Public Records (Scotland) Bill: Stage 2
I open the 7th meeting in 2011 of the Education, Lifelong Learning and Culture Committee. I remind all those present that mobile phones and BlackBerrys should be switched off for the duration of the meeting.
The first item on our agenda is the committee’s consideration of the Public Records (Scotland) Bill at stage 2. First, I apologise to the Minister for Culture and External Affairs and to her officials for keeping them waiting and for the late start to the committee. I am pleased to welcome to the committee Fiona Hyslop, the Minister for Culture and External Affairs. Ms Hyslop is joined by George MacKenzie, who is the keeper of the records of Scotland, and Bruno Longmore, who is the bill team leader, from the National Archives of Scotland. They are joined by Lindsey Henderson, who is a principal legal officer for the Scottish Government, and by Willie Ferrie from the office of the Scottish parliamentary counsel. I thank you all for your attendance.
Section 1—Records management plans
Amendment 29, in the name of Elizabeth Smith, is grouped with amendments 30, 32, 38, 40 to 42, 44, 5A, 5B, 45, 46 to 48, 7A to 7E, 49 to 54, 57 and 59. I draw members’ attention to the pre-emption information on the list of groupings.
I am pleased to speak to what I consider to be probing amendments. I do so following one or two concerns that I had at stage 1 and the representations that some voluntary sector groups and the Convention of Scottish Local Authorities have made to me since that time, although I also state my support for the main principles of the bill and for the Scottish Government’s desire to ensure that there is improved record keeping across Scotland, which will best be achieved by more transparent, democratic and efficient means of storing relevant information.
Although I believe that those principles are central to the Scottish Government’s thinking, I would like further assurance—especially in respect of situations in which it has been proved that potential difficulties exist because there has been either an absence of records or ineffective record keeping—that the relationship between the keeper of the records of Scotland and public authorities will be one of mutual agreement, rather than one that may, in certain circumstances, involve a more top-down approach, thus denying the relevant authorities sufficient scope to contribute to the debate about what constitutes best practice. In such situations, it is essential that there is complete clarity about the process and that, through the consultative process, all stakeholders in promoting good record keeping are in total agreement—I have chosen those words carefully—about the way forward. It is imperative that those who are responsible for keeping records are part owners of the process rather than, as they might be in some circumstances, on the receiving end of instructions about how records should be kept. The Scottish Government is probably extremely well intentioned in that respect, but I would like the minister to provide clarification.
I move amendment 29.
I speak in support of Elizabeth Smith’s amendments. The key point about the amendments is that they would improve the tone of the bill and strike the right balance between working with the voluntary sector and local authorities, and applying actions or telling them what to do. My reading of the amendments is that, in effect, they will not make much difference, in the sense that they will not limit the power of the keeper or of the Government to improve record keeping, and that they could, therefore, be accepted without difficulty. I would welcome the minister’s comments on that.
I will respond to all the amendments in the group, with the exception of amendment 42, to which I will return later. Elizabeth Smith has made some important points. I hope that, in my letter to the committee following stage 1, I made it clear that our intention is that authorities should be fully involved in decisions by the keeper, as she suggests.
Continued dialogue with stakeholders throughout the process has resulted in consensus on a number of issues. However, I am aware, as are members of the committee, that the issue of the keeper's powers to approve and reject an authority’s records management plan has remained a concern, particularly for COSLA.
As has been indicated, the amendments would result in a change in terminology. They would not alter the position of the keeper, who would still need to be content that records management plans that were submitted to him made proper arrangements for the management of records. If he was not content, he would be able to return them, in accordance with section 4(6).
Elizabeth Smith’s amendments are consistent with the spirit of the Government’s amendments to the terminology in sections 6 and 7—to which we will come later—in that they, too, change the language of the bill to focus on continuing improvement rather than on failure. To that end, I support her amendments on the change of language. I intend to return at stage 3 with some minor amendments in relation to terminology.
Amendment 42 proposes to delete section 4(4). The amendment does not relate to a change in terminology. Section 4(4) provides that it is for the keeper to determine what constitutes “proper arrangements” in any particular case. If the subsection were removed, the keeper would still have to assess whether a draft records management plan made proper arrangements for the records that it covered. If it did not make such arrangements, he would have to return the plan to the authority under section 4(3)(b), but amendment 42 would remove a provision that makes it clear that the keeper’s judgment of what he considers proper arrangements should be made on a case-by-case basis. That issue came up at stage 1. We do not want a one-size-fits-all proposal.
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Guidance and the model records management plan will be relevant in determining whether a particular plan makes proper arrangements for the records of a particular authority, but guidance alone cannot provide the answer because what is required is a case-by-case judgment. The keeper must also take the individual characteristics of an authority and its records into account when deciding whether the plan that is proposed by the authority will make proper arrangements for its records. That is why amendments 4 and 5, which we will come to later, will require the keeper to take into account the nature of an authority and its records and any representations from the authority when deciding whether to agree or return plans. I think that that is what the committee wanted at stage 1. The keeper needs to take both general guidance and individual circumstances into account in making decisions, thereby ensuring there will not be a one-size-fits-all approach. Amendment 42 gives the opposite message and could suggest that a one-size-fits-all approach is appropriate.
I therefore ask Elizabeth Smith not to move amendment 42. However, the amendments on terminology go in the direction that we all want to take.
That is very helpful. We are more or less on the same page. As Ken Macintosh said, it is also a matter of tone. I note what the minister said about amendment 42, which we will come to a bit later.
Amendment 29 agreed to.
Amendment 30 moved—[Elizabeth Smith]—and agreed to.
Amendment 1, in the name of the minister, is in a group on its own.
Amendment 1 addresses the issue of how risk should be taken into account in records management planning. It makes it clear that the assessment of risk is primarily a matter for authorities when deciding how to manage their different records.
Section 1(1) places a duty on named public authorities listed in the schedule to prepare records management plans that set out proper arrangements for management of their public records.
Amendment 1 makes it clear that an authority’s records management plan may make different provision for different kinds of public records and that, in doing so, it may take account of the different levels of risk associated with management of different kinds of records. That should be done according to the authority's own assessment of the risks relating to their management.
For example, every records management plan will include a retention schedule and an information security policy. The retention schedule will set out different periods for how long different categories of records need to be retained—whether they can be destroyed after very short periods or need to be kept for longer. The information security policy will set out the rationale for assigning different security markings for different categories of records, depending on the sensitivity of the information that they contain.
Amendment 1 makes it clear that an authority should take its own decisions about risk and apply them as necessary. For example, an authority will be empowered to assess risks over, say, the loss of records about vulnerable people, as against the lesser risk over the loss of records about the purchase of library books.
Amendment 1 addresses concerns that have been raised by the voluntary sector and COSLA that the bill should focus on records that are considered to be high risk. It recognises, however, that records management plans need to address all of an authority's records. It allows authorities to use their own expert knowledge when making decisions about different types of records, determining their status and whether different management regimes might be appropriate. Those decisions could take into account other statutory obligations already in place, such as The Looked After Children (Scotland) Regulations 2009.
I move amendment 1.
I welcome amendment 1. The issue raised concern among all members of the committee and our witnesses at stage 1. Although there might be some concern among the voluntary sector that the amendment does not quite go far enough, it is certainly a step in the right direction and we should support it.
Minister, do you wish to wind up?
No. I just acknowledge that Ken Macintosh and Claire Baker raised the issue at stage 1. One of the reasons why we lodged amendment 1 was to reconcile matters that people had raised.
Amendment 1 agreed to.
Amendment 31, in the name of Ken Macintosh, is grouped with amendments 2, 2A, 36, 39, 43, 56, 16, 16A, 17, 17A, 18 and 58. I draw members’ attention to the pre-emption information that is also shown in the groupings.
I welcome the amendments that the Government has lodged—amendments 2, 16 and 17—which will ensure that the keeper consults widely. That is something that the Convention of Scottish Local Authorities and the voluntary sector in particular will welcome. I am pleased to support the amendments. Amendments 2A, 16A and 17A are designed simply to build on the Government’s amendments by including a duty to consult contractors, which will ensure that voluntary sector bodies are consulted, as well as the local authorities.
It is important that, when the keeper draws up the guidance, he deals not only with the local authorities but with others who may be directly involved. We heard from organisations including Barnardo’s that they already have quite robust systems of record keeping. The guidance that is drawn up must have regard to their systems as well as to the systems of local authorities. Amendments 31 and 56 build on that by suggesting that there should be guidance about the relationship between local authorities and the voluntary sector, which the voluntary sector in particular flagged up. The voluntary sector is concerned that risk-averse local authorities will offload all of their problems onto voluntary sector contractors without taking due regard of their needs. Amendments 31 and 56 suggest that any guidance that is drawn up specifically covers that relationship.
Amendment 36 is simply a consequential amendment that will ensure that the references to contractors are relevant to the whole of part 1, rather than only to one section.
Amendments 39 and 43 will improve the process for submitting plans for agreements and ensure that that is covered by guidance, too.
Amendment 55—sorry, that is for the next section.
You are jumping ahead of yourself.
Indeed.
Amendment 58 would remove section 9. The amendment was suggested because that section is seen as being unnecessary because, if we put in a lot of information about how guidance should be drawn up, we do not need a separate section that deals with it. However, ministers might wish to have the power to add further guidance at a later stage.
I move amendment 31.
Section 1 is important and there are a lot of amendments, so I ask members to bear with me.
The Government amendments in the group address concerns that the keeper should involve authorities and other stakeholders when preparing guidance and the model records management plan. They will require the keeper to consult and to have regard to views that are expressed before issuing those documents.
Amendments 31 and 56, in the name of Ken Macintosh, would add explicit references to contractors’ records in a number of provisions and would limit the keeper’s power in certain areas. I am concerned that some of those references could have unintended consequences and that others could be difficult to work with in practice. I will first address the issues about contractors before addressing the amendments on consultation.
Under section 1(3), the keeper must issue guidance to authorities about the form and content of records management plans. Under section 8, he must also issue a model records management plan. Guidance that is issued under section 1(3) and the model plan already have to cover contractors’ records, because those are a form of public record and each authority’s records management plan will have to cover all the authority’s records, including its contractors’ records.
In practice, RMPs will need to set out how contractors’ records are to be managed. That is likely to be closely based on the contractual terms that are agreed between the authority and the contractor. The keeper must return a proposed plan if it fails to make proper arrangements to manage contractors’ records. That might happen if, for example, the plan suggested that contractors’ records should be retained for an unreasonable period.
Amendment 31 would require the keeper to include in the guidance
“information on how such plans will relate to functions delivered on behalf of authorities by contractors.”
Amendment 56 would require the model records management plan to
“cover the relationship between an authority’s records management plan and that of a contractor carrying out the authority’s functions.”
There is a delicate balance to be struck. Although the guidance and the model plan will cover contractors’ records, I do not consider it appropriate for the keeper to go further and to seek to dictate how authorities and contractors regulate their relationships. Amendments 31 and 56 would result in the keeper producing an extraordinary amount of guidance that would dictate the relationship between authorities. It is important to reflect that the issue is not just about child care in the voluntary sector. It would require in law guidance that dictated the contractual relationships of authorities including prisons, health boards and the police. The list of authorities that are covered in the schedule is extensive.
As drafted, the bill places the onus on authorities to manage their records. It does not impose duties on contractors and nor does it interfere with, or give the keeper power to interfere with, existing relationships between public authorities and contractors. The terms on which a contractor may carry out functions on behalf of an authority are for those two parties to agree separately.
As the guidance and the model RMP already cover contractors’ records, I am concerned that amendments 31 and 56 seek to go further and would require the keeper to instruct authorities and contractors on how their relationship should work. That runs contrary to the arguments that Elizabeth Smith made earlier. That situation could be seen as the keeper dictating contract terms and interfering with the freedom of authorities and contractors to negotiate their contractual relationships. That is against the light-touch intentions of the bill.
In addition, amendment 56 refers to the records management plans of contractors, which is misleading. The bill does not require contractors to have records management plans although, as Ken Macintosh said, many do. In practice, contractors might decide to have plans, but that is a decision for them and will not be a result of the bill. Instead, an authority must ensure that records that relate to functions that are carried out on its behalf by contractors are managed in accordance with the authority’s plan.
Rather than dictating contract terms, I intend the keeper to facilitate discussions between authorities and contractors about the management of contractors’ records. The discussions on those issues will take place in the newly constituted stakeholder forum. Detailed contractual terms will still be for contractors and authorities to agree, but the keeper will be on hand to provide advice and assistance on the management of contractors’ records. I therefore invite Mr Macintosh to seek to withdraw amendment 31 and not to move amendment 56.
I turn to amendments 2 and 16 to 18, which relate to consultation. Amendments 2 and 18 will require the keeper to consult on the guidance that is issued under sections 1(3) and 9. He must consult the authorities that he considers will be affected by the guidance and such other persons as he considers appropriate. That will cover consultation of stakeholders, including contractors. The amendments also require the keeper to have regard to the views that the consultees express, and they clarify that the keeper may issue different guidance in relation to different authorities, where appropriate.
Amendments 16 and 17 make similar provision in relation to the model records management plan. They require the keeper to consult on drafts of the first model plan and revised versions. He must consult each authority on the first model plan, because each will be affected but, after revisions, he must consult only authorities that he considers will be affected. As with amendments 2 and 18, he must also consult such other persons as he considers appropriate, which again includes stakeholders and, importantly, he must have regard to the views that are expressed.
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Amendments 2A, 16A and 17A would amend amendments 2, 16 and 17 to provide an additional duty on the keeper to consult bodies representing contractors on the guidance under section 1(3) and on the model plan. I am concerned that the duty to consult contractor’s bodies would be difficult to operate in practice. It would require the keeper to identify contractors for more than 200 bodies, to find out which bodies represented the contractors and then to decide whether they need to be consulted. The amendments would require consultation of such bodies representing contractors as the keeper considers will be affected by the guidance or the model plan, but the bill does not place any duties or obligations directly on contractors and those bodies will not be obliged to have regard to the guidance or the model plan. As a result, they will not be directly affected by the guidance or the model plan and the keeper will not be able to assess whom to consult. There is a danger that these amendments to amendments would add lots of bureaucracy but add no value to front-line services, which is a concern that the committee expressed at stage 1.
That is not to say that those bodies would not have an interest in the guidance and the model plan—Ken Macintosh is right. They would clearly have an interest, in the sense that the authorities that they deal with would have to have regard to the guidance and the model plan. That is why amendments 2, 16, 17 and 18 already provide for contractors’ organisations to be consulted by requiring the keeper to consult
“such other persons ... as the Keeper considers appropriate”.
I therefore invite Mr Macintosh not to move amendments 2A, 16A and 17A but to support amendments 2, 16, 17 and 18.
Amendments 39 and 43 would amend section 4, which deals with the keeper’s role in agreeing to plans that are submitted by authorities. Amendment 39 would replace the keeper’s power to make a separate determination about the form and manner of the submission of particular plans with a requirement to comply with guidance under section 1. Section 4(2) is intended to give the keeper flexibility about the administrative arrangements for the submission of plans. It is not a power to determine the content of plans and could not be used as a means of placing undue burdens on authorities. Replacing that with a reference to section 1 guidance would reduce the keeper’s ability to make individual decisions, in conjunction with authorities, about what was appropriate in different cases.
Amendment 43 would amend section 4(4) by requiring decisions about whether a proposed plan made “proper arrangements” to be based solely on guidance. The concept of proper arrangements is key to the keeper’s decision about whether to agree any records management plan. However, it would be inappropriate to rely solely on guidance to assess whether a particular plan made proper arrangements for the records of a specific authority. Ken Macintosh’s amendments would diminish the keeper’s ability to be responsive to individual authorities’ needs—another theme that came through at stage 1. Instead, the keeper should take into account the general guidance and model plan and the individual characteristics of the authority. Section 4(5) already requires the keeper to take the guidance and model plan into account. Amendments 4 and 5, which we will come to in a later group, will also require the keeper to take into account the individual characteristics of an authority and any representations that are made by it.
Together, those provisions will ensure that any decision about whether a plan makes proper arrangements will be based on the correct combination of general guidance and individual circumstances. Like amendment 42, amendment 43 would prevent the keeper from making the necessary case-by-case assessment. If the amendment were accepted, it would suggest that the keeper ought to adopt a one-size-fits-all approach in deciding whether to agree or return records management plans. It is important that the keeper retain the power to make case-by-case decisions.
Amendment 58 seeks to remove section 9, which allows the keeper to issue guidance about authorities’ duties under the bill and requires authorities to have regard to it. The power is likely to be used to promote examples of best practice and generic records management tools that are drawn up by sector professionals, as well as to give guidance on the reviewing of records management plans. It is clear from responses to the original consultation and from discussions with stakeholders that the dissemination of guidance will be crucial to successful implementation of the bill. The power to issue guidance under section 9 is a key part of that, which is why we are concerned about the proposal to remove it. In its stage 1 report, the committee was supportive of the need for guidance, but amendment 58 runs counter to that shared intention. Any guidance that is issued under section 9 or any other sections will be developed in partnership with stakeholders. Amendment 18 will also require the keeper to consult before any such guidance is issued. Removing section 9 would not prevent the keeper from issuing non-statutory guidance about authorities’ duties, but they would have no obligation to have regard to it. That would lead to inconsistency of practice when the intention is to develop consistent standard practice across sectors.
I know that this has been an important area of discussion and debate, but I hope that I have been able to explain the problems that would arise from some of the amendments. Accordingly, I ask Ken Macintosh to seek to withdraw amendment 31 and not to move amendments 2A, 36, 39, 43, 56, 16A, 17A and 58.
No other member has a comment to make, so I ask the minister whether she has anything further to add.
No, convener. I think that I have said enough about that group.
I am very glad to hear that.
I welcome the minister’s lengthy comments because these matters are important, particularly for the voluntary sector and public authorities, which have some concerns about the relationship that we are discussing. In fact, this is all about the relationship between the keeper, the records management plan and the authorities and it is important that we get that balance right.
I have to say that I have been quite convinced by the minister’s arguments on all points. For example, the fact that amendment 58, which seeks to remove section 9, would remove not the keeper’s power to issue guidance but authorities’ obligation to have regard to it does not strike me as sensible, so I appreciate the minister’s argument in that respect.
As for amendments 39 and 43, which seek to remove the phrase “may determine”, I think that the intention behind them was all about tone and terminology, but the minister has assured the committee that the keeper will take others’ views into account in submitting records management plans. That is the important point. In fact, I was also reassured to hear that the stakeholder forum is now up and working, given the initial concerns about that. I point out, though, that none of my amendments is designed to make the bill any more unwieldy or any more awash with guidance or bureaucracy than it already is, which in itself is quite a strong argument in favour of not being overly explicit about some of the guidance that will be necessary.
On amendments 2A, 16A and 17A, the minister said that the keeper would find it difficult to identify the bodies that should be consulted and assured us that amendments 2, 16 and 17 already cover the issue in their use of the phrase
“such other persons ... as the Keeper considers appropriate”.
However, if I may, I will rethink the matter before stage 3 to ensure that we and the voluntary sector are happy with that.
On amendments 31 and 56, the minister has suggested that guidance will already cover contractors’ records. However, we do not wish the keeper to impose duties in that respect; in fact, this is not about imposing such duties or interfering in that relationship. We want to ensure that the relationship is right, but it is not for the keeper to impose one view on all local or public authorities.
On that basis, I am happy to seek leave to withdraw amendment 31, not to move my other amendments in the group and to support the Government’s amendments.
Amendment 31, by agreement, withdrawn.
Amendment 2 moved—[Fiona Hyslop].
Amendment 2A not moved.
Amendment 2 agreed to.
Amendment 32 moved—[Elizabeth Smith]—and agreed to.
Amendment 33, in the name of Elizabeth Smith, is grouped with amendments 3, 34 and 35.
The amendments in my name are probing amendments, and I have heard the minister’s very helpful comments.
Amendments 33 and 34 reflect the similar but not identical concerns that I spoke about earlier. We could end up in a situation in which the keeper and the relevant authorities are in disagreement about the way forward when each has chosen a different means of approaching best practice. That might cause confusion or in some cases a dispute, especially if a third party or contractor is involved.
I think that the Scottish Government intends to provide a mechanism by which there could be a common plan, but it would be helpful if we had the minister’s reassurance on that.
I move amendment 33.
Amendment 3, in my name, will help to address voluntary bodies’ concerns that they will have to work with multiple records management plans for the different authorities with which they work, and the local authorities’ need for flexibility in their plans. We need a balance between those two interests.
Amendment 3 will make it easier for groups of authorities to choose to have common records management plans for separate functions. That approach could be used, for example, in relation to child care functions. I will come back to that amendment later.
Amendments 33 and 34 would remove the keeper’s ability to require authorities to use separate plans or common plans, and leave it solely to authorities to decide. The keeper would still have to agree to their proposed use of such plans, but would no longer have the power to require authorities to use separate or common plans if the authorities did not ask to do so.
The power to require the use of common plans, and common plans for separate functions, is considered necessary so that the keeper can deal with voluntary sector concerns about dealing with a number of different plans in relation to the functions that those bodies carry out on behalf of public authorities. That is where the issue of balance between the two sets of interests comes in.
The power to require separate plans for separate functions may also be required in the case of the Scottish ministers, who are listed as one authority in the schedule to the bill but whose functions are wide ranging and disparate.
Amendment 3 addresses concerns that child care organisations in the voluntary sector have raised about having to work with a number of different plans for different authorities, which they say would impose a huge administrative burden on their organisations and take staff time away from the provision of front-line services.
The intention behind the bill as it is drafted is to allow or require groups of two or more authorities to have a common records management plan, which will reduce the likelihood of the scenario that concerns the voluntary sector. Amendment 3 gives groups of authorities additional flexibility to decide whether to make use of separate plans, common plans for all functions or common plans for separate functions.
Section 1(5) currently requires an authority to have separate plans for separate functions, but only on the keeper’s initiative. I have explained just now why it is important for the keeper to retain that power. Amendment 3 empowers local authorities by allowing them to initiate that themselves and to choose to do it with the keeper's approval or, as amendment 33, in the name of Elizabeth Smith, suggests, with the agreement of the keeper.
The result would be that, through a combination of subsections (5) and (6), a group of authorities would be able to propose a common plan for some of their functions and separate plans for others. For example, local authorities could together have a common plan for functions that deal with looked-after children while they each have their own separate plans for the rest of their functions. That will remain dependent on the keeper’s approval—or rather, given the amendment to which we have just agreed, the keeper’s agreement—although it will be for the authorities to make their own assessment of where it is appropriate to have common plans. We are trying to give local authorities the power that they need while balancing the interests of the voluntary sector.
Amendment 35 addresses a similar issue to amendment 3 and would clarify that authorities can have common plans for some functions and separate plans for remaining functions. Amendment 35 is not necessary, because amendment 3 already makes it possible while also giving authorities increased flexibility to ask to have separate plans. We have come at the same issue, and I appeal to the committee to agree that amendment 3 covers all the interests, in which case we do not necessarily need amendments 33, 34 or 35 in that regard.
The minister has already addressed my concerns. We are anxious that when voluntary sector bodies provide common services across different authorities, they do not have a different plan for each one, and that the common plan would be not for authorities, but for the function. Assuming that amendment 3 covers that, I am happy.
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The minister’s clarifications have been helpful. As Ken Macintosh said, it is important that the voluntary sector has that assurance. On the basis that amendment 3 covers the issue, I seek leave to withdraw amendment 33.
Amendment 33, by agreement, withdrawn.
Amendment 3 moved—[Fiona Hyslop]—and agreed to.
Amendments 34 and 35 not moved.
Section 1, as amended, agreed to.
Section 2 agreed to.
Section 3—Meaning of “public records”
Amendment 36 not moved.
Amendment 37, in the name of Elizabeth Smith, is in a group on its own.
As things stand, the bill gives a blanket definition of public records which, as I understand it, encompasses all information that is generated by or on behalf of a public authority or a contractor, plus any information that is generated by another body and held by the public authority or the contractor.
Some voluntary sector groups have said that they are concerned that any information that they hold for virtually any purpose or as the result of a business contract could be deemed to be a public record, when that has traditionally been seen as being more private information.
The Scottish Government has stipulated clearly and carefully that the bill is about the good management of public records rather than about what is or is not held on record. However, there is some concern about the potential for all information to be treated under the same definition, irrespective of its importance or relevance. I understand that that concern was part of the reason why the Scottish Government defined the term “significant risk”, which is an important definition. However, I wonder whether that goes far enough in addressing every concern about the relative merits of different types of information and the fact that the keeper could be seen to have considerable powers, even in situations outwith the definition of significant risk. We are aware that some voluntary sector groups have expressed concerns about additional bureaucracy and further costs. I seek some information from the minister on that point.
I move amendment 37.
Amendment 37 seeks to remove a crucial part of the bill and cuts to the heart of the bill, which is about the management of records, not the content of records. The definition of public records applies only to this bill and to the management of said records.
Section 3 defines “public records” for the purpose of part 1. The definition is essential and intentionally broad. Public records are the records that must be covered by the records management plan for an authority. Removing the section would leave the bill without a definition of public records and would strike at its very core. A definition is necessary to ensure that those who are responsible for managing records know which records fall within the scope of the bill, and the obligations that will be placed on them. A definition is also necessary to ensure that the keeper knows which records should be covered by an authority’s records management plan and can assess whether that plan makes proper arrangements for the authority's records. It is important for the bill to be clear about which records are covered in order to prevent confusion. All public authorities need to be accountable with regard to the range of services that they provide, and to manage all their records properly.
Removing the definition would mean that, although authorities would have a duty to draft and implement a records management plan and the keeper would have a duty to consider whether those plans make proper arrangements for managing records, neither the authorities nor the keeper would be able to judge which records should be covered. The definition is broad to ensure that all records that could be created or held are covered, so that vital records are identified and retained for their correct periods, and time and resources are not wasted in storing less important and ephemeral records. The definition also helps to future-proof the bill, as it must cover records in any format.
The list of authorities that is included in the bill focuses on those record creators that are most closely associated with central Government, such as agencies and public bodies. It also includes local authorities, which are major record creators and play an important role in the provision of services. Records relating to functions that contractors provide are included, to address a key element of the Shaw report. Importantly, only those records that relate to functions that are carried out on behalf of public authorities are covered.
Both COSLA and the voluntary sector have argued that the bill should focus only on high-risk records. Managing only certain records in an organisation is not good records management practice, and the keeper would find it difficult to approve a records management plan that took that approach. It would also create uncertainty about which records were covered and who should decide whether they were low or high risk. As we have debated in the committee previously, that should not be a job for the keeper. Instead of our excluding types of records from the bill, authorities should assess levels of risk and make provision in their records management plans to manage different records differently; they are the ones who can assess the risk element. Earlier, we debated amendment 1, which makes clear that that is how risk should be addressed in records management plans.
The bill would be technically unworkable without a definition of public records. Elizabeth Smith is correct to explore the issues around that, because it has been a central theme in debates. However, unless we have such a definition, it will not be clear to authorities or to the keeper whether a records management plan covers the right records. I invite Elizabeth Smith to withdraw amendment 37, having considered the matter and heard some of the issues that have been raised.
I have nothing further to say. The minister’s comments have been helpful.
Amendment 37, by agreement, withdrawn.
Section 3 agreed to.
Section 4—Approval of plans
Amendments 38 and 39 not moved.
Amendments 40 and 41 moved—[Elizabeth Smith]—and agreed to.
Amendments 42 and 43 not moved.
Amendment 44 moved—[Elizabeth Smith]—and agreed to.
Amendment 4, in the name of the minister, is grouped with amendment 5.
Amendments 4 and 5 will address concerns that the keeper might impose a one-size-fits-all approach when exercising his powers under the bill. The intention has always been that the keeper will work closely with authorities to ensure that the records management regime is applied in a way that takes account of their particular needs and respects the judgments that they make about risk. The amendments will make that intention clearer.
Section 4 sets out clear provision for the keeper to agree or return authorities’ records management plans. Subsection (5) describes the matters to which the keeper must have regard when deciding whether to agree a plan. In deciding whether to agree a plan, the keeper will assess whether it makes proper arrangements for the management of an authority’s records.
Continued dialogue with stakeholders throughout the process has resulted in consensus on a number of important issues, but the issue of the keeper’s powers to agree or return an authority’s records management plan has remained a concern, particularly for COSLA. At the stakeholder forum on 8 February, COSLA representatives expressed their view that having regard to the guidance and the model records management plan was not sufficient for the keeper to determine whether an authority was making proper arrangements for the management of its records. The administrative complexity of local authority organisation means that specific needs and provisions will differ in each authority, and COSLA argued that that needs to be properly reflected in the guidance. The same issues were raised during the stage 1 debate on 10 February.
The bill is sensitive to the individual needs of authorities in relation to their record-keeping requirements. However, I concluded that it would be preferable for it to be adjusted to take account of the genuine concerns that were raised.
Amendment 4 expands the list of matters that the keeper must take into account when deciding whether to agree an authority’s plan. It requires the keeper to have regard to the nature of an authority and its public records as well as to any representations by the authority.
Amendment 5 places an obligation on the keeper when he is considering returning a plan to notify the authority so that it has an opportunity to make representations. The keeper must have regard to such representations before making a final decision.
A key element of the keeper’s decision will be an assessment of whether a draft records management plan would provide proper arrangements for the management of an authority’s records. As the bill is drafted, he must take guidance and the model plan into account in reaching a decision. The amendments will further require him to take other things into account, such as the nature of the authority concerned, the nature of the public records that are covered by the authority’s plan and any representations made by the authority. The amendments make it clear that the keeper will not adopt a one-size-fits-all approach to records management planning and must instead take into account the distinctive needs of the individual authorities that are listed in the schedule. He must also take account of an authority’s own assessment of how it should approach the risks that it faces in records management. In that sense, the amendments complement amendment 1, which we previously debated. The amendments will also prevent the keeper from returning a plan without discussing the issues with the authority concerned. It is hoped that they address the concerns that COSLA in particular raised.
I move amendment 4.
The amendments are welcome. They help to address the issues of risk, balance and proportionality, and they address the relationship between the keeper and the public authorities without going down the line of being explicit about the nature and content of guidance, which we debated earlier. The committee should support the amendments.
Amendment 4 agreed to.
I invite the minister to move amendment 5.
I am sorry, but I am finding it difficult to hear you, convener. I think that it is my hearing.
I am sorry. I am almost deaf with the cold, so I am struggling as well. I am not sure how loudly I am speaking.
Amendment 5 moved—[Fiona Hyslop].
Amendments 5A and 5B moved—[Elizabeth Smith]—and agreed to.
Amendment 5, as amended, agreed to.
Amendments 45 to 47 moved—[Elizabeth Smith]—and agreed to.
Section 4, as amended, agreed to.
Section 5—Review of plans
Amendment 48 moved—[Elizabeth Smith]—and agreed to.
11:30
Amendment 6, in the name of the minister, is grouped with amendment 7.
Amendments 6 and 7 will address the concern that the keeper might exercise his scrutiny powers in a way that places an excessive burden on authorities. The keeper must act reasonably when exercising any of his powers, but the amendments will ensure that he cannot require authorities to review and resubmit their plans too often.
Section 5 places an obligation on an authority to review its records management plan and to submit a revised plan for approval by a date that the keeper sets. Nothing in the bill restricts how often the keeper can require such a review, although the keeper would of course use that power reasonably.
Amendments 6 and 7 will restrict the keeper’s power to require an authority to review and submit its plan for approval. The amendments provide that the keeper must not require a plan to be reviewed less than five years after it was previously approved. The only exception applies when the keeper carries out a compliance review under section 6 and concludes that an authority should review its plan.
I move amendment 6.
Amendment 6 agreed to.
Amendment 7 moved—[Fiona Hyslop].
I suggest that amendments 7A to 7E should be moved en bloc.
That seems sensible.
Amendments 7A to 7E moved—[Elizabeth Smith]—and agreed to.
Does the minister wish to press or withdraw amendment 7?
I will press it.
I know that asking a minister such a question is unusual, but I did so because the amendments to amendment 7 are extensive.
Amendment 7, as amended, agreed to.
Amendments 49 to 54 moved—[Elizabeth Smith]—and agreed to.
Section 5, as amended, agreed to.
Section 6—Compliance reviews
Amendment 8, in the name of the minister, is grouped with amendments 9 to 12, 14, 15 and 20 to 24.
I will speak to amendments 8 to 12, 14, 15 and 20 to 24—I feel an en bloc coming on. These amendments will address concerns that some of the terminology that is used in the bill emphasises failure. The amendments will replace the term “compliance reviews” with “records management reviews” under section 6, and “warning notices” with “action notices” under section 7.
I wish to emphasise that the main focus of the bill is not about scrutiny but about making and maintaining sustainable improvements to public sector record keeping. The proposed scrutiny role for the keeper is intended to work alongside internal assessment and reporting mechanisms within public authorities. Agreement of records management plans will be an initial exercise to ascertain their fitness for purpose. Thereafter, an authority’s records management practices will be reviewed by the keeper only when there are known concerns that the authority is consistently failing in its obligations under the legislation.
COSLA has raised concerns that some of the language used in the bill focuses too much on exposing failure and punishing authorities and says that that runs counter to the stated intention of the bill to foster continuous improvement over time. COSLA points to the terms “compliance reviews” and “warning notices” as being particularly unhelpful.
I agree that it would be helpful to adjust the language of the bill to take account of those concerns and to change the perceived emphasis on failure—that is why I supported the amendments in the name of Elizabeth Smith. Amendments 8 to 11, 20 and 23 will therefore change the term “compliance review” to “records management review”, and amendments 12, 14, 15, 21, 22 and 24 will change the term “warning notice” to “action notice”.
The amendments will not make any substantive change to the effect of the bill, but they are important because they emphasise the policy of partnership and encouraging continuous self-improvement rather than the Government dictating solutions and focusing on failure and punishment. The amendments should be seen in the context of the wider empowerment of authorities as provided by other amendments, including those on consultation and approval of plans that we debated earlier, and those on procedures before action notices can be issued, which we will come to later. The amendments will also complement the amendments that refer to “agreement” and “return” of plans, rather than “approval” and “rejection”, which we discussed earlier.
I move amendment 8.
Amendment 8 agreed to.
Amendment 55, in the name of Ken Macintosh, is in a group on its own.
Amendment 55 is about improving the tone of the bill and rebalancing the relationship between the keeper and public authorities so that the keeper is not so much telling the authorities what to do as working with them to improve records management plans.
Section 6(2) says
“An authority must provide the Keeper with such assistance as the Keeper may require”.
Amendment 55 would change that to say that the authority must provide the keeper with such assistance “as is reasonable”. Public authorities are worried that the wording in the bill as introduced is too open-ended. Amendment 55 will rebalance the provision and limit its scope.
I move amendment 55.
I must say that I was interested to hear the arguments behind amendment 55 because it was not immediately obvious to me what Ken Macintosh intended to achieve. It was helpful to get some sense from him of the issues that he seeks to address.
Amendment 55 would make it explicit that authorities needed only to provide reasonable assistance to the keeper when he carried out reviews under section 6, but it would do so in a way that could undermine the keeper’s ability to carry out effective reviews. Section 6 allows the keeper to review an authority’s compliance with its records management plan. We have previously debated amendments that will rename such reviews “records management reviews”.
Section 6(2) requires authorities to give such assistance as the keeper “may require” in carrying out records management reviews. That might include, for example, providing information or documents. Amendment 55 would replace the words “the Keeper may require” with “as is reasonable”.
The main focus of the bill is not scrutiny but the maintenance of sustainable improvements to record keeping. The proposed scrutiny role for the keeper is intended to work alongside internal assessment and reporting mechanisms in public authorities. An authority’s records management practices will be reviewed by the keeper only if there are known concerns that the authority is consistently failing in its obligations under the legislation, even after it has received recommendations for improvement from the keeper. A formal review will take place only when attempts to resolve issues through informal discussions and collaborative working have not been successful.
The keeper is currently under a general duty, under established administrative case law in relation to statutory duties, to act reasonably when he exercises his powers in relation to any of his functions, including records management reviews. Amendment 55 would go further than the explicit restatement of that duty. The important point is that it would replace the keeper’s ability to require particular assistance with a general duty on authorities to provide reasonable assistance, but it is not clear who would decide what was required in the first instance. It should be for the keeper to decide what assistance he needs—of course, he must do so reasonably, as administrative law requires.
Amendment 55 would therefore make a significant change to the effect of the provision. It could make it difficult for the keeper to carry out meaningful records management reviews in the few cases in which all other routes had failed and it was necessary for him to rely on his formal review powers to address a known records management problem. Amendment 55 would tie the keeper’s hands in the few cases in which all other routes had failed.
I hope that I have explored the issue. The concerns about amendment 55 might not have been obvious to members when they read the amendment. I invite Ken Macintosh to withdraw amendment 55 and reflect on the matter.
I thank the minister for her comments—next time, I will speak to her before I lodge an amendment, to tell her what it is about. She has made it clear that the keeper is already implicitly under a duty to be reasonable, so there is no need for that to be stated explicitly. Also, the replacement of “compliance” with “records management” by amendment 8 affects the tone of section 6. On that basis, I seek leave to withdraw amendment 55.
Amendment 55, by agreement, withdrawn.
Amendments 9 to 11 moved—[Fiona Hyslop]—and agreed to.
Section 6, as amended, agreed to.
Section 7—Warning notices
Amendment 12 moved—[Fiona Hyslop]—and agreed to.
Amendment 13, in the name of the minister, is in a group on its own.
Amendment 13 will address concerns that the bill focuses on scrutiny by the keeper and emphasises failure of, rather than collaboration with, authorities—that is a theme in all the amendments in my name. The intention has always been that the power to issue action notices will be used as a last resort after full discussion with authorities and only when informal attempts to resolve records management difficulties have failed. Amendment 13 will make the intention to involve authorities clearer, by allowing them to make representations before the keeper issues an action notice.
Amendment 13 will empower an authority to make representations about the keeper’s decisions. It addresses the issuing of warning notices by the keeper, which will be renamed “action notices” under amendments 12, 14 and 15, which have been debated. Section 7, as amended by those amendments, will allow the keeper to issue an action notice to an authority when it fails to comply with its duties under the bill.
Amendment 13 will require the keeper to notify an authority of his intention to issue an action notice, to provide an explanation of his reasons for doing so and to give the authority an opportunity to make representations. The keeper must then have regard to any representations before he decides whether to issue an action notice.
11:45
The amendment emphasises that there should be full discussion between the keeper and an authority before the keeper exercises his powers to issue a formal action notice under section 7. It addresses concerns that COSLA raised about the level of the keeper’s power to issue warning notices without giving authorities the opportunity to make representations and is consistent with the underlying aim that the majority of difficulties should be resolved through discussion and co-operation between the keeper and authorities. The bill is not intended to focus on failure, and the keeper’s enforcement powers under section 7 are intended for use as a last resort.
I move amendment 13.
Amendment 13 agreed to.
Amendments 14 and 15 moved—[Fiona Hyslop]—and agreed to.
Section 7, as amended, agreed to.
Section 8—Model records management plan
Amendment 56 not moved.
Amendment 16 moved—[Fiona Hyslop].
Amendment 16A not moved.
Amendment 16 agreed to.
Amendment 57 moved—[Elizabeth Smith]—and agreed to.
Amendment 17 moved—[Fiona Hyslop].
Amendment 17A not moved.
Amendment 17 agreed to.
Section 8, as amended, agreed to.
Section 9—Guidance
Amendment 18 moved—[Fiona Hyslop]—and agreed to.
Amendment 58 not moved.
Section 9, as amended, agreed to.
After section 9
Amendment 19, in the name of the minister, is grouped with amendments 25 to 28.
Amendment 19 addresses a technical issue to do with how the records management duties under part 1 of the bill will apply to records of sheriff courts and justice of the peace courts. It creates a new section that clarifies that sheriffs principal will be responsible for carrying out the management functions for sheriff and JP courts under part 1.
Amendment 25 repeals sections 2(3) and 2A(4) of the Public Records (Scotland) Act 1937, which currently require sheriffs principal to manage records of the sheriff and JP courts that are not transferred to the keeper. Amendments 26 and 27 are consequential on amendment 25.
The effect is that sheriffs principal will remain responsible for the management of sheriff and JP court records, but that responsibility will arise under part 1 of the bill and not under the 1937 act. Amendment 19 makes it clear that, although the sheriff and JP courts are listed in the schedule, the sheriffs principal will be responsible for carrying out functions under part 1.
Amendment 28 is a technical amendment to the long title of the bill in consequence of amendments 26 and 27.
I move amendment 19.
Amendment 19 agreed to.
Section 10 agreed to.
Section 11—Annual report
Amendment 59 moved—[Elizabeth Smith]—and agreed to.
Amendments 20 to 22 moved—[Fiona Hyslop]—and agreed to.
Section 11, as amended, agreed to.
Section 12—Interpretation of Part 1
Amendments 23 and 24 moved—[Fiona Hyslop]—and agreed to.
Section 12, as amended, agreed to.
Section 13—Repeals
Amendment 25 moved—[Fiona Hyslop]—and agreed to.
Section 13, as amended, agreed to.
Section 14—Court records
Amendments 26 and 27 moved—[Fiona Hyslop]—and agreed to.
Section 14, as amended, agreed to.
Sections 15 and 16 agreed to.
Long Title
Amendment 28 moved—[Fiona Hyslop]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the bill. I thank the minister and her officials for attending the committee.
I suspend the meeting for five minutes.
11:52
Meeting suspended.
11:59
On resuming—