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Appendix – Criteria for consultant lobbying
This guidance sets out the main details of the compliance framework of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (‘the Act’).
The principal requirements of the Act are for those engaged in consultant lobbying, as defined in the Act) to register their activity and submit a Quarterly Information Return. The Act also includes:
This guidance should be read alongside the Act and other guidance issued by the Registrar of Consultant Lobbyists. It does not aim to deal with unusual or complex situations and the Office of the Registrar of Consultant Lobbyists (‘the Office of the Registrar’) is happy to provide further information or guidance in specific cases.
This guidance supersedes the Compliance with the Act guidance dated September 2018.
Harry Rich, Registrar
The Registrar has a legal duty to monitor compliance with the provisions of the Act. The Registrar carries out this duty in a proportionate way that encourages and supports compliance by consultant lobbyists and others, so that the Register is accurate and useful.
The obligations of the Act are set out in detail elsewhere, but broadly they are:
The Office of the Registrar relies on consultant lobbyists to register and to provide accurate and timely Quarterly Information Returns. In addition, the Office of the Registrar monitors compliance by:
The following are offences under the Act:
If a person or organisation commits an offence under the Act the Registrar can impose a civil penalty of up to £7500 or refer the matter to the Director of Public Prosecutions for potential criminal prosecution.
Before imposing a civil penalty, the Registrar serves a notice of intention setting out details of the offence and the proposed penalty. The Registrar considers any written representations made by the recipient within the period specified in the notice of intention, and decides whether or not to impose the proposed penalty or to vary it. If proceeding with a penalty, the Registrar serves a penalty notice setting out details of: the offence; the amount of the penalty; the deadline and method for payment; and the right to appeal.
Civil penalty levels:
There is no fixed tariff for the level of penalty for particular offences and the Registrar considers the facts of each case. All breaches of the Act are offences, but the Registrar is likely to consider the following categories, with increasing levels of seriousness:
In setting the level of a penalty the Registrar will also take account of mitigating and aggravating factors, such as:
An individual employee is not usually liable for an offence under the Act if they make communications in the course of an employer’s business. It is the generally the employer who is liable. On the other hand, where an offence is committed by a company or partnership with the consent or connivance of a person in control, that person is also liable for the offence.
It is a defence against charges under the Act to show that the alleged offender exercised all due diligence to avoid committing the offence. Evidence is required to demonstrate this and the defence will not be effective if the contrary is proved beyond reasonable doubt.
Examples of due diligence can include situations where the registrant:
The Registrar has a duty to monitor compliance with the Act and will seek information to enable this from registrants and others in an informal and collaborative way in the first instance.
However, where this is inadequate, the Registrar can issue statutory Information Notices to registrants or to non-registrants who the Registrar has reasonable grounds to believe are engaging in consultant lobbying. It is an offence to fail to supply the required information on time or to provide inaccurate or incomplete information.
Examples of situations where the Registrar might issue an Information Notice to a registrant include:
Examples of matters that might prompt the Registrar to issue an Information Notice to a non-registrant include:
Information Notices set out how and by when the required information should be supplied and the right of appeal against the notice.
The scope of information that the Registrar can require is broad, as long as it supports the Registrar’s duty to monitor compliance with the Act. There is no limit to the number of information notices that may be issued, but the Registrar will always seek to be proportional, balancing legal requirements, the public interest and the administrative burden on recipients.
Recipients of Information Notices must disclose information even if that demonstrates a breach of the Act. However, with a number of specific exceptions, they are not obliged to disclose evidence that would expose them to proceedings for other offences outside the Act.
The usual principles privileging certain communications between professional legal advisers and clients apply.
In order to support compliance and in the interests of transparency the Registrar publishes information about the following on the website of the Office of the Registrar:
Organisations and individuals are considered to be carrying out the business of consultant lobbying if they fulfil these three tests:
|1) They make oral, written or electronic communications personally to a Minister of the Crown or Permanent Secretary (or equivalents specified in the Act), relating to:
a) the development, adoption or modification of any proposal of the government to make or amend primary or subordinate legislation
b) the development, adoption or modification of any other policy of the government
c) the taking of any steps by the government in relation to any contract, agreement, grant, financial assistance, licence or authorisation; or
d) the exercise of any other function of the government.
2) The communication is made in the course of a business and in return for payment on behalf of a client, or payment is received with the expectation that the communication will be made at a later date.
3) They are registered under the Value Added Tax Act 1994.