Thursday, 5 February 2015
Regulation of Lobbying Bill 2014: Committee Stage
I want to raise a general issue that has arisen in the context of lobbying in the last week. The Minister has spoken at length and correctly about the establishment of procedures and structures when assets like the national lottery and Bord Gáis Éireann are sold. We welcome that and feel it is very necessary. When I was looking at this week's newspaper reports about the possible sale of shares in Aer Lingus, I read phrases like "charm offensive" and learned that contacts are taking place at all levels of government. I know the Minister has set up a group in the Department of Transport, Tourism and Sport and that is fair enough.
I have put in place a protocol in relation to companies that are in my purview. The company mentioned by Senator Byrne is not one of those companies. For a variety of reasons, it is one of the few companies in which I do not have a shareholding. I have a shareholding in the Dublin Airport Authority. The shareholding in the case mentioned by the Senator is vested in the Ministers for Finance and Transport, Tourism and Sport. I understand that protocols are being applied by those Departments.
I move amendment No. 1:
I will speak very briefly on this. These amendments try to bring as many entities as possible within the purview of the Act. The Minister has gone some way, but we feel there are gaps. These gaps are self-explanatory in each amendment, starting off with appointments to State boards. We have also named a large number of public companies and important regulatory bodies. I wish to know the Minister's view of these amendments before I consider my position.
In page 6, between lines 29 and 30, to insert the following:
“(a) makes, manages or directs the making of any relevant communications to any member of Government in relation to appointments to State Boards,”.
As the Senator is aware, I brought in a completely new arrangement for appointments to State boards. The Government approved this at the end of last year. Serendipitously, this morning I launched the new process in the Public Appointments Service and the stateboards.iewebsite was formally launched. Virtually everyone involved was gathered at the launch. There were a couple of hundred people at it. These were people not only from the State agencies but people from recruitment agencies and organisations such as the Public Appointments Service and the top level appointments committee.
There was a discussion and I was very clear that we want to have transparency on lobbying. However, I also want to encourage people to lobby for a position on State boards. As I said when we discussed it in the other House, this amendment misses the point. We want the National Women's Council, the Disability Federation of Ireland, community groups and so forth to lobby to have people on State boards and for them to say that they have excellent people within their communities. This is an area in which we want openness and transparency so long as it goes through the proper process. This will be through one portal, stateboards.ie. The criteria for appointment will be set out and all applications will be individually vetted and shortlisted for a Minister to make a final decision. It misses the point of the new arrangement to say that this is something which should be done almost in secret and that people should secretly and not in a proactive, open way seek appointment to State boards. This will be done in a completely open way. The National Women's Council and other groups which are under-represented on State boards will be able to lobby formally for their views to be represented. This is part of the broadening scope I wish to see achieved.
I am seeking clarity from the Minister on what he just said. On the previous occasion, the Minister made the point very strongly as well. As one is wont to do, I had some conversations with people about it afterwards. It is still not clear in my own head and perhaps this House is the place to clear it up. The Minister stated that the system that is being put in place will be to send CVs in to the State boards. Will the Minister clarify if that is where it stops? Is there now a clear line of demarcation? To use the Minister's example, once the National Women's Council sends in the CVs of one or two people whom it wishes to get on a board to represent a particular viewpoint from a lobbying perspective, if those from the council meet a Minister in their constituency at an event relevant to the business in hand, will they now no longer be allowed to say that they have submitted the names of X and Y? Further, will the Minister, in a case such as this, no longer be able to respond? Has there to be complete silence on it? Where does the buck stop? I am not clear on this and neither are others. It is important that we clarify this issue.
I will deal with the basics first. In the design structure of this legislation, people who are characterised as lobbyists, which is set out in the Bill in the definition of a lobbyist, are required to register when engaged in lobbying. This is the general architecture of the Bill. On State board appointments, there is a new State boards appointments system in place since the end of last year. All appointments to State boards must go through this process. Candidates must apply through the portal, stateboards.ie, for the specific vacancies which will be set out on the website. The qualifications required for the particular jobs or positions to be advertised will be set out. Applications will be made and those applications will be individually professionally vetted by the Public Appointments Service, as it does for all appointments in the public service generally. It will then present a suitable list to the Minister of people it deems to be qualified for the Minister to make the final selection. This is the process. Should, for example, the National Women's Council, a disability group or any other group wish to say there are not enough women on any board, they are entitled and should be entitled to do this. This is the raison d'être. They meet a Minister and they say to him or her that there is a national obligation to reach the stated target of 40% and this has not happened. They can tell the Minister to get on with it and ensure there are enough applicants. They also can, within the community, seek out applicants. For example, if they want to promote women, they can encourage them to apply through the stateboards.ie portal. I hope this is clear.
I apologise for not going through all of amendments. The scope of amendments Nos. 2 to 14 is wide in seeking to bring all communications within these bodies within the scope of what constitutes lobbying activities in the definition. This is a much broader approach than applies to other public bodies within the scope of the Bill. I understand why the Senator is speaking on this, which is to ensure the framework of the Bill is as comprehensive as possible. This is what I want to achieve.
I assure the Senator that it is possible, under section 6(1)(f) and (g), to prescribe public servants or other public officeholders or a description of persons as designated officeholders for the purposes of this Bill. Persons within the categories of bodies listed in the amendments can be designated as the "lobbied" under either section 1(f) or (g). On North-South implementation bodies established under the British-Irish Agreement, these bodies carry out their functions on an all-island basis and are responsible to the Ministers in both jurisdictions. Consultation of a different nature would be required to embrace them and this can be done.
We have a category of people who have been brought within the scope of this legislation immediately. This is the beginning. There will be other categories. There is a general catch-all category under which I intend, over time, to bring other people within the scope of this legislation. We will be speaking about another amendment in a minute. However, for example, I intend within the first six months for principal officers to be brought within the scope of this legislation. There may be other positions which are lesser in terms of rank but more influential, for example, Minister's private secretaries. People in these positions may have more access to influence in lobbying terms but who may not have a particularly high rank in the Civil Service. We will debate these issues over time. We will get the structures in place first and then we will broaden it as we see fit thereafter.
I move amendment No. 7:
In page 6, between lines 29 and 30, to insert the following:“(a) lobbies the Commission for Energy Regulation and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 15:
I will be brief because this was also discussed in the other House. The proposed exclusion of lobbying by groups with ten or fewer employees, while intended to reduce administrative pressures on small businesses, could be seen to create a loophole for those firms or partnerships who would prefer to hide their lobbying activities rather than comply. If the registration process is available online with clear instructions and is not otherwise onerous, it should not pose an insurmountable problem for those smaller organisations.
In page 7, to delete lines 1 and 2 and substitute the following:“(a) the person has one or more full-time employees and the relevant communications are made primarily to represent the interests of the employer,”.
One of the concerns expressed very strongly by Deputies in the other House and by almost all of the stakeholders we dealt with, was that there should be clarity around who is in and who is out, that is, who is covered by this legislation. That is what I sought to do and that is why we fixed on an organisation with ten employees or more, lest there be any confusion about it. I wanted to avoid a situation where people would not understand whether they were covered or not. For example, we did not want to capture the normal interaction in business that a political representative would make because every Deputy and Senator is covered by this legislation. We had to decide, for example, whether somebody going into a politician's clinic and making a communication would be a registerable issue. We need to have some level of scale to make it an acceptable capturing of lobbyists.
Amendment No. 16 looks at the issue from the point of view of turnover rather than simply the number of employees. The point was made in the other House that a relatively small company with four or five employees might have a big turnover. I was concerned that this threshold would place a burden on lobbyists to submit audited accounts to the Standards in Public Office Commission, SIPOC. Furthermore, turnover is not a fixed entity so a company could become registerable because of a slight increase in turnover over the course of a year, for example. Again, it all adds to the complexity and uncertainty about who is captured and who is not. It also makes it more difficult for the SIPOC to make determinations on companies as it would have to go through the company accounts to see what the turnover was and mistakes are highly likely in those circumstances.
In order to have certainty in this new legislation, which is ground breaking, I wanted to stick to the more clearly understood terms as set out in the Bill. I have said that I envisage this being reviewed after 12 months or so. We will see how it works out and if there is a need for an amendment at that stage, I would certainly approach it with an open mind, as I am sure would whoever is sitting in this seat at that point in time.
I move amendment No. 16:
In page 7, between lines 24 and 25, to insert the following:“(b) communications by or on behalf of an employer, other than a registered person, with not more than 10 employees and less than €10 million of an annual turnover, relating to the affairs of the employer about any matter other than the development or zoning of land under the Planning and Development Acts 2000 to 2014;”.
I move amendment No. 17:
I wish to withdraw this amendment now and table it again on Report Stage because there is an error in it as published. I had intended that communications by international non-governmental organisations would be excluded from the category of excepted communications. Perhaps the Minister had a response prepared to the amendment as published and I apologise if I have wasted his time in that regard. Clearly, my view is that while it is appropriate that excepted communications would include communications by or on behalf of the European Union, the United Nations or any other international organisation, I do not believe that should also apply to international non-governmental organisations. That was the focus of my amendment and I apologise for the typographical error that crept in there.
In page 7, line 27, after “organisation” to insert “including international non-governmental organisation”.
I ask the Minister to explain why international non-governmental organisations would not be included within the exceptions. That would be of great help to me because I was contemplating bringing forward an amendment on the matter on Report Stage.
The exceptions are international organisations, as defined in section 7 by reference to section 186B of the Social Welfare Consolidation Act of 2005. I am sorry to send the Senator to that particular Act, which seems like an odd place to look for a definition of international organisation. In that definition, which is captured in this legislation, the exempted organisations would be the United Nations, the institutions and agencies of the European Communities, the Council of Europe and the Organisation for Economic Co-operation and Development.
I move amendment No. 19:
I must start by saying that I agree completely in principle with the purpose of this Bill. Politics depends on trust and public trust in our political institutions is essential but as we all know, it has come under a lot of pressure in recent times. There is something profoundly alarming about political cartels exercising undue influence over Government decision making and any situation that involves private gain going before national interests is very alarming.
In page 8, between lines 24 and 25, to insert the following:“(p) any communication, howsoever made, by a person specified in subsection 2(b) and 2(c) where the purpose of that communication is to disclose relevant wrongdoings.”.
This Bill has been a long time in the making and is generally welcome. I would like to commend the Minister on his expertise and his good work in this area. However, there are some areas where I feel the Government has not given due weight to exempting certain vital communications from the general definition of lobbying. It is on that basis that I am seeking to amend section 5 of the Bill which deals with excepted communications. The amendment I am proposing is reasonable and would allow the Bill to reflect that certain types of communication of concern should be protected from disclosure for the reasons I will set out.
I am seeking to amend section 5, subsection (5) by inserting a new subsection (5)(p) which would read, "any communication, howsoever made, by a person specified in subsection 2(b) and 2(c) where the purpose of that communication is to disclose relevant wrongdoings".
Furthermore, my amendment invites a consequential amendment to section 5(9), which sets out the definition of terms in section 5. This amendment is to include a definition of "relevant wrongdoings" and is a necessary addition if my amendment to section 5 proposing the insertion of subsection (5)(p) is accepted.
The amendment to section 5(9) would define "relevant wrongdoings" exclusively as follows: the commission of an offence; a miscarriage of justice; non-compliance with a legal obligation; health and safety threats; misuse of public moneys; mismanagement by a public official; damage to the environment; abuses of constitutionally protected rights; or concealment or destruction of information relating to any of the foregoing. In terms of the rationale for this, section 5 deals with accepted communications - in other words, communications that would not be deemed to be disclosable lobbying communications or activities. It is prudent to have such a list, in particular, where matters of diplomacy or State security would be otherwise exposed to inclusion as lobbying activity and therefore potentially subject to disclosure.
My amendment seeks to protect organisations and individuals representing those organisations who come forward with information concerning wrongdoing from inclusion under the heading of lobbying. As the section stands, I have a serious concern regarding the protection of sources of information, particularly where an organisation may approach an Oireachtas Member with confidential information about actual or alleged wrongdoing. I have excluded the persons envisaged in section 5(2)(a), as the Protected Disclosures Act 2014 - the whistleblower legislation - makes provision in a fuller manner for protection for employees making disclosures regarding relevant wrongdoing. The statutory protection against victimisation in that Act is very welcome.
The purpose of this amendment is to exclude certain communications made by persons from organisations that would normally be considered to be engaged in lobbying - for example, unions, representative organisations or non-governmental organisations, NGOs. As matters stand, persons from these organisations, on behalf of their organisation, may approach Oireachtas Members with information regarding wrongdoing in the public interest without the suggestion of lobbying. I fear that if this amendment does not carve out a specific exception for such information, organisations such as those listed may be reluctant to come forward with information as, in doing so, they may be identifiable under the relevant provisions of this Bill.
There is a subtle but importance difference between the understanding of lobbying - that is, to change official discourse or decision-making on a given issue - and disclosure of wrongdoing, which has the aim of serving the public interest by exposing actual or alleged harmful behaviour. If an organisation or person acting on behalf of that organisation felt the need to protect a source, whether they be an individual or a group of individuals, and that organisation or person reasonably believed that the only guarantee of anonymity was to deny that they had met an Oireachtas Member, if questioned by the Standards in Public Office Commission, SIPO, or any other organisation, then their denial would be in breach of the provisions of this Bill. However, with my amendment, the communication of wrongdoing would be protected from the description of lobbying and protected from the attendant requirement of disclosure that this Bill entails.
Furthermore, I believe that persons or organisations must have a right to approach legislators in a free society with information about wrongdoing - this is in the public interest - and to be able to do so without having to reveal themselves and thereby potentially reveal their sources of information. In certain cases, the knowledge that a particular organisation approached a particular person amounts to a destruction of anonymity where something in the public interest is being revealed. This right to protection from disclosure can be defended by an analogy with similar rights enjoyed by journalists, which are protected in law.
While I agree that the Government and the Executive should be held to a standard of full disclosure, the same standard applied to Oireachtas Members in the course of their duties will damage the confidentiality that is necessary to expose wrongdoing and highlight potential abuse of public funds. I look forward to the Minister's response.
I genuinely and warmly thank the Senator for both the amendment and his contribution. It made me think again about the Bill. It is certainly is not and never was my intention that matters which are basically an essential part of whistleblowing would be or could be relevant matters to be registered under this Bill. That is my understanding of the situation in the Bill. Having reread closely section 5(9), which defines what relevant matters are and what is a disclosable communication, I would point out that the relevant matters under section 5(9) are matters relating to the initiation, development or modification of any public policy or of any public programme; the preparation or amendment of an enactment; or the award of any grant, loan, financial support, contract or any other agreement, or of any licence or authorisation involving public funds, apart from any other matter relating only to the implementation of any such policy programme, enactment or reward or of a technical nature. My advice is still that this achieves what I intended, and what Senator Mullen intends as well, but, for the avoidance of any doubt, I have written again to the Attorney General to be clear that this is achieved. If there is any doubt in the matter, I propose to bring any amending proposal to this House on Report Stage next week. As of now I am satisfied that all the genuine, good and proper concerns raised by the Senator are fully met, but, for the avoidance of doubt, I have asked that this be confirmed formally by the Attorney General to me, and if there is any doubt, or even a shadow of a doubt, I will bring forward an amendment to the Bill next week.
I thank the Minister very much for his open and thoughtful response to my amendment. An issue arose during my time in the Oireachtas which might illustrate the concern I have and which may be of assistance to the Minister and his officials. I think it is probably on point, but I would welcome the opportunity to tease it out with the Minister further, although not necessarily in this immediate forum. The Minister will come back with his response and we will look at what might happen on Report Stage. Speaking from memory, a number of years ago the former Minister for Defence, Deputy Shatter, brought forward legislation in regard to defence which had to do with the appointment, and the criteria for appointment, of military judges. I came to have information - other Members, including Senator O'Donovan, were also familiar with the issues involved - that in effect, the legislation was designed to undo a problem that had occurred whereby the person that the Defence Forces leadership proposed to appoint to a particular position could be said, it seemed, not to be technically qualified for the position. As a result, legislation was brought forward which widened the criteria and, in effect, would have retrospectively enabled the appointment process to open up again and to facilitate, under the new headings and under the new legal requirements, the appointment of the particular person. It did not come to pass that this particular person was appointed to the job in question. That probably had to do - excuse my language - with the stink we created about this issue in this House. There were two issues. The first was that the then Minister, Deputy Shatter, did not disclose to us - nor were Members of the Oireachtas briefed to this effect - the back-story of that legislation to widen the criteria for appointment of military judges. The other issue was that a proposed appointment had gone wrong and an issue had been raised internally within the Army about whether that person could be appointed to that post. My point is this: if I had not been briefed by certain persons that this was the back-story, I would not have been able to do my job as a Member of the Oireachtas and ask hard questions, not only about the content of the legislation but about why it was before us in the first place. I was subsequently contacted by the military police, as was their right and duty, to assist them with their investigation of a possible leak from the Defence Forces and so on in breach of the law, and obviously, with due regard to my prior duty as a Member of the Oireachtas, I declined to make any statement. I still have not made, and I will not be making, any statement about where I got the information. If that information, for example, had come from a representative body, it seems that this kind of disclosure by a representative body would attract attention.
We should remember that this was a disclosure made to enable me and other Members of the Seanad to challenge legislation, policy and the initiation, development or modification of what was public policy or a public programme, namely, the bringing forward of legislation around making certain State and State-funded appointments. It was exactly that kind of situation I had in mind when bringing forward this amendment, namely, that people concerned about certain legislation being enacted, which they believed was in furtherance of some agenda which was not being fully disclosed, would not be in a position to approach me if they had to register as lobbyists because they were approaching me in order to get me to oppose certain legislation. I would be happy to say more to the Minister privately about the circumstances but the memory of that instance caused me to look with particular concern at the Bill as it currently stands. It is difficult to talk about it in retrospect given the need to protect those who disclosed information to me. In the light of that personal experience I am concerned about the Bill in its current form. I look forward to possible engagement with the Minister in that regard.
The Senator is somewhat luckier than me. When I received information of that nature I had to fight the case both in the High Court and the Supreme Court to protect the person who disclosed the information to me, as I thought was right and proper in relation to my duties as a Member of the Oireachtas, and the right of any citizen to contact any of us. It was for that very reason that when I came to my current position I was able to advance a suite of proposals that overlap and interact that will achieve the current objectives of Senator Mullen that I had at one time. The Protected Disclosures Act is now part of the legal architecture of the country and will protect individual whistleblowers who disclose information from any procedural wrongdoing or maladministration of the type Senator Mullen instanced without putting themselves under hazard. In addition, the strengthening of freedom of information legislation will allow the probing of any documentation on these matters and to have full disclosure of the procedures that are going on.
This Bill will not, for the very reason we talked about in the course of debate on a previous amendment, capture individuals who want to come to individual Members of the Oireachtas with their concerns or other information in terms of what is considered normal advocacy because citizens are entitled to have an opinion on legislation. The suite of measures I brought forward, particularly in the past two years, have vastly improved the landscape in relation to transparency, proper procedures and the protection of any individual who wishes to bring into the public sphere any malpractice, malfeasance or wrongdoing that needs to be addressed.
I move amendment No. 21:
Fáiltím roimh an Aire. Táim ag tógail é seo ar son mo chomghleacaí, an Seanadóir Reilly. In section 5(9), we seek to delete the words “apart from any matter relating only to the implementation of any such policy, programme, enactment or award or of a technical nature". Our view is that implementation is a crucial stage of public policy and can make all the difference to its success, failure or overall character and impact. The implementation stage is very frequently the subject of lobbying and we do not necessarily accept its exclusion from transparency and the reporting requirements. This clause introduces another potential loophole in the law and, as such, it is not the proper way to proceed. That is the reason we propose the amendment.
In page 9, to delete lines 13 and 14.
Again, this was a matter we discussed in the other House. When framing the legislation, a number of options were considered in terms of how other countries define lobbying in legislation. The initial landmark legislation in Canada defined lobbying as attempting to influence public policy. That was the way other countries were going to go. However, that was found to be a very confining definition because in point of fact, in law, to prove that one was attempting to influence became an obstacle. Canada subsequently amended its federal law to change the definition from "attempting to influence" to "any oral or written communication made to a designated official". The definition used in the Bill is therefore the broad definition rather than the narrow one. We need to be more explicit in terms of exemptions to ensure that with such a broad definition, we do not capture all communications that would make the entire procedure inoperable, that all communications between officials and anyone else involved would be subject to the legislation. It would be bizarre if every time a Senator, for example, met someone in the pub it would be considered lobbying. That is the reason we set out in section 5(9), which I read to the House, what are deemed to be “relevant matters”. It is what we intend lobbying to be, which is matters relating to “the initiation, development or modification of any public policy”, “the preparation or amendment of an enactment” or a piece of law, or “the award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds”.
Yes, even in a pub. I did not mean to say that there are some places that would be exempt. It is just the type of activities that would be exempt. If one did not have the narrowing of the definition to areas that we understand to be lobbying, and we had everything defined as lobbying, there would be no end to it in terms of what everybody would have to register. One would not see the wood for the trees. We need to find out what real lobbying and influence is and to do that we need to have a clear definition of what lobbying will be. That is what is achieved. Looking at international best practice, I think that is achieved in the Bill.
Last week on Second Stage I said that we have probably taken more feedback on the legislation from stakeholders than on any other legislation because, in a way, although it is probably seen by many as not as important as the Freedom of Information Act or even the other related legislation, in a way it goes to the heart of what politics is about, namely, the interaction of public organisations with policy-makers. We wish to facilitate a proper democratic interaction. We wish to do that in a transparent way but we do not want to make it hidebound such that it would be impossible to do public business. For those reasons, I do not propose to accept the amendment.
I seek some information on the matter. First, I am surprised at this part of the Bill because I would have thought that these matters should be more appropriately dealt with in the definition section at the beginning of the Bill, but I see that there is not such a section.
The second point is that the two lines referred to in the amendment, if I am correct, mean that it exempts the implementation of policy from the operation of the Act. I would have thought the implementation of policy is just as important as the policy itself. In fact, that is where the real nub of the situation lies. Perhaps I am interpreting the Bill incorrectly.
No, Senator Norris is not. Implementation of policy is exempt. The whole idea is that the actual formulation, development and decision-making of what is to happen is what is covered, but once it is covered, the roll-out of the policy is not covered by the legislation nor was it ever intended to be. Neither is it covered in any other legislation of this nature of which I am aware. The other exemption relates to matters of a technical nature. The Senator is correct that these areas are exempt.
In that case I fully support the amendment because it seems to me that this is the where the crucial matter lies. Policy is one thing but sometimes a Bill is not signed by the President or it is delayed on Report Stage in the Dáil having been through the Seanad. What is crucial is when a measure is working on the ground. One can imagine the tobacco companies, for example, coming in about the implementation of a policy and, having failed to scupper it at the stage of policy development, they might then attempt to scupper it at the phase of implementation.
Consequently, I think it is quite important that implementation be included. While I gather this will not be a position that will be favoured by the Government, it definitely is what I think.
I move amendment No. 22:
These amendments are self-explanatory and are designed to immediately bring the class of officers specified in the amendments within the ambit of this legislation. The Minister has stated his intention to bring in these people gradually and that he will adopt a gradualist approach. However, he has not convinced me there is a logistical reason or a cost issue to prevent them from being brought in at once. There does not appear to be a major issue preventing this from being done at once.
In page 9, between lines 22 and 23, to insert the following:“(f) Secretaries General and Assistant Secretaries General;”.
The Minister made the point that sometimes, the top-level officials do not have all the power or say-so on nitty-gritty matters. I make the point that chief executive officers of local authorities and many directors of services have more power in day-to-day matters than does the Minister himself or than do Secretaries General or assistant secretaries in terms of what they can implement. The chief executive of a local authority effectively has absolute power within that local authority and such officers certainly should be brought within the ambit of the legislation. I am unsure whether the Minister has outlined his position in respect of them but they should be brought in immediately as they are at the same level as Secretaries General and assistant secretaries. As for principal officers and private secretaries being brought in, although I have lobbied a private secretary about a school or similar matters, I find it hard to imagine-----
No, I am not but I find it hard to imagine lobbying of private secretaries being carried out within the terms of this Bill. I suppose it is possible but in practice, I cannot really envisage it. However, I consider senior local authority staff and people at assistant principal officer level and above to be crucial and it is very important that this be implemented as soon as possible.
I wish to raise a general point that I omitted to mention at the end of the debate on the last section. Perhaps this will come up later but I refer to the lobbied having a responsibility to tell people they should register. While I acknowledge we are not obliged to tell people, is there guidance or guidelines available? If someone makes an approach and is lobbying me, it might be useful in some cases to be obliged to remind the lobbyist that he or she should be registered because he or she might not then come back, which might suit all concerned. I do not know what help or guidance the Minister can offer in those circumstances.
I favour this amendment because it appears to address the question of what is called the permanent government, that is, those people who are there all the time and are central to the formation of policy, particularly Secretaries General, assistant secretaries, principal officers and so on. I notice that under section 6(1)(f), the Bill describes public servants of a prescribed nature but the Bill does not actually provides details. It simply states "public servants of a prescribed description" but not what that prescription is, who it covers and so on. I presume it is left for the Minister to make this by regulation. However, it would be valuable to have it in the Bill.
Sinn Féin is of a similar opinion in that it is known that all three of the categories in our amendment regularly are on the receiving end of lobbying. The ones mentioned in amendment No. 27 are senior public servants between the ranks of Secretary General and principal officer, regulators and management boards of public bodies. I was part of a fisheries delegation to Brussels recently and many people in the fisheries industry, for example, are of the opinion that there are certain key players in the fisheries industry who lobby senior departmental officials on a regular basis and that the policies of certain Departments almost mirror the needs of the bigger players and those who appear to be closer to the people who have influence. The types of people I am talking about here are people of influence in policy-making. While Ministers have the final say, if one looks over a number of years and different Ministers in a Department, one often discerns that the trend in a Department tends to continue, even when the Ministers come and go. Senior public servants certainly have a key role in the development of policy. I appreciate the Minister has empowered himself to include these categories as designated public officials but Sinn Féin cannot discern any reason not to include them at the outset for the thousands of doubt in this scenario. This is why Sinn Féin has tabled amendment No. 27.
I thank the Senators for their contributions and amendments and I understand their concerns. The idea is that the Government will set out a number of designated public officials that will be captured from the outset. These include Ministers of the Government and Ministers of State, Members of Dáil Éireann and Seanad Éireann, Members of the European Parliament for constituencies in the State, members of local authorities, special advisers appointed under section 11 of the Public Service Management Act and then, in the point on which Senator Norris and others have focused, public servants of a prescribed description. That deliberately is a catch-all phrase because no matter what list I put down today, people would have suggested there was another category I should have included.
For example, if one takes the grade of assistant secretary, there is an entire range of analogous grades of assistant secretary across the public service, some of which are of a technical nature, such as chief medical officers and a variety of other assistant secretary level grades. However, they do not lend themselves to being listed in one exhaustive item of primary legislation. That is the sort of thing that normally is done by secondary legislation, that is, by statutory instrument, and that is what I wish to do.
In my opening statement, I already have indicated to Members that from the outset, I intend that Secretaries General, assistant secretaries and equivalent grades be captured, as well as analogous grades in the local authorities, including chief executive officers of local authorities. Within 12 months, I intend to bring in principal officers and then we will have a debate to decide on what other suitable categories should be brought in. This is designed not to try to be exhaustive from the beginning but to be enabling of a gradual broadening, while capturing from the beginning the key set of policy-formers both, as Senator Norris described, in the transient Government and the permanent government, in so far as possible. However, other grades may occur to us that would not occur to us as being particularly high-profile but which may be quite influential and which should be subject to designation under the legislation.
I did not answer Senator Byrne's question on the communications message, which is very important. This morning, I launched the StateBoards.iewebsite at which, I do not think he will mind me mentioning it, I had a private discussion with the Ombudsman on the operation of this legislation. A huge amount of work already is under way with my officials and the Standards in Public Office Commission, SIPOC, in the preparation of this measure because part of the job of the SIPOC will be the communication of this legislation to people. Many changes have been and are being brought about in respect of freedom of information, lobbying and so on that must be communicated to people now and Senator Byrne makes valid points. We will have a communication strategy and SIPOC will be given responsibility to ensure that people are aware of the new responsibilities once this measure becomes law of the land.
Again, while I can understand the Minister's position, I make the point that he himself has listed off people who he thinks clearly should be on it such as Secretaries General, assistant secretaries and so on. As they already are targets, I am unsure why they should not be included in the Bill. How will one know who is caught by this measure if it simply is left in the general phraseology currently in the Bill? Moreover, if the Minister can do this by ministerial regulation, there is nothing to stop him from doing it in the Bill itself. I am familiar with the argument that frequently is made in terms of describing categories to the effect that there is a problem about being exhaustive and catching everybody. However, that could be remedied by another provision stating "such other officers as the Minister shall prescribe from time to time". However, I see no reason that Secretaries General and assistant secretaries, who have been mentioned by the Minister as clear targets, should not be listed in the legislation.
It is not an overwhelming point, because apparently these people are going to be dealt with at some stage - some of them now and some of them in a year's time. If the Minister can list them off - he has listed them off to the House already - I do not see why they cannot be listed in the Bill. Otherwise, one could say "prescribed political representatives" rather then Ministers, Members of the Dáil and Seanad, Members of the European Parliament, local authorities and so on. There is quite a strong argument for this amendment.
I move amendment No. 27:
In page 9, between lines 22 and 23, to insert the following:“(f) Senior public servants between the ranks of Secretaries General and Principal Officer;
(h) Management Boards of public bodies.”.
I move amendment No. 28:
The amendment could be called the Davos amendment, because it covers that type of activity. We mentioned "public official". The Taoiseach goes to Davos but it is quite commonplace that people are brought abroad. We know that when incinerators were being brought into the country there were all sorts of trips all over the world to examine incineration. I am sure that companies lobbied various people. I have no particular project in mind, but this sector is one example I am aware of. It is important that this type of lobbying is recorded in some way. Public officials do not spend all of their working lives abroad. If they do go abroad, it is only a small part of their job. If they are lobbied while abroad, within the meaning of this Act, it is not unreasonable to turn the tables as such and turn over the responsibility.
In page 9, after line 35, to insert the following:“7. (1) Where a designated public official is lobbied outside of the State, (in a manner to which section 5 would apply had the lobbying activities occurred within the State) such public official shall be obliged to register the fact that he or she had been so lobbied and the public official shall provide the necessary information to the Standards in Public Office Commission for inclusion in the register.
(2) Provision for maintaining this category of information shall be kept in such form as the Commission consider appropriate.”.
As I have mentioned before, some sovereign states lobby as well. Perhaps I will re-jig my amendment to include a sovereign state. There are sovereign states that lobby Members of the Oireachtas on a regular basis, as I am sure the Minister is well aware. It is not particular to him, but we are all aware of such lobbying. Some of that lobbying should be registerable. We need to know for what purpose Members are being lobbied and what is going on. If this legislation and my amendment are put in place we will have the complete transparency required.
Dealing with international organisations or countries or being abroad is an extremely small part of any public official's role. Therefore, my amendment is not unreasonable or burdensome.
I also support this amendment because, for example, of the operation of multinational corporations, which have their tentacles everywhere. If they are prevented from lobbying in this country they may very well seek the opportunity of some kind of political meeting abroad to tackle public officials. This is a very reasonable amendment and I support it.
I think I am right in saying that sexual offences against minors in foreign countries are now captured in Irish legislation. I am not sure whether that legislation has gone through, but I think it has. I know it was mooted. Such legislation, including the Bill before us, seems to me to be a good idea.
The intention of the Bill is that lobbying activity be regulated through registration and reporting requirements, the responsibility for which lies on the lobbyist. That is the architecture of the Bill. If I am a lobbyist and I am going to lobby somebody then I must register. This amendment reverses that, which means that if it happens abroad, responsibility falls on the lobbied.
I have said, all the time, that we need to be practical about this matter. It would mean that every time I went to Brussels or elsewhere on Government business, if anybody wanted to come up to me for a chat, I would have to ask them whether they were registered under the Irish legislation on lobbying and whether they fell within its parameters, and I would have to take their details before I talked to them to make sure they were registered. That would be so impractical in view of the normal activity of European Council, where the people who attend meet officials and so on. It would fall to every Member of this House to do so as well. It would not only apply to those attending an informal meeting of the European Council or anything else; if Members or officials were abroad on holiday and somebody talked to them or engaged them in conversation, they would have to have that type of discussion. I do not think that can realistically be done. I do not see how designated public officials could meet those requirements. One would trap people who inadvertently said "I talked to Senator Norris about that matter when I was abroad." A person who did not remember an informal conversation with someone at some gathering or other would find him- or herself on the wrong side of the law. The Bill is simple and transparent, and I do not want it to set traps for people in regard to this matter. I just think it is not practical to achieve what Senator Byrne has set out in his amendment.
The Bill does not stand alone. It complements other transparency arrangements that are already in place to ensure that accountability is achieved - the freedom of information legislation, the open Government partnership initiative, the ethics and standards in public office legislation. All of these exist to address any improper activities that might go on without imposing impractical or unworkable requirements on people.
While I fully appreciate what is intended by the Bill, I do not think we should transform what is an eminently workable, practical piece of legislation into something that is not workable and might in fact bring the legislation into disrepute.
I understand the Minister's position and that he must deal with practical matters. To take a common-sense view, there is a substantial difference between a casual conversation when one is on holidays and deliberate lobbying.
I ask the Minister to consider this amendment further. I am sure Senator Byrne is not precious about the wording and I am sure he would accept something that the Minister had dollied up. For example, the Minister could add in the phrase "in the course of official business," which would exempt holidays and all the rest. In fact, registration is not a very serious burden. It is just registering the fact that a person has been lobbied. It does not contain the content of the lobbying. That is a reasonably simple thing to do. Taking into account what the Minister has said, there could be some form of words to show that it was a designated official who was involved. Cut out all this stuff about casual conversations around the swimming pool of a hotel in Santa Ponsa. I have never been, but I gather it is an awful place.
I ask the Minister to consider the following scenario. A group of councillors go to England to meet representatives of a UK-registered company that owns land here and in the UK, and that company lobbies them about rezoning in Ireland. What is the provision for this in the lobbying legislation?
I take it they would not arrive in England without being contacted in Ireland. If they are invited and lobbied in Ireland to go to England, then that obviously is captured.
There would be a legal obligation on that company to register because it is lobbying me in the Irish jurisdiction and it is captured by Irish legislation.
As I understood Senator Byrne's original intervention, it was to capture people who went to a conference and were lobbied there by a company that had Irish interests. It would be lobbying on behalf of business operations in Ireland but, geographically, this might happen in England.
I have already answered the point as I do not want to reverse the structure of the Bill. I presume what the Senator is referring to would take place in Northern Ireland, for example. Some Members in the House may live in Northern Ireland so when they go home and speak to neighbours, they could find themselves captured by the legislation. It is not practical to reverse the core of the Bill, which is a requirement simpliciterfor lobbyists, as defined in this Bill, to register. To reverse this and put a burden on anybody who is a designated recipient of lobbying under this legislation to be the proactive registrant, would change the structure of the Bill. It would be burdensome for Members of these Houses and all public officials if they had to monitor all conversations to ensure a person talking about public policy is registered under this legislation. The onus and burden should be on the lobbyist, and that is my intention.
I accept, to some extent, the practical difficulties mentioned by the Minister. This is a real issue. There are groups of politicians who go abroad to meet people from companies coming to Ireland. Sometimes there are issues of land and other times there are other relevant policy issues. On the other side, one might be on holidays and just bump into somebody. Perhaps there is a practical solution that could come from the Department or the Oireachtas. One solution may be to make some requirement when an official delegation goes abroad that a designated official would be tasked with recording any lobbying. That might not be perfect.
It would not be perfect but it would give responsibility to somebody to record any lobbying. Otherwise, there would be carte blanche. There could be hundreds of other suggestions of how to deal with this and somebody could be given the job of recording what, if any, lobbying takes place when one is on official business. We do not envisage this applying in Santa Ponsa or the Isle of Man, although somebody from the Isle of Man lobbying on banking law would not be covered by the definition if the lobbying happened in the Isle of Man. There may be some middle ground covering official business abroad at the very least, even if we do not manage to include holidays, etc.
I suggested wording like "on official business". That would cover it without changing the Bill at all. It adds to the provisions rather than changing them. This would not reverse the flow of the Bill. This Government cannot presume to dictate the conditions of work of employees of a state in a foreign country but it can determine the behaviour of Irish officials on official business while abroad. I am not impugning the reputation of any company but Guinness, owned by Diageo, comes to mind. If it wanted to keep its feet clean in Ireland, its representatives could always lobby Irish officials abroad. All this requires is registration of the fact that there has been lobbying, and that is not very detailed and it would not take very long. It is not an onerous requirement and it would have nothing to do with conversations on holiday. This would relate to official business when, for example, a multinational corporation would try to lobby an Irish official in the interests of the company's operations in Ireland. It is a reasonable proposal that does not alter the thrust of the Bill at all. It would not change the Bill but it would add an element in circumstances where it is impossible to force the company in Britain, America or Europe to register as lobbyists. At least we could capture the fact that Irish officials would have been lobbied while abroad. It would be useful information and I do not see why the Minister should be so obdurately against it. He has the numbers for any vote in the House.
I would not like to leave the challenge of obduracy on the record. I have been very open to any suggestion and I have thought carefully about every amendment. I want this to be practical. I have indicated to the Senator that we cannot see this piece of legislation in isolation. Irish officials abroad are subject to the Standards in Public Office, SIPO, Act. I may have heard the Senator decry that legislation as almost an example of a nanny state's actions in some instances.
As with many enactments, it was described as intrusive, overarching and the actions of a nanny state when it affected certain people but proper, thorough and correct when it affected everybody else. The Ethics in Public Office Act and the freedom of information legislation gives insight into any improper activities that might occur. I want to make this as practical as I can for the reasons I outlined. One cannot parse what some believe as unacceptable lobbying and others would see as casual discussions to be excluded. The definition of lobbying is set out and all such conversations are captured. That is the simple way in which the law is set out. One cannot argue that acts which somebody regards as unacceptable must be reported but everything else is excluded. We do not have a definition to be captured by that.
This is groundbreaking legislation and best-in-class by international comparison. That is acknowledged. I ask Senators to allow it be enacted and take its course, and if we need to strengthen it in future, we can do so. If we get what is captured by this Bill on the Statute Book and in effect, we will have made an extraordinary advance on where we are now.
I have another comment as I have been tempted by the Minister's mention of choosiness in the operations of the Standards in Public Office Act. I am certainly choosy and I spoke on the Order of Business about the requirement to clock in with fobs. The Minister does not have to do that.
Elected Members have to do so. We are continuously told that in this technological age, one can work from home, on the plane, a train or a bus. Nevertheless, we have to be chained to the kennel like puppies. One must account for allowances through vouching. I know the Minister is enthusiastic about this and it was all fine for him when he went about extinguishing the leaders' allowance. That concerns Independent Members in both Houses. They cover a wider range and they have extra work.
The Minister spoke about things being unacceptable. Nowhere in the amendment is there a question of subject matter being recorded; it is just a case of noting the fact that lobbying has taken place. The amendment will clearly not be accepted so I will leave it at that. We are entitled to know in principle if a public official has been lobbied while abroad. I am not at all confident that this will be captured by the SIPO legislation, as I am not a bit confident in it, not in the slightest.
I will withdraw the amendment and return with something slightly different based on what Senator Norris and others have said. If an amendment similar to this is not accepted, the old catchphrase of "what happens in Vegas stays in Vegas" will turn into "what happens in Davos stays in Davos". That should not be the catchphrase for the Bill.
I move amendment No. 30:
I will speak briefly about these amendments before withdrawing them in order to raise them again on Report Stage. The amendments would affect companies and individuals including EirGrid, Ervia, An Post, the Railway Procurement Agency, members of An Bord Pleanála, members of the Competition Authority, directors of the Environmental Protection Agency, the Revenue Commissioners, Revenue appeals commissioners and "any position with the word regulator in its title". I am proposing to withdraw all of these amendments so we can have a fuller discussion on Report Stage.
In page 11, between lines 4 and 5, to insert the following:"(l) EirGrid Plc.,".
I move amendment No. 40:
I have been in communication with the Minister since Second Stage in relation to this amendment, about which I will speak briefly. I have tabled it to ensure we are all absolutely clear about the intentions of this Bill. I was surprised to read an article in today's The Irish Timesin which one of my colleagues suggested that this Bill could promote a culture of secrecy. I think the exact opposite. I suggest it was unhelpful, to say the least. A former US Supreme Court Justice, Louis Brandeis, once said that sunlight is the best disinfectant. I think that is what this lobbying Bill is about. I want to ensure businesses, civil society, non-governmental organisations and others have equality of access to our politicians and officials. It is something on which I pride myself, as a Member of the Legislature here in Ireland. I remember being involved in youth work at European level as a young person in my 20s. I looked at the excellent access we have in Ireland to our public officials, our Legislature and our politicians. We want to ensure it is done transparently and openly and not in such a way that anything is done behind the scenes. My understanding is that the intention of this Bill is to ensure we change that culture. Only so much can be done by legislation. As Senators and Deputies, we have a role in supporting the cultural shift that is also needed.
In page 12, between lines 11 and 12, to insert the following:"(2) Inclusion in the Register established under this Section shall not be construed by any Minister of the Government or any public body as extinguishing or limiting or otherwise affecting in a negative manner the entitlement of any person or body so included to apply for or to be considered for any of the matters referred to in section 5(9)(c).".
I have tabled this amendment because there is a concern that appearing on the register of lobbyists will have a negative impact in terms of perception. I do not want to speak for the Minister, but I know we are trying to ensure lobbying is not a bad word. I believe we engage in lobbying because we care, we want to see change and we want to advocate for change. If people are engaged, that is something positive. I often think that if people say nothing, perhaps they do not care. We want to ensure people can lobby. I do not want organisations that are on the register of lobbyists to be disqualified in some way from consideration for grants. If this legislation discourages people from getting involved, it will be counterproductive. I would like the Minister to give the House a clear statement on the intention of the Bill in respect of the amendment I have tabled. If we are in agreement, I hope the Minister, who spoke earlier about the communications strategy, can clearly instruct his ministerial colleagues and the public bodies that grants and lobbying are not to be linked. I do not think they should be linked. One should not be prohibited from getting a grant just because one is on a lobbying register. Both activities should be done in full transparency and openness. I am not asking for any secrecy. We should not say that one excludes the other. That is my intention in proposing this amendment.
While I understand Senator van Turnhout's concerns, it seems to me that nothing in the Bill actually suggests that a person who is registered as a lobbyist would be prevented from getting a grant. I think the concern is understandable, but I do not think it is supported by a close reading of the Bill.
I have spoken in rather negative terms about lobbying, as others have done, but I appreciate that there is also very good and informative lobbying that assists in the political debate. I do not see any reason somebody who is registered as a lobbyist should not be able to apply for a grant. I understand where Senator van Turnhout is coming from, but I do not think her concerns are reflected in the text of the Bill. I welcome the opportunity to mention on the record that there are some very good and very valuable lobbyists. I am concerned about the multinationals, the big cigarette corporations and the drinks industry. These sorts of people have a disproportionate influence. It is very often under the radar. We want to expose that. Of course those who lobby for sports or recreational facilities for inner-city children should get their grants. I have no problem with their lobbying to get grants. That is what it is all about. That is part of the political process. It is useful that Senator van Turnhout has proposed this amendment to have this matter ventilated. I am quite sure the Minister will say that the penalising of lobbyists in this fashion is not contemplated by the Bill. I presume his words would have effect and could be quoted in any court case that might arise, although I do not anticipate that such a case will arise.
I thank Senator van Turnhout for her amendment and for the correspondence and the discussions we have had on this matter. I want to formally clarify on the record of the House that registering on this website once it has been established will have no impact on a person's application for, entitlement to or consideration of any matter referred to in section 5(9)(c) of the Bill. The Bill is not intended to discourage communication of these issues and will have no impact - negatively, positively, or any other way - on that. I have provided for clarity the formal advice I have received from the Attorney General on the impact of this provision. There are of course already rules in place in relation to certain matters where lobbying is inappropriate and might lead to disqualification. I refer, for example, to jobs advertised on publicjobs.ie. That is sui generis. People will understand that. I hope what I have said will be fully accepted by Senator van Turnhout.
The Senator has also asked me to write to my ministerial colleagues to draw attention to this issue. I intend to communicate with Ministers and other designated public officials on the details of this legislation and all its practical implications, including this point. I will be happy to address this issue as part of that communication. The review of the Act will also provide an opportunity to assess further, in the light of experience, whether this legislation is applying as we fully intend it to. The intention of the Bill is not to change the type of current behaviour as instanced by Senators Norris and van Turnhout. Proper lobbying is a vital component of our democratic process. It is not my intention to put that in jeopardy. I probably spoke flippantly last week when I said I am in favour of normal lobbying for the public good, as opposed to the vested interest type lobbying which is not for the public good. As I said last week, I want to put the sort of lobbying that used to take place in the Galway tent under the microscope. The normal good work of charitable organisations that are involved in advocacy for homelessness, the disability sector or any other area of activity is absolutely to be protected. I hope those assurances will assuage Senator van Turnhout's concerns and obviate the need to pursue the amendment.
I welcome the clarity that has been given by the Minister. I know the organisations that contacted me will be equally thankful for what the Minister has put on the record. I will withdraw the amendment on that basis.
I move amendment No. 41:
This amendment relates to, in the case of a lobbying activity by a person under section 5(1)(a) or (c), the overall amount spent on that lobbying action by the client, and in the case of a lobbying activity by a person under section 5(1)(b) or (c), the costs associated with that lobbying action. It has been correctly pointed out by others that the regulatory framework necessary to create genuine transparency in public decision-making and open government will never be complete unless we know who paid how much to pitch what proposals or positions to whom. This is essential information and yet the Bill contains no requirement to make this kind of information available to the public, and we put forward the amendment so that such would be the case.
In page 14, between lines 8 and 9, to insert the following:"(g) in the case of a lobbying activity by a person under section 5(1)(a)or (c)the overall amount spent on that lobbying action by the client, and in the case of a lobbying activity by a person under section 5(1)(b)or (c)the costs associated with that lobbying action.".
I have been generally in support of the Sinn Féin amendments but I find this one a little pettifogging. It is understandable in cases of a major company, but in the case of a voluntary organisation or an individual, that is an unnecessary volume of red tape. That is merely my opinion. I would find it difficult to support this amendment.
Senator Norris has addressed the issue, probably more succinctly than I could. As I have stated, we have held a significant amount of discussions on this across the public sector, lobbying organisations and NGOs and they do not want to be overburdened in this regard. If every approach they made had to be costed and the cost was aggregated for every voluntary organisation, they would collapse under the weight of it all.
That is not what Senator Ó Clochartaigh intends but that would be the net result. On balance, I have given assurances to those organisations that I would make this as practical as I can. I will not accept the amendment.
I beg to differ with my esteemed colleagues. On this one, they have missed the point completely because most NGOs would not be in a position to give large fees to a lobbyist to lobby on their behalf.
What we are looking at here is the scenario of the Galway tent that the Minister outlined previously, where if a lobbyist is paid to go around with bags of cash to lobby people, even if he or she does it within the parameters, we should know how much people are being lobbied, for example, how much the multinationals or big companies are paying the lobbyists to do the type of work that they are doing compared with an NGO which might be lobbying on the other side of an argument. For example, in the case of the tobacco sector, which was used by Senator Norris earlier, the tobacco companies could potentially spend hundreds of thousands of euro to hire a lobbyist to do a lot of work on their behalf whereas the NGOs lobbying on the other side of that argument would not have such sums available to them. In the era of transparency, that is exactly why one needs an amendment like this. It is so one can see when that type of activity is happening.
It is not about breaking down the costs of every NGO when they come to speak to a Minister. It is about the lobbyist who is paid, either on a contract or fee, to do this type of lobbying. That is essential if we are to have any real belief in the Bill. It is that era of the brown bags of cash going around the place which we want to move away from.
I suggest that Senator Ó Clochartaigh withdraw the amendment and re-enter it on Report Stage in a slightly different form with, for example, a cash limit. If it stated any lobbying activity costing more than €5,000, €10,000, €15,000, €100,000 or whatever, of course it would be another matter. Everybody knows that the big tobacco companies, the drinks sector and others use significant sums of money. Let us have it specified over a certain amount.
Where somebody is going to lobby a Minister, merely to discuss an issue, would he or she put in the bus fare? I do not see it as practical. I see it as having a, to use the awful phrase, chilling effect on lobbying. It would be nonsense if, for example, they had to produce receipts for the taxi and a sandwich they had in the bar.
When large sums are spent on lobbying, there may be some point in seeing that. I would agree with that. I would respectfully suggest that Senator Ó Clochartaigh withdraw the amendment and resubmit it with a certain reference to the substantial sums that could be involved, and anything over that should be recorded.
I move amendment No. 42:
I will listen to the Minister's reply.
In page 14, between lines 33 and 34, to insert the following:"(9) This section shall not apply to unpaid volunteers of an organisation that is otherwise a registered person for the purposes of this Act.".
An amendment was made in the Dáil which addresses the concerns raised by the Senators relating to the exclusion of unpaid volunteers from the requirement to register under the Bill. I do not want to be disingenuous, but I tabled a mirroring amendment to meet the request of the Fianna Fáil Deputy. In the Seanad, dare I say, this was probably inadvertently resubmitted.
My party is opposing this section. We can see no valid reason to protect from public scrutiny the lobbying of public officials with respect to public policy, legislative or funding decisions on the basis of adverse effect on the financial interests of the State, business interests generally or particularly, or potential material financial loss to, prejudice to the competitive position of, or contractual negotiations engaged in by the lobbyist or his or her client. If the Minister has a legitimate purpose to this, perhaps he could draw this provision very narrowly. As it stands, one could drive a transport truck through this loophole. Indeed, secrecy of this nature in the form of delayed public scrutiny, and for these same cited reasons, is what helped bring the State to its economic knees. It is not acceptable. This Bill has to be about changing all of that. The purpose of this provision, as it stands, undermines the Bill as a whole and it is strongly opposed on this basis.
Section 14(1) provides for a delayed publication where the registrant believes that the registration or the return relating to the lobbying would have one of the following effects: a serious adverse effect on the financial interests of the State, on the national economy, business interests generally or the business interests of any description of persons. It is reasonable where any action might have a serious impact on the national economy that a delay might be warranted. Most would accept the reasonableness of that position.
There would not be much requirement to utilise this provision. In the exhaustive discussions we held, and looking at best practice internationally, it was felt that this provision is necessary.
I completely understand the Minister's position with regard to the national economy and any threat to the financial well-being of the State, but there may be circumstances, for example, where it would be good if a company was financially disadvantaged where its financial business was determined to be against the interests of the people. I assume that the powers to delay publication exist theoretically and need not be enforced on every occasion so that, if a company was adjudged to be inimical to the best interest of the public good, the Minister could go ahead and publish and be damned.
When I say this will be limited in its use, it is there as an ar-eagla-na-heagla provision, but there are clear and strong checks and balances before it can be utilised. I will bring the Senators through those. The thresholds are set out in the Bill. It requires, first, in subsection (1)(a), that it would be a serious adverse affect. In subsection (1)(b), the threshold requires that it would be expected to cause "material financial loss" or "prejudice seriously the competitive position of" a company.
The commission is then obliged to consult with relevant Ministers before it can make a decision on matters coming within the section. The commission must, by law, have regard to the public interest before coming to a determination, and whatever prevailing financial loss must be weighed against the public interest. The commission will have the option of making information available in summary form, if a redaction would meet the purpose. After all of this, there is a right of appeal to an independent appeal officer under section 23, and the right to appeal that decision to the High Court. The provision is fairly robust, but I would not take this out as Senator Ó Clochartaigh suggests, because we would not like to have a situation where we would have to do something where, by common agreement, it would be against the public interest and would strike a blow at the financial interests of the State.
I move amendment No. 43:
We do not agree that Deputies, Senators, MEPs and councillors should be exempt from these restrictions and the requirement to obtain pre-authorisation by way of application to SIPO if they want to take up employment as a lobbyist within two years of leaving public office. They can possess influence and inside knowledge that may not be in the public interest to make available, particularly to private commercial interests which may become their clients.
In page 22, line 11, to delete "paragraph (a), (e)or (f)of".
With regard to amendments Nos. 44 and 45, we can see no valid reason for the Minister's proposed shorter cooling-off period during which time the law should impose restrictions on post-term employment as a lobbyist, meaning that SIPO would require former public officials to make an application and secure its pre-authorisation before taking up such employment. We concur with the opinion of most commentators, that a two-year period provides a much safer margin to protect the public from influence peddling for hire and is not onerous. This longer period is especially reasonable given that the Bill does not impose an absolute prohibition but rather makes provision for SIPO's conditional or unconditional consent in appropriate cases, as set out in section 22(5).
The imposition of restriction on post-term employment as a lobbyist on relevant designated public officials must be proportionate and practical because people have constitutional rights. One of the most difficult things is to narrow or circumscribe people's right to work, which is what this provision does. I have said we will apply this to the following categories: Ministers of the Government; Ministers of State; and special advisers and public servants of a prescribed description which are Secretaries General, assistant secretaries general, the chief executive officers of local authorities and the director of services of local authorities. These categories will expand over time as I have indicated. I do not think they should apply to every Deputy and Senator. People should not be restricted from the employment they take up after membership of either House because they have been an active Member of the House. Perhaps the Senator feels there is a case for it but it is not one I feel is convincing.
With regard to the other two amendments, that there should be a two-year gap rather than the one-year gap I propose, the one-year gap is proportionate. Bluntly, the advice I have is that if one is to state people cannot work for two years one will have to compensate them for it, and I do not want to get into the business of making extended payments to people who leave the public service in compensation for disallowing them to take up roles in certain categories of work. It is about striking a balance to create sufficient clear water. A year is sufficient clear water after someone leaves public service, because what I want to stop is the notion of people being responsible for one activity in the public service at the end of January and in February walking into the very area which they regulated, which happened in the past. A one-year gap clears the air in an appropriate way and is a very good start if these issues are to be addressed in the future. This is the first time this is being done and it is a robust and sound measure that is proportionate and constitutional, which is an important consideration also.
I largely agree with the Minister, but I do not see the difference between preventing people from being a lobbyist for one year or two years. Does the Minister suggest one would not have to pay them for one year but would for two? Is that the law?
It is striking a balance of proportionality. People might determine it acceptable to restrict somebody's activities for a year, but one would be in more dangerous territory going beyond that.
I accept that. It is a question of proportionality. I do not see why ordinary Members of either House should be disbarred. They are just ordinary Members who are not in the same situation as policy makers such as Ministers and Secretaries General. They are in a different category and I have no difficulty with the Minister's position on this.
By way of clarification, while former Members or officers would be prevented from becoming a lobbyist for the first 12 months after leaving office, would they be prevented from being a board member during this period? Is there any restriction on this?
The restriction is they would have to seek the advice of SIPO to determine the appropriateness of any such position. This is how we have couched it rather than designating what would not be allowed. On a case-by-case basis the independent standards commission will make the determination and give the advice accordingly.
Government amendment No. 46: In page 24, between lines 12 and 13, to insert the following:"Delegation of functions by Commission26. Such functions of the Commission under this Act as may be specified by the Commission may be performed, under the supervision and subject to the general direction of the Commission, by members of the staff of the Commission duly authorised in that behalf by the Commission.".
This amendment stands at the request of the Standards in Public Office Commission which contacted my office and asked for it. The Ethics in Public Office Act 1995 provides the commission with authority to delegate its functions to staff of the commission. The commission is strongly of the view that to avoid any possibility of future legal challenges the question of its powers of delegation should be put beyond doubt by including a delegation provision in the Bill, and this is what I am minded to do.
I move amendment No. 47:
As I understand it, as it stands the Bill just registers the fact of lobbying. It would be important that we know the content of such lobbying, particularly in terms of very large companies which have an interest. Rather than just registering the fact that they have lobbied a Minister, it would be important for the public to know the lines of that lobbying and what facts were produced so the issues can be discussed.
In page 24, after line 26, to insert the following:"27.In any meetings between lobbyists and Ministers/Officials it shall be required that detailed minutes be kept of the content of the discussion of the meetings.".
At that level it is a question of issues, rather than just the fact that a lobbying meeting was held. Everybody would like to know exactly what went on. I remember Senator Crown mentioning publicly that the Taoiseach and a Minister or two had met a delegation from the tobacco industry. He thought it was very unusual that this was done privately. In those circumstances it would be important for people to know what was said and the subject matter of the discussion. A register just lists the fact that a meeting took place. I do not think that is enough. We need to know the degrees of pressure brought to bear on Government. Was there any kind of bullying, blackmail or threat, or anything like that? If such things happen, I think the public should know.
I welcome the Minister. I think Senator Norris's amendment is well worth considering on two grounds. This week, at a meeting of Joint Committee on Transport and Communications, we discussed the same issue that we discussed last week. Any lobbying on the matter had to be done in public. During this week's meeting, members of the lobby group that had appeared the previous week, who did not agree with a word of what was said by that group, appeared again before the committee and admitted that they disagreed with the points their own group had made. That was a wonderful spectacle - to see the lobbyists falling out among themselves. It is useful for Ministers to know that. A more serious point that I learned from another committee of which I am a member is that no notes were taken at the meeting of 29 September 2008 at which the €64 billion was lost to the country. It must be an incredible ratio - no notes and €64 billion worth of banknotes. We need the records so that the Government's conduct can be open and inspected, as this Bill intends.
Having listed to Senator Barrett, I am minded to think back to my time as Minister for the Environment in the Custom House, when I embarked on a series of communications with what could be described as lobbyists for the taxi industry. I met representatives from various interest groups over a protracted period, and it happened that the leader of the first delegation that came to visit me left and joined a different lobbying group, which was the last group I met. They had a completely different position by the time the lobbying concluded. I agree that one learns about the presentation of facts over time.
I think we have rehearsed these issues in previous amendments. I do not want to reverse the position. The structure of the Bill is that the lobbyist is required to register. Once we see on the register that somebody has been lobbying, it is a signal that we should use the other legislation we have - for example, by using the Freedom of Information Act to find out what happened, who was in attendance and so on. There are other instruments such as parliamentary questions or the procedures of this House that can be used for further inquiry into a meeting. We can get this sort of information by means other than by requiring the detailed publication of a lobbying note. It is a balance between imposing transparency requirements, which is right and proper, and ensuring that communications with the organs of the State continue. I think we have struck the right balance.
The Minister talks all the time about reversing the flow. I do not accept that. If so, what about it? The goldfish are not going to drop dead because he reversed the flow. Our cry should be to go with the flow. One of the reasons I tabled this amendment is the dearth of notes. Thanks to the invasive nature of what can be found under the Freedom of Information Act, notes of what happens at government meeting are not kept. It is all done orally. We do not know what is going on. There is a tissue of pretence about freedom of information and all the rest, a lot of which leads to prurient quarrying by media, which is offensive and irritating. The media often misinterpret the facts when they get them, and sometimes they deliberately misinterpret them. This amendment is intended to counter the absence of information on the substance of discussions at meeting. We should know the substance. It is not enough to know that lobbying took place; we need to know what went on. If one believes in freedom of information, one really needs freedom to know what went on. What is the point in knowing that a meeting happened? So what? The substance of what went on is what we need to know. We need a note of that. I very firmly believe this and I ask the Minister to review this amendment. Let me point out that the Minister has not accepted any amendments except his own, although he gave a number of undertakings that he would look at things again. I will not call a vote if I get an undertaking from the Minister that he will look at this again.
I think Irish Water has gone to the Minister's head - he is talking about the flow here and the flow there and the flow back. That is all nonsense. Let us know what inducements were offered to Government. The Galway tent does not have to be in Galway; it can be in Government Buildings too. It can be a reverse flow, with the industry bullying the Government.
I take the point. Senator Norris likes to put things in a colourful way, and that is fine. The amendment does not refer to the array of officials and groups that I have named in the Bill as those who are lobbied. The Senator simply confines it to Ministers and officials - again, not defining the officials to be covered by this amendment.
In what sense? Will it apply to every official, every clerical officer and everyone who is talked about? Senators and Deputies are excluded because it would mean we would have to write and publish an official note on what was said by every residents' group or IFA delegation at our clinics.
- Sean Barrett
- Paul Bradford
- Thomas Byrne
- Gerard Craughwell
- James Heffernan
- David Norris
- Trevor Ó Clochartaigh
- Mary Ann O'Brien
- Jim Walsh
- Diarmuid Wilson
- Katherine Zappone