Lobbying has long been an important mechanism to enable industry to help shape government policy by sharing direct experience and expertise with decision-makers.

With Scotland facing a chronic housing shortage, steep net zero targets, and significant cuts to public funding as a result of the economic crisis, it feels more important than ever for the construction sector’s voice to be heard within the Scottish Government and Scottish Parliament.

However, depending on the type of lobbying being undertaken, an individual or organisation may need to register these activities to avoid falling foul of the Lobbying (Scotland) Act 2016 (“the 2016 Act”).

What is lobbying?

Political lobbying scandals are nothing new, and allegations of corruption and sleaze often go hand-in-hand with the public’s perception of lobbying. However lobbying, when done right, is a perfectly legitimate way to influence the political agenda and to enrich government policy with a wealth of industry knowledge and experience.

The term “lobbying” can cover a vast range of activities, such as engaging with a public consultations, attending conferences and discussing issues directly, as well as communicating with decision-makers face-to-face or via letter, email or telephone.  Anyone can lobby, be it individuals, businesses, interest groups, professional or membership bodies, charities, or professional lobbyists.

Lobbying in Scotland does not require to be registered unless it is constitutes “regulated lobbying” under the 2016 Act.

What is regulated lobbying?

Under the 2016 Act, “regulated lobbying” means a communication made (within or outwith Scotland) by a person:

• orally to an MSP, a member of the Scottish Government, a junior Scottish Minister, a Special Adviser or the Permanent Secretary;
• in person (or via video conferencing facility);
• in relation to government or parliamentary functions (other than excluded communications); and
• in the course of a business activity where the individual makes the communication as an employee, director, office-holder, partner or member.

All of the above criteria must be satisfied in order for the communication to count as “regulated lobbying.”

What is not regulated lobbying?

Excluded communications include:

• those made by an individual on their own behalf, not in return for any payment;
• those made by an individual (as an employee or in another capacity) in the course of the business activities of another person, on that other person’s behalf, to an MSP for the area in which the business is carried on or where that other person lives (Note: this exclusion does not apply if the MSP in question is a Scottish Minister or Junior Minister);
• those made during proceedings of parliament, required by law, for journalistic purposes;
• those made in the course of a meeting of a recognised cross-party group in the Scottish Parliament. or
• in response to a request for factual information or views on a topic from an MSP

None of these activities need to be registered.

Registration and reporting

Since March 2018, if a communication counts as “regulated lobbying”, it must be entered on the Lobbying Register in Scotland, which is a publicly searchable register. Each instance of a communication which counts as “regulated lobbying” must be entered.

Those seeking to engage in regulated lobbying should register online for an account on the Lobbying Register.  They will then have up to six months (plus two weeks) from the date on which they applied for registration to submit what is called an “Information Return” setting out their lobbying activity.  Information Returns must then be made every six months thereafter.

Those who carried out regulated lobbying before registering an account should register urgently and submit an Information Return within 30 days from the first occurrence.

Penalties

It is an offence under s.42 of the 2016 Act to fail to provide an Information Return on time, or to provide information which is materially inaccurate or incomplete, punishable by a fine of up to £1,000.

More seriously though, failure to comply with the requirements to register regulated lobbying activities could result in an investigation by the Commissioner for Ethical Standards in Public Life – with all the reputational consequences that naturally follow.  The Commissioner reports to the Scottish Parliament, which then takes a view on censure.

Actions to take now

Organisations or individuals should take a critical look at their recent or planned lobbying activities and whether they could be classified as regulated lobbying.  If there is any doubt on that point, they should consider registering on the Lobbying Register anyway, but making “nil” returns if they do not carry out any lobbying activity. They should ensure that all lobbying activities are accurately recorded internally and flagged for consideration for registration. If they do register on the Lobbying Register, they should be mindful of the requirement to make information returns every six months (even if these are “nil” returns).

If you have any questions or concerns about lobbying and the regulatory environment, please contact Fiona Killen or Rebecca Roberts in our Public Law & Regulatory team, who will be glad to assist.

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