Freedom of Information (Amendment) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S4M-04791, in the name of Nicola Sturgeon, on the Freedom of Information (Amendment) (Scotland) Bill.
14:52
I am pleased to open this debate on the general principles of the Freedom of Information (Amendment) (Scotland) Bill. First of all, I thank everyone who gave evidence to the Finance Committee. I am pleased to note the committee’s broad support in its stage 1 report for the bill’s general principles. I am particularly grateful to the convener and committee members for their detailed scrutiny at stage 1 and, as I have said, I welcome their recommendation. I might refer to specific points in the committee’s report in the course of my speech but, at this stage, I will say that the Government is considering the report very seriously and will respond to all its key points in due course and in light of points made in today’s debate.
As members will be aware, the amendment bill has its origins in the desire to right two weaknesses in the Freedom of Information (Scotland) Act 2002. I realise that some might have wanted more extensive reform of the 2002 act but, as the Scottish Information Commissioner stated in evidence to the committee, the Scottish legislation does not need significant correction. I believe that that is a tribute not only to those who were involved in developing the act in the first session of Parliament but to how the act has been implemented by freedom of information practitioners across our public authorities and to its effective regulation by the office of the Scottish Information Commissioner.
In his special report, which was presented to the Parliament in January, Scotland’s first Information Commissioner noted:
“Scotland’s freedom of information”
legislation
“is widely recognised as being strong and withstanding international scrutiny.”
However—and this is an important point—constantly evolving issues around information rights, amid ever-increasing expectations of transparency and openness, mean that we must ensure that our legislation remains fit for purpose as it enters its second decade.
I hear what the cabinet secretary says about the way in which the legislation was developed in the first place. She is right about that. However, it has been suggested that we should have an almost prospective approach, so that public authorities that are, for example, considering transferring responsibilities to trusts or arm’s-length external organisations should, at that point, consider whether the organisation should be subject to FOI requirements. In other words, rather than our making retrospective changes, public authorities should make that judgment at the time, so that we do not always have to play catch-up. Is that something that the cabinet secretary would consider?
That is a fair point, and I will consider it. Willie Rennie might be interested in some of the things that I will say later in my speech, which will address some of the points that he is making.
I turn to the part of the bill that deals with historical records. In 2009, the Scottish Government consulted on the proposal to reduce the lifespan of those exemptions in the 2002 act that cannot be applied after a period of 30 years. Although consultation showed broad support for the principle of earlier release of information—which I am sure that all members support—concerns were raised about a blanket reduction for all the relevant exemptions, particularly those that relate to issues of confidentiality.
Exemptions are there for a purpose: to ensure reasonable and proportionate protection for certain types of information. The Scottish Government recognises that in certain cases there may be specific concerns for certain public authorities about reducing the lifespan of a particular exemption. However, it is not currently possible to vary the lifespan of individual exemptions.
The bill proposes to introduce that flexibility so that, wherever possible, the lifespan of exemptions can be reduced while retaining the protection afforded by longer time periods where that is still necessary or appropriate. In the event of Parliament granting that revised power, it is the Government’s intention to consult on an order reducing the lifespan of most of the 30-year exemptions at the earliest practical opportunity. I reaffirm that the order will be fully retrospective.
I am conscious of concerns about the potential for complexity in introducing additional lifespans, as well as concern about the impact on resources. Further stakeholder engagement will allow for those concerns to be further explored. However, I believe that the goal of getting more of the public’s information into the public domain earlier is of overriding importance.
Once revised lifespans are introduced, it will be a matter for individual public authorities to decide whether to proactively release historical information or to reactively apply the longer lifespans in response to a relevant request.
It is important to note that, in 2009, while it was not yet a matter of law, the Scottish Government took the proactive decision to routinely open Scottish Government files at 15 years rather than the traditional 30 years. That has put an additional 12,000 files into the public domain years earlier than was originally intended. Doing that has ensured that Scotland remains far ahead of the rest of the United Kingdom. The decision to take that forward-looking step was taken by Bruce Crawford, who rightly observed at the time:
“We are now moving from a period of need to know to a period of right to know.”
The information that has been released years ahead of its original opening date has revealed details about some of the key moments in recent Scottish history. Our knowledge and understanding of events such as the introduction of the poll tax, the Piper Alpha disaster and the closure of Ravenscraig have been enhanced by the policy of early release, and I look forward to files from 1997 soon becoming available, as that was the year that heralded the start of the process that led to the establishment of this Parliament.
The second area where the 2002 act has been shown to be unsatisfactory relates to the ability to bring a prosecution in the event of requested information being deliberately destroyed, amended or concealed with a view to preventing disclosure. It is clearly right that those committing an offence under the act are held to account.
At present, such an offence can be prosecuted only within six months of its being committed. Due to the potentially lengthy timescales between request and appeal, it is highly unlikely that an offence that was committed during the initial handling period would be detected and brought to prosecution within six months of its being committed—and if more than six months have passed since the offence, the offence cannot be prosecuted. Indeed, the Information Commissioner estimates that it has not been possible to pursue investigations into suspected offences on eight occasions as a result.
We therefore propose to make the provision more effective by establishing the time limit for bringing a prosecution from the discovery of the offence rather than its commission. It is clearly important that those who seek to frustrate legitimate requests for information can be properly and fully held to account.
I turn to what I suspect is the most controversial part of the bill in order to deal with it openly with the Parliament. The Finance Committee has been strongly critical of the section of the bill that, for shorthand reasons, I will refer to as the royal exemption—the section that would introduce an absolute exemption for information relating to communications with Her Majesty and the heir and the second in line to the throne. I understand those concerns and agree strongly that absolute exemptions should be used only in limited and narrowly defined circumstances, as was the original intention. It is, however, worth recapping the reasons why the amendment has been proposed.
The intention is to ensure appropriate protection for the monarchy. We live in—and, as far as the Government is concerned, when Scotland is independent we will continue to live in—a constitutional monarchy with a shared head of state. Like any head of state, the monarch is entitled to an appropriate level of protection as far as the confidentiality of information is concerned. There is a strong argument that the position of the Queen, as the head of state that we share with the rest of the United Kingdom, should not be compromised by different approaches to the handling of the same or similar information.
That said, I hear and recognise the strength of feeling that has been expressed on the issue. It is the Government’s intention to give full and serious consideration to the Finance Committee’s report before determining what amendments we will lodge at stage 2. We will look at whether the existing public interest test provides adequate protection, as some have said, or whether any absolute exemption would be better expressed more narrowly than has been the case. I will put forward the Government’s view so that the committee can consider it at stage 2.
I turn to the extension of coverage. When I appeared before the committee, there was significant and considerable discussion of the matter. It is an area that many of those who gave evidence to the committee also expressed strong views on. I note all those comments and submissions. Many of the comments that have been made have arisen from a frustration that the power in the 2002 act to extend its coverage has not yet been used by any Administration. It is not correct to say that the range of bodies covered by the act has remained completely static—it has not. The public sector landscape is fluid and on more than 60 occasions changes have been made to schedule 1 as public authorities have been created or dissolved. The power to ensure that the schedule remains current has also been used and is due to be used again next year to bring in the rules councils.
I do not believe that there is a weakness in the strength or scope of the power itself; however, I recognise the concerns that have been expressed around the use of the power. I intend to lodge amendments at stage 2 requiring regular review of the use of the order-making power as well as a widening of the scope of required consultation. Both those amendments were supported and suggested by the Scottish Information Commissioner.
I also reiterate my offer to return to the Finance Committee, at its invitation, to debate the wider issue of extension of coverage and to set out a clear timeline for that work. I am happy, in the context of that work, to give due consideration to the point that Willie Rennie made. I am also minded to produce an order, in early course, to address the fact that outsourcing by local authorities has eroded the protection of freedom of information legislation. I will say more about my intentions in that regard before the conclusion of the bill’s progress through the Parliament.
Important though freedom of information legislation is—I made this point to the Finance Committee, and it is a point that I believe in very strongly—we must remember that it is not the only legislative route available to those accessing information. The Government has a notable record of producing legislation and regulation promoting openness and transparency. For example, the Scottish housing charter requires landlords to make information available to their tenants about their decision-making processes and service provision. Those rights are regulated and are enforceable by the Scottish Housing Regulator. Increasing transparency within supply chains for major contracts and capital infrastructure programmes is also a key feature of the procurement reform bill.
I do not think that anyone would dispute the cabinet secretary’s argument on that, but only those who are actively engaged in housing associations and in those technical areas would understand the process by which information could be drawn down via such routes. Given the greater understanding of FOI, would it not be better that the powers be available under FOI legislation?
In many senses, that is the point that I am trying to make. It is important to look at the types of information that the public should have a right to access and then take a critical view on what is the best way of promoting that access. It may be better to promote and raise awareness of existing routes to provide that access, or it may be better to use freedom of information legislation. The point that I am making is that we should not necessarily always assume that the answer is to extend the 2002 act, but, if that is the conclusion, nor should we be afraid of or hold back from doing that. It is appropriate for this Parliament and, indeed, wider Scottish society to have that debate over the next period.
I had hoped to refer to the duties imposed on public bodies under the Public Services Reform (Scotland) Act 2010 and our plans to introduce new record management duties next year under the Public Records (Scotland) Act 2011.
I believe that transparency is not an optional add-on but an integral part of policy making. As the minister responsible for this area of policy, I am committed to ensuring that we look at how we promote and increase transparency not just through freedom of information but generally through our policy-making processes.
In conclusion—I think that I am out of time—the Freedom of Information (Amendment) (Scotland) Bill is an important bill that will right a couple of weaknesses in the Freedom of Information (Scotland) Act 2002 and pave the way for that bigger discussion around the possible extension of the act that I think it is appropriate for us to have.
I am happy to move,
That the Parliament agrees to the general principles of the Freedom of Information (Amendment) (Scotland) Bill.
We are extraordinarily tight for time today, so I ask members to confine themselves to their allocated time. Mr Gibson, you have nine minutes, including interventions.
15:06
The bill amends five provisions in the Freedom of Information (Scotland) Act 2002. In my speech, I will focus on the royal exemption and the extension of FOl coverage.
The committee’s approach is set out in our report. I thank everyone who worked with us during our evidence gathering. Clearly, the evidence impacted on the committee, given the conclusions that we reached. The committee was content with sections 2, 3, 4 and 5 of the bill. Due to time restrictions, I cannot detail those provisions now, but they are addressed in our report.
A contentious section of the bill is section 1, on “Royal exemption”, which will amend section 2 of the Freedom of Information (Scotland) Act 2002. At present, if a public authority is applying the exemption for information relating to communications with Her Majesty, other members of the royal family or the royal household, the public interest in whether or not to release must be considered. The public interest test is a balance that requires the public authority to weigh arguments in favour of release against those for withholding. A limited number of exemptions—for example, for court records, national security and defence—are “absolute”, which means that the public interest need not be considered. The bill would make absolute those elements of the exemption relating to communications with Her Majesty and the heir and the second in line to the throne.
The Scottish Government has stated that its purpose is to ensure consistency of approach across the UK given the “shared monarchy” and so ensure an appropriate level of confidentiality regarding such communications. The Scottish Government considers it
“vital to ensure that the monarch, as well as the heir and second in line, can operate according to established constitutional conventions.”
The cabinet secretary elaborated on those points in her oral evidence, as she did just a few minutes ago.
However, the previous Scottish Information Commissioner held
“significant concerns in relation to the proposal to introduce an absolute exemption ... Absolute exemptions are not regarded as good practice, and I consider this measure to be unnecessary.”
The current Scottish Information Commissioner retains reservations. In her submission to the Finance Committee, she stated:
“It is disappointing that Ministers have chosen to retain the amendment”.
Unison opposes the provision and is concerned about disapplication of the public interest test. The Campaign for Freedom of Information in Scotland does not believe that the Scottish Government should copy the UK Government.
On creating an absolute exemption, the current SIC emphasised in oral evidence to the committee:
“Making an exemption absolute further undermines and erodes rights to information. It removes from Scottish public authorities, including me and the Government, the flexibility needed to consider the public interest in relation to what can and cannot be disclosed.”
She argued that an absolute exemption would be a “retrograde step”—the CFIS supports that view—and, on appropriate protections, that
“there is already adequate provision for the royal family and for discussions that any public authority may need to have that are confidential, are covered by other rights or are a matter of national security.”—[Official Report, Finance Committee, 12 September 2012; c 1510 and 1515.]
The SIC also said, in her submission, that the measure is
“in direct conflict with the public interest, and for this reason I would urge Members to consider carefully whether such an amendment is desirable and appropriate before proceeding.”
She considered that the exemption
“would have the effect of creating Scotland’s most wide-ranging absolute exemption in terms of its scope.”
On international good practice, the SIC stated that although the Scottish Government argues that the proposed amendment that the bill would bring in aims to create consistency with UK legislation, it will in practice lead to inconsistency in handling requests under Scots law. Requests for environmental information under the Environmental Information (Scotland) Regulations 2004 originate from a European Union directive and contain no specific exemptions for royal communications. Concerns were also raised that the amendment brought in at Westminster was not subject to full scrutiny.
The CFIS said:
“The disadvantage would be that the public would never have the right to know, whereas, at the moment, if there is a public interest, the public has a right to know. The impact would also mean that whoever is writing the correspondence need never fear that it would be made public”.—[Official Report, Finance Committee, 12 September 2012; c 1501.]
The evidence submitted against the provision carries weight and authority.
The cabinet secretary said she would
“listen very carefully to the evidence given to the committee.”—[Official Report, Finance Committee, 12 September 2012; c 1532.]
Depending on the committee’s report, she said that she would consider whether amendments may be appropriate at stage 2. The committee seeks removal of the royal exemption from the bill, and I am pleased that the cabinet secretary will give further consideration to that.
Extending FOl coverage to public contracts with arm’s-length external organisations featured prominently in a number of submissions, such as those from the CFIS, South Lanarkshire Council, Consumer Focus Scotland, the Scottish Council for Voluntary Organisations, Unison Scotland and the Scottish Trades Union Congress.
As we all know, the power to extend FOI coverage exists under section 5 of the 2002 act. That power allows Scottish ministers to designate public authorities, such as persons who provide a contracted service on a council’s behalf. The issue was the focus of consultations by both the previous Administration and the current Administration. However, even after those consultations, the bill does not address the issue and the Scottish Government has not stated in evidence to the Finance Committee whether—and if so, when and on what—it will introduce firm proposals.
Audit Scotland’s report on how councils are utilising arm’s-length external organisations identified around 130 such bodies, and it is concerned that a consequence of using more complex delivery structures involving ALEOs is that the public may be less clear about who is responsible for services and whom to complain to if they are unhappy. In its report, Audit Scotland stated:
“Maintaining transparency is a key objective in good governance.”
The then Minister for Parliamentary Business and Chief Whip wrote to the committee setting out the Scottish Government’s approach to the extension of coverage. He referred to the House of Commons Justice Committee’s post-legislative scrutiny of the UK Freedom of Information Act 2000 and stated that he was “persuaded” that the UK committee’s position is the right one. That position is that
“openness should follow public money when public services are outsourced”
and that that
“can best be achieved through clear and enforceable contract provisions rather than by designating commercial companies under the Act”.
In response to a question about how the Scottish Government encourages national health service boards and local authorities to prepare such
“clear and enforceable contract provisions”,
the cabinet secretary said:
“With regard to contracts—whether they are NHS contracts with commercial organisations, or those of local authorities or other public authorities—there is a debate to be had about how we ensure that we have the right balance between commercial confidentiality and the public’s right to access appropriate information.”—[Official Report, Finance Committee, 12 September 2012; c 1524.]
Discussing the matter with the committee, the CFIS was “not persuaded” by the Scottish Government’s arguments. When asked whether it would “take at face value” the position of the Scottish Government that it will return to the issue of extension should the bill be passed, the CFIS said:
“We are really just fed up waiting. We emphasise that it is not just the current Administration that has broken promises. We still do not understand why, when the bill was published, there could not have been a timeline and a list of specifics. However, even if specific organisations were named, that would not go far enough, because we know from the Audit Scotland report that more bodies will be created in future and that, from our reading, those might not be covered by freedom of information legislation.”—[Official Report, Finance Committee, 12 September 2012; c 1506.]
The SIC’s view is similarly clear. She stated in oral evidence:
“I understand the logic of clarifying the act before extending its coverage, but I am disappointed that the opportunity has not been taken to have a discussion about how and to where we should extend it. In not doing that at the same time, we are missing some serious and significant issues, some of which have already been raised in one form or another.”
She highlighted that the focus should not be only on which bodies are brought under the 2002 act, but on extending designation
“to include information about public services ... to preserve and enhance people’s right to information about how ... public services are delivered.”
She also said:
“The designation of some bodies might have been appropriate 10 years ago, but with a review we might find that that is no longer appropriate. The world is changing rapidly, so let us review how bodies are designated.”—[Official Report, Finance Committee, 12 September 2012; c 1509.]
In her letter the committee following her oral evidence, the SIC set out three suggestions for amendment of section 5 of the 2002 act: a requirement for routine review of section 5; wider consultation; and consideration of the public interest.
The committee’s conclusion on the issue invites the cabinet secretary to detail what action the Scottish Government will take, including stage 2 amendments. I am pleased that the cabinet secretary made it clear in her opening speech that she will reconsider the issue at stage 2.
Examination of the royal exemption provision and extension-of-coverage issues formed the bulk of our stage 1 scrutiny, given the evidence that was presented to us. Those matters go to the heart of the principles of an open freedom of information regime. The committee carefully assessed and reflected on the evidence, and I look forward to hearing members’ views.
The Finance Committee recommends that the general principles of the bill be agreed to.
15:15
On behalf of the Scottish Labour Party, I commend the committee for its robust and constructive interrogation of the Freedom of Information (Amendment) (Scotland) Bill. The committee raised a number of important points, on which I will touch later in my speech.
We should acknowledge the history of the FOI legislation and the significant step forward that it represented in making the business of Government and the public agencies connected to it more accountable. For me, as a representative of the Scottish Labour Party, it is also important to recognise that the Labour-led coalition in the Scottish Parliament and the Labour Government at Westminster introduced the legislation in the first place.
The bill should have been an opportunity for us to reflect on how effective the FOI legislation has been and to consider what could be done to ensure that public bodies are made more accountable, transparent and open. It should have been an opportunity to ensure that the public feel confident that their requests for information are dealt with within the legal framework that was set out in the 2002 act. In reality, however, the bill is a feeble attempt to make it look like the Government is doing something. It lacks ambition.
The Labour Party shares the disappointment that was expressed by a number of those who provided written evidence to, or appeared before, the Finance Committee.
The committee has invited the cabinet secretary to remove the section that allows exemption for correspondence with members of the royal family. The Scottish Labour Party agrees with the committee on that, but the cabinet secretary argues for parity across the United Kingdom.
Perhaps rightly, Paul Martin gave some credit to former Labour Administrations for introducing FOI legislation. Would he give credit to the Labour Government for introducing on 25 February 2010 an order that gave absolute exemption to Her Majesty?
The absolute clarity that I would give on that point is that the Scottish Parliament considers legislation in the context of the devolved settlement, which allows us to examine how effective it can be in the Scottish context. It is interesting for a minister who promotes separation to argue for parity across the United Kingdom. The cabinet secretary may wish to elaborate on that in her closing speech.
The argument should be about whether we accept the principle of absolute exemption for the royal family. It is clear that all the evidence that the committee received on the issue points towards retaining the status quo. In the evidence that she gave on behalf of the Campaign for Freedom of Information in Scotland, Carole Ewart provided a reasonable explanation of why the existing legislation has served us well. There is no evidence to suggest that the current system has been abused. I ask the cabinet secretary to reflect on the written and oral evidence that has been given. I welcome her earlier comment that she will do that.
A number of respondents to the consultation on the bill raised concerns about what is not included in the bill. Particular concerns were raised in connection with arm’s-length external organisations and housing associations, and I would like to reflect on my experience of dealing with housing associations as a constituency MSP.
In general terms, I have found community-based housing associations to be more than willing to provide information to members of the public. In my experience, they are usually well managed by local management committees, which ensure that they are transparent and open. However, my experience in requesting information from national housing associations such as Link Housing Association has been more disappointing. Although such associations are recipients of significant sums of public money, my experience is that they operate on the basis not of the public having a right to know but of what they think that the public should know.
The 2002 act provides a legal framework for members of the public, including MSPs, to know what to expect from certain public organisations when they submit a request for information. It is clear from my experience of dealing with the Link Group that the absence of any legislative framework means that it is in control of how and when information is released to me, as the local MSP.
There are opportunities for organisations to consider how they can provide information proactively on the web, so that the public can access it rather than have to request it, but resources are a challenge in that respect. Although I am convinced that that is not the case for larger housing organisations, resources are a particular challenge for smaller housing organisations, and research must be carried out to ensure that smaller organisations are not adversely affected.
I note that the Scottish Information Commissioner suggested that the Government could legislate for a routine review of which bodies should be included within the realms of the FOI regime, and I welcome the cabinet secretary’s comments on that. We think that such an approach should be given further consideration.
I simply remind Paul Martin of what I said in my opening remarks—that I will lodge an amendment on regular review at stage 2.
I welcome the cabinet secretary’s constructive approach and look forward to scrutinising such an amendment at stage 2, to ensure that it will be effective.
It is disappointing that the Government has attached so little priority to openness and the provision of accessible information. For the Parliament and our democracy to be credible, we must ensure that the information that requires to be provided to us is provided on a right-to-know basis. The law must not be on the side of a secretive Government that drip-feeds information for media management purposes. That is clearly unacceptable.
We would like to lodge a number of amendments at stage 2. We will support the bill at stage 1 on the basis that significant amendments will be lodged by the Government or Opposition parties and will be accepted.
15:23
I, too, thank the Finance Committee clerks and everyone who gave evidence to the committee, whether verbally or in writing.
The bill is short and—in the main—uncontentious. I think that the cabinet secretary was right to say that our freedom of information legislation does not need significant surgery. The two areas of contention have been addressed by every member who has spoken in the debate. One of them relates to something that is in the bill, while the other relates to something that is not in the bill but which some people believe ought to be.
The bill follows one of the Scottish Government’s six FOI principles, namely that it ought to adjust the regime when it is necessary and sensible to do so. On the strength of what we have seen and heard thus far, we will certainly support the general principles of the bill at decision time.
Section 1 caused the most debate in committee, and the committee’s convener was right to touch on it. That provision is dubbed the royal exemption by all. I find myself in a strange position today. I agree with the UK Labour Party on the point; I disagree with the Scottish Labour Party on the point; I agree with the Scottish Government on the point; I disagree with everybody else on the committee on the point; and I think that I disagree with our Liberal brothers and sisters on the point—I wait to hear what Willie Rennie says but, from what he has said before, I think that I disagree with him, too.
The views on section 1—the royal exemption—were mixed in the written evidence that was given to the committee. A quick tot of the submissions shows that 12 expressed no view, 11 supported the inclusion of section 1, and 14 were against its inclusion. It is fair to say that the views were mixed and were not all one-sided or significantly in favour of one side of the argument.
I was persuaded by points that the Scottish Government and the bill team made to the committee. Andrew Gunn talked about a
“consistency of approach to information relating to communications with Her Majesty, given the commonality of the monarch as shared head of state.”
Zoe Mochrie said:
“I think that it is a reasonable amendment, and our intention is to ensure a consistent approach across the UK with regard to information of similar types.”—[Official Report, Finance Committee, 5 September 2012; c 1470, 1471.]
Of course, the monarch has a duty and a right to counsel, warn and advise her ministers, and the royal exemption already applies in Wales, Northern Ireland and England.
I accept Gavin Brown’s point about consistency across the UK, but does he accept that the provision would mean inconsistency with environmental regulations, which are quite different?
John Mason is correct to point out that issue, which came up in evidence to the committee. I was left to decide whether I preferred a small inconsistency with one set of environmental regulations or a larger inconsistency on the royal exemption with the UK as a whole. I certainly come down in favour of having the royal exemption, which is the position that the Scottish Conservatives will take on the bill.
It is worth pointing out that, as the Deputy First Minister said in giving evidence, it would be unusual for correspondence from the monarch to the Prime Minister to be treated differently from correspondence from the monarch to the First Minister. On that basis, we accept section 1.
The other sections are probably less contentious. Section 2 concerns refusal notices. Section 3, “Accessible information”, says that when information is “reasonably obtainable” and publicly available it need not be provided in response to a request. That might cut duplication and cost in a small and modest way.
Section 4 relates to historical periods. There is some contention about whether a flexible approach is better or whether a rigid and consistent approach should be taken, but I favour the arguments that the Scottish Government has made. The downside is some inconsistency and perhaps an increase in complexity, but there are different types of information, and the Scottish Government is right to apply slightly different timelines to different types of information, with the overriding proviso that information that can be released earlier should be released earlier. We were given an assurance on that today.
It is clear that the idea of a six-month time limit for proceedings has not worked in practice. When a body has 20 working days to respond to a request, an applicant has 40 working days to ask for a review if they are dissatisfied and a body has 20 working days to issue a review response, it is fairly clear that six months is not long enough. That was one of the few things that the initial legislation got wrong, so I am pleased to see section 5 of the bill.
My time is running out. I repeat that, come 5 o’clock today, we will support the bill at stage 1.
We now move to the open debate. I remind members that time is extremely tight. Members have up to six minutes.
15:29
We are hearing from across the chamber that the starting point is that FOI legislation is a good thing and that, on the whole, openness is good and secrecy is bad. Obviously, there can be exceptions, but our starting point should be to presume that information should be in the public domain rather than to presume that it should not be.
In that regard, many good things are happening. Information is released in the vast majority of cases, and I think that more than 70 per cent of the Scottish Information Commissioner’s decisions have been in the Government’s favour. Therefore, I found slightly disappointing both Paul Martin’s tone and his suggestion that the Government is not open. The real debate today is about the fact that organisations that are covered by FOI are generally open whereas organisations that are not covered by FOI are not.
The bill seeks to strengthen FOI in a number of ways, including through a strengthening of the deterrent against the deliberate destruction of information and a reduction in the lifespans of exemptions. I think that most of us welcome those proposals, but there have been areas that have been disappointing to the Finance Committee, civic society and the public at large. We have already heard about exemptions for the royal family. I certainly endorse the recommendations in paragraph 34 of the Finance Committee’s report on the bill. It is good that the cabinet secretary said that she is giving the matter full and serious consideration—that is also mentioned in paragraph 23 of the report—although, personally, I do not get too excited about the royal family.
I want to concentrate more on other organisations, which are covered in paragraphs 57 to 78 of the report. Two main types of organisation might be considered for inclusion under FOI. First, there are bodies that were previously covered by FOI as part of an organisation that was covered by it, such as a council, but then moved out. We call them ALEOs—arm’s-length external organisations—and there are many in Glasgow. Glasgow Life, for example, used to be part of Glasgow City Council and would have been covered by FOI, but it moved out as a separate legal charity. Bringing that organisation back in would be considered to be returning to the starting point rather than expanding the reach of FOI.
A number of witnesses made that point to the committee. In its submission, Unison said that freedom of information rights should
“follow the money”
and that, if they do not,
“the growing number of public services delivered by private companies and other bodies not currently covered by”
FOI will remain beyond a key tool of scrutiny and accountability. The point has also been made that it could cost more to have organisations not scrutinised than scrutinised. Unison made the point that progressively less information could be available.
Similarly, the Campaign for Freedom of Information in Scotland’s briefing states:
“CFoIS believes the public’s right to know is now far weaker than when FoISA was passed by the Scottish Parliament in 2002 and became effective in 2005. The key reason is that S5 of FoISA has never been used to add/designate more bodies.”
I accept Nicola Sturgeon’s point that there has been a bit of a changeover, but there has not been a major increase in the bodies that are covered up to now.
The campaign’s briefing also states:
“Our ‘information access right’ is strong and enforceable but the range of information we can access is getting smaller as public services are increasingly moved to other bodies and those bodies are not covered by FoISA. CFoIS wants our right to access ‘public information’ to be restored as well as extended.”
That relates to my point about the two types of organisation—restoring the coverage that existed before for some organisations and extending coverage to other organisations.
Should we expand FOI to other organisations? There is certainly an appetite for that in some circles, especially if the organisation receives public funds. For example, Paul Martin mentioned social rented housing. I think that he said that local, smaller housing associations are often quite good but national housing associations are perhaps more doubtful. I would include Glasgow Housing Association as one of the more doubtful ones in respect of how open it has been throughout its life. That seems to be something of an anomaly to me. From speaking to housing associations, it appears to me that some are very relaxed about FOI, and some—I accept—are less so.
Audit Scotland made a good point, which is included in paragraph 64 of the report and which Kenneth Gibson has already quoted, so I will not repeat it. The public are concerned about the service that is provided but less concerned—in fact, they may be confused—about the legal entity that provides it.
Cost is sometimes raised as a reason for not extending freedom of information, but that is the wrong place to start. Surely, we should first ask whether particular information should be in the public domain and then, if there is a cost, we should ask as a secondary question who should bear that cost. There is broad acceptance that costs should be shared in some way between the person who requests the information and the organisation that is asked for it. That can always be adjusted over time. However, I do not accept that cost should be the starting point in deciding whether access to information should be available.
It has been suggested that ministers already have powers to extend the list of organisations that are included under section 5. I welcome Nicola Sturgeon’s assurance that there will be regular review in future. For me, the key point is that we are looking for the right to get information, not just the possibility that information might be available. One point that came up at the briefing that Willie Rennie hosted yesterday is that there is a cultural problem of secrecy. We really want to change that culture.
15:35
Not many members would disagree in principle with the Government’s view that there is a need to reform the Freedom of Information (Scotland) Act 2002. However, like the majority of members on the Finance Committee, many members might consider that, having decided to update the legislation, the Government has introduced a bill that is, to say the least, far from adequate.
How strange that the Government started off with consensus and ended up introducing contentious issues that broke the initial accord and went against the will of the stakeholders who supported the proposals in the initial consultation. In short, there was a general desire for FOI to be extended and there was no disposition towards the extension of exemptions, yet the reverse of those positions has been put before us. The Government seeks no extension of FOI to cover arm’s-length organisations, housing associations and a range of other bodies that provide public services, and it has bewildered us all with its aim of extending the exemption from FOI to include the royal family.
In recent weeks, Salus, which is a health board’s arm’s-length organisation, has signed a contract with Atos Healthcare, which has recently come in for a great deal of criticism. Why would the Scottish Government not want to bring Salus into the ambit of FOI and allow us access to information that might be useful as we deal with issues in relation to the Welfare Reform Act 2012? That baffles me and many other people.
In effect, the Scottish Government has disregarded the views of stakeholders, which, regrettably, is becoming an all-too-familiar habit. For example, in response to the question
“Did you take part in the Scottish Government’s consultation on the Bill and how have your views been reflected?”,
the Campaign for Freedom of Information in Scotland responded bluntly and said:
“Yes, but our views have been mainly ignored.”
That cannot be a good situation to have when we are considering the bill.
The campaign advocates that private and voluntary organisations that receive funding from the public purse should be subject to the scrutiny of freedom of information. Surely such bodies should be subject to scrutiny by the eye of the public whom they serve. I agree with that principle, but the Government seems to have taken a different view.
The Government once advanced the concept of the arc of prosperity, but it now exhibits a predisposition towards the arc of secrecy, which extends from Victoria Quay to the High Court and which will continue to encompass far too many publicly funded bodies. For example, housing associations, which members have mentioned, benefit from high levels of funding from the Scottish Government—or, at least, they used to. If a local authority that builds council housing is subject to freedom of information laws, surely housing associations, which build social rented housing with public money, must be brought under the same scrutiny.
Equally, the basic principle of providing exemptions in a freedom of information bill is not only contradictory but incongruous. As the Scottish Information Commissioner has stated, that
“erodes the right to information enshrined in the Act.”
The bill makes only limited improvements to the Freedom of Information (Scotland) Act 2002. As Unison aptly put it, to fail to extend the act is to weaken it considerably. The Scottish Government has turned what was seemingly a simple and easy job of extending the 2002 act into an overcomplex task.
The Government said in its consultation on independence, “Your Scotland, Your Referendum”:
“We shouldn’t have a constitution which constrains us, but one which frees us to build a better society ... We must renew democracy and strike a new bond between government and the people based on trust and humility.”
How can the Government renew democracy if it allows organisations that provide crucial public services to continue to remain secret?
The Government must accept the calls from various stakeholders for amendments to the bill. I am pleased that the cabinet secretary indicated a desire to engage in discussion. As the Campaign for Freedom of Information in Scotland said in its submission:
“The ability to exercise our human rights ... is crucial in our modern democracy.”
I am puzzled as to why the Scottish Government appears to be intent on pressing ahead with the bill in a way that is reminiscent of the approach that Westminster took—wrongly—in 2010. The amendments that were agreed to two years ago were not subject to full scrutiny in the House of Lords, due to the imminence of the general election. The House of Lords Select Committee on the Constitution said:
“It is inexcusable that the Government should have taken so long to prepare this Bill that it has effectively denied both Houses of Parliament ... the opportunity of subjecting this important measure of constitutional reform to the full scrutiny which it deserves.”
Why would the Scottish Government take two years to consult, only to make the same mistake that the Lords, of all people, identified at Westminster?
Unison said in its submission that it was
“disappointed that the Scottish Government is making only minor changes via this Bill.”
Unison went on to say:
“the existing legislation is weaker and less clear than it should be for the growing number of public services delivered by private companies and other bodies not currently covered by FOISA.”
I could not agree more. I am not surprised that Unison thought that its views had been disregarded and said:
“Ministers have effectively ignored ours and others’ calls for action on extending the Act.”
The member must conclude.
The bill can be saved. We should vote for it today in the hope that the Government will listen to civic Scotland and show that the consultation was not a waste of time and that the bill can be useful.
I remind members that they must stick to their six minutes.
15:42
I am a new member of the Finance Committee and I thank my new colleagues for their work at stage 1. I do not have the benefit of having heard the evidence; this is a new subject for me. I am taking part in the debate as much because I want to be better informed at stage 2 and beyond as for any other reason.
I think that most people agree that we need freedom of information legislation. The Scottish Government has six principles on freedom of information, the first of which is that the Government
“Supports Freedom of Information as an essential part of open democratic government and responsive public services.”
If we want active citizens, who have the right to access information, be it information about them that an organisation holds or information on decisions that affect them and society more generally, we must have freedom of information legislation. Such matters should not be under the cloak of secrecy.
We have come some way in that regard, so the bill should not be viewed as revolutionary. The 2002 act changed things for the better and there is much better access to information than used to be the case. I understand that the Campaign for Freedom of Information in Scotland is somewhat frustrated—it will always want to go further on access to information, as is its right—but I cannot accept its conclusion that there is less access to information than there was when the 2002 act was passed, although I agree with it that transparency builds trust and that the ability to access information makes bodies more accountable. It is right to consider the freedom of information legislation.
The Deputy First Minister said that as a result of the formation of more ALEOs and trusts there has been an erosion of access to information. The campaign is right to say that less information is available than was the case when we passed the Freedom of Information (Scotland) Act 2002.
If time allows, I will return to the important issue of ALEOs, which the Finance Committee has been looking at.
I said that the bill is not revolutionary. One of the other principles of the Scottish Government in relation to freedom of information is to operate within the confines of the 2002 act. The bill seeks to build on that legislation.
The committee, rightly, focused on specific areas. However, the explanatory notes to the bill set out that it is intended to address
“the order-making power relating to the definition of what constitutes a ‘historical record’ and the lifespans of certain exemptions”
and
“the ability to prosecute in the event of information not being disclosed due to, for example, alteration, destruction or concealment.”
The 2002 act sets out that a record becomes a historical record after 30 years and sets out exemptions to that. It demonstrates the Scottish Government’s commitment to provision of information that it has, since 2009 as the cabinet secretary pointed out,
“been opening its archive files at 15 rather than 30 years”.
That ties in with another of the six principles, which is to publish information proactively wherever possible.
According to the policy memorandum,
“Some concerns have been raised in respect of the earlier release of ... social work records, adoption records and information bequeathed for research purposes.”
The Scottish Information Commissioner believes that the bill has the balance right, but there are other concerns. The cabinet secretary has written to the committee about this matter: there is a commitment that if the Government seeks to take forward the flexible powers—which I think the cabinet secretary has indicated it will do—they will be subject to consultation. I am sure that that will help to ease concerns.
I agree entirely that a time limit for proceedings should form part of any legislation. As it stands, the legislation is probably somewhat restrictive. It cannot be right that if a person seeks information after a six-month period in which that information might have been destroyed, the perpetrator of that crime would escape justice because no one had noticed that the information had been destroyed. It is absolutely right that we examine that.
Another issue that has attracted a fair amount of attention is the royal exemption. Although I have not heard the evidence, I heard the cabinet secretary say that she is not disposed towards absolute exemptions. I agree with that position and welcome the fact that it will be looked at again.
I will try to respond to the point that Willie Rennie made about ALEOs. I accept that there are concerns. The committee has heard those concerns and committee members have such concerns. Indeed in my area, the local authority is seeking to create a new ALEO on cultural issues. It is right that we look again at the provision; I hear that the Government will do that. I look forward to seeing where that takes us and to the bill progressing to stage 2.
15:48
It is 10 years since we passed the Freedom of Information (Scotland) Act 2002. That hardly made us trailblazers. After all, in the United States, Lyndon Johnson signed freedom of information into law as long ago as 1966. For us, though, it was the right act at the right time.
As many members have said, 10 years on, expectations have grown, the public service landscape has changed and it is right to review the legislation and to strengthen it. The legislation was always a work in progress. Indeed, in 2002, Michael Matheson quoted the Information Commissioner of Canada’s having said that in Canada it took 10 to 15 years to break down the culture of secrecy.
Mr Matheson said:
“I believe that such a culture is probably even more deep-rooted in Scotland”.—[Official Report, 24 April 2002; c 8216.]
We did not realise at the time that that was really a statement of profound self-criticism. The Scottish National Party Government, of which Michael Matheson is a member, has been as guilty as any Administration of resisting the spirit and the letter of the FOI legislation.
Sometimes it has done so spectacularly, for example in court, most recently over legal advice on EU membership, and most gratuitously, in the middle of an election, over local income tax. Sometimes it has done it routinely, such as it did last week, when it refused to tell us whether or when ministers had met the big six energy companies, because they could not find the information in their filing system. Sometimes the Government has done it pretty sneakily, as when e-mails with referendum expert Professor Qvortrup were released, but missing the two key ones, which then slipped out two months later. I say to John Mason that the Scottish Government has also done it pretty systematically, which is why the Scottish Information Commissioner reported that only 50 per cent of requests to the Scottish Government received a full response. That is less than any local authority, some of which respond to 90 per cent of requests.
I thank Iain Gray for giving way. He almost seems to be arguing against the 2002 act if he is saying that it is not operating properly as regards the bodies that it covers at the moment. Is that what he is saying?
No. I am saying that we need the legislation and the culture of openness and transparency, because one will not work without the other.
Of course, when it was in opposition the SNP argued exactly that—that FOI was too restricted. Roseanna Cunningham, for example, railed against class exemptions in 2002, saying that
“exemptions should depend entirely on the content of the information ... being sought, rather than its broad type”.—[Official Report, 17 January 2002; c 5460.]
Yet here we have the Scottish Government proposing to exempt, as a class, all communications with the royal household. The Finance Committee is right—that provision will weaken the legislation and it should be dropped.
I say to Bruce Crawford that when we brought in the act in 2002, we said that it was stronger than Labour’s act in Westminster and we were proud of that. We should still be proud of its being stronger than the UK legislation. I am glad that Mr Crawford has returned to the chamber because I want to agree with him too now, because in 2002 he was very concerned about private finance initiative contracts. He said:
“we cannot see the names of the bidders, the full tender documents or the outline business case in which alternatives were discussed. That is not good enough.”—[Official Report, 17 January 2002; c 5486.]
One of my constituents recently asked under FOI for an outline business case for the new sick kids hospital in Edinburgh—a non-profit distributing PFI project. I will show members what he received. The crucial financial information—page after page of tables—is simply blacked out. My constituent is an expert in such projects and he is clear that this is not only less information than used to be available in Scotland, but less than he can get out of George Osborne’s Treasury regarding contracts in England. The balance between transparency and commercial confidentiality that the Deputy First Minister referred to has shifted, but in the wrong direction. The bill presents the opportunity to change that and to extend FOI to those who provide public services and public contracts, whether they are ALEOs, third sector organisations or private companies.
The month before last, the First Minister said that he would be
“extremely sympathetic”
to such extensions
“once we get the ... Bill through”.—[Official Report, 20 September 2012; c 11704.]
That sounds a bit like, “Grant me openness and transparency, but not yet,” as St Augustine might have prayed.
You have one minute left.
I sincerely welcome the Deputy First Minister’s far more positive assurances today—she seems to have much more sympathy for making that extension quickly.
This is our chance to strengthen FOI in Scotland and to extend its reach. Ministers should drop the royal household exemption and at the very least section 5 should be amended to place an obligation on ministers to review the act. I welcome the commitment to do something like that, but would it not be better still to use this opportunity to do so now? That would be the strongest indication that we could give that 10 years on, the culture of secrecy in Scotland is beginning to be definitively uprooted forever, which we could all welcome.
15:54
I will try to do three things as part of my contribution to the stage 1 debate on the Freedom of Information (Amendment) (Scotland) Bill. I apologise to Michael McMahon and to Jamie Hepburn because I had to leave the chamber for a short time during their speeches. Forgive me.
First, I want to comment on the need to get the legislation in good order before we make any more substantial changes with regard to FOI.
Secondly, I was on the Finance Committee—albeit that it was for only a short time. I can tell the convener of that committee that it was an enjoyable time. I attended only one meeting in private in which the report was being discussed. Had I continued to serve on the committee, I am not sure that I would have wholly agreed with its recommendations and conclusions at paragraph 34 in the report, with regard to section 1. It is much more likely that I would have taken the position that Gavin Brown adopted. I will come back to that later and explain why.
Thirdly, I will discuss when it will be appropriate to consider extending coverage of the FOI regime.
I will start with the issue of getting the legislation in good order, particularly with regard to section 5 and the time limit for proceedings. It is correct that the bill will make the legislation stronger by making more effective the ability to bring prosecution in cases where requested information is deliberately altered, destroyed or concealed. I am glad that the bill proposes that a prosecution be commenced within six months of sufficient evidence to justify proceedings coming to the prosecutor’s knowledge, but with the backstop of no proceedings being able to be commenced more than three years after the commission of any such offence. The provisions will update and strengthen the current law and bring the statute book into good order.
Moving on to section 1 on “the royal exemption”, as other members have called it, I am not sure—as I said earlier—whether I would have wholly agreed with the committee’s conclusions. The matter is quite straightforward, in my view. It is self-evident, from the media coverage and the particular scrutiny to which the monarch, the heir and the second in line to the throne are subjected, that they cannot be treated just like any other public body and that special provisions are required. While the monarchy exists as part of the constitution of this country, it is essential that its political impartiality not be undermined.
Will Bruce Crawford take an intervention?
I hope that all members in the chamber would agree with that, including Michael.
I thank Bruce Crawford for giving me the time to say that I do not agree. Why would it be right for the royal family in the United Kingdom to be exempted by devolved Assemblies and the Government of the United Kingdom, while in other countries—such as Australia and Canada—where the monarch is also the head of state, she would still be subject to FOI legislation?
We can all look at comparisons outwith these shores and islands. For example, the President of the Republic of Ireland is included in the FOI regime there for exactly the reasons that I am arguing with regard to Scotland.
There must be a space for the monarchy to be able to provide views candidly to any Government, without the prospect that those views will be put into the public domain, in which case its political allegiances might well be exposed. I welcome what the Deputy First Minister said in that regard.
I want to return to our own shores. Does Mr Crawford think that the recent court ruling that overturns the exemption for the heir to the throne, and which is still being fought through the courts, rather indicates that exemption on a UK basis may not survive, in any case?
That process is hardly exhausted yet, and the issue is on-going.
On extension of coverage of the 2002 act, the Scottish Government rightly argues that that should be considered only after the legislation has been strengthened by dealing with matters, as the Government plans to do in section 5. As Kenneth Gibson noted, even the Scottish Information Commissioner has said in evidence that she understands the logic of clarifying the act before extending coverage. As members are fully aware, the power to extend coverage of FOI already exists under section 5. That is the correct place in legislative terms for any Government to make that particular extension. That is why section 5 was drafted in the way that it was when the Parliament passed the bill and it became law. However, I welcome the Deputy First Minister’s announcement today with regard to section 5, to the effect that she will lodge amendments at stage 2.
The main point is that we should at present be very careful indeed about considering extension. I support the principle of extending coverage to bodies such as arm’s-length organisations that have been created by local authorities—John Mason made a good point about that. There are also strong arguments for extending coverage to public-private partnership and PFI contracts and to some registered social landlords.
However, I question whether, at this time of significant economic uncertainty and pressures on public service budgets, we should add to the burdens on those who are already trying to balance their books in very difficult circumstances. In both the private and public sectors, people are having to take tough decisions day in, day out on where best to apply reducing resources in order to ensure that their businesses can remain trading or that they can continue to deliver their high-value public services.
We can see that there are difficulties in the world economy, including the continuing problems in the eurozone, the problems that the re-elected President Obama is facing with the fiscal cliff and the problems that have emerged this week in the world’s third biggest economy, Japan, which is slipping deeper into recession. Those are worrying developments for everyone. Everyone saw the Bank of England’s report this week on the state of the economy. We have heard enough in the chamber about the challenges that hard-pressed public service organisations are facing without, at this time, making their lives even more difficult by placing more burdens on them. I therefore ask Parliament to give the Scottish Government a bit of breathing space on the matter of extension of coverage. Now is not the time to add to the burden of either the public or private sector in that way.
I remind members to use full names.
16:00
I start by thanking and congratulating the Finance Committee. The stage 1 reports of committees have always been one of the strengths of the Scottish Parliament compared with other Parliaments, and the report that we are considering shows the committee system operating at its best. I congratulate everyone on that committee.
Various speakers, including Paul Martin and Iain Gray, mentioned the history of the freedom of information legislation. The Freedom of Information (Scotland) Act 2002 is one of several acts that those of us who were in government at the time can rightly be proud of. That does not include only Labour members; we should also pay tribute to the Liberal Democrats, who pushed for the legislation. It was Jim Wallace who took the bill through Parliament, and he famously said during the stage 3 debate:
“Provisions allow providers of services to the public to be added to the bill case by case, and I reassure the Parliament that that power will be exercised.”—[Official Report, 24 April 2002; c 8111-2.]
That has been much quoted in recent debates.
In a sense, the main issue that is before Parliament today is what is not contained in the bill. Hitherto, the Scottish Government’s view has been that any additions to the bodies that are covered by the freedom of information rules should be dealt with after the bill is passed. I welcome the change of position that the Deputy First Minister announced in her opening speech.
I think that we all know what the problem is. Many bodies have been created over the past few years, particularly by local authorities. For example, Audit Scotland has identified 130 ALEOs, although it has said that it is not sure how many there are overall and there are probably quite a lot that it does not know about. That points to the wisdom of Willie Rennie’s suggestion that when a new body is created there be consideration of whether it should be covered by freedom of information legislation.
Various people who have given evidence on the bill have pointed out the failure of section 5 of the 2002 act. That is why amending that section must be a key part of what the Parliament does at stages 2 and 3. As I said, until today, the Government was saying that it was not going to deal with the issue in the bill, but today the cabinet secretary mentioned two proposals that are based on regular review and widening the scope of the required consultation. Perhaps an oddity and a weakness of section 5 of the 2002 act is that, in the case of a new body, consultation is required only of that body, which clearly has a particular interest in the matter. The wider public are excluded.
I welcome the proposals as far as they go, but I wonder whether they go far enough. We are all familiar with the defence that is used in various situations when someone says, “I have reviewed the situation,” and the next statement is, “and I have decided that I will make no changes.” We need to go further than just reviewing the position. I would like to see a purpose section in the bill. That suggestion has come from the Campaign for Freedom of Information in Scotland, which stated:
“A purpose clause should be introduced to affirm that FoISA provisions are intended to apply to all public authorities and all other bodies providing public services, carrying out public functions and/or functions of a public nature.”
That wording might have to be looked at, but it is important that the principle be enshrined.
Here, of course, I disagree with Bruce Crawford, because I believe that there is an urgent need to get many of the bodies that are not presently covered covered as quickly as possible. The simple principle is that, if a body takes taxpayers’ money, it ought to follow the freedom of information rules. As I said, that is the most important issue that is before us. Hitherto, the Government has said that it was not to be considered as part of the bill, but now, fortunately, it will be considered at stage 2 and possibly stage 3.
The only other substantial controversial issue is the royal exemption. I support what my colleagues said about that and I disagree with what the Government has said, although I do not regard the issue as being as important as the previous one that I discussed.
I will not list all the members of the astonishing royal coalition that Gavin Brown referred to, but it has been a matter of slight amusement that the Scottish Government in particular is so anxious to have common arrangements across the UK. As I think Iain Gray reminded us, when we passed our legislation we were quite proud of the fact that it was stronger than the legislation that was passed by the UK Labour Government at the time. If I had been responding to Bruce Crawford’s intervention about the action of the UK Labour Government in February 2010, I would have said, “So what?” After all, in a devolved Parliament, we are not bound by the decisions that our party might make in London. I believe that the royal family already has adequate protection and that there is flexibility in the current arrangements for considering the public interest, and sticking with that position will pose absolutely no threat to the royal family.
I can cover the rest of the bill in the 30 seconds I have left, as it contains nothing controversial. The amendment to section 18 of the existing legislation on refusal notices and the amendment to section 25 on accessible information are both without controversy. I support the flexibility that will be given to section 59 of the 2002 act with regard to use of historical information—I am pleased by the cabinet secretary’s announcement that she will consult on the matter quickly—and I support the amendment to section 65 on the ability to bring prosecutions if material is destroyed. To be able to bring such a prosecution within six months of the discovery of evidence is a sensible proposal, but I am not so sure that we need the backstop of three years since commission of an offence.
16:06
Information is power—or, as Sir Francis Bacon said, “Knowledge is power”. I am reminded of that and the Scottish Information Commissioner’s important role every time I visit the north-east corner of my constituency. The commissioner is, of course, based in the impressive Kinburn castle in St Andrews and employs 21 members of staff, and all of them are very welcome in the community.
First of all, on the royal exemption, the bill’s policy memorandum makes it clear that the rationale for introducing an absolute exemption amendment to section 41 of the 2002 act is that in respect of communications with the royal family there should be
“a common approach throughout the UK to the treatment of information relating to Her Majesty.”
At first glance, the proposition seems sensible, particularly bearing it in mind that the absolute exemption applies south of the border as a result—as Gavin Brown’s tortured explanation tried to make clear—of the coalition of Labour legislation being brought into force by a Conservative minister.
Nevertheless, responses to the consultation have expressed serious reservations about the necessity for such an exemption. The Scottish Information Commissioner of the time, Kevin Dunion, said earlier this year that he regards the proposal as unnecessary, given the existing provisions in the 2002 act, and sees the amendments as
“somewhat regressive, creating a wide-ranging absolute exemption, which will, in certain circumstances, only be set aside after a period longer than the exemption's current 30-year lifespan, regardless of either the nature of the information, or the strength of the public interest arguments in favour of its release.”
Unison also suggested that the amendments might be contrary to the overall general direction of FOI legislation and, of course, to the objectives of the bill, the principles of which seek to ameliorate the existing legislation. It is worth considering the wide variety of respondents who do not consider the amendments to be necessary.
That said, as was indicated in evidence to the Finance Committee, in practice the existing legislation has had very limited impact in relation to the public interest test. Nevertheless, there is an important principle to be observed, and I am pleased to note the cabinet secretary’s indication that the Scottish Government will carefully consider the Finance Committee’s stage 1 report and provide a view in time for stage 2.
With regard to the time limits for proceedings in section 65 of the 2002 act, I agree with the proposal to allow a prosecution to begin six months from the moment that sufficient evidence of an offence is available, with a long stop on commencement of proceedings of three years from the date of the offence. However, it is worth noting that the Finance Committee’s stage 1 report states that, in her submission, the Scottish Information Commissioner did not believe that the three-year long stop would be effective because the possibility of commencing proceedings after such a long gap was very remote, especially as evidence of wrongdoing more often than not became evident within 12 months of the commission of the offence.
The Campaign for Freedom of Information took the opposite view on the three-year limit, citing the evidence about Hillsborough that came to light after several decades as a good reason not to impose any backstop. However, I feel that it is in danger of confusing the wider issues with more important issues around criminal and civil liability generally.
On the extension of coverage to ALEOs, the increasing outsourcing of public service provision in Scotland over the past decade, which many members have referred to, has raised some pertinent questions about accountability. In its submission to the consultation on the bill, the monitoring body for services, Consumer Focus Scotland, said that continued delay to extending the 2002 act
“places significant numbers of consumers at a disadvantage.”
I agree.
On the question of exercising the powers that Scottish ministers have under section 5 of the 2002 act to add to the scheme bodies and private companies that undertake services for public authorities, I agree with the SCVO for the very good reason that the third sector organisations that provide formal services such as care or maintenance of community spaces should not be included in the extension. However, I agree that an extension of coverage is necessary to reflect the growing use of ALEOs in public service provision. I therefore support calls from local authorities, trade unions and ombudsmen for that extension to be introduced.
Although I am aware of the cabinet secretary’s evidence to the Finance Committee that there would not appear to be any advantage in using primary legislation to extend coverage, rather than doing so by order, I hope that, in any event and come what may, early progress is made. I welcome the cabinet secretary’s commitment to regular reviews in that respect.
The bill seeks to amend provisions in the 2002 act for authorities to issue “neither confirm nor deny” refusal notices in relation to requests for personal information. That was, of course, recommended by Kevin Dunion, and I believe that it is a commonsense suggestion.
I welcome the thrust of the bill and look forward to its progress through Parliament.
16:11
I want to make an admission: I am not a royal watcher, and I want to join Gavin Brown’s royal coalition. I do not think that the royal exemption is one of the major issues in the bill. I am much more concerned about the other issues, such as the extension, and I think that we should focus on the main thrust of what we are trying to achieve with freedom of information.
We have a serious problem in the public sector, as a culture of secrecy and a kind of game playing are developing in many organisations, from the police to the NHS to central Government. We need to address that because, if we do not, it will undermine the whole FOI regime.
In recent months, we saw how Rab Wilson did great work in using information gained through FOI to expose a major flaw in Ayrshire and Arran about learning lessons from deaths. There could not be a better example of the use of the FOI regime. It is not just for journalists and politicians who want to get one over on someone; it makes a real difference to people’s lives. That is why it is important that we address the erosion that the Deputy First Minister spoke about.
Does the member think that legislation will be sufficient to change the culture, or do we need to do something else?
Both things are necessary. We need to send a clear signal that we are not suspicious of or cautious about freedom of information and that we welcome and embrace it. The bill gives us an opportunity to do that. However, we have to ensure that management understands the position. I have heard lots of different examples of people trying to play games and withhold information. We need to encourage people to be much more open so that we can learn lessons from our mistakes.
We need to address that issue because, as the Deputy First Minister has said, there has been an erosion. Lots of public money is now no longer under public scrutiny. The public can access information about Barlinnie, but not about Kilmarnock prison. Tenants in South Lanarkshire can get information about their landlord, but Glasgow tenants cannot, because their landlord is a housing association. In East Lothian, responsibility for leisure facilities was transferred to an arm’s-length organisation, which meant, again, that the information was not available. Those are examples of the issues that we need to address.
I was pleased with the tone of the Deputy First Minister’s comments. I welcome what she said about there being an annual review. I hope that that is followed through quickly so that there can be a regular review and we can deal with the many organisations that have now fallen outwith public scrutiny.
However, I disagreed whole-heartedly with Bruce Crawford’s remarks about the economy. It was an argument almost against freedom of information. I know that he endorses FOI, but to argue that there are certain circumstances—including those that involve the economy—in which it should be suspended is not worthy. We need to embrace it. It is an issue that helps us to learn how to govern properly and no excuses, including the economy, should be used. FOI should be seen not as a burden, but as an opportunity.
There is an opportunity in the bill to make the necessary changes. I have suggested that there should be an opportunity for public authorities to make a designation at the time of the creation of new bodies, when they could consider whether they should be included in the FOI regime. That would mean that we would not have to play catch-up on an annual basis or even more frequently. We need to create the opportunity for that to be done at the time, which will require both an amendment to the bill and the annual review that the Deputy First Minister talked about.
The Deputy First Minister also mentioned the need to consider other avenues for public access to information. Kevin Dunion has commented on that. He said:
“My second concern is the view being expressed that other initiatives can improve access to information held by those bodies, so that designation is not necessary. However welcome efforts at greater transparency may be, none can provide the benefits of FOISA, namely a statutory right to information and in particular the right for a dissatisfied requester to appeal to the Commissioner.”
That process is well known, well tried and well tested. People know that they can use freedom of information legislation to get access to information. Other members, including Michael McMahon, have commented that the other mechanisms are not as tried and tested and that people are not as familiar with them.
I think that we should stick with what works. We should extend the coverage so that we make steps back to the ground that we have lost in recent months. Iain Gray is right when he says that there has been a loss of confidence in the Government on freedom of information because of numerous episodes, many of which he referred to. The one thing that the Government could do to dispel that perception is change the bill in the way that I have described and extend the coverage so that we can get the principle of following the money. If public money is involved, people have a right to know.
16:17
I, too, thank the Finance Committee for all the work that it has done. In particular, I thank the convener, Mr Gibson—and not just because he is sitting beside me. Although I am not on the committee, I have followed its proceedings with interest. The cabinet secretary said in her opening remarks that there is the potential to take on board some of the committee’s concerns, and I welcome that.
As the debate has shown, there is no quick fix to what is quite a complex situation. Various examples have been cited. For example, Prime Minister Blair was a keen advocate of freedom of information when he was the leader of the Opposition, but in his memoirs he described the 2000 act as an act of stupidity “undermining ... serious government”. I am not saying that Tony Blair is a perfect human being and a perfect example of someone using FOI—we are aware of his faults—but I understand that FOI is an extremely complex issue to discuss and enforce.
The bill amends the provisions of the Freedom of Information (Scotland) Act 2002 relating to various exemptions. The debate has concentrated on the royal exemption, which is probably one of the most contentious issues. As Kenny Gibson mentioned, Kevin Dunion, the previous Scottish Information Commissioner, said:
“Absolute exemptions are not regarded as good practice, and I consider this measure to be unnecessary”.
Although my gut instinct is to go with the idea, I understand that, as the head of state, the Queen is probably—as Bruce Crawford said—in a similar situation to the President of the Republic of Ireland, who is not subject to the FOI regime over there. It is not quite as black and white as it is for everyone else.
The exemption applies not just to the monarch but to the heir to the throne and the second in line to the throne, so I do not think that there is an Irish equivalent.
That is a whole different debate. Having said that, I agree that the situation is complex and that there are things that we need to look at. I welcome the flexibility that the cabinet secretary offered in her opening remarks. The Government has taken very seriously the committee’s report, as today’s debate shows.
I agree with the cabinet secretary that the reduction in the lifespan for historical records needs to be a lot better, but I can understand how difficulties can arise.
From my working life—my time as a local authority councillor—I would say that an extension to coverage is required to include some of the public organisations that have been mentioned, such as various ALEOs. My council did not have an ALEO, but I am only too aware that, where an agency has opted out of council control, in effect it may be required to give information under FOI one day but not the next. Obviously, that causes problems with regard to transparency. I also have concerns about housing associations, which I think should be covered by the legislation. We need clarity in all forms of public life.
A particular worry for me relates to PPP/PFI contracts, which were mentioned by Mr Gray and others. There are situations in which we should have an opportunity to see exactly what has happened, but we have to balance that against the need to ensure commercial confidentiality. As someone who was a councillor member of various boards, I am only too aware how situations could arise in which the information that could be given on a procurement contract related only to the alleged points system; that was quite confusing, so people could not understand how it happened that someone was given the contract. That can cause difficulties.
Does Mr Adam support my view that the outline business case for the sick kids hospital in Edinburgh should be released so that we can see the affordability and the basis of that project?
As I said earlier, there needs to be a balance in everything. I do not know all the information on that project, and I would need to know more about what has happened there before I committed myself on the record.
On the issue of other organisations that could perhaps be brought under the bill, my council was a constituent member of Strathclyde Partnership for Transport, but as a councillor I could not get information on how much we got for our £3 million—money that was top-sliced and taken away every single year—even when the issue was brought before Renfrewshire Council’s scrutiny board.
I welcome today’s debate and the generally positive way in which it has been conducted. This is a serious and complex issue and, as such, there are no easy fixes. We need only remember that Tony Blair believed in FOI in opposition but then believed that it was an act of complete stupidity that undermined serious government. Such serious and complex issues need to be debated in an open and transparent manner. I look forward to stage 2 and to seeing how the bill develops.
I am afraid that, from now on, I can give members only four minutes.
16:23
It has been 10 years since the Parliament passed our freedom of information laws, and the world in which Government and local authorities could withhold information at will is long gone. It is important that we acknowledge our significant progress on openness, but FOI also has its limitations. As others have said, in some places there is still an unnecessary culture of secrecy, even when there is nothing to hide.
The bill will make some welcome changes to the law, such as the ability to vary the lifespan of historical records and the changes to timescales for prosecution, which also make sense given that the crimes might go unknown for a significant time. Less welcome is the inclusion of an absolute exemption for royalty. I agree with the Finance Committee that that proposal should be removed at stage 2 and I support its invitation to the Government to do that. The current set-up, in which the information can be released if it is in the public’s interest, seems to me to be the correct way to have the law structured in a modern democracy.
The Information Commissioner has argued strongly against the practice of absolute exemption under FOI, and others have made the point that even if the legislation goes through as introduced, it will not cover environmental information—if the letter to the Queen is about the environment, it will not be exempt; if it is about anything else it will be—and that is inconsistent. As Gavin Brown acknowledged, that does not assist public understanding.
The fact that section 5 powers to safeguard people’s right to know by designating new public bodies have not been used as we might have expected them to be has also dominated discussions. Some new bodies have been covered, such as the Scottish Human Rights Commission, which has FOI in its primary legislation, but in many cases the creation of new bodies, such as arm’s-length organisations, and the privatisation of public services have led to an erosion of people’s right to know.
The Information Commissioner stated:
“Since FOISA came into force in 2005, 15,000 households have lost FOI rights as a result of the transfer of local authority housing stock.”—[Official Report, Finance Committee, 12 September 2012; c 1510.]
That sort of change is quite natural over 10 years, but section 5 designations are designed to address that. As discussed, the Campaign for Freedom of Information in Scotland is calling for an amendment at stage 2 to require ministers to have regard to public views when consulting on new section 5 designations, and not just the views of those organisations affected. It is also seeking an amendment to create a recurring requirement for Parliament to consider any new bodies that are created, every year or two years, to ensure that we do not see another decade of little action.
I welcome the cabinet secretary’s commitment to introduce regular review at stage 2, and to address the issue of public consultation. Willie Rennie’s comments about automatic application are certainly worthy of consideration.
It feels as though now is the time to extend FOI’s coverage. The public desire is there: more than 80 per cent of people surveyed want FOI to be extended to cover new public services, and a vast 91 per cent value the right to know.
I welcome the SCVO’s clear statement this week that it supports the extension of FOI to include all public services, whether they are delivered by public, private or third sector organisations, and its views that the public have a right to know all aspects of how public services are funded and run. Like Willie Rennie—and contrary to Bruce Crawford’s view—I do not believe that economic circumstances should curtail access to, and the safeguarding of, the right to know. We should have the right to information from a company that is building a local school or about a regional hospital that is being built under PPP; we should be able to scrutinise the Convention of Scottish Local Authorities; and we should be able to FOI the companies that are running Scotland’s privately managed prisons, Serco and Sodexo. Of late, we have even privatised the maintenance of our nuclear weapons at Faslane and Coulport—such contracts should remain transparent.
16:27
I planned to support the motion with one caveat, but the cabinet secretary’s opening speech has removed it. Freedom of information legislation—or amendments to it—works only if it faithfully confers on the public the right to ask for and receive, timeously, data held by public bodies.
Evolution in the political practice and landscape, in our media and, indeed, in technology, demand that our information laws and amendments thereto secure the right of access by our citizens to relevant public information. Important selective exemptions—but not too many—from disclosure should, of course, protect only essential Government functions, including international diplomacy, defence, personal information or specific confidential advice. I support Bruce Crawford’s earlier comments about commercial information, which would require a much longer and detailed debate.
In subscribing to the principles of the bill, it is important that we note that only a small percentage of Scots filed FOI requests last year. Notwithstanding that, it is pertinent that we review and amend an act that is now in its 10th year. It is appropriate to consider changes to the terms of the longevity of a particular historical record, as it is to pursue those who do not provide data by destroying or concealing it; that practice is unacceptable.
I had been motivated to support the general argument and thrust of the Finance Committee’s observations about creating too many exemptions, even—and particularly—in the case of the Queen and heirs to the throne, but that might defeat the general principles inherent in the original act.
I refer again to the scope and range of FOI requests, which I mentioned earlier. In particular, that applies to royal communications, which have been barely requested, notwithstanding the current request regarding the heir to the throne. Therefore, I welcome the cabinet secretary’s commitment to consider the matter appropriately and the fact that the Government will try to seek convergence with the Westminster Government on it for reasons that other members have covered.
Having recently made an FOI request for data that is some 30 years old and not yet having succeeded in getting it, my initial reaction to the amendment to the power to vary periods for historical records under section 57 of the 2002 act was to oppose the change. However, I endorse the Government’s intention to amend the lifespan of time-limited exemptions but secure flexibility in certain cases—including, I hope, mine.
I also support the Government’s position on the time limit for proceedings that are brought in cases in which the destruction of data thwarts the seeking of information or the disclosure of data. We need a change in our culture and in our approach to information.
Given all the above, the amendments to the legislation that are proposed in the bill take us even closer to the objective that we all seek: a much more open society.
16:31
As a member of the Finance Committee, I am pleased to have the opportunity to comment on the bill at stage 1. I echo the comments of my fellow Finance Committee members in agreeing with the general principles of the bill but with caveats.
The two provisions that have gained the most attention and that the Finance Committee’s report is most vocal in questioning are the absolute exemption that is proposed for communication with some members of the royal family and the extension of coverage to organisations that receive public money.
Currently, a public interest case must be made for the disclosure of communication between certain members of the royal household and the Government, and I cannot see how removing a public interest test is itself in the public interest. In addition, the committee heard during its evidence taking that the absolute exemption would, in fact, create a new anomaly, due to the fact that the EU directive on environmental information contains no specific exemptions for communications with the royal family.
As the equivalent measure that was introduced at Westminster was rushed through that Parliament in 2010 with little scrutiny, perhaps the rest of the UK should bring its legislation into line with Scotland’s, rather than Scotland regressing to come into line with the rest of the UK.
An equally pressing concern relates to how the public are able to scrutinise private companies that are awarded public contracts. It is vital that the public be able to find out how and where their money is being spent. Otherwise, we risk FOI avoidance sitting alongside tax avoidance in being a legal, yet ethically wrong, practice.
I acknowledge that the Government has said that it intends to examine extending coverage at some point, but I consider it a matter of urgency that arm’s-length external organisations—of which there are roughly 130—be designated under the existing FOI legislation. I agree with Willie Rennie’s suggestion that we are worse off than we were 10 years ago as a result of the creation of the ALEOs removing an enormous amount of public expenditure into organisations that are exempt.
The public have a right to be able to follow the public pound, and I suggest that, at some point, somewhere, there should be a recommendation that any organisation that picks up public money should offer up the information at its own hand. Because we have to challenge and go through the freedom of information legislation to get information, there is an assumption that something dodgy is going on and that the companies have something to hide. However, if the information was put on websites or made available to the public more easily and, I hesitate to say, at less cost to everybody concerned, there would be less need for the legislation.
I back the general principles of the bill but, once again, state my preference for changes to be made when it returns to the Parliament for its second stage.
We move to the closing speeches.
16:35
We have had a pretty good debate, which has focused mainly on the royal exemption and the extension of coverage. There has been a lighter-touch examination of sections 2 to 5, but that was to be expected, and it reflects the Finance Committee’s report to the Parliament.
As far as the royal exemption is concerned, although the bill will be agreed to at stage 1 unanimously, or almost unanimously, it would be interesting to know which way a vote on section 1 alone would go. I have tried to do a quick calculation based on the views of the members who are present, but I simply do not know which way such a vote would go, were it to be held today.
It is worth reiterating that there were mixed views on section 1 in the written evidence that the committee received. The position was not as one sided as it might appear. Although absolute exemptions are not the norm, as the cabinet secretary said, if they are to be provided, they ought to be limited and narrowly defined. One could argue that section 1 is pretty limited and exceptionally narrowly defined.
I acknowledge, in particular, Bruce Crawford’s contribution. I fear that he left the Finance Committee far too soon; he certainly left it a week too soon for my liking.
Could the member explain what he means by that?
We had cotton replaced by silk.
A point that was made on the royal exemption is that it was rushed through at Westminster in 2010 because of the impending general election. There is a degree of truth in that—from the point of view of timelines, the progress of the relevant legislation was faster than one would normally expect.
However, it is worth reflecting on the fact that the amendments that brought in the royal exemption were lodged by Jack Straw, who was the minister who brought through the original freedom of information legislation not long after Tony Blair became Prime Minister. During consideration of the Constitutional Reform and Governance Bill, Mr Straw said:
“There were lacunae—I confess that I am the Minister responsible—not in the intention of the Freedom of Information Act, but in its drafting that have raised some uncertainties about the protection of the monarchy in relation to national records.”—[Official Report, House of Commons, 2 March 2010; Vol 506, c 830.]
The fact that there were gaps in the original legislation probably led to some of the court cases that Iain Gray talked about. The purpose of the bill—as with the Constitutional Reform and Governance Act 2010—is to ensure that there are no gaps and that the law is absolutely clear.
The other big issue that has been discussed is the extension of the coverage of freedom of information. It has rightly been pointed out that the power to extend coverage already exists under section 5 of the 2002 act—the current Government has it at its disposal, just as the previous Executive did. The fact that it has not been used does not mean that it is not fit for purpose or that it does not exist, as some have argued; it is simply the case that it has not been used since it became available.
I would be slightly uncomfortable about having a list of bodies to which coverage should be extended on the face of the bill; I am not sure that that would be a good way to proceed. As far as I am aware, that is not something that has happened with freedom of information legislation in this country or anywhere else. I think that the right approach is to get the bill through Parliament and then, quite quickly, to look carefully at who ought to be covered and who ought not to be covered.
I am not sure that anybody suggests that the bill should contain a list of organisations. I talked about a purpose and about public authorities being able, when creating a new body, to determine that it should be included in the regime. I did not suggest including a list in the bill.
My remarks were not specifically addressed to Mr Rennie. However, from the written and oral evidence to the committee, I thought that some people felt that a list of bodies should be in the bill. In any event, I do not think that the bill should contain a list.
I strongly welcome the Deputy First Minister’s comments. She did not say just that amendments might be lodged; she positively indicated that amendments would be lodged on who should be consulted about the bodies that should be covered and on having a regular review, so that the power, which has existed for some time, is used continuously. The more specific we can be about the timeline, the better it will be for the passage of the bill at stages 2 and 3.
I am happy to leave it at that. I repeat that we will support the bill at stage 1.
16:41
I welcome the opportunity to close the debate on behalf of the Scottish Labour Party, which will at 5 o’clock support the bill’s general principles at stage 1.
I thank the Finance Committee for its detailed work in considering the bill. There is no doubt that there has been criticism recently of how some committees have gone about their work, but none of that criticism could be levelled at the Finance Committee for its work on the bill. It is clear not only from the report but from the thoughtful speeches that many committee members have made that they took their job seriously and interrogated the bill robustly.
As Michael McMahon said, there is no doubt that the bill makes some pretty minor technical changes. With the exception of the royal exemption, the basic points of the bill are the subject of broad agreement. Nobody will disagree with proposals to tidy provisions on historical records and the lifespan of exemptions. As Jamie Hepburn pointed out, it is logical for the six-month period in relation to offences to start when evidence is amassed rather than when an offence was committed. Such changes are logical and I do not think that people will disagree with them.
Willie Rennie and Iain Gray pointed out an issue with the current legislation. There is no doubt that some organisations and public bodies are getting expert at dealing with FOI requests and can release the minimum amount into the public domain. A great concern is the example that Iain Gray gave of a contract document in which the financial information was redacted. That does not represent the intention of the original legislation.
A number of members, including Paul Martin, have argued that the bill is at this stage a missed opportunity. We should look at extending the legislation to other organisations and to ALEOs. As Jean Urquhart said, there are now 130 ALEOs. As John Mason demonstrated, the nature of the public sector has changed quite a bit in recent years, and the FOI legislation must change to keep up with that.
Such points are important, and I note that the Deputy First Minister gave a commitment to look at them at stage 2 and said that she would want to see whether amendments would make the bill more fit for purpose.
The issue that has caused most discussion in the debate has been the royal exemption. I suppose that we must wonder why the Government adopted a royal exemption at stage 1. I think that it has viewed the matter through the prism of the independence referendum. From what the SNP has done over the past year, it is quite clear that it has tried to adopt a more cautious approach in order not to scare the voters. It has told them that Scotland would keep the pound and would still be wedded to the Bank of England. Alex Neil even said that we would still be British even if we voted to be independent.
The SNP has adopted this proposal. Who would ever have thought it? The Deputy First Minister is cuddling up to the British establishment. The SNP thought that adopting a more cautious approach might appeal more to the voters, but it is clear from the speeches by some of its back benchers that that is not a uniform view in the SNP. As Jean Urquhart pointed out, the public interest test will remain in the legislation, and I think that that will give adequate protection to the royal family.
When Gordon Brown instituted his absolute exemption for the royal family, did he do so for electoral gain?
It is good to see that Mr Hepburn has joined the Finance Committee. It is clear that he has been put on that committee to join forces with some of the other members of the awkward squad on it and to give some difficulty to the SNP.
As Iain Gray pointed out, one of the fundamental problems that undermine the SNP’s credibility over the bill is the clandestine approach that it has recently adopted. Some £100,000 has been wasted in challenging the release under FOI of information relating to plans for getting rid of the council tax and replacing it with a local income tax. That was a waste of public money. In recent weeks, there has been the controversy over the challenge to the release of EU legal advice. That advice was non-existent, but the Government went to court and wasted £12,000 of taxpayers’ money on that challenge. There was no need for that. That undermines the Government’s credibility. We saw the same again today with the First Minister—I see that he has come to the chamber—not being accurate with his figures.
Questions remain for the Government about its approach to transparency and openness that need to be addressed if it is going to retain the trust of the public.
16:48
I was going to say that the debate has been good, but it was good until about the previous two minutes. Paul Martin made a good speech, and there were excellent speeches by Kenny Gibson, Gavin Brown, Jamie Hepburn, Bruce Crawford, Malcolm Chisholm, Rod Campbell, Chic Brodie, George Adam and other members.
Michael McMahon made some good points, but he probably got his tone a bit wrong. If he had listened to my opening remarks, he might have found that I was more in agreement with him than he might have suggested in his speech, and he might have decided that the angry tone was not the correct one. There was something quite ironic in listening to him lambasting the Government because ALEOs are not under the ambit of freedom of information. I recall that it was Labour-controlled Glasgow City Council that was the pioneer in setting up those arm’s-length organisations in the first place.
Likewise, Iain Gray made some good points, but at times he was at serious risk of losing those points among the usual overblown spleen venting about the SNP that has become the hallmark of those on the Labour benches.
Will the cabinet secretary give way?
For some more spleen venting, yes.
As I said to John Mason, it is a simple fact that only 50 per cent of FOI requests to the Scottish Government are responded to in full, whereas some local authorities achieve 92 per cent. Surely that simple fact must say something about the culture in the Scottish Government.
It is also a fact that a significant proportion of all freedom of information requests that come to the Scottish Government come from Labour members or those who are associated with them.
I turn to a serious point. Willie Rennie said that the public sector in general in Scotland is developing a culture of secrecy. I do not agree. One can believe, as I do, that freedom of information has been eroded to an extent because of the change of structure through organisations such as ALEOs without coming to the conclusion that that is somehow part of a culture of secrecy. However, if Willie Rennie is right, it is incumbent on us all as politicians in the Parliament to consider our role in that and in the solution. Increasingly, on all sides, freedom of information is being used not as a legitimate attempt to get information but as a weapon in the broader political war. We must all reflect on that if we want to change the culture to which Willie Rennie referred.
I will address the two key themes of the debate. One has been the royal exemption. Access to information laws, whether ours or those elsewhere, commonly contain protection for a head of state, whether by exclusion or exemption, although I accept that not all countries do that. I have listened carefully to the comments and, as I said earlier, I will carefully consider the Finance Committee’s report. First and foremost, freedom of information is devolved legislative policy that lies solely in the hands of the Parliament, so our FOI law should reflect our needs and requirements. Kenny Gibson listed many of those who think that the proposed amendment to the legislation is too broad in scope. I am sympathetic to them, and I will give serious consideration to the committee’s report and to the comments that have been made in the debate, with a view to lodging amendments at stage 2.
Interestingly, a couple of members referred to the fact that section 1, if it was agreed to, would create an anomaly with environmental regulations. I accept that, but, as things stand, there are many anomalies between freedom of information law and environmental regulations. It is perhaps ironic, given that we are talking about a proposed absolute exemption, that one way of dealing with the anomalies would be to have an absolute exemption under freedom of information legislation for requests for environmental information, thereby ensuring that such requests were always dealt with under environmental regulations. Who knows? Perhaps there is a back bencher will want to lodge an amendment to that effect at stage 2 to deal with the anomalies between the two regimes.
The extension of coverage has been central to the debate. It is incorrect to state that coverage remains as it was when the 2002 act came into force, and I am sympathetic to those who are concerned about the lack of use of the order-making powers in section 5 of the act. I do not believe that the power is unfit for purpose, but I am persuaded that there is not enough obligation on ministers to regularly assess its use or to ensure that sufficient breadth of opinion is taken into consideration when consulting on that. As I said earlier, we will introduce amendments to section 5 of the act before stage 2. We will build in a regular review, as the Scottish Information Commissioner has proposed.
As I have repeated on several occasions, we will return to the issue of extension once the bill has completed its parliamentary stages. I look forward to engaging further with the Finance Committee in setting out a timeline for that work. John Mason was absolutely correct when he said that there are two categories. First, there are functions that were previously subject to FOI but, because of outsourcing, are no longer within its ambit. Secondly, there are organisations that would come within the scope for the first time. I believe that, for some organisations—culture and sport ALEOs being the obvious example—the argument in favour of inclusion is clear cut, but other cases are more open to debate. We should have a debate and a staged approach that ensures that we do not hold up action where it is necessary and required while we consider our approach in other areas.
The cabinet secretary implied that she is not in favour of considering an approach whereby there is a pre-ruling on FOI by public authorities in relation to new organisations that are being considered or created. Is she ruling that approach out or will she consider it in future?
I thought that I made it clear when I responded to Willie Rennie’s intervention during my opening speech that I am happy to consider the approach, either in the context of the bill or, if that cannot or should not be done, in further work that we take forward. I am more than happy to give open consideration to the matter.
This has been a good debate. There has been a considerable degree of interest and important issues have been raised. I look forward to continuing to engage with members of all parties and with the committee as we go through the further stages of the bill.