The ‘Lobbying Bill’ recently introduced to Parliament is designed to deliver on the Coalition Government’s promise to legislate on what David Cameron branded ‘the next political scandal waiting to happen’.
But what will the new legislation mean for the industry, and you as an individual practitioner?
In this article, we bring you right up to date with the Governments proposals on lobbying, highlight the key parts of the Bill, survey the most interesting and relevant reaction and look to what the future might hold.
What’s the latest on the Lobbying Bill?
– Introduced on Wednesday the 17th July 2013, as part of a piece of legislation also addressing ‘third-party’ campaigning and ‘trade-union administration’
– Informed by the Government’s consultation paper on the Bill, published all the way back in January 2012
– Discussed by the responsible Minister Chloe Smith with the Political and Constitutional Reform Committee on Friday 19th July (read on for the cringe inducing details)
– Put down for Second Reading on 3rd September, with Committee stage on 9th, 10th and 11th of September 2013. This will be a Committee of the whole House.
– The Political and Constitutional Reform Committee will be holding an inquiry into the Lobbying Bill over the summer Parliamentary Recess
– The Committee for Standards in Public Life has put out a call for evidence on ‘transparency issues around lobbying, and intend to hold an evidence gathering seminar when Parliament returns after summer to discuss the issues.
In sum, Part 1 of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill 2013 as currently drafted seems likely to fail to achieve the Government’s stated objectives in bringing the proposals forward – to increase transparency.
Why is that…?
Scope of the Lobbying Bill Register
A huge number of those organisations who now carry out what the man in the street would consider lobbying’ activity will not be required to declare that activity under the statutory register, because the Government has chosen to invent a straw man (straw lobbyist?) called a ‘consultant lobbyist’ – more on that later.
In addition there are a number of exemptions from the requirement to register as a ‘consultant lobbyist’, which include those who:
a) ‘…act generally as a representative of persons of a particular class or description’
b) ‘…[carry] on a business which is mainly a non-lobbying business’
So if you work in-house for the Confederation of British Industry or Save the Children, you aren’t a lobbyist.
Depending on how that ‘mainly’ works (more than 50% of turnover? Staff numbers?) you probably also aren’t a lobbyist, according to the Bill, if you work for a large communications agency which happens to draw the majority of its income from ‘non-lobbying business’.
Pardon…? Can that really be right?
Well, yes. MHP, for example, are pretty clear that as currently drafted, they won’t be covered by the Bill.
Campaign group Unlock Democracy argues that eight out of ten lobbyists will not have to comply with the register, while the Political Relations Consultants Association polled its members and found that just 23% of its members expect to be covered on the register as currently drafted.
That means that the coverage of the statutory register will certainly be less than the voluntary registers currently overseen by the Political Relations Consultants Association, the UK Public Affairs Council and the Association of Professional Political Consultants.
As mentioned earlier, as well as applying a ‘mainly’ exemption, Government has also chosen to narrow the scope of the lobbying register by choosing to define a ‘consultant lobbyist’ as someone who ‘…in the course of a business and in return for payment…makes communication’ with:
– Minister of the Crown
– Permanent Secretary
– Cabinet Secretary
– Chief Executive of Her Majesty’s Revenue and Customs
– Chief Medical Officer
– Director of Public Prosecutions
– First Parliamentary Council
– Government Chief Scientific Officer
– Head of the Civil Service
– Prime Ministers Adviser for Europe and Global Issues
The focus on Ministers and the most senior members of the civil service is mirroring the existing requirement to declare meetings under the Ministerial Code.
Chloe Smith at the Political and Constitutional Reform Select Committee
In her deeply uncomfortable appearance before the Political and Constitutional Reform Committee regarding the Bill on Friday 19th July, the responsible Minister Chloe Smith repeatedly referred to the existing Ministerial Code when discussing the narrow scope of the lobbying provisions, noting that the two had to be understood together.
Smith’s response to questions about the scope of the Bill was that there was a ‘specific problem’ being addressed by the Bill, and that Government had yet to hear articulated exactly what problem would be solved by a register with a wider scope.
Sensibly, in response to questions from Paul Flynn MP on those activities which would not be caught by the register, Smith observed that a number of recent ‘lobbying scandals’ were outside of the scope of the Bill, and would, in fact, be dealt with by the Ministerial Code.
Smith said that “we need to keep focused on the problem of who is meeting whom” and argued throughout that this was the only clearly defined problem that had been brought to the attention of Government.
Smith also said that:
“we have taken the decision with this bill not to seek to act as a complete regulator for the industry”
It seems clear, then, that the Government is not really interested in extending substantively existing commitments to transparency, and is defending that position by challenging others to explain what, precisely, the problem is with ‘third-party’ lobbying, beyond the need for a member of the Government knowing which interest group or company they are being lobbied by.
Why should new regulation be introduced when no-one can cogently explain the harm involved?
This seems a reasonable argument from the Government’s point of view, but having raised expectation about the extent of regulation that will be delivered, it will be a challenge for the Government to defend it in the House and in the media.
As any lobbyist can tell you, the vast majority of public affairs work does not occur at the heady heights of an official at the Permanent Secretary level, and it remains an arbitrary decision to regulate contact with Ministers of the Crown, but not, for example, Chairs of Select Committees.
Smith also couldn’t offer an effective answer as to why ‘in-house’ teams including those working at charities were not within the scope of the Bill – in response to a question by Christopher Chope MP on that point, she said that they were not the targets of the Bill:
“…because of the arguments made that they play a welcome part in the political process”
These arguments also apply to ‘third-party’ lobbyists, of course, and the Government’s own consultation paper on lobbying said that:
“Lobbying is a perfectly legitimate activity that has been carried out for many years in many different forums by a wide variety of individuals and groups of all sorts”
The Registrar of Consultant Lobbyists
The Bill will introduce a ‘Registrar of Consultant Lobbyists’, who will have a duty to monitor the register of lobbyists, the power to issue ‘information notices’ to anyone already on the register or to anyone the Registrar has reasonable grounds for believing to be a ‘consultant lobbyist’.
It seems as if a number of the difficult decisions that could have been made on the face of the Bill have been pushed along to the Registrar of Consultant Lobbyists, particularly that:
a) The Registrar may issue guidance on which cases they would regard as being an exception as in Part 1 Schedule 1 of the bill
b) According to Chloe Smith in the Political and Constitutional Reform Select Committee session, it would be for the Registrar to exercise discretion when determining whether due diligence could be used as a defense as set out in Clause 5 had been undertaken
c) It is up to the Registrar to determine what constitutes reasonable grounds for believing someone is a consultant lobbyist
The Registrar of Consultant Lobbyists may end up having to take decisions which will, in effect, answer those questions of definition and proportionality which Chloe Smith and her department seem unable or unwilling to engage with.
What will the consequences of the Lobbying Bill be for me? What’s next?
That’s the million dollar question.
The professional associations which have lobbyists as members (the Association of Professional Political Consultants, the Public Relations Consultants Association and the Chartered Institute of Public Relations) and transparency campaigners are broadly in agreement that the Bill will not deliver on the Government’s stated objectives.
This is not the public affairs industry’s fault, but it certainly is the industry’s problem.
Its interesting to note that the National Council for Voluntary Organisations is going to be setting up its own code of conduct for members.
NCVO were one of the attendees at a meeting between Chloe Smith and stakeholders for the Lobbing Bill that took place in recent weeks, and their decision to move forward with their own code of conduct suggests they do not think the Government will be willing to consider anything more substantive than the register as currently drafted. In an article in PR Week, Chloe Stables from NCVO said:
“This isn’t parallel regulation. But we want to provide a clear standard that charities can promote their adhesion to in order to make clear the high ethical standards by which they work. We’ll be consulting our members and will aim to complete the code later this year”
The Impact Assessment for the Bill puts the annual cost of administering the register at £300,000, excluding any transition costs. At this stage, it is far from clear how many firms that burden will fall on – as there is little clarity about how, precisely, the exclusions in the Bill mentioned earlier will operate.
There is even less clarity with regards to how the Bills regulatory burden might affect the market – if the costs are high, there is every chance that consultancies that are currently members of the voluntary registers might choose to leave.
This could lead to a greater fragmentation of the industry – just the opposite of what the Government seems to want to happen.
What about the effect on the demand for lobbying services? The Lobbying Bill Impact Assessment states that :
“Lack of available substitutes [for organisations that would be considered to be engaging in consultant lobbying by the Bill] makes a decrease in demand less likely…the closest substitute to consultant lobbying would be to set up as an in-house lobbyist…”
Which seems to underline that those drafting the proposals don’t understand how many organisations there are that are engaged in ‘consultant lobbying’ but have a greater income through corporate communications work, for example. It is entirely possible that, if suitably incentivised by costs from the register, those organisations could rearrange their businesses to be ‘mainly’ non-lobbying, yet retaining significant lobbying operations.
Then again, if the statutory register is enacted as currently proposed, it might be possible for organisations who are defined by the Bill as ‘consultant lobbyists’ to argue to potential clients that they have a particular benefit or degree of propriety that others not on the Bill do not – the ‘Kitemark effect’.
In the coming weeks and months, the professional associations who have lobbyists as members will likely continue to seek to clarify the Government’s intentions around the Bill and marshal their arguments for both the Political and Constitutional Reform Committee’s inquiry into the Bill and the Committee for Standards in Public Life’s evidence gathering.
We can also look forward to ‘an unholy row’ in Parliament over the Bill, according to someone who should know.
Check back for updates – we are going to be paying close attention as things develop.
PS – what do you think the public affairs industry should be doing to respond to the Bill? Let us know in the comments!