On 22 September 2022, the Minister for Public Expenditure and Reform published the Regulation of Lobbying (Amendment) Bill 2022 (the "Bill"). The provisions of the draft Bill will implement many of the reforms to the Regulation of Lobbying Act 2015 (the "2015 Act") which were outlined in the General Scheme of the Bill (the "General Scheme"), which was published in February of this year. However, there are a number of notable differences between the General Scheme and the Bill, as well as some features of the new administrative sanctions regime which are novel to Irish administrative law.
The Bill was introduced to the Dáil in September where it was first debated and it will now proceed to the Committee Stage where any further amendments will be considered before it is re-introduced to the Dáil.
Business Representative Bodies and Coalitions of Business Interests
One of the key features of the General Scheme was the widening of the scope of the 2015 Act to include 'business representative bodies' and 'coalitions of business interests'. The Bill has not included those terms as defined in the General Scheme, however it does expand the scope of the 2015 Act to include bodies with no employees which (a) primarily exist to represent the interests of its members, or (b) which primarily exist to take up particular issues. In both scenarios, a communication will be a relevant communication for the purposes of the 2015 Act where it would be lobbying if it was carried out by a member.
A new requirement which has been introduced by the Bill is that where one of these bodies engages in lobbying activities, they are required to register as a lobbyist with the Standards in Public Office Commission ("SIPO") and to file lobbying returns by the three statutory deadlines each year. In line with the Bill, these bodies will be required to list the name of every person who is a member of the body both on the lobbying register and also when filing a lobbying return. This requirement has not been extended to representative bodies or lobbying groups which have at least one full-time employee. What this means is that if a representative body does not have any employees and engages in lobbying, it will be required to list its members. By comparison, a representative body with any number of full-time employees will not.
Administrative Sanctions Regime
The most significant reform proposed under the General Scheme, which is reflected in the Bill, is the introduction of an administrative sanctions regime for specific breaches of the 2015 Act. Under the 2015 Act, a designated public official ("DPO") is prohibited from carrying on lobbying activities or being employed by, or providing services to, a person carrying on lobbying activities for one year after leaving their role, save with the consent of SIPO. The General Scheme proposed an administrative sanctions regime to enforce this prohibition, with penalties ranging up to a €25,000 fine and / or a prohibition on registering as a lobbyist for up to two years. The Bill incorporates administrative sanctions for breaches of the cooling-off period, and creates a new contravention: "taking any action that has as its intended purpose the avoidance or circumvention of that person's obligations to register as a lobbyist or to file returns". Conduct of this nature would constitute an offence under the 2015 Act, however a person cannot be subject to both an administrative sanction and criminal liability for the same action.
Minor and Major Sanctions
The Bill introduces a novel legislative provision which distinguishes between 'minor' and 'major' sanctions under the sanctions procedure. This is not present in other administrative sanctions procedures such as the Central Bank of Ireland's powers under Part IIIC of the Central Bank Act 1942 (as amended). 'Minor sanctions' include any of a reprimand, caution or advice from SIPO whereas 'major sanctions' include a fine up to €25,000 and a prohibition from lobbying for up to two years. Under the Bill, major sanctions will require confirmation by the Circuit Court. The Bill sets out a list of sanctioning factors which SIPO may take into account when determining the level of any financial sanction. The Circuit Court may either confirm or annul a decision to impose a major sanction, or it may remit the decision back to SIPO.
Where a person has been the subject of a decision under the administrative sanctions regime, this may be appealed to the Circuit Court. The Bill sets out the considerations that the Court may take into account when hearing an appeal which include whether there has been a serious or significant error of fact or law or a series of minor errors of law or fact which, cumulatively, amount to a serious or significant error.
Conclusion
The Bill does not make any radical changes to what was proposed under the General Scheme. A number of the key reforms were signposted earlier this year, such as the carve-out for communications within a political party and the closure of a loophole where certain lobbyists could become exempt from making a return. The most notable aspects of the Bill relate to the administrative sanctions regime, including the introduction of a minor-major sanctions distinction which may become a feature of sanctions regimes across other regulatory bodies.
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