knowledge | 30 September 2022 |
Lobbying laws to be strengthened
The Regulation of Lobbying (Amendment) Bill 2022 has been published. The aim of the legislation is to further strengthen Ireland’s lobbying laws to ensure that they remain up to date and fit for purpose.
The Regulation of Lobbying Act 2015 (“Principal Act”) established a web-based register of lobbying to make information available to the public on the identity of those communicating with Government and designated civil and public officials (“DPOs”) on certain public policy matters. The register tells us who is lobbying whom and about what. The register is administered by the Standards in Public Office Commission (“SIPO”). Registered persons must make regular returns to SIPO setting out details of their lobbying activities.
When enacted, the Regulation of Lobbying (Amendment) Bill 2022 will amend and extend the Principal Act. The Bill sets out a range of changes including those discussed below.
Carrying on lobbying activities
Section 5 of the Principal Act deals with circumstances in which a person will be considered to carry out lobbying activities. There are a number of amendments here.
First, the definition of lobbying is extended in relation to the development or zoning of land. It now includes the managing and directing of relevant communications as well as the making of such communications. This follows a recommendation from SIPO designed to deal with certain practicalities around campaigns organised by grass roots organisations or residents’ associations.
Section 5 is also extended to bring into scope in certain circumstances, informal business groups without employees, who are formed primarily to represent the interests of their members or to take up specific issues. Currently, SIPO’s experience is that the activities of some such representative groups are not captured by the legislation even though the lobbying of their constituent members is within scope. Under other amendments to the Principal Act, details of the membership of these groups will also have to be provided on registration and in returns.
Another perceived gap in the Principal Act will also be closed off. Under section 5 currently, where an office holder makes a relevant communication on behalf of an organisation that falls within the scope of the Act, it will not be a lobbying activity unless the officer holder is remunerated for their position. This requirement is removed. This addresses an issue identified by SIPO whereby bodies have fallen outside scope as the lobbying activities were carried out by non-remunerated board members or directors rather than paid employees.
Finally, the list of excepted communications is expanded. Excepted communications are communications that are not considered to be lobbying. These will now include a communication by a political party to its members who are DPOs and which are made exclusively in their capacity as members of the political party concerned. This will formalise the existing practice based on guidance issued by SIPO.
Amendments around registration
Section 8 of the Principal Act deals with the requirement to register if you are carrying on a lobbying activity. It will be amended to provide for a prohibition on registered persons from lobbying where they have notified SIPO that they have ceased to lobby.
The next amendment is to section 11 which in its current form allows a registered person who has permanently ceased lobbying to notify SIPO of that fact. That person will then no longer have to submit lobbying returns. However, as things stand, a registered person cannot step away from this requirement on a temporary basis if, for example, the issue on which they lobbied is resolved but the person considers that they may wish to lobby again in the future. The Principal Act will be amended to introduce this flexibility.
There is also a new requirement to promptly update SIPO if registration details change.
In the context of enforcement, section 18 sets out a number of “relevant contraventions”. This section will be amended to add to this list. New relevant contraventions will include carrying on lobbying activities while a registration has been marked as having ceased; taking any action with the purpose of avoiding obligations around registration or returns (anti-avoidance clause); and failing to comply with the cooling-off period requirements of section 22.
SIPO has recommended that an anti-avoidance clause be added to the Principal Act. This should capture deliberate action taken by a person to avoid their obligations to register or submit a return of lobbying activities. This could include hiding an organisations 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.
Restrictions on post-term employment as lobbyist
Under section 22 of the Act, certain DPOs must adhere to a one year cooling-off period, during which they cannot be involved in specific lobbying activities without SIPO’s prior consent.
This section will be strengthened to now provide that where conditions are attached to any such consent, the relevant DPOs must adhere to those conditions. It will also set out how SIPO should deal with applications for consent.
Public service bodies will now be obliged to inform each relevant DPO in their organisation of their obligations under the legislation as regards applications for consent, both when the person takes up a position in the public service body and leaves such a position. The aim here is to improve compliance with section 22. In addition, as soon as possible after a public service body becomes aware that a relevant DPO is to leave the organisation, that body must provide SIPO with certain details relating to the person concerned.
Significantly, the Principal Act will be amended to introduce a new regime for the imposition of administrative sanctions on former relevant DPOs who breach restrictions on post-term employment as a lobbyist. Administrative sanctions will also be available against persons who avoid or circumvent their obligations to register and submit lobbying returns.1
Following an investigation, SIPO will be empowered to impose minor or major sanctions. The minor sanctions will include any combination of advice, caution or reprimand. The major sanctions will include a monetary penalty of up to €25,000 or a prohibition from lobbying for up to 2 years or both. There will be an appeal to the Circuit Court with a further appeal to the High Court on a point of law. A major sanction will also be subject to confirmation by the Circuit Court. New rules are also set out in relation to the applicable procedures before SIPO and the court and as to the calculation of appropriate financial sanctions.
Code of Conduct
Finally, the Principal Act is amended to provide that SIPO must publish a code of conduct for authorised officers in relation to investigations and for itself in relation to the new system of administrative sanctions. It may also make regulations here 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.
- The latter will also be an offence under the Principal Act though a person will not be the subject of both an administrative sanction and a criminal penalty for a contravention here.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.