Brendan Howlin (Wexford, Labour) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Significant progress is being made on the programme of political and legislative reform aimed at enhancing openness and transparency. The Registration of Lobbying Bill is an integral part of this programme. The key objective of the Bill is to introduce a register of lobbying to make information available to the public on the identity of those who are communicating with the Government and senior civil and public servants on public policy matters. The exclusive purpose of lobbying by individuals or groups with different interests is to influence decisions taken at political and administrative level. There is, therefore, a strong public interest in knowing "who is lobbying whom about what". The Bill is specifically designed to achieve this goal through the establishment of a web-based registration system of lobbying activity.

Vibrant communication and dialogue and close interaction and engagement between the Government and citizens are central to a well functioning democracy and vital to support informed and evidence-based decision making. Interest groups, representative bodies, industry and civil society organisations, NGOs, charities and third party professional lobbyists all provide crucial input and feedback for the political and public administration systems through communication of the views and concerns of the public to legislators and the Government. However, they also clearly seek to influence the policy and decision making process in order to align it with their own organisational or personal goals and objectives. These goals and objectives may reflect a private, commercial or sectoral interest or be represented as a wider public interest or benefit.

The aim of the Bill is unequivocally not to restrict the flow of information, opinions, perspectives or proposals feeding into policy making or legislation but rather to bring about significantly greater transparency in that flow. It is appropriate that this activity is open to public scrutiny as part of the desirable checks and balances which help to ensure any attempt to seek to exert undue or improper influence on the conduct of policy formulation and development, political decision making and preparation and implementation of legislation is discouraged.

The reports of the Mahon and Moriarty tribunals have highlighted, inter alia, the risk that the legitimacy of the political system could be eroded by the corrosive impact of secrecy and undue influence. The regulation of lobbying is one of a suite of measures the Government is taking to address, through an extensive programme of political and governmental reform, the serious concerns that have emerged in this area in recent times. The value of regulation of lobbying in fostering a culture of integrity is supported by the Organisation for Co-operation and Development, OECD, which states "...a sound framework for transparency in lobbying is crucial to safeguard the public interest, promote a level playing field for business and avoid capture by vocal interest groups". Since communication is the essence of policy making, the introduction of lobbying regulation cannot be allowed to obstruct the information channels to the political system and the public service. The international experience of lobbying regulation reassures us that regulation has not given rise to such unintended harmful effects, nor is there evidence that it has made it more difficult to gain access to key decision makers.

It is clear that the introduction of lobbying regulation in Ireland represents a significant change to the existing political culture, replacing a relatively informal set of arrangements with, I hope and believe, a more structured and transparent system. My Department's task was twofold: first, to formulate legislative proposals to meet the objective of registering lobbying activity in a transparent manner and, second, to address the cultural shift required to ensure successful implementation of regulation in this area. From the outset, therefore, my Department sought to engage with as many stakeholders as possible in the change process and tailor the legislation, based on the feedback from that consultation process and best practice and experience overseas, so as to develop a user-friendly and not overly burdensome registration process which meets the transparency objective but minimises compliance costs in terms of both time and resources.

In December 2011 advertisements were placed in the national newspapers inviting submissions from interested parties on key issues relating to options for the design, structure and implementation of an effective regulatory system for lobbying. The consultation process was based on the agreed OECD principles for transparency and integrity in lobbying which were the subject of a recommendation by the OECD council in February 2010. The response to that consultation process was positive and approximately 60 organisations and individuals initially submitted views to my Department. A number of these contributors were subsequently invited to meet officials of my Department to discuss specific issues contained in their submissions. In addition, my Department undertook a review of international approaches to the regulation of lobbying.

Research was undertaken of lobbying regulation in a number of countries, including Canada, the USA, Australia and several European countries. The regulations in place in the European Union institutions were also analysed, as were the proposals at the time for the introduction of a regulatory regime in the United Kingdom. This work was advised and informed by the work of three international experts on lobbying regulation, Professor Gary Murphy of DCU, Professor Raj Chari of TCD and Dr. John Hogan of DIT, as well as comprehensive analysis and recommendations published by the OECD on lobbying regulation. In preparing my proposals I had regard to five Private Members' Bills published on the topic of regulation of lobbying since 1999. Four of these Bills were introduced by the Labour Party, including one by me, while one was introduced by Fianna Fáil in opposition. The Fine Gael draft lobbying Bill included in its "New Politics" document, published in 2010, was also reviewed as part of the comprehensive analysis of best ideas.

In July 2012 my Department published a policy paper entitled, Regulation of Lobbying Policy Proposals. In overall terms, the paper examines what activities should be the subject of regulation through the introduction of a new register. The paper was published to communicate to the public and all interested parties, including Departments and public bodies under their aegis, the main elements of my proposed policy approach to the development of legislation in this area. The paper promoted the view that lobbying was inherent to the democratic process, in and of itself a good thing and played a very positive role in securing a more informed environment for policy making and the development of legislation. I believe there is not a Member of this House, in his or her normal clinic activities, who is not lobbied either by individuals who because of their personal circumstances look for a change in the law or by local or national organisations.

The paper sets out the policy rationale for the regulation of lobbying, as well as an overview of the proposed policy framework and recommended options for further consideration of key features of the legislation, including definitions, disclosure, exemptions, exclusions, the format of the lobbying register, the lobbying registrar, sanctions, a code of conduct, registration fees, a cooling-off period and a review of the legislation.

The publication of the policy paper was also intended to allow stakeholders to provide further views on the principal implementation issues arising from the proposed policy approach.

Following publication of the policy proposals, a public seminar on the regulation of lobbying in Ireland was hosted by my Department on 5 July 2012 with contributions from me and Ms Lynn Morrison, Integrity Commissioner of Ontario, who was the key speaker at the seminar. This provided an opportunity to have a full and frank debate with a range of interested parties on the emerging issues from the consultation process to the options for improving the regulatory system proposed. Following the public seminar, a further consultation phase on lobbying took place focusing on the issues raised at the seminar. Approximately 30 further responses were received, including from several Departments and public bodies. My proposals have been carefully framed to take account of the issues raised throughout this rather exhaustive consultation process which was important in bringing the Bill to its current stage. Full details of the consultation process, including all of the submissions received and the reports of meetings which took place with stakeholders, are published on my Department's website.

I turn to the Bill before us and will briefly go through each Part outlining the content and purpose. Sections 1, 3 and 4 deal with standard preliminary and general matters, including the Title of the Bill and provisions for commencement of the Bill. Section 2 provides for a regular review of the operation, implementation and effectiveness of the legislation. Deputies this this is necessary because we are not going to get it exactly right and we must learn from user experience as the process develops. The first review will be held no later than one year after the commencement day of the Bill. Each subsequent review should be held every five years thereafter. I am interested in hearing Members' views on whether that is too long or short a time line and I have an open mind on the matter. Reports on the findings and recommendations of each review will be presented to both Houses of the Oireachtas within six months of the end of the relevant period.

Section 5 provides the definition of "lobbying". It establishes that lobbying activity is carried out by persons in the course of their business in return for payment by a client - obvious paid lobbyists; an employer or his or her employee on behalf of the employer; any person on matters of planning or rezoning of land. It defines the communications which constitute lobbying and those that are excluded. It also determines that normal citizen interaction with public representatives in a private and non-commercial capacity or communications by employers with ten employees or fewer acting on behalf of that employer will not be included in the register unless the communication is in respect of land rezoning or development. Planning matters relating to an individual's private residence will also be exempt.

This section also sets out other exemptions from the regulatory requirements set out in the Bill. Such exemptions include those relating to international relations, factual information sought by a public body or other information sought and published by a public body and matters posing a threat to the safety of persons or the security of the State. It also exempts communications between public officials acting in an official capacity. Communications between members of a group established by a Minister or a public body and including persons from outside the public service are also exempt, subject to a requirement to comply with a transparency code.

Section 6 sets out the meaning of "designated public official". This term includes Ministers, Ministers of State, special advisers, Deputies, Senators, members of local authorities and Irish MEPs. I intend that, on commencement, the Bill will apply to communications with officials at Secretary General and assistant secretary level in the Civil Service and equivalent levels in local authorities. It is my intention to extend the Bill on a phased basis and prescribe further grades within the Civil Service and other areas of the public service as designated public officials in the light of experience with implementation. Again, I am interested in hearing the views of Members opposite in that regard. The Bill requires public bodies to maintain a list of designated officials with up-to-date details on their websites.

Section 7 defines certain terms used in the Bill.

Part 2 of the Bill contains sections 8 to 15, inclusive, and details how the system of registration of lobbying communications will operate. Section 8 provides that a lobbyist must be registered before carrying on lobbying activities, unless it is that person's first time to lobby. In that case, the registration and the return must be completed before the next return date.

Section 9 provides that the commission will establish a register of lobbyists. The Standards in Public Office Commission will be the registrar.

Section 10 provides that the information to be supplied when registering or in a return will be available on the register. It provides for the commission to decide not to publish certain personal information in order to prevent misuse or to protect the person's right to privacy, for example, private email addresses. It also sets out the role of the commission should it deem that information given is inaccurate, out of date or misleading.

Section 11 provides for the registration details to be included in the register and confirmation that the details entered on the register are correct. It also allows for registrants to have their registration marked as ceased.

Section 12 provides for returns to be filed. It requires three returns per year. Anyone engaged in lobbying, in accordance with the definitions used in the Bill, must file a return for each of the mandatory return dates. It allows for a nil return to be submitted also.

Section 13 provides that the commission may require clarification or further information which must be returned within 21 days of the date of the notice. Where a reply is not received within 21 days, the inaccurate registration or return will be removed from the register for non-compliance and a notice of the removal will be issued. The registration or return will be considered as not having been made. In certain circumstances the commission may also immediately remove the information from the register.

Section 14 provides for delayed publication where the registrant believes the registration or the return relating to the lobbying activity would be expected to have a serious adverse effect on the financial interests of the State, the national economy or business interests generally or the business interests of any description of persons or it establishes that the commission on receipt of the application will consult the relevant Ministers, where appropriate, before a decision is made on such matters. Delayed publication may also be sought where immediate publication would be expected to cause a material financial loss to the person to whom the information relates or prejudice seriously the competitive position of that person in the conduct of the person's occupation, profession or business or the outcome of any contractual or other negotiations being conducted by that person. In both cases, the commission would be required to consider whether the public interest would, on balance, be better served by refusing to grant than by granting the application. The commission may also decide to publish summary information only. All of this is an empowering provision to be exercised at the complete discretion of the registrar.

Section 15 is a technical provision and establishes that any document which the commission certified as a copy of an entry on the register is deemed to be a true copy. This is just normal legal cover.

Part 3 of the Bill contains sections 16 and 17 and deals with the code of conduct for lobbyists and guidance to be provided by the commission. Section 16 allows for a statutory code of conduct to be created for lobbyists by the commission. In developing a code the commission must consult interested organisations or individuals.

Section 17 allows the commission to issue guidance, particularly with a view to promoting understanding of the Bill. This is a new provision and from all the discussions I have had with interested groups, I know that there is concern and fear about how it will impact on normal organisations such as the IFA and trade unions in carrying out their normal affairs. It will take a bedding-in process to explain it in some detail.

Part 4 contains sections 18 to 21, inclusive, and deals with enforcement matters. Section 18 defines the contraventions relevant to the Bill. Section 19 provides the commission with the power to authorise an investigation to be carried out. The commission can appoint authorised officers to carry out an investigation on its behalf. While conducting an investigation, an authorised officer can request any information or copies of documentation deemed appropriate to the investigation and has the power to enter the premises to seek copies of documents, subject to the consent of the occupier or pursuant to a warrant. Any information in the authorised officer's possession will remain confidential, unless the Bill requires it to be public.

Section 20 provides for prosecution for serious offences under the Bill and the imposition of penalties for these offences. Section 21 establishes that the commission may serve fixed payment notices where an offence has been committed under section 20(1) in regard to the late filing of returns. A fixed payment notice will state the amount, namely, €200, and the payment method and date. Where payment is made within the timeframe, court proceedings will not be initiated.

Part 5 contains sections 22 to 26, inclusive, and covers miscellaneous and supplementary issues. Section 22 provides for certain designated public officials, notably Ministers, Ministers of State, special advisers and, on commencement of the Bill, Secretaries General and assistant secretaries in the Civil Service and equivalent grades in local authorities, to apply to the commission for approval to carry out lobbying activities in an area that might cause a conflict of interest as a result of their former roles in public employment within one year of ceasing to be designated public officials. The model proposed focuses on the particular activities likely to present a conflict of interest, rather than imposing a blanket ban on the take-up of employment. This approach allows the commission to permit, for example, the take-up of employment but to impose conditions or refuse to give consent. This will be an issue we can discuss in some detail. We have to strike a balance between not debarring people from exercising their constitutional right to work, while at the same time ensuring there is no improper use of information gleaned or garnered while holding a public position when one has moved out of that position.

Section 23 provides for appeals of decisions made by the commission. It establishes that the Minister can appoint a panel of independent appeals officers. Appeals may be made in regard to decisions made under section 10(5) relating to inaccurate or misleading information, under section 14 relating to delayed publication or under section 22 relating to post-term employment applications.

Section 24 establishes that a decision of the appeals officer may be appealed to the High Court on a point of law. This appeal must be brought within 21 days of the notice of the decision. The decision of the High Court is final.

Section 25 provides for an annual report to be compiled by the commission. It sets out the type of information to be reported on and provides for the report to be laid before each House of the Oireachtas within six months of the end of the relevant period.

Section 26 makes amendments to the Ethics in Public Office Act 1995 to provide, as appropriate, for changes to the functions of the commission regarding its new role as lobbying registrar. The consultation process has demonstrated the complexity of the issues involved and the required culture change arising in the introduction of regulation in this area for the first time. I assure the House that the correct balance will be achieved between the need for maximum transparency in public policy making and the need to avoid unnecessary administrative burdens on those sectors which interact, as a matter of course and routine and as is proper and appropriate, with government. The Bill, therefore, proposes reviewing the legislation 12 months after its commencement in the light of our experience with its implementation.

I would welcome the views of Members now and in more detail when we get into the meat of the Bill on Committee Stage on any additional provision which they believe would strengthen the Bill or help to ensure it meets its core objective of casting greater light on public policy making. I will genuinely approach our discussions with an open mind. I anticipate that I will have a number of technical amendments to bring forward on Committee Stage. In addition, I intend to propose an amendment to section 5 which will have the effect of ensuring relevant communication by representative bodies and bodies established to further particular issues will come within the definition of lobbying, regardless of the number of employees in the bodies. The amendment will not change the broad policy approach adopted in section 5.

The intention is that the Bill will be enacted during this session. I hope it can be passed safely by both Houses in that timeline. A period of time will then be required prior to commencement of the legislation to enable the development of the IT and information systems which will support the registration process. My Department is working closely with the Standards in Public Office Commission on these issues. We are also discussing resource issues. It is intended to establish an advisory group shortly, comprising relevant experts and key stakeholders who will be in a position to provide information and guidance to assist in the smooth implementation of the Bill once enacted. Of course, the timeframe for the regulatory provisions of the Bill to be brought into operation will depend, in the first instance, on the time it takes for both Houses to pass the Bill. All going according to plan, however, I anticipate commencement of the Bill by the summer of 2015.

I will be happy to expand on any of the provisions included in the Bill during the course of the debate, if Deputies wish to raise particular issues, if there are new proposals or anybody has examined international best practice and can add to the Bill. I will approach the debate with an open mind. I look forward to hearing the contributions of Deputies and hope the House will support the passage of the Bill, secure its speedy passage on Second Stage, have a detailed debate on Committee Stage to meet the timeline I have set out for having the Bill as the law of the land, with all support necessary through the Standards in Public Office Commission, by the middle of next year.

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