The Programme for government promised to introduce a statutory register of lobbyists and rules concerning the practice of lobbying. That commitment is now a work in progress. The Department of Public Expenditure and Reform has published the submissions made on its proposals for a register. Consultations between officials and interested groups are ongoing. It is intended that a seminar will be held to discuss Minister Howlin’s proposals and that he will then bring the matter to government for discussion and decision.
The Public Relations Consultants Association (Ireland), a professional body representing public relations and public affairs consultancy firms, strongly advocates a system that delivers accountability and ensures a level playing pitch for all. Key to this is defining clearly what is meant by ‘lobbying’ and ‘lobbyist’. As government engages in a process of consultation, a wide range of groups are, yes, lobbying to influence the outcome. From individual citizens and interest groups in industry to trade unions and the voluntary sector, there is surely a common public interest in ensuring an open system of government where all can make their case freely and none can do so inappropriately.
The challenge is how to do that effectively in an easy-to-understand, easy-to-use system. As a small open democracy, Ireland prides itself on the ability of all its citizens to have access to their elected representatives. Care should be taken that, in ensuring transparency on who is making the case for what, this open access is maintained.
The Mahon Tribunal, which rightly recommended regulation, also recognised the need “to avoid placing excessive demands on lobbyists, to the possible detriment of comprehensive disclosure and effective enforcement”. The Tribunal quoted the OECD as stating:
“meaningful disclosure should provide pertinent but parsimonious information on key aspects of lobbying activities in order to shed light on how public decisions were influenced by stakeholders or vested interests.”
Regulating those who lobby
To be credible a robust, easy to use regulatory framework is required. It must ensure that all those who lobby are registered, including in-house practitioners, advocates in the voluntary sector, academics and professionals such as lawyers and accountants. This should be regardless of the remuneration or the time spent lobbying or advocating on behalf of their employer or client.
Claims of client privilege must not be allowed as a reason to exclude some professionals from the register. There are ways to overcome client confidentiality. Legal privilege should only extend to the issues discussed between professional and client and not to information about the activity on which the professional is lobbying on behalf of the client.
Lobbying should incorporate:
- engagement by any individual or organisation in any aspect of the legislative process;
- representations on behalf of individuals or organisations relating to any potential benefit accruing from the State;
- engagement with State bodies, Government departments, State and semi-State companies, public officials, local authority officials and councillors should be classified as requiring disclosure.
A system that focuses on ‘lobbyists’ is doomed to fail to deal with ‘lobbying’. There are relatively few professional lobbyists and, for most, their engagement with politicians, officials and public bodies is only part of what they do. There is a far wider swathe of professional, industry, academic and voluntary sector interaction with the State that seeks to influence public policy and political decisions.
Regulating the lobbied
There is a strong argument for regulating the ‘lobbied’ rather than the ‘lobbyist’. The responsibility is on government to demonstrate that it is acting in an ethical, open and transparent manner, and that responsibility should not be shifted to other sectors of society. The British model of government departments publishing details of all external meetings greatly enhances transparency and should be considered in the Irish context. The Mahon Tribunal said in regard to the regulation of lobbying, “such measures cannot focus exclusively on lobbyists to the exclusion of those who are the subject of lobbying activities’. The Tribunal also recommended “that information regarding ministerial and other high level official meetings with outside interest groups should be routinely recorded and published”.
To ensure transparency and promote better decision-making, all who influence the policy process should be required to leave a verifiable footprint. Mahon noted that: “Lobbyists serve an invaluable function in democratic governance. They provide useful information and expertise to government officials on any given matter. They represent interests that may be adversely and unintentionally impacted by a poorly deliberated public policy”. The policy challenge in implementing the Government’s commitment is to avoid regulation so narrowly based that it would be entirely ineffective. That is precisely what concentrating solely on professional lobbyists would succeed in doing.
The planned legislation must be rooted in the principle that yes, it is desirable and necessary to regulate lobbying in a way that fully includes professional lobbyists. But to focus exclusively on this group would be in fact to exclude most lobbying and be effectively worthless.
Decisions made by local government and the hugely consequential lobbying by professional firms of accountants and solicitors on financial and other legislation are just two examples of what has to be included. Health, education and social welfare combined account for the greater part of public expenditure. Yet an exclusive focus on professional lobbyists would ensure that the public would neither have the right to know nor the assurance of being informed of the many interest groups who properly lobby for the interests they represent in these areas. Certainly professional lobbyists may be involved. But for the most part most lobbying is in fact done by people who describe themselves differently.
Putting a control system at the front gate of the policy making process where only ‘lobbyists’ would be asked to sign-in, would leave the back gate swinging wide open. Ministers and civil servants know from experience how wide the range of lobbying activity actually is. Legislation to address the issue must have a similarly wide reach. By ensuring ‘lobbying’ is registered, all who engage as ‘lobbyists’ will be regulated and the Government’s commitment will be fully met. Most importantly however, the public interest will be properly served.
Laurie Mannix is the managing director of MKC Communications and Chairman of the Public Relations Consultants Association
This article appeared in the May issue of the Public Affairs Ireland monthly Journal: the essential guide to monthly guide to legislative, regulatory and public affairs in Ireland. For more information on how to subscribe to the Journal, please click here.