Opinion ‘Self-regulation is no regulation’ - what the Lobbying Act has failed to tackle

If a public official is lobbied while abroad there is no regulation to oversee this, writes policy expert.

A JUNIOR MINISTER loses his seat. He then gets elected to the Seanad. He subsequently quits the Seanad to take up a new job as CEO of a powerful lobbyist group within the industry he used to regulate as Minster. Surely there’s a law against that?

There is – and to be clear, the aforementioned former junior minister has confirmed he will not be lobbying until the 12-month cooling-off period has passed.

However, the debate has highlighted that while Ireland’s Regulation of Lobbying Act 2015 has been held up as the gold standard, there are no sanctions in the act for failure to comply with the rules it sets out.

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Sherry Perreault, head of ethics and lobbying regulation at the Standards Commission (SIPO), has made repeated calls to the Department of Public Expenditure and Reform to increase SIPO’s powers in this regard. These calls have been persistently disregarded.

If the regulator cannot effectively investigate such matters, then it’s a regulator in name only and there is concern that a regulator without teeth could allow ex-politicians to interpret the legislation themselves.

International lobbying

If you think that the light touch with the cooling-off period is worrying, then the issue of international lobbying is quite frankly alarming.

The 2015 Act only legislates for lobbying that takes place within Ireland. If a public official is lobbied while abroad there is no regulation to oversee this. Lobbyists don’t even have to tell SIPO that the meeting took place. Instead, international lobbyists are merely encouraged to disclose such information, without any legal obligations whatsoever. 

This issue was highlighted on several occasions during the development of the legislation to Brendan Howlin, then Minister for Public Expenditure and Reform who guided the legislation through the Oireachtas. 

Amendments were proposed that would have removed the loophole which allows for an international lobbyist to influence Irish politicians without informing the regulator and suffer no consequences.

Deputy Seán Fleming explicitly attempted to close this loophole during a debate on the Bill. He proposed that when a public official is lobbied outside of the State, they “shall be obliged to register the fact” and “shall provide the necessary information [to SIPO] for inclusion in the register”.

Fleming supported his argument by referencing the potential for the then-Minister for Finance Michael Noonan to be lobbied by the financial sector at the 2014 meeting of the World Economic Forum in Davos that “cannot be captured under this legislation”

Trusting the fox to guard the hen house

During the debate in the Select Sub-Committee on Public Expenditure and Reform, Minister Howlin said that Fleming was “staying up too late at night thinking about these difficult cases”.

Most interesting during this debate 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”.

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, with Howlin citing “reputational issues” as a promising deterrent. This effectively transferred the interest of the Irish people away from public officials and staff away to private foreign companies.

The golden umbrella

Reforming lobbying legislation is difficult for any administration. Developing legislation that captures all communications appears to be practically unattainable. That’s not to say that it’s not worth a better shot.

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 Davos.

The regulator must have the power to enforce the legislation. Both public officials and lobbyists must be held to account for not adhering to it.

Unregulated lobbying poses a serious threat to democracy and political legitimacy because it happens in the shadows. 

Paying lip service to the legislation means that both parties can act with impunity, all protected by the umbrella of having the ‘gold standard’ legislation.

Michaela Reilly works as a Public Policy and Research Executive. She interned at the Standards in Public Office Commission in 2019 and her Master’s thesis centred on the Regulation of Lobbying Act 2015 and lobbying activities abroad.    

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