The prime minister recently announced plans for a statutory register of lobbyists, with a bill to be published by the end of July. I don’t know whether the bill will include lawyers within its definition of lobbyists. I guess so, although I don’t want anything I say to be taken as an encouragement to the government to do so. As I wrote earlier this year, we have experience in Europe – yes, just imagine – of the problems faced when lawyers are included in such a register. So, on the basis that parliamentary draftsmen are keen readers of this blog, here is some advice.
Respect professional secrecy. There is a fine line to be drawn between transparency, which is clearly a good thing, and another outstanding benefit, the professional secrecy between lawyer and client. As with so many events in life, this involves a balance between two virtues, and it is difficult to respect the one without making inroads into the other. We have already seen with the money laundering legislation how an obsession with one can wreck the other. Don’t make the same mistake here. And don’t be surprised if lawyers defend the virtue which society has given them to protect.
Don’t listen only to transparency lobbyists. The call for transparency, particularly after embarrassing scandals, will be loud and seemingly irresistible. The public can easily see that side of the argument. But democratic society is built on balances, of which professional secrecy is a complex example. It is easier to put the argument that lawyers are deliberately trying to avoid registering to line their wallets (which is more or less what the European transparency lobbyists say about lawyers, loudly and frequently) than to accept the nuanced necessity of professional secrecy. Please avoid populism.
Don’t seek too comprehensive a solution in relation to obedience to codes. Lawyers already have a code of conduct, which they are required to obey at risk of being expelled from the profession. A lobbying code is likely to be more general, not as strictly enforced, and with lower standards. Is there any point in making lawyers subject to a variety of different, overlapping codes?
Establish proper procedures. Lawyers (and others) will presumably be required to register. The corollary is that, if they do not respect the conditions for registration, they will be removed from the register. Who decides on removal, and subject to what procedure? Is there a quick, independent and reasonable process of appeal after the removal decision? Will the same body act as judge and jury throughout the appeals process? We are still arguing with the European institutions about this, because they failed to think about it when first setting up their register.
Sanctions by public bodies against lawyers raise serious issues. Clearly, it depends on the structure and ownership of the register, but as an example of the problems, here is part of the policy paper my own organisation, the Council of Bars and Law Societies of Europe (CCBE), drafted on the matter: ‘The fact that such a [registration] body can impose disciplinary sanctions on a lawyer is inconsistent with the principle of professional self-regulation, and of independence of the members of the legal profession towards public authorities. This principle is based on the consideration that lawyers may oppose such authorities to defend clients who are in a dispute with them, and that one could not conceive, in a democratic society, that lawyers may suffer any pressure from public authorities against which they may have to act or even that there could be the slightest suspicion that any such pressure could be exerted.’
Define lobbying clearly and not too broadly. Normally it will involve influencing the formulation or implementation of policy or the decision-making process. But be careful about including indirect lobbying (at least without the tightest of definitions), because it could catch traditional lawyers’ activities such as seeking information from a decision-maker in order to advise a client on future legislation.
Good luck to the parliamentary draftsman who has drawn this particular short straw, and to the government minister who has to shepherd the legislation to completion. You will have the transparency lobbyists shouting at you in one ear, and we lawyers (who, I stress, are also in favour of transparency, but equally in favour of the balances necessary for the rule of law) yelling in the other.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs