Posted on 08/01/2018 by Nick Sharpe
Lobbying is a legitimate and important part of contemporary political and democratic processes.
The system has, however, been accused of being opaque and, in response to this perception, the Scottish Parliament has legislated to make the process more transparent.
The Lobbying (Scotland) Act will come into force on March 12.
The Act introduces a Lobbying Register, which will be a publicly-accessible database of contacts between anyone who speaks with Members of the Scottish Parliament and civil service figures from the Scottish Parliament and Government about their work, unless they are exempt.
Unlike other related registers, it does not only apply to those regarded as lobbyists – anyone could be subject to the Act’s provisions.
An activity which should be registered under the Act must pass four tests. It should:
- Be an oral, face-to-face communication with a regulated person
- Concerning the Scottish Government or Scottish Parliament’s functions
- In which an attempt was made to inform or influence the regulated person on behalf of an organisation in exchange for payment
- Where no relevant exemption applies.
These component parts will now be expanded upon.
An oral, face-to-face communication with a regulated person
Regulated lobbying must take place face to face, which includes video conferencing communications. It must be engaged in orally or using sign language.
The Act does not apply to telephone, letter, email, and social media communications.
The following people are regarded as regulated people by the Act:
- Members of the Scottish Parliament
- Scottish Government Ministers
- Special Advisers
- The Scottish Government’s Permanent Secretary
Regulated lobbying can take place outside Scotland.
Concerning the Scottish Government or Scottish Parliament’s functions
The functions of the Scottish Government and Parliament are defined as the:
“Development, adoption or modification of any proposal related to primary or secondary legislation or to any policy of the Scottish Ministers or other Scottish Administration office-holders; the making, giving or issuing by Scottish Ministers or other Scottish Administration office-holders of contracts, agreements, grants, financial assistance, licences or other authorisations.”
This is a very broad definition, and relates to all powers devolved to the Scottish Parliament and Government. It is necessary, therefore, to make sure that you adopt a safety first approach: if you think you might be doing something that could be considered registrable, register it.
In which an attempt was made to inform or influence the regulated person on behalf of an organisation in exchange for payment
Again, a broad range of activities fall within the Act’s provisions.
The Act applies to both formal and informal circumstances, as well as to planned and impromptu lobbying.
In order for an action to be registrable, the person engaged in the lobbying activity must receive some form of payment for their services.
That means that the context in which a conversation takes place is irrelevant: what matters is the content of the discussion.
Any conversation, whether in the shop, the pub, the office, or the Scottish Parliament, is registered lobbying if you try to inform or influence the regulated person on behalf of an organisation in exchange for payment.
This payment does not need to be specifically in exchange for lobbying. All paid members of staff, regardless of their job, are subject to the Act’s provisions.
Where no relevant exemption applies
Some activities that would otherwise be regarded as registered lobbying are exempted by the Act’s only Schedule. A major exemption applies to those bodies covered by existing freedom of information legislation, such as local authorities and universities.
For those not exempted for that reason, the most relevant exemptions are when a communication is:
- In regard to an issue you are raising on your own behalf (that is, in relation to your own affairs or views)
- With an MSP who represents the constituency or region where you live or where your company/organisation is based or ordinarily operates within (unless this MSP is a member of the Scottish Government or the communication is on behalf of a third party)
- From someone who is unpaid (that is, those who do not receive payment in cash or kind, except for reimbursement for travel, subsistence or other reasonable expenses related to the making of the communication, whether for lobbying or any other job)
- From an organisation with fewer than 10 full-time equivalent employees (unless the communication is on behalf of a third party, or in a representative capacity)
- Made during formal Parliamentary proceedings of the Scottish Parliament (e.g. a meeting of a Parliamentary committee), during a quorate meeting of a Scottish Parliamentary Cross-Party Group, or as communication required by statute or another rule of law
- Is in response to a request from a regulated person seeking factual information or views on a topic (which means that if an MSP or other regulated person invites you to provide factual information or views on a topic, it does not need to registered as lobbying – unless the discussion broadens to include other topics).
Once a piece of regulated lobbying has taken place, the relevant individual or organisation will have 30 days to register the activity by making an entry on the Register’s website.
This entry should include:
- The name and address (which can be a business address) of the lobbyist
- The person lobbied
- The location of the lobbying
- A brief description of the activity and its purpose.
From then on it is possible to make individual entries as and when lobbying activity takes place.
After the first entry is made it will then be necessary to complete an information return every six months, outlining any changes to lobbying activity already registered, any new acts of lobbying (if not already registered), or that no other lobbying activity involving the registrant took place in that six-month period.
It is possible to apply to become an inactive registrant if, after the original six-month period, you will no longer engage in registered lobbying. This results in the registered person no longer having to make ‘nil’ entries on the register, and is a useful way to avoid bureaucracy if your lobbying activity was a one off.
Others who lobby infrequently but will do so again in the future may choose to remain on the register and make nil entries until the engage in registered lobbying again.
The Register website is now live, and test entries can be made. These will all be wiped when the Act comes into force on March 12.
The enforcement of the Act has real teeth, with available disposals ranging from Parliamentary reprimands to fines and imprisonment.
Providing inaccurate or incomplete information for inclusion on the register, failing to register acts of regulated lobbying and failure to comply with an information notice from the Clerk are criminal offences under the Act.
The punishment for these failures is a fine, which would currently be of up to £1,000.
More seriously, failure to fully cooperate with the Commissioner for Ethical Standards in Public Life’s investigations will be a criminal offence, with a potential punishment of a fine of up to £5,000 or up to three months’ imprisonment.
It is clear, therefore, that complying with Act’s provisions is a serious and important legal duty.
The implementation of the Act will be reviewed in early 2020.
The Act represents a step-change in how lobbying is regulated in Scotland, and it is necessary that all of those who participate in lobbying recognise both the spirit and the letter of the legislation.
- In order to help our members prepare for the implementation of the Lobbying Act, Scottish Renewables has invited expert speakers to address a free seminar on February 13 in Glasgow.
- To book a place at this event, please see the event site
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