Towards Regulation in the UK: From `General Good Sense' to `Formalised Rules'.
The controversy about lobbying has if anything increased in the most recent years, but the focus of attention has moved most recently from the activities of commercial lobbyists on Parliament to the action of legislators within Parliament.(2) The Committee on Standards in Public Life (the Nolan Committee), set up by John Major in October 1994 after a succession of scandals, and claims about possible scandals, recommended barring MPs from selling `their services to firms engaged in lobbying on behalf of clients' (Standards in Public Life, Cm. 2850 -I, May 1995). The complaints about the activities of MPs were normally, but not always, about behaviour that was tawdry rather than significant: MPs were, for example, found to be active in allowing the use of Westminster as a for-hire venue. The Independent on Sunday reported in July 1994 that in one year the two largest dining rooms were booked 1,399 times by Conservative Members and 167 by Labour. The same paper had reported in August 1991 that `The huge increase in demand coincided with the boom of lobbying in the mid and late 1980s. Lunches, dinners cocktail parties or book launches are all available at a price through the right channels ... Corporate junketing is arranged without much difficulty ... Singapore Airlines will host a reception at the Commons. The airline delegated the task to its PR firm. They arranged for the reception to be sponsored by a Conservative MP, who lists a consultancy with that firm in the register of members' interests.' A sign of the times was that journalists by 1996 could casually remark without appearing too outrageous that `In the relaxed world of Thatcher's Westminster, where MPs could be hired like taxis to represent a client's interests, Ian Greer found no shortage of MPs willing to help him as business boomed' (Scotland on Sunday, 6.10.96). As a result of an accumulation of such newspaper articles, and the consequent Nolan Committee, there are now two different, if related, discussions about lobbying going on in Britain: the more prominent is about the controlling the lobbying behaviour of MPs and now the (decidedly) second in importance is about the regulation of lobbying consultancies.
Regulating the Members
`This House agrees with the recommendations in the Second Report from the Select Committee on Standards in Public Life in relation to the cessation of paid advocacy' (Resolution of House of Commons, 6 November 1995). In his evidence to the Nolan Committee Professor Ivor Crewe argued `Whenever surveys have asked people to compare various occupations for honesty, trustworthiness or a moral example, Members of Parliament have been at or near the bottom of the league, competing with estate agents and journalists to avoid the wooden spoon.' He noted a 1994 Gallup survey which found 64% of the public agreeing that `most MPs make a lot of money by using public office improperly (up from 46% in 1985), while 77% thought `MPs care more about special interests than about people like themselves' (up from 67% in 1985).(3)
The long-standing textbook position (and as captured in the official guide to Parliamentary Practice (Erskine May)) seemed to unambiguously rule out the sorts of relations with outside interests that would cause public concern. As rehearsed in Chapter 2 of the Nolan Report, in 1695 the House resolved that the `offer of 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.' In 1858 the House resolved that `It is contrary to the usage and derogatory to the dignity of this House that any of its Members should bring forward, promote or advocate in this House any proceeding or measure in which he may have acted or been concerned for or in consideration of any pecuniary fee or reward.' As a result of a classic controversy in 1946 about the contract between the Civil Service Clerical Association and its `Parliamentary General Secretary', W.J. Brown, Independent MP for Rugby, the House in July 1947 approved a motion: `This House agrees with the Report of the Committee on Privileges, and in particular declares that it is inconsistent with the dignity of the House, with the duty of a Member to his constituency, and with the maintenance of the privilege of freedom of speech, for any Member of the House to enter into any contractual agreement with an outside body, controlling or limiting the Member's complete independence and freedom of action in Parliament or stipulating that he shall act in any way as the representative of such outside body in regard to any matters to be transacted in Parliament; the duty of a Member being to his constituency and to the country as a whole, rather than to any particular section thereof.'
This again seemed pre-emptively to prohibit much that was later to be disputed. Nonetheless, for further clarification the 1969 the Select Committee on Members' Interests (Declaration), known as the Strauss Committee, proposed: `That it is contrary to the usage and dignity of the House that a Member should bring forward by any speech or question, or advocate in this House among his fellow Members any Bill, Motion, matter or cause for a fee, payment, retainer or reward, direct or indirect, which he has received, is receiving or expects to receive.' This forceful reiteration of what appears to have been the underlying assumption for some time was never debated however, and following interparty negotiations the then Leader of the House (William Whitelaw) reported in 1971 that it had been agreed that `the Resolutions proposed would in certain circumstances, be very much more restrictive than would be wise ... There is widespread support in the House for the view that it is right to rely on the general good sense of Members rather than formalised rules.' But in May 1974, following the Poulson scandal, the topic was returned to yet again and a Resolution of the House stated: `In any debate or proceeding in the House or its Committees or transactions which a Member may have with other Members or with Ministers or servants of the Crown, he shall disclose any relevant pecuniary interest or benefit of whatever nature, whether direct or indirect, that he may have had, may have or be expecting to have.'
Despite the regular attempts at articulating what appeared to be comprehensively restrictive rules, the controversy about lobbying did not disappear: repeated attention to this topic seems to indicate that the rules were not as robust as they sounded. As a consequence of the controversy in 1974,(4) a Register of Members' Interests was introduced in 1975 (a House of Lords version was created in 1996). The new register was a way of policing something that seemed from the tone of the serial Resolutions on the matter to be comprehensively banned. As in other areas of British political and administrative life a gap had appeared between the discourse and the `actualite'.(5) The style and content of the discourse was an effective way of inhibiting investigation in this area: those using it perhaps even deluding themselves that all was beyond reproach. Even now, the Nolan Committee verdict--though clear--was obliquely worded: `A Member ought not to pursue a cause more forcefully than might otherwise have been the case as the result of a financial interest. We believe that such action would breach the spirit if not the letter of the 1947 resolution, and we cannot be confident that all Members are as scrupulous in this respect as some have claimed to be.'
So, ironically, the emergence of the register really indicated that the general rules were not proving to be effective. It was not a case of `belt and braces' to make the matter absolutely clear, but the introduction of a belt because the braces were defective. The Select Committee on Members' Interests in 1992 argued, `Members who hold consultancy and similar positions must ensure that they do not use their position as Members improperly. A financial inducement to take a particular course of action may constitute a bribe and thus be an offence against the law of Parliament.'
The cumulative message of these successive versions of prohibition could be read as suggesting that there was clear understanding of what was and was not acceptable, but a more realistic interpretation is that this repetition came about because of continuing uncertainty and stretching of understandings. Specific claims that actual behaviour fell short of the behaviour implied by the rules have been discouraged by British libel laws(6) and a tendency to generalised pomposity by MPs when this is discussed, but few would disagree with the diplomatically worded observation of the former Prime Minister, Lord Callaghan, that `We have slipped into an easing of these sorts of arrangements rather than taken a deliberate decision about it, and our own standards, I think, have fallen into disuse in some ways.' There is a least some cause to agree with some of the claims of the former MP, Neil Hamilton, who was found by the Eighth Report of the Standards and Privileges Committee to have failed to register introduction fees, hospitality with commercial interests--House of Fraser and Skoal Bandits-within the terms of the Commons rules. His argument was that his behaviour was consistent with the widespread behaviour which some observers see-though he did not--as quite inconsistent with the flavour of the rules repeatedly noted above. He claimed on a television programme on 13 October 1997: `I am going to name names of those who are in the same position as myself and if I am to be condemned they must be condemned as well so that my case can be seen in perspective ... If the rules are going to be reinterpreted after the event and applied retrospectively then I'm not going to be the only victim, because Members of Parliament behaving perfectly properly and bona fide are now going to be condemned on the basis of rules that have changed.' With hindsight it might be more accurate to say that Hamilton was not penalised because rules had changed, but because they were belatedly enforced. The Nolan Report made the point in understated fashion, `Guidance associated with the Register of Members' Interests has lead to some confusion among MPs as to what conduct is acceptable. The long established law of Parliament in this area should be reaffirmed.' The climate within Parliament had become such that when journalists pretending to be businessmen seeking to `buy' the tabling of Parliamentary Questions, this triggered an investigation by the Committee of Privileges (HC 351, 1994-95), it found three cases proved.
As the Nolan Committee astutely observes, the creation of the more regulatory looking Select Committee on Members' Interests, `designed to further the wholly admirable concept of disclosure of interests, has tended to create a false impression that any interest is acceptable once it has been registered'. It therefore noted that the 1947 resolution prevents a Member from agreeing to act for a client in Parliament, but the rules governing the Register of Members' Interests expressly contemplate that the Member may have received material benefits `which might reasonably be thought by others to influence his or her actions, speeches or votes in Parliament'.
Popular reaction is that acceptance of payment is by definition wrong, but to an extent behaviour is being reconsidered by standards not really clear in the 1980s (though, with hindsight, it is not really obvious that Members should have been as confused about matters as they now claim). While those arguing that somehow this was a grey area cannot claim that asking questions for payment was ever unproblematic, the only formal qualification of the general principle in the past seems to have been that a declaration of interest was not required in voting or in asking a supplementary question. (Resolutions of House, 12 and 19 July 1995). The Committee noted: `Frequently in our work we heard the expression "grey area" used as a rationalisation of morally dubious behaviour. The ubiquity of the phrase, and the implication that some no longer seem to be certain of the difference between what is right and what is wrong in public life, concern us.' It wryly observed that they doubted if Erskine May was closely read by all Members.
The alleged grey area was of particular relevance in connection with the paid activities of MPs. Members of Parliament seemed prone to argue that unless something was expressly forbidden, it was possibly acceptable. And even if it seemed to others that action was expressly forbidden, then it still might be acceptable to some Members. In September 1997 the press revealed that the former Liberal leader, Lord Steel, had as a Liberal Democrat MP accepted 94,000 [pounds sterling] from the Countryside Movement as part-time chairman (one and a half to two days work per week for 18 months). This was properly registered in the Register of Members' Interests but still allows public disquiet not that he was breaking the rules, but that he was doing this while not breaking the rules. The argument that this was an open arrangement in that anyone could have inspected the accounts of the organisation in Companies House strains the spirit of the Nolan reforms.
The Nolan Committee investigation in the main focused on the role of MPs as lobbyists rather than the broad issue of the lobbying of MPs and others by other interests. The first reference by the Nolan Report to MPs tersely noted, `A fall in public confidence in the financial probity of MPs has coincided with an increase in the number of MPs holding paid consultancies which relate to their parliamentary role. Some 30% of backbench MPs now hold such consultancies.' It found that 26 members had consultancy agreements with public relations or lobbying firms, while a further 142 had consultancies with other types of company or trade associations. (The Nolan focus was very much on that first small number of MPs and the even smaller number of companies with which they were in contact.) These 168 Members held 356 consultancies between them. Moreover, 184 Members had sponsorship arrangements with trade unions: while this financial support was generally limited to a payment of the Member's constituency office and election expenses, the Report felt `it is only natural that this should give rise to feelings of obligation which have the potential to influence the Member's conduct in the House'. In addition, 27 MPs were found to have paid consultancies with trade unions. However the Nolan Committee's broad conclusion was that outside employment of MPs or external financial support for MPs and their activities was defensible in bringing expertise from the non political world into the legislature. While observing that the majority of those writing to express their views thought that MPs should, as in some counties, have no outside interests, it felt that while those MPs who wished to be full-time MPs should be free to do so, they nonetheless thought that a Parliament consisting only of full-time legislators would be less well informed--and hence more reliant on lobbyists.
The Committee Report maintained a distinction between paid advice (acceptable) and paid advocacy (not acceptable). It also concluded that `good sense' was no longer sufficient and that political consultancies should no longer be condoned: `It reduces the authority of Parliament if MPs sell their services to firms engaged in lobbying on behalf of clients. This should be banned.' However, the Committee stopped short of suggesting a ban on financial links with outside interests where the service provided is advice about parliamentary developments and procedures rather than advocacy. One significant argument swaying its decision seems to have been practicality: `It would involve asking three-fifths of the Member of the House and their clients or sponsors to amend with immediate effect arrangements which have been made perfectly lawfully and are of long standing.' This seems one of its weaker arguments: it comes close to saying that it would not seek to remedy a deficiency because it is widespread. While not seeking to ban consultancies (on advice), it nevertheless indicated great suspicion. The Report suggested that Members might individually wish to consider whether the beneficiaries of such consultancies may have unwittingly put themselves under an obligation to advocate specific causes in parliament in a manner contrary to the spirit, if not necessarily the letter, of the 1947 Resolution. The public opinion evidence cited in the Report showed that the public would be more restrictive of financial freedom of MPs than the Committee itself: 95% thought that it was wrong for a Member to ask a question in parliament for money--but 85% also thought that payment for advice about parliamentary events was wrong.
Despite the record of weak self-supervision in this area, the Report nonetheless discounted calls for statutory controls and enforcement by the courts and concluded: `We believe that the House of Commons should continue to be responsible for enforcing its own rules, but that better arrangements are needed.' In June 1995 the House set up a Select Committee on Standards in Public Life to consider the recommendations. Among the changes that came from this was the replacing of the Committee on Members' Interests by the new Select Committee on Standards and Privileges. As recommended, a Parliamentary Commissioner for Standards was appointed in 1995. The Commissioner maintains the Register of Members' Interests. Being appointed by the House of Commons, it can be argued that the Commissioner is an example of self regulation, but undoubtedly the new office-holder is perceived by some within the House as an intrusion into the world of MPs and an undermining of self-regulation. Contracts between MPs and other organisations must be notified to the Commissioner: the scale of payment received must be indicated.
The work of the Select Committee on Members' Interests had developed incrementally. The Nolan Committee pushed this further. From 1994 the Register of Members' Interests required MPs to list the clients of lobbying firms as well as the lobbying firms with which they had a direct relationship. It had discovered that some Members registered (properly by the conventions then current) 26 agreements with lobbying firms and 142 with other business associations. The Report recommended that paid work as general, multi-client parliamentary consultants should be banned. `It also wanted to amend what it called `disclosure in appearance but not in practice', meaning that a registered interest along the lines of `consultancy' might obscure the real nature of the relationship. In fact the Committee may have been pursuing a matter that had already been resolved: the APPC Register (see below) already listed the clients of the lobbying firms. By November 1997 the press, picking up the latest Register of Members' Interests, was reporting that in the post-Nolan mood the number of MPs accepting paid directorships had fallen by 66% (actually also a reflection of election results). At the same time there were reports that commercial lobbyists were targeting the House of Lords as a pool of `advisers' where peers could still ask questions. The Sunday Times also recorded in November that directors of private companies are asking questions in their field of work-a `practice banned in the Commons'. It quoted a lobbyist view of peers that `they are cheaper and are better in Europe, where people are still impressed with their titles'.
The Nolan Committee recognised that in other political systems full disclosure of MPs' assets and incomes is required, but did not find a compelling case for Britain following suit. The Report did advise that remuneration in connection with registrable contracts should be declared in income bands. This was adopted by the House on 6 November 1995. It also noted in an effective, if again oblique, way that there seemed to be cases where Members with a (declared) financial interest had been attracted to serve on Standing Committees. This would lead to an undesirable conflict of interest and the Committee recommended a `presumption against appointing Members with a financial interest'.
The Committee suggested a distinction between advocacy and advice --though this is perhaps a demarcation lost on a public that would prefer there to be no legitimate paid connection between business and the Commons benches. The Report concluded that `an immediate ban would be impracticable' but, as noted, the House has accepted the Standards in Public Life Committee's recommendation to implement a prohibition. The so called Advocacy Rule was adopted on 6 November 1995. The Guide to the Rules Relating to the Conduct of Members states: `This Resolution prohibits paid advocacy. It is wholly incompatible with the advocacy rule that any Members should take payment for speaking in the House. Nor may a Member, for payment, vote, ask a Parliamentary Question, table a Motion, introduce a Bill or table or move an Amendment to a Motion or Bill or urge colleagues or Ministers to do so.' In the eyes of the public this might be weakened by the next proposition: `This Resolution does not prevent a Member from holding a remunerated outside interest as a director, consultant or adviser, or in any other capacity, whether or not such interests are related to membership of the House.' The restriction on paid advocacy refers to past and future benefits and not simply currently registrable activities. As recommended in the Nolan Report, on 11 July 1995 the House agreed to abolish the exemption given to declaring an interest in relation to written notices. So declaration is now required for questions (written, oral or Private Notice), Early Day Motions, Amendments or names added to them, a Notice of Motion for a `Ten Minute Rule Bill', presentation of a bill, any other motions or amendments or amendments to bills (or co-signing thereof). The House resolved on 6 November 1995: `A Member with a paid interest should not initiate or participate in, including attendance, a delegation where the problem affects only the body from which he has a paid interest.' More generally, a Code of Conduct prompted by a Report draft was accepted by the Commons. Prepared in connection with the Resolution of 19 July 1995, it stated:
Members have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents ... Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest ... Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public's trust and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally, into disrepute. The acceptance by a Member of a bribe to influence his or her conduct as a Member, including any fee, compensation or reward in connection with the promotion of, or opposition to any Bill, Motion, or other matter submitted, or intended to be submitted to the House, or to any Committee of the House, is contrary to the law of Parliament. Members shall fulfil conscientiously the requirements of the House in respect of the registration of interests in the Register of Members' Interests and shall always draw attention to any relevant interest in any proceeding of the House or its Committees, or in any communications with Ministers, Government Departments or Executive Agencies. In any activities with, or on behalf of, an organisation with which a Member has a financial relationship ... he or she must always bear in mind the need to be open and frank with Ministers, Members and officials. No Member shall act as a paid advocate in any proceeding of the House ...
A Resolution Relating to the Conduct of Members, which amended the 1947 `Brown' Resolution, was agreed on 6 November 1995:
That this House declares that it is inconsistent with the dignity of the House, with the duty of a Member to his constituents, and with the maintenance of the privilege of freedom of speech, for any member of this House to enter into any contractual agreement with an outside body, controlling or limiting the Member's complete independence and freedom of action in Parliament or stipulating that he shall act in any way as the representative of such outside body in regard to any matters to be transacted in Parliament; the duty of Member being to his constituency and to the country as a whole, rather than to any particular section thereof, and that in particular no Member of the House shall, in consideration of any remuneration, fee, payment, reward or benefit in kind, direct or indirect, which the Member or any member of his or her family has received is receiving or expects to receive, (I) advocate or initiate any cause or matter on behalf of any outside body or individual, or (ii) urge any other Member of ether House of Parliament, including Ministers, to do so, by means of any speech, Question, Motion, introduction of a Bill or Amendment to a Motion or a Bill.
Taken together, the Code of Conduct of July 1995 and the Resolution of November 1995 seem watertight, unambiguous statements of what is and is not acceptable. But that conclusion is undermined by the fact that the words are rather similar to other formulations, pre-Nolan, that did not serve to prevent misdemeanour or, more importantly, did not give a clear sense when misdemeanours took place. That is not to say that the current formulations will not be more effective than those in the past, but to argue that the greater efficacy will stem less from the wording of the prohibitions than from the facts that Members are now well aware of the consequences of exposure; there has been a massive intake of new MPs whose attitudes are shaped by the Nolan climate; the House is now dominated by Labour MPs who, having wanted to attach a sleaze label to Conservatives, must now distance themselves from similar behaviour.
Regulating the commercial lobbyists
In the field of regulation there are commonly two views by those it is proposed to regulate. There are those such as professional engineers in the UK in the 1980s who, when faced with the recommendations of the Finniston Committee in 1980 for statutory controls, see regulation--at least by the government--as an invasion of their rights.(7) This is the view dominant in the traditional professions. Dawn Oliver has expressed the argument in relation to the House of Commons: `Self-regulation can be a more effective device for controlling activity than externally imposed regulation ... A self-regulating body derives status, respect and self-respect from the fact it is trusted to regulate itself....'(8) There are, however, other, generally less established, interests where regulation is seen as a desirable way to maintain or instil professional standards (or, when viewed less charitably, is seen as a way to keep a 'closed shop'). Within Parliament, some of the dissent against the Nolan prescriptions was of the former type, coming from MPs concerned that the undermining of self-regulation was an assault on the dignity of the House of Common. Ironically, these events have seen MPs reluctant to accept the erosion of self-regulation but that has not been the attitude in the lobbying industry where regulation has been seen, in the latter mode, as a means to raise the reputation of the regulated.
The main reason for lobbying companies to seek regulation is the `bad apple' fear-the fear of being harmed by the activities of `rogues' who discredit them all. As quoted in the Daily Telegraph by Ian Waller in 1985, Douglas Smith, then Chairman of the Public Relations Consultants Association (PRCA) argued: `Large fees are being charged, based on false promises, and when the clients' funds or hopes are exhausted, the cowboy consultants move on to fresh prey. They bring Parliament and public relations into disrepute.' In his book The Right to Be Heard Ian Greer argued for action to be taken swiftly `to legitimise and regularise the activities of the lobbyist at Westminster', as otherwise `the suspicion and mistrust which is being built-up by the unskilled operators will do irreparable damage'. In evidence to the Select Committee in 1988, the PRCA reported the views of 24 lobbyists: 70% wanted a Register administered by Parliament and, failing that, 80% wanted a voluntary Register. By the time it gave evidence to the Nolan Committee, the Association had approximately 150 members, of whom about 40% offered parliamentary or public affairs services.
The Association of Professional Political Consultants (APPC) represents the specialist lobbying firms, including Ian Greer Associates. In 1997 there were 15 companies in membership (representing over 70% of the market by turnover). The APPC is actively seeking regulation by government rather than self-regulation. Its Secretary, Charles Miller, argued to the Nolan Committee that: `What also concerned us at the time was that a self-regulatory body like ours has no ultimate sanction. we cannot require people to be regulated; we are a voluntary body and we felt that despite the circumstances that led to the establishment of this Committee, government is still held in far higher esteem than we are as individual companies.' There are three reasons short of undiluted altruism that can explain this interest in regulation from within the industry. One is that that companies see advantage to themselves in not being tarnished with disreputable practices. (Miller noted: `If Government demands that driving instructors and employment agencies should be registered, not to mention Parliamentary Agents, why should the public not be protected effectively from unscrupulous lobbyists?'(9)) However, there is no doubt also a recognition that a statutory register may act as a badge of respectability which will attract clients from nonregistered firms. Miller argued that registration should not simply be about recording and identifying who is active (as in Australia and the US) but should reveal qualifications and enforce a code of good practice. Finally, the lobbyists wanted to distinguish themselves from the PR industry which, they felt, was not treated so seriously by policy-makers as specialist lobbyists. A fourth very British reason for the creation of the APPC was that it was `encouraged' by the Select Committee on Members' Interests in the early 1990s. Its register was a `back door' way of producing regulation. The APPC development is a reflection of the concern about the industry that pre-dated the cash-for-questions scandal which saw the creation of `Nolan'.
The Association of Professional Political Consultants also has a Code of Conduct (established in 1994) that expressly states that members of the Association shall not: `save for entertainment and token business mementoes, offer, give or cause a client to give any financial incentive or other incentives to a representative (i.e. Peer or elected Member) or employee of Parliament ... nor place themselves in a position of potential conflict by appointing any MP, MEP or sitting Peer to their main or any subsidiary or associated board or by paying any retainer or commission to an MP, MEP, sitting Peer or person acting on their account or directly or through third parties, by making any payment to a UK political party.' In his evidence, Charles Miller pointed out that at the time of the development of the APPC three of the 17 firms that seemed eligible to join-i.e, whose business was restricted to the institutions of government-had a financial connection with MPs. One gave this up (with four MPs) to join the association; another did so later. In fact, the Code of Conduct is a better defence against `wrong doers' than the register. (The Code, of course, applies to those who register--not likely to be the problem organisations.) The register comes out twice a year but even that means that it could fail to capture certain relationships-at the time when it would be useful to have them highlighted. The Code of Conduct requires disclosure of relationships at the time of the lobbying. The register has had two unintended consequences. It has provided those registered with the badge of respectability: as lobbying has become a more questionable activity respectability has become more important than in 1994 when the register first appeared. By the mid-1990s calls for tender often specify that the lobbying company seeking work must be registered. The register is also used as a way to look for possible conflicts of interest: a company looking for a lobbying firm is likely to use it to keep clear of someone working for competitors.
The Public Relations Consultants Association seeks to supervise the behaviour of `professional Parliamentary Advisers within membership of the PRCA' through a Code and register (also established in 1994). (The PRCA represents corporate bodies while the Institute of Public Relations organises individuals; both work together in this area.) The register establishes: `Full name and business address; whether company is public or private; name of any parent company; names of associated or subsidiary companies and the names of all directors; the names of all clients identifying: those clients to whom a lobbying service has been provided; where the client is not the ultimate beneficiary of any service, the name of such beneficiary; the name of any Member of Parliament with a pecuniary interest in, or receiving pecuniary benefit from, the company or partnership (not being a shareholding purchased in the normal way).' The Code of Conduct spells out that members should: `Neither offer, nor give, nor cause a client or an associate to offer or give, any inducement to any Member of Parliament, or any other person holding public office, or any public servant ... (except that a director, executive or retained consultant of any firm in question shall be entitled to receive proper remuneration).'
The Association of Professional Political Consultants bans financial links with MPs whereas the Public Relations Committee Association states that these must be recorded-though the scale of the financial link is not recorded. The latter's Code says that member firms should `Neither offer, nor give, nor cause a client or associate to offer or give, any inducement to any Member of Parliament' but an important qualification concedes that a person holding public office may as a `director, executive or retained consultant of any firm in question shall be entitled to receive proper remuneration.'
The Nolan Committee, as recorded above, took greatest exception to the link between Members and multi client lobbying firms. It noted: `There is one area where we have no doubt that immediate action can and should be taken. Whatever arguments there may be in favour of Members who are retained as consultants by outside organisations acting as principals in their own right, we can see no justification for consultancy agreements between Members and public relations or lobbying firms which are themselves acting as advisers and advocates for a constantly changing range of miscellaneous and often undisclosed interests.' However, the controversial lobbying links are not simply between commercial lobbying consultancies of the APPC nor possibly broader PRCA type, but between MPs and other single-purpose organisations such as the Countryside Movement. In her evidence to the Committee, Leigh Mendelsohn of the PRCA referred to the `thousands of in-house Parliamentary Affairs directors and managers. Every walk of life has got these people in-house as well as employing their own independent consultants and going to lobby firms.' This highlights the practical issue of exactly who is registrable?
The Nolan Report's conclusion on the registration of lobbyists was to reject the weight of evidence that sought it. It argued: `Mention has been made in evidence to us of a proposal for a Register of Lobbyists. We are not attracted by this idea ... Our approach to the problem of lobbying is therefore based on the better regulation of what happens in Parliament. To establish a public register of lobbyists would create the danger of giving the impression, which would no doubt be fostered by lobbyists themselves, that the only way to approach successfully Members or Ministers was by making use of a registered lobbyist. This would set up an undesirable hurdle, real or imagined, in the way of access. We commend the efforts of lobbyists to develop their own codes of practice, but we reject the concept of giving them formal status through a statutory register.'
The Report's comments on the regulation of lobbyists are surprising given the concern on the topic in the 1980s and the support for some regulation within the lobbying community. Moreover, they are remarkably brief and marginal to the thrust of the report. The Committee simply did not engage with the sort of practical issues on who exactly should be regulated and registered. Were law firms part of the same exercise as commercial consultancies? Were the activities of in-house lobbyists different from those of public relations companies? Did all possible lobbyists have to pre-register? The Report's focus on the activities of MPs has distracted attention from the work of lobbyists and halted what appeared to be an inevitable tide leading to statutory regulation. It may well be that the Committee's apparent lack of interest in that topic will look questionable as the lobbying industry has reported no decrease in clients or influence with the coming to office of the new Labour government. The focus on MPs has also distracted attention from the links to Whitehall that may in fact be more significant than the activities of backbench Members.
(1) In G. Jordan, The Commercial Lobbyists (Aberdeen University Press, 1991).
(2) The topic of MP behaviour was looked at in M. Hollingsworth, MPs for Hire (Bloomsbury, 1991).
(3) Nolan Report, p. 20.
(4) Barbara Castle, Diaries, 1974-76 (Weidenfeld and Nicolson, 1980), p. 97, indicates that a compulsory register rather than a voluntary was the real goal of those pushing for this change.
(5) The spirit was expressed in a memorandum to the Privileges Committee by the then Clerk to the House: `The House has never attempted to deal comprehensively with the potential conflicts of the interest that can arise between the business and professional interests of Members touch upon their duties and responsibilities as Members ... the House has preferred instead to deal with particular instances of conflict pragmatically when difficulties arise ...' (cited in Nolan Report).
(6) See comment by Adam Raphael to the Nolan Committee on libel risk in writing in this area.
(7) See G. Jordan, Engineers and Professional Self-Regulation (Clarendon Press, 1992).
(8) D. Oliver, `Regulating the Conduct of MPs', Political Studies, 1997, p. 539. Oliver notes that the House of Commons Committee for Standards and Privileges is (as with all committees in the House) selected along party lines with a pro-governmental majority. This might indeed create expectations that the work of the Committee reflects partisan considerations. When the Committee in November 1997 failed to agree on how to deal with Nell Hamilton's appeal, it was two Conservative Members who were particularly concerned at the procedures and their impact on the former Conservative MP's `defence'. Though the Members in question were notably independent minded and their argument has strong merits, it did rather appear to reflect a `soft on our side' attitude. Indeed, a Conservative Whip, David Willetts, was at an earlier stage found to have appeared to encourage the chairman of the Select Committee on Members' Interests consider `exploiting good Tory majority' on the matter. Strictly speaking his intervention related to getting the matter investigated quickly rather than the outcome, but this fine print point carried little public weight.
(9) In Jordan, Commercial Lobbyists, p. 171.
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|Date:||Oct 1, 1998|
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