Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I thank all the Deputies for their contributions during the Second Stage debate. Many interesting points were made by colleagues from across the House. Broadly speaking, there is good support for the Bill, but some colleagues want to go further and will table amendments, which is what the legislative process is all about. As is always the case, I will give very careful consideration to any constructive amendments that are tabled by colleagues.

I thank everyone for their contributions. There was broad agreement that interaction between the political system and the public provides us as political representatives with valuable insights, information and policy perspectives which are critical to good governance given the complexity of the challenges facing public policy makers and the wider impact of Government decisions and decisions of this House on all aspects of the economic and social system in the country. The reasons for regulating lobbying in Ireland are all grounded in the principal necessity of enhancing transparency around this interaction. There was agreement among colleagues across the House of the need for that transparency to be enhanced. Furthermore, this transparency is a critical driver of trust in the Government, and of trust in the political system as well. The main goal, therefore, in establishing a register of lobbying back in 2015 was to make information easily available to the public on the identity of those seeking to influence public policy decisions, as well as to provide a framework for holding those engaged in lobbying accountable for the manner in which they conduct the activity. As has been said a number of times in this debate, there is nothing inherently wrong with lobbying, but it is important that we know who is lobbying, who is being lobbied and what the intention of it is. All of that must be available in the public domain so that it can be weighed up and considered in light of all of those facts.

Currently, there are more than 2,400 organisations and individuals registered on the lobbying register in Ireland and almost 71,000 returns are available for viewing online. By any yardstick, that is a well-developed system that has served us well, notwithstanding the limitations and the need to improve further on it. The specific purposes of the proposed amendments being brought forward in the Bill to the 2015 Act are to improve the operation and functionality of the register and to strengthen the existing legislation and its enforcement. My objective is to build on the existing effective online system, which is open to all to see who is lobbying who about what and to make it easy to comply with the obligations under the legislation and to promote compliance by ensuring proportionate sanctions are in place where obligations are not met.

I will briefly touch on a few of the points that have been made by colleagues. The cooling-off period has been raised on a number of occasions. I have no doubt it will be the subject of extensive discussion and debate on Committee Stage and Report Stage. In the existing legislation, the cooling off period is 12 months and I do not propose to change that. My view and that of the Government is that the current one-year cooling-off period is a proportionate policy response, balancing the constitutional right to earn a livelihood with managing conflicts of interest, or perceived conflicts of interest, of those leaving public sector roles and taking knowledge and expertise from those roles into the private sector. We must also be conscious that the terms of a cooling-off period may well have the impact of influencing whether people can take up roles in public life or in the wider public service. That is an issue to which we must give consideration. I did not hear any colleague suggest that if we increase it to three years or five years that we would pay people who leave a public service role or political life for the duration because I do not think that would be acceptable to the general public, nor should it be.

I also wish to draw the House's attention to the fact that while I do not propose to increase the cooling-off period, the introduction in the Bill of the new regime for the imposition of administrative sanctions on former relevant designated public officials who breach the provisions relating to restrictions on post-term employment as a lobbyist will allow for a major sanction to be imposed of a prohibition from lobbying for up to two years where the commission determines it is required. That is a major departure from the existing practice. At the moment, there is no sanction for anybody who breaches section 22. We are introducing a significant sanction now that I think will have an impact.

I will touch on the question of why the sanction is civil and administrative rather than criminal. This is something to which we gave careful consideration. Again, I know it will be the subject of discussion on Committee Stage. Based on the Department's analysis, the legal advice received and the consideration of international good practice, the policy recommendation that I accepted was that criminal sanctions represented a disproportionate policy response. In line with the advice of the Office of the Attorney General, administrative and civil sanctions were explored and developed. The civil and administrative sanction regime is considered to be an effective and proportionate policy response to what appears to be a relatively low risk of breaching the post-term employment restrictions set out in section 22. Notwithstanding, where breaches occur, however infrequent, they can have a disproportionate impact in undermining public trust. My officials will engage with SIPO on the appropriate resourcing to support this new requirement. It is important to make the point that where civil and administrative sanctions are imposed on an individual for breach of the cooling-off provisions, that will be a matter that will be put into the public domain because, as has been stated, SIPO will go to the Circuit Court, in line with the Zalewski judgment to ensure that it is underpinned with legal certainty.

Therefore, that is an issue that will come into the public domain. I think that, by any measure, that is a significant penalty for any individual in the real world that would directly impact on his or her employability by any other potential employer, if we are to be honest about it.

A few other points regarding the strength of the sanctions and the regime we are putting in place are relevant to this debate. Apart from Ireland, only three EU member states, France, Lithuania and Slovenia, have introduced a cooling-off period in their domestic legislation to restrict the activities that can be performed for a specific period by certain public officials on foot of leaving office. Four other EU member states have introduced cooling-off rules, although not in national law. While Ireland is the only common law jurisdiction in the EU, other member states have nevertheless introduced legal frameworks governing lobbying that include the possibility of administrative fines and lobbying prohibitions being imposed. Such fines and prohibitions, however, do not apply to breaches of cooling-off periods - Ireland is the only member state of the European Union that is placing this obligation on a statutory footing - but instead relate to non-compliance with laws on mandatory registration or the requirement to make lobbying returns. Where other countries are imposing sanctions, it is in the case of non-compliance with the requirement to register and to make lobbying returns. In Ireland, we are going further and putting into law that a breach of the section 22 provisions on the cooling-off period will be the subject of civil and administrative sanctions up to €25,000 and a prohibition on lobbying for a period of up to two years.

Regarding section 22 applications that have been received by SIPO in recent years, it is relevant that we have all the facts and can understand the context of the changes we are imposing. Since the Act commenced in 2015, up to last year, SIPO had received 22 applications for consent under the Act, that is, to have the cooling-off period set aside or waived. There were two applications in 2016, one by a special adviser and the other by an official in a local authority; five in 2017, comprising three by special advisers, one by a senior civil servant and the other by an official in a Department; two in 2018, both from special advisers; two in 2019, both from special advisers; eight in 2020, all from special advisers; and five last year, all from special advisers. There have been three appeals of decisions of the commission under section 22 and all three decisions by the commission to refuse consent were upheld by the appeals officer. There were no instances where the appeals officer's decision regarding section 22 applications was subsequently appealed to the High Court. That information will be of interest and is relevant to the debate we will have over the coming weeks.

A number of colleagues raised issues with access to this House by former Members. It is not for this legislation to determine who can or cannot access this House; those rights to access this House have been clearly established. Nevertheless, where an act of lobbying occurs, that act is the subject of a return irrespective of where it occurred. I agree with the view that has been expressed that lobbying by former Members should not take place here - there are plenty of other places where it can take place - but it is a matter for the Houses of the Oireachtas Commission to determine rules of access to this House and of the activity conducted while those persons are in attendance here. It is not a matter for this legislation but I have put my view on record that lobbying by former Members should not take place within Leinster House. That is my view as Minister and I am happy to put it on the record of the House.

I very much look forward to Committee Stage, to be taken by the Select Committee on Finance, Public Expenditure and Reform, and Taoiseach, and I have no doubt a series of amendments will be tabled, all of which I will consider carefully. I have put a good deal of information in the public domain and on the record of the House. As I said earlier, my officials are available to provide expert advice and analysis to colleagues throughout the House in respect of the provisions of the Bill. We would like to see it enacted over the coming weeks and I will play my part to make sure there are good Committee and Report Stages on which we will consider all the issues carefully.

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