The participation of lobbies or interest groups in the decision-making process of public administrations constitutes an important aspect of the democratic process insofar as these groups provide information and resources of great value to these public administrations, which in this way can make better decisions and design and implement more effective public policies.


April, 08 2019   |   Xavier Bernadí i Gil & Agustí Cerrillo i Martínez


The participation of lobbies or interest groups in the decision-making process of public administrations constitutes an important aspect of the democratic process insofar as these groups provide information and resources of great value to these public administrations, which in this way can make better decisions and design and implement more effective public policies.

However, their participation must be conducted with respect for the transparency of the activity they carry out, the integrity of both civil servants and the lobbies themselves in order to avoid conflicts of interest and cases of corruption, and equality in their access to public institutions in order to impede one set of interests from having greater capacity to influence public decision makers than others. With a view to guaranteeing these principles, several countries have adopted rules regulating the activity of lobbies, which incorporate various monitoring mechanisms, in some cases mandatory and in others voluntary.

Catalonia has pioneered lobby regulation in Spain. Three years ago the Parliament of Catalonia passed Law 19/2014, of 29 December, on Transparency, Access to Public Information and Good Governance, which includes specific regulation on lobbies.

In Law 19/2014, Catalan legislators take as their starting point the observation and the recognition that there are individuals and organisations that lawfully carry out activities that may influence the formulation and application of public policies to the benefit and in the interest of other individuals or organisations. In the face of this, they see fit to raise public awareness of those who carry out lobbying activities by means of various mechanisms.

The Catalan Transparency Law adopts a very broad definition of lobbies, taking them to mean any person or organisation that seeks to exert influence over public decision making, whether in the drafting of rules or the design or application of public policies. Despite the clarity of the definition, over the years the law has been in force some bodies, such as certain professional associations and most business organisations and trade unions, have not been considered to be lobbies, for a variety of reasons.

The Catalan regulation on lobbies is intended to guarantee the transparency of lobbyists’ activity through their registration in a specific register. Initially, Law 19/2014 stipulated that all Catalan public administrations and institutions were required to create a register of lobbyists. In particular, this requirement affected not only the Administration of the Generalitat of Catalonia and those bodies that comprise local government in Catalonia but the rest of the agencies, public bodies and institutions contained within the concept of public administration according to the law (including universities) and also the Parliament. However, it soon became clear that it would be difficult for all the obliged bodies to comply with this mandate. In fact, two years after the law came into force, only the Administration of the Generalitat and five city councils had created their register of lobbyists. In response to this situation, Decree Law 1/2017, of 14 February, set up the Register of Lobbyists of Catalonia, which serves as a register of lobbyists for the Administration of the Generalitat, local authorities and all other public bodies and agencies that, in accordance with Law 19/2014, are required to create a register of lobbyists. This new model does not preclude obliged bodies and agencies from creating their own register.

Although there is no explicit obligation to be entered in the register, entry of lobbyists in the register is compulsory for anyone wishing to influence the formulation and application of public policies to the benefit and in the interest of other individuals or organisations. In this direction, the Operating Protocol applicable to relations between senior officials and executive staff of the Administration of the Generalitat and its public sector and lobbyists, annexed to Agreement GOV/82/2016, of 21 June, reiterates that entry in the Registry of Lobbyists of the Administration of the Generalitat and its public sector is obligatory and stipulates that senior officials must check that a lobby is entered in the register before meeting a representative of that lobby. Indeed, since the adoption of this agreement the number of lobbies registered has increased exponentially, from 180 in June 2016 to 2,485 in December 2017.

In order to guarantee access to the content of the register of lobbyists, which is intended to provide information about the lobbies that belong to it and the activity they carry out, the register of lobbyists is deemed to be public. Furthermore, its data must be available through the transparency regime established by the same law and in reusable formats. The public agendas of senior officials are also made available in order to put on record which lobbies they have met and for what purpose. Lastly, the body responsible for the register is required to prepare a six-monthly statistical report on the activity and functioning of the register and an annual report on the activity and functioning of the register and the result of the control and accountability measures with regard to the lobbies entered in the register.

The Catalan Transparency Law also seeks to guarantee integrity in relations between lobbies and senior officials. In order to guarantee public integrity in lobbies’ activity, both lobbyists and public officials and employees must conduct their activity in accordance with several principles. Thus, Law 19/2014 states that senior officials must act according to a series of ethical principles and rules of conduct, notably including, for our purposes, the transparency of official activities, acts and decisions related to the management of the public affairs entrusted to them and their official agenda; impartiality in decision making, guaranteeing the necessary conditions for independent action, unaffected by conflicts of interest; equal treatment for all and the use of information to which they have access by reason of their position in the public interest, without obtaining any advantage for themselves or any third party. These principles have been specified, extended and developed by the Code of Conduct for senior officials and executive staff of the Administration of the Generalitat and the agencies of its public sector and the Operating Protocol applicable to relations between senior officials and executive staff of the Administration of the Generalitat and its public sector and lobbyists, and also the codes of conduct adopted by Catalan local governments. For their part, individuals and organisations entered in the register of lobbyists are likewise obliged to accept expressly and comply with a code of conduct that shall be drafted in accordance with the principles defined in Law 19/2014 and was specified in Decree 171/2015 in connection with the Administration of the Generalitat.

Non-compliance by lobbies with the obligations set forth in Law 19/2014 or the code of conduct applicable to them is considered to be an infringement that may lead to the imposing of a fine of between 6,001 and 12,000 euros and the suspension or definitive cancellation of their entry in the register of lobbyists. For the purposes of controlling the activity of lobbies, the possibility of fostering verification actions is provided for. An alert procedure has also been established so that anyone can report errors or omissions in the registration of lobbies to the body responsible for the register. Reports may give rise to the initiation of an investigation procedure and, if applicable, disciplinary proceedings.

By examining Catalan regulation on lobbies and analysing the experience gained through applying it, we can identify several elements that are useful for regulating the activity of lobbies and applying this regulation. These elements are extensively developed in the article we published in number 55 of Revista Catalana de Dret Públic and are listed briefly below.

  • First, lobby regulation is part of a more complex system of regulating transparency and public integrity.
  • Second, there is a need for a sufficiently robust, clear and precise definition of a lobby.
  • Third, the application of lobby regulation is complex and takes some time to bear its fruits.
  • Fourth, lobby regulation should foster a cultural change to be projected on the social perception of properly registered lobbies, in order to be able to banish the dark view of lobbies as organisations that exert unspeakable influences, and come to see them as organisations that contribute to the better governance of society.
  • Fifth, the transparency of lobbies’ influencing activity should be extended beyond senior officials and cover the civil service as a whole.
  • Sixth, it is essential to ensure equality of access by lobbies to public administrations, and to prevent certain lobbies with greater capacity to influence from capturing public decision makers.
  • Seventh, integrity must be guaranteed especially with regard to so-called revolving doors. As is well known, senior officials frequently provide their services in lobbies when they leave their public responsibility. In this direction, it is necessary to improve knowledge of the activities carried out by senior officials following termination of their responsibilities, ban the use of information or contacts gained during their time in office, and establish codes of conduct.
  • Eighth, the measures taken by various public administrations should be coordinated with those carried out by other public institutions, such as parliaments, again at diverse territorial levels.
  • Ninth, awareness-raising, information, training and advisory actions should be encouraged among senior officials and public employees, but also among lobbyists themselves.
  • Tenth and lastly, proper application of the regulations must be ensured, by granting to the responsible bodies the necessary resources and autonomy to guarantee the supervision of lobbies’ activity.

In short, the experience of recent years in Catalonia in the sphere of lobbies can be extremely useful for improving the regulation of relations between lobbies and our institutions within a framework of transparency and public integrity.

 


Xavier Bernadí i Gil is Professor of Administrative Law at Pompeu Fabra University and Director General of Law and Legal Entities in the Department of Justice, Generalitat of Catalonia. Agustí Cerrillo i Martínez is Chair of Administrative Law at the Open University of Catalonia.

 

References

Bernadí Gil, X., & Cerrillo i Martínez, A. (2017). Transparency, integrity and interest groups. Ten lessons learnt from the application of Law 19/2014, of 29 December. Revista Catalana de Dret Públic, 55, 1-2. doi:10.2436/rcdp.i55.2017.3017


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