5.2 Comments about specific principles of the draft Code

Principle 1 – Demonstrating respect for public bodies

The following comments/suggestions were received in relation to Principle 1:

1) This principle should refer to demonstrating respect for the democratic process / democratic institutions.

2) Concerns were expressed about the proposal that persons carrying on lobbying activities should not expect preferential access or treatment. One organisation stated that it expects to receive preferential access and treatment “based on objective criteria commensurate with our unique democratic mandate and the scale and importance of the economic sector that we represent”. Another organisation did not agree on a blanket provision on expecting preferential access as there may be circumstances where a person facing barriers accessing policy makers could require “preferential access appropriate to their needs.”

3) There were concerns with the code attempting to regulate lobbying relationships with DPOs with whom persons may have frequent contact and may have developed good working relationships. It is not uncommon to develop a working relationship with a DPO and that this can help to progress an issue. A general restriction on preferential access could be used to “undermine long-established partnership-working processes”. Persons should not, however, abuse these relationships.

4) There were concerns that a general restriction on preferential access might provide a “shelter” for a policymaker to avoid a representation being made.

5) It was suggested that a person should not expect preferential access if they have previously been a colleague of the DPO or worked on the DPOs election campaign.

6) Should a strong working relationship or personal relationship exist between a lobbyist and a public official, then the onus should be on the public official to avoid a conflict of interest.

7) The reference to “working” in the last paragraph should be removed to allow for personal relationships to also apply.

The Commission’s response to the above comments and suggestions regarding principle 1 is as follows:

In relation to item 1, the Commission has included a reference to respect for the democratic process/democratic institutions.
Having regard to items 2 – 5 above the Commission has revised this principle to say that a person should not look for preferential access on the basis of the person’s identity or relationship with a DPO or body and should not seek to abuse or exploit such relationships.
In relation to item 6 it is important to note that the Code of Conduct is for persons carrying on lobbying activities and is not intended for public bodies or DPOs. DPOs have their own Code of Conduct which provides for conflicts of interests.
In relation to item 7 the Commission has amended the Code to take account of this suggestion.

Principle 2 – Acting with Honesty and Integrity

The following comments/suggestions were received in relation to Principle 2:

1) The vocabulary on ‘honesty and integrity’ should be strengthened to incorporate concepts of "fabrication or falsehood" or "deliberately misleading". The last sentence of the first paragraph might state that persons make their case without manipulating or presenting information in ways that is “knowingly understood as dishonest, fabricated and/or false”.

2) On the issue of presenting information accurately one organisation suggested that every argument has multiple sides and that no one could be expected to present every aspect of an issue.

3) The Code should be silent on the matter of exerting pressure on a DPO.

4) The use of subjective terms such as “undue pressure” and “inappropriate behaviour” could be open to wide interpretation. Such terms could be used by DPOs to “foreclose” lobbying. Following up on complaints of “undue pressure” or “inappropriate behaviour” could be challenging due to the subjectivity or “vagueness” of such terms.

The Commission’s response to the above comments and suggestions regarding principle 2 is as follows:

In relation to item 1, the Commission has included a reference to “misleading” in the last sentence of the first paragraph of this principle.
In relation to items 2 – 4 the Commission does not agree that the Code should be silent on exerting pressure on a DPO. Having taken the comments/suggestions at 2 - 4 into consideration the Commission has decided to include a reference that persons should not seek to obtain information or influence decisions dishonestly or by use of “improper means or influence”.

Principle 3 – Ensuring Accuracy of Information

The following comments/suggestions were received in relation to Principle 3:

1) Providing factual information is an “excepted” communication. The term “genuine representations” might better reflect the principle rather than “factual and accurate”.

2) The opening sentence should require lobbyists to ensure that information provided is accurate, factual and “legitimate”. Another suggestion was that there should be a requirement to provide factually correct, current and accurate information.

3) The emphasis should be on “wilfully” manipulating information. This might be reflected in this part of the Code.

4) The requirement to update information should be limited to where there has been a material change to relevant matters on which the person continues to actively lobby.

5) The Code should not place unreasonable requirements on lobbyists to validate research and evidence around information presented. This could create an unnecessary burden for organisations and lead to unintended consequences (not specified).

6) This principle might be used by DPOs to reject a lobbying encounter if they come to the conclusion that the information provided is inaccurate, out of date or incomplete.

7) Lobbyists should be expected to satisfy all relevant stakeholders of the accuracy of information they use to influence public policy. The Code should encourage lobbyists to publish (with their client’s consent) any information shared with public bodies or officials. The Register could facilitate this by providing a text field to allow lobbyists insert a link to the published information.

The Commission’s response to the above comments and suggestions regarding principle 3 is as follows:

In relation to items 1 – 3 above the Commission is aware that providing factual information is not in itself a lobbying activity. The Code, however, is for persons carrying out lobbying activities and the reference to providing factual information in this context means providing factual information in support of lobbying activities. The Commission is satisfied that the requirement to provide accurate and factual information meets the purpose of this principle.
In relation to item 4 above the Commission does not agree with the suggestion. It has, however, amended the reference in the principle to “information previously provided” and on which the public body or official may still be relying.
In relation to items 5 and 6 the Code is for person’s carrying on lobbying activities. It is fitting that there should be an onus on persons to provide accurate and factual information. Ensuring that information used in support of a lobbying activity is accurate and factual should not create an “unnecessary burden”. If a person is providing inaccurate, out of date or incomplete information in support of lobbying activities then a DPO should not be expected to disregard this behaviour.
In relation to item 7 while the Commission is satisfied to include a reference in the Code which encourages lobbyists to publish any research, statistics or other information used to support their lobbying activities, it is firmly of the view that the Register should not be the vehicle or repository for such information.

Principle 4 – Disclosure of Identity and Purpose of Lobbying Activities

The following comments/suggestions were received in relation to this Principle 4:

1) The last sentence of the first paragraph should also refer to “organisations”.

2) The third paragraph of this principle should refer to “direct and indirect” interests.

3) Principle 4 should be more closely linked to principle 5 on disclosure of interests. There needs to be greater emphasis on identifying those with commercial interests in policy decisions. Full disclosure of identity, purpose of lobbying and interests will make it easier for the public and those being lobbied to identify who is lobbying and for what purpose. This will address the issue of identifying those with commercial interests who are seeking to influence policy decisions.

The Commission’s response to the above comments and suggestions regarding principle 4 is as follows:

The Commission considers that the title of this principle would benefit from the inclusion of the words “to public bodies and officials”.
The Commission agrees that the last sentence of the first paragraph should also refer to “organisations”. It also considers that this sentence should refer to the “client’s interests in the matter”.
With regard to item 3 above the Commission considers that the reference to “interests” in paragraph 3 of the principle should be to “any personal interests” in the matter on which they are lobbying.

Principle 5 – Disclosure of Interests

The following comments/suggestions were received in relation to this principle:

1) A requirement to avoid conflicts of interest or disclose such conflicts should be included. The principle should also be broadened to incorporate concepts of “networks of pecuniary interests, direct or indirect”.

2) In certain areas where an organisation represents interests that conflicts with the particular policy area (public health for example) it must be highlighted. Principle 5 should be strengthened to provide information around lobbyist’s objectives, beneficiaries, funding sources and targets.

3) It may not be practicable to codify obligations regarding lobbyist-client relationship interests and confidentiality. Such provisions have been removed from other Codes of Conduct in order to focus on the lobbyist – public official relationship.

4) There may be difficulties with the wording used in the second paragraph of this principle.

5) Principle no 5 deals with two separate issues. The first paragraph concerns the disclosure of conflicts of interest or competing interests while the second paragraph relates to professional lobbyists or third party lobbyist misrepresenting their access to DPOs and public bodies. These principles should, therefore, be treated separately.

6) Disclosure of conflicts of interests or competing interests is an issue between the professional lobbyist and the client and are best provided for in professional Codes of Conduct.

7) The Code should not assume that representative bodies would have the capacity or insight to know the interests/conflict of interests of its membership bodies.

8) The first paragraph should say that a person can only represent competing or conflicting interests where the member is able to act for each of the clients with the same professionalism and duty of care and where reasonable efforts have been made to secure the clients’ consent.

9) More clarity or a definition of terms such as “professional body”, “family”, “business” and “social associations” used in paragraph 1 of the principle.

10) The protections envisaged by the second paragraph of principle 5 would be enhanced by including the words “recklessly” or “negligently”. This would ensure that lobbyists who ought to have known that their claims were misleading or exaggerated are not exonerated from consequences.

The Commission’s response to the above comments and suggestions regarding principle 5 is as follows:

Having reviewed the comments and suggestions received in relation to this principle the Commission is satisfied that the first paragraph of this principle is not appropriate for this Code of Conduct. In that regard, therefore, the first paragraph of this principle has been removed from the Code.
The second paragraph has been incorporated into principle 2 – Acting with Honesty & Integrity.

Principle 6 – Preserving Confidentiality

The following comments/suggestions were received in relation to this principle:

1) The first paragraph of this principle may be overly restrictive given that the intention of the Act is to shed more light on lobbying interactions. The principle should be developed further to make clearer the transparency obligations on those undertaking lobbying and to elaborate on the circumstances in which confidentiality obligations might arise.

2) The first paragraph of this principle should include the words “when that has been explicitly agreed between the two parties in advance”.

The Commission’s response to the above comments and suggestions regarding principle 6 is as follows:

The purpose of the Act is to provide transparency with regard to persons carrying on lobbying activities. The purpose of the Act is not the disclosure or publication of information held by public bodies or officials. Having regard to the comments received, the Commission has revised this principle to state that a person should only use and disclose any confidential information received from a public body as agreed with the public body and in the manner consistent with the purpose for which it was shared.

Principle 7 – Avoiding Improper Influence

The following comments/suggestions were received in relation to this principle:

1) Persons carrying out lobbying activities should be fully familiar with the most up to date information on lobbying, Transparency Code requirements and DPOs on the websites of organisations being lobbied.

2) Different Departments and public bodies may have their own guidelines on accepting gifts etc. The principle would suggest that a lobbyist should be aware of each and every set of guidelines, some of which may not always be easily accessible. The principle should refer specifically to the Civil Service Code of Standards and Behaviour.

3) The wording of this principle is vague and seems to place the responsibility to ensure there is not a breach of ethics legislation, codes of conduct etc. on the lobbyist and away from the DPO. The principle should be re-drafted to place the onus on both parties not to breach any law etc. or alternatively to prohibit bestowal of gifts or hospitality to public officials where there is a “registrable relationship”.

4) Responsibility for the behaviour of elected and public officials should not be devolved to the lobbyist. The onus should be on the elected or public official to determine whether a conflict of interest exists. A person carrying on lobbying activities should be required to "take reasonable steps" to inform themselves of DPO codes of conduct, guidelines etc.

5) There have been difficulties encountered in relation to using the term “avoiding improper influence”.

6) There should be restrictions on offering gifts, including hospitality. The code should make it clear that lobbyists should avoid the offer of any gifts or entertainment to officials they are lobbying irrespective of whether it causes a real or perceived conflict of interest.

7) The concept of improper influence should be extended to include “indirect / secondary preferment.

8) Persons carrying on lobbying activities should be prohibited from influencing DPOs other than providing evidence, information, arguments and “experiences” that support an intended outcome.

The Commission’s response to the above comments and suggestions regarding principle 7 is as follows:

Having considered the submissions received in relation to this principle the Commission is of the opinion that the principle should say that lobbyists should not make offers of gifts or hospitality and that lobbyists should have regard to appropriate Codes of Conduct for public officials. The Commission will also draw particular attention to this part of the Code of Conduct in revised guidelines for DPOs which it intends to publish in the near future.
In relation to comment 7 above, the Commission considers that use of the word “inducement” in the second paragraph captures indirect/secondary preferment.
In relation to comment 8 above, the Commission will incorporate this suggestion into a new paragraph 3 of the principle.

Principle 8A – Observing the provisions of the Regulation of Lobbying Act – Registrations and Returns

The following comments/suggestions were received in relation to this part of principle 8:

1) The code should provide for an individual to familiarise themselves with their organisation’s arrangements for recording and reporting lobbying activities.

2) The Commission recognise in the Code (or elsewhere) that it is appropriate for the head of a large organisation to appoint one or more responsible persons to supervise and control the organisation's lobbying activities.

3) The Code should require persons carrying on lobbying activities and heads of organisations to inform others of everyone's respective obligations under the Act and the Code.

The Commission’s response to the above comments and suggestions regarding principle 3 is as follows:

The Commission considers that the above suggestions are broadly captured in the principle as drafted. There are no amendments to principle 8A

Principle 8B - "Cooling-off Period”

The following comments/suggestions were received in relation to this part of principle 8:

1) The “legalistic language and tone” makes this principle more difficult to follow. The term “Restrictions on DPOs when lobbying post-employment” should be used instead of “cooling off periods”.

2) This principle should be re-drafted to place responsibility on former DPOs. (A suggested wording was provided.)

The Commission’s response to the above comments and suggestions regarding principle 8b is as follows:

In relation to comment 1 above, the Commission is satisfied that the language used best captures the requirements of section 22 of the Act. The Commission is also satisfied that most people will be familiar with what the term “cooling-off period” means.
In relation to comment 2 above (and the suggested wording provided), the provisions of section 22 of the Act already place a responsibility on DPOs to comply with the Act. The purpose of this principle is not to dilute that responsibility. The Code of Conduct is for persons carrying on lobbying activities and not DPOs. The purpose of including an observance of the cooling-off period as part of the Code is 1) to create awareness of the requirements of section 22 among lobbyists who may be prospective employers of relevant DPOs and 2) to foster a spirit of compliance by ensuring that persons seeking to employ a relevant DPO will be aware that the person is subject to a cooling-off period and will look to establish if the person has complied with his/her requirements.
The Commission will redraft the last paragraph of this principle to state that a person seeking to employ a relevant DPO should be aware of the provisions of section 22 and establish if the person has complied.

Principle 9 – Having regard for the Code of Conduct

There were no specific observations or comments in relation to this principle.