Official Report 404KB pdf
Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016 [Draft]
Good morning and welcome to the sixth meeting in 2016 of the Local Government and Regeneration Committee. I ask everyone present to turn off their mobile phones and other electronic equipment, as they affect the broadcasting system. Some committee members might consult tablets during the meeting, but that is because we provide papers in a digital format. Apologies have been received from Cameron Buchanan.
Agenda item 1 is consideration of an affirmative statutory instrument. I welcome to the meeting Joe FitzPatrick, the Minister for Parliamentary Business, and from the Scottish Government, Andrew Gunn, freedom of information policy officer and Emily Williams, principal legal officer. First of all, we will take evidence on the instrument and, under the next agenda item, the minister will move the motion recommending that the instrument be approved.
I am pleased to speak in favour of this motion. The order, the second such to be laid by this Government, will further extend the scope of Scotland’s freedom of information legislation, which has been widely recognised as effectively promoting openness, transparency and accountability.
The order proposes to extend freedom of information to a range of organisations: private prison contractors; providers of secure accommodation for children and young people; grant-aided schools; independent special schools; and Scottish Health Innovations. Those bodies undertake a range of key public functions including those relating to security, education, care and health, and bringing them within the scope of the freedom of information regime will increase the public’s information rights. Once the order comes into effect, the public will have the right to ask those bodies for information under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.
The first order made in Scotland under section 5 of the 2002 act brought within the scope of the FOI regime a wide range of arm’s-length organisations that were established by local authorities to provide leisure, sporting and cultural services. Evidence from the Scottish Information Commissioner that was presented in her special report to Parliament last year showed that, for most arm’s-length bodies, request levels stayed the same. The report also found that becoming subject to FOI legislation had not made responding to information requests more or less difficult for the affected bodies. However, the report also noted the importance of allowing adequate time to prepare for designation. As with any new regulation, it is clearly important to be prepared for its impact from day 1.
With that in mind, I am sympathetic towards those responses, particularly from the affected bodies, that ask for a delay in commencing the order, and it is now proposed that the order come into effect on 1 September this year rather than 1 April. Moreover, consultation will shortly get under way on regulations to amend the time allowed for some bodies to respond to information requests. That is designed to accommodate the closure of schools during holiday periods.
I thank the Scottish Information Commissioner for her commitment in offering to support over the coming months those organisations that are now proposed for inclusion. Once the order comes into force, we and the commissioner will be closely monitoring its impact to inform proposals for and the preparation of future orders.
I know that some, including those who responded to the most recent consultation, are not satisfied with the rate of progress in extending coverage, but I believe that the direction of travel is now clear. Indeed, I have already announced the intention to consult on a further order later this year, with the intention of extending the FOI regime to registered social landlords. Separately, officials will consider other options for further designating more bodies, including some suggestions that were made in the recent consultation exercise.
I ask the committee to support the motion.
From what you have just told us, it seems that this current extension is not the end of your work. We have seen moves in the House of Commons to roll back the freedom of information regime south of the border, but I take it that the Scottish Government does not intend to follow suit.
I hope that it is clear from the Government’s actions in this and previous orders and from what I have said about future orders that our direction of travel is very much different from the direction being taken at Westminster.
Thank you. I will now open it up to members’ questions.
Good morning, minister. I want to expand on what is proposed to be covered in the change. For example, you mentioned independent special schools and private sector organisations that hold contracts for running part of the prison service in Scotland. How far do you expect such FOI requests to apply? After all, most of those organisations operate as a subsidiary of a parent company such as Serco or G4S. In those cases, how far do you think freedom of information should go? In the past, private operators have raised the issue of business and financial confidentiality in relation to the services that they provide. Can you expand on what exactly will be covered and on how far someone will be able to take an FOI request that involves a company running, say, a private prison in Scotland? Can they go to the parent company and say, “We want information on this or that detail”?
The information relates to the public sector contracts that are held. That is how the legislation needs to be framed.
Andrew Gunn will be able to add to that.
The minister is right. In respect of prisons, the extension of coverage applies purely to the contracts for the provision of services at HMP Kilmarnock or HMP Addiewell. The extension would cover only the contract for a particular service and would go no further across the Serco or Sodexo remit.
So would management and other fees that might be charged by the parent organisation—say, Serco, Sodexo or G4S—in relation to the provision of services and payment for contracts not be subject to scrutiny under an FOI request?
Fees that relate to the public contract—
Could that element be subject to FOI requests?
It is possible that the situation will not be clear in some areas, but that is where the Scottish Information Commissioner comes in. Indeed, that is why it is important for us to have the time to work with the commissioner; we must ensure that the bodies that we are trying to cover—all of which would prefer not to be covered—understand their responsibilities and that, just as important, the public understand their rights, too. We need to do some work to make sure that that is well understood. That is one of the reasons why I am keen to extend coverage, particularly in those areas.
I welcome your comments about a phased approach to extending FOI regulations, particularly the extension of FOI requests to social landlords. For some time now, there has been a demand to bring social landlords, particularly Glasgow Housing Association, under FOI scrutiny.
If you do not mind, convener, I want to take this opportunity to ask about future work, just so that we are clear on the matter. Is the minister minded to extend these provisions to voluntary, charitable and other organisations that will be delivering contracts on behalf of public bodies? I am thinking, for instance, of the joint integration programmes that the charitable and voluntary sectors have been asked to deliver on a contracted basis. Many of those organisations are currently exempt from the FOI regime. Will the minister and his team consider how widely we can extend FOI coverage to those organisations? In the last session, we discussed the extension of coverage to arm’s-length organisations, but as we now know, a number of health boards, local authorities and others are now giving contracts to bodies that are not covered by FOI legislation.
In her special report, the Scottish Information Commissioner asked us to look at two areas, the first of which related to the question whether there was a public function. In other words, if we see that a body is carrying out a public function, we should look at extending FOI to it. The second area was loss of rights; in that respect, the commissioner and others had very much argued that there had been a loss of rights with regard to housing associations.
We need to look at those two things in deciding how to extend coverage but my officials are looking at a wide range of bodies to which we might consider extending FOI legislation. Obviously, the consultation process on the order was wide enough to give people the chance to suggest other bodies that we might need to look at.
We need to make sure that any extension happens at a rate that allows us and the Scottish Information Commissioner to support the bodies that are coming in. The experience with the leisure trusts was a positive one. Like anyone else asked to comply with new regulations, they had concerns, but in practice there was no reason for them to have been concerned because, with proper preparation, they were able to comply.
People now have a better understanding of their rights when they want information from a leisure trust, and the same goes for other arm’s-length external organisations. Most of the ALEOs in Scotland are already covered because they are wholly owned by the local authority but as I have said we need to look at bodies that might be carrying out a public function and at potential loss of rights.
Andrew, do you want to add anything else?
I reiterate that we are taking an incremental, factor-based approach to the actual functions carried out by bodies that have been identified in terms of statutory underpinnings and public funding. There were certainly suggestions made during the consultation exercise that we will take forward.
I welcome the minister’s positive response on ALEOs, given that organisations initially expressed a lot of fears and that those fears do not seem to have materialised. I hope that other organisations that are brought within the scope of FOI in future view it as a positive rather than a negative step forward, and I look forward to the inclusion of further organisations in FOI requests.
Thank you very much, minister, for what I think is a really positive move, but I wonder whether you could provide a little clarification. With these kinds of announcements, the public’s expectation is that with FOI requests to the prison service, for example, everything falls within the scope of the legislation. However, the fact is that there are still exemptions. How can we make it clearer to the public, perhaps before an FOI request is made, that some information will still be exempt? Often people embark on the process, only to be told at a later stage that the information they are seeking is exempt.
Even if an organisation such as a local authority is entirely covered by the FOI regime, things are always going to fall outwith its scope, and it is the authority’s responsibility to inform the person why information is outwith that scope and perhaps to suggest how it might be brought within scope.
The Information Commissioner’s role is crucial; it is an important post. The commissioner exists so that if people disagree with what an authority is saying or has decided, they can go somewhere independent for arbitration.
Is there a case for trying to show people in advance the scope and nature of information that is accessible through FOI and perhaps what is not available?
We could have a look at that. Given that this is our second order to extend the FOI regime, we should perhaps be doing some work on making sure that folk realise exactly what we are doing and raising awareness of the new rights that folk have.
It is largely up to the authorities to make the scope of FOI clear. Obviously anything that they can do in advance is beneficial but I note that one of the obligations under FOISA is to produce a publication scheme of everything that they hold and are able to make proactively available. Anything above and beyond that is subject to request.
In the authority’s response to an FOI request, either a person should be provided with the information or the authority should set out clearly why the person is not able to get the information. It should also identify the exemptions and set out why it believes that the exemptions apply in that case, with ultimate recourse or appeal to the Information Commissioner.
Andrew Gunn made an important point about information being proactively released. One of the unintended benefits of FOI legislation is that a lot of public authorities have decided to proactively release information to reduce the number of FOI requests that they receive. That positive outcome might not have been expected when the legislation was passed. There is now a huge amount of information out there that people can access without having to resort to an FOI request, and I hope that the new bodies will consider taking the same approach.
As members have no further questions, we move to item 2, which is formal consideration of the motion that the instrument be approved.
I invite the minister to move motion S4M-15235, which the committee will have up to 90 minutes to debate. Please note that officials may not participate in the debate. After the debate, the committee must take a decision on the motion.
Motion moved,
That the Local Government and Regeneration Committee recommends that the Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016 [draft] be approved.—[Joe FitzPatrick.]
Motion agreed to.
Thank you very much. I suspend the meeting briefly to allow the witnesses to leave.
10:15 Meeting suspended.Local Governance (Scotland) Act 2004 (Remuneration) Amendment Regulations 2016 (SSI 2016/6)
Agenda item 3 is consideration of four negative statutory instruments, the first of which is the Local Governance (Scotland) Act 2004 (Remuneration) Amendment Regulations 2016 (SSI 2016/6). Members will see from the clerk’s note that the instrument seeks to increase the level of remuneration payable to local authority councillors by 1 per cent. That will take effect from 1 April 2016. Do members have any comments?
I declare that I have a family member who is currently a serving local authority councillor.
I make the same declaration. My wife is a serving councillor on North Lanarkshire Council.
Is the committee content to agree that it has no recommendations to make to Parliament in relation to the instrument?
Members indicated agreement.
Scottish Local Government Elections Amendment Order 2016 (SSI 2016/7)
The next negative instrument is the Scottish Local Government Elections Amendment Order 2016 (SSI 2016/7). Members will see from the clerk’s note that the order makes provision relating to the reduction of the voting age for local elections. In addition, it makes minor changes in relation to the appointment of polling and count staff. Do members have any comments?
There being none, does the committee agree that it is content to make no recommendations to Parliament in relation to the instrument?
Members indicated agreement.
Representation of the People (Absent Voting at Local Government Elections) (Scotland) Amendment Regulations 2016 (SSI 2016/8)
Our third negative instrument is the Representation of the People (Absent Voting at Local Government Elections) (Scotland) Amendment Regulations 2016 (SSI 2016/8). Members will see from the clerk’s note that the regulations make further consequential provisions relating to the reduction of the voting age to 16 for local elections. Do members have any comments?
There being none, does the committee agree that it is content to make no recommendations to Parliament in relation to the instrument?
Members indicated agreement.
Local Government Pension Scheme (Scotland) Amendment Regulations 2016 (SSI 2016/32)
The final negative instrument for us to consider is the Local Government Pension Scheme (Scotland) Amendment Regulations 2016 (SSI 2016/32). The clerk’s note states that the regulations make amendments to the Local Government Pension Scheme (Scotland) Regulations 2014 to cover the cost capping of employer contributions and the requirement to have a scheme actuary. The definition of “revaluation adjustment” has also been amended to specify the percentage as being the change in prices.
As members have no comments, is the committee content to agree that it has no recommendations to make to Parliament in relation to the instrument?
Members indicated agreement.
Previous
Attendance