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

7. EQUALITIES AND BUSINESS IMPACTS AND OTHER ISSUES

7.1. This chapter summarises findings relating to the potential impact of the proposals on equalities groups and businesses (Qs 18 and 19) and other relevant issues not otherwise covered by specific questions (Q 20).

Question 18: Equalities impacts

7.2. Question 18 explored respondents' views on any equalities impacts that could arise from the proposals, to assist in the preparation of an Equalities Impact Assessment (EQIA) in connection with the legislation (para 69 of the consultation document).

7.3. Question 18 was an open question, which asked:

"Do you have any views on whether there could be impacts on equalities groups as a result of the proposals outlined? Please draw on specific evidence and/or wider knowledge, experience and expertise."

Overall views

7.4. Over two thirds of respondents made comments on whether there could be an impact of the proposals on equalities groups, although, in just under half of these cases, this was only to say that they had no particular comment or view. Several stated that they did not believe there would be any impact on equalities groups. One respondent stated that it was unclear what was being referred to as "equalities groups".

7.5. Around a third of all respondents (particularly Third Sector respondents) identified a potential impact on equalities groups. A few respondents were uncertain of the specific nature of the impact, but most comments focused on identifying the type of potential impact, and the actions needed to address any negative impact.

The nature of the equalities impact

7.6. In most cases, comments on the nature of the potential impact of the proposals related to concerns about a negative impact on equalities issues or groups. A few were at a general level (e.g. in terms of a potential barrier between equalities groups and MSPs). One respondent made reference to a "Common Weal" report (2013) that had identified that the type of people giving evidence to Parliament were likely to be white males in high income jobs^[12].

7.7. Concerns were also raised about a negative impact on particular groups or organisations, the most common of which were seen to be small community groups and those lacking financial resources. (As noted previously, concerns were also raised at different points about the potential impact of the proposals on Third Sector organisations.)

7.8. It was argued that wealthy and powerful organisations could deploy greater resources to lobbying than small organisations could (including some in the Third Sector). It was also argued that an onerous scheme could disadvantage those with fewer resources. Further concerns were expressed about the impact on those whose core business was not lobbying, but who were engaged in some public affairs work which may be covered. Concerns were also expressed about the impact on those unused to engaging with statutory organisations, and one respondent argued that smaller organisations may be unsure of their obligations, and apprehensive about seeking advice.

7.9. It was suggested that many organisations campaigning on equalities issues had small staff numbers, and that many community organisations would involve their members in lobbying. It was suggested that such organisations may find it more challenging to comply with requirements, may unintentionally fall foul of the register, and could potentially be exposed to sanctions.

7.10. It was argued that these issues could have a negative impact on groups which were already disenfranchised or disengaged. Some respondents stated that, if the types of organisations described were deterred from engagement, there would be a negative impact upon the groups they represented.

7.11. There was also seen to be a specific risk that the proposals could impact on women, children and young people. One respondent suggested, for example, that there could be an adverse impact on local Women's Aid groups (which provide a "voice" for women, children and young people experiencing domestic abuse) through having a requirement for individual workers to register.

7.12. Another respondent suggested that some organisations working with under-represented groups of young people may lack the time and resources to participate in lobbying with the new regulations (with increasing pressure to deliver services at a time of budget cuts and reductions in spending).

7.13. A further respondent expressed concern that the proposals may deter community groups that did not have English as their first language. It was also suggested that these groups may be unaware of their obligations, and reluctant to seek advice.

7.14. One respondent suggested a potential impact on people who were unable to use some forms of communication that would not fall within the scope of a register (e.g. email or telephone). These lobbyists would have to meet face to face, and may have to register more of their lobbying activity than others. As noted previously, it was also argued that having only an online register could discriminate against some organisations.

7.15. One respondent stated that there may be potential for discrimination against homeless people (particularly if there was a requirement for individuals rather than organisations to register).

7.16. For a few respondents, the potential equalities impact they identified was positive. It was suggested, for example, that this could be achieved through: improved equality of information or equality of access; and increased transparency and participation. One respondent argued that the potential negative impact appeared to be over-stated. Another argued that evidence from North America suggested that the information presented by a lobbying register could stimulate participation in politics.

Actions to address the equalities impact

7.17. Among the suggestions made about actions required to prevent or address any negative equalities impact were:

• Identification and removal of any barriers to engagement (including making any necessary adjustments and support to comply with existing equalities legislation; and keeping requirements at a level that would not prevent or restrict some organisations' activity).
• Completion of an Equality Impact Assessment and direct engagement with organisations with a primary focus on equalities, to ascertain their views.
• Provision of guidance to encourage consideration of equalities issues, and the inclusion of any equalities impact in the review process.
• Open calls for applications to sit on advisory groups, and selection criteria to ensure a balance of interest groups.

Question 19: Business impact

7.18. Question 19 explored views on the potential impacts on businesses of the proposals, and sought general views to assist in the preparation of a Business and Regulatory Impact Assessment (BRIA) in connection with the legislation (para 70 of the consultation document).

7.19. Question 19 was an open question, which asked:

"Do you have any views on whether there could be any additional costs or other implications for businesses as a result of the proposals outlined? Please draw on specific evidence and/or wider knowledge, experience and expertise."

Overall views

7.20. Most respondents made comments about additional costs or other implications for businesses as a result of the proposals. Around four in five did so. Many respondents (of different types) identified the nature of the perceived impact, and their comments are summarised below. A few provided specific evidence to support their view (e.g. reference to a report; or their own calculation of potential costs). Some made reference to the perceived implications for their own organisation.

7.21. Several respondents expressed the general view that the proposals would not have additional costs or implications for businesses. Several stated that the costs and impact would depend on the nature, scope and requirements of the register. A few expressed the view that, while there may be some business impact, the benefits would balance or outweigh this.

7.22. One respondent made reference to a US report (from the US Government Accountability Office) to suggest that, since 2010, compliance had been generally viewed by the lobbying industry as being "easy" or "very easy"^[13].

7.23. Where respondents identified a particular impact, the most common was financial, although a small number of other implications were suggested. Respondents also identified some actions seen to be required to prevent or address any business impact.

The nature of financial impact

7.24. Many respondents made comments on the potential financial implications for businesses, and the nature of the perceived impact of the proposals. The main themes related to the staff time and administration that could be involved. In terms of time, for example, costs were identified for: familiarising with reporting requirements; keeping a record of lobbying activity; logging activity on the register; completing and checking register entries; and completing updates.

7.25. In terms of administration, comments included that additional costs would come from: the need to create and administer internal compliance systems; and the development and monitoring of a new recording and reporting process. One respondent provided a calculated example of the anticipated costs of an application and return. One respondent stated that the cost of maintaining the regulatory body should fall on the organisations, but stated that the cost should be modest and the requirements proportionate.

7.26. Several respondents identified a perceived impact on specific types of businesses or organisations. These included views that:

• Many Third Sector organisations already faced financial constraints.
• There would be a greater burden on small organisations and social enterprises (e.g. with a low number of staff covering wide remits).
• There could be additional costs for small to medium enterprises (SME)s in the property industry, and it could be difficult to be precise about costs per project.
• The register could lead to an increased burden on the public sector by leading to an increase in Freedom of Information (FOI) requests.
• There could be an additional impact on organisations working across multiple jurisdictions.
• Consultant lobbyists may face significant costs.
• There would be cost implications for the body charged with administering and enforcing the regulations within the register.

7.27. A few respondents argued that a focus on individuals would have a greater cost impact on businesses than a focus on organisations, or that a requirement for additional information or more frequent registration could increase the impact.

7.28. Several respondents expressed the view that there would be no significant cost impact, or that the costs would be limited or manageable if, for example, there were to be: exemptions for small organisations; straightforward online filing; organisational registration; proportionate requirements; and publication of MSPs' diaries. A few respondents stated that much of the necessary information would already be recorded by private companies and Third Sector organisations. One respondent provided a specific example of a charity already disclosing their political contacts and policy work.

7.29. One respondent argued that there was little reliable empirical data on the compliance costs of lobbying disclosure. One provided cost estimates for different types of its members completing an application. The same respondent stated that it could provide a variety of research which may be useful.

7.30. Another respondent described their experience of completing a sample quarterly return which covered: the Registrant's details; lobbying activity details; names of individuals who acted as lobbyists; and the financial value of lobbying. The respondent reported that it had taken approximately 20 minutes to do this.

7.31. A further respondent suggested that the Business Regulatory Impact Assessment (BRIA) could rely on good-faith estimates of the time required to comply.

Other types of impact

7.32. Several respondents identified other perceived implications of the proposals for businesses and organisations. A few suggested employment implications, particularly with an individual (rather than organisation)-based approach. It was argued, for example, that, in these circumstances, organisations would need to review and potentially revise contracts of employment to cover additional responsibilities. It was also argued that they would need to consider indemnity insurance to cover staff who may be affected while undertaking activities for the organisation. One respondent expressed concerns about the "duty of care" for employees who may become a target if they were involved in a campaign.

7.33. Other implications identified included that:

• There could be accidental transgressions, and reputational damage for non-compliance.
• Any process that involved considerable staff time could impact on the ability of Third Sector organisations to lobby.
• Some organisations would need to issue guidance to members.
• There may be a reticence to employ or retain lobbyists until the impact of the register was clear.

7.34. A few respondents stated, however, that the proposals could have a positive impact on other issues for businesses. A small number, for example, argued that the system would enable access to more reliable information about other organisations' activities (e.g. public affairs and outreach), and would lead to greater knowledge and awareness. One respondent expressed a general view that businesses would benefit from a clear and transparent political process.

Actions to address the business impact

7.35. A number of suggestions were made about actions required to identify, prevent or address any negative business impact (some of which related to respondents' views on issues explored previously). Those identified were:

• Completion of a BRIA, with direct engagement with business.
• Organisational, rather than individual registration.
• Adherence to the core principles, or the principles for better regulation.
• Free registration (or a low fee if there was to be one), and no additional costs.
• Exemption of some types of organisations from registration.
• National investment in an online system which could be updated in real time.
• A requirement for MSPs to publish diaries or lists of meetings.
• Clarity of definition (to reduce the legal expertise required).
• Learning from, and providing consistency with other registration requirements.

Question 20: Other comments

7.36. Question 20 provided an opportunity for respondents to make any other comments. This was an open question, which asked:

"Do you have any other comments on the general operation of a register of lobbyists, or on any of the proposals put forward by the Committee or the Government?"

Overall views

7.37. Many respondents made comments at Question 20. Many of these comments covered issues already discussed earlier in response to specific questions, or reiterated their overall views.

7.38. Additional common themes were: the nature of the respondent and their response; the consultation process; and the way forward overall.

7.39. Comments on the issues already discussed have been included at the relevant points in this report, and will not be rehearsed again here. The issues raised in the additional themes are summarised below.

The nature of the respondent and their response

7.40. A large amount of additional information was provided about respondents. This included details of their:

• Purpose, aim, remit and services.
• Membership, coverage and representation.
• Size and composition.
• Structure and type of organisation.
• Ways of working.
• Contacts for further information.

7.41. Many respondents identified their own role in, and / or approach to lobbying. Several, for example, mentioned the importance to them of being able to lobby (e.g. to: inform MSPs; raise issues; represent the views of others; and influence policy and legislation). Some mentioned their general approach to lobbying (e.g. promoting their lobbying to their members; offering advice based on expertise; taking an open and transparent approach). A few made reference to their previous involvement in the issue of regulation of lobbying.

7.42. Several respondents commented on having a potential role in the future (e.g. offering to work with the Scottish Government on lobbying issues; offering to discuss their response further; or generally expressing a commitment to continuing to engage on the issues).

7.43. A few respondents made reference to their membership of other bodies, subscription to Codes of Conduct or similar, with examples including the:

• Association for Scottish Public Affairs.
• Market Research Society Code of Conduct and Guidelines.
• European Commission's transparency register.
• Chartered Institute of Public Relations.
• Association of Professional Political Consultants.
• Public Relations Consultants Association.
• UK Public Affairs Council.

7.44. Many respondents provided additional information about the nature of their response, including details of: the purpose; format; issues or questions covered; and views represented. Comments were also made about how responses were prepared or made available. A few respondents referred to, or endorsed another response.

The consultation process

7.45. Many respondents made comments on the consultation process itself, largely to welcome the opportunity to respond. A few made reference to having submitted views previously on the issues being explored (including a small number who made specific reference to having responded to a previous consultation and / or having provided evidence to the Standards, Procedures and Public Appointments Committee Inquiry).

7.46. A few made comments on the overall process, on the Scottish Government's proposals generally, and on the consultation document itself. A few respondents commented that aspects of the Scottish Government proposals differed from the recommendations of the Committee. One respondent suggested that a lack of clarity in the consultation document may impact on submissions from some respondents. One respondent stated that the proposals appeared to have been drawn up primarily with consultant lobbyists in mind, along with consideration for in-house lobbyists hired to act on behalf of commercial enterprises and their representative bodies. Another stated that the register appeared restricted compared to other disclosure regimes. One respondent stated that the consultation would inform the development of the proposed lobbying bill in Scotland.

The way forward overall

7.47. Several respondents made further suggestions about the way forward. These included to:

• Learn from, and reflect on, experiences elsewhere.
• Design the register in collaboration with users from civil society.
• Pilot the approach ahead of legislation.
• Undertake further consultation prior to legislation.
• Undertake an awareness campaign.
• Provide information and guidance (including charitable guidance for Third Sector lobbying).