Contents
- Attendance
- Subordinate Legislation
- Early Years
Subordinate Legislation
Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 [Draft]
Good morning. I welcome everyone to the seventh meeting of the Education and Skills Committee in 2016 in the fifth session of Parliament. I remind everyone present to turn their mobile phones and other devices to silent for the duration of the meeting.
The first item of business is to take evidence on the draft Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016. I welcome to the meeting Joe FitzPatrick, the Minister for Parliamentary Business, and Government officials Andrew Gunn, who is a freedom of information policy officer, and Emily Williams, who is a solicitor. Good morning.
I invite the minister to make a short opening statement of around five minutes.
Thank you, convener. I am very pleased to have the opportunity to say a few words in support of the regulations.
The proposed time-for-compliance regulations are a pragmatic response to issues that were raised in last year’s consultation on extending coverage of the Freedom of Information (Scotland) Act 2002. During the consultation process, the grant-aided and independent special schools that were proposed for inclusion within the scope of the 2002 act highlighted the practical difficulties that they would experience because of school holidays in responding to requests within the standard 20-working-day period. The act allows for variation in response timescales in particular circumstances, and I am sympathetic to the position of those schools that are now required to comply with FOI obligations. Unlike local authority schools, grant-aided and independent special schools are, for the purposes of freedom of information, public authorities in their own right. Such schools are generally closed during holiday periods and have a limited number of administrative staff, who usually work only in term time, which clearly creates practical difficulties for them in responding to FOI requests during holiday periods.
There is precedent for such proposals in other legislation—for example, the Pupils’ Educational Records (Scotland) Regulations 2003 (SSI 2003/581), which require the release of information within timescales that are calculated according to school days rather than working days. I welcome the broad support for the proposals, including from Capability Scotland, the Royal Blind School, Kibble Education and Care Centre, and the Scottish Information Commissioner. In particular, I note the commissioner’s observation that the regulations are, in practice, a backstop for the schools that are affected.
However, I also note the concerns that were expressed in some responses, including the Campaign for Freedom of Information in Scotland’s concern that the proposed regulations would create a two-tier system. The campaign emphasised the need for a process of qualification and independent verification for agreeing when schools are recognised as being closed and suggested that such a process could be overseen by the Scottish Information Commissioner. In effect, that is what will happen. I hope that that allays the concerns of that campaign and others. The independent Scottish Information Commissioner oversees and enforces Scotland’s freedom of information laws.
In addition, in consultation with the commissioner, I propose to revise the section 60 code of practice to emphasise the statutory duty to respond to requests promptly, and to stress that, if staff with the appropriate skills, knowledge and authority are available, it would be good practice to respond to any request, even if the regulations apply.
The proposed regulations, in tandem with revisions to strengthen the code of practice, are sensible and take into account the specific circumstances of the schools that are now subject to freedom of information law.
As with the order that extended coverage to which the regulations relate, it is our intention to review their impact later this year. The review will help to inform our on-going aim of keeping Scotland’s freedom of information legislation effective and fit for purpose.
I hope that the committee will support the motion.
Will you clarify whether the problem has come about because there has been a substantial increase in the number of FOI requests to those types of school?
No, that is not the issue. Last year, we introduced orders to extend the FOI legislation to include the independent special and grant-aided schools, which came into effect in September this year. Prior to those changes, those schools were not covered. This is a pragmatic exercise that, in extending coverage to include the schools, deals with the specific difficulties in their complying with the 20-day deadline during school holidays.
You mentioned the possibility of a two-tier system. Do you foresee a challenge based on that?
No. The regulations deal with specific circumstances for specific institutions. They are generally very small institutions that in the main close down during school holidays. As I said, there is already a definition of what a school day is. I cannot think of any other organisation that is in the same position as those schools. Freedom of information legislation covers a host of organisations, but I cannot see any other organisation that we cover that would need the same exemption. The point that we are having to address is very specific.
From other schools’ perspective, obviously they close down during holidays, too. That is the area on which I had a slight concern about the possibility of a legal challenge, because it might be seen as being the case that there are different rules for different schools, but you are happy with the situation.
The big difference between the schools to which the regulations will apply and local authority schools is that the latter are not the responsible body; for those schools, the local authority is the responsible body. However, the schools to which the regulations will apply will be the responsible body—for example, the Royal Blind School will be the responsible body—but if no one is at the school, responding to an FOI request would be particularly difficult.
You say that the instrument is a “pragmatic response” to a problem, but you have confirmed that we do not know whether a problem exists.
The matter came up in consultation. The schools that we were proposing to extend coverage to asked how they could respond to a request in 20 working days when they would be closed for school holidays. I must make the point again that the schools are different from local authority schools. They are generally very small institutions, and are closed during school holidays.
We have a code of practice. I hope that you have all received copies of the redraft, which I thought might be helpful to you. It makes it clear that, if people are in the school, a request should be responded to within 20 working days. Indeed, the regulations do not remove the requirement for all public authorities to respond promptly.
I note that the Children and Young People’s Commissioner for Scotland is opposed to the proposal.
The commissioner made some comments that I hope we have taken on board in the code. The issue is about extension of coverage to specific schools. Prior to that legislative change, the schools were not covered; they have been covered only since September.
There is a difficulty here. First, you are identifying a solution to an issue when there is no evidence that there would be a major problem for schools. The schools have simply said that they think the issue might be a problem. Equally, if you say that it is a problem for schools because schools close during the summer, the logic of that position is that that would apply to all freedom of information requests in schools. That is because although the local authority is working and functioning, the evidence that it would need to get for an FOI request on what has happened would have to come from a school that might not be in a position to provide that information.
Did you consider the alternative option of saying that an FOI request to a school should be responded to within 20 days, but that you would allow the Scottish Information Commissioner to consider why a particular school could not comply within the 20 days and to recognise that the fact that the school was closed over the summer was the problem? That might have addressed the problem that people perceive that the proposed regulations represent a dilution of the Freedom of Information (Scotland) Act 2002 for a very specific group. If there is a big problem, is it not the case that it should be recognised for schools across the board, rather than specifically for those in the independent sector?
I go back to the point that there is a major difference in respect of the responsible body for the two different types of school. The responsible body for local authority schools is the local authority. All local authorities have FOI units that manage their casework. The period of 20 working days still stands, but the concept of a school day is already understood in law—the terminology is laid out in legislation. The 20-day period still applies, but if a school is not open, there is a challenge. The code of practice makes it clear that if, over the holiday period, there are staff in the affected schools who are capable of answering an FOI request, the regulations should not apply. It would be for the Scottish Information Commissioner to police that.
You say that some of those schools might be open and might have somebody who could respond to such a request. Some of them will have a board, whose members would be able to access the information that was sought. Would it not have been more logical to start the other way round and to ask how, given the nature of the schools in question, flexible procedures could be produced, rather than shifting immediately to a “pragmatic” solution that exempts one part of the education system, but which does not recognise the same challenges elsewhere?
No one is being exempted. If a school is open, that will count as a working day and the exemption will not apply.
We have come up with a proposal that takes account of the facts. It is not just a case of addressing a perceived problem. If a school was closed for 40 days—the average period is around 30 days in the summer—it would be very difficult for it to respond within 20 days. The chances are that the FOI letter would not even be seen in that period.
The issue came up in the consultation on the proposal to extend the FOI provisions. We are talking about extension of FOI legislation to cover schools that were not previously covered. When we introduced the subordinate legislation to do that, I thought that it was correct that parents and other interested parties now had the right to the same FOI that is afforded to people in relation to local authority schools and other bodies. As a responsible Government, we wanted to consult about how the proposal should be progressed. I was pleased that organisations such as Capability Scotland and the Royal Blind School said that the proposed regulations address a problem that they had identified.
In addition, we have said that we will look at the legislation a year from now to assess whether it is working as we expect. Our experience of the extension of the FOI provisions in other areas is that it has not ended up being as onerous as people had been concerned it would be. For example, when we extended FOI to cover leisure trusts, there was concern that that would be a real challenge for those organisations but, in practice, following partnership working with the Scottish Information Commissioner to make sure that those organisations had the necessary skills and were prepared for the change, the extension was not as onerous as had been anticipated. It should be remembered that the proposals are to do with the extension of FOI coverage.
You have rightly made much of the local authority being the responsible body, but the Government proposes to change the law in respect of education to make schools the responsible bodies. Will that change have any implications?
I must deal with existing arrangements. I do not foresee implications to do with changing the responsible body.
It is your Government that has proposed the change. Will there be some assessment of that when the law changes?
10:00
One of the things that I hope colleagues will have seen is that, during the past few years, we have been working hard to make sure that our freedom of information laws keep up to date. It is absolutely appropriate that we do that. My starting point is about how we can ensure that people who require information can access that information in an easy and understandable way.
Perhaps I can put the question the other way around. Could the committee have the assurance that, if that law change takes place, the freedom of information implications for schools will be considered carefully when the committee is considering the legislation next year?
Clearly, we would need to look at how a change to the responsible body would impact on people’s rights. That is something that the Scottish Information Commissioner has also raised.
Thank you, minister. If there are any changes resulting from the review after a year, will you make sure that the committee is fully informed of them?
Yes. It is reasonable to keep the committee informed of the outcome of our review.
Okay. We move on to the formal debate on motion S5M-01751, in the name of the minister. I remind everyone that officials are not permitted to contribute to formal debates and I ask the minister to move the motion.
Motion moved,
That the Education and Skills Committee recommends that the Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 [draft] be approved.—[Joe FitzPatrick.]
Motion agreed to.
The committee must report to Parliament on the regulations. Are members content for me, as convener, to sign off a report?
Members indicated agreement.
Children’s Services Planning (Specified Date) (Scotland) Order 2016 (SSI 2016/255)
Education (Student Loans) (Scotland) Amendment Regulations 2016 (SSI 2016/261)
The next item is to consider two negative instruments, as noted on the agenda. The instruments will come into force unless Parliament agrees to a motion to annul them. No motion to annul has been lodged. Do members have any comments?
On the Education (Student Loans) (Scotland) Amendment Regulations 2016, I just want to note that there was significant correspondence from the Delegated Powers and Law Reform Committee, which seems to be concerned about whether the regulations can address the problem. I do not know whether we would want to do something about that now, but the DPLR committee did write to us in some detail about its concerns and I wondered whether any advice had been taken about the implications of what it says about there being no new equality impact assessment and that raising the age to 60 will not address the problem of the age cap of 55 being discriminatory.
I believe that 60 is the standard age across the United Kingdom. We can consider the regulations again at our meeting on 26 October if anybody feels that it is necessary to do so. Would you like us to write to the Scottish Government so that we can consider its response at that meeting?
I think that would be useful. I am interested in the fact that the other committee took so much time to correspond with us about something it clearly thinks is quite serious and I wonder whether it might be useful for the record to get a response on what the DPLR committee said.
Convener, I have no problem with it, but the Delegated Powers and Law Reform Committee letter does say that the committee has “outstanding concerns” about the basis for the Scottish Government’s decision. It might therefore be worth probing a little bit further.
We will write to the Scottish Government and ask for its view.
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