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

Baroness Royall of Blaisdon Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Tyler]

My Lords, I will speak to Amendment 25, which is in my name and that of my noble friend, and is a very specific amendment. Before I do so I will respond to the noble Lord, Lord Rooker. I have a very open mind about the wider additions that have been proposed in different parts of the House, and I shall listen with great interest to the noble Baroness—whichever noble Baroness that will be—when she speaks to Amendment 18, as that may well clarify our minds.

The noble Lord, Lord Rooker, makes a very interesting point about non-ministerial government departments, precisely because they are not in the hierarchy of any department. They have a different relationship to the Permanent Secretary and the Minister from all the other civil servants. While I would be very worried about going too far down the list of civil servants—down the hierarchy—he makes a very valuable point and I shall look forward to hearing what the Minister has to say on it.

Rather late last night, after leaving the House, I renewed my acquaintance with a very interesting book, Dr Andrew Blick’s history of the special adviser in British politics, published nine years ago in 2004, which is entitled People Who Live in the Dark. That is a quotation from Clare Short that some of my noble friends may recall. Very many distinguished Members of this House, on both sides, are of course former special advisers, and I do not in any way intend what I have to say to be a slur on their reputations. Of course, it is also true that some important Members of the other House have been special advisers, not least Mr Ed Miliband and Mr Ed Balls, both of whom feature very prominently in Dr Andrew Blick’s account of how the Treasury clique operated under Gordon Brown. Then, of course, there was the “special special adviser”, Mr Alastair Campbell.

No sooner had I got myself to sleep last night by reading Andrew Blick—it was rather late—than I woke up again at 4am. I usually find that a good book sends me straight back to sleep, but unfortunately Dr Blick’s book is so interesting that I was awake for several more hours this morning. Therefore, if I am slightly less articulate than usual, that is entirely his fault. I will quote from page 313:

“The Thatcher years had a centralised, private-sector flavour, with individuals making a great impact. In Major’s premiership, temporary civil servants were less remarkable, subject to more formal regulation and perhaps more intrigue-prone. Finally, the Blair period saw expansion in terms of significance and numbers, and the exercise of pronounced managerial and media roles, leading to high levels of publicity”.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I realise that the noble Lord is quoting from a book, but I point out that recent figures showed just last week that the number of special advisers has risen quite extensively under this Government as compared to the previous Government.

[Lord Tyler]

I am absolutely aware of what the noble Baroness has said, and I will come to that very point. Of course, it is not just a question of the numbers but about the role they play. I am trying to demonstrate that this is not a new problem but is certainly a central issue for the Bill and hence for my amendment.

Dr Blick goes on to say:

“If there was a change over time, it was in aides becoming more firmly established and accepted, and, to a limited extent, officially defined”.

Therefore they are recognised there and so they should be recognised in this legislation.

Then, as now, these political appointees acted as gatekeepers for senior Ministers. Then, as no doubt now, too many lobbyists found their way to the top decision-makers by this route. It was their particular way forward. If the spad did not feel that it would be politically helpful for the lobbying exercise to reach his or her Minister, it often failed at that hurdle. However, in many cases that was and is the gate through which the lobbyist has to go. It is certainly true in the present Government—I endorse what the noble Baroness said.

With both Labour and Conservative Ministers, we know that this was the route taken by representatives of the Murdoch media empire. Since 2010, there have been two serious scandals involving lobbying at this level that resulted in resignations. In one case it involved a spad and in another an adviser who clearly thought that he was a sort of special spad—a sort of spadoid. As I indicated at Second Reading, it would be ridiculous to exclude those extremely important decision-makers who are outwith the normal hierarchy of responsibility to the Permanent Secretary.

The advantage of the amendment is that it is simple to add spads into the regime. Consultant lobbyists who approach them should have to register, and the spads should have to publish details of their meetings with all external organisations, in precisely the same way, I am glad to say, as the coalition Government have now insisted that Ministers should do. I understand the arguments for extending the scope of transparency still further down the Civil Service chain, but the noble Lord, Lord Rooker, made a very valid point. It will be difficult to know where to stop, if you go down the departmental hierarchy. The cases that he mentioned are not within that hierarchy, of course. If we went further down that hierarchy, there would be a substantial administrative burden; for the move to be effective, hundreds and perhaps thousands of civil servants would have to publish their diaries. As it is, the Permanent Secretary is responsible for what happens at lower levels.

I welcome the fact that this Government have, for the first time, introduced very considerable transparency in terms of the meetings that take place. As I said at Second Reading—the noble Lord, Lord Campbell-Savours, referred to this—there is an amendment that would address the particular difficulty that the public, the media and parliamentarians have at present in identifying, in precise terms and quickly, when a meeting has taken place of this nature, with whom and on what subject. Therefore, it is extremely important that we have that clarity and access. Adding hundreds more people into the declaration regime would risk giving an excuse for delay in the publication of details about meetings with those who strongly influence decision-makers, and those who really do take those decisions—who must surely be the political appointees, special assistants and senior Ministers.

As we have heard in this debate, the lobbying register proposed by the Government is limited.

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If anything is to be done about Parliamentary Private Secretaries, it should be borne in mind that they are usually young Members of Parliament who have not necessarily established themselves in their constituency. They are still building up their reputation and getting known, and they are as keen as mustard and going to all the meetings. We should be careful that we do not put that burden on them if we can help it.

[Baroness Royall of Blaisdon]

My Lords, I rise, with my very messy notes, to support Amendment 3 in the name of my noble friend Lord Campbell-Savours and to speak to Amendments 18, 22, 29, 32, 33 and 36. I do so while congratulating the Government on their unique feat of uniting transparency campaigners and the lobbying industry against the Bill—including on the issue that our amendments seek to address, namely the scope of those who are lobbied. I speak as someone who has been lobbied as a Back-Bench Peer, as a Minister and as a member of the shadow Cabinet. All the while I was a legislator, but I have also been a special adviser, albeit to the leader of the Opposition. I agree with my noble friend Lord Rooker that it is important to include members of the shadow Cabinet in such legislation. I hear what the noble Lord, Lord Martin, has said about the fact that they do not have the infrastructure that is properly accorded to a Minister of the Crown. However, these people aspire to be in government and perhaps within the next year they might be in government. Therefore, for their own protection in many ways, they should be included.

As regards PPSs, again I hear the rightful concern and warnings of the noble Lord, Lord Martin. These people are perhaps fairly new to Parliament but they have real access to power. We should consider properly whether they should be covered by the legislation. The fact that the Bill confines the scope in Clause 2 to,

“oral or written communications made personally to a Minister of the Crown or permanent secretary”,

demonstrates a profound lack of understanding of the lobbying industry. In evidence to the Commons Political and Constitutional Reform Committee, Gavin Devine, chief executive of MHP Communications, stated:

“The only conclusion one can reach about the Bill is that the Cabinet Office has no understanding of what companies like MHP Communications actually do”.

I hear the Minister when he says that there has been interaction with the lobbying industry about this part of the Bill, but perhaps there has been a dialogue of the deaf. I do not mean to be rude but I do not think that there always has been proper listening; otherwise we would not be confronting some of the issues that we now face.

At Second Reading, the noble Baroness, Lady Williams of Crosby, said that,

“the Permanent Secretary is probably … the last civil servant to be lobbied in a controversial situation”.—[Official Report, 22/10/13; col. 979.]

Listening today to the noble Lords, Lord Kerr and Lord Armstrong, it is clear that the Permanent Secretary is always the last civil servant to be lobbied, and not only in a controversial situation. The speeches made today by the noble Lords, Lord Armstrong and Lord Kerr, were very important. We should also read very carefully what the noble Lord, Lord Kerr, said about the Diplomatic Service. The whole industry of lobbying our Diplomatic Service should be looked at. The lobbying of government is not just about Bills in play but also about future policies.

On special advisers, I welcome and support the amendment in the name of the noble Lord, Lord Tyler. However, I do not think that it goes far enough. One has only to think of the demeaning tale of Adam Smith and the News Corporation lobbyist Fred Michel, who would not have been touched by this Bill—and yet that case was one of the catalysts for the Bill. It is interesting to note that the Committee on Standards in Public Life has today published a report on lobbying. One of the recommendations from that body is that special advisers to Ministers should be subject to tighter rules about their contacts with outsiders, which probably is something with which the majority of this House would agree. I hope that the Minister will move on that swiftly.

The lobbying industry itself has said many times during discussions about this Bill that,

“we do not make personal representations to Ministers or Permanent Secretaries”.

So one has to ask: what is the Bill trying to do? The noble Lord, Lord Aberdare, asked some incisive questions. Indeed, the House of Lords Constitution Committee points out that,

“even those who consider that ‘transparency in lobbying is a significant problem’ do not appear to be of the view that the specific matter of consultant lobbyists meeting ministers and permanent secretaries needs legislative correction. Indeed, some witnesses told the PCRC that if this really is the problem that needs addressing, it does not require legislation to fix it and could be dealt with simply by the Government changing the rules that apply to ministers and permanent secretaries”.

However, as we have this golden opportunity of the Bill before us, we are obliged to do whatever we can to ensure that there is a healthy and transparent relationship between government and lobbying and to resolve the problems that we have seen over the past months and years.

In their response to the Constitution Committee, the Government said:

“Ultimately, it is ministers and permanent secretaries that are responsible for the decisions taken within their departments and the focus of the register is therefore on communications with those key decision-makers whose meeting details are published”.

Yes, ultimately, the responsibility for decisions is taken by those at the very top. However, we know that the influencing of policy-making and of legislation occurs at a much lower level.

I certainly agree with the amendment in the name of my noble friend Lord Rooker and the scope that he mentions in his Amendment 23. The exposé that he gave of non-ministerial government departments was very important. I hope that the Minister will look at that very closely. These bodies, and those who work in them, are extremely influential in terms of governing in this country.

The noble and learned Lord, Lord Hardie, mentioned the devolved institutions, which, again, need to be looked at. While I fully recognise that devolved institutions make their own rules and regulations pertaining to this issue, it would be terrific if we could get to a situation where the rules pertaining to all the governing bodies of the United Kingdom were similar. That would make it much easier for the Governments of the nations and for those who are doing the lobbying.

Our Amendment 18 would widen the scope phenomenally to Members of both Houses of Parliament. I am sure that many Members of this House would think that that perhaps widens the scope of the Bill too far. However, we should reflect on that because we all recognise the important role that lobbyists play and the invaluable information that they provide. We should also recognise that in lobbying they have a profound effect on us as legislators and on the laws that we pass. We therefore need to keep that in mind, because it is a matter of being open and transparent so that the public know what or who has influenced the laws that we are making all the time. As everyone’s inboxes in relation to this Bill will testify, we are heavily lobbied.

My noble friend Lord Rooker raised an important point about the revised order of consideration. I hope that the Minister will confirm that the revised order will be Parts 1, 3, 2 and then 4. That would be the proper and logical way of doing things.

The right honourable Andrew Lansley suggested on Report in the Commons that to extend the scope of those lobbied would be too bureaucratic. He imagined 5,000 senior civil servants all publishing their diaries. I believe that that is a poor excuse because we all know that the system does not have to depend on the publishing of diaries. I very much welcome what the Government have done in publishing ministerial diaries but perhaps we could look at some other way of ensuring that there is a less bureaucratic means of having an open and transparent way for the public to know who is being lobbied and on what issue. Now that we have longer before Report on this Bill I hope that the Government will look at that problem and perhaps come up with a way of ensuring there can be a system that is not overly bureaucratic and provides the openness and transparency required.

Transparency in the 21st century means that the public not only want to know who is being lobbied but, I believe, that they have the right to know. As the noble Lord, Lord Norton of Louth, pointed out, this Bill is indeed entitled “Transparency of Lobbying”. It presents us with an opportunity to address the concerns of our citizens who have lost trust in the political system to the detriment of our democracy. They rightly want to know who is being lobbied and what power is being lobbied. We all know that power does not just reside with Ministers and Permanent Secretaries. I trust that the noble Lord will reflect on these points.

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[Lord Tyler]

My Lords, I read with interest Amendment 12, tabled by the noble Lord, Lord Rooker, because there is a serious point here, although I am not sure that that is the right way to approach it. As I mentioned earlier, way back in the 1980s, I headed a public affairs consultancy. I recall that on many occasions I and my colleagues would advise clients. They were not, on the whole, commercial clients. They were usually trade associations, local authority associations, environmental groups, the Countryside Commission, the Rural Development Commission, and so on. Ministers and their senior team would always rather hear from the horse’s mouth, not from me as an intermediary. I had some experience; I had previously been a Member of Parliament; but it was far more effective for bodies of such reputation to speak directly to Ministers. So there is the definition suggested by the noble Lord, Lord Rooker, that not just those who are themselves making representations but those who, in return for payment, provide professional advice on how to lobby should be within the subsection.

However, we may be losing the effective target for the legislation. It would not be appropriate to deal with the next group of amendments in great detail, but the critical issue is who meets who when and what is discussed. In those days, I may have advised a client to take a particular line, think about the implications, talk to particular people in whatever context or perhaps given them bullet points as to what to say. For example, I recall advising a client on what approach they should take when talking to the then Prime Minister about which of the options should be supported by the Government for the Channel crossing. We went into detail about exactly what should be said. We did not go to see the Prime Minister in No. 10, and Sir Nicholas Henderson, who was the leader of that particular team, did not take a great deal of advice from me—he was far too experienced at dealing with Prime Ministers, not least Mrs Thatcher.

The critical issue is the details of the meeting: who, when and how? That is why, in the next group of amendments, we will address that to a greater extent. It is important that we concentrate on that. I give credit to the present Government because they have made that a great deal more transparent than it has been in the recent past. That is a real step forward, and we must make sure that the Bill builds on that.

[Baroness Royall of Blaisdon]

I support these probing amendments from my noble friends Lord Rooker and Lord Campbell-Savours, and certainly look forward to the Minister’s response. On Amendment 30, I certainly agree with my noble friend Lord Rooker that such an amendment would afford important protection to the Minister and his office but, as he acknowledged, that should be a matter of good practice, and I am not sure that one can always legislate for good practice. It will be interesting to hear the Minister’s views.

My noble friend Lady Hayter and I have tabled Amendments 21, 28 and 48 to 50. There are three essential issues: the inclusion of electronic communications; the inclusion of lobbying about European legislation; and the exclusion of parts of the schedule that limit the definitions of lobbying. In the 21st century, I think we would all accept that electronic communications are probably the principal way by which we all communicate, yet the Bill defines communications as “oral or in writing” and fails to make clear whether electronic indications are also included. I hope that the Minister will be able to clarify that. If electronic communications are not included, I hope that the Government will consider that issue and, if not, I will certainly come back with an amendment at a later stage.

Apparently, the Australian register of lobbyists states that communications with a government representative includes oral, written and electronic communications, and the USA register provides that the term lobbying contact means any oral or written communication, including an electronic communication. Were electronic communications not to be included, there would be a loophole. I am sorry to keep banging on about this, but Jeremy Hunt’s texts to News Corporation lobbyist Frederic Michel about Rupert Murdoch’s proposed takeover of BSkyB were in electronic form. It is important that that should be captured.

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[Lord Wallace of Saltaire]

My Lords, I thank noble Lords, in particular the noble Lord, Lord Rooker, for the detail of the various amendments. I will take them all back and consider them. First, on Amendment 10, it was absolutely the intention of the Bill to capture consultant lobbyists who lobby as a profession, not the neighbour who is lobbying for a friend about a housing development, or whatever, for no payment. That is part of informal campaigning, which is different from the professional consultant lobbyists with whom Part 1 is intended to deal.

I clearly need to have a long tutorial with the noble Lord, Lord Rooker, and I promise that I will give him a good deal of my time, but I hope that that gives him some comfort. I also take the noble Lord’s point, which I had noted in the committee report, about not only direct lobbying but the sort of indirect lobbying that comes through professional advice and the danger that public affairs companies will retreat from saying that they are lobbying to saying that they are merely providing advice. We clearly need to ensure that we cover that.

On the question of VAT, the Government were looking for a simple means to exclude the very small fry from the Bill. It was felt that whether or not a business has a large enough turnover to have to register for VAT was the simplest and easiest method to exclude the small fry and include the large ones. That is the intention. If the noble Lord has a better way to do it, I look forward to discussing it, but there is nothing more intended by that provision.

The noble Lord, Lord Campbell-Savours, had an interesting thought about whether communications include interventions. I am advised that interventions are communications, but, again, we will consider in detail the subtle differences that may occur. I am certainly advised that it is established practice in legislative drafting that the now ubiquitous nature of electronic communications is accepted as being included in the term “writing”, except in cases where the context specifically demands otherwise. The Bill therefore makes no distinction between a handwritten note, a typewriter-produced letter—if such still exist—a dot matrix-printed telegram, a fax, an e-mail, a text message, a personal tweet or a BlackBerry messenger conversation, so I assure the noble Lord that the amendment is not necessary.

On the inclusion of “European” in the Bill, I understand that the intention is that lobbying the UK Government in respect of European legislation will be captured. Our understanding is that lobbying with respect to government policy, including government policy towards the European Union, is covered by the Bill but we will look at that to make sure that it is fully covered.

[Baroness Royall of Blaisdon]

My Lords, that is very welcome but would that include our officials who are working in Brussels?

[Lord Wallace of Saltaire]

Let me take that back and be absolutely sure. We are all conscious that, as has been said, Brussels is the seat of lobbying on the largest scale, after Washington. We need to make sure that the interaction between those huge American law firms based in Brussels, which have large lobbying activities, and others is not excluded from the Bill. I will certainly take that back.