I welcome Members, viewers and our witnesses. The purpose of today's meeting is to begin our pre-legislative scrutiny of the regulation of lobbying (amendment) Bill 2022. We are joined by representatives of Transparency International Ireland and the Standards in Public Office Commission, SIPO. I welcome Mr. John Devitt, Transparency International Ireland, and Ms Elaine Cassidy, director general of the Office of the Ombudsman, representing SIPO; Ms Aoife Drudy, head of legal, Office of the Ombudsman, representing SIPO; and Mr. Brian McKevitt, assistant principal, ethics and electoral compliance unit, SIPO. Either Mr. Devitt or Ms Cassidy will make some brief opening remarks before a questions-and-answers session.
General Scheme of the Regulation of Lobbying (Amendment) Bill 2022: Discussion
Ms Elaine Cassidy
I thank members of the committee for the invitation to appear before them today. I am the director general of the Office of the Ombudsman. For those of you who might be less familiar with the structure of our office, the Standards in Public Office Commission is one of six independent statutory offices under the structure of the Office of the Ombudsman. These offices are all funded through a single Vote and accountable to Dáil Éireann through a single Accounting Officer, which is me. The commission has its own staff complement, with finance, HR, legal, communications and IT functions shared with the other statutory offices, and that supports the commission's independence from Government.
(Interruptions).
There is a problem with the communications. We will suspend briefly to try to sort it out.
Sitting suspended at 1.40 p.m. and resumed at 1.43 p.m.
I am sorry for the interruption. We do our best, but modern technology does not always oblige.
Ms Elaine Cassidy
The Standards in Public Office Commission was established in 2001 and it is independent and non-partisan. It is tasked with the oversight of legislation that underpins the State’s ethics framework-----
(Interruptions).
I apologise. The communications problem has persisted.
Sitting suspended at 1.43 p.m. and resumed at 1.44 p.m.
Ms Elaine Cassidy
SIPO is tasked with the oversight of the legislation that underpins the State's ethics framework, specifically in the areas of ethics in public office, political financing and lobbying regulation. This committee is, of course, well aware of the provisions of the Regulation of Lobbying Act and SIPO's recommendations for reform of the Act because it recently completed its scrutiny of the Regulation of Lobbying (Amendment) Bill 2020. I have no doubt that scrutiny will be very helpful to the committee when it is examining the provisions of this 2022 amendment Bill.
The most commonly encountered provisions of the Regulation of Lobbying Act are those regulating people and bodies that wish to carry out lobbying activities. These provisions are not aimed at prevented lobbying but at ensuring it is transparent. To this end, those who carry out lobbying activities or intend to do so are required to register online with the commission, which maintains the register of lobbying at lobbying.ie. Once registered, there is a requirement to submit online returns three times per year. The vast majority of the commission’s communication with registered persons operates through this website. The portal was developed closely with the Department of Public Expenditure and Reform while the Regulation of Lobbying Act was being drafted, and it was intended as a best-in-class example of using digital innovation to provide a more effective service to the public. This model works very well in practice. A 2021 survey of users showed very high levels of satisfaction with it.
In light of the commission’s digital model, compliance with the obligations to register and make returns under the Act is not an onerous task. This is reflected in the high number of registrants. There were more than 2,200 registered lobbyists at the end of last year, and we received a very high number of returns as well – in excess of 11,500 last year.
To deal with non-compliance, the Regulation of Lobbying Act provides for six relevant contraventions, which attract powers of investigation for the commission and are criminal offences. These include failure to register or failure to make a return in time or not at all, as well as compliance with the commission’s regulatory powers. Fixed payment notices of €200 are available to the commission in lieu of prosecution in relation to all criminal offences under the Act. In practice, by far the most common contravention is a submission of a late return. The vast majority of these contraventions are dealt with effectively by fixed payment noticed, issued and paid through the person’s online account. However, in relative terms, this contravention is not common. To give the committee a sense of how well the compliance is working, in respect of those 11,500 returns last year that I mentioned, fewer than 400 fixed payment notices were issued. This is a very low rate of non-compliance.
The Regulation of Lobbying Act also provides for post-employment restrictions for certain designated public officials, DPOs, once they leave office. These provisions prevent Ministers, advisers and senior civil servants from lobbying or being employed to lobby by their former public body or colleagues in the year after their departure, unless they have the consent of the commission. Since 2015, the commission has received 24 such applications. However, contravention of these restrictions does not attract any investigatory powers for the commission and it is not a criminal offence, unlike the other obligations in the Act.
The commission welcomes the publication of the general scheme, which implements many of the reforms we recommended. The commission also welcomes the collaborative and constructive way in which Department of Public Expenditure and Reform officials have continued to work with us in the commission’s secretariat on the legislation. We share the same goal of achieving a robust and effective lobbying regime.
On the provisions on lobbying registrations, the provisions of the general scheme make welcome changes that will improve both transparency and the practical operation of the regime. The general scheme amends the definition of lobbying in four ways and follows the recommendations of the commission. Including the management and direction of communications on development or zoning of land, as well as the making of communications directly, allows organisations as well as individuals to be registered. The extension of the definition to include business representative bodies and coalitions of business interests that do not have employees will close a loophole identified by the commission. On lobbying by employers and advocacy groups, removing the requirement that the officeholder communicating be paid also closes a loophole identified by the commission. Removing communications by a political party to its members creates an exception to the need for transparency, which the commission believes is justified but needs to be clearer in the legislation.
The general scheme also creates an anti-avoidance contravention, enabling the commission to investigate and prosecute action that is intended to circumvent obligations under the Act, for example, destroying records or temporarily laying off employees simply to fall below the threshold while the lobbying activity is happening.
The general scheme also makes technical changes in relation to people who have temporarily ceased lobbying, providing a pragmatic mechanism to deactivate and reactivate the registration. It ensures that the address on the register properly reflects where the lobbying is carried out.
On the post-employment restrictions under the Act, the general scheme also implements some of the commission’s recommendations. Contravening section 22 will become a relevant contravention. This means that the powers of investigations apply, the process for seeking the consent of the commission will be specified in greater detail and there will be obligations on public service bodies to notify their DPOs of their duties and notify the commission if those officials leave their posts. The commission welcomes these provisions.
However, unlike the other obligations set out in the Lobbying Act, contravening section 22 is not proposed to be a criminal offence under the general scheme. Instead, it would be subject to a new civil and administrative sanctions regime to be administered by the commission, with sanctions to include a monetary penalty of up to €25,000. The commission has carefully considered the Government's proposal. The commission recognises that civil and administrative sanctions are becoming a feature of regulation and acknowledges the many policy advantages with this approach. However, with regard to contraventions of the Lobbying Act, the proposed civil and administrative sanctions regime would give rise to significant operational challenges for the commission and would impose unnecessary burdens on the four commissioners who also hold other demanding public service positions. The commission's view is that it would be more appropriate to maintain a single system of criminal sanctions for all contraventions under the Lobbying Act, with fixed payment notices available as appropriate. As I mentioned earlier, the fixed payment notice system operates very effectively in practice in respect of the other contraventions of the Act. Accordingly, the commission recommends that this proposal is reconsidered and that contravention of section 22(1) should be a criminal offence in line with the treatment of all the other offences under the Lobbying Act.
As the committee will be aware from its scrutiny of the 2020 Bill, not all of the commission's other recommendations are addressed in the general scheme. The commission is disappointed when its recommendations are not taken on board, but we welcome the general scheme. We will continue to work with the Department to ensure that the lobbying regulation is as robust as possible. The commission is pleased to assist the committee and thanks it for its interest in our work. I and my colleagues, Ms Drudy and Mr. McKevitt, are available to answer the members' questions.
Mr. John Devitt
I thank the committee for inviting me to share my observations on the general scheme of the Bill on behalf of Transparency International, TI, Ireland. I introduced the committee to our work last October when discussing the Private Members' Bill on the same topic and explained that TI Ireland has dedicated some time to this issue having called for a register of lobbyists in 2009 and undertaken research and published guidance on ethical lobbying in 2015. We noted some of the progress made since we began work on this issue and noted that the 2015 Act and the regulator have raised public expectations of both lobbyists and policymakers. I speculated that the term "lobbyist" carries a degree more respectability than was the case before the Act was passed. Nonetheless, opportunities to reform the Act have been missed since the first review of the Act was conducted in 2017, and a small number of cases appear to have undermined the reputation of the lobbying profession and undermined public trust in politics more widely. We, therefore, welcome the Government’s proposal to amend the Act and the publication of the general scheme.
When I last presented to the committee, I explained what we see as the primary goals of lobbying regulation. The first is to prevent conflicts of interest that could create opportunities for corruption, such as trade in influence. The second is to improve the quality of public policy by allowing the public and policymakers full sight of the information used to influence that policy and to determine for themselves whether the policy is in the public interest. It is with these two goals in mind that I share some observations on the general scheme and make or reiterate our recommendations from last year.
First, like colleagues from the commission, we welcome a number of proposed reforms contained in the general scheme. These include: the creation of an offence to take any action designed to avoid one’s obligations in connection with registering as a lobbyist and making returns; the elimination of the loophole which exempts a person who is marked on the register as having "ceased lobbying" from making returns while remaining on the register; and the inclusion of business representative bodies or coalitions of business interests as well as non-remunerated office holders in advocacy or interest groups in the definition of persons carrying out lobbying. We also welcome the proposed amendment to section 22, which would make a breach of the cooling-off period or lobbying during that period without the consent of the Standards in Public Office Commission, SIPO, a "relevant contravention" and allow the commission to carry out an investigation.
I am happy to discuss a number of areas for improvement or additional provisions in pursuit of the aims of the general scheme. However, I should underscore the point made at my previous appearance before the committee that the Act does little to meet its first objective of preventing corruption unless there is a corresponding requirement to disclose not just the source but the amounts of funding received or fees charged by lobbyists to the lobbying regulator, as well as details of any gifts, hospitality or travel provided to the targets of lobbying. This, as we noted previously, would allow enforcement agencies, including the commission and An Garda Síochána, to evaluate information that could assist with any future investigation into allegations of breaches of the Act or attempts to trade in influence, an offence created with the passage of the Criminal Justice (Corruption Offences) Act 2018. Without a disclosure requirement it is difficult to know who has paid what to an intermediary or whether the person has done so lawfully, and it is equally difficult to determine whether anyone has sought to illegally influence public policy. Such a requirement has been instrumental in detecting corruption or trade in influence in other jurisdictions, most notably in the United States.
The second purpose could be fulfilled without necessitating an amendment to the Act. Instead, the online register could allow for much easier download and third-party analysis of data stored on the register. It could also allow for lobbyists to voluntarily upload information or to provide live external links to those documents as well as legislation moving through the Oireachtas or to links to relevant information held by public bodies, such as rezoning decisions, on the lobbying.ie website. This could also provide for a comprehensive and accessible legislative footprint that simultaneously makes the most of existing digital platforms and helps make the legislative process more open and accountable.
Regretfully, we note that there are no proposals contained in the general scheme that would give effect to either recommendation. Nevertheless, we hope that the Oireachtas would consider these recommendations as part of any review of the Bill when it comes before it in due course.
In addition to these two priorities, we are happy to share recommendations that would strengthen the proposals contained in the general scheme. These include extending the cooling-off period to two years, as was provided for in the Private Members' Bill that was discussed by the committee last October, but with provision for shorter or longer periods depending on the DPO's position and the nature and-or interplay of the previous and new roles. Second, we recommend the categorisation of breaches of cooling-off periods and other post-term employment regulations as offences, as is the case with other contraventions of the Lobbying Act. The anti-avoidance clause provided for by head 13 should also be made an offence. Finally, for now we call for an outright ban on all Oireachtas Members or local authorities from acting as lobbyists or receiving any income for the purpose of influencing public policy other than that provided for by virtue of the elected office they hold.
TI Ireland will share additional observations and recommendations as part of its submission on the general scheme and the Bill, and I am happy to discuss these or any other provisions today. I thank the committee for its time.
Ba mhaith liom buíochas a ghabháil leis na finnéithe as ucht teacht os comhair an coiste. I thank our guests for attending this meeting to make their presentations and answer questions. Obviously, it takes a large portion of time out of their day and it is very helpful to us that they have made their time available.
My first question relates to section 22. I am looking at No. 17 in the recommendations from 2016, and I listened to the opening statement with interest. I am aware that the former head of lobbying and ethics in SIPO, Ms Sherry Perreault, said on her resignation last March that the secretariat supporting SIPO needed greater resources to tackle the workload of ex officio members of the commission. I am also aware that the Hamilton group reviewed the anti-corruption framework in 2019 and 2020 and it also called for a resource review of the commission and for the ring-fencing of its budget. This was because it believed the current staff complement is insufficient to effectively support SIPO's statutory mandate.
One of my concerns about the Bill, and the witnesses have mentioned it, is its use of administrative and civil sanctions for post-employment contraventions of the lobbying regime. In her opening statement Ms Cassidy referred to imposing unnecessary burdens on the four commissioners who also hold other demanding public service positions. Is it fair to say that if this provision is included in the Bill it would further curtail SIPO's ability to deal with complaints under the Regulation of Lobbying Act in a timely fashion and perhaps go as far as further hindering its work in this area?
Ms Elaine Cassidy
With regard to resources, SIPO has large mandate and much to do. To date this work has been achieved very successfully. The Deputy is right when she says there has been a call for a review. I am pleased to say the commission has launched a review. We have a third party in to do a capacity review. It is a very timely opportunity to do so because the new mandate is coming our way. I am very confident it will be a useful exercise and the Department of Public Expenditure and Reform is aware of it. I hope the Department will be supportive if the review calls for more resources.
With regard to how the new regime would affect our existing work, the most likely issue would be that it would be extremely difficult to operate. Even giving us more money would not necessarily resolve the matter. The fact is that we have a system that works. The rest of the sanctions are criminal sanctions. We have a method to progress these situations. Introducing a completely new system for something that is likely to only occur at most once a year is unworkable. This is not necessarily about resources. It is more about the operational effectiveness of it. This is what our concern is.
That is very interesting. I thank Ms Cassidy. I ask Mr. Devitt to comment on this. What are his views and concerns about section 22?
Mr. John Devitt
I do not have sight of the inner workings of the commission.
Of course.
Mr. John Devitt
I cannot comment on what operational impact measures such as this would have. We support the commission's call for, as much as anything, consistency in the application of penalties. It would make little sense to create a separate administrative sanction system for breaches of revolving-door provisions in the Act and have a separate system for late fees, incomplete registration or returns to the commission. If the commission is satisfied that it has the capacity to deliver the current sanction regime I see no reason this would not be extended to breaches of revolving-door provisions. Furthermore, there is no reason for former officeholders, such as Members of the Oireachtas or local authority members, to be treated any differently from lobbyists.
I want to make a point that is perhaps tangential. Lobbying regulation cannot be seen in isolation. It is inseparable from the need to regulate ethics in public office. The inordinate delays in passing reforms to the Ethics in Public Office Act will leave gaps or undermine our ability to uphold standards in public office across the board. We need to look at the passage of this Bill and reform of the legislation as part of a suite of reforms that will enable the Standards in Public Office Commission, the public sector standards commission, or whatever form the body takes after the ethics legislation is reformed, to do its job adequately.
We have noted previously that revolving-door regulations should not be just applied to former officeholders moving into the lobbying profession; they should also apply to those moving into the corporate sector and the private sector. I am aware this legislation can only do so much. It is for this reason we need to effect the reforms set out in the Public Sector Standards Bill 2015 and give the commission the capacity to do its job effectively. The current set-up with six commissioners working full-time, who barely have time to meet and reach a quorum, is inoperable. It is not acceptable or satisfactory. This as much as anything will stand in the way of us upholding standards in public office. The legislation should not be seen in isolation. We have called for the restoration of the Public Sector Standards Bill to the Order Paper without delay.
I thank Mr. Davitt. That is quite interesting. I have to say I agree with much of what he has said. What the witnesses said and what SIPO said in 2016 on the issue of switching sides is important. The perception of a revolving door can serve to undermine public trust in the impartiality of public bodies. It is quite an interesting concept. The whole concept of a revolving door does undermine public confidence in public life. This is a very serious matter in itself as well as with regard to any other issue there might be. There is an issue with access, and the perception of access, in this State. In my clinics I see how people from different backgrounds and different walks of life are treated differently. It is definitely something I am very interested in. Mr. Devitt spoke about broader ethics. I am reading a book by Elaine Byrne on corruption in the past. It is quite interesting. It makes me think about how important legislation such as this really is and how essential it is that we make sure it works as effectively as possible.
My next question is on the cooling-off period. The Bill I and my colleague Deputy Doherty put forward had a cooling-off period of two years. It is regrettable the cooling-off period in this Bill is not for two years. In Mr. Devitt's opening statement he mentioned this. When we had a discussion on my Bill, a number of people who came before the committee spoke about a minimum cooling-off period of two years. The witnesses deal with this all of the time and the committee deals with it from time to time. Will Mr. Devitt explain the importance of the cooling-off period? For people outside to understand the importance of this, why does he believe it should be two years? It is my view that a minimum two-year cooling-off period is very important to maintain transparency as well as standards in the lobbying process. I ask Mr. Davitt to comment on this.
Mr. John Devitt
We regard a two-year cooling-off period as a minimum. In some cases there should be a complete ban on former officeholders moving into roles that may pose a conflict of interest or may create the public perception of a conflict of interest. We know there have been cases, without mentioning specifics, where former senior officeholders have moved into roles in the corporate sector that undermined public trust and were the subject of great or some controversy. People have long memories and time moves fast. A two-year cooling-off period may not in itself address assuage public concern about conflicts of interest. These measures are introduced with a view to addressing the risk of a conflict of interest while someone holds public office. The promise of an appointment to a lucrative role in the private sector when someone is acting in a public capacity can serve as an incentive to abuse that position.
We have seen this in Ireland but international experience also shows that where members of parliament are promised a lucrative position in a company or role where their future employer has a stake in the decision they are making as public servants, that can and will inevitably pose a conflict of interest and that will do enormous damage to public trust in politics. It is for that reason we suggest that the measures be aimed at addressing potential conflicts of interest depending on the nature of the role the person is in. If someone is in a very sensitive or senior role holding a public office, there may be reason to prevent him or her from moving into a role that may create a public perception of a conflict of interest or undermine public confidence. I would suggest that we look at experience in Canada and elsewhere in this regard. As I said, it is not necessarily a time-sensitive matter. In some cases, by virtue of the office he or she holds and functions he or she performs, an office holder may be required not to move into a position that would undermine public confidence in that office - not in the person, but in that office - if he or she was to assume a role in the private sector.
That is quite interesting. I thank Mr. Devitt for commenting on that. My third question is on one of the perceived weaknesses of the Regulation of Lobbying Act 2015 in that it applies to persons, for example, a special adviser lobbying his or her former colleagues. If somebody is a special adviser in one Department, he or she cannot lobby officials, let us say, in that Department. We all know in workplaces, however, that someone acting in positions could have multiple interactions with people in other Departments. What are the witnesses' views on that? Should it not be the case that such a person should undertake all lobbying within the required time period and not simply with their former colleagues? Should the law not be expanded to say a person does not undertake direct or indirect lobbying? A person may, for example, want to work for a PR firm and be able to direct people he or she is managing to undertake that lobbying. This question is for both organisations so whomever wishes to answer first may do so.
Mr. John Devitt
I am happy to take that again. We recommended that a cooling-off period be applied to any official engaging in lobbying irrespective of whether he or she is making a direct communication with his or her former colleagues. Some officials who move from a senior Department role such as in the Department of the Taoiseach or Department of Finance and who have day-to-day dealings with colleagues in other Departments such as the Departments of Health, Education, Justice and so on, bring with them a great detail of know-how and expertise from their time in those Departments, as well as contacts. Those contacts and that know-how is very valuable to a future employer in the private sector.
Furthermore, many will be employed not as lobbyists per se but as senior management in public affairs consultancies or in the corporate sector. While the Act currently requires future lobbyists to consult the commission when assuming a role in the private sector or as a lobbyist where they may engage in direct communications, it does not prohibit them from directing lobbying efforts from working as, say, managing director of a public affairs consultancy or lobbying firm or, indeed, working in-house for a private company or corporation. Therefore, we would recommend that the cooling-off period be applied to public officials engaged in any capacity who may direct lobbying or even in those cases where someone may be in an advisory role to lobbyists or private interests who might engage in lobbying.
I thank the Deputy. I call Deputy Pearse Doherty.
I am sorry; I still have questions.
I am sorry. Ms Cassidy may respond.
Ms Elaine Cassidy
I thank the Deputy. The commission agrees that the definition should be widened. The commission has recommended in the past that the definition as it stands is too narrow and it should include context where a person had a significant involvement, influence or contact with people. It is clear the more senior a person is within the system, the more likely he or she is to have contacts and influence throughout the system. The commission made the recommendation that should happen.
Okay. I thank Ms Cassidy. One of the banes of my existence is probably in relation to the lobbying register itself. One thing I felt was absent from this Bill but that could be incorporated was some better connection to the lobbying register. I have often found the information one gets in the lobbying register to be too limited to be really meaningful. We often know the names of those who were there in terms of officials in lobbying organisations, the dates they had the meeting and a brief line on what it was on. It can be harder to ascertain the impact of this lobbying activity, however, which is obviously core and crucial. Where is the legislative impact? At what stage was a Bill amended? Do certain lobbyists have more of an impact than others and if so, who are they? Does Ms Cassidy have any thoughts on how the lobbying register could be improved to support the overall regulation of lobbying here? I suppose some of that could be used as an amendment to this Bill in a way just to get the transparency out there more.
Ms Elaine Cassidy
The information that is in the lobbying register is coming directly from the Act. The commission has not made a recommendation specifically on it but we are obviously the creature of statute, so if that was made an amendment to the Bill, we would make it happen.
I thank Ms Cassidy. I understand it is more difficult for Mr. Devitt to comment on what he thinks will be included but it would be helpful if he could.
Mr. John Devitt
I thank the Deputy. The Government made a commitment in 2016 to a legislative footprint as part of its national action plan, which is known as the Open Government Partnership. Whether or not it requires legislation, what we would like to see is the facility to allow members of the public to trace those contacts and the information that is shared between lobbyists and public officials or Members of the Oireachtas in order that the public can see what information is being used to influence public policy or whether someone like me is being listened to or a member of an industry group is having influence over that same public policy. I think it will largely depend on the ability to think laterally and creatively about how we can interconnect existing platforms, such as the Oireachtas website and lobbying.ie, to allow people to move easily through each platform to understand how policy is made and legislation is drafted and what influence different stakeholders have.
It would also allow for people to understand whether a submission they have made in a public consultation has had the desired impact. This measure is aimed as much as anything at informing the public about how public policy is made and building confidence in that process. I do not know whether it requires legislation, but using the platforms that already exist, there is an opportunity for us to educate the public better about how this House works and how policy is made in practice.
It would be very interesting even for students to see how things work.
Mr. John Devitt
One of our goals is reducing the burden on any single agency or public servants in dealing with these kinds of queries. We hear the frustrations from callers to our helpline - members of the public and journalists who have had to submit multiple freedom of information requests to public bodies. If that information is shared on a proactive basis through platforms that are already being used, it will reduce the burden and cost of attending to those queries and in turn build confidence in the public service to be responsive to queries from the public as well as informing the public on how government works.
Deputy Mairéad Farrell has covered most of the ground. Obviously as the sponsor of the 2020 legislation, she has done a considerable amount of work. I know there has been considerable discussion of section 22 which deals with the cooling-off period. Would the Standards in Public Office Commission and Transparency International Ireland favour the type of provision in the 2020 Bill, involving a different period and different penalties?
The recent Standards in Public Office Commission submission gave its recommendations. Which recommendations will remain unimplemented with the potential passage of this Bill?
There are different views about the cooling-off periods for different people, with the proposal that some people should be barred and so forth. Is there a view about the uneven nature of lobbying? For example, a Deputy, Minister or Minister of State who decides to take up a role in the future as a lobbyist has unfettered access to the Houses of the Oireachtas which means he or she will meet Ministers, including taoisigh, Deputies and people who vote on legislation in the corridors, in the canteen and, God forbid, in the Dáil bar for those people who frequent the bar. Other people do not have that privileged access. Should that access for Members or former Members of the Oireachtas taking up roles in lobbying be restricted?
Ms Elaine Cassidy
I will start with the first question on the cooling-off period and the penalties. In all the previous submissions, the commission proposed the use of criminal penalties. The commission stands by that view to this day. It is not because the commission is against a civil and administrative sanctions regime generally, but in respect of this Bill, the view is that it is not effective or operable. That has been the view all along. That matter is covered in the 2020 Bill, as the Deputy knows.
The commission has not expressed a view on the cooling-off period being one year versus two years. This is primarily because the focus of the commission is on getting sanctions. Having one year or two years becomes irrelevant if we do not have the teeth to enforce it in first place. The view of the commission has been to focus on getting some teeth behind that legislative provision and being able to go after it for one year as it currently stands.
The list of all the unimplemented measures is very long. If the Deputy wishes, I can go through it. In summary-----
The point is that there is a long list here and it has been repeatedly requested by the commission. Rather than going through the long list, perhaps Ms Cassidy could outline the top three most important. If the Government were to commit to doing three more, which three would be most important to implement?
Ms Elaine Cassidy
I do not want to sound like a broken record. The criminal sanctions would be number one. The commission has not placed an order of priority on these. Mr. Devitt spoke earlier about extending the definition to persons with a significant involvement beyond the situation for the person who is only banned from dealing with his or her own Department, for example. I believe that is also an important one. Those two would stand out.
The Deputy also asked about the access paths. The commission has not expressed a view on that to date. It is a matter for the Houses of the Oireachtas.
Obviously it is a matter for the Houses of the Oireachtas and we have brought this to the attention of the Houses of the Oireachtas. While there have been major improvements over the years with the register of lobbyists, a considerable amount of informal lobbying goes on all the time. A lobbyist who has access to the Houses of the Oireachtas has access that somebody else, for example, someone lobbying for additional places for children with special needs, would not have. They may not be able to afford to employ a former Deputy, Minister or Minister of State.
It is about that little informal chat in the corridor as opposed to correspondence or arranged meetings. Surely to God, that needs to be dealt with. I know people will ask how that can be prevented at a GAA match or a local event. However, there is a unique status to that. I have no problem with former Members of the Oireachtas being able to come into the House without invitation. However, every member of the public, including the commission members, cannot walk unaccompanied into the House without having an invitation on sitting days from an Oireachtas Member. In looking at how lobbying in the round takes place, it is something the commission should consider.
Ms Elaine Cassidy
All those lobbying events are registerable events and they should be recorded.
Where?
Ms Elaine Cassidy
On the lobbying register. Whether a quiet chat, an email or a formal meeting with the Minister, they are all registrable events.
I will come to that because I have views on it. The first point relates to clarity as to where the restrictions are and are not applicable. As Deputy Doherty just said, we, as public representatives, tend in the course of our business to be obliged to meet people representing a point of view on their own behalf or that of others. It is difficult to determine whether such a meeting is a breach of the lobbying Act or not. Do we have to consult the register to find out whether any of the people presenting are lobbyists or not? Could that interchange become a crime? How do we protect ourselves and the public right to access public representatives?
Mr. John Devitt
I may have misunderstood the question. Is the Vice Chairman asking how we draw the line between a lobbyist and an ordinary member of the public who wants to petition a public representative?
Correct.
Mr. John Devitt
The legislation, broadly speaking, does a good job in making that distinction. I am a lobbyist. I hold a role as a professional campaigner for openness and transparency in public life. I am paid to do this job. I have no problem or issue with registering as a lobbyist and complying with the legislation. There is a distinction between my role as a professional campaigner or advocate and as a private citizen who might petition my local councillor on a local matter or a Deputy on something separate from my day-to-day work. The legislation in the round does a good job distinguishing between the two and avoiding posing too high a barrier to accessing one's public representatives.
I am agnostic on the point Deputy Doherty raised in respect of access to Leinster House. I do not see the need for a pass for me to access the House. If I wanted to meet with a Deputy, I would call him or her up and meet on campus or somewhere else. However, I can see why continued access to the campus for former Members creates a perception of favourable treatment that might want to be addressed.
I will address a couple of Deputy Doherty's questions. We would support the provision in Private Members' Bill for a two-year cooling-off period as a minimum requirement and the extension of criminal sanctions for failure to comply with those requirements. Like the committee, we have too many recommendations to list in full but I will highlight two or three. First, as I have noted, is the need to require lobbyists to disclose sources of income or funding. That would include not-for-profit organisations such as mine, as well as business representatives or lobby groups. This legislation was enacted in large part because of the findings of the Mahon tribunal and the prosecution that flowed from those findings. That planning tribunal centred on lobbying and the use of payments through lobbyists to public representatives. The Act still has not addressed the risk that lobbyists could be used to unduly influence public policy using their office or profession to act as a conduit for payments to public representatives or public officials.
We suggested that there be a duty to maintain records by all public officials. The onus should not just be on lobbyists to make a return to the lobbying register but also on public officials to keep a record of any contacts with lobbyists to allow for triangulation and audit of returns made by lobbyists, where required.
More minor recommendations would include provision to allow the commission to have regard to the code of conduct when determining whether there has been a material contravention of the Act and to publish the findings of any investigations or decisions in respect of section 22 and the cooling-off period, as allowed for under the ethics Acts. I could list many more but am aware of time.
I will come back with a couple of issues. I agree on conflicts of interest and on the need to ensure there are not such conflicts and that the general public is not misled by somebody with such a conflict or a lobbyist with a particular interest by virtue of being such but who, in so far as the general public is concerned, is a private citizen having no interest whatsoever. That needs to be covered.
In the context of the legislation regarding Oireachtas Members having influence on issues such as were covered by the Mahon tribunal, I cannot understand how they would have such influence at present. Oireachtas Members are not members of local authorities and have no function in the matter.
The GDPR was landed upon us all without warning. I opposed it in principle because it was sprung upon the Oireachtas on the basis that it had to be. It was a decision made somewhere else. It is now being used as a means of depriving us of information that we, as public representatives, have a right to get from various offices, on the basis of being elected. On the other hand, there is often an expectation that we get a letter from the individual or group with regard to whom we are making the enquiry, and get their permission beforehand. That has no basis in law anywhere. I have never heard of anything like it. It was foisted upon everybody, affects all public representatives and is a means of slowing down or refusing to give information that is requested. That is a breach of the democratic principles we represent.
I would be loath to see the development of something similar in the lobbying Act because people have rights and we public representatives derive our rights to make representations on behalf of citizens from the electorate and not from anybody else. If we are impeded in that regard and if guidelines or rules are made to restrict the manner in which we can do it, how would we make representations in a case where we are opposed to the antics or activities of the person concerned? Do we presume that we get permission from the individual or entity to make the case against him, her or it? That does not stand up.
I am only using this as an example. I am in agreement with the Act in principle. I worry a little about the need for a bit more clarity on where we are going. In the course of my weekly advice clinics, I could meet somebody who is a lobbyist but I would not know that. Am I going to question all the people concerned? I do not know that either. I am not too sure about it. I am also not too sure about its constitutionality in this country. In other countries across Europe, some of which have different constitutions to ours, it is possible to do things regarding prevention we could not or would not do here. I am talking about clarity.
I agree with cooling-off periods but there is a danger we may eventually end up paying people during those periods, if we prevent them taking up another role somewhere when they may have commitments, families, liabilities or whatever the case may be. We do not know that yet. That will be tested in court. If it is, and it transpires the State has to compensate people - it would be more common at the lower levels of remuneration - we cannot, for instance, freeze the right of a family to obtain employment by simply saying they cannot have employment A or B but they can get employment at a lower level somewhere else. That is not constitutional either. I am stating that so we are all aware because I want to do the right thing, as do Deputies Doherty and Farrell. We do not want to be in conflict with the system but we do not want the system to be so convoluted that we cannot do our job without breaching it. It is a wide road. I see Mr. Devitt is raring to comment.
Mr. John Devitt
I am nodding in agreement with much of what the Vice Chairman said. To return to the findings of the Mahon tribunal, it made recommendations in respect of standards in public life and measures aimed at addressing abuses in many different functions across national and local government. Notwithstanding the fact that the dual mandate was removed more than ten years ago now, a risk remains, despite the fact that the vast majority of public officials act with integrity and in the spirt of public service. There will always be a risk of abuse. We see it in every sector, whether it is the public, private or not-for-profit sector. Where the incentive and opportunity arise for somebody to abuse that position, he or she may do so where circumstances collide.
It is for that reason we need measures in place to address those risks, one of which relates to public contracting. Public officials have a great degree of discretion in awarding public contracts. Notwithstanding the guidelines and European Union regulations around public contracting, we see in neighbouring countries how those contracts have been awarded, sometimes to close associates of political representatives. We need to guard against that risk as well. It is for that reason we might consider extending the definition of a lobbyist, not just by virtue of the size of the company for which he or she works, which is currently set at ten employees. If it is engaged in lobbying, a company with ten employees or more must make a return and must register. However, perhaps because of the size of the public contract, for instance, a company is bidding for, an individual working in a partnership or small company may be bidding on a public contract for services worth significant sums. In those circumstances, we suggest that individual should fall under the definition of a lobbyist too.
To address the Vice Chairman's point about GDPR, I fully agree it has been used or misused, in many cases, to withhold information that ought not to be withheld.
There will be a conflict between the two Acts, at some stage.
I thank our guests. I will follow up on a couple of matters. Legislation on procurement went through the Seanad yesterday that included the matter of price-quality ratios in public procurement. Procurement is an area where it is very important we empower procurement officers to use quality criteria and assessment criteria. I note there seems to have been a fear of applying those measures. On the issue of inappropriate contracts, if we apply quality criteria as well as lowest bid criteria to the procurement process, we are more likely to identify situations where perhaps unsuitable applicants may be given contracts, such as those we have seen in the UK.
I will follow up on two or three matters. Mr. Devitt mentioned being employed as a lobbyist for an NGO. It may be important to look at heads 5 and 6 because these are important areas. The changes in the Bill should make it clear it will apply regardless of whether somebody is remunerated or is an employee, where he or she is, in effect, a representative of a coalition of business interests or a business representative body. It is the fact of the individual being an officeholder. For example, in one instance, I was on a committee that was lobbied by somebody who told us they held a voluntary role but was representing a number of bodies that had very significant financial interests, even though there was no direct financial interest in respect of the individual who may have been lobbying. In that same instance, and I wonder if this is something that could or should be addressed in the Bill, it was interesting that there was a coalition of business interests but I remember that person declined to confirm all the members of that coalition. On transparency, where there is a coalition of business interests lobby, it is important all the members of that coalition are named so we know, when we speak to a person, who we are speaking to. I am not sure whether my microphone cut off.
The Senator is back again.
It is about the importance of effectively knowing, where there is a coalition of business interests, all the members of it so we are aware of who we are speaking to, even if the actual member we might speak to may be a voluntary member. That relates to heads 5 and 6. I would love comments on that.
I am also interested in section 22. It seems the Bill will allow for investigation of breaches under that section but will exclude those breaches from the potential offences category. Do either of the witnesses want to comment on how that would be treated under section 22?
On the point of different sensitivities of different laws and the idea of the two-year standard, it was mentioned there are roles that are very significant and have access to, for example, major public expenditure plans or ten-year strategies. Identifying situations where a period longer than two years will be needed was mentioned. That might be very relevant. For example, there may be somebody who is aware of a ten-year Government strategy in an area. There are concerns if that person then moves, after two years, to be a lobbyist for those who will engage with that strategy.
I ask for comments on where an extended cooling-off period may be appropriate, the questions relating to voluntary persons working for bodies but who are representing business interests, the naming of all the members of a business interest coalition, and section 22.
Ms Elaine Cassidy
I will start with the coalition of business interests. Both issues relating to that are covered under the general scheme, namely, the requirement to name members and the ability to avoid the current situation where somebody is not covered because he or she is not paid and the organisation just has volunteers.
Regarding sanctions under section 22, it is the commission’s view that criminal sanctions are the appropriate regime because that is what applies to the other offences under the Regulation of Lobbying Act.
Regarding situations where there is more nuance than the standard cooling off period would require, that is something on which the commission has not expressed a view. It will be up to the Department of Public Expenditure and Reform to see if that situation can be dealt with within the Bill’s drafting.
Mr. John Devitt
I agree there should be no reason that a coalition of business interests or non-profit organisations like mine – we work closely with the Irish Council of Civil Liberties, Amnesty International and Front Line Defenders on promoting human rights – could not name its members in its returns. I also agree with the commission that criminal sanctions should be extended to breaches of section 22.
Regarding Deputy Farrell’s question, we have suggested that cognisance should be taken of the system in Canada where certain public officials have much longer cooling off periods or are prohibited from moving into certain roles that may present a serious conflict of interest. I am thinking particularly of roles where someone has continued access or knowledge and know-how that he or she may have gained during his or her time in office that would confer an undue advantage to an employer in the private sector or present a conflict of interest, full stop. For example, senior gardaí or gardaí in certain operational roles have knowledge and know-how that would confer an advantage on employers in the security industry. Members of the Central Bank may have information and know-how that would confer an undue advantage on practitioners in the financial industry, which may present a conflict of interest. We have suggested that, while there should be a minimum cooling off period of two years, some discretion be afforded to the commission in advising those applying to move into certain roles in the private sector and that account be taken of the roles they have in the public sector and the roles they would hold in the private sector.
I have two further questions, one for SIPO and the other for Mr. Devitt. The witnesses will be aware that my colleague, Senator Ruane, tabled the Electoral (Civil Society Freedom) (Amendment) Bill. There is a concern about how the definition of “political purposes” has been widely interpreted in charities regulation and so on. There is consideration – I believe it may emerge during the course of the debate on the electoral legislation – about making it clear what constitutes “political purposes” in terms of electoral purposes as opposed to the wider scope of “political purposes”, which can serve to disadvantage charitable organisations, which often engage in activity against what can be very well-resourced commercial lobbying. Do the witnesses have comments on this matter? It relates to this area.
The Bill specifies the question of where someone has a role or is an employee in respect of a set of interests. Is there a need for consideration of situations where a person may not be employed by or have a formal named role in a particular company but may acquire a significant shareholding in it or a business interest and may be engaging in lobbying? There is a cooling off period, but perhaps the witnesses will comment on how such a situation would pan out under this Bill or whether the issue has been examined.
Mr. Brian McKevitt
I will take the Senator’s point about the Electoral (Civil Society Freedom) (Amendment) Bill, the commission’s functions in terms of third parties and the definition of “political purposes”, which is something that the commission first raised in a 2003 report when examining third parties’ obligations and which we have been recommending be addressed ever since. The commission’s role has been to implement provisions as they stand, which has caused certain difficulties with court casts and so on. The commission has stated in recent years – I cannot remember whether it was in our 2019 or 2020 annual report – that it has to consider each individual case where the definition is engaged in terms of third parties but that it will take into account people’s constitutional and European rights in respect of the need for organisations to represent themselves and to raise funding in support of those functions as well as whether the functions of those third parties are engaged primarily in elections and referendums or more generally in campaigns on public policy. If the Electoral (Civil Society Freedom) (Amendment) Bill is not adopted, it is hoped that, in the context of a general review of legislation, this situation will be reviewed by the electoral commission once it is set up and is considering which functions of SIPO as regards political donations and other matters will be transferred to it.
The shareholding issue was not addressed there, so someone might put some supplementary information in writing for me. I am interested in this matter. It is one that is not as tightly regulated as it could be. We can revert to it.
Mr. John Devitt
I will address the Electoral Act 1997 briefly. We work with Amnesty International, Front Line Defenders, the Irish Council for Civil Liberties and others in the Coalition for Civil Society Freedom, which has campaigned and lobbied for an amendment of section 22 of the Act, which imposes burdens on non-profit organisations that are equivalent to those imposed on political parties. This has meant that many non-profit organisations are unable to fundraise for work around human rights or any other public interest issue in which they are engaged. It was an inadvertent consequence of the passage of the Electoral (Amendment) Act 2001. As noted by the Minister of the time, it was not intended to apply those rules to not-for-profit organisations engaging in day-to-day advocacy. It has meant that many who are engaged in lobbying, or who are inclined to engage in lobbying, are nervous to do so for fear of falling foul of these measures. The Act has been criticised by EU and UN bodies, which have noted that it impedes civil society freedoms and democratic norms.
We have supported a Private Members' Bill, tabled by Senator Ruane and supported by Senator Higgins, which would have more neatly defined the term “political purpose” and avoided any confusion that currently arises from the Act. The current proposals to wait until an electoral commission is established mean that not-for-profit organisations will continue to be burdened with these draconian regulations, which, as I said, were an unintended consequence of the amendment Act of 2001.
On shareholding, we had suggested back in 2014 that significant shareholders who engage in lobbying be captured by the Act as well, perhaps those with over a 25% shareholding, which is the current requirement for registration as a beneficial owner of a company, but I am aware the commission might have more on this than I have.
I have a final question for the commission. Our group and I am sure many others made submissions in regard to the consultation on Ireland’s statutory framework for ethics in public life. One of the key areas identified was putting certain principles on a statutory basis, including public interest. Does SIPO have comments on how this Bill fits into that wider statutory framework on ethics in public life?
Mr. Brian McKevitt
I will reply on behalf of the commission. On the ethics legislation from 1995 and 2001, we have been looking for review and consolidation of that legislation since the 2009 annual report that fed into the Public Sector Standards Bill as published, which obviously fell. The commission is very much in favour of moving on this. It is contributing to the existing review of ethics legislation, which is part of the overall reform package of the various measures that have been brought in over the last number of years, of which the lobbying Act is one part.
I thank our witnesses for coming forward and giving us of their time. I also thank the members and staff for their contributions.
This is important legislation and it has to be even-handed. We have all been aware of situations where things went wrong that should not have gone wrong, and where perhaps we should have been more alert. Notwithstanding all of that, we still have to have a balance and that balance has to be on the basis of a democracy. We live in a democracy. We are elected by the people directly, which is not applicable in all other European countries, or in the United States or Canada either. There is a distinct difference in that people who are not elected by anybody can gain public office. I know people can point to exceptions in this country too but they are exceptions, whereas in other countries they are not. Those people are in the position of being in business and enterprise, and are private citizens, or whatever the case may be, and they are suddenly sprung into a pivotal position that gives them power and authority that goes alongside and supersedes that of the public representative. It is something I do not agree with at all, now that I think of it, but it is there.
We in public life often have situations where a meeting may be used by some lobbyists, with a large group of people put into the front row whereas the manipulation is done in the background, and it may be difficult for a public representative to find out where the pressure is coming from and from whom, and so on. I have been there several times and I have been the victim several times, but we will not go into that and I am not looking for compensation, incidentally.
I again thank everyone for their attendance. The meeting will adjourn until 12:30 p.m. on Wednesday, 25 May, when we will meet in private session in advance of public session at 1:30 p.m., when we will meet representatives of the Financial Services Union and later with representatives of Electric Ireland and Energia, possibly, to discuss the impact on customers and the banking arrangements as a result of the withdrawal of Ulster Bank and KBC from the Irish market.
The joint committee adjourned at 3.05 p.m. until 1.30 p.m. on Wednesday, 25 May 2022.