By Nuala Haughey
Almost fifteen years after the idea was first proposed in a Labour Party private members’ Bill, Ireland is due to get a mandatory lobbying register.
The online database will capture information about the efforts of interest groups and professional lobbyists alike to influence policy and legislation. The database is provided for in the Registration of Lobbying Bill 2014 which is currently before the Oireachtas. Groups and individuals who lobby will have to register with the Standards in Public Office Commission (SIPO) and file lobbying returns three times a year.
The real value in this kind of public register is that it could become a one-stop shop that would allow citizens to track significant attempts to influence senior policy-makers.
The greatest risk associated with it is that it will shine a light on only a fraction of the actual lobbying that takes place, while allowing powerful interests to continue to influence policy ‘under the radar’.
Until the online register is up and running, we won’t be able to determine the extent to which it will fulfil its potential as an important proactive transparency tool that complements the Freedom of Information Act.
But what we can say with certainty is that this register alone is not the solution to the problems citizens face when policy-makers, politicians and regulators allow themselves to be co-opted or ‘captured’ by powerful vested interests.
Transparency International Ireland has just published a study on the Bill and on lobbying more generally in Ireland, as part of a 19 country research project.
Our overall conclusion – which may come as little surprise to regular readers of this blog – is that the planned register is just one reform measure among others that are needed to safeguard against lobbying risks, including undue or improper influence and abuse of power.
The recommendations in our report, Integrity and Influence: Lobbying and its Regulation in Ireland, go beyond a narrow focus on lobbying-related corruption risks. We propose a range of reforms which are aimed at promoting integrity among political decision-makers and ensuring more openness, plurality and contestability in policy-making.
• A long-overdue reform of the unduly complex and blatantly ineffective laws and codes regulating ethical standards in public life, accompanied by proper training for officials and elected representatives. The Mahon Tribunal’s recommendations are particularly strong in this area and we look forward to seeing Minister Brendan Howlin’s proposals in the Public Sector Standards Bill due to be published in early 2015.
• Robust measures to control the ‘revolving door’ between public and private life which pose particular risks of conflicts of interest. We recommend a mandatory two year ‘cooling-off’ period for senior public officials at both local and national level to be overseen by a well-resourced and appropriately powerful oversight body. The Bill introduces a one year focused cooling-off period to prevent former public officials from lobbying their former colleagues. However, it is not clear how this would be policed in practice. The Programme for Government promised a cooling-off period of “at least two years” for senior public servants moving to the private sector where a potential conflict of interest with their former public employment could arise.
• Clear rules for expert and advisory groups to allow proper scrutiny of their work and ensure balanced composition and stakeholder diversity. These sorts of groups can exert significant influence over public policy through what is effectively a form of lobbying from the inside. The Organisation for Economic Cooperation and Development in its recent report on the implementation of its lobbying principles identified the influence of private interests through these kinds of groups as “an emerging risk to the integrity of policy-making”. The Bill provides for a transparency code for such groups established by a Minister or a public body. We recommend that there should be open calls for nominations of such groups using the Public Appointments Service, and that lobbyists and corporate executives should be prohibited from sitting on them in their personal capacities.
• Additional proactive transparency measures including the online publication of declarations of interest by elected and senior appointed officials and the introduction of a ‘legislative footprint’ to allow the public to see the input of groups and individuals into shaping laws. (The FOI Act 2014 provides for more proactive publication of routine information by public bodies)
As for the register itself, on paper at least, Ireland’s planned regime is more comprehensive than those that currently exist in six of the 19 countries (Slovenia, Lithuania, Austria, UK, Poland and France) that have been examined as part of its current research project in this area.
In several important ways, Ireland’s proposed register gets it right where other countries have not. For one, the planned Irish register is mandatory, rather than voluntary. Individuals and organisations that lobby must register with the Standards in Public Office Commission (SIPO) and file returns three times a year. Secondly, the Bill goes beyond the activities of professional lobbyists to also include lobbying by a range of interest groups including trade unions, charities, non-profits and representative bodies.
As Minister Brendan Howlin acknowledged during the recent Dáil committee debate, the Registration of Lobbying Bill 2014 takes an ‘incremental approach’ to the amount of lobbying activity that will be captured in the register over time.
So, at the start, the register will capture information about lobbying of senior decision-makers at national and local level, including Ministers, Ministers of State, and special advisers, as well as TDs and Senators. At government department level, lobbying of officials at the rank of Principal Officer and below will not have to be captured on the register.
TI Ireland believes that the planned regime could be strengthened in several key respects – for more details on exactly how, see our submission.
In particular, we would like to see lobbyists being required to disclose financial data on sources of client or donor as well as paid or unpaid activities undertaken on behalf of political parties, elected officials and election candidates. This would allow the public to better understand how money and political connections influence public policy. We would also like to see the register designed so that lobbyists can upload to it documents they have shared with lobbying targets. This would truly enhance its utility as a go-to portal that would allow citizens and others to evaluate and counter arguments put forward by lobbyists and to track their influence.
Our study also recommends that SIPO be given explicit powers to verify lobbying returns, receive complaints from the public and ‘name and shame’ those who contravene the law. While SIPO currently has extensive powers to investigate possible breaches of lobbyists’ reporting requirements, it is unclear exactly how – in the absence of a public controversy – these would be triggered.
On a more general note, we have concerns about some of the listed exemptions in the Bill – communications which do not have to be disclosed as they are not considered as lobbying. There is a real risk that if the register captures only a partial picture of lobbyists’ policy inputs on any particular issue, it will give an inaccurate and distorted impression of how policy is actually influenced.
There is a fine balance to be struck in regulating in this area: a register must ensure that there is appropriate transparency without creating excessive bureaucracy or impinging on the democratic right of citizens to interact with law makers.
Minister Brendan Howlin and his officials have attempted to strike this balance and have consulted widely. During the recent Dáil discussions, Mr Howlin alluded to this balancing act when he said that “in the first instance, we should not sink the canoe before we even launch it”.
The Bill itself requires the Minister to undertake a review of the legislation one year after it comes into force and subsequently at three years intervals. According to an official policy note, this review will provide an opportunity to ensure that the registration exemptions in the Bill do not act as a conduit for unregulated or ‘secretive’ lobbying lacking in transparency.
This iterative approach makes sense and allows time for the new regime to bed down before expanding it. However, the fact that there is provision for inbuilt reviews of the operation of the law does not mean that any effort should be spared ahead of its enactment to ensure it is as water-tight and comprehensive as possible.
One official involved in preparing the legislation to establish the register accurately described as “not a window on government”. It is more realistic to see this targeted measure for what it is – another gap in the curtain covering that window.
If the new regime is to achieve any meaningful change, it is vitally important that it is not allowed to become mere window dressing. If that happens, then the fifteen year wait will not have been worth it.
Nuala Haughey is research manager with Transparency International Ireland. Integrity and Influence: Lobbying and Its Regulation in Ireland is available on: http://www.transparency.ie.