For most City lawyers, lobbying is a dirty word synonymous with ex-Parliamentarians currying favour with ministers on behalf of dodgy Russian oligarchs.
This stereotype is unfortunate, and if it continues it will create a whole host of missed opportunities for UK lawyers.
The UK Government is moving towards a range of new practices that will open up Parliament and policy making to the public and, therefore, enable lawyers to influence legislation on behalf of their clients.
Tony Blair has recently made a lot of noise about ‘open government’ and has also launched the ‘Big Conversation’, promising to give the public more of a say in policy making.
At the moment, lobbying in the UK is done by public affairs agencies staffed by former politicians, civil servants and the like, who have ‘contacts’, precisely because our legislative process, at least compared with the US, is too closed for the public and many businesses to really know what is going on.
Contrast Westminster with Washington, where lawyers lobby Congress on new legislation on behalf of clients at every stage of the policy making process.
The two capitals are fundamentally different as the US has the 1966 Freedom of Information Act, which gives lawyers access to thousands of documents detailing policy change at the earliest stage. And while we don’t always applaud when Tony Blair decides to ape his good friend Dubya, the legal sector should be pleased that UK Government is moving towards the Washington model of more open policy making, which is an excellent opportunity for forward-thinking lawyers.
A beefed up UK-style Freedom of Information Act, to be implemented next January, should open up the policy making process to big business by granting us all the statutory right to see Government documents. The Department of Trade and Industry (DTI), long maligned for not listening to business, has also swung into line. At the time of writing, the DTI had 15 public consultations listed on its website.
If open government is more than just a PR stunt, lawyers and the rest of the public will have much greater access to documents detailing potential policy change and will be able to lobby ministers and civil servants on behalf of their clients at an early stage.
“Tony Blair recently said he wants to reach out to interested parties before he starts proposing things, and that’s music to our ears,” says John Rupp, London managing partner of Covington & Burling, a firm with one of the strongest lobbying practices in Washington.
Rupp knows what he is saying when he opines that Westminster is becoming more like Capitol Hill. And there are signs that law firms are beginning to wake up to this fact.
Imitating the ‘revolving door’ practice in Washington, where law firms hire elder statesmen of Congress who were once private practice lawyers as highly-paid partners and consultants, UK law firms are starting to hire from the regulators.
Freshfields Bruckhaus Deringer has taken on former Office of Fair Trading supremo Margaret Bloom as a consultant on competition matters.
Herbert Smith has just hired FSA enforcement head Martyn Hopper as a partner in its litigation department.
Covington has recently hired a former DTI civil servant as a consultant and extended the US referral relationship it has with powerful Washington public affairs group Kissinger McLarty Associates to London.
Freshfields has recently been doing some lobbying of its own, taking advantage of what it sees as the DTI’s new willingness to listen by writing to 300 of its clients and urging them to ask the Government for amendments to section 310 of the Companies Act (1985), which prohibits directors from limiting their liability and securing indemnity from their companies.
In 2000, DLA set up a public affairs bolt-on, similar in nature to our domestic lobbying agencies and run by House of Lords Liberal Democrat health spokesperson Sir Tim Clement Jones. With this the firm is in prime position to take advantage of new opportunities for its lawyers to lobby the Government of behalf of clients. DLA Upstream is now considered a serious competitor by the main lobby firms, and DLA is importing Upstream’s approach into its core business.
But there are two factors that cloud the crystal ball when it comes to predicting that lobbying will be the next big thing for UK law firms.
First, is Blair telling the truth about his willingness listen to business? Digby Jones, director of the CBI, recently announced that the business vote was “up for grabs”. There is a chance that all the noises Labour is making to bring big business and its lawyers into the policy arena is just a continuing ploy to woo your clients away from the Conservatives.
And even if some lawyers seem poised to set up credible lobbying practices, will they ever do it? Either through a knowledge of the lobbying scandals of the 1990s or because UK law firms do not have party political affiliations, City lawyers just do not like the idea of being seen to be involved in government.
Freshfields insists that its recent lobbying effort was a one-off, apolitical exercise and that it has no intention of creating a new lobbying department. Even Covington’s London partners tend to balk when it is suggested they are a lobbying outfit, which causes them to protest that they are not in the business of asking politicians for favours.
The chances are that City firms will move into this arena, but clients will be told about their new practices on a need-to-know basis, in carefully-worded terms. Perhaps something along the lines of: “It has come to our attention that this policy that affects you is going to be changed, would you like us to have a discreet look at it for you?”
For now, “no, we don’t lobby”, is still the response of most. But it’s not stopping them quietly building up their capabilities in this area.