Official Report 318KB pdf
We are taking evidence on the general principles of the Freedom of Information (Scotland) Bill. Our witnesses are: Frank Johnstone, who is the convener of the Law Society of Scotland privacy law committee; David Mallon, who is also a member of that committee; and Anne Keenan, who is deputy director of law reform at the Law Society of Scotland. I welcome them to the committee.
I am conscious of how much work is before the committee this morning. However, I want to make a brief comment, if I may.
I am sorry. I understood that you did not want to. However, while members gather their thoughts, that will not be a problem.
I am a solicitor in private practice. On my right is David Mallon, who is also a solicitor in private practice, and on my left is Anne Keenan. The society genuinely welcomes the Freedom of Information (Scotland) Bill and regards it as a positive step towards promoting a more open and accountable system of government. Our written submission is before committee members and we are happy to supplement its comments.
I have a point about aspects of the proposed commissioner. Your written evidence suggests that the provisions in section 45
It is one of our concerns. We think that the information commissioner will have strong powers and we welcome that aspect of the bill. Where appropriate, he or she will have quite incursive powers, if they are necessary.
I want to explore the general system of punishment, if that is the right word. If a bolshie public authority consistently fails to do its duty on this issue, nothing seems to happen to it. Why should it do its duty? There is no punishment. In most areas of life, if someone does something wrong, there is some kind of punishment. Under the bill, there is no punishment at all, other than the possibility of naming and shaming. Is that why you are concerned—because you are not even allowed to name and shame?
Yes. That is an interesting question, as it deals with the issue of sanctions under the bill. The answer depends on how one perceives that a freedom of information regime will develop in Scotland. The issue is whether people will do what they should do or whether they will do it because they will be punished if they do not.
It seems that you share the concerns of various people that a future and less enlightened Government than the current one might misuse ministerial certificates. Would you elaborate on that?
There is a concern that that might happen. When the issue arises, it is frequently said that the procedure will seldom be used in practice and will never be relied on. In that case, why is it there? We think that it should be ring-fenced. We think that it is important that care is taken about the provision, to ensure that it does not undermine the integrity of the freedom of information regime that we are hoping to create in Scotland.
You will be aware that, in response to the draft bill, the Executive has confirmed that it will give further consideration to how the fees would be structured. What are your views on how the fees could be structured?
Our submission expresses our concern that parties in Scotland should not be disfranchised from the rights created by the bill. If the financial limits are unduly high, a right with no remedy is no right at all. It is important that the rights created under the bill can be translated into effective remedies. The rights are only one step. If people cannot afford to translate the rights under the bill into an effective remedy, the bill is meaningless, so the costing is important. Our submission does not make detailed proposals, but we have flagged up the issue as the kernel of the whole system's integrity.
This is a question that has just crossed my mind and I should probably not ask it, but would legal aid be available for such inquiries under advice and assistance? I think that the test would be a matter of Scots law and public interest.
It is a while since I have done advice and assistance, but my first reaction is that legal aid probably would be available. The inquiry would be a matter of Scots law and something for which people may require the assistance of a solicitor. I expect that the Scottish Legal Aid Board will have a view on that, which might be contrary to my suggestion.
It might be useful to write to SLAB.
It might well be.
That might deal to some extent with Paul Martin's question about fees.
It would be interesting to see how the issue interfaces with section 15, which places an obligation on authorities to assist applicants and prospective applicants in exercising their rights.
Could you develop that point?
I think that it is section 15 that places an obligation on authorities to assist applicants and prospective applicants in relation to making requests.
Do you think that that would be an obligation on the board?
No, I mean that it would be an obligation on public authorities. It is not ideal that legal aid would not be available. However, if legal aid were not available, there should be a party to help applicants.
I did not quite follow that. It may be too early in the morning. I am trying to see how that develops the point about whether advice and assistance would be available.
What I am saying is that section 15 imposes an obligation on an authority to provide advice and assistance. I accept the fact that that is separate from the issue of legal advice and assistance.
Right. I understood that distinction. I thought that the section you referred to might strengthen the argument that advice and assistance should be funded by the board.
The question of public interest arises in many areas and the definition can depend on which area one is dealing with. However, it is a question that is regularly addressed by courts, so there is a lot of jurisprudence on it. If one wanted to apply public interest tests on a daily basis, the lack of a clear definition in the bill might give rise to difficulties. I suggest that it should be dealt with in the code of practice. Guidance for public authorities would certainly be helpful. I can see that there might be difficulties in applying a public interest test where public interest is not defined.
Previous evidence seems to suggest that the code of practice is central to the bill's implementation. At stage 2, we ought to look at the bill with at least some draft code of practice before us. What are your views on that?
The privacy law committee is of the view that the codes of practice will be essential in assisting authorities to identify the extent of their obligations and the obligations themselves. If those codes of practice are made available sooner rather than later, that would be helpful. However, having the codes of practice available is only one aspect of assisting authorities to comply with the obligations. It is essential that funding is available to them to provide training and facilitate compliance.
Yes. I think that one of the papers that we received in evidence from some police authority—I forget which—says that £100,000 a year is the guesstimate for training and facilitation. We are not aware of the figures and no one really knows what the cost to local authorities will be. Are you concerned that those obligations may not be properly financed?
The concern is that, if the meeting of authorities' obligations is not adequately financed, the principles and goals of the bill will not be fulfilled. At this stage, asking what the figures should be is like asking how long a piece of string is. The Law Society is concerned that, in the absence of adequate funding, there will be a problem in meeting the goals of the bill.
I asked a question at our previous meeting about charging. I gave the example of property inquiry certificates, which used to be free. As we all know, those certificates are required to be produced when one is purchasing a house. Now they are—perhaps this is unfair—a bit of a money-making exercise for some local authorities. Are you concerned that further charging may again turn into a method of generating income for local authorities?
We would be concerned if the bill was hijacked and turned into a money-making machine. We must accept that expenses will be incurred by authorities in dealing with responses under the bill and it is important that authorities are adequately resourced to deal with those expenses. If they are not, they may try to raise funds by attaching costs in other areas.
If no other members want to ask questions, I shall push on. I want to ask about vexatious applications. We know all about vexatious litigants. Concerns have been raised that the bill provides no definition of vexatious. Would you want that definition in the codes of practice, or would you leave it to case law?
That is a difficult issue. I understand why the bill provides for vexatious requesters to be disfranchised. However, there would be some difficulty if an authority sought to draw an unreasonable conclusion to that effect, although its decision would be subject to internal review and review by the information commissioner. Guidance on that issue could be given in the codes of practice; I have no doubt that the commissioner will issue such guidance.
The bill sets out exemptions in relation to confidential material. Can you give us an example of what would be considered a confidential matter in respect of your own dealings?
We are concerned about the lack of a definition of confidentiality in the bill, especially in relation to section 36. The explanatory notes in the policy memorandum say that the section deals with legal professional privilege. However, we are concerned that the drafting of the section has not been considered carefully enough. It seems to deal with wider issues of confidentiality and is not restricted to the narrow aspect of legal professional privilege.
If information was exchanged between the Law Society and an individual solicitor, in respect of a complaint that had been made by a user of the solicitor's firm, would that information be termed confidential?
It is an interesting question. Can you expand on it a little?
If a complaint against a firm of solicitors was raised with the Law Society and the firm responded to that complaint, would the information be deemed confidential if someone asked for access to it?
That would not fall within professional privilege, as I understand the reference in the bill. Legal professional privilege is a particular type of confidentiality that is generally used in forthcoming legal proceedings. If a person instructs a solicitor and gives them information about their defence or a civil action, that would usually be regarded as privileged material. Confidentiality is wider than that. In the example that you gave, the information would not be regarded as privileged according to my understanding of the Executive's intention in the bill.
Some people have spoken about their concern that the bill treats what one might call a campaign with some suspicion—almost as vexatious. Would you like to comment on that? There seems to be an idea that if, for example, one person writes in with a complaint about the carpet, that is okay, but if 10 people do so it becomes a campaign and so you would ignore all complaints about carpets. That seems odd.
There is genuine concern that, because a number of people feel strongly about a matter, people might be disfranchised from exercising their rights under the bill. I agree that that should cause concern.
You have not commented on section 33, which deals with commercial interests and the economy. The section deals with class exemptions and states:
The difference between a trade secret and something that is commercially sensitive could perhaps be clarified in guidance or in the code. Sometimes there might be confusion about which is which, although a recipe or some piece of know-how akin to a patent would clearly be a trade secret.
We said that a Borders firm's recipe for black bun might be a trade secret.
I have never tried black bun. Arguably that would be a trade secret. Guidance would be helpful on that point.
It would also be commercially sensitive.
A trade secret is definitely commercially sensitive, but something that is commercially sensitive might not be a trade secret.
I follow you. Are there any other comments? The bill has been presented to us as being robust and our duty is to test whether that robustness is simply on the surface.
The issue is worth focusing on to a certain extent. In other freedom of information regimes, a significant number of requests are from commercial entities seeking information that would be of economic advantage to them. Beyond that, I do not wish to comment at this stage.
The local authorities gave us their view, which was that if a contract was put out to an agency and, in the interests of openness and transparency, there was an inquiry to find out the cost of the contract, in the interests of commercial confidentiality and in the face of genuine public, democratic interest, that information might not be forthcoming. Is that right? As so much local authority business is contracted out to private companies, that might be a problem.
That is a difficult question. At a general level, there are commercial interests that should be protected from an application for disclosure. It is a balancing act. That is the difficulty in drafting the bill. Commercial interests are not necessarily something that should be disregarded.
I have a final question about that. One of the pieces of evidence that we took last week suggested that other authorities should be included in the list in schedule 1 of authorities that are classified as Scottish public authorities. You may have had the opportunity to read the Official Report of last week's meeting. What is your view of that suggestion? What other public authorities might be included? Should the list be left more open, because designating all the authorities could be a huge problem? An agency might be contracted to a local authority only temporarily, and so should not be on the list after the contract has ended. What is your solution to that?
An agency that is doing work of a public nature for a public authority will be caught by the provisions of the bill. The agency will be designated as a public authority in so far as the services that it provides are of a public nature. The designation system creates for authorities a degree of certainty about whether they are caught by the provisions of the bill. The list will be extended or shortened in due course.
Is that a matter for the code rather than for the bill?
The commissioner may be helpful in identifying persons who should have been designated and who have not been. I do not think that we can expect the list to be absolutely comprehensive at the moment; it will develop.
It has been indicated that, in other countries that have introduced freedom of information legislation, one of the greatest barriers to the effectiveness of the legislation was changing the culture and the regime of secrecy that pervades many public bodies. I welcome your views on how that could be tackled as part of the process of making the legislation effective.
That is an interesting question. Changing the culture will be absolutely critical to making the bill work for the citizens of Scotland. If we are honest, there is not huge openness in certain matters, particularly in Scotland. Perhaps I speak only from my own experience, but we are brought up to believe that a problem shared is a problem doubled. That uniquely Scottish approach needs to be changed. At the heart of that will be adequate funding for training for authorities that are caught by the bill, useful and clear guidance in the codes and a proactive commissioner who is under an obligation to disseminate information about the final legislation.
Is training the responsibility of individual authorities or would the Scottish Executive have to provide a lead and additional funding?
The committee has not considered that matter other than to identify the importance of training. The committee has not considered the funding of that training.
Before we conclude, I have a final question. You stated that it is important to monitor
That is right. No doubt members of the Scottish Parliament will monitor the role as problems arise—we must expect that they will. The strong points of the legislation will be recognised in practice and, where weaknesses are identified, I hope that the Parliament will react.
So you are leaving it to us?
It would be presumptuous of me to take on that responsibility for the Law Society.
As there are no further questions, I thank the witnesses for attending. Your evidence was very helpful.
Thank you. I will make a short opening statement to set out the context.
Considerable concern has been expressed about the charging regime that is proposed in the draft bill. I understand that, on the basis of the consultation exercise, the Scottish Executive is to reconsider the regime. Will you detail your concerns about the proposed charging regime?
I will make some general comments and then ask Sarah O'Neill to come in on the specifics.
At the moment, one of our problems is that we do not know what the Executive's plans are. All we can go on is what was proposed in the draft bill. We were concerned about the proposed charging regime, as it could lead to someone paying a lot more money in Scotland than they would elsewhere in the UK.
As you may have heard in other evidence, I am worried that financial barriers to exercising rights under the bill may undermine the bill's effectiveness. You talked about the possibility of exempting people on low incomes from paying fees. How would such a system operate? For example, would gateway benefits be identified, so that people on income support were automatically exempted from paying costs?
That is one system of exemption. We have not gone into the detail of how a system might be implemented, but I imagine that the basis could be the same as for eligibility for legal aid advice and assistance, for which some benefits automatically passport people, and for which people who do not claim benefits but who are on low incomes may still be eligible.
If I have understood, you are talking about an eligibility test for being charged a fee, not an eligibility test for applying for advice and assistance, which would mean that the Scottish Legal Aid Board paid the fee. Is that correct?
Yes. I just used legal aid as an example.
The example was interesting.
The Scottish Consumer Council is one of the organisations that have expressed enthusiasm for a purpose clause. As I understand it, the Executive uses two arguments against that. The first is that such a clause would be vague, which is bad in a bill, as bills should be precise. The second is that such a clause might unintentionally restrict the bill, because if the bill does not have a purpose clause, the world is your oyster, so to speak. What do you think of those arguments in response to your understandable desire for a purpose clause?
I ask Martyn Evans to answer that question, as he has covered that matter a fair bit before.
We heard and read the Executive's evidence to the committee to the effect that a purpose clause would do more harm than good. The argument of which we hope to convince the committee is that purpose clauses show which of two or more competing values should be uppermost when a decision is made.
Unlike the Executive, we consider a purpose clause to be more than just a legal instrument. We think that the purpose clause sets the tone and spirit of the legislation and encourages the people who administer the legislation to view it positively instead of as a chore that they have to carry out. Furthermore, if a case should go to court, the clause would encourage the commissioner and judges to lean towards disclosure. Perhaps more important, it might have the same effect on those in public authorities who will administer the legislation.
Your organisation understands campaigning. As I understand it, the bill does not; indeed, it seems to suggest that if a number of people write in for the same information, it is all a wicked plot and so they should not get it. How can we protect public authorities from unreasonable requests and lots of expense and still ensure that information is given to people who genuinely share an enthusiasm for a particular issue?
Having been in different roles in other environments and public authorities, I think that campaigns are often regarded negatively by organisations. Often they identify a single problem that is recognised by many different people for whom those organisations provide services. Campaigns are useful in that they help to define problems that are clearly vexatious, although we appreciate the Law Society of Scotland's comments about the difficulty of such a definition. Authorities must be persuaded that such campaigns might be emphasising much larger problems of which they are not fully aware. In many cases, we can turn a campaign round to give it a positive aspect instead of a negative one.
It should not mean any more work for public authorities if people who are mounting a campaign all ask for the same information. They could publish the information on their websites or send the same letter to anyone who asks. The task would not be particularly onerous. Indeed, a representative from a public authority made that point at a conference I recently attended. He did not see it as a particular problem.
You said that a purpose clause would set a tone in the bill that would tip the balance towards the presumption of disclosure. If a case came before the commissioner in which access to information was denied on the basis of public interest, what test of evidence would he or she apply? In civil law, the test is the balance of probability, whereas in criminal law the test centres on proof beyond reasonable doubt. Which of those tests should the commissioner apply?
I have not really thought about that question, but my initial reaction is that the commissioner should apply the civil test of the balance of probability instead of the more demanding criminal law test. We feel that there should be a presumption of disclosure, unless it is more in the public interest not to disclose.
But that test is not so robust. The commissioner could simply say that, given the balance of probability, they would not be inclined to disclose. The other test would be stronger. I am quite surprised by that response, although you are quite entitled to make it.
If you will pardon me, I think that I was getting a bit confused there. I think I should have said that we would prefer the criminal law evidence test.
Sorry?
I said that I think that we would prefer the beyond reasonable doubt test.
I was wondering about that. I do not want to be leading evidence for the Scottish Consumer Council. For the sake of clarity, do you want the commissioner to have a fairly robust role right across the spectrum?
Absolutely.
Will you elaborate on your concerns about the procedures set out in the bill that specify that information that is sought should be confirmed in writing?
That issue does not arise only in this bill but in other aspects of provision of information. Insisting on a written format for information will rule out certain people. We represent people who are disadvantaged in the widest sense, including those with poor literacy skills, special needs or difficulties with the English language.
We strongly support the evidence that the Disability Rights Commission gave to the committee about people who may be significantly disadvantaged. Those who have difficulty in reading and writing are a more difficult group for us. I regret to say that the issue of functional illiteracy is significant in Scotland and in the UK as a whole—it affects between 16 and 30 per cent of people. We recognise the difficulties in that area and understand the Executive's arguments that the matter could be dealt with under regulation and that assistance could be given. However, there should be more consideration of the issue and there could be greater clarity on the duty to assist an applicant who may not be able to put their request in writing.
There could be concerns about telephone requests involving sensitive information—if an application was made to a health board for sensitive medical information, for example. Are you concerned that such information could be given over the telephone? Regulations would have to be in place to prevent that.
To wear my health service hat, as chairman of the Common Services Agency, I hold a lot of information. You are absolutely right. We suggest that there could be requests by telephone, but that there should not be responses by telephone. A request may be made by telephone and may simply be formatted by the person who receives the request, which is what currently happens. A response would then be sent to the individual by some means simply to confirm the information that they want. The request could then be processed in the normal written form or by another form of communication to protect sensitive information.
You mentioned that applications could be made in person. Will you elaborate on the procedures that would be followed? Are you talking about setting aside areas within authorities where people could apply in person with a proforma letter, perhaps?
In some respects, we are reflecting what is already good practice in some authorities, where people are able to walk through the front door of council chambers or offices and request information or something else at the reception area. Someone will help them to write down the request and then will process it as they would have done through channels such as the telephone. That is good practice.
It is important that consumers know their rights. Even now, many do not know about the simplest things.
I do not know whether I know all my rights.
Likewise. People do not know what to do about shoddy goods, for example. How will people become aware of their rights under the bill? The proposals are hardly going to be the talk of the steamie. If they are not, how will they be made the talk of somewhere else so that the public out there can access their rights? I mean ordinary people—we do not want only commercial interests or interest groups to know their rights.
I will ask Martyn Evans to make some comment. Other generalities apply in other sectors.
I agree that a key issue is whether those rights will be used. The three pieces of legislation—the Freedom of Information Act 2000, the Freedom of Information (Scotland) Bill and the Data Protection Act 1998—add to the complexity of the matter. We envisage that the commissioner will have a key role in promoting rights and that there should be a duty on the public authorities to promote them. That goes beyond what is in the bill. It goes back to the questions about culture and how to promote rights.
As Martyn Evans just mentioned, the commissioner will have a duty to promote awareness of the act. We hope that he or she will have sufficient resources to do that properly. That might involve providing information booklets to people, sending leaflets to every household and television and newspaper advertising campaigns.
You mention a freedom of information officer. Who he? Who she?
Every public authority should be required to designate someone a freedom of information officer. That does not necessarily mean that the authorities would need to employ a new person for that role. An existing employee could take it on. If someone senior needs to make a judgment about what information is given to people, the freedom of information officer needs to be reasonably senior to ensure that people are given the information that they require and are entitled to.
Should freedom of information officers also be part of the publicity engine?
They should. That too is a matter of culture change. A related culture change—public involvement in the health service—has been pushed by requiring primary care trusts to designate directors responsible for public involvement. They do not deliver the public involvement, but they have responsibility for it within the governance of the trusts.
We have already discussed the format for requests for information. The flip side of that is the accessibility of the format of the information that the applicant receives. That can equally apply to those who have difficulty in applying for information in the first place. Section 11 of the bill makes provision for the information to be provided in a form acceptable to the applicant. The potential exists for discrimination against groups such as those who are disabled. Should that section go further to ensure that there is no discrimination against people who have difficulty obtaining information and have to have it in a special format?
We are concerned about the wording of that part of the bill. It says that people can have information in their preferred format, but only where it is "reasonably practicable". Cost is explicitly mentioned as one of the factors for deciding what is reasonably practicable. We absolutely support what the Disability Rights Commission said to the committee last week about that. It should be made clear that the bill must not conflict with what the Disability Discrimination Act 1995 says on that point.
I was in the Standards Committee, which is why I arrived a little later than I would have wished.
I explained that.
I will ask two questions. I hope that they have not been asked. I have one on the ministerial veto and one on the Scottish information commissioner. The convener can rule me out of order if the questions have been touched on.
We understand the reasons for the ministerial veto. We welcome the fact that the restrictions in the Freedom of Information (Scotland) Bill are less wide-ranging than those in the UK Freedom of Information Act 2000, but we do not know whether they are sufficiently well-drafted for the veto not to be abused. That judgment is for the future. However, as we set out in our submission, there must be public scrutiny of the veto process. It is important that the fact that a veto has been exercised is made public. The certificate should be lodged with the information commissioner, and certificates should be held in a public register, so that there is a continuing record of what is done.
We are concerned that the sanctions in the bill are insufficient, particularly when a public authority persistently fails to comply with its duties under the bill. While the commissioner will have powers to take individual authorities to court, they can be exercised only in respect of a failure to comply with an information or enforcement notice. It is fairly straightforward when a request for information has been refused, but there is nothing in the bill that is strong enough to deal with an authority that, for example, consistently evades time limits. We hope that most authorities will comply with their duties under the bill, but there may be some that do not, and there are not enough measures in the bill to deal with that situation.
I add the rider that if codes of practice are not adhered to, within reason, throughout Scotland, we will end up with disparities between authorities. If we end up with a rogue authority that turns its back on requests for information and the information process, I suspect that Parliament will be concerned, because it is unlikely that that would happen in just one area of the authority's activity. It would reflect the culture in that organisation, so there would be problems in many areas. Overall, we must seek uniformity, where possible. I hope that the gap between what is regarded as the best practice and the worst practice will be narrowed substantially. I have faith that we can get there.
I follow on from ministerial certificates with class exemptions, which concern me. Some bits of the Freedom of Information (Scotland) Bill are quite robust, but other bits are quite flaccid and would deny access to information. In your submission you say:
We are concerned that, if there is a class exemption for information falling under a particular category, harmless information could be withheld without any need for the authority to give reasons. We are of the view that there should not be class exemptions in the bill.
Can you give an example of when a class exemption would catch something that was, even to the keenest eye, innocuous?
I will ask Sarah O'Neill to answer again, as she has worked so much in that area.
On the first question, I cannot think of an example off the top of my head.
Is that an absolute exemption? I am trying to recall whether it is an absolute or class exemption.
I believe that it is a class exemption but I am not sure.
So have I.
There was a point about ministerial certificates in section 52.
It was about ministerial certificates and the limited disclosure of reasons.
We have not played this very strongly in our submission to the committee. We believe that the provisions in the bill are better than those in the UK act.
My question was about comparative freedom of information regimes.
Yes. It must be compared to other regimes.
On some aspects of the bill, rather than taking a stand on an issue of principle we want to ensure that they are workable. Our emphasis varies. We want the bill to be workable.
The clerk has told me that it is an absolute exemption on court records. I thought that it was one of the absolute exemptions.
That sounds like the type of scenario when a time limit would be appropriate. Eventually, disclosure would not matter.
Commercial confidentiality is the obvious situation where sunset clauses might be appropriate. We have suggested that a particular event might trigger disclosure in a specific case. If no such event can be identified, there should be a two-year time limit for any exemption.
Who will decide on the mechanism for dealing with commercial interests? If the climate changes because of events, who will decide what information should be released or whether the time limit should be changed? Will the commissioner monitor that and how will it operate? I presume that a mechanism will exist by which people can reapply for information a year or two later, but should it be in the bill or in the codes of practice?
There should be a mechanism to inform applicants that they can reapply after one or two years or however long the period is. Ultimately, the decision on the time scale would be for the commissioner, but the obvious place to put the period would be in the codes of practice. However, as I said, we are concerned that the codes of practice will not be enforceable, which might mean that the reapplication period will be difficult to enforce in practice.
I wanted to find out whether the bill prohibits reapplying in a certain period of time because vexatious applicants who keep reapplying week after week might cause problems. I have not found a time limit for reapplication in the bill.
Section 14(2) states that repeated requests that are "identical or substantially similar" may be refused unless there is
Would it be up to the applicant to know when to reapply? Do you think there should be an obligation on local authorities and public bodies to intimate to the commissioner that circumstances have changed, or should it be up to the searcher for information?
The obligation should be put on the authority, although I am not sure how that would work in practice. It might be difficult, but I am sure that the difficulties are not insurmountable.
When people who receive legal aid have a change in financial circumstances, they are obliged to notify SLAB. Should the bill put an obligation on public bodies to notify the commissioner if the original circumstances of a case change?
That scenario is highly desirable. We must recognise that, at the moment—without the bill—authorities have different ideas on what is confidential. For instance, all national health service organisations are in theory the same, but they have different views on what should be discussed in public meetings and on what is commercial and confidential. Many have a broad view and require justification for discussing matters in private session, but others adopt the attitude that anything with a price tag should be discussed in private.
I think that the committee would like a synopsis of the divergence in practices in Scotland. We should consider the difficulties with practices. The information would be useful when we come to consider the codes of practice, if not before then.
We would be happy to do that.
As there are no further questions, I thank the witnesses for attending.
The stress should be on the second syllable.
I beg your pardon.
That is correct.
I must have said something to our witnesses.
Like a number of other groups that have written to the committee, you raise in your submission the issue of the ministerial power to veto decisions. Would you elaborate on that point? Is there a balance to be struck? Does the Government deserve a degree of protection, or should all information be open? Should ministers have no veto?
In our opinion, ministers should have no veto. The bill makes it look as if the executive branch of government is interfering with the judicial process, which is unacceptable in any democracy. If the First Minister or the Cabinet felt that it was necessary to take issue with any disclosure ordered by the information commissioner, they should do so through the court system, because that is what would apply to anyone else.
My next question is along the same lines. What are your views on class-based exemptions, as opposed to the other type of exemptions?
We are concerned that class-based exemptions have been proposed for what is supposed to be an open freedom of information regime. There is no place for class-based exemptions in such a regime. Any information should be subjected to the substantial-harm test, which is provided for in the bill. If it is sufficiently in the public interest not to disclose information, the substantial-harm test will be passed and the information will not be disclosed. There is no need for a class-based exemption.
Is there a bureaucratic argument that some things are so secret that they should not be open to challenge? Is it not the Government's thinking that, in order to demonstrate the public harm that could be done, it would have to give away secrets?
In that situation, people would consider whether to disclose information behind closed doors and whoever was involved in that exercise would be subject to confidentiality anyway. Therefore, that information would not be disclosed, so the alleged prejudice that disclosure would cause would not arise. On the other hand, if releasing that information would not cause prejudice, it should be in the public domain. That is what should happen under a proper freedom of information regime.
The cost of requesting information has been raised by a number of organisations in both written and oral evidence. I understand from your written evidence that you, too, have concerns about that. It has been proposed that people should be means-tested, which might mean that people would be exempt from charges if they were in receipt of certain benefits that act as gatekeepers. What changes would you like to make to the proposed charging system? Could that system act as a barrier to people who want to request information? Should certain categories of people be exempt from charges? How would that work?
We believe that putting a price on access to information could cause a barrier for individuals and organisations. If someone is on a low income and is trying to get information, even £50 is a lot to be asked to spend and whether they can afford £500—the top end of what is proposed as a possible cut-off—is another issue entirely. Even for an organisation that is seeking information, £500 is a lot of money. So yes, a way of allowing people or organisations on a low income to access information is needed. The Scottish Consumer Council's proposal for means testing would be one way of addressing that. I would be interested to hear more about its proposals.
On how the £500 is arrived at, the concern is that there will be variance between local authorities. Some local authorities will have good archive systems and will be able to retrieve information relatively quickly and at a limited cost, but it will cost much more to retrieve information from authorities that have poor archive systems. There is potential for variance throughout the country. If we do not have some sort of standard for setting costs throughout local authorities, we could have postcode provision of information. From what you have just said, I envisage that being a potential problem.
The problem with excluding means testing is that doing so would exclude a large section of the population. For example, asylum seekers are on a level with people on benefits but they would not make it through the benefits gateway. That would be an issue, because they have as much right to information as anyone else. There are other people in society in similar situations. Many members of one of the groups we work with, Gypsy/Travellers, are on very low incomes but will not take benefits. They, too, would not make it through the gateway. There is the potential for such discrimination to occur.
I have one question—
I think that you have already asked questions in this session. Have you?
No.
I am sorry.
It is only an exceedingly brief question. The bill refers to public interest, but includes no definition of it. Do you think that there should be such a definition?
We would like public interest to be defined in the bill, as several different public interests are defined elsewhere in legislation. It would be helpful to have the phrase defined, along with other phrases that are used, such as breach of confidence. That is a difficult charge to prove in court, and it is difficult to test. It would help if other provisions were better explained in the bill.
Would guidance for the interpretation of public interest be more properly placed in the codes of practice?
Not as it stands, as the codes of practice are not legally binding. Like the representatives of the Scottish Consumer Council and other witnesses, we believe that the codes should be legally binding. If the codes were legally binding, we would be happy for the definitions to be included in them; otherwise, the definitions must be in the legislation.
Do you believe that the bill is compatible with European convention on human rights requirements?
Yes. It is novel for us to say that we find the bill compatible. The exception to that relates to accessibility issues—which have been quite well covered by other people—but even those would not constitute breaches of the ECHR, as they are just not good practice. The bill complies with the ECHR requirements, which is pleasing to see. It is quite a good bill.
Thank you very much.
We will have a short adjournment until a quarter past 11, when we will take evidence from the National Union of Journalists.
Meeting adjourned.
On resuming—
I introduce to the committee Paul Holleran, who is the Scotland organiser for the National Union of Journalists; Francis Shennan, who is chair of the Scottish council of the NUJ, and David Shayler, who is a member of the NUJ. I declare an interest: I am also a member of the NUJ, but very much at arm's length.
From the beginning, the National Union of Journalists has congratulated the Scottish Executive on its serious and honest attempt to open up Government to scrutiny. However, the Scottish council of the NUJ has become increasingly concerned about the restrictive effects of certain provisions in the Freedom of Information (Scotland) Bill—to the extent that we worry that it might be worse than no bill at all. The bill would cloak the Executive in an aura of openness while not increasing press—and therefore public—access to information that is of real relevance and importance.
Before we get into examples, I must caution you. As I am sure you are aware, under the Scotland Act 1998, any statements that are made during proceedings of the Parliament—such as this meeting—are absolutely privileged. You are protected. I have no idea what is coming next, but it would be unfortunate, to say the least, if we allowed things to be said that might be challengeable as defamatory but that would be privileged because these are parliamentary proceedings. I also caution you that what you say has the status of being said under oath.
We have major concerns about the role of the First Minister. The NUJ was heavily involved in the development of the Freedom of Information Act 1997 in the Republic of Ireland. We argued successfully that no Taoiseach should have a veto and that the commissioner for freedom of information should act as an ombudsman.
I hear what you are saying, but at the moment that story is hearsay. I presume that we would need to ask the editor of the paper whether what you have said is correct.
Not necessarily. The issue is that the journalist who wrote the story was faced with a problem. I was involved in representing her.
Let me consider the matter for a moment.
As a journalist, I would not present this information if I had not corroborated my story. Because I am a trade union official, I was contacted by the journalist who wrote the story. She had been told that all her copy would in future be run past the local MSP: her copy would possibly be vetted by Mr McConnell. She came to me and said that that would be totally unacceptable and asked what the union's position was. We invoked the grievance procedure and said that we wanted the issue to be taken to the top of the company. We said that we wanted the situation stopped and turned around.
I hear what you are saying, but we need to tie in your evidence with the Freedom of Information (Scotland) Bill. Will you make a direct connection between the incident that you have mentioned and the bill? How does the incident tie in with ministerial certificates?
It ties in with political interference. People who try to get information into the public arena are being stopped or told that their copy must be vetted. The incident reflects our concern about political interference and the suppression of information from journalists who seek information to publish stories. We are concerned that that level of secrecy and interference exists even for the blandest of stories in which somebody is trying to inform the public. What I have said ties in clearly with journalists' right to access information through the Freedom of Information (Scotland) Bill. It is totally unacceptable that the Executive or the First Minister should have the right to interfere at that stage.
Are you saying that removal of the ministerial veto and making the commissioner's role robust would protect people from what you allege happened?
I am not so naive that I think that would stop political interference or prevent people from raising questions with the press. However, where that goes on, a more independent approach to the situation would be better than politicians of whatever hue having the final veto. The answer to your question is yes.
Before we move on, do the other witnesses want to make a statement? Will Mr Shayler make a statement on this issue as well as Mr Holleran?
We invited Mr Shayler to the committee to show the other extreme, which is the nightmare scenario in which an atmosphere in which no one is accountable leads to greater harm than the threat of openness. David Shayler can either make a brief statement or he can respond to questions.
We will come to that when we have dealt with this issue; we are talking about how the bill might not penetrate the climate of secrecy, which was mentioned in previous evidence.
I want to be clear about the example that you gave about the ministerial veto. At the moment, the bill gives the First Minister the right to veto the provision of information and provides no right of appeal against that. Is it your view that, unless the ministerial veto is removed or some type of appeals process is put in place by which the veto can be challenged, the bill will leave journalists open to political interference on issues that are politically sensitive for the First Minister or his ministerial colleagues?
Yes. We feel that the ultimate court of appeal should be the courts. The Court of Session would be ideal for appeals. We feel not only that section 52(2) creates a potential for interference, but that it institutionalises acceptance that the final court of appeal is politicians and not the courts.
Ultimately, if there is going to be any mechanism, there should still be a ministerial right to veto the publication of information. It is then for the party who wants the information to appeal against the veto, but that appeal should be through a court of law.
We propose that, if ministers do not trust the Scottish information commissioner, they should have the same rights as other people to appeal to the Court of Session against information being released. Cases should be heard and tested in court. Harm test and class exemptions already exist and now we will have section 52 of the bill. That is not a belt-and-braces approach—it is a belt, braces and straitjacket approach.
Do you describe section 52(2) as a straitjacket?
It could be, in certain circumstances. The explanatory document and the policy memorandum emphasise that the legislation can be used only in limited circumstances, but that is not expressed in the bill. Even if section 52 were not used often, its existence creates an atmosphere of threat.
How would you feel if a clear code of practice was set up around how and when the ministerial veto could be used?
We are generally sceptical about codes of practice. If legislation is being enacted, why not include the code in the legislation? Why not give the ultimate test to the court, as we do in almost every other area of life?
We could create a balanced approach because—as you are aware—following the submission of the certificate, there is a legal requirement for a copy of that certificate to be brought before the Parliament. That is in section 52(3), which says that the First Minister must,
It is significant that other parts of the bill lay down the time scale in which public bodies must respond. However, section 52(3) says "as soon as practicable". There is no deadline.
To be fair, I want to confirm that we are talking about a veil of secrecy. However, it is clear that a copy of the certificate would be laid before the Parliament and that the person to whom the certificate related would be told why the application was made in the first place.
Would the certificate be laid before Parliament after the event?
Yes, but the point I am making is that although you are talking about secrecy, the certificate would be brought before the Parliament. I take it that the Parliament would have the opportunity to debate the issue. There would also be an opportunity for the person to whom the certificate related to be advised of the reason why the application was sought in the first place. I do not see that as a veil of secrecy.
You must realise that from a journalist's point of view, time is important; many stories are time sensitive. It is established practice to delay a story to reduce its impact.
We are looking to remove obstacles. We see the ministerial certificate as being an obstacle and a process that will take a long time to go through. We think that there should be fewer obstacles, in particular for investigative reporters and journalists who must meet deadlines. We see such ministerial certificates as interference. There needs to be a smoother process. The matter is not merely about holding on to information, but about releasing it within a certain time scale.
Section 52 says that a copy of the certificate is to be laid before Parliament and that the party who applied for information is to be given notice and reasons for the opinion that has been formed. However, the notice and reasons need not be given if that would disclose the information. I make no comment other than to say that that would be a constrained declaration.
Much has been made of the public interest test, but public interest is not defined in the bill. Is that acceptable or should public interest be properly defined?
There should be more detail on what would automatically be covered by the public interest. The public interest test is to be applied by the body that holds the information. We would prefer some sort of independent review.
If I understood you correctly, you are against ministerial certificates in principle. Section 35(1)(a) says that information would be exempt if it is likely substantially to prejudice
Yes. We think that the Scottish information commissioner would be able to see whether that was the case—if the right person is appointed. The right person would be somebody who has had the requisite training and who understands the issues that are involved. The writing in of a role for ministerial action at this point would demean ministers. The idea behind the bill is that there should be a freedom of information regime and an independent Scottish information commissioner who will oversee that regime. Such a provision demeans ministers' confidence in appointing somebody to that post.
We also argue that the commissioner needs sufficient resources and legal support.
Am I right to say that you would still take that position, even if the Lord Advocate knew a great deal more about the alleged crimes that he was investigating than the commissioner could possibly know?
The Lord Advocate has separate powers, which are independent of the First Minister in this case. The Lord Advocate, because of his special role, has the last word—the First Minister's certificate should not affect him at all.
If the commissioner gave a view that was contrary to the view of the Lord Advocate, would not that information become public before the Lord Advocate could—
If there were a dispute, why should the appeal not go to the Court of Session? If there were confidential information that would cause irreversible harm, it could be heard in camera.
If that information could be prejudicial to a criminal investigation and an appeal were made to the Court of Session, would not that information inevitably become public and thereby prejudice the Lord Advocate's investigation?
If an appeal were made, the information would become public when it was heard in court. However, there already exists the protection that is provided by the Contempt of Court Act 1981 and the legislation that covers miscarriages of justice. Furthermore, the courts have the power to order that information that could prejudice a trial must not be published.
Have you any views about monitoring the effectiveness of the legislation and the commissioner?
It would be important to monitor how effectively the act was used. The press might not initially be the main users of the act, partly because of cost and partly because of procedure. We would want to ensure that the monitoring process was not used to reveal the interests of a journalist in a particular line of inquiry, which could then be pre-empted by press releases or press conferences.
Mr Shayler, bearing in mind the warning that the convener issued, what lessons would you draw from your experience that might help us to improve the Freedom of Information (Scotland) Bill?
People are talking about all the criminal charges against me, but I must point out that I am charged only with offences relating to information that appeared in The Mail on Sunday and the taking of documents. I have been charged with nothing in relation to subsequent allegations that I made about the Gaddafi plot, the Israeli embassy bombing, the Bishopsgate bombing and so on. Therefore, information about them is not sub judice.
I apologise. If you have not been charged with anything—
I have been charged with a small set of offences relating to information that appeared in The Mail on Sunday on 24 August 1997. I will gladly not talk about those.
Many of us are aware of your situation. However, are you aware of the Freedom of Information (Scotland) Bill, which is supposed to be more robust than the UK Freedom of Information Act 2000? Could you address Donald Gorrie's comments in the light of that? How would the bill assist the cultural framework that you believe exists? Would the bill be of assistance, or would it be insufficient? It would be useful if you could deal with those questions.
The test is one of harm. Under article 10 of the European convention on human rights, which has been incorporated into British law, the right to receive information, as well as the right to express information, can be restrained on the grounds of national security, in the interests of preventing crime and so on. However, what cannot be done is to restrain information in the national interest. The national interest is not the same thing as national security.
I am sorry, but I thought that no litigation was pending. Do you have an appeal pending?
No. We have gone to a pre-trial hearing. In the pre-trial hearing we do not talk about evidence, we only ever talk about legal arguments.
I know what a pre-trial hearing is.
But we do not normally have pre-trial hearings in criminal trials. Normally, there is a criminal trial and somebody is convicted, then they appeal. In my case, I have to go through the legal process of pre-trial hearings before a criminal case in front of a jury.
But charges are pending, and an appeal to the House of Lords is pending.
Yes, on what is admissible evidence in the case.
We will be cautious, because we are unclear whether litigation is in train.
This has been reported in the press. The judge—
Yes, but I am thinking of the standing orders of the Parliament. I am not trying to be difficult, Mr Shayler. I am trying to remain within the strictures of the standing orders, which, as convener, I am compelled to do. The committee is quite content with the lines that you have taken on the generalities of your experience. Could you extend your specifics into general comments and apply them to the Freedom of Information (Scotland) Bill? We seek a robust bill. We are operating in a Scottish context, which I hope is slightly different from Westminster. I would be more content if you could keep tying in to the generalities.
This is part of the problem. This is what happens, ironically, when there is no freedom of information. I do not know what specifics I can go into about various matters, but I will discuss the general arguments about national security versus the national interest.
Yes. That was an interesting line.
National security is damaged only when information gets into the hands of the people who are the targets, for example. Even if the IRA were being investigated, and a terrorist group that did not like the IRA came into possession of that information, that would not necessarily damage national security, because the IRA still would not know about it. The Government argued that, if I spoke to journalists, that would damage national security. However, unless those journalists spoke to members of the IRA or the Libyan intelligence services, national security would not be damaged.
The three witnesses might not be aware of the contents of the Freedom of Information (Scotland) Bill, but I want them to consider a concern that I have about section 31 on "National security and defence".
One of our arguments against class exemptions is that we have an adequate harm test. I do not believe that a properly appointed Scottish information commissioner would not recognise that particular information is harmful or potentially harmful. If the commissioner has the proper resources, he should be able to call on expert advice from, for example, members or former members of the armed forces.
The problem with national security is that it can become an ever-lengthening piece of string. If the Executive wants to withhold information, it can use national security to suit its own ends. Recently—within the past month or so—MI5 disclosed the first personal file that it had ever made. That was file PF1, on someone called Éamon de Valera. However, MI5 still claims that files PF2 and PF3, on Lenin and Trotsky, cannot be released to the general public.
Are you making the point that, in your view, there is paranoia in Government establishments about national security? We have received evidence on what someone has termed a sunset clause. There may be times when an application for information is mistimed. It is rather like a bank arrestment, which has to be served at the right time if the money is to be caught. The timing of an application may have national security implications. You have given evidence that dangers to national security could be pre-empted by obtaining information, such as that relating to armed forces radios that you mentioned.
The procedure is that applications are made to the public body that holds the information that is sought. If defence information were sought, the application would be made to the Ministry of Defence or to units within it. If the ministry felt that releasing the information would threaten national security, the application would be refused. If an appeal were made to the Scottish information commissioner, he or she could investigate. The first step would surely be to approach for an explanation the department that had turned down the application. If that department were unable to justify its decision to a properly appointed, independent Scottish information commissioner, that would mean that the wrong person had been appointed to the job, that the department was unable to communicate effectively with him or her, or that there was really no harm.
I envisage a situation in which the commissioner is convinced that information relates to national security or defence and that the information is too sensitive, for reasons that are not in the public domain and that even skilled journalists may not have sniffed out, to release at that point. Should the bill or the codes of practice, to which we have not yet referred, include a provision for the commissioner to be notified if the situation changes? I believe in scrutiny, but there has to be an element of trust in Government. Should authorities be obliged at some point to inform the commissioner if the situation changes and a certificate can be withdrawn?
Secrets degrade with time. We have an enormous problem in this country with information that was gathered before the security services put it on a legal footing. Until then, there was no framework of law to govern what the security services were doing in terms of invading people's privacy.
I think that you are saying that there should be something in the bill that would compel authorities who withhold information under a sensitive section to disclose that information once it is plain as a pikestaff that it would no longer be against the public interest to do so. That is not the same as proscribing information; the information would be disclosed at the appropriate time. We could require that disclosure be made within a specified period.
Any refusal to give information on the grounds of national security should be kept under proper review, because the circumstances of national security change. Circumstances are not the same now as they were 15 years ago.
The provisions of the Westminster Anti-Terrorism, Crime and Security Bill might suddenly be lifted. I have a feeling that that bill will impact on freedom of information.
When we are under threat, it is more important that we know more about our intelligence services. We can know more without damaging national security.
I have been listening to you and the impression that I get is that you are confusing your targets. You obviously have strong feelings about secrecy and the excuse of national security as a way of covering up embarrassment or ineptitude. I do not have any quarrel with you on that.
We have a history in this culture—much more so than in other western democracies—of restraining free speech and denying people access to information. Other western democracies will not use vetoes on information, in the same way that they will not restrain the freedom of the press.
I have no problem with that, except that I wonder how it links with the bill. If you can link it to the bill, I am content.
I shall give an example of the way in which, in the absence of any freedom of information regime, Government ministers can lie and paint as a troublemaker the person who is saying things and trying to gain information. I first became aware of an MI6-funded plot to assassinate Colonel Gaddafi of Libya in 1995. I was briefed officially on the plot and I raised the matter with my bosses in MI5. I had been told that the MI6 officers had permission from the Government to carry out the assassination, but I did not know whether they had, and I thought that we should check in case it was an illegal act. My bosses in MI5 did not really seem to give a damn about it. By that time, I was about to leave the service anyway, so I did not push the matter any further.
I am still puzzled that you think that the Government backstop would affect that. You would have to get any application past the exemptions and through the commissioner long before you got to the Government backstop. The fear is that, when everybody—including the commissioner—says that you can have the information, the Government will routinely block it. However, even allowing for differences in culture, there is no evidence that that happens under any freedom of information act. Once the commissioner has said that it is okay, the matter goes to judicial review, although that is not a route that has been much used. I am afraid that you are confusing your legitimate attack on oversecrecy with the provision of the backstop that exists in every freedom of information act, but which is hardly ever used.
The function of the Freedom of Information Act 2000 is not only to legislate, but to begin to change the culture of our society—to open it up. The act has to have the confidence of the community. Writing in the ministerial backstop is symptomatic of the culture that has pervaded the UK for so long, which believes that nobody—not High Court judges, Court of Session judges or a specially appointed information commissioner—is to be trusted above a minister. When ministers gain office, there will always be a temptation for them to use that backstop.
I rather like your analogy of going back to check whether the gas has been turned off. Is it so unreasonable for politicians worldwide to keep a backstop provision just in case? Leaving aside perception, on which you made a fair point, is that so bad? Can you demonstrate, historically or anecdotally, a fear that that gives rise to, other than David Shayler's general fear about Governments being secretive organisations?
Our fear is that, in addition to the UK culture of secrecy, there is a worrying culture of cosiness, for want of a better word, in Scotland. We are concerned that influence or pressure will be brought to bear on the coverage of stories or how they are steered. We hear stories of ministers phoning different newspapers at times just to ensure that the editor understands the full implications of—
You are now making a totally different small "p" political point.
It is not party political.
The Freedom of Information (Scotland) Bill will not affect that culture, if it exists. If ministers phone editors and editors phone ministers, you could have freedom of information bills coming out of your ears and nothing would change. I do not really see the relevance of your point.
If you have a properly drafted bill and a properly appointed and resourced information commissioner, why would you need the backstop? I think that not having the backstop would enhance ministers. I do not think that it is needed at all.
It is a comfort blanket.
In the argument that journalists always advance when they are seeking information, the final line is always, "Trust me. I'm a journalist." What you are saying is, "Trust me. I'm a politician."
Neither of those goes down very well.
Exactly. That is why we need the commissioner to deal with such things.
A normal, sensible human being would say, "A plague on both your houses."
Of course, the final veto would belong to the First Minister. It would be the First Minister, whoever that may be and from whatever regime, who, after consulting the other members of the Executive, would exercise the final veto. There is consultation, but there is no collective responsibility. I have concerns about that in principle. I also have concerns about the form that the veto would take. It comes down to one man or one woman consulting his or her colleagues. That seems to be a belt-and-braces approach, as you put it. That is just a comment; it is just the way I am thinking.
One thing that has become clear in the evidence that we have heard and in the responses to the consultation process is that, if the legislation is to be successful, we must also address the culture of secrecy and the regimes under which many public authorities operate. David Shayler has given examples of the ways in which the authorities can be secretive. If we continue with the backstop measure or ministerial veto, will that undermine the possibility of truly changing the culture of secrecy that currently exists in public authorities, because they will know that that final backstop could be used if need be? Last year, the Information Commissioner of Canada was here. The Canadians have had legislation on freedom of information for 10 or 15 years. One of the biggest barriers that they came up against was changing the culture of secrecy. Are you saying that the measures in the bill will undermine the process of changing that culture?
Yes.
Are you also saying that, if the ministerial veto continues, there should be a right of appeal through the courts system?
No. I think that, instead of the veto, ministers should have the right of appeal. They should go to the courts like anybody else.
I would like to be clear about this point, as our discussion has gone in a variety of directions. If the information commissioner considers that information can be made public, is it then for the minister to go to court to appeal against the commissioner's decision?
Yes.
Christine Grahame talked about a national security issue. When the commissioner is given information, he or she may receive additional information that makes it insensitive to publicise the information at that time, although later, the information may not be as sensitive. How could that process be reviewed? Who would decide when the information was no longer classified and could be placed in the public domain?
We have argued from the start that the commissioner should have high enough clearance to allow him to see any documents that he needs. I do not see why the commissioner should not have the right to say that information should not be released now, but could be reviewed in six months. The commissioner could order that it be released after six months or flag up to the applicant the fact that they could approach him again in six months, when he might reach a different conclusion.
A number of systems could be used. The onus could be placed back on the person who requested the information, or the information could be subject to a time barrier that would make it public in a year.
Yes.
I want the next two questions to be fairly short, as we still have other business to conclude.
I was interested in the comments in the NUJ's written submission about the relationship between this bill and the British Freedom of Information Act 2000. You seem to suggest that some bodies that could be subject to the bill will remain under the British act. You mention twice the Forestry Commission, which is a worthy organisation. Even if it operated entirely in Scotland and all our trees had an awful disease, questions about it would come under the Westminster act, which is worse than our bill.
Yes.
I will reveal my ignorance. Can we do anything about that? Can we strengthen our bill and tell Westminster to get stuffed, or does it have a grip on us?
That is a good question and I do not know the answer. The bill could say that cross-border bodies should not automatically fall under the remit of the Westminster act, especially when their activities are entirely in Scotland. The committee has the right to say that such bodies should fall under the Scots bill.
If all ministerial certificates were ruled out on principle and a major crime was being committed or was about to be committed, would not that rule out immediate action?
I would be very worried if a ministerial certificate were needed in such a case. A major crime that is about to be committed falls under the existing class exemption on investigation of crime. Contempt of court legislation and interference with the course of justice legislation would provide protection in such cases.
I will make a final point on section 52, which is on the exception from the duty to comply with certain notices—the First Minister's certificates. If we were persuaded to remove section 52, would it cure matters to insert in the bill a right of appeal to the Court of Session for either the applicant or the public body?
I think that that is already included in the bill on a point of law.
I am talking about a right of appeal beyond that, with a review of the facts and circumstances of the case and a final review of the determination. With a point of law, you cannot reintroduce the facts.
It would certainly be more acceptable to have a right of appeal through the courts. However, if the grounds of appeal were extended beyond a point of law, we would want those grounds to be defined.
Would giving each party the right of appeal provide an acceptable balance? I believe that, at the moment, you feel that only one party has such a right.
Yes. We do not want the right of appeal to be removed. People involved in such cases should have the same rights of appeal as other people.
That was quite an exhaustive session and I thank all the witnesses for coming, especially those who have travelled a long distance. Your evidence was very interesting.
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