Lobbying (Transparency) Bill [HL]

Lord Lansley Excerpts

Friday 9th September 2016 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am grateful for the opportunity to contribute to the debate on this Bill and thank the noble Lord, Lord Brooke of Alverthorpe, for bringing forward these issues. I declare a couple of interests. First, in common with many Members of this House, I do not engage in consultant lobbying, but if the Bill were to pass, advisory activities in which I do engage would become lobbying activities under the terms of the Bill. To that extent, interests are engaged.

Secondly, I declare an interest in that, as the then Leader of the House of Commons, I was responsible for the passage of the legislation to which the noble Lord referred—the transparency of lobbying legislation of 2014. I did so as a coalition Minister. I was the most senior Cabinet Minister in the Cabinet Office other than the Deputy Prime Minister, so that task fell to me when it might otherwise have fallen to the Deputy Prime Minister to take that legislation through. That was his gain and probably my loss.

The noble Lord illustrated in his introduction and explanation of the Bill many of the issues that we had to think about quite hard in the process of bringing forward Part 1 of the 2014 Act. There was a balance to be struck. I freely confess that the balance was struck on a minimalist basis of the balance between transparency on the one hand and burdens to be imposed on the other. In considering the legislation before us, your Lordships must also consider that balance very carefully. I am afraid that in my mind the noble Lord’s Bill still demonstrates the difference between a government Bill on the one hand and a Private Member’s Bill on the other, where the government Bill basically says, “We believe in the principle and we will take practical steps but we do not want to create a large bureaucracy”. I think that the noble Lord, Lord Wallace of Saltaire, in referring to the legislation in a debate last year, referred to the vast bureaucracy that would otherwise result from the extension of the regime in the way this Bill proposes. The noble Lord has put it all in the Bill—everything that anybody suggested to us—it is all there. The vast bureaucracy that would result is not only all there but would have to be paid for by the taxpayer, whereas, at the moment, the register of consultant lobbyists is paid for by those who place entries through a charging regime.

There was one omission in the noble Lord’s explanation of the context of the Bill to which I wish to draw attention. The 2014 Act was not the first element of a transparency regime implemented under the last coalition Government. The first, and in my view still the more important measure, was the disclosure of who Ministers and Permanent Secretaries meet. It is always a moot point, and should be part of the debate on this Bill with the Government, how effective that process is and how far it should reach beyond its present confines. In that context, the definition of “consultant lobbying” in the 2014 Act was constructed around the transparency regime whereby Ministers and Permanent Secretaries publish their external meetings. The 2014 Act allows for that to be extended to special advisers. That has not happened. It would be interesting if my noble friend the Minister were able to tell us anything about whether the Government have considered that matter and, indeed, the extension of the transparency regime to special advisers. The noble Lord and many of your Lordships will be aware that, while that is treated with alarm in Whitehall by special advisers themselves, it is none the less, we all know, actually of considerable importance in terms of the relatively small number, I submit, of those in Government whom we want to ensure are captured by the transparency regime.

I do not want to detain the House long because I have explained in the past, and it is all on the record, why I felt the burden of a Bill of this kind went too far. I simply illustrate this by saying that we are dealing with an intention to take the definition of “consultant lobbying” and add to it in-house lobbyists. During the passage of the previous Act, I never understood why people imagined that there was some lack of transparency about the fact, for example, that Heathrow is lobbying to have a new runway. The fact that they have in-house lobbyists engaged in that is neither here nor there. If they hire other people to act as lobbyists on their behalf, that much should be in the register, and would not be lawful were it not in the register. So to that extent, I am not sure what people do not know about. That people lobby on their own behalf seems to me perfectly transparent. It is a natural course of events. What is more important is to know under what circumstances decision-makers are reached by that lobbying. That gets me back to the point about the transparency regime on the part of Ministers, very senior officials and special advisers rather than the question of having to declare in a register that one is engaged as an organisation in lobbying on one’s own behalf.

Thirdly, I seriously object to the proposition that the definition of “lobbying activity” should extend beyond lobbying in its practical sense and include other forms of communication, advice to those who are engaged in lobbying and works to support those activities. This is reaching way out to the point where one is encompassing almost people who are not engaged in any kind of lobbying at all, not trying to deliver a particular decision from a Minister, official or parliamentarian, but are simply giving advice to people about what that process consists of. It would include, frankly, every academic who tells people what the process of Parliament is like and advises on parliamentary processes. It is all included in this catch-all,

“advises others in a professional capacity”,

in relation to meetings with public officials, because public officials includes all of us and all Members of Parliament.

The definitions are extended not only to in-house lobbyists but to advisers; they include not just the decisions of government in a narrow form but regulations, policies and positions of Her Majesty’s Government, which therefore covers pretty much everything that government is engaged in. “Public officials” is very widely drawn, including not only Permanent Secretaries and their equivalents but all civil servants, pretty much everybody who works in executive agencies—for example, everybody who works in agencies such as Ofcom or Ofgem, and so on—and everybody who works in Public Health England, which is an executive agency, and so it goes on. Millions of people would be defined as public officials. The organisations that are included in in-house lobbying and otherwise include large numbers of not only businesses but trade associations, trade unions and the like. Therefore, I am afraid that we would end up with legislation which seems to say: “On this register we should have almost everyone, whenever they talk to almost anyone else in the public sector at all, about any issue and in any fashion”.

This is not a small register. The noble Lord in his legislation proposes to go from a minimalist to a maximalist position. I contend to the House that in the course of debate on this legislation, whether it succeeds on this occasion, we can do a service by debating how far we move from the minimalist position, but we should certainly reject a maximalist position. It seems that the legislation goes far too far. It would behove Members of your Lordships’ House to think about what it would mean for us. We would be regarded as public officials, so this would include anybody talking to us in any circumstances; Members of Parliament are okay, because their constituents can talk to them. Just imagine: every all-party group would become a complete nightmare of lobbying disclosure where everybody is talking to everybody else. Any Peer who seeks to talk to any public official—which includes all of us—and any time any of us talk to anybody else about anything, it would have to be on the register.

I am afraid that definitions in legislation have to be a sight better than this for it to be a rational way to undertake legislation. As regards the register, where we end up it has to be much clearer about issues of who is being reached; we might logically go beyond where we are now, but it should still include genuine decision-makers, not everybody in the public service. We should look carefully at whether the transparency regime rather than the register should be expanded as the operative mechanism for delivering the improvement in the transparency regime that we want. We should be much clearer about what kind of communications are to be included; in-house lobbying should not form part of this. I am very uncertain about the process of having a code of conduct in the public sector rather than it being done on a voluntary basis.

I am concerned about the structure of the register as it is in the legislation, and we need to come back and look at those issues. Failure to comply is a criminal offence, as it is in the current legislation, but there is not scope for a civil action to be taken by the registrar; that forms part of the current legislation and should form part of any change to the powers. There should be a due diligence defence, which the noble Lord seems to have omitted from his legislation which would replace the existing Part 1, and there should be both a power to charge those who are on the register so as not to make this a large potential call on the taxpayer, but also to enable the registrar to do her job properly. The power to issue guidance should clearly be continued and seems to have been discontinued for reasons I do not understand.

Therefore some of all that is an interesting debate, and the legislation allows that debate to happen. I cannot give the Bill my support, but if we have the opportunity to take it further in Committee, it might enable us to explore in some detail what further reform of the transparency regime might look like in future.