Public Audit Committee
Session 5 Post-legislative scrutiny of Freedom of Information (Scotland) Act 2002 and Lobbying (Scotland) Act 2016
Letter to the Convener of the Standards, Procedures and Public Appointments Committee from the Convener, 10 September 2021
Dear Martin,
Post-legislative scrutiny of—
• Freedom of Information (Scotland) Act 2002 and;
• Lobbying (Scotland) Act 2016.
As you may be aware, the remit of the Session 5 Public Audit and Post-Legislative Scrutiny (PAPLS) Committee included a role to consider and report on post-legislative scrutiny. The remit of the Session 6 Public Audit Committee, however, does not include post-legislative scrutiny.
As such, the Public Audit Committee agreed to write the Standards, Procedures and Public Appointments Committee to highlight post-legislative work conducted by the PAPLS Committee relevant to your Committee’s remit.
Freedom of Information (Scotland) Act 2002
In January 2019, the PAPLS Committee agreed to undertake post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (FOISA). In May 2020, the PAPLS Committee published its report, which concluded that FOISA had improved the transparency and accountability of public bodies. It also highlighted however, that more needed to be done to keep pace with the changing nature of public service delivery, new forms of communication and the way in which the public accesses information.
To address these challenges, the Committee recommended that the legislation needed to be updated to reflect these developments as follows—
• Introduce a ‘factors’ approach based on functional tests – eg quantifying
the degree of public interest in the function/considering the cost to the
public purse.
• Introduce a ‘gateway clause’ which would automatically bring those
elements of organisations fulfilling certain criteria within the scope of
FOISA.
• Introduce a statutory code to publish information.
• Require certain key information, such as minutes of ministerial meetings,
to be recorded.
• Prevent reliance on confidentiality clauses between public authorities and contractors.
In February 2021, the Minister for Parliamentary Business and Veteran’s responded to the Committee’s report, stating that—
“…the Scottish Government is of the view that there should be a public consultation exercise early in the next Parliament to seek views on legislative change, following the Committee’s report”.
The Minister also confirmed that the work of the PAPLS Committee would “inform future discussion” and added that “a future public consultation will provide an opportunity to seek views from a wider set of stakeholders on all the Committee’s recommendations, insofar as these relate to legislative change.”
All of the work of the PAPLS Committee on this issue can be found on its webpage.
Lobbying (Scotland) Act 2016
I also wish to draw your attention to the PAPLS Committee’s post-legislative scrutiny on the Lobbying (Scotland) Act 2016 during 2020/21.
In its report, published in March 2021, the Committee recommended that the Scottish Government must commission a full and independent impact assessment of the Lobbying (Scotland) Act 2016 to establish whether the Act has delivered its transparency and public accountability objectives.
The report makes several recommendations for legislative change and recommends that the Scottish Government should initially consult on these changes and then bring forward the necessary legislation, including;
• Clarity around the extent to which communications using video-conferencing constitute regulated lobbying, particularly given its increased use as a result of the pandemic.
• Shorten the reporting timetable from six monthly to a quarterly basis, in line with international best practise.
• Clarity around the meaning of certain exemptions for example; communications made on request for factual information; those made by small organisations; or to a constituency or regional MSP; or communications which are not made in return for payment.
As the report was published just before the campaign recess, no formal response to the Committee’s report was received from the Scottish Government. You may wish to note however that in response to the Committee’s consultation on its draft report1, the Minister for Parliamentary Business and Veterans stated that—
“…the Government recognises that some small changes could reasonably be made
to improve the working of the Act”.
The Minister was also supportive of the Committee’s draft recommendation to introduce practical improvements to the Lobbying Register as a route to reducing the administrative burden on organisations.
As regards the recommendation for a full and independent impact assessment of the Lobbying (Scotland) Act, the Minister confirmed it would be “more appropriate for the Parliament itself to commission that impact assessment in order to inform Parliament’s consideration of whether or not legislative change is required”.
He went on to state that “should it be concluded that further legislation is required, this would seem to be most appropriately delivered by a Committee Bill rather than through a Bill sponsored by Government”.
All of the work of the PAPLS Committee on this issue can be found on its webpage
Section 50 of the Lobbying Act requires the Committee to publish its draft report; consult with such persons as it considers appropriate on the raft report and have regard to any representations made to it in finalising its report.
Conclusion
The Public Audit Committee asks that your Committee strongly considers following up on the recommendations made by the PAPLS Committee, as abovementioned, should there be scope in your work programme to do so.
Yours sincerely,
Richard Leonard MSP
Convener