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4. The experience
of certain member States of the Council of Europe
Report | Doc. 11937 | 05 June 2009
Lobbying in a democratic society (European Code of conduct on lobbying)
(Former) Committee on Economic Affairs and Development
Summary
The report notes that the activities of different interest groups have been constantly increasing at the level of the European institutions and the Council of Europe member states. However only four member states adopted laws on lobbying activities and in ten other member states of the Council of Europe this question has been discussed in national Parliaments.
The rapporteur considers that pluralism of interests is an important element of democracy, but unregulated or secret lobbying may be a danger and can undermine democratic principles and good governance.
The draft recommendation proposes a number of principles for the elaboration of a European Code of good conduct on lobbying with a view to improving transparency in this field.
A. Draft recommendation
(open)1. The Parliamentary Assembly notes that during recent
decades the activities of different interest groups have been constantly
increasing. This phenomenon is true both at the level of the Council
of Europe member states, and at the level of the European institutions.
Moreover, a strong increase and concentration of lobbying activities
in both Brussels and Strasbourg has been observed with the unification
process and European Union enlargement. Today, it is estimated that
over 15,000 special-interest groups are active in Brussels, more
than 2,600 of which have their permanent offices there and perform
lobbying activities with the EU institutions.
2. The Assembly is convinced that pluralism of interests is an
important feature of democracy and it is perfectly legitimate for
members of society to organise and lobby for their interests. However,
unregulated, secret lobbying as such may undermine democratic principles
and good governance. In a democracy, all interests ought to be duly
taken into account and all citizens should have equal access to
the law and decision-making.
3. The Assembly notes that very few Council of Europe member
states have regulated lobbying activities in some way. Thus surveys
have shown that among 14 countries having regulated lobbying or
considered the issue within their parliaments, only four European
countries have adopted a law on this issue.
4. The Assembly is concerned by the fact that such a situation
may undermine democratic principles and good governance in those
Council of Europe member states where democratic traditions are
not deeply rooted and where absence of effective mechanisms of checks
and balances exercised by civil society constitute a danger.
5. The Assembly welcomes the fact that the European Parliament
was the first European institution to regulate lobbying activities
on its own premises. A lobbyists’ register has been created and
a code of ethics introduced, with which lobbyists must comply. Moreover,
the opening by the European Commission of the first register of
European lobbyists on 23 June 2008 constitutes an important step
in the sense that it allows a standardisation of these activities
at European level, reinforces the culture of dialogue and consultation, enhances
transparency, and will also in the long run improve lobbyists’ negative
public image.
6. The Assembly notes that both the United States and Canada
have taken steps to regulate lobbying activities. It considers that
the member States of the Council of Europe could draw many interesting
lessons from these two countries’ lawmaking experience in this field
and the problems encountered in applying their legislation. However,
there is no single solution to all the questions raised by lobbying
activities.
7. The Assembly recalls its Recommendations and Resolutions on
fighting corruption (Resolution
1214 (2000)), the financing of political parties (Recommendation 1516 (2001), Resolution
1264 (2001) and Resolution
1546 (2007)), corporate ethics in Europe (Resolution 1392 (2004)), conflict of interest (Resolution 1554 (2007)) and the state of democracy and human rights in Europe
(Resolution 1547 (2007) and Recommendation
1791 (2007)), as well as a series of reports on member states under
the Assembly procedure for monitoring their obligations and commitments.
8. The Assembly is concerned by the fact that in recent decades
we have seen a dramatic decline in public confidence in politics
in many Council of Europe member states. The lack of transparency
in political lobbying activities can be deemed to constitute one
of the causes of this phenomenon.
9. The Assembly is convinced that, in a democratic society, citizens
are entitled to know the identity of the lobbying organisations
which influence political decision-making and voting by members
of parliament. Therefore, greater transparency of lobbying activities
can make political players even more accountable and restore public
confidence in government authorities’ democratic functioning.
10. Citizens consider access to political decision-makers with
a view to providing them with information and attempting to influence
their decisions as one of their democratic rights. However, this
access or lobbying possibility must be fair and equal, transparent
and governed by democratic rules. If citizens do not believe that they
can have a real influence on political decision-makers, democracy
may be undermined.
11. Taking into consideration the importance of the activities
of different interest groups in the member States of the Council
of Europe, the Assembly recommends that the Committee of Ministers
of the Council of Europe should elaborate a European Code of good
conduct on lobbying based on the following principles:
11.1. lobbying should be very clearly
defined, differentiating between lobbying as professionally compensated
activity and the activities of the organisations of civil society;
11.2. transparency in the field of lobbying should be enhanced;
11.3. rules applicable to politicians, civil servants, members
of pressure groups and business enterprises should be laid down,
including the principle of potential conflicts of interest and the
period of time after leaving office during which carrying out lobbying
activities should be banned;
11.4. entities involved in lobbying activities should register;
11.5. 5 prior consultations should be held with lobbying organisations
on any draft legislation in this field;
11.6. well-defined, transparent, honest lobbying should be encouraged
so as to improve the public image of persons involved in these activities.
B. Explanatory memorandum by Mr Mendes Bota, rapporteur
(open)1. Introduction: on lobbying and lobbyists
1. European democracies increasingly face complex challenges
stemming from globalisation, notably the influence of interest groups
and economic powers on political decision-making, and the declining
trust and participation of citizens in democratic institutions and
processes.
2. While the pluralism of interests is an important feature of
democracy and it is perfectly legitimate for members of society
to organise and lobby for their interests, unregulated, secret lobbying
as such may lead to the corruption of democratic principles and
good governance. In a democracy, all interests ought to be duly taken
into account and all citizens should have equal access to law and
decision-making.
3. Holding decision makers accountable to prevent any abuse of
office has been a major concern of democratic societies, with continuous
efforts to better enforce anti-corruption measures at all levels.
4. Across Europe, progress is being made in the area of rules
on political party finances, conflicts of interest and as regards
the political influence on justice systems. This has also been reflected
in the Parliamentary Assembly’s work through debates on the role
of parliaments in fighting corruption (Resolution 1214 (2000)), on the financing of political parties (Recommendation 1516 (2001), Resolution
1264 (2001) and Resolution
1546 (2007)), on corporate ethics in Europe (Resolution 1392 (2004)), on conflict of interest (Resolution 1554 (2007)) and on the state of democracy and human rights in Europe
(Resolution 1547 (2007) and Recommendation 1791
(2007)), as well as a series of reports on member states under
the monitoring (of obligations and commitments) procedure.
5. However, as the Council of Europe Octopus Interface Conference
on Corruption and Democracy, held in Strasbourg on 20-21 November
2006, showed, very few of the Organisation’s member states have,
more or less effectively, regulated lobbying.
6. On a European level, the European Union generates a great
number of legal norms that affect also non-EU countries; yet the
role of lobbies needs to be clarified which is the aim of the European
Transparency Initiative launched in May 2006. The gap in understanding
between European institutions and citizens has unfortunately grown
and so has a suspicion about these institutions’ policies and decisions.
This situation calls for a comprehensive response.
7. Your rapporteur is convinced that a European code of conduct
for lobbyists could be a highly valuable step in strengthening transparency,
accountability, public confidence and citizen participation in the
democratic process as part of a broader set of legislative measures.
8. This report will therefore present compelling arguments for
the Council of Europe to start working on such a text as a matter
of priority and will encourage member states to adopt effective
rules on lobbying. It will review selected national experiences,
best practices and views from the corporate sector, civil society
interest groups and professional lobbyists in order to formulate
proposals for action at European and national level.
9. There is a growing public awareness that many decisions in
parliaments and governments are made as a result of lobbying by
peers or outside pressure groups. Although the term of lobbying
has been coined from the ’lobbies’ or hallways of parliament where
members gather before and after debates, today lobbying takes many
different forms.
10. Lobbying is generally understood as a concerted effort to
influence policy formulation and decision-making with a view to
obtaining some designated result from government authorities and
elected representatives. In a wider sense, the term may refer to
public actions (such as demonstrations) or ‘public affairs’ activities
by various institutions (associations, consultancies, advocacy groups,
think-tanks, NGOs, lawyers, etc.); in a more restrictive sense,
it would mean the protection of economic interests by the corporate sector
(corporate lobbying) commensurate to its weight on a national or
global scene.
11. In European public opinion, lobbying very often tends to have
a negative connotation and is frequently perceived as a form of
corruption/manipulation that excludes ordinary citizens from decision-making
and circumvents the general interest of the population.
12. At the same time, one should not forget that lobbying that
takes place in accordance with clear, transparent rules is a legitimate
part of the democratic system and is one way of allowing citizens
to express their concerns. Moreover, lobbying viewed as a channel
to expertise and feedback is helpful for informed and balanced conduct
of public affairs.
2. The experience of the United States and Canada
13. The United States and Canada are among the few advanced
western democracies that have extensive regulations on lobbying
activity. Their regulatory profile and experience are particularly
relevant for the purpose of this report. The overview of regulations
described below refers of course to the federal level of these countries
while the jurisdiction of federal entities might vary considerably.
14. In the mid-1990s the United States re-codified rules on lobbying
by enacting the federal “Lobbying Disclosure Act of 1995” in which
the Congress admitted that earlier “lobbying disclosure statutes
have been ineffective because of unclear statutory language, weak
administrative and enforcement provisions, and an absence of clear
guidance as to who is required to register and what they are required
to disclose” while estimating that “the effective public disclosure
of the identity and extent of the efforts of paid lobbyists to influence
Federal officials in the conduct of Government actions will increase
public confidence in the integrity of Government”.
15. The law defines lobbyists as any person receiving compensation
of $ 5,000 or more per six-month period, making expenditures of
$ 20,000 or more per six-month period, for lobbying or making more
than one lobbying contact and spending 20 % or more of his or her
time over a six-month period on lobbying activities for an organisation
or a particular client. Also, organisations are required to register
if they plan to engage in lobbying activities during any six-month
period and incur at least $ 20,500 in lobbying expenses. 
16. Virtually any communication – written or oral, with either
“covered legislative branch officials” or “covered executive branch officials”
regarding the formulation, modification or adoption of policy or
legislation, and the administration or execution of a federal program
or policy – is considered as lobbying.
or “covered executive branch officials”
regarding the formulation, modification or adoption of policy or
legislation, and the administration or execution of a federal program
or policy – is considered as lobbying.17. Lobbyists must register within 45 days of making a lobbying
contact or being employed for such activities. They must disclose
information on any organisation that provides more than $10,000
in support in a six-month period and plays a major part in the supervision
of the registrant’s lobbying activities, as well as the identity
of a foreign entity that influences the registrant’s lobbying activities
or is an affiliate of the client and has a direct interest in the
outcome of the lobbying activity.
18. Every six months registered lobbyists are required to file
detailed reports on their activities, including a “good faith” estimate
of their total expenses relating to lobbying during that period.
Any cases of ill-compliance with the law should trigger investigation.
However, this aspect seems to be the Achilles heel of the act. In
the experts’ view, the Department of Justice’s enforcement of the
act appears to be very weak and the policy of confidentiality that
surrounds it is at odds with the purpose of the act.
19. According to a study of the Centre for Congressional and Presidential
Studies at American University, direct expenditures on lobbying
in the United States rose from $ 1.4 billion in 1998 to $ 2.1 billion
in 2004, amounting to nearly $ 5 million a year spent to influence
the votes of each member of Congress. In 2007 the figure was $ 2.82
billion. The actual figures, including sums spent on more covert
forms of lobbying, were estimated to be up to five times as large.
The number of registered lobbyists more than doubled in just five years
(2000-2005) to reach 35 000 and it appeared that, since 1998, over
40% of departing members of Congress took on jobs to lobby former
colleagues. According to another study, by the NGO "Public Citizen
in the USA", the commercial return on every dollar spent on lobbying
is $ 100.
20. In 2002, Zbigniew Brzezinski, former national security adviser
to President Jimmy Carter, called Washington “the most corrupt capital
in the world” describing the nation’s political culture as one “in
which there’s no distinction between what is illegal and what is
unethical”. As if to echo these concerns, the country’s political
system was shaken up in 2005 by the Abramoff affair – one of the
worst corruption scandals in the federal capital – and the resignation
of a republican congressman who admitted taking $ 2.4 million in
bribes to “promote” certain companies for defence contracts. An
opinion poll revealed that nearly 90% of Americans saw political
corruption in Washington as a serious or very serious problem.
21. This politico-corporate turmoil prompted proposals for legislative
revisions of the lobbying act as regards a more detailed disclosure
of all sorts of contributions from lobbyists to politicians and
a requirement to double to two years the ban on former congressmen
to lobby their colleagues.
22. After the Democrats strengthened their position in the Congress
in late 2006, some industries (pharmaceutical, oil and gas groups
and government contractors in Iraq) came under increased parliamentary scrutiny.
On the very first day of the new Congress, new ethics rules for
the House were approved and on 24 May 2007 the lobbying reform bill
(H.R. 2316) was adopted.
23. Canada adopted its first federal law on lobbying – the Lobbyists
Registration Act – in 1989 and amended it in significant ways in
1995, in 2003 and in 2004. Unlike the American legislation, the
Canadian lobbyist law does not aim to monitor lobbying activities,
nor does it require disclosure of all related financial information (spending
reports) of lobbyists or clients they represent ;
it does not oblige politicians to record contacts or ensure that
those who lobby them are registered. It is believed that having
a registry is enough to secure the level of transparency and openness
in the democratic process from which all participants (citizens,
public office holders, lobbyists and politicians) can benefit.
;
it does not oblige politicians to record contacts or ensure that
those who lobby them are registered. It is believed that having
a registry is enough to secure the level of transparency and openness
in the democratic process from which all participants (citizens,
public office holders, lobbyists and politicians) can benefit.24. The act defines as a lobbyist any individual who for payment,
on behalf of any person or organisation, undertakes to liaise with
a public office holder in an attempt to influence the development
of legislative proposals, positions on or amendments to laws and
regulations, policy development, meeting agenda, attribution of
grants, funds or other benefits and contracts. Later amendments
strengthened the definition to cover all communication made by the
lobbyist to public officials (these include elected members of the jurisdiction’s
legislature or parliament and their staffs; employees of government
and government agencies; government members). The law also makes
a distinction between those who lobby on behalf of clients (consultant
lobbyists) and those who lobby on behalf of their employers (in-house
corporate or organisational lobbyists).
25. When registering, lobbyists must disclose their position and
titles (as well as a description of the offices held if a former
public official is concerned), client details and affiliation, subject
matters of activity and results sought, information on governmental
institutions lobbied, communication techniques used (including grass-roots
lobbying ), sources and amounts of
any governmental funding obtained for clients and indications on whether
payment is contingent on the success of the lobbying.
), sources and amounts of
any governmental funding obtained for clients and indications on whether
payment is contingent on the success of the lobbying.26. Once registered, all lobbyists have to re-register every six
months for as long as they pursue their activity. There are about
3200 registered lobbyists in Canada. Given potential conflict of
interests, federal ministers cannot act as lobbyists for two years
after leaving office and former high-level civil servants have to wait
one year. Virtually all lobbyists in Canada register online and
citizens are allowed to access the registries at all levels.
27. Canada also has the Lobbyists Code of Conduct in effect since
1997. This code defines acceptable standards of lobbyists’ action
and sets out key rules. Accordingly, when lobbying, lobbyists must
disclose who they represent and for what matter; they should provide
accurate information and handle confidential information with caution,
inform their clients of their obligations, avoid conflict of interest
of the parties involved and abstain from exercising any improper
influence.
28. Critics of the code have been prompt to point out shortcomings
relating to vague definitions which are open to multiple interpretations,
for instance regarding what constitutes ’improper influence’. Thus,
although in theory breaches of the code trigger the Registrar’s
investigative powers and can lead to bad publicity (but no fines),
in reality there have been no cases of such investigation.
29. Failures to comply with the requirements of the Lobbyists
Registration Act are prosecuted with fines and, in certain cases,
imprisonment (of up to two years). However, observers note loopholes
in the lobbying regulations and weak enforcement due to insufficient
resources and the lack of independence of the investigative power
(the Registrar) from the Ministers’ Cabinet.
30. Moreover, if federal rules on the Conflict of Interest and
Post-Employment Code for Public Office Holders bar ministers, their
staff and Cabinet appointees from becoming lobbyists for one to
two years after they leave the official post, there appear to be
no rules prohibiting lobbyists from working for Cabinet ministers
and government departments they are lobbying or for political parties
and election candidate campaigns. Under the new Government, consultations
are held to tighten up the rules of the game on lobbying in the
light of the implementation of the Federal Accountability Act.
3. Current practice in the European Union and other European Institutions
31. After World War II, European states have been gradually
transferring decision making power to supranational institutions.
Regarding the European Union, this is particularly true of the last
two decades which have been marked by the development and consolidation
of the single European market (as reflected in the signature of
the Single European Act in 1986), the Economic and Monetary Union
(with the signature of the Maastricht Treaty in 1992) and a single
European currency, as well as the latest attempts to adopt a European Constitution.
32. This trend of integration, successive waves of enlargement
and the rise of Brussels as a policy making and governance hub resulted
in a growing activity and focus of lobby groups on European policies.
It is estimated that around 15 000 interest groups ,
including some 2600 with offices in Brussels, currently lobby EU
institutions.
,
including some 2600 with offices in Brussels, currently lobby EU
institutions.33. Among the EU institutions, it was theEuropean
Parliament that considered and endorsed first proposals, in 1996,
for rules on lobbying in Parliament and member’s financial interests.
By way of Rules of Procedure 9 (1 and 2), a lobbying registry was
set up, together with the College of Quaestors responsible for the implementation
of these rules and the issuance of passes to
“persons who wished to enter Parliament frequently with a view to
supplying information to members within the framework of their parliamentary mandate”.
These rules became “the cornerstone of the Parliament’s policy to
regulate the interaction of members of Parliament and private interests”.
to
“persons who wished to enter Parliament frequently with a view to
supplying information to members within the framework of their parliamentary mandate”.
These rules became “the cornerstone of the Parliament’s policy to
regulate the interaction of members of Parliament and private interests”.34. EP rules define lobbyists as private, public or non-governmental
bodies that can provide knowledge and expertise in numerous economic,
social, environmental and scientific areas but make no explicit
mention of interest groups trying to influence policy or decision
making nor specify who can be lobbied (i.e. MEPs, their staff, civil
servants, etc.). The formula used is very soft, if not vague. Although
names of lobbyists are made available to the public on the EP website,
other relevant information (such as the nature of the lobbyists’
work, the interests for which they are acting or any parliamentary
references as indicated on the registration form) is not. There
are over 4200 institutions accredited to lobby in the EP.
35. Appended to the rules of procedure is the code of conduct
which lobbyists are expected to follow. This code is of rather general
nature in providing minimalist standards and broad concepts which
are difficult to measure and monitor (for instance indication to
refrain from any action to obtain information dishonestly or to disclose
to third parties copies of documents obtained from parliament).
The only sanction for lobbyist breach of the code is the withdrawal
of the pass to access Parliament, which is very rare.
36. We note that, in comparison to the Canadian and American regulations,
EP requirements of mandatory information for lobbyist registration
are very modest. Thus, lobbyists are not asked to disclose entities
lobbied, subject matters pursued and EP activity covered, any contingency
fees involved, communication techniques used, resources spent and
any indication of office earlier held as a civil servant or elected
representative. There are also no rules stipulating that former
MEPs or EP officials are not allowed to lobby for a certain period
after quitting their official functions.
37. Since 1999, theEuropean
Commission has undertaken a series of transparency-related measures regulating
its own administration. They include the access-to-documents legislation
(Regulation 1049/2001) and a register of documents; public access
to databases on consultative bodies and experts advising the Commission;
wider consultation and impact assessment prior to legislative steps;
the Code of Good Administrative Behaviour and the Code of Conduct
for Commissioners. The so-called CONECCS (acronym for ’Consultation,
the European Commission and Civil Society’) was put in place to
provide a basis for the voluntary registration of civil society
organisations (such as trade unions, business associations and NGOs)
willing to take part in the consultative process. However it is
estimated that no more than 7% of all lobbyists have effectively
registered.
38. Siim Kallas, Vice-President of the European Commission and
Commissioner for Administrative Affairs, Audit and Anti-Fraud, opened
a new chapter in the debate on lobby regulation with the European
Transparency Initiative, launched in November 2005 and adopted,
as a ‘communication’, on 21 March 2007. The Initiative aims to provide
more information to the public on the end beneficiaries of EU funds,
anti-fraud findings of EU and national investigations, as well as
on a full range of interest groups lobbying the Commission, and
to start a debate on common ethical rules to be applied to all EU’s
lawmakers (i.e. including Commissioners, officials, MEPs and the
Council of the European Union). Having considered the ‘pros’ and
‘cons’ of mandatory registration for lobbyists, the Commission finally
decided:
and adopted,
as a ‘communication’, on 21 March 2007. The Initiative aims to provide
more information to the public on the end beneficiaries of EU funds,
anti-fraud findings of EU and national investigations, as well as
on a full range of interest groups lobbying the Commission, and
to start a debate on common ethical rules to be applied to all EU’s
lawmakers (i.e. including Commissioners, officials, MEPs and the
Council of the European Union). Having considered the ‘pros’ and
‘cons’ of mandatory registration for lobbyists, the Commission finally
decided:
- to open, in spring 2008, a new voluntary register for interest representatives with an “alert” function;
- to strengthen the implementation of the Commission’s consultation standards with the use of a website for online consultations and linked to the register;
- to prepare a code of conduct for relations between interest representatives and the EU institutions, which will be monitored by the Commission.
39. The register will comprise information on the registrants’
resources, major clients and/or funding sources, depending on the
different categories of actors concerned: professional
consultancies and law firms are
asked to disclose the turnover linked to lobbying EU institutions
and the relative weight (in round percentage figures) of their various
clients in this turnover; ‘in-house’ lobbyists and business associations should
indicate their estimated costs associated with the direct lobbying
of EU bodies; NGOs and think-tanks should declare their overall
budget and the breakdown of main sources of financing.
40. Apparently, the estimate of the cost of the lobby effort is
deliberately left to registrants’ own appreciation in a ‘self-regulating
mode’. This looks like pretty much toothless regulation, even if
we consider lobbyists’ arguments about a ‘fundamental misconception
that money equals influence’ and ‘commercial confidentiality’.
41. Commissioner Kallas had warned however that a failure of self-regulation
and voluntary registration would inevitably lead towards mandatory
registration with more stringent reporting requirements and penalties for
non-disclosure.
42. A critical moment was reached in late August 2007 when the
European Public Affairs Consultancies Association (EPACA), representing
38 major companies, announced that it would boycott the proposed European
Commission’s voluntary register which it labelled as “discriminatory
and unworkable”. It further claimed that a requirement to disclose
“commercially sensitive financial information” (such as client fees)
was in breach of EU competition law. Many law firms also said they
opposed the register. Moreover, in July 2007, the European ombudsman
officially reprimanded EU Trade Commissioner Peter Mandelson for
his refusal to name the lobbyists he had met.
43. On 23 June 2008 the first European Commission lobby register
was set up. The register requires organisations to indicate their
objectives and missions and their main activities of interest representation
and to provide financial information, so that the driving forces
behind a lobbying effort become clear.
44. The register requires “organisations lobbying on behalf of
third parties to indicate the names of their clients. When registering,
interest representatives must sign up to a code of conduct which
has been adopted by the European Commission.” The code sets out
the following general principles: “openness, honesty and integrity
– which should guide the activities of interest representatives
when they are dealing with the European Commission. The code also
formulates seven clear rules of behaviour that interest representatives
are expected to respect.”
45. Clearly, the opening of a European Commission lobby register
constitutes appreciable progress towards the standardisation of
lobbying at European level, which makes it possible to strengthen
the culture of dialogue and consultation with parties concerned,
enhance transparency and improve the often negative image of lobbies
in public opinion.
46. It is important to note that lobbies’ views on the establishment
of the register differ. While public affairs consultancies consider
that NGOs have a steadily increasing impact on political decisions,
NGOs themselves do not see themselves as lobbies.
47. It is also important to note that inclusion in the register
is not compulsory, but optional. Those who are registered, however,
will have the advantage of being able to take part in online consultations
that the Commission organises, quite apart from the fact that inclusion
of an organisation in the register can improve its image and credibility
in the eyes of the public.
48. As for whether there should be a separate register for the
European Parliament or a single register for the two institutions,
Commissioner Kallas is pleased that the European Parliament has
proposed “a joint working group to set up [the latter type of] register
as soon as possible”.
49. The Council of Europe’s rules on relations with interest groups
are not explicit. Relevant provisions are dispersed in a number
of internal staff regulations and the Statute (Articles 36, 40,
as well as the Statutory Resolution (51) 30 as regards relation
with intergovernmental and non-governmental international organisations)
or codified in several texts adopted by the organs of the Organisation
(the Committee of Ministers and the Parliamentary Assembly).
50. The Rapporteur welcomes in particular the adoption by the
Assembly of Resolution
1554 (2007) on “Conflict of interests” of Assembly members. We should
also single out the Committee of Ministers’ Resolutions (2003) 8
and 9, respectively on “Participatory status for international non-governmental
organisations with the Council of Europe” and on “Status of partnership
between the Council of Europe and national non-governmental organisations”.
4. The experience
of certain member States of the Council of Europe
51. In Germany, lobbying tends to be perceived as a somewhat
opaque process whereby improper influence on policy making is sought.
Therefore relations between government and private actors (such
as businesses, churches or trade unions) are almost never referred
to as lobbying. The German Bundestag is among the few parliaments
in the EU that has specific rules on the registration of lobbyists.
52. Each year interest groups wishing to approach parliament and/or
the federal government in order to defend their views must register
by submitting information on their name, headquarters, composition
of the board of management and directors, field of interest, number
of members and names and addresses of their representatives, but
no financial information is requested for registration purposes.
53. Moreover, as the register is limited to trade unions and professional
organisations, various individual corporations that might lobby
do not have to register. The register is published online and the
whole procedure is overseen by the President of the Bundestag. When
registered, interest representatives have access to buildings and
may participate in the preparation of federal legislation (but cannot
be heard by parliamentary committees).
54. At the same time, the parliament can invite organisations
that are not on the register to provide information on an ad hoc
basis and makes it quite clear that consultation with interest groups,
especially professional associations, is an essential part of the
legislative process. As this consultation might take place at a
very early stage (once a first draft bill is prepared by civil servants),
interest representatives may learn about a bill being prepared even
sooner than parliamentarians themselves and thus influence the initial
draft proposals. In addition to rules on registration, the Basic
Law of the country specifies that federal ministries should only
co-operate with national federations and representative organisations.
55. There are also several relevant codes of conduct for the executive,
parliamentarians and civil servants that require the reporting of
various gifts, travel expenses, any additional income, campaign
and party fundraising, as well as membership in external bodies.
Several country-wide lobbyist entities, such as the Deutsche Gesellschaft
für Politikberatung (German Association of Political Consultants)
and the Deutsche Public Relations Gesellschaft (German Public Relations
Society), have their own voluntary codes of conduct to which all
their members are encouraged to adhere. Each of the 16 German Länder
has own rules on lobbying which are largely similar to those of
the federal level.
56. In France, there have been numerous recent initiatives to
make lobbying more transparent, and even to regulate it by passing
a law. A motion for a resolution designed to amend the French National
Assembly’s rules of procedure has been tabled in the Assembly.
57. Lobbying has very negative connotations in France. London’s
campaign to be allowed to host the 2012 Olympic Games and the reactions
of the media and politicians showed that public opinion still had
a very negative image of lobbying, even though nobody contested
the legitimacy of the vote of the members of the International Olympic
Committee.
58. On 16 January 2008 the National Assembly Committee on Economic
Affairs, the Environment and Regional Affairs examined an information
report on lobbying, the main proposals of which are as follows:
- promote properly conceived lobbying in France;
- adopt a definition of lobbying;
- draw up a code of ethics setting out a number of rules concerning lobbies’ attitudes;
- set up a parliamentary register of lobbies;
- organise consultations with lobbies before legislation is discussed;
- publish a directory of parliamentarians according to specialisation.
59. Since 1991, there has been a French association of lobbying
and public affairs consultancies (Association française des conseils
en lobbying et affaires publiques – AFCL) covering the main consultancies operating
in France. The AFCL has a code of ethics for its members.
60. On 9 October 2008, 18 trade unions and associations appealed
to the French National Assembly for a law clarifying the links between
elected representatives and lobbies.
61. In Poland,debate on
lobbying regulations took place against the background of widespread
public mistrust of state institutions and the way democracy worked.
Public opinion surveys revealed that a majority of Poles associated
lobbying and interest representation with corruption, illegal campaign
financing, a favouritism and opaque decision making. In response
and as part of the EU accession process, the Polish Parliament took regulatory
steps in July 2005 by adopting the Act on Lobbying in the Legislative
Process which came to supplement the existing general rules regarding
access to documents, consultation procedures, conflict of interests,
asset declaration, internal control mechanisms in public administration,
public procurement and the like.
62. The act sets out framework rules of the game for lobbyists,
their supervision, register (of professional lobbyists) and sanctions
for violating the act’s provisions. Under the act, lobbying is defined
as any activities pursued by any legally permissible means and aimed
at exerting influence on public authorities involved in the legislative
process. The Council of Ministers is requested to publish its legislative
work programme with information on draft bills, aims pursued and
solutions sought, institutions and officials involved and any documents
relating to work on the draft bills in question.
63. The act also introduces the institution of a public hearing
as a means of consulting stakeholders throughout the legislative
process. The register of professional lobbyists was designed to
contain, amongst other things, accounts on lobbyists’ activities
for preceding years and information on the staff of parliamentary clubs.
64. Although Polish lobbyists are still in the early phase of
organisation, there is an association of professional lobbyists
in Poland (Stowarzyszenie Profesjonalnych Lobbystów w Polsce – SPLP)
which developed a code of professional ethics towards the self-regulation
of its members. However we should also note that the Act on Lobbying
is not sufficiently explicit on the role and duties of non-professional
lobbyists such as business associations or NGOs.
65. Lobbying in the United Kingdom has a long tradition. It is
estimated to be worth about £ 1.9 billion and employ some 14,000
people. This activity has grown significantly in the last decade
and continues to evolve in a self-regulatory system headed by the
Association of Professional Political Consultants (APPC) and the
Public Relations Consultants Association (PRCA) that group only
professional lobbyists. Both associations maintain membership directories
and have codes of conduct. Member organisations are requested to
list the names of their clients and their consultancy staff but
there is no incentive to register and experts say that companies
will only register and disclose information in full if it is in
their commercial interest to do so.
66. The political establishment of the United Kingdom has been
shaken up in the last two years by the so-called ’sale of peerages’
scandal concerning the connection between political donations and
peerages. As, in accordance with the electoral law, even small sums
donated to a political party have to be declared as a matter of
public record, several politicians have been accused of circumventing
the law after they offered substantial undeclared contributions
in the form of loans (even for an indefinite duration) in exchange
for nominations for a life peerage.
67. As a result, in June 2007 the British Public Administration
Select Committee launched an investigation into the lobbying industry.
The inquiry seeks to address “the transparency of the lobbying industry,
the effectiveness of recent attempts at self-regulation, and whether
the rules for those in Parliament and government should be changed”.
68. On 22 May 2008, Mr Michael Meacher, Member of the House of
Commons and former United Kingdom Environment Minister, tabled an
Early Day Motion (EDM) calling for transparency in
lobbying, which was signed by over 130 members of parliament, including
10 members of the United Kingdom delegation to the Assembly.
calling for transparency in
lobbying, which was signed by over 130 members of parliament, including
10 members of the United Kingdom delegation to the Assembly.69. The motion’s signatories expressed concern about the transparency
of lobbying. They are convinced that greater transparency in lobbies’
relations with members of parliament is needed to restore public
trust in Parliament. Accordingly, they suggest setting up a register
of individuals and organisations involved in lobbying and the introduction
of an enforceable code of ethics for members of parliament and civil
servants.
70. In November 2008, the British Public Administration Select
Committee and the Alliance for Lobbying Transparency organised a
hearing on lobbying in the House of Commons. The participants raised
the following issues: the need for greater lobbying transparency,
particularly in the case of lobbying by big business; the need to
introduce a lobby register in the House of Commons; the trend in
certain countries towards the regulation of lobbying, including
regulation by law; and lobbying by trade unions, NGOs and other organisations.
71. Then, in January 2009, a Sunday Times investigation revealed
that four members of the House of Lords were proposed to accept
fees to amend laws on behalf of business clients, in clear breach
of the “no paid advocacy” rules which stipulate that no member may
accept a financial inducement as an incentive or reward for exerting
parliamentary influence.
72. In Hungary, Parliament passed a Lobbying Act in September
2006 to regulate the impact of the activities of various pressure
groups on governance. The Act describes lobbying as a paid activity
designed to influence government policy or legislation. It sets
up a register, and registration is compulsory for individuals engaged
in lobbying but voluntary for lobbying organisations.
73. Every three months lobbyists must submit a report listing
the Executive’s decisions that were the target of their efforts,
the means used, the names of civil servants or persons in positions
of responsibility they contacted and the names of their employers.
74. Sanctions vary, from being struck off the register for a period
of one to three years to a fine of up to € 40,000. There are very
few reports of meetings, however, because both lobbyists and those
being lobbied agree not to report them.
75. The term "lobbying" has negative connotations, which is why
many lobbying organisations do not consider themselves as such.
76. In 2001, having set up a Central Ethics Committee,Lithuania introduced a lobby register.
It is compulsory to register in order to have the right to lobby.
Information about lobbies is available in the supplement to the government’s
Official Gazette, “Vastybes Zinios”.
77. In 2003 and 2006, Parliament amended the Lobbying Act several
times to also include non-profit-making lobbying organisations.
The amended Act governs all types of lobbying.
5. General conclusions
78. The rapporteur is convinced that, in a democratic
society, citizens are entitled to know the identity of the lobbying
organisations which influence political decision-making and voting
by members of parliament. Greater transparency of lobbying activities
can make political players even more accountable and restore public confidence
in government authorities’ democratic functioning. This transparency
is an effective means of combating the risk of a loss of trust in
politics and in democracy.
79. It can be seen that at both national level, within Council
of Europe member states, and European level, within the European
institutions, lobbying has become a necessary and virtually day-to-day
activity, which is in full expansion. This inevitably requires regulation.
With the European unification process and EU enlargement a strong
increase in lobbying activities has also been observed in both Brussels
and Strasbourg.
80. The rapporteur has noted that both the United States and Canada
have taken steps to regulate lobbying activities. The member states
of the Council of Europe can draw many interesting lessons from
these two countries’ lawmaking experience in this field and the
problems encountered in applying their legislation. However, there
is no single solution to all the questions raised by lobbying activities,
which are not always comparable.
81. Attention can be drawn to the following principles that apply
to the regulation of lobbying activities in the United States and
Canada:
- public reporting in matters of lobbying;
- the categories of lobbyists;
- the obligation to register;
- the content of obligatory disclosures;
- the principle of potential conflicts of interest and the two-year ban on performing lobbying activities after leaving office.
82. It is clear that greater transparency regarding lobbyists’
identities and activities could increase public confidence in politicians’
integrity. In this connection, it can be pointed out that an opinion
poll conducted in the United States showed that nearly 90% of Americans
consider that Washington has a serious political corruption problem.
It is probably not by chance that one of the very first measures
taken by the new US President Barack Obama on 21 January 2009, just
after his investiture, concerned the problem of lobbying in the
US government.
83. As for the European Union and other European institutions,
with the successive waves of enlargement, Brussels has become a
governance and decision-making hub. Nowadays, it is estimated that
over 15,000 special-interest groups are active in Brussels, more
than 2,600 of which have their own offices there and perform lobbying
activities with regard to the EU institutions.
84. It can also be noted that the European Parliament was the
first European institution to decide to regulate lobbying of its
members. A lobbyists register has been created and a code of ethics
has been introduced, with which lobbyists are expected to comply.
However, this code is rather general in nature and lays down minimal standards
which are hard to measure and to supervise. In the event of a breach
of the code of ethics, the only sanction that can be taken against
a lobbyist is withdrawal of his/her pass, which is a very rare occurrence.
85. It can consequently be seen that, compared with the rules
in force in the United States and Canada, the European Parliament’s
requirements are relatively lax. On the other hand, the European
Commission has made considerable progress in its work on the regulation
of lobbying. On 23 June 2008 it opened a first register of European
lobbyists. The rapporteur considers that the introduction of this
register is an important step since it allows a standardisation
of these activities at European level, reinforces the culture of
dialogue and consultation, enhances transparency and will also in
the long run improve lobbyist negative public image.
86. As regards Council of Europe member states, surveys have shown
that 14 countries have, in one way or another, either regulated
lobbying or begun to discuss the issue within their parliaments.
In view of the diversity of the member states’ experience, the different
states of progress of the work in this area and the US and Canadian
wealth of experience in this field, the rapporteur is convinced
that the Council of Europe could propose to its member states that
consideration be given to drawing up a European code of good practice
in lobbying matters based on the following principles:
- adopting a very clear definition of lobbying;
- enhancing transparency in the field of lobbying;
- laying down rules applicable to political officials, civil servants, members of pressure groups and business undertakings;
- setting up registers of all persons involved in lobbying activities;
- holding prior consultations with lobbying organisations on any proposed legislation in this field;
- encouraging well-defined, transparent, honest lobbying which could raise the public profile of persons involved in these activities.
87. Citizens have a democratic right of access to political decision-makers
so as to provide them with information and attempt to influence
their decisions. However, this access or this lobbying possibility
must be fair and equal, completely transparent and governed by clear,
democratic rules. If citizens do not believe that they can have
a real influence on political decision-makers, democracy may be
undermined.
88. In recent decades we have seen a dramatic decline in public
confidence in politics in many Council of Europe member states.
The dearth of transparency in political lobbying activities can
be deemed to constitute one of the causes of this.
Appendix – Table showing the regulation of lobbying in certain Council of Europe member states
(open)|
Country |
Regulation |
Distinctive features |
|---|---|---|
|
Austria |
No |
Economic interest groups such as employers’ organisations and trade unions have a significant input into the making of law in the context of the “social partnership”. They are consulted during the law-making process. |
|
Denmark |
No |
“Unwritten traditions” are respected. Interest groups must be registered with the committee they lobby and may address a standing committee. |
|
France |
No |
On 16 January 2008 the Economic Affairs, Environment and Regional Affairs Committee of the National Assembly examined an information report on lobbying. On 9 October 2008, 18 trade unions and associations appealed to the National Assembly for a law clarifying the links between elected representatives and lobbies. |
|
Germany |
Yes |
The German parliament is one of the few parliaments in Council of Europe member states to have specific rules on the registration of lobbies. There is a register for trade unions, professional organisations and individual companies. |
|
Greece |
No |
The concept of lobbying does not exist in Greek law. |
|
Hungary |
Yes |
A Lobbying Act setting up a register was passed in September 2006 with the creation of a register. |
|
Ireland |
No |
There is a code of good practice. |
|
Italy |
No |
There were attempts to introduce legislation in the 1980s, and there is now pressure to introduce a register of lobbies. |
|
Lithuania |
Yes |
A law setting up a register of lobbies was passed in 2001. |
|
Luxembourg |
No |
The Chamber of Deputies, a parliamentary committee or members of parliament may hear lobbies on their own initiative or at the latter’s request. |
|
Netherlands |
No |
Lobbies may obtain passes providing access to Parliament, which are valid for between one day and one year. They may contact members of parliament, attend meetings and consult documents. |
|
Georgia |
Yes |
A law requiring professional lobbies to register was passed in 1998. |
|
United Kingdom |
No |
On 22 May 2008 Mr Michael Meacher, Member of the House of Commons and former United Kingdom Environment Minister, tabled an Early Day Motion (EDM) calling for transparency in lobbying, which was signed by over 130 members of parliament. On 5 November 2008 the British Public Administration Select Committee and the Alliance for Lobbying Transparency organised a hearing on lobbying in the House of Commons. |
|
Poland |
Yes |
In 2005 Poland passed a law setting out framework rules governing lobbying, its supervision, the registration of professional lobbies and sanctions in the event of an infringement of the law. |
***
Reporting committee: Committee on Economic Affairs and Development
Reference to committee: Doc. 11105, references No. 3306 of 22/01/2007 and No. 3335 of 16/04/2007
Draft recommendation adopted by the committee on 18 May 2009
Members of the committee: Mr Márton Braun (Chairperson), Mr Robert Walter (1st Vice-Chairperson), Mrs Doris Barnett (2nd Vice-Chairperson), Mrs Antigoni Papadopoulos (3rd Vice-Chairperson), MM. Ruhi Açikgöz, Ulrich Adam, Pedro Agramunt Font de Mora, Roberto Antonione, Robert Arrigo, Viorel Riceard Badea (alternate: Mr Traian Constantin Igaş), Zigmantas Balčytis, Mrs Veronika Bellmann, MM Radu Mircea Berceanu, Vidar Bjørnstad, Luuk Blom (alternate: Mr Tuur Elzinga), Mrs Maryvonne Blondin, MM. Predrag Bošković, Patrick Breen, Erol Aslan Cebeci, Lord David Chidgey, Mrs Elvira Cortajarena Iturrioz, MM. Valeriu Cosarciuc, Joan Albert Farré Santuré, Relu Fenechiu, Guiorgui Gabashvili, Marco Gatti, Zahari Georgiev, Paolo Giaretta, Francis Grignon, Mrs Arlette Grosskost, Mrs Azra Hadžiahmetović, Mrs Karin Hakl, MM. Norbert Haupert, Stanisław Huskowski, Ivan Nikolaev Ivanov, Igor Ivanovski, Čedomir Jovanović, Mrs Nastaša Jovanović, MM. Antti Kaikkonen, Oskars Kastēns, Emmanouil Kefaloyiannis, Serhiy Klyuev, Albrecht Konečný, BronisławKorfanty (alternate: Mr Piotr Wach), AnatoliyKorobeynikov, Ertuğrul Kumcuoğlu, Bob Laxton, Harald Leibrecht, Mrs Anna Lilliehöök, MM. Arthur Loepfe, Denis MacShane, Yevhen Marmazov, Jean-Pierre Masseret, Miloš Melčák, JoséMendes Bota, Attila Mesterházy, Alejandro Muňoz Alonso, Mrs Olga Nachtmannová, Mrs Hermine Naghdalyan, MM. Gebhard Negele, Jean-Marc Nollet, Mrs Mirosława Nykiel, Mr Mark Oaten,Baroness Detta O’Cathain, Mrs Ganira Pashayeva, Mrs Maria Pejčinović-Burić, MM. VictorPleskachevskiy, Jacob Presečnik, MM. Maximilian Reimann,Andrea Rigoni, Mrs Maria de Belém Roseira (alternate: Mr MaximianoMartins), MM. Kimmo Sasi, Giuseppe Saro, Hans Christian Schmidt, Samad Seyidov, Steingrímur J. Sigfússon, Leonid Slutsky, Serhiy Sobolev, Christophe Steiner, Vyacheslav Timchenko (alternate: Mr Nikolay Tulaev), Mrs Arenca Trashani, Mr Mihai Tudose, Mrs Ester Tuiksoo, MM. Oldrich Vojir, Konstantinos Vrettos, Harm Evert Waalkens, Paul Wille, Mrs Maryam Yazdanfar (alternate: Mr Göran Lindblad)
N.B.: The names of the members who took part in the meeting are printed in bold
Secretariat to the committee: Mr Newman, Mr de Buyer, Mr Chahbazian, Mr Pfaadt.