APPC Scotland Submission on Lobbying Transparency Bill
APPC Scotland agrees with the consultation document that “Lobbying is an important part of the political process” and welcomes the opportunity to respond to this consultation on proposals for the introduction of a statutory lobbying register.
We are committed to the principles of openness and transparency, as is evidenced by our public register of clients and consultants, and to maintaining and raising standards in public affairs through our code of conduct. APPC’s register and code of conduct is publicly available at www.appc.org.uk.
We would therefore support, in principle, the introduction of a statutory register of lobbying in Scotland, so long is it clearly functioned to increase the level of transparency and improve standards in a way that could not be otherwise achieved, so long as it covered all lobbying undertaken in a professional capacity, and so long as the information it contained was verifiable.
Our response seeks to reflect the views expressed by our members following the publication of the consultation paper. Inevitably, it is not possible to write a response which reflects the views of all members on every point. Where there is a divergence of views on significant issues, our response seeks to reflect that.
· APPC Scotland proposes that the simplest and most cost-effective way to achieve openness and transparency concerning ‘who is lobbying whom, and about what issues’would be to make public the relevant sections of the official diaries of Ministers, civil servants and MSPs.
· However, were a statutory register of lobbying to be introduced, APPC Scotland would be supportive of such a register, providing that it applies equally to all those who engage in lobbying on a professional basis.
· This means that, as well covering lobbying activity undertaken by those who work as public affairs or political communications consultants, the far larger number of people who undertake lobbying in a professional capacity - those who work for law firms, management consultancies, planning consultancies, think tanks, trade associations, trade unions, charities, NGOs and in-house for businesses - should also be covered by the register. Any register that failed to incorporate the broadest possible range of those undertaking lobbying in a professional capacity would fail to achieve its objective of improving transparency and building public confidence.
· Such a register should exclude individuals who are not lobbying in a professional capacity, so there should, as proposed be an exemption for “the contact between an MSP and his or her constituents.”
· APPC Scotland is fundamentally opposed in principle and practice to the inclusion of financial information on any register.
1. Do you support the general aim of the proposed Bill? Please indicate “yes/no/undecided” and explain the reasons for your response.
Yes. APPC Scotland supports the general aim of the bill to ‘ensure that lobbying in Scotland is made as open and transparent as possible’.
We would also support, in principle, the introduction of a statutory register as a means of achieving this objective, though we are of the view that openness and transparency concerning ‘who is lobbying whom, and about what issues’ could be more easily achieved by other means.
2. Do you agree that legislation is a necessary and appropriate means of improving lobbying transparency?
No. With regard to the key objective of being more open about who is lobbying whom, and on what issues, this information already exists within the official diaries of Ministers, Civil Servants and MSPs. Making the relevant sections of or entries in these diaries publically available would be the simplest and most cost effective means of ensuring greater openness and transparency.
3. Is there any specific international approach to the regulation of lobbyists that represents a good model for developing an approach appropriate for Scotland?
APPC Scotland believes that, should a register of lobbying be brought forward in Scotland, then such a register should be developed, as far as possible, in a collaborative manner between all interested parties and in accordance with the founding principles of the Parliament itself. International models would be useful reference points primarily in order to ensure the Scottish model does not repeat mistakes made elsewhere (such as that developed by the EU Commission).
Decisions about what information to include, and the frequency with which information is to be provided, would be the key factors in determining which other models we can learn from.
4. What robust, comprehensive and sufficiently explicit definitions of lobbying and lobbyist can be developed and applied that will ensure all who lobby are captured under the proposals?
The APPC definition of lobbying, in specific relation to Scotland, is as follows:Lobbying means in a professional capacity making any oral or written communication (including an electronic communication) to any member of the Scottish Government or its agencies, advisers or officials or member of the Scottish Parliament or their staff or advisers with regard to the formulation, modification, or adoption of legislation; the formulation, modification, or adoption of any rule, regulation, order, policy, or position; the administration of any Government programme or policy, including the negotiation, award, or administration of a contract, grant, loan, permit, or license; or any other official act or decision.
A ‘lobbyist’ is therefore defined by activity undertaken, rather than by job description or job title and, for the purposes of the register, would be any person undertaking lobbying activity (as defined above) in a professional capacity.
5. Who should register on a lobbying register in Scotland?
As per our response to question 4, a statutory register should cover any person undertaking lobbying activity in a professional capacity. This definition covers not just public affairs and political communications consultants, but also those working for law firms, management consultancies, planning consultancies, think tanks, trade associations, trade unions, charities, NGOs and in-house for businesses.
Whilst it is often public affairs and political communications consultants who are referred to as ‘lobbyists’, the reality is that only a small portion of lobbying is undertaken by such consultants. Any register that failed to incorporate the broadest possible range of those undertaking lobbying in a professional capacity would fail to achieve its objective of improving transparency and building public confidence.
Indeed, APPC Scotland believes that one of the consequential benefits of the greater openness and transparency brought about by a statutory register will be to dispel misconceptions about our sector and what we do. Certainly in relation to our own members, though often referred to as ‘lobbyists’, lobbying activity (as defined above) is in fact only one of a range of services provided to clients, and indeed only accounts for a relatively small proportion of our activity.
APPC Scotland agrees with the proposal that a register of lobbying would need to be formulated in such a way as to specifically exempt individuals lobbying MSPs on personal or constituency matters in a non-professional capacity.
We are also in agreement with the exempted activity as listed on pages 18/19 of the consultation, although there is potentially a grey-area around the issue of “Communication – a speech, article, book, blog, twitter or social networking group that is made widely available.”
Though generally such activity should be exempt, there may be occasions where the communication is primarily aimed at a political audience, and for the purposes of influencing legislation, policy, etc. For example, an article in a political publication (such as Holyrood magazine), or a speech at a Party conference fringe event, may have such a purpose.
The guidelines and definitions associated with the register may need to be clear on context - where specific forms of communication in specific circumstances would constitute lobbying activity, and in which circumstances it would not.
6. Is it necessary or desirable to develop a Code of Conduct for lobbyists to accompany a lobbying register? If so, what key elements should this code include?
No. Although, ideally, APPC Scotland would like to see all those who undertake lobbying in a professional capacity sign up to, and abide by, a suitable Code of Conduct – such as our own – we are in agreement with the Westminster consultation on a statutory register, that a code of conduct is “a matter for the industry itself, not for the operator of a register”.
We would expect that one of the consequences of a statutory register would be an increased willingness on the part of those who are not already subject to a Code of Conduct to seek membership of a relevant association with such a Code and suitably robust complaints, regulatory, adjudication and disciplinary procedures. An option on the proposed register to indicate whether or not a registrant is a member of an association with an ethical code of conduct relating to lobbying activity would certainly assist in this objective.
7. Are the current arrangements, whereby lobbyists are governed only through self-regulatory schemes, adequate or is a statutory regime required in order to regulate lobbying?
As the consultation itself indicates, there has been little or no incidence of concern in Scotland relating to inappropriate or unethical lobbying activity – and therefore there is very little reason to suggest a statutory regime is either required or desirable.
However, as per the previous answer, APPC Scotland believes that one effect of the statutory register will be to increase the number of people and/or organisations (who are lobbying in a profession capacity) who sign up to a suitable code of conduct and are thereby subject to the relevant regulatory, adjudication and disciplinary procedures.
We believe that until such time as a definite need for a statutory regime can be demonstrated, a self-regulatory approach is both sufficient and appropriate.
8. What do you think is the appropriate and necessary information to be disclosed in order to make lobbying transparent and how regularly should entries be updated?
The objective of the consultation is stated as being to achieve “greater transparency and disclosure about who is lobbying whom, and on what issues.”
Should a statutory register be brought forward, that register should be as complete as possible in order to fulfil the objective of openness and transparency but needs to be simple and straightforward to complete, and to check. Too little information would undermine the purpose of the register, but too much information would potentially render it unwieldy. It is vital that the right balance is achieved.
With this – and the stated objectives - in mind, we would suggest the information necessary to achieve this level of transparency would be as follows:
· Date (of contact)
· Registrants Details (Person or persons who made contact, name of company/organisation, contact details)
· Lobbying Undertaken on behalf of: (where lobbying was undertaken on behalf of a third party)
· Who Contacted: (name and position. There will also need to be an option to register multiple or group contacts – for example ‘all MSPs’ in the case of written briefings)
· Type of Contact: (drop down list of type of contact, including meeting, telephone conversation, written briefing, email, presentation, etc)
· Subject/Purpose of Contact: (issue/s addressed)
In addition, as per our response to question 6, we would also suggest a further option:
· Regulatory Association (option to indicate membership of an association with a code of conduct and regulatory regime promoting ethical lobbying)
APPC Scotland is fundamentally opposed, both in principle and in practice, to the proposal to include financial information in the register. In particular, the requirement to register a good faith estimate of client income related to lobbying is problematic for two reasons:
1) This aspect of the proposed register is the only area where the information being requested is unverifiable by any second or third party, as there is no mechanism with which to check its accuracy. APPC Scotland believes that including unverifiable information in the register would undermine the integrity of the register.
2) It would be overly burdensome on our members to try and calculate to any degree of accuracy. The reality of public affairs work is that lobbying is just one of a range of services provided to clients, and only accounts for a relatively small proportion of activity. Lobbying services are not costed separately in contracts, nor in invoices.
The consultation document states that “it is vital that for purposes of transparency the public can see how much is being spent on lobbying. There is a big difference in perception between a lobbying contract worth £2000 and one worth £50,000.”
This statement is highly problematic for two reasons. Firstly, as indicated above, there is, so far as APPC Scotland members’ are aware, no such thing as a ‘lobbying contract’ – or indeed any contract which specifies a particular monetary value or time to be spent on lobbying activity. The statement shows a grave misconception about what our sector does, and how it works.
Secondly, there is not, and should not be, any correlation between the financial amount spent on lobbying activity by an organisation and the degree of influence it has on decisions made. To suggest otherwise would be to misrepresent our political system and traduce our political representatives and institutions. Far from encouraging transparency, the requirement to include financial information – even if it were possible in any meaningful and verifiable way – would simply function to reinforce any misconceptions that there is such a link.
APPC Scotland is not convinced of the need to include information on the career history of every person who undertakes lobbying activity in a professional capacity. The amount of information required is already significant and raises important issues around the management of the register, and verification of data. Too much information will make the register unwieldy.
In most cases, relevant information about anyone lobbying in a professional capacity is likely to be publicly available anyway – if not on their company website then on linkedin, or available from a Google search.
However, depending on the intention of this aspect of the proposal, it may be better to consider requiring registrants to indicate any public office held over the last five years, or whatever timeframe is deemed suitable.
How regularly should entries be updated?
We would suggest that a statutory register would need to be published online on a quarterly basis (as is the APPC register), by whichever body is vested with the responsibility for its publication. For administrative purposes, there would be a time-lag between the end of the quarter being covered and the date of publication, and this time-lag will be determined by the amount of information received and needing inputting by the administering body.
We would also suggest that to ease the administrative burden, those registering should be allowed the option of either submitting information on a rolling basis during the three months to be covered by each published register, or as a single submission to be made before a given date.
9. Should there be a threshold for inclusion in the lobbying register? If so, what should it be (in terms of time / resources devoted to lobbying, size of organisation, budget, etc.)?
Whilst understanding the wish to avoid unnecessary administrative burdens on small organisations, APPC Scotland cannot support any threshold-based requirements for registration, for the following reasons:
1. The threshold approach does not obviate any burden on smaller organisations undertaking small amounts of lobbying as everyone undertaking any lobbying at all would need to keep track of their time spent on lobbying on an ongoing basis in order to check whether or not, at the end of each three month period, they had met the threshold requiring them to register.
2. The idea of thresholds for registering activities implies that only lobbying activity at or above a certain financial value is worthy of being ‘open and transparent’, and therefore also proposes that lobbying below a certain value is not worth knowing about – in short, it suggests that degree of influence is related to the amount spent. This is both erroneous and misleading.
3. Setting to one side, for a moment, the previous points made about the inherent difficulties in calculating income/expenditure on lobbying activity, there is an inherent iniquity in the suggested approach regarding the consultant lobbyist threshold and the in-house threshold. The in-house threshold means a single organisation could spend £1499 of an in-house employee’s time on lobbying activity each month without having to register any activity, whereas a consultant ‘lobbyist’ - whose income could be based on two or more small organisations spending a combined total of £334 per month on lobbying - would have to register all related activity. It also means that, theoretically, an individual company could spend just short of £1500pcm on in-house activity supplemented by £333 of external lobbying activity support without anyone having to register anything.
In short, theoretically, a charity spending less than £112per month on a consultant (in concert with two other charities contributing a similar amount) may be required to have their activity registered, whereas a company spending over 16 times as much would not.
4. If there is to be a register of lobbying, with the intention of creating more openness and transparency, then the register needs to be based on lobbying activity as defined, and apply to all those who are not specifically exempt. Applying financial thresholds not only undermines the principle and objective of the register, but being extremely erroneous to calculate and in any case unverifiable, simply provides an opportunity for those wishing to avoid registration an opportunity to do so.
10. Should it only be contact with MSPs, Ministers and civil servants which should require to be recorded on the register, or should all public officials, including from NDPB’s, be included?
Our proposed definition of lobbying is provided in response to question 4.
11. Which organisations should be exempted from registering and why should they be exempted?
If there were to be a register, there should be no exemptions for any individuals or organisations that conduct the “professional act of lobbying” as defined for the purposes of the register.
12. Is an independent body required to oversee the register? If so, which organisation should be responsible for administering the register?
APPC Scotland would have no objections, in principle, to the proposal that detailed consideration be given to possibility of the Scottish Information Commissioner administering a statutory register.
13. How will compliance be policed and what investigative and enforcement powers would the overseeing body require?
Compliance with the requirement to register, and the registration of correct information, can only be ensured – and ‘policed’ – if the information required is verifiable. This must be a basic principle of the register, otherwise it is a pointless exercise.
Registered information may be verified by reference to MPS, Ministerial and civil service diaries, and certainly in relation to some information regarding our members could be cross-referenced with the APPC register.
Regarding enforcement, working on the principle that guidelines would reflect those currently in place in the APPC, we would welcome a progressive system of warning and sanctions as intimated in the consultation, but which also allows for genuine error. However, it is difficult to see how ‘permanent removal from the register’ could be applied as a sanction, unless the purpose of the register was at least in part intended to act as a list of approved lobbyists. This goes beyond its stated purpose and complicates its function. The purpose is surely to create a public record of lobbying activity, to give clarity to who is lobbying whom and about what, not to function as a form of official endorsement of those who appear on it.
We would propose that transgressions are investigated by a board that includes representation from the sector associations who have significant experience in investigating and adjudicating registration errors.
14. How should the administration of a statutory register be paid for? And what is your assessment of the likely financial implications (if any) of the proposed Bill to you or your organisation? What (if any) other significant financial implications are likely to arise?
Until the likely size and scope of the register, and number of registrants is known, and until the administrative cost can be adequately estimated, it is not possible to know what level of funding would be required.
It is certainly clear that any register would need to operate at as minimal a cost as possible, however it is funded, and for this reason the register itself - and its administration – would need to kept as simple and straight-forward as possible.
Ideally, in order to ensure there was no disincentive to registering, the funding would need to come either solely or in the main part from the Scottish Government, or Parliament.
In the event that charges were levied for registration, these will need to be sufficiently low so as to not be a disincentive for registration, and there would also need to be a sliding scale to reflect the size of the organization lobbying and/or the frequency of registration. If such an approach were to be taken, there would also be an administrative cost to the establishment and management of a fee charging/collecting capability within the administering body. An assessment would need to be made as to the extent to which this would be a cost-effective approach.
However, as indicated previously, information regarding who is meeting/lobbying whom, and about which issues, is already recorded in official diaries, and it is our view that making the relevant entries publicly available would be the simplest and most cost effective way of achieving the core aims stated in the consultation.
15. Is the proposed Bill likely to have any substantial positive or negative implications for equality? If it is likely to have a substantial negative implication, how might this be minimised or avoided?
We can see no significant implications for equality. However, on terms of negative impact, it must be acknowledged that registering information could prove a significant time-burden to small and medium sized businesses and organisations, as well as to individuals. Such individuals/organisations cannot share the time burden across numerous staff and will therefore be disproportionately impacted upon in comparison to larger organisations.
Illiam Costain McCade
Chair, APPC Scotland
Secretary, APPC Scotland
 “Introducing a Statutory Register of Lobbyists” Consultation: Page 15