The Standards Commission (Sipo) pleaded with the Government not to be put in charge of proceedings where ex-ministers, special advisers or other public servants did not stick to rules around a “cooling off” period before becoming a paid lobbyist.
In correspondence with the Department of Public Expenditure, Sipo said plans to leave enforcement up to them instead of the courts were “completely unworkable.”
They warned that there was a “high litigation risk” and that offences related to cooling-off periods would be better dealt with through the court system.
The Department of Public Expenditure rejected this approach, saying that dealing with it as a criminal matter could have a “chilling effect.”
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Records show how Sipo told the Government that plans for amended legislation on the regulation of lobbying were fraught with difficulty. They said they were already struggling with a lack of resources and adding to their work would “heighten the risk of under-resourcing, and of error, in relation to [their] portfolio as a whole.”
Sipo also argued there was little reason to keep the process outside of the legal system as each case was likely to be appealed anyway.
An email from the Sipo director general Elaine Cassidy in March 2022 said: “Given the financial and reputational impact on the individual, one might anticipate an appeal to the Circuit Court on almost every occasion.
“This would result in the commission engaging in a legal procedure, with processes and safeguards aimed at ensuring procedural fairness in order to be defensible, only to defend a full re-hearing of the same issue before the Circuit Court.”
Ms Cassidy said that while she hoped Sipo would be able to defend any appeal, some losses were “almost inevitable.” “[This] would have both a reputational and financial impact on the commission,” she wrote.
The records show the Department of Public Expenditure was worried a scenario could arise where a person ended up in prison for taking a lobbying job without following the rules correctly. It was also concerned about former politicians and public sector staff being put through the “stressful process of criminal proceedings” for a breach of lobbying rules.
However, Sipo argued that their hearings were “no less stressful, costly or damaging for an individual than the criminal process.”
Ms Cassidy wrote: “Investigation hearings are adversarial, held in public and well covered in the media.”
In a later email from March 2022, Sipo continued to raise what they said were their “significant concerns” over being left in charge of the investigation process.
By April, they warned they would have to contact then Minister for Public Expenditure Michael McGrath directly saying the new legislation on “administrative sanctions” around lobbying was “completely unworkable.”
A further note of their concerns warned of having to run multiple investigations simultaneously without enough staff.
An email said: “[It] would give rise to both resource challenges and litigation risk for the Commissioner.”
In May 2022, Sipo sent a letter to Mr McGrath saying the four commissioners in the standards body already had “other demanding public service positions.”
“The commission’s view is that it is more appropriate to maintain a single system of criminal sanctions for all of the contraventions of the Act, with fixed payment notices available in appropriate cases,” said Sipo’s chairman, Mr Justice Garrett Sheehan.
In response, Mr McGrath said it was important the rules around ‘cooling off’ and employment as a lobbyist did not have a “chilling effect.”
He wrote: “I am confident that this approach is a proportionate policy response; it balances the constitutional right of an individual to earn a living with the need to limit potential conflicts of interest that could undermine public trust.”
Asked about the records, which were released following an FOI appeal to the Information Commissioner, Sipo said it had nothing further to add.
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