Ms Elaine Cassidy:

SIPO is tasked with the oversight of the legislation that underpins the State's ethics framework, specifically in the areas of ethics in public office, political financing and lobbying regulation. This committee is, of course, well aware of the provisions of the Regulation of Lobbying Act and SIPO's recommendations for reform of the Act because it recently completed its scrutiny of the Regulation of Lobbying (Amendment) Bill 2020. I have no doubt that scrutiny will be very helpful to the committee when it is examining the provisions of this 2022 amendment Bill.

The most commonly encountered provisions of the Regulation of Lobbying Act are those regulating people and bodies that wish to carry out lobbying activities. These provisions are not aimed at prevented lobbying but at ensuring it is transparent. To this end, those who carry out lobbying activities or intend to do so are required to register online with the commission, which maintains the register of lobbying at lobbying.ie. Once registered, there is a requirement to submit online returns three times per year. The vast majority of the commission’s communication with registered persons operates through this website. The portal was developed closely with the Department of Public Expenditure and Reform while the Regulation of Lobbying Act was being drafted, and it was intended as a best-in-class example of using digital innovation to provide a more effective service to the public. This model works very well in practice. A 2021 survey of users showed very high levels of satisfaction with it.

In light of the commission’s digital model, compliance with the obligations to register and make returns under the Act is not an onerous task. This is reflected in the high number of registrants. There were more than 2,200 registered lobbyists at the end of last year, and we received a very high number of returns as well – in excess of 11,500 last year.

To deal with non-compliance, the Regulation of Lobbying Act provides for six relevant contraventions, which attract powers of investigation for the commission and are criminal offences. These include failure to register or failure to make a return in time or not at all, as well as compliance with the commission’s regulatory powers. Fixed payment notices of €200 are available to the commission in lieu of prosecution in relation to all criminal offences under the Act. In practice, by far the most common contravention is a submission of a late return. The vast majority of these contraventions are dealt with effectively by fixed payment noticed, issued and paid through the person’s online account. However, in relative terms, this contravention is not common. To give the committee a sense of how well the compliance is working, in respect of those 11,500 returns last year that I mentioned, fewer than 400 fixed payment notices were issued. This is a very low rate of non-compliance.

The Regulation of Lobbying Act also provides for post-employment restrictions for certain designated public officials, DPOs, once they leave office. These provisions prevent Ministers, advisers and senior civil servants from lobbying or being employed to lobby by their former public body or colleagues in the year after their departure, unless they have the consent of the commission. Since 2015, the commission has received 24 such applications. However, contravention of these restrictions does not attract any investigatory powers for the commission and it is not a criminal offence, unlike the other obligations in the Act.

The commission welcomes the publication of the general scheme, which implements many of the reforms we recommended. The commission also welcomes the collaborative and constructive way in which Department of Public Expenditure and Reform officials have continued to work with us in the commission’s secretariat on the legislation. We share the same goal of achieving a robust and effective lobbying regime.

On the provisions on lobbying registrations, the provisions of the general scheme make welcome changes that will improve both transparency and the practical operation of the regime. The general scheme amends the definition of lobbying in four ways and follows the recommendations of the commission. Including the management and direction of communications on development or zoning of land, as well as the making of communications directly, allows organisations as well as individuals to be registered. The extension of the definition to include business representative bodies and coalitions of business interests that do not have employees will close a loophole identified by the commission. On lobbying by employers and advocacy groups, removing the requirement that the officeholder communicating be paid also closes a loophole identified by the commission. Removing communications by a political party to its members creates an exception to the need for transparency, which the commission believes is justified but needs to be clearer in the legislation.

The general scheme also creates an anti-avoidance contravention, enabling the commission to investigate and prosecute action that is intended to circumvent obligations under the Act, for example, destroying records or temporarily laying off employees simply to fall below the threshold while the lobbying activity is happening.

The general scheme also makes technical changes in relation to people who have temporarily ceased lobbying, providing a pragmatic mechanism to deactivate and reactivate the registration. It ensures that the address on the register properly reflects where the lobbying is carried out.

On the post-employment restrictions under the Act, the general scheme also implements some of the commission’s recommendations. Contravening section 22 will become a relevant contravention. This means that the powers of investigations apply, the process for seeking the consent of the commission will be specified in greater detail and there will be obligations on public service bodies to notify their DPOs of their duties and notify the commission if those officials leave their posts. The commission welcomes these provisions.

However, unlike the other obligations set out in the Lobbying Act, contravening section 22 is not proposed to be a criminal offence under the general scheme. Instead, it would be subject to a new civil and administrative sanctions regime to be administered by the commission, with sanctions to include a monetary penalty of up to €25,000. The commission has carefully considered the Government's proposal. The commission recognises that civil and administrative sanctions are becoming a feature of regulation and acknowledges the many policy advantages with this approach. However, with regard to contraventions of the Lobbying Act, the proposed civil and administrative sanctions regime would give rise to significant operational challenges for the commission and would impose unnecessary burdens on the four commissioners who also hold other demanding public service positions. The commission's view is that it would be more appropriate to maintain a single system of criminal sanctions for all contraventions under the Lobbying Act, with fixed payment notices available as appropriate. As I mentioned earlier, the fixed payment notice system operates very effectively in practice in respect of the other contraventions of the Act. Accordingly, the commission recommends that this proposal is reconsidered and that contravention of section 22(1) should be a criminal offence in line with the treatment of all the other offences under the Lobbying Act.

As the committee will be aware from its scrutiny of the 2020 Bill, not all of the commission's other recommendations are addressed in the general scheme. The commission is disappointed when its recommendations are not taken on board, but we welcome the general scheme. We will continue to work with the Department to ensure that the lobbying regulation is as robust as possible. The commission is pleased to assist the committee and thanks it for its interest in our work. I and my colleagues, Ms Drudy and Mr. McKevitt, are available to answer the members' questions.