Earlier this month, the Scottish Parliament’s Lobbying Register Team released draft parliamentary guidance to help lobbyists, including charities and other voluntary sector organisations (and their representatives), prepare for the implementation of the Lobbying (Scotland) Act 2016 (the “Act”).
The Act, which is due to come into force in early 2018, aims to increase transparency around lobbying in Scotland. It will require certain kinds of “face-to-face” lobbying with the Scottish Parliament or Scottish Government (known as “regulated lobbying”) to be recorded in a new Lobbying Register.
Click here to read our legal briefing to learn more about the Act itself.
Together with a “common scenarios” document and FAQ, the draft guidance explains what will be considered to be regulated lobbying under the Act, and how to use the Lobbying Register.
Five key steps
At the heart of the new guidance is a set of five principles explaining when a communication will be considered to be regulated lobbying. These are known as the “5 key steps” and are intended to be a regular reference point when applying the Act. If a communication fulfils all five key steps, it will be considered to be regulated lobbying.
Below is a brief summary of each of the steps:
Step 1: What kind of communication is covered?
The communication must have been made orally and face-to-face with MSPs, Scottish Government Ministers or the Scottish Government’s Permanent Secretary or Special Advisers. This includes video-conferencing as well as meetings in person.
Step 2: What is the communication about?
Generally, a communication with members of the Scottish Parliament or the Scottish Government should relate to Scottish Parliament legislation, Scottish Government policy, or financial assistance (such as grants and contracts). Discussions about licences and authorisations are also covered, as are matters raised with an MSP which the MSP could take forward in an official capacity.
Step 3: What is the communication intended to do?
A communication should be intended to inform or influence decisions on behalf of an organisation. The draft guidance explains that promotional work during an event, or answering an MSP’s or minister’s question, will not necessarily be regulated lobbying. It emphasises that it is the nature of the conversation during any activity which matters.
Step 4: Is the lobbyist paid?
If a lobbyist is paid and is representing the views of an organisation, this will fulfil step 4. Payment for these purposes does not include reimbursement for travel, subsistence or other reasonable expenses related to making the communication. This is notable as many chairpersons and other board members of third sector organisations are unpaid, and therefore will not fulfil step 4.
Step 5: Does an exception apply?
The Act makes it clear that certain kinds of lobbying are not regulated lobbying, even if they would otherwise be covered. For example, an individual raising an issue on their own behalf or issues raised with a local MP are not regulated lobbying. Step 5 lists these various important exceptions and, if these do not apply, step 5 will be fulfilled. A checklist is included with the guidance which outlines the exceptions (and various qualifications to the exceptions).
So, if a communication fulfils the five key steps, it will be regulated lobbying and should be recorded in the Lobbying Register. The draft guidance explains how this will be done.
The five key steps will be a very useful starting point when deciding whether a communication is covered by the Act. However, they are not an exhaustive checklist. The draft guidance urges lobbyists to consider the underlying Act, particularly in more complex cases, and to consult the Lobbying Register Team as required.
The guidance is now “at a very advanced stage” (it is labelled a “final draft”) and is due to be formally published after consultation with the Scottish Ministers.