Justice 1 Committee, 30 Oct 2001

Meeting date: Tuesday, October 30, 2001

Official Report 224KB pdf

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Freedom of Information (Scotland) Bill: Stage 1

Now for something completely different, as they say. We will now take evidence on the Freedom of Information (Scotland) Bill from members of the Scottish Executive unit dealing with the bill. I invite you to introduce yourselves and give a brief opening statement.

We are grateful for the invitation to give evidence on the general principles of the Freedom of Information (Scotland) Bill at stage 1. I am Keith Connal, head of the FOI unit in the Executive. On my right is Geoff Owenson, also from that unit, and on my left is John St Clair from the office of the solicitor to the Scottish Executive, who has recently been assigned to the bill.

Because of diary clashes and the understandable delay in the committee's confirming today's meeting, my Crown Office colleagues who have appeared with us at previous meetings cannot be here today. They have asked me to say that they would be happy to attend on another occasion if that would be helpful.

The bill is the focus of considerable attention today—not only is the committee taking evidence, an all-day conference on the bill is taking place here in Edinburgh at which I and the Deputy Minister for Justice, Iain Gray, spoke this morning.

When we appeared before the committee on 16 May as officials, we discussed the draft bill that had been published in March. Since then, the Executive has completed the consultation exercise and refined and adjusted the bill, which was introduced to Parliament on 27 September. We have recently published a summary of the consultation responses. As has been the case since the Executive's proposals were first published, the bill received a general and broad welcome, although a number of issues and detailed points were raised in the consultation exercise. The adjustments to the draft bill have been summarised in a note provided to the committee clerk, and we are happy to discuss any of those points should the committee wish to do so.

In keeping with the key principles underpinning any FOI regime, the bill provides a legal right of access to information held by Scottish public authorities and balances that right by a limited range of exemptions, and decisions to withhold information are subject to a test of harm or, except in certain circumstances, a test of public interest in disclosure. The bill provides arrangements for appeal to and enforcement by an independent Scottish information commissioner, who would have wide powers to promote and enforce the legislation.

I do not want to eat into the time available for questions, so I shall draw my opening remarks to a close. We would be happy to answer any questions, now or in writing, and perhaps to return to the committee later in stage 1 if that would be helpful.

What is the relationship between the Scottish bill and the UK legislation? How will they interface with each other?

I shall start to answer that question. If further points emerge, I shall ask my colleagues to contribute. As the competence of the Scottish Parliament is clearly defined in an amendment made in 1999 to the Scotland Act 1998—

I am sorry to interrupt you, but could you speak up a wee bit, please. I know that there is amplification, but some of our older members are having a little difficulty hearing you.

My apologies—my voice is giving out as I have spent most of the day speaking. As an official of the Executive, I am more used to writing than to speaking.

In 1999, an amendment was made to schedule 5 to the Scotland Act 1998, which clarified the Scottish Parliament's competence to legislate in the area of access to information. In the sense that that amendment made the Parliament's competence to legislate on access to information clear, it is separate from the competence of the Westminster Parliament. The two pieces of legislation are distinct and will not overlap in their application to public bodies. In that sense, there is no interaction. The two pieces of legislation are separate and distinct. The Freedom of Information Act 2000 will apply to UK public bodies and the Scottish act will apply to Scottish bodies. You may want to ask about other aspects of interaction, in a practical sense, between Scottish bodies and UK bodies, which we would be happy to discuss.

You are saying that the Scottish legislation will apply only to areas that are within the legislative competence of the Scottish Parliament—its devolved functions. A UK-based organisation may have a quite distinct Scottish side to its operation. For example, the Disability Rights Commission has a Scottish commissioner. Will the UK legislation apply to the Scottish side of that UK body or will the Scottish legislation apply?

The separation between the two pieces of legislation is based on what category a body belongs to. A UK public body, such as HM Customs and Excise, the Ministry of Defence or the Department for Work and Pensions—even if it operates in Scotland—will be subject to the Freedom of Information Act 2000. Legislative competence is not dependent on whether the information held relates to devolved or reserved matters; the separation is by the category of the public authority that holds the information.

There are non-statutory codes of practice for access to Scottish Executive information and to UK Government information. How will they be affected by the bill?

The code of access to Scottish Executive information will cease to apply once the Freedom of Information (Scotland) Bill is enacted.

Will the codes cease to apply entirely?

Yes.

I am often asked what new information will become available. Will the information that is unavailable under the current codes of practice automatically become available the day after the bill is enacted?

We are often asked the same thing. The question is difficult to answer, because it implies that we have a list of information that cannot be disclosed which, on the bringing into force of the Freedom of Information (Scotland) Bill, it will be possible to disclose.

The key difference between the current code that the Executive operates and the proposed bill is that the enactment of the latter will give a legal right of access as opposed to access that is governed by a non-statutory, voluntary code. That legal right of access will be enforceable by a commissioner who will have more powers to order disclosure of information and generally to enforce the act than the parliamentary ombudsman has to enforce the current non-statutory code.

It is difficult to provide a list of information that we are holding back until the enforcement of an act. We do not have such a list. The key difference is the introduction of a right of access.

So the bill effectively just provides a legislative base for the codes of practice?

When enacted, the bill will apply to a much wider range of public authorities in Scotland than the code applies to.

Of course. I am referring to Executive information.

At the moment, the code is applied on a voluntary, discretionary basis. If enacted, the bill would provide a statutory right of access.

Does the bill go any further than the current codes of practice?

It will provide a statutory right of access, whereas the codes are only discretionary. Because it will apply to a wider range of public authorities—

I am really talking about the types of information that are available under the current codes of practice. Will the types of information that are available change?

That depends on the information, which will have to be considered on a case-by-case basis.

I will try to answer your question directly. The non-statutory code that the Executive operates applies to all information held by the Executive. The code is not limited in that sense. If enacted, the bill would apply to that same range of information.

Section 2 deals with the effect of exemptions. Section 2(1)(b) states:

"in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption."

What would you regard as an appropriate definition of the public interest? Should guidance be issued in this area, especially if the public interest is weighed against the various exemptions?

My second question has been raised by Friends of the Earth Scotland. As archives can charge an average of £25 an hour, it would be quite easy to pass the upper charging limit. Have there been many comments on the charging method and limits? Does the Executive have any plans to remedy the problem?

As the public interest is a well-established legal concept, it is not common practice to define it in legislation. Consideration of the public interest is common to most FOI regimes around the world and we are not aware of any attempt to define the term in them. Any such attempt would necessarily restrict its potential application by setting in stone one of the factors that would for ever more define and bind what is meant by the public interest. After all, the public interest changes over time, and what was in the public interest 20 years ago might well be different now. As for guidance on the public interest, it would be more appropriate to leave that matter to the Scottish information commissioner.

If I understand correctly, Lord James Douglas-Hamilton's second question relates to the charging regime and the prospect of reaching an upper threshold quickly. I should first point out that any FOI charging scheme introduced in regulations that will be made under the bill will not apply to existing charging regimes that are already set out in statute. Furthermore, the FOI charging scheme regulations would not apply to any charges for the provision of information set out in an approved publication scheme. The intention behind that is not to disturb existing arrangements for the provision of information to the public even where there might already be a charge.

The bill proposes that regulations made under it should set the value of an upper limit, which can be amended by changing the regulations. In the consultation paper that accompanied the draft bill, we suggested that the limit might be set at around £500. As charges apply only to the cost of searching and retrieving, it would take a significant request to breach an upper limit set at that level. I hope that that fully answers your question.

Will the information commissioner's annual report to Parliament make public any failure by public authorities to disclose information?

My answer is not intended to be circuitous, but the content of the commissioner's report will be very much a matter for the commissioner. The commissioner would be able to name and shame authorities if he or she so wished. We have sought not to prescribe in the bill too much of what the commissioner should or should not include in his or her report.

The fact that certain decisions by the Lord Advocate and procurators fiscal do not seem to be open to appeal by the information commissioner has attracted adverse criticism. Why has that course of action been adopted?

Under the terms of the Scotland Act 1998, any decision taken by the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigations of death in Scotland is to be taken by him independently of any other person. It is not therefore appropriate to allow the commissioner to overrule such decisions of the Lord Advocate. I emphasise that the Lord Advocate is still subject to the legislation in all other respects, for example being required to respond within 20 days, to produce publication schemes and to consider public interest in disclosure.

Forgive me if I am not on the ball—not being a lawyer—but as I understand it, the proscription of any comment on what the Lord Advocate or a procurator fiscal does applies to all the information held and not just to matters relating to prosecution activities. It seems to go further than necessary.

John St Clair might want to comment on this, but I would suggest that that depends on the extent to which the decision is taken by the Lord Advocate as head of the systems of criminal prosecution and investigations of death in Scotland.

The detail of any question of the operation of the proposed bill by the Lord Advocate and the Crown Office might best be answered by Crown Office officials. They have been clear with us that they will come fully under the terms of the legislation. Any final decision in relation to the Lord Advocate's position as head of the systems of criminal prosecution in Scotland under the terms of the Scotland Act 1998 remains with the Lord Advocate. I would be happy to provide further details on that or to ask the Crown Office to do so.

An issue that has aroused more adverse comment than any other is ministerial certificates. Why do we need them? Will there be some sort of guidance or limitation on their use? We have to look forward to a time when there is not a marvellous minister like Jim Wallace in charge, but a really evil minister of some nameless party who wishes to destroy the whole system. The system must be robust enough to defend itself against misuse. The power to issue ministerial certificates seems to be a serious weakness in the bill.

The use of a ministerial veto is a feature of several regimes around the world. Ministers are aware of the concerns that the issue has raised. As a result, every effort has been made to emphasise unequivocally the seriousness with which the issuing of a ministerial certificate would be considered. I would also emphasise that it would be used only for limited exemptions in limited circumstances.

As we set out in the policy memorandum, our initial intention was that a certificate would be issued only on the collective decision of the Scottish ministers but, because the Scotland Act 1998 provides that the statutory functions of the Scottish ministers can be exercised by any one member of the Executive, that was not possible. That is why we have said that a certificate would be issued by the First Minister after consultation with the Scottish ministers.

I am always fascinated by civil service phrases such as "used only in exceptional circumstances." Give us an example of an exceptional situation. Phrases such as "only in exceptional circumstances" and "once in a blue moon" are meant to be wonderfully reassuring, but no one gives us an example of the circumstances in which such measures might apply. I am always suspicious of provisions when no one can give me an example of when they might be used.

It is a bit like saying what information would be disclosed—it is very difficult to say in what circumstances the provision would be used. The provision exists, should it be necessary. In New Zealand, ministers have a similar provision. It too is a collective power. It has not been exercised since 1987.

You say that it is difficult to give an example of when a ministerial certificate would be used and you have given an international example. When the bill was drafted, there must have been a reason for including the veto. What was that reason?

It is a backstop.

The reason for the Scottish bill having a very limited ministerial veto, and the reason for the UK Freedom of Information Act 2000, the Irish Freedom of Information Act 1997 and the New Zealand Official Information Act 1982 having a ministerial veto—all of which vary, and I would be happy to discuss that—is that they—

That does not necessarily make it right.

I am not using those examples to justify the Scottish bill; I am not saying that it is necessarily correct to have a ministerial veto just because someone else has one. I mention the New Zealand and Irish acts because they are often cited as good examples of the drafting of FOI legislation. In those countries, it was felt that the strong powers of the commissioner and the way in which the bills were drafted meant that there was a need for a ministerial veto in limited and exceptional circumstances. The same view was taken here. In our case, the First Minister would consult colleagues to make the final decision in sensitive cases. Such a provision is not unusual in FOI regimes. The evidence from New Zealand supports the contention that vetoes would not be common. Here, the certificate would have to be laid before the Scottish Parliament and any ministerial decision in such a case could be the subject of a judicial review.

We understand that any FOI bill that contains a ministerial veto will attract criticism, but we need to provide, in limited circumstances, what I think I heard one committee member describe as a backstop. The limited nature of the veto in the Scottish bill is intended not to undermine the commissioner. The application of the veto in the Scottish bill would come only after consideration of an appeal by the commissioner. That contrasts with Ireland—I am not criticising the Irish act—where ministers can veto the consideration of an appeal by the Irish commissioner so that the commissioner is not given the opportunity to consider the appeal and determine its outcome. I think it is fair to say that the circumstances for which the Scottish bill allows the application of the veto are limited.

I do not know whether that answer has been helpful. I am not sure that we can talk about hypothetical cases. The bill was not designed with a particular piece of information in mind that we anticipated would need the protection of a ministerial veto. We can consider other FOI regimes and we would be happy to provide the committee with information on the limited circumstances in which Ireland, New Zealand or wherever has invoked the ministerial veto.

That would be helpful. I was the one who used the term "backstop". I understand what you said about Ireland and the fact that our backstop is even more limited than theirs. I also understand why Governments all over the world would want a backstop—I suspect that if I were in government I would want it as well. However, something worries me—although this question is perhaps not for you but for your political masters.

I take it that the veto will hardly be used. You have given us the New Zealand example. But the simple existence of the veto creates the perception that we are giving with one hand and taking with the other. The normal person—who is cynical about government—will say, "Well, they have given us freedom of information, but a ministerial certificate can overrule that—so they are not really giving us freedom of information." For the reasons that you have given, I feel that that perception would be wrong, because the veto would hardly ever be used, but if we find it impossible to say when we would use it, and if New Zealand has not used it since 19-canteen, a question arises: on balance, is it worth risking creating that wrong perception for something that has no real practical import? I appreciate that, with no disrespect to the civil servants, that may be more of a political question, but has it been considered?

You give me the perfect opportunity to say that, when the minister appears before the committee later in the stage 1 scrutiny, you can put those points to him.

We will.

If you do not mind, convener, I will not attempt to give his personal view on whether including the veto gives an unfortunate tone to the act.

That is fine.

Taking into account international experience, if the First Minister is given these powers, will guidance be issued so that when he can use them is clearly laid out—or will he be able to use them when he sees fit?

No such guidance has been prepared in relation to this bill. We would be some way off doing that if it were to be produced. It is a question that I have not considered. I do not know whether in other jurisdictions such guidance is provided to ministers who are deciding whether to exercise a veto in their jurisdiction. That is a terribly unhelpful answer, I am afraid.

Can the officials give us the history of this power in other countries? To take up your point, convener, can they give us examples of when the veto has been used? One could say, "That is a reasonable example. We should prevent that." I take the officials' point that they do not have to defend decisions made by politicians, but if I heard correctly, the argument that New Zealand has had the power since 1987 and has never used it is an argument against the power, not for it.

For clarification, the significance of the 1987 date is that when New Zealand's Official Information Act 1982 was introduced, it allowed ministers individually to issue veto certificates, and a number were issued. The New Zealand Government felt that there was an inappropriate and too frequent use of individual ministerial certificates. The significance of 1987 is that the New Zealand Government amended the 1982 act to make the veto a collective ministerial veto. Since then, for whatever reason—I am not particularly au fait with New Zealand politics—that collective ministerial veto has not been exercised.

Mr Owenson has explained that the Freedom of Information (Scotland) Bill does not and cannot require a collective decision because of the terms of the Scotland Act 1998, but we have gone as far as we can in legislative terms to make the First Minister exercise the function, and require him to consult his colleagues.

For the record, I raised the issue because of my experience, in another life, of public interest immunity certificates, which are not a million miles away from what we are talking about. Previous Administrations south of the border have been in serious trouble because of those certificates. You may not be able to do so now—you may have to do so later—but it might be useful to give us the information that Donald Gorrie requested. If such a veto is used worldwide, can you give us examples of when it has been used? As Donald Gorrie hinted, that would be helpful; being entirely reasonable people, we might say, "Yes, we can see why it is a good idea."

I have made the offer, and we would be happy to assist in that way.

Was not this issue a source of great controversy in the Scott inquiry on arms to Iraq? What do you have to say about that?

Are you referring to the Matrix Churchill inquiry? That concerned public interest immunity, which is related to the veto but different. It does not relate to the Freedom of Information Act 2000, because the act was not in force then.

But you might accept that the ministerial veto might give rise to the same problem.

I accept that. Outside this forum, we have been asked about public interest immunity and whether there is a relationship between the Freedom of Information Act 2000 and PII certificates. I will shortly ask John St Clair to comment from a legal perspective.

In a sense, PII certificates carry with them a higher test because the withholding of documents from court is involved. They set a very high test, which must be satisfied before documents may be withheld. I am now straying into territory on which the deputy convener is more of an expert than I am, and now ask John St Clair to comment further.

The way in which the bill is framed means that the decision to control the information gets out into the public domain. There are various controls on the making of the decision: the First Minister would have to consult his colleagues; judicial review; and, ultimately, parliamentary control. PII is rather different, because it is limited. Nevertheless, it is still subject to judicial review, and I remember that, in the Matrix Churchill case, the hare was let loose because the judge overturned the PII.

I am not suggesting that a veto and a PII certificate are the same, but they often give rise to the same issue. In a funny sort of way, they present the same danger for politicians. Like other members, I was trying to ascertain that the game was worth the candle—that is why it would be useful to have examples of when a veto would be used—but I am not sure that we can take this much further.

This is a low-level point compared with what we have just discussed, but it perhaps relates to the same idea: that you seem to be giving with one hand and taking away with the other. There is to be a substantial prejudice test in Scotland—not in the whole of the UK. It is a matter of definitions: in the end, will the definition of "substantial prejudice" have to be tested in court? That provision makes the bill more powerful, but there are also ways of refusing requests. Some requests may be deemed to be vexatious—but who will determine what "vexatious" is? Will that have to be tested in court?

Why are there to be exempt classes of information? Could not that have been dealt with simply by having regard to the public interest or whatever? What about absolute exemptions? Many of the provisions relating to those questions seem hazy, and I do not know why they are included, nor how we will make the necessary definitions.

I have noted four questions or subjects and I appreciate that there is a lot to be explored in each. I will ask Mr Owenson to touch on definitions, including the definitions of "public interest" and "vexatious". We will perhaps then discuss class exemptions, the operation of the public interest test and absolute exemptions.

The problem with defining certain words or phrases such as "vexatious" or "public interest" in the bill is that it limits their application and does not allow an interpretation of the definitions to develop over time, whether through a change of view, experience or precedent. By not defining the terms, we give the information commissioner discretion about how best to apply them in given circumstances.

There is a general presumption that information covered by a class exemption will not be disclosed. There are only a limited number of class exemptions, which apply to information that is invariably sensitive, that it would not be appropriate to disclose, for example Cabinet minutes. That is not unique among freedom of information regimes around the world. Many of them have class exemptions or exclusions for such information. Class exemptions provide a clear signal that such information will not normally be disclosed, which is helpful to both the applicant and the public authority. However, it is important to remember that an authority would also need to take account of the public interest in considering most of the class-based exemptions.

Do you see that being tested in court once the bill becomes an act? I accept that you cannot put definitions in the bill, but if people who are anxious for information are told that they cannot have it because their request is vexatious, they will take the matter further and seek some sort of definition or justification.

We think it likely that the key expressions will be tested in court soon. Somebody is likely to take issue with the commissioner's interpretation and that will put a stamp on the jurisprudence. If the Parliament disagreed with the judiciary at that stage, it would be up to the Parliament to intervene. We think that it does not make sense to over-define at this stage by using more concepts to describe what are difficult issues. They must be dealt with against a backdrop of jurisprudence. We think that that is adequate for now. Ultimately, it will be for the court and then for the Parliament to decide.

I will add an illustration of how that might work in practice. Ireland has similar provisions to those in the Freedom of Information (Scotland) Bill. Because a number of Irish public bodies sought to refuse applications for information on the basis that they were vexatious, the Irish commissioner issued guidance to Irish public authorities on when he would consider it appropriate for them to judge an application as vexatious. That is the sort of guidance that would evolve here. Initially, the Scottish commissioner would be the first port of call for such guidance, because in the appeals structure he or she will be the person who will redress any dissatisfaction that an applicant might have.

I know that a great deal of paperwork descends on the committee, but on the subject of exemptions, I refer members to the policy memorandum that accompanies the bill. Starting on page 12, we try to set out in a few short paragraphs the principle of exemptions, what they do and do not mean, and what are absolute exemptions, which the member asked about.

Absolute exemptions are mainly technical provisions that deal with, for example, information that is already available to the public. There is an exemption for that. It might sound strange that we have had to put into a freedom of information bill an exemption that deals with information that is otherwise available, but that is a common technical route in such bills. The bill applies to all information that is held; it catches information and then one exempts what is already available to people. That is what an absolute exemption is. It would not make sense to apply the public interest test to information that is already available to the public.

The information is already in the public domain.

Yes.

People do not have to find out about it, because they should know about it.

That links to the proposal in the bill that all public authorities should issue a publications scheme that makes known what information and categories of information they make available routinely. The absolute exemption is meant to work together with that.

The other sort of absolute exemption deals with the fact that the bill needs to recognise and respect other statutes, for example the Data Protection Act 1998, which provides protection for personal information and subject access rights. Because the general right of access in the bill applies to all information, we have had to carve out or exempt absolutely personal data that are caught by and for which access is provided under the Data Protection Act 1998.

If one were simply to tot up the number of exemptions, one might conclude that there are too many, but a number of the exemptions are simply technical provisions. Given the way in which the bill is structured and its approach to the right of access to information that is held, one needs to carve out certain other provisions that deal with information that is already in the public domain or that is caught by the Data Protection Act 1998.

I am conscious that the key factors in the success of the legislation, once it reaches the statute book, will be how it is implemented and how the freedom of information regime is established.

Sections 60 and 61 give the Executive powers to issue codes of practice, with the intention of assisting public authorities with the implementation of a freedom of information regime. Does the Executive propose to consult on those codes?

The first code, which is covered by section 60, is on the operation by Scottish public authorities of the general functions of the act. We have yet to finalise our views on how we will consult on a draft of that code. We have been focusing on preparing the legislation for introduction and have not developed the codes to the same extent that we have developed the bill. In preparing a draft of the second code, which deals with public records, we are receiving assistance from the National Archives of Scotland and we will consult relevant and interested parties in the wider archival community on its contents.

Examples of what the codes might look like are available in the equivalent codes that were produced under the Freedom of Information Act 2000—those codes can be found on the Lord Chancellor's website. I stress the word "might", because we are not bound to have the same codes, but it would not be unreasonable to assume that our codes will cover similar territory.

Would you expect to hold public consultation on the code that is to be produced under section 60?

I have not committed the Executive to such a consultation. No decision has been taken on the precise mechanism that we will use to arrive at a final code. Members should bear it in mind that the code can be issued only after consultation with the Scottish freedom of information commissioner, whose office has yet to be established. Therefore, it will be some time before the code is issued. I am not suggesting that we are putting the matter to one side—far from it—but we have not developed our thinking on the code to the same extent that we have developed the bill itself.

The Executive has undertaken in relation to a number of pieces of legislation to produce draft codes before the end of stage 2 of the legislative process. For example, the Community Care and Health (Scotland) Bill will be implemented through regulations and the Executive has promised to produce the main regulations before the end of stage 2. Have you given any thought to producing draft regulations under the Freedom of Information (Scotland) Bill before we reach the end of stage 2? If you do not want to commit yourself today, could you give the convener an answer later?

I am grateful for that question, as it covers an issue that I should have raised in response to Mr Matheson's question. As far as the parliamentary process is concerned, whether or not the Executive engages in a traditional 12-week public consultation exercise on the codes, our intention is to support stage 2 scrutiny of the bill by making drafts of the codes available. That is as far as I can commit the Executive today, but the minister may wish to go further. I hope that that commitment is reasonable and that making the drafts available will assist the stage 2 process.

During the consultation on the draft bill, some consultees criticised some of the exemptions in part 2. Were changes made to part 2 following the consultation? Are there areas, which perhaps we have not covered, in which the consultation process had an effect, or did nothing much change? If I were in the industry, I could have researched the matter myself. I suppose I could work out the answer, but it would be easier if you just told me.

Are you interested specifically in whether we amended any of the exemption provisions?

Yes, but in more general terms, what did the consultation process achieve?

The short answer to your first question is yes. The consultation led to changes to the draft bill. We have summarised those changes in the note that we provided for the clerk.

I shall give an example of the changes that we made to the exemption provisions. In direct response to a detailed submission from the Campaign for Freedom of Information in Scotland, we adjusted two subsections that gave exemption to investigations. We adjusted one subsection that dealt with information obtained from informants to bring the subsection into line with the approach adopted in the UK act, which the campaign had urged us to follow. We narrowed the exemption that was provided by a second subsection on investigations into the cause of death to tie the exemption to investigations initiated by the Procurator Fiscal Service.

Consultee comments were also taken on board through other, perhaps more minor, tweaks and adjustments. Although we initiated some technical adjustments to pick up areas of further work, adjustments were generally made in direct response to the consultation.

I appreciate that you gave us a note of the changes, but I thought it appropriate to put on the record the fact that those changes had been made.

I want to ask two other things, one of which seems quite minor. The bill has various time limits for applications and appeals and gives the Scottish ministers power to alter those by regulation. Speaking with my subordinate legislation hat on, I am cynical about that sort of thing. Why is it thought necessary for the minister to be able to change by regulation the time limits that the Parliament has laid down?

Interestingly, we included that provision in response to comments received in the consultation. We have not done exactly what people requested, but we have sought to address people's concerns by introducing the provision to allow time periods to be amended. What I mean by that is that we received contradictory representations. For example, some people thought that the period of 20 working days within which public authorities would have to respond was too long; others thought that it was too short.

We also received a number of representations on the provision that requires an applicant who is dissatisfied with the response to request an internal review by the public authority within 20 working days. Rather than make a series of complicated provisions to allow those time periods to be varied, we have left them as they were in the draft bill and added a provision that will allow them to be adjusted in the light of experience. I understand the concern that ministers may simply extend all the time periods—perhaps that will be examined in more detail by the Subordinate Legislation Committee—but our genuine intention was to try to address the concerns that were raised in the consultation.

I have one final question before we finish. In the consultation process, mention was made of a "purpose clause". A number of the consultees were quite keen on that. The inclusion of a purpose clause might not make much difference, but one union summed up the argument in favour of such a clause with the comment that, although the draft bill

"establishes the unambiguous principle ... the inclusion of a purpose clause was regarded as an opportunity to set down clearly the objectives of the legislation and to influence its interpretation."

I agree with John St Clair that it is the nature of the process that the courts will eventually consider the matter, but why was it not thought a good idea to have such a clause in the bill?

Ministers considered the inclusion of a purpose clause very carefully, but concluded that it was neither appropriate nor necessary. They considered that the Executive's policy was clear and that the bill reflected that policy. The bill was designed to give precise effect to that policy.

The principal concern was that the inclusion of a purpose clause would set out broader—and necessarily less precisely defined—policy objectives that might upset the careful balance that is found throughout the bill and might result in the legislation having a more uncertain effect. At the end of the day, it is equally foreseeable that the purpose clause could also act to the detriment of the applicant. For example, it might have allowed a public authority to argue that the provision of requested information was outside the legislation's defined purpose. The purpose clause was not included to ensure clarity in the policy in the bill.

The policy was to make the bill as carefully drafted and calibrated as possible, so that its main purposes were clear. We think that that has been done. Also, one of the main purposes of the bill is expressed in the long title. It is thought that, together, those are more than adequate. To put one single purpose in the bill could easily, as Geoff Owenson said, have had the effect of limiting the bill and closing off purposes that could be construed from the bill, which we would not want to do.

It might have done more harm than good.

Yes.

I am finished. I hope that everyone else is finished, it being two minutes past four. I thank the witnesses.

The next item on the agenda is consideration of our forward work programme. I am afraid that we are moving into private session to do that.

Meeting continued in private until 16:16.