Brendan Howlin (Wexford, Labour) | Oireachtas source

I am glad to be back in the Seanad again so soon.
Active lobbying is an essential element of a well functioning and mature democracy. The purpose of lobbying by individuals or groups is to inform government as to different societal and sectoral perspectives on policy matters and to seek to influence decisions taken at political and administrative level. The institutions of government need to hear from these varying interests in order to make well informed and grounded decisions balancing wider societal needs against the needs, expectations and experiences of varying interests across the economic and social spectrum. The aim of the Bill is, unequivocally, not to restrict this flow of information, opinions, perspectives or proposals feeding into policy making or legislation but rather to bring about significantly greater transparency around this process. There is a strong public interest in identifying "who is lobbying whom and about what". This Bill is specifically designed to achieve this goal, through the establishment of a web-based registration system of lobbying activity.
On a daily basis, interest groups, representative bodies, industry and civil society organisations, NGOs, charities and third party professional lobbyists all provide important input and feedback to the political and public administration systems, through communication of their views and concerns to government. However, they also clearly seek to influence the policy and decision-making process in order to align them to their goals and objectives. These goals and objectives may reflect a private, commercial or sectional interest or what may be represented as a wider public interest or benefit. It is appropriate that this activity is open to public scrutiny as part of the desirable checks and balances in a modern democracy. Such transparency also helps to ensure that any attempt to seek to exert undue or improper influence on the conduct of policy formulation is discouraged and brought under the public gaze.
The reports of the Mahon and Moriarty tribunals have highlighted inter aliathe risk that the legitimacy of the political system could be eroded by the corrosive impact of secrecy and undue influence. The regulation of lobbying Bill is one of a suite of measures which the Government is taking to address, through an extensive programme of political and Government reform, the serious concerns which have emerged in this area. However, since communication is the essence of good policy making, the introduction of lobbying regulation cannot be allowed to obstruct the proper information channels to the political system. 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.
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, the Department sought to engage as many stakeholders as possible in the change process and to tailor the legislation, based on the feedback from that consultation process and from best practice overseas, in order to develop a user friendly registration system which meets the transparency objective, but minimises compliance costs in terms of both time and resources.
We have given everybody time to make an input into this process. As far back as 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 in Ireland. 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 the consultation process was encouraging and approximately 60 organisations and individuals initially submitted views to my Department. A number of these contributors were subsequently invited to meet with officials from the Department to discuss specific issues contained in their submissions. In addition the Department undertook a review of international approaches to the regulation of lobbying. Research was undertaken of lobbying regulation in Canada, USA, Australia and several European countries. The regulations in place in the European Union institutions were also analysed, as were the proposals at that time for the introduction of a regulatory regime in the UK. In preparing my proposals, I have had regard to five Private Members' Bills published on the topic of regulation of lobbying since 1999, four of which were introduced by the Labour Party - several by me - and one Fianna Fáil. The Fine Gael draft lobbying Bill, included in its New Politics document which was published in 2010 was also reviewed.
In July 2012, my Department published a policy paper entitled Regulation of Lobbying Policy Proposals. That 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 on key features of the proposed legislation, including definitions, disclosure, exemptions, exclusions, format of the lobbying register, the lobbying registrar, sanctions, code of conduct, registration fees, the cooling-off period and the review of the legislation.
Following the publication of the policy proposals, a public seminar on the regulation of lobbying in Ireland was hosted by my Department in July 2012, with contributions from myself and Ms Lynn Morrison, Integrity Commissioner of Ontario. This provided an opportunity for a full and frank debate of issues emerging from the consultation process and options for improving the proposed regulatory system. Following the public seminar, a further consultation phase on lobbying took place, focusing on the issues raised at the seminar. My proposals have been carefully framed to take account of the issues raised throughout this exhaustive consultation process. Full details of the consultation process, including all the submissions received and the reports of meetings which took place with stakeholders have been published on my Department's website.
The Bill has also benefited from an informed and positive debate at all Stages in the Dáil. I approach this House with the same openness as I approached the Dáil. I do not believe the Government has a monopoly on wisdom on this. In many ways, all the ground-breaking legislation in the ethics sphere is a work in progress and we will only see in practice how it works. It will probably need to be tweaked in the future. I am open to suggestions and will be happy to accept them and bring them back to the other House when we get to that stage.
A number of changes were made to the Bill in the Dáil and I would like to briefly update the Senators on the more significant amendments. Following consideration of an amendment tabled by Deputy McDonald on Committee Stage, I agreed to revert to the original Title - Regulation of Lobbying Bill 2014 - as this captures better what is intended.The published Bill provides for periodic review of the legislation. The first review of the operation of the Act will be one year after commencement. An amendment was agreed to reduce the second and subsequent review periods, from five year intervals to three year intervals. This more frequent review will allow us to closely monitor the implementation of the legislation, and as we build up knowledge of the operation of the provisions, we will be a position to ensure that any issues arising are more promptly addressed.
The Bill as published requires the Minister to consult with the Standards in Public Office Commission in conducting a review of the legislation and to take into account any relevant report of a committee of these Houses. An amendment was made which will also require consultation with people who carry on lobbying activities and bodies which represent them, along with other persons or bodies the Minister considers appropriate, in the course of a review. I believe that such consultation is appropriate and a proper part of the review process.

Many legitimate organisations such as the Irish Farmers Association, IFA; the trade union movement, IBEC and the vintners organisations have engaged in lobbying and voiced concerns about it. They have legitimate views that should be heard. The Bill, as published, brought within its scope consultant lobbyists acting on behalf of a client, employers with more than ten employees and individuals on development and zoning matters. Any lobbying on matters pertaining to development and zoning is captured by the legislation. An amendment was agreed to ensure relevant communications by representative and advocacy bodies, that is, those established to further particular issues, would come within the definition of lobbying, where the organisation had at least one employee. A further amendment clarifies that the reference to employees is to full-time employees. An amendment was included in order that a definition of “full time employee” would be included in the Bill.

It was always my policy intention that unpaid volunteers would not be captured by the requirement to register under the Bill. This was signalled on its publication. This is primarily to ensure the Bill will be workable from a practical perspective. During the consultation process stakeholders made it clear that, very often, they did not have information on the communications their volunteers were conducting, particularly in a large and dispersed organisation such as the IFA. Their concerns centred on the administrative burden of capturing such information. The IFA is one of the organisations which brought the issue to my attention. While it has professional lobbyists, it also has thousands of individual farmer members who might meet Members of the Oireachtas in the local shop or on a Sunday. If such people mention that they are concerned about the price of cattle, for example, they should not have to be registered as a lobbyist. There must be practicality, which is why voluntary, unpaid members of an organisation are not captured.

From a policy point of view, I am also happy that many of the communications undertaken by local volunteers would not be of a sufficiently high level to warrant inclusion in a public register like this. For example, the Society of St. Vincent de Paul might be very active in local communities and not every volunteer would have to register as a lobbyist. Following consideration of an amendment tabled by Deputy Sean Fleming, I proposed an amendment to clarify that a representative or an advocacy body which existed primarily to take up particular issues would only be required to register a relevant communication where it was made by an employee of the body or a remunerated office holder whose functions related to the activities of the body as a whole.

The Bill, as published, exempts from registration requirements requests from a public service body for factual information to be submitted to that body. Such a request is not deemed to be lobbying. An amendment was made to ensure this exemption also covered requests for factual information directed to a public service body, for example, if a journalist acting on behalf of a newspaper contacted a designated public official to seek factual information on a public policy. We would not want such factual information requests to be captured as lobbying. In the published Bill "public service body" is defined by reference to the Public Service Pensions (Single Scheme and Other Provisions) Act 2012.

The purpose of another amendment was to insert a full definition of "public service body" within the Bill. This will bring greater transparency to the definition included in the Bill. I am now listing more clearly many of the bodies which come within the scope of the definition. Full definitions of "pre-existing public service pension scheme" and "single public service pension scheme" have also been included.

An amendment was made to change the timeframe available to an applicant to make an appeal on a "delayed publication" application from 30 days to 14. A further amendment changes the timeframe available to an appeal officer to make a decision on a "delayed publication" application from 21 days to 14. An amendment was agreed to in the Dáil to ensure that where a person wished to appeal a decision of the commission in respect of delayed publication, the information in question would not be published until the appeal mechanisms were fully completed.

A further amendment was agreed to clarify that the commission had a specific statutory role in promoting awareness of the legislation. This amendment was requested by SIPOC to ensure the role of the commission in promoting awareness, as well as better understanding of the Bill, was emphasised.

I will go through each Part of the Bill. Part 1 contains sections 1 to 7, inclusive. Sections 1, 3 and 4 deal with standard preliminary and general matters, including the Title of the Bill and provisions for its commencement.

Section 2 provides for a regular review of the operation, implementation and effectiveness of the legislation. The first review should be held no later than one year after commencement. Each subsequent review should be held every three years thereafter. Reports on the findings and the 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 consultant lobbyists acting on behalf of a client, persons with more than ten employees, representative and advocacy bodies with at least one employee, and any person on matters of planning or rezoning of land. It defines the communications which constitute lobbying and those that are excluded. It determines that normal citizen interaction with public representatives relating to his or her private affairs 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. It clarifies that unpaid volunteers of a representative or an advocacy body that exists primarily to take up particular issues will not be required to register under the Bill. Representative or advocacy bodies will be required to register a relevant communication only where it is made by an employee of the body or a remunerated office holder whose functions relate to the activities of the body as a whole.

Section 5 also sets out other exemptions to the regulatory requirements set out in the Bill. Such exemptions include those relating to international relations, factual information or other information sought by 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 such as the normal interaction about policy between two officers working in a local authority, which would not be seen as lobbying. 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. I intend to extend the Bill on a phased basis to 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. I envisage, for example, that the requirements will be extended to principal officer level and equivalents within 12 months of commencement of the Bill.

Section 7 defines certain terms used in the Bill. Part 2 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 the 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 protect a person's right to privacy, for example, a person's private e-mail address. 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 for 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 definition set out 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 and this 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 seriously 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. It establishes that on receipt of the application the commission will consult with 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 at that time by that person. In both cases, the commission, SIPOC, 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. 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.
Part 3 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 with interested organisations or individuals. Section 17 allows the commission to issue guidance, particularly with a view to promoting awareness and understanding of the Bill.
Part 4 contains sections 18 to 21 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 the investigation on its behalf. Section 20 provides for prosecution for serious offences under the legislation and the imposition of penalties for those offences. Section 21 establishes that the commission may serve fixed payment notices where an offence has been committed under section 20(1) in relation to the late filing of returns. A fixed payment notice will state the amount, €200, the payment method and payment date. Where payment is made within the timeframe, court proceedings will not be initiated.
Part 5 contains Sections 22 to 26 and covers miscellaneous and supplementary issues. Section 22 provides for certain designated public officials, namely, Ministers, Ministers of State, special advisers, and on commencement 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 role in public employment, within one year of ceasing to be a designated public official. 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 to take up a particular employment.
Section 23 provides for appeals of decisions made by the commission. It establishes that the Minister can appoint a panel of independent appeal officers. Appeals may be made in regard to decisions made under section 10(5) relating to inaccurate or misleading information, section 14 relating to delayed publication or section 22 relating to post-term employment applications.
Section 24 establishes that a decision of the appeal officer may be appealed to the High Court on a point of law. Section 25 provides for an annual report to be compiled by the commission. It sets out the types 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 year. Section 26 makes amendments to the Ethics in Public Office Act 1995 to provide, as appropriate, for changes to the functions of the commission in regard to its new role as lobbying registrar.
The consultation process has demonstrated the intricacy of the issues and the essential culture change arising from the introduction of regulation in this area for the first time. I want to ensure that the correct balance is achieved between the need for maximum transparency in public policy making and the need to avoid unnecessary administrative burdens on those sectors which interact with policy-makers at Government or local authority level. The Bill therefore proposes a review of the legislation 12 months after commencement in light of experience with implementation of the regulatory arrangements.
I look forward to a lively debate in this House on the Bill and welcome the contributions of Senators on its provisions. Once the Bill has passed into law, a period of time will be required prior to commencement of the legislation to enable development of the IT and information systems which will support the registration process. My Department is currently working closely with the Standards in Public Office Commission on these issues. An advisory group has been established composed of relevant experts and key stakeholders who are in a position to provide information and guidance that will assist in the smooth implementation of the legislation. All going according to plan, and with the goodwill of this House, I anticipate commencement of the Act in mid-summer. I propose to table an amendment on Committee Stage relating to the delegation of functions by the commission to members of staff of the commission. That is a request I have received in the last week or two from SIPOC itself and I am happy to put it before the House for consideration.
I would be happy to expand on any of these provisions during the course of this debate. I hope the House will support the passage of the Bill and assist in securing its early enactment. I commend the Bill to the House.