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Dáil Éireann díospóireacht -
Wednesday, 1 Mar 2023

Vol. 1034 No. 4

Regulation of Lobbying (Amendment) Bill 2022: Report Stage (Resumed) and Final Stage

Debate resumed on amendment No. 2:
In page 6, between lines 11 and 12, to insert the following:
“(b) in subsection (4), the insertion of the following paragraph after paragraph (a):
“(aa) where any of the communications concerned were made on behalf of a client, details of payments received or fees charged,”,”.
- (Deputy Róisín Shortall).

I thank the Deputy for raising the issue. Including financial disclosure requirements in returns to the register was considered when the original Act was developed. It was also raised as part of the first and second statutory reviews of the Act. As outlined in the report relating to the first review, the options for requiring a financial disclosure were examined at the policy development stage. It was considered that including any financial disclosures on the register would require striking an appropriate balance between required transparency, ensuring the confidentiality of commercially sensitive information and safeguarding the right to privacy. It emerged that there would be significant administrative issues in establishing consistent and comparable financial data for inclusion in the register, and it was determined there should not be a requirement to include such data. A balance has to be struck between the requirement for more information to increase transparency and the level of administrative burden the provision and evaluation of such information may place on the commission. I should put on record that this is not a change the Standards in Public Office Commission, SIPO, has been seeking.

In addition, it is important to remember that the degree of spending on lobbying activities is not necessarily an accurate indicator of the impact of any lobbying activity. For example, a lobbying campaign undertaken by a PR company costing, say, €100,000 may not have as much impact on the issue in question as a phone call to the relevant Minister, which would have no financial cost, might have. I would consider that it is more important for correct and up-to-date information regarding lobbying events in each relevant period to be contained on the register. The commission has outlined that it liaises with those on the register in instances where a return may not meet the required standard, and this work is done on a continuous basis. I will not, therefore, accept the Deputy's amendment.

I might conclude with a quick word about the other issue the Deputy raised. She has raised it previously in the House. I acknowledge that the relevant amendment has been ruled out of order. It relates to the issue of former Members of this House engaging in lobbying activity here. I have been clear in my view that that should not take place, but I do not believe it is our position as a Legislature to do that through an Act of the Oireachtas. Rather, I think it is a matter for the Houses of the Oireachtas Commission. If it were done through legislation, that would raise many questions such as who would police it and whether somebody having been registered as a lobbyist would mean he or she could not in any circumstances enter the House despite being a former Member, or whether it would be only that such a person would not be allowed to enter if he or she was coming in to conduct an act of lobbying. It should also be borne in mind that irrespective of where an act of lobbying takes place, it is reportable and should be recorded on the lobbying register. That is a statutory requirement and it is important to make that point.

There are many lobbyists around Leinster House, although very few of them are former Members. There seems to be easy access, which is appropriate in the vast majority of cases, whereby groups and individuals are allowed to come in and make their cases in respect of different issues. It is a matter for the Oireachtas, as a body, to adjudicate on what is or is not appropriate because it would fall on the Oireachtas to put in place the mechanisms to police and enforce any such rules that would have to be brought about. I reiterate my view that it is not appropriate that lobbying would be conducted by former Members in the precincts of Leinster House. I do not agree with that being done.

I assure Members that this will be a subject of discussion at the next meeting of the Houses of the Oireachtas Commission, and I take the point the Minister makes.

I welcome the Ceann Comhairle's confirmation about that. My preference would have been to do it through legislation but I am pleased to hear the Minister's views on this, about which he has been very clear, and the Ceann Comhairle's intention to address it at a meeting of the commission. Ex-Members are quite different from other lobbyists. We need to tighten up on lobbyists generally in regard to access to the Houses, with better recording requirements and so on, but that ex-Members have free access and free rein around the place and throughout the campus is certainly a matter of concern.

In respect of amendment No. 2, if there is a will to require the declaration of receipt of fees or payments, and I think there is a strong case to be made for it, that could be done in a way that would reduce the administrative burden. It could be that exact figures or means of checking would not be needed but rather there could be ranges such that there would be some indication of the level of remuneration a person was getting for the work he or she was doing.

That can range from a small amount to a very large amount but the ranges could be split up within that.

Another potential reason SIPO did not seek it is because it is as stretched for resources as it is. We have heard it call for additional resources on umpteen occasions. So I do not think that should be a reason for not doing what is right around full disclosure. It is regrettable that the Minister has not taken this on board.

My amendment No. 5 was ruled out of order on the grounds that it did not arise on Committee Stage. The indication is that this did arise and therefore I wonder why I have been ruled out of order.

Amendment put and declared lost.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 10, in line 23, after “(c).” to insert the following:

“(14) That within three years of the passing of this Act, the Minister shall produce a report which evaluates the impact of administrative sanctions and the Commission’s capacity to impose this regime.”.”.

This amendment seeks to assure ourselves that this section will be meaningful. I raised it on Committee Stage. The amendment to section 22 makes breaches of the cooling off provision and the anti-avoidance clause relevant contraventions. It will certainly enhance the effectiveness of the regime; I do not think there is any doubt about that and I recognise that. However, rather than treating these relevant contraventions in the same way as those which are already in place, the Bill would create a new regime of administrative sanctions.

The idea of administrative sanctions does raise some eyebrows. I am particularly concerned about the designation of breaches of the cooling-off provisions as civil offences. I wonder why that is the case. It hugely weakens this provision. During pre-legislative scrutiny, both SIPO and Transparency International Ireland expressed doubts about SIPO's ability to impose these sanctions. As the Bill digest outlined, a regulator needs both legal power and capacity to enforce provisions. SIPO currently does not have the resources to carry out this function, especially when the Bill precludes any member of staff other than commissioners from imposing financial sanctions. I did raise that particular part on Second Stage on the limited resources and the fact that it has to be a commissioner who pursues the action. It is for all those reasons.

We all want to get this right. We all want a tighter regime and to address the very lose current situation covering lobbyists for lots of different reasons. This legislation has been in the pipeline for a very long time and we have waited quite a long time for it, so it is important that we make it as strong and as right as we possibly can. However, there are serious doubts about this provision. For that reason, I propose that within three years of the passing of the Act the Minister shall produce a report which evaluates the impact of the administrative sanctions and the commission's capacity to impose this regime.

The Minister is providing for a new regime which sounds good but it does not seem to be as strong as it needs to be. SIPO has said that very clearly, as has Transparency International Ireland. There are concerns about that aspect of it. There is also the concern which I already raised about the commissioner having the capacity to impose the regime. There are big doubts about the efficacy of this provision. It is really important that it actually works. There are weaknesses inherent in what the Minister proposes to do. He is going to go ahead with it. The least we can expect if we are serious about putting in place a tighter regime is to review the operation of this section in three years. I say three years because hopefully this will not occur on a very regular basis - they will be isolated incidents - but it is critically important that when those situations arise we have legislation that is fit for purpose and is effective in deterring the kind of behaviour that we want to deter.

I think it is a reasonable approach where after three years we would actually see how this is operating, especially given the concerns that have been expressed about it. I would ask the Minister in a reasonable way to be reasonable in his response and to consider accepting the amendment.

I welcome this amendment. The Minister and Deputy Shortall will be aware of my own Bill and the amendments I submitted on Committee Stage, which were not accepted, which proposed to introduce criminal sanctions for criminal infringements. As I argued then, I do not believe administrative sanctions would be a strong enough deterrent. I also proposed shortening the review period of the legislation because as I pointed out then, lobbying is a fast-paced industry and technology develops quickly. Communication can be fast and often anonymous. We thrashed all that out on Committee Stage. I feel it is important to mention it here again. A report produced after three years on the impact of the sanctions and the commission's capacity to implement these should reveal whether they are working, so I support the amendment.

Deputy Shortall's amendment proposes to introduce an additional new review to evaluate the impact of administrative sanctions and the commission's capacity to impose this regime three years after the system is operable. The Regulation of Lobbying Act 2015 already provides for a regular and comprehensive review regime. I do not consider that an additional review system is required.

Section 2 currently obliges the Minister to conduct a review of the operation of the legislation every three years and make a report of the findings of each review along with the conclusions drawn from same to the Houses of the Oireachtas. There have been three reviews of the 2015 Act since it was enacted.

Section 2 of this Bill amends section 2 of the Act to allow for the period between these statutory reviews of the Act to be extended from three to five years. Following my Department's recent in-depth review of the 2015 Act, I have decided that the review period should optimally be five years for the following reasons. The legislative provision must supplement other provisions for scrutinising the impact of legislation. The amending legislation, like all legislation, will be subject to post-legislative scrutiny one year after enactment. The experience of the statutory reviews of the 2015 Act has been that conducting a review every three years does not allow enough time to see the impact of changes to the legislation and the Standards in Public Office Commission has stated that it would not object to an increase in the intervals at which such reviews take place, provided that such intervals remain reasonable. Furthermore, my officials keep in close contact with SIPO on the operation of the legislation in addition to the formal statutory review process. There would be nothing to prevent my Department conducting a review within an earlier timeframe if the situation warranted. I do not therefore propose to accept the amendment.

I would also make the point that in my experience of running two Departments, and two and a half years in the Department of Public Expenditure and Reform, reviews take a lot of time and a lot of resources. We have had major reviews on the Ethics in Public Office Act and on freedom of information legislation and a review of the lobbying Act itself. It can take anywhere between one and two years to do a comprehensive review. One ends up using a huge amount of departmental resources doing rolling reviews of different pieces of legislation and I just do not think that it is the best use of resources. One can have a debate about how frequent one thinks is the appropriate timeframe for a review but that is my view based on my experience of running Departments.

I want to touch on another point Deputy Shortall made on why we have chosen civil and administrative sanctions ahead of criminal sanctions.

Based on the Department's analysis, the legal advice received and the consideration of good practice internationally, the policy recommendation that I accepted, a policy recommendation from the Department, was that criminal sanctions represented a disproportionate policy response. In line with the advice of the Office of the Attorney General, administrative and civil sanctions were explored and developed. The civil and administrative sanctions regime is considered to be an effective and proportionate policy response to what appears to be a relatively low risk of breaching the post-term employment restrictions set out in section 22, notwithstanding that where breaches occur, however infrequent, they can have a disproportionate impact on undermining public trust. I acknowledge that. Furthermore, these sanctions will be in the public domain when applied as they will be confirmed by the Circuit Court. The sanctions are not small. They include a penalty of €25,000 and not being permitted to engage in lobbying for up to two years. More important is the reputational impact on anyone found to be in breach of the section and the subject of an administrative sanction. It will have an impact on an individual's employability, adding further weight to the section. I assure the House that there is ongoing engagement between officials in the Department and SIPO on the operation of the administrative sanctions regime. SIPO will draw up the relevant procedures and, under the legislation, it is required to publish them. Work is well under way to ensure that once this Bill is enacted, it can be put into effect.

This has to be seen in the context of the attitude of successive Governments to SIPO and its seeking of more powers and resources over the past 20 years, in addition to the ignoring of its appeals. Particularly in the ethics area, SIPO's requests for additional powers and resources are completely ignored by the Government year after year. On ethics legislation, there was a draft Bill in 2015 that ran into the sand. We are still waiting for some serious action on ethics. The track record on this is not good. That has to be accepted. SIPO is not in a position at this stage to insist on anything because its pleas have been ignored for such a long time.

Those of us who have serious concerns about the likely efficacy of administrative or civil sanctions and who have been calling for criminal sanctions to be an option for SIPO have a right to be reassured. I hope we will be reassured that administrative sanctions work but we have serious doubts about it, just as we have serious doubts about the capacity of SIPO and the requirement for a commissioner to take the actions in question.

There is no point in doing this by half measures. We have seen half measures in the ethics area for far too long in this country. If we are going to do it, let us do it properly. When doing it properly in the context of serious doubts, the onus is on the Minister to show us that what he wants – the weaker regime he is insisting on – actually works. He should prove it to us by producing a review in three years' time. That does not need to be onerous. I hope the number of incidents will be small.

I assure the House that SIPO will be given the resources it requires to operate this regime. This is a very important reform. This legislation has been introduced by me because there was a gap in enforcement provisions relating to section 22. We are now dealing with that. The recommendation from the Department was to opt for civil and administrative sanctions, for a variety of reasons. That is what we are giving effect to in this legislation. The officials are working very well with those in SIPO to make sure they can operate this effectively. I am satisfied they can.

It will be very public if somebody is in breach of the section 22 post-term employment restrictions and the subject of sanctions. If one has to go before the Circuit Court, it is a matter of public record. The significant financial penalty and prohibition from lobbying for up to two years comprise a very serious matter for any individual in these circumstances. This legislation will help to prevent it from happening.

To put the figure in context, the Minister used an example on the question of fees and payments and said somebody could be earning €100,000. If the payment is €100,000 to a PR company and there is a penalty of €25,000, that puts it into perspective. We have seen in the past that although people were not supposed to be engaging in lobbying, the cooling-off period was completely ignored.

Let us not do things by half measure; let us do this properly. It is not particularly onerous for the Department to carry out a review of a small number of incidents over a three-year period. Whatever resources are required to do that are certainly worth it if it is about cleaning up the act of lobbying.

Amendment put:
The Dáil divided: Tá, 51; Níl, 74; Staon, 0.

  • Andrews, Chris.
  • Bacik, Ivana.
  • Berry, Cathal.
  • Browne, Martin.
  • Buckley, Pat.
  • Cairns, Holly.
  • Canney, Seán.
  • Clarke, Sorca.
  • Collins, Joan.
  • Connolly, Catherine.
  • Conway-Walsh, Rose.
  • Cronin, Réada.
  • Cullinane, David.
  • Daly, Pa.
  • Doherty, Pearse.
  • Donnelly, Paul.
  • Ellis, Dessie.
  • Farrell, Mairéad.
  • Fitzmaurice, Michael.
  • Fitzpatrick, Peter.
  • Gannon, Gary.
  • Gould, Thomas.
  • Guirke, Johnny.
  • Howlin, Brendan.
  • Kenny, Gino.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Mac Lochlainn, Pádraig.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Verona.
  • Nash, Ged.
  • Naughten, Denis.
  • O'Callaghan, Cian.
  • O'Reilly, Louise.
  • O'Rourke, Darren.
  • Ó Broin, Eoin.
  • Ó Murchú, Ruairí.
  • Ó Ríordáin, Aodhán.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Patricia.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Tully, Pauline.
  • Ward, Mark.
  • Whitmore, Jennifer.

Níl

  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Colm.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Collins, Michael.
  • Collins, Niall.
  • Costello, Patrick.
  • Creed, Michael.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Stephen.
  • Donohoe, Paschal.
  • Duffy, Francis Noel.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frankie.
  • Flaherty, Joe.
  • Fleming, Sean.
  • Griffin, Brendan.
  • Harris, Simon.
  • Haughey, Seán.
  • Healy-Rae, Danny.
  • Heydon, Martin.
  • Higgins, Emer.
  • Hourigan, Neasa.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Leddin, Brian.
  • Lowry, Michael.
  • MacSharry, Marc.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McConalogue, Charlie.
  • McGrath, Michael.
  • McHugh, Joe.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murnane O'Connor, Jennifer.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Brien, Joe.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Dea, Willie.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Phelan, John Paul.
  • Rabbitte, Anne.
  • Ring, Michael.
  • Ryan, Eamon.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Smyth, Ossian.
  • Stanton, David.
  • Troy, Robert.

Staon

Tellers: Tá, Deputies Róisín Shortall and Cian O'Callaghan; Níl, Deputies Hildegarde Naughton and Cormac Devlin.
Amendment declared lost.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 16, line 23, after “Expenditure” to insert “, National Development Plan Delivery”.

This is a technical amendment, consequent to the recent name change to the Department of Public Expenditure, National Development Plan Delivery, and Reform.

Amendment agreed to.
Bill, as amended, received for final consideration and passed.
Barr
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