The Lobbying (Scotland) Act 2016 comes into force fully on Monday 12 March 2018. From this date, any face-to-face interaction which you or your business have with members of the Scottish Parliament or other listed individuals may constitute lobbying with consequential compliance responsibilities backed up by potential criminal penalties for non-compliance. It does not matter where the lobbying takes place or whether you are located in Scotland or elsewhere – it is the nature (and not the location) of the interaction with the relevant person that is relevant.

How does this new legislation interact with and compare to the existing UK-wide law?

The UK-wide ‘Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014’ (the UK Act) has similar aims of increasing transparency in relation to the lobbying of UK Government ministers and specified others - communications orally or in writing with these specified individuals may fall within that regime which continues to apply in respect of interactions with relevant Westminster personnel (but does not cover lobbying of the devolved administrations). The UK Act aims to capture lobbying activity by professional consultant lobbyists alone: there are wide-ranging exclusions taking those who carry on a business which consists mainly of non-lobbying activities who make lobbying communications only as an incidental part of their representative function outwith the scope of the legislation.

In contrast, the new Scottish law is not concerned with the status of the lobbyist of (in this case) members of the Scottish Parliament and specified others; instead, anyone lobbying the specified individuals in return for payment of any kind (whether made directly or indirectly for making the communication) is potentially within the remit of the legislation. This is wide-ranging in effect as it potentially catches all communications made by salaried employees, regardless of whether the payment they receive from their employer (e.g. salary) relates to making such communications.

What are the implications for you and your organisation?

The implications are twofold:

1. If you/your organisation (including employees on your behalf) interact face to face (in person or by video conference) with:

(there are links to lists of current members, ministers etc. at the end of this note)

you/your organisation may have to register on the Lobbying Register and submit a return every time that you engage in any such interaction that is ‘regulated lobbying’ for the purposes of the Act.

  • members of the Scottish Parliament
  • Scottish government ministers
  • Special advisers (as defined in the Act)
  • the Scottish Government’s Permanent Secretary

(there are links to lists of current members, ministers etc. at the end of this note)

you/your organisation may have to register on the Lobbying Register and submit a return every time that you engage in any such interaction that is ‘regulated lobbying’ for the purposes of the Act.

2. The Lobbying Register is designed to increase public transparency – it is available to and searchable by the general public; therefore information on which parties or interest groups have lobbied any of the above members of the Scottish administration from time to time and the stated purpose of the lobbying will be publicly available.

What is lobbying?

Not every interaction with the above persons will count as regulated lobbying. The Scottish Act, unlike the UK Act, catches only face to face encounters where you can see and hear the other person - this would include video conferences but ordinary ‘phone calls and written communications of any description are excluded from the scope.

It does not matter whether the interaction takes place within or outside Scotland – what is relevant is the nature of the interaction, not where it takes place. It follows that all businesses UK wide and elsewhere (and not just in Scotland) need to be aware of and comply with the legislation if interacting with MSPs and the other parties listed above.

Regulated Lobbying is defined in Section 1 of the Act. In summary, an individual is engaged in regulated lobbying if she/he makes a communication which is made orally to one of the persons detailed in 1 above in person or by video conference in relation to Scottish Government or parliamentary functions which is not a communication of a kind specified in the ‘Not Lobbying’ schedule to the Act. (If someone is making that communication in the course of a business as an employee, director, partner or member of an organisation carrying on that business, it is the organisation and not the individual employee etc. which is engaging in regulated lobbying.)

Government or parliamentary functions are very widely defined in Section 2 of the Act and include the development, adoption or modification of any proposals in respect of Scottish legislation or government policy, the grant of or taking any steps in relation to any agreement, grant, financial assistance, licence or authorisation by any Scottish Minister or relevant office-holder or the taking by such a person of any step in relation to a matter raised in proceedings of the Parliament, or representing as an MSP the interests of persons other than in proceedings of the Parliament.

Parliamentary Guidance has been issued on the Act:

http://www.parliament.scot/LobbyingRegister/20171004ParliamentaryGuidance.pdf

Helpfully, the Guidance clarifies that a communication in relation to Government or parliamentary functions will only be treated as Regulated Lobbying if the lobbyist ‘used the opportunity to inform or influence decisions on behalf of [my] organisation (or those I represent)’.

The Guidance includes a flowchart to help you to decide if you have engaged in regulated lobbying and additional ‘Frequently Asked Questions’ and ‘Common Scenarios’ have also been produced.

Exclusions – ‘Not lobbying’

As mentioned above, reference should be made to the Schedule to the Act which sets out a number of exemptions, helpfully summarised in the Guidance. Interactions not treated as lobbying include communications which are:

  • about an issue you are raising on your own behalf;
  • with an MSP who represents the constituency or region where you live or where the company/organisation is based (but doesn’t exempt where the MSP is also a Scottish Minister or where you are communicating on behalf of a third party);
  • not made by you in return for payment (but this does not exempt communications made by individuals as employees/members etc. because a communication is treated as having been made in return for payment if that individual receives payment in that capacity (i.e. as an employee or in some other role) regardless of whether the payment relates to making communications);
  • undertaken by you when your company/organisation had fewer than 10 full-time equivalent employees (but doesn’t exempt where you are communicating on behalf of a third party or in a representative capacity);
  • during formal parliamentary proceedings of the Scottish Parliament (e.g. a meeting of a parliamentary committee) or as a communication required by statute or another rule of law;
  • in response to a request from MSPs, Scottish government ministers etc.;
  • during a quorate meeting of a cross-party group of the Scottish Parliament;
  • for the purpose of journalism;
  • part of or related to negotiations on terms and conditions of employment of the employees of the person or by/on behalf of a trade union in that connection;
  • made by a political party;
  • already exempt due to public role/functions of communicant (e.g. judiciary, the Monarch, MSPs; UK Government ministers etc.)

Making a return

If you are satisfied that an interaction may constitute regulated lobbying, you will require to register in the Lobbying Register if you have not done so already and then lodge the requisite information return(s) within the specified time periods. The information to be included in the return is:

  • the date of the lobbying activity;
  • the name and role of the person lobbied (civil servant; Minister; MSP; Scottish Law Officer; Special Adviser);
  • the location where the person was lobbied;
  • a description of the event, meeting, or other circumstances of the face to face encounter;
  • whether the interaction was face to face or by video conference
  • the name of the individual who carried out the communication and whether it was on their own behalf or the name of the person it was undertaken for;
  • the purpose of the lobbying.

Enforcement and Penalties

There is a three tier enforcement system. In the first instance, the Clerk of the Scottish Parliament has overall responsibility for monitoring compliance and has the power to issue Information Notices where there are grounds for believing that there has been engagement in regulated lobbying without compliance with the Act. Additionally, the Commissioner for Ethical Standards in Public Life in Scotland may investigate complaints about alleged breaches and ultimately, the Scottish Parliament has the power to censure lobbyists publicly if a breach is found to have occurred. Beyond that, certain offences under the Act may incur criminal prosecution and penalties including imprisonment.

Resources:

Lobbying (Scotland Act) 2016.

Governmental resources including the draft statutory guidance, FAQs and Common Scenarios.

List of current Scottish ministers.

List of special advisers.