Businesses and organisations that engage with either the Scottish Government or Members of the Scottish Parliament (MSPs) will be required to comply with the new requirements of the Lobbying (Scotland) Act from 12 March 2018.
The Act creates a more onerous regulatory regime for lobbying in Scotland. Parties who undertake 'regulated lobbying' must disclose details about themselves and the issues that they lobby on with the Clerk of the Scottish Parliament via an online public register.
The Act's scope is much wider than Westminster rules and applies to all companies, trade associations, trade unions, charities and public affairs consultants who engage in ‘regulated lobbying.’
Regulated lobbying is any oral communication made in person or via video-conferencing with MSPs, Scottish Government Ministers, Scottish Government Special Advisors or the Scottish Government Permanent Secretary in relation Scottish Government or Scottish Parliamentary functions.
The Act does not limit when or where regulated lobbying may take place and does not stipulate it has to be conducted in Scotland. It is the type of conversation that counts, not the when or where the discussion took place.
Conversations in response to a request for factual information or views on a particular topic by a MSP/Minister are not caught, however if the conversation then extends beyond this topic, it may become regulated lobbying.
There are several exemptions, including where an individual raises an issue on their own behalf or in an unpaid capacity.
Equally activity undertaken by an individual acting on behalf of a small organisation with fewer than ten full-time employees, except where the organisation's main purpose is to represent the interests of others will be exempt.
In addition where an organisation communicates with their local constituency MSP (but not where the MSP is also a Minister) and where the contact is specifically about terms and conditions of employment are also exempt. The aim here is that sensitive discussions about job losses / restructuring need not be disclosed.
Organisations have been able to sign up to the register since 23 October 2017 to familiarise themselves with the process. Importantly, organisations who engage in regulated lobbying after the 12 March 2018 must register within 30 days of when the first instance of regulated lobbying occurred.
Failure to register is a criminal offence, potentially both for the organisation as well as its directors, officers and managers, as is providing incomplete or inaccurate information. A fine of up to £1,000 can be imposed on offenders. It is a defence to show that the person charged exercised all due diligence to comply with the Act.
The legal onus is on the business (rather than an employee) to register. A nominated individual activates an online account and can then submit details of each instance of regulated lobbying carried out by a business's employees at least every six months. Relevant details include the lobbying date and location, name and role of the person lobbied, the circumstances in which the lobbying occurred, the name the lobbyist and the purpose of the lobbying, including details of clients if acting on their behalf.