The Regulation of Lobbying and Oireachtas (Allowance to Members) (Amendment) Act 2023 ("2023 Act"), which amends the Regulation of Lobbying Act 2015 (the "Principal Act"), was signed into law on the 22 June 2023.
The commencement order of 7 November 2023 contemplates a phased implementation of the amendments over the course of 2024 as outlined below. The changes will strengthen enforcement of lobbying laws in Ireland, in particular through the introduction of a new administrative sanctions regime and extend the remit of the Act.
This article follows on from our previous briefing which can be found here.
Strengthening the provisions of the Principal Act – amendments which came into force on 1 January 2024
Meaning of carrying on lobbying activities
The Principal Act was amended to widen the scope of relevant communications about the development or zoning of land under the Planning and Development Acts 2000 to 2021 to include anyone who "makes, or manages or directs the making of" such communications. Under the Principal Act, the obligation only arose if a person carrying on lobbying activities "makes" the relevant communications.
The Principal Act originally only applied to a person who had one or more full-time employees. However, the 2023 Act widens the scope by including bodies that do not have full-time employees, where (1) the body exists primarily to represent the interests of its members or is set up primarily to take up issues for a particular cause (for example a body set up for the purposes of lobbying about a proposed development) and (2) where the members of the body would be in scope if carrying on lobbying activities outside of the body. The 2023 Act also provides that the names of members of the body must be included on the publicly available Register of Lobbying ("Register").
The 2023 Act extends the range of excepted communications to communications by a political party to its members who are designated public officials and which are made exclusively in their capacity as members of the political party concerned.
Register of Lobbying
The 2023 Act provides that where a person has been marked on the Register with a statement indicating that the person has ceased to carry on lobbying activities but who subsequently wishes to recommence such activities, that person shall notify the Standards in Public Office Commission (the "Commission") and the Commission shall remove such statement from the person's entry on the Register.
Restrictions on post-term employment as lobbyist
The 2023 Act also provides for additional provisions on post-term employment of Designated Public Officials ("DPO") as lobbyists with a view to combatting the "revolving door". DPOs include Ministers and Ministers of State, TDs and Senators, Members of the European Parliament, members of local authorities, Special Advisors, Secretaries General and Assistant Secretaries in the Civil Service and Chief Executive Officers and Directors of Services in Local Authorities.
The Principal Act mandated that a DPO not take up a position as a lobbyist until one year after they cease their employment as a DPO. The 2023 Act requires that each public service body must inform employees of this obligation on commencement of their employment and must also notify the Commission if such person decides to leave their employment.
Where a person applies to the Commission seeking to circumvent this requirement, the Principal Act provides that the Commission may do so unconditionally or subject to conditions or alternatively the Commission may refuse to give consent for the whole or any part of the relevant period. The 2023 Act brought in a requirement for the Commission to notify the person in writing of the decision taken within 21 days with a possibility to extend this period by 7 days.
Administrative sanctions - changes which will come into force on 1 June 2024
The 2023 Act expands the definition of a "relevant contravention" to include where a DPO carries on lobbying activities during a period of one year beginning with the day on which the person ceases to be a relevant DPO without consent and where a person acts to intentionally avoid or circumvent their obligations to register on the Register or provide a return detailing lobbying activities to the Commission (the "New Relevant Contraventions").
If the Commission reasonably believes that a person may have committed or may be committing a relevant contravention, the Commission may authorise the carrying out of an investigation. One of the most significant developments of the 2023 Act is the introduction of an administrative sanctions regime for breaches of the New Relevant Contraventions. After carrying out an investigation and considering the report produced, the Commission shall decide whether there has been a contravention and, if so, whether to impose a minor sanction or a major sanction. The 2023 Act gives the Commission the power to conduct an oral hearing or allow a person to make submissions in writing. This can also be done at the request of the person under investigation. The decision can be appealed to the Circuit Court within 30 days of the decision of the Commission.
Minor sanction means advice, a reprimand, a caution or a combination of these. In contrast, a major sanction means a financial sanction up to €25,000 or the prohibition on the person from registering on the Register for a period up to 2 years, or a combination of both. To date there is no guidance on what might constitute a minor or a major sanction, however, in determining the amount of financial sanction to be imposed for a major sanction the Commission must have regard to the circumstances of the contravention and the need to ensure any sanction is appropriate and proportionate. If the Commission has decided to impose a major sanction it must be confirmed by the Circuit Court.
The Commission will publish a code in June 2024 for the conduct of investigations and proceedings relating to administrative sanctions, which is currently awaited.
Conclusion
The introduction of an administrative sanctions regime for certain lobbying contraventions reflects a growing trend to afford regulators in Ireland with such powers. Application of the principles of natural justice and fair procedures will be a critical to the success of the new regime.
Also contributed to by Róisín Rainey
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