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

4. 'WHO' AND 'WHAT' SHOULD BE COVERED BY A REGISTER

4.1. This chapter presents the findings from Questions 5-10 relating to who and what respondents believed should be covered by a register. There were clearly overlaps within and between these issues.

4.2. The findings on 'who' should be covered by a register (i.e. the types of lobbyist) are presented in the first part of this chapter. The findings on 'what' should be covered by a register (i.e. the type of activity) are presented in the second part of this chapter.

Who should be covered by a register

4.3. Questions 5, 6, 9 and 10 focused on 'who' should be covered by a register.

Question 5: Inclusion of consultant and in-house lobbyists

4.4. The key issue identified in the consultation document for exploration at Question 5 was which categories of lobbyist should be required to register. The consultation document (para 16) noted that the Committee had concluded that only organisations that undertake significant lobbying activity should need to register.

4.5. The Scottish Government proposed that the following should be required to register (paras 17 and 18 of the consultation document):

• An individual who is a consultant lobbyist (defined in the consultation document as an individual engaged to lobby MSPs or Scottish Ministers on behalf of another individual or organisation).
• An individual who is an in-house lobbyist (defined in the consultation document as an individual within an organisation who lobbies MSPs or Ministers as part of their work).

4.6. Question 5 asked respondents to express overall agreement or disagreement with the inclusion of both of these categories, as follows:

"Should both consultant lobbyists and in-house lobbyists be required to register? Please provide reasons in support of your response."

Overall views

4.7. Most of the respondents (around four in five) made comments on whether both consultant and in-house lobbyists should be required to register.

4.8. The majority of respondents expressed the view that both consultant and in-house lobbyists should be required to register. This view was stated or implied by a large majority (around four in five) of those who expressed a clear view, and over half of all respondents. Under a fifth of those who expressed a clear view, and around one in eight of all respondents stated or implied disagreement with this. Around a third of respondents did not express clear agreement or disagreement, or did not address the question. Although there was a low level of disagreement overall, there were more mixed views among Trade Association / membership group respondents than other categories.

4.9. Many respondents made additional comments, most of which focused on the benefits of including both types of lobbyist. Several respondents, however, also raised issues or concerns. Many of these were not about whether or not both types of lobbyist should be included, but were about definitional issues.

4.10. Some respondents expressed a general view that this question was linked to the decision about the onus to register (and that in-house lobbyists would be covered by organisational registration) or argued specifically that all sectors should be included.

Benefits of inclusion of consultant and in-house lobbyists

4.11. Many respondents made comments on the perceived benefits of, or reasons for, including both consultant and in-house lobbyists. Common themes were the need for transparency (giving a more comprehensive picture of those involved) and fairness (parity, equality, consistency and a "level playing field"). Other comments included that: without including both there would be a two tier system; there was often little distinction between the two types of lobbyist or their activities; and it was necessary to include both to prevent loopholes and confusion.

4.12. Several respondents made specific comments about the need for, or benefits of, including in-house lobbyists. These were:

• The high level of in-house lobbying being carried out by a range of diverse organisations.
• The importance of the work of Third Sector organisations in influencing public policy.
• The role of lobbying in achieving charitable purposes.
• Lessons from problems experienced with the exclusion of in-house lobbyists from the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 and the UK lobbying register.
• Potential discrimination against organisations without the resources to employ in-house lobbying staff.

Issues or concerns with the inclusion of both consultant and in-house lobbyists

4.13. Some issues and concerns were also raised about including both consultant and in-house lobbyists (largely, but not only, by respondents who did not support this).

4.14. A small number of respondents, for example, expressed a specific view that registration should be limited to consultant lobbyists. Among the suggested benefits of this were that it would be more proportionate and would avoid an unnecessary burden upon organisations. A few respondents argued that including both types of lobbyist did not reflect the purpose of the register (to prevent undue influence by third party lobbyists, and to identify those lobbying on behalf of a range of clients). A small number of respondents argued that it was already apparent who was represented by in-house lobbyists.

4.15. As noted above (para 4.9), some more general concerns were also raised about definitional issues (including by some respondents who agreed with covering both types of lobbyist).

4.16. Many of these comments focused on what was meant by "in-house" lobbyists, and those who lobby "as part of their work". It was suggested, for example, that this was too vague, and that, while it may be clear for those in public affairs roles, it was less clear for others. There were also concerns (as noted in responses to Question 4) about the number of people whose roles may potentially be covered by this. There were a number of related concerns about types of activity which may be included, and the range of staff that may be involved. (Issues relating to the types of activities for inclusion are discussed at Question 8.)

4.17. Some specific concerns and / or questions were raised about whether particular roles would be included as "in-house" lobbyists or those who lobby "as part of their work", such as:

• Elected members of local authorities acting on a constituent's behalf.
• Local authority staff and other government officials.
• Technical experts and subject specialists (e.g. who may accompany a lobbyist).
• Events management staff or teams who may arrange some events for, or involving MSPs.
• Staff in Third Sector organisations and consultants collating comments from others and / or submitting comments to public bodies.
• Members of a trade body, Trade Union or professional organisation attending meetings or events as part of that organisation's business.
• Staff whose main role was not to lobby, but who may be involved, as part of their work (and sometimes a small part), in activities that might be considered to constitute lobbying. (See Question 8 below.)

4.18. A few respondents argued that some of those who would be included may not consider themselves lobbyists, and may be unaware of the requirement to register. One argued that the proposal would not bring clarity in terms of current lobbying activity by organisations that were not professional lobbying organisations, given the variation in the level of contact between them and Parliamentarians at different times (reflecting particular policy developments relevant to them). Another argued that consultant, freelance or agency lobbyists may have many clients seeking different outcomes.

Suggestions relating to the inclusion of consultant and in-house lobbyists

4.19. A common suggestion was a need for a clearer definition of a lobbyist (linked, for some respondents, to a perceived need for a robust definition of lobbying activity). One respondent suggested generally that there should be a more nuanced approach to different organisations.

4.20. A small number of respondents stated that they envisaged a two-stage registration process (which involved registering as a lobbyist, then registering activity), although they argued that this was unclear. As such, they suggested that all lobbyists would be required to register, but only to register the activity when this took place. One respondent argued that all references to "commercial lobbyists" should be replaced with references to "lobbyists", to remove any false distinction between types of lobbying or types of employees.

4.21. Other specific suggestions (made by small numbers of respondents in each case) included a perceived need for a register to cover:

• Organisations that included commercial lobbyists.
• Those (individuals or organisations) with the sole purpose of campaigning or lobbying.
• Those taking part in clearly defined lobbying activity.

4.22. The issue of whether or not to include paid lobbyists is discussed at Question 9.

4.23. One respondent argued that the definition must ensure that some lobbyists were not excluded, and that there were not disproportionate registration requirements (e.g. on Third Sector organisations). A few identified specific types of organisations whose in-house lobbyists they believed should be covered, citing, for example: businesses; business groups; Trade Associations; Trade Unions; Third Sector and civil society organisations; umbrella organisations; legal firms; accountancy firms; management consultancies; and "think tanks". A small number of respondents stated specifically that they would seek assurance that client confidentiality would not preclude full declaration by those in the legal and accountancy fields.

4.24. One respondent provided details of the Australian model and definition of a lobbyist, and suggested a specific exemption for in-house lobbyists (in accordance with the Australian and UK approaches). Another suggested that there should be consistency with existing UK Government provision. A further respondent suggested that voluntary registration should be offered to in-house lobbyists in the first instance, with the potential to make this a requirement if this was necessary in the future.

4.25. Views on whether or not there should be any exemptions are discussed at Question 6 below. Some comments were also made about the types of information that lobbyists should be required to provide. This is discussed at Question 11.)

Question 6: Possible exemptions

4.26. Question 6 explored respondents' views on whether any type of in-house lobbyist should be exempt from registration. The Scottish Government did not make any proposals, but invited views on whether there was a case for exempting particular types of in-house lobbying (e.g. that undertaken by charities or Trade Unions) (para 21 of the consultation document).

4.27. Question 6 was an open question, which asked:

"Should any types of in-house lobbyist be exempt from registration? Please provide reasons in support of your response."

Overall views

4.28. Almost all respondents (around nine in ten) made comments on whether any types of in-house lobbyist should be exempt from registration.

4.29. The most commonly expressed view was that there should not be any types of in-house lobbyist exempt from registration. This view was stated or implied by approaching two thirds of those who expressed a clear view, and almost half of all respondents. Around a third of those who expressed a clear view, and around a quarter of respondents overall, stated or implied that there should be some exemptions. Just over a quarter of all respondents did not express a clear view, or did not address the question.

4.30. There were some variations in overall views on this issue 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).

4.31. Several respondents expressed the view that this question was closely linked to whether the onus for registration should be upon the organisation or individual (Question 4); definitional issues (Question 5); the distinction between voluntary and paid lobbying (Question 9) and the nature of lobbying activity (Question 8).

Benefits of no exemptions

4.32. The most common theme for additional comments was the benefits of, or reasons for having no types of in-house lobbyist exempt from registration. Some respondents, for example, expressed the general view that the register should apply to all (with a few suggesting other qualifications, such as the receipt of payment, level of involvement or type of activity). A few respondents argued that there was no evidence to support exempting some, but not others from registration. Many stated that there was a need for a "level playing field", or argued that exemptions may lead to inequality, unfairness and concerns about impartiality.

4.33. A small number of respondents expressed concerns that having exemptions would imply that there were "good" and "bad" lobbying or lobbyists and / or that the work of one "type" of lobbyist was more influential, useful or legitimate than another. It was argued that this could create a "two-tier" system. It was also argued that exemptions could provide a loophole for those wishing to hide lobbying activity, and could lead to anomalies, definitional problems and confusion. Several respondents stated that exemptions would not provide transparency and could be misleading. One stated that exemptions could reduce the range of voices in a debate.

4.34. The possibility of making charities and Trade Unions exempt was mentioned specifically in the consultation document, and several respondents expressed views about the need to include them. Some of the benefits of, or reasons for including charities (and the Third Sector more generally) and Trade Unions were seen to be:

• A lack of rationale for their exemption.
• The importance of their role.
• The level of power and resources in some organisations in these categories, and the high level of their lobbying activity.
• The receipt, by some, of significant public funding.
• The nature of some of the activity (e.g. as similar to that of other organisations with in-house lobbyists).
• The potential, with their exemption, for only lobbying carried out on behalf of one "side" of an issue to be visible.

4.35. Some specific comments were made about a need to include Third Sector organisations. For example, it was suggested that:

• Some lobbied for financial support for their own organisations.
• Lobbying may be in keeping with charitable aims and objectives.
• Lobbying may be on contentious issues.
• Different Third Sector organisations may have opposing views or purposes.
• Small charitable organisations could be influenced by larger non-charitable ones providing funding.
• There needs to be public trust in the sector.

Benefits of exemptions

4.36. Several respondents (generally but not only those in favour of exemptions) made comments on benefits of, or reasons for, exemption of some types of in-house lobbyist.

4.37. Some comments were made, particularly by Third Sector respondents on perceived benefits of exempting, or reasons to exempt, Third Sector organisations. These included:

• Existing regulation of charities by the Office of the Scottish Charity Regulator (OSCR).
• Existing publication of materials (e.g. annual reports).
• Existing accountability (e.g. to funders, members etc.).
• The nature and purpose of activity that may be included as lobbying (e.g. representing specific interests; and / or being for public benefit rather than private gain).
• The non-political nature of organisations.

4.38. Some respondents (particularly from the Trade Associations / membership groups; and Trade Unions / professional organisations) made comments on perceived benefits of exempting, or reasons to exempt, Trade Associations and / or Trade Unions. These included:

• The basis of Trade Associations' income (as derived from membership and publicly available).
• The nature and purpose of activity that may be included as lobbying (as often incidental to general activity and representing what is perceived to be an industry / public interest).
• The lack of structure for Trade Associations to undertake lobbying on behalf of a specific third party client.
• Existing transparency of who was represented, and a lack of public or media concern about activities.

4.39. One respondent commented on the possible exemption of local authorities, stating that communications between officers and elected members and MSPs / Ministers already fell within the Freedom of Information (FOI) scheme, making an additional regime unnecessary. Another argued specifically that Credit Unions should be exempt, as it was clear on whose behalf they were acting, and their lobbying activity had no commercial motive (with their priority being to help deliver a broader social benefit).

4.40. A few respondents made more general comments, such as the need for a proportionate solution which would not impose a burden on some types of organisation, or the need to avoid deterring their engagement.

Suggestions about exemptions

4.41. Several respondents made specific suggestions about the basis of exemptions. Small numbers in each case suggested that exemptions should include: Third Sector organisations (including, but not limited to, charities); Trade Associations; Trade Unions; membership organisations; local authorities (elected members and staff); NDPBs; think tanks; and those representing a known business sector / organisation. One respondent stated that it was not clear whether an exemption for charities would cover any wholly-owned subsidiaries.

4.42. As noted previously (Question 5), some respondents believed that registration should not include in-house lobbyists. Suggestions were also made relating to exemptions based on the nature of activity (discussed at Question 8) or on the level of involvement in lobbying (discussed at the end of this section). Other suggestions included to:

• Ensure that registration was proportionate and not burdensome.
• Include some flexibility in the system.
• Exempt some lobbyists from some reporting requirements.
• Acknowledge differences between Third Sector, Trade Association and private sector lobbying.
• Include exemptions in any review process.

Question 9: Registration of paid lobbyists

4.43. The key issue identified in the consultation document for exploration at Question 9 was whether minor, infrequent lobbying activity should be covered by a statutory register.

4.44. The Scottish Government stated its view that only lobbying activity undertaken by those paid to do so (and not lobbying on behalf of others by individuals who are volunteers) should be captured (paras 36 and 37 of the consultation document).

4.45. Question 9 asked respondents to agree or disagree with a requirement for paid lobbyists to register, as follows:

"Do you agree with the Government's view that paid lobbyists should be required to register? Please provide reasons in support of your response."

Overall views

4.46. Almost all of the respondents (around nine in ten) made comments about whether paid lobbyists should be required to register.

4.47. The majority of respondents expressed agreement that paid lobbyists should be required to register. Almost all of those who stated or implied a clear view, and approaching two thirds of respondents overall, expressed agreement that they should. It became clear, however, on examination of the additional comments, that there were differences in the interpretation of this question. It was evident that there was a high level of agreement that all paid lobbyists should be required to register.

4.48. There appeared, however, to be mixed views on whether only paid lobbyists should be required to register, or whether paid and other lobbyists should be required to register. As the question did not explore this issue specifically, it was difficult to determine the overall balance of views on this issue, but most of those who addressed this question did express a view of this issue. Among these, there appeared to be a fairly even split between those who expressed the view that only paid lobbyists should be required to register, and those who expressed the view that paid and other lobbyists should be required to register.

4.49. The ambiguity in the question, however, made it inappropriate to determine the overall level of support for requiring only paid lobbyists to register. It also made the analysis of any pattern by category of respondent inappropriate.

4.50. Where additional comments were made, these reflected the different interpretations of the question, with comments made about the benefits of including, variously: paid lobbyists; only paid lobbyists, and unpaid lobbyists along with paid lobbyists. Some grey areas and definitional issues relating to these issues were also highlighted and are discussed below.

Benefits of the inclusion of paid lobbyists

4.51. Some comments focused on the need to include all paid lobbyists (whether or not others should be included). Views were reiterated, for example, that both consultant and in-house lobbyists should be covered (as discussed in detail at Question 5) for the types of reasons identified previously. A few respondents also expressed concerns about this (again, as noted previously).

Benefits of inclusion of only paid lobbyists

4.52. Comments suggested that many respondents favoured including only paid lobbyists. This view was expressed specifically by just under a third of those who responded to Question 9. The problems of using this figure to determine the overall level of support for such an approach, however (as highlighted in para 4.49), should be borne in mind.

4.53. The perceived benefits of, or reasons for, the inclusion of only paid lobbyists were:

• Being able to exclude particular types of people carrying out lobbying activity (e.g. Board members; Trustees; members of a membership organisation; secretariat of a membership organisation; volunteers and individuals).
• Avoiding placing a burden on volunteers and / or discouraging engagement.
• Providing consistency with the core principles.

4.54. One respondent argued that volunteers' involvement would be small and infrequent (and issues relating to the use of a "threshold" are discussed later).

Benefits of inclusion of unpaid lobbyists

4.55. Comments suggested that many respondents favoured including some unpaid lobbyists alongside paid lobbyists. This view was expressed specifically by just over a third of those who responded to Question 9 (but, again, the problems highlighted at para 4.49 should be borne in mind).

4.56. The benefits of, and reasons for, this view focused on perceived problems with including only paid lobbyists. It was argued that this may lead to:

• Unfairness and inequality, and the creation of a two-tier system.
• Limited transparency and the avoidance of registration.
• Lack of identification of the lobbying function of particular individuals and groups (e.g. Board members and Trustees; lobbyists doing "pro bono" work; organised campaign groups).
• Provision of a misleading picture of the balance of lobbying resources, activity and influence, and of the engagement and conduct of MSPs in relation to a particular issue.
• The use of individuals or groups to lobby (instead of more formal means).

4.57. Several respondents mentioned that volunteers (and volunteer campaign groups) could have an important and effective role in lobbying, as well as having significant influence. Examples were given of organisations having (sometimes full-time) volunteers carrying out lobbying activity, and well-resourced and active volunteers at a national level.

Definitional issues and "grey areas"

4.58. Several respondents raised issues and concerns relating to "grey areas" and the potential for loopholes or confusion about who would be covered by the concept of voluntary lobbying on behalf of others. Specific examples included:

• Members (elected and other) lobbying on behalf of a membership organisation in a voluntary capacity.
• Nominally remunerated activists in a campaign group.
• Board Members, Trustees (and other volunteers in governance positions or office holders) carrying out lobbying on behalf of the organisation.
• Interns.
• Groups of citizens being co-ordinated by a professional / paid lobbyist.
• Groups of volunteers accompanying a member of paid staff or consultant lobbyist.
• Individuals nominated by their community or community of interest.
• Organisations recruiting volunteers to engage with Ministers, MSPs and civil servants, or unpaid individuals having the encouragement and resources of an organisation.
• Paid lobbyists and advocates in full-time employment who voluntarily join a group in a voluntary / personal capacity, where that group has similar policy aims to their employer.
• Pro bono work, where a professional gives their lobbying work free of charge, but is paid for providing another service.

Suggestions relating to the inclusion of paid and / or unpaid lobbyists

4.59. Several respondents made additional suggestions. It was argued, for example, that there should be a clear definition of the coverage of the proposals, a specific definition of volunteers, and clarity of why volunteers should not be required to register. Some respondents made specific suggestions about types of lobbyist they believed should be included or exempted, reflecting the issues raised above.

4.60. Several respondents commented specifically on the need to exclude individuals lobbying on their own behalf (or, as one respondent stated, on behalf of their friends, family and community) or engaging with MSPs as part of their constituency work. One respondent suggested making a specific distinction between individuals or groups who engage on their own behalf on a single issue, and volunteers who lobby on behalf of an organisation, with the latter required to register. A small number of respondents suggested exempting only engagement between a constituent and their own MSP, or an individual making representation solely on their own behalf. One respondent suggested exempting constituents lobbying their MSPs through letters and petitions as part of a campaign.

4.61. A few respondents offered a definition of a lobbyist which made reference to their being paid (and some referred, for example, to the overall purpose and / or nature of their lobbying role and activity, and receipt of specific payment for this).

4.62. A number of additional, more general suggestions were made, including to:

• Require registration by organisations, to cover the involvement of relevant volunteers.
• Require "campaign-led" registration where individual volunteers worked together.
• Publish details of MSPs' and Ministers' meetings (noted previously).
• Include consideration of whether volunteers should be included or excluded, and the impact of this, as part of the review process.
• Address directly the issue of lobbying power and the resources devoted to influencing policy, and questions of transparency of resources and finance (see Question 11).
• Consider whether "lobbying activity" or transparency of who was represented (rather than "lobbyists" or employment status) should form the basis of registration.

Question 10: Voluntary registration

4.63. The key issue identified in the consultation document for exploration at Question 10 was whether the register should also allow for voluntary registration. The consultation document noted that the Committee had heard from organisations which were keen to publicise their work (para 41). The Scottish Government expressed its support for the principle of voluntary registration.

4.64. Question 10 asked respondents to express overall agreement or disagreement with the register allowing for this, as follows:

"Do you agree that the register should also allow for voluntary registration by lobbyists not required to register? Please provide reasons in support of your response."

Overall views

4.65. Around three quarters of respondents addressed this question.

4.66. The majority of respondents expressed agreement that the register should allow for voluntary registration by lobbyists not required to register. Almost all (around nine in ten) of those who expressed a clear view, and over half of all respondents stated or implied agreement with this. A small number stated or implied that they did not agree with this (with no pattern by category). More than a third of respondents either did not express a clear view, or did not address the question.

4.67. Most of the additional comments focused on the benefits of allowing this, although several respondents also identified issues and concerns, and a small number identified a need for further detail on other aspects of the proposals prior to addressing this question. A few respondents qualified their overall view (e.g. by suggesting that: most lobbyists would already be covered by a registration requirement, but this should be the case if there were exemptions; or that this should supplement mandatory registration requirements and information provision).

Benefits of allowing voluntary registration

4.68. Many respondents identified perceived benefits of, or reasons for, allowing voluntary registration. The most common related to promoting increased transparency and providing a more complete picture of lobbying.

4.69. Other benefits identified included to:

• Enable registration by those not currently involved in lobbying activity, but who may be in the future.
• Provide an indication of probity.
• Drive up standards in the industry and decrease risks for clients.
• Enable registration by individuals who may be uncertain about whether they needed to do so, or whether actions would be included.
• Help protect the integrity and reputation of organisations and / or individuals and increase public confidence.
• Avoid a disproportionate duty on small groups and individuals.
• Avoid exclusions.
• Enable organisations to publicise their activity and increase their recognition.
• Demonstrate the possibility of a more expansive register in the future.

Issues and concerns

4.70. The most common issues and concerns (identified by respondents with differing types of overall views on this aspect of the proposal) related to the lack of perceived need for this provision (e.g. if the register covered all lobbyists and did not include thresholds).

4.71. Other issues and concerns included a risk of:

• Creating two simultaneous definitions of a lobbyist and inconsistent approaches which may devalue the register.
• Suggesting legitimacy, standards and approval for those who registered, which would be beyond the scope of the register.
• Cutting across the work of voluntary regimes to promote professional standards, and lowering standards.
• Complicating the register, leading to less transparency and to inconsistency with the core principles.
• Creating pressure on others to register.
• Developing a culture of "one-upmanship" and the potential for embellishment of activity.

4.72. One respondent argued that the usefulness of the register would depend on only relevant information being included. Another stated that it seemed inappropriate that a statutory register, with sanctions for non-compliance, should also serve as a voluntary scheme and a platform for publicising activity.

4.73. A few respondents stated that there should be a clear definition which would capture all of those required to register. One stated that there should be no ambiguity about the nature of the register (e.g. either as a scheme of voluntary declarations, or a compulsory, statutory register with sanctions). Another respondent argued that the focus of concern should be with those organisations which were carrying out lobbying but were not committed to voluntary disclosure.

Suggestions relating to voluntary registration

4.74. A few respondents made specific suggestions about what should be permitted with, or in addition to, voluntary registration. These included to be able to:

• Update entries more frequently than required.
• Provide more information that required.

4.75. One respondent stated that a register in Scotland should not go beyond the UK provision already operating (suggesting, if possible, a single UK register).

What should be covered by a register

4.76. Questions 7 and 8 focused on 'what' should be covered by a register.

4.77. It should be noted that, although there was not a specific question about whether or not minor, infrequent lobbying should be included in the coverage of the register, the consultation document made reference to this issue in the narrative at Question 9. Comments on this issue (which were made by several respondents at various points) have been presented below (after the presentation of the findings on Question 8), as these also relate to respondents' views on 'what' should be covered by a register.

Question 7: Inclusion of lobbying of MSPs and Scottish Ministers

4.78. The key issue identified in the consultation document for exploration at Question 7 was whether a statutory register should cover the lobbying of MSPs and Ministers. The consultation document noted that the Committee had concluded that the register should cover the lobbying of MSPs. It also encouraged the Scottish Government to include the lobbying of Ministers. The Scottish Government expressed the view that covering the lobbying of MSPs and Ministers equally was a sensible approach that seemed proportionate (para 24 of the consultation document).

4.79. Question 7 asked respondents to express overall agreement or disagreement with this approach, as follows:

"Do you agree that the register should cover the lobbying of MSPs and Ministers?" Please provide reasons in support of your response."

Overall views

4.80. Most respondents (around four in five) addressed this issue.

4.81. The majority of respondents expressed agreement that the register should cover the lobbying of MSPs and Scottish Ministers. Almost all of those who expressed a clear view (around nine in ten) and around two thirds of all respondents stated or implied agreement with this. A small number expressed or implied disagreement (with no identifiable pattern by type). Around a third of all respondents did not express clear agreement or disagreement, or did not address the question.

4.82. Most of the additional comments focused on benefits of this, or reasons to include the lobbying of both MSPs and Ministers, although several respondents also identified issues and concerns with this. Additional suggestions were also common, particularly in relation to the inclusion of lobbying of others.

Benefits of the inclusion of lobbying of MSPs and Scottish Ministers

4.83. Many respondents made additional comments about the benefits of including, or reasons to include the lobbying of both MSPs and Ministers. The most common theme was that this would enable and increase transparency, clarity and openness (with the related argument that the omission of Ministers, for example, could undermine this).

4.84. Additional perceived benefits of covering the lobbying of both MSPs and Ministers included to:

• Cover all engagement with national elected representatives.
• Reflect accurately the nature of policy and law making in Scotland.
• Avoid the creation of a grey area, errors of interpretation, inconsistency, or a competing register.
• Avoid encouraging organisations to change their lobbying practice to focus on those not covered.
• Recognise the overlaps and differences in the roles of MSPs and Ministers.
• Avoid undermining the purpose of the register.
• Avoid perceived problems with the UK legislation.

Issues and concerns with the inclusion of lobbying of MSPs and Scottish Ministers

4.85. Several respondents (some of whom agreed that both MSPs and Ministers should be included) identified issues and concerns with this. These focused on potential benefits of including only one group.

4.86. Views expressed about the benefits of, or reasons for, including MSPs rather than Ministers were that:

• All Ministerial activity would be captured anyway.
• Public information was already provided on Ministerial meetings, with a risk of duplication (although a few respondents noted that this was out of date).
• The existing Ministerial Code already covered this.

4.87. Views expressed about the benefits of, or reasons for, including Ministers rather than MSPs were that:

• Contact with Ministers would be of the most public interest.
• Scotland had not experienced the same problem as the UK, where high profile backbenchers provided freelance services to firms and third parties.
• Including MSPs could be detrimental to their constituency work.
• There should be consistency with UK Government provision (which reports on Government Minister or Permanent Secretary contact).

Suggestions relating to the inclusion of lobbying of MSPs and Scottish Ministers

4.88. Many respondents made additional suggestions, most of which focused on the need to include lobbying of others (along with MSPs, Ministers or both). The most common additional comments, made by several respondents in each case, were that coverage should include the lobbying of Special Advisers and Civil Servants (or, in the view of some respondents, senior Civil Servants). Among the suggested benefits of, or reasons for this were:

• Their significant role in policy and legislation.
• Their involvement as common "targets" of lobbying.
• The provision of a complete picture and greater transparency.

4.89. One respondent stated that they would want reassurance that this would not affect their ability to share information with Civil Servants, nor other informal correspondence and partnership working.

4.90. Additional suggestions for inclusion were the lobbying of:

• Other public officials, or specifically Scottish Parliament and Scottish Government officials.
• Local government elected members.
• Regulators / officials in NDPBs or agencies.
• The Scottish Permanent Secretary.

4.91. Some respondents made more general comments, such as the need to include anyone with the potential to influence decision making, policy and legislation, although a small number of respondents argued that such a requirement could impose a burden. One respondent stated specifically that they believed a register should be limited to engagement with elected national politicians.

4.92. One respondent offered a definition of lobbying which they suggested would cover the "influencing" of government, which included central, devolved and local government; members of staff of the legislature; Ministers and officials; and public authorities. Another respondent stated that, although wider than the scope of the UK's current system, an extension of coverage should not cause confusion, and may potentially raise standards in the rest of the UK.

4.93. A small number of additional suggestions were made. A few respondents reiterated the need to avoid impeding access, while one suggested a specific need for the implementation of World Health Organisation guidance relating to transparency. A small number suggested that the focus should be on lobbying activity and its purpose (discussed below), rather than its targets. A few reiterated their view that MSPs and Ministers should have a role in promoting transparency.

Question 8: Types of communication

4.94. The key issue identified in the consultation document for exploration at Question 8 was what types of communication should be covered by a statutory register. The consultation document noted that the Committee had suggested that a register should include details of pre-arranged meetings and events rather than all forms of communication between lobbyists and MSPs (para 26 of the consultation document).

4.95. The Scottish Government expressed the view that direct face to face communication should be captured, and stated that this would mean that a lobbyist would be required to register before engaging with an MSP or Minister (in relation to their functions) at a pre-arranged meeting or before meeting the MSP or Minister in any other circumstances. It would require registration before engaging with an MSP or Minister by writing a letter, e-mailing, taking part in a video conference or speaking on the telephone (paras 27 and 28 of the consultation document).

4.96. Question 8 was an open question which asked:

"What types of communication do you think should be covered by a statutory register?"

Overall views

4.97. Almost all respondents (around nine in ten) made comments on the types of communication that should be covered by a statutory register. Many detailed comments were made.

4.98. A majority of respondents who addressed this question, 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.

4.99. There were also many comments on the extension of coverage to include other activities and forms of communication; and many additional suggestions were made.

4.100. A few respondents suggested, more generally, that the number of different types of communication and the different types of individuals involved in such activity made it difficult to clarify what should be covered. One argued that framing the question in terms of "types of communication" rather than activity was restrictive.

4.101. There were many comments about the definition of types of communication and lobbying activity that may be covered by a register, and the overall need to define "lobbying. Most concerns related to the nature of meetings and events and face to face communication, and these are described below.

Inclusion of pre-arranged meetings and events

4.102. Many respondents (and around half of all respondents) made comments that were supportive of the register covering pre-arranged meetings and events. Among these, several expressed the view that these should be the only types of communication to be included. Among the benefits of, or reasons, were that this would be proportionate, simple, workable, balanced and practical. Some respondents, while not stating specifically that these should be the only forms of communication covered, expressed support for their inclusion. One respondent argued that face to face meetings were the type of communication that differentiated a consultant lobbyist from a citizen.

4.103. Many respondents also raised issues or concerns relating to the inclusion of pre-arranged meetings or events. Some of these were general issues or concerns, such as that meetings would already be recorded, and that this might create a burden and / or duplication. Additional comments included that it could be difficult to separate out different forms of communication, and that such an approach could be detrimental to the Third Sector.

4.104. Some respondents' concerns focused on problems with including only these types of communication, and excluding other potentially influential methods. Some stated, for example, that this would be limited or illogical, and may make the register less meaningful. It was also argued that lobbyists may then use other means of communication to avoid registration.

4.105. The most common theme among the issues and concerns, however, was the identification of specific questions, or "grey areas" relating to types of meetings and events and face to face communication that may be included. One respondent suggested a lack of clarity about what was meant by "in any other circumstances" (see para 4.95 above). Some other respondents identified general difficulties in identifying what would be covered by pre-arranged meetings and / or events (or the sorts of meetings or events in which participation would lead to someone being identified as a "lobbyist").

4.106. Many specific questions or concerns about such issues were raised. These included examples of contact with MSPs or Ministers through:

• Participation in social events, receptions and discussion dinners.
• Participation in launch events, conferences, seminars and celebrations.
• Participation in acts of worship attended by MSPs or Ministers.
• Provision of evidence to Parliamentary Committees or Inquiries and preliminary discussions relating to this activity.
• Provision of specialist or technical advice or expert opinion on proposals (e.g. legal guidance and advice, technical expertise).
• Participation in cross-party groups.
• Performance of secretariat functions.
• Participation in corporate events.
• Provision of information to an MSP on a site or organisation visit, or on a fact-finding visit.
• Participation (e.g. as part of an audience, speaker, questioner or panel member) in a meeting or event which had an MSP or Minister as a guest or speaker.
• Attendance at third party events.
• Attendance at events arranged by an MSP or Minister.
• Meetings between lobbyists and their MSPs on personal issues.

4.107. A number of concerns were raised about the potential burden of including a wide range of face to face contacts involving a large number of individuals. Questions were also raised about whether the role of the person requesting or arranging a meeting or event would affect requirements (for example, if it was arranged at the instigation of an MSP or Minister). Some respondents raised questions about who would be required to register the information in different situations, and what would need to be recorded. One respondent questioned whether the obligation to register would extend to engagement which took place outside Scotland.

4.108. A small number of respondents commented on a lack of reference to exemptions, or raised concerns about the inclusion of meetings about sensitive or confidential matters (e.g. competition or investment; workforce issues, or matters for an organisation's members). A few respondents stated that there was not a clear distinction between expressing informed views or imparting information, and lobbying.

4.109. Several respondents made comments on, or expressed concerns about, the reference to "pre-arranged" contact. It was suggested, for example, that this was unclear, and would not lead to transparency and accountability. It was also argued that it could hamper engagement. A few respondents stated that it implied that contact was initiated by the lobbyist, which, it was argued, was often not the case. One respondent stated that meetings could be held with very little notice, and that the matter under discussion may change at the last minute. Another identified that urgent issues may arise. It was also suggested that the proposal could lead to errors of omission.

4.110. A specific grey area was identified in cases where MSPs may "dip in and out" of an event, without pre-registration. One respondent questioned whether MSPs would be required to refer to the register before agreeing to meet with an organisation or individual. They also raised a question of how (and by whom) pre-registration would be monitored.

Extension of coverage

4.111. Many comments were made on the potential extension of coverage of the register, and some respondents, for example, suggested that this should include not only pre-arranged meetings and events, but also other forms of communication or activity. A few expressed the view that all types of communication should be covered, while a few others stated generally that coverage should be extended.

4.112. Several respondents made comments about potential benefits of, or reasons for extension of coverage (whatever their overall view of whether this should be undertaken). These included providing increased transparency, and the need to reflect the range of methods used to lobby. A few respondents suggested that imposing a limit on the communications covered could attract criticism, or lead to the use of other forms of engagement.

4.113. Several respondents commented on particular forms of communication which they considered should be covered. Suggestions were made about including, for example, written communication (e.g. email, letters, briefing documents, position papers, suggested texts of amendments, and text messages). Suggestions were also made about including telephone or video communication, and a few respondents stressed the increasing use of methods such as video and audio conferencing. A small number of respondents commented generally on the increasing use of social media as a means of engaging with Parliamentarians.

4.114. A small number of respondents argued specifically that recording other forms of communication should not impose significant administrative burdens, and one noted that many lobbying organisations already kept a record of these. They also argued that this would help to "future-proof" the register.

4.115. Several respondents identified issues or expressed concerns, however, with extending coverage to other forms of communication. These included that this would: hinder transparency; create a burden (time and cost); and / or be difficult to achieve and impractical. Some respondents stated that some of this information was already publicly available.

Additional suggestions

4.116. Many additional suggestions were made, some of which focused on clarifying the definitional issues and grey areas identified (e.g. what would constitute lobbying activity and pre-arrangement; what would be covered by "other circumstances"; and when registration or recording would be required). Some suggested that there should be a definition of lobbying based on activity or communication, while others suggested a definition based on "influencing". One respondent identified the definition of "lobbying services" used in the UK lobbying register.

4.117. One respondent suggested that a register should focus on areas of policy rather than types of activity. Another suggested that inclusion should be principles-based, rather than specifying all means of communication. A few suggested issues for consideration in identifying activity for inclusion (e.g. that which: was linked to a vested interest; involved "significant" activity; or was consistent with the core principles and / or the purpose of the register).

4.118. Some respondents suggested specific types of communication for exclusion, and some related directly to concerns identified above. Others included:

• Public responses to consultations and / or calls for (or invitations to provide) information or evidence.
• Responses to invitations to tender.
• Administrative requests by lobbyists where there is no attempt to influence.
• Anything done in response to, or compliance with a court order.
• Anything done for the purpose of complying with a requirement under enactment.
• Contract negotiation.
• Making information public through advertising or newspaper articles.

4.119. One respondent suggested that work carried out to assist contact and communications should require registration. Another suggested that, while all forms of communication should trigger registration, not all should be recorded on the register.

4.120. A few suggestions were made relating to registration (by small numbers in each case) including:

• Provision to allow meetings arranged at short notice to be registered retrospectively.
• Provision of a requirement to register soon after, rather than in advance of communication.

4.121. A few respondents suggested providing guidance and / or examples of the types of activity for inclusion. Comments were also made on the types of information which should be recorded, and these are covered in Chapter 5 (Question 11).

The inclusion of minor, infrequent lobbying

4.122. As noted at para 4.77, the consultation document did not ask a specific question to seek respondents' views on whether or not minor, infrequent lobbying should be included in the coverage of the register. The Scottish Government stated that there may be some difficulties with setting a "threshold", but recognised the importance of addressing this issue when constructing a registration regime (paras 33-35 of the consultation document).

4.123. Many respondents made comments on this. These comments focused both on the perceived benefits of having a "threshold" for inclusion in the register, and on issues and concerns with such an approach, with views fairly evenly split.

4.124. It would, however, be inappropriate to take this material as indicative of an overall pattern of views on a "threshold" approach (in the absence of having asked a specific question about this to all respondents).

Benefits of a "threshold" for inclusion

4.125. Where views were expressed, several respondents suggested that a "threshold" could have benefits, or suggested that this should be introduced. Among comments made were that this could:

• Provide a pragmatic approach.
• Help ensure proportionality.
• Provide consistency with the core principles.
• Minimise the impact on small organisations.
• Avoid undue burdens and potential deterrence from engagement.

4.126. A small number of respondents suggested that lobbying expenditure could provide the basis of a threshold. One suggested the use of the number of hours or posts, or the percentage of time spent lobbying as a threshold. Another respondent argued that a threshold would only be reasonable with straightforward and clear registration requirements.

Issues and concerns with a "threshold" for inclusion

4.127. Several respondents raised issues and concerns relating to the use of a threshold. A few stated, for example, that this lacked clarity, including of how it would be measured and monitored. A small number stated that levels of lobbying may vary from year to year, depending on the issues arising. A few others suggested that some "minor infrequent lobbying" could have a significant impact on outcomes.

4.128. Other concerns included that a threshold would:

• Not be workable, and would be difficult to set and regulate.
• Impede transparency (e.g. through the use of vague exceptions).
• Risk a "threshold loophole" and lead to the use of other, less transparent forms of lobbying activity.
• Be unfair and create a two-tier system.

4.129. A small number of additional suggestions were made about the use of a threshold. Most focused on providing more clarity about: the definition of "significant" lobbying; the sort of contact that would be considered regular or frequent; and how (and by whom) this would be measured. One respondent suggested that there could be a strict view of inclusion, but no fee for registration. Another suggested that there should be wide consultation on the level of any threshold.