You can nearly picture the scene: a grinning politician presses the palm of a silk-suited stranger, smiling as he is ushered into a quiet room. The door closes so no one might peer inside and the meeting begins. But what’s being discussed?
This may be an unjustly suspicious caricature of lobbying – a common and legitimate practice where democracies engage with outside interests – but where things are done discreetly in back rooms or closed offices, a public is entitled to be cynical. The best lobbying, after all, is that which we never hear about.
This probably explains the need for legislation that will finally record who has been talking to whom, about what and with which outcome. There are of course concerns, but the true grit of such law will only become known in time.
The Regulation of Lobbying Act 2015 was enacted last month. An online lobbying register, due to be launched next month, will require anyone involved in such activity to record details of clients, names of public officials contacted, subject matter and the intended results of communications.
“Over the last 10 years in particular, there has been an effort to regulate all kinds of different sectors and professions,” says JP McDowell, solicitor at McDowell Purcell.
“Lobbyists have been a feature of our business and political landscape now for some considerable time. They can have a very significant influence both in the public and private sector.”
Exceptions
It is the pathways to such influence that the recording system is designed to map. There are exceptions. For example, a discussion of private affairs is exempt, although this does not extend to matters of planning and land zoning (barring principal private residences).
Where a communication relates to the initiation, development or modification of public policies or programmes, preparation of an enactment or the awarding of a grant, exchanges must be registered. TDs, MEPs, councillors, special advisers and secretaries general of government departments are all included as obligated parties.
“There is possibly the perception that all of this stuff goes on behind closed doors and this shines a light on that,” says Brian Ormond of the same legal firm.
“It is all about ensuring that where this is going on, the public is aware of what is going on. When these things happen in the shadows there is always a risk of abuse.”
There are question marks however as to the extent registrations will bring lobbyists in from the cold, the effect the legislation might have on business practices and the strength of disincentives to avoid transparency.
“I have no idea of how many they are expecting,” says Mr McDowell. “I am thinking this is a register that won’t contain more than a few hundred names. Do we have an industry out there that is comprised of a few thousand people? The register of dentists is 2,000 people. Are there going to be more than 1,000 lobbyist registrations with the commission? I doubt it.”
Those eventual numbers should help shape a hitherto amorphous industry. The register, controlled by the Standards in Public Office Commission, will be updated three times a year and fully open to public inspection. It is likely to prompt considerable interest and this, in its own way, invites problems. While there are some exemptions, as detailed, there is no regard for legal privilege.
Contradictory forces
Writing in the Law Society Gazette, Cormac Ó Culáin outlines the contradictory forces of legal professional privilege and duty of confidentiality.
“The [Law] society’s key concerns with the act relate to the obligations that may be placed on our members in the context of their relationship as legal advisers to their clients,” he wrote.
“The solicitor/client relationship is founded on client confidentiality and legal professional privilege. These tenets occupy the core of the property administration of the legal system.
“The [legislation] has more of an impact on the former tenet as it requires disclosure of the very existence of the solicitor/client relationship. The society submitted that any interference or competing public interest with these long-established norms must be carefully considered against the possible damage to the integrity of the legal system.”
Then there is the issue of penalties and whether there is enough incentive for full compliance. Contraventions of the Act – making a late return (disclosure); failing to make a return; making a fake or misleading return – can be sanctioned in the first instance by a fine of up to €200. Failure to comply could inflate that to €2,500 or, on conviction, up to two years in prison.
The Act appears designed to focus on transparency in an often opaque world. As Mr Ormond points out, there does not seem to be a provision to remove someone from the register for a serious offence. “It seems the focus of the Act is on letting the public know who is talking to whom,” he says. “It’s more for transparency.”
Guidelines for lobbyists will be issued later this month. The register opens in May and will be followed by a three-month period during which users can familiarise themselves with the system. From then on, we will all know who’s in what meeting.
