Modifications: Regulation of Lobbying in Ireland

Ireland has passed the Regulation of Lobbying and Oireachtas (Allowance to Members) (Amendment) Act 2023 (the “Lobbying Amendment Act”) which was signed by the President on 23 June 2023. The Lobbying Amendment Act strengthens and amends the Regulation of Lobbying Act 2015 (the “2015 Act”) by expanding its scope and enhancing enforcement for breach as outlined in our previous briefing on the draft legislation. The Lobbying Amendment Act will become effective once the Minister for Finance has signed the commencement order.

The key changes for businesses and other organisations engaging in lobbying are summarised below. They closely align with the draft legislation, however, there have been two minor changes:

• The title of the legislation has changed from the Regulation of Lobbying (Amendment) Bill to the Regulation of Lobbying and Oireachtas (Allowances to Members) (Amendment) Act 2023. This change reflects the addition of certain technical provisions concerning security allowances for members of the Oireachtas to the legislation at the final stage. These technical provisions amend the Oireachtas (Allowance to Members) and Ministerial and Parliamentary Offices (Amendment) Act 1992 and are unrelated to lobbying regulation.
• The draft legislation proposed an additional requirement for registered lobbyists to notify the Standards in Public Office Commission (“SIPO”) of any changes to their registration details.  However, this requirement does not appear in the Lobbying Amendment Act.

Expanded Scope

The Lobbying Amendment Act broadens the definition of lobbying to include representative organisations and advocacy bodies, even if they operate on a purely voluntary basis. Previously, only organisations employing at least one full-time employee were subject to lobbying registration and disclosure requirements. Now, any representative or advocacy body can qualify as a lobbyist, even without employees, as long as any of its members would qualify as a lobbyist individually. This means more organisations will be obligated to disclose their lobbying activities, including details of their membership.

Furthermore, an exception previously available to representative or advocacy bodies has been removed. Communications made by unremunerated office holders within the organisation, such as volunteer board members, are now registerable as lobbying. This change eliminates a common exception that allowed certain bodies to be exempt from registration.

Infrequent Lobbying

There is also a positive development in terms of compliance burden. The Lobbying Amendment Act introduces a temporary deregistration facility for infrequent lobbyists to obviate the need for ongoing and indefinite filing of nil returns by infrequent lobbyists as required by the 2015 Act.

Enhanced Enforcement

Anti-avoidance

Among the most significant changes introduced brought about by the Lobbying Amendment Act are new anti-avoidance measures.  It is now a criminal offence to take any action that has as its intended purpose the avoidance or circumvention of the requirements to register as a lobbyist or file lobbying returns. The potential penalties are:

1. on summary conviction, a fine of up €2,500; or
2. on conviction on indictment, an unlimited fine and potential imprisonment of up to two years.

This poses not only legal consequences but also risks significant reputational damage for persons prosecuted.

New Administrative Sanctions Regime

The Lobbying Amendment Act introduces a new regime to impose administrative sanctions for conduct by lobbyists that amounts to circumvention as distinct from simple non-compliance. SIPO will have the power to impose minor and major sanctions on persons following an investigation.

Minor sanctions include so-called “softer” measures including:

1. advice;
2. a reprimand;
3. a caution; or
4. any combination of 1-3.

Major sanctions include the following:

1. a financial sanction of an amount not exceeding €25,000;
2. a prohibition on the person from registering on the Register for a period of no more than 2 years;
3. a prohibition on the person from making or having a return made under section 12 in respect of that person for a period of no more than 2 years; or
4. any combination of 1-3.

A decision of SIPO to impose a major sanction will not take effect unless the decision is confirmed by the Circuit Court. Such confirmation may be obtained either by an application made by SIPO, or on appeal.

When considering the amount of a financial sanction, SIPO is required to consider the circumstances of the contravention relating to avoidance or circumvention of obligations in relation to the Register or making of returns during cooling-off periods and SIPO may also have regard to:

• The need to ensure the sanctions are “appropriate and proportionate” to the breach and if applicable, will have “sufficient” deterrent effect;
• The “gravity and duration” of the breach;
• The extent of any failure by the person concerned to cooperate with the investigation;
• Any excuse or explanation offered by the person subject to the investigation for the contravention or failure to cooperate with the investigation;
• Any repeat occurrence of the contravention and any continuance of the contravention once notified of the investigation;
• The “extent and timeliness” of any steps taken to end the improper conduct and/or remedy the consequence of the breach in question; and
• Any precedents that have been set in respect of similar contraventions by either SIPO or the courts.

Cooling-off Periods

The Lobbying Amendment Act also introduces enhanced enforcement in respect of the so-called “cooling-off period” for former public officials.  The cooling off period restricts former public officials  from engaging in lobbying on behalf of private interests for 12 months after leaving office. However, under the 2015 Act, there was no enforcement mechanism for former designated public officials who violated the ‘cooling off’ prohibition.  Under the Lobbying Amendment Act, breaches of the cooling-off period will now be subject to the new administrative sanctions regime (outlined above) and significantly, will be a criminal offence for the purposes of Section 20 of the 2015 Act.

Should you have any queries in relation to the Act, please do not hesitate to contact Deirdre O’Mahony or any member of our Corporate Crime Group.

The authors would like to thank Mary Elizabeth Hayes for her contribution to this update.

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