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Standards Committee

1st Report 2002

Report on Lobbying

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SP Paper 507

Session 1 (2002)

 

Standards Committee

Remit and Membership

Remit

1. The remit of the Standards Committee is to consider and report on -

(a) whether a Member's conduct is in accordance with these Rules and any Code of Conduct for members, matters relating to members' interests, and any other matters relating to the conduct of members in carrying out their Parliamentary duties; and

(b) the adoption, amendment and application of any Code of Conduct for members.

2. Where the Committee considers it appropriate, it may by motion recommend that a member's rights and privileges be withdrawn to such extent and for such period as are specified in the motion.

(Standing Orders of the Scottish Parliament, Rule 6.5)

Membership:

Mr Mike Rumbles (Convener)

Susan Deacon

Lord James Douglas-Hamilton

Mr Frank McAveety

Tricia Marwick (Deputy Convener)

Mr Kenneth Macintosh

Mrs Kay Ullrich

Patricia Ferguson (until 28 November 2001)

Committee Clerks:

Dr Sam Jones

Dr Jim Johnston

Lewis McNaughton

Emma Berry

 

Standards Committee

1st Report, 2002

Lobbying

Background

1. The Committee was initially due to discuss the issue of lobbying at its meeting on 29 September 1999. As has been well documented that initial discussion was delayed by its inquiry into matters raised by The Observer Newspaper1. Paragraph 38 of the Committee's Report on that inquiry stated that:

It is the Committee's intention to continue to examine the issue of lobbying, which had been on the agenda for the meeting on 29 September, the day on which the material from The Observer was lodged. That will inform the preparation of the Code of Conduct2.

The Committee's initial recommendations on the relationship between MSPs and lobbyists are set out in Section 7 of the Code of Conduct.

2. The Committee resumed its inquiry into the relationship between MSPs and lobbyists at its meeting on 31 May 2000. Subsequently, the Committee met on 14 June 2000, 12 and 26 September, 19 December, 31 January 2001, 28 February, 14 and 28 March, 25 April, 9 and 23 May, 12 September and 21 November to consider, among other business, its inquiry on lobbying.

3. The Report is structured in 5 sections. Section 1 provides a summary of the Committee's conclusions and recommendations. Section 2 provides details of the consultation process that the Committee carried out. Section 3 addresses the principal policy issues that arose in the course of the inquiry. Section 4 looks at the Committee's consideration of the major policy options while section 5 provides details of the Committee's recommendations.

Section 1: Summary of Conclusions and Recommendations

4. Throughout its inquiry on lobbying the Committee has emphasised that it views lobbying as a legitimate component of political engagement. As stated in paragraph 7.1.3 of the Code of Conduct:

It is an essential element of the democratic system that any individual should be able to lobby the Parliament or an MSP.

5. From the evidence which the Committee has heard during its inquiry it is not concerned that there are any substantial difficulties in the relationship between MSPs and lobbyists. As one Member pointed out at the Committee's meeting on 25 April 2001:

Most of the evidence suggested that we are not being inundated with lobbyists who practise unscrupulously. That does not mean that we should not be on our guard, but we must put the scale of the problem into proportion3.

6. The Committee's proposals are driven by a desire to enhance transparency and openness in the relationship between lobbyists and the Parliament. Moreover, the Committee's proposals are not intended, in any way, to constrain or inhibit the legitimate business of commercial lobbying companies. Rather, the proposals are intended to increase the transparency of such activity, in line with the Parliament's core principles of accessibility and openness as established by the CSG Report.

7. The Committee's principal recommendations are as follows:

· further guidance for MSPS;

· revised section 7 of the Code of Conduct on Lobbying and Access to MSPs.

· the introduction of a statutory registration scheme for commercial lobbyists;

· voluntary code of conduct for all lobbyists;

Section 2: The Consultation Process

8. At its meeting on 31 May 2000 the Committee agreed the scope and mechanics of its inquiry on lobbying. First, the Committee agreed to focus its inquiry on the impact of lobbying on MSPs and to review its initial guidance on lobbying as set out in Section 7 of the Code of Conduct.

9. In the first instance it was agreed to obtain information from Members about the their experience of contact with lobbyists. It was agreed that this exercise would be useful in framing the next stage of consultation with voluntary organisations and professional lobbying companies who lobby the Parliament. A questionnaire was sent to all Members on 15 June 2000. The Committee received 49 responses4.

10. Second, the Committee also agreed to consult closely with those lobbying companies and interest groups whose work brings them into contact with the Scottish Parliament. The Committee published its initial consultation paper, Lobbying in the Scottish Parliament (SP Paper 200), in October 2000 to which it received 29 responses5. A list of those who responded is attached as Annex A.

11. Having considered these responses at its meeting on 31 January 2001 the Committee agreed to hear oral evidence from a variety of interested parties. The Committee heard from 7 sets of witnesses at its meetings on 28 February 2001 and 14 March 2001 and a full list of those who gave evidence is attached as Annex B.

12. The Committee, having agreed to recommend the introduction of a statutory registration scheme for commercial lobbyists, published a further consultation paper in June 20016. The aim of this further consultation was to invite views on a draft framework of its proposals for a registration scheme. The Committee received 37 responses7. A list of those who responded is attached as Annex C.

MSP Consultation

13. The main points which arose from the MSP survey were:

· 77% of respondents had been lobbied more than 20 times

· 98% of respondents had been lobbied by voluntary organisations and charities

· 49% of respondents had been lobbied by professional lobbying companies

· 48% of those lobbied by professional companies had been lobbied 5 or less times by such companies

· 49% of respondents said that they had regular contact with various kinds of lobbying groups

14. The vast majority of respondents stated that they saw distinct benefits in lobbying by the interested parties themselves. In particular, there was an emphasis on the knowledge and experience which such groups can bring to the democratic process. At the same time, some Members pointed out that there is a danger in some of the more powerful pressure and interest groups dominating the democratic process and that Members must be careful to consult widely on specific issues. Generally, those Members who responded were content with the nature of the lobbying process in relation to the interested parties themselves on the basis that it is always carried out transparently and above board.

15. Members' views on lobbying by commercial lobbyists were more diverse. They ranged from those who were completely opposed to dealing with such companies to those who felt that they are a wholly legitimate part of the democratic process. Again, there was an emphasis on the need for this form of lobbying to be wholly open and transparent. A key concern was that commercial lobbyists should make it clear on whose behalf they are lobbying. Some Members also expressed concern that some lobbying companies gave the impression that they have better access and influence over MSPs8.

Consulting Beyond the Parliament

16. Having considered the responses from Members the Committee agreed at its meeting on 26 September 20009 to consult with a representative sample of lobbyists including professional lobbying companies and interest groups whose work brings them into contact with the Parliament. This was followed up by two oral evidence taking sessions.

Section 3: Policy Issues

17. The main policy issues which arose from the consultation exercise were as follows:

· Accessing the Parliament

· Definitional Difficulties

· Statutory Regulation/Registration

· Voluntary Codes

Accessing the Parliament

18. The Committee was keen to ascertain the views of lobbyists in relation to the Parliament's commitment to openness and accessibility in its workings.

19. Respondents were generally very positive in their views of the Parliament's commitment to openness and transparency10. The Law Society stated that: `Because of the openness and approachability of the Parliament and its institutions, its very easy to find out information about what is happening in the Parliament'. The Federation of Small Businesses suggested that it is easy to find out what is happening in the Parliament as it `widely disseminates information on its current and future work, contact is easy and the whole process is very open'.

20. However, the Stirling Media Research Institute argued that the rhetoric of an open Scotland distinct from Westminster has not so far been achieved in practice. They suggested that while the rules and procedures that govern Parliament are well understood by professional lobbyists there are many civic groups and members of the public who do not view the Parliament as being open, accessible or transparent. They emphasised that individual constituents do not have the necessary resources to lobby in the same way as professional lobbyists.

21. A more cautionary note was also sounded by Standard Life who suggested that: `more can probably still be done to promote the information about the Parliament, its activities and procedures to the wider lay audience'. Particular concern was expressed, for example, by the Royal Institute of Chartered Surveyors in Scotland (RICSS), that many individuals and groups do not have access to the Internet. In this respect the Scottish Food and Drink Federation (SFDF) suggested that it would be useful to make guidelines on the legislative process and details of key contacts more widely available beyond inclusion on the website.

22. While the Committee accepted that many of these issues raised in relation to accessing the Parliament fall outside its remit it agreed that the consultation exercise had been useful in identifying some of the strengths and weaknesses of the Parliament in its relations with lobbyists:

· generally, the Parliament is seen as being open and accessible:

· the website, in particular is viewed as an important resource;

· concern exists in relation to informing individuals and groups without access to the web;

· concern exists that not enough time is allowed to respond to consultation exercises, submit evidence and propose amendments;

· more guidance may be needed on when to lobby the Parliament.

23. The Committee considered a further issues paper on accessibility issues at its meeting on 25 April 200111. The Committee agreed to pass the evidence which it had gathered in relation to the issues of openness and accessibility to the Procedures Committee in the context of its CSG inquiry, the Parliamentary Bureau and the Parliament's Directorate of Communications12.

Problems of Definition

24. From the outset of the inquiry the Committee recognised that `there are difficulties in defining "lobbying"'13. In the Committee's initial consultation paper "lobbying" was defined as:

the representation of organised interests to MSPs by the interested parties themselves, or the professional representation of organised interests by a third party, with the intention of influencing the action of MSPs.

However, the efficacy of this definition emerged as one of the main concerns of respondents to the consultation exercise. In particular, the Committee's working definition of lobbying was criticised as being too narrow. The commercial lobbyists who responded were keen to point out that the vast majority of their members' work is advisory and it is only very rarely that they are asked by clients to act as advocates on their behalf with politicians or officials. The Association of Professional Political Consultants Scotland (APPCS) argued that: `increasingly, it is unusual for professional political consultants to act as a third party advocates of a client's case' while the Institute of Public Relations (IPR) pointed out that: `public affairs consultancies which play an advisory role for their clients might never contact the Parliament or an MSP to undertake "lobbying activity"'.

25. Mainly on the basis of this evidence the Committee agreed to revise its working definition of lobbying in relation to commercial lobbyists as follows:

the provision of advice and/or information to a third party on the workings of the Scottish Parliament or the direct representation of organised interests in return for remuneration with the intention of influencing the actions of MSPs14.

26. The commercial lobbyists also emphasised that it is not only public affairs companies who lobby on a commercial basis for third party clients but that many professions such as lawyers, journalists, think tank representatives may seek to influence MSPs and public policy to varying degrees. The Public Relations Consultation Association (PRCA) argued that:

It is not just public affairs and public relations companies which have multiple clients and lobby. The media's focus on public relations and public affairs consultancies is based on an outdated interpretation of lobbying. Increasingly, professional services companies - eg law firms, management consultancies and investment and merchant banks - are offering, in house, public affairs advice and advocacy.

27. In support of this view the PRCA pointed to the recent recommendations of the Neill Committee on `Standards of Conduct in the House of Lords'. In respect of mandatory disclosure of Peers' interests, the Committee stated that:

An examination of the Register shows that in almost every case, it is only peers associated with commercial lobbying companies who are actually registered as having financial interests in businesses involved in parliamentary lobbying on behalf of clients. Yet we heard it argued that this does not accurately reflect the full range of peers who are connected with parliamentary lobbying...These include some law, accountancy and management consultancy firms15.

28. Again, the Committee accepted this evidence and agreed to define `commercial lobbyists' to be covered by its proposed registration scheme as follows:

any company or professional firm, partnership or individual working alone whose services include either in whole or in part, the provision of advice and/or information to a third party on the workings of the Scottish Parliament or the direct representation of organised or personal interests, in return for remuneration and with the intention of influencing the actions of MSPs.

29. The Committee invited views on its revised definitions in its consultation paper on Statutory Registration of Commercial Lobbyists. Considerable concern was expressed in relation to the workability of the proposed definitions. For example, the APPCS argued that the definition of lobbying is now `so all-embracing that it is unlikely to stand up to legal scrutiny' and that `it remains imprecise and potentially ineffective'.

30. The main concerns related to what is meant by "remuneration" and what is meant by "third party". In particular that remuneration could be interpreted to include income from subscriptions or membership fees and that third party could be interpreted to include members in the case of membership organisations. This would mean that many voluntary groups and membership organisations could be covered by the scheme.

31. However, the Committee had agreed at its meeting on 25 April 2001 that it is only "commercial lobbyists" that should be covered by the statutory registration scheme. The Committee had also agreed that the scheme is not intended to cover the voluntary sector, trade associations, representative and membership organisations, interest groups, in-house lobbyists and companies whose sole purpose is the provision of an information service on the work of the Parliament. The Committee's recommendation in relation to in house lobbyists is discussed in more detail at paragraphs 47 to 49 below.

32. On the basis of this further evidence the Committee agreed at its meeting on 21 November 2001 to conflate its previous two working definitions into a single definition of "commercial lobbyists" to be covered by the register.

33. The Committee, therefore, recommends that for the purpose of its proposed registration scheme that "commercial lobbyists" are defined as follows:

'any individual, partnership, company or other undertaking which

(a) attempts, on behalf of a third party, to influence the conduct of members in carrying out their Parliamentary duties; or,

(b) provides assistance (which may include or consist of strategic advice) to a third party in connection with attempting to influence the conduct of members in carrying out their Parliamentary duties,

on a commercial basis'.

 

Statutory Regulation/Registration

34. Respondents were asked for their views on statutory regulation and registration. Statutory regulation involves the introduction of a statutory code of conduct which all lobbyists covered by the necessary legislation would be required to abide by. Statutory registration requires all lobbyists covered by the necessary legislation to register as a lobbyist. Inevitably, however, a registration scheme involves an element of regulation as lobbyists would be required to keep records and submit information as part of the scheme.

35. In response to the Committee's initial consultation paper, 22 of the 29 written responses were explicitly opposed to the introduction of statutory regulation/registration for lobbyists16. Of those witnesses who gave oral evidence only the SMRI were in favour of statutory regulation for all lobbyists. They argued that `information on resources that are devoted to shaping public policy should be publicly available'17. Both COSLA and the SCVO while being generally against statutory regulation/registration were content to support a scheme if applying only to commercial lobbyists. In this respect the SCVO stated that:

We are generally not lobbying for profit or private gain; we are lobbying on behalf of the interests of a large number of people. If you choose to create a register and a definition can be found that makes that distinction clear, we would be happy to support it18.

36. Similarly, the STUC in giving their oral evidence stated that:

We could certainly live with the concept that fee-based organisations that provide a professional lobbying or advocacy service should be registered or regulated in some way19.

 

In contrast, both the Association for Scottish Public Affairs (ASPA) and the APPCS were wholly opposed to the introduction of statutory regulation/registration. Rather, they are in favour of self-regulation for the lobbying industry. In their oral evidence ASPA argued that: `the industry can regulate itself. Our code of conduct was drawn up for that purpose....Its basis is openness, honesty and integrity'. Similarly, the APPCS argued in their oral evidence that:

we believe that the APPC code and voluntary regulation provide a sensible, effective and transparent system to ensure ethical communications between public affairs consultancies, their clients and those who are lobbied20.

However, at the same time they stated that: `if there were a political will to introduce a statutory register for public affairs consultancies, we would comply with that'21.

37. In summary, the main arguments in support of statutory regulation/registration that the Committee identified from both the written and oral evidence were:

· there would be greater openness and transparency in the policy-making process;

· it would assist MSPs in meeting their own obligations in the Code of Conduct;

· a record of the resources which are devoted to lobbying should be publicly available;

· if the category of registrable lobbyist is sufficiently widely drawn then this would prevent organisations or individuals claiming elite or special status;

38. The main arguments that the Committee identified against the introduction of statutory regulation/registration were:

· difficulties in defining lobbying, especially if only applicable to commercial lobbyists;

· difficulties involved in implementing a regulatory/registration scheme;

· difficulties involved in monitoring and policing regulation;

· difficulties involved in enforcement of sanctions for non-compliance;

· creation of an elite group of `recognised' lobbyists;

· may inhibit access to the Parliament and act as a barrier to participation;

· may give the impression that only registered lobbyists can access MSPs;

· increase in bureaucracy may deter smaller organisations/individuals from lobbying

Voluntary Codes

39. Respondents to the written consultation exercise were also asked to express a view in relation to the efficacy of a voluntary code for lobbyists22. Generally, they were more amenable to a voluntary arrangement as opposed to statutory regulation. COSLA indicated that it would support lobbyists being encouraged to adopt principles of accountability, accessibility, openness and responsiveness in their dealings with the Parliament. Disability Agenda supported the introduction of a voluntary code for all those undertaking any form of `lobbying'.

40. All four umbrella organisations representing predominantly commercial lobbyists in Scotland employ their own voluntary codes of conduct and all submitted copies of their respective codes as part of this exercise (attached as Annex D). ASPA argued that:

the strength of a voluntary code is that those who sign up to it are not looking for loopholes within it, but rather wish to embrace and promote the standards themselves.

41. Similarly, in their oral evidence the APPC argued that:

we believe that the APPC code and voluntary regulation provide a sensible, effective and transparent system to ensure ethical communications between public affairs consultancies, their clients and those who are lobbied23.

They suggested that the statutory imposition of good conduct should be on MSPs.

42. In summary, the main arguments in support of a voluntary code that the Committee identified from both the written and oral evidence were:

· a universal voluntary code would standardise the various codes currently in practice and ensure that all lobbyist whether professional or otherwise were adhering to the same standards;

· it would encourage all lobbyists to adopt principles of accountability, accessibility, openness and responsiveness in their dealings with the Parliament;

· evidence from the APPCS that voluntary codes do work in practice as illustrated by the so called "Drapergate" affair24;

· the availability of sufficient sanctions to enforce voluntary codes such as naming and shaming or suspension of membership from umbrella organisations;

· the willingness of umbrella groups to monitor and enforce voluntary codes through, for example, the appointment of compliance officers, training programmes, publication of a voluntary register, adherence to voluntary codes as part of an employees' contract of employment, familiarity with the content of codes as part of annual staff appraisal systems.

43. However, in their written evidence the Third Sector Policy Officers' Network (TSPON) argued that it would be very difficult to arrive at a code which would be acceptable to all. Rather than a voluntary code they suggested that the Committee provides guidance on which elements should form part of a voluntary code. This was also the view of the SCVO who argued in their oral evidence to the Committee that the Committee should provide `a simple statement of guidance rather than a detailed code'25. The SMRI did not see any benefits in the introduction of a voluntary code of conduct for lobbyists. In giving oral evidence to the Committee they argued that:

Voluntary associations are like clubs; they do not necessarily have a public interest in the way that they regulate themselves and there are questions about how they impose sanctions on their members.26

 

44. In summary, the main arguments which the Committee identified against the introduction of voluntary codes were:

· the application of a voluntary code to all forms of lobbying and groups/individuals involved in lobbying would be difficult and complex;

· very difficult to arrive at a code which would be acceptable to all lobbyists;

· definitions of what constitutes lobbying activity would be problematic;

· difficulties involved in monitoring, policing and enforcing voluntary codes;

· may lead to a two-tiered system of those who are signed up and those who are not;

· may be overly bureaucratic, complex and costly to operate;

· there is little evidence of voluntary codes currently in practice being enforced;

· commercial imperatives mean that commercial lobbying trade associations may not be eager to expose wrongdoings by its members;

· of little use if not enforced universally;

· may be advantages, commercial or otherwise, in not signing up to a voluntary code.

Section 4: Consideration of Policy Options

45. From the outset of its inquiry the Committee recognised that lobbying is an integral element of the democratic process. The Committee's proposals to establish a statutory registration scheme for commercial lobbyists are not designed to outlaw the activities of those lobbyists in relation to the Parliament. The Committee views commercial lobbying as a legitimate component of political engagement.

46. As noted in paragraph 4 above, on the basis of the evidence it has considered, the Committee is satisfied that there are no substantial difficulties in the relationships between MSPs and lobbyists. On this basis the Committee does not consider that there is any justification for the introduction of a statutory regulation scheme for lobbyists at this time.

47. However, the Committee agrees that there is a need to enhance the transparency of the relationship between MSPs and commercial lobbyists. As one Member stated at the Committee's meeting on 25 April 2001:

I am not worried so much about bad practice as about encouraging openness and ensuring that everyone is aware who is lobbying the Parliament and speaking to us27.

48. Paragraph 7.3.4 of the Code of Conduct states that `a member should seek to satisfy him or herself about the identity of the person or organisation who is lobbying and the motive for lobbying'. In other words, that there is transparency in the lobbying process.

49. On this basis, the Committee agrees that there is a distinction between organisations which lobby on their own behalf and those which lobby on behalf of third parties in return for payment. For example, at the Standards Committee meeting on 28 March 2001 one member commented that:

there is a distinction between individuals and organisations that lobby us on their own behalf and commercial organisations that are engaged to do so on behalf of others.28

50. The Committee rejected the idea of including in-house lobbyists and other lobbying groups such as trade associations and other representative bodies as it is already clear on whose behalf they are lobbying. As stated by a Member of the Committee at its meeting on 25 April 2001:

If representatives of British Airways...approach the Parliament's officials or MSPs, they say, "I am from BA" and they give their name. The same goes for representatives of Shelter and similar organisations: we know immediately who they are29.

The Register is aimed at enhancing the transparency of the lobbying process by providing a publicly available list of lobbyists and their clients.

Registration Framework

51. Having agreed to recommend the introduction of a statutory register the Committee initially proposed the following framework for the register:

· Names of staff involved in lobbying activity;

· Descriptive information about the company or organisation, for example the number of employees;

· Identity of clients;

· Where appropriate, specific information on the subject matters lobbied, for example, naming the Bill;

· Details of expenditure in relation to individual lobbying projects;

· Details of fees received in relation to individual lobbying projects;

· Details of MSPs contacted;

· The Communication techniques used.

 

52. The Committee also proposed that the register should be maintained on a `live' basis and that updated information should be submitted to the registrar within 28 days. In relation to policing and enforcement issues the Committee invited views on whether criminal penalties or `naming and shaming' were appropriate sanctions for non-compliance.

53. In their written evidence the commercial lobbyists were generally content with the requirement to register details of staff and client lists. However, there was widespread concern regarding the disclosure of other information proposed by the Committee.

54. A primary concern was that a number of the disclosure requirements could break contractual agreements of confidentiality. The PRCA argued that: `the proposals would require disclosure which would exceed all legal definitions of privacy, proportionality and reasonableness'. There was particular concern that the Committee's proposals would infringe on commercially sensitive information. This is especially relevant in relation to proposed takeovers or mergers where there are legal constraints on putting information into the public domain.

55. Some respondents also argued that a registration scheme could be potentially damaging to the Scottish economy. In their written evidence the PRCA, for example, stated that:

The scheme would impair the ability of companies, which might be contemplating transactional or other significant commercial activity in Scotland, to test the climate of political opinion and prepare the political ground effectively and sensitively for such action. Companies often engage consultants to intermediate, gather intelligence and analyse on their behalf, but would be reluctant to do so if this information had to be disclosed.

56. The provision of details of expenditure and fees in relation to individual lobbying projects would also be problematic according to commercial lobbyist respondents. Citigate, for example, argued that these are `commercially confidential matters between client and consultancy'. APPCS contended that `this proposal would single out commercial lobbyists from other organisations on an unfair basis':

the proposal to disclose fees is analogous with a requirement to disclose expenditure: it unnecessarily adds to the bureaucracy, does not add to the Parliament's understanding of the commercial lobbying process, is potentially illegal and might encourage non-transparency rather than openness.

57. Other respondents indicated that there would be practical difficulties where an overall fee is charged but only part of the work relates to lobbying the Scottish Parliament. For example, Saltire stated that it would be difficult `earmarking fees paid in respect of ad hoc advisory work in the context of much bigger projects'.

58. However, SMRI argued that: `there is likely to be little difficulty in disclosing fees or expenditure'. They argued that `lobbyists and PR consultancies appear to have little difficulty in providing data on income and clients to the trade press' and that they are able to break such data down into categories of work.

59. There was also some concern among the commercial lobbyists that the Committee's proposals may be in breach of ECHR. McGrigor Donald argued that:

The Committee's proposals as currently drafted, would require significant amendment for any legislation enacting them to be compatible with the European Convention. The Committee will be aware that the Scottish Parliament may not legislate in contravention of ECHR.

60. Although McGrigor Donald accepted that these rights can be qualified or limited in certain cases, they argued that the proposals `must have a legitimate aim, be proportionate and be necessary in a democratic country'. Saltire suggested that: `Companies affected by these proposals could plausibly found upon a number of Convention rights in a legal challenge to the registration scheme'.

Policing and Enforcement Issues

61. The commercial lobbyists were divided in their views on the level of sanctions which they felt would be appropriate in enforcing the registration scheme. The IPR argued that `naming and shaming' is not adequate in isolation while the APPCS suggested that `it would appear logical to apply criminal sanctions and the imposition of fines for non-compliance'.

62. McGrigor Donald argued that the question of sanctions raised the issue of the Parliament's jurisdiction over lobbying companies which are based outside Scotland. Saltire Public Affairs argued that:

the proposed registration scheme is to apply to any entity offering "commercial lobbying" services in Scotland, whatever its origin or nationality, the question of legislative competence comes into play.

They argued that if the registration scheme applies to companies based outside Scotland then the required legislation would be beyond the competence of the Scottish Parliament.

63. However, Bircham Dyson Bell pointed out that the public affairs industry is `a fairly small community and one which operates with the hothouse media environment associated with politics. On this basis they suggested that the sanction of `naming and shaming' is a real one as `few if any lobbyists would wish to risk their reputation being censured by Parliament'. Moreover, the increasingly global nature of the public affairs business means that any criminal sanctions are likely to be unenforceable.

Section 5: Recommendations

64. At its meeting on 21 November 2001 the Committee finalised its recommendations for a statutory registration scheme. Having agreed that in-house lobbyists would not be required to register, the Committee agreed to restrict the amount of information which commercial lobbyists would require to disclose. As one Member of the Committee pointed out:

It is difficult to insist that some commercial lobbyists declare the amount they spend on lobbying activities when we do not impose the same restrictions on others30.

65. On this basis the Committee agreed the following framework for its proposed statutory registration scheme for commercial lobbyists:

· names of lobbying firms;

· names of staff engaged in lobbying;

· identity of clients.

66. The Committee also agreed that `naming and shaming' was an appropriate sanction for failing to register or deliberately providing inaccurate information. As one Committee Member commented:

We are coming down to a much simpler method of registration. Naming and shaming is proportionate to that kind of scheme31.

67. Finally, the Committee agreed that the register should be `live' and published on the Internet. The Committee agreed that following initial registration, updated information should be submitted to the registrar within 28 days.

 

Voluntary Code

68. The Committee also agreed that it would be useful for the Parliament to draw up a voluntary code of conduct to which all lobbyists should be invited to adhere. As one Member stated at the Committee's meeting on 25 April 2001:

We also need a code of conduct for commercial and other organisations. That code, to which organisations should adhere, should be drawn up by the Parliament32.

69. In this respect, the Committee is mindful of the voluntary codes of conduct provided by the four umbrella organisations representing commercial lobbyists in Scotland. These are attached as Annex D. The Committee recommends that as a minimum the following elements should be included in a voluntary code:

· Lobbyists must act with honesty in dealing with the Parliament;

· Lobbyists must use reasonable endeavours to satisfy themselves of the truth and accuracy of all statements made or information provided to the Parliament;

· Lobbyists must, in making representations to the Parliament, be open and transparent in declaring which organisation, company etc., if any, they represent;

· Lobbyists must not offer, save for reasonable hospitality or modest tokens of goodwill as set out in paragraphs 9.2.8 and 9.2.9 of the Code of Conduct for MSPs, any financial or other inducement to a Member of the Parliament, to the staff of a Member or to any member of staff of the Parliament;

· Lobbyists must conduct themselves in accordance with the Parliament's Standing Orders while attending a meeting of the Parliament or a meeting of a Parliamentary Committee.

70. The Committee recommends that this guidance is published on the Internet and produced in a pamphlet form which both lobbyists and Members can access quickly.

Guidance for Members

71. The Committee also agreed to provide further guidance for Members. Members already have some guidance on their relationship with lobbyists in Section 7.3 of the Code of Conduct. However, at present, Section 7.3 emphasises the statutory regulations which exist in relation to lobbying. The Committee, therefore, proposes the following practical advice for Members in dealing with lobbyists:

· Do ensure that you are aware of which organisation, company etc., if any, a lobbyist may be representing;

· Do not do or say anything that could be viewed as granting a lobbyist preferential treatment;

· Always consider whether meeting one group making representations on a particular issue should be balanced by offering other groups a similar opportunity to make representations;

· When meeting with lobbyists consider having an assistant or researcher present who can make a note of the meeting;

· Do not do anything which breaches or may be interpreted as breaching the Code of Conduct and, in particular, be careful about accepting hospitality and gifts from lobbyists;

· consider keeping a record of all contacts with lobbyists.

 

72. The Committee also recommends that this guidance is published on the Internet and produced in a convenient pamphlet form which Members and lobbyists can access quickly. Furthermore, the Committee recommends that it is included in a revised Section 7 of the Code of Conduct.

Section 7 of the Code of Conduct

73. Having completed its inquiry on lobbying the Committee agreed to revise Section 7 of the Code of Conduct to reflect many of the issues which emerged during the inquiry and to provide Members with enhanced guidance on their relationship with lobbyists. A copy of the revised Section 7 is attached as Annex E (This is in revisions mode in order for members to examine the proposed changes).

The Relationship Between the Executive and Lobbyists

74. The Committee also notes the evidence of some respondents that lobbyists in Scotland predominantly target the Executive. For example, the SMRI argued:

It is crucial...that the deliberations of the Committee take the lobbying of ministers and civil servants into account in considering regulation.

75. In paragraph 39 of its First Report 1999, the Committee briefly addressed this issue in the context of `matters brought to the attention of the Committee by the Observer newspaper'. In a statement to the Parliament on 30 September "about Beattie Media and the activities of professional lobbying firms" the First Minister recognised:

However baseless the allegations, the very fact that claims of that sort have been made must raise serious concerns in the public mind33.

76. On this basis the Committee recommended at the conclusion of its 1st Report 1999 that:

the Code of Conduct for MSPs should contain appropriate safeguards, and that the Ministerial Code should be re-examined to ensure that its provisions are adequate in this regard34.

77. In responding to this recommendation, in a letter of 11 September 2000, the Executive Secretariat stated that:

The First Minister has, however, noted that the Standards Committee is currently conducting an investigation into lobbying and has asked officials to re-examine the Scottish Ministerial Code in the light of the Committee's conclusions.

78. The Committee, therefore, reiterates its view that the Ministerial Code should be re-examined to ensure that its provisions are adequate regarding the relationship between Ministers and lobbyists.

79. The Committee considers that, were the Register to apply only to relationships between MSPs and commercial lobbyists, a significant amount of lobbying activity by commercial lobbyists would remain outwith the registration framework. The Committee agrees that the relationships between the Executive and commercial lobbyists are of particular public interest and, therefore, recommends that the Executive considers extending the proposed scheme to cover the relationship between Ministers and commercial lobbyists.

Conclusion and Summary of Recommendations

80. The Committee is satisfied that there are no real difficulties in the relationship between Members and lobbyists. The Committee's proposals are being driven by a desire to enhance transparency and openness in the relationship between lobbyists and the Parliament.

81. On this basis, the Committee recommends the introduction of a statutory registration scheme for commercial lobbyists.

82. For the purpose of this register the Committee recommends that commercial lobbyists are defined as:

`any individual, partnership, company or other undertaking which

(a) attempts, on behalf of a third party, to influence the conduct of members in carrying out their Parliamentary duties; or,

(b) provides assistance (which may include or consist of strategic advice) to a third party in connection with attempting to influence the conduct of members in carrying out their Parliamentary duties,

on a commercial basis'.

83. The Committee recommends that commercial lobbyists are required, as part of a statutory registration scheme, to register the names of staff engaged in lobbying and the identity of clients on whose behalf they carry out lobbying work. It is further recommended that such a register be published on the Internet and maintained on a `live' basis with any changes being required within 28 days.

84. The Committee also recommends that the Parliament draws up a voluntary code for all lobbyists and agrees the amendments to section 7 of the Code of Conduct.

85. Finally, the Committee recommends that the Executive considers extending the proposed scheme to cover the relationship between Ministers and commercial lobbyists.

ANNEX A

LOBBYING IN THE SCOTTISH PARLIAMENT.

Standards Committee Consultation Paper.

October 2000.

SP Paper 200.

Respondents:

Disability Agenda

Citigate Public Affairs

Victim Support Scotland

The National Trust for Scotland

COSLA - Convention of Scottish Local Authorities

Stirling Media Research Institute

SLTA - Scottish Licensed Trade Association

SPUC Scotland

Law Society of Scotland

SCVO - Scottish Council for Voluntary Organisations

Scottish Churches Parliamentary Office

Third Sector Policy Officer's Network

Standard Life

Saltire Public Affairs

Unison Scotland

SQA - Scottish Qualifications Agency

RICSS - Royal Institute of Chartered Surveyors in Scotland

IPR - Institute of Public Relations

APPC - Association of Professional Political Consultants

Care for Scotland

ASPA - Association for Scottish Public Affairs

SPRCA/ PRCA - Scottish Public Relations Consultants Association

SWA - Scottish Wholesale Association

BMA - British Motorcyclists Association

Playfair Walker

EIS - Educational Institute of Scotland

FSB - Federation of Small Businesses

Scottish Food and Drink Federation

Scottish Council of Jewish Communities

ANNEX B

LOBBYING IN THE SCOTTISH PARLIAMENT.

Witnesses who gave evidence to the Standards Committee.

Date:

Witnesses:

28 Feb 2001

Stirling Media Research Institute

- Professor Philip Schlesinger

- William Dinan

 

COSLA - Convention of Scottish Local Authorities

- Councillor Corrie McChord, Leader of Stirling Council and COSLA Social Inclusion Spokesperson

- Adrian Colwell, Head of Policy

 

SCVO - Scottish Council for Voluntary Organisations

- Phillipa Bonella, SCVO

- Jillian Flye, SCVO

 

Third Sector Policy Officers' Network

- Graham Blount, Scottish Churches Parliamentary Office

- Michele Savage, Scottish Society for Autism

   

14 March 2001

STUC - Scottish Trade Union Congress

- David Bleiman, Vice Chair of STUC General Council

- Rozanne Foyer, STUC Assistant Secretary

- Tracey White, STUC Assistant Secretary

 

ASPA - Association for Scottish Public Affairs

- Angela Casey, Managing Director of Countrywide Porter Novelli and Convenor of ASPA

- Alan Boyd, Partner in McGrigor Donald and former Convenor of ASPA

 

APPCS - Association of Professional Political Consultants in

Scotland

- George Edwards, Chairman of GPC International and Chairman of APPCS

- Robbie MacDuff, Managing Director of Strategy in Scotland and Secretary of APPCS

- Fiona Callison, General Manager of AUGUST.ONE Communications Ltd Scotland.

 

Scottish Civic Forum

- Debbie Wilkie, Scottish Civic Forum

- Jeremy Balfour, Evangelical Alliance

- Tim Hopkins, Equality Network

- Liam Jarnecki, National Union of Students

- Lynne Raeside, Royal Institute of Chartered Surveyors

 

ANNEX C

STATUTORY REGISTRTION OF COMMERCIAL LOBBYISTS.

Standards Committee Consultation Paper.

June 2001.

SP Paper 345.

Respondents:

Ryan Gawn

Multiple Sclerosis Society

Professor Justin Greenwood

ABPI Scotland - Association of the British Pharmaceutical Industry in Scotland

Evangelical Alliance Scotland

RIAS - Royal Incorporation of Architects of Scotland

ICAS - Institute of Chartered Accountants of Scotland

EIS - Educational Institute of Scotland

SCDI - Scottish Council for Development and Industry

SELECT

SFE - Scottish Financial Enterprise

Saltire Public Affairs

Scottish Civic Forum

FTA - Freight Transport Association

SCVO - Scottish Council for Voluntary Organisations

UNISON Scotland

McGrigor Donald Public Policy

BMF - British Motorcyclists Federation

Scottish Whisky Association

RICSS - Royal Institute of Chartered Surveyors in Scotland

APPC - Association of Professional Political Consultants in Scotland

APIL - Association of Personal Injury Lawyers

SPRCA/ PRCA - Scottish Public Relations Consultants Association

Scottish Churches Parliamentary Office

Playfair Walker

IPR - Institute for Public Relations

Third Sector Policy Officer Network

Citigate Public Affairs

NUS Scotland

Bircham Dyson Bell

CBI Scotland

FSB - Federation of Small Businesses

ASPA - Association for Scottish Public Affairs

Victim Support

Newsdirect

Stirling Media Research Institute

Law Society of Scotland

ANNEX D

View Annex D (in PDF form)

 

ANNEX E

View Annex E (in PDF form)

 

FOOTNOTES

1 Standards Committee1st Report 1999, Report of an inquiry into matters brought to the attention of the Committee by The Observer newspaper, SP Paper 27,

2 Ibid. p 8.

3 O.R. Col. 788

4 A full summary of those responses can be found in paper ST/00/13/1

5 A full summary of responses can be found in paper ST/01/1/3

6 Standards Committee Consultation Paper,Statutory Registration of Commercial Lobbyists, SP Paper 345.

7 A full summary of responses can be found in Paper ST/01/11/2

8 The Committee noted that during its inquiry into matters raised by The Observer Newspaper that a lobbying company had attempted to create a false impression of the extent of their influence on the political process (Standards Committee 1st Report 1999, paragraph 20).

9 O.R. Col. 605 - 609.

10 A full summary of respondents' views on the issue of openness and accessibility can be found in Section 2 of paper ST/01/1/3.

11 Paper ST/01/6/C

12 O.R. Col. 785.

13 SP paper 200, paragraph 4.

14 SP Paper 345, paragraph 13.

15 Seventh Report of the Committee on Standards in Public Life, November 2000, para 6.16.

16 A full summary of respondents' views on regulations of lobbyists codes of conducts can be found in Section 3 of paper ST/01/1/3.

17 Evidence to the Standards Committee meeting on 28 February 2001, O.R. Col. 698.

18 Evidence to the Standards Committee meeting on 28 February 2001, O.R. Col. 715.

19 Evidence to the Standards Committee meeting on 14 March 2001, O.R. Col. 726.

20 Evidence to the Standards Committee meeting on 14 March 2001, O.R. Col. 748.

21 Ibid. Col. 749.

22 A full summary of respondents views on voluntary codes can be found in section 3 of paper ST/01/1/3.

23 Evidence to the Standards Committee meeting on 14 March 2001, O.R. Col. 748.

24 As a result of allegations made in Sunday newspapers, two APPC member companies in London were suspended. In giving oral evidence to the Committee, APPCS stated that: `An independent inquiry was carried out into the internal affairs of the two consultancies that were suspended and, as a result of that inquiry, certain changes were made'.

25 Evidence to the Standards Committee meeting on 28 February 2001, O.R. Col. 713.

26 Ibid., O.R. Col. 688.

27 O.R. Col. 788.

28 O.R. Col. 777

29 O.R. Col. 789.

30 Standards Committee Meeting, 21 November 2001, O.R. Col. 900.

31 Ibid. Col. 903.

32 O.R. Col. 786.

33 O.R. Col. 942

34 Standards Committee 1st Report 1999, SP Paper 27, paragraph 39.

 

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