Emma Megaughin outlines what businesses need to know about Scotland's new lobbying register.
If you’re a business, charity or trade body operating in Scotland, a significant change to how your organisation interacts with elected public and government officials is afoot.
The Lobbying (Scotland) Act 2016 (the “Act”) comes into force on Monday (12 March), and with it comes a new Lobbying Register. It will mean that some types of conversation and activities will become known as "regulated lobbying" and will need to be registered on the Lobbying Register. The aim of the Register is to increase transparency around the interplay between politics and business interests - and it is important that organisations get up to speed on its scope quickly, as the penalties for non-compliance are stiff.
So what counts as regulated activity? According to the Act, regulated lobbying includes activity, formal or informal, which takes place face-to-face with members of the Scottish Parliament, special advisers, or the Scottish Government’s Permanent Secretary, and which relates to Scottish Government or parliamentary functions. Any lobbying done at local government level is exempt from the Act.
A five-step test has been developed to determine whether registerable lobbying has been undertaken and organisations that meet the criteria below will need to submit an information return online which will be included on the Lobbying Register:
That means contact by phone, email and text won’t count, nor will it cover volunteers or Trustees who are unpaid. This begs the question - is it the contact with MSPs that needs to be transparent, or the status of the individual making the contact?
There are a number of exemptions within the Act, meaning that certain face-to-face communications, such as those for the purposes of journalism or made by an individual about an issue they are raising on their own behalf, are not classed as ‘regulated lobbying’. 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 also be exempt. However, the big grey area is in regard to the Constituency exemption, which means that communications with any MSP (excluding Scottish Government Ministers) ‘who represents the constituency where I live or where my company/organisation is based or ordinarily operates within’ does not need to be recorded. There will be varying levels of scrutiny different organisations face as a result.
Any organisation which engages in regulated lobbying should use https://www.lobbying.scot/ to register an account on the system. Importantly, organisations who engage in regulated lobbying after the 12 March 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.
With less than a week until the new rules come into effect, organisations who have not made advance preparations should urgently acquaint themselves with the legislation and accompanying guidance and think about a process for ensuring compliance. For example, nominating someone to act as a compliance officer, logging all your engagement and ensuring staff receive any necessary training.
