The placebo bill

Written by Winnie Agbonlahor on 26 September 2013 in Feature
Feature

To cure the lobbying industry of all its scandals, the government has prescribed a bill. But as Winnie Agbonlahor finds, the bill as it stands will have little impact on most lobbyists – and is thus unlikely to heal the patient

When doctors prescribe their patients pills made of sugar and tell them they’re real medicine, the patients often see their health improve; but if they know the truth, the pills prove ineffective. And critics of the government’s new lobbying bill see it as a placebo whose cover’s been blown: the bill will do little to control the public affairs industry, and everyone knows that.

With the stated aim of making the process of lobbying completely transparent, government earlier this year presented to Parliament the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill. The bill seeks to establish a statutory register of lobbyists, and sets out which meetings with ministers and officials must be declared by lobbyists – namely, all ministers and permanent secretaries.

It has, however, been criticised by a wide range of groups: lobbyists themselves, charities, trade unions, campaign groups and MPs. The most contentious issue has been that of scope: critics of the bill say its current definition fails to capture the vast majority of professional lobbyists, because it covers only consultant lobbyists – agencies which lobby on others’ behalf – and excludes those representing their own employers (in-house lobbyists). Graham Allen, chair of the Commons’ Political and Constitutional Reform Committee (PCRC), has said that only five per cent of those trying to influence policies will be covered. He compares the bill to a “Dangerous Dogs Act that only refers to cats”.

Allen’s view is backed by Iain Anderson, deputy chair of the Association of Professional Political Consultants (APPC), which represents 80 organisations including consultant lobbyists. He says the “vast majority of meetings taking place in Westminster and Whitehall are not with consultant lobbying firms, but with in-house lobbyists, law firms, accountancy firms or third sector agencies”. In 2012, he says, the business department’s ministers, special advisers and permanent secretary had 988 external meetings, of which just two involved consultant lobbyists. So the new law is “not going to be a very meaningful transparent register in terms of capturing all the lobbying that’s actually taking place”. He adds that “government is refusing to bend on what we would like to see: every professional lobbyist captured by a statutory register.”

The Cabinet Office (CO) has offered an explanation. It says current rules already require departments to publish details every quarter about ministerial meetings with external bodies, including in-house lobbyists. And as the Lib Dem deputy leader of the House of Commons Tom Brake told the BBC’s Daily Politics show earlier this month, government does not “want to duplicate things that are already done”. The same rules already require consultant lobbyist meetings to be declared, but under the new bill they’ll have to explain what topics were discussed.

There are two problems with this approach: the first, Anderson explains, is that departments are “rather bad” at declaring these meetings on time – or sometimes, at all. “Some departments are not reporting all the meetings ministers are having as part of the reporting cycle, and a lot of them are very late,” he tells CSW. In response, the CO insists that all information is available on gov.uk, and says it’s working with departments to ensure timely publication.

The second issue is set out by Tom Hawkins, policy manager at the Public Relations Consultants Association, which represents 89 lobbying organisations. While the bill covers meetings with ministers, lobbying is “so much more than just meeting a minister,” he says, adding: “You can conduct an entire lobbying campaign without meeting a minister, so [the current bill] just doesn’t tell the full story”.

The CO argues that the bill increases transparency by expanding the reporting requirement to cover meetings with permanent secretaries. But Hawkins says that consultant agencies, which devise strategies for influencing government, would “absolutely not” target perm secs. Instead, the pressure points are “much lower down in the ranks”: those civil servants who “deal with the policy on a day-to-day basis, who know the policy inside-out and understand the industry”. The only lobbyists who “might” seek to get meetings with perm secs are in-house staff, he says. But, of course, they are not captured in this proposed legislation.

Like most civil servants, special advisers aren’t covered in the bill, Hawkins says, yet they are “massively important when it comes to influencing ministers”. His view echoes that of Allen, who earlier this month called for the bill to cover meetings with special advisers. Asked by CSW whether this would add a layer of bureaucracy, he said: “I’m sure you can come up with something sensible to capture meetings with people who have a political interest in a particular policy, and make sure that they have to write that down. We know [lobbying] when we see it”.

The CO argues that the important people to cover are the “actual decision-makers”, which it defines as perm secs: they “run departments and ultimately make decisions”, a spokesperson tells CSW. And government clearly wants to stick on this point; where it has promised a re-think is on part two of the bill, which concerns non-party campaigning.

The draft bill limits to £390,000 the amount groups such as charities and trade unions can spend in an election year “for election purposes”. However, the definition of “election purposes” is so loose that it could cover any work that might affect an election outcome; and the definition of spending is so loose that it could cover much of an organisation’s costs, barring many bodies from doing anything that might influence an election.

After a public outcry from charities and campaign groups, Andrew Lansley, the leader of the Commons, said amendments to part two will be published by 1 October. Lansley said he has “heard what charities and voluntary organisations had to say,” and will meet their concerns “while ensuring that the bill still regulates effectively when organisations directly try to promote election candidates and parties”. Sir Stuart Etherington, chief executive of the National Council for Voluntary Organisations, who’d criticised the law’s “complexity” and “lack of clarity”, has welcomed the pledge. A spokesman for the Lib Dems told CSW that the party had persuaded Lansley to make this concession.

The Lib Dems will probably be less keen to push back on part three of the bill, which introduces new statutory obligations on every trade union to compile and maintain a register of their members. Any union with more than 10,000 members will have to appoint an assurer to supply an annual membership audit certificate to the business department’s Certification Office.

Naomi Cooke, assistant general secretary of the FDA union, tells CSW that the assurer would be permitted to disclose the register of members’ names and addresses to the Certification Office without the knowledge or consent of the union or its members – something she describes as “extremely worrying”. She wrote in the union’s official response to the bill: “It is widely recognised that the issue of privacy and trade union membership is an area of unique sensitivity. This is particularly so when the employer and the state are one and the same. This is the case for FDA members. The FDA is deeply concerned that the proposals as currently set out have a very real potential to jeopardise the security of FDA membership records.” But a business department spokesperson says the “aim of the provisions in the bill is to give union members and the public greater assurance that union membership registers are up to date” – and the Lib Dems have indicated their support for part three, making this another area that’s likely to end up as law.

How could one bill upset so many people? Allen blames a lack of consultation, and claims the bill was “rushed through to Parliament just before recess”. Hawkins agrees, calling it a “case study of how bad legislation can be if government doesn’t consult properly with the industry”. He adds: “While [government] wants to increase transparency, they don’t want to upset us too much; but unfortunately, they’ve done that.” Lobbyists, he says, want the register to be comprehensive in order to improve the industry’s reputation. “We have nothing to fear from the public knowing that we’re lobbying,” he says. “If anything, it can help us. But we worry that if the register introduced by the government covers hardly any lobbyists, it will reflect poorly on the industry.”

The CO says it has conducted a proper consultation, in January last year. A total of 260 people responded and, according to the CO’s consultation report, the “prevalent theme to emerge from the responses was that the proposed definition for lobbyist was narrow and needed further clarity”. In fact, “most felt that lobbying activity was the same whether the lobbyist was in-house or acting for a third party”, the report continues. Only 19 respondents felt the government’s proposed definition was preferable.

Given that government has ignored the findings of its own consultation, it’s no surprise that this bill has proved unpopular. However, whilst ministers have offered some concessions on part two, they appear to be digging in their heels on the definition of lobbyists and union registration. So if the bill survives as it currently stands, it’s unlikely to have any impact on the majority of lobbying. That will disappoint many, who’ve waited three years for David Cameron to come good on his promise to regulate the lobbying industry.

Ultimately, the final outcome is in the hands of the Lib Dems, who have declared their overall support. This attempt by government to be seen to reform the lobbying industry may be a placebo, but it appears to be a pill that the Lib Dems are happy to swallow.

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