Lobbying Transparently

Craig Dalzell

Regretfully, Common Weal has been found to not be meeting the standards of lobbying transparency mandated by the Scottish Government. This has resulted in us having to delete from the public record our attempts to unlawfully report efforts made by us to lobby the Scottish Parliament and to influence their decision-making.

Let me tell you the story of the Lobbying Register, how we got to this point and what we, as a think tank dedicated to transparent governance, are going to do about it.

The Lobbying Register is something that is deeply tied to the history of Common Weal. It was one of our first campaigns as a (proto-) think tank back even before my time with the organisation. It was also one of our first major policy successes. The seeds of that success – and of the difficulties we’re now facing – stretch back more than a decade.

2013 – The Seeds of Transparency

The idea of a Register of Lobbyists and Lobbying in the Scottish Parliament goes back to essentially the start of devolution but it took many years of false starts before a public campaign became frustrated enough with the lack of transparency surrounding Holyrood to demand action. The idea is fairly simple. A democracy can only function if we, the voters, know who is talking to and influencing government. A Lobbying Register would make it a legal duty to record and report any attempt by anyone to ask a government minister, elected official or civil servants to do anything on their behalf. It doesn’t matter whether or not there’s any sense of payback or compensation involved in the request (though rare will be the instance that someone asks government to do something that actively disadvantages them unless they are particularly principled about the ask).
The campaign we were involved with coalesced in 2013 when the Jimmy Reid Foundation funded a Commission to examine the issue of lobbying and transparency. That report, Government By The People, was published under The Common Weal Project (from which the Common Weal think tank would eventually spin out) in October 2013. This report made a series of recommendations for governance reform including the creation of a lobbying register. Other recommendations around topics like concerns about the actual independence of “independent advice”, the increasing centralisation of decision-making in Scotland and the increasing tribalism within party politics eroding the supposed collegiate design of the Scottish Parliament all remain issues to this day.

2015 – Proposals for a Lobbying Bill

By 2015, Common Weal was now an independent think tank in our own right (though I was still not yet part of the team) and were members of the Scottish Alliance for Lobbying Transparency (SALT). The alliance’s campaign eventually put enough pressure on the Scottish Government that they launched a consultation asking for proposals for what a still hypothetical Lobbying Register could contain. Our own response can be read here and was as maximalist as we believed we should be. Essentially, we wanted the register to take on the EU’s definition of lobbying as “activities carried out with the objective of directly or indirectly influencing the formulation or implementation of policy and decision making process of government institutions” and that all organisations and individuals carrying out such lobbying should register the activity.
We believed that the form of communication that the lobbying takes place with should be irrelevant and the Bill should cover all face-to-face conversations, phone calls, video calls, emails or any other means by which government could be influenced and that the targets for regulated lobbying should cover all elected MSPs as well as senior civil servants and advisors to Ministers.

2016 – The Lobbying (Scotland) Act

The Bill to create a Lobbying Register was introduced in October 2015 and became law in April 2016. The Bill that was passed was significantly weakened from the original proposals with our own Robin McAlpine being quoted in the Parliamentary Chamber during the Bill’s debate saying:

“This legislation is still not as strong as we’d like but the Scottish Government has been listening and we’ve definitely made progress. Above all, there is a commitment that this is a foundation which can be built on in the next parliament. Hopefully Scotland is moving towards a system of lobbying transparency it can be proud of.”

Despite that hope, the rollbacks were substantial. The Bill as passed limited the scope of people being lobbied to MSPs, Ministers and some senior civil servants (so, not to the advisors of MSPs) and regulated lobbying would only take place if the conversation was “oral, face-to-face communication”. This meant that letters, emails, phone calls or other communications would not count as “lobbying” even if they made the same “ask” as a face-to-face conversation. Concerns were also raised at the time that while “face-to-face” was taken to include video calls (which were much less ubiquitous pre-pandemic than they are now) it would not include the same call taken with the lobbyist’s camera turned off. Another significant issue is that the burden of reporting lobbying was turned from it being the politician’s duty to report when they had been lobbied to it being the duty of the person doing the lobbying to report when they had done so. This created a massive power imbalance whereby if we report a meeting we have with an MSP and it is slightly ambiguous whether we lobbied them or not but they turn round and said “I didn’t feel lobbied at that” then there are no consequences but if we don’t report that meeting and the politician says that they did feel lobbied, we could be fined.
Other loopholes noted within at the time covered problems such as exemptions for meetings called by the MSP etc rather than by the lobbyist as well as blanket exemption for “small” organisations containing fewer than ten Full Time Equivalent employees – an exemption that Common Weal technically falls into but voluntarily ignores. We believe that many other explicitly lobbying organisations and think tanks also fall into this “small business” exemption but we do not know how many deliberately use it to hide their lobbying. Indeed, earlier this year when we received our Grade A rating for financial transparency from OpenDemocracy, their report noted that Common Weal, alongside IPPR, are one of only two political think tanks in Scotland who disclose their lobbying activities at all.

2017 – The Lobbying Register

The Lobbying Register launched in October 2017 and Common Weal registered as regulated lobbyists shortly afterwards (despite qualifying for the Small Business exemption noted above).
It’s fair to say that getting used to the procedures took some time and we did encounter teething problems along the way – mostly in terms of getting our language precise and correct on the forms. Indeed, one of our earliest registered lobbying instances from this time was found to have some technical clarifications earlier this year and had to be corrected (it involved a query over whether us lobbying a group of MSPs at a party conference constituted one instance of lobbying the entire group, or several instances of lobbying each individual members of the group about the same topic – the event was the former).
In June 2018 one of our lobbying instances made national news and serves now as a highlight of the problems that come with another of the exemptions – meetings called by an MSP.
In early 2018, then Transport Minister Humza Yousaf invited Common Weal to brief him on our proposals to nationalise ScotRail (Lobbying Instance 1609). Our initial attempt to register our lobbying (which went beyond merely briefing but actively advocating for the nationalisation to take place using our policy paper as the model, in particular by activating the “break clause” built into the franchise contract to terminate the existing private lease early) was initially rejected by the Lobbying Register under the above exemption but, feeling that the weight of our lobbying was sufficiently beyond the scope of the invitation, we successfully appealed. Had we not done so or had we been unsuccessful, this meeting would have gone unrecorded and unreported.
ScotRail was eventually nationalised in 2022 using the contract “break clause” just as we lobbied.

2020 – Common Weal Expands Lobbying Activities

Common Weal has always actively campaigned for our policies but the years leading up to the pandemic saw us increasingly lobbying government and Parliament. We set up networks of experts in various fields and formed them into our Expert Working Groups who have produced some of the most detailed and comprehensive policy in Scotland. The first of these was our Energy Working Group who have spearheaded our campaigns around the public energy company, home and building standards and heat networks (having more success with the first in Wales rather than Scotland but we have also been instrumental in pushing for the upcoming regulations on passive housing). During 2020 we formed our Care Reform Working Group who have similarly led the campaign for a National Care Service as well as holding the government to account over pandemic policies in care homes. Our Board of Directors are also active within their own spheres of interest and have often met MSPs and Ministers to speak on behalf of Common Weal. Finally, we have a national network of activists who have successfully campaigned on many issues within their own interests such as Fracking, Rent Controls and Land Reform. Crucially, all of these experts and activists are unpaid volunteers even when many of them are trusted by us to speak on our behalf.

2023 – Reform of the Register

Despite the debate over the initial Register Bill calling for a review of legislation in what is now the current Parliament, this has not yet happened although the Register itself conducted an internal review of use of its website portal this year which highlighted some issues around difficulty of use. In particular, it was easy to accidentality save entries as a draft but forget to actually submit them. Guidance around how to write a properly compliant registration entry was also somewhat unclear and many organisations (including Common Weal) had to have a conversation with staff at the register to edit entries into a compliant form. Staff turnover was a particular issue for some and appears to have contributed to at least a few organisations (again, including Common Weal) missing key deadlines on lobbying registrations – Common Weal has one entry marked against us in the Lobbying Register Annual Report where we missed a deadline to register that we had not engaged in any lobbying for a six month period – a “nil return” – at the height of the pandemic that we have attributed to staff turnover at the time.
The Register have recently rebuilt and reformed their website to improve guidance and make it easier to see where entries may be languishing in draft form. Common Weal’s early experience with the new dashboard has been positive.

2023 – Volunteer Lobbying

On August 9th 2023 Common Weal received an email from the Lobbying Register team querying a recent instance of lobbying (Registered as Lobbying Instance 43415) in which Mark Smith, one of the members of our Care Reform Group, had been in attendance alongside one of our paid staff members. This email highlighted an exemption that had apparently always been part of the Lobbying Register Act but we had never been pulled up for it until now. Under this exemption, only lobbying conducted by paid staff of the organisation counts as lobbying. Unpaid representatives of the organisation are never counted as registered lobbyists. In order to make this instance of lobbying compliant we had to remove Mark’s name from the list of lobbyists in the entry and edit the “description” of the meeting to say that he was “also in attendance”. This, on the whole, was not a major change to the entry and still allowed the entry to be registered and placed in the public domain and future similar meetings would only require a minor adjustment to our company procedures to keep them complaint but it threw up a much more serious problem for us. As said earlier, we trust many of our experts, board members and volunteers to speak explicitly on behalf of Common Weal and there had been several times when meetings took place without a paid staff member in attendance. After querying with Register staff, we found that entries that had at least one staff member in attendance could be edited in a similar manner to instance 43415 but any instance of our lobbying that took place without a paid staff member present would have to be deleted from the Register. Three such entries have now been deleted. These were a meeting with Ben Macpherson in 2018 (Formerly Lobbying Instance 1386) to discuss housing policy and Land Value Capture, a meeting with Macpherson again in 2020 (Instance 18518) to discuss Community Asset Transfers and a meeting in 2022 with Anas Sarwar and Sarah Boyack (Instance 32448) to discuss our policies on the National Care Service and National Energy Company.

For emphasis – Common Weal has been forced, by the letter of the law, to be less politically transparent than we have been up until now and we have been forced to delete from the public domain instances where we have explicitly and deliberately lobbied members of the Scottish Parliament.

We have no information on how many other think tanks and registered lobbyists have been forced to delete entries in this manner or will have to do so once such ‘unlawful’ lobbying entries are discovered. We have no idea how many organisations deliberately exploit this loophole to avoid registering their lobbying attempts.
It is clear that if an organisation wishes to avoid making its explicit lobbying public then it has access to at least three easy-to-use loopholes to exploit. They may ensure that they meet the “small organisation” threshold of fewer than ten FTE staff. They may conduct their lobbying via email, phone call or without their webcam turned on. Or they may send an unpaid intern or volunteer to lobbying for them.
For the record, I have nothing but the highest praise for the staff of the Register. Without transparency; we have no democracy. The staff of the Register are therefore the foundation of both and they have never been anything less than helpful in any of my interactions with them. But it is clear that they are being forced to apply a badly broken piece of legislation that is in urgent need of reform.

A Common Weal Transparency Register

This is an unacceptable situation to be in – not just in general but specifically for an organisation that is founded on the principle of democratic transparency and was a core campaigner for this lobbying register to be created in the first place.
We have discussed various mechanisms to ensure that our lobbying is registered in the public domain until the Lobbying Register Act is amended (which it clearly must be and urgently) such as ensuring that staff are always present during lobbying meetings (which would be difficult for a small organisation with a large volunteer network, particularly for physical face-to-face meetings) or by paying our currently unpaid volunteers (administratively tricky and financially burdensome given our limited budget). That we are being forced to discuss bending the letter of the law in order to be MORE democratically transparent than we are being told to be is obviously absurd.
In the end, we have decided that a compromise stopgap is to create our own unofficial “Transparency Register” for our website that will include not just our official regulated lobbying but all of our lobbying that would have been regulated and placed on the official Register if it wasn’t for the loopholes in the legislation mentioned in this timeline. This will include meetings that take place between politicians and our volunteers or board members without a paid Common Weal staff member present. We have already constructed this list and are testing it internally before we launch it on our website in the near future.

Our Asks

We call for all other political think tanks and advocacy groups in Scotland who are not on the Lobbying Register to start reporting their regulated lobbying. Just as think tanks who do not transparently disclose their sources of funding should be treated with a degree of suspicion, the same should apply to those who do not disclose their attempts to influence our government and Parliament. We call on all other think tanks, activist groups and other organisations who are members of the Lobbying Register to consider producing their own lists – particularly if they, too, have been forced to delete or to not register instances of lobbying due to a loophole. We call on organisations that have deliberately used such a loophole to avoid registering lobbying to be named and shamed.

Most importantly, we call on the Scottish Parliament to immediately and urgently move to amend the legislation to close these loopholes and to bring the Act more closely in line with the original proposals in 2015.

Transparency in Government is absolutely vital at all levels; without it we may as well not have a democracy at all. Just this year we’ve actively called for improvements to Freedom of Information and to the transparent disclosure of statistics. It seems we need to refresh our campaign for transparency in lobbying too. As said, if we don’t know who is talking to our politicians and what they are being asked to do we cannot say if an announced policy is coming from a position of principle on the part of the politician making the announcement or because they have been nudged to that position by a lobbyist. This doesn’t just apply to ‘dark and shadowy forces’ that we happen to disagree with, it has to apply to us too. You, as a voter, must have the right to see how we are talking to and influencing members of Parliament (if only to see if your generous and equally transparent donation is having a positive impact). We are not at all happy to have had to delete from the public record our attempts to tell you how we’ve influenced politicians because a loophole in the legislation made that disclosure unlawful. We are not happy that others may have fallen into the same hole and we are even less unhappy with the idea that others still may have jumped into that hole willingly and deliberately.

Finally, if any MSP reading this would like to hear from us directly so that they can help to close these loopholes, then please let us know and we’ll set up a meeting to chat. And then we’ll tell the world that we’ve lobbied you.

3 thoughts on “Lobbying Transparently”

  1. What a mess. Ridiculous that this sort of shoddy legislation is being passed, and that the actual objective of the legislation is being obstructed. Unless, of course, Scotgov actually wants it to be obstructed …

  2. What a waste of time and effort to comply with poorly designed legislation. Who writes these rules? On the positive side, Commonweal is (once again) well placed to show how to align aims and values with policy and practice. Would a petition to parliament help?

  3. Everyone understands “loophole” as an unforeseen non-compliance but these seem deliberately engineered.

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