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Lobbying (Transparency) Bill [HL] - Committee

– in the House of Lords at 2:02 pm on 18th November 2016.

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Relevant document: 5th Report from the Delegated Powers Committee

Clause 1: Registrar of Lobbyists

Amendment 1

Moved by Lord Lansley

1: Clause 1, page 1, line 3, leave out “Secretary of State” and insert “Minister”

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I am grateful for the opportunity to speak to the amendments that I have tabled. They appear forbidding in number, but I encourage noble Lords to recognise that a large number of them are intended to put back into the legislation, were the Bill to be passed, the structures, duties and powers of the registrar in order to make the job of the registrar effective. I am not intending today to revisit the argument about the scope of the definition of what should be the subject of the register for lobbying, nor about who the lobbyists in question have to contact in order to be within the scope of the registrar.

I do not agree with the Bill—I make that perfectly clear—but the purpose of our Committee stage should at least be that, were the Bill to make further progress, it should be in a form capable of being enacted. I hope that noble Lords will understand the motivation behind most of my amendments. Some are trying to circumscribe it a little and ameliorate some of its rather expansive terminology, but most are in order to make it effective, if it could be so.

I should draw attention to my register of interests. I do not actually undertake any consultant lobbying but I suspect that what I do would be captured under the proposed register. I think that that is probably true for most Members of this House, frankly. It may not be—we need not argue about that—but it is probably best that we all make a declaration in any case that we might find ourselves in such a position.

I can be very clear about the first amendment. It is simply to make it so that the Minister in question can be a Minister from the Cabinet Office. As your Lordships will recall, I was a Minister in the Cabinet Office and I was the Cabinet Minister responsible for the Bill; I was the Lord Privy Seal. But actually the Minister in question who will be making appointments and undertaking other duties in relation to this Bill is very likely to be a Minister in the Cabinet Office and not a Secretary of State. It would therefore be more effective for the description to be that of a Minister. I beg to move.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

My Lords, I start by declaring no interest—although if this was carried, some years ago I would have been caught by it. I am grateful for the comments of the noble Lord. As he is aware, we are very short on time today and I intend to be as speedy as possible in addressing what he has put before us. I also intend to be as co-operative and helpful as I can be, and I even hope to persuade him not just to move amendments to make the Bill better, as he sees it, but possibly to see some merit in giving it further support. I invite him to think about that. I accept the amendment.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

My Lords, as has been noted, this amendment would reflect the normal practice that Ministers rather than Secretaries of State are referred to in legislation. While this change might be welcome for the sake of consistency, it does not change our overall position. We believe that the existing legislation as it stands is effective and we do not think that it needs to be supplemented.

Photo of Lord Lansley Lord Lansley Conservative

I am grateful for those responses.

Amendment 1 agreed.

Amendment 2

Moved by Lord Lansley

2: Clause 1, page 1, line 6, leave out paragraph (b)

Photo of Lord Lansley Lord Lansley Conservative

My Lords, the purpose of the second group of amendments is to remove from the Bill the intention that the Secretary of State should prepare and issue a code of conduct. Clause 1(3)(b) states that the Secretary of State should,

“prepare and issue a code of conduct”.

That is the subject of Amendment 2, and of course Clause 7 follows that in determining all the circumstances relating to a code of conduct. I will not go on at length. I think I was very clear at Second Reading that in my view there is a structure of voluntary codes that are more flexible, able to operate qualitatively and are therefore more appropriate to the task. This would be an unacceptable and unwise substitution of an inflexible and potentially much more limited statutory code for what in practice are developing as flexible voluntary codes. I beg to move.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

My Lords, as the noble Lord described, a variety of codes are on offer at present from different organisations. It seems to us that this causes confusion and leads to a lack of clarity, so there is a strong case for the type of standard code that operates in other places. But in the light of the issues that we have on timetabling and to move the business forward, we have reflected seriously on this and have looked at the group of amendments closely. On balance, we have decided to make a major concession and agree that a code of practice should not be included in the Bill this time round. I am therefore prepared to accept the amendment.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

My Lords, the Government believe that the self-regulatory codes administered by the lobbying industry work well, and the 2014 Act on transparency of lobbying aims to complement rather than replace the existing non-statutory codes. It is not necessary to regulate through a statutory code of conduct as the existing systems are working well. In that regard, the amendments in this group that remove the requirement for a statutory code of conduct would be welcome. However, they do not change our overall position: we cannot support the Bill as we believe that existing legislation achieves what it set out to do and that further regulation is not necessary.

Photo of Lord Lansley Lord Lansley Conservative

I am grateful to the noble Lord sponsoring the Bill for what he described as a “concession”. From my point of view it is a very welcome one. There are a number of codes. People may argue about their relative effectiveness. I know from observing the behaviour of some of the organisations—for example, the APPC—that the members on that register take this very seriously. They see it as their role to enforce it, to make judgments and to improve the code as they go along. It is demonstrating itself to be flexible. There are good instances of self-regulatory activity in this country and wherever we can support self-regulatory action we should.

I am grateful to the noble Lord. I take it that he is accepting Amendment 2 and that Clause 7 should not stand part of the Bill—as well as Amendment 14, which follows from that. I would be very grateful if the House would agree the amendment.

Amendment 2 agreed.

Amendment 3

Moved by Lord Lansley

3: Clause 1, page 1, line 11, leave out subsection (4) and insert—“(4) Schedule (The Registrar of Lobbyists) makes further provision about the Registrar.”

Photo of Lord Lansley Lord Lansley Conservative

My Lords, the purpose of Amendment 3 is to introduce a schedule that sets out the provisions of the establishment of the registrar, which directly parallel what is in the existing legislation, for which I was previously responsible. The schedule establishes the registrar as a corporation sole, and enables the registrar to sue, be sued and enter into contracts. It means that the registrar is not exposed as an individual but has a corporate entity. That can therefore create continuity. It enables the accounts and money to be provided by the Government by way of loans or grants, and it makes the accounts and activities of the registrar subject to examination by the Comptroller and Auditor-General and, if necessary, by the ombudsman.

I hope your Lordships agree that, if the Bill is enacted, this will enable a smooth transposition from the existing registrar structure to the registrar’s new responsibilities. I beg to move.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

I am grateful to the noble Lord for his comments. Again, they are acceptable. I will also move Amendment 31 in this group, which makes a minor amendment to take into account that this would extend the scope from the present arrangements to cover in-house lobbyists too, if it becomes law. It is an appropriate technical amendment to make.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

My Lords, the amendment would reproduce wording that is identical to Schedule 1 of the Transparency of Lobbying Act 2014. The schedule sets out the role and functions of the registrar. We believe that the 2014 Act effectively fulfils the purpose for which it was passed and that it does not need to be changed or amended.

Photo of Lord Lansley Lord Lansley Conservative

My noble friend will not be surprised that I agree with her, but since the Bill would repeal that schedule to the present Act, it is necessary, were the Bill to make progress, for the schedule to be reinserted. I am very grateful for the support on that issue. I beg to move.

Amendment 3 agreed.

Clause 1, as amended, agreed.

Clause 2: Definition of lobbyist

Amendment 4

Moved by Lord Lansley

4: Clause 2, page 2, line 4, after “or” insert “controlling”

Photo of Lord Lansley Lord Lansley Conservative

My Lords, in this group we are not in the territory of simply trying to put in place the necessary structures, powers and duties of the registrar, but are concerned with the definition of lobbying and who lobbyists are. I feel it is too wide-ranging. I do not want to have a debate at this stage on narrowing it right down, but there are some egregious examples, which are reflected in the amendment. So in Amendment 4 it should not apply to all shareholders but only to those who have a controlling interest. In Amendment 5, lobbying has to relate to government policy, statements and decisions: for it to include everything that relates to every government position seems excessive.

Amendment 6 would put us back in the position we are currently in and make the situation clearer, avoiding the worrying risk that we would have to decide when Members, particularly of this House, are acting in an official capacity. Is that everything that they do, on every subject, for every potential organisation which might ask us for our interventions or support? No; I think it is better to be very clear that payment, for this purpose, does not include payments to MPs and Peers. That is how it is reflected in the current legislation.

Amendment 7 reflects the current legislation and excludes statutory communications; so one cannot be required to register by virtue of the fact that one undertakes communications which one is required to do by law. Regarding Amendment 8, I was not happy that the exemption was well enough drawn to make it clear that the communications in question must be directed at public officials. If they are not directed at public officials they should not, therefore, be captured in the scope of the register.

Regarding Amendment 9, I could not understand why trade unions engaging in negotiations should be left out. When transparency is being pursued, why should it not apply to trade unions in the same way as anyone else? I was rather aghast at the presumption that media workers should be excluded from the transparency requirements altogether. The point is that when anybody is engaging in communication via the public media, that should be exempt, but media workers should not be exempt by definition, otherwise there is a risk that simply by virtue of the fact that one is employed by a media organisation, one would regard oneself as outwith the scope of the register. That should not be the case because one could, none the less, in practice be engaged in lobbying.

I realise that there are intrinsic merits in some of the amendments in this group, and people will argue about others. I hope your Lordships will find favour with one or two, particularly Amendments 6 and 7, on payments to MPs and Peers and the exclusion of statutory communications. I beg to move.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

My Lords, again I express my gratitude for the explanations the noble Lord has given for these amendments. I hope he will not be surprised to hear that I am going to accept most of them. In Amendment 4, “controlling” is perfectly acceptable. I shall leave Amendment 5 to one side for a moment. Amendment 6 is, I believe, from and identical to the previous legislation, which is already in force, and I am happy to accept it. I am prepared to accept Amendment 7. The wording of Amendment 8 is better than the original, so that is accepted too. The noble Lord might not be surprised, given my background, that the bit about trade unions appears in there. I do not have quite the same close links with the media, but I do my best there, where I can, and we are prepared to accept the amendment.

The one area I am not happy about is Amendment 5, which would delete “or position”. Again, I go back to my past experience. I was in the trade union movement for most of my life but also spent some time in business —I swapped sides, almost, so to speak. I was involved with people who were coming up with ideas about how they could make public service operations more effective. They would devise ideas and I would be part of that. We put the ideas in a bag and went to, for example, Australia and sought to persuade the Government that they could do a particular piece of public policy work better if only they would adopt what we had in mind. The Australian Government had no policy on that issue but we were able to persuade them that they should do it that way. Of course, we then bid for the business. We then took our portmanteau and went to Hong Kong and all round the world, persuading different Governments, in the UK as well. Often the Government were not running public services as efficiently as they could have been, and we came along with ideas on how they might change things.

However, such activities should be in the open. The public should be aware that efforts are being made to change not just the policy but the Government’s mind. We have a good example of that at the moment with Brexit. Technically, we have no real policy on Brexit, so far as I can understand—or that we have been able to elicit from the Government—but we know that positions have been reached and that people are lobbying. Technically, if you believe in transparency, that should be in the public domain. This is what the amendment would remove and it would limit the area in which it would take place. I hope I might persuade him that he should withdraw the amendment and reflect on it.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

My Lords, in some cases, such as Amendment 5, what is proposed seems to be a logical amendment to the original Bill. However, in others, such as Amendments 6 and 7, the wording is identical to that used in the 2014 Act. As those proposals already exist in statute, they would unnecessarily duplicate existing legislation. Overall, the Government believe that the definitions in existing legislation are effective and fulfil the regulatory aims the Government believe are necessary. As such, the definitions of “lobbying” and “lobbyists” do not need to be changed, as proposed in the original Bill or this group of amendments.

Photo of Lord Lansley Lord Lansley Conservative

I am grateful for those responses. As my noble friend on the Front Bench will understand, my purpose here is to try to see how these elements of the existing legislation should be incorporated into a Bill that would otherwise repeal the whole Part 1 of the original Act. They would be lost and I think they would need to be reincorporated before the Bill could properly make progress.

I am very grateful for the support of the noble Lord, Lord Brooke, on Amendment 4. On Amendment 5, I do not necessarily agree with the points he made but I do not think we should detain the Committee now. We can come back to it if we have the opportunity on Report. I am certainly willing to reconsider. For the moment, I do not plan to move Amendment 5.

I am grateful for what I think was the noble Lord’s acceptance of the other amendments, with the exception of Amendment 9, on the trade unions. I am not sure whether he was willing to let go—

Photo of Lord Lansley Lord Lansley Conservative

Very good. On that basis, I will not move Amendment 5 but will move the other amendments in due course.

Amendment 4 agreed.

Amendment 5 not moved.

Amendment 6

Moved by Lord Lansley

6: Clause 2, page 3, line 6, at end insert—“( ) For the purposes of subsection (8), payment does not include any sums payable to a member of either House of Parliament—(a) under section 4 (determination of MPs’ salaries) or 5 (MPs' allowances scheme) of the Parliamentary Standards Act 2009,(b) pursuant to a resolution of the House of Lords, or(c) otherwise out of money provided by Parliament or out of the Consolidated Fund.”

Amendment 6 agreed.

Clause 2, as amended, agreed.

Clause 3: Mandatory electrical safety checks

Amendments 7 to 10

Moved by Lord Lansley

7: Clause 3, page 3, line 24, at end insert—“( ) any communication which is required to be made by, or under, any statutory provision or other rule of law;”

8: Clause 3, page 3, line 28, leave out “widely and publicly available, such as a speech” and insert “to audiences which primarily include those who are not public officials, or to audiences in respect of which public officials are amongst a wider audience”

9: Clause 3, page 3, line 30, leave out paragraph (b)

10: Clause 3, page 3, line 34, leave out from “communication” to end and insert “made through publicly accessible media, including press and broadcast media”

Amendments 7 to 10 agreed.

Clause 3, as amended, agreed.

Clause 4 agreed.

Clause 5: Registration

Amendments 11 and 12 not moved.

Amendment 13 had been withdrawn from the Marshalled List.

Clause 5 agreed.

Clause 6 agreed.

Clause 7 disagreed.

Clause 8: Investigations by the Registrar

Amendment 14

Moved by Lord Lansley

14: Clause 8, page 5, line 44, leave out paragraph (b)

Amendment 14 agreed.

Clause 8, as amended, agreed.

Amendment 15

Moved by Lord Lansley

15: After Clause 8, insert the following new Clause—“Duty to monitorThe Registrar must monitor compliance with the obligations imposed by or under sections (Notice to supply information), (Limitations on duty to supply information and use of information supplied) and (Right to appeal against information notice).”

Photo of Lord Lansley Lord Lansley Conservative

We have happily arrived at the point where we would be by virtue of this group, which appears forbidding in its extent but is actually very straightforward. These amendments give the registrar the duties and powers that she has currently. They cover a range of things, including the issuing of information notices and the duty to monitor compliance with the register. The ability to issue information notices is in Amendment 16. Giving safeguards to those people to whom notices are issued is in Amendment 17 and a right of appeal for those people is in Amendment 18. The power to issue guidance on compliance with the register is in Amendment 27 and the ability to charge is covered by Amendment 28. A regulation-making power for the Minister in relation to the powers in the Bill is in Amendment 29. In so far as these amendments are re-incorporating powers that the registrar would need, I hope that they will find support from your Lordships.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

I will be moving Amendment 16A as well.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Business, Energy and Industrial Strategy), Shadow Spokesperson (Exiting the European Union), Shadow Spokesperson (Cabinet Office)

My Lords, Amendment 16A is in this group and I am sure that my noble friend Lord Brooke will speak to it.

I want to be clear on one point on Amendment 28, which we will come to in due course and is about the ability to charge. The noble Lord, Lord Lansley, may not like it but I think he is absolutely right—that is the end of his political career, but all our political careers are behind us—in that the regulators of virtually every sector, other than the Charity Commission, are funded by the sectors that they regulate. We have had an unhappy position with the Charity Commission when the Government were able to cut its funding, for understandable financial reasons. However, it leaves a regulator in some jeopardy if its running costs are, as in this case, in the hands of the Government—the very people who are being lobbied while we are trying to get a register of who is lobbying them. Amendment 28 is very important and I hope very much that my noble friend Lord Brooke will find it possible to accept this one.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

My Lords, I have some difficulties with this amendment. I declared at the beginning that I had no interests but I have been helped very considerably by a couple of NGOs, Spinwatch and Unlock Democracy. They have been very big parties to the preparation of the Bill and, in fairness to them, they are very unhappy indeed about any movement on my part on the charges side. They make the fundamental point of principle that it is open to anyone to lobby. It should be free, and there should not be any charge for anybody who engages in it, whether they be the highest in the land or the lowest. In particular, they are concerned that if charges are introduced charities may find it difficult, as might small businesses which might like to play a part in lobbying in one form or another and would have to register and pay, and that would be an imposition on them. They are strongly in favour of resisting any attempt to move away from what the Bill proposes, which is that the Government should bear the cost. They point out that in virtually every country in the world where there is a lobbying or transparency Act, the funding is from the Government. Scotland put a Bill through last year. It is coming into place, and the cost will be met by the Scottish Government. If we continue with charges, we will have a different approach within the UK, assuming this Bill becomes an Act.

We have taken one issue away to think about. People say I compromise too much, but I can see an area in which it might be possible to talk about a different approach. There would be charging to a degree, but we could conceivably think about the possibility that organisations, such as charities which are registered with the Charity Commission, should be exempt from charges. I would be happy to take this away and talk to my colleagues and to the noble Lord, Lord Lansley, if he is willing to withdraw the amendment on that basis. If not, at the end of day, as I am very keen that this legislation should move forward, I would back off and accept the amendment.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office) 2:30 pm, 18th November 2016

My Lords, I think I am probably beginning to sound a bit repetitive, I am afraid, but there we are. These amendments would largely repeat a number of sections of existing legislation. The Government believe that existing legislation is effective as it stands and does not need to be supplemented.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Business, Energy and Industrial Strategy), Shadow Spokesperson (Exiting the European Union), Shadow Spokesperson (Cabinet Office)

This is a slight aside, but I am sorry that the Government are taking this view. We know that they do not want the Bill, but it seems a shame that they are not engaging with how to make it as good as it can be—which the noble Lord, Lord Lansley, is doing—so that, should it become an Act, it can be made to work. I am sorry that the Government are taking the view that, because they do not like the whole Bill, they will not engage on its content. That is a small comment. There seems to be a slight loss of the expertise of the Cabinet Office and the Government to make this Bill as good as possible, even if, at the end of the day, we do not manage to get it on the statute book.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

As the noble Baroness obviously realises, the Government feel that the Act we already have is the right one. Our aim was for lobbying regulation to avoid unnecessary burdens, not to establish top-to-bottom regulation of all who lobby. That is why we set up an appropriate way to ensure high levels of transparency, but only in the specific areas of the lobbying industry where that was needed, and that is the Government’s position.

Photo of Lord Lansley Lord Lansley Conservative

Perhaps I may defend my noble friend on the Front Bench in this respect. She was aware that I was going through the Bill with the benefit of having been responsible for the original legislation. I think she did not feel that the work was not being done—it was just not being done by the Government, which would give the misleading impression that the Government were seeking to make this legislation in a form that they felt was worthy of enactment. It is okay for me to do that from the Back Benches, but I do not think it is quite the same thing for the Government to try to do it—so I do see a difference.

On this group, I am very grateful for the support for a number of the amendments. On Amendment 28, relating to charging, I am going to disappoint the noble Lord, Lord Brooke of Alverthorpe, by persisting—but I shall say two things that might comfort him. First, the structure of the amendment, which obviously reflects what is in the current Act, enables the registrar to impose charges but does not require them to impose charges in any particular form. The form in which those charges are to be imposed would be the subject of regulations under the Act, which would have to come here and be approved by this House. It is perfectly open to the Minister, in making those regulations, to clarify where there may be exemptions. It would not require everybody to pay the same charges for the same register entry or for the same service, so there may be the ability to modulate the charging. If the Government were considering regulations, they could look at this and at whether it would be appropriate to modulate charges for the organisations that would otherwise find there was some chilling effect resulting from that.

So I will persist with this, and I hope the noble Lord might let us reflect the fact that it is necessary for regulators—in this case the registrar—to meet the cost of their activity through charging. On this group, I will move Amendment 15, and I hope to persist with the others, while accepting Amendment 16A, which is a helpful addition.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

My Lords, as your Lordships probably recognise, I am in a little difficulty here, particularly with my noble friend, with whom I have worked very closely on this. I hear the explanation which has been given and see a chink of light on the degree of elbow room which already exists. I am particularly anxious that we try to proceed with the Bill and hope that the Minister may be persuaded that there are elements in here which the Government should be concerned about. I am particularly pleased that the noble Lord, Lord Lansley, has, I think, accepted an extension of the requirement to register and be open to in-house lobbyists as well as the professional lobbyists.

I am keen that the Bill moves forward. I can understand the Minister’s difficulty, but she could redeem herself if she could see a way to arrange a meeting with the responsible Minister for us to talk about the fundamentals in the Bill. Perhaps the noble Lord, Lord Lansley, might wish to join that meeting, along with at least two noble Lords who I know are very keen indeed to see this Bill, which is well supported across the House, move forward. If the Minister is not giving much today, perhaps she might be willing to try to facilitate that for us in the future. On that basis, I am prepared to accept the amendments.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

I will quickly say that of course I would be more than happy to facilitate a meeting. I always think that meetings are an enormous help in this House, and I will make sure that the office goes ahead and organises that meeting.

Amendment 15 agreed.

Amendment 16

Moved by Lord Lansley

16: After Clause 8, insert the following new Clause—“Notice to supply information(1) In connection with the duty under section (Duty to monitor), the Registrar may serve a notice (an “information notice”) on a person mentioned in subsection (2) requiring the person to supply information specified in the notice.(2) The persons are—(a) any registered person;(b) any person who is not entered in the register but whom the Registrar has reasonable grounds for believing to be a consultant lobbyist.(3) Regulations may specify descriptions of information which the Registrar may not require a person to supply under this section.(4) An information notice must—(a) specify the form in which the information must be supplied,(b) specify the date by which the information must be supplied, and(c) contain particulars of the right to appeal under section (Right to appeal against information notice).(5) The date specified under subsection (4)(b) must not be before the end of the period within which an appeal under section (Right to appeal against information notice) can be brought.(6) Section (Limitations on duty to supply information and use of information supplied) sets out limitations on—(a) what information is required to be supplied under a notice, and(b) how information which is supplied may be used.(7) Where an information notice has been served on a person, the Registrar may cancel it by serving written notice to that effect on the person.”

Amendment 16A (as an amendment to Amendment 16)

Moved by Lord Brooke of Alverthorpe

16A: After Clause 8, in subsection (2)(b), after “lobbyist” insert “or an in-house lobbyist”

Amendment 16A agreed.

Amendment 16, as amended, agreed.

Amendments 17 and 18

Moved by Lord Lansley

17: After Clause 8, insert the following new Clause—“Limitations on duty to supply information and use of information supplied (1) An information notice does not require a person to supply information if—(a) doing so would disclose evidence of the commission of an offence, other than an offence excluded by subsection (2), and(b) the disclosure would expose the person to proceedings for that offence.(2) The following offences are excluded from subsection (1)—(a) an offence under section 9 of this Act;(b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath);(c) an offence under section 44 of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath);(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (SI 1979/1714 (NI 19)) (false statutory declarations etc).(3) Any relevant statement made by a person (“P”) in response to a requirement in an information notice may not be used in evidence against P on a prosecution for an offence under section 9 unless the conditions in subsection (4) are met.(4) The conditions are that in the proceedings—(a) in giving evidence P provides information inconsistent with the relevant statement, and(b) evidence relating to the statement is adduced, or a question relating to it is asked, by P or on P's behalf.(5) In subsection (3) “relevant statement”, in relation to a requirement in an information notice, means—(a) an oral statement, or(b) a written statement made for the purposes of the requirement.”

18: After Clause 8, insert the following new Clause—“Right to appeal against information notice(1) A person on whom an information notice has been served may appeal to the Tribunal against the notice.(2) If an appeal is brought under this section, the person is not required to supply the information until the date on which the appeal is finally determined or withdrawn.(3) Regulations may make provision for and in connection with the determination of appeals under this section.”

Amendments 17 and 18 agreed.

Clause 9: Offence of lobbying without being registered

Amendment 19

Moved by Lord Lansley

19: Clause 9, page 6, line 19, at end insert—“(2A) It is a defence for a person charged under this section to show that the person exercised all due diligence to avoid committing the offence.”

Photo of Lord Lansley Lord Lansley Conservative

Your Lordships will be pleased to know we have arrived at the final group, in which the amendments all relate to the question of offences. The structure of the Bill as it stands is such that if there was a breach of the requirements of the register, the registrar would be able to proceed only by way of seeking to impose a criminal penalty in respect of the breach, whereas the current legislation enables the registrar to act in other—and in my view more proportionate—ways by seeking a civil penalty.

The purpose of most of these amendments is therefore to introduce the option of a civil penalty and the various requirements that go with that: a civil penalty regime in Amendment 20; a requirement to notify someone who is believed to be in breach and the civil penalty that would be imposed under Amendment 21; the character of the notice under Amendment 22; the right of appeal against that under Amendment 23; the relationship of the civil penalty to any criminal offence so as not to create double jeopardy under Amendment 24; the enforcement if a civil penalty is imposed as a civil debt under Amendment 25; and further details relating to the civil penalty under Amendment 26.

Amendment 19, the lead amendment that I am moving now, is about due diligence. It illustrates the difference between a criminal offence and the civil penalty since, if someone was guilty of an administrative oversight in relation to the requirement to register, essentially the registrar observing this breach would be inclined to go down the route of a civil penalty if it was sufficiently serious. One would be very unlikely to want to create a criminal offence for those kinds of administrative oversights. If someone has failed to comply with the register but has applied due diligence, it is important that they would have a defence of due diligence against a criminal offence; however, where a civil penalty is concerned on something like an administrative oversight, there should not really be that kind of defence. So this replicates the existing structure of penalties, I think it is more proportionate and I hope it will commend itself to the House. I beg to move.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

I am happy to accept.

Amendment 19 agreed.

Clause 9, as amended, agreed.

Amendments 20 to 26

Moved by Lord Lansley

20: After Clause 9, insert the following new Clause—“Civil penalties(1) The Registrar may impose a civil penalty on a person (in accordance with sections (Notice of intention to impose civil penalty), (Imposition of penalty), (Right to appeal against imposition of civil penalty) and (Civil penalties and criminal proceedings)) if the Registrar is satisfied that the person's conduct amounts to an offence under section 9.(2) For this purpose—(a) section 9(2A) is to be ignored, and(b) a person's conduct includes a failure to act.”

21: After Clause 9, insert the following new Clause—“Notice of intention to impose civil penalty(1) Before imposing a civil penalty on a person, the Registrar must serve on that person a notice stating that the Registrar proposes to impose the penalty. (2) The notice must—(a) set out the conduct on which the proposal to impose the penalty is based,(b) set out the reasons why the Registrar is satisfied that the person has engaged in that conduct,(c) state the amount of the proposed penalty, and (d) inform the person that the person may, within a period specified in the notice, make written representations in relation to the proposal.(3) The Registrar must not impose the penalty before the end of the period specified under subsection (2)(d).(4) The Registrar must consider any written representations received before the end of that period.”

22: After Clause 9, insert the following new Clause—“Imposition of penalty(1) If the Registrar decides to impose a civil penalty, the Registrar must serve on the person a notice to that effect (a “penalty notice”).(2) The notice must—(a) set out the conduct on which the decision to impose the penalty is based,(b) set out the reasons why the Registrar is satisfied that the person has engaged in that conduct,(c) state the amount of the penalty,(d) specify the period within which and the form in which the penalty must be paid, and(e) contain particulars of the right to appeal under section (Right to appeal against imposition of civil penalty).(3) The amount specified in a penalty notice must not exceed £7,500.(4) Regulations may amend subsection (3) by substituting a different maximum figure.(5) The period specified under subsection (2)(d) must not end before the end of the period within which an appeal under section (Right to appeal against imposition of civil penalty) can be brought.(6) The person must pay the amount before the end of that period (but this is subject to section (Right to appeal against imposition of civil penalty)(2)).(7) Where a penalty notice has been served on a person, the Registrar may vary or cancel it by serving written notice to that effect on the person.”

23: After Clause 9, insert the following new Clause—“Right to appeal against imposition of civil penalty(1) A person on whom a penalty notice has been served may appeal to the Tribunal against—(a) the decision to impose the penalty;(b) if the penalty notice has been varied, the decision to vary it;(c) the amount of the penalty.(2) If an appeal is brought under this section, the person is not required to pay the penalty until the date on which the appeal is finally determined or withdrawn.(3) Regulations may make provision for and in connection with the determination of appeals under this section.”

24: After Clause 9, insert the following new Clause—“Civil penalties and criminal proceedings(1) The Registrar may not impose a civil penalty on a person in respect of any conduct—(a) at any time after criminal proceedings for an offence under section 9 have been instituted against the person in respect of that conduct and before those proceedings have been concluded, or (b) after the person has been convicted of an offence under section 9 in respect of that conduct.(2) If the Registrar has imposed a civil penalty on a person in respect of any conduct, the person may not be convicted of an offence under section 9 in respect of that conduct.”

25: After Clause 9, insert the following new Clause— “Enforcement(1) An amount payable to the Registrar as a civil penalty may be recovered by the Registrar as a debt.(2) In proceedings for the enforcement of a civil penalty no question may be raised as to—(a) liability to the imposition of the penalty, or(b) the amount of the penalty.(3) The Registrar must pay into the Consolidated Fund any sums received by virtue of a penalty notice.”

26: After Clause 9, insert the following new Clause—“Further provision about civil penaltiesRegulations may make further provision about civil penalties; and in particular may—(a) specify circumstances in which a penalty may not be imposed;(b) specify steps that the Registrar must take before imposing a penalty;(c) set a minimum for the period which must be specified under section (Notice of intention to impose civil penalty)(2)(d) or (Imposition of penalty)(2)(d);(d) require other matters to be specified in a notice under either of those sections;(e) specify a maximum period that may elapse between the service of a notice under section (Notice of intention to impose civil penalty) and the service of a penalty notice under section (Imposition of penalty);(f) provide for the reviewing of a decision to impose a penalty;(g) make provision about the variation or cancellation under section (Imposition of penalty)(7) of penalty notices;(h) impose duties on the Registrar about the keeping of accounts and other records in relation to penalties;(i) allow for the charging of interest, or an additional penalty, if a penalty is paid late.”

Amendments 20 to 26 agreed.

Clause 10 agreed.

Amendments 27 to 29

Moved by Lord Lansley

27: After Clause 10, insert the following new Clause—“Guidance(1) The Registrar may give guidance about how the Registrar proposes to exercise the functions under this Act.(2) The Registrar may do so, in particular, by publishing guidance—(a) as to the circumstances in which the Registrar would, or would not, consider that a person is carrying on the business of consultant lobbying;(b) as to the circumstances in which the Registrar would remove a person's entry from the register;(c) as to the circumstances in which the Registrar would consider it appropriate to impose a civil penalty;(d) about how the amount of a civil penalty will be determined.(3) The Registrar may publish—(a) revisions to any guidance published under this section;(b) replacement guidance.(4) Publication under this section is to be—(a) on a website, and(b) in such other form or forms as the Registrar considers appropriate.”

28: After Clause 10, insert the following new Clause—“Charges(1) The Registrar may impose charges for or in connection with the making, updating and maintenance of entries in the register.(2) The charges are to be determined by or in accordance with regulations.(3) In making the regulations, the Minister must seek to ensure that the total paid to the Registrar in charges is sufficient to offset the total of the costs incurred by the Registrar in exercising the functions under this Part (whether or not those costs are directly connected with the keeping of the register).(4) If a charge imposed for making an application or a return to the Registrar is not paid, the Registrar may treat the application or return as not having been made.(5) The Registrar must pay into the Consolidated Fund any sums received in respect of charges under this section.”

29: After Clause 10, insert the following new Clause—“Regulations(1) Any reference in this Act to regulations is to regulations made by the Minister.(2) Regulations under this Act may make such consequential, supplementary, incidental or transitional provision as the Minister considers appropriate, including provision amending or modifying the provisions of this Act.(3) Regulations under this Act may make different provision for different purposes or cases.(4) Regulations under this Act are to be made by statutory instrument.(5) A statutory instrument containing any of the following regulations may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament—(a) the first regulations to be made under sections (Right to appeal against information notice) (3) and (Right to appeal against imposition of civil penalty) (3);(b) regulations under this section or section (Charges) which amend or modify the provisions of this section or that section.(6) Any other statutory instrument containing regulations under this Act is to be subject to annulment in pursuance of a resolution of either House of Parliament.”

Amendments 27 to 29 agreed.

Clauses 11 and 12 agreed.

Amendment 30

Moved by Lord Lansley

30: After Clause 12, insert the following new Schedule—“SCHEDULETHE REGISTRAR OF LOBBYISTSStatus1_ The Registrar is a corporation sole.2_ The Registrar exercises the functions of that office on behalf of the Crown.Appointment3_(1) The Registrar is to be appointed by the Minister.(2) The Registrar holds office in accordance with the terms and conditions of that appointment; but this is subject to sub-paragraphs (3) to (6).(3) The term of office for which the Registrar is appointed must not be more than 4 years.(4) A person may be appointed for a second or third term; but the term for which a person is re-appointed must not be more than 3 years. (5) The Registrar may resign by giving written notice to the Minister.(6) The Minister may dismiss the Registrar if the Minister is satisfied that the Registrar is unable, unwilling or unfit to perform the functions of the office.4_(1) A person is ineligible for appointment as the Registrar if, at any time in the previous 5 years, the person—(a) was a Minister of the Crown or a permanent secretary, or(b) carried on the business of consultant lobbying or was an employee of a person who carried on that business.(2) For the purposes of this paragraph—“Minister of the Crown” means the holder of an office in the government, and includes the Treasury;“permanent secretary” means a person serving the government in—(a) the position of permanent secretary or second permanent secretary in the civil service of the State, or(b) one of the following positions—(i) Cabinet Secretary;(ii) Chief Executive of Her Majesty's Revenue and Customs;(iii) Chief Medical Officer;(iv) Director of Public Prosecutions;(v) First Parliamentary Counsel;(vi) Government Chief Scientific Adviser;(vii) Head of the Civil Service;(viii) Prime Minister's Adviser for Europe and Global Issues.(3) Regulations may amend the positions in the list above by adding or removing a position.5_ A defect in the Registrar's appointment does not affect the validity of anything done by the Registrar.Remuneration and staffing6_ Service as the Registrar is not service in the civil service of the State.7_(1) The Registrar may make arrangements for sums in respect of the following to be paid to or in respect of the person holding office as the Registrar—(a) remuneration;(b) allowances;(c) pension.(2) The sums paid under sub-paragraph (1) are to be determined by the Minister.8_(1) The Registrar may make arrangements with the Minister or other persons—(a) for staff to be seconded to the Registrar;(b) for accommodation or services to be provided to the Registrar.(2) 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. Accounts9_(1) The Registrar must keep proper accounts and proper records in relation to the accounts.(2) The Registrar must prepare a statement of accounts in respect of each financial year.(3) The Registrar must send a copy of the statement, within a period specified by the Minister, to the Comptroller and Auditor General.(4) After the Registrar has sent a copy of a statement of accounts to the Comptroller and Auditor General, the Comptroller and Auditor General must—(a) examine, certify and report on the statement, and(b) arrange for a copy of the certified statement and the report to be laid before Parliament as soon as possible.(5) In this paragraph “financial year” means—(a) the period beginning on the day on which section 1comes into force and ending on the following 31 March, and(b) each successive period of 12 months.Funding10_(1) The Minister may make grants or loans to the Registrar.(2) The grants or loans may be subject to conditions (including conditions as to repayment with or without interest).Amendment of other enactments11_ In Schedule 1 to the Public Records Act 1958 (definition of public records) at the appropriate place in Part 2 of the Table at the end of paragraph 3 insert—“The Registrar of Lobbyists”.12_ In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments and authorities subject to investigation) before the entry for the “Registrar General for England and Wales” insert—“The Registrar of Lobbyists”.13_ In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public bodies and offices which are public authorities) at the appropriate place insert—“The Registrar of Lobbyists”.”

Amendment 31 (to Amendment 30)

Moved by Lord Brooke of Alverthorpe

31: After Clause 12, in paragraph 4(1)(b), after “business” insert “or was an in-house lobbyist”

Amendment 31 agreed.

Amendment 30, as amended, agreed.

House resumed.

Bill reported with amendments.

House adjourned at 2.44 pm.