Ireland: Regulation Of Lobbying Act 2015

Overview

The Regulation of Lobbying Act 2015 (the "Act") was signed into law by the President on 11 March 2015. The Act came into effect on 1 September 2015 and applies to a diverse range of individuals who may not to date have been regarded as lobbyists.

The Act is intended to ensure that the influence of lobbying in public decision making practices is more transparent. The Act obliges those engaged in lobbying activities to register on the online lobbying register (the "Register"), which is maintained by the Standards in Public Office Commission (the "Standards Commission"), and to provide certain information in respect of those activities for inclusion in the Register.

What is Lobbying?

Under the Act, a person will be considered to be a lobbyist where they make a "relevant communication". A "relevant communication" means communications (whether oral or written and however made) other than excepted communications, made personally, either directly or indirectly, to a designated public official in relation to a relevant matter.

A communication will relate to a "relevant matter" if it relates to the:

(i) initiation, development or modification of any public policy or of any public programme;

(ii) preparation or amendment of an enactment; and

(iii) award of any grant, loan or other financial support, contract or other agreement or of any licence or other authorisation involving public funds.

apart from any matter relating only to the implementation of any such policy, programme, enactment or award of a technical nature.

The term "designated public official" includes:

(i) Ministers of the Government and Ministers of State;

(ii) other Members of Dail Eireann and Seanad Eireann;

(iii) members of the European Parliament for constituencies in the state; members of local authorities;

(iv) special advisors appointed under section 11 of the Public Service Management Act 1997;

(v) public servants of a prescribed description; and

(vi) any other prescribed office holders or description of persons.

In respect of (vi) above, a "public servant" is defined in the Act as including a person who is employed by a "public service body". However, section 6(2) of the Act provides that the Minister for Public Expenditure and Reform (the "Minister") "may prescribe descriptions of public servants under subsection (1)(f) by reference to their roles, levels of remuneration, grades or similar factors". Accordingly, in respect of (vi) above, only public servants prescribed by the Minister as designated public officials will fall within the scope of the Act. The Regulation of Lobbying Act 2015 (Designated Public Officials) Regulations 2015 (which also came into effect on 1 September 2015) (the "Regulations") outlines the current categories of designated public officials prescribed pursuant to (vi) above. However, these may be expanded upon by the Minister over time.

It should be noted that, although the Central Bank falls within the definition of a public service body pursuant to the Act, no person within the Central Bank is currently prescribed under the Regulations as a designated public official.

Who is Carrying on Lobbying Activities?

A person is deemed to be carrying on lobbying activities if they fall within certain categories as outlined below:

(i) persons in the course of their business being paid to make, manage or direct the making of a relevant communication on behalf of a client who has more than ten full time employees or is a representative body or an advocacy body which has at least one full time employee;

(ii) an employer, or their agent or employee, with more than ten employees where the communications are made on behalf of the employer;

(iii) a representative body with at least one employee communicating on behalf of its members and the communication is made by a paid employee or office holder of the body;

(iv) an advocacy body with at least one employee that exists primarily to take up particular issues and a paid employee or office holder of the body is communicating on such issues;

(v) Any person communicating about the development or rezoning of land.

A number of communications are provided for at section 5(5) of the Act. These are referred to as "excepted communications" and include the following:

(i) communications by or on behalf of an individual relating to his or her private affairs about any matter other than the development or zoning under the Planning and Development Acts 2000 to 2014 of any land apart from the individual's principal private residence;

(ii) communications by or on behalf of a country or territory other than the State;

(iii) communications by or on behalf of the European Union, the United Nations or any other international organisation;

(iv) communications requesting factual information or providing factual information in response to a request for the information;

(v) communications requested by a public service body and published by it;

(vi) communications forming part of, or directly related to, negotiations on terms and conditions of employment undertaken by representatives of a trade union on behalf of its members;

(vii) communications the disclosure of which could pose a threat to the safety of any person;

(viii) communications the disclosure of which could pose a threat to the security of the State;

(ix) communications which are made in proceedings of a committee of either House of the Oireachtas;

(x) communications by a designated public official in his or her capacity as such;

(xi) communications which:

a. are made by a person who is employed by, or holds any office or other position in, a public service body in his or her capacity as such, or

b. are made by a person engaged for the purposes of a public service body in his or her capacity as such, and which relate to the functions of the public service body;

(xii) communications which:

a. are made by a person who is employed by, or holds any office or other position in, a body which is not a public service body, but is a body by which a designated public official is employed or in which a designated public official holds any office or other position, in his or her capacity as such, or

b. are made by a person engaged for the purposes of such a body in his or her capacity as such, and which relate to the functions of the body;

(xiii) communications by or on behalf of a body corporate made to a Minister of the Government who holds shares in, or has statutory functions in relation to, the body corporate, or to designated public officials serving in the Minister's department, in the ordinary course of the business of the body corporate;

(xiv) communications between members of a relevant body appointed by a Minister of the Government, or by a public service body, for the purpose of reviewing, assessing or analysing any issue of public policy with a view to reporting to the Minister of the Government or public service body on it;

(xv) any communications of a description prescribed under section 5(8) of the Act.

Registration Requirements

The Standards Commission is responsible for the regulation of lobbying and there is a positive obligation on lobbyists to register under the Act and to provide returns to the Standards Commission every four months. Both applications for registration as a lobbyist and the information provided on the Register will be publicly available. All returns must include certain information, including:

(i) to whom the communication was made;

(ii) the subject matter of the communications and the results they were intended to secure;

(iii) the name of the person with primary responsibility for carrying on the lobbying activities; and

(iv) the type and extent of the lobbying activities carried on.

If lobbying was undertaken on behalf of a client, the return must include certain additional information, for example the client's name, address and business activities.

The first returns are due to be submitted to the Register by 21 January 2016 i.e. registration is mandatory from this date if you have engaged in lobbying during the period 1 September 2015 to 31 December 2015. Although those carrying out lobbying activities are not yet obliged to register or make returns, the Register is available for a trial period from 1 May 2015 to 31 August 2015.

Preregistration

offers an opportunity to become accustomed to the Register and the filing of returns before the Act commences. The information provided in the pre-registration stage is not accessible to the public.

The Act does allow for delayed publication of an application or a return in circumstances where any information made available could have a serious adverse effect on the State's financial interests, the national economy or business interest. Delayed publication can also be applied for in circumstances where making the information available could cause a material financial loss to the person to who the information relates or seriously prejudice a client's competitive advantage or the outcome of any negotiations that the person is conducting.

Investigations and Sanctions

The Act provides for various matters to be treated as contraventions, including making a late return, failing to make a return, or making a false or misleading return. The Standards Commission can carry out investigations of alleged contraventions and have extensive powers to demand information, explanations and documents. It also has powers of search and seizure.

The penalties for contraventions include the issuing of fixed penalty notices or, on summary conviction, the imposition of a fine (not exceeding €2,500). However, the Standards Commission and the Department of Public Expenditure do not intend to impose sanctions for the first twelve months in order to allow for a period of familiarisation.

Next Steps

Keep a Record

The Standards Commission may require an entity to provide information on all lobbying activities between the period 1 September 2015 and 31 December 2015. Therefore a record should be kept of all lobbying activities from 1 September 2015.

Registration

An entity wishing to be added to the Register must ensure that registration is made by 21 January 2016. Returns for the period 1 September 2015 – 31 December 2015 must also be provided at this stage.

Returns

The registered entity must, after the end of each relevant period, make to the Standards Commission, a return every four months.

Codes of Conduct

The registered entity must give due regard to the Codes of Conduct that the Standards Commission may publish as it deems appropriate.

Further Information

Further information can be found at the following link:

https://www.lobbying.ie/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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