knowledge | 29 July 2016 |
Updates on the Lobbying Act
Compliance with the regulation of lobbying will become a more serious matter on 1 January 2017 once the enforcement provisions start to apply. While most of the Regulation of Lobbying Act 2015 (the “Lobbying Act”) has been in force since 1 September 2015, the application of the enforcement provisions was delayed so as to give those affected by the Act some time to familiarise themselves with the new requirements. This bedding-in period is set to come to an end following the publication of the Regulation of Lobbying Act 2015 (Commencement) Order 2016.
New Regulations are also due to enter into force over the coming months regarding fixed payments for late filing and the extension of the range of public officials who are designated public officials (“DPOs”) for the purposes of the Lobbying Act.
The Standards in Public Office Commission (“Commission”) published its first annual report under the Lobbying Act, on 28 June 2016, covering its activities in administering the Act for the 2015 reporting year, up to and including 21 January 2016.
Before the Lobbying Act, lobbying was not regulated in Ireland. The Act itself represents an unprecedented attempt in Irish law to determine who is lobbying whom and about what. Essentially it provides for the establishment of a public Register of Lobbying and requires those carrying out “lobbying activities” to register and to supply certain information regarding those activities for inclusion in the Register. See our related briefings here, here and here.
For the first year of the Lobbying Act it was decided to focus on promoting knowledge and understanding of its requirements, rather than sanctioning breaches. According to Commission figures, since 1 September 2015 more than 1,300 persons and organisations have registered and more than 4,500 returns have been published on the Register. The bedding-in period was due to expire on 1 September 2016 but under the recently published Regulations, the enforcement provisions of the Lobbying Act will apply from 1 January 2017, giving an additional four months’ bedding-in period to affected persons.
Part IV of the Lobbying Act, which deals with enforcement, provides the Commission with the authority to investigate and prosecute ‘relevant’ contraventions. These include failing to register as a lobbyist when carrying out lobbying activities, failing to make a lobbying return and providing the Commission with any information known to be inaccurate or misleading. It is a defence for a person charged with an offence to prove that the person took all reasonable steps to avoid the commission of the offence.
Part IV also provides for a form of derivative managerial liability whereby an officer of a company will commit an offence where the company commits an offence, and the offence is provided to have been committed with the officer’s consent or connivance.
With the exception of the offence of making a late return, offences may be prosecuted summarily or on indictment. A summary conviction may result in a fine while a conviction on indictment is punishable by a fine and/or up to two years in prison.
The offence of making a late return may be prosecuted summarily. However, the Commission also has the option of serving a fixed payment notice on the person. If the fixed payment is paid to the Commission within 21 days of the date of the notice, the person will not be prosecuted for the offence. The fixed payment is €200. The Regulation of Lobbying Act 2015 (Fixed Payment Notice) Regulations 2016 set out the prescribed form of a Fixed Payment Notice.
Designated Public Officials (DPOs)
The Lobbying Act focuses on lobbying which involves communicating with a “designated public official”. The Act lists a number of DPOs but also empowers the Minister for Public Expenditure and Reform (“Minister”) to designate further public servants, officeholders or persons as a DPO. The Minister first exercised this power with the adoption of the Regulation of Lobbying Act 2015 (Designated Public Officials) Regulations 2015 which prescribe a number of public servants in specified public service bodies as DPOs. The Regulation of Lobbying Act 2015 (Designated Public Officials) Regulations 2016 prescribe one further category of public servant as a DPO, namely a public servant in Cork County Council, in a position of Divisional Manager. They come into operation on 1 September 2016. We understand that it is intended to broaden the range of officeholders in the civil service who are DPOs to include principal officers and that regulations to this effect will be published soon.
Annual Report 2015
The Annual Report covers the Commission’s activities in administering the Lobbying Act for the 2015 reporting year. It includes a review of the Commission’s preparations for the Lobbying Act’s commencement and an overview of sample key issues encountered throughout the year. These issues include the following:
Lobbying outside of Ireland - The application of the Lobbying Act does not depend on where a relevant communication takes place. If a person within the scope of the legislation communicates with a DPO about a relevant matter, it is lobbying for the purposes of the Act regardless of where it takes place;
The registration of charities and the question of charitable status - There is no barrier to charities lobbying as long as the lobbying activity adheres to the provisions of the Charities Act, namely that it fits within the organisation’s primary objectives;
The method or venue of the communication - A relevant communication may be made formally or informally, including socially or by text or email. In certain cases, the use of social media will be lobbying. While generally a tweet directed at a broad audience would not be considered lobbying, a tweet sent to an individual DPO or which tags that DPO may be registrable lobbying;
Submissions to public consultations - A submission made as part of a public consultation process is not lobbying as long as it is published. This is the case even if the submission will not be published until after the lobbying returns’ deadline. In other words, if the public body has indicated that it plans to publish the submissions, there is no obligation to include the submission in a lobbying return;
Who initiates contact - If a DPO contacts someone who falls within the scope of the Lobbying Act and that person makes a relevant communication in response, the person will have to register as a lobbyist and submit a return; and
Client Confidentiality - Compliance with the Lobbying Act should not give rise to a breach of client confidentiality as the level of information given in a return should not require the disclosure of confidential information. Should such a situation arise, it would have to be assessed based on its particular facts.
The next returns on lobbying activity (including confirmation of no activity) are due on 21 September 2016, covering the return period 1 May – 31 August 2016. The Minister is required to commence a review of the Lobbying Act before 1 September next. In conducting the review, the Minister must consult with appropriate persons, including those carrying on lobbying activities. The Minister must report on the review’s findings and any conclusions to be drawn from those findings within six months, including possible amendments to the Lobbying Act.
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.