The Scottish Government has announced the date on which its new public Lobbying Register comes into effect; organisations have until 12 March 2018 to get to grips with the new rules on ‘regulated lobbying’, which were introduced by the Lobbying (Scotland) Act 2016. The aim of the Act is to bring about greater openness and increase public transparency in relation to regulated lobbying.
Failing to register details within the necessary time limits, or providing incomplete or inaccurate information, could expose you to a fine of up to £1,000. Those who fail to comply with an investigation could find themselves liable to a prison sentence or a fine of up to £5000.
To avoid such penalties, and also reputational damage, it’s important for organisations including charities and social enterprises and their staff to understand exactly which conversations and communications they must register.
What is ‘regulated lobbying’?
‘Regulated lobbying’ in Scotland covers face-to-face communication between any individual or organisation and MSPs, Scottish Government Ministers, special advisers and the Scottish Government’s Permanent Secretary.
However, only communications which concern Scottish Government or Parliamentary functions, and which are intended to inform or influence decisions on behalf of your organisation constitute regulated lobbying and must therefore be entered into the Lobbying Register.
Face-to-face communications include meetings (either planned or a chance encounter), conversations at a social or parliamentary event, video conferences, and in certain circumstances speeches, round-table discussions, or Q&A sessions.
Not included in the Act are emails, letters, tweets, other written communications or phone calls. In addition, a list of 13 exemptions means that some oral communications are not included either. These exemptions include:
- someone raising an issue on their own behalf (rather than for an organisation)
- raising an issue with an MSP for the constituency or region where your organisation is based or ordinarily operates (this exemption does not apply to discussions with Scottish Government ministers, or if you raise an issue on behalf of a third party)
- your organisation has fewer than 10 full-time equivalent employees
- responding to a request for factual information or views on a topic.
- proceedings of the Scottish Parliament, including the meeting of a parliamentary committee.
There is also the option to register communications activity voluntarily, even if it is not required by the Act. It’s worth taking advice on the pros, cons and procedures for doing this.
Does the Act apply to everyone who works with you?
The legislation applies only to those who receive payment. So all your salaried staff will be covered (not just policy staff), and any consultants who you pay to work for you. In the case of the latter, it will usually be their own responsibility to register their regulated lobbying activity; however, if a member of your staff accompanies them to a meeting, you would need to register the meeting as well. If you do use consultants for your lobbying, it is worth taking advice on your respective obligations.
Since unpaid workers are not covered by the Act, face-to-face communications undertaken by unpaid trustees, board or committee members or other volunteers will not require to be registered.
How do you register?
The Lobbying Register is online, free to use and accessible to all. Every individual or organisation that engages in regulated lobbying in Scotland must register, and this includes organisations that are not based or headquartered in Scotland.
In October 2017, the Scottish Parliament began a 4-month ‘familiarisation period’ for the Lobbying Register, and it is encouraging organisations and individuals to practise registering and creating information returns. The Register can be accessed at www.lobbying.scot. The website gives details on how to activate an account, which will allow you and others in your organisation to use the Lobbying Register.
If you do decide to submit practice returns before March 2018, bear in mind that details you submit will be open to public search. Therefore be cautious and sensible in your practice submissions.
What information will you need to submit?
For any regulated lobbying you do, you will need to submit details of:
- who you have lobbied
- when and where it happened
- the purpose of the lobbying.
Information Returns will need to be submitted within 30 days of the first instance of regulated lobbying.
Once registered you must submit an Information Return no later than 2 weeks after the end of each 6-month period after you first engaged in lobbying. If you wish to submit returns sooner, you can do.
If you are planning to hold or attend an event next year, what should you do?
If you are due to attend or host an event on or after 12 March 2018, where there will be Government ministers, MSPs or special advisers, you should rehearse beforehand exactly what you will need to record.
For example, make sure all your paid staff know they must remember and report back any relevant conversations, so that you can register them. If a staff member has several conversations with different people, each one will need to be recorded separately. However, lobbying conversations by your unpaid staff, or by guests at the event who do their own lobbying whilst there, will not need to be registered.
Where can you find more information?
Parliamentary guidance, which includes a helpful flow chart with the Five Key Steps to consider and some Common Scenarios, is available here and provides a good reference point.
If you would like detailed and tailored advice about the Lobbying (Scotland) Act 2016, the Lobbying Register, and how it applies to you, we would be very happy to help.
