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Good morning and welcome to the 34th meeting of the Subordinate Legislation Committee in 2001. It seems like only yesterday that we met last. We have received apologies from Bristow Muldoon.
Freedom of Information (Scotland) Bill
I am pleased to welcome to the committee Keith Connal and Geoff Owenson from the Scottish Executive freedom of information unit and Stuart Foubister from the office of the solicitor to the Scottish Executive. They are here to answer some of our questions on the Freedom of Information (Scotland) Bill. Would you like to make a brief statement?
We do not have an opening statement, unless you wish us to invent one on the spot. We are happy to go straight to questions.
That suits us fine. We asked whether the exercise of the power contained in 7(1), as read with section 4, ought to be subject to affirmative procedure. We want to find out from you why it is not.
The committee raised the matter of the difference between section 7 and section 4. Section 4 sets section 7 in context. It is fair to say that there appears to be a degree of inconsistency between section 7(2) and the proposed approval mechanisms for an order under section 4(1)(a) to amend schedule 1, which is the list of Scottish public authorities. The bill proposes that that would be by negative resolution. Section 4(1)(a) may operate in conjunction with section 7(1). In contrast, it is proposed that an order under section 7(2) would be by affirmative resolution. Section 7(1) operates in conjunction with section 4(1), in that an order under the latter may, in addition to adding an entry to schedule 1, limit the application of the freedom of information regime to information of a specified description. The proposed approval mechanism is consistent with that proposed for section 4(1).
As a bill is built up, the way in which the background, the powers and the appropriate procedures for the statutory instrument powers are developed tends to be a bit piecemeal. Sometimes, at the end of the whole process, we do not pay enough regard to how they fit in with each other and whether what we have done is fully consistent. A procedure that looks appropriate for one bit may not look entirely appropriate when it is measured against another procedure in the bill.
Are you happy with the inconsistency, or would you like to tweak the bill a bit?
We should give more consideration to the matter. There is an inconsistency for which there is no huge justification.
I am happy with that; are members happy with that?
It sounds very fair, if I may say so.
Yes—the committee seems delirious.
I am grateful to the solicitors for committing us to reviewing the procedure.
You have the Christmas holiday. No need to worry—you have plenty of time.
At the end of my brief it says that we are happy to recommend a review. We will do that.
Thank you very much.
We appreciate the concerns that have been raised. Section 12 allows what could be called a disproportionate cost threshold to be set by order. In a sense, it operates in conjunction with the fees scheme that may be set out under section 9. The Executive has already indicated what the structure of the fees regime under section 9 and the likely upper threshold under section 12 will be. As you say, convener, the Justice 1 Committee has already raised this issue. It will be considered closely during the passage of the bill, when the structure under section 9 and the proposed upper threshold under section 12 will be made known. Because of that, ministers are not at the moment inclined to use the affirmative procedure.
There is a difficulty with that. Problems never arise the first time, but most of us like to think ahead. The first time amounts are set, everything will be watched carefully. Obviously, during the passage of the bill, ministers will have to stand up in the chamber and state what the amounts will be. However, the power to make regulations will continue thereafter. The money threshold is an important mechanism of the bill. It is not, to use the expression that was used before, a matter of housekeeping. A Government—not this superb, excellent and wonderful Government, but a wicked Government of the future—could use the threshold to knacker the thing. The mechanism could be important and it seems too serious an issue not to be dealt with in the most open and transparent legislative way possible. No one is suggesting that there will be problems the first time, because it will be monitored carefully, but people are worried about the use of regulations five, 10 or 15 years down the track. Being able to change the threshold would be a way of totally manipulating the bill.
Also, there is no requirement for prior consultation, so a really wicked Government would be able to dodge the issue in two ways, if it wanted to. At the very least, you must have one or t'other—you have to have affirmative resolution or you have to have prior consultation written into the bill.
This is an important matter. I can hear Murdo Fraser, who is not a political ally of mine, muttering in agreement. This is too important to be left.
Yes. I concur.
We are content to acknowledge the concerns and the strength of feeling that you are expressing—if not about the present arrangements for establishing limits, certainly about the future arrangements. We will pass those views on to ministers.
Because the bill is such an important piece of legislation and because the principle that we have raised goes to the heart of making the bill worth the paper it is printed on, we will keep our eye on this.
We have to send a fairly strong message.
Oh, I think that the message has got through, Colin.
Fixing the financial threshold is theoretically a way to manipulate the principle of the bill, if you wanted.
I would not want to and I am sure that you would not either, Gordon. Somebody might, however.
I wonder whether sections 9(4), 12 and 21(6) ought to include a formal requirement to consult.
I must admit that I am not a huge fan of bills that require the Scottish ministers simply to consult as they see fit. That is not terribly productive as, if they want to consult, they will. However, perhaps the committee thinks that a particular body or group of people should be named in the bill.
I would have thought that, in relation to freedom of information, certain bodies should be consulted.
I do not know whether there are any bodies that the committee feels should be named in the bill as the ones that should be consulted before all others. Given the number of public authorities, a requirement to consult all of them might be rather onerous.
A difficulty in naming bodies is that, 10 or 15 years down the line, a body that we named might not be all that relevant. I take the point that, as a lawyer like me, you do not like the vagueness of not naming bodies. The financial limit is important. If a requirement to consult is included in the bill, the Government will be obliged at least to ask around on the subject. I know that that sounds vague, but an obligation to ask around might be better than no obligation at all.
Strenuous efforts must be made to ensure that the process by which changes are made is as transparent as possible. I do not know how that could be written into the bill—thankfully, that is not our job—but we think that it should be.
We tend not to like open-ended provisions in bills. On other occasions, we have asked for detailed lists instead, but in this case we recognise the difficulty.
The formulation that goes, "The Scottish ministers shall consult whomever they think appropriate," is not unknown. It could be argued that that formulation should be used in relation to almost any regulation-making power.
I thought that it did appear in relation to almost any regulation-making power.
It does not appear as a matter of course but, as I say, it is not unknown.
Including that formulation means that, if it cannot be demonstrated that a consultation process has taken place, the regulations are knackered.
It creates a duty at least to consider whether there are people whom the Executive should consult.
The Executive would need to produce a statement detailing its thinking on consultation if the regulation is to work.
Generally, a formulation that requires the Scottish ministers to consult whomever they think fit could, strictly speaking, allow the ministers to say that, having thought about it long and hard, they did not think that there was a need for consultation.
I want to ask a genuine question to which I do not know the answer. Is there a requirement to consult in any food safety legislation?
The Food Standards Act 1999 probably contains that requirement. It is not an unknown formulation.
It is hard to see what harm putting that obligation on the Government would do. I know that that is not a very good thing for a lawyer to say.
I accept that point, but in that case the words could simply be included in every regulation-making power that is included in a bill.
We might want to place an obligation on the Government to consult in certain cases to highlight how crucial a regulation is and to emphasise that it is not just a housekeeping regulation—in this case, for example, the level at which the threshold is fixed is vital to the working of the bill. I am not suggesting that every housekeeping regulation should be made subject to consultation, but in this case that might be a good idea, to emphasise that it is not a housekeeping regulation but one that makes the bill either knackered or workable.
Would the witnesses like the committee to provide a written note that pulls together our thoughts?
Yes, if the committee would find that useful. However, I think that we have caught your feelings quite clearly. We can take matters away and discuss them with ministers.
We move on to section 63(1), which, as members will recall from last week, confers a very wide power.
I am sorry, convener, but I am not up to speed on section 63, as I was not present last week. Can the witnesses give me a hypothetical idea of how the section would work in practice, so that I can see what it is trying to do?
We got the sense that members are looking for an understanding of the intention behind the provision before they form a view on whether the approval mechanisms are appropriate.
Is such legislation common? I know that the SLAB has a statutory bar on disclosure—sometimes I wish it would disclose less information, but there it is. Does much legislation contain statutory bars on disclosure?
Such legislation is relatively common. I am aware of a fair amount of statutory bars in the environmental field, in which the bars are by no means complete. However, there are free-standing bars on the disclosure of commercial secrets or information whose disclosure would be contrary to the interests of national security.
Is an important point of principle not involved, as you are seeking to amend primary legislation through secondary legislation? Usually, when a bill is used to repeal earlier enactments, it simply lists those enactments. Why has that not been done in this case?
They have not found any such enactments yet.
Yes—we have not yet found any enactments that need to be repealed. We want to be guided by experience as the regime develops. We do not think that existing bars stop the disclosure of information that should be disclosed under the freedom of information regime. However, hand on heart, we would hate to say that there are no bars that stop the disclosure of information that should be disclosed and that we will never come across any in future.
The bars that you have found tend to be those that will continue to exist under the Freedom of Information (Scotland) Bill, such as those that exist for commercial reasons or reasons of national security.
The bill's approach recognises the individual prohibitions independently. You are right—even if an individual prohibition in another act were repealed, the general prohibitions would catch at least some of the information.
The examples that you have found are blocked, but you might come across others in future.
That is catered for. Section 26 of the bill says:
That means that it is important that you have the power to remove or restrict prohibitions. I am in favour of that. The power is important.
Use of the power is subject to affirmative procedure. We note that it is not altogether sleight of hand or under the counter. However, the committee has come across the principle of amending primary legislation by subordinate legislation before and has said that it is not too keen on it.
The power would not really do that. The changes would be made by listing the acts to be amended in statute. The bill would automatically do it if we had found them in time. The power is there to cover the possibility that, three months down the road, we will find the odd piece of legislation that needs to be amended. If they had been found now, they would just be repealed in a schedule.
There is an element of that in the power, but there is also an element of wanting to see how the freedom of information regime works. Any power that we are taking under the bill is a power to liberalise the disclosure of information. It is to remove or restrict an existing prohibition. If the Executive were asked to make a decision once and for all at the point of the bill's enactment, a stricter view would be taken now and we would not have the flexibility to liberalise at a later date.
That is an irony for us.
I judge that most of us are in favour of freedom of information. It is ironic that we are arguing against a power that would allow access to information. We are not actually arguing—I am convinced by what the witnesses are saying, to be honest. Like Gordon Jackson, I am inclined to accept the power, which I did not like on paper.
It seems to me that the power is on the side of the angels against the existing powers, which could be used sinisterly.
Those existing powers are in the primary legislation for substantially decent reasons. They are not there to hide information. There are reasons why certain information should not be available. However, a point may come at which those powers get in the way of the more important duty to provide freedom of information. I am inclined to go with the bill.
I add by way of further context that it is common in other countries when introducing a freedom of information act to include such a provision. That is not to justify the approach in its own right. It is introduced partly for the reason that Stuart Foubister has outlined: to give the flexibility to adjust, after considering how the freedom of information act operates, some older statutory bars that might work against the principles of freedom of information. Part of that process is a review of statutory bars. That involves looking proactively through the statute book, examining the statutory bars that may be in it and identifying those that are candidates for repeal or amendment. That is the common approach, rather than to try to do all that up front, reach a final determination on everything, pass the freedom of information act and not have the power. The freedom of information regime would only be as good as it was on the day that the act was passed.
The power might never be used, but it can be used only to give more freedom of information. It cannot be used to give less.
We can agree that the power is an anomaly and that the committee is minded to accept the witnesses' explanation. Unless there is anything else that anyone wants to raise, I thank you for attending this morning. We hope that you have a nice Christmas and that you do not need to take home too much paperwork.
The spirit in which you have come has been very good. You have been willing to be up front with us.
I wish to raise a procedural point. The committee feels strongly that the financial limit should not be open to being messed about. I do not know how we get that across. The point is not one of our 95 million wee tweaks—we really care about it.
I have discussed with the clerk what we can do. The first thing is to stress that we think that the financial limit is central to the integrity and efficacy of the bill. Do we want to stress anything else in our note to the Executive?
I simply want that point to be made strongly.
We will do that.
Marriage (Scotland) Bill
We should write to the Executive to ask why it has chosen to produce such a skeletal bill. Once again, the bill is absolutely minimal. When I read the bill I realised—and if I realised it, anybody will—that the definition of what constitutes a place lacks precision.
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Executive Responses