Joshua Bird
The quest for increased transparency is very appropriate given the various lobbying scandals that have plagued Westminster over the last decade. Lobbying legislation in the UK has thus changed considerably over this period. In 2014, the UK coalition government passed the “Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act” (Lobbying Act). In addition to creating a register of lobbyists, this legislation also imposed new campaigning and spending limits for anyone lobbying at Westminster during the ‘regulated period’, which is 12 months before a general election and 4 months before devolved elections.
However, implementation of the Lobbying Act has fallen far short of expectations. While the coalition championed the legislation, opposition MPs, journalists, academics, and civil society almost universally criticised it. They held that the new definition of “lobbyist” was too narrow for the Act to capture the vast majority of actual lobbying, but also that the legislation was so complex and burdensome to comply with that it would have a “chilling effect” on legitimate democratic activity. Further, the Electoral Commission (which is responsible for disseminating guidance to campaigners) held that the Act was neither clear nor enforceable. After it eventually passed in January 2014, 162 of the UK’s biggest charities called for its repeal.
Subsequent research has found that these criticisms were not unfounded. The Commission on Civil Society and Democratic Engagement has released several reports outlining the Act’s (largely negative) impact on campaigners and organisations, and Lord Hodgson’s independent review of campaigning during the 2015 General Election (the first election cycle when the Lobbying Act applied) offered recommendations for improvements whilst retaining the spirit of the law. In addition, recent research found evidence that the Lobbying Act adversely affected Scottish organisations during the same election cycle. This research specifically highlighted how ambiguities in the legislation (especially the new spending limits) mean campaigner’s perceptions of the policy are as important, if not more so, than the actual effects of it.
The criticisms persist to this day, with 122 organisations recently claiming they are being “gagged” by the Act’s regulations. Nevertheless, and despite the snap election in June 2017, this issue has largely fallen off the policy agenda and the UK Government has (as of this writing) yet to act on any recommendations.
The Scottish Parliament is also currently overhauling how people engage with MSPs. The Lobbying (Scotland) Act, passed in March 2016, will establish a separate Scottish lobbying register, and a working group exists to inform the development of the register. This participatory approach is in marked contrast to Westminster’s more top-down implementation methods. Despite this, serious concerns about the Scottish Lobbying Act remain.
First, as in Westminster, the Scottish Act will apply uniformly to any campaigner whether it is a private organisation, charity, community group, etc. The ‘catch-all’ nature of the legislation is problematic because a PR firm working on behalf of global oil or tobacco conglomerate is in a completely different league in terms of access to funding and political capital than, say, a Highlands-based social enterprise. Yet these two organisations must abide by the same lobbying regulations under this law.
Another issue is that the Scottish Act only captures personal interactions. That is, all face-to-face contact between any campaigner and MSP must be recorded and reported. However, any digital communications such as emails, text messages and even phone calls fall out with the scope of the Scottish Act. As Martin Sime, chief executive of the Scottish Council for Voluntary Organisations, recently pointed out, “where is the evidence that face-to-face lobbying is more effective than other methods?”
Worth noting here is that there are eight other EU countries with mandatory registers, which represents an important policy learning opportunity for the Scottish working group. Most notably, strict rules in Ireland, implemented after the 2008 recession, are considered the “gold standard” of lobbying regulation. In contrast to the UK, Ireland’s law employs a broad definition of lobbyist, which ensures that activities that actually influence public policy are monitored appropriately. Indeed, a close analysis international best practice in Ireland and elsewhere is crucial for robust policy development in Holyrood.
Overall, it is necessary that there are safeguards in place to ensure transparency and openness in our parliamentary systems. However, these safeguards must not hinder organisations from legitimate campaigning and engagement activities. The participative manner in which Scotland’s Lobbying Act is being developed is positive, but there are still many issues to be resolved ahead of the planned implementation of Scotland’s Lobbying Register in early 2018.
For further information, see: Bird, J. R. (2017). The Lobbying Act and the Scottish Third Sector: Implications for Policy Development, Implementation, and Practice. Scottish Affairs, 26(3), pp.297-320.
Joshua Bird is a Policy Engagement Officer for the Rural Policy Centre at Scotland’s Rural College, where he conducts research on a variety of rural issues and also facilitates knowledge exchange between academia and policy processes. His professional interests include maximising real-world impact from research across a variety of disciplines, and how to ensure that researchers and academics are more aware of the policy contexts in which they work more generally. He is also an alumnus of the Academy of Government, having completed a Master of Public Policy with Distinction in 2015.
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Academy of Government @ Edinburgh University 