30 September 2012.
LOBBYING REGULATION:
RESPONSE TO POLICY PROPOSALS
INTRODUCTION
1.
I should like to begin by congratulating DPER officials most sincerely for the
thorough and thoughtful approach they have demonstrated during the process of developing
these policy proposals, and most particularly for their commitment to transparency in the
consultation exercise. The policy proposals published in July 2012 are generally excellent,
and offer a clear and welcome balance between recognising the positive contribution
lobbying makes to our democracy and articulating why – and how – lobbying regulation will
protect and enhance public confidence in the policymaking process.
2.
Before I respond to the specific questions posed in the document prepared following
the Farmleigh seminar, I wish to make some general observations about the submissions to
the original consultation paper. In addition, although the post-Farmleigh document does
cover many of the most important issues, it does not specifically seek views on the role of the
regulator which is a subject I do address here. Naturally, should officials find it useful to
receive additional information or comment on any specific point raised in this response, I
would be more than happy to be contacted.
REFLECTIONS ON PREVIOUS SUBMISSIONS
3.
The number of responses received to the Department’s original consultation paper in
February, and the fact that they came from such a wide range of organisations, was
encouraging and testament in itself to the Department’s willingness to engage actively with
the issue. That said, however, I believe that too many of the responses were too selfinterested, and raised spurious objections. Thus, several charities and trade associations were
happy for commercial lobbyists to register but do not regard their own efforts in the same
light. Other respondents appear willing to register only the most basic information. Some
seek to assert that they themselves are ‘advocates’ rather than ‘lobbyists’. Charities did tend
to make the reasonable point that their particular status with the Revenue Commissioners
does create genuine difficulties as regards what is defined as lobbying, but the government
can find a balanced solution which recognises both ongoing charitable status and ongoing
legitimate lobbying by those bodies. However, some of the other concerns which have been
raised by respondents are, frankly, less principled.
4.
Among the objections voiced which, in my view, are little more than ill-disguised
attempts to thwart significant and necessary reform are the following:
Age Action suggests that only organisations, and not individuals, should be required
to register because while its “staff, volunteers and members regularly raise issues”
with policymakers, none of these people “has a dedicated role as a public policy
advocate”. Aside from the fact that the government intends that only professionals
should register thus imposing no obligation on volunteers, it is disingenuous to
suggest that only those professionals who spend 100% of their time on lobbying ought
to be regarded as lobbyists.
Some professional bodies argue that they should be exempt from registering as it is
clear on whose behalf they act. While that is true, it is equally clear that when a
company lobbies, it does so on its own behalf – should corporate in-house lobbyists
also be exempted? Would we believe that if every lobbying consultancy was simply
obliged to list all its clients on its website that that in itself provides us with all the
transparency we need since we would then know on whose behalf a consultancy acts?
In any event, simply knowing who lobbies tells us nothing about who they lobby or
on which issues.
Several groups assert that registration would impose an excessive administrative or
financial burden. This is nonsense in my view. Those lobbyists who file an annual
return of the activities may indeed find it burdensome, but all could comfortably set
aside 5 minutes each day to keep their returns up-to-date. The UK House of
Commons Public Administration Select Committee concluded that, “If sensibly
framed, regulation would simply require those involved in the process of lobbying to
Page 2 of 32
provide information which should already be in their hands”.1 Most lobbying
organisations presumably already hold the records of their lobbying activities and
expenditure in the normal course of their internal operation and accounting. It is likely
that the time involved in preparing this information in whatever form would be
specified by a new regulatory regime would not be onerous – and certainly the
benefits to wider accountability and transparency disproportionately outweigh the
costs to each lobbying organisation.
Some charities insist that their ‘advocacy’ is somehow different from companies’
‘lobbying’. I believe it would be misguided to simply assume that lobbying by
charities is inherently ‘good’ and lobbying by corporate interests is inevitably ‘bad’.
The government can find a balanced solution which recognises both ongoing
charitable status and ongoing legitimate lobbying by those bodies, crucially without
treating the lobbying done by charities as qualitatively superior to that undertaken by
companies. Certainly, the tax system in other jurisdictions treats charities differently
from companies, but both are required to register as lobbyists.
A number of organisations favour the introduction of a registration system along the
lines of the EU Transparency Register. That system is widely regarded by many
practitioners and academics as a sham. It is regulation of the lowest common
denominator, providing a weak façade of openness without much substance. As a
voluntary system, it is hopelessly inadequate to the needs and expectations of a
modern democracy. I would counsel officials to pay particular attention to the low
participation rate in that system.
A professional association sought to argue that such bodies ought to be exempt from
registration on the basis that it does not lobby for direct reward. However, all such
associations certainly lobby on behalf of material advantage for their members, as do
trade unions. The current policy proposals are rightly clear both that “however
altruistic the lobbying activity the public interest imperative is that it should be
transparent” and that the allocation of funding to one government programme has an
impact on the funding available to other programmes.2
1
Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall – Volume I
Report,
HC
36-I,
p.
41.
London:
The
Stationery
Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36i.pdf>
2
Department of Public Expenditure and Reform (2012) Regulation of Lobbying: Policy Proposals, p. 9. Dublin:
DPER.
Page 3 of 32
It has been asserted that organisations such as charities, unions and trade associations
already place their submissions on publically-accessible websites, and that therefore
these representations do not need to be disclosed further. I personally doubt whether
any organisation of any type makes all its lobbying material freely available in a
timely fashion. In any event, my own view is that while such voluntary disclosure is
welcome, it is therefore not onerous for that information to be recorded in a
centralised database. Precisely the same is true of that information which
organisations provide at the request of policymakers, such as through giving evidence
to an Oireachtas committee.
Some respondents alleged that regulation could impinge upon the ordinary right of the
citizen to contact their elected representatives. This is something of a smokescreen in
my view – I know of no evidence from any nation with lobbying regulation that this
has actually occurred. All that is required is that the statutory definitions of ‘lobbying’
and ‘lobbyist’ are written clearly so that citizens acting on their own behalf are
explicitly excluded from the scope of regulation.
A number of groups argued that statutory regulation of lobbying such as exists in the
United States will result in the creation of a ‘compliance industry’ in the Irish
lobbying industry. In fact, it is necessary to draw two crucial distinctions when
discussing US lobbying regulation: (1) most of the perceived scandals associated with
US lobbying are actually centred around campaign financing rather than lobbying
practices; and (2) lobbying scandals in the US occur because the rules there are
deliberately broken by corrupt practitioners and politicians, not because the rules
(which are complied with by almost all lobbyists) are inadequate. Lobbying
regulations in the US are quite explicit and straightforward, with the vast bulk of
compliance issues arising from campaign funding regulation. While it is true that no
form of regulation can entirely prevent the possibility of unethical conduct, lobbying
regulation certainly can reinforce standards of behaviour and accountability across the
industry as a whole and, not incidentally, ensure that those who do choose to
transgress are subject to substantial punishment.
Several organisations sought to distinguish between the lobbying which others
undertake, and the purely neutral information provision in which they are themselves
engaged. This distinction, in my view, is almost wholly without foundation. In
debates over public policy, the meaning and implications of virtually all useful
Page 4 of 32
information is subjective. My facts are very different from those of my opponent; her
information is my misinformation.
The Public Relations Consultants Association asserts that the registrar “should not be
a regulator for the industry”, on the basis that the directors of PRCA firms are
individual members of the Public Relations Institute of Ireland and are thus bound by
its code of conduct. Even if one assumed that the PRII’s code of conduct was in any
way meaningful or substantive, the PRCA’s logic seems to me to ignore the
significant question of how the rest of the lobbying industry is to be regulated.
5.
Two responses submitted to the consultation seem to me to be particularly
unconstructive and so I address them in some detail separately:
The Public Relations Institute of Ireland produced a submission which strikes me as
short-sighted and unpersuasive in the extreme. On a personal level, as a member of
the PRII’s National Council (2000-2005) and its Executive Committee (2002-2005)
and as Chair of its Education Sub-Council (2002-2005), I regret that the PRII
continues to push for minimal lobbying regulation. Indeed, I have previously
published my views as to the shortcomings of the PRII’s approach to this issue over
the last decade.3 The PRII’s attitude is so divergent from my own on such a
fundamental matter of professional integrity that I now find myself unable to
continue within the PRII and thus will not be renewing my membership which
expires at the end of October 2012. Unfortunately, while it is possible that the PRII
may be representing the views of a majority of its members, the group no longer
represents even an approximation of my interests as I believe that it is engaged in a
last-ditch effort to avoid rigorous and meaningful oversight of lobbying. The PRII
has had ample opportunity over the last decade or more to offer leadership by
encouraging professional lobbyists to engage critically with their practice, with the
policymaking community and with the general public, so as to promote the highest
ethical standards and defend the reputation of practitioners. From my perspective, it
has consistently failed to do so. In its submission, the PRII appears to hold the view
that primary responsibility for any shortcomings in the lobbying process lies with
public officials. While I fully agree that it is necessary to regulate the conduct of
3
McGrath, C. (2011) ‘Lobbying in Ireland: A Reform Agenda’, Journal of Public Affairs, 11(2), pp. 127-34.
McGrath, C. (2009) ‘The Lobbyist with “Balls of Iron and a Spine of Steel”: Why Ireland Needs Lobbying
Reform’, Journal of Public Affairs, 9(4), pp. 256-71.
Page 5 of 32
policymakers, I find it disappointing that the PRII is not more willing to emphasise
the industry’s responsibility. The PRII even states explicitly that, “Ireland does not
have a lobbying industry.” I cannot agree with such an assertion – indeed, as noted in
the final bullet point of the previous paragraph, even the PRII’s sister organisation,
the PRCA, accepts that there is an Irish lobbying industry. The government’s current
policy proposals are concerned not with any so-called ‘lobbying culture’ whereby
individual citizens buttonhole their local TD in the street about local or personal
issues, but rather are intended to address the lack of transparency at the heart of our
democratic policymaking process as often substantial and well-resourced interest
organisations collide. The PRII further insists that the government has produced its
policy proposals without having adequately considered the nature of either the
problem or the solution. Frankly, that seems to me to be a difficult position to
sustain, given the academic research which government has commissioned in recent
years; given the amount of time and effort dedicated to this issue by officials; and
given the extent of the insights which have been gathered from published work,
consultation exercises, and the experiences of lobbying registration schemes in other
jurisdictions. Moreover, the PRII submission contains assertions which are difficult
to reconcile together – for instance, it states on the one hand that “access to policy
makers is not that difficult to achieve” in Ireland and notes the “relative ease of
access to public representatives and officials”, yet goes on to insist that lobbying here
“is a result of the opaque and unresponsive nature of some elements of the public
service and political process”. Similarly, the PRII asserts that the “time spent [on
lobbying activities] is irrelevant and should form no part of the regulations” but then
goes on to insist that even people who may not regard themselves as lobbyists such
as trade union leaders ought to be required to register because “a significant
proportion of their time and effort” is spent on lobbying. Worryingly, the PRII at one
point discusses “the right of the citizen – corporate, voluntary or private – to access
both public representatives and public servants”. This suggestion that government
should recognise some notion of ‘corporate citizen’ in relation to lobbying
registration is profoundly unhelpful. Nothing in the government’s policy proposals
would limit or impinge on the right of private citizens to contact policymakers on
their own behalf; the position of companies, charities, professional associations, trade
unions and so on is – and should be – of a quite distinct nature from that of private
citizens, yet the PRII seeks to lump these disparate categories together.
Page 6 of 32
Disappointingly, though unsurprisingly, the PRII favours a registration system
modelled on the EU Transparency Register. The Transparency Register appears
attractive to some because: (1) it is voluntary and thus most lobbyists can simply
choose not to register, so that only 20-30% of Brussels lobbyists appear on the
Transparency Register; (2) it is based on organisational rather than individual
registration; (3) it is associated with an access pass facilitating entry to governmental
institutions; (4) it has only very weak enforcement mechanisms; (5) it covers only
direct communication with policymakers and not the background monitoring or
strategic advice which make up the vast bulk of a lobbyist’s daily activities; (6) its
euphemistic title allows lobbyists not to describe themselves as such; (7) it does not
involve a registration fee; (8) it fails to adequately specify precisely what financial
information should be disclosed, so each organisation must decide for itself what
income and expenditure to include with the result that it becomes impossible to
verify entries or compare one organisation against another; (9) it is associated with a
relatively weak code of conduct; and (10) it is updated only on an annual basis. It is
precisely because the Transparency Register is so weak and compromised on all
these points that it should not be used as an exemplar for the drafting of a registration
and regulation framework in Ireland. Finally, the PRII’s consistent hostility to
substantial reform in this area is underlined by its suggestion that a new system
should be introduced for up to five years before being placed on a statutory basis.
Statutory regulation can certainly include provision for a review process, but I
believe that to argue for non-statutory regulation reveals a profound opposition to
meaningful reform. In order for lobbying in Ireland to develop from being the
diverse and vibrant industry which it is to become a recognised and accepted
profession, lobbyists themselves must become more secure in their professional
identity. Professionalisation is more than simply individual practitioners doing their
jobs well, as most lobbyists do. It additionally involves an infrastructure of norms,
values, and organisations. Nor can professionalisation ever be fully achieved without
a recognition by the general public of the contribution which lobbying makes to
society. Again, that requires representative bodies to begin to inform and educate the
public much more proactively than they currently do. I believe that Irish lobbyists
need to band together in a new umbrella organisation which is specific to their needs
and interests, rather than continue within the broader scope of the PRII.
Page 7 of 32
The Irish Farmers’ Association has produced a response which is in some ways even
more intransigent than that of the PRII.
I find it extraordinary that such an
organisation is prepared to submit to government two documents (dated February
2012 and 27 July 2012) so patently provocative and defiantly dogmatic. I can only
urge officials and Ministers to treat the IFA’s bluster with the contempt and disrespect
which the IFA itself shows, and to emphasise to the IFA that it will be compelled to
comply fully with whatever statutory framework is enacted. The IFA asserts that all
its lobbying material is accessible either on its website or through Freedom of
Information requests: there ought therefore to be absolutely no difficulty in ensuring
that all such documents are made more easily available to the public through a
centralised lobbying registration database. As with some other organisations, the IFA
seeks to make what in my view is an entirely spurious argument that the lobbying
undertaken by trade associations/representative bodies is somehow qualitatively
different (and by implication, somehow ‘better’ or ‘more worthy’) than that pursued
by corporations or consultancies. It would I believe be wholly misguided for the
government to frame a registration scheme in this way – a level playing field is only
possible if all sectors of the lobbying industry are exposed to the same degree of
transparency. Both submissions produced by the IFA are replete with its own preemptory demands, which no apparent acknowledgement that the government may
well choose to go beyond the minimal standards the IFA is willing to accept. The IFA
is “strongly opposed” to disclosing more than a list of its national officers and
relevant staff and a boilerplate statement about the organisation’s background. It
intends to “strongly resist” any requirement that direct contact between its
officers/staff and policymakers be recorded. It is unwilling to pay any registration fee,
preferring instead to place the entire financial cost on the Irish taxpayer. It is only
prepared to make an annual return, and if more frequent updates are required, the IFA
believes that responsibility for making disclosure reports should fall on policymakers
rather than lobbyists. The IFA believes that it is impossible for organisations to report
the grassroots lobbying efforts undertaken by ordinary members at a local level, but
fails to acknowledge that it is quite practicable that those national officers and staff
who direct and stimulate such activity could easily declare their involvement in such
lobbying. The IFA, like other bodies, seeks to limit transparency by suggesting that
the system should be based on organisational rather than individual registration. It
asserts a distinction between “liaison on technical issues” and “issues of policy or
Page 8 of 32
financial benefit”, which I believe would provide an unlimited loophole in reporting
requirements. The same is true of the situation which the IFA describes in which
“some issues on which lobbying takes place are not recorded because of genuine
oversight” – although I suspect that most organisations would find it worthwhile to
develop tighter internal reporting systems if the regulator had an adequate range of
graduated sanctions available such as fines, naming and shaming, and suspension
from the register. Personally, I find it disappointing that such a prominent socioeconomic interest group as the IFA adopts such a hostile and dismissive attitude to
much-needed openness at the heart of our democratic policymaking process, and
seeks not to provide government with reasonable and equitable solutions but rather to
dictate to government the minimal steps which the IFA is reluctantly prepared to
concede.
6.
There were, of course, notable exceptions to the pattern of self-interested and
obstructive responses described above, in that some bodies produced suggestions which have
tremendous potential to shine much needed light on the lobbying process:
ASH Ireland, for instance, argued that a lobbying register should list the particular
issue on which an organisation lobbied; that organisations ought to be obliged to
“provide research and/or specific justification for courses of action they wish the
government to take”; and that policymakers who persist in meeting national
organisations in their constituencies should still have to record those contacts
centrally.
Cúram suggested that registered lobbyists ought to be obliged to public information
regarding their funding; that both lobbyists and policymakers should declare meetings
so that a cross-check can be made to verify the accuracy of disclosure; and that the
registration system should incorporate incentives so that registrants might receive
notice of government consultations and so on.
The Department of Jobs, Enterprise and Innovation noted the importance of the
registration and filling process being electronic rather than paper-based.
Dr Elaine Byrne raised the possibility of introducing a dedicated website to serve as a
repository of all lobbying material. This echoes a proposal developed in the US
context by Lee Drutman, that the Library of Congress could set up an online database
of lobbying material (similar in nature to the THOMAS system which the LoC
Page 9 of 32
already operates as a legislative database). Drutnam suggests that each piece of new
legislation would have its own section on the system – lobbyists would state on whose
behalf they were acting and the organisation’s position on the Bill, and could
additionally upload supporting documentation and position statements. He foresees
the system also being used by constituents who wish to record their opinions, and by
members of Congress to explain their position on the legislation. In this way,
congressional staffers, journalists and lobbyists could easily learn about the full range
of views being expressed on any Bill. Drutman notes that, “In defending their
profession, lobbyists frequently argue that much of what they do is to make
government more effective by providing valuable policy expertise. If that is indeed
the case, lobbyists should welcome the opportunity to participate [in this database]”.4
Moreover, they could be encouraged to participate if congressional staffers and
members decided only to meet those lobbyists who were already publishing their
argumentation on the database so that it could be publically supported and challenged
by others.
Hume Brophy’s submission offers a valuable insight into the inadequacies of the EU
Transparency Register, and of the importance of an independent regulator to oversee a
mandatory register and strong code of conduct.
The Restaurants Association of Ireland reminds us that lobbying registration should
be framed in such a way that religious organisations are encompassed within it, given
the scale of the lobbying which they undertake and the obvious impact which they
have had over public policy.
POST-FARMLEIGH CONSULTATION QUESTIONS
7.
Q1 Lobbying Regulation. The ‘Issues and Questions’ paper asks about the “scope for
differentiating between different types of lobbying”. There are two elements to be addressed
in this regard. First, some organizations have attempted in their submissions (as noted above)
to suggest that the lobbying which is undertaken by professional associations, charities and
unions is different in nature to that which is undertaken by corporations and consultancies. In
my view, this distinction is entirely without merit. The aim of lobbying registration is not to
4
Drutman, L. (2011) ‘A Better Way to Fix Lobbying’, Issues in Governance Studies 40, p. 9. Washington, DC:
The Brookings Institution.
<http://www.brookings.edu/~/media/Files/rc/papers/2011/06_lobbying_drutman/06_lobbying_drutman.pdf>
Page 10 of 32
cast judgment on the relative virtues of interest organizations, but rather to enable the public
to know who is attempting to influence specific items of public policy. We do not, for
instance, need a register in order to determine on whose behalf the IFA or IBEC lobbies, but
without a register we cannot tell who an organization lobbies on which issues. I urge the
government to ensure that legislation shines equal transparency on all lobbing in Ireland by
all organisations. Second, while the academic research published by Gary Murphy, Raj Chari
and John Hogan is in my view invaluable for the level of insight it offers into attitudes held
by policymakers and lobbyists alike, I have one concern over the terminology they employ.
They label various regulatory models as ‘low, medium or high’. My own personal view is
that no feature of so-called ‘highly regulated’ systems would be inappropriate or excessive in
a new Irish system, but the distinctions between the range of models may perhaps be better
described as ‘weak, basic or meaningful’ regulation. The way in which policy is described
matters, and I would like to see officials and ministers proudly proclaiming the introduction
of ‘meaningful reform’ rather than shying away from introducing what could be described
critically as a ‘highly regulated’ system.
8.
Q2-3 Disclosure of Information. The register should be framed in such a way as to
require that information which can be provided with relative ease, and which is “of genuine
potential value to the general public, to others who might wish to lobby government, and to
decision makers”.5 Some have suggested that the sheer volume of information which could
potentially be recorded would make the system difficult to operate. I believe that this claim
serves only to highlight how important it is for our democracy that we have a comprehensive
lobbying register as soon as possible; the biggest challenge involved in that will not be for
lobbyists to provide that information but rather will be in designing a register and database
capable of storing the material in a fully searchable manner and presenting the material as
clearly as possible. In my view, the information which should certainly be disclosed would
include:
The individual lobbyist’s name, address and contact details, and those of the client or
employer on whose behalf lobbying was undertaken.
The public bodies which were lobbied: the names of all policymakers with whom a
lobbyist communicated should be disclosed in the interests of helping to hold
5
Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall – Volume II Oral
and
Written
Evidence,
HC
36-II,
p.
52.
London:
The
Stationery
Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36ii.pdf>
Page 11 of 32
government to account.
The issue which was lobbied on: it would be useful if the language used in the
government’s legislation is clear that lobbyists must record as precisely as possible
the specific issue being lobbied on (such as identifying the particular Bill or
regulation) rather than allowing lobbyists to simply record a broad policy area. Just as
consultancies have multiple clients, so too do many firms, charities and other
organisations have multiple issues on which they lobby. Transparency requires that
we know as precisely as possible the subject matter bring lobbied on.
Details of any grassroots efforts which have been directed or stimulated by the
lobbyist and his/her organisation.
Any public offices previously or currently held by each individual lobbyist.
Whether the lobbyist is a close family member (spouse, parent, child, sibling) of any
policymaker.
Details of any financial or other material contribution given by the lobbyist to a
policymaker or political party.
Details of any public funding received by the organisation being lobbied on behalf of.
9.
In addition, it would be sensible to include in the legislation some phrase such as ‘any
other matters as may be prescribed by the registrar for the purposes of enhancing
transparency and accountability in the policymaking process’, so that the capacity for the
system to evolve over time is built into the law. Other items of information which could
usefully be included in any list of the material to be disclosed include: a summary of the
lobbyist’s employment history; listing any trade associations, professional bodies or
advocacy coalitions through which the organisation undertakes any of its lobbying activities;
a summary of the lobbyist’s position on the policy item which was the subject of the
lobbying; a summary of the research and advice provided by a lobbying consultant to his or
her client; details of any expenditure by lobbyists on secondary bodies or individuals; copies
of all submissions made to policymakers; and a record of all meetings and correspondence
between lobbyists and policymakers.6 Ideally, lobbyists would at the least have the
opportunity to include in their filings copies of the actual documents used when
6
See the written evidence of the National Union of Journalists and of Spinwatch in Public Administration Select
Committee (2009) Lobbying: Access and Influence in Whitehall – Volume II Oral and Written Evidence, HC
36-II,
p.
220
and
p.
221
respectively.
London:
The
Stationery
Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36ii.pdf>
Page 12 of 32
communicating with policymakers. One interesting proposal in the House of Commons
Public Administration Select Committee report was that a register should go beyond
providing the bare details of contacts between lobbyists and policymakers, by using “diary
records and minutes of meetings” so that the public can “see what contacts are taking place,
and to reach a reasonably informed judgement as to whether decision makers are receiving a
balanced perspective from those they are meeting”.7 Integrating on a single database
lobbyists’ disclosure with material of this nature provided by policymakers would go a long
way towards meeting the OECD principle that a regulator should develop mechanisms by
which to verify entries on the register.
10.
An excessive focus on financial disclosure could encourage a view that influence over
public policy equates to money – an impression which is generally unfounded. Most
informed observers accept that lobbying effectiveness is much more directly related to
expertise, contacts and skills than to budgetary outlay. Other jurisdictions do compel
lobbyists to disclose information about either their fee income (for consultancies) or their
lobbying expenditures (for other organisations). My own view on balance is that this sort of
disclosure has not proved to be excessively commercially sensitive in the United States, and
has on occasion been crucial in identifying wrongdoing. The most infamous modern
Washington lobbyist, Jack Abramoff, first came to the attention of congressional committees
and prosecutors as a result of media exposure of the client fees he was obliged to register.8
Financial disclosure is an area where perhaps the government could consider a range of
options. It would, for instance, be reasonable to allow a lobbyist to indicate specifically those
clients for whom work was being undertaken on a pro bono basis. Some lobbyists may argue
that it would be problematic to separate out any fee income related to direct communication
with policymakers (‘lobbying’) from broader income associated with wider strategic advice,
research and communication activities (‘public affairs’). However, the definition of lobbying
I have suggested below avoids this difficulty by including the background functions in a
statutory definition of what constitutes lobbying.
11.
7
8
One of the lessons of the EU Transparency Register is certainly that if insufficient
Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall – Volume I
Report,
HC
36-I,
p.
54.
London:
The
Stationery
Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36i.pdf>
Schmidt, S. (2004) ‘A Jackpot from Indian Gaming Tribes’, Washington Post, 22 February.
<http://www.washingtonpost.com/wp-dyn/content/article/2006/03/06/AR2006030600702.html>
Page 13 of 32
guidelines are given on precisely what activities are to be registered, it then becomes very
difficult for organisations to know what to count and what not to count. Unless every
registrant is able to use a single, clear method of calculation, then the registered information
does not enable observers to make safe assumptions about an organisation’s lobbying activity
or to compare the level of activity across a range of organisations. Registration risks
becoming meaningless – or worse, misleading – unless it provides a fair representation of
who does what and with what resources. On the other hand, though, it cannot credibly be
argued that financial disclosure would hinder the competitive development of the lobbying
market – we need only look to the US to see that lobbying organisations are perfectly able to
supply financial information without undermining the industry. For a registration scheme to
operate with no reference whatever to financial issues ensures that critics will continue to be
dissatisfied with the extent of transparency and accountability it provides. More importantly,
though, the absence of any financial information may make it more difficult for the wider
public to have confidence in the regulatory framework. Unhelpful, and frankly inaccurate,
myths about lobbying can develop when what appears to most people to be relevant
information is not available. A total lack of financial disclosure could therefore hinder the
industry in the future as it seeks to engage more positively with public opinion and to build a
reputation for openness and accountability. I therefore suggest that all registered lobbyists
should be required to provide good-faith estimates (perhaps to the nearest €20,000) of either
lobbying income or lobbying expenditure – with expenditure defined as meaning only direct
costs (such as salaries, expenses, events, materials) and not including more indirect cost (such
as the proportion of an organisation’s office rent which is attributed to their lobbying staff).
12.
One specific issue regarding disclosure needs to be addressed. Some may argue that
there are compelling reasons which prevent lobbyists from disclosing the names of their
clients. A variety of rationales are advanced by lobbyists in this respect – that they have
confidentiality clauses in their contracts with clients; that their client has issues related to
national or personal security; that they must abide with other laws or regulations which
preclude disclosure; or that as a foreign aid charity they employ workers in authoritarian
regimes around the world who could be endangered if lobbying at home was publicised. The
first of these can be dealt with quite simply: all those who provide lobbying services to third
parties would simply need to add in to their contracts a clause notifying the client that all
activities were now subject to registration. Potential clients could decide whether or not they
wished to retain lobbying consultants, but under a mandatory scheme they could not hire any
Page 14 of 32
consultants who offered anonymity. A specific call for client confidentiality is raised by firms
which are themselves, or which have a client, involved in stock market activity such as
mergers/acquisitions/IPOs where disclosure of particular information is prohibited. It should,
however, be noted that lobbying consultancies and clients are able to simultaneously balance
the requirements for lobbying disclosure and financial non-disclosure in other nations such as
the United States. Law firms, which increasingly offer public affairs services, claim that they
are bound to protect their clients’ confidentiality but even here the position is not entirely
clear cut. It is true that solicitors have their own professional code of conduct and that one of
its provisions concerns client confidentiality, but exemptions from this are possible. A guide
to professional conduct produced by the Law Society of Ireland suggests that the existence of
a solicitor-client relation can in fact be publicly disclosed either through obtaining the client’s
permission for that or if disclosure is directed by the courts. It would be relatively simple to
ensure that if lawyers were required to comply with all the provisions of statutory regulation
of lobbying (including naming their lobbying clients), that legislative requirement would then
supersede the client confidentiality clause of their own professional code of conduct. It is
difficult to imagine what the national security or personal security implications can be of
simply naming an organisation as a client, but presumably it would be possible for this
eventuality to be considered as a registration scheme is developed: it may be that truly
exceptional circumstances would occasionally arise, but the registration system should be
designed around more standard circumstances. One obvious option for instance may be that
the relationship would have to be disclosed to whichever body was charged with oversight of
a lobbying register but public disclosure could be delayed for a set period of time, at the
discretion of the registrar. Any general privacy concerns of clients are more than outweighed
by the benefit to the public interest in knowing on whose behalf lobbying is being
undertaken.
13.
Q4 Naming the Person Lobbying and the Person Lobbied. I regard it as essential both
that the names of individual lobbyists are registered and that the names of individual
policymakers who are lobbied are recorded. The purpose of a lobbing register is not simply to
make the lobbying industry more transparent, but also to better enable the government to be
held to account. To take an example: if we know that Tesco lobbied the Department of
Finance, that tells us a little; if we know that Tesco’s external consultant lobbied a particular
official at the Department, that reveals something more; if we know that Tesco’s in-house
lobbyist lobbied a given official, we learn something slightly different; and if we know that
Page 15 of 32
Tesco’s corporate affairs director or CEO lobbied the Minister of Finance, that tells us even
more. Some may well occasionally find this uncomfortable, but there is a degree to which
both sides do need – in their own best interests, as well as for the sake of the ordinary citizen
– to be more willing to offer reasoned explanations of their decisions and actions.
Policymakers should not shy away from meeting lobbyists because a register exists; rather,
they should ensure that the choices they make as to which interest groups to meet on an issue
and the public policy decisions they make on that issue can be justified rationally. The notion
that complete disclosure is unnecessary because Freedom of Information procedures could be
applied by those seeking names is, in my view, unpersuasive in the extreme and merely
represents a desire to make the lobbying database less useful and usable for the consumer of
the information. Moreover, I believe that a lobbying register should require lobbyists to note
any public office they have held – that would not be possible unless individual lobbyists are
named on the register.
14.
Q5-8 Definitions. Most lobbyists work in-house rather than in consultancies; most do
not have the word ‘lobbyist’ in their job title; many will have other functions in addition to
lobbying. Many people will spend only a small fraction of their time on lobbying activities,
yet their interventions could be crucial to the outcome of a policy decision. In my view, the
government’s approach is absolutely correct: the most crucial issue is to arrive at an explicit
statement of what constitutes ‘lobbying’ – once that is established, then all those who
undertake ‘lobbying’ on a professional basis can be regarded as ‘lobbyists’. So far as the
coverage of civil and public servants is concerned, I believe that lobbying occurs when an
official with input into the policymaking process is contacted. The precise hierarchical level
of such officials may differ between government departments and other public bodies, but I
have in mind here an official at or above the level of Administrative Officer. The
fundamental point is that lobbyists are not required to register contact with an official when
they submit their passport application but are obliged to when discussing policy formulation
or implementation with a relatively senior civil servant. The government’s policy proposals
set out the broad areas in which lobbying will be said to have taken place. I support the
government’s approach in this regard, with the sole caveat that I believe it would beneficial to
also encompass the internal policy process which occurs within political parties. The current
policy proposals suggest that the staff of parties which are in government might be added to
the list of office holders. I believe that the staff of all registered political parties should be
included: lobbyists will legitimately seek to influence election manifestoes, for instance,
Page 16 of 32
which could then directly feed into Programmes for Government. The government’s policy
proposals suggest that it would be possible to provide for secondary legislation in the event
that the list of defined public officials ever needed to be revised in the future; personally, I
would suggest that the enabling legislation be drafted so as to allow the registrar/regulator to
make any necessary changes. The post-Farmleigh ‘Issues and Questions’ paper specifically
asks whether voluntary/unpaid officeholders in representative bodies, NGOs and charities
should be registered if they personally engage in lobbying. My own view is that they should,
in all circumstances.
15.
Other jurisdictions have found it problematic when they base lobbying regulation on
the concept of ‘attempting to influence policy’. Such a formulation is too vague to capture in
legislation, and thus it is preferable to base a statutory definition instead on the concept of
‘communicating in respect of policy’. However, it is crucial in my view that ‘communication’
does not only mean direct contact between a lobbyist and a policymaker but extends more
broadly to encompass the whole range of preparatory work which all lobbyists undertake
prior to actual direct communication. One of the clichés of lobbying – but no less valid for
that – is that every hour of direct contact first requires 10 hours of background research. For
instance, the UK Public Affairs Council’s definition of public affairs states that it includes the
provision of “lobbying or advice on lobbying” and “services with intent to assist lobbying,
including the provision of monitoring, public affairs and programme support, strategic
communications advice, profile raising, decision-making analyses and perception auditing
services”.9 Any legislation which is ultimately introduced would be significantly
strengthened if its scope was widened such that this type of activity was captured by the
definition of ‘lobbying’. Similarly, the APPC’s original Memorandum of Association states
that professional political consultancy is “the provision of consultancy services (meaning
advice, representation, research, monitoring or administrative assistance) predominantly
related to [government institutions] for third parties for commercial gain” [emphasis added];
of the five activities listed here, four go beyond direct communication which seeks to
influence policy.10
9
10
UK
Public
Affairs
Council
(no
date)
‘Lobbying
Definition’.
<http://www.publicaffairscouncil.org.uk/en/resources/lobbying-definition.cfm>
Association of Professional Political Consultants (1994) Memorandum of Association, p. 1.
<http://www.appc.org.uk/appc/filemanager/root/site_assets/pdfs/memorandum_of_association.pdf>
Page 17 of 32
16.
In its current policy proposals, the government has stated that lobbying should be
defined so as to “encompass all communication by individuals employed by an organisation
or acting as an officeholder of a body (other than a purely voluntary body with no
remunerated officers or employees), or receiving fees or remuneration from a third party for
making or organising or planning that communication on specific policy, legislative matters
or prospective decisions with designated public officials or officeholders”.11 I have several
particular comments to make on this approach. First, the government has I believe already
accepted that the definition should more explicitly specify that it relates to those who hold
national office in an organisation, which change I would support. Second, there are a large
number of wholly voluntary groups which nevertheless are engaged in lobbying, and it would
be useful if they too could be included on the register for the sake of completeness (perhaps
by allowing them to register without payment of any fee). Third, I believe the use of the
phrase “all communication” is important and significant, and I would urge the government
not to retreat from it by introducing a series of exemptions or exclusions. Fourth, lobbyists
working in consultancies are to be included based on the fact that they are paid for “making
or organising or planning” lobbying communications, but then that work product would not
in itself need to be registered merely any direct contact the consultant has with a policymaker.
Given that most consultants rightly regard their role as being to advise clients on how to
contact policymakers themselves, I do fear that this proposed approach might conceivably
result in all in-house lobbyists being fully registered but many consultants being able to avoid
registration by simply foregoing the relatively small proportion of the work which involves
direct representation with policymakers. I urge the government most strongly to reconsider
this, and to bring forward legislation under which both direct communication and the range of
strategic advice services noted in the previous paragraph would have to be registered. A
lobbying register which did not encompass lobbying consultancies would be a most peculiar
document without international precedence. Fifth, it is anomalous that the current policy
proposals suggest that the work involved in “organising or planning” lobbying
communications does not generally need to be disclosed, but that one specific type of such
work would be registered – the directing or stimulation of a grassroots lobbying campaign. If
that “organising or planning” by in-house lobbyists is sufficiently significant as to be
disclosed, then so too is the day-to-day work of consultant lobbyists.
11
Department of Public Expenditure and Reform (2012) Regulation of Lobbying: Policy Proposals, p. 31.
Dublin: DPER.
Page 18 of 32
17.
I would suggest that the following formulations provide definitions which are both
explicit and comprehensive:
“In this Act, ‘lobbying’ means –
(1) undertaking any of the activities listed in sections 2-5 below either for payment or
other consideration on behalf of a third party, or as a remunerated employee on behalf
of an employer, or as a national officer or director of any organisation.
(2) communicating with a public official orally, in writing, or electronically, in respect
of:
i.
the development, introduction, amendment, passage or repeal of legislation;
ii.
the development, introduction, amendment, passage or repeal of any resolution
or statutory instrument which is to be or has been laid before either House of the
Oireachtas;
iii.
any parliamentary question or debate;
iv.
the work of any committee in either House of the Oireachtas;
v.
the rules, policies and positions of any political party;
vi.
the formulation, amendment, administration or abolition of any policy or
programme of a government department or other public body; or
vii.
the awarding or administration by a public body of any contract, grant, loan,
license or other benefit.
(3) appealing to members of the public through direct communication or mass media, in
an effort to encourage members of the public to themselves communicate directly with a
public official in respect of any item listed in section 2 above.
(4) providing to a third party or employer services intended to assist communication
with a public official – including research, monitoring, political intelligence, programme
support, strategic advice and profile raising.
(5) Any other activity designated as ‘lobbying’ by the Regulator.”
“In this Act, ‘lobbyist’ means –
(1) a person who engages in lobbying as defined in this Act either for payment or other
consideration on behalf of a third party, or as a remunerated employee on behalf of an
employer.
Page 19 of 32
(2) a person who advises another person in respect of lobbying as defined in this Act.”
“This Act does not apply to TDs, Senators or elected council members in the normal
course of their role as a public representative; or to recognised diplomatic
representatives of foreign governments; or to officials employed by the EU, UN or other
international quasi-governmental organisations.”
“In this Act, ‘public official’ means –
(1) a Minister or Minister of State;
(2) a Member of either House of the Oireachtas;
(3) any person employed by a member of either House of the Oireachtas;
(4) a ministerial Special Adviser;
(5) a director or employee of a government department or public body at or above the
level of Administrative Officer;
(6) an official employed by either House of the Oireachtas;
(7) the President of Ireland;
(8) any person employed by the President;
(9) a member of the Council of State; or
(10) any person employed by a political party.”
18.
Q9 Exclusions. The ‘Issues and Questions’ paper raises three possible scenarios in
which it may not be necessary to disclose contact. In my view, none justify exclusion. First,
some distinguish between so called ‘significant’ and so-called ‘less-significant’ contacts. I do
not regard this distinction as sufficiently valid as to warrant exclusions. There may be some
communications between a lobbyist and a policymaker which are genuinely anodyne – for
instance, a phone call to simply fix the time of a future meeting – and in which no mention is
made of anything with policy substance. However, such contacts should presumably be fairly
limited in frequency and thus not difficult to report. Moreover, granting to lobbyists the right
to decide for themselves that any contact is insignificant creates a loophole which will be
gradually and surreptitiously widened over time. If total reporting would create so-called
‘voluminous’ entries on the register, then I believe we should be able to see the voluminous
scale of lobbying in Ireland. All that is required is the design of an IT system and database
which can clearly present a log of all communications backed up with links providing more
detail for those who wish to explore it. It would also be possible to allow lobbyists to identify
Page 20 of 32
in their entries those contacts which they regard as less significant. Second, in my view any
lobbying which arises from an interest group’s participation in a government-sponsored
forum is nonetheless lobbying; and in any event, such activity is not remotely difficult to
register. Third, it is asserted by some that information provided to policymakers at their
explicit request may be of a purely factual nature with no intent to influence policy.
Personally, I would reject this claim out of hand. Virtually no information in the
policymaking arena is not capable of being used to advocate for a particular policy decision.
To take a straightforward example, the number of people who die each year on Ireland’s
roads is in itself an objective measure of fact. However, the number of lobbying
communications which provide that information and only that information are relatively few.
Most lobbyists in that area would provide the number and draw from it a subjective opinion
as to whether the level of fatalities could be attributed to poor design and manufacturing by
car companies, speed limits set too high, dangerous road construction, drink driving,
excessive speeds by young male drivers, inadequate roadside signage or lighting, inadequate
car safety inspections, or any one of a host of other contributory factors – each of which
would, if accepted by policymakers, point towards a different public policy solution. It may
be possible for the register to allow lobbyists to indicate in their entries those contacts which
were initiated by policymakers, but I certainly do not believe that such contacts ought to be
entirely excluded.
19.
In addition, the ‘Issues and Questions’ paper notes discussions held following the
Farmleigh seminar with some interest groups in which it was suggested that there is no need
to register details of discussions held with policymakers regarding the implementation of
policy within an already established legislative framework. I entirely disagree with this
proposition. Lobbyists seek legitimately to influence the ways in which policy is
implemented, but they cannot reasonably argue that such activity does not constitute
lobbying. How policy is implemented matters significantly; often as much is at stake for an
organization in the implementation of policy as it is in the formulation of policy. The paper
does note that it is questionable whether how a distinction could be legally defined, and
questionable whether such a distinction would contradict the overall objectives of lobbying
regulation. For me, these objections are well-founded and convincing.
20.
Q10 Cooling-Off Period. I believe that a cooling-off period for former policymakers
is crucial to protecting the integrity of the lobbying industry and the policymaking process
Page 21 of 32
alike. Personally, I would favour a three year period during which no former public servant
(including TDs, Senators, Ministers, senior civil servants, ministerial advisers, and staff
employed by the Houses of the Oireachtas or by TDs/Senators or by political parties) could
work as a lobbyist. I believe that restriction should apply across all lobbying activities rather
than simply in the specific area of the person’s former public employment. Moreover, I
believe that anyone who receives privileges by virtue of their former public employment
(such as an access pass or parking rights) should be required to relinquish those for at least
the duration of their lobbying career. In my view, former public officials should additionally
be forbidden for life from lobbying on behalf of a foreign government.
21.
Q11 Implementation Advisory Group. There seem to me to be a number of areas in
which it would be useful for the regulator to be able to draw on the advice of academics and
members of the industry, and for the industry to have the opportunity to hear direct from the
regulator:
The drafting of an initial code of conduct. In this regard, I would in addition urge the
regulator to ensure that any code of conduct is directed towards the general public as
much as it is towards the lobbying industry. For instance, the code adopted by the
Public Relations Institute of Ireland groups its first nine articles under the subheading
‘Conduct towards the public’, but in fact the public is largely excluded in practice
from this code. Lobbyists must disclose to policymakers the identity of their client,
but there is no mechanism by which the public is entitled or enabled to learn who is
lobbying whom on whose behalf. The code treats ethical lobbying standards solely as
an internal matter for the industry, over which the general public has no right to
information. Nothing in the code obliges any lobbyist to make any information at all
available to the public, and thus it does nothing whatever to increase general
transparency, accountability or public confidence in the lobbying process. Hence the
PRII code, while well-intentioned, fails to enhance the public acceptability of
lobbying or public trust in the policymaking process. I strongly urge the government
not to regard the PRII’s code as an adequate template or starting-point for the drafting
of a rigorous and meaningful industry-wide code of conduct.
Providing an open forum in which the regulator could disseminate general guidance
to lobbyists collectively. The regulator certainly needs to draw a balance between
immediate and total enforcement of sanctions for transgressions on the one hand, and
Page 22 of 32
on the other educating lobbyists about the reporting requirements so that they
understand fully how to ensure they remain in compliance. A large element of the
regulator’s job – certainly in the first two years, and less intensively after that – ought
to revolve around meeting lobbyists individually and in groups, providing training
and workshops on the new system, ensuring that all professionals know when and
what they must register. An advisory group could be invaluable in facilitating a cooperative approach to this. Once the system is bedded in, the group would thereafter
allow the regulator to be open with lobbyists as he or she begins to consider how to
close loopholes and adjust registration requirements.
Demonstrating to lobbyists the value of a professional association specific to their
interests and concerns. One of the more innovative elements of the report of the
House
of
Commons
Public
Administration
Select
Committee
was
the
recommendation that lobbyists should establish a “single umbrella organisation with
both corporate and individual membership, in order to be able to cover all those who
are involved in lobbying as a substantial part of their work”.12 The committee
proposed that the group must apply more rigorous ethical standards to its members
(including some degree of independent and external accreditation), and that both
individual and corporate standards should be created (and monitored by an
independent group external to the industry), and crucially should be set at such a level
that it would be possible for some applicants not to meet them. I have previously
urged the UK industry to take the initiative itself to establish an organisation of this
nature, stressing the need for “a single trade association, capable of speaking for the
industry with a single voice”,13 and described the lack of a body open to individual
rather than corporate membership which is specific to lobbyists rather than to the
general public relations industry as “a serious gap which needs to be closed by
lobbyists themselves establishing their own group”.14 The same is true of the Irish
industry. The establishment of an Implementation Advisory Group would I hope,
demonstrate to lobbyists the value of having a forum through which they could
12
Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall – Volume I
Report,
HC
36-I,
p.
42.
London:
The
Stationery
Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36i.pdf>
13
McGrath, C. (2005) Lobbying in Washington, London, and Brussels: The Persuasive Communication of
Political Issues, p. 174. Lewiston, NY: Edwin Mellen Press.
14
McGrath, C. (2005) “Towards a Lobbying Profession: Developing the Industry’s Reputation, Education and
Representation,” Journal of Public Affairs, 5(2), p. 131.
Page 23 of 32
collectively address issues of common concern. One of the benefits of a statutory
register is that we would have for the first time a comprehensive list of all
professional lobbyists in the country. I would wholeheartedly support a decision by
government whereby the annual registration fee included a component which would
be taken as a membership fee for a mandatory trade association representing lobbyists
and focusing on driving up ethical standards. Such a body has the potential to drive
the whole industry forward positively and to boost public confidence in the Irish
lobbying industry. Peter Bingle (Chairman of Bell Pottinger Public Affairs) told the
PASC committee that: “One of the issues for the industry is to have somebody talk on
its behalf who is a skilled communicator, who can actually get across what we do and
be proud of our industry and that would encourage a higher quality of person coming
into it”.15 That sort of proactive promotion of the industry would surely be a key
function of such a trade association. Among the challenges facing the industry are: a
need to communicate more effectively to the public about the proper role of lobbying
in a democracy; the development of rigorous ethical standards; the ability to offer
some form of redress to lobbying clients serviced by shoddy or substandard
consultants; and the creation of a training scheme for lobbyists. The third of these
items reflects a concern over what Norton terms “consumer accountability”16 – on
what basis should a potential client or employer hire someone and how will they
judge the quality of the services they receive? Charles Miller (a senior UK lobbyist
who would later become a driving force in the Association of Professional Political
Consultants) argued that lobbyists have a “duty to be properly qualified for the work
at which they are representing professional expertise”.17 This area alone could provide
a large work agenda for a new umbrella organisation. An inclusive trade association
would enable lobbyists in Ireland to begin to exercise vocal and vigorous leadership
of their profession. An inclusive association of lobbyists could begin to educate both
policymakers and the general public about the valuable and legitimate role which
interest representation plays in policy formulation. A strong professional association
15
16
17
Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall – Volume II
Oral and Written Evidence, HC 36-II, p. 71. London: The Stationery Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36ii.pdf>
Norton, P. (1991) “The Changing Face of Parliament: Lobbying and its Consequences,” in Norton, P. (ed.)
New Directions in British Politics?: Essays on the Evolving Constitution, p. 65. Aldershot: Edward Elgar.
Miller, C. (1991) “Lobbying: The Need for Regulation,” in Jordan, G. (ed.) The Commercial Lobbyists, p.
166. Aberdeen: Aberdeen University Press.
Page 24 of 32
representing all lobbyists could institute a mandatory ethics training programme, and
cooperate with higher education and in-career training providers to both accredit
relevant degree courses and provide programs of continuing professional development
for lobbyists. It could instil in individual lobbyists a strong sense of professional
identification and an appreciation of why membership of a representative body is
important. It could undertake a series of strategic media relations and of targeted
outreach to civil society; it could work with academics to produce best practice guides
for practitioners; it could co-operate with other professional groups in other
jurisdictions to ensure that lobbyists in Ireland are better able to network with their
counterparts internationally; and it could establish a mentoring scheme whereby
younger professionals could benefit from the experience of more established
colleagues. An agenda of this type would enable lobbyists acting together to make
substantial progress towards gaining greater public acceptance of the industry.
Finally, the government’s proposal that the operation of a regulatory framework be
subject to periodic review is a sensible one, to help ensure that the system remains
relevant over time as loopholes are identified and as lobbying practice develops.
Clearly, an advisory group could play an important role in feeding in to such reviews
the views of industry.
22.
Q12 Other Issues. If I may, I would like here to briefly address a number of separate
points:
The emphasis in the current policy proposals on using reform to “strengthen public
confidence in politics and in the business of government” is crucial 18, yet this is an
issue to which lobbyists themselves have consistently failed to take responsibility for.
It is surely not credible for lobbyists to argue – though some continue to do so – that
there is no reason to believe that the industry has a reputational problem. There may
be no empirical evidence for this in Ireland, but that is simply because the public here
have not been polled on their attitudes to lobbying and lobbyists. By contrast, this is a
question which is asked in the United States, and even given the many differences
between the US and Irish political systems the results are enlightening and should be
troubling for lobbyists in Ireland. The most recent annual opinion poll conducted in
the US by Gallup in 2011 into how various professions are perceived by the public
18
Department of Public Expenditure and Reform (2012) Regulation of Lobbying: Policy Proposals, p. 5.
Dublin: DPER.
Page 25 of 32
revealed – as usual – a profound distrust of lobbyists. Only 7 per cent of respondents
at the end of last year rated lobbyists’ honesty and ethical standards as high or very
high, while 27 per cent considered lobbyists to be average, and 62 per cent rated them
as low or very low. By contrast, the scores for nurses – the top ranked profession –
were 84 per cent, 15 per cent and 1 per cent respectively. Lobbyists had almost
exactly the inverse rating of high school teachers who had a positive score of 62 per
cent, an average rating of 29 per cent and a negative score of 8 per cent. Lobbyists
have always performed badly in this survey, conducted annually since 1990. Of the
eight worst ratings historically, three of those slots were obtained by lobbyists. The
sole bright spot for lobbyists in 2011 was that although they generally get worse
scores than any other profession, last year they were only second worst as Members of
Congress are held in slightly less esteem – 7 per cent of respondents believe their
honesty and ethical standards are high or very high, 27 per cent gave them an average
rating, but fully 64 per cent said that Members of Congress have low or very low
ethics. Prior to the 2011 survey, lobbyists were the “most despised profession Gallup
has ever tested” with a combined low or very low score of 64 per cent in 2008; this
unenviable record has now been tied by Members of Congress. 19 In my opinion, it is
now incumbent on Irish lobbyists to consider how to positively and proactively
engage with public opinion here – not simply by complying with a new registration
scheme but also by going beyond legal requirements to voluntarily accept individual
and collective responsibility for the integrity and reputation of their industry.
I would particularly highlight another idea which would significantly increase the
value of disclosure. During the House of Commons Public Administration Select
Committee inquiry, the Association of Professional Political Consultants argued that
comprehensive regulation would need to encompass that lobbying which is
undertaken on an irregular or ad hoc basis. For instance, a corporate CEO may
typically spend only a few days a year lobbying policymakers, but the APPC is
correct to highlight the potential importance of such interactions. The opportunity
exists now for Ireland to implement a truly original element of lobbying regulation. I
would suggest that any organisation which is obliged to register its lobbying activities
must record all such contacts between the organisation and policymakers. Tim
Hancock (Campaigns Director of Amnesty International) has argued that:
19
Gallup (2011) ‘Record 64% Rate Honesty, Ethics of Members of Congress Low’, 12 December.
<http://www.gallup.com/poll/151460/Record-Rate-Honesty-Ethics-Members-Congress-Low.aspx>
Page 26 of 32
“Transparency matters and it matters to understand not only who are lobbyists but it is
really important to understand what the contacts are between the lobbyists and the
officials or the MPs, but that also means at what level. One thing that is important to
understand is the difference and frequency between the contact that Amnesty
International has with the Foreign Office and a company like British Aerospace and at
what level those contacts are taking place. I am not necessarily saying those contacts
are right or wrong but they should be visible.”20 If anyone in an organisation meets
the definition of a lobbyist, then all lobbying undertaken by everyone in that
organisation ought to be recorded. In practice, this could be done quite simply: for
those groups which register multiple lobbyists, one would be designated as the
primary respondent (and naturally if an organisation only registers one lobbyist then
he or she is by default the primary respondent) who has the responsibility of ensuring
that all contacts between non-registered employees and policymakers are recorded in
the register.
It would be useful if the government were to consider not just the stick of criminal
sanctions, but also the carrot of practical incentives which might be offered to
registered lobbyists. There are a number of small and simple measures which should
be considered so that lobbying in Ireland could become more about what lobbyists
know than who they know. If lobbyists are regarded as valuable partners who
represent significant and legitimate socio-economic interests which want to play a
constructive role in the formulation and implement of public policy, then perhaps they
should be treated as such once they are meeting the rigorous demands of a regulatory
system. The government could enhance the benefits to lobbyists of engagement
through a series of relatively simple measures such as: daily emails alerting registered
lobbyists to significant events and activities, consultation papers, etc; encouraging
officials to be more receptive to meeting with lobbyists; providing easier availability
to parliamentary papers in a timely fashion; encouraging government departments to
hold briefing sessions for registered lobbyists about new policy issues; and perhaps
encouraging the Oireachtas authority not to issue full access passes but instead to
allow registered lobbyists access only to a communal room in Leinster House which
they could use to work in between meetings with TDs.
20
Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall – Volume II
Oral and Written Evidence, HC 36-II, p. 106. London: The Stationery Office.
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmpubadm/36/36ii.pdf>
Page 27 of 32
The ‘Issues and Questions; paper raises the possibility of renaming the Lobbying
Register with some formulation which would be more acceptable to lobbyists, such
as the Transparency Register or the Public Affairs Register. I personally absolutely
disagree with this suggestion. It is called for by some lobbyists solely because they
wish to disassociate themselves from the poor public standing of their industry. The
solution to that problem lies not in hiding behind euphemisms but rather in
proactively defending the value of their role in a vibrant democracy. It is true that if
‘lobbying’ only describes the direct advocacy of a point of view about a matter of
public policy, it is clearly inadequate as a description of the whole of the work
undertaken by most people in the industry. However, the terms ‘lobbying’ and
‘lobbyist’ do continue to be useful in the sense that their meaning is widely
recognised and understood. One clear benefit to lobbyists themselves of being
unafraid of the term is that, otherwise, it is in grave danger of being appropriated for
use solely by journalists and members of the public to reinforce a notion that
influencing public policy is somehow illegitimate and unethical. A key step in the
rehabilitation of the public perception of their work would be for lobbyists
themselves to accept openly and explicitly that they are indeed lobbyists.
ROLE OF THE REGISTRAR/REGULATOR
23.
Although the ‘Issues and Questions’ paper produced following the Farmleigh seminar
does not ask for comment on the appropriate role of the registrar/regulator, I would like to
address that area. While it is obviously important how definitions, items to be disclosed, the
frequency with which entries are to be updated, and so on, are framed in legislation, it is
perhaps even more crucial that the role and remit of the regulator be set out precisely.
Provided that the registrar is given sufficient authority and flexibility from the outset, he or
she will be able to make adjustments to all other facets of the registration system as they
become necessary or desirable over time. Unless the government demonstrates as firmly as
possible that regulation will be continuously enforced over the long-term, then some
lobbyists will seek to evade it. I would suggest that the most appropriate process by which to
ensure this is: 1) that the government prioritise the introduce of legislation establishing which
body will be responsible for overseeing the regulatory system; 2) that it include in the
legislation a phrase to the effect that lobbyists are required to disclose “such other matters as
may be prescribed by the Minister as being required in order to enhance transparency and
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maintain stability and confidence in policy, political and decision making processes” 21 –
although personally I would favour giving that power directly to the regulator rather than the
Minister in order to provide more maximum flexibility; 3) that once the legislation is enacted
the register comes into effect with lobbyists disclosing whatever fundamental items the
government considers essential to transparency; and 4) at the same time, the new regulator
holds a time-limited open consultation period with all interested stakeholders intended to
inform him or her in the task of drawing up more detailed rules concerning the practice of
lobbying and operational procedures.
24.
It has been suggested that the appropriate body to regulate the lobbying industry is the
Standards in Public Office Commission, and certainly there is some fit with that body’s
current responsibilities. My own view is that we should have a clearly identified individual
with a specific title such as Commissioner of Lobbying or Registrar of Lobbyists, even if that
person is an employee of SIPO; that the registrar and his or her staff should operate within a
separate unit of another larger organisation; and that the registrar needs to be given both
adequate autonomy and sufficiently flexibility to operate a regulatory framework effectively.
I believe that the registrar must ensure that all registration filings are made electronically and
are freely available through an Internet-based database; that he or she should be empowered
to produce an annual report on the operation of the register; that he or she should have the
clear authority to investigate suspected breaches of the regulatory framework and to verify
the information registered, in line with the OECD’s ninth principle; that the registrar should
have a range of administrative and criminal sanctions available; and the registrar should be
obliged to publish a report on each investigation undertaken. I would urge the government to
be particularly rigorous in this section of its legislation. One interesting idea which the
regulator may consider relates to the current self-regulatory requirement in the PRII’s code of
conduct that lobbyists take steps to ensure that the information they supply to policymakers is
accurate and honest. The government could consider giving the regulator power to levy
specific penalties on those found to have provided policymakers with false or misleading
information.
25.
As regards the frequency with which registrations should be updated, the current
policy proposals suggest quarterly returns. Personally, I would see this as the least we should
21
Fine Gael (2010) New Politics, p. 78. Fine Gael: Dublin. <http://www.finegael.org/upload/NewPolitics.pdf>
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expect of lobbyists, and suggest that the system allows lobbyists to update their information
more regularly than that if they wish to. Lanny Davis (a former White House adviser to Bill
Clinton) has suggested harnessing technology to make US lobbyists’ registration entirely
current. Under his proposal, in advance of every meeting with a policymaker, every lobbyist
should have to register their name and that of their client or employer, the specific reason for
the meeting and the legislation or policy issue to be discussed, the lobbyist’s position on that
issue, the specific action which the policymaker will be requested to perform and details of
all campaign contributions which have flowed from the lobbyist and/or client to that
policymaker. Then, as the lobbyist arrives for the meeting, he or she would be obliged to sign
in to a real-time computerised log to indicate that the meeting is actually taking place. In
Davis’ view this “total transparency” would be burdensome but he suggests that US lobbyists
would simply have to learn to live with it as they have learned to live with current rules, and
that any bureaucracy is more than outweighed by the public benefit provided by such blanket
accountability.22 Indeed, the anecdotal experience of lobbyists in other regulated jurisdictions
is that registration is a relatively straightforward matter which is simplest and least timeconsuming when it is done more regularly. Those lobbyists who file an annual return of the
activities may indeed find it burdensome, but all could comfortably set aside 5 minutes each
day to keep their returns up-to-date.
26.
Five points regarding the regulatory system are absolutely crucial in my view and
should be highlighted:
To be as useful as possible, the register ought to be Internet-based and be easily
searchable so that all citizens have access to the information, and it does need to be
based upon a reliable IT platform. One of the lessons of the current register of the UK
Public Affairs Council is surely that this is not something which can be done cheaply
if it is to function properly. The government will need to invest significant resources
to get such a system established, but we will all derive benefit from having an
effective register. Lobbyists should be required to file their registrations and other
material electronically. I endorse the comments made by Rob McKinnon for Who’s
Lobbying in his written evidence to the House of Commons Political and
Constitutional Reform Select Committee inquiry regarding the need for the register to
22
Davis, L. (2008) ‘Lobbyists are Good People Too’, The Washington Times, 17 November.
<http://www.washingtontimes.com/news/2008/nov/17/lobbyists-are-good-people-too/>
Page 30 of 32
be fully searchable and for lobbying organisations to be clearly identified in it.23
The regulator should be independent of both the government and the lobbying
industry if it is to have the credibility required to help enhance public confidence in
our policymaking process.
A range of penalties – from censure to more substantial measures – must be available
to the regulator and/or the criminal courts for non-compliance with the system, on a
sliding scale so that minor offences can be reasonably dealt with and serious
transgressions are liable to significant punishment.
Clearly, there will be a financial cost attached to the establishment and maintenance
of any regulatory system – particularly in terms of IT and staffing (although I would
expect that a handful of officials is probably all that would be needed). To some
extent, this is part of the price of an open and vibrant democracy and DPER should
not shy away from making the case for public investment. Equally, though, I believe
that it is appropriate that lobbyists themselves contribute to the cost of the register,
through an annual registration fee of perhaps €200-300 per registrant.
It is important that the legislation grants wide-ranging power to the regulator to
modify and update the rules concern the practice of lobbying in as flexible a manner
as possible. No regulatory model is perfect, and some lobbyists will certainly seek to
identify any possible loopholes. The regulator needs to be able to close these quickly,
and to learn from the evolving lessons of his or her counterparts in other jurisdictions.
What the loopholes in Irish legislation will prove to be is almost impossible to predict,
but there will inevitably be loopholes and the regulator must be in a position to
respond to them.
27.
The government’s policy proposals state that the registrar will be required to develop
a statutory code of conduct within 12 months of legislation being enacted. I wholeheartedly
agree with this approach. If the full text of such a code is included in legislation, it runs the
risk of being somewhat anodyne and bland, imposing on practitioners only the most basic
obligations. It also becomes set in stone and necessitates a relatively cumbersome process if
amendments are required. It is infinitely better to leave the drafting of a code of conduct to
the regulator so that it can be both rigorous and flexible. I would in addition urge the
23
Political and Constitutional Reform Select Committee (2012) Introducing a Statutory Register of Lobbyists:
Written Evidence, pp. 107-113. London: Political and Constitutional Reform Select Committee.
<http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpolcon/writev/1809/1809.pdf>
Page 31 of 32
government of the importance of any code of conduct being directed towards the general
public as much as it is towards the lobbying industry. For instance, the code adopted by the
Public Relations Institute of Ireland groups its first nine articles under the subheading
‘Conduct towards the public’, but in fact the public is largely excluded in practice from this
code. Lobbyists must disclose to policymakers the identity of their client, but there is no
mechanism by which the public is entitled or enabled to learn who is lobbying whom on
whose behalf. The code treats ethical lobbying standards solely as an internal matter for the
industry, over which the general public has no right to information. Nothing in the code
obliges any lobbyist to make any information at all available to the public, and thus it does
nothing whatever to increase general transparency, accountability or public confidence in the
lobbying process. Hence the PRII code, while well-intentioned, fails to enhance the public
acceptability of lobbying or public trust in the policymaking process. I believe that while a
register would be useful in terms of ensuring that uniform levels of transparency can be
applied to all lobbyists across the whole industry, it is in no way a substitute for the
enforcement of a uniform set of ethical standards across the industry. This requires a more
comprehensive and rigorous system of regulation than can be achieved through a register. I
would urge the Government most strongly to consider giving the registrar additional powers
to set fundamental rules and guidelines concerning what lobbyists may legitimately do and
what they are not permitted to do. As Mark Ramsdale put it in his written evidence to the
House of Commons Political and Constitutional Reform Select Committee inquiry, a register
“is of little use without a regulatory framework, adherence to codes of practice, and
appropriate sanction regime”.24
24
Political and Constitutional Reform Select Committee (2012) Introducing a Statutory Register of Lobbyists:
Written Evidence, p. 83. London: Political and Constitutional Reform Select Committee.
<http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpolcon/writev/1809/1809.pdf>
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