Lobbying legislation

Posted by Elaine Byrne

The Department of Public Expenditure and Reform are currently engaged in a process of consultation in order to introduce a regulatory system for lobbying in Ireland. Department officials will publish a policy paper on the process in May and the anticipated legislation is due early next year.  I believe that this is one of the most significant political reform initiatives of this government. The attempt to legislate for influence is not an easy task. The approach by Minister Brendan Howlin and his team is very welcome and perhaps a model in how consultation and legislation should be introduced in the future.

I met with the Department’s civil servants last week to discuss my submission on lobbying. My colleagues Gary Murphy and Raj Chari have been very much involved since the early stages of the process. The Department has received over 50 submissions from different organisations and interests.

Key issues for lobbying regulation

  • -How ambitious should the legislation be? Would an over regulated system actually prove counterproductive because of cost issues and the administrative burden on those engaged in lobbying?
  • -How do you define *lobbyist*? Transparency International argues that the term lobbyist is misleading and too narrowly defined. Is the President of the IFA, for example, a lobbyist although he is not paid?
  • -What exactly should be regulated?
  • -How influential are PR firms in the lobbying process?

Any observations on these or other matters related to lobbyists are greatly appreciated. I hope to write on this shortly.

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14 thoughts on “Lobbying legislation

  1. The whole issues raise more questions than answers.
    What is the precise difference between a lobbyist and an advocate?
    How does one define a stakeholder?
    How does the political system give equal access to all those who want to lobby for a corporation or advocate on behalf of a minority or disadvantaged group?
    How does one decide how time and attention is allocated by the political system to different stakeholders?
    One of the only effective lobbying vehicles available to individual citizens is to air their grievance on the radio and hope that there is enough media reaction to cause a follow-on positive reaction from someone in power.
    How does one avoid situations where a Minister instructs his Ministry advisors to leave the room so that he can have a private conversation with lobbyists in relation to the State’s natural resources?
    How long should an ex TD have to wait until they may be employed to lobby on behalf of an corporation on industry group?

  2. Ms Byrne,
    I left a comment on your website last week that was critical (but in no way offensive) of your performance on the Vincent Browne show. I made reference to the fact that you appeared to be unwilling to even acknowledge VB’s very valid point that in 39 years the independent group of newspapers NEVER wrote a single adverse article on Sir Tony o Reilly notwithstanding his destruction of eircom, his threats to John Bruton, his affiliations with the Haughey government. My comments in this regard stayed on your site for just one day – you chose to delete those comments as you clearly are not interested in recieving any construction criticism but rather appear to be about self promotion on issues that fit a particular agenda. I would kindly invite you to reply to this charge – I think if you continue to promote yourself as a independent commentator on political corruption in Ireland you ought must be held to certain higher standards that does not include censoring valid posts on your own website.

  3. They don’t have to reinvent the wheel. It’s not so much the lobbying that’s the problem (although it is) it’s the lack of transparency and the secrecy that’s the problem.

    The best way to reform things is to make information freely available to anyone and to lift all limits on FOI – that you can check exactly who met with whom and why and when and where and let the facts speak for themselves.

    People in positions of authority don’t have the right to a private life in the sense of pretending the pal they golf with is a different pal to the one they have a meeting with when it’s one and the same person or they are involved with some issue. If they have a problem answering for their whereabouts or who they meet with then they shouldn’t be in government or at senior level in the public sector.

    Holding people responsible for the decisions they make would be a good start too and making sure there are proper records kept for why decisions were taken.

    That penny doesn’t seem to have dropped with Fine Gael in particular but FG probably has the most to fear from greater transparency in decision making.

    Who’d have thought FG of all parties would morph into FF so quickly.

    Rodge – the idea that a Minister would ask officials to ‘leave the room’ or that they would agree should see that Minister getting a swift P45 but it seems saving Kenny’s bacon in the coup that never was gives some Ministers’s a black cheque.

  4. Elaine,

    I can only echo Des Fitzs comments.

    An unfettered, constitutionally protected Ombudsman who can demand all and any paperwork, and command any and all to provide an account of themselves. No exceptions whatsoever.

    The Ombudsman is answerable only to the Oireachtas in full session or a joint committee.

    A full, unfettered FoI. No exceptions, except the Ombudsman agrees that witholding is in the interest of a private individual.

    Cabinet minutes are published within seven days of meetings. All ministerial correspondence is promptly published (again, except the Ombudsman decides it should be withheld).

    How ambitious should the legislation be? Very.

    How do you define *lobbyist*? Any moving object, collection of objects or event which attempts any approach to a minister, TD or official.

    What exactly should be regulated? Any personal approach of any nature is prohibited. Full stop. Forget this ‘regulation’ nonsense.
    Its Ireland Elaine, not a Nordic state.

    Anyone, without exception, public or private is prohibited from lobbying any minister, other than by way of a published memorandum. They cannot even speak with the minister, or department officials. They must request a meeting with the relevant Dáil committee, who will prepare a report. A much expanded role for the Comptoller and Auditor General to investigate where and when they wish.

    Forget this hogwash about trying to decide who is, or who is not a lobbyist. Or what is and what is not a legitimate case. No one approaches a minister or official, about any matter, even a constituent, or a local pressure group. You put your petition in writing to your local TD, and it gets put up in public. The TD then takes you through the relevant committee – in public. When we have the paper trail, it should be relatively easy to decide who is demanding what.

    Just look at the report on the front page of to-days Irish Times Business section. You need to get real real about this sort of chicanery. You make it impossible. Nothing else will work.

  5. There’s a concern here that a focus on definitions and the semantics of regulation obscures a fundamental need for simple, thorough, contemporaneous recording of any contact with any minister by whoever for whatever reason. Being public representatives, this is then displayed in public.We’ve allowed and colluded in a destructive ambiguity by politicans and yet gape open-mouthed when corruption is uncovered. Evidence from numerous investigations on the secret interface between business and politics demands snaredrum-tight legislation, with appropriate, enforcable sanctions for those who transgress. Dismissing the present sly, nauseating, pervasive culture is a national imperative.

  6. Definition of a lobbyist is someone who makes representations on behalf of a particular person/s or interest groups.

    My previous comment on this page was censored. There was no bad language or vitriol. It’s censoring was a direct result of my questioning a contributors perceived allegiance to a particular interest group. It is truly shocking and ironic that that sort of a query would be removed from this, above any forum!

    Should this comment also be removed I would request that u email me an explanation as to the reason why.

  7. Hi,

    Much can be learned from the EU system of transparnecy, which be no means perfect but far ahead of Ireland.

    http://ec.europa.eu/transparency/index_en.htm

    Firstly, we should not call them lobbyists, but interest groups. That covers a far wider amount of groups e.g. PR firms, lawyers, church groups, community groups etc…

    Also it should be free and easy to register online as an interest group, so there should be no barriers. Also Ministers and TDs can then ask groups to register before meetings them.

    All Ministerial diaries should also be online.

    On the FOI issue, there needs to be a total sea change in how government handles information. All information which is not classified or higly-sensitive should be online. It is incredible that TDs have to ask a PQ to find out how many Gardai are in a station, or teachers planned for a school!

    Also all the external groups the government relies on for input (i.e. lobbying) should be transparent e.g. IFSC lobbying.

  8. It is imperative that there is a very clearly defined knowledge
    of what exactly is being regulated. Before implementing any register, what is meant by the term ‘lobbying’ must be defined. It must be accepted that the activity is also called many other
    names including ‘advocacy’, ‘public affairs’, ‘government affairs’, ‘regulatory affairs’ and that each of these must be included within the definition developed.

    The Mahon Tribunal demonstrated the widespread corruption in the planning system – over 30 national and local politicians were mentioned in the report and the issues raised by the Tribunal demand a wider response than the introduction of a Register of Lobbyists. Indeed, the danger is that the Government will introduce a Register of Lobbyists and believe that this is an adequate response to the findings of the Mahon Tribunal.

    If the Government is to address in the fullest sense the issues raised in the Mahon Tribunal than it must also examine whether our criminal legislation is fit for purpose in relation to corruption and the prosecution of those offering or in receipt of bribes or other inducements for the influencing of political authority.

    Such practices are outside the practices of proper, lawful lobbying which is a legitimate activity and which has a rightful role in any functioning democracy, so long as it is transparent and that any citizen can access information from a public authority on the process, inputs and considerations that have influenced a particular policy or legislative outcome. A genuinely robust Freedom of Information must be part of the overall solution.

    It should also be remembered that in any lobbying there are two parties, the lobbyist and those being lobbied. Again, if the Government are serious about this, they should also be focused on ensuring transparency in the dealings of Government and civil servants. The UK model of Minister’s appointment diaries being published (to include all meetings whether inside or outside Leinster House) should be considered.

    The PRCA submission is available here:http://bit.ly/IIdXZX

  9. Just a few thoughts. Am fairly ignorant of the whole area (though no doubt it would be very interesting to sit down and look at lobbying legislation in various countries and examine how successful those attempts have been, as you colleagues seem to have done). But the first question that popped into my mind is what exactly is regulating lobbying attempting to do? Sometimes immediately jumping to first principles can be helpful.

    Certainly it inhabits the same general arena as corruption in that it is concerned with influence. Corruption legislation, I suppose, tries to criminalize what’s considered to be “untoward” influence. Some forms of influence are obviously not considered untoward. If a group of people walk into a TD’s office and promise him their votes if he gets the potholes in their local road fixed or whatever, then I suppose they’re trying to “buy” him with their votes. An acceptable part of the business of politics it seems! 🙂 But if I walk into a TD’s office and offer a brown envelope stuffed with money for a favour, then the line has obviously been crossed into corruption. Of course, a politician may benefit untowardly in a very indirectly manner. Maybe I promise a son or daughter of his a well-paying job in my company several years down the line (or a directorship in a related company sometime in the future). Therefore, I guess in framing corruption legislation one wants to make the wording as broad as possible (some of the Mahon recommendations suggested ways of broadening the scope of corruption legislation).

    Of course, proving corruption to a criminal standard in a courtroom is no easy thing (even assuming that the criminal justice system itself is sufficiently independent from and able to investigate politicians without fear or favour, and that’s a big assumption here). Criminal investigation and prosecution would be the first line of defence. Lobbying would form part of the second line of defence. It might not often be possible to prove an explicit link beyond all reasonable doubt, but perhaps, as second best, one can place the fact in the public domain that both parties (the politician and the other party trying to influence the politician) were involved in a mutually beneficial relationship.

    Donation legislation has this kind of strategy in mind. Perhaps a person mysteriously jumped way up the housing list and got a council flat, or a company received a lucrative government contract, or legislation was changed that benefited an organization in some way. The point with good donation legislation is that I should be able to look up a register and determine if these entities “happened” to donate money to an individual politician or political party.

    Transparency is the aim. If some person or entity influences a politician, then it’s desirable the public should know whether the benefits of the interaction happen (by “coincidence” or whatever) to flow both ways. Even if nothing is provable the general public is nonetheless still given the opportunity to make up their own minds.

    I suppose lobbying and its regulation is about documenting one side of this interaction. If a person or entity influences a government/party/minister/politician’s policy, legislation or actions in that a way that benefits (now or later) that person or entity then I’d feel there should be a legal onus on them to declare that benefit. Of course, like corruption, that benefit might be very indirect. And there may be an circuitous chain from the attempted influencer to the politician. A professional lobbying company might be involved. Or it might be nothing more than an informal chat with a good buddy of a politician who’ll later have a word in his/her ear. So I’d guess any legislation (same as for corruption) should ideally be worded to be as broad and encompassing as possible, and take in all links of such a chain, and give the courts wide discretion.

    The basic intent is that if a person or entity (whether directly or indirectly) influences a government/minister/politician’s actions and later benefits from this, then there’s a legal obligation to register this. The point is that if the benefit appears to be mutual and flow both ways (and the politician/party later benefits in turn from the influencer) then at least the benefits of both sides of the influence interaction are publicly visible.

    One can also try to document as much of a politician’s interactions with “lobbyists” as possible. This would be the “softer” side of lobbying. It’s probably at least worth trying to attempt this. But the legal lines and definitions and boundaries are likely to be very malleable (and perhaps not difficult to circumvent if that’s the intent). Potential overheads could be high. Getting the balance right is probably going to very difficult.

    I’d wonder, though, might it also be worth criminalizing failure to register influence one has on a politician once that influence has led to a benefit for oneself or one’s organization. Perhaps the penalties could be set quite high. Again the standard of proof in a criminal case would be quite high (as for corruption). But it might also be a far easier thing to prove, i.e. show that the person influenced the politician, then benefited from that influence, and then finally failed to declare this benefit.

    Of course, this all assumes that the first level of our criminal justice system (the Gardaí) would feel free to investigate such a relationship. Unfortunately, very few safeguards have ever been put in place in this country to safeguard the independence of our police force from ministerial/government control (a topic even raised by Gardaí themselves at the recent AGSI conference, see http://www.irishexaminer.com/ireland/kfidsnmhojid/rss2/ ). Might be worth having on the books though.

    • Apologies for all the typos. Obviously should have “regulation of lobbying” instead of “lobbying” in several places also. A bit of error checking wouldn’t go astray before clicking post, whatever about the actual content! 😉

  10. This is sad. We live in a state where our Government is an elected dictatorship. Ding, ding, folks – Its Ireland – we live in a dictatorship. Local government is a shambles. And you expect that we shall have ‘anti Corruption’ legislation that will not be corrupted!

    If any of you believe this, its very sad. I know you want to be seen as reasonable rational, or whatever. But you are being completely naive to the point of bordering on the useless. Actually, by either participating directly, or making ‘reasonable’ proposals, you are actually shoring up a corrupting process. That’s not a situation many might accept. But please think about it.

    Forget the niceties. Just prohibit any approach to any minister by any person, including elected reps. If you do its criminal. Put your petition, or whatever in writing. If your an individual constituent your local TD can lead it through the relevant Dáil committee (I’m assuming its a serious and significant request, not some personal triviality), or if you represent an interest group you file your petition to the relevant Dáil committee, and they can quiz you in public about it. All petitions are published promptly. It will not cure our underlying psychological problem. It just might reduce the more egregious behaviours. Might!

    Its Ireland folks, Ireland. We do corruption. Its almost a national sport. We are basically a bunch of corruptible corrupters, so start from there. Accept the basic facts of Irish political life. If’n your actually serious about this. Get Real as they say (as in Realism).

  11. Thank you for all your comments. The debate on lobbying legislation will no doubt intensify before the Department’s seminar in May and the publication of the draft Bill in the coming months.

    Here’s a piece I wrote for the Sunday Independent on lobbying. I hope to return to this in the next while. The Leveson Inquiry has certainly placed this, and other issues, centre stage.

    http://www.independent.ie/opinion/analysis/elaine-byrne-influence-is-everpresent-so-it-must-be-regulated-3095058.html

    • The problem is that most people who write to a Minister or TD never get an acknowledgement never mind a reply to engage so as to be able to make their point – I’m talking about rational points not contacts firing off anger on some issue.

      Whereas the people you mentioned all get access that a mere ‘ordinary’ person would not get and with that access they get to shape policies that affect all of us.

      That’s wrong but rather than trying to define what a lobbyist is, a far easier way to tackle the issue is by increasing transparency and accountability and lessen the ability of Ministers, TDs and officials to hide behind paperwork.

      Isn’t it remarkable that in this day and age you can’t even go online and access an Irish Minister’s diary online and there are no published lines of authority for all the departments so the public can see the chain of command and who’s the decision maker or influencer in what area.

      So much for a new ‘reforming’ government. I think focusing on how to define lobbying etc is a smokescreen by whomever to avoid any real reform and certainly to avoid there ever being proper transparency or accountability for decision makers.

      It is shocking to think that the details of the most far reaching (and possibly worst) decision ever taken by an Irish government (the banking guarantee) are in the hands of a foreign news channel (BBC) and the late ministers’ family when that information (from which we might get to understand the rational for the decisions taken and by whom they were taken)should be in the hands of the state.

      Of course this suits those who were behind the decision so they can evade their role in causing this mess (not that they’d ever be held to account for it) and it suits the government because it seems the nano second you are appointed a minister you undergo some sort of brain scan change where you’re rendered incapable of not putting the protection of the ‘system’ above all rational evidence to the contrary.

      More transparency will do more (and far quicker) to change mindsets and reform politics than any number of papers or proposals. Just knowing people can be identified and held to account and will have to justify their decisions in public will lead to better and more honest decision making.

  12. Pingback: UPDATE: Lobbying legislation « politicalreform.ie

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