For an obligatory regulation of lobbying – By guest writer Daniel Guéguen
For an obligatory regulation of lobbying
There is hardly a day when lobbying is not on the front page, and always with a negative connotation. Lobbyists can only be ‘bad’ because they express the voice of industry. The “good lobbyists”, on the other hand, are not really lobbyists since they represent civil society, an emanation of the “public interest.” None of this makes any sense.
In 1992 (28 years ago!) the European Parliament held its first hearing on the “representation of interests.” A great popular success and a room over-flowing with people. Which “interest representatives” were heard? A mixture of industries (myself for sugar) and NGOs (in particular the Eurogroup for Animal Welfare and the Euro Citizen Action Service).
Out of this public hearing came three conclusions: first, an affirmation of the “broadly positive role of lobbies”, then a statement that “industry, NGOs and local authorities are lobbies”, and finally that there is a need for regulation to “remedy corruption and theft of documents.” This allowed Mrs Dagmar Roth-Behrendt, one of the most experienced MEPs, to declare: “Distinguishing between good and bad lobbyists is irrelevant. The correct standard is professionalism.”
In 2015, during a second public hearing at the European Parliament on “Ethical questions regarding lobbying practices and transparency register”, the speakers did not call into question the three conclusions of the 1992 hearing. However, they added three extra recommendations: first, the need to create an independent supervisory authority; second, a systematic improvement of transparency throughout the institutional triangle; and third, a boosting of resources for OLAF and the Ombudsman.
Lobbying and governance are intimately linked
A comparison of the conclusions of the two public hearings clearly underscores the INSTITUTIONAL link between lobbying and EU governance. There is hardly a legislative or regulatory proposal that is not submitted to “interest representatives” via consultative groups or civil dialogue groups, or to the public via consultations. But more interesting is that the European Parliament, in its wisdom, believes that only enhanced transparency within the Institutions will limit the risk of abuse (corruption, document theft, etc.) and that bad practices will be better monitored and better sanctioned by strengthened action from OLAF and the Ombudsman.
Regulating European lobbying requires combining two pillars: a precise definition of what a lobbyist is and what his or her rights and obligations are; and the introduction of a high degree of accountability, transparency and integrity in the EU institutions. On this second point, the 2015 Parliament hearing indicated the way forward: “Oblige MEPs to disclose third party involvements in legislative activities; increase transparency during trilogues and conciliation procedures; and clarify rules regarding the use of external expertise and relations with third parties.” Personally, I would add a strong limitation on revolving doors. The problem is that there is no movement on any of these points.
Regarding the first pillar “What is a lobbyist?”, everything should be clear from the public hearings in 1992 and 2015: a lobbyist is an interest representative acting on behalf of an industry, NGO or local authority. But the recent trend in social networks that says “good lobbyists = NGOs” and “bad lobbyists = industry” requires a strengthening of the Transparency Register in order to avoid a situation where perfectly legitimate businesses or sectors are vilified, denounced, even prohibited from any contact with the Institutions, as we have seen repeatedly in recent months.
The Transparency Register: only a starting point
How many years did it take to make our poor Transparency Register obligatory? Obligatory it may be, but with exceptions, notably for lawyers – of which many have become lobbyists, due to the complexity of comitology and delegated acts. Once its scope has been finalised, we can say “A lobbyist is a person who has their name in the Transparency Register.” But this will not be enough because the Register is so imprecise: the definition of what has to be declared as “lobbying activity” is pure fantasy and often does not correspond to reality at all; no prior control is conducted; no sanction is applied, etc.
We can measure the importance of the issues. More transparency from the Institutions, more discipline from lobbyists: a kind of trade-off. But in reality, even more is needed. For the Institutions, they must re-think their relations with public opinion, ensuring more transparency, less interpretation of procedures and less “silo” management. For lobbyists, I would say: “take back control.” Let’s put our own house in order, let’s set rules and disciplines, taking lawyers as inspiration. If we wish to be respected, it is up to us to put forward at least a strict Code of Conduct, at best a kind of Professional Order of lobbyists and interest representatives. Part 2 of my article will be devoted to this idea.
Part 2
Lobbying and governance, having a direct institutional link, are permanently interacting. There is no point in regulating lobbying without achieving a high degree of “responsibility, transparency and integrity” at the level of the EU Institutions. Having said that, the regulation of lobbying needs courage and persistence, as it requires a reshaping of outdated practices.
In 2015, the Czech Parliament commissioned me to do a study on lobbying regulation in the main industrialised countries. The results were illuminating. Alone the United States adopted a Disclosure Act in 1995, broadly strengthened in 2007 following the Abramoff scandal. This Disclosure Act introduced the most extreme transparency into the sphere of lobbying. Everything was made public: budgets, contacts, spending etc. The profession of “lobbyist” was defined according to strict criteria involving regular training, continuous controls (in particular from the public, with the entire daily life of lobbyists put online) and severe sanctions. This dimension of the American model, softened and more flexible, would be a useful reference point for the European Union. The private funding of political parties on the contrary would have to remain excluded.
The other “star pupils” were Canada and, to a lesser degree, the Netherlands and Germany. With France and the United Kingdom, the European Union found itself among the “bad pupils.” The Transparency Register does not clearly define what a lobbyist is, does not set down any competence criteria, and requires no training or even a clean criminal record. Very vague, it is neither credible nor reliable, and has proven very lenient with regard to revolving doors. Worse, it maintains a kind of “grey zone” between what is authorised and what is forbidden. The less public EU documents are, the greater this “grey zone” is. The need for transparency in all acts of the three Institutions and equal access to documents is arguably priority number one.
Quantitative or qualitative lobbying?
When the “good lobbyists” (NGOs) criticise the “bad lobbyists” (industry), they compare their respective number of contacts with the Institutions, especially the Commission. As NGOs regularly complain: “Industry has met the Commissioner 5 times, the Director General 10 times and the Head of Unit 25 times, this is not normal because we have only had one meeting with any of these.” In reality, industry lobbies are too numerous, too fragmented, too individualistwhile NGOs are strictly specialised, avoiding the excessive disparate contacts generated by the huge number of trade associations (e.g. there are more than 300 in the agri-food sector alone!). Leaving aside taboos, it must be said that NGOs are much better organised and more operational than the industry.
The same goes for communication. NGOs simplify to the extreme and are the masters of the punchline on social media. They are on the offensive, and industry is not equipped to respond. The stronger the attack, the less industry reacts. When it does react, it uses – on the defensive – the tools of yesteryear (position papers, letters, press releases).
Thus, two opposing worlds have been created, and the dialogue between them totally severed. This is a very bad thing. The first goal of a mandatory lobbying system should be first to bring everyone back around the same table.
For a future Professional Order of lobbyists, how do we choose the architect?
Three organisations can claim to take up the role of leader. First, there is SEAP (Society of European Affairs Professionals), composed of professional lobbyists, individually registered. Advantage: created over 20 years ago, SEAP is considered by the Commission to be representative. Disadvantage: a limited number of members, not very visible (who has heard of them?), but growing sharply in terms of activity and proposals. Second, there is CEO, (Corporate Europe Observatory) a member of the Alter-EU platform. They are the opposite of SEAP: very visible, very vocal, very hostile to corporate lobbying, but strongly representative in the eyes of “civil society.” Third, EPACA (European Public Affairs Consultancies Association) fulfils a utilitarian, even “trade union”-type function for the benefit of European affairs consultants, but they are the practitioners of the European scene.
Operating in parallel, these three associations have to listen to each other, get to know each other and work together. It will be difficult, but in my view the contentious topics are outnumbered by the issues of common interest. Concerning methodology, perhaps it would be most suitable to use the conclusions of the various European Parliament hearings as a starting point. The first job should be to agree on the definition of the word “lobbyist” and on its positive place in EU governance. Then they can move on to setting out the obligations for lobbyists as well as the Institutions, which should not pose insurmountable problems.
The time is particularly ripe to embark upon this project, in the context of a positive institutional environment where the new Commission has recognised the need to improve day-to-day decision-making. In addition, the Conference on the Future of Europe, chaired by Guy Verhofstadt, will soon be launched. Both will obviously include a lobbying dimension, including the creation of an independent supervisory authority. This convergence of initiatives at the highest level is an opportunity for us and a means to move the noble profession of lobbying and interest representation from the “problem” category to the “solution” category.
The article is written by Guest Writer – Daniel Guéguen. All views expressed are those of the authors and do not necessarily reflect the official policy or position of any other agency, organisation, employer or company.
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