Interview with Elizabeth Crossick on the transparency initiative

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In an interview with EURACTIV, Elizabeth Crossick of Freshfields says she does not see the point in disclosing the fees law firms are paid to carry out lobbying tasks for their clients. This, she argues, would do little to deter potential improper behaviour.

Do you believe that all the different people listed as lobbyists in the Transparency Green Paper – NGOs, law firms, PA consultants – can actually get together and sign up to a common code of conduct?

There are two things here: the definition of lobby
ists
and the definition of lobby
ing
. Anyone, even in a remote village, can be a lobbyist. So it is not a definition of lobbyists that is important to have, but a definition about lobby
ing
. It makes a big difference!

A lawyer who is acting as a lawyer is not a lobbyist. A lawyer who is inputting into the decision-making process by representing a client in a piece of legislation, is doing lobbying. You can wear many hats. So it is not the person that makes the definition, but the issue. As far as coming together, we already have the SEAP [Society of European Affairs Professionals] code of conduct, and we signed up to it. We are 200-300 of us who signed up to the register. Nobody in my team can work without signing up to the SEAP code of conduct. 

The big issue here is to encourage those who do not sign up to it to do so. And the other big issue is the cultural issue. For example: when is something a gift? If a parliamentary assistant is kind enough to open up the door to your client, do you send her flowers afterwards to thank her, if it is a woman? Southern Europeans would say: absolutely! But the Scandinavian reaction would be: absolutely not in any way! So, no matter how much regulation you do, you cannot change cultural ways of doing things.

But I would add to that: who are the most successful lobbyists? Probably the Anglo-Saxons and the Scandinavians. So doesn’t that show you that even when they are opportunities to “muddy the waters” a bit, actually, what decision-makers are looking for is clarity of thoughts, clarity of issues, and working through these issues… And ultimately that’s what a successful lobbyist does! 

The Green Paper suggests that every lobbyist signs up to an online public register, and receives in exchange incentive such as email alerts on topics of known interest to them. Would you be willing to register to such a database?

If it is voluntary, yes, obviously. I would need to see what the small print of CONECCS [Commission’s civil society database] really is. We already signed up to the SEAP code of conduct, we are already accredited to the European Parliament, so I cannot see why we would not register.

…And about the email alerts? Would that really be useful to you? Would that be an incentive?

I don’t think, really. In the European Parliament, it’s so clear what you get when you sign up. But the Commission cannot offer the same. I know both SEAP and EPACA were saying that you would need to get something in return from signing in, so this is the Commission’s response. But frankly, if it is a system similar to the EP accreditation system, I don’t think there will be a problem. 

Another suggestion is that lobbyists disclose the name of their clients, and some even goes as far as suggesting that fees should be disclosed as well. Would law firms be ready to disclose the names of their clients at all?

Well, I think you have to be careful what you’re talking about. In my law firm we would not dream of calling up the Commission without telling the name of our client.

But would you be willing to disclose that information to the general public via a central database that is accessible by everybody on the internet?

There are a number of things about this. Number 1 is that you would need to get the consent of the client. Number 2: when we organise things for clients, we are pretty clear who we are doing it for and on behalf of whom. 

In terms of fees, I cannot see the point, really. I do not see why you need to know what the fee level is.

…Some people are quite interested to know how much money is being invested in these lobbying efforts, so that they can weigh the different forces in presence and the pressure which is being applied…

I don’t think the size of the fees has anything to do with whether the pressure has been exerted badly or not, or in the wrong way, frankly. The fact that clients pay fees for lobbying is part of the democratic architecture.

And I also think this is a very dangerous path to go down, because how are we going to prove the fee levels? Is somebody going to go and check the fees invoices? And then there will be incentives for blowing them up! 

I think the point is that money should not be the only access route to successful outcomes. But then I have to say I think that the EU is pretty good at that: I don’t think big money does equate with successful outcomes here. I would even say that if you overstep the lobbying, and you spend too much on the publicity side, sometimes it fails. It is much more sophisticated than that! 

The American approach is much more different, based on different foundations. The EU is so diverse, with so many different interests, that if a client comes to me and says “throw money at it,” I would simply not do it! That’s not the way we do it. We look at a disciplined campaign, we look at what the issues are, how best to get those into Court, we would not go for spending vast amounts of money on publicity and all the rest, because it often proves ineffective! I think money is probably more of a case in national lobbying than in EU lobbying. 

What do you see as the biggest challenge for self-regulation by all the different types of lobbyists – NGOs, lawyers, consultants, etc.? 

I think encouraging more people signing up the SEAP code, the EPACA code. Because for example, the SEAP code: you sign up to it, and then you get training, and you don’t get your certificate unless you’ve done that training. I have been doing this for many years, but I had to go to that training, which was done by people who were probably ten years younger than me, but I learnt many interesting things there. So yes, encouraging more people to sign up to such codes, and yes, to take actions the Commission has framed. 

But as said, the Green Paper is a little bit vague about the database. Look at what it says – General principles and minimum standards for consultation: of course! But the CONNECS database…

I understand that the idea is to have a central database that brings together CONNECs and the Parliament’s databases…

That makes sense, and if it is just like what the EP is already doing, and involves the code of conduct we’ve already sign up to, then, sure, no problem. But then you have to make sure than it is not just the lobbyists getting trained, but also the institutions. It’s two-sided. 

If the initiative gets through, and that everybody signs up to a common code, do you think this will help deter people who might want to engage into dubious or “border line” lobbying? 

There are bad guys in every profession. If you’ve got somebody who is prepared to break up the law, all laws in the world won’t stop him from doing so. What all this does is drawing the attention of a number of people about what is expected of them. I think there is the case here of lots of people not breaking the law voluntarily, but mostly not realising that what they are doing is close to the line. It is not because they want to break the law, or because they are evil, but because of cultural differences. 

The way things work in different countries is reflected in the way people lobby. So, a lot of this is about education. Things have already changed for the time I have been in Brussels, and if you speak to the lobbyists of the generation back, we are getting much more professional. 

And because of that, we are getting clearer about what is acceptable or not. The moral of the day has changed. And the facts that more and more people are going to read the Green Paper and the comments on it, in their own language, will draw attention to the fact that they have to look at their own behaviour. And if at the same time you educate the officials, so that they know to ask the right questions and very importantly, to give the answers, then you have a good balance. 

They know we are useful to the institutions, but once they meet us, they don’t talk to us. If we stick to our side of the bargain, they have to stick to theirs. It’s all a matter of education. I don’t think anything proposed in the Green Paper is particularly shocking, so I think it has to be implemented, both from the people who lobby and from the institutions themselves. 

How do you intend to contribute to this Green Paper on transparency?

We have not discussed yet, whether we will react at all, or as a firm, or as lawyers… A lot of this is common sense. What everybody is worried about is whether it will increase administrative burden.

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