International standards for lobbying regulation

Lobbying regulations aim to ensure that there is transparency of influence and hence a level playing field for all stakeholders to have the same opportunities to access and influence public decision makers. However, transparency over who has access is not the same as specific measures to ensure access for all. For this reason, citizens and other segments of society such as small and medium enterprises should be provided with specific channels and opportunities to participate in public decision making in a meaningful way.

The right to participate is a fundamental part of democracy, and citizens should be able to have an impact on ongoing decision-making processes as well as voting in regular elections.

The right to participate in the making of policies and laws at the level of the European Union and its Member States is enshrined in the Lisbon Treaty, which states that “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen”.

A legal framework should clearly and precisely lay out the participation rights that citizens have and how these can be exercised. Government bodies should make an active effort to promote public consultations via various communications channels – official bulletins but also traditional and social media - in order to reach as many members of the public as possible.

Practical example: In Finland, the Government Project Register (HARE) provides “up-to-date information on ongoing legislative proposals. On the website, citizens, organisations and other stakeholders can subscribe to press releases by e-mail regarding the progress of specific legislative projects as well as give feedback on the projects.”

There may be some cases in which public participation in a particular process is not practicable because of time-constraints, but this should not be the norm and any derogations from the right to participation should be clearly defined in advance and very strictly applied.

Public officials should be required to ensure that they are consulting with a balanced set of interests and they should make efforts to gather input from sectors that are traditionally under-represented.

In order to ensure participation in decision-making, transparency of the drafting process is essential from the beginning and not just at the much later parliamentary stage. A typical negative example of public participation is the still prevalent practice of publishing a draft law only once it is submitted to parliament, and for information only, but without any feedback mechanism for the public at large.¹ The UK Cabinet Office has recommended that public consultations be open for at least 12 weeks (see below for more). The European Commission also has a minimum 12-week window for public consultations.

There should be transparency and accountability over how decisions were taken and which inputs had an impact on the final outcome. Input that is not taken into account should likewise be specified. This allows for the identification of any potentially disproportionate influence on the decision-making process.

Refusals of the right to participate should be duly motivated, proportionate and necessary. Those denied the right to participate should be able to challenge such restrictions.

Expert input is often essential in public decision making. Decision makers will not always fully understand themselves highly technical issues such as financial market regulation or bio-technology, and so they rely to a large extent on external experts. Public bodies should also be required to make transparent the parameters, functioning and policy documents considered by the expert groups.¹

In parliament, a diversity of experts is usually ensured by internal rules giving all political factions a say in the nomination of experts for formal hearings. With expert and advisory groups for executive or independent bodies, the nomination of their members is often not so clear. Often, such bodies are installed informally and on an ad-hoc basis.

However, in some cases, the procedures for selecting external experts are highly formalised, such as the “European Economic and Social Committee”, a consultative body of the European Union stipulated in the Union’s treaties. Some international organisations such as the World Health Organisation also have explicit general rules on how advisory bodies should be set up.²

An example for the disclosure of interests is the European Union’s “standard Commission decision setting up an expert group”.¹ Article 4 no. 8 states: “The names of individuals representing an interest shall be published in the Register; /the interest represented shall be disclosed”; Article 11 requires: “at the start of each meeting, any expert whose participation in the group’s work would raise a conflict of interest” to “inform the Chair”.

Some countries provide incentives to lobbyists, such as access cards, invitations, or privileged access to meetings: “A lobbyist entered in the register of lobbyists in the Republic of Slovenia shall have the right to be invited to all public presentations and all forms of public consultations with regard to the areas in which he has registered an interest, and shall be informed thereof by the State bodies and local communities.”¹ However, such provisions raise the constitutional question of equal treatment: In principle, citizens should have the same rights as lobbyists, for example they should be able to receive notifications of public consultations in their fields of interests.