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

6. MAINTENANCE, ENFORCEMENT AND CHANGES RELATING TO THE REGISTER

6.1. This chapter presents the findings for Questions 15-17 relating to maintenance and enforcement of, and changes to the register.

Question 15: Upkeep and oversight of the register

6.2. The key issue identified in the consultation document for exploration at Question 15 was who should be responsible for upkeep and oversight of the register. The consultation document (para 58) noted that the Committee had proposed that a Registrar should be responsible for the running of the register and that this should have a very limited impact on the public purse. The document noted that the Committee suggested that the Clerks to the Standards, Procedures and Public Appointments Committee would be a candidate to act as "Registrar", and that the role would include giving prompts and advice on:

• Whether to register.
• What to register.
• When to update the register.

6.3. The Scottish Government expressed agreement that creation, upkeep and oversight of the register should have minimal impact on the public purse and that the Committee's proposals would be considered (para 59 of the consultation document).

6.4. Question 15 was an open question which asked:

"Do you have any views on the Committee's proposals for who should be responsible for upkeep and oversight of the register?"

Overall views

6.5. Around three quarters of respondents made comments on who should be responsible for upkeep and oversight of the register. Some respondents made general comments expressing their agreement that there should be a Registrar, or with the proposed system. Some expressed the specific view that the Registrar should be independent (e.g. of government, industry, and, in the view of some respondents, of Parliament).

6.6. There were mixed views on who should have responsibility for upkeep and oversight of the register. Opinion was split between those who believed that the Committee's Clerks should perform this function, and others who preferred an alternative approach. A few respondents stated that they were not in a position to recommend how a register should be supported. Some additional comments were also made on the overall approach that should be adopted to the upkeep and oversight of the register.

The role of Committee Clerks in upkeep and oversight of the register

6.7. Many respondents made specific comments on the role of Committee Clerks in upkeep and oversight of the register. These included comments on benefits and concerns with the Clerks being responsible for this. Perceived benefits focused on views that they: would be impartial and independent of government; had existing expertise and a similar role; and were already familiar with the issues involved.

6.8. Issues and concerns with Clerks being responsible for upkeep and oversight of the register focused on views that: there may be a lack of independence; there could be potential for conflict of interest; the Clerks' role was different to maintaining a register; and there could be problems in the future if Parliamentary staffing structures were to change. One respondent expressed the view that the Scottish Government and Parliament underestimated the additional workloads these responsibilities would place on the Committee Clerks.

Other suggestions about responsibility for upkeep and oversight of the register

6.9. Many respondents made other suggestions about who should be responsible for upkeep and oversight of the register. Some, for example, expressed the general view that responsibility for this should lie with an independent body or impartial agency or Commissioner. One respondent stated that, in Canada, the register and Code of Conduct were overseen by an Office of the Commissioner of Lobbying of Canada.

6.10. Where specific suggestions were made, the most common were that the upkeep and oversight role should be undertaken through the Public Standards Commission and the Commissioner for Ethical Standards in Public Life in Scotland. The benefits of this were seen to be that this would offer a more independent approach; and would be consistent with the Commissioner's current remit, skills and experience. One respondent expressed the view, however, that, while this role was well-aligned to proposals to limit the scope of the register to interactions with MSPs and Ministers, they believed there was a need for a focus on lobbyists' activities.

6.11. A small number of respondents suggested that the upkeep and oversight role should be undertaken by the Scottish Information Commissioner, with suggested benefits including their independence, skills and experience.

6.12. A few respondents made other comments, suggesting that:

• Parliament should be the custodian of the register or its oversight and upkeep should be the responsibility of a dedicated unit.
• The role should be undertaken by a government employee.
• The Office of the Registrar of Consultant Lobbyists (the existing body in the UK) could take on this role in Scotland.

Additional comments relating to upkeep and oversight of the register

6.13. A few respondents made additional comments. Some expressed views on the role of the register's operator, including that this should involve:

• Administering the register.
• Providing a public registry of all disclosed lobbying information.
• Providing guidance and advice on registration.
• Overseeing the register (rather than, for example, making major interpretative decisions about who should and should not be required to register).
• Ensuring compliance with the law and Code of Practice (e.g. carrying out investigation and audit; maintaining a "whistle blowers' hotline").

6.14. A few respondents stated that the task would be challenging. One stated that, if the task were to be carried out by Clerks, there would be a need for training. A few expressed the view that the process for supporting the register may be different to the process for enforcement, and one argued that there would be a need for a full disciplinary procedure that was human rights compliant. (Enforcement issues are discussed at Question 16 below.)

6.15. One respondent stated that there should be a commitment to adopting and promoting a culture of lobbying transparency. Another argued that the Registrar should be connected to lobbyists in an open and positive manner. A further respondent stated that they would not support the creation of a new bureaucracy to act as Registrar. A small number of respondents suggested using existing records or registers to inform the establishment of the register in Scotland.

6.16. Some respondents stated specifically that the register should have minimal impact on the public purse, and several expressed the view that there would be a need for sufficient resources to support the system, and that such requirements should be considered. A small number of respondents stated that upkeep and oversight of the register should be subject to review.

Question 16: Enforcement mechanisms and sanctions

6.17. The key issue identified in the consultation document for exploration at Question 16 was what enforcement mechanisms and sanctions should be available. The consultation document noted (paras 61-63) that the Committee had proposed a possible model for a compliance regime, stressing that emphasis should be on assisting lobbyists in correcting unintended transgressions. The document noted that the Committed raised the possibility of a tiered process, including:

• Prompts from the Registrar to seek a resolution.
• Investigation by the Commissioner for Ethical Standards in Public Life (who would report to the Committee, and the Committee would consider whether to recommend that sanctions be imposed by Parliament).
• Criminal offences and penalties.

6.18. The Scottish Government expressed support for a registration regime where the emphasis was on assisting lobbyists to comply with registration requirements, but with stronger sanctions available. The Scottish Government expressed support for the inclusion of criminal sanctions (para 64 of the consultation document).

6.19. Question 16 was an open question, which asked:

"Do you have any views on what enforcement mechanisms and sanctions should be available in connection with the registration regime? Please provide reasons in support of your response."

Overall views

6.20. Over three quarters of respondents expressed views about enforcement mechanisms and sanctions.

6.21. 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. Many respondents also made additional suggestions.

The benefits of enforcement mechanisms and sanctions

6.22. Many comments were made about the overall need for, or benefits of enforcement mechanisms and sanctions (by over half of those who addressed this question). Many respondents expressed the view, for example, that these were required for the register to function effectively, as well as to ensure compliance and prevent abuse. Some respondents stated that evidence demonstrated the importance of enforcement and sanctions.

6.23. Several respondents expressed overall agreement with the proposed approach (either as outlined in the Committee recommendations or in the consultation document). Some expressed agreement with a particular aspect of this, such as having a tiered or progressive response to non-compliance (with more severe sanctions for more serious offences). Several expressed support for having a range of sanctions (including, for example, the option of criminal sanctions). Further common comments included agreement with: the need for enforcement mechanisms and sanctions to be proportionate; the emphasis on assisting lobbyists to correct unintended transgressions; and the promotion of co-operation from lobbyists, rather than being unnecessarily punitive.

6.24. A few respondents expressed specific support for the proposed role of the Registrar and / or the role of the Commissioner for Ethical Standards in Public Life.

Issues and concerns relating to enforcement mechanisms and sanctions

6.25. Many respondents (including some of those who identified a need for enforcement mechanisms and sanctions) also raised issues and concerns. These were identified by approaching half of those who addressed the question. Among these, over half (and around a quarter of those who addressed the question overall) raised specific issues and concerns with the inclusion of criminal sanctions. A few expressed general disagreement with this, while some more specific concerns included views that criminal sanctions:

• Would not be proportionate, nor in the public interest.
• Were not needed when there was no evidence of a significant problem, and existing legislative provision (e.g. the Bribery Act 2010).
• Could follow from unintended transgressions.
• Could deter engagement with MSPs and Ministers.

6.26. One respondent stated that failure to adhere to a Code of Practice should be dealt with by civil sanction, and that criminal activity should be dealt with by the police and Procurator Fiscal.

6.27. A few issues and concerns were also identified relating to the use of deregistration, including that:

• The effectiveness of this would be limited against a lobbyist who had not registered.
• There may be difficulties about how contact with MSPs would be prevented.
• There may be difficulties with how this would be monitored (e.g. whether an MSP would be obliged to report any contact).
• It was not clear what would happen if a restricted lobbyist was contacted directly by an MSP.

6.28. A few other issues and concerns with enforcement mechanisms and sanctions were also raised. A small number of respondents focused on the overall approach, suggesting, for example, that the language used was heavy handed, or that the approach was disproportionate (including, in the view of one respondent, for the Third Sector). One respondent suggested that there were tensions between a system based on co-operation and voluntary disclosure, and a system of statutory regulation with criminal sanctions.

6.29. Additionally, a small number of respondents expressed views that:

• Sanctions were unlikely to be needed (with public censure or the risk of reputational damage likely to suffice).
• There was not sufficient detail about the proposed regime, with the potential for unintended transgressions.
• It may be difficult to identify breaches.
• The issue of sanctions was linked to the onus for registration, with concerns that an individual could be sanctioned (e.g. for acting on behalf of an organisation).

Additional suggestions relating to enforcement mechanisms and sanctions

6.30. Many respondents made additional suggestions about enforcement mechanisms and sanctions. Common views included that these should be proportionate, and that the approach should focus on co-operation, correcting unintended errors, providing assistance and raising awareness of the rules and regulations.

6.31. Many respondents suggested specific types of sanction for inclusion, such as:

• Prevention of lobbying for a period; prevention of future access to decision makers; removal of Parliamentary passes; removal from the register of consultant lobbyists, or removal from the list of those allowed to lobby (with one respondent suggesting that the organisation removed should be named).
• Civil sanctions (e.g. fines and financial penalties; interdicts; compliance notices).

6.32. A number of specific suggestions were also made about the approach to using sanctions. Some expressed the view, for example, that sanctions (particularly financial and criminal sanctions) should be a last resort. It was also argued that enforcement mechanisms and sanctions should not create unintended barriers to the accessibility of the Scottish Parliament. A few respondents suggested that the size or type of an organisation should be taken into account in considering sanctions, while one argued that two-tier sanctions would be confusing. One respondent identified particular issues which they did not believe should be treated as non-compliance.

6.33. Other suggestions relating to enforcement mechanisms and sanctions included that:

• Sanctions should be commensurate with other requirements (e.g. the existing regime for charity regulation; the MSP Code of Conduct).
• Compliance should be dealt with in the same way as for comparable registers (e.g. Protecting Vulnerable Groups [PVG] scheme membership).
• The register should be part of the existing standards regime in the Scottish Parliament.
• The system should follow Hampton's principles of good regulation^[11].
• Enforcement and sanctions should be upon organisations, not individuals.

6.34. One respondent argued that, if individual employees were at risk of sanctions, each employer would need to address this in their employment contracts, and offer indemnity insurance. They suggested that, if an employee did something wrong, it should be dealt with by their employer as a disciplinary issue (with other laws available if required). Another respondent suggested that they favoured penalties for non-compliance being available to charities' primary regulator.

6.35. A few suggestions were made about the implementation of enforcement mechanisms and sanctions. These included, for example, having a "settling-in" period; providing support and advice (e.g. with an awareness campaign at the launch of the register); and undertaking further discussion of these issues.

6.36. A small number of respondents identified a need for clarification of aspects of the proposals, including, for example:

• How and by whom enforcement would take place.
• What sanctions there would be for failure to adhere to the Code of Conduct.
• Whether sanctions would differ for different sectors.
• Whether MSPs would face parliamentary sanction for agreeing to meet with individuals or organisations where it had been recommended that they should not, and whether it would be a criminal offence for an individual or organisation to arrange such a meeting.
• What sanctions could be imposed on those lobbying from outside the UK.

6.37. One respondent argued specifically that responsibility for compliance should not be separated out to different Parliamentary bodies. Another stated that the Scottish Government should identify gaps in current legislation that new criminal sanctions would seek to address. It was also stated that enforcement mechanisms and sanctions would require resources.

Question 17: Adjustment of registration regime

6.38. The key issue identified in the consultation document for exploration at Question 17 was whether the legislation should be flexible to allow the registration regime to be changed in the light of experience. The consultation document noted (para 66) that the Committee had concluded that Parliament must be able to change the new system if it were to inhibit those seeking to legitimately lobby the Scottish Parliament and Scottish Government.

6.39. The Scottish Government expressed the view that, following the establishment of the register, there should be the facility to adjust the scope and operation of the registration regime in the light of practical experience of its operation, with a role for Parliament to make any changes by resolution, which would be published as a Scottish Statutory Instrument (SSI) (paras 67 and 68 of the consultation document).

6.40. Question 17 asked respondents to express a view of whether this should be possible, as follows:

"Do you have any views on whether Parliament, by resolution, should be able to adjust the scope and operation of the registration regime once established?"

Overall views

6.41. Over three quarters of respondents made comments on this issue.

6.42. 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. Almost all (around nine in ten) of those who expressed a clear view, and approaching half of all respondents stated or implied their agreement with this. A small number qualified their views by stating, for example, that: this should apply to minor changes (with suggestions about the nature of these); and that it should be subject to consultation and scrutiny.

6.43. A small number of respondents expressed or implied their disagreement (with no clear pattern among these). Over half of all respondents either did not express a clear overall view, or did not address the question. Most of the additional comments focused on the benefits of, or reasons for, this provision. A small number of issues or concerns were also raised. Many respondents made additional suggestions about the way forward.

Benefits of Parliament being able to adjust the regime by resolution

6.44. The most common benefits of Parliament being able to adjust the scope and operation of the registration regime by resolution related to the potential for issues to emerge following its implementation. Comments included, for example, that lobbying was a shifting industry, and that there could be changes in communication methods, public needs and awareness. It was also argued that there could be teething problems and difficulties in interpreting legislation in the early stages. It was also stated that the full implications, impact and consequences of a register could not be known until it was in place (with, for example the potential for: unforeseen problems; a negative impact on some issues; loopholes; or practical issues). One respondent argued that Parliament may wish to act quickly if a particularly urgent issue arose.

6.45. Among other comments, a few respondents stated that there should be an opportunity to learn and reflect on implementation (and one stated that the experience of other jurisdictions indicated that some lobbying registers needed to be revised in the light of experience). One respondent stated that Parliament would ideally take ownership of the Bill and the resulting structure. Another argued that it may be important for Parliament to examine the register without this taking undue time. A further respondent stated that the regime should be "future proof".

Issues or concerns with Parliament being able to adjust the regime by resolution

6.46. A small number of respondents identified issues or concerns with Parliament having the scope to adjust the scope and operation of the registration scheme, once established, by resolution.

6.47. A few respondents expressed the views that:

• There should be little need for further amendments.
• Any important decisions should be made prior to implementation.
• The register should be right from the start (rather than, for example, relying on the potential for retrospective change).
• A flexible register could undermine its independence and credibility, and delay tackling fundamental points.

6.48. A few respondents expressed disagreement with the use of secondary legislation, or argued that any substantial changes might be better achieved through an amendment rather than an SSI. One stated that secondary legislation should be used only for administrative purposes.

Additional suggestions relating to Parliament being able to adjust the regime by resolution

6.49. Many respondents made additional suggestions and general comments relating to adjustment of the regime. The most common theme was that there should be a process of review following the introduction and operation of registration. Some respondents argued that there should be regular review (particularly, in the view of one respondent, in the initial years of operation). Some suggested specific timescales for review (e.g. ranging from 1-5 years). One respondent argued that any registration regime which was introduced should be operational for the duration of a parliamentary term, with review no more than once per parliamentary term.

6.50. A few respondents identified specific issues for consideration on review of the regime. These included, for example: whether the system was causing any difficulties or burden; the costs and benefits; whether it was achieving its objectives and / or added any value; and whether there were any unintended consequences. A small number of respondents stated that it would be difficult to measure effectiveness (without a specific problem needing to be addressed by the system).

6.51. Several respondents commented on the process of change, including the view that there should be discussion of, and consultation on any changes and that these should be evidence-based. Another suggested that a voluntary pilot scheme should be tested prior to legislation. A few respondents argued that the process for adjustment should be enshrined in legislation and / or that any resolution should be subject to the affirmative procedure.