“Lobbying is a good and proper thing to do”:
Public Affairs Ireland’s conference on The Regulation of Lobbying Act was an insightful and practically-informative day.
PAI’s Garrett Fennell opened last week’s conference on the Regulation of Lobbying Act 2015 by making a brief statement on what he called a “significant development in Irish public law” that is “aimed at increasing public confidence”.
He noted that while secrecy is a required act in certain forms of decision-making, it “should be the exception when it comes to general decision making. The visibility of the decision-making process does contribute to high public standards”.
Ms Sherry Perreault, Prof Gary Murphy, Justice Daniel O’Keeffe, and Garrett Fennell take on the first session of the day
Mr Justice Daniel O’Keeffe was the first to the podium, with a view to outlining the role of the Standards in Public Office Commission (SIPOC) with regards to the new legislation. He outlined the three main functions of the Commission: ethics, political financing and expenditure, and now, the regulation of lobbying. He provided that all “are important tools in a suite of transparency initiatives”. After a brief overview of the first two functions of the Commission, Justice O’Keeffe moved on to the most pertinent to the audience: the regulation of lobbying.
“The legislation provides that the Standards Commission will establish and oversee an online Register of Lobbying. The Standards Commission will also monitor compliance with the legislation, provide guidance and assistance and where necessary investigate and pursue breaches of legal requirements”.
He asserted that SIPOC were pleased to accept the new role. It is, he noted, well-versed in the handling and dissemination of information. However, due to the sensitive nature of some of the information that will be gathered on returns, delayed publication may be a possibility. He laid out the guidelines for such.
He closed his presentation with noting that all of the legislation that gives SIPOC its role in society, there is one key underlying factor: transparency.
Next to the podium was DCU’s Prof Gary Murphy, who aimed to outline the international context of lobbying regulation.
In 2005, Prof Murphy and Raj Chari undertook a review of rules and regulations of lobbying across the globe, which led to the publication of Regulating Lobbying: A Global Comparison. In Ireland specifically, this legislation is something “we’ve been thinking about for a long time”. “The labour party has had legislation dating back to 1999, and various iterations of it”, with many other drafts by other parties following it.
At the heart of it, “lobbying regulation across the globe can simply be put down to the following maxim: who is lobbying whom, about what?”
He noted that while Ireland is a small country, and in certain terms a small society, not everybody knows everybody, and not everybody is aware of what is happening with regards getting promises “on paper”. Ireland is a society where “elites know elites”, “for the vast majority of people that does not remain the case”.
“Self-regulation can work in all sorts of things”, but possibly not with regulation of lobbying. Across the globe, noncompliance can lead to penalties, including jail.
Finally, he stated:
“Lobbying is good, and it should be encouraged… It should be seen as an honourable profession … Once it’s open, policymakers should be able to benefit from it”, but most importantly, it should benefit the public.
Prof Murphy was followed by the newly-appointed Head of Lobbying Regulation Ms Sherry Perreault who spoke about the lobbying register and her role.
She began by applauding the new regime as,
“Enacting new legislation and putting in place a new regulatory system shakes things up. It requires that people and organizations – who are used to doing things a certain way – make some changes to how they do what they do”.
As with Justice O’Keeffe and Gary Murphy, Ms Perreault lauded the new Act for its role in increasing transparency.
Her presentation was a practical “how-to” and “who-by” for the new register: an online list of lobbyists, who they are lobbying and how groups who are doing the lobbying must complete returns three times a year. As the Act will commence on September 1st, those liable to publish returns should have filed them by January 21st 2016.
Penalties, she said, would be introduced following the one-year review of the register. This was to ensure that people were not penalised while becoming familiar with the system, and no sanctions were issued as a result of human error.
She spoke briefly about the Canadian context, in which there are varying stages of regulation. Despite this, there has been no “chill effect” on lobbying activity.
“I expect the same will hold true in Ireland. However, one of the hallmarks of the new legislation is that it allows for review at the one year mark and then every three years thereafter – which will ensure that any unintended negative consequences can be dealt with through amendment or clarification”.
After a mid-morning break, Minister for Public Expenditure and Reform Brendan Howlin TD took to the podium to outline the Government’s position on public service reform, and the ways in which they intend to improve. He began by acknowledging the “erosion of trust in the Government”, which was “significantly shattered in the years up to 2012”.
“Over the past 4 years the Government has worked hard to regain the confidence of citizens after the damaging impact of the economic and banking crisis.”
He spoke of ways in which the Government is attempting to do this, mindful at all times of transparency and accountability, outlining
“a very substantial strengthening in the effectiveness and contribution of the legislature to our democratic system – this would be achieved by not only helping us to learn vital lessons from past events but also identifying reforms and changes essential to making sure that errors of the past are not repeated.”
Finally, he echoed the previous speakers in saying,
“Lobbying is a good and proper thing to do. It’s an essential part of maintaining and healthy and functioning democracy.”
Minister Howlin addresses the conference
The Minister was followed by Bríd Munnelly of Matheson solicitors. From a legal perspective, according to Ms Munnelly, the new legislation “sits on a continuum of issues”, one of which being that “the onus is on the lobbyist and not the lobbied”, therefore a broad range of people fall within the remit of the lobbying register. Further, “there is an amount of work that lawyers do for clients that will be captured by the Act”.
A large part of Ms Munnelly’s presentation focused on the legal definitions contained within the Act and whether or not these create loopholes. One example she gave was when, as often happens, a law firm is lobbying on behalf of a client, they are obliged to name those clients on the register return. This would, in theory, conflict with client-lawyer privilege. The way in which the legislation will interact with Data Protection legislation was a point of discussion, and indeed concern from a legal perspective.]
Brendan Ryan participates in the open discussion
Shortly after Ms Munnelly spoke, the panel assembled on the stage for a short discussion about how the new legislation would affect practitioners from several different sectors. The panel consisted of John Carroll (PRII), John Devitt (Transparency International), Iarla Mongey (Drury | Porter Novelli), Ivan Cooper (The Wheel) and Aidan Moore (SIPOC).
John Carroll said he welcomed the legislation, as it allowed for transparency. The media can now match up public records with known meetings and give a clear picture of what exactly is going on in the legislation-making process. John Devitt also approves of the legislation but said “there’s much more to be done”. For example, amounts paid to lobbyists does not have to be disclosed and this is a stumbling block for transparency. Iarla Mongey acknowledged that the new Act was what some would call a “disruptive policy” and that “the nuts and bolts of reporting that the act will bring is causing some trepidation … But