UK CRITERIA FOR CONSULTANT LOBBYISTS

The Office of the Registrar of Consultant Lobbyists was set up following the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act of 2014, in order to create and administer the statutory Register of Consultant Lobbyists. The Government’s intention behind the introduction of the Register was to enhance the transparency of those seeking to lobby Ministers and Permanent Secretaries on behalf of a third party. At its heart, the role of the Office of the Registrar of Consultant Lobbyists is about ensuring there is transparency in the work of consultant lobbyists and their engagement with Ministers and Permanent Secretaries on behalf of clients. 

Who is required to register?

The Act states that a person must not carry on the business of consultant lobbying unless they are entered in the Register of Consultant Lobbyists.

 Organisations and individuals are considered to be carrying out the business of consultant lobbying if they fulfill the following criteria: They have made direct oral, written or electronic communications personally to: a Minister of the Crown, Permanent Secretary (or equivalents) currently in post, referred to as “Government Representatives” relating to:

1. The development, adoption or modification of any proposal of the government to make or amend primary or subordinate legislation
2. The development, adoption or modification of any other policy of the government
3. The taking of any steps by the Government in relation to any contract, grant, financial assistance, licence or authorisation; or
4. The exercise of any other function of government.

This communication is made in the course of a business and in return for payment on behalf of a client, or payment is received with the expectation that the communication will be made at a later date. They are registered under the Value Added Tax Act (1994).

 What are Government Representatives?

Government Representatives are Ministers of the Crown, Permanent Secretaries (and any equivalents as specified by the Act) of Her Majesty’s Government, in post at the time when  lobbying is carried out. Any communications made to Government Representatives prior to accepting this post, or made after they have left their post, will not trigger the need for registration. Equivalent positions are listed as follows:

•  Cabinet Secretary
•  Chief Executive of Her Majesty’s Revenue and Customs
•  Chief Medical Officer
•  Director of Public Prosecutions
•  First Parliamentary Counsel
•  Government Chief Scientific Adviser
•  Head of the Civil Service
•  Prime Minister’s Adviser for Europe and Global Issues.

If communications are general and not made on behalf of any client or group of clients, and are made for the purpose of business development, brand enhancement or in the professional interest of the organisation or wider public interest, such communications are not registerable.

When communicating with a Government Representative, the critical issue is whether consultant lobbying activity as defined by the Act is taking place. If the criteria for consultant lobbying are met, it is irrelevant whether the subject of the communication is unrelated to the Minister’s portfolio, if the Minister is appointed to an unrelated department, if the matter is considered to be a party issue or whether the Minister is considered to be acting as a constituency MP – the communication will trigger the requirement to join the Register. In the event of a reshuffle or reappointment, communications made to a Government Representative will only trigger the requirement to register after they have come in to post as a Minister or Permanent Secretary.

What communications require registration?

Making communications personally means communicating directly with a Government Representative by name or by title, using oral, written or electronic communication. An example would be writing an email to a Minister of the Crown in which the email is addressed to the Minister specifically

• Communications made to a government department, special adviser, administrator, a private secretary or a private office, are not made to a Government Representative personally. However communications addressed to a Minister but sent via a private office would have to be registered.
• Communications sent by a client (whoever drafted them) or a reply sent from a Minister/Permanent Secretary (even if sought via a RSVP), do not need to be registered.
• If the communication is an invitation, and contains material which meet the criteria of consultant lobbying, then it is registrable. If the invitation contains no such material, it is not registrable.
• Communication with a Minister only needs to be registered if it relates to matters of Her Majesty’s Government; this does not include matters relating to local government. An example might be writing to a constituency MP about a local planning issue. In the event that a planning issue is ‘called in’ to the level of Secretary of State any communications from this point would need to be registered as they then involve matters of Her Majesty’s Government.
• In the event that an organisation anticipates at an earlier time that a planning application will be “called in”, it would be sensible for registration to take place at that earlier point (consistent with the approach that registration may be made in advance of any specific lobbying activity being envisioned).
• It does not matter from where the communication is made: it could be a face-to-face meeting within a government office, at a restaurant, at a party-political conference or made from overseas: if the criteria for consultant lobbying are met, then this will trigger the requirement to join the Register.
• In the case of electronic communications, emails that are sent directly to a Minister’s address will trigger registration. If using social media where a message directed to a Minister’s (official or personal) account is made which fits the criteria for consultant lobbying, this will require registration. However if an organisation were to refer to a Minister’s account indirectly, such as by mentioning that the Minister is speaking at an event and tagging the Minister’s account, then this would not require registration.
• At times, it may be the case that a Government Representative initiates communications with an organisation or requests a meeting. If in the course of this exchange, the criteria for consultant lobbying have been met, then the organisation is required to join the Register, regardless of whether they initiated the communications.
• Direct communications can be planned or unplanned – a chance encounter with a Minister would be registerable if all the other criteria are fulfilled.

Communicating on behalf of multiple clients

It may be that a consultant lobbyist makes a communication on a single issue on behalf of multiple clients. In the case that the consultant lobbyist was being paid by all clients for this communication, they would have to register each client’s name in their quarterly update, no matter how many clients were involved to ensure transparency.

When is a communication considered to be made?

A communication is considered to be made in the moment that it is sent to a Government Representative. It does not matter if for some reason the recipient does not receive the communication. If the criteria for consultant lobbying are met, then the organisation making the communication should have joined the Register.

What constitutes payment?

Lobbying “in the course of a business” requires that an individual or organisation is engaged in lobbying as a commercial activity and in return for payment. Payment can be in any form and can be made directly or indirectly, meaning a consultant lobbyist cannot avoid registration by receiving payments via a third party. Payment could be made for a specific communication or a retainer that includes a number of communications. It does not matter whether the person or persons making the payment is, or are, the person or organisation on behalf of whom the communications are made.

Lobbying which is conducted without payment, for example as pro-bono, is not required to be registered. If an employee is on annual or unpaid leave and / or is seconded to / working for a Minister/client, and under direction of that Minister or client (and NOT the lobbyist’s employer) this activity is not registrable. In the case of indirect payments, it is the nature of the relationship and expectation of the client, which are important. The fact that direct communications are not listed as a line item on a contract or an invoice would not preclude the requirement to register, if the client’s expectation was that direct communications with a Government Representative would take place.

Exemptions from Registration

The following circumstances exclude a person from the definition of consultat lobbying and therefore do NOT require registration:

• Individuals and organisations not registered under the Value Added Tax Act (1994)
• Individuals making communications in the course of the employer's business (only the employer is required to be registered)
• Officials or employees of governments of countries other than the United Kingdom
• International organisations as defined by section 1 of the International Organisations Act 1968 such as the United Nations
• 'In-House' lobbyists defined as those who are lobbying on behalf of their own organisation
• Organisations that carry on a business which is mainly non-lobbying and communicate with Ministers in a way that is incidental to the main course of their business
• Organisations that represent a particular class or body of people and whose income is derived wholly or mainly from those people, and where the lobbying is incidental to their general activity.

Lobbying that is incidental to non-lobbying activities

The Act states that a person does not, by reason of making a communication, carry on the business of consultant lobbying if:

1. the person carries on a business which consists mainly of non lobbying activities, and
2. the making of the communication is incidental to the carrying of those activities.

Incidentally means ancillary to the main focus of a business (which is not lobbying). The making of the communication is connected with the business, but is secondary to its main concern.

The making of communications is NOT considered to be incidental when it is a substantive part of the main business, even if it is not the largest. There is no specific threshold for the amount of interaction that would meet the definition of lobbying: the definition is qualitative, not quantitative.

Situations may arise in which the main focus of a business may be law, accountancy, management consultancy or any other, but the subjects on which the organisation communicates with Ministers or Permanent Secretaries and/or the method and frequency of the communications requires them to register. For example, the organisation may have a Government Relations team, lead Partner or any other employee, whose job it is to communicate with Ministers or Permanent Secretaries on behalf of the firm's clients. The fact that the firm considers this service incidental to their business does not mean that they are not lobbying: it is the making of relevant communications that is significant.

Client confidentiality

In terms of client confidentiality, any professional would be expected to keep client affairs confidential unless disclosure is required by law. Here, the disclosure of client names would be required by the Act and professionals who are required to register, would have a duty to inform their client accordingly. There may be isolated instances where the Registrar might consider restrictions on publication if this was clearly not in the public interest.

Officials of government outside the UK

If the communicator is an official or member staff of a sovereign power or government outside the UK, or an international organisation, registration is NOT required. However, a consultant lobbying organisation representing an official of a government outside the UK would be required to register and declare this government as a client if they meet the criteria of consultant lobbying.

Membership organisations

The Act states that organisations that represent a particular class or body of people, whose income is derived wholly or mainly from those people and who communicate on behalf of those people in a way that is an incidental part of that general acrivity are exempt from the requirement to register. This refers to a group of, for example, workers, club members, professional body, or trade-body members. Those organisations representing such groups are exempt from having to register even if they lobby Ministers of the Crown or Permanent Secretaries, provided their communications are only made in their capacity as representatives of those organisations. However, in the case that they were, for some reason, to accept payment from a third-party who is not part of the group they normally represent, in exchange for communications made to Ministers or Permanent Secretaries in a way that is not incidental to their general activity, then they would be required to register.

Management of trade or membership organisations

It might be the case that a consultant lobbyist organisation is also linked to the management of a trade or membership organisation and lobbies on behalf of both its members and its clients. When deciding whether or not to register a s a result of a specific communication, the organisation should consider the criteria for consultant lobbying and on whose behalf payment was received.

Trade or membership organisations are exempt only when lobbying on behalf of a class or body of people; their income is derived wholly or mainly from that class or body of people and their communications are incidental to their general activity. If lobbying is conducted on a behalf of a client who is not represented by that trade or membership organisation in a way that is not incidental to their general activity, this is an act of consultant lobbying and will need to be registered, regardless of whether they are trade or membership organisation or not. In this case, the trade or membership organisation would be required to join the Register as a separate entity (and pay the registration fee) in addition to any registration made on behalf of the individual's consultant lobbyist organisation.

Charities

Charities are exempt from registering as long a sthey do not receive payment for making communications from the person upon whose behalf they are made. However, if a charity received payments from the person upon whose behalf it made communications, it would be required to register.

Evaluation of the UK Register for Consultant Lobbyists

More than 4,000 people are estimated to be working as professional lobbyists in the UK, and it is believed that £2 bn a year is pent on lobbying.

• The definition of lobbyist is so constrained as to render the register ineffective.
• Fewer than one in 20 lobbyists are covered by the UK lobbying register
• In-house lobbyists are not required to register
• Beside a list of present and past clients, the register provides little or no detail on the frequency or content of communications with government, the subject or value of any lobbying contract, or whether an organisation hired a former employee of the department the lobbyist is attempting to influence.
• Information on meetings with ministers or senior civil servants is published independently of the register by individual government departments. However, Transparency International found these publication suffer from severe delays, with the most recent publication referring to meetings that happened more than a year ago. The report by TI found 'hardly any' of them provided more than a superficial detail of the content of the meetings.
• The TI report recommends the register to be expanded to include in-house lobbyists and calls for the empowerment of an independent body to enforce compliance with the rules on the conduct of public officials. 'It is time for policymakers to strengthen accountability over lobbying, as a matter of priority, to help rebuild trust in public institutions, the process of government and the fairness of policymaking' the report concludes.