TRANSPARENCY OF LOBBYING: THE IRISH TRANSPARENCY REGISTER

The Irish Lobby Register differs in many key ways to the EU Transparency Register. Several of these differences emanate from the mandatory nature of the Irish register. For example, its basis in legislation makes it illegal for lobbyists who fall under its remit not to register, and makes it possible to sanction those who fail to do so. The wide-ranging investigative powers under the act – including the ability to request documents and search premises – are also novel features. This strict approach differs from the EU system.

As registration on the EU Transparency Register is voluntary, the institutions have instead taken the approach of introducing incentives and conditionalities in order to boost registration. The voluntary approach includes a catch-all activity-based definition of lobbying activities. Returns under the Irish legislation are more regular but lack the financial information contained in those made under the EU system. It is also of note that the Irish register is managed by an independent public body, while the EU Transparency Register is managed by an internal joint secretariat between the EU Commission and Parliament.

In looking to the future, change may be on the horizon for both systems. The EU is moving towards a mandatory register which is expected to be based on an IIA between the European Parliament, the European Commission and the Council. The Commission recently completed a public consultation on the matter and a proposal is expected later this year. However, the use of an IIA, rather than a regulation or a directive, will mean that third parties (interest representatives) will not be legally obliged to sign up to the EU register as they are under the Irish system. It is, however, thought that an IIA between the EU institutions will create a de-facto mandatory regime through the use of further incentives and by obliging the institutions to adhere to internal rules on lobbying contacts.

As with any new legislation the success of the Irish register will be proved in its implementation. Its start has been promising. As of June 2016 there are over 1 338 registrants and over 4 500 lobbying returns have been made. The first Annual Report in regard to the Lobbying Act was published on 28 June 2016, and noted a largely positive response among those obliged to register. The register is entering a critical period as a review will be carried out before the end of 2016 by the Minister for Public Expenditure and Reform. The Minister must report back to both houses of the Oireachtas, including any recommendations for amendments, within six months of the commencement of the review. The sanctions and investigatory powers set out in the legislation will also come into force before the end of 2016.

Legal Basis: The Irish Lobby Register is a fully mandatory register, based on the Regulation of Lobbying Act 2015

Scope of Register: In contrast to the EU’s activity-based definition, the Lobbying Act explicitly defines those who may be considered lobbyists under the Act. It applies to commercial organisations with more than 10 full-time employees, representative bodies and advocacy bodies with at least one full-time employee and professionals engaged in lobbying on behalf of a client who fits within the other criteria. Any communication relating to the development or zoning of land is also covered.

Exemptions: Exemptions exist for communications relating to: private affairs, principal private residences, diplomatic affairs, dialogue between public officials, strictly factual information, trade union negotiations, threats to life or safety, security of the state, shareholders of state bodies, proceedings of a committee of either House of the Oireachtas, information requested and published by public bodies, groups established by a public body where the Transparency Code applies

Mandatory/Voluntary: The Irish Lobby Register is fully mandatory. Lobbyists falling within the definition of the Act are legally obliged to sign up and may face sanctions for failure to do so.

Elements Disclosed: In relation to the organisation: name, address, contact information, company registration number or charitable registration number. In returns relating to each lobbying activity: relevant matter, public policy area, specific details, intended results of lobbying, name of lobbyists, designated public officials (DPOs) or former DPOs involved in lobbying activity, grassroots campaigns managed, client information, specific lobbying activities, DPOs lobbied.

Code of Conduct: The Lobbying Act provides that the Standards Commission may produce, and from time to time revise, a code of conduct for persons carrying on lobbying activities with a view to promoting high professional standards and good practice. However, no such code has been developed to date

Privileges linked to registration: As registration on the Irish register is mandatory, no benefits have been introduced in order to promote registration.

Administration and Enforcement: While the Department of Public Expenditure and Reform is responsible for developing the legislation and regulations which dictate policy, the Standards in Public Office Commission implements the rules and manages the online register. The Standards in Public Office Commission is an independent public body with six members (four exofficio), and is chaired by a former Judge of the High Court. The Office of the Ombudsman provides the Secretariat for the Standards Commission.

Sanctions: The Lobbying Act sets out numerous sanctions in case of its contravention. In the case of a late return, the Standards Commission may in the first instance serve a 'fixed payment notice' on the person. The fixed payment is €200 and if paid before a specified date no prosecution in respect of the offence shall be initiated against the person. However, failure to comply may inflate this amount up to a fine of €2 500. Furthermore, a person who commits a relevant contravention of the act in any other way is guilty of an offence and liable to: (a) on summary conviction to a fine of up to €2 500, or (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both. However, it is important to note that the Registrar’s powers of sanction only come into force in late 2016.

Rules on updating: Returns must be made three times a year (in September, January and May) in respect of the preceding four-month period. If no lobbying activity has been carried out a nil return must be submitted

Definition

A lobbyist is defined by the Lobbying Act as being:

• An employer with more than 10 employees, where the communications are made on their behalf,
• A representative body with at least one employee communicating on behalf of its members, and the communication is done by a paid employee or office-holder of the body,
• An advocacy body with at least one employee that exists primarily to take up particular issues, and a paid employee or office-holder of the body is communicating on such issues,
• A third party being paid to communicate on behalf of a client who fits into one of the preceding three categories
• Any person communicating about the development or zoning of land.