Justice 1 Committee, 13 Nov 2001

Meeting date: Tuesday, November 13, 2001

Official Report 295KB pdf

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Freedom of Information (Scotland) Bill: Stage 1

We will now take evidence from Chris Bartter, communications officer, and John Stevenson, chair of the communications committee, at Unison Scotland. We have received a written submission from Unison, but Mr Bartter wants to make a short opening statement.

First, I thank the committee for the opportunity to give evidence on the Freedom of Information (Scotland) Bill.

Unison Scotland has two remits.

I apologise for the poor quality of light in this room. I do not know how much difficulty you are having with your papers.

It is not too bad.

We are trade unionists working for the public sector. As employees and members of the general public, we often require to seek information from our employers. Because we represent public sector workers, we will represent many of the staff who will be required to provide information under the bill. With those cross-cutting concerns in mind, we ask the committee to do something to improve some aspects of the bill.

Our written evidence indicates that we are supportive of many of the positive aims of the bill. We appreciate that the bill is stronger than the Freedom of Information Act 2000. The harder harm test of substantial prejudice and the additional public interest test are welcome, as are the powers and independence that will be granted to the Scottish information commissioner.

We are pleased that the bill is indicative of a genuine aim for more open and accessible public services. Members have been given our written submission, so I will not go through it again. Let me say only that our organisation subscribes to the principles that have been circulated by the Campaign for Freedom of Information strategy group.

I draw the committee's attention to two key areas that must be addressed, the first of which concerns the bill's coverage. The bill, quite rightly, is aimed clearly at public authorities. Unison has no problem with that, nor do we have a problem with the authorities that are listed in schedule 1. However, some organisations that we consider to be public bodies—such as local enterprise companies, social inclusion partnerships and housing associations—are not listed.

The authorities that are listed in schedule 1 are listed correctly. However, we now live in a society in which public services are delivered by a variety of agencies: the voluntary and community sector, partnerships, private finance initiative projects, public-private partnership schemes, contracted-out services and private firms. Although the bill attempts to cover those agencies by allowing the minister discretion to name such organisations as he or she sees fit, it contains no guidance on the criteria for inclusion. There would be huge areas in which it would not be known whether organisations were covered. For example, would the bill cover private schools? What if the contractor to a public body that was covered by section 5(2)(b) were to subcontract services to another company? What if a whole service were to be privatised in a similar way to gas and electricity supplies? Those questions and many others are not answered.

Before such firms could be covered, they would have to be subject to an individual consultation process, yet no guidelines are given on how often that consultation should take place or on the mechanics of the process. The bill could easily give rise to a two-tier freedom of information system, in which some providers of public services would be liable to provide information to the recipients of their services—who might be tenants, students or workers—whereas others would not. For example, if the tenants of councils such as Glasgow City Council, Scottish Borders Council or Dumfries and Galloway Council vote for wholesale housing stock transfer, they would move overnight from a landlord that was covered by the bill to one that was not. Incidentally, we are still waiting for Falkirk Council to release its full business case for its PFI schools refurbishment project.

In our written submission, we made a number of suggestions on how the problem could be tackled. Most important, the bill should include a purpose clause, which should state the aims of the bill and whom it is intended to cover. For example, the Human Rights Act 1988 states that it applies to bodies

"whose functions are functions of a public nature"

and the concept of the emanation of the state is included in many European Union directives.

In addition, if public authorities can be listed, why should not the list include private and voluntary bodies that provide public services? The inclusion of such bodies would serve a dual function: it would make it clear that the bodies would be covered and it would start the consultation process. That would mean that the legislation could come into effect to cover all public service providers at the same time.

The second point to which we draw the committee's attention concerns how the bill's intended change in culture will be achieved and how the resources will be provided to ensure that information is stored, processed and retrieved. Anecdotal evidence from our members suggests that the archiving and information-storage-and-retrieval function of authorities has been a low priority for some time. In periods of cutbacks and reorganisation, low-priority services suffer. Authorities have never dedicated huge numbers of staff to such services, but our information suggests that the numbers of such staff have dropped further. For example, The City of Edinburgh Council has only four and a half whole-time equivalent staff who work on its archives. The City of Edinburgh Council is one of the biggest local authorities, so what does that imply about the staffing situation in other authorities?

The bill's financial memorandum, which suggests that authorities will not need extra resources because they already provide information under existing codes of practice, ignores the fact that the bill is supposed to achieve a culture shift in people's attitudes towards freedom of information. I am not being disloyal to public authorities when I say that they will be required to take a considerably different attitude to their information function. Adequate storage facilities, proper access-and-retrieval systems and training for staff will be required.

The financial memorandum also ignores the fact that we have gone through a long period of cuts and reorganisation. Prior to 1996, 12 local authorities had a statutory archiving function, but after 1996, 32 authorities had such a function. I am not aware of any major increase in staffing to cover that. A Friends of the Earth Scotland trial survey indicated that a number of public authorities have difficulty in complying with the timetable of the current codes.

Resources and training need to be given much higher priority if public authorities are to be able to meet their responsibilities under the bill. I understand that the Scottish Executive's estimated figures in the financial memorandum were loosely based on the Irish experience. At a recent seminar on freedom of information, Patrick Whelan—the director of the Irish Office of the Information Commissioner—said that the resources that would be required to cope with demand had been greatly underestimated. In the OIC office itself, the four original inspectors had to be increased to 12 in two years—and that does not take into account the effect on public authorities outwith the OIC.

If the bill is to achieve its aims, the loopholes and anomalies in its coverage must be addressed and the Executive must tackle the issue of resources. Other aspects of the bill are covered by our written evidence and our previous responses. If members have any questions, we will be pleased to answer them.

I want to ask about training and how staff will cope. We talked about the change of culture that will be needed and how long it might take. How long will that change take? What sort of training will be necessary?

To answer that question, we would need to know what resources will be available to provide training. Two kinds of training will be required. First, training will be required that indicates to staff the importance that the Scottish Executive and the public authority attach to freedom of information and to ensuring that it is given due weight by staff. In addition, every public authority should have a designated officer who is responsible for freedom of information.

It would be useful to include likely users of freedom of information provisions in the same training to ensure that people on both sides of the fence are aware of the legislation and the procedures that authorities will adopt. That would introduce people to one other and provide the service that people want.

We need guidelines, responsible people and training that covers the importance of the legislation. That applies not just to the front-of-house people who will receive requests over the counter, but to staff whose job it will be, or should be, to ensure that records are kept, information is stored and the guidelines that are set by the Scottish information commissioner are adhered to.

Staff will have to know what information they can and cannot give out and how to define vexatious requests. Do you foresee problems?

Yes. There is anecdotal evidence that some of our members envisage problems with vexatious requests, for example. Such terms are not well defined in the bill and it is difficult to see how they could be. We would like the section in question to be removed from the bill—that would not be a major problem. Our information is that repeat requests are easier to process than new requests.

I think that information about repeat requests would be put on a website if it were obvious that people were continually asking for the same information, so there would not be a problem with that. However, making a subjective judgment about a vexatious request could—

We would not want individual members of staff to have to make subjective judgments of that sort. The question whether a request was vexatious should be a judgment for either the legislative authority or the public authority.

Or perhaps for the information commissioner.

Indeed.

You said that four and a half staff work at the Edinburgh archive. Do you envisage needing a lot more staff to deliver this service?

That will depend very much on the authority. In some smaller authorities, I do not think that a huge increase in staff will be required; proportionately, a large increase in staff will not be needed in any authority. However, our evidence suggests that extra resources may be needed for some time to set up systems and processes, to ensure that information is more easily accessible.

Money may need to be spent on making information more easily retrievable.

I hope that resources will be available for that.

You mentioned the need for a purpose clause. The official line seems to be that such a clause might be restrictive and that it would introduce to the bill an element of vagueness that is not currently there. How would you argue for a purpose clause?

The bill's current title is clear, but restrictive. It is difficult to argue that a purpose clause would be more restrictive than that. The bill is restricted by its title to the provision of information by public authorities, which are clearly defined. However, the intention, certainly as described in the consultation paper "An Open Scotland", was that the legislation should provide for information to be made available on public services, whoever the providers of those services. It would be invidious for a situation to exist in which suppliers of one public service were liable to provide information under the bill, whereas providers of the same service elsewhere were not, simply because their function was described differently.

A clearly written purpose clause would help to define the scope of the bill, rather than making it vaguer. It would help to clarify the intention of the bill and whom it is intended to cover.

It has been suggested that the bill should cover all public service providers. That seems to me to be rather a good idea. Would public service providers need to be listed or could it be left to the courts to make it clear what public service providers are?

In our written evidence, we suggest that it would be best to include both a purpose clause and lists to clarify what is meant by a public service provider. Lists of public authorities already exist. If, under section 5, ministers were to define other bodies as public authorities, presumably those bodies would have to be added to the list or a separate list would have to be created. I see no difficulty in that. As I said, there are a number of ways in which public sector providers could be defined. Lists would be one way of doing that.

It has been suggested that large commercial companies could come under those provisions, in so far as they have activities, that make them public service providers. If a big multinational gets a contract, through PFI for example, to build a road, which aspect of the work comes under those provisions? In general, we cannot ask questions about what the company is doing in Canada or Timbuktu or wherever. How would you list that? Is it not better to stick to the concept of public service provider, rather than list firms when, from time to time, they undertake PFI contacts?

If the aim of the bill is to provide information on public services, it makes sense to list the public services about which we are talking. My understanding of how that part of the bill will work is that the minister will designate a firm or part of a firm that deals with the service in question. I see no real problem in doing that. It is no more of a problem than are the current designation procedures.

You are against class-based exemptions but not contents-based exemptions. Will you run through your arguments on those exemptions?

We see no reason why so much of the information should be the subject of class-based exemptions. The legislation aims at openness. Any content-based exemption must satisfy the harm test of substantial prejudice and the test of public interest. It strikes us that any information that can be excluded by the legislation, such as information that is already in the public domain, can be the subject of an absolute exemption. The class-based exemption seems to give other levels of problem. It leads to the anomalies that are to be found in the bill.

For example, information that is commercially confidential is the subject of a content-based exemption in that it is subject to the substantial prejudice and public interest tests. That is fair enough. However, trade secrets are a class-based exemption. I am not a lawyer and do not know whether there is a legal definition of a trade secret. If there is not, who knows how it will be defined? Are processes, staffing levels or the amount of cleaning of a hospital ward trade secrets? If so, they fall under class-based exemptions. That automatically exempts companies from requiring to give information on them.

Can I intervene? We are muttering that a trade secret would be the recipe for Drambuie or black bun. Those recipes might be trade secrets whereas staffing levels and so forth would come under commercial confidentiality. Do you accept that?

I am not sure that that is true in all cases. Is it not still the case that the private sector providers of Kilmarnock prison refuse to give their staffing levels?

The basis for that is commercial confidentiality, as the prison does not want its competitors to know its contractual arrangements. It is not a trade secret, which is something that is usually in the manufacturing or development of a product—I hear mumblings of "Irn-Bru", but we are digressing from the question. Please press on, Donald.

I am happy at the moment.

Perhaps the cold is affecting us.

I would like to ask one or two questions about funding. It is estimated that the implementation of the bill will cost between £2.5 million and £4.8 million a year. Am I right in thinking that you want a firm pledge that those resources will be delivered to public authorities to implement and deliver that service?

Yes, we are asking for resources to be delivered to public authorities for that purpose.

What concerns do you have about the method of communication and about the requirement to lodge written or electronic requests being unfair, because some people might find it hard to communicate in that way?

We are concerned about the bill's requirement that requests both for information and for review must be delivered by written or electronic means to be acceptable. That could discriminate against people whose first language is not English and against people who have difficulty in dealing with written language at all. From that point of view, we think that there is potential in the bill for discrimination. We think that it should be possible to develop a system whereby requests, whether they come in by phone or by personal approach, can be recorded and tracked. We accept the need for the requests to be recorded in some way so that they can be tracked, but we do not think that the restriction that they should be submitted in writing or electronically is wise.

Do you have a list of categories of persons who might be in that position?

We do not have a list, but I am sure that there are agencies that would be able to provide one.

So you are raising the principle.

I would like to ask about charging. I think that there was some concern about a partially sighted person being charged more for information in larger print. Are you arguing for fair play and for the need not to disadvantage people because of physical disability?

Indeed we are.

What are your views on the proposed role of the Scottish information commissioner? Are you content with that?

We think that the role of the Scottish information commissioner as set out in the bill is one of the plus points of the legislation. It is good that what is envisaged is a powerful and independent authority. Small areas, such as the sanctions available to the information commissioner, might need to be beefed up. However, we are much happier with the powers and independence of the Scottish information commissioner compared to those of the UK information commissioner.

Are you at all concerned about the powers of ministers to overrule the decisions of the commissioner by ministerial certificates?

We are opposed to the ministerial veto.

In principle?

Yes.

That will obviously be a controversial issue.

You propose that a designated freedom of information officer should be appointed for public authorities. Can you tell us more about that?

As I said when I talked about training, we think that it is important for each public authority to have a designated freedom of information officer, whose job is to ensure that the legislation is followed and implemented as it should be. We are not saying that a new post should be created in smaller authorities, but somebody should certainly have that role as part of their function.

Do you feel that your views have been taken into account properly and fully during consultation?

Some of our views have been taken into account and we welcome that. However, it is clear that the minimal changes between the draft bill and the bill that the committee has in front of it are indicative of the fact that many of the important points—particularly the two points that I raised at the start—have not been taken into account in the process.

I have two questions about two entirely different areas. The idea has been considered that the commissioner and the proposed public sector ombudsman should be one and the same and that they could operate together as a one-stop shop, as it were. Along with Aberdeen City Council, you responded that the function of the two offices might be sufficiently different to make such an approach inappropriate.

Will you expand on that? There are many names and many organisations out there. It seems quite attractive to know that the Scottish public sector ombudsman is the same person to whom we go when we want access to the type of information that the Freedom of Information (Scotland) Bill deals with and to know that the ombudsman will deal with regulation. That might not be a bad idea.

I can see how that might appear attractive. The Scottish information commissioner should be an independent post and should concentrate on the function of ensuring freedom of information. The commissioner should be allowed to issue guidelines and carry out investigations.

Although the coverage in Ireland is slightly different, the number of staff that the information commissioner in Ireland required rose considerably from the original estimate. I do not think that it is a question of there not being enough work for an information commissioner. The other fact that supports that view is that three of the posts that are currently subject to the freedom of information legislation are the ombudspersons for health, local authorities and administration. If they were subsumed into one post, the information commissioner would be in the invidious position of policing his or her own submission.

Are you saying that there would be a conflict of interest?

That depends on how the appointment is done, but there is a risk of that.

I ask about the codes of practice. The framework is exactly that, but the codes of practice are important for the public, your members and public bodies.

I am concerned that the codes of practice will fall late in the legislative process. At the most recent meeting at which members took evidence, there was hope that we would have the codes of practice before stage 3. What is your view on that? It seems to me that that would alleviate many of your fears, as the question of vexatious applicants might be dealt with.

We see no reason why work should not be started on developing codes of practice in advance of the legislation. We have codes of practice for the information that the Administration and public authorities provide.

We said in one of our submissions that we would like training to start before the bill is passed. Codes of practice and guidelines would make that much more possible. Unison, too, would welcome the issuing of guidelines and codes of practice as soon as possible for precisely the reason that you indicated, convener—to clarify the situation for our members who will provide the information.

The idea is attractive. What you said about extending what comes under the public authorities is worth while. Donald Gorrie said that a company that was within that remit for only a short time might be listed. We cannot include such companies in the legislation. However, guidelines for codes of practice would make it clear, at least in the initial stages, to a local authority or other body that they might be caught up in the eventual act. The commissioner could consider both the remit and whether the interpretation was correct—the commissioner could act as both an adjudicator and as an advice centre on the legislation. Do you agree that that is a better way of dealing with the matter?

Until now, we have thought that the codes of practice should be in the main body of the legislation. This is not an area that we have given a huge amount of consideration to and we may well consider your suggestion on guidelines more favourably. We have indicated that we think that the delineation of who should be covered should be added to the role of the information commissioner. That might be a step forward.

You do not believe that much progress has been made with the drafting of the codes of practice, although there are guidelines. We might get some idea from looking at the Freedom of Information Act 2000. To ensure that the committee has a rounded view of the legislation at stage 2, do we need to know more about the codes of practice?

Reading those codes of practice would assist both the committee and other people.

Because it might affect some of your members, I will raise the issue of enforcement. The powers of enforcement seem to me to be zero. If a bolshie council department or quango fails to produce the information and the commissioner tells it that it is naughty, what happens then? It may have to produce the information but there seems to be no penalty, even if the organisation consistently does that.

It was suggested to me that the commissioner could send in somebody to that department to ensure that it performed properly. Some of your members might take a dim view of that, might they not?

The question of imposing sanctions on a recalcitrant body involves the clear delineation of the responsibility of the authority and the responsibility of the individual member of staff. If there is a recalcitrant authority, the sanctions should apply to the authority. Having said that, we will not sit here and defend obvious malpractice. The bill refers to the criminal offence of the deliberate destruction of records. We support the bill in that and will continue to do so. It should be made clear that the sanctions are against the bodies or authorities that have made the decisions.

In your submission, you say that the suggestion that any request that would cost less than £100 should be free is unacceptable. However, would that not cover the vast majority of requests? You also say that that ceiling should be raised and that help should be provided to voluntary bodies. Would you elaborate on your ideas?

In an earlier submission, we suggested that the limit should be around £200 or £250. In particular, we would like the removal of the provision in the legislation that indicates that authorities will not be obliged to provide information above a certain level, as that level is currently lower than it is in the UK legislation.

Are there swings and roundabouts? Am I right in saying that the ceiling of £100 in Scotland is higher than it will be in England?

You might be right—I am not absolutely sure at this stage.

How many of the requests do you think will fall into the under £100 bracket?

Quite a lot of the one-off requests will fall into that bracket. The cost is likely to be more than that for detailed information requests, when people may be seeking detailed information on future plans for public services, costs and so on. That information may take much more time to put together. That will cost more in terms of the authority's time and resources. I have not seen estimates of how many requests would fall into the lower category. We think that £100 is not very much for a detailed search. Some authorities have quoted—not implemented at this stage—£50 an hour for an information search.

That is surely not what your members get paid.

No, it certainly is not. If that is going to be the charge, it is clear that the limit of £100 will be reached quickly.

Would £250 be a better limit?

Perhaps it would be better if there was a linked figure that would automatically uprate.

We would like to see the figures on which the limits are based.

Would you like there to be standard fees throughout Scotland? I am not sure whether that is part of the proposals. Let us take as an example property inquiry certificates from local authorities when somebody is purchasing a house. They are now a good source of revenue for local authorities. The charges vary throughout Scotland for property inquiry certificates. Would we want a standard charging rate throughout Scotland so that it was not felt that one local authority was—far be it for me to say this—profiting from providing the information?

Given the range of information that will become available under the legislation, there would be difficulties—

I meant a rate.

As I understand it, this aspect is covered in enabling legislation—the details are not in the bill. We were not in favour of a flat rate. We thought that the majority of inquiries should be delivered free of charge. We are also clear that authorities should not try to recoup the whole cost of providing the information. We felt that that would mean that the cost of the provision of information would be prohibitive. I believe that that principle has been accepted in the legislation, although we do not necessarily agree with the specific figures that have been produced.

I feel that we are going further and further into the night. Before darkness descends, I will say thank you very much, gentlemen.

Thank you very much for listening to us.

Good afternoon to the witnesses from the Disability Rights Commission. I am sorry that you have come as the light is failing. We are peering into our papers. This is a very bad venue for a meeting.

Adam Gaines is the head of policy, Maire McCormack is the parliamentary officer and Lynn Welsh is the legal officer. We have a submission from the commission. I know that the witnesses have waited for a long time, but I ask them to make brief opening statements because it is useful for us to ask questions and to receive lengthy answers. As I will be disabled for the next six weeks with a broken ankle, I have sympathy for people who try to get in and out of this building in a wheelchair. We need a proper ramp into the Hub, because I know that one cannot get a wheelchair over the existing ramp.

I thank the committee for the opportunity to give evidence. My initial comments will be brief, but we have a written opening statement that we will make available, if that will save time.

Overall, we support freedom of information and the general principles of the bill. We want to ensure that disabled people can access information on an equal footing. We are particularly keen to ensure that the bill makes specific reference to the needs of disabled people. Although we recognise that the bill is not intended as an equality measure, it provides a good opportunity to produce an exemplar of best practice for disability access. That means ensuring that disabled people can access information in a format that is most relevant for them and that the costs are not passed on to them.

The official argument for requiring applications in writing is that it avoids disputes. In a telephone conversation, the two parties might have different interpretations of what is agreed, which might lead to disputation. It is safer to ensure that applications are written down. Why should we accept as applications telephone calls, personal visits and conversations?

We appreciate the arguments for freedom of information requests to be in writing or in electronic format. However, the requirement in section 8 of the bill that FOI requests must be in writing could cause substantial difficulties for disabled people, deaf people, blind people and people with mobility difficulties. As was mentioned by Chris Bartter, the witness from Unison, the problem applies not exclusively to disabled people, but to people from minority ethnic groups. The Disability Rights Commission feels that public authorities should be required to accept requests for information by other means, such as by telephone or in person.

The Disability Discrimination Act 1995 already requires reasonable adjustments to be made in the first instance. Such a requirement under the FOI bill will ensure compatibility with part III of that act. We appreciate the reason behind the argument for requests to be made in writing, but to generate a culture of openness and transparency throughout the public sector, access to information must be provided clearly and equitably.

The two tasks for the Disability Rights Commission are to eliminate discrimination against disabled people and to promote equal opportunities for them. That element of the FOI bill is potentially discriminatory against disabled people and could place several barriers in their way.

I will pursue that point. I hear what you say about not everyone being able to make requests in writing, but some people might not be able to make requests by speaking either. They might have severe communication difficulties. Surely we are looking not for a form of communication other than writing, but for advocacy for people with communication disabilities.

A reasonable adjustment could be the provision of advocacy in person or by telephone. That could be a role for the Scottish commissioner or the designated person.

As Maire McCormack has said, all providers of public services have a duty to ensure that their services are available through auxiliary aids and services. By insisting on writing, they breach the DDA.

We must start from that point. Those public service providers will have to arrange another form of communication for people who would find it unreasonably difficult or impossible to make requests in writing. The 1995 act and the bill conflict. How public service providers make that adjustment to make their services available is open to discussion. It is their duty to provide alternative means of communication.

I understand the problem about recognising communication that is not in writing as a true record. That is why I suggested advocacy, as that would allow the advocate to write on behalf of someone.

Not everyone will require an advocate. That presumes that people cannot make their own representations.

People would have to be able to check the written version of their representations. I am not sure how the system would work.

The task is for the local or public authority. If a body requires information in writing, it might have to make an officer available to meet the disabled person and write down their information.

The problem is not insuperable. It would be quite easy to organise that.

It would. At present, many public services are available by phone, so the possibility of disputes over records is an insufficient reason for not allowing other means of communication to be used.

Many public authorities take requests for information in different ways. It is important to public authorities that they have a record of requests.

That is because of the time scale.

From our perspective, it is important that a reasonable adjustment is made for individuals to make requests in other ways than writing. Some existing processes could be used for that.

Authorities would also want to know that the person who made the request was the person whom they said they were. They would require proof of identity.

A written request does not necessarily require proof of identity.

A signature might provide that.

I presume that a signature would not be checked before information was provided. We are keen to ensure that disabled people are treated equally.

I take your point.

That is important. It is not a case of letting people substitute for disabled people. Disabled people must be treated equally and given the same place as non-disabled people.

Section 11, which is on the means of providing information, states that

"the authority must, so far as is reasonably practicable, give effect to that preference"—

the applicant's preferred means of receiving information. Subsection (3) states:

"In determining, for the purposes of subsection (1), what is reasonably practicable, the authority may have regard to all the circumstances, including cost".

You talked about able-bodied people not being hide-bound to writing for requests, but providing information in Braille or any other form for people with a range of disabilities might involve even more expense. Is the provision sufficient?

No.

This lady is ready—she is on the starting blocks before I have got there. If we left that insufficient provision and someone was not provided with information as they required it in a certain format because of their disability, could that person bring a test case under the Disability Discrimination Act 1995? I have a feeling that much of what will eventually be the position will have been formed—as it always is on the edges—by test cases. Is that sufficient, or should the bill itself expand on that issue? I am sorry—that question was very long.

At the moment, local authorities have a duty to make reasonable adjustments for any service that they provide. Our concern is to ensure that, when they decide the means of provision under section 11 of the bill, they do not take into account the cost of that reasonable adjustment. Otherwise, what will happen is that the two costs will combine and automatically mean that most disabled people will receive one of the cheaper means of information provision, simply because of their disability. That is discrimination. We are arguing that section 11 should include a stipulation that reasonable costs do not include the cost of reasonable adjustments that local authorities are already obliged to make under the Disability Discrimination Act 1995. In other words, there is a two-step process. First, what means will be provided under section 11? Secondly, what reasonable adjustment will allow us to provide those means?

Are you saying that the bill should state explicitly that the reference to reasonable adjustments in section 11 is compatible with section whatever it is of the Disability Discrimination Act 1995?

Yes.

Including a reference to the Disability Discrimination Act 1995 would help public authorities to carry out their duties. As a result, we would not have the cases that you referred to, convener, and public authorities could prepare their schemes in the knowledge that they would require to take the issue into account.

So the bill would include wording along the lines of, "For the avoidance of doubt, this provision includes the definition made under whatever section of the Disability Discrimination Act 1995."

Yes.

There seem to be two aspects to the issue. First, you are afraid that public authorities might provide a less good service to disabled people because the system will be difficult and cost more and, as a result, the information will not be presented satisfactorily. Secondly, you are concerned that your members will be charged more because the additional technology required to provide the information to someone with a disability will put the cost over the higher level. Is that right?

Yes. Arguably, that is discrimination and the case could therefore be taken to court. It all depends on the definition of a reasonable adjustment. The council cannot pass on the cost of a reasonable adjustment—as opposed to the cost of a more than reasonable adjustment. However, instead of getting into such an argument, we think that it is clearer and safer to include in the bill the stipulation that such costs will not be charged.

Presumably if I am a disabled person and ask for some information, someone has to spend X hours researching the matter. However, that would be the same whether I was a very fit genius, a disabled person or whatever. Whereas a non-disabled person would simply be given a piece of paper with all the required information, a disabled person might need something more. I imagine that that additional cost would have to be disallowed in the charges.

Indeed, yes. Under the Disability Discrimination Act 1995, it would be separated out.

And you think that that stipulation could be included in the bill.

Yes.

It seems a good idea if we can do it.

Perhaps it might be better to deal with that point in the codes of practice. I do not like cluttered bills in which little details like that are tweaked. Local authorities' codes of practice on this, that and the other could also include guidelines on what is and is not chargeable. If someone with a disability required something to be translated into Braille, the commissioner's guidance could specify that the translation costs should not be charged to the account. Might not that deal with the issue better?

It would be better to have both. Section 11 could contain literally half a sentence on the matter, which could then be expanded in the codes of practice. We believe that it would be more useful and convey a stronger message if the provision were in the bill in a short form.

My understanding is that if the codes of practice are issued by the commissioner—who will also educate on their purpose, so there will be a dialogue—they will have legal standing. Because the provisions of the bill will be phased in over a period of years, it will be years before it is implemented in full. However, I understand that it will be an offence for a public authority to be in breach of the codes of practice.

I am just suggesting that it would be better not to clutter the bill with such details as charging and fees. What is and is not chargeable should be in the codes of practice. Someone with a disability should not be discriminated against by being charged extra for their inquiry because of their disability.

What we would like to see in the bill is not cluttered detail, but an important statement, if you like, with the detail to follow in the codes of practice. The legislation should state strongly the principle that disabled people cannot be discriminated against by being charged that extra cost.

Do we have any further questions?

No. I think that that has covered the matter well.

I am sorry that the session has been brief.

I want to add to what Lynn Welsh said. We in the Disability Rights Commission want all the mechanisms that are deployed, including the bill, the codes of practice and regulations and guidance, to ensure that access to information for disabled people is fair and equitable. That could cover the publication schemes and so on. We want to use all the available mechanisms—not just the bill, but the guidance, the codes of practice and best practice. The commissioner could promote good practice in the publication schemes, with model publication schemes and so on.

What you are saying is that whenever the act is launched, with guidelines on how the public can use it, special attention should be paid to how disabled people can access information and to their rights in respect of what they should and should not be charged for.

Absolutely. There is also a duty under section 15 to provide advice and assistance. We want to ensure that that includes the needs of disabled people.

The bill provides an excellent opportunity, with the publication schemes and the codes of practice, for monitoring over time of equal opportunities and access for disabled people. Those issues could be looked at later and potentially reported on by the information commissioner. We could see over time what sort of progress was being made. Therefore, there is real potential in that respect as well.

We do not have amendments from the Executive. We could certainly consider any amendments that we might receive from you at stage 2 if you felt then that the Executive had not taken your evidence into account.

Thank you very much. I am sorry that the meeting has run on so late and that you had such a wait.

Thank you.

Meeting closed at 16:37.