Registration of Lobbying Bill 2014: Report Stage (Resumed)

Amendment No. 20 not moved.

I move amendment No. 21:

In page 7, to delete lines 20 and 21 and substitute the following:

“(d) communications requesting factual information or providing factual information in response to a request for the information;”.

Amendment agreed to.

Amendments Nos. 22 and 23 are related and may be discussed together.

I move amendment No. 22:

In page 7, to delete lines 26 and 27.

This relates to a discussion we had on Committee Stage. Despite our discussion, I remain to be convinced that lobbying communications as defined in the proposed statute could pose a threat to personal safety or the security of the State and, if they did, that the public interest would be best served by keeping them secret. I do not believe the Minister has given a really persuasive explanation for that.

He has powers within the legislation under sections 5(4) and 5(7) to accept any specific communications with designated public officials with respect to relevant matters, taking account of the public interest. Of course, the security of the State or the personal safety of anyone would be a matter of public interest. I am not convinced this should be in the legislation but I will not press the amendments because I have a sense that it will not get me very far.

In respect of the review after 12 months, I suggest to the Minister that this is another element on which we should keep a watching brief.

I again thank the Deputy for her amendments and her persistence in this regard. Amendment No. 22 proposes to remove the exemption that would protect from disclosure information which would pose a threat to the safety of any person. Amendment No. 23 proposes to remove the exemption that would protect from disclosure information which could pose a threat to the security of the State.

I have reflected on the case the Deputy made on Committee Stage. I remain of the view that sensitive forms of communications relating to the safety of a person or the security of the State should be protected from the requirement to register under this legislation. This is why I have included these specific exemptions from the communications covered in the Bill. This approach is similar to that adopted in FOI legislation which recognises that certain sensitive information that literally pertains to a person's safety or the security and safety of the State should not be made public.

On Committee Stage Deputy McDonald asked for some examples of what might constitute this, which was a fair point. Regarding amendments Nos. 22 and 23 relating to the safety of the person and the security of the State, I looked at a variety of situations, obviously many of them in the justice area and so on. I will just take one relating to the Department of Jobs, Enterprise and Innovation, which formed part of the submissions I received. Companies involved in the export control system have expressed concerns directly to the Department over the safety of their employees where details are made public. In discharging its export control responsibilities the Department applies rigorous security to applications for export licences. This often involves consultation with the Department of Foreign Affairs and Trade on cases where exports are being made to countries where the Department has concerns regarding the risk of human rights infringements or the risk of proliferation of weapons of mass destruction, for example. Making information in many cases public would be very damaging to the international relations and perhaps in some circumstances pose a real threat to the security of individuals who are acting in our interest to ensure, for example, that certain things should not be exported to places where they might be misused or abused. That level of information should be protected. That is just to give one example and there are many more.

Having reviewed the cases made to me by individual Departments, I think there is still a coherent case. It is a procedure that is not unknown and is replicated in many similar statutes in jurisdictions that have the same open democratic view of these matters that we do.

Amendment, by leave, withdrawn.
Amendment No. 23 not moved.

Amendments Nos. 24 to 26, inclusive, are related and may be discussed together.

I move amendment No. 24:

In page 7, to delete line 32.

Deputy McDonald also tabled these amendments. We are dealing with areas that the Minister has listed as exempted communications. Amendments Nos. 24 to 26, inclusive, cover sections 5(4)(j), 5(4)(k) and 5(4)(l), respectively. Essentially, these are exempting from the legislation communications by a designated public official in his or her capacity in his or her work, and communications by a person who is employed by, or holds any office in, a public service body and makes a communication which relates to the functions of the public service body in which he or she is employed. Amendment No 26 deals with communications by a person who is a designated public official under the legislation but not specifically employed in a public service body designated under the legislation, notwithstanding that the person is a public official designated under the legislation which relates to the functions of the body.

The definition here is too broad. It reflects the old thinking in public bodies over the years and in government circles nationally and locally for many decades. The law has changed when it comes to planning. There was and still is the hangover of this in the planning area. It is essentially one law for public bodies and a different law for everybody else. The essence of what is exempted should be based on the substance and not on who is making the actual communication.

I draw a parallel. Many years ago many public bodies were exempt from having to submit planning applications. The OPW could do what it liked and could build in the middle of a main street. They were public bodies and therefore they did not have to go through the normal planning process. Fortunately, people became more enlightened over the years and decided that if someone was doing something, we should look at what they were doing. The owner or the proposer of the development is neither here nor there. The question is whether what is being proposed is a good idea. We need to look at the substance of the proposal rather than whether the proposer is a designated body.

Public bodies have to apply for planning permission in many cases. However, we still have situations in the public arena - the same attitude is reflected here - where even local authorities can grant themselves planning permission under certain sections of the legislation for housing development or different items. They do not go through the normal planning process; they just have to go through a so-called "agreement, Part 8". Different local authorities give it different references whether it is based on the section of Act or the subsection of the Act. The members of a local authority can give planning approval, for example, for a housing development or a sewage treatment plant by a local authority and there is no right of appeal to An Bord Pleanála in some of those. I know there is strategic infrastructure and in the case of some large applications, local authorities have to go to An Bord Pleanála. However, many local authorities can still carry out work that in the normal course of events would have to go through the planning process if it were being carried out by anybody other than a local authority.

That attitude permeates the public service and is one of let us have a law for the public out there, but let us not have this law complicating how we in the public service carry on our lives even though we might want to do the same thing. That is what is reflected here. That is the attitude of saying we are public officials doing our duty. We should be exempt from the legislation. That should certainly not be so in my opinion. If what a public body is doing requires it to be exempt, that is fine, but there should not be a blanket exemption for public bodies.

I have not had time to think about it in too much detail.

A communication from a county manager or director of services in regard to Irish Water is exempt in the Bill, as I read it, because a designated public official - chief executive officer is the new name for county or city managers - who will be captured under the Act might communicate with somebody on matters which relate to the functions of the public service body, that is, the local authority. I hope I am wrong, but my understanding of the amendment is that these type of communications can be excluded.

I refer to local authorities and housing. The Department of the Environment, Community and Local Government might have a lot of funding to allocate for social housing programmes by 2020. Everything now involves a five-year plan, such as tax, homelessness and housing. Nothing will be done in the next two or three years; it will all be done in five years' time. The Government has a housing plan for social housing. A lot of work will be done by voluntary organisations, such as Respond and Clúid, and housing associations. They are not captured under the Bill, but a local authority which is doing identical work, in terms of providing social housing, can be exempt.

A director of housing can talk to the Department of the Environment, Community and Local Government about seeking funding for a local authority social housing project and his or her willingness to work with the Department to secure such funding. As he or she is in a public service body and is an employee communicating about his or her functions, he or she would be exempt from the Bill. Respond, Clúid and other housing associations could have the same conversation, but would not have a specific exemption.

I can see that the Minister does not want the normal functions being caught up, but we have included communications where people are looking for factual information. The Minister tabled an amendment on that yesterday, and stated that people seeking factual information should be exempt because that is not really lobbying. That should be broad enough to cover pubic officials who are working within their capacity to seek information in regard to the functions of a public body.

There can be competition between public bodies and relevant Government Departments regarding the allocation of funding. The communications of people working on behalf of a public body, or an official who is a designated person or at that grade, are exempt under the legislation.

We have been too broad in terms of exemptions. I would like to see the Bill more tightly drafted. I understand it should not interfere with the proper working of the organisation, but we have expanded it too much in terms of exemptions. I would like to see more included rather than exempted from the Bill.

I am in agreement with Deputy Fleming on this matter. I am sure the Minister understands that we appreciate the legislation has to be operable. This has to be a scheme that works.

It has to be practical.

It has to be practical and cannot snarl up the work of public administration. The Minister has made that point and it is legitimate. However, these exemptions are cast, as Deputy Fleming said, very broadly. Given that the Minister has the power to accept communications in the public interest and has brought forward a provision in respect of simple communications to establish matters of fact, interdepartmental or inter-public official lobbying should not be excluded from transparency and scrutiny. The objective of all Stages of this legislative process is to make the Bill operable and, as the Minister said, as practical, effective and comprehensive as possible. Therefore, I have tabled these amendments and others. There are other very sweeping exemptions, and it is a mistake to cast them so broadly in the Bill.

We discussed this on Committee Stage. This is the first time we have had this type of legislation. We talked about it for a very long time. I championed it in opposition. I am anxious, having had very detailed discussions with everybody who was concerned about this, to make sure it works. The key issue is what kind of communication we are talking about. We are talking about lobbying, and people understand what that means. Not every piece of communication that happens between staff in a local authority or Government Department is lobbying. They are doing their job; they are not lobbying. If an assistant secretary tells an assistant principal, "This is a policy issue. Do that." that is not lobbying; rather, it is normal working communication.

We have to be practical, as I have said, about the operation of this. To have the net cast in the way the Deputies opposite are now suggesting, even though I understand the reasoning for it, would defeat the purpose because one would not see the wood for the trees. If everything is reported, registered and so on, real lobbying would be difficult to identify. What is the motivation of this Bill and what has motivated other countries? It is to see who is externally influencing or peddling power. It is not to have all of the normal communication of Government Departments or officials at local or national level monitored, as if there was some sort of external oversight of normal communications in a functioning democracy.

As I said, my view is very simple in regard to lobbying. Much lobbying is legitimate and proper. In fact, I have described it as the lifeblood of our democracy. Every citizen should lobby, in terms of the things which concern him or her, whether it is the rate of taxes, the roads or whatever else. That is a fundamental lubricant of our democracy and should be protected.

The Bill is designed to focus and shine the light of day on who in the public domain is having influence on power brokers. The myriad daily communications within and between public sector organisations which would be captured by these amendments, if I accepted them, would overload and clog up the system, and make it unworkable. This exclusion is a common feature of the best legislation we have examined internationally.

I have been working diligently as a Minister to ensure there is a suite of transparency measures. Some of what the Deputies opposite are talking about would be fully captured by FOI. That is the appropriate vehicle to find out what communication, documentation and reports are generated between or within Government and local authorities, if that is what the Deputies are interested in. It does not fit into the category of lobbying. Once cannot slot into the category of lobbying normal communications. Having thought about this long and hard, and having examined the arguments made, I genuinely do not believe that these amendments should be accepted. It would defeat the purpose of the Bill if I did accept them.

We understand the points the Minister is making. I want to give specific examples of what I am referring to. A local authority which wants to develop a tourism trail can lobby Tourism Ireland for funding, and it is exempt. A private operator which wants to do the same-----

A local authority is a not-for-profit organisation. Any policy made by a local authority is democratically put before the members.

That is a new concept.

It is a democratic-----

I understand what the Minister is saying, but the logic is that what is in the interests of the Government is in the interests of the people.

The point he made is that what is of interest to the people in power and the Government or local government of the day is in the interests of the citizen.

That is not what I said.

It is not necessarily the case, and that is why people change governments. That is why we have a democracy. The two are not always linked. After years of being in office, I can understand people in the Government thinking that as they are acting for the good of the Government, it is also good for the people.

That is not what I said at all.

As another example, an organisation seeking funding and lobbying Tourism Ireland could be doing so based on the exact same proposal as a local authority but it would not be exempt. I could return to public bodies with education and training boards. They may wish to lobby the Department of Education and Skills and education authorities for funding for a series of courses, but people in the private sector providing education resources could lobby for exactly the same course and they would not be exempt, which is not right. CIE can lobby the National Transport Authority left, right and centre, but private sector operators for bus and other routes are not exempt.

That would come under freedom of information legislation.

What is the purpose of the legislation if the Minister is arguing that it comes under freedom of information legislation?

Lobbying has a distinct meaning under the Bill.

We all agree that lobbying needs to be regulated, but will that be the Minister's answer to everything - that we do not need this legislation because everything is captured by the freedom of information legislation?

No. Do not twist my words.

I was giving a bit more credit to the legislation. Most of what we introduce is relevant to freedom of information legislation anyway. If a private company lobbies the National Transport Authority with regard to bus routes, there would be commercial sensitivity involved. Is the Minister aware of that? There is not a chance in hell of that information being released under the freedom of information process, as the commercial viability of routes would be seen as commercially sensitive. The Minister should not use that fig leaf. CIE can do the same but it is exempt from having to register. I have already given the example of the education sector. If I had another five minutes I would have another five examples, but I will leave it at that as I have made my point.

CIE is not a public body and would not be exempt, which means that example would fall. I will return to the principle in any event. We are discussing lobbying, and not every type of communication made within a body is relevant, such as when a principal officer speaks to an assistant principal or the Secretary General of a Department speaks at the weekly management advisory committee meeting. Is it lobbying when he speaks about policy direction? Of course it is not, and that would be captured by the baldness of the amendments before us. There is an inescapable logic to what I am saying.

I will not even get into some of the points made by Deputy Fleming. He oscillates from the opinion that there is no purpose at all to the idea that the legislation should capture everything. The legislation is discrete and takes in international best practice on how to deal with the lobbying issue. If my proposal does not hold water, there is no lobbying legislation on the planet that would hold water, as they are all modelled on the same set of principles that are practical, workable and good.

We must bring people with us in this groundbreaking legislation. It will certainly be expanded in future, but I do not want to stifle it at birth by making it unworkable and impractical. That is why I cannot accept the amendments.

Perhaps the Minister has inadvertently or deliberately misinterpreted what I have said. At no stage in the discussion of this legislation have I made the example of communication between an assistant principal and a principal officer. Every example-----

That would be captured by the baldness of the amendment.

Every example I gave involved one public body or another. They concerned local authorities and the Department of the Environment, Community and Local Government, or education and training boards and the Higher Education Authority or the Department of Education and Skills. All the examples I quoted concerned communication between public bodies and not internal communications.

The amendment is much broader.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 25:

In page 7, to delete lines 33 to 38.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 26:

In page 7, to delete line 39, and in page 8, to delete lines 1 to 7.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 27:

In page 8, to delete lines 8 to 11.

This again relates to an exemption afforded to communications by or on behalf of a body corporate made to a Minister of the Government who holds shares in or has statutory functions in relation to the body corporate, or to designated public officials serving in the Minister's Department in the ordinary course of the business of the body corporate. As we indicated with previous amendments, this exemption relating to lobbying by commercial and non-commercial semi-state companies should not be excluded from transparency processes and scrutiny.

I can give a contemporary example. I listened on the radio a couple of months ago to one of the Minister's Labour Party colleagues from the Seanad reflecting on Bord Gáis and its acquisition of responsibility for Uisce Éireann or Irish Water. He made some fairly astounding remarks in respect of how that happened and accused Bord Gáis of misleading the Government. I do not know if the Minister heard this interview and I assume the Senator subsequently withdrew those remarks. I raise this example because, notwithstanding the commercial mandate of the commercial semi-State bodies - which gives rise to concerns about commercial sensitivities - there is a legitimate need to scrutinise and understand the lobbying that happens between semi-State bodies and the mother ship, whether that is a Department, departmental officials or Ministers. The broad exemption afforded to these bodies in the legislation is a mistake.

The Minister has the power of exemption under section 5, and he has made a provision to allow that the sharing of factual information may not fall within the scope of the Bill. There is a definition of a relevant communication. I am very uneasy about this particular exemption and even at this stage I ask the Minister to reconsider it. The amendment seeks to strike out that provision.

At present, section 5(4)(m) provides an exemption for certain communications between a body and a Minister who holds a share or who has a statutory function with regard to the body. The exemption is intended to cover governance matters made within the ordinary course of business of a commercial semi-State body. Commercial semi-State bodies are of strategic importance, and we have spoken about this in every piece of ethics legislation. The ability of a Minister or a parent Department to engage with such bodies that are owned by the State as shareholder is an essential part of normal governance. That is as any shareholder would with a body that it owns. An appropriate balance is therefore critical between strengthening transparency and avoiding the diminution of effective governance of commercial State companies that are really important to the State and the people.

This is a narrow exemption dealing with governance issues and it is intended that other relevant communications on wider sectoral or regulatory issues would continue to be subject to registration as per the Bill. There is a narrow sphere to ensure that proper governance and oversight can be dealt with by the parent Department or Minister - the shareholder - and the company in a normal business way.

I would like to clarify that because I do not think it is entirely clear in the legislation. It reads to me as far more all-embracing than that. It states: "communications by or on behalf of a body corporate made to a Minister of the Government who holds shares in, or has statutory functions in relation to, the body corporate, or to designated public officials serving in the Minister’s department, in the ordinary course of the business of the body corporate". Is the Minister suggesting that this is the limiting clause?

Is he satisfied that it is sufficiently-----

If, for instance, a commercial semi-State was lobbying to extend its remit, for some commercial contract or something out of the ordinary, can the Minister assure us that would qualify as a lobbying activity under this legislation?

Other regulatory issues covering, for example, the environment, in which a State company is involved, would be captured by this. This is the normal governance relationship between a Minister or a Department and a company whose shareholding resides with the Minister, to do the proper business of governing the company. Lobbying outside that sphere would be captured by this Bill.

Based on that assurance from the Minister, and in the knowledge that we will have a review of this legislation in 12 months' time, I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 28 to 30, inclusive, not moved.

Amendment No. 31, in the name of Deputy McDonald, which arises out of committee proceedings, has already been discussed with amendment No. 19.

I move amendment No. 31:

In page 8, to delete lines 35 to 39.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment put and declared lost.

Amendment No. 32, in the name of Deputy McDonald, arises out of committee proceedings.

I move amendment No. 32:

In page 9, to delete lines 4 and 5.

Of all the amendments I have tabled, this is the one that is most important. I propose to delete the following words: "apart from any matter relating only to the implementation of any such policy, programme, enactment or award or of a technical nature." Any communication up to implementation point can be regarded as lobbying, but thereafter, the legislation does not capture any of the communications. That is very worrying. Implementation is a crucial stage of public policy. As we know, it can be the difference between success and failure and the overall character and impact of any public policy. The implementation stage, however one regards that, is probably the time at which contracts are agreed or signed, resources are allocated and money changes hands. I see absolutely no reason to exempt that phase of deliberation of policy-making and that dynamic from the legislation - in fact, I regard it as quite a dangerous thing to do.

As the Minister knows, I raised this with him on Committee Stage. I said at that time that I regarded it as a very large and dangerous loophole in the law. That remains my position and that is why I have tabled the amendment again at this stage.

We had this discussion on Committee Stage. I will put it in some context. When framing the Bill, we looked at best international practice. A number of options were available to actually define what lobbying is. Different jurisdictions have tried different definitions. Most of us would ask "What is lobbying?" In plain English, it is attempting to influence decision-making. That is the concept that has been used elsewhere in legislation, particularly in the ground-breaking model legislation in Canada. However, that was actually proved to be too narrow a definition because, in practice, proving that a person is trying, or attempting, to influence became an obstacle, so I rejected that. I have cast the definition much more broadly than the initial Canadian model. For the Deputy's information, Canada has amended its federal legislation to change the definition from attempting to influence to any oral or written communication, which is the model we are using here. However, if one is going to use that catch-all phrase of "any written or oral communication", it is so broad a definition as one's starting base that one has to look at ensuring that one captures what is really at issue here. The definition used in our Bill is the broad definition. We need to be explicit in terms of the exemptions we put in.

I understand exactly what the Deputy is talking about but, basically, what we want to do, certainly at this stage of it, is to capture anything that seeks to influence the creation or making of policy during its formation. That is our focus in regard to this.

This provision seeks to find the appropriate balance to ensure that significant communication affecting the formulation of policy is captured and is disclosable so that people understand who is influencing the decision-making at the policy formation phase. This provision seeks to exclude low-level communication relating to implementation or technical issues around implementation, which, I am informed, would be absolutely voluminous. It is a standard approach in other lobbying legislation and according to best practice. Again, it ensures that the base principles of the Bill are broad enough to ensure that people do not run a coach and four through them. That is why I have used the broad definition rather than the narrow one and confined it in a reasonable way and made it practicable - so that we do not lose sight of what we need to focus on due to the sheer volume.

As I said, we have probably done more sounding out with stakeholders, lobbying groups, citizen groupings, etc., on this legislation than on any other legislation I have dealt with. It was indicated during this process that the administrative burden that would be placed on registrants, arising from everything that is done in the implementation phase, would be extraordinary. I accepted that.

I do not say that this is an issue that is closed forever. We may want to broaden it out in the future, but certainly, in order to bring everybody with us and to deal with what this Bill is about, we must focus on who is influencing or seeking to influence, often quite legitimately, properly and appropriately in a democratic system, the formulation of any policy rather than simply every communication about the technical nature of implementation once the policy has been determined. I hope the Deputy will accept my bona fides on that.

I accept the Minister's point in respect of a broad-based definition and moving away from the Canadian definition, which it has stepped back from. However, the Minister has exempted quite a number of different categories of communications, bodies and individuals, so he has very substantially pruned the scope of this. By the way, I accept the Minister's bona fides in so doing and I am not attributing any negative motive to that. It is consistent with the logic he has set out. However, it is an absolute mistake to exempt wholly the implementation phase of public policy.

The Minister should bear in mind that at that phase, as at any other phase of public policy, for the communication to qualify it has to be communication of a certain nature. It is not nuts and bolts conversations on mundane day-to-day matters. This is a big mistake. I am at a loss to understand why the Minister would exempt such a critical part because while the influence and interaction at the level of conceiving policy and shaping it in theoretical or written form is one thing, the real action happens when policy is translated into action, initiatives, resources and money and the where and how of all that. That phase is as open and prone to quite aggressive lobbying by vested interests as any other stage.

I will press the amendment. The Minister may not agree with me today but as he has referred to the 12-month review and keeping an eye on matters at every juncture, this, critically, should be at the forefront of his mind. It is a mistake to exempt it. I am absolutely unconvinced by the Minister’s rationale. It does not stack up.

Section 5, “Meaning of carrying on lobbying activities”, gives a very broad definition. A person is lobbying if that person “makes, or manages or directs the making of, any relevant communications” in the circumstances set out. “Relevant communications” are defined in subsection (3): “In subsection (1) “relevant communications” means communications (whether oral or written and however made), other than excepted communications”. A very broad tapestry would be captured under this Bill. We need to have some whittling down of relevance or we will drown in a sea of irrelevance and lose the focus on capturing who is peddling power and how it is being done.

Amendment put:
The Dáil divided: Tá, 39; Níl, 58.

  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Collins, Joan.
  • Coppinger, Ruth.
  • Cowen, Barry.
  • Crowe, Seán.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Dooley, Timmy.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Flanagan, Terence.
  • Fleming, Sean.
  • Fleming, Tom.
  • Grealish, Noel.
  • Healy, Seamus.
  • Healy-Rae, Michael.
  • Keaveney, Colm.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McLellan, Sandra.
  • Mathews, Peter.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Butler, Ray.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Conaghan, Michael.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Creed, Michael.
  • Daly, Jim.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Feighan, Frank.
  • Fitzpatrick, Peter.
  • Griffin, Brendan.
  • Harrington, Noel.
  • Hayes, Tom.
  • Howlin, Brendan.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Kathleen.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McHugh, Joe.
  • Maloney, Eamonn.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Neville, Dan.
  • Nolan, Derek.
  • Noonan, Michael.
  • Ó Ríordáin, Aodhán.
  • O'Donovan, Patrick.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Penrose, Willie.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, Brendan.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Wall, Jack.
  • Walsh, Brian.
Tellers: Tá, Deputies Caoimhghín Ó Caoláin and Mary Lou McDonald; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.

As amendments Nos. 33 to 37, inclusive, are related, they may be discussed together.

I move amendment No. 33:

In page 9, between lines 13 and 14, to insert the following:

"(f) Secretaries General and Assistant Secretaries General;".

The amendments we are discussing relate to the designation of public officials under this legislation. The Minister has included in section 6, as it stands following Committee Stage, a list of people who will have to register under the regulation of lobbying Act if they are lobbied. The section provides that the following are designated public officials:

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

(b) other members of Dáil Éireann and Seanad Éireann;

(c) members of the European Parliament for constituencies in the State;

(d) members of local authorities;

(e) special advisers [to Ministers] appointed under section 11 of the Public Service Management Act 1997;

(f) public servants of a prescribed description;

(g) any other prescribed office holders or description of persons [that the Minister can choose to designate].

I have proposed a number of amendments that would provide for specific groups of people to be listed in the primary legislation alongside the people on the list I have just read.

I have been specific about the additional people I would like to see included in the primary legislation. Those already listed exclude the permanent government. Elected persons come and go, depending on when elections happen. Legislation that did not include the lobbying of Secretaries General and assistant secretaries general would be fundamentally flawed. The Bill's sole purpose is to capture the lobbying of elected politicians. Alongside appointed special advisers, it covers no one else. The Minister can list others by way of regulation, but he will not do so in the legislation. Everyone agrees that the lobbying of politicians should be captured and regulated, but everyone would be as adamant that not including the most senior public servants in the country would represent a fundamental flaw in the legislation.

I tabled amendment No. 33 for this reason. It includes Secretaries General and assistant secretaries general. Amendment No. 34 would include directors of services in local authorities. Such people can have more influence than any elected local councillor. Amendment No. 35 would include principal officers and assistant principal officers. Amendment No. 36 would include the private secretaries of Ministers and Ministers of State. Amendment No. 37 would include the chief executive officers of local authorities. The Minister has indicated that he will designate public officials on commencement of the Act, but I cannot understand why he will not include these people in the Act itself. While I accept his bona fides about including such officials, I want a coherent reason for not listing them in the Bill. I assume that he will accept my amendments by and large. Subsequent to the previous Stage, the Minister gave a commitment to the Oireachtas committee that he would, on commencement of the Act, designate Secretaries General, assistant secretaries general, CEOs of local authorities and directors of services, as specifically called for in my amendments. By way of correspondence, the Minister's position on these four categories is the same as that in my amendments. I am happy to withdraw the amendments relating to private secretaries, principal officers and assistant principal officers, but perhaps those persons could be included in the second round after 12 months.

I am not satisfied with the legislation as drafted. This is the opportunity for the Oireachtas to include in the legislation Secretaries General and assistant secretaries general. Who are the most important people in a Department? Some Departments can see three Ministers passing through in the lifetime of a single Government. The average period of a Minister in a Department is probably two years. Some can stay for the full five years and some can get second terms, but others might only be in position for a year before being moved. There was a Cabinet reshuffle last July.

The Minister, Deputy Howlin, will be there for a long time. It is a safe seat.

My good constituency colleague, Deputy Charles Flanagan, was made Minister for Children and Youth Affairs. He does not know whether he did a good job or a bad job, as he was moved to the Department of Foreign Affairs and Trade six weeks later, yet we include-----

It sounds like a promotion.

I say that tongue in cheek. It was to his credit that he got the promotion. However, he was only in the Department of Children and Youth Affairs for six weeks, but he is captured in this legislation while that Department's Secretary General is not. I saw an e-mail yesterday outlining that a new Secretary General had been approved by the Government. That person could be in place for the next seven years. There is no logic in excluding Secretaries General. Is this just another instance of passing legislation to regulate politicians without also capturing the permanent government, including county managers and directors of services who can be in place for many years? How anyone can draft legislation that requires people to register if they lobby local councillors but not if they only lobby council managers or directors of services is wrong. The same applies at Government level, in that one must register when lobbying a Minister, Minister of State - some Ministers are only in position for a matter of weeks or months - or Deputy, but not when lobbying a permanent Secretary General or assistant secretary general. This is not good enough. It feeds into the belief that, for some reason, anyone who deals with politicians must be regulated.

The Minister has only listed politicians as designated public officials under section 6. Regardless of whether he believes it, public cynicism about the democratic process and politicians is fed when he believes that he must draft legislation that only includes Ministers, Ministers of State, Deputies, Senators, MEPs, local authority members and ministerial special advisers. Ministers and the like are only the elected heads for a short time.

I provided an example yesterday. If someone wanted to lobby on the sale of shares in AIB, he or she would put a case to Goldman Sachs. Yesterday, the Minister confirmed that he specifically excluded consultants. One does not approach the Minister for Finance to get a point of view included in a report by Goldman Sachs. Rather, one probably speaks to people at Goldman Sachs or the assistant secretary general who deals with Goldman Sachs and will present a summary of the report to the Minister, yet the Minister, Deputy Howlin, has excluded both categories.

We are nearing 12 noon. We have not been able to complete the Bill, so we will need to spend a bit more time on it this afternoon. I am sure-----

I would not mind giving a quick response.

I will allow the Minister to respond, but I will revert later.

The Deputy is being more than a tad mischievous in how he has presented this. He knows full well that I intend to include public servants in the legislation. I explained in some detail on Committee Stage that I would do this in a different format. I am prescriptive as regards Ministers, Deputies and members of local authorities because they are a discrete, finite group.

In terms of which public officials should be captured, the Deputy even agreed that there would be more than one wave as we progress. Rather than including certain officials in primary law and, by definition, others that should not, section 6 refers to "public servants of a prescribed description". As I have already told the Deputy, I intend prescribing from the outset Secretaries General, assistant secretaries general and CEOs of local authorities. They will be captured from the beginning. Within 12 months, it is my intention to extend this provision to principal officers, but there might be other categories or designations that we will have to consider. My approach is simply to have an enabling power in respect of the prescribed categories. I am open to hearing the case for capturing any category.

However, if we state in primary law that these are the only categories, we are saying that nobody else should be captured under these provisions other than those particular categories. That is a fundamental mistake because there will be categories of public servants that should be subject to this legislation but which are not on the list put forward by the Deputy opposite.

Debate adjourned.