Freedom of Information
Our first item of business this morning is a debate on motion S1M-1750, in the name of Mr Jim Wallace, on freedom of information, and on two amendments to that motion.
Openness and accountability are principles that must lie at the heart of government and not least at the heart of our devolved institutions. Open government is a key foundation for the development of a democratic Scotland. To foster open government, to deliver good government and to empower people, the Executive is committed to introducing an effective statutory freedom of information regime. Earlier this month, I published a draft freedom of information (Scotland) bill for consultation and pre-legislative scrutiny. It represents a significant step towards delivering the robust and distinctive freedom of information regime that we believe Scotland deserves.
I will set out the key aspects of our proposals and I am pleased that Parliament is having this opportunity to debate them. I look forward very much to hearing the views of members.
Although some aspects of freedom of information policy are complex, the bill can be distilled down to a set of quite simple principles: a legal right of access to information; a right that is limited only by narrowly drawn exemptions; a rigorous harm test of substantial prejudice and consideration of whether it would be in the public interest to disclose information; and decisions on disclosure being subject to an independent arbiter.
Those are key principles that should underpin an effective freedom of information regime and they are the key principles in our draft bill. Devolution has given us the opportunity to deliver freedom of information legislation that is right for Scotland's people and for Scotland's public authorities, that supports and facilitates a modern, mature and democratic society, and that will improve accountability, empower people and, through improved scrutiny, deliver better government.
The draft bill builds on our proposals published in the consultation document "An Open Scotland", which were broadly welcomed. It is designed and tailored to Scotland's needs. We have also drawn on the knowledge and experience of other countries that are operating progressive freedom of information legislation. I had the opportunity to visit Ireland last summer and to visit New Zealand over Christmas. One of the key messages that has been learned is the importance of planning early for implementation. As members will know, we have already established a freedom of information implementation group to develop plans across the public authorities to ensure successful implementation.
I am pleased that the initial reaction to the draft bill has been positive. It is a distinctive bill and it is geared to Scotland's needs. It is a good bill and it is progressive. It is a draft, intended for consultation, and we will listen to views—including those expressed in this debate—before we introduce a bill to the Parliament, which I expect to do later this year.
The draft bill would, if enacted, deliver an enforceable legal right of access to information held by a wide range of Scottish public authorities. That right would be exercisable by anyone. It would be a right to know and it would not be reliant on establishing a need to know. The freedom of information legislation would be very broad, covering the Parliament, the Executive and its agencies, local authorities, the national health service in Scotland, educational institutions, the police and a number of other public authorities and offices.
Public authorities would be required to disclose requested information, or to provide reasons for not doing so, within 20 days. The consideration of the public interest in disclosing exempt information would also need to be made within 20 days. If an applicant were not satisfied with a response from a public authority, he or she would be able to require that authority to review its decision. If the applicant remained dissatisfied, he or she could appeal to the Scottish information commissioner.
The right of access would apply to all information held, irrespective of its age and form—whether it is recorded in paper files, on computers or in other recorded format. I will provide a few examples, although they do not do justice to the wide range of information that will be covered: information about local services, for example local authority accounts and receipts, information about car parking charges, refuse collection, street cleaning, road maintenance and snow clearing; information about schools, for example how much money is being spent in the classroom and on what, and information that could be used to make comparisons between schools; and information about hospitals, for example numbers of doctors and nurses, the amount of public money being spent and how it is being spent.
All freedom of information laws set out a balance between the rights of applicants to information and the proper protection of sensitive information. The right bill for Scotland will be one that tips the scales decisively in favour of openness. That is precisely what the Executive's draft bill would achieve. In "An Open Scotland", we said that the harm test for withholding information would be one of substantial prejudice. The draft bill retains that robust and demanding test. We also said that public authorities would have to consider the public interest in disclosing exempt information. In almost every case, the draft bill requires such consideration to be given.
I will say a few words about the exemptions in the draft bill. Let me make it clear that they are exemptions and not loopholes, as some have suggested. They operate only in tandem with the demanding harm test and with the public interest test. Perhaps most important, the independent commissioner will act as independent arbiter to decide whether information should be disclosed.
Does the minister accept that section 41 of the draft bill suggests that the appointment of the commissioner would be
"the nomination of the Parliament"?
That effectively means that the commissioner is a ministerial appointment. Will the minister confirm whether that fits in with the European convention on human rights?
I would reject the notion that the choice of commissioner would effectively be a ministerial appointment. Section 41 means what it says: it will be the appointment of Parliament—it will be up to Parliament. I am sure that the Presiding Officer will have a view on how Parliament goes about exercising that important responsibility, perhaps through the Scottish Parliamentary Corporate Body.
I am sure that Mr Gallie will recall that the appointment of the Auditor General for Scotland is made by Parliament. When that appointment was made, I do not think that there was any suggestion that it was a ministerial appointment. It will, properly, be made by Parliament. I do not think that there is any other way in which we can effectively put the commissioner at any more of an arm's length from the Executive.
Given the Parliament's decision last week and the way in which it has effectively been rejected, what price the decision of Parliament?
I think that Mr Gallie is missing the point. I am not sure whether he is suggesting that there is a more effective way of appointing the Scottish information commissioner. I think that those who were involved in the appointment of the Auditor General might take it amiss if it were suggested that that appointment was in any way influenced by Executive pressure or considerations. I am sure that when Parliament comes to appoint the commissioner, it will not be the intention of ministers to exercise any influence, through the corporate body or by means of any other procedures that Parliament wishes to set up.
I should emphasise that a number of the exemptions in the draft bill are technical, such as those relating to information that is otherwise accessible to the public, to information that is shortly to appear in the public domain, or to information that is subject to other access regimes, such as personal information under data protection legislation.
The minister said that the exemptions are not loopholes because the harm test will still apply, but I believe that I am correct in saying that the harm test is deemed to have been satisfied in the case of class-based exemptions. Therefore, with regard to section 28, which deals with policy advice to the Scottish Administration, we are not talking about the application of the harm test because it is deemed to have been satisfied. Why is there an exemption for the policies of the Scottish Administration but not for the policies of, and policy advice to, Scottish local authorities? Why is the Administration treated differently from the administrations in all our councils?
Mr Morgan is right to point out that under section 28 the formulation of Scottish Administration policy is indeed a class-based exemption. In class-based exemptions, it is a rough rule of thumb that substantial prejudice would result from disclosure. Of course, the exemption is still subject to the test of the public interest. It is interesting to look at other jurisdictions, such as New Zealand, where the benefits of confidentiality have been upheld by the commissioner in a number of cases but it has been made clear that the case is still subject to a public interest test. Indeed, there have been cases in which disclosure has been required by the commissioner.
It will be recognised that there is a distinction between civil servants, who are, strictly, the employees of the Crown and work to ministers, and officials of a local authority, who work to the whole council and not solely to the administration. That is an important distinction and it is reflected in the draft bill.
I will comment on a couple of the exemptions, to dispel some misconceptions. What I say will address the point that Mr Morgan made, as it concerns the exemption for the formulation of Scottish Administration policy and, in particular, the non-disclosure of Scottish Cabinet papers, which I note is the subject of Mr McLetchie's amendment.
I believe that the early disclosure of Cabinet minutes and confidential advice to ministers would undermine the frankness and candour of internal discussion and deliberations. The Scottish Executive is not alone in that belief. In Ireland, New Zealand, Australia and Canada, which are often held up as model regimes, cabinet minutes and papers are protected from early disclosure.
Governments require an appropriate degree of privacy to conduct internal debates, to receive advice, to develop policy and to make decisions. Failure to provide adequate protection for those processes would undermine a Government's ability to choose objectively between options and to maintain collective responsibility.
Does the minister take the view that the effectiveness of the Administration in Wales, in which his party is in partnership with the Labour party, is undermined by the principle that that Administration adopts?
I am a great believer in devolution. If Wales wishes to follow a particular course, that is up to it. I saw the most recent copy of minutes that the Welsh Cabinet put on its website; I think that they are not as full in saying who said what as our minutes sometimes are. It should also be remembered that many of the decisions that are made in the Cabinet are very soon in the public domain because they become the subject matter of announcements to Parliament.
It is right and proper that the public should have access to the background factual information on which public bodies base their decisions. Such information will be released.
The balance between the right of access and a limited number of exemptions is but part of the draft bill. At the heart of the proposals is an independent and powerful Scottish information commissioner. In "An Open Scotland" we said that legislation would establish an independent commissioner. Again, our draft bill delivers.
As I said in reply to Mr Gallie, the commissioner will be appointed by the Queen on the nomination of the Parliament, in a manner similar to the appointment of the Auditor General for Scotland. The appointment of the commissioner will be independent of the Executive. The commissioner will have a responsibility to enforce and promote the legislation. He or she will have legal authority to order disclosure of information. The independence of the commissioner will be written on the face of the bill.
The commissioner will also have a duty to promote good practice and, in promoting the legislation, to encourage a more open culture in the Scottish public sector—it is not simply a question of particular cases being referred to the commissioner for a determination.
I will make a point about public policy and decisions and the availability of the statistical information on which those decisions are based. Am I right in saying that statistical information will be made available only if the decision is taken to go ahead with a particular course of action, and that if it is decided not to pursue a course of action the statistical basis for that decision will not necessarily be released? Is that not strange?
I can certainly confirm that the decision to release statistical information will come after the decision has been taken. If no decision is taken, it may not necessarily become known that there ever was a decision to take. I am more than willing to consider the point that Alasdair Morgan has made, as it is a fair point.
Public authorities will be under a duty to assist applicants and the commissioner will ensure that authorities comply. The commissioner will also be involved in approving public authority publication schemes. Such schemes will set out the information that the authority intends to publish routinely and any charges it intends to levy.
The draft bill sets out a clear right of access, a demanding harm test, a requirement to consider the public interest in disclosure, a limited number of exemptions and an independent commissioner to promote and enforce it. It is a distinctive bill and the right bill for Scotland. However, if it is to be effective, we should not rely on the commissioner alone. Scottish public authorities must embrace the bill, which should not be seen as something to fear.
I will discuss briefly the provisions that allow the Scottish ministers, by collective decision, to override a decision of the Scottish information commissioner. Such a provision is not unique to our proposals: in Ireland, individual ministers can prevent the commissioner's consideration of an appeal and in New Zealand a recommendation of the ombudsman can be overridden by a collective cabinet decision. That provision has never been used since it was introduced in 1987.
I will reiterate our proposed approach. Our override has very limited application: it apples to only five of the 17 exemptions. It is by collective Cabinet decision. Our override would be a significant political event and not a simple administrative decision.
I will say a few words about the proposed approach to charging, which is mentioned in Ms Cunningham's amendment. I believe that it is a fundamental right for the public to have access to information. However, equally, we consider it appropriate to ensure that public authorities are not diverted unreasonably from carrying out their business.
Responses to "An Open Scotland" confirmed our view that the option that is proposed in the draft bill might best balance the competing interests of the applicant and the public authority. Many of the respondents to "An Open Scotland" suggested variations and other options. It was clear from the responses that whatever approach to charging is adopted, it is unlikely to satisfy all applicants and all public authorities. Draft bills are published for the purpose of consultation and we will listen to views on the proposals and consider carefully whether any adjustments should be made. It is important to remember that, based on experience under the code of practice on access to Scottish Executive information and the code that has been operated by UK departments since 1994, it is likely that the vast majority of requests will fall below the £100 threshold and will be supplied without charge.
The Executive is committed to introducing an effective freedom of information regime. The Executive's draft bill will, if enacted, deliver precisely that. It will deliver robust and distinctive legislation that is tipped decisively in favour of openness, and it is sensible, practical legislation. It is the right bill at the right time and it is right for Scotland. I commend the motion to the Parliament.
I move,
That the Parliament welcomes the publication by the Executive of a draft Freedom of Information Bill for consultation, in particular: (a) the fully independent Scottish Information Commissioner, to be appointed by the Parliament, with a duty to promote and enforce the legislation and with powers to order the disclosure of information; (b) the demanding harm test of "substantial prejudice"; (c) the requirement to consider the public interest in disclosing exempt information, and (d) the requirement on public authorities to make clear in a publication scheme the information to be made available as a matter of routine.
I listened with interest to the Minister for Justice's promise that the ministerial override would be an incredibly rare event. I am reminded of Donald Dewar's remarks during the passing of the Scotland Bill that Westminster legislating on devolved affairs would be an incredibly rare event. It is has turned out to be an incredibly frequent event, the consequences of which the Parliament has to deal with. I hope that the Minister for Justice's comment today does not turn out to have exactly the same meaning as Donald Dewar's comment all those years ago.
For a long time, the SNP has been deeply committed to the concept of freedom of information. It has certainly been part of the party's policy profile for more decades than I have been a member. In 1999, it was one of our manifesto commitments. We pledged to introduce a freedom of information act to ensure that all citizens have the same right of access to information as the decision makers. For that reason, the SNP broadly welcomed the Executive's announcement that it would introduce a freedom of information act.
I suppose that I should not have been too surprised, given that the Minister for Justice is Jim Wallace. I know that he has had a long-term, personal commitment to legislation on freedom of information. I understand that, on his election as a Westminster MP 16 years ago, he was asked the automatic first question that every new MP is asked—which private member's bill he would like to promote—to which he replied, unhesitatingly, that he would like to promote a freedom of information bill. I am afraid that I have not checked Hansard, but I presume that he never got lucky in the ballot for private members' bills. However, Mr Wallace got lucky, although he may not always have felt so, when he became a power broker in the negotiations to form the Scottish Executive. As a result, he found that an opportunity to introduce a freedom of information bill was available to him at last.
I welcome the publication of legislation, although that is not what is before us today, despite what some might wish us to think. The Liberal Democrats may have been a little premature with their self-congratulations. Their draft UK manifesto and the Scottish Liberal Democrat website both trumpet the introduction of freedom of legislation. Indeed, the main masthead of the website carried for a while a scrolling banner that read:
"After only one year, Scottish Liberal Democrats have made a difference, delivering on our promises—a far-reaching freedom of information bill".
Two years down the road, we now have a draft bill. I noticed with some amusement that the website has been changed to read that the Scottish Liberal Democrats have
"set in train a rigorous freedom of information regime".
I am glad that the Scottish Liberal Democrats made that clear, because the truth is that we do not yet have a freedom of information bill and we have not yet progressed beyond the announcement of consultation on draft legislation, which I hope is not the Lib Dems' definition of delivery. If it is, I hope that they never take charge of the postal service.
Joking aside, I welcome the fact that the draft Scottish bill is stronger in three key areas than the UK Freedom of Information Act 2000. Although that act reached the statute book in November, it will not begin to come into force until May 2002. I suppose that it was thought to be safer to get the general election out of the way before opening up files that might cause embarrassment.
The draft Scottish bill is stronger, as the minister outlined. The test for prevention of disclosure is stronger, with a "substantial prejudice" test for Scotland in comparison with the simple prejudice test for the UK. The powers of the Scottish information commissioner, who will be able to order the release of information, rather than merely to recommend its release, are also stronger, and there is a wider extent of Government policy material that must be released.
I sincerely hope that as the draft bill makes its passage through the parliamentary processes it will be amended to ensure even better access to information than is currently proposed rather than move towards the more restrictive UK model— which, in my more pessimistic moments, I believe to be the likely outcome.
We should not become too complacent because, so far, the Scottish proposals look better than the UK proposals. For a start, some of the most headline-grabbing issues that the Parliament has dealt with have involved either information being unnecessarily withheld, resulting in a lack of scrutiny by Parliament, or disclosure of information being delayed for so long that that scrutiny was held up. The Chhokar case, the Carfin fiasco, lobbygate and the Holyrood building are all examples of issues where the withholding of information resulted in either lack of scrutiny or delay in scrutiny, which is just as important, by the Scottish Parliament.
The real test is whether the draft bill would have made any difference to those rows. I am sure that colleagues will deal with specific areas in which the extent of access to information allowed by the draft bill is unsatisfactory. I will concentrate on a couple of areas from my own field of interest, taking as my first example the row surrounding the Chhokar family case.
In a statement to the Parliament, the Lord Advocate acknowledged failings in the level of support and information provided during the case of the murder of Surjit Singh Chhokar. However, the veil of secrecy under which the Lord Advocate acknowledged he operates is not going to be lifted from the workings of the Crown Office. Private prisons is another example, and I have found it greatly and consistently annoying that those involved in the running of a private prison are able to refuse to disclose detailed information about costs on what I believe to be the questionable ground of commercial confidentiality. The draft bill will do nothing to bring the accountability of those who run a private prison up to the same level of our other prisons.
The Chhokar case points to one of the most disappointing omissions from the draft bill—the Crown Office. As a lawyer, I understand some of the care that must be taken in relation to what can and what cannot be disclosed about criminal allegations, but society is simply no longer prepared to accept the bland refusal to disclose any information that greets most requests for information to the Crown Office or the procurator fiscal service. Only this week, MSPs will have received details from yet another family—the Cawley family from Giffnock—which is just as puzzled and frustrated by the way in which the Crown Office handled the murder of Christopher Cawley on 8 September last year as was the Chhokar family by the way in which Surjit's murder has been dealt with.
Sadly, all MSPs will have become familiar with the other families and victims who are equally nonplussed at decisions taken in secret that often are not communicated to them and about which they feel they have every right to know more. We have let down all those people by not even attempting to widen freedom of information in that area.
I will refer briefly to other class-based exemptions. For example, there is a broad exemption for confidentiality. I mentioned commercial confidentiality in relation to private prisons, but there is a broad exemption that would allow regulated companies or lobbyists to avoid scrutiny merely by agreeing with authorities that information should be kept secret. We must examine that proposal much more closely. As I understand the draft bill, there is a proposal to allow restrictions on disclosure in existing or future legislation to take priority over the provisions of any freedom of information bill.
One of the briefings that we received said that there are about 250 statutory restrictions on disclosure in UK legislation. I wonder whether existing disclosure bans in specific pieces of legislation will be examined, either with a view to repealing those bans or to allow freedom of information legislation to override them.
I also notice that, unfortunately, the Secretary of State for Scotland and the Scotland Office will come under the less strict UK regime, rather than the Scottish regime. That means that the ministers in the Scotland Office, whose predecessors have already insulted the people of Scotland by refusing to appear before committees of the Scottish Parliament and whose department has a ballooning budget, a shrinking remit and a political role will be subject to the weaker test for disclosure of information that is in the UK Freedom of Information Act 2000.
While the draft Scottish bill may well be an improvement on the UK act on a number of levels, I am afraid that in one important area it is not only worse than the UK act but will act as a deterrent to inquiry, denying access to information to those who cannot afford it. I refer, of course, to the proposed system of charging for information.
We are in the process of creating a freedom of information regime in which the ability to gain access to information is determined by the size of a requester's bank balance. To add insult to injury, organisations can use cost as a reason for refusing requests. Under the draft bill, if the cost of locating the information does not exceed £100, there will be no charge; but if the cost is more than £100, the person making the request will be asked to pay the excess. If the cost is more than £500, the person making the request may not get the information at all. What on earth is that about?
By contrast, the regulations on fees made under the UK legislation specify that up to 10 per cent of the reasonable, marginal costs of complying with the request may be charged. That is a maximum figure and there is no requirement on an authority to use that formula or to impose any charge at all.
In conclusion, the draft bill is, in theory, marginally better than the Westminster regime but it is unlikely that it would have affected any of the major difficulties with disclosure that the Parliament has already experienced and disclosure will cost the curious Scot more than the curious Englishman will be charged for his information. That is not good enough and it is why the SNP's welcome for the draft bill is muted. I hope that, over the next few months, the Minister for Justice can be prevailed upon to turn the draft bill into something more like the bill that I suspect he would have introduced had he been lucky in the ballot for private members' bills all those years ago.
I move amendment S1M-1750.1, to insert at end:
"but nevertheless regrets: (i) the proposed high and potentially prohibitive cost of applications; (ii) the extent and nature of the exemptions, in particular the exemptions afforded to the Crown Office, and (iii) that independent decisions by the Information Commissioner may be vetoed by the First Minister, and further expresses its concern that the passing of a Freedom of Information Bill in the terms proposed by the Executive would make little difference to the culture of secrecy which continues to pervade the governance of Scotland."
I call David McLetchie to speak to and move amendment S1M-1750.2.
I make it plain at the outset of my speech that the Scottish Conservatives support fully the concept of freedom of information and the allied concept of open government. My objection to the Scottish Executive's proposals is based not on the Executive's aim, but on the inconsistency on the principle of disclosure that has characterised the Executive's actions since the Parliament was established.
Open government does not depend on the passage of a piece of legislation. As I have said in the Parliament on a number of occasions, I do not understand why a new act of Parliament is necessary to force the Executive to disclose information that is already in its possession.
If the Executive is as committed to freedom of information as the minister insists it is, it can, on a purely voluntary basis, publish virtually anything it wants without a statutory framework. Because of its commitment to open government, the last Conservative Government released over 50,000 documents that were formally classified. We were committed to explaining how decisions were reached and to supplying the facts and analyses behind major policy decisions. Departments published internal guidelines for dealing with the public and we released questions of procedure for ministers and details of Cabinet committees. Most important is that, in 1994, we published a code of practice and we updated it before the general election in 1997. That code of practice enabled individuals to request information from Government and, if they did not get it, to appeal through their member of Parliament to the parliamentary ombudsman.
That is a record that I hope the minister will acknowledge. Let us get away from the absurd notion that the Executive—and the Liberal Democrats in particular—have any monopoly of virtue on this issue. We need only to look at the Executive's record on disclosure to see that even the most charitable interpretation would regard it as chequered. The crucial issue in any freedom of information regime is how the exemptions are defined and operated. At present, it seems that the Executive's position requires clarification.
On the credit side, during the investigations into the Scottish Qualifications Authority fiasco, the Executive was prepared to show a welcome degree of flexibility. Having initially stood by the principle that civil service advice to ministers should remain confidential, the Executive agreed eventually that access to that advice was necessary for the purpose of committees' inquiries. That led to the compromise of giving the committees access to some of the information. The irony is that, had this draft bill been in force at that time, the minister with responsibility for education, Sam Galbraith, would have been able to shield himself behind the class exemption that is set out in section 28 of the draft bill. As Mr Morgan pointed out in his intervention, that class exemption covers information that is relevant to policy formulation. Mr Galbraith would therefore have been able to call in his aid the support of Parliament for that statutory freedom of information regime.
On the subject of the SQA inquiries, the decisions that were taken were right and they were in the public interest. However, on a number of other occasions on which I believe the public interest would have been served by disclosure, the Executive has stubbornly refused to compromise on its principle of defending the confidentiality of civil service advice. That might be simply a question of judgment in that particular case. However, there is more than a hint that the Executive uses that principle as a convenient justification for withholding information that is politically sensitive—never mind that it is of considerable public interest.
Roseanna Cunningham, in her remarks, highlighted a number of cases in which that point has been well illustrated. It was also clearly seen in the case of the decision of the location of the centre for paediatric cardiac surgery, which was taken some time ago by the Minister for Health and Community Care, Susan Deacon. The minister decided that the centre should be sited at Yorkhill hospital in Glasgow and not at the Royal Hospital for Sick Children in Edinburgh. It was widely rumoured that the NHS national services division's report came to a different conclusion. Despite repeated calls to publish the report to clarify the matter, the minister refused to do so. That was widely believed, not least within the medical profession, to have far more to do with the political interests of the Labour party than it had to do with public interest in an important decision about the provision of important NHS services.
The Executive's attitude was thrown into more doubt soon after Mr McLeish became First Minister, when he published his infamous consultation paper "Bringing politics back to the heart of Government". That document appeared to offer Labour back benchers privileged access to civil service advice, which seems to be an odd way in which to preserve the confidentiality of that advice or of civil servants' essential political impartiality. However, the permanent secretary quickly confirmed that that advice would be confined to factual information and not to policy advice. Thus the document did not amount to very much, if anything at all. Not for the first time, it was all pure puff. However, it was illuminating to see how willing the First Minister was to give the impression of abandoning a cardinal principle when his political interests appeared to require that.
It would help to dispel some of the doubts about the Executive's commitment to open government if it followed the example of its counterpart in Wales and published the minutes of Cabinet meetings. In Wales, minutes are published six weeks after Cabinet meetings. They are published in full, except for references to information that is received in confidence from individuals, companies, the UK Government, other Governments and other devolved administrations. In Scotland, the situation is very different. We are not permitted to know even the subject matter of discussions, far less their substantive content. Mr Swinney and I ask the First Minister regularly at First Minister's question time about the content of Cabinet meetings. Instead of enlightenment, we receive the ritual reply that the Cabinet discussed, or will discuss, "issues of importance to the people of Scotland". It would, of course, never do for the Executive to disclose such information to Parliament. Instead, its preferred route is disclosure by official or unofficial press briefing. There is absolutely nothing to stop the Scottish Executive from following the example of its Lib-Lab counterpart in Wales. Such a gesture would do much to underline a genuine commitment by the Executive to freedom of information.
The Executive still has many crucial questions to answer. The ultimate criterion for deciding whether to publish information rests on the determination of the public interest. A legitimate question exists as to whether such a determination is better taken ultimately by a minister who is accountable to Parliament, or by an unelected commissioner. I support the provisions of section 51 in the draft bill because that section gets the balance right, although I accept that there are good and sound arguments in other directions. Ms Cunningham made those arguments in her speech.
As I stated, my concerns are with the Executive's actions and not at this stage with the precise terms of the bill. Those will be more closely scrutinised at a later stage.
Like the Blair Government, the Executive is mired in a culture of spin and media manipulation. It has repeatedly displayed a cavalier disdain for the simple truth of any given matter. That serves to fuel public cynicism about the political process. We have seen that disdain most recently in the debate over the fishermen's tie-up scheme and in the debate over the Sutherland commission's recommendations on personal care. Those episodes were characterised by a nudge here and a wink there and by constant briefing to newspapers followed by a pulling back from commitments that had apparently been given. If nothing else, the episodes have confirmed the Executive's commitment to freedom of disinformation when that suits its political purposes. Wallace may cry, "Freedom!" but the people cry, "Foul!"
The Executive has much to do to repair its damaged reputation. Today would be a good day to make a fresh start by taking the initiative on the minutes of Cabinet meetings.
I move amendment S1M-1750.2, to insert at end:
"but, however, notes with concern the inconsistency of the Scottish Executive in relation to the disclosure of information and calls on it to demonstrate its commitment to open government by henceforth publishing the minutes of its Cabinet meetings."
I want to go back to the beginning of the draft bill. The most important statement is that with which it begins. It states:
"A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority."
That rather reminds me of the Scotland Act 1998. Never mind for a moment the technical detail, important though that is. The important issue is the unambiguous establishment of a clear principle. The norm is openness, unless and until there is a good reason for the contrary. The individual citizen will have the right to be given information.
That emphasis cannot be overstressed. Naive as I may be, this is not about political point scoring, although I hear David McLetchie say that it is. It is not about those who are politically opposed to the Government trying to get information to use for opposition. It is about giving the individual a statutory right. The individual should have the right to know what is going on, the right to information that affects his or her life and the right to be fully informed.
Will the member explain why the Tory Government's codes of practice in 1994 and 1997, which were subsequently reviewed by Labour, are not sufficient to do the things to which he refers, if doing those things is the will of the Government?
In the past, there has been a climate of secrecy; it is important to change that. The way to begin to do so is to create a new statute that begins with the clear, unambiguous words that the draft bill begins with. We will then come to the detail.
I expect that there will be conflicting opinions on the detail, although I do not expect conflict on the list of bodies or—despite Roseanna Cunningham's amendment—on the cost of obtaining information. I expect that most people will like what the draft bill says about the commissioner. I do not for a moment accept the view that the commissioner will be some kind of paper appointment simply because the Parliament is making it. I cannot see what the alternative could be. The bill contains a very strong provision: if an order that is issued by a commissioner is not obtempered, that is contempt of court. I cannot off the top of my head think of any other such provisions.
In the past, the problem with independent officials making recommendations has been that there has been no sanction against any public body that refused to comply. The body could just shrug its collective shoulders and nothing would happen. I do not think that many public officials would like to go before a Court of Session judge to tell him why they were not complying with a decision. The very fact that we are introducing that strong provision means that the proposals will have real teeth.
I accept that part 2 of the bill—on exempt information—will be where different opinions will arise. Some people will say that there are so many exemptions—some absolute, some not—that the general principle, on which I opened my speech, has been so watered down as to make the bill virtually meaningless. Roseanna Cunningham's amendment says that the bill will "make little difference", but I do not agree. However, I can understand why somebody would say that. Because there are so many exemptions, there exists the possibility of the First Minister, on the advice of the Cabinet, overruling the commissioner. However, I cannot accept that the bill is weakened by that. I hope that every member accepts that a bill of this kind needs a number of statutory exemptions.
Gordon Jackson started by saying that there is a culture of secrecy, and that we are talking not only about the Executive, but about all public bodies in Scotland. Does he agree that the more exemptions there are, the more excuses to keep hiding information we will give to people who are still hide bound by that culture of secrecy?
Of course there is that danger, but that is why we will have the commissioner and that is why the final arbiters will be the courts. I understand that danger, but I want to go back to the overriding principle; the purpose of the proposed legislation is properly to empower the individual citizen and to stop confidentiality being used as a screen behind which, as Alasdair Morgan suggests, officials might hide wrongdoing or, more often, incompetence. However, we are not trying to do more harm than good. The bill is not meant to assist those who wish to do harm.
It is essential that, in certain situations, we maintain confidentiality. There must be effective conduct of public affairs. We need to ensure that national security is not affected and we need a proper system of law enforcement. We therefore need—we can argue about the detail—a number of exemptions. They are essential and to have them is merely common sense.
What really matters is the test that we apply in deciding whether an exemption should operate. It is in that respect that the Scottish proposals are greatly to be welcomed.
On a point of order. I do not doubt Gordon Jackson's integrity, but as he has just mentioned exemptions with respect to law enforcement, he should perhaps make a declaration of interests.
That, of course, is a matter for the member.
I am trying to think what I do these days that enforces the law, but I am hard pushed to come up with anything. Let me put it this way to Phil Gallie; if there is a need to declare an interest, I will declare it. However, I cannot for the moment think what it is.
The vital thing is the test of substantial prejudice. That appears time and again in the bill and it is a very high standard of test, as the word "substantial" makes clear. Many of the exemptions will not kick in without that standard being reached. If a public body claims substantial prejudice, it will know that the independent commissioner and then the courts will apply the same stringent test.
To Alasdair Morgan, I say that the understandable temptation—I know the temptation—for those who hold information to claim prejudice and to hide behind that claim will be of little or no avail, because there will be so many checks on their decision making.
Even when there is an exemption, there is a test in section 2 of the draft bill that says that the general principle of disclosure will still apply where—even if there is prejudice—the public interest in hiding the information is outweighed by the public interest in disclosing it.
The general principle with which the bill begins makes it difficult for any public body to justify secrecy. The commissioner and the courts will see to that. It will take time, and only as we establish a new climate of openness will we reach a situation in which information is hidden only for a legitimate reason. It will take time to work that out and we will have to change the way that we do things. However, in my view—I say this as somebody who has been frustrated for most of his professional life by public bodies' secrecy—the draft bill is a huge change for the better. The proposals are to be welcomed, not unfairly criticised.
I want to look specifically at the ability that the Executive's proposals will give the public to access environmental information—especially more complex information. The current proposals do not ensure that the nuclear industry will be held to account through the release of relevant and appropriate information.
The track record of senior executives at Dounreay, in collusion with civil servants and ministers, indicates that it will take a lot more than the current proposals to change the nuclear industry's culture from one of secrecy and misinformation to one of openness and honesty. We need only look at the headlines in some of yesterday's papers about British Energy plc's plans to build a new nuclear facility at Hunterston to see that little has changed.
However, for once we can be grateful for Brian Wilson's obsession with cheap headlines. In his capacity as unofficial consultant to the nuclear industry, he has managed to get information out into the open—even if it was as a result of putting his rather large foot in his mouth again.
British Energy has issued a press release declaring that it will not build in the manner that Bruce Crawford suggests. In the context of freedom of information, that information was provided to Mr Crawford last night.
I got that e-mail. Paragraph 4 states:
"In the event that future conditions were right for reinvestment, it would clearly be sensible to look first at siting new nuclear power stations at the same places as the present stations"—
and so it goes on.
How the proposed legislation will ensure that the nuclear industry provides accurate, honest and relevant information is beyond me. Any legislation needs to look beyond what is required of the public sector; it needs to place obligations and responsibilities on other organisations, including the privatised utilities. That should apply particularly to those that are involved in environmental practices that are potentially of concern.
Given the levels of consultation, especially with local groups and others, and given the amount of information that comes from the nuclear industry, will the member give us some examples of the closed information cycle within the nuclear generation industry?
It has taken many decades for the history of Dounreay to come to light, a point that has been made time and again. To be aware of that, all Mr Gallie needs to do is read his newspapers.
It is incredible that in Scotland it will cost an inquirer £400 to access complex information, but it will cost only £50 in England and Wales. It is inconceivable that governmental authorities will be able to refuse to provide information if it will cost more than £500 to do so. That point is particularly relevant when it comes to the provision of environmental information. Ordinary citizens, when faced with threats to their quality of life, must be able to access information that will provide a counterbalance against organisations that are often stronger than they are; which have effective public relations units; and which represent either a perceived or real threat. That is true for citizens and communities who attempt to halt the erection of a mobile phone mast, or to stop the spreading or dumping of harmful waste in their area, or for people who are concerned about the long-term effects of living in the shadow of a nuclear or petrochemical plant.
Often, the only weapon that individuals or campaigning groups have with which to arm themselves, in what often are unequal struggles, is information. That information is often detailed and complex. The high costs that are being proposed will act as a debarment to, or a brake on, the ability of individuals or communities to defend their quality of life. The Executive cannot allow that to happen. I implore the minister to have a good look at the issue. He should not let his civil servants get away with this. By better management of information systems through a policy of genuine openness, the Executive should be able to find efficiencies that would cover any additional burdens. The experiences of Sweden and the Netherlands show that costs can be reduced through freedom of information, rather than increased. Efficiencies should be used to overcome the burdens. There is a long way to go on this issue and I ask the minister to have a good look at it, and also to have a good look at the former public utilities.
It is a truism to say that knowledge is power and that information is power. The focus of the debate should therefore be on the interests of ordinary citizens and what they might get out of a freedom of information act. I accept that members will want to discuss the importance of the knowledge and information that is transferred between committees of the Parliament and the Government, but we should get this correct from the beginning and focus on the fact that the enactment of a freedom of information bill, which will happen soon in this Parliament, should be for ordinary people.
I will address a few of David McLetchie's points. He is not in the chamber, but I am sure that somebody will fight his corner. The Conservatives are interested only in Cabinet minutes and decisions, but that is not the point of a freedom of information act. There are reasons why committees of the Parliament and the Cabinet—as is normal practice—want to have private discussions at which people can speak freely. Let us not forget the important principle of the Cabinet's collective responsibility.
Mr McLetchie claimed that his party's record on freedom of information when it was in government was good, but it was not; it was the Conservatives who banned the trade unions from Government Communications Headquarters because the unions could not be trusted with information.
Pauline McNeill touches on an interesting issue, which I suspect will become more prominent as the debate unfolds. That issue is the delicate balance between the institutions of our constitution, which are traditionally the executive, the legislature and the judiciary. With regard to GCHQ, by any argument there was an issue of national security. I have not met anybody outwith the trade union movement who disputes that assessment. I make the point merely to illustrate to Pauline McNeill that there are broader issues to be considered.
Labour reintroduced the right of employees at GCHQ to be members of trade unions, because we believed that there was no security risk. We believe in that right and in freedom of information. Our record is good.
We are attempting to break from the traditions of the past. When an act of Parliament is passed, it must have a cost attached to it. There might be a cost to the Parliament of up to £12.5 million if the draft bill is passed, which is not an insubstantial amount. That represents a substantial commitment.
The Campaign for Freedom of Information Scotland, in evidence to the Justice and Home Affairs Committee, said that it is less important to have debates about the harm-based and content-based exemptions than it is to be concerned about how the law will be implemented, how the culture will be changed, how one ensures that the training is done, and about the status and role of the information commissioner. That campaign said that those points are more important than anything else and that is what should come out of this debate. The proposed legislation will not be a code, as has been suggested this morning, but a law. It is the duty of the Parliament to see that that law is enforced properly.
The Parliament will have to consider to what extent the proposed freedom of information act will apply to it—rightly so—in relation to what information should be released by the Scottish Parliamentary Corporate Body and so on. Some consideration should be given—this point was made in evidence to the Justice and Home Affairs Committee—as to whether a committee of the Parliament should have a duty to review the freedom of information act as it is implemented. It has been suggested that that might be a role for one of the justice committees. We should consider whether that should be done.
Roseanna Cunningham made some points about the type of information that should be released by the Lord Advocate's office. Sometimes there are good reasons why the Lord Advocate cannot release information, but the crucial point is that, when a decision is made that information cannot be released, it should be clear upon which criteria that decision was made, so that people will know why the information was refused. The proposed legislation can be an act for citizens and it can be a focus for ordinary people. Let us get down to business.
Pauline McNeill made comments about the Conservatives. I point out to her that, in committees of the Parliament, Conservatives—more than any other members—object to discussions being held in private. That is on record and it shows our feelings on openness.
Will the member give way?
I do not have time; I have only four minutes.
With respect to GCHQ, the Labour Government has not redressed the situation. I point out to Pauline McNeill that under the draft freedom of information bill, the exemptions would continue to suppress the information that she desires. This bill is a sop, to a degree, to the Deputy First Minister, who has long pursued this ideal. It is a sop that has been offered to the foot soldiers that are needed to back the Labour group to retain its power in the Parliament. Those foot soldiers are nothing more than mercenaries.
The Executive has given in on issues such as tuition fees, the Sutherland report and the Holyrood project. I forecast that it will also give in on the fisheries issue, about which every member felt so strongly last week in Parliament. I predict also that the Executive will not give in on proportional representation, but that that will happen at the end of this Parliament, when the Liberals will be able to opt out of the coalition.
If the measures in the draft bill were really necessary, they could be implemented without legislation. If the politicians in the Parliament really want freedom of information, it is within the powers of the Executive to provide it. I point to the Tory codes of practice from 1994 and 1997, which allowed for the release of information almost right across the board.
Does Mr Gallie recognise the difference between a citizen's right and a right that is given out by Government by way of grace or favour? It is that essential and crucial difference that lies behind the debate.
There is no need for a statutory requirement—guidelines would be sufficient. If the Executive set an example, that would permeate throughout the public sector, and rightly so.
There are numerous examples of the Executive being over-secretive. Given that I have only four minutes I will not go over them again. David McLetchie listed a number of them. He made a point about Sam Galbraith. The draft bill must concern those who support it, given that Sam Galbraith could have been prevented from providing information on the Scottish Qualifications Authority had the draft bill been in force.
The draft bill has expanded upon the watered down version south of the border. To a degree, that might be to the credit of the Liberals, but the changes that have been made are fairly meaningless. If the Executive means what it says about freedom of information, I would like it to give an undertaking now that the bill will not be guillotined, unlike almost every other bill. That would be a major step forward.
The draft bill could be said to allow an excess of ministerial discretion in the insertion of catch-all orders, to which ministers may resort. That is typical of many of the bills that the Parliament considers. In the draft bill, there are examples in section 5(1) of powers of ministers to designate. That hardly aligns with freedom of information.
We will draw out issues about fees in the committee debates that will take place. We will also scrutinise the exemptions and the reasons for refusals. I ask the minister to explain whether, when a refusal is given other than through the commissioner, details will be supplied in full to the person who inquires. After fees have been set, will detail be provided about the way in which they were decided?
Sections 34 to 36 in part 2 might affect the Crown Office and procurator fiscal service. We will do a lot of teasing out of those issues, particularly considering situations that have developed around the Chhokar case. We wonder whether such measures would have an effect on Sir Anthony Campbell and Dr Raj Jandoo's inquiries.
Please wind up, Mr Gallie.
Okay. There are many good reasons why the need for the bill should be questioned. We will tease out those reasons in committee stages and beyond.
Before I call Margo MacDonald, I announce, on a point of information, that the revised business bulletin is now available. It includes the Presiding Officer's choice of amendment to the motion for the fisheries debate and gives the text of the motion on the appointment of a junior minister. The bulletin is available at the back of the chamber.
Like my colleagues, I welcome the draft bill. It sets an excellent precedent for dealings in the Parliament, which will probably contrast unhappily with the dodgy deals that we are likely to see later today. However, I would like to probe the laudable sentiments. I endorse what Gordon Jackson said about the clarity of the intention behind the draft bill. I hope that when the minister sums up he will answer some of the questions.
I would like to test a couple of issues that I have come across when representing people who have approached me and who were perfectly entitled to seek clarification. The first case probably falls within the qualified class exemptions to which sections 30 and 31 relate. According to my reading of those sections, the information that is collected by an enforcing authority during routine inspections would also be exempt, even if no offence had been detected or a decision not to prosecute had been taken.
The first case concerns a gentleman from Edinburgh who approached me in October 1999 about interceptions that he suspected had taken place in the previous year of regular telephone calls between him and his girlfriend in Ireland. I wrote to Jack Straw on 7 December 1999, 2 February 2000 and 24 May 2000 to ask for information. None of those letters was acknowledged. I changed tack and approached our own Minister for Justice, who I admit replied to me, although it took him a long time. I will be interested to hear how we will improve the culture of information, never mind secrecy. The minister directed me to the Interception of Communications Tribunal. We sent out the required forms on 30 September 2000. As of today, I still await an answer, as does the person who contacted me. That is not good enough. I want to know how our freedom of information bill will better serve that member of the Scottish public. He is entitled to know why letters went unanswered and why the staff to whom we spoke by telephone were unhelpful.
Is there a conflict of interest between Westminster's Freedom of Information Act 2000 and our draft bill? What legitimacy do we have? What legitimacy do I have in representing the person who approached me with what I consider a reasonable request for information? Gordon Jackson said that he thought that the clear statement of intent at the start of the draft bill would make it difficult for public authorities to deny information, but will it make it as difficult for an authority that is under Westminster's control? We are dealing with the security services. What will be the information commissioner's role vis-à-vis the security services and the exempt cases at Westminster?
My second case concerns the information that is freely available about a Government or Parliament project. I will use the Holyrood project as an example—I am sure that that will surprise a few people. I want to test whether the aspirations of the bill, the minister and all those present for the debate measure up to discovering what we and other Scots should know about the Holyrood building. Will the bill place any requirement on the policy makers who decided where to site the Parliament building to explain their reasons? Are no minutes of their meetings open for inspection on request? That is not just to satisfy a nosey-parker member of the Parliament. Such information is part of our history and the legacy that we will hand on to future generations in Scotland.
We need such information to take a balanced view about whether we have the Parliament that we say we want—the Parliament that we deserve and that Scots were told to expect. I presume that that information is contained in minutes of committees. Will the bill allow us to see them or will we have to go to the Scottish Parliament's visitor centre? There, interactive displays are to help us to understand the who, why and how of the Parliament today. I have tried to do that ever since I entered the Parliament, and so far my efforts have been thwarted.
I will judge the draft bill's effectiveness—not its intentions—by its ability to deal with the two test cases that I outlined.
Please close.
Unlike Mr Gallie, I do not believe the draft bill to be a sop. However, it is only a start, so we should treat it seriously.
I pay tribute to Jim Wallace, who has a great personal commitment to the subject. I know that he has wrestled manfully—if that term is still politically correct—with the climate of United Kingdom civil service secrecy that he has had to fight for much longer than I have. That tribute has nothing to do with anything that he and I may say to each other, because I have not seen him since some entertainments took place last week; I was away at Westminster, where, incidentally, I voted at 2 am on a big issue between parliamentary sovereignty and the Government's excessive efforts to control it.
For those who are excited about voting, it is worth pointing out that there were five rebellions over Westminster's Freedom of Information Act 2000 when it went through Parliament, by up to 36 Labour MPs, who remain in good standing with their party. I make that point to show how the Westminster bill was unsatisfactory, whereas Jim Wallace's effort is better. The subject is difficult, and I am sure that his bill is far from perfect, but it is a distinct improvement on Mr Straw's efforts. That is a great credit to Jim Wallace and Liberal Democrats' commitment to pushing the issue through.
I do not think that there is conflict over the issue between the Liberal Democrats and the Labour party. The conflict is between politicians and the civil service's tradition of keeping everything in Britain as secret as possible. I hope that Jim Wallace will continue to try to change the climate in the civil service. I know that that is difficult, because the civil service is a United Kingdom institution. A lot of the traditions are quite daft. I remember one particular issue that came along—it may have been the McCrone report or the Cubie report—on which legal advice had been taken. We were told that we were not allowed to be told that the Government had taken legal advice. The depth of childishness is quite astonishing. There must be more clarity.
I have long experience of local government. Local government officials put their views on paper. Their views are seen on the record. They may have private conversations—I am sure that they do—with the leader and the leading lights of the council to express private opinions, but their professional, official advice is on the record. Why cannot civil servants, who are always denigrating local government, operate in that way? If local government officials can do that, those much superior civil servants can surely do that too.
I hope that the Executive and Jim Wallace will be flexible in accepting constructive improvements. If one rips away some of the political rhubarb, the speeches of some of the Opposition front bench members raised serious issues that must be addressed. I hope that the Executive will be more flexible and will accept constructive ideas.
As Margo MacDonald said, the draft bill is the beginning of a process. Turning the bill's good intentions into reality could improve the bill. I hope that the Parliament will have a chance to do that and that the Executive will not merely block the whole lot. The draft bill is an excellent start on an important subject. I wish Jim Wallace the best and I will give him my total support in his efforts to fight the multi-headed Hydra of civil service secrecy.
We must welcome as a step forward the introduction of a draft bill on freedom of information. The draft bill is harmonious with the statement on openness and the openness to which we as members are subject. We have a requirement to declare to the public and to other members the interests that we hold in particular subjects. Members must present their interests in writing and orally. It strikes me that there is a necessity to extend that concept to the area to which Alasdair Morgan and Roseanna Cunningham referred: the policy decisions of the Cabinet and the Executive. The minister should go away and consider the possibility of learning from the experiences of Sweden, Denmark and the Netherlands to allow us that level of access.
That brings me to the issue of access for the public. The minister must look seriously at the proposed charging regime, to which a number of members have referred, because there is an imbalance and inequality in the structure between the rest of the UK and Scotland. It could also be suggested that that level of charging would in itself operate as a barrier to access for a number of people.
We do not have a definition of vexatious requests. I get the impression that any authority can make its own definition. Ultimately, that definition could include any individual who makes persistent requests. The draft bill also refers to that. A request can be rejected where there are repeated requests from the same applicant
"unless there has been a reasonable period of time between the making of the request ... and the making of the subsequent request."
We need a definition of "reasonable period of time" and whether that will be considered on an individual and case-by-case basis.
The other problem is section 12(1), which states that the public authority need not comply with the request where
"the authority estimates that the cost of complying with the request would exceed such amount as may be prescribed in regulations".
If we have a basic principle that access to information is free, we cannot institute restrictions that can be decided by bodies other than the Parliament. The ability of a public authority to estimate
"that the cost of complying with the request would exceed such amount as may be prescribed in regulations"
is a barrier to access—indeed, it is a barrier to the principle of freedom of information.
I want to ask the minister specific questions about what could be termed previous regimes of freedom of information. For instance, the Access to Health Records Act 1990 is, unfortunately, interpreted by the Mental Welfare Commission for Scotland as not requiring it to provide the mental health records of people in Scotland, because they consider them not be medical records. That is the direct opposite of the approach that is taken by the Mental Health Act Commission in England.
Will any public bodies be able to interpret the draft bill on their own understanding, as the Mental Welfare Commission for Scotland has done with the act? Will public bodies be allowed to decide whether to comply? Will they be able to seek legal advice that would allow them to evade the provisions of the draft bill?
I refer to the retrospective nature of the draft bill. There are a number of outstanding cases that refer back to Government decisions and involvement some years ago, specifically the Piper Alpha case. Will the freedom of information (Scotland) bill allow the families of the victims of Piper Alpha to re-examine that case and to re-examine the involvement of the Secretary of State for Scotland of the time? I seek answers to those questions from the deputy minister in his summing up.
I welcome the consultation paper on the draft bill. It is a major step forward towards a more open society in which information is shared by all and is not the preserve of the privileged few.
Some of the debate has focused on what is not in the bill. I can sympathise with much of that argument—if I thought that the draft bill was the final word on freedom of information, I too would be disappointed. I think that we should consider the draft bill, as Margo MacDonald said, as part of a process of evolving into a more informed and democratic society. The Scottish Parliament is part of that process and I hope that we have been a major spur to progress. The Parliament is built on the principles of openness, transparency and accessibility. They underpin our day-to-day work and they underpin the draft bill.
It is also true that those principles do not always underpin the work of Government or, more particularly, the work of the civil service. I do not wish to be over-critical of the civil service. In many ways, it epitomises values that I and other members hold dear: integrity, honesty, impartiality and accuracy—I see the Deputy Minister for Enterprise and Lifelong Learning and Gaelic smiling. However, there is also no doubt that, at the heart of the civil service, there is a mindset that is difficult to overcome. It is a defensive way of thinking and a protective approach.
I understand and respect the way in which the civil service operates, but it reflects a different age, a different kind of society, a more deferential time and a more secretive way of working. We want to retain the excellence of the civil service, but remove the élitism. That is why I welcome the consultation paper. It challenges the élitist way of thinking and helps us to move from a culture of secrecy to a culture of openness.
I will limit myself to talking about a couple of practical examples, which have both been raised by the Tories. The first example is the Scottish Qualifications Authority. Members will be aware that one of the bones of contention during the Education, Culture and Sport Committee's inquiry into the SQA was that we wished to know exactly what information became available to ministers as the difficulties at the SQA developed. The official secrecy rules that govern ministerial advice made that information difficult to disclose.
It is important that civil servants are not compromised in the advice that they give to ministers. The civil service should be more open. It should be more transparent in its workings and more open to scrutiny, but it should not be open to political attack. Far be it from me to accuse the Opposition parties of being disingenuous, but public interest is often cited when party interest lies just underneath.
The draft bill offers the opportunity to take some of the politics out of the argument. The role of the independent Scottish information commissioner will be crucial. If such a commissioner had existed when the SQA discussions were going on, he or she could have ruled whether those papers were important to the inquiry and whether they should have been disclosed. We could have preserved the integrity of the civil service while satisfying our need to know what information was passed to ministers.
I began by saying that the draft bill should be part of a process and that we in the Scottish Parliament are part of that process. I have a word of warning, which relates to a point that was raised by Phil Gallie, who was claiming credit for the Conservative party—given the Conservatives' record in power, I find it difficult to hear them talking about freedom of information and open government. However, some members will know that the voluntary sector is already alarmed at the number of committees that are meeting in private. I know that, when we meet in private, we do so with the best of intentions—possibly so that discussions are liberated from the constraints of party politics—but those who have not been at a meeting feel excluded. They do not know what has been discussed and they feel concerned about that.
I welcome the bill but I end on this note: we need to remove the beam from our own eye before we ask the Government to remove the mote from its eye. Here ends the gospel according to St Ken.
The final lesson is from Alasdair Morgan.
Like that of many other members, my starting point is the current culture of secrecy. In 1999, Dr David Clarke, the MP for South Shields, said:
"there is obsessive secrecy in Britain. Secrecy is almost endemic in senior levels of the civil service".—[Official Report, House of Commons, 7 December 1999; Vol 340, c 739.]
In 1997, when Labour was elected, Dr Shields was given charge of the freedom of information project but was later sacked—I do not know whether that was because he was too much in favour of it.
To pick up Gordon Jackson's point, I welcome the proposals. I do not want to be unfairly critical, but I feel that we must consider some of the exemptions that are covered by the class test. We must remember that those exemptions are ones where the harm test is automatically deemed to have been satisfied, because the matter is in the exemptions.
Other members have mentioned section 28, on public policy. We all want good public policy. Our civil servants—and, I think, our ministers—are all first-class brains. They are the cream of our education system. However, all too often those first-class brains produce second-rate policies. We would all agree that, if we want to arrive at the best possible decisions, our debates have to be informed by as many facts and policy options as possible. Why, then, do we not remove the ban where it relates to factual matters—not the recommendations from the civil servants, but the options that are presented to ministers for discussion? Almost all such advice gives various options. Jim Wallace said that he did not want to inhibit the frankness and candour of advice, but surely we can expose civil servants to more scrutiny without having that detrimental effect.
We may be told that the public interest test applies to some of those exemptions. However, section 28 includes four categories of exempt information, only one of which is covered by the public interest test. The other three—law officers' advice, ministerial communications and the operation of any ministerial private office—are exempt from the test. The public interest test does not override those exemptions. I am concerned that section 28 is one case where the Scottish Executive can override a decision by the commissioner. We are told that other Governments have similar provisions. So what? We are not other Governments, and we should make our own decision on that matter.
There is no public interest test whatever in the class exemption in section 33, on investigations by authorities. The section says:
"Information is exempt … if it has at any time been held for the purposes of—
(a) an investigation".
It strikes me that that is a fairly wide exemption, which could be used to exempt much information that should be in the public domain. I might be wrong, but I can see no ifs or buts. That information is exempt, regardless of what the commissioner may think about it.
Another way in which ministers can override the commissioner—an interesting one, in relation to events that happened a wee while ago—is in the prerogative of honours. Presumably, we would be unable to inquire as to why a certain person was or was not recommended for a particular honour. That would be a mistake.
I conclude by echoing the words of Margo MacDonald and others that the bill is a start. It is a good start, but it could be improved upon. I hope that the committee process has that effect.
I had a frisson of alarm at the emphasis that Alasdair Morgan placed on section 28, because of the element of déjà vu.
The publication of the draft freedom of information bill is a landmark occasion. As a Liberal Democrat member of the partnership, it gives me particular pleasure to see Jim Wallace, the Minister for Justice, introducing the draft bill to Parliament. The freedom of information bill will be a blast of good, clean, democratic air through the corridors of power. As many members have said, the bill is important in two ways: for what it does and the rights that it gives to citizens; and for the more subtle—but more important—effect that it is likely to have on the whole ethos of government.
The establishment of an independent Scottish information commissioner, to be appointed by Parliament, is vital—Ken Macintosh touched on that. The commissioner will have a mandate to promote and enforce the legislation. There are provisions for various types of guidance in the bill. Potentially, the commissioner's role is powerful; I hope that the Parliament will ensure that the role is reinforced and enhanced, both in committee and in the performing, in due course, of that role.
As a member of the Scottish Parliamentary Corporate Body, I seek assurance from the minister that the extra resources to pay for that office and the staff will be made available to the corporate body. That falls within the management of the SPCB. The SPCB has had discussions about the effect of the freedom of information bill on the operation of the Parliament. It is important to say—as I have said to the corporate body—that Parliament should set the highest standards in the way that approaches its obligations under the bill, and, in due course, under the act.
In welcoming the bill, The Herald said:
"If it operates as any freedom of information regime should, it will cause a frisson of alarm and no small measure of delight for anyone who has been tangled by wilful red tape."
I agree with that, because it is the nature of all Governments, our own included, and more particularly of Government machines, to believe that only they are qualified to judge—preferably behind closed doors—what is best for the rest of us. Gordon Jackson was correct to stress the straightforward nature of the right that the bill gives to individual citizens.
I contrast the powerful bill offered to Parliament by Jim Wallace and the Scottish Executive today with the approach of the Conservative party. I have some difficulty with the concept of the Conservative party in the guise of defenders of freedom. It does not understand the need for the bill, and, in particular, it does not understand the crucial difference between a right that a citizen has by dint of being a citizen by the law, and a privilege or a favour that is granted by grace of the Government. The Conservatives' view is summed up in their campaign guide at the most recent election, which said:
"The only group in Britain who are seriously interested in a Freedom of Information Act are inquisitive left wing busy bodies."
Well, I am prepared to put up with left-wing and right-wing busybodies. Busybodies, eccentrics and people with obsessions can expose the murkier issues behind the corridors of power and Government activity. More often, the right of access to information can enable voluntary groups, and civic society generally, to mount more trenchant and informed critiques of policy issues, and to enhance the substance and quality of our democracy.
To return to culture, I believe that the presence of Liberal Democrats in the Scottish Government is a major reason why the Scottish bill is a much more powerful instrument than the one down south, under Jack Straw. Labour in the UK Government watered down the harm test, flunked—in the view of the Public Administration Select Committee—the public interest issue, and, in the words of Charter 88, "legislated to protect secrecy." The superiority of the Scottish bill is not only down to the Liberal Democrats. There has been major involvement and commitment by our Labour colleagues in the Executive, and by people such as Pauline McNeill and Gordon Jackson. The background to the bill is the existence in the Parliament of a different electoral system, ethos and way of doing things, which has produced a different climate of government.
I welcome the bill and Jim Wallace's personal commitment to it. I know that he will be sensitive to the bill as it goes through committee, and that he will ensure that it becomes the property not only of the Executive but of the Parliament. It is important to bear in mind that concept.
With reference to Mr Brown's remarks, I own up to being inquisitive, I do not own up to being left wing and I think that the jury is out on the busybody bit. Having said that, however, I welcome the draft bill, as does my party. Mr McLetchie's opening speech indicated that. We embrace the principles of the draft bill and are glad to see it.
It is important to bear in mind the backdrop against which the draft bill is being published. In his opening remarks, the Deputy First Minister articulated the principles behind the draft bill, but I think that the backdrop should not be forgotten. That backdrop is the important one of the time-honoured and tested delicate balance that has always been struck among the three pillars of the constitution: the executive, the legislature and the judiciary. The great constitutional law cases that any law student is familiar with have always sought to protect the individual against the weight of the state, and that protection is currently available under existing law. The greatest test of balance has perhaps been on the issue of individual right against national security or material prejudice if information were disclosed.
At the levels of national and devolved government, there are important issues to be borne in mind, but there is also a need not to reinvent the wheel and to be cognisant of the strong virtues of existing law. Having said that, the draft bill addresses significant issues. There is a need to facilitate access to public information and there have been some shabby and furtive instances of wilful and unsustainable refusal to disclose information, as Mr McLetchie said. If those deficiencies are to be found in government, they are certainly to be found in local government and in other public agencies. Non-disclosure in those cases is probably more to do with discomfiture and indolence than with genuine issues of essential confidentiality or material prejudice. Any opening up of those dank and unlit corridors is welcome. In so far as the draft bill proceeds to address those areas, its provisions are to be commended.
The intended statute will be meaningless if the Scottish Executive is not prepared to lead by example, and the record to date is not impressive. At present, without any change to the law, voluminous disclosure can be effected, but the Scottish Executive has made little use of that facility. Contrary to the impression created by some persons in this chamber about the Conservative Government, the record shows that it made demonstrable progress in practising disclosure of information. In this respect, the Scottish Executive has been at best coy, at worst covert. I therefore support Mr McLetchie's amendment, because it seems to me that allowing the Scottish Executive to make Cabinet meeting minutes available is indeed a meaningful start.
On general disclosure, it is desirable that the Scottish Executive and the First Minister, who are publicly accountable, should perhaps have the predominant role over an unelected commissioner. Having articulated that reservation, that is why the Conservatives feel unable to support the amendment in the name of Roseanna Cunningham.
My party welcomes the bill and endorses its principles. We think that there will have to be rigorous debate at committee level to ensure that existing law is not overlooked and that its best virtues are recognised. We also think that there will be areas in which there has to be considerable debate about how we maintain a delicate balance. I am acutely aware that today is a good day for the very many people in Scotland who have felt frustrated, deprived of rightful information and impeded and blocked at every turn. In my professional life I have acted for many such people. Today's draft bill shows that, at last, a door is opening through which they will be able to walk.
Like many other members, I welcome the draft freedom of information bill. However, before we go over the top in congratulating ourselves on reaching this milestone, we should be mindful of the fact that the Swedish Parliament passed its first freedom of information act back in 1766—the Freedom of the Press Act. We clearly have some ground to make up.
I was interested in the comments that Robert Brown made when he referred to those who may be obsessed with single issues but can also be responsible for exposing matters that would otherwise go unnoticed. I can only suggest that, given that Phil Gallie is so obsessed with the European convention on human rights, that makes him the European convention on human rights busybody.
I must confess that I do not think that the SNP can support the Tory amendment, because the Tories' benchmark for the draft bill seems to be based on whether they will have access to Cabinet minutes. To be perfectly honest, I am not too sure whether Cabinet meetings will be that interesting to read about.
In the course of the debate, several members have highlighted the fact that the draft bill, to some extent, goes further than the Freedom of Information Act 2000. Roseanna Cunningham highlighted three areas in which the draft bill proposes to go further than the UK act. However, there are several areas in which the draft bill falls behind the provisions of the UK act. The draft bill's proposal to set a higher threshold of substantial prejudice when testing for the disclosure of information is one that I welcome. Gordon Jackson referred to it as being a higher standard of prejudice than that set in the UK act, and I entirely agree with him about that. In addition, a positive provision of the Scottish draft bill is the obligation that will be placed on Scottish authorities to provide a certain degree of information under their own initiative. That is also to be welcomed.
International experience has been referred to in the course of the debate. I was interested to hear the comments from the Canadian commissioner for freedom of information last year, when he highlighted the fact that the biggest impediment to the implementation of the Canadian act was breaking down the culture of secrecy that pervades many public and private institutions. I find it surprising that the draft bill contains no explicit purpose clause to state clearly the intentions of the bill. Gordon Jackson said that we should warmly welcome the general principles on which the draft bill is based, but I think that we should also ensure that there is a clear purpose clause in the bill so that there is no confusion as to what its purpose should be.
Does Mr Matheson accept that paragraph 89 of the commentary on the draft bill states that the Executive is considering a purpose clause
"but has not yet reached a final decision"
and will obviously take account of representations made in response to the consultation exercise?
I thank the minister for that comment. I am aware of that paragraph. The consultation document says that it is possible for a purpose clause to be included, but I want to know why the Executive has not yet decided to do so. It seems clear to me that we should include a purpose clause so that we can ensure that there is no misinterpretation of the intentions of the bill and assist in breaking down the culture of secrecy that pervades many of our public authorities.
Several members have raised questions about the proposed charging regime that will be used to cover the costs of locating and retrieving information under the bill. I have serious concerns about the deterrent effect that the charging proposals may have. Under the Freedom of Information Act 2000, ministers have made regulations that will permit authorities to charge no more than 10 per cent of the marginal costs of locating information. For example, where the cost is £500, the charge would be only £50. A similar request under the Scottish draft bill would cost eight times more than under the UK legislation. Lloyd Quinan referred in detail to the serious possibility that the financial charging regime could act as an obstacle to requesting information.
I note that Jim Wallace referred to the need to ensure that public authorities are not overburdened by requests. However, as he will be aware, the UK act contains at least six restrictions to deal with that very issue, covering cost and vexatious requests. Those provisions are mirrored in the Scottish draft bill, so we already have provisions in the draft bill to deal with that potential problem. That is why they were put in the UK bill in the first place.
Several members have highlighted the bizarre situation in which the Lord Advocate and procurator fiscal service will find themselves. The information commissioner will have no power to review refusal to disclose information by either the Lord Advocate or a procurator fiscal. In effect those people, one of whom is a Government minister, will be able to ignore the legislation.
Pauline McNeill referred to the need for the Lord Advocate sometimes to retain information for specific purposes. However, as Roseanna Cunningham and Lloyd Quinan highlighted, there have been cases in which access to such information has caused greater harm than good, in particular the Chhokar case and the case of the Cawleys, to which Roseanna Cunningham referred. I hope that the minister will give consideration to that. Access to information has also been highlighted in relation to prisons. The minister will be well aware of my attempts to find out the cost per year for each prisoner in Kilmarnock private prison. What will the bill do to change the current system?
Finally, I want to turn to an area that is of particular concern to me: the First Minister's veto under the proposed bill. As the minister will be aware, when we discussed the Regulation of Investigatory Powers (Scotland) Bill and the Convention Rights (Compliance) (Scotland) Bill at committee, I raised the issue of giving sweeping powers to ministers. The Executive's consultation document "An Open Scotland" stated that the veto could be exercised only on the
"collective decision of the Scottish Ministers."
In the draft bill, that has been watered down to
"after consulting the other Ministers",
which is a less demanding hurdle.
I am happy to clarify that point. There is no watering down at all. If we had used the term "Scottish Ministers", by virtue of interpretation of the Scotland Act 1998 it would have meant that each minister could have done something individually. We therefore had to devise a statutory means of bringing about a collective decision of the Cabinet, which did not open the door to individual ministers. Making the decision the First Minister's after consultation was the device that we found. I assure Michael Matheson that the intention is exactly the same. We found a statutory means to fulfil that intention without creating a loophole.
I take on board the minister's comments, but I would welcome it if he would consider tightening up the way in which the veto can be used to ensure, as the consultation document did, that the veto can be used only in relation to information of exceptional sensitivity or seriousness, to provide greater safeguards on when it will be used.
Will you wind up, please.
Will the member take an intervention?
The member needs to wind up.
Sorry. I think that I am on my last minute.
As Margo MacDonald said, the draft legislation is a start and it should be welcomed. I support that. I hope that the minister will take on board the concerns expressed in the chamber today and that he will have given them full consideration and sought to remedy them by the time the bill comes before Parliament and the Justice 1 Committee.
I am pleased that the Parliament has had this early opportunity to debate freedom of information. The publication of the Executive's draft freedom of information bill is an important step in Scotland's development following devolution, as today's debate has demonstrated. The adoption of an effective freedom of information regime will send out an important signal about how we want the Scottish public sector to operate.
Openness is essential. It is no exaggeration to claim that openness is the bedrock of good democracy and good government. Indeed, the consultative steering group on the Scottish Parliament was absolutely clear that openness should characterise Scotland in devolution. Our proposals are designed to deliver that.
Openness should not be only on our terms. If openness is to bring real accountability, it is vital that the availability of information is not reliant on various non-statutory regimes or limited statutory ones. A number of the contributions this morning have focused on the need for legislation and have illustrated instances of information being released through codes without statutory force. It is an extremely weak argument to say, however, that because of that a statutory regime, which will ensure that that and other information in future will be disclosed, has no purpose. I will return to that point later, time permitting.
If public confidence in the effective and responsible operation of public authorities, including the Executive, and indeed the Parliament, is to be guaranteed, it is essential that we introduce a robust statutory freedom of information regime that cannot be undermined or sidestepped.
I say public authorities including the Executive and the Parliament. That leads me to part of Phil Gallie's contribution, in which he claimed—I do not know whether this is the case, because I have not checked, but I would be surprised if it were—that the Conservative group, more than any other group, has asked for limitations on the amount of work that committees undertake in private. A great deal of today's debate has focused on how the legislation will affect the Executive and on which of its deliberations should be subject to the freedom of information legislation. However, there are interesting questions about how the Parliament and its committees will be affected by the regime that we seek to introduce.
To be fair, in many of the committees, it is good practice for the convener or whoever is in the chair to explain to everyone in attendance why certain aspects of the meeting are to be taken in private, to allow the public and press to understand that there is a good reason for any private sessions that take place. On the Transport and the Environment Committee, there have been no divisions over whether matters should be taken in private.
I thank Mr Kerr for that information. He will understand that I have not been a member of a committee, so I have not found myself in the situation. His knowledge of the procedures is much more profound than mine. I am grateful for his reassurance. Nonetheless, once the legislation is, as we hope, in place, conveners and members of committees, in taking decisions about whether to hold particular proceedings in private, will have to give consideration to the fact that such decisions could be challenged under the legislation.
The freedom of information regime cannot be undermined or sidestepped. On that basis, I am afraid to say that almost all of David McLetchie's contribution seemed rather irrelevant. He asked at considerable length for clarification of our position on disclosure of information. It is hard to imagine what greater or more detailed clarification he could have than a draft bill of 72 sections and all the explanatory notes that go along with it.
The bill is the Executive's view of how a freedom of information act should look. It is therefore a pity that David McLetchie largely ignored the draft freedom of information bill and instead took the time to dig over some sad old political point scoring, some of which went back a matter of years, even in a Parliament so young. What the Conservatives were displaying was cauld kail het again, as we have often had thrown at us from the Opposition benches.
David McLetchie raised the particular example of the decision on siting paediatric cardiac services in Edinburgh or Glasgow. As the former Minister for Health and Community Care, I have some insight into the process that took place, which was very different from the one that David McLetchie attempted to construct. I am clear why the quality of the advice regarding the siting of paediatric cardiac surgery in Scotland that was offered to health ministers at the time might have been compromised had it been made in the expectation of disclosure. It is extremely important, when taking a decision like that, that ministers receive advice that is clear and frank.
I have a genuine question. Although I accept that some people may have given confidential and professional information to the Minister for Health and Community Care in the instance that Iain Gray mentioned, a Swedish expert, who is acknowledged as the world's No 1 expert, was approached. He gave an opinion that was contrary to that which the minister eventually reached. I know for a fact, because I inquired, that he would not have been in the least worried had that information been made available to people such as myself who inquired.
Margo MacDonald has referred to one piece of work, one piece of evidence and one piece of advice that was available at the time. The minister, when taking a decision, must examine and assess all the advice, opinions and judgments that are available. I assure Ms MacDonald that much of the advice that was available to the health ministers had been prepared and given in the expectation that it would be treated confidentially.
Much of that advice was based on facts and statistical information that was made available at the time and would have to be disclosed under the draft legislation that we are discussing. Mr McLetchie posed the question, what would the difference be? The difference would be that, if the freedom of information bill was enacted, under the proposed regime disclosure could have been appealed to an independent judgment of public interest: the Scottish information commissioner.
Does the minister acknowledge that the appeal, even if it had gone against the Executive, could have been overruled by the issue of a ministerial certificate pursuant to section 51 of the draft bill?
Of course that is the case. I will return to the ministerial veto soon.
Mr McLetchie would also have to acknowledge that that veto would be subject to judicial review, were it felt that it was outside the powers that the freedom of information act gave for the ministerial veto, so it would not be the absolute final decision.
The minister will be aware that the process of judicial review applies only on limited grounds. It is not on the substance of the issues; it is essentially about matters of law and procedure, not the content of the information.
Mr McLetchie will also be aware—and Mr Wallace has made the point already—that the ministerial veto would seldom be used and only in unusual circumstances.
Does the minister agree that, in the SQA inquiry, Mr Galbraith tried to meet the demands of the Education, Culture and Sport Committee? It runs counter to the events that took place to imply that he would have used the ministerial veto.
That is a fair point.
The Scottish information commissioner sits at the heart of our proposals. Everything that has been said today has underlined the importance of the commissioner's role as a powerful, independent arbiter to protect the public's right of access to information.
Mr Gallie raised questions early in the debate about the independence of the commissioner, given that the appointment is considered by the Parliament. I repeat the point that Mr Wallace made, which is that it is a decision of the whole Parliament, not the Executive. The Parliament will nominate the commissioner; the appointment is by the Queen. That is a protection of the independence of the commissioner, which applies to similar public bodies.
Is it not the case that the Parliament will endorse a proposed appointment made by the Executive—by the minister? Would it not be worth while to consider other means, such as an interview process with all-party participation, followed by a recommendation?
That is the likeliest outcome. I certainly hope that it would be. In this country, that is what we call democracy.
In the course of the debate, the bill has been accused of making no change. The creation of the post of commissioner makes that a ridiculous assertion. The commissioner will be a vital watchdog protecting the interests of the public. If someone wants to find out why their local authority has taken a particular decision, for example, in allocating council houses, the bill will help. If a parent wants to know how money is being spent in their child's school, the bill will help.
I choose those examples advisedly, because Gordon Jackson and Pauline McNeill are right. The bill is about more than the hunger of Opposition parties for their next press release or their next witch hunt. It is, above all, about the right of individual citizens to know information that affects their lives. If a public body will not release the information being requested, the commissioner will consider an appeal. No longer will people find themselves involved in long-drawn-out exchanges of correspondence, a war of attrition that has in the past invariably been won by the authority.
Clearly, the effective operation of freedom of information will be driven by the commissioner. It is because of that that I am amazed at the attempts that we have seen today to identify, in great detail, what would and would not be disclosed under this legislation; it has almost been an attempt to develop a list of what might be made available.
In my speech I referred to an interpretation of a previous piece of legislation which relates to freedom of information: specifically, access to medical records, which has been interpreted by the Scottish Mental Welfare Commission as not applying to it. Could Iain Gray address whether there will be the ability for anyone to make their own judgment on the issue?
I will take that point away for consideration and perhaps respond to Mr Quinan—it is a new one to me.
We can have no list of what will be disclosed, because that will be decided and adjudicated on by the commissioner.
The ministerial veto has been discussed. I repeat Jim Wallace's reassurance that there is no watering down in this section of the bill. The veto is to be exercised collectively because that is the way the Scotland Act 1998 works.
I make the point to Roseanna Cunningham that there is no comparison between the use of the veto and the frequency of the use of Sewel motions. Sewel motions are a device unique to our Parliament and our constitution, whereas there are examples from similar freedom of information regimes where the ministerial veto is seldom used.
Much has been made today of the exemptions. Let me repeat Jim Wallace's assurance that those are not loopholes. Exemptions are found in every freedom of information regime around the world; access to information is not, and never has been, an unconditional and open-ended right. There will always be information that must be protected against disclosure, and our draft bill provides for that. The exemptions are about ensuring that freedom of information operates to the benefit of the people of Scotland. That is why we have maintained our harm test of "substantial prejudice".
I will deal with the case of the Lord Advocate and the Crown Office that has been raised by Ms Cunningham and others. The reason that the Lord Advocate is exempted is because, under the terms of the Scotland Act 1998, any decision taken by him or her as head of the systems of criminal prosecution and investigations of deaths must be taken independently of any other person, so under the terms of that act he or she could not be overruled by the commissioner. The Crown Office is subject to freedom of information and it is the duty of the prosecution service to act in the public interest, but in many cases there are competing interests, not only those of the victim and the accused, but between victims and between victims and witnesses. We will review the nature and type of information that can be made available privately to victims.
The great exemption of Cabinet minutes, which so exercises David McLetchie, begs the obvious question: does William Hague intend to publish his Cabinet minutes if, God forbid, he becomes Prime Minister? Will he signal his intent to do so by publishing shadow Cabinet minutes now? If so, I will be first in line for the shadow Cabinet minutes for the first meeting after Ann Widdecombe's famous foray into drugs crime policy. I would like to see the minutes of that meeting. The truth is that Mr McLetchie is the one who is hiding. He is hiding behind the certain knowledge that he will never appear in the Scottish Cabinet minutes.
Will the minister give way?
Hang on, Mr McLetchie. We are over time.
I apologise to Mr McLetchie, but I must wind up now.
We will have to consider and discuss the issue of the charging regime during the consultation. Members have raised some fair points in that respect.
So where do we go from here?
To the wind-up, I hope.
The consultation on the draft bill is important; it will run for 12 weeks and closes on 25 May. We will remain true to our commitment to introduce an effective freedom of information regime.
I commend the motion to the Parliament. This is the right bill at the right time.