Response to the Registrar of Consultant Lobbyists

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.

Life in a Northern Town: Some thoughts on the Treasury move to Darlington

Amongst the many goodies dispensed by the Chancellor in his Budget last week was a special gift to the North East: an announcement that a significant part of the Treasury would move to Darlington. Over the next few years 750 senior civil servants will move up to County Durham. Yes, it is cynical politics aimed at shoring up newly-won ‘red wall’ seats and at bolstering the position of Ben Houchen, the hyperactive Mayor of Tees Valley. But even so, surely this is unalloyed good news, on multiple levels?

Not if you read the comments from a few local people on social media. Some expressed the rather sour-faced view that moving suits up from London wouldn’t create any jobs for Darlington residents, whilst others said that “the best we can hope for” are office cleaning and taxi driving roles. This is both depressingly defeatist and economically illiterate. For one thing, even if every one of the 750 suits is someone relocating from London, they will spend in local businesses, buy local houses, their kids will attend local schools, and generally they and their families will participate in the community and spend money. New companies will spring up to serve the needs of ‘Treasury North’ and its staff, both directly and indirectly, and those firms will bring jobs and opportunities for local people.

This trickle down effect of relocating public sector roles from London is demonstrable and significant. For example, despite some early quibbles it is now generally accepted that moving large parts of the BBC to Salford has brought measurable economic growth. This has included a cluster of new and innovative firms locally, making up “the second largest cluster of digital and creative business in Europe” and creating thousands of new jobs. In Darlington we can expect to see a similar process, including via spin offs such as economic consultancies founded by former HMT officials. In my own sector, I wonder whether we’ll see a few new public affairs folk operating in the area?

In many ways, though, all this is the least we can expect. In fact not everyone offered the move to Darlington will take it, so there will be spaces to fill right away. Over time the Department will need new recruits; people in the area now in education can hope to work at the Treasury one day without needing to leave the North East. With luck and good judgement schools and universities will adapt to meet this demand for highly qualified staff, bringing further knock on benefits.

But the economic and educational fillip for the North East is really only a small part of what Treasury North can deliver. Perhaps the greatest advantage of all is the change of perspective it ought to inspire. Removing people at the epicentre of policy-making from the Westminster and London bubble will allow them to see at first hand the impact of their decisions and recommendations so far away from the capital. If that doesn’t lead to more humane and responsive thinking it is hard to see what will.

For me, then, moving part of the Treasury to Darlington is a great idea, and one that probably should be repeated for other Government Departments. Of course there are risks, the greatest of which being that if Ministers stay in London to be close to Parliament the most senior officials will try to do the same, meaning that the North East will not receive the best civil servants and could become a backwater. Ministers will need to fight this natural instinct. Parliament can help too by allowing Ministers to strike a balance between being present in the Chamber and sitting in their office up north. But all this can be overcome, and in difficult economic times Treasury North should be one big success.

Speak Now: Why the Government will fairly quickly be forced off the fence over vaccine passports

In recent weeks, as the Government has very impressively rolled out its vaccination programme, there has been increasing discussion of ‘vaccine passports’. It is said that such documents might open the way for Summer holidays, and that they might be used to allow some lucky people to return to the pub, or to go to mass participation events. This enthusiasm has spilled over into the world of work, with care homes suggesting that they might require new employees to have been vaccinated, and a chain of plumbers saying the same.

The Government, though, has been less keen; a charitable description of Ministerial statements is that they have been very cautious, although others might say they have been confused. They seem to back vaccine passports for international travel, which is fair enough given that many countries have for years asked for proof of inoculations against other diseases. But back at home it has been less sure-footed. The Prime Minister has ruled out passports for a trip to the pub, and from time to time other Ministers have poured cold water on the idea that the Government is preparing for their introduction domestically. But having once argued that “mandating vaccinations is discriminatory and completely wrong”, the Vaccines Minister has more recently said that the use of passports will be up to individual businesses, whilst the Foreign Secretary has agreed that shops and bars might well demand their use.

When it comes to employment contracts the Government also seems to want to sit on the fence. The Health Secretary has acknowledged that carers might be required by their employers to be vaccinated, and ‘sources’ have briefed the Times that “Ministers … have no plans to forbid others from setting up their own schemes, meaning that passports could become reality for many regardless”; the same newspaper has previously reported that care homes, schools and other businesses are drawing up plans to force staff to show they have been vaccinated. And the Lord Chancellor has apparently given a green light for companies to demand that new staff show a vaccine passport in order to obtain work.

So the Government seems desperate to stay out of this issue, allowing foreign governments and private businesses to decide the way ahead. This instinct is understandable but it is also unsustainable. And by failing to be clear about the way forward the Government is in danger of squandering some of the political capital it has accrued thanks to the success of its vaccination policy.

The reason the Government wants to stay out of this is obvious: it is difficult. If it intervenes to allow venues legally to prevent the unvaccinated from visiting, or to permit businesses to stop employees going to work without fearing a tribunal, the backlash will be severe. The backbenchers of the Covid Recovery Group have already made their position clear; to them, vaccine passports are discriminatory, undemocratic and frankly un-British. But it won’t just be hardliners who will be up in arms. What about the young, who will be vaccinated last? Or people who can’t have the vaccine? What happens if mutations mean we have to have another round of jabs next year? How will it all work?

But despite the risks the Government simply cannot remain aloof. Businesses are already demanding answers to some really knotty questions. For example, who is liable if an unvaccinated carer infects a patient? What if vaccinated staff refuse to work with unvaccinated ones? What happens if a homeowner refuses to allow a plumber into the house without knowing if they’ve been jabbed? Businesses and the public will increasingly look to the Government for clarification of these and a host of other issues. And it shouldn’t be forgotten that the Government is, directly and indirectly, a major employer and provider of services itself, and before too long its own staff will want to know what’s going on.

It is worth noting too that many of these same concerns also apply to mass testing. Can a company force an employee to have a test? Can it make the individual stay at home if they refuse? Does it have to pay them? What about schools and pupils, pub-goers and hostelries, accommodation providers and guests? What, in short, are our rights and responsibilities as individuals and as organisations in all of this?

There are no easy answers. But silence is not a viable option. As we begin to follow the roadmap out of lockdown starting from next week the clamour for answers will inevitably become overwhelming. If the Government doesn’t want to muff up it will need to adopt a clear position of leadership; and it seems obvious to me that it will end up having to say that discrimination on grounds of vaccine status and willingness or otherwise to take a test is legal, at least in some circumstances and with plenty of room for exemptions. It may even have to take the lead in creating a widely accepted ‘passport’. (At last! Some use for the NHS Test and Trace app!) Ministers will be roasted for doing so. But they really do have to speak now.

Why caring about legacy is a vital part of democracy

Over the years it has become a standard part of political commentary to castigate politicians for caring too much about their legacy. The argument goes that being so self-obsessed as to worry excessively about how history will judge them leads political leaders to make selfish, mistaken or vainglorious decisions in the here and now. If only they were less focused on themselves and thought less about their future image the world would apparently be a much better and safer place.

If you doubt this is true just trying Googling “Tony Blair obsessed legacy”. Somewhere near the top of the pile will be media coverage of Clare Short telling the Iraq inquiry that Gordon Brown believed Mr Blair went to war in Iraq because he was “obsessed with his legacy”. Later on the Daily Mail claimed that the former PM’s fixation on his legacy led him to “cut and run”, leaving the job in Iraq (in its view) half-completed. The Catholic Herald argued he was “self-obsessed”, whilst his successor reportedly spent time dumping on his legacy once he took up the reins of power. All in all, Mr Blair’s concern about how history would judge him has been reported as A Very Bad Thing Indeed.

Other politicians have also faced criticism on exactly the same grounds. For example, it is claimed that David Cameron’s desire to have as his legacy an end to Conservative infighting over Europe led to the Brexit referendum and everything after. Margaret Thatcher’s worries about her legacy may have led her to hang around for too long when she should have packed up and gone. In fact, name almost any major politician and you will find someone, somewhere, who has criticised them for thinking too much about how the students of the future will write them up.

But those people who have claimed the same about Donald Trump are massively missing the point. In fact, it seems to me that the real danger with someone like Trump is that he doesn’t care enough about how history will judge him. As yesterday’s events reveal, he is prepared to be remembered as a man who incited violence, undermined democracy, and ultimately weakened his own country. If he was at all interested in how he would be written up 50 years from now he would surely have behaved in a very different way in the past couple of months and for the past four years.

This is why being ‘legacy obsessed’ actually matters. No matter what constitutional checks and balances exist, if a leader is prepared to ignore, belittle, damage and destroy institutions around them they are likely to be able to do so, at least to an extent. History will not judge them favourably for it but if they don’t care it doesn’t matter. So worrying about your legacy should be regarded as a vital part of the way democracies operate. It is what keeps everyone playing by the same rules of the game. And we should never mock our leaders for having the vanity to want to be remembered as great, because otherwise they won’t try.

Post-legislative scrutiny review of Part 1 of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014

I am writing in response to the Government’s post-legislative scrutiny review of Part 1 of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014(“the Act”).

Park Street Partners is a consultancy engaged in corporate communications, public affairs and lobbying on behalf of a number of different clients.  I have also in the past been the Chief Executive of Newgate Communications and MHP Communications, the latter at the time being the largest public affairs consultancy in the UK.  I hold a number of posts in the PRCA: I am a member of its board, a member of the Public Affairs Board, and one of two standing members of the Professional Practices Committee of the PRCA.  I am a past Deputy Chair of the APPC and, at one time, I was a Clerk in the House of Commons – and so have been on the receiving end of lobbying as well as acting as a lobbyist.  Although I am drawing on all of that experience in writing this response, I should stress that I am doing so in a personal capacity.

This review is timely, not least given the media scrutiny the industry has faced in the past few months.  The Act has been a success in some regards, but it must be viewed as an important step along the way, not the end of the journey, as far as regulation of lobbying is concerned.  I hope that the Government will now make the changes needed to ensure that further steps forward are taken, not least in extending the provisions of the Act to a much wider range of lobbyists.

Overall context

‘Lobbying’ is often regarded as a disreputable activity that in some ways distorts and corrupts the political process.  This view is just plain wrong.  Effective policy can only be formulated when it is properly and fully informed by the views of all those affected by it – in other words, by lobbying.  Anyone involved in the political process knows that the worst policy mistakes have arisen when outside voices and experience have been ignored.

Generally speaking, those who object to lobbying really dislike something else: large companies which make a profit.  They tend to think that education unions having a view on schools policy, animal welfare charities pushing for changes to the law in their area, thinktanks advocating for improvements, small businesses seeking Government support or even individuals writing to their MPs are all acceptable but a corporation advancing its interests is not.  Yet all of these are lobbying, and they collectively make an essential contribution to ensuring that political decision-makers understand the impact of the choices they make.  What lobbying does is remove officials, advisers and Ministers from the ivory tower that the political process builds around them (whether they like it or not).

However, where those who are worried about lobbying have a point is when the process is less than transparent.  Lobbying is effective when policy-makers are able to hear from all sides, know who they are hearing from, and make a fully informed decision.  If any part of this is covert it breaks down.  The Act was meant to ensure that this was not the case, and it is only half successful.  The rest of this document will suggest ways in which it can and should be improved.

Do you think any changes to lobbying and the lobbying industry have resulted from the Act?

It would be difficult to point to major changes in lobbying practice as a result of the Act since, as I will discuss below, its scope is so limited.  That is not to say that the legislation has been pointless: in fact, it has provided a useful statutory back up to existing registers and self-regulatory structures.  However, it has in reality only impacted on those lobbyists who were already signed up for registers and codes of conduct anyway; for the Act to make a real difference it must be expanded in three important ways.

Is the scope of the Act – who registers and why – appropriate?

No.  The Act currently covers (in effect) direct lobbying of Ministers and the most senior civil servants (Permanent Secretaries) by consultant lobbyists.  This is not good enough in three ways:

  • Registration is only half of the story; those who register, and who are thus on some level at least are given a ‘stamp of approval’, should also be subject to a code of conduct that governs their behaviour, such as the PRCA Public Affairs Code.  The Act at present does not require registrants to sign up to a code (although it does allow this to be declared), and some have chosen not to do so, whilst others have adopted codes of questionable value.  All organisations on the register should be required to sign up to a recognised code of conduct which includes some way of them being held to account for their actions and behaviour.
  • The interactions covered by the Act should be expanded to include Special Advisers to Ministers and could also cover a greater number of civil servants (to keep this manageable it would be sensible to limit this to Director General level and above).
  • Most importantly of all, by far, the Act should be expanded to cover more of those engaged in lobbying.  At a minimum this should include lawyers, management consultants and accountancy practitioners, as well as those in corporate communications and other consultancy businesses, all of whom lobby incessantly but can currently claim an exemption under Schedule 1 of the Act, saying they are carrying on “a business which consists mainly of non-lobbying activities”.  This is unfair and untransparent.

There is a good argument for also covering charities and campaigning groups, thinktanks, trade unions and private companies, particularly if the proposal above relating to codes of conduct is also adopted.

Finally, as I have indicated above, ‘lobbying’ is a very broad term which covers all sorts of interactions with those involved in policy-making.  The only realistic way to capture every instance of lobbying would be for those on the receiving end to log these meetings and other contacts.  At present Government Departments publish quarterly logs of meetings, gifts, hospitality and overseas travel involving Ministers; these could be:

  • More thorough: the list of topics discussed is cursory at best, and meetings held as a constituency MP or in a private capacity are not covered
  • Published more quickly: there is often a significant lag between the period covered and publication
  • Expanded to cover senior officials and advisers in line with the point made above.

Is the fee system proportionate and fair?

No.  In particular I would argue strongly for a lower fee for small firms.  It seems highly unfair that an organisation like Park Street Partners, with a relatively low turnover, should be charged £1,000 to register.  This feels like an entirely arbitrary figure that is in effect a tax on operating, and a significant barrier to entry to the industry for some individuals and small companies.

The fees are in any event inexplicable when the Office of the Registrar of Consultant Lobbyists at the moment has to deal with a relatively limited number of entries containing very little information.  When I was involved in the APPC some years ago the register was far more extensive but was managed by one person working part-time at very low cost.  It would be helpful to understand what exactly is paid for by the £100,000 or so spent on staff (excluding the Registrar himself) given the restricted nature of the duties undertaken by ORCL.

Of course, the fee system will have to be overhauled if, as I have proposed, the number of organisations covered by the Act is increased.  This should provide scope to cut fees overall and particularly for smaller registrants.