Nuala Haughey: The first official report on the workings of the Regulation of Lobbying Act 2015 offers important insights into how the new transparency regime is working after less than a year in operation.
Since the law came into force in September 2015, a total of 1,338 registrants have signed up for the register and filed 4,548 returns.
It could only be expected that a novel regulatory system of this kind would take some time to bed down. Certainly, the Standards in Public Office Commission has been very proactive in terms of outreach, stakeholder engagement and public information.
Its Annual Report published this week highlights a range of practical questions and challenges thrown up by the law, which obliges lobbyists to self-report their lobbying activities on a public register on a quarterly basis. Many of the teething problems identified revolve around the fundamental question of “what exactly is lobbying?”
This is a question that those organisations and individuals who come within the scope of the law must now ask themselves each time they have a brief chat, social encounter, formal meeting, email exchange or even a Twitter conversation with Designated Public Officials – DPOs, aka, the lobbied.
For example, if a senior civil servant telephones an individual working for a registered advocacy organisation and seeks their views in relation to a public policy development that they have a particular interest in, this could well be legally considered lobbying.
This is regardless of the fact that the lobbyist did not initiate the contact with the DPO. Furthermore, the onus for registering this communication on the lobbying register lies with the advocacy organisation, not the DPO.
Onus to report activities is on lobbyists, not the lobbied
The very essence of the Irish regime is that the onus is exclusively on lobbyists to declare their lobbying activities. The law does not include any requirements for the lobbied (DPOS) to register, submit returns or validate information contained in the returns submitted by lobbyists.
The Annual Report notes that there have been suggestions, including from some DPOS, that requiring public officials to validate returns in which they are named as being lobbied would provide added assurance of the accuracy of information submitted.
This dual track approach is one that may need to be considered, and should certainly be up for discussion as part of the scheduled one year review of the legislation later this year.
One method could be to require DPOs to file a brief report on their communications with lobbyists, logging details including the date, place, and subject matter of the lobbying contact.
Another approach that would allow for some cross-checking of activities would be to require all DPOs to routinely publish their official diaries or meeting schedules online – this is something that some DPOs routinely do already.
For example the Dublin Inquirer recently accessed the appointments diary of the Dublin City Chief Executive under Freedom of Information, and cross-checked it against the lobbying register. This exercise in itself raised some interesting questions about what exactly is lobbying and the reliability of the self-reporting regime.
Strength of self-reporting regime lies in capturing meaningful data
Placing the reporting obligation on lobbyists may seem somewhat asymmetrical, but one of the key strengths of the register as a transparency tool is that it can do what public sector disclosure cannot.
That is to capture information only known to lobbyists about what they want to achieve with their lobbying activities.
The register require lobbyists to describe in their own words the “intended results” of their lobbying activities. This is information that is clearly of significant public interest.
Yet the clarity and quality of the information supplied by lobbyists under this field on the lobbying returns varies considerably. In some returns on the database, it is not sufficiently clear what exactly the intended results are, while in others there is so much detail supplied that it reads like a cut and paste from a press release.
With thousands of returns being filed each three month reporting period, it is not practically possible for the Standards Commission to do a proper quality control check on each.
But if the register is to prove its worth as an effective tool for public scrutiny of attempts to influence policy, the lobbying returns must be sufficiently clear and have sufficient information to allow citizens and interest groups to fact-check or counter arguments put forward by lobbyists. For this to happen, it is vital that the register captures accurate and meaningful qualitative data on what lobbyists want.
Nuala Haughey is a Project Manager for TASC on Open Government and Democratic Accountability