Subordinate Legislation Committee, 27 Nov 2001

Meeting date: Tuesday, November 27, 2001

Official Report 120KB pdf

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Delegated Powers Scrutiny

I welcome you to the 33rd meeting in 2001 of the Subordinate Legislation Committee—that we should have lived so long.

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Freedom of Information (Scotland) Bill

The first item on the agenda is scrutiny of the delegated powers in the Freedom of Information (Scotland) Bill at stage 1.

Part 1 of the bill is entitled "Access to information held by Scottish public authorities" and section 4 is entitled "Amendment of schedule 1". Is there anything in section 4(1) that anyone wants to comment on? We might want to consider further the implications of the use of delegated powers in this instance. There might be a bit of a contradiction in how section 4(1) works with section 7(2).

Do we think that section 4(1) should be subject to the affirmative procedure?

One of those sections must change to give consistency, but the committee might not agree.

Obviously, there should be consistency in the bill, but it seems perfectly appropriate for section 4(1) to be subject to the negative procedure. I imagine that the provision will simply be used in cases where public bodies cease or start to exist, or change their names. In such cases, the negative procedure is perfectly appropriate.

I think so. I certainly do not take issue with that view at all, but when we get to section 7(2) we will decide whether we should reconsider whether the negative procedure is appropriate for section 4(1) in the light of what is possible in section 7(2).

There seems to be no problem with section 5(1).

I agree. There is a requirement for consultation in section 5(1) and we should welcome that. Wherever we see the requirement for consultation popping up in the bill we should welcome it and let the Executive know that.

Section 7 is entitled "Public authorities to which Act has limited application". Section 7(2) should be read in conjunction with section 4(1). Do you want to say anything on that, Bristow?

The issue here is that there is a difference between the two sections. Section 4(1) merely defines which public authorities fall within schedule 1. Section 7 defines the limits of the bill's application to public-private partnerships.

It is appropriate that the section 7(2) power be subject to the affirmative procedure because it is more controversial than the question of which public authorities are listed in schedule 1. That makes for a degree of consistency. The details of each proposed exemption will have to go before Parliament before a decision is made on whether the public authority concerned, or part of it, is exempt from parts of the bill.

We have to be careful in our comments to the Executive on the matter. Under section 7, the Executive has the ability to withhold information on the bodies that are covered by section 4.

Yes, section 7 gives the Executive a power that could exclude certain contracts from the provisions of the bill, but that power would have to be affirmed by Parliament before it could be applied. If a majority of members felt that the Executive was using the power inappropriately, the Executive could be overruled.

In that case, do we just need to say that for the powers in section 4 to be subject to the affirmative procedure would be neater, more consistent, better understood and more watertight?

I do not think so. The way I read section 4 is that, if the bill were in force now and, for example, the three water authorities become Scottish Water in six months' time, the power would be used to delete the three existing water authorities from the schedule and add Scottish Water. That is not a controversial power, and the negative procedure is appropriate. The question of whether we allow individual PPPs to be exempt from parts of the bill is potentially more controversial and the affirmative procedure therefore seems more appropriate.

I am inclined to agree with Bristow Muldoon. Public authorities come and go. They are often wound up; they merge and are reconstituted. To use the affirmative procedure would clog up parliamentary time whenever schedule 1 was to be changed. That is unnecessary.

The legal adviser indicated that there is a difficulty with the two procedures working together. Section 7 seems to make affirmative and negative procedures coincide in a way that might not be stylistically good.

I am inclined to agree with what Bristow Muldoon and Murdo Fraser said. The objections that have been raised are to do with drafting and constitutional niceties, but in practice I do not think that section 7 will be a problem if it works as is intended.

A suggestion was made that we might have officials to talk about the matter next week.

I was going to mention that suggestion. We can ask questions about the matter if we decide that we want officials to come to the committee.

We will rattle through the bill. If we come across one or two other problems, we will decide to ask officials.

Under section 9(4), the Scottish ministers have powers to make regulations setting out the fee structure in accordance with which charges may be made for the provision of information under the bill.

The section contains no requirement on ministers to consult before making regulations. Perhaps that should be included.

We do not need to argue with anyone about that—we just suggest that we think that the requirement should be included. That would be in line with other parts of the bill, in which there are requirements to consult.

No points arise on section 10(4), which enables the Scottish ministers to vary by regulations the period within which a Scottish public authority must comply with a request for information. Those regulations would also be subject to the affirmative procedure.

Section 12 enables Scottish ministers to make regulations that specify an upper cost threshold for complying with applications for information.

Perhaps section 12 should contain a requirement for prior consultation on any regulations that are made.

Yes. The regulations would be subject to the negative procedure. It is recommended that we suggest the belt-and-braces affirmative procedure instead. I like the idea that, wherever money is involved, the affirmative procedure should be used. That is a rule of thumb.

Section 13 concerns fees for disclosure in certain circumstances. There might be something odd about the section, in that it allows local authorities to decide in favour of releasing information in cases in which they do not have to. However, they will not be able to set their own fees. That is a bit odd, but there is nothing wrong with it.

Section 20(7) provides that the Scottish ministers may make regulations to vary the time scale within which an applicant can request a Scottish public authority to review its original response to a request for information. No points arise on that section.

Section 21(6) makes a similar provision to that in section 20. It provides that the Scottish ministers may make regulations varying the time scale within which a Scottish public authority must undertake a review of its response to a request for information. No points arise on that section.

Section 23 obliges public authorities to adopt schemes for the publication of information by the authority. Section 24 authorises the Scottish information commissioner to prepare model publication schemes that authorities may, but are not obliged, to adopt. The sections give the information commissioner powers, but he has to let Parliament know the reasons for what he does. Are we content with the powers as drafted?

Members indicated agreement.

Part 4 of the bill is about enforcement. Section 47(6) provides that the Scottish ministers may make regulations to vary the time limits within which the Scottish information commissioner must reach a decision on an appeal. No points arise on the section.

Part 5 of the bill concerns historical records. Under section 59(1), the Scottish ministers may vary by order the period in section 57(1) after which a record becomes a historical record. They may also vary the periods in section 58(2) that determine when certain exemptions fall away and no longer need to be considered. Such an order would be subject to the affirmative procedure. That takes care of the fact that there will always be differences of opinion as to when history is dead and buried and when it should definitely be dug up.

Part 7 concerns miscellaneous and supplemental powers. Section 62(3) will enable the Scottish ministers to make regulations to implement the Aarhus convention. There are no comments to make on the section.

Section 63(1) enables the Scottish ministers, by order subject to the affirmative procedure, to repeal or amend a relevant enactment if it appears that the enactment is capable of preventing a Scottish public authority from disclosing information.

Now we come to the nub of the matter. The committee may feel that the best procedure to follow would be to invite someone from the Executive to come to the committee next week so that we can ask them how the power is intended to be used.

The point is substantial. The section gives the Scottish ministers powers to repeal primary legislation by subordinate legislation. That may be inappropriate.

We cannot understand that provision. It is a bad idea. We do not understand why it is in the bill. We will invite someone from the Executive to come next week.

I think that the logic of the provision is to ensure that other legislation that looks as if it might obstruct freedom of information is not allowed to do so. It is a way of making information available that might be withheld under other legislation. However, it is a big power to allow to be passed without some scrutiny. By questioning officials, we might get something on the record about how the Executive envisages that the power will work. If that information is not ultimately in the bill, it will be in the Official Report.

We will invite Executive officials to come and explain section 63 and the possible contradiction between sections 4 and 7. Are we agreed?

Members indicated agreement.

Section 72 relates to commencement. No points arise on the section.

Part 6 concerns codes of practice. We should welcome the fact that codes of practice are to be issued.

Members indicated agreement.