Are you affected by the legislation?
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 Designated Public Official (DPO) about a relevant matter.
You are affected by the legislation, therefore, if you meet all of the following conditions:
A. You are within scope of the Act.
B. You make, manage or direct the making of a relevant communication.
C. That communication is with a DPO.
D. That communication is about a relevant matter.
E. That communication is not an excepted communication.
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 human rights issues or campaigning for homeless people.
- Any person (individual or organisation) making a "relevant communication" concerning the development or zoning of land which is not their principal private residence.
- 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.)
Communications by representative bodies and advocacy bodies
In the case of representative bodies and advocacy bodies, the relevant communication must be made by an employee of the body or by a person who holds a paid office in the body (for example, the chairman) and whose functions relate to the affairs of the body as a whole and where the communication is made in his/her capacity as such. This means that, in general, communications made by unpaid volunteers are not considered to be lobbying. Office holders such as chairmen and secretaries may be unpaid volunteers. If they are, communications made by them do not generally constitute carrying on lobbying activities. However, a relevant communication may be direct or indirect so, if the communication is made by an unpaid volunteer on the direction of an employee or paid office holder, it is lobbying and must be included in the organisation’s return.
Representative /Advocacy bodies composed entirely of volunteers will generally be outside the scope of the Act unless lobbying about the zoning/development of land. If, however, they employ a person full-time, they would come within scope of the Act.
Representative /Advocacy bodies who make a "relevant communication" concerning the zoning or development of land are regarded as carrying on a lobbying activity irrespective of whether they have a full-time employee or not. This is because the Act specifically provides that any person making a "relevant communication" which concerns the zoning or development of land, which is not their principal private residence, may be required to register and submit a return of lobbying activities. In other words, the criteria for number of employees is irrelevant if the subject you are communicating on is zoning and development of land.
B) Who are the Designated Public Officials?
Designated Public Officials (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.
Public bodies are required under the Act to publish on their websites the names of their employees who are DPOs and a brief description of their roles and responsibilities. It is important to note that not all public bodies have DPOs prescribed.
C) What is a relevant communication?
A relevant communication is a communication that
- May be written or oral
- Is made personally (directly or indirectly)
- Is made by a person who is within scope of the Act
- Is made to a Designated Public Official
- Relates to a relevant matter
- Is not an excepted communication
It should be noted that not all relevant communications (lobbying activities) take place in a formal setting or using formal means. While a great deal of relevant communications may take place via in-person meetings, telephone calls or emails, lobbying can also take place in less formal ways. These include casual encounters, social gatherings, or even social media. If the communication meets the above criteria, it is considered a relevant communication (lobbying activity) and must be recorded.
D) 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.
NOTE: Not all communication is lobbying.
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, C and D above to be considered a lobbying activity. In addition a number of “excepted” (exempt) communications exist (see below).
E) What are the “excepted” (exempt) communications?
The following are “excepted” (exempt) communications and are not, therefore, regarded as lobbying (i.e. they are not relevant communications):
- Private affairs: Communications by or on behalf of an individual relating to his or her private affairs unless they relate to the development or zoning of any land. Where an individual communicates about the zoning or development of land which is his/her principal private residence and the area of land does not exceed 1 acre, the communication is exempt. Detailed guidelines on lobbying in relation to development and zoning of land are available at www.lobbying.ie. In that regard, therefore, a significant amount of constituency clinic communications which elected representatives may have with their constituents will be exempt where the matter relates to an individual’s 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.
- 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 Standards Commission has published more detailed guidance in the FAQ section of its website on the matter of public consultation processes.
- 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 managers 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 the Act. In general, these are State bodies other than commercial State bodies. The Standards Commission has publishedseparate guidelines for DPOswhich deals with this exemption in greater detail.
- Governance of commercial State bodies: Communications by or on behalf of a commercial State body made to a Minister of the Government 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 involving Irish Rail and the Minister for Transport, Tourism and Sport.) The Standards Commission has published more detailed guidance on this particular exemption in the FAQ section of the lobbying.ie website and, in particular, guidance on what might constitute the ordinary course of business of such a body.
- 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 the Transparency Code. The Transparency Code is available at https://www.lobbying.ie/help-resources/information-for-public-bodies/transparency-code/. The Standards Commission has also published a more detailed guidance note on advisory groups etc. and the Regulation of Lobbying. This guidance note might also be relevant for organisations which might provide a secretariat for a DPO or group of DPOs and who may be carrying on lobbying activities.