The “Uber files” is a series of leaked documents disclosing allegedly unlawful lobbying by the taxi firm’s management in pursuit of global growth. It is reported that Uber, being aware that its business model did not comply with existing taxi regulations in many countries, exerted pressure on politicians with the power to influence the very regulations Uber found problematic.
The lobbying is reported to have happened throughout the world, including in the UK when Uber was facing barriers to operating in London. For example, it is reported that between 2014 and 2016 Uber held undeclared meetings with UK politicians including George Osborne, Priti Patel, Sajid Javid, Matt Hancock, Ed Vaizey and Michael Gove. The leaked documents are said to indicate that the ultimate target of the lobbying activity was then London Mayor, Boris Johnson, who had refused to meet with Uber. In 2016, the proposals in Transport for London’s Private Hire Regulations Review that would have been most damaging to Uber were dropped, for example a minimum five-minute wait between booking a ride and pick-up.
It is an accepted part of democratic society that our politicians should meet with their constituents and those with whom their constituents’ have interests, including representatives of business, industry and commerce. The vast majority of such meetings are likely to be entirely legitimate and lawful. However, to ensure such legitimacy and lawfulness it is essential that representatives of government and those with whom they meet are aware of the relevant lobbying rules.
Scottish lobbying rules
There is currently no suggestion of improper conduct relating to Uber’s operations in Scotland; but if there was any such lobbying, it would likely pre-date the current rules on transparency of regulated lobbying. Since March 2018, all organisations that carry out lobbying in Scotland are required to register their lobbying activities, so details of Uber’s lobbying activities in Scotland since then should be recorded and available for inspection in the Scottish Parliament’s Lobbying Register.
The Lobbying Register was introduced when the Lobbying (Scotland) Act 2016 came into force. The 2016 Act requires all “regulated lobbying” to be recorded by the organisation who undertook the lobbying activity. “Regulated lobbying” is essentially any occasion when organisations have face-to-face contact with MSPs, Members of the Scottish Government, junior Scottish Ministers, special advisers or the Permanent Secretary of the Scottish Government during which they have an opportunity to inform or influence decisions made by the Scottish Government or Scottish Parliament. The onus is on the organisation to complete a return in the Lobbying Register and to consider, on a six-monthly basis, whether to submit any Information Returns or a nil return.
The equivalent UK legislation, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 came into force o n 1 April 2015 but it only imposes a statutory duty upon those who carry out consultant lobbying on a professional basis. Registration on the UK Lobbying Register is voluntary for individual lobbyists or lobbying organisations. At the time of writing, Uber does not appear to be registered.
Examples of regulated lobbying
Scottish Parliamentary Guidance explains which types of conversations, and with whom, must be registered and there is a helpful flowchart available to assist organisations in determining whether they need to register a communication as lobbying on the Lobbying Register. Letters, emails and telephone calls are specifically excluded from the rules.
It is clear that the formality or otherwise of the situation is not a key factor in whether a communication constitutes regulated lobbying. For example, if a person bumped into an MSP in the street and a casual conversation turned to work-related issues, this could potentially be regulated lobbying depending on the content of the conversation which took place.
Another situation that could constitute regulated lobbying is where a person is making a speech at an event attended by an MSP or Scottish Government Minister and targets part of their speech towards that person in order to inform or influence decisions about Scottish Government or Scottish Parliamentary functions on behalf of their organisation.
The Commissioner for Ethical Standards in Public Life in Scotland is responsible for investigating and reporting on claims of alleged breaches of the 2016 Act. Failing to provide accurate information on the Lobbying Register could result in the organisation being fined up to £1000.
The Uber disclosures demonstrate why businesses should not have unfettered access to law makers and highlight a gap in the UK lobbying rules for organisations engaged in direct lobbying. Scotland’s lobbying laws require organisations to publicly disclose instances of lobbying through the statutory Lobbying Register.
If you require assistance in preparing an organisational policy on regulated lobbying, or are looking for guidance or training for your staff on regulated lobbying, please get in touch.
More information on the Lobbying (Scotland) Act 2018 is also available in our Lobbying (Scotland) Act 2018 explainer article.
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