Lobbying and Influence: post-legislative scrutiny of the Lobbying Act 2014 and related matters

If transparency is the Government’s main mechanism for ensuring the integrity of the process by which Government is lobbied, clearly the information it releases on who has been lobbied by whom should be as accessible and easy to navigate as possible. A single, integrated platform that includes the transparency data for the whole of government is an important step towards that. We welcome the Government’s commitment to producing an integrated platform for transparency data. We will be watching closely the system’s progress towards completion and its impact once it is operational. Given we are in the final months of this Parliament, it will be the responsibility of our successor committee to consider the impact of the integrated platform and we encourage it do so.

If the Government’s transparency releases are to provide the public assurance they are designed to, timeliness is important. Yet with quarterly publication, the information may be several months old by the time it is released. We accept the Government’s case that a move to monthly publication is dependent on the implementation of the integrated transparency platform. The Government has said it will consider, though did not commit to, more frequent publication once the integrated transparency platform is operational. We also acknowledge the Government’s sensible caution about when this integrated transparency platform will be ready. However, once the platform is operational, we expect the Government to move swiftly from quarterly to monthly transparency publication.

The Government’s proposed extension of the transparency releases to include Directors General and other key posts is welcome. However, we remain unconvinced by the Government’s defence of the current level of disclosure of Spads’ meetings. It is true that, as the Government argues, Spads frequently play a significant role in managing the media. Yet it is also clear that they often play a significant role in formulating policy and have a closeness to their Minister that few officials have. That any gifts or hospitality they receive are included in the transparency releases is clear acknowledgement of that influence; therefore to maintain that their meetings should not be disclosed, beyond those with very senior media figures, appears inconsistent. Moreover, perception is key in establishing and maintaining trust in the integrity of the decision-making process. The evidence we have received suggests that there is genuine concern about the continued omission of Spads’ meetings from the transparency releases and references to the applicability of the Carltona Principle manifestly do not address this.

Despite the Government’s argument to the contrary, the omission of Spads’ meetings, other than those with senior media figures, from the departmental transparency releases is clearly anomalous. Furthermore, it undermines public confidence in the integrity of the lobbying process. The Government should include Spads’ meetings in the departmental transparency releases on the same basis as those of Ministers and senior civil servants.

We would encourage those in positions in which they may be subject to lobbying, such as shadow ministers and other frontbenchers from non-government parties, to routinely publish details of the meetings they hold with outside bodies on their webpages in a timely manner. Alternatively, the House of Commons could resolve to require that MPs, or those who hold certain positions within their parties, publish details of their meetings with lobbyists.

For the transparency declarations to be “relevant and instructive”, we would expect the descriptions of the meetings to include, at a minimum, details of the policy area and any specific regulations, legislation, or funding under discussion.

We recommend that the introduction of the integrated transparency platform, with a single transparency publication for the whole of government, be accompanied by the introduction of a single point of accountability for the quality of that publication. There should be a single Senior Responsible Owner for transparency publication whose role is to ensure the information contained is both comprehensive and timely. The Head of the Propriety and Ethics Team in the Cabinet Office, or someone of at least equivalent seniority, should be the Senior Responsible Owner for the integrated transparency platform.

If WhatsApp and other Non-Corporate Communication Channels (“NCCCs”) are to be used in government and, in particular, if they are to be used to communicate with third parties, then they should be subject to the same disclosure regime as other forms of contact. Where exchanges by means of NCCCs are in place of a face-to-face meeting or prompt significant consideration in government, they warrant inclusion in the government transparency releases. If an appropriate transparency regime cannot be found that can command public confidence, which we consider the current arrangements do not, the use of any NCCCs should be blocked on official devices.

To embark on a process of post-legislative scrutiny whilst ruling out changes to the legislation concerned, even where the Government acknowledges such changes are required, risks negating the validity of the whole exercise. Regardless of any non- legislative improvements that result from the process, and no matter how welcome they might be, it is contrary to the principles of effective government to conduct post- legislative scrutiny without being open to the possibility of its outcome requiring legislative change.

The purpose of post-legislative scrutiny is to judge the extent to which legislation is achieving its stated aims, rather than to revisit those aims and to reopen debates that should have been had at second reading. To expand the Register of Consultant Lobbyists to encompass all those conducting lobbying activity would be to fundamentally change the purpose of the Act from one designed to address the gap in the Government’s transparency releases created by the use of consultant lobbyists to one designed to duplicate or replace them. It would require the Office of the Registrar for Consultant Lobbyists to be replaced with a new body with a very different remit and powers. As such, in our view it would be beyond the scope of post-legislative scrutiny and this inquiry.

We recognise the level of frustration with the narrow scope of the Act. However, that frustration appears to be in large part a reaction to the inadequacies of the Government’s own transparency releases. The Government has committed to improve these. Given a General Election will take place within months of the publication of this report, it will be our successor Committee that will be in a position to evaluate how far these changes have addressed the concerns we have heard. We would encourage it to do so. Should the Government’s transparency releases continue to prove inadequate, the case for a statutory register of all lobbying activity should be reconsidered.

The current requirement for consultant lobbyists only to declare in the Register the identity of their clients is inadequate. We do not recommend including, as some registers require, the disclosure of the financial details of lobbying contracts. However, the purpose of the Register is to fill the gap in the Government transparency releases created by the use of hired consultant lobbyists. The amount of information that should be included in declarations in the Register of Consultant Lobbyists should therefore be sensibly proportionate to its purpose, and, as such, should reflect the information contained in the transparency releases. The Register should contain not only a list of clients, as it currently does, but also the subject of lobbying, dates of lobbying, and the medium through which lobbying took place.

The Register currently requires declarations of contact made by consultant lobbyists with Ministers and Permanent Secretaries. In line with the Government’s proposed extension of the transparency releases to include Directors General, Departmental Financial and Commercial Directors, and Senior Responsible Owners for Major Projects, as well as our recommendation that they include Ministerial Special Advisers, declarations in the Register should be extended to include lobbying of these groups.

The desire to avoid onerous bureaucratic burdens on small or sole operator lobbyists is laudable. However, it is important that concerns about regulatory burden, which will already be lower on smaller operations undertaking less work, do not undermine the primary purpose of the Act, which is to ensure transparency in consultant lobbying. There are other ways of mitigating the regulatory burden on small firms that do not present such a sizeable loophole to allow lobbying to go undisclosed. To that end, the exemption from registration for consultant lobbyists who do not pay VAT should be removed.

As with the VAT exemption, the Government stresses the importance of avoiding unnecessary bureaucracy in justifying the exemption for ‘incidental lobbying’. However, the purpose of the incidental exemption is not made clear in the Act. The Registrar’s guidance has added some clarity but he himself emphasised that this is still insufficient. If the Government maintains that there is a need for the incidental exemption, it must amend the Act to clarify its purpose and remove any ambiguity about what that is and when it can apply.

In rejecting proposals for a statutory code of conduct governing the way in which lobbyists carry out their activities, the Government suggested that the existence of the established industry codes of conduct made it unnecessary. In order to encourage lobbyists—both consultant and in-house—to subscribe to one of the current industry codes of conduct, Ministers should commit to meet only with lobbyists who have done Lobbying and Infuencee post-legislative scrutiny of the Lobbying Act 2014 and related matters 29 so. Likewise, officials covered by the departmental transparency releases should only meet with lobbyists who are included in one of the established industry registers and subscribe to their codes of conduct.

The lack of provision to cover for the temporary absence of the Registrar—through illness or because they are conflicted, for example—is another example of where there is a clear need for the Act to be amended but which the Government has ruled out for the foreseeable future. We are relieved that the Government is aware of the issue and is making contingency plans. However, by the Minister’s admission, these will not be an adequate substitute for amending the Act which we believe should be taken forward as a priority.