Scope

1.  A broad look is needed at contact between those working in the public sector and those attempting to influence their decisions. (Paragraph 13)

2.  Although many of our recommendations are relevant to the whole of the public sector, this Report necessarily concentrates on the framework within which Ministers and civil servants are lobbied. (Paragraph 14)

What is the problem?

3.  Because secret lobbying by its very nature leaves no evidence trail, there could still be a significant problem even with little concrete evidence of one. (Paragraph 36)

4.  Some of the concerns that exist around improper influence are closely linked to the power of informal networks of friendships and relationships. (Paragraph 41)

5.  The Government's encouragement of wider engagement in the policy process is to be welcomed. The challenge, however, is to ensure not just that this engagement is even-handed, but also that it is seen to be even-handed. Token engagement breeds cynicism, and is worse than no engagement at all. (Paragraph 42)

6.  Lobbyists do not want their competitors to know the detail of how they go about their business. Commitment to transparency in the world of lobbying is, and always will be, a relative concept. What this suggests is that a degree of external coercion will be required to achieve sufficient transparency across the board. (Paragraph 43)

How are these areas currently regulated?

7.  The guiding principles of conduct may not go far enough, but they are nonetheless a welcome and noteworthy step towards consistency of approach, which is certainly needed if self-regulation is to have any hope of meaningful success in such a fragmented landscape. (Paragraph 52)

8.  The APPC does not seem to attract sufficient trust throughout the lobbying industry and among its clients for it to suggest with any authority that only its members should be eligible to apply for public contracts. But the spirit of this suggestion—the notion of a single self-regulating organisation for multi-client public affairs consultancies—recognises that the current situation allows consultancies to pick and choose the rules that apply to them in a way that is incompatible with effective self-regulation. (Paragraph 57)

9.  A complaints system that was working would have produced more than three cases in the last ten years, even if the vast majority of lobbyists were operating ethically and transparently. Reprimands and "severe" reprimands, the only outcomes to have been seen in the two cases decided against members of any of the three umbrella groups (both within the CIPR), are not of a kind that would give confidence to any outsider that disciplinary processes are robust. The APPC's policy of expecting complainants to be prepared to bear the costs of an investigation, including the legal fees of the member complained against, is unacceptable: it is unique as far as we are aware in any industry complaints system and is an obvious barrier to potential complainants. (Paragraph 64)

10.  The three umbrella groups have an in-built conflict of interest, in that they attempt to act both as trade associations for the lobbyists themselves and as the regulators of their members' behaviour. (Paragraph 65)

11.  In the final analysis, what lobbying organisations refer to as "self-regulation" appears to involve very little regulation of any substance. (Paragraph 66)

12.  The Ministerial Code requires adjustment, to reflect the duty on Ministers to record within Government all offers of hospitality which a reasonable person might consider to have been made to them in their capacity as Ministers. (Paragraph 83)

13.  We welcome the proposal to publish a statement of Ministers' interests. We do not think, however, that an annual list is the best solution. Much of the information it contained might quickly become historic: even the names of some of the Ministers. We would prefer to see an online register, which could be kept regularly updated. In our view, the register should be inclusive, not exclusive. It is not always clear in what capacity a Minister is acting: as a Minister, a Member of Parliament, a party politician, or a private individual. If in doubt, an interest should be included. The test needs to be whether a reasonable person could consider that an interest is relevant. (Paragraph 84)

14.  We see no reason why the principle-based approach to gifts and hospitality adopted by Departments could not be developed into central guidance, incorporating the flexibility required to allow offers from potential contractors and from foreign diplomats to be treated differently. (Paragraph 86)

15.  We suspect that information on gifts and hospitality has not been kept across Government as rigorously as it might. (Paragraph 87)

16.  Part of the appeal of employing former ministers is the perception—accurate or not—that they will be able to offer access across government. This is particularly so when their party remains in government. (Paragraph 110)

17.  What emerges from this survey is that while the activities of lobbyists are scarcely regulated at all, there are a variety of ways in which the lobbied are subject to behavioural constraints and transparency requirements. These have developed piecemeal, however, and with different times and issues in mind. (Paragraph 119)

Regulation of lobbying abroad

18.  There are a number of very general conclusions that can be drawn from the experience of other jurisdictions:

• Lobbying can be regulated far more extensively than is the case in the United Kingdom.
• Where lobbying activity is regulated, this seems to be accepted as a fact of life by those concerned.
• In many countries, including most European countries, lobbying activity is not explicitly regulated.
• The more restrictive regimes tend to respond to an environment in which there is significant concern around lobbying practices. That in the USA is a reaction to the close association between lobbying and the financing of political activities. (Paragraph 122)

19.  The experience of other jurisdictions suggests that there is no 'one-size-fits-all' or 'off-the-shelf' solution to the regulation of lobbying and that early attempts at solutions often need subsequent adjustment. We are convinced that the system in the United Kingdom could be better tailored than it is. In the current climate of public mistrust, voluntary self-regulation of lobbying activity risks being little better than the Emperor's new clothes. (Paragraph 130)

20.  Solutions need to be adapted to different constitutional arrangements and political cultures. In the case of the United Kingdom, where there is a culture of discretion and where deals are traditionally done behind closed doors, an element of external compulsion will be needed to provide for meaningful transparency. This is shown by the experience of the Freedom of Information agenda, which could only be implemented through legislation. (Paragraph 131)

The risks of regulation

21.  The risk of regulation creating an exclusive or two-tier process is one that clearly needs to be guarded against—but we suspect that it is a risk that has been overstated. (Paragraph 135)

22.  The frankly cynical argument put to us by some lobbyists is that their behaviour should not be regulated, because if it were, it would encourage people to try to break the rules. If this theory were followed to its logical conclusion, there would be no regulation of any activity whatsoever. It is true that external regulation (as opposed to culture change) tends to encourage an adherence to the letter rather than the spirit of the rules, but we see this as an argument for well-framed regulation, rather than an argument against any regulation at all. (Paragraph 137)

23.  We again think that this risk (that regulation could stifle input into the policy-making process) is over-stated. The advantages of being able to lobby decision-makers on issues of concern are so obvious, that only the most restrictive or onerous kind of regulation could dissuade interested parties from making their views known to Government. (Paragraph 141)

24.  This (bureaucratic overload) is yet another risk that we believe to be over-stated, though it is one that clearly needs to be guarded against. If sensibly framed, regulation would simply require those involved in the process of lobbying to provide information which should already be in their hands. (Paragraph 142)

Proposals for reform

25.  What is clear to us is that reform is necessary. Lobbying the Government should, in a democracy, involve explicit agreement about the terms on which this lobbying is conducted. The result of doing nothing would be to increase public mistrust of Government, and to solidify the impression that Government listens to favoured groups—big business and party donors in particular—with far more attention than it gives to others. Measures are needed:

• to promote ethical behaviour by lobbyists, with the prospect of sanctions if rules are broken.
• to ensure that the process of lobbying takes place in as public a way as possible, subject to the maximum reasonable degree of transparency, and
• to make it harder for politicians and public servants to use the information and contacts they have built up in office as an inducement to other potential employers. (Paragraph 144)

26.  We do not believe that transparency requirements are ever likely to be enforceable through self-regulation. There may, however, be a role for a self-regulatory organisation in promoting ethical behaviour by those involved in lobbying. This will depend, however, on whether lobbyists are genuinely willing to be seen to be regulating themselves effectively. If they are, there are a number of simple and obvious steps that they could take to improve the current situation:

i.  Establish a single umbrella organisation with both corporate and individual membership, in order to be able to cover all those who are involved in lobbying as a substantial part of their work.

ii.  Ensure that people from outside the lobbying world with a track record in regulation and in business ethics are involved in running the organisation.

iii.  Establish a clear separation between promoting and representing those involved in lobbying activity, and regulating that activity.

iv.  Subject the standards of the members of the organisation to more rigorous scrutiny, including external validation. (Paragraph 145)

27.  The public affairs industry should institute an externally assessed and validated standard—a kind of kite mark—which its members should be required to meet. The standard should integrate ethical issues, structural issues and service quality issues, all of which are interdependent. (Paragraph 145)

28.  Such a standard would only be worthwhile if it were assessed and validated externally by a trusted body outside the industry, and if companies and individuals did on occasion fail the tests that were set. It would also only be of value if companies knew that there was a business advantage in achieving it or in employing people who had achieved it. (Paragraph 146)

29.  We would not expect all of those individuals and groups involved in lobbying decision-makers to belong to this body. We would, however, expect all of those involved in lobbying decision-makers on a regular and continuing basis to perceive an overwhelming advantage in membership. This would include campaigning organisations and in-house corporate lobbyists as well as self-professed public affairs consultancies. (Paragraph 147)

30.  The body's effectiveness would be judged in part by its readiness to sanction those who fail to meet its criteria. If the perceived advantage of membership is strong enough, suspension and expulsion will be powerful sanctions. In some circumstances other sanctions, including the power to fine and to 'name and shame' might also be needed. (Paragraph 148)

31.  For the lobbying industry to implement these recommendations will require rivalries to be set aside in the interests of genuine joint commitment to effective self-regulation. This suggests an unprecedented unity of purpose. It may concentrate minds to consider the alternative. We recommend that the Government should allow six months following the publication of this Report to see whether concrete and consistent progress can be made. Failing this, we recommend that the Government should bring forward a short bill to provide in statute for the kind of organisation we have described above, to be funded by lobbyists. (Paragraph 149)

32.  While it would be of genuine interest to be able to see how much money is being targeted at particular lobbying campaigns, it is doubtful that it is possible to obtain reliable information of this kind through a register. (Paragraph 166)

33.  It is important to start from first principles when deciding what information needs to be included in a register of lobbying activity in the United Kingdom and how this information should be gathered. (Paragraph 167)

34.  We can identify five key principles for a register of lobbying activity:

a)  it should be mandatory, in order to ensure as complete as possible an overview of activity.

b)  it should cover all those outside the public sector involved in accessing and influencing public-sector decision makers, with exceptions in only a very limited set of circumstances.

c)  it should be managed and enforced by a body independent of both Government and lobbyists.

d)  it should include only information of genuine potential value to the general public, to others who might wish to lobby government, and to decision makers themselves.

e)  it should include so far as possible information which is relatively straightforward to provide—ideally, information which would be collected for other purposes in any case. (Paragraph 168)

35.  In our view, to meet the last two of these key principles, the following information would need to be provided:

a)  the names of the individuals carrying out lobbying activity and of any organisation employing or hiring them, whether a consultancy, law firm, corporation or campaigning organisation.

b)  in the case of multi-client consultancies, the names of their clients.

c)  information about any public office previously held by an individual lobbyist—essentially, excerpts from their career history.

d)  a list of the relevant interests of decision makers within the public service (Ministers, senior civil servants and senior public servants) and summaries of their career histories outside the public service.

e)  information about contacts between lobbyists and decision makers—essentially, diary records and minutes of meetings. The aim would be to cover all meetings and conversations between decision makers and outside interests. (Paragraph 176)

36.  We recommend that all multi-client organisations involved in public affairs should be required to publish in a timely and transparent way the names of all clients whose interests they represent to the government and other public bodies as well as all clients to which they give advice on how their interests would best be represented to the government and other public bodies. (Paragraph 178)

37.  Gifts and hospitality above a token value received by all Ministers and all civil servants should be recorded and made publicly available. The Cabinet Office should provide central direction to Departments and Agencies to ensure that consistent processes are being followed. (Paragraph 182)

38.  A first step towards greater transparency, and one that could be achieved without legislation, would be to publish routinely the information about ministerial and other high-level official meetings with outside interest groups which is currently produced only in response to specific FoI requests. (Paragraph 184)

39.  Lunches are the kinds of contacts which can be of as much potential concern as formal lobbying meetings on the record with business or other interest groups. (Paragraph 186)

40.  We ask the Government to confirm that there remains a requirement to record meetings between Ministers and outside interest groups. (Paragraph 187)

41.  Our proposal for a mandatory register involves placing new obligations on individuals and organisations outside the public sector: it will therefore necessarily involve legislation, and cannot be implemented overnight. Experience from other jurisdictions suggests, however, that such registers can be made to work relatively swiftly and in the public interest, and that they do not act as a barrier to free communication between Government and the electorate. (Paragraph 188)

42.  There are also steps that the Government could take now and without legislation to make information about its meetings with outside interest groups publicly available. There is a perception that real government takes place behind closed doors. This may be partly because of media portrayal or innate distrust of those in power. But there seems to be a culture of secrecy in some parts of government beyond that which is strictly necessary, and beyond that seen in some other countries. Cultures and attitudes need to change. Government should and could be more open and more transparent about how it formulates policy and takes decisions.(Paragraph 189)

43.  There is a continuing need for a strong Advisory Committee to instil confidence both in the public and in those whose careers they can affect, that processes are followed and decisions taken both robustly and fairly. There would be benefit to having an Advisory Committee that was more representative of society at large. Under these circumstances, the Government should consider providing some remuneration to members of the Advisory Committee, and should seek a wider field of applicants than might have been the case in the past. (Paragraph 192)

44.  We hope that, when they are appointed, the new chairman and members will undertake a thorough review of the Advisory Committee's internal processes, to ensure that their advice, particularly on lobbying, is as unambiguous as possible in its meaning, and to provide enough transparency to allow the public and media the opportunity to assess whether or not this advice has been followed. (Paragraph 193)

45.  The new Advisory Committee also needs to be given the opportunity to review the Business Appointment Rules themselves. (Paragraph 194)

46.  We are strongly concerned that, with the rules as loosely and as variously interpreted as they currently are, former Ministers in particular appear to be able to use with impunity the contacts they built up as public servants to further a private interest. We think that this is unacceptable, particularly where they continue to be paid from the public purse as sitting Members of Parliament. The rules need to reflect this. (Paragraph 195)

47.  There are limits to how far this can be taken. It would not be desirable or in all probability legally possible to prevent a former health Minister from taking up a post elsewhere which took advantage of their expertise in health issues. What we would like to ensure, however, is that consistent rules are strictly applied so that former Ministers and other public servants are effectively prevented for an extended period of several years from using the contacts and sensitive information that they acquired in public office to further their own and others' private interests. (Paragraph 196)

48.  Government needs to be aware of the scale of transfer into (and indeed from) specific businesses and sectors, so as to be able to take measures against the capture of the public interest by the interests of those businesses or that sector. (Paragraph 197)