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

3. THE BASIS OF A REGISTER

3.1. This is the first of five chapters presenting the findings of the consultation analysis. This chapter presents the findings relating to Questions 1-4 of the consultation, covering the basis of a register.

Question 1: Core principles

3.2. Question 1 explored respondents' views on three core principles set out in the consultation document (para 2) which the Scottish Government suggested should underpin the introduction of any register of lobbyists. The Scottish Government stated in the document that these principles had been used to assess the merits of a possible registration regime in Scotland (para 3).

3.3. The three principles identified were:

• That any erosion of the Parliament's principles of openness, ease of access and accountability must be avoided. Reforms should not restrict how stakeholders and members of the public engage in public policy issues.
• That the proposed measures must complement the existing frameworks without compromising their effective operation - for example, the Interest of Members of the Scottish Parliament Act 2006, the Code of Conduct For MSPs, the Ministerial Code and public registers of ministerial meetings. The proposed measures must be clear and transparent in their purpose and operation.
• That the proposed measures must be proportionate, simple in their operation, and able to command broad support within and outwith the Parliament.

3.4. Question 1 asked respondents to express overall agreement or disagreement with these principles, as follows:

"Do you agree that the Government's three core principles are appropriate to inform the delivery of an effective and proportionate lobbying registration regime in Scotland?"

Overall views

3.5. Almost all of the respondents (around nine in ten) made comments on the proposed principles (either at Question 1 and / or elsewhere in their response^[9]).

3.6. The majority of respondents expressed support for these core principles. Almost all of those who expressed a clear view and around two thirds of all respondents stated or implied agreement. Several other respondents expressed partial agreement, while several qualified their agreement (e.g. by suggesting that there should be additional principles; or identifying the need for the principles to reflect the nature and purpose of the current proposals). Only a small number expressed or implied disagreement (with no pattern by category among these). The remainder (around one in five) did not express specific agreement or disagreement, or did not address the question.

Benefits of the core principles

3.7. Many respondents (largely, but not only those supporting the proposed principles) made additional positive comments, either expressing general support for the principles overall, or commenting on specific individual principles.

3.8. Positive comments on the first principle were very common. Specific comments included:

• The value of the current accessibility of MSPs and Scottish Ministers.
• The links between this principle and the Scottish Parliament's principles.
• The need for accountability and integrity.
• The overall benefits of lobbying to the working of Parliament and to decision making.

3.9. Several respondents commented specifically on the need to support, or to avoid eroding, access to engagement for: individuals and members of the public outside the lobbying industry; communities of interest; organisations representing specific groups; smaller organisations; and Third Sector organisations generally.

3.10. Positive comments on the need for "transparency" (referred to in the second principle) were also common. Many respondents stressed the overall importance of transparency, identifying the need for this in parliamentary engagement and public life. Comments were also made about the need for the measures themselves to be clear and transparent. Fewer comments were made on the need for the proposed measures to complement existing frameworks, although a small number of respondents made specific reference to the need for this, and for the need for the register to enhance existing rules and regulations.

3.11. There were many positive comments about the third principle. The main focus of these comments was on the importance of the measures being "proportionate" (e.g. to reflect the scale of lobbying; avoid inappropriate requirements and costs; avoid unnecessary "burden"; and avoid increasing workloads unreasonably). Some Third Sector respondents made specific reference to the need for this in relation to organisations in their sector.

3.12. Several respondents expressed specific support for a simple framework (i.e. one that was straightforward to access; clear; and simple to operate). A few expressed specific agreement that the system should be able to command broad support, and one stated that this should be borne in mind when developing consultation and legislative proposals.

Issues and concerns with the core principles

3.13. Some issues and concerns were also identified with the proposed core principles, including by some respondents who supported the principles overall. Some of these issues and concerns were about general issues, such as respondents' views on whether there was a need for legislation, or whether the proposals themselves were in line with these principles. Some were about a lack of "clarity" of some of the definitions used (a theme raised at other points). All of these issues are discussed at Question 2.

3.14. Other general issues, raised by a small number of respondents included views that: these were not principles, but general factors for consideration; and that they did not successfully define the purpose and impact of the register.

3.15. Few issues and concerns were raised about specific individual principles. A small number of respondents expressed concern about the statement in the first principle that reforms should not restrict how stakeholders and members of the public engage in public policy issues. It was argued, for example, that the principle implied that nothing needed to change (while there may actually be lobbying practices identified that needed to be modified). It was also suggested that the tone of this principle did not reflect the transparency obligations that should apply to professional lobbying (and the need to comply with effective rules and reporting obligations).

3.16. One respondent, in relation to the need for proportionality to reflect the scale of lobbying in Scotland, stated that the Scottish Government was potentially underplaying this. Another stated that proportionality was difficult to define. A further respondent stated that full transparency may prove difficult.

Suggestions relating to the core principles

3.17. A number of suggestions were made about the core principles, by a range of respondents with differing overall views on these. A few, for example, suggested using the five principles of better regulation which have been endorsed by the Scottish Government (i.e. that any regulation should be: transparent; accountable; proportionate; consistent; and targeted where needed). It was suggested that these should be used either instead of, or alongside the core principles. One respondent suggested using a different three core principles (transparency, ethics and fair access).

3.18. Several respondents suggested additional principles, or identified issues for emphasis in setting out the core principles. Suggestions included a commitment to:

• Provision of useful, sufficient and meaningful information.
• Promotion of fairness and equality.
• Promotion of transparency.
• Increasing public confidence and promoting citizens' rights.
• Free registration.
• A register with broad scope.

3.19. Other suggestions included making further reference to:

• The purpose, aims and benefits of the register.
• The value and legitimacy of lobbying.
• The lobbying industry's commitment to transparency and the promotion of high standards.

3.20. A small number of other suggestions were made about the principles. These included, for example, a few suggested changes to the wording of the first principle. One respondent suggested considering the role of voluntary registration schemes and codes of conduct in the context of the second principle. Another suggested a commitment, in the third principle, to having a low burden of compliance.

3.21. One respondent suggested that a shared understanding of the term "proportionate" should be developed. Another suggested the need for promotion of consistency with UK Government requirements, and to build upon current structures.

Question 2: Introduction of a register

3.22. The key issue identified in the consultation document for exploration at Question 2 was whether a register of lobbyists should be created by a lobbying bill. The consultation document (para 5) noted that the Committee had concluded that there should be an online register of significant lobbying activity in Scotland. The Scottish Government proposed that a publicly available register of lobbyists should be established through legislation, and accessible online (para 6 of the consultation document).

3.23. Question 2 asked respondents to express overall agreement or disagreement with the introduction of a publicly available register, as follows:

"Do you agree that a publicly available register of lobbyists should be introduced in Scotland?"

Overall views

3.24. Almost all of the respondents (around nine in ten) made comments on the introduction of a publicly available register of lobbyists in Scotland.

3.25. The majority of respondents expressed agreement that a publicly available register of lobbyists should be introduced in Scotland. Most (over two thirds) of those who expressed a clear view stated or implied agreement, and over half of all respondents did so. Several qualified support for the register with comments about the nature of this (e.g. that it must be "proportionate"; equitable and fair; universal; balanced by other measures; compliant with the core principles; not burdensome; focused on organisations; and covering "lobbying" rather than just "lobbyists". (This distinction was a recurring issue.)

3.26. Approaching a third of those who expressed a clear view, and around a quarter of respondents overall, expressed disagreement, or suggested that this was not their preferred option (although a small number stated that they would support a register, if introduced). Around a fifth of respondents did not express clear overall agreement or disagreement, or did not address the question.

3.27. There were some variations in overall views by type of respondent^[10]. It was found that there was a high level of agreement among lobbying organisations and campaigning organisations / groups that a publicly available register of lobbyists should be introduced in Scotland. A majority of Third Sector respondents also expressed agreement. There were more mixed views among Trade Association / membership groups and Trade Union / professional organisation respondents (although no more than a third of respondents in either category expressed disagreement). The remaining categories were too small for inclusion in this analysis.

3.28. Many additional comments were made, focusing on: perceived benefits of a register; issues and concerns; and additional suggestions.

Benefits of the introduction of a register

3.29. Most of the respondents (particularly, but not only those supporting the introduction of a register) identified benefits of this. The most common were that it could uphold and promote:

• Transparency and accountability (linked to the integrity of the process and perceived requirements of democracy).
• Public trust, confidence, understanding of lobbying, and the right to know about lobbying activity and professionals.

3.30. One Third Sector respondent identified a specific benefit as being about meeting a specific need for transparency in the private sector. Additional benefits, or reasons in support of the need for a register included that it could:

• Address limitations to existing mechanisms for obtaining information (including a lack of updated information about Ministerial engagements).
• Improve standards of professional practice and the quality of lobbying practices.
• Prevent abuse (and the potential for better resourced organisations to have better access to decision makers).
• Address the risks of "revolving door" activities (i.e. where people move from politics to lobbying) and "astroturfing" (i.e. where the sponsors of a message or organisation are masked, to make it seem to come from, and be supported by, grassroots participants).

3.31. A few respondents identified the existence of lobbing registers in other countries and institutions, or the opportunity for Scotland's approach to align with the position in the rest of the UK. A few mentioned the increase in the Scottish Parliament's powers and responsibilities, and a perceived need for scrutiny.

Issues and concerns with the introduction of a register

3.32. Most respondents (including a range of respondents with different overall views) identified some issues and concerns with the introduction of a register.

3.33. The most common issue raised focused on the lack of evidence of current concerns or problems with lobbying in Scotland, or with the behaviour or conduct of professionals and / or organisations. Many respondents made reference to this (including some who supported the proposed register) and a few contrasted this with the position for the UK Government. Comments were also made about the open and transparent approach to engagement currently in Scotland, and to existing measures to promote this (e.g. the publication of Ministers' meetings; the Code of Conduct for MSPs; and voluntary registers).

3.34. A further common issue raised with the introduction of a register was a concern about a perceived lack of clarity in some aspects of the proposals. There were particular concerns about: a lack of clear definition of "lobbyist" and "lobbying activity" (a recurring theme); whether one or both would be the focus of the register; and the interrelationships between them. Detailed concerns about these definitions are discussed further in Chapter 4. Other issues identified as requiring clarity included: the purpose, impact and potential benefits of a register; the means of use of a register; the obligations it would bring; the resource implications; and the responsibility for its enforcement.

3.35. Several respondents expressed concerns about the potential impact of the proposals. Comments included, for example, that: the proposals did not currently reflect the core principles; would not promote greater openness and transparency; or would not necessarily prevent inappropriate practice. One respondent stated that there was a risk of confusion with existing arrangements in the UK. Some respondents raised concerns about the potential burden on organisations (particularly in the Third Sector) or the potential to deter engagement and reduce the quality of decision making. One respondent suggested that it may be difficult to implement, while another argued that no other options (e.g. publishing MSPs' diaries) had been tested. Another stated that having only an online register could discriminate against some organisations.

Suggestions relating to the introduction of a register

3.36. Many respondents made additional suggestions relating to the introduction of a register. These included providing clear and unambiguous definitions of "lobbyist" and "lobbying" and providing information and guidance to address the other issues identified at para 3.34 above. Some respondents also stressed the need for the core principles to be reflected in the nature of the provisions, and to avoid unintended consequences.

3.37. A common suggestion was to promote transparency in other ways (either instead of, or along with, a register). These included continuing to use existing measures, and making additional provisions. The most common suggestions related to ensuring that MSPs and Ministers had a role in promoting transparency. Suggestions included that there should be a requirement, for example, to:

• Declare relevant meetings and engagement (e.g. by making an amendment to the MSPs' Code of Conduct).
• Publish their diaries and relevant minutes and / or reports of meetings regularly.
• Ensure that published information is accurate and up to date.

3.38. Some respondents suggested that senior civil servants and special advisers should also make information available about their official meetings. One suggested having guidance for Ministers, MSPs and relevant staff, to advise them to inform anyone contacting them to arrange a meeting or event about the need to provide details to the register.

3.39. A few comments were made about the nature of the register itself, and the means of providing it. These included that it should be: mandatory; easily available; in an open and accessible format; fully searchable, sortable and downloadable; linked to other publicly available registers; able to be cross-referenced; and able to be shared. A few referred specifically to a need to have not only online provision, but also an option of hard copy information.

3.40. A few respondents from campaigning organisations / groups made additional suggestions about particular issues they considered should be addressed in developing overall transparency. These included having a policy on the "revolving door" issue (mentioned at para 3.30 above). It was also argued that there should be a requirement for a "footprint" of legislative development and policy proposals. This would track internal and external input (either as it happened, or in an annex to documentation). A further suggestion was to consider international practice in promoting transparency in developing the way forward in Scotland.

Question 3: Fees

3.41. The key issue identified in the consultation document for exploration at Question 3 was whether there should be a fee for registration. The consultation document (para 8) noted that the Committee had concluded that registering and updating the register should be free, and the Scottish Government proposed that this should be the case (para 9 of the consultation document).

3.42. Question 3 asked respondents to express overall agreement or disagreement with having no fee, as follows:

"Do you agree that no fee should be payable by lobbyists for registering or updating the register?"

Overall views

3.43. Most of the respondents (more than four in five) made comments on the issue of whether or not there should be a fee payable by lobbyists for registering or updating the register.

3.44. The majority of respondents expressed agreement that no fee should be payable by lobbyists for registering or updating the register. Almost all (around nine in ten) of those who expressed a clear view, and around two thirds of respondents overall stated or implied their agreement with this proposal. There was little disagreement with this.

3.45. A small number of respondents qualified their view (e.g. by stating that they would not be opposed to paying if it led to a more effective register; or that a "no fee" approach would be appropriate for updating information, or for Third Sector organisations). Around a quarter of respondents did not express clear agreement or disagreement, or did not address the question.

Benefits of having no fee

3.46. Most of the additional comments were about the benefits of, or reasons for having no fee for registering or updating the register. The issue raised most frequently was the need to prevent barriers to engagement and to ensure openness.

3.47. Many comments were made about these issues, including that imposing a fee could create such barriers, and deter or restrict participation by some organisations or individuals (e.g. by disadvantaging those facing financial constraints, diverting resources from other work, or complicating the process).

3.48. Some respondents (particularly from the Third Sector; Trade Unions / professional organisations; and Trade Associations / membership groups) identified particular types of organisations that might be deterred from participation by a fee. Those identified included: Third Sector organisations; small organisations; those representing specific groups; and Trade Associations. A small number of respondents also argued that many of those individuals entering the lobbying industry were young, or working part-time, and should not be discouraged.

3.49. It was also suggested that imposing a fee, and the related barriers, would be anti-democratic, detrimental to the Scottish Parliament and against its principles. A few respondents argued that the integrity of, and confidence in the system depended on financial independence from lobbyists. Some stated that a "no fee" approach was linked to keeping the requirements of the register proportionate.

Issues and concerns with having no fee

3.50. A small number of respondents identified issues or concerns relating to cost issues for organisations, rather than to the principle of having no fee per se. These issues are discussed further at Question 19.

3.51. One respondent argued specifically, however, that private organisations should not be subsidised by the public purse, and that responsibility for maintaining standards should fall to those organisations requiring to be on the register.

Suggestions relating to fees and costs

3.52. Several respondents made additional suggestions relating to fees and costs. A few suggested, for example, that, if there were to be registration fees, these should be tiered and linked to factors such as an organisation's financial means and profit. A few suggested that Third Sector and non-profit-making organisations should be exempt from any fees, or that any fees required should be paid by professional and consultant lobbyists only. One respondent stated specifically that they believed the cost of the register could be met from the public purse, and another argued that the register could be self-funding on the basis of cost recovery. One respondent suggested an annual flat fee for all registered organisations, with organisations able to carry their membership across different registration bodies without having to pay duplicate fees.

3.53. Some respondents argued that there would be a need for resources to support the register, including for:

• Maintenance of the register.
• Adherence to its requirements.
• Provision of advice and guidance.
• Monitoring, administration, audit and investigation.
• Enforcement action.

3.54. Some expressed a specific view that the register should have minimal impact on the public purse, and one respondent stated that registration systems in other countries showed that this could be achieved. A few suggested that the costs of operating the proposed system should be reviewed regularly. One respondent stated that a full regulatory impact assessment should be carried out.

Question 4: Onus for registration

3.55. The key issue identified in the consultation document for exploration at Question 4 was whether the onus to register should lie with organisations or individuals. The consultation document (para 13) noted that the Committee considered that responsibility for registering should be placed on organisations involved in lobbying activity. The Scottish Government's preferred approach (also identified in para 13), was that responsibility for registration should be placed on individuals involved in lobbying activity as part of their work.

3.56. Question 4 asked respondents to express a preference between these two options, as follows:

"What are your views on whether the onus to register should lie with individuals who lobby as part of their work, or organisations who lobby? Please provide reasons in support of your response."

Overall views

3.57. Almost all of the respondents (around nine in ten) made comments on this issue.

3.58. The majority of respondents expressed the view that the onus to register should lie with organisations who lobby. This view was stated or implied by a large majority (around four in five) of those who expressed a clear view, and around two thirds of all respondents. A small proportion (under a fifth of those whose views could be ascertained and around 1 in 8 overall) believed that the onus should be either on the individual or on the individual and organisation (with no clear pattern by type among these respondents). Around a quarter of respondents did not express a clear overall view on this issue, or did not address the question.

3.59. Most of the additional comments focused on the perceived benefits of the onus to register lying with organisations (or related issues and concerns with the onus being on individuals). Only a small number of comments focused on perceived benefits of placing the onus on individuals.

3.60. A few respondents made more general comments. These included, for example, views that: the current proposals differed from the Committee's view; there were pros, cons and difficulties with both approaches; the decision about the preferred approach would depend on definitional clarity; and the decision would impact on the scope of the register and the level of resources required. It was also suggested that there should be clear guidance, whatever the decision.

Benefits of placing the onus to register on organisations

3.61. Most of the comments made (largely by those who favoured this approach) focused on the benefits of placing the onus to register on organisations. These included views on positive benefits of this approach, as well as disadvantages and concerns about the alternative (placing the onus to register on individuals).

3.62. The benefits identified most frequently for an approach which put the onus to register on organisations were about reducing the level of demands on, and practical difficulties for, those involved. Linked to this, the main problems with placing the onus to register on individuals were seen to be the high level of demand and practical difficulties this would involve.

3.63. Several respondents commented on the range and number of individuals whose role in organisations may require registration, and the range of roles that some people performed in the course of their work (e.g. in Third Sector organisations). It was suggested that, if the onus to register was on an individual, there could be: multiple registrations in one organisation; multiple members of staff reporting on the same event or meeting; potential for duplication of entries; complexity; and potential confusion. There were also concerns about the bureaucracy, administration, time, resources and staff training that may be involved, and about the potential general "burden". A number of examples were given of those who might be required to register, and some concerns were raised about the definition of who would be covered. These issues are discussed further in Chapter 4.

3.64. It was argued that placing the onus on the organisation would reduce the likelihood of duplication, would be less onerous, and would reduce the burden of administration, time and resources. A few respondents stated specifically that it would also be simpler and more proportionate, including for Third Sector organisations.

3.65. A further common reason for having the onus to register on organisations was the view that individuals (whether lobbying on a commercial or an in-house basis) would generally be representing an organisation's views rather than their own, and working to meet the organisation's objectives. It was also noted that individuals (e.g. in the Third Sector) did not gain personally from lobbying activity.

3.66. A number of other perceived benefits were suggested for the onus being on organisations to register. These included:

• Consistency with industry models, company law and employers' responsibilities.
• Existence of organisational record-keeping, structures and processes.
• Completeness of information and better tracking of activity.
• Greater clarity of the organisations and interests involved in lobbying.
• Improved accountability.
• Promotion of corporate responsibility for compliance and sanctions.
• Protection of individual confidentiality and personal details.

Benefits of placing the onus to register on individuals

3.67. A small number of respondents (not only those who favoured this approach) identified some benefits of placing the onus to register on individuals. It was suggested, for example, that this would:

• Provide a clear picture of lobbying, and greater transparency.
• Provide equity and cover all lobbyists.
• Incentivise lobbyists to be familiar with the regulations, and potentially promote greater compliance.

3.68. One respondent stated that, as corporate registration would have to be based upon an accurate compilation of individuals' activities, there may not be much difference in terms of the compliance burden.

3.69. A small number of respondents identified potential practical difficulties with placing the onus for registration on an organisation which had many individuals who were not necessarily employed, but acting in its name (whose activity may need to be recorded).

Suggestions relating to registration

3.70. Many respondents made additional suggestions about registration. Several, for example, commented on additional provisions that could be made, if organisational registration were to be adopted. These included the suggestion that, where an organisation had to register, those staff involved in lobbying (or, in the view of some respondents, those involved in "significant" lobbying) could be identified. It was argued that this could include identifying in-house or consultant lobbyists, and providing information about their position.

3.71. Some respondents expressed the view that appropriate arrangements should be made for independent lobbyists, and a few stated specifically that self-employed, freelance or consultant lobbyists should be required to register themselves. Detailed comments about who should be included in the register are discussed in the following chapter, and suggestions about the information that respondents believed should be provided are discussed in Chapter 5.

3.72. A few respondents argued that clear and straightforward compliance regimes should be included in an individual's terms of employment and / or in staff training. One respondent argued that organisations should nominate a "responsible person" for compliance.

3.73. A few respondents suggested particular requirements if individual registration were to be adopted, including that:

• Organisations should have some responsibility to ensure that their employees were appropriately registered, or should encourage this.
• It should be possible for electronic disclosures by individuals to be sorted and aggregated, to provide a cumulative picture.
• Organisations should use only registered lobbyists.
• Individuals should not have to register when making representations to their own MSPs.

3.74. Several respondents identified the need for clarity about who would be considered to be a lobbyist, and this is discussed further in Chapter 4.