Scotland’s new Lobbying Register comes into force inMarch 2018, and charity leaders and staff must get to grips with new lobbying rules says Kenny Gray.
For well over 18 months now, the prospect of a new Lobbying Register has caused a degree of trepidation to charities and other organisations which engage with Scottish politicians.
A starting date of 12 March 2018 has been announced for the new regime, and the register is already open for familiarisation, which is welcome.
Much of the publicity and concern around the Lobbying (Scotland) Act 2016 has focused on how the Scottish rules go further than the Westminster lobbying rules, and the possibility of criminal penalties for non-compliance.
Organisations will certainly need to put in place systems and training to make staff and trustees aware of the circumstances in which they will be engaging in “regulated lobbying”, and what conversations they need to report and record.
The new provisions are not an attempt to impose a blanket ban on communicating with MSPs and ministers though, and there are significant permitted exceptions to what requires to be reported – some of which have particular relevance in the charities sector.
The new provisions are not an attempt to impose a blanket ban on communicating with MSPs and ministers
Kenny Gray
What is “regulated lobbying”? – the five key steps
The parliamentary guidance to the new legislation provides a helpful flow chart setting out the five key steps to consider – this is a good starting place to begin getting to grips with the regulations, and will be a useful reference point when considering situations as they arise in practice.
Similarly the Scottish Parliament’s Common Scenarios guidance note also helpfully works through a number of common situations, so again should be a frequent reference point. The number of examples it gives including words ‘It depends on…’ though highlights the challenges here.
Some key points to note:
Oral and face to face communications only - the regulations only apply to oral, face to face communications (including the use of sign language and communication via video conferencing). Telephone calls, emails, letters, tweets and other written communications are not included, which will certainly reduce the reporting burden for most organisations.
MSPs/members of Scottish Government - the rules only apply to oral communication with MSPs, Scottish Government ministers and special advisers or the permanent secretary to the Scottish Government – communication with anyone else, including with the local constituency MSP (unless he/she is also a member of the Scottish Government) is not regulated lobbying.
Informing or influencing – the obligation to report only arises where the opportunity has been taken to inform or seek to influence decisions on behalf of your organisation. So it is still possible to speak to an MSP without having to register the conversation, but careful consideration has to be given to the nature of the discussion, however informal the setting in which the conversation takes place - the Common Scenarios guidance gives the example of someone playing sport regularly with an MSP, and work related matters coming up in casual conversation as part of that potentially being caught. So there are nuanced areas here – informal conversations, speeches or Q&As may constitute lobbying in some instances, and not in others. The Common Scenarios guidance can help on this, but advice may also be necessary.
Small organisations – there are a number of specific exceptions to the lobbying rules (13 to be precise), one of which is to exclude organisations with less than ten full time equivalent employees from the requirement to register conversations. This will be welcome news to smaller charities.
Paid representatives only – regulated lobbying applies only to those who are paid by the organisation they represent. The definition of payment is broad enough to include employees’ salaries, so oral communications by charities’ policy officers and other staff will potentially need to be recorded, as will communications by lobbying agencies. If, however, you are an unpaid charity trustee, board or committee member, or a volunteer, your communications with politicians would not need to be recorded in the Lobbying Register – a significant potential loophole for many charities then.
Even so, in such situations, charities may wish to consider voluntary registration, recording and reporting. The register will be online and free to use, and charities should think beyond the strictly legal requirements and consider reputational issues around transparency.
The recent Paradise Papers scandal serves as a useful reminder that, on occasion, being seen to comply with the spirit of regulation can sometimes be just as important as actual compliance from a reputational perspective.
So, whilst unpaid trustees and other volunteers will retain a free hand to lobby directly without infringing the rules, charities may still wish to introduce policies to encourage (or indeed require) voluntary reporting in order to operate an open book approach to their interactions with the Scottish Government and MSPs.
Once the new rules and requirements have bedded down post-March 2018, it’s likely that charities will come to regard them as a fact of life – possibly inconvenient, but navigable.
In the meantime, there are some new habits to learn here; good advice will help you put the right processes and systems in place to travel on the right side of the line.
Kenny Gray is a partner at Lindsays.
