Statement on the revised Recommendation of the OECD council on Transparency and Integrity in Lobbying and Influence

Transparency International welcomes the new 2024 OECD Recommendation on Transparency and Integrity in Lobbying and Influence which provides guidance to restrict undue influence on government policies and increase equity in stakeholder participation.

The new standards address challenges to the integrity of public policymaking that did not exist in 2010, when the OECD issued its first standards. To effectively restrict undue influence, governments must implement the recommendation in ways that make influence more equal.

We value that the recommendation strengthens transparency and integrity of delegations to inter-governmental decision-making spaces, since this had not been addressed in the past. Integrity frameworks are much needed to prevent conflicts of interest arising from private-sector participation in, for instance, negotiations of UN-related agreements critical to the future of humanity, such as those concerning climate change and sustainable development.

Among the positive innovations are the recognition of new forms of influence, the transparency of lobbying and influence actors’ beneficial ownership, disclosure requirements for sponsored media content and advertising, and alignment between responsible business goals and lobbying activities. However, some issues are left ambiguously addressed. We, therefore, recommend that the upcoming “tailored guidance” to support implementation clarifies the following:

1. Balancing business and societal interests in decision making is crucial. The new recommendation requires public officials to seek inputs from stakeholders underrepresented in the public decision-making process. However, it no longer includes the more ambitious language of the 2010 recommendation, which emphasised the importance of counterbalancing “vocal vested interests” and ensuring a balance between “business and societal interests”. Since 2010, more evidence has become available on innovative practices to elicit views from society into public decision making. We hope the implementation guidance does not shy away from offering governments ideas – such as those from the 2020 OECD report on innovative citizen participation – for engaging concerned but underrepresented stakeholders outside professional lobbying actors.
2. Clarifying the ambiguity over interest representation by lawyers and “any other professionals’’. The recommendation exempts the “provision of legal advice and representation by lawyers or any other professionals when advising clients about administrative and judicial procedures”, but this is done in ambiguous terms. The implementation guidance must specify the criteria that litigation-related communications should meet to be protected by lawyer-client confidentiality. Additionally, it must distinguish confidential communications from the regular “legal advice” provided by law and consultancy firms that does fall under the definition of lobbying. The guidance should also clarify which professional activities, if any, should also be legitimately compelled to observe similar confidentiality duties. Doing so will prevent this exemption from becoming a loophole that allows consultancy firms to engage in lobbying and influence without proper oversight.
3. Facilitating scrutiny through centralised registers and unique identifiers. The recommendation does not explicitly require governments to set up centralised registers for lobbying and influence actors. This is a setback from the 2010 recommendation, which called for “a publicly available register”. A centralised register enables consistent logging of actors and activities, as well as homogeneous lobby expenditure records. The recommendation does not adopt the standard use of unique identifiers for influence and lobbying actors either. Scrutinising lobbying in a country without a single register or unique identifiers faces two major challenges. First, it makes it difficult to make registration a pre-requisite to contact officials, which would facilitate due diligence. Second, public scrutiny becomes laborious and costly, not only for journalists and civil society watchdogs but also for the agency responsible for reviewing the completeness of records and enforcing sanctions.
4. Getting an accurate financial picture of influencing. The recommendation asks for disclosure of the “sources of financing” for all influence actors, “above a certain threshold”. It is regrettable that no explicit requirement for disclosing expenditure is set. The tailored guidance to support the implementation should remedy this omission. Expenditure disclosure provides a more accurate picture of the relative levels of influence by different types of actors. The disclosure problems of the EU Lobbying Register serve as a cautionary tale. At the EU level, organisations representing commercial interests or specialising in lobbying must report the estimated yearly costs specifically tied to their lobbying activities (estimated at 1.6 billion euros in 2023). In contrast, non-commercial entities, whose operations only partially involve lobbying and influencing activities, are required to disclose their total global operating budgets (312 billion euros in 2023). Without requiring expenditure disclosure, both decision makers and the public will be ill-equipped to assess whose voice is more influential.
5. Ensuring a footprint of other office holders’ inputs to decision making. The mandatory footprint is a commendable innovation. Its introduction, however, remains ambiguous. On the one hand, recommendation II defines it as “[the] documentation that details the stakeholders who sought to influence or were consulted (…)”. On the other hand, recommendation III b) reduces the footprint to the disclosure of “detailed information on lobbying and influence activities”. To ensure a footprint that adds high-value information, the implementation guidance must be systemic and prioritise the definition provided in II, while clarifying that i) “stakeholders” also refers to the public officials from different agencies and branches of government (internal stakeholders) as well as the unregistered lobbying and influence actors (external stakeholders) that were consulted or provided inputs; and that ii) “documentation” also refers to officials’ diaries, communications, meeting minutes, and other documents they proactively sought and referenced. Crucially, the footprint must also provide justification for choices made.
6. Helping at-risk officials identify situations of influence peddling. Many OECD countries establish the offence of influence peddling in their criminal law, in the spirit of the UNCAC. It is accepted wisdom that elected officials, because of their rulemaking power, are at-risk of being targeted by rent-seekers and influence peddlers. Our inputs to the consultation aimed at preventing influence peddling. We suggested preventive measures such as restrictions on political donations by lobbyists – whose clients carry out or seek a government contract – to incumbents targeted by their lobbying. While the recommendation stresses transparency of lobbying actors’ donations, its implementation must also stress the importance of raising awareness of the risks stemming from private political donations.

We look forward to contributing to the development of guidance for the revised recommendation, on these and other issues.

Sincerely,

Transparency International Australia

Kosova Democratic Institute

Transparency International Netherlands

Transparency International Lithuania

Transparency International New Zealand

Transparency International Slovenia

Transparency International France

Transparencia Mexicana

Transparency International U.S.

Transparency International Ireland

Transparency International España

Transparency International EU

Transparency Serbia

Transparency International Secretariat

Contact person: Jorge Valladares Molleda | Political Integrity, Policy Lead | [email protected]