Political and Constitutional Reform CommitteeWritten evidence submitted by Dr John Hogan , College of Business, Dublin Institute of Technology, Professor Gary Murphy, School of Law and Government, Dublin City University and Dr Raj Chari, Department of Political Science, Trinity College Dublin
1. My colleagues Dr. Raj Chari, Professor Gary Murphy and I have gone over the Political and Constitutional Reform Committee’s questions in relation to the introduction of a statutory register of lobbyists in the UK and we have developed responses to each. Hopefully, you might find these responses to be helpful as you examine this issue.
Does the Government’s consultation paper represent a balanced approach to the idea of a statutory register?
2. A problem with the paper is that examples provided in Annex A concern lobbying regulations at the federal levels in the US, Canada and Australia. But, there is a lot of innovation going on in terms of lobbying regulations at the state and provincial levels in each of these countries as well. In our own research we found that states like Washington State in the US and Queensland in Australia were some ways ahead of their federal governments in terms of the rigour of the lobbying regulations they introduced. Given the size of the UK, it is probable that more will be learned from examining the type of lobbying regulations in place in a jurisdiction of similar economic size and population, such as the state of California, as opposed to Washington DC, which is capital to a vastly bigger country with a completely different structure—it being a federal republic. It may also be noted that several other regulatory regimes have recently been set up throughout the world, including Lithuania, Poland, Taiwan, Israel, France, and Slovenia. Please see www.regulatelobbying.com for the interactive map which will also allow one examine text of these and other country’s legislation.
Does the paper present the evidence in a balanced way?
3. We think that the evidence could be presented in a more nuanced fashion. By this we mean that there are various types/categories of regulations in existence—low, medium and high (see Chari et al., 2010). Each of these categories of regulations contain certain pros and cons. Also, the reader should be made aware that the US and Canadian federal regulations, when initially introduced, were much weaker than they currently are. At the US federal level, the introduction of lobbying regulations has been a gradual iterative process from 1946, to 1995 and through to 2007. Each new law has been stronger than the past, as there is an institutional learning process in operation. As such, it is necessary to present to the reader the fact that there is no silver bullet in relation to lobbying transparency and that the legislation, once introduced, will by its very nature be subject to revisions as time passes. There is also the fact that other EU countries now have lobbying regulations—Germany, France, Poland, Lithuania. These examples could also be presented, as in the case of Poland and Lithuania, they like the UK, looked to the US and Canada when considering the introduction of lobbying regulations. So, there are probably experiential lessons to be learned from how these eastern EU states have found the process.
Are you confident that the issues covered are ones on which the Government has an open mind?
4. Yes we are confident that the present British Government has an open mind on the issues covered.
Is the Government clear wherever it has a preference for a particular option, and is this preference in each case a reasonable one?
5. In terms of defining what lobbying and what a lobbyists is, we think that the UK Government would do well to look to outside examples. As this is something which the UK has no experience of, but countries such as the US, Canada, Australia, Poland all do, then examining the various ways that they define lobbying and lobbyists will be of great assistance. In the case of the US, state governments have been regulating lobbying since the mid nineteenth century. Their approach has tended to be much more robust than that of the Federal Government. As such, the UK should be looking towards the regulations in place, as well as how they are implemented, in states like Washington State, Kentucky, Connecticut and New York as opposed to simply looking to Washington DC.
6. Please also remember that in Australia, the lobbying regulations are based on codes of conduct not legislation, and this is something that the UK Government’s discussion document omits. Further, in addition to excluding in-house lobbyists, Australian regulations also exclude accountants and lawyers. Many of the politicians we have spoken to in Australia, at both the federal and state levels, felt that this was an error that they were going to have to revisit and rectify as it has resulted in a large loophole in their regulations.
Does the consultation paper contain the right questions?
7. It generally seems to ask correct and relevant questions. But, considering that this is such a complex field, some more questions might be asked, such as those set out below.
Is each of the questions asked in a balanced way?
8. Most of the questions seem balanced and fair. We would just like to make the following observations:
9. In relation to the questions on sanctions: it seems obvious that non-compliance with the rules should warrant a penalty. In most jurisdictions there are clearly defined and proportionate penalties for lobbyists who engage in misconduct. The report highlights some of these penalties in Annex A. As such there are good examples to follow from both the US and Canada.
10. In relation to the questions on the Registrar’s Operation: it might be well to ask about the level of independence the office will have from government, as well as the level of funding the Government intends to provide it with. International experience suggests that those countries which have Registrars who are structurally housed within part of an existing ministry (such as the case of Poland), inevitably have more political interference and thus lose their independence. It seems imperative that if a Registrar is to function effectively it must have institutional independence.
Are there any important questions that are not asked?
11. We would suggest that there are a number of other questions that should be asked:
11.1
How many days can a person be active as a lobbyist before they are required to register?
Are lobbyists going to have to reveal on their registration from the subject matter or bill that their lobbying concerns?
Is a lobbyist required to submit a photograph with registration?
Is a lobbyist required to identify by name each of employer on the registration form?
11.2
Is a lobbyist required to file a spending report?
Is spending on household members of public officials by a lobbyist required to be reported?
Is a lobbyist required to disclose direct business associations with public officials, candidates or members of their households?
Will the responsible agency/body provide overall totals for activity and spending throughout the year?
11.3
Where will the register be located?
How often will the details contained on the register be updated by the responsible body?
Will the public have free electronic accesss to the register?
11.4
Will this responsible agency/body have statutory authority to audit the lobbyists’ returns?
Will the agency have the power to conduct mandatory audits?
11.5
Will there be a statutory penalty for late filing of a lobby registration form?
Will there be a statutory penalty for incomplete filing of a lobby registration form?
Will the responsible agency publish lists of delinquent filers on their website?
Will penalties follow the example set in the US by including fines as well as the possibility of imprisonment for very serious misconduct?
11.6
Will the responsible agency publish lists of lobbyists who have been struck off the register on their website?
11.7
Will there be a “cooling off” period required before former member of Parliament can register as lobbyists?
Which lobbying contacts are of greatest legitimate public interest?
12. Clients of lobbyists and the elected officials that are lobbied are the most important contacts. It is important to know who the lobbyists is acting as a conduit between.
Does the consultation paper envisage the capture of appropriate information about these contacts, as opposed to other kinds of contact?
13. Yes this does seem to be the case.
How should the Government deal in policy and practice with how it might be lobbied on the issue of a statutory register of lobbyists?
14. The real value of such lobbying regulations comes from their implementation. The law itself can be very detailed and on paper look very strong, ensuring much greater transparency than previously. However, implementation is crucial in this case. It is vital that the Government, despite the recession, is ready and willing to provide the registrar with the necessary resources to police the industry as well as insuring its independence.
How open should the Government be about such lobbying contacts?
15. In all regulatory systems where registration is mandatory, it is the lobbyist’s responsibility to register. This allows the public to see with whom lobbyists are making contact when attempting to influence policy. Our research has shown that in many cases where this registration exists, politicians themselves will make it a point to know that the lobbyist is registered. Lobbying legislation, however, places very little responsibility on the politicians themselves to declare with whom they talk. But our research has shown that with a register, politicians themselves are open with whom they have talked.
How should the Government analyse the consultation responses, and seek to balance the weight of opposing argument?
16. The ultimate objective of this kind of legislation is to shine a light into the black box of policymaking. Any arguments made that would impede the sought after transparency, or provide certain groups, like lawyers or accountant (as in Australia) with exemptions from lobbying regulation, will need to be carefully considered. In Australia, many of the legislators we spoke with said that exempting lawyers and accountants had been a major mistake that they would have to rectify. Such regulations serve to make lobbying a more trusted and respectable industry. Something we found in Eastern Europe was that the word lobbyists ceased to be a fully pejorative term once a register was up and running. In that context it is well to remember that the work carried out by interest or lobby groups is a central and legitimate part of the democratic process within all liberal democratic systems. Although the term has often been associated with negative connotations, throughout the democratic world the work of lobbyists is essential when policy is formulated. Lobbyists are an accepted element within society, providing the necessary input and feedback into the political system, thereby helping to develop policy outputs which drive political and economic aspects of our daily lives.
17. The Government should not take too long in seeking to introduce the “perfect” lobbyist register. It should, taking its lessons from other jurisdictions, as well as the consultation process responses, seek to introduce a “good” register for the UK sooner rather than later. By “good”, we mean one that is suited to the UK and its politics. Once the register is up and running there can be regular reviews as to how it is progressing, as well as comparative examinations as to how it measures up against similar registers in other countries. Further consultations can be held periodically in order to examine the function of the register and consider if additional amending legislations needs to be introduced, in order to tighten up any loopholes that might appear.
Do you have any comments on how any proposals emerging from the consultation should be implemented?
18. The implementation phase should, above all, be run by a Registrar that has complete independence and is free from partisan influence. The Registrar’s office should, of course, report to Parliament on an annual or bi-annual basis.
February 2012