What the Irish Regulation of Lobbying Act 2015 has failed to tackle

Michaela Reilly

Ireland is considered as one of the leaders in implementing forward-thinking lobbying legislation that aims to drastically increase transparency and integrity of the policy-making process. Although the Regulation of Lobbying Act 2015 legislates for lobbying that takes place within Ireland, it neglects to monitor lobbying that occurs outside of the Irish jurisdiction between international lobbyists and Irish public officials. Findings suggest that although the watchdog, the Standards in Public Office Commission (SIPO), does not have extraterritorial enforcement powers, clear-cut suggestions to overcome this were repeatedly rejected in parliamentary debates. A lack of appetite in the Commission to regulate international lobbying may also have played a role in its omission from the legislation.

Irish governments, individual politicians and senior civil servants have long conducted their affairs in a shroud of secrecy, hidden away from public knowledge and scrutiny (Murphy et al., 2019). Some have described it as an “opaque and curious” landscape (Murphy and McGrath, 2011), with others claiming that the term has almost become a “byword for improper behaviour and insider dealing” (Fallon, 2011). This dark underbelly of lobbying in Ireland was revealed through the tribunals of inquiry set up in the mid-1990s to investigate unlawful payments made to politicians (Murphy, 2017). These tribunals categorically demonstrated that the policy-making process was neither open nor transparent (Murphy, 2017), with powerful individuals and companies operating in an unchecked and secretive lobbying environment (TI Ireland, 2015). Though the tribunals of inquiry established did not directly tackle the issue lobbying, they undoubtedly laid the foundation for the eventual introduction of the Regulation of Lobbying Act 2015 almost twenty years later.

Lobbying is not only confined to the boundaries of the state. The interdependence of global markets has meant that transnational lobbying practices have become the norm (OECD, 2014). The OECD’s 2014 report on Lobbyists, Governments and Public Trust: Implementing the OECD Principles for Transparency and Integrity in Lobbying is the only publication that details the international transparency and accountability benchmarks in the public policy process. It furthermore highlights this change in trend towards transnational lobbying and analyses how lobbying regulation is not keeping pace (OECD, 2014). This has brought a myriad of its own issues, one of the most prominent being that foreign interests, represented by transnational corporations, are now increasingly more concerned with influencing policy decisions abroad (Ferguson, 2017) while national lobbying legislation insufficiently monitors such communications. This is something which has become more and more evident in Ireland over the past number of decades. It is also interesting to note that the Irish 2015 Act was developed from the standards of lobbying regulation in both Canada and North America (Murphy, 2017) which may explain why provisions to regulate international lobbyists were excluded, as this is also the case in both Canadian and American legislation.

The Regulation of Lobbying bill was first tabled in a Dáil debate on 23 May 2013 during which the Minister for Public Expenditure and Reform, Brendan Howlin, detailed the main aims of the proposed regulation (Oireachtas, 2013). It is important to note from the outset that the bill was designed to only legislate for lobbying that takes place within Ireland.

A Dáil debate on the Second Stage of the Bill on 30 September 2014 saw Howlin outlining the various sections of the proposed regulation. Exempted communications under Section 5 were explicitly referenced, including “those relating to international relations” (Oireachtas, 2014). Howlin specified that the introduction of lobbying regulation must not obstruct the channels of information to the political system, since this type of communication forms the “essence of policy making” (Oireachtas, 2014). If a public official is lobbied while abroad there is no regulation to oversee this. Lobbyists do not even have to tell SIPO that the meeting took place at all. Instead, international lobbyists are merely encouraged to disclose such information, without any legal obligations whatsoever.

Various amendments were proposed that would have removed this loophole which allows for an international lobbyist to influence Irish politicians without informing the regulator and suffer no consequences. Perhaps the most compelling was tabled by Deputy Seán Fleming during a select Sub-Committee debate on Public Expenditure and Reform in October 2014. Deputy Fleming’s amendment (No. 49) aimed to introduce a provision that would monitor overseas lobbying so as to explicitly ensure that such unintended harmful effects could not transpire. In the event that a designated public official (DPO) is lobbied outside of the state, the concerned public official “shall be obliged to register the fact” and “shall provide the necessary information [to SIPO] for inclusion in the register” which would be kept in such form as the Commission considers appropriate (Oireachtas, 2014).

The Deputy made reference to a recent meeting of the World Economic Forum in Davos – where substantial lobbying is believed to take place without supervision – attended by then-Taoiseach Enda Kenny and then-Minister for Finance Michael Noonan. Fleming implied that “bits and pieces of NAMA were sold off for €200 or €300 million” to some of the largest global vulture capitalist companies “rather than having decent offers of €5 or €6 billion” as a result of intense lobbying (Oireachtas, 2014). He further remarked that such a heightened level of lobbying has the potential to have a more detrimental effect on the future of the Irish economy than anything that could be captured under the proposed bill (Oireachtas, 2014). “Macro-lobbying is a very serious issue. People are not just concerned about micro-lobbying” (Oireachtas, 2014).

During several further debates, Minister Howlin rejected proposals for increased transparency in this regard. On one occasion he quipped that Fleming was “staying up too late at night thinking about these difficult cases” (Oireachtas, 2014). Most interesting was his defence that placing the obligation to report on public officials when they were lobbied abroad was “a burden which [Howlin] would not be keen on taking on, and [he] would not be keen to place it on a range of colleagues” (Oireachtas, 2014). Fleming quickly counterclaimed that although he could foresee some complications with this provision, it was wholly unacceptable that the Minister’s solution to placing reporting obligations on DPOs was for lobbyists “to engage in mega-lobbying” outside of the State if they needed to do so (Oireachtas, 2014).

Rather than make it an explicit obligation for public officials to report overseas lobbying, Howlin’s opinion was that the onus should rest with the lobbyist. The expectation was that overseas lobbyists would register and comply with the “spirit of the legislation”, citing “reputational issues” as a promising deterrent (Oireachtas, 2015). This effectively transferred the interest of the Irish people away from public officials and staff away to private foreign companies.

Minister Howlin promised a review of the operation of the Act one year after its commencement in which he intended to assess the need for any appropriate protocols for DPOs working abroad (Oireachtas, 2015). This has yet to be upheld.

A research interview with an ex-SIPO Commissioner, illustrated that a culture of “lobbying, clientelism, [and] cronyism” had long formed the basis of the Irish political system. When asked about whether the 2015 Act had fulfilled the objectives that it set out to achieve, the interviewee was confident that it had done so, in as much as it could, given the short period of time for which it has been operational but that it was important to highlight that the legislation has started a process that was on-going and constantly in need of review. The objectives could not all be simply met overnight.

Furthermore, the interviewee recalled one case in which a foreign lobbyist registered with SIPO but then failed to uphold their obligations by making regular returns. They were issued with “the usual Section 20(2) notice” and a fixed payment notice fine which they never paid.

The interviewee further maintained that “it would not have been appropriate” to introduce provisions that would switch the onus onto public office holders to register if they had been lobbied while abroad. Describing lobbying regulation as “terra incognita” in Ireland, he insisted that SIPO’s employees had “enough on their plates”. Besides, this provision did not have “a hope in hell of passing through” Parliament. Switching the responsibility to public office holders to report would require “a fundamental change in the way we operate the political system in this country”, and this would be far from something that would stand as the central point in any election manifesto.

There is a need for continued improvement and revision of the 2015 Act. International lobbying of Irish public officials must be regulated and transparent. The Irish public needs to know exactly who is lobbying our politicians so as to limit undue influence from powerful corporations at events such as the World Economic Forum in Davos.

Reforming lobbying legislation is difficult for any administration. Developing legislation that captures all communications appears to be practically unattainable, especially when there is a lack of political will from some members of the Government or SIPO Commissioners responsible for upholding this legislation. That is not to say that it is not worth a better shot. Unregulated lobbying poses a serious threat to democracy and political legitimacy because it happens in the shadows.

References

Fallon, J. (2011) Access: insider perk or key to transparency? Journal of Public Affairs. 11(2). 120- 126.

Ferguson G. (2017) Chapter 10: Regulation of Lobbying. Global Corruption: Law, Theory and Practice. Available at: https://dspace.library.uvic.ca/bitstream/handle/1828/9253/Ch.%2010_April2018_web.pdf?s equence=11&isAllowed=y.

Murphy G, Gillanders R, Breen M. (2019) A question of political will: Corruption and Public Administration in Ireland. DPCE Online. 38(1). Available at http://www.dpceonline.it/index.php/dpceonline/article/view/681/644.

Murphy G. (2017) Lobbying regulation in Ireland: Fool’s errand or finest hour? Administration. 65(2): 127-144.

Murphy, G. and McGrath, C. (2011) The curious case of lobbying in Ireland: an introduction. Journal of Public Affairs. 11(2) 71-73.

OECD. (2014) Lobbyists, Governments and Public Trust, Volume 3: Implementing the OECD Principles for Transparency and Integrity in Lobbying. Highlights.

Oireachtas. (2013) Dáil Éireann debate - Thursday, 23 May 2013. [online] Available at: https://www.oireachtas.ie/en/debates/debate/dail/2013-0523/22/?highlight%5B0%5D=lobbying&highlight%5B1%5D=regulation#s26

Oireachtas. (2014) Dáil Éireann debate - Tuesday, 30 Sep 2014. [online] Available at: https://www.oireachtas.ie/en/debates/debate/dail/2014-09-30/27/

Oireachtas. (2014) Select Sub-Committee on Public Expenditure and Reform debate - Tuesday, 25 Nov 2014. [online] Available at: https://www.oireachtas.ie/en/debates/debate/select_sub- committee_on_public_expenditure_and_reform/2014-11-25/2/

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Transparency International. (2015) Lobbying in Europe – Hidden Influence, Privileged Access. [online] Available at:www.transparency.org/whatwedo/publication/lobbying_in_europe.

About the author

Michaela Reilly works as a Public Policy and Research Executive. She holds an MSc in International Public Policy and Diplomacy at University College Cork. She interned at the Standards in Public Office Commission (SIPO) in 2019 and her Master’s thesis centred on the Regulation of Lobbying Act 2015. It focused on a loophole in the Act which allows for unregulated lobbying to take place abroad and the implications of this on Irish politics and the wider economy. Her work on lobbying regulations has recently received attention of the Irish media.