The Lobbying (Scotland) Act 2016 became law in April 2016: the resulting Lobbying Register in Scotland - designed to improve transparency – came into force on Monday 12th March, 2018.
The Lobbying Register Team have produced a range guidance and publications based on the feedback and input of stakeholders:
- The Lobbying Register in Scotland website;
- A brief summary of the five key steps and exemptions;
- The detailed parliamentary guidance;
- Common scenarios;
- The guide for MSPs;
- The code of conduct for persons lobbying MSPs;
The below acts as an FAQ for PRCA members and covers the test for regulated lobbying and the mechanics of registration itself. The Lobbying Register in Scotland applies to both consultancies and in-house practitioners.
In short, if you (i) communicate orally and face-to-face with an MSP, a member of the Scottish Government, a junior Scottish Minister, the Scottish Government's Permanent Secretary, or a Scottish Government Special Advisor (ii) about Scottish Government or Scottish parliamentary functions, (iii) use the opportunity to inform or influence decisions on behalf of your organisation or client, (iv) are paid to do so, and (v) none of the exemptions apply to your lobbying, then you are carrying out regulated lobbying and this needs to be recorded on the Lobbying Register in Scotland.
All members engaging in public affairs and lobbying and the Scottish Parliament need to be aware of this test and evaluate their actions against said test. Similarly, you are required to register each instance of regulated lobbying which presents a clear regulatory burden for many members. If any members have any further questions, please contact Nicholas.Dunn-McAfee@prca.org.uk who will be able to assist you.
Regulated lobbying: step one - are you carrying out the actions (and engaging with the individuals) covered by the Lobbying (Scotland) Act 2016’s definition of “regulated lobbying”?
The first step to understanding the Lobbying Register in Scotland is to recognise that it applies to both in-house and consultancy practitioners and that the Lobbying Register in Scotland is only concerned with what it defines as “regulated lobbying”.
Communications made orally face-to-face with an MSP, a member of the Scottish Government, a junior Scottish Minister, the Scottish Government’s Permanent Secretary, or a Scottish Government Special Advisor form the basis of regulated lobbying.
Regulated lobbying, therefore, excludes letters and emails, or any oral and face-to-face meetings with, for example, an MSP’s member of staff. It does not apply to the UK Government (for instance, the Secretary of State of Scotland) nor does it apply to Members of Parliament who represent Scottish constituencies: lobbying of the former is covered by the Lobbying Act 2014’s Register of Consultant Lobbyists and lobbying of the latter is not currently covered by any statutory lobbying transparency regime.
If you are making these oral and face-to-face communications with one or more of those individuals, go to step two. If not, then you are not conducting regulated lobbying and do not need to appear on the Lobbying Register in Scotland.
Regulated lobbying: step two - what is the topic of your communication?
The second step is to consider the topic of your communication. As with the first step, not every engagement is covered. To be considered regulated lobbying, the communication “must be in relation to Scottish Government or Scottish parliamentary functions” which are covered in detail in Section 2 of the Act. Notably, the Act applies regardless of where the lobbying takes place and applies regardless of where you and your organisation are based.
If your communication is in relation to Scottish Parliament legislation or Scottish Government policy (recognising, for instance, that the Scottish Government holds policies on areas outside of its legislative agenda or powers), then the topic meets the definition of regulated lobbying.
If your communication is in relation to contracts, grants, “other financial assistances”, licences, and “other authorisations” where the Scottish Government has a role, then the topic meets the definition of regulated lobbying.
If your communication is in relation to matters you have raised with any MSP, and not covered by any exemptions, which they can “take forward” in their capacity as an MSP (for example, that MSP becoming a campaign ambassador who then engages with their Scottish Parliament colleagues on the matter or raises your issue in the media on your behalf) “inside or outside the Scottish Parliament”, then the topic meets the definition of regulated lobbying.
If your communication falls under any of these broad categories, go to step three. If not, then you are not conducting regulated lobbying and do not need to appear on the Lobbying Register in Scotland.
Regulated lobbying: step three - how are you using this opportunity?
The third step is to consider whether you are using the opportunity to “inform or influence decisions on behalf of your organisation (or those you represent)”. In light of the fact that recording regulated lobbying is a legal requirement and that the person you are engaging with may consider it regulated lobbying and may, therefore, expect to see it recorded. This requires you and your organisation to make a clear judgement. It also requires you to manage expectations.
The parliamentary guidance goes into detail: “Not every conversation you have will be regulated lobbying. For example, promotional work during an event, helping at a media opportunity or indeed meeting an MSP or Minister and answering their questions during a visit to your workplace is not necessarily regulated lobbying. It’s the nature of the conversation you have with those individuals during any activity which matters.”
If you are using the opportunity to inform or influence decisions, go to step four. If not, then you are not conducting regulated lobbying and do not need to appear on the Lobbying Register in Scotland.
Regulated lobbying: step four - are you being paid?
Step four - put simply – excludes volunteers and pro-bono lobbying: you must be paid (directly or indirectly). The schedule of the Act goes into detail: payment “(i) means payment of any kind, whether made directly or indirectly for making the communication, (ii) includes entitlement to a share of partnership profits, and (iii) does not include reimbursement for travel, subsistence or other reasonable expenses related to making the communication”.
If you are being paid (directly or indirectly) for your lobbying, go to step five. If not, then you are not conducting regulated lobbying and do not need to appear on the Lobbying Register in Scotland.
Regulated lobbying: step five - is your lobbying excluded from registration by any of the exemptions?
Step five is crucial: even if your activities have met the previous four steps, your communications may still be completely exempt from registration if they meet the below (as detailed in the guidance):
- Made by individuals raising issues on their own behalf;
- Made during discussions with (most) local MSPs;
- Made by those who are unpaid;
- Made by those representing some small organisations;
- Made in formal proceedings of the Scottish Parliament or required under statute;
- Made in response to requests for factual information or views on a topic (from an MSP, Minister, Law Officer, and so on);
- Made during quorate meetings of Cross-Party Groups of the Scottish Parliament.
- Made for the purposes of journalism;
- Made during negotiations about terms and conditions of employment;
- Made by political parties and some public figures, bodies, and professions.
Some of these exemptions are straight-forward such as communications made for the purpose of journalism or those made by political parties: someone writing an article for a newspaper or a political party worker briefing its MSPs cannot be reasonably considered lobbyists. Some of these exemptions are more complex and require further explanation and application.
The small business exemption applies to organisations with fewer than ten FTE employees around the time of lobbying, but this comes with two significant stipulations. First, it does not apply if your organisation is not acting on its own behalf (for example, a small PR and communications consultancy would not be exempt when lobbying on behalf of clients). Second, this exemption does not apply if you are a representative body (“a body that exists primarily to represent the interests of other people”, for example, a trade association).
Similarly, the local MSP dynamic merits further explanation. Regulated lobbying does not include communications made to a local MSP who is not a Scottish Minister: this exemption means that most communication which “businesses and organisations have with their constituency or regional MSPs will continue unchanged […] This means that MSP engagement at this local level is not treated as regulated lobbying under the Act”. Members should note that there is no specific measure of “local” and that guidance on the area instead steers potential registrants towards addressing the matter in terms of activities “ordinarily carried on” in that area: “As this exemption effectively removes from regulated lobbying all communications between MSPs and those they have a genuine local relationship with, you should consider whether your business or activities are significant or relevant enough to be those which are ‘ordinarily carried on’ in that local area.”
Additionally, there are exemptions which apply to communications made on an individual’s own behalf and to communications made on request: the former applies to communicating in a personal (rather than professional) capacity and the latter applies when you respond to a request for input and that communication does not go above and beyond the original request and original purpose of the meeting.
If you have met all of the four previous steps and none of the exemptions of step five apply, then you need to register your activities on the Lobbying Register in Scotland because you are conducting regulated lobbying. If just one of these exemptions applies, then you have not conducted regulated lobbying and do not need to appear on the Lobbying Register in Scotland.
Registration: I have carried out regulated lobbying, how do I register?
The Lobbying Register in Scotland is free to join. The Lobbying Register in Scotland can be found here with the registration tab in the top right-hand corner. This page also contains some useful points to keep in mind when registering such as the fact that the registrant name in a majority of cases (unless you lobby in an individual capacity and in a way not covered by the personal representation exemption) should be the name of your organisation.
Registration: what are the timeframes for registration?
It is important to note that the timeframes differ from both the PRCA Public Affairs and Lobbying Register and the Register of Consultant Lobbyists.
In the first instance, you can register your organisation before or after regulated lobbying takes place: “The Act requires that you register no later than 30 days after your first instance of regulated lobbying occurs. As a minimum, you must submit an information return no later than 2 weeks after the end of each 6 month period after you first engaged in regulated lobbying. In the case of those who ‘pre-registered’ before carrying out regulated lobbying, this date is 6 months from when your organisation applied for registration.” In practical terms - and unlike the two registers referenced above - every registrant will not be updating details at the same time.
Within that period, there is some flexibility as to how you submit information: some members may choose to do after every instance of regulated lobbying, whereas some may prefer to submit the details in bulk near the deadline. If you are registered and did not engage in regulated lobbying at all during a 6 month period, this needs to be recorded and there is a nil return option. Even if you have added details as you go along, you will still need to login when you receive the 6 monthly reminder and confirm that your registration details are up-to-date.
Registration: what details of the regulated lobbying do I need to provide?
When making and submitting an information return (and, therefore, registering regulated lobbying), registrants need to provide:
- The date of the activity from a date selection box;
- The role of the person lobbied from a drop-down list;
- The name of the person (or people) lobbied from a list relevant to that role;
- The location where the person was lobbied;
- A description of the “meeting, event, or other circumstances”;
- Whether that communication was in person or via video conference;
- The name of the individual who made the communication;
- Whether that that communication was undertaken on your own behalf (in-house) or the name of the person/organisation on whose behalf the lobbying was undertaken (consultancy);
- The purpose of the lobbying in an “accurate and meaningful way”.
We have obvious concerns about the clear regulatory burden that members are facing – no other statutory or industry-led transparency regime that members engage with asks for this level of detail. Similarly, the fact that every instance of regulated lobbying needs to be declared means members complying with the Lobbying Register in Scotland must either be prepared to register each instance as it happens or keep detailed records before submitting the details in bulk near the deadline.
Registration: does the register recognise an industry code of conduct?
Yes, members can declare the PRCA Professional Charter and Codes of Conduct. All members are - as ever - regulated by the PRCA Professional Charter and Codes of Conduct: similarly, all members will still be required to submit their information to the PRCA Public Affairs and Lobbying Register.
Registration: is there a statutory code of conduct for those conducting regulated lobbying?
The Lobbying Register in Scotland sets out six ethical principles which must be respected: they do not relate solely to regulated lobbying but to communications of any kind to a member of the Scottish Parliament in relation to the member’s function. The Act requires the Scottish Parliament to publish this code as part of its statutory obligation:
- If lobbying an MSP, you should act with honesty, integrity, and respect;
- If lobbying an MSP, you should not expect preferential access or treatment from that MSP;
- If lobbying an MSP, where appropriate, you should make clear the identity of the person or organisation you are lobbying for and the motives and purpose of that lobbying;
- If lobbying an MSP, you should not offer any payment or benefit in kind which would involve an MSP (or members of their staff) acting as paid advocates on your behalf. Paid advocacy is prohibited by the Interests of Members of the Scottish Parliament Act 2006;
- If lobbying an MSP, you should not knowingly provide information which is untrue, inaccurate, or misleading;
- If lobbying an MSP you should be fully aware of the Code of Conduct for MSPs which requires members to ensure that their staff adhere to the rules and guidelines of the Code, when acting on their behalf or in any parliamentary connection.
Registration: can I register without having conducted regulated lobbying?
The Act clearly allows for voluntary registration if you are not already an active registrant: the Lobbying Register in Scotland will show that you appear on a voluntary – rather than statutory – basis. Information returns work in exactly the same way.
Registration: who is involved in running the Lobbying Register in Scotland?
The Clerk of the Scottish Parliament has delegated the day-to-day running of the Lobbying Register in Scotland to the Lobbying Register Team. They are the people you will engage with when it comes to registration, verification, guidance, and support. These are also the people who could serve organisations with an information notice if an individual reports a failure to register regulated lobbying.
The Commissioner for Ethical Standards in Public Life in Scotland becomes involved if there is need to investigate complaints about alleged breaches.
The Scottish Parliament itself has the power to censure a person if a breach is proven.
The Act includes “criminal offence provisions” and similar penalties (including fines).