Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill Debate
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Lord Wallace of Tankerness
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Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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Baroness Hayter of Kentish Town (Lab)
My Lords, I also support Amendments 1 and 11. I hope that I will not also have to support the amendment tabled by the noble Lord, Lord Norton, as we hope that we will have made the changes that will make supporting it unnecessary. Amendment 1 also stands in the name of my noble friend Lady Royall and myself. It is already clear that establishing a register only of consultant firms would add nothing to the existing voluntary register. It would omit hundreds of employers—the in-house, public bodies, charities and, perhaps most importantly, trade associations—as well as more than 1,000 individuals who work in this industry.
We have heard the Government boast about being part of the Open Government Partnership, and Ministers say that the public should be able to see who is lobbying Ministers. However, as we know, the Bill will not do that. It will only tell us the companies for which, for example, Bell Pottinger has had direct contact with a Minister over the past quarter. It will not name the individual lobbyists concerned, nor will it identify the company on whose behalf that meeting took place. So if a lobbying company met a Minister, for example, on behalf of a defence company, we still would not know that. In the hypothetical Bell Pottinger case, it has, according to Marketing Week, some 900 clients; so we would only know that Bell Pottinger was meeting somebody on behalf of one of those 900 clients but not which one it was. If the Minister, instead of meeting a consultant, met the actual defence company itself, or its trade association, that would not appear on the register at all, because the lobbyists would be direct employees.
This is very different from the United States where, we understand, Mr Cameron’s election guru, Jim Messina, has just taken up a job with the American Gaming Association, which is about to lobby on online gambling. That will all be declared, but in the UK, there will be no record of such lobbying by organisations such as the Association of British Bookmakers, despite the public interest in knowing who is lobbying the Government, in this case, on gambling.
According to today’s Daily Mail, the Chancellor took the boss of one of the world’s biggest makers of betting machines on his trip to Beijing. That is something that the company would not have to declare because it would be doing that lobbying direct. It is interesting that the Rank Organisation discloses far more than the Bill actually asks. It has decided to set out the spending that it makes in its government and regulatory affairs work—for example, £115,000 to Luther Pendragon, Ernst & Young and FTI and another £88,000 in membership fees to three trade organisations: the Bingo Association, National Casino, and the Remote Gambling Association. However, none of those would be required under the Bill. So, congratulations to Rank but not to the Government.
Similarly, we would know nothing about meetings between the big six energy companies and HMT or DECC officials because they use their direct staff for that. Or consider the anti-electronic-cigarette lobby, largely funded, I understand, by the pharmaceutical industry, which produces nicotine replacement therapy and ideally would like e-cigarettes off the market. Johnson & Johnson, GSK and Novartis have teams dedicated to that lobbying work, and none of that would be known under the current provisions.
I am afraid that the Bill is rather a damp squib and, unless we amend it, it will exclude virtually all business lobbying, whether done by the companies themselves or by their trade bodies. Worse, even where one of the big agencies such as Weber Shandwick or Bell Pottinger register, we will still not have a list of their staff so that if one of their lobbyists met a Minister, we would be no more the wiser about who that lobbyists’ clients actually were.
In the debate on Part 2, the noble Baroness, Lady Williams, who is not currently in her place, warned us of the danger to our democracy of American-style lobbyists, and indeed her autobiography, which I recommend, draws on her wide experience of that side of the Atlantic. She talks of the powers of lobbyists there and the extraordinary influence of organisations such as the American Association of Retired Persons, the National Rifle Association and the American Israel Political Action Committee. As she and your Lordships’ House must know, though, none of those or their UK equivalents would have to be registered under the Bill—nor the British Insurance Brokers’ Association; the Building Society Association; Philip Morris; FOREST; the nuclear industry; One Hub or None, which is in favour of Heathrow’s expansion; the CBI; the TUC; or the drinks industry, despite 130-odd meetings with civil servants to resist minimum unit pricing.
What is the point of the Bill, particularly this clause, if it does nothing to shed light on what goes on behind closed doors in Whitehall? For the sake of democracy and good governance, we need to see who is lobbying whom and about what. The register should cover the act of lobbying—the status, I think the noble Lord, Lord Norton of Louth, said—not the type of lobbyist, otherwise this is open to abuse. If an issue becomes very sensitive, you can simply have the lobbyists who have been working for an agency become directly in-house and put on the payroll of a particular company at that time, and then none of their activity will have to be registered. Or a small lobbyist could simply work part-time for 10 clients and be paid directly by them, and then we would know nothing about them.
A list of lobbying firms is not enough. That is not what was foreseen in the coalition agreement, it is not what the lobbyists themselves want and it is not what Unlock Democracy or Spinwatch want. The charities and trade unions have told us that they are very content for their public affairs professionals to be registered and to disclose their lobbying meetings. We strongly support Amendment 1 regarding the production of a proper, comprehensive and statutory register of all professions lobbying the Government. Democracy demands nothing less.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, the amendment moved by the noble and learned Lord, Lord Hardie, and supported by the opposition Front Bench would amend Clause 1 such that the register applied to professional, rather than consultant, lobbyists. The noble and learned Lord said that if the amendment was carried then it would need some consequential amendments. I respectfully suggest that it would need more than just consequential amendments because there is no definition of “professional lobbyists” in what he is offering to the House, of which I will say more in a moment.
From the discussions which I understand took place in Committee on this issue and on amendments previously tabled by the Opposition, it appears that they would capture—as the noble and learned Lord and the noble Baroness, Lady Hayter, made clear that they would wish them to—so-called in-house lobbyists in addition to consultants and, with Amendment 11, also employees. However, as I have said, there is no definition given of professional lobbying to accompany the amendment and its effect would therefore be that the provisions of this Part would be undermined such that a functioning register could not be established. I do not believe that that could simply be resolved by a number of consequential amendments.
We have discussed at length, in various debates on the Bill, the importance of clear definitions. Until now, the Opposition have struggled somewhat to define what they mean by “professional lobbying”, and now seem to have abandoned such a definition altogether. It is vital that we understand exactly who is intended to be captured by the amendments—whether this includes, for example, charities and all the paid employees of charities. Does it include church groups? Does it include the vicar who makes representations on behalf of his parishioners, because he is in paid employment? The noble Baroness shakes her head, but the problem is that without any definition we simply do not know who is intended to be covered by what she proposes.
Baroness Hayter of Kentish Town
We have said throughout that the definition used by the professional organisations—which would absolutely answer every point, as I am sure the noble and learned Lord must have read—is one that we are very content with.
Lord Wallace of Tankerness
My Lords, it is fair enough to say that, but it is not what the House is being asked to vote on today. It is being asked to vote on something which is devoid of any definition.
Lord Campbell-Savours
If the professionals have designed a system which includes them, why can that not be in the consequential amendments? Why do the Government not come back at Third Reading to include those provisions?
Lord Wallace of Tankerness
Because, my Lords, there have as I understand it been many attempts made to pin down and define what is meant by “professional lobbyists”, none of which has met with approval or the kind of certainty we want in previous debates. Perhaps we can answer two of the points of the noble and learned Lord and the noble Baroness. Simply to introduce ambiguity to a prohibition provision that is accompanied by serious criminal sanctions is unacceptable. That lack of clarity leaves the amendment fatally flawed.
As the Government have made clear throughout the passage of the Bill, our proposals for a register are designed to address the specific problem that we have identified. One of the things that gave rise to complaints in the media was that when consultant lobbyists were lobbying, people did not know who their clients were. That is the issue which the Bill addresses. It is not always clear whose interests are represented by consultant lobbyists when they meet Ministers and Permanent Secretaries. The context is that this Government have for the first time made it clear to the public exactly who Ministers and Permanent Secretaries are meeting. The Political and Constitutional Reform Committee’s report on the Government’s initial proposals for a statutory register of lobbyists made clear that identifying the problem that the register is intended to address is critical if successful regulation is to be achieved.
While we acknowledge that there are those who consider the focus of the proposed register too narrow—I am aware that these criticisms have been made—we have yet to see a clear articulation of the problem that would be addressed by expanding the scope to all so-called professional lobbyists. The point has been made about in-house lobbyists. It is quite clear whose interests are represented by an in-house professional lobbyist: it is the person who employs him or her. If you are an in-house lobbyist for the Scotch Whisky Association—I am not sure if that association has in-house lobbyists, but let us assume that it does—it does not take a genius to work out that if you are lobbying a Minister or Permanent Secretary, those are the interests that you would be representing. If you are an in-house lobbyist for one of the utilities and you meet a Minister or Permanent Secretary, it does not take a huge leap of the imagination to guess that you are representing the interests of the organisation which employs you. I cannot honestly see what is added by creating a list of people and their employers. If I have missed the point, I am more than happy to have it explained.
Baroness Hayter of Kentish Town
There are two issues. The first is that there are some enormously large employers and we do not know whether they are lobbying over a particular application for planning permission, for a new medicine or for something else. The second is that unless they meet a Minister or a Permanent Secretary under the silly bit of this Bill, we will know nothing; whether they meet senior civil servants, Bill teams or policymakers in the Civil Service, that will not be covered at all.
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?
Lord Wallace of Tankerness
If the Scotch Whisky Association was lobbying itself, then the important thing is that if the Scotch Whisky Association is meeting a Minister or a Permanent Secretary, then that would be in the returns which the Minister or Permanent Secretary makes. That would make it very clear that it is the Scotch Whisky Association that the Minister has been meeting. That is what I think people wish to know. In a moment I will address my noble friend’s amendments to say some of the things which the Government intend to do to actually improve the openness to which we are already committed and delivering.
The position—as I understand it—which we have adopted or sought to adopt is the position in Australia. I am delighted to see my noble friend Lord Wallace of Saltaire here—I just wish he was actually right here because he has a wealth of knowledge and experience on this Bill. He very helpfully reminded me that we have modelled these provisions on the position as it is in Australia, whereas Canada has what might be described as medium regulation, which requires some of the information on employees and in-house lobbyists to which the noble Baroness and the noble and learned Lord referred. That system costs £3 million a year and, as my noble friend says, there is actually so much detail that it almost ceases to be useful. There is almost a detail overload, whereas our system replicates the Australian model. We expect it to cost considerably less, at £200,000 a year, and we believe that that is a very good system where the consultant lobbyists are identified, their clients are identified and the Minister works hand in hand with the regular returns from Ministers and Permanent Secretaries as to whom they have met.
I was actually struggling to see how the problems raised by the noble Baroness would be addressed by just adding more names to a register of people who are employed, unless—as we have committed to and are doing—you also indicate who Ministers are actually meeting. It does not add anything else by having the name of the person who was the in-house lobbyist, for the sake of argument, at one of the utility companies when they met the Secretary of State for Energy and Climate Change.
Until we see evidence of the case for introducing a register of all professional lobbyists, we remain reluctant to expand the scope of these proposals because we believe that what we have here is proportionate and problem-specific and will increase transparency without discouraging engagement by those who will be affected by policy and legislative decisions, such as businesses, charities, community groups and members of the public.
Amendment 11 would require consultant lobbying firms to disclose the names of all who undertake consultant lobbying activity on their behalf. The Government do not consider that such a requirement is either necessary or appropriate. The Bill requires the publication of the clients of consultant lobbyists, and the existing meeting publication scheme publishes both the persons Ministers and Permanent Secretaries meet as well as the body or firm that employs them. Transparency of who a consultant lobbyist is is therefore achieved on that information alone. To require the disclosure of the names of every private individual who is employed by a consultant lobbying firm would raise issues of proportionality and justification when the disclosure of such names provides no greater transparency, because we will know what the group, organisation or company is that meets the Minister or the Permanent Secretary. Therefore in return for listing a large number of names there seems to be no increase at all—not even a proportionate one—in the amount of the transparency than what is made available at the moment through the scheme of publication of persons whom Ministers and Permanent Secretaries meet.
Lord Tyler (LD)
The Minister will recall that at every previous stage of the Bill I have pressed that the Government should recognise that the key issue is not who the lobbyist is but who he or she meets, for what purpose and when. I very much welcome what my noble and learned friend has just said about the quality of the record of meetings that this Government have introduced. Perhaps he can go just a step further. He will be aware, from the discussions that have taken place across the House—and there has been support for this at every stage—that the present records of meetings are very often way out of date and not very detailed, and there is a grave discrepancy between the records that come from some government departments and those that come from others. In addition, it is very difficult to access them in a normal way through the computer. I instanced that we tried to find 23 different websites that would give us that information. Is my noble and learned friend now saying that there will now be active involvement by the Government to make sure that the situation is improved right across government?
Lord Wallace of Tankerness
I am very grateful to my noble friend and I recognise his long-standing interest in this, not just in terms of the Bill. I hope that I will directly address the points he has raised in responding to points made by my noble friend Lord Norton.
My noble friend’s amendment would revise the title of the Bill so that it referred to the registration of consultant lobbyists rather than the transparency of lobbying. His amendment appears intended to suggest that the provisions outlined in Part 1 of the Bill will not enhance the transparency of lobbying. He will not be surprised to learn that I respectfully disagree. This Government have done more than any before to enhance the transparency of government and decision-making, and these provisions will extend that transparency. We are the first Government to proactively and regularly publish details about Ministers’ and Permanent Secretaries’ meetings with external organisations, and we do so alongside a huge amount of open data regarding departmental spending and procurement. We are recognised as international leaders in open government and we continue to introduce initiatives to further extend transparency in government and the public sector.
We listened carefully to the concerns expressed during the Committee stage debate. In response to the question raised by my noble friend Lord Tyler, I am pleased that I can today commit to noble Lords that we will make further improvements to the accessibility of government transparency information. We will ensure greater co-ordination of the publication of data sets so that all returns within a quarter can be found on one page. I hear the criticism that he makes, and we ought to get better at the speediness with which we make this information available, but we will improve the access to and presentation of those data, including by improving the consistency of presentation and titling. We will also ensure greater consistency in the content of departmental reporting, particularly on including the subject of meetings. Finally, we will ensure that the gov.uk transparency pages contain a link to the statutory register of lobbyists so that the data can be easily cross-referenced.
The practical implications of those improvements are that: rather than having to visit a number of different sites or pages, all information will be accessed via one easily located page of gov.uk; the consistency of those data will be improved so that the transparency reports can be more easily located via search functions; and the subject of the meetings will be set out more helpfully—for example, rather than describing them as “introductory” or “catch-up” meetings, the detail of the meeting discussion will be outlined. Therefore, if, for example, my right honourable friend the Secretary of State for Energy and Climate Change was meeting someone, the subject would include not just energy policy but things such as fracking.
I hope that these practical proposals to which the Government are committing themselves will improve the transparency of decision-making further than we have already achieved, and that the Part 1 provisions will complement and enhance them. I dare say that they will do more to improve transparency than just having a long list of employees of a consultant firm. Obviously, if an employee—the noble Baroness mentioned Bell Pottinger, so for the sake of consistency let us say that this was an employee of that firm—had a meeting, the record would list not just “Joe Bloggs” but “Joe Bloggs of Bell Pottinger” and the subject of the discussion. As a result of the Bill, the list of Bell Pottinger’s clients would also be made available. I therefore believe that what we propose today does far more to improve transparency than simply making available a list of employees, and it reflects suggestions made by a number of colleagues who have made representations.
Although this does not relate directly to the actual register or to the Government’s scheme, I can also indicate that in our response to debates in Committee and to concerns that have been raised by Members of your Lordships’ House—I do not believe that this has been raised on any of the amendments now before us—we are committing ourselves to subjecting the appointment of the registrar to the scrutiny of the Political and Constitutional Reform Committee of the other place. By doing so, we are reiterating our commitment to the independence of the registrar.
Lord Campbell-Savours
If I put a scenario to the Minister, perhaps he will be able to give me the answer. If an in-house lobbyist from, let us say, IGas, the shale gas production company, were to meet a junior Minister or a civil servant in the department, by what means would a member of the public or a journalist know about that?
Lord Wallace of Tankerness
My Lords, if a lobbyist meets a Minister or the Permanent Secretary, there will be a scheme of publication—as, indeed, we are committed to publish at the moment, and we do. The noble and learned Lord, Lord Hardie, who moved the amendment, will recognise the name if I mention Mr Michael Clancy of the Law Society of Scotland. If I met Mr Clancy, at the moment I would register that, and put on my quarterly return that I had met Mr Clancy of the Law Society of Scotland. In the last term I think there was an issue relating to the banking reform Bill; I cannot remember if I actually met him or had correspondence with him about that—but this is what I would envisage would happen. There would be a reference to “Mr Michael Clancy, Law Society of Scotland: representations on the banking Bill”, or whatever its formal title was. That is how I would envisage the system working. The record would not simply say “catch-up meeting”—a term which has, perhaps, caused frustration to some in the past.
My Lords, these commitments show that the Government have listened—
Baroness Neville-Rolfe (Con)
Perhaps I may ask my noble and learned friend for further clarification about meetings. When I was in business I sometimes found that a note of a meeting was sent to the company before being made available under freedom of information or other provisions. The problem often was that the report of the meeting was not very accurate. Will there be any system of clearing or showing notes of the formal meetings that he has described to the people who were involved in them, simply for the sake of accuracy?
Lord Wallace of Tankerness
I am grateful to my noble friend for asking that question. I have not said that we will publish the minutes of meetings; the example I gave showed that we would record the detailed nature of what the meeting was about. I hesitate to use the word “subject matter”, because until now that term has also covered “catch-up meetings” and “introductory meetings”. It is not anticipated that we would publish minutes of such meetings. If a meeting had taken place on fracking, I do not think that any clarification would be needed between the Minister and the company as to whether the meeting was about fracking. It is not proposed that minutes would be made available, but there may be other ways—under, say, freedom of information provisions—in which other information might become available. None the less, what we are committing to today takes our commitment as a Government that much further. Ours has been a listening response, and I believe that it will do far more for transparency than—
Lord Hardie
Can the Minister help me in the following regard? He relies upon the fact that a system of recording meetings has been introduced. That is, of course, very welcome. He gave the example of a meeting with Mr Clancy of the Law Society of Scotland—and I am sure that he and his officials are very diligent in recording such meetings. However, what if we have a Minister or officials who are not as diligent and who perhaps record it as a meeting with Mr Michael Clancy full stop and do not explain who he is? Clearly, if Mr Michael Clancy is a lobbyist and my amendment is accepted, the cross-reference of the register will identify who he is and what his interests are.
Lord Wallace of Tankerness
My Lords, I hear the point that the noble and learned Lord is making. As I think my noble friend indicated, if the register is anything like the Canadian register you may have difficulty finding out who it is. However, more importantly, the transparency part of it comes in because of what Ministers would be obliged to put in their scheme. There is an ethics and propriety department in the Cabinet Office. I assure the noble and learned Lord and your Lordships’ House that when we submit our returns that department can get back to us. If we just put “Mr Michael Clancy” and there is no indication of who he is, we will be pushed to elaborate on that.
The noble Baroness said that, if a defence contractor was involved, we would not necessarily know that. In fact, under the publication scheme, the company’s name would have to be given. If that company was a defence contractor and the meeting was about the provisions of the defence Bill that is before your Lordships’ House, such information would be far more relevant, transparent and informative for the public than just giving the name of an employee of that particular company. Therefore, I ask the noble and learned Lord to consider whether his amendment advances transparency at all, given what I have indicated that the Government are willing to do, and whether it would lead to considerable uncertainty. Indeed, if it took the matter as far as the Canadian experience, it could, through an overload of information, be even less effective in promoting the transparency that we both wish to see.
Lord Hardie
I am grateful to noble Lords for their contributions to this short debate and to those who have spoken in support of the amendment. As regards the noble and learned Lord’s criticism that the amendment does not include a definition of professional lobbyists, I would say two things. First, is not that definition self-evident from the words “professional lobbyists”? Is it not a similar situation to that of a solicitor who is a lawyer performing legal services as either an employer—a principal—or as an employee? Equally, is not a professional lobbyist someone who lobbies as part of his profession as either a principal or as an employee? As regards the noble and learned Lord’s difficulties with the definition, what efforts have the Government made since the very full debate we had in Committee to try to come up with a definition? If that is a difficulty for the Government and this amendment is carried, perhaps they could put in a definition, although I do not think that is necessary.
Lord Wallace of Tankerness
The noble and learned Lord asks a fair question. The answer is that that is not the scheme that the Government have been following. We did not think that we needed to produce a definition of professional lobbyists. I ask him to reflect on the fact that if the managing director of a large drinks manufacturer were to meet the Secretary of State on a particular issue—for example, minimum unit pricing—I do not think that one would consider that person to be a lobbyist. Why should it matter that the name of a lower-ranking official in a company who lobbies on behalf of the company is in the public domain but not that of the managing director, when the information that the public want relates to the latter? I have said that we are willing to give that information, because a Minister would have to say that he had met the managing director of company X to discuss minimum unit pricing. Surely that is a much better route to transparency than putting the name of a much lower-ranking official than the managing director.
Lord Hardie
I take the noble and learned Lord’s point but it is not an alternative: it is not either disclosure by the Minister or registration. The transparency arises from the combination of the disclosure by the Minister and the registration, and the ability of the public to cross-reference the two to see precisely on whose behalf the lobbyist is speaking.
The noble and learned Lord also mentioned cost and referred to the Canadian system. He will be aware that the system has to be cost-neutral. The cost would be met by the various people who had to register. Of course, the larger number of entries in the register would—or should—offset the increased cost.
The professional body, the Public Relations Consultants Association, supports this amendment. Although it currently operates the voluntary register, it sees the benefit in having a statutory register provided that that register covers all in-house lobbyists as well. As I said earlier, some of the register already includes entries relating to in-house lobbyists. The noble and learned Lord also referred to charges, but there are already charges on the existing voluntary register. In all the circumstances, I wish to test the opinion of the House.
Baroness Royall of Blaisdon (Lab)
I rise to speak to Amendment 2 in the name of the noble and learned Lord, Lord Hardie, my noble friend Lady Hayter and myself, which extends the parameters of who needs to be lobbied to prompt registration to include special advisers, civil servants and PPSs.
I, too, welcome the enhanced transparency in relation to reporting that was mentioned by the Minister in response to the earlier debate. However, I believe that will not be enough if the subjects who are principally lobbied are not asked to report. There has been progress, but it is simply not enough.
Both today and in Committee, a powerful and clear case has been made by former Ministers, former senior civil servants—which includes those in the Diplomatic Service, pursuant to the discussion we had in Committee—and former special advisers as to why the remit of the Bill must be extended if it is to have proper impact. As the noble Lord, Lord Norton of Louth, said in Committee, the target is normally the Minister and you therefore have to focus on the channels for reaching the Minister. The Permanent Secretary, as we have heard, is not a significant channel for this purpose. Indeed, the lobbying industry itself has said on numerous occasions that,
“we do not make personal representations to Ministers or Permanent Secretaries”.
So there we have it from the horse’s mouth. Yet the Government did not provide any convincing reason for why only meetings with Ministers and Permanent Secretaries should be subject to the provisions in Part 1. I hope that this short debate will persuade the Minister that there need to be some changes to this Bill in order to make it properly creditable.
Civil servants here and in Brussels should be included, not because there is any suggestion that they are conducting themselves in any inappropriate manner but to fulfil the purported aim of the Bill—that is, transparency. Last week it was revealed that there had been 130 meetings between representatives of the alcohol industry and the Government since 2010. The BMJ investigation showed that they had an extraordinary level of access to the Department of Health, which later decided to U-turn on the question of minimum unit pricing. It was a comment from the Minister for Public Health on the “Today” programme on Wednesday that caught my attention. Of those 130 meetings, she said, “But most of those were with officials”. Precisely. If the Bill is to increase transparency, the public should have access to this information.
I turn to special advisers. Naturally, I support Amendment 3 in the name of the noble Lords, Lord Tyler and Lord Greaves. Special advisers should certainly be subject to the same level of transparency, given how closely they work with their Ministers and the influence that they can and do have on policy. The case has already been well made but I make no apology for returning to the News International lobbyist Fred Michel, whose case proves quite how large the loopholes in the Bill are. He was summoned to the Leveson trial after DCMS released 164 pages of e-mails between him and Adam Smith, the then Secretary of State’s special adviser. This came to light only in what I am sure everyone would agree were quite extreme circumstances. Again, if the Bill is to increase transparency, the public should be able to access these details.
Given the stance taken in Committee, I imagine that the Minister may well object by saying that the provisions in our amendment are disproportionate; indeed, the noble Lord, Lord Turnbull, has just made that case. Of course that argument cannot apply to extending the Bill to cover special advisers—that should be a given now—but, if proportionality is the Minister’s only concern, I hope that he will commit to bringing an amendment back at Third Reading that at least includes special advisers, civil servants and Parliamentary Secretaries. There is time for the Government to work on an amendment that could ensure that these people are included in the least bureaucratic way.
The Minister may also point to the fact that the limits that the Government have put in the Bill mean that there is no obvious place to publish such information. In Committee I asked the Government to look at the least bureaucratic way of extending the scope of those lobbied, but they do not seem to have taken the opportunity to find a solution. We can provide the Minister with two solutions. No doubt the Minister will be aware that on the website data.gov.uk, the meetings between special advisers and newspapers editors, proprietors and executives are already published, so there is no convincing argument why that cannot be extended. The other solution may have been provided by the noble Lord, Lord Norton of Louth, and it is elegantly simple: the Minister, when publishing details of his own meetings, publishes information about the meetings of civil servants and special advisers in his department.
This House has explained—very graphically, in many ways—the problems relating to the Bill and its extent, but we have also pointed the Government towards solutions. I very much hope that they will accept these amendments. If not, I trust that they will go away and come back with an amendment at Third Reading that takes these crucial issues into account.
Lord Wallace of Tankerness
My Lords, the noble and learned Lord, Lord Hardie, has moved an amendment that would extend the scope of the register to include meetings with Parliamentary Private Secretaries, civil servants and political advisers, while the amendment of my noble friend Lord Tyler would extend the scope to include meetings with special advisers.
At the outset, I want to pick up the point that was made by the noble and learned Lord, Lord Woolf, who asked whether there was a difference between “political adviser” and “special adviser”. My understanding is that the term “special adviser” is defined in the Constitutional Reform and Governance Act 2010. In Committee the noble and learned Lord, Lord Hardie, indicated that the term “political adviser” was really referring to special advisers. One is a term of art already recognised in statute, but for the purposes of this debate I think that everyone is talking about the same entity, if that is the right word.
The Government have previously outlined that the register is designed to complement the existing government transparency regime, to which I referred and on which I made announcements in the previous debate, whereby Ministers and Permanent Secretaries proactively publish details of their meetings with external organisations—I should add, for the avoidance of doubt, that these will be external organisations whether the Minister meets them in Whitehall, Edinburgh, Brussels, Washington or wherever. The register will address a specific and discrete problem within that context: that it is not always clear whose interests are being represented by consultant lobbyists.
Baroness Williams of Crosby
On that point, I raise the question of whether the three most senior classes of the Civil Service are not in a much narrower area in terms of cost than the wider range of civil servants to which my noble and learned friend has been referring. They seem to be almost completely distinct in terms of the costs involved.
Lord Wallace of Tankerness
My Lords, I accept that it would be more proportionate, but I really am not in a position to say. One of the problems is that some of the terms used, such as “director-general”, mean completely different things in different departments. That has been another issue. At a time when we should be streamlining public services, not imposing additional costly burdens upon them, I do not believe that the added burden of 5,000 extra diaries would be proportionate.
Baroness Royall of Blaisdon
I should like to raise two issues. First, nobody is suggesting that all meetings with all civil servants should be included—I have some sympathy with what the noble Baroness, Lady Williams, said—only meetings with lobbyists. Secondly, the Minister has not answered the point made earlier in Committee, I think, or the suggestion made by the noble Lord, Lord Norton of Louth, that when publishing details of his or her own meetings, Ministers should also publish information about the meetings of civil servants and special advisers in his or her department. That seems a very unbureaucratic way of addressing the issue.
Lord Wallace of Tankerness
My Lords, the noble Baroness says that they are not asking to include all civil servants’ meetings with everyone, but the amendment does say all civil servants, although I admit that she says that it would cover any lobbyist who met civil servants. As for Ministers’ reporting regime, we have said that Ministers will report the people with whom they have had meetings whether they are lobbyists or non-lobbyists. To further subdivide that would be a considerable burden on 450,000 civil servants. I do not believe that it would add to the transparency that we have tried to enhance and improve by what we have already done as a Government, some of which has been unprecedented. I think that the noble and learned Lord is seeking to intervene.
Lord Hardie
I am grateful to the noble and learned Lord. The point that I am seeking to make in this amendment is that one has to go back to the definition in Clause 2. In the terms of that definition, it is people who fall within the category of persons carrying on the business of consultant lobbying who have to register under Clause 1. Clause 2(1)(a) states that they are required to register if, in short,
“in the course of a business and in return for payment, the person makes communications within subsection (3)”.
It is the communications that we are addressing. Subsection (3) states that the communications are,
“oral or written communications made personally to a Minister of the Crown or permanent secretary relating to”,
the various matters mentioned. I think that second Permanent Secretaries are on the list of people in the schedule.
The point of this amendment is to highlight that the narrow definition of people to whom communications are being made which require registration on the part of consultant lobbyists renders the whole concept of registration almost worthless because, as has been clear from the contributions across the House, these people are not just lobbying Ministers. To get round that, a lobbyist who lobbies a special adviser or a civil servant concerned with policy would not be required to register.
Lord Wallace of Tankerness
I think I understand the point that the noble and learned Lord is making about the requirement to register if you are making communications with these people. It may be that that would bring more names on to the register—I simply do not know—but to enhance transparency, the complement to such an extension would be the introduction of meeting reporting obligations on these public officials. Otherwise you have a list of names of consultant lobbyists and their clients but there is nothing there to which you can then relate them. It becomes fully meaningful only if you have that complementary extension of the scheme. On the amendment, I sought to make the point that that would be a huge burden and one that would not be consistent with efficiency in government; nor indeed would it be proportionate to improving transparency.
Lord Campbell-Savours
The Minister has not responded to the very narrow point that was made by my noble friend Lady Royall of Blaisdon. She asked a very simple question: why should a Minister, in his or her registration, not register the activity of that Minister’s individual political adviser? That political adviser is working on behalf of that Minister. No doubt the noble Lord, as a Minister, has political advisers of his own. In the event that they meet lobbyists from outside, they are meeting them on his behalf. Why should not he, in his registration, refer to those meetings?
Lord Wallace of Tankerness
My Lords, until I became Deputy Leader of your Lordships’ House I did not have a special adviser. I now have one but I am not sure that she has met anyone, although she has said that if she could get a diary secretary it might be a bonus. We take the view, as I indicated earlier, that it is the Ministers who are making the decisions. On that basis, we believe that it is communications with Ministers—and not just meetings, as the noble and learned Lord said—that are pertinent. We believe that these proposals are appropriate and proportionate. I therefore urge the noble and learned Lord—
Lord Tyler
I am grateful to my noble and learned friend, who is very good to take points from us all. I sympathise with the point he makes about the scale of the increase in the number of people who would be involved if Amendment 2 was agreed, and the potential enormous cost as a result. However, that does not apply to Amendment 3, as has been made clear on all sides of the House. The very specific nature of the character, responsibility and role of special advisers—I think the noble Lord, Lord Turnbull, said that there are 98 of them—would not require a great increase in the amount of information to be given by government in terms of both the record of meetings and who, as regards lobbyists, meets them. Can he give an undertaking that between now and Third Reading he will look very hard—in sympathy with the views that have been expressed on all sides of the House—at the practicalities of including special advisers? In terms of both the meetings they have and the nature of the people who they meet, there is broad support right across the House for their being exceptional. They are indeed, as their title states, special. In those circumstances I hope that my noble friend is prepared to look again at that issue.
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.
Lord Hardie
I am grateful to noble Lords on all sides of the House for their support for the amendment. I realise that the noble Lords, Lord Tyler and Lord Turnbull, suggest that the matter should be confined to special advisers. However, as I said in Committee, when I was in practice at the Scottish Bar I was standing junior counsel to the City of Edinburgh district council, and then, latterly, senior counsel—and it was clear from my experience there that it was not the senior director of administration or the director of planning who was the subject of contact by people seeking to influence policy. The contact was with the local authority officials—in this context, the civil servants—who were concerned with the formulation of policy. It strikes me that to exclude the very policymakers, whether civil servants or special advisers, makes nonsense of the registration process. I therefore beg to test the opinion of the House.
Lord Wallace of Tankerness
My Lords, the amendments in this group are a number of technical amendments in the name of my noble friend Lord Wallace of Saltaire. It may assist the House if I briefly go through them and explain their purpose.
Amendments 4, 5 and 6 clarify, and provide greater consistency to, terminology used in relation to the recipients of the lobbying communications and the communications themselves. The minor amendment, Amendment 6, which clarifies the term “Minister of the Crown”, does not, in the context of the Bill, capture the corporate bodies of the Defence Council and the Board of Trade. As Clause 2 makes clear, the communications that the register is intended to capture are those that are,
“made personally to a Minister of the Crown or permanent secretary”.
The definition in the Ministers of the Crown Act 1975 includes the Defence Council and the Board of Trade. Both these entities, however, are corporate bodies with which it is not possible to make personal communications. As such, these amendments remove those bodies from the definition and, in doing so, provide further clarity regarding the communications that fall within the scope of consultant lobbying.
Amendment 8 clarifies the position in relation to employees who make lobbying communications as a part of their employment. Specifically, the amendment provides that employees will not be considered as carrying on,
“the business of consultant lobbying”,
if they make lobbying communications as an employee in the course of a business carried on by their employer. The amendment therefore clarifies that in-house lobbyists are not captured by the Part 1 provisions, and that it is a consultant lobbying firm rather than its employees that are required to register in respect of any lobbying activity. As Ministers have made clear—indeed, as we have already debated—the register is designed to address the problem that it is not always clear whose interests are represented by consultant lobbyists.
Amendment 9 provides, first, that where an individual makes a communication in the course of the business of another, then both the individual and that other business or person make that communication. As such, the amendment ensures that the client on whose behalf consultant lobbying communications are made is always declared on the register even if that communication is undertaken by a subcontractor that the consultant lobbying firm has engaged. The amendment also provides that if the individual happens to be an employee—as opposed to a contractor, for example—then the employee is not to be regarded as making the communication on behalf of their employer but, rather, only on behalf of their employer’s client, reflecting the fact that in-house lobbyists and employees of consultant lobbying firms are not required to register.
Amendment 10 is intended to remove any ambiguity as to the maximum period of a reappointment term of the registrar, which is three years. An individual may be reappointed twice, and the maximum period for each of those terms is three years.
Amendments 18, 20 and 21 ensure consistency in the language used in the provisions relating to the cancellation of an information notice or the variation or cancellation of a penalty notice. By ensuring consistency of terminology, these amendments will further clarify the detail of the provisions relating to the cancellation and/or variation of these notices and ensure consistency with approaches to such matters in other legislation.
Amendment 19 clarifies that any individual, not just employees, can commit the offence of carrying on the business of consultant lobbying while unregistered if they and/or their organisation are unregistered. The amendment will remove any ambiguity as to whether the provisions apply to individuals who undertake consultant lobbying in the course of a business but are not employees of that consultant lobbying business—for example, contractors. It will therefore ensure that the application of the provisions in this respect is absolutely clear.
Amendment 24 has been tabled to clarify that the charges associated with registration will be set to ensure that the sums received offset the total costs of the registrar’s activities. Treasury guidance requires that if a charging regime recoups costs other than those directly associated with the service provided—in this instance, the keeping of the register—then the position should be made explicitly clear to Parliament. This amendment reiterates that the charges provided for in Clause 22 will be set to recover the total cost of the registrar’s activities, including those that are not directly connected with the keeping of the register, such as enforcement activity.
Amendment 25 removes drafting in relation to the netting-off of monies from the Consolidated Fund for the funding of the registrar. Such funding will instead be arranged administratively between the Cabinet Office and the Treasury.
Amendment 27 is tabled to fulfil the Government’s commitment to implement the recommendations of the Delegated Powers and Regulatory Reform Committee in relation to Part 1. The Government, as ever, are grateful to the committee for its thoughtful consideration of the delegated powers in Part 1 and have accepted its recommendations in relation to this part in their entirety. The amendment alters the part to require that regulations under Clause 4(5) or Clause 5(4), the first regulations to be made under Clauses 11(3) and 17(3), and any regulation which amends or modifies the provisions of the part, must be made by the affirmative procedure. As a result, Parliament will be provided with the opportunity to undertake detailed scrutiny of any regulations made under the powers in these clauses. Again, I express thanks to the Delegated Powers and Regulatory Reform Committee for its detailed report on this part of the Bill. I beg to move.
Lord Hardie
My Lords, in moving this amendment, I declare an interest. As I explained in Committee, I am a member of the All-Party Parliamentary Group on Taiwan and have received hospitality from that Government in the form of social events. Several years ago, I visited Taiwan on two occasions as a guest: the first was as part of a judicial delegation from Scotland and the second was as a lecturer at an international conference. As I advised the registrar of interests last week, I have now been invited to speak at another conference next month, and my expenses will be paid by the Taiwanese Government. It is a legal conference.
Paragraph 3 of Schedule 1 excludes from lobbying activities communications from an official or member of staff of a sovereign power. In Committee, I sought clarification on whether that included countries such as the Republic of China (Taiwan), which is not a member of the United Nations and with which we have no formal diplomatic relations, although we do have an office and a representative there and it has offices in this country. The Minister promised to write to me. I received a letter dated 7 January from the noble and learned Lord the Advocate-General to the effect that communications from any foreign Government, irrespective of their country’s membership status with the United Nations or its diplomatic status with UK, would not meet the criteria for lobbying for profit in Clause 2.
In view of that response, it seemed that paragraph 3 of Schedule 1 was unnecessary, and I wrote accordingly to the noble and learned Lord. I received a reply dated 9 January, in which he confirmed that communications from foreign Governments,
“will not be captured by the definition of consultant lobbying outlined in clause 2”.
However, he added that paragraph 3 of Schedule 1,
“provides helpful clarity, especially to international colleagues, in relation to the application of the register and it is not our intention to remove it by amendment at Report stage”.
It seems to me that Clause 2 should be sufficient assurance to sovereign powers, and the addition of paragraph 3 may have the unintended consequence of causing concern for foreign states that are not sovereign powers. For that reason, the amendment seeks the removal of this paragraph.
In moving the amendment, I seek clarification from the noble and learned Lord as to what is meant by the term “sovereign power” in the Bill. Sovereignty would seem to me to include such issues as control over a geographical area whose citizens are governed by its rulers, whether they have been democratically elected or not. Taiwan is a democracy whose citizens enjoy universal suffrage from the age of 20. There are elections for the President and the legislature every four years. The President can hold office only for two successive terms. The Government pass legislation and govern their citizens, and Taiwan has diplomatic relations with a number of countries, including the United States of America. Does the noble and learned Lord accept that sovereignty does not depend upon membership of the United Nations or having diplomatic relations with the United Kingdom? In those circumstances, will he confirm that Taiwan would satisfy the test of sovereignty for the purpose of this provision? Even if Taiwan does satisfy that test, what about countries which do not? Which ones are they? Does the inclusion of sovereign states not cause concern for those countries which do not come within that category? I beg to move.
Lord Wallace of Tankerness
My Lords, the noble and learned Lord, Lord Hardie, has moved an amendment which would delete paragraph 3 of Schedule 1 and, as such, remove the explicit exemption from the requirement to register for members of staff and officials of sovereign powers and international organisations.
As the noble and learned Lord very fairly explained in moving his amendment, we have been in correspondence over the past week on this matter. The Government believe that, by establishing a statutory register of consultant lobbyists, this part of the Bill aims to make clear whose interests are represented by consultant lobbyists when they meet Ministers and Permanent Secretaries. It is not our intention that the register should capture international or diplomatic communications by representatives of foreign Governments or authorities or of international organisations. Communications made by representatives of foreign Governments or authorities will not be captured by the definition of consultant lobbying, as the noble and learned Lord has said, as they will not meet the criteria outlined in Clause 2 and the associated schedule. Those include, among other things, that lobbying must be done,
“in the course of a business and in return for payment”,
and,
“on behalf of another person”.
However, out of an abundance of caution, the Bill also includes a specific exemption in paragraph 3 that explicitly excludes officials or members of staff of sovereign powers and international organisations from the requirement to register in respect of their communications to UK Ministers and Permanent Secretaries.
Noble Lords will recall that Schedule 1 provides a number of explicit exemptions that are designed to provide absolute clarity regarding the application of Part 1 provisions. Those exemptions include one specifically excluding parliamentarians from the scope of the register. Although the Government have been absolutely clear that communications made by parliamentarians to the Government will not be captured by the Clause 2 provision, I understand that, none the less, noble Lords and Members of the other place have been particularly grateful for the extra clarity and reiteration provided by paragraph 4. Paragraph 3 is intended to provide equivalent clarity to sovereign powers and international organisations and the Government are not persuaded that it should be removed.
The noble and learned Lord asked specific questions regarding Taiwan. I am sure that he and perhaps other Members of your Lordships’ House would agree that the Report stage of the transparency Bill is perhaps not the most appropriate forum in which to discuss matters of international diplomacy. Indeed, if the noble and learned Lord wishes to pursue the issue, he may wish to take it up with my colleagues in the Foreign and Commonwealth Office. In these circumstances, I ask him to withdraw his amendment.
Lord Hardie
I am grateful to the noble and learned Lord for putting those remarks on the record and, in the circumstances, I seek leave to withdraw the amendment.
“3A An individual does not carry on the business of consultant lobbying by reason of making communications as an employee in the course of a business carried on by the individual’s employer.”
“(fa) a statement of— (i) whether there is in place an undertaking by the person to comply with a relevant code of conduct, and(ii) if so, where a copy of the code may be inspected;”
Lord Wallace of Tankerness
My Lords, in moving the amendment standing in the name of my noble friend Lord Wallace of Saltaire, I will also speak to Amendments 15, 16 and 22. As the Government have made clear throughout the debates on this part of the Bill, the statutory register of consultant lobbyists is designed to address a specific problem—that it is not always clear whose interests are represented by consultant lobbyists. Our objective is to ensure increased transparency without disrupting in any way the fluency of the dialogue between government decision-makers and those who will be affected by policy and legislative decisions.
It is not, nor has it been, the Government’s intention to attempt to regulate comprehensively all those who communicate with government, and the register will not, therefore, be associated with a statutory code of conduct. Instead, the Government are committed to ensuring that the statutory register complements the existing self-regulatory regime by which the industry promotes the ethical behaviour that is essential to the integrity and reputation of the lobbying industry.
We have been very grateful to those Members of your Lordships’ House for their thoughtful suggestions as to how this might best be achieved. After careful consideration of the debates both in this House and in the other place, and discussion with the industry and transparency groups, we have concluded that the most effective option is to provide for a statutory link between the statutory register and the industry-hosted voluntary codes of conduct. As such, Amendments 12, 15 and 16 will require consultant lobbyists to state in their register entries whether or not they subscribe to a publicly available code of conduct in relation to their lobbying activity and, if so, where a copy of the code can be accessed. Such a provision will enhance both the transparency and the scrutiny of registered lobbyists, and the Government hope that the measure will therefore be welcomed.
Additionally, the Government have tabled an amendment to clarify that the registrar can both revise and replace the guidance that he or she has published. I appreciate that this group also includes amendments in the name of the noble Baroness, and I will perhaps respond to these after she has moved them.
Lord Campbell-Savours
What are the circumstances in which a lobbying firm would not wish to sign up to the code of conduct?
Lord Wallace of Tankerness
I am not sure that this should be addressed to me as opposed to the lobbying firms, since it is sincerely hoped that they would sign up to a code of conduct. What we seek through these amendments is for them to indicate that they have signed up to a code of conduct and for there also to be a link as to where that code of conduct can be found.
Amendment 13 (to Amendment 12)
Lord Hardie
Perhaps I can answer the noble Lord, Lord Campbell-Savours. In the debate about the first amendment today, I referred to how the PRCA requires people who sign up to the voluntary register to sign up to the code of conduct, which has strong enforcement of regulations or provisions. My point earlier was that if that disappears and there is to be a statutory register in place, it would be appropriate that we have something which is at least as good, not something that detracts from the current position.
Lord Wallace of Tankerness
My Lords, I appreciate the welcome given to the government amendments by the noble Baroness, Lady Hayter, and my noble friend Lord Tyler. As I indicated, we listened carefully to the debate in Committee. We have responded by tabling these amendments, which will require consultant lobbyists to state in their register entries whether they subscribe to a publicly available code of conduct in relation to their lobbying activity and, if so, where a copy of the code can be accessed.
The Opposition’s amendments, spoken to by the noble Baroness, Lady Hayter, would require that lobbyists declare on their register entry which publicly available code of conduct they subscribe to, implicitly requiring such a subscription in order to register. The Government are not persuaded that the amendment is appropriate. Moreover, there is no provision that would require compliance with such codes or provide for enforcement.
The objective of the Part 1 provisions is to enhance transparency and scrutiny. We are not seeking to regulate behaviour. The noble Baroness mentioned the exchanges she had in Committee with my noble friend Lord Wallace of Saltaire about lobbyists who breach the Bribery Act. Of course, breaches of the Bribery Act are punishable by unlimited fines and up to 10 years’ imprisonment, or both. The Government do not consider it appropriate for a Bill to contain separate sanctions in addition to those already included in the Bribery Act, which are clearly very substantial indeed. It is quite proper that the Bribery Act includes serious and proportionate sanctions but it would not be appropriate for the transparency Bill to duplicate those sanctions. The Government considered the option of including a penalty whereby a person could be removed from the register but concluded that imposing a limitless prohibition on someone conducting their profession was too extreme a penalty.
Requiring lobbyists to declare whether they subscribe to a code will expose those who do not abide by the ethical principles that are so essential to the integrity of the industry. It is not the Government’s intention, however, to introduce a high-regulation regime whereby the registrar is responsible for monitoring and enforcing subscription to, and compliance with, codes of conduct. The Opposition also suggest that the registrar should be responsible for publishing a code of conduct. As my noble friend indicated, that is premature. The Government’s amendments are intended to complement the existing self-regulatory regime, not to replace or undermine it.
To pick up the point made by the noble and learned Lord, Lord Hardie, and the noble Lord, Lord Campbell-Savours, we do not anticipate that lobbying associations such as the PRCA, CIPR and APPC will withdraw their codes. Indeed, the industry has welcomed the link between its codes and the proposed register, which it recognises will enhance the existing self-regulatory regime. That was the feedback we got during the consultation. I heard the noble Lord’s inquiry but I am not aware that any explanation or example was given of circumstances in which a firm would not register. Rather, the industry anticipates that it will continue with its codes and that the proposed register—and the government amendment—will enhance the existing self-regulatory regime.
Lord Campbell-Savours
Would Ministers be happy to meet a lobbying company that did not subscribe to the ethical standards that have been set down, either by the association or any code that the Government might wish to introduce at some stage in the future? Indeed, are there circumstances in which Ministers would refuse to meet them?
Lord Wallace of Tankerness
My Lords, I do not think the noble Lord can reasonably expect a blanket application. There may be reasons—I do not know what they might be—that are not malign as to why a particular group has not signed up. We already know that a majority of lobbying firms sign up to and adhere to the respective codes of conduct, but we believe that making it a statutory requirement would lead to unnecessary pressure and that what we are proposing has struck the right balance.
I have a lot of sympathy for the point the noble Lord is making but it would not be appropriate to make a sweeping general obligation on all future Ministers when you cannot foresee particular circumstances that would occur at any time or place. I believe we have struck the right balance. I urge the House to support the Government’s amendments and I urge the noble Baroness not to press the amendment in her name.
Baroness Hayter of Kentish Town
My Lords, I thank the noble Lord, Lord Tyler, for what I think is his support for the approach we are taking on this.
Of course, Amendment 23 would be only permissive. It does not require the registrar to publish a code of conduct; it simply permits the registrar, should at some time in the future he or she feel the need to, to be able to do so. I am slightly surprised that the Government cannot even allow a registrar at some time in the future to be able to publish a code of conduct. They seem to be turning their back on any interest in raising standards.
The Minister spoke about the Bribery Act. Of course, the issue is that nobody will be able to be removed from this register for any criminal offence. We could have people convicted all sorts of tax evasion—anything—still on the register. I and others think that this would be very misleading as it will appear that they are on a statutory register and therefore have some stamp of approval.
As to the question of who would not sign up to it, I am sure that your Lordships’ House is well aware that the Association of Professional Political Consultants is supporting our amendment. It very much feels that it will be only the bad boy who does not bother signing up and that this really undermines the code of conduct.
I am not going to test the opinion of the House on this amendment. But in withdrawing it, I will say two things. First, it was very sad to read in the paper yesterday that the UN special rapporteur called this Bill,
“a stain on British democracy”.
Secondly, my fear is that, as per the warning of the Prime Minister, the next scandal waiting to happen will be from a consultant lobbyist, it will be behaviour that would have been caught by this code and it will be this Government who said they did not want to make signing up to a code mandatory. With those words, I withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank the noble and learned Lord for his amendment. It might be helpful if in response I indicate the Government’s thinking on sanctions and appeals. When considering the most appropriate sanctions in respect of non-compliance with the register, Ministers did consider the option of removing a person from the register, thereby prohibiting them or the company from continuing to operate as a lobbyist. We concluded, however, that such a sanction would represent a disproportionate penalty as it would essentially take away their livelihood. There are very few industries where, unless one is imprisoned, one is prevented from carrying out one’s professional activities if one has made errors in the course of doing so, and the Government are not persuaded that the lobbying industry should be singled out for such treatment. The sanctions regime that we have designed is therefore a proportionate one, designed to provide appropriate deterrent against, and punishment for, non-compliance with the provisions of the register.
Clause 6(6) does, however—as the noble and learned Lord has pointed out—provide the registrar with the ability to remove a person from the register. That provision is not drafted as a sanction, but rather as an administrative housekeeping measure to enable the registrar to maintain the accessibility and relevance of the register. The registrar may, for example, wish to remove individuals who have retired, passed away, chosen a change of career, or who work for a company that has been wound up. The noble and learned Lord’s amendment would enable a person to appeal against the registrar’s decision to remove them from the register, as under Clause 6(6).
We do not envisage that the registrar would remove any person from the register unless they were confident that the person no longer engaged, or no longer wished to engage in future, in consultant lobbying. I take the noble and learned Lord’s point that there are potential criminal sanctions attached to it. Obviously, as a former distinguished Lord Advocate, he will know that there is a discretion. Indeed, Clause 12(9) indicates that proceedings for an offence under this part in England and Wales may be instituted only by, or with the consent of, the Director of Public Prosecutions, and in Northern Ireland by or with the consent of the Director of Public Prosecutions for Northern Ireland.
Therefore, if a person was to find that they had been wrongly removed, if they wished to object, they could immediately advise the registrar that they were still living, or that they had not given up consultant lobbying, and accordingly the registrar could reregister that person without the need for an appeal and without any difficulty. If they remained dissatisfied in spite of the fact that they could prove that they were still living and consulting, it would be possible to judicially review a decision, although that is very unlikely given the much simpler course of reregistering.
The important point is that this is not intended as a sanction or a penalty, but rather one of administration where the company or the individual is no longer believed to be performing the role of consultant lobbyist. Therefore in those circumstances, if a person becomes aware of that and wishes to challenge it, the best and most simple thing to do is to ask to be reregistered rather than to go to some expense in seeking an appeal to a tribunal.
I hope that the noble and learned Lord is reassured by that explanation. This provision is not intended as a sanction and I invite him to withdraw his amendment.
Lord Hardie
I thank the noble and learned Lord for that explanation. I simply comment in passing that if it got the stage of having to have a judicial review, then that is a sledgehammer to crack a nut. But in all the circumstances I beg leave to withdraw the amendment.
“( ) Where an information notice has been served on a person, the Registrar may cancel it by serving written notice to that effect on the person.”
“( ) any individual who, not being entered in the register, engages in lobbying in the course of that business.”
“(7) Where a penalty notice has been served on a person, the Registrar may vary or cancel it by serving written notice to that effect on the person.”
“( ) The Registrar may publish—
(a) revisions to any guidance published under this section;(b) replacement guidance.”
Baroness Royall of Blaisdon
My Lords, I have little to add. Like my noble friend, I deeply regret that this Bill was not subject to pre-legislative scrutiny. I still do not see the urgency for this Bill. It would have been better if pre-legislative scrutiny had been undertaken now and we could have adopted the Bill in the next Session. Notwithstanding that, I strongly support this amendment from the noble Lord, Lord Norton of Louth, which, as he said, would enhance transparency. The Government have moved today in terms of improving the reporting in ministerial diaries of when lobbying takes place, but that is still a very narrow measure. This amendment is so clever but so simple in that all it does is develop existing procedures. It is not about a new bureaucratic mechanism; it is a very simple means of moving forward. I hope that, even at this late stage, the Minister will consider either adopting this amendment or coming back at Third Reading with the Government’s own. That would not only hold the Government in good stead but improve the governance of our parliamentary system and of government.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Norton for moving his new clause, which would require the Government to publish alongside any statement on a matter of policy, legislation or a contract or grant records of any oral or written communication directed to a Minister, the Minister’s Parliamentary Private Secretary or special adviser, and any departmental civil servants concerned with that matter. This is an issue in which my noble friend has long taken an interest. His amendment would also provide exemptions from the requirement to publish for commercial or security-sensitive material.
I do not think that this is a simple proposition, although I certainly think it is an intriguing one. However, at a time when we seek to ensure more efficient and effective government, one should pause to reflect that a statutory requirement that every oral or written communication received by every civil servant, special adviser, Parliamentary Private Secretary or Minister be recorded, collated and published in parallel with any relevant statement is not as easy and simple as was perhaps suggested.
Not only would the system impose a considerable bureaucratic burden on the public sector but one would wish to consider whether it would lead in turn to an information overload. Publishing information in relation to a very small public policy statement may well have some merit, but the volume of information that the Government would be likely to be required to publish in relation to, let us say, the Budget, the Autumn Statement or the Queen’s Speech could be so overwhelming that any transparency value would be undermined by the inaccessibility and quantity of the information.
The Government’s objective is to provide the public with valuable information which they can utilise to scrutinise our actions and hold us to account. The focus should be on the value of information and the insight it can provide, not on the volume. As I have already indicated, this Government have taken exceptional steps to publicise information about decision-making, and the register is intended to extend that transparency to those who seek to influence decision-makers. It is already standard practice that responses to government consultations are published in full or in summary, and if the public require further information about certain policies or decisions, then they have the right to request that information under the Freedom of Information Act.
I recognise that my noble friend is urging the Government to extend or improve their information publication regime, and I know that this view is shared. However, I hope that the commitments to the improvement of transparency that I made on behalf of the Government during the debate on the first group of amendments will show that not only have we already taken unprecedented steps, but we are furthering them. I recognise and acknowledge that they fall short of what my noble friend is seeking, but I hope he will reflect that to publish the volume which he is suggesting—particularly in circumstances such as the Budget—might not enhance transparency, but could lead to an overload that might not assist those he seeks to help with his amendment. I hope that it will be acknowledged that the Government have already taken steps and are committed to more steps; and that what we are doing will increase the level of transparency more than any previous Administration have done. In these circumstances, I urge my noble friend to withdraw his amendment.
Lord Hardie
My Lords, I seek a point of clarification. In light of the decision of the House to accept the amendment of the noble Lord, Lord Tyler, on special advisers, will the Minister tell the House whether it is the Government’s position that, notwithstanding that decision, the Government have no intention of adding information relative to special advisers’ meetings with lobbyists when the Minister makes his or her return?
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.
“( ) A statutory instrument containing any of the following regulations may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament—
(a) regulations under section 4(5)(a) or 5(4);(b) the first regulations to be made under each of sections 11(3) and 17(3);(c) regulations under this Part which amend or modify the provisions of this Part.”