Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Baroness Hayter of Kentish Town Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Hardie]

I take the noble Lord’s point. I am not criticising his amendment; I am criticising the Bill. The Bill does not contain any right of appeal. My Amendment 89 introduces such a right for someone who is aggrieved by the registrar’s decision.

Not only does the Bill deprive someone of the right to a livelihood, perhaps, but Clause 12 creates an offence: it is a criminal offence to lobby if you are not on the register. Not only do you deprive someone of their livelihood but you subject them to the possibility of criminal proceedings and a fine. Clearly there ought to be a right of appeal. There is a tribunal in existence so there is no difficulty about that.

I have already referred to Amendment 103, which creates similar offences in relation to the register of lobbying activities, so I will say no more about that.

Amendment 109 relates to Clause 16, which concerns the ability of the registrar to impose civil penalties. The level of the penalty is fixed at £7,500. I have suggested that that should be reduced to £5,000. The civil penalty is an alternative to prosecution and, if you are prosecuted, the maximum summary fine in Scotland is £5,000 so I do not understand why the civil penalty is half as much again. There may be a reason for that; if there is, I would like the Minister to tell me; if there is not, there should be equivalence of penalties.

My final amendment is Amendment 110. It relates to Clause 18, which states:

“The Registrar may not impose a civil penalty on a person in respect of any conduct … at any time after criminal proceedings … have been instituted … and before they have been concluded, or … after the person has been convicted of an offence under this Part”.

My amendment introduces, after the word “convicted” in subsection (1)(b), the words “or acquitted”. Once we get to that stage, the individual has gone through a criminal trial and a court has decided that he or she is not guilty. Unless we include the words “or acquitted”, a court may have acquitted someone but the registrar could still impose a civil penalty of £5,000. Again, that is unjust. That is the reason for that amendment.

[Baroness Hayter of Kentish Town]

My Lords, in supporting Amendments 88 and 90, which stand in the name of my noble friend Lord Campbell-Savours, I will speak in particular to Amendments 107 and 108, which are in my name and that of my noble friend Lady Royall.

The four amendments comprise the framework that would enable the register to be more than just a limp piece of paper. Taken together, they provide that if someone on the register breaches the code of conduct or the Bribery Act, or is found unfit to be registered as a lobbyist—for example, if they have brought Parliament into disrepute—the registrar would have the power either to remove them from the register or to impose an appropriate civil penalty. That is perhaps rather closer to what was suggested earlier by the noble Lord, Lord Hodgson of Astley Abbots, which is what happens under what is now the Financial Conduct Authority’s list of recognised people. So this is an important combination of amendments.

Of course, we agree that someone should have the right of appeal to a tribunal, as with any such threat to the removal of one’s profession and employment. As the noble and learned Lord said, there is already a well established tribunal that deals with appeals from the pensions regulator and other similar bodies.

[Lord Hodgson of Astley Abbotts]

Perhaps I may ask a question about the amendment. Is there some special significance to the word “breached”, as opposed to,

“convicted of an offence under”,

or is that just the drafting of the amendment?

[Baroness Hayter of Kentish Town]

I think that it is to cover breach of the code. The criminal term would not be appropriate for that. If the Government accept the amendments, I would be more than happy to accept any final tweaks, but the wording is designed to cover non-criminal matters such as breaches of the code of conduct.

In recognising and supporting the amendment dealing with an appeal, that is symbolic of our intention that lobbyists, like financial advisers, pension trustees, lawyers or accountants, should aspire to being members of a profession, with all the obligations of maintaining standards.

We know that the vast majority of lobbyists agree with that objective. They want their profession to be valued and acknowledged and therefore want us to ensure that anyone misleading the registrar or breaching the code should have no place on an approved register. We hope that the Government accept the intention behind the amendments and will respond accordingly. If not, we fear that there will be no mechanism other than sanctions for late filing to keep the register of lobbyists to a high standard.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, that seems unlikely, on the face of it, but I am very glad to go away and consult officials to make sure that there is not a lacuna here. I appreciate where the noble and learned Lord is coming from, with a genuine concern on this issue. If one were to accept some of his other amendments, the case for writing into the Bill the appeal to the tribunal would be stronger. If a person were to object, under our scheme, to the registrar’s decision they could advise him or her accordingly and reregister without difficulty. We do not therefore consider that appeals to the tribunal should be necessary in those circumstances.

The Opposition’s proposed amendments, Amendments 101, 105 and 106, appear designed to ensure that the provision of misleading information is captured by the offence outlined in Clause 12 and, as a consequence, by the civil penalty power provided for in Clause 14. I am advised that “incomplete or inaccurate register” also covers the question of “misleading”. I can therefore confirm that the provision of misleading information in any of these instances would be captured by the concept of,

“information which is inaccurate or incomplete in a material particular”,

as provided in subsections (2)(b), (3)(b) and (4)(b) of Clause 12.

The offence outlined in Clause 12 is designed to be applicable in both the civil and criminal systems. We anticipate that the provision of inaccurate or incomplete information due to administrative oversight will be sanctioned by the imposition of a civil penalty. If, however, inaccurate or incomplete information had been provided in an attempt to deliberately mislead, we could expect such non-compliance to be prosecuted in a criminal court.

The Opposition’s Amendment 108 would enable the registrar to impose civil penalties for breaches of the code of conduct. The establishment of sanctions, whether civil or criminal, requires detailed and measured consideration. The Opposition have been able to identify only one of the provisions to be included in the statutory register. I suggest that the provisions with which lobbyists would be required to comply should surely be identified before it was determined whether they should be liable to a civil penalty in the event of a breach.

Amendment 103, tabled by the noble and learned Lord, Lord Hardie, would impose an offence on those who failed to submit lobbying activity reports as and when required. We recognise that this amendment is consequential to his other proposals so I will not address it further. His Amendment 109 would amend Clause 16(3) so that the maximum amount for a penalty notice would be reduced from £7,500 to £5,000. I note that his point of comparison is the Scottish civil penalty. In setting the maximum amount for a penalty notice at £7,500, the Government were mindful of comparable regulatory regimes, such as the fines imposed by the Companies Act in relation to the late filing of accounts, and we took that as our comparator. The Government are confident that the proposed limit of the civil penalty is thus an appropriate one and are not persuaded that it should be reduced, although of course the registrar is able to issue civil penalties of any amount up to £7,500, so not in every case would it be the amount.

The noble and learned Lord’s Amendment 110 would prevent the registrar from issuing a civil penalty to a person if that person had been acquitted of an offence under this part in relation to their conduct. We then get into interesting questions; as a non-lawyer, I am not entirely an expert on the difference between the evidence required to prove a criminal case and that which is required to produce a civil one. Perhaps we might consult on that off the Floor to resolve that very delicate distinction. Having answered some of those extremely interesting and detailed probing amendments, I hope that the noble Lord will feel able to withdraw his amendment.

[Baroness Hayter of Kentish Town]

Before that happens, may I just be assured that I have understood that even if someone is convicted under the Bribery Act in a criminal case, they could still stay on the register?

[Lord Wallace of Saltaire]

The register is not intended to have sanctions on it, but let me take that away and come back. I appreciate that we are in an area here where the question is how much the register is intended to be one which you go on to if you are engaged in this activity, or whether the register should begin to develop a disciplinary dimension, which raises some of the questions that the noble and learned Lord, Lord Hardie, in particular has pursued.