The introduction of the Regulation of Lobbying (Amendment) Bill 2022 (the “Bill”) has highlighted the importance of transparency in the lobbying process.
The need for transparency was also shown in the recent discussions on the ‘Uber Files’. In this article we discuss the key lobbying provisions.
Lobbying is an important democratic process which gives individuals and organisations the opportunity to express their views on public policy and public services to their government. The most recent return deadline under the Regulation of Lobbying Act 2015 (the “2015 Act”) was 21 September 2022. On 22 September 2022, Michael McGrath, Minister for Public Expenditure and Reform, published the Bill.
- Key provisions of the Regulation of Lobbying Act 2015
The 2015 Act currently governs lobbying in Ireland and the 2022 Bill introduces several key changes to strengthen the 2015 Act. The main provisions of the 2015 Act are:
- It established the official register of lobbying, a mandatory log which requires individuals and organisations lobbying designated public officials ("DPO"s) to report on their lobbying activities every four months. Examples of DPOs include government ministers, TDs, senators, members of local authorities etc.
- The Standards in Public Office Commission (“SIPO”) was appointed as lobbying regulator. SIPO's role is to provide transparency on who is lobbying whom and about what. The 2015 Act also gave SIPO powers to investigate and impose fixed penalties for certain offences.
- It provides for a code of conduct for individuals or organisations carrying out lobbying activities. It introduced a ‘cooling off’ period for DPOs where they must refrain from lobbying activities for 1 year after leaving their employment/office. This cooling off provision is of particular importance in managing the perception of gamekeepers turning poacher.
- Am I carrying out lobbying activities?
An individual or organisation may be within the scope of the 2015 Act if they are communicating, either directly or indirectly, with a DPO about a relevant matter and the individual or organisation:
- has more than 10 employees;
- are a representative body with at least one employee;
- are an advocacy body with at least one employee;
- are a third party who is paid to communicate on behalf of a client; or
- are any individual or organisation who is communicating about the development or zoning of land.
- How do I register?
Registration must be completed after the individual or organisation’s first communication with a DPO. An account can be created on Lobbying.ie.
- What are offences under the 2015 Act?
- Failing to register as a lobbyist;
- Failing to make a return by the deadline;
- Providing SIPO with information you know to be inaccurate or misleading;
- Failing to co-operate with an officer who is investigating possible contraventions;
- Obstructing an investigation.
As matters stand committing an offence under the 2015 Act could lead to a fine or imprisonment of up to two years.
- What are the proposed changes under the new Bill and how will they affect me?
The Bill introduces several amendments of note to include:
- The definition of lobbying is extended and is intended to capture all interested parties involved in the development and zoning of land.
- The definition of lobbying is also extended to include Business Representative Bodies or Coalitions of Business Interests regardless of the number or status of employees.
- The list of exempted communications is expanded and the Bill provides that communications made by a political party to its members, who are DPOs, only in their capacity as members of the party, is an exempted communication and will not be regarded as lobbying.
- The Bill introduces a new anti-avoidance offence to capture actions taken expressly by a person seeking to avoid their obligations under the 2015 Act to register or submit a return of lobbying activities. Examples of such avoidance tactics include hiding an organisation’s role in lobbying, creating a separate entity to avoid obligations to register, hiding evidence of managing or directing the making of lobbying activities and hiding evidence of payment for lobbying activities.
- SIPO will be entitled to carry out an investigation into any person who has not complied with the cooling off provisions.
- The Bill enhances enforcement powers around compliance with the Act, with the introduction of the system of administrative sanctions and the ability to impose minor and major sanctions. These new administrative sanctions will be imposed on DPOs who breach restrictions on post term employment as a lobbyist or individuals who avoid their obligations to register / submit lobbying returns.
- Following an investigation, SIPO will be entitled to impose minor or major sanctions. A minor sanction includes giving advice, a reprimand, a caution, or a combination of all three.
- A major sanction is (i) a fine of up €25,000, (ii) a ban on registering on the lobbying register for up to 2 years, (iii) a ban on making a return, or having a return made for up to 2 years, or (iv) a combination of all three. Where SIPO imposes a major sanction, it must be confirmed by the Circuit Court. A major sanction may only be imposed where a person intentionally fails to register as a lobbyist, fails to make a return by the deadline, or breaches the post-employment cooling-off period.
- The Bill introduces an obligation on all public service bodies that employ relevant DPOs to ensure that the DPOs are aware of their obligations under the Act both when they commence employment and on leaving employment. The public body must notify SIPO as soon as is possible when a DPO is departing from their position.
- The Bill provides that SIPO must publish a code for authorised officers in relation to investigations and for itself in relation to the new system of administrative sanctions. It may also make regulations having regard to the need for fairness in the conduct of such investigations and proceedings, in particular the need to address conflicts of interest which may arise.
By providing for stronger penalties and granting wider investigative powers to SIPO it is hoped that the introduction of the Bill is a step in the right direction for a more transparent lobbying process in Ireland.
The next return deadline is 21 January 2023 for all returns due between 1 September 2022 and 31 December 2022. We will continue to monitor developments and we will provide a further update once the new Bill is enacted.