Political and Constitutional Reform CommitteeWritten evidence submitted by Dr Conor McGrath


1. It may be helpful if I briefly outline my career experience, as I approach the issue of lobbying regulation with the dual perspective of having been both a lobbyist and an academic researching lobbying. From 1991 to 1999, I was a public affairs consultant in Westminster, first at a small agency and then as a self-employed freelancer. Between 1999 and 2006, I was a lecturer in political lobbying and public affairs at the University of Ulster and course director of an MSc programme of the same title. I have recently established a new consultancy—Conor McGrath Public Affairs—based in Dublin (though the marketing efforts I will begin shortly are likely to focus primarily on clients based in the UK and US). In the interests of full disclosure, I am a member of a number of relevant professional associations:

Chartered Institute of Public Relations: I have been a full member since 1999, and a member of CIPR Public Affairs (formerly its Government Affairs Group) since 1991. As a requirement of my CIPR membership, since establishing my own consultancy I have also signed up to the register of lobbyists held by the UK Public Affairs Council.

Northern Ireland Government Affairs Group: I was (in 1999) the founder and first Chairman of this body, which acts as a forum in which local lobbyists could exchange professional experiences and serves as the representative body for the industry there.

European Centre for Public Affairs: I was a member from 2005 to 2010 of the Management Board and of the Research & Publications Committee (and Secretary from 2005 to 2007 and Chairman from 2007 to 2008 of the latter).

2. I should stress that while my views on the regulation of lobbyists are certainly informed by my academic work, they are fundamentally rooted in the fact that as I prepare to become a lobbying practitioner again, I will myself be subject to whatever system of registration and regulation is ultimately enacted. I firmly believe that it is in my professional self-interest for regulation in the UK to be as rigorous as possible, and indeed hope that the Government will take this opportunity to go well beyond its existing proposals and further strengthen the system which emerges from this consultation exercise. Some of those engaged in this debate would prefer that the issue of lobbying regulation is placed squarely within the sphere of the political elite. The Chartered Institute of Public Relations, for instance, has asserted that: “It is in the interests of the public affairs profession itself, and of Parliament alike, for self-regulation to work” (PASC, 2009b, p 146). This, though, utterly ignores the question as to whether self-regulation by lobbyists is in the public interest. Lobbyists must begin to recognise that the role they play in the policymaking process makes their activities a legitimate subject of public concern; they can no longer avoid exposing themselves to greater transparency and accountability. The Government—to say nothing of clients and employers—should be wary of any lobbyist arguing for weak or non-mandatory regulation for in doing so they are seeking to serve their own supposed self-interest rather than the public interest.

3. I have written extensively on aspects of lobbying regulation, and would be more than happy to provide the Committee with any of the following work if that would be helpful:

McGrath, C (2011) “Lobbying in Ireland: A Reform Agenda”, Journal of Public Affairs, 11(2), pp 127–34.

McGrath, C (2010) “Lobbying Regulation: An Irish Solution to a Universal Problem?”, pp 215–34 in Hogan, J, Donnelly, PF, and O’Rourke, BK (eds.) Irish Business and Society: Governing, Participating & Transforming in the 21st Century. Dublin: Gill and Macmillan.

McGrath, C (2010) “Barack Obama and Lobbyists: An Inconsistent Record?”, paper presented at the annual meeting of the American Political Science Association, Washington DC.

McGrath, C (2009) “The Lobbyist with ‘Balls of Iron and a Spine of Steel’: Why Ireland Needs Lobbying Reform”, Journal of Public Affairs, 9(4), pp 256–71.

McGrath, C (2009) “Access, Influence and Accountability: Regulating Lobbying in the UK”, pp 53–123 in McGrath, C. (ed.) (2009) Interest Groups and Lobbying in Europe. Lewiston, NY: Edwin Mellen Press.

McGrath, C (2008) “The Development and Regulation of Lobbying in the New Member States of the European Union”, Journal of Public Affairs, 8(1/2), pp 15–32.

McGrath, C (2007) “Lobbying and the 2006 US Midterm Elections”, Journal of Public Affairs, 7(2), pp 192–203.

McGrath, C (2006) “Lobbying and Public Trust”, pp 73–80 in Spencer, T. and McGrath, C (eds) Challenge and Response: Essays on Public Affairs and Transparency. Brussels: Landmarks.

McGrath, C (2005) “Towards a Lobbying Profession: Developing the Industry’s Reputation, Education and Representation”, Journal of Public Affairs, 5(2), pp 124–135.

McGrath, C (2005) Lobbying in Washington, London, and Brussels: The Persuasive Communication of Political Issues. Lewiston, NY: Edwin Mellen Press.

4. Before I address the detail of the consultation paper, I would like to offer a few general points to place my particular suggestions in context. Lobbying has matured into an important and vibrant industry; however, it remains a long way from achieving public recognition and acceptance as a profession. One of the key challenges for the industry today is to meet the legitimate public and official need for greater transparency and accountability. The reality is that lobbying remains secretive and closed to external scrutiny, even at the same time as it exerts a significant influence over the formulation and implementation of public policy. I would suggest that the Government keeps at the forefront of its consideration a number of fundamental questions which go to the heart of the industry. Is access to the policymaking process available on an equitable basis? Are relationships between government and outside interests conducted appropriately? How can we be confident that influence does not become undue influence? The public, media and academics are largely excluded from the lobbying world, and thus find it difficult to assess its scale, effectiveness and probity. By contrast, the regulatory system which operates at the federal level in the United States “enables interested parties to discern trends and patterns of interest representation,” and thus provides “a relevant and reliable tool that enables proper scrutiny of the role of lobbying and thus helps to improve the quality of democratic decision-making” (Spinwatch evidence at PASC, 2009b, p 223). Academics are somewhat divided over the effect of lobbying regulation—some rational choice theorists (Brinig et al, 1993; Ainsworth, 1993) suggest that regulation here as in other fields of activity should be regarded as constituting a barrier to entry, so that as lobbying regulation increases in severity some interest groups will as a result decide that the costs of regulation are such that it is preferable not to lobby and thus rule themselves out of any registration scheme. Others (see Hamm et al, 1994) argue that the more rigorous a regulatory model is, the more lobbyists will be “captured” by it and so there should be increased levels of registration. My own view is informed more by research conducted by Gray and Lowery (1998) pointing towards a middle ground—regulation appears to have minimal impact upon the number of groups which register lobbying activity, but rather serves to provide a fairly reliable census of the lobbying community and thus contributes to making lobbying more transparent and accountable. The perfect lobbying regulation does not exist anywhere, but some regulation is always better than none—and a well-crafted framework which provides for meaningful disclosure by all lobbyists is the least that a transparent democracy demands.

5. I believe it is appropriate to take this opportunity—as indeed all lobbyists should seize every opportunity—to assert the view that lobbying is an honourable and legitimate activity. Too often, lobbyists fail to defend and promote their industry and thereby allow others to define lobbying as unsavoury or corrupt. I personally see one of the great benefits of regulation as being that it offers lobbying a necessary first step on the path towards enhanced public acceptance and recognition of their work. Misperceptions about the nature and role of lobbyists make it difficult for lobbyists themselves to explain what they do and how that work contributes to democratic policymaking. Lobbyists should from now on be willing to become more vocal in articulating the value of their services—not simply to their client or employer, but to policymakers and the wider public policy arena. It is through the effective representation of socio-economic interests that we enjoy vibrant and pluralistic public policy discourse. The formulation of sensible and well-balanced policy absolutely depends upon the provision of insightful data and perspectives from those groups which are most affected by any particular legislation or regulation. The opening paragraph of the PASC report acknowledges the important role played by lobbying: “The practice of lobbying in order to influence political decisions is a legitimate and necessary part of the democratic process. Individuals and organisations reasonably want to influence decisions that may affect them, those around them, and their environment. Government in turn needs access to the knowledge and views that lobbying can bring” (PASC, 2009a, p 5). Lobbyists are central to the debates which shape all our lives, and ought to demonstrate leadership in framing public attitudes towards the industry.

Questions Posed by the Committee

6. If I may, I should like to outline only very briefly here answers to the specific questions which the Committee has posed regarding the consultation process, although I then go on below to detail at greater length my views about the substance of a future regulatory scheme:

Does the Government’s consultation paper represent a balanced approach to the idea of a statutory register? Frankly, I take the view here that the Government’s consultation exercise has been mishandled throughout. The written evidence already presented to the Committee by SpinWatch details the one-sided nature of the Cabinet Office’s engagement with interested parties up to this point. I do not believe that the Government has an open mind on what legislation will result at the end of this process; I do not believe that the Government’s clearly preferred options are the correct ones; and I do not believe that the path which the Government intends to take will do a great deal to meet its stated objective of enhancing transparency.

Does the consultation paper contain the right questions? The Government has unfortunately chosen to frame the issues in such a way as to entirely skew the outcome. It focuses on a small number of supposed problems and solutions which bear little relation to the reality of the lobbying industry. The Government repeatedly seeks to narrow debate on the central questions around who should be regarded as a lobbyist, what material they ought to disclose, and how the regulatory system should operate.

Which lobbying contacts are of greatest legitimate public interest? Personally, I find it difficult to comprehend why the Government is so insistent that it is only necessary for perhaps one-quarter of the lobbying industry to be registered. What is needed if regulation is to have any impact on public confidence in the integrity of the policymaking process is for all lobbying contacts to be registered. Incidentally, I should stress now—although this point will be evident throughout my submission—my view that the debate ought to be about regulation of the lobbying industry not merely registration. What is important is that mechanisms are developed by which to enhance ethical standards; what the Government proposes is little more than a marketing directory.

How should the Government deal in policy and practice with how it might be lobbied on the issue of a statutory register of lobbyists? How should the Government analyse the consultation responses, and seek to balance the weight of opposing argument? Unfortunately, the Government’s record to date of listening to opposing views on this issue has been disgraceful. If its consultation process is to be credible, the Government will need urgently to begin demonstrating that it is willing to at least engage with alternative perspectives.

Do you have any comments on how any proposals emerging from the consultation should be implemented? If the Government presses ahead with its current proposals, it will hardly matter how this is implemented—it will scarcely differ from the existing system of voluntary self-regulation which is virtually worthless. However, I discuss below how I believe an effective and useful registration and regulation system could be managed.

Red Herrings to be Guarded Against

7. The consultation paper provides some evidence that the Government has already allowed itself to be persuaded by various red herrings offered by those who seek the weakest possible form of regulation:

Regulation could impinge upon the ordinary right of the citizen to contact their elected representatives. This is something of a smokescreen in my view—I know of no evidence from any nation with lobbying regulation that this has actually occurred. All that is required is that the statutory definitions of “lobbying” and “lobbyist” are written clearly (perhaps by including a reference to lobbyists being paid or employed to lobby) so that citizens acting on their own behalf rather than as a function of their employment are explicitly excluded from the scope of regulation. The consultation paper is concerned not to impede the “essential flow of communication” between external interests and government (Cabinet Office, 2012, p 9). We have here an example of the sort of irregular verbs with which Bernard Woolley was so adept in Yes, Minister—“I engage in the essential flow of communication; you are a lobbyist; they are corrupt despoilers of democracy.” Any direct communication between a lobbyist and a policymaker must constitute lobbying: there ought to be absolutely no difficulty here.

Registration is burdensome and bureaucratic. Many lobbyists privately assert the danger of creating an “expensive bureaucracy”, and the consultation paper talks of regulation as “an obstacle … and undue burden” and as “costly and unnecessary” (Cabinet Office, 2012, pp 9 and 10). This ignores the fact that lobbyists in other jurisdictions apparently are able to register without undue difficulty. Most lobbying organisations presumably already hold the records of their lobbying activities and expenditure in the normal course of their internal operation and accounting. It is likely that the time involved in preparing this information in whatever form would be specified by a new regulatory regime would not be onerous—and certainly the benefits to wider accountability and transparency disproportionately outweigh the costs to each lobbying organisation.

Voluntary self-regulation can adequately provide for the imposition of penalties against those who breach internal codes of conduct. In its consultation paper, the Government asserts that the setting of ethical standards is “a matter for the industry itself, not for the operator of the register” (Cabinet Office, 2012, p 15). The groups representing lobbyists can argue that self-regulation is not merely a pragmatic compromise or necessary evil, but rather that it represents a sincere attempt by professionals to uphold consistent and appropriate standards of behavior. The establishment of the APPC was a commendable and responsible reaction to scandals by those consultancies which were keen to defend the ethical conduct of lobbying. The APPC is in large part the reason why the political consultancy sector in the United Kingdom is as effective as it is, and for that it deserves credit. Self-regulation, however, is inevitably problematic—it applies only to those firms or practitioners who choose to join the groups which make up UKPAC; it is self-regulation by the lowest common denominator; it is essentially toothless in terms of enforcement; and it creates little new information accessible by the general public. As the APPC itself notes, “The activities of political consultants account for only a very small part of the lobbying world” (PASC, 2009b, p 139). Why then should a regulatory scheme be built around the self-regulation model preferred by the APPC/UKPAC rather than introducing a mechanism capable of encompassing all lobbyists?

Establishing the Purpose of Lobbying Regulation

8. It would be helpful if the Government clearly and explicitly stated what problem a system of lobbying registration is designed to address. From this, all else then follows. If the problem is illegal/corrupt behaviour, that suggests one set of answers. If the problem is that some lobbyists are regarded as less worthy than others, then an alternative system may be more appropriate. In my view, the fundamental problem is a lack of public transparency and the regulatory mechanisms which are established should be directed towards the following formulation:

“Who is attempting to influence whom, on whose behalf, over which public policy issue, through which means, and using what resources?”

If we end up with a model of regulation which enables the citizen to answer that question, the UK will then have a system which is fit for purpose by making lobbying more transparent and policymakers more accountable.

9. That sort of level of disclosure would in my view be entirely appropriate and benefit all stakeholders (Cohen-Eliya and Hammer, 2011; Holman and Luneburg, 2012):

Policymakers can more easily determine which groups have lobbied on a particular issue and are thus in a better position to assess whether an equitable range of views have been taken into consideration during the policy formulation process.

Lobbyists currently spend a great deal of time simply trying to discover which of their competitors have been active on an issue, and would more easily be able to determine whether it was necessary to attempt to counteract such lobbying which would otherwise be conducted in secrecy.

The public could be better reassured that policymaking was conducted in an open and legitimate manner free from any appearance of corruption.

The Scope of Lobbying Regulation

10. If the experience of lobbying regulation in other nations has any lessons applicable to the UK, the first of these is surely that neither voluntary regulation nor self-regulation are effective. In the United States, the 1946 Regulation of Lobbying Act established that those whose principal purpose was to influence legislation were required to register with congressional authorities, providing fee income and lobbying expenditure as well as details of the specific legislation which was being lobbied on. The obvious weakness here was that most lobbyists simply decided that lobbying was not their principal purpose, but merely secondary to whatever other services they provided, and as a result only perhaps one-quarter of all lobbyists chose to register. Similarly, only a minority of Brussels lobbyists voluntarily register under the European Transparency Initiative scheme. In the UK, the consultancy sector has made what I regard as a genuine effort to provide for self-regulation through the formation of the Association of Professional Political Consultants (APPC). However, it undeniably suffers from the reality that not all consultancies choose to join the APPC, and even if all did, they would represent only something in the region of one-quarter of the total industry.

11. Universal coverage of the lobbying industry is essential to the public interest going forward into the future. The benefits of regulation—to policymakers, to the public, and to lobbyists themselves—should encompass the entire industry, and that is simply not possible through voluntary self-regulation. It can only be achieved by creating a common system which encompasses all those who engage in lobbying, irrespective of the type of organisation at which they work: not just commercial consultants, but also dedicated in-house lobbyists; not just business interests but also law firms, management consultants, trade unions, campaigning bodies and pressure groups, churches, charities, NGOs and public sector bodies. If it is appropriate for consultants to be subject to some form of regulation, it is clearly appropriate for all others who are engaged in lobbying to similarly be regulated. As the Committee on Standards in Public Life puts it, “to be properly effective, cross-industry self-regulation standards … need to apply to all main players” (PASC, 2009b, p 188). The difficulty here is that only a mandatory system can realistically encompass all lobbyists. Pross asserts (2007, p 33) that: “while it may be possible to mount a lobby registration scheme on a voluntary basis, in the final analysis its success will depend on a level of enforcement that can only be achieved at the governmental level. Only government has the authority to require lobbyists to divulge information. Only government can require officials to report the failure of lobbyists to comply with the rules. Only government can investigate such failures and prosecute breaches of the rules. Only government can impose sanctions such as the denial of access.”

12. If the purpose of a lobbying register is indeed as I have defined it in para. 8 above, then that objective can only be met through a statutory—mandatory—register of all professional lobbyists. The Government would do well to heed the PASC report, which thoroughly dismissed the idea of a voluntary register on the grounds that unless registration is compulsory then those “who wish to hide the nature and scale of their activity” (PASC, 2009a, p 52) could continue to do so. Anything short of full coverage would result in “uneven and partial information of no real benefit to those wishing to assess the scale and nature of lobbying activity” (PASC, 2009a, p 52). The public interest in exposing lobbying to the glare of publicity requires that all lobbying is conducted under equal conditions of transparency. It is vital, in my view, that the Government focus its attention on “paid lobbyists” rather than on “paid consultants”. I believe it would be a tragic mistake if the Government were to arbitrarily decide that some lobbying (by commercial consultants) is “bad” and other lobbying (by firms and civil society) is “good”. Frankly, many charities are better resourced in terms of public affairs than many companies. The true value of a register is that it could record all lobbying activity across all policy issues by all those interests which seek to influence government on a professional basis. Anything less than that will inevitably drive lobbyists to find ways of avoiding registering, and will fatally undermine any chance that regulation can help to promote public confidence and trust in the wider political system.

Defining “Lobbying” and “Lobbyist”

13. What particular activities, then, should be regarded as constituting “lobbying” and thus subject to registration? It should be noted that there is scope for a legitimate and honest debate around this point, and that such debates have indeed stalled efforts at lobbying regulation in other jurisdictions in the past. As Greenwood and Thomas (1998, p 489) note, “Many legislative attempts to regulate lobbying have foundered on definitional terms.” Any system of regulation which aims to be both meaningful and fair must apply to all those who seek to influence public policy on a professional basis. Analyzing a range of definitions used in various jurisdictions, Pross (2007, p 15) notes that definitions are the foundation of a regulatory regime, and must be “clear and unambiguous… and robust enough to support legal challenges.” One clear lesson to be learned from the experience of the European Transparency Initiative derives from the evident mismatch between an academic analysis on the one hand showing that the system is almost at the bottom of a “league table” of worldwide regulatory regimes in terms of its severity or rigor (Chari et al, 2010), and on the other hand the experiences of many Brussels lobbyists who have genuinely struggled to know how best to register. Both perspectives are correct—ETI is relatively lax in that it is voluntary and is associated with only weak incentives to register, but equally the fact that the European Commission chose to leave it up to practitioners to decide what information to register means that lobbyists in Brussels must arrive at their own methodologies for determining what to count and not count. Perhaps, even if counter-intuitively, the more tightly-defined a regulatory regime is the easier in practice it is for lobbyists to comply with.

14. It is of course worth noting that the challenge of formulating acceptable legal definitions of “lobbying” and “lobbyist” is one which a number of other jurisdictions have already managed to overcome, and naturally the Government will want to examine these carefully. Most lobbyists work in-house rather than in consultancies; most do not have the word “lobbyist” in their job title; many will have other functions in addition to lobbying. Many people will spend only a small fraction of their time on lobbying activities, yet their interventions could be crucial to the outcome of a policy decision. In my view, the most crucial issue is to arrive at an explicit statement of what constitutes “lobbying”—once that is established, then all those who undertake “lobbying” on a professional basis can be regarded as “lobbyists”. The Government has considered a range of definitions employed in the United States, Canada, the EU and Australia. Perhaps it might be useful if I draw the Committee’s attention to the discussion around this issue which is currently taking place in the Republic of Ireland. The coalition Government in Ireland consists of two parties—Fine Gael and Labour—both of which have in the past published detailed proposals on the regulation of lobbying: Fine Gael (2010) has published a draft Open Government Bill which includes provision for lobbying regulation, while the Labour Party (2008) did unsuccessfully introduce a Registration of Lobbyists Bill. The Irish Department of Public Expenditure and Reform has held a consultation exercise which closes on 29 February 2012, and intends to introduce legislation later this year.

15. Lobbying is defined as either “communication with a public official” or “arranging a meeting or other form of communications between a public official and any other person” in an effort to influence policy (Fine Gael, 2010, p 76). This narrow definition, in my view, excludes too much activity. I would suggest that UK legislation ought to recognise that “lobbying” can also include the whole range of preparatory work which all lobbyists undertake prior to actual direct communication. One of the clichés of lobbying—but no less valid for that—is that every hour of direct contact first requires 10 hours of background research. For instance, the UK Public Affairs Council’s (no date) definition of public affairs states that it includes the provision of “lobbying or advice on lobbying” and “services with intent to assist lobbying, including the provision of monitoring, public affairs and programme support, strategic communications advice, profit raising, decision-making analyses and perception auditing services”. Any legislation which is ultimately introduced would be significantly strengthened if its scope was widened such that this type of activity was captured by the definition of “lobbying”. Communication with a public official is defined in the Fine Gael draft Bill (2010, p 76) as lobbying if its purpose is “an attempt to influence” a legislative proposal by a Minister, TD or Senator; or the “introduction, defeat, passage or amendment of any Bill or resolution” in the Dáil or Seanad; or the “making, revocation or amendment” of a statutory instrument; or the “development or amendment of any policy or programme of a public body”; or “the awarding of any contract, grant, contribution or other benefit by or on behalf of a public body”. Public officials are said to be (Fine Gael, 2010, pp 75 and 76–77) Ministers, TDs, Senators, the Attorney General, staff employed by TDs, Senators or political parties, ministerial special advisers, and the directors of public bodies. One glaring omission from this list is that civil servants are not defined as public officials and thus communicating with them would not constitute lobbying under the terms of the draft Bill. By contrast, the Labour Party Bill included the phrase “a person who occupies a position of employment in a public body” and defined public bodies as including government departments (2008, p 4), so that civil servants were included.

16. The Fine Gael text defines a “lobbyist” as “a person who engages in, or assists a person who engages in, lobbying” (2010, p 76). That would seem to suggest that, for instance, a lobbyist’s secretary who types their letters to TDs is assisting in lobbying and therefore is also considered to be a lobbyist, which presumably is not what the party actually intends. It may be that substituting the word “advises” instead of “assists” would better capture the sense of including those who actively engage with the policymaking process. So, for example, the UK Public Affairs Council (no date) defines lobbyists as “those who, in a professional capacity, work to influence, or advise those who wish to influence, the institutions of government”. The UK Government argues that the UKPAC definition is insufficiently rigorous as it would unnecessarily capture those who advise lobbyists (Cabinet Office, 2012, p 22). However, the Government reaches this view by quoting only part of the UKPAC definition. In the consultation paper (Cabinet Office, 2012, pp 21–22) the Government fails to note that UKPAC defines advisors not simply as “those who provide any services to lobbyists” but much more tightly as those who provide “services with intent to assist lobbying” (UKPAC, no date). Legislation could certainly be framed so as to include those who advise lobbyists in respect of lobbying, but exclude those who advise lobbyists on non-lobbying matters.

17. Fine Gael has also said that the system “applies only to those individuals that are paid to lobby. People who are lobbying on a voluntary basis are not required to register” (Fine Gael, 2010, p 27). However, the text of that draft Bill does not specifically include language which would exempt volunteer lobbyists or citizens lobbying on their own behalf by defining “professional lobbyists” in part as those who receive some payment for their activities. It would be useful to insert language similar to that contained in the Labour Party Bill which explicitly dealt with paid professionals rather than volunteers or citizens—contract lobbyists were those who lobbied “for payment or any other consideration, on behalf of another person” (2008, p 5), and in-house lobbyists were those for whom “a significant part of [their] functions as an employee is to engage in lobbying activities with public officials on behalf of the employer” (2008, p 7). In its consultation paper, the UK Government seeks views on possible thresholds of activity which could trigger registration. If one of the defining characteristics of a lobbyist is the amount or proportion of their time which is spent on lobbying activities, then legislation ought to be explicit on this point. A phrase like a “significant part” is not sufficiently precise, and will inevitably result in some lobbyists deliberately avoiding registration. One option would be to introduce a relatively low threshold, such as if 10% of working time is spent on lobbying activities. More straightforward may be to state that all who spend any time lobbying must register. Those groups which lobby infrequently will presumably not have many contacts with policymakers and thus should not find registration problematic.

18. The Government has also asked for views on the provision of financial information. My own view is that some indication of fee income or lobbying expenditure would be useful in the interests of transparency. However, I do not believe that it should be used as a means by which who is defined as a lobbyist and who is not. One of the lessons of the European Transparency Initiative in Brussels is certainly that if insufficient guidelines are given on precisely what activities are to be registered, it then becomes very difficult for organisations to know what to count and what not to count. Unless every registrant is able to use a single, clear method of calculation, then the registered information does not enable observers to make safe assumptions about an organisation’s lobbying activity or to compare the level of activity across a range of organisations. Registration risks becoming meaningless—or worse, misleading—unless it provides a fair representation of who does what and with what resources. On the other hand, though, it cannot credibly be argued that financial disclosure would hinder the competitive development of the lobbying market—we need only look to the US to see that lobbying organisations are perfectly able to supply financial information without undermining the industry. For a regulatory scheme to operate with no reference whatever to financial issues ensures that critics will continue to be dissatisfied with the extent of transparency and accountability it provides. More importantly, though, the absence of any financial information may make it more difficult for the wider public to have confidence in the regulatory framework. Unhelpful, and frankly inaccurate, myths about lobbying can develop when what appears to most people to be relevant information is not available. A total lack of financial disclosure could therefore hinder the industry in the future as it seeks to engage more positively with public opinion and to build a reputation for openness and accountability.

Lobbying Information to be Disclosed

19. The register should be framed in such a way as to require only that information which can be provided with relative ease, and only that which is “of genuine potential value to the general public, to others who might wish to lobby government, and to decision makers” (PASC, 2009a, p 52). In my view, the information which should certainly be disclosed would include:

The individual lobbyist’s name and address and those of the client or employer on whose behalf lobbying was undertaken.

The public bodies which were lobbied: the names of all policymakers with whom a lobbyist communicated should be disclosed in the interests of helping to hold the Government to account. Publication by government departments of their meetings with external groups is not an adequate substitute for lobbyists being obliged to be open about their activities.

The issue which was lobbied on: it would be useful if the language used in the Government’s legislation is clear that lobbyists must record as precisely as possible the specific issue being lobbied on (such as identifying the particular Bill or regulation) rather than allowing lobbyists to simply record a broad policy area. Just as consultancies have multiple clients, so too do many firms, charities and other organisations have multiple issues on which they lobby. Transparency requires that we know as precisely as possible the subject matter bring lobbied on.

Details of any public funding received by the organisation being lobbied on behalf of.

20. In addition, it would be sensible to include in the legislation some phrase such as “any other matters as may be prescribed by the regulator for the purposes of enhancing transparency and accountability in the policymaking process”, so that the capacity for the system to evolve over time is built into the law. Other jurisdictions compel lobbyists to disclose information about either their fee income (for consultancies) or their lobbying expenditures (for other organisations). My own view on balance is that this sort of disclosure has not proved to be excessively commercially sensitive in the United States, and it is an area where perhaps the Government could consider a range of options. It would, for instance, be reasonable to allow a lobbyist to indicate specifically those clients for whom work was being undertaken on a pro bono basis. Other items of information which could usefully be included in any list of the material to be disclosed include: listing any public offices the lobbyist has formerly held; listing any trade associations, professional bodies or advocacy coalitions through which the organisation undertakes any of its lobbying activities; a summary of the lobbyist’s position on the policy item which was the subject of the lobbying; details of any expenditure by lobbyists on secondary bodies or individuals; copies of all submissions made to policymakers; and a record of all meetings and correspondence between lobbyists and policymakers (see the written evidence of the National Union of Journalists at PASC, 2009b, p 220; and that of Spinwatch at PASC, 2009b, p 221).

21. One interesting proposal in the House of Commons Public Administration Select Committee report was that a register should go beyond providing the bare details of contacts between lobbyists and policymakers, by using “diary records and minutes of meetings” so that the public can “see what contacts are taking place, and to reach a reasonably informed judgement as to whether decision makers are receiving a balanced perspective from those they are meeting” (PASC, 2009a, p 54). The idea is further developed in the US context by Lee Drutman who has proposed that the Library of Congress could set up an online database of lobbying material (similar in nature to the THOMAS system which the LoC already operates as a legislative database). Drutnam suggests that each piece of new legislation would have its own section on the system—lobbyists would state on whose behalf they were acting and the organisation’s position on the Bill, and could additionally upload supporting documentation and position statements. He foresees the system also being used by constituents who wish to record their opinions, and by members of Congress to explain their position on the legislation. In this way, congressional staffers, journalists and lobbyists could easily learn about the full range of views being expressed on any Bill. Drutman notes (2011, p 9) that, “In defending their profession, lobbyists frequently argue that much of what they do is to make government more effective by providing valuable policy expertise. If that is indeed the case, lobbyists should welcome the opportunity to participate [in this database].” Moreover, they could be encouraged to participate if congressional staffers and members decided only to meet those lobbyists who were already publishing their argumentation on the database so that it could be publically supported and challenged by others.

22. The Irish Labour Party’s Bill included one particularly innovative proposal which has the potential to significantly expand the value of the information disclosed. It would have required lobbyists in Ireland to “identify any communication technique (including appeals to members of the public through the mass media or by direct communication that seek to persuade members of the public to communicate directly with a public official in an attempt to persuade the public official to endorse a particular opinion) that the person has used or expects to use in an attempt to influence that matter” (Labour Party, 2008, pp 6–7). If such a proposal was actually enacted in the UK, it would throw considerable light on the process of grassroots lobbying and I urge the Government to include this in the legislation it produces.

23. I would particularly highlight one further idea which would significantly increase the value of disclosure. During the PASC inquiry, the Association of Professional Political Consultants argued that comprehensive regulation would need to “cover people who lobby on an ad hoc basis, such as the company director who has a lunch with his local MP” (PASC, 2009b, p 142). A corporate CEO may typically spend only a few days a year lobbying policymakers, but the APPC is correct to highlight the potential importance of such interactions. The opportunity exists now for the UK to implement a truly original element of lobbying regulation. I would suggest that any organisation which is obliged to register its lobbying activities must record all such contacts between the organisation and policymakers. If anyone in an organisation meets the definition of a lobbyist, then all lobbying undertaken by everyone in that organisation ought to be recorded. In practice, this could be done quite simply: for those groups which register multiple lobbyists, one would be designated as the primary respondent (and naturally if an organisation only registers one lobbyist then he or she is by default the primary respondent) who has the responsibility of ensuring that all contacts between non-registered employees and policymakers are recorded in the register.

The Management of a Regulatory System

24. While it is obviously important how legislation is framed, it is equally vital that the introduction of lobbying regulation means more than simply ticking a box to say that one of the pledges contained in the coalition agreement has been met. Unless the Government demonstrates as firmly as possible that regulation will be continuously enforced over the long-term, then some lobbyists will seek to evade it. I would suggest that the most appropriate process by which to ensure this is: 1) that the Government prioritise the introduction of legislation establishing which body will be responsible for overseeing the regulatory system; 2) that once the legislation is enacted the register comes into effect with lobbyists disclosing whatever fundamental items the Government considers essential to transparency; and 3) at the same time, the new regulator holds a time-limited open consultation period with all interested stakeholders intended to inform him or her in the task of drawing up more detailed rules concerning the practice of lobbying and operational procedures.

25. The register must be available for public inspection, and indeed it would be helpful if legislation specified that it must be freely accessible on the internet. The regulator should be required to produce an annual report on the operation of the register, given adequate powers to investigate suspected breaches of the legislation, and obliged to publish a report on each investigation which was undertaken. The draft Bill published in Ireland by Fine Gael’s states that a criminal offence would be committed if “an unregistered person [engages] in lobbying on behalf of a commercial undertaking” (2010, p 77), which may be a useful provision in UK law. Legislation must also specify any penalties which an offence under the law would attract, and this ought to range up to imprisonment and/or substantial fines for the most serious transgressions. One interesting idea which the regulator may consider relates to the current self-regulatory requirement that lobbyists are honest and do not mislead policymakers: while none have yet passed, Bills which would make it a criminal offence for a lobbyist to lie to a legislator have been introduced in a number of American states, including Arizona (KTAR News, 2009) and Georgia (Savannah Now, 2008). The Government could consider giving the regulator power to levy specific penalties on those found to have provided policymakers with false or misleading information.

26. In its consultation paper, the Government proposes that lobbyists should update their registrations on a quarterly basis. Personally, I can see no reason given existing technological capability why registration should not happen as close to real-time as reasonable, but certainly within 10 working days of any material change. Indeed, Lanny Davis (a former White House adviser to Bill Clinton) has suggested harnessing technology to make US lobbyists’ registration entirely current. Under his proposal (Davis, 2008), in advance of every meeting with a policymaker, every lobbyist should have to register their name and that of their client or employer, the specific reason for the meeting and the legislation or policy issue to be discussed, the lobbyist’s position on that issue, the specific action which the policymaker will be requested to perform and details of all campaign contributions which have flowed from the lobbyist and/or client to that policymaker. Then, as the lobbyist arrives for the meeting, he or she would be obliged to sign in to a real-time computerised log to confirm that the meeting is actually taking place. In Davis view this “total transparency” would be burdensome but he suggests that US lobbyists would simply have to learn to live with it as they have learned to live with current rules, and that any bureaucracy is more than outweighed by the public benefit provided by such blanket accountability.

27. Five points regarding the regulatory system are absolutely crucial in my view and should be highlighted:

To be as useful as possible, the register ought to be internet-based and be easily searchable so that all citizens have access to the information, and it does need to be based upon a reliable IT platform. One of the lessons of the current register of the UK Public Affairs Council is surely that this is not something which can be done cheaply if it is to function properly. The Government will need to invest significant resources to get such a system established, but we will all derive benefit from having an effective register. Lobbyists should be required to file their registrations and other material electronically.

Pross has stated (2007, p 39) that “the autonomy of the [regulator] is essential to ensuring the continued integrity of lobby regulation.” The regulator should be independent of both the Government and the lobbying industry if it is to have the credibility required to help enhance public confidence in our policymaking process.

A range of penalties—from censure to more substantial measures—must be available to the regulator and/or the criminal courts for non-compliance with the system, on a sliding scale so that minor offences can be reasonably dealt with and serious transgressions are liable to significant punishment.

Clearly, there will be a financial cost attached to the establishment and maintenance of any regulatory system—particularly in terms of IT and staffing. To some extent, this is part of the price of an open and vibrant democracy and the Cabinet Office should not shy away from making the case for public investment. Equally, though, I believe that it is appropriate that lobbyists themselves contribute to the cost of the register, through an annual registration fee of perhaps £200–300 per individual registrant.

It is important that the legislation grants wide-ranging power to the regulator to modify and update the rules concerning the practice of lobbying in as flexible a manner as possible. No regulatory model is perfect, and some lobbyists will certainly seek to identify any possible loopholes. The regulator needs to be able to close these quickly, and to learn from the evolving lessons of his or her counterparts in other jurisdictions. What the loopholes in UK legislation will prove to be is almost impossible to predict, but there will inevitably be loopholes and the regulator must be in a position to respond to them. For instance, in 2010 lobbyists in Texas began to avoid lengthy queues to enter the state Capitol by applying for firearms permits so that they could then make use of a separate entrance (Ward, 2010). That will not be an issue here, but the underlying point remains that some lobbyists are adept at finding new ways around existing rules.

28. One of the more innovative elements of the report of the Public Administration Select Committee was the recommendation that lobbyists should establish a “single umbrella organisation with both corporate and individual membership, in order to be able to cover all those who are involved in lobbying as a substantial part of their work” (PASC, 2009a, p 42). The purpose of the organisation would be centred around the promotion of “ethical behaviour by those involved in lobbying” (PASC, 2009a, p 42). The new body should be funded by lobbyists, but its management should be undertaken at least in part by “people from outside the lobbying world with a track record in regulation and in business ethics” (PASC, 2009a, p 42) both so that an element of external expertise can be injected into the group and to guard against a tendency to defend rather than punish any members found guilty of wrongdoing. The Committee proposed that the group must apply more rigorous ethical standards to its members (including some degree of independent and external accreditation), and should establish “an externally assessed and validated standard—a kind of kite mark—which its members should be required to meet” (PASC, 2009a, p 43). Both individual and corporate standards should be created (and monitored by an independent group external to the industry), and crucially should be set at such a level that it would be possible for some applicants not to meet them. All those who are “involved in lobbying decision-makers on a regular and continuing basis” (PASC, 2009a, p 43) would be expected to want to join the new organisation; and the body must be prepared to impose sanctions on any of its members “who fail to meet its criteria,” and these sanctions might include “naming and shaming,” financial penalties, suspending members for a period, and expelling them from the group (PASC, 2009a, p 43).

29. I would urge the Government to consider again whether such a body might be useful in the lobbying industry, and if so how to encourage the industry to begin to take the idea forward. I have previously urged the industry to take the initiative itself to establish an organisation of this nature, stressing the need for “a single trade association, capable of speaking for the industry with a single voice” (McGrath, 2005b, p 174), and describing the lack of a body open to individual rather than corporate membership which is specific to lobbyists rather than to the general public relations industry as “a serious gap which needs to be closed by lobbyists themselves establishing their own group” (McGrath, 2005a, p 131). One of the benefits of a mandatory register is that we would have a comprehensive list of all professional lobbyists in the country; perhaps it would be possible to devise a means whereby the annual registration fee included a component which would be taken as a membership fee for a mandatory trade association representing lobbyists and focusing on driving up ethical standards. Such a body has the potential to drive the whole industry forward positively and to boost public confidence in the lobbying industry. Peter Bingle (Chairman of Bell Pottinger Public Affairs) told the PASC Committee that: “One of the issues for the industry is to have somebody talk on its behalf who is a skilled communicator, who can actually get across what we do and be proud of our industry and that would encourage a higher quality of person coming into it” (PASC, 2009b, p 71). That sort of proactive promotion of the industry would surely be a key function of such a trade association.

30. Among the challenges facing the industry are: a need to communicate more effectively to the public about the proper role of lobbying in a democracy; the development of rigorous ethical standards; the ability to offer some form of redress to lobbying clients serviced by shoddy or substandard consultants; and the creation of a training scheme for lobbyists. The third of these items reflects a concern over what Norton (1991, p 65) terms “consumer accountability”—on what basis should a potential client or employer hire someone and how will they judge the quality of the services they receive? Charles Miller (a senior UK lobbyist who would later become a driving force in the Association of Professional Political Consultants) argued (1991, p 166) that lobbyists have a “duty to be properly qualified for the work at which they are representing professional expertise.” This area alone could provide a large work agenda for a new umbrella organisation. An inclusive trade association would enable lobbyists to begin to exercise vocal and vigorous leadership of their profession. It could begin to educate both policymakers and the general public about the valuable and legitimate role which interest representation plays in policy formulation. A strong professional association representing all lobbyists could institute a mandatory ethics training programme, and cooperate with higher education and in-career training providers to both accredit relevant degree courses and provide programs of continuing professional development for lobbyists. It could instil in individual lobbyists a strong sense of professional identification and an appreciation of why membership of a representative body is important. It could undertake a series of strategic media relations and of targeted outreach to civil society; it could work with academics to produce best practice guides for practitioners; it could cooperate with other professional groups in other jurisdictions to ensure that lobbyists in the UK are better able to network with their counterparts internationally; and it could establish a mentoring scheme whereby younger professionals could benefit from the experience of more established colleagues. An agenda of this type would enable lobbyists acting together to make substantial progress towards gaining greater public acceptance of the industry (McGrath, 2005a).

31. It is surely not credible for lobbyists to argue—though some continue to do so—that there is no reason to believe that the industry has a reputational problem. There may be no empirical evidence for this in the UK, but that is likely to be simply because the public here have not been polled on their attitudes to lobbying and lobbyists. By contrast, this is a question which is asked in the United States, and even given the many differences between the US and UK political systems the results are enlightening and should be troubling for UK lobbyists. The most recent annual opinion poll conducted in the US by Gallup (2011) into how various professions are perceived by the public revealed—as usual—a profound distrust of lobbyists. Only 7% of respondents at the end of last year rated lobbyists’ honesty and ethical standards as high or very high, while 27% considered lobbyists to be average, and 62% rated them as low or very low. By contrast, the scores for nurses—the top ranked profession—were 84%, 15% and 1% respectively. Lobbyists had almost exactly the inverse rating of high school teachers who had a positive score of 62%, an average rating of 29% and a negative score of 8%. Lobbyists have always performed badly in this survey, which has been conducted annually since 1990. Of the eight worst ratings historically, three of those slots were obtained by lobbyists. The sole bright spot for lobbyists in 2011 was that although they generally get worse scores than any other profession, last year they were only second worst as Members of Congress are held in slightly less esteem—7% of respondents believe their honesty and ethical standards are high or very high, 27% gave them an average rating, but fully 64% said that Members of Congress have low or very low ethics. Prior to the 2011 survey, lobbyists were the “most despised profession Gallup has ever tested” with a combined low or very low score of 64% in 2008, but this unenviable record has now been tied by Members of Congress.

32. One additional function of an umbrella organisation could well be that an inclusive trade association would provide a forum through which the regulator could seek the views of industry on potential amendments to the rules concerning the practice of lobbying (though, of course, this should be no more than a purely advisory role).

33. One misplaced assumption is that lobbyists themselves oppose regulation. There is in fact some evidence that individual lobbyists may be more willing to embrace reform than are the leaders of the groups which claim to represent the industry. A survey of 100 UK in-house practitioners in 2005 revealed that 70% of them would support a new professional body specifically for public affairs, with over 60% also backing the introduction of an industry-wide recognised training program and more than half favouring the development of a public affairs qualification (Hawkins, 2006, p 35). Chari et al (2010) found that the lobbyists they surveyed in Canada, the United States, the EU and Germany were quite happy to register, believing that it brought some benefits (such as good PR and increased legitimacy) to them at relatively little cost. In a similar vein, Holman and Luneburg (2012) found that 26% of US and Brussels lobbyists favoured voluntary registration and 66% preferred mandatory registration, with only 8% opposing registration at all.

34. In its consultation paper, the Government asserts that the setting of ethical standards is “a matter for the industry itself, not for the operator of the register” (Cabinet Office, 2012, p 15). My own view is that such a code does not need to be included in legislation: if one is included it runs the risk of being somewhat anodyne and bland, imposing on practitioners only the most basic obligations. It also becomes set in stone and necessitates a relatively cumbersome process if amendments are required. It may be better to leave the drafting of any code of conduct to the regulator (following a separate consultation process) so that it can be both rigorous and flexible. I would in addition urge the Government of the importance of any code of conduct being directed towards the general public as much as it is towards the lobbying industry. For instance, the APPC’s code of conduct does not even mention the public. Lobbyists must disclose to policymakers the identity of their client, but there is no mechanism by which the public is entitled or enabled to learn who is lobbying whom on whose behalf. The code treats ethical lobbying standards solely as an internal matter for the industry, over which the general public has no right to information. Nothing in the code obliges any lobbyist to make any information at all available to the public, and thus it does nothing whatever to increase general transparency or public confidence in the lobbying process. Hence the APPC code, while well-intentioned, fails to enhance the public acceptability of lobbying or public trust in the policymaking process.


35. I hope that this submission has been helpful to the Committee as it considers how best to respond to the Government’s consultation paper. I strongly support the Government’s commitment to introducing statutory regulation of lobbyists, and urge that this be achieved through the mandatory registration of all lobbyists from all types of organisation. The PASC Report notes that there will always be some resistance from lobbyists to reform: “Commitment to transparency in the world of lobbying is, and always will be, a relative concept. What this suggests is that a degree of external coercion will be required to achieve sufficient transparency across the board” (PASC, 2009a, p 15). Regulation should not be seen as a means by which to attack lobbyists, but rather as a spur to enhance the industry’s standards and reputation. Society has a reasonable need to be able to trust that lobbying is a legitimate activity carried out in a fair and responsible manner. This need can only be met though a combination of transparency, regulation, and education of the public by lobbyists of the valuable role lobbying plays in articulating interests to policymakers. For their own self-interest, if for no more compelling reason, lobbyists should encourage government to develop a rigorous regulatory scheme, as without one they will find it impossible to raise the industry’s standards and its public reputation.

February 2012


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Prepared 12th July 2012