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

The Public Relations Consultants Association (PRCA) is the professional body that represents UK PR consultancies, in-house communications teams, PR freelancers and individual PR practitioners. The PRCA promotes all aspects of public relations, public affairs and communications work, helping teams and individuals maximise the value they deliver to clients and organisations.

Definitions

The PRCA agrees with the Government that lobbying is a 'perfectly legitimate activity' which forms a vital part of the political process. There is no uniform practice of lobbying, but the Government is right to focus solely on professional or commercial lobbying and to exclude non-professional lobbying; for example, 'normal activity between constituents and MPs'. Adding this interaction would be overly burdensome, and would not result in greater transparency of the industry.

Lobbying is the professional practice of deliberately and intentionally informing and influencing the decisions made by policy-makers involved in the public policy process. It is the “process of seeking to shape the public policy agenda in order to influence government (and its institutions) and the legislative programme”. In terms of registrable activity on a statutory register, lobbying refers to contact and/or communication with those working for and/or representing the institutions of government, as well as assisting lobbying through the provision of professional advice, strategy or counsel.

The purpose of a statutory register is to increase transparency in order to facilitate greater public awareness (ergo public trust or confidence) of who is lobbying the political institutions of the United Kingdom. Therefore the definition of a lobbyist must be broad enough to ensure that all professional lobbyists are included in a register. A narrow definition of a lobbyist will hinder attempts to achieve full transparency and will result in an incomplete picture of who is lobbying, rendering the register unfit for purpose.

A lobbyist is a professional who performs the practice of deliberately and intentionally informing and influencing the decisions made by policy-makers to reflect the interests of the lobbyist, or the interests of a party the lobbyist represents, in the public policy process. This includes contact and/or communication as well as assisting lobbying through the provision of professional advice, strategy or counsel. A lobbyist is not defined by the specific profession of the person conducting the lobbying, but by the act of lobbying in a professional capacity itself. Any person that falls under this broad definition  should be included in the statutory register as an individual registrant, or as a member of staff of an organisation that employs the individual as a lobbyist. There should be no exceptions.

The PRCA finds any time thresholds that act as a condition to defining a lobbyist to be unhelpful and misleading. If a professional undertakes any activities that can be defined as lobbying in a given period, then they should be considered a lobbyist and consequently included in that period's register.

In the consultation document the Government declines the opportunity to include in-house lobbyists. The PRCA believes the Government’s decision appears to be borne out of a misunderstanding on the nature of lobbying activities, and the comparative size of multi-client consultancies and in-house communications teams. A recent study has shown that in the UK there is a ratio of four in-house lobbyists for every one lobbyist in a multi-client consultancy. By way of further comparison, the EU Transparency Register is made up of 10% consultancies, the other 90% working in-house, for trade associations, NGOs, etc.

The statutory register is in part a response to the inability of voluntary registers to cover the entire industry. By exempting in-house professional lobbyists the Government would be committing the same mistake if it exempts around 80% of the industry.

The Government’s assertion that because it declares its meetings with business it does not need to expand the register to include in-house communications teams is a prioritisation of one form of lobbying over others. Organisations conduct various lobbying practices through their in-house communication teams – i.e. contacting and engaging with policy-makers and not just through meetings with ministers. Lobbying is not a uniform practice.

Therefore the declaration of ministerial meetings does not provide enough transparency by itself. Including in-house communications teams on the statutory register would ensure the public is fully aware of which organisations and which members of their staff are lobbying - not just the few that meet directly with ministers.

Similarly, the consultation suggests “when ministers meet lobbying firms it is not transparent on whose behalf they are lobbying”. A statutory register will resolve this problem by clearly showing which clients multi-agent consultancies represent. However, the role of the lobbyist is to facilitate meetings and representations on behalf of clients with public officials, which means a lobbyist will rarely have meetings without their client in attendance. In most cases declaring the lobbyist and the client present at the meeting with the minister would resolve this issue. A recent study has shown that out of 6,700 ministerial meetings between May 2010 and June 2011, fewer than 20 were with multi-client consultancies. This suggests the problem the Government is targeting has been greatly exaggerated.

Further, most multi-client consultancies are members of the three trade bodies, which means in the majority of cases information regarding who they are lobbying on behalf of is available to the public already. Therefore the PRCA is concerned that the consultation is focused on a very specific and rare form of lobbying, rather than a comprehensive attempt to make lobbying more transparent.

In sum, the Government must reconsider its narrow definition of lobbying if it is to avoid creating an unsustainable register that does not fulfil its purpose of providing greater transparency of the entire public affairs industry. Only a broad definition is conducive to a universal, transparent register that receives widespread public support.

Scope

First, a broad definition is necessary to capture all lobbyists in order to achieve full transparency and public confidence . Second, it is not the particular profession that defines a lobbyist, but the professional act of lobbying itself.

Who should register?

The consultation accepts that “it is not unusual for trade unions to campaign on behalf of their members in favour of particular public policies”. A union's political campaigning function qualifies its inclusion in the register as it falls under the definition of lobbying: it is seeking to inform and influence the public policy process.

Think Tanks vary in size and influence. However, their primary function is to shape policy. In fact some of these think tanks have been enormously influential in the past – having very direct influence over policy making, especially when parties are in opposition. Despite their charitable status, their close links to politicians and their main function to deliberately and intentionally inform and influence the public policy process means Think Tanks should be included on the register.

Charities are no different from other organisations in their use of in-house lobbyists. The PRCA expects that in any statutory register all charities that employ in-house lobbyists should be included.

It is clear that Trade Unions, Think Tanks and Charities all conduct lobbying practices, which means they should be included along with other in-house lobbyists on the statutory register.

It must also be noted that the consultation paper ignores certain other types of organisations that seek to inform and influence the public policy debate through lobbying practices. This includes, but is not limited to, law firms and management consultancies, NGOs, business groups, etc., that lobby on behalf of third parties, and trade bodies.

Public Participation

Public participation in the development of Government policy is best safeguarded through the equal treatment and consideration of various relevant interests that could impact policy. It is crucial that the Government does not provide the operator of a statutory register any powers that result in the discrimination of certain types of lobbyists. Value-judgments on the different types of lobbyists must not influence a statutory register.

The PRCA is concerned that the statutory register outlined by the Government will adversely affect the public affairs industry by exclusively requiring multi-client consultancies to be on the register. Evidently multi-client agencies form only one part of the industry , so the Government must ensure that a register does not become a tax on multi-client consultancies, as it will be only these consultancies that pay for the register. This will have the effect of distorting competition by giving certain lobbyists an unfair commercial advantage over others.

The PRCA accepts the Government‟s recognition that the purpose of the register should not be to unduly restrict the “lobbyists‟ freedom and ability to represent the views of the businesses, groups, charities and other individuals and organisations they represent”. However, the proposals put forward mean public participation in the development of Government policy will not be even between different types of lobbyists.

Financial Information

The PRCA agrees with the Government that financial information should not be included on the statutory register because: “It is more important to know who is lobbying and for whom than to know the cost”. The PRCA is opposed to the inclusion of financial information in principle and in practice.

The PRCA is opposed in principle because disclosing financial information would undermine commercially sensitive and confidential contracts without increasing transparency. The Government's reasoning for a register of lobbyists is based on a public interest in who is lobbying . There is no evidence of a public interest regarding how much lobbyists are paid, so not including this information would not hinder the register from its purpose.

It is opposed in practice because there would be “significant difficulties” in obtaining this information, and it would distort the market place and break competition law. Upon receiving legal advice, the PRCA is concerned that a statutory register with financial information included could contravene Articles 81 of the post-Amsterdam EC Treaty as it would lead to “anti-competitive agreements, concerted practices and collusive behaviour”. This is reflected in Chapter I of the UK Competition Act 1998, which came into force in 2000. Therefore:

“The legislation should not have the effect of distorting competition…by requiring compulsory disclosure on the public register of sensitive commercial information such as to result in an anti-competitive distortion of the market place”.

Frequency of returns

The PRCA currently operates its Public Affairs Register on a quarterly basis. This provides an adequate period of time to allow for changes of clients and staff without becoming overly burdensome on members. The PRCA consistently produces the complete register within a month of the end of each quarter. Therefore the PRCA agrees with the Government that a register should be updated quarterly. Information should be retrospective to the past three months. This means the Register captures those who have been involved in the "act of lobbying‟ .

Additional functions

To avoid confusion and to ensure that the register is effective in fulfilling its purpose , the statutory register should focus solely on reproducing accurately and presenting usefully information provided by the registrants. Outside of this, the register should have no additional functions that distract it from this role.

The PRCA agrees with the Government that a code of conduct “is a matter for the industry itself, not for the operator of the register”.

The PRCA, along with the other trade bodies, operates its own specific public affairs code of conduct . The code applies to all members including individuals and freelancers and in-house public affairs practitioners. There should be an option on the register to indicate if a registrant is signed up to a trade body's code of conduct. This will likely not create any additional costs to operation and registration and will increase transparency as the public and politicians will be able to recognise which organisations and individuals are regulated by an ethical code.

Entries should be retrospective to prevent the register from becoming too unwieldy. This means that organisations and individuals should only place themselves on a certain period's register if they have conducted public affairs services in that period. There must also be a simple process for individuals and organisations to stop paying fees when they leave the register if they no longer conduct lobbying activities.

Therefore the PRCA agrees with the Government that “ultimate responsibility for the information published should rest with those required to register, and not the register's operator”.

Funding

The register should be funded by the persons and organisations that are registered. The PRCA believes registration should be a low flat fee that is not punitive on smaller multi-client consultancies, other organisations, and individuals/freelance public affairs professionals included on the register. The fee should be paid quarterly to take into account that some individuals and organisations will not necessarily be included in every quarter's register.

The PRCA believes the fee structure of the General Dentist Council's register (£576 per annum pro rata) is much too high and would act as a disincentive to register. The maximum any organisation has to pay should be substantially lower, and individuals and freelancers should have to pay significantly less.

Furthermore, if the register is to be funded by the persons and organisations that are registered then any register that does not include all lobbyists risks contravening competition law. This is because a narrowly-defined register will place organisations at a commercial disadvantage against other organisations that also conduct lobbying, but are not required to pay to be included on the register.

Following similar attempts to regulate the Scottish public affairs industry in 2001, the PRCA received legal guidance that legislation should treat cases alike and should not grant exemptions to different classes of lobbyists as it could be considered discriminatory under Article 14 of European Convention on Human Rights: “The legislation should treat like cases alike and should not grant exemptions to some class of lobbyists but continue to regulate others, since such differential treatment may contravene Article 14 ECHR”. Therefore legislation should not give “certain lobbyists or lobbying sector an unfair competitive advantage over others”.

In sum, the PRCA agrees with Government that the register should be funded by the lobbying industry, but believes it should be made clearer how much operating such a register would cost before committing to comparisons with other registers like the General Dentist Council. The Government must take into account the serious ramifications that could distort the market place if it exempted certain types of lobbyists from funding the register, and how this might be considered discriminatory in relation to the ECHR.

Sanctions

For the register to be credible it must have statutory powers to penalise individuals and organisations for non-compliance. The PRCA views the system of sanctions in The Companies Act 2006 to be reasonable, as it agrees that there is a similarity in these duties and the duties proposed for the register. Following the Companies Act sections 451-453: small offences such as late filing and inaccurate information should face a warning notification period followed by civil penalties such as fines of up to no more than the registration fee for continued non-compliance. More serious offences, including failure to submit to the register and the provision of deliberately inaccurate or misleading information, should face larger civil fines and/or criminal proceedings.

The register’s operator

The PRCA is unequivocal that the register's operator must be a body that is independent of both the Government and the industry. This is the only type of body that can guarantee public confidence.

Therefore no existing self-regulatory or self-registration body should be considered by the Government as a viable operator of the register.

The PRCA agrees with the Government that the operator should publish annual reports on its operation.