Greater transparency urgently needed in Ireland after Mahon Tribunal findings

The publication of The Mahon Tribunal findings highlighted the urgent need to make the political system in Ireland more honest, more transparent and more accountable.

The passage of the Electoral (Amendment)(Political Funding) Bill 2011 will reduce the threshold for reporting donations to political parties and politicians. The maximum amount of political donations which can be accepted, in the case of a political party, will be reduced from €6,348 to €2,500 and in the case of an elected politician from €2,539 to €1,000. A political party will be required to report donations to the Standards in Public Office Commission of €1,500, or more while a candidate for political office will be required to report all donations above €600.

Companies, trade unions, societies and building societies will have to report all donations over €200 in their annual reports, having previously only been obliged to report donations above €5,078.

This reform is to be followed by a Government commitment to introducing a statutory register of lobbyists this year and to establish rules governing the practice of lobbying and representations on this matter have been received from a number of interested parties.

The underlying intention of this is to make politics more transparent; to make the political enterprise more accessible to everyone. The positive contribution that lobbyists make is acknowledged – by putting forward the views of vested interests to policy makers leading to better legislation.

The British Government also intend to regulate lobbyists. They suggest that a lobbying firm would have to register quarterly with details for public inspection of the registered address of the company and its registration number; the number its employees on lobbying activity; whether those employees are former minister or senior civil servants and their client lists.

A self-employed lobbyist would be obliged to provide on quarterly details of clients.

At the heart of this would be the definition of a lobbyist. The voluntary register of lobbyists maintained by the UK Public Affairs Council defines lobbying, as activity in a professional capacity, that attempts to influence, or advise the British Government, Parliament, devolved legislatures or administrations, regional or local government, or other public bodies on any matter within their competence with respect to legislation or proposals for legislation; the formulation, modification or adoption of a rule, regulation or any other programme, policy or position; or the negotiation, award or administration of a public contract, grant, loan, permit or licence.

The British Government consider the foregoing definition unsatisfactory because the concept of attempting to influence is extremely broad and that it can be difficult to prove intention underlying action. A very broad definition can also have unintended consequences. Would too broad a definition of a lobbyists, for example, oblige lawyers advising lobbyists on employment law, or a building design expert helping a campaigning organisation to reduce energy consumption to register as a lobbyist?

Ireland could learn from the approach to lobbying elsewhere.

European Union

A voluntary joint European Parliament and Commission Transparency Register was launched last June in order to register and monitor ‘organisations and self-employed persons engaged in EU policy making and policy implementation’.

The scope of this covers all activities carried out with the objective of directly, or indirectly influencing the formulation or implementation of policy and the decision-making processes of the EU institutions, irrespective of the channel or method of communication used. The scope excludes legal advice and the activities of social partners acting in an official designated capacity under a specific Treaty. Churches, religious communities, political parties, local, regional and municipal authorities are also excluded but any representative office or legal entities, offices and networks created to represent them are expected to register.

Networks which have no legal status or legal personality but which constitute a source of organised influence and which are engaged in activities falling within the scope of the register are expected to register.

Registration is free but conditional on signing up to a code of conduct that requires transparency over who lobbyists are, who they represent and their aims and objectives.

Information must be updated at least annually in addition to indicating the areas of policy in which they have an interest. Professional consultancies are expected to disclose their turnover that results from activities that fall within the scope of the register. They must list their clients in decreasing order of contract value. Trade and professional associations are expected to provide an estimate of the cost associated with their activities associated with the activities falling within the scope of the register. And to publish tier overall budget and sources of funding, including disclosure of funding from other EU instritutions.

United States

American legislation defines a lobbyist as any individual compensated by a client for services that include more than one lobbying contract – that is, more than one communication where there is an attempt to influence – except where lobbying activities constitute less than 20% of their time over a 3-month period. A client is defined as any person or entity who employs and compensates another person to conduct lobbying activities on their behalf. Groups that carry out lobbying activities on their own behalf must also register.

A lobbyist whose lobbying expenses exceed, or are expected to exceed a $3,000 threshold over a 3-month period is required to register once he or she has had a lobbying contact with senior members of the legislative or executive branch of the US Federal Government, or with senior officials.

Lobbyists in the US are required to file quarterly reports of their activities and identifying the name of the firm or entity; the number employed in lobbying and the entities and issues which are lobbied.

Canada

There has been lobbying legislation in place since 1989 which was revised in 2008. Activities covering more than 20% of time lobbying are captured. Exceptions include communications restricted to requests for information already in the public domain and the preparation and presentation of material to parliamentary committees.

Australia

Lobbying in Australia has been regulated since 1983 with a separate register for foreign and local lobbyists. Lobbyists were obliged to register when they took on a client and to provide a description of the pertinent lobbying activity. A lobbyist required a letter from the Registrar before approaching a minister or officials about the issue which concerned the lobbying.

Government representatives are not allowed, since 2008, to knowingly engage in lobbying activities with unregistered individuals.

Lobbying activities in Australia mean communications with a government representative in an effort to influence government decision making, or amendment of legislation, the development or amendment of a government policy or programme; the awarding of a contract or grant or the allocation of funding.

But it does not include communication with a parliamentary committee or the communication with a minister or parliamentary secretary with respect to non-ministerial matters. It does not include communication with respect to calls for submissions, petitions, or grass roots campaigns with respect to changing a policy or decision. It does not include communications in response to a request for a tender; statements made in a public forum or responses to government to requests for information.

A lobbyist in Australia does not include a charitable, religious or other organisation or funds that are endorsed as a deductible gift recipient; non-profit organisations or associations constituted to represent the interests of their members that are not endorsed as deductible gift recipients; individuals making representations on behalf of relatives or friends about their affairs; foreign trade delegations visiting Australia; professional whose everyday work involves dealing with government representatives in a professional capacity (e.g. an auditor or broker); or members of professions, such as doctors, lawyers, accountants or service providers who make occasional representations to government on behalf of others in a way that is incidental to the provision of that particular service