Lobbying (Transparency) Bill [HL]

Debate between Lord Lansley and Lord Brooke of Alverthorpe

Committee: 1st sitting (Hansard): House of Lords
Friday 18th November 2016 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am grateful for the opportunity to speak to the amendments that I have tabled. They appear forbidding in number, but I encourage noble Lords to recognise that a large number of them are intended to put back into the legislation, were the Bill to be passed, the structures, duties and powers of the registrar in order to make the job of the registrar effective. I am not intending today to revisit the argument about the scope of the definition of what should be the subject of the register for lobbying, nor about who the lobbyists in question have to contact in order to be within the scope of the registrar.

I do not agree with the Bill—I make that perfectly clear—but the purpose of our Committee stage should at least be that, were the Bill to make further progress, it should be in a form capable of being enacted. I hope that noble Lords will understand the motivation behind most of my amendments. Some are trying to circumscribe it a little and ameliorate some of its rather expansive terminology, but most are in order to make it effective, if it could be so.

I should draw attention to my register of interests. I do not actually undertake any consultant lobbying but I suspect that what I do would be captured under the proposed register. I think that that is probably true for most Members of this House, frankly. It may not be—we need not argue about that—but it is probably best that we all make a declaration in any case that we might find ourselves in such a position.

I can be very clear about the first amendment. It is simply to make it so that the Minister in question can be a Minister from the Cabinet Office. As your Lordships will recall, I was a Minister in the Cabinet Office and I was the Cabinet Minister responsible for the Bill; I was the Lord Privy Seal. But actually the Minister in question who will be making appointments and undertaking other duties in relation to this Bill is very likely to be a Minister in the Cabinet Office and not a Secretary of State. It would therefore be more effective for the description to be that of a Minister. I beg to move.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I start by declaring no interest—although if this was carried some years ago I would have been caught by it. I am grateful for the comments of the noble Lord. As he is aware, we are very short on time today and I intend to be as speedy as possible in addressing what he has put before us. I also intend to be as co-operative and helpful as I can be, and I even hope to persuade him not just to move amendments to make the Bill better, as he sees it, but possibly to see some merit in giving it further support. I invite him to think about that. I accept the amendment.

[Baroness Chisholm of Owlpen (Con)]

My Lords, as has been noted, this amendment would reflect the normal practice that Ministers rather than Secretaries of State are referred to in legislation. While this change might be welcome for the sake of consistency, it does not change our overall position. We believe that the existing legislation as it stands is effective and we do not think that it needs to be supplemented.

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[Lord Lansley]

My Lords, the purpose of the second group of amendments is to remove from the Bill the intention that the Secretary of State should prepare and issue a code of conduct. Clause 1(3)(b) states that the Secretary of State should,

“prepare and issue a code of conduct”.

That is the subject of Amendment 2, and of course Clause 7 follows that in determining all the circumstances relating to a code of conduct. I will not go on at length. I think I was very clear at Second Reading that in my view there is a structure of voluntary codes that are more flexible, able to operate qualitatively and are therefore more appropriate to the task. This would be an unacceptable and unwise substitution of an inflexible and potentially much more limited statutory code for what in practice are developing as flexible voluntary codes. I beg to move.

[Lord Brooke of Alverthorpe]

My Lords, as the noble Lord described, a variety of codes are on offer at present from different organisations. It seems to us that this causes confusion and leads to a lack of clarity, so there is a strong case for the type of standard code that operates in other places. But in the light of the issues that we have on timetabling and to move the business forward, we have reflected seriously on this and have looked at the group of amendments closely. On balance, we have decided to make a major concession and agree that a code of practice should not be included in the Bill this time round. I am therefore prepared to accept the amendment.

[Baroness Chisholm of Owlpen]

My Lords, the Government believe that the self-regulatory codes administered by the lobbying industry work well, and the 2014 Act on transparency of lobbying aims to complement rather than replace the existing non-statutory codes. It is not necessary to regulate through a statutory code of conduct as the existing systems are working well. In that regard, the amendments in this group that remove the requirement for a statutory code of conduct would be welcome. However, they do not change our overall position: we cannot support the Bill as we believe that existing legislation achieves what it set out to do and that further regulation is not necessary.

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[Lord Lansley]

My Lords, the purpose of Amendment 3 is to introduce a schedule that sets out the provisions of the establishment of the registrar, which directly parallel what is in the existing legislation, for which I was previously responsible. The schedule establishes the registrar as a corporation sole, and enables the registrar to sue, be sued and enter into contracts. It means that the registrar is not exposed as an individual but has a corporate entity. That can therefore create continuity. It enables the accounts and money to be provided by the Government by way of loans or grants, and it makes the accounts and activities of the registrar subject to examination by the Comptroller and Auditor-General and, if necessary, by the ombudsman.

I hope your Lordships agree that, if the Bill is enacted, this will enable a smooth transposition from the existing registrar structure to the registrar’s new responsibilities. I beg to move.

[Lord Brooke of Alverthorpe]

I am grateful to the noble Lord for his comments. Again, they are acceptable. I will also move Amendment 31 in this group, which makes a minor amendment to take into account that this would extend the scope from the present arrangements to cover in-house lobbyists too, if it becomes law. It is an appropriate technical amendment to make.

[Baroness Chisholm of Owlpen]

My Lords, the amendment would reproduce wording that is identical to Schedule 1 of the Transparency of Lobbying Act 2014. The schedule sets out the role and functions of the registrar. We believe that the 2014 Act effectively fulfils the purpose for which it was passed and that it does not need to be changed or amended.

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[Lord Lansley]

My Lords, in this group we are not in the territory of simply trying to put in place the necessary structures, powers and duties of the registrar, but are concerned with the definition of lobbying and who lobbyists are. I feel it is too wide-ranging. I do not want to have a debate at this stage on narrowing it right down, but there are some egregious examples, which are reflected in the amendment. So in Amendment 4 it should not apply to all shareholders but only to those who have a controlling interest. In Amendment 5, lobbying has to relate to government policy, statements and decisions: for it to include everything that relates to every government position seems excessive.

Amendment 6 would put us back in the position we are currently in and make the situation clearer, avoiding the worrying risk that we would have to decide when Members, particularly of this House, are acting in an official capacity. Is that everything that they do, on every subject, for every potential organisation which might ask us for our interventions or support? No—I think it is better to be very clear that payment, for this purpose, does not include payments to MPs and Peers. That is how it is reflected in the current legislation.

Amendment 7 reflects the current legislation and excludes statutory communications; so one cannot be required to register by virtue of the fact that one undertakes communications which one is required to do by law. Regarding Amendment 8, I was not happy that the exemption was well enough drawn to make it clear that the communications in question must be directed at public officials. If they are not directed at public officials they should not, therefore, be captured in the scope of the register.

Regarding Amendment 9, I could not understand why trade unions engaging in negotiations should be left out. When transparency is being pursued, why should it not apply to trade unions in the same way as anyone else? I was rather aghast at the presumption that media workers should be excluded from the transparency requirements altogether. The point is that when anybody is engaging in communication via the public media, that should be exempt, but media workers should not be exempt by definition, otherwise there is a risk that simply by virtue of the fact that one is employed by a media organisation, one would regard oneself as outwith the scope of the register. That should not be the case because one could, none the less, in practice be engaged in lobbying.

I realise that there are intrinsic merits in some of the amendments in this group, and people will argue about others. I hope your Lordships will find favour with one or two, particularly Amendments 6 and 7, on payments to MPs and Peers and the exclusion of statutory communications. I beg to move.

[Lord Brooke of Alverthorpe]

My Lords, again I express my gratitude for the explanations the noble Lord has given for these amendments. I hope he will not be surprised to hear that I am going to accept most of them. In Amendment 4, “controlling” is perfectly acceptable. I shall leave Amendment 5 to one side for a moment. Amendment 6 is, I believe, from and identical to the previous legislation, which is already in force, and I am happy to accept it. I am prepared to accept Amendment 7. The wording of Amendment 8 is better than the original, so that is accepted too. The noble Lord might not be surprised, given my background, that the bit about trade unions appears in there. I do not have quite the same close links with the media, but I do my best there, where I can, and we are prepared to accept the amendment.

The one area I am not happy about is Amendment 5, which would delete “or position”. Again, I go back to my past experience. I was in the trade union movement for most of my life but also spent some time in business —I swapped sides, almost, so to speak. I was involved with people who were coming up with ideas about how they could make public service operations more effective. They would devise ideas and I would be part of that. We put the ideas in a bag and went to, for example, Australia and sought to persuade the Government that they could do a particular piece of public policy work better if only they would adopt what we had in mind. The Australian Government had no policy on that issue but we were able to persuade them that they should do it that way. Of course, we then bid for the business. We then took our portmanteau and went to Hong Kong and all round the world, persuading different Governments, in the UK as well. Often the Government were not running public services as efficiently as they could have been, and we came along with ideas on how they might change things.

However, such activities should be in the open. The public should be aware that efforts are being made to change not just the policy but the Government’s mind. We have a good example of that at the moment with Brexit. Technically, we have no real policy on Brexit, so far as I can understand—or that we have been able to elicit from the Government—but we know that positions have been reached and that people are lobbying. Technically, if you believe in transparency, that should be in the public domain. This is what the amendment would remove and it would limit the area in which it would take place. I hope I might persuade him that he should withdraw the amendment and reflect on it.

[Baroness Chisholm of Owlpen]

My Lords, in some cases, such as Amendment 5, what is proposed seems to be a logical amendment to the original Bill. However, in others, such as Amendments 6 and 7, the wording is identical to that used in the 2014 Act. As those proposals already exist in statute, they would unnecessarily duplicate existing legislation. Overall, the Government believe that the definitions in existing legislation are effective and fulfil the regulatory aims the Government believe are necessary. As such, the definitions of “lobbying” and “lobbyists” do not need to be changed, as proposed in the original Bill or this group of amendments.

[Lord Lansley]

I am grateful for those responses. As my noble friend on the Front Bench will understand, my purpose here is to try to see how these elements of the existing legislation should be incorporated into a Bill that would otherwise repeal the whole Part 1 of the original Act. They would be lost and I think they would need to be reincorporated before the Bill could properly make progress.

I am very grateful for the support of the noble Lord, Lord Brooke, on Amendment 4. On Amendment 5, I do not necessarily agree with the points he made but I do not think we should detain the Committee now. We can come back to it if we have the opportunity on Report. I am certainly willing to reconsider. For the moment, I do not plan to move Amendment 5.

I am grateful for what I think was the noble Lord’s acceptance of the other amendments, with the exception of Amendment 9, on the trade unions. I am not sure whether he was willing to let go—

[Lord Brooke of Alverthorpe]

Yes.

[Lord Lansley]

Very good. On that basis, I will not move Amendment 5 but will move the other amendments in due course.

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[Lord Lansley]

We have happily arrived at the point where we would be by virtue of this group, which appears forbidding in its extent but is actually very straightforward. These amendments give the registrar the duties and powers that she has currently. They cover a range of things, including the issuing of information notices and the duty to monitor compliance with the register. The ability to issue information notices is in Amendment 16. Giving safeguards to those people to whom notices are issued is in Amendment 17 and a right of appeal for those people is in Amendment 18. The power to issue guidance on compliance with the register is in Amendment 27 and the ability to charge is covered by Amendment 28. A regulation-making power for the Minister in relation to the powers in the Bill is in Amendment 29. In so far as these amendments are re-incorporating powers that the registrar would need, I hope that they will find support from your Lordships.

[Lord Brooke of Alverthorpe]

I will be moving Amendment 16A as well.

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[Lord Lansley]

Perhaps I may defend my noble friend on the Front Bench in this respect. She was aware that I was going through the Bill with the benefit of having been responsible for the original legislation. I think she did not feel that the work was not being done—it was just not being done by the Government, which would give the misleading impression that the Government were seeking to make this legislation in a form that they felt was worthy of enactment. It is okay for me to do that from the Back Benches, but I do not think it is quite the same thing for the Government to try to do it—so I do see a difference.

On this group, I am very grateful for the support for a number of the amendments. On Amendment 28, relating to charging, I am going to disappoint the noble Lord, Lord Brooke of Alverthorpe, by persisting—but I shall say two things that might comfort him. First, the structure of the amendment, which obviously reflects what is in the current Act, enables the registrar to impose charges but does not require them to impose charges in any particular form. The form in which those charges are to be imposed would be the subject of regulations under the Act, which would have to come here and be approved by this House. It is perfectly open to the Minister, in making those regulations, to clarify where there may be exemptions. It would not require everybody to pay the same charges for the same register entry or for the same service, so there may be the ability to modulate the charging. If the Government were considering regulations, they could look at this and at whether it would be appropriate to modulate charges for the organisations that would otherwise find there was some chilling effect resulting from that.

So I will persist with this, and I hope the noble Lord might let us reflect the fact that it is necessary for regulators—in this case the registrar—to meet the cost of their activity through charging. On this group, I will move Amendment 15, and I hope to persist with the others, while accepting Amendment 16A, which is a helpful addition.

[Lord Brooke of Alverthorpe]

My Lords, as your Lordships probably recognise, I am in a little difficulty here, particularly with my noble friend, with whom I have worked very closely on this. I hear the explanation which has been given and see a chink of light on the degree of elbow room which already exists. I am particularly anxious that we try to proceed with the Bill and hope that the Minister may be persuaded that there are elements in here which the Government should be concerned about. I am particularly pleased that the noble Lord, Lord Lansley, has, I think, accepted an extension of the requirement to register and to open it to in-house lobbyists as well as the professional lobbyists.

I am keen that the Bill moves forward. I can understand the Minister’s difficulty, but she could redeem herself if she could see a way to arrange a meeting with the responsible Minister for us to talk about the fundamentals in the Bill. Perhaps the noble Lord, Lord Lansley, might wish to join that meeting, along with at least two noble Lords who I know are very keen indeed to see this Bill, which is well supported across the House, move forward. If the Minister is not giving much today, perhaps she might be willing to try to facilitate that for us in the future. On that basis, I am prepared to accept the amendments.

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[Lord Lansley]

Your Lordships will be pleased to know we have arrived at the final group, in which the amendments all relate to the question of offences. The structure of the Bill as it stands is such that if there was a breach of the requirements of the register, the registrar would be able to proceed only by way of seeking to impose a criminal penalty in respect of the breach, whereas the current legislation enables the registrar to act in other—and in my view more proportionate—ways by seeking a civil penalty.

The purpose of most of these amendments is therefore to introduce the option of a civil penalty and the various requirements that go with that: a civil penalty regime in Amendment 20; a requirement to notify someone who is believed to be in breach and the civil penalty that would be imposed under Amendment 21; the character of the notice under Amendment 22; the right of appeal against that under Amendment 23; the relationship of the civil penalty to any criminal offence so as not to create double jeopardy under Amendment 24; the enforcement if a civil penalty is imposed as a civil debt under Amendment 25; and further details relating to the civil penalty under Amendment 26.

Amendment 19, the lead amendment that I am moving now, is about due diligence. It illustrates the difference between a criminal offence and the civil penalty since, if someone was guilty of an administrative oversight in relation to the requirement to register, essentially the registrar observing this breach would be inclined to go down the route of a civil penalty if it was sufficiently serious. One would be very unlikely to want to create a criminal offence for those kinds of administrative oversights. If someone has failed to comply with the register but has applied due diligence, it is important that they have a defence of due diligence against a criminal offence; however, where a civil penalty is concerned with something like an administrative oversight, there should not really be that kind of defence. So this replicates the existing structure of penalties, I think it is more proportionate and I hope it will commend itself to the Committee. I beg to move.

[Lord Brooke of Alverthorpe]

I am happy to accept.