It looks as if the UK is set for the same painful debate that we have had in the EU recently over what to do about government lobbyists, and in particular the lawyer lobbyists among them. Maybe something can be learned from the EU experience.
The coalition government announced at its formation that there was going to be a statutory register for lobbyists. There was disappointment when nothing was included in the Queen’s speech, but 104 MPs have signed an early day motion calling for a statutory register.
The latest news came when the deputy prime minister, Nick Clegg, announced during his Hansard Society annual lecture last November that a third bill on political and constitutional reform, to be introduced in 2011, will establish a statutory register of lobbyists.
The Law Society has responded by setting up a working group to look at the issues involved.
Statutory register, working group – this is all so familiar! The basic issues are easy enough to understand.
On the one hand, governments more and more think it is in the public interest that information about who is lobbying them, and how much is being spent on their activities, should be put in the open for all to see. On the other, lawyers are subject to professional rules of client secrecy.
The two are not easy to reconcile, a classic case of two fundamental rights that conflict. We have been lucky that the European Commission did not propose a mandatory register – not yet, anyway – and so we could continue the negotiations without lawyers breaching any law.
At EU level, the commission announced a green paper on the topic in 2006, and set up its voluntary register a couple of years later.
When we at the CCBE submit our responses to commission consultations, we now have to give our registration number. The CCBE registered rather early, but we have different issues to those of lawyers. For lawyers, the argument has dragged on, and has been resolved by two recent developments.
The first was that the commission got together with the European parliament to develop a common institutional lobbying register. They have just announced their draft agreement, which will now be submitted to the institutions concerned for approval. The parliament side was headed by Diana Wallis MEP, an English solicitor who is obviously aware of lawyers’ arguments (although she is a strong proponent of transparency, too, and wants a mandatory register).
The exclusion for lawyers’ activities is rather wider than those previously up for public discussion. It is worth reciting in full. The following activities are exempt from registration:
'Activities concerning the provision of legal and other professional advice, in so far as they relate to the exercise of the fundamental right to a fair trial of a client, including the right of defence in administrative proceedings, such as carried out by lawyers or by any other professionals involved therein.
In particular, the following do not fall within the scope of the register (irrespective of the actual parties involved): advisory work and contacts with public bodies in order to better inform a client about a general legal situation, his or her specific legal situation, or whether or not a particular legal or administrative step is appropriate or admissible under the law as it stands; advice given to a client to help him or her ensure that his or her activities comply with the law; representation in the context of a conciliation or mediation procedure aiming to prevent a dispute being brought before a judicial or administrative body.
This approach applies to all business sectors in the European Union and is not restricted to certain specific procedures (competition).
Insofar as an individual company and its advisers are involved in a specific legal or administrative case or proceeding in which they are party, any activity directly related to this case, not aiming as such at changing the existing legal background, does not fall within the scope of the register.'
The second development was the joint agreement by the Belgian Bars – both the French/German-speaking and Flemish-speaking organisations – on the line to take with lobbying registration.
This is important because most European lawyer lobbyists are likely to be based in Brussels and so subject to the rules of one of the Brussels bars. This is what they have announced:
'The Belgian bars are of the opinion that lawyers may practise lobbying and register in the transparency register of the European Commission. Provided s/he obtains the explicit agreement of the client, the lawyer is entitled to communicate the name of the client and the financial information required by the European Commission, i.e. the total fees generated by lobbying and the part of the fees which relate to such client.'
The combination of these two has enabled the CCBE to live with the position proposed for lawyers in the new joint register, even if the different players, for instance the CCBE and the national bars, might have positions not identical to the Belgian one outlined above.
As for lessons learned, apart from the wording currently suggested for exemption from registration, I warn those dealing with the issue on behalf of lawyers in the UK that legislators are not very sympathetic to the constant repetition of the need for professional secrecy.
They cannot understand why lawyers should not be treated like everyone else when doing the same work. We had to undergo some bad publicity in order to keep putting the case about lawyers’ ethical rules. But it seems in our case as if it was worth it in the end.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents around a million European lawyers through its member bars and law societies
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