Freedom of Information (Relaxation of Statutory Prohibitions on Disclosure of Information) (Scotland) Order 2008 (Draft)
Agenda item 2 is consideration of a draft order under the affirmative procedure. I draw members' attention to the draft order and the cover note, which includes the briefing note from the Scottish Government.
I am most grateful, convener.
Thank you, minister. Do members have any questions?
With regard to the Factories Act 1961 and related industrial legislation, I presume that the offence will be against the factory inspector or whoever goes in, whereas the people making the disclosure will be per se the public authority. However, might any different circumstances arise? For example, the inspector entering the premises might have information that is not deemed to be the property of the authority that employs him.
I will need to ask one of the officials to answer that very technical question.
I am sorry—what was the question again?
Obviously, a building is entered by an individual rather than by the authority that employs him or which receives the information. Is there any practical difference between the two? Is the person who enters the building left in a particular position as a result of the change in the legislation?
Given that the individual who enters does so in an official capacity, any information that they obtain will be held by them for the public authority for which they work. As a result, I do not think that the legislation makes any difference or makes any distinction.
I should add that information of commercial interest that might be obtained, particularly under the Factories Act 1961, will still be subject to the provisions of the Freedom of Information (Scotland) Act 2002 and will therefore not be disclosed.
Minister, you passed on the previous question because it was quite technical. However, the draft order itself is pretty technical. Can you give me a practical example of how the order will change the way in which freedom of information inquiries are dealt with? The situation seems clear enough for the Diseases of Fish Act 1983, but under the other headings can you paint a picture that will enable us to understand the issue better?
If a member of the public were to become aware, for example, of an entry into a factory by an official under the Factories Act 1961 and wished to find out what that official was involved in and what information they had sought to obtain, the order would give them the right to know exactly what was going on and why. However, it would not necessarily give them the right in those circumstances to obtain information that is already debarred under the Freedom of Information (Scotland) Act 2002.
I imagine that visits by the Health and Safety Executive are a typical example of a situation in which public interest might arise.
Indeed. That is why the order amends the Health and Safety at Work etc Act 1974.
The Factories Act 1961 is covered by the order. If the person who enters the premises is a consultant rather than someone who is employed by a public authority, is there a risk that information will drop between the cracks?
The order is intended only for those who are involved with the Scottish public authorities that are covered by the 2002 act. Only someone who was entering the premises to perform that public function would be able to disclose any information, not a private individual or consultant.
Even if someone was ostensibly acting on behalf of the public authority as a consultant?
That point is covered in section 154A of the Factories Act 1961, under the heading
The answer is similar to the one that I gave to Robert Brown. If a person is acting for a public authority, they are at present subject to the prohibitions. The order will remove that blanket prohibition and leave the freedom of information regime to deal with any request for information that was gained during those inspections and visits. The provision would apply if a consultant who was acting on behalf of the public authority was carrying out the inspection.
Information that is gleaned at arm's length could still be made available.
The information is not really gleaned at arm's length if a consultant is acting on behalf of the public authority and performing that public function for it.
The only information that could be disclosed would be information that was held by the public authority, not that which was held by the person, persons or organisation acting as its agent.
I presume that these matters are at the margin between reserved and devolved functions. My recollection is that the Health and Safety Executive is a reserved body. To whom does the legislation apply? Who would obtain information that was gathered by such inspection visits? Does the legislation include powers for local authorities or others? Does it go beyond the Health and Safety Executive?
It covers the full gamut of public authorities in Scotland. Some have powers of entry.
I meant under the acts, such as the Factories Act 1961 and the Health and Safety at Work etc Act 1974.
I defer to Mark Richards.
Basically, it covers whoever has the power under those acts. The order puts in place for the Scottish freedom of information regime what is already in place under the English and Welsh freedom of information regime. The changes mirror what the UK Government has done.
I am trying to identify to whom the legislation would apply. I think that I am right in saying that the Health and Safety Executive would be covered under the UK legislation—the Freedom of Information Act 2000—so I presume that it does not need to be covered by the order. What sort of bodies—employment bodies in particular—have powers under the acts that the order amends?
I will give you an example in relation to the Medicines Act 1968. Some people who are employed by Scottish public authorities in Scotland may have the right of entry to a particular medical practice to carry out an inspection. That body or person would therefore be covered in the future by the order. Provided that any request for information from them did not cut across the Freedom of Information (Scotland) Act 2002, the inspector or individual who was involved in seeking information from any health authority or general practitioner practice would be covered by the legislation in those circumstances.
Under agenda item 3, I invite Mr Crawford to move motion S3M-2560.
Motion moved,
That the Justice Committee recommends that the draft Freedom of Information (Relaxation of Statutory Prohibitions on Disclosure of Information) (Scotland) Order 2008 be approved.—[Bruce Crawford.]
Motion agreed to.
I thank Mr Crawford. I suspend the meeting briefly as the witnesses change over.
Meeting suspended.
On resuming—
Scottish Commission for Human Rights (Specification) Order 2008 (Draft)
Under agenda item 4, we have another draft order to consider under the affirmative procedure.
Given that the committee has already considered all the papers, I am happy to waive my opening statement if members so wish. I understand that you have a full agenda.
Does the committee agree to move straight to questions?
Members indicated agreement.
I am obliged for that, Mr Ewing. Are there questions for the minister? Mr Ewing is getting away very lightly this morning.
We cannot let the minister get away as lightly as that.
That is the next agenda item.
Sorry.
In the Glasgow vernacular, you are chapping at the right door but you are up the wrong close.
That is the difficulty that arises when the minister does not make his statement.
Under agenda item 5, I invite Mr Ewing to move motion S3M-2562.
Motion moved,
That the Justice Committee recommends that the draft Scottish Commission for Human Rights (Specification) Order 2008 be approved.—[Fergus Ewing.]
Motion agreed to.
Adults with Incapacity (Electronic Communications) (Scotland) Order 2008 (Draft)
Agenda item 6 is consideration of a further affirmative instrument. Before we move to the formal procedure on the motion at item 7, members may ask questions of the Minister for Community Safety and his officials. I welcome the new officials who have made their way to their positions discreetly and silently. We have with us Sandra McDonald, public guardian; Stuart Fowler, deputy public guardian; and Kenneth Graham, special projects manager at the office of the public guardian. I invite Mr Ewing to speak to the order.
I have no formal statement prepared, so I cannot offer to waive it. The order will allow the public guardian to receive and process powers of attorney in electronic format. I am advised by the public guardian that the office receives about 40,000 powers of attorney per annum. Therefore, the processing of the hard copies of those documents is a time-consuming task, which requires the involvement of many personnel, who are perhaps unable to turn their attention to more fruitful endeavours. In short, the order is a measure that will assist considerably the administrative efficiency of the office of the public guardian. The approach is being conducted on a pilot basis with six of the legal firms that are most frequently involved in this area of work, although other firms are entitled to participate at the outset if they wish. It is no more than a measure that will assist the public guardian and her staff in their duties.
I anticipate a question from Cathie Craigie.
I thank the minister for that brief introduction. I am surprised by the volume of applications that the public guardian deals with. What benefit will the draft order bring to individuals and to families who are applying for the power?
I have outlined the administrative benefits of the order, which I think are fairly clear and understandable. The public receive an excellent service from the office of the public guardian. It is a measure of security and confidence that those whose affairs are being managed by somebody else have an office that is there to ensure that the rules and procedures are properly applied and preserved. Those who grant a power of attorney are in a state of some vulnerability in having their affairs looked after by a third party—usually, or very often, a family member. In case I have missed anything out, I invite Sandra McDonald to make any other points that are relevant to Cathie Craigie's question.
The most specific point to make is that the power of attorney is granted by somebody while they are capable and determines who they wish to look after their affairs once they become incapable. The benefit to the incapable adult is that they select that person ahead of their becoming incapable. If the power of attorney is not granted before they become incapable, they get into the guardianship and court processes, with which I know that Cathie Craigie is familiar, which determine for them who we think should have power of attorney. We must stress the importance of people selecting, while they are capable of doing so, the person whom they would wish to be their attorney if and when they need them later in life.
Would the electronic application be followed by the relevant documents being sent in hard copy?
We propose that the relevant documents that are currently attached in hard copy be scanned by the solicitor who is dealing with the power of attorney—90 per cent of cases are dealt with by a solicitor. The solicitor would scan the principal document—the power of attorney deed—and the relevant attachments, all of which would be sent to us electronically. We are not looking at online submission, whereby somebody completes the form, presses a button and sends it to us, but, rather, at a process whereby the solicitor who has dealt with the documents in hard copy scans them to send to us.
Will the cost benefits be passed on to the client? I take it that people pay fees to the solicitors or to the public guardian. The note that is attached to the draft order says that there will be "small savings". Will they be passed on to the applicant?
The fees that are charged to those who seek to register powers of attorney were fixed by the Justice Committee just before the summer recess through the Adults with Incapacity (Public Guardian's Fees) (Scotland) Amendment Regulations 2008. I indicated that we did not plan to revisit that after the committee took its decision to support that move. I seem to remember that I also indicated that the fee for registering power of attorney in Scotland is far less than it is in England. In England, the fee is £150 and in Scotland it is now half that—I think that it is £60. We are half as expensive as our friends down south.
We are 40 per cent as expensive.
Thank you for doing that arithmetic, convener.
The note says that "small savings" will be made. How much will the savings be? Will they be recycled back into the service? Is that the point that you are making when you say that people will be freed up to do other work?
I will ask the public guardian to answer that in a second. It is plain that the savings will result from the replacement of overelaborate and complicated procedures, which the public guardian explained, with simple electronic transmission. Perhaps as important as the financial aspect is the fact that those who seek to go through the process of registering power of attorney will be able to do so much more quickly. I imagine that that will be welcomed by many people in that position, who are anxious to resolve matters with due speed, given that there is often an element of urgency. I invite the public guardian to answer the question about the amount of savings and what will happen to them.
The pilot that we are planning will seek to evaluate the exact savings. If we assume that the pilot is successful and we extend the procedure to all solicitors, the savings will come primarily from the fact that we will not have to store the hard copy of the power of attorney document because we will no longer receive it. At the moment, storage costs are £10,000 a year, so that is one saving. Savings after that will come from paper. We are talking minutiae, but currently we have print out the copy that we send back out to people. If we send the document back out electronically, we will save some paper. We will save on postage—we currently send out 40,000 documents. We have yet to quantify it, but we will save on some element of staff time. The process involves at least two staff members, one at either end of the process. If all solicitors access the new process, we are talking about a saving, in round figures, of about £50,000.
The point that you are making very clearly to the minister here today is that you expect to keep a hold of that budget.
No. [Laughter.]
My concern was that the hard copy would be held somewhere. As it is clear that it will be held by the administering solicitor, my question has been answered.
Under agenda item 7, I invite the minister to move motion S3M-2561.
Motion moved,
That the Justice Committee recommends that the draft Adults with Incapacity (Electronic Communications) (Scotland) Order 2008 be approved.—[Fergus Ewing.]
Motion agreed to.
Meeting suspended.
On resuming—
Divorce etc (Pensions) (Scotland) Amendment Regulations 2008<br />(SSI 2008/293)
We have two negative instruments to consider under agenda item 8. No points were raised on SSI 2008/293 by the Subordinate Legislation Committee. Do members have any questions?
The instrument comes into force on 1 October. How will it apply to court cases that are already halfway through the process? Will they be determined under the new arrangements or will they conclude with the arrangements under which the action began?
We will seek clarification, but my view would be that if they started under the existing system, they would have to be concluded under that system. Are members content with the instrument?
Members indicated agreement.
Freedom of Information (Scotland) Act 2002 (Scottish Public Authorities) Amendment Order 2008 (SSI 2008/297)
No points were raised by the Subordinate Legislation Committee on SSI 2008/297. Do members have any questions?
The organisations in schedule 2 no longer exist. I would be grateful for some clarification regarding the paperwork and files that those organisations would have had, to ensure that they have been disposed of in the correct manner.
We can raise that point with the minister in correspondence.
I have two points, the first of which is minor. Why is there a "ZA" beside the number 62? Perhaps it has just been left there, but it should have been taken away.
The "ZA" is possibly something that has been left but which should have been deleted; the document has probably not been properly proofread. We will inquire into that, and we will extend the inquiry that was raised by Stuart McMillan in order to resolve your second point. Are members content to note the instrument?
Members indicated agreement.
Meeting suspended.
On resuming—