The majority of the reforms introduced by the Regulation of Lobbying and Oireachtas (Allowances to Members) (Amendment) Act 2023 (the "2023 Act") in relation to registration and filing of returns have come into effect from 1 January 2024.
In our most recent update on this topic we outlined the main reforms introduced by the 2023 Act to the Regulation of Lobbying Act 2015 (the "2015 Act"). In light of the upcoming return deadline on 21 January 2024, it is timely to consider whether you or your organisation are captured by the requirements of the 2015 Act, as amended.
Individuals and organisations are prohibited from carrying on lobbying activities unless they are registered on the Register of Lobbying (available online at www.lobbying.ie). Failure to file a return can result in fines and prosecution.
We have outlined below the key considerations that will determine whether you are required to register (if not already registered) and submit a lobbying return.
Are you engaged in reportable lobbying?
You are required to register and submit returns if you are engaged in lobbying activity. In order to determine whether or not you are lobbying, you will need to consider the following key questions outlined in the Standards in Public Office Commission's "Am I Lobbying?" information note:
1. Does one of the following describe you or your organisation?
- An employer with more than 10 employees where the communications are made on your behalf;
- A representative body with at least one employee communicating on behalf of its members and the communication is made by a paid employee or office holder of the body;
- An issue-based body with at least one employee that exists primarily to take up particular issues and a paid employee or office holder of the body is communicating on such issues;
- A representative or issue-based body, with no full time employees, where at least one of the body’s members would fall within scope of the Act if such member or members were to carry on lobbying activities outside of the body;
- A third party being paid to communicate on behalf of a client who fits into one of the preceding three categories; and
- Any person communicating about the development or zoning of land.
2. Are you communicating directly or indirectly with a Designated Public Official?
The 2015 Act prescribes certain public officials as Designated Public Officials. These include, inter alia, Government Ministers, Members of the Oireachtas, Members of the European Parliament, and certain prescribed public servants and office-holders. Public bodies must publish information on their employees who are Designated Public Officials.
3. Are you communicating on a "relevant matter" and the communication is not an excepted communication?
A relevant communication means an oral or written communication made personally (directly or indirectly) to a Designated Public Official in relation to a relevant matter. A relevant matter means any matter relating to:
- The initiation, development or modification of any public policy or of any public programme;
- The preparation or amendment of any law; and
- The award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds.
It does not include any matter relating only to the implementation of any such policy, programme, enactment or award.
Certain types of communication, known as excepted communications, are not considered to be lobbying under the 2015 Act. Those include:
- Communications by or on behalf of an individual relating to their private affairs about any matter other than the development or zoning of land;
- Communications requesting factual information or providing factual information in response to a request for the information; and
- Communications requested by a public service body and published by it.
The likelihood is that you will be considered to be carrying our lobbying activities if you answered all of the above questions positively.
What if I am registered but have not conducted any lobbying activity?
It is important to note that you once you are registered as a lobbyist, you are required to file a return even where you have not engaged in lobbying activities during the relevant period (otherwise known as a nil return).
What changes are effective from 1 January 2024?
As outlined in our previous update, the following provisions of the 2023 Act came into force on 1 January 2024:
- Representative organisations, advocacy bodies and bodies formed to represent the interests of their members and bodies that are established mainly to take up specific issues are now within the scope of the 2015 Act. The 2023 Act requires all of these bodies when registering to list the names of all members.
- The definition of lobbying relating to the development or zoning of land will be extended to apply not just to a person who makes a relevant communication concerning development or zoning but also anyone who “manages or directs the making of” such a communication.
- A lobbyist will be required, for the purposes of the lobbying register, to provide details of where they carry out their main activities, or if there is no such address, the address at which they ordinarily reside.
- The 2023 Act allows bodies to temporarily deregister where they have ceased lobbying activities, removing the need to submit nil returns. A body can recommence lobbying activities and shall notify the Commission accordingly and its obligations to submit lobbying returns will resume.
Conclusion
Organisations should assess whether they are captured by the obligations under the 2015 Act, as amended, as soon as possible. If they consider that they have carried out lobbying activities under the revised provisions then they should register as a lobbyist on the Registration of Lobbying website and commence making returns to the Standards in Public Office Commission.
The remainder of the provisions of the 2023 Act, which relate to the new administrative sanctions regime for breaches of the cooling-off period for DPOs (otherwise known as the 'revolving door'), will come into effect on 1 June 2024.
If you have any queries in relation to this update, please contact our Commercial Litigation partners, Karen Reynolds and Connor Cassidy or your usual Matheson contact.