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

Lady Hermon Excerpts

Monday 9th September 2013 Commons Chamber

[Mrs Main]

I am just about to draw to a close because I would like to hear about the amendments tabled by other Members. This is not about filibustering or talking out the Bill today.

[Lady Hermon (North Down) (Ind)]

rose—

[Mrs Main]

I will take one intervention from the hon. Lady and then I will conclude.

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[Lady Hermon]

I am most grateful to the hon. Lady and I am intrigued, and very pleased, to see her new clause tabled for discussion. I am particularly interested that she has chosen to define “government” in a way that excludes the Director of Public Prosecutions. As she will know, the present definition of Minister or permanent secretary includes the DPP, who is supposed to be independent. Will she confirm that she thinks the DPP should be excluded from the register?

[Mrs Main]

I hope the DPP is always considered to be independent, but if there is some legal reason why that should not be the case in the Bill, I would welcome hearing it. That is what we should be discussing today. I do not wish to speak for too long, but my concern is that ministerial lobbying that goes on at every level, including with persons of influence, is not captured by this Bill because the causal nature of some conversations and chats is not included. I would like to see that tightened up, including guidance on what ministerial conversations can be held after some of that subtle lobbying has been going on.

I am sorry if lobbyists are offended today, but I hope I am trying to deliver a level playing field for all lobbyists, and not have some hiding in a back room getting advantage while others are captured by measures in the Bill. I hope we can progress with that and achieve consensus on some of the amendments that will get rid of the worries that many of us have.

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[Chris Bryant]

What about electing the House of Lords? That is quite a good idea. My hon. Friend is absolutely right. I have always thought that it is wrong of the House of Commons simply to say that the rules of the other House should be written by the other House. To be honest, the House of Lords is part of the legislature—as much as we are—and if it is to retain that power, it is important that that is done within strict limits.

[Lady Hermon]

It is very kind and perfectly charming of the hon. Gentleman to accept an intervention.

I know that the hon. Gentleman is a stickler for detail and for getting things spot on, so may I ask him to correct a technical error, which I am sure was a slip of the tongue on Second Reading last week? The hon. Member for East Antrim (Sammy Wilson) spoke before him, and the hon. Gentleman referred to him as the “Irish Member”. As a member of the Democratic Unionist party, I do not think that the hon. Member for East Antrim would regard himself as Irish but truly British—true, true British.

[Chris Bryant]

I do not always get things right, it should be said—that is a well-established fact. In this case, I am more than happy to apologise to the hon. Member for East Antrim (Sammy Wilson) via the hon. Lady, who represents a seat in Northern Ireland but is as British and, quite possibly, more British than I am.

I commend amendment 48, which was tabled by my hon. Friend the Member for Nottingham North (Mr Allen), who chairs the Select Committee on Political and Constitutional Reform. It meets many of the concerns that many ordinary members of the public would express if they saw the Bill, and certainly the concerns expressed by Members on both sides of the House. Preparing someone to appear before a Select Committee is lobbying just as much as other activities. When I worked for the BBC we regularly acted out appearances before the Select Committee on Culture, Media and Sport. I always got to play Gerald Kaufman, which was one of the more enjoyable parts of my working career.

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[Mr Thomas]

I agree that pre-legislative scrutiny would have been extremely useful in respect of the Bill. New clause 7 seeks to create a more distinct scrutinising role for a Committee of the House in the event of any concern about a commercial lobbyist who takes up a senior position in government, and my hon. Friend’s Committee might be the appropriate one to establish whether there are any conflicts of interest and then put them to bed. I certainly share his aspiration, indeed determination, to ensure that more pre-legislative scrutiny takes place.

Amendment 31 seeks to probe the Government over the appointment of the registrar. It is crucial for whoever performs that role to enjoy the confidence of as wide a cross-section of political life as is possible, and it would not be good enough for the Government simply to pick one of their friends or cronies. We believe that allowing my hon. Friend’s Committee to be involved in the appointment would ensure that the most appropriate and most independent person was appointed, thus providing an important safeguard. I hope that the Minister will feel able to give a commitment in that regard.

Amendment 34, and the consequential amendments 36 and 37, underline our view that information about spending on lobbying should be available for scrutiny. It would be useful to hear from Ministers why they do not think that we should know how much is being spent on lobbying for a particular cause at any one time. In the United States, an approximate good-faith estimate of the amounts that are spent must be published every quarter. It is surely right, in the interests of transparency, for the public to be able to make a judgment about how much is being spent on trying to secure particular outcomes at particular times.

We know from today’s media reports—thanks to a leak of confidential documents from Philip Morris International—that huge sums are, on occasion, spent on lobbying in pursuit of particular ends. Philip Morris appears to have spent well over £1 million and employed some 160 people in an attempt to keep a proposed tobacco products directive from coming to fruition. Apparently, more than 230 Members of the European Parliament were met at least once. Freedom of information documents have revealed that Philip Morris was not alone among the tobacco giants in wanting to stop the proposed directive, but in just that one instance the picture is of a mammoth and very expensive lobbying operation.

I think that Philip Morris is perfectly entitled to lobby, but I also think that we are entitled to know for what it is lobbying and why, and how much it is spending in pursuit of its own interests. Our amendments seek to tease out the scale of the finance that is devoted to lobbying on particular issues at any one time. That would help to increase the transparency of the discussions that legislators have about particular proposals, and would improve our governance as a result.

Amendment 40 seeks to delete the self-incrimination defence that the Bill currently allows lobbyists to use in order to avoid answering questions asked by the registrar. It would be helpful to hear the Minister’s thinking. We believe that the inclusion of the self-incrimination defence restricts the registrar’s ability to get to the truth. Like so much of the Bill in its current form, clause 10 casts a shadow over the Government’s aspiration for more transparency in the lobbying industry, and I look forward to hearing the Minister’s explanation of why the defence is necessary.

Amendment 43 cuts to the heart of the concern of many outside this House as to whether the registrar can be self-financing. There is a widespread belief that far fewer lobbyists will have to register than the Government estimate. Their estimate differs greatly from those of outside experts. Witnesses appearing before the Select Committee suggested only 300 would need to be registered, and, as my hon. Friend the Member for Newcastle upon Tyne Central (Chi Onwurah) pointed out, the estimates sometimes sink to as low as 100. The Government’s impact assessment, however, suggests between 550 and 1,000 consultant lobbyists would need to register.

If the Government are wrong and all the expert witnesses are right about that, the registrar could be faced with a substantial cost gap, and that would have to be picked up by the public purse. The Government seem to be very relaxed about wasting money, as they have happily written off the disastrous IT projects for universal credit and borrowed billions of pounds to fund the welfare costs of those who cannot find jobs, but it would be useful to hear from the Minister how the apparent fairy tale of a budget for the registrar that the impact assessment suggests has been cobbled together. What is the thinking behind the budget? How have these estimates been arrived at?

Our amendment underlines the point that the public should not have to pay for the regulation of lobbying. If the Government are sensible and accept the definition of lobbying that the majority of those outside the House—and, I suspect, inside this House who have actually studied the Bill—believe is appropriate, there is no reason why the public purse will need to fund any of the costs of the registrar.

We believe that these amendments will improve the Bill, and I commend them to the Committee.

[Lady Hermon]

It is a lovely surprise to be called to speak so early in this debate. First, I must say that I am absolutely delighted that the Leader of the House is present, particularly as amendments 136 and 138 in my name and those of other hon. Members were prompted by his comments on Second Reading, when he said, with great enthusiasm:

“To ensure the independence of the system, the register will be administered and enforced by an independent registrar of consultant lobbyists”—[Official Report, 3 September 2013; Vol. 567, c. 176.]

His use of the phrases “independent registrar” and “independence of the system” fascinated me because I read the Bill very carefully from beginning to end and those phrases never appear in it. Instead, the Bill states that the registrar is to be appointed by the Minister—a term which, of course, includes the Secretary of State—but, it is stated in paragraph 3(6) of schedule 2, the poor old registrar can also be dismissed by the Minister

“if the Minister is satisfied that the Registrar is unable, unwilling or unfit to perform the functions of the office.”

So the Minister does not even have to have reasonable cause to dismiss the registrar. He does not have to have reasonable suspicion or reasonable belief. Under the Bill as currently drafted, the Minister appoints the registrar and can dismiss the registrar if he is “satisfied” of those things. That is far too weak.

We must remember that the powers of the registrar as set up under this Bill are quite extensive. More to the point, my constituents have lobbied me—written to me; “lobbied” is almost a bad word—on many topics, and it was not fair for the Leader of the House or for the Deputy Leader of the House to suggest on Second Reading that we were all alarmed because of trade union scaremongering. That is not the case. I have not received a single letter or e-mail from a trade union, but I have received them from charities, which want reassurance that the registrar will be independent of Government. The registrar will have the power to keep and publish the register. They must keep the register up to date, they have the power to monitor compliance with obligations, and they can issue information notices if they believe that consultant lobbyists have not registered.

There are significant penalties, including criminal conviction and civil penalties for non-compliance with the terms and conditions of part 1. It is essential for public confidence in the new register that, as the Leader of the House promised on Second Reading, the new system is independent of Government and the registrar enjoys independence. The amendments that I have tabled would require the Minister to allow the registrar to act independently. There must be an assurance in the Bill that the functions of the registrar will be exercised independently of any other person.

The Leader of the House suggested on Second Reading that the register would be funded by the lobbying industry via a subscription charge. Again, I urge the coalition Government to heed the lack of confidence engendered in the general public because of lobbying scandals. It is incumbent on all of us to do all that we can to restore that confidence. For the Leader of the House to suggest that the lobbying industry would pay for the register through a subscription is not helpful. My amendments would ensure that the independence of the registrar and of the register is guaranteed, and I hope that the Government will look at them sympathetically.

[Mr Allen]

I strongly support the points that have just been made, and I am happy to add my name to the amendments.

We should return to the point that I made briefly about pre-legislative scrutiny. It would have saved a great deal of grief if we had undertaken such scrutiny, and it is incumbent on all of us to consider how we do so in future, so that we avoid the mistakes and so that the Government—I do not mean just this Government but the one before and the one to come—listen to Parliament. As a result of that sentiment and the fact that Parliament has a contribution to make, the report that members of the Political and Constitutional Reform Committee hurriedly put together after having returned early from the recess to take evidence made it clear that the Standing Orders of the House should be amended to say:

“No public Bill shall be presented unless a) a draft of the Bill has received pre-legislative scrutiny by a Committee of the House or a joint Committee of both Houses, or b) it has been certified by the Speaker as a Bill that requires immediate scrutiny and pre-legislative scrutiny would be inexpedient.”

Let us try to avoid, for the sake of all future Governments, getting into this sort of shambolic mess—a mess whereby people push through a Bill, do not discuss it with Parliament or with any of the relevant organisations before releasing it into the public and parliamentary domain a day before the recess, where it is then debated on the Floor of the House a day after our return from recess.

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[Mr Allen]

Sir Roger, my hon. Friend on the Front Bench deserves a severe reprimand for trying to mislead me again into talking about matters not covered by the present group of amendments. It is a matter of great regret that that issue is another one that, as he points out, will not be discussed. This is not to make a point for or against either Front-Bench team, but Members have a right to voice an opinion on key aspects of legislation. That will not now take place. I do not point a finger at anybody. I merely say that that is not an acceptable way to run a sweet shop, let alone a Parliament.

To describe the heart of what we are considering in the present group, I shall quote extensively from the Political and Constitutional Reform Committee report, which states:

“There was a significant degree of agreement that the additional information should include disclosure of the subject matter of the lobbying, and some agreement around the idea of including the purpose of the lobbying and a list of who had been lobbied.”

I talked earlier about an evidence base. However hurriedly it took place in the time frame we had to put our evidence base together, a wide variety of organisations, which are listed in the report, submitted evidence, quotations from which are included. Spinwatch said that the information required under the Bill was “wholly insufficient”, adding

“For a register to meaningfully allow public scrutiny of lobbying, it must include information from lobbyists on their interactions with government. In other words: whom they are meeting and what issues they are discussing. Members of the public wanting to see which outside organisations are exerting influence on a particular policy area, for example, will be unable to do so under this proposal.”

We also had a joint submission from three eminent academics, Dr Hogan, Professor Murphy and Dr Chari, who argued for the inclusion in the register of

“the subject matter and purpose of the lobbying”.

The Royal College of Midwives said:

“It is hard to see how the information requested will add greatly to the transparency of the lobbying process…Would it be too burdensome, at the very least, to ask for the register also to spell out the issues on which clients are seeking to lobby (e.g. improved conditions for farm animals), and the nature of the lobbying that has taken place (e.g. an all-party group on road hauliers established)?”

The oft-quoted tonight Iain Anderson, the deputy chair of APPC, supported publishing information about the purpose and subject matter of lobbying, but suggested that this could be done most effectively and efficiently when details of ministerial and official meetings were published rather than in the register. That is a perfectly acceptable matter for the Committee to explore, but time will not allow us to do so, although we could make a serious contribution to the development of the Bill.

The Committee on Standards in Public Life also argued that information on the subject matter could be included, either on the register or in the details that were published of meetings. The difficulty with including the information in the data about ministerial and official meetings is that if the definition of lobbying is expanded to encompass contact with the rest of the civil service, special advisers and others who do not necessarily publish details of their meetings, such information would necessarily be quite patchy.

[Lady Hermon]

Will the hon. Gentleman give way?

[Mr Allen]

I will gladly give way.

[Lady Hermon]

That was said with great enthusiasm. I thank the hon. Gentleman for gladly giving way. That is very kind indeed.

Can the hon. Gentleman throw light on one particular aspect that I am genuinely extremely concerned about? We are talking here about oral and written communications with Ministers and permanent secretaries, described by the Minister as the key decision makers. Did the hon. Gentleman’s Committee and the witnesses comment on or even criticise the fact that “permanent secretary” is defined to include the Director of Public of Prosecutions? What we are aiming to look at here is what goes on behind the scenes of Government. The DPP should not be included. He is independent of Government and his independence should be guaranteed.

[Mr Allen]

Witnesses did indeed express great concern about the narrowness of the provision whereby those who can be regarded as falling into the category of being lobbied include Ministers and permanent secretaries only. There was nothing precisely about the DPP that I can immediately bring to mind, but I will go back over the evidence and make sure that I drop a line to the hon. Lady should there be anything along those lines.

[Lady Hermon]

I am not testing the hon. Gentleman’s memory at all. I am sure that his recall is clear and that he does not need to go back over the evidence. But does he himself think that it is proper that the DPP should be included within the definition of a permanent secretary?

[Mr Allen]

I do not feel competent to give an accurate and helpful answer to the hon. Lady’s point. She and those with a different view should participate in pre-legislative scrutiny and put their arguments and reasons to the Government, who then make a choice—they will execute, they will decide. At the moment, there is execution and decision without participation and consultation; it is blindfolded government not using Parliament as the effective partner it should be.

Alexandra Runswick, the director of Unlock Democracy, made points about the depth of the information required. Again, we go for black or white—either people want everything or do not want anything, but the truth is that we should have reasonable amounts of information that everyone feels is appropriate. Having discussed the issue with all parts of the lobbying industry and those interested in it, we got to a position of consensus. For example, Unlock Democracy said:

“We are not expecting a transcript of the meeting, but what policy area it is that is being lobbied on. There are already individual MPs who publish their diaries and say, for example, ‘I met Unlock Democracy about the Lobbying Bill.’ That is the level of information that we are looking at—the policy that is being lobbied about, not the exact information that was shared with the person whom you are lobbying.”

That led my Select Committee to table amendment 56, which we felt was appropriate, proportionate and helpful to the Government. Yet we are discussing it at the fag end of the sitting and many other issues will not even get an airing.

We suggested that the information that the register requires to be listed should be expanded to include the subject matter and purpose of lobbying when that is not already clear from a company’s name. To be clear, that should not involve the disclosure of detailed information about the content of the meeting, just a broad outline of the subject matter and intended outcome. For example, “Subject matter—lobbying; purpose—change the Transparency of Lobbying Bill.”

We also suggested in our report that there should be a financial threshold above which companies are required to provide information about the subject matter and purpose of lobbying. That is why we framed, as a Select Committee, an amendment that we felt was reasonable and helpful to the House and the Government.

I will conclude my remarks, as others wish to contribute. At the end of the day, we are trying to improve the Bill. It is a sad fact that if the House of Commons is not treated properly and if the process is cavalier and one in which Parliament’s view is neglected or not even regarded with respect, we sell the pass. When the public want an effectively lobbying Bill, we say, “We’re not even capable of discussing most of the groups of amendments on the agenda tonight.” As a House of Commons, we pass our responsibility over to the other place. That is not satisfactory to anyone in the House of any political description who feels that their role is to hold the Government to account and scrutinise legislation. If we do not do the job, the second Chamber will fill the vacuum. Any self-respecting Member of Parliament will feel that that is not a place where we should be.

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[Miss Smith]

I have just gone to the lengths of providing the hon. Gentleman with an argument, with international examples, as to why making something statutory from a voluntary position can often be unfeasible. That argument stands. In fact, my reference to the industry relates particularly to the APPC.

The Opposition’s amendment 43 would amend the reference to the setting of the subscription charge from requiring the Minister to “seek to” recover the full costs to requiring them to recover the full cost. That seems unnecessary. I can assure the whole Committee that we are well aware of the importance of ensuring that the register is fully funded by the industry in order to protect the taxpayer. As I said earlier, the Canadian register costs £3 million to run. The Opposition have not fully considered how they would ensure that such costs would be recovered from, no doubt, the charities, playgroup volunteers and vicars whom they intend to register.

Amendments 136 and 138, tabled by the hon. Member for Nottingham North (Mr Allen), demonstrate his desire to secure the independence of the registrar. I share that desire and hope that I have reassured him. I was glad to hear the hon. Member for North Down (Lady Hermon) refer to this point as well. It is important that the registrar will be independent of both the lobbying industry and the Government and will have a clear remit to operate independently. Ministers will be able to dismiss the registrar only if they are satisfied that he or she is unable, unwilling or unfit to perform the functions of the office. I urge hon. Members not to press amendments 136 and 138.

[Lady Hermon]

I have listened carefully and intently to the Minister. Where in the Bill is the independence of the registrar guaranteed? What justification can the Minister have for not putting it in black and white on the face of the Bill? I ask her, please, not to give reassurances that will be reported in Hansard. It should be put in the Bill so that people outside have a guarantee of independence.

[Miss Smith]

I appreciate the hon. Lady’s arguments in support of amendment 136. I regard the Bill and the explanations we have given as sufficient, but I am willing to continue to review the issue.

Amendments 34, 36, 37 and 152 would require lobbyists to disclose financial information. Amendment 56 would also alter the information requirements in clause 4 to require the disclosure of the purpose and subject of any lobbing. We have been very clear that the objective of the register is the identification of the interests that are being represented by consultant lobbying firms. Lobbyists should therefore be required to disclose their clients. We are not persuaded that the burden that would be imposed, on both the industry and the regulator, of requiring further information is justified by the fairly limited insight it will provide. It is not a proportionate approach to the problem identified. I urge hon. Members not to press the amendments.

The Opposition’s amendment 40 would alter clause 10 on self-incrimination and limit the information that persons are required to provide in response to an information notice. This unclear and oddly drafted amendment tops off the evening. Its unwelcome effect would be that, in response to an information notice, a person would not be required to provide any self-incriminating information including any offence committed in relation to the register. It would therefore entirely undermine the enforcement regime relating to the register. The registrar could still seek to investigate registration breaches using information notices, but the result would be that, where there had been such a breach, the lobbyist would be entitled to refuse to provide any information and only lobbyists that had not breached it would be required to provide information. I urge the hon. Member for Hemsworth (Jon Trickett) not to press that crowning glory of an amendment.

The purpose of new clauses 2 and 7 is unclear. They appear to require that, if a registered professional lobbyist is appointed to a role in Government or to work for a Government party, their appointment should be scrutinised by a Committee and restrictions placed on their activities. I ask the Opposition: who should such a Committee consist of and what would be their remit? What restrictions would be placed on the activity of such an appointee? The proposed new clauses clearly do not provide the answers. The Opposition are weak and muddled, and I urge them not to press the new clauses.