Penalties for non-compliance with the Regulation of Lobbying Act to be activated

The Act, most of which came into force in September 2015, introduced new legal obligations for organisations and individuals communicating with public officials.  The Act is broadly drafted and many individuals and organisations who would not have instinctively thought of themselves as lobbyists fall within its remit. When the Act was introduced, there were concerns with how it would apply in practice. In light of these concerns, it was decided to delay the introduction of penalties to allow time to generate awareness of the Act.

What is lobbying?

For a person to be engaged in “Lobbying Activities” that person must make a “relevant communication”, either directly or indirectly, in relation to a “relevant matter” with a “designated public official”.

• A relevant communication is made when a person communicates personally, either directly or indirectly in respect of– 
• A relevant matter, which includes changes or developments in a public policy or programme, legislative changes or the award of any grant, financial support, agreement or authorisation involving public funds, and this communication is made to–
• A designated public official (DPO), including ministers and other members of the Oireachtas, local authority members, and certain senior public servants. 

Where a person or organisation has lobbied they are required to register online and make three returns to SIPO per year setting out details of their lobbying activities. The register is accessible to the public. For further information on who is required to register, please see our article published in October 2015 here.

Penalties for non-compliance with the Act

From 1 January 2017, SIPO has the power to investigate and prosecute any breaches of the Act.

Where a lobbyist has filed a late return, they may be liable on conviction to pay a Class C fine (a fine not exceeding €2,500) or alternatively SIPO may serve a fixed payment notice of €200.

For other offences under the Act, a lobbyist may be liable on summary conviction to a Class C fine or if convicted on indictment to a fine or imprisonment (not exceeding two years) or both.

Key issues identified in the Report

It is important for all lobbyists to familiarise themselves with their obligations under the Act. SIPO has offered additional guidance on some of the key areas of concern identified in its Report which include: 

• Lobbying outside of Ireland – there was some confusion as to whether the Act applied to lobbying which took place outside of this jurisdiction. SIPO has confirmed in the Report that provided a relevant communication is made with a DPO you are required to disclose the activity irrespective of where the communication has taken place.
• Method or venue of the communication – all informal communications are covered by the Act including texts, emails and some forms of social media. Interestingly, SIPO specifically addressed Twitter and advised that if a tweet is sent directly to a DPO or the DPO is tagged on the tweet this would constitute lobbying under the Act. Where a tweet is directed at a wider audience it would not generally fall within the definition of lobbying.
• Submissions to public consultations – where a public body has invited you to make submissions as part of a public consultation, these communications are exempt once they are published. There have been some concerns that the public body may not publish details of the consultation by the relevant deadline and whether this creates an obligation on the party who made a submission to include this in their lobbying return. SIPO has confirmed that if the public body has advised that they intend to publish details of the consultation, there is no further obligation on the party who made the submission. 
• Initiation of communication – SIPO has advised that, even if the DPO makes contact with you first, if you engage in a lobbying activity you are required to submit details of this in your return. There are no obligations on the DPO to register the communication.
• Client confidentiality – there are concerns that the submission of returns may breach client confidentiality. SIPO has advised that the level of information required in the return should not require the disclosure of any confidential information but if this issue arises it would be assessed on a case by case basis.

Next steps organisations need to take

The grace period under the Act is now coming to an end and organisations should be aware of their obligations and ensure they are fully compliant with the Act before the penalties come into force in January 2017.

We recommend that organisations ensure they have: 

• put in place arrangements for recording relevant communications which might fall within the Act;
• identified individuals responsible for registration and the compilation of returns;
• taken steps to verify whether their contact on any matter is a DPO; and
• registered and are making the returns within the time limits.

The next key date for filing a return under the Act is 21 September 2016 and returns setting out details of lobbying activities for the period from 1 May to 31 August 2016 must be submitted by this date.