STATUTORY REGISTER OF LOBBYISTS AND THE VIEW OF CIPR (UK)

The Chartered Institute of Public Relations (CIPR) is the professional body for public relations practitioners in the UK. With 9,500 members involved in all aspects of public relations, it is the largest body of its kind in Europe. The CIPR advances the public relations profession in the UK by making its members accountable through a code of conduct, developing best practice, representing its members and raising standards through professional development. The CIPR, through the PR Academy, provides the CIPR Public Affairs Diploma, a professional qualification specific to lobbying.

The CIPR has several sectoral groups, the largest of which is the CIPR Public Affairs Group. It has more than 700 members and is made up of communications professionals who have regular dealings with Government, or the institutions of Government, in its very widest sense. The Group meets regularly to discuss key issues relating to UK politics.

The CIPR, along with the Association of Professional Political Consultants (APPC) and the Public Relations Consultants Association (PRCA), founded the UK Public Affairs Council (UKPAC) after a recommendation from the House of Commons Public Administration Select Committee for a public register of lobbyists. (The PRCA resigned as a member of UKPAC in December 2011). Each member body in UKPAC (currently APPC and CIPR) has a code of conduct to which its members must adhere and a disciplinary process to be used in the event of any breach of its code. Members of the APPC and CIPR that meet the UKPAC definition of lobbying are required to register.

General comments

The Government stated its intention to introduce a statutory register of lobbyists in the Coalition Agreement. This policy was announced without prior consultation with the lobbying profession and as such no opportunity was taken to discuss either the nature of the problem as identified by the Government or the effectiveness of a register in tackling it. The subsequent consultation (Cm 8233) lacks an attempt at a definition of lobbying activity and favours a register which would exempt (by most credible estimates) the vast majority of lobbyists and lobbying activity. In that sense, the CIPR feels the Government proposals are inadequate and would not stand the test of time.

CIPR’s  position on lobbying in general goes further than the Government’s description of it as a ‘legitimate activity’ and in fact sees it as an essential part of the democratic process with an important relationship to freedom of speech. CIPR therefore supports the intention made clear in the paper that the Government does not wish to introduce obstacles or burdens to those who engage in lobbying or who employ lobbyists.

However, CIPR also accepts that influencing public policy is both a sensitive issue and one of public interest and that ideally lobbying should be normalised – that is to say, open, understood and accepted. Transparency is consistent with CIPR’s  view on professional standards and good practice in public affairs and its code of conduct requires members to deal openly and honestly with the public (including government) at all times. Nonetheless CIPR  believes the provision of more information in the public realm about lobbying activity may help achieve greater understanding and acceptance of legitimate lobbying activity and could be a positive outcome from the introduction of a statutory register.

The paper expresses the Government’s preference for a register of those who lobby on behalf of third parties. This would place a disproportionate burden on multi-client lobbying agencies and freelancers, and would ignore the significant role played in influencing public policy by in-house lobbyists. This approach would also build loopholes into the register, which might be exploited by unscrupulous operators. Having a register which did not encompass the vast majority of the industry would, in CIPR’s view, not meet the Government’s aim of addressing the concerns about a lack of transparency.

The CIPR agrees with the Government that a register should not be supported by a statutory code of conduct for lobbyists, which would undoubtedly be costly and impose unnecessary regulation. Professional lobbying activity is currently supported by self-regulatory codes available through membership of representative bodies such as the CIPR, the APPC and the PRCA. Whilst membership is voluntary, members do have access to training, guidance and qualifications, (particularly through the CIPR, which offers the only Public Affairs Diploma) which reinforce best practice. Self-regulation through such bodies provides an active link between ethics and professional standards which is enhanced through structures of accountability in which the public can place their faith.

Definitions

‘Lobbying’ and ‘lobbyists’ are not easy to define. Although there is a growing number of professionals, both in-house and working for multiple clients, who work solely as lobbyists, influencing public policy is not restricted to this group and the label of ‘lobbyist’ is not universally accepted by everyone who seeks to do so.

The CIPR believes that the legislation governing a statutory register of lobbyists should focus on a clear definition of lobbying as an activity. This would provide a basis for identifying those who engage in lobbying and would ensure that the register captures information on everyone engaged in influencing policy within reasonable limits. Certainty - that people should be able to know with reasonable certainty whether or not their professional or other activities require them to register – should be a key principle in the approach to the legislation.

The CIPR suggests defining “lobbying” (or “lobbying services”) as activities carried out in the course of business or employment, which are designed to influence government or other official policy or to help others to influence government or other official policy.

‘Influencing policy’ means seeking to influence it generally or specifically. By generally, it should encompass influence through long term relationship building or through laying the foundations for new thinking in policy. Lobbying in relation to specific matters would be for the purpose of achieving a specific result or perhaps in terms of a defined strategy, campaign or piece of legislation.

Determining whether a service is designed to influence government policy requires a subjective test as to the purpose of the services provided. The CIPR believes that in this context a subjective test is appropriate, and sufficiently justiciable and notes that in certain other legislative contexts – such as s.1 of the Terrorism Act 2000 (“the use or threat is designed to influence the government …”) – the test of whether action is designed to achieve a result appears to have been sufficiently effective.

In the context of a register of UK lobbying activity, ‘government or other official policy’ should include Central Government, the Scottish Government, the Welsh Government, the Northern Ireland Executive or a local authority in any part of the United Kingdom. The geographical limits of the register would define which bodies are included. However, it is noted that there is an existing register covering the European Parliament which already includes UK lobbyists, and proposals are being actively promoted for the Scottish Parliament.

The CIPR believes lobbyists carry out, in the course of their employment, lobbying activities (as defined above) in the course of a business, trade or other undertaking, whether or not for profit. This includes activities carried out by someone who volunteers to work for an organisation.

The approach of identifying lobbying activities or services rather than describing a class of lobbyist is consistent with regulatory approaches in other areas. Examples include ss.14 and 15 of the Legal Services Act 2007, and the same approach is also taken in relation to trade regulation such as in s.1 of the Estate Agents Act 1979.

Overall, a broad definition supports the Government’s objective of greater transparency in lobbying activity. In cases of doubt a wide definition will encourage people to err on the side of caution and register, which the CIPR regards as an advantage. A register that imposes a low administrative burden without in any way constraining people’s right to lobby would assist in the aim of providing more information about lobbying activity. Defining the activity rather than the person undertaking it will mean that the register should cover the provision of lobbying services in contexts where it may not necessarily be acknowledged as such.

A broad definition also helps address the fact that lobbying activity does not only include seeking to influence official policy directly, but includes those who give advice regarding lobbying, or advise others in their attempts to influence government policy. The CIPR believes that a person who orchestrates or devises a lobbying campaign should be registered, whether or not they engage in direct correspondence or meetings with Ministers or other officials. An agency that merely provided news about requested subjects would not fall within the definition; but if the information were deliberately focused on matters on which the organisation might wish to intervene, or if it included advice about “lines to take”, it would fall within the definition.

Scope

The CIPR believes the Government’s preference for a register that covers only multi-client lobbyists, even assuming that it included the law firms, management consultancies and other professional service providers offering lobbying services, would ignore the significant role played in influencing public policy by excluding in-house lobbyists. This approach would build loopholes into the register which might be exploited by unscrupulous operators. Having a register which did not encompass (by most credible estimates) the vast majority of the industry would, in CIPR's view, not meet the Government’s aim of addressing the concerns about a lack of transparency.

Universality - that everyone who meets the definitions of lobbyist as understood by their involvement in lobbying activity in the course of their employment is required to register – should also be a key principle in the approach to the legislation.

Pro-bono

Lobbyists working on a pro-bono basis should be required to register. Exemptions from the register based of this kind could be regarded as invitations to avoidance for unscrupulous operators. It would also mean it would fall short of meeting the Government’s aim of addressing the concerns about a lack of transparency.

A register of lobbyists should include lobbyists in any employment context, regardless of the purpose or cause, in order to meet the Government’s aim of addressing the concerns about a lack of transparency.

Trade unions and charities should be regarded in the same way as in-house employers. The principal lobbyist should be required to register and the CIPR believes the entity should also be required to register.

‘Think tanks’ should be required to register. Typically, they exist to influence government policy or public discourse on policy and often raise funds from corporate backers who support their objectives. They frequently play a positive role in the long term development of policy and add to the public discourse on important topics, which is also a direct product of the lobbying process where it is carried out to professional standards.

Public participation

A member of the public or of a trade or profession who is approached by a Minister or other official and asked to provide information would not be lobbying while he or she was purely reacting to a request for information. Individuals responding to government consultations in their own capacity should be similarly exempt.

An individual who lobbies his or her MP (or other elected representative) should not be required to register, because they would not be acting in the course of a lobbying business. An individual, who lobbies an MP on behalf of another individual, should also not be required to register provided they are not acting in the course of a lobbying business.

An individual who acquires an interest in a particular matter and lobbies on behalf of a number of other individuals should be required to register, if the definition focuses on the nature of the activity as we hope it will.

Members of Parliament or of other elected bodies, who lobby Ministers in the course of their duties, should not be required to register. A member of Parliament or of another elected body, who runs or is employed by a professional lobbying agency in the course of which he or she lobbies on behalf of clients, should be required to register.

Although this means that some people may end up feeling obliged to err on the side of caution and to register, the burden of registration should be light and the CIPR believes that universal registration of this kind is a reasonable price to pay to produce a level playing field for all those who undertake lobbying in the course of their business or employment, whether or not for profit.

Information to be included in the register

The CIPR generally believes that the burden of compliance should be low and that a reasonable level of information should be required. Because of the close link between lobbying and freedom of speech, registration should be quick, easy and cost effective.

The legislation should require both individuals and entities seeking to influence government policy (whether a corporate body, a multi-client agency, charity, law firm, think tank or trade union) to register. This would ensure that all levels of lobbying are represented.

The information required to register as an individual lobbyist might be restricted to:

• Name
• Contact information
• Names of o Employer (either in-house or multi-client agency, or in any other context), o Clients (if multi-client agency)
• Disclosure of previous role as an elected representative
• Disclosure of previous employment in the civil service (or other relevant public body)

Registration as an entity could help organisations where some employees might occasionally become involved in lobbying. It would avoid both the need for unnecessary multiple registration, and inadvertent unregistered lobbying by individuals whose involvement was peripheral and incidental, for example expert advisors or senior members of staff who have very occasional contact with the lobbying process. Even so, these organisations should be required to register their principal lobbyists individually. The register should support industry self-regulation by providing details of whether or not the registrant is regulated by an appropriate regulator. The CIPR believes this is essential as this will, through a process of “nudge” rather than by statutory force, encourage vast number of lobbyists who are currently unregulated, to become regulated.

The CIPR believes that being listed on the register as “regulated” will be a powerful message to employers, recruitment consultants and clients, who will seek out those who are regulated over and above those who are unregulated. The CIPR believes this could be one of the principle benefits of the register.

It will also be necessary to ensure that any proposed regulator is assessed as being relevant and fit for purpose by the register’s operator. This will involve reviewing their codes of conduct and disciplinary procedures to ensure they are consistent with best practice.

Financial information about the cost of lobbying and about any public funding received

The inclusion of information about the cost of lobbying which is drawn from the fees charged or paid would be commercially sensitive. It would also add an unnecessary compliance burden and make it more difficult to register.

Where public funds are concerned, the CIPR is generally of the view that the public has a right to know how taxpayers’ money is spent in regard to lobbying activity. However, CIPR would question whether the register envisaged is the right vehicle for this.

Frequency of returns

If the Government envisages a retrospective register of lobbying activity, experience through UKPAC would suggest that quarterly returns would be a manageable mechanism for keeping the register up to date.

Additional functions

Aside from administering the register and possibly verifying the information, there should be no additional functions provided by the register’s operator.

Funding

Provided the burdens, both in terms of compliance and cost, are kept low, the lobbying industry should meet the cost of the register. In this regard, because of the positive role lobbying plays in our democracy and the link with freedom of speech, cost should be kept to an affordable minimum. In this, special regard should also be paid to the number of small and micro businesses which provide lobbying services, as well as the number of Freelance lobbyists. It should also be understood that a register which covers only multi-client lobbyists will be smaller in terms of the number of possible registrants. Since it would be inappropriate for the cost of a register to be met from public funds, the entire burden of administration would fall on a small part of the lobbying industry that contains many small businesses. A universal register of lobbyists would potentially spread the burden of cost in a more appropriate manner.

Sanctions

The CIPR found some support through member surveys for the idea that only lobbyists who register should be able to access Government and those in breach of the legislation would be struck off. This would mean the sanction is fundamentally commercial and non-compliance would severely restrict the ability of the lobbyist to influence policy. Although this is an attractive idea in terms of providing a level playing field for commercial lobbying, it is not a practical one unless a real time register can be provided that would allow for first-time lobbying (i.e. a current, rather than retrospective register).

In this regard, the CIPR believes the legislation should prescribe sanctions that are broadly aligned with offences under company law.

The Register’s Operator

The CIPR believes that the most appropriate body to run the register would be competent and independent, but with a structure through which it could be advised by the industry and government. The register should not be operated solely by government.

In this respect, CIPR's recommendation is that UKPAC, a body established by the industry to provide a model vehicle for a statutory register, should be considered as a potential provider, since it has experience and knowledge of creating a register of lobbyists on a voluntary basis. Currently, it has a board with both independent and industry representation, but these can be reconfigured to meet the requirements set out in the legislation.

Summary

1. The CIPR believes the register should be underpinned by a strong definition of lobbying as an activity designed to influence government policy carried out in the course of business or through a person’s employment, whether or not in a voluntary or not-for-profit capacity
2. The CIPR believes the register should support the existing structures of industry self-regulation.
3. The CIPR believes that a register of lobbyists should be universal or it will fail to meet the Government’s own objective of addressing a perceived lack of transparency in lobbying.
4. The CIPR believes the cost and compliance burden of the register should be kept low and to a widely affordable minimum
5. The CIPR believes the register’s operator should be independent but advised by both the industry and government