knowledge 18 September 2015 |

Have you put lobbying management arrangements in place?

The Act’s key purpose is to allow publicly identification of those communicating with designated public officials (“DPOs”) on policy or legislative matters or decisions connected with the award of public funds. Organisations who have contact with public officials must be aware of the new regime and address compliance requirements arising.

Overview

Generally, lobbying involves communication with public officials aimed at influencing legislation, policy or administrative decisions. While lobbying enhances the quality of public debate and promotes informed decision-making, it can also involve perceptions of undue influence.  

The Act establishes of a public Register of Lobbying (the “Register”). This is online at lobbying.ie. The Act requires those carrying on “lobbying activities” to register and to return information periodically on their lobbying activities for inclusion in the Register. These requirements aim to make the role of lobbying in public decision-making processes more transparent.

Lobbying activities

“Lobbying activities” involve a person making a “relevant communication”. He or she must communicate personally, directly or indirectly, with a DPO about a “relevant matter” (eg public policy matter which might be the subject of legislation). However, if a person lobbies a non-DPO who decides to pass the information to a DPO, this will not be considered lobbying.  

DPOs include Ministers, members of either House of the Oireachtas, Irish MEPs, local authority members and other prescribed persons. It is expected that public service principal officers will be prescribed as DPOs by early 2016.  

Published guidance by the Lobbying Regulator, the Standards in Public Office Commission (“SIPO”) is that public bodies must publish a list of DPOs within their organisation on their individual organisation websites, and that public servants should be proactive in advising possible lobbyists that they or their colleagues are DPOs, even suggesting that email signatures could include a line such as “Designated Public Official under Regulation of Lobbying Act, 2015. See www.lobbying.ie.”

It is important to watch out for public servants identifying themselves as DPOs and to understand what this means.

A communication relates to a “relevant matter” if it relates to:

• changes or developments in a public policy or programme;
• legislative changes; or
• the award of any grant, financial support, agreement or authorisation involving public funds.

Exemptions

The Act does not apply to communications relating only to implementation of a policy, programme, enactment or award, or to purely technical communications. Responses to public consultations and clarifications of responses without raising new points should not constitute lobbying. More generally, requests, and responses to requests, for factual information, will not be lobbying.  

With the exception of relevant communications relating to land development or rezoning, the Act does not cover communications by individuals regarding their private affairs, or by businesses with fewer than ten full-time employees.

In-scope activity

Relevant communications made by employers with over ten full-time employees are in scope, provided the communications are on the employer’s behalf. The Act also applies to communications made by a third party (eg professional lobbyist) on behalf of such an employer in return for payment. It also covers communications made by or on behalf of a body which has one or more fulltime employees (eg trade association or representative body) which exists primarily:

• to represent members’ interests, and relevant communications are made on behalf of any of its members; or
• to take up particular issues, and relevant communications are made in furtherance of any of those issues.

It appears that where member firms participate in a delegation led by a representative body, individual members will not need individually to return lobbying activity undertaken, provided the representative body returns the activity.

Post-termination employment

The Act restricts lobbying activities by certain public officials for one year following the termination of their public office or employment. It specifically prohibits a person who was a Minister, special adviser or prescribed public servant from carrying on lobbying activities involving the public service body in which the person held office or was employed, or involving a designated public official connected with that public service body. However, it is possible to apply to SIPO to have this prohibition lifted.

Action needed: registration and disclosure

Those carrying on lobbying activities must register on lobbying.ie and make returns to SIPO in respect of lobbying activity from 1 September 2015. The first returns are due by 21 January 2016, covering the period September-December 2015. Thereafter, returns are due at the end of April, August and December every year. As the Register is operated online, entries can be made in draft on an ongoing basis to track activities as they take place but these will not be finally entered until the return is submitted at the end of the period.  

Every return must include information regarding:

• the identity of the DPO to whom the relevant communication was made; where several DPOs attend the same event, they must all be included in returns;
• the subject-matter and intended results of the relevant communication; if a firm lobbies on multiple issues in a single meeting, the return must detail each issue;
• the type and extent of the lobbying activities carried on; and
• the name of the person with primary responsibility for the lobbying activities.

Professional lobbyists’ returns must include the client’s name, address and business or main activities.  

Applications for registration as a lobbyist and information submitted in returns will be published in the Register. However, the person making the application or return may apply for delayed publication where any information made available could (i) have a serious adverse effect on the State’s financial interests, the national economy or business interests; (ii) give rise to a material financial loss to the person to whom the information relates or (iii) seriously prejudice that person’s competitive position or the outcome of negotiations that person is conducting.

Action needed: lobbying management

The Act does not focus on professional lobbyists, but applies to everyone carrying out lobbying, most of whom are not primarily lobbyists. Consequently, every organisation should understand its contacts with public officials to determine the nature and extent of that contact; the identity of those making contact; and the public officials involved, to assess whether their contacts are likely to fall within the remit of lobbying.  

Organisations who have contacts with DPOs should establish compliance measures to ensure that their personnel are aware of the consequences of “lobbying activities”, and it makes sense to closely manage channels of communication between the organisation and any DPOs to confine these to a managed set of contact points including the organisation’s authorised personnel. Organisations should keep records of communications on their behalf by employees or agents to public officials (including those data which would require to be registered) and consider whether “relevant communications”, which involve registration and disclosure obligations, are occurring.  

Businesses retaining professional lobbyists should carry out appropriate due diligence. Association with professional lobbyists will become public knowledge and controversy surrounding a lobbyist could cause reputational damage. Businesses should explicitly agree with professional lobbyists the subject-matter and intended results of lobbying, the identity of DPOs to be lobbied and the nature and extent of lobbying activities, as this information will all be put in the public domain. Fundamentally, businesses engaging in lobbying, directly or through professional lobbyists, should ensure they are prepared to be publicly associated with the position expressed in any lobbying activity; and that this is compatible with the interests of their stakeholders and their own corporate governance and corporate responsibility principles.  

While aspects of the Act and how it will operate are uncertain as of now, this is unsurprising as it is difficult to strike a perfect balance between transparency and regulation and greater clarity will emerge as the first returns go live. There is some comfort in the expectation that the regulatory approach in the early phase will be to encourage compliance rather than to engage in enforcement activity against those who are perceived to have not complied, but organisations should not take chances on an excessively benign enforcement regime remaining in place indefinitely.