The Government yesterday published the draft “Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill” in the wake of heated Parliamentary debate and press criticism regarding the role of lobbyists and the need for reform. The Bill has immediately been criticised for being too limited in scope on the basis that it will only apply to people whose main business is lobbying, although the sanctions contained in it perhaps go further than was generally expected. Therefore, while the Government has clearly felt pressured to take steps to demonstrate its commitment to transparent decision-making, many critics consider that the draft Bill does not go far enough.
The issue of lobbying has been on the agenda since the last general election. The “Coalition’s programme for Government” contained a commitment to “regulate lobbying through introducing a statutory register of lobbyists and ensuring greater transparency”. It has taken three years for this commitment to translate into a draft Bill.
The Bill makes it illegal for a person to carry out “consultant lobbying” unless they are entered in the register of consultant lobbyists. A person engages in “consultant lobbying” if they make “communications” - that is oral or written communications made personally - to a Minister or permanent secretary, but not to a department generally. To be captured, these “communications” should relate to: developing, adopting or modifying proposals or policies; making or taking steps in relation to contracts, grants or licences; or exercising “any other function of the Government”. Those who carry on a business that is mainly a “non-lobbying business” are exempt from the registration requirements, as are those for whom lobbying is an “insubstantial proportion of that business“. As such, the Bill will cover third-party consultant lobbyists but not in-house lobbyists, charities, non-profit lobbyists, trade unions, PR agencies, law firms, accountancy firms or management consultancies.
Those who are caught by the Bill will have to provide basic information about their business to be included on the register, and will have to file information returns on a quarterly basis detailing their client information (ie those who have received or paid for lobbying services during that period). The Registrar, who is responsible for publishing and keeping a record of lobbyists, may also request information by means of information notices.
The sanctions envisaged gby the Bill are serious. It will be a criminal offence to carry on the business of consultant lobbying while unregistered, to fail to submit an information return, or to fail to provide accurate information in response to an information notice. There is also provision for the Registrar to impose civil penalties although – perhaps surprisingly – the Bill specifies that where civil penalties have been imposed on a person, they cannot also be guilty of a criminal offence. It seems possible that this may encourage lobbyists who are concerned that they are in breach of the law tactically to seek a civil penalty in order to avoid a possible criminal conviction.
The single biggest criticism emerging from the responses to the Bill in the press is that too few lobbyists have been captured for the legislation to have any meaningful impact. According to the Political and Constitutional Reform Committee, third party lobbyists make up only 1% of all meetings with Ministers. Moreover, only third-party lobbyists who directly lobby Ministers or permanent secretaries are covered by the Bill, which potentially restricts its application still further. Francis Ingham, Director General of the Public Relations Consultants Association, has described the Bill as “unfair and unfit for purpose“. Ingham points out that none of the lobbying “scandals” in the press recently has involved “real lobbyists“.
The Government will no doubt point to its Impact Assessment in which it concluded that implementing a statutory register of in-house and third-party lobbyists would cost twice as much as a consultant-only register. However, given the timing of the Bill and the fact that the lobbying proposals have been lumped in with other measures, such as restrictions on the political activities of trade unions, many commentators feel that the Bill is a panacea, attempting to deflect attention from the Government and may do little more than the current system of self-regulation to tackle abuses of lobbying.
While an active lobbying industry may be taken as a sign of a healthily functioning democracy, the Impact Assessment asserts that there remains “public concern that some lobbying activity is opaque, allowing some to exert a hidden, sometimes inappropriate, influence on Government”. However, whether this perception is correct – and whether the Bill is targeting the type of behaviour that has caused concern – is far from certain. The Bill is still in the early stages of its progress through Parliament, and it will be interesting to see whether the criticisms already being expressed will lead to any substantive changes to the legislation. Critics of the Bill would be well advised to get lobbying.