House of Commons - Introducing a statutory register of lobbyists

Introducing a statutory register of lobbyists - Political and Constitutional Reform Contents

3 The Government's proposals

THE GOVERNMENT'S DEFINITION OF A LOBBYIST

17. The Government's consultation paper, Introducing a statutory register of lobbyists proposes that a register of lobbyists should include only "those who undertake lobbying activities on behalf of a third party client or whose employees conduct lobbying activities on behalf of a third party client".[17] The Government makes the case that as Ministers already publish details of whom they are meeting there is no need to register in-house lobbyists. However, it claims that "under the current system, when Ministers meet lobbying firms it is not transparent on whose behalf they are lobbying".[18]

18. A majority of our witnesses felt that the Government's definition of a lobbyist was too narrow. Professor Justin Fisher of Brunel University told us "the definition in the Government's proposals is wholly inadequate".[19] Action on Smoking and Health (ASH) added:

the Government's preference is clearly for a register containing only minimal information about lobbying activities and one that would only apply to a minority of lobbyists, those working for agencies and not......those working in-house or for other types of organisations known as 'think tanks'[20]

Professor Raj Chari, co-author of Regulating Lobbying: a global comparison, a comparative analysis of lobbying regulations across the world, told us that the Government's definition of a lobbyist was "pretty narrow from a comparative perspective".[21]

19. Edelman, a public affairs consultancy, also raised concerns that the Government's current definition of lobbyists was ambiguous, stating "the definition of lobbying as proposed includes only direct communications with Government and Parliament. It is unclear whether the act of advising others on such communications would be a registerable activity".[22] The Chartered Institute of Public Relations lamented that the range of questions presented in the consultation paper gave "little or no idea as to the Government's preferred definition".[23]

20. Helen Johnson, Chief Executive of the Association of Professional Political Consultants, told us it was unclear whether only direct representation would be covered by the lobbying register: "as bizarre as it may sound, as the proposals stand currently, it is not clear that the current Chair of the APPC will be required to add herself to this statutory register".[24] Indeed, Mark Adams also told us that he did not believe he would be required to register under the Government's current proposals "because it is about direct interactions on behalf of clients and, on the whole, I don't do that".[25] We recommend that Government clarify whether its definition of lobbying includes lobbying advice, or only direct representation, to avoid confusion regarding who should, and should not register as a lobbyist if it goes ahead with its proposals.

21. The consultation paper also asks whether the definition of lobbying should be broadened to include those who seek to influence policy on behalf of trade unions and charities. Nigel Stanley, Head of Policy and Communications for the Trade Union Congress told us that, while they would broadly accept a widening of the definition of lobbying, they felt that it would be unfair for them to be on a register alongside just third party lobbyists. In his oral evidence he stated:

If it was a list of organisations then, yes, we would be happy to join it. We would be a little resentful, though, if we were singled out as a special category of organisation that needed to be registered when, say, employer organisations—which have a perfectly legitimate role in influencing public policy in the same way that we do, and in many ways are rather analogous—don't have to join that register. I think we would feel a bit cheesed off if that happened.[26]

22. The UK Deans of Science argued that broadening the definition of lobbying would be unfair if it required representative bodies to register alongside professional lobbyists. They stated: "What is of concern to UKDS is that what we consider as legitimate efforts to influence government and any or all political parties could ... put our organisation on a par with professional, paid, lobby companies, thus requiring it to register, possibly pay a registration fee and to be listed alongside those who lobby for a living".[27]

23. Tamasin Cave, transparency campaigner for Spinwatch and the Alliance for Lobbying Transparency, suggested that while defining lobbying was contentious, it had been done before in other countries. She told us: "they've got registers in Australia, Canada, the US and the EU, Germany has one to an extent and Austria is getting one. Nick one of their definitions and we'll start with that".[28]

24. The current definition of lobbying on the UK Public Affairs Council website states that

Lobbying means, in a professional capacity, attempting to influence, or advising those who wish to influence the UK Government, Parliament, devolved legislatures or administrations, regional or local government or other public bodies on any matter within their competence.[29]

This definition is broader than the Government's definition of lobbying as it includes those who advise others on how to lobby as well as those who lobby directly. However, Elizabeth France, Chair of the Council, told us that the definition, while suitable for a voluntary register, was not likely to be robust enough for a statutory register. She told us: "It wasn't drafted by parliamentary counsel and, as it stands, it wouldn't be fit simply to slip into a piece of legislation. But the key thing I would want to emphasise is that it defines lobbying, not lobbyists."[30]

25. The Chartered Institute of Public Relations sent us an exhaustive, technical draft definition of lobbying activity prepared by Berwin Leighton Paisner LLP, that has also been submitted to the Government's consultation. We are not going to endorse any particular definitions of lobbying as the definition may differ depending on the scope of a statutory register. We do not wish to pre-judge the debate. However, we urge the Government carefully to consider all definitions provided to the consultation, as the definition will be key to the success and effectiveness of any future register.

THIRD PARTY LOBBYISTS

26. Many of our witnesses felt that the consultation paper lacked evidence to show why a statutory register of third party lobbyists was more necessary than any other kind of lobbying register. The Government's Impact Assessment includes the UK Public Affairs Council's estimate of the possible coverage of a statutory register of all lobbyists, using the Council's definition of lobbying. The data suggest that a register of third party lobbyists would cover around 100 organisations, who between them would have around 1,000 staff engaged in lobbying.

Table 1: estimated number of organisations involved in lobbying

Type of organisation Number of organisations Employees engaged in lobbying (total)

Public affairs specialists 100 1000

Companies with in-house staff 60 100

Charities/voluntary sector 40 120

Unions 30 50

Trade associations 25 50

Law practices 20 50

Others 130

Total 275 1500

Source: Impact Assessment, Proposals to introduce a statutory register of lobbyists[31]

27. However, we have some concerns about the accuracy of the data in this table. It was suggested that there may be many more in-house lobbyists than the table shows and that the total number of lobbyists may be greater than 1,500. When giving oral evidence, Lionel Zetter, a lobbyist for APCO Worldwide stated that the three self-regulatory bodies for public relations had almost 10,000 members between them.[32] While it is not uncommon for lobbyists to join more than one professional body, it seems likely that the estimate of 1,500 lobbyists across charities, trade unions, trade associations, law practices, in-house and agency lobbyists could be too low. Evidence provided by Spinwatch suggested that "the industry estimates that there are now 3,500-4,000 full-time lobbyists (consultants and in-house) in the UK".[33]

28. The UK Public Affairs Council Register, which contains details of those registered by the Chartered Institute of Public Relations and the Association of Professional Political Consultants, lists 1,387 individual lobbyists for the period 1 December 2011 to 29 February 2012.[34] The Government's impact assessment admits that "although the UK Public Affairs Council ... has held a voluntary register since 2010, registration rates remain low".[35]

IN-HOUSE LOBBYISTS

29. Under the current proposals, lobbyists working in-house for a range of organisations, from large commercial organisations like Tesco, to trade associations like the Confederation of British Industry, to large charities like Friends of the Earth, would not be required to register as lobbyists. However, if any of these organisations then retained a lobbyist or lobbying firm, they would be listed on the register as a client.

30. The Government's proposals state that there is no need for in-house lobbyists to register as

the Government already publishes quarterly information about Ministers meetings. Information about which stakeholders are meeting Ministers to put forward their views on policies is therefore already in the public domain. But under the current system, when Ministers meet lobbying firms it is not transparent on whose behalf they are lobbying.[36]

The UK Public Affairs Council stated that "this argument is fundamentally misconceived because it is based on a misapprehension of how public affairs consultancies normally conduct their business".[37] It highlighted that many public affairs consultancies provide mainly monitoring and advice, and that "rarely, if ever, do the services include making representations directly on behalf of the client".[38]

31. The Minister for Political and Constitutional Reform, Mark Harper MP, told us that in-house lobbyists had not been considered for the statutory register as it was clear who they were, when they met Ministers. He added:

if a minister meets an external organisation, and it is from an in-house lobbyist, we say, 'The minister is meeting a man from Tesco'—just to pick someone at random—and it is clear that you are meeting someone from Tesco. If you say that you are meeting someone from a lobbying company, it is not entirely clear. That lobbying company could be acting for any organisation.[39]

However, Unlock Democracy a transparency campaign group, demonstrated that even smaller organisations can lobby Government on a wide array of issues. They stated that unless the topic was disclosed when the meeting was published it would be impossible to know the subject of the discussion:

Unlock Democracy is currently lobbying the Cabinet Office on a number of different policy areas. If we were to have a meeting with Mark Harper it could be about individual elector registration, House of Lords reform, lobbying, boundary changes, or other democratic reform issues that we may wish the Government to pursue. This would not be apparent just from the fact that he was meeting us.[40]

32. The Minister stated that when a meeting with a Minister or official is disclosed, the topic being discussed is revealed. However, an analysis conducted by The Independent in January 2012 concluded that "more than 700 are simply reported as 'introductory' meetings and 350 are described as general 'catch-up' or 'discussion'".[41]

A STATUTORY CODE OF CONDUCT

33. The Government proposes that a statutory register of lobbyists would not require an accompanying statutory code of conduct. The consultation paper states:

The Government supports the industry's efforts to improve lobbying practice, and to develop a code of conduct that helps lobbyists perform to the highest possible standards. However, it thinks that this is a matter for the industry itself, not for the operator of the register. The register should be a register of activity, not a complete regulator for the industry.[42]

The consultation paper states that a statutory code of conduct is unnecessary because it "would impose costly and unnecessary regulation on the industry, their clients and the Government".[43]

34. Concerns were expressed that a statutory register without an accompanying statutory code of conduct could lead to less regulation of the lobbying industry. Ben Kernighan, Deputy Chief Executive of the National Council for Voluntary Organisations, said of the Government's proposals:

We think that the Government has missed an opportunity in its proposals in taking a wider look at lobbying, which may have led to a greater increase in public trust and confidence, and there are two key things that we think are missing. One is setting out clear standards of professional conduct for lobbyists, and the other is making it clear who is lobbying whom.[44]

35. Elizabeth France, Chair of the UK Public Affairs Council, agreed that the lack of a statutory code of conduct could lead to less regulation of lobbying:

let's assume there is a fee to pay to join the statutory register, and you are a small lobbying firm and you have to decide whether you can afford both to go on the statutory register, which you must go on, and join a professional body that has a professional set of standards and a code of practice you must adhere to. If we are not careful, the second is going to become a luxury and we are going to end up with fewer people. However, an unintended consequence could be that you get fewer people signing up to bodies that have ethical standards and codes of practice."[45]

Mark Ramsdale, a lobbyist and former Secretary to the UK Public Affairs Council, stated: "a register without any adherence to these, or other suitable codes offers a retrograde step for the industry".[46]

36. The Government's proposals have similarities with Australia's register of lobbyists, which came into force on 1 July 2008. The Australian register requires only those who "conduct lobbying activities on behalf of a third party client or whose employees conduct lobbying activities on behalf of a third party client" to be registered.[47] Charitable, religious, non-profit organisations and individuals who lobby the Australian Government are not required to be on the statutory register. Individual lobbyists are required to list their name, their position, whether they are a former public official, and if so, when they ceased to be a public official.[48]

37. However it is important to note that the Australian register also has an accompanying statutory code of conduct. The only sanction for breaching the terms of the code is removal from the register, but Government representatives are not permitted to meet with any lobbyists who are not on the statutory register.

38. Elizabeth France told us that a hybrid model of conduct, where registered lobbyists abide by the code of conduct of their profession, but make it clear which professional body can be contacted if there is an allegation of improper behaviour, could help to ensure that those who lobby could be held to account without a statutory code of conduct:

one way would be to have a hybrid where the register showed whether a particular entrant on the register was signed up to a code of practice, which code of practice and who enforced it. So if you were a member of the APPC or the CIPR, or perhaps if you were a lawyer regulated by the Solicitors Regulation Authority but you were a public affairs consultant, maybe you could put that on the register and then it would be clear to people which body was making sure you behaved ethically and held you to account.[49]

39. If the Government is convinced that a statutory code of conduct would be burdensome, a hybrid code of conduct is a viable alternative, as it would make it clear to whom organisations on the register could be held accountable. However, the main disadvantage of a hybrid model would be that organisations on the register would be held accountable to different sets of professional standards. There may be some organisations, such as think tanks, and campaign groups, which might not be members of a professional body that require them to sign up to a code of conduct. We recommend that Government looks further at the hybrid model for a code of conduct for lobbyists. If Government decides on a hybrid model, it needs to consider what provision it will make for organisations that are not already a member of a professional body with a code of conduct.

HOW EFFECTIVE ARE THE GOVERNMENT'S PROPOSALS?

40. It was suggested that the proposed statutory register was being introduced as an 'easy win' for the Government. Mark Adams, lobbyist and author of the blog standup4lobbying stated of the proposals: "it is a box-ticking exercise to deliver something that the Conservatives agreed with the Liberal Democrats as the price of forming the coalition".[50] Other witnesses raised similar concerns about the Government's motive for a statutory register. Tamasin Cave, campaigner for Spinwatch and the Alliance for Lobbying Transparency, stated that, "the Government have made up a problem to fit the solution that they have".[51] The Whitehouse Consultancy agreed, stating:

whilst officials have drafted the Consultation Paper in such a way as to appear that many issues are still open for discussion, the fundamental principles (rejection of a Statutory Code, a misplaced trust in UK PAC, a naive respect for industry self-regulation, a narrow definition of lobbying etc) have clearly been decided in advance and in many cases are not sensible."[52]

41. The Government seems to have united both the lobbying industry and transparency campaigners in condemnation of its proposals for a statutory register. Francis Ingham, Chief Executive of the Public Relations Consultants Association, told us "Regarding the document itself, it is a kind of grubby little document really. It has 'compromise' stamped all over it".[53] The Chief Executive of the National Council of Voluntary Organisations, Sir Stuart Etherington, said the Government's plan for a statutory register was "so weak now there's no point us joining it".[54] Justice in Financial Services put their opinion very simply: "the proposals in the consultation document Introducing a statutory register of lobbyists fail".[55]

42. The advantages of the Government's proposals are that it would be simple to administer, and the narrow definition of a lobbyist makes it clear that only third party lobbyists should be registered. However it is not clear from the Government's current definition of lobbying whether public affairs consultancies who provide advice to clients but do not represent them in meetings with officials or Ministers, would have to be registered. The Government's proposals as they stand would not require any money from the public purse as the Government proposes "that the cost of running the register and the ancillary costs arising from it should be met on a self-funding basis by the lobbying industry".[56]

43. However, the disadvantages of such a system are many. Dr Raj Chari, co-author of Regulating Lobbying: A global comparison, stated that countries with lobbying regulations which are characterised as low regulation are "window dressing. It looks good but its effectiveness, in terms of regulating lobbyists, can be considered wanting".[57] As the proposed register will also not require any additional features, such as a requirement to disclose the issues lobbied on, the public would know who had engaged a lobbying firm, but not why. This could cause public disillusionment with the register. Spinwatch stated that: "the Government's proposals for a statutory register of lobbyists are fundamentally flawed, and will deliver little more than the system of voluntary self-regulation that currently exists".[58]

44. Rob McKinnon, the founder and operator of Who's Lobbying, a website that collates and presents data on ministerial meetings, pointed out that according to the Who's Lobbying database, Ministers' meetings with third party lobbyists were a very small percentage of ministerial meetings:

In the Who's Lobbying database I have almost 8,000 meetings that were declared by departments. Of those, at present only 18 of those meetings included a lobbying firm. That is less than a quarter of a percent of all of the government meetings. In comparison, law firms have twice as many at 34 meetings, which is about 0.4% of government meetings. Organisations that are in Wikipedia's political and economic think-tanks category have had 163 declared meetings with government, which is about 2% of the meetings I have in my database. We can see that in comparison think-tanks have almost 10 times as many meetings with ministers.[59]

45. We also heard from several witnesses that a lack of transparency surrounding third party lobbyists was not a significant enough problem for third party lobbyists to be singled out as the sole signatories to a statutory register. Professor Justin Fisher, of Brunel University, told us "there is no evidence whatsoever that multi-client agencies are a particular problem. The differentiation between them and lobbying by in-house, charities and so on, such as NGOs, is irrelevant".[60] Dr Raj Chari, told us: "of all lobbyists that are in the UK, what percentage do professional consultancies represent? I don't know the specific data, but in other jurisdictions it would be around 10% to 15%, and that is a very small percentage of all lobbyists".[61]

46. A statutory register would be likely to solve the problem the Government poses, as it would allow the public to see the clients of lobbying firms. However, we question whether a lack of transparency over third party lobbyists in particular is as great a problem as the Government claims. We consider that the current proposals for a statutory register of lobbyists will do nothing to resolve wider public concerns about a lack of transparency around who is meeting whom.

47. The consultation paper is lacking in clear intent from the Government, and only limited evidence is put forward to support its proposals. We conclude that a statutory register which includes only third party lobbyists would do little to improve transparency about who is lobbying whom, as these meetings constitute only a small part of the lobbying industry. The Government's proposals only scratch the surface when it comes to tackling public concern about undue access and influence over the policy making process, and they are unlikely to prevent lobbying from becoming the "next big political scandal".

48. We recommend that the Government scrap its proposals for a statutory register of third party lobbyists. It is our view that the proposals in their current form will do nothing to improve transparency and accountability about lobbying. Imposing a statutory register on a small part of the lobbying industry without requiring registrants to sign up to a code of conduct could paradoxically lead to less regulation of the lobbying industry.

17 HM Government, Introducing a Statutory Register of Lobbyists, January 2012, p9 Back

18 HM Government, Introducing a Statutory Register of Lobbyists, January 2012, p9 Back

19 Q 32 Back

20 Ev w1 Back

21 Q 331 Back

22 Ev w64 Back

23 Ev 108 Back

24 Q 167 Back

25 Q 87 Back

26 Q 269 Back

27 Ev w56 Back

28 Q 65 Back