Guidance note regarding Regulation of Lobbying and candidates at elections
The Standards in Public Office Commission has a received a number of queries regarding communications made to election candidates, and whether they are regarded as lobbying activities.
What is a lobbying activity (“relevant communication")?
The Regulation of Lobbying Act (the Act) refers to a lobbying activity as a “relevant communication”. A relevant communication is a communication that
- May be written or oral
- Is made personally (directly or indirectly)
- Is made by a person who is within scope of the Act
- Is made to a DPO
- Relates to a relevant matter
- Is not an “excepted” (exempt) communication.
A relevant communication can be a formal or informal communication or take place in a formal or informal setting (e.g. casual encounters, social gatherings, or even social media) and can also be made directly or indirectly to a DPO. It is also important to note that if a relevant communication is made, it is a lobbying activity irrespective of who initiated the communication.
The “Three Step Test”
The Commission has published a document “The Three Step Test”. This provides details of the persons who are within scope of the Act, the DPOs prescribed under the Act and what constitutes a relevant matter.
"Exempt Communications”
Section 5(5) of the Act provides for a number of "excepted” (exempt) communications which are not regarded as lobbying. The exempt communications below are most relevant in relation to candidates at elections.
An individual’s private affairs
Section 5(5)(a) of the Act provides that communications by or on behalf of an individual relating to his or her private affairs (e.g. social welfare entitlement, local authority housing etc.) are exempt unless the communications relate to the development or zoning of any land which is not the person's principal private residence. In general, therefore, communications made by an individual regarding his/her private affairs are not regarded as lobbying.
Communications by a person in his/her capacity as a DPO
Section 5(5)(j) of the Act provides that a communication by a DPO in his/her capacity as a DPO is an exempt communication. A communication made by a Minister, Minister of State, TD, Senator, MEP or Councillor in his/her capacity as a DPO is not regarded as a lobbying activity. It should be noted that at elections Ministers, Ministers of State, Senators, MEPs and Councillors continue in office and remain as DPOs. At a Dáil election TDs (who are not Ministers / Ministers of State) cease to be TDs once the Dáil is dissolved and therefore, cease to be DPOs.
Communications with candidates who are DPOs
Where a person, who is within scope of the Act, communicates with a candidate who is a DPO, concerning a relevant matter, the person is carrying on a lobbying activity. The person will need to register and submit a return of the lobbying activities (“a return”).
Communications by candidates who are DPOs
Where a candidate is a DPO and is communicating with another DPO in his/her capacity as a DPO, the exemption at section 5(5)(j) of the Act (above) applies and the communication is not regarded as a lobbying activity.
Communications by candidates who are not DPOs
Where a candidate who is not a DPO (or has ceased to be a DPO) is communicating with another DPO regarding a relevant matter, the exception at section 5(5)(j) of the Act will not apply. The following guidance, therefore, should be taken into account:
Communicating with the party for the purposes of developing party policy or responses
The Commission has published an FAQ on the matter of communications between a political party and its elected representatives. This details that where a party communicates with its DPOs in their capacity as members of the party and/or their position as party spokespersons, it is not regarded as a lobbying activity. Section 5.5 (p) provides that communications by a political party to its members who are designated public officials and which are made exclusively as members of the political party concerned are exempt under the Act.
Also, a candidate communicating with party DPOs for the purpose of establishing the party policy/programme is not regarded as carrying on a lobbying activity.
Similarly, a candidate who is using contacts with constituents to provide general feedback to the party or with a view to developing a party policy or a response to a particular constituency issue, and who is not raising a particular person’s issue with a DPO with a view to furthering that person’s interests, is not regarded as carrying on a lobbying activity.
Communicating with a DPO regarding the interests of a person
If a candidate is asked by a person(s) (or agrees with a person(s)) to communicate with a DPO concerning a “relevant matter” with a view to furthering a person(s)’ interests or resolving an issue of concern to a person(s), then the communication may be a lobbying activity. As stated above, communications on behalf of individuals which relate to their private affairs are not lobbying activities. A communications regarding the zoning or development of land which is not a person’s principal private residence is lobbying.
A candidate communicating on a relevant matter on behalf of a person(s)
Where a candidate is communicating with a DPO on behalf of a person regarding a relevant matter (including the zoning or development of land), and the communication meets the definition of a lobbying activity, then the person is regarded as having carried out an indirect lobbying activity. The person must register and submit a return. The candidate should be included on the return as the individual who had primary responsibility for carrying on the lobbying activities.
Candidates should make constituents aware of the requirement to register and submit a return if being asked to, or offering to, communicate with a DPO on a person's behalf in relation to a relevant matter. The person should be referred to the lobbying.ie website and/or the Lobbying Regulation Unit for further information.
Summary:
- A candidate who is raising general issues with the party’s DPOs with a view to shaping the party’s programme or policy is not lobbying.
- A person within scope of the Act who communicates with a candidate who is a DPO, concerning a relevant matter, is carrying on a lobbying activity.
- The exemptions at section 5(5) of the Act relating to DPOs do not apply if the candidate is not a DPO (or ceases to be a DPO at an election).
- Most communications on behalf of individuals concerning their private affairs will be exempt unless they concern the zoning or development of land which is not the individual’s principal private residence.
- Where a candidate who is not (or no longer) a DPO communicates with a DPO on behalf of a person who is within scope of the Act, and the communication concerns a relevant matter (including the zoning or development of land), then the person will be regarded as having carried out an indirect lobbying activity with the DPO.
- The person will need to register and submit a return. The candidate should be included on the return as the individual who had primary responsibility for carrying on the lobbying activities on behalf of the person.
- Candidates should make constituents aware of the possible requirement to register and submit a return if being asked to, or offering to, communicate with a DPO on a person's behalf in relation to a relevant matter.
- The person should be referred to lobbying.ie and/or to the Lobbying Regulation Unit for further information.
Further information
Candidates may also wish to have regard to the Commission’s guidance material below:
Guidelines for people carrying on lobbying activities.
Guidelines on lobbying in relation to the development or zoning of land.