Chris Whitehouse heads The Whitehouse Consultancy, and is an Isle of Wight councillor.
After years of debate that led to the passing of the Lobbying Non-Party Campaigning and Trade Union Administration Act 2014, guidance recently published by the Registrar of Consultant Lobbyists leaves its interpretation as clear as mud, and heralds a fundamental reduction in transparency.
First, the guidance makes it absolutely clear that it is only representations made by commercial lobbyists to “Government Representatives” that trigger the need for an agency to register a client. It goes on to specify that in accordance with the Act this includes only Government Ministers and Permanent Secretaries (or equivalent). Yet the overwhelming majority of lobbying activity is not targeted directly in the form of communications to or meetings with this select bunch.
Indeed, my own estimate would be that as a commercial lobbyist with a wide range of clients only about two per cent of our activity would be meeting Ministers, and, to be honest, in 30 years of lobbying I’ve never once asked to meet a Permanent Secretary or written to one that I can recall. To limit the scope of regulated activity so narrowly is to leave out communications with members of either House of Parliament, with civil servants who are actually dealing with policy development and formulation, local Government, statutory agencies, the media, think tanks, and, of course, the institutions of the European Union which have such a major influence on our laws and regulatory environment.
Second, the guidance confirms that it is only communications that are “personally” made or meetings that are “personally” attended which trigger a need for registration. This is fundamentally to misunderstand the role of a public affairs consultant. Yes, there are occasions when the agency itself might approach a Minister on behalf of a client, but such occasions are extremely rare, not least because Ministers do not welcome such approaches; they are much more likely to engage constructively with representations directly from a senior figure within the client organisation itself.
So much of an agency’s work is spent advising clients on the timing, tone and content of representations to civil servants, Parliamentarians, Ministers etc; but those representations are definitely not in most cases made “personally” by the agency. They are made “personally” by the client who would not have to record them because in most cases those representations would fall outside the tests of who is a commercial lobbyist (such activity being in fact incidental to the main activity of the client).
The practical effect of these two failures at the heart of the legislation is that an agency such as mine, which has for 15 years publicly declared all its clients in the interests of openness and transparency, would find that instead of the 50 or so we currently list, in any quarter we might be listing only half a dozen, and those would come and go from the register depending on whether we had actually approached or met with a Minister in that particular period. This is clearly a nonsense.
The public demand was for clarity about who is lobbying whom, and on whose behalf. This legislation delivers a massive reduction in the requirement to supply such information. Furthermore, like many responsible agencies, we have always erred on the side of caution in declaring our clients; we have always publicly listed them all so as to avoid any suggestion that we might be arguing a client has hired us only for “media relations” or “public affairs” rather than lobbying. If our intention is to influence publicly policy or practice, then we have always been content, indeed keen, to make that clear.
Under the new legislation it would be unlawful for us to list all our clients in the new Register and we would face severe penalties for doing so.
This legislation, as I have consistently argued, is a dogs’ dinner which is contrary to the public interest by reducing transparency dramatically. Its implementation should be suspended forthwith and it should be subject to thorough review as a matter of priority after the General Election.