Written evidence from the Registrar of Consultant Lobbyists (LOB17)
Public Administration and Constitutional Affairs Committee
Lobbying and Influence: post-legislative scrutiny of the Lobbying Act 2014 and related matters inquiry
1 Introduction
As Registrar of Consultant Lobbyists, I am an independent statutory office holder appointed under the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 (‘the Act’). I have been Registrar since September 2018.
I am responsible for publishing and maintaining the Register of consultant lobbyists in order to ensure that there is transparency in the work of consultant lobbyists in their engagement with ministers and permanent secretaries on behalf of clients. My duties under the Act also include providing formal guidance on the operation of the Act and ensuring compliance.
I provided written evidence to PACAC’s Inquiry into Lobbying and Influence: post-legislative scrutiny of the Lobbying Act 2014 and related matters on 14 September 2022 and gave oral evidence to the Committee on 15 November 2022.
In July 2023 the Government set out its position on the Lobbying Act and related matters in its response to PACAC and reports from the Committee on Standards in Public Life and Nigel Boardman.
The policy objective of the 2014 Act was to provide transparency in the lobbying of ministers and senior officials by third party consultants. My comments on the Government’s response are provided in the context of that policy objective and my five years’ experience of applying and enforcing the lobbying provisions of the Act.
2 The Government’s response to CSPL, PACAC, Boardman
Part 4 of the Government’s response details The Government’s Approach to Reforming the Register of Consultant Lobbyists. I welcome the commitment to “accepting recommendations to improve the operation of the Register where they fit with its overall purpose.” However, I consider that the response misses a number of significant opportunities to support effective transparency in consultant lobbying.
“Widening the Application of Transparency Obligations to Communications with Senior Civil Servants and Special Advisers” (Para 4.1)
CSPL recommended that consultant lobbyists should, in addition to their current obligations, have to register communications with special advisers, directors general and directors. I have long advocated the value of making communications with special advisers registrable and therefore welcome the Government accepting this ‘in principle’.
However, the Government’s response mentions the need for primary legislation to make this change. This is only partly correct because making communications with special advisers registrable can be achieved by regulation (section 2(5) of the Act). Given the inevitable very long delay in achieving primary legislation, I urge the Government to act as a matter of urgency through secondary legislation in relation to special advisers.
“The Format of the Register’s Transparency Returns” (Para 4.2)
Both CSPL and Boardman recommended extending the information that consultant lobbyists must declare. I have previously called for consultant lobbyists’ quarterly returns to include details of who was lobbied, the subject matter, the date and the medium.
The Government has agreed in principle that quarterly information returns should include the subject matter of the lobbying. However, it has rejected including details of the person being lobbied and the date.
Even with the proposed change, the Register would say only: “In the previous quarter, lobbyist X communicated on behalf of client A on subject matter B.” Failing to include details of the person being lobbied severely damages the transparency and value of the Register and it is hard to understand the objection to making this simple change.
The Government’s response rejects including “specific individual instances of lobbying (date and recipient), as this would change the nature of the Register from a list of consultant lobbyists' clients to a list of individual instances of lobbying. Individual instances of lobbying are recorded in the departmental transparency returns, against which the Register of Consultant Lobbyists can be cross-referenced.” Unfortunately, this is unrealistic in practice as a result of the scant and different information in the two data sets. If the Register only lists the client and subject matter it would be practically impossible to cross-reference this with departmental transparency returns.
It would significantly assist transparency and compliance if Registrants’ quarterly returns included:
“Expanding the Definition of a Consultant Lobbyist” (Para 4.3)
The Government has rejected the Boardman Report’s recommendation to remove or curtail the exemption for ‘incidental lobbying’. The exception is set out in schedule 1, part 1, section 1 of the Act:
A person does not, by reason of making a communication, carry on the business of consultant lobbying if: (a) the person carries on a business which consists mainly of non-lobbying activities, and (b) the making of the communication is incidental to the carrying on of those activities.
Both the policy intention and the meaning of this provision are unclear and it is the most contentious, vague and problematic drafting in the legislation. This undermines the operation of the Act and unfortunately the Government’s response does not provide any further clarity.
The response mentions my formal guidance on the incidental exception. The guidance goes as far as I am able to provide clarity, but it is still complex and unclear because the founding legislation is unclear. I urge the Government to form a view on the policy intention behind the incidental exception and then express this clearly and unequivocally in the Act.
Boardman recommends removing the exemption for those not registered for VAT from the requirements of the Act. The Government’s response rejects this proposal.
The current VAT test exempts foreign businesses from the Act as well as UK lobbyists with a turnover below £85,000, but who may be undertaking significant lobbying
The Act’s transparency purposes would be supported by the removal of the VAT registration test, possibly replaced by a different de-minimis test.
3 Other matters
In my previous evidence (sections 9 and 10) I detailed other issues relating to the operation of the Act which have not been addressed in the Government’s response. These would benefit from early review by the Government:
4 Means of communication
Part 3 of the Government’s response discusses including WhatsApp, Zoom and similar digital media in departmental transparency returns.
For clarity, it is worth pointing out that my formal guidance issued under the Act provides an inclusive definition of the communications that must be declared by consultant lobbyists (if all the other conditions for consultant lobbying are met):
2.3.1 Making communications personally means communicating directly and by any means with a UK Government Minister or Permanent Secretary (or equivalent)* this includes in person, in writing or digitally (including online meetings, telephone calls, emails and text messages on any platform).
5 Registrant fee levels
The fees paid by registered consultant lobbyists are set by ministers. These have been a flat rate of £1000 a year since 2016.
This question of the inequity of very small businesses paying the same fee as very large ones was raised in the minister’s stakeholder round tables at the start of the post-legislative scrutiny in 2021. My Office continues to hear concerns about this from smaller registrants.
My Office would be willing and able to administer a banded fee-structure if ministers felt this to be appropriate.
August 2023