Review and Amendment of Lobbying Law (IE0051)

Objective To look at how the existing legislative foundation could be enhanced most effectively and efficiently; strengthening weakness which have been identified.

Status Quo The Regulation of Lobbying Act 2015 (the Act) sets the framework to provide transparency to the public on "who is lobbying whom24 about what". By regulating lobbying activity through registration and reporting requirements, the aim is to strengthen public confidence in politics and in the business of government, to increase the accountability of decision makers and to subject public policy making, and those who seek to influence it, to greater openness, transparency and to the potential for appropriate independent scrutiny. In light of a specific event25, the Taoiseach (Irish Prime Minister) announced on 29th September 2020 that section 22 of the Regulation of Lobbying Act 2015 dealing with the cooling-off period for certain elected and public officials would be reviewed. Also, the opposition introduced two Private Members Bills:  Regulation of Lobbying (Post-Term Employment as Lobbyist) Bill 2020, introduced in the Dáil 4th November 2020 by the Labour Party.  Regulation of Lobbying (Amendment) Bill 2020, introduced in the Oireachtas (legislature) on the 19th November 2020 by the Sinn Féin Party. Second Stage of the Bill took place under Sinn Fein Private Members’ time on 24/25 November 2020. An amendment was agreed on the 24th November 2020 that the Bill would be deemed to be read a second time in 9 months’ time (24th August 2021) to allow consideration of the Standards in Public Office (SIPO) recommendations for the wider reform of lobbying, including the provisions of both Private Members Bills. In light of these events, the Minister for Public Expenditure and Reform requested a thorough and comprehensive review of the legislation. Note that the second statutory review of the operation of the Lobbying Act was published in January 2020. Under section 2 of the Lobbying Act, there is a requirement that the operation of the Act be reviewed every 3 years.

Ambition To undertake a wide review of how the existing legislative foundation could be enhanced most effectively and efficiently; strengthening weakness which have been identified.

Commitment description

What is the public problem that the commitment will address? To address the public concerns about the operation of the lobbying Act in relation to the operation of the cooling-off period for certain elected and public officials (section 22 of the Regulation of Lobbying Act 2015).

What is the commitment? To undertake a wide ranging review of the Regulation of Lobbying Act 2015 to assess the policy, legal and practical implications of a specific event and to undertake a wide review of how the existing legislative foundation could be further enhanced in terms of effectiveness, efficiency and to address any weaknesses that the process surfaces.

How will the commitment contribute to solving the public problem? The wide ranging review will encompass the operation of the cooling-off period for certain elected and public officials (section 22 of the Regulation of Lobbying Act 2015).

Describe what the intended impact of successful implementation will be? The wide ranging review will bring forward recommendations, which will then be brought to Government to draft the necessary amendments to the Regulation of Lobbying Act 2015 to commence the legislative process

Which Open Government value(s) does your commitment relate too? Value: Public Accountability and Transparency Theme: Anti-corruption

Why is (and describe how) this commitment is relevant to the Open Government value(s)? Communication, dialogue and engagement are central to a well-functioning democracy. Interest groups, representative bodies, industry and civil society organisations, NGOs and third party professional lobbyists all provide crucial input and feedback to the political and public administration systems. It is important that this activity is transparent and open to public scrutiny as part of the proper checks and balances which mitigate any attempt to seek to exert undue or improper influence on the conduct of policy formulation, development and decision making.

What United Nations Sustainable Development Goal26 does this commitment relate too27? . Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels Sub-goal 16.6: Develop effective, accountable and transparent institutions at all levels

Additional information (if known)

Commitment milestones Suggested next steps and milestones to guide implementation (Don’t forget to capture and detail any public facing element desired; e.g. stakeholder engagement) Who / What organisation (if known) When (if known) Additional info. Wide ranging review to involve:  An assessment of the current operation of key provisions of the Act;  An overview of lobbying regulation in other jurisdictions;  Consideration of options to address concerns raised and the policy, legal and practical implications of different responses;  and be informed by the concerns and points raised by Deputies in the House and at Committee hearings.DPER DPER Q1 – Q2 2021 Q2 2021 Q2 2021 Key stakeholder consultation, including:  Consultation with, and consideration of, the views of the Standards in Public Office Commission (SIPO);  Consultations with the Office of the Attorney General (AG). DPER / SIPO / AG Ongoing throughout the process  Complete a draft review of the Regulation of Lobbying Act and distil evidence based recommendations. DPER / Cabinet Mid Q2 2021  Seek Government approval (Memorandum to Government) to draft the heads of a bill to amend the Regulation of Lobbying Act in line with the review recommendations. (Circulate a draft memorandum in advance to obtain Departmental observations before formally submitting to Government) DPER / Cabinet / AG Mid Q2 2021  Draft Heads of a Bill (also called a General Scheme) in accordance with Government approval DPER / AG Q4 2021  Seek Government approval to the General Scheme and to priority drafting by the AGs of the Regulation of Lobbying (Amendment) Bill DPER/ Cabinet Early Q1 2022  Send General Scheme to the Oireachtas Committee on Finance, Public Expenditure and Reform and Taoiseach for prelegislative scrutiny DPER/ Oireachtas (legislature) Q1 2022  Request Attorney General’s Office to commence priority drafting of the Regulation of Lobbying (Amendment) Bill on the basis of the General Scheme DPER/ AG Q1 2022  Seek Government approval to the final text of the Regulation of Lobbying (Amendment) Bill DPER/ Cabinet Q3 2022  Introduction of the Regulation of Lobbying (Amendment) Bill to the Oireachtas and commencement of process of the Bill through all stages in the Oireachtas prior to enactment DPER/ Oireachtas (legislature) Q3 2022

Action Plan Review

Commitment 3. Review of the Operation of the Regulation of Lobbying Act 2015

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

For a complete description of the commitment, see Commitment 3 in Ireland’s 2021–2023 action plan.

Context and objectives:

This commitment plans to amend the Regulation of Lobbying Act, passed in 2015 through Ireland’s first action plan. The Act requires individuals and organizations to disclose any lobbying activity on a public register. This includes meetings with high-level public officials, as well as efforts to influence policy through letters, emails, or tweets. [1] It also stipulates a cooling-off period, during which public officials are restricted from engaging in lobbying for a year after they leave office. [2] Under the commitment, the amendment would close certain limitations in the Regulation of Lobbying Act, including on the enforceability of the cooling-off period.

The amendment draws on recommendations of the third review of the Act. It should be noted that the commitment’s milestones related to the review were completed prior to the action plan. In September 2020, the Taoiseach (prime minister) announced a review of Section 22 of the act, regarding officials’ cooling-off period. The review was widened in response to two Private Member Bills in the Dáil (lower house of Irish legislature) and was finished by early Summer 2021. [3] According to the Department of Public Expenditure and Reform Government Reform Unit, no further formal consultations with civil society and the public are planned under this commitment. [4]

The prior two statutory reviews of the Act did not produce amendments. The second review, published in 2020, received 27 submissions from academics, business and farming representatives, interest groups, government departments, and public affairs organisations. [5] The Public Relations Institute of Ireland and the Standards in Public Office Commission expressed disappointment that the second review did not produce substantive changes. [6]

Potential for results: Substantial

The Regulation of Lobbying Act is considered a gold standard of lobbying transparency legislation, [7] but has some room for improvement. The cooling-off period is not denoted as a contravention, which limits enforceability. Although there is no evidence of widespread compliance issues, there have been some recent controversial cases of public officials moving to public relations firms or businesses (such as movement of the former Minister of State in the Department of Finance to a financial services group). [8] The 2020 National Integrity Index found that in a sample of 30 companies, 26 had not published rules or policies on the movement of staff from the public sector to companies or vice versa. [9] Beyond the cooling-off period, academics note that the Act doesn’t require registration of preparatory work or giving advice, which allows commercial and in-house lobbyists to avoid registering. It also does not require any disclosure of financial information on the register, for example the amount of money paid to lobbyists. [10] Additionally, the definition of lobbying excludes companies with fewer than ten employees, even if lobbying for high-value contracts. [11]

The most potentially impactful element of this proposed amendment would introduce a contravention covering failure to comply with the cooling-off period for elected and public officials, addressing the gap in enforceability. [12] The amendment also addresses a gap that allows groups of corporations to form interest groups that are not considered to be lobbying as long as they do not technically have employees.

Other features of the amendment offer technical changes to the Act. These include extending the period between statutory reviews from three to five years; extending the Act to include non-remunerated officeholders; exempting registration of communications made by political parties to their members who are designated public officials; improving operation of the lobbying register; and introducing a contravention on actions intended to avoid registration or submission of lobbying returns. [13]

Civil society stakeholders see this commitment as an opportunity to increase lobbying transparency. They feel this could improve the demarcation between business interests and public interests. It could also build trust in Ireland’s democracy, given that lobbying is an area where the wider public perceives a higher level of corruption. [14] Some suggest that stronger accountability could be introduced if, like other aspects of the Act, breaching the cooling-off period were to be a criminal offence (rather than the planned contravention). [15]

Opportunities, challenges, and recommendations during implementation

Lobbying transparency has been one of the most ambitious policy areas for other OGP members in Europe. [16] Including this initiative within the Programme for Government supports momentum toward passing the planned amendment. [17] However, if the amendment does not pass before December 2022, it could be slowed by a shift in the party holding office. [18] The IRM offers the following recommendations for this commitment’s implementation:

● Provide clear, regular updates on each legislative stage to ensure transparency and allow the public to engage as the amendment progresses. This could include raising awareness about the amendment and opportunities for engagement.

● Expand the Regulation of Lobbying Act definition beyond companies with more than ten employees to focus on types of activity or the scale of contract. This could more fully capture the lobbying landscape in Ireland to include individual consultants.

● Consult the experiences of reformers in Latvia, [19] Chile, [20] and Madrid, Spain [21] for lessons learned on leveraging the open government process to support lobbying reform. It may also be beneficial to consult the International Standards for Lobbying Regulation [22] and the Transparency International Recommendations on Lobbying for OGP Action Plans [23] for guidance on developing effective lobbying regulation.

● Encourage researchers to use lobbying data and report irregularities. This can contribute to verifying the accuracy of the data and to monitoring compliance with the law.