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

Lord Norton of Louth Excerpts

Monday 13th January 2014 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I will speak briefly, simply because my Amendment 136 is grouped with the other two in this grouping. My amendment is slightly different from the others, and signals what we will need to do if some of the amendments we are discussing this afternoon are not accepted. My amendment seeks to change the title of the Bill. As it stands, it is Transparency of Lobbying, but the Bill does not enhance transparency and it is not actually about lobbying. It is about lobbyists; it is about status, not about activity. There is a mismatch between the Short Title and the Long Title. The Long Title makes clear what the Bill is about: it is about the registration of lobbyists; it is not about transparency of lobbying. As I say, this is really to signal later debates, but unless the Bill is changed quite substantially, we will have to amend the title to bring it into line with what the Bill actually contains.

[Lord Campbell-Savours (Lab)]

My Lords, I want to speak for less than a minute; I spoke at some length on this matter in Committee. The Bill is deceiving the public. The public expect the matter of the registration of lobbyists to be dealt with in this legislation. However, Parliament is now considering a Bill which excludes the vast majority of people in the industry. I object and I hope that the amendment of the noble and learned Lord, Lord Hardie, is accepted by the House.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, we shall come on to the second point made by the noble Baroness. I think it is the subject matter of the next group of amendments. We would not know any more just by listing the names of in-house employees who engaged in lobbying. You would still not know from doing that—and that is what this amendment seeks to do—whether that person was actually lobbying with regard to planning permission or not. That is why it is important that the parallel provisions which the Government are doing in quarterly returns as to which people Ministers and Permanent Secretaries are meeting is an important part of the whole picture. We shall deal in a moment with the points made by the noble Baroness because I think that she is missing out that crucial part.

[Lord Norton of Louth]

Just on the example the noble and learned Lord was giving of the Scotch Whisky Association, if it was to buy in a consultant lobbyist to advise it but did the lobbying itself, how would that be caught by the Bill?

--- Later in debate ---

[Lord Norton of Louth]

My Lords, briefly I support the comments of the noble and learned Lord, Lord Hardie, and those of my noble friend Lord Tyler. I also associate myself with my noble friend’s comments about special advisers. He is absolutely right. This Bill is flawed in two major respects. First, political consultants rarely lobby directly. They advise clients and the clients do the lobbying. That point was well made in the other place, not least by those who have direct experience of the lobbying industry.

The second flaw is that when they do lobby, they rarely lobby Ministers or Permanent Secretaries directly. We know that from the debates in this House from those who have served as Ministers and Permanent Secretaries. The amendment before us goes at least some way to addressing that second problem. The Bill remains flawed and we want to look at that later in more fundamental respects, but at least this amendment would try to make a bad Bill less bad.

[Baroness Williams of Crosby (LD)]

My Lords, I strongly support my noble friend’s amendment and that put forward so effectively by the noble and learned Lord on the Cross Benches. Having been a Minister, I want to say a few words about what in my view is the absolutely vital importance of including special advisers in this Bill. I would add to that the first three ranks of the Civil Service, by which I mean under-secretary, deputy secretary and Permanent Secretary.

I find it very puzzling that the specific rank of civil servant mentioned in the Bill is that of Permanent Secretary. I can think of almost nobody less likely to be open to exploitation by lobbyists. To be a Permanent Secretary, you have to be somebody of outstanding integrity, whose honour cannot be doubted, who will be respected in his or her own department and who sets the quality and standards of that department. You are, frankly, the last woman or man to be likely to fall for the more dodgy approaches of some slightly dodgy lobbyists. In fact, it is close to inconceivable that this particular person is likely to be open to temptations of a kind that all of us would eschew.

However, I am asking the Government to include the first three levels because, as has been very rightly said, the much more tempting position is that of people near but not at the top. For example, I was for some years on the Government’s Advisory Committee on Business Appointments. We looked consistently at what the gap should be between a senior civil servant leaving his or her department and being free to take up other employment afterwards. Members of this House will know that certain departments have very close links with the private sector and that, therefore, their officials carry with them a level of expertise that is quite exceptional. They are indeed very attractive recruits to private business because obviously they have a great deal of experience and knowledge.

Generally speaking, in the Advisory Committee on Business Appointments, consideration is given to how wide the gap should be between leaving one’s employment as a civil servant and joining a private industry with which one may previously have had some kind of relationship. It is extremely tempting, obviously, for somebody to join a private sector business when they have a great deal of knowledge that would be useful to that business, but the longer the gap the less useful that knowledge may be. It is therefore strange, to say the least, that the level of seniority in the Civil Service that makes an individual so attractive to major industries that have close relations with a certain department should not be covered by this Bill.

I have suggested that we should limit that practice as much as possible. I quite agree with my noble and learned friend Lord Wallace of Tankerness, but it is no good having what he called a laundry list or a telephone list of names. Deputy and under-secretaries are very limited in number and particularly attractive to those who want their expertise. I do not doubt that both sides behave with full honour but I also think that lobbyists will be very attracted to people in that situation, and therefore it would be strange if the Bill did not cover that particular group of civil servants.

When I first became a Minister the number of special advisers was extremely closely controlled. According to Prime Minister Wilson, the absolute maximum number of special advisers any Minister, however senior, could have was two. They had to be shown to be knowledgeable about the kinds of organisations with which that Minister would interact; for example, in my own case as Minister of State for Education and Science, it was very clear that the special advisers I needed had to be able to show expert knowledge and evidence of science, universities or the education of children in schools. The two I had were both eminently well suited in that way. But the general attitude towards special advisers was very limited. They were experts, they were there to advise, but they were not there to substitute.

That has rather changed over the years. There are now many more special advisers than there were. There have been one or two worrying cases where a special adviser has taken upon himself or herself responsibility for something that clearly should belong to the Minister. My noble friend Lord Tyler gave an example. Some of your Lordships may remember the famous occasion when a special adviser told her Minister that it was a good time to issue bad news and crises were ideal because they meant that the bad news was hidden by the interest of the media in other issues. I do not want to push that very far, but there are certainly a few cases—not many—where special advisers have behaved as if they were autonomous, and beyond what seems to be either the wishes or the desires of the Minister concerned. Some people may remember that the previous Prime Minister, Mr Gordon Brown, had difficulties with at least one of his special advisers, which did not do him or his reputation any great good, despite the fact that he is undoubtedly a man of integrity and honour himself.

Quite straightforwardly, that means there is a very strong case indeed for recognising that special advisers are, as the noble and learned Lord, Lord Hardie, and my noble friend said, something of a highway to a Minister. They are the quickest route to his personal information; they are probably closer to him than anyone else in his department, with the possible exception of his PPS. Often, they are also people who have their own agendas, and those agendas may not invariably be the same as that of the department. I therefore feel that it is important that special advisers should be held accountable. Indeed I would go further and say that it is crucial that they should be held accountable, and that this Bill takes congnisance of the relationship between a Minister and a special adviser.

Therefore I hope that the House gives full consideration to the proposals in these amendments and will recognise that, without some movement towards including special advisers, the effectiveness of this Bill will be very much limited. I have already argued for the top three ranks of the Civil Service. I hope that the amendment will be seriously considered in this House, and that the Government will reconsider the narrowness of the interpretation of which people are open to lobbying. As the Bill stands, it is steadily getting better. I pay full credit to my noble and learned friend Lord Wallace of Tankerness and his noble friend Lord Wallace of Saltaire for the improvements that have been made to this Bill, but we should include special advisers in evidence that we are serious and committed to the idea of limiting unfortunate and ill-motivated lobbying to those who might be effecting it.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I know that my noble friend knows me well enough and I hope that I have made enough appearances at this Dispatch Box for noble Lords to know that I would not wish to give the kind of undertaking that my noble friend seeks if it were to raise an expectation that I am not necessarily able to deliver on. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Norton of Louth]

Can my noble and learned friend clarify what he has said? If a consultant lobbyist lobbies a Minister directly to achieve policy X, that consultant lobbyist must register. If that consultant lobbyist only lobbies the special adviser, who then advises the Minister, who decides to implement policy X, they do not have to register. The second point is on civil servants. Does he think that lobbyists will lobby any passing civil servant as opposed to those members of the senior Civil Service who have responsibility in particular areas, and are therefore a very narrow and usually clearly defined group?

[Lord Wallace of Tankerness]

On the second point, I was responding to the amendment as it is tabled, which does not narrow it down at all to senior civil servants—it applies to all civil servants. I am sure that bodies make arrangements with junior officials as well as with members of the senior Civil Service. On the issue of special advisers, I cannot elaborate on what I have already said.

--- Later in debate ---

Moved by

[Lord Norton of Louth]

26: After Clause 23, insert the following new Clause—
“Publication of communications
(1) A Minister of the Crown, at the time of making a statement relating to any of the matters referred to in section 2(3)(a) to (d), shall publish details of any oral or written communication received in respect of that matter by the Minister of the Crown, or civil servants within the Minister’s Department, or a special adviser.
(2) Communications are exempt from the provisions of subsection (1) if in the Minister’s judgment they contain material that is commercially sensitive or have the potential to affect adversely national security.”

[Lord Norton of Louth]

My Lords, my amendment gets, I think, to the heart of Part 1 of the Bill. The purported purpose of Part 1, as we have heard, is embodied in the first three words of the title “Transparency of Lobbying”. The problem, or rather problems, is that Part 1 does not deliver transparency—it adds little, if anything, to what is already known—and it is not concerned primarily with lobbying. It covers lobbyists rather than lobbying. It registers those who engage in the activity, or rather some of those who engage in the activity, but does not enlighten us as to the particular activity. We may know who some of the lobbyists are, but not necessarily what they are doing in respect of individual measures. As has been argued throughout the stages of this Bill it will not capture the totality of those who are professional lobbyists. Indeed, given the exemptions, it will catch very few. Precisely how many is a matter for conjecture as the Government admit they do not know. The Bill introduces a new bureaucracy for the purpose of registration but achieves nothing substantial in terms of enhancing the transparency of lobbying.

My amendment is designed to ensure that the Bill does what it says on the tin, or rather what it says in the title. It shifts the emphasis from those who lobby to those who are lobbied. It is also comprehensive. By requiring Ministers at the time they make a statement on policy or any of the matters listed in Clause 2 to publish details of those who lobbied them on the matter, one ensures public awareness of who has sought to influence the outcome. Any representation made to anyone in the department would be within the scope of the provision, thus ensuring that those lobbying are not able to avoid their activity being made public. It would capture lobbying, whether direct to the Minister or indirect through someone else in the department. It would not matter whether the lobbyist was a consultant lobbyist, an in-house lobbyist or a part-time lobbyist: all would be caught by the provisions of the clause.

The clause therefore delivers transparency of lobbying. The principal case for the amendment is compelling. What are the arguments against? In Committee, the Minister argued that the objection was essentially practical. I do not accept that; I do not think that it is impractical. Under my amendment, transparency would be achieved through developing existing practices. There is already the quarterly publication of details of ministerial meetings. Ensuring publication of details of those who have lobbied at the point of a policy statement is thus not a paradigmatic departure from what is done already. As my noble friend Lord Tyler explained in Committee, it is achievable. Much information is already published, but it is a case, as he said, of being hidden in plain sight. As he went on to say:

“Indeed, by the time that department does publish that information, the influence that has been exerted over important legislation might have come and gone, right through Parliament. There is simply no opportunity to see what has happened … a simple and searchable central database for all their meeting data would mean that we could take the sting out of the calls, here and elsewhere, for an enormous lobbying register. We would have immediate access”.—[Official Report, 5/11/13; col. 164.]

As he mentioned, his office managed to draw together material from different departments, so it would hardly be beyond the wit or the limited resources of government to achieve. Indeed, I think that the case for that has been made today by my noble and learned friend Lord Wallace of Tankerness in what he said about the further publication of details. We are already moving in that direction, so I believe that it is achievable. It is a step—it might be more than a small step, but it is none the less a step—from what my noble friend developed to what is encompassed in my amendment.

The problem, as I argued in Committee, is not one of resources but one of political will. The Government have produced a mechanistic and very limited provision in order to be seen to be doing something. They have sought to hide just how limited it is by the use of the term “Transparency of Lobbying”, when, as I have said, it does not deliver transparency and it is not about lobbying. If the Government are serious about delivering on what the Bill says in the title and ensuring that the public can see who has lobbied government on a particular policy, they have to change the emphasis from lobbyists to lobbying, from status to activity.

Accepting this amendment would ensure that we are making a great stride towards transparency. As the Bill stands, it is not so much a great step forward as a faltering tip-toe. If the Government are keen, and have the political will, to deliver transparency, they should embrace this amendment. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I stand by what I said when I replied to the question asked by my noble friend Lord Tyler in the first group of amendments. Obviously, the Government have not had an opportunity to discuss the matter, as I have been here since my noble friend’s amendment was passed. I have had no opportunity to discuss with ministerial colleagues and others how we will respond.

[Lord Norton of Louth]

My Lords, I agree with my noble and learned friend in that I certainly welcome what he announced earlier about the Government moving towards greater provision of information. However, I disagree with him on all the other points. I am inclined to ask, “What price transparency?”. I am not persuaded by the argument that, “Oh dear, this is all too much trouble”. The body of policymakers is a relatively small number of people who would actually be affected. The Minister seems to envisage some great body of civil servants that would be brought within this provision—they would not. It is doable and it is a fundamental point of principle. We have to go down that route. Either we are going to have transparency or we are not really going to do very much at all as far as this Bill is concerned. This is absolutely fundamental to Part 1 and this is the last chance we have to get it in order. Given the support that has been expressed for the amendment, I would like to test the opinion of the House.