The Irish Government last month published the long anticipated Registration of Lobbying Bill which is aimed at providing transparency to the general public in relation to lobbying activities.
What is lobbying?
The Bill describes lobbying activities as the making of communications, either written or oral, personally (directly or indirectly) to a designated public official which are not exempted communications and which concern the initiation, development or modification of any public policy, the preparation of legislation, or the award of any grant, loan contract, licence etc involving public funds.
Lobbying activity is carried out by:-
- persons in the course of their business in return for payment by a client (in money or money's worth);
- an employer, or their agent or employee, on behalf of the employer, or
- any person about the development or zoning of land.
Certain communications are exempted such as normal communications between individuals and their public representatives in relation to their private affairs and communications by or on behalf of an employer with not more than 10 employees in relation to its affairs. Communications concerning planning matters relating to an individual's principal private residence are also exempt.
Other exempt matters include:-
- responses to requests for factual information or communications requested by a public service body and published by it. It is anticipated that this exemption would include circumstances where submissions are sought on foot of a public consultation process;
- communications made to a Minister or his department by a commercial state body in the ordinary course of business.
Who does it apply to?
The Bill covers the lobbying of Ministers, TDs, Senators, MEPs, local Councillors, special advisers, and designated public officials. The explanatory memorandum to the Bill suggests that 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. Each public body will have to maintain an up to date list of designated public officials.
Registration and returns
The Bill provides that a person shall not carry on lobbying activities unless registered and the Commission for Standards in Public Office (SIPO) shall maintain a public register of lobbyists. A registered person must make three returns per year setting out any lobbying activities. That return must include details such as
- if lobbying was done on behalf of a client - information about the client
- to whom the lobbying was made
- the subject matter of the communications and the results they were intended to secure,
- the name of the person with primary responsibility for carrying on the lobbying activities
- the name of any person who is or has been a designated public official employed by, or providing services to, the registered lobbyist.
An application can be made to SIPO for delayed publication of the material contained in the return if it could have a serious adverse effect on business interests or cause a material financial loss or seriously prejudice a person's competitive position.
Investigation, offences and penalties
Contraventions set out in the Bill include carrying on lobbying activities without being registered, failing to make a return, providing inaccurate or misleading information to SIPO and failing to comply with or obstructing an investigation.
SIPO can carry out an investigation where they believe there has been a contravention and can appoint an authorised officer to investigate. Authorised officers have extensive powers to demand information, explanations and documents and they also have powers of search and seizure. Documents which are covered by legal professional privilege do not have to be handed over to an authorised officer.
After the conclusion of an investigation the authorised officer shall give SIPO and the person under investigation a copy of the report stating the findings of the investigation together with the reasons for those findings.
The penalty for filing a late return, on summary conviction, is a class C fine (ie a maximum of €2,500) although the Bill does provide that SIPO may serve a fixed notice payment (for a sum of €200) for this contravention. Summary convictions for other offences under the Bill will give rise to a class C fine while conviction on indictment will lead to a fine (of up to €5,000) and/or imprisonment for a term not exceeding two years.
It shall be a defence for the person to prove that they took all reasonable steps to avoid the commission of the offence.
Offences by a company which are proved to have been committed with the consent or connivance of any person who, when the offence was committed, was a director, manager, secretary or other officer of the company, or a person purporting to act in such a capacity, that person, as well as the company, shall be guilty of an offence.
Conflicts of interest
The Bill provides that a person who has been a designated public official shall not carry on lobbying activities which involves any public service body with which they were connected for the year prior to the end of their public service employment. Neither should such public official be employed by, or provide services to, a person carrying on lobbying activities in such circumstances for a year after their employment ceases without the consent of SIPO.
The Bill will now work its way through the Oireachtas and there is likely to be considerable debate on the scope and parameters of the proposed legislation.