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3. Requirements to register

Who is required to register?

Section 1(1) of the Act states that a person must not carry on the business of consultant lobbying unless they are entered in the Register of Consultant Lobbyists.

Organisations and individuals are considered to be carrying out the business of consultant lobbying if they fulfil the following criteria:

They have made direct oral, written or electronic communications personally to:

a Minister of the Crown, Permanent Secretary (or equivalents) currently in post, referred to as “Government Representatives”

relating to:

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

This 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.

They are registered under the Value Added Tax Act (1994).

What are Government Representatives?

Government Representatives are Ministers of the Crown, Permanent Secretaries (and any equivalents as specified by the Act) of Her Majesty’s Government, in post at the time when an act of consultant lobbying is carried out. Any communications made to Government Representatives prior to accepting this post, or made after they have left their post, will not trigger the need for registration.
Equivalent positions are listed as follows:
− 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
− Prime Minister’s Adviser for Europe and Global Issues.

If communications are general and not made on behalf of any client or group of clients, and are made for the purpose of business development, brand enhancement or in the professional interest of the organisation or wider public interest, such communications are not registerable.

When communicating with a Government Representative, the critical issue is whether consultant lobbying activity as defined by the Act is taking place. If the criteria for consultant lobbying are met, it is irrelevant whether the subject of the communication is unrelated to the Minister’s portfolio, if the Minister is appointed to an unrelated department, if the matter is considered to be a party issue or whether the Minister is considered to be acting as a constituency MP – the communication will trigger the requirement to join the Register.
In the event of a reshuffle or reappointment, communications made to a Government Representative will only trigger the requirement to register after they have come in to post as a Minister or Permanent Secretary.

What communications require registration?

Making communications personally means communicating directly with a Government Representative by name or by title, using oral, written or electronic communication. An example would be writing an email to a Minister of the Crown in which the email is addressed to the Minister specifically.

  • Communications made to a government department, special adviser, administrator, a private secretary or a private office, are not made to a Government Representative personally. However communications addressed to a Minister but sent via a private office would have to be registered.
  • Communications sent by a client (whoever drafted them) or a reply sent from a Minister/Permanent Secretary (even if sought via a RSVP), do not need to be registered.
  • If the communication is an invitation, and contains material which meet the criteria of consultant lobbying, then it is registrable. If the invitation contains no such material, it is not registrable.
  • Communication with a Minister only needs to be registered if it relates to matters of Her Majesty’s Government; this does not include matters relating to local government. An example might be writing to a constituency MP about a local planning issue. In the event that a planning issue is ‘called in’ to the level of Secretary of State any communications from this point would need to be registered as they then involve matters of Her Majesty’s Government.
  • In the event that an organisation anticipates at an earlier time that a planning application will be “called in”, it would be sensible for registration to take place at that earlier point (consistent with the approach that registration may be made in advance of any specific lobbying activity being envisioned).
  • It does not matter from where the communication is made: it could be a face-to-face meeting within a government office, at a restaurant, at a party-political conference or made from overseas: if the criteria for consultant lobbying are met, then this will trigger the requirement to join the Register.
  • In the case of electronic communications, emails that are sent directly to a Minister’s address will trigger registration. If using social media where a message directed to a Minister’s (official or personal) account is made which fits the criteria for consultant lobbying, this will require registration. However if an organisation were to refer to a Minister’s account indirectly, such as by mentioning that the Minister is speaking at an event and tagging the Minister’s account, then this would not require registration.
  • At times, it may be the case that a Government Representative initiates communications with an organisation or requests a meeting. If in the course of this exchange, the criteria for consultant lobbying have been met, then the organisation is required to join the Register, regardless of whether they initiated the communications.
  • Direct communications can be planned or unplanned – a chance encounter with a Minister would be registerable if all the other criteria are fulfilled.

Communicating on behalf of multiple clients

It may be that a consultant lobbyist makes a communication on a single issue on behalf of multiple clients. In the case that the consultant lobbyist was being paid by all clients for this communication, they would have to register each client’s name in their quarterly update, no matter how many clients were involved to ensure transparency.

When is a communication considered to be made?

A communication is considered to be made in the moment that it is sent to a Government Representative. It does not matter if for some reason the recipient does not receive the communication. If the criteria for consultant lobbying are met, then the organisation making the communication should have joined the Register.

What constitutes payment?

Lobbying “in the course of a business” requires that an individual or organisation is engaged in lobbying as a commercial activity and in return for payment.

Payment can be in any form and can be made directly or indirectly, meaning a consultant lobbyist cannot avoid registration by receiving payments via a third party. Payment could be made for a specific communication or a retainer that includes a number of communications. It does not matter whether the person or persons making the payment is, or are, the person or organisation on behalf of whom the communications are made.

Lobbying which is conducted without payment, for example as pro-bono, is not required to be registered.
If an employee is on annual or unpaid leave and / or is seconded to / working for a Minister/client, and under direction of that Minister or client (and NOT the lobbyist’s employer) this activity is not registrable.

In the case of indirect payments, it is the nature of the relationship and expectation of the client, which are important.

The fact that direct communications are not listed as a line item on a contract or an invoice would not preclude the requirement to register, if the client’s expectation was that direct communications with a Government Representative would take place.