Freedom of Information (Amendment) (Scotland) Bill
The next item of business is a debate on motion S4M-05362, in the name of Nicola Sturgeon, on the Freedom of Information (Amendment) (Scotland) Bill. I ask members who are leaving the chamber to do so quickly and quietly, please, and I invite members who wish to speak in the debate to press their request-to-speak buttons now.
I call Nicola Sturgeon to speak to and move the motion. You have a tight 10 minutes, cabinet secretary.
I am pleased to open the debate on the Freedom of Information (Amendment) (Scotland) Bill. I thank the Finance Committee for its detailed scrutiny of the bill during its parliamentary stages and the Subordinate Legislation Committee for its reports on the bill. I also thank the organisations and individuals who responded to the consultation on the draft legislation and provided oral and written evidence to the Parliament. I also thank my officials and the bill team for all their hard work on bringing the bill to this stage.
Shortly after the 2007 election, the Government published its six principles of freedom of information, in which we set out our approach to FOI and to working with the Freedom of Information (Scotland) Act 2002. One of those principles committed the Government to adjusting the regime where it was
“necessary and sensible to do so.”
The bill fulfils that objective by proposing modifications to the 2002 act that are intended to add strength and clarity and improve its operation.
As I said in the stage 1 debate, it is a tribute to those involved in the development of the original legislation—as well as to FOI practitioners in Scotland’s public authorities, who implement the legislation daily—that the 2002 act is not in need of more radical overhaul.
The original objective of this amendment bill was to rectify two weaknesses in the legislation—that has always expressly been the case. One weakness became apparent following consultation, and the other was brought to our attention by the former Scottish Information Commissioner. The first relates to the inflexibility of the order-making power by which exemption lifespans are revised. The second concerns the inability to bring a prosecution in the event of information not being disclosed due to alteration, destruction or concealment, for example. The bill will remove both those weaknesses, thus making the 2002 act stronger.
As a result of the bill, we will have a far more flexible order-making power that will allow for the lifespan of the 30-year exemptions to be considered and revised on an individual basis. Instead of all 30-year exemptions having to remain at 30 years in order to ensure continued protection for more sensitive information, it will now be possible to assess the merits of having reduced lifespans for individual exemptions while maintaining longer lifespans when those are required.
The Scottish Government will now consult key stakeholders and interested parties on a draft order under section 59 of the 2002 act. That consultation will include assessment of both the resources that might be required to implement revised lifespans and how quickly new arrangements can sensibly be introduced.
It will of course be a matter for individual public authorities to determine whether they adopt a proactive or reactive approach to earlier release. However, although I am conscious of potential—though limited—resource implications, I would absolutely encourage a proactive approach.
Since 2009, the Scottish Government has routinely released archived files at 15 years rather than 30 years. Indeed, just two weeks ago almost 400 Scottish Government files were opened under the terms of our 15-year rule policy, which made more information available to the Scottish people.
In that context it is more than regrettable that, as has been reported in the past week or two, the United Kingdom lags behind Scotland in making more information available earlier and is only just moving towards implementing a 20-year release policy. Of course, some of the files that may be of interest around the devolution referendum have not yet been released by the UK Government.
Does the cabinet secretary agree that it was quite wrong of Willie Rennie to suggest that this legislature is lagging behind others?
Yes, I do. Although I have great respect for Willie Rennie’s views on this matter, he was wrong on a number of things that he said earlier. However, in the spirit of consensus I am more than happy to continue to discuss matters to see how we can find common ground and move forward.
Does the cabinet secretary not accept that reviewing the devolution files is a matter for the officials in the Scotland Office? That is not a political judgment, because those files involved a previous Administration and it would be quite wrong for a subsequent Administration—one of a different political colour—to review them and decide whether they should be released.
I accept that to a point, but this Government has reviewed and released files that were under our control. I am not sure why the same process cannot be followed and the files released. Indeed, I am not sure why that could not have been done earlier. There is nothing to stop the release of those files, and I encourage that to be done so that people can have sight of files that are of great and legitimate interest to people in Scotland. I hope that Willie Rennie will back that and that we can reach consensus on the issue.
Since 2009, more than 12,000 files have been released under our early release initiative. That means—this echoes Jamie Hepburn’s point—that Scotland is significantly ahead of the rest of the UK in making public information available earlier.
Also as a result of the bill, the ability to prosecute those who commit an offence under the legislation is made fully effective. That sends a powerful signal to anyone who might seek deliberately to subvert the requirements of the 2002 act. I note with interest that recent post-legislative scrutiny at Westminster of the UK Freedom of Information Act 2000 has also recommended that similar changes be made to that act. I understand that the UK Government is now minded to extend the time that is available to the UK Information Commissioner to bring a prosecution to six months from the point at which the commissioner becomes aware of an offence, rather than six months from the point of the commission of the offence. That is another example of Scotland being ahead of the UK in ensuring that our legislation remains fully fit for purpose.
The cabinet secretary spoke earlier about the need for openness, and she now says that we can be ahead of the game. Would she support legislation to increase openness and transparency in lobbying, so that Scotland can be ahead of the game in that regard as well?
I have read in the newspapers about what the member is proposing. When he produces concrete proposals we, as a Government and as individual members, will look carefully at those proposals and decide whether they should be supported. I agree with him in principle that we should encourage openness generally as well as openness and transparency in how we conduct our business in the Parliament, and I look forward to his producing those proposals in due course.
I have covered the two main aspects of the bill, but during its consideration other provisions aimed at strengthening the legislation have been included. I refer to the extension of coverage, which has been a central theme of our discussions. We are all aware—I have never tried to get away from this—that although there has been consultation on three separate occasions, the power to extend has not yet been used by this or any other Administration. I do not believe that that is a failing of the provision, but I accept that the intention behind it has not been fulfilled. That is why I have been pleased to accommodate amendments to the bill based on proposals from the Information Commissioner. Those amendments strengthen the legislation by widening the scope of consultation and requiring periodic reporting by ministers to the Parliament and the use of the power to extend coverage. They significantly increase ministerial accountability and mean that a renewed focus will be placed on ensuring that the coverage of the 2002 act reflects the ever-changing mechanisms of public service delivery as well as the entirely understandable ever-increasing demand for information.
A decision on the extension of coverage, which was consulted on in 2010, was deferred until the bill had completed its passage through Parliament. As I indicated earlier, I now intend to bring forward a section 5 order as soon as is practicably possible. An initial order will cover arm’s-length sport, leisure and culture bodies that are set up by local authorities. We have already consulted on the extension to those bodies.
The Scottish Government will also look at extending coverage to other arm’s-length organisations that are set up by local authorities and which are carrying out public functions on an authority’s behalf, particularly where there has been a demonstrable loss of rights. We will engage with the Convention of Scottish Local Authorities, local authorities, arm’s-length bodies and other interested stakeholders to consider the matter further.
I hope that members agree that that approach allows us to address the issue of erosion. As I said earlier, further consideration must be given to extension as opposed to erosion; I have also said that I am not ruling out extending coverage to other bodies in the future.
Will the cabinet secretary take an intervention?
Do I have time, Presiding Officer?
No, not much—but go ahead.
The cabinet secretary says that she will bring forward a section 5 order
“as soon as is practicably possible”.
Can she give us an indication of where she thinks that we will be—for example, come the summer recess?
Cabinet secretary, please keep your answer brief.
I am happy to provide further information and I will provide the Finance Committee with precise timelines. I hope that, by the summer, the initial phase of the work that I have spoken about will have gone through Parliament and that the second stage of work on other arm’s-length external organisations will be well progressed.
I am getting the evil eye from the Presiding Officer, so to speak, so I conclude by saying that we have reached an important landmark for freedom of information. It is not the end of the journey, but it is an important milestone along the way.
16:10
It is fair to recognise that this has been a robust debate in many respects. A consensual approach for the future has been offered. However, we should recognise that this is—we have made the point at stages 1 and 3—a missed opportunity to introduce more comprehensive freedom of information legislation and to improve on what was built in Parliament in 2002.
We are disappointed that the Government has used its majority to vote down all but one of the Labour amendments. It must be recognised that many of the amendments were lodged after significant consultation of external organisations, including the Campaign for Freedom of Information, the Scottish Trades Union Congress and Unison.
I had expected that many of the amendments, particularly the one that was lodged by Iain Gray, would have received support from Scottish National Party back benchers. In particular, I refer to Bob Doris, who is quoted on the SNP website as having said in 2009:
“The Glasgow Housing Association must come into line with FOI. An organisation of such significance to the public life of the city needs to be transparent and accountable, as other public bodies currently are.”
That is a pretty strong and comprehensive statement.
I am sure that John Mason has made similar comments. I do not know whether he wants the opportunity to respond, but I would welcome his view on whether that remains his position, and why he voted against Iain Gray’s amendment.
I certainly associate myself with Bob Doris’s comments and, at the right time, I absolutely want to see GHA covered by the legislation.
Does Paul Martin agree that the Government has given considerable ground, and that the bill that we will pass today is considerably different from the initial proposal?
First, I confirm that the bill is considerably different from the 2002 act—it is only four pages long. [Interruption.] I am responding to John Mason’s question. If the Government were to interrogate the Freedom of Information (Amendment) (Scotland) Bill, that would take considerably less time than the 2002 act.
To be fair to GHA, we should recognise that—as Iain Gray said—it has complied with the spirit of FOI legislation, which I welcome. However, it is simply not good enough for the minister to advise members that the housing charter is in some way an able replacement for the FOI legislation. That is unacceptable. The minister should recognise that the housing charter and other voluntary schemes are not enforceable by law. That point has been made by a number of bodies, including the Campaign for Freedom of Information.
Elaine Murray lodged a number of perfectly reasonable amendments. Amendment 9 sought to ensure that arm’s-length external organisations are not used as a vehicle to deprive the public of their enforceable right to access information. I expected that many members would see that as a reasonable approach to ensuring that the public are not deprived—as has happened in the past—of that opportunity and their right to know, which is set out in the 2002 act.
To return to amendment 12, which is my amendment, I reiterate the point that maintaining and updating a register is hardly the Scottish Parliament’s Dyson moment. Every day, people in public bodies and private companies maintain registers. Such a proposal is hardly ground breaking.
When Mr Martin advanced his arguments for amendment 12, he made the point that the Scottish Information Commissioner already maintains a partial list. Does the fact that the commissioner is able to maintain only a partial list not underline the difficulties of maintaining a full list? If the commissioner were able to maintain a full list, I presume that the commissioner would be doing that now.
If we are serious about delivering the FOI legislation that Parliament passed in 2002, we must be serious about providing comprehensive and accurate information. I say with the greatest respect to the Scottish Information Commissioner that it concerns me that she is providing information on her website that, technically, could perfectly possibly be inaccurate. We must ensure that the commissioner is provided with the necessary resources for her to provide accurate information.
In addition, I think that the potential costs have been overblown. Many organisations, some of which I have referred to today, provide comprehensive lists of the organisations for which they are responsible, so I see no reason why the commissioner could not emulate that.
I confirm that we will, despite our differences with the Government, support the bill at decision time, although we recognise that the minister continues to face significant challenges—particularly in respect of section 5 referrals under the 2002 act. We want to ensure that she delivers those, so we will give her the opportunity to do so by voting for the bill to be passed at decision time.
16:16
I find myself being somewhat less critical of the Government than the Labour Party has been, and than I anticipate the Liberal Democrats will be. In the main, the amended bill is superior to the one that was presented at the beginning of stage 1, with a notable exception—which is, of course, the fact that the royal exemption has been removed. When I listened to the cabinet secretary at stage 1, I thought that I had found a kindred spirit who was a fan of the royal exemption. Alas, she made the error of listening to the majority of the committee—apart from me—and decided to remove the royal exemption.
It is most important that we hear from the cabinet secretary in her closing speech and, in the coming days and weeks, detail on the extension of the FOI legislation’s coverage and, in particular, on use of the order-making power under section 5 of the 2002 act, which she mentioned. I think that she has a clear understanding—as members of all parties have—that there is disappointment out there that the power has not been used since the FOI regime started.
I acknowledge the cabinet secretary’s use of the wording
“as soon as is practicably possible”,
but I intervened on her to get a handle on what that means in practice. That might be seen as splitting hairs, but given the issue’s background and history, and the fact that complaints have come from various parts of Scotland about the operation—or non-operation—of section 5 of the 2002 act, it is important that as much detail as possible be provided as quickly as possible about the initial stage, which she mentioned in her response to my intervention, and the second stage, to which she intends to progress. The more information that can be provided to the committee and made public, the better things will be for all concerned.
A number of amendments that were defeated would have strengthened the bill and made it a better package overall. Regardless of those amendments having been defeated, Conservative members will support the bill at 5 o’clock. The areas in which I thought a bit more work could have been done include the consultation process under section 5 of the 2002 act. I think that it was acknowledged by all that the initial definition was too narrow. The amendment that the cabinet secretary lodged at stage 2 was welcome; it definitely widened the consultation process. Despite that, Elaine Murray was right to point out the weakness that existed.
However, it was not just Elaine Murray—an Opposition member—who said that. As I pointed out, that was also the view of the Scottish Information Commissioner. At stage 2, having seen the minister’s amendment, the commissioner stated again:
“A weakness of the current provision is that it does not require consultation with the users of public services whose rights may be curtailed as a result of changes in public service delivery.”
I noted the cabinet secretary’s comment that consultations will involve members of the public, but given what the Scottish Information Commissioner has said and given that the amendment was not agreed to, it would be welcome if the cabinet secretary could outline in the coming days exactly how she intends to involve the general public, particularly in the initial consultation.
The other area that I felt could have been stronger relates to when the first report under section 5 of the 2002 act ought to be published, about which there was debate at committee. The initial proposal from Elaine Murray was that it be published in 2013, which I felt was too soon; I think that she acknowledged that it might be too soon. The bill initially mentioned 2016, but there was clear acknowledgement from the cabinet secretary that 2016 would be too late.
The position that Elaine Murray adopted in amendment 4 was a superior one. Agreement to that amendment would have given us a year and a half in which to report under the 2002 act’s section 5 order-making power. As I pointed out in an intervention, given what we heard about what the Government intends to do, there would be a great deal to report in a year and a half in terms of what the Government had done under section 5 of that act and in terms of progress. Amendment 4 is a missed opportunity.
I will be happy to return to those points in the closing speeches.
16:22
Given that yesterday we heard the deputy leader of the Labour Party in Scotland deigning to say that this Parliament is
“not a democratic place in the conventional sense”
and that it is
“a dictatorship”,—[Official Report, House of Commons, 15 January 2013; c 798.]
I sincerely thank the Parliamentary Bureau for finding the time to schedule a debate on the bill rather than passing it by diktat. Its generosity knows no bounds.
I welcome the bill because it builds on the Scottish Government’s good handling of freedom of information legislation and its commitment to build on the original act. If we look at the most recently available annual statistics, which are for 2011, information was released in the majority of cases in which it was requested—almost three quarters of cases. Of the 86 appeals to the Scottish Information Commissioner, some 70 per cent of decisions by the commissioner were wholly or partially in favour of the Scottish Government. Also, 83 per cent of the responses that were provided to requests were issued on time. By any standard, that is a pretty good record. Indeed, it improved on previous years. In 2005, it took longer for requests to be answered and fewer decisions by the commissioner were in favour of the Scottish Government.
We have a good record and the Scottish Government has adopted a proactive approach to releasing information. It routinely releases files for public consumption 15 years earlier than it is statutorily obliged to release them. That has been touched on in the debate; I believe that others would do well to follow that example. Earlier this month, the UK Government refused to accept the Scottish Government’s position that files on devolution from 1997 should be released under the 15-year rule.
With the best will in the world towards Mr Rennie, I thought that his explanation was entirely unconvincing: to blame officials is poor cover for a poor decision.
Does Jamie Hepburn accept that Mr Rennie’s explanation seems to be in marked contrast to the position of the better together campaign in terms of its demands for more detail on the case for independence?
Yes, I accept that. Not only that, but I presume that we can now look forward to never hearing from Mr Rennie—whenever a decision is taken by a Scottish Government official—a demand that the Scottish Government adhere to a request for information from him.
The bill is good news. It will pave the way for more information to be made public earlier, thereby building on the Scottish Government’s good practice that I touched on earlier.
I also think that we can now see that those who seek to circumvent FOI will be dealt with more severely under the legal framework, which will be very useful. Ministers will have to report back more regularly on use of the legislation, which is also good; to increase scrutiny by Parliament is a good thing.
The Scottish Government has, of course, listened to the committee’s and stakeholders’ concerns, which is a good approach. We have heard about the change in the position on the royal exemption. Notwithstanding Gavin Brown’s disappointment, I think that most people would welcome the fact that the Scottish Government listened to the committee and the stakeholders who spoke to it.
We have also seen movement on when the Scottish Government will have to report back to Parliament on coverage of extension of the 2002 act. I hear that there is some disagreement about when that might happen, but we have seen movement from the Scottish Government’s original position. Again, it is listening to the Finance Committee’s concerns. All in all, that is a good approach that should be welcomed across the chamber.
I very much welcome the bill.
16:25
The bill is quite strange in a sense because, as introduced, it presented us with very little with which to disagree. I think that the only substantial point of disagreement on what was in the bill was to do with the royal exemption. The cabinet secretary gave way on that, so in a sense everybody agrees with everything that was in the original bill. On the whole, the substantive debate today and much of the debate previously has been about what is not in the bill. That debate will continue because, from Labour’s point of view, what should be there is still not there.
The cabinet secretary made her headline announcement today, of course, and she presented it as the answer to all our questions and concerns. However, it is a fact that what she has announced today means that bringing new bodies under the freedom of information legislation will be entirely at the discretion of the Government of the day. That means that that will, at present, be at her discretion, given the SNP’s parliamentary majority, which is precisely what our amendments tried to avoid.
The point that I made in an intervention on the cabinet secretary stands: everything that she has brought into the bill is about reports having to be published. There is no requirement whatsoever for any new bodies to be covered by freedom of information legislation. She has said that she will do that at her discretion—no doubt under the pressure that she has been under from the wider public and, indeed, her own back benchers, but that does not mean that any other minister in any future Administration would be under any obligation to introduce any new bodies.
The second point that I made in my second intervention about the cabinet secretary’s objection to our specific amendments also stands, because there was nothing to stop her lodging other substantive amendments about ALEOs or any other bodies such as GHA, had she wished to do so, in order to correct our wording if she thought that it was technically wrong. The point about GHA that Iain Gray made was very interesting, because the cabinet secretary invoked the Scottish housing charter. In fact, good as the charter is, there are still grounds for concern, because freedom of information means that the public decide what they will get and when they will get it. The charter means that it will remain entirely at the discretion of the housing authority to withhold or give information and to decide when it is released.
The principle that I put forward in the stage 1 debate remains: if a body takes taxpayers’ money, it should follow FOI legislation. That is, of course, consistent with the long title of the bill that we debated all those years ago, which referred to
“the disclosure of information held by Scottish public authorities or by persons providing services for them”.
I believe that there is an issue in respect of article 10 of the European convention on human rights, which embodies the right to form an opinion. That involves getting information in order to be able to form an opinion. Quite a lot of European case law backs that up.
I want to raise another point in the final minute of my speech. We are considering wider FOI issues. My point relates to how FOI is currently interpreted. The cabinet secretary should also address her attention to that. Before Christmas, I asked why a particular report from Healthcare Improvement Scotland on inspection of acute care at Ninewells hospital had not been released. The health minister said—among other things—that Healthcare Improvement Scotland “may” publish such reports. It seems to me that that is absolutely wrong. That body and other public authorities must publish such reports.
My concern was increased when my colleague Jenny Marra received an email from Healthcare Improvement Scotland today that states that her FOI request about the report, which she placed in December, is not to be granted now but will be granted in March. However, the reality is that the inspection was in September, which was why she asked under FOI why the report had not been released. She is now told that it will be done in March.
I commend the cabinet secretary for setting up the inspections of acute care for older people, but I think that, like Jenny Marra, she should ask why the report has not been released.
16:30
When we started considering the bill, a number of us identified two main problems with it—the first of which was the idea of a royal exemption. I think that the Finance Committee convener and Michael McMahon were especially concerned about that.
The second problem was that no new bodies had been added to the list of bodies for FOI coverage, which I, among others, was concerned about. The Finance Committee report highlighted those issues, and I think that the report was considered to be fair.
I commend the Government in general and Nicola Sturgeon in particular for listening to the committee and responding to those points. Specifically, the Government removed the royal exemption and agreed to consider additional organisations for FOI coverage. Originally, that was going to be done by June 2016, but as that date would be after the next parliamentary election, the date has been brought forward to October 2015. I accept that some people would like that date to be tomorrow and that others would like it to be yesterday, but there must be a certain amount of willingness to compromise, so the proposed date is acceptable. Those changes to the bill should not be underestimated. They have changed it from what I had considered to be a somewhat disappointing bill to a hugely improved one that is, as far as I am concerned, definitely acceptable.
We should pay tribute to the Campaign for Freedom of Information in Scotland, whose briefings and evidence have been extremely helpful. My judgment is that it has achieved probably 75 per cent of what it set out to achieve for the bill. Of course, it wanted to achieve 100 per cent, but we can all be grateful to it for the strong case that it made in the bill’s progress through Parliament.
The point has been made that if we were starting from scratch with brand-new FOI legislation, we might do things differently; in particular, such legislation might include a purpose section. I would certainly support such a section. I have supported such provision elsewhere—for example, for the bill that became the Equality Act 2010. I argued for a purpose section for the bill, but the Labour Party argued against it. However, in the case of this bill, we were amending existing legislation and not rewriting it, so I did not consider it appropriate to introduce major amendments that would, as the cabinet secretary said, have overlaid the bill rather than amended it.
The point was also made that mindsets, as well as the legislation, need to change and that it is not just about the law, but about getting people to think differently. I agree. There is still the assumption in some quarters, and perhaps even in Parliament, that information should be confidential unless there is good reason for it to be otherwise. However, I argue the exact opposite: information should not be confidential, unless there is good reason for it to be otherwise, which is why removal of the royal exemption is so symbolic and significant. Of course, not many cases may be affected by that provision, but it is a clear statement from Parliament that there must be a reason for confidentiality of information and that it must not be just because the information refers to a monarch, a Government or an MSP.
Malcolm Chisholm believes that it was right to remove the royal exemption from the bill. However, had it not been taken out, would it have “overlaid” the bill or would it have “amended” it? If it would have amended the bill, surely a purpose section would have done the same thing?
A purpose section would have been an amendment on a specific point. A purpose section would overlay or underlay a bill, which would have changed the bill and the Equality Act 2010 (Amendment) Bill at Westminster.
At the end of the day, we are debating how fast we should move on the bill’s provisions. I think that we all agree pretty well about the direction that we are going in, although some want to go faster while some, like Gavin Brown, want to go slower. However, I believe that the bill shows that we are moving forward.
16:34
I had high hopes for the cabinet secretary. I thought that the words that she uttered in the earlier debate on the bill indicated that she was listening and that she understood; that she was expressing sympathy about the erosion in freedom of information rights that we have seen over the past few years. However, her actions today did not match her words. I was disappointed by her timid response on coverage and unspecified time; Gavin Brown was right to identify that.
The SNP has had more than five years in power, and it has been two and a half years or more since the consultation on extending freedom of information rights over the bodies that were specified in section 5 of the 2002 act, but there has been very little action. I hope that the cabinet secretary comes forward with much more ambitious and bolder plans for extending those rights because, as she herself admitted, people’s rights have been eroded.
Documents such as the housing charter will just not be sufficient. The freedom of information regime is a tried and tested system that people understand and that they use well. The Government might not like it, but people do use the system. As a Liberal Democrat, I am certainly proud of it and of the fact that Jim Wallace, with the support of other members, pioneered and piloted the bill through Parliament. However, the principles that were established at that time have also been eroded and it is important for us to repair the damage. The cabinet secretary has a lot of work to do to convince us that the amended act represents not just lip service but real change, and that we will see those eroded rights being repaired.
The public are with it. The Information Commissioner has done a lot of polling and found that most people are in favour of extending coverage to housing associations, trusts, private sector companies who build and maintain local authority schools, hospitals, and prisons that are run by the private sector. The public is all in favour of those bodies being covered by FOI legislation, so if the cabinet secretary is to stay in step with public opinion she should make that change.
It is just not right that tenants in South Lanarkshire can access information about their council and their tenancy while tenants in Glasgow do not have the same rights. The vote on Iain Gray’s amendment was disappointing because the Government did not take the opportunity to send out a clear signal that the housing associations are going to be included. It could have also done that for schools and public-private partnership contractors because the public has a right to know. If the public pound is involved, the public should have the right to know how it is being spent. Keeping that secret does not chime with the FOI principles that were established by the 2002 act.
Malcolm Chisholm was right about article 10 of ECHR. The cabinet secretary needs to be careful about that because challenges have been made in the European Court of Human Rights.
Will the member take an intervention?
Not just now.
If they are to make a decision and have freedom of expression, people have a right to information. The Government should be mindful of that.
Will the member give way?
The member is in his final minute.
I am running out of time.
The Government also needs to be careful because its reputation on freedom of information has been damaged by going to court on at least two occasions over the legal advice on Scotland in the European Union and also over a local taxation system. Also, in the Ayrshire and Arran case, the FOI regime was seen to be valuable in making sure that we learnt the lessons from the deaths of patients.
Freedom of information has real value. It is not just some chattering-class discussion; it is about people, their lives, and their rights. I hope that the cabinet secretary lives up to that ambition.
16:38
Saul Alinsky, the campaign and community organiser in the United States, had as one of his “Rules for Radicals” to “make them live up to their own rhetoric”. The idea was that those in power should be forced to deliver on the things that they freely said that they would do. In a way, any debate among politicians about freedom of information is about making us all live up to our own rhetoric. Who would be against openness and transparency?
Of course, the proof of the pudding is in the degree to which we are willing to force ourselves to do that. The cabinet secretary acknowledged that during the debate on my amendment 14 when she said that her Government should be judged by its actions on freedom of information.
Members will expect me to say that such a remark does not serve the Government particularly well, when we consider the speed with which it moved in introducing the bill. Ever since the 2002 act was passed the SNP has said clearly that FOI should be extended to housing associations, arm’s-length bodies and contractors in Government contracts. That is what the SNP argued in opposition, and when it came into government it said that it would make those changes. However, it took the Government until 2010 to carry out the consultation and then it introduced a bill that did not extend FOISA at all. The Government’s action on the bill does not live up to its rhetoric.
Nor do other day-to-day actions of the Government live up to its rhetoric. I am thinking about the court cases around local income tax or legal advice on the European Union, when the Government resisted the release of information despite the commissioner’s decision. I am reminded of the Professor Qvortrup controversy, when emails were released in stages so that the particularly difficult one came out just before or after Christmas. The Government’s actions are nothing to be proud of.
I must be honest and say that no Government or Administration finds FOI particularly easy. I acknowledge that the previous Scottish Executive failed to use section 5 to extend FOI coverage, although we said that it would be desirable to do so. I recall much high-flown rhetoric in 2001 and 2002 about having the best FOI legislation in the world, and I am not sure that we lived up to those aspirations. I thought that we would do. A member said that, given that I was instrumental in setting up GHA, I should have noticed that people were losing their FOI rights in the transfer. I did notice that, but I assumed that my Administration would extend FOI to housing associations. I have to acknowledge that that did not happen.
The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing. I think that we failed the test today: we could have extended FOI but we missed the opportunity to do so. Today has also been an exercise in futility, because at some point FOI will be extended to the bodies that we have been talking about. The tide of history is running in the direction of more information being available to the public.
I think that the cabinet secretary realises that, which is why she made a concession and promised to use section 5. It is a pity that it looks as if she was dragged kicking and screaming to that position, when she could have extended FOI in the first instance and correctly claimed to be living up to her own rhetoric. The jury is still out on whether, in the long run, she will live up to her rhetoric on openness and transparency.
We move to the wind-up speeches. I call Gavin Brown; you have up to four minutes—less would be more, please.
16:43
I will be happy to oblige, Presiding Officer.
I align myself with what John Mason said about the Campaign for Freedom of Information in Scotland. I do not agree with everything that the campaign says and I did not agree with all its proposed amendments, but it did an excellent job of informing the committee and the debate, and I agreed with a number of its suggestions.
I will talk about areas in which the bill could have been strengthened. I think that we missed a trick today in not agreeing to Paul Martin’s amendment 12, on functions of the commissioner. Mr Martin proposed that the commissioner should
“prepare, publish and update as necessary a list comprising those persons or bodies who are Scottish public authorities”.
I thought that that was a fairly straightforward proposal, and I was happy to support it. Given that the amendment was not agreed to, I ask the cabinet secretary whether there is a way in which we can strengthen the partial list that currently exists. As a consequence of the vote on amendment 12, Mr Martin’s approach has not been put on the statute book, but is there a way of improving the list so that the objective that he sought to achieve can be achieved in practice? I hope that the cabinet secretary will address the matter, either in her closing speech or in the days to come.
I will bring my remarks to a close in a positive fashion because, as I said earlier, we will of course support the bill at decision time. I acknowledge that there are a number of big improvements in the bill. One is the move away from the three-year reporting period to a two-year reporting period. That is generally acknowledged to be fair, and I think that that was one of the few amendments that went through without a vote.
Section 5 of the bill, on time limits for proceedings, is extremely important, as the cabinet secretary said in her opening remarks. The change from six months after the commission of an offence to six months from when sufficient evidence of an offence comes to the knowledge of a prosecutor is crucial. There were potential investigations and prosecutions that did not go ahead simply because we ran out of time.
It was, possibly, inevitable that the previous arrangements would not work. If there are 20 working days to respond to a request, 40 working days to ask for a review if the response is felt to be unsatisfactory and 20 working days to review a response, that cuts a large slice out of the six-month period. The amendment that will be made by the bill that will no doubt be passed at decision time makes the legislation far stronger and gives real teeth to the prosecution.
I welcome the intention of the cabinet secretary in relation to various points that she alluded to this afternoon. However, this Government and the cabinet secretary’s commitment to freedom of information will be judged almost entirely on what is done over the next few weeks and months, with particular reference to the section 5 order-making power. The Government will be judged by what it does, not by what it said today.
16:46
The bill, which the Labour Party will support at decision time, leaves us with measures that are not all that controversial. Of course, we will support measures that ensure that a more flexible approach is adopted to accessing information from historical periods. It makes good sense that, if information is already in the public domain, there is no need for a public authority to publish it. As the cabinet secretary said, if there are offences under the act, it makes sense to ensure that the period for amassing evidence and bringing a prosecution is brought into proper timelines, and the legislation does that.
The major controversy at stage 1 concerned the royal exemption, with many in the Parliament arguing that the public interest clause is sufficient. I am glad that the moderate and calm voice of Kenneth Gibson prevailed on the SNP benches and that the Government backtracked on its proposal.
Today’s debate has been instructive in terms of the approach that the SNP has taken. With regard to Michael McMahon’s amendment 9 at the start of the debate, I thought that—to use the cabinet secretary’s phrase—laying out a purpose at the start of the bill would be good lawmaking. In a situation in which the landscape has changed greatly since 2002 and there have been more disputes about freedom of information, some clarity on the legal process would have been useful.
The debate around Iain Gray’s amendment to extend the legislation to GHA was interesting. As Paul Martin told us, Bob Doris—whom he quoted—and John Mason have expressed support for extending the FOI legislation to GHA but, during that debate, it was very much the silence of the SNP lambs.
I have spoken quite a lot this afternoon. Does James Kelly accept that the amendments that the Government has brought forward are significant and have changed the bill?
As Malcolm Chisholm pointed out, many of the so-called changes that the Government intimated this afternoon concerned powers being invested in ministers. People are looking for real power in legislation not only so that FOI practitioners can be clear about what their duties are but so that the public can be clear about what freedom of information requests they can make.
The SNP’s approach to the bill underlines its approach to government. It was amusing to hear Nicola Sturgeon and Jamie Hepburn talk about the SNP Government’s good record on FOI when it spent £100,000 trying to block discussion on council tax plans.
Will James Kelly give way?
I am short of time, or I would let Jamie Hepburn in.
We did not make the law. Give way.
The member is in his last minute.
Members should not tell us about the SNP Government’s good record—[Interruption.]
Order.
The SNP Government wasted £12,000 of taxpayers’ money going to court about legal advice that was not available. What a waste of money that was.
We will support the bill at 5 o’clock, but there is no doubt that the bravehearts in the SNP have been faint-hearts this afternoon. It was a missed opportunity to deliver more openness and transparency.
16:51
James Kelly might be well advised to look back at the Official Report of his speech and consider whether he wants to make use of any of the new procedures to correct the record. I will not dwell on that any further at the moment.
I thank everybody who contributed to today’s debate. It was lively, which is a good thing. We are debating an important subject.
In his usual cheery way, Paul Martin talked about missed opportunities. He wasted an opportunity to recognise that the Government listened to many of the comments that were made about the bill and responded accordingly.
John Mason and Jamie Hepburn were absolutely right to say that the bill is very different today from what it was on introduction. It is different for a reason: the Government listened to the points that the committee made and proposed amendments as a result.
It is probably difficult to think back now and remember that, at introduction, the most controversial part of the bill was the royal exemption. That measure has not been debated today because it was removed by a Government that listens. Even those who think that we should go further should have the good grace to recognise that.
I am not sure that I could ever have lived up to Willie Rennie’s high ideals and principles, but I will always try. I simply say to him—and I say it seriously—that it is a pity that, although he preaches those high ideals, his party completely fails to practice them. I say to him seriously and sincerely that I find that deeply disappointing.
I turn to the main issue that has dominated not the bill but the debates around it: the extension of coverage. The bill was never intended to extend coverage because the power to do so exists in the 2002 act—that is the section 5 power about which we have spoken.
Malcolm Chisholm was right that the debate about the bill has focused more on what is not in it than what is in it, but I have to say that he made an uncharacteristically uncharitable speech. I know how honourable he is, so I am sure that, when he reads the Official Report, he will concede that it was uncharacteristically uncharitable. I did not say at any point that what I announced today about the use of the section 5 order was an answer to all the concerns that have been expressed. I said that it was a first step. I stressed the fact that the order about which I was talking was an initial order. Malcolm Chisholm and James Kelly made much of the ministerial discretion to decide whether to use the power to extend coverage. I simply say—particularly to Labour members—that that has always applied. The bill will not change that; the change in the bill is that the ministerial discretion will be the subject of greater accountability to the Parliament than has ever existed before. That is a positive step in the right direction.
Will the cabinet secretary give way?
I hope that Malcolm Chisholm will be more characteristically charitable in his intervention.
I will be charitable in the sense that I recognise and welcome the fact that the cabinet secretary will introduce a section 5 order. However, the point is that that is at her discretion. If she had accepted our amendments, that would no longer have been at the Government’s discretion, because legislation would have required certain bodies to be included.
The point that I make to Labour members—including people such as Malcolm Chisholm, who were ministers in the previous Administration—is that the power has always been subject to ministerial discretion. That discretion will now be the subject of more accountability than has ever been the case before and I hoped that Malcolm Chisholm would welcome that.
I concede—as I have conceded before—that, when we look back at the debates on the original bill, it is clear that expectation was high that the power to extend coverage would be used early and regularly. That has not happened. As Gavin Brown was right to say, that has caused disappointment, which I recognise and want to address.
However, it is a bit rich for those whose parties did not extend coverage when they were in government—and for those whose parties are now in government but are not ensuring that UK freedom of information legislation goes even as far as that in Scotland—to criticise the Scottish Government, which intends to make a section 5 order for the first time. I would have thought that those who want freedom of information coverage to be extended would welcome that.
As I said earlier, in developing proposals for future orders—and in discussion with stakeholders and interested parties—I will adopt a staged, function-based approach that prioritises areas in which rights to information have been lost following the transfer of a function or service from a public authority. I do not rule out going further. As I said, I will give that due consideration. However, I do not think that that consideration should hold up the action that I have talked about today in relation to ALEOs.
Will the cabinet secretary give way?
I will give way if the member can be brief.
I am interested in the prioritisation of ALEOs. I understand the principle that is behind that and I support it, but I worry that there are other significant bodies, extending coverage to which has been consulted on. Why cannot those bodies, such as contractors that are building and running prisons, be included in the early order?
I have said that I am considering that. When we debated one such body earlier, I said why I was not announcing such a measure.
The Parliament will continue to debate the issue. As I said to Malcolm Chisholm, because of the changes that we have made in the bill, there will be much greater accountability for the use of or failure to use the power.
I hope that members will support the bill, as all the parties have said that they will. It is another important step along the road of embedding a culture of openness and transparency. There are more steps to take, including the secondary legislation that will flow from the bill, but I hope that members are assured of our commitment in taking those steps in the months and years that are ahead.
With those comments, I am pleased to commend the Freedom of Information (Amendment) (Scotland) Bill to the Parliament.