Scottish Parliament's rules on political lobbying are dangerously inadequate – Martyn McLaughlin

Whether you like it or not, lobbying is part of the political game.

Indeed, its proponents would argue that it is an essential component of a functioning democracy, helping to widen participation in decision-making and ensure interested parties have their voices heard in the corridors of power.

But there are ample examples of why it has become such a dirty word, the overwhelming majority of which are to be found at Westminster, where a succession of scandals has engulfed various administrations. It is embedded in its culture, and the rot of paid-for-politics has infected many of its public institutions.

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In Scotland our maturing devolved legislature has not suffered the same harm. The so-called ‘lobbygate’ stooshie at the tail end of the millennium raised searching questions about the new, open style of politics being promised in Edinburgh. The crises since have been few and fleeting.

But the absence of scandal should not invite complacency. Three years have passed since the Lobbying (Scotland) Act 2016 came fully into force, and its central achievement – the creation of a regularly updated public register of regulated lobbying activity – has been a welcome development. Unfortunately, it sheds only a dim light.

Thanks to fine work by journalists Karin Goodwin and Joshua Martin, the limitations of the register have been laid bare. In their stories for The Ferret and The Herald, they have identified hundreds of meetings held last year by Scottish ministers with wealthy individuals, multinational firms, and other organisations, none of which were declared.

The reason for that is simple. The legislation in question has more loopholes than a crocheted blanket, and seems designed for a pre-digital age.

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Scotland is lagging behind other countries when it comes to transparency over lobbying (Picture: Oli Scarff/AFP/Getty Images)

At the time the Scottish Government set out its proposals for a lobbying register, Joe Fitzpatrick, the then minister for parliamentary business, said it would ensure that future lobbying would be “as open and transparent as possible”.

It was, and remains, a disingenuous assessment of the register’s efficacy. The reality is that the legislation which followed the government’s consultations had too many caveats to allow the register to be truly beneficial, and the system that has been in place ever since has only afforded a false sense of transparency.

The law is focused to an absurd degree on “face-to-face oral communication”. It does not cover telephone calls, letters, emails, or messages sent via social media apps such as Facebook, Twitter, and WhatsApp.

Any communications instigated by organisations with less than ten members of full-time staff, or those unpaid for their work, do not apply. Similarly, meetings where MSPs or ministers request “factual information or views on a topic” are among 13 individual exemptions.

Most absurdly of all, while videoconferencing software such as Zoom falls under the legislation, the requirement to declare details of the calls can be circumvented by both parties turning off their cameras, and using only audio.

Anyone with even a cursory knowledge of how legislation is formed and policy is shaped will know that these provisions are woefully inadequate. For those outside interests with deep pockets, their communication with MSPs and ministers is often indirect.

The lobbying register may throw up the occasional swanky dinner with an elected representative, or a meeting at Holyrood, but such events are the exception, as opposed to the rule.

Invariably, they are precursors to altogether more detailed and regular communication with an MSP’s staff, or a senior official in a government directorate. Both sides know how to play the game, and the reason they are allowed to do so is because hardly anyone questions the rules.

This lack of transparency has been particularly problematic throughout the pandemic, during which time ministers and MSPs have, like the rest of us, done a good deal of their work remotely. It is common knowledge that huge sums of public money have gone to private firms, and the need to respond swiftly to the crisis is understandable.

But a requirement for haste should not come at the expense of public scrutiny. As Ms Goodwin and Mr Martin have pointed out, save for cursory mentions in diaries of ministerial engagements, there is scant detail about these discussions.

There is no evidence of wrongdoing here, though that is not the point. The key issue is ensuring that public trust in decision making is robust, and without details of lobbying activity being made available, that cannot be guaranteed.

One reason for the lack of scrutiny of this is Scotland is a small country where certain tensions have to be expected. One of the most prominent professional lobbyists named in The Herald’s coverage is a columnist for the same newspaper. This is not an irreconcilable conflict, though it is an odd little irony.

Similarly, some former MSPs with good media contacts have found lucrative second acts in public affairs, helping major firms such as Amazon navigate the world of Scottish politics. This in itself is not problematic, but being unable to gauge the extent of their lobbying undoubtedly is.

Scotland is out of step with other democracies when it comes to lobbying transparency. A truly effective register would widen the terms of disclosure to include email, telephone calls, and other forms of digital communication. It would also include any meetings held not just by government special advisers, but senior civil servants, and detail, at the very least, banded amounts of the expenditure on lobbying.

Will that reform arrive? I doubt it. There seems little appetite among most SNP MSPs for anything resembling substantive change to the legislation, and the Scottish government has time and again said it is for the parliament to decide on whether the existing arrangements should be reviewed.

Some might argue that any further change would be a solution to a problem that does not exist. I would suggest that even a perceived lack of transparency is a dangerous thing.

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