Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Hardie and Lord Campbell-Savours

Monday 13th January 2014 Lords Chamber

[Lord Campbell-Savours]

My Lords, as I understand the present arrangement—and I am only going by memory from what was said in Committee—the Public Relations Consultants Association already has a code of conduct. If it is correct that the professional organisations may over the longer term actually wind up—and in the period between Committee and Report we were led to believe that this is the case—then I presume that no code of conduct will necessarily apply. That is unless the Government introduce a model code on the basis that my noble friend on the Front Bench has just argued for. I asked the Minister in what circumstances an organisation that registered would not wish to introduce a code of conduct. I presume that during the consultation to which the Minister referred when he moved his amendment, they made clear what those circumstances would be. I wonder if we can be told what Ministers were told. There must be some explanation for why they resist. If there is an explanation—perhaps it is in the written brief or something—maybe we could see it prior to Third Reading. I simply cannot understand what they are objecting to, and we need to know during the course of the debate what it is.

[Lord Hardie]

Perhaps I can answer the noble Lord, Lord Campbell-Savours. In the debate about the first amendment today, I referred to how the PRCA requires people who sign up to the voluntary register to sign up to the code of conduct, which has strong enforcement of regulations or provisions. My point earlier was that if that disappears and there is to be a statutory register in place, it would be appropriate that we have something which is at least as good, not something that detracts from the current position.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Hardie and Lord Campbell-Savours

Tuesday 5th November 2013 Lords Chamber

[Lord Campbell-Savours]

My Lords, my amendment would inject the words “of government” after the words in Clause 1(1):

“A person must not carry on the business of consultant lobbying”.

I should make it clear that I am amending a part of the Bill which I believe in principle to be totally inadequate to deal with the problem of the lack of transparency; I am only amending what is on offer.

Amendment 3 would clarify in the first clause of the Bill exactly the intention of the Government behind the legislation. The Bill restricts its remit and reach to limited areas in the institution of government. My amendment would make it clear that at this stage, the Government’s intention has been deliberately to exclude other important areas of government influence over public policy and decision-taking from the reach of the Bill. I tabled this amendment last Thursday to draw on the wider debate about those bodies that were being deliberately excluded—namely, government in its wider form, and Parliament—since when, on Friday, my noble friends Lady Royall of Blaisdon and Lady Hayter of Kentish Town tabled their Amendments 18 and 22, which more roundly deal with the issue of Parliament. I therefore yesterday withdrew the reference to Parliament in my amendment and will leave that to them to deal with.

My amendment would bring under the Bill government as a whole, as against the cherry-picked sectors which the Government propose. My case is that executive agencies, which are staffed by civil servants, non-departmental public bodies, which are staffed with a mix of non-civil servants and civil servants, and non-ministerial departments are all crucial parts of government.

The document Categories of Public Bodies: A Guide for Departments, of December 2012, sets out each of the three areas of government to which I have referred. Non-ministerial departments are described as,

“government departments in their own right—but they do not have their own minister”.

They include the Charity Commission for England and Wales, the Food Standards Agency, HM Revenue and Customs, the Office of Gas and Electricity Markets, Ofsted, the Office for Standards in Education and Children’s Services and Skills, Ofwat, the Office of Water Services, and the UK Statistics Authority.

Executive agencies are defined in the document as,

“business units headed up by a chief executive … often supported by a management board. Executive agencies carry out executive functions, with policy set by ministers”.

They include HM Courts and Tribunals Service, the Identity and Passport Service, the Maritime and Coastguard Agency and the UK Border Agency. Finally, there are non-departmental public bodies, which are described as carrying out,

“a wide range of administrative, commercial, executive and regulatory or technical functions which are considered to be better delivered at arm’s length from Ministers”.

All these bodies are part of government and deal with contracts as set out in Clause 2(3)(c)(i). Some deal with grants and “other financial assistance”, as set out in Clause 2(3)(c)(ii), and some grant licences and other authorisations, as set out in Clause 2(3)(c)(iii). In other words, they are very much at the heart of government and carrying out the functions described in the Bill, and which the Bill is intended to catch. My amendment, which at this stage is a probing amendment, asks the Government why these bodies are to be excluded. I beg to move.

[Lord Hardie]

My Lords, I shall speak to Amendment 24, which is in this group. In doing so, I wish also to speak to Amendment 52 and, with the leave of the House, Amendments 56, 57 and 58, which are in a different group but are all consequential on the main amendment.

Clause 2(3) applies only to communications to,

“a Minister of the Crown or permanent secretary”,

second Permanent Secretary or persons serving in government offices as listed in Part 3 of Schedule 1. My amendment seeks to extend the class of persons. As many noble Lords observed at Second Reading, lobbyists will not confine their activities to Ministers or the senior civil servants listed in these provisions. Indeed, their involvement with such people is likely to follow lobbying activity involving civil servants of a lower grade. This is clearly the case when one considers the word “government” in paragraphs (a) to (d) inclusive of Clause 2(3), which has to be construed in accordance with paragraph 1(4) of Schedule 1. That construction extends the definition of consultant lobbying to Ministers or their equivalent, and officials at the highest level in devolved Governments and local authorities in the United Kingdom, and in any institution of the European Union.

When I was in practice at the Scottish Bar, I was initially standing junior to the City of Edinburgh Council then, when I was appointed Silk, I became standing senior to that authority. From that experience, I am aware that local authority officials of a lower grade than senior management prepared policy documents for consideration by senior officials, then elected members. Those junior officials had considerable expertise within their own professional competence and a significant influence on the terms of policy documents that were ultimately submitted to elected members. Any lobbyist worth his salt who wished to influence policy would communicate with these officials at an early stage. I suspect that the same is true in central government and devolved Governments in the United Kingdom. If this provision is to be of any significance, it should be extended to include communications with any civil servant. Equally, there is a perception that political advisers can have a significant influence on government policy. Why should they not be included in the definition of persons to whom communications are made?

Amendment 34 sets out the definition of “political adviser” but, on reflection, the approach taken in the amendments by the noble Lord, Lord Norton of Louth, and the noble Baronesses, Lady Royall of Blaisdon and Lady Hayter of Kentish Town, is more appropriate in referring to “special advisers”. That avoids reinventing the wheel.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Hardie and Lord Campbell-Savours

Tuesday 5th November 2013 Lords Chamber

[Lord Campbell-Savours]

My Lords, in moving Amendment 88, I will also speak to Amendment 90. The Bill as it stands sets out a series of offences under Clause 12. The offences include “inaccurate or incomplete” registration and failing,

“to submit an information return under section 5”.

The Bill then goes on to propose penalties in the form of fines. What the Bill does not do at this stage is set out the arrangements for removal from the register, which is what my amendment is intended to deal with. Under the heading “Guidance”, Clause 21 states:

“The Registrar may give guidance about how the Registrar proposes to exercise the functions under this Part”.

Under Clause 21(2)(c), it is proposed that the guidance may indicate,

“the circumstances in which the Registrar would … remove a person’s entry from the register”.

My amendment flags up what I believe these circumstances should be.

The first circumstance is bringing Parliament into disrepute. I recognise that the professional associations have their own codes of conduct, but their codes are not written by Parliament—they are written by their legal advisers and approved, I presume, by their members. Parliament, in conditions of a statutory register, although not included in the Bill, needs to seek protection against being itself brought into disrepute through the actions of lobbyists who are not subject to a code. We will all be aware of the well documented and publicised scandals of recent years and that a small minority of lobbyists can abuse their relationships with Members of Parliament. The same applies with civil servants: if a lobbying operation is found to have compromised the integrity or independence of a civil servant, it is not just the civil servant who is necessarily at fault; a heavy burden of blame inevitably falls on the lobbyist. We need to be sure that the lobbyist concerned loses his or her official seal of approval, which is effectively what registration provides.

As to the wider issue of offences under Clause 12, there can be no circumstances in which a lobbyist who commits an offence under this clause should be allowed to remain on the register. We need more than guidance at this stage. We need to place firmly and clearly in the Bill our view as Parliament on what the circumstances for deregistration are. I beg to move.

[Lord Hardie]

My Lords, Amendments 89, 103, 109 and 110 stand in my name. Amendment 89 is concerned with Clause 6. Your Lordships will note that Clause 6 empowers the registrar to do a number of things, including, under Clause 6(6)(b), to decide whether a person’s entry should be removed from the register:

“If the Registrar has reasonable grounds for believing that a registered person is not (or is no longer) a consultant lobbyist”.

It is important to bear in mind that under Clause 1, a person cannot be in business as a consultant lobbyist unless he or she is registered. The decision of the registrar to remove someone from the register effectively stops that individual from operating in business. As far as I can see, there is no right of appeal against the decision of the registrar, which seems fundamentally unjust. Anyone who is aggrieved by a decision to remove him or her from the register ought to have a right of appeal to the tribunal, and that is what this amendment seeks to do.

[Lord Campbell-Savours]

I did not want to tie the Order Paper down with a very long amendment but if I had done more homework I would have introduced an element of appeal. I was simply floating the principle and I am sure that, were the Government to accept it, an appeal procedure would be introduced into the Bill.

[Lord Hardie]

I take the noble Lord’s point. I am not criticising his amendment; I am criticising the Bill. The Bill does not contain any right of appeal. My Amendment 89 introduces such a right for someone who is aggrieved by the registrar’s decision.

Not only does the Bill deprive someone of the right to a livelihood, perhaps, but Clause 12 creates an offence: it is a criminal offence to lobby if you are not on the register. Not only do you deprive someone of their livelihood but you subject them to the possibility of criminal proceedings and a fine. Clearly there ought to be a right of appeal. There is a tribunal in existence so there is no difficulty about that.

I have already referred to Amendment 103, which creates similar offences in relation to the register of lobbying activities, so I will say no more about that.

Amendment 109 relates to Clause 16, which concerns the ability of the registrar to impose civil penalties. The level of the penalty is fixed at £7,500. I have suggested that that should be reduced to £5,000. The civil penalty is an alternative to prosecution and, if you are prosecuted, the maximum summary fine in Scotland is £5,000 so I do not understand why the civil penalty is half as much again. There may be a reason for that; if there is, I would like the Minister to tell me; if there is not, there should be equivalence of penalties.

My final amendment is Amendment 110. It relates to Clause 18, which states:

“The Registrar may not impose a civil penalty on a person in respect of any conduct … at any time after criminal proceedings … have been instituted … and before they have been concluded, or … after the person has been convicted of an offence under this Part”.

My amendment introduces, after the word “convicted” in subsection (1)(b), the words “or acquitted”. Once we get to that stage, the individual has gone through a criminal trial and a court has decided that he or she is not guilty. Unless we include the words “or acquitted”, a court may have acquitted someone but the registrar could still impose a civil penalty of £5,000. Again, that is unjust. That is the reason for that amendment.