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

Lord Norton of Louth Excerpts

Tuesday 5th November 2013 Lords Chamber

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

I advise the Committee that if this amendment is agreed to I cannot call Amendment 2 due to pre-emption.

[Lord Norton of Louth (Con)]

My Lords, I rise to speak to my amendments in this group which seek to achieve the same aim as Amendment 1 in the name of the noble and learned Lord, Lord Hardie. I will keep my comments fairly brief as the noble and learned Lord has made the case that I would have made. However, I want to make a few points in support of the thrust of what these amendments seek to achieve. The Short Title of this Christmas tree Bill begins, “Transparency of Lobbying”. That is misleading because the Bill does not contribute to transparency of lobbying. The Bill may result in us knowing who engages in the activity of lobbying—in other words, lobbyists—but it contributes little to knowing what lobbying takes place on particular policies or measures. It could be argued that it is necessary to know who the lobbyists are in order to know what lobbying takes place, but it is certainly not sufficient, and I am not sure that it is even necessary.

The value of a register of lobbyists is far from clear. As I argued on Second Reading, I am not clear what the compelling argument is for introducing a register. The value of the register proposed in the Bill is especially unclear. It is not a register of lobbyists. It is not even a register of professional lobbyists; it is a register of some professional lobbyists. If one is to have a register of lobbyists and, as I say, I am not persuaded of the case for it, one should at least try to make it comprehensive. This entails broadening the class of lobbyists covered in the Bill as well as the class of those being lobbied. This group of amendments deals with the class of lobbyists. We will come shortly to the other aspect of the Bill and its limitations. The noble and learned Lord, Lord Hardie, powerfully made the case for the measure to be extended to encompass in-house lobbyists. As I argued at Second Reading, I see no case for distinguishing between those who are paid and are external to a company and those who are employed directly by a company.

It is no good saying that in-house lobbyists should be excluded as it is apparent on whose behalf they are lobbying. The fact that someone works for a company as a political lobbyist is not necessarily a matter of public record. They may have a title which masks their activity and may work in a public affairs division rather than a parliamentary affairs unit. If one is truly going to have a register of lobbyists for the purposes of transparency, one should aim, as I say, to be comprehensive and not go for an option that excludes more than nine out of every 10 lobbyists.

My amendments, like those of the noble and learned Lord, Lord Hardie, are designed to encompass in-house lobbyists. That is the purpose of the whole grouping. I am not particularly wedded to the wording because the aim at this stage is to get the Government to concede that the Bill as drafted will not make any significant difference to transparency in respect of lobbying government. Indeed, Part 1 conflicts with what the Government seek to achieve because it establishes a new regulatory regime at public expense and for no clear purpose. The taxpayer will not get value for money. If my noble friend the Minister argues that extending the definition to in-house lobbyists is too complex or not practically feasible that, I fear, is not so much an argument for rejecting the amendments as it is for dropping this part of the Bill.

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[Lord Wallace of Saltaire]

That is, again, a fair point, which the Government will look at. We are extending regulation into lobbying here and are reluctant to go too far too quickly. There may be a means of considering further extension on review. The noble Lord will know that we now have a regular practice of having a five-year review of legislation. If whichever Government are then in power decide that this is inadequate, we will see what can be done.

[Lord Norton of Louth]

I come back to my noble friend’s point about who would be included in the register. He gave the figure of 350. Does he know how many of those would be caught who do not already reveal who their clients are?

[Lord Wallace of Saltaire]

My Lords, that stretches my expertise very considerably. I will have to consult and write to the noble Lord about that. It is a good academic question. The Government have been quite clear that there is no exemption from the requirement to register for large multidisciplinary firms that conduct consultant lobbying. We refined the exception provided in paragraph 1 by amendment in Committee in the other place to clarify that it will not be enjoyed by organisations such as, for example, law firms if they run consultant lobbying operations and lobby in a manner which is not incidental to their other activity—even if consultant lobbying is not their primary activity. As such, they will be required to register if they meet the other criteria outlined in the definition of consultant lobbying. The provisions outlined in paragraph 1 provide an important and effective exemption for those whose limited involvement in lobbying is in a manner which is merely incidental to their normal professional activity. However, it brings within its scope those that provide consultant lobbying as a major part of their activities and firms for which consultant lobbying is a significant part of their activity.

Opposition Amendment 39 provides a long list of exemptions from the Opposition’s definition of professional lobbying. Exemptions are provided for constituents contacting their Member of Parliament, persons making communications on their own behalf, persons responding to government consultations or an invitation to submit evidence to a parliamentary committee, persons acting on behalf of government, persons not receiving remuneration, and those responding to a court order. That is a very large and unwieldy list of exceptions partly because once one extends this to professional lobbying, the question of definition itself becomes much more difficult. That is, again, partly why we have stuck to consultant lobbying in our approach.

Finally, the noble and learned Lord, Lord Hardie, asked about sovereign powers and the Government of Taiwan. It is very helpful that he has raised Taiwan but it would probably be better, to be absolutely sure that I am correct, that I offer to write to him on that specific point. I would like to reassure him as far as I can.

I hope that I have managed to answer most of the points in these amendments. I have outlined why it is not necessary to extend the register to those who lobby on their own or their employer’s behalf, because it is clear whose interests are being represented. Our proposals will deliver a focused, problem-specific register and, as such, we believe that these amendments are not necessary. I urge the noble and learned Lord to withdraw his amendment.

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[Lord Wallace of Saltaire]

My Lords, that is a very fair intervention. That is one of the reasons why we hesitate to include people whose main responsibilities within the charity or company for which they work is to contact government. The public affairs departments of major companies are the ones dealing with government, trying to interface between the company and the political process, and it would be the public affairs departments of many companies with which one would therefore logically deal. I know many people who have gone to work in the public affairs departments of companies—I am sure we all do. It is very often where people who have been involved in politics go afterwards to earn what they failed to earn in politics.

The noble and learned Lord is absolutely correct to say that in the exact definition of a professional lobbyist we are talking about people who are employed by a company, campaigning group or charity and pursue its interests in its relations with government. A consultant lobbyist is someone who lobbies on behalf of someone else apart from their own company. Theoretically, I suppose it is possible to imagine a consultant lobbyist all of whose income comes from one external client but the majority of consultant lobbying firms provide assistance, advice and lobbying for a large number of clients. That is the industry with which we are all familiar and with which those of us in government often interact. That is the distinction we make.

[Lord Norton of Louth]

My Lords, before the noble and learned Lord, Lord Hardie, responds, my noble friend has really not addressed the distinction between those who do the activity and the activity itself. The Government are supposed to be trying to provide transparency about the activity, not simply listing those who may engage in it—in this case, only some who engage in it.

The noble Lord, Lord Campbell-Savours, referred to what I said at Second Reading about what is in effect an alternative to this rather clunky mechanism being proposed by the Government. What I was proposing gets fairly comprehensively at the activity of who is lobbying on each measure that the Government bring forward. The noble Lord, Lord Campbell-Savours, may wish to note that my Amendment 115 is intended to get at that. It is an alternative to what the Government are proposing and it would actually deal with that particular problem. My noble friend may wish to bear that in mind in responding to the amendments because I am not sure he has established that there is a need for this part of the Bill, certainly not compared with the alternative that I am putting forward, which actually gets at the nub of ensuring transparency of lobbying.

[Lord Campbell-Savours]

If I might add to that, particularly if there are only 350 registrations.

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[Lord Tyler]

I referred specifically to the non-ministerial government departments, on which the noble Lord, Lord Rooker, made a very valid point, because they are not within the hierarchy of departments responsible to the Permanent Secretary, in the same way as other civil servants. So I do not accept that. The addition to which he specifically referred would have considerable merit. I would look at that very carefully, and I hope that my noble friend the Minister will, as well.

Unlike others, I accept that we are making a limited addition to the transparency of the whole process with the register. Far more important is to make sure that the meetings that take place with whoever is lobbying are as transparent, timely and accessible as we can make them. What surely should not be limited should be the encounter with such critical political decision-makers and their advisers as the special advisers attached to senior Ministers. Therefore, I hope that my amendment will find favour with the House and with my noble friend the Minister.

[Lord Norton of Louth]

My Lords, I have amendments in the grouping as well. My amendments have similar aims to those of the noble Lords, Lord Hardie and Lord Rooker, and of the noble Baronesses, Lady Royall and Lady Hayter. I was very attracted by the amendment tabled by the noble Lord, Lord Rooker, because of the breadth of what it covers. However, I also noticed an omission; it does not encompass senior members of the Civil Service but confines itself to Permanent Secretaries. I think that there is a problem there.

When this Bill was considered in the other place, the point was well made that it appears to have been written by people who do not understand lobbying—clearly people who have not read the book by the noble Lord, Lord Dubs. If it helps, I have a copy of his book on my shelf.

There are a number of problems but, as has been identified, Clause 2(3) is particularly problematic as it is so narrow. If you are going to lobby, the target is normally the Minister, and you therefore have to focus on the channels for reaching the Minister. The Permanent Secretary is not a significant channel for this purpose. Other officials will deal with that particular policy area—or a special adviser or the parliamentary private secretary. In saying that, I have nothing against special advisers; they play an extraordinarily valuable role from which Ministers and civil servants benefit. Parliamentary private secretaries also play a valuable role, so both should be included in the measure.

I know the objection as regards PPSs will be that they are private members, but increasingly they have been drawn within government. They are now mentioned in the Ministerial Code and are subject to certain requirements under it. Therefore, they are particularly good channels for reaching Ministers. We should encompass within the Bill’s remit all those who are being lobbied for the purposes of affecting public policy. The amendment of the noble Lord, Lord Rooker, does a valuable job in that regard, but one could add to it. I suspect that between now and Report we could come up with an amendment that brings together the various points that have been made and ensures that if we are to go down this route—and I am not persuaded that we should—those who are lobbied with a view to affecting public policy will be included in the Bill.

As it stands, Clause 2 is too narrow and, as I say, Permanent Secretaries should not feature significantly in it. I commend the various amendments that seek to widen the provision, so that if the Government go down this route at least they will do so effectively.

[Lord Kerr of Kinlochard (CB)]

My Lords, I support the amendment moved by the noble Lord, Lord Campbell-Savours, provided that “government” is defined not as it is in the Bill but as it is in the amendments standing in the names of the baronial opposition Front Bench, by which I mean Amendments 33 and 43.

I approach all this with a certain bemused detachment. I have to intervene because the noble Lord, Lord Norton of Louth, appeared to imply that Permanent Secretaries are not important, although I am sure that he did not mean to do so. I say “bemused detachment” because none of this would ever have applied to me—not the Bill as it stands or with any of the amendments, even the wide-reaching, admirable amendment in the name of the noble Lord, Lord Rooker. I was never a civil servant. I was a Permanent Under-Secretary but I was never a civil servant. The Diplomatic Service is a separate service. I apologise for making a rather pedantic—indeed, possibly, pompous—point, but there is something wrong in the drafting. I was a public servant but not a civil servant.

When I was a Permanent Secretary I never met a consultant lobbyist, thus proving the point made by the noble Lord, Lord Norton. They do not come to see Permanent Secretaries. If you are Permanent Secretary at the Foreign Office, the people who come to see you are CEOs or chairmen of companies that are in trouble and want the help of an embassy or high commission somewhere around the world. They do not send government affairs people, so widening the definition would not bring in Permanent Secretaries—they come themselves. They certainly do not send a professional consultant lobbyist to see the Permanent Secretary or, I think, the Minister. I think they do to see special advisers, so I think that is a very important addition which has to be brought in. They tend to see the relevant desk or the Under-Secretary. They do not come near the Permanent Secretary.

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[Lord Wallace of Saltaire]

Perhaps we need to discuss between Committee and Report which definition of senior civil servants Ministers and various Members of the House wish to adopt. I was adopting my own understanding of the senior Civil Service, which is the 5,000 I mentioned.

I will be interested to hear from the Opposition whether they also need to be included in this. Again, that is something that perhaps the Opposition Front Bench and the Government should usefully discuss between Committee and Report. I come back to say that the best can be the enemy of the good in requiring too many people to be brought within the context of this Bill. I take the very powerful speech from the noble Lord, Lord Rooker, about non-ministerial departments to mind. I also take some of his other points about particular senior civil servants. We will consider all these points and, in that light, I trust that the noble Lord will be willing to withdraw his amendment.

[Lord Norton of Louth]

My Lords, I do not understand my noble friend’s point about numbers. It is irrelevant in the sense that it is the consultants who are doing the lobbying to those people. It does not matter how many they are. It is merely the fact that they are engaging with some of them that requires them to register.

[Lord Wallace of Saltaire]

The register is of lobbyists. If we wish to include in the register every single Member of Parliament and others with whom they interact, we would get into a very complicated business. The question is who you wish to define as a consultant lobbying—as Amendment 3 says—to government.

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[Baroness Hayter of Kentish Town]

My Lords, Amendments 54 and 74 are in my name and that of my noble friend Lady Royall. We support an independent registrar, which means independent of the industry as well as working independently of the Government. However, the matters over which the registrar must judge, the standards that he or she sets and the objectives set for the office have an importance to Parliament and to our standards and expectations. We believe that that requires an organic link to Parliament, not just to the Government of the day.

We think it appropriate that that link is to the elected House, which by its nature is responsive to the outside electorate and their concerns and interests. We recommend that the Minister, in making the appointment, should consult the Political and Constitutional Reform Committee of the other place and that, in similar mode, the registrar should report back to that committee on an annual basis.

We recognise the strength of the other amendments in this group, and we trust that the Minister will similarly do so and agree to take these away and bring back his own amendments on Report. I beg to move.

[Lord Norton of Louth]

My Lords, the principle in Amendment 74 of the registrar reporting is important. In my view, though, rather than reporting to a particular committee, it would be more appropriate to oblige the registrar to produce an annual report to Parliament itself. If it were going to be confined, I would not just confine it to the Political and Constitutional Reform Committee of the other place; I hear what the noble Baroness says, but there would also be a case for the Constitution Committee of you Lordships’ House being included as well. My preference would be for a report to Parliament, but I wholly support the principle that there ought to be a report. As the noble Baroness said, bringing the registrar within the scope of Parliament is entirely appropriate.

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[Lord Martin of Springburn]

I could live with that.

[Lord Norton of Louth]

I add my support to my noble friend’s amendment, but it does not go far enough. Partly for the reason he just mentioned, I would be more ambitious, along the lines indicated by the noble Lord, Lord Kerr. There is no reason why you cannot have a rolling publication after the event excluding, following the point made by the noble Lord, Lord Martin, the venue because that is not really germane. It is the substance of the discussion that matters. I would be more ambitious than my noble friend Lord Tyler.

As the noble Lord, Lord Campbell-Savours said, the amendment links to what I am arguing. It moves us in the right direction, so I am fully in support; it is just that I want to go further because this is a database of meetings between Ministers and external organisations and we need to extend it in terms of who is being seen. Just confining it to Ministers creates problems, so we need a larger database, or we certainly need to be able to identify those who are being lobbied.

[Lord Wallace of Saltaire]

My Lords, I am fascinated to hear this great outbreak of revolution in transparency. We thought that we were set out on a constructive step forward on transparency. I am not sure that I want all Ministers’ and civil servants’ diaries published the day after they meet anyone, which I think is what the noble Lord, Lord Norton, was beginning to suggest.

I will try to answer the various probing amendments. A number of them, starting with Amendment 54, are about stiffening the independence of the registrar. Amendment 54 would require the Minister to consult with the Political and Constitutional Reform Committee before appointing the registrar. I am not aware whether that has yet been requested by the committee itself, but it is an interesting proposal.

The amendments of the noble and learned Lord, Lord Hardie, would prevent any person who had been a civil servant or a political adviser in the previous five years being appointed registrar. This is also thoughtful, and designed to provide assurance regarding the independence of the registrar which, of course, the Government are entirely committed to establishing and maintaining. Under the Bill, the registrar will be appointed according to the public appointment principles of open and fair competition and the Minister will be able to dismiss the registrar only where they are satisfied that there are reasonable grounds that he is unable, unwilling or unfit to perform the functions of his office. If thought unreasonable, any such decision by a Minister could be challenged in the usual way, by judicial review. The registrar will be independent of the lobbying industry and the Government, and will have a clear remit to operate independently of the lobbying industry and the Government.

The noble and learned Lord, Lord Hardie, seeks to extend the positions that will not be eligible for appointment as registrar to capture those officials who would be required to submit information to him or her under his new clause. The Government are not persuaded of the case for the noble and learned Lord’s additions, and would therefore resist this amendment.

The Government recognise the importance of ensuring that the registrar is independent. We are confident that our proposals secure that, but are grateful for these suggestions and will of course consider whether they should be pursued further.

Amendment 63 has attracted a considerable amount of support. It would require that, in addition to the statutory register of consultant lobbyists, the registrar would be required to keep and publish a central database of ministerial meetings with external organisations.

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[Baroness Hayter of Kentish Town]

The words “relevant select committee” could be used.

[Lord Norton of Louth]

On that point, legislation does write in the name of committees or the equivalent, so it is quite possible to do that.

[Baroness Hayter of Kentish Town]

Not only does the noble Lord, Lord Norton, supply me with his wonderful Hull students to help me with my work, but he comes up with answers to my questions, for which I thank him.

What seems like a small amendment about writing the committee in is an important signal. I am sorry that we keep hearing the words “not persuaded” from that side. Having had the earlier discussion about Part 2 of the Bill, we very much hope that the Government will be persuaded by what they hear. I had hoped that some of that might have bled into Part 1 of the Bill and that the Government might have been persuaded by some of the things we said. However, we will leave it here, although we may want to come back to some of it at a later stage. For the moment, I beg leave to withdraw the amendment.