In a legal update earlier this year, we discussed that on 11 November 2019, the Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 (the “2019 Order”) comes into force. The 2019 Order extends the definition of a “Scottish public authority” to include Registered Social Landlords (“RSLs”) and as a result, freedom of information requirements is now applicable to RSLs from 11 November 2019. This change had been anticipated for a long time, having initially been debated in 2002. It is important that RSLs are aware of how the 2019 Order affects their position not only in relation to the Freedom of Information (Scotland) Act 2002 (“FOISA”) but also in relation to the Lobbying (Scotland) Act 2016 (the “2016 Act”).
Lobbying (Scotland) Act 2016
The 2016 Act sets out the concept of ‘regulated lobbying’, where reporting requirements will apply to bodies undertaking certain ‘lobbying’ activities. The Schedule to the 2016 act contains a list of bodies that are exempt from those requirements, which includes “Scottish public authorities”.
As RSLs are now included within the definition of “Scottish public authority”, they are exempt from the obligations relating to reporting lobbying activity under the 2016 Act from 11 November 2019.
So what happens next?
From 11 November 2019, if you are an RSL or a connected body, you will be subject to the provisions of FOISA in relation to providing access to information regarding housing services. The lobbying reporting obligations under the 2016 Act will also no longer apply. It is important to be clear on this point, given the sanctions under the 2016 Act for failing to comply with lobbying reporting. Such sanctions include fines of up to £1,000 for failing to provide information in relation to regulated lobbying or providing inaccurate information returns, with higher fines for failing to comply with an investigation in relation to lobbying.
If you are an RSL or a connected body and you are registered on the lobbying register, you can have your status on the lobbying register reclassified to show that you are an inactive registrant. To do so, an application can be made to the Clerk of the Scottish Parliament under s12 of the 2016 Act.
In response to the requirements under FOISA, read our blog Remember, Remember 11 November where we provide some practical information for RSL’s.
If you would like to know more about the Lobbying (Scotland) Act 2016, our guide to the reporting requirements in effect provides some useful information.
If you want to find out more about this subject, or require further information on social landlords’ obligations please contact Fiona McLeod, in Brodies’ Government, Regulation and Competition litigation team.
On November 12, 2019