IRELAND REGULATION OF LOBBYING IS MORE COMPREHENSIVE THAN OTHER EU COUNTRIES

Regulation of Lobbying Bill 2014, Seanad Second Stage

Introduction: Active lobbying is an essential element of a well-functioning and mature democracy. The purpose of lobbying by individuals or groups is to inform Government as to different societal and sectoral perspectives on public policy matters and also to seek to influence decisions taken at political and administrative level. The institutions of Government needs to hear from these varying interests in order to make well informed and grounded decisions balancing wider societal needs against the needs, expectations  and experiences of varying interests across the economic and social spectrum. The aim of this Bill is unequivocally not to restrict this flow of information, opinions, perspectives or proposals feeding into policy making or legislation but rather to bring about significantly greater transparency around this process. There is a strong public interest in identifying “who is lobbying whom about what”.. This Bill is specifically designed to achieve this goal through the establishment of a web based registration system of lobbying activity.

Why regulate lobbying?: On a daily basis, interest groups, representative bodies, industry and civil society organisations, NGOs, charities and third party professional lobbyists all provide crucial input and feedback to the political and public administration systems through communication of the views and concerns of the public to Government. However, they also clearly seek to influence the policy and decision-making process in order to align it to their goals and objectives. These goals and objectives may reflect a private, commercial or sectional interest or what may be represented as a wider public interest or benefit. It is appropriate that this activity is open to public scrutiny as part of the desirable checks and balances in a democracy. Such transparency also helps to ensure that any attempt to seek to exert undue or improper influence on the conduct of policy formulation is discouraged. Reports have highlighted inter alia the risk that the legitimacy of the political system could be eroded by the corrosive impact of secrecy and undue influence. The regulation of lobbying is one of a suite of measures which the Government is taking to address, through an extensive programme of political and government reform, the serious concerns which have emerged in this area. However, since communication is the essence of good policy making, the introduction of lobbying regulation cannot be allowed to obstruct the information channels to the political system and to the public service. The international experience of lobbying regulation is that  regulation has not given rise to such unintended harmful effects nor is there evidence that it has made it more difficult to gain access to key decision makers.

Outline of the Regulation of Lobbying Bill 2014

Part 1 of the Bill contains Sections 1 to 7.

Sections 1, 3 and 4 deal with standard preliminary and general matters including the title of the Bill and provisions for the commencement of the Bill.

Section 2 provides for a regular review of the operation, implementation and effectiveness of the legislation. The first review should be held no later than 1 year after commencement day. Each subsequent review should be held every 5 years thereafter. Reports on the findings and the recommendations of each review will be presented to both Houses of the Oireachtas within 6 months of the end of the relevant period.

 Section 5 provides the definition of lobbying. It establishes that lobbying activity is carried out by

1. Consultant lobbyists acting on behalf of a client,
2. Persons with more than 10 employees,
3. Representative bodies and advocacy bodies with at least 1 employee, and
4. Any person on matters of planning or rezoning of land.

 It defines the communications which constitute lobbying and those that are excluded. It determines that normal citizen interaction with public representatives relating to his or her private affairs will not be included in the register unless the communication is in respect of land re-zoning or development. Planning matters relating to an individual’s private residence would also be exempt.

It clarifies that unpaid volunteers of representative body or an advocacy body which exists primarily to take up particular issues will not be required to register under the Bill.  Representative or advocacy bodies will only be required to register a relevant communication where it is made by an employee of the body or by a remunerated office holder whose functions relate to the activities of the body as a whole.

This section also sets out other exemptions to the regulatory requirements set out in the Bill. Such exemptions include those relating to international relations, factual information, or other information sought by and published by a public body and matters posing a threat to the safety of persons or the security of the State. It also exempts communications between public officials acting in an official capacity.

Communications between members of a group, etc. established by a Minister or a public body and including persons from outside the public service are also exempt subject to a requirement to comply with a Transparency Code.

Section 6 sets out the meaning of designated public official. This term includes; Ministers, Ministers of State, Special Advisers, TDs and Senators, Members of Local Authorities and Irish MEPs. On commencement, the Bill will apply to communications with officials at Secretary General and Assistant Secretary level in the civil service and equivalent levels in local authorities. The Bill will be extended on a phased basis and further grades within the civil service and other areas of the public service will be prescibed as designated public officials in light of experience with implementation.

Section 7 defines certain terms used in the Bill.

Part 2 of the Bill contains Sections 8 to 15 and details how the system of registration of lobbying communications will operate.

Section 8 provides that a lobbyist must be registered before carrying on lobbying activities unless it is the first time to lobby. In that case the registration and the return must be completed before the next return date.

Section 9 provides that the Commission will establish a register of lobbyists. The Standards in Public Office Commission will be the Registrar.

Section 10 provides that the information to be supplied when registering or in a return will be available on the register. It provides for the Commission to decide not to publish certain personal information in order to prevent misuse or to protect the person’s right to privacy, e.g. private email addresses. It also sets out the role of the Commission should it deem that information given is inaccurate, out of date or misleading.

 Section 11 provides for the registration details to be included on the Register and for confirmation that the details entered onto the Register are correct. It also allows for registrants to have their registration marked as ceased.

Section 12 provides for returns to be filed. It requires three returns per year. Anyone engaged in lobbying, in accordance with the definitions in the Bill, must file a return for each of the mandatory return dates. It allows for a nil return to be submitted also.

Section 13 provides that the Commission may require clarification or further information and this must be returned within 21 days of the date of the notice. Where a reply is not received within 21 days the inaccurate registration or return will be removed from the register for noncompliance and a notice of the removal will be issued. The registration or return will be considered as not having been made. In certain circumstances the Commission may also immediately remove the information from the register.

 Section 14 provides for delayed publication where the registrant believes the registration or the return relating to the lobbying activity would be expected to have a serious adverse effect on

1. the financial interests of the State,
2. the national economy, or
3. business interests generally or the business interests of any description of persons.

It establishes that the Commission on receipt of the application will consult with the relevant Ministers where appropriate before a decision is made in relation to such matters coming.

Delayed publication may also be sought where immediate publication would be expected to cause a material financial loss to the person to whom the information relates or prejudice seriously the competitive position of that person in the conduct of the person’s occupation, profession or business or the outcome of any contractual or other negotiations being conducted by that person.

In both cases, the Commission would be required to consider whether the public interest would, on balance, be better served by refusing to grant than by granting the application. The Commission may also decide to publish summary information only.

Section 15 is a technical provision and establishes that any document which the Commission certified as a copy of an entry on the Register is deemed to be a true copy.

Part 3 of the Bill contains Sections 16 and 17 and deals with the code of conduct for lobbyists and guidance to be provided by the Commission.

Section 16 allows for a statutory code of conduct to be created for lobbyists by the Commission. In developing a code the Commission must consult with interested organisations or individuals.

Section 17 allows the Commission to issue guidance particularly with a view to promoting awareness and understanding of the Bill.

Part 4 contains Sections 18 to 21 and deals with enforcement matters.

Section 18 defines the contraventions relevant to this Bill.

 Section 19 provides the Commission with the power to authorise an investigation to be carried out.

The Commission can appoint Authorised Officers to carry out the investigation on its behalf.

Section 20 provides for prosecution for serious offences under the legislation and the imposition of penalties for those offences.

Section 21 establishes that the Commission may serve fixed payment notices where an offence has been committed under section 20(1) in relation to the late filing of returns. A fixed payment notice will state the amount (€200), the payment method and payment date. Where payment is made within the timeframe Court proceedings will not be initiated.

Part 5 contains Sections 22 to 26 and covers miscellaneous and supplementary issues.

Section 22 provides for certain designated public officials (Ministers, Ministers of State, special advisers, and on commencement Secretaries General and Assistant Secretaries in the civil service and equivalent grades in local authorities) to apply to the Commission for approval to carry out lobbying activities in an area that might cause a conflict of interest as a result of their former role in public employment, within one year of ceasing to be a designated public official.

The model proposed focuses on the particular activities likely to present a conflict of interest rather that imposing a blanket ban on the take up of employment. This approach allows the Commission to permit for example the take up of employment but to impose conditions or refuse to give consent.

Section 23 provides for appeals of decisions made by the Commission. It establishes that the Minister can appoint a panel of independent appeal officers. Appeals may be made in relation to decisions made under section 10(5) relating to inaccurate or misleading information, section 14 relating to delayed publication or section 22 relating to post-term employment applications.

Section 24 establishes that a decision of the appeal officer may be appealed to the High Court on a point of law.

 Section 25 provides for an annual report to be compiled by the Commission. It sets out the types of information to be reported on and provides for the report to be laid before each House of the Oireachtas within 6 months of the end of the relevant year.

Section 26 makes amendments to the Ethics in Public Office Act 1995 to provide, as appropriate, for changes to the functions of the Commission in relation to its new role as Lobbying Registrar.

The consultation process has demonstrated the intricacy of the issues and the essential culture change arising in relation to the introduction of regulation in this area for the first time. A  correct balance needs to be achieved between the need for maximum transparency in public policy making and the need to avoid unnecessary administrative burden on those sectors which interact with Government. The Bill therefore proposes review of the legislation 12 months after commencement in light of experience with implementation of the regulatory arrangements.

Likely timeframe for register going live:

In terms of timelines, once the Bill has passed into law, a period of time will be required prior to commencement of the legislation to enable development of the IT and  information systems which will support the registration process.  An Advisory Group has been established composed of relevant experts and key stakeholders who are in a position to provide information and guidance that will assist in the smooth implementation of the legislation. All going according to plan, commencement of the Act should take place in mid-summer 2015.

Transpareny International Comments

 The register alone is not the solution to the problems citizens face when policy-makers, politicians and regulators allow themselves to be co-opted or ‘captured’ by powerful vested interests. The planned register is just one reform measure among others that are needed to safeguard against lobbying risks, including undue or improper influence and abuse of power.
 

TI proposes a range of reforms which are aimed at promoting integrity among political decision-makers and ensuring more openness, plurality and contestability in policy-making. These include:

1. A long-overdue reform of the unduly complex and blatantly ineffective laws and codes regulating ethical standards in public life, accompanied by proper training for officials and elected representatives.
2. Robust measures to control the ‘revolving door’ between public and private life which pose particular risks of conflicts of interest. TI recommends a mandatory two year ‘cooling-off’ period for senior public officials at both local and national level to be overseen by a well-resourced and appropriately powerful oversight body. The Bill introduces a one year focused cooling-off period to prevent former public officials from lobbying their former colleagues. However, it is not clear how this would be policed in practice.
3. Clear rules for expert and advisory groups to allow proper scrutiny of their work and ensure balanced composition and stakeholder diversity. These sorts of groups can exert significant influence over public policy through what is effectively a form of lobbying from the inside. The Bill provides for a transparency code for such groups established by a Minister or a public body. TI  recommends that there should be open calls for nominations of such groups using the Public Appointments Service, and that lobbyists and corporate executives should be prohibited from sitting on them in their personal capacities.
4. Additional proactive transparency measures including the online publication of declarations of interest by elected and senior appointed officials and the introduction of a ‘legislative footprint’ to allow the public to see the input of groups and individuals into shaping laws.

As for the register itself, on paper at least, Ireland’s planned regime is more comprehensive than those that currently exist in six of the 19 countries (Slovenia, Lithuania, Austria, UK, Poland and France) that have been examined as part of TI's  current research project in this area.
In several important ways, Ireland’s proposed register gets it right where other countries have not. For one, the planned Irish register is mandatory, rather than voluntary. Individuals and organisations that lobby must register with the Standards in Public Office Commission (SIPO) and file returns three times a year. Secondly, the Bill goes beyond the activities of professional lobbyists to also include lobbying by a range of interest groups including trade unions, charities, non-profits and representative bodies.
 

The Registration of Lobbying Bill 2014 takes an ‘incremental approach’ to the amount of lobbying activity that will be captured in the register over time. So, at the start, the register will capture information about lobbying of senior decision-makers at national and local level, including Ministers, Ministers of State, and special advisers, as well as TDs and Senators. At government department level, lobbying of officials at the rank of Principal Officer and below will not have to be captured on the register.
 

TI Ireland believes that the planned regime could be strengthened in several key respects. In particular, TI  would like to see lobbyists being required to disclose financial data on sources of client or donor as well as paid or unpaid activities undertaken on behalf of political parties, elected officials and election candidates. This would allow the public to better understand how money and political connections influence public policy. TI would also like to see the register designed so that lobbyists can upload to it documents they have shared with lobbying targets. This would truly enhance its utility as a go-to portal that would allow citizens and others to evaluate and counter arguments put forward by lobbyists and to track their influence.
 

TI also recommends that SIPO be given explicit powers to verify lobbying returns, receive complaints from the public and ‘name and shame’ those who contravene the law. While SIPO currently has extensive powers to investigate possible breaches of lobbyists’ reporting requirements, it is unclear exactly how – in the absence of a public controversy – these would be triggered.
 

On a more general note, TI has concerns about some of the listed exemptions in the Bill – communications which do not have to be disclosed as they are not considered as lobbying. There is a real risk that if the register captures only a partial picture of lobbyists’ policy inputs on any particular issue, it will give an inaccurate and distorted impression of how policy is actually influenced. There is a fine balance to be struck in regulating in this area: a register must ensure that there is appropriate transparency without creating excessive bureaucracy or impinging on the democratic right of citizens to interact with law makers.

The Bill itself requires the Minister to undertake a review of the legislation one year after it comes into force and subsequently at three years intervals. According to an official policy note, this review will provide an opportunity to ensure that the registration exemptions in the Bill do not act as a conduit for unregulated or ‘secretive’ lobbying lacking in transparency. This iterative approach makes sense and allows time for the new regime to bed down before expanding it. However, the fact that there is provision for inbuilt reviews of the operation of the law does not mean that any effort should be spared ahead of its enactment to ensure it is as water-tight and comprehensive as possible. If the new regime is to achieve any meaningful change, it is vitally important that it is not allowed to become mere window dressing.