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MALTATODAY 14 August 2022

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13 NEWS maltatoday | SUNDAY • 14 AUGUST 2022 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 deci- sion-making process. Lobbyists disguised as consult- ants Standards Commissioner George Hyzler had already warned that persons may be engaged as consultants in or- der 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 pri- vate 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 or- ganisation. One risk identified by OSCE is that lobbyists may indirect- ly influence policy- and de- cision-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 favour- able 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 credibil- ity of sources provided by third parties. OSCE is also wary of exempt- ing lobbies from the act of re- questing factual information from public officials, as a covert way of putting pressure or lob- bying. OSCE said a blanket ex- emption would open the win- dow for flooding a designated public official with requests that may amount to massive lobbying campaigns that re- main undetected and unre- ported. To avert this, OSCE proposed that the exception should only cover communica- tions by lobbyists in response to a request from a public of- ficial concerning factual infor- mation, or for the sole purpose of answering technical ques- tions from a public office-hold- er, provided that the response does not otherwise seek to in- fluence such a decision or can- not be considered as seeking to influence such a decision. In the United Kingdom for example, if a designated public official initiates communica- tion with an organisation and in the subsequent course of the exchange, the criteria for lob- bying are met, then the organ- isation is required to register the activity. Lobbying by religious groups In his original proposal Hyzler had exempted religious organ- isations and political parties from having to register their meetings with government of- ficials. But the OSCE report makes it clear that "third-party communications on behalf of religious entities and organ- isations and political parties should not be exempt." Presently among the 22 OSCE member states that have lobby- ing transparency requirements, 12 consider the influence of communications of religious organisations as lobbying activ- ities, 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 except- ed from transparency rules, the activities of religious organi- sations 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 ap- proval of a new law. Lobbying through the media OSCE also wants the defini- tion of lobbying to cater for paid campaigns aimed at in- creasing 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 regis- tered as a lobbyists. In Canada, lobbyists are re- quired to disclose any com- munication techniques used, which includes any appeals to members of the public through mass media, or by direct com- munication, aiming to per- suade the public to communi- cate directly with public office holders, in order to pressure them to endorse a particular opinion. Similarly, the EU Transpar- ency Register covers activities aimed at "indirectly influenc- ing" EU institutions, including through the use of interme- diate 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 pub- lic-spirited NGOs who may use social media to encourage people to send objections on a particular project, and devious public manipulation by corpo- rate 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 reg- ulation. According to OSCE govern- ments 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 indi- cates the lobbyists consulted in the development of legislative initiatives. Presently, Maltese planning legislation already obliges the publication of any formal writ- ten recommendation made by individuals during public con- sultation periods. But even here these rules are limited to written communica- tion and do not cover informal meetings; the PA itself had cit- ed 'meetings' with stakehold- ers 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 knowl- edge that developers make presentations on major devel- opment projects to both gov- ernment and the opposition, no record is kept of such meet- ings, something which would have to change if lobbying rules come into effect. Moreover, there is at pres- ent no way to check who was consulted on the issue of legal notices like the one authoriz- ing 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'.

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