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Consultant lobbyists

This section contains:

Introduction
Prohibition on consultant lobbying unless registered
Consultant lobbyist
Registrar of Consultant Lobbyists
Enforcement

Introduction

In May 2010, the Coalition programme for government committed the Government to regulate lobbying through introducing a statutory register of lobbyists and ensuring greater transparency. The Government’s initial proposals on this topic were published in January 2012.

The Government’s main purpose of the provisions on lobbying is to ensure that it is clear whose interests are being represented by ‘consultant lobbyists’ who make representations to Government. The Act is intended to enhance transparency by requiring consultant lobbyists to disclose the names of their clients on a publicly available register and to update those details on a quarterly basis. Registering lobbyists will also be required to disclose whether or not they subscribe to a publicly available code of conduct and, if so, where that code can be accessed.

The register is intended to complement the existing transparency regime, whereby Government ministers and permanent secretaries of Government departments proactively disclose information about who they meet on a quarterly basis. The register will be maintained by the Registrar of Consultant Lobbyists, who will be independent from the lobbying industry and Government.

In relation to campaigning by people who are not candidates or organisations who are not political parties, the Act changes the level of spending at which they are required to register with the Electoral Commission, and changes the limits up to which such people or organisations can spend in an election campaign.

Part 3 of the Act introduces new statutory obligations on every trade union which is subject to the duty under section 24 of the Trade Union and Labour Relations (Consolidation) Act 1992 to compile and maintain a register of their members and to keep this register accurate and up to date. These trade unions will be required to supply an annual membership audit certificate to the Certification Officer in respect of this requirement.

On 4 June 2013, the Government announced its intention to bring forward legislation to introduce a statutory register of lobbyists, and that a Bill would also include measures regarding the appropriate assurance and certification of trade unions’ registers of members.

The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 was enacted on 30 January 2014. The Act makes provision in three areas:

•It establishes a register of consultant lobbyists and a Registrar of consultant lobbyists to supervise and enforce the registration requirements.

•It changes the legal requirements for people or organisations who campaign in relation to elections but are not standing as candidates or as a registered political party.

•It changes the legal requirements in relation to trade unions’ obligations to keep their list of members up to date.

Comment: there has been criticism of whether TLA 2014 will be effective in its objectives, and whether it will unduly restrict campaign groups. The Labour party has stated its intention to repeal the act were the party to be in government.

The following part of this section deals with the provisions relating to ‘consultant lobbyists’

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Prohibition on consultant lobbying unless registered

The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (TLA 2014) provides that a person must not carry on the business of consultant lobbying unless the person is entered in the register of consultant lobbyists. [TLA 2014 s.1]

The Act will come into force once the necessary commencement orders are made.

Consultant lobbyist

Subject to certain exceptions, a ‘consultant lobbyist’ is a person carries on the business of consultant lobbying if:

  • in the course of a business and in return for payment, the person makes certain communications to government [see below] on behalf of another person or persons; and
  • the person is registered under the Value Added Tax Act 1994.

Communications to government: communications within this provision are oral or written communications made personally to a Minister of the Crown or permanent secretary in the United Kingdom Government relating to:

  • the development, adoption or modification of any proposal of the government to make or amend primary or subordinate legislation;
  • the development, adoption or modification of any other policy of the government;
  • the making, giving or issuing by the government of, or the taking of any other steps by the government in relation to, any contract or other agreement, any grant or other financial assistance, or any licence or other authorisation; or the exercise of any other function of the government.

It does not matter whether the person to whom the communication is made, or the person making it, or both, are outside the United Kingdom when the communication is made.

Exceptions for certain activities [see TLA 2014 sched.1]

Excepted from the definition of ‘consultant lobbyist’ is:

* A person who carries on a business which consists mainly of non-lobbying activities, and the making of the communication is incidental to the carrying on of those activities. ‘Non-lobbying activities’ do not however include communications on government policy to the UK central, devolved or local government, EU institutions or foreign governments.

* A person who acts generally as a representative of persons of a particular class or description, whose income derives wholly or mainly from persons of that class or description, and the making of communications to government is no more than an incidental part of that general activity.

* A person who, as an official or member of staff of a sovereign Power other than the United Kingdom, or the Government of such a Power, or an international organisation, makes communications to government

Registrar of Consultant Lobbyists

The TLA 2014 provides for the appointment of a Registrar of Consultant Lobbyists who is to maintain a register of consultant lobbyists and to monitor compliance with the Act.

The Registrar will be authorised to publish guidance in relation to the operation of the Act.

Tacit consent: regulations to be made under TLA 2014 will likely make clear whether tacit consent will apply.

Update:

17/03/2015: the Office of the Registrar of Consultant Lobbyists has published its Business plan 2015-2016. The Register of Consultant Lobbyists will be launched on 25 March 2015, ahead of the dissolution of Parliament.

Enforcement

Civil enforcement: the Registrar will be empowered to impose a civil penalty on a person if he is satisfied that the person's conduct amounts to an offence under the Act. There will be a limit to the penalty of £7,500. There will be certain procedural safeguards and a right of appeal against a civil penalty to the First-tier Tribunal. However, there will be no due diligence defence to a civil penalty.

Criminal enforcement: if a person carries on the business of consultant lobbying whilst unregistered, an offence is committed by that person, and any individual who, not being entered in the register, engages in lobbying in the course of that business. It is also an offence for a registered person to engage in lobbying if the person's entry in the register is inaccurate or incomplete in a material particular, and the person has failed, when required to submit an information return, to provide sufficient information in or accompanying the return to enable the inaccuracy or omission to be rectified.
A person guilty of an offence is liable on summary conviction in England and Wales, or on conviction on indictment, to a fine and on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum.
There is a due diligence defence in relation to the above offences and provision for Directors’ criminal liability for such offences.

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[Page updated: 18/03/2015]

 

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