Regulating Lobbying: How is the Act working? Sherry Perreault, Head of Ethics and Lobbying Regulation, SIPO

9 January 2018

As the deadline for submitting returns of lobbying activity to Lobbying.ie approached on 21st January (for the relevant period - 1 September 2017 - 31 December 2017), Sherry Perreault, Head of Ethics and Lobbying Regulation, SIPO talks about how the system has progressed in the two years since the Act commenced and future developments.

The Regulation of Lobbying Act commenced in September 2015, and with it, the requirement for those lobbying public officials to register and submit returns of their lobbying activities.
 
18,000 Returns
In the two years since the Act commenced, nearly 18,000 returns have been published on the system. These returns show the vast array of subjects that people lobby about – everything from health care funding to industrial regulation, road traffic laws, zoning matters and support for sport. It is clear that a lot of conversations are happening around the country – and for the first time, the public can get a look in at who is lobbying whom, and about what.
 
1,600 Registrants
And just who is doing all this lobbying? In fact, a broad cross-section of Irish society is represented on the Register, with more than 1,600 registrants coming from all key economic sectors. Registrants include professional associations and representative bodies, trade unions and charities, multi-national enterprises and local business owners, medical and legal professionals, individuals lobbying about zoning, and of course third parties lobbying on behalf of clients – including many of PRII members. These statistics are very positive, and demonstrate the success and breadth of the Commission’s extensive outreach campaign.
 
The focus in the first couple of years of the Act has been on increasing knowledge and awareness of the Act and its obligations, and putting in place all the necessary procedures and tools to support compliance. As well, the commencement of the enforcement provisions early in 2017 has served to provide the Commission with additional tools to administer and enforce the Act. However, more remains to be done, and this is reflected in our priorities for the coming year.
 
Code of Conduct
First, the Act provides that the Commission may publish a Code of Conduct for persons carrying on lobbying activities, “with a view to promoting high professional standards and good practice”. We will shortly be launching a consultative process to develop a Code of Conduct with a view to completing and publishing it before the end of the year. We will be inviting all members of our Advisory Group on the Regulation of Lobbying, including PRII, to participate in this process and to make a submission. 
 
 
Regional Outreach
Second, we have noted that the number of Irish registrants outside Dublin is lower than expected, and local authority matters may not be captured on the Register to the same degree that national matters are. Outreach to regions outside Dublin and to those lobbying at a local level will help support greater awareness and compliance.
 
Quality Checks and Feedback
Third, the quality of information contained in returns is steadily improving, but it is clear that not all registrants have a common understanding of how to complete their returns. We have implemented a system of regular quality checks and feedback. This will further improve compliance and the quality of information on the register, as will continuing to enhance our information tools.
 
Prosecution
Fourth, with the commencement of the Act’s enforcement provisions at the beginning of 2017, the Commission now has the authority to investigate and prosecute non-compliance, and levy fixed payment fines for late filings. Taken in concert with a continued emphasis on education and outreach, the Commission now has a broad range of tools to ensure compliance with the Act. We will continue to follow up where we have reason to believe a contravention of the Act has occurred.
 
Review in 2019
Fifth and finally, while the Act itself is generally working well, we have identified a number of areas where the Act might be strengthened or clarified. The first legislative review of the Act, concluded earlier this year, did not result in any changes to the legislation, despite the Commission’s extensive submission to the review. The next review is scheduled to commence in 2019, providing a new opportunity to refine and enhance the Act.
 
The commencement of the Regulation of Lobbying Act marked an important milestone in the quest for transparency in Irish public life. In the weeks and months since, the Act has become firmly established and the Register a useful tool in ensuring transparency about public decision making processes. In pursuing our priorities in the coming months, we will continue to support the Act’s effective implementation.
 
For more information about the Regulation of Lobbying Act, including instructional videos and sample returns, visit www.lobbying.ie.
 
Keep in mind the next deadline is 21 January 2018, for lobbying activities that took place between 1 September and 31 December 2017. 
 
Frequently Asked Questions

Do Designated Public Officials have obligations under the Act?

The onus is on the lobbyist to register and submit returns of the lobbying activity. This is practical since the lobbyist is aware of whether and when they have made the attempt to lobby – the DPO is not always so (particularly in the case of indirect lobbying). Moreover, DPOs are generally subject to a range of other measures designed to enhance transparency, such as the Freedom of Information Act. We have, however, identified a number of best practices for DPOs so that they might support effective compliance; these are available on the lobbying.ie website.

If I lobby on behalf of a client, do I register or does the client?

Where a third party makes, manages or directs the making of relevant communications on behalf of a client in return for payment, he or she must register and submit a return of lobbying activities, and identify the client in the return. This makes transparent the involvement of the professional in making, managing or directing the communication.

Sometimes both the hired professional and the client undertake lobbying activities. Where they are the same activities, the professional should submit the return, identifying the client. Where the client carries out additional lobbying activities independent of their hired representative, both the client and the third party should submit returns. In such circumstances the client submits a return in respect of those lobbying activities which are additional and separate to those carried out on the client’s behalf by the professional lobbyist.

If a hired professional advises a client regarding the client’s lobbying activities, but does not make, manage or direct the making of the relevant communication, then in that instance it is only the client who must register and submit a return.

Does the Act apply to communications that take place outside of Ireland?

A person or organisation lobbying is required to register and submit returns of lobbying activity. The Act makes no distinctions regarding where the communication takes place. Determining whether a communication falls outside of jurisdiction is not based solely on whether it physically takes place outside of the country. Each case will have to be reviewed based on its own set of facts to determine in what circumstances a communication would fall within or outside of jurisdiction, and whether and how the Act may apply. It is recognised that there may be difficulties with extra-territorial enforcement of the Act. All those lobbying Irish Designated Public Officials outside of the State are encouraged to comply with the spirit of the legislation to ensure transparency.

What are the consequences of non-compliance?

The Act provides for investigation and prosecution of non-compliance. Penalties range from a €200 fixed payment for failure to submit a return by the deadline, to a Class C fine (€2,500) for a summary conviction, up to more severe financial penalties or even imprisonment if convicted on indictment.

Where there is reason to believe a contravention has occurred, the Act provides for investigation. Some have called for the Commission to have the authority to name anyone fined or where an investigation has been completed. While the Act does not provide for that, any prosecution in the courts would be a public process. It is important to note that while the Act provides for enforcement mechanisms, our emphasis is on seeking to ensure compliance.

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