43.As previously noted, the Business Appointment Rules govern post public employment of former Ministers and Crown servants (civil servants including special advisers, Diplomats, members of the Armed Forces and members of the Security Services) for a two-year period after they leave public office. These Rules are the responsibility of Ministers; prepared by the Cabinet Office and approved by the Prime Minister. They have no statutory basis and include no sanctions for non-compliance, although compliance with the Rules forms part of the Ministerial Codes for the UK Government, Scottish Government and Welsh Government, and of the terms and conditions of appointment of civil servants and special advisers. The Police Service and local government are not covered by ACoBA.
44.In the evidence we received, some witnesses criticised the rigour and efficacy of the Rules in their current form. Private Eye journalist, Richard Brooks told us that, “it is hard to see how even the longest waiting periods or the standard two-year lobbying ban imposed by ACoBA can alter the essential problem”. The current Rules for former Ministers include a lobbying ban which states that:
a former Minister should not engage in communication with Government (Ministers, civil servants, including special advisers, and other relevant officials) with a view to influencing a government decision or policy in relation to their own interests or the interests of the organisation by which they are employed, or to whom they are contracted.
45.Richard Brooks suggested that it was incredibly difficult to monitor this because “records of meetings at which proscribed lobbying may have occurred, and the identities of those attending them, are not published. Nor are they released upon request under freedom of information laws”. Unlock Democracy and Spinwatch said that the Rules around lobbying were not effective “due to their ambiguous nature”. They suggested that the definition of the lobbying ban was problematic because it left room for interpretation and did not specifically include, “informal lobbying” which may take place for example at social events.
46.Baroness Browning acknowledged that the definition of lobbying is particularly problematic and in November 2015, she wrote to the then Cabinet Office Minister, the Rt Hon Matt Hancock MP, proposing an amendment with regard to the definition of the lobbying ban. She recommended that the Rules could more helpfully define the lobbying ban as:
Communication with public office holders (including Ministers, special advisers, civil servants and military personnel) with a view to influencing a government decision or policy (including competitions for contracts, awards or grants) in relation to their own interests, or the interest of the organisation by which they are employed, to which they are contracted or with which they hold office. For the avoidance of doubt, lobbying includes any such communication even if it take places in a social or other non-professional context.
47.In ACoBA’s 2015–16 annual report, Baroness Browning repeated her recommendation, and explained that, “based on their experience of dealing with cases,” it was necessary to tighten the definition of lobbying in order to “capture the spirit of the rules and the principles they are designed to uphold more comprehensively”.
48.In oral evidence to us, Chris Skidmore MP, Minister for the Constitution, Cabinet Office told us that the Government would “obviously be looking at the definition of lobbying that ACoBA have come to us and want to amend”. While this report was in draft the Cabinet Office amended the Business Appointment Rules for both former Ministers and civil servants to in response to our follow up correspondence of 3 May 2016 in support of ACoBA’s recommendation, and to the points put to the Minister during our inquiry.
49.In line with current UK Government practice, the Welsh Government announced in January that it will be also publishing the “details of Ministers’ meetings with external organisations and attendance at engagements” as a step to aiding transparency. The information will be published on the Welsh Government website quarterly, with the first publication expected in March 2017. In a BBC interview Alexandra Runswick, Director, Unlock Democracy welcomed the Welsh Government’s decision but said the public needed access to “meaningful information”–such as details of policy discussed–if publishing diaries was to be an “effective tool to scrutinise actions taken and policy decisions made behind closed doors.” She added that “diary publication measures” already taken by the UK Government and the Scottish Parliament “can create the illusion of transparency where in fact very little exists”.
50.We welcome the Government’s recent action to extend the definition of lobbying, now covering informal social contact as well as formal lobbying, though we are somewhat dismayed about how long the Government took to respond to Baroness Browning’s proposals for change. The new lobbying rules will still never be effective without clear and transparent monitoring and reporting of lobbying contacts. Even for formal meetings between lobbyists and Ministers and Crown servants, there is only limited public information made available about the details of meetings. In their current form, the effectiveness of the Rules relies too much on individuals’ own willingness to abide by the Nolan Principles, which are much too broad for this purpose, and not specifically addressed to the problem of lobbying. The Business Appointment Rules are the responsibility of Ministers and we will hold Ministers accountable for their effectiveness and the way ACoBA administrates them.
51.There should be nothing wrong with business and other interests making their case to government Ministers and civil servants. Indeed it is a right for people to do so and it should improve policy and administration. However, the Government must accept that the transparency of such exchanges is essential to avoid the perception that private interests are covertly capturing decision makers.
55 Business Appointment Rules for former Ministers. The Business Appointment Rules for Civil Servants, including Special Advisers.
56 Richard Brooks ().
58 Richard Brooks (), point 3.
59 Unlock Democracy and Spinwatch (), points 17–18.
61 Advisory Committee on Business Appointments Seventeenth Annual Report, 2015–2016, p.2.
64 In response to the Public Administration Select Committee’s report on Lobbying: Access and influence in Whitehall, First Report of Session 2008–09, HC 36–I, p66; point 38, the Government agreed to publish online, on a quarterly basis, information about ministerial meetings with outside interest groups. This became effective from 1 October 2009. See government response: Public Administration Select Committee, Eighth Special Report, Lobbying: Access and influence in Whitehall Session 2008–09.
66 BBC News, Welsh ministerial diaries to be published, 2 February 2017.
21 April 2017