[1st Allocated Day]
[Relevant documents: The Seventh Report from the Political and Constitutional Reform Committee, on the Government’s Lobbying Bill, HC 601, and the First Report from the Committee on Standards, on the Government’s Lobbying Bill, HC 638.]
Consideration of Bill, as amended in the Committee
I should say at the outset that I do not intend to move new clause 1, although I want to take the opportunity to raise matters that concern it and to support Government amendments 28 and 29. Similarly, I do not intend to press amendment 1 to a vote.
I am rather appalled, Madam Deputy Speaker, that I have had to be pulled up on that procedural matter in my 21st year in this House.
New Clause 1
Bill of rights
‘Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.’. —(Mr Jenkin.)
Brought up, and read the First time.
I want to use this opportunity to draw the attention of the House to the report by the House of Lords and House of Commons Joint Committee on Parliamentary Privilege, which was produced only a month or two ago. I believe that it sets down the terms on which we should consider parliamentary privilege, its importance and its relevance. In particular, chapter 2, on general principles, draws attention to privilege’s continuing relevance and value and notes that parliamentary
“proceedings must be immune from interference by the executive, the courts or anyone else who may wish to impede or influence those proceedings in pursuit of their own ends.”
The principle of parliamentary privilege rests on the concept of exclusive cognisance. That is referred to at the beginning of schedule 1, which quotes an extract from the 1689 Bill of Rights and refers to any matter that
“otherwise affects the scope of the exclusive cognisance of Parliament.”
The term “cognisance” might seem rather archaic, but it encapsulates what privilege is about. That is, as our report states:
“Parliament enjoys sole jurisdiction—normally described by the archaic term ‘exclusive cognisance’—over all matters subject to parliamentary privilege.”
That concept underpins parliamentary privilege. As we explain:
“Thus Article 9 of the Bill of Rights, the most important statutory expression of parliamentary privilege, states that ‘the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament’.”
We go on to explain that the most important part of that is that
“both Members and non-Members… are not legally liable for things said or done in the course”
of our parliamentary proceedings,
“nor are those outside who are adversely affected by things said or done in Parliament able to seek redress through the courts.”
That causes a lot of concern in some people’s minds because it is, in fact, an exception to the rule of law, which seems to be a fundamental principle of our democracy. But as one of our witnesses, Adam Tucker, a lecturer in law, told us:
“The rule of law is not, however, an absolute principle. Its claims must be balanced against the competing claims of other principles. One of those competing principles is the separation of powers”.
It is even accepted by the European Court of Human Rights that the immunity of parliamentary proceedings is an important fundamental constitutional principle. Its only limitation is a doctrine that has been developed by the courts, known as the doctrine of necessity. That is the test that the courts apply. If Parliament claims privilege, the courts will apply the doctrine—is it necessary to allow Parliament this protection in order that it should be able to carry on its proceedings?
We are engaged in the possibility, in this Bill, of legislating on parliamentary privilege, and this is the most important part of our report in respect of this part of the Bill. As we learned in the Chaytor case, the extent of parliamentary privilege is ultimately a matter for the court, but the courts, as we say in our report, can only interpret and apply the law; Parliament alone can make the law. And as the Lord Chief Justice of England and Wales, Lord Judge, in oral evidence, said to us,
“ultimately it is Parliament that is sovereign”.
That was demonstrated in the Stockdale v. Hansard case, when Hansard was sued for reporting Parliament and we had to pass the Parliamentary Papers Act 1840, which afforded the immunity of Parliament to the proceedings as reported in Hansard so that is on a statutory basis.
It is always a choice for Parliament whether to legislate in order to express what we hold should be immune from the courts, but there are significant disadvantages in legislating. First, parliamentary privilege has to evolve as Parliament evolves and as the law evolves. If we were to try and define what parliamentary privilege is in detail—well, all the advice that our Committee had was not to try and do so. Indeed, were we to try and do so in statute, we would be tempting the courts into limiting parliamentary privilege, perhaps far further than we intended.
It seems to me that the kernel of the problem is that this is a Bill to regulate lobbying. An important part of an MP’s job is to lobby for his or her constituency and constituents, and we are paid salaries, so in that sense we are paid lobbyists; but surely that part of our role, like every other part of the role, must be immune from the interventions of the court and must not be in any way modified by the legislation before us.
I hear what my right hon. Friend says, but it is not generally asserted that, for example, correspondence between him representing his constituents and a Minister is privileged, because it would be difficult to prove that that constituted proceedings in Parliament. I do not think, therefore, that we can seek to extend parliamentary privilege in the Bill. What we do as our job to represent our constituents is clearly not intended to be included in the regulation of lobbying. It would be intolerable if Members of Parliament had to register as lobbyists in order to represent their constituents, or indeed represent any other interests. I will return to that point later, if my right hon. Friend will forgive me.
The hon. Gentleman will recall that in the previous Parliament there was concern about the way that certain Members were behaving, and two were summoned to the Committee. One was receiving £75,000 to represent a company; the other was receiving £105,000. They received those sums entirely to lobby on behalf of a commercial organisation. One of their excuses was, “The organisation has employees in my constituency.” But surely it is the core job of an MP to lobby for his constituents, and if MPs are offered money to do it, that should be seen for what it is, which is a bung, an inducement or a bribe.
I recognise the sentiment the hon. Gentleman expresses, and I share his outrage at any abuse that he suggests took place, but we have our own rules in this House. We adjudicate on these matters, and in fact we apply very harsh terms to people we believe to be guilty of paid advocacy. For many decades, since 1945 or even earlier, paid advocacy has been utterly abhorrent to this House. No longer do we have MPs sitting in the railway interest, as they did during the 19th century. The important distinction here is that we regulate that from within this House, as proceedings of this House. We do not need or require the courts to interfere in those matters. I do not think we are providing any leniency to Members that the courts would not also afford. Indeed, it might be far harder to obtain a prosecution in court for a matter such as that than to create in this House the right atmosphere of discipline and self-discipline that we expect from all hon. Members.
I am following my hon. Friend’s argument closely. Rather than my standing here in the railway interest, I stand in the anti-railway interest in respect of HS2, hoping that the Government will see sense and abandon the project. Will he confirm that there should be nothing in the Bill that would restrict my standing up on behalf of my constituents against HS2, or restrict my constituents in lobbying this place against that project?
I wholly agree with my right hon. Friend. I just want to emphasise that the amendments I am speaking to deal with the narrower question of privilege, although I will return to the risk, which I think the Minister must address, of the wider drawing in of Members’ activities into the scope of the Bill.
Further to that exchange, does my hon. Friend not see my case, which is that if the Bill is in danger of restricting our privilege to write letters on behalf of our constituents as properly paid advocates for our constituents, we need to stop that happening? Otherwise, my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) will not be able to campaign against something in her constituency by writing to a Minister without registering under the Bill.
I will return to that matter, but when my right hon. Friend employs the word “privilege” in that context, he is not employing it in terms of parliamentary privilege. It is not a parliamentary privilege that protects our ability to write to Ministers on behalf of our constituents. That is not covered by parliamentary privilege.
With the indulgence of the House, I wonder whether I might quote the Lord Chief Justice when he made it clear that we should, if possible, avoid legislating on matters regarding privilege. He said:
“Parliament has to decide whether it has sufficient privilege to be able to conduct its business in the way that Parliament wishes. If you have reservations about that, you have to produce a system that enables you to have the conditions under which you can perform your responsibilities properly. If you had no real reservations about it, I would not go down the legislative route that defined, semi-defined, subdivided, allowed for, or exercised this and that, because you would end up in interminable discussions, and, in court, interminable arguments, about what that really meant. Unless you are dissatisfied with the way in which your privileges operate, I would leave this well alone.”
By that, I think he means that the courts are predisposed to defer to proceedings in Parliament, whatever statutes may say.
The 1689 Bill of Rights is one of those special statutes in our legal system that is implicitly present in every statute. We do not need to repeat what is in the Bill of Rights 1689 in every statute in order to immunise it for the purpose of parliamentary privilege. The one exception that we have made is in respect of the IPSA legislation—the Parliamentary Standards Act 2009—in which we inserted the words that I am proposing in my new clause:
“Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”
I submit that the House of Lords put that clause in the Parliamentary Standards Bill in rather extreme circumstances. When that Bill arrived in this House, it seemed that it was going to go into areas that were previously considered part of the exclusive cognisance of this House. It was going to refer to disciplining Members for what we did in this House, and that was going to draw parliamentary proceedings into the consideration of the courts in a way that was unprecedented. All that was eventually taken out by the House of Lords. In those exceptional circumstances, when the courts were under enormous public pressure to take more draconian action following the expenses fiasco, it was reasonable for Parliament to put that clause into that Bill, but generally we should try to avoid putting any reference to the Bill of Rights 1689 into legislation.
My amendment 1 suggested that we delete paragraph 1 of schedule 1. I note that the Government have now proposed that we remove both paragraph 1 and paragraph 2 of schedule 1. Paragraph 1 removes language which is lifted from the Bill of Rights 1689, without referring to the 1689 Act. Because there is no reference to it, paragraph 1 does not place the wording in the special category in which the Act exists.
My hon. Friend is reaching the nub of the issue. With something as delicate as article IX of the Bill of Rights, there is nothing worse than trying to produce another version of what it is supposed to mean, which is bound to cause confusion and uncertainty and raise the question of interpretation, making it more likely to be adjudicated by the courts, whereas the Lord Chief Justice said that that should be left well alone.
My hon. Friend has, typically, put more pithily than I could a complex legal argument. By drawing the courts into adjudicating on these words, we would be devaluing the 1689 Bill of Rights. That would be irresponsible. If the courts start arguing about all this, we will have to legislate on the matter and risk losing our historic immunity.
Our conclusions, clearly stated in the report, were:
“The extent of Parliament’s exclusive cognisance changes over time, as the work of Parliament evolves”
and it would be impractical
“to draw up an exhaustive list”.
“Where there is uncertainty in a case brought before the courts, the extent of Parliament’s exclusive cognisance will be determined by the courts.”
We stated that
“if Parliament were to consider that its privileges had been reduced to the extent that it could no longer effectively perform its core work, it could in the last resort change the law”,
but finally that
“legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts.”
Neither of those last two conditions exists. There is no uncertainty.
We made further recommendations about how our 1689 privileges could be clarified. It is fashionable to believe that over the years parliamentary privilege has been eroded by the courts. That is a two-way street. In certain circumstances, Parliament might exercise privilege in a manner that has recently been ruled to be subject to court proceedings. It would depend on the circumstances, and we need to hold out the prospect that in extremis we would exercise privilege in a way that the courts might not expect us to do, given the way that privilege has been exercised in the past.
We no longer send out a posse of soldiers to arrest people on behalf of Parliament, and I do not suppose we will return to that in these democratic days, but who knows what will happen in the future? Parliament should reserve its right to assert its privilege in order to be able to conduct its proceedings immune from the courts, immune from the Executive, under any circumstances.
My hon. Friend and my hon. Friend the Member for Stone (Mr Cash) tabled amendment 1, which is exactly the same as amendments 28 and 29 tabled by the Government. Is my hon. Friend saying that he no longer thinks amendment 1 and therefore amendments 28 and 29 are appropriate and that new clause 1 should be the preferred way forward?
I have moved new clause 1, but I shall wait to hear what the Minister says in response to the debate. I suspect that I will be greatly reassured by what he says in respect of parliamentary privilege, and that by removing any reference to the Bill of Rights or any wording thereof, the two Government amendments put this Bill back in the normal category of all Bills, that privilege applies and that the unstated presence of the 1689 Bill of Rights looms over this Bill as it does over any Act and our privileges are therefore secure, there is no ambiguity about that and it is accepted by the courts.
Indeed, I do not expect that the courts wish to be drawn into adjudicating on detailed matters of privilege. It remains uncomfortable and untidy that hon. Members might try to avail themselves of parliamentary privilege when they are not entitled to it and we end up with embarrassing court actions, but that is not an excuse for legislation in this area. The courts have demonstrated, as we saw in the Chaytor case, that they are capable of disposing of those cases in a manner that we would find perfectly acceptable.
Echoing the comments of my right hon. Friends the Members for Wokingham (Mr Redwood) and for Chesham and Amersham (Mrs Gillan), I still have concerns about the implications of the Bill. These measures were drawn up, presumably, to protect Members of Parliament. Paragraph 2 of schedule 1 states:
“A Member of Parliament who makes communications within section 2(3) on behalf of a person or persons resident in his or her constituency does not, by reason of those communications, carry on the business of consultant lobbying.”
How have we written a Bill that could possibly construe Members of Parliament going about their ordinary course of business as carrying out consultant lobbying? Yes, we are paid by Parliament and therefore we are paid, and yes, we are paid, in part, to represent our constituents, but is it assumed that any court might by accident include us in the definition of lobbying and therefore require us to register as lobbyists in order to represent our constituents?
I am pleased that that is being taken out because it was absurd to confine the exemption merely to representing residents in our constituencies, as defined by section 4 of the Representation of the People Act 1983. If I were representing a 15-year-old, I would be caught by the Act. It was an absurd piece of drafting. Why was it necessary to put it into the Bill? I hope the Minister will be able to give us an assurance that the Government are taking it out of the Bill now. That is the right thing to do.
The hon. Gentleman has made an extremely interesting speech, which thus far has touched on issues surrounding Members of this House. Has he given any thought to the possible implications of the Bill as originally drafted, and as it will be without the offending paragraphs if the Government carry the House, for Members of the other place?
I note the earlier debate on the guillotine. All I can say is thank God for the other place. The hon. Gentleman raises a point that Members there may want to address, though if the Minister can give us the assurance that we need that he has complete confidence and has had advice that no court could possibly construe a Member of Parliament as a lobbyist, I imagine that would also apply to a Member of the other place. But the hon. Gentleman raises a perfectly valid point.
The point, of course, is that we are paid by Parliament to serve the national interest, and to exercise our independent judgment on behalf of that interest, to represent our constituents and to play our part in proceedings as members of political parties, because without parties democracy would not function. Will the Leader of the House give an assurance that all the normal dealings of a Member of Parliament, whether or not he or she is paid or sponsored by outside interests in the usual legitimate way, will not fall within the scope of the Bill and that we will not be required to register as lobbyists? It is important that he gives that assurance so that the courts are clear that that was the intention of the Act.
It is a pleasure to follow the hon. Member for Harwich and North Essex (Mr Jenkin), who made an extremely interesting speech to which I listened carefully. Like him, I am encouraged by the Government’s decision to table the amendments deleting the two offending paragraphs to schedule 1. We tabled amendment 78 as a probing amendment, but I do not intend to move it if the Leader of the House is suitably convincing when he comments on Government amendments 28 and 29. Nevertheless, there is a series of questions that merit asking about how we got to this point and whether the amendments will resolve all the concerns.
I will deal first with some of the context of these discussions. Until the Government tabled their amendments, it appeared that they were determined to write into legislation a set of paragraphs that would have meant more Members of Parliament being affected by the Bill than actual lobbyists being registered under it. Lynton Crosby and all those in-house energy company lobbyists to whom the Government listen will not have to register because the Bill is still so badly drafted, but Members of Parliament raising concerns, perhaps on behalf of people under the age of 18 or asylum seekers fleeing torture who are resident in their constituencies, might have had to register.
Does the hon. Gentleman agree that it is very important that a shadow spokesman should be able to represent any interest group, company or activity in the country as they see fit and still receive their parliamentary salary without falling foul of the lobbying rules?
I am grateful to the hon. Gentleman for taking a second intervention so quickly. Will he add to his list the peculiar situation we have in Northern Ireland, where there are five absentee Sinn Fein Members? MPs who do take their seats receive communications from those five constituencies asking us to make representations to various Ministers. I would hate to be labelled a consultant lobbyist simply for acting properly on behalf of constituents who are not represented in this House by a sitting MP.
The hon. Member for North Down (Lady Hermon) has made an extremely valuable point. It shows how narrow a view some of the people who draft this legislation have of what Members of Parliament actually do. They think that we are simply a post box for our constituents. They do not understand that we are meant to exercise our judgment and represent interests from outside our constituencies as well as views and opinions, and indeed the national interest. They have no conception of that, which I am afraid is reflected in the Bill’s original drafting.
May I raise with my hon. Friend a question that he himself has raised? There is a difference between this House and the other House. There was a recent investigation into the conduct of a Member of the House of Lords who was behaving in a way that would be condemned in this place as reprehensible, but the Lords have not come to a final conclusion. It relates to a Lord who was campaigning and lobbying on behalf of the Cayman Islands. The excuse given was that there is a difference between the two Houses because Members of the House of Lords are not paid and so are entitled to go around making money by hiring themselves out to the highest bidder. Surely that is a matter of public scandal that must be addressed.
If my hon. Friend, who is an expert on these questions, will bear with me, I will come later to some of the issues relating to the House of Lords and the extent to which the Bill affects the performance of its Members.
I accept that it was probably not the intention of the Leader of the House that Members of Parliament should be affected in the way that I and other Members who have intervened have described and that that was a result of the Bill being so badly rushed. Had Members on both sides of the House not raised concerns, these sensible amendments would not have been put forward by the Government.
As I indicated, I want to ask a couple of questions about the impact of the Government’s amendments and whether any lessons have been learnt from the process by which the offending paragraphs ended up in the Bill. As several Members made clear on Second Reading, and as the standards committee spelled out, there was a series of concerns about the inclusion of paragraphs 1 and 2 to schedule 1 and their impact on parliamentary privilege. The Committee’s helpful report noted the evidence that had been received by the Joint Committee on Parliamentary Privilege in March this year. The evidence from Lord Judge underlined the risk of including specific exemptions for MPs in this, or indeed any, Bill. It also underlined the concern that future legislation relating to Members without such an exemption might inadvertently affect parliamentary privilege.
Did the Leader of the House consider that report from the Joint Committee on Parliamentary Privilege, and if not, why not? Did he take any advice on the inclusion of those paragraphs before signing them off and presenting the Bill to Parliament? Does he now accept that pre-legislative scrutiny, and perhaps a further period of public consultation with the industry and its stakeholders, might have prevented such a considerable error?
A further concern the Joint Committee on Parliamentary Privilege highlighted relates to the inclusion of a definition of who is resident in an MP’s constituency using the 1983 Act’s description of who can and cannot vote.
At least eight or nine major charities are headquartered in my constituency. Does he believe that I would be prevented from representing their interests because they, as corporate bodies, are not resident? How does he see that affecting my ability to represent those charitable interests?
I think that I did the hon. Gentleman an enormous service back in the 2005 general election, but I am happy to try to be of service to him now. He has rightly raised a concern about whether he would have been able to do the job he wants to do on behalf of those charities had the Government not finally brought forward their amendments.
I am most grateful to the hon. Gentleman, who has been very generous in giving way. I have taken a great interest in autism and introduced a private member’s Bill that ultimately became an Act. I worked with the National Autism Society, which provided me with back-up, information and material for distribution among colleagues. I worry that the Bill would inhibit any MP in acting that way. I was acting not on behalf of a constituent but on behalf of the cause, and will continue to do so. I want to make sure that nothing stands in the way of that work of an MP.
I commend the hon. Lady for her work with the National Autism Society, not least because it does an excellent job but also because a former member of my staff works for it. Whether her work with the National Autism Society would have been called into question by the Bill is an extremely pertinent point. It is a worry that Ministers rushed out the Bill, and it appears—this is why I have asked the question of the Leader of the House—that not very much advice was taken from the House authorities before the Bill was published. As a result, considerable concerns have been raised by Members on both sides of the House, detracting inevitably from the House’s ability to look at other parts of the Bill.
Will the Leader of the House set out with whom he, his ministerial colleagues or others involved in drafting the Bill consulted before inserting the offending paragraphs? I ask because it has not always been easy to track which Minister and which Department was leading on this Bill and it would be useful to know whether the Leader of the House has considered whether a repeat of the error might be avoided in the future. I emphasise gently to the Leader of the House that the mistake might have been avoided had there been pre-legislative scrutiny, a further period of public consultation and a proper attempt to involve the Political and Constitutional Reform Committee in particular.
I turn now to a question that I raised in an intervention on the hon. Member for Harwich and North Essex: the impact of the Bill on the other place. As the Bill is currently drafted, a Member of Parliament’s pay could also be construed—a point the right hon. Member for Wokingham made—as payment for third-party consultant lobbying. In the other place, peers are given an allowance and are not paid a salary. There is an expectation that those in the other place can earn a living beyond their work there. The House of Lords code of conduct is currently being reviewed by a sub-committee of the Joint Committee on Parliamentary Privilege. It would be helpful to get a specific assurance from the Leader of the House, or his colleague the Deputy Leader, on the extent to which, if at all, the Bill as drafted, and as it would be if the Government amendments were carried, would affect the other place. These are clearly questions that members in the other place will want to explore, quite rightly. But we also have a responsibility to think through some of the issues around the other place. It would be helpful to hear from the Leader of the House on the extent to which he has considered this question.
I am sorry for inhibiting my right hon. Friend the Leader of the House for a short moment.
I just want to endorse what my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said and draw attention to the real reasons why this matter is so important. I have already made the point that the proposal would simply create confusion and the extreme likelihood that there would be interpretations by the courts as a result of a difference of language between what is contained in schedule 1 and the wording of article 9 of the Bill of Rights. It is best left alone; that was the essence of what the Lord Chief Justice said.
As someone who served on the Joint Committee on Parliamentary Privilege with my hon. Friend the Member for Harwich and North Essex, I want to make something absolutely clear. Curiously enough, the word privilege is almost a misnomer. It is not a privilege; it is a necessity. I would say that of any Member of this House. We cannot have freedom of speech to protect our constituents without having the right to be able to say whatever needs to be said in this House to protect them. That is whether in relation to HS2, on which I share the views of my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan)—I am totally against it—or anything else. The absolute necessity for maintaining the right of an MP to speak within the framework of the rules of the House must not be interfered with by any court or any outside agency. We have to have that right as that is the essence of our democracy.
What we are really discussing here, apart from the very important question—I concede that it is important—of not getting into a conflict with the courts or having differences of emphasis or wording that could give rise to interpretations, is that it is absolutely essential to remember that these issues are for the benefit of our constituents and the national interest.
In 1999 the Joint Committee on Parliamentary Privilege —our predecessor committee—said:
“Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances great and small can be aired regardless of the power or wealth of those criticised.
In order to carry out these public duties”—
I repeat the word “public”—
“without fear or favour, parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims.”
The Irish Government argued recently at the European Court of Human Rights that
“parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen but as a fundamental liberty.”
I could enlarge on this but I do not need to do so.
I am most grateful to my hon. Friend for giving way at this point. He says “around the world”. It is often thought that parliamentary privilege is unique to our rather odd partly written constitution, where the fundamental principles are accepted and not written down. That is not the case. Every parliamentary democracy in the world grants its legislative authority some kind of immunity in order to ensure that it can carry on its function of holding the Executive to account, and legislating and discussing with impunity. It is not unique to us; it exists in America, Australia and elsewhere. They all wrestle with this problem of how to make it work.
That is the very point I am seeking to make. I would also point out that a number of other countries have got themselves into serious turmoil and trouble where the right of the people to speak freely is inessential and incidental to the manner in which their constitution is construed. In many countries, whether dictatorships or quasi-democracies, the inhibitions on the freedom of their members of parliament to speak as they must on behalf of the national interest or on behalf of their constituents is constrained by a lot of activities which, in effect, put them in fear. It is precisely because this House as a whole ensures, through its own regulation of the behaviour of Members, that that freedom is maintained, that we can guarantee that we can serve our constituents in the national interest.
That is all I need to say, Mr Deputy Speaker.
Tagged on to this debate is a report by the Committee on Standards and Privileges, which I chair, that we published on the day of the Bill’s Second Reading. It was all a bit of a hurry because of the Government’s haste to get these provisions into Parliament. On 18 July I wrote to the Leader of the House with some major concerns that we had about the Bill’s implications for Members of Parliament and the consequential implications for the codes of conduct—our own rules in relation to Members’ activities.
The House of Commons has long been concerned about lobbying. As early as 1695, the House resolved:
“The Offer of any Money, or other Advantage, to any Member of Parliament, for the promoting of any Matter whatsoever, depending, or to be transacted, in Parliament, is a high Crime and Misdemeanour, and tends to the Subversion of the Constitution.”
Successive resolutions have restricted what Members are permitted to do. The current code of conduct states:
“No Member shall act as a paid advocate in any proceedings of the House.”
Indeed, the “Guide to the Rules relating to the Code of Conduct of Members” makes it clear that prohibition on advocacy is not limited to proceedings in the House or approaches to Ministers but extends to approaches to colleagues and to any servants of the Crown. Consultant lobbying is usually understood to consist of the acceptance of money in direct return for lobbying activity. Under the code of conduct as currently written, this would almost certainly be a breach of the advocacy rule. We noted that the requirements for the registration of Members’ financial interests are far more detailed than the Bill’s requirements for entries in the register of consultant lobbyists. There was grave concern that had it remained as first published, there would have been major conflict between Members of this House and organisations outside.
We recognised that although Members are permitted to have outside interests, a Member who carried out consultant lobbying would be breaking the current rules of conduct of the House. None the less, we also recognised that that could change if the House changed its rules to permit such activity, though we considered that to be extremely unlikely. If that were the case, Members would then not be immune from the general, nor should they be. If the advocacy rule were ever rescinded, a Member who acted as a consultant lobbyist should be subject to the same rules as any other such lobbyist.
We had to draw up the report very quickly because of the timetable that we have had for the Bill. We brought up two major concerns in our conclusion. First, we said:
“In our view, the difficulties about the way in which the legislation applies to Members of Parliament would be swept away if paragraph 2 of Schedule 1 was removed.”
The Government’s amendment 29 does that, I am pleased to say. As has been clearly pointed out in the debate, under the paragraph I would be potentially restricted to lobbying the Secretary of State or a senior civil servant only on the basis of a constituent having contacted me about an issue. That would be nonsensical. It would mean that to be able to do the work that I have been doing on public health for many years in this Chamber, I would first have to get a constituent to write to me about it. It could also affect my ability to go to a recognised charity that is concerned about public health issues and work with it in the hope of getting more effective legislation. We all do that, as the right hon. Member for Chesham and Amersham (Mrs Gillan) said.
I was deeply concerned, and remain so, about the registrar’s powers to decide on the powers of consultant lobbyists. Numerous people pointed out to us in written evidence that, in effect, there was no consultation between the registrar and Parliament about the rules that could be brought in and about lobbying in relation to constituents. We saw a great danger that, as a consequence, there could be conflict not just with the registrar but with the law, which would potentially become involved and get mixed up in our rules.
Secondly, we said:
“We consider it necessary to make clear that Members’ ordinary work is not caught by the Bill.”
In our correspondence during the few weeks up until 3 September, the Leader of the House clarified that that was to be the case. We also said that the Bill should state that
“reference to payment does not include a reference to the salary”
of a Member of Parliament. To the Government’s credit, that was taken out in Committee and during the early proceedings on the Bill. It was fairly well clarified that neither the registrar nor anybody else could say that someone’s salary for being a Member of this House could be construed as being a payment for lobbying.
On those two issues, I am quite happy with the action that the Government have taken, as is, I am sure, the rest of the Committee. However, this is hasty legislation that has been thrown into the public domain. Like my hon. Friend the Member for Nottingham North (Mr Allen), I came back a day early and gave evidence to his Committee on this matter, although we were all brought back anyway on wider issues. These things need to be better thought out.
As an individual Member,I have further concerns that my Committee did not much look at, such as the powers of the registrar, which could mean that we end up with conflict. I am worried about the effect on charities, be they locally or nationally based. Charities play a major role in lobbying us as Back Benchers, as opposed to Front Benchers, about what should or should not be happening in legislation. If we are not able to be lobbied by charities and others, we will just become creatures of the Executive, who will be telling us what should and should not be happening. That would be unhelpful.
I thank the Government and the Leader of the House and his team for paying attention to the report that my right hon. Friend put together. That shows that it can be done. We improve legislation the more we talk and the more we listen. This is a very good example of that, and I hope that there will be many more examples to come.
On the two issues that we were concerned about, the Government have seen sense. This hasty piece of legislation has been changed so that we, as Members of Parliament, are not prevented from representing our constituents on wider issues. The day this Chamber can listen only to advice coming from the Executive, we may as well be in Stalinist Russia, and that is not something that I would feel comfortable with.
A couple of Opposition Members have raised the issue of paid advocacy and I want to reassure anyone following our debate that no one in this Chamber is saying that MPs should be allowed to receive top-up money from outside this House and then advocate the cause of those paying them. That is clearly wrong. It is against the rules and nothing in the Bill would facilitate it. I think we all agree on that, so that argument is a red herring.
The issue we are debating is the crucial one of the legitimate role of an MP and whether it can continue untrammelled by a Bill that could inadvertently capture legitimate things that an MP does. If the Leader of the House is going to guide us to reject the new clause, I want reassurance that the lobbying element of an MP’s job will be completely untouched by the way in which he wants the Bill to end up. In moving the new clause, my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) made it clear that he is trying to resolve the issue of the legitimate work of an MP.
A very important part of an MP’s job is to be the chief lobbyist for their constituency but, as colleagues have said, we may also wish to be a lobbyist for another interest group that is not based in our constituency. It may be a very important part of a shadow Minister’s job to represent an industry, charity or group of underprivileged people who are not in their constituency, in order to shape national policy. Individual Members may wish to pursue similar themes, even if they are not prominent in their constituencies. It enriches our debates and makes for a fairer society if anyone from outside this House can find MPs who support their cause and who can be their advocates. We are lobbyists for all sorts of groups and interests throughout the country, whether they are in our constituencies or not. It is very important that a court or external body does not assume that, because we are paid a salary and because we lobby Ministers on behalf of the interests of people and companies throughout the country, we are subject to the rules under discussion.
I agree with my hon. Friend the Member for Stone (Mr Cash) that we are not seeking special privilege. We are saying that this Bill is designed to stop abuse of the lobbying system and I want a reassurance from the Leader of the House that it has not been worded in a way that inadvertently could trap MPs as if we were an abuse of the lobbying system, when the healthy expression of lobbying, through and of MPs, is fundamental to our democracy. I think that view is shared throughout the Chamber. The great difference between a free society and a tyranny or an authoritarian regime is that any group, interest, person or company in our country can try to find an MP who thinks they have a fair cause, and if they persuade an MP of that—without any payment of money or anything inappropriate—their cause can run in this House and have the chance of influencing Ministers.
I hope that the Leader of the House can reassure me that the Bill will leave absolutely no doubt that we can be lobbied and that we can lobby, and that we are the free lobbyist for anyone with a good cause.
I do not wish to detain the House for long. I agree entirely with my right hon. Friend the Member for Wokingham (Mr Redwood). When the Leader of the House responds to the debate and speaks to his amendments, it is very important that he makes it clear that we as MPs are not placing ourselves in any special position other than to represent the interests of others, which is why we have been sent to this place.
The two instances that I have raised in interventions are highly personal to me, namely HS2 and the National Autistic Society. When people throughout the country read the HS2 Bill they immediately interpreted it as a drag on their lobbying of Government and on MPs who want to speak against the project. More importantly, we have to make sure that charities and other bodies that seek our help do not misconstrue the situation and think that we will be gagged in any way. This is called the gagging Bill in common parlance, which is why I want to make sure that the Leader of the House gives us a reassurance, as I am sure he will. The one thing I know is that he has been listening very carefully to the cases that have been made across the board. Rather than detain the House any longer, I look forward to receiving the reassurances sought by Government and Opposition Members that the Bill will not inhibit us in any way.
I am grateful to hon. Members for their contributions to this short debate, and particularly to my hon. Friends the Members for Harwich and North Essex (Mr Jenkin) and for Stone (Mr Cash) for tabling the new clause. I hope I will be able to reassure them that, through Government amendments 28 and 29, we will achieve the objectives that they and other Members seek. I hope that this debate on Report will begin with full agreement on how the Bill should be structured.
There are two issues with regard to this group of amendments: one is parliamentary privilege and the other is the position of Members of Parliament themselves. I reassure Members that the Government are committed to ensuring that the Bill’s provisions do not infringe on parliamentary privilege. The Government recognise that the privileges of Parliament are an integral and, indeed, as my hon. Friend the Member for Stone has said, necessary part of our constitutional arrangements. As the 18th century Clerk of the House, John Hatsell, commented, they are absolutely necessary for the due execution of Parliament’s powers.
Parliamentary privilege is an intrinsic and essential element of our democracy. It upholds Members’ right to freedom of speech and protects Parliament from external interference.
Article IX of the Bill of Rights 1689 reflects those historic and vital rights by providing that
“the freedom of speech and debates or proceedings in Parliament should not be impeached or questioned in any court or place out of Parliament”.
This Bill will in no way challenge the freedom of speech of parliamentarians.
Equally, we are committed to ensuring that the provisions do not intrude on Parliament’s exclusive cognisance and to upholding the principle famously set out by Sir William Blackstone in 1830, that
“the whole of the law and custom of Parliament has its origin in this one maxim, that whatever matter arises concerning either House of Parliament, ought to be examined, discussed and adjudged in that House and not elsewhere.”
As Members have made clear and helpfully acknowledged, following careful consideration we have concluded that the inclusion of a reference to parliamentary privilege in the Bill—either in the manner provided for by paragraph 1 of schedule 1 or in that outlined in new clause 1, if we were to proceed with it—could invite examination, discussion and judgment from sources external to Parliament. The retention or inclusion of such a provision could prompt unhelpful rulings by the courts regarding the nature or extent of privilege or its interaction with other statute. That point has been made by my hon. Friend the Member for Harwich and North Essex and by the report of the Standards and Privileges Committee.
I am grateful to the Committee and to its Chairman for his contribution to the debate. The Committee’s view and its helpful reference to the views of Lord Judge have helped us reach a conclusion. I hope the Committee will agree that Government amendment 28 meets its objective.
I am confident that Members will share our desire to protect Parliament’s right to regulate its own affairs and, as provided in the Bill of Rights, not to have its proceedings questioned. I am equally confident that the way in which that will be ensured in the context of this Bill will be to remove the reference to privilege outlined in paragraph 1 of schedule 1 and, as a consequence and for the same reason, to resist the inclusion of a similar provision as proposed by new clause 1. Government amendment 28 will therefore help to protect the privileges of Parliament from undue judicial interpretation in the context of this statute. I would be grateful if my hon. Friend the Member for Harwich and North Essex would withdraw the new clause in consequence of Government amendment 28.
I have listened carefully to the Leader of House’s explanation and am slightly concerned. Paragraph 22 of the explanatory notes states specifically that paragraphs 1 and 2 of schedule 1
“make provision to ensure that no provision of the bill could be infringing parliamentary privilege”.
Is the Leader of the House saying, therefore, that if paragraphs 1 and 2 are removed by the Government’s amendments there is no possibility of any other provision in the Bill infringing parliamentary privilege? Is that the assurance he is giving?
My hon. Friend the Member for Harwich and North Essex explained the matter well. A provision was inserted into the Parliamentary Standards Act 2009 because that statute would have impinged directly on the privileges and rights of Parliament. A saving provision was necessary in that context.
Lord Judge was right in what he said to the Joint Committee on Parliamentary Privilege and that is at the heart of our thinking on the matter. If we say in some Bills that nothing in the Bill infringes the principle of parliamentary privilege, not only would that be subject to judicial interpretation, but courts might conclude that other statutes that do not have such a saving provision may infringe parliamentary privilege. They might take the lack of a saving provision as an indication that Parliament did not expressly wish to avoid that happening. That is not our view. Our view is that parliamentary privilege subsists, that nothing in the Bill will infringe it and that courts should not interpret any part of it as infringing parliamentary privilege, for the reasons that my hon. Friend the Member for Harwich and North Essex explained.
The second issue under this group is the exemption of Members of Parliament. The Government have always been clear that the normal activity of a Member of Parliament will not be captured by the definition of consultant lobbying. The right hon. Member for Rother Valley (Mr Barron) referred to the report by the Standards Committee. I wrote to him with an explanation at the end of August, which stated:
“In order to be required to register under the Bill a person must lobby ‘in the course of a business’ and ‘in return for payment’.”
That is part of the definition of consultant lobbying. I continued:
“Performing one’s public role as a Member of Parliament does not amount to carrying on a business and is therefore exempt. This is equally true of anyone holding an elected office such as an MEP or councillor.”
I might add, in response to an earlier question, that the same would be true of a Member of the House of Lords. A Member of the House of Lords, in exercising their public duty, would not be regarded as carrying on a business and would therefore be exempt.
Concern was expressed by various people that the normal activities of elected officials might be captured by the provisions on the register. I am happy to provide the reassurance that they will not be. That was never our intention and, in our view, the Bill will not have that effect.
Out of an abundance of caution, in addition to the “in the course of a business” requirement, the Bill included a specific, overlapping exemption for Members of Parliament because of their uniquely high level of communication with Ministers and permanent secretaries. However, it became clear on Second Reading that there was dissatisfaction with the exemption, as drafted. That has been expressed again in this debate. There was concern that paragraph 2 of schedule 1 described the normal activities of a Member of Parliament inadequately.
I am listening carefully to what the Leader of the House is saying. Of course, all this depends on what one means by the normal activities of a Member of Parliament. Does he agree that the normal activities of a Member of Parliament include representing anybody, so long as we are not paid to represent them? We are free to represent anybody, whether they be a business in the City or a charity.
I understand that completely. If I have not explained my point fully, let me explain it again. Under clause 2(1)(a), part of the definition of consultant lobbying is that it is carried out
“in the course of a business and in return for payment”.
When the Bill was introduced, in order to make it absolutely clear that Members of Parliament were not covered, we included a provision about the communications that are made by Members of Parliament in paragraph 2 of schedule 1.
On Second Reading, I explained that we believed that Members of Parliament were exempt by virtue of their public duty meaning that they were not engaged in the course of a business. It was clear that the inclusion of the additional provision in schedule 1 created an unnecessary and unhelpful confusion because, as has been said in this debate, it does not encapsulate all the activities of a Member of Parliament in carrying out their functions.
Members will recall that my hon. Friend the Member for Norwich North (Miss Smith) said in Committee that we would therefore adopt a different approach. I thank her for all her work on the Bill and welcome the Minister of State, Cabinet Office, my right hon. Friend the Member for Tunbridge Wells (Greg Clark), who has responsibility for cities and constitution. I will not ask him to explain the Bill at this stage, but will allow him to take responsibility for the policy when he has had a chance to apply his considerable talents to it.
We discussed, welcomed and accepted what the Chair of the Political and Constitutional Reform Committee said and, in Committee, we accepted an amendment that he tabled. That amendment resulted in an improved exemption in schedule 1, which clarified the interaction between parliamentarians and the register. Members will recall that the definition of consultant lobbying states that it must be
“in the course of a business and in return for payment”.
Paragraph 6(2) of schedule 1 states that “payment” in those circumstances
“does not include any sums payable to a member of either House of Parliament”—
again, this refers to the point about Members of the House of Lords—under the Parliamentary Standards Act 2009, pursuant to a resolution, or out of money provided by Parliament or the Consolidated Fund.
Members of Parliament are therefore exempt under both limbs of the definition. They are not engaged in the course of a business and the payment that they receive is not regarded as payment for the purposes of the Bill. For that reason, we think that there is now a cast-iron, belt-and-braces exemption for Members of Parliament.
I might add that Members of the House of Lords are exempt in so far as they are acting in their public duties. If a Member of this House received payment for contacting a Minister or permanent secretary, it would be contrary to the Members’ code of conduct. The Chairman of the Standards Committee will correct me if I am wrong. The code in the House of Lords makes it clear that nobody can undertake paid advocacy in the House of Lords or advise somebody on the proceedings of the House, but it does not preclude somebody engaging in lobbying activity in the course of a business and in return for payment. My reading is that it is not inconceivable that some Members of the House of Lords would be required to register as consultant lobbyists as a consequence of their business activities. They would certainly not be required to register by virtue of their activities as Members of the House of Lords. I apologise for that detour.
As a consequence of accepting the amendment tabled by the Chair of the Political and Constitutional Reform Committee, we would have removed paragraph 2 of schedule 1 in Committee, but it was not reached. Amendment 29 will remove that redundant paragraph. I hope that the Opposition accept that amendment 78 is therefore unnecessary. I also ask my hon. Friend the Member for Harwich and North Essex to withdraw new clause 1.
I am most grateful to the Leader of the House for his very helpful explanation. Just to be sure, will he confirm that if I receive communications from constituents of the five absentee Sinn Fein Members—and, indeed, of any other Members of this House who take their seats—and I make representations or write to a Minister, the Director of Public Prosecutions or a senior Government official, that will not be caught by the Bill?
Yes, I can give the hon. Lady that assurance. She would not be affected by the Bill as she would be behaving as a Member of Parliament and not engaging in the course of a business. The payment she receives as a Member of Parliament is not regarded as payment for these purposes, and she can undertake all her normal activities. The same is true for the hon. Member for Harrow West (Mr Thomas) who sits on the Opposition Front Bench, because shadow Ministers and Members may raise any issues they wish. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) can represent not only her constituents but anybody she likes in her responsibilities as a Member of Parliament, and is in no way constrained from doing so.
The Leader of the House has been at his most reasonable in the past few minutes, but he has not yet touched on how we ended up in this position. I asked whether he would set out who was consulted—were the House authorities consulted before the Bill was published? I asked, and I gently ask again, whether he would accept that one lesson of this episode and this Bill might be that pre-legislative scrutiny would have been helpful?
The hon. Gentleman knows from our previous conversation that we talked to the House authorities about parliamentary privilege. The implication of what he says is that the Bill was in a sense deficient because Members of Parliament were caught, but they were not. In the original Bill, Members of Parliament were exempt by virtue of the fact that they were engaged in a public duty as office holders, not in the course of a business. To that extent, we included provisions intended to give additional reassurance, but that simply muddied the waters and it was simpler to do it in the way that we, together with the Chair of the Standards and Privileges Committee, accepted. We accepted an amendment in Committee, and all I am doing today—I hope—is making it clear that the combination of those amendments in Committee and the amendments now being considered respects the views of the Standards and Privileges Committee and protects the rights of this House in relation to privilege. It also entirely protects the position of Members of Parliament who are undertaking their duties, however they construe them. On that basis, I hope Members will support Government amendments 28 and 29.
I am grateful to my right hon. Friend for being utterly clear about the intention of this Bill, which is that Members of Parliament and Members of the other place are not intended to be included in the provisions of the Bill. He has listened and read the report from the Joint Committee on Parliamentary Privilege and the Standards and Privileges Committee of this House, and has understood the concerns raised. I emphasise the importance of removing the second paragraph in schedule 1, subject to amendment 29, because were it to remain it would have the effect of narrowing the exemption to an absurd degree. That is why it is important to remove it; it is not only redundant but would be highly damaging because it would suggest that what is not excluded by the clause would implicitly be included under the Bill. I will not press new clause 1 to a vote, because the Leader of the House is dealing with these matters in an exemplary manner, and I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 4
Duty to apply a code of conduct
‘(1) The Registrar shall, after wide consultation with relevant stakeholders including the Political and Constitutional Reform Select Committee, prepare a code of conduct with which all registered persons will be required to comply, and may produce revised codes from time to time.
(2) The Secretary of State must lay any professional lobbying code of conduct before Parliament.
(3) Any code shall provide that any inappropriate financial relations between registered persons and Parliamentarians are strictly forbidden.
(4) An organisation or person included on the register which contravenes the provisions of the code of conduct shall be liable to civil penalties as set out in section 14.’.—(Mr Thomas.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 6—Duty to report—
‘The Registrar will report annually to the Political and Constitutional Reform Committee of the House of Commons on the operation of the Register.’.
Amendment 84, page 54, line 15, after ‘satisfied’, insert ‘after consultation with the Political and Constitutional Reform Committee of the House of Commons’.
Government amendment 31.
Amendment 85, page 3, line 7, leave out from ‘business’ to end of line 8.
Amendment 86, page 3, line 15, at end insert—
‘(h) the name of the employer and the address of employer‘s business; and
(i) the names of members of staff employed by the person registered.’.
Government amendments 17 and 18.
Amendment 87, page 3, line 21, at end insert—
‘(c) the approximate value of the registered person’s spending on their lobbying activities for each quarter.’.
Government amendments 19 and 20.
Amendment 89, page 3, line 37, after ‘client information’, insert ‘and spending on lobbying’.
Government amendments 21 and 22.
Amendment 100, page 3, line 47, at end add—
‘(c) if the registered person engaged in lobbying in the quarter in return for payment (whether or not the payment has been received), the purpose and subject matter of the lobbying services provided by the registered person; and
(d) if the registered person received payment in the quarter to engage in lobbying (whether or not the lobbying has been done) the purpose and subject matter of the lobbying services provided by the registered person.’.
Amendment 90, page 4, line 7, at end insert—
‘(7) Spending on lobbying for each quarter is the approximate value of the amount a registered person spends on their lobbying activity for each quarter.’.
Government amendments 23 and 24.
Amendment 92, page 4, line 40, after ‘appropriate’, insert ‘including in written form’.
Amendment 93, page 5, line 26, leave out Clause 10.
Government amendment 25.
Amendment 94, page 6, line 28, after ‘incomplete’, insert ‘or misleading’.
Amendment 95, page 6, line 36, after ‘incomplete’, insert ‘or misleading’.
Amendment 96, page 6, line 42, after ‘incomplete’, insert ‘or misleading’.
Government amendments 26 and 27.
Reasonable though the Leader of the House was about the previous set of amendments, he will have to reach unprecedented oratorical heights for the Opposition not to press new clause 4 to a vote. The new clause seeks to establish a code of conduct that would help establish standards of behaviour for consultant lobbyists. Such codes exist already in a number of other countries that have tough lobbying regulations—Canada and Australia, for example, both have codes of conduct to which registered lobbyists must adhere. Indeed, this House’s Political and Constitutional Reform Committee also recommended a statutory code of conduct.
There was some debate in Committee about the elements of a possible code of conduct, and that point bears dwelling on and expanding a little. Surely, top of the list of standards in a code of conduct should be the requirement that lobbyists and their clients tell the truth to those they meet. Another element that might be worthy of inclusion in the code is that lobbyists must be open about who their clients are. Members of the House, Ministers and permanent secretaries are entitled to know who is lobbying them and for what purpose. Surely there should be a requirement that lobbyists advise their clients if they are about to commit illegal or unethical acts.
It is not clear to Labour Members—and, I suspect, to other Members—why Ministers do not want such basic principles of good behaviour enshrined in a code of conduct. In Committee, the then Minister, the hon. Member for Norwich North (Miss Smith), suggested:
“The experience of regulators in other jurisdictions clearly shows that statutory codes of conduct for lobbying can be unworkable and unenforceable.”—[Official Report, 9 September 2013; Vol. 567, c. 786.]
Sadly, she did not feel able to give the Committee any more information than that bald statement. If it remains the Government’s position that they do not support a code of conduct, it would be helpful for the House, those in the other place and those who watch our proceedings if they set out clearly the international examples that led them to the conclusion that statutory codes of conduct are unworkable and unenforceable.
If there is no code of conduct, we will be in the rather odd position in which the registrar can punish lateness in providing or submitting information, but cannot punish lobbyists who deliberately hide who they are working for from those they are lobbying. Before being drawn up, a code of conduct would need to be properly consulted on with all relevant stakeholders, including the Political and Constitutional Reform Committee. I accept there are already a number of voluntary codes of conduct in the lobbying industry, some of which are extremely comprehensive. Sadly, however, not every lobbyist is a member of one or other of those voluntary codes.
Gavin Devine, chief executive of MHP Communications, one of the bigger lobbying firms, noted there is a risk that simply securing a place on the register might enable lobbyists to imply they had a kitemark or some sort of endorsement, without having to operate to particular standards. Other evidence presented to the Political and Constitutional Reform Committee suggested there might be an economic issue for some who decide to register and pay the registration fee, but do not want to pay any more for the cost of being a consultant lobbyist, and therefore would no longer be part of a voluntary code of conduct.
Surely, there is a risk that, once registered, a lobbyist will simply decide not to bother with any of the voluntary codes of conduct. On 9 September, the hon. Member for Bedford (Richard Fuller) tried to argue, interestingly, that peer pressure would drive lobbyists to adhere to a voluntary code of conduct. Unfortunately, given that there are several voluntary codes across the industry, that would risk having different standards. Having one clear basic code of conduct would offer clarity about the minimum standards that lobbyists should meet, avoid confusion about which voluntary register was the best one and offer clarity to the House and the Government about the standards required of those who seek to lobby us. A code of conduct might also help to regulate those who want to lobby the Northern Ireland Assembly, the Greater London Assembly or the National Assembly for Wales, were they to be included in the code of conduct.
One voluntary code that bears looking at is that produced by the Association of Professional Political Consultants. Why do not Ministers think that its 18 elements should be standardised across the industry? Item 2 states:
“Political consultants must act with honesty towards clients and the institutions of government.”
Surely, we all want to see consultant lobbyists acting with honesty towards clients and the institutions of government. Why do the Leader of the House and his colleagues in government think that such a provision should not be written into a code of conduct and that every consultant lobbyist should have to abide by that most basic of standards?
The APPC code also states that lobbyists
“must use reasonable endeavours to satisfy themselves of the truth and accuracy of all statements made or information provided to clients or by or on behalf of clients to institutions of government.”
Again, that seeks to continue the principle of truthfulness among those who seek to lobby Parliament and the institutions of government. Why should there not be such a reasonable expectation that when we are told something, it is truthful and accurate? It is not clear, certainly among the Opposition, why Ministers think that such basic standards should not be required of all those who lobby.
The APPC code also makes it clear that those who sign it should be
“open in disclosing the identity of their clients and must not misrepresent their interests.”
Again, I ask the Leader of the House why such a basic standard for the lobbying industry should not be enshrined in a code of conduct. Why should everyone who seeks to lobby us not be required to meet that most basic of standards?
Another provision that might be included in a code is the requirement that lobbyists do not make misleading, exaggerated or extravagant claims to clients. Anyone who has followed the unfortunate publicity that some lobbyists have generated will be aware that some have made exaggerated claims for their influence on the Government or Members of Parliament. Again, a basic requirement that lobbyists should not make misleading, exaggerated or extravagant claims would surely help to protect those who use the services of the lobbying industry. Why do Ministers not think that clients should be protected from such basic bad behaviour by a would-be lobbyist and therefore have it written into a code of conduct?
Interestingly, the APPC code deals with payments and offers of entertainment and mementoes. It makes it clear that
“political consultants must not offer or give, or cause a client to offer or give, any financial or other incentive to”
somebody in government
“that could be construed in any way as a bribe or solicitation of favour”
Again, that must be a basic standard we would want all consultant lobbyists to abide by. If one shares that view, it should be written into a code of conduct, so that all consultant lobbyists have to abide by it, not just those who, in this case, choose to be members of the APPC.
The wording of new clause 4, to which the hon. Gentleman is speaking, is curious. It states:
“Any code shall provide that any inappropriate financial relations between registered persons and Parliamentarians are strictly forbidden.”
That suggests that there are inappropriate financial relations and appropriate financial relations, which I am sure is not what he meant.
To clarify, is it the Opposition’s position in the new clause that some financial relations between parliamentarians and registered consultant lobbyists are in fact appropriate? Surely, any financial relationship should be strictly forbidden. The word “inappropriate” should not be there at all.
We are seeking to establish the principle that there should be a code of conduct dealing with the relationship between Members of Parliament and the industry and covering a whole series of other questions. I hope that the hon. Lady will be persuaded of the need for such a code of conduct. I accept that consultation on the detail would be required, but if we could persuade her and the whole House to join us in the Lobby to support new clause 4, and if it were carried, I would hope she wanted to respond to such a consultation.
I am so sorry to be persistent, but I am even more confused than when I made my first intervention on this point. I am wildly enthusiastic about having a code and am willing to support the principle, but I cannot support the wording in the new clause. I would like the hon. Gentleman to explain what could possibly be an appropriate financial relationship between a registered lobbyist and a parliamentarian. No financial relationship is appropriate, so my problem is with the word “inappropriate”. Will he address that point, please?
The hon. Lady is right that it is very difficult to see how any direct financial relationship could be appropriate. I come back to a particular provision in the APPC code that might shed some light on this issue. The provision makes it clear that in relation to entertainment, for example, or to token mementos, no incentive should be given. It might be possible to suggest that such circumstances involve a financial incentive, but my point is that we need a code of conduct and we need clear details of what should be in it. I hope that that explanation will persuade the hon. Lady to support our proposal for a basic code of conduct, and that she will be able to play a role in being consulted on the details.
New clause 6 would place a duty on the registrar to report to Parliament annually on the operation of the register. The Information Commissioner has a similar duty under the Data Protection Act 1998. At the moment, the Bill implies little accountability to Parliament by the registrar. Given the registrar’s powers to impose civil penalties, to issue guidance and to make financial decisions, some accountability ought surely to be provided for in law. Let us remember when, all those long days ago, Government Members supported the signing of the coalition agreement. Page 21 of that document contained a commitment to strengthen the powers of Select Committees to scrutinise major public appointments. Surely new clause 6 follows the spirit of that provision. Indeed, even the Liberal Democrat manifesto promised to increase parliamentary scrutiny of Government appointments. New clause 6 would allow just that.
Even at this late stage—if not today and tomorrow, then in the other place—we hope that the Bill can be made more effective and, crucially, more wide ranging in regard to the number of lobbyists it covers. It remains our view that it should cover all lobbyists, and that it should provide for a clear code of conduct. The registrar would have an even more important role to play if these proposals were accepted, as we hope they will be. There is therefore even more need to ensure the registrar’s accountability to Parliament.
Amendment 84 provides that, in the unlikely and unusual circumstances of the registrar facing dismissal by Ministers, the dismissal could be confirmed only after consultation with the Political and Constitutional Reform Committee. Given the registrar’s importance in regulating the activities of those who seek to lobby Members of this House, as well as Ministers, it is surely reasonably to ensure that the ultimate disciplinary sanction could be taken only after discussions with Parliament.
Amendment 86 would require lobbyists to name those for whom they were working, and for whom their staff were working. Whether the Conservatives like it or not, the adverse publicity that the employment of Lynton Crosby has secured for them has been caused in part by the lack of clarity from the Prime Minister about whether Mr Crosby’s firm and its many members of staff are working for anyone else in the UK at the same time as they are working for the Conservative party. We want transparency in lobbying, and the Government say that they too want to abide by that ambition. In that case, lobbyists should at least be required to disclose which clients they and their staff are working for.
Amendments 87, 89 and 90 would require a declaration of how much had been spent on lobbying in a particular period. If we want to understand what lobbyists are doing, and if we want proper transparency in our politics regarding the scale of lobbyists’ influence, we need to understand where and why big money is being spent on buying consultant lobbying services.
I have followed the debate with a great deal of interest. It seems to me that the additional safeguards that the hon. Gentleman wants to put in place would be so convoluted as to create a lawyers’ nightmare. Surely it would be simpler to strengthen the guidance to Ministers and Members of Parliament than to try to enshrine all this in the Bill.
I say gently to the hon. Lady that I understand her frustration with the process, but we are trying to make the best of a bad job by the Government, and to tidy up a poorly prepared Bill. She makes a reasonable point, however. Had we had the opportunity for pre-legislative scrutiny and for a further period of consultation with the industry on the details of the lobbying provisions in the Bill, we might not have needed to table amendments to try to make the Government’s proposals more workable.
I have a degree of sympathy with what the hon. Gentleman is saying. Many of us have concerns about the Bill, but he might just be making matters worse, despite his best intentions. I do not believe that the Bill will catch the behind-the-scenes lobbying that the public are most concerned about. The emphasis should therefore be more on ensuring that Ministers and Members of Parliament act totally correctly, rather than on trying to second-guess every little nuance that a lobbyist might come up with.
I have to disagree with the hon. Lady. If we can get the rules for lobbyists right—or as right as we possibly can—at the beginning of the process, we should be able to limit the scope for problems further down the line. In tabling our amendments, we have been motivated by what has happened in other countries that have statutory codes of conduct. Our research suggests that such measures have had a positive impact in helping to make lobbying more transparent in those other jurisdictions. That is why I commend our proposals to the hon. Lady and to the House.
I suspect that, once lobbyists had got used to the new regime, they would become extremely comfortable with a code of conduct and with the other requirements that I have set out. Clearly, there would be a need for the registrar to do some educational work, but I am sure that that would be possible. I am concerned, however, that because so few lobbyists will be covered by the provisions of the Bill, the registrar might not be financially sustainable in the way Ministers hope. If that is the case, I fear that there would not be sufficient resources to do the educational work that would form part of the registrar’s public duties. I hear the hon. Lady’s reluctance, but I urge her to keep the faith and to come with us into the Lobby tonight in an effort to make a bad Bill a little bit better. [Interruption.] I think I heard her say that the Bill was rubbish, or at least saw her mouth those words. I would not use such terms, but I understand her frustration with those on her own side.
I look forward to hearing my hon. Friend the Member for Nottingham North (Mr Allen) speaking to amendment 100. His interesting amendment seeks to require the declaration of the purpose and subject matter of a lobbying exercise. Our amendments 86, 87, 89 and 90 would have a similar effect, but I have no doubt that my hon. Friend will offer his own specific analysis of the merits of his amendment.
Amendment 92 would allow the registrar to publish the register—not only on a website, but in any other form that the registrar thinks appropriate, including, I would suggest, in written form. The key here is to ensure that the register is as accessible as possible.
Amendment 93 would remove the provision that deals with privilege and self-incrimination. This is surely a somewhat archaic principle, holding that an individual cannot be compelled to provide information that would then incriminate them. I am not sure why we need this provision to be included, so the Leader of the House might like to dwell in his reply on the need for its inclusion. This is essentially a probing amendment, intended to allow the Government to set out their argument.
Amendments 94 to 96 would ensure that a lobbyist who submitted a misleading entry to the register would be committing an offence under the Bill. Again, we seek to make the register a more transparent document and an accurate source of information about who lobbyists are working for and how much they are receiving for doing so. We want the legislation to provide for clear consequences if lobbyists fail to provide the required clarity and transparency about their lobbying work. If, for example, a lobbyist’s entry were somewhat ambiguous, the registrar could, under our amendment, take steps to compel the lobbyist to be more open, clearer and more transparent about their activities. If the Leader of the House intends to oppose these amendments, I would be interested to hear his thoughts on whether misleading entries should be regarded as acceptable and on why no sanctions should be imposed on lobbyists who provide the registrar with misleading information.
I very much hope that the Government will, in the end, come round to the view that in-house lobbyists need to be brought under the scope of this legislation. A code of conduct, provided for by the principal new clause in the group, could then cover a whole series of lobbying activities and require all lobbyists to adhere to clearer standards of behaviour. Many in the lobbying industry who are practitioners of political lobbying work to high ethical standards, and they unsurprisingly support a code of conduct. It is far from clear why the Government do not support a statutory code of conduct.
I am just trying to be helpful.
My hon. Friend the Member for Harrow West (Mr Thomas) has given us a tour de force on this group of amendments, leaving me mainly to sweep up on amendment 100, which I am happy to do.
Amendment 100 emerged from the considerations of the Select Committee on Political and Constitutional Reform when the Bill was put before us and we had a chance to take evidence from witnesses. I hope that the amendment is helpful in raising a number of issues that I would like the Government to consider.
We heard a few moments ago from my right hon. Friend the Member for Rother Valley (Mr Barron), the Chairman of the Standards and Privileges Committee, and I endorse his views in that the Government have listened on the particular item he mentioned, as a result of which we have a better Bill, although it is still far from perfect. That just shows that where there is interaction—this does not mean that the Government have to swallow every probing amendment that finds itself on to the amendment paper—there is a possibility of a little bit of give and take. From my perspective as a parliamentarian, I understand that some of the ethics coming from the Front Bench have to be a little sharper and a bit more oppositional, but I sometimes have the luxury of posing a view on behalf of Parliament that might find favour, albeit not necessarily in its existing form. Let that debate continue.
This is why, unprecedentedly in my own political career, I opposed the programme motion earlier today—because we did not have the chance in so many fields and areas to interact with the Government. Where we have had that chance, it has, by and large, been a productive relationship. I hope that, because this House has not had as much of that chance as we would like, colleagues in the other place will find an open door and be allowed more give and take so that the Bill evolves and gets better and better as it goes through the parliamentary process. [Interruption.] I do not know whether the Leader of the House was about to launch forth from the Dispatch Box or whether he was merely stretching, having sat in his place for 40 minutes. Clearly, he was just stretching.
As I say, my hon. Friend the Member for Harrow West has covered most of the issues, but on a more specific and narrow point, I would like to look at the issue of the information provided in the register. It was an issue that my Select Committee took very seriously, and we took a lot of evidence on it. Looking at the nitty-gritty of the Bill through the first consultation we undertook, we thought that we would have a Bill that dealt only with what we are discussing today—not with what we will be discussing tomorrow, as that was added at a later stage. Today, however, we are discussing lobbying, lobbyists and the process of lobbying. We thought that we had made quite a sensible and constructive contribution to that debate. Subsequently, we then rather hurriedly took additional witness evidence, including from the Leader of the House, but from people on all sides of the arguments about what lobbying is and what form regulation should take.
One point that was common to all those who spoke to us was that they felt that the big chance had been missed. They believed that the lobbying problem had been accurately identified by the Prime Minister and perceptively identified by the Deputy Prime Minister in the run-up to and during the last general election. People were surprised, however, that none of those issues that raised such public concern—and the concern of two party leaders who became partners in the coalition—were addressed in the Bill that was produced to deal with lobbying. Rather, lobbyists were narrowly defined and those to be lobbied were narrowly defined. We thus felt through that period that a big chance had been missed to do what we all thought the lobbying Bill was about. The detail of all that was taken seriously, as people from a wide range of views said, “Let us try to help; let us try to define the problem a little more accurately”—by reflecting, for example, on what sort of information should be provided. That is clearly at the heart of amendment 100.
I would be pleased to do so. My Select Committee, composed of Members of all parties, pulled together the full list of those who gave us evidence, and we published it. On the specific point that the hon. Lady mentions, my report heard from interested people ranging from a former chief executive of five trade associations, Mark Boleat, the Information Commissioner’s Office and Spinwatch, which was on one particular wing of the argument, to academics such as Dr Hogan, Professor Murphy and Dr Chari, to Iain Anderson, the deputy chairman of the Association of Professional and Political Consultants, the Committee on Standards in Public Life—mentioned earlier by my right hon. Friend the Member for Rother Valley—and the list goes on and on. Many people and organisations in all parts of the lobbying industry gave evidence to the Committee, and there was a surprising degree of consensus on the issue of what might happen, particularly in relation to information provided in the register.
This is another missed opportunity. First the Government missed the opportunity to tackle some of the big issues involved in what the public regard as lobbying; now, by ramming the Bill through the House of Commons at such a late stage like a bull charging at a gate and by leaving any effective scrutiny to the other place, they have failed to cash in on the good will that exists among organisations in the lobbying business which might be expected to be at daggers drawn.
In fact—partly as a result of a process of discussion and debate in which my Committee played its part, but partly because of public interest in the issue—people began to say things such as “Let us try to find a sensible way forward. Let us find some basic steps on which we can all agree.” Perhaps the issue could be revisited in a couple of years when things had settled down, or perhaps cases could be responded to as they arose when loopholes were identified.
No one ever expects a measure to be perfect initially. I think that we missed that chance, that possibility of consensus. We suggested that there could be a pause, certainly in respect of clause 2, and that we, or at any rate a Committee of the House, could—within a set time such as six months, and not as a means of delay—bring back to the House a fully fledged Bill that would command consensus among all those with an interest, rather than a Bill which, sadly, commands consensus because no one likes it.
The Bill has no friends. It has a driver in the Leader of the House, but no one is saying “Thank goodness for this Bill.” There are no people out in the streets marching up and down saying “Thank goodness Parliament has got it right.” I think that it reflects badly on the reputation of this place, and we are seen to be failing the public, when a public issue such as anxiety about lobbying can be put to bed in a rational way but we produce a Bill that has so many loopholes, one of which relates to the information provided in the register.
I have just observed that other members of the Joint Committee on Human Rights are not in the Chamber. Although I did not attend the last meeting, I know that it is in the public domain that the Chair of the Committee wrote to the Leader of the House expressing similar concern about speed and lack of scrutiny. The report has not been written and I am therefore not at liberty to reveal the likely proposals, but I think that there is a fairly widespread cross-party view that more time would produce a better and more comprehensive Bill.
I think that if I am allowed to speak for long enough in replying to the right hon. Gentleman, the Chair of the Human Rights Committee may appear from somewhere, and may be able to inform the House of the Committee’s view on whether the Bill, as currently constituted, should be subject to a pause so that it can be examined effectively in the context of the human rights aspects to which the right hon. Gentleman has referred.
But not in my usual place.
My hon. Friend has made an important point. As he knows, tomorrow the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and I will discuss the heads of the report. In September, we agreed that it was very inopportune that we should have to deal with matters of great import in such great haste. The Committee feels strongly that we need far more time.
Order. The amendment to which the hon. Member for Nottingham North (Mr Allen) is speaking relates to the issue of registered persons, which, as he said at the outset, is specific and narrow. The debate is not about the time that has been allocated to discussion of the Bill. The hon. Member for Aberavon (Dr Francis) has assisted the hon. Member for Nottingham North, and I hope that he will now speak directly to his amendment.
Order. The Members who are present this evening are indeed experienced, and the hon. Member for Nottingham North is very experienced. He knows that the purpose of the debate is to focus on the matters contained in the amendments. Perhaps Members who wish to comment on matters relating to Third Reading, or to other amendments, could save their remarks for those occasions. I am sure that, given the huge amount of work that has been done by the hon. Gentleman’s Committee, he will now want to return to the subject of amendment 100.
I must ask Members to stop tempting me to stray, because I have some important points to make about the amendment. Other points can be made at other times.
Let me now make some comments relating specifically to the information provided in the register. I shall try to be even-handed, as my Committee was, and balance the arguments that were presented to us. I have already mentioned Mark Boleat, the former chief executive of five trade associations. He thought that the Bill, as constituted, was sufficient. He said:
“Subject to the definition of ‘lobbyist’ being widened, the information to be included on the register is satisfactory.”
The Information Commissioner’s Office commented:
“It is clear that the nature of the information to be provided for inclusion on the register by those engaged in lobbying activities will provide a useful source of information not previously available on a routine basis.”
I do not suggest that this is a clear-cut, black-and-white issue—I think that there are contending views—but the balance of the evidence given to the Committee clearly indicated that slightly more detailed information could be provided in the register. For example, there was a significant degree of agreement that the additional information should include disclosure of the subject matter of lobbying, and some agreement about inclusion of the purpose of the lobbying and the list of those who had been lobbied.
Having put that on the record, I hope that, either today or at some other stage, Ministers will digest it and decide whether they consider it reasonable for such measures to be included in the Bill. I am hopeful that that would receive consent both here and in the other place.
Some people also argued for financial disclosure in the register. As one might expect, Spinwatch stated that the information required under the Bill was “wholly insufficient”, adding:
“For a register to meaningfully allow public scrutiny of lobbying, it must include information from lobbyists on their interactions with government. In other words: whom they are meeting and what issues they are discussing. Members of the public wanting to see which outside organisations are exerting influence on a particular policy area, for example, will be unable to do so under this proposal.”
As I mentioned, there was a joint submission to the Committee from three eminent academics: Dr Hogan, Professor Murphy and Dr Chari. They argued for the inclusion in the register of
“the subject matter and purpose of the lobbying”.
The Royal College of Midwives commented:
“It is hard to see how the information requested will add greatly to the transparency of the lobbying process...Would it be too burdensome, at the very least, to ask for the register also to spell out the issues on which clients are seeking to lobby (e.g. improved conditions for farm animals), and the nature of the lobbying that has taken place (e.g. all-party group on road hauliers established)?”
Therefore, evidence was coming in all the time about how seriously the detail, the nitty-gritty, of the lobbying part of the Bill should be examined. Those are important, serious issues that will not only affect the livelihoods of those in the lobbying business, but influence the transparency of those who are being lobbied, their accountability and how effectively they are lobbied. That is one detail of an important, extended set of original legislative prerogatives that we are being asked to look at. I briefly allude to the fact that earlier I felt that we needed not just more time on the Floor of the House but adequate time to tease out these issues. There are not wild differences of view but there are understandable differences of nuance. Parliament has a role in helping to make legislation work. If we have that starting point, people can come together and make even a Bill that some of us largely disagree with workable. I hope that the second Chamber can pick that up, too.
Iain Anderson, deputy chair of the Association of Professional Political Consultants, supported publishing information about the purpose and subject matter of lobbying, but suggested that that could be done most effectively and efficiently when details of ministerial and official meetings were published, rather than in the register. That is a perfectly valid view. I have heard it put by Government Front Benchers. It is perfectly justifiable. The Committee on Standards in Public Life also argued that information on the subject matter could be included either on the register or in the details that were published of meetings. The difficulty with including the information in the data about ministerial and official meetings is that, if the definition of lobbying is expanded to encompass conduct and contact with the rest of the senior civil service, special advisers and others, who do not necessarily publish details of their meetings, the coverage of such information would be patchy at best. That would not necessarily be advantageous when we are trying to pull such a Bill together.
I would never lead an hon. Member astray. The hon. Gentleman has raised a serious issue to do with the transparency of lobbying. Those are the words in the Bill: transparency of lobbying. Therefore, it is essential that the subject matter of the lobbyist group that meets the Minister or senior civil servant, talks to them, phones or whatever is noted. Clause 4(2)(g) says that the entry must include
“such other information as may be specified in regulations.”
Therefore, I would like the Leader of the House to confirm tonight that there is provision in the Bill for the subject matter of the lobbying to be required by regulation. If he were to give the House that assurance tonight, would that influence the hon. Gentleman’s decision on whether to press amendment 100 this evening?
I do not want to incur the wrath of the Deputy Speaker, so I had better not say anything on clause 4(2)(g) as my amendment relates to clause 5. I do not intend to press my amendment to a Division, however. What I wish to do is engage the Leader of the House on an issue on which there is both concern and a lot of constructive activity. If he chooses to tap into it, there is a lot of constructive endeavour out there seeking to get this right for all the people who are concerned about lobbying. On that basis I am putting a number of items on the record in the hope that, either here or in the other place, we examine the following very difficult question: if we are going to register lobbying, do we register the subject too, and if so, how do we best do that for the sake both of convenience and of the transparency and accountability on which this whole Bill rests? I am sure that it is not beyond the wit of my Select Committee, and that it is absolutely not beyond the wit of Government, to come up with something, put it on the Order Paper in the second Chamber and find a way forward that allows everybody to make progress.
We are not talking about a detailed note and a minute and so forth—I do not imagine the hon. Lady is talking about that either. Alexandra Runswick, the director of Unlock Democracy, is one of the people who gave evidence to us. She said:
“I think that misrepresents the nature of the information we are looking for in the register. We are not expecting a transcript of the meeting, but what policy area it is that is being lobbied on. There are already individual MPs who publish their diaries and say, for example, ‘I met Unlock Democracy about the Lobbying Bill.’ That is the level of information that we are looking at—the policy that is being lobbied about, not the exact information that was shared with the person whom you are lobbying.”
That strikes me as eminently reasonable, but if it is not in those exact words something that the Government feel they can adopt, perhaps it is something they feel they can work with, so what we produce from these Houses is not a laughing stock to people out there who say, “There they go again; the old boys in the club have stitched it up again. Look at what they’ve done. This isn’t going to tackle lobbying. We’ve seen that it’s not tackling some of the key lobbying issues that got this subject into the public domain, and now look at it! They’re not even going to tell us what they want to talk about in two words.”
That does not do a service to the House or to this Bill. Lobbyists and those being lobbied are also very clear that that does not help them in what most of them do, which is a fair day’s honest work trying to do their job effectively. They understand that this looks as though there is something to hide, when in fact, as in most walks of life, 99.9% of them are just doing a fair day’s work.
The hon. Gentleman rightly makes the point that if the topic on which the lobbying is taking place can be kept secret, people will have no sense of true transparency, but does he agree that not only do the public need to be satisfied about, and protected by, such transparency, but so, too, do the people contracting the lobbyists and the lobbyists, because they should be free of any accusations of ulterior motives or ulterior agendas, or lobbying on other issues, by being able to say clearly, “This is what it was for; that is what it was about”?
That is why I think sorting out the information provided in the register is essential to this part of the Bill.
Political Lobbying and Media Relations stated:
“Explicit information on the details of meetings between lobbyists and ministers should not be published.”
I agree with that. It continues:
“This removes the right of privacy to individual organisations who often have sensitive information that they wish to share with elected representatives.”
As far as I can gather, nobody is actually suggesting that that should be done and that there should almost be a video camera present whenever such an interaction takes place. We are modestly suggesting, as food for thought, that there should be some means of registering the subject that is the object of the debate involving the lobbyist.
As the hon. Gentleman will have realised from the last debate, I have great concerns about a specific development of rail freight in my constituency. If the topic was lodged just as, “Discussion about getting freight off roads and on to rail”, I would be none the wiser as to whether the discussion was about a specific development that I am particularly concerned about. So I am a little concerned that his broad-brush approach might end up with people who wish to phrase things in such a way concealing matters rather than revealing them.
The hon. Lady made a telling intervention about that in our last set of debates. I am sure she will forgive me for not knowing enough about the detail of the case; the subject appeared to be very specific. It would have been a lie to say that this was a general discussion about transport and haulage; that would have been to conceal the truth. It is not for me to judge, because I do not know the case, but that particular interaction would have been much better described in specifics; without going into technical detail, mention could have been made of the constituency and the people involved. That could have been done in a few words, and the hon. Lady, one of her constituents or someone interested in this particular case would have picked that up from the register. She would then, rightly, have been able to ask further questions of a Minister or a friend of a Minister. She would have been able to say, “Hang on. What does this actually mean? I have a constituency interest here. I have been following this. What went on here?” From that, we can move things forward. We are not saying, “Let’s have a full minute of that particular thing in the public domain for everybody.” We want to give people the lever to make transparency and accountability actually work.
I know what the hon. Member for St Albans (Mrs Main) is talking about, and she made an important point that we should recognise: the distinction between those lobbying for commercial interests and those, apparently or even genuinely, lobbying for an altruistic case, for example, on behalf of the environment. Members of a lobbying group wanting to reduce emissions and to get people off road and on to rail might be being used by commercial interests. The distinction between the two things is very important.
We need a dose of common sense here, so that the stuff in the public domain is not onerous for all those people involved in it but is none the less informative for those who wish to go further and ask questions. Deciding on a form of words that makes that apparent and makes it acceptable to almost everyone who is lobbied or who is a lobbyist is well within our capabilities. That is why my Committee has suggested—I speak not as an individual MP but on behalf of a Select Committee of this House which looked at this matter with care—that the Leader of the House and his team have another look at this. In order to get that debate going, we have suggested, in amendment 100, that we add the words
“the purpose and subject matter of the lobbying services”.
Our amendment states:
“if the registered person engaged in lobbying in the quarter in return for payment (whether or not the payment has been received), the purpose and subject matter of the lobbying services provided by the registered person”.
We hope the proposal is helpful and I think that people out there would expect it of us. We should not be pressing to have a particular form of words, but we should certainly be pressing to have the Government think about how they meet this very obvious public requirement. On the basis of good faith that the Government Front-Bench team will take this issue away, I will not seek to press amendment 100 to a vote.
I am grateful to colleagues for the two speeches on this group of amendments.
Let me start with new clause 4, moved by the hon. Member for Harrow West (Mr Thomas). The proposed new clause would require the registrar, after consultation with stakeholders including the Political and Constitutional Reform Committee, to produce a code with which all registered persons must comply or face a civil penalty. We are talking about a statutory code with a requirement for a penalty if it is not complied with. The exchanges between the hon. Gentleman and the hon. Member for North Down (Lady Hermon) amply illustrated that there is scant detail about what such a code would contain, so the amendments reveal that the Opposition intend to create not only a register of lobbyists but a full-blown general regulator of the industry. While the Government are seeking to shine the light of transparency on the key issues in lobbying and the impact on key decision makers, the Opposition are bent on regulating the lobbying industry as a whole. They would regulate the behaviour of the huge number of individuals and organisations that would be captured by the definition of professional lobbying that they suggested in Committee.
The Government recognise the industry’s efforts to improve lobbying practice by introducing its own codes of conduct and we are confident that that will continue. Those codes promote the ethical behaviour that is essential to the integrity and reputation of the lobbying industry. The voluntary, self-regulated codes contain laudable principles and good practice guidance, but their translation into statute is hardly sensible—nor is it feasible. The experience of regulators in other jurisdictions illustrates clearly that statutory codes of conduct for lobbying are effectively unworkable and unenforceable.
I was going to answer the point that the hon. Gentleman made earlier, so let me give him an example and then I will let him intervene.
The consequence of seeking to regulate the whole industry is that in Congress the point has been reached at which there is an 894-page manual. Is the hon. Gentleman seriously proposing that we should go down that path, having a similar relationship between the lobbying industry and this Parliament to that in Congress?
The right hon. Gentleman is now making a different point from that made by the hon. Member for Norwich North (Miss Smith) in Committee. She argued that there were plenty of examples of statutory codes of conduct that were not working. The right hon. Gentleman is making a different point and I would gently suggest to him that the experience from Canada and Australia, where statutory codes of conduct exist, suggests that such codes can be made to work perfectly effectively.
I do not agree. The consequence of large-scale statutory codes is considerable expenditure.
Let us consider the simple questions to which we have no answers. The new clause states only that there should not be inappropriate financial relationships; the hon. Gentleman does not tell us what those inappropriate relationships are or explain why they are not already prohibited by instruments such as parliamentarians’ codes of conduct, which we discussed earlier, or laws on bribery and corruption. How would the provisions of the code be enforced? What resources would the registrar require to monitor and enforce compliance, particularly if seeking to enforce compliance against imprecise, vague and wide-ranging—understandably so, as far as the voluntary code is concerned—principles and prescriptions? Trying to set up such a structure of enforcement in relation to such a wide-ranging code for such a large number of people is completely unsustainable. Who would foot the bill? The bill for the measures in Canada is equivalent to £3 million and this proposal would clearly cost much more. In any case, the Canadians go about things in a different way from us. It is not a case of adopting what they do, because they do not take our approach. We set out, through the transparency of Ministers’ and permanent secretaries’ diaries, to approach the issue in a completely different fashion.
We are not trying to set up a register that controls what the lobbying industry does. Our approach recognises that lobbyists have a job to do. They are engaged in a self-regulatory structure. We are not trying to introduce a bureaucratic monster to oversee all that. We are clear that the key decision makers should be transparent about who they are seeing, and that—as the Bill would now ensure—where it is not transparent, in that they are meeting someone who is representing, as it were, their own interests, where they meet consultant lobbyists, those consultant lobbyists, through the register, are required to disclose who their clients are.
I am afraid that new clause 4, and much of what we heard from those on the Labour Front Bench and from the hon. Member for Nottingham North (Mr Allen), suggests that either they are not clear about what problem they are trying to address or they are simply trying to create a bureaucracy. We are not in that business. They are trying to create something that the Government have been very clear we do not want to create. We believe in transparency. We do not believe in the large-scale regulation that they are pursuing.
Like my right hon. Friend, I am keen that we do not have some great bureaucratic invention to deal with this issue. There is one thing I do not understand, however. If a public relations company that has 500 clients comes to speak to my right hon. Friend or a Secretary of State or a permanent secretary, what would be the difficulty in making it a requirement that the company makes it clear which client it is coming to speak on behalf of? Otherwise, one does not get very much further by just knowing which company is making the representation.
My right hon. Friend, characteristically, makes a better point than those on the Opposition Front Bench did. It is consistent with the approach that we are taking, but I respectfully suggest that we should not include such a requirement in the Bill, as amendment 100 seeks to do, because the register is not the place where those meetings are recorded. They are recorded in ministerial diaries. The issue is getting transparency in ministerial diaries.
We are the first Government to publish details of those meetings and other transparent relationships. We have extended the scope of that, not only in lobbying but in relation to the media; we publish that information. The Minister of State, Cabinet Office, my right hon. Friend the Member for Tunbridge Wells (Greg Clark), picking up the work undertaken by his predecessor, my hon. Friend the Member for Norwich North (Miss Smith), is engaged in ensuring that information provided by Departments provides sufficient detail about the subject of meetings. If one has the register, which discloses who the consultant lobbyist is and their clients, and Ministers’ diaries, which are clear about the purpose of a meeting, one should be able to see the character of the relationship —who is lobbying whom, and for what.
I completely understand that, and I commend the Government, as my right hon. Friend knows, for the change in the rules about the publication of diaries, which is very welcome. May I ask him a practical question, which may answer my concerns and those of others? What will be the intended delay between the meeting and the diary publication or the appearance in the register? People often need that knowledge soon after the event—not a long time after, when it may be too late to be relevant.
That brings us to some of the other amendments. We are clear that the key decision makers are the gap in terms of transparency. We want to be clear whom the key decision makers are seeing. There are plenty of amendments on that subject in the next group, so I will not answer that point. It would of course be possible to extend that to lots of other groups, but we should consider the bureaucracy that would be created by doing so, by imagining 5,000 senior civil servants all publishing their diaries.
Let me make some progress, then I will give way again. There are quite a number of amendments in the group and I want to address each of them briefly.
New clause 6 requires that the registrar provide an annual report to the Political and Constitutional Reform Committee. The Chair of the Committee did not, I think, refer to new clause 6, and I am not aware that the Committee made such a proposal. If the Committee wants to call the registrar to give evidence to it on an annual basis, it is quite within its rights to do so, and the Government would be happy to support that, but we do not believe it is appropriate to set this down as a statutory requirement.
Opposition amendment 84 requires the Minister to consult the PCRC before dismissing the registrar—another interesting proposal, but I am not sure that the amendment adds anything of substance to the Bill. In essence, this is part of the same issue as the independence of the registrar, which I believe is already made clear in the wording of the Bill. The registrar will be independent of the lobbying industry and the Government and will have a clear remit to operate independently of both. The Minister will be able to dismiss the registrar only when he or she is satisfied that the registrar is unable, unwilling or unfit to perform the functions of his or her office, and any decision by the Minster could be challenged in the usual way via judicial review.
Opposition amendment 85 removes the requirement that lobbyists who have no business address must register their private residence. I can understand the concern to protect the privacy of individuals on the register, especially given the more onerous and invasive reporting requirements proposed elsewhere by the Opposition, but I am not sure that the removal of the requirement to register an address is a helpful one. A registered address is critical if the registrar is successfully to issue information notices, investigate compliance, and serve penalty notices. The great majority of consultant lobbyists will have one or more dedicated business addresses, so no issue will arise. The handful of individual consultant lobbyists who have no separate business address—I recognise that there is no requirement to register for those who do not meet the threshold of undertaking a business that is VAT-registered—can choose to obtain such an address and use that or they can submit their personal residential address. I therefore do not agree that this step is a wise one.
Given the Opposition’s concern about privacy, do they really want to require, as proposed by their amendment 86, that every organisation that lobbies must declare the names of all members of staff employed? Let us take an example. Given the way in which other Opposition amendments would apply, if an academic were engaged in contact with a Minister in pursuance of a subject on which they had undertaken research, the Opposition’s definition—not ours—would require that to be registered, whereas we would say that that was incidental and that the academic was not engaged mainly in lobbying activity. The Opposition would say that it should be included and, by extension, the names of everybody who works for the university should be entered in the register. That is unrealistic and makes no sense.
Amendments 87, 89 and 90 would amend the information requirements outlined in clause 4 to require that lobbyists also disclose financial information. Amendment 100, as I mentioned earlier, would alter the information requirements outlined in clause 4. We have been very clear that the objective of the register is the identification of the interests that are being represented by consultant lobbying firms. Lobbyists should therefore be required to disclose their clients. We are not persuaded that the burden of providing further information that would be imposed on the industry and the regulator is justified by the limited insight that it would provide. One can readily envisage the administrative nightmare that would result from trying to determine the costs of lobbying activity, especially where this had to be disaggregated from wider business activities. Requiring the disclosure of financial information relating to lobbying activity is not, in our view, proportionate to the problem identified.
Amendment 92 makes it explicit that the registrar may publish the register in written form. I can assure the Opposition that this is already implicit in 7(2), which states that the register may publish the register
“in such other form or forms as the Registrar thinks appropriate.”
The registrar can do whatever is necessary, including publishing the register in written form.
I am grateful to the Leader of the House for allowing me to intervene, even at this stage. Before he concludes his comments rejecting amendment 100, may I remind him of his opening remarks in response to this group of clauses? He said that the Government intend to shine the light of transparency—a great phrase—on lobbying, and we say, “Hear, hear” to that, but I cannot understand his justification for not requiring the subject matter of a meeting to be registered. He suggested that that is publication of the diaries of Ministers and permanent secretaries, but the Leader of the House will know better than any of us that the definition of permanent secretary includes the DPP, the chief medical officer and the chief executive of Her Majesty’s Revenue and Customs. Are they obliged to publish their diaries?
The point I was making is that the register that the Bill establishes is not where meetings will be listed. Meetings will be listed in the diary of the Minister or the permanent secretary. Consequently, in so far as it is appropriate for a meeting’s character to be disclosed, it will be disclosed in the ministerial diaries. To try to construct in the Bill the idea that the subject of meetings will be disclosed in the register would be to misunderstand what the register does. The register discloses the clients of consultant lobbyists, not the subjects on which they are lobbying.
The Leader of the House has still not made any convincing case for why the register should not specify the topic of the lobbying. The idea of relying solely on ministerial diaries, with people having to look up the register and then the diaries on the basis that they already have a suspicion, clearly imposes more difficulty. If this is meant to be about transparency in lobbying, why cannot there be transparency in the register?
With respect, I do not think that the hon. Gentleman was listening to my previous answer. Consultant lobbyists disclose in the register who their clients are. The diaries of Ministers and permanent secretaries disclose who they meet. If the Secretary of State for Transport meets British Airways, it is transparent that British Airways is representing its interests. However, if the XYZ airline is represented by a consultant lobbyist, the register will disclose that the airline is the client of that lobbyist, and it will be transparent through the Minister’s diary that he or she has met that lobbyist and, as a consequence, it will be clear who they are meeting. The issue is not whether there is transparency but the mechanism by which transparency is delivered. It is delivered through the publication of Ministers’ diaries, and the gap in transparency that we have identified, and which the Bill remedies, is the gap in understanding, if Ministers or permanent secretaries meet consultant lobbyists, who their clients are.
No, I have answered that question.
Amendment 93, tabled by the Opposition, would remove clause 10. I must confess that I am still bemused. We made it quite clear in Committee that the effect of doing so would be that in response to an information notice a person would not be required to provide any self-incriminating information, including in relation to any offence committed in relation to the register itself. The amendment would entirely undermine the enforcement regime relating to the register.
The Opposition’s amendments 94, 95 and 96 would make it an offence for consultant lobbyists to report misleading information. Although the intention behind the amendments is undoubtedly sound, I do not believe that they would have a substantive effect, as in order to be misleading the information must be either inaccurate or incomplete, and that is already covered by the clause.
The Government’s amendments in this group include amendment 31, which will allow the registrar to make direct payments to staff who have been seconded to support the office holder in addition to or instead of payments being made to the Minister or other person who seconded staff to the registrar. The registrar can also make payments to Ministers or other persons who supply accommodation or other services to the registrar under the general provision to make arrangements set out in paragraph 8(1)(b) of schedule 2.
Clause 4(3) outlines the client information that should be included in each register entry. Amendment 17 clarifies that if the registered consultant lobbyist has not engaged in lobbying or been paid to engage in lobbying during that quarter, its register entry for that quarter will contain a statement to that effect, as set out in clause 5(5), in lieu of any client information.
Amendments 18 and 19 will ensure the clarity and consistency of references to the periods for which consultant lobbyists are obliged to provide information. In the existing Bill, the three-month period prior to their initial registration about which consultant lobbyists must provide information in their register entry is called the “relevant pre-registration period”. This amendment changes the references to that phrase in clause 4 to the phrase “pre-registration quarter”, reflecting the references to the quarters for which client information is required after registration and ensuring consistency across the Bill. I hope that is clear.
Amendment 20 will ensure that the parameters of the pre-registration quarter are unambiguously defined as the three months ending on the date on which the person applies to be registered. The amendment changes the definition of the relevant pre-registration quarter period from the period of three months preceding the application date to the period of three months ending on the application date.
Amendments 21 and 22 will make it clear that register entries must include the names of the person or persons on whose behalf lobbying is undertaken, reflecting the reality that consultant lobbyists are likely to be engaged by more than one person during a quarter, and ensures consistency across the provisions of the Bill.
Amendment 23 clarifies the registrar's duty to update the register in accordance with the information returns submitted by consultant lobbyists by removing the unnecessary reference to “receiving the information return” which is covered in the following sub-paragraph.
Amendment 24 makes clear the separation of what the registrar is required to do, and what it may do. The registrar must publish the register in accordance with requirements set out in section 6. The registrar may also publish entries in respect of persons who were but are no longer entered in the register, but this is not a subset of its requirements under section 6.
Amendment 25 makes it clear that it is an offence for a “registered” person to carry on the business of consultant lobbying if they have submitted incomplete information to the registrar. This puts beyond any shadow of a doubt the class of person that is caught by this provision.
Amendment 26 will clarify that a person guilty of an offence relating to the register is liable to a fine, whether they are summarily convicted or are convicted on indictment. If convicted in a Crown court, the fine will be unlimited. If convicted in a magistrates court in Scotland or Northern Ireland, the fine will not exceed the statutory maximum. If convicted in a magistrates court in England or Wales before the coming into force of section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the fine will not exceed the statutory maximum; if convicted after the coming into force of that Act, which removes the statutory maximum in England and Wales, the fine will be unlimited.
Amendment 27 further clarifies that an appeal against an information notice or the notice or imposition of a penalty can be heard either by the first tier tribunal or, if so determined by or under the tribunal procedure rules, the upper tribunal.
When the time comes, I would welcome the opportunity to move the Government amendments standing in my name.
We have had a very good debate on these amendments but, sadly, what has become clear is that whenever meaningful transparency has been suggested, the Leader of the House has cited the danger of a huge level of bureaucracy as the reason real transparency cannot be achieved. This Bill is badly titled; instead of the Transparency of Lobbying Bill, it would be better and more accurate to describe it as a little bit of transparency on a little bit of lobbying Bill.
The Leader of the House did not revert to the attempt made by the former Minister, the hon. Member for Norwich North (Miss Smith), who suggested that there were plenty of examples of countries around the world that had statutory codes of conduct that suggested that such codes were unworkable. The one effort that the right hon. Gentleman made was to cite the American political system as being a reason that a statutory code of conduct would not work here. Not even the scale of incompetence that the coalition parties are managing to achieve in government comes close to the scale of dysfunctionality in the American political system at the moment. It is not a meaningful comparison to cite the American code of conduct; more sensible would have been to point to the examples of Australia and Canada, as I sought to do. Experience there does show that a statutory code of conduct can be made workable and enforceable, and could help to achieve the objective of delivering real transparency when lobbyists meet Ministers and indeed members of the House of Commons. A clear, basic code of conduct would avoid confusion over which voluntary register was the best one. It would offer clarity to the House and, indeed, to those in Government about the standards expected and required by those lobbying. I urge the Government to accept, even at this late stage, the benefit of having a code of conduct, even for the tiny number of lobbyists their Bill will cover.
My hon. Friend the Member for Nottingham North (Mr Allen), in a very well-judged speech, highlighted the number of loopholes that exist in the Bill. He cited the balance of evidence presented to the Political and Constitutional Reform Committee, suggesting that further information should be included in the register, including the scale of financial information, the subject matter of the lobbying, and the purpose of the lobbying activity. He noted that representations for that additional information had come to the Committee from a range of organisations as diverse as Spinwatch all the way through to the Royal College of Nursing.
Our amendments sought to inject that greater level of information and transparency into the process. I deeply regret that even at this late stage Ministers are not willing to consider even their own versions of the amendments. I therefore seek the opportunity to press the new clause to a vote and urge all Members of the House to support it.
Question put, That the clause be read a Second time.
The House proceeded to a Division.
New Clause 7
‘A person does not carry on the business of consultant lobbying if—
(a) the person is a constituent contacting or communicating with their Member of Parliament;
(b) the person is making communications solely on his or her own behalf;
(c) the person is responding to a government consultation exercise;
(d) the person is responding to an invitation to submit information or evidence to a Committee of either House of Parliament;
(e) the person is acting in an official capacity on behalf of a government organisation;
(f) the person is making communications without remuneration; or
(g) the person is responding to or complying with a court order.’.—(Chi Onwurah.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Amendment 68, in clause 2, page 2, line 1, leave out ‘a business’ and insert ‘their lobbying activity’.
Amendment 69, page 2, line 3, after ‘persons’, insert ‘or employer’.
Amendment 70, page 2, line 4, leave out paragraph (b) and insert—
‘(ba) the person concerned is trading as a sole trader or company, or is an employee of such a person’.
Amendment 97, page 2, line 8, leave out subsection (3) and insert—
‘(3) The communications within this subsection are oral or written communications made personally to a Member of either House of Parliament, a Minister of the Crown or permanent secretary or senior civil servant or special adviser relating to—
(a) the development, adoption or modification of any proposal of the Government to make or amend primary or subordinate legislation;
(b) the development, adoption or modification of any other policy of the Government;
(c) the making, giving or issuing by the Government of, or the taking of any other steps by the Government in relation to—
(i) any contract or other agreement,
(ii) any grant or other financial assistance, or
(iii) any licence or other authorisation; or
(d) the exercise of any other function of the Government.’.
Amendment 98, page 2, line 8, leave out subsection (3) and insert—
‘(3) The communications within this subsection are oral or written communications made personally to a Minister of the Crown or permanent secretary or senior civil servant or special adviser relating to—
(e) the development, adoption or modification of any proposal of the Government to make or amend primary or subordinate legislation;
(f) the development, adoption or modification of any other policy of the Government;
(g) the making, giving or issuing by the Government of, or the taking of any other steps by the Government in relation to—
(iv) any contract or other agreement,
(ii) any grant or other financial assistance, or
(iii) any licence or other authorisation; or
(h) the exercise of any other function of the Government.’.
Amendment 71, page 2, line 8, after ‘written’, insert ‘, including electronic,’.
Amendment 73, page 2, line 9, leave out from ‘communications’ to ‘relating’ in line 10 and insert ‘are made to government or parliament’.
Amendment 116, page 2, line 10, after ‘secretary’, insert ‘or special adviser’.
Amendment 72, page 2, line 12, after ‘subordinate’, insert ‘or European’.
Amendment 74, page 2, line 20, at end insert ‘or parliament’.
Amendment 75, page 2, line 21, leave out ‘Minister or permanent secretary’ and insert ‘person being lobbied’.
Amendment 76, page 2, line 25, leave out from beginning of line 25 to end of subsection (5) and insert— ‘
“government and parliament” includes within the United Kingdom—
(a) Ministers or officials of government departments;
(b) Members and staff of either House of Parliament;
(c) Special Advisers and senior civil servants;
(d) Non-Ministerial Departments, Non-departmental public bodies and executive agencies and their senior staff; and
(e) Advisers and consultants to government and parliament within the meaning of this subsection, who are not employed by, or seconded to government or parliament but have an official, if temporary, role.’.
Amendment 99, page 2, line 33, at end add—
‘“senior civil servant” means a person holding a position of Grade 5 or above in the Civil Service of the State.
“special advisor” had the same meaning as in the Constitutional Reform and Governance Act 2010.
Government amendment 30
Amendment 80, in schedule 1, page 52, line 7, leave out paragraph 4.
Amendment 83, page 53, line 26, leave out paragraph 12.
With your indulgence, Madam Deputy Speaker, I would like to start by paying tribute to the hon. Member for Norwich North (Miss Smith), following her decision to focus on her constituency and resign from the Cabinet Office. I wish her well, although those good wishes do not extend to success in the next general election campaign.
Everyone in the Opposition certainly felt for the hon. Lady, however, and I am sure that she is glad to be out from under this garland of an albatross, this dog’s dinner, this lobbyists’ charter—just some of the ways in which the Bill has been memorably described. Although there might be some debate about how best to describe the Bill—perhaps a dog’s dinner of an albatross—there is absolute unanimity that it is a total mess. Rarely have so many diverse groups been united in agreement—truly, the Government can claim to be a force for unity in the country in regards to the opposition they manage to inspire.
New clause 7 would ensure that some critical groups and individuals are not caught up in the Bill. One of the reasons the Bill attracts so much opposition is that it stands up for the powerful against the weak. A small firm of lobbyists, perhaps specialising in green technology on behalf of social enterprises that cannot afford to hire expensive lobbyists, will be caught up by the Bill and forced to pay possibly thousands to be on the register, but a 150-person-strong public affairs team in a big six energy company will absolutely not be caught. As the Public Relations Consultants Association has said, fewer organisations will be required to sign this register than are currently on the voluntary register. As a result, these consultancies, which will mainly be small and medium-sized enterprises because larger ones tend not to be exclusively lobbying businesses, will each be required to pay potentially thousands a year—not my estimate—mainly to register a list of names of staff and clients, which most of them already do.
With this Bill, it is hard to distinguish between the result of poor drafting and poor judgment on the part of the Government. Only a Government of startling incompetence could draft a so-called lobbying Bill that captures only 1% of lobbying activity. In an apparent attempt to address that, the Government have tabled some amendments, but as the chair of the Chartered Institute of Public Relations, Iain Anderson, said recently:
“The amendments have not changed the scope of the Bill's impact on the lobbying industry. It shows that they are not listening. There has been no change to the definition of those who lobby, and who they lobby. Rational arguments and Parliament’s wider concerns are being ignored.”
So there we have it. Rational arguments and Parliament’s wider concerns are being entirely ignored in the drafting and redrafting of the Bill.
It is not just lobbyists, however, who are queuing up to mock the Bill. In Committee, very few Government Back Benchers stood up to defend the Bill, and I see that there are hardly any here this evening. I hope that such as are here will support us in trying to change the Bill. In fact, not a single Government Back Bencher spoke in support of the Bill in Committee.
New clause 7 and its dependent amendments would make it clear who should be excluded from lobbying regulation and ensure that certain historic duties in relationships were not damaged. Paragraph (a) of the new clause would ensure that any person who was
“a constituent contacting or communicating with their Member of Parliament”
was not defined as being engaged in lobbying. We have already talked about the importance of the role of Members of Parliament in representing the interests of their constituents. We are all here because our constituents elected us to represent their views and interests here in Parliament, and the word “lobbying” relates to the ability of people to come here and find their representative —in the Lobby, perhaps—and ask them to do something or to vote in a certain way. Technology has changed the way in which we are lobbied, but this incompetently drafted Bill must not cast a shadow on the right of our constituents to lobby us, in whatever way they choose.
I hope that you will forgive me for going off at a slight tangent, Mr Speaker, but some of those new forms of contact and lobbying, including those used by campaign groups such as 38 Degrees, are threatened by part 2 of the Bill, which we shall discuss tomorrow. This leads me to question again whether this is a deliberate attempt to undermine our democracy or merely carelessness and an attempt to rush a Bill on lobbying on to the statute book before the next election, no matter how badly drafted and incompetently set out it might be. It is essential that the link between Members and their constituents should be protected, and not damaged—inadvertently or otherwise—by poor legislation.
Paragraph (b) of the new clause would add a person who was
“making communications solely on his or her own behalf”
to the list of exceptions. Similarly, paragraph (f) would adds a person who was
“making communications without remuneration”.
It is important that people should be allowed to communicate with the Government on their own behalf, and that communication with the Government that is not being paid for should not be disrupted. New clause 7 would ensure that those who were not paid for their lobbying would not have to bear a financial burden at the expense of big corporations and large firms. Nor should that burden fall solely on small and medium-sized enterprises, which is why we have tabled separate amendments widening the scope of the register.
Paragraph (c) of the new clause would exempt a person who was
“responding to a government consultation exercise”
and paragraph (d) would exempt a person who was
“responding to an invitation to submit information or evidence”
to a parliamentary Select Committee or Public Bill Committee. Similarly, paragraph (g) would exempt a person who was
“responding to or complying with a court order”.
Paragraph (e) would exempt a person
“acting in an official capacity on behalf of a government organisation”.
I think that hon. Members on both sides of the House would agree that those scenarios should not be caught up by the Bill simply because of poor drafting.
The other amendments in the group seek to extend the range of lobbying activities covered by what is supposedly a lobbying Bill. Amendments 68 and 69 would extend the range of such activities. Amendments 71 and 73 would widen the scope of the Bill. Amendment 71 in particular would widen its scope to include e-mails, an electronic form of communication that the Government might not value but which can certainly be used for lobbying. Amendments 74 and 75 would widen the scope of who it would be possible to lobby. Amendments tabled by my hon. Friend the Member for Nottingham North (Mr Allen), the Chairman of the Political and Constitutional Reform Committee, would ensure that it was not only permanent secretaries who could be lobbied.
I am eager to hear the response of the Leader of the House to the points raised. We have seen this evening a lack of willingness to consider making changes to the Bill, despite the almost complete unanimity of the lobbying industry—it stands strangely at one in this—in viewing this Bill as badly drafted and likely to reduce transparency in an industry that is well in need of increased transparency. That is contrary to what the Bill set out to do and contrary to the promise in both coalition parties’ manifestos to increase transparency. As I say, I am eager to hear the right hon. Gentleman’s reply. I am not sure how the Government intend to offer the protections that we seek without our amendment, but I look forward to hearing the right hon. Gentleman address the concerns that I have raised.
I shall make just a brief point in support of my amendment 116, which would make a simple change to list of people who, when lobbied, are to be subject to appropriate registration. At the moment, the list includes a Minister of the Crown or a permanent secretary, and my proposal is to add special advisers to that list. They are clearly a group of people known to be part of the political system operating out there as a bridge between Ministers, Departments and the public. It seems to me that they are naturally perceived to be people who can receive messages from lobbyists and pass them on to their political bosses. It would be good politics and not a complication to add this group of people to the list. I know that so far this has been considered but rejected by the Government. I hope that they will be open to the possibility of adding it either tonight or, if not, when the Bill goes to the other place for further consideration.
It is a rare occasion when one feels that the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) has been disappointingly brief. [Laughter.] I cannot remember any similar occasion.
I rise with a sense of excitement about the Bill because anyone who speaks to it will go down in parliamentary history as partaking in one of the worst Bills that has ever appeared before the House. Students of the future will study this with amazement—to think that a Bill of this kind could ever be introduced. Speaking to the amendments is rather like trying to chromium-plate a pile of horse dung, imagining that we could improve it in any way.
I feel sympathetic, as was said from the Front Bench, towards the hon. Member for Norwich North (Miss Smith), who as the responsible Minister was given the gloomy task of introducing this Bill to our Select Committee in July, on the last day before we went off for the summer recess. She had a torrid time, trying to defend the indefensible. I said that I was sympathetic to her, given that she was sitting there, garlanded with an albatross of nonsense. I am delighted to know that she has given up and gone to spend more time with the truth, having escaped from the Front Bench. I wish her well in her future career; it could not have got worse. I am sure that when she was assailed by this blizzard of e-mails—not from just 10 or 20 charities, but from hundreds—she realised how damaging the Bill was. These amendments would go some way to improving it.
As was said earlier, we should see the wheeze. Of course no hon. Member behaves badly; nothing done in this House or the other place would be dishonourable. The whole purpose behind the Bill and why it was introduced was to address hints of a scandal. It was not yet established, but there was a fear that a scandal had taken place, involving the country of Fiji. The matter has still not been settled, but there was also an equally minor scandal involving a Member of the other place with respect to the Cayman Islands.
We are in a very vulnerable position. The Member involved in the Cayman Islands case was doing something that would be absolutely forbidden in the House of Commons, but it was justified after the first stage of the investigation in the other House on the grounds that Members of that House are not paid and have to earn a few bob here and there. If they are taking money from another country—and there are Members in this House who are doing the same thing, acting as representatives of countries such as Azerbaijan and various other oppressive regimes—that is apparently okay. However, it is not okay. We have a serious group of scandals here that we are not addressing.
The right hon. Member for Bermondsey and Old Southwark suggested that we should include special advisers. Well, of course we should, and—one of the amendments deals with this—we should also include electronic mail. I believe that 500 e-mails were sent by one of Murdoch’s lackeys to a Secretary of State’s special adviser in an attempt to influence him in regard to a decision. Is it okay for the Bill not to cover that?
The Bill does not cover the great problems that we had with one particular Secretary of State who achieved absolution through resignation. There was a very worrying situation involving a lobbyist who was working for that Secretary of State. He was not employed by that Secretary of State, or by the Government; apparently, he was employed by certain right-wing think-tanks in America, but he was certainly present at private meetings, and was privy to all kinds of information. When the matter came out, it should have been referred to the adviser on ministerial interests, but it was not. The adviser resigned, and another was appointed. When our Committee held a hearing to consider whether the proposed replacement was the right man, we decided unanimously that he was not. We voted against it, but he got in. We said, “What we need is a Rottweiler, but what we have is a poodle.” We must deal with the lobbying that takes place at the highest level in respect of decisions to go to war and decisions to buy armaments.
Let me give an example of something that could happen here; indeed, something similar is happening here. In America, a couple called the Kagans were at Petraeus’s right hand. They were present at every private meeting that took place, and constantly advised Petraeus to beef up the aggression and play down the war movement. They were not employed by Petraeus, they were not employed by the military and they were not employed by the American Government. They were employed by the American arms industry. That gives us some clue as to why we have continual pressure for perpetual war to keep the orders going. Is that taken care of in the Bill?
We have a scandal in this country, which was revealed by The Sunday Times. Apparently, in the past 15 years the astronomical figure of 3,500 former civil servants have been working for the arms industry. Many members of the civil service now retire at a very early age and embark on a second career, using their civil service expertise and contacts files. In one instance, a General Kiszely offered his services. He said that when he went to the Cenotaph and was waiting for the Queen to turn up, there was not much else to do: one would not be thinking about the fallen. He said that it was a good marketing opportunity, and that he could talk to people there and settle contracts.
New clause 7, in particular, is designed to deal with the fact that the Advisory Committee on Business Appointments provides very weak rules to limit the way in which former Ministers, civil servants, generals and admirals can prostitute the knowledge that they gain when they are in high office in order to make as much money as they can afterwards. The problem is not the damage they do afterwards, because their knowledge is a wasting asset and soon becomes out of date. The great problem is this. When people are Ministers, top civil servants or heads of Department, what are they doing? When they have to settle contracts involving billions of pounds, do they say they will do so in the public interest and in the pursuit of best value for money, or in the back of their mind are they thinking that if they give the contract to firm A, B or C, one of them might do a deal with them and they may get their hacienda in Spain in retirement as a result of that decision? It is a deeply corrupting part of our system. ACBA never succeeds in limiting it; it has no powers. It can take any decision and give any advice, but it cannot impose those decisions.
In a fascinating television programme, the ACBA chair—
I would not want to deny the hon. Gentleman—a possible future Deputy Speaker of the House—that privilege. I believe that he is one of the candidates. It is fascinating to get these invitations. One from an hon. Lady said, “Vote for me and you won’t have to put up with me on the Benches. I will be silenced.” Therefore, we are voting for the one we most want to silence as a Deputy Speaker and we think is most loathsome. It is a hard task, because we have a rich choice.
We were waiting for the Bill. We were promised it on 10 March 2010. This was going to be the great crusading Parliament against lobbying. This was going to be the new scandal. Nothing happened: comatose for nearly three years. Suddenly there was a scandal on the way and the Government decided to act. The Bill was conceived in haste. It was written in fear and in malice. The legislative process has been conducted with incompetence. These modest amendments will make some improvements but it will be one of the many Bills that will go through the House. We are very poor at legislating.
We should look at the history. During the 13 years of the Labour Government, 75 Bills went through all their stages and were never put into practice. A permanent secretary has that figure. We have this disease. If we see a problem, what do we do? Dogs bark, children cry, politicians legislate. This is a piece of utterly futile legislation. It does not deal with the problem. It misses 97% of the problem but it takes a spiteful side-swipe at bodies that are blameless such as charities and trade unions. The Government are trying to save corporate lobbyists, who are doing the greatest damage, from the bureaucracy, and they have hit out at people who are doing no damage whatever. They are reducing bureaucracy for one and increasing needlessly bureaucracy for the other. This is an awful Bill.
As has been demonstrated, the effect of new clause 7 and the other amendments proposed by the hon. Member for Newcastle upon Tyne Central (Chi Onwurah) would be to bring into the register of lobbyists not just consultant lobbyists but all those who are in-house lobbyists. She knows that the approach we have taken is not to seek to create a register of everyone who engages in lobbying, which would be a very long list, but to ensure that the details of the meetings of the key decision makers—Ministers and permanent secretaries—are published and by extension we understand who is lobbying whom as far as the key decision makers are concerned. She rather shot her own fox by talking about the big six energy firms. The reason that earlier this week The Independent was able to run the story about the number of times that Ministers have met representatives of the big six energy firms is that we as a Government for the first time have published details of Ministers’ diaries. Putting the names of the big six energy firms in a register of lobbyists adds no information: we know who they are; we know on whose behalf they are lobbying; and we now know—as a result of this Government, not the previous Government—when they are meeting the key decision makers. That is clear. In this Bill we are extending transparency and addressing the key failing, and we are doing so not through having a large list of the kind the Opposition amendments would create.
New clause 7 proposes exceptions to the definition of those who are treated as consultant lobbyists. It may be of comfort to the hon. Member for Newcastle upon Tyne Central (Chi Onwurah) and the Opposition that there are some sensible exclusions from their concept of lobbying, but all those sensible exclusions are already provided for in the Bill. Some of the proposed exclusions are less sensible, however. In their explanation for amendment 70, the Opposition say that they seek to remove the reasonable requirement that consultant lobbyists must be VAT-registered, which is aimed at protecting small businesses engaged in consultant lobbying, and to insert in its place a requirement that the lobbyist be a
“sole trader or company, or employee of such a person”.
The amendment therefore excludes charities, partnerships and any other type of body a lobbyist might be. The Opposition would therefore reduce the effectiveness of the register in relation to consultant lobbyists.
The Chair of the Political and Constitutional Reform Committee said that we took a long time in responding to its report. That was because it was arguing for this large-scale regulatory structure for lobbying. We looked carefully over a substantial period of time at whether satisfactory definitions could be achieved, and they cannot. We would end up with very large-scale registers that tell us very little that is new.
Opposition amendments 73 to 76 and 83 would alter the definition in clause 2 with the intention of extending the scope of the register to those who lobby each of the many categories of people, including special advisers, senior civil servants, Members of either House of Parliament, parliamentary staff and non-departmental public bodies.
Amendment 97, tabled by members of the Select Committee, offered a more limited expansion of the scope, aimed at including special advisers, the senior civil service and, in the case of amendment 98, parliamentarians. Amendment 116, in the name of my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes), would extend the scope to special advisers.
The register is designed to complement the existing Government transparency regime whereby Ministers and permanent secretaries proactively publish details of their meetings with external organisations. It is intended to focus on communications with the key decisions makers in Government, not on the large-scale surrounds of people who are intermediaries. There is a question as to the value of increasing the scope of the ministerial transparency regime. Is there really value in collecting and publishing data on every meeting of every one of almost 5,000 senior civil servants?
Amendment 71 would add the term “electronic” to the concept of written communications. I can assure the House that such communications—including a fax, an e-mail, a text message, and even a personal tweet or BlackBerry Messenger conversation—are already currently captured by the definition of communications.
Turning to European legislation, amendment 72 would not be effective in the terms in which it is drafted. We do not make European legislation, but lobbying in relation to it or lobbying the policy of the Government in relation to it would be captured.
There is one Government amendment in this group: amendment 30. It provides that a person does not fall within the scope of the definition of consultant lobbyist if they carry out a mainly non-lobbying business and any consultant lobbying communication they make is incidental to those activities. Paragraph 3(2) of schedule 1 defines non-lobbying activities as any activities other than the making of communications about policy, legislation or contracts and tenders and so forth to any Executive, including the UK Government, the devolved Administrations, UK local government, any national Government, and any institution of the EU. This amendment will clarify that the reference to the lobbying of the Northern Ireland Executive in paragraph 3 includes the lobbying both of Ministers and their Departments. When the time comes, I shall wish to move that amendment on behalf of the Government, but I now give the hon. Member for Newcastle upon Tyne Central a moment to respond.
Proceedings interrupted (Programme Order, this day).
The Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Carrying on the business of consultant lobbying
Amendments made: 28, page 51, line 6, leave out paragraph 1.
Amendment 29, page 51, line 11, leave out paragraph 2.
Amendment 30, page 51, line 35, at beginning insert
‘the First Minister, the deputy First Minister, the Northern Ireland Ministers and’.—(Mr. Lansley.)
The Registrar of Consultant Lobbyists
Amendment made: 31, page 55, leave out lines 1 and 2 and insert—
‘( ) The payments that may be made under arrangements under sub-paragraph (1)(a) include payments to the staff in addition to, or instead of, payments to the person with whom the arrangements are made.’.—(Mr Lansley.)
Amendments made: 17, page 3, leave out lines 17 and 18 and insert—
‘() for each quarter in which the registered person has been entered in the register, the person’s client information (see section5(3)) or the statement under section5(5), and’.
Amendment 18, page 3, line 19, leave out ‘relevant pre-registration period’ and insert ‘pre-registration quarter’.
Amendment 19, page 3, line 22, leave out ‘relevant pre-registration period’ and insert ‘pre-registration quarter’.
Amendment 20, page 3, line 22, leave out ‘preceding’ and insert ‘ending on’.—(Mr Lansley.)
Notification of client information and changes
Amendments made: 21, page 3, line 44, leave out ‘any person’ and insert ‘the person or persons’.
Amendment 22, page 3, line 46, leave out ‘any person’ and insert ‘the person or persons’.—(Mr Lansley.)
Duty to update register
Amendment made: 23, page 4, line 15, leave out subsection (4) and insert—
‘( ) The Registrar must update the register to include any information or change which is notified in an information return.’.—(Mr Lansley.)
Duty to publish register
Amendment made: 24, page 4, line 34, leave out ‘and’ and insert—
‘( ) The Registrar’.—(Mr Lansley.)
Amendments made: 25, page 6, line 27, after ‘a’ insert ‘registered’.
Amendment 26, page 7, line 10, leave out ‘in any other case’ and insert ‘on summary conviction in England and Wales, or on conviction on indictment,’.— (Mr Lansley.)
Amendment made: 27, page 12, line 8, leave out from ‘means’ to end of line 10 and insert ‘—
(a) the First-tier Tribunal, or
(b) in any case where it is determined by or under Tribunal Procedure Rules that the appeal is to be heard by the Upper Tribunal, that Tribunal.’. —(Mr Lansley.)
Bill to be further considered tomorrow.