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2. Offences

Who is liable?

Part 1, section 12 of the Act states that:

(1) If a person carries on the business of consultant lobbying in breach of section 1(1) (lobbying whilst unregistered), an offence is committed by:

(a) the person; and

(b) any individual who, not being entered in the Register, engages in lobbying in the course of that business.

It is my interpretation that if conducting the business of consultant lobbying whilst not being on the Register, then the organisation and certain individuals involved in that organisation will ordinarily be liable for the offence under section one of the Act. This would include:

  • In the case of a company, the Directors and Shadow Directors;
  • In the case of a partnership, the Partners;
  • In the case of an individual (sole trader), that Individual.

By way of further clarification, paragraph 4 of Schedule 1 to the Act states:

An individual does not carry on the business of consultant lobbying by reason of making communications as an employee in the course of a business carried on by the individual’s employer

It is therefore my interpretation that an individual employee will not ordinarily be liable for an offence under the Act if they make communications in the course of an employer’s business: it is the employer (i.e. Director or Partner(s)) who would be liable on their behalf. This could include:

  • Staff who directly communicate with Ministers in meetings in the course of an employer’s business;
  • Staff who send communications to Ministers in the course of an employer’s business.

In the unusual event that an employee acts outside an employer’s business, the employer could still be liable. I would consider the facts on a case by case basis.

Register entry

Part 1, section 12 (2) of the Act states that:
It is an offence for a registered person to engage in lobbying if:

(a) The person’s entry in the Register is inaccurate or incomplete in a material particular; and

(b) The person has failed, when required to submit an information return under section 5, to provide sufficient information in or accompanying the return, to enable the inaccuracy or omission to be rectified.

I consider material particulars to be the information required by the Act to be submitted by consultant lobbyists when joining the Register.

Quarterly Information Returns

Part 1, section 12 of the Act states that:

(3) Where a person is required to submit an information return under section 5, it is an offence for the person

(a) to fail to do so within the period specified in section 5(6); or

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

I consider material particulars to be the names of clients that have been lobbied on behalf of in a way described by the Act.

In respect of my approach to determining the severity of offences regarding Register entries and/or quarterly information returns, I will have regard to my previously stated approach to categorisation of administrative errors or non-compliance. I will consider the extent to which an organisation has engaged with my Office and the steps it has taken to rectify the error in determining whether there is an instance of non-compliance (i.e. whether there has been sufficient due diligence).

Update of information

Part 1, section 5 of the Act specifies that organisations should make updates to their company information (e.g. directorship and address) when making information updates. However, in response to requests from stakeholders, the technical solution was designed to allow registrants to complete information returns and update their information anytime within a quarter. I encourage registrants to use this facility to ensure that their information always remains correct and up to date.

In accordance with Part 1, section 5(6) of the Act, information returns must be submitted two weeks after a relevant quarter. Whilst I would encourage registrants to correct their information at the earliest possible opportunity, there is no provision for me to require them to do so, until the due submission date.

Correction of Information

I have been contacted by organisations that wish to know more about correcting information on the Register and whether there would be repercussions for highlighting mistakes they have made. In particular this question focused on clients which have mistakenly been declared and/or mistakenly believed to have been lobbied on behalf of.

In the interests of transparency it is imperative that the Register holds complete and accurate information and I want to encourage registrants to contact the Office at the earliest opportunity to report information they have found to be inaccurate. It makes no difference if the inaccuracy was historic: either it was not material (in which case, no offence) or there was due diligence (in which case, there is a potential defence, in the event of a material inaccuracy).

I intend to consult in due course about the length of time information should be retained in the Register. For the present, however, my view on correction of information applies to all information currently in the Register.

It is my intention to signpost corrections on the Register for the sake of transparency. I am currently considering the most appropriate method to do this.

Nil returns

I have said in previous guidance that registrants who have not made any communications that would meet the criteria of consultant lobbying within a quarter, should submit a nil return. I envisage that it will continue to be acceptable to submit nil returns, in circumstances where it is envisaged that consultant lobbying may potentially take place within a reasonable timescale. If however, nil returns are submitted for three consecutive quarters, my Office will engage with the registrant to establish whether continued registration is appropriate, and I reserve the right to issue an information notice, if I consider that to be necessary.