The short answer to the question is yes, the Act possibly does apply.
On 12 March 2018, the Lobbying (Scotland) Act 2016 came into force. The Act requires anyone who carries out regulated lobbying of MSPs and other public officials to record this on the public Lobbying Register.
Regulated lobbying requires:
- a person to have communicated orally and face-to-face (including by videoconference);
- with a MSP, member of the Scottish Government (cabinet secretaries and Scottish law officers), junior Scottish minister, Scottish Government special advisers or the Scottish Government's Permanent Secretary;
- about Scottish Government or parliamentary functions;
- which informs or influences, or is intended to inform or influence, decisions made by the Scottish Government or Scottish Parliament;
- on behalf of that person's organisation (or those that it represents).
The Act provides for certain types of communication to be exempt from regulated lobbying. This includes communications made by any public authority within the meaning of the Freedom of Information (Scotland) Act 2002 (“FOISA”). Housing associations in Scotland are not currently subject to FOISA. However, the Scottish Government has recently confirmed its intention to designate housing associations as Scottish public authorities under FOISA and has consulted on a draft order to implement this. Once housing associations are subject to FOISA, they will be exempt from regulated lobbying.
In the meantime, housing associations could potentially take advantage of some of the other exemptions available under the Act, such as communications made by:
- persons on behalf of a locally-based organisation to their local MSP (regardless of whether it relates to local issues) – the Act is not clear on whether this could apply to large housing associations which operate across multiple regions in Scotland, but will likely depend on the strength of their local presence;
- persons representing an organisation which at the time has fewer than 10 full-time equivalent employees – such as small community-based housing associations; or
- persons not paid by the organisation for which they lobbied (or those that it represents) – which means that unpaid board members do not need to register any lobbying carried out on behalf of their housing association.