Plenary, 17 Jan 2002

Meeting date: Thursday, January 17, 2002

Official Report 701KB pdf

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Freedom of Information (Scotland) Bill: Stage 1

Good morning. The first item of business is a debate on motion S1M-2274, in the name of Jim Wallace, on the Freedom of Information (Scotland) Bill.

I preface my remarks by informing the Parliament that I have a ministerial meeting in London this afternoon to discuss European matters—I think that this debate was originally pencilled in for yesterday. I have written to Roseanna Cunningham and James Douglas-Hamilton to inform them of that, and I spoke to the Presiding Officer about it yesterday. I apologise that I will not be here for the conclusion of the debate, but Richard Simpson, the Deputy Minister for Justice, will be here throughout and I will read the Official Report with interest.

The consultative steering group, in setting out the principles to guide the work of the Scottish Parliament, was clear that it was to represent a new form of democracy: an accountable, visible Parliament, where people were encouraged to participate fully in public debate and the policy-making process. Above all else, it was proclaimed that the Parliament was to be open and accessible to all. Those same principles sit at the heart of the Freedom of Information (Scotland) Bill, which is why I believe the bill to be of significant importance to the Parliament.

Freedom of information facilitates public debate. I believe that information is the currency of an open, democratic society. An effective freedom of information regime will result in more information being in the public domain and encourage public authorities to make information available voluntarily. The reasons for the decisions that affect all our lives will be readily available, which will stimulate and encourage informed public debate. The bill gives us the opportunity to extend those principles beyond the Parliament to the rest of the public sector in Scotland.

I am pleased that the importance of the bill is recognised by the Justice 1 Committee in its report, and that the committee recommends that the Parliament agrees today to the general principles of the bill. I am also pleased that the report welcomes what I consider to be the bill's key elements: the independence of the Scottish information commissioner; the user-friendly application system; the obligations on authorities to assist applicants; the harm test of substantial prejudice; and the important role to be played by the codes of practice.

The committee raised a number of other issues, which we will need to consider and to which we will give serious thought. I take this opportunity to thank Christine Grahame, the convener of the Justice 1 Committee, and the other committee members for their work in taking evidence and producing their report.

Despite widespread recognition of the importance of the bill, I fear that there are a few—perhaps on the Conservative benches—who maintain that the bill is not necessary, and that we simply do not need freedom of information legislation. Their argument goes that, if the Scottish Executive is so committed to openness, all it need do is disclose all the information that it holds. To say that that is a misunderstanding is an understatement. I cannot say that 18 years of Conservative Governments did a great deal to make the case for freedom of information.

I have no doubt that the legislation is necessary. Similarly, the many individuals and organisations who responded to our two consultation exercises have no doubt that the bill is necessary, and I am delighted that the majority of members of the Justice 1 Committee have recognised that it is necessary.

Will the minister give way?

In just a moment. For the benefit of anybody in the chamber who might think that we do not need the bill, let me give a few reasons why we do—but before doing so, I will give way.

Will the Deputy First Minister tell us what percentage of visitors to his constituency surgeries over the past year have pressed him to introduce a bill on freedom of information?

Many of them have sought information, but I do not think that any of them has asked for a freedom of information bill. My constituents know, however, that when I first stood for election in Orkney and Shetland and was asked what private member's bill I would introduce if I were ever successful in the House of Commons ballot, I said that it would be a freedom of information bill. Regrettably, I was never successful in the House of Commons ballot, but now that I have this opportunity in government in the Scottish Parliament, I am delighted to take it.

Does the minister agree that the Tories seem to be showing the same niggardly attitude to the Freedom of Information (Scotland) Bill that they showed when they voted against the second reading of the Freedom of Information Bill down at Westminster?

It appears that the same line is being followed, and I think that that is regrettable. If we are to promote an open democracy, this measure will form an important part of that.

Why do we need the bill? First, it will establish a legal right of access, which will, if information is withheld improperly, be defended by the Scottish information commissioner. If we had not introduced the bill, we would always have had to rely on what public authorities alone decided should be available. If public authorities did not want particular information to be disclosed, it would not be disclosed.

Secondly, and just as fundamental, the bill applies across the length and breadth of the Scottish public sector. The Scottish Parliament, the Scottish Executive, local authorities, the national health service in Scotland, the police, education institutions, non-departmental public bodies: all those bodies will be subject to the freedom of information regime. It has been suggested that it would be sufficient if the Executive were simply to disclose all the information that it holds, but that would offer no guarantee of openness throughout the rest of the Scottish public sector. If we are committed to promoting a culture of openness and transparency across our public authorities, we need to take significant steps to encourage that culture. That is one of the reasons why new legislation is necessary.

The establishment of a statutory freedom of information regime was an early priority for the Executive. It was set out in both the partnership agreement and the first programme for government. Although freedom of information is, on the face of it, a set of quite simple principles—a legal right of access; a limited set of exemptions to protect sensitive material; and an independent arbiter to supervise the regime—the detail can be far from straightforward. That is why we have taken time to develop the right bill, which has been designed specifically for Scotland.

We undertook two consultation exercises and received a good response to both. Many of the issues that were raised in those consultations are reflected in the bill that is before us. We have drawn on international experience of freedom of information regimes elsewhere, particularly those in Ireland and New Zealand. I and my officials have met representatives of the range of organisations that have followed the bill's development, most notably the Campaign for Freedom of Information in Scotland, Friends of the Earth Scotland, the Scottish Consumer Council and the statutory equality bodies.

The Justice 1 Committee's stage 1 report welcomes the close relationship that we have enjoyed with a wide range of organisations, and I thank those who have been involved. The bill that we are debating today is testimony to their efforts and input. The consultation process has delivered a strong bill. The process has been extensive and genuine, and the discussion that has ensued has been informed and constructive. That is why the bill is widely recognised as a balanced and strong piece of proposed legislation.

That is not to say that there has not been debate about the detail, and I am sure that that debate will continue during stage 2 consideration. We intend to announce at stage 2 any revision to our proposals on charging, and we will make available provisional drafts of the two codes of practice that will support the operation of the legislation.

I mentioned earlier the three basic elements to the bill's principles. Those elements are: a legal right of access; a limited number of narrowly drawn exemptions to protect sensitive information; and an independent arbiter, the Scottish information commissioner, who will supervise and police the information regime.

An effective legal right of access to information held is central to the bill. The right of access is open to all. It can be exercised by anybody worldwide, and the bill is specifically designed so that it will be exercised. To make a formal freedom of information request, all that an applicant need do is make a request in writing, describing the information that they are looking for and providing their name and address. That is all. Applicants do not need to cite legislation or specific sections of it, nor need they say why they are requesting the information. The bill establishes a right to know that is not reliant on establishing a need to know.

We tried to ensure that the application and appeals procedures would be user-friendly and quick. Long drawn-out procedures are time-consuming and expensive, and they almost always work to the detriment of the individual. We considered it essential to avoid that. As a result, an authority is obliged to respond to an applicant within 20 working days.

To keep the whole process moving, the bill provides that an applicant who is dissatisfied with an authority's response has 20 working days in which to request that the authority review its original decision. Following a recent meeting with Friends of the Earth Scotland, and having taken on board the views of others, including the Justice 1 Committee, we intend to lodge an amendment to extend that period to 40 working days, which will provide an applicant with some extra time before the right of appeal lapses. I will say more about the appeals process when I talk about the role that will be played by the Scottish information commissioner.

The second main element of the bill is exemptions. When freedom of information regimes are discussed, exemptions always get a lot of attention and they are, perhaps understandably, seldom popular. There is no doubt that the right of access must be carefully balanced against the right to privacy and confidentiality and the need to ensure that sensitive information is properly protected. We have sought to find the right balance and, in doing so, have tipped the scales decisively in favour of openness.

When we set out our original proposals, we indicated that we were considering the adoption of a harm test of substantial prejudice. That was enthusiastically welcomed at the time and has been welcomed at every stage since. I am pleased to note that the Justice 1 Committee, too, welcomes the provision.

Some comment has been made on class exemptions, which, it is important to stress, are a standard feature of freedom of information regimes. It is widely recognised that certain categories of information are particularly sensitive and require appropriate protection. Protection is required not just for the information concerned, but for the processes involved.

For example, when an authority conducts an investigation into an individual's conduct, it is likely to seek statements from others involved. Often, individuals will be asked to make candid and frank statements about other individuals. I have no doubt that the candour and frankness of those statements would be materially affected by the risk of routine early disclosure. Such statements should be made with the security that information will be disclosed only when it is in the public interest to do so. That argument applies equally to other class exemptions. Advice to ministers should be given with a candour that can be guaranteed only by ensuring that the officials involved understand that their advice does not run the risk of routine early disclosure.

That does not mean that information that falls into a class exemption will never be disclosed. Except for some technical exemptions, an authority will be required to consider whether the information should be disclosed in the public interest. A public authority must still consider whether there are broader factors that require disclosure of that information in the public interest. Authorities will also need to ensure that they can justify their decisions to the commissioner.

The appointment of a Scottish information commissioner is the third, and perhaps the most important, feature of the bill. The commissioner will police the right of access. If an authority does not take seriously its obligations under the legislation or tries to escape them, the commissioner will be there to act. Because of that, I took the view that it was crucial that the commissioner should be fully independent. The bill provides that the commissioner be appointed by the Queen, on the nomination not of ministers, but of the Parliament.

The commissioner's independence will ensure the integrity and credibility of the regime. Applicants will be reassured that authorities will not be able to stall and stall and stall before responding. Authorities will be required to give serious consideration to the application of exemptions. It should not be a case of their saying, "How can we withhold this—do any of the exemptions apply?" Instead, the commissioner will ensure that the default setting is disclosure.

The commissioner's role is vital, not just in enforcing the freedom of information regime. International experience of establishing such regimes has demonstrated that public authorities do not always embrace the principles of openness and transparency easily and quickly. As well as legislation, promoting cultural change is essential and the commissioner will be in a perfect position to do that. Working on a day-to-day basis with public authorities, the commissioner will be able to help the authorities to apply the legislation. He or she will be able to work with authorities in the development of publication schemes, emphasising the importance of publishing information voluntarily rather than waiting for requests. The commissioner will set out best practice and ensure, for example, that effective advice and assistance is provided to potential applicants. I believe that, through such work, the commissioner will be able to accelerate changes in culture and to encourage openness and transparency across the Scottish public sector.

Implementation has been the subject of some recent media speculation, but there can be no question about our commitment to timely implementation. The five-year provision that is outlined in section 72 of the bill is a backstop, rather than an indication that we expect implementation to take five years.

Our preparations for implementation are already in motion. In February last year we established a working group with members from across the public sector, including local government, the police and education bodies, to consider how we could plan and prepare for implementation. The group has met several times and will soon report formally to me on its progress. We have taken steps to ensure that we can have the commissioner in place as soon as possible. On our initiative, amendments have been made to the Parliament's standing orders to allow appointment arrangements to begin following the completion of stage 1 of the bill, although the appointment of the commissioner by Her Majesty must await the bill's royal assent.

Those are not the actions of an Executive that is keen to delay the implementation of the bill. At the same time, it is important to recognise that the bill cannot be implemented overnight. A commissioner must be appointed, an office must be established, and staff must be employed and trained. All that must happen before the commissioner can begin the important tasks of working with authorities, providing necessary guidance, approving publication schemes and explaining how, in his or her eyes, the regime will operate. That work cannot be done overnight, but I am determined that it should be done properly. For that to happen, it must be done carefully and comprehensively. I aim to ensure that it takes as little time as is practically possible to put Scotland's freedom of information regime properly in place and to get it up and running and working.

Our commitment to openness, to an effective and balanced freedom of information regime and to timely implementation should not be in any doubt. Freedom of information is an important issue and should have particular resonance with this new Parliament. Of course, there are matters of detail that need to be addressed. We intend to work through those matters with the Justice 1 Committee at stage 2. However, the bill is generally acknowledged to be necessary and balanced. It is a strong and balanced bill, and I urge the Parliament to support it.

I move,

That the Parliament agrees to the general principles of the Freedom of Information (Scotland) Bill.

As most people know, the SNP supports the Freedom of Information (Scotland) Bill and the intention behind it. We welcome today's debate and the widespread, if not quite unanimous, support for the bill in the Parliament.

There are points where we would like changes to be made, but the Parliament should feel considerable satisfaction that it is debating a bill that underlines the difference between this Parliament and Westminster. Our freedom of information regime will be much more robust than the regime that was set up under the Freedom of Information Act 2000. I have no doubt that campaigners in England and Wales will continue to press for changes to be made down south to emulate what we will have in Scotland. However, as I have hinted, that does not mean that the bill is perfect. I am sure that the Minister for Justice would be bitterly disappointed if I said that it was. He might also be very surprised.

The fact that, in many ways, the Scottish bill is better than the UK act does not mean that it does not contain flaws, or that the UK act does not have the edge over it in a couple of areas. Where that is the case, I am not averse to a bit of cross-border raiding; at times there is nothing wrong with legislative plagiarism. There are one or two areas in which I would like to propose such plagiarism.

The first area of concern is class exemptions. I am sure that the minister is not surprised to hear me say that. Everyone accepts that a bill on freedom of information has to contain some exemptions. However, those exemptions should depend entirely on the content of the information that is being sought, rather than its broad type, as is the case under a class exemption.

There is justification for the view that the harm test and the public interest test are sufficiently robust to deal with those occasions when information ought to be withheld. If the minister were confident about the robustness of those tests, he would not need to insist that class exemptions be retained in the bill. In written evidence to the Justice 1 Committee, the National Union of Journalists pointed out:

"If harm cannot be demonstrated to the Scottish Information Commissioner, then either the harm test is wrong, the Commissioner is wrong, or there is no harm."

It is difficult to argue with that.

Insisting on class exemptions for police, judicial and statutory investigations, including health and safety investigations, could protect any stage of any investigation by any public body. In practice, that means that, even if the bill had been in place, no additional information would have been available on the BSE crisis, food safety, rail safety or any number of recent major public scandals. Although I do not share Conservative members' view that the bill is pointless, I believe that the minister should guard against giving substance to their criticisms. I am afraid that the bill's provisions on class exemptions create precisely that possibility. However, I know perfectly well that, if the minister had introduced a bill that did not contain class exemptions, that would have given Conservative members even more cause to complain.

The second area of concern is the bill's provision for a decision on the disclosure of information or an enforcement notice to be made void by a certificate issued to the commissioner by the First Minister. In effect, that would give the First Minister a veto on freedom of information. Many witnesses who gave evidence to the Justice 1 Committee during stage 1 consideration of the bill spoke out against that power. The NUJ, in a paraphrase of its concerns about class exemptions, argued:

"If harm cannot be demonstrated to the commissioner or to the court, what harm can exist—other than perhaps political discomfort?"—[Official Report, Justice 1 Committee, 21 November 2001; c 2838.]

The NUJ described the provision as

"not a belt-and-braces approach—it is a belt, braces and straitjacket approach."—[Official Report, Justice 1 Committee, 21 November 2001; c 2841.]

Executive officials told the committee that ministerial certificates would be used only in "limited circumstances". My problem with that assurance is that similar reassurances have been given before.

The Law Society of Scotland's comment on the predicted infrequency of the use of ministerial veto was succinct. It said:

"it is frequently said that the procedure … will never be relied on. In that case, why is it there?"—[Official Report, Justice 1 Committee, 21 November 2001; c 2812.]

Why, indeed?

It is not necessary to go abroad to discover occasions on which ministerial vetoes have been abused. I note the example of New Zealand, which was given in evidence by the Campaign for Freedom of Information, but the experience of Sewel motions in the Scottish Parliament ought to give all members pause for thought. As with Sewel motions, a trickle can soon become a stream or, indeed, a flood. As the Campaign for Freedom of Information put it:

"Our concern is that when the veto has been used once or twice and ministers discover that it is relatively easy to get away with it, it will become a frequent occurrence."—[Official Report, Justice 1 Committee, 27 November 2001; c 2898.]

That raises a real concern, which must be taken on board. The minister has been a long-standing campaigner for freedom of information and I am sure that he understands that concern.

The third area of genuine concern is the proposed cost for accessing the right to access information. Friends of the Earth Scotland and the Law Society are but two of the organisations that have serious concerns about the implications of a charging structure that would effectively render that right meaningless. That is one area in which it would appear that the Westminster legislation has the advantage. I cannot say whether the minister is standing by the figures that were outlined in the commentary that accompanied the draft bill, but they are a matter of some controversy. An inquirer would have to pay up to £50 for a piece of information that it would cost a UK body £500 to provide. However, the inquirer could be asked for up to £400 to obtain similar information from a Scottish body—to those that have will the information be given.

The Law Society described the issue of costing as

"the kernel of the whole system's integrity".

It went on to say:

"If people cannot translate the rights under the bill into an effective remedy, the bill is meaningless".—[Official Report, Justice 1 Committee, 21 November 2001; c 2812.]

The minister referred to costs in his speech, but I hope that more detail will be provided before stage 2.

I will elaborate the position a little. The draft bill's proposal reflected the earlier consultation, but I acknowledge that there has been considerable unease about that proposal. When I appeared at the Justice 1 Committee, I undertook to look into the charging regime and structure. I can advise Parliament that that work is taking place and that we hope to make a further statement when we reach stage 2.

I am pleased to hear that, as I am concerned about persisting with two very different charging structures for the separate regimes. Once the structures are in place, the difference will become stark. It will not matter whether the Scottish regime is better in other areas, because the fact that it is not better in relation to charging would create unnecessary rancour, which would be unfortunate.

I have outlined my three main areas of concern: cost, unnecessary exemptions and too much power in the hands of ministers. However, those concerns are not the only hurdles to access to information in the bill as introduced. There are one or two smaller matters that I hope the deputy minister, Richard Simpson, will address in his closing speech.

The first such matter might seem to be relatively minor to others: the requirement for the request for information to be made in writing. That has been a matter of concern for some organisations, a number of which have provided good arguments against it. I make a particular plea for a rethink of that provision. In passing, I remind members that I am looking for sponsorship to raise money for the Royal National Institute for the Blind—donations to my office, please. The RNIB is one of the organisations that made a clear point about the difficulty that blind people would have in making an application in writing. I appreciate that there might be administrative issues to resolve, but that is a relatively minor point on which to stick and I hope that there may be some movement on it.

On the matter of vexatious and repeated requests for information, although there might be an argument for a freedom of information equivalent of the vexatious litigant, I recall that vexatious litigants are so designated in our courts fairly reluctantly and only after a great deal of consideration has taken place. Will the minister clarify whether the code of practice will contain guidelines on when and how such requests will be designated? If it will, what are the guidelines likely to contain? The minister will also need to reassure members that all public authorities will observe the same standards, or we will end up with vastly different experiences in different parts of the country.

Many of those who made representations on the bill stressed that organisations that provide public services are not always public bodies, as defined in the bill. I think of, for example, social inclusion partnerships, housing associations and the range of companies that would otherwise be regarded as private but that provide public services. Unison Scotland said that the omission of such organisations from the remit of the bill could

"give rise to a two-tier freedom of information system, in which some providers of public services would be liable to provide information to the recipients of their services … whereas others would not."—[Official Report, Justice 1 Committee, 13 November 2001; c 2787.]

A number of my colleagues wish to make serious points about the effect of what would eventually become a form of commercial confidentiality rule. Given the Executive's avowed intention to increase the use of private finance initiative contracts through a variety of mechanisms, we face the distinct possibility that much of the information that would once have been accessible through the exercise of the rights that are conferred by the bill will not in fact be accessible. When the regime comes into operation, the amount of accessible information will be diminishing rapidly. The issue of commercial confidentiality already gives rise to serious misgivings and a thoroughly confusing understanding of the true picture of what happens in public services—I need only mention the continued debate about the cost of keeping a prisoner in HMP Kilmarnock in comparison with other prisons. The situation will not be helped if that practice continues. Unison made the point in its written evidence that the consultation document indicated that the freedom of information regime should apply to "public service providers". Perhaps the minister could find his way back to that position in preference to the position that is taken up in the bill.

I turn now to the timetable. Today's debate is barely relevant if we have to wait for ever for any form of freedom of information regime to get up and running. As I understand the situation, the UK Freedom of Information Act 2000 will not come into force until January 2005, which is more than four years after the Westminster Parliament approved the legislation. We have known that since 14 November. When I read about the delay in the implementation of the UK legislation, I immediately wrote to the Minister for Justice to seek a firm assurance that the Freedom of Information (Scotland) Bill, once passed, would be implemented speedily. I knew that the minister's party colleagues in Westminster strongly opposed the delay in the implementation of the UK legislation. I wanted some consistency and a guarantee about time scales from the minister, but no such guarantee was forthcoming. In his reply, he gave me an assurance that the legislation would come into force "without undue delay", followed by much hedging about how the timetable was dependent on public authorities having adequate time to prepare and on sufficient time being available to establish the office of the independent Scottish information commissioner. In the space of a few sentences in that letter, the minister managed to water down his commitment to speedy implementation. Although he began by saying that he was

"committed to bringing the legislation into force without undue delay"

he finished by saying that he

"would not wish to take any final decisions"

on the timetable until the commissioner had been appointed.

Reports have appeared about the possibility of the implementation of the bill being delayed until 2005, 2006 or even 2007. The real problem is that, if public authorities are given two years to prepare for implementation, they will take two years, which would be a reasonable timetable. To be frank, public authorities can hardly be taken by surprise by the bill and I am moved to ask what they have been doing over the past two years. However, if they are given three, four or five years, it is in the nature of things that they will take three, four or five years. We all know that that is human nature. I have always held the view that such a delay cannot be what the Minister for Justice wishes, given his long-standing support for legislation on freedom of information. Therefore, I was interested in his comments today, but what he said does not really help the situation. The minister should propose a specific timetable to force the pace; otherwise, I fear that his five-year backstop will end up as a five-year reality.

One final matter requires some comment. I mentioned the UK legislation and the fact that it will usher in a less favourable regime, with the possible exception of costs. The Scottish bill has been drawn up so that it deals specifically with Scottish public authorities. Clearly, UK authorities are dealt with in the UK bill.

On timing, I have indicated that the implementation working group has been in existence for almost a year. We initiated a change to standing orders so that, once the bill passes stage 1, we can get on with making preparations for the appointment of the commissioner.

I will be quite open with the Parliament. There is an issue about whether we should go for what might be described as the big-bang approach—under which every body would come online on one day, as happened in the Republic of Ireland—or whether we should phase in the freedom of information regime in different authorities. No theology is involved in that; it is a practical issue.

I would be interested to hear, perhaps not today but as part of a genuine dialogue, whether Roseanna Cunningham thinks that it would be better to introduce the freedom of information regime all at once or whether it makes some sense that the regime be introduced progressively.

My concern is that if we allow an elastic timetable, the elastic will get stretched. I do not know about anyone else in the chamber, but when I am given a deadline to do something, I do not do it two weeks beforehand. I work to the deadline. Perhaps everyone else in the chamber operates differently, but I rather suspect not.

Your deadline is that you have about one more minute.

The Presiding Officer has reminded me that I must wind up.

The truth of the matter is that two years is not a big-bang approach, but represents a reasonable time scale.

The final matter that I want to highlight is the difference between the way in which the UK and Scottish bills deal with the various authorities to which they apply. There is an anomaly, in that the cross-border public bodies, as defined in the Scotland Act 1998, will not be subject to the Scottish regime even for information that relates to devolved matters. The Scottish Consumer Council flagged up the confusion that is likely to arise if we are not careful. The NUJ had wider concerns about the fact that, in truth, substantial areas of Scotland's governance will fall outside the Scottish regime and under the much-criticised Westminster regime.

That is a matter of concern, but I know how the minister will reply—indeed, he need not rehearse it to the chamber. However, let me say this: when requests for information are made to such bodies on matters that are certainly devolved, I very much hope that those bodies will comply with the spirit of the Scottish bill. They should not refuse to provide information simply because they can. After all, although it may be said that bodies such as the Forestry Commission are cross-border public bodies, such bodies will owe a duty to people in Scotland after the bill ushers in what we hope will be a major culture change.

Notwithstanding those specific concerns, I support the bill. The SNP will whole-heartedly vote for the bill at 5 o'clock today.

Before I call the next speaker, I want to be clear that every member who wishes to take part in the debate has pressed their request-to-speak button. If anyone has not done so, please do so now.

We are, and always have been, in favour of open government. However, in our view, we do not need a sledgehammer to crack a nut; we do not require legislation that will cost many millions of pounds to force the Executive to disclose the information that is in its possession. If the Executive is as committed to freedom of information as Jim Wallace claims, it can publish whatever it wants on a voluntary basis.

Despite Labour's criticisms at the time, when in 1994 we were in a position to disclose, we introduced the "Code of Practice on Access to Government Information". In July 1997, it was announced that an additional 77,500 records had been released by departments and by the Public Records Office over the previous five years.

The Executive needs to answer one simple question: what information is it currently withholding that the bill would bring into the public domain? If the Executive is withholding information, why is it doing so? Jim Wallace has not been forthcoming on that point.

Will the member give way?

I would be happy to give way to Jim Wallace if he wanted to respond to that point.

Furthermore, Jim Wallace has been somewhat vague about the impact that the bill will have.

Will the member give way?

I want to finish the point that I am making.

In response to written parliamentary questions, Jim Wallace has said:

"It is not possible to predict what new information … will be made available as a result of the Freedom of Information (Scotland) Bill."—[Official Report, Written Answers, 19 December 2001; p 433.]

In other words, all this is a costly experiment to tinker with what he calls a culture of secrecy.

I am glad that I have coaxed the minister to his feet.

Perhaps Lord James's problem is that he does not remember the Scott inquiry on arms to Iraq and all the cover-ups that went on during the Conservative Administration. The point is that the information that will be covered by the bill will be available to the citizen by right. At the moment, the citizen does not have a right to information that is withheld by the Government or other public authorities. The code of access that John Major promulgated was welcome as far as it went, but it did not give a right that could be enforced. Lord James has not quite managed to grasp that fundamental difference.

I realise that the minister is trying to promote cultural change. It is not our priority to promote cultural change in such a way. We support open government with flexibility. We do not need a sledgehammer to crack a nut, as such an approach removes the flexibility that accompanied the "Code of Practice on Access to Government Information".

The powers that the bill will give to ministers are somewhat contentious. Paragraph 11 of the committee report outlines the committee's concerns over the power that the bill will give to ministers to designate and remove organisations from the scope of the bill. Section 4 of the bill will allow ministers by statutory instrument to add or remove from schedule 1 bodies to which the provisions of the bill should apply. In essence that means that, although Scottish ministers are at present to be covered by the bill, they could remove themselves by using that provision. That creates an air of uncertainty and obfuscation.

Naturally, the Campaign for Freedom of Information raised concerns about section 4. Maurice Frankel stated:

"That power could be used in effect to exclude almost wholesale from the provisions of the bill bodies that are currently subject to the bill by simply removing from the scope of the bill information relating to various functions."

Will the member accept an intervention?

I want to finish this quote:

"I understand that the purpose of the power is to deal with bodies that cease to exist, but a provision could be written into the bill to the effect that a body is deleted from the schedule when it ceases to exist, without granting the power to ministers to remove organisations as the bill allows."—[Official Report, Justice 1 Committee, 27 November 2001; c 2900-01.]

That is a fully legitimate point. Although the Deputy First Minister might never himself contemplate using such provisions, how do we know what some of his colleagues would do in the future if given half a chance?

Does Lord James accept that the Justice 1 Committee's way of dealing with that would to some extent solve the problem? We suggested that the power should be limited by requiring ministers to consult the commissioner before removing a body from schedule 1. If the committee's suggestion was accepted, it would be politically difficult to remove a body if the commissioner said no.

I am grateful to the member, because it is quite clear that he has highlighted an inadequacy in the bill. If the bill is to proceed any further, we should give particular attention to that area.

On enforcement, the police and others have said that they fear that the bill might have an impact on their work load. When Chief Constable Wilson gave evidence to the Justice 1 Committee, he said:

"We will need to develop a culture of advising people that, notwithstanding the fact that we want them to help us with our inquiries and that identifiable elements may be deleted from any future disclosure, the evidence they provide may find its way into the public domain. One hopes that that will not be counterproductive." [Official Report, Justice 1 Committee, 27 November 2001; c 2913.]

In other words, not only is the minister creating other duties for the police that could take them away from crime prevention and dealing with crime, but victims and witnesses may be less likely to come forward if what they say could become public.

Another of the many problems that has prompted a great deal of concern is the charging regimes, which Roseanna Cunningham dealt with at some length. On considering the submissions, the Executive agreed that it would review the proposed charging regime, under which no charge would be levied if the costs were under £100 and public authorities would be allowed to charge the full marginal costs after the first £100. With a £500 ceiling, that could result in seekers of information paying up to £400.

In his letter of 10 December 2001 to the committee, the Minister for Justice wrote:

"the charging arrangements should neither discourage applicants nor impose unreasonable or limitless burdens on Scottish public authorities."

However, the terms of the bill are not strictly consistent with his assurances. Although the Executive has trumpeted its plans to make government more open and accessible, a charging regime such as that provided for in the bill could in effect price applicants out of the market. I note what the minister said this morning on that point, which we will pursue vigorously if the bill proceeds.

I am grateful to Lord James for acknowledging that we would consider the matter. However, I would be interested to know where, in the bill, he finds the charging regime. The whole point is that it is not in the bill, which is why we have said that we will consider it and introduce proposals at stage 2. The charging regime will be introduced by way of regulation.

I feel that it is very important that such matters be dealt with by Parliament. If the bill proceeds, the system that is put in place should not be the one originally proposed.

When the UK Freedom of Information Bill went through Westminster, Jack Straw had to make a number of concessions—for example, to exempt from disclosure advice given to ministers on the formulation of policy. The further the bill progressed, the more concessions had to be made, as ministers realised the practical implications. We are concerned that the Executive may not yet be fully aware of the consequences of its actions. What is being discovered here is the same as was discovered by the Labour UK Government as its bill progressed: an inflexible regime that is more suited to dealing with appearances than with practicalities. Ponderously legislating in this area will lead to the real danger that we will end up with a restriction of information bill.

This morning, Roseanna Cunningham has highlighted the extent of the exemptions. I believe that the Executive is guilty of trying to impose an inflexible and complex regime when what is required is a flexible system in which each case can be determined on its merits.

The Executive seems to be intent on forcing through unnecessary measures. It is time that it realised that some issues are better left without having a rigid and inflexible legislative regime placed on them. Ideas such as those in the bill—or, indeed, such as banning parents from smacking their children, forcing through a pointless and unnecessary land reform bill that is irrelevant to the real needs of the countryside, and seeking to allow 16 or 17-year-old criminals to escape trial in adult courts—will not solve the many problems of our justice system. Solutions must be found to the growing levels of violent crime and overcrowding in prisons. Instead, all we get is politically correct tinkering.

Will the member give way?

I will give way in just a moment.

The Executive should be trying to make people feel safe and to increase public confidence in our justice system. The police presence should be increased and honesty in sentencing should be delivered. If justice demands the imprisonment of more lawbreakers, that is exactly what the Executive should have the courage and capacity to ensure happens.

I thank the member for giving way and I apologise for dragging him back to the bill. Even if we were to assume that his code would be effective in relation to the Executive, how would he enforce such a provision on local authorities, many of which, of course, he despises, as they are run by the dreaded Labour party?

A framework already exists. I am well aware that ministers are in a position to give directions. Ministers have a certain influence that is perhaps not always seen. I have no doubt that, if ministers are thwarted or frustrated, or if a genuine problem arises, Parliament will act. However, what is being proposed is a sledgehammer to crack a nut.

We support open government, accessibility and accountability, but the bill, like the new Parliament building, apparently has growing cost implications. We must ask whether it is strictly necessary. On behalf of the Scottish electorate, we make the plea that open government should not have to involve extra bureaucracy and should not be a millstone around the neck of the taxpayer. If the bill proceeds further, we will act as guardians of the people's interests, which we will defend with vigour.

In March last year, we discussed the freedom of information principles: the citizen was to be entitled to be given information and, at long last, the citizen was to be empowered and a culture of openness encouraged. At the time, there was much agreement on those principles among members on the nationalist and coalition benches, as there still is. Only the Tories were strongly opposed.

I say to Lord James that I genuinely regret that, even after hearing all the evidence in the Justice 1 Committee, he has not changed his position. I am disappointed and, frankly, I find his views difficult to understand. I cannot begin to see how, in a democratic society, we should be opposed to the proposed legislation. It is all very well for Lord James to say that he wants an open culture, but Jim Wallace made the important point that what we are doing is giving the citizen a right to information. What can possibly be wrong with that?

There will certainly be some disagreement in the chamber on the details of the bill and I for one would not want to minimise the importance of that. There are a number of important issues that should not simply be swept aside. We will need to discuss them with the minister at stage 2 and I will talk briefly about some of them now.

There is legitimate concern that the bill should have proper coverage of the specified institutions. Roseanna Cunningham touched on that issue. As has been pointed out, many bodies that are not strictly speaking public authorities exercise functions of a public nature. I have a great deal of sympathy with Glasgow City Council's statement that

"openness is the price of doing business with the public sector".

It is important to ensure that there is proper coverage. Although organisations can be designated by the minister, the Justice 1 Committee has suggested that we should at least consider whether the bill should contain an appropriate form of words to cover all such bodies. I do not know whether that will be possible, but the principle is important. There should be no gaps.

Although removing certain bodies from the scope of the bill may be a matter of common sense, I repeat what I have said to Lord James before: there should be a statutory obligation to consult the information commissioner before a minister removes a body. That is what the committee has recommended.

Fears exist that there may be ways in which the bill can be prevented from operating properly. I think and hope that such fears are more cynical than justified. Nevertheless, there are fears that public bodies may take unfair advantage of certain provisions in the bill. Roseanna Cunningham has mentioned some of those fears and I will do the same.

One fear is that the bill covers only recorded information. Of course, that is as it must be, but the fear exists that information may deliberately not be recorded in order to avoid disclosure. We must ensure that, at the very least, the commissioner issues guidelines to prevent any abuse in that area.

Another fear is over the fact that requests for information have to be in writing. For a variety of reasons, there clearly has to be some recording of requests. There is also a fear over the idea that costs may be a ground for refusal when a campaign is taking place or when a vexatious request is being made. I have no difficulty with excessive costs being a ground for refusal, but we will again need guidelines to prevent abuse.

Concerns have been raised about the charging scheme. It is certain that cost could always be used as an excuse to thwart the purpose of the bill. The Justice 1 Committee would like to see more details about proposals for a charging scheme before stage 2 is completed.

Another fear is that anything to do with charging will be dealt with by negative instrument. That may seem to be a minor matter, but it was raised by both the Justice 1 Committee and the Subordinate Legislation Committee. We do not think that the proposal is right; we believe that the Parliament should make a positive decision, by affirmative instrument, on anything to do with the cost of provisions.

Interesting ideas have arisen about the lack of sanctions against authorities that fail to comply. What is to be done with authorities that simply ignore the legislation or that may be at least tempted not fully to fulfil their obligations? Like others in the Justice 1 Committee, I am not sure what sanctions are practical, but we have suggested that the commissioner should have the authority—and perhaps even the duty—to name and shame authorities that repeatedly and for no good reason act contrary to the principles of the bill.

Those matters may seem minor, but I do not apologise for raising them. It may be that none of them will ever be a problem. However, raising them highlights the point that there are a number of ways—at least in theory—in which the purpose of the bill could, to some extent, be thwarted. We must constantly ensure that that does not happen. We must be vigilant and we must have proper guidelines.

Other issues, which may seem far more important, have caused division in the Justice 1 Committee—I have no doubt that they will cause division in the Parliament, too. Those issues mainly involve the exemption of information, which is a bone of contention. Everyone accepts that every freedom of information regime must build in exemptions. No reasonable person would ever dispute the need for that—even in a free and open society there must be some form of not giving out information. However, there is a legitimate debate about the extent of exemptions and how they should operate in practice. On the bill, that debate is focused on several specific areas and phrases.

We have considered the phrase "public interest". In many situations, the test will be whether the public interest in disclosing the information is or is not outweighed by the public interest in maintaining the exemption. In other words, where does the greater public interest lie? Does it lie in telling the information or keeping it back? It has been suggested that the bill should attempt to define public interest. The committee in general did not feel that to be appropriate or necessary. Apart from anything else, public interest is a concept that changes with the passage of time.

The commissioner will need to provide guidance on how the test is to be applied. I suspect that in due course the courts will have to tell us the meaning of public interest in the context of the bill. I expect that to work in practice. It will allow for flexibility and changes as time passes. The important point is that the test exists. Therefore, for the exemption—even a class exemption—to apply in any case, other than that of an absolute exemption, it will be necessary to show that the public interest lies in favour of non-disclosure. I think that we can be fairly sure that that will be a substantial and difficult hurdle for any authority.

Like everyone else, I welcome the phrase "substantial prejudice". In many situations—although not in the case of class exemptions—it will be necessary for the authority to show that disclosure would be a substantial prejudice to the protected interest. That is a high standard. We have repeatedly said that it is higher than the UK standard of "prejudice", but some people might not think that distinction important. They might think that it is just one word—a question of semantics. However, the distinction is very important. It is almost always possible for an authority to show some prejudice. It is much more difficult to hide behind the test of substantial prejudice. We should not underestimate how important that change is.

The real argument that we will have—I am looking at my committee colleagues—will be about the phrase "class exemption". That is a difficult issue. Some people will argue that there should be no such thing. The argument that we have heard is that the public interest test and the substantial prejudice test taken together should be sufficient. I am not totally unsympathetic to that view. On most occasions, that system would work quite well in practice. However, on balance, I have come down on the other side and I tend to the view that there is a case to be made for class exemptions in the sort of situations envisaged by the bill.

There are situations where the substantial prejudice test should be the starting point, after which we should apply the public interest test. It is important not to allow people to suggest that a class exemption means that information within that category will never be disclosed. That is not true. The public interest test must still be applied, which is important as far as the citizen is concerned.

Another argument centres on the ministerial veto, which generates a great deal of discussion. My suspicion is that in some ways the point is an artificial one—Christine Grahame is looking at me askance. My suspicion is that, in reality, the argument about the ministerial veto is much less important than the arguments about class exemptions and the public interest. I understand the fear that the ministerial veto will counter the spirit of the bill and over the years might be used by Governments to thwart the bill's intentions. I can see that; I am as cynical as anyone else when it comes to that sort of thing. However, I do not think that it is entirely relevant to our situation.

Experience throughout the world suggests that Governments want to have the comfort of that backstop. If I were sitting in the front row where the ministers sit, I would probably think the same.

Dream on.

We can all dream and be fanciful—do not hurt me any more.

My view is that, although the Government has the comfort of that backstop, the veto would be quite difficult to use in practice. Roseanna Cunningham said that, once Governments have used the veto a couple of times, they will find it easy to get away with doing so. I do not think that it would ever be easy for Governments to get away with it. My colleagues in the SNP and the Conservative party would make that absolutely certain. Political reality would prevent any Government from repeatedly overturning the decision of the independent commissioner. Indeed, if a decision were overturned, the courts would be called on—

Why?

Because the decision would be subject to judicial review.

If it is passed by Parliament, the decision will be upheld.

All things that Government ministers do are passed by Parliament but open to judicial review. The courts would ensure that the veto was being exercised properly and responsibly. I have no doubt that even the veto is open to such a review. I understand why Governments want a veto. I have reservations about it, but I do not think that its existence is of any great practical significance.

What is most important is to ensure that the bill works in practice. After we have finalised the detail of the debates, we must ensure that we have the right spirit to operate the regime. We will need a properly funded commissioner. We must ensure that funds are available for all public authorities to operate the regime in the way that it should be operated. I am not going to apologise if that costs a few bob, as that is not an inappropriate use of a reasonable amount of public funds.

We have suggested that every public authority should have a designated freedom of information officer, who would have a particular role to play in ensuring that the regime is properly implemented. The regime will be robust and will be supported by good legislation. Once we have ironed out the details together, the regime will form an important element of an open and democratic society.

On a point of order. In view of the ruling that the Presiding Officer gave last week on Duncan McNeil's point of order, I draw to your attention the fact that the Deputy First Minister and Minister for Justice did not remain in the chamber to do Mr Jackson, speaking on behalf of the Labour party, the courtesy of listening to his speech. Could we have a ruling reinforcing the point that was made last week?

If Mr McLetchie had been present at the beginning of the debate, he would have heard Mr Wallace give an explanation and an apology for his necessary absence. That point has been covered.

I emphasise that the Presiding Officers will continue to monitor the practice of members who have spoken leaving the chamber before listening to a couple of supplementary speeches. In general we will adhere to the ruling that was made.

I allowed Gordon Jackson an extra minute or so, given that he was sharing his fantasies with us. There is some flexibility today—12 members wish to speak and I expect to call them all. I can allow members up to six minutes for their speeches.

I will not be sharing my fantasies with you, Presiding Officer—you might be a little shocked.

I will try to leave my party-political hat to one side and address the issue as convener of the Justice 1 Committee—it is a bit of a test for me. With one exception, the committee welcomed the bill. I welcome the substantial prejudice test as a higher test. Gordon Jackson explained eloquently—as always—that that is not a minor change of language.

There is a great deal of emphasis in the bill on the role of the Scottish information commissioner, to which I shall return. At the end of his speech, Gordon Jackson raised the important issue of our concerns about proper funding for the independent commissioner and for public authorities so that the bill can operate.

I listened to Lord James Douglas-Hamilton's speech with great interest. He has been a positive contributor to the Justice 1 Committee in many ways, but he is wrong about the bill not being necessary. It is good to have regulatory legislation that does not dictate but which guides on rights and obligations—the right to information and the obligations on public authorities. In due course, with the codes of practice, we will see whether the bill is flawed—as Lord James thinks it is—or otherwise, but the principle behind the bill and the fact that we need a bill are clear. People do not know what their rights are or the obligations and duties of public bodies.

The committee welcomes the intimation by the Minister for Justice of an amendment in response to the recommendation in paragraph 40 of our report that the time scale within which an applicant must apply for a review be extended from 20 days to 40 days.

Class exemptions will be of interest when we get to stage 2. Some Justice 1 Committee members have substantial reservations about class exemptions and wonder whether they simply take a swipe at the bill and undermine it fundamentally.

Others will develop the issue of commercial confidentiality, but I can think of attempts to get information on private prisons that were stymied because the information was said to be commercially confidential, yet it is public money that is used for private prisons.

I say to Gordon Jackson that we will have a little stushie about certificates issued by the First Minister. I do not think that they are as unlikely to be used as he makes out. His argument was interesting and no doubt we will hear it developed, but there are problems. Even the Law Society of Scotland said that if they are not necessary, why have them? It is a belt-and-braces approach. I think that Gordon Jackson asked for an example of when such a certificate would be used. I do not recall hearing an answer to that.

David McLetchie did not seem to be terribly up on this issue. The courts could review the issuing of a certificate by the First Minister. The courts will have the final say, even on a ministerial veto.

I take that point. We will have an interesting debate when we deal with amendments on the issue.

The role of the commissioner is at the heart of the bill. He or she will be crucial to the development of the legislation and to its operation and policing and will make a great deal of difference to how the legislation develops, not just because of the commissioner's status, but because he or she will be the first commissioner to be appointed.

There is concern that there are no sanctions against public bodies that fail to comply with an order to produce information. Section 55 puts a bar on raising an action against a public body. We draw the minister's attention to that. There seems to be an imbalance.

The committee was unanimous in saying that two years was a reasonable time over which to bring the bill into operation.

I will finish quickly. Do I have four minutes?

You have six minutes.

I have six minutes. I can slow down.

I want to address the culture of openness, which is at the heart of the bill. Those of us who are in Parliament have found it hard to detect the fresh breeze of openness blowing through the Parliament's corridors. Parliamentary questions are something of an art form. When one gets to one's fourth supplementary one might begin to smell blood, but it takes a great deal of cunning to get there, because one knows that the civil servants on the other side are working out how to—I love this word—obfuscate with their answers. One gets the wonderful answer, "This information is not held centrally." Where is it held? One has to dig around for it oneself. A culture of openness is essential.

The codes of practice are of great concern. There are many references in the Justice 1 Committee's report to the codes of practice: paragraph 28 states that disabled rights, which Roseanna Cunningham raised in relation to blind or partially sighted persons, should be mentioned in the codes of practice; paragraph 31 mentions the codes of practice in relation to the grounds for refusal to provide information by a public body; paragraph 57 refers to charging; and paragraph 52 relates to vexatious litigants.

I listened carefully to what the Minister for Justice said. I think he said—he will correct me, please, if I am wrong—that we would receive the codes of practice during stage 2. That is not good enough. We require draft codes of practice before the last date for lodging amendments. That is important, because amendments will be lodged if the codes do not address certain issues. It is important that those amendments are tested at stage 2. I would like the Deputy Minister for Justice to give us an exact time for when the codes will be provided, because we are supposed to be launching into stage 2 some time in the coming weeks. On behalf of the committee, I say that we will not be happy to examine a draft code of practice once amendments have been lodged at stage 2 and there is no time to lodge more.

I have nothing further to add.

I welcome the bill and the culture of openness that it will provide. I am disappointed that the Conservatives are not able to support the bill, in particular on the day when IDS—otherwise know as Iain Duncan Smith, the Conservative leader—advises that he will improve public services. Improving public services is about providing information to the public and ensuring that they have access to important public information. Murdo Fraser asked Jim Wallace how many people in his constituency raised the issue of freedom of information. I will give an example from my constituency.

I have mentioned on a number of occasions in the chamber that it has been proposed to site a secure unit at Stobhill hospital. As a local MSP, I requested information. When I did so, I was advised that Greater Glasgow Health Board would provide the information, but that there was no legal requirement for it to do so. That concerns me. The message to quangos is that the Freedom of Information (Scotland) Bill will ensure that never again will a local member of the Scottish Parliament or a local community be told that information will be provided only if there is a legal requirement to do so. The bill will ensure that such information is provided.

Is Paul Martin aware that, according to section 39 of the bill,

"Information is exempt … if its disclosure … would be likely to, endanger the physical or mental health or the safety of an individual."

The rest of the section spells that out in greater detail. Is there any reason to believe that the bill will make such information any more available than it is at present?

I appreciate Lord James's input. He has worked closely with us on the bill. It is unfortunate that he was unable to outline his immediate concerns during stage 1. The point is simple: our local community requested information from Greater Glasgow Health Board concerning the option appraisal exercise that selected Stobhill. That information should be made available to a local member of the Scottish Parliament and to the local community. I do not want to get into a debate about Stobhill; I just want to provide background information.

Roseanna Cunningham touched on the requirement to request information in writing. Many individuals encounter bureaucracy that tells them to request their information in writing. Many members of the community have severe difficulties with that, in particular those who do not have English as their first language or who have difficulty reading and writing. Local authorities and all other authorities that are covered by the bill should be legally obliged to assist those who request information and perhaps to provide designated areas where people can be assisted to fill in the required forms. I hope that the codes of practice, which will be formulated during stages 2 and 3, will ensure that local authorities do that.

I welcome the fact that individuals will no longer be required to provide their reasons for requesting information. People should not be asked their reasons for requesting information. It is their right to access particular information. We do not need to ask their reasons for doing so.

Another issue that the committee raised during stage 1 was that of first ministerial certificates. The NUJ raised a particular concern about the First Minister having the opportunity, in exceptional circumstances, to issue a first ministerial certificate. The bill is clear that if a first ministerial certificate is applied for, that certificate should be brought before the Parliament "as soon as practicable".

The period of time referred to by the phrase "as soon as practicable" was mentioned with the Deputy First Minister. In his introduction today, he did not explain what the period would be. During stage 1 consideration of the bill, we asked the Deputy First Minister to define the period, because the phrase "as soon as practicable" can be used loosely. I would like the Deputy Minister for Justice to address that and to define what the period will be.

On many occasions, the Parliament has been given a difficult time about its effectiveness in local communities. We have shown that we have successfully interrogated all the witnesses who came to the committee at stage 1. We considered every aspect of the bill and that is shown by the responses that we received from the various organisations, such as Friends of the Earth and the Campaign for Freedom of Information Scotland.

I believe that the bill will ensure absolute openness and fairness in Scotland. Such a culture should create an atmosphere where who someone is or whom they know does not matter; it is their right to know.

I note that in the previous debate on freedom of information in the chamber, the Deputy First Minister and Minister for Justice, Mr Jim Wallace, came out with this opening line:

"Openness and accountability are principles that must lie at the heart of government and not least at the heart of our devolved institutions."—[Official Report, 15 March 2001; Vol 11, c 543.]

It is clear that Mr Jim Wallace is a devotee of the Jackie Baillie book of clichés to which I referred last week. The Freedom of Information (Scotland) Bill is apparently yet another Executive priority, but I noticed that it did not feature in the First Minister's motion last week. Indeed, judging by the Sunday Herald report at the weekend, which said that the bill's full implementation could be delayed until 2005—which is, coincidentally, the same as the timetable for the UK legislation—it does not look as though the bill is much of an Executive priority at all any more, despite the minister's protestations today. So much for a Scottish solution.

If the bill has been shoved down the list of priorities, the people of Scotland, aside from a few political anoraks, will not shed many tears. Few regard the bill as a priority for the Deputy First Minister and Minister for Justice at a time when violent crime is on the increase and there are many more problems with our justice system that require his attention, as my colleague Lord James Douglas-Hamilton ably outlined.

In many ways, the bill is a perfect metaphor for the Executive's whole approach, as it appears to achieve something worthy and important, but in reality is a piece of political window-dressing. The concepts of freedom of information and open government are the political equivalents of motherhood and apple pie, which are universally acknowledged to be a good thing. Accordingly, to champion such a cause is not exactly an act of political courage.

Does Mr McLetchie recognise the qualitative difference between the individual citizen asserting a right to information from Government and the kind of shameful teasing out that we had to witness in instances such as the Pergau dam controversy and the Scott inquiry? Ministers of Mr McLetchie's political complexion used every possible device to avoid telling the country's taxpayers how they had managed to squander the country's money.

If I were Mr Fitzpatrick, I would be wary of being so holier than thou about such matters. After all, he supports a Government that has refused a full, open and independent public inquiry into the foot-and-mouth disease outbreak. I also point out to him and Mr Jackson that it is all very well to say that there is a right, but one has to look at how heavily qualified that right is. If the right is heavily qualified by all the exemptions that ring it, it is meaningless and not worthy of the paper on which it is written.

I will move on. Everyone supports the idea of greater freedom of information, but how one brings that about is important. I have said on numerous occasions in the chamber that open government does not depend on the passage of a piece of legislation. If the Executive wants to release information that is in its possession and which relates to matters within its competence, it needs only the political will to do so—there is no other impediment. In order to have freedom of information in this country, we do not need a bill that has 7 parts, 73 sections and three schedules and which will introduce bureaucracy that will cost £5 million a year.

Is not that the key? The issue is not whether the Executive or a Government authority wants to release information, but the right of the citizen to force the Executive to release information. That is the essence of the bill.

The essence of the bill is that one has to compare the right with the qualification. As I pointed out to Mr Fitzpatrick, it is all very well to blow the trumpets and give people a right, but if one qualifies that right so that it becomes meaningless, it is not a right at all. That is the essence of the debate.

Lord James Douglas-Hamilton outlined many of the measures that the previous Conservative Government took to promote freedom of information. That was done largely without the need for the elaborate statutory framework that is under discussion today. From the Executive's standpoint, the problem with that perfectly sensible approach is that it does not make a bold enough statement about the Executive's political virtue. It is not enough for the Executive to do good; it must be seen to have done good and have that acknowledged publicly. Thus, the bill is a classic example of the sanctimonious, holier-than-thou approach to politics that is the trademark of the Liberal Democrats and which is usually laced with a good dose of self-serving hypocrisy.

Let us leave aside the fact that the Executive seems to believe, wrongly, that legislation is the solution to all our problems. The bill will provide an added layer of protection that the Executive knows could be of value to it in some politically embarrassing situation in the future. Without the bill, the decision whether to disclose rests on the minister's judgment. He must stand or fall by that decision and account for it to Parliament. If a freedom of information act had been in place at the time of the Scottish Qualifications Authority inquiry, Mr Galbraith could have used the class exemption that covers information on policy formulation as a shield to protect him from disclosing information to the investigating committees and Parliament. If need be, the Cabinet could have backed that up with a ministerial certificate under section 52 of the Freedom of Information (Scotland) Bill.

Mr Jackson made great play of the fact that ministerial certificates could be the subject of judicial review. However, as Mr Jackson knows well, judicial review does not consider the substance of a decision; it considers how the discretionary power is exercised. Therefore, in this context, I suggest that it is seriously misplaced to put much faith in the concept of judicial review.

The bill should really be called the having-your-cake-and-eating-it bill. The Executive will seek political credit for legislation on freedom of information, while the bill will make it easier to suppress information as a result of its wide-ranging exemptions—brilliant. That is a perfect illustration of new Labour politics, in which style always triumphs over substance. Once again, we have smoke and mirrors. The Liberal Democrats have found in new Labour their perfect partners. We should reject this charade of a bill.

I must confess that, despite Mr McLetchie's tirade, I found it somewhat difficult to get clear what exactly the Conservative viewpoint on the matter is. Are the Conservatives in favour of freedom of information and an open ethos or not?

Yes, we are. If the member had listened, he would have heard the measures that the previous Conservative Government took to promote freedom of information: the Local Government etc (Scotland) Act 1994; the Local Government (Access to Information) Act 1985; the code of practice that was enacted in 1994, which was revised in 1997 and which is the basis of the current code; the Access to Medical Reports Act 1988; and the Access to Health Records Act 1990. We have an excellent record of supporting open government, access to information and freedom of information. There is no need to go any further with this elaborate bill.

I am not sure whether the matter has been clarified. Lord James Douglas-Hamilton and David McLetchie criticised the principle behind the bill and do not seem to recognise the distinction between what an Executive of any description chooses to place in the public domain and what the citizen has the right to demand.

Liberal Democrats welcome the bill, which is a flagship manifesto commitment and a key part of the liberal agenda of the Scottish Executive. That is in stark contrast to the attitude of the Conservatives, whom a commentator recently described as having presided over the most secretive Government in modern history by the end of the Thatcher and Major eras.

I do not want to waste too much time on the Tories. Not for the first time, they are out of step with the public mood and the issues in Scotland. I pay tribute to Jim Wallace for his commitment to the cause, but for which a weaker, Jack Straw-type bill might have been the outcome.

Knowledge is power. The right to knowledge about the activities of those with public power is important. That is one of the key checks and balances on the exercise of public power under our constitutional arrangements in Scotland.

The information that is sought under the bill may frequently be awkward or embarrassing for ministers, civil servants or individuals. The person who seeks the information may be an eccentric with a bee in his bonnet, a man or a woman with a grudge, or an Opposition politician who wants to do down the Government or council of the day. That does not matter. Public information is held by public authorities in trust for and on behalf of the people, from whom they draw their power. It is to the Executive's credit that it is prepared to back the bill, even at the price of creating a rod for its own back.

Like Roseanna Cunningham, I like what is good to be made better. I am not too obsessed by the limited ministerial veto, because its exercise would be a major political event. The minister gave some reassurance on the charging regime—we can leave that for the moment.

I do not like the definition of public authorities, which is different from the definition in the Human Rights Act 1998. A repeatedly amended list of bodies is not obviously based on principle and does not make for clear and accessible law. A huge range of bodies could be included. I defy any list to include them all. For example, I draw social inclusion partnerships to the minister's attention. In many members' experience, they have not been models of accessible or accountable bodies. They answer to several public organisations. The bill does not refer to bodies that are managed by several public bodies.

That is a common situation with public authorities. As one or two other members have said, some public services are provided by public companies and voluntary bodies may provide more. I am not entirely sure that the definition in the bill is particularly apt to deal with voluntary bodies, which do not fit the dimensions of public authorities or public companies, although many of them provide substantial public services.

Much of the information that bodies produce was accessible, but might no longer be so, because of the extension of the PFI concept of provision of services by bodies that are not public bodies in the sense of being Government bodies. That situation is made more complicated by the linked issue of commercial confidentiality. I endorse the call to the minister to have the extent of that more tightly defined.

Like Gordon Jackson, I liked Glasgow City Council's comment that

"openness is the price of doing business with the public sector".

That carries a message for us all, although I must say that that principle has not always been the hallmark of the council's activities.

The key to the bill's success is for those who are subject to the bill to keep their records orderly and accessible and to use modern information technology techniques to archive and arrange records. Bodies should already do that, but they should have resources, advice and training from the Executive. None of that should be an excuse for a lengthy delay in implementation. There is merit in the big-bang approach.

On a slightly different subject, I mention in passing that I have had problems obtaining from the Scottish Executive detailed reports at council level under the Home Energy Conservation Act 1995.

The bill is a key measure and is central to the Parliament's ethos. It is long overdue. Our Presiding Officer, Sir David Steel, is one of a long line of Liberals to have introduced private members' bills on the subject at Westminster, but it falls to Jim Wallace, the Executive and the Parliament to pass such a bill.

I urge the Parliament to pass the bill at stage 1 with the claim that it will make a major difference to the way in which public power is exercised in our country.

Unlike the Tories, the SNP welcomes the bill. Perhaps the horror stories and secrets that have still to surface from the Tories' time in office make them reluctant to support the bill. Lord James Douglas-Hamilton was worried about bodies that have ceased to exist. If the attitudes that he and David McLetchie displayed today are anything to go by, such a fate may come to the Tories sooner than they expect.

The member described the Executive's concern. My concern was with ministers exempting themselves.

The Tories' real concern is their next manifesto, which will say that the Parliament has produced too much legislation, which they will cut out. That and not the bill is their concern.

I will concentrate on environmental issues. I will give practical examples and examine whether the bill will make a difference. The European Union directive on access to information is likely to be revised soon, and the UK Government is expected to ratify the United Nations Aarhus convention. New regulations on environmental information are being developed to accommodate those changes. I understand that the Executive intends to introduce those regulations while the bill goes through Parliament; perhaps Richard Simpson will deal with that point.

It is obvious that it is an ideal time to introduce a bill that is good enough to comply with the EU directive and the Aarhus convention. I hope that the Executive will make the proposed information commissioner responsible for harmonising the time scales for environmental information and other information.

At present, articles 3, 4 and 9 of the Aarhus convention will be incorporated into the bill, but article 5, on the collection and dissemination of environmental information, will not. That is a worry. Concern has been expressed that any pollution register that is introduced in Scotland will not be comprehensive enough to comply with the Aarhus convention. If that is to be addressed, article 5 must be included in the bill. I ask the minister to reflect on that.

How does Richard Simpson intend to ensure that when ministers make promises about the release of information, they stick by those promises and deliver when they said that they would? In March 2000, the "Scottish Climate Change Programme Consultation" was published. On page 10, the Executive promised to produce, with effect from 1998, an annual inventory of Scottish greenhouse gases. Given the importance of those figures and the fact that this is the year of the world summit on sustainable development in Johannesburg, is it not a disgrace that the most recent figures date back to 1998? That is not to say that information does not exist. It has sat on Ross Finnie's desk for months. A Scottish Executive memo that has come into my hands makes it clear that no figures will be available until the end of March at the earliest. Why are those figures not being published? What bad news is being hidden? How will the bill stop such activity?

Perhaps the minister will also tell me how the bill will change the Executive's working practices. On 8 October 2001, I submitted three parliamentary questions about a large number of infraction proceedings that the European Commission had initiated because Scotland was considered to have broken European laws.

Incredibly, it took Jim Wallace until 28 December to tell me that he was not prepared to release the information. It took him a full 81 days to tell me that he would keep the information secret and yet I was able to secure information directly from the European Commission, through the offices of my good friend Ian Hudghton MEP. How is it that Margot Wallström, the European Commissioner for the Environment, is prepared to provide specific information on infraction proceedings involving Scotland, but the minister with responsibility for freedom of information in Scotland is not?

Perhaps in summing up Richard Simpson will be good enough to tell me whether the bill will ensure that the Executive will not be so secretive with such information. There is no point in spouting on about the intent of a bill if it does not deliver a change in culture and practice. There is no doubt that without changing the culture of secrecy, there will be no change. Changes in culture require to be driven by leadership from the top. It is time for the ministers to show such leadership and to ensure that their own practices are an example to others.

PFI and public-private partnership issues have been raised this morning. At present, waste strategies are being implemented in Edinburgh and the Highlands. As those strategies are being undertaken as PPPs, 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.

The Agriculture and Environment Biotechnology Commission report "Crops on Trial", about genetically modified crop trials, was issued in September 2001. It states:

"some of the chosen sites have made it seem that the trials have been conceived and designed in a secretive way, with key players not fully engaged."

The Executive should let us know how the bill will make a difference to the operation of such trials.

When the Justice 1 Committee first began its consideration of the bill, it was obvious that there were different concerns depending on which side of the fence people stood—as potential information providers or information seekers.

On one side, people giving information were anxious about the implications, time and money that are involved in supplying information, especially if inquiries are made unnecessarily or even mischievously—I am reminded of the vast number of parliamentary questions that are asked by some members. However, there seemed to be an unwarranted concern that administrative staff would have to cope with a considerable element of bloody-mindedness.

On the other side of the fence, people seeking information were worried that they would encounter bloody-mindedness from officialdom and that requests for information would be turned down using the excuse that the requests were vexatious, cost too much or were part of a campaign. It was also feared that public authorities would deliberately not record information so that they could dodge the responsibilities of disclosure.

It is crucial that we get away from that mutual suspicion. We need to build a culture and an ethos in which government is open and information seekers behave in a responsible way. There should always be the presumption that information is available. Members of the public, especially those who are in some way disabled and have difficulty in making requests in writing, should have the opportunity to apply in a manner that will result in them getting the information that they seek.

Local authorities need to have information officers who will assist people who request information. I draw the chamber's attention to paragraph 132 in the committee's report. It says:

"The Committee is concerned that the multiplicity of statutory provisions applying to access to information could cause confusion, both for public authorities and for members of the public. The Committee recommends that clear guidance on the application of these statutes should be contained within the codes of practice and that the Commissioner should play a strong role in ensuring that both public authorities and members of the public are clear on which provisions apply to the information they are seeking."

There is no use in having a freedom of information act if ordinary members of the public do not know how to access it or use it.

Much anxiety has been generated by worries about the definition of words such as "vexatious" or "campaign". We must ensure that those definitions are dealt with in the guidelines to the bill. People should not be put unnecessarily into positions of conflict with local authorities. I urge a light hand. Several people seeking information about a local cause for concern is not the same as an aggressive campaign and should not be treated as such.

I have found the Executive's response to such concerns to be helpful, as has the response to representations on the level of charges to be levied. I accept that detailed consultation has been conducted and that it is not possible to please all the people all the time. I recognise that the Executive is committed to finding a solution, which I hope can be put before the Justice 1 Committee in the very near future.

The issues that divide the parties are class exemptions and the ministerial veto. I consider those matters to be reasonable safeguards. It would be politically irresponsible to use them irresponsibly. They are not of concern to the vast number of people who seek information for personal reasons or for research. Ordinary people want a courteous, efficient service, in which openness and an acknowledgement of their right to ask for and receive information is assured. That means that public authorities need to have funds to enable them to put their archives in order and train staff, for example. We have to ensure that when the act comes into force, public authorities are ready and able. However, that should not be an excuse for postponement of implementation. I note the minister's remarks that five years is a backstop and that he hopes to see the act implemented long before that time.

The bill will change the culture of officialdom in our society. The information commissioner has a key role to play in that respect. Although it is the politically active and the campaign groups who make the headlines over freedom of information issues, it is the ordinary people of Scotland who will see the benefit of the bill. I support the principles of the bill.

In common with most other members, I welcome the bill. I will say why it is needed. I refer to a quotation that I included in the speech that I made when we debated the issue last year. I quoted Dr David Clark, the Cabinet minister who was responsible for introducing the freedom of information white paper in the House of Commons. He said:

"there is obsessive secrecy in Britain. Secrecy is almost endemic in senior levels of the civil service".—[Official Report, House of Commons, 7 December 1999; Vol 340, c 739.]

David Clark is hardly a radical—he is a mild man. If he says something such as that, we should not doubt it. He might have gone further, as that same attitude of secrecy applies also to Cabinet ministers.

It is clear that something needs to change. We should not be bashful about that, as we are talking about our information—public information, which is held on behalf of the public, created by the public, paid for by the public and often kept secret by virtue of public funds.

In the context of obsessive secrecy, we should ask whether an act of Parliament is enough. We need to change the culture. Ministers and senior civil servants will need to take proactive initiatives. Those at the top need to lead by example. We do not want a culture of secrecy to be replaced by one that gives the minimum information that is necessary to comply with the terms of the act.

Christine Grahame mentioned parliamentary questions. In some cases, asking questions is a game. Members phrase a question that tries genuinely to seek information. In some cases, officials seem to delight in giving the minimum amount of information that is necessary to comply with the wording of the question. The member receives the reply and refines the question to get a little more information. The game goes on and on until the member gets the information. That approach to giving information has to change. When the Justice and Home Affairs Committee carried out pre-legislative scrutiny while I was convener, one official was of the opinion that parliamentary questions would be subject to the legislation, just like all other information.

The explanatory notes are clear that the bill is a minimum requirement. Bodies do not need to take advantage of all the exemptions that are in the bill. We need to encourage them not to take advantage of those exemptions but to have a culture of giving out as much information as possible. However, in the context of obsessive secrecy, I am worried about some exemptions. The bill is an interesting document for finding out how many organisations in Scotland are public bodies. Public servants, ministers and quangos are listed in vast array. If we assume that all the people working in those bodies are totally reasonable and mild, we could go through the explanatory notes that detail what the exemptions are about and say, "Well, that sounds fair enough. Any reasonable person reading these notes and interpreting them reasonably would not have a problem in giving out information."

However, if some of those people are not totally reasonable and come from a system where there is a culture of obsessive secrecy—as David Clark said—we do not need a crystal ball to see that it would be possible to use some of those exemptions to drive a coach and horses through the intentions of the bill. Section 28, on relations within the United Kingdom, deals with exempt information. It says:

"Information is exempt … if its disclosure under this Act would, or would be likely to, prejudice substantially relations between any administration in the United Kingdom and any other such administration."

That is not an absolute exemption, but I am not convinced by its necessity. If ministers used section 28 to cover their backs, we could not rely on the commissioner to use the public interest test to overturn it.

I cannot see what important matter would be covered by section 28 that is not covered by other exemptions in the bill. There is section 29 on the formulation of policy, section 30 on prejudice to effective public affairs and section 31 on national security. What on earth will fall under section 28 that does not fall under one of the other sections? If we are saying that the section is valid, we are saying that there exist types of communication or information which, if passed between departments of the Scottish Executive, would be open to the public but, if passed between a department of the Scottish Executive and a department of a UK minister, could be exempt. The Scotland Office is not part of this Parliament; it is a department of the UK Government. Is the section specifically to exempt information passing between the Scotland Office and the Parliament? I suspect that that may well be the case.

Call me a paranoid nationalist—[Members: "Paranoid nationalist."] I thank members—that has done my street credibility no end of good. Call me a paranoid nationalist and ask me to lie down in a darkened room, but I cannot for the life of me see why section 28 is needed, unless a political scalp has to be saved now or in future.

The problem with having such broad exemptions is that we will never know whether the public interest is being damaged by the fact that information is not available. We may suspect that the unavailability of a certain piece of information might damage the public interest, but we cannot be sure, because we do not know what that information consists of. We will rely on the commissioner to save us in those circumstances. That is one reason why we should try to get rid of those broad exemptions. I welcome the bill and I hope that the committee will be robust when it goes through it section by section.

I thank Justice 1 Committee members for their contributions to the debate, which are of interest to onlookers such as me. I am pleased that the committee has agreed on the general principles of the bill.

It seems a long time ago now but, as a baby advocate, part of my living was made by turning up at rather quaint rituals in the Court of Session, such as the commission to take evidence. I quite often had to do that in advance of hearings and so on. One thing that offended me every time I did it—certainly at the stage where it became contentious—related to the recovery of medical records. It struck me that everybody and his auntie could have a good old poke through a person's medical records—everybody, that is, but the person whom they concerned. That was usually because a health board or an insurer had decided that it was not in a person's interests to have a good old poke around their medical records and that it might in fact be in their interests to prevent that person from doing that. A person had to get a court order to gain access to their own medical records. As a young advocate, that helped me to put a meal on my children's table, but I do not apologise for being offended at having to turn up in the first place.

Like Maureen Macmillan and Alasdair Morgan, I hope that the bill will mark a radical departure from one style or culture of public service to another. However, a number of contributors to the debate have jaloused quite correctly that the legislation must not be seen in isolation. It is one aspect—perhaps the most central one—of a wider process of reform in government and public service generally.

We have already started the renewal of the constitutional face of this country and the move from subjects to citizens. We have created something that people said we would never manage, although the disappointment brigade—diminished though it is—has lined up willingly all along. There is the Scotland Act 1998, and we have passed into law an act that will still be regarded in 10, 20, 50 or 100 years' time as the single most important change made in the relationship between the citizen and the state: the Human Rights Act 1998. The bill should be seen as a necessary companion to that act.

We should not forget that the Human Rights Act 1998 finds its origins in the ashes of the Holocaust and the recognition, at the end of the 20th century, of the insistent demand that we should use our best endeavours to organise our western democracies so that racists, fascists and others will never be able to use the instruments of democracy to strip the citizen of rights. The use of arbitrary power and the abuse of discretion in even the most well-meaning of societies has been challenged. The closed society is always defeated by the open one. Openness is the most powerful defensive weapon for democracy. It is the natural enemy of arbitrariness and the natural ally in the fight against injustice. As the Deputy First Minister said, information is the currency of an open, democratic society.

On any fair measure, the bill and other measures represent a substantial and hugely important set of reforms that will modernise and regenerate our constitution. Our Prime Minister said that we would change the relationship between government and the people, to give people a better sense of what it means to be a citizen and not a subject. I suspect that it is the attachment of many Conservatives to being a subject that motivates much of the discussion in that party.

Working together with our partners in Scotland we have set about changing the way in which government works and introducing freedom of information legislation. One of the crucial things about the bill—it is the difference between us and those on the right—is that it not only deals with those discretionary decisions that we can already effect by ministerial direction or decision but gives every citizen a legal right of access to information held on them by bodies throughout the public sector. We know—it will be part of the stage 2 debate—that there are variable interests that have to be balanced.

On the one hand we are told that the public interest lies in disclosure and on the other that the individual's interest lies in the privacy of their own information. On the third hand—if that is possible—we are told that the public interest lies in there being no disclosure; sometimes that means that it lies in there never being disclosure, but in many cases it means that it lies in disclosure not being premature. It is the responsibility of the Executive and the Deputy First Minister to make those decisions in the best interests of everyone.

I welcome and echo what Gordon Jackson said on the substantial prejudice formula. I believe that it delivers the principle that harm that is claimed to be caused should be real, actual and of significant substance. One does not need to be a lawyer to know that that is a pretty substantial test. There must be a probability of significant prejudice. I would relish the opportunity to make such an argument against a recalcitrant Executive. David McLetchie shows his lack of interest in taking up such a challenge.

I was going to touch on policy advice, but we may come back to that issue. It is interesting to note the absence from the press gallery of the people who benefit in large part from freedom of information regimes around the world. I hope that, if they are to be able to look in on the processes of government, we will have the opportunity to look in on the processes of an editorial conference.

I have a couple of questions for the Deputy Minister for Justice. We have talked about the change of culture in government. A number of members have made clear their appreciation of the fact that that is essential to the proper working of a freedom of information regime. I would be interested in hearing the minister's views on what we are doing to secure that.

On exemptions, many freedom of information acts around the globe have sunset clauses. I would be interested to learn what consideration has been given to that and what systematic review of exemptions will take place. Are they to be exemptions sine die or should they be constantly reviewed? I would always stand on the side of constant review and of information being disclosed thereafter.

Finally, I declare an interest as a member of the Faculty of Advocates. The Deputy First Minister and Minister for Justice will be aware that we are currently five judges down because of our responsibilities for the Lockerbie appeal. I have no difficulty in anticipating that there will be some volume of work in due course to deal with applications under the Freedom of Information (Scotland) Bill. I would like to know what consideration and discussions have taken place in relation to the implications for judicial resources.

Let us be clear about something from the start. The Scottish Tories support the principle of freedom of information. We are proud of our record in government. My colleagues James Douglas-Hamilton and David McLetchie have already referred to the many measures that we introduced when we were in government to allow open access to information, including the 1994 "Code of Practice on Access to Government Information", which ensured the release of records by Government departments and the Public Record Office.

If we support the principle of freedom of information, why do we not support the Freedom of Information (Scotland) Bill? I shall try to answer that question. Before I came to the Parliament, I practised law, as did many other members. In that profession and while studying for it, I needed to understand the nature of laws. Governments should not legislate just for the sake of it. They should not legislate just to appear to be active and thus fill up the statute book with unnecessary legislation for which there is little or no demand. The poor law students of tomorrow will have an unnecessarily heavy work load if that is what Governments or the Executive do, and the functions of the Government and the Parliament will begin to fall into disrepute.

I am not sure whether we are allowed these days to call the Executive a Government, but Governments should legislate only where there is a clear need for new laws to deal with a new situation that has arisen, to reflect a change in attitudes in society or to right some dreadful wrong. None of those events has occurred in relation to the Freedom of Information (Scotland) Bill. Is information currently being withheld? We trust not. Is it likely to be withheld in the future? There is no reason to believe that that is likely, under this Executive or any future Executive, so where is the pressing need for legislation?

If the Executive wishes to provide freedom of information—as it should—it should just get on with it. It does not need an act of Parliament to say so. The Executive is either committed to open government or it is not. If it is, it does not need legislation to support that commitment.

I am sorry to see that Bruce Crawford has left the chamber. He made an interesting point which, rather unusually, I agreed with in part. He said that if there is to be more freedom of information, we need a change of culture. To an extent, he is probably right. We do not need legislation. If a change of culture has to come, it must come from within the Executive. We do not need legislation such as the bill that is before us, which is hedged around with all sorts of exemptions and get-out clauses for the Executive.

Members of the public, people who come to surgeries and others who contact me raise many different topics, including the state of the health service and transport infrastructure, the lack of police, failures in the justice system and the decline of the rural economy. That list will be familiar to all members. Not a single one of those people has complained to me about the lack of a freedom of information bill or about the need for the Freedom of Information (Scotland) Bill. When I questioned the Deputy First Minister on that point, he confirmed that nobody coming to his surgeries had expressed that concern either. If any other members have had that concern raised at their surgeries, I would be happy to hear from them.

I am interested in what Mr Fraser has to say. Of course people do not turn up to an MSP's surgery calling for a freedom of information act, but they turn up to my surgeries wanting information and asking how they can find out about things. That is what the debate is all about. People may not couch their concerns in the nice, legalistic terms that Mr Fraser obviously prefers, but that does not mean that they are not interested in how they can find information. That is what we are debating today.

It is up to the Executive to provide the information. The point that I am making is that the Freedom of Information (Scotland) Bill will do nothing to progress the cause of freedom of information. The Executive says that it is committed to open government. It is up to the Executive to make that information available if it is not currently being made available.

Will the member accept an intervention?

No. I would like to make some progress.

It does the Parliament no credit to be spending its time discussing matters that are of a minority interest. When people outside see our health service crumbling, our roads in need of improvement, our railways not running, businesses being closed down in rural areas and criminals escaping with lenient sentences, they want to see Parliament addressing those issues. What do they see instead? Endless strategy documents for dealing with this and that; words in place of action; a bill to ban fox hunting; land reform; and freedom of information. It does us no credit whatever.

Will Murdo Fraser give way?

No. There is one further point that I would like to make.

Members have mentioned the fees chargeable for providing information. As that is an important matter, I make no apology for raising it again. Section 9 provides that the fees that may be charged by public bodies will be set by Scottish ministers by regulation. The bill does not say that those fees should be reasonable, nor are Scottish ministers required to consult on the level of those fees. It would therefore be possible for Scottish ministers to set the level of fees at some outrageous figure, in effect preventing access to information. The Executive will say that that is inconceivable and that such a move would defeat the purposes of the bill. However, that right remains. In practice, the public will have no more guaranteed a right to freedom of information, should the bill become law, than they do at present.

That brings me back to where I started. The bill will do precisely nothing to improve access to Government information.

Murdo Fraser said that he has a law degree. Presumably, he recognises the difference between a legal right to information and information being disclosed as a matter of discretion. There is a philosophical difference, a legal difference and a qualitative difference between the two.

It appears that Mr Fitzpatrick was not listening to the point that I was making. The bill is so hedged around with exemptions that it does not actually give any additional rights. On the specific point about fees, if ministers can set fees by regulation, what is to prevent them from setting the fees at a level that would prevent the information being accessed by members of the public? The fact is that the bill is flawed in relation to fees.

In concluding, I reiterate that my party supports freedom of information. We are proud of our record in that respect, but the Freedom of Information (Scotland) Bill will do nothing to make information more freely available. My party will oppose it as an irrelevance to the real concerns of the Scottish people, which the Executive continually fails to address.

Like many of the previous speakers, I welcome the Freedom of Information (Scotland) Bill. I especially welcome the appointment of a commissioner. The Liberal Democrats also welcome many other aspects of the bill, the most obvious of which is the statutory right to the disclosure of information. That is an historic achievement, on which many people will congratulate Jim Wallace, our Scottish leader.

However, like many others, I believe that section 33(1) is too vague. The bill does not allow the commissioner to scrutinise public-private partnerships or private finance initiative projects, on the ground of commercial confidentiality.

All projects that involve PPPs should automatically be open to the commissioner. PPPs are becoming the favoured method of funding most major new projects in the state sector. Unfortunately, PPPs and PFIs have confidentiality clauses so tightly wrapped around them that it is sometimes difficult—even impossible—to find out trading names. I hardly need to tell members that there is an example in the Skye bridge contract. [Interruption.]

I knew that that was coming—it took less than two minutes.

I and others have asked many questions, but I do not think that any answer has given insight into why the public will have to repay £120 million in tolls for a bridge that cost £15 million. To paraphrase Winston Churchill, never in the history of public-private finance initiatives will so much be owed by so many to so few.

The number of times that I have been quoted the commercial confidentiality agreement between the Scottish Executive and the Bank of America as a reason not to answer Skye bridge questions is unreasonable. Such official obstruction should be stamped out. We should not allow the Administration to hide behind the veil of commercial confidentiality—we hear that quoted daily—and to opt out of accountability to the electorate.

My constituents on Skye have been the victims of one of the most disturbing tales of official collusion and incompetence ever disclosed in Scotland. I am still determined that that wrong should be righted and am just as determined to ensure that commercial confidentiality does not muzzle this country.

I have just read a book by George Monbiot on the corporate state. He writes at length about the Skye bridge contract and says that it has

"more in common with the development of hydroelectric dams in Brazil than with the scrupulous detachment we have chosen to believe that surrounds infrastructure projects in Britain."

Several members have quoted Glasgow City Council. I am not prone to quoting that august body, but it recently gave evidence to the Justice 1 Committee that was fair, appropriate and correct. It said that, in respect of any PPP contracts entered into, the guiding principle should be that

"openness and transparency is the price of doing business with the public sector".

That is an apt statement.

Schemes that are to be built for the public and part funded with public money should be open enough to ensure that the beneficiaries are not mainly the shareholders in the private sector.

A strong commissioner is a way of ensuring public confidence in any new PPP schemes. The commissioner must investigate issues of commercial confidentiality on behalf of the public to determine value for money and fair play. It is reasonable to expect that any company that is willing to go into a contract with the public sector must also be willing to provide information for the public. Without strict controls on commercial confidentiality in the Freedom of Information (Scotland) Bill, public-private partnerships such as that involved in the infamous Skye bridge contract, will continue to circumvent democracy and disfranchise the electorate.

I commend the Justice 1 Committee for its thorough report and for using its imagination in calling the controversial David Shayler to give evidence. The relaying of his experiences with MI5 and MI6 raised the stakes of the debate. Shayler said:

"We have a history in this culture—much more so than in other western democracies—of … denying people access to information."—[Official Report, Justice 1 Committee, 21 Nov 2001; c 2852.]

No one would disagree with that.

I was disappointed that the intervention by my colleague Mr Fitzpatrick did not receive a more accurate reply from David McLetchie. The point about the Scott inquiry was missed. The shame is that innocent men lay in prison while Government ministers issued themselves public interest immunity certificates and hid behind them. For anyone to defend that is shameful.

It is also astonishing that a Conservative party lawyer does not understand the difference between a right in law and no right in law. Ordinary people understand that, whatever we are doing, we are giving ordinary citizens a right in law.

Of course I understand the difference between a right in law and no right in law. My point was that the bill is so hedged with exemptions and get-out clauses for the Executive that it does virtually nothing to increase the rights of individuals.

With the greatest respect, I do not believe the member. If that is his position, he should propose amendments to the bill rather than oppose it in its entirety.

Passing the bill will provide a potential to move with the times. A true culture of openness can be created. This is an age in which citizens have high expectations of public and private authorities in respect of information and answers that they want and that affect their lives.

The bill will benefit a range of individuals, organisations and campaigners—even journalists. The emphasis, however, should be on benefiting ordinary Scots—and communities—who wish to exercise their right to access meaningful information promptly and accurately with minimum cost.

When the passing of the bill is publicised, the minister should consider publishing a public information leaflet that shows the type of information that might be accessed, how it can be accessed and details of any costs. The Justice 1 Committee is right to spend time on the charging regime.

There are issues for public authorities in respect of the costs of providing a freedom of information regime, but we should focus on the potential costs for individuals and ensure that those are not a barrier.

The Justice 1 Committee is also right to recommend that the affirmative rather than the negative procedure should be adopted for changes to fees. There would be greater scrutiny with a minister present during the affirmative procedure. The committee would be invited to recommend any regulations to Parliament. With the negative procedure, regulations more or less go through on the nod.

When a person requests information, how do they know if the collation of that information will cost more or less than £100? There should be some way of notifying a person during the 20-day period if they will incur any charge—before information is supplied.

I note the practical difficulties in treating citizens from commercial entities who request information. I wonder if it would be possible to consider a deterrent for companies that do not reveal that they are requesting information for their own use. It is ironic that, in an openness regime, any body or organisation may seek to hide the fact that they are making use of a freedom of information regime and avoiding greater charges by requesting information through a single person. I have sympathy with the Convention of Scottish Local Authorities' view that there should be a mechanism to prevent undue consumption of scarce resources where information is for commercial gain.

I whole-heartedly support John Farquhar Munro's comments on the breadth of organisations that should be covered by the bill and would like an answer from ministers on the public bodies that should respond to the freedom of information regime. PPPs and voluntary regimes will be covered by the bill only if designated by ministers. It would be a very one-sided freedom of information regime if it were restricted to public bodies and did not cover those with public funds.

We have a good foundation on which to build a new information culture: 129 MSPs already question the Executive, public authorities and many other organisations of behalf of citizens. We are continuing in the same way. I detect a sea change, even in the much-criticised Crown Office and in the attitude of law officers in providing detailed and helpful information about prosecutions.

We can go further still. The vast majority of institutions have embraced the devolution settlement and provided great amounts of information to MSPs and their constituents. The bill will progress the work started under devolution, and I say well done to the ministers and to the Justice 1 Committee for its report.

The debate has been entertaining and informative and I intend to bring one or two new points to it.

A desire to keep information is always an expression of someone's self-interest—generally someone in public service. Given that, David McLetchie missed the point. At present, all information is retained unless a decision is taken to release it. We are moving to a new start, whereby information will be released unless it is decided to keep it secret and in the system. Such decisions will be accountable, auditable and kept under review.

The present system and its practical implications harm individuals, companies, the national interest and, on occasions, democracy. I will give a particularly ironic example that extends back to the 1960s and 1970s and which came to light in 1997. To be fair to my Labour colleagues, that happened because of the Labour party's commitment to freedom of information, which the SNP has shared for a long time. My example relates to what appears to be a technical subject, but it is important in the modern world. The subject is cryptography. Although that statement woke up almost no members, cryptography is important technology that protects information. It is at the heart of the modern economic miracle, which came through electronics, and it underpins the security of nations. Cryptography secures a person's transactions from an automated teller machine as much as it secures a multinational company that makes a large electronic payment for a multibillion-pound oil rig.

Where did the technology come from? The conventional history begins with Whitfield Diffie and his colleagues Hellman and Merkle, who developed the asymmetric key idea. They developed something that, curiously enough, Mary, Queen of Scots used to converse with her lovers. However, there is no time for that story, even in an extended debate.

That is a shame.

I will tell Gordon Jackson the story over a coffee after the debate.

In 1977, the mathematicians Rivest, Shamir and Adleman apparently developed the mathematics that made the idea possible. That was a case of Americans leading the way with technology that is integral to the modern world and which protects our commercial and security interests. The reality was very different and became apparent only at a conference in November 1997. Government Communications Headquarters developed the technology, but, because of the culture of secrecy, the world became aware of that only in 1997. James Ellis, who was employed at GCHQ, developed the public key concept in 1969; Clifford Cocks developed the mathematics in 1973; and in 1974, Malcolm Williamson completed the development with a key distribution system. That commercial asset is worth not hundreds, thousands, millions, or even billions of pounds; over the life of the technology, it will be worth—

Zillions.

No, the next figure is probably trillions of pounds. A culture of secrecy denied this country the rights to that technology. It is thanks only to Phil Zimmerman and the different climate in the States that the matter was brought into the public domain.

I have a point about costs. In the Justice 1 Committee's deliberations on the bill there is reference to the Data Protection Act 1984, which was a way of securing and protecting data. The act gave citizens the first statutory right of access to data and introduced a charging mechanism. Typically, the cost was around £10. The interesting thing is that, even with that quite modest charge, the access requests to large commercial companies with large databases are numbered in single figures.

I suggest that in considering the bill we take a genuinely radical step and make public access by individuals free and charge only for commercial access. If it is necessary to protect the integrity of the inquiry system, let us make it a criminal offence for a commercial operation to purport to be an individual.

Let me give John Farquhar Munro a little glimmer of hope. The parliamentary draftsmen may have opened a little crack on PFI. I refer to section 6(2)(a)(ii) of the bill, which states that a company is wholly owned by the Scottish ministers if it has no members except

"persons acting on behalf of the Scottish Ministers or of such companies."

We can take that to mean that if a PFI company is established solely for one contract—and I am thinking of BEAR Scotland Ltd in particular—it is acting wholly and exclusively on behalf of the Scottish Executive. For the purposes of the bill, it is therefore a public body. I do not imagine that that is what was intended, but perhaps we could brush up on that little part of the bill and ensure that that is its practical effect.

I am cognisant of the answer that the Deputy Minister for Enterprise, Transport and Lifelong Learning gave to Andrew Wilson on 14 January in response to his question about Amey Highways Ltd and BEAR Scotland Ltd. There is a willingness to be open on that subject.

In conclusion, Jim Wallace said that sensitive information must be protected. I am going to be radical and say, "No, Jim, it is precisely—in the generally understood sense of the word ‘sensitive'—sensitive information that must be available." We are currently denied the sensitive information.

As my colleague Alasdair Morgan indicated, we are debating a change of law, but we must also bring with that a change of culture and practice.

I say to Murdo Fraser that the mindset of Sir Humphrey Appleby is alive and well. I think that Sir Humphrey was quoting Francis Bacon when he said that he who hath a secret to keep must keep it secret that he hath a secret to keep.

We move to wind-up speeches. We have about six minutes in hand so members may take a minute beyond their set time if they so wish.

I am a member of the Justice 1 Committee and listened to most of the evidence that was given on the subject. Because of illness, I was not there when the committee was drawing up its report, so I do not claim any credit for it, but I think that it is excellent and covers the main issues well.

As my colleagues have said, the Liberal Democrats have a long history of commitment to freedom of information. In that, we are totally hostile to the Conservative attitude.

Jim Wallace has a great commitment to the subject and he and those politicians and civil servants who are in favour of openness have done an excellent job on the bill. It is much better than the UK Freedom of Information Act 2000.

However, compromises have still had to be made with the large number of politicians and civil servants who are in favour of secrecy. All organisations are intrinsically in favour of secrecy. Governments, political parties and any other organisations have embarrassments to conceal. There is a strong force in favour of secrecy. The bill includes compromises between the openness people and the secrecy people.

Part of the Parliament's duty is to push the bill further. We are here to make government as open as possible. This is a great opportunity and we can make the bill even better. I do not think that the Parliament is bound by the compromises between the openness brigade and the secrecy brigade. I look forward to improvements being made to the bill.

In preparation for the debate, I watched three of my videotapes of "Yes Minister" programmes last night. I was assured by a former Cabinet minister that the programme actually understated the awfulness of the civil service.

A group of archivists raised strongly with me a particular point that has not been mentioned very much in the debate. We do not realise in how bad a state the archives and records of many councils, quangos and public bodies are. At the moment, there is no strict law to ensure that people keep information, which means that the situation is patchy. For example, I have been told that, in Glasgow, there are very good records of what we would now regard as social work issues dating back to the poor laws. On the other hand, a few years ago, when there was great concern in Edinburgh about the molestation of children in residential homes that the council had run a few years before, it was found that no records had been kept and that no one was able to tell the police the names of the staff and the inmates of those homes. The situation changes from area to area. Indeed, I have been assured that, as we speak, water records are being destroyed in the changeover from three water boards to one.

We must ensure that records exist and that organisations have a proper system for cataloguing them. I have been assured that many do not have such systems. Librarians are industriously drawing up rules on how people should borrow books when many of the books that people think are there are not there at all and, indeed, no one actually knows what books are there. As a result, we must support organisations in financial and other ways to ensure that they keep all their records and organise them properly.

I support the comments made by Robert Brown, John Farquhar Munro and many other members on the various issues raised in the debate. For example, I am greatly concerned by the issue of class exemptions. Although I do not know whether we can entirely eliminate such exemptions and simply judge each issue on the basis of content, we should go as far as possible in that direction.

Furthermore, commercial organisations and voluntary and community bodies should be open to scrutiny when they undertake public work and spend public money. Those of us with council and parliamentary experience know that the excuse of commercial confidentiality is used constantly to block legitimate concerns about expenditure.

I am also concerned by the idea that an organisation can refuse to say whether information exists at all. I cannot understand why that particular section has been included; such a provision is straight out of Kafka or Stalin, not 21st century Scotland. Although it might be legitimate for a council to refuse to provide sensitive information about an on-going public inquiry, it would be absolutely ludicrous for it to refuse to tell someone whether it had carried out a particular survey.

We must also extend control over the factual basis for advice to civil servants. I also cannot understand why the bill considers campaigns to be a bad thing. All of us in the chamber are campaigning animals and it is absolute nonsense for the bill to stipulate that if two or three people write in on the same issue they do not have to receive a reply. That provision will have to be changed.

The bill is a great step forward. The Conservatives feel that we do not need the bill; if it were up to them, the 30 mph speed limit would be abolished and instead we would simply have a letter that read: "It would be very nice if people could possibly drive no faster than 30 mph." Unless we have a law that enshrines people's rights, we will not achieve what we want. This issue is very important. I look forward to improving the bill, although it represents a great advance as it stands.

I want to say from the outset that we are not arguing that the bill is particularly harmful. We do not doubt the good intentions of those who have introduced it. However, we think that it is basically unnecessary.

Surely the purpose of any legislation laid before the Parliament is to make life better for the people of Scotland. Is anyone seriously suggesting that the bill will materially change the lives of the people whom we represent? In the debate, only Brian Fitzpatrick and Stewart Stevenson gave any examples of how that might happen; Jim Wallace certainly could not. Indeed, my colleague David McLetchie lodged a written question last December about the information that would be more readily available if the bill were passed, to which Jim Wallace replied:

"It is not possible to predict what new information … will be made available as a result of the Freedom of Information (Scotland) Bill."—[Official Report, Written Answers, 19 December 2001; p 433.]

That answer encapsulates the entire issue.

Stewart Stevenson mentioned cryptology, which at first made me think that he had an unhealthy interest in the occult; instead he took us on a trip into the esoteric. We would really require further information on the issue, and I look forward to obtaining it from Mr Stevenson in due course.

If the member cares to show me his diary, I will be happy to arrange that.

My diary is certainly not shrouded in black.

Brian Fitzpatrick raised the genuine issue of medical records and mentioned how, in the course of Court of Session actions, he had to obtain a court certificate to ensure the release of certain medical information. Although his point is valid, he might still have a problem in that respect under section 38 of the bill. It is arguable that, under the terms of the new legislation, such information might still not be made readily available.

Despite Robert Brown's claims that the bill will make a major difference, no one has been able to say what that major difference will be.

I like the way that the logical fallacy has become part of the Conservatives' debating style. The Deputy First Minister was not wrong to suggest that no one starts off with a mindset when contemplating the types of information that might be released under the bill.

It might assist Bill Aitken and his party if I list some of the information that we want. We want education authorities to explain better how they apply placing and admission criteria. We want health authorities to provide better details on how they allocate resources for different treatments. We want the Scottish Prison Service to provide information on the performance of different regimes. We want hospitals and general practitioners to explain better how they prioritise their waiting times and waiting lists. Finally, we want national health service trusts and health boards to provide information on the provision of services. Furthermore, we do not want them to provide such information on the basis that they are doing the citizen a favour; we want them to answer the question as a matter of right for taxpayers and citizens. Those are some examples, if the member is looking for them.

All those examples are perfectly worthy. However, there is no need to legislate for them; they could be more simply dealt with through direction. Furthermore, Mr Fitzpatrick should ask his colleagues in the Executive to open up a bit more themselves. If that happened, we would have fewer parliamentary replies stating that particular information is not held centrally or cannot be obtained without incurring costs that are disproportionate to the issue in question. That is the sort of issue that Mr Fitzpatrick should be addressing.

The fact is that the bill cannot be justified.

Will the member give way?

No, I must move on. The thought process behind the bill is quite simple. It has been shown repeatedly that the Executive is unable to cope with the real issues that affect the people of Scotland, and because it cannot deal with the fact that the NHS is a shambles and that violent crime is on the rise, it devotes its time more and more to trivia.

Of course, the system that will be introduced is a bureaucratic nightmare. It might be argued that, just as everything in a free democracy should be permitted unless it is specifically prohibited, people should have access to all information unless there is a specific reason for not letting them have it. That is only correct. However, is not it ironic that 15 sections in the bill deal with the right to information, whereas 17 sections deal with exemptions? Does not that indicate the complexity of the matter and why we should have avoided legislation?

I compliment Mr Aitken and the other Tory speakers on using the same arguments that Ann Widdecombe used when she spoke against the Freedom of Information Act 2000 at its second reading at Westminster. The difference between Ann Widdecombe and the Tories in this chamber is that Ann Widdecombe opposes hunting with hounds, whereas they support it.

That is scarcely a relevant point.

In the original documentation that was published, which was entitled "An Open Scotland", the cost of the regime to the public was estimated at between £9 million and £12.5 million. Jim Wallace has again been specifically vague but, in answer to a parliamentary question from David Mundell, he said that there was no intention to make other funding available to Scottish local authorities, on the basis that the machinery was already largely in place to enable authorities to do what they were being asked to do. That is a sound argument; however, it is also an argument against the necessity of the bill.

We have heard some interesting speeches. When Roseanna Cunningham intervened on Murdo Fraser, she made the valid point that, although people are not coming to MSPs' surgeries in massive numbers to demand the bill, they are coming to ask for information. That happens to us all. However, that information should be available in any event and, if it is not available, that should be a matter of direction by the Executive.

Other aspects have been touched on. Murdo Fraser highlighted the cost to the individual who applies for the information. It would be unfortunate if the Executive's efforts to make information more freely available were thwarted by its thinking simultaneously that charges can be made for information that is freely available at the moment. If, for example, local authorities can—quite properly—charge for planning inquiries, they might realistically expect to be able to charge for other information. The bill would allow them to charge for information that would normally be provided without charge.

We believe that the bill is totally unworkable in many respects and that it is unnecessary. Once again, it is a classic example of an impotent Executive trying to deal with trivia rather than facing the real issues that confront the people of Scotland today.

Most members have been constructive in welcoming the general principles of the bill, with the exception of the Conservatives. The Justice 1 Committee report and the comments that have been made by other members today make it clear that a number of changes must be made to the bill to improve it further. Openness and transparency are important features in any modern, mature democracy. The fact that the bill goes further than the Westminster legislation shows that the Scottish Parliament has demonstrated a greater willingness to enhance its democratic credentials.

The Tories' position in the debate has been strange. In his opening comments, Lord James stated that the Conservatives

"support open government with flexibility."

I see no reason why the Conservatives would not support the bill, if they wanted to put their words into action. Murdo Fraser said that the Conservatives support the right of the individual. However, it appears that they do not support the individual's right to information.

As members have suggested, an ingrained culture of secrecy exists in many of our public authorities. It is easy for the Conservatives to suggest that the authorities should just make the information public in the first place. The reality is that there is a culture of secrecy, which must be addressed. The best way to do that is through the bill. Unfortunately, some public authorities seem to think that any form of external inquiry is to be viewed with suspicion.

We should consider freedom of information regimes in other countries. One of the greatest challenges that other countries have faced in implementing their regimes is the breaking-down of a culture of secrecy. Last year, the Information Commissioner of Canada visited Scotland and delivered a lecture, during which he highlighted the fact that, in the 10 to 15 years since Canada introduced its own freedom of information regime, the Government had continually had to address the need for a culture change among public authorities. The Scottish freedom of information commissioner will have an important role in promoting the bill when it is enacted and in changing that culture.

I turn to the list of public authorities in the bill. Concern has been expressed that there are areas or organisations to which the bill will not apply. Schedule 1 lists several public authorities that, according to section 5(2)(a),

"appear to the Scottish Ministers to exercise functions of a public nature".

As several members have pointed out, public services are increasingly being provided by private companies. Examples that Unison Scotland cited to the Justice 1 Committee included the provision of services under social inclusion partnerships and housing associations, and, as John Farquhar Munro said, there is the PPP for the Skye bridge. Premier Prison Services is running Kilmarnock prison at considerable cost to the taxpayer but will not be covered by the bill. In his intervention on Bill Aitken, Brian Fitzpatrick said that he was keen to ensure that the Prison Service was made more open and transparent. Unfortunately, the Scottish Prison Service is not listed in the bill as a public authority. That is to be regretted.

The committee's report recognises the fact that not all public authorities can be listed. However, with the increasing dependency on private companies to provide public services, there must be a level playing field in the application of the bill's provisions. Unison Scotland highlighted the fact that there is a danger that we could create a two-tier freedom of information system if that issue is not addressed. Gordon Jackson referred to the evidence that was provided by Glasgow City Council, that

"openness and transparency is the price of doing business with the public sector".

I hope that the Executive will address that matter at stage 2.

I turn to the provisions for making an application for action under the bill. In his opening speech, the Minister for Justice stated that the application process was user-friendly. I am not sure whether that is true. The evidence that the committee received suggested that there are problems with it. Unison Scotland stated that, if all applications have to be made in writing, the bill

"could discriminate against people whose first language is not English".—[Official Report, Justice 1 Committee, 13 November 2001; c 2792.]

Furthermore, the Disability Rights Commission pointed out that the bill could marginalise disabled people who have difficulty in communicating through writing. No one should be marginalised by the provisions of the bill. We also stress that the public authorities, which must act under the provisions of the bill, have an important role to play in enabling people who may have difficulty in making an application to do so, to ensure that they have an equal opportunity to gain the benefits that the bill provides. I hope that the Executive will acknowledge the Justice 1 Committee's recommendation on the issue of applications. If we do not address that issue, the mechanism will not be as user-friendly as Jim Wallace intends it to be.

I turn to the issue of exemptions, which members have suggested is probably one of the more contentious aspects of the bill. The Justice 1 Committee is aware of division on the issue among its members. Maurice Frankel, representing the Campaign for Freedom of Information, stated:

"the number of exemptions in the bill is potentially overwhelming."—[Official Report, Justice 1 Committee, 27 November 2001; c 2892.]

I recognise his point. There is the content exemption, the class exemption and the absolute exemption, and those are topped off by the ministerial veto. The question about exemptions is how they affect the balance of the bill, which should be framed for disclosure as opposed to non-disclosure. I am concerned that some of the exemptions in the bill as introduced could be used by some public authorities to try to prevent information from being placed in the public domain.

We all accept the content exemption. It is to be welcomed, because it applies the public interest test. The class exemption, however, has to be questioned. Gordon Jackson said that he had some difficulty with its application, in that it will apply where it is considered that disclosure would normally result in substantial prejudice—it is assumed that the harm test has already been satisfied. In my view, the class exemption is surplus to requirements and, given that a robust harm test and a public interest test are contained in the bill, I see no requirement for the class exemption. I believe that the Executive should seek to have it removed.

Another vexed issue is that of the ministerial veto that the bill contains. The very idea that the First Minister can overturn an enforcement notice that has been issued by the information commissioner is, I believe, unjustified, and I do not think that it was justified by the evidence given to the Justice 1 Committee. I recognise that ministers view it purely as a backstop and consider that it will be rarely used. As Roseanna Cunningham highlighted in her speech, the Law Society of Scotland asked why the veto is there in the first place if it is not intended to be depended upon.

The ministerial veto also alters the bill's balance in the direction of non-disclosure, which is to be regretted. There is a need at stage 2 to shift the balance back in favour of disclosure. That may be achieved by removing class exemptions and the ministerial veto.

Roseanna Cunningham also referred to the NUJ's written evidence. It asked:

"If harm cannot be demonstrated to the Scottish Information Commissioner"—

or to the court—

"can any harm really exist",

other, perhaps, than political discomfort?

Several members referred to the fact that, if a certificate is issued by the First Minister, it could be subject to judicial review. Should the information commissioner choose to issue a certificate for the disclosure of information, that too could be challenged through a judicial review. I believe that we should follow that option, because it alters the balance back in favour of disclosure and protects the public's right to information. If the Executive is determined to keep the ministerial veto in the bill, I hope that, at the very least, it will accept the Justice 1 Committee's recommendation about laying the ministerial certificate before Parliament.

Notwithstanding the limitations of the bill as introduced and the issues that require to be addressed, I support the general principles of the bill.

I am pleased to be closing the debate. I believe that the Freedom of Information (Scotland) Bill, when passed, will have a fundamental impact on the Scottish public and the public authorities that serve them. I feel privileged to be involved in such an important and welcome piece of proposed legislation.

The bill has to be seen in the context of a desire on the part of the Executive for better public services, so as to put the citizen, the consumer, the client and the patient at the centre of the process, which gives them rights.

Later I will address the argument that the Conservatives have consistently made against the bill.

If we want there to be public confidence in our public authorities, we must have accountability. If we want accountability, we must have openness. The bill will go some way towards achieving that. It will produce real accountability and openness that are not based on discretionary codes or non-statutory regimes.

Today we have had a very thorough debate, in which many issues have been raised and some well-argued points have been made. In the time available, I will respond to as many of those as I can.

When closing the debate on freedom of information that took place on 15 March last year, Iain Gray said that this was

"the right bill at the right time."—[Official Report, 15 March 2001; Vol 11, c 549.]

The Minister for Justice has repeated that, and I share his view. We introduced the right bill because we gave it a great deal of thought. We considered the needs of the users, the public, and of the implementers, the public authorities. Achieving a balance between those needs was not easy. We also considered overseas experience and, importantly, we listened. We carried out two consultations, one on principles and one on the draft bill. The Executive met a number of interested parties and sought their views. We were subject to comprehensive scrutiny by the Justice 1 Committee and other committees of the Parliament, a task that they undertook with great thoroughness.

I have listened to today's debate and will try to deal with as many of the points that have been made as possible. A point was made about the requirement for requests for information to be made in writing and about the simplicity of the access system that the bill will put in place. We believe that we have come up with a fairly simple access system, but I accept that the requirement for requests to be made in writing may create difficulties for ethnic minorities with languages other than English and for the disabled. We will consider that issue in relation to the codes of practice and examine closely how it ties in with the Adults with Incapacity (Scotland) Act 2000.

Christine Grahame made a point about the draft codes of practice. We have indicated to the Justice 1 Committee—I hope that that information has reached it—that we will provide draft working versions of the two codes to support stage 2 scrutiny of the bill. We will provide those drafts by 30 January, the date for which they were requested. However, I want to put on record that the codes are drafts and that the Scottish information commissioner's input to the final codes will be very important. The independent commissioner's role is crucial to the bill. Sometimes the juxtaposition of that role with the other provisions of the bill is not given enough emphasis.

A number of members raised the issue of charging. A considerable number of those who responded to the first consultation expressed support for the second option contained in the consultation document "An Open Scotland", and we listened to what they had to say. Nevertheless, the Deputy First Minister has indicated that he is willing to re-examine the charging regime. I have registered the points that were made by Gordon Jackson and Roseanna Cunningham, as well as Bill Aitken's point that we must not create new blocks for citizens who are seeking access to information and that the charging regime needs to be reconsidered. That is one of the few points that I can take on board from the Conservatives.

We note the comments made by the Subordinate Legislation Committee and will consider whether the charging and upper threshold limits should be subject to an affirmative regulation procedure.

Alasdair Morgan raised the issue of relations within the UK and the transfer of information between the UK Government and the Scottish Executive. Is he really suggesting that information should be disclosed if it passes between UK and Scottish departments, even if that substantially prejudiced relations between the Scottish Executive and the other devolved Administrations, and was contrary to the public interest? Disclosure of such information will be subject to the two tests that have been outlined. The Scottish information commissioner will decide whether in such cases the criterion of substantial prejudice has been met.

The issue of class exemptions has been raised. Exemptions are a common feature of freedom of information regimes around the world. Members should bear in mind the fact that exemptions do not require that information be withheld or prohibit its disclosure: they merely provide a means by which an authority can withhold information. Only if that authority can justify its decision to the independent commissioner can the information in fact be withheld. The commissioner's role is fundamental. Class exemptions act as a sort of road warning sign, pointing out to people that when information relates to a particular area it is likely that the commissioner will agree that it should be withheld. However, the power of decision will rest with the commissioner.

The bill contains only a limited number of class exemptions. They apply to categories of information that are invariably sensitive and not appropriate for disclosure, or to areas where disclosure would harm the processes that are contained within the exemption concerned. For example, the disclosure of Cabinet minutes would substantially harm the frankness and candour of discussions on the formulation of Government policy. Most class-based exemptions also require the consideration of the public interest test. Therefore, the majority of class exemptions can be claimed to withhold information only where that would be in the public interest.

Brian Fitzpatrick referred to the removal of exemptions, such as the 30-year period for the release of Government papers, the 60-year period for information about honours and royal matters and the 100-year period for census information. We will not revise the 100-year period for the release of information on the census. In fact, I note that we have just started the publication of information from the 1901 census. We began that work on 3 December last year and are continuing with it. I believe that an answer to a written parliamentary question on the matter will be published later.

The code of practice that is to be issued under section 60 will deal with campaigns, or aggregation of requests, which were mentioned by Maureen Macmillan and others. The fact that information has been requested by a campaign does not mean that the authority can ignore the request. However, authorities do not need to respond to requests for every single piece of information. The aggregation element is addressed in section 12. I think that we have the right balance, but we can revisit the issue at stage 2.

Michael Matheson raised the issue of ministerial certificates in his comprehensive and well-delivered summary of the debate. We believe that we should retain the ministerial certificate. The important point is that, unlike the procedure in the Irish legislation—which our colleagues in the SNP are fond of quoting—under which ministerial certificates are issued by individual ministers before the commissioner makes a decision, only the First Minister will be able to issue the certificate under the Scottish legislation. In addition, the First Minister must consult his entire Cabinet.

In New Zealand, the practice moved from the situation in which certificates were issued by ministers before the commissioner's decision to one in which certificates were issued after the commissioner's decision.

I will give way to Alasdair Morgan after I have finished my point.

The effect of that change was that, although many certificates were issued up to 1987, subsequently not a single certificate has been issued. We believe that we need to retain that power, as issues may arise that would lead the First Minister to want to overrule the commissioner. I refer to issues that may not be linked to national security but that are nevertheless important, such as crime or terrorist activity. I think that it is understood that such certificates will be issued only in exceptional circumstances. It is also almost certain that such matters will be debated in Parliament.

Does Alasdair Morgan still wish to intervene?

I will be brief. I take it that the deputy minister's interpretation of section 52(2) is that the First Minister must consult all other members of the Executive. Of course, that does not necessarily mean that he must obtain their consent, or even a majority of their votes.

We considered whether such decisions should made collectively by the Cabinet, but procedural difficulties with that approach arose—the Executive did not create those difficulties. However, in effect, a Cabinet decision will be made. That is our interpretation of that provision, which I am happy to put on the record.

I will move on, unless Michael Matheson wishes to intervene.

The deputy minister referred to the need for the ministerial veto in matters of national security or terrorism. However, such situations would be covered by absolute exemptions. I still have not heard a reason why the bill must contain a ministerial veto.

I also mentioned the example of crime. I repeat that there are elements that mean that we need to retain that power. The commissioner, as an independent individual, may make decisions that are not regarded as being appropriate. I am sure that we will debate the ministerial veto during stage 2.

I turn to a question that was raised by a number of members, including John Farquhar Munro—who sticks to his last in relation to the Skye bridge—Robert Brown and Gordon Jackson. Michael Matheson quoted Glasgow City Council's evidence that openness should be

"the price of doing business with the public sector".

That is a good statement. The important point is that the test of substantial prejudice must apply. The Executive's intention and hope is that the majority of PPP/PFI contracts will be published. For example, I can advise members that the substantial part of the contract for HMP Kilmarnock will be published. The elements that will be retained will be very small.

I want to correct one thing that Michael Matheson said. The Scottish Prison Service is listed in the bill, so he got that point wrong. I agree with him that it is important that the SPS is listed, but that is the case.

Elaine Bailey, who is the managing director of Premier Custodial Group Ltd, in her evidence to the Justice 1 Committee, agreed that the committee members could see the full contract in private. Why did she write back to the committee on 20 December 2001—some two months after giving that evidence—stating that the offer has been withdrawn?

I understand that Elaine Bailey went beyond the remit that she was given on that occasion. That is why she wrote back. I accept that there was a mistake, but the intention is that the Kilmarnock contract will be substantially published. The overwhelming majority of the PFI-equivalent contracts in America are now published. As people become more confident about the process, I think that the amount of information that it is appropriate to put into the public arena will increase.

As the member for Kilmarnock and Loudoun, I am delighted with the statement that the minister has made. How widely will that information be available? Will the information have to be sought out, which is what many of us have had to do during the past two and a half years?

The hope is that the information will be made available.

Bruce Crawford gave us some interesting information about environmental regulations and the Aarhus convention. We are preparing material on that and I will write to him separately about that matter. On the infraction proceedings, the Commission's approach is evolving and, as that is quite a technical area, I will get back to Bruce Crawford on that.

I do not have much time left, but I want to conclude by mentioning the issue of training and support, which was raised by Maureen Macmillan and others. She and Pauline McNeill also asked about public information. Those important issues are being addressed by the implementation group, which has been working for a year.

That leads me on to mention our intentions on timetabling. The fact that we will move swiftly to appoint a commissioner after the bill passes stage 1, and the fact that the implementation group has been working for a year, should, I hope, give some good feeling to Roseanna Cunningham—not something that I am in the habit of doing. [Interruption.] I will stop on that point, but I hope that members will recognise how keen we are to bring the legislation into effect quickly. Five years is an absolute backstop so that we can give a total commitment.

Several members mentioned the need to change the culture, but I do not have time to deal with that.

In the two minutes that remain, I want to deal quickly with the Conservatives, who have been consistent—consistently stuck not in the 20th but in the 19th century. The Conservatives have opposed: the incorporation of the European convention on human rights, which allows citizens in Scotland to challenge matters in the Scottish courts; the Maastricht treaty, which gave workers rights; and the minimum wage—to which they are now converted—which also gave workers rights. They have indicated that they will oppose the Executive's proposals on smacking, which are to give children rights.

The Conservatives' view is consistent and holds to what Brian Fitzpatrick called the use of arbitrary power. They believe that the authorities in power should give away power only if absolutely required. We believe that citizens' rights are fundamental and that they should not be doled out by people whose time has long since gone.

I am afraid that the Presiding Officer is signalling that I am already beyond my time, but I am sure that Lord James will pursue that with me at stage 2.

Indeed, I look forward to the stage 2 consideration, when we will need to consider each amendment carefully. I say that because the bill is an intricate whole and a fabric that is woven of many parts. If we unstitch one part, we may unstitch substantial parts of the bill. We need to ensure that the balances that we have sought are maintained. The bill is robust and I believe that the Scottish people will be proud of it. I urge members to support it.