If you lobby public officials or speak to them about issues that may benefit you or your organisation, you need to be aware of new rules that came into effect on 1 September 2015. Under the Regulation of Lobbying Act 2015 there are new registration and disclosure obligations in place for lobbyists.
The Act aims to bring transparency to communications with Government officials and other senior public servants that are intended to influence legislative or policy decisions. The key way in which the Act seeks to achieve this increased transparency is by requiring lobbyists to register their lobbying activities on a publicly available Register of Lobbying.
WHAT IS LOBBYING?
Lobbying, under the Act, means the making of a "relevant communication" to a "designated public official" in relation to a "relevant matter".
We consider what each of these phrases mean in more detail below, but the first step is to consider if the Act applies to you.
DOES THE ACT APPLY TO YOU?
You may be required to disclose your lobbying activities to the Standards in Public Office Commission (SIPO) if you are:
- a business with more than 10 employees;
- a representative body or an advocacy body with at least one employee;
- a third party lobbyist (i.e., you are paid by a client to lobby on their behalf); or
- lobbying about the development or zoning of land.
The Act applies to lobbying activities which take place within the State whether the lobbyist is based in Ireland or abroad. If you are a foreign lobbyist undertaking a lobbying campaign aimed at Irish designated public officials, the Act may therefore also apply to you.
WHAT IS A RELEVANT COMMUNICATION?
A relevant communication is a communication made personally, either directly or indirectly, to a designated public official. This includes, for example, approaches made in meetings, phone calls, correspondence, and even casual exchanges in person.
WHO IS A DESIGNATED PUBLIC OFFICIAL?
Designated public officials include:
- Government ministers and ministers of State;
- members of Dáil Éireann and Seanad Éireann (members of Irish parliament);
- members of European Parliament for Irish constituencies;
- members of local authorities;
- certain public servants;
- senior officers in other prescribed public bodies.
WHAT IS A RELEVANT MATTER?
A relevant matter includes any matter relating to:
- the initiation, development or modification of any public policy or of any public programme;
- the preparation of an enactment; 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.
WHAT IS AN EXCEPTED COMMUNICATION?
Excepted communications are communications that do not have to be disclosed. Examples of excepted communications include communications:
- relating to the implementation of any policy, programme, enactment or award;
- relating to matters of a technical nature;
- by or on behalf of a country or territory other than the State;
- the disclosure of which would pose a threat to the safety of any person or the security of the State;
- relating to negotiations on terms and conditions of employment undertaken by trade union representatives;
- relating to a person's private affairs (other than the development or zoning of land which is not their private principal residence); and
- requests for factual information (e.g. a query regarding the number of employees in a certain sector or the date of implementation of a policy or programme).
WHAT DO YOU NEED TO DO?
If the above criteria apply to you, you must now register as a lobbyist and file returns with SIPO setting out details of your lobbying activities. Returns must be filed three times yearly, with the first return due by 21 January 2016 in respect of the period 1 September 2015 to 31 December 2015.
Every return must include details of:
- the designated public official to whom the relevant communication was made;
- the subject matter of the lobbying activity;
- the type and extent of the lobbying activity and its intended results; and
- the name of the person who had responsibility for the lobbying activities.
The name of the person primarily responsible for the lobbying activity, the lobbyist, is included on the register. You do not need to include the names of those who were not primarily responsible for the lobbying activity or who did not direct the particular communication. If considering whether a person should be named, ask yourself: who is "managing" the lobbying activity?
WHAT HAPPENS IF YOU DO NOT COMPLY?
The provisions in the Act dealing with offences and penalties are not yet in force. The Minister for Public Expenditure and Reform has indicated that he does not intend to commence these provisions until he has conducted a review of the Act in September 2016.
Once these provisions have been commenced, the following will be criminal offences:
- lobbying without registering;
- failing to file a return with SIPO;
- providing information to SIPO that is misleading or inaccurate; or
- obstructing a SIPO investigation.
The penalties for the above will include fines of up to €2,500 and/or imprisonment for a term of up to two years. If convicted of an offence, you will also have to pay the costs SIPO incurred in bringing the criminal prosecution.
TAKE ACTION NOW
If you think that you may be subject to the new rules, you need to take action without delay and:
- consider what contact you or your organisation has with people who may be designated public officials and whether such communications may be considered relevant communications;
- register any lobbying activities at www.lobbying.ie;
- implement protocols to deal with recording and registering all communications and lobbying activities and ensure someone in your organisation has responsibility for managing and coordinating this;
- think carefully about the nature of your communications with designated public officials and always be mindful that any such communications may now be catapulted into the public domain.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.