Written by Marie Thiel, Elisabeth Bauer and Irene Vlad (Transparency Unit).
On 10 May 2017 a public workshop entitled ‘EU Transparency Register – lobbying, Parliament & public trust’ to exchange best practices and models for lobby regulation at national and EU level took place at the European Parliament in Brussels. The event was hosted by Parliament’s lead negotiators for upcoming negotiations with the Council and the Commission (on a Commission proposal for an inter-institutional agreement establishing a mandatory Transparency Register), Danuta Hübner (EPP, Poland – Chair of the Constitutional Affairs Committee) and Sylvie Guillaume (S&D, France – Parliament’s Vice-President responsible for the Transparency Register). Speakers included fellow national parliamentarians, practitioners and academics, as well as EU Ombudsman Emily O’Reilly.
The aim of the workshop was for Members of the European Parliament, as well as the public, to hear about national experiences with lobbying regulation, and to discuss best practices and the technical aspects of such regulation. Academics attended to discuss public expectations in terms of transparency, and stakeholders were welcome to share their opinions and experiences of the systems already in place.
PANEL 1: National lobbying regulation
Chair of AFCO, Danuta Hübner welcomed participants to the first panel on national lobbying regulation, starting with former MEP and former member of the Swedish Riksdag, Olle Schmidt. Schmidt explained that Sweden has rejected a lobbying register on several occasions. Swedish laws on freedom of the press and freedom of information have helped to create a strong tradition of transparency in the country, over and above any rules on lobbying. The Swedes find that denying access to any particular interest group to decision-makers would be undemocratic, as it would give certain stakeholders priority over others. Schmidt is in favour of the EU Transparency Register, which he considered well-suited to the Brussels environment, but he stressed that lobby regulation was no ‘silver bullet’ to right all wrongs.
Introducing the Austrian register for lobbyists, Dietmar Dokalik, Head of Unit in the Directorate General for Civil Law of the Austrian Federal Ministry of Justice, explained its genesis (the 2013 Austrian Transparency Act) and aim to promote good governance. Although the system is criticised as weak, Dokalik argued that more public scrutiny and increased transparency have led to better quality law-making and ultimately greater acceptance of the decision-making process by the general public.
Stewart Stevenson, Member of the Scottish Parliament, wrapped up the first panel with his account of the Scottish system, via video link-up. Approved in 2016, transparency rules in Scotland are designed to be light; it is only necessary to register in Scotland after a lobbying contact with a public officer has taken place. The register, while including the government in its scope, does not apply to MSPs when they are in contact with their constituents.
In the ensuing question and answer session with the audience, it emerged that in all three countries, the media was key to holding politicians to account, irrespective of any lobbying regulation. In Europe, it seems that a growing number of Member States are seeking to put regulation of lobbying activities in place to ensure the transparency of and balance between inputs from the private sector and from civil society to the decision makers. The most recent additions are France and Ireland.
PANEL 2: Effective implementation of lobbying regulation
EU Ombudsman Emily O’Reilly introduced the second panel dedicated to practitioners of lobbying regulation, by reminding of her own recommendations on transparency and practical guidelines for public officials interacting with interest representatives. The Canadian Lobbying Commissioner, Karen Shepherd, Ireland’s first Head of Lobbying Regulation, Sherry Perreault, and David Ginocchi from the French Haute Autorite de la Transparence de la Vie Publique (HATVP), each gave an overview of how their respective laws regulating lobbying were set up, the obligations for lobbyists, and how they are pursuing implementation.
While a register has yet to be set up in France, following the recent adoption of the Loi Sapin II, David Ginocchi is part of a team of 10 staff ensuring that their future system will be ready as soon as the law enters into force on 1 July 2017. The new French register will have to cater for all the different levels of government covered by the law, including government, parliament, presidency, state, and local administrations (representing more than 20 000 officials), and have it ready for roll out in the autumn.
Prior to the implementation of the new Lobbying Act in Ireland in September 2015, Sherry Perreault travelled the country as part of an outreach campaign, which included a trial period for the returns that registered lobbyists are expected to provide, accounting for their contacts with what is known as designated public officials (DPOs), three times a year. As part of the question and answer session following the presentation, she was also able to confirm that Irish MEPs and the Permanent Representative of Ireland to the EU are indeed covered by the legislation. In keeping with the incremental implementation of the Irish scheme, the sanctions mechanism envisaged in the law only applied from January 2017 and a Code of Conduct for lobbyists has yet to be developed.
While Canada has regulated lobbying since 1965, its most recent incarnation, the Lobbying Act of 2008, requires lobbyists to provide monthly returns on their lobbying activities and bestows upon the Commissioner the power to investigate, subpoena evidence and issue fines, as Karen Shepherd explained. Nevertheless, her 28-strong staff spend much of their time raising awareness and educating on compliance, as well as performing random monitoring of registrations and following press reports.
Questions from the floor covered details of the respective enforcement mechanisms, exemptions and uses of the registers. It emerged that the media seemed to be the most frequent users of information made available on the registers.
PANEL 3: Finding a balance between rights, obligations, and public expectations
The academics discussed the public’s transparency expectations for lobbying regulation in the third and final panel.
An expert in constitutional law, Professor Martin Nettesheim, from Tübingen University, recalled that transparency could not be an end in itself, but had to be a means to an end (Unionsrechtliches Gesetzgebungsverfahren und Interessenvertretung). In the case of the EU institutions, the decision-making processes should be made open and accessible. Lobbying is a legitimate part of this process and efforts should be made to ensure that a level playing field exists among all stakeholders (including citizens) affected by EU legislation. Regulating lobbying could result in distortion of access. Another principle to keep in mind is the independent mandate of MEPs, who should be able to vote according to their conscience and in the best interest of the public. In consequence, any measures MEPs might adopt to improve transparency, such as providing a legislative footprint annexed to their reports, should remain voluntary. Having said this, Professor Nettesheim also acknowledged that the norms and the times seemed to be changing and along with these, public expectations.
Professor Sabine Saurugger from Sciences Po, Grenoble, examined the issue by casting a wider net as to the definition of lobbying and accountability of politicians (Lobbying or interest representations). While lobbying regulation needs to provide a very precise definition of what lobbying activities were to be measured, political decision-making also depends on other factors than lobbying, such as pressure from the media, the need to realise electoral pledges, or even public protests and demonstrations.
The influence angle was picked up by Professor David Marshall, from Reading University, whose research shows that quantitative arguments rarely hold water under close examination. Marshall demonstrated that at the decision-making stage, business interests tend to have less influence than citizen groups – irrespective of available funds – when lobbying the European Parliament. This seemed to be an effect of relative EP gains in decision-making powers overall, and of the fact that citizen groups tend to welcome new legislation, whereas the business sector would be more likely to oppose greater regulation. All interest groups tend to lobby either MEPs with perceived ideological similarities with their cause, or MEPs in a relative position of power as a decision-maker, he argued.
The final discussion with the audience revolved around the principle of fairness. Academia clearly could not answer whether lobbying regulation should seek to address real or perceived unfair advantages in accessing or influencing decision-makers. The participants agreed however that the EU Transparency Register seemed to respect the principle of openness in the EU institutions, the principle of non-discrimination and the independence of MEPs.
In her closing remarks, Vice President Sylvie Guillaume said the three panel discussions had shown how sensitive and sometimes divisive transparency discussions could be, even within the Parliament. Parliament’s priority was to take steps towards an ambitious result for the upcoming negotiations on a new interinstitutional agreement on a joint Transparency Register, seeking to strengthen the rules in place and to include the Council.
The EU Transparency Register, run by the Parliament and the Commission, is a voluntary system of registration for entities seeking to influence the EU decision-making process directly or indirectly. It covers all organisations and self-employed individuals from trade and professional associations to NGOs and think tanks, irrespective of their legal status. Although the system is voluntary, over 11 200 representative groups have signed up since its inception in 2011, revealing their particular interests, whom they represent, and with what means, while also abiding by a Code of Conduct for registrants. In turn, Parliament grants registered interest representatives facilitated access to its premises and requires speakers at its public hearings to be registered. In 2014, the Commission decided to keep a public record of all meetings between Commissioners, their Cabinets and Directors-General and registered interest representatives. The Joint Transparency Register Secretariat (JTRS) consists of officials from both the Parliament and the Commission, who monitor the quality of the public database, assist registrants, handle alerts and complaints and raise awareness regarding the Transparency Register.
Parliament called on the Commission to review the current Interinstitutional Agreement (IIA) before 2017, and the Commission proposed a new agreement on 28 September 2016, this time also covering the Council. Parliament’s lead negotiators are Sylvie Guillaume, Vice-President responsible for the Transparency Register, and Danuta Hübner, Chair of the Constitutional Affairs Committee.