Well publicised scandals within the last ten years involving the interactions between private organisations and individuals with public bodies have lead to a public outcry for increased transparency in how public bodies conduct their business to ensure that private interests do not unduly influence the shaping of public policy and the operation of public bodies.
One of the responses to this outcry is the Regulation of Lobbying Act 2015 (‘the Act’) which came into operation on the 1st September 2015 and provides for the establishment of a publicly accessible Register of Lobbying (‘the Register’). Any person or organisation falling within the scope of the Act and carrying out ‘lobbying activities’ is required to register as a lobbyist and submit returns of their lobbying activities to the Register every four months. The Register is maintained by the Standards in Public Office Commission (‘the Commission’) and can be accessed by the public through the website www.lobbying.ie.
The Act applies to a broad range of ‘persons’ and covers a wide range of communications with specified public officials and public bodies. Whilst professional lobbyists and organisations who engage in advocacy will certainly fall within the scope of the Act, other persons or organisations who communicate with public officials or public bodies may well come within the scope of the Act and it is vital therefore that all individuals and organisations, whatever sector they may operate in, familiarise themselves with the legislation and assess whether their organisation and their activities or communications fall within the scope of the Act.
Scope of the Act
It is important at the outset to consider the key definitions set out in the Act.
‘Lobbying activities’ – Section 5(1) and (2) of the Act provide that a person is carrying on lobbying activities if they make, manage or direct the making of any relevant communications on their own behalf or on behalf of another person in return for payment if that person:
(a) has more than 10 full time employees and the relevant communications are made on that persons behalf;
(b) the person has one or more full time employees and is a body which exists primarily to represent the interests of its members and the relevant communications are made on behalf of any of the members; or
(c) the person has one or more full time employees and is a body which exists primarily to take up particular issues and the relevant communications are made in the (e) furtherance of any of those issues.
A lobbying activity also includes where a person makes any relevant communications about the development or zoning of land under the Planning and Development Acts 2000 to 2014 (except where that communication relates to their principal private residence).
‘Relevant communication’ – Section 5(4) of the Act defines a relevant communication as a communication made personally (either directly or indirectly) to a designated public official in relation to a relevant matter. It is important to note that communications can be written or oral, however formal or informal the setting. Section 5(5) however sets out a list of excepted communications which fall outside the scope of the Act and include,s for example, communications dealing with requests for factual information, communications requested by a public body and communications made by an employee of a public body.
‘Relevant matter’ – means any matter relating to:
(a) the initiation, development or modification of any public policy or of any public programme;
(b) the preparation or amendment of an enactment; or
(c) the award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds,
apart from any matter relating only to the implementation of any such policy, programme, enactment or award or of a technical nature.
‘Designated public officials’ – Section 6 sets out a list of those considered to be designated public officials and provides for the expansion of this list by the Minister. Statutory Instrument 367 of 2015 which came into operation on the 1st September 2015 sets out a further extensive list of public officials in various government departments and public service bodies such as the Courts Service, Revenue Commissioners, Insolvency Service and the Valuation Office who are considered to fall within the definition of a designated public official.
Registering as a lobbyist
Section 8 provides that a person shall not carry on lobbying activities unless they have registered as a lobbyist with the Register. It is permissible however to commence and carry out lobbying activities prior to registration, provided that registration takes place not later than 21 days after the end of the relevant four month period within which the person commences lobbying.
A lobbyist is required to make returns not later than 21 days after the end of each relevant four month period. For example for the period commencing 1st September 2015 and concluding 31st December 2015, returns must be made by the 21st January 2016.
A return must state:
(a) on whose behalf the communication was made,
(b) the designated public official to whom the communication was made,
(c) the subject matter of the communication and the result it was intended to secure,
(d) the type and extent of the lobbying activities carried on,
(e) the name of the individual with primary responsibility for carrying on the lobbying activities,
(f) the name of each person who is or has been a designated public official employed by or providing services to the registered person and who was engaged in carrying on lobbying activities,
(g) any other information as may be prescribed.
The actual communication itself does not have to be submitted to the Register.
Where a person fails to make a return, provides inaccurate or misleading information or otherwise breaches the Act, the Standards in Public Office Commission can carry out an investigation of the matter.
For breaches of the Act, other than for making a late return, a person is guilty of an offence and liable on summary conviction to a Class C fine or on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both. The Act allows for a defence in such proceedings that the person took all reasonable steps to avoid the commission of an offence.
Making a late return is an offence and a person is liable on summary conviction to a class C fine. Before proceeding to prosecution the Act provides that the Commission may issue a fixed payment notice in the sum of €200.00, payment of which will prevent initiation of a prosecution. Given the infancy of the Act it remains to be seen whether the Commission will engage in the issuing of fixed payment notice for late returns or proceed straight to prosecution.
Guidance in relation to the Act
The Act provides for the publication of a Transparency Code, a code of conduct and further guidance to assist public bodies and persons carrying out lobbying activities and to promote awareness and understanding of the Act.
Accessing the Register
Registration and submission of returns can be done through the website www.lobbying.ie which also contains further information and guidance for persons and organisations in relation to the Act and how to assess whether an organisation and their communications fall within the scope of the Act. The Register is also available through this website for public search.
Whilst the Act may be seen as a welcome development from a public policy perspective, it will undoubtedly be perceived by many organisation as administrative burden and indeed perhaps commercially damaging to what they might consider their private business affairs. There is a provision to apply for delayed publication of a return where it may be commercially sensitive however this is at the discretion of the Commission.
It is interesting to note that at the date of writing 447 organisations or individuals have registered as lobbyists with a broad spectrum of individuals and organisations making up that number from financial institutions to charitable organisations to private individuals. To date just 15 returns have been registered however the crucial date in this regard will be the 21st January 2016 to get some indication of the short term success in promoting awareness of the Register and compliance with the legal obligations to register and make returns.
For further information on the Regulation of Lobbying Act 2015, please contact Claire Colfer.