Amendment No. 1 is in the names of the Minister and Deputy McDonald. Amendments Nos. 1 and 64 to 67, inclusive, are related and will be discussed together.
Registration of Lobbying Bill 2014: Report Stage
I move amendment No. 1:
In page 5, line 14, to delete “Registration” and substitute “Regulation”.
I presume Deputy McDonald, who is not yet present, is gathering her papers. Following consideration of an amendment she tabled on Committee Stage, I agreed to revert to the original Title, Regulation of Lobbying Bill 2014. At that time, the Deputy indicated that this would be a better Title. The Long Title sets out that the purpose of the legislation is "to provide for establishing and maintaining a register of persons who carry on lobbying activities [this is done in Part 2]; to provide for a code of conduct relating to carrying on lobbying activities; to impose restrictions on involvement in lobbying by certain former designated public officials". The change of Title to the Regulation of Lobbying Bill 2014 is, therefore, appropriate. Amendments Nos. 64 to 67, inclusive, carry through this change of Title in section 26. The intent of amendment No. 1, in my name and that of Deputy McDonald, is captured by the others in my name.
Teachta McDonald will be here presently. She is just outside washing her hands.
Amendments Nos. 2 to 15, inclusive, 17, 18, 20, 21 and 58 are related and will be discussed together.
I move amendment No. 2:
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,”.
There are 19 amendments in this group, most of which are in my name and deal with what should be captured under the legislation. I will not be excessively repetitive when speaking on each of the amendments, because most of them deal with the same point. Following the Minister's response to what I will now say, I understand I will have two minutes to reply, or just over six seconds per amendment. I am sure even the Minister will agree that this is somewhat farcical.
I am sure the Leas-Cheann Comhairle will be flexible.
This is a matter for Dáil reform, and perhaps the Leas-Cheann Comhairle will take it on board.
The Minister was that soldier previously.
And I was often flexible.
It is unsatisfactory that I, as an Opposition spokesperson, will have mere seconds per amendment to respond to what the Minister is going to say. I think everyone will agree that is-----
The Deputy will have a third opportunity to comment, in respect of which the time available to him will not be limited.
That is correct.
In any event, I will deal with the amendments. I intend to dwell primarily on amendment No. 2, which suggests that the following be inserted into the Bill: "makes, manages or directs the making of any relevant communications to any member of Government in relation to appointments to State Boards". Any person who is involved in any such communications should be included under what will, following the acceptance of amendment No. 1, be henceforth referred to as the Regulation of Lobbying Bill 2014.
I wish to reiterate the point I made on Committee Stage regarding the appointment of John McNulty to the board of the Irish Museum of Modern Art in a botched attempt to have him elected to the Seanad. In recent weeks the Government Chief Whip referred to what was done in this instance as "underhand". The public believe this was the case. I do not believe that any person of honesty or integrity could state that what was done was anything other than underhand. The majority of members of the public will accept that this is the case. If any politician stated that what was done constituted a proper way to do business, I am of the view that he or she would do damage to the political system. Amendment No. 2 suggests that the Bill should make provision in respect of any person who "makes, manages or directs the making of any relevant communications to any member of Government in relation to appointments to State Boards". In other words, the actions of anyone who lobbies a Minister in respect of an appointment to a State board should be contemplated under the legislation. If the Bill does not make provision in respect of such appointments, then I am of the view that there will be a major gap in it.
This is a very good item of legislation in many respects, and I said as much on Second Stage. The Committee Stage debate proved quite fruitful and a number of amendments have subsequently been tabled in respect of voluntary organisations, etc. Those amendments will be extremely helpful and Members on all sides will agree that the legislation will be improved by them. However, lobbying in respect of appointments to State boards continues to be excluded from the Bill. That does not do anyone any good and it will diminish public confidence in the legislation. During the Christmas recess, I stated that the acid test in respect of the Bill would be whether it captured this basic issue. If it does so, then it will be good legislation. If it cannot do so, however, it will contain a fundamental weakness. The Minister will state that the legislation - in terms of its operation - will be reviewed 12 months after it has been enacted. Perhaps he will exclude the matter to which I refer from that review.
That is not what I said on Committee Stage.
I beg the Minister's pardon.
I will keep my powder dry for the moment.
I hope the matter in question will form part of that review.
I will now deal with the other 18 amendments in the group. The Minister provided a list of the people who, in the context of lobbying, will be contemplated under the legislation. These include Ministers of the Government and Ministers of State, Deputies and Senators, MEPs, members and CEOs of local authorities, special advisers and Secretaries General of Departments. Directors of services of local authorities will also come under the legislation, by order, in due course. The Minister said he might, after the review, include officials of non-public service entities - such as commercial semi-state bodies - under the terms of the legislation.
I ask that they be included at this early stage rather than waiting for an annual review 12 months after the legislation has been put into operation. The standard practice for establishing an organisation has not been to put the full system in place on day one but to put it partly into place to see how it goes. It will be like the freedom of information legislation; it will probably take ten years before all the bodies that should be included in this legislation are eventually added. There is no good reason some of them could not be included on day one.
Those who lobby Waterways Ireland should be included. The organisation is significant in terms of the work it does throughout the country.
Importantly, “people who lobby a consultant employed to carry out work for or on behalf of a public body or Government Department” should be included. This is a very important issue. The Minister for Finance is approving Goldman Sachs as the body to put a valuation on the Government's stake in AIB, which is 99% in State ownership. If one lobbies the Minister on that issue, one must be included under the legislation, but if one lobbies Goldman Sachs, which is where the action will be, and if Goldman Sachs is the body to which one wants to express one's views, one does not have to be included under it. Anybody who wants to get his view reflected in the ultimate report will lobby Goldman Sachs if he has a brain in his head at all. Goldman Sachs is not necessarily based in the country. Even if it were wholly based in the country, one would be outside the legislation if one lobbied it in its capacity as a consultant employed to carry out work on behalf of a public body or Department, in this case the Minister for Finance.
I have mentioned previously the consultants involved in respect of the licence for the national lottery. If anybody wanted to have an input, it would have been far more intelligent to lobby the consultants preparing the report for the Minister than to lobby the Minister directly. One can lobby the people who do the work, put the document together and compile the consultant's report for the Minister or Cabinet without being captured by the legislation. That is a tremendous omission. I am just citing an example that has arisen in the past 48 hours.
I also wish to include the lobbying of bodies whose funding is "made up of in excess of 50 per cent of voted expenditure". Many organisations, particularly in the health sector, including organisations operating under section 38 and section 39 agreements, fall into this category. In this Dáil, we have seen that some of the large charitable organisations that are operating under section 38 agreements often get 80% to 90% of their total funding from State bodies. Yet they are not being captured in this legislation.
We got a briefing note at a meeting of the finance committee subsequent to Committee Stage in which the Minister said he might include some bodies at the end of the annual review. I believe they should be included now. The legislation would be better if this were the case, but I will wait to hear what the Minister says.
Irish Rail should be captured for the principal reason that it is a State monopoly. There is no commercial or other reason, including in respect of financial sensitivity, it should be excluded. In all our discussions on various topics so far, the Minister has accepted that State monopolies are different from State companies in competition with companies in the private sector. Irish Rail is the only railway company operating and it has a monopoly.
The HSE has a budget of approximately €11 billion or €12 billion. While I am not sure, and I will not get into the question of how big the budget is before or after Supplementary Estimates, I believe it is of that nature. To exclude the HSE is a major omission.
Voted expenditure through the Oireachtas each year is in the order of €40 billion. Approximately €10 billion goes through the Central Fund. There are payments to the European Union, payments for politicians and judges, payments for election expenses and referendums, and the cost of financing the State debt, which is the biggest item covered in the legislation. We have spoken about that issue before. However, the funding for the HSE is well in excess of the funding in this regard. One can lobby the HSE on a multitude of matters but not be captured by this legislation. This represents a significant gap. The Minister gets the point I am making.
We have discussed Irish Water, a new commercial entity, several times. It is a State monopoly, which is why I have singled it out here. People who lobby it for various purposes to obtain contracts or financial benefits for an organisation or client should be required to register under this legislation. It was announced in the Government's Order Paper issued today that further legislation on Irish Water is coming up to deal with the non-payment of rates to local authorities and the distinguishing of assets and liabilities. Considerable lobbying might occur behind the scenes in this regard with Irish Water, but it would be excluded from the legislation.
Lobbying of the education and training boards should also be considered. These are very big organisations now. There is significant scope for lobbying them and they should be included.
I also include An Post, which is essentially a monopoly in the area of mail distribution. On the parcel side of the business, there is quite a lot of competition, but on the mail side, by and large, An Post has a monopoly in terms of its having the sorting offices and the ability to deliver. That could change but, as of now, An Post has a monopoly on the delivery of mail for domestic purposes.
Another organisation that many people around the country believe should be included is EirGrid. Again, it is another State monopoly. It looks after the electricity transmission system throughout the country, which is a matter of great public interest. Some 38,000 people made submissions on the Grid Link project from Cork through east Munster and up through Leinster towards the Dublin region. I understand the people who made a submission to EirGrid could have all their details accessed under freedom of information legislation. That is fine and welcome, and the process is open and transparent. In other words, when John Citizen or Joan Citizen wants to make a submission to EirGrid, the submission is subject to freedom of information legislation, but companies will be able to lobby EirGrid by way of another process of their choice and in an informal manner on why something should go here or there, or on whether a project should involve wind energy, renewable energy or otherwise, without being captured by the legislation. EirGrid employs many consultants to carry out work for it. So too does the National Roads Authority. One can lobby the consultants to have one's point of view expressed to EirGrid and not be included under the legislation.
The same applies to the Commission for Energy Regulation. It has a role in this area and people should know who is lobbying it. The National Transport Authority should be included. I made a point on the National Roads Authority. Again, it is a State monopoly. The Private Security Authority should also be included. These are organisations set up by the State to regulate various industries. There are people in the industries with vested interests. It is important that those with vested interests who are lobbying the regulatory and registration authorities be subject to a mechanism ensuring public transparency.
Tourism Ireland should be included, as reflected in amendment No. 15. The examples are clear-cut. Large hotel groups might want to lobby Tourism Ireland for particular benefits for their section of the industry, as might representatives of certain regions or people with particular ideas. If they are lobbying Tourism Ireland, which is essentially operating with funds voted from this House, there should be a requirement to register.
Amendment No. 17 is in the name of Deputy Mary Lou McDonald, who has yet to speak. I will speak now on amendment No. 18, in the name of the Minister, because I will not get a second chance.
The Deputy will get one, and a third.
A very short second chance. Amendment No. 18 is in the name of the Minister.
It is probably unusual that the Opposition is speaking on the Minister's amendment before the Minister gets to speak on it-----
A little odd.
-----but, because it has been grouped with amendments that were initially in my name earlier on in the legislative process, it has come in under the group. I must respond in the dark, not knowing precisely what the Minister will say. However, on the face of it, this looks like a good amendment. It captures a lot of what we spoke about at Committee Stage. Essentially, we spoke about voluntary organisations. I mentioned some of the large organisations in the country that have volunteers working on a daily or weekly basis as local officers. In particular, we mentioned the farming organisations. There would probably be some of the trade union organisations as well, and some of the charitable organisations. Many of these organisations' members, local officers and local chairman who are busy fundraising - rattling the money boxes on Saturdays and Sundays - want to get their organisations and the work they do recognised, and there is no conceivable way any organisation could be expected to capture all of that particular work. We had asked that volunteers not be included in the Bill, and this is what I note the Minister proposes to do here. I think everybody will recognise that this amendment is a good day's work. It is probably one of the most important amendments we will have here today, because there was a concern in this regard. The Bill as drafted was well-intentioned, but it could have been a little overarching, and maybe over-prescriptive, or there was the possibility for somebody to be over-prescriptive in its implementation. I note that the Department conducted pilot surveys with different organisations to get feedback. That, obviously, has fed into this as well. We heard from other organisations. I do not have the correspondence with me here, but it dealt with an organisation in the retail sector. I forget the particular organisation, but all members of the committee, including the Minister, will have received that correspondence about how a shopkeeper might be part of a large retail group - I do not think it was RGDATA - when a Minister goes into a local shop to get his newspaper and the shopkeeper says something to him. The shopkeeper is only a member of an organisation and should not have to be captured in lobbying a Minister. However, if the national organisation chooses to formally lobby the Minister, by all means, that should be captured. People understand and accept the principle behind that. It will make life simpler.
People are worried about over-regulation. It will be included in the legislation that the body makes a relevant communication where lobbying is done by an employee of the body centrally - that is a good idea, as they are the ones who work on a day-to-day basis - or where it is done by a person who holds, in the body, any office that is a remunerated position - one might not be a full-time employee but there might be a formal mechanism for one to be remunerated in the post that one holds, in a region or nationally, in the organisation - whose functions relate to the body on whose behalf one is lobbying. If one is remunerated - if one is a person who holds a position in those bodies - one should be included. However, other ordinary persons who are merely volunteers in the organisation should not be so captured by the Bill. That is the essence of amendment No. 18. I welcome that and I think everybody will welcome it as well.
My amendment, No. 20, deals with the issue of the size of an organisation. It refers to "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". On Committee Stage, I had a figure of €5 million. The Minister stated that the audit figure for some companies was at a higher threshold than that, and I came back with a revised threshold to bring it to over €10 million. I have no difficulty with that. The essence of what I am getting at in amendment No. 20 is that one could have a large organisation - almost a shelf company, with few or no employees - with a much higher level of turnover, at €10 million or €20 million. I cited several examples. Even a company that gets a contract to build a major school, which could be over worth €10 million, might be merely a holding company within a group, and there might be no employees, but the ultimate turnover in that group could be well over €10 million. That is why limiting the provision to include the number of employees only could result in the omission of many holding companies or companies within a corporate structure that do not have employees but have significant turnover and influence, and maybe have only two part-time directors. That is why I have asked that employers whose organisations have a turnover of over €10 million be included.
Amendment No. 21 is in the name of the Minister.
Amendment No. 58 deals with the central point on which I spoke earlier. It states:
In page 14, between lines 23 and 24, 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.".
That is the essence of what the Minister has taken on board. He is saying that an employee in a remunerated position in the organisation that is lobbying must be included under the Bill, but the spirit of what I asked for here is that the work of unpaid volunteers of such an organisation should not have to be included under the Bill, for the reasons I outlined. It would be far too cumbersome. The Minister has accepted the principle of that in his amendment.
That is a brief explanation of these 19 important amendments, 16 of which are in my name. I would like to see all of these included in the Bill, now rather than in 12 months' time.
It is our job to recognise that this is a good Bill. By European standards, even though it is only our first stab at it in Ireland, it would be considered a good Bill. I am here trying to make it that little bit better.
My amendment, No. 17, harks back to an issue that we debated on Committee Stage. It revolves around a concern I had with the Bill's proposal to exclude lobbying by groups with ten or fewer employees. If memory serves me, on Committee Stage the Minister set out his concerns about having an onerous administrative burden on small businesses. Be that as it may, I remain of the view that this provision in the Bill creates a dangerous loophole for those firms or partnerships which would prefer to hide their lobbying activities rather than comply. I put it to the Minister that if the registration and reporting process is available online, if it comes with clear instructions and is not otherwise onerous, it should not pose an insurmountable problem for those smaller organisations.
The Minister countered this amendment on Committee Stage with concerns about an onerous burden. I do not believe that is necessarily the case. On the balance of consideration, it is more important to ensure that there is not such an obvious loophole to be potentially exploited within the Bill. It will be a matter of good practice to ensure that the registration and compliance procedures are accessible and administratively friendly for all organisations.
While I am on my feet, I might raise a concern I have about amendment No. 18, which Deputy Sean Fleming lauded as a protection for volunteers. We would need to consider this quite carefully. Although we would not wish to overly burden any organisation, or certainly a volunteer organisation, with excessive red tape or bureaucracy, the amendment appears to have the effect of exempting from the registration requirement any communications made by volunteers or unpaid officials. That is the gist of it. This could constitute another loophole that might be exploited by the unscrupulous to avoid registering. We need to weigh this up. Arguably, a commercial venture or any entity could acquire the services pro bono of A. N. Other, or, mar dhea, volunteers, and engage in lobbying through that mechanism. I have only recently been acquainted with the concept of astroturfing.
Has the Minister heard the term?
I am advised that it is a scenario in which fake-----
Does it have anything to do with football?
It has nothing to do with football, hurling or any other sporting endeavour. It is a scenario where fake grassroot entities emerge to lobby in a voluntary capacity on behalf of corporate or other interests. In fact, there have been some headline cases-----
I heard of some political interests using that approach as well.
-----for instance, in the United States. I raise it as a serious point because, although one does not want to penalise voluntary effort or smother people with administrative burdens, the objective is to create and codify a system whereby lobbying is fully transparent and regulated. Deputy Sean Fleming has given an unqualified welcome to amendment No. 18, but I have deep reservations about it and I would like the Minister to address them when he gets to his feet.
In respect of Deputy Sean Fleming’s amendment No. 58, which would exempt lobbying done on behalf of registered representative or advocacy organisations by volunteers, I support and understand the intent of the amendment but it carries with it the same danger of creating a loophole that would be potentially exploited for the purpose of avoiding the very system of regulation that the legislation envisages.
A number of the amendments – Nos. 2 to 15, inclusive, and Nos. 17 and 18 - depend on whether we are to have a broad or narrow approach to the registration and regulation of lobbyists. At the moment, unfortunately, the Government’s approach is to take quite a narrow view of who can be lobbied and who can do the lobbying. It will not capture in any way the real lobbying that goes on and the myriad different tactics and types of lobbying that take place.
Lobbying is central to how our capitalist democracy works. It is how the rich and the powerful communicate their interests, primarily to the established political parties, and get their interests eventually transferred into legislation or whatever they want. Lobbying is a huge business involving billions of euro across Europe. I will give one instance at EU level. When I was an MEP, traffic light coding of food labels was an issue. The intention was to make it simple for consumers by having the fat and salt contents of food, for example, denoted in a simple green, orange or red colour scheme. The food industry across Europe, including from Ireland, spent €1 billion lobbying to stop the proposal from going through the European Parliament. At least 30,000 people were employed on the issue, at Brussels level, in lobbying on behalf of various interests.
Those who know how lobbying happens know that some of it is done by lobbying companies acting on behalf of industries or individuals, which arrange meetings in order to make representations on behalf of a company or industry. There is a simple meeting that is clearly for the purpose of lobbying. I presume such organisations would be captured by the narrow definition put forward by the Government, as they should be. There should be a register of lobbying interests and the lobbying that takes place. However, lobbying is a much broader phenomenon that is based on informal contact - a revolving door. The relationships between a small political caste in this country and a small big-business elite are the basis for much of the effective lobbying that takes place. The danger in terms of what is proposed is that it will not capture such activity. In particular, I echo the point made by Deputy McDonald about astroturfing, with reference to amendment No. 18. It is not just an American phenomenon. My experience indicates that astroturfing - false grassroot campaigns driven by big business interests and involving, in some cases, duped volunteers - is a tactic used at European level. One sets up a false campaign and covers one’s interest with a veil of public interest, and one mobilises people on that basis. Such people would not be captured by the amendment, even though this is a form of lobbying. Any loophole that exists will be exploited by big business and other interests in order to have their interests reflected in the corridors of power. For that reason, I oppose amendment No. 18 and support Deputy McDonald’s amendment No. 17.
It is obvious that amendments Nos. 2 to 15 should be supported. The various semi-state bodies that operate with taxpayers’ money should be brought within the remit of the Bill, and lobbying representations to those organisations should be covered. The most current example is Irish Water. It is obvious that significant money could potentially be made by various contractors that have an eye to full privatisation at a later stage but that for now want to get contracts to design, build and operate various elements of the water services infrastructure. Much money is to be made from those valuable contracts. The same is true of the outsourcing of work by the HSE and various other bodies mentioned. There is a lot of money to be made, and that requires much representation, which should be covered by the legislation.
The bodies are covered by the freedom of information provisions. I thank the Deputies opposite for their contributions and amendments. This is an important range of amendments, on which we had a very useful discussion on Committee Stage. I have been reflecting very carefully on all that was said in order to deal with this as fairly as I can. It will be difficult to please all of the Opposition Members, since not all the views on the other side of the House are in sync. However, I wish to make one general point first.
Deputy Paul Murphy was not involved in the Committee Stage debate. That is not by way of criticism. We had a very good debate at the time. I do not regard lobbying as a bad thing. Lobbying is an essential part of a functioning democracy. Every citizen is entitled to lobby me, Deputy Paul Murphy and every other Member. Every local community organisation is entitled to lobby, as are bodies such as the IFA, IBEC or the trade union movement, and to put their point of view to us. What we are doing in this legislation is not based on the perspective that lobbying is intrinsically bad and needs to be controlled. Lobbying is the lifeblood of our democratic system but for too long people have peddled influence, whether it was in the Galway tent or other places, with those in power in a less-than-transparent way. While in opposition I produced legislation on the registration of lobbyists and, latterly, I have done so in government. It is part of a suite of measures which often overlap and interlink.
With regard to the points Deputy Paul Murphy made about people looking for contracts with Irish Water, the company is subject to FOI provisions. All documentation and any communication in that regard is subject to FOI. That is the reason this suite of transparency measures are interlocked. The Registration of Lobbying Bill is not a sui generis piece of work; it is linked into and intermeshed with other ethics legislation and freedom of information legislation that this House has enacted in recent times.
I wish to try to do justice to the quite different points that have been made in the amendments tabled by the Deputies opposite. If I may, I wish to treat them individually and sequentially. I will deal first with amendment No. 2, in the name of Deputy Sean Fleming. It is different from the rest of the amendments. I feel very strongly about it because - perhaps I have not explained it well enough - my intentions on the matter are fundamentally misunderstood by the Deputy. The changed environment that I propose, which has been accepted in terms of the model of appointments to State boards, is designed to be as open as possible.
In my judgment, with all due respect, I think Deputy Fleming's amendment misses the point. He says that nobody should lobby for a place on a State board; I want everybody to lobby to go on a State board, or to be free to lobby to go on a State board. For instance, a local community organisation might decide that Deputy Mary Lou McDonald would be a great person to be on a State board, and its members could decide to write to the Public Appointments Service or to the Minister to ask for her to be considered. Organisations promoting women or people with disabilities, which might decide there are not sufficient numbers of women or disabled people or people from ethnic minorities on State boards, should be entitled to ask that they be considered - to put the case that they are people with unique qualifications and should be considered for appointments to State boards. My view on appointments to State boards is that people should be encouraged to lobby, in that sense - to promote themselves, to advance themselves. Once they submit their applications to the PAS, there will be a transparent selection system and the list of candidates will be put to the Minister or to the decision makers at the time, be that the Government or whoever. This is important, in my view, particularly in a generic way, if it means the inclusion of more women or more rural people or urban people, depending on the issue. People should not be debarred from doing so, and I hope that point is understood by Deputy Fleming. I do not think he is opposed to that because I think he is referring to the old-fashioned notion of people making a phone call and asking to be put on a board. That should not be allowed, but the new transparent system does not allow for that in any event.
The scope of amendments Nos. 3 and 5 to 15 is very wide, seeking to bring all communication within these bodies within the scope of what constitutes lobbying activities in the definition. This is a much broader approach that applies to other public service bodies within the scope of the Bill. I understand the Deputy's concern that the framework of the Bill should be as comprehensive and as robust as possible. This is a view I share. I wish to reassure Deputy Fleming that it will be possible, as I indicated subsequent to our discussions on Committee Stage, under section 6(1)(f) and (g), to prescribe that public servants, or other office-holders or persons, be designated as public officials under the Bill.
It is just a matter of approach. Neither of us believes that from the beginning we will capture everybody who will ultimately be subject to this legislation. Whether the list is broadened from the beginning and we decide to start with this list, or we decide that the Minister will have the capacity to add categories to the list with a formal review as the Bill progresses, is just a matter of difference of approach. I think my approach is more open and more inclusive and will allow for more discernment, because there might be categories of people who might be lower down in the totem pole of public administration but actually have more relevance to the Bill when we see how it works in practice. I hope that is understood.
The North-South implementation bodies established under the British-Irish Agreement Act 1999 carry out their functions on an all-island basis and are responsible - as I have said many times with regard to other legislation - to Ministers in both jurisdictions. Further consultation will be required in relation to these bodies. I do not think they should be excluded, but how they are included is a matter for discussion on a North-South basis.
As I mentioned previously, it is my intention to extend the scope of this legislation on a phased basis. It will be difficult to get this embedded. At the outset, when I looked at the suite of legislation I was trying to drive through on the reform side, such as freedom of information, registration of lobbyists and all the other bits we have dealt with, I thought this would be simpler than it has proven to be. With regard to the concerns of organisations and people, we have had more interaction than most with bodies and heard the concerns expressed about how this legislation will work. At the outset we had a very open forum at Farmleigh - which Deputies opposite may have attended - during which we had a very good debate.
Section 6(3) requires the Minister to have regard to any recommendations that may be made in a review of the legislation. On foot of suggestions from the Deputies opposite, this is set out in section 2: there is a compulsory mandatory review and the Minister must have regard to the outcomes of that review in deciding whether to designate persons, as well as having regard to the public interest. In the event that the designation of certain persons within the bodies listed in Deputy Fleming's amendments is in the public interest, it then will be possible for the Minister to use the existing powers once this Bill is enacted to extend the cover and capture those. I hope Deputy Fleming will accept that this is a reasonable way to proceed.
On amendment No. 4, categories of person other than public servants can of course be designated as the lobbied under section 6(1)(g). As I outlined, it is my intention to extend the scope of this legislation on a phased basis, beginning with senior civil servants and senior-level staff in local authorities. We both agreed it will be a shock to some of them to know that they will be involved in this legislation and they may need some training when it comes to that. This matter will be monitored in the first 12 months of the operation of the legislation, in the context of the required review. Section 6(3) specifically requires the Minister to have regard to any recommendations made in such a review in deciding whether to designate persons under section 6(1)(g), as well as always having regard to the greater public interest. I refer to the point strongly argued by Deputy Fleming. In the event that the designation of certain consultancies is in the public interest, it will be possible to bring those under the scope of the Bill. However, given the real variety of consultancies in the public service - Deputy Fleming instanced one which would have a significant resonance with the public - many consultancies would be at a much lower level, and whether it would be appropriate to include a broad provision along the lines that Deputy Fleming suggested, which will capture them all, or to have a more focused amendment is something we can debate as this feeds out in practical use over the coming 12 months.
Turning to amendments Nos. 17 and 20, proposed by Deputies McDonald and Fleming, respectively, both deal with the same issue. One of the concerns expressed by Deputies on Second Stage and Committee Stage was that there should be clarity. Most Members who contributed on Second Stage reflected the number of messages they were receiving from the general public and from organisations, which was that there should be clarity around who is in and who is out when it comes to registration and the requirement to register under this legislation. This has been a recurring theme raised by all the stakeholders during the extensive consultation process we have undertaken over nearly two years. My primary focus, therefore, is to put in place a registration framework from the very beginning that will be easily understood and in which there will be clarity and simplicity around who is required to register. There should be no ambiguity about that.
Moveable factors such as annual turnover, whether the annual turnover should be changed because of a contract, whether a person is suddenly included or excluded, or whether a person should have been included previously are genuine concerns that have been expressed to us. I think we have settled on a point from the beginning that is a reasonable point of inclusion. I accept both Deputies' points that it is open to debate whether the cut-off point of ten full-time employees is the right pitch. I do not have a closed mind on this point.
Is eight any better than ten? The public interest objective of the Bill should be the prime aspect on which we focus. It may be that in time, when we have practical experience of the implementation of the Act, once it becomes an Act, we may move to a more sophisticated mechanism rather than a simple numbers mechanism, but I assure Deputies that this is what is required in the beginning for people to have confidence that we will do this in a way that works from the start. If we were to go down to one paid employee, we would be capturing the normal work of Deputies, for example, and making them lobbyists under the Bill. We should have regard to this.
I envisage revisiting this issue once the first review is finished after 12 months. I have no difficulty with this, and whether it is me or somebody else sitting in this seat, I do not suppose my successor would have any difficulty in giving a practical report on how it has worked after 12 months and stating whether a different definition would be more appropriate. I hope Deputies will accept my bona fides in this regard.
With regard to amendment No. 18, which I have tabled, it is my best effort to capture what I thought was the consensus view of the Opposition - although I hear it is less than a consensus view now - with regard to the treatment of volunteers. On Committee Stage, based on a coherent and logical argument made by Deputies opposite, I agreed to further consider an amendment tabled by Deputy Fleming on the exclusion of unpaid volunteers from the requirement to register under the Bill. It has always been my policy that unpaid volunteers would not be captured by the requirements of the Bill. This was signalled when I published the Bill and, if I am not mistaken, in my Second Stage speech. This is primarily to ensure the Bill is practically workable.
During the consultation process, stakeholders made it clear that very often they do not have information on what communications their volunteers are conducting, particularly in large and dispersed organisations such as the Irish Farmers' Association. Every farmer in the country is probably a member of some farming organisation. If such a farmer, who has no paid function but is a volunteer activist in the IFA, were to have words in the local shop with a local Deputy about an issue, the IFA's national headquarters would have to know and register the farmer as a lobbyist. That is one example of how it is not practical. It is a strong case made to me by such organisations with a very large cohort of volunteers. Although we might be purist in saying we need to get to the heart of this by ensuring every organisation and every volunteer is captured by it - I hear what Deputies Mary Lou McDonald and Paul Murphy stated in this regard - we cannot enact legislation that is brought into disrepute by the burden it places on organisations from the very start.
The concern of the organisation that spoke to us was centred on the administrative burden of capturing such information, and a genuine and honest concern that inadvertent non-compliance was likely given the dispersed nature of such organisations. From a policy point of view, I am happy that much of the communication made by local volunteers would not be of a sufficiently important volume or complexity to warrant registering, having regard to the public interest. An occurrence in which a local farmer talks to a Deputy or somebody in the local pub or mart is probably not of sufficient merit to require it to be registered and logged in the public interest.
I propose this amendment to clarify that a representative or advocacy body which exists primarily to take up particular issues will only be required to register a relevant communication where it is made by an employee of a body or by a remunerated officer whose function relates to the activities of the body as a whole. This is important with regard to the point made by Deputies McDonald and Murphy. The communication of a remunerated paid official will be captured, but where the communication is made by an employee of a body who is not a paid official it will not be.
Section 5 sets out the meaning of carrying out lobbying activities. It states that for the purposes of the Act a person carries on lobbying activities if the person makes, manages or directs the making of any relevant communication in any of the circumstances to which section 5(2) applies. Section 5(3) determines what is a relevant communication. It states that relevant communications "means communications (whether oral or written and however made), other than excepted communications, made personally (directly or indirectly) to a designated public official in relation to a relevant matter." This might address or allay the fears of Deputy McDonald.
We are dealing with a broad range of amendments, and I apologise for taking some time but I hope the House will bear with me. The second of these amendments that I have tabled is amendment No. 21. At present, this subsection exempts from registration requirements requests from a public service body for factual information to be submitted. It is not lobbying, as it is a request for data and factual information. It is proposed to include an amendment to ensure this exemption also covers requests for factual information directed to a public service body. For example, if a journalist acting on behalf of a newspaper, which is the employer, contacts a designated public official to seek factual information on public policy, this would not require registration, as the person is simply looking for details and facts which would be on the public record in any event.
I will briefly deal with amendment No. 58, tabled by Deputy Fleming, who wants to remove unpaid volunteers from the scope of the Bill. I hope amendment No. 18, about which I have spoken, addresses the concerns raised by Deputy Fleming about the exclusion of unpaid volunteers, and I hope he will not pursue the amendment.
Is the Minister accepting the amendment?
I want to be comprehensive in my response.
Deputy Fleming has two minutes. The screens are not working, for some unknown reason, but the Clerk is keeping watch.
We will not fall out. The Minister has spoken about amendment No. 18, and other Deputies have highlighted other issues. The principle of it is good. I accept that if the Minister tried to get everything absolutely perfect we could be tying it down from here to infinity. The Minister is concerned that it might not fully work, and of course every piece of legislation is always subject to attempts at abuse. I take it that the gist of what the Minister said is that the other 19 amendments in this group will not be accepted-----
-----although he is not actually saying so. This is what I am trying to establish.
I thought that was implicit in what I said.
I got that impression. I wish to have a few points clarified. The Minister stated that some information is covered by freedom of information legislation and can be obtained in that way. This is limited, and commercial sensitivity probably excludes most of what we are speaking about. The Minister also stated that I do not appreciate the system he has put in place with regard to the Commission for Public Service Appointments and people lobbying for positions on State boards. I never suggested that people should not lobby for such positions; I just stated that it should be covered by the legislation. We are ad idem on everything the Minister is including in his system by way of guidelines. I suggest taking it a step further and making it statutory. I do not contradict anything the Minister has done and I am not stating that people should not try to make contact. There is a process and I am all for it. I am just saying that people contacting Ministers should be included in the legislation.
Would that not be a disincentive for them to seek such positions?
But under the system the Minister is establishing, which is on a voluntary basis, they will have to go through the other system anyway.
No. I am saying that having to register as lobbyists would be a disincentive for people to seek such positions.
Well, I think the Minister gets the point. All I am saying is that I would prefer if the new system being put in place was on a statutory footing rather than using the Minister's approach, which is based on guidelines, because guidelines are voluntary.
The two minutes are up.
Will I have another opportunity to speak?
An open-ended one.
I do not disagree with the Minister's concern to ensure he does not cause a logjam or a completely unreasonable set of burdens, particularly for voluntary organisations.
I take his point about, for example, the IFA and the farmer who is a member of that organisation making a representation. I think that is fair enough.
However, I hope the Minister recognises the counterpoint to that which is the possibility of some using this practice of AstroTurfing to sidestep the legislation in a bogus way. The Minister has made the point well. This is new legislation introducing a new regime and a new level of transparency. I have no doubt there will be some resistance and kickback from some quarters and in others perhaps valiant attempts to sidestep the legislation.
I know the Minister will not accept the amendment at this stage, but I hope he takes the point that has been made as a serious point to be to the forefront and to have some capacity to review whether that has happened. The Minister should give some consideration to that.
I remain unconvinced by the Minister's arguments against my amendment No. 17. Far be it from any of us to impose onerous burdens on anyone, but we are not asking anyone to split the atom here. It is a process of registration and then registering communications. It is not rocket science. If the system itself is efficient and lean that should relieve any concerns over onerous administrative burdens.
I covered the issue about the guidelines versus legislation for State boards. It is not the substance; it is the mechanism of how it should be captured. I am taking it one step further.
The Minister has acknowledged that the inclusion of amendments Nos. 3 to 15, inclusive, would have very wide implications. Deputy Catherine Murphy asked whether we were introducing narrow or broad-based legislation. The consensus is that the Minister is trying to make the legislation simple and clear-cut but could expand it in time.
Neither the Minister nor I know if any of us will be here or there when the first annual review is completed because it will take place after the next general election. While I am not saying I do not have confidence in the Minister, I certainly cannot offer confidence in whoever might be the next Minister.
It might be the Deputy, himself.
It might be me or God knows who will be there. I am just trying to tie down the incoming legislation by making it as broad as possible at the early stage. That was the essence of listing all those bodies. As the Minister knows, many of them are public bodies, including regulators. There is no commercial issue involved in any of those.
I wish to clarify a point. I spoke about an organisation that had been in contact with members of the committee. Since Committee Stage we received e-mails from the Convenience Stores & Newsagents Association, CSNA, asking about the volunteer issue, storeowners and whatever. I might have mentioned some other organisation. I want to make clear that is the particular organisation. I thank its representatives for the trouble they went to - I think they sent e-mails the morning after Committee Stage was held.
I am delighted to note that somebody out there was watching it - I was also impressed by that aspect of it. I know the Oireachtas proceedings are carried on television to quite an extent, but the Committee Stage can get utterly lost down in the committee rooms. It is heartening to note that people who have an interest were watching closely and were able to follow the minutiae. Other organisations also contacted us and that is appreciated. At least people were aware of what we were discussing.
Amendment No. 4 refers to "a consultant employed to carry out work for or on behalf of a public body". I mentioned Goldman Sachs, which is just this week's example. There will be other examples next week and NAMA or some other body will appoint people to do something the following week. The Minister said the inclusion of the word "consultant" was too broad. A consultant could be brought into some public body just to do a bit of word processing - it could be as small as that. It could be also a massive situation. I accept the word "consultant" is broad. What one person might call a consultant the next person might call a contractor or a subcontractor - I understand that. However, I think the Minister understands the essence of what I was saying.
I know the Minister has said they could be brought in under the annual review under section 6. Section 6 is probably the section that will be of most interest to people. This relates to the bodies that can be brought in at a later date. Section 6(g) refers to "any other prescribed office holders or description of persons." They can be included by the Minister in due course after the annual review. It could include people who are carrying out designated work on behalf of a public body.
The Minister will share my concern that this leaves it quite open. I know he wants to get it on the Statute Book. However, in his effort to get a simple workable piece of legislation on the Statute Book, there is a compromise between simple and workable, and broad ranging and perhaps bureaucratic. I am concerned that he has not achieved the appropriate balance. The Minister is resisting entirely anything he feels is broadening it. I had hoped he would have been a little more open-minded on those issues.
On amendment No. 58, I just mentioned an organisation that referred to the issue of volunteers. I accept what the Deputies alongside are saying. Is it not good that all Opposition Members are not ad idem on everything because it would be a boring old place if there were only two points of view - those of the Government and those of the-----
There could be an alternative government if that were the case.
I have no idea about that. There is nothing wrong and it is quite good that there would be differences of emphasis and approach among those on the Opposition side because we are elected individually and separately under different mandates and we have a different mandate. Of course, we agree with each other on occasions and sometimes we agree with the Government. I believe we had a vote in the week before Christmas where my colleagues in opposition voted with the Government against the Opposition. That is a reflection of how the Chamber operates and there is nothing wrong with that.
I was thinking of an organisation such as Society of St. Vincent de Paul. There are local chapters everywhere and one chairman might talk about a specific matter. They ask for a change in a budget and we have to do something. This is what is happening to us and this is what we are finding. It should not be lobbying if the local chairman is coming out at 7 o'clock of a night to visit houses and arranges to meet a Deputy in the run-up to a budget.
Most of these organisations prepare pre-budget submissions in any event if they are large organisations. Members of the Oireachtas Joint Committee on Finance, Public Expenditure and Reform certainly met representatives of at least 30 organisations to discuss their pre-budget submissions. Many of the organisations with volunteers that we are talking about capturing here would be making national submissions. By and large what a local volunteer would talk about would be consistent with the one that is captured under the legislation through the national organisation in any event. That is not to say we should not be eternally vigilant.
That is the essence of what I have to say on my group of amendments - approximately 20 of them. I think the Minister gets my point but he is not going along with it fully at this stage. I would have liked to have had these amendments included in the legislation, but the Minister has indicated he is not for turning on it at this stage.
I move amendment No. 6:
In page 6, between lines 29 and 30, to insert the following:
“(a) lobbies Irish Rail and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 7:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies the Health Service Executive and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 8:
In page 6, between lines 29 and 30, to insert the following:
“(a) lobbies Irish Water and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 9:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies Education and Training Boards and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 10:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies An Post and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 11:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies EirGrid Plc and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 12:
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. 13:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies the National Transport Authority and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 14:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies the Private Security Authority and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 15:
In page 6, between lines 29 and 30, to insert the following:
(a) lobbies Tourism Ireland and such person shall be required to be a registered person pursuant to section 8,”.
I move amendment No. 16:
In page 6, between lines 36 and 37, to insert the following:
“(2) Such a person under section 5(1)(b), where the employer has been issued a CHY number by the Revenue Commissioners, provided that the relevant communications relate to relevant matters that concern the advocacy or other advancement of the employer’s main charitable purpose, such activity shall be considered to constitute ‘advocacy activities’ and therefore will have no adverse consequence for the employer’s charitable status.”.
I want to refer to amendments No. 16, 41, 53, 54 and 57, which are grouped together.
Is that agreed? Agreed.
This set of amendments was submitted with the intention of permitting charitable organisations to participate and open their advocacy activities to scrutiny without unnecessary and unfair penalty. The Minister is aware that charitable organisations have been most anxious to be captured within this Bill. They see it not least as part of rebuilding public confidence in charitable organisations.
As the Minister knows, the sector had initially received advice from the Revenue Commissioners to the effect that if they or their staff register, as appeared to be the intent of the Bill, by law, in the absence of a disclaimer or any other clause indicating a distinction or other express authorisation, this could be considered lobbying activity and would jeopardise their charitable status. We discussed the matter in some detail on Committee Stage.
I want to advise the Minister that I will be withdrawing all of these amendments in light of advice received by the Minister which was shared with members of the Select Sub-Committee on Public Expenditure and Reform subsequent to the Committee Stage debate. The legal advice received by the Minister and his officials is that this Bill in its provisions as they stand will not have an adverse effect on the status of the charities. The sector is more than satisfied with that clarification, and I thank the Minister for it. I will be withdrawing the amendments.
I move amendment No. 17:
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,”.
I move amendment No. 18:
In page 7, between lines 8 and 9, to insert the following:
(3) For the purposes of the operation of subsection (1)(b) in relation to a body in circumstances in which paragraph (b) or (c) of subsection (2) applies to the body, the body “makes” a relevant communication only—
(a) where it is made by an employee of the body, or
(b) where it is made by a person who holds, in the body, any office—
(i) in respect of which remuneration is payable, and
(ii) the functions of which relate to the affairs of the body as a whole, in his or her capacity as such.”.
Amendments Nos. 19 and 31 are related and may be discussed together.
I move amendment No. 19:
In page 7, lines 15 and 16, to delete “apart from the individual’s principal private residence”.
This is an issue I have raised with the Minister. It proposes to exclude an individual's principal private residence in respect of lobbying activities. We have had a discussion on this, but I am a bit like a dog with a bone on this particular issue, not least because we have had such a history of corrupt and corrupting actions in respect of planning in this jurisdiction. We are all too familiar with that. I want to see if I can get somewhere with this.
The issue at stake in the Bill is communication with a designated public official, which is defined in the Bill. The communication has to be in respect of relevant matters, which are, again, defined. Changes in public policy laws, regulations, awards of grants, loans, contracts, licences or other authorisation involving public funds are defined in section 5. Given that the Minister has two sets of definitions, qualifications and limitations, I do not see any reason to exclude the principal private residence. It would be most unusual that a person would be in touch with a public official in respect of public policy laws, regulations, awards of grants, etc., in respect of his or her principal private residence, but should it happen it ought to be captured in the Bill. I am at a loss as to why this exemption has been made. The Minister may confound me and give a different explanation as to why he has stuck to this.
I thank the Deputy. I understand that, not only on this issue but others, she quite often pursues things vigorously. That is to her great credit. One of the main aims in the course of the development of the Bill was, as I have said repeatedly, to preserve the normal and proper communication and interaction between citizens and their local representatives. I want to ensure that, as far as possible, there is no impact on these exchanges as a result of the enactment of the Bill. Therefore, the private affairs of individuals have been specifically excluded from the registration requirements of the Bill under section 5(4)(a) so as not to capture those normal communications between private citizens, including those regarding their principal private residences.
The old English adage is that one's home is one's castle. It comes with the precept of private affairs, and that is why I do not propose to accept the amendments, as I have indicated. The Deputy rightly said that whether issues to do with a person's private residence would have implications for what we want to deal with in regard to this Bill is a long shot, but the general provision of preserving that degree of personal privacy is something that would be appreciated by the general public.