Public and Administrative Law Update: Review 2016

03 March 2017

It was another significant year in public and regulatory law with more statutory and non-statutory inquiries, high-profile challenges to parliamentary privilege and the first full year of the Regulation of Lobbying Act. 

Regulation of lobbying: one year on

Trends in freedom of information

Investigations, inquiries and an unsuccessful challenge to parliamentary committee proceedings

Regulation of lobbying: one year on

2016 was the first full year of operation of the Regulation of Lobbying Act. The register indicates that there are now just over 1600 registered lobbyists, and over 11,000 returns have been made. The Standards Commission has noted some areas where confusion over the legal requirements persists, including determining whether a communication counts as lobbying, ensuring that returns submitted contain sufficient detail, and the obligation for registrants to submit a return for every relevant period, including a “nil return” for periods during which they did not lobby.

This latter point is most important, given that the Act’s enforcement provisions are now in force. These provisions give the Standards Commission the authority to investigate and prosecute contraventions of the Act and to levy fixed payment notices for late filing of lobbying returns. This includes the requirement to file a nil return. A registered person who is late submitting a return (including a nil return) will receive a fixed payment notice of €200.

Trends in freedom of information

Unsurprisingly, in 2016, the trend of increasing FOI requests and appeals to the Office of the Information Commissioner (“OIC”) continued. The OIC has also sped up its decision-making processes. While official statistics for 2016 are not yet available, 277 decisions were published on the OIC’s website in 2016, a 34% increase on the number in 2015.

Another interesting, and possibly related, trend in 2016 is the OIC’s willingness to refuse or discontinue appeals which would cause an administrative burden to the work of its office. This is a new administrative ground of refusal introduced by the FOI Act 2014. In late 2016, the OIC relied on this provision on two occasions: cases 150430 and 160166. The withheld records comprised over 3,400 and 4,400 pages, respectively, and the requesters refused to reduce or sufficiently reduce the relevant records. The OIC considered discontinuing another appeal on this basis in December 2016 (case 150161), but ultimately decided it was inappropriate given the stage of the process. However, it is clear that the OIC remains willing to refuse or discontinue administratively burdensome appeals. FOI bodies may, therefore, wish to look again at their ability to refuse administratively burdensome FOI requests.

Investigations, inquiries and parliamentary proceedings 

In January, the Banking Inquiry delivered its multi-faceted report on Ireland’s recent systemic banking crisis. 

The IBRC Commission continued its investigation into transactions at Irish Bank Resolution Corporation Limited. Special legislation was enacted to enable it to obtain otherwise confidential and secret information.

There were court challenges to the privilege and immunity attaching to utterances of parliamentary committee members. It was claimed that the general constitutional ‘non-amenability’ of parliamentarians to any court or authority (other than their particular House) was inapplicable in the circumstances. In one case, which has not yet been determined, Denis O’Brien argues that the courts should intervene where the Committee on Privileges and Procedures has allegedly incorrectly and impermissibly cleared parliamentarians of abusing privilege in utterances concerning him. In another case, it was argued that utterances of the Public Accounts Committee concerning ex-Rehab Group CEO, Angela Kerins, were made in proceedings that were outside its jurisdiction. In the PAC case, the High Court has held that, as Ms Kerins appeared voluntarily, and as the utterances did not constitute any form of adjudication or determination, no issue of jurisdiction arose. Therefore, the utterances - no matter how damaging - were just that. The Constitution renders these privileged for defamation purposes and also ousts their justiciability before the courts (as opposed to parliament). Judgment is awaited in the CPP case.

What’s on the horizon for 2017?

One of the big legal topics for 2017, both in the public and private sectors, will be the General Data Protection Regulation, or GDPR, as it is known. The GDPR will affect how public bodies use personal data in a number of key ways. Four points of particular relevance are:

  • the grounds on which public bodies may process personal data;
  • the requirement to appoint a Data Protection Officer;
  • the introduction of Privacy Impact Assessments; and
  • the applicability of the rules regard the one-stop-shop mechanism.

For more information, please contact a member of our Public & Administrative Law team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.