Lobbying: the new regime
The Scottish Parliament’s new Lobbying Register is approaching its introduction, scheduled for the first quarter of 2018. What forms of lobbying are covered, and how to comply with the law?
Following considerable scrutiny and debate, the Lobbying (Scotland) Act 2016 became law in April 2016. That debate recognised lobbying as a legitimate and valuable part of our democratic process, whilst agreeing that a public Lobbying Register was appropriate in terms of public transparency, for certain types of lobbying.
The Scottish Parliament was given the duty to develop and implement the systems and guidance to operate a new Lobbying Register, and committed to do so within two years of the Act being passed.
To assess whether the Act will impact on you and your firm, it is crucial to know what types of lobbying it applies to. The Act uses the term “regulated lobbying”, and only instances of regulated lobbying will require to be recorded on the new Lobbying Register.
Parliamentary guidance has already been developed in conjunction with the Lobbying Register Working Group, comprising representatives from business, public relations, third-sector organisations, key representative bodies and individuals from the legal sector, the pro-transparency community and journalism.
It is within the parliamentary guidance that you will find our 5 Key Steps (more at www.parliament.scot/lobbying). The 5 Key Steps help to describe concisely what regulated lobbying is. If any of the following 5 Key Steps do not apply to your circumstances, you will not be engaged in regulated lobbying.
Step 1 makes clear that regulated lobbying applies to oral communications – and only those which are made face to face with MSPs or the Scottish Government’s ministers, special advisers or Permanent Secretary. You could be engaging in person or by any form of videoconference.
To be clear, regulated lobbying does not apply to any other types of communication, such as emails, letters, tweets, phone calls, etc.
Step 2 sets out that regulated lobbying only applies to communications made about Scottish Parliament or Scottish Government functions.
Significantly, there is no exclusion to where or when regulated lobbying can take place. That means it is possible that regulated lobbying could take place anywhere and at any time, and not just in formal situations when you meet MSPs or the Scottish Government’s ministers, special advisers or Permanent Secretary.
In some of these less formal situations a conversation may well not develop into a discussion which would be regulated lobbying; however, if you choose to lobby when doing so, you should keep in mind that any discussion can count, regardless of where it takes place. With regulated lobbying it is the conversation you have that counts, not where it takes place.
Of course, that conversation has to concern Scottish Parliament or Scottish Government functions and you would also be using the opportunity to inform or influence decisions on behalf of your organisation, or those organisations you represent. That’s acknowledged in our Step 3.
Importantly, you also have to be paid in some capacity, which is set out as Step 4. That means payment in the widest context – not just payment for a particular piece of lobbying. So, if your organisation or firm (or those you represent) pays you a salary or provides other forms of payment, that will count too.
Step 5 sets out that even if you match all the four previous steps, there are 13 exemptions to regulated lobbying, covering a wide range of circumstances and organisations. As such, a large part of the parliamentary guidance is committed to explaining the exemptions in more detail, so you can make a considered decision about whether the lobbying activities you engage in are actually regulated lobbying.
How to get started
With all of this, the Lobbying Register Team at the Scottish Parliament will be here to help. Our new website and the online Lobbying Register will be available soon at www.lobbying.scot. As soon as it goes live, you will be able to practise on the new online Lobbying Register for the following four months and make yourself familiar with the parliamentary guidance, before the Act is fully commenced.
Register with us at firstname.lastname@example.org. We will send you our regular e-bulletins and keep you up to date with all developments on the road to our formal launch next year.
Billy McLaren is the Scottish Parliament’s Lobbying Registrar.