Tuesday, 18 October 2016

Insider lobbying and transparency - the hidden influence of expert and advisory groups

Nuala Haughey: After a full year in operation, the legislation behind Ireland’s lobbying transparency regime is being reviewed by the Department of Public Expenditure and Reform.

This is an important troubleshooting opportunity, as glitches in the law or its implementation can undermine its contribution to increased transparency in public decision-making.

Put simply, the Regulation of Lobbying Act 2015 was introduced to shine a light on “who is lobbying whom about what”. If any of these three Ws are not captured accurately, we will have a distorted impression of how policy is actually influenced.

The core of the lobbying system is an online database – interest groups and others engaged in lobbying must file online returns of their activities to this searchable register three times a year. The database went live in September 2015, and as of October 2016, more than 1,400 people and organisations have registered, and more than 7,329 returns have been uploaded.

In its submission to the departmental review the Standards Commission makes 23 recommendations that would strengthen the operation of the Act by, among other things, closing off loopholes, creating new offences, and enhancing its own powers.

When it comes to the “who” of lobbying, SIPO has identified categories of organisations and individuals which currently fall outside its reporting obligations, but shouldn’t. These include informal coalitions of business interests which join forces on issues of mutual interest and unpaid office holders in organisations such as chairs and board members.
Insider lobbying through expert and advisory groups 

Another area of activity which merits attention as part of the current departmental review relates to what may be called “insider lobbying” – that is the influence of private interests on policy-making through membership of expert or advisory groups. Government departments and public bodies routinely establish expert groups, taskforces, advisory committees etc. made up of public officials and invited external experts or stakeholders.

These groups may be set up to offer policy advice because internal expertise is absent or a range of stakeholder views is sought. By their very nature, such groups provide a forum for interests, including private interests, to achieve privileged access to policy-makers – think of the well documented influence of the former Clearing House Group of the International Financial Services Centre.

Under the current lobbying regime, interactions within these groups are not captured on the lobbying register – but this exemption is provided on the basis that the groups behave in a transparent way. Formal recommendations from such groups can carry considerable weight, shaping government policy in areas of vital importance to citizens.

These bodies must adhere to a Transparency Code prepared under the Act, which means publishing details on their parent public body’s website about their activities, membership (including sub-groups), terms of reference, agendas, minutes etc.

Transparency blind spot for expert and advisory groups

So how is this working out? The answer is that this entire area is a blind spot. One year after the Transparency Code came into force, there is no official list of the expert or advisory groups to whom it applies.

According to the Standards Commission, it is not clear which groups have committed to adhering to the Transparency Code, and whether or not those groups that have done so are complying with it. So what can be done about this?

The Standards Commission recommends requiring public bodies to inform it before the end of each lobbying return period of the bodies that are meant to be adhering to the Transparency Code. But is this in itself enough?

The OECD recently stated that “an emerging risk to the integrity of policy-making is the capture of advisory groups by private interests to exert undue influence”. [1]  

The table below highlights OECD research findings that Ireland is among 79 % of OECD countries that allow lobbyists to be members of expert groups in a private capacity. The same percentage, including Ireland, do not require a balanced composition on such groups in terms of private sector and civil society representatives.

Source: OECD (2014), Lobbyists, Governments and Public Trust, Volume 3: Implementing the OECD Principles for Transparency and Integrity in Lobbying, OECD Publishing, Paris. http://dx.doi.org/10.1787/9789264214224-en

As the OECD points out, although private interests may influence the work of advisory groups, most OECD members require that membership, agendas, minutes, participants’ submissions and other information relating to advisory groups should be publicly available so that stakeholders can scrutinise their work.

The fact that interactions within such groups are explicitly carved out from Ireland’s lobbying law makes it crucial that we start to see the envisaged transparency around their work.

Yet, as the Standards Commission points out, there is no clear authority in the Regulation of Lobbying Act to verify that such groups are actually adhering to the obligations in the Transparency Code. In its submission to the review, it suggests that this obligation should rest with the head of the parent public body and should be included in a revision of the Code itself, rather than an amendment to the Act.

This is certainly an option, although anything other than a statutory duty may result in patchy adherence, with some public bodies publishing details of expert and advisory groups while others do not. If that were to be the case, it would undermine the integrity and accuracy of the lobbying register itself.

On a more practical note, to help with scrutiny of the work of expert groups etc., the lobbying website itself could usefully contain a register of them, with links to their terms of reference, membership, agendas, meeting minutes etc. The European Commission set up such an online register following concerns about the lack of transparency and corporate dominance of its expert groups.

Nuala Haughey works with TASC on democratic accountability and open government.

TASC’s Submission to the public consultation on the review of the Regulation of Lobbying Act 2015 is available here.

TASC's comments on the draft Transparency Code for expert groups and others is available here.

[1] OECD (2014), Lobbyists, Governments and Public Trust, Volume 3: Implementing the OECD Principles for Transparency and Integrity in Lobbying, OECD Publishing, Paris, p 76. http://www.oecd-ilibrary.org/governance/lobbyists-governments-and-public-trust-volume-3_9789264214224-en;jsessionid=3duqso4ie09gf.x-oecd-live-01


Paul Hunt said...

The Regulation of Lobbying Act was drafted and enacted becauee the Government at the time had to maintain the optical illusion in front of its peers and multi-country organisations or other NGOs (such as the OECD or Transaprency Inrernational) that it was complying with some basic features of open governance. If there was any possibility that its provisions would have restricted the ability of the various powerful and influential special interest groups to esnure that policies are formulated, enacted and implemented to advance and protect their interests the legislation would have been gutted or terminally delayed.

In most jurisdictions, but it is particularly the case in Ireland, those who go public with their lobbying (or who are prepared to have their lobbying activities revealed) and who rely totally on this publicly revealed lobbying are those who possess the least power and ability to influence public policy. Of course, some of those with power and influence will also go public, but this is invariably a front - they are expected to make a bit of noise publicly and are happy to feed the lazy media with copy. The real deals are done behind closed doors.

Looking for more transparency for these review groups, working groups, task forces, etc. is equally futile. Most of these groups are established to kick difficult issues in to the long grass - and to hide them from public attention. Again the real decisions are made by the principals behind closed doors and the members of these groups simply put a gloss on what is agreed without having any influence on the outcomes.

The economic regulatory regime is characterised by deal-making behind closed doors at the expense of ordinary citizens as both taxpayers and service users. But the evolution of the gloriously failed water charging regime is probably the perfect example of how deals are done behind closed doors with ministers, senior officials, elements of the semi-state and local government sectors with selected private sector service providers putting together a deal with numerous moving parts that protected and advanced the interests of all parties. It was geninely a work of art - until it was revealed to the public and enough citizens were angered and disgusted at how the parties involved were extracting economic rents, perpetuating inefficiencies and fattening themselves up at their expense.

Tweaking the provisions of or application of this Act will have no impact on reducing these blatant rip-offs, but it will provide activity for numerous parties. Perhaps that's the objective.

lgold said...

Couldn't agree more. Those of us in the NGO sector have been very diligent and quite scrupulous about filling in the register despite the onerous burden it places on us. Goodness knows what we'll do once the list of DPOs is expanded to POs as is anticipated. It would be a full time job to track it! Despite this, we do it because we buy the transparency narrative - even though it potentially weakens our position and drains time.

Those really influential, "informal communications" behind closed doors or on the golf course which you mention are a category of lobbying in the register - I've yet to see any of them reported!!!

The indirect role of think tanks, review groups etc. Not sure how that could be dealt with - revolving door comes to mind.

What's the timeline for this review? Are they involving those actually doing the reporting in it?

Nuala Haughey said...

Thanks for the comments folks - your points are very well made and and go to the heart of what the lobbying register is and what it is not. It is not a window on government and it does not protect the public interest against the scenarios outlined by Paul. As for the review Lorna, there are more details on the DPER website: http://www.per.gov.ie/en/regulation-of-lobbying/