Lobbying (Scotland) Act 2016: does the Act apply to your organisation?

On 12 March 2018, the Lobbying (Scotland) Act 2016 came into force. The Act was introduced with the intention of bringing greater openness and transparency around lobbying Members of the Scottish Parliament (MSPs) and requires certain organisations to record on the public Lobbying Register any instances of regulated lobbying.

Any organisations who are likely to have any face-to-face contact with MSPs, Members of the Scottish Government, junior Scottish Ministers, special advisers or the Permanent Secretary of the Scottish Government should register with the Lobbying Register.

What is regulated lobbying?

In terms of what constitutes regulated lobbying, this requires:

• a person to have communicated orally and face-to-face;
• with a MSP, member of the Scottish Government (Cabinet Secretaries and Scottish Law Officers), junior Scottish Minister, Scottish Government Special Advisers or the Scottish Government’s Permanent Secretary;
• about Scottish Government or parliamentary functions;
• which informs or influences, or is intended to inform or influence, decisions made by the Scottish Government or Scottish Parliament;
• on behalf of that person’s organisation (or those that it represents);
• but only if the person was paid by the organisation for which they lobbied (or those that it represents).

Given the wide definition of regulated lobbying, it is foreseeable that many organisations, and particularly those such as charities, representative groups or regulated bodies which work closely with the Scottish Government and Scottish Parliament, may be caught by the Act.

The Scottish Parliament has published Parliamentary Guidance, together with FAQs, Common Scenarios and an information leaflet (all available here), which should be referred to for specific guidance on whether a conversation constituted regulated lobbying. In particular, there is a helpful flowchart available to assist organisations in determining whether they need to register a communication as lobbying on the Lobbying Register.

Types of communications

The Act covers oral communications, including video conferencing, but specifically excludes other forms of communication, such as letters, emails and telephone calls. Regulated lobbying also includes communications made through signing, such as British Sign Language.

Exemptions

The Act does provide for certain types of communication to be exempt from regulated lobbying. This includes communications made by or on behalf of:

• Members of the Scottish Parliament, the Scottish Ministers or other office holders in the Scottish Administration, as well as members of other UK and EU Government and parliamentary bodies;
• local authorities;
• public authorities within the meaning of Freedom of Information Act 2000 or Freedom of Information (Scotland) Act 2002;
• Her Majesty;
• persons or trade unions where the communication forms part of, or is directly related to, negotiations on terms and conditions of employment of the employees of the person or members of the trade union;
• persons for the purposes of journalism;
• persons in the course of a meeting of a group recognised as a cross-party group by the Parliament;
• persons representing an organisation which at the time has fewer that ten full-time equivalent employees;
• an individual on individual’s own behalf.

There are also exceptions available for communications made by or on behalf of organisations to their local MSP.

Additionally, there is an exemption available for communications made in formal proceedings of the Scottish Parliament, or required under statute, or made in response to requests for factual information or views on a topic from the person to whom the communication is made (e.g. the MSP) or a person acting on their behalf.

Examples of regulated lobbying

It is clear that the formality or otherwise of the situation is not a key factor in whether a communication constitutes regulated lobbying. So, for example, if a person bumped into an MSP in the street and a casual conversation turned to work-related issues, this could potentially be regulated lobbying depending on the content of the conversation which took place.

It is also worth noting that events arranged within the Parliament are not part of the exempt formal parliamentary proceedings, so communications that take place in that context are not exempt from the definition of regulated lobbying. Accordingly any paid employees or other office holders attending such event should be made aware that they will require to report back to their organisation any conversations which may fall within the definition of regulated lobbying.

Another situation which could constitute regulated lobbying is where a person is making a speech at an event attended by an MSP or Scottish Government Minister and targets part of their speech towards that person in order to inform or influence decisions about Scottish Government or Scottish Parliamentary functions on behalf of their organisation (or those which they represent), for which they are paid, then this may constitute regulated lobbying.

In any given situation where organisations are unclear as to what constitutes regulated lobbying, they should refer back to the five step flowchart in the Parliamentary Guidance and seek advice from a solicitor or the Lobbying Registrar.

The Lobbying Register

Organisations which carry out regulated lobbying require to register online at www.lobbying.scot and complete an Information Return for each instance of regulated lobbying. The Lobbying Register went live on 12 March 2018 and is publicly available.

Organisations require to register in the Lobbing Register no later than 30 days after their first instance of regulated lobbying and must submit an Information Return every six months. The Information Return must accurate, relevant and understandable.

There is currently a question mark over how much an organisation needs to disclose in relation to confidential or commercially-sensitive communications with MSPs, for example. The Parliamentary Guidance recommends discussing with the Lobbying Registrar if there are any concerns about sensitive information being made public.

If an organisation does not engage in any regulated lobbying during a six-month period, then it must simply record this as a “nil return”. Reminder e-mails will be issued by the Lobbying Registrar.

Enforcement

The Commissioner for Ethical Standards in Public Life in Scotland is responsible for investigating and reporting on claims of alleged breaches of the Act and may censure the person who is the subject of a report to Parliament. Failing to provide information, or accurate information, or registering on the Lobbying Register could result in the organisation being fined up to £1000. Any failure to comply with an investigation by the Commissioner could result in a fine of up to £5000.

Organisations who are likely to have any face-to-face contact with MSPs, Members of the Scottish Government, junior Scottish Ministers, special advisers or the Permanent Secretary of the Scottish Government should register with the Lobbying Register and on a six-monthly basis consider whether to submit any Information Returns or a nil return. It is recommended that any organisations which are subject to the Act and likely to carry out regulated lobbying should make all their staff, consultants, partners and members aware of what may constitute regulated lobbying and what they require to do in that situation.

If you require assistance in preparing an organisational policy on regulated lobbying, or providing training to your staff on regulated lobbying, please get in touch.