Chris Whitehouse is an Isle of Wight councillor and Chairman of The Whitehouse Consultancy.
I predicted last year on this site that the new statutory register of consultant lobbyists would lead to a reduction, not an increase, in transparency; and so it has come to pass.
By requiring only the registration of clients on whose behalf representations have been made directly to a Minister or a very senior civil servant, the rules see a typical medium-sized agency declaring only a dozen or so clients, whereas previously they would have declared 50 or more clients or campaign funders for whom a wide range of public affairs work was being done. Indeed, were agencies to list all their current clients on this statutory register, they could be prosecuted and fined unless they could prove that a Minister had been approached. This is madness.
As many readers – MPs, peers, councillors, SpAds, civil servants, think tank workers and mayors – know, lobbying is very widespread and generally contributes to a healthy exchange of ideas and more informed policy development.
The irony is that when David Cameron warned in 2010 that lobbying risked being the next “big scandal”;,he was looking at the behavior of Members of Parliament, rather than the lobbying industry (in which he was formerly an active participant) – and he called for wider and deeper engagement so that legislation was not made by an “elite” in the Westminster bubble.
Since that prescient warning, there have indeed been lobbying “scandals”, and in almost all of them the culprits were Members of the House of Commons and/or The House of Lords. So difficult has it been for investigative journalists to “nail” a real lobbyist that most of the reported scandals were set-ups with journalists masquerading as lobbyists because they could not find an agency that would, in fact, behave in the manner necessary to tempt MPs or Peers to act unethically or illegally.
Yet, nevertheless, the Coalition Government pushed on with the Lobbying Non-Party Campaigning and Trade Union Administration Act 2014 to impose yet another layer of regulation on one section of the lobbying industry. Yes, on one section only – because whole areas of lobbying continue to be carried out by lawyers, management consultants, accountants and other agencies which are more difficult to identify and bring within the purview of the Office of the Registrar of Consultant Lobbyists.
Recently, three agencies were served Civil Penalty Notices by the Registrar requiring them to pay fines – not for misbehavior in terms of their lobbying activity, but because of a delay in payment of the Registrar’s own fees. Yes, like China where the family of the executed may be sent a bill for the bullets used to kill their loved one, the lobbyists have to fund this new tier of bureaucracy. Whilst fees should always be paid on time, there are sometimes, in businesses, mismatches between aspiration and delivery in administration, and there are sometimes mitigating circumstances when, for example, a key player may be absent due to illness. These things happen in life.
It is particularly challenging to comply with the new regime because many agencies choose voluntarily to remain members of professional bodies such as the Association of Professional Political Consultants and the Public Relations Consultants Association which maintain registers of all the agencies’ clients. So for responsible, ethical agencies the information is and was previously in the public domain, and the new regime simply confuses and reduces transparency.
As it is the responsible agencies that are most visible to the Registrar, it is upon them that most attention is focused. So the practical effect of the legislation has been to shift the focus of attention from MPs and Peers, largely to ignore the under-the-radar lobbyists, and to bear down on that section of the industry that was already acting responsibly.
This is unfortunate, because ethical lobbying remains a pre-requisite of healthy policy development. Good lobbying is about a dialogue between a range of stakeholders and decision-makers, so that all relevant information about the impact of a measure is assessed before a final option is chosen.
The decision to withdraw from the European Union makes it vital for British businesses, trade associations and campaigning groups to step up their lobbying activity. All such organisations should formally review their operation to identify what outcomes in the Brexit process will maximize their opportunities and minimise the threats. If individual organisations don’t do this for themselves and share that information in the right way, at the right time, and with the right policy makers, they cannot complain if their interests are overlooked.
Following the implementation of Brexit, those same organisations have two major areas in which they must continue to engage.
First, they must ensure that the national rules and regulations which the United Kingdom brings in help not hinder them in achieving their goals. Indeed, in the bonfire of the regulations which some have promised (but of the prospects for which your author remains sceptical) there may be some regulations that organisations wish to save to protect their own interests.
Second, the European Union will remain a major market for British business, which will need to up its game and be much more sophisticated than it has been. Business needs new ways of doing things which, for many, will mean taking professional advice about the most effective way to engage with that EU policy-making process. We cannot simply stand on the boundary and shout: we will have to find more subtle and sophisticated ways of ensuring that British business is on the field of play, driving forward its own objectives.
The lobbying industry is also anticipating increased demand from the United States of America, where lobbying is a well-established industry, and whose own businesses will want to engage much more with the British Government than they have in the past. They which will need expert advice on engaging with what has to most US businesses been the opaque and misunderstood nature of the European Union.
So at a time when lobbying has never been more vital to British business interests; and after a lengthy period now in which genuine lobbying agencies have not created any scandals, it is being over-regulated and loaded with administrative burdens and compliance costs.
None of this is to criticise the Registrar who, with a limited budget and a very small staff, must implement the legislation as it is actually written (not as any sane person might wish it had been written!) Responsibility for this dogs-dinner, if that’s not too insulting to canine cuisine, lies not with the Registrar but with the Coalition Government and with Parliament, which used this legislation to deflect attention from its members’ behavior and created a solution that is looking (in the wrong places) for a problem.
It would be naïve to believe that, having passed this legislation, government will have any appetite for reviewing it. So as one whose career has been built on the principles of openness and transparency, your author will tuck into his dog’s dinner with relish, seeking to comply with both the spirit and the letter of the regulation – licking that bowl clean despite its bitter taste!