Oireachtas Joint and Select Committees
Wednesday, 13 October 2021
Joint Oireachtas Committee on Finance, Public Expenditure and Reform, and Taoiseach
General Scheme of the Regulation of Lobbying (Amendment) Bill 2020: Discussion
I welcome the members and viewers who may be watching these proceedings of the public session of the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, and the Taoiseach on television or on the Oireachtas TV channel.
The purpose of today's meeting is to begin a detailed scrutiny of the Regulation of Lobbying (Amendment) Bill 2020, which is a Private Members' Bill. Today's meeting will involve a split session. We will be joined first by Professor Gary Murphy, school of law and government, Dublin City University, DCU, and by Mr. John Devitt, CEO of Transparency International Ireland. We will joined later by members of the Standards in Public Office Commission for the second part of the meeting.
The format of this meeting is that witnesses will make some brief opening remarks and this will be followed by a question and answer session from the members. Members and all in attendance are asked to exercise personal responsibility in protecting themselves and others from the risk of contracting Covid-19. They are strongly advised to practise good hand hygiene and so on; they know the drill. I ask for their full co-operation on that.
I must advise witnesses of a notice on privilege. I wish to advise witnesses who are physically present or who give evidence from within the parliamentary precincts that they are protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with all such directions. There is no need to tell them this. They all know it. They could recite this notice backwards.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House, or any official by name or in such a way as to make him or her identifiable. I remind members who are attending remotely of the constitutional requirements that members must be physically present within the confines of the place in which Parliament has chosen to sit, namely, Leinster House. I invite Mr. Gary Murphy, who is very welcome to the meeting, to make his opening remarks.
Professor Gary Murphy:
I thank the Vice Chairman and his colleagues for their kind invitation to appear before the committee. I will not read my statement, which I forwarded to the committee earlier in the week. I would make one or two fundamental points. As far back as 2006, I was commissioned along with one of my colleagues, Dr. Raj Chari, to investigate the possibility of the Irish State putting in place regulations on lobbying, which over a decade later led to the Regulation of Lobbying Act under the last of the Fine Gael-Labour Governments. The implementation of that Act was seismic with respect to what it was trying to do, which was to make sure the architecture around probity in public life was strengthened. If we take that alongside the Ombudsman legislation and the Freedom of Information Act, the Regulation of Lobbying Act 2015, which covers pretty much the whole spectrum, it was a signal step forward for the Irish State, as I said in my statement.
It was worth mentioning that because we have had two general elections since that Act was implemented. Many of the members of this committee of this committee would have changed since 2015. We in the Irish State find ourselves part of a much wider arsenal of democracies, which have lobbying regulations. When I started out it was only the United States, Canada, the European Parliament and Germany, which had regulations, some of which were basically not worth the paper they were written on. The 2015 Act made a substantial difference to public life in Ireland, but it is not perfect. The regulator will speak later about difficulties she has had. I am of the view, as I said in my statement, that the 2020 supplemental Act, should be enacted in its entirety. I do not see any plausible reason for the State to resist the recommendations put forward by Deputy Pearse Doherty and Mairéad Farrell. More openness, accountability and transparency are better. As I said in my statement, the Irish State for too long operated covertly and in secrecy. It did not need to tell its citizens what it was doing in their names. I do not have to go through the examples and I deliberately did not do that in my statement. We know of public policy decisions taken in private which have spectacularly backfired on this State. I wrote a phrase the regulator uses on her website, namely, lobbying is about the public knowing "who is lobbying whom about what". That goes to the heart of it. This new Bill is important in that it strengthens the legislation with its additions in terms of that principle.
Regarding the cooling-off period which is a fundamental part of the Bill, I heard Deputy Doherty when he first mooted the idea of this new Bill speaking of extending that period from one year to two years. It was supposed to be two years in the Regulation of Lobbying Bill, but when the Bill became an Act, that period was reduced to one year. Internationally, two years is the minimum.
I have written two books about the regulation of lobbying and I have spent too long thinking about it and all the evidence points to a two-year minimum because of the revolving door. The regulator herself made this point in her last report and we saw it with a former Minister of State seeking legal advice before going to the regulator over a year ago. He then took up a position where he would have been a lobbyist for that group. That is just too short of a cooling-off period. The idea of a cooling-off period from the Oireachtas is that we do not have the perception that insiders are trading on access and in that context I am in favour of all the regulations.
There has been a lot of discussion about section 22 and it beggared belief when I read it the first time. Failure to comply with the section which dealt with the issue was not considered to be a relevant contravention of the Act. That was odd and I could not understand why the Department of Public Expenditure and Reform resisted that in the first place. I would strongly encourage that to happen. Regulators need teeth and Bills and Acts need teeth. There need to be sanctions for not obeying the law and in that context I am strongly in favour of all the proposals put forward in the Act. I am happy to answer any questions later.
Mr. John Devitt:
I thank the committee for inviting me to share my observations on this Bill on behalf of Transparency International Ireland. I should start by briefly explaining what interest we have in this issue, before moving on to some preliminary observations on the Bill and some broader recommendations that might further strengthen the Act and its implementation and operation.
In 2009, Transparency International Ireland identified the regulation of lobbying as one of six key recommendations aimed at preventing corruption arising from our first national integrity systems study. Since then, we have undertaken research and produced three publications on the topic, including an overview of voluntary lobbying standards and practice among public relations firms in Europe, and we published Responsible Lobbying: A Short Guide to Ethical Lobbying and Public Policy Engagement for Professionals, Executives and Activists.
Earlier this year, we looked at the disclosure practices of 30 of Ireland’s top companies across a range of indicators including responsible political engagement and found some companies showing leadership on this issue. However, it is important to note that most companies did not disclose a policy on responsible lobbying or political engagement and the highest score achieved on this dimension was 57%. Moreover, 28 out of 30 companies did not publish rules or policies dealing with revolving doors, namely the movement of staff from the public sector to companies or vice versa.
It would be churlish to not acknowledge some of the progress made since we began work on this issue. The 2015 Act in particular has regularised the practice, setting boundaries and standards of conduct that were not always clear. In doing so, it has raised public expectations of both lobbyists and policy-makers and I would speculate that the term "lobbyist" carries a degree more respectability than was the case before the Act was passed. Nonetheless, the Standards in Public Office Commission has recommended reforms, which have yet to be adopted, and a small number of cases appear to have undermined the reputation of the profession since 2015, both of which appear to have influenced the publication of this Bill. The only cases that I am aware of that stirred public controversy surrounded the movement of former senior advisers or public officials to roles in public relations firms or in business associations. I am unaware of any more serious compliance failures or offences committed since then. It is welcome therefore to see a provision in the Bill for an extension of the cooling-off period for officeholders moving to the private sector from one to two years. We also welcome the proposed requirement for a designated public official, DPO, to cease communicating with a lobbyist where he or she is aware that the person or body carrying on lobbying activities has failed to comply with the Act.
We agree with the sponsors of this Bill that the most effective way of encouraging compliance would be to deny those who refuse to comply with the Act the opportunity to lobby public officials, and in the same way to penalise those companies that hire public officials in contravention of statutory cooling-off periods. While the broad approach may be sound, we might suggest a small number of technical amendments that could avoid any potential confusion or unforeseen consequences which I am happy to address after these remarks. In addition, we would recommend providing the Commission with the power to impose financial penalties on those persons, including DPOs, who fail to follow a direction from the Commission to comply with the Act.
I should draw the committee’s attention to what we see as the primary goals of lobbying regulation. The first is to prevent trade in influence; the use of personal connections or intermediaries to secretly influence policy. The second is to improve the quality of public policy by allowing the public and policy-makers full sight of the information used to influence that policy and to determine whether the policy is in the public interest. If the Act is to meet its first purpose, there should be a requirement to disclose not just the source but the amounts of funding received or fees charged by lobbyists with the lobbying regulator. This would allow enforcement agencies, including the Commission and An Garda Síochána, to evaluate information that could assist with any future investigation into allegations of breaches of the Act or attempts to trade in influence, an offence created with the passage of the Criminal Justice (Corruption Offences) Act 2018. Without a disclosure requirement it is difficult to know who has paid what to an intermediary or whether he or she has done so lawfully, and it is equally difficult to determine whether anyone has sought to illegally influence policy. Such a requirement has been instrumental in detecting corruption or trade in influence in other jurisdictions.
The second purpose could be fulfilled without requiring an amendment to the Act. Instead, the online register could allow for much easier download and third-party analysis of data stored on the register. It could allow for lobbyists to voluntarily upload information or to provide live external links to those documents. It could also provide links to legislation moving through the Oireachtas or relevant information held by public bodies, such as rezoning decisions, on the website. This would make it easier for the public to access information shared with policy-makers in the course of lobbying. It would also help reduce the volume of freedom of information, FOI, requests and encourage others to be more open about their lobbying activities. It could also provide for a comprehensive and accessible legislative footprint that could simultaneously make the most of existing digital platforms and help make the legislative process more open and accountable. Time does not allow me to address the full scope of the Act or Bill but I am happy to answer any questions members might have.
I welcome Mr. Murphy and Mr. Devitt. The Regulation of Lobbying (Amendment) Bill 2020, which is sponsored by Deputy Mairéad Farrell and I was introduced by Sinn Féin to strengthen the lobbying regulations and close that revolving door between vested interests and Government. The witnesses sum up what is important in transparency where lobbying takes place. The interests of workers and families should be at the heart of Government and for too long we have had insiders and those with power and money able to influence Government decisions without public knowledge of same. That can have a corrosive effect on ordinary workers and families as they come out as the losers. This is an attempt to change that, to shed some light on areas where it has not been shed in the past and to strengthen the legislation that is in place.
I want to begin my asking Mr. Devitt a number of questions.
The legislation before us sponsored by Deputy Mairéad Farrell and I basically comes from standards in public office in the main. There are some additions to that but these are all recommendations, some of which go back as far as 2016 or 2019 to which the Department has responded on a number of occasions. However, it has ignored and refused to implement these recommendations. Is there anything in this Bill that is too onerous or too difficult to implement on DPOs or SIPO, or on those being lobbied?
Mr. John Devitt:
I only managed to read the Bill the last week so I will offer any more detailed comments in writing to the Deputy. I also speak as a registered lobbyist. I have found that generally speaking, the Bill is relatively easy to comply with for want of a better phrase. The information provided there is relatively comprehensive. If the Deputy has to ask me about any specific technical details related to this Bill, I might suggest that the wording in section 4 be tweaked to specify that where a lobbyist is failing to comply with the Act under proposed section 16(A)(1) that the DPO is required to cease any further communication. The current wording mentions "where a Designated Public Official is aware that a person or body carrying on lobbying activities has failed to comply with the registration of lobbying activities". I suggest that this wording be amended to "is failing to comply with the Act", such that those who employ a retired public official who is not in compliance with cooling-off periods is also captured by this section. Therefore, in essence, changing the tense from the present perfect to the present continuous would make it easier for the commission to enforce and would also afford the lobbyist an opportunity to comply with the Act. A minor contravention might be a failure to file a return on time. If a lobbyist refuses or declines to file a return, he or she will be considered to be in material breach of the Act and I would imagine that it would be relatively easy to determine that he or she is not in compliance with that particular provision. It would also mean that the failure to comply is an objective rather than a subjective test and that it is not open-ended. This would also deal with proposed section 16(A)(4) in respect of where a body has been guilty of a contravention. I suggest changing the wording of this to "is in contravention".
Guidance might be needed for the commission on determining the duration of the cessation. We would advise against leaving that open to any potential arbitrary decision making such that the commission has clear guidance on the length of time that the person is precluded from lobbying. I would imagine that statutory guidance or a statutory instrument may be required to help interpret certain provisions of this Bill unless they are provided for in primary legislation but, again, I am happy to come back to the Deputy on this point.
Professor Gary Murphy:
I think the answer to the Deputy's question is "No". There is nothing in these nine suggestions that is in any way onerous or too onerous. Clearly, as regards the budget yesterday, in an era where there are always scarce resources, things can be reasoned out of existence but there is nothing in any of these suggestions that I would say would cost the State an onerous amount. I would be favour of beefing up SIPO as a body. Independent regulators globally work and work well when they are fully resourced. Having looked quite carefully at this Bill, I do not see anything in it that is extraordinarily onerous. In fact, it builds on the success of the 2015 Act and, as I said in my opening remarks, the more openness this provides, particularly in terms of extending the definition of a DPO, the better. When this cropped up in the media a number of months ago, I did not quite understand the reticence of the Department. I would say the answer to the Deputy's question is "No".
I acknowledge Professor Murphy's teaching and writing for many years about the regulation of lobbying. He made an interesting point in his opening statement when he said that there are individuals at both Government and non-Government level who have still not come to terms with the lobbying regulation agenda and what it is trying to achieve and that this is letting Irish citizens know who is trying to influence their Government. Could Professor Murphy elaborate on that point?
Sections 6 and 7 deal with extending the period for two years. Professor Murphy mentioned the international evidence. All the literature suggests that this should be a minimum. Does he believe it should go beyond the two years we have included in the legislation? Section 6 will prevent an individual from circumventing the obligations under this Bill, which include the deletion of records, text messages and communications. Does Professor Murphy have any views regarding that?
Professor Gary Murphy:
When the Act was brought in in 2015, it was new and minor contraventions were practically inevitable. However, we have seen how a former senior Minister discussed an issue that came under his responsibility with a lobbyist and said it was a personal view. That cannot happen in a proper democracy where the Minister has responsibility for the issue in question. I cannot see how one can have private views regarding something one is in charge of publicly. That is what I was getting at in respect of the idea that some people have not quite got their heads around the regulatory framework. This is not extraordinarily onerous. The 2015 Act was not extraordinarily onerous. Mr. Devitt spoke about the possibility of finance being included - in other words, how much was spent on lobbying. That does not exist but it exists in other states.
Regarding the question about the cooling-off period, I visited the state of Washington 15 years ago. The cooling-off period there was five years. I gave a presentation to PRII where I mentioned this. You can imagine that the faces were aghast. That is a very long time - probably too long. A year is too short. I think two years is reasonable. The whole idea is to stop those who implement policy going back as lobbyists within a very short period of time to those implementing the policy.
That is why one year is simply too short. If it was anything over two years, issues could potentially arise with regard to individuals trying to make a living. As we know, there is a constitutional requirement in that regard. I believe two years is reasonable. Some of the states in the United States got into difficulties with the period being simply too long. Five years is an extraordinary amount of time. To the Deputy's final question, it is my view that the more information that is given to the regulator and ultimately the public by those who lobby, the better. I include text messages in that. That is where I stand. It goes to the heart of the principle. I do not believe any democrat or elected representative could have difficulty with the idea of those who act for the public having to be open to the public.
I thank the guests for coming before the committee this afternoon. I agree with Professor Murphy that more openness is better. Obviously, we have to be careful not to transform the nature and localism of Irish politics. I will ask Professor Murphy one question in that regard. The commission has indicated that one of the things it would like to see captured in legislation is lobbying by unpaid officeholders, directors of businesses and advocacy groups. In his opening statement, Professor Murphy spoke about the unusual localism of Irish politics. Would he be concerned about changing the manner in which politics operates if unpaid advocacy groups were required to register engagements with elected officials for the purposes of achieving their objectives?
Professor Gary Murphy:
No. I wrote that phrase very carefully. I have been teaching about the localism of Irish politics for a long time. Nobody working on the regulation of lobbying is trying to stop people going to elected representatives' clinics to make representations. That is not what this is about at all and it was not the case in 2015 either. I am in favour of voluntary lobbyists registering and allowing people the opportunity to see what they are lobbying for because it all goes to the heart of public policy. If we start drawing distinctions as to whose lobbying counts and must be registered and made public and whose does not, there is the potential for a slippery slope that would allow people to say they did not realise they had to register or make a disclosure. I do not believe it is too onerous, which is a point I made to Deputy Doherty. To reiterate, I believe the 2015 Act and this subsequent Bill get it right for the most part. When I wrote that report and gave some pro bonoadvice to the Department of Public Expenditure and Reform in the period from 2013 to 2015, the questions Deputy Jim O'Callaghan has just asked came up. I reiterate the point that we have a relatively small polity. It is not a matter of forcing people but of changing the mindset so that people know that, if they lobby, they register, their engagements get uploaded and that is the end. That is how I feel it should be. I hope that makes some sense.
I thank Professor Murphy for that. In fairness to Deputies Doherty and Mairéad Farrell, their Bill does not propose that unpaid advocacy work should fall within the definition of lobbying.
I will ask Mr. Devitt a question in respect of section 4 of the Bill. He has spoken about this briefly already. This section relates to the duties of designated public officials. One of the benefits of the legislation at present from the point of view of people such as Members of the Oireachtas and members of Government, who are designated public officials, is that it does not place an obligation on us. The nature of Irish politics is such that you meet people a lot. The advantage of the Act as it stands is that it is for the lobbyist to register their interests. Does Mr. Devitt have any concerns about what is contained within section 4 and the proposed new section 16A, which puts obligations on designated public officials and which makes it an offence for such officials not to carry out certain activities in certain circumstances?
Mr. John Devitt:
No, I do not have any concerns other than those I have already highlighted in respect of the wording. I believe it would be easier to enforce that particular provision if it was clear that it would only arise or be enforced where a lobbyist is in contravention of the Act. It would then be clear that, where someone is lobbying but has not registered or has failed to file a return, designated public officials, DPOs, should not engage with that person. This approach was taken by the European Commission some time ago when European Commissioners agreed not to meet with lobbyists who were not registered on the EU's transparency register, so it is an approach taken in other jurisdictions, most notably the institutions of the European Union.
I will address the issue of the potential burden posed by the regulation of lobbying by not-for-profit organisations, if I may. We have not found this particular Act particularly cumbersome but related legislation, the Electoral (Amendment) Act 2001, has posed enormous difficulties for the sector. This imposed restrictions on political parties but also imposed the same restrictions on what are known as third parties. Where organisations are in receipt of a donation of more than a given amount - I believe it is €100 or €200 - they are obliged to register as a third party with the Standards in Public Office Commission and are then subject to draconian restrictions on funding such that they are unable to receive more than €1,000 in any one year from any individual or any donations at all from overseas, including from overseas trusts and charitable organisations. This has placed a disproportionate and unforeseen burden on many organisations in the sector.
It has also resulted in a degree of confusion as to what triggers compliance with the Act. If a non-profit organisation is in receipt of donations to lobby for reform, it is unclear whether it has to register under the Act. A similar requirement is not placed on businesses that are lobbying, but this requirement is placed on organisations that receive charitable donations. As I have said, this has posed a particular challenge to the sector and could be addressed by making it clear that, where an organisation is compliant with the Regulation of Lobbying Act 2015, it does not also have to comply with the Electoral Acts 1992 to 1999, unless it is campaigning around an election or referendum.
Where do Professor Murphy and Mr. Devitt think we sit with regard to lobbying in this country? Does lobbying occupy a smaller position than it does in larger countries such as the UK or the United States? Is there anything unique about lobbying in the Irish system? Is it in any way anomalous when compared to what happens in other European countries?
Professor Gary Murphy:
When I was talking about this with public officials and Ministers a decade or so ago, I was very keen to suggest that we inculcate ourselves into the international position. Internationally, there is an idea that the public needs to know who is lobbying whom. I am of the view that the 2015 Act places the Irish State in the top echelons of states as regards regulatory systems.
It covers the full spectrum. There is a cooling-off period which could be longer. There is an independent regulator. It has some teeth, but I would argue it should have more and this Bill goes some way towards that. I believe the British system has grievous faults. The pass system in the European Parliament is difficult. It has become very contentious in the United States ideologically. Republicans are now strongly against any regulatory system while Democrats are for it. There was a much more bipartisan view up to the last decade. Washington state was a great exemplar. I mentioned the five years. That has all been gutted with the new Republican Administration in that state.
Some years ago, we prepared a table of where Ireland might stand and internationally we are pretty good. Adopting this Bill in its present format would further strengthen our reputation internationally and would be seen as an exemplar in the European Union of how importantly the State treats the idea that people should know about people who lobby. I believe we are in a good position. I am a strong supporter of the Act and a strong supporter of the amendments.
I thank the witnesses. I was very interested to read Professor Murphy's opening statement and to listen to both speakers give their views on the different questions. It is important that we are discussing this legislation today. Both witnesses have clearly outlined the importance of openness and transparency in lobbying, the role that the current Act plays and how it can be strengthened. As the witnesses know, this Bill would enact a number of the recommendations made by the Standards in Public Office Commission. Twice in recent years, in 2016 and in 2019, that body has made recommendations to strengthen the legislation but there was a decision not to implement them. Now we are having a review of this. Where do the witnesses believe the barriers were? Was it in the Department or was it an institutional barrier? These are quite clear and practical recommendations to simply strengthen the Act. Why do the witnesses believe they were not implemented?
Mr. John Devitt:
I can only speculate that reforms were not seen by the Department as necessary and that there was not any great political demand or momentum for reform. Many of the reforms are also technical in nature. Generally, policy like this is driven by a crisis or controversy. If we look back at the history of reform in Ireland from the 1990s, many of the most meaningful reforms came on foot of public controversies, tribunals of inquiry and the collapse of our financial system in 2008, which led to a raft of reforms, including the Protected Disclosures Act, the Regulation of Lobbying Act and reform of the Freedom of Information Act.
This Act should not be seen as a silver bullet or a panacea. It is not the one means by which we should or can open up government or policymaking to greater scrutiny. It is unfortunate that the Public Sector Standards Bill which was sitting on the Order Paper for almost three years stalled and then fell following the last general election. That would have been an opportunity to address some of the concerns and risks that this Bill will address. I would recommend, for example, a broader cooling-off period for designated public officials moving into the private sector and not just entering the lobbying profession where that appointment either poses a material or perceived conflict of interest and requires a designated public official to seek guidance and permission from the Standards in Public Office Commission before assuming a role which may pose a conflict of interest after retiring.
In much the same way these reforms should be seen as part of an ongoing process of reflection, review and reform of not just the Regulation of Lobbying Act but also of the Freedom of Information Act. It is important to see this in an holistic way aiming at making government more open and accountable. There is an opportunity to look at this in a strategic play with the forthcoming national plan for the Open Government Partnership. Ireland is expected to present a plan to the Open Government Partnership secretariat soon. This could be seen as one of a number of measures aimed at making the policymaking process more open.
Professor Gary Murphy:
The Department of Public Expenditure and Reform deserves great credit for driving this legislation through in 2015. The reality is that it was driven by what we call political entrepreneurship. The then Minister for Public Expenditure and Reform, Deputy Howlin, decided that this was something he wanted enacted. I suspect that the Department might have thought its job was done. As Mr. Devitt said, the reality is that things crop up and we need to react. Deputy Doherty's Bill comes at a very good time because we have had six years since the Act was initiated and a review is good. I suspect a mixture of that is involved in the decision not to proceed with what the commission suggested.
Professor Murphy made a very good point on the need to be able to react, which is what our Bill is doing. It is reacting and trying to strengthen the legislation. It is essential to have public confidence in political and public life. As Mr. Devitt said, this along with other Bills will seek to increase transparency and accountability.
I am interested in the witnesses' views in regard to the definition of lobbying itself. Obviously, there are four different ways that can be defined, namely, where people are communicating either directly or indirectly with a designated public official, DPO, where communication is about a relevant matter, where communication is not specifically exempted and where the person is considered to be in “one of the following” groups. The idea is that if I was lobbying a Minister on a relevant matter for some financial award but it was for somebody else, that would be considered lobbying. However, if I was doing it in regard to myself, that would not be considered lobbying. Do the witnesses think that definition needs to be strengthened or looked at? I would be interested in their thoughts on that.
Mr. John Devitt:
We recommended in 2014 that where an individual is in beneficial ownership or has a controlling stake in a company or an organisation, notwithstanding the fact they believe they are making representations on their own behalf, they should register that communication on the lobbying register, so it is not just a professional lobbyist or an employee of that company that is obliged to register. There will be circumstances where someone with a controlling stake, or controlling share ownership of a company, or beneficial ownership of a company, is making representations on public policy that affect their own financial interests or the interests of that company and, in those circumstances, we believe those communications should be registered.
Professor Gary Murphy:
I would agree with Mr. Devitt in that context. The Deputy’s question goes to the heart of what I was getting at with Deputy O'Callaghan. We need to be very careful in the definition that we do not stop ordinary citizens engaging with Government and with representatives such as Deputies, Senators, county councillors and the people who represent them and who we vote for. For the most part, I am comfortable with the definition of lobbyist used back in 2015 but I would agree with Mr. Devitt's point. What we are trying to get at in the definition of lobbying is what public policies or decisions are being taken that can have a material effect on a person, an organisation or an interest group. I would be comfortable enough that the current definition, beyond what Mr. Devitt said, works.
Mr. John Devitt:
The definition of DPO, designated public official, has been the subject of some debate. Some time back, we also recommended that officials above the grade of principal officer be included as DPOs. We were then made aware there were concerns that this might pose an undue burden on public bodies in listing those principal officers. In those circumstances, we would suggest that where there is uncertainty about the identity of a principal officer, the lobbyist would make a return citing the Minister responsible for the Department rather than naming the principal officer. We do this regularly in making submissions to Departments where we have lobbied a civil servant below the grade of assistant secretary and, instead, will name the Minister or Minister of State responsible for that particular Department rather than the principal officer, if the principal officer is not listed as a designated public official.
Thank you. That is very interesting. In his opening statement, Professor Murphy stated:
Moreover, it also brings into question the situation whereby people receive privileges by virtue of their former public employment, whether as TD or adviser, such as an access pass. There seems to be no adequate or even plausible reason as to why this remains the case and the question should surely be asked as to whether such privileges should be relinquished for at least the duration of an individual’s lobbying career.
That is quite interesting. As we know, many decisions can be made and lobbying can be done in the corridors, and one person or group might have access to those corridors while another group needs to be signed in by a Deputy. Perhaps Professor Murphy could tease that out a little more.
Professor Gary Murphy:
I thank Deputy Farrell. There was a famous example a number of years ago where a Minister said he had been approached by a person with an access pass and they discussed an issue, and the Minister then went on radio to say that he did not consider this lobbying at all in any way, shape or form. I wrote about this publicly. I could not get my head around it. I think it goes to the heart of what we are trying to do. When I say “we”, I am using a sort of royal “we”. What the State should be trying to do is ensure that the citizens of the State are equal and, as the Deputy rightly points out, not everyone has an access pass and not everyone has access to political parties or to representatives, and that is what I am getting at. While it is beyond the purview of this Bill, maybe it is something that should be considered. I have long been of the view that things like access passes which allow lobbyists, potentially former officeholders, to have quiet words does not do anyone any favours. It certainly does not do the political system itself any favours and I do not think it does the citizens of the State any favours. It goes to this idea that someone can have a quiet word with a Minister and the Minister says, “Yes, that is a very good idea”, or someone can have a quiet word with a senior official and that does not get registered. I am deeply concerned and have been for a while that this needs to be looked at. That is all I was suggesting. It is an important point because either the citizens of the State are equal or they are not. If there is a potential favour being granted by access, that has to be looked at. Does that explain the point?
Mr. John Devitt:
Again, I would agree with what Professor Murphy said. I pointed out earlier that the dual purpose of lobbying and regulation is to prevent abuse and to open policymaking to greater scrutiny. Its third aim is provide for equitable or equal access to the policymaking process, and anything that interferes with that should be addressed. I agree with what Professor Murphy said on this point.
That was my last question. It is something I have concerns about. I have written to the Ceann Comhairle on this, not in regard to former Members in general having access but people who are moving towards lobbying, as Professor Murphy outlined in his opening statement. I have not seen a response yet but it is something I will be keeping an eye out for.
I have a couple of questions from this vantage point, if that it is okay. First, I agree entirely on the necessity for openness and transparency and that everybody should be represented, and the citizen has that particular right. As Members of the Oireachtas, and even as members of local authorities, we have all promoted ideas at one time or another that became the law eventually. I wonder if there is a danger that it might prevent people from expressing their views in such a way as to bring about change that may be of benefit to the constituents, which is what we do as legislators, and I mean all of the constituents without exception. Professor Murphy referred to issues that were raised in the House and that did not fall to be answered in the House, for one reason or another.
I felt at the time that if they had been fully investigated and answered in the House, that the inquiries that subsequently followed would never have needed to happen. I am also concerned about the freedom of information process taking the place of the parliamentary inquirer. Under our Constitution, the parliamentary inquirer comes first, and should come first. Otherwise, there is no sense in the public delegating responsibility to their public representatives to represent them. Our system gives that right to the elected members. It does not apply in other countries because some of them have different systems. It is possible in some other countries for people who were never elected anywhere to become influential. A different system is in operation and that aspect concerns a different quote.
I turn now to a suggestion that in some cases there is a necessity for secrecy in the context of the EU legislation which has come upon us in recent times. It is oppressive in respect of how we do our job. I refer to the suggestion that we may have to ask the permission of a constituent to raise an issue of interest to the constituent and-or of public interest. I have a strong view on that topic. I do not believe anybody has the right to put an embargo on or erect an obstacle to the right of public representatives to raise questions. The simple reason is that the question, and its subject matter, being raised by the public representative may not favour the position taken by others. How would it be possible to look for permission to raise an issue from a person who might, for example, be engaged in criminal activity? One can hardly go to a criminal, inform him or her that one would like to raise a question about his or her activities and then ask him or her if it will be okay to do so. That does not and cannot apply. Those are a few of the things that I feel must be borne in mind. I refer to how to best ensure that the activities of elected public representatives are not restricted to such an extent that they cannot do their jobs.
Professor Gary Murphy:
I agree completely. I do not disagree at all with the Deputy. Going back to the point I made to Deputy Jim O’Callaghan in regard to when we were discussing this subject with the Department six or seven years ago, lobbying regulation is not about stopping people making representations or stopping good ideas being brought to Members of the Oireachtas, like the members of this committee, who can then bring them to the floor of the Dáil and Seanad for discussion. I do not think there is anything in this proposed Bill or in the existing Act that stops such endeavours.
I was distraught last year when the former Minister of State and the organisation he was going to be employed by sought legal advice about the situation, as distinct from talking to the commission. That situation went to the heart of a difficulty some people have with over-literal interpretations and seeking legal advice in that regard. I am with the Deputy on the role of the public representative and for that reason elections are important and people should vote in them. Going back over the last five or six years since the original Act was initiated, there has been nothing that would stop such activity.
Mr. John Devitt:
There are safeguards under the Freedom of Information Act 2014 for the privacy of individuals. Individual citizens make representations on their own behalf. Even in respect of commercial sensitivity for businesses sharing information with policymakers, that might inform that policy. If anything, the Freedom of Information Act 2014 and the Regulation of Lobbying Act 2015 have enriched public policymaking and ensured that it is informed in a way that it was not previously. This legislation has also made it possible for Members of the Houses to better hold to account those making these decisions. We are aware of numerous cases where freedom of information requests made by individuals, civil society organisations or journalists have prevented wasteful spending and averted future scandals. That was the purpose of the original legislation when it was enacted in 1997. It came on the back of a succession of public controversies and expensive tribunals of inquiry. On reflection, it has saved the taxpayer a great deal of money that otherwise would have been wasted or potentially abused. As I said, to the best of my knowledge, or I am certainly not aware of any evidence in this regard, the range of reforms enacted since 1997 have not interfered with citizens' ability to engage with their public representatives or public officials.
I should tell the witnesses that some of us have had experiences over many years. For example, it is not at all unusual to put down a legitimate parliamentary question on some subject regarding an activity or individual in some Department to deal with an issue which may have lain dormant for some time. The question, though, may be refused as inappropriate under this heading and it may be stated that it is necessary to seek the information via a different route, which I do not accept at all, of course. Subsequent to the question being put, however, even though it was never answered, action might well have been taken to address the issue immediately. What does that tell us? I agree with the witnesses entirely. I and many other members put down countless parliamentary questions in the Dáil about all the issues which ended up in the public arena. They had not been raised before because they were not allowed to be raised. I have a strong aversion to that, as do all public representatives, including the members who have contributed today. We must be fair about this. We cannot be one-sided or unfair about this subject. Professor Murphy referred to some of the American states having had concerns after some years in the context of similar legislation operating there. What were those concerns or what did they find out?
Professor Gary Murphy:
Concern was expressed about overly-bureaucratic structures and too much information being sought, particularly regarding finance. That was a big issue. This goes to the heart of the question about regulation. There is a tendency in the United States for the members of the Republican party to regard regulation as bad. There has been a sea change there. The United States has onerous regulations, including the cooling-off period of five years in some states and all payments made having to be registered, as was mentioned. There has been significant kickback against that regulation in the last decade or so.
My final point, which I like to think is an important one, is the cost. The Washington State Public Disclosure Commission had a staff of 28 people. It was then gutted in a cost-cutting exercise. I remember mentioning that to a senior civil servant that that office had a staff of 28 people. He blanched at that, but I was not saying that SIPO should have a staff of 28 people. Transparency costs money in one way. Potentially, therefore, that may account for Departments' reticence in these straitened times.
I apologise for having been in the Seanad for a short time during the meeting. I would first like to get the witnesses' perspective on two concerns I have about the lobbying aspect, and then ask them whether they feel this proposed legislation will address them or could it be strengthened in that regard. My first concern arises from a scenario involving lobbying in the context of the membership of the business community or of a business group. I recall the discussion in another committee in which I was temporarily sitting during the scrutiny of the Comprehensive Economic and Trade Agreement, CETA, between Canada and the EU.
That committee heard from a witness representing the Ireland Canada Business Association. Although the witness was clear that he was there on behalf of a business representative body and with a business mandate, he declined to clarify who all the other members of the body were. This issue relates to transparency in respect of from where an individual is coming and the body or group he or she is representing. Do we need to do more to ensure transparency in respect of the fellow membership, effectively, of a business representative lobby group or a coalition of business interests? It struck me as totally inappropriate that only two or three members of a coalition of business interests chose to state their membership while several other members remained anonymous. At the time, the general data protection regulation, GDPR, was inaccurately invoked in the context of declaring who were the members of their business lobby group. Will the Bill address that issue? I know it looks at individuals and their actions but I am wondering about bodies and their lobbying activities.
Mr. John Devitt:
I am happy to comment broadly. As far as I am aware, the Bill will not deal with that issue, but I know it has been the subject of public debate, particularly in the aftermath of Brexit. Several UK think tanks and the sources of their funding and membership have been subject to a great deal of scrutiny, largely because that information is not published. We have no idea who is funding several highly influential think tanks in London. We have not encountered that problem to the same degree in Ireland, although there will always be business representative groups the membership of which are not made public. That is a matter for separate legislation or a voluntary initiative. It is worthy of much greater analysis and public scrutiny than is currently the case. However, I cannot see how it could be dealt with right now through legislation. I may be wrong.
Professor Gary Murphy:
The proposed section 5(10), which states: "The names of individual persons, who carry on lobbying activities as part of a business representative body or coalition of business interests ... shall be included on the returns of the business representative body or coalition of business interests that are furnished to the Commission under this Act", is a pretty good start in that regard.
Mr. John Devitt:
I do not think GDPR would apply to companies that are members of a business association or group and I see no reason why such business associations would not furnish the name of those member organisations to the commission. I foresee a problem arising if, for example, a not-for-profit organisation with a large membership, such as Amnesty International, was expected to furnish the names of its members, of which it could have thousands. However, I see no reason why a business association or trade association representing organisations would not name those organisations when making representations or make that information otherwise available.
It is a nuance that may need to be addressed. Where persons are presenting themselves and lobbying, it is important to know on behalf of whom they are lobbying. Mr. Devitt touched on another concern I have, which is to ensure we avoid unforeseen consequences in this regard. All present want the strengthening of lobbying regulation but I refer to the issue of interest-based lobbying, that is, lobbying on behalf of the interests of, for example, a business lobby or other member group, versus, for example, participating in political activism in a sense. Mr. Devitt referred to Amnesty International. I presume it is not intended to catch organisations such as that and that the chill period that will apply is not meant to preclude engagement in public advocacy in that sense. Are our guests confident there is no danger of the law as it stands or the expanded laws proposed under the Bill catching not-for-profit or for-interest organisations that engage in advocacy in the classic sense of political engagement?
Professor Gary Murphy:
That is fine. I am not convinced the regulation as it currently works under the Act, or the addendum in the Bill, would impact significantly on political activism. However, I reiterate the point that in the context of charities, where there is potential for abuse of significant public money, the more openness and transparency we have regarding who is lobbying who, whether that is in the not-for-profit, business or trade union sectors, the better.
Mr. John Devitt:
I am happy to come in briefly on this point. A conflict of interest is a conflict of interest irrespective of the nature of the organisation in the context of which it arises. If, for example, a public official who had authorised a grant to Transparency International were to apply for a role with Transparency International within a year of retiring, that would raise eyebrows. We are anxious to avoid any perception of a conflict of interest, irrespective of the nature of the organisation. In such circumstances, it is important for the commission to decide whether a perceived or material conflict of interest arises where former or retiring public officials move to or assume a role with a for-profit or not-for-profit organisation. The commission should be guided by the risk of a material or perceived conflict of interest in that regard.
I thank the witnesses for attending and members for participating. The committee will briefly suspend to allow the second group of witnesses to enter. I look forward to our next meeting with our guests.
We will continue our consideration of the Regulation of Lobbying (Amendment) Bill 2020, which is a Private Members' Bill, with Ms Sherry Perreault, head of ethics and lobbying regulation in the Standards in Public Office Commission - a very useful person to have at this meeting - and Mr. Anthony Murray, assistant principal in its lobbying regulation unit. You are both very welcome. We will have a short presentation from each of the witnesses, followed by questions from the members.
Ms Sherry Perreault:
Good afternoon. I thank the members of the committee very much for the invitation to appear before the committee today. As the Vice Chairman said, I am head of ethics and lobbying regulation with the Standards in Public Office Commission.
For those who may be less familiar, the commission was established in 2001 and oversees the operation of legislation governing ethics in public office, political finance including donations, election expenses and the expenditure of Exchequer funding as well as the regulation of lobbying. The commission is supported by a secretariat, which I lead. I was hired in spring 2015 as head of lobbying regulation to oversee the implementation of the Act on behalf of the commission. The Act was signed into law in spring 2015. Most of the Act’s provisions, including the requirements to register and submit returns, as well as the Act’s post-employment provisions, commenced in September of that year. It has therefore been in operation for just over six years. The Act’s enforcement provisions, however, commenced in January 2017, and the code of conduct for persons carrying on lobbying activities, which was developed by the commission on foot of stakeholder and public consultation, came into effect two years later in January 2019.
During the past six years, the commission has undertaken extensive communications and outreach activities to raise awareness of the Act’s provisions and obligations. These include presentations to stakeholder groups, open house information sessions, print and radio advertising, the publication of articles in trade journals, the launch of a wide-ranging website, guidance tools and information notes, and promotion in mainstream and social media. During the past 18 months, outreach work has continued online and in virtual forums to continue to build knowledge and understanding of the Act.
I am pleased to say that on the whole, the Act is operating well, which is evidenced by compliance statistics. At the first reporting deadline after the Act commenced in January 2016, the register had roughly 1,000 registrants and 2,500 returns in the system. Today, we have more than double that number of registrants – more than 2,200 - and nearly 60,000 returns in the system. Registrants come from all across Ireland, and some from abroad, representing all sectors of the Irish economy. The returns on the register show that lobbying is a profoundly important mechanism by which individuals, businesses and interest groups seek to shape policy, programme, legislative and funding decisions.
While the Act is largely operating well, our experience in its administration since its commencement has identified several areas where we believe the Act may be strengthened, clarified and made more effective. The commission has made recommendations for amendments to the Act in all three legislative reviews conducted to date – in 2016, 2019 and the review just concluded this year. In its most recent legislative submission, the commission made 22 recommendations for change. I will not try the committee's patience by listing them all, but I note some are more technical in nature and are aimed at improving the Act’s clarity and efficient operation. Some, however, are more substantive and include recommendations to strengthen the Act’s post-employment provisions by broadening the scope of their application, and allowing for investigation and enforcement of non-compliance; to require public officials to close their doors to non-compliant lobbyists, and giving the commission the power to direct public officials to cease communications with non-compliant lobbyists; to broaden the Act’s application to cover informal coalitions of businesses lobbying on issues of mutual or sectoral interest; to capture lobbying by unpaid officeholders or directors of businesses, representative bodies or advocacy groups, currently not covered by the Act; and, finally, to introduce an anti-avoidance clause in the Act to make it an offence to take deliberate action aimed at avoiding the Act’s statutory obligations. The commission is of the view that the implementation of these recommendations would further enhance transparency around lobbying, slow down the revolving door and allow for more effective enforcement.
I thank the members for their attention and look forward to any questions they may have.
I thank Ms Perreault for her opening statement and for appearing before the committee. It is very interesting to hear what the witnesses have to say. My first question relates to the Act in its current form. Is the commission constrained currently in enforcing the regulation of lobbying, more generally speaking, and specifically with respect to the cooling-off period?
Ms Sherry Perreault:
I thank the Deputy for her question. Generally speaking, the Act is operating well and that includes its enforcement provisions. To date we have levied about 2,000 fixed payment notices for late returns under the registration. We have also launched prosecutions against people who have failed to register their lobbying activities or failed to submit returns. I am pleased to say that in most instances we were able to achieve compliance without having to go all the way through the prosecution process. The general idea is for us to try to achieve compliance in the first instance.
In terms of whether the Act is operating well or if there are other areas that there are challenges, obviously, post-employment is one of the key ones. While the Act sets out clear and easily understandable post-employment provisions they are not currently enforceable. In our view that is a pretty significant lacuna in the legislation that should be filled.
In terms of other gaps, the recommendations we have made in our submissions to the legislative reviews highlight those. Some of the ones I mentioned in my opening statement would include, for example, having the ability to close the door to non-compliant lobbyists, which is important, as well as having an anti-avoidance clause in place.
More generally, will this amendment Bill provide workable and practical solutions, which would strengthen and make easier Ms Perreault's job of the regulation of lobbying? She might answer that question and then I have two more specific questions.
Ms Sherry Perreault:
I have read the draft legislation. A number of the proposals contained in it reflect quite closely recommendations that have been made by the commission. I note, in particular, for example, the proposal to cover informal coalitions and to make compliance with the code mandatory to allow for expanded investigation powers for breaches of the code.
There are a couple of provisions where I am not clear how they would operate in practice. I suspect that would have to be looked at more closely. The shape of the current proposal bears a great deal of resemblance to recommendations that have been made by the commission, though not all of them.
My other question is one I raised with the witnesses at the earlier committee meeting. Professor Murphy mentioned it in his opening statement, which I am not sure Ms Perreault saw. It relates to former Members who, when they move to a lobbying firm, still have that access pass and have access to the so-called corridors of power where decisions are made. There are concerns about their ability to lobby in what they would consider an informal way in those corridors, while other lobbyists are left outside. Professor Murphy raised in his opening statement the question of whether that pass should be relinquished temporarily while a person works for a lobbying firm. I wrote to the Ceann Comhairle on this but have not received a response yet. What is Ms Perreault's view on that?
Ms Sherry Perreault:
Access to Leinster House and the parliamentary precincts is a matter for the Oireachtas. Under the current legislation, there are no post-employment restrictions for Members of the Oireachtas in the Dáil or Seanad Éireann unless they are officeholders. Certain designated public officials are subject to post-employment cooling-off provisions under current legislation, including Ministers, Ministers of State, ministerial advisers and senior civil servants. Members who are not officeholders are not subject to those restrictions. Regardless of the access issue which is one for the Oireachtas and Leinster House, what the Deputy is proposing in regard to the extension of the provisions to TDs and Senators who are not officeholders would require further amendment to the legislation.
I will ask a broader question on the definition of lobbying. It is something I raised with the previous witnesses. I would be interested to hear the witnesses' views. At the moment, lobbying is when one is communicating directly or indirectly with a designated public official, DPO, on a relevant matter, the communication is not specifically exempted and one belongs to one of the detailed groups. I will not read them out. The relevant matter could consist of "the award of any grant, loan or other financial support, contract or other agreement". If I was lobbying for financial support, a contract or other agreement for myself, that would not be considered lobbying; however, if I did so as a third party paid to communicate on behalf of a client, it would be lobbying when it is with a DPO. Does that definition need to be broadened?
Ms Sherry Perreault:
There are a few things in there to pick apart. First, where a person falls within the scope of the legislation and makes a communication to a designated public official about a relevant matter, that is considered lobbying for the purposes of the Act. The Deputy is correct that the person has to fall within the scope of the legislation and, the way the Act is structured, it is largely targeted at business or business interests as well as representative and advocacy bodies. A person with more than ten employees, a business, a representative body or an advocacy group, as long as it has at least one employee, falls within scope, as would any third party paid to lobby on their behalf. Even if a consultant is lobbying, their client has to fall within the scope of the legislation as well for that to be a registrable lobbying communication. If I lobby as an individual and do not fit within the scope of the legislation, that lobbying also would not fit within scope if a third party was lobbying on my behalf. The primary client has to be within the scope of the legislation as well and it has to be about a relevant matter and to a designated public official.
Whether that needs to be expanded is a matter for debate. I am of the view that the Act's exemptions provide for things like private affairs being outside of scope and one would have to be cautious in terms of how the Act was reshaped to capture any matter that dealt with, for example, public funding and not to capture an individual's private affairs. For example, under the current legislation, if a constituent contacts their local TD and seeks assistance with a passport, their spouse's immigration status or a medical card for a family member, such communications are outside the scope of the legislation and not captured. If they were to communicate about something like a passport, it still involves public funds but it is not in the same way that seeking a contract with the Government would be. If there was a desire to expand that, it would have to be done carefully so it does not capture regular constituent communications.
I welcome our guests from the Standards in Public Office Commission. I will pick up on the last point. Under the definition of lobbying in the legislation as currently drafted, an individual who is not operating on behalf of a third party and does not have more than ten employees can only lobby if it is deemed to be about land rezoning. We have had a huge controversy about former Minister, Katherine Zappone and whether she lobbied for a position paid for from the public purse. I will not go into detail on that but, as earlier commentators mentioned, we sometimes get better legislation, unfortunately, after an event has taken place. The legislation allows me, potentially, as a former TD, to phone a Minister and say I am desperate and would love to be appointed to a position that would tide me over with €30,000 or €40,000 per year. Under current legislation, I have not contravened any lobbying Act and have no requirement to register that in the lobbying register. I cannot be deemed to be lobbying a Minister even though I would be getting a public contract worth €40,000. Indeed, it could be millions of euro, hypothetically, and would not fall within the scope of the Act. Is that not something we need to deal with? The difficulty and challenge that has been laid out is how to define that to exclude somebody looking for assistance to get a grant for their roof because it is leaking and they need State support.
Ms Sherry Perreault:
I will not comment on any individual's compliance or compliance matters relating to an individual.
There are obviously certain matters that fall outside the scope of the legislation. It is correct to say that an individual is only captured by the legislation if he or she is lobbying about the zoning and development of land, as defined in the Planning and Development Acts. Individuals could theoretically fall within the scope of the legislation if they are employers, but not in their capacity as individuals. With regard to the question raised about business interests, there is a distinction to be made, for example, between people lobbying for a contract for a business to deliver something and people communicating in respect of employment. Other legislation outside of the remit of the Standards in Public Office Commission may be involved. I cannot speak to that. Right now, under the Regulation of Lobbying Act 2015, there are no provisions that capture individuals acting in their capacity as individuals, other than with respect to the zoning and development of land.
The Standards in Public Office Commission has already made two submissions, which have been published. On the most recent submission, has the commission withdrawn any of the amendments it sought earlier? I refer to the 22 recommendations it made in 2019.
The majority of those 22 recommendations are captured in the legislation Deputy Mairéad Farrell and I have sponsored. It was easy enough to draft because the recommendations were so clear. I would like to hear, perhaps at a later stage, any issues, questions or concerns the commission has with regard to the implementation of some of it. When the recommendations were made in 2019, the Department assessed them and responded. SIPO expressed disappointment at the time that not one of the recommendations was endorsed. The commission said at the time that the recommendations of the Department's report suggested "most concerns about the legislation raised as part of the review process may be addressed through greater guidance and clarification by the Commission." The commission went on to say:
[I]t is the Commission’s view that this does not accurately reflect the range of specific issues that can only be addressed through legislative amendment. This includes, for example, introducing enforcement powers for breaches of the Act’s post-employment provisions, as well as requiring public officials to decline further communications with persons who fail to comply with the Act.
That point has been made a number of times. Has the commission had any interaction with the Department since? There seems to be two very different views here. The Department believes that greater guidance from the Standards in Public Office Commission is required. I do not share this view; I am the sponsor of this legislation. However, I want to hear both sides. The Department believes we need greater guidance from SIPO to deal with some of these issues. In respect of one matter, the cooling-off period, it has asked to be shown examples. We have a very clear example now. I will not go into specifics but there was a controversy recently. Has the commission seen any indication that the Department has come around in any way to SIPO's consistent and persistent view that the recommendations need to be enacted?
Ms Sherry Perreault:
As the Deputy said, the report produced by the Department in early 2020 in respect of the second legislative review of the Act pointed out that the Department was of the view that the commission could issue more guidance and education in certain areas. The commission then expressed its view that there were areas of the Act that should be amended in order to address some of the commission's recommendations. That remains the commission's position. The commission has done extensive outreach around the Regulation of Lobbying Act in particular, in addition to outreach around the other areas of its remit. We have a wide-ranging website which features significant amounts of published guidance and the answers to frequently asked questions. We conduct open house information sessions on a regular basis and do outreach to targeted sectoral communities, including through published information notices and lists of the top ten things people need to know. The commission has produced, and continues to produce, extensive and wide-ranging guidance and education material. We are, therefore, of the view that we are responding to any requirements for more information that have been identified.
To address some of the other issues, we remain of the view that it is only through legislative amendment that some of these shortcomings in the legislation can be addressed. The most prominent example is that of the enforcement of post-employment provisions. There is currently nothing to allow the commission to enforce those provisions. There are also other areas I have already touched on such as anti-avoidance measures and capturing informal business coalitions and so on. It is only through legislative reform that these matters can be addressed. We are hopeful that this reform will occur.
In respect of the Department's engagement, there has been another legislative review of the Act. This was launched late last year, only months after the previous review had concluded. I will not speak for the Government but, with this review, it has already gone on the record to indicate that it intends to carry out some reform with regard to the post-employment rules in particular. It is also looking at operational amendments to the Act. My understanding is that the review is concluded and that Government is bringing a general scheme to the Oireachtas at some point in the coming months for legislative amendment. I cannot speak to the particulars of that.
I appreciate that. Sometimes it takes the publication of our own legislation to spark the Government into action. In response to a question from Deputy Mairéad Farrell earlier this year, the Minister said he believed this was not required. It is good to see that there has at least been some movement in the Department's view on this matter, although it was brought on by a former Minister of State who brought forward legislation for an industry on behalf of which he began to act as a lobbyist some months later.
That brings the issue of SIPO's powers to investigate and to sanction those who do not comply with section 22 of the Act into sharp focus. What are the commission's views on that? Is it the most important power it needs at this point in time? What is its view on the anti-avoidance provision laid out in section 6 which would it make it an offence to deliberately avoid obligations under the Act? Do the witnesses believe that is onerous, for example, in the case of people deleting social media? What are the commission's views on the stated position of a number of Ministers who have operated through private email accounts in the past? How does that comply with their obligations under the code of conduct? Will the representatives clarify the commission's position on the extension of the cooling-off period from one year to two?
Ms Sherry Perreault:
I am just jotting down those points so that I do not miss any. The commission has not ranked the priority of the recommendations it has made but it has commented on the issue of post-employment provisions and the lack of enforcement powers in that regard on a number of occasions. That presents a real dilemma for the commission as to how it can effectively oversee the administration of those provisions. All of the other key provisions of the legislation, including the requirement to register and to submit returns, are enforceable. The commission has certainly undertaken enforcement activities, where necessary. With regard to the post-employment provisions, I am pleased to say that we have had numerous applications to waive or reduce the cooling-off period. The commission notes that those people who have approached the commission seeking such a waiver or reduction are complying with their obligations under the Act to seek the consent of the commission. That is heartening.
The fact is that where a person fails to comply either with the application process or with the provisions of any consent given or refused by the commission, there is nothing in the commission's powers, under the legislation currently, that will allow it to enforce the legislation. It remains the view of the commission that that is a key priority area for amendment in the Act.
In respect of an anti-avoidance clause, it would probably operate in conjunction with other potential offences under the legislation. Somebody who is investigated for non-compliance, lobbying without registering or failing to disclose all of their lobbying activities in a return, for example, might obstruct the investigation in some way or fail to comply with a order of an officer, which are already offences under the current legislation. An anti-avoidance provision captures the aspects that do not currently fall within any of the other provisions of the legislation. For example, where somebody set up a company in order to ensure it does not meet the qualifying provisions of the legislation, it would, therefore, fall outside of scope. Somebody could target their activities through an organisation so that would deliberately fall outside of scope or they could ask their unpaid officeholders to conduct their lobbying activities instead of their paid employees and so on. There are activities or actions that people may take to avoid their obligations. We are of the view that those should be captured where it is a deliberate attempt to circumvent the purposes and transparency that is sought by the legislation.
In respect of the question on email accounts and violations of the code of conduct, that would be outside of the scope of the Regulation of Lobbying Act. The Act is meant to make lobbying activities transparent. The onus is on the lobbyist, the person who conducts the lobbying activities, to register and submit returns.
Designated public officials are subject to other legislation, including freedom of information, which is outside our remit and not something I can comment on. Those are things that are for a different conversation on another day in terms of how those could be captured. At present, there are no obligations directly on designated public officials in the legislation. One of the recommendations we have made is that designated public officials should have the obligation to refuse further communication with somebody where they know that person to be non-compliant. If somebody is non-compliant, or fails to register and submit returns of their lobbying activities, then their access to decision-makers should not be unimpeded in the way people who are compliant have unimpeded access.
I apologise for missing the first minute of the reply by Ms Perreault and if my next questions have already been answered. Is she satisfied that her office has the necessary staff and resources to carry out the operations that are assigned to her office under the Regulation of Lobbying Act and, indeed, any future obligations or powers that would be given following the enactment of this legislation?
SIPO publishes its findings on its website and the media have reported the fact that the SIPO investigation against the former Fianna Fáil Senator, Brian Ó Domhnaill, cost €360,000. SIPO found that the Fianna Fáil Senator claimed expenses twice, I think, during his time in Údarás na Gaeltachta. Is there a mechanism to recover costs? Can Ms Perreault explain why an investigation of an issue involving, I think, a few thousand euro cost €360,000, which I understand is the figure from freedom of information requests lodged by the media?
The Standards in Public Office Commission is obliged to publish its findings on its website. I am at the disposal of the Vice Chairman but I do not think that I have revealed anything that is secretive. In fact, the matter is quite transparent and there is an obligation on SIPO to make public its findings.
Ms Sherry Perreault:
First, I must apologise to Deputy Doherty. I am grateful to my colleague, Mr. Murray, for pointing out to me that I overlooked the Deputy's question on the proposed increase of the cooling-off period from one to two years. The commission does not have a particularly strong view on that. The current one-year cooling-off period is on the shorter end of the range compared with some international jurisdictions. For example, in Canada, there is a five-year cooling-off period that applies not only to certain designated public officials but to all civil and public servants once they leave office. There are then explicit provisions that apply to ministers of cabinet who are not allowed to lobby their former cabinet colleagues, are not allowed to switch sides in a negotiation and are not allowed to use insider information. Those provisions do not exist in Irish legislation.
I am of the view that that aspect of the legislation could be strengthened in terms of the applicability of the post-employment provisions. They should not only be restricted to certain designated public officials but also capture communications. The commission, as commented in a previous annual report, believes that provisions should extend to individuals with whom they might have contact not just the public by whom they were employed. The provisions might also extend to include communications between Cabinet colleagues, for example. There are ways in which the legislation could be strengthened.
There is not a particularly strong view on increasing the period from one to two years. Whatever the period the legislation needs to be enforceable and that is the priority. Rather than worrying about the duration of a cooling-off period it is more about whether the legislation has teeth.
Deputy Doherty asked about staffing and resources, and then about investigation costs. In terms of our operations, the commission oversees the Regulation of Lobbying Act, the Electoral Act of 1997, the Oireachtas (Ministerial and Parliamentary Activities) (Amendment) Act and the Ethics in Public Office Acts. All of this legislation has significant processing, returns, advisory and guidance functions for the commission as well as outreach and investigation activities. The commission has a broad mandate. Our secretariat is provided by the Office of the Ombudsman. Currently, we have 20 full-time positions in place within the secretariat and that includes myself, to oversee, on behalf of the commission, the day-to-day operations of all of those pieces of legislation.
In respect of whether we have sufficient staffing for our operations under the Regulation of Lobbying Act, yes, our operational unit, under the current legislation, is sufficient to manage the registration and returns requirements. We also have an investigations unit that looks at investigations under both the electoral and ethics legislation, so the work is divided.
Within the broader secretariat and our broader remit, there are some challenges in respect of staffing levels and resources. Members will have seen comment in the public domain, and most recently by the Hamilton review group, about staffing and the potential need for a capacity review of the commission to determine whether we are sufficiently staffed. The short answer is "yes". I believe that we have sufficient staff to manage the lobbying side. In respect of whether we have sufficient staff to manage the breadth of the commission's mandate, that requires some study and we will look at whether there are ways in which we might be able to either streamline our requirements, maximise our resources or, potentially, add to those resources.
The Deputy also asked about investigation costs. I will not comment on any individual or the content of that particular investigation, although there is a published investigation report, as the Deputy rightly pointed out. In that particular instance, it is not fair to characterise those as investigation costs. The investigation itself was not a particularly lengthy or onerous process. However, a number of court challenges were taken against the commission in respect of the procedure by which the commission would conduct its hearing and the use of official languages in that regard. As a result, there was a High Court challenge and judicial review. I think it also went to the Court of Appeal, although I may have to double-check that because I was not the secretary to the commission at that time. Most of the costs the Deputy cited are associated with court actions and not the investigation.
Most investigations that are conducted by the commission under the ethics Acts, as that particular investigation was, are largely done on a complaints basis. If we receive a complaint, then the commission conducts a preliminary inquiry, which is usually conducted by an in-house inquiry officer. It might involve taking some statements or gathering documents. The inquiry officer then forms a view as to whether there is prima facieevidence of a breach that sustains the complaint. That report is brought to the commission, which will determine whether to proceed to investigation. The investigation is, generally, just a hearing. It often lasts for a day or less than a day. All six members of the commission and the respondent attend. The respondent may or may not have legal representation. Witnesses may be called, although it is usually only a couple. It is a day's work. The actual investigation costs per day would then comprise stenography, counsel to represent the commission and present the case against the respondent, plus the costs of any commission attendance on the day. The costs for each investigation are not onerous but where court challenges are taken, they inevitably bring with them other costs and that is what can be seen in that particular investigation.
Ms Sherry Perreault:
I suppose that depends on the circumstance. That is why persons would have to seek the consent of the commission if they believe their obligations under section 22 of the Act might be engaged. The Act as currently drafted states that a person is prohibited from either engaging in certain lobbying activities themselves or being employed by or providing services to somebody who engages in those lobbying activities. If someone is, for example, invited to be on the board of directors of a charitable organisation, and that position is not remunerated, I would still view that as providing services to the organisation. If the organisation is a registered lobbyist and lobbies the public body the board member was formerly involved with, consent of the commission would be required. It depends on the circumstances of both the individual who has left office and the employment they are seeking to take up.
My next question relates to positions taken by public representatives in the normal pursuit of public business. Lobbyists or members of the public may come on-stream in support of the position taken by the public representative. Does that impose any restrictions on the public representative?
I referred to this earlier. Public representatives usually raise questions about an issue and regard it as within our remit to do so. It may well happen that some of the issues we raise of our own volition may, from time to time, also fall within an area also covered by lobbyists. We may not know that at all and have the need to pursue our business independently. Does that create problems for the public representative? I have spoken about this issue before, needless to say, and will probably do so again.
Ms Sherry Perreault:
The role of the public representative is to represent his or her constituents and raise any issues that he or she believes to be of importance and in the public interest. There is nothing in the Regulation of Lobbying Act that would impede the role of the public representative in that regard. I am aware that there are instances where a public official may be lobbied by an organisation that shares the views of the public representative. If the representative is engaging in lobbying on behalf of that organisation, by which I mean the organisation has explicitly asked the public representative to raise a matter with a Minister or departmental official, the organisation that is engaging in that lobbying must submit its returns and name the public official it has to asked to do that. If, for example, the Vice Chairman is asked to engage on behalf of a charity with which he has worked, the charity needs to name the Vice Chairman on its returns. That said, there is nothing that impedes him in his role and there should not be any issue. There is nothing that would require the public official to either alter his or her proposed actions or to submit returns.
There is one caveat to that. I know there are a number of Members of the Oireachtas, both in the Dáil and the Seanad, who engage in outside employment, particularly if they are not officeholders. Let us say a Member owns a business or is a consultant in his or her private life. If that person is lobbying in respect of that business interest, he or she should register and submit returns. That situation would not enjoy the exemption of lobbying in the capacity of a public official because the person concerned is not wearing that hat at the time.
Would anybody else like to come in? No. In that case, I thank our guests for their attendance. The meeting was informative and will be of benefit in the pursuit of this particular legislation in the future.