The regulation of lobbying in Scotland rests on a legislative regime which came into force nearly a decade ago. There is a lack of recognition of the various communication methods used for lobbying activities, which in turn leads to an inconsistent reporting system and a lack of transparency.
This blog discusses some of the ways of strengthening existing lobbying laws, and what could be added to further meaningful transparency.
Regulated lobbying and the Lobbying Register
The Lobbying Act 2016 (‘the 2016 Act’) is the primary instrument which governs lobbying in Scotland. ‘Lobbying’ is defined as an activity which includes an individual having verbal communication with a regulated individual – this can be a member of the Scottish Parliament, a member of the Scottish Government or a junior Scottish minister.
A lobbying register is maintained and it must include information about registrants who have participated in regulated lobbying. Registrants must submit information about their lobbying activities. The lobbying register is publicly accessible.
Key areas to reform
Definition of ‘regulated lobbying’
The first step towards improving how lobbying is regulated in Scotland is to widen the definition of ‘regulated lobbying’. In its current form, the definition covers only communication which has occurred both verbally and face-to-face. This leaves significant loopholes for unregulated lobbying activity which occurs over email and telephone, as well as over video conferencing platforms such as Zoom where the video function is switched off.
Expanding the definition would bring Scottish lobbying law in line with its counterparts across the UK.
In England and Wales, ‘consultant lobbying’ includes all ‘oral and written communications made personally to a Minister of the Crown or permanent secretary.’1 In Northern Ireland, ‘being lobbied’ means to ‘receive personally a communication, either oral or written.’2 In both jurisdictions, all lobbying activity must be recorded. Scotland is the only country in the UK where written and verbal only instances of lobbying activity are not recorded in the Register.
Expanding the definition of regulated lobbying would allow for different means of correspondence to be recorded about the same campaign. An example can be taken from Ireland where it is possible to look at the different types of activity that relate to a specific lobbying campaign or issue that is being raised. This approach could provide a fuller sense of how organisations engage with decision-makers, and it would bring about more meaningful transparency rather than the reporting of individual activities and engagements.
Regulated individuals
In order to ensure full transparency and accountability, it is important to extend rules on recording lobbying activity to include senior civil servants such as directors general. Important routes of influencing policy decisions are not being captured by the register because it is possible to influence policy development at a much lower level. Senior civil servants for example may have significant influence over Scottish ministers and potentially over MSPs, and the 2016 Act fails to recognise this.
Organisations engaging in lobbying senior civil servants do not need to log their activity in the register. However, lobbying individuals in these particular positions may be far more influential and strategically targeted than other activity which must be registered in the lobbying register.
In 2016, civil society organisations gave evidence for a post-legislative scrutiny report on the 2016 Act.3 According to written submissions, those who are at a lower level in the civil service are often lobbied, and can have a significant impact and a significant role in providing policy advice to ministers.
Reporting duties of regulated individuals
At present, all responsibility for transparency falls on external parties such as business and civil society organisations. It is the registrants’ legal duty to report instances of lobbying activity which they have engaged in with the relevant regulated individuals. There are two problems with this. First, the entire financial and administrative burden falls on the registrants. Second, the approach is reliant on registrants reporting on their lobbying activity in good faith. There have been reports in Scotland that not all lobbying activity is recorded and that certain activities which amount to lobbying are omitted from the Register.4
This problem can be resolved if the burden of reporting lobbying activities is extended to all regulated individuals. One way to achieve this is to have regulated individuals publish their calendars and diaries online. Diary details would complement the information on the register and would provide a more complete picture of the meetings between lobbyists and regulated persons.
Recording expenses
Lastly, the recording of expenses needs to be incorporated into the 2016 Act. The mandatory disclosure of expenditure would provide the public with a fuller comprehension of not only individual lobbying activity and campaigns – it would also provide insight into the strategic approaches taken by lobbying firms and by those who hire them.
Lobbying costs have been described as ‘one of the biggest black holes for the transparency of Scottish politics’.5 Accessing this type of information is crucial for the public’s understanding of the level of integration of certain organisations in Scottish politics.
The 2016 Act needs to be revised so that the register includes information on how much registrants are spending on lobbying activity or on lobbying campaigns concerning specific matters. This proposal has the benefit that lobbying costs can be easily recorded, and large corporate bodies would have budgets dedicated to hiring lobbying firms.
Lobbying costs can be reported in different ways. This can be done with a minimum cost threshold (i.e. reporting expenditure only if it is above a certain amount) or by using financial bands instead of reporting exact amounts. These methods are both suitable for use given that smaller organisations normally do not have large expenditures for lobbying. Therefore, they would not be unduly burdened by additional reporting. Adding mandatory recording of gifts and hospitality into the Register would also help provide a full overview of a registrant’s expenditure.
Conclusion
The regulation of lobbying in Scotland needs to be reformed as it does not reflect the extent of influence lobbyists have. The changes proposed in this blog may lead to adding some additional burden on registrants, but there are avenues to limit this as much as practical for smaller organisations.
The purpose of the 2016 Act is to increase public transparency about regulated lobbying. For this to be achieved, there is an urgent need for reform. This must be reflected in both expanding the scope of existing provisions, coupled with adding further obligations.
If you are interested in the themes discussed in this blog, you can sign up to ERCS’s upcoming lobbying webinar on 2 July to learn more.
