Scottish Lobbying: "Haud Yer Wheest"?
Published 10 July 2018
The new Lobbying (Scotland) Act 2016 "the Act" has now been in force for over 3 months. The Act went live on 12 March 2018 with the Scottish parliament declaring their intention to increase openness and transparency with respect to those who seek to influence and inform our political decision makers. Advising and influencing the policy decisions made by our elected representatives is a fundamental part of our democratic process, but how will the Act achieve its objective?
Under Section 1 of the Act any direct (face to face) lobbying of MSPs, the Scottish Ministers, Special Advisers or the Permanent Secretary, which is in relation to Scottish Government or Parliamentary functions, shall now be deemed "Regulated Lobbying". Section 1 is further extended to communications with any of the aforementioned using equipment such as skype, Facetime and any video conferencing which enables individuals to see and hear each other.
Importantly, the Act will capture all contact that might take place in any situation - not just at formal meetings or conferences - even an informal chat over dinner or during a round of golf, i.e. any face to face discussion, comes within the ambit of the Act.
The Lobbying Register
Those engaged in regulated lobbying are required under the Act to register an account with the Lobbying Register team as an active registrant. This must be done within 30 days from the date the first instance of regulated lobbying was conducted. Thereafter, active registrants will be required to submit 'information returns' (IR) to the Lobbying Register team, at least one IR every 6 months, formally recording their lobbying activity on the Register.
IR's must contain information on the following:
- Name of the person lobbied;
- Date and location at which the person was lobbied;
- A description of the meeting or circumstances in which the lobbying occurred;
- The name of the individual who made the communication to the person lobbied; and
- The purpose of the lobbying.
Even if an active registrant has not engaged in regulated lobbying, the Act still requires an IR to be submitted stating the active registrant has not been engaged in regulated lobbying for that respective 6 month period.
There are various exemptions within the statute that preclude recording on the Register. The following exemptions apply, to communications that are:
- Raised by an individual on their own behalf;
- With an MSP who represents the constituency where that person lives or where their company is based;
- From a Company has fewer than 10 full time employees;
- In response to a request for factual views or information ;
- For the purposes of journalism;
- In relation to the negotiation on terms and conditions of employment;
- Made by political parties or members of the judiciary.
Section 42 provides that it is an offence for any person required to register to fail to do so within the respective time period of 30 days, or provide information which is inaccurate or materially incomplete. Further, this section makes it a criminal offence for an active registrant to fail to submit an IR on or before the 6 month period, or submit content which is inaccurate or materially incomplete.
There are 2 layers of regulation to ensure Lobbying compliance: By the Lobbying Register team, who will monitor all registration of active registrants and IR submissions; and by reports or complaints that are received by the Commissioner's Office of Public Affairs. Both have capacity to report persons in breach to the Crown Office and Procurator Fiscal Service recommending a prosecution for failure to discharge those statutory duties which apply to regulated lobbying. So, if you aren't already an active registrant and are inclined to advise or influence those in political power, remember to "haud yer wheest" when face to face and instead draft an email or pick up the telephone.
For legal advice in relation to your obligations under the Lobbying (Scotland) Act 2016 or any potential offences, contact our experienced team of Regulatory solicitors today. We have vast experience in assisting those individuals and corporate bodies faced with allegations and regulatory investigations across all sectors and disciplines.