In the near future, the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill - ("Lobbying Bill") - will receive Royal Assent. The Bill:
- introduces a statutory register of consultant lobbyists and establishes a Registrar to enforce the registration requirements
- regulates more closely election campaign spending by those not standing for election or registered as political parties
- strengthens the legal requirements placed on trade unions in relation to their obligation to keep their list of members up to date.
with fears that it will silence legitimate campaigners whilst leaving politicians open to "back door" influences. The Commission on Civil Society and Democratic Engagement sees it as an unacceptable threat to democracy and freedom of speech. The Spectator - Lobbying Bill is bad for Liberty - offers a topical example of how the Bill might, in an election year, work against those campaigners:
"The burden would fall disproportionately on grass-roots campaigners and organisations with a legitimate story to tell about their communities or on the issues of the day. Consider the example of anti-HS2 campaigners. Were they to run campaigns against the high speed railway in the same constituency as a pro-HS2 parliamentary candidate during an election year, according to the bill, their spending would be ‘political’ in nature and therefore capped at £9,750 (with the risk of criminal sanctions if they were to spend more). The parliamentary candidate, on the other hand, might call to their aid the Government, its press and policy machine, which, if reports are to be believed, have so far spent £1.2 million on pro-HS2 PR alone."
Spectator 15th January 2014
Another possible example might arise if a political party campaigns for an electoral mandate on withdrawal from the European Convention on Human Rights. (This is not as unlikely as it may appear)! Those who support the opposite position may well find themselves at an enormous disadvantage.
Explanatory Notes on the Bill are available and there was a White Paper (January 2012: Cm 8233) which pointed out 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 but, where lobbying is not transparent, it can undermine public confidence in the decision-making process and its results. The purpose of the UK register is to increase transparency by making available to the public, to decision-makers and to other interested parties authoritative and easily-accessible information about who is lobbying and for whom. The Register would not be a complete regulator of the "lobbying industry".
A useful explanation of the Lobbying aspects of the Bill may be seen on the Electoral Commission website.
Open Democracy argues that the "gagging law" is still a dangerous shambles. They say:
In February 2010, just months before the general election, David Cameron made a speech in which warned that lobbying “is the next big scandal waiting to happen”. He said, “It’s an issue that . . . has tainted our politics for too long, an issue that exposes the far-too-cosy relationship between politics, government, business and money.” He spoke about shining “the light of transparency” on lobbying so that politics “comes clean about who is buying power and influence.”
The bill, as drafted, shines only dim light on less than 80 per cent of the UK’s £2 billion commercial lobbying industry. It seeks to introduce a register of a small minority of lobbyists – those who lobby on behalf of clients - so it would really only cover those who work for an agency or work freelance and not the “in-house” lobbyists who are employed directly by companies and organisations. The register, condemned by Labour peer Dianne Hayter as a “skeleton register”, therefore misses out the vast mass of in-house lobbying with which government departments routinely engage – by, for example, the formidable bankers and insurance associations, the ABI and BBA, the pharmaceutical, defence, tobacco, processed food and sugar manufacturers, the trade associations, the media, law and accountancy firms, HS2, Heathrow, etc.
Worse still, the register would only cover those who lobby ministers and Permanent Secretaries, a tiny proportion of lobbying activity. Most contacts are with mid-ranking departmental officials, special advisers, MPs and peers. Moreover, the bill merely requires registered lobbyists to list their clients, but not to say who is being lobbied about what, yet only by revealing the lobbyists’ dealings with ministers, civil servants and parliamentarians can the process be made transparent and policy-makers be held to account.
Stuart Weir 6th November 2013
The Bill was considered by the Political and Constitutional Reform Committee which reported in July 2012. It took a year for the government to publish its response to the committee's report. The Committee's report stated:
The Committee's Report Introducing a statutory register of lobbyists was published at 00.01am on Friday 13 July 2012.
Further written evidence received submitted by the Taxpayers' Alliance was received and published after the report was published.
This was published on Friday 19 July 2013. Pdf version
“The Committee’s report found that the Government’s proposals would only scratch the surface when it came to tackling public concern about undue access and influence over policy making, and would be unlikely to prevent lobbying from becoming ‘the next big political scandal.’
“The report concluded that the Government’s proposal for a register that included only third-party lobbyists would do little to improve transparency about who is lobbying whom, because meetings involving such lobbyists constitute only a small part of the lobbying industry.
“The Committee called on the Government to rethink their proposals, and in particular their definition of what constitutes a lobbyist. I again urge the Government to consider carefully the Committee’s recommendations. I look forward to receiving a response from the Government.”
In September 2013, Civil Society wrote of deficiencies in the Bill.
Part 1 of the bill has the admirable aim of introducing greater transparency into the political lobbying activity, by introducing a new register of lobbyists. But the bill's tight definition of the "consultant lobbyists" who will be required to register will fail to catch all but a fraction of professional lobbyists. In-house lobbyists are not required to register and the new transparency requirements do not apply to lobbying activity which falls short of direct personal communication with a government minister or permanent secretary of the civil service.
At the same time, the uncertainty of rules around non-party campaigning under Part 2 of the bill poses a serious threat to the campaigning activities of charities and other civil society organisations and may even breach the right to freedom of expression under Article 10 of the Human Rights Act. The new rules substantially increase the risk of charities and issue-based campaigning organisations being required to register with the Electoral Commission and impose complex and bureaucratic new requirements for apportioning and accounting for expenditure incurred by those that do have to register.
Civil Society have also linked to an opinion prepared by Helen Mountfield QC on Part 2 of the Bill - Legal adviser backs up NCVO Lobbying Bill warning
Mountfield wrote in an opinion letter: “Uncertainty about what the law requires is likely to have a chilling effect on freedom of expression, putting small organisations and their trustees and directors in fear of criminal penalty if they speak out on matters of public interest and concern.”
“The proposals are likely to impose extensive and expensive audit and recording requirements on charities and community groups in relation to a wide range of activities. Charities may even have to account to the Electoral Commission for volunteers’ time.”
The QC from Matrix Chambers added that the legislation may even fall foul of freedom-of-expression rights. Her full opinion is available here.