5.1 Summary of Comments received in relation to Code of Conduct for persons carrying on lobbying activities.

5.1 General Comments about the draft code

The following general comments were received in relation to the draft Code of Conduct

1) The Code should be mandatory. As the code is not mandatory and there is no obligation to comply, references to “should” in the Code might be replaced with “must”.

2) Unlawful and unethical behaviours should be explicitly prohibited in the Code. The Code should also refer to lobbyists and organisations being accountable for their actions in trying to effect change.

3) The language used is not sufficiently explicit and lends itself to “wide interpretation”. The Code should be written in Plain English, or accompanied by a Plain English explanatory note. This would greatly enhance its efficacy.

4) A review clause should be included in the Code to allow for review and updating of the Code.

5) The five principles of lobbying set out in Transparency International’s guide to ethical lobbying (legitimacy, transparency, consistency, accountability and opportunity) should be included in the Code.

6) Aside from complying with the provisions of the Act (in principle 7A of the Code) there is no requirement to maintain consistency with an organisation’s ethos, with any governing body, representative body or membership body to which they belong.

7) Providing examples of professional work that qualifies as lobbying might be useful for persons who might not regard themselves as a lobbyist. The Code should provide examples of acceptable and unacceptable behaviour. The Code might be complemented by a toolkit, an online forum or a FAQ to “operationalize it and provide concrete examples.” The Code might include some “useful reading and references” for persons carrying on lobbying activities including the Ethics Acts, Transparency Code and GDPR information on lobbying.ie.

8) The code should be mindful of existing obligations on the charity sector and the scope of a forthcoming Governance Code to be issued by the Charities regulator. The Code should “note the distinction”, “differentiate” or “make distinctions” between different types of lobbyists.

9) The reference in the preamble to the Code that it might apply to all communications with persons in public office could create uncertainty with regard to what requires formal reporting.

10) The Code should include a requirement to comply with all applicable laws, regulations and rules i.e. data protection law, or anti-bribery and anti-corruption legislation. It should also include a requirement to avoid conflicts of interest or to disclose any such conflict.

11) The Code should recognise and make particular reference to the fact that some lobbyists have exceptional or preferential access by virtue of their membership of expert and advisory groups convened by the public sector and should provide for moderating how these activities occur and their representatives act.

The Commission’s response to the above comments and suggestions is as follows:

In relation to items 1 and 2 above the Act does not provide for a mandatory Code of Conduct. The Code is not, therefore, enforceable. The code is a principles based code rather than a rules based. It sets out how persons should behave ethically when carrying on lobbying activities. It is not the proper mechanism to prohibit unlawful lobbying activities. The Act provides for offences and penalties for those who contravene the Act.
In relation to item 3 the Commission is satisfied that the Code is written in plain English. It does not consider that a Plain English explanatory note is necessary.
In relation to item 4 the Commission agrees that the Code should be subject to regular review and has included a reference that the Code will be reviewed in line with the statutory reviews of the Act provided for in section 2 of the Act.
In relation to item 5 the Commission is satisfied that the principles used are appropriate and relevant to this Code. It notes that some of the principles set out in Transparency International’s guide are broadly reflected in the Code.
In relation to item 6 the Commission does not consider that such a requirement is appropriate for this Code of Conduct. It is a matter for the organisation and/or its governing, representative or membership body to ensure that the organisation is behaving consistently with any relevant ethos or corporate standard.
In relation to item 7 the Commission considers that such examples are more appropriate for inclusion in its guidelines and/or as part of its communications and outreach activities. The Commission already has a number of guidelines, guidance documents and FAQs on the requirements of the Act. The Commission anticipates that further guidance or FAQs on compliance with the Code may develop over time. The Commission has included relevant reference material in the Preamble to the Code.
In relation to item 8 the Commission is aware that there are different types of lobbyists. The Act does not distinguish between different types of lobbyists or the purpose of their lobbying activities and the Code should not deviate from the Act in this regard. The Commission has noted in the introduction to the Code that the Act applies to a wide and differing range of lobbying activities including persons who might not ordinarily regard themselves as lobbying. The Code is a principles based code and is intended to be applicable to any person carrying on lobbying activities (as defined in the Act). The Commission considers that a principles based code should fit the broad scope of persons to whom the Act may apply and that this is preferable to having different codes for different categories of lobbyist.
In relation to item 9 the Commission does not consider that the reference in the preamble will cause confusion. The Act sets out the formal reporting requirements in relation to relevant communications with Designated Public Officials (DPOs). The Code suggests a best practice approach which should be used when communicating with all public officials and not just those which are DPOs under the Act.
In relation to item 10, the Commission considers that the Code should include a reference to the fact that the Code does not circumvent, supersede or replace any requirement to comply with other legislation; professional codes of conduct or industry rules and regulations.
In relation to item 11, the Commission recognises the issue of exceptional or preferential access and has included a reference in Principle 1 of the Code on “exceptional access” and how this should not be misused. The Commission has also produced a guidance note for individuals and organisations who participate in Strategic Policy Committees, Task Forces, Advisory Groups etc. established by a public body and who may have obligations under the Act. The guidance note also refers to the issue of exceptional or preferential access.