The Minister was in possession.
Registration of Lobbying Bill 2014: Report Stage (Resumed) and Final Stage
I have responded to the points made. In essence, the Deputy wants me to put into the primary statute the list of public officials. It is better to allow enabling legislation with regard to public officials. I have indicated what I will do at the start, but this is by no means intended to be the end of it. From the start Secretaries General, assistant secretaries general and chief executive officers of local authorities will be covered, and as soon as may be thereafter, principal officers and other groups which we may discuss, perhaps in committee, will be included.
I understand what the Minister is saying, which is that he agrees with me that these people should be included but he will not put it in the legislation. From the perspective of this side of the House, the public would much prefer to see legislation on a topic such as this being spelled out, in so far as is practical, in the primary Act and not being done through statutory instruments next July or later in the year, as people would have to go out of their way to find out whether it was commenced and who was included.
Legislation which includes as much detail as is practical - I use this word because I do not seek to overburden - is better than enabling legislation, the implementation of which is left to statutory instruments. Historically there has not been the same level of debate, if any, on the implementation of statutory instruments.
There is a lack of balance on this topic as the only designated public officials are politicians. By definition, there is a lack of balance. There should be a commensurate balancing of the politicians with senior civil servants who, in the majority of cases, have far more influence on matters than the Minister of the day.
The Minister is right when he states that under paragraph (f) he can include public servants of a prescribed description and under paragraph (g) he can include any other prescribed officeholder or description of person in due course. He states he will prescribe some of these from the commencement of the legislation. The Minister is almost suggesting that by including Secretaries General, assistant secretaries general and the chief executive officers and directors of services of local authorities-----
Thank you, Deputy.
Do I only have two minutes?
I have nothing more really to add, other than to state it is not as simple as the Deputy is putting forward because there are analogous grades in the Civil Service. There are directors and technical grades which should be included but will not be captured by simply describing assistant secretaries. It is better, I am advised formally because I have checked since we spoke this morning, to do this by way of statutory instrument where there is more scope than simply including assistant secretaries or secretaries general. I will capture it comprehensively in a statutory instrument and will be able to amend it by other statutory instruments. We feel the grades may change in the future and the grades outside of the formal Civil Service and the public service might need to be captured. As we are on the same page with regard to who should be captured, I ask the Deputy to leave it to the most efficient way of doing it which, I am advised and I advise the House, is by way of statutory instrument.
I understand what the Minister is saying, but I am probably arguing this from a slightly different perspective. Legislation should be as comprehensive as is practical and there is no ambiguity about the role of a Secretary General. I understand that those at a technical grade below this grade may have a similar level of responsibility-----
For example, the chairman of the Revenue Commissioners or the chairman of the Office of Public Works are an equivalent grade but would not be captured by "Secretary General".
Perhaps this would also be the case for certain regulators.
Given that we are speaking about Government Ministers-----
What they are is set out under the Constitution.
-----and Ministers of State, Secretaries General are accounting officers and are a specific identifiable group, and all of the other people mentioned by the Minister are not prevented from being brought in under paragraph (f) or (g).
I was in attendance when the Minister and the Taoiseach launched the Civil Service renewal plan, which is a three year action plan for the Civil Service, published in October 2014. Earlier today, I wondered whether this action plan for the Civil Service had any relevance to this topic. Action No. 22 states the intention is to strengthen policy-making skills and develop a more open approach to policy-making, and we are speaking about policy-making and not implementation. The document states this can be achieved by establishing the expectation that all policy officials maintain an active network of key stakeholders in front-line service delivery, academia and international administration and engage this network regularly, particularly at the early stages of policy development. This is a great group which the Minister could bring together to help him with policy. Inevitably the group would come with particular perspectives. Action No. 22 is a method by which people could influence policy and it needs to be captured in the legislation. People bringing policy to Ministers, such as Secretaries General and county managers, need to be captured in the legislation.
I do not know how many pieces of legislation pass through the Oireachtas each year. It could be between 40 and 60, but I am not sure of the figure. I do know the number of statutory instruments can vary from 700 or 800 to 1,100 or 1,200. The best place for people to see legislation in a transparent manner is in the primary legislation which comes through the House. I am sure it boggles the minds of people to look at the list of statutory instruments on the relevant Department's website each year. They can amount to well over 1,000 and it is very difficult for people to find a particular one.
Secretaries General and their equivalents, such as county managers, should be included in the legislation because it is not balanced to list only politicians as those who can be lobbied and to whom the legislation will apply. It would be fairer to the public service, and would send it a clearer signal from the House, to state Ministers and Secretaries General are included. If the Minister wants to include people below this of course he can do so. To pass legislation which excludes any member of the Civil Service from being captured as a designated public official under the legislation is a mistake.
I move amendment No. 34:
In page 9, between lines 13 and 14, to insert the following:
“(f) Directors of Services of local authorities;”.
I move amendment No. 37:
In page 9, between lines 13 and 14, to insert the following:
“(f) Chief Executive Officers of local authorities;”.
I move amendment No. 38:
In page 9, between lines 13 and 14, to insert the following:
“(f) senior public servants between the ranks of secretaries general and principal officer;
(h) management boards of public bodies;”.
I was surprised this amendment was not grouped with the previous batch. The position has been set out that in addition to overtly political people, we need what is often referred to as the permanent government to be subject to the provisions of this legislation also. My amendment is an attempt to achieve that.
While I know the Minister is minded to deal with the matter in a different way, I believe it is preferable to at least name certain categories. I appreciate it is not possible to have an exhaustive list in primary legislation, but, of course, the Minister has the other mechanism available to him to bolster that. The amendment would ensure that the upper echelons of public administration - the permanent government, if one likes - are also captured within the provisions of the Bill.
This covers the same territory as we have just covered. In essence, the Deputies opposite want to achieve the same objectives that I do, but they have a different way of doing it. They want to set it out in primary legislation. I say that is not the best way of doing it, because there are analogous grades that could not be captured and it would give the wrong signal. It is better to state that all appropriate public servants will be captured. From the beginning I have told the Deputies what I am going to do, and I think that is the best way to proceed.
Amendments Nos. 39 and 40 are related and will be discussed together.
I move amendment No. 39:
In page 9, between lines 26 and 27, 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.”.
We discussed this amendment on Committee Stage. My amendment No. 39 refers to a public official. We are now only talking about Ministers and Members of the Dáil, essentially - nobody beyond that. That is all that is covered in the legislation so far, notwithstanding that some others might be listed by the Minister by way of statutory instrument shortly.
Where these officials as designated in section 6 are lobbied outside the State, I want a mechanism to capture that under this legislation. Those people should register with Standards in Public Office Commission regarding any such lobbying, because the organisation outside the State might not be subject to legislation within the State. I gave the example of the then Minister for Finance, who was lobbied in Davos by some vulture funds about the selling off of NAMA loans that they wanted to buy in bigger chunks than the lots being offered. That will probably be remembered as one of the most serious incidents of lobbying of a Minister by a private sector company from outside the State, and that cannot be captured under this legislation.
Amendment No. 40 deals with a similar situation. Again, I am talking essentially about Ministers being lobbied by an organisation from outside the State. I again propose having a mechanism under the Standards in Public Office Commission, if it is not practical to do it under the lobbying register, to capture Ministers who are seriously lobbied by organisations from outside the State, because they can have such influence on major Government decisions.
I know the Minister wants the legislation to be workable; that is probably his catchphrase. The smaller and narrower it is made, the more workable it probably becomes, but then the less effective it is. I know there is a balance to be struck, and casting it too wide could create unintended consequences, but some of these are issues we have seen.
I will not labour the point about Goldman Sachs, which will be putting documentation together for the Minister that may constitute lobbying when it comes with its perspective. We need to remember that an organisation such as Goldman Sachs has other clients - financial institutions in America, Europe and Asia - that might have an interest in buying shares in AIB down the road. While it is working for the Minister for Finance, it will not do anything inimical to its clients who might be interested in buying shares. So it is not coming clean - it is not possible for it to do so. I am not saying anything is wrong, but it is probably impossible in the financial world in which we live for people to have the level of international experience to advise a Minister on a topic such as this without having some other interests or dealing with other organisations which could have a vested interest in such a report that they would give to the Minister, because if they did not have the interests with other people, they would not have the expertise and experience to do the job. There is an issue here and we need to see some of that captured in the legislation.
The essence of my two amendments is to broaden the legislation to include these two points.
Again, we discussed this on Committee Stage, and I have many difficulties with it. First, it seeks to fundamentally alter the architecture of the Bill. The Bill is predicated on a very simple structure, which is to regulate through registration and reporting requirements the responsibility of people who lobby. So the onus is on the lobbyist - the person who is carrying out the lobbying. These amendments reverse that and in a set of circumstances put responsibility on those who are lobbied. That is every Deputy in this House and every member of a local authority who happens to be abroad.
If somebody comes up to a public representative, either in Brussels or anywhere else abroad, and asks about anything, under these provisions, the person would have to say, "Stop. Are you lobbying? Are you a registered lobbyist? Do you comply with the Irish lobbying regulations? If not, I need your details now, so I can report you and register you." It is just not going to happen.
I ask the Deputy to consider explaining to all the Fianna Fáil local authority members that every time anybody comes up to them to talk about anything that affects Irish policy, they will have to stay, "Stop. I need to register you because you are now lobbying me abroad." It is an impossible onus to put on the lobbied person. The Bill is so structured as to put the legal responsibility on those who are carrying out the lobbying to be accountable and registered as lobbyists.
I genuinely do not believe this is the right way to go about it and I will not be accepting the amendments.
Not only have we excluded from the primary legislation all the senior officials who make up what people would generally call-----
We have not excluded them. We are going to put them in.
The Minister has excluded the permanent government from the primary legislation.
We are going to do it. The effect, legally, is the same.
We are now excluding the possibility of including people who lobby Ministers when they are outside the State. We are excluding organisations from outside the State from being captured under this legislation if they lobby a Minister. Following discussion on one of the earlier amendments yesterday evening, the Minister excluded lobbying for positions on State boards from being included in the legislation as well.
While the legislation contains some good items, the public bodies we tried to include earlier on, such as EirGrid, energy regulation and Irish Water, have all been excluded. We have now excluded the top echelons of the public service from the legislation.
We have not excluded them.
We are excluding lobbying of Ministers for positions on State boards from the legislation.
We are now excluding organisations from outside the State who lobby a Minister from the Bill.
The Deputy has now gone into his normal mischievous phase. We are doing constructive work. We are not excluding senior public servants. I want to include them in a different way, something which I told the Deputy and which he accepted. One minute he says he accepts my bona fides that this will happen by way of statutory instrument because it is a more effective way of doing it, but the next he wants to make a silly political statement to the effect that I am excluding them all. I am telling him, de facto, on the record of the House, that I am going to include them. Why would he stand truth on its head? There is objective truth.
In regard to this issue, which is lobbying, he can see the practicality of including every Member of the Dáil. Has he run this past his parliamentary colleagues? Every time they go abroad they will not be able to have a discussion with any foreign colleague. When they go to the Council of Europe and somebody talks to them about public policy here, they will be required to register as a lobbyist. That is so impractical and silly that it should not be done. The Deputy knows in his heart that it is not practical to do that, but he is trying to create some sort of political statement that this is not an effective Bill.
I have been trying for ten years to get the register of lobbyists done, and the Deputy's Government resisted it. It voted down a version I presented, and twice voted down a version presented by Deputy Rabbitte. This is a good stab at addressing the issue. It examines best international practice and exhaustive discussions were held with stakeholders in order to develop as good a Bill as we can. It is an effective and good Bill.
I reject the notion that the Deputy is trying to include a list of things by way of exclusion, and that somehow implies this is an ineffective Bill. It is not fair to the volume of work that has been done by Members of the House, the Deputy included, to put that construct on it at this late stage of the debate.
I know the point the Minister is making. I have a public record of supporting the principle of the Bill on Second Stage and did not vote against it on Committee Stage. I do not propose to vote against its passage on Report and Final Stages. All I am saying is that the Bill, while good, is too narrow. Given that we have gone so far to introduce the Bill, we could have done a little bit more to make it broader. My argument is not about the need for legislation.
I agree with what is in front of us, but it would be better if there was more substance in it from day one. Every amendment I tabled has been specific and was an effort to improve and broaden the Bill. Very few of my amendments propose to delete anything in the Bill, because I am happy with what is in it. I want to include extra provisions, such as public bodies and lobbying. The Minister said this is a first effort; let us see how it goes after a year. I will not oppose the principle of the Bill or what is in front of us, but we could be doing a little bit more.
Is the amendment being pressed?
I will withdraw it.
Amendments Nos. 42 to 52, inclusive, and 68 to 70, inclusive, are related. Amendment No. 42 is a physical alternative to amendments Nos. 43 to 52, inclusive. Amendments Nos. 42 to 52, inclusive, and 68 to 70, inclusive, will be discussed together.
I move amendment No. 42:
In page 10, to delete lines 21 to 35, and in page 11, to delete lines 1 to 19.
This amendment reflects that fact that, on reading the Bill, I felt that the definition or scope of the public service body was too restrictive. My amendment proposed to strike out the definition, but having reflected on this I want to withdraw the amendment and adopt an approach of adding to, rather than striking out, that provision. Deputy Fleming has tabled a set of amendments, which are grouped with mine and which I now withdraw, which seeks to do just that.
I recognise that one could not be absolutely exhaustive in the Bill, because the Act would be like a telephone directory if one attempted that. Invariably, something would be missed. Nonetheless, in each of these amendments there is a good rationale for the inclusion of these bodies and for making specific mention of them in the Bill. I hope the Minister will consider that and accept this proposal from the Opposition benches not as a means to try to frustrate his efforts in the Bill, but rather as an attempt to add to it.
I move amendment No. 43:
In page 10, between lines 32 and 33, to insert the following:
“(l) EirGrid Plc.,”.
There are quite a number of amendments to be dealt with, all of which cover one point. I want to go through them individually, not in an argumentative way.
The section I seek to amend is the definition section of the Bill, section 7. It defines a public service body, and refers to a Department of State, An Garda Síochána, the HSE, the National Pensions Reserve Fund, NAMA, the National Treasury Management Agency, local authorities, etc. It is quite a group; 11 organisations are listed. I know it is not possible to have a final exhaustive list, but the Minister has made a fair stab at it by including 11 specific organisations, many of which are quite large. The HSE employees 100,000 or thereabouts and is the largest organisation in the country.
I am not seeking to break any new principle; I just want to add to the list of the 11 organisations named. I want to include, under the list of public bodies, EirGrid, which operates in the public interest in the same way as education and training boards or other similar organisations. The Minister mentioned including the Revenue Commissioners. Where does one stop in the designation of public officials? When I referred to the Secretary General, the Minister asked where that would leave the chairperson of the Revenue Commissioners. I propose to include the Revenue Commissioners as a public body.
If the Revenue Commissioners is not listed as a public service body, will it be difficult to include its chairperson as a designated public official? Secretaries General, members of local authorities, CEOs, directors of services and assistant secretaries, as the Minister has indicated in correspondence, are included. The non-inclusion of the Revenue Commissioners in the definition of public bodies may make it more difficult to include it, even though many people believe it should be included. How will the Minister include the chairperson as a prescribed officeholder under the Bill if he or she is not in a public body listed in the Bill? We need clarification on that.
Amendment No. 45 deals with Ervia, the parent company of Irish Water. It goes without saying that we have thrashed that out umpteen times, and it is important that it is included.
Amendment No. 46 deals with the Revenue Appeal Commissioners. Will it not be possible to include it under the statutory instruments because it will not be listed a public body?
I have asked for An Post to be included because it has an monopoly on the delivery of post to residential addresses and normal letter post.
Amendment No. 48 refers to any organisation with the word "regulator" in its title.
That covers quite a few regulators, although I will not spell out all of them. Is it possible to include them in the legislation? The Minister has indicated that in due course he may work his way down to principal officers in designated bodies, Departments of the State or local authorities, but it seems that he will not be able to include the chairperson of the Revenue Commissioners if that is not deemed a public body under this section. I hope the Minister will clarify that it will be possible to include people by way of statutory instrument in some other manner in the public interest if the annual review indicates as much, but will there be a requirement to change the legislation to include organisations as public service bodies under the definition in section 7? The Railway Procurement Agency is an important organisation and it should be included, along with An Bord Pleanála.
Perhaps the Minister will accept these amendments; I do not know. How can the Minister tell us that under the definition section in this legislation, a public service body would not include An Bord Pleanála, the Revenue Commissioners, the Competition Authority or the Environmental Protection Agency? Although they are the essence of what constitutes a public service body, they are not included in the Minister's list of 11 organisations. I am happy with those 11 bodies, but the list is too small. I will not even respond to the Minister's words when he spoke about trying to include extra elements in the legislation, but with this set of amendments, nobody could comprehend how there could be a definition of a public service body in this legislation that would exclude EirGrid, the Revenue Commissioners, the Office of the Appeal Commissioners, regulators, An Bord Pleanála, the Competition Authority and the Environmental Protection Agency. They are public service bodies.
Will they be included in the legislation?
That is good, and I am happy with that. Amendments Nos. 41 to 52 and 68 to 70 are included in this group. At the very end of the legislation there is a list of "bodies that are not public service bodies", as indicated by the heading of the Schedule as proposed by the Minister. There may be good reason for including all of these, including commercial grounds, and I would be happy to go along with that if bodies have a commercial remit or commercial activity might be complicated on behalf of the Irish public as a result of this legislation. It is another list of exclusions from the wonderful lobbying legislation. Under the Schedule, there is a list of bodies that are not public service bodies, which will be excluded. They include "Any body corporate established by Act of Parliament before 6 December 1922 that, upon its establishment, was of a commercial character." The list of bodies that will not be a public body under this legislation continues by including:
2. Bord na gCon.
3. Bord na Móna plc.
4. Córas Iompair Éireann.
5. Coillte Teoranta (being a company formed and registered under the Companies Acts as provided for by section 9 of the Forestry Act 1988).
6. Cork Airport Authority, public limited company.
7. daa, public limited company.
8. EirGrid Plc.
9. Electricity Supply Board.
11. A harbour authority within the meaning of the Harbours Acts 1946 to 2005.
12. Horse Racing Ireland.
13. Irish National Stud Company Limited.
14. Irish Aviation Authority.
15. An Post.
16. Raidió Teilifís Éireann.
17. Shannon Airport Authority, public limited company.
18. Teilifís na Gaeilge.
19. Railway Procurement Agency.
20. Voluntary Health Insurance Board.
21. A subsidiary of a body to which this Schedule relates, including a subsidiary of such a subsidiary.
Essentially, any subsidiary or further subsidiary of the organisations listed will also be excluded and not considered public service bodies. That is some list of exclusions. I have picked three just to make a point. The amendments deal with the Irish National Stud Company Limited, An Post and the Voluntary Health Insurance Board. That was to get the topic on the agenda.
I thank the Deputies opposite and I understand their points. I listened on Committee Stage to the points about the definition of a public sector body and I thought it too narrow in the initial draft Bill. I amended it on Committee Stage to include the 11 bodies listed by Deputy Fleming. That is a fairly comprehensive sweep of all bodies. The definition of what constitutes a Department of State, for example, is set out in primary law already. A public service body is defined in section 7, and for clarity a list of bodies coming within the scope of the definition, such as Departments, is included. The list contains the National Treasury Management Agency, the HSE and the Garda Síochána as they come within the scope as captured by a parent Department. The Office of the Revenue Commissioners is also captured by the definition of a Department of State. All the subsets of Departments, such as the Environmental Protection Agency and virtually every organisation listed by the Deputy, are captured in that definition. A public service body is one that has a pre-existing public service pension scheme, and that is the definition that captures all of those bodies. I intend the registrar's website to list all of them, but the Deputy is correct that we would be left with a telephone directory if we were to insert that in a piece of primary legislation. The list would not be permanent because bodies come and go, and that is why the process is done this way.
This goes back to the debate on whether we should be exhaustive in a list within primary legislation or if we have a broader scope in how we capture bodies. We would do that by using broad phrases such as "Departments of State", which are defined in broad terms, with all the agencies and sub-agencies within that remit. The Deputy is correct that the list of included bodies would be voluminous if I listed every State agency and body to be captured. Those to be excluded from the definition of public sector bodies are listed in the Schedule under the title "Bodies that are not Public Service Bodies". All of them have a commercial remit but are excluded. The reason for their exclusion is related to the point rehearsed very clearly by Deputy McDonald with regard to the debate on section 5(4)(m). The bodies listed in the Schedule benefit from the exemption set out in section 5(4)(m), which provides that certain - although not all - communications between a body and a Minister who holds shares in or a statutory function relating to that body would not need to be registered. The exemption is intended to cover governance matters made within the ordinary course of business for a commercial State body. Other types of lobbying not of that ilk will be captured. I hope that gives comfort to the Deputy opposite. It might not be clear from a "plain English" reading.
That is my intention. The advice I have from the parliamentary draftsman is that intention is met in the way it is set out here.
The Minister has listed public bodies, including the NTMA and NAMA. Why did he need to list these if they are all under the Department of Finance anyway? I do not understand why he listed those if he is saying that any organisation under the auspices of a Department is essentially included under his definition of a Department of State. Why did he list all these? When I saw he had listed some, I thought we should be a little more comprehensive and listed more. If the definition of a Department of State includes the HSE and the education and training boards, why did the Minister need to include them specifically? I do not understand that. The Minister mentioned that the Revenue Commissioners probably come under the Department of Finance if the NTMA does. Why did he not list the Revenue Commissioners?
The Revenue Commissioners is a Department of State.
The Revenue Commissioners is a Department of State. I have learned something new today.
That is what I am advised under the definitions.
That is fine. Are An Bord Pleanála and the Competition and Consumer Protection Commission Departments of State, which will be included as a public body even though they are not listed? They are included under the parent body.
I will answer the question formally.
I will ask the question because I only have one more opportunity to speak. If the Minister is saying An Bord Pleanála, the Competition and Consumer Protection Commission and the EPA do not need to be listed because their legal standing is captured by the parent Department, that is good. I just do not know why they are not listed if that is not the case. Will the Minister clarify why the NTMA, etc. had to be listed separately and other organisations did not?
In regard to the Schedule, the Minister mentioned that these are exempted communications under the meaning of section 5(4)(m) which refers to communications between some of these bodies and the public officials serving in the Minister's Department in the ordinary course of business of the body corporate. They are exempted from that as well but are the rest of their activities exempted? To be clear, is the Minister saying that other than that exemption for corporate activities in section 5(4)(m), everything else relating to CIE contacting its parent Department will now be included in lobbying? If CIE wants to make a point to a Minister, other than on a corporate matter, for example, a business or a commercial matter, will that be captured under the legislation? If it is, the legislation is a bit broader than the impression I have been given, but I do not know yet.
The Deputy asked two net questions and I want to try to be as clear as I can in regard to them. In regard to the definition of what constitutes a public sector service body, it is any public body which has a pre-existing public service pension scheme. That includes all those the Deputy mentioned. As far as we are aware, they all have a pre-existing public service pension scheme and they are all captured. I hope that answers the Deputy's first question.
The second question related to the exemptions in the Schedule. The interpretation the Deputy just gave is right. I think I explained this in some detail to Deputy McDonald in regard to her amendment, but in terms of the shareholding function and corporate governance, those communications would not be subject to registering of lobbyists but normal communications outside of that would be, so lobbying outside the shareholding function, as defined in section 5(4)(m) would not be exempt.
That sounds great, and maybe it is, but it is confusing for anybody reading the Schedule. The heading states bodies that are not public service bodies but now the Minister is telling me that essentially they are all captured.
The Deputy would have to go back to what public sector bodies are excluded and how they are excluded.
What is excluded in regard to that group are those that come under section 5(4)(m) which deals with the shareholding and direction from a Minister about the policy. Let us take Horse Racing Ireland or the national stud, for example. I am not an expert on the horse racing industry but a large grant for the horse and greyhound fund goes through the Department of Agriculture, Food and the Marine every year. Will lobbying by Horse Racing Ireland, the National Stud or whatever group, which wants to get a larger fund from the Department of Agriculture, Food and the Marine, or a bigger share of a fund, be captured? I can understand issues in regard to corporate governance but this is a funding issue dealing with the commercial day-to-day activities. Will that activity be captured in the legislation?
If RTE, for example, spoke to the Minister about the licence fee, would that be considered lobbying under this legislation? It is not a corporate matter. It does not come under the exemption in section 5(4)(m). It affects its financial position. Will we say that everything to do with the company is corporate and that everything is excluded? If that is the case and all this is included, this is bad legislation. In terms of all those bodies, is the Minister saying that the only aspect included is in regard to the corporate matters referred to in section 5(4)(m)? I know people might find this a little bit tedious. It deals with the business of the body corporate.
The Minister might explain whether that covers all the business activities of the organisation. If RTE wants to lobby about the licence fee, is that exempt? Is that covered under the body corporate exemption or will it be listed as lobbying?
I am not supposed to answer again but I will do so if I can. It is my intention that that would not be exempt but, ultimately, I cannot say that definitively because it would be a matter for the registrar. The registrar will determine whether it is a corporate governance issue, that is, the narrowness of the question the Deputy put to me. However, as I said, it is my intention - the drafters have assured me that the intention is met - that corporate governance matters, appropriate to the shareholder, would not be subject to this legislation but lobbying outside of that would be. Those are the general parameters about which I am talking. If the Deputy wants specifically to pose a question as to whether this is a corporate governance matter, I could not give him a definitive guarantee here. Ultimately, it is a matter for the registrar to make that decision.
How stands amendment No. 43?
I will press a number of these amendments because there is a little bit of ambiguity.
I move amendment No. 45:
In page 10, between lines 32 and 33, to insert the following:
I move amendment No. 47:
In page 10, between lines 32 and 33, to insert the following:
"(l) An Post,".
I move amendment number 55:
In page 13, line 34, to delete "person" and substitute "individual".
It is proposed to include a technical amendment in this section to clarify that it is the name of the individual who has primary responsibility for lobbying activities within an organisation which would be included in the return to the registrar. The provision currently refers to a person which could be interpreted as an individual or an organisation. I am told the more correct word is "individual".
I move amendment No. 56:
In page 13, between lines 38 and 39, to insert the following:
“(g) in the case of a lobbying activity by a person under section 5(1)(a), 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), the costs associated with that lobbying action,”.
Others have pointed out that for any regulatory framework to have genuine transparency in public decision-making and open government, we need to know in respect of lobbying who paid how much to pitch what proposals or positions to whom. This is essential information if we are to have maximum public confidence in this system as well as full transparency.
On the issue of requiring financial disclosures as part of the registration system, the consultation process that we have had, which was quite exhaustive, highlighted the need to strike a balance between transparency, which is the objective of the Bill, ensuring confidentiality of commercially sensitive information and safeguarding the right to privacy. Account also needs to be taken of significant administrative issues in establishing consistent and comparable financial data which could usefully be included in any register. This is particularly the case in respect of in-house lobbyists where in some instances only a small portion of their time is engaged in lobbying communication and where such financial data could not be collected. The disclosure of financial data also presupposes that financial disclosures can give us some insight into the effectiveness of lobbying communication. Ministers and public officials would argue there is no direct link between the amount spent on lobbying and the degree to which it is successful. I do not accept the amendment.
People can judge whether the amount of money and resources invested relates to the extent of that influence but the Minister proposes to deny that information within this framework, which is wrong. I am not sure the arguments about commercial sensitivity and privacy tally exactly with what the Minister is setting out to do. I believe that lobbyists could shave down the costs associated with any particular lobbying activity. I imagine in respect of billing their clients they do that because they have to quantify their work, just like any other professional service. This is essential and it is a serious omission from the legislation.
Amendments Nos. 59 and 60 are related. Amendment No. 60 is a physical alternative to amendment No. 59. They may be discussed together by agreement.
I move amendment No. 59:
In page 15, to delete lines 10 to 39, to delete page 16, and in page 17, to delete lines 1 to 7.
We discussed this on Committee Stage along with other issues. I see no valid reason to protect from public scrutiny 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 - so-called - or particularly, or potential material financial loss to, or prejudice to the competitive position of, or contractual negotiations engaged in by, the lobbyist or his or her client. If the Minister is concerned to protect those various interests, the provision in the Bill should have been drawn much more narrowly. As it stands, one could drive a coach through this loophole. It suggests a level of secrecy in the form of delayed public scrutiny, which is not wise. The legislation aims to change all of that culture of secrecy and a closed atmosphere around this activity which, as the Minister has said correctly, is an entirely legitimate one and a legitimate part of the political and democratic process. I note the Minister’s amendment that is grouped with this one but I hope he has heard what I am saying. I think he has the essence of my concern.
Section 14(1) provides for delayed publication where the registrant believes the registration of the return relating to the lobbying activity would be expected to:
(a) have a serious adverse effect on—
(i) the financial interests of the State,
(ii) the national economy, or
(iii) business interests generally or the business interests of any description of persons,
(b) cause a material financial loss to the person to whom the information relates or prejudice seriously the competitive position of that person in the conduct of the person’s occupation, profession or business or the outcome of any contractual or other negotiations being conducted by that person.
Given the type of information which is required to be included under the terms set out in the legislation, I would not envisage much requirement for registrants to resort to this provision. Nevertheless, as a small open economy it is important that we have some mechanism to protect for a period genuinely sensitive information of this nature. The provision sets out several checks and balances to ensure that this saving provision is not misused. The thresholds in section 1 are high, requiring a serious adverse effect in relation to section 14(1)(a). In subsection (1)(b) the threshold requires “material financial loss” or to “prejudice seriously the competitive position”. That is the threshold that has to be met. The commission is obliged to consult relevant Ministers before making a decision on matters coming within the subsection. It must also take account of the public interest in coming to a determination. It has the option of making information available in summary form if there are some things it wants to exclude. There is a right of appeal to an independent appeals officer under section 23 and a right of further appeal to the High Court on a point of law after that. It is a saver clause that I am advised is necessary. It has high thresholds and on balance should remain in the Bill.
In respect of amendment No. 60, section 14 provides for delayed publication in certain circumstances on foot of a submission from the Standards in Public Office Commission, SIPO. I propose amendment No. 60 to section 14 to revert to the original timeframe of 21 days for the consideration of an application for delayed publication by the commission. This is to ensure that there is sufficient time for consultation as required under section 14(1). The Deputy may recall that on Committee Stage we changed this but SIPO has asked that I revert to the 21 days and I am minded, if that is what it believes it requires, to accept it.
I move amendment No. 60:
In page 15, line 29, to delete “14 days” and substitute “21 days”.
As amendments Nos. 61 to 63, inclusive, are related, they may be discussed together.
I move amendment No. 61:
In page 21, line 35, to delete "paragraph (a), (e) or (f) of".
Each of these amendments refers to section 22 of the Bill, which introduces restrictions on post-term employment as a lobbyist. I do not believe Deputies, Senators, Members of the European Parliament and councillors should be exempt from these restrictions, including the requirement on a person to obtain pre-authorisation by way of an application to the Standards in Public Office Commission if he or she wants to take up employment as a lobbyist within two years of leaving public office. The Minister and I have debated this previously. I reiterate that it might not be in the public interest for certain individuals to make their insider influence, knowledge or contacts available, especially to private commercial interests who might become their clients. For that reason, I believe people in this category should be covered by the provisions of this section of the Bill.
I concur with the view of most commentators - certainly, most of those whose views I am acquainted with - that a two-year cooling-off period during which the law would impose restrictions on post-term employment as a lobbyist would provide a much safer margin to protect the public from influence-peddling for hire. I do not believe such a longer period would be excessively onerous; indeed, it would be especially reasonable given that the Bill does not impose an absolute prohibition but rather makes provision for the conditional or unconditional consent of the Standards in Public Office Commission in appropriate cases, as set out in the legislation. I can almost pre-empt the Minister's response, which will involve what is reasonable and a person's constitutional right to work etc. We have debated all of this previously. While I am obviously convinced by the rights that people enjoy, I am not convinced that two years is excessively onerous. I suggest such a provision would be safer and much more clearly in the public interest, particularly as it is not an absolute express prohibition - it is just two years of conditionality. If the Minister cannot agree to accept this amendment, perhaps he will agree that we should keep a very close eye on this matter. I think we should maintain a watching brief in respect of the 12-month review.
I do not think I need to make an argument because the Deputy knows my view on this matter. While it is right and proper to constrain people's rights in order to impose restrictions on post-term employment on relevant designated public officials, those constraints must be proportionate, must not trample on people's rights and must be practical to operate. The categories included in the list are Ministers, Ministers of State, special advisers and public servants of a prescribed rank. I think what I am suggesting in the Bill is the right way to deal with this. I think the one-year cooling-off period or timeline that is proposed is an appropriate and practical provision. I will be anxious to see how it works out. This is the first time such restrictions have been brought in. If we feel they need to be adjusted over time, that is well and good. I think this is a very good starting point.
Is Deputy McDonald happy enough?
I would not go that far.
That is not the right term.
I move amendment No. 62:
In page 22, line 1, to delete "one year" and substitute "two years".
I move amendment No. 63:
In page 22, line 6, to delete "one year" and substitute "two years".
I move amendment No. 64:
In page 24, line 3, to delete “Registration” and substitute “Regulation”.
I move amendment No. 65:
In page 24, line 5, to delete “Registration” and substitute “Regulation”.
I move amendment No. 66:
In page 24, line 7, to delete “Registration” and substitute “Regulation”.
I move amendment No. 67:
In page 24, line 14, to delete “Registration” and substitute “Regulation”.
I move amendment No. 68:
In page 25, to delete line 13.
I move amendment No. 69:
In page 25, to delete line 15.
I move amendment No. 70:
In page 25, to delete line 20.
When is it proposed to take Fifth Stage?
Is that agreed? Agreed.
I thank the Deputies opposite for the constructive debate we had today and yesterday on Report Stage. I would like to withdraw a discordant word I used earlier. I am sorry. It did not characterise the constructive and useful nature of the debate we have had on this legislation. I try to approach all legislation with an open mind. When we are working on new areas of operation, we are not going to get them perfect the first time around. No side of the House is the full repository of wisdom. I thank Deputies McDonald and Fleming and others who have made constructive contributions to the debate. It will be interesting to see how this legislation rolls out in practice. We will probably have to iron out a few bumps when we see it being implemented. I hope to get it through the other House as expeditiously as possible. I want to record my appreciation once more.
I commend the Minister on the passage through this House of this legislation. We all appreciate that it is ground-breaking. It is also long overdue. We have raised many issues in a spirit of co-operation and common purpose. I do not doubt that we will reflect further on them as the legislation takes effect. I commend the Minister and his officials on the considerable body of work they have done on this Bill. We all wish the legislation God speed.