Lobbying rules not strong enough and unenforceable
Last week, Fianna FĂĄil Minister of State Robert Troy described his failure to declare the sale of a property in Mullingar to Westmeath County Council in 2018 as an âerrorâ, and said he would be seeking to amend the DĂĄilâs register of interests accordingly. Photo: Collins Photos
The traditional summer âsilly seasonâ in media is considered to be a thing of the past since the onset of the Covid-19 pandemic and this August has been no exception as, even with the DĂĄil not sitting, eyes squarely lay on the political sphere this week.
The role the Stateâs ethics watchdog plays came to the fore after The Ditch began reporting earlier this month on Fianna FĂĄil Minister of State Robert Troyâs property purchases and sales over the years.
Last week, Mr Troy described his failure to declare the sale of a property in Mullingar to Westmeath County Council in 2018 as an âerrorâ, and said he would be seeking to amend the DĂĄilâs register of interests accordingly.
It was later revealed he had sold a further two homes which he had âomitted or partially omittedâ due to his own error, and that he would correct the record in this regard. Focus then switched to what the impact of these dealings would be, as Solidarity-PBP TD Paul Murphy indicated he would be making a formal complaint to the Standards in Public Office Commission (Sipo) regarding the matter.
Sipo said ministers and TDs can sell property to local authorities and other public bodies without having to publicly disclose the transactions.
TDs must declare any contracts worth over âŹ6,500 with a public body but Sipo said that as a property âis neither a good nor a service, this provision does not apply to contracts for the sale of a property to a minister of the Government or a public bodyâ.
It's not the first time Sipo has been under the microscope, but there is one piece of legislation that is moving relatively quietly through the various processes â despite generating a strong initial reaction â that could see the standards body given increased powers, particularly in the area of lobbying, that could see it come to the fore more often in future.Â
The State, itself, knows itâs a problem. Or, at least, it knows it doesnât look good. In its submission to an Oireachtas committee around the new lobbying bill, the Department of Public Expenditure and Reform said: âThe perception of a ârevolving doorâ between the public and private sectors can serve to undermine public trust in the impartiality of public bodies.âÂ
It went on to say that instances where former ministers or special advisors donât observe the one-year âcooling off periodâ before taking up a lobbying role have a âdisproportionate impact in undermining public trustâ.
And this is the sort of thing that has cropped up regularly enough in the last few years â former senior politicians, advisors or top civil servants â taking up senior lobbying roles within industry.
Under legislation enacted in 2015, a person who held such a role cannot take a job involving lobbying until one year has passed since they left office. They can apply to have that period waived to Sipo, and appeal it if theyâre unsuccessful.
Currently, there is no sanction for failing to comply with this measure. One of the most notable in recent years was former junior finance minister Michael DâArcy. During his time as minister, his briefs focused mainly on financial services and insurance.Â
After losing his Wexford seat in the 2020 general election for Fine Gael, Mr DâArcy was elected to the Seanad in April of that year.
But, that September, it was announced he was leaving the Seanad to take up a role as chief executive of the Irish Association of Investment Managers, the body that represents the funds and investment industry in this country.
Just a week before his resignation, he had spoken in the Seanad in favour of a bill for which funds had been lobbying for the last five years. The Opposition were irate, and it prompted the nascent FF-FG-Green Government to order a review of the Standards in Public Office (Sipo) legislation.Â
At the time, a spokesperson for Mr Dâarcyâs new employers said they would ânot be engaging in any lobbying activitiesâ until the cooling-off period had been completed.
Taoiseach MicheĂĄl Martin told the DĂĄil that the âcooling-offâ period should be one that has âthe force of law and that has sanction and penalties attached to itâ. He added he didnât approve of a former minister going into a post that he had responsibility for as an officeholder.
Incidentally, a look through the lobbying register shows the only registered time Mr DâArcy did lobby on behalf of the organisation came some time in the last four months of last year. He put at least two phone calls in to a senior official at the Department of Finance requesting that their members could be part of the Irish delegation to attend the COP26 climate conference in Glasgow.
That review ordered just under two years ago has brought us to the point weâre at now, where the regulations on the table from Government would see civil and administrative sanctions of a caution or reprimand, a fine of up to âŹ25,000 and/or a prohibition from lobbying for up to two years for breaching these rules.
After the Opposition had been bleating for action to be taken, it looked like SIPO was going to be given some extra powers to tackle the issue.
But itâs not simple.
The key phrase above that has caused frustration for organisations in this area is that the penalty for breaching these laws would be âcivil and administrative sanctionsâ, and not criminal ones.
SIPO, the statutory body, that would be in charge of administering such sanctions, isnât happy with it.
It told the Oireachtas Joint Committee on Finance and Public Expenditure and Reform that making the maximum âŹ25,000 fine an administrative sanction would put a massive strain on Sipoâs operations. It would be âmore appropriate to maintain a single system of criminal sanctions for all of the contraventions under the Lobbying Act, with fixed payment notices available in appropriate cases,â it said.
It wants breaching the cooling-off period to be a criminal offence and treated alongside other contraventions of the lobbying laws.
The NGO Transparency International Ireland went further. Its chief executive John Devitt said that a two-year cooling-off period should be a âminimumâ when it comes to such figures taking on lobbying roles.
Mr Devitt used the example of someone who may have worked in the Department of the Taoiseach or in Finance, who would have had day-to-day dealings with colleagues in other departments. He said such contacts and know-how would be âvery valuableâ to a future employer in a particular sector.
Since the one-year cooling-off period was introduced in 2015, the majority of those whoâve applied to have it waived have been former ministerial advisors. Such advisors usually make high five-figure, or occasionally six-figure, salaries and are appointed directly by their ministers.Â
They would usually serve relatively short terms that may correspond to how long the minister they advise is in Government. Since 2015, 21 people whoâve held such a role have applied for their cooling-off period to be waived. A further three senior civil servants have also applied for the period to be waived.
To be clear, those applying for this waiver are well within their rights to do so, as they seek alternative employment after leaving their role in Government. Those who subsequently become lobbyists are entitled to do so under the law.
But one such case study released by SIPO details the reasoning why such regulations exist in the first place. The anonymised special advisor in a government department contacted Sipo seeking consent to take up a job with an organisation registered with the Lobbying Register.
His new employer said he would not be carrying out lobbying activities in his new role, but had previously registered that it directly lobbied its new employee.
The special advisor wanted to waive the full 12-month cooling period to take up the job. Sipo said it looked at its records and found the organisation in question had lobbied this official a number of times.
Heâd been given the job without a competitive process and seemed to have been head-hunted by the organisation. Whatâs more, that organisation was going to continue lobbying that same Government department during the âcooling-offâ period.
Sipo said: âThe Commission considered that the registrant would almost certainly benefit from the applicantâs connections and knowledge gained during the applicantâs time as a designated public official.â It turned down the application to waive the cooling period, and said that the public interest would not be served by allowing it.Â
The matter was appealed, with the appeal rejected. And it was a situation such as this detailed by Sipo that Mr Devitt highlighted in his comments, when saying that the definition of lobbyists must also be extended under the new legislation.Â
He said that the legislation should be amended to include anyone who holds a role where they could be directing the lobbying done by others, such as a consultant advising a CEO of how to lobby a particular official, minister or department.
These examples come as the regulator's main concern was its ability to actually enforce the powers it actually had.
Before the Oireachtas Committee, Director General of the office of the Ombudsman, Elaine Cassidy, said Sipo didnât have a view on whether the cooling-off period should be one years or two years, but rather the ability and resources it had to do what it needed to.
âHaving one year or two years becomes irrelevant if we do not have the teeth to enforce it in first place,â she said. âThe view of the commission has been to focus on getting some teeth behind that legislative provision and being able to go after it for one year as it currently stands.âÂ
What these new laws are meant to do, in Minister Michael McGrathâs words, are to âstrengthen our regulation of the lobbying regime even furtherâ. The âŹ25,000 fine for ex-ministers breaching the cooling-off period is a start, but as the regulator and other groups have said, it should go further.
Thatâs not to say any of this will happen soon. Two years on from the DâArcy affair, all we have so far from Government is the General Scheme of the new lobbying legislation.
The General Scheme of a bill is when the Government publishes details of what the new piece of legislation will entail. Usually, the relevant Oireachtas committee will then assess it and publish a report with recommendations on what it should also include or exclude.
The Oireachtas Finance committee has done just that, publishing its report late last month.
It recommended, as per the suggestions of Transparency International Ireland, to extend the cooling-off period to two years as well as allowing Sipo to publish details of cases where it decides to waive or reduce this cooling-off period.
Another key recommendation was that Sipo be given the resources it needs to undertake the civil and administrative regime of fining people who breach the regulations.
In its submission to the committee, the Department of Public Expenditure and Reform said that making breaching the cooling-off period a criminal sanction constituted an âinappropriate policy responseâ.
It said the administrative fines for breaches would âbalance the constitutional right of an individual to earn a living with the need to limit potential conflicts of interest that could undermine public trustâ.
The department also said that instances of such breaches âappear to be relatively lowâ. It added that âgood progressâ had been made with the Attorney General on the drafting of the legislation but it would appear to have little chance of passing before the end of the year.
It said that of the 250 who have left either as ministers, special advisors or senior civil servants since 2015 â a large number in and of itself â less than 20 were âsubsequently identified as having a connection with specific lobbying postsâ.
But, as with all sorts of legislation, waiting for it to be enacted may have consequences. Sipo says it needs support and has been recommending necessary reforms for years. Transparency International Ireland has said chances to reform have been missed since the first review of the act was conducted in 2017.
In the meantime, âa small number of cases appear to have undermined the reputation of the lobbying profession and undermined public trust in politics more widely,â according to Mr Devitt.
To avoid that being undermined further if and when the next controversy arises, the Government would want to ensure the provisions they bring in are effective and, as Sipo puts it, âhave teethâ.
Well-known politicians whoâve since engaged in lobbying include Michael DâArcy, Brian Hayes and Lucinda Creighton.
On the Lobbying Register, there are numerous individuals that may have held roles in the past close to Government such as a press secretary or PA to a party or minister who are not considered âdesignated officialsâ for the purposes of the legislation.
Under the legislation, only Ministers and Ministers of State, special advisers and prescribed public servants (in senior roles) are assigned such a designation. TDs, Senators, MEPs and local authority members are not covered by this provision.
Given that the tenure of a special advisor is often linked to how long the particular minister they advise remains in that job, many go on to other roles outside of Government afterwards. Here are examples of where some whoâve left office in recent years have ended up.
Ed Brophy was chief advisor to Minister for Finance Paschal Donohoe for a number of years, and held roles in public affairs prior to taking up his first Government role in 2011.
According to the Lobbying Register, he has lobbied on behalf of clients to the likes of the Department of An Taoiseach, Department of Housing and Department of Public Expenditure in recent months.
Paul Fox was a special advisor under Fine Gael minister Helen McEntee and worked in the Department of Housing and in Foreign Affairs and Trade.
He co-founded a group called Pinnacle Public Affairs after leaving office and, according to Lobbying Register entries, Mr Fox has lobbied officials in areas such as housing, Covid-19 reopening, and education policy.
A former advisor and political director to Simon Coveney, CaitrĂona Fitzpatrick is a director with Hume Brophy â with a stint at FĂĄilte Ireland in between.
Entries on the Lobbying Register indicate that she has lobbied on behalf of clients in areas such as housing and on the digitisation of VAT refunds.
After being a special advisor to the Minister for Children, Katherine Zappone, under the last Government, and working as an advisor in the Department of Health with Mary Harney in the 2000s, Patricia Ryan went on to become managing director of DHR Communications.
As per the Lobbying Register, she has lobbied on behalf of pharma company Bayer around the roll-out of free contraception for women under the age of 25 on a number of occasions in recent times.
A special advisor under Fine Gael Education Minister, Joe McHugh, and a senior policy advisor in the Department of An Taoiseach before that, Mark OâDoherty became a director of Public Affairs at Gibney Communications last year.
Entries on the Lobbying Register indicate he has lobbied on behalf of clients such as Drinkaware and Huawei during that time.
Having been a special advisor to Shane Ross during his time as Minister for Transport, Tourism and Sport, Aisling Dunne is now head of public policy at Bolt.
The Lobbying Register shows she has lobbied Oireachtas members and ministers around e-scooter legislation in Ireland in recent times.
A former special advisor to Minister Paschal Donohoe, Stephen Lynam is a director of public relations at Q4PR.
Lobbying Register entries indicate heâs lobbied on behalf of the Irish Medtech Association, Drinks Ireland and Hibernia REIT in recent years.
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