THE RECENT CONTROVERSY over the resignation from the Seanad of Michael D’Arcy to take up a position as head of the financial services group, the Irish Association of Investment Managers, has brought the issue of lobbying regulation back to the fore of Irish politics.
Much disquiet has been expressed across the political spectrum about the ethical implications of the former Minister of State in the Department of Finance with special responsibility for financial services and insurance becoming the chief executive of an organisation dedicated to advancing the interests of its members who by their very nature deal in such financial services.
The advertisement for the post noted that an important part of the job was ensuring that the association’s policies and views were communicated to target audiences, in particular to government departments and regulators.
Given that D’Arcy was the minister for state with responsibility for financial services up until the formation of the new government serious questions around the so-called cooling-off period have been raised by his appointment.
Cooling-off period
So what is a cooling-off period and why are they important? Across the globe in pretty much every jurisdiction which has lobbying regulations, cooling-off periods are central to such regulations. At its heart a cooling-off period is where those who serve as politicians, advisors or civil servants cannot immediately become lobbyists once they have left public office.
The regulation will usually define a period of time before the cooling-off period expires and the former designated public official, to use the language of the Irish act, can take up a lobbying position. Cooling-off periods are an essential part of keeping citizens’ trust in public life.
Their aim is to avoid allegations of lobby groups using political insiders to advance their aims and having special or undue influence over decision makers by dint of their former positions. Such cooling-off periods range from one year to five years and are seen as important in ensuring that parliaments are not seen as cosy cartels for political insiders who can use their former roles to further the interests of their current employers.
Lobbying regulation has been on the Irish political agenda for the last two decades and has been part of various political party manifestos and programme for governments. It finally became a reality in March 2015 when the then-coalition government of Fine Gael and Labour passed the Regulation of Lobbying Act 2015.
The Lobbying Act
The purpose of the Act was to provide for a web-based Register of Lobbying to make information available to the public on the identity of those communicating with designated public officials on specific policy, legislative matters or prospective decisions. The Act also provides restrictions and conditions on the taking up of certain employments by certain designated officials for a specified period of time where a possible conflict of interest arises – the cooling-off period.
The Act was a response to the growth of the lobbying industry in Ireland. Given the complexities of policy making and governance in Ireland many groups, both sectional and cause-centred, professional bodies, businesses, and indeed private individuals have begun to hire lobbyists to advocate to government on their behalf.
Most lobbyists now working in Ireland have long experience of how the political and administrative system works and they include former government press secretaries, former officials of all the major parties, some ex-parliamentarians and a host of former journalists.
As the Minister for Public Expenditure and Reform Brendan Howlin, who piloted the Act through parliament, commented on many occasions during the debate prior to its enactment, the main focus of the bill was for the public to know who is lobbying whom about what. This is enshrined in the first line of the register of lobbying website.
‘Limited and contentious’
Yet the cooling-off period in Ireland is relatively limited and remains contentious. In the 2011 programme for government, Fine Gael and Labour promised to amend the rules to ensure that no senior public servant or minister can work in the private sector in any area involving a potential conflict of interest with their former area of public employment, until at least two years have elapsed after they had left the public service. Yet, in the act, the restriction was limited to one year.
Moreover, the regulator has no power of sanction. As the Standards in Public Office Commission has pointed out previously, the issue of “switching sides” or the perception of a revolving door can serve to undermine public trust in the impartiality of public bodies. Yet, failure to comply with section 22 of the Act which deals with this issue is not a relevant contravention of the Act itself.
The result is that there are no sanctions in the act for failing to comply with section 22 either in relation to applying for consent where required, or in relation to complying with the Commission’s decision on an application for consent and any conditions which may be imposed.
Regulator with teeth
All regulators need teeth and for lobbying regulation to work there needs to be strict enforcement of the penalty clauses entailed in any act. In Ireland, however, there is no penalty clause for a central part of the act and the regulator’s appeals in this regard have fallen on political deaf ears.
Back in February, the Department of Public Expenditure and Reform decided there was no need for a review of the law on lobbying despite 22 separate recommendations for legislative change from the head of lobbying.
This failure to heed the regulator has brought us to the Michael D’Arcy situation whereby he did not feel the need to contact the Standards in Public Office Commission on his appointment and the Irish Association of Investment Managers took legal advice in the first instance rather than make contact with the regulator when it was appointing him.
The result has been an entirely avoidable political furore. If any good is to come out of this saga perhaps it is that the government should listen to the regulator and operate the Regulation of Lobbying Act properly and in full.
Gary Murphy is Professor of Politics at Dublin City University. He has published extensively on lobbying regulation globally and is co-author of Regulating Lobbying: A Global Comparison. He gave pro bono advice to the Department of Public Expenditure and Reform when it was considering implementing a lobbying regulation act.
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