The Lobbying Act – a threat to democracy or win for openness and transparency?

By December 6, 2017Featured

By Colin McFarlane,
As published on Think Scotland on 30 November 2017 

By Thomas Duesing

By Thomas Duesing

THE LOBBYING ACT – three words guaranteed to raise anxiety levels among the myriad organisations that regularly engage with the Scottish Parliament and the Scottish Government.

This Act, which largely slipped through parliamentary scrutiny unnoticed and unremarked upon by the general public, is a rather unique piece of legislation in so much as it has the ability to impact almost every single sector of the Scottish economy and its civic society and, if implemented poorly, could have a profoundly negative impact upon democracy and how our politicians makes decisions here in Scotland.

It’s fair to say that the word ‘lobbying’ brings with it negative connotations, particularly around the perception of ‘big business’ seeking and exerting disproportionate influence over the political process.  However, back in the real world, lobbying and the work of those defined by the act as lobbyists (that is, most people whose work entails talking to the very people in Parliament and government making rules on how they operate) is vital to any well-functioning democracy.

Those who choose to focus on the negative image of lobbying as justification for heavy-handed regulation would do well to remember that since the establishment of the Scottish Parliament the country has managed to avoid any notable form of crisis, scandal or impropriety with regard to how our politicians are engaged with.

Indeed, quite the opposite has been the case, as the role of lobbying has been seen as an integral part of how the public and business community inform and educate our politicians at Holyrood about the impact of their decisions on our lives.

The rationale behind engaging with politicians is that an informed decision-maker should in theory produce better legislation and lobbyists play a vital role in providing reliable insights, data and feedback from those who are likely to be impacted by a particular piece of legislation.

Many people do this, even if they don’t regard themselves as lobbyists, from members of the public speaking to their local representative about pot holes on the roads, to healthcare advocacy groups campaigning for new treatments, to blue chip businesses seeking public sector support for inward investment.

Since lobbying affects a plethora of people from all sectors, it’s unsurprising that a range of concerns have been raised about what they perceive to be the intrusive nature of the legislation and its possible negative unintended consequences.

Indeed some have asked whether, at a time when the public’s engagement with politics is already strained, Parliament should really be looking to regulate and potentially restrict dialogue with democratic decision makers.

So, are such concerns justified?

Well, the Lobbying (Scotland) Act 2016 to give its full title, was passed last year with the aim of bringing a level of transparency by creating a definition of ‘regulated lobbying’ where certain face-to-face discussions between politicians and businesses and those in the third sector will be required to be declared in a publicly availably Register.

Few would argue that the principle of improving the transparency of how our Parliament and Government works is a bad thing. The question remains however, whether the new, undoubtedly well-meaning rulebook will in practice achieve the opposite.

In Scottish politics the circles within which people work are small.  Many of those working professionally in lobbying, or who speak to politicians on a semi-regular basis, have personal friendships and are well acquainted with lawmakers.  Moreover, in recent years we have found that many of those working in lobbying are former politicians themselves.

For many, the strong links that exist between our politicians and business/third sector are a strength when it comes to getting things done. Dialogue is open, free and usually conducted according to robust codes of practice, whether on the part of the lobbyist’s organisation or that of the people they’re talking to.

What the new Act does is make it a criminal offence if such conversations, where related to the functions of Parliament or Government, are not declared, even when discussions take place in an entirely private setting.

The Act draws a fuzzy line on the definition between general conversation about politics and a genuine attempt to influence a politician’s behaviour.  A concern is that such uncertain drafting could lead many people unwittingly to fall foul of this new law through what both parties may perceive as an innocent conversation.

Indeed, such fear or lack of understanding of the complexities of the Lobbying Act may lead some to scale back their engagement with politicians altogether. This, in my view, would be an entirely negative outcome.

Organisations must also bear in mind that the new rules won’t just apply within the walls of the Scottish Parliament. Those speaking at conferences or roundtable events where an MSP may be present will also have to consider closely whether their remarks could be construed as lobbying, even if not directed at any members who happen to be there. That’s a matter for judgement (and arguably sharp-sightedness if it’s a crowded room).

For a Scottish Parliament which was established as an open legislature where anyone can contribute to our democracy, this is potentially a step in the wrong direction.

Only time will tell what, if anything the Act will achieve in terms of transparency, and whether it will have a positive or negative effect on organisations’ capacity to engage at Holyrood. Yet with only a few months until the implementation date, it’s vitally important that organisations think carefully about the implications of the Act on their business and indeed the consequences of getting things wrong.

What’s clear is this Act is here to stay and preparation will be key to managing its impact with confidence.

Colin McFarlane is a Senior Account Manager at the Edinburgh-based communications consultancy Indigo and Secretary of the Association of Scottish Public Affairs

Full implementation of the Lobbying Act will take place on 12 March 2018.  Indigo has organised a number of information sessions on how to prepare for the Act.  If you’d like to find out more then please contact