13. Participation
This chapter provides a commentary on the principle of participation contained within the OECD Recommendation of the Council on Public Integrity. Through insights on promoting transparency and open government, it offers guidance on fostering individuals’ right to know and engaging stakeholders throughout the policy-making process. The chapter also looks at key components to avert policy capture, including managing conflict-of-interest situations and promoting transparency in lobbying and the financing of political parties and electoral campaigns. It explores an additional factor to foster participation and accountability, namely setting the standards and practical conditions for a society that includes “watchdog” organisations. Finally the chapter discusses several challenges to participation, including how to develop meaningful stakeholder engagement measures and implement effective revolving door regulations.
Public policies are at the centre of the relationship between people and governments. To a large extent, they determine the quality of people’s daily lives. While in principle policy makers should pursue the public interest, in practice they also need to acknowledge the existence of diverse legitimate interest groups and consider the costs and benefits for these groups. Since policies generally entail both winners and losers, real “win-win” situations are an exception. This context creates incentives and opportunities to influence public decisions in favour of a particular stakeholder, thereby excluding others from public decision-making processes.
Enforcing the right to know through transparency and access to information, and the inclusive and fair participation of stakeholders and participation of advocacy groups, media and “watchdog” organisations, are key instruments for levelling the playing field and reaching informed public decisions. Promoting integrity and transparency in lobbying and the financing of political parties and campaigns, and managing and preventing conflict of interest, also protect the policy-making process from being dominated by particular interests.
The OECD Recommendation on Public Integrity states that adherents should “encourage transparency and stakeholders’ engagement at all stages of the political process and policy cycle to promote accountability and the public interest, in particular through:
a. promoting transparency and an open government, including ensuring access to information and open data, along with timely responses to requests for information;
b. granting all stakeholders – including the private sector, civil society and individuals – access in the development and implementation of public policies;
c. averting the capture of public policies by narrow interest groups through managing conflict-of-interest situations, and instilling transparency in lobbying activities and in the financing of political parties and election campaigns;
d. encouraging a society that includes “watchdog” organisations, citizens groups, labour unions and independent media” (OECD, 2017[1]).
Strengthening participation in the policy-making process is a multifaceted means to foster public scrutiny, ensure accountability and provide information to individuals. Increasing participation requires the following:
The government is open and transparent, ensuring timely and unrestricted access to information and open government data.
Stakeholders can participate in the design, implementation and evaluation of public policies.
Robust measures to avert the capture of public policies are in place.
The legal, political and public environments support effective civic space and thereby a robust civil society.
13.2.1. The government is open and transparent, ensuring timely and unrestricted access to information and open government data
Transparency is necessary for public integrity, as it increases the costs of concealment and fraud associated with corrupt activities. From a behavioural perspective, transparency can also reduce unethical behaviour, because the perception that one’s behaviour is visible and potentially observed introduces an element of accountability that makes justifying unethical action more difficult (OECD, 2018[2]). Open government, access to information and open government data are three critical tools that governments can use to ensure transparency and accountability.
Open government
Open government can be defined as “a culture of governance that promotes the principles of transparency, integrity, accountability and stakeholder participation in support of democracy and inclusive growth” (OECD, 2017[3]). The key principles of an open government are detailed in the OECD Recommendation of the Council on Open Government, and include:
transparency – the disclosure and subsequent accessibility of relevant government data and information
integrity – the consistent alignment of, and adherence to, shared ethical values, principles and norms for upholding and prioritising the public interest over private interests in the public sector
accountability – the government’s responsibility and duty to inform its citizens about the decisions it makes as well as to provide an account of the activities and performance of the entire government and its public officials
stakeholder participation – all the ways in which stakeholders can be involved in the policy cycle and in service design and delivery, including through the provision of information, consultation and engagement (OECD, 2017[4]).
Guidance as well as implementation, co-ordination and evaluation structures and mechanisms (e.g. strategies and action plans, open or digital government task forces or units, platforms or portals, databases, dashboards, toolkits, etc.) support public organisations in their daily efforts to apply open government principles (OECD, 2017[4]).
Access to information
Access to information laws, another key component of transparency, necessitates balancing access with both individual rights to privacy and the confidentiality of information which if disclosed could harm the public interest. Beyond this dual challenge, an effective access to information regime requires an enabling legal framework, clearly defined and limited exemptions and barriers, adequate resources, and timely responses.1
Ensuring an enabling legal environment for access to information
An enabling legal framework safeguards the right to access public information. However, provisions related to access, exemptions and restrictions may exist in different parts of the legal and regulatory framework, from access to public information acts to data protection and privacy acts, including media and defence or trade secrets regulations. Dispersed provisions may create obstacles in implementing access to information, due to overlaps or distinct definitions and frameworks. As such, ensuring consistency across provisions facilitates interpretation and implementation, and enhances effective and efficient handling of information requests and responses.
To support effective implementation, policy elements that can also complement the legislative framework include:
institutional policies with regard to practical response times, which may be shorter than the ones prescribed by law
access that is free or free under certain circumstances, or applicable fees that should not hinder access to information
information management, with consideration for quality, protection and security of the information
active dissemination of information (e.g. campaigns, printed or broadcast materials) and how it should be presented (e.g. guidelines, style manuals, etc.)
guidance on how to handle contacts with citizens (OECD, 2001[5]).
Moreover, to support implementation, governments can assign the relevant responsibilities for implementing, controlling and enforcing access to information laws at the national, sub-national and organisational levels (for more, see Chapter 2). Oversight functions such as information commissioners or ombudsmen may also play a role in controlling, handling and investigating complaints (for more, see Chapter 12) and issuing recommendations for further reforms (OECD, 2001[5]).2
Limiting exemptions and barriers
Across all OECD governments, exceptions regarding certain government information are usually defined in the legal and regulatory framework to account for sensitive data and information on national security, personal data and commercial confidentiality (OECD, 2016[6]). Limiting exemptions to these specific, clearly defined areas ensures that access to public information remains the norm. Governments can clarify that these or other justifications are not to be used to unduly restrict citizens’ right to access public information.
Moreover, while governments may require identification or proof of interest as a screening or prioritisation tool, a heavy process can create barriers. Ensuring that only the necessary information is required or allowing anonymous requests may reduce these risks. Yet, limitations to such provisions may apply when identity disclosure is needed to process the request. OECD governments have adopted diverse positions on the issue of anonymity. For example, anonymity is provided de facto in the United Kingdom and Canada, whereas in Estonia and Finland it is guaranteed by specific provisions in the respective freedom of information legislation (OECD, 2016[6]).
Another barrier to requests can include fees charged to access public information. Most fees depend on the number of pages (re-)produced or time needed to process the request. With open government data disclosure, public entities are encouraged to abandon fees in order to ensure equal and timely access and reuse of public information.
Allocating sufficient resources to guarantee access to information
Dedicating sufficient resources (human and financial) allows organisations to proactively produce or publish information, or process requests in a timely manner. Similarly, governments can invest resources in implementing tools, such as electronic instruments, registers, portals or applications that enable access to public information. Such information systems are key to guaranteeing effective access to information rights, and can also alleviate some of the aforementioned challenges by allowing anonymity or granting immediate and free access to and reuse of public information.
Ensuring timely responses to requests for access to information
Regulating response times helps ensure that information is provided in a timely manner, and is a common practice across almost all OECD governments (within 20 working days or less). For example, a response is due within 5 days in Estonia, 10 in Portugal, 15 in Finland and Poland, and 20 days in Slovenia and the United Kingdom (OECD, 2016[6]).
In addition to regulating response times, governments can also make use of digital government and digital technologies to support more timely responses to information requests. For example, a website or data portal can ease access or filing requests. Such tools should be user-friendly to improve their usage. This may require reducing the number of folders or links to reach the information, clearly labelling data bulks and pages, or including filters to sort data.
Open government data
When published proactively, in open and machine-readable formats, and if possible free of cost, open government data can contribute to improving the design and delivery of public policies and services (OECD, 2018[7]). The enhanced access to, sharing and reuse of open government data also allow better understanding and monitoring of governments’ activities, spending and functioning.
Open government data rely on an “open by default” principle incorporated in the legal and regulatory framework, where exceptions related to data protection, ethics and privacy regulations are clearly listed. To strengthen their legal and regulatory framework, governments can consider the following set of principles defined by governments, civil society and experts in the International Open Data Charter (2015[8]):
open by default
timely and comprehensive
accessible and usable
comparable and interoperable
for improved governance and citizen engagement
for inclusive development and innovation.
Beyond committing to open government data, developing a strategy and action plan helps operationalise an open data policy, with tailored and concrete objectives and actions for delivery (OECD, 2018[7]). Some governments, such as Ireland and Poland, have developed national open data strategies. Others3 have developed action plans that include open data, in the context of the Open Government Partnership (OGP). In the framework of the OGP, their implementation is assessed and results are recorded in progress reports to ensure accountability to civil society partners and the public. Building on open government data strategies and action plans, public organisations, businesses, individuals, civil society and investigative journalists can reuse them to create new content or partnerships for open government data initiatives.
Creating value from open government data requires making high-value datasets (e.g. fiscal, contracting, budget) publicly available, guaranteeing data quality (accuracy, consistency, comprehensiveness, timeliness) and promoting data demand and reuse (Ubaldi, 2013[9]). Bringing actors such as data-driven journalists closer to open government data initiatives also contributes to promoting the reuse of data towards the achievement of public sector integrity goals (OECD, 2017[10]).
Specific integrity-related open government data initiatives include:
open contracting, which by opening data on public procurement allows citizens, civil society, journalists and researchers to scrutinise public resources management, to monitor decisions and public spending effectiveness, and to identify corruption risks
open budgets, as tools to increase accountability of governments, performance budgeting or fiscal transparency
other open data initiatives for integrity and anticorruption empowering citizens, civil society, journalists, academics and researchers to monitor the transparency and integrity of lobbying activities, political parties and electoral campaign financing, assets and interests disclosure of public officials, beneficial ownerships, etc. (OECD, 2018[7]).
The success of open government data initiatives requires the active and proactive involvement of governments to support and understand the needs of user communities, establish partnerships, and design initiatives and events to foster the reuse of open data for integrity.
13.2.2. Stakeholders can participate in the design and implementation of public policies
Stakeholder engagement refers to involving key stakeholders (government, civil society, business and individuals) in the policy-making process, at all stages of the policy cycle as well as in service design and delivery (OECD, 2017[4]), by providing them with access to relevant material and using their input to improve the quality of policies (OECD, 2018[11]). Meaningful stakeholder engagement safeguards the public interest, enhances the inclusiveness of policies, inspires ownership over policy outcomes and can also support innovative solutions. Governments can collect and check empirical information for analytical purposes, identify policy alternatives, measure expectations and in the end gain valuable information on which to base their policy decisions (OECD, 2018[11]).
At the national level, the requirement to conduct stakeholder engagement may originate from various government instruments, including law, the constitution or mandatory guidelines. Moreover, requirements to conduct stakeholder engagement can cover both primary laws and secondary regulations, as shown in Figure 13.1. In line with less stringent formal requirements, in some countries consultation practices are less developed for subordinate regulations than for primary ones (OECD, 2018[11]).
Note: Data for OECD countries are based on the 34 countries that were OECD members in 2014 and the European Union. Data on new OECD member and accession countries in 2017 include Colombia, Costa Rica, Latvia, and Lithuania.
Source: Indicators of Regulatory Policy and Governance surveys, 2014 and 2017, http://oe.cd/ireg (accessed 19 February 2020).
Stakeholder engagement can take many forms, including focus groups, expert panels and surveys (OECD, 2016[6]). Figure 13.2 identifies different forms of stakeholder engagement practices that can be used for consultation on primary and secondary legislation, although engagement practices can extend beyond regulatory processes (OECD, 2017[12]) (OECD, 2018[11]).
Note: Data on new OECD member and accession countries in 2017 include Colombia, Costa Rica, Latvia, and Lithuania.
Source: Indicators of Regulatory Policy and Governance Surveys, 2014 and 2017, http://oe.cd/ireg (accessed 19 February 2020).
Formally requiring stakeholder engagement is not sufficient to ensure effective implementation: timing and scope also matter. For instance, most engagement initiatives on legal or regulatory proposals take place late in the rule-making process, through public consultation over the Internet or consultation with selected groups (e.g. business associations and trade unions) (OECD, 2018[11]). This timing is often too late to influence the process, and may indicate that stakeholder engagement is a mere formality.
As such, to ensure that stakeholder engagement is meaningful – as well as ensuring democratic legitimacy – governments can integrate it across the policy cycle, from agenda setting to policy evaluation. Table 13.1 identifies tools that governments can use at each stage to ensure meaningful engagement.
Additionally, to prevent stakeholder engagement processes from being “hijacked” by powerful interests, governments can look beyond traditional consultation processes, targeting the “willing but unable” and the “able but unwilling”. Some social groups, hampered by a lack of awareness, low participation literacy and information overload, are unlikely to engage effectively (“willing but unable”) even when given the opportunity; by contrast, well-organised groups use traditional channels of communication with government more effectively. Governments can appeal to people who are “able but unwilling” to participate because of subjective barriers, such as a low interest in politics or a lack of trust in the meaningful use of popular input in the consultation process (OECD, 2009[14]). In some countries, governments are working with civil society groups to access hard-to-reach social groups. For example, organisations like Involve in the United Kingdom and MASS LBP in Canada bring together a range of different groups in society to engage with national and sub-national levels of government on specific policy issues. Table 13.2 provides a framework for managing stakeholder engagement to promote accountability and the public interest.
13.2.3. Robust measures to avert the capture of public policies are in place
Policy capture is the process of consistently or repeatedly directing public policy decisions away from the public interest and towards the interests of a specific interest group or person. Policy capture can be achieved through diverse means such as bribery, but also through legal activities and mechanisms such as lobbying and financial support to political parties and election campaigns (OECD, 2017[13]). To avert capture of public policies by specific interests, it is essential to establish clear and proportionate measures to i) prevent and manage conflicts of interest, ii) manage asset and interest disclosures, iii) instil transparency and integrity in lobbying activities, and iv) ensure transparency and integrity in the financing of political parties and electoral campaigns.
Measures to manage conflicts of interest are in place
Managing conflicts of interest in the public sector is crucial. If they are not detected and managed appropriately, they can undermine the integrity of officials, decisions, agencies and governments, and ultimately lead to private interests capturing the policy process (OECD, 2004[15]). Managing conflicts of interest helps level the playing field and ensure stakeholders’ fair and adequate access to policy makers and policy-making processes. The OECD Recommendation of the Council on Guidelines for Managing Conflict of Interest in the Public Service adopted a definition to support effective identification and management of such situations:
A “conflict of interest” involves a conflict between the public duty and private interests of a public official, in which the public official has private-capacity interests, which could improperly influence the performance of their official duties and responsibilities. (OECD, 2004[15])
Governments can set clear rules on what is expected of public officials in preventing and managing conflict-of-interest situations, both when they join the public service and throughout their careers (for more, see Chapters 1 and 4). Rules should clearly note that public officials are responsible for managing and preventing conflicts of interest. Moreover, rules should provide a clear and realistic description of circumstances and relationships that can lead to a conflict-of-interest situation. The description of conflict-of-interest situations should be consistent with the idea that situations exist in which the private interests and affiliations of a public official create, or have the potential to create, conflict with the proper performance of official duties. The description should also recognise that public organisations are responsible for defining situations and activities that are incompatible with their role or public duties. Clear rules and descriptions help build a common understanding of conflict-of-interest situations within the public sector but also with external partners, enhancing transparency and integrity in public decision-making processes.
To ensure that employees understand their responsibilities under the conflict-of-interest measures, governments could involve employees and their representatives in reviewing existing conflict-of-interest policies, consulting with public officials on future prevention measures, and providing capacity building for public officials to gain knowledge of and skills for dealing with conflict of interest. Public organisations can also publish the conflict-of-interest policy, provide regular reminders, and ensure that rules and procedures are available and accessible. Furthermore, as preventing and managing conflicts of interest are responsibilities shared with the private sector, public organisations can raise awareness of standards of conduct in place to prevent and mitigate public officials’ conflicts of interest (for more, see Chapter 4).
Moreover, public organisations need to ensure that specific measures are in place to address at-risk positions such as public procurement, revenue collection or licensing, as well as at-risk situations such as pre- and post-public employment, additional employment or outside appointments. Measures can include removal (temporary or permanent), recusal or restriction, transfer or rearrangement, and resignation (for more, see Chapter 4).
Furthermore, assigning clear responsibilities for the conflict-of-interest policy is critical for ensuring implementation (for more, see Chapter 2). Some governments assign responsibility to a centralised body, whereas others have a centralised body with contact points within each ministry or agency. For example, in the United States executive branch, the central supervising ethics office is the Office of Government Ethics, which is supported by contact points – known as Designated Agency Ethics Officials – in each executive agency. The key consideration is to ensure policy responsibility by identifying a function as responsible for developing and maintaining the conflict-of-interest policy and procedures.
Finally, to enable effective accountability for managing and preventing conflict-of-interest situations, public organisations can implement clear procedures for identifying a conflict-of-interest offence, and proportional consequences for non-compliance with the conflict-of-interest policy (including disciplinary sanctions). Public organisations can also develop monitoring mechanisms to detect policy breaches, which could include for example complaint mechanisms to deal with allegations of non-compliance.
Measures to manage asset and interest disclosure are in place
Asset and interest disclosure is widespread across OECD governments (OECD, 2015[16]). By promoting transparency, disclosure helps to strengthen accountability mechanisms and safeguards against undue influence on policy makers and policy-making processes. Moreover, implementation of asset and interest disclosure mechanisms helps detect and prevent unethical behaviours and abuse of power in the public service, as well as risks of money laundering and corruption (Rossi, Pop and Berger, 2017[17]). When both interests and assets are covered, governments have either chosen one single form of disclosure, as in Mexico, or two separate ones, as in France, Lithuania and Portugal. Disclosure provisions cover financial and non-financial assets and interests that public officials hold, including:
financial: real assets and personal properties (houses, fields, boats, jewellery, works of art, etc.), financial assets and investments, securities and stocks, trusts, income, intangible assets (licences, permits, intellectual property rights), liabilities, remunerated memberships, positions and outside activities as well as government contracts
non-financial: non-remunerated memberships, positions and outside activities, spouse or partner’s functions, etc.
Governments have sometimes requested that public officials declare additional information such as beneficial ownership or control of companies, gifts and sponsored travels, expenses and transactions while in functions, pre-tenure employment work and activities, children’s and other relatives’ functions and activities, etc.
Clearly defined objectives pursued by asset and interest disclosure and verification processes to ensure their effective implementation are essential. Some disclosure mechanisms aim at detecting illicit enrichment, others at preventing conflicts of interest, and still others both. As such, these mechanisms foster public officials’ accountability to oversight institutions and the public. They are instrumental in the detection of financial and non-financial interests that may affect their decisions. However, verification of compliance with requirements to disclose as well as checks on the accuracy and completeness of the content need to be performed for effective implementation. These processes may involve dedicated human resources with the necessary technical skills and may include cross-checking information with other publicly available data sources (real estate, public registers of companies, etc.) and administrative databases (tax administration, anti-money laundering units, procurement databases, etc.). Conducting verification procedures in order to prevent or detect conflict of interest includes:
Compliance with restrictions to strengthen public integrity, notably on prohibited outside activities (rules on incompatibility), divestment of financial interests, post-employment restrictions, etc. Non-compliance with these restrictions and requirements can result in sanctions.
Detection of specific interests or activities that may give rise to situations of potential, actual or apparent conflicts of interest with a public official’s duties and position.
Moreover, clear objectives and corresponding verification processes help ensure the regularity of disclosure and verification. Disclosure before or upon entry into public functions and departure is often provided for. These processes are instrumental in detecting potential conflicts of interest in public functions or post-public employment. In between, governments may opt for additional disclosure, on a regular basis (annually or every two years) or when changes occur in public duties or in the public officials’ assets and interests, to detect any issue that may arise from such changes. When the scope covered by disclosure requirements is large and/or the frequency is higher, adopting a risk-based approach to prioritising controls is necessary.
The legal and regulatory framework may also provide for transparency mechanisms proportionate to functions occupied and integrity risks, to foster not only management but also prevention of conflicts of interest in the public sector. Various methods to make the information public and accessible are used. They include publishing interest declarations, as in France, Latvia and Mexico; providing summaries of declarations, as in Canada; or publishing summaries of declarations of assets in the Official State Gazette and declarations of activities upon request, as in Spain. Making an interest or a potential conflict of interest public can also rely upon public ad hoc disclosure – for instance, in the course of debate in a parliamentary committee or plenary session, as in the UK House of Commons (House of Commons, 2009[18]).
Making information available also helps inform the public about public officials’ interests, links and potential biases in policy making, thereby providing an additional accountability and scrutiny mechanism. The information made public can be reused for investigative purposes by journalists and other jurisdictions, for research by academia and think tanks, or for advocacy reasons by civil society organisations. This allows holding public officials accountable and verifying if they effectively made special arrangements to manage their conflicts of interest.
Measures to instil transparency and integrity in lobbying activities are in place
Lobbying is “the oral or written communication with a public official to influence legislation, policy or administrative decisions” (OECD, 2010[19]). It provides decision makers with valuable insights and information, and can facilitate stakeholder access to policy development and implementation. Yet it is often perceived as undermining equitable access and preventing fair, impartial and effective policy making, as it might be a mechanism used by powerful groups or specific interests to influence laws and regulations at the expense of the public interest. Indeed, practices to influence public policies go beyond lobbying and can include a myriad of other actions, such as sponsorship, financing research and education, funding organisations, philanthropy, and support for advocacy networks. Undue influence can also be exercised without public decision makers’ direct involvement or knowledge, by manipulating the information provided to them, or establishing close social or emotional ties with them (OECD, 2017[13]).
The OECD Recommendation of the Council on Principles for Transparency and Integrity in Lobbying sets out the following measures to ensure that lobbying is a useful tool for policy making:
setting clear definitions for “lobbyists” and “lobbying”
enhancing transparency in lobbying activities
fostering a culture of integrity in the interactions between lobbyists and public officials
ensuring effective implementation, compliance and review (OECD, 2010[19]).
Governments can ensure a clear definition of lobbying and lobbyists by determining the actors covered by lobbying rules and regulations. Some countries, such as the United Kingdom, opt for a narrow scope that includes only consultant or in-house lobbyists, while others cover wider categories such as civil society organisations, businesses and others, as is the case in both France and Ireland (Box 13.1). Indeed, including a wide range of actors under the definition of lobbying, such as in-house or consultant lobbyists, trade and business associations, trade unions, think tanks, or CSOs can help ensure clarity in terms of who has influence in the policy-making process. Coupled with this, governments can define the types of communication with public officials that are or are not considered lobbying, as in the case in the Irish Regulation of Lobbying Act (Box 13.1).
To enhance transparency in lobbying activities, governments can require disclosures by lobbyists, including their name, contact details, the employer’s name and names of clients, and whether the lobbyist is a former public official, receives any government funding, or contributes to any political campaigns. Governments can also enable scrutiny of lobbying activities by providing timely, reliable, accessible and intelligible public disclosures of reports on those activities. Moreover, creating open and user-friendly registers can facilitate public access to data on lobbying activities. This may be done for example through an open online register (as is the case in Canada, France and Ireland, among other countries). To ensure a high compliance rate and that relevant information is disclosed in a timely manner by lobbyists, registering or filing declarations should be easy. This may involve providing generic menu lists for basic information to disclose, or in-context guidance to answer commonly asked questions and support lobbyists throughout these processes, and allowing them to access, update and modify former registrations, reports and declarations when applicable. Developing these instruments requires dedicated financial and human resources, as well as capacities and skills to support both developing and implementing these tools.
Fostering a culture of integrity in the interactions between public officials and lobbyists requires clear rules of and guidelines for conduct for public officials. This includes principles, standards and procedures that give public officials clear direction on how to engage and communicate with lobbyists (OECD, 2014[20]). For example, in Ireland a code of conduct was drafted to guide their behaviour following a large-scale consultation (Box 13.1). Such a consultative process helps to involve stakeholders in the process; to understand their constraints, potential misunderstandings and demands; and to ensure higher acceptability and implementation of the rules.
The Irish regulations on lobbying were informed by a wide consultation process that gathered opinions on its design, structure and implementation, based on the OECD Recommendation on Principles for Transparency and Integrity in Lobbying.
The 2015 Regulation of Lobbying Act is simple and comprehensive: any individual, company or CSO that seeks to directly or indirectly influence officials on a policy issue must enrol on a public register and disclose any lobbying activity. The rules cover any meeting with high-level public officials, as well as letters, emails or tweets intended to influence policy.
According to the regulation, a lobbyist is anyone who employs more than 10 individuals, works for an advocacy body, is a professional paid by a client to communicate on someone else’s behalf or is communicating about land development. All individuals and entities covered by this definition are required to register and disclose the lobbying activities they carry out and to comply with an established code of conduct.
On 28 November 2018, the Standards in Public Office Commission launched its Code of Conduct for persons engaged in lobbying activities. It came into effect on 1 January 2019, and will be reviewed every three years. The definition of this code was also based on a wide consultation process, involving local, national and international actors. All inputs to the consultation were made publicly available on the website of the Commission along with the code.
The code sets out the eight principles to govern lobbying activities:
Demonstrating respect for public bodies
Acting with honesty and integrity
Ensuring accuracy of information
Disclosure of identity and purpose of lobbying activities
Preserving confidentiality
Avoiding improper influence
Observing the provisions of the Regulation of Lobbying Act
Having regard to the Code of Conduct.
Source: (Parliament of Ireland, 2015[21]; Standards in Public Office Commission, 2018[22]; Standards in Public Office Commission, 2015[23]).
Moreover, lobbyists themselves can ensure integrity in the way they engage with public officials through self-regulation mechanisms, such as a code of conduct and a monitoring-and-enforcement system. A number of existing measures are in place to promote adherence to high standards of conduct in lobbying, including the Code of Venice, Code of Athens, Code of Lisbon, the Stockholm Charter and the Code of Brussels, as well as regional codes and charters within professional organisations (for a concise overview of these codes and standards, as well as other self-regulation measures, see (Transparency International Ireland, 2015[24]; OECD, 2012[25])
Ensuring integrity in lobbying also involves establishing standards for public officials leaving office to prevent conflict of interest when seeking a new position, inhibit the misuse of “confidential information” and avoid post-public service “switching sides” in specific processes in which former public officials were substantially involved (Box 13.2) (OECD, 2014[20]). Time limits, or “cooling off” periods, are a useful tool to restrict post-public employment lobbying, “switching sides”, and use of insider information.
There is substantial variation between as well as within countries that use cooling-off periods according to position, when it comes to time limits adopted. For example:
In Australia, article 7 of the Lobbying Code of Conduct sets a cooling-off period of 18 months for ministers and parliamentary secretaries, and 12 months for ministerial staff. During those times, the former are prohibited from engaging in lobbying activities pertaining to any matter on which they worked in the last 18 months of employment, and the latter in the last 12 months.
In Canada, the Lobbying Act prohibits “former designated public office holders” from carrying on most lobbying activities for a period of five years.
In Italy, specific national legal provisions (d. lgs. 165/2001, art. 53, c. 16-ter, modified by the Anti-Corruption law no. 190/2012) prevent public officials who have held managerial and negotiating positions in the previous three years from performing related duties in a private sector entity.
In the United Kingdom, the Ministerial Code does not allow ministers to lobby government for two years after they leave office. Moreover, UK ministers and senior crown servants must seek permission of the Advisory Committee on Business Appointments before taking on any new paid or unpaid appointment within two years of leaving ministerial office or crown service.
In the United States, public procurement officials are prohibited from accepting compensation from a contractor for one year following their government employment if they served in certain decision-making roles with respect to a contract awarded to that contractor. They are also required to disclose any contacts regarding non-federal employment by an offeror on an active procurement, and either reject such offers of employment or disqualify themselves from further participation in the procurement.
When considering the length of cooling-off periods, core factors to take into account include whether the time lengths are fair, proportionate and reasonable considering the seriousness of the potential offence. Tailoring the duration of restrictions is also necessary depending on the type of problem area and level of seniority. For example, a ban on lobbying may be appropriate for a specific length of time, but restrictions on the use of insider information should be for life, or until the sensitive information is public.
Source: (OECD, 2010[26])World Bank, OECD and G20 (forthcoming), Preventing and Managing Conflicts of Interest: Good Practices Guide.
Effective implementation of the lobbying measures requires compliance with the framework as well as review. Governments can support implementation by establishing monitoring functions with the necessary capacities to detect non-compliance with registration and disclosure requirements, and errors in reported information. In addition, governments can set clear and compelling sanctions for breaching the standards or code of conduct (OECD, 2014[20]), although as shown in Figure 13.3, only a handful of countries have a lobbying registry empowered with sanctions. In France for instance, following detection of a violation of ethical rules and after formal notice to the individual or entity, any new disregard of the rules for the next three years may result in a one-year prison sentence and a EUR 15 000 fine (HATVP, 2018[27]).
Measures to ensure transparency and integrity in the financing of political parties and election campaigns are in place
Ensuring transparency and integrity in the financing of political parties and electoral campaigns is crucial to policy making. Financial contributions allow individuals and entities to channel their support to candidates, political parties and particular issues of interest to them. They are a necessary resource for candidates and parties to run for elections and diffuse ideas and manifestos. However, the financing of political parties can also pose significant risks to the integrity of decision making. If the financing of political parties and electoral campaigns is not adequately regulated, money may become an instrument of undue influence and policy capture. Instilling transparency in the financing of political parties and election campaigns is meant to address policy capture risks (OECD, 2016[28]).
The OECD Framework on Financing Democracy sets out the key elements for a robust legal framework for transparency and integrity in the financing of political parties and electoral campaigns, and includes:
promoting a level playing field
ensuring transparency and accountability
fostering a culture of integrity
ensuring compliance and review (OECD, 2016[28]).
To promote a level playing field, a number of legal and policy options are available. For example, to balance funding from public and private sources, governments (or the relevant functions to regulate political parties and electoral campaign financing) can provide direct funding to political parties or candidates based on clear and equitable criteria, such as equal access and proportionality. Other tools can also be used, such as indirect funding – including tax exemptions – and subsidised access to media and meeting rooms. In determining the level of direct and indirect funding, a few considerations are noteworthy. If public funding is too restrictive it can prevent the creation of new parties, but if it is too permissive it could promote establishment of spurious parties. The legislative framework could therefore allow parties to compete and balance inequalities by monetary or in-kind subsidies, while also maintaining room for private contributions. However, banning certain types of private contributions, including anonymous donations, contributions from foreign states or enterprises, and publicly owned enterprises, helps ensure interests are balanced. Figure 13.4 gives an overview of the types of bans on private funding in OECD countries. As well, governments (or the relevant functions to regulate political parties and electoral campaign financing) can ban the use of public funds and resources in favour of or against political parties during an electoral campaign. They can also incorporate into the legislative framework measures requiring campaign expense limits for political parties, candidates and third parties.
Source: IDEA, Political Finance Database, https://www.idea.int/data-tools/data/political-finance-database.
The second element involves transparency and accountability measures. Disclosing sufficient and relevant financial information of political parties and candidates helps understand private interests behind contributions, mechanisms and sources of financing, and their potential impact on political competition and decision-making processes (OECD, 2017[13]). To that end, governments (or the relevant functions to regulate political parties and electoral campaign financing) can require that all contributions to political parties and candidates be reported and registered. In doing so, they should bear in mind the donors’ right to privacy and data protection, and require political parties to make financial reports public, including all contributions that exceed a fixed ceiling (as is the case in the United States – see Box 13.3). Moreover, governments (or the relevant functions to regulate political parties and electoral campaign financing) can mandate reporting by political parties and candidates of their finances during the electoral campaign. Finally, governments (or the relevant functions to regulate political parties and electoral campaign financing) can apply beneficial ownership rules that require mandatory disclosures of company data to identify the owners of corporations, establish a central register, and make the information accessible to the public.
The Federal Election Campaign Act of 1971 (FECA) obliges political committees to submit financial reports to the Federal Election Commission (FEC), which in turn makes them publicly available in person at the FEC offices in Washington, DC or online. The FEC has developed detailed standard forms to be used, requiring among other things precise information concerning contributions, donors, disbursements and receivers. All contributions to federal candidates are aggregated based on an election cycle, which begins on the first day following the date of the previous general election and ends on the election day, whereas contributions to political parties and other political committees are aggregated on a calendar year basis.
The intensity of the reporting may differ. For example, a national party committee is obliged to file monthly reports in both election and non-election years; a principal campaign committee of a congressional candidate must file a financial report 12 days before and another report 30 days after the election in addition to quarterly reports every year. The FECA prescribes that the financial reports are to be made public within 48 hours; however, in most cases the FEC manages to make reports available online within 24 hours.
Source: (Federal Election Commission, 2019[29]).
Regulating the financing of political parties and election campaigns cannot be effective without also fostering a culture of integrity. On their own, controls of party and election funding could merely lead to rechannelling money spent to obtain political influence through lobbying and through third-party financing. Certain elements of the integrity system are therefore particularly relevant for fostering a culture of integrity for those who are on the receiving end of political party and campaign financing. These include establishing integrity standards and conflict-of-interest policies, ensuring integrity in human resource management, providing capacity building and guidance, and implementing whistleblowing policies as well as mechanisms for control and audit (for more, see Chapters 4, 7-10 and 12).
Finally, compliance and review mechanisms are necessary to ensure transparency and integrity in the financing of political parties and campaigns. In particular, an independent body that has the mandate to oversee the financing of political parties and election campaigns ensures oversight of the whole system. The oversight body needs to have clearly defined and adequate powers, mandate, and financial and human resources. This body can be assigned a mandate to review candidates’ and political parties’ finance reports, carry out investigations, and refer cases for prosecution. Many institutions that are responsible for examining financial reports and/or investigating breaches of political finance regulations are also able to impose sanctions. This is the case in Estonia, Latvia, Lithuania and Spain, for example. In other cases, once violations are investigated and ascertained, cases are referred to judicial authorities or bodies with sanctioning power, as in France, Greece, Slovenia, Ireland, and the United States for instance. Sanctions should be effective, proportionate to the violations and damages caused, and dissuasive. Across OECD governments, sanctions may range from administrative penalties to forfeiture, mandatory corrective action, loss of public funding, de-registration and/or criminal punishment.
13.2.4. The legal, political and public environments support effective civic space and thereby a robust civil society
Civil society organisations, labour unions and independent media (herein “civil society”) can play a watchdog role in monitoring government. An active and engaged civil society can subject government action to public scrutiny of the performance of duties, the use of powers, and the allocation and spending of public funds. Yet the effective participation of civil society depends on several key factors. First, the existence of an enabling legal framework that allows civil society to participate in all aspects of society without political or legal (including funding) restrictions is crucial. Second, the willingness of the state to engage constructively with civil society matters. As discussed in Section 13.2.2, strengthening the relationship between government and individuals improves the quality of policies by integrating different points of views, and enhancing public trust in the government and its actions. Thirdly, civil society actors must also demonstrate a strong commitment to integrity within their own organisations (for more, see Chapter 5). The rest of this section explores the elements that should be in place to support civil society organisations and media institutions in fulfilling their watchdog role.
Measures are in place for civil society organisations to carry out their watchdog roles
The core measures to ensure civil society organisations can carry out their watchdog roles include freedom of opinion and expression, freedom of association, peaceful assembly, and the right to participate in public affairs. These principles are enshrined in international human rights law, and transposed across national legal frameworks. While countries may differ in the way each of these freedoms are realised, the following measures are crucial:
promoting freedom of opinion and expression, including a free, uncensored and unhindered press or other media
ensuring that freedom of association4 is guaranteed through minimal legal and administrative provisions that favour simple notification to a neutral body and are available to all at little or no cost, with no compulsory registration requirement for basic operations
supporting freedom of peaceful assembly5 through a presumption established in law that assemblies will be peaceful, as well as laws that specify that everyone has the right to organise and participate in meetings and demonstrations without a permit or prior authorisation; or, where applicable, clearly defined and rational criteria for registration based on the number of participants
encouraging the right to participate in public affairs by including legal provisions that elaborate on equal rights and opportunities for all genders and communities to participate in state institutions and political bodies, as well as provisions that enable stakeholder engagement and oversight of government actions (UN High Commissioner for Human Rights, 2016[30]).
Countries need to ensure that the legislation and institutions are in place to protect the lives, liberty, physical integrity and privacy of civil society actors from arbitrary state interference. In addition to ensuring that these freedoms are enshrined in legal text, countries can also support an enabling environment through access to justice mechanisms. This includes access to an independent and effective judiciary, national human rights institutions, and regional and international human rights mechanisms (UN High Commissioner for Human Rights, 2016[30]).
To be effective, the legal framework needs to be complemented by a political and public environment that recognises and upholds the value of an independent, engaged and active civil society. Governments have a number of tools available to show support for civil society. These include support for civic education programmes that champion student engagement with civil society; mechanisms to engage civil society actors in policy development (as discussed in Section 13.2.2) and using awards and honours to highlight the contributions of civil society to the political and public landscape (UN High Commissioner for Human Rights, 2016[30]). Furthermore, as discussed in Section 13.2.1, access to information and open data are also critical components of an enabling environment for civil society.
Measures are in place for media to fulfil their watchdog roles
An independent media is a critical tool for anti-corruption, as it can bring to light cases of fraud and abuse of power that may otherwise remain hidden. Investigating corruption can, however, be a very dangerous undertaking. Around the world, investigative journalists face threats to their safety, including death, injury, harassment or illegal detainment. It is therefore imperative that legislative measures exist to protect journalists, including ensuring appropriate intervention whenever journalists receive threats (Council of Europe, 2016[31]).
The effectiveness of independent media in the fight against corruption can be further undermined if there is not sufficient protection of journalists and their sources from potential retribution.6 It can be dangerous for members of the public to provide journalists with information, especially if that information concerns serious misbehaviour or pertains to corruption. The legal framework should therefore protect journalists’ sources (Council of Europe, 2016[31]). It is very important to clearly specify those restrictions, so that journalists can reliably inform their potential sources about the risks involved in their disclosure of information.
While libel laws may have a role to play in preventing the slander of innocent individuals, the exceptions to freedom of expression should be narrowly defined in order to protect the privacy of others. Exceptions may not be used in combination with harsh penalties (including imprisonment) that aim to deter the media from reporting on corruption cases. Even non-penal libel laws can lead to media self-censorship and therefore should be designed as carefully and clearly as possible.
A plurality of media owners also contributes to a more effective “watchdog” environment by reducing the risk of public opinion being dominated by a single actor. Relying solely on publicly owned media makes it difficult to gauge whether reporting is unbiased. Likewise, relying solely on privately owned media may result in media “moguls” who use their position to exert undue influence on news content. Therefore, opting for and promoting a mix of both public and private media can help ensure a balance (Stapenhurst, 2000[32]). Similarly, transparency in media ownership is also a crucial component. For the public to evaluate the objectivity of specific media outlets and for the government to evaluate media diversity, the business interests of media owners should be transparent and accessible to all. If the media owner does business with the government, transparency is even more relevant to prevent any form of undue political influence. Governments could consider instituting measures to require disclosure of business interests to an independent regulator or directly to the public in the form of a publicly available registry, or both. Governments could also consider establishing transparency measures to identify the beneficial owners of the media, especially in the broadcasting sector.
Although they may vary depending on national contexts, challenges to participation include the following:
strengthening administrative capacity to ensure meaningful engagement
implementing “revolving door” regulations.
13.3.1. Strengthening administrative capacity to ensure meaningful engagement
Although strengthening openness, enhancing transparency and ensuring inclusive decision-making processes helps promote integrity in decision making, implementation remains a shared challenge for the majority of countries. This is largely due to the challenge of low administrative capacity – including weak mandates, planning or incentives, or a non-supportive administrative culture.
Ensuring that stakeholder engagement becomes a reality requires a cultural shift in the activities of the public service. As discussed above, stakeholder engagement should not take place only at the end of the process, but rather throughout the policy cycle, from agenda setting to policy evaluation. A government-wide policy that sets the requirements and objectives of stakeholder engagement can be an effective first step, and supported by senior management commitment to engaging individuals in the development of public policies. Ensuring that public officials have the capacities in terms of training in effective methods, as well as the resources (time and financial) to conduct meaningful stakeholder engagement is also key. Indeed, successful stakeholder engagement relies on sufficient and strategic planning to ensure that the necessary resources and capacity are in place to ensure representation, moderating, analysing and arbitrating across the community.
Finally, as discussed previously, preventing the capture of the stakeholder engagement process requires guidance for public officials on how to ensure transparency and equity in the process. While governments are not required to systematically accept all inputs received during the process, policy makers should set out openly and transparently the reasons for rejecting the inputs and maintain accountability for their decision.
13.3.2. Implementing “revolving door” regulations
Conflicts of interest can arise and present the risk of policy capture in the movement between positions in the public and private sectors. When functions cover fields that are closed or were directly controlled by the former public official, this so-called revolving door phenomenon can be perceived as granting an unfair advantage in terms of information, relations or any other type of advantage gained in the previous public functions. In some cases, public officials may be tempted to make or be perceived to have made decisions not in the public interest, but in the interest of a former or future employer. Considering the increasing mobility of individuals between the public and private sectors and the expertise developed by individuals in those sectors, the phenomenon is likely to increase and revolving door issues may arise from situations such as:
seeking future employment outside the public service
lobbying former public employers
using “insider information”
being employed in the public service to perform the same tasks performed in former private sector functions
being re-employed by the public service, for example as a consultant, to perform tasks similar to the ones carried out in former public functions.
One of the main challenges to implementing revolving door regulations is to find an adequate balance and codify rules and restrictions to safeguard public integrity without unduly affecting either individuals’ careers or public service efficiency. By setting specific and proportionate restrictions and prohibitions on public officials, depending on the functions they occupy and tasks performed, governments have tried to address these risks of potential conflict of interest (as is the case in France – see Box 13.4). However, implementing these revolving door provisions can, as noted, be challenging. Depending on the scope of functions covered by the provisions and the cooling-off time chosen, functions responsible for enforcing revolving door provisions may lack the resources to check all notifications for future employment or remunerated activity and deliver informed approval, with reserves if needed, or disapproval.
In France, since 2013 the High Authority for Transparency in Public Life (HATVP) has been responsible for monitoring implementation of revolving door provisions for members of the government, members of boards of independent administrative agencies and main local elected officials. During the three years following termination of their functions, these officials must request authorisation before embarking on any new private remunerated activity. Failing to do so or not abiding by the decision of the institution is a criminal offence. Decisions made by HATVP are communicated to both the former administration and future employer. After they have been communicated to the former public official, these decisions issued for former members of the government and main local elected officials are published on line, increasing public scrutiny and oversight.
From February 2020, merging with the Civil Service Ethics Commission, the authority’s scope will extend to monitoring revolving door regulations for all civil servants. Any civil servant leaving for private sector functions will refer to their line managers, and if necessary, ethics officers within the administrations. If a doubt is not resolved at those two first levels, the HATVP will intervene in cases where agents are in at-risk functions as a last recourse when the hierarchical level or nature of functions requires it.
Source: (HATVP, n.d.[33]).
Moreover, senior public officials specialised in a particular field or activity who are bound by a cooling-off period face the risk of a longer inactivity time if they do not receive approval. Some governments have addressed these situations by granting an allowance involving all or part of the former salary to high-ranking public officials covered by such provisions. In France, members of the government receive an allowance for three months following termination of their public functions; the allowance is equivalent to their former monthly salary if they filed their end-of-function asset declaration to the relevant authority. However, these arrangements usually do not cover the whole cooling-off period, nor do they apply to the whole scope of functions covered by the revolving door regulations. Additional challenges may arise in the absence of notification where public officials are bound by legal requirements to provide notification of their new private positions, and in situations that the legal framework does not cover (e.g. the former public officials are no longer within the legal delays covered by this requirement but still have useful “insider information”).
To address the tensions between individuals’ right to pursue a career in their field of expertise, the integrity of public decisions, and limited resources to monitor all movements – including of those who have not provided notification of new private functions – governments may consider:
establishing or strengthening the legal and regulatory framework to cover at a minimum the main risk areas (e.g. regulated sectors, fields and tasks falling within the scope of former public functions) and functions (e.g. high-level political and management leaders, regulators) for post-public employment conflicts of interest
setting proportionate standards, restrictions (e.g. time limits, functions, arrangements that may be implemented in potentially problematic situations), oversight and accountability measures and sanctions in case of violations
communicating these standards on a regular basis and providing guidance and support to address questions and emerging concerns through different channels and tools (e.g. through HRM processes, in-service ethical training and guidance) with regard to career options, potential restrictions and case-by-case arrangements to be taken in ongoing or future activities
establishing digital tools to monitor movements and alert systems for oversight bodies, based for example on open available information (e.g. news media, civil society and watchdog reports, interest and asset disclosure, trade registries)
adjusting standards, guidance and accountability mechanisms on a regular basis to adapt to the evolving social, economic and political context.
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Notes
← 1. For more information on implementing strong access to information measures and related guidance and tools, see for example (Access Info, n.d.[34]).
← 2. For more information on institutions that support the access to information regime, see (OECD, 2019[35]).
← 3. Canada, the Czech Republic, France, Germany, Italy, Lithuania, Mexico, the Republic of Korea, Spain, the United Kingdom and the United States.
← 4. The right to freedom of association protects the right to form and join associations to pursue common goals.
← 5. The right to peaceful assembly protects the right of individuals and groups to meet and to engage in peaceful protest.
← 6. For more information on ensuring and enabling a safe environment for media, please see the work of the Council of Europe www.coe.int/en/web/freedom-expression/safety-of-journalists (accessed 20 February 2020).