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3. Information notices

Section 9 of the Act states that in connection with the duty to monitor compliance, the Registrar may serve an information notice requiring the recipient to provide specified information. Information notices can be served on:

(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.

Registrants

The Registrar is able to serve information notices on any registered person. In instances of inaccuracies of registered information, or the submission of potentially inaccurate client information, the Office would usually seek to engage with a registrant to resolve any issues. Potential examples of where information notices might be served include (but are not restricted to) where:

  • A registrant refuses to engage with the Office on matters of inaccuracy or inconsistency;
  • During the course of engagement, the registrant provides incomplete or misleading information to the Office;
  • A registrant substantially increases or decreases the volume of clients they declare without sufficient explanation, inconsistent with their past business practice;
  • There is whistle-blowing from a reputable source.

Non-registrants

The Registrar is able to serve information notices on any organisation or person not on the Register who she believes to be conducting the business of consultant lobbying. Whilst the following criteria alone do not prove that an organisation is conducting the business of consultant lobbying, they are considered grounds for further investigation into the lobbying activities of an organisation, provided that relevant exemptions do not apply:

  • Appearance in Ministerial diary return;
  • Appearance on APPC or other relevant trade body membership list;
  • Presence of a public affairs or public engagement team;
  • Description of business activities is similar or identical to that of existing registrants;
  • The appearance of activity (such as award entries, blogs, case studies, interviews or other promotional material) that appear to indicate relevant consultant lobbying;
  • Whistle-blowing from a reputable source.

Content of information notices

Part 1, section 9(4) of the Act states that 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.

When sending an information notice, it would be my intention to specify under what section of the Act the information notice is being served, and for what purpose the information will be used. An example of an information notice is included in Annex A.

There is no limit to the number of information notices that may be issued or the type/extent of information required, though my intention would be to use the tests of proportionality and the public interest, in my general approach to the use of such notices, recognising the additional administrative burden response to such notices might involve.

Limitations to information notices

Part 1, section 10(1) of the Act states that 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): the relevant offences are listed below; and

(b) the disclosure would expose the person to proceedings for that offence.

These offences are:

(a) an offence under [Part 1 of the 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 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations etc).

Regulations implemented by the Cabinet Office also introduced the following limitations on information that can be supplied by information notice:

(a) any communication between a professional legal adviser and the adviser’s client in connection with the giving of legal advice to the client about the client’s obligations, liabilities or rights; or

(b) any communication between a professional legal adviser and the adviser’s client, or between such an adviser, the adviser’s client and any other person, in connection with or in contemplation of proceedings (including proceedings before the Tribunal and for the purposes of such proceedings).

These regulations recognise that some documents attract legal professional privilege.

Information notice offences

Part 1 section 12(3) of the Act states that:

Where an information notice has been served on a person, it is an offence for the person:

(a) to fail to supply the required information on or before the date by which the person is required to do so; or

(b) to provide information which is inaccurate or incomplete in a material particular.

In the context of the Act I consider examples of incomplete or inaccurate responses to an information return to be:

  • Information that has been fabricated;
  • Information that is incorrect (for example by providing communications between March-May when an organisation was asked to provide information from February-April); and
  • Information which fails to address all requests made in an information return.

The fact of issuance of an information notice by the Registrar, indicates my expectation that the recipient should treat the provision of the required information with appropriate due diligence.