Political and Constitutional Reform CommitteeWritten evidence submitted by the Law Society
Introduction
1. The Law Society is the representative body for more than 145,000 solicitors in England and Wales (“the Society”). The Society negotiates on behalf of the profession, and lobbies regulators, government and others.
Committee’s Questions
1. Does the Government’s consultation paper represent a balanced approach to the idea of a statutory register?
Does the paper present the evidence in a balanced way?
Are you confident that the issues covered are ones on which the Government has an open mind?
Is the Government clear wherever it has a preference for a particular option, and is this preference in each case a reasonable one?
2. The Law Society will be commenting on the substance of the Government’s proposals in the consultation paper in due course, and the Society remains optimistic that the Government will consider its concerns set out below.
2. Does the consultation paper contain the right questions?
Is each of the questions asked in a balanced way?
Are there any important questions that are not asked?
3. As presently drafted, the proposals are likely to capture some activities of law firms, accountancy firms, management consultancies, corporations and campaigning organizations within its scope. In the legal field a relatively small diffuse group of law firms in the UK currently offer “public affairs” services. These firms generally engage with a broad range of topics including monitoring of legislative developments, making submissions to government consultations, engaging with and influencing parliamentarians, politicians and civil servants, reputation management and crisis management.
4. While only a relatively small number of firms carry out what might be described as dedicated public affairs consultancy work, a larger number will routinely have discussions with government about, for example, proposals for legislation, without necessarily considering this to be general lobbying or public affairs work. A small number of firms also carry out parliamentary agency work, both promoting and opposing private legislation.
5. There are therefore specific issues engaging law firms that need to be addressed in the proposed legislation.
Mainstream legal work
6. The Society is currently consulting its members on whether a “de minimis” threshold would be appropriate to ensure that the register would not unnecessarily capture the more minimal activity conducted in the course of legal business as described above.
7. Regardless of such a provision, it will be important to ensure that the definition of lobbying does not (either deliberately or by unintended consequence) capture mainstream legal work within its scope. If firms are carrying out legal work for their clients in the normal fashion then this must remain robustly protected by client confidentiality as well as by legal professional privilege.
Confidentiality
8. If law firms are to be required to register, then ongoing legislative and regulatory structures should ensure a level playing field in the provision of such services between law firms and non-law firms.
9. Solicitors have to protect their client’s confidentiality, including their identity, under the SRA Code. The Society has always acknowledged that a client may waive confidentiality so that a solicitor could continue to represent the lobbying client under a registration scheme. The Society has historically not endorsed voluntary registration schemes on the grounds that they would not provide a level playing field—those clients that did not want their identities revealed might simply move the work to other unregistered public affairs consultancies.
10. However, a statutory register would appear to level the playing field. All entities who take on lobbying activities would have to declare their clients and seek their authority to do so, to so act. Those clients who did not wish to do this would have no where else to go to engage such services. This would also resolve the issue with the SRA Code, as where a statutory register existed, disclosure would then be “required….by law” and would probably not therefore even require further statutory interference with the Code or rule changes by the SRA.
Legal professional privilege
11. It is to be hoped that the regulation of lobbyists in the UK will not undermine the principle of legal professional privilege. The Society would strongly oppose any attempt to undercut this important principle.
3. Which lobbying contacts are of greatest legitimate public interest?
Does the consultation paper envisage the capture of appropriate information about these contacts, as opposed to other kinds of contact?
12. The Law Society believes lobbying is a vital part of the democratic process, helping to inform politicians and decision-makers of key issues and concerns and the potential outcomes of policies, actions and legislation. This is aided largely by the experience and expert knowledge possessed by many organisations seeking to influence the political process, including representative bodies, trade unions, businesses and interest groups. Their input equally helps to ensure that policy and legislation is made which is representative of the views of those who it may impact upon.
13. The Society therefore supports an open and inclusive approach towards lobbying, with adequate opportunity for individuals and organisations to have input into the decision-making and scrutiny processes.
14. The Society welcomes recent developments, including the expansion of pre-legislative scrutiny and the Public Bill Committee system, which have helped to enhance these opportunities. The Society believes that organisations should be able, if desired, to seek support and advice from commercial consultancies or in-house teams on how best to influence the political process.
15. The Society would however express concern if personal relationships between public affairs practitioners and politicians/decision-makers are exploited for commercial gain, for example, through the explicit sale of “access”. In addition, the Society would strongly object to money being exchanged between clients or practitioners and politicians in return for sought action or influence.
4. 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 open should the Government be about such lobbying contacts?
16. The Society’s understanding is that the Minister did not meet with any interested parties prior to the publication of the Green Paper. The Society would expect subsequent external meetings to be declared in the usual way on the existing register.
5. How should the Government analyse the consultation responses, and seek to balance the weight of opposing argument?
17. The Society strongly supports a process of evidence-based policymaking.
18. The Society believes that it will frequently be the case that some organisations are in a position to provide more substantial and expert opinion on certain issues than others. For example, the Law Society possesses a number of specialist committees, made up of experienced and senior practitioners across various different areas of law. This means that the Society is able to offer authoritative, considered views on the practical implications of policies and legislation in many areas, such as housing, civil and family justice, criminal justice, immigration, companies and regulation.
19. It may therefore be the case that, as a general rule, where such expert opinion is available to politicians and decision-makers it will receive stronger attention. The Society does, however, support the view that where a range of views are communicated on a particular issue, all should be given equal consideration.
6. Do you have any comments on how any proposals emerging from the consultation should be implemented?
20. When the new register in the UK comes into force it will be important that there be a sufficient lead-in time for the issues raised above to be satisfactorily addressed.
21. It will be important that law firms not wishing to join the register be given sufficient time to address issues that this will give rise to with existing clients.
22. There should also be a clear procedure set out for de-registration if firms that have registered subsequently wish to withdraw from it, in the light of its continuing operation.
February 2012