Do you seek to influence or lobby MSPs, Scottish Ministers, Scottish Special Advisers or the Permanent Secretary? If so, then by early next year you will need to register any ‘regulated lobbying’ with the Scottish Parliament’s lobbing register.
If you are coming to this new, read my earlier blog first to decide if you’re likely to need to register and to understand what ‘regulated lobbying’ is. It is also worth taking a look at the Lobbying Registrar’s 5 Key Steps, on page 10 of the draft guidance.
In this blog, I look at exclusions (i.e. where you don’t need to register), outline some possible lobbying scenarios and highlight what’s not covered by the Act.
So, what exclusions might apply to my organisation?
There are three main ones that are of particular interest to third sector organisations.
- My organisation only uses volunteers (including unpaid charity trustees) to lobby.
If that’s the only form your lobbying takes, you do not need to register – even if you are lobbying Ministers. Unpaid charity trustees are included as volunteers.
- My organisation only lobbies local MSPs in constituencies or regions where my organisation operates (unless they’re Ministers, in which case the activity does need registering).
If that’s the only form your lobbying takes, and you are not lobbying on behalf of someone else (a ‘third party’), you do not need to register. This is true even if you’re talking about national issues – so you can breathe a sigh of relief in terms of trying to track any visits made by politicians to local services, charity shops etc. But Ministers are a different kettle of fish – so keep an eye out for new Ministerial appointments.
- My organisation has fewer than ten ‘full time equivalent’ staff.
Such an organisation does not need to register, unless it is a ‘representative body’. So what is a representative body? Co-production, making sure people’s voices are heard, working directly with individuals, members and communities is, in a way, much of what the sector does, and many in our sector would call themselves representative. But in order to decide if your organisation is a ‘representative body’ for the purposes of the Lobbying register, we need to look at the definition of ‘representative body’ given in the Act.
Unfortunately, there is no definition of ‘representative body’ given in the Act. This means we need to look to the Act’s guidance instead, which confirms that “it is clear that the intent [of the Act] was to exempt most small organisations from the requirement to register […] While many small organisations lobby and campaign to raise awareness of a particular cause, that does not mean they are necessarily a representative body […] To be a representative body you have to be constituted in such a way that the views of your members or supporters are actively sought, considered and actioned, and this must be a core purpose of your organisation.”
So when trying to decide whether your organisation counts as a representative body, you might want to consider the words ‘constituted’ and ‘core purpose’. In the end, though, you’re probably best to seek advice directly from the Registrar’s team on this one.
If none of the exclusions apply, and you think your organisation will have to register, then it is worth thinking through some scenarios:
- Self-organised events: you don’t need to record event visitors’ lobbying activity, only your own organisation’s. So brief staff, and don’t be shy asking who you’re speaking to if you’re not familiar with all MSPs etc.
- Exhibition stands: general chat with politicians etc. at exhibition stands, photo ops, and so on, don’t need recording, but any lobbying or influencing does.
- Parliamentary receptions: though these are in parliament, they will need recording – with a seperate record on the register for each conversation (i.e., you can’t just say “I spoke to a dozen MSPs throughout the evening,” you need one record for each).
- Speakers and audiences: if an MSP etc. is speaking, just be aware of any lobbying you have undertaken pre- and post-speech. If you’re speaking, are you directly addressing the speech to any relevant MSPs etc. in the audience in particular? If so, then that’ll need recording.
- Asking questions: if you’re asking a question of an MSP etc. in an effort to influence them or other national Scottish politicians in the room, and you lay out your (or your organisation’s) position in the course of your question, you may well need to register it. But if they ask a question of you, the request has come from them and you should be fine to not register it.
- Panels: if you’re sitting on a panel next to an MSP etc., then usual rules apply. But if you have only organised a panel to seek to influence an MSP etc. by having her/him hear certain views, and are not speaking, then – if you don’t verbally lobby them directly – you’ve no need to record that event.
- Party conferences
- Fringe events: even though you’re at party conference, usual event rules and speech rules apply as highlighted previously.
- Private meetings: private meetings are your classic lobbying undertaking – so all of these with MSPs, Ministers and Special Advisers will need recording – one for each conversation.
- Exhibition stands: much as for general events, although this time you might need a list to hand of all the party’s MSPs so you capture them all, including what you spoke about. Again, each conversation will need to be submitted to the register separately.
- Dinner and drinks: the guidance stresses that it is not the circumstance under which the conversation took place that matters, but the type of conversation. So if you’re lobbying, it needs recording – even if it took place during late-night karaoke.
- Independent advocacy (i.e., organisations that use paid staff to help their volunteer supporters and activists to influence politicians)
- If you are supporting with the set-up of a lobbying/influencing meeting with MSPs etc. but not attending yourself, then no lobbying is going on – so this activity will not need registering.
- If you do attend such a meeting, but remain silent, you will not need to register this.
- If you attend the meeting and interject, but only to facilitate (saying, for example, “why don’t you tell the Minister what you said to me earlier about your dementia care?”) then this is where it gets grey, and really it’s up to you to decide on whether you feel you are lobbying through your direct involvement – again, ask the Registrar if you’re unsure.
- If you attend and participate fully, then this would be lobbying and would need registering.
What’s not covered?
As well as exclusions for certain types of organisations, it’s also worth bearing in mind that the following activities do not come under the remit of the Lobbying (Scotland) Act at all:
- Lobbying any other type of politician, and any staff
Local politicians are not covered by the Act, so you do not need to register any engagement with them at all. The same goes for civil servants (except Special Advisers), MSPs’ staff, parliamentary staff or political party staff.
- When you are speaking to anyone by telephone, email, Facebook, etc.
If it’s not face-to-face or video conferencing, you don’t need to register it. British sign language conversations (along with semaphore or any other physical gestures, in case you were wondering…) will need registering.
- Giving oral evidence in formal sessions to committees.
But be careful on your way in and out – any relevant chats will need registering.
- Speaking in quorate Cross Party Groups
So you need two or more MSPs to be present for it not to count – but speaking to MSPs on the way in or the way out of CPG meetings, and, potentially, in the organisation of those CPGs (depending on what you’re talking about), do count and will need registering.
- Requested information
There’s an exclusion in the Act for information that’s requested by MSPs and/or Ministers, Special Advisers or the Permanent Secretary – but if you start talking about other things beyond the original information request, then you will need to register those conversations.
So, whilst now would be a good time to get internal systems in place (the IT system launches for a bit of a play around in October, so you can have a go at registering lobbying activity ahead of the actual start of the Act in 2018), I would say to keep on doing what you’re good at – advocating, influencing, and lobbying. We all know how important this work that the sector does it, so definitely don’t stop because of the register.
If I was going to find a silver lining in all of this, I’d say try using the register to enhance your reputation, and show everyone all the engagement you’re having with politicians. In particular, you could point to this for funders and supporters, to help them see where their money is going and how hard you are working.
As to registering, if you’re still unsure, ask the Registrar’s Team – that’s what they’re there for.