Our main item of business this morning is our inquiry into lobbying. At our previous meeting, the committee agreed to recommend the introduction of a statutory registration scheme for commercial lobbyists operating in the Parliament and a voluntary code for all those who lobby MSPs. The clerks have prepared two issues papers to address the two elements of our proposals. The committee will see that we need to address some fairly complex issues and therefore might wish to take further oral or written evidence—or both—or consult affected organisations on our proposals. I suggest that first we consider the paper on statutory regulation section by section. The first section covers the problems inherent in defining lobbying and commercial lobbyists. Suggested definitions can be found at paragraphs 14 and 20. Do members have any comments on those definitions?
This is a very difficult area. When we define lobbying, we must consider which organisations should be covered by the registration scheme that we agreed to proceed with last week. I am happy with the definition in paragraph 14, because it contains the important phrase "in return for remuneration". What we have been trying to address from the outset is the fact that organisations and companies are paid for such advice and information; our focus is not just direct, face-to-face lobbying. Both those elements are included in the definition outlined in paragraph 14. Although some fine-tuning is probably needed, I would be happy to use that definition as the basis for proceeding.
What about the definition of commercial lobbyists in paragraph 20?
It goes a long way towards meeting our aims. The important phrases are "in return for remuneration" and
Although I welcome the suggested definitions as starting points, I am not sure about the premise on which we are basing them—as I was trying to point out in an ungainly way at our previous meeting. The definitions are good if our concern is to target commercial lobbyists, but I am more concerned about having a more transparent system, so that we can see who is actually doing the lobbying. In other words, I am less concerned with the lobbying companies and professionals than I am with the people behind them, the clients.
You are absolutely right to mention that and we will consider it later on. However, we have to start by defining what we mean. A fortnight ago, we decided to register commercial lobbyists, so it is only right that we should define what a commercial lobbyist is. That is what paragraphs 14 and 20 are about. We must have a definition before we consider further details of what we want to find out.
I agree. It is a good way forward and I do not have any problem with it. It certainly takes us forward on the route of registering commercial lobbyists. For example, paragraph 14 suggests that
That is absolutely right. It is not meant to be a definition of lobbying.
All I am saying is that I welcome the paper and think that it is a step forward, but the reservations that I had last week are still there. We are in danger of expending too much energy going down the wrong path and of missing the real target, which is those who are doing the lobbying.
I do not want to go over ground that we have already covered. The committee agreed a fortnight ago to register commercial lobbyists and to have an advisory scheme for all lobbying. The next paper that we will consider today is about the whole idea of lobbying, but the paper that we are considering at the moment is about what we focused on two weeks ago. It is important to put that into perspective.
The definitions are perfectly adequate as a starting point, as they make for simplicity and catch commercial lobbyists. I do not think that they will put off voluntary organisations and charities. However, I would like to ask the clerks a question. If a charity employed somebody in the normal course of events and, as a one-off, wished that employee to approach MSPs because a particular change in the law was detrimental to it, and if there were no extra cost to the charity of doing so, would it be caught by that definition?
No, it would not. We are considering the registration of commercial organisations that lobby. Somebody who was employed by a charity, whether full-time or on a short-term basis, would still be employed by that organisation, and the registration scheme applies only to third parties.
That is helpful. I do not think that there is any need to cover charities or voluntary organisations that have a charitable purpose.
I am quite happy with the definition, which encompasses the people whom we are really looking for: those who work for professional lobbying firms. The definition separates that activity from the work that is done by charities and voluntary organisations. As Tricia Marwick said, the phrase "in return for remuneration" is the key to it. Nobody reading that definition would be in any doubt as to whom we are targeting.
If members are generally happy with that, we shall move on to the next section. Paragraph 21 lists the four aspects of the registration framework. Paragraphs 22 and 23 cover the parameters of the scheme and state that the committee should consider whether we should require commercial lobbyists to register on a company or individual basis, and whether we should issue a declaration
The parameters of the scheme as regards lobbyists are dealt with in paragraph 22. I think we should deal with it along with paragraph 24 because we are asked to make a decision about whether the company or the individual staff members who are carrying out the lobbying or other activities should be registered. I would like the company to be registered but also that the names of the staff who are engaged in the work be disclosed.
I go along with the idea that the company should be registered and should provide a list of the staff who are involved. As Tricia Marwick said, that would tie in with the paragraph that deals with the information to be disclosed.
I support that in the interests of transparency, which Kenneth Macintosh was talking about earlier.
Paragraph 23 is important in light of the discussion that we had about not creating barriers to access to Parliament.
That was one of my main concerns.
The fourth bullet point of paragraph 24 suggests that we consider whether commercial lobbyists should be required to disclose
Everyone knows that the Convention of Scottish Local Authorities makes representations on all local government matters. It would be surprising if it did not make representations on a bill. I do not think that COSLA would need to be restricted if its activity had a more general scope. If such an organisation discloses the general subject of the lobbying, that ought to cover it.
I was interested to know whether contingency fees are commonplace. We did not hear any evidence about that, apart from a Canadian example.
We have not received much evidence on that.
We have had initial indications that contingency fees may be commonplace in contracts associated with planning applications, but we can ask some of the commercial lobbyists about that.
I think that we should know more about contingency fees.
On the issue of fees received, I imagine that some organisations and companies might take exception to having to state the absolute detail. I am not suggesting an alternative, but I think that the question should be kicked around a little. Instead of asking for the exact fees to be recorded, perhaps we could have bands of fees. That might go some way towards offsetting some of the concerns that people might have about disclosing the exact fee. As long as the bands were small enough, that might be a way of overcoming potential problems.
Although the issue of fees is important, the most important issue for me is expenditure. I want to know how much money is being spent on lobbying, not how much the lobbying company is making. There is a lot of detail to be worked out, which we will be able to do once we have heard more evidence. It will be quite tricky to pick up on how such money is spent. For example, one mail shot might have a certain amount spent on it while the cost of a general awareness campaign might amount to hundreds of thousands of pounds. It would be more important to know about the large campaign than it would be to know about the mail shot.
Do you support Tricia Marwick's suggestion that we band the fees?
Yes. Much earlier in our evidence-taking process, I thought that we might take an approach similar to the one that we took in relation to donations to political parties and set a band around the level of £5,000, for example, and require people to declare spending that is higher than that. In other words, we would set an expenditure level that would miss out the charities and the families who might send a mail shot to every MSP but who operate on a small scale.
There is an issue of propriety in relation to the charging of contingency fees. Perhaps we should take oral evidence on the matter as I have never heard of contingency fees being charged in the House of Commons. It seems a dubious practice that someone should be paid because he has been more successful than others in influencing MSPs.
We have to take further evidence on fees. Before we think about setting bands, we need to know about the kind of fees that are being charged. There is no point in arbitrarily picking figures.
I have a couple of concerns about paragraph 25, which says:
Do other members agree? I think that it is important that we take evidence on that point. Tricia suggests that we write to the Law Society of Scotland. Would members prefer to speak to a witness at a committee meeting?
I would prefer to ask a witness to come before us.
Absolutely. I do not want to prejudge the outcome of our deliberations, but I think that professional, full-time lobbyists will adapt to whatever registration scheme we set up. Our biggest difficulty will be with law firms with public affairs clients and with the public affairs business in general. A great deal of work needs to be done. We should consider things from the companies' point of view. Companies are entitled to commercial confidence. They are entitled to approach a law firm or any other firm to ask for professional advice and to receive that advice in confidence. Where we would come in would be when the companies approached us. That is the relationship that I am concerned about. If we are trying to register the commercial lobbying organisation, it will be interesting to see how we intervene in a relationship between two commercial companies. It is a very interesting area, and one on which I would like to hear a lot more before we proceed much further. I would like to receive some written evidence from companies followed by oral evidence.
I am not ruling out the possibility of taking more oral evidence at some point. However, I am painfully aware that we are now two years into the Parliament, so—although I do not want to rush the registration scheme just for the sake of it—if we are to take more evidence, it should be very focused.
I suggest that we write to the Law Society of Scotland on that point, and that we wait for its reply and take it from there.
A good way to deal with Tricia Marwick's point would be to ask for written evidence. If the committee then felt that that was insufficient, it could decide to go deeper into the matter. That may well expedite the process. I assume that the key decisions have been made.
I will proceed on that basis, if members are content.
If the issue is just speed, would it not be quicker just to invite the Law Society in? That may be a daft question, but—
Would Tricia Marwick like to respond to that, because she is the one who has reservations?
We have other hurdles to leap over before we make decisions, so we may as well deal with things quickly.
I have no problem with inviting the Law Society to give oral evidence, but I am not sure from today's discussion what the purpose of that would be. If we have decided that there is to be a registration scheme, what are we going to ask?
What concerns us is paragraph 25, which is about whether there is an issue of privilege protection. I would like to hear evidence on that.
The concern is that we should have focused evidence. Once we have practical proposals in draft form, we can ask the Law Society to give us its view.
We must set out clearly the terms of reference and the reasons why we have called people to give oral evidence, such as to discuss the fees. The scheme is going ahead, and we now have to discuss the fine-tuning.
Are members content to proceed on that basis?
The next section deals with the publication and administration of the register. Should it be maintained on a live basis as the register of members' interests is, or should it be published on an annual basis? Who should be responsible for monitoring the operation of the scheme?
The idea in paragraph 28 about an annual report is welcome. The proposal is excellent and goes to the heart of an open, transparent system. I am also in favour of a live register if that can be operated cheaply using the internet. I can envisage many problems with updating the register at the end of the year. We will want to know there and then who is lobbying on which issues.
As the paper suggests, the administrative costs of a live register would be great.
If the register were operated on a live basis, we would know with whom we were dealing. If there were only an annual register, a large company or lobbying group that suddenly appears might consider that they do not need to register their intention to lobby. It would be safer if there were a running register that could be kept up to date in the same way as the register of members' interests is.
If we decide on a live register, who will be responsible for administering and policing the scheme?
It should be the responsibility of the clerks to the Standards Committee to ensure that the register is updated as and when required. Where else in the Parliament could that responsibility lie? I cannot think of any department that could undertake that task. The clerks to the Standards Committee are the right people to take on such a responsibility.
I am sure that the clerks are delighted to hear that.
There is nothing like the thought of extra work to make people happy at the start of a day.
Are members content that the clerks are the appropriate people?
Paragraph 33 highlights possible European convention on human rights implications. The Parliament's legal office will be examining that complex area in more detail, but we need to note the possible ECHR ramifications at this stage.
Paragraph 35 is the section that causes me most concern, because I cannot think where we take this part of the issue. There is not much point in having a register if we cannot do something when someone infringes the rules, but I do not know what the penalties should be. I read the given examples, but I do not find any of them particularly attractive. The European Parliament's idea of withdrawing passes confers some kind of recognition on lobbyists, which is contrary to what we are trying to achieve. I would like to hear more evidence. When I say "hear", I mean "receive"—I do not mind whether it is written or oral evidence, but I would like to discuss the issue in more detail.
It would be helpful to have a further paper from the clerks on sanctions that could be applied if somebody either refused to register or approached MSPs without having registered, through deliberate defiance or through refusing to fit in with the arrangements that the Parliament had laid down. There should be a sanction. The paper mentions only three, but I am sure that there are others.
The paper lists three options, none of which leaps out and grabs you. Of the three, the first is the most enticing. The European Parliament idea of an approved pass is absolutely to be avoided, because it gives the idea that a privilege is being conferred. I suspect that we need legal advice on the issue. Are these systems the only ones that are used internationally?
There are a number of schemes. The paper gives just a small selection of them—the ones that were highlighted in the oral evidence—but we could see what other approaches have been taken.
We will make some progress on that.
At the back of my mind is whether further access to MSPs could be withdrawn if there was an abuse.
What a threat. That would mean that people could not meet me.
The second paper—ST/01/7/2B—deals with our decision to recommend a voluntary code that is applicable to all lobbyists who engage with the Parliament. I direct members to paragraph 3, which sets out two options. The first is a voluntary code with an element of monitoring and enforceability. That approach would contain an element of regulation and would require administrative support. It would also require a procedure for lobbyists to sign up to the code. We have to consider the questions that are listed in paragraph 14.
A voluntary code is a much more comprehensive approach, and it is much more likely to be followed to the letter. Enhanced guidance is insufficient.
What I am getting at, which is why I want to have this discussion, is that if we take the first option, we will have to talk about enforceability, because if we have a code, it will have to be enforced, otherwise what happens if somebody breaks the code? The code will apply to everybody.
What sanctions will be available?
That is what I am asking.
I agree with Lord James that a code is much stronger than guidance. I suggest that we take a belt-and-braces approach and have enhanced guidance and a voluntary code. We could make progress with enhanced guidance right away, whereas gathering all the bodies to agree to a voluntary code might take some time—I am not sure what our role in that would be, but we should encourage them to do that.
That is the point that I am trying to make. I was impressed by the evidence that we received from some of the commercial lobbyists that had voluntary codes. However, in my view and that of other members, at least one of those voluntary codes was not effective. If we develop a voluntary code, what will happen when that code is broken?
I continue to think that there are two elements to this. We are talking about statutory registration, for which we would expect disclosure from commercial organisations, which would have to register staff and fees. As part of that registration process, we would expect the commercial organisations to sign up to a code of conduct that will govern how they behave in their dealings with MSPs.
That would be a practical way forward. I would like to hear other members' views. Are members content with that approach?
Success rests on people wanting to sign up to the code and therefore wanting to obey best practice. If they are caught out, they will be named and shamed. The idea of an annual report on the registration scheme, which we discussed, is one way of monitoring the code to find out who is signed up to it and who is abiding by best practice. That would give MSPs a chance to decide whether the code is working.
There is general acceptance of the view that Tricia Marwick proposed. We will proceed down that route.
An annual review would be helpful. There may be little commercial lobbying, especially if commercial organisations are subject to the proposed arrangements.
We have covered this agenda item. The clerks have received much information from members this morning about how to proceed. We will produce papers for our next meeting.
Previous
Item in PrivateNext
Party Spokespersons