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STANDARDS, PROCEDURES AND PUBLIC APPOINTMENTS COMMITTEE

AGENDA

1st Meeting, 2014 (Session 4)

Thursday 16 January 2014 The Committee will meet at 9.00 am in Committee Room 6. 1. Declaration of interests: Cara Hilton will be invited to declare any relevant

interests. 2. Choice of Deputy Convener: The Committee will choose a Deputy Convener. 3. Decision on taking business in private: The Committee will decide whether

its consideration of the evidence heard on its inquiry into lobbying should be taken in private at this meeting and at future meetings.

4. Inquiry into lobbying - witness expenses: The Committee will be invited to

delegate to the Convener responsibility for arranging for the SPCB to pay, under Rule 12.4.3, any expenses of witnesses in the inquiry.

5. Inquiry into lobbying: The Committee will take evidence from—

Neil Findlay; Tamasin Cave, Campaigner, Alliance for Lobbying Transparency; Dr William Dinan, Director, Spinwatch, Steering Committee, ALTER EU; Alexandra Runswick, Director, Unlock Democracy;

and then from—

Alastair Ross, Secretary, Association for Scottish Public Affairs; Illiam Costain McCade, Chair, Association of Professional Political Consultants Scotland; Andrew Watson, Chair of the Public Affairs group, Chartered Institute of Public Relations.

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6. Inquiry into lobbying: The Committee will consider the evidence heard earlier

in the meeting. 7. SPSO Special reports (in private): The Committee will consider a response

from the Public Audit Committee.

Gillian Baxendine / Alison Walker Clerks to the Standards, Procedures and Public Appointments Committee

Room TG.01 The Scottish Parliament

Edinburgh Tel: 0131 348 5239

Email: gillian.baxendine@scottish.parliament.uk

**************************************** The papers for this meeting are as follows— Agenda item 5

PRIVATE PAPER

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SPICe Briefing

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Written submissions

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Agenda item 7

PRIVATE PAPER

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Scottish Parliament Information Centre logo

TRANSPARENCY OF LOBBYING, NON-PARTY CAMPAIGNING AND TRADE UNION ADMINISTRATION BILL

This paper was written for the Standards, Procedures and Public Appointments Committee to inform the Committee on the progress of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill in the UK Parliament. The paper limits itself to the lobbying aspects of the Bill (Part 1) and looks at the background to the provisions for a UK register of lobbyists.

COMMITTEE INQUIRIES AND GOVERNMENT PROPOSALS

In 2009, in its inquiry report, Lobbying: Access and influence in Whitehall, the House of Commons Public Administration Committee called for a statutory register, which would include a list of all lobbyists, their clients and a diary of all meetings with "decision makers".

In its Coalition Agreement, published by the Conservative-Liberal Democrat Government in May 2010, the new Government promised to:

“regulate lobbying through introducing a statutory register of lobbyists and ensuring greater transparency.”

In January 2012, the UK Government published a consultation paper, Introducing a statutory register of lobbyists. The paper proposed a register to include those who lobby the UK Government and UK Parliament. The Government also stated that it would be having discussions with the devolved administrations and legislatures, with a view to including them within the scope of the statutory register.

The consultation paper asked questions on keys issues, including:

definition: what lobbying is and how lobbyists should be defined

scope: should trade unions, think tanks and charities be included

information in the register: should it include financial information on the cost of the lobbying

sanctions for non-compliance.

In July 2012, the Government published A Summary of Responses to the Cabinet Office’s Consultation Document “Introducing a Statutory Register of Lobbyists”. The Government received 259 responses, and it reported that the majority of respondents welcomed the

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Government’s commitment to achieve greater transparency in the lobbying industry and were supportive of a statutory register of lobbying interests.

More than half of the respondents (136) suggested that smaller organisations, such as small charities and businesses, and those doing pro-bono work should be exempt from registration.

In response to the consultation the Government stated it would develop revised policy proposals with the intention of publishing a White Paper and draft Bill during the 2012-13 Parliamentary session.

The House of Commons Political and Constitutional Reform Committee held an inquiry on the Government’s consultation paper in 2012. The Committee published its inquiry report on 13 July 2012.

The Committee made a number of recommendations, including that the proposal for a statutory register of third-party lobbyists be dropped in favour of a wider register of anybody lobbying professionally in a paid role, thus covering in-house lobbyists, including those working for law firms, trade associations and think tanks .

UK GOVERNMENT BILL

The Government did not publish a draft Bill, or respond to the Political and Constitutional Reform Committee’s 2012 report. On 17 July 2013, it introduced the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill (Bill 97) in the House of Commons.

Register of lobbyists

Part 1 of the Bill provides for the creation of a statutory register of consultant lobbyists, and would establish the post of Registrar to enforce the registration requirements. Under the provisions of the Bill it would be a criminal offence for anyone who is not registered to carry out consultant lobbying.

The revised explanatory notes, for the Bill introduced in the House of Lords, state that the main defining characteristics of being a consultant lobbyist are that ‘in the course of a business’ (which requires the person concerned to be engaged in a commercial activity, and so therefore excludes things such as the public duties of elected officials) the person makes communications (either in writing or orally):

personally to a UK Government Minister or Permanent Secretary (including specified equivalent positions)

about government policy, legislation, the award of contracts, grants, licences or similar benefits, or the exercise of any other government function such as the exercise of the prerogative

on behalf of another person

in return for payment.

This part of the Bill extends to the whole of the UK with the requirement to register applying to all consultant lobbyists engaged in lobbying UK Government Ministers and Permanent

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Secretaries, regardless of where the lobbying takes place or where the consultant lobbyist is based.

The Bill does not make any provision in relation to those who lobby the Devolved Administrations.

The Government’s Impact Assessment: A Statutory Register of Lobbyists, which accompanied the Bill, stated that the cost of the register would be recovered by a fee charged to each lobbying firm.

SCRUTINY OF THE BILL

Following the Bill’s publication, the Opposition and several parliamentary select committees raised concerns about the lack of consultation or pre-legislative scrutiny of the Bill and the speed with which it was being taken through Parliament. Similar concerns were also raised during its Second Reading in the House of Lords.

Political and Constitutional Reform Committee

One of the critics of the timetable was the Political and Constitutional Reform Committee which launched an inquiry into the ‘Government’s lobbying Bill’ on 18 July 2013, the day after the Bill was introduced.

The Committee received 81 pieces of written evidence and held three oral evidence sessions. It published its report, The Government's lobbying Bill on 5 September 2013, ahead of the Bill’s Committee stage.

The Committee began its report by stating that while it supported:

“the aims of increasing transparency in lobbying, and effectively and fairly regulating third-party campaigning”

it found that Parts 1 and 2 of the Bill were “seriously flawed”. The Committee was critical of the lack of consultation on the drafting of the Bill. It called on the Government to withdraw the Bill and for a special parliamentary committee to carry out pre-legislative scrutiny of the Bill.

For Part 1 of the Bill the Committee recommended:

expanding the definition of a lobbyist to include in-house lobbyists

expanding the definition of what constitutes lobbying to include the provision of lobbying advice

extending the list of people with whom communication, or advising on communication, counts as lobbying to include Senior Civil Servants and special advisors.

In its response to the Committee’s report, published on 8 November 2013, the Government declined to withdraw the Bill. It highlighted the amendments made to the Bill in the House of Commons, which it believed would address the Committee’s concerns on the definitions of non-lobbying activities.

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PROGRESS OF THE BILL

Part 1 of the Bill was considered by a Committee of the Whole House of Commons on 9 September 2013. Government amendments were accepted for Part 1 that mean only those registered for VAT will be required to be listed on the register of consultant lobbyists. As an employee cannot be registered for VAT the requirement, in the Bill as introduced in the Commons, for employees to be registered was removed.

The Labour Party argued that this amendment would mean a loss of transparency as the link between employers and employees would not be made clear within the registration system.

Opposition amendments – to establish a code of conduct, to require disclosure of financial information and to widen the application to all professional lobbyists – were all rejected.

The Government argued that it rejected the Opposition amendment on financial information because the Bill was designed to complement, rather than duplicate, the information on lobbying already published regularly by UK Government Departments.

The Government also rejected a code of conduct as its inclusion in the Bill would lead to full regulation of the industry which the Government believed was not workable by means of legislation.

The only non-Government amendment to be accepted was tabled by the Chair of the Political and Constitutional Reform Committee. This added to the MP exemption in Schedule 1 by providing that parliamentary salaries and allowances will not count as payments for the purposes of Part 1 of the Bill.

The Government gave an undertaking to keep under review the effectiveness of the safeguards for the Registrar’s independence.

The Bill passed its Third Reading in the Commons on 9 October 2013, and was introduced in the House of Lords on the same day (HL Bill 50).

The Bill has completed its Committee Stage in the Lords with four meetings held on 5 and 11 November and 16 and 18 December 2013. There were no amendments accepted during the Committee Stage, on the expectation that the Government would be tabling amendments at the Report Stage.

The Government amendments, in the name of Lord Wallace of Saltaire, were tabled on 7 January 2014. They include changes to Schedule 1 of the Bill.

There are provisional dates, for the Report Stage in the House of Lords, of 13 and 15 January 2014, with a provisional date for the Third Reading of 21 January 2014. The Bill would then pass back to the Commons where any amendments made to the Bill in the Lords will be considered.

COMMITTEE ON STANDARDS IN PUBLIC LIFE

In November 2013, the Committee on Standards in Public Life (CSPL) published Strengthening transparency around lobbying. This report, which was not intended as a

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commentary on the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, followed a review early in 2013 which aimed to apply the Nolan principles to lobbying and to consider how the lobbied and lobbyists can incorporate the principles.

As well as a call for evidence, the CSPL held a seminar with those involved in lobbying. In its report the CSPL concluded that a package of measures is urgently required to deliver a greater culture of openness and transparency around lobbying; provide greater clarity for public office holders on the standards expected of them; and to reassure the public that a more ethical approach to lobbying is actively being applied by all those involved in lobbying.

The report’s recommendations include:

more timely and detailed disclosure about all significant meetings and hospitality involving external attempts to influence a public policy decision. Information should include dates of meetings, details of attendees and meaningful descriptors of subject-matter published within one month on a relevant website in an easily accessible format

disclosure arrangements be widened to cover special advisers and senior civil servants as well as Ministers, Permanent Secretaries and Departmental Boards

public office holders, outside the scope of the Freedom of Information Act (including Members of Parliament, Peers and Councillors), be encouraged to disclose the same level of information, with consideration given to including this requirement in relevant Codes of Conduct

Code of Conduct for MPs be strengthened – a recommendation by the Parliamentary Commissioner for Standards, including:

o extending the lobbying rules to former MPs for two years in respect of approaches to Ministers, other MPs or public officials

o requirement that former MPs register for two years any occupation or employment which involves them or their employer in contact with Ministers, other MPs or public officials

o consideration as to whether Chairmanship of a Select Committee brings with it a particular influence on matters of public policy that justifies the imposition of additional restrictions in relation to conflicts of interests

o explicit provision that Members should not accept all but the most insignificant or incidental gift, benefit or hospitality or payments from professional lobbyists.

Francesca McGrath Senior Research Specialist 8 January 2014

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Standards, Procedures and Public Appointments Committee

1st Meeting 2014 (Session 4), Thursday 16 January 2014

Inquiry into Lobbying – written submissions

Please find attached written submissions from—

Alliance for Lobbying Transparency; Spinwatch; Unlock Democracy; Association for Scottish Public Affairs; Association of Profession Political Consultants Scotland; and Chartered Institute of Public Relations.

Standards, Procedures and Public Appointments Committee January 2014

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WRITTEN SUBMISSION FROM ALLIANCE FOR LOBBYING TRANSPARENCY Introduction The Alliance for Lobbying Transparency (ALT)1 believes that lobbying serves an important function in politics, allowing different interests in society input into policy making, and helping in the development of better legislation. Many of ALT’s members are active lobbyists and see lobbying as an important part of the democratic process. However, we also know that lobbying can subvert democracy, through granting those with the greatest resources privileged access to politicians and undue influence over decision-making. The Need for Change Have there been significant changes over the last decade in the way that lobbying is carried out? Lobbying as an activity has not fundamentally changed over the last decade. Personal contacts and communication with officials remain central to lobbying, as does wider public relations campaigning, particularly through the media. Other, more concerning activities have started to take root in the UK, for example, astroturfing, which is popular in the US and which sees corporations financing campaigns that mimic grassroots activity. However, what appears to have changed is the scale of the activity. Commercial lobbying is a growing industry. PR Week reported in 2012 that agencies focused on public affairs had experienced ‘notable growth’.2 The industry is estimated to have doubled in size since the early 1990s. Relevant to Scotland is the obvious correlation between an increase in legislative and administrative power and growth in lobbying activity. It has been predicted that more London-based lobbying agencies than currently would establish a base in Scotland should the Scottish people vote for independence. Is there a problem or perceived problem with lobbying in Scotland? If so, how can this best be addressed? If not, do steps still need to be taken to address any problem arising in future? Dividing the first question into two parts: first, regarding the perceived problem with lobbying. To date, very few public surveys have focused specifically on attitudes towards lobbying in the UK, and none that we are aware of focus on attitudes in Scotland. However, a number of UK-wide opinion polls and reports show directly, or allude to, public concern over issues of access and influence in politics. Nearly two thirds of respondents to a June 2013 poll, for example, said they saw lobbying as an issue of growing concern.3 Another 2013 survey revealed that 90 per cent of those polled believe that the UK government is run by a few big entities

                                                            1 The Alliance for Lobbying Transparency (ALT) is a coalition of NGOs and trade unions, established in response to members’ concerns about what we see as the growing influence of professional lobbying on policy-making, and the current absence of any public and parliamentary scrutiny of lobbyists’ activities. ALT was formed in September 2007 in response to the launch of the Public Administration Select Committee’s inquiry into lobbying, to which we gave evidence.  2 Top 150 PR Consultancies' fee income bounces back, PRWeek, 3 May 2012: www.brandrepublic.com/news/1129837/ 3 OnePoll survey of 2,000 members of the public published in PR Week, 4 July 2013: www.prweek.com/uk/features/1188888

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acting in their own interest.4 An October 2011 Sunday Times / YouGov poll showed that over 50 per cent of people think lobbyists have too much influence in politics. It also showed that three quarters of people support a register of lobbyists.5 The UK Public Administration Select Committee’s exhaustive inquiry into lobbying concluded:

There is a genuine issue of concern, widely shared and reflected in measures of public trust, that there is an inside track, largely drawn from the corporate world, who wield privileged access and disproportionate influence.6 …The result of doing nothing would be to increase public mistrust of Government, and to solidify the impression that government listens to favoured groups – big business and party donors in particular – with far more attention than it gives to others.7

The lack of transparency in who is lobbying whom and about what is clearly central to the problem. The current chair of the APPC in Scotland claims: “We work ‘behind the scenes’, operating as the eyes and ears of our clients, as a source of information, advice and counsel”.8 Lobbying is essential to a functioning, healthy democracy. However, it is the secrecy with which it is carried out and the lack of public scrutiny of lobbying that presents the central problem. Such secrecy breeds suspicion. This suspicion is further increased in the wake of scandal after scandal reported by the media, which damages the reputation of, and public trust in, our political system. A Register of Lobbyists To what extent will a register of lobbyists address any problem or perceived problem with lobbying? A robust statutory register of lobbying activity would help to remedy the situation by improving knowledge about lobbying and the accountability of those involved. It is an essential first step in helping to make decision-making more transparent and accountable, or in other words, more democratic. To whom should such a register apply? Should it be voluntary or compulsory? How should it be maintained and who should maintain it? What level of information should be on it? Should thresholds be set for registration? If so what should they be? What are the likely cost implications of registration for groups that lobby? A statutory system ALT is convinced that legislation is required and that voluntary measures will never deliver proper transparency. The current, voluntary disclosure system suffers from a lack of scope and information: it reveals only the names of lobbyists and their clients /

                                                            4 Transparency International’s Global Corruption Barometer 2013 surveyed 114,000 people in 107 countries: www.transparency.org.uk/news-room/blog/12-blog/679-global-corruption-barometer-2013 5 YouGov/Sunday Times poll, 23 October 2011: http://ukpollingreport.co.uk/blog/archives/4186 6 Public Administration Select Committee (2009) Lobbying: Access and Influence in Whitehall, p.3. 7 Public Administration Select Committee press release, 5 January 2009 8 Behind the Scenes at the APPC Scotland, www.shepwedd.co.uk/knowledge/?a=3725

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employers; it doesn’t detail which areas of policy are being lobbied on, nor how much money is being spent, both of which are necessary for proper public scrutiny of influence in policy-making. ALT endorses the view of the Public Administration Select Committee in its 2009 report Lobbying: Access and Influence in Whitehall:

In the current climate of public mistrust, voluntary self-regulation of lobbying activity risks being little better than the Emperor’s new clothes. Solutions need to be adapted to different constitutional arrangements and political cultures. In the case of the United Kingdom, where there is a culture of discretion and where deals are traditionally done behind closed doors, an element of external compulsion will be needed to provide for meaningful transparency.

The Scottish Parliament has the opportunity to practically enhance the openness and transparency principles it was founded upon by introducing a statutory register that covers all professional paid lobbyists, whether working as consultants or in-house. Robust definitions are required To capture the majority of the industry requires a robust definition of the activity of lobbying. A lobbyist is then anyone paid to conduct such activities. This is the approach taken by other lobbying disclosure systems around the world. However, it should be noted, that no lobbying register will be able to capture every contact between those who seek to influence public officials. The definition should attempt to capture the vast majority of the most significant lobbying. ALT suggests the following definition: A “lobbyist” is either a paid employee (in-house) or is paid by a client to undertake “lobbying activity”, defined as:

a. Arranging or facilitating contact with “public officials”; b. “Communication” with officials to influence legislation, regulation, or

government policy, and for government contracts and grants; c. All work in support of the above, including supervision, planning and research; d. Financing think tanks for lobbying on a particular issue.

We define “public officials” as: MSPs and their staff; individuals working in government departments, officials in the Scottish Parliament, executive agencies, , quangos and regulatory bodies; and paid or unpaid secondees to government, special advisors, and members of government advisory groups. We define “communication” as: telephone conversations; electronic communication; circulating and communicating letters, information material or position papers; organising events and attendance of events as a lobbyist, meetings (formal and informal), or promotional activities in support of a lobbying position. Thresholds and exemptions We believe that all paid lobbyists above a certain threshold – possibly based on lobbying spend –should register. This would exempt small businesses and smaller charities from registering. Certain obvious activities should also be exempt from registration, including: lobbying by public officials acting in their official capacity; matters between an MSP and an individual constituent; official participation in Parliamentary business; administrative requests made by lobbyists; communication by media workers in the

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course of their work; communication that is made widely and publicly available, such as a speech, article, book, or blog. Disclosure of information To deliver real transparency, ALT thinks that lobbyists should be required to disclose: Name and business address of the registrant, whether company, organisation,

think tank or lobbying consultancy; and the name of any controlling company and any subsidiaries with an interest in the lobbying activity being registered;

Name and business address of the client for whom lobbying activity is being undertaken:

o In the case of consultancy a separate filing should be made for each client;

o In the case of in-house lobbying, registrants should put ‘self’; Coalitions, detailing the name of each individual company or organisation

member; Name of individuals defined as “lobbyists”; Information on any public office held by the lobbyist in the past 5 years; Public body being lobbied; Name of public official with whom contact or communications have been

made (senior civil servant and above); Summary of what is being lobbied on, including specific (proposed)

legislation, regulation, policy, contract, grant etc; Description of communication techniques used, for example, meetings or

written communications. This should include any additional ‘third party’ lobbying, such as grassroots mobilisation of the public or commissioned reports from think tanks;

Money spent on lobbying (a good faith estimate of expenditures made on “lobbying activities”).

Financial disclosure is fundamentally necessary to allow the public to judge the significance of the lobbying activity taking place. It would also show trends in lobbying spend, any disparities in lobbying resources, for example, between civil society groups and business, as well as the investment in lobbying made by companies who are seeking government contracts. Businesses make a strategic investment in lobbying and the financial benefits to companies from lobbying are starting to be quantified. For example, a study by the Cato Institute in the US estimates that a lobbying spend by American corporations of about $3.5 billion per year results in business subsidies valued at about $90 billion a year.9 The Economist also reports that an index based on the amount of lobbying that American firms do has outperformed the broader market since its creation in 2008, “comparable to the returns of the most blistering hedge fund".10 Registrar ALT believes the register should be run by a body wholly independent of the government and the lobbying industry. ALT strongly believes that the register should be publicly funded, not financed by lobbyists. Lobbying is a democratic right and

                                                            9 Steven Strauss, Harvard University, Business Insider, 25 November 2011. 10 The Economist, Money and politics, 1 October 2011.

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there must be no financial barrier to participation, especially if the register covers all lobbyists as we propose. What sanctions should there be for failure to register lobbying activity? How will the register sit alongside the UK register? How will compliance be monitored? It is essential that the body operating the register should be given sufficient powers to investigate and take court action. Complaints should be directed to and processed by the register’s operator. Registrants should be given a reasonable period to respond to any complaint and/or correct a ‘defective filing’ before any other action is taken. Penalties for failure to comply with the new rules should include fines, and the possibility of criminal prosecution for more serious offences, like knowingly and corruptly failing to comply. A Scottish lobbying register should be run independently of the proposed UK register. While there is no direct comparison with other countries, in the US and Canada federal registers exist alongside state level registers. Lobbyists routinely sign up to both. What are the implications of a register for (a) the Parliament, (b) MSPs, (c) organisations that lobby and (d) Ministers and civil servants? The key implication for Parliament and MSPs from having a robust statutory register of lobbyists is that far more information than is currently available will be in the public domain on who, outside of Parliament, is influencing decision-making. This will enable MSPs to better scrutinise decisions, leading to greater accountability in government. The benefits include improving trust in government and the reputation of the industry in the eyes of the public. With regard to Ministers, a register of lobbyists is perhaps not a comfortable thing for government, much like Freedom of Information law. But it is a necessary measure for dealing with declining public trust. Other measures Should there be a Code of Conduct for lobbyists? Should it be statutory or voluntary? A number of voluntary Codes of Conduct currently exist in the lobbying industry. However, adherence to these codes is not monitored and on a number of occasions, seemingly obvious breeches of the Codes have not led to penalties against lobbyists. ALT believes that a statutory code of conduct may help clarify the norms and standards of behaviour required to comply with the disclosure obligations of a lobbying register. A code of conduct should reflect current best practice and give clear expression to the core principles and spirit of the legislation. Such a code would need to be proactively promoted among those groups and individuals covered by a lobbying register. ALLIANCE FOR LOBBYING TRANSPARENCY JANUARY 2014

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WRITTEN SUBMISSION FROM SPINWATCH The Need for Change: have there been significant changes over the last decade in the way that lobbying is carried out?

Since our original research on the development of the lobbying industry in Scotland in advance of devolution and during the first session of the Parliament1, it appears to us that there has been a bedding down of relations between lobbyists and the Scottish Parliament. Lobbying is seen as a normal and legitimate part of the democratic process. It is nevertheless quite difficult to establish with any certainty how the practices and techniques used in the organised lobbying of the Scottish Parliament may have changed in the last decade, as lobbyists are often reluctant to openly discuss or publicise the precise tactics and mechanics of how influence is brought to bear on political policy and decision making. A register of lobbying could address this gap in public knowledge and scrutiny about how lobbying operates, depending on the kinds of information lobbyists are required to disclose in a lobbying register.

Is there a problem or perceived problem with lobbying in Scotland? If so, how can this best be addressed? If not, do steps still need to be taken to address any problem arising in future?

We believe that the framing of this question slightly misses the point in terms of why lobbying disclosure is not only desirable, but necessary. There is a very compelling positive case for lobbying transparency which is often lost in the special pleading by those in the lobbying business that usually follows suggestions for reform in this area:

Lobbying transparency can benefit the public, the media, elected representatives, public servants and those engaged in lobbying. Lobbying transparency promotes scrutiny, enhances accountability, contributes to informed public debate and can encourage citizens and civil society groups to engage with decision makers.

Register of lobbyists: To what extent will the introduction of a register of lobbyists address any problem or perceived problem with lobbying?

A lobbying register will only help address the secrecy associated with lobbying if it ensures information is put into the public domain in a timely manner, and if the information disclosed enables scrutiny and accountability. It is important that any Scottish lobbying disclosure system is sensitive to local political culture, but equally that it is firmly founded on key principle of openness and transparency, and a presumption toward timely and meaningful disclosure.

To whom should such a register apply?

We believe that it is vitally important that registration is based on clear principles and that special exemptions for particular categories of lobbyists are avoided. Any group

                                                            1 See Schlesinger, P., Miller, D. and Dinan, W. (2001) Open Scotland? Journalists, Spin Doctors and Lobbyists, Edinburgh, Polygon. 

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or organisation that devotes a significant amount of time or money to influencing decision makers in the public sector should be registered. The most commonly raised objections to inclusion in a lobbying register in Scotland tend to come from non-profit organisations, charities, and lawyers. The voluntary sector do not like to see themselves as lobbyists, and make a significant and legitimate distinction between advocating for the relatively powerless in society rather than representing powerful private interests. By contrast lawyers appear to consider that they have some form of professional privilege that excludes them from transparency obligations. In our view all those engaged in lobbying advice or advocacy should be subject to the same disclosure requirements. The creation of exceptions will in all likelihood lead to those who wish to avoid transparency exploiting these exceptions. For example, if a register of lobbyists is created in Scotland, but lawyers are exempted from this, it is not unreasonable to assume that those individuals and organisations who wish to avoid lobbying disclosure would retain lawyers offering public affairs services and in so doing, circumvent the spirit of the lobbying register.

Concerns have been raised about creating barriers in the way of individuals and organisations interested in participating in public affairs. It is also clear that the intention is to bring transparency to the field of lobbying by making the activities of professionalised lobbying more open and transparent. It therefore follows that small community groups who do little lobbying, and engage in lobbying or advocacy on an ad hoc basis, need not be subject to the requirements of a disclosure or registration system. The key question which needs to be decided is where to draw the line between small scale lobbying or ad hoc advocacy and the systematic and professionalised lobbying efforts of organised interests. Concerns expressed about the creation of a two-tier lobbying system seem to us to be misplaced. Instead, it is quite possible that a lobbying register can have a positive impact on participation, by removing some of the mystique associated with lobbying, showing individuals and groups how lobbying is organised and potentially encouraging them to participate in the policy process.

Should it be voluntary or compulsory?

Any lobbying disclosure system, to maintain credibility and respect, must be mandatory. Voluntary or self-regulatory regimes are inherently problematic – they simply cannot capture those lobbyists who wish to operate in secret or selectively disclose information about their activities. Those wishing to avoid scrutiny can simply ignore self-regulatory systems and continue to practice as lobbyists. The voluntary system recently introduced by the European Commission and European Parliament suffers from serious and widespread non-compliance, and weak disclosures by many of the organisations who have voluntarily declared lobbying information.

How should it be maintained and who should maintain it?

A lobbying register needs to be updated and maintained on a regular basis in order to function as a useful tool that enables democratic scrutiny and accountability. Quarterly reporting seems to be a fair and proportionate obligation on those who are required to register. Requiring lobbyists to update their disclosures every three months means that record keeping is routinised, register accuracy and arguably the administrative burden of compliance are actually reduced. Disclosure is not simply a one-off annual chore, but a standard and recurring function of professional life. As

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the Public Administration Select Committee concluded after their review of lobbying in the UK: ‘If sensibly framed, regulation would simply require those involved in the process of lobbying to provide information which should already be in their hands.2 Disclosure should be done electronically, and filings should be fully searchable, sortable and capable of being downloaded from a public website. The key characteristics of whatever body is charged with overseeing a lobbying register are that it is independent of government and independent of the lobbying industry.

What level of information should be on it?

A disclosure system needs to make relevant information about the scale and scope of lobbying available to scrutiny. In effect this means that details like the names of lobbyists, the resources devoted to lobbying, the targets of lobbying, and the issues being lobbied on need to be disclosed. In particular, who is undertaking lobbying activities, and what financial resources are devoted to lobbying are fundamental to a credible lobbying disclosure system.

With careful crafting, and taking into account the particularities of the Scottish political scene, it should be possible to create a lobbying register that greatly enhances transparency, and makes a concrete positive contribution to equality. This can be achieved on two connected fronts: equality of information and equality of access. Research on the introduction of the lobbying disclosure regime in Canada found that one of the key early beneficiaries of the legislation was elected representatives. The lobbying register allowed new information about the breadth and focus of lobbying to be put in the public domain, and gave politicians an improved overview of where pressure was being brought to bear. This equality of information can clearly have impacts on equality of access as well, given that a reliable lobbying register allows politicians and public servants to more easily avoid giving privileged access to particular interest groups and try to ensure balance and equity in their interactions with outside interests.

Should thresholds be set for registration? If so what should they be?

Yes. Please see the submission of the Alliance for Lobbying Transparency for detailed recommendations on this point.

What are the likely cost implications of registration for groups that lobby?

Compliance with a lobbying register need not be an onerous or costly exercise. It is very difficult to answer this question without a clear understanding of the scope and reporting requirement of a proposed registration system. Nevertheless, some observations based on experience elsewhere do seem appropriate. The European Transparency Register – a voluntary system – has very few costs associated with disclosure, but equally, the quality and detail of the information therein is very questionable. Part of the problem of compliance with that system is arguably the amount of discretion afforded to those registering. Different organisations in some sense pick and choose how much they wish to disclose about their activities. In contrast, the US Federal System is much more prescriptive and registrants need to comply with detailed regulations and guidance on how to present their lobbying

                                                            2 Public Administration Select Committee (2009), p. 63. 

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disclosures. However, there is evidence that the costs of compliance ever with the detailed US federal system are not significant and are easily absorbed by the organisations covered.

What sanctions should there be for failure to register lobbying activity? How will the register sit alongside the UK register? How will compliance be monitored?

Please see the submission of the Alliance for Lobbying Transparency for detailed recommendations on sanctions and compliance. In terms of monitoring it is very important that sufficient resources are devoted to checking the quality and accuracy of filings, and ensuring that erroneous submissions are quickly identified and corrected. This means that whatever body is responsible for a lobbying register has the capacity to monitor submissions, audit filings and investigate registrations, either proactively or reactively if complaints are made about the quality or veracity of disclosures. There are exemplars of good practice in terms of openness and transparency in Scotland, not least the functions of the Office of the Scottish Information Commissioner, which has educational, investigative and enforcement powers. Such a mix would be well suited to the task of ensuring compliance, respect and trust in a Scottish lobbying transparency register.

At the time of writing the proposed UK register is still taking shape at Westminster. However, we would suggest that the Scottish Parliament does not follow the Westminster model, which seems to be driven by an intent to stifle civil society campaigning and engagement, while largely ignoring the power and privilege of large corporations with very significant in-house lobbying capacity. A Scottish lobbying registration system should reflect the founding principles of the Scottish Parliament, promoting openness and participation, and based on equity and equal opportunities.

What are the implications of a register for (a) the Parliament, (b) MSPs, (c) organisations that lobby and (d) Ministers and civil servants?

This question cannot be answered in detail in advance of knowing the form and character of a lobbying register. Nevertheless, in principle, a number of key implications flow from the creation of a lobbyists register. For Parliament it will likely be necessary to resource whatever body is set up to oversee and maintain the register, and primary legislation will be needed to create the powers for the office that is responsible for the register. MSPs and their staff may be required to record and formally disclose contacts with lobbyists. They will also benefit from getting a clearer picture of where and how influence is bearing brought to bear in the Scottish political system through the information disclosed in a lobbying register. Organisations who lobby will be required to declare their lobbying activities and details of the resources they devote to influencing the political process. There will be a general expectation that the secrecy that currently surrounds lobbying will be replaced by a culture of openness and transparency. This point equally applies to Ministers in the Scottish government and public servants working within the executive. Diary and record keeping of covered contacts with outside interests should be disclosed.

With careful drafting it is possible to create a disclosure system that is not too costly, bureaucratic, or onerous to comply with. Nevertheless, it is important that a register

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is not simply a ‘tick-box’ system that does not significantly enhance transparency and accountability. Such a register would not command respect of those covered, or the trust of those outside of the lobbying business, such as the media and interested member of the public.

DR WILLIAM DINAN & PROFESSOR DAVID MILLER3 SPINWATCH JANUARY 2014

                                                            3 William Dinan, Senior Lecturer, School of Social Sciences, UWS & Professor David Miller, Department of Social & Policy Sciences, University of Bath. We are both founders of Spinwatch, an independent non‐profit making organisation promoting greater understanding of the role of PR, propaganda and lobbying. We are also founder members of the Alliance for Lobbying Transparency in the UK (ALT UK) and the Alliance for Lobbying Transparency and Ethics Regulation in Europe (ALTER EU). 

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WRITTEN SUBMISSION FROM UNLOCK DEMOCRACY About Us

Unlock Democracy is the UK’s leading campaigning organisation for democracy, rights and freedoms. A grassroots movement, we are owned and run by our members. In particular, we campaign for fair, open and honest elections, a stronger Parliament and accountable government, and a written constitution.

1. Have there been significant changes over the last decade to the way that lobbying is carried out?

The size of the UK lobbying industry - now worth £2bn - has steadily increased over the last decade. There are good reasons to believe that Scotland has attracted more than its fair share of that growth. As devolution has matured, the Scottish Government and Parliament have become more assertive, and therefore a more important arena for lobbying. This trend is only likely to continue with the prospect of further changes in the future. The lobbying industry has also diversified, with lobbying increasingly done by think tanks, in-house teams, and law and accountancy firms as well as more traditional public affairs agencies.

2. Is there a problem or perceived problem with lobbying in Scotland? If so, how can this best be addressed? If not, do steps still need to be taken to address any problem arising in future?

Although Scotland has not seen lobbying scandals on the same scale as Westminster, this should not be seen as an indication that Holyrood is immune. Many of the same issues apply in Scotland: for example, around the funding of cross-party parliamentary groups,1 or lobbyists with parliamentary passes.2

Lobbying is an important part of the democratic process which often improves public policy, but it needs to be transparent. A comprehensive register of lobbyists would be the best way to create a culture of transparency and probity in lobbying. Scotland has a chance to make sure that the scandals that have undermined trust in Westminster are not repeated here. However, transparency in lobbying should not be seen simply as a preventative measure; it should be a goal in itself. The more information that is available to the public on who is involved in politicians’ decision-making processes, the better they will be able to hold them to account.

3. To what extent will the introduction of a register of lobbyists address any problem or perceived problem with lobbying?

A comprehensive register of lobbyists would bring information about who is lobbying, about what, and how much money they are spending on it into the public domain. This would allow the public to make judgements on whether there has been undue

                                                            1 http://www.scotsman.com/news/politics/top-stories/msps-come-clean-after-breaking-lobbyist-rules-1-2944883 2 http://www.heraldscotland.com/row-as-lobbyists-and-party-donors-access-all-areas-with-holyrood-visitor-passes-1.827838

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influence on the decisions of politicians and government. Transparency would motivate politicians and lobbyists alike to act, and be seen to act, properly.

4. To whom should such a register apply? Should it be voluntary or compulsory? How should it be maintained and who should maintain it? What level of information should be on it? Should thresholds be set for registration? If so, what should they be? What are the likely cost implications of registration for groups that lobby?

We believe that to ensure transparency, the lobbying register should be as comprehensive as possible. Lobbying is a legitimate activity conducted by a wide variety of organisations, from private companies to campaign groups and charities. The register should be aimed at all those who are paid to influence legislation, regulation, policy or government contracts, rather than targeting certain types of organisation that lobby.

Without a statutory register, coverage will not be comprehensive, nor will there be a significant advance in transparency. Self-regulation by the lobbying industry has repeatedly failed; existing registers have patchy coverage, and contain little information - typically only the names of lobbyists and their clients. Voluntary registers have also failed to ensure information on the register is accurate and up to date.3 Despite numerous relaunches, even the chair of the UKPAC lobbying register admits that its latest iteration remains underfunded and lacks coverage.4 These failures cannot be remedied outside a statutory register.

We recommend that the lobbying register be overseen by a body independent of both government and the lobbying industry. This is the only way to ensure public confidence in the register and avoid any conflict of interest when investigating breaches.

A lobbying register must offer the public enough information to draw conclusions about how decisions are being made in government. The essential components of any register include:

The organisation lobbying and the names of individual lobbyists Information on public offices held by lobbyists in the past 5 years (“revolving

door”) The public body being lobbied and the names of the officials lobbied A summary of what is being lobbied on – legislation, policy, contract &c An estimate of the amount of money spent on lobbying

Financial information is vital to understanding the scale and balance of lobbying activities, yet has never been included on any voluntary register. We understand why commercial lobbyists are reluctant to declare financial information, which could potentially be used by competitors to gain unwelcome insight into their commercial strategy. We believe that with a banded cost system, firms could make good faith

                                                            3 http://www.prweek.com/article/1059201/mp-calls-statutory-regulation-lobbyists-ukpac-register-riddled-errors 4 http://www.prweek.com/article/1118110/ukpac-releases-new-version-register-following-industry-criticism

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estimates of costs at a level of detail that would be informative for the public without prejudicing their commercial interests. Financial information should be identified on the register as an unverified estimate; however, we believe that estimates would still be valuable and that lobbyists would have an interest in improving their accuracy.

We believe in a comprehensive register. However, to ensure that the smallest organisations are not subject to disproportionate bureaucratic burdens, there should be a spending threshold for registration. Organisations which have fewer than one full-time equivalent employee working on lobbying, or which spend <£6,000 per quarter on lobbying should be exempted from disclosure.

We believe that the level of disclosure we recommend would not impose significant costs for compliance, nor would it act a barrier for participation for small organisations. Unlock Democracy have completed a sample quarterly filing as an example of how the register would impact small campaigns.5

5. What sanctions should there be for failure to register lobbying activity? How will the register sit alongside the UK register? How will compliance be monitored?

We believe that there should be a full range of sanctions available proportionate to the scale and intent of non-compliance with the register. These could include public warnings for minor breaches, fines for more serious offences, and criminal penalties or temporary suspension from the register for the most serious non-compliance. The body which oversees the register must have investigatory powers to monitor compliance so that they can apply sanctions appropriately.

The proposed UK register, which only covers those consultant lobbyists who meet ministers or senior civil servants on behalf of their clients, will cover a tiny proportion of organisations which lobby. The information that will be provided on the register is limited to identifying the client lists of consultant lobbyists. The UK register will not improve transparency in lobbying; in fact, it could even reduce the information that is available to the public. Scotland has an opportunity to establish a truly comprehensive register, which covers the whole range of lobbying activities and provides information that genuinely adds to transparency.

6. What are the implications of a register for (a) the Scottish Parliament, (b) MSPs, (c) organisations that lobby, and (d) Ministers and civil servants?

The register will help parliamentarians and civil servants carry out their duties in a proper and transparent manner. For example, they will be able to use information on the register to avoid giving privileged access to certain groups. MSPs should not fall under the register themselves, as their business is not lobbying but the public duty of representing their constituents.

                                                            5 Cost estimates are derived from estimates of staff time, publications and postage costs

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We do not believe that a register will discourage organisations from lobbying. In 2009, the Public Administration Select Committee noted:

The advantages of being able to lobby decision-makers on issues of concern are so obvious, that only the most restrictive or onerous regulation could dissuade interested parties from making their views known to Government.6

In fact, greater lobbying transparency may help organisations which lobby by providing a level playing field, with no access to government behind closed doors.

7. Whether other changes could be made to improve transparency in lobbying in Scotland?

Some organisations have suggested that publishing the diaries of ministers, MSPs and senior civil servants would provide an effective alternative to a comprehensive register of lobbyists. While we would welcome the publication of these diaries, this is no substitute for a lobbying register. These diaries would contain very limited information about lobbying activities. We would know who has met ministers and MSPs in order to lobby them; at most, publication could also include the topic of the meeting. Diaries would only cover meetings in person, not telephone or electronic communications. Ministers, MSPs and senior civil servants are not the only decision-makers, or even necessarily the most important lobbying contacts. Furthermore, these diaries would not include information on the cost of lobbying, so the public would not be able to properly assess the scale and extent of lobbying campaigns. Publishing ministers’, MSPs’ and civil servants’ diaries would produce only very limited transparency.

The existing publication schemes for ministers’ diaries also raise questions about how transparent this would be in practice. Both the Scottish7 and the UK government8 already publish ministers’ diaries. However, the records are not kept sufficiently up to date to be useful for scrutinising lobbying in real time; the latest Scottish data as of 06/01/14 dates from March 2013. Descriptions of meetings are often opaque: “various” or “regular meeting” is typical.9

8. What, if any, changes should be made to Section 5 of the Code of Conduct for Members of the Scottish Parliament? 9. Should there be a Code of Conduct for lobbyists? Should it be statutory or voluntary?

We believe that the rules regarding lobbying for MSPs are broadly in the right place. The introduction of a comprehensive lobbying register will make potential breaches of the rules easier to identify. We believe that there should be a parallel Code of Conduct for lobbyists which would impose a duty to uphold transparency and openness in all dealings with government. The lobbying industry has been receptive to the idea of a code, but existing voluntary codes have lacked effective enforcement to deal with breaches. Whether the code is voluntary or statutory, it should be developed with input from the full range of lobbying organisations. One model might                                                             6 Public Affairs Select Committee, Lobbying: Access and influence in Whitehall, 2009, p. 63 7 www.scotland.gov.uk/About/People/14944/Events-Engagements/MinisterialEngagements 8 http://goo.gl/34jHu5 9 See http://unlockdemocracy.org.uk/blog/entry/andrew-lansleys-diary

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be for the registrar to certify a voluntary code, reviewing compliance on a regular basis.

UNLOCK DEMOCRACY 7 JANUARY 2014

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WRITTEN SUBMISSION FROM ASSOCIATION FOR SCOTTISH PUBLIC AFFAIRS

The Association for Scottish Public Affairs (ASPA) is the representative body for the public affairs sector in Scotland. It was established in 1998 by public affairs and policy practitioners in Scotland. It has a diverse membership, drawn from businesses, charities, consultancies, membership organisations, trade unions and trade associations. ASPA members agree, as a condition of membership, to abide by a code of conduct (see http://www.scottishpublicaffairs.org.uk/), which governs their engagement with the Scottish Parliament and Government and its agencies and aims to reflect best practice and professional ethics. ASPA members may also have to adhere to standards and codes of conduct set within their own organisations or by professional bodies. Lobbying – done ethically – is both a fundamental right in a democratic society, and makes for better government. Some of our members operate across the UK, and will therefore engage with UK-wide institutions, and with those in Northern Ireland and in Wales. Those members whose activities are specific to Scotland also engage with UK government institutions, for example with MPs representing Scottish constituencies, or with officials in departments dealing with matters currently reserved to Westminster. Q1 Have there been significant changes over the last decade in the way that lobbying is carried out? Yes - we have seen the emergence of indigenous lobbying designed around the Scottish Parliament replacing models based on Westminster or other Parliaments. There has been an increase in lobbying activity and the number of organisations engaging with the Scottish Parliament, Scottish Government, its agencies, local authorities, and other public bodies. We have seen an increase in the number of in-house lobbyists as well as consultants. Lobbying by representative bodies is more extensive across the public, private and third sectors, including trade unions, charities, and faith organisations. This lobbying activity reflects the areas and priorities of Scottish Government expenditure ie. health, local government, justice, and education. Non-Governmental Organisations (NGOs) and third sector organisations account for a significant proportion of lobbying in Scotland. Lobbying is a multi-media industry which has innovated creatively through using new ideas and technology for engagement and campaigning with the result that much more lobbying is carried out electronically, including social and mainstream media, as opposed to in person or using published materials.

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Lobbying is increasingly an activity that is integrated with a wide range of other communications disciplines, and forms part of organisations' wider communications strategies. There has been a steady improvement in engagement from Scottish Ministers, MSPs and public sector officials as they have recognised how working with lobbyists can improve their knowledge and understanding of subjects they are expected to legislate on. There is more senior management involvement from organisations lobbying in Scotland. The number of channels for lobbying has also increased including social media, Cross Party Groups, Parliamentary receptions, MSP briefings, discussion dinners, the Scottish Parliament Business Exchange, the Scottish Politician of the Year Awards, and the Business in the Parliament conference. Political parties have also developed their engagement with lobbyists through party conferences and other events which generate revenue for those parties. Q2 Is there a problem or perceived problem with lobbying in Scotland? If so, how can this best be addressed? If not, do steps still need to be taken to address any problem arising in future? No - there is a lack of understanding of lobbying and what is involved in public affairs. We all want legislators to consider the Bills and regulations before them on the most-informed basis possible. Our members are more likely to be informing rather than influencing legislators. We have seen no evidence of inappropriate lobbying and are not aware of any disciplinary measures under existing codes of conduct which illustrate a problem with lobbying in Scotland. Misperceptions around lobbying can best be addressed by lobbyists and those they lobby being transparent in their activities and demonstrating how their work informs and educates those legislating in Scotland so that the public benefits from the highest possible calibre of legislation being passed by the Scottish Parliament. There are responsibilities on both lobbyists and those being lobbied to ensure there is no impropriety. MSPs can help improve the public understanding of lobbying and Parliamentary work by recording, publishing and discussing details of their meetings to illustrate how they are lobbied and by whom. Q3 To what extent will the introduction of a register of lobbyists address any problem or perceived problem with lobbying? We believe a register of lobbyists would be of very limited value. We do not see how a register of lobbyists will help the public to understand or quantify lobbying activity. Accessibility is one of the founding principles of the Scottish Parliament and we

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would oppose any measure to treat lobbyists differently to any other member of the public looking to engage with the Scottish Parliament. Q4 To whom should such a register apply? Should it be voluntary or compulsory? How should it be maintained and who should maintain it? What level of information should be on it? Should thresholds be set for registration? If so what should they be? What are the likely cost implications of registration for groups that lobby? We do not accept the case for a register of lobbyists. If a register was introduced then it would be essential for it to establish a level playing field for all organisations and individuals with no exemptions. What incentive would there be to subscribe to a voluntary register? There is a risk that a voluntary register would only attract those already committed to best practice with no incentive for anyone in the future who might not adopt best or good practice to subscribe. Establishing a register would also risk creating a two-tier system with registered and unregistered lobbyists. Would registered lobbyists receive preferential treatment from those they seek to lobby on the basis they are approved or licensed by a register? Would MSPs, Ministers and public officials continue to meet with unregistered lobbyists? If a register was introduced it would have to be maintained to the highest standards of data protection and managed by a trusted independent body. It should not be maintained by the Scottish Parliament or Government. It should only hold limited information on lobbyists so their identity can be verified to provide transparency and reassurance to those they seek to engage with. The only relevant threshold for registration would be the act of lobbying. Thresholds based on the number of people involved in lobbying, the number of meetings, events or other contact held would create loopholes that would record some acts of lobbying but not others, distorting the level playing field we would propose. Financial thresholds are not an accurate or acceptable measure of lobbying activity. They would divulge confidential financial information but not provide a reliable measure of value for lobbying activity as they do not recognise market forces and other pricing or budgetary factors. With the transparent nature of the Scottish Parliament described above, large financial investment in lobbying does not improve access. Equally, very effective information and lobbying campaigns can be carried out with minimal financial commitment. There is a responsibility on those being lobbied to take appropriate action to verify the identity and interests of anyone seeking to lobby them, as well as the veracity of the information they are being provided in the same way they would any other source of information. They should as a matter of first principle ask lobbyists who they are, who they represent, and what they want to discuss before any engagement with them. They could also ask what, if any, code of conduct those lobbyists subscribe to, or if they are governed by a professional body. If they do not receive satisfactory answers then they may wish to consider whether it is appropriate to meet or speak with those lobbyists.

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Private organisations and clients of consultant lobbyists are entitled to commercial confidentiality and any register would need to accommodate this. There should be no preferential or discriminatory treatment for lobbyists. Our members and other lobbyists should be treated just like any member of public, with no restriction on our trade or activity. Nor should lobbyists be granted any preferential access over that granted to members of the public. The cost of any register should be borne by the public if it is for public benefit. A lobbyist levy imposed on those who register could be interpreted as payment for access to public figures which is something ASPA fundamentally opposes. . Q5 What sanctions should there be for failure to register lobbying activity? How will the register sit alongside the UK register? How will compliance be monitored? The question of sanctions for failing to register lobbying activity is a difficult one. We would have grave reservations over any sanction which would deprive people of the right of access to MSPs, Ministers or public officials. The UK Government's proposed register of lobbyists is flawed and should not be a model for any Scottish register. Compliance would depend on a number of factors including: the definition of a lobbyist and the act of lobbying; the identification and nomination of someone as a lobbyist or an act of lobbying; and the use and observance of a register by those being lobbied. As some of our members engage with the Scottish and UK Parliaments and Governments, we would be concerned about the potential burden of adhering to two completely separate regulatory regimes. It is especially concerning as these potentially statutory registers appear to be developing with very limited reference to one another, concentrate on different branches of state, yet have the potential to significantly overlap in terms of regulation and compliance. Q6 What are the implications of a register for (a) the Parliament, (b) MSPs, (c) organisations that lobby and (d) Ministers and civil servants? The principle of access to the Scottish Parliament is a fundamental one and ASPA would not accept any scheme which discriminated either in favour of or against lobbyists. The Scottish Parliament would need to establish fair, appropriate and transparent procedures to accommodate a register. The MSPs' code of conduct would need to be reviewed to reflect a register and provide guidance and regulation on MSPs responsibilities in their engagement with lobbyists. Organisations and individuals that lobby may be deterred from engaging with Parliament, MSPs and Government if the register was too restrictive or expensive. The codes of conduct for Ministers and public officials would also need to be reviewed to provide guidance and regulations in relation to a register.

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Q7 Whether other changes could be made to improve transparency in lobbying in Scotland? What, if any, changes should be made to Section 5 of the Code of Conduct for Members of the Scottish Parliament? The most effective way to demonstrate transparency would be for those who are being lobbied to register those acts of lobbying, as opposed to placing the responsibility on or giving the discretion to the lobbyists. The Code of Conduct could be amended to require Members and their staff to record external meetings and these could be published on a regular basis to provide transparency. Details of constituent meetings could be redacted but all other diary appointments should be made available. This requirement could also be extended to meetings MSP staff have with any third parties on anything other than constituency and constituent's business. The Code could also be amended to replace the references to "commercial lobbyist" with "lobbyist" in sections 5.1.3, 5.1.4 and 5.1.6 as this distinction could imply that organisations which employ in-house lobbyists are exempt. This would achieve consistency with section 5.1.5. The committee may also consider a review of the thresholds for declaration of interests and gifts to Members alongside the rules on paid advocacy and payment in kind. The publication of Ministerial engagements should be reviewed to set a consistent level of detail across the different Ministers entries, and the information should be published as set out on the Scottish Government website no later than three months in arrears. Fundamental considerations in any changes should be how they improve Members engagement beyond Parliament, and whether they may limit access to Members and the Parliament. Q8 Should there be a Code of Conduct for lobbyists? Should it be statutory or voluntary? ASPA operates a code of conduct which its members adhere to and which is publicly available on the ASPA website. ASPA also supports the guiding principles for public affairs practitioners established by the CIPR, PRCA and APPC in 2007. ASPA remains to be convinced of the case for a statutory code of conduct for lobbyists, and the benefits of a statutory code of conduct. Any code of conduct for lobbyists should be integrated with and supported by changes to the codes of conduct for MSPs, Ministers and public officials. ASSOCIATION FOR SCOTTISH PUBLIC AFFAIRS 9 JANUARY 2014

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WRITTEN SUBMISSION FROM ASSOCIATION OF PROFESSION POLITICAL CONSULTANTS SCOTLAND

INTRODUCTION APPC Scotland welcomes the Committee inquiry into lobbying and the opportunity to submit our views. 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. Our response seeks to reflect the views expressed by our members following the Committee’s call for evidence on its inquiry, and earlier in response to Mr Findlay’s consultation paper. In short, APPC Scotland would be supportive, in principle, of a statutory register in Scotland, so long is it clearly functioned to enhance openness and transparency and improve standards in a way that could not be otherwise achieved, so long as it covered all lobbying activity undertaken in a professional capacity, and so long as the information it contained was verifiable. It would also need to be able to achieve more, and be more cost effective, than the simpler solution of making the relevant sections of or entries in diaries of Minister, Civil Servants and MSPs publically available. RESPONSES TO QUESTIONS Have there been significant changes over the last decade in the way that lobbying is carried out? Yes, there have been a number of significant changes. These include:

A significant growth in the amount of in-house lobbying. Communications consultants now serve more often as a source of additional capacity to in-house communications teams rather than functioning as the only or primary mechanism for such activity.

The consultancy sector has become much more inter-disciplinary in nature. Public Affairs and Political Communications are now much more integrated within the range of services provided by PR, media, stakeholder, legal and planning communications consultancies. Similarly, those consultants and consultancies focusing primarily on Public Affairs and political communications have developed a more diverse range of services.

The focus of ‘lobbying’ activity has changed significantly and is now focused more on the organisation of profile raising events and exhibitions rather than primarily on ‘direct’ communication.

In recent years, there has been a significant increase in the number of independent Public Affairs and Political Communications consultants.

There has also been a significant increase in the number of former politicians establishing themselves within the consultancy sector.

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There has been a significant increase in the proportion of consultancies that see the importance of operating within the framework of a Code of Conduct. Twenty years ago the APPC had only 6 members, in 2007 there were 36, currently there are 80 across the UK.

Is there a problem or perceived problem with lobbying in Scotland? If so, how can this best be addressed? If not, do steps still need to be taken to address any problem arising in future? We do not feel there is a perception of any problems around lobbying in Scotland, though there have been calls for more transparency. If we are to progress with any proposals for a register, it is important to recognise that scandals around actual lobbying activity have been extremely rare in the UK, and that most of the scandals which have arisen in the last twenty years – primarily at Westminster - have been about broader issues of ethical standards and behaviour, most of which have not involved actual lobbyists. Furthermore, none of the issues that have arisen over the last twenty years could necessarily have been prevented by the existence of a register. To this extent, any register needs to be conceived of as primarily functioning to enhance openness and transparency, rather than addressing existing, perceived or prospective problems around lobbying or issues around ethical standards. This is not to say that there are not potential issues to be addressed, or that there is any room for complacency. With specific regard to consultancies, there is a low barrier to entry into the sector – anyone can establish themselves as a consultant. Whilst membership organisations such as APPC do require ongoing training and compliance with the Code of Conduct, membership is voluntary and there are a number of consultants who operate outside the framework of a recognised ethical code, and without any form of training. For our part, the APPC has continuously sought to enhance standards throughout the life of the Scottish Parliament, by constantly reviewing and tightening the Code of Conduct and by actively seeking to increase the number of consultants and consultancies who sign up to and operate within the its framework. It is our expectation that a register would encourage more communications professionals to seek membership of a suitable association. To what extent will the introduction of a register of lobbyists address any problem or perceived problem with lobbying? As indicated above, a register of lobbyists in itself would not address any perceived or potential problems and would not necessarily lead to greater transparency. If a statutory register were to be brought forward, APPC Scotland would be more supportive of a register of lobbying, rather than a register of lobbyists. Our considered opinion is that there is much greater clarity over what constitutes an act of lobbying, and a register focussing on lobbying activity would better function to enhance openness and transparency.

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In this regard, we are in agreement with the original objective outlined in Neil Findlay’s proposed Bill, that – if there is to be a register at all – it should be one which provides information on who is lobbying whom, and on what issues. To whom should such a register apply? Should it be voluntary or compulsory? A statutory register should be compulsory and 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. Whilst it is often public affairs and political communications consultants who are referred to as ‘lobbyists’, the reality is that only a small proportion of lobbying is undertaken by 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. Exemptions Any register 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. How should it be maintained and who should maintain it? A register would need to be published online on a regular basis, by whichever body is vested with the responsibility for its publication. For administrative purposes, there would need to be a time lag between the end of the period being covered and the date of publication. 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 period covered by each published register, or as a single submission to be made before a given date. The Scottish Information Commissioner or Parliamentary Standards Commissioner would be suitable administrative bodies, however, we would suggest that a suitable independent body (such as UKPAC) could potentially function to administer any and all statutory lobbying registers within the UK. This could be cost-effective and potentially reduce the administrative burden on organisations or individuals whose activities would require them to make submissions to more than one register. What level of information should be on it? Should a statutory register of lobbying be brought forward, the register should be as complete as possible in order to fulfil the objective of openness and transparency but also simple and straightforward to complete, and to check. It is also vitally important that all the information should be verifiable. With this in mind, we would suggest the information required should be as follows:

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Date (of contact) Registrants Details (Person or persons who made contact, name of organisation) Lobbying Undertaken on behalf of: (for lobbying undertaken on behalf of a third

party) Whom Contacted: (name and position. There will also need to be an option to

register multiple or group contacts – for example ‘all MSPs’) Type of Contact: (meeting, telephone conversation, written briefing, email, etc) Subject: (issue/s addressed) Regulatory Association (option to indicate membership of an association with a

code of conduct and regulatory regime promoting ethical lobbying) The guidelines and definitions associated with such a register will 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. Should thresholds be set for registration? If so what should they be? There should be no thresholds for registration and the register should apply to all those who are not specifically exempt (as indicated above). Applying financial thresholds or time-based thresholds would reduce the degree of openness and transparency, undermining the objective of such a register. Such thresholds would also be extremely onerous to calculate (particularly for small businesses and independent consultants) and would also be unverifiable. In this regard thresholds could function to provide an opportunity for those wishing to avoid registration an opportunity to do so. What are the likely cost implications of registration for groups that lobby? Certainly with regard to our own members, we would anticipate that, given the relatively small proportion of time spent undertaking lobbying activity, time spent completing the register would not be overly onerous were the register to be in the format we have outlined in this submission. In terms of financial costs, there will need to be clarity on how the register itself is funded. Any consideration given to passing the cost – either in whole or in part - on to those who are registering lobbying activity will need to take into account the impact on those organisations which undertake a significant amount of lobbying, whether or not such costs act as a disincentive to register, and also the broader context of the implications that any such ‘registering fee’ would have for a political system based on openness and accessibility. What sanctions should there be for failure to register lobbying activity? How will the register sit alongside the UK register? How will compliance be monitored? Compliance with a requirement to register, and the registration of correct information, can only be ensured – and monitored – if the information required is verifiable. This must be a basic principle of any register, otherwise it is a pointless exercise. Registered information may be verified by reference to MSP, Ministerial and civil service diaries, and certainly in relation to some information regarding our members could be cross-referenced with the APPC register.

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Regarding sanctions, we would propose that a progressive system of warnings and financial sanctions might be appropriate. Regarding compatibility with the proposed register being developed at Westminster, there would be very little commonality with the type of register we are outlining in this submission, and we recognise that there is potential for some confusion should there be different types of register, requiring different information, in different parts of the UK. However, APPC Scotland is of the opinion that it is more important for the Scottish Parliament to produce a register fit for purpose, rather than to duplicate a flawed system. What, if any, changes should be made to Section 5 of the Code of Conduct for Members of the Scottish Parliament? We would propose that consideration be give to revising section 5 of the code both in order to reflect the realities of lobbying activity, and also to remove any implication that guidance applied with reference to ‘commercial lobbyists’ (a misleading concept in itself), need not apply to contact with any other ‘type’ of lobbyist. Should there be a Code of Conduct for lobbyists? Should it be statutory or voluntary? 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 2012 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”. However, as indicated previously, we would propose that any register should include an option to indicate whether or not the individual/s registering lobbying activity are subject to a recognised Code of Conduct. Addenda For the purposes of a register of lobbying activity, APPC Scotland would suggest the following as a sufficiently robust, comprehensive and explicit definition of lobbying activity: 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) as part of their professional duties or activities.

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ILLIAM COSTAIN MCCADE CHAIR APPC SCOTLAND 9 JANUARY 2014

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WRITTEN SUBMISSION FROM CHARTERED INSTITUTE OF PUBLIC RELATIONS

Lobbying Inquiry – Standards, Procedures and Public Appointments Committee The Chartered Institute of Public Relations (CIPR) is the professional body for public relations practitioners in the UK. With over 10,000 members involved in all aspects of public relations, it is the largest body of its kind in Europe. The CIPR advances the public relations profession in the UK by making its members accountable through a code of conduct, developing best practice, representing its members and raising standards through professional development. The CIPR provides the CIPR Public Affairs Diploma, a professional qualification specific to lobbying and is a founder member of the UK Public Affairs Council (UKPAC). The CIPR is represented across the United Kingdom, with national groups in Scotland, Wales and Northern Ireland and groups in the English regions. The Institute also has several sectoral groups, among the largest of which is the CIPR Public Affairs Group. It has more than 890 members and is made up of communications professionals who have regular dealings with Government, or the institutions of Government, in its very widest sense. The Group meets regularly to discuss key issues relating to UK politics – including the proposed statutory register of lobbyists. A sector group specifically covering Public Affairs in Scotland has recently been set up by members. 1. Have there been significant changes over the last decade in the way that lobbying is carried out? Yes. Two key factors have been in the ‘shape’ of professional lobbying (i.e. size, structure and location of the industry) and the manner in which it is conducted. Although it is difficult to ascertain exact figures, it is generally believed that more lobbying is conducted in-house, with support from the consultancy sector, than would have been the case a decade ago and also that there has been a growth in the number of freelance lobbyists. Devolution has created significant growth of the professional lobbying industry in Scotland, and also in Wales and Northern Ireland. There are also more lobbyists offering specialist services in planning (often around the process for infrastructure or property development) than existed a decade ago. In terms of the manner in which lobbying is carried out, this has been influenced by three factors: technology, strategy and professionalisation. Technology – primarily the development of digital and social media – has influenced communication with policy makers and elected representatives. In line with broader changes in society and the workplace, communication is increasingly conducted via online media, with sharing of information using channels such as Facebook and Twitter increasingly common. Furthermore, the steep rise in the use of online search in the last decade has presented a challenge and an opportunity for lobbyists, representing a significant change in how people access and consume information.

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Strategically, the aims of lobbying activity remain broadly unchanged, but the means by which they are achieved have changed. Policy issues are as likely, or more likely, to be addressed within a campaign aimed at a broader audience through advertising, and media, including social media, rather than necessarily through direct communication with contacts in Government or with elected representatives. Professionalisation of lobbying is evolving and accelerating. There are increasing numbers of educational opportunities, including the CIPR’s own qualification in public affairs. The steady growth of organisations such as the CIPR, APPC, PRCA and ASPA mean that more people working in this area are accountable to codes of professional conduct supported by effective structures of enforcement and sanction. 2. Is there a problem or perceived problem with lobbying in Scotland? If so, how can this best be addressed? If not, do steps still need to be taken to address any problem arising in future? There is no evidence of a problem with lobbying in Scotland. Recent cases which have attracted publicity and stoked concern about the role of lobbyists have arisen in other parts of the UK and have involved allegations of inappropriate arrangements between investigative journalists and Members of Parliament. While these incidents have been dubbed “lobbying scandals”, no professional lobbyists appear to have been involved. This raises the question of what problem any further steps would seek to address. It is hard to envisage any corrupt or dishonest behaviour that is not covered by existing law or regulations including the codes of conduct applied to Scottish Ministers, MSPs and civil servants. In Westminster, registration of lobbyists is being introduced to address a perceived problem arising from consultant lobbyists engaging in direct communication with Ministers and senior Civil Servants. The crux of the problem is defined as the perceived lack of transparency regarding the range of client interests represented by the consultant lobbyist and the intention is to make it illegal to carry out this business without disclosing all clients on a statutory register. The CIPR considers this action to be disproportionate to the scale of the problem it is intended to address and believes that this could be addressed through changes to the regime of reporting on Ministerial meetings and by supporting existing voluntary registers including the UKPAC register. Increasing public understanding of lobbying is important and the CIPR is not against disclosure registers in principle. In fact, we support reasonable and realistic measures that would raise the level of understanding and address any perceived or real public concern. Normalising lobbying could be a beneficial by-product of greater transparency, leading to a greater openness about the way information and dialogue has a positive impact on how our laws and regulations are made. 3. To what extent will the introduction of a register of lobbyists address any problem or perceived problem with lobbying? Firstly, while it is worth noting that any perceived problem with lobbying is not reflected in practice, the proximity of business interests and political decisions can

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give rise to public concern. Fortunately, actual abuse remains rare in Scotland in particular and in the UK in general. It is therefore not clear exactly what problem the introduction of a statutory register would address, aside from the perception of a lack of transparency around lobbying activity in general. As stated above, the CIPR is in favour of reasonable and realistic steps that increase public knowledge about the conduct of lobbying, including the disclosure of clients through the voluntary UKPAC register. It is worth noting that the very limited statutory register proposed at Westminster is likely to deliver less information about lobbying than the existing UKPAC register, despite the stated aim of increasing transparency. To this end, the CIPR believes any register should include all lobbyists within a reasonable definition (i.e. both consultant lobbyists and those who work ‘in-house’) if it is to meet public expectations of genuinely increasing transparency about lobbying activity. 4. To whom should such a register apply? Should it be voluntary or compulsory? How should it be maintained and who should maintain it? What level of information should be on it? Should thresholds be set for registration? If so what should they be? What are the likely cost implications of registration for groups that lobby? We believe that the UKPAC register already provides a useful degree of transparency. However, should the Committee conclude that there is a problem with lobbying in Scotland that can best be addressed by a statutory register, we would not necessarily oppose it. We do believe, however, that any register, whether voluntary or statutory, should be universal and the burden of compliance should be proportionate to the size of the industry and the scale of the perceived problem. By universal, we mean that any register of lobbyists should include all lobbyists, regardless of their employment context (i.e. in house or agency) and the nature of their work – for example, a considerable amount, if not the majority, of lobbying activity is carried out by civil society organisations and not by business. It is our belief that a register of lobbyists that does not include all who lobby (with reasonable and common sense exemptions, but not with a financial or other threshold as an entry point) would not meet public expectations for the provision of more information about lobbying activity. Any register would ideally be maintained independently of Government and the industry. We discount the suggestion of thresholds on the basis that they would create an invitation to avoidance. The register should require a sensible amount of useful information, including but not limited to, contact details, client names and the names of any employees who are engaged in lobbying activity. We do not believe it should be necessary to include commercially sensitive information such as client fees or spending related to contracts. Cost implications are hard to determine without a clear idea of the structure of the register envisaged. Given the likely size of the population that be considered as potential registrants, if the cost of running the register is to be borne by those who register, then it is likely that a small group of people would carry a disproportionate burden.

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5. What sanctions should there be for failure to register lobbying activity? How will the register sit alongside the UK register? How will compliance be monitored? In a statutory regime, registration would presumably be supported by making it illegal to lobby without registering. Any resulting prosecutions would affect an individual or organisation’s commercial activity, as well as incurring civil or criminal penalties. Compliance would be monitored by an executive with the power to enforce registration or to take action in the event of non-compliance. The scale of the resource required for this would be dictated by the scale of the population to be monitored, which is small but growing. As the UK statutory register has not yet passed as law it is difficult to envisage how the two would sit together. Ideally, because it is possible, indeed likely, that lobbyists operate in both jurisdictions, that an entry into one register might be transferrable, but it is hard to see how that would work on a practical level unless the registers were provided by the same registrar and with identical compliance and disclosure requirements. 6. What are the implications of a register for (a) the Parliament, (b) MSPs, (c) organisations that lobby and (d) Ministers and civil servants? It is likely that there would be very few implications for those in political office. The implications for those who lobby however would be quite substantial as the burden is placed on them and not the lobbied. Implications are twofold: functional and financial. The first is that there will be additional administrative requirements placed upon an organisation required to record information and keep a register up to date. Secondly, there will be a financial burden placed upon organisations required to register. It is possible that the impact of the UK Register will be to increase the burden on all firms who provide consultant lobbying services, which will be forced to monitor their own activities to ensure they comply with the legislation, whether or not their activity is registrable. Firms which are required to register will also have to meet a financial cost for registering. 7. Whether other changes could be made to improve transparency in lobbying in Scotland? What, if any, changes should be made to Section 5 of the Code of Conduct for Members of the Scottish Parliament? Section 5 of the Code of Conduct for Members of the Scottish Parliament is detailed and should be commended as an initiative to protect against unethical behaviour in political office. Outside of this the CIPR would support further collaboration between the Scottish Government and Parliament and the professional associations representing lobbyists to increase public understanding and trust of the lobbying profession. Professional associations should be supported in their attempts to educate, train, develop and support professional lobbyists and the Scottish Government should recognise that association with such an organisation is a clear indicator of one’s commitment to ethical standards.

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8. Should there be a Code of Conduct for lobbyists? Should it be statutory or voluntary? Codes of conduct are common in many professional contexts and the CIPR is one of a few organisations providing codes that are relevant in Scottish public affairs. Many Scottish lobbyists are already signed up to this or other codes of conduct which hold them to a high standard of professional conduct. A statutory code of conduct would regulate the lobbying profession, replacing the existing industry structures and removing the advantages that come with a system of self-regulation. These include a strong link with current standards of practice, a strong link with professional education and training and the ability to change or challenge a code’s content to reflect change realities. Although a voluntary regime may not provide complete coverage of the lobbying industry, it does offer a cost-effective means of raising standards without the costs or risks of introducing Government regulation of lobbying activity. CHARTERED INSTITUTE OF PUBLIC RELATIONS 9 JANUARY 2014