Government lobbying must be out in the open
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24 June 2013
Following a three-year battle the Information Tribunal has ordered the Government to disclose previously secret records of industry lobbying by the Confederation of British Industry (CBI). The tribunal's decision sets an important marker for the way that requests for lobbying materials should be treated in the future.
In July 2005 Friends of the Earth wrote to the Department of Trade and Industry (DTI) asking for records of lobbying meetings between the CBI and various parts of the DTI that had taken place in the three months since the general election. The information included records of monthly meetings between Secretary of State for Trade and Industry Alan Johnson and then Director General of the CBI, Digby Jones, as well as the notes of a private away-day of senior CBI and DTI officials.
The DTI refused to release the information, but Friends of the Earth's complaint under the Freedom of Information Act 2000 (FOI Act) was upheld, and the DTI - by then rebranded as the Department for Business, Enterprise and Regulatory Reform (BERR) - was ordered to release most of the information requested. The BERR then appealed to the Information Tribunal to overturn that decision.
In the intervening period, and ironically considering Friends of the Earth's concerns about the 'revolving door' between lobbyists and government, Jones had moved from the CBI to become Lord Jones, Minister for Trade, in the very department by then appealing to keep records of his previous meetings secret.
Both the BERR and the CBI claimed that, if the records of the lobbying meetings were disclosed, it could prevent such meetings happening in future, which could damage the Government's policy-making. Deputy director general of the CBI John Cridland told the tribunal: "I hope we aren't going to reach the point where people need to meet by the lake in St James's Park with a rolled-up copy of the Financial Times under their arm in dark glasses, because that wouldn't be a satisfactory replacement for frank, involved discussions." However, the tribunal also heard countervailing evidence from a number of other industry lobbyists who appeared as witnesses for Friends of the Earth. They made clear their own understanding that in a post-FOI Act world, their working assumption was that information about their lobbying was, in principle, susceptible to disclosure and that transparency was the price of privileged access. The tribunal found that "the approach of Friends of the Earth's witnesses is more in keeping with the changed climate resulting from the coming into force of the FOI Act". It expressed concern that the CBI and other lobbying groups "seem to have given little or no thought to the consequences of the FOI Act on their dealings with government and continued, in effect, to operate on the basis of outmoded assumptions".
The tribunal recognised that a "safe space" for the Government to "think" in private was important for policy-making. But it rejected the attempt to extend that safe space to interactions with bodies such as the CBI, saying: "It is not possible to distinguish between their influencing and advisory roles when its officials are meeting with government and it would be naive to take any other view. If lobbyists do have genuine advisory roles, then the adoption of a regulatory system, such as that in the US in relation to third-party contacts, might enable us to take a different view."
Lobbying is a normal and sometimes valuable part of politics. However, while it is conducted in the shadows and to the exclusion of the electorate it represents a threat to our democratic institutions. As the tribunal recognised, the price of privileged access is transparency.