Can ISPs, telcos, and tech companies "lobby"?

This is a slightly unusual one for a blog on which I normally cover solely Internet, tech, and telecoms issues. But there is a link!

A friend asked me a while back whether, if they emailed their MP about an issue of concern for their ISP business, or if they responded to an Ofcom consultation, or spoke with civil servants in a government department, it would constitute "lobbying", and if they needed to do anything about it.

tl;dr: no, they didn't.

Here's the thinking.

Lobbying is not prohibited

As a starting point, in the UK, lobbying is not prohibited. You can lobby, and loads of organisations do.

There is, however, a set of rules governing certain lobbying activities. Again, they do not prohibit someone carrying out those activities, but they do set a regulatory framework, including a registration requirement, with sanctions for non-compliance.

But, for most of you running Internet, telecoms, or tech companies reading this, you are unlikely to fall into those rules.

Being a "consultant lobbyist" is regulated

The rules for regulated lobbying are set out in the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.

Below is a summary of the key points as I see them.

Who is a "consultant lobbyist"?

You are a consultant lobbyist if:

  • in the course of a business and in return for payment

  • you make covered communications (see below)

  • on behalf of another person or persons

  • you are registered under the Value Added Tax Act 1994

  • none of the exceptions apply to you

There are some key things to draw out immediately:

  • you are of out of scope if you are not being paid or are not doing it in the course of a business.

  • if you run a tech company and do some incidental lobbying, in support of your business, you are out of scope.

  • if you are lobbying for yourself / your own interests, you are out of scope, as what you are doing is not "on behalf of another person".

  • you are out of scope, personally, if you make covered communications as an employee in the course of a business carried on by your employer.

In other words, if you respond to an Ofcom, Home Office, or DCMS consultation, or meet with civil servants in those organisations to discuss concerns, or try to help with something, affecting your business, you are out of scope.

Covered communications

The rules apply only to certain activities.

These are oral or written communications which are:

made personally to a Minister of the Crown or permanent secretary

This includes:

  • holders of an office in the government (including the Treasury)
  • permanent secretary or second permanent secretary in the civil service of the State
  • Cabinet Secretary
    • Chief Executive of Her Majesty’s Revenue and Customs
    • Chief Medical Officer
    • Director of Public Prosecutions
    • First Parliamentary Counsel
    • Government Chief Scientific Adviser
    • Head of the Civil Service
    • Prime Minister’s Adviser for Europe and Global Issues

The scope is pretty limited; if you are not engaging with one or more of these people, you are not a consultant lobbyist.

The normal activities I see / support with - responses to consultations, or interactions with civil servants other than those most senior civil servants expressly set out in the law - are out of scope.

But if you are engaging with one or more of the listed people, quite a broad range of communications are caught:

(a) the development, adoption or modification of any proposal of the government to make or amend primary or subordinate legislation; (b) the development, adoption or modification of any other policy of the government; (c) the making, giving or issuing by the government of, or the taking of any other steps by the government in relation to,— (i) any contract or other agreement, (ii) any grant or other financial assistance, or (iii) any licence or other authorisation; or (d) the exercise of any other function of the government.

And if you are a regulated lobbyist?

You need to be entered in the register of consultant lobbyists, or you could face a fine.