What communications are covered by the Act?

 

The Act sets out the categories of person to which the meaning of “carrying on lobbying activities applies”.  We refer to such persons as being within scope of the Act.  A person is lobbying if the person is within scope of the Act and makes a “relevant communication”. A person makes a relevant communication if communicating personally (directly or indirectly) with a DPO about a “relevant matter”.

 

In other words, a person is regarded as carrying on lobbying activities (making a “relevant communication”) if the persons meets all of the following conditions:

 

a. The person is within scope of the Act and makes, manages or directs the making of a relevant communication.

b. The communication is either directly or indirectly with a DPO.

c. The communication is about a relevant matter.

d. The communication is not an excepted communication.

The Act makes no distinctions regarding where the communication takes place and can include “relevant communications” which take place outside of the State.  The Act also does not make any distinctions regarding the level of formality of a communication; an informal, unplanned encounter may be considered to be lobbying just as a more formal meeting.

 

 

 

a)    Who is within scope of the Act?

Persons within scope of the Act are as follows:

 

  • A person with more than 10 full-time employees
  • A body that exists primarily to represent the interests of its members, and which has one or more full-time employees, and the relevant communications are made on behalf of any of the members.  We refer to such bodies as “representative bodies”.  Representative bodies might include,for example, a trade union, professional body, industry association or sporting body.
  • A body which exists primarily to take up particular issues, and which has one or more full-time employees, and the relevant communications are concerned with any of these issues. We refer to such bodies as “advocacy bodies”.  Advocacy bodies might include, for example, organisations promoting the arts or campaigning for childrens’ rights.
  • A third party (individual or organisation) who is paid to lobby on behalf of a person who fits within one of the categories of persons above. (The payment can be in money or money’s worth.)
  • Any person (individual or organisation) making a "relevant communication" concerning the development or zoning of land which is not their principal private residence.  (“Principal private residence” is defined in section 5(9) of the Act.)

 

Individuals and Representative /Advocacy bodies composed entirely of volunteers will generally be outside the scope of the Act unless they are lobbying about the zoning/development of land.

 

b)   Who are the Designated Public Officials (DPOs)? 

DPOs under the Act are:

 

  • Ministers and Ministers of State;
  • TDs and Senators;
  • MEPs for Irish constituencies;
  • Members of Local Authorities;
  • Special Advisers to Ministers and Ministers of State who have been appointed under section 11 of the Public Service Management Act 1997;
  • Public Servants as prescribed;
  • Other categories of persons as prescribed.

 

In relation to “public servants as prescribed” the Minister for Finance and Public Expenditure and Reform has made regulations (The Regulation of Lobbying Act 2015 (Designated Public Officials) Regulations 2015 and The Regulation of Lobbying Act 2015 (Designated Public Officials) Regulations 2016) which together provide details of the positions that are prescribed as DPOs for the purposes of the Act.

 

In relation to the Civil Service a public servant in a position of Secretary General, Second Secretary, Deputy Secretary, Assistant Secretary or Director in a public service body specified in Schedule I of the 2015 Regulations is prescribed as a DPO.  A public servant in a position specified in Schedule 2 of the 2015 Regulations is also prescribed as a DPO.

 

In relation to Local Authorities, the 2015 Regulations provide that persons in the following positions in Local Authorities are prescribed as DPOs:

 

  • Chief Executives and equivalent grades
  • Assistant Chief Executive (Dublin City Council only)
  • Directors of Services
  • Heads of Finance
  • Head of Human Resources (Dublin City Council only)
  • Under the 2016 regulations, which came into effect from 1 September 2016, a public servant in Cork County Council in a position of Divisional Manager is prescribed as a DPO.

 

Full details of the positions above, which are prescribed in the Regulations, are available on our website www.lobbying.ie. The list of positions prescribed as DPOs may be extended by Ministerial Order to other categories over time.

 

c)    What is a relevant matter?

A relevant matter is any matter relating to

  • The initiation, development or modification of any public policy or of any public programme (for example, proposals for changes in taxation, proposals for changes in agricultural policy, proposals for changing entitlement to health services).
  • The preparation or amendment of any law (including secondary legislation such as statutory instruments and bye-laws) (for example, proposals to change the law on adoption, proposals to change bye-laws relating to traffic).
  • The award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds (for example, the criteria for the award of housing grants for people with disabilities, the purchase or sale of a property or other assets by the government).

 

APART FROM the implementation of any such policy, programme, enactment or award or any matter of a technical nature.

 

Some examples of the difference between what might be regarded as relevant matters and “implementation” matters or matters of a technical nature are as follows:

 

  • Communications seeking to introduce or amend a particular tax policy or law would be regarded as communications concerning a relevant matter.  Where a policy has been decided and the tax law has subsequently been enacted, communications regarding application of the law would most likely be regarded as implementation matters.
  • Communications relating to the inclusion of certain criteria in a public tender would be regarded as a communication on a relevant matter. When the criteria are agreed and a Request for Tenders is published, communications such as the submission of a tender; queries regarding the tender specifications and feedback on the outcome of the tender would be regarded as implementation matters.
  • As regards matters of a technical nature an example might be where the Government is proposing policy or legislation to reduce motor car emissions.  Communications regarding the proposed policy or legislation would be regarded as concerning a relevant matter.  For example, where the Government consults with scientific experts on the level of emissions that may cause harm to the environment, it would be a technical matter.  When the legislation is in place, queries to the regulatory department concerning how to conform with the new requirements would also most likely be technical matters.

 

d)   What are the “excepted” (exempt) communications?

It is worth noting that not all communication is considered lobbying for the purposes of the Act.  A communication must meet each of the criteria at a, b and c above to be considered a lobbying activity.  In addition the following “excepted” (exempt) communications are not regarded as relevant communications (lobbying):

 

  • Private affairs: Communications by or on behalf of an individual relating to his or her private affairs. (For example, communications in relation to a person’s eligibility for, or entitlement to, a social welfare payment, a local authority house, or a medical card are not relevant communications).   Individual communications relating to the development or zoning of any land are not exempt unless the individual is communicating about land which is his/her principal private residence and the area of land does not exceed one acre.
  • Diplomatic relations: Communications by or on behalf of a foreign country or territory, the European Union, the United Nations or any other international intergovernmental organisation.  Note that this exemption only applies to communications sanctioned by the officials from the country or territory; simply being resident in another country does not qualify for the exemption.
  • Factual information: Communications requesting factual information or providing factual information in response to a request for the information (for example, a company asking a public servant how to qualify for an enterprise grant and getting an answer; a person asking about the rules in relation to planning and getting an answer; factual information provided to a government department by a representative body in response to a request from the department).
  • Published submissions: Communications requested by a public service body and published by it (for example, submissions received in response to a public consultation process which are subsequently published by the public body.) The Commission has published more detailed guidance in the FAQ section of its website on the matter of public consultation processes.  Public bodies are encouraged to have regard to the requirements of the Act when considering a public consultation process and to refer to these requirements and the Commission’s FAQ when preparing a call for submissions.
  • Trade union negotiations: Communications forming part of, or directly related to, negotiations on terms and conditions of employment undertaken by representatives of a trade union on behalf of its members. It should be noted that this particular exemption applies to a trade union as defined in the Act.  The definition of a trade union set out in the Act, and consequently the exemption, may not apply to all employee representative bodies.
  • Safety and security: Communications the disclosure of which could pose a threat to the safety of any person or to the security of the State.
  • Oireachtas committees: Communications which are made in proceedings of a committee of either House of the Oireachtas.  It should be noted that this exemption only applies to formal proceedings of a committee which are generally recorded and/or minuted.  It does not apply to communications outside of formal proceedings.
  • Communications by DPOs or public servants: Communications by a DPO in his or her capacity as such are exempt. (For example, communications by County Councillors to Local Authority Chief Executives or other public servants does not constitute lobbying.)  Similarlycommunications by public servants (or those engaged on contract by a public service body) made in that capacity and relating to the functions of the public service body are exempt. Public servants are employed by or hold office in public service bodies.  A “public service body” is defined in section 7 of the Act.  In general, these are State bodies other than commercial State bodies.
  • Governance of commercial State bodies: Communications by or on behalf of a commercial State body made to a Minister who holds shares in, or has statutory functions in relation to, the body, or to DPOs serving in the Minister’s department, in the ordinary course of the business of the body. (For example, certain communications between Irish Rail and the Minister for Transport, Tourism and Sport.)  The Commission has published more detailed guidance on this particular exemption inthe FAQ section of the lobbying.ie website  and, in particular, guidance on what might constitute the ordinary course of business of such a body.  Not all communications would be exempt; any communications that would otherwise fall to be lobbying (for example, seeking additional funding, or seeking a legislative change) would be registerable.  Public bodies who have commercial State bodies operating under their aegis may wish to consider this exempt communication and the Commission’s FAQ document and bring it to the attention of their DPOs and the commercial State bodies concerned.
  • Policy working groups: Communications between members of a “relevant body” appointed by a Minister, or by a public service body, for the purpose of reviewing, assessing or analysing any issue of public policy with a view to reporting to the Minister or public service body on it.  A “relevant body” is one whose members are appointed by a Minister or by a public service body and the members include one or more DPOs and one or more who are not public servants nor engaged for the purposes of a public service body.  (For example, advisory groups, expert groups, working groups, review groups or commissions.) This exemption only applies if the relevant body conducts its activities in accordance with a Transparency Code published by the Minister for Finance and Public Expenditure & Reform. The Transparency Code is available athttps://www.lobbying.ie/help-resources/information-for-public-bodies/transparency-code/. Further information regarding relevant bodies and the Transparency Code is at section 5 below.