Football, builders and religion: lobbying rules to cure the Maltese malaise

Two years ago, Standards Commissioner George Hyzler proposed a transparency registry in which ministers would have to log any communication, including electronic communication, with lobbyists.

In its feedback the OSCE (Organisation for Security and Cooperation in Europe) has endorsed this proposal and now goes deeper in identifying other ambiguous situations, including the dangers posed by regulators who become lobbyists after the expiry of their term in office and vice-versa, as well as the risk of lobbyists posing as experts and ‘consultants’ in a bid to change the goalposts.

All this is particularly relevant in a country which has just seen its former prime minister being appointed chairman of a lobby for top-tier football clubs – effectively becoming a lobbyist himself, three years after resigning from office.

Another example was how the Malta Developers Association had recruited Marthese Portelli, the Opposition’s former spokesperson for planning; and also, Deborah Schembri, a former parliamentary secretary responsible for planning under Labour.

The employment of former PN politicians by the DB Group is yet another indication of the cosy relationship between the political class and business lobbyists. And the ambiguity between consultants and lobbyists was illustrated by the ‘advice’ on planning policy given by practicing architects like government advisor Robert Musumeci.

Stopping doors from revolving fast

In a bid to address the problem posed by revolving doors, the OSCE does not actually preclude former MPs, ministers and civil servants from taking jobs as lobbyists on behalf of corporate bodies. It simply suggests that that the Office of the Prime Minister should adopt ‘cooling-off periods’ for elected officials and appointed officials in at-risk positions. Significantly it also proposed setting out a cooling-off period on appointing or hiring a lobbyist to fill a regulatory or an advisory post.

So much depends on the length of the cooling-off period. In fact the OSCE report endorses the Standard Commissioner’s recommendation of a ban on lobbying their former employer for certain public officials for a set term after they cease to hold office: three years in the case of ministers, parliamentary secretaries and the Principal Permanent Secretary, and one year for members of the House of Representatives, permanent secretaries, directors-general, and the chairpersons and chief executive officers of government companies, foundations and other entities.

If enacted this way, Joseph Muscat would be perfectly entitled to lobby for football clubs, but would have to wait till January next year. Some countries have longer cooling-off periods: in Canada public office-holders are prohibited from engaging in any consultant lobbying activities for five years. Similarly, former designated public office-holders who are employed by an organisation are also prohibited from engaging in any lobbying activities for the same five-year period. But other countries like the US and the Netherlands have shorter cooling-off periods.

Another problem is how to define lobbying. For as the OSCE notes, Malta lacks a tradition of professional lobbying. This means that professionals aligned to the interests of a particular lobby like hunters or developers may end up being appointed government consultants without formally having formed part of a formal lobby. In fact, OSCE makes it clear that MPs should not just log in meetings with lobbyists listed in a formal register, but also with any individual who is seeking influence on the decision-making process.

Lobbyists disguised as consultants

Standards Commissioner George Hyzler had already warned that persons may be engaged as consultants in order to avoid registration as lobbyists, while still engaging in the promotion of certain interests and suggesting that “the consultative process with any such individuals should be adequately registered, minuted and reported”.

The OSCE report endorses this stance while identifying other risks like the role of hired consultants and experts by private lobby groups. For example, back in 2013 a planning policy regulating fireworks factories was written by a committee chaired by Labour MP Michael Falzon, who also served as legal advisor of the pyrotechnic organisation.

One risk identified by OSCE is that lobbyists may indirectly influence policy- and decision-making by supporting and promoting studies that challenge scientific arguments unfavourable to their interests, or highlighting the results of studies financed by their own centres, institutes and other organisations that are favourable to their interests. To that end, OSCE has called on the Principal Permanent Secretary to issue guidelines for public officials, to help them become aware of the possibility of being indirectly influenced through biased or false evidence, and the need to assess the credibility of sources provided by third parties.

OSCE is also wary of exempting lobbies from the act of requesting factual information from public officials, as a covert way of putting pressure or lobbying. OSCE said a blanket exemption would open the window for flooding a designated public official with requests that may amount to massive lobbying campaigns that remain undetected and unreported. To avert this, OSCE proposed that the exception should only cover communications by lobbyists in response to a request from a public official concerning factual information, or for the sole purpose of answering technical questions from a public office-holder, provided that the response does not otherwise seek to influence such a decision or cannot be considered as seeking to influence such a decision.

In the United Kingdom for example, if a designated public official initiates communication with an organisation and in the subsequent course of the exchange, the criteria for lobbying are met, then the organisation is required to register the activity.

Lobbying by religious groups

In his original proposal Hyzler had exempted religious organisations and political parties from having to register their meetings with government officials. But the OSCE report makes it clear that “third-party communications on behalf of religious entities and organisations and political parties should not be exempt.”

Presently among the 22 OSCE member states that have lobbying transparency requirements, 12 consider the influence of communications of religious organisations as lobbying activities, while 10 explicitly exempt them. Taking into account “the specific cultural and social context of Malta”, OSCE has proposed that while religious denominations can be excepted from transparency rules, the activities of religious organisations or groups representing religious interests in the scope of the law should not.

This means that any religious group lobbying politicians on any law, regulation, permit or authorisation would still fall under the scope of rules. This means that a minister or MP would still have to register any meeting with religious groups seeking to influence the approval of a new law.

Lobbying through the media

OSCE also wants the definition of lobbying to cater for paid campaigns aimed at increasing pressure on elected officials to change laws and regulations. This would not make such activity illegal but would oblige anyone involved in such campaigns to be registered as a lobbyists.

In Canada, lobbyists are required to disclose any communication techniques used, which includes any appeals to members of the public through mass media, or by direct communication, aiming to persuade the public to communicate directly with public office holders, in order to pressure them to endorse a particular opinion.

Similarly, the EU Transparency Register covers activities aimed at “indirectly influencing” EU institutions, including through the use of intermediate vectors such as media, public opinion, conferences or social events.

One risk of such a rule, not mentioned by OSCE, is that it would put on the same footing grassroot campaigns by public-spirited NGOs who may use social media to encourage people to send objections on a particular project, and devious public manipulation by corporate bodies planting favourable commentary or blurring the lines between advertising and news.

Establishing the legislative footprint

One major radical change proposed by the OECD is the proposed obligation on the State to publish the legislative footprint of each law and regulation.

According to OSCE governments should facilitate public scrutiny by indicating who has sought to influence legislative or policy-making processes. This can be done by disclosing a legislative footprint that indicates the lobbyists consulted in the development of legislative initiatives.

Presently, Maltese planning legislation already obliges the publication of any formal written recommendation made by individuals during public consultation periods.

But even here these rules are limited to written communication and do not cover informal meetings; the PA itself had cited ‘meetings’ with stakeholders to justify changes made to the fuel station policy in 2015 which went beyond what was suggested in the formal public consultation.

And while it is public knowledge that developers make presentations on major development projects to both government and the opposition, no record is kept of such meetings, something which would have to change if lobbying rules come into effect.

Moreover, there is at present no way to check who was consulted on the issue of legal notices like the one authorizing loud music in Valletta after 11pm. Crucially, apart from proposing sanctions on those in breach of transparency rules, OSCE is also suggesting that rules, laws and permits issued in violation of lobbying rules should be ‘rectified’.