House of Commons - Lobbying: Access and influence in Whitehall

New regulations, under the Lobbying Act,[170] came into force on 2^nd July 2008 following the Federal Accountability Act 2006. The principal changes are:

The creation of a new Commissioner of Lobbying,[171] who is an independent Agent of Parliament with authority to enforce the Lobbying Act and the Lobbyists' Code of Conduct.[172] The Commissioner may prohibit lobbyists found guilty of infractions of either the Lobbying Act or the Lobbying Code of Conduct from communicating with federal government as a paid lobbyist for up to two years.
The introduction of the concept of designated public office holder (DPOH). This group includes Ministers and certain senior officials. Lobbyists must file a monthly return if they carry out oral or arranged communications with a DPOH.
A five-year post-employment prohibition for DPOHs and designated members of Prime Minister's transition teams, on lobbying the Government of Canada
A ban on any payment and receipt of any benefit that is contingent on the outcome of a consultant lobbyist's activity. This does not apply to in-house lobbyists
Extension from two to ten years of the period during which potential summary conviction infractions under the Lobbying Act may be investigated and prosecution may be initiated
Doubling of the monetary penalties for lobbyists who are found guilty of breaching the requirements of the Lobbying Act.

Australia

Australia has recently re-introduced regulation of lobbying via the Lobbying Code of Conduct.[173]
The Lobbyists Registration Scheme was originally introduced in 1983, following a scandal (the 'Combe Affair'). The Scheme was, however, widely acknowledged to be ineffective in respect of adherence to its provisions and the lack of effective enforcement. It was abolished in 1996.
A number of recent incidents prompted a review of lobbying regulations in Australia—these included the lobbying activities of a former Premier of Western Australia (Brian Burke), and the subsequent sacking of four ministers for their inappropriate contacts having breached Cabinet confidentiality. In general, there have been concerns in respect of former high level politicians becoming involved in lobbying in areas directly relevant to their past responsibilities.[174]
The new Lobbying Code of Conduct came into force on 1^st July 2008. This followed the establishment of a similar code in Western Australia in 2006. Any lobbyist who wishes to contact a Government representative for the purpose of lobbying activities must be registered and must agree to comply with the requirements of the Lobbying Code of Conduct. As of September 5^th 2008, there were 192 lobbying concerns listed.[175]
The Lobbying Code of Conduct provides the following information: business registration details, including trading names of the lobbyist; the names and positions of persons employed, contracted or otherwise engaged by the lobbyist to carry out lobbyist to carry out the lobbying activities; the names of clients on whose behalf the lobbyist conducts lobbying activities.[176] Where market sensitivity exists, the client's name may be kept from the register until market sensitivity has passed.[177] Details are updated quarterly. The Lobbying Code of Conduct is published on the Prime Minister and Cabinet's website.
Importantly, adherence to the code only applies to lobbyists who are lobbying on behalf of third parties (i.e. professional lobbyists). It does not apply to 'in house' or 'organisational' lobbyists.
The terms apply principally to communications with government ministers (as opposed to other parliamentarians), Parliamentary Secretaries, persons employed or engaged by ministers of Parliamentary Secretaries, Agency Heads or persons employed under the Public Service Act.[178]
Whilst there is no independent statutory oversight body, the register is policed by the Cabinet Secretary, who has the power to refuse registration or remove lobbying organisations or individuals from the register should they contravene the terms of the code or fail to provide accurate details in a timely manner. Government representatives are obliged to report breaches of the code to the Secretary. Importantly, enforcement is at the discretion of the Cabinet Secretary—there is no regime of offences.
Government representatives are forbidden from knowingly be part of lobbying activities by lobbyists who are not on the register
The Lobbying Code of Conduct also features provisions in respect of the 'revolving door' which are relevant to the PASC enquiry, but not this paper.[179]

COMMENTARY

In some ways, there are significant parallels with the PASC enquiry. Griffith notes 'While lobbying is undoubtedly a 'legitimate activity', there is a perception that lobbyists can sometimes wield undue influence and that, without appropriate regulation, their activities may skew the political decision-making process'.[180]
The route that Australia has taken, however, is one of statutory regulation. The first point to make is that this route has generally been welcomed by lobbyists (or at least those who submitted evidence).[181] The majority of submissions indicated support for the statutory regulations in the interests of increasing transparency. Indeed, in a number of cases, there were calls to strengthen the regulations.[182]
However, a number of lobbyists and commentators have highlighted perceived shortcomings. First, and most obvious, is the restriction of the register to professional lobbyists and the exclusion of 'in-house' and 'organisational' lobbyists.[183] Thus, in house lobbyists, lobbyists from peak associations, trade unions and not-for-profit organisations are not covered by the regulation. In sum, the regulation does not cover a significant level of lobbying activity, though the Standing Committee on Finance and Public Administration is committed to re-examining the code towards the end on 2009.[184]
The second concern surrounds procedural fairness. In sum, the view has been expressed that too much power is vested in the Cabinet Secretary and that there was a lack of transparency in respect of how decisions in respect of the register would be taken.
Thirdly, whilst many lobbying firms welcomed the code, there were some concerns expressed by smaller lobbying organisations, who felt that the register would place an unfair regulatory and administrative burden on small businesses.[185]
Fourthly, some lobbyists feel that the Code should cover all Parliamentarians, not just Ministers—again reflecting the general call for the regulation to be tougher rather than weaker.[186]
It is also worth noting, though outside the realms of this paper, that trade unions were concerned that their members would be unreasonably restricted in respect of future employment by tighter regulations in respect of 'revolving doors'.

European Union

1992-2008

Attempts at regulation were notable for the fact that they concentrated on only one institution—the Parliament.

The first attempt to create a Parliamentary register and code of conduct for lobbyists in 1992 failed principally due to a failure to define the term 'lobbyist'.

A solution was introduced in 1996. The solution involved removing definitional problems and instead moved towards an incentives-based approach. Lobbyists were only to be permitted a Parliamentary pass if they registered as such and signed a code of conduct. This did not make lobbying of MEPs impossible for those who did not sign, but a parliamentary pass made the task much easier.

By way of contrast, the European Commission had not sought to develop a formal regulatory framework, relying of self-regulation of lobbyists. The irony, here, is that the Commission has generally been regarded as a more fruitful institution for lobbying

The European Council similarly had no formal regulations.

2008

In 2007, the European Commission reviewed lobbying under the European Transparency Initiative. In a draft report,[187] the Commission proposed a voluntary register and code of conduct for lobbyists. This was in addition to the existing framework in the European Parliament. The proposal included a proposed definition of lobbying—consistent with Article 4 of the Rules of Procedure of the European Parliament. Critically, it was also argued that where law firms were engaged in influencing future law and not representing court cases, they should be regarded as being lobbyists.
In May 2008, the Commission issued guidelines on the register and code of conduct.[188] It indicated that any entity, regardless of legal status,[189] would be expected to register if it was engaged in activities defined as 'activities carried out with the objective of influencing the policy formation and decision-making processes of European institutions.'
The Register includes the following information: the turnover of professional consultancies and law firms attributable to lobbying the EU institutions, as well as the relative weight of their major clients; an estimate of the costs associated with direct lobbying of the EU institutions incurred by in-house lobbyists and trade associations; the overall budget and breakdown of the main sources of funding of NGOs and think-tanks
Where there are breaches of the code highlighted via complaints, the Commission will investigate and may suspend or even exclude lobbyists from the Register.
The Register is published on the European Commission website.[190] As of 8^th September 2008, there were 315 interest representatives registered.
Initially, this Register and Code of Conduct applies only to the European Commission. However, the European Parliament has proposed that by the end of 2008, a working group of Council representatives, Commissioners and MEPs will consider the implications of a common register for all lobbyists—something that had been called for jointly by the ECPA, EPAC and SEAP.[191] The European Parliament also proposes the establishment of a monitoring body.[192]

Germany

The German Bundestag is currently the only house of parliament in the EU with specific regulation of lobbying.[193]

Regulatory systems for relations between private actors and political institutions have been in place since the early days of the German Federal Republic
All groups wishing to defend their interests before the Bundestag or Federal Government must be entered on a register, which is updated annually and published in the federal gazette
In theory, lobbyists may not address parliamentary committees or be issued with a pass for parliamentary buildings unless they appear on the register. However, the register lacks any legal force. Moreover, no special privileges in respect of automatic consultation arise from registration. Equally, if invited by members of the Bundestag, non-registered groups may still appear at committees.
In addition, lobbyists often seek to influence either ministers or the civil servants at the pre-parliamentary stage. This aspect of lobbying is largely unregulated.[194]
However, Article 23 of the Federal Rules of Procedure emphasises that ministers should only cooperate with national federations. As a consequence, this affords some privilege to peak associations and arguably hinders professional lobbyists.[195]
No rules on lobbyists apply in respect of the Bundesrat.

USA

Regulation of lobbying goes back at least as far as the 1930s. However, the first comprehensive legislation was the Lobbying Act 1946. This act sought to make the legislative process transparent, by registering the identity and methods of lobbyists. It also required the submission of financial reports of lobbying. The act was largely regarded as being inadequate, having many loopholes that resulted in non-registration. In addition, investigation and enforcement was almost non-existent.

The Lobbying Act was replaced by the Lobbying Disclosures Act 1995, in the wake of various lobbying scandals

The act is directed at 'professional lobbyists'—this covers both lobbyists working for third parties and 'in-house' lobbyists working for corporations and organisations. Thresholds are set before there is a requirement to register, thereby excluding 'grass-roots' lobbying from the provisions of the Act.

Registration is quarterly and requires third party lobbyists to reveal the total income from a client, and organisations estimating their total lobbying expenses.

There is no definition of lobbying per se. Rather the provisions of the act refer to any communication made on such matters as the making or amending of Federal legislation, or the administration or execution of Federal policy. Such communications are deemed to be 'lobbying contact' for the purposes of the Act.

Two categories of government officials are covered by this Act: 'covered executive branch officials' (President downwards) and 'covered legislative branch officials' (Members of Congress downwards). Officials are defined as 'any officer or employee serving in a position of a confidential, policy-determining, policy-making, or policy-advocating character'.

Registration is required within 45 days of making contact, with the Clerk of the House and the Secretary of the Senate.