This chapter assesses the level of implementation in countries of the transparency principles of the Recommendation on Principles for Transparency and Integrity in Lobbying. The findings show that in a majority of countries, there is limited transparency on the targets of lobbying activities and on the actors conducting lobbying activities, and that the information disclosed is not enough to allow for public scrutiny. The chapter also shows that further light needs to be shed on all the different ways it is now possible to influence the policy-making process, and notes how compliance can be promoted through engagement with lobbyists and the use of digital tools. It also finds that audit and review of the rules and guidelines on lobbying is limited.
Lobbying in the 21st Century
2. Transparency
Abstract
Introduction
Transparency is the disclosure and subsequent accessibility of relevant government data and information (OECD, 2017[1]). The OECD Recommendation of the Council on Principles for Transparency and Integrity in Lobbying [OECD/LEGAL/0379] (hereafter “Lobbying Principles”) states that Adherents “should provide an adequate degree of transparency to ensure that public officials, citizens and businesses can obtain sufficient information on lobbying activities” (Principle 5) (OECD, 2010[2]). Transparency is thus a tool that allows for public scrutiny of the public decision-making process. As such, Adherents are encouraged to “enable stakeholders – including civil society organisations, businesses, the media and the general public – to scrutinise lobbying activities” (Principle 6) (OECD, 2010[2]). When designing rules or guidelines on lobbying, notably to provide transparency and permit public scrutiny, Adherents are asked to “clearly define the terms ‘lobbying’ and ‘lobbyist’ when they consider or develop rules and guidelines on lobbying” (Principle 4).
In addition, transparency requirements cannot achieve their objective unless the regulated actors comply with them and oversight entities effectively enforce them. The Lobbying Principles therefore encourage Adherents to implement a “coherent spectrum of strategies and mechanisms” to ensure compliance with transparency measures (Principle 9). The Lobbying Principles also call on Adherents to review the functioning of their rules and guidelines related to lobbying on a periodic basis and make necessary adjustments in light of experience (Principle 10).
The 2014 report monitoring the implementation of the Lobbying Principles acknowledged that transparency measures were needed to encourage trust in public decision making, reduce actual or perceived problems of influence peddling by lobbyists, and restore the integrity of lobbying professions. Governments regulating lobbying had commonly chosen public registers as key components of transparency schemes, but varying amounts and types of information were disclosed and made public. Although financial disclosure was seen as crucial by lobbyists and legislators, filing contributions to political campaigns, along with other lobbying information, was required by only two lobbying registers, and only one register made the information publicly available. In general, Adherents struggled to operate efficient disclosure tools and mechanisms that ensured informed decision making and transparent lobbying. Most of the lobbyists surveyed said that government sanctions were either non-existent or non-deterrent, leaving little or no incentive to comply with regulations (OECD, 2014[3]).
Since then, transparency in lobbying activities by disclosure of and access to lobbying information has increased. In 2020, 18 countries had public registries with information on lobbyists and/or lobbying activities. Some countries have placed the onus on public officials, by requiring them to disclose information on their meetings through so-called “open agendas”. Nine of the 18 countries indicated they require certain public officials to make their agendas public or disclose their meetings with lobbyists. However, levels of transparency vary across countries, and some of the measures in place provide only limited transparency on the influence process. The following findings suggest where more attention is needed:
Transparency on the targets of lobbying activities is limited.
Transparency on who is conducting lobbying activities is limited.
More transparency is needed on all forms of influence.
Information disclosed is usually incomplete and does not allow for public scrutiny.
Engagement with lobbyists and digital tools are used to promote compliance.
Audit and review of the rules and guidelines on lobbying is limited.
Transparency on the targets of lobbying activities is limited
Policy making takes place in a variety of public entities in all branches and levels of government. Transparency on policy makers or decision makers is thus vital, regardless where the policy maker sits. It is not easy to implement this principle in practice, given the different governance arrangements in countries, and the varying levels of independence or autonomy between branches and levels of government. As a result, information on the officials subject to lobbying activities is limited, more specifically:
Few countries are transparent about lobbying activities targeting all branches of government.
Transparency is still the exception at the subnational level.
Few countries are transparent about lobbying that targets all branches of government
The Lobbying Principles specify that disclosure requirements should point to public offices that are the target of lobbying activities. It is now widely accepted that while lobbying often focuses on the legislative branch, it also takes place in the executive branch, for example, to influence the adoption of regulations or the design of programmes and contracts. However, only a few countries provide some transparency in both branches (Figure 2.1).
In addition, over the past decade, courts and judicial means have been increasingly relied upon to address core public policy issues (Hirschl, 2011[4]). Through their jurisprudence or in their role as arbiters of conflict, courts are frequently asked to determine public policy outcomes in policy areas such as constitutional rights protections, trade and commerce, national security, labour or environmental protection. As such, the judiciary branch – including both judges and prosecutors – can also be subject to lobbying strategies concerning decisions with major societal impact. Similarly, influence strategies can also try to target the appointment of judges to secure specific judicial outcomes that advantage the interests represented. However, only four countries provide some level of transparency on lobbying activities targeting the judiciary (Figure 2.1).
Figure 2.1. Transparency of lobbying activities in the three branches of government
Source: OECD 2020 Survey on Lobbying, and additional research by the OECD Secretariat.
Transparency measures usually place the burden of disclosure on lobbyists, who must declare themselves on a lobbying registry. An alternative, and sometimes additional approach taken is to place the onus on the public officials who are being targeted by lobbying activities, by requiring them to disclose information on their meetings with lobbyists, either through a registry (Chile, Peru, Lithuania and Slovenia), “open agendas” (Lithuania, Spain, United Kingdom and the EU) and/or by requiring public officials to disclose their meetings with lobbyists to their superiors (Hungary, Latvia, Lithuania, Slovenia).
An open agenda can include information about a public official’s meetings, and their dates and times, the stakeholders they met with and the purpose of the meeting. In countries that combine lobbying registers and open agendas (e.g. the United Kingdom and Romania), cross-checking agendas and lobbying registers may provide an opportunity to analyse who tried to influence public officials and how (Box 2.1). In other countries, agendas are made available upon request or under specific circumstances. In Norway, the Ombudsman stated that the right of inspection includes access to ministers’ personal agendas (Sivilombudsmannen, 2017[5]).
Box 2.1. Open agendas of officials targeted by lobbying increase government transparency
Diaries available in the United Kingdom
In the UK, the Ministerial Code requires cabinet ministers to make their ministerial diaries available to the public. The relevant Department publishes them on a quarterly basis. The information details ministers’ external meetings and any meeting with newspaper and other media proprietors, editors and senior executives, regardless of the purpose of the meeting. The Code of Conduct for Special Advisors also requires special advisors to disclose meetings with newspaper and other media proprietors, editors and senior executives, on a quarterly basis.
The Office of the Registrar of Consultant Lobbyists cross-checks lobbyists registered with ministerial open agendas, to monitor and enforce compliance with the requirements set out by the Transparency of Lobbying Act.
Open agendas initiatives in Spain
In Spain, the agendas of elected members of the government have been published online since 2012, on the government website. The agenda lists daily the visits and meetings in which members of the government participate. Each item discloses at least:
the minister in charge, and other minister(s) assisting
the time of the meeting
the organisation met or visited.
In October 2020, the Boards of both Houses of the Spanish Parliament adopted a Code of Conduct for members of the Congress and the Senate, which requires the publication of the senators’ and deputies' agendas, including their meetings with lobbyists. An agenda section is available on the webpage dedicated to each deputy.
Open agendas in Romania
In Romania, decision makers targeted by lobbying activities must publish their daily agenda and meetings with legal entities, highlighting those registered in the Unique Interest Groups’ Transparency Register.
Source: OECD 2020 Survey on Lobbying; information shared by HM Government (United Kingdom) in the framework of the OECD PMR, 2018.
At the level of the EU, transparency of lobbying activities is provided through both a voluntary register of lobbyists and the publication of agendas of key EU public officials. The Interinstitutional Agreement between the European Parliament and EC on the Transparency Register established a register to provide information on lobbying activities targeting the EC and Parliament. While registration is voluntary, in practice, each institution applies its own rules defining conditionalities related to registration. For example, the EC’s transparency policy requires commissioners and those directly responsible for advising them (cabinet members, directors-general and heads of service) to publish information on meetings held with lobbyists, and must refuse to meet with lobbyists that are not registered in the Transparency Register. Since 31 January 2019, the Rules of Procedure of the European Parliament require Members of the European Parliament (MEPs) who play a leading role in drafting and negotiating legislation to publish, for each repot, their scheduled meetings with lobbyists publicly. They are urged not to meet with unregistered lobbyists. This rule affects rapporteurs, shadow rapporteurs and committee chairs of the European Parliament. Other MEPs are also encouraged to “adopt a systemic practice” to meet only with lobbyists registered in the Transparency Register, and are required to publish information on such meetings online. Lobbyists must be registered if they want to access Parliament premises and to participate in parliamentary committees and intergroups.
More recently, on 15 December 2020, the European Parliament, the Council of the EU and the EC reached an agreement to reinforce the transparency register. Meetings of lobbyists with the secretary-general and directors-general of the General Secretariat of the Council will be conditional on being registered on the Transparency Register. In addition, several member states will apply this principle to meetings with their permanent representations when exercising the presidency of the Council of the EU (once every 13 years) and the six months preceding it (Table 2.1). The Transparency Register will be open to the voluntary participation of other EU institutions, bodies, offices and agencies, as well as of the member countries’ permanent representations to the Union. The official signature of the agreement and entry into force was anticipated for the spring of 2021, following formal adoption by the three institutions.
Table 2.1. A new EU Inter-Institutional Agreement requires public officials to disclose meetings with lobbyists
Note: “Mandatory transparency” means that lobbying activities targeting officials in this category triggers a mandatory transparency requirement (i.e. the lobbyist must register to meet the targeted public official and/or the official must publish his/her meetings with lobbyists). “Voluntary transparency” means transparency is encouraged and voluntary. “No transparency” means there is no transparency requirement.
Source: Information provided by Daniel Freund, MEP; OECD 2020 Survey on Lobbying, (Joint Transparency Register Secretariat, 2020[6]; European Parliament, 2019[7]).
Even if transparency measures related to lobbying are applicable to one or more branches of government, all members of that branch are not necessarily bound by transparency obligations. Disclosure requirements may differ depending on the level of seniority of the public official or the type of decisions targeted (Annex Table A A.1). In countries with transparency frameworks, ministers and members of parliament are usually covered by transparency measures (Figure 2.2). The design, amendment and/or enforcement of legislation (whether discussed at the executive or legislative level) are also commonly considered a target of lobbying activities, followed by government decisions or programmes, and the awarding of public contracts, funding or any other benefit. In France and the United States, the appointment of certain public officials is also considered to be the kind of decision targeted by lobbying activities and thus covered by transparency requirements.
Figure 2.2. Ministers and members of parliament are usually covered by lobbying regulations
Source: Additional research by the OECD Secretariat.
Transparency measures have also been introduced at the organisational level to address the risks organisations face in interacting with specific interests. Regulatory agencies, ministries and institutions in certain countries have adopted their own transparency tools (Box 2.2).
Box 2.2. Lobbying transparency measures at the organisational level
Spain’s National Markets and Competition Commission has set up its own Register of Lobbyists
In Spain, the National Markets and Competition Commission has adopted its own “Resolution to create the Register of Interest Groups”, considering that its relationship with special interests must be transparent, supported by control mechanisms, and allow citizens to know how far interest groups have influenced the commission’s decisions. Registration is on a voluntary basis and accompanied by rules of conduct for interest groups. The register is complemented by the publication of meetings that its directors and members of the commission’s Council have with interest groups.
France’s Health Transparency Database
In 2011, France introduced new transparency requirements for health professionals and pharmaceutical companies, which are required to disclose their ties in a dedicated registry. The information is aggregated and made publicly available on an online database, Transparence Santé, on which doctors, medical students and scientific societies must disclose any gifts or benefits (meals, transport and accommodation, equipment) that they receive from pharmaceutical companies. Pharmaceutical companies must disclose remunerations to any health actor (professional or legal entity) for a work or service.
Latvia’s line ministries publish their meetings with lobbyists
The Latvian Ministry of Environmental Protection and Regional Development and several other agencies publish basic information on contacts with lobbyists online, based on an internal code of ethics, which includes a dedicated section on “rules of ethical conduct in communication with lobbyists”.
Italy’s line ministries have set up their own Register of Lobbyists
In Italy, the Directive of 24 September 2018 established a lobbying register for the Ministry of Economic Development and the Ministry of Labour and Social Policies.
Italy’s Anti-Corruption Authority publishes its meeting with external stakeholders
In Italy, the Anti-Corruption Authority publishes weekly agendas of meetings between key decision makers of the authority (the president, members of the authority’s Council, secretary-general and senior managers) with external stakeholders. Agendas are published online and contain information on the purpose of the meetings, the date and time, the names of persons present at the meeting, the topics of discussion, as well as any document transmitted. Agendas are published on the authority’s website under a “Transparent Administration” section.
Source: OECD 2020 Survey on Lobbying, France : (Conseil Constitutionnel, 2019[8]) ; Latvia : List of lobbyists (https://www.varam.gov.lv/sites/varam/files/content/files/etikas_kodekss_2020_final.pdf) and Code of Ethics (https://www.varam.gov.lv/lv/par-lobetaju-sniedzamie-dati).
Transparency is still the exception at the subnational level
Many significant public decisions on public services, such as social services, health care and education, the welfare system, as well as land use, housing, planning and infrastructure issues and environmental protection, are made at the subnational level. All known risks related to influence on government decision making are thus applicable to subnational governments, particularly in federal countries where significant decision-making powers reside in state or provincial governments. Although the Lobbying Principles were designed to provide guidance to decision makers at both national and subnational levels, transparency in lobbying is still the exception at the subnational level of government (Figure 2.3). As a result, many significant policies formulated by regional or local governments are informed and influenced with little transparency and public scrutiny.
Figure 2.3. At subnational levels of government, transparency on lobbying is still the exception
Source: Additional research by the OECD Secretariat.
Seven countries provide transparency measures for public officials at every government level, including the regional and/or municipal levels of government (Austria, Chile, France, Ireland, Lithuania, Peru, Slovenia). In France, coverage of the local level will take effect on 1 July 2022. Federal countries are not able to provide transparency measures throughout the country, given the autonomy of subnational governments, although in some federal countries, some level of transparency exists in all or some of the subnational governments (Box 2.3). However, even if transparency requirements are in force at different levels of government, differences in their scope and depth may result in unequal levels of transparency that can be exploited by those seeking to conceal their lobbying activities. Given the importance of decisions and policies decided at the subnational level, a coherent approach to transparency at all levels of government is vital, to ensure that actors cannot choose the least transparent place for lobbying to conceal their activities.
Box 2.3.Transparency of lobbying at the regional and municipal level: selected frameworks
Australia
All Australian jurisdictions but one, the Northern Territory, have introduced lobbying regulatory regimes, with similar registration requirements for third-party lobbyists.
Western Australia was the first Australian state government to introduce a code of conduct (Contact with Lobbyists Code) and a Register of Lobbyists.
New South Wales introduced a Lobbyist Code of Conduct and a Register of Third-Party Lobbyists in 2018. The framework is also supplemented by the publication of ministerial diaries, which took effect in 2014.
Queensland, South Australia, Tasmania and Victoria introduced a Code of Conduct for lobbyists and a Register of Lobbyists in 2009.
In 2015, the Legislative Assembly of the Australian Capital Territory introduced a Lobbying Code of Conduct as well as Lobbyist Regulation Guidelines, both published in the Assembly’s standing orders. The framework includes a Register of Lobbyists.
Canada
Except for the Northwest Territories and Nunavut, all Canada’s provinces and territories have adopted a framework regulating the interactions between public officials and lobbyists. These regulations usually include similar definitions and transparency requirements as the regulation at the federal level.
In particular, the lobbying regime in Québec regulates lobbying activities at governmental, parliamentary and municipal levels, ensuring consistency in the application of the regime throughout the Québec jurisdiction and its public institutions. In Newfoundland and Labrador, the regulation also applies to the City of St. John’s Municipal Council and its controlled entities.
In other Canadian jurisdictions, lobbying activities have also been regulated at the municipal level. The City of Ottawa introduced a 2012 Lobbyist Code of Conduct and a Lobbyist Registry. The City’s Integrity Commissioner oversees the implementation of the Lobbyist Registry and the enforcement of the Code of Conduct. Similarly, the Lobbyist Registrar of the City of Toronto maintains an online municipal registry of lobbyists and lobbying activities, established in 2018 by a lobbying by-law modifying the Toronto Municipal Code. The Lobbyist Registrar is one of the City’s four Accountability Officers and oversees compliance with the Code of Conduct for lobbyists independently.
Spain
In Spain, several autonomous communities and regions have introduced lobbying registers. These include:
Aragon (Registro de lobistas y lobbies introduced by the Law 5/2017 on Public Integrity and Ethics);
Castilla-La Mancha (Registro de los grupos de interés introduced by the Law 4/2016 on Transparency and Good Governance);
Catalonia (Registro de grupos de interés de Cataluña introduced by the Law 19/2014 on Transparency and Access to Information and Good Governance),
Valencia (Registro de grupos de interés introduced by the Law 25/2018 regulating the activity of stakeholders in the Valencian Community);
Navarra (Registro público de los grupos de interés introduced by the Law 5/2018 on Transparency, Access to Public Information and Good Governance).
The City of Madrid also adopted a lobbying regulation in 2017, introducing a lobbying register (Registro de lobbies). The register is a key tool of the City of Madrid’s transparency policy. On registration, lobbyists must comply with a Code of Conduct.
Source: Additional research by the OECD Secretariat, information provided by the Québec Commissioner of Lobbying and (HATVP, 2020[9]), (Ciudad de Madrid, 2017[10]; Lobbyist Registrar of Toronto, 2015[11]).
Transparency on who is conducting lobbying activities is limited
An adequate degree of transparency of lobbying activities requires information on the actors who are influencing government policies or engaging in lobbying. This means clearly identifying the actors in the decision-making process who are considered to be lobbyists. According to the Lobbying Principles, definitions of who should be considered lobbyists should be robust, comprehensive and sufficiently explicit to avoid misinterpretation and to prevent loopholes. However, even in countries that provide transparency in lobbying, loopholes do emerge. The following points require further consideration:
Certain actors who are de facto lobbyists are not always covered by transparency requirements.
Further transparency is needed to determine the beneficial owners of companies influencing the policy-making process.
In most countries there is no transparency on the influence of foreign governments.
Certain actors who are de facto lobbyists are not always covered by transparency requirements
Influence on public policy-making processes can be exerted by a wide range of actors and interests, such as:
lobbying firms and law firms who represent the interests of third parties, such as companies or other organisations (these are often referred to as “consultant lobbyists”);
businesses and their representatives through in-house lobbyists or trade and business associations representing their interests – including industry associations or general associations such as chambers of commerce – as well as trade unions and professional associations representing employees or professions;
non-governmental organisations (NGOs), charities, foundations and religious organisations;
research centres, think tanks and policy institutes that provide information on specific policy issues and can propose policy solutions.
To provide transparency and allow for public scrutiny, countries are encouraged by the Lobbying Principles to “clearly define the term ‘lobbyist’ when they consider developing rules and guidelines on lobbying”. While the Lobbying Principles call on Adherents primarily to target paid lobbyists, governments are encouraged to consider a broader and more inclusive scope of transparency measures, to enhance public scrutiny over public decision-making processes (OECD, 2010[2]).
Countries where some level of transparency in lobbying exists usually adopt a definition of who counts as a lobbyist, though the definitions are not always sufficiently clear (Annex Table A A.2). In some countries, actors such as NGOs, charities and foundations, think tanks, research centres and religious organisations are excluded from the definition of “lobbyist” or are exempt from disclosure requirements (Figure 2.4), but this also depends on the nature of the activity. For example, in the United Kingdom, if any of these organisations are communicating with ministers or permanent secretaries on behalf of paying clients, the activity needs to be declared. On the other hand, if they communicate on their own behalf, the activity does not need to be disclosed. Australia and Austria also exclude service providers such as lawyers when their activity is related to legal advice but requires them to register when the services offered involve lobbying activities on behalf of clients. The nature of the activity also includes whether or not the lobbying activity is paid. Unpaid lobbying activities may be just as effective as paid activities, especially if the lobbyist is a former public official who still has an active network (Office of the Registrar of Consultant Lobbyists, 2021[12]). Yet, four Adherents (Canada, Poland, the United Kingdom and the United States) have explicitly excluded unpaid lobbying activities from their requirements on disclosing lobbying.
Industry associations are an additional actor for which more transparency seems to be called for. Many companies are members of or form cross-sector groups or industry associations that lobby on behalf of these companies. In countries that already have some level of transparency, an industry association acting as a lobbyist must be disclosed, but it is not always clear which specific interests or for which of its members the association is lobbying for. The understanding is that the association is lobbying on behalf of all its members, yet in practice, an unwritten rule among members appears to allow companies to push their chosen positions when their sector’s key regulatory issues arise. This often results in the adoption of a position held by members who are most active and vocal, but in the minority. This gives a distorted impression of exactly who is promoting a certain lobbying position. Industry associations have considerable influence, because they represent a wide group of businesses, so it would seem vital that they disclose the particular beneficiaries of a lobbying position, which may only represent a minority of interests in the group. Potential misalignment between a company and the industry association it belongs to is clear in some cases, as evidenced by some companies that are withdrawing from various associations (Chapter 3). Further disclosure rules designed specifically for industry associations may be necessary, so minority interests are not presented as speaking for all the members. Public disclosure of different positions in an association may also prevent companies from withdrawing from an association.
Figure 2.4. Not all actors are bound by transparency requirements in their lobbying activities
Source: OECD 2020 Survey on Lobbying and additional research by the OECD Secretariat.
In sum, less than half of countries have transparency requirements covering most of the actors that regularly engage in lobbying (Figure 2.5).
Figure 2.5. Percentage of countries covering different actors through their transparency requirements
Source: OECD 2020 Survey on Lobbying and additional research by the OECD Secretariat.
Imposing transparency measures equally on all the actors who aim to influence decision-making processes is one practical solution for increasing scrutiny of public decisions. It can also enhance consistent scrutiny of lobbying activities and the legitimacy and trustworthiness of activities in which different interests are represented (Lyon et al., 2018[13]). A report from the Québec Commissioner of Lobbying noted that since unpaid lobbyists and civil society organisations are not required to register in its lobbying registry, this creates unfair treatment, reinforcing negative perceptions of lobbyists, who are covered by transparency requirements (Québec Commissioner of Lobbying, 2019[14]). In particular, the uneven scope of the Act has generated ambiguity and confusion, opposing lobbying to other activities supposedly conducted in the public interest, which compromise the understanding and application of the Act. The commissioner, in line with the OECD Lobbying Principles, considers that the status of an entity benefiting from lobbying (whether for-profit or not-for profit) should not be the main factor exempting an entity from registration requirements. Rather, the main factors justifying transparency requirements should be the objective of the activity (that is, to influence the public decision making of an entity or the members of this entity), regardless of whom it benefits, and the relevance of making this activity transparent to the public (to shed light on all influence activities targeting a particular decision-making process).
Furthermore, a broader understanding of who is conducting lobbying activities as envisioned by the Lobbying Principles aligns with the views of members of parliament. A majority of lobbyists and members of parliament surveyed report that they consider actors such as NGO representatives, trade unions, religious organisations, think tanks, and charities as lobbyists (Figure 2.6).
Figure 2.6. Percentage of lobbyists and members of parliament that consider certain actors should be covered by lobbying rules or guidelines
Source: OECD 2020 Survey on Lobbying.
Further transparency is needed to determine the beneficial owners of companies influencing the policy-making process
The term “beneficial owner” refers to the natural person(s) who ultimately owns or controls a customer and/or the natural person on whose behalf a transaction is being conducted. It also includes those persons who exercise ultimate control over a legal person or arrangement. Even where a fair level of transparency exists as to who is influencing the policy-making process, the name of a legal entity may not reveal who is the beneficial owner, or who is ultimately benefiting from the lobbying activity. Transparency and scrutiny would necessitate public disclosure of the beneficial owner of companies influencing the policy-making process. For example, at the EU level, the fifth Directive on Anti-Money Laundering (Directive EU 2019/843) established in Article 1.15.c that beneficial ownership registries should be accessible by any member of the general public. The directive states that “Member States should therefore allow access to beneficial ownership information on corporate and other legal entities in a sufficiently coherent and coordinated way, through the central registers in which beneficial ownership information is set out, by establishing a clear rule of public access, so that third parties are able to ascertain, throughout the Union, who are the beneficial owners of corporate and other legal entities”. As of early 2020, 13 out of the 27 EU members were still not compliant (Van der Merwe, 2020[15]).
In most countries there is no transparency on the influence of foreign governments
The increasing complexity of domestic policy-making processes and negotiations at the international level is blurring the lines between lobbying and diplomacy. Instead of relying on traditional and formal diplomatic channels and processes, foreign governments increasingly rely on lobbyists and other forms of influence to promote their policy objectives at national and multilateral levels (Curran and Eckhardt, 2017[16]; Rönnbäck, 2015[17]; De Bièvre et al., 2016[18]). Although these practices are not new, they have expanded in recent years (Thurber, Campbell and Dulio, 2018[19]). For example, a significant portion of influence efforts in the United States are undertaken on behalf of foreign actors, whether they represent foreign corporations or foreign government entities – potentially around 22% of the total lobbying spending (Courtney and Lee, 2020[20]). Recent evidence also shows that these activities continued during the COVID-19 pandemic (Lehren and De Luce, 2020[21]).
Such activities usually have three main objectives: i) to influence key democratic processes in the country; ii) to influence a country’s foreign policy positions, including their positions on international negotiations (such as climate, tax, trade, data protection); iii) to influence perceptions of a country by the government, media and nationals of another country. Like lobbying, foreign influence – whether exercised through traditional diplomatic channels or through lobbyists – is a legitimate activity and, if conducted in an open and transparent manner, can be a positive force in public policy making. Countries around the world seek to influence domestic policies and foreign policy choices of other governments, as well as international negotiations and agreements, in a way that benefits their interests.
The actors and influence practices of many lobbying firms or individual lobbyists working on behalf of foreign governments are similar to other forms of influence. As for the actors involved, foreign governments – including their embassies and permanent representations – may engage lobbying, law and public relations firms, or former public officials of the country, to conduct lobbying on their behalf. They may also fund grassroots organisations, foundations, academic institutions and think tanks to produce evidence supporting their goals, as well as to provide gifts and other benefits (such as sponsored trips) to journalists and decision makers (Rescan, 2019[22]). Foreign governments may also use affiliations to state-sponsored media services or state-owned corporations as channels of influence (O’Keeffe and Viswanatha, 2019[23]).
While the Lobbying Principles do not explicitly mention foreign governments as lobbying actors, they do mention that lobbying should also be considered broadly to provide a level playing field for interest groups whose aim is to influence public decisions. Influence and lobbying by foreign interests can have a transformative impact on the political life of a country, not only on domestic policies but also on its foreign policy, its election system, economic interests and its ability to protect its national interests and national security. One compilation of the impact of activities of foreign entities registered under the US Foreign Agents Registration Act (FARA) on public opinion and decision-making processes shows that public relations campaigns conducted on behalf of a foreign government have been able to influence both US public opinion and also US media coverage of foreign countries. Meanwhile, non-democratic countries pay a higher fee for lobbying than their democratic counterparts (Courtney and Lee, 2020[20]).
The challenges seem to increase when foreign commercial and government interests are intertwined. For example, rising concern over Chinese and Russian-led influence and the risks that such influence represent to liberal democracies has emerged both in Europe and the United States (Box 2.4 and Box 2.5). It is for this reason that the 2018 Australian Foreign Influence Transparency Scheme Act makes an important distinction between “foreign influence”, which is considered a legitimate activity, and “foreign interference”, which is taken to mean “covert, deceptive and coercive activities undertaken by (or on behalf of) foreign actors to advance their interests or objectives”, with the risk of “corrupting the integrity of established systems” (Australian Government Attorney General's Department, 2019[24]).
Box 2.4. Alleged lobbying by Huawei and TikTok on behalf of the Chinese government
The significant lobbying and influence activities of the companies Huawei and TikTok to advance their commercial interests have raised concerns about the close ties between these companies and the Chinese government, and the national security implications that they may entail.
Similarly, think tanks financed by foreign governments are increasingly influencing public opinion in domestic markets, and foreign media outlets are ever more active in forming domestic public opinion. In 2018, the US Department of Justice ordered Xinhua and CGTN, two Chinese-run media outlets, to register as foreign agents (as part of the US Foreign Agents Registration Act).
Box 2.5. Russian influence in the United Kingdom
A recent report by the UK Intelligence and Security Committee of Parliament and the subsequent government response agree on the reality and risks of Russia’s attempt to influence UK politics and market. The reports noted that Russia seems to be abusing legitimate means of influence and lobbying practices. This includes high-profile Russian officials or businesses involved in charitable and/or political organisations in the UK, and Russian interests providing funding to political parties and spreading misinformation through social media. The report recommends establishing a system of transparency in the UK similar to those in Australia, Canada and the United States.
Foreign lobbying or influence can also take advantage of gaps and loopholes in lobbying or political finance regulations. In many Adherents, direct foreign contributions to political campaigns are illegal, but lobbying firms that are used as intermediaries are permitted to make direct payments to political parties and/or candidates on behalf of foreign governments.
The risks involved in lobbying and influence activities of foreign interests are therefore high for all countries, and, it appears, higher than the risks posed by purely domestic lobbying and influence activities. It should follow that transparency and public scrutiny are also high, but this is rarely the case (Figure 2.7). In countries where there is some level of transparency on lobbying activities, there is no transparency when a foreign government engages in lobbying in another country through a hired/consultant lobbyist, as activities involving foreign governments are usually exempt from transparency requirements. Three Adherents are the exception. In Canada, consultant lobbyists representing the interests of foreign governments are bound by the same disclosure requirements as other actors specified in the Lobbying Act. Specific frameworks allowing for transparency for foreign government influence are in place in the United States (Foreign Agents Registration ActForeign Agents Registration ActFARA) and most recently in Australia (Foreign Influence Transparency Scheme Act of 2018), which has dedicated registries (Box 2.6 and Box 2.7). Under the Australian and US regulations, the scope of activities and information that must be registered is much wider than in both countries’ traditional lobbying frameworks. Under the new EU Inter-Institutional Agreement, due to enter into force in Spring 2021, activities by third countries will also be covered, when they are carried out by entities without diplomatic status or through intermediaries (European Commission, 2020[31]).
Figure 2.7. Transparency on lobbying by foreign governments is limited
Source: OECD 2020 Survey on Lobbying and additional research by the OECD Secretariat.
Box 2.6. The US Foreign Agents Registration Act
The US Foreign Agents Registration Act (FARA) was the first lobbying law passed in an OECD country. It was enacted in 1938 to counter rising Nazi influence in the country, in response to concerns over German-American organisations that were sponsoring clubs, demonstrations and rallies in support of the Nazi government. It has since been amended several times. The Act covers lobbying undertaken on behalf of “foreign principals”.
Under the act, a “foreign principal” is taken to mean a foreign government, a foreign political party, any person outside the United States, and any entity organised under the laws of a foreign country. The act exempts foreign commercial entities, since these must register under the Lobbying Disclosure Act of 1995.
An “agent of a foreign principal” is any person who acts as an agent, representative or employee of a “foreign principal” and engages within the United States in political activities intending to influence any US government official or the American public; or in soliciting, collecting, or disbursing loans, money or other things of value within the United States.
FARA requires detailed disclosure requirements of an agent’s activities, in more detail than is required by the Lobbying Disclosure Act from its registrants. This includes for example, details about the agent; on the foreign principal, a description of the activities the agent of a foreign principal has or will undertake; financial information on any money received from the foreign principal, any money disbursed on behalf of the foreign principal, and any political contributions made by employees of the agent.
Agents must file a Supplemental Statement every six months, detailing and updating all the items and activities from the Registration Statement, including every press or government official contacted on behalf of a foreign principal.
The Department of Justice monitors implementation of the FARA through the dedicated FARA Registration Unit. The FARA Unit prepares a biannual report to the US Congress. Registration statements and other forms required under the FARA are publicly available on the website of the Department of Justice.
Source: United States Department of Justice, Foreign Agents Registration Act (FARA), http://www.fara.gov/; (Courtney and Lee, 2020[20]).
Box 2.7. The Australian Foreign Influence Transparency Scheme
The Australian Foreign Influence Transparency Scheme was introduced in 2018 “to provide the public with visibility of the nature, level and extent of foreign influence on Australia’s government and politics.” It provides a public register of certain activities, including lobbying, undertaken by a third party on behalf of a foreign principal; and acknowledges that foreign influence is a mutually beneficial and useful element of international relations that can make a welcome contribution to democratic debate.
The scheme defines a “foreign principal” as a foreign government, a foreign political organisation (e.g. political parties), a foreign government-related entity, including companies in which the foreign principal exercises total or substantial control over the company, or an individual with ties to a foreign-government.
“Registrable activities” are lobbying activities directed towards the Parliament, Commonwealth public officials, departments, agencies or authorities of the Commonwealth, registered political parties or candidates in federal elections. Also covered by the scheme are communications activities, covering information or material made available to the public, as well as any disbursement activities, which include the distribution of money or items of value on behalf of a foreign principal.
The scheme requires detailed disclosure of registrable activities, in more detail than what is required of registrants under the Australian Lobbying Code of Conduct. Information disclosed includes the name of the individual or organisation representing a foreign principal, the occupation of the individual, the name and foreign country/jurisdiction of the foreign principal, any type of arrangement with the foreign principal, the types of activities conducted, and the start and end date of these activities.
More stringent obligations apply to those who have previously held prominent roles in the Australian government, including former cabinet ministers, who must register any activity to which they contribute their experience, knowledge, skills or contacts gained in their former position.
In addition, people and entities who must register under the scheme have specific obligations during voting periods, including: reviewing registration information and confirming or updating it; and reporting any registrable activities undertaken during the voting periods (relating to the relevant vote or election).
The Australian government’s Attorney-General’s Department administers the scheme. Detailed factsheets and guidelines in 12 different languages are available on the department’s website.
Source: https://www.ag.gov.au/integrity/foreign-influence-transparency-scheme/fits-resources; Australian Government Attorney General’s Department.
Transparency on foreign influence was identified as desirable by members of parliament (Figure 2.8). Foreign influence was also identified by lobbyists as one of the most challenging influence practices, while more than nine out of ten (94%) agree that information on individuals or public relations firms representing the interests of foreign governments should be made public.
Figure 2.8. Activities on behalf of foreign governments that members of parliament think transparency rules should cover
Source: OECD 2020 Survey on Lobbying.
The frameworks developed in Australia, Canada and the United States have proven their value in increasing transparency. For example, the public can learn that several foreign governments hired Washington, DC, lobbying firms and lobbyists to see how the US media portrayed their country during the COVID-19 crisis. Filings also show that a major Saudi state-owned company employed a public relations and marketing consultancy in the United States to promote an international conference organised in Riyadh, which included discussions on how to best respond to COVID-19 [filings available on https://www.justice.gov/nsd-fara (The United States Department of Justice, n.d.[32]) and (Lehren and De Luce, 2020[21])]. Given the significant risks involved when foreign governments influence domestic politics and markets, it may be useful to increase transparency concerning these activities.
More transparency is needed on all forms of influence
To provide transparency and allow for public scrutiny, Adherents to the Lobbying Principles are asked to clearly define the term “lobbying” with a robust, comprehensive and sufficiently explicit definition to avoid misinterpretation and to prevent loopholes. The Lobbying Principles also mention that core disclosure requirements should identify the beneficiaries of lobbying, and that supplementary disclosure requirements should shed light on where lobbying pressures and funding come from. This comprehensive approach to defining lobbying is necessary to cover the influence of the policy-making process in all its forms. However, the following points show that more transparency is needed on all forms of influence:
Transparency on core lobbying activities is limited.
Transparency on political finance is greater than on lobbying, although loopholes remain.
More transparency is needed on the sources of funds for research, think tanks and grassroots organisations.
More transparency is needed on the use of media and social media as a lobbying tool.
Transparency on interests advising government ad hoc bodies is limited.
Transparency on core lobbying activities is limited
Lobbying activities are usually defined as oral, written and electronic communications between public officials and lobbyists (Annex Table A A.3). The specific types of communications covered are not always clearly defined, and what constitutes “direct” and “indirect” influence is also not explicitly defined. In certain countries, technical guidance documents further clarify the scope of lobbying. For example, the website of the Irish lobbying register indicates that “relevant communications” can include informal communications such as casual encounters, social gatherings, social media messages directed to public officials, or “grassroots” communication, defined as an activity where an organisation instructs its members or supporters to contact public officials on a particular matter. Similarly, the UK Office of the Registrar of Consultant Lobbyists indicates that social media messages directed to an official or personal account fits the criteria for consultant lobbying and requires registration.
Many activities, however, are still exempt from transparency requirements (Table 2.2). For example, communications made in response to a request by a public official are commonly exempt from lobbying definitions. In Australia, Peru and the United States, statements made in public are not considered lobbying. Other countries, such as France, exclude grassroots campaigns and public awareness campaigns from registrable activities. Advisory activities are also excluded from lobbying in Chile, Germany, Lithuania and the United States (Box 2.8).
Box 2.8. Activities in an advisory or expert capacity are often excluded from lobbying definitions
In Chile, consultants hired by public and parliamentary bodies (e.g. professionals and researchers from non-profit associations, corporations, foundations, universities, research centres and any other similar entity) are not considered to be lobbying activities. Invitations from state officials and parliamentarians to participate in meetings of a technical nature for these professionals are also not registrable activities.
The US Lobbying Disclosure Act also excludes communications made in the course of participation in an advisory committee from lobbying activities.
Lithuania also excludes activities of those who are invited or requested on the initiative of state and municipal institutions to participate as experts or specialists in meetings and consultations on the drafting of legal acts.
Ireland has a Transparency Code for policy working groups
In Ireland, interactions between members of policy working groups are exempt from lobbying transparency requirements only if the working group adheres to the Transparency Code (published on the website of the Standards in Public Office Commission), which requires the group to publish the membership, terms of reference, agendas and minutes of meetings. If the requirements of the Code are not adhered to, interactions within the group are considered a lobbying activity under the Law. The ministry or public body that set up the working group is expected to ensure the Code is implemented.
Source: Additional research by the OECD Secretariat.
Table 2.2. Common exemptions from transparency requirements in lobbying activities
Source: OECD 2020 Survey on Lobbying and additional research by the OECD Secretariat.
These exemptions may create significant loopholes and exclude many actions aimed at influencing the legislative process.
Transparency on political finance is greater than on lobbying, although loopholes remain
Financing political parties and election campaigns is a legitimate right and a way for citizens to contribute to the finances of candidates who will advance the citizens’ interests. It is a way to support a party or candidate of their choice, as well as specific policies. As such, the Lobbying Principles state that “[e]ffective rules and guidelines for transparency and integrity in lobbying should be an integral part of the wider policy and regulatory framework that sets the standards for good public governance. Countries should take into account how the regulatory and policy framework already in place can support a culture of transparency and integrity in lobbying. This includes […] rules on political parties and election campaign financing.” The OECD Recommendation on Public Integrity [OECD/LEGAL/0435] also states that Adherents should “encourage transparency and stakeholders’ engagement at all stages of the political process and policy cycle to promote accountability and the public interest, in particular through instilling transparency in lobbying activities and in the financing of political parties and election campaigns.”
One way to promote transparency in political finance is to disclose information on the sources of funding of political parties or candidates. A majority of countries (Brazil and Romania) require political parties to report on their sources of financing, including finances of political campaigns (Figure 2.9). In 97% of cases, countries make public information in the financial reports of political parties and/or candidates. In nearly half of these countries, the identity of the donors is reported on a regular basis in reports from political parties and/or websites. The identity is disclosed only upon fulfilling certain conditions in 15 OECD countries. In others, the donors’ identities are only disclosed when their contributions rise above a certain threshold. Such provisions seek a balance between transparency and protecting the privacy of those making smaller donations.
Figure 2.9. Transparency in political finance
Source: Adapted from IDEA (n.d.), Political Finance Database, https://www.idea.int/data-tools/data/political-finance-database and additional information provided by delegates of the Working Party of Senior Public Integrity Officials (accessed on 9 May 2021).
Despite this higher level of transparency, as compared with lobbying, some loopholes remain that prevent full transparency and public scrutiny of political finance. Funding election campaigns through third parties, such as trade associations, “social welfare” organisations and Political Action Committees (PACs) in the United States, may be a way of reducing transparency when influencing the public decision-making process. It is also a challenge to ensure transparency on online campaigning and related expenditures by political parties, as well as crowdfunding and other online fundraising tools (Hamada and Agrawal, 2020[33]).
Unlike lobbyists, persons or organisations who contribute to the funding of political parties and election campaigns are rarely required to disclose their contributions. It is only required from the political parties and candidates that receive such contributions, and yet, an increasing number of private sector leaders and companies in Adhering countries are voluntarily disclosing their political contributions, or have implemented policies for general board oversight of political spending (Center for Political Accountability, 2020[34]). Such disclosure is increasingly promoted by international principles, such as the G20/OECD Principles of Corporate Governance, which state that “company disclosures should include, but not be limited to, material information on […] company objectives and non-financial information” and that “this may include disclosure of donations for political purposes, particularly where such information is not easily available through other disclosure channels” (OECD, 2015[35]).
This trend is in part driven by shareholder and investor pressures for greater transparency of corporate political spending, and to better take into account corporate lobbying and political financing as a risk to the environmental, social and governance (ESG) performance of companies. Making such disclosures more widespread would enhance public scrutiny of corporate engagement in the public policy-making process. More disclosure on lobbying and political contributions – with better transparency on ESG goals and results – would allow investors and other stakeholders to evaluate how, for example, lobbying activities and ESG initiatives might have conflicting goals.
Slovenia and the United States are the only countries that require lobbyists to report their financial contributions to political parties and election campaigns. In Slovenia, however, the information is not made public. Of lobbyists surveyed, 71% are of the opinion that lobbyists’ contributions to political finance should be transparent (Figure 2.10).
Figure 2.10. Lobbyists favour disclosure of political campaign contributions in registering lobbying activities
Source: OECD 2020 Survey on Lobbying.
Note: Respondents answered the following question: In your opinion, if the objective is to increase transparency in government decision-making, which of the following information should be public, for example through a registry?
More transparency is needed on the sources of funds for research, think tanks and grassroots organisations
One way in which different interests influence government policies is through financing third-party organisations, such as think tanks, research institutions or research more generally, and grassroots organisations. The aim is to contribute expert opinions, evidence and data, and public mobilisation to the policy-making process. As with any other form of lobbying, however, there is a risk of undue influence. Transparency around these practices is of paramount importance to allow public scrutiny, as set out in the Lobbying Principles. For decades, these practices have been used to influence public policies, with little transparency on who is behind certain think tanks and academic research. This increases the risk of providing biased or false information, with the aim of misleading or confusing public opinion or public officials (Benamouzig and Cortinas, 2019[36]; Bruckner, n.d.[37]).
More transparency on the funding of grassroots organisations would also make it possible to distinguish genuine advocacy networks from so-called “astroturfing”, the practice of creating and funding citizens’ associations/organisations, to create an impression of widespread grassroots support for a policy or agenda. This practice is ranked by a quarter of lobbyists as one of the three most challenging influence practices. By creating or contributing to “fake” or manufactured civil society campaigns, astroturfing misleads individuals and public officials, threatening the perceived legitimacy of genuine advocacy networks while serving economically powerful interests (Dan, 2018[38]; Henrie and Gilde, 2019[39]; Walker, 2014[40]).
Think tanks, research institutions and grassroots organisations have some transparency when they are acting as lobbyists themselves and when they interact and communicate with public officials. However, this is reduced when they produce research findings and recommendations, evidence and data.
The EU Transparency Register is the only transparency scheme requiring think tanks, research centres and academic institutions to disclose the source of their funding. In the absence of any other regulations, the organisations themselves can promote the establishment of solid and transparent governance structures and provide information about their funding on their websites, annual reports or even in documents related to specific research findings, evidence or data. For example, the American Economic Association requires that the funding of scholarly work be disclosed before it can be published in its journals (American Economic Association, 2021[41]). The Transparify initiative promotes transparency in think tanks’ research and advocacy, by rating the quality of their disclosure and reporting measures. It maintains that a highly transparent organisation should list all donors and clearly identify funding sources and associated amounts for specific projects. In 2018, 67 think tanks were assessed as highly transparent, compared with 41 in 2016 and 12 in 2013 (Transparify, 2018[42]).
Donors can also voluntarily disclose which organisations they fund. Confronted with transparency demands from their shareholders and the public, an increasing number of private sector leaders and their companies have started to become more transparent in their engagement with governments (see Chapter 3). This includes disclosures on lobbying activities. A few third-party initiatives and indexes measure lobbying and political financing transparency (Box 2.9). While these initiatives remain voluntary, an eventual mandatory requirement would go a long way toward adding transparency to the evidence and data used by policy makers.
Box 2.9. ESG rating agencies encourage transparency on lobbying
Existing indexes of corporate conduct, including those published by ratings agencies such as Vigeo Eiris (which was recently acquired and rebranded as V.E, an affiliate of Moody’s), measure and help investors to direct financing to socially responsible companies. In 2010, in partnership with Transparency International France, Vigeo included “the transparency and integrity of influence strategies and practices” in its corporate social responsibility rating. This builds on the Lobbying Principles and covers in-house lobbying and externalised lobbying (e.g. through think tanks, other lobbyists and trade associations) targeting legislative and regulatory processes.
Source: (Lyon et al., 2018[13]).
More transparency is needed on the use of media and social media as a lobbying tool
Using media, journalism or other public platforms is also a way to shape perceptions of the public and policy makers and ultimately influence the policy-making process. Just as with funding research, think tanks and other organisations, the so-called “journo-lobbying” is often referred to as an indirect lobbying strategy used to influence the narrative of a given policy issue. An emerging concern in recent years has the abuse of social media by special interest groups to manipulate information, misinform the public and communicate biased opinions. For example, some companies are using social media advertisements to influence the climate narrative, with positive messaging through targeted Facebook and Instagram ads promoting the benefits of increased fossil fuel production (Influence Map, 2019[43]). Other companies may also invest in social media campaigns intended to influence elections with targeted messages, for example by stressing the impact of an “unfair tax” (Graham, Daub and Carroll, 2017[44]). Those with interests that own media outlets, and a country’s lack of media pluralism can have a significant impact on the inclusiveness of the public decision-making process.
These risks call for increased transparency and public scrutiny of media ownership and the use of social media by special interests. Some countries have strong frameworks for transparency of media ownership that may be of inspiration to others. The EU Report on the Rule of Law has highlighted the importance of increasing transparency of media ownership as an essential precondition for media pluralism, but also to enable the public to evaluate the information and opinions that are disseminated by the media (European Commission, 2020[45]; Council of Europe, 2018[46]). The report shows that in a few EU member countries, there are obstacles to an effective public disclosure of ownership, or there is no effective disclosure system in place. It also highlights well-developed systems to ensure transparency of media ownership in EU Member States. For example:
In France, media companies are required to disclose their three largest owners to the public, and must notify the media authority, the Superior Audiovisual Council (Conseil Supérieur de l’Audiovisuel) when the ownership or control reaches a threshold of 10% or more. Information on the capital structure of publishers is available on the council’s website.
In Germany, there are specific obligations to disclose ownership applying to the news media sector, commercial broadcasters, online media and the press. Political parties must disclose their involvement in media entities.
In Portugal, the obligation to disclose ownership and financing of the media is set out in the Constitution, and monitoring it is the responsibility of the media authority.
As for social media, and among countries with transparency regulations on lobbying, the Canadian Register of Lobbyists and the EU Transparency Register are the only frameworks requiring lobbyists to disclose information on the use of media as a lobbying tool (Figure 2.11). In Canada, lobbyists are required to disclose any communication techniques used, which includes any appeals to members of the public through mass media, or by direct communication, aiming to persuade the public to communicate directly with public office holders, in order to pressure them to endorse a particular opinion. The Lobbying Act categorises this type of lobbying as “grassroots communication.” Similarly, the EU Transparency Register covers activities aimed at “indirectly influencing” EU institutions, including through the use of intermediate vectors such as media, public opinion, conferences or social events.
Figure 2.11. Grassroots and social media campaigns are often not covered by lobbying regulations
Source: OECD 2020 Survey on Lobbying and additional research by the OECD Secretariat.
Transparency on interests advising government ad hoc bodies is limited
Transparency about the composition of advisory or expert groups emerged as a challenge in the first report monitoring the implementation of the Lobbying Principles (OECD, 2014[3]). An advisory or expert group (hereafter “advisory group”) refers to any committee, board, commission, council, conference, panel, task force or similar group, or any subcommittee or other subgroup thereof, that provides governments advice, expertise or recommendations. Such groups are composed of public and private sector members and/or representatives from civil society and may be set up by the executive, legislative or judicial branches of government. Governments across the OECD make wide use of these groups to inform the design and implementation of public policy.
Advisory groups can help strengthen evidence-based decision making. However, without sufficient transparency and safeguards against conflict of interest, they may risk undermining the legitimacy of their advice. Private sector representatives participating in these groups have direct access to policy-making processes without being considered external lobbyists, and may, whether unconsciously or not, favour the interests of their company or industry, which may also increase the potential for conflicts of interest. The COVID-19 crisis has underscored these risks (Box 2.10).
Box 2.10. COVID-19 advisory bodies did not show full transparency
During the COVID-19 crisis, many governments have established ad hoc institutional arrangements to provide scientific advice and technical expertise to guide their immediate responses and recovery plans. In addition to government-wide emergency task forces or coordination committees, line ministries, agencies and local governments also set up their own task forces. They included scientific committees advising on healthcare policies (e.g. the Scientific Committee in France) or committees coordinating economic relief packages (the National COVID-19 Coordination Commission in Australia, and the Expert Committee on Economic and Social Matters in Italy). In the United Kingdom, the Scientific Advisory Group for Emergencies was asked to advise the government’s response to the pandemic.
In several instances, the members, terms of reference and/or mandate of these groups were published several weeks after being set up, which raised concerns. Little information was usually available on how the members of these emergency taskforces were appointed, and few had conflict-of-interest disclosure policies and oversight mechanisms in place. Previous research has shown that experts advising governments on healthcare policies may have financial ties with pharmaceutical companies producing potential treatments, which constitutes a risk that would require high levels of transparency.
As of 2019, only 47% of countries provided transparency on participants in advisory groups (Figure 2.12), leaving considerable room to increase transparency. To allow for public scrutiny, information on a group’s structure, mandate, composition and criteria for selection must be made available online. In addition, and provided that confidential information is protected and without delaying the work of these groups, the agendas, records of decisions and evidence gathered should also be made transparent. For example, the EC Advisory Panel on COVID-19 published the group’s agenda and meeting reports online (European Commission, 2020[50]). Ireland requires working groups involving members from the private sector to comply with a Transparency Code if they are to be exempt from lobbying disclosure requirements (Box 2.11).
Figure 2.12. A limited number of countries publicly disclose the composition of advisory groups
In regulatory processes at the national level, is it mandatory to disclose the names of the members of permanent advisory bodies?
Source: OECD Product Market Regulation Indicators (PMR), 2019.
Box 2.11. Transparency Code for working groups in Ireland
In Ireland, any working group set up by a minister or public service body that includes at least one designated public official and at least one person from outside the public service, and which reviews, assesses or analyses any issue of public policy with a view to reporting on it to the Minister of the Government or the public service body, must comply with a Transparency Code.
The following information must be published on the website of the public body on its establishment:
names of chairperson and members, with details of their employing organisation (if they are representing a group of stakeholders, this should be stated);
whether any members who are not public servants were formerly public officials;
terms of reference of the group;
expected timeframe for the group to conclude its work;
reporting arrangements.
In addition, the agenda and minutes of each meeting must be published and updated at least every four months.
The chairperson must include with the final or annual report of the group a statement confirming its compliance with the Transparency Code.
If the requirements of the Code are not adhered to, interactions within the group are considered to be a lobbying activity under the Regulation of Lobbying Act 2015.
Source: Department of Public Expenditure and Reform, Transparency Code prepared in accordance with Section 5 (7) of the Regulation of Lobbying Act 2015, https://www.lobbying.ie/media/5986/2015-08-06-transparency-code-eng.pdf.
Moreover, although this does not directly concern transparency, a balanced representation of interests in terms of private sector and civil society representatives (when relevant), as well as expertise from a variety of backgrounds, helps ensure equity and diversity in the advice of the advisory group. For example, the Ministry of Local Government and Modernisation in Norway published guidelines on the use of independent advisory committees, which specify that the composition of such groups should reflect different interests, experiences and perspectives (Ministry of Local Government and Modernisation of Norway, 2019[51]).
It is also necessary to adopt rules of procedures for such groups, including terms of appointment, standards of conduct, and most importantly, procedures for preventing and managing conflicts of interest. Such measures would provide reasonable safeguards against special interest groups capturing or imparting biased advice to government. In the case of scientific advisory bodies in particular, additional measures would help to strengthen the effectiveness and trustworthiness of these groups (Box 2.12).
Box 2.12. OECD recommendations for strengthening scientific advice
Governments and responsible institutions should define clear and transparent frameworks and rules of procedure for their advisory processes and mechanisms.
Governments should establish effective mechanisms for ensuring appropriate and timely scientific advice in crisis situations. They should in particular define:
institutional and individual roles and responsibilities for crisis preparedness and response at the national level, including procedures that can provide coherent and trustworthy information to the public;
mechanisms to facilitate international co-operation between advisory structures and relevant individuals with responsibility for providing science advice in crisis situations. This includes the exchange of data, information and expertise to improve preparedness, as well as co-ordination during actual crises.
Governments should work with international organisations to ensure coherence between national and international scientific advisory mechanisms on complex global societal challenges. They should in particular:
facilitate exchange of information, data and good practices between national scientific advisory bodies and relevant international bodies;
establish mechanisms, where these do not already exist, to ensure the translation and verification of international advice on global societal challenges into the national and local policy context and vice versa.
Governments and responsible institutions should implement measures that build trust in science advice for policy making. They should in particular:
ensure that advisory processes are as open and inclusive as necessary.
ensure that science advice is considered, communicated and used in a transparent and accountable manner (including training for scientists and policy makers in the practice and use of science advice).
Source: (OECD, 2015[52]).
Information disclosed is usually incomplete and does not allow public scrutiny
The Lobbying Principles state that “[c]ountries should provide an adequate degree of transparency to ensure that public officials, citizens and businesses can obtain sufficient information on lobbying activities”. They add that “[d]isclosure of lobbying activities should provide sufficient, pertinent information on key aspects of lobbying activities to enable public scrutiny. It should be carefully balanced with considerations of legitimate exemptions, in particular the need to preserve confidential information in the public interest or to protect market-sensitive information when necessary.” Yet, where countries do provide some level of transparency on lobbying activities, the information disclosed is sometimes insufficient to understand the breadth and depth of those activities. Access to information or freedom of information laws and frameworks are also a useful mechanism to ensure transparency and scrutiny, yet in practice, their implementation is still incomplete (Access Info Europe, Centre for Law and Democracy, n.d.[53]). As for the information disclosed on lobbying activities, two issues seem to be an obstacle to enhancing transparency and public scrutiny:
Information on the objective of the lobbying activity is limited.
The timing of disclosures does not allow for public scrutiny.
Information on the objective of the lobbying activity is limited
The Lobbying Principles explicitly state that disclosure should capture the objective of the lobbying activity. However, in practice, information that helps illuminate the basis of the lobbying activities and enables public scrutiny is often missing. Countries that publish information through lobbying registries and open agendas disclose some information identifying who is behind lobbying activities, but not as much on which decisions and public organisations are specifically targeted (Figure 2.13), as well as how lobbying is being conducted (Figure 2.14 and Annex Table A A.4).
Figure 2.13. Transparency on the specifics of the objectives of lobbying is limited
Disclosure of the specific legislation, proposals, regulations or decisions targeted by lobbying activities
Source: OECD 2020 Survey on Lobbying, and additional research by the OECD Secretariat.
The information disclosed by lobbyists and/or public officials may not all be made public. Annual reports on lobbying activities disclosed by lobbyists to the Commission for the Prevention of Corruption in Slovenia, for example, are not published on the register. The commission only publishes an analysis of the annual reports. The public can obtain individual reports through the Public Information Access Act.
Disclosure requirements may also differ depending on the public institution or official targeted, and may need to respect different timing. In Canada, for example, registrations are filed as soon as lobbyists communicate with public office holders and describe the objective of lobbying activities in detail. In addition, “monthly communication reports” are filed if registered lobbyists communicate with senior federal officials (referred to as “designated public office holders”). The monthly communication report, filed no later than the 15th of the month after the communication took place, includes the names of those contacted, the date the communication took place, and the general subject matter of the communication (for example, “Health”, “Tourism”, etc.).
Lastly, in addition to lobbying registers and open agendas, other countries provide transparency on lobbying by mandating ex post disclosures of how decisions were made. The information disclosed can be a table or a document listing the identity of lobbyists met, public officials involved, the object and outcome of their meetings, as well as an assessment of how the input received was factored into the final decision (Igan and Lambert, 2019[54]). Poland and Latvia have such requirements (Box 2.13).
Box 2.13. Ex post disclosures of how decisions were made in Poland and Latvia
Publication of a legislative footprint in Poland
Poland provides transparency on lobbying activities through a register of entities performing professional lobbying, as well as lists of registered persons administered by the chambers of parliament (the Sejm and the Senate). Managers of public authorities must publish, once a year and by the end of February, information on the actions taken against them by lobbyists.
In addition, the Standing Orders of the Sejm (Article 201c) provides for the publication of proposals, expert opinions and legal opinions submitted by lobbyists to Committees working on a specific bill. The documents are made available on the Sejm’s Information System. The Senate Regulations (Article 63) also specify that the rapporteur of a committee reporting on legislation must indicate when activities are performed by professional lobbyists in the course of committee work. They must also present the committee’s position on the proposals presented by lobbyists.
Latvia
In Latvia, employees covered by transparency requirements are required to inform the direct manager or the head of the institution of any anticipated meeting with lobbyists, and disclose the information received from lobbyists, including what interests they represent, what proposals were expressed, and in what way they have been considered.
If the proposal expressed by lobbyists is considered in drafting or making a decision, this must be indicated in the document related to such a decision (e.g. in the summary, statement, cover letter) and, where possible, made publicly available.
Source: Additional research by the OECD Secretariat.
Figure 2.14. Who is conducting lobbying activities, on what and how?
Source: Additional research by the OECD Secretariat.
The timing of disclosures does not allow for public scrutiny
In countries where transparency on lobbying activities is required, different disclosure schedules may be enforced, with, for example, monthly disclosures required in Canada and yearly disclosures required in France (Table 2.3). Evidently, this affects the possibility of public scrutiny, as sporadic information may not allow stakeholders to properly scrutinise lobbying activities. Extended schedules may lead to disclosures of lobbying activities after the decisions targeted by the activities have already been made, which directly compromises the relevance of transparency. In Canada, on the other hand, the requirement that lobbyists publish monthly communication reports allowed publication of timely information on COVID-19-related lobbying activities, which indicated the objectives of the lobbying activities as well as the public officials and policies targeted. Recognising that “Canadians have the right to know who was communicating with our decision makers and about what subjects during these unprecedented times”, Canada’s Office of the Commissioner of Lobbying provided regular reminders on registration deadlines, including through social media.
In May 2020, the Office also introduced a new feature to the online Registry of Lobbyists, enabling users to view lobbying registrations related to COVID-19. The tool uses as research criteria all the registrations in which the terms “COVID-19”, “COVID”, “Coronavirus”, and “pandemic” are included in the lobbying subject matter details. Users can then filter information per activity type, topic and government institutions targeted, and access the related monthly communication reports. The Office also issued guidelines on COVID-19 emergency funding and registration requirements, to guide lobbyists on whether applying for a federal government funding program linked to COVID-19 should be disclosed, and when to update the information (Office of the Commissioner of Lobbying of Canada, 2020[55]).
Table 2.3. Frequency of disclosures on lobbying activities in selected countries
Source: Additional research by the OECD Secretariat.
Engagement with lobbyists and digital tools are used to promote compliance
The Lobbying Principles indicate that transparency requirements cannot achieve their objective unless regulated actors comply with them and they are properly enforced by oversight entities. Adherents are encouraged to employ a “coherent spectrum of strategies and mechanisms” to ensure compliance with transparency measures. Compliance and enforcement of transparency measures usually rest on a combination of monitoring actions by oversight bodies, the provision and application of sanctions, and facilitating channels for reporting non-compliance.
To promote compliance with transparency requirements, countries use several measures through their oversight institutions. These include providing a convenient online registration and report-filing system, raising awareness of the regulations, verifying disclosures on lobbying, and applying visible and proportional sanctions. In countries that require transparency on lobbying activities, both tools and institutions are used to monitor compliance. The main findings can be summarised as follows:
Engagement with lobbyists and public officials encourages compliance with transparency requirements.
Digital tools and automatic verifications are useful for increasing public scrutiny.
Engagement with lobbyists and public officials encourages compliance with transparency requirements
All countries with a transparency register on lobbying activities have an institution or function responsible for monitoring compliance (Table 2.4). Similarly, to provide oversight of the financing of political parties and election campaigns, countries also have an oversight body or a combination of bodies, parliaments, constitutional courts, supreme audit institutions, ministries or judiciary bodies (OECD, 2016[56]). However, there is usually no compliance or verification activities related to the obligation for public officials to publish meeting with lobbyists through so-called “open agendas”.
Table 2.4. All the countries that require transparency in lobbying activities have an oversight body
Source: OECD 2020 Survey on Lobbying and additional research by the OECD Secretariat.
Some oversight bodies have indicated that the resources they have to exercise their functions are inadequate. In Lithuania, the Chief Official of the Ethics Commission concluded that it did not have the resources to monitor compliance and enforce sanctions (Chief Official Ethics Commission, 2019[57]). In Canada, the Office of the Commissioner of Lobbying concluded in its Annual Report 2018-19 that “to ensure ongoing sustainability of the office and to invest in the technological improvements required for the Registry, there is a need for increased funding” (Office of the Commissioner of Lobbying of Canada, 2019[58]).
Most of these bodies or functions monitor compliance with disclosure obligations and whether the information submitted is accurate, presented in a timely fashion and complete. Chile, by contrast, relies solely on the public availability of lobbying disclosures and reports of potential misconduct to detect breaches and promote compliance with lobbying rules and guidelines.
Targeted verifications are also conducted in sectors considered to be at higher risk or during particular periods. In Canada in 2018-19, the Office of the Commissioner of Lobbying conducted parallel investigations involving 19 corporations and organisations that had provided sponsored travel to members of the House of Commons and the Senate between 2009 and 2016. It also sent six advisory letters after a targeted compliance analysis of the cannabis industry, which involved a verification of 200 corporations and organisations (Office of the Commissioner of Lobbying of Canada, 2019[58]). In Australia, the Attorney-General’s Department, which oversees both the Lobbying Code of Conduct and the Foreign Influence Transparency Scheme, put additional safeguards in place during election periods. The department also supported the whole-of-government, multi-agency Electoral Integrity Assurance Taskforce by providing assessments of the applicability of the scheme to particular activities and their impact on the integrity of the election (Attorney-General's Department, 2019[59]).
Enforcement actions and sanctions for non-compliance, along with the disclosure obligations, are a necessary complement of monitoring and verification of activities. Sanctions usually cover the following types of breaches related to lobbying-related disclosures:
not registering and/or conducting activities without registering
not disclosing the information required or disclosing inaccurate or misleading information
failure to update the information or file activity reports on time.
Countries that have established lobbying rules and guidelines provide for a range of graduated disciplinary or administrative sanctions, such as warnings or reprimands, fines, debarment and temporary or permanent suspension from the registry and prohibition to exercise lobbying activities. A few countries have criminal provisions leading to imprisonment (Figure 2.15). Similarly, the legal framework may provide for a variety of sanctions for breaches of political finance laws such as failing to submit accurate financial reports, receiving funds from prohibited sources, exceeding spending limits, abusing state resources or buying votes. These sanctions may include fines, imprisonment, loss of public funding, forfeiture, deregistration of a party, loss of nomination of a candidate, or loss of elected office or loss of political rights (Hamada and Agrawal, 2020[33]; OECD, 2016[56]).
Figure 2.15. Sanctions for lobbyists and public officials who breach standards and disclosure requirements related to lobbying activities
Source: Additional research by the OECD Secretariat.
While sanctions can have a deterrent effect, compliance activities of oversight bodies tend to favour communication and engagement with lobbyists and public officials. Regular communication with them on potential breaches appears to encourage compliance without the need to resort to enforcement. For example, sending reminders to lobbyists and public officials about mandatory reporting obligations can mitigate the risk of non-compliance (Box 2.14). In the context of the COVID-19 crisis, oversight entities have continued to raise awareness of reporting obligations and deadlines. If crisis-related circumstances prevent lobbyists from filing reports on time, some entities have provided guidance or ensure that a contact point is available to provide advice on what is acceptable in specific circumstances. For example, the California Fair Political Practices Commission published a statement offering guidance on lobbying filing deadlines in the wake of COVID-19 (FPPC, 2020[60]). In Canada, the Office of the Commissioner of Lobbying continued to communicate registration deadlines during the pandemic, including through social media (Office of the Commissioner of Lobbying of Canada, 2020[55]).
Box 2.14. Automatic alerts to raise awareness of disclosure deadlines produce results
Australia
Registered organisations and lobbyists receive reminders about mandatory reporting obligations in biannual e-mails. Registered lobbyists are reminded that they must advise of any changes to their registration details within 10 business days of the change, and confirm their details within 10 business days of 31 January and 30 June each year.
France
Lobbyists receive an e-mail 15 days before the deadline for submitting annual activity reports.
Germany
If no updates are received for more than a year, lobbyists receive an electronic notification requesting them to update the entry. If the information is not updated in three weeks, their file is marked “not updated”.
Ireland
Registered lobbyists receive automatic alerts at the end of each of the three relevant periods, as well as deadline reminder e-mails. Return deadlines are also displayed on the main webpage of the Register of Lobbying.
United States
The Office of the Clerk of the House of Representatives provides an electronic notification service for all registered lobbyists. The service gives e-mail notice of future filing deadlines or relevant information on disclosure filing procedures. Reminders on filing deadlines are also displayed on the Lobbying Disclosure website of the House of Representatives.
Source: Australia: (ANAO, 2018[61]); France: (HATVP, 2019[62]); Ireland: https://www.lobbying.ie/help-resources/information-for-lobbyists/best-practices-for-lobbying/; United States: https://lobbyingdisclosure.house.gov/subscribe.asp.
In addition to formal notices, fines also have the potential to incentivise compliance and resolve cases of late returns or registrations. Since the entry into force of the Lobbying Act in Ireland, the Standards in Public Office Commission has focused on encouraging compliance with the legislation by engaging with registrants to resolve any non-compliance, including by issuing fixed payment notices for late return filings, before initiating prosecution proceedings (Standards in Public Office Commission, 2019[63]). The commission concluded that increased communication and outreach activities with registered lobbyists at an early stage of the process reduced the number of files referred for prosecution in 2018. Most lobbyists complied with their obligations, once contacted by the investigations unit (Box 2.15).
Box 2.15. Ireland’s Standards in Public Office Commission has the authority to pursue breaches
The Irish Regulation of Lobbying Act 2015 on enforcement provisions (Part 4) gives the Standards in Public Office Commission the authority to conduct investigations into possible contraventions of the Act, to prosecute offences and to issue fixed-payment notices of EUR 200 for late filing of lobbying returns.
The commission reviews all registrations to make sure that all who are required to register have done so and that they have registered correctly. It can also, by providing notice to a given registrant, request further or corrected information if it considers an application is incomplete, inaccurate or misleading.
The commission established a separate Complaints and Investigations Unit to manage investigations and prosecutions. The unit also sets up procedures to investigate non-compliance in relation to unreported lobbying by both registered and non-registered persons, as well as failure to comply with the requirement to post returns, or a failure to post lobbying activity in a timely fashion:
Unregistered lobbying activity is monitored through open-source intelligence such as media articles, the Register itself, or complaints or other information received by the commission;
Late returns by registered persons are monitored on the basis of the information available on the lobbying register relating to the number of late returns and non-returns after each return deadline. The online register is designed to issue fixed payment notices automatically to anyone submitting a late return on lobbying activities. If the payment is not paid by the specified date, the commission prosecutes the offence of submitting a late return.
As noted in the commission’s annual reports, in most cases, receipt of the notice was enough to secure compliance. In 2017, the year the enforcement provisions went into force, no convictions nor investigations were concluded. In 2018, 26 investigations were launched to gather evidence on possible unreported or unregistered lobbying activity, of which 13 were discontinued (in part because the person subsequently came into compliance with the Act) and 13 were ongoing at year’s end.
The commission noted that the 270 notices issued for the three relevant periods in 2018 were significantly fewer than the 619 issued in 2017, a marked improvement in compliance with the deadlines.
For serious cases, strict enforcement and sanctions may be the only way to ensure compliance. In France, the deterrent effect of non-graduated criminal sanctions was apparently limited and ineffective (Box 2.16).
Box 2.16. A graduated system of administrative sanctions appears to be preferable
The early attempts by France’s High Authority for Transparency in Public Life (HATVP) to ensure compliance with the requirements have raised questions about the relevance of the sanctions established under the law. Lobbyists who do not comply with their reporting obligations face a criminal penalty of up to one year of imprisonment and a fine of EUR 15 000. The sanction is similar in the event of non-compliance with ethical obligations. The maximum amount of these fines is higher for legal persons.
The HATVP concluded that the choice of criminal sanctions was not necessarily the most appropriate way to punish breaches, due to the long and cumbersome procedures, potentially leading to a sentence that was likely to be perceived as light by the person concerned. It also concluded that the maximum amount for fines incurred for legal persons (EUR 75 000) is negligible for large companies. The scope of the regime is further weakened by the difficulty of establishing intention in committing the offence. The HATVP recommended introducing a graduated system of administrative sanctions, allowing it to provide a rapid, proportionate response through direct financial penalties.
Source: (HATVP, 2019[62]).
Lastly, a few countries collect statistical data on the application of sanctions (Box 2.17). The data collection activity on enforcement is either non-existent or scarce and fragmented. As a result, most parliamentarians and lobbyists surveyed reported that they knew of no sanctions being applied. Only 10% of parliamentarians surveyed reported that they knew of sanctions that had been applied in the previous 12 months for non-disclosure of information required by lobbying-related regulations. More than half (58%) of the lobbyists surveyed are aware of the existence of penalties or sanctions for failing to comply with lobbying codes of conduct, but only 11% reported that they knew of any lobbyists who had been sanctioned in the previous 12 months for breaching lobbying-related regulations.
Box 2.17. Annual publication of compliance and enforcement statistics in the United States
The US Attorney’s Office for the District of Columbia creates summary records from its database on the number of pending referrals, which are notifications that it receives from the Secretary of the Senate and the Clerk of the House of Representatives about possible non-compliance of a lobbyist or lobbying firm with the Lobbying Disclosure Act. Referrals remain in the pending category until they are resolved, and become compliant if the lobbyists comply with the obligation after receiving an e-mail, phone call or a non-compliance notification letter.
This information is published in the US Government Accountability Office’s annual report on compliance with disclosure requirements. For activity reports, about 40% of the total referrals received for filing years 2009 through 2018 are now compliant, since lobbying firms either filed their reports or terminated their registrations.
Source: (GAO, 2019[65]).
Digital tools and automatic verifications are useful for increasing public scrutiny
In countries where there is some level of transparency on lobbying activities, the use of digital technology to disclose information and make it available to the public facilitates public scrutiny. In most cases, there are single databases (lobbying registries) that are searchable, and to a lesser extent, the data is in an open format (Table 2.5). This facilitates the reusability and cross-checking of data. However, the information is not always available in a readable format. Some lobbying registers take the form of a list in PDF format (e.g. Lithuania, Mexico). Disclosure of information needs to be organised in an intelligible and user-friendly way if it is to be useful. Ideally, all reports should be submitted and published in a standardised, machine-readable format through a data download, an Application Program Interface or in an RSS (Really Simple Syndication) feed. This would ensure comparability, clarity and intelligibility. In Canada, France and Ireland, for example, information in lobbying registers is available in an open data format.
Table 2.5. Online availability of lobbying registries
Source: Additional research by the OECD Secretariat.
A key challenge is to design tools to collect and manage information on lobbying practices, so that it can be published in an open, re-usable format and used to analyse trends in large volumes of data. Improvements in the way data is collected and presented could also include streamlining how lobbyists and other entities are identified in registries. Entities should be designated with a unique ID number or reference so their information is easily searchable. This would eliminate confusion resulting from single entities (e.g. corporate subsidiaries) being associated with multiple entries in a register. Increasing the interoperability of databases and the use of “one-stop-shops” for transparency (i.e. aggregating data on a single website, to allow cross-checking of data sources) could also optimise the potential for transparency.
While it may take various forms, public institutions’ data visualisations and dashboards ease access to and understanding of large volumes of data collected through registries, open agendas and databases. In April 2020, the Canadian Office of the Commissioner of Lobbying launched a new Registry with improved user experience which includes an easy-access search function, dashboards and graphics. The office plans to monitor usage and address user feedback to improve the interface. Similarly, a platform developed by Chile’s Council for Transparency presents data in a comprehensible format (Box 2.18).
Box 2.18. Chile’s innovative platform presents data on influence on national public decisions
In Chile, the Council for Transparency has developed a platform to present data on public officials’ hearings and meetings, travels and gifts. The example below shows data visualisation in the section on hearings and meetings, which allows individuals and organisations to filter information and view infographics and trends on companies, including meetings between different types of interests.
The datasets can be downloaded to review or reuse further data collected by the Council.
Source: https://www.infolobby.cl/.
Using data analytics and artificial intelligence can facilitate the verification and analysis of data. In Estonia, the electoral management body is now using technology to monitor campaign activities for wrongdoing (Box 2.19). France requires the electronic submission of registration and activity reports with features that facilitate disclosures. Its HATVP has now set up an automatic verification mechanism using an algorithm based on artificial intelligence, to detect potential flaws upon validation of annual lobbying activity reports (Box 2.20).
Box 2.19. Estonia’s use of technology in electoral management
The Estonian Party Funding Supervision Committee oversees the public funding system, financial reporting, investigation, audit and compliance. It is also responsible for sanctioning campaign finance violations. The committee has a staff of only nine committee members, a legal advisor and an office manager, thanks in part to its use of technology. The committee requires all financial reports to be completed in an online spreadsheet, which allows the staff to easily organise, access and review financial documents in a consistent form. In addition, the financial information can be published quickly in a searchable online database for access by the public and the media.
Source: (OECD, 2020[66]).
Box 2.20. France is using artificial intelligence to enhance the quality of annual lobbying reports
In France, registered lobbyists must submit an annual activity report to the High Authority for Transparency in Public Life (HATVP) within three months of the lobbyist’s financial year. In analysing the activity reports for the period 1 July 2017 to 31 December 2017, the HATVP noted the poor quality of some of the activity reports, due to a lack of understanding of what should be disclosed. Over half of the 6 000 activity reports analysed did not meet any of the expected criteria. Often, the section describing the issues covered by lobbying activities – identified by their purpose and area of intervention – was used to report on general events, activities or dates of specific meetings.
In January 2019, the HATVP set up various mechanisms to enhance the quality of information declared in activity reports. Practical guidance was provided explaining how the section on lobbying activities should be completed, with a pop-up window presenting two good examples. An algorithm based on artificial intelligence was established to detect potential defects on validation of the activity report, and detect incomplete or misleading declarations.
Source: OECD 2020 Survey on Lobbying.
Ensuring the collection and disclosure of data in an open format, and automating some of the cross-checking are other options for increasing scrutiny. This may involve further interoperability of the various databases, opening their access (to other administrations or to the public) and ensuring real-time updates. Cross-checking available information makes it possible to assess the consistency between data provided from various sources. For example, information within lobbying registries can be cross-checked with political finance contributions or open agendas. Digital tools and alert systems used to monitor movements between the public and the private sector can be based on available open information (e.g. news media, civil society and watchdog reports, interest and asset disclosure and trade registries). Few countries, however, have set up such mechanisms. In Slovenia, for example, public officials, civil servants and lobbyists are required to report each occurrence of lobbying, including gifts received or offered, to the Commission for the Prevention of Corruption. The commission publishes the reports and gifts disclosure in the public sector transactions record, in an open online database named ERAR. This allows for the processing and cross-checking of available public financial data. In the United States, the Supreme Audit Institution (SAI), the Government Accountability Office, relies on the accessibility of databases as well as on the informal exchange of information between entities to cross-check lobbying disclosure requirements and political contributions (Box 2.21).
Box 2.21. Cross-checking lobbying disclosures and political contributions in the United States
In the United States, the Lobbying Disclosure Act requires disclosures on both lobbying activity and political contributions. To determine whether lobbyists reported their federal political contributions, as required by the Act, the Government Accountability Office (GAO) analysed stratified random samples of year-end 2017 and mid-year 2018 semi-annual political contributions reports. The samples contained 80 reports listing contributions and 80 that listed no contributions. Contributions listed on lobbyists’ and lobbying firms’ political contributions reports were compared against political contributions reported in the Federal Election Commission database, to identify whether the reports omitted any contributions.
The GAO estimated that in 2018, lobbyists failed to disclose one or more reportable contributions on 33 percent of reports. Eight political contributions reports were amended in response to its review.
Source: (GAO, 2019[65]).
Audit and review of the rules and guidelines on lobbying is limited
The Lobbying Principles state that “[c]ountries should review the functioning of their rules and guidelines related to lobbying on a periodic basis and make necessary adjustments in light of experience.” This makes it possible to identify strengths, loopholes and implementation gaps to meet evolving public expectations for transparency in decision-making processes, and to ensure that regulations account for the many ways in which interests can influence the policy-making process. The following trends were noted:
A limited number of countries have carried out audits and reviews.
External oversight has proven valuable in identifying gaps in implementation.
A limited number of countries have carried out audits and reviews
The regular review of established lobbying rules and guidelines, and how they are implemented and enforced, helps to strengthen the overall framework on lobbying and to improve compliance. Ireland has incorporated provisions for a review mechanism in its lobbying legal framework (Box 2.22); but few other countries have set up such mechanisms in their rules and guidelines.
Box 2.22. Review of the Lobbying Act in Ireland
The Lobbying Act provides (in Section 2) for regular reviews of the operations of the Act. The first review of the Act took place in 2016. The report takes into account input received by key stakeholders, including those carrying out lobbying activities and the bodies representing them. No recommendations were made by the government for amendments of the Lobbying Act. Subsequent reviews must be conducted every three years.
The first report found a high level of compliance with legislative requirements. Lobbyists highlighted the need for further education, guidance and assistance, which prompted the commission to review its communication activities and guidance to lobbyists.
In its submission to the first review of the operation of the Act, the commission recommended that any breaches of the cooling-off statutory provisions should be made an offence under the Act. It also noted the lack of power to enforce the Act’s post-employment provisions or to impose sanctions for persons who fail to comply with these provisions.
The Code of Conduct for persons carrying out lobbying activities, which came into effect on 1 January 2019, will also be reviewed every three years.
To understand the factors that influence compliance, other countries may conduct reviews on an ad hoc basis, for example by publishing information and analyses of their monitoring and enforcement activities in their annual reports, or by organising workshops with stakeholders. Most countries that undertake internal reviews of their lobbying framework include the feedback of those who are covered by lobbying-related regulations. In Canada, for example, the Office of the Commissioner of Lobbying updated its guidance documents in 2018-2019 on how to mitigate conflicts of interest related to preferential access, political activities and gifts. This change was made to reflect feedback received from lobbyists who contacted the Office directly for advice and to make the guidance easier to apply. The Office also consulted with stakeholders, including counterparts and associations representing lobbyists (Office of the Commissioner of Lobbying of Canada, 2019[58]).
In 2018, France’s HATVP organised two working sessions with 19 lobbyists from various sectors to gather their feedback and expectations of support, to reflect on any difficulties they had encountered and to discuss tools that would facilitate disclosures of lobbying activities (HATVP, 2019[62]). In Lithuania, both the Special Investigation Service and the Chief Official Ethics Commission have stated that the Law should be improved. As a result, the Government instructed the Ministry of Justice to organise consultations between relevant institutions, businesses and civil society organisations to prepare amendments to the Law, to increase the effectiveness of supervision (Chief Official Ethics Commission, 2019[57]).
External oversight has proven valuable in identifying gaps in implementation
External reviews have the potential to assess whether lobbying frameworks have achieved their intended objectives, as well as to assess their continued relevance. This can take the form of external audits performed by supreme audit institutions or reports by a parliamentary commission. In the United States, for example, the compliance monitoring approach includes annual reviews of lobbyists’ compliance with disclosure requirements conducted by the GAO, which is also an opportunity to assess the adequacy of resources to enforce compliance and the effectiveness of compliance activities. In its latest report, it stated that the Attorney’s Office for the District of Columbia had sufficient resources to enforce the Lobbying Disclosure Act, which includes imposing civil or criminal penalties for non-compliance (GAO, 2019[65]).
In other countries, external reviews are not systematic and take place on an ad hoc basis. In 2020, the Australian National Audit Office (ANAO) released an audit report to examine how effectively the Attorney-General’s Department’s had implemented the recommendations of an audit report published in 2018. Members of the public had the opportunity to contribute to the audit by submitting their input on an online portal (ANAO, 2018[61]; ANAO, 2020[67]). In Ireland, at the request of the Audit and Risk Committee of the Office of the Ombudsman, the external auditors to the committee were asked to carry out an audit review of the administrative procedures of the Standards in Public Life Commission’s operational and statutory activities on lobbying. In Canada in September 2020, the House of Commons Standing Committee on Access to Information, Privacy and Ethics began a study on “Questions of conflict of interest and lobbying in relation to pandemic spending”. The committee also requested preliminary recommendations from the commissioner of lobbying to improve the Lobbying Act (Office of the Commissioner of Lobbying of Canada, 2021[68]).
In some cases, the reviews noted how the lobbying provisions had failed to live up to the initial objectives of the lobbying framework (Box 2.23) and made proposals to improve the transparency framework for lobbying activities (Box 2.24 and Box 2.25). Given the potential of external reviews to identify gaps in implementation, regular exercises by SAIs and other oversight bodies could help increase transparency in policy making.
Box 2.23. Parliamentary review sheds light on the limitations of France’s legal framework
The preliminary conclusions of a parliamentary review of the lobbying legislative framework, currently under way, concurred with the HATVP’s own assessments that progress still needs to be made to enable a legislative footprint, the initial objective of the lobbying framework. The report concludes that the “promising legislative framework has, in fact, been implemented in a limited way, and has not been able to achieve the objectives of the legislator”.
The findings revealed that many actors and actions aiming to influence the legislative process were not accounted for in the legislative framework. For example, hearings made at the request of a member of Parliament are not included in the definition of lobbying, even if the practice is frequent. These communications may take the form of briefing notes or proposed amendments sent by a company or organisation at the request of a parliamentarian or a hearing one might organise as part of legislative work. They might also include a phone call at the initiative of an employee of a public official covered by the lobbying legislative framework, asking for clarification after a meeting with the representative of a company or organisation. In the event of a potential breach, this exclusion makes it difficult to trace who initiated a meeting or phone exchange, especially when relations between a parliamentarian and an interest representative are well established. It also creates distortions between lobbyists. Those who have built close, regular contacts with decision makers may have fewer reporting obligations than interest groups with more limited contacts, who are almost always the initiators of such exchanges.
Source: (HATVP, 2019[62]; Waserman, 2020[69]).
Box 2.24. The Parliament Working Group on Lobbying Transparency Regulation in Latvia
In September 2019, the parliament of Latvia created a Working Group on Lobbying Transparency Regulation. This followed earlier attempts to regulate lobbying, including several concept papers published by the Corruption Prevention and Combating Bureau, and a draft “Lobbying Transparency Law” submitted in 2014 to the Government Cabinet, which failed to obtain sufficient political support.
The 2019 Working Group includes representatives of all parliamentary groups, state institutions such as the State Chancellery, the Corruption Preventing and Combating Bureau, the Ministry of Justice and constitutional experts and representatives of Transparency International Latvia.
Up to January 2021, nine meetings of the Working Group were held, including three meetings organised online due to the COVID-19 crisis. Several consultation meetings were organised in February 2021 with non-governmental organisations and business associations, including a meeting organised by the NGO Civic Alliance Latvia. After this series of public consultations, work on the draft law resumed, and a draft “Interest Representation Transparency Law” is expected to be finalised in 2021.
The parliament’s Analytical Service also produced a study on “Lobbying regulation and trends in Latvia and Europe”, which aims to help set up a new framework on lobbying in Latvia.
Source: Information provided by Latvia in the OECD 2020 Survey on Lobbying; Analytical Service’s report: https://www.saeima.lv/petijumi/Lobesana_Latvija_un_Eiropa_2019.pdf; Working Groups webpage: https://aizsardziba.saeima.lv/darba-grupa-lob%C4%93%C5%A1anas-atkl%C4%81t%C4%ABbas-likuma-izstr%C4%81dei .
Box 2.25. Netherlands proposal to improve equity and transparency in policy making
In 2015, two members of Parliament published a consultation document – “Lobby in daylight: Listen and show” – with a set of proposals to increase transparency in lobbying activities, including:
For each major policy topic and bill (or amendment thereof), include in the explanatory notes a “lobbying section” indicating which interests have contributed and how their proposals were considered.
Publish the agendas of ministers.
Publish members of Parliament’s meetings with lobbyists.
The proposals had three main goals, with the objective to “listen to different interests and show how the interests have been weighed”:
Give all interests equal opportunity to influence legislation and decision making, not just powerful interest groups and large organisations.
Gather input from a broad set of interests, to increase the quality of the proposals.
Better inform the House of Representatives in its role of assessing the proposals and positions of different interests.
Source: Netherlands Parliamentary Monitor, https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vk04eb7xyfwj
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