Guidance note on section 22 of the Regulation of Lobbying Act – The “cooling-off” period.
Purpose of the “cooling-off period.
Section 22 of the Act provides that specific categories of Designated Public Officials ("DPOs") are subject to a one-year “cooling-off” period, during which they cannot engage in lobbying activities in specific circumstances, or be employed by, or provide services to, a person carrying on lobbying activities in specific circumstances. These persons are referred to in section 22 of the Act as “relevant designated public officials” (relevant DPOs). The “specific circumstances” are set out later in this document.
The purpose of the provisions of section 22 of the Act is generally to manage the potential for conflicts of interest between the public and private sectors, and to place restrictions on what is often referred to as a “revolving door” between the public and private sector.
The text of section 22 of the Act is attached as an Appendix to this guidance note.
To whom does the cooling-off period apply?
The relevant DPOs for whom a “cooling-off” period applies are as follows:
- Ministers of the Government and Ministers of State.
- A special adviser appointed under section 11 of the Public Services Management Act 1997.
- A public servant prescribed as a DPO by the Minister for Finance and Public Expenditure & Reform under section 6(2) of Regulation of Lobbying Act (the Act). Details of the prescribed DPOs are on our website.
What are the restrictions which apply to relevant DPOs during the cooling-off period?
Relevant DPOs cannot engage in lobbying activities in specific circumstances, or be employed by, or provide services to, a person carrying on lobbying activities in specific circumstances. These “specific circumstances” are the making of communications comprising the carrying on of lobbying activities (as defined in section 5 of the Act) which:
- Involves any public service body with which the relevant DPO was connected, that is, employed or held an office or other position in the year prior to his/her leaving, or
- Is to a person who was also a DPO who was employed by or held an office or other position with that public service body in the year prior to the relevant DPO’s leaving (referred to hereafter as a “connected DPO”).
The provisions of section 22 do not only restrict a relevant DPO from carrying on specific lobbying activities but also restrict the relevant DPO from being employed by a person who carries on lobbying activities in the specific circumstances set out in section 22.
What is the Standards in Public Office Commission’s role under section 22 of the Act?
The cooling-off period is a statutory requirement and applies for the full one-year term unless the relevant DPO applies to the Standards Commission for consent to waive or reduce their cooling-off period.
The Commission may make a determination on an application for consent after any appropriate consultation. The Commission may:
- Give the person consent without conditions;
- Give the person consent with specific conditions attached; or
- Refuse consent.
It is the responsibility of the relevant DPO to seek consent prior to taking up an offer of employment (or to provide services). It is possible that an employer may not be carrying out lobbying activities as set out at 1 and 2 above when a person is considering accepting an offer of employment (or to provide services). If, however, the person considers that there is a possibility that the specific circumstances of section 22 might arise with the particular employment/provision of service during the person’s cooling-off period, then the person should seek the Commission's consent to take up the employment/provide the service before accepting the offer of employment or agreeing to provide the service.
How should a person apply for consent?
Applications for consent should be sent by e-mail to email@example.com. This e-mail should provide the following information to allow the Commission begin its consultation process:
- Details of the applicant’s previous position for which he/she is considered to be a relevant DPO.
- Details of the position he/she wishes to take up.
- Provide consent for the Commission to contact the applicant’s former employer and prospective employer in relation to the application for consent.
- The date on which he/she intends to take up his/her new employment or begin providing services and the date by which a decision on the application for consent is requested.
Note: Applications for consent usually take between 4 - 6 weeks to process but may take longer if there are delays in the consultation process. If intending to provide services or take up employment for which the Commission’s consent may be required an applicant will need to allow an appropriate amount of time for the Commission to consider his/her application.
Before making a decision on an application for consent, the Commission considers various factors, including, but not limited to, the applicant’s previous and proposed roles; previous contact with the hiring organisation (if applicable); the process used in staffing the position etc..
The Commission usually consults with the applicant, the applicant’s former employer and the applicant’s prospective employer. While every effort is made to seek substantive responses from persons consulted, failure to provide a response or to provide the requested details is not the responsibility of the Commission. The Commission will issue a decision based on the information it has before it, having made all reasonable efforts to consult with relevant parties. The Commission will also check the Register of Lobbying for any returns of lobbying activities of the prospective employer to identify relevant activities and/or lobbying priorities.
The Commission will usually look for and have regard to the following information:
Information in relation to the applicant’s previous employment:
- Confirmation of the exact date on which the applicant ceased (or will cease) to be a relevant DPO.
- Information about the applicant’s previous role and his/her responsibilities as a DPO including information about the files and matters that he/she was involved in.
- Any dealings he/she may have had with his/her prospective employer and/or clients of the prospective employer (including those already reported to the Register).
- Any dealings he/she may have had with any industry or policy area with which the prospective employer or any clients of the prospective employer are involved in or associated with (including those already reported to the Register).
- Any decisions he/she may have been involved in relating to the prospective employer, clients of the prospective employer or any industry or policy area with which the prospective employer or their clients are involved in or associated with.
- Any dealings, of which the former employer is aware, that the applicant may have had with the prospective employer or their clients (other than those already reported to the Register).
- Any other information or observations the former employer may wish to give on the person’s application for consent.
Information in relation to the applicant’s prospective employment or provision of services
- Whether the position being offered has been publicly advertised and/or whether the applicant is being offered this position as a result of a competitive process.
- The date the applicant intends to take up his/her new employment or begin providing services.
- A copy of the job description of the position the applicant will be taking up or the services he/she will be providing.
- Details of any lobbying activities which the prospective employer is carrying on or intends to carry on with the former employer or with connected DPOs during the cooling-off period.
- Details of the applicant’s proposed responsibilities in his/her new position and in particular what lobbying activities are proposed or might arise.
- Whether the applicant will be expected to participate in any lobbying activities generally during the cooling-off period and, in particular, whether he/she will be expected to participate in lobbying activities to the former employer or any connected DPOs during the cooling-off period. (Participating in lobbying activities also includes making managing, directing or advising on lobbying activities.)
- Whether the offer to take up employment or provide services to the prospective employer is contingent on the applicant being involved in lobbying activities generally during the cooling-off period and/or is contingent on the applicant being involved in lobbying his/her former employer or any connected DPOs during the cooling-off period.
- Details of any other activities concerning the prospective employer and / or its clients which the applicant may be required to engage in and for which the consent of the Commission may be required under section 22 of the Act.
- Details of the date by which a decision is required.
- Whether the applicant has applied for other jobs or other job offers are available to the applicant for which the Commission’s consent under section 22 of the Act is not required.
- Valid reason(s) why the Commission should consent to the application for consent.
Other criteria which may be taken into account when considering an application for consent
The Act does not prescribe the criteria which the Commission may take into account when considering an application for consent. The Commission must, however, have regard to the purpose and intent of the provisions of section 22 of the Act and consider whether granting consent (conditionally or unconditionally) would be in the public interest and in keeping with the spirit and intent of the Act. Other factors which the Commission has taken into consideration when considering previous applications for consent are as follows:
- Is the applicant being offered a position of employment as a result of a competitive process or has he/she been “headhunted”?
- Will the prospective employer gain an unfair advantage over competitors in terms of knowledge, connections or networks by employing/engaging the applicant?
- The amount of the cooling-off period which has already passed.
- Whether, when and the extent to which the applicant has previously been lobbied by the prospective employer.
- Whether, when and the extent to which the former employer has been lobbied by the prospective employer.
- Whether and to what extent the prospective employer intends to lobby the former employer in future
- Is there a clear rationale as to why a waiver or reduction of the cooling-off period is appropriate?
- Whether conditions can be imposed as part of the decision which would allow the Act’s objectives to be met?
- Whether the prospective employer can realistically make arrangements within the organisation to meet conditions which the Commission might impose or to otherwise ensure that the applicant is not involved in any way in lobbying activities which are contrary to the provisions of section 22 of the Act
- The applicant’s other employment prospects and his/her right to earn a livelihood.
A decision will issue to the applicant as soon as the decision-making process has concluded. The decision will either refuse consent, grant consent subject to conditions or grant consent with no conditions.
Where conditions are imposed they will be clearly set out. The conditions will normally require the applicant to notify his new employer and former employer of the conditions attaching to the Commission’s consent and to provide evidence of such notification. The applicant must sign a document acknowledging they have read and understood/accept the conditions attaching to the Commission’s consent.
An applicant who is unhappy with the Commission’s decision may appeal the decision. The appeal must be made within 14 days of the decisionand must be made by e-mail to firstname.lastname@example.org. The reasons for the appeal must be clearly stated.
The Minister for Finance & Public Expenditure and Reform has appointed a panel of independent and impartial Appeal Officers to hear appeals of certain decisions made by the Commission under the Regulation of Lobbying Act. An appeal of a decision by the Commission on an application for consent will be heard by an independent appeal officer. The Regulation of Lobbying Act (Appeals) Regulations 2015 prescribe the procedures that must be followed in the event of an appeal.
A person who is unhappy with an Appeal Officer’s decision may appeal the decision to the High Court on a point of law. An appeal to the High Court must be brought within 21 days of the appeal officer’s decision.
Requirements of the Civil Service Code of Standards and Behaviour
Relevant DPOs who are Civil Servants or special advisers should also note the provisions of paragraph 20 of the Civil Service Code of Standards and Behaviour regarding the acceptance of outside appointments and of consultancy engagement following resignation or retirement - https://www.sipo.ie/en/Codes-of-Conduct/Civil-Servants/Standards-of-Integrity.html
Requirements of Part 15 of the Local Government Act, 2001 and the Code of Conduct for Local Authority Employees
Relevant DPOs who are Local Authority Employees to whom Part 15 of the Local Government Act, 2001 (Ethical Framework for the Local Government Service) applies should also note the provisions of paragraph 10.5 of the Code of Conduct for Local Authority Employees regarding the acceptance of an offer of employment or consultancy engagement where the nature and terms are such that the question of a conflict of interest could arise.
Appendix 1 - Provisions of section 22 of the Act
22.(1) A person who has been a relevant designated public official shall not –
(a) Carry on lobbying activities in circumstances to which this section applies, or
(b) Be employed by, or provide services to, a person carrying on lobbying activities in such circumstances,
during the relevant period except with the consent of the Commission.
(2) In this section –
“relevant designated public official” means a person who is a designated public official by virtue of paragraph (a), (e) or (f) of section 6(1);
“relevant period” means the period of one year beginning with the day on which the person ceases to be a relevant designated public official.
(3) The circumstances to which this section applies are any in which the making of the communications comprising the carrying on of lobbying activities –
(a) involves any public service body with which the person was connected during the period of one year ending with the day on which the person ceased to be a relevant designated public official, or
(b) is to a person who was a designated public official connected with that public service body during that period.
(4) For the purposes of subsection (3) a public service body is one with which a person was connected at any time if it was at that time a public service body by which the person was employed or in which the person held any office or other position.
(5) On an application for consent made to the Commission in such manner and form as the Commission may require, the Commission may, after any appropriate consultation, decide to:
(a) give consent unconditionally or subject to conditions, or
(b) refuse to give consent for the whole or any part of the relevant period.