Plenary, 23 Jun 1999

Meeting date: Wednesday, June 23, 1999

Official Report 511KB pdf

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Freedom of Information

The first item of business this afternoon is a statement by the Deputy First Minister on freedom of information. He will take questions at the end of the statement and there should, therefore, be no interventions. This item of business will last for half an hour.

With permission, Sir David, I wish to outline to members how the Executive intends to take forward the partnership commitment to the early introduction of an effective freedom of information regime.

This is a subject that I and many other members of this Parliament feel very strongly about. On my election as a member of the UK Parliament for Orkney and Shetland in 1983, I was asked what private member's bill I would like to promote if I were lucky in the ballot. I said—16 years ago— that I would like to introduce a freedom of information bill, but I never had any luck in the ballot.

Fortunately, with the establishment of the Scottish Parliament, an effective Scottish freedom of information regime no longer depends on luck. Scotland has the opportunity to adopt a distinctive approach to openness and to create a freedom of information regime that is appropriate to a modern and open Government as we approach the 21st century. We are committed to creating open government in Scotland.

The partnership agreement says that the Scottish Executive intends to put in place an effective freedom of information regime. Let me make absolutely clear what we mean by that. We mean a Scottish freedom of information bill that is introduced in this Parliament, scrutinised by this Parliament, and enacted at the hand of this Parliament.

The bill will enshrine in primary legislation the people's right to have access to information. It is important that people recognise that we are serious about this commitment. By introducing primary legislation to this Parliament we will leave no one in any doubt.

We attach great importance to an open and inclusive approach to policy development and we shall consult widely as we develop our policy on freedom of information. We welcome members' views and I expect that a committee of the Parliament will take a close interest in the development of policy in this area. We are committed to open and wide consultation but we also need to ensure that the process is driven forward. I propose to strike that balance by initiating consultation in the autumn. Based on the results of that consultation, we will introduce primary legislation as soon as possible.

The Executive has moved swiftly on the commitment to freedom of information in the partnership agreement—today's commitment to legislation demonstrates that—but we need to ensure that effective arrangements are in place from 1 July. I therefore announce today that, for the first time ever, Scotland will be covered by a specifically Scottish non-statutory code of practice on access to Scottish Executive information. It will ensure that arrangements for access to information are in place from 1 July. Without that non-statutory code as an interim measure, Scotland would be worse off than the rest of the UK, and I will not allow that to happen. Copies of the code are being made available to members today and can be collected from the chamber reference point.

Our commitment to an effective, statutory, freedom of information regime is not made lightly. We recognise that freedom of information is a complex area of public policy that has taxed successive UK Governments. Members will be aware of some of the criticisms that greeted the publication last month of the draft UK freedom of information bill for consultation.

In developing our approach to freedom of information, we need to strike a careful balance between the public's right to know and public authorities' reasonable expectation of confidentiality for sensitive information. We also need to ensure that the necessary exchange of information with Westminster and with the devolved administrations in Northern Ireland and Wales can operate effectively. That arrangement is necessary to support the continued supply of information from Whitehall to the Scottish Executive.

In formulating our way forward, we will take account of the draft UK bill and take stock of the comments and criticisms of it that arise during parliamentary scrutiny at Westminster.

Effective freedom of information and openness is as much about culture as it is about legislation. We are therefore committed to fostering and maintaining an appropriate culture of openness throughout this Administration.

The code of practice will preserve existing rights of access and afford the public and public bodies a degree of continuity. The code contains a strong presumption of openness. It makes clear that information should be disclosed unless the harm that is likely to arise from disclosure would outweigh the public interest in making the

information available.

The code is intended to support policy making and the democratic process by providing access to the information that is provided to ministers and to the facts and analyses which form the basis for the consideration of proposed policy.

From the outset, the code will be effectively policed by the Scottish parliamentary commissioner for administration. The Scottish commissioner will submit reports to Parliament, as will the Executive, on the operation of the code. Members will refer to the Scottish commissioner complaints from the public that a Scottish public authority has failed to operate adequately the provisions of the code.

I intend that the code and the role of the Scottish commissioner will be well publicised. The code will be made available widely in printed form and on the internet. I understand that the commissioner will distribute a leaflet that will set out his role and the ways in which a member of the public may submit a complaint to him through a member of the Parliament.

I have written today to the bodies covered by the code, including the Scottish Prison Service, the Student Awards Agency for Scotland, Scottish Homes and the Scottish Environment Protection Agency, to reinforce the presumption of openness and to encourage them to continue to foster a culture of openness in their dealings with the public. I shall take a close interest in the operation of the code.

The Executive is committed to running an open Administration, to consulting widely as we develop freedom of information policy for Scotland, to a non-statutory code from day one, and—most important—to an effective freedom of information act.

This is an effective and ambitious package of measures that will lead to increased openness in the governing of Scotland. At the heart of the legislation we bring to the Parliament will be a presumption of openness. What has to be, and is increasingly being, recognised is that better scrutiny leads to better government. By making information more available we empower people— we do not weaken government.

I look forward to working with members of this Parliament and others as the Executive puts into place Scotland's first ever freedom of information act.

The Deputy First Minister will now take questions on his statement. Members who wish to ask questions should press their request buttons.

Thank you, Mr Presiding Officer. I listened with interest to what the minister said, but I have some concerns, not least of which are those that relate to the unnecessary delay. Can he be more open about his time scale for the introduction of legislation? I fear that we are missing a great opportunity.

Can the minister elaborate on the precise strength of the code of conduct, because it does not appear to usher in any change at all? He said that the code will

"preserve existing rights of access".

That phraseology suggests that the code will make no real change, which will be a matter of great concern. Will the minister clarify that aspect of the code? It appears not to contain any legal rights or responsibilities—unless I have missed something fundamental.

Will the minister expand on the time scale involved and explain why he feels it necessary effectively to wait until Westminster's deliberations are over? That is a rather unfortunate precedent to set. Will he clarify precisely what strength the code of conduct will have when it comes to implementation? What remedies will people have if the code is breached? I fear that the minister's statement is sending out a signal that not much will change.

I am grateful to Ms Cunningham for her remarks. On timing, she would be one of the first to criticise the Executive if we said that we are going full steam ahead to legislate without consultation. It has been widely expected of this Parliament that we will consult widely. The UK draft bill will be part of that process, but by no means the sole part. Ms Cunningham is a member of the Justice and Home Affairs Committee, which I hope—with individual members and other people who are interested in the issue—will take an active interest in examining the consultation paper that will be published in the autumn.

As I said in my statement, it is a question of striking a balance between ensuring that there is proper and effective consultation and ensuring that we make steady progress. I am not committing myself to a particular time scale, but the fact that we have made a statement today, that a consultation paper will be published after the summer recess, that we are inviting consultation and that we will try to maintain progress and drive this forward, is a sign of good intent and a willingness to consult properly. If there is any issue that requires openness and consultation, surely it is freedom of information.

On the strength of the code of conduct, Ms Cunningham is right to say that I said in my statement that this is a continuity of the existing code for rights of access to information. We are not making any secret of that. The code has been redrafted to take account of the fact that we will be

different after 1 July. Without it, there would be a gap, and Scotland would be less well served than the rest of the United Kingdom in terms of access to public information. I do not think that anyone here wants that.

It is important that, rather than undertaking the almost impossible task of drafting from scratch in a short time, we maintain what is in place and look forward to a statutory regime. That is what is different—we are making a commitment to a statutory freedom of information regime. That takes things forward. Sometimes I fear that the current access code is one of the country's best- kept secrets. Perhaps today's statement and the attendant publicity will mean that people are better informed of what legislation already exists to enable them to get access to information.

I thank the minister for his courtesy in making an advance copy of his statement available to us, which facilitates comment on it. I would be grateful for his response to three points.

First, why do we need a separate freedom of information act in Scotland, as distinct from a single UK measure based on a common set of principles? A single UK measure would mean that whatever agency or Government department our citizens are dealing with, whether in relation to a reserved or a devolved matter, they have access to information on the basis of a single statutory and legislative code. I fear that different regimes north and south of the border will make it difficult to resolve the access provisions that apply to information in matters where there is an interface between the UK Government and Scottish Office departments. Will we work on the principle that access is governed by the most liberal or the most restrictive regime?

Secondly, I am grateful for the minister's response to Ms Cunningham's question, confirming that the code to which he refers is not a novel feature, but simply replicates what was put in place by the previous UK Government.

Thirdly, will Mr Wallace and his colleagues have discussions with the Convention of Scottish Local Authorities with a view to introducing a similar code for local government? That should happen in advance of the primary legislation to which he referred, which we will discuss in Parliament. Such a code should build on the existing local government access to information regime that was established in 1985.

Is the minister aware that there are concerns about access to information in local government— particularly in relation to bodies funded by local government—where the information that has been made available to the public has not been all that is desired? There have been a number of instances of disastrous funding arrangements with partnership initiatives here in Lothian that freer and more accessible information would have avoided.

A separate freedom of information regime is part of the devolution settlement. It was first foreshadowed by the white paper and was implemented by one of the orders that we considered only a matter of weeks ago. It was considered appropriate—I believe that it is appropriate—that as a Parliament we devise our own regime to deal with the range of our devolved responsibilities.

Only one regime will apply to a particular public body. There might have been some problem if cross-border bodies had tried to operate under two different regimes, but the Westminster regime will apply to them. Requests from the public will be dealt with under whichever regime is applicable.

Mr McLetchie pointed out that local government already operates under a statutory access to information regime and that there is dissatisfaction about its effectiveness. I am sure that it could be examined as part of the consultation process. The health service has different arrangements. Examining the effectiveness of other current statutory regimes and codes would be a very helpful part of the consultation exercise.

The minister will be aware of the growing concern across Scotland that the Crown Office is failing to use the full force of the law in cases where death is caused by dangerous driving. For example, some of my constituents have been denied access to police reports into fatal accidents—even when members of their family have been killed. Can he guarantee that such police files, along with all other official files and reports on accidents and accident inquiries, will be available under the freedom of information legislation?

I want to take the opportunity to clarify one point: the code of practice that we are discussing does not apply to the police, because the police are not subject to the jurisdiction of the parliamentary commissioner for administration. It is fair to say that it might be very worthwhile to consult on the inclusion of the police in a freedom of information regime. That is the situation in other countries that operate statutory regimes. There was a strong recommendation in the Macpherson report on the Stephen Lawrence case that the police should be covered by a statutory regime. That will be an important part of the consultation.

On behalf of Liberal Democrat members, I welcome the minister's statement. It is particularly important that he has made clear that the code will be introduced because, if it is not, there will be no

such facility after 1 July. Does he hope to use the concepts of prejudice and harm that are mentioned in the code—emphasising the tighter test of harm—in the draft legislation?

That will be a key part of the consultation. Mr Robson will note that the harm test features fairly prominently in the code. It is also important to note that whether the test of harm or of prejudice is used, the overriding test is one of the public interest. Members will see that part II of the code, which deals with reasons for confidentiality, states that

"the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available."

Openness is the presumption and the ultimate test is that of public interest.

Is the minister aware that the Westminster draft bill on freedom of information has not received a warm response from people who, over many years, have campaigned for such a bill? It is hoped that the Scottish Parliament can do much better than Westminster.

Security and defence are reserved matters, but there are many incidents in Scotland that arise from defence and security operations. Does the minister envisage that the freedom of information bill that will be passed by this Parliament— hopefully—will be able to shed any light on matters such as the tragic crash of the Chinook helicopter on the Mull of Kintyre or the operations of the killer Trident submarines in Scottish territorial waters?

I am sorry to disappoint Mr Canavan, but there is a clear division between the freedom of information bill regime that will be passed by this Parliament, which will apply to matters that are the responsibility of the Scottish Parliament, and the matters that are reserved. As he knows, defence is not a responsibility of the Parliament, so it will continue to operate under freedom of information legislation passed by the Westminster Parliament.

The minister mentioned consultation. I am sure he is aware that there was extensive consultation on the Westminster bill. Were any organisations in Scotland that have a keen interest in the subject not included in that consultation exercise? The danger of such an open-ended consultation process is that it might delay the introduction of a bill in the Scottish Parliament.

I assure Mr Matheson that there will not be open-ended consultation. We want to make progress and drive the legislation through. However, I am sure that he and other members expect us to have a proper period of consultation, during which many of the bodies to which he referred can make a contribution. It is only right that they should have that opportunity to contribute to a distinctively Scottish freedom of information act.

Does not the minister's statement suggest that this bill will be much more watered down than that which he envisaged some 16 years ago? Are the practicalities of government now registering with him? He referred to the code's ensuring that Scotland was no worse off than the rest of the UK. Is not this a Westminster-led bill?

I think I am correct in saying that when I advocated a freedom of information bill in 1983 it was a criminal offence to tell anyone where the Post Office Tower in London was, and it was a criminal offence for the head gardener at the Royal Botanic Gardens in Inverleith to tell anyone in which order he watered the plants. We have come a considerable way since then in changing the culture in government.

I assure Mr Gallie that this will be a Scottish bill. It will be for this Parliament to pass it, to move amendments to it, and to consider it. It clearly makes sense to consider the freedom of information legislation that is now in draft form at Westminster, the comments that have been made on it and the parliamentary scrutiny that it has undergone. However, it will be for this Parliament and its committees to devise the arrangements that we believe are suitable for Scottish circumstances.

I welcome the minister's speedy statement and would like to ask two questions. First, are the hospital boards and hospital trusts in Scotland among those to whom he has written? Secondly, will the freedom of information regime include not just information, but specific documents that can be recovered from the various public authorities that have been referred to?

No, it does not include the health boards or health trusts, which are covered by a separate code and, in some cases, by separate arrangements for access to medical records. I am aware that several members have already raised the question of access to information in the health service. As I said in my reply to Mr McLetchie, it would be quite proper to examine the effectiveness of the codes and the freedom of information regime that applies in that service.

My answer to Mr Brown's second question is that the supply of specific documents is not required, although there will undoubtedly be occasions on which specific documents are supplied. However, the regime requires the supply

of information rather than the provision of specific documents.

In the interests of freedom of information and of the public whom we serve, will members of this Parliament be given the same rights of parliamentary privilege as members at Westminster when they want to raise individual cases here?

That might be a question to which you, Sir David, are better able to supply an answer. I understand that that is the case, but I would not want to commit myself firmly without taking advice.

My first question to the Deputy First Minister concerns the code of conduct as a significant advance in public access to information. Will it apply equally to information on BSE and genetically modified foods, or are those areas the preserve of the UK Parliament?

My second question is this: if a dispute were to arise between the UK and Scottish Parliaments over what information should be released, will some form of arbiter or group be appointed to adjudicate? I accept that it is unlikely that such a difference will arise, but it is not impossible.

I would also like to know whether the Deputy First Minister believes that what he is proposing is in some ways inferior to what Mr Jack Straw, the Home Secretary, is proposing. Does he, as a lawyer, think that if there are differences, people may come from south of the border to the Scottish courts, and vice versa?

My last point has been raised many times over the years. I fought the election on 6 May for the constituency in which Rudolf Hess landed 58 years ago. Some local historians still feel that there are papers concerning the flight of Rudolf Hess that are being retained into the 21st century. Will access to that information be dealt with by the Scottish Parliament or will the UK Government again remain supreme?

I will take those questions in reverse order.

Many cases are covered by existing statute. The Rudolf Hess case almost certainly falls under a reserved power. If it is any consolation to John Young, I can tell him that I have had cause in the past week to write to the Secretary of State for Defence about the sinking off Orkney in 1916 of HMS Hampshire, about which there is still some concern among relatives of those who lost their lives.

On the interface between Westminster and the Scottish Parliament, information on issues that are dealt with by the Scottish Parliament as devolved matters will be governed by the freedom of information regime that we agree here. Information that belongs—if I may use that word—to the Westminster Government will be governed by the rules that apply to the UK.

It does not take long to work out that if there were a perception that one could come to Scotland to get information that was the property—as it were—of the Westminster Government and it could not be obtained in England, the supply of information might dry up. Common sense has to be applied in such circumstances.

I am sorry, Mr Young, we are out of time.

I have taken the Deputy First Minister's hint in response to Margaret Ewing's question about parliamentary privilege and will circulate a detailed note in the business bulletin on the extent of privilege in this chamber, as it is slightly different from that at Westminster.