Business corporations, industry associations and other organisations that directly lobby government would not be affected by legislation to create a UK register of lobbyists, introduced in the House of Commons on 17 July 2013. The Government Bill, presented by the Rt. Hon. Andrew Lansley, Leader of the House of Commons, would require only consultant lobbyists to make transparent their activities.
If passed (as seems likely to be the case), the law would prohibit individuals from operating as consultant lobbyists unless they, or the lobbying consultancies that employ them, are entered on the register of lobbyists. The content of the register would be sparse: the Bill specifies only that the register is to contain the name and address of the lobbyist (or lobbying consultancy) and the names of clients. Any additional content of the register would be specified in regulations (yet to be made).
The Bill will make it a criminal offence to carry on the business of consultant lobbying without being registered in an accurate and complete filing, to fail to file required information on time, and to file information that is inaccurate or incomplete. The exercise of due diligence is a defence. In the event of an offence by a corporation, a director, manager or corporate officer would be liable if he or she consented to the offence or was guilty of neglect. A person convicted of an offence is liable on summary conviction to a fine of up to £5,000 and on conviction in Crown Court to an unlimited fine.
Alternatively, the Registrar of Lobbyists may impose a civil penalty of up to £7,500 for conduct that amounts to an offence. The Bill provides that the penalty would be recoverable by the Registrar as a debt. The exercise of due diligence would not prevent imposition of a civil penalty.
No Transparency for Lobbying of MPs, Peers and Most Government Officials
Significantly, the Bill defines lobbying to include only oral or written communications, made personally to Ministers and permanent secretaries, that relate to the primary and subordinate legislation, government policy, government contracts, grants, financial assistance, licences and authorisations, and the exercise of other government functions.
The UK legislation’s narrow focus on Ministers and permanent secretaries appears weak by comparison to lobbying laws in other countries. Lobbying of MPs and members of the House of Lords, unless they are Ministers, is not subject to registration. Lobbying of Ministers’ principal private secretaries and special advisers is not subject to registration. In fact, lobbying of any government employee below the rank of permanent secretary is not subject to registration.
These significant lacunae mean that consultant lobbyists’ communications with all but the most senior government officials will be unreported.
In-House Lobbying Excluded
Most lobbying is conducted, not by consultants on behalf of clients, but by employees on behalf of their employers and by employees of associations on behalf of association members. Such in-house lobbying is not covered by the Bill.
The Bill does not affect employees who communicate on behalf of their employers, or affect anyone that is primarily engaged “in a non-lobbying business.” The definition of “non-lobbying business” is so broad that a consulting firm will be excluded from the Act unless its activities consist mainly of making communications to government. For example, a consulting firm that offers clients a range of services including media relations, marketing communications and lobbying of government, would only be affected by the law if its activities consisted “mainly” of lobbying.
Content of Register Unknown
As mentioned, the Bill leaves to regulations most questions about the information lobbyists will be required to file in the register.
In some other countries, lobbyists are required to disclose: details of the topics on which they are lobbying; the amounts their clients are paying them; whether someone other than the client is subsidising the cost of the lobbying; and whether a lobbyist has previously held government office. It is unknown whether the Government intends to require, by regulation, that some of this content, or none of it, be included in the register.
No Ethical Rules
Other jurisdictions, including Canada and Australia, have established codes of ethical conduct for lobbyists - requiring them, for example, to be honest in their dealings with government, and not to place Ministers in a conflict of interest. In Ireland, the draft Regulation of Lobbying Bill 2013, currently before the Oireachtas Committee for Finance, Public Expenditure and Reform for pre-legislative scrutiny, would similarly provide for a code of conduct of lobbyists. By contrast, the UK Government Bill would not in any way regulate the behavior of lobbyists.
The Bill also addresses matters unrelated to lobbying: It affects third parties (i.e., people and organisations other than candidates and registered political parties) who campaign in relation to elections, and it amends trade unions’ obligations to update their membership lists. These provisions are beyond the scope of this bulletin.
Consultants and consultancies should examine carefully the legislation, and determine how their businesses are likely to be affected if the Bill becomes law.
Meanwhile, clients of consultants should anticipate and prepare for passage of the law. While the Bill would not affect clients directly, each client has, at minimum, a reputational interest in whether its consultant complies with the law. Standard government-relations consulting contracts do not contain explicit assurances that lobbying transparency laws will be honoured. A client should insist on such language, and on adequate protection in the event of a breach.