A Consultation on Proposals for a Lobbying Transparency Bill: Analysis of Written Responses

EXECUTIVE SUMMARY

This report presents the findings of an analysis of written responses to the Scottish Government's consultation on proposals for a lobbying bill. The consultation ran from 29th May 2015 to 24th July 2015.

Background

The Scottish Government is currently proposing the introduction of a register of lobbyists who engage directly with Members of the Scottish Parliament (MSPs) and Scottish Ministers.

The Scottish Parliament's Standards, Procedures and Public Appointments Committee held an inquiry into lobbying, and reported in February 2015. This Scottish Government consultation was carried out to explore the key issues further, and to inform the provisions of a lobbying bill.

A total of 68 written submissions to the consultation were received, of which over a third (26) were from Third Sector organisations and around a fifth (14) from private sector Trade Associations / membership groups. Responses were also received from a number of lobbying industry organisations (9); Trade Unions / professional organisations (7); and campaigning organisations / groups (6). A small number of responses were received from public bodies (3) and other private sector companies (2). One individual submitted a response.

Most respondents offered comments on most questions. Comments commonly stated potential benefits of, and concerns with the issue raised by each question, as well as offering suggestions. The detail of these is contained in the full report, but the main findings are highlighted below.

The basis of a register

The majority of respondents expressed support for three core principles which the Scottish Government suggested should underpin the introduction of any register of lobbyists (Question 1). In summary, these related to the need for a register to: avoid the erosion of the Scottish Parliament's principles of openness, ease of access and accountability; complement existing frameworks; and be proportionate, simple and able to command broad support. Some issues and concerns were identified (e.g. about the overall nature of the principles and their links to the proposals, or wording issues). A number of suggestions were made about additional principles or issues for emphasis.

The majority of respondents expressed agreement with the Scottish Government's proposal that a publicly available register of lobbyists should be introduced in Scotland (Question 2). Most respondents identified benefits of a register. The most commonly identified benefits were that a register could uphold and promote transparency, accountability, public trust and understanding of lobbying. Most respondents also identified some issues and concerns, however, particularly around the lack of evidence of current problems with lobbying in Scotland. Other concerns included a lack of clarity in some aspects of the proposals, and their potential impact. Suggestions included having clear definitions and guidance (relating, for example, to the definition of "lobbyist" and "lobbying activity"; the purpose of a register; obligations; and resource implications); and promoting transparency in other ways (with a role for MSPs and Ministers in this).

The majority of respondents expressed agreement with the Scottish Government's proposal that no fee should be payable by lobbyists for registering or updating the register (Question 3). The most common reasons given for this related to the need to prevent barriers to engagement, and to ensure openness. Few concerns were identified, though a small number were raised about general cost issues for organisations (discussed at Question 19).

The majority of respondents expressed the view that the onus to register should lie with organisations (rather than individuals) who lobby (Question 4). The benefits of this, identified most commonly, related to reducing the level of demand on, and practical difficulties for, those involved. A small number of respondents identified some benefits of placing the onus to register on individuals (e.g. greater transparency; equity; and compliance), but most of the comments related to concerns with this.

Who should be covered by a register

The majority of respondents expressed agreement with the Scottish Government's proposal that both consultant and in-house lobbyists should be required to register. (Question 5.) Transparency and fairness were mentioned frequently among the reasons for, or benefits of, this. Several respondents commented specifically on the need to include in-house lobbyists (e.g. because of the level and importance of their involvement in lobbying). There were some questions raised about what would constitute an "in-house" lobbyist, with a common suggestion that there should be a clearer definition both of a lobbyist and of lobbying activity.

In terms of the possible exemption of some in-house lobbyists, the most commonly expressed view was that there should not be any types of in-house lobbyist exempt from registration (Question 6). Among the reasons for, or benefits of, this were that it would help to ensure a "level playing field" and avoid a "two-tier" system, potential loopholes and confusion. There were some variations in views by type of respondent. Most of the respondents from lobbying industry organisations and campaigning organisations / groups expressed disagreement with exemption of any types of in-house lobbyist. There were more mixed views among Third Sector; Trade Association / membership group; and Trade Union / professional organisation respondents (with these respondents' views, where expressed, fairly evenly split on this issue).

The majority of respondents expressed agreement with the Scottish Government's view that paid lobbyists should be required to register (Question 9). There were more mixed views on whether only paid lobbyists should be required to register, or whether paid and other lobbyists should be required to register. The benefits identified for including only paid lobbyists focused on avoiding a "burden" on volunteers, and being able to exclude them from a need to register. The benefits identified for including paid and other lobbyists focused on issues such as fairness and transparency and the importance of recognising volunteers' role in lobbying. Concerns were raised about what would constitute "voluntary" lobbying, with a suggested need for clarity.

The majority of respondents expressed agreement with the Scottish Government's proposal that the register should allow for voluntary registration by lobbyists not required to register (Question 10). The promotion of increased transparency and provision of a more complete picture of lobbying were the benefits identified most frequently. The most common issue raised was that there would be no need for voluntary registration if the register included all lobbyists.

What should be covered by a register

The majority of respondents expressed agreement with the Scottish Government's view that the register should cover the lobbying of MSPs and Scottish Ministers (Question 7). The most commonly identified benefits were that this would enable transparency, clarity and openness. Some respondents, however, identified reasons for including only MSPs (e.g. that Ministers' activity would be covered already). Some identified reasons for including only Ministers (e.g., that this would be the area of most public interest, and this would be consistent with the UK. It was also argued that there had been no problems with backbenchers' activities in Scotland). Most of the additional suggestions focused on the need to include lobbying of others (most commonly Special Advisers and Civil Servants) in the register's coverage.

A majority of respondents who addressed the question of what types of communication should be covered, and around half of all respondents, made comments that were supportive of a register covering direct face to face communication through pre-arranged meetings and events (Question 8). Among these respondents, several expressed the view that these should be the only types of communication included (e.g. to be proportionate, simple, workable, balanced and practical). Many of the concerns raised focused on "grey areas" about the types of meetings and events and face to face communication that might be included, and the need to define this. There were also many comments on the potential extension of coverage to include other types of activities and communication (e.g. to increase transparency and reflect the range of methods used to lobby).

Although the consultation did not ask a question about whether "minor, infrequent lobbying" should be included in the coverage of the register, comments were made both on the benefits of a "threshold" approach, and issues and concerns with this. Views, where expressed, were found to be relatively evenly split.

Information, reporting and conduct

Respondents' views were sought on the kind of information each lobbyist should be required to provide on registration. Types of information respondents commonly felt should be provided were: information on the lobbyist and / or their organisation or employer; who the lobbying was being undertaken for; the nature of lobbying activities; and financial information (such as the source of funds for, and spend on, lobbying) (Question 11). Suggestions were made about the nature of the information in each case. Some concerns were also raised about the inclusion of some information (relating, for example to: the scale of the task in providing this; or concerns about personal, organisational or client confidentiality).

Respondents' views were sought on the appropriate frequency of returns detailing lobbying activity to a register. There were mixed views and variations by respondent type. A slightly higher proportion of respondents identified benefits of a six month period for returns than for other periods (Question 12). More Third Sector; Trade Associations / membership groups; and Trade Unions / professional organisations favoured six monthly returns than other frequencies. Arguments included that this would be "proportionate" and "balanced". Positive views on three monthly returns were also common and most (but not all) lobbying industry and campaigning organisations / groups appeared to favour this frequency. Arguments included that it would be manageable, accord with other registers and provide up to date information.

The majority of respondents expressed agreement with the Scottish Government's view that Parliament should introduce a Code of Practice for lobbyists (Question 13). The benefits identified most commonly included that this would promote general improvements in lobbying activity and provide guidance and clarity for lobbyists. A small number of respondents identified issues and concerns (e.g. that this: would not be required; may be misused; or may lower standards).

The majority of respondents expressed agreement with the Scottish Government's view that a register should include the facility for lobbyists to indicate if they already subscribed to any industry Codes of Conduct (Question 14). Among the benefits were that this could: allow organisations to display their commitment; support transparency and information-sharing; and increase public confidence in, and awareness of, lobbying. Among a small number of concerns identified were that this was not required and may put pressure on lobbyists to subscribe.

Maintenance, enforcement and changes to the register

There were mixed views on who should have responsibility for upkeep and oversight of the register (Question 15). Opinion was split between those who believed that the Clerks to the Standards, Procedures and Public Appointments Committee should perform this function, and others who preferred an alternative approach. Benefits of the Clerks doing this were that they would be independent, and already had appropriate expertise, while there were also concerns this may not be the case. The most common alternative suggestions about who should be responsible for the upkeep and oversight were the Public Standards Commission and the Commissioner for Ethical Standards in Public Life in Scotland.

Respondents' views were sought on what enforcement mechanisms and sanctions should be available in connection with the registration regime. A slightly larger proportion of respondents made comments on the overall need for, or benefits of, enforcement mechanisms and sanctions than identified concerns with these (Question 16). Arguments about the need for enforcement mechanisms and sanctions included to enable the register to function effectively, ensure compliance and prevent abuse. Several respondents, however, raised specific concerns about criminal sanctions (e.g. as disproportionate; unnecessary; and deterring engagement). Many respondents suggested specific types of sanction for inclusion (e.g. prevention of lobbying; civil sanctions).

Respondents' views were sought on whether the legislation should be flexible to allow the registration regime to be changed in the light of experience. The most commonly expressed view was that Parliament should have, by resolution, the ability to adjust the scope and operation of the registration regime, once established (Question 17). The most common reasons for this related to the potential for issues to emerge post-implementation. A common suggestion was that there should be a process of review following the introduction and operation of registration.

Equality and business impacts

Around a third of respondents (particularly Third Sector respondents) identified a potential impact of the proposals on equalities groups (Question 18).

The most common comments were about a potential negative impact on small community groups and those lacking financial resources (and on the groups they worked with). Concerns were also identified about a potential negative impact on: women; children and young people; community groups which did not have English as their first language; people unable to use some forms of communication; and homeless people. It was argued that these groups may be disadvantaged because they may: have fewer resources to deploy to lobbying; be unsure of their obligations and apprehensive about seeking advice; rely on particular forms of lobbying activity; and be deterred from engagement.

Most respondents made comments about additional costs or other implications for businesses as a result of the proposals (Question 19). A few provided evidence (e.g. reference to a report; or their own calculation of potential costs) to support their views. Where respondents identified a particular impact, the most common was financial (particularly staff time and administration costs).

Some identified a cost impact on specific types of businesses or organisations. These included views that: Third Sector organisations already faced financial constraints; small to medium enterprises may face a greater burden with a low number of staff; and public sector organisations may face an increased number of Freedom of Information requests. Cost implications were also identified for: organisations working across multiple jurisdictions; consultant lobbyists; and the body charged with administering and enforcing the regulations.

Several respondents, however, expressed the view that the proposals would not have additional costs or implications for businesses, or that these would be limited or manageable. A few identified a potential positive impact (e.g. better access to information; better knowledge of activities; and a more transparent political process).