Lobbying activity is an embedded aspect of political life, but it is an activity that is often viewed with suspicion. With a view to increasing transparency of contacts between organisations and elected political figures Scottish Government has introduced a new regulatory regime for lobbying with the passing of the Lobbying (Scotland) Act 2016. Once the Act comes into force, it will have significant consequences for how businesses and other organisations engage with the Scottish Government and Members of the Scottish Parliament, with strict penalties for non-compliance.
How will the Act affect your business or organisation?
The Act establishes a lobbying register, and businesses should consider whether they are required to subscribe to this and comply with ongoing information provision obligations.
The regime has not yet come into force as the technology required to maintain the register of lobbying activity and monitor compliance is still in the process of being established.
What forms of lobbying are regulated?
The Act seeks to control ‘regulated lobbying’, which captures any communication made in the course of business, or other activity which is made:
- orally, in person or via videoconferencing facilities;
- to an MSP, a Member of the Scottish Government, a junior Scottish Minister, a special adviser or the Permanent Secretary to the Scottish Government;
- and in relation to governmental or parliamentary functions.
What is not regulated?
Certain forms of communications are carved out from the definition of ‘regulated lobbying’. This includes communications by an individual acting:
- on his own behalf and not acting in return for payment;
- on behalf of an organisation, when he is contacting the MSP for the constituency and region where the organisation’s activities are ordinarily carried on, or where the individual is himself resident; or
- on behalf of small organisations with less than ten full-time equivalent employees.
Also carved out from the definition of ‘regulated lobbying’ are:
- communications responding to requests for factual information or views on a particular topic, for example public consultations; and
- communications that form part of, or are directly related to, negotiations on terms and conditions of employment of an organisation’s employees.
Practical steps
Businesses should consider whether they undertake any activity falling within the scope of ‘regulated lobbying’. If your business or organisation is currently undertaking ‘regulated lobbying’, it should register with the Clerk of the Scottish Parliament. If it is not currently undertaking ‘regulated lobbying’ but does so in the future, it must register within 30 days of that instance of regulated lobbying occurring.
A registered business or organisation is required to make information returns every 6 months. These will generally be made public, unless the Clerk considers that it would be inappropriate to do so.
Businesses and organisations who are affected should consider setting up systems in order to avoid any sanctions for non-compliance.
Non-compliance is a criminal offence
The Act creates various statutory criminal offences including:
- failure to register and provide required information;
- giving inaccurate or incomplete information in an application for registration; and
- failing to submit an information return, or including in such a return inaccurate or incomplete information
Criminal liability will lie with directors, partners or managers of a body corporate if that person caused the commission of the offence, either by active participation or through his negligence. Persons found to have committed an offence are liable on summary conviction to a fine not exceeding £1,000.
The penalties for non-compliance (as well as any associated reputational effects) can be severe. Any business or organisation which regularly interacts with or lobbies governmental officials or MSPs should ensure they have appropriate mechanisms in place to avoid falling foul of the legislation.
Should you have any queries about lobbying or concerns about the impact of the new Act, please speak to our Regulation and Markets, team or your usual Shepherd and Wedderburn contact.