Official Report 469KB pdf
Agenda item 3 is for the committee to take evidence on its inquiry into lobbying. I welcome our first panel. Juliet Swann is campaigns and research officer for the Electoral Reform Society; Michael Clancy is director of law reform and Brian Simpson is law reform officer at the Law Society of Scotland; and David Robb is chief executive of the Office of the Scottish Charity Regulator.
I thank you all for taking the time to attend the meeting. I will invite members to ask the panel questions. The first question is from Cara Hilton.
Good morning. I will kick off with a general question. To what extent is reform required? As there have not been any major lobbying scandals at Holyrood to date, is there a need to introduce legislation?
Although there have not been any scandals, the fact that a scandal becomes scandalous only when someone is given access to secret information means that things might have been going on that have not been exposed.
All the research that the Electoral Reform Society has done through focus groups and our democracy max inquiry shows that the general public feel that there is secrecy and opaqueness in politics. They would like there to be more transparency, which would improve their confidence in the process and therefore potentially increase their involvement in the political sphere. We are very worried about the lack of such involvement.
Shall we go along the panel from left to right? That does not mean to say that I am on the right, as it were.
From the Law Society of Scotland’s point of view, we have detected no particular problem with the lobbying of the Scottish Parliament and the Scottish Government. However, to echo what Juliet Swann has said, I believe that to maintain public trust and confidence in the system it has to display that it is free from any suggestion that there might be a lack of transparency. We therefore agree theoretically that, although there might not be a problem, that does not mean to say that additional transparency would not help to prevent a problem from emerging in the future.
I do not have much to add to that. We have sometimes seen legislatures react hastily when there is a problem. The old adage is that hard cases make bad law. I think that Parliament has an opportunity to take pre-emptive action and ensure that, before there are any scandals, it can plug what might be perceived as a gap and take measures to underpin trust and confidence in the spirit of the democratic process.
I will not ask the next question on the list, because it is about whether greater openness would increase confidence in the political process. The panel have answered that question, so I will move on.
The “Code of Conduct for Members of the Scottish Parliament” places responsibilities on members in respect of their dealings with lobbyists. I know that some lobbying firms have their own voluntary codes. Should the responsibility for registering lie with those being lobbied, with lobbyists or with both?
Obviously, it is important for decision makers to be transparent about who they are meeting. I absolutely agree that MSPs’ diaries should be made public; equally, though, those who are seeking to influence need to bear in mind their responsibility to be as transparent as they can be. I think that a lobbying transparency register would make the MSPs’ requirement to abide by the code of conduct a lot easier because they would have a piece of paper that would tell them who people are and who they are lobbying on behalf of.
We would suggest that there has to be transparency on both sides. From recent experience, I know that, in Westminster, ministers are in effect required to make a note of the people to whom they talk about particular issues. During the passage of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill in Westminster recently, it became clear that ministers make such notes, even if they are only one line saying, for example, “Spoke to Michael Clancy about the banking bill.”
We, too, make a note of the people whom we talk to and see. I would like to say that I do that every time, but sometimes I fail and there is a rush at the end of the month to ensure that my records are up to date. However, such note taking is an important factor in maintaining transparency. If someone does it voluntarily, there is no problem about at least saying who you see or speak to and what the general topic is. That is probably all that I want to say on that point.
Cameron, do you want to come in on that?
Yes. I want to ask about diaries. I feel that the problem with diaries is that people can just include what they want and exclude other stuff. Why do you think that MSPs’ diaries should be published? I am not very clear on that.
It is a matter of having transparency on both sides. For example, it means that the constituent can see who their MSP is meeting and then look up what that company or firm is doing according to the lobbying transparency register. I would rather have such a register than have MSPs’ diaries published, but having both would allow a kind of lock-in.
Thank you.
Dick, do you want to come in on the same issue?
Yes, I will follow up on the question that Cameron Buchanan asked.
In the two and a half years in which I have been in Parliament, I think that I have spoken to about 10 companies but I have seen about 400 individuals who were constituents or, for example, people associated with charities who have appeared before the Health and Sport Committee and wanted to speak to us about a bill.
When I worked for a company we kept a diary, but we also had to do a retro diary because things would have changed during the week—for example, we were called into meetings or had to cancel meetings. Would it not involve quite a lot of work by an MSP and their staff to keep a diary up to date on a regular basis?
As I said, I would much prefer that people go to a lobbying transparency register to look for information. I am aware that some people are lobbying for MSPs’ diaries to be made public; although I am not opposed to that idea, I make it clear that I would want it to be implemented alongside a lobbying transparency register.
Would the diary run from Monday to Friday, or would it cover the whole seven days? MSPs meet people at the weekends, too.
I do not want to get bogged down by that issue, because I am not 100 per cent bothered by it. I am much keener that we get a lobbying transparency register on the statute book.
My sense is that a public diary would not so much contain things like, “On Monday at 2pm I met with Juliet Swann from the Electoral Reform Society to talk about lobbying” as simply show a list of the people whom MSPs have met and what was discussed at the meetings. That would allow people to flip back and look at the two things side by side, so that they could see what their elected representatives are doing and how their money is being spent.
I am sorry to keep pressing you on the issue, but I am unclear about how you want me to be transparent. In the 30-odd years in which I have been a councillor and an MSP, I have been transparent and meticulous in what I do. Do you want me to put down everything that I do? If you do, I will. If you are saying, “No, we want you only to publish the names of who you meet if someone is lobbying you”, that is fine. What do you want?
I see what you are asking. Meetings with constituents to deal with constituency issues are a separate matter; we are talking about lobbying and when someone comes to lobby you on an issue.
You could even list meetings by topic. Let us take this lobbying inquiry as an example. You can say, “These are all the people I met.” Obviously, your meetings with people in public—such as in committee—are open and transparent, and everyone can see what we have said. However, you could also say, “These people came to see me in private.” I do not need to know what they said; I just want to know that they came to see you about the lobbying and transparency bill. If they took you for dinner, I would like to know that too.
Does Michael Clancy want to come in on that point?
We started by discussing the code, which states:
“members should ... consider keeping a record of all contacts with lobbyists”.
That is a fair statement and a fair aspiration. The Parliament should perhaps consider whether it is absolutely necessary to change “should” to “shall”, given that the code gives a clear semaphore that it is good practice to keep such a record.
I am not fussed about diaries—to be honest, my diary is a mess and sometimes has to be revised several times a day because of the way in which the day goes. The code already makes provision for contact with lobbyists. If that is mirrored by those who do the lobbying, we will get a more rounded picture.
The issues around diaries and the bulk of meetings that Mr Lyle has described take us on to questions such as who a lobbyist is, what lobbying is and whether a constituent is lobbying on his or her own behalf when they come to see an MSP. Those questions then move us on to a further set of questions.
Richard, did you want to lead on the next question?
Yes—I will move on to those next questions. [Laughter.]
We should remember that members get on average 100 or 200 emails a day to lobby us on a particular bill or debate that is coming up. On the point that was raised earlier about cabinet secretaries and ministers meeting people, do they not have to have a member of their staff with them when they are in a meeting?
That might be a counsel of perfection.
Okay. To what extent would a register address any problems or perceived problems with lobbying?
That would depend on the nature of the register and whether it would be voluntary or compulsory. If it were voluntary, it is questionable whether it would address any problem or perceived problem with lobbying.
A good compulsory register would address the problems that we have identified such as mistrust and a lack of confidence in the process. Theoretically, if there is no scandal waiting to be exposed, a register would not change the way in which people behave. Lobbyists would still lobby, and members would still meet lobbyists, but the public would be able to see who members are meeting, what they are talking about and how much lobbyists are spending to make that happen.
09:15
In response to Brian Simpson’s point, we have to assume that the register would be compulsory rather than voluntary, because otherwise there would be all sorts of issues. Assuming the register was compulsory, Mr Simpson, how would you answer Richard Lyle’s question?
If the register is compulsory, it may well address the problem or perceived problem, but we would then have to start talking about sanctions. Would there be thresholds for and exemptions from registration? It would all depend on the nature of the scheme. Would it be compulsory for all organisations to sign up to it? Once we move towards thresholds and exemptions, we start to muddy the waters of transparency. For a register to be truly effective, it would need to be compulsory and you would have to think carefully about introducing thresholds and exemptions.
According to the witnesses, who is a lobbyist? As I said earlier, we have constituents coming in to see us to talk about a particular bill that is coming up in Parliament or whatever, and we have emails coming in daily.
Hypothetically, to my mind a lobbyist is someone who works for drug firm X and wants me, because I am on a particular committee, to press for their drugs to be put on the list to be sold. Frankly, I would be averse to meeting such people because they are pushing an individual agenda. If they want to talk to me about the general drug situation in the country, that is fine, but if they wanted to speak to me about a particular drug, I would be averse to meeting them.
Do the witnesses agree that, if a register is introduced, MSPs will have to be very careful about who they meet? If someone emailed me and said, “I’d like to meet you”, I would say to my chap, “Right, okay—set up a date.” I have not turned anyone away yet. However, if I thought that those people were coming in to lobby me to push a particular drug, I would say, “Sorry, I don’t want to meet you.”
Before we look at the definition of a lobbyist and who fits that definition, we have to start by asking what lobbying is. The definition of “lobbyist” will flow naturally from a definition of lobbying.
We would suggest that lobbying is any kind of contact that is intended, directly or indirectly, to influence policy or legislation. If MSPs are being approached by people with that type of aim, they will—whether they are an individual, an organisation or a company—fall under the definition of “lobbyist.”
I agree with that. The committee has received evidence from Bill Luneburg, who has worked on lobbying in Washington and on the US lobbying register for a number of years, and his definition is very similar.
We all instinctively know what a lobbyist is—it is someone who is paid to influence decision makers. However, lobbying per se is not a bad thing; it is bad only when it is misused. That is what we are trying to get to grips with.
To come back to Richard Lyle’s point about whether members would refuse to see people, I point out that a lobbying register would allow MSPs automatically to connect the names of people who were asking to see them with their lobbying interests, so they would be able to make an informed decision about whether to see them.
We will continue. I think that you are saying that we need to be clear on the definition of a lobbyist.
Yes.
There are international comparisons that can be drawn on; Raj Chari on the next panel is good on that.
I will direct the question at the Law Society. You suggest that the definition of lobbying should exclude
“circumstances in which organisations or individuals are directly approached with the objective of seeking views, comment or advice on proposed policy or legislation.”
Could that create a loophole?
I would not say it was a loophole. In such situations, the organisation approached is not seeking directly to influence. What is being sought from it is simply its advice and guidance. In other jurisdictions where ministers, politicians and Government officials approach organisations, that is expressly excluded from the definition of lobbying.
It is also important to acknowledge that the process of consultation by the Government is part of the democratic process and is an essential part in helping the Government in any jurisdiction to figure out what legislation is necessary and what bright ideas for legislation might be approved or disapproved of by consultees. That takes us into the realm of the whole notion of democracy. If the Government does not consult—and consult broadly—some of the policies that it adopts might not have the broad cipher of approval that gives it legitimacy.
We respond to around 100 consultations every year, whether from the Scottish Government, Whitehall departments or European institutions, which cover everything from agricultural law to wills. I have not found anything that begins with Z yet, but I will—zoology, perhaps. That gives you an idea of the extent to which our views are sought. Sometimes they are sought directly and sometimes they are sought just because something has been put on a departmental website and we have an interest in an area—let us say intellectual property law, family law or some such area of the law.
In instances such as today’s committee meeting, institutions such as the Law Society and other bodies are invited to give their views, but they are only views. It is up to MSPs whether they accept them. They are not in any way meant to influence, because we know that elected representatives have to hold in their hands a balance of interests and think carefully about what is in the best interests of their people.
You also have to bear in mind that those consultation responses generally are made public. What we are getting at is the information that we do not have access to and which it would give the public more confidence in the democratic process if they did have access to. We should not try to muddy the waters around something that is already in the public field.
Do you agree that the more exclusions we have, the more the public will see difficulty around disclosure?
Yes. You should start from the point of not excluding any category, but you also want the definition to be proportionate. You need to consider a tiny charity with two or three employees who happen to visit their MSP once in passing. That should not be declarable. Any professional organisation fills out key performance indicators and monitors what it is doing, so it should be able to offer that information to the general public.
The definition of a lobbyist could be quite difficult. If we go down the route of registering everything, it could be quite difficult for a constituency MSP. When does a local business become a lobbyist? A local business may be a major employer that employs people in an MSP’s constituency. As the local MSP, I would want to represent those people. Let us suppose that they have a paid communications person who keeps them up to date with everything that is happening. How do we get the definition correct in a situation in which there could be some crossover?
If they seek to influence legislation, change policy or secure a contract, that would be lobbying.
I understand that; it is very simple. What I am talking about is the idea that the employer needs something to happen locally to ensure that the business can progress and help constituents at the same time. There will be people who work in the constituency for that major employer, which is trying to exert influence, but when do the people involved in that effort cross over and become lobbyists? I am not talking just about the basics of changing the law. I am talking about how we can get the definition to such a state that we know when something crosses over into lobbying.
As Richard Lyle has already said, in our day-to-day lives we meet people who are trying to influence us and get their point across, from an individual who wants to discuss a planning situation right through to a licensing application. It could be anything. How do we get the definition correct so that it does not become cumbersome and bureaucratic and so that the public will believe that it actually delivers the transparency that they want?
I would say two things in response to that. First, I refer to international examples. Austria recently introduced lobbying legislation. It is an on-going process and the Austrians are realising that certain exemptions that they made are not working, so they are bringing those people into the fold.
Secondly, you are right to say that you do not want to overly bureaucratise and penalise people who are genuinely working for the public interest. However, I would flip that around a wee bit. For instance, if I am involved with a local group of people who oppose a wind farm development in your constituency and I come to see you about that, that is not lobbying. Yes, I am seeking to influence you, but that is because of my personal interest in the local area. However, if I belonged to that small campaigning organisation, I would be interested in finding out who was meeting Government officials from the company that wanted to build that wind farm in your constituency, and that is what the lobbying register would let me do.
Could we keep our questions brief, please?
Mr Clancy and Miss Swann, are you lobbyists? Would you class yourself as lobbyists?
Not all the time, but right now I am lobbying for lobbying.
I suppose that some people would describe me as a lobbyist.
That has answered my question. Thank you.
At Westminster, they have a register for lobbyists but you have to be registered for VAT before you can be registered as a lobbyist, so the very small people do not get registered—you hinted at that before. What is your opinion on that?
The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 at Westminster is not a lobbying act. It covers a small number of people and does not cover any in-house lobbyists, whether they be from charities or commercial organisations. It is not a model to follow and I hope that it gets repealed.
We would agree with that. We have been monitoring and following the developments on that act at Westminster and we made a few suggestions and suggested amendments. It does not address the perceived problem, because there are too many exemptions.
It is also interesting that, under part 2 of the act, which is the part that registers non-party campaigners such as me, I can still meet you guys and do that in secret if I want to, but I just cannot tell the public about it. It is a sham.
Stewart Stevenson, do you want to come in briefly?
It is appropriate to apologise for my late arrival. It is entirely my fault; I forgot to update the meeting time in my diary. Ironically, I was sitting at my desk going through the last three months of my diary and seeking to identify what was lobbying, and I came up with a list of 17 answers to that question, but I found it difficult to do, which was illuminating.
I would like to ask a brief question. Do the panel members think that the most important thing is to catch activity, or to catch organisations and people?
Activity.
We would agree with that.
09:30
How do proposals for a register sit alongside Parliament’s founding principles of accessibility, openness, accountability and the sharing of power?
I think that the proposals sit well with that, in one sense. The general spirit behind the inquiry, which is to improve transparency, to make visible things that are, perhaps, less visible at the moment than they ought to be, and to dispel public mistrust arising out of that, has to be a good thing. There is a danger—which we have been skirting around in this discussion—that if the system becomes too bureaucratic, if the definitions are too wide and if extremely small-scale activity needs to be declared, there could be a deterrent effect. If the regime is seen to be too difficult and challenging for occasional, small-scale non-professional lobbyists—a lot of charitable activity would fall into that category—it could have the perverse effect of making Parliament less accessible. The challenge here is to strike the right balance.
Obviously, the system has to be proportionate. The aim is to enhance democracy and build on the reputation that the Parliament has for transparency and openness. Given that the situation in Westminster is as bad as it is, the fact that we are having a proper lobbying inquiry up here is incredibly welcome and enhances the reputation of the Parliament. The production of a decent, comprehensive and proportionate register would enhance that reputation still further.
I suppose that it depends on the definition of the activities that are going to be regulated. However, the activities of the Parliament that most clearly attain the consultative steering group objectives of openness and accessibility—for example, the Public Petitions Committee—would probably not be impacted adversely by having a register of lobbyists. Similarly, Richard Lyle would still get 400 members of the public contacting him over a period of time, from his constituency and from other constituencies, in relation to proposals that are brought forward.
We all know that, in certain circumstances, MSP inboxes get filled to overflowing because of certain proposals going through Parliament. However, some of the proposals attract little attention, if any, from members of the public and it is only anoraks like Brian Simpson or me who might be at all interested in, for example, some small change to water quality regulations—the water industry will probably come down hard on me about that. In that regard, you can trust the public to use the openness and accessibility of the Parliament in cases where issues that the Parliament is considering affect the public most.
We will move on to the next set of questions.
If there is a register, what information would you include in it? You can ignore the diary factor for the moment, as we have covered that. Would it just be the basic guts of the meeting or something else?
I would want to know who is doing the lobbying, and I would also be interested in their employment history, because of the revolving-door principle. I would want to know who is lobbying whom, on whose behalf the lobbying is being done, what the lobbying is about and how much is being spent on it. I am quite forceful about that.
We agree with most of that. However, although we are not averse to the suggestion, we do not quite understand why it is important to disclose the financial amount that is being spent on lobbying. I do not see that that would serve any real purpose, and it concerns business-sensitive information. I do not think the cases were made in that regard. In addition, from the Law Society’s perspective, there might be a problem for solicitors who advise clients on parliamentary procedure and interactions if they have to disclose details of their clients, because of their duty of confidentiality.
Do you think that there should be a fee for registering lobbyists?
We need to have some way of financially supporting the register. However, we do not want to exclude people who cannot afford to pay, who do not want to pay, or who do not understand that they have to pay. It starts getting a little bit complicated. I would look at international examples and see how arrangements work elsewhere.
If a fee is introduced, it should be proportionate to the size of the organisation.
Who would administer the register? Do you have views on that?
Who would you have administering the register? Would they need to be independent?
That is something that the inquiry needs to think about. It needs to be independent of the Government, of course. I would identify the OSCR model as being useful—it is an independent regulatory body that works.
That is very kind—thank you.
I keep coming back to Juliet Swann—I do apologise, Juliet. You said, basically, that—
Keep it brief, please, Richard.
Let us say that Mr A N Other of drug company A wishes to meet me. I have to request from him all that you described earlier, including why he wants to meet me—
No, that is already on the register.
Sorry?
He will already have submitted that information. That is his responsibility.
So he has already registered that and I need to record only that I met Mr A N Other from drug company A, and we discussed the health bill.
Some proposed legislation concerning pharmaceuticals, for instance—yes, exactly.
Who would monitor the register? What sanctions would there be?
Let us go back to the previous question about whether the register should be independent. Of course the register should be independent—independent of Parliament and of Government. That takes us into commissioner territory. The very good note that the Scottish Parliament information centre provided discusses the Office of the Commissioner of Lobbying of Canada. It looks like that might be a good fit. It depends. We would have to think carefully about it, when and if any bill is produced. If there were to be an independent commissioner for lobbying, that would be the body that was charged with monitoring, and there could be provision for a sanctions regime.
In our memorandum of comments, we discuss the voluntary system that exists at the European institutions. The sanctions there do not have a great deal of punch—that is the best way to describe it—but you could think in terms of deregistration. If we are thinking about a compulsory register, deregistration would clearly be the principal sanction that one would exercise. There might also be a system of fines. It could be made a criminal offence to be a lobbyist without being on the register. That would import criminal sanctions for breach of that.
Those are the kinds of things that one would want to examine closely when constructing a completely effective register.
I would reinforce those points. I have been looking at the evidence that has come to the committee so far. I have not seen much discussion about costs and resourcing implications. Most of the discussion has been about principle, but I would urge the committee also to consider the practicalities. I would have liked a bit more time to consider the Canadian model. If public confidence is going to be underpinned, the evidence suggests having an independent body with sufficient resource and clout to police the regime.
We should not delude ourselves that the gain in lobbying that we want will not need to be invested in significantly. A toothless, underresourced regime would not do anything to underpin public confidence.
So you think that an existing body such as the Standards Commission for Scotland could take on such a role.
It seems closest to what the Standards Commission does, but the commission could not do it without a substantial addition to its resources.
I agree on the resources question. This is about our democracy. If we value our democracy, we all need to invest in it to ensure that it is transparent and that people have confidence in it.
Thank you. How will the requirements of a register fit with the existing requirements of charity law? Will there be an overlap between a lobbying register and the register that is held by OSCR, for example? What discussions have there been between OSCR and third sector organisations about the implications of a lobbying register?
As has already been mentioned, the passage of the lobbying legislation in Westminster towards the tail end of last year excited a great deal of activity throughout the voluntary and charity sectors. We were engaged in quite a lot of discussion with interests on both sides of the border in connection with that legislation. It has been said already that that legislation has quite a different focus from what we are discussing here, but it raised the general issue of the legitimacy of campaigning activity from charities and it has been heartening to see a recognition—certainly in the Scottish debate—that that is a perfectly valid activity that nobody wants to see suppressed.
In our written evidence, we flagged up that in the Charities and Trustee Investment (Scotland) Act 2005, which is the main instrument setting out what is appropriate for charities, there is a restriction on political activity. That restriction usually comes into play close to campaigns—it is not appropriate for charities to campaign for the interests of a political party. However, campaigning on issues is of course the life-blood of charities.
Where campaigning strays into lobbying is the definitional territory that was touched on earlier—it is tricky but, at the moment, the 2005 act has a backstop prohibiting charities from overtly political activity and that works quite well. Therefore, I do not see much tension between that act and the introduction of a new lobbying regime. We would want to work closely with the body that was charged with administering and policing that regime because we see lobbying as an issue that affects public confidence.
At the end of the day, most charities and campaigning organisations publicise their successes in order to enhance their supporter base. A register of lobbying activity would ensure a level playing field between non-governmental organisations and corporations—and, indeed, between small, local campaigning groups and corporations. We have to remember that it is not just about charitable campaigning; it is about the other sorts of lobbying that go on, which charities are often fighting against. Charities need to have that transparency in order to inform their campaigning activity.
One thing that this Parliament is good at is in allowing individuals and organisations to contact individual MSPs to ask them to lodge amendments to bills. I have had meetings with two organisations in the past couple of weeks that wished me to support their views on particular amendments. What is your view on the impact of introducing new lobbying regulations on such activity? Would it lessen the number of people who come in to ask MSPs to lodge amendments if those people had to be declared because they were pushing a policy or trying to change a policy? Would that then stop individual organisations or even MSPs lodging amendments because they would be seen to be supporting a particular issue?
Declaration would not stop people from doing that; it would just mean that everyone could see that they were doing it.
If the regime of declaration, registration and documenting were to be made particularly onerous, it could have a deterrent effect.
09:45
The submission of suggested amendments is obviously an activity that is intended directly to influence changes in legislation. If an organisation or person were going to the extent of submitting amendments to MSPs for consideration and trying to influence the MSP to propose those changes, that would fall within the ambit of lobbying, so in our view such organisations or people should be required to register.
Would that mean that people might not propose amendments when they should because they might be seen to be tied to a particular cause, concern, or organisation?
If someone feels so strongly about something that they propose amendments, they would not have a problem with understanding that it would be necessary for them to register.
I have a wee follow-up to that. If you are thinking that registering lobbyists would have a cooling effect on MSPs lodging amendments, I will say that the kind of amendments that the Law Society proposes to MSPs are, in our view, designed to clarify or improve legislation, generally. The question is about the objective of the amendment. As we know from many instances at stage 2 or stage 3 of a bill when there have been several hundred amendments, many from the Government, and many from other organisations and individuals, the amendments are debated but there is no guarantee that they will be accepted.
To raise issues in debate is part of the purpose of a Parliament; we want debates on issues. Just because an elected representative signs off an amendment to be debated, that does not necessarily mean that they have signed up to the whole agenda of the people who are promoting the amendment. The MSP might just want a debate that they think would be meritorious.
It is perhaps not terribly helpful to deal with specific examples, because we are talking about broader considerations. For example, I used to be a lobbyist for RSPB Scotland; that was my job, and in it I influenced the climate change legislation. We would have declared that we were lobbying on climate change, that we were speaking to ex-MSPs and that we had spent £X doing that, as would be required on a register. The register would not necessarily say that I proposed a specific amendment to the bill to improve heath land through muir burning, for example; it would just say that I had sought to influence the climate change legislation in the interests of the RSPB.
This is not an area in which we have a lot of expertise to offer. From listening to the debate, however, it seems to me that it would be possible to construct a register that was sophisticated enough to deal with different categories of activity. Many people contact MSPs and other interested parties about the passage of legislation; such activity is seeking to influence policy and therefore should be caught. However, there might be a simple and quick way of registering activity that is different from the more long-term and commercially driven lobbying activity, registration of which is the real purpose behind what the committee is doing here. You could have a tiered system, but you would have to make it simple to use; there might be ways of doing that.
At the end of the day, is there not already a requirement that an individual who contacts an MSP should be the MSP’s constituent, unless they are lobbying? Usually, people are told, “I need to know your postcode so that I know that you are my constituent.”
No—not especially.
Perhaps there is something in that to do with the difference between a constituent who comes to talk to you, or even a constituent who sends you information about a piece of legislation, and someone who is neither of those.
There are occasions when I email people back and ask whether they can send me their address or whatever, but across the broad spectrum, we get hundreds of emails on various issues. With the greatest respect, we do not have enough time. I am in Parliament from half past 8 in the morning until perhaps 9 o’clock at night, but I do not have the time to look at all my emails. I have staff who do that.
If we think about, for instance, activity around the Marriage and Civil Partnership (Scotland) Bill, which included many emails from different organisations—
I got many of such emails.
Many came from constituents. The Equality Network would declare itself as a lobbyist, but all the individual constituents who happened to share its views or the views of the Scotland for Marriage coalition would not have to declare their interests.
Every MSP has been lobbied when we have been dealing with things such as the Marriage and Civil Partnership (Scotland) Bill. We are now dealing with dangerous dogs, for example. As Richard Lyle said, we have no idea where things come from, and we have to reply. Every single MSP is contacted in that way. Therefore, I am not sure about what you suggest. How would you monitor compliance? If something was not correct, would you introduce a sanction—financial or otherwise? Would you strike people from the register?
Will witnesses keep their answers brief, please?
Michael Clancy has already touched on that in talking about compliance. There are very good international examples. Canada provides one and, oddly, the American system is quite good—albeit that there is a lot of money running around. People know how much money is running around.
I have forgotten the first part of Cameron Buchanan’s question. I am sorry.
It was connected to monitoring and sanctions. All MSPs are lobbied. It was not really a question; it answered your question. We get masses of emails, but that is not the point. How would we monitor?
As I said, you could identify organisations that lobby, but not constituents.
That is not easy.
Its not being easy does not mean it is not possible. I looked at the debates around the Charities and Trustee Investment (Scotland) Bill, because there are similarities in respect of what that legislation sought to do in improving transparency and confidence in the charitable sector. There was a lot of chat about how that is really difficult and complicated, and how it might work. Just because something is difficult and complicated, that does not mean that we should not do it.
I want to make a small point about amendments that the Law Society of Scotland and many others have provided. In the past, the practice has been that many MSPs who have lodged such amendments have said where the amendments came from. Does the panel think that it should be mandated in the “Code of Conduct for Members of the Scottish Parliament” that when an amendment comes from an external body, that should be stated when the amendment is dealt with?
I would like to think that people can recognise the excellence of our amendments without our being identified. However, you are absolutely right; it would greatly assist transparency if MSPs said as a matter of course that an amendment originated from the Cambuslang renewal trust, the Law Society of Scotland, or wherever. That is quite a clear and easy low-hanging issue.
Does Richard Lyle want to ask a question about thresholds?
I think that my question has mostly been answered. Should there be a threshold for registration? We have talked about individuals, constituents and lobbyists. To me, an example of a lobbyist is a drugs company that comes to me to say that it wants me to push its drug in the Health and Sport Committee. I would say no; in fact, after the meeting stopped and it said “Bye”—
Keep it brief.
Should there be a threshold and what exemptions should there be from the register?
We need to remember that we are talking about paid lobbyists—not volunteers or constituents. Richard Lyle was entirely accurate in his example of what would be a paid lobbyist.
I touched before on the fact that I am, at this exploratory stage, in favour first of considering international examples and, secondly, of including everyone and then working out what the exemptions and thresholds should be. There should probably be some exemptions and thresholds but, as Austria has learned, it is necessary to be quite flexible about where they sit, and to come back and make changes as we learn how the system works.
If we were to introduce thresholds, we would introduce potential loopholes for businesses to circumvent the legislation. Who would monitor the thresholds? Would it be the responsibility of the potential lobbyists to monitor themselves and to say when the thresholds were reached? Who would check and ensure that they were monitoring those thresholds correctly and adequately?
If we start to talk about exemptions, we must talk about the public’s perception of transparency. If we exempt one organisation but require another to register, the public will not necessarily understand why one has to register but the other does not; they might not understand the difference between the two organisations. Exemptions might be a little bit problematic in that way.
That is it. As I said, we should keep everyone in to start with and then, because the system would be new, take a flexible approach. However, I would favour there being no exemptions or thresholds.
I agree with that.
All or nothing.
Aye.
Yes.
I find the question difficult. My day job is to police and maintain a comprehensive register of Scotland’s charities. In that respect, we have an advantage over other parts of the United Kingdom, where the register is not comprehensive. However, as soon as we introduce comprehensive reach, questions of proportionality bite hard.
We need to strike a balance and consider what it is reasonable to expect of very small-scale, non-professional and occasional engagement in lobbying. That is very difficult. The devil will be in the detail and it is difficult to generalise on the matter. What my fellow witnesses have said must be right: the maximum public confidence will derive from the widest reach. However, that might be the hardest regime to operate in practice.
The level of reporting might be where we achieve proportionality: perhaps some people could declare annually and others quarterly.
We have exhausted our questions. Unless the witnesses have any points that they would like to put to us before we finish, I thank you all for attending.
09:58 Meeting suspended.
We resume the meeting. I apologise again for my administrative failure to be here on time.
It is my pleasure to welcome our second panel of witnesses: Robin McAlpine, who is the director of the Jimmy Reid Foundation; Professor Raj Chari, who is from the department of political science at Trinity College Dublin; and someone who is familiar, perhaps one might even say overfamiliar, with some of us—Professor Susan Deacon. She is now translated from her humble origins to assistant principal corporate engagement at the University of Edinburgh, but she stresses that she appears in a personal capacity rather than as a representative of the university.
We will move straight to questions. At the end of questioning, I will invite the witnesses to make comments if there are matters that they think that we have not covered. That approach seems to work.
Good morning, panel. I will kick off the discussions. To what extent is reform required? There have been no major lobbying scandals at Holyrood, so is there a need to introduce legislation?
Yes—absolutely; there is no question about that. The influence of lobbyists in all the work of the Scottish Parliament and the Scottish Government is significant. The profession spends an awful lot of money seeking to move democratic outcomes in the direction that it wants. That is fine; it is an important part of democracy. However, it is essential that people understand and see the scale of lobbying.
The fact that there has been no specific scandal is neither here nor there. The approach is like using any form of data collection that is available to identify the scope of something important that is happening in society. For example, we do not need to have specific scandals about racial bias in hiring workers to see that it is good to keep data on the hiring of minorities, so that we know whether there is a problem.
We know little about the scope of the lobbying that is going on, so it is hard to see whether there has been a scandal. It can be seen from key pieces of legislation that are going through the Scottish Parliament that the whole debate and structure have been heavily influenced by the lobbying industry. For example, substantial interventions are being made on minimum alcohol pricing and plain packaging for cigarettes, yet we know little about the scale of what those interventions involve.
We should not wait until something bad happens; rather, calling for reform is about saying that there should be transparency in democracy. It is essential that people understand how much money and effort goes into making you as politicians make decisions that certain vested interests want you to make.
I will answer the question, but I do not do so from a full understanding of Scotland’s political system. I am Canadian, so my understanding of lobbying regulation is more from an international comparative perspective.
Even if there has been no scandal, it is still important to have lobbying regulation, precisely because of what was said about the need to promote transparency and accountability. Political systems such as those in Canada and the United States have historically implemented lobbying laws as a consequence of scandal, but it is not necessarily the case that all countries have done that. Other laws are in place that prevent corruption—those should be seen as an additional side—but lobbying legislation is intended to promote transparency and to show who is talking to whom about what.
It would be wrong to legislate on lobbying. An awful lot of practices, codes, rules, procedures and statutes that Parliament has—rightly—considered and put in place over the past 15 years are germane to the discussion. Some of that work took place even before the Parliament was established, through the CSG. Were I a member of the committee, I would want to dust down an awful lot of the existing codes, regulations and statutes and think about how to ensure that the issue is embedded throughout the thinking and the practice of the institution as a whole and of individual members.
I am as passionate as I ever was—albeit that I am on the outside looking in rather than on the inside looking out—about ensuring that Holyrood is seen to be open, accessible and transparent and that the politics and politicians are seen to be trusted or work to build trust, confidence and respect. There are far better ways to do that, without a register of lobbyists. I am happy to elaborate beyond that if the committee wants me to, but that is my shortish answer.
Susan Deacon’s answer leads on to my next question. There is a lot of cynicism out there about politics and politicians. Do you think that the greater openness that we would get from a lobbying bill would increase people’s confidence in the political process?
No. The mistake of such thinking has often been made in the Scottish Parliament. I discuss with people across the political spectrum the fact that it is all too easy to say that, just because we can legislate, we should legislate, and just because we have the capability to put something on the statute book, we should do so. That is often not the right way forward. There are many examples in which a legislative route has been chosen and MSPs have subsequently started perhaps not to regret that they embarked on the journey but to see a lot of problems and pitfalls.
Questions were posed to the previous panel about the detail. The legislative process is about precision, detail and definition. Before putting anything on the statute book, we have to be sure that we can give it that precision, but we are in terrain where that cannot be done.
I will add a couple of comments about where I am coming from—I want to be totally transparent. Since I left the Parliament, I have spent part of my life working in the academic community and looking at the public policy process through another lens, while also sitting on a multiplicity of boards in the private sector and for a number of charities and having advisory roles in the public sector, so I see many dimensions of the issue. My passionate plea to members is to find more ways to allow all those different worlds to interconnect and to share mutual understanding.
I came into the room when George Adam asked about when a local business becomes a lobbyist and when its role as an employer or its business interest needs to be understood for other reasons, and that question is at the nub of things. We cannot keep on putting people and organisations in boxes, and I certainly do not think that we can say what the intent of their actions is. A court of law can struggle to identify intent. We can and should create multiple opportunities for views and opinions to be shared and have confidence in our elected politicians, trusting that they have the good sense to judge what view they will take, for which they will be held to account.
I will pick up on the trust issue. We held a commission and asked a lot of people from organisations that do not have lobbyists and do not have a lot of power, such as community groups and smaller charities, what their experience of getting access to influence was. The most common response was that they have a sense of a black box effect—they can see the inputs and where the process starts, and they can see the outputs and what happens, but they cannot link them, so it is as if there were a black box between the two.
A pertinent example is minimum pricing for alcohol. All the health experts, the police, the public sector medical experts and most of academia give solid evidence, which is the starting point. Then there is a long, drawn-out debate that might not result in anything. Democracy has a problem with the bit in the middle, where people do not quite understand the things that have influence.
There is a chance that, if we start to shine a light on it, we will discover that what happens is that corporate lobbyists fly in a hell of a lot of people with a hell of a lot of expensive research, the purpose of which is—how shall I say it?—to undermine the research that was given at the beginning. That is a long process with a lot of engagement and a lot of money spent.
I was a political lobbyist for 12 years and that is what I did. At the outcome of the process, people do not quite understand what is going on. Shining a light on that will not necessarily mean that everyone says, “Oh, we’ve got a brilliant political system and I’m absolutely delighted.” It might generate some cynicism, but that is part of the point. People might not feel confident about the reasons why decisions are made and the way in which they are made, but understanding why at least allows us to debate whether the process works and is the right way to do things.
The problem just now is that the lights are not on. The inputs go in, there is a big political process and the outcome pops out the other side. People do not recognise the outcome from what went in, and they feel cynical about that. They do not understand the processes by which decisions are made, because far too much is deliberately kept away from the public eye.
Let us keep our contributions quite tight. I will let Cara Hilton run with the subject and then bring other members in with supplementaries.
I think that Raj Chari wants to comment.
I cannot make a qualitative or quantitative judgment on whether Scottish people will feel closer to the political system with a lobbying register, but the international experience is that generally people do feel that, because such registers tend to be online systems that allow consumers to see who is talking to whom on which issues. In our interviews with interest groups, we find that they are big users of registers, because registers help them to understand lobbying strategies and create transparency in the system. Registers allow politicians to say openly, “You want to know with whom I have talked? It’s all on the register.” That increases people’s confidence in the political system.
Does the approach need to be reflected on? That relates to Susan Deacon’s points; I think that that is essential when developing a lobbying register. There are many international examples that Scotland can draw from, particularly in Canada, and we can talk about the details of legislation there, how the term “lobbyist” is defined and what constitutes an attempt to influence.
You do not need to reinvent the wheel here. It is not as if you are starting from ground zero. If there is political will from the committee and if the Government decides to pursue legislation, you can draw on a good bunch of evidence to draft a lobbying bill.
The “Code of Conduct for Members of the Scottish Parliament” places responsibilities on members in respect of their dealings with lobbyists. Some consultant lobbying firms have their own voluntary codes. Should the responsibility for registering lie with those being lobbied, lobbyists or both?
10:15
The responsibility should lie with lobbyists. The difficulty with making reporting the responsibility of people who are lobbied is that they are a broad community. I was a political lobbyist for 12 or 13 years when I was head of public affairs for Universities Scotland, which lobbies on behalf of universities. The bulk of our work was not really with MSPs. For most of our lobbying work, we would work directly with civil servants, agency people or Government advisers. If lobbyists, those who are lobbied and other people are all self-reporting in different places, it is difficult to get an overall picture.
We must ask who the people from any campaign to change legislation or opinions are talking to. Are they talking to a lot of quangos and the civil service? Is the campaign paying for a lot of academic work? The point is to get a coherent picture of not just what is being done in the Scottish Parliament but how much lobbying there is, so that those who are on the wrong side in a decision can at least look at the lobbying information and say, “Well, I faced £3 million-worth of academic research and four lobbyists.” People would be able to see what was happening for any case. It is important that the information is not just a background hum and that it allows people to dig down and say, “That was the lobbying that was done.”
Ms Hilton’s question is about who the object of regulation should be. Most legislation in the world has the lobbyist rather than the person who is lobbied as the object of regulation. That said, I think that MPs or Government ministers in Canada are encouraged to record with whom they have talked, although it is not essential that they do that. They would record it only if there was a spot check by the independent regulator to see whether a lobbyist had made contact with a public official. The object of regulation in that system is the lobbyist, not the parliamentarian or the minister.
The primary responsibility is on the elected member to be able to explain to the public—and, to be frank, to look at themselves in the mirror and know—the basis on which they reached a view and to be aware that the view has been shaped, influenced and formed by a multiplicity of sources and information. I hope that every elected member goes out of their way, as much as time permits, to seek out as many sources as possible in reaching a view and that they feel able to be held to account.
I am a living a bit dangerously here and, when I leave the room, I might regret having opened this issue up. However, Robin McAlpine talked about a black box, and I am happy to buy into the metaphor, but I fundamentally disagree with and do not recognise what he described as being in the black box. Of course lots of people do not understand how there have been all sorts of public, open and transparent processes around a bill or an issue yet somehow something else has come out at the other end. However, what is really in the black box?
On minimum pricing for alcohol, for example—I will say this because I spoke out about it at the time—a lot of party-political issues came into play, which are more often than not in the black box. Electoral imperatives are in the black box. Fear is in the black box. Individuals and organisations worry about how their views will be portrayed in the media if they speak out publicly. They are worried about falling out with the Government of the day. All sorts of quiet phone calls take place with Governments of all hues on the lines of saying, “It’s not very helpful if you say that.” People are worried about their futures in public appointments. All those things come into play. That is the stuff that is in the black box.
That is all true, but there are also a lot of expensive lobbyists in the black box.
All that I can say is that I do not recognise the world as you described it, Robin, and I have seen it from both sides. We will have to agree to disagree.
Can I just say, please address remarks—
I beg your pardon.
I am speaking to Mr McAlpine: address remarks to the convener, who may be imperfect but is doing his best.
I am sorry.
Richard Lyle wants to come in. I hope that he has a question.
I have a question. I do not see the point that Mr McAlpine is making. I was on the Health and Sport Committee—
Can we have a question, please?
There is a question. I was on that committee when we discussed alcohol pricing and plain packaging for cigarettes, but I never met any companies. We listened to witnesses like Mr McAlpine, then we came to a decision. If we had to worry about a black box, would that stop witnesses coming to committees to give their opinions?
No. People seem to think that lobbying is all about face-to-face contact, but that is not a big part of public affairs. The big part of public affairs is framing the debate.
I can see how much money has been spent on lobbying on minimum pricing for alcohol. Lobbyists bring people in, pull evidence in and create evidence. I am not saying that they manufacture evidence; they get academics to look at certain things and they create certain ideas, thoughts and opinions. The lobbyists do not have to be there all the time.
As I said, I lobbied for the universities for 13 years. If we wanted to make a case, we would influence politicians and parties not by coming and nagging you, sitting down with you for long periods and eventually wearing you down but by spending a lot of money and time on putting together strong evidence.
If I was coming here as a professional lobbyist to give evidence against a small community group that was campaigning on something, I would be horrified if I could not beat that group. I would have twice the group’s resources. I could have somebody do twice as much research to counteract any research that it had. The group would not have the same research or preparation capacity and it would not have the money to commission research and so on.
That all happens before anyone talks to a politician; it all happens in the background and is about framing the debate before a lobbyist talks to an MSP. The whole campaign is expensive, but the one-hour meeting with an MSP at the end of the process, which is about passing on the message, is not expensive. We are talking about being able to ask, “How much did you spend on the campaign?” and not, “Did you see five politicians or seven?”
I—
I am sorry, convener—will you let me back in briefly?
I will bring you back in.
I want to make a general point. It would be useful if the witnesses helped us to understand what actions we might take. We want to hear the analysis of the problem, but I encourage the witnesses to shift the balance a bit from analysis of the problem—which we are listening to with interest—to helping us to understand the actions that we might take.
It would be remiss of me not to comment. I am sorry, Mr McAlpine, but you must have a very low opinion of MSPs, who have their own opinions. In the 30 years that I have been a politician, nobody has changed my mind if I—
Richard, please ask a question.
I apologise, convener, but I had to say that to defend MSPs.
To what extent would a register address any problems or perceived problems with lobbying?
The point is about transparency. I repeat that it is about having the data to see the picture. If lobbying did not work, people would not spend so much money on it. There is no question but that lobbying works; it is one of the world’s biggest industries. The key is to let people have the data and to let them say, “That is what was spent on the campaign.” The point is to make the data public and be able to record it. That is about the public’s capacity to say, “These are the forces that came into play in the decision-making process.”
I do not think that people are stupid. I am not for a second saying that politicians do not generally make good decisions—they do. However, they are continually influenced throughout the process, and sometimes that influence makes decisions come out in a way that we might not have expected at the start of the process. It is important to be able to understand how that happened.
I am not decrying anyone and I recognise that lobbying is important. I am not criticising lobbying, which is an important part of democracy, and I am not criticising politicians for listening to lobbying, because that is also important. However, I am saying that everybody else should have an idea of the picture and some capacity to see what it looks like.
I will come to George Adam shortly. However, I have a question for Professor Raj Chari—I know that you are running to a tight timetable and I am anxious to get as much as we can from your presence here today. Can you respond to the little debate that has been taking place and lead us towards some of the things that we might do?
I will tell you what I think would be helpful for the committee if it is thinking about developing a law. Of course, there is the whole issue of political science 101 and what goes on in the black box. I do not intend to be critical but, as you have suggested, that is perhaps a different issue.
You need to take care of a couple of things. First, how do you define lobbying? Lobbying has one of the most contested definitions of any concept in political science. Two scholars will rarely agree on what is meant by the terms “lobbying” and “lobby group”. A generally accepted definition is that a lobby group is an individual or organisation with specific shared or vested interests that seeks to influence political decisions. It is important to make a distinction between influencing and seeking to influence. A lobbyist is not necessarily successful, but they seek to influence.
That addresses the earlier questions about MSPs’ constituents asking questions. A lobbyist is generally paid for his or her actions. There are different types of lobby groups and different registers throughout the world have classified them. Consultancies are regulated by the United Kingdom right now, but there are also in-house corporates, non-governmental organisations, charities, think tanks, professional associations and so on. The Canadian and United States experiences show that all those organisations register—it is not simply consultancies that register.
Secondly, what information is put in a register? That can be learnt from looking at the different bills that exist. In Canada, an “attempt to influence” means trying to communicate with what is referred to as a designated public office holder—a category that includes ministers and their staff, MPs in particular and high-level civil servants—on things such as the development of a legislative proposal by the Government or a bill that has been introduced by a single member; the introduction, passage or defeat of any bill; the making or amendment of any regulation; the development or amendment of any policy programme; and the awarding of any contract. There are very clear guidelines in existing legislation about what “attempt to influence” means.
When a lobbyist registers, they have to say what they want to try to influence, such as a bill, and the specific ministry that they want to influence. They have to give the name of their organisation and who works for it. In some cases, such as under American legislation, they have to disclose how much money they have spent.
When I read the submissions and comments, I noticed that the idea of a cooling-off or revolving door provision has not been touched on. Such a provision basically says that a parliamentarian or minister in a specific policy area cannot work as a lobbyist in that area for a certain amount of time. That should be a key part of any legislation that you might develop.
That is very helpful. I will read that with close interest in the Official Report.
Is it not all about balance, as Susan Deacon said? In some of the examples that we have used, such as minimum unit pricing of alcohol and smoking, there is a balance to be struck because multi-million pound organisations are paying lobbyists to feed in to the process and get a different answer from the health perspective that the Government is going to take. Is that balance not being struck? Is it not up to the individual MSP, as the representative, to make the decision? Is it not just about someone going through the decision-making process as the locally elected member for their area?
I get a hard time here because I always talk about what is good for Paisley, but I am here to talk about Paisley and that is an important part of my job. I believe that I am taking it seriously and, as Ms Deacon said, I will use all the information that I can to ensure that I come to what I believe is the correct decision for my constituents.
I go back to the point about definitions. When do we stretch to lobbyists and when does it become a bureaucratic nightmare? My wife texted me earlier, when the panels were changing. She keeps my diaries—in the interests of transparency, I should say that she does not get paid for it but is a volunteer. She said that she had just created another diary—tell her the rules and she will follow them. When does publishing that diary become helpful?
The onus of a registration system is on the lobbyist.
I am talking about whether MSPs should publish their diaries. I am asking whether we should just go through that process to keep everyone happy. My wife has just created a new electronic diary for me, but publishing it would not give anything back to the process.
That is a fair point, but most registration systems in the world do not require MPs to do that.
I will pick up on a couple of strands. I agree that it is right to have at centre stage of the discussion the whole practice and concept of balance as well as proportionality. I urge members to continue to do that.
I am always passionate about making international comparisons, but I am equally keen that we remember that we are Scotland—we are not England, Austria or Australia. We know ourselves pretty well, and we spent a lot of time crafting a narrative around the kind of politics and institutions that we wanted to have in Scotland. A lot of what I have read in the submissions talks about a different political system and culture from the ones that I know and recognise. We have to be extremely careful about carrying that across.
10:30Returning to some of the points that Robin McAlpine made, I think that the last way in which to build trust in politicians and the political process is to peddle what I regard as conspiracy theories about all these evil forces that exist and cause-and-effect relationships between what politicians do and the laws that they vote for. All of that is absolute nonsense.
When I was invited to come to the committee, I was asked to reflect on my experiences as an MSP and a minister. If I can have a minute or two, convener, it might be useful to share a couple of thoughts that I have in that regard.
Drugs companies have been mentioned a couple of times. It is important that we do not just do the good-guy, bad-guy thing, so I will reflect on some things that I got wrong in the past. When I was the Minister for Health and Community Care, I never met anyone in the pharmaceutical industry. I accepted the advice of my officials that it was not a good thing to do or to be seen to do, and that, because of the big commercial interests that were involved, it would not play very well so it was best to let enterprise ministers meet those guys. I think that that was wrong.
Some health ministers have held to that view but, as democracy has matured or practices have changed, health ministers have started to meet people from the pharmaceutical industry, as they should. We desperately need to work with the pharmaceutical industry to ensure that patients get the drugs and treatments that they need and deserve. We must ensure that the research and development can be supported and that the companies work alongside our universities and so on.
I got that decision wrong, but I think that it remains the default position in the Parliament. People still think, “Oh, these commercial interests are big, bad and dangerous and we’d better not be seen in the same room as them.”
Thinking about how we work together is the right thing to do. It is an insult to the intelligence of politicians to suggest that, just because information is submitted to them from big commercial organisations, either directly or through paid lobbyists, there will be a cause-and-effect relationship whereby they will roll over and go along with that view. It is much more demeaning for this institution when members stand up and speak in debates and the public can tell that they are not well informed and have not listened to a range of views, thought about how the industry works or whatever.
I would like to give one other example, briefly.
“Briefly” is a nice word.
It is one that you will relate to. It concerns the suggestion that it is all about money, and it relates to an issue that might seem a bit historical but that is still important and was certainly a big-ticket issue in my day: free personal care. I tell this story slightly against myself, but it is a matter of public record that the Parliament did not vote on that issue in the way that I, as minister, wanted it to.
In my recent past I have been teaching masters students in public policy, and I have taken that situation and worked it up into a case study about what really influenced the outcome of that policy decision. One of the things—by no means the only thing, but one of the most significant things—that influenced the decision was the position of the author of the report of the commission on the long-term care of the elderly, Sir Stewart Sutherland, who is now Lord Sutherland. At that point, he happened to be the principal of the University of Edinburgh, which is a stone’s throw from the Scottish Parliament, and he was—in the best possible sense—all over the Parliament, ministers and civil servants like a rash in the early days of devolution to promote that report and its recommendations. Did he have disproportionate access to politicians? Yes. Was there anything wrong with that? Absolutely not. Did any money change hands? No, it did not.
Rightly, there will always be situations in which people and organisations that represent their own views or those of other companies will find their way through the wide doors of this institution and make a case. As I said before, it is then for MSPs to make a decision. In the case that I mentioned, I lost. However, the point is that the argument was influenced by an individual, not a big financial interest, and there was nothing wrong with that.
I want to move the discussion forward. Richard Lyle has a question on the idea of having a register of lobbyists.
I take on board what Professor Deacon has said, and I agree with most of it.
If there were to be a register of lobbyists, what information should it include and why?
Perhaps Robin McAlpine can answer that question—he has been quiet for far too long.
You would want to know what the issue was and what subject an organisation had been lobbying on. You would want a broad outline of the general spend and the programme of four or five meetings—a general outline of what the organisation was trying to achieve, what it had put into trying to achieve it and the things that it had done to achieve it, in a fairly small way.
The word that I would use is “proportionality”. A small campaigning charity is in a completely different category. People who worked for such an organisation might have to fill out half a side of A4 once a year to say that it was a charity that campaigned on X, that it generally tried to influence policy in certain given areas and that, over the coming year, it would hold a series of meetings with politicians. They would state roughly what they thought the charity’s overall budget was, and they would send off that information. That would be proportionate for such a charity.
For an organisation that was conducting a big campaign and was trying to have some influence, the register would state the general budget for the campaign, the kind of people whom it was trying to influence and the things that it was trying to achieve—and no more than that—so that people could see that information.
Balance has been spoken about. That is great—let us get the data and see whether there is balance. Let us see whether both sides are spending the same and getting the same number of meetings. If you are telling me that there is balance, that is brilliant—there will be no problem in having a look at the information to see whether there is balance. It is simply a matter of being able to make judgments about whether there has been a reasonable, balanced debate in which both sides have had a reasonable chance. You want as much data as is necessary to give you that picture and no more. It is not about being punitive or making business difficult for people; it is about letting other people see that there is balance.
You mentioned spending. Do you think that the spending has to be equal, in relation to what you are saying about balance? Is it about finding out whether an organisation is a rich charity or lobbyist or a poor charity or lobbyist?
No. I keep coming back to this. I am saying that there should be the capacity to see—just that.
I refer to the collection of data about differences in pay rates between men and women. The data are collected so that people can see the scale of the problem, if there is a problem, and what it is like. Collecting data on differential pay scales for men and women, as was started in the 1960s and 1970s, does not itself fix the problem or provide a statement that the finalised outcome must be X or Y. It is about providing a minimum but decent amount of data to enable people to make up their own minds on issues in which there is a big public interest.
I have a lot of respect for elected politicians and think that you do a broadly good job, but that does not mean that, on every occasion, we have to take your word that there was definitely always balance. The public might say that it seemed that one side or the other had more power and influence than the other in a certain instance. It is about democracy and enabling other people to make judgments.
Okay—I think that we have got that point.
We tried to develop a typology of different regulatory environments. That relates directly to your question about what information an organisation should include when it registers. In low regulatory environments, a lobbyist generally has to submit very little information. In a medium environment, lobbyists give a bit more information about who they are and what aspect of the bill in question they want to influence—that relates to the ministry concerned and involves giving a bit more information than in a low environment. In high regulatory systems, organisations give all that information plus financial disclosures about how much they have spent.
There are systematic ways to collect that information, and it is not necessary to have a low, medium or high regulatory environment—it all depends on what information you feel that your citizens need to see. If you think that citizens want to see spending disclosures, follow a high regulatory model. If you think that only the names of who is lobbying whom on which bills and in relation to which ministries are required, you should follow that route.
The fact of their having been a public office holder—a minister, an MP or a high-level civil servant—is always an interesting piece of information for a lobbyist to disclose. A lot of the public cynicism towards politics has to do with the revolving door issue, so I would include that in registration information. There are different pieces of information to consider, depending on how tight you want the regulation to be.
We are about two thirds of the way through this evidence session, so we should step up the pace.
I was interested to hear Professor Chari’s definition of lobbying. The previous panel said that the devil would be in the detail. I would like to get a brief view from this panel on what you think the definition of lobbying is. As I say, Professor Chari has already given his definition. Also, how would such a register sit alongside the Parliament’s founding principles of accessibility, openness, accountability and the sharing of power? Will you give a brief insight into your views on that?
In all the political systems that we have studied, the registers are available online, which allows people to access information on who is lobbying who. In some cases, people have to do monthly updates. For example, in Canada, lobbyists have to say, “This month, I have met this minister and that high-level civil servant.” So the information is there and is accessible to people. Technology and the internet enable us to make the information accessible, which allows for transparency.
It is important to look at the consumers of the information. Transparency allows people to make informed choices at the next election. If they see that Minister X met with specific interest groups that they are not happy about or that the minister did not meet enough with other interest groups that they would have been happy about, they can take that information to the voting box and make an informed decision. In terms of accessibility, transparency, good governance and open knowledge, when it comes to making voting choices, such registration can help.
As the committee will have gathered, my starting point is that I do not think that a register or legislation is the right way to go. It would be a real displacement of energy and activity—and, frankly, taxpayers’ money—to spend a lot of time on that when there are a number of other things that you could do to address the fundamental issue, which is about confidence and trust in politics and good decision making.
Raj Chari touched on the point about people declaring past interests. If I live to be 1,000, I will still always be known as a former MSP and minister—you never get away from it. I have no problem at all with being open about that, but I like to think that people who have served in public office can bring quite a rich dimension to discussions on a lot of issues, because they have seen both sides and they understand the political process.
I come back to the point that Scotland is different. Our DNA is different, the way that our politics works is different and our rules are different. I have been concerned to see how much of the research that has been drawn on in a lot of the submissions and how many of the examples that are given are about Westminster. In Westminster, sitting MPs routinely have well-remunerated posts on company boards and the like. I disagree with that practice, but it is understood that it is part of the culture and there are relatively low levels of transparency around it. The Scottish Parliament is entirely different. I think that the high-level aim of the institution should be to continue to encourage as much cross-fertilisation of ideas as possible. To try to codify and commodify that is like trying to store water in a shoe box.
Forgive me, but I will come back to the point that George Adam made when I came in the door earlier, which obviously resonated with me. If an MSP goes to a reception in the garden lobby of the Scottish Parliament on science education or skills development, they might get talking to the human resources director of a chemicals company in their constituency. They could spend 15 or 20 minutes talking about the business and finding out about how it works. The director could tell the MSP about issues that concern them or about things that they think the Government or the council or whatever should be doing. Should that director be registered? Are they lobbying? How do they capture that? How do they know the rules? Does the MSP go back and put it in their diary that they had a meeting with someone from that company?
The Scottish Parliament was created precisely to create opportunities where such discussions could happen routinely and openly and be encouraged and developed. I think that we need much more of that. The idea of using time and energy instead to go down the road that some other countries and cultures have gone down of trying to capture and record all of that is a displacement activity and I think that it is the wrong use of time and energy.
10:45
A fairly light touch is the key. I would not be overly worried about too much definitional stuff. The approach that I would take would be to say to people, “If you believe you are a lobbyist, you should register.” If someone is caught clearly lobbying when they have not registered, we might think about sanctions. I would be happy if people just had to fill in a form and it went on a website—no more than that. To take the example that has just been given, people could say, “I attended a reception at the Scottish Parliament with the intention of talking about my business.”
One thing that bothers me is that there seems to be quite a lot of suggestion that a register would be a weight on you as MSPs. It would be no weight on you. The proposal is not about what you do. You are doing your job in meeting lobbyists and they are doing theirs in meeting you. You already live by a large number of rules and regulations. This is a high-standard Parliament. All that we are suggesting is that a little bit of that burden should go on the other side. It does not have to be expensive. I would not have an extensive compliance regime. It would be difficult to show that a lobbying firm had spent twice as much as it had said that it did.
In the early days, the aim will be to get the information out so that people can see the state of the picture. People do not understand how lobbying works or how much of it there is. To give that picture does not mean that we have to have policemen standing over MSPs’ shoulders the whole time making sure that they do not talk to somebody. It is about saying to those on the other side that, because they do it full time as a business or as a serious part of their business, they should tell us a little bit about what they do.
Most of my questions have been answered. However, I have a question for Professor Chari. I notice that, in British Columbia, people are saying that there should be a mandatory review of the Lobbyists Registration Act every five years. That is what we call a sunset clause. Should we have such a review of lobbying registration? Is it a good idea?
Yes. Once a registration system is set up, it is normal for different jurisdictions to amend it. Canada’s federal system is probably the best example. It came into force in 1989. Loopholes in the legislation were identified and, in 1995, amendments were made and further amendments were made in 2003 and 2008.
It is normal to have a review. Whether it is mandatory is up to the political system to decide. However, it is a good idea to have a review to find out how the registration system is functioning and whether aspects of it could work better or are not working well.
The advantage of a mandatory review is that it focuses people’s minds. After three or four years, they think, “Gosh, we’re going to have a review of this,” whether it is good or bad. Otherwise, it can slip away.
Yes, sure. The political systems that have enacted what I referred to as high and medium regulation generally have a review, even if the legislation does not stipulate that it is mandatory.
On the European transparency register, for example, the European Commission had a review of its 2008 initiative. The register is wanting in several dimensions—we can get into that if you want—but changes were made to it in 2011.
Looking at our remaining questions, I suspect that we have covered most of the topics. Are there any other questions?
I asked the other panel this question. The transparency that Professor Deacon goes on about concerns the fact that companies, charities and organisations such as Scotland for Marriage ask MSPs to lodge amendments to bills. Are they lobbyists? Would a register prevent MSPs from lodging such amendments or reduce the number of them? Sometimes, such amendments can help a bill or bring matters to debate. What is your view on that?
Lobbying is a really important part of democracy. Nobody is suggesting that anybody should be prevented from doing anything. I do not think that anyone even suggests that action should be taken that is likely to disincline somebody from doing something. All that we are saying is that there should be a proportionate capacity to know what was done.
For example, let us take large civic campaigns. The regime that I would like to encourage would be to ask someone who is about to engage in a campaign to fill in half a side or a side of A4 saying who they are and what they will be doing. It should be proportionate. I am talking about not a commercial lobbying company that does it every day all day for pay but one that comes in once or twice on a specific issue. It would be easy for it to say simply what it is doing in the way that, just now, campaigns are asked to say whether they are involved in the independence referendum. They simply have to say yes or no and roughly how much they are spending. We should have that as a way of ensuring that the systems are clear.
Nobody should be prevented or discouraged from lobbying—that is not the purpose of the proposal. It is only about being able to let people see the system and how it works. It is not about prohibiting. If it has anything to do with changing behaviour, that would come once we have seen the picture. I am not saying that anything has to change, because I promise you that I do not know the lobbying picture in Scotland. I can guarantee that you would not have been aware of 90 per cent of what I did as a lobbyist. You would have had no idea about how much I spent doing that, how many people I involved or whom I lobbied to lobby you. You would not know any of that stuff, and I certainly do not know what is being done in lobbying campaigns that I see now in the Scottish Parliament. I have no idea how much money or how many hours are being spent.
It is just about being able to say to people, “There you go.” Perhaps the data will come out and we will say, “That’s reassuring—everything’s fine.” That would be good. You would then routinely and simply keep the information there, and everything would be fine. However, perhaps people would say, “Wow, we didn’t know so much was being spent trying to influence decisions in this or that direction.”
You might then consider whether we perhaps need to support the other side to give a little bit of balance. Perhaps the other side simply does not have the resource that is needed to let it have an equal voice, for example. That is particularly the case when communities campaign against corporations on local issues, such as opencast mining. In such cases, the committee might decide that the data suggests that, although you have listened to both sides, one side has not had as much capacity to prepare, so perhaps you will give it an extra session. I do not know. The point is that you will know what you want to do only after seeing the data.
Right. I think that we have got that.
To respond directly to Mr Lyle’s point, it would be a crying shame if people started to worry about whether they are lobbyists and should register, and if that started to affect, skew and distort their ability and willingness to engage with the Parliament and parliamentarians in the parliamentary process. I use the word “people” in the broadest possible sense, to cover the local mums group, which I know was referred to previously—I am passionate about people listening well to local mums groups—and big corporations.
I will say something about the business world. I have spent a lot of my time, particularly since I left the Parliament and in my life in the academic world, trying to encourage and foster better connections between business, policy and academia. One reason why many businesses employ paid lobbyists—that is the phrase that is around—or public affairs companies, to give them their Sunday names, is that many of them do not have a lot of knowledge of how to relate to the political and public policy world or capacity to do so.
A lot of civic society is very confident and has a lot of capacity to engage with that world, not least because of the nature of the responsibilities of the devolved Scottish Parliament. Many organisations in civic society have become very skilled at that in a good way over the years. They know how to go to the Public Petitions Committee, for example, and how to get access to local MSPs. You would be surprised how many businesses, when an issue is around that affects their industry and they recognise that they need to throw into the mix their views and concerns, do not know how to do so, because they do not live in that world and perhaps do not have regular contact with it. Therefore, they hire somebody to do that. Sometimes, that is presented as an awful and illegitimate thing to do that contaminates the process, because money changes hands.
As is often the case, such things should not be seen in black and white. I used to like the phrase “shades of grey” a lot, although it has been hijacked a bit. However, we need to see such things in shades of grey. We are in terrain in which there are multiple shades of grey, so it would be wrong to attempt to take a black-and-white solution.
Some people—I cannot remember who—have asked on the record whether the proposal is a sledgehammer to crack a nut. However, that is not the right metaphor; instead, it is like taking a screwdriver to change a light bulb, because we are dealing with two different things. As I have said, if the Parliament’s aim and aspiration is to encourage openness and access and a free flow of information, and to build understanding, the last thing that we want is people worrying about how they are labelled and whether they have complied with the rules before they speak to politicians.
As we come to a conclusion, there are a couple of little things that we might briefly seek answers on. If there is to be a registration system, should there be thresholds below which registration is not required? Should some people or organisations be exempt from having to register?
We will start with Robin McAlpine. You should be brief, please, given the time. You can see the clock.
I would go for proportionality. Rather than have exemptions, I would say, “If you’re small and don’t lobby very often, just put a few sentences in a register, and if you’re big and do it more often, you do more of that.” It is more about proportionality than exemptions, with which you would have to draw arbitrary lines somewhere, so the process would become endlessly complicated.
The issue of time thresholds was visited in United States and Canadian legislation. Roughly speaking, the rule is that if someone spends less than 20 per cent of their time lobbying, they do not need to register. That is problematic, because who will verify it and how could it ever be falsified? With thresholds of time, such as 20 per cent, or thresholds of money, such as X amount of money being spent on lobbying, the difficulty is that even an independent regulator might not be able to verify those things. I would stay away from thresholds precisely because they can be considered to be loopholes that can assist people. If it was my legislation, I would definitely not consider thresholds.
It is also dangerous to grant exemptions. The narrow definition of lobbyists in the UK 2014 act exempts a variety of in-house corporate lobbyists and NGO consultants who are in effect lobbyists. That creates an uneven playing field and shows that some lobbyists are different from others. Some might have different public goods in mind, but lobbyists who seek to influence are lobbyists all the same, whether they work for corporates or for NGOs.
You are back to trying to take a tape measure to something that is not measurable.
Before we close, I would like 100 words—or none—from each of you on any subject that we have not covered. You do not need to restate what we have already heard, but if there were gaps in our questioning that you would like to draw to our attention, please do so.
What I will say is a restatement. Lobbying works—it is the spending of money by people to get outcomes that work for them. People who lobby get a return for it, which is why they spend hundreds of millions of pounds on it. Lobbying works, and democracy will be better if people can simply see it in operation.
There are two things that I would like the committee to spend its time, energy and resource on instead of unnecessary legislation and what would be a difficult legislative process, if you decide to go down that route. One is, as I said earlier, to look at the existing code of conduct and things such as legislation on members’ interests and to work hard to ensure that they are really embedded in the institution and in members’ practice. That would be real and practical and would genuinely contribute to trust and confidence.
Secondly, there is a need for more research in Scotland about how people view the political process. Far too many of the references that I have seen are to the Westminster system. This Parliament needs a better evidence base to know what the public really believe and what their experience and perceptions are of this institution, given that they have now had quite a bit of experience of it. It would be helpful for the public to have access to such research and it would inform this committee’s work now and in the future.
The international experience shows that, increasingly, countries and political systems are adopting lobbying regulations. Four did so in the 1900s, and the number has tripled today. If there is a will to pursue legislation and it is deemed necessary, it would be consistent with what many political systems in the world are doing. The final word is that it is easy to draw policy lessons from those political systems and to use their legislation and experiences when you draft your bill.
I thank the panel members very much for their contribution, which was lively, interesting, engaging and diverse, and probably quite useful. I am sure that you will inform our future consideration of the subject.
10:58 Meeting suspended.