What do you need to know about the Lobbying (Scotland) Act?

Alex Bruce 04
By Alex Bruce @alexandersbruce

What do organisations who engage with the Scottish Parliament need to do to prepare themselves for newly adopted legislation on lobbying? Orbit Communications Director Alex Bruce explains the background and main elements of this new legislation and why organisations of all types should make themselves aware of their new responsibilities under the Act.

Lobbying:

“…in a professional capacity, attempting to influence, or advising those who wish to influence, the UK Government, Parliament, the devolved legislatures or administrations, regional or local government or other public bodies on any matter within their competence.”

UK Public Affairs Council (UKPAC)

The term lobbying has taken on increasingly pejorative connotations in recent years in the wake of a series of high profile lobbying scandals involving in particular Members of the UK Parliament.

Against the backdrop of apparent growing public concern over a lack of transparency around lobbying activities, Labour MSP Neil Findlay originally lodged his own proposal for a Member’s Bill to introduce a lobbying register in 2012. However, this was superseded the following year by a Scottish Government announcement of its intention to introduce legislation of its own on lobbying. A Parliamentary inquiry and Scottish Government consultation followed this announcement, culminating in the introduction to Parliament of the Lobbying (Scotland) Bill in October 2015.

The Bill received Royal Assent on the 14th April 2016 having been passed at its final stage during March of this year.

The practical effect of this legislation is to introduce a lobbying register for any organisation engaged in what is defined as “regulated lobbying”. This definition includes any paid lobbying, whether carried out by external consultants or in-house members of staff and irrespective of whether the organisation comes from the public, private or third sectors. Included within the scope of “regulated lobbying” are face-to-face meetings with Scottish Government Ministers and MSPs concerning their Government or Parliamentary functions. This can include their role as legislators or decisions on the award of contracts, funding and so on.

It’s also important to note that the legislation extends to any representative of an organisation, irrespective of their role, and not just to those who may be specifically employed to communicate with external stakeholders.

Various forms of communication are exempted from the definition of “regulated lobbying”, including:

  • Communications to an MSP representing a constituency or region where the communicator’s business is ordinarily carried out;
  • Instances where the communication is made on behalf of an organisation with less than 10 full-time equivalent employees;
  • Communications made during a meeting of a recognised cross-party group;
  • Communications made for the purposes of journalism;
  • Communications made as part of Parliamentary proceedings (for instance, giving evidence to a committee);
  • Instances where the information request originates from an MSP or minister;
  • Communications by political parties, the judiciary and by or on behalf of her Majesty the Queen;
  • Government and Parliament communications.

Despite representations in support of their inclusion during the Bill’s passage through the Scottish Parliament, senior civil servants, government agency officials and special advisers are excluded from the scope of the legislation as are other forms of lobbying than face-to-face meetings such as telephone calls, emails, letters and video conferences.

Crucially, it is the responsibility of the organisation rather than the individual engaged in lobbying activity to enter their details onto the lobbying register. Entering and updating the register will be free of charge but failure to comply with certain aspects of the legislation will lead to criminal sanctions.

Responsibility for establishing and maintaining the new register will lie with the Clerk of the Scottish Parliament. Anyone engaged in regulated lobbying will initially be required to enter their details in the lobbying register. Those not currently engaging in regulated lobbying but who anticipate doing so in the future can enter their details voluntarily onto the register. There is also a 30 day grace period for organisations or individuals to register themselves following the first instance of regulated lobbying.

Once registered, lobbyists are expected to submit six monthly returns outlining any regulated lobbying activity undertaken and including, in each instance, the following information:

  • Who was lobbied, when and where;
  • A description of the circumstances in which the lobbying took place (a meeting, Parliamentary reception or other event…);
  • Who undertook the lobbying;
  • Whether this was undertaken on the registrant’s own behalf or on behalf of someone else and, if so, who;
  • The purpose of the lobbying.

Failure to register or to submit returns when required to do so or the submission of false or inaccurate information are defined as criminal offences under the Act, punishable by a fine of up to £1,000.

The legislation also establishes a complaints process with investigation and reporting responsibilities being conferred to the Commissioner for Ethical Standards in Public Life in Scotland. It also requires the Scottish Parliament to publish a Code of Conduct for persons lobbying Members of the Scottish Parliament. This is to cover all types of communication to an MSP and not just those defined as “regulated lobbying”.

Having summarised the legislation as clearly and concisely as I can, what does it all practically mean for your organisation?

First, it is important to acknowledge that, throughout the detailed discussions leading up to the adoption of this legislation, the value and importance of lobbying as a legitimate part of the democratic process were consistently emphasised. The intention of the new Act is certainly not to discourage lobbying of the Scottish Parliament but rather to make the process more open and transparent.

Following the elections in May, if your organisation is already in the habit of meeting MSPs face-to-face with a view to influencing policy or simply raising awareness of issues pertaining to your organisation, you will be required in most circumstances to submit your details to the new lobbying register. In future, any such meetings will need to be recorded and submitted as part of your organisation’s six-monthly return to the Clerk of the Scottish Parliament. If you are in any doubt, it is always going to be safer to register your organisation, even if this means that your six-monthly returns will be completely empty. Once published, organisations should also take the time to familiarise themselves with the Scottish Parliament’s new Code of Conduct for lobbyists.

No doubt there will be ongoing arguments about the precise scope of the legislation and how workable or effective it will be in practice. But in so far as it encourages organisations to think more carefully about how they engage with politicians and to operate in as open and transparent a way as possible, it has to be viewed as a positive step.

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