It is important to note that the Act must be interpreted and applied in the context of reallife situations. It is impossible to anticipate every possible situation and have guidance in place. However, where it is possible to extract general guidance from them, queries and their responses have helped inform the development and continued refinement of reference tools and information on the lobbying.ie website, including frequently asked questions. It is expected that this content will continue to be expanded over time, as the Commission gains more experience in administering the Act.
The Commission will of course monitor any unintended negative consequences of the application of the Act, and will provide any input to the forthcoming legislative review that will be led by the Department of Public Expenditure and Reform.
The following are a sample of some of the issues that have been raised. More information on many of these issues is available in the Frequently Asked Questions section of www.lobbying.ie.
There has been a great deal of interest in the question of whether a communication that takes place outside of Ireland must be registered.
The Act makes no distinction regarding where a relevant communication takes place. Moreover, the Act and its supporting statutory instruments explicitly identify Irish Members of European Parliament and senior civil servants, including some in positions based abroad, as designated public officials.
Determining whether a communication falls outside of jurisdiction is not based solely on whether it physically takes place outside of the country. Each case will have to be reviewed based on its own set of facts to determine in what circumstances a communication would fall within or outside of jurisdiction, and whether and how the Act may apply. There are many issues that must be considered in assessing whether a particular communication is registrable lobbying, for example who was party to the communication, where it originated or was received, and who was making, managing or directing the activity.
Ultimately, regardless of where a communication takes place, if a person within the scope of the legislation communicates with an Irish designated public official about a relevant matter, it is lobbying for the purposes of the Act. We would expect all those lobbying to register.
Many charitable and not-for-profit organisations undertake lobbying activities, which may trigger their obligation to register under the Regulation of Lobbying Act 2015. A number of charitable organisations have asked about whether registering as a lobbyist will impact in any way their charitable status or charitable tax exemptions. While it is of course a matter for Revenue and the Charities Regulator to determine whether an organisation is eligible for charitable status or to avail of tax exemptions, there is no barrier to charities lobbying as long as the lobbying activity adheres to the provisions of the Charities Act, namely, that it fi ts within the organisation’s primary objectives.
An organisation does not risk its charitable status simply by registering as a lobbyist. They must, however, consider whether the specific lobbying activity they are proposing to undertake is acceptable. Charities may have to satisfy Revenue and/or the Charities Regulatory Authority that their lobbying activity is in keeping with their primary objectives. If in doubt as to whether a lobbying activity is appropriate, organisations are encouraged to seek guidance from Revenue or the Charities Regulatory Authority.
Under the Regulation of Lobbying Act 2015, a person with more than ten employees, or a representative or advocacy body with at least one employee that is communicating with a designated public official about a relevant matter, must register and submit returns of lobbying activity. There is no exemption to this requirement for charities.
The Regulation of Lobbying Act 2015 makes no distinction as to the method, venue or formality of a relevant communication. If a person within the scope of the legislation communicates with a designated public official about a relevant matter, it counts as lobbying and must be registered.
Under the Act, informal encounters that take place socially, in a business premises or on the street may be considered lobbying, just as a meeting in a councillor’s office or inside Leinster House. Texts or emails may count as lobbying, as indeed might the use of social media in certain cases.
Many have asked specifically about the use of Twitter. Generally a tweet directed at a broad audience and not targeted at someone would not be considered lobbying. However, if a tweet is sent to an individual designated public official, or that official is tagged in the tweet, it may be registrable lobbying depending on whether the person sending it falls within the scope of the Act and whether the subject of the tweet concerns a relevant matter.
Subsection 5(5)(e) of the Regulation of Lobbying Act 2015 states that “communications requested by a public service body and published by it” are exempt. Any submissions made as part of a public consultation process would therefore be exempt as long as they were requested by the public service body and the public service body publishes them. The definition of public service body for the purposes of this section is set out in section 7 of the Act.
There have been some concerns expressed by registrants that a submission may not be published by the requesting public body in advance of the lobbying returns deadline. If the public body has indicated it plans to publish the submissions, there is no obligation for the registrant to include it in their lobbying return. If it is unclear whether the public body intends to publish the submissions, it is best to verify with the public body.
Public bodies are encouraged to make explicit their intentions when conducting such consultation processes, for the benefit of those who may have obligations under the Act.
Often a designated public official will contact a stakeholder to seek their views, formally or informally, on a relevant matter. The Act makes no distinction regarding who initiates a relevant communication. If a designated public official contacts someone who falls within the scope of the Act, and that person makes a relevant communication, it would have to be registered, regardless of who initiated the conversation.
It is important to distinguish these forms of consultation from the formal public consultations referred to above, where a public body seeks written submissions on an issue and intends to publish them.
Section 5(2)(b) of the Act explicitly provides that a representative body, that is “a body which exists primarily to represent the interests of its members and the relevant communications are made on behalf of any of the members”, with at least one employee, falls within scope of the Act. Representative bodies may advocate on behalf of the interests of a member or members. If the representative body makes, manages or directs the lobbying activity, it is the responsibility of the body to register and submit returns of its lobbying activity.
If an individual member of a representative body also makes, manages or directs his or her own lobbying activities, separate and apart from those undertaken by the representative body, then the member must assess their own obligations under the Act. If the member falls within the scope of the Act, he/she must register and submit separate returns of their own lobbying activities.
Professionals from a wide range of sectors may communicate on behalf of a client. Such persons include solicitors, tax professionals, accountants and management consultants. If communicating on behalf of a client, the lobbyist must register and identify their client in their return of lobbying activities. There is no exemption from the application of the Act for any particular profession.
Some have expressed the concern about whether registering and submitting returns breaches client confidentiality. Compliance with the Act should not necessitate a breach of client confidentiality. The level of information required in a return should not require the disclosure of confidential discussions. If such a situation arose, it would have to be assessed based on its particular facts.
The Act does not set out any requirements for designated public officials to register, submit returns or validate information contained in the returns submitted by lobbyists. There have been suggestions, including from some designated public officials, that having the requirement for public officials to validate returns in which they are named as being lobbied would provide added assurance of the accuracy of information submitted.
Designated public officials may seek correction of any inaccurate information, and the register has a reporting function built in to enable this. They may also choose to register for an RSS (Really Simple Syndication) feed to receive updates whenever they are named in a return.
While designated public officials have no formal obligations under the Act, the Standards in Public Office Commission has identified a number of best practices, which are outlined in the Guidelines for Designated Public Officials, Guidelines for TDs, Senators and MEPS, and Guidelines for Local Authority Members, which are all available on www.lobbying.ie.
Public bodies are required by the Act to publish and maintain their list of designated public officials on the public body’s website. Each body has been asked to identify a compliance officer to assist in this regard. This has proven very useful as the Commission liaises with public bodies to ensure websites are regularly updated and to allow the Commission to keep its own register database up to date.
Public bodies may also support the effective implementation of the Act by identifying advisory bodies or working groups that may operate under the Transparency Code.
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