New Scottish lobbying laws will reach further than many realise, says expert

The 2016 Lobbying (Scotland) Act will apply to almost all organisations and individuals who interact with elected members of the Scottish parliament (MSPs), special advisers and other senior government officials in the course of their work. Many organisations and the individuals in their employ, who may never have before considered 'lobbying' to be a part of their work, will be captured by the new regime.

Detailed guidance on how the rules will operate will be published soon, and a trial period is expected to begin in the autumn. The new regime is due to be implemented in full during the first quarter of 2018.

Organisations, especially those that liaise with politicians and the government regularly in the course of their business, should now set to work as a matter of urgency to ensure that they have the systems in place to comply with the new regime when it comes into force.

What is lobbying?

Questions are likely to arise about what actually constitutes 'lobbying' as awareness of the new rules grows. Five tests are likely to apply:

• communication must take place with one of the individuals covered by the Act – that is ministers, MSPs, special advisers and the Scottish government's permanent secretary;
• this communication must be made orally, in person or via video conference – telephone calls, email and written communications are not in the scope of the Act;
• the communication must relate to government or parliamentary functions;
• the communication must be undertaken in return for payment. The definition of 'payment' is broad and includes an employee's salary, effectively bringing all paid staff into scope;
• the communication must not be subject to one of a number of exemptions as set out in the Act.

The register

Under the new rules, individuals and organisations such as businesses, charities, trade bodies and professional associations that intend to engage in lobbying activity must register with the Clerk of the Scottish parliament. They will then have to supply the clerk with details of any face-to-face lobbying within 30 days for publication on the register, which will be available for public viewing.

The details that must be supplied for each lobbying activity include:

• the name of the person lobbied;
• the date on which the person was lobbied;
• the location at which the person was lobbied;
• a description of the meeting, event or other circumstances at which the lobbying occurred;
• the name of the individual doing the lobbying;
• the name of the individual on whose behalf the lobbying was undertaken, or a statement that the lobbying was undertaken on the person's own behalf; and
• the purpose of the lobbying.

A maximum penalty of three months imprisonment applies to compliance failures.

Exemptions

Exemptions will excuse a number of categories of contact from the disclosure rules. For example, communications taking place at the premises of the business or the organisation in question, with the relevant constituency MSP (unless the MSP is a minister) will not be registerable.

Similarly, communications made at the request of the MSP or other relevant party do not require a submission to be made. Organisations with fewer than 10 employees are also exempted, unless one of the employee's principal purposes is to represent the interests of other persons. Communications made in relation to terms and conditions of employment are also exempt.

These exemptions aside, the reach of the Act is very large and contains a broad scope, which some questioned and opposed as the lobbying bill passed through parliament.

Andrew Henderson is a public policy expert at Pinsent Masons, the law firm behind Out-Law.com.