In preparation for the Lobbying (Scotland) Act 2016 coming fully into force, this briefing provides a summary of its key provisions. Issues highlighted in the briefing include identifying provisions in the legislation which could mean that lobbying of Members of the Scottish Parliament and the Scottish Government would be subject to a different level of regulation than lobbying of Members of the UK Parliament and the UK Government under the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.
The Lobbying (Scotland) 2016 Act (the 2016 Act), which received Royal Assent on 14 April 2016, aims to increase the level of public transparency in relation to direct, face-to-face contacts made between certain individuals or organisations and the Scottish Parliament or Scottish Government (regulated lobbying). The 2016 Act provides for the establishment of a Register of Lobbyists, including paid lobbying consultants as well as ‘in-house’ lobbyists working within organisations on behalf of them. The 2016 Act also provides for the publication of a Code of Conduct for Persons lobbying MSPs, which will apply in relation to any kind of communication with an MSP, not just ‘regulated lobbying’.
It is anticipated that the new Register of Lobbyists will be fully operational within 18 to 24 months of the 2016 Act receiving Royal Assent, so any time between autumn 2017 and spring 2018. The procurement process to develop an online register is underway. Mr Billy McLaren, former Private Secretary to the Presiding Officer of the Scottish Parliament, has been appointed as a lobbying registrar by the Clerk of the Scottish Parliament.
What is regulated lobbying?
The 2016 Act does not include all ‘lobbying’ within the scope of its regulatory requirements. The activities defined as regulated lobbying in section 1 of the 2016 Act are:
oral communications in relation to Government or parliamentary functions, made in person in face-to-face meetings, or made using equipment such as video-conferencing where parties can see and hear each other when the communication is being made, to:
- a Member of the Scottish Parliament,
- a member of the Scottish Government,
- a junior Scottish Minister,
- a Special Adviser or the Permanent Secretary of the Scottish Government
The section 1 definition excludes other forms of communication, such as letters, emails and telephone calls and the Schedule to the 2016 Act lists exempt communications in given circumstances.
The scope of ‘regulated lobbying’ includes activities carried out by paid consultants acting on behalf of other parties, as well as activities by organisations using ‘in-house’ lobbyists such as employees, directors, office-holders, partners or other members of an organisation. However, where an organisation is engaged in lobbying activities using ‘in-house’ arrangements, section 1 of the Act appears to provide that it is the organisation that is considered to be engaged in regulated lobbying, rather than the individual performing the ‘in-house’ function, for the purposes of the Act.
Regulated lobbying includes communications made through signing, for example, British Sign Language. The Parliament has a power to amend, by resolution, the definition of ‘regulated lobbying’ by adding, modifying or removing a description of a type of communication.
Government or parliamentary functions
To be regulated lobbying, the communication must be made in relation to Government or parliamentary functions. These functions include: the development, adoption or modification of legislation or Government policy; the making, giving or issuing of Scottish Government agreements; financial assistance or authorisation; and speaking, lodging a motion, voting or taking other steps in relation to matters raised in parliamentary proceedings.
Certain types of communication are exempt from the definition of regulated lobbying. These are communications by:
- Members of the Scottish Parliament, House of Commons, House of Lords, Welsh Assembly, Northern Ireland Assembly, the Scottish, Welsh, Northern Ireland or Welsh Governments;
- other States, EU institutions or international organisations;
- a local authority or public authority within the meaning of Scottish and UK freedom of information legislation;
- individuals on their own behalf;
- a business to their local MSP;
- unpaid individuals;
- organisations with less than 10 full-time equivalent employees, unless one of their principal purposes is to represent the interests of others;
- made in a Cross-party group, Parliamentary proceedings or required by law;
- in response to a request for factual information or views;
- for the purposes of journalism;
- in relation to terms and conditions of employment, including by trade unions for negotiating for their members;
- registered political parties;
- the judiciary.
Once the Register is operational, a person who engages in regulated lobbying must register within 30 days of any such lobbying, and must submit returns with information about their lobbying activity every 6 months after that.
The Register will contain information about the registrant’s identity and their regulated lobbying activity, including the name of the person lobbied, the date, the location, the circumstances, the purpose, the name of the individual making the communication and on whose behalf the communication has been made.
Oversight and Enforcement
The Clerk of the Parliament (“the Clerk”) is responsible for monitoring compliance with the duties imposed by the 2016 Act, including the power to require information from registrants, or unregistered persons they reasonably believe may be engaged in regulated lobbying.
The 2016 Act also confers new functions on the Commissioner for Ethical Standards in Public Life in Scotland, namely, the duty to investigate and report on complaints about compliance with the 2016 Act. For the purposes of any such investigation, the Commissioner has the power to require the production of documents or call witnesses to give evidence. The Commissioner can report to Parliament on the findings of an investigation and the Parliament may censure the person who is the subject of the report.
The 2016 Act also creates offences for failing to provide information to the Clerk, failing to register on the Lobbying Register and providing inaccurate information returns, with fines of up to £1,000. It is also an offence to fail to comply with an investigation by the Commissioner, with fines of up to £5,000.
Guidance and Code of Conduct
Under the 2016 Act, Parliament must publish guidance on the operation of that Act and a Code of Conduct for Persons lobbying MSPs. More detail will be available in due course on the circumstances in which a person engages in regulated lobbying and their conduct. It is also worth noting that the scope of the 2016 Act (types of communications and people covered) may be subject to future amendment, given that the Act includes a requirement on the Parliament to report on the operation of the Act, two years on from fully coming into force.
It is noted that the 2016 Act includes oral communications as regulated lobbying, regardless of where they occur (i.e. within or outwith Scotland). It remains to be seen how communications occurring outwith Scotland can be effectively monitored and enforced under the 2016 Act. The Scotland Act 1998 provides that the Scottish Parliament does not have the legislative competence to pass laws that would form part of the law of a country or territory other than Scotland. Difficulties may also arise in relation the effective exercise of the powers set out in the 2016 Act to obtain information and to obtain evidence about the suspected commission of a criminal offence under the 2016 Act.