This afternoon the Office of the Registrar of Consultant Lobbyists has published a note claiming that comments made recently about the Lobbying Act, particularly in the wake of the stories about David Cameron and Greensill, have been “inaccurate and misleading”. The Registrar appears to be particularly exercised about the PRCA and others repeatedly pointing out that loopholes in the Act mean that many lawyers and other consultants who lobby can in effect decide for themselves if they want to apply the legislation to themselves or not.

The note says: “Some recent comment has suggested that a number of groups of people, such as lawyers,
management consultants or politicians, are not bound by the current law and that only businesses defining themselves as ‘consultant lobbyists’ are subject to the rules…. Whether an activity needs to be registered as consultant lobbying depends on the nature of the activity, not on the sector or whether the individual or company considers themselves to be a lobbyist”.

It is slightly surprising that these remarks ignore Schedule 1 of the Act, which is devoted to setting out who is exempt from the Act’s provisions, stating:

A person does not, by reason of making a communication, carry on the business of consultant lobbying if (a) the person carries on a business which consists mainly of non lobbying activities, and (b) the making of the communication is incidental to the carrying on of those activities.

At first glance this loophole seems sensible: it means that the boss of a widget manufacturer who writes a letter to a Minister on behalf of someone else doesn’t have to register as a lobbyist. But in practice it leaves it wide open for pretty much any consultancy business to omit itself if it wants to, given that in the vast, vast, majority of cases lobbying on behalf of clients makes up only a tiny fraction of overall business activities.

As it happens, all of the Big Four management consultancy firms do register. But we cannot be sure if smaller companies in that sector act as consultant lobbyists, and whether they register the fact or not. Of the magic circle law firms only Clifford Chance appears on the ORCL register (it’s worth noting that two other companies with high profile public affairs offers, Norton Rose and DLA Piper, also do), but there could be any number of smaller law firms, not to mention ‘strategic consultants’ and others, who lobby but do not feel any compunction to register the fact. In fact, David Cameron could have set himself up as a business consultant and lobbied on behalf of Greensill as a third party and still not needed to register that he was doing so provided it did not make up the “main” part of his business. As it turns out he was seemingly employed direct, but the result is the same: there was no need for him to register what he was doing.

All this means that I’m afraid to say that the Registrar’s note today is itself somewhat misleading. And we haven’t even got started on the other side of all of this, namely that the Register records whether or not the registrant has signed up to a Code of Conduct governing the behaviour of the lobbyists concerned. According to the ORCL website, despite the fact that they commendably register as lobbyists, none of the management consultants and the law firms mentioned have adopted a relevant Code. They are of course highly reputable organisations, so I am sure they always behave properly, but we do not know what rules they follow. Moreover, unlike members of the PRCA Public Affairs Board they are excused from publishing their client list; I am not aware that any of them choose to do so voluntarily. In short, even if we know that they lobby we can have no clue who for, which is hardly very transparent.

The correct response to all of this is not for the Registrar to waste time criticising entirely reasonable and accurate comments made about the deficiencies of the Act and instead to recommend that the Government and Parliament make two big changes to it. First, the exemptions under the Act should be ended, and anyone who is paid by someone else to lobby government should be treated as a consultant lobbyist, even if such activities are a very small part of what they do. Second, the Act should require all consultant lobbyists to sign up to a recognised Code of Conduct which obliges them to publish a list of their public affairs clients. These are simple changes. I’m looking forward to an update from ORCL that backs them.