What lessons can be learnt from Ireland’s lobbying regulation?

Megan Roe who is currently taking the Masters in Corruption & Governance at the Centre for the Study of Corruption, looks at what lessons the UK might learn from Ireland about the regulation of lobbying – an issue with particular relevance during the Covid-19 pandemic when government contracts and funds are awarded without the usual scrutiny and behind the scenes lobbying can produce an immediate financial reward.

When conducted in an appropriate way, lobbying plays an important role in the democratic process. But its often secretive nature, in combination with numerous political scandals across Europe, fuels perceptions of a shady world of influence peddling, where special interests are placed above the public good. Behind the scenes lobbying contains elements that Klitgaard’s ‘corruption formula’ (Corruption = Monopoly + Discretion – Accountability) suggests makes a favourable environment for corruption – in this case discretionary power without accountability. So in this regard, why is lobbying regulation so weak in so many countries?

Transparency, through a statutory lobbying register, is a way of improving perceptions of and limiting influence peddling. It puts back the accountability. The UK and Ireland both have registers of lobbyists, designed to increase the transparency. But even though the UK’s register was introduced a year before Ireland’s, the latter has received ten times more returns than the UK’s, and the UK’s register is strongly criticised by transparency campaigners. What does that tell us about good regulation in this area?

Ireland’s Regulation of Lobbying Act (2015) meant that from September 2015, those who lobby designated public officials (DPOs) are required to register and report their lobbying behaviour on a quarterly basis. The enforcement and investigative provisions of the Act came into force in January 2017, which helped fortify the 2015 law as one of the strictest lobbying regulations in the world. After a public consultation process, the Standards in Public Office Commissions introduced a Code of Conduct for lobbyists last year.

The essence of Ireland’s register is “to provide information to the public about who is lobbying whom about what.” The date and nature of all communications between lobbyists and DPOs are recorded – from meetings to tweets. The act itself employs one of the widest definitions of a lobbyist by international standards, and is easy to discern through the ‘Am I Lobbying?’ feature on the register’s website. Those within scope of the act include:

· Anyone who employs over 10 individuals

· A representative or advocacy body with one or more employees

· Professional lobbyists who are paid to communicate on behalf of a client

· Anyone communicating in regards to land development/zoning.

By comparison, the Association of Professional Political Consultants estimated that the UK register covers about one per cent of lobbying activity, contradicting the government’s statement that those unregulated under The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act (2014) were already covered under existing transparency measures.

Back in Ireland, failure to register leads to an automatic fixed penalty notice of €200, and more serious violations of the act may be punishable by a fine of up to €2,500 or a two-year prison sentence. Greater compliance with the Act enables the public and press to know who is lobbying, who is being lobbied, and to what end.

Another function of Ireland’s regulation is to impose a one-year ‘cooling off’ period for former DPOs who wish to engage in lobbying. The flow of powerful figures between government and industry is not limited to lobbying alone, but is a major part of the problem when we consider the access, influence, and sensitive information former public servants and politicians can offer those seeking to lobby the state. Conflict of interest risks are particularly high, and in some circumstances, industry leaders trade promises of future employment for regulatory allowances, making revolving doors criminally corrupt.

These post-employment restrictions are not perfect, as the Labour party and Transparency International Ireland initially sought to impose a two-year ‘ethical firewall’. Canada, which was very much the model for Ireland’s reforms, has a five-year cooling off period. In the UK, former ministers and senior crown servants are prohibited from lobbying government for two years, and are required to contact the Advisory Committee on Business Appointments (ACOBA) for advice on any appointments within this period. In practice, ACOBA has been described as ‘toothless’ in its regulation of revolving-door employment.

Ireland’s Head of Ethics and Lobbying Regulation stated in the Standards in Public Office Commission’s 2018 report that lobbying is still thriving in Ireland – rebutting ideas that stricter laws would have a damaging impact on lobbying. This is not just the view of politicians and campaigners, as the CEO of one of Ireland’s largest lobbying firms agrees that the act has not tied the hands of lobbyists, arguing “it’s always better in our industry to have transparency, we’re all stronger for it.” Opening the books on lobbying can limit the likelihood of inappropriate influence and corrupt exchanges, as the public are afforded greater scrutiny into the decision-making process.

In the UK, only consultant lobbying firms are required to register – not campaigning organisations or in-house lobbyists. Prior to the Lobbying Act, self-regulation was promoted through three British associations, and operated under a shared code of conduct. The government did not include this code or any other ethical framework in the statute, and there are no post-employment restrictions on former public office holders becoming lobbyists. According to Transparency International, it is important to address issues surrounding lobbying, the revolving door, and also party funding in the same breath as greater regulation in one area can easily lead corruption to flow into another.

The effectiveness of Ireland’s regulation lies in its five-point approach. It is one of the only EU members with a lobbying law, register, a cooling-off period for public servants, an ethical code of conduct, and sanctions in the form of monetary penalties and imprisonment. A comprehensive approach built upon these five key elements promotes transparency and accountability within lobbying processes. France and Slovenia also include many of these provisions under their lobbying legislation, while much of Europe lags in implementing a rigorous lobbying framework, if any regulation at all. The UK has fallen short on regulating a clandestine lobbying industry, but Ireland demonstrates that reform is possible.

The governance of the UK’s response to corruption: who is in charge?

Robert Barrington, Professor of Anti-Corruption Practice at the Centre for the Study of Corruption, summarises two new papers in the CSC Discussion Paper series that address the question of how, and how well, the UK approaches the governance of its anti-corruption response.

When studying corruption, there is a lot of talk about governance.  Sometimes, it seems like a politer and more positive term to use than corruption, and sometimes it’s because good governance is seen as an effective defence against corruption.

To date, there has been little analysis of the governance of corruption: in other words, how a country provides oversight and accountability for its response to corruption.  This is fundamental, because as anti-corruption responses increase in number and complexity, there is a basic question about who is conducting the orchestra – and whether they have the powers, remit, resources, support and status necessary to do the job properly.

Two new papers in the CSC Discussion Paper series address this question in the context of the UK.

The Role of the UK Anti-Corruption Champion looks at a post, appointed by the Prime Minister, that is both important and frustrating.  The role, which has existed since 2006, is important because the Champion is responsible for overseeing delivery of the UK’s national Anti-Corruption Strategy, and in the absence of anyone else in charge, this is what we have.  But it is frustrating because ‘there are some structural flaws which date from the way in which the role was originally created…too many areas around a role of this importance have been, and remain, vague and ad-hoc.’

Of the seven Champions to date, some have been very poor, and some have been much better.  The paper looks at each Champion individually, and assesses their personal achievements in the role, as well as the strengths and weaknesses of the position as a whole.  Although the post has matured over the years, it is still not fit for purpose considering this person is at the centre of the UK’s anti-corruption response.   The paper concludes with five recommendations to make the role more coherent and effective:

1. Terms of Reference: create and publish adequate Terms of Reference;
2. Status: respond to the House of Lords Bribery Act Committee recommendations that the role should be at Cabinet or Ministerial level; and related to this, consideration should be given to re-locating the civil service support unit, JACU, back to the Cabinet Office;
3. Accountability: formalise the accountability mechanism for the role and the discharge of its duties, and allow proper parliamentary scrutiny of this;
4. Institutionalising the role: remove the highly inappropriate element of Prime Ministerial patronage by institutionalising it, and ensuring there is a swift re-appointment when the role is vacant;
5. Transparency: remove unnecessary secrecy – for example, over the name and date of appointment of the Champion and the membership of the Inter-Ministerial Group on Anti-Corruption that the Champion co-chairs.

But The Governance of Corruption in the UK argues that since the post of Champion was created as a knee-jerk reaction to the BAE Systems scandal of 2006, the UK has missed out on a  proper review of how it should govern its approach to corruption; having an Anti-Corruption Champion may not be the right answer to the question of how the UK should plan, coordinate and implement its response to corruption.  Many countries have tried to fill this gap by creating an Anti-Corruption Agency; the UK has addressed other issues like Modern Slavery by creating an Independent Commissioner.  Would either of these be suitable for the UK?  We don’t know, beause they have never been properly looked at.  What we do know is that the UK’s response to corruption is split between dozens of agencies and departments, with at least two ministerial committees giving some form of oversight, little transparency and rare attempts at public accountability.

A reasonable counter-argument is that although the system looks to be messy from the outside, the UK has made considerable progress over the years.  The issue is therefore not whether the UK can continue to get by with its current approach; but how an improved approach might better help the UK achieve its stated objectives.

Ultimately, having reviewed numerous documents, and drawing on more than a decade of practical interactions with the UK government, the conclusion is that ‘above all it is simply not possible to answer one key question: who is in charge of overseeing the UK’s national well-being with regard to corruption?’  Regarding the role of Anti-Corruption Champion, particularly the important place it currently holds in the UK’s anti-corruption governance, the paper recommends that ‘after nearly fifteen years and creating a new Strategy, the Government should be reviewing the alternatives that exist – and if it concludes that the UK is best served by having the Champion at the core of its governance, re-design the role accordingly.’