Section 2: Meaning of consultant lobbying and Schedule 1: Carrying on the business of consultant lobbying
18.Section 2 defines the activity of “carrying on the business of consultant lobbying”. Schedule 1 provides further detail about the meaning of some terms used in that definition and provides that certain types of activity are excluded from the definition.
19.The main defining characteristics of being a consultant lobbyist are that ‘in the course of a business’ (which requires the person concerned to be engaged in a commercial activity, and so therefore excludes things such as the public duties of elected officials) a person makes communications (either in writing or orally):
personally to a UK Government Minister or Permanent Secretary (including specified equivalent positions),
about government policy, legislation, the award of contracts, grants, licences or similar
about benefits, or the exercise of any other government function such as the exercise of the prerogative,
on behalf of another person, and
in return for payment.
20.A person carries on the business of consultant lobbying (and is therefore required to register) only if the person is VAT-registered. This means, in particular, that businesses with a turnover below the VAT registration threshold will not be required to appear on the register of lobbyists (unless they are voluntarily VAT-registered). It also means that employees of a company or firm will not be required to appear on the register of lobbyists in their own names, because they will not be VAT-registered: their activities as employees will be covered by the VAT registration (if any) of the company or firm.
21.Subsection (5) provides a power for Ministers to make regulations to amend subsection (3) specifically to include communications made personally to a special adviser in the definition of consultant lobbying if and when that is considered necessary.
22.Paragraph 1 of Schedule 1 describes an exception to the definition of "carrying on business of consultant lobbying". It provides that where a person’s business mostly consists of activities other than the lobbying of Governments, and any communication that they make on behalf of someone else to Ministers and Permanent Secretaries of the UK government is incidental to those non-lobbying activities, then they will not be carrying on the business of consultant lobbying and so will not be required to register.
23.Paragraphs 2 and 3 provide for further exceptions which will not come within the scope of "consultant lobbying". These exceptions include persons who act generally as representatives of people of a particular class or description and who make lobbying communications only as an incidental part of their representative function, and officials or employees of governments of other countries or international organisations who make communications on behalf of those bodies.
24.Paragraph 4 clarifies that an individual is not considered to be carrying on the business of consultant lobbying if they are making communications in the course of their employer’s business.
25.Paragraphs 5 and 6 of Schedule 1 make it clear that any kind of payment given to a person for them to engage in lobbying will bring them within the definition of "consultant lobbyist" if the other conditions are engaged, and this includes both direct and indirect payment. Therefore, it will not be possible for lobbyists to avoid the need to register by, for example, structuring their business so as to receive payments from clients via a third party, or to be paid for periods of service rather than for specific communications, or in some non-monetary form. Paragraph 5(2) excludes the salaries or expenses paid to Parliamentarians for the exercise of their Parliamentary duties from the definition of payment, with the result that the usual activities of Parliamentarians are not captured by the definition of consultant lobbying. This provision therefore ensures that, even if Parliamentarians when carrying out their official role were to be regarded as carrying on a business under section 2, and even if they do not benefit from the ‘incidental’ exception in paragraph 1, they would not be required to register as consultant lobbyists.
26.Paragraph 7 of Schedule 1 explains that communications should not be considered ‘in return for payment’ where the person conducting the lobbying on behalf of a particular class or description of persons is not wholly or mainly funded by, and does not receive payments for conducting the lobbying from, the person or persons on whose behalf the lobbying is done. Such communications are therefore excluded from the scope of the definition of consultant lobbying. This could for example cover bodies who lobby on a pro-bono basis or who are funded altruistically to undertake work that seeks to benefit others.
27.Paragraph 9 of Schedule 1 excludes certain types of communication from the scope of consultant lobbying where it is required to be made under a statutory provision or a rule of law.
28.Paragraph 10 provides that where an individual makes a communication in the course of the business of another, then both the individual and that other business/person are treated as making the communication. If the individual in these circumstances happens to be an employee (as opposed to a contractor or partner etc) then the employee is not to be regarded as making the communication on behalf of their employer, but rather only on behalf of their employer’s client.
29.Part 3 of Schedule 1 gives a list of positions which are considered to be equivalent to a permanent secretary for these purposes, so that communicating with them about government policy etc. will, if the other conditions for being a consultant lobbyist are fulfilled, mean that a person must register as a consultant lobbyist.
