Pre-release Access to Official Statistics (Scotland) Order 2008 (Draft)
Good afternoon, and welcome to the 25th meeting in 2008 of the Finance Committee. I ask members to turn off any mobile phones and pagers.
I do not.
Agenda item 1 is consideration of a draft order. The order is subject to the affirmative procedure, which means that Parliament must approve it before it can come into force. The motion in the name of the minister invites the committee to recommend to Parliament that the draft order be approved. Before we debate the motion, under agenda item 2, we will have an evidence session to clarify any technical matters or to allow explanation of details. Officials can answer any questions if need be. I remind the committee that the officials cannot participate in the debate once the motion has been moved.
Thank you. It is good to be back at the Finance Committee and to see some of my former colleagues.
Our paper sets out the main reasons why we as professionals regard pre-release access as an important part of the arrangements to maintain integrity. I emphasise that our views are shared by the profession in the Scottish Government.
Thank you. I now invite questions from members.
Are there any individuals or groups of individuals who might be or have been granted pre-release access under the current regime who would not be granted pre-release access under the proposed one?
In principle, there is no such specific group of individuals. We have changed the order so that it clarifies the purposes for which pre-release access should be given, so that it can be given only when it contributes to the purposes that are highlighted in the order. The statisticians would judge whether any individual would serve that purpose.
Can you give me an example of how the current situation hinders the process that you are describing? Is there a practical example of when you think something would have been better if the situation had been as you propose?
The proposals are very much in line with current practice, although there is a slight tightening up. The proposal is to remain with a time of five days in normal circumstances. As I said, that is what works well from our point of view.
I remember, in a previous life, having an argument with people in your department about when certain statistics should be released, most notably the unemployment figures. Is that the kind of thing that you are talking about? Special advisers and ministers have access to figures about a day in advance of publication and, if the figures are going the right way, there is always the temptation to do something with them. Is that the kind of thing that you are trying to get rid of?
We use the time period to argue against such things. We would not consider making any attempts to influence whether statistics were published or what they said. It is currently very clear that ministers and their advisers do not get involved in that sort of discussion, and the order does not impinge directly on that sort of thing other than to say that in the period when they have access to the figures, they should not be engaged in that sort of activity because they can engage only in the activity that the order permits.
In case anybody gets overexcited by what I said, I should probably make it clear that officials in your department rightly prevented my enthusiasm from getting the better of me.
I, too, have experience of the matter, but from a different perspective. My question is primarily for the minister. He said that the order largely reflects proposals that the previous Administration outlined, which ministers had reservations about, and that those reservations are now behind them. Where does the order diverge in substance—if anywhere—from the proposals that were consulted on? Were ministerial reservations dispelled because of changes that were made or as a result of the consultation?
We originally thought that we would have different rules for different types of statistics, but respondents to the first consultation favoured a smaller set of rules to avoid confusion. The order therefore focuses on market-sensitive statistics, which is what it should do. We now have pretty much what has worked in the past, which is the best laboratory for anything, with important statutory backing and extra safeguards.
So, essentially, the aim is to have past practice and what was consulted on, with the simplification of the various rules.
Exactly.
I believe that there have been 10 leaks of statistics since 2002. What procedures are in place to try to stop leaks? Has anything new been considered to enhance the regulations in that area?
We investigate any leak that occurs. I cannot say that we have been hugely successful in identifying the source of leaks, but we have attempted to tighten up arrangements. If procedures have not been followed, we try to ensure that they are. Quite a clear set of rules already exists for staff and recipients of statistics. We try to ensure that we have not missed any angles.
Any wider political interest in the subject will probably be about instances of leaked information, which James Kelly mentioned. I want to discuss the sanctions that will be available. Let us take a hypothetical example. If a person who has leaked information and breached the conditions of the order is identified, are the available sanctions solely those in paragraph 7 of the schedule to the order? If I have read that paragraph correctly, there is an implicit threat that future access to statistics might not be granted to a person if they breach the rules.
That would be one sanction, but things would depend on the circumstances. If someone leaked material that had been classified as restricted, they would be subject to any rules that apply to such behaviour. The cases that may arise may often involve people who are not fully aware of the rules or do not understand them. Obviously, we would ensure that they were aware of the rules in such cases. As I said, things would depend on the circumstances, but the main sanctions are what is set out in the order and whatever other action is appropriate as a result of leaking restricted material.
There will be inadvertent leaks and cases when the leak has no negative consequences; it is important not to go overboard.
There is. Another factor is that leaks will be made publicly known. Although the arrangements for me to produce an annual report are in a state of flux, I will undoubtedly make an annual report of some sort to the new statistics authority. In addition, under our arrangements I am obliged to report any leak to the UK Statistics Authority, which will make that information publicly available. In the case of the hypothetical situation that you described, in which a minister is found to be responsible for a leak, the leak would be made known publicly.
That is helpful. I do not want to stray out of the remit of the Finance Committee, but I wonder whether the minister might be able to tell me whether such a leak—again, I stress that it is hypothetical—would be a breach of the ministerial code.
I am not sure. It would mean substantial damage to the reputation of the individual involved and the Government. The sanction is serious.
This is a statutory provision. Which body or which individuals will be responsible for investigating whether there is a breach?
I would assume that the committee system of the Parliament would kick in. The committees would take a lively interest in the matter and would apply sanctions. I look for clarity from Rob Wishart on that.
The UK—
I am sorry to interrupt but, other than the Standards, Procedures and Public Appointments Committee, which is responsible for breaches of the members' code, I am not sure which committee would be responsible for investigating whether there is a breach of the ministerial code, or statutory codes such as this one.
Would it not be for the First Minister to become involved in that?
I assumed that we have 100 or so active scrutineers on the benches who would be keen to put the balloon up at any breach of the ministerial code or good practice.
It would be helpful if, after further investigation, the minister would confirm that to the committee.
We would be delighted to do that.
I cut across Mr Wishart a moment ago. I am not sure whether he was going to add anything on that.
I was simply about to say that, if it wishes, the UK Statistics Authority can investigate any issue that arises. We have a commitment to openness with that body. The order refers to the fact that the Freedom of Information (Scotland) Act 2002 would not be used as a reason to limit access to information. Generally, the UK Statistics Authority will report to this Parliament. In so far as the authority raises issues, the committee or the Parliament is at liberty to decide what it wishes to do about those issues. That is quite a powerful element.
Further clarification would be helpful. Committees such as this one would have no locus for investigating any alleged breaches by officials. I may be incorrect, but I do not think that the ministerial code covers it either. Mr Brownlee started to ask what read-across there is to the ministerial code. It is not outlined in the draft order.
Apart from highlighting the standard provision, I think that all I can say is that we will have to do some homework on that and report back to the committee separately.
Mr Purvis, you have raised a number of questions that we can seek clarification on.
I would quite like to raise another, if that is possible.
Okay.
On conditions of pre-release access, paragraph 5(6) of the schedule refers to
The interpretation used would be that of the responsible statistician. That wording has been used because it is very hard to draw a line in such matters; for example, a statement that unemployment is going up is a fairly broad indication of something that anyone might be able to guess. I think that anything that falls between that and a quotation of the actual figures becomes a matter of judgment and an investigation would have to examine whether the comment was made with knowledge of the information.
The order contains a clear duty to report
I understand that. I am also interested in finding out about the kind of dispute that a responsible statistician and a minister might have over what constitutes a
Under the terms of the Statistics and Registration Service Act 2005, ministers remain responsible for those matters. As the explanatory note makes very clear, however, ministers effectively leave a lot of these judgments to the responsible statistician.
Does the Parliament receive information from the UK Statistics Authority when it is published, not before?
There are no specific arrangements for giving Parliament access to that information.
So how would we be able to investigate any potential breach?
The information is made available to the UK Statistics Authority as soon as possible. If a leak has had enough of an impact to make Parliament aware of it, members can take action, as they will with anything that becomes publicly known or emerges as an issue. If there has been a leak, it will be self-evident in many cases, although not in every case. My report to the UK Statistics Authority happens relatively quickly.
Mr Purvis, you have had a fairly good run. Are there any final points?
I am concerned by this. It has been indicated that there is a role for Parliament, but Parliament will know about something only if we read it in the paper. We will not know the content of a report to the UK Statistics Authority, and no mechanism exists for presenting to Parliament the information that will be presented to the UK Statistics Authority. The schedule to the draft order concerns statistics in a wholly devolved area. There could therefore be a deficiency in transparency; nothing in the schedule binds the UK Statistics Authority to presenting information to this Parliament. There would be a black hole in the information.
Do you wish to respond, Mr Wishart?
The Statistics and Registration Service Act 2007 requires the authority to be accountable to this Parliament. Arrangements are not yet in place—they are still at an early stage—but the authority's practice is to make everything that it does publicly available. I would therefore expect any report to be publicly available. If this Parliament approached the authority to say that you wished access to reports of any leaks or other breaches, I think that the authority would be obliged to provide you with that information. We can certainly follow that up if you wish us to.
Under the Statistics and Registration Service Act 2007, the Statistics Board has to provide the Scottish Parliament with an annual report. That act is the enabling act for the draft order that we are discussing.
Do you wish to pursue the issue, Mr Purvis?
No. If there is a commitment to come back to the committee with more information, that is welcome.
Paragraph 5(7) of the schedule says:
Paragraph 5 says that individuals may "comment" but may not "seek to change". Press releases take two forms, as you may well know: there can be a statistical press release or a ministerial statement. Clearly, the ministerial statement is the prerogative of the minister. The statistical press release would be subject to the order, which says that the minister must not seek to change it.
So, in a hypothetical situation, if a minister felt that a certain set of statistics demonstrated positive progress, but the statistician felt that the statistics showed only a standstill, there could be two Government news releases saying quite opposite things.
Yes. But we would seek to persuade the minister of—
But if the minister sought to persuade you, he would be breaking the law. Is that right?
Yes.
There seem to be no more questions. The questions so far underline the importance of the work that you undertake and the need for absolute integrity.
What you have seen today is a reinforcement of the primacy of the responsibility of professional statisticians in the delivery of statistics in Scotland and a desire to build on what works, which will be augmented by important statutory backing and extra safeguards.
I invite contributions from members. Under the standing orders, the debate on the motion cannot last longer than 90 minutes.
I will not take up that amount of time, convener. I certainly do not object to the order, but there are a number of areas where clarity would be helpful. I acknowledge that the minister has made a commitment to come back to the committee about that. I will not oppose the motion.
I invite the minister to wind up the debate.
I take on board Mr Purvis's point about clarity. We are keen to address the points that need to be clarified as a result of today's exchanges and to build on the relationship with and involvement of the UK Statistics Authority so that Mr Purvis can be confident that there will be comprehensive accountability to Parliament.
The question is, that motion S3M-02766 be agreed to.
Motion agreed to.
That the Finance Committee recommends that the draft Pre-release Access to Official Statistics (Scotland) Order be approved.
The committee will now communicate its decision formally to the Parliament by way of a short report. Are members content for that to be circulated and agreed by e-mail?
Members indicated agreement.