5.3 Comments/Suggestions to do with other issues regarding Regulation of Lobbying:

The Commission also received a number of other comments and suggestions which did not specifically relate to the draft Code of Conduct. The Commission has, however, set out below some of the other issues relating to Regulation of Lobbying on which comments and suggestions were made and it’s response to same.

Responsibilities of DPOs and public bodies

Comments/Suggestions received in relation to the responsibilities of DPOs and public bodies were as follows:

1) Public bodies should record all correspondence and communication relating to lobbying activities. There should be more emphasis on record keeping for both persons covered by the Act and those staff members not covered by the Act.

2) Guidance that DPOs should identify themselves as DPOs is not consistently observed. Identification of DPO status should be on business cards, email signature, website listing etc.

3) The DPO listing on public bodies’ websites may not always be up to date. Public bodies with DPOs should be required to maintain “public-facing records” of their DPOs. The Code should reference “frequent and timely” updating of public bodies’ DPO page on their websites.

4) There is a lack of awareness of the Act among elected officials (both national and local). DPOs have “ethical obligations” which should be reflected in the code. There should be continuous education with DPOs.

5) DPOs should have a responsibility to be familiar with the Code and the provisions of the Act.

6) There is a misuse by certain commercial state bodies of the excepted communication regarding “ordinary course of activities”. The Department of Public Expenditure and Reform should issue guidance on this “excepted communication” to all state agencies. The Commission should clarify this matter in the Code of Conduct.

7) Consideration should be given to placing some onus on DPOs to disclose instances where they may have initiated a lobbying activity with a public body.

8) There should be a responsibility on DPOs to disclose any relationship they may have with lobbyists and that misusing confidential information obtained from their position should not just be limited to the “cooling-off” period.

9) The text in the introduction to the Consultation Paper states that the Act aims to ensure that any interest in Irish society is represented fairly and transparently. DPOs in a particular government department are consistently refusing to meet with a particular organisation and this “violates” the spirit of the Act. Further education of DPOs, particularly those using the Act as a means to refuse engagement, is required.

10) The number or range of DPOs should not be increased.

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

In relation to items 1 and 2 above, the Commission has produced guidance for DPOs on the Regulation of Lobbying Act. The guidelines recommend that DPOs maintain good record-keeping habits and that they should be proactive in advising possible lobbyists when attending a meeting, participating in a conference call, etc., that they are a DPO. The guidelines also set out some best practices for DPOs and includes self-identifying as a DPO on e-mail’s, business cards etc..
In relation to item 3 above, it should be noted that section 6(4) of the Act requires public bodies to publish up to date details of their DPOs on their websites. The Commission is in regular contact with public bodies regarding the requirements of section 6(4) of the Act. Public bodies have been asked to nominate a member of staff with whom the Commission may liaise in relation to the body’s DPOs. Guidance and a template for maintaining the list of DPOs has already been provided to all public bodies with DPOs appointed.
In relation to items 4 and 5 above, 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 Codes of Conduct. The Civil Service Code of Standards and Behaviour for example sets out the ethical behaviour for Civil Servants while the Code of Conduct for Local Authority employees has been designed to promote the core values of honesty, impartiality, integrity and serving the common good. The Commission has produced guidance for DPOs on the Regulation of Lobbying Act. The guidance recommends that DPOs should be familiar with the provisions of the Act.
In relation to item 6 above the Code of Conduct is for persons carrying on lobbying activities and is not intended for public bodies or DPOs. It is not the appropriate mechanism, therefore, to address the misuse of an excepted communication. The Commission notes that a similar suggestion was made in the context of consultations on the first review of the Act carried out by the Department of Public Expenditure and Reform (Dept. PER). The report of the first review of the Act referred to the fact that the Commission was developing an FAQ on the matter. The Commission subsequently published Frequently Asked Questions document (No 23). While the Commission is not in a position to specify what might constitute the ordinary course of business of each public body it has provided some general examples of what might and might not be regarded as a communication made in the “ordinary course of business”. The Commission will, however, bring this matter again to the attention of the Dept. PER.
In relation to item 7 above Section 5(5)(j) of the Act specifically provides that communications made by a DPO in their capacity as a DPO is an excepted communication and is not a lobbying activity. If, however, the communication is made in some other capacity e.g. as a company director then the exemption would not apply and it could be regarded as a lobbying activity.
In relation to item 8 above the misuse of confidential information is already provided for in the Official Secrets Acts and in the Civil Service Code of Standards and Behaviour. The Civil Service Code of Standards and Behaviour and the Code of Conduct for Local Authority employees both deal with the issues of improper influence and conflicts of interests.
In relation to item 9 above. The purpose of the Act is not to prevent or inhibit lobbying activity. Public bodies should continue to actively facilitate and encourage such communications to the greatest extent possible. The Act has a number of checks and balances to ensure that it doesn’t have a “chilling” effect on lobbying activity. Public bodies should not be using the Act as a reason to refuse engagement. The Commission will reiterate this point in its guidelines for DPOs and will also bring this matter to the attention of the Dept. PER.
In relation to 10 above it is a matter for the Minister for Finance and Public Expenditure and Reform to prescribe which public servants will be regarded as DPOs for the purposes of the Act.
The Commission will be reviewing its Guidance for Designated Public Officials in the near future. The comments and suggestions it has received in relation to public servants and public bodies responsibilities will be taken into consideration and reflected, where relevant in the guidelines. A reference to DPOs becoming familiar with the Code of Conduct will be included in the revised guidelines.

Role of Commission

Comments/Suggestions received in relation to the role of the Commission were as follows:

1) The role of the Commission should primarily be one of supporting positive compliance with the Act, with a purposive interpretation of the Act. Good faith attempts to comply with the Act should not lead to the application of penalties. In the context of the State’s obligations to promote and facilitate involvement in public life by the general community it may be necessary to consider whether reporting obligations and penalties be applied in the same manner to civil society and non-profit as such systems are applied to lobbyists acting for or on behalf of commercial interests.

2) The Commission should address the misleading practice of persons submitting multiple returns on the same subject matter as this may be a deliberate practice by some organisations to skew the level of their lobbying activity.

3) The Commission should provide greater guidance and specificity on what does and does not constitute a lobbying activity.

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

In relation to 1 above, the Commission’s focus is on ensuring compliance with the Act. It tries to ensure that only those who are required to be on the Register of Lobbying are registered. The Act, however, does not distinguish between different types of lobbyists or the purpose of their lobbying activities and in terms of contraventions, offences and penalties does not provide for different treatment for different categories of lobbyists. There is no scope, therefore, for the Commission to decide that a person who has committed an offence should not be subject to the relevant penalty on the basis that the person is a not for profit organisation as opposed to a commercial lobbyist.
In relation to 2 above, the Commission is proactively trying to ensure that all lobbying activities on the same subject matter during the reporting period are included on a single return. Where it becomes aware that a person has submitted multiple returns in respect of the same subject matter it will ask the person to amend and consolidate their return.
In relation to 3 above, the Commission has produced a suite of guidelines, guidance notes and Frequently Asked Questions on what constitutes lobbying under the Act. While the Commission can provide some general examples of what may, or may not, constitute a lobbying activity, it does not provide specific advice as to whether a particular communication constitutes a lobbying activity. It is a matter for the person making the communication to consider whether they are within scope of the Act and whether the communication is a “relevant communication” as defined in the Act and is not an “excepted communication.

Cooling off period

Comments/Suggestions received in relation to the “cooling-off” period provided for in section 22 of the Act were as follows:

1) Applications for consent under Section 22 of the Act (to waive or reduce the cooling-off period) and the Commission’s decision making process regarding same should be published. Anonymous historical reporting of section 22 applications and decisions is not sufficient and does not allay concerns that Section 22 of the Act is not being adhered to consistently. Section 22 applications and decisions should be posted every 4 months on lobbying.ie.

2) The appeal process for section 22 decisions should be outside of the Commission.

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

In relation to item 1 above, the Act does not provide for reporting of section 22 applications and decisions. Reports by the Commission are provided for in section 24 of the Act. Section 24 provides that the Commission shall produce an annual report. The annual report shall contain details of any applications for consent under section 22 of the Act and all decisions on such applications during the year to which the report refers. Section 24 provides, however, that the information contained in the report must be “in a form which does not enable the identification of the persons involved…”
With regard to item 2 above, section 23 of the Act provides for the appointment by the Minister for Finance and Public Expenditure and Reform of a panel of independent and impartial appeal officers. Section 23(5) of the Act provides that where the Commission receives notice of an appeal the Commission shall nominate an appeal officer to consider the appeal. Section 23(7) of the Act provides that the Minister may prescribe the procedure to be followed in the conduct of appeals. This procedure is prescribed in the Regulation of Lobbying Act (Appeals) Regulations 2015. The procedures state that the Commission will notify an appellant of the name and contact details of the nominated appeal officer.

Role of the Register

Comments/Suggestions received in relation to the role of the Register were as follows:

1) All new registrants must verify through the online registration process that they have read and will have regard to the Code of Conduct before the registration process can be completed. Those already registered must verify same through the online return system before they can submit their next return.

2) The amount of money spent on lobbying should be declared and included in returns to the Register. SIPO should publish an annual report of the top 50 lobbyists and their lobbying budget.

3) The register should allow organisations to declare membership of trade associations, professional bodies and professional Codes to which they adhere.

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

In relation to item 1 above, the Commission does not agree with this suggestion. The Code of Conduct is neither mandatory nor enforceable. Requiring persons to verify that they have read and will have regard to the Code might cause operational difficulties in terms of persons being unable to register or submit their returns of lobbying activities on time and possibly contravening the legislation and incurring penalties. The Commission will, however, ensure that the Code is prominent on the register and that links to the Code are available throughout the registration and returns processes.
In relation to item 2 above, the Act makes no provision in relation to expenditure on lobbying activities. Information in relation to lobbyists lobbying budget is not, therefore, available to the Commission.
In relation to item 3 above, section 11 of the Act sets out the information which must be provided by a person who wishes to be included on the Register of Lobbying. Section 12 of the Act sets out the information which must be included in a return of lobbying activities. Neither section 11 or 12 of the Act provide for the inclusion of the information relating to trade associations, professional bodies and professional Codes to which particular organisations may adhere. The purpose of the register is to provide information as to who is lobbying whom about what. The Commission is of the view that information relating to trade associations, professional bodies and professional Codes to which a particular organisation might adhere is more appropriate for the organisation’s own website.