I thank Neil Findlay for lodging amendment 28, the intention of which is to introduce a more serious penalty for second or subsequent offences under section 42 of up to the statutory maximum of £10,000, and for that person then to be potentially prevented from lobbying for three years. The amendment also seeks to impose an administrative sanction for an offence committed under section 42 in circumstances in which a person has been carrying out lobbying activity for six months or less. That would create a criminal offence with no criminal penalty. The clerk would simply give the offending person notice advising them about the duty to register.
I fully appreciate the spirit in which amendment 28 seeks to offer registrants some latitude in respect of initial failures to comply with the registration scheme, at least for a time, until they fully understand the operation and requirements of the act. However, there is a fundamental issue with the amendment in that the outcomes would lack clarity. For example, in relation to the sanction preventing a person from lobbying for three years, it is not clear what lobbying someone would be prevented from undertaking. I think that Neil Findlay intends to relate it to regulated lobbying, as it is defined in the bill, but that would not necessarily be the effect of the amendment. It is also unclear how the sanction would be enforced.
More generally, I have concerns about whether the proposed interference with someone’s ability to work is a proportionate response. In addition, it is not clear when the six-month period for determining whether a person is given notice from the clerk or is liable to a fine would apply. I presume that it would from the time of committing the offence, but again that would not necessarily be the effect of amendment 28.
Issues also arise with the clerk having to give notice to a person when that person “commits an offence”. Under section 17, the clerk will already be able to require information from an active or voluntary registrant when the clerk has reason to believe that a person has failed to provide it. However, and more importantly, it must be left to the courts to determine whether an offence has been committed and, when an offence has been committed, to impose an appropriate criminal sanction.
My concerns are not just about the mechanisms of amendment 28. More fundamentally, the Government considers that the existing statutory framework that is set out in the bill provides a proportionate approach to offences. The awareness-raising that will be conducted by the Parliament in the run-up to the register becoming operational, alongside the guidance that is to be published by the Parliament, will ensure that registrants are aware of what is required of them.
Section 16 outlines the clerk’s duty to monitor compliance and section 17 describes the power that the clerk has to issue information notices requiring a person to supply information. In addition, section 22 provides for the duty of the Commissioner for Ethical Standards in Public Life in Scotland to investigate and report on complaints that are received when a person has failed to comply with the requirements of the act. The provision of guidance and the role of the clerk and commissioner, backed by the possibility of criminal sanctions, is fair to registrants and sufficient to ensure the robustness of the registration regime.
I ask Neil Findlay to seek to withdraw amendment 28 but, if he does not do so, I ask the committee to resist it.