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The law already exists to tackle lobbying. It just needs fixing

Thursday 15 April 2021

Rather than focusing on private companies representing their own interests, why not make public bodies more transparent and accountable? The Freedom of Information Act could do that job


David Cameron’s past now seems to all be foreshadowing: every step he took in office seems to have been planned to set up some future humiliation. The man whose first priority was the NHS ended up screwing healthcare budgets into the floor. The man who thought his party should stop “banging on about Europe” ended up resigning over Brexit.

And back in 2010, he warned about lobbyists: “We all know how it works. The lunches, the hospitality, the quiet word in your ear, the ex-ministers and ex-advisers for hire, helping big business find the right way to get its way.” Sure enough, the celestial scriptwriters have not turned down this heavy-handed plot line.

Nigel Boardman, a government-friendly lawyer, has been asked to look into Cameron’s work as a lobbyist for Greensill Capital. Ministers want him to draw out the broader lessons and to propose changes to rules on lobbying. A lot of focus has been on the 2014 Lobbying Act, which sought to regulate the industry of consultant lobbyists. If that law is his focus, Boardman is looking in the wrong place. 

The UK’s rules on lobbying presuppose that lobbying is something that a specific cabal of lobbyists do. As a result, it concludes that the best way to approach their work is to gazette this narrowly defined group’s work with registers. 

And, of course, since it is an act that Cameron’s government passed, Cameron, the walking Chekhov’s gun, has been doomed to personally show up its flaws. The former PM is obviously a lobbyist with several clients – but the badly drawn 2014 Act does not catch him in its net. 

The core problem with the Lobbying Act, though, is not that its definition of “lobbyist” is wrong. It is that it is looking in the wrong direction. It is, after all, not the attempts of businesses to influence decisions that are the problem – but government responses. So rather than trying to make a list of an ever-larger range of suspicious people in the private sector, just make sure that interactions with public authorities are accessible. 

This is, furthermore, relatively straightforward: a relevant law exists. The Freedom of Information Act 2000 created an expectation that the government should let you know what it is up to. Any person can simply ask for information and, within 20 days, should be given what they ask for – so long as the information does not fall into some “exempt” category. 

This law is also forward-thinking: unlike some of its sister acts abroad, it has not been caught out by the rise of email or the mobile phone. Officials who do not hand over messages related to government business that have been requested are committing a crime – even the data was WhatsApped on a private mobile phone. 

The Act’s problem is that it is not well enforced. People making requests under the Act are continually stymied by a fairly toothless regulator. The government has gutted the Information Commissioner’s Office, the regulator for the Act. As a result, officials and ministers are quite relaxed about lying to the public and making bad-faith arguments – knowing it will take a while (and, often, a trip to a court) to play out. 

Take Cameron’s text messages to the Chancellor: these have been withheld by the government because, officials say, the government could be sued by Cameron for breach of confidence if they were released. This is ridiculous. The government is pretending to believe that despite announcing a review into lobbying triggered by these messages, a judge would not conclude there was public interest in their disclosure. A sober person could not make this argument honestly.

This is a long-run problem with the FOIA: Whitehall is relaxed about lying to requesters – particularly about meetings with lobbyists. Back in 2013, Cameron’s own government sought to block the release of Andrew Lansley’s diary, precisely to hide the list of people who had engaged with the then health secretary during his reforms of the NHS.

During the tribunal hearings on the case, two senior officials gave evidence in support of the idea that release was not in the public interest. If ministerial diaries were published, they claimed, ministers would stack those diaries with pointless meetings to look busy. This offensively hare-brained argument disintegrated in court.

Unsurprisingly, the two men were criticised by the judge. Their conduct, the judgment said, fell “way below the standards that the public and the [court] are entitled to expect of government departments and senior civil servants”. And what happened to these two officials? 

Nothing. One, Sir Alex Allan, remained the government’s adviser on the ministerial code – the chief internal ethics watchdog – until he resigned last year. Non-compliance with this anti-corruption law is Whitehall’s starting position.

How should Boardman seek to fix this?

First, the Information Commissioner ought to be bulked up – and made independent of ministers. The ICO should be proactively intervening in cases. Anyone reading the Treasury reply on Cameron knows it is acting in bad faith. Why wait? Get stuck in. Timely release is often more important than a comprehensive release.

Second, beef up Section 77 of the Freedom of Information Act – the part of the Act that makes non-compliance a criminal offence. It needs to be easier to prosecute. At the moment, it has a six-month time limit. It needs to be broader, too. Dishonesty and repeated non-compliance ought to be prosecutable. So should poor record-keeping.

Third, the range of sanctions for non-compliance are currently rather unimaginative. Offenders should, of course, face fines. But most potential FOIA offenders are public officials: we could give judges the right to dismiss offenders from their roles and bar them from any civil service, special adviser, ministerial or elected posts for, say, 10 years. 

Obviously, of course, Cameron would be against this. He has said the Freedom of Information Act “furs up” government – a “clutteration” and “buggeration”. He actually set up a commission that was intended to create the political space for paring the law back. 

It would be very fitting if his legacy were a tougher transparency law.

Photograph by Adrian Dennis/Getty Images