchanges this influence for an undue advantage. The offence thus targets not the decision-maker, but “those persons who are in the neighbourhood of power and [who] try to obtain advantages from their situation” by influencing the decision-maker.² All international conventions criminalise the offence,³ but make it optional for member states to adopt it.

   Practical Example: Lobbying registers can help to uncover instances of wrong-doing and hence trigger administrative or criminal investigations. For example, suspiciously high lobbying spending by one interest group might trigger an investigation into what extent the money was used for illegal political financing or bribery rather than lobbying (as was the case with the notorious U.S. lobbyist Jack Abramoff).

2. Political finance rules need to be robust in order to avoid the possibility that donations to a political party would result in favourable access and treatment if they are elected into power, as this would be akin to acts of corruption.

   The following international standards are relevant in this context: Council of Europe’s Venice Commission and OSCE/ODIHR “Guidelines on political party regulation”;⁴ “Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns”.⁵

3. Undue influence through lobbying is a high risk where financial interests are involved. This concerns public procurement and other areas of state benefits.⁶ The OECD⁷ and the United Nations Commission on International Trade Law (UNCITRAL)⁸ set international standards on procurement.

4. Lobbying can also include general “agenda-setting” activities. Media reports often do have an influence on public opinion and on public officials, but as long as media are reporting freely and independently, this is not technically lobbying. However, in practice some media outlets are owned by large interest groups that may have an influence on the editorial content of the media outlet. In the context of lobbying it is important to prohibit sponsoring of news broadcast or emissions on current political events,⁹ and it is essential to preserve the independence of the media from outside financial influences.¹⁰ General international standards¹¹ support such regulations.

   The Council of Europe Parliamentary Resolution 1636 (2008) inter alia calls for journalists to “disclose to their viewers or readers any political and financial interests” and for media outlets to “have editorial independence from media owners”.¹²

5. Labour unions can be powerful interest groups and should not be exempt from lobbying regulations. Lobbying registration does not infringe on constitutional rights of collective bargaining, but in fact only makes it transparent.

6. Whistle-blower protection is essential if insiders are to be able to securely report instances of possible misconduct. Reporting on violations of lobbying regulations should be explicitly included in the incidents protected by whistle-blower protection. The Council of Europe has adopted in 2014 the first international standard on this issue.¹³

7. As stated above in the section on Participation and Access, legislative procedures should be open and transparent from an early stage in order to permit public scrutiny and participation. The possibility of expedited legislative procedures should not be abused to reduce the possibilities for public input.

8. Judicial and administrative review is important to ensure that an independent body can exercise control over the implementation of lobbying regulations and of the broader regulatory framework.

9. Without these basic human rights, citizens would not be able to participate, and interest groups would not be able to form and to gather together to defend their interests, or “lobby” their decision-makers.