LOBBYING IN THE UNITED KINGDOM

Authors: John Cooper and Kieran Laird (Gowling WLG)

Constitution: The United Kingdom does not have a codified constitution. Rather, its constitutional arrangements are comprised in a set of statutes, judicial decisions, EU and international laws, principles and customary practices. These arrangements create the institutions of the state and regulate their interaction, both with each other and between themselves and citizens.

The UK does not have a constitutional court with an inalienable right to strike down laws that are unconstitutional. The UK Parliament is therefore unconstrained and can enact or repeal any law, which may then be amended by a future Parliament. This concept of parliamentary sovereignty lends a certain fluidity to the UK’s constitutional arrangements, which can - and do - continue to develop over time as new legislation is enacted. Although the courts can set aside laws passed by Parliament that conflict with EU law, this is only because Parliament has previously legislated that this should be the case, and (subject to any transitional arrangements) that position will change following the UK’s exit from the EU.

The power to regulate lobbying is constrained by the laws and conventions that are currently in force, with the proviso that any constraint can be removed by Parliament if it so chooses. At present the law protects freedom of speech and assembly, and provides a right to petition Parliament.

Legislative system: Legislative power formally resides in the Crown in Parliament. Bills are passed in the name of the Sovereign acting on the advice of Parliament. In practical terms, bills are passed by Parliament and sent to the Sovereign for his or her assent, though this assent is now a mere formality.

The UK has a bicameral Parliament comprised of a directly elected lower chamber (the House of Commons) and an upper chamber made up of a mix of hereditary and appointed members (the House of Lords). Legislation is passed where it secures the assent of both chambers, although there are some constraints in both law and custom as to the circumstances in which the House of Lords can block legislation.

The executive is drawn from, and accountable to, Parliament. After each parliamentary election the Sovereign will invite the leader of the political party that has won the most seats in the House of Commons to become Prime Minister and to form a government. The Prime Minister will then appoint Members of Parliament to a cabinet, which acts as the executive. Decisions made at cabinet level, and cabinet committee level, are usually binding on all members of the executive.

Although legislative power resides with Parliament, it may legislate to delegate lawmaking power to the executive. This delegated power must be exercised within the limits specified by Parliament in the enabling statute and will often be subject to some form of parliamentary scrutiny.

National subdivisions: During the 1990s, the UK Parliament devolved certain legislative powers to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Each of these legislatures is directly elected, and their legislative competence is set out in statute. There are some differences between them as to the scope of their legislative competence. However, in broad terms each of the devolved legislatures may legislate for the part of the UK for which it is responsible in the following areas:

• health and social care;
• education and training;
• local government;
• housing;
• transport;
• agriculture, forestry and fisheries;
• the environment and planning;
• tourism, sport and heritage; and
• economic development.

Some of the devolved legislatures also have competence in additional areas. Over time, there has been a tendency for more legislative power to be devolved, and this may continue in the future.

The UK Parliament retains the authority to legislate on any issue, whether devolved or not. However, by convention, it will not normally legislate with regard to devolved matters except with the agreement of the relevant devolved legislature.

Some decision-making and rule-making power has also been delegated to directly elected local councils at city, county or district level throughout the United Kingdom. Within the parameters set at the national and devolved level, local councils have the power to set local policy in matters such as policing, passenger transport, education, social services and planning. However, they have very limited revenue-raising powers that are independent of central government.

Some regions of England have combined authorities made up of constituent local councils that are empowered by legislation to take collective decisions across council boundaries. Each combined authority has a bespoke package of additional powers and resources devolved to it by government under the relevant legislation. Some combined authorities are chaired by a directly elected ‘metro mayor’ to whom particular powers can be devolved on a personal level, rather than to the combined authority itself. Examples of these powers include transport, housing and planning, education and skills, and health and social care.

Consultation process: There is no requirement for the UK Parliament or the devolved administrations to undertake formal public consultation as part of the legislative process. However, where Parliament has delegated lawmaking powers to the executive, it sometimes requires consultation to be undertaken before those powers are exercised.

In advance of introducing an important or controversial bill to Parliament, the executive will sometimes issue a Green Paper to seek feedback on policy or legislative proposals, or a White Paper setting out proposals in a more developed form.

Once a bill has been introduced to Parliament, it will normally be considered by one or more committees. Such committees will often undertake consultation through general calls for written evidence and invitations to specific persons to present oral evidence.

Less formally, and subject to the restrictions set out below, an interested party may approach a member of the executive, another Member of Parliament or a senior member of the Civil Service to discuss proposed legislation and suggest amendments. However, the decision on any amendment lies with Parliament.

Judiciary: Along with the executive and the legislature, the UK judiciary is one of the three branches of state. There is an explicit statutory duty on the executive to uphold the independence of the judiciary and ministers are specifically barred from trying to influence judicial decisions through any special access to judges.

An independent Judicial Appointments Commission has effective responsibility for selecting judges, although formally the Commission makes recommendations to the Lord Chancellor (a member of the executive).

An independent Judicial Appointments and Conduct Ombudsman is responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of complaints about judicial conduct.

Although independent, the judiciary is not coequal with Parliament. The power to make laws resides primarily with Parliament. The judiciary interprets and applies the laws that Parliament enacts but also has a lawmaking function through the common law. Parliament can, with some possible constitutional exceptions, legislate to override the common law. However, the only circumstance in which the UK courts can set aside an Act of Parliament is on the basis that it does not comply with EU law, a power unlikely to survive the UK’s departure from the European Union.

The courts can, however, disapply delegated legislation made by the executive or a public authority where it offends certain principles of UK public law - for example, it is beyond the lawmaking power granted in the enabling statute or has been made for a purpose outside of, or contradictory to, the purpose intended by Parliament.

General: In broad terms, direct lobbying of government or senior officials undertaken by third parties for payment (consultant lobbying) is regulated under the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (the 2014 Act) under which a Registrar of Consultant Lobbyists (the Registrar) is appointed to supervise and enforce certain registration and reporting requirements described below. The Registrar may give guidance about how he or she proposes to exercise his or her functions.

It is an offence to carry on the business of consultant lobbying if an individual or organisation is unregistered, or to fail to submit an accurate quarterly return. It is also an offence if an entry in the register is incomplete or inaccurate, although there is some leeway with regard to administrative errors.

Commission of an offence may result in a fine imposed by either a court or the Registrar. The maximum fine that may be imposed by the Registrar is £7,500.

For lobbyists who fall outside the narrow statutory regime, three professional bodies - the Chartered Institute of Public Relations (CIPR), the Public Relations Consultants Association (PRCA) and the Association of Professional Political Consultants (APPC) - operate separate voluntary registers of lobbying activity. Each of the voluntary bodies prescribes standards that its members must follow and investigates allegations of breaches.

Definition of Lobbying: Under the 2014 Act, consultant lobbying is defined as communicating directly (whether orally or in writing ):

• with government ministers or certain senior civil servants;
• on behalf of another person; and
• for payment (directly or indirectly).

The CIPR, PRCA and APPC adopt a broader definition of lobbying for the purposes of their registers, which cover activities carried out in the course of a business for the purpose of influencing the government or advising others how to influence the government.

Registration and other disclosure: Under the 2014 Act, consultant lobbyists are required to be listed on the register of consultant lobbyists before making any relevant communications. Registration is achieved by application to the Registrar with details of:

• the company, partnership or individual undertaking the lobbying;
• the VAT registration number; and
• any relevant code of conduct with which the consultant lobbyist must comply.

The intention behind the Act is to enhance the transparency of those seeking to lobby government ministers and senior officials on behalf of a third party.

Lobbyists who are not caught by the requirements of the 2014 Act may voluntarily apply to be listed on the CIPR, PRCA or APPC registers. This involves submission of an online form to the relevant organisation with similar information to that required for the 2014 Act register.

In addition, the Code of Conduct for Members of Parliament requires members to register details of family members engaged in lobbying the public sector.

Activities subject to disclosure or registration: To be caught by the 2014 Act, communications may be written or oral, and must relate to:

• the development, adoption or modification of any government proposal to make or amend primary or subordinate legislation;
• the development, adoption or modification of any other government policy;
• the government making, giving, issuing, or taking other steps in relation to any contract or other agreement, grant or other financial assistance, or licence or other authorisation; or
• the exercise of any other government function.

Communications must be made ‘personally’. This means that where a person assists in the drafting of communications that are then sent by another party, or assists in the development of lines to take for a meeting which that person does not attend, then he or she will not be caught by the 2014 Act.

Communications must be made to:

• a minister of the Crown (the holder of an office in the government); or
• a permanent secretary (the most senior grade of the Civil Service) or a person of equivalent status. Equivalent roles include second permanent secretary, Cabinet Secretary, Chief Executive of Her Majesty’s Revenue and Customs, Chief Medical Officer, Director of Public Prosecutions, First Parliamentary Counsel, Government Chief Scientific Adviser, Head of the Civil Service or the Prime Minister’s Adviser for Europe and Global Issues.

Communications to other persons, such as Members of Parliament who are not ministers, are not caught.

It does not matter whether the person making or receiving the communication is outside the UK when it is made (although see below for persons not registered for value added tax in the UK), or that the communication is irrelevant to the recipient’s job or portfolio.

Entities and persons subject to lobbying rules: The 2014 Act requires an individual or organisation carrying on the business of consultant lobbying to be entered in the register, unless they fall within one of the following exceptions:

• individuals and organisations not registered for VAT in the United Kingdom;
• persons lobbying on behalf of their own organisation;
• persons not conducting lobbying for payment;
• individuals undertaking consultant lobbying in the course of their employer’s business (only the employer is required to be registered);
• officials or employees of, or the government of, countries other than the United Kingdom, or of an organisation falling within as defined by section 1 of the International Organisations Act 1968 (such as the United Nations);
• individuals and organisations that carry on a business that is mainly non-lobbying and only make relevant communications on behalf of third parties in a way that is incidental to the main course of their business; and
• individuals and organisations that represent a particular class or description of people and whose income is derived wholly or mostly from those people, and where the lobbying is incidental to their general activity.

Lobbyist details: Under the 2014 Act a consultant lobbyist must supply the following information for the register before undertaking consultant lobbying activity.

Status: Information required

Company: Its name, its registered number and the address of its registered office. The name of its directors and of any secretary and any shadow directors

Partnership: The names of all the partners and the address of its main office or place of business (this can be the address from which lobbying is conducted).

Individual: The individual’s name and the address of the individual’s main place of business (or, if there is no such place, the individual’s residence).

All: VAT registration number. Any name or names, not included under paragraphs above, under which the person carries on business as a consultant lobbyist. Any other information regarding the identity of the person as may be determined by the Registrar. Details of any relevant code of conduct with which the consultant lobbyist must comply in relation to lobbying activities.

Responsibility for applying to be entered in the register of consultant lobbyists lies with the individual or organisation carrying on the business of consultant lobbying.

Similar details are required for the CIPR, PRCA and APPC voluntary registers.

Content of reports: Under the 2014 Act, a consultant lobbyist must submit quarterly information returns to the Registrar giving the names of persons on whose behalf consultant lobbying has been undertaken - or from whom payment for lobbying has been received - as well as updates to any information given at registration.

No information is required on the subject of any lobbying undertaken or the amount of payment received.

Where no such lobbying has taken place, or payment received, a statement to this effect is required.

Persons on the voluntary registers may also supply details of clients for whom lobbying is undertaking.

Financing of the registration scheme: The registration system under the 2014 Act is funded through a mix of public funding, fees for registration and an annual fee to remain on the register.

The cost of the CIPR, PRCA and APPC registers are met through the membership fees of the relevant organisation.

Public access to lobbying registers and reports: The register under the 2014 Act and the CIPR, PRCA and APPC registers are published online and searchable by the general public at no cost.

Code of conduct: Lobbyists are not under a legal obligation to subscribe to a specific code of practice.

Certain professional codes of practice - such as that for solicitors - may govern lobbying activities and the 2014 Act requires any such code to be listed in a person’s entry on the register.

The CIPR, PRCA and APPC each specify codes of conduct by which their members must abide.

Media: Under the Communications Act 2003 (the 2003 Act), television and radio services (broadcast media) must not carry advertisements, with the exception of party political broadcasts, which are:

• by or on behalf of a body whose objects are wholly or mainly political in nature;
• directed towards a political end (such as influencing elections, referendums, changes in law or policy, or public opinion on matters of public controversy); or
• in connection with an industrial dispute.

The 2003 Act also regulates some video-on-demand services.

Ofcom is responsible for enforcing the prohibition on political advertising in broadcast media.

There is no restriction on material that concerns political issues in non-broadcast media, such as posters or newspapers.

There is no specific regulation of political advertising on the internet apart from spending rules around elections and referendums .

General: Political parties in the United Kingdom are mainly funded through membership fees, donations and loans.

Public funding may also be available in the form of policy development grants or payments towards the administration costs of opposition parties in Parliament.

In practice, public funding is modest and party membership has declined significantly over the past few decades. Therefore, the main political parties in the UK have come to rely increasingly on donations.

Individual politicians may be funded by donations and loans, but public funding is not available.

Registration of interests: There are no requirements for political parties to register or declare their interests at an organisation level.

Under the Code of Conduct for Members of Parliament, individual members of the House of Commons are required to register their financial interests. Subject to some minimum financial thresholds, members must declare any relevant interest in any proceeding of the House or its committees, and in any communications with ministers, members, public officials or public office holders. Interests fall within the following categories:

• employment and earnings;
• donations and other support for activities as a Member of Parliament;
• gifts, benefits and hospitality from UK sources;
• visits outside the United Kingdom;
• gifts and benefits from sources outside the United Kingdom;
• land and property;
• shareholdings;
• any other financial interest or material benefit that might reasonably be thought by others to influence the member’s acts or words;
• employed family members; and
• family members engaged in lobbying.

In addition, the Ministerial Code requires government ministers to disclose their interests for publication. This includes constituency interests, personal interests and connections and private interests whether financial or otherwise.

The Code of Conduct for Members of the House of Lords requires members to register all relevant interests - financial or otherwise - that might reasonably be thought to influence their parliamentary actions, and to declare any relevant interest when speaking in the House or communicating with ministers or public servants.

Contributions to political parties and officials: Under the Political Parties, Elections and Referendums Act 2000 (PPERA), the Electoral Commission regulates donations and membership fees in relation to registered political parties, members associations (groups of party members) and holders of relevant elected offices.

The Electoral Commission has the power to investigate potential breaches of the rules and to take action where any breach has occurred. Such action includes the imposition of fines or requirements to take or desist from specified action. The Commission may also pass on details of a breach to the police or prosecuting authorities where it believes the breach has a significant impact on confidence in the transparency and integrity of party, and election finance.

Sources of funding for political campaigns: Political parties are not permitted to use any public funding for campaigning purposes. Campaigns are funded through donations and loans.

The PPERA regulates donations and loans to registered political parties, their members, members of the House of Commons and other elected officials. It requires that donations and loans over £500 are accepted only from ‘permissible donors’ - individuals on the UK electoral register or UK registered organisations - and are reported to the Electoral Commission for publication. Northern Ireland political parties may also accept donations from individuals and organisations in the Republic of Ireland.

The definition of a donation includes not only money but also goods or services provided without charge or on non-commercial terms. It should also be noted that the Electoral Commission considers hospitality to fall within the definition of a donation.

Lobbyist participation in fundraising and electioneering: There are no special fundraising restrictions or requirements related to registered lobbyists.

Independent expenditure and coordination:  The PPERA governs regulated campaign activity not aimed at a specific candidate in an election. This includes campaigning for or against political parties or categories of candidates, or policies or issues closely associated with a particular party or category of candidates. The types of activity caught include production or publication of material (including online), canvassing or market research, media events, transport with a view to obtaining publicity and particular public events.

For UK parliamentary general elections the rules usually apply within a regulated period beginning 12 months before polling day.

Any third party can spend up to £9,750 per constituency on regulated campaign activity within the regulated period. Those who wish to spend more than £20,000 in England, or £10,000 in Scotland, Wales or Northern Ireland, must register with the Electoral Commission. Once registered, a third-party campaigner must comply with rules on donations, spending and reporting. However, in general, only individuals on the UK electoral register or organisations registered in the United Kingdom can register with the Commission. Those that cannot register may not spend more than the applicable spending limits.

Third-party campaigning for or against one or more candidates in a particular ward or constituency is regulated under the Representation of the People Act 1983 (RPA), which imposes spending limits on activities such as leaflets, advertisements, meetings and websites. For parliamentary general elections the limit is £700 and applies from the date that Parliament is dissolved. Local campaigning is not regulated by the Electoral Commission and breaches of the RPA are handled by the police.

Gifts, travel and hospitality: The Ministerial Code requires that no minister should accept gifts, hospitality or services that would, or might appear to, place the minister under an obligation. Gifts valued over £140 become the property of the government and do not need to be registered. However, all hospitality received in a ministerial capacity should be registered. Gifts given to ministers in their capacity as constituency MPs or members of a political party fall under the separate rules discussed below.

Under their Code of Conduct, members of the House of Commons must register gifts, benefits or hospitality from any source with a value of over £300. They must also register multiple benefits from the same source if these have a value of more than £300 in a calendar year. The same threshold for reporting applies to the cost of overseas travel that is funded by a third party.

Under the Code of Conduct for Members of the House of Lords, members must register any gift to the member or their spouse or partner, or any other material benefit, with a value of over £140, from any source inside or outside the United Kingdom, which relates substantially to membership of the House. Under the Code, members should decline all but the most insignificant or incidental hospitality, benefit or gift offered by a lobbyist. Members must also register costs of overseas travel in excess of £500 that are funded by a third party.

Anti-bribery laws: The Bribery Act 2010 makes it an offence for a person to offer or pay a bribe, or to receive or agree to receive a bribe, either directly or indirectly. It applies to transactions that take place in the United Kingdom and abroad, and to both the private and public sector.

It is also an offence to bribe a foreign official, and for a commercial organisation incorporated or carrying on business in the United Kingdom to fail to prevent a person associated with it committing bribery with the intent to obtain or retain business for the organisation or an advantage in the conduct of its business. It is, however, a defence for the organisation to prove that it had in place adequate procedures designed to prevent such conduct.

In addition, the Honours (Prevention of Abuses) Act 1925 legislates to prevent the granting of honours in return for private gain.

Revolving door: The Business Appointment Rules (BAR) prohibit ministers from lobbying government for two years on leaving office. The BAR also place a similar preclusion on senior civil servants and special advisers of equivalent standing. However, these restrictions may be modified by the Advisory Committee on Business Appointments (ACOBA) in an individual case.

More generally, the BAR require (former) public servants to seek advice from ACOBA - or, for junior civil servants, their former department - on the suitability of any new paid or unpaid appointment to be taken up within two years of leaving ministerial office or Crown service.

ACOBA (or the department) can recommend that an individual waits for up to two years before taking up an appointment, or restrict the types of activities that the former public servant may undertake (eg, using information to which the individual may have had access while in office). It can also advise that it considers a particular appointment ‘unsuitable’, but cannot prevent appointments being taken up.

Compliance with the BAR forms part of the ministerial codes for the UK, Scottish and Welsh executives, and is also part of the terms and conditions of appointment for civil servants and special advisers in those jurisdictions. However, the BAR have no statutory basis and there is no sanction for non-compliance.

Apart from security vetting procedures where necessary, there are generally no restrictions on private-sector professionals being seconded to public bodies.

Prohibitions on lobbying: The Codes of Conduct for Members of Parliament and the House of Lords prohibit members from taking payment in return for advocating for a particular matter in Parliament. Furthermore, the Civil Service Code requires political impartiality.

Under the BAR, ministers, senior civil servants and special advisers of equivalent standing should not lobby government for two years after leaving office or the Civil Service. However, these restrictions can be modified by ACOBA upon application and there is no sanction for non-compliance.

Recent cases: These issues arose in the case of Cruddas v Calvert [2015] EWCA Civ 171. This was an action alleging libel and malicious falsehood, brought by a former treasurer of the Conservative Party (Mr Cruddas), against two journalists who had posed undercover as international financiers. The journalists had published articles about discussions with Mr Cruddas regarding making large donations to the Conservative Party (which was in government at the time) in return for political influence.

In summarising the law and practice governing donations to political parties, the court stated as follows:

[A]s a matter of realpolitik it is acceptable, indeed inevitable, that donors will have access on social occasions to senior members of the party which they support. . . . What is not acceptable on such occasions is that (a) the politicians should reveal confidential information; (b) the views expressed by donors on policy issues should carry greater weight with politicians merely because the proponents are donors; (c) politicians should give any form of unfair commercial advantage or preference to donors during or after those social occasions.

The court found that Mr Cruddas had effectively stated that significant donors to the Conservative Party would have an opportunity to influence government policy and to gain unfair commercial advantage through confidential meetings with the Prime Minister and other senior ministers. Although Mr Cruddas had not suggested any form of criminal offence under the PPERA, ‘nevertheless, what he proposed was unacceptable, inappropriate and wrong’.

Remedies and sanctions:

In 2016, three companies were fined £300 each for undertaking consultant lobbying without paying the annual fee to stay on the statutory register.

The PPERA

The Electoral Commission seeks to work with those that it regulates to secure adherence to the relevant legislation and will often take informal action before resorting to its statutory enforcement powers. However, following the 2015 parliamentary general election, Greenpeace and Friends of the Earth were fined £30,000 and £1,000 respectively for spending in excess of their controlled expenditure thresholds under the PPERA without having first registered with the Commission. In July 2018, Best For Britain, a third-party campaigner, was given two fines by the Electoral Commission totalling £1,250 for failing to return an impermissible donation and failing to deliver an accurate spending return for the 2017 general election.

The Bribery Act 2010

In February 2016, the Sweett Group PLC was ordered to pay £2.25 million for failing to prevent an act of bribery to secure a contract in the United Arab Emirates.

In January 2017, Rolls-Royce entered into a deferred prosecution agreement with the Serious Fraud Office (SFO) under which it will pay £497,252,645 plus interest over a period of up to five years, plus a payment in respect of the SFO’s costs, in return for the suspension of prosecution of a number of offences, including the making of corrupt payments (under a pre-2010 Act bribery law) and failure by a commercial organisation to prevent bribery under the 2010 Act. The prosecution related to claims regarding payments to intermediaries to secure a number of high-value export contracts in various overseas markets.

The Code of Conduct for Members of Parliament

In July 2018, members of the House of Commons voted to suspend Ian Paisley Jr for breaching the Code by failing to declare a personal benefit and hospitality in the form of family holidays to Sri Lanka in 2013 paid for by the Sri Lankan government, and for breaching the rule against paid advocacy by writing to the Prime Minister following those holidays to lobby against a UN resolution in relation to alleged human rights abuses by Sri Lanka.

Updates and trends: The UK’s vote to exit from the European Union has seen a spike in lobbying activity, with domestic and international organisations seeking to ensure that their opinions are reflected both in terms of the UK’s future trade deal with the European Union and in any subsequent overhaul of the UK’s domestic regulatory regimes. The devolved governments of Wales and Scotland are alive to this with Scotland passing its own Act, which came into force in March 2018, to regulate lobbying, and the Welsh government stating that it will continue to