Select Committee on Finance, Public Expenditure and Reform, and Taoiseach díospóireacht -
Wednesday, 7 Dec 2022

Regulation of Lobbying (Amendment) Bill 2022: Committee Stage

Chairman

We are in public session. I remind members to switch off their mobile phones. I welcome the Minister for Public Expenditure and Reform and his officials to the meeting. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Session one concerns Committee Stage of the Regulation of Lobbying (Amendment) Bill 2022.

Section 1 agreed to.

SECTION 2

Deputy Mairéad Farrell

I move amendment No. 1:

In page 3, to delete lines 20 to 22 and substitute the following:

“ “(c) each subsequent successive period of 3 years, or earlier if the Minister deems appropriate, beginning on the commencement of section 2 of the Regulation of Lobbying (Amendment) Act 2022.”.”.

Gabhaim buíochas leis an Aire as teacht os comhair an choiste. B’fhéidir gurb é seo a uair dheireanach os a chomhair sa ról atá aige inniu. I thank the Minister for coming before the committee. I acknowledge the fact that this might be his last time to do so in his current role.

As we know, the lobbying business is quite a fast-paced one. As legislation changes, it changes policy, but, most importantly, it also changes as technology changes. I do not like the fact that the length of time for review of the functioning of the legislation will be five years. I would be concerned that this period is too long, particularly given that we can see how technology can change so quickly and dramatically in a very short period. If problems arise as a result of some of the changes being made in the Bill a year or two after it is passed, there could be an attitude of "We'll have to wait and see until the next review". That could allow problems to persist for a few years before they are resolved. A shorter review period acknowledges the fast-changing nature of the lobbying business and would be better suited to addressing weaknesses or shortcomings in a timelier fashion.

Minister for Public Expenditure and Reform (Deputy Michael McGrath)

I thank the Deputy for her amendment. She brought forward a Private Members' Bill on behalf of Sinn Féin. I acknowledge her work in that regard and the amendments she has put forward today with a view to, as she sees it, strengthening the Bill.

Section 2 of the Regulation of Lobbying Act 2015 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 Act since it was enacted in 2015. Section 2 of the Regulation of Lobbying (Amendment) Bill 2022 amends section 2 of the Act to allow for the period between statutory reviews of the Act to be extended from three to five years. The Deputy's amendment proposes to reset the period between statutory reviews to three years and allows for a shorter timeframe if the Minister deems it appropriate.

Following my Department's recent in-depth review of the 2015 Act, I have decided that the review period should be five years for the following reasons. This legislative provision must supplement other provisions for scrutinising the impact of legislation. Like all legislation, this amending legislation will be subject to post-legislative scrutiny after enactment. There is an in-built review after one year. 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. 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 such intervals remain reasonable. Furthermore, my officials keep in close contact with the Standards in Public Office Commission on the operation of the legislation and the formal statutory review process. There would be nothing to prevent my Department conducting a review within an earlier timeframe if the situation warranted it. Therefore, I do not propose to accept the amendment at this time.

Deputy Mairéad Farrell

I felt we worked quite well in terms of this and other legislation. I still feel it should remain at three years. If there are changes and if there is a need for a review, the Minister is saying that if he was in that position, he would make sure the review happened, etc., but the people in positions change. That is where my concern lies. This is why I feel a three-year period is a good length of time.

It is extremely important in terms of lobbying and the regulation of it, but there is also the impact on public confidence in public life. We spoke at length about that. Having more regular reviews is very important and I believe the three-year period should remain. I take on board what the Minister said, but it is my view that it should remain at three years.

Chairman

How stands the amendment?

Deputy Mairéad Farrell

I am pressing it.

Amendment put and declared lost.

Section 2 agreed to.

Section 3 agreed to.

SECTION 4

Chairman

Amendments Nos. 2 and 3 are related and will be discussed together.

Deputy Michael McGrath

I move amendment No. 2:

In page 4, line 8, to delete “employees” and substitute “full-time employees".

These are technical amendments to close off the possible loophole in respect of part-time employees. If people read paragraphs (a) to (c) of section 5(2) of the principal Act and the new paragraphs (d) and (e) that are to be inserted by section 4 of the Bill, they will see that a body may fall outside the scope of the new paragraphs (b) to (e), as currently drafted in the Bill, solely on the basis that it has only one part-time employee. The amendments have been drawn up to address this issue.

Amendment agreed to.

Deputy Michael McGrath

I move amendment No. 3:

In page 4, line 14, to delete “employees” and substitute “full-time employees".

Amendment agreed to.

Section 4, as amended, agreed to.

Section 5 agreed to.

NEW SECTION

Chairman

Amendments Nos. 4 and 6 are related and will be discussed together.

Deputy Michael McGrath

I move amendment No. 4:

In page 5, between lines 4 and 5 to insert the following:

“6. Section 8 of the Principal Act is amended—

(a) by the insertion of the following subsection after subsection (1):

“(1A) Subject to subsection (2), a registered person whose entry on the Register has been marked under section 11(4) with a statement indicating that the person has ceased to carry on lobbying activities shall not carry on such activities.”, and

(b) by the substitution of the following subsection for subsection (2):

“(2) A person does not contravene subsection (1) or (1A), as the case may be—

(a) in the first relevant period in which the person carries on lobbying activities if the person becomes a registered person before the relevant date, or

(b) in the case of a person referred to in subsection (1A), in the first relevant period in which the person recommences lobbying activities if the person complies with the requirements of section 11(5) before the relevant date.”.”.

These two amendments deal with the operation of the lobbying register. Regarding amendment No. 4, the purpose of the principal Act is to achieve transparency of lobbying, not to prevent lobbying.

As a result, and on foot of further consideration of the operation of section 8 along with section 11(4), as amended, and section 11(5), as inserted, of the principal Act, I have decided that section 8(2) should apply to section 8(1)(a) as well as to section 8(1). This means a person who is marked as having ceased lobbying should not be prohibited from carrying out lobbying activity, as long as the person has notified the commission by the relevant date, that is, within 21 days of the end of the relevant period, that they have resumed lobbying under section 11(5) and that they submit a lobbying return for that period.

Amendment No. 6 deletes the proposed section 11(3)(a) to be inserted into the principal Act, which states that a registered person will notify the commission as soon as practicable of any change in their information provided for registration. After further consideration of this provision, I have decided that it is sufficient for registered persons to notify the commission of any changes in their information, as held on the register, when making lobbying returns. This obligation is already provided for in section 12(6) of the principal Act and I am satisfied that a requirement to update information after each relevant period is appropriate, as against necessitating register information to be updated as soon as practicable, as stated in section 11(3)(a). It is important that the administrative burden on registered persons should not be increased unnecessarily and that there be consistency in how the legislation operates.

Amendment agreed to.

Section 6 deleted.

SECTION 7

Chairman

Amendment No. 5 in the name of Deputy Mairéad Farrell has been ruled out of order as a potential charge on the State.

Amendment No. 5 not moved.

Deputy Michael McGrath

I move amendment No. 6:

In page 5, to delete lines 22 to 25.

Amendment agreed to.

Question proposed: "That section 7, as amended, stand part of the Bill."

Deputy Mairéad Farrell

I wish to speak on this section because I had tabled an amendment on this, which concerned the detail. Sometimes we need to look at the details supplied by applicants for inclusion on the lobbying register. In the process of lobbying presentations can often be made and documents or research can be provided to the designated public official, DPO, as part of the act of lobbying. This information should be made available through the lobbying register as it would add more value and transparency around the act of lobbying. For example, certain research provided to the DPO could be found to be persuasive initially and changes to policy or legislation could be made as a result. However, that research may later prove to be incorrect. It would be helpful if we could see that, as it could speed up the process of making other changes to legislation or policy.

I had hoped there would be a requirement for the publication of such lobbying materials through the lobbying register. I imagine anything considered commercially sensitive could be redacted to exclude anything that is commercially sensitive. As we are all aware, plenty of documentation is not commercially sensitive in nature. This would have acted as a first step towards improving the functionality of the register. It would allow for a kind of legislative or policy footprint to be created, where we could begin to connect specific lobbying activity to specific changes in legislation or policy.

I found it very unfortunate that the amendment was ruled out of order. I do not agree with the reasons for that. The Minister did so because he probably thought the amendment would create additional work for the DPOs and would, hence, represent a charge on the taxpayer. The relevant standing order is being applied much too liberally in relation to this amendment. It is clearly possible to think up another set of conditions where it would not create additional work for a DPO. For example, if the obligation to upload the documentation were placed on the person doing the lobbying, there would be no additional work created for DPOs.

I am concerned that Standing Orders and mechanisms such as the money message are being used too much at this stage. I have spoken to Deputies who have had Bills in the current Dáil blocked using a money message. The Minister and I have worked very well together in the past number of years. It is unfortunate, therefore, that I have to raise these particular concerns at what may be his last appearance at the committee. I disagree with this Standing Order being used to block this amendment when it did not need to create additional cost of the taxpayer. We could have thrashed out the issue. Having heard from other Deputies who believe money messages are being used to block their Bills in this kind of a scenario, I submitted a parliamentary question to every Department to find out how many Bills in the 33rd Dáil had received a money message. Today, I received the first response from a Department indicating that the question had been ruled out or order under Standing Orders. The Minister can imagine how frustrating it was to get that response, and then to see my amendment that the Minister and I could have discussed being ruled out of order. It would not create additional costs for the taxpayer, but it would provide additional information for the taxpayer on how legislation is decided, how lobbying works and what kind of information is provided as part of lobbying. It would benefit everybody to see how legislation can be amended as a result of lobbying. If that information is so crucial, the more people who are aware of it, the better it would be for society.

I know this practice was a major issue in the previous Dáil, which was before I was elected. A minority Government was in place at the time and it operated through a confidence and supply agreement. It is very frustrating, however, in this Dáil, when the Government has such majority, that this approach would be used again. It is becoming a bigger issue and I intend to write the Committee on Standing Orders and Dáil Reform to have the matter looked at.

This section would only benefit from including additional information to allow people to see how legislation is changed as a result of lobbying of politicians and DPOs. If this information is so important that people need to go to their DPOs to tell them they need to know this with regard to different legislation, surely it will only be of benefit if everybody in the population can become aware of it. I am extremely annoyed and frustrated by this.

Deputy Michael McGrath

To state the obvious, neither I nor my Department rules on the amendments to a Bill that are to come before the committee. I will be happy to discuss the substance of what the Deputy has raised and proposed. The best approach may be if I put some points on the record and we can then discuss the matter in the context of the section.

Lobbying is an essential part of the democratic process. It enables and facilitates citizens and organisations to make their views known on public policy and public services to politicians and public servants. The aim of the 2015 Act is to provide information to the public about who is lobbying, on whose behalf the lobbying is being carried out, the issues involved in the lobbying, the intended result of the lobbying and who is being lobbied.

It is my view that sections 10, 11 and 12 of the 2015 Act already effectively ensure that appropriate and comprehensive information is provided by lobbyists and available to view by the public on the lobbying register to meet this critical aim. Requiring that documents giving to DPOs by lobbyists should be stored on the lobbying register, as proposed by the amendment, would mitigate provision of clear and easily accessible information on the register, which is one of the main aims of the Act. It would make the register too cumbersome to search and navigate and would not add anything to the already detailed information available on the register. It would undoubtedly add a significant administrative burden on the Standards in Public Office Commission, SIPO, as the regulator. Each such document would have to be reviewed to ensure it is appropriate for publication, for example, that it does not contain any personal information.

Furthermore, the regulation of the lobbying legislative framework does not operate in a vacuum. It is a key element of a wider suite of legislative initiatives to support openness, transparency and accountability. It is open to anyone wishing to seek further information on any register entry to request such from the relevant public body, and this can be done through a freedom of information request. To put the matter in context, there are some 70,000 returns currently available to view on the register, which had been submitted by approximately 2,400 registered individuals or organisations, with 11,600 returns of lobbying activities submitted to the register in each of the three reporting periods in 2021.

It gives a sense of the scale of the activity that is captured and recorded. If every single paper and document relating to each act of lobbying must also be uploaded it would place a very onerous responsibility on SIPO. Not all of them could be published for a variety of different reasons. I therefore do not propose to accept the amendment, which I am aware has been ruled out of order.

Question put and agreed to.

Section 8 agreed to.

SECTION 9

Chairman

Amendments Nos. 7 and 8 in the name of Deputy Mairéad Farrell are out of order.

Amendments Nos. 7 and 8 not moved.

Question proposed: "That section 9, as amended, stand part of the Bill."

Deputy Mairéad Farrell

It is unfortunate my amendments were ruled out of order. Amendment No. 7 was designed to support recommendations 12, 16 and 70 as submitted by SIPO in May 2019 as part of the second legislative review of the Regulation of Lobbying Act 2015. Section 18 of that Act outlines what are called "relevant contraventions" of the Act. SIPO has the power to investigate these relevant contraventions. A person who commits one of these relevant contraventions is guilty of an offence and liable on summary conviction to a class C fine or, on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both. This amendment would have inserted three new subsections with regard to relevant contraventions. The other amendment adds three additional actions to what qualifies as a relevant contravention and can be investigated and sanctioned by the commission.

As these two amendments are linked I thought it best to explain them together but the most important of these is a failure of former Ministers, Ministers of State, special advisers and senior civil servants to comply with the cooling-off period. It makes a breach of section 22 a relevant contravention under the Act and gives SIPO the power to investigate and sanction former Ministers, Ministers of State, special advisers and senior civil servants who fail to comply with the cooling-off period. This has been ruled out order and I do not believe it should have been. I appreciate that, as the Minister said, it is not a decision for him. However, this amendment should not have been ruled out, arguably even more so than the previous one, because it was based on direct recommendations by SIPO. It is almost word for word what the commission told us to do. SIPO did not tell us to give it additional powers and additional resources to carry them out. As it seems the commission was more than capable of doing so within its existing budget, the idea this creates an additional charge on the taxpayer is fanciful. As I said, I appreciate it was not the Minister who ruled this out but it is very unfortunate this has been done because we had worked so well on this Bill.

Deputy Michael McGrath

We will come to the issue of the nature of the sanctions, that is, whether they are administrative or criminal, in a moment. I note two of the Deputy's amendments have been ruled out in the context of section 9. In essence, my position on amendment No. 7 is it proposing to impose obligations on designated public officials. We are all practising politicians and are contacted many times a day by different means. For an onus to be put on us to in some way filter or assess who we should or should not be engaging with is impractical and not workable. The onus should be on the person doing the lobbying to make the returns and ensure they are fully transparent and in full compliance with the Act. It would make our job impossible if every time there is a meeting request we have to go checking whether the person who wants to meet us is in full compliance with the Act, is registered and so on. Our job is complex and busy enough without imposing those obligations on people who are elected. The obligation should be on those who are doing the lobbying.

Question put and agreed to.

SECTION 10

Question proposed: "That section 10 stand part of the Bill."

Chairman

I understand Deputy Mairéad Farrell is opposing this section.

Deputy Mairéad Farrell

That was in the context of all my other amendments not being ruled out of order. I am not opposing it now because it would not make sense any more.

Question put and agreed to.

NEW SECTION

Chairman

Amendment Nos. 9 and 13 are related and may be discussed together.

Deputy Michael McGrath

I move amendment No. 9:

In page 6, between lines 20 and 21 to insert the following:

“11. Section 21 of the Principal Act is amended by the substitution of the following subsection for subsection (3):

“(3) The fixed payment notice may be served on the person:

(a) where the Commission has been provided with the person’s email address, by sending it to the person by electronic means to that email address, provided that a record that the email has been sent to the person is made for the sender by the email system used;

(b) by delivering it to the person;

(c) by sending it by registered post or by any other form of recorded delivery service to—

(i) in the case of an individual, the address at which the individual ordinarily resides or any other address provided by the individual for the purposes of this section,

(ii) in the case of a company, its registered office, or

(iii) in the case of any other body corporate or unincorporated body, its principal office or place of business.”.”.

These amendments relate to the electronic service of notices. Amendment No. 9 would amend section 21 of the principal Act so the section clearly provides SIPO can serve fixed payment notices, FPNs, for the late filing of lobbying returns electronically, which the commission has done ever since the relevant provisions of the principal Act came into force in January 2017.

I am proposing amendment No. 13 to bring this provision governing the service of notices, etc., relating to the administrative sanctions regime into line with similar provisions in other legislation currently in force. In addition, the amendment will ensure SIPO is able to prove service if a case should ever arise where a recipient seeks to claim the email has not been received. In effect, this is to provide further legal underpinning of a practice the commission already implements, namely, electronically serving these FPNs.

Amendment agreed to.

Section 11 deleted.

SECTION 12

Chairman

Amendment No. 10 is out of order.

Amendment No. 10 not moved.

Chairman

Amendment Nos. 11 and 12 are related and may be discussed together.

Deputy Michael McGrath

I move amendment No. 11:

In page 7, line 14, to delete “14 days” and substitute “21 days”.

Both amendments refer to the timeline for SIPO's consideration of applications by former relevant designated public officials to waive the cooling-off period under section 22 of the principal Act. Amendment No. 11 extends the time period allowed for SIPO to make its decision from 14 days to 21 days. Amendment No. 12 permits the period for consideration of the waiver application to be extended by a maximum of a further seven days where, for whatever reason, SIPO is not in a position to provide a decision to the applicant within 21 days. These two amendments do not impact the overall maximum period during which applications must be decided upon, which remains 28 days.

These amendments reflect a more realistic and practical approach to the decision-making process applying to section 22 applications and should ensure a minimum of extensions will be necessitated by SIPO to reach decisions on applications received.

Amendment agreed to.

Deputy Michael McGrath

I move amendment No. 12:

In page 7, line 20, to delete “14 days” and substitute “7 days”.

Amendment agreed to.

Question proposed: "That section 12, as amended, stand part of the Bill."

Deputy Mairéad Farrell

May I speak to the section?

Chairman

Yes.

Deputy Mairéad Farrell

We have been through this but again, my amendment has been ruled out of order, presumably on the basis it creates additional duties for SIPO and hence an additional charge to the taxpayer. I have been quite clear about disagreeing with that. It is worth pointing out again these were additional powers requested by SIPO and worth highlighting that it never said it would not be able to take on anything additional. SIPO has asked for these amendments. I have made myself clear about my amendments being ruled out, but for the avoidance of doubt, my opposition to sections of the Bill was on the basis that my other amendments would be passed. As they have been ruled out I will not be opposing those other sections.

Question put and agreed to.

Sections 13 to 18, inclusive, agreed to.

SECTION 19

Deputy Michael McGrath

I move amendment No. 13:

In page 13, line 37, after “address” to insert the following:

“, provided that a record that the email has been sent to the person is made for the sender by the email system used”.

Amendment agreed to.

Section 19, as amended, agreed to.

Section 20 agreed to.

NEW SECTION

Deputy Michael McGrath

I move amendment No. 14:

In page 14, between lines 11 and 12, to insert the following:

“Amendment of section 25 of Principal Act

21. Section 25 of the Principal Act is amended—

(a) in subsection (2)—

(i) in paragraph (d), by the substitution of “in that year,” for “in that year, and”,

(ii) in paragraph (e), by the substitution of “in that year,” for “in that year.”, and

(iii) by the insertion of the following paragraphs after paragraph (e):

“(f) any decisions made, or sanctions imposed, by the Commission under section 22A in that year,

(g) any appeals taken under section 22D in that year, and

(h) any applications for confirmation of a decision to impose a major sanction made under section 22E in that year.”,

and

(b) by the insertion of the following subsection after subsection (2):

“(3) Any information referred to in paragraph (f), (g) or (h) of subsection (2) shall not be included in the report referred to in subsection (1)—

(a) in a case where a decision has been made to impose a major sanction—

(i) where an appeal has been brought, until the decision the subject of the appeal is confirmed by the Court under section 22D, or

(ii) where no appeal has been brought, until the decision is confirmed by the Court under section 22E,

and

(b) in a case where a decision has been made to impose a minor sanction—

(i) where an appeal has been brought, until the decision the subject of the appeal is confirmed by the Court under section 22D, or

(ii) where the period for bringing an appeal has expired and no appeal has been brought, until the expiry of that period.”.”.

I am proposing this amendment as significant changes are to be made principal Act with the introduction of the administrative sanctions regime for breach of relevant contraventions regarding failure to apply for a waiver of the cooling-off period under section 22, and the taking of any action by a person that has, as its intended purpose, the avoidance or circumvention of the person's obligations under sections 8 (1) or 12 (1) of the principal Act, the anti-avoidance clause.

Consequently, I have decided that it would be prudent to amend section 25 of the principal Act to provide that the SIPO's lobbying annual report must include any decisions on relevant contraventions and the imposition of administrative sanctions made in the year to which the report relates. I am of the view that it would also be beneficial to include provisions obliging SIPO to detail in its lobbying annual report information on any appeals taken, through section 22D, and confirmation applications made, through section 22E, to be inserted into the principal Act by this amending Bill.

Finally, I propose the insertion of the new text of section 25(3), as contained in this amendment, based on advice received from the Attorney General's office to ensure that any decisions, appeals, etc., are not reported on until the various relevant processes have reached their final possible outcome.

Amendment agreed to.

Section 21 agreed to.

Sections 22 and 23 agreed to.

Title agreed to.

Bill reported with amendments.

Deputy Jim O'Callaghan

I thank the Minister and his officials for coming before the committee. On behalf of the committee we hope to see the Minister of State back before the committee in a new and elevated position in the new year.

Deputy Mairéad Farrell

I also thank the Minister and his officials for the great engagement that has always been there on this Bill, and, indeed, on other Bills. If things change in the next ten days, to be exact, I hope that we will see the Minister in front of the committee again, and I am sure that we will continue to work very well together. I wish him all the best in the future. I hope that people who have thoughts of breaching any lobbying legislation will think again.

Chairman

I thank all the committee members very much and I thank the Minister-----

Deputy Michael McGrath

I thank the Chairman, the committee staff and all the members for facilitating us during the Committee Stage consideration of the Bill. I look forward to the Report and Final Stages. It is important legislation, which is borne out of the experience we have had of operating the system. This Bill significantly strengthens the system we have for the regulation of lobbying in Ireland and I look forward to its passage and implementation. I also thank members for their kind words.

Deputy Bernard J. Durkan

I wish to be associated with those remarks. The Minister and his officials have always been ready and available to come before the committee and to give all of the information possible to help it to do its work. Hopefully, the committee, in response has been helpful to the Ministry.