Regulation of Lobbying Bill 2014: Report and Final Stages

I welcome the Minister. Before we commence, I remind Members that a Seantor may speak only once on Report Stage, with the exception of the proposer of an amendment who may reply to the discussion on it. On Report Stage each amendment must be seconded. Amendments Nos. 1 and 2 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 8, between lines 24 and 25, to insert the following:

"(p) any communication, howsoever made, by a person specified in subsection (2)(a), (2)(b) and (2)(c) where the purpose of that communication is to disclose relevant wrongdoings.".

I welcome the Minister back to the Seanad. As he knows, the last time this Bill was before the House, I tabled an amendment that I believed would prevent whistleblowers from coming within the rubric of lobbying as defined in the Bill. The Minister told me it was certainly not the Government's "intention that matters which are an essential part of whistleblowing would be or could be relevant matters to be registered under this Bill". He assured me that the provisions of section 5(9) would preclude whistleblowing from being defined as lobbying. The definition of "relevant matter" for the purposes of lobbying in section 5(9) is worth noting. It provides:

"relevant matter" means any matter relating to—

(a) the initiation, development or modification of any public policy or of any public programme,

(b) the preparation or amendment of an enactment, or

(c) the award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds,

apart from any matter relating only to the implementation of any such policy, programme, enactment or award or of a technical nature.

I wish to reiterate my concerns. I look forward to hearing from the Minister on this matter. I have serious reservations regarding the protection of sources where an organisation might approach a Member of the Oireachtas with confidential information regarding actual or alleged wrongdoing. As I said previously, there is a subtle but importance difference between lobbying with the aim of changing official discourse or decision-making on a given issue and disclosing information with the aim of changing official discourse or decision-making on a given issue. Furthermore, this legislation places the Standards in Public Office Commission in the position of interpreting the balance of disclosure in this legislation. It will have to decide whether lobbying has occurred. I have expressed concern in the past about the commission's expansive interpretation of legislative provisions, particularly section 49 of the Electoral Act 1997 around including charities in the section under organisations acting with political purposes. My principal concern with regard to this legislation is that there is no provision for the disclosure of certain contacts to be exempted where privacy and confidentiality are important reasons for the person or organisation coming forward in the first instance. I do not wish to rehearse in full the concerns I set out the previous time we debated this Bill. I think it would be fair to say the Minister appeared to agree on that occasion that there is a potential issue here. I think he said he would write to the Attorney General in this regard. I wonder if he can advise us now if his concerns and mine were so addressed.

I second the amendment which has been explained very well by Senator Rónán Mullen. I do not need to add to it. There is little doubt that it is not intended that this Bill will lead to a whistleblower who approaches a Member of this House or the other House being accused of lobbying or regarded as a lobbyist. I know that is not the intention of the Minister. I am not sure we have solved this problem.

I thank both Senators for raising this issue. I undertook to reflect on the very coherent case that was made in this regard on Committee Stage. Certainly, the intent as set out by Senator Rónán Mullen coincides with the intent of the Government in this regard. While I was confident in the position I set out during the Committee Stage debate, I agreed - ar eagla na heagla and for the avoidance of doubt - to consult further the Office of the Attorney General and have the Chief Parliamentary Counsel examine this matter in some detail.

Amendments Nos. 1 and 2 seek to exempt from the scope of the Regulation of Lobbying Bill any communication coming within section 5(2)(b) relating to a representative body or within section 5(2)(c) relating to advocacy bodies "where the purpose of that communication is to disclose relevant wrongdoings". I said I would reflect further on it and take further advices. I have consulted the offices of the Chief Parliamentary Counsel and the Attorney General on this matter. On foot of those censultations and my further examination of the issues involved with my own staff, I want to set out for the information of the Seanad the case that has been presented to me.

There are very limited circumstances in which there could even be a potential lack of alignment between the Regulation of Lobbying Bill and whistleblowing-type communications, or where that is likely to occur. There are two reasons for this. First, to be a registerable activity under the lobbying legislation that is in front of us, the communication must be carried out by a person within the scope of sections 5(1) and 5(2)(b) with a designated public official, as set out in the Bill, and come within the definition of "relevant matters" under section 5(9), as Senator Rónán Mullen has read into the record of the House. Second, the type of information that would be required to be registered is not detailed and is unlikely to cause problems of the type envisaged by the Senator other than in very limited and specific circumstances. That is the strong advice I have received.

I have looked specifically at the alignment of the Bill with the Protected Disclosures Act 2014, which is the current whistleblowing legislation. The 2014 Act focuses on whistleblowing within the workplace and seeks to ensure protections from reprisals or any sanctions imposed in the workplace for the disclosure of wrongdoing in that environment. The scope of the issues raised by the Senator on the previous occasion, as evidenced by the actual text of the amendment before the House now, is considerably broader than this. The Senator is seeking to extend confidentiality beyond the workplace setting to a wide range of other areas which are not captured by the 2014 Act, which simply seeks to protect those reporting suspected wrongdoing in the workplace.

I accept that these amendments are very well intentioned. My concern is that the creation of an exception along the lines now proposed would inadvertently create a significant loophole in the Regulation of Lobbying Bill. It would mean that lobbyists who are able to link the matter in which they are interested in any way to an allegation or suspicion of wrongdoing would benefit from a broad concession that would allow them to decide what goes on the register and what does not. It is certainly not the intention of the Senator to provide for such an out for people who do not want to register these communications.

I am proposing to address this matter by adopting a balanced response which would identify and put in place a strategy to address this issue while maintaining the integrity of this Bill and of the Protected Disclosures Act 2014. I propose that we should allow this legislation, as it stands before the House, to operate for the first 12 months and use that period to gather evidence, if such evidence manifests itself, on the narrow range of whistleblowing communications that may warrant protection from disclosure. This would be done in consultation with Members of both Houses. I think both Senators are particularly interested in communications with Members of the Oireachtas. I would welcome, in particular, the input of Senators as part of that consultation process.

In plain English, I do not want to put a lacuna in this legislation to address an issue that may or may not arise. Instead, I ask the House to give this Bill a year because we are going to review it after a year. If any such issue arises, we can craft a bespoke solution to the problem that actually arises, as opposed to accepting a solution that, on the face of it, creates an ever bigger problem than one which might potentially arise in this narrow area of whistleblowing. I am strongly advised that this approach which involves living within the Bill for an initial period before deciding on a specific amendment in this area is supported by the Chief Parliamentary Counsel. It would enable evidence to be collected to focus any amendment or regulation that might be required on the particular type of communication that may necessitate the enactment of protection, rather than having a broad amendment which, as I have said, in the view of my advisers, in the view of the Chief Parliamentary Counsel and in my view would actually do harm to what we want to achieve.

I am taking seriously the point that has been very well made by the Senators. The strong advice I have received is that this is very unlikely to arise. If it does arise, we would have to address it in a way that addresses the manifestation of its need in the course of the actual implementation of an Act. I hope the Senators will give the legislation the space to do this in the next 12 months. If an issue that needs to be addressed arises within the first 12 months, or in a review 12 months after that, I assure the Senators that it will be addressed.

I thank the Minister for his response. However, I have to say I am not happy with it. I say this as somebody who has great respect for the Minister as a legislator and particular respect for his credentials in this area. Quite frankly, as I listened to his response to me, I could not help concluding he was quite aware that I was on to something. I suggest he is quite sympathetic to what I am proposing.

This is yet another example of a culture that has crept into Irish parliamentary life, although perhaps it was always there. It is that the Government does not accept Opposition amendments unless it is absolutely shamed into doing so, and unless it is blindingly obvious that some massive injustice will occur unless they do. That is not sufficiently respectful of the role of the Oireachtas. The Minister's answer amounts to saying we may be onto something and that there may be some mischief in the form of a problem for potential whistleblowers if no exception is created, as I have proposed. He is suggesting, however, that if we create this exception, some other mishap or problem will occur, but he gave no definition of what type of mischief could result from creating not a lacuna but a legitimate exception, to allow Members of the Oireachtas to do their work, as the Minister has done in this very area, by listening to people who have evidence of wrongdoing and letting that inform their work as legislators.

In recent days we have had a particularly intense discussion about the role of advice from the Attorney General, legal advice to the Government, the occasional lack of transparency around the procurement of such advice, and questions as to whether such advice turns out to be well-founded in the fullness of time. Since I raised this issue last week, I have not heard from the Minister or his officials. It is not my ego that is hurt, but I remind the Minister that I brought forward a specific instance of a situation which I felt necessitated the amendment I have proposed. Senator Denis O'Donovan, who is in the Chair today, remembers the issue well because he was also involved in that debate on the Defence Bill with the former Minister, Deputy Alan Shatter. We came to know about wrongdoing in the proposed appointment of particular persons, or certainly procedural failings leading to a likely lack of qualification on the part of a person who was intended to be appointed by the Defence Forces. We did not, and would not, disclose the source of that information. Indeed, I was contacted by the military police on that very matter. If an organisation or representative body had approached us, however, seeking to encourage us to oppose that legislation and giving as a reason for such opposition certain wrongdoings or procedural irregularities that had gone on before, there would be a lack of protection for them. In other words, if this Bill were to apply in those circumstances, they would be in a situation in which such an approach to myself or Senator Denis O'Donovan would have to be recorded somewhere as lobbying. That very fact would have a chilling effect on them. The whole point of approaching a Member of the Oireachtas is to give them information. Members of the Oireachtas have privilege of adverting to that information in whatever way protects their source but allows them to address a mischief.

Let us imagine there were no protection such as I am proposing. If an organisation or representative body wanted to report some wrongdoing in the course of lobbying us on legislation and seeking to influence our position on legislation and, in order to persuade us of this, drawing our attention to some wrongdoing that lay behind the need or push for such legislation they might well suffer a chilling effect. In other words, they may well be unlikely to approach us because if it were known that they had approached us in particular circumstances it might expose them, or persons working for them, as being in breach of official secrets legislation. It is as serious as that.

I have given the Minister a real-life example, not just today but also last week. The Minister's officials should examine the record of what was said in the Seanad during that debate on the Defence Bill. In that way, they will see whether I produced an example to illustrate the need for the exception I have proposed in my amendment. With sincere respect to the Minister and his credentials, I ask him to address that point. I do not believe he has addressed it or given any credible example of any possible mischief that could flow from including the exception I am proposing. In fact, if there is a balance of convenience or a benefit of the doubt to be given, it should be given to Members of the Oireachtas who want to be able to receive information about alleged wrongdoings. Such information should be received in confidence, if necessary, in order to allow them to do the job. The judgment of Members of the Oireachtas should be trusted as to whether the disclosure of wrongdoing is in fact bona fide. That is the side towards which the Minister should be leaning in these circumstances.

I thank the Senator for his kind comment about my own performance. Unfortunately, he punctured it a little by going on to say that somehow I never accept amendments. That is not my form.

It is a culture.

It is a culture that is not exercised by me, as even a cursory examination of my record will show. I come ihere with an open mind. I have had good ideas in Opposition that were seldom accepted. In the 1990s, I spent some time as my party's spokesperson on justice and produced very good legislation on a Garda ombudsman and a Garda authority, all of which was voted down. I knew go dtiocfadh ár lá, however, and that they would come into being some day. Therefore, I always come into this House or the other House with an absolute respect for ideas coming from the Opposition, and honestly with an open mind. I reject the notion that there is a culture, that I am the creature of the Civil Service, or captured by my Department. That has never been my style.

I have always believed in the role and right of the Oireachtas to legislate, as well as the right of the Opposition to be heard and to have good ideas implemented. That is why I responded as I did on Committee Stage, saying that there was something I needed to think about here. I do not think the Senator was listening to me earlier. It was not simply a vague notion that his amendment could do a mischief. His amendment would do a mischief, and I will explain why. I did explain it already, but will refer to what I said earlier. The structure of the Bill is that the person who needs to make the registration is the lobbyist - the person doing the lobbying. Therefore, it is not a matter for Members of the Oireachtas to make any judgment call at all about whether a matter is registerable. If information is given to the Senator, whether or not he thinks it has merit or there is wrongdoing, it is neither here nor there as regards it being registerable. That is a matter that falls on the legal obligation of the lobbyist.

My fear is not about the goodwill of Members of the Oireachtas but about putting a lacuna in the Bill that undermines the whole registration process and essence of this Bill. This could occur if one couches the information given in lobbying by saying it will resolve mischief or that there is some wrongdoing attached to it. With a clear conscience, that absolves the lobbyist from registering and guts the whole purpose that this Bill set out to achieve. That purpose is to ensure that when people approach decision-makers - Members of the Oireachtas or members of the Government - that approach, if it is captured in the way set out in section 5, is required to be registered. My formal advice from the Parliamentary Counsel is that that is the effect of the Senator's amendment. I have a difficulty in accepting it because I think that is a greater mischief than the mischief he seeks to resolve. With an open mind, however, I said there is a potential that the Senator might have some issue. Let us see how it works and cure it in a way that does not cause greater harm. That is the only thing I have asked for.

The Senator cited a specific case. Normally on Committee Stage we listen to all Senators, although we do not do one-to-one dialogue. It is not normal to do so between sections with individual Members of the House. The debate is for all Members because other Members have an interest in the Senator's amendment also.

The Senator will forgive me if we did not have one-to-one dialogue with him in the past seven days as we researched these matters and as I sought further advices on them. He gave me a particular instance. I took the view at the time that the particular instance would not be captured by this lobbying legislation. It relates to the giving of information to a person. Let us suppose another person demanded the specifics of that information. That scenario is clearly exempted under section 5(5)(d) because the other person is seeking information about something that is factual. If one person gives another factual information about wrongdoing, it is exempt. My advices are that such a scenario would not be captured by this legislation. If, in the fullness of time, some issue does arise that creates a difficulty, I am pleased to say I will deal with it with an open mind when it is manifest.

Is the amendment being pressed?

May I respond to the Minister?

The Senator cannot reply again. I am sorry, but he has spoken twice. That is the rule.

That is understood.

Obviously, the Senator can press the amendment.

I am keen to accept the Minister's correction on the point that the Oireachtas Member would not have to disclose and I wish to acknowledge the bona fides of the Minister in that regard.

I said that it was not a case of my ego being offended. However, I did not hear from the Minister that the Department had examined what happened in the case of the defence Bill. I remind him that this amendment seeks to protect a communication whose purpose is to disclose relevant wrongdoing, as opposed to wrongdoing dropped in by the way.

Amendment put:
The Seanad divided: Tá, 15; Níl, 20.

  • Barrett, Sean D.
  • Bradford, Paul.
  • Byrne, Thomas.
  • Craughwell, Gerard P.
  • Crown, John.
  • Daly, Mark.
  • Leyden, Terry.
  • Mullen, Rónán.
  • Norris, David.
  • O'Donovan, Denis.
  • Power, Averil.
  • Quinn, Feargal.
  • White, Mary M.
  • Wilson, Diarmuid.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Neill, Pat.
  • van Turnhout, Jillian.
  • Whelan, John.
Tellers: Tá, Senators Rónán Mullen and Feargal Quinn; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.

Amendment No. 2 has already been discussed with amendment No. 1.

I had hoped to call for a walk-through vote.

We have moved past it.

I move amendment No. 2:

In page 9, between lines 14 and 15, to insert the following:

" "relevant wrongdoings" are defined exclusively as follows:

(a) the commission of an offence;

(b) a miscarriage of justice;

(c) non-compliance with a legal obligation;

(d) health and safety threats;

(e) misuse of public monies;

(f) mismanagement by a public official;

(g) damage to the environment;

(h) abuses of constitutionally protected rights; or

(i) concealment or destruction of information relating to any of the foregoing.".

May I make a brief comment on amendment No. 2?

It has been discussed already.

Perhaps the Minister has good news for me.

Is there a seconder for the amendment?

I will second it.

I have indicated to Senator Rónán Mullen that I believe the amendment, as crafted, is not acceptable because it would do more damage to the Bill. I think the Senator understands this. I have been talking to my officials about whether we could accommodate the essence of the amendment by way of regulation. I would like to make an offer to the Senator before he decides whether to call a vote on this amendment, which is that my officials might discuss this matter with him in the coming week. I hope this legislation will be enacted before the middle of March. Perhaps we can provide for this issue to be captured in regulation some time after that.

We have discussed the amendment already. Is it being pressed?

In the light of the Minister's response, I am happy to press the amendment.

I would like to facilitate Senator Thomas Byrne, if that is possible.

On a point of order, I wonder whether we could postpone Final Stage until the Minister has a draft of the regulation he proposed. We have been fobbed off, not by this Minister but by others, in the House many times. It happened most recently during the debate on the Irish Water Bill when the Minister, Deputy Alan Kelly, said he would accept changes and listen to the Opposition.

I withdraw my offer.

I want to respond.

(Interruptions).

The Minister said something very positive. Did I hear him say he has now withdrawn everything?

The regulations cannot be drawn up until both Houses have enacted the Bill. The notion that we could not deal with Second Stage until I had draft regulations is impossible. That is the conditionality. I am trying to accommodate the Senator-----

I am grateful to the Minister.

-----but obviously the offer of accommodation has not been accepted.

That is the democracy in which we live.

I very much welcome what the Minister has offered. I presume the offer stands, regardless of whether Senator Thomas Byrne says what he says or I press the amendment.

Amendment put and declared lost.
Government amendment No. 3:
In page 14, line 6, after “been” to insert “(whether before or after the passing of this Act)”.

I am suggesting this minor technical amendment to provide clarity around the provision of section 12(4)(f). Section 12(4) of the Bill details the information lobbyists must supply in the returns to the registrar on a tri-annual basis - that is, every four months. Section 12(4)(f) states that the lobbyists must include in the returns "the name of each person who is or has been a designated public official employed by, or providing services to, the registered person who was engaged in carrying on lobbying activities". The Office of the Parliamentary Counsel has advised that in order to clarify that this provision applies whether that person was a designated official either before or after the passing of the Bill, a minor technical amendment should be made, as proposed in the amendment.

Amendment agreed to.
Bill, as amended, received for final consideration and passed.
Sitting suspended at 2.05 p.m. and resumed at 2.30 p.m.