Chamber and committees

I am really asking what you mean and what work you are involved in. I do not want to make a presumption. There is obviously a wide range of other agencies. Perhaps you could talk about some of the work that you are involved in. If you want to talk about the Nook, that would be fine.

Yes—you have spoken about that.

If there is any further information that you want to give us in writing, that would be helpful. I know that we have an issue with time.

I appreciate that we do not have a huge amount of time.

It would be helpful if you could give us a great deal of detail on the retention issue, which is concerning both in the fact that the number of police officers is dropping and in the recent statistics showing that a disproportionate number of quite young police officers and officers with not many years’ service seem to have left. It would be helpful to get an understanding of that over a wider period and of whether that has changed over the past 10 or 20 years, say. If you can provide that detail when you write, it would be very useful.

I wanted to ask mainly about the work that is happening with individuals and agencies other than the NHS. A great deal of the evidence today has related to the national health service and the transfer of care—and to what happens in hospital or in similar settings. Many of the scenarios that the police have to deal with are clearly not in those settings. Could you say a little bit more about what work is being done now? Are other agencies or individuals working to ensure that the police can transfer individuals outside those settings? There have been a number of mentions of other agencies and other partners.

I appreciate that we do not have a huge amount of time.

In broad terms, what proportion of the types of scenarios that we are talking about are non-NHS—that is, scenarios in which the NHS is not the right place—but are scenarios in which the police should still be able to hand over? I am asking that to get an understanding, because so much of the evidence has been about the NHS.

Thank you.

It is almost 25 years since the passing of the Freedom of Information (Scotland) Act 2002, also known as FOISA. My bill is not a criticism of that act, which has been a great success. Indeed, the same voices who campaigned for that legislation have been campaigning for the bill, such as the Campaign for Freedom of Information in Scotland and the late Jim Wallace—a prominent freedom of information campaigner who took FOISA through the Scottish Parliament.

In May 2020, as a result of campaigning for freedom of information reform along the lines that are being proposed today, the Standards, Procedures and Public Appointments Committee produced a report with a range of recommendations and concluded that, although the 2002 act had significantly improved transparency, an urgent update of the law was needed. The provisions of the current bill were based on that committee report, the recommendations of all four Scottish Information Commissioners who have held that post since the 2002 act was passed, the consultation on the proposal for the bill and previous consultations.

The bill reflects proposals from freedom of information campaigners, FOI practitioners and the Information Commissioners. The bill would close loopholes, strengthen the power of the Information Commissioner and address the reduction in freedom of information coverage that has taken place since the 2002 act. Significant work has been carried out with the Information Commissioner, his policy and legal experts and others to ensure that the bill is workable.

I understand the concerns that have been raised about parliamentary time, but my concern is that no proposals have been brought forward by the Scottish Government since the 2020 committee report. I fear that, if the bill fails to pass stage 1 today, we will have the same debate again in five years’ time, still with no proposals forthcoming from Scottish ministers.

Whether it is in local government, justice, transport or social care, private companies have increasingly become major providers of public services, but they are not covered by current freedom of information laws. For example, when ferry services are publicly owned and funded, they are covered by freedom of information legislation, but that is not the case when they are publicly funded but run by private providers such as Serco NorthLink Ferries. Council house issues were previously subject to freedom of information but, when council houses were subject to stock transfer to bodies such as housing associations, that was no longer the case. It took 13 years of campaigning before information rights were reinstated by the current minister.

In most other areas, rights that have been lost over the past 25 years still have not been reinstated. The Public Audit and Post-legislative Scrutiny Committee in the previous session of Parliament and the Standards, Procedures and Public Appointments Committee, in its stage 1 report on the bill, were right to conclude that

“legislation is now needed to update the freedom of information regime in Scotland”

and that the Scottish Government has been slow to exercise its powers under the 2002 act.

The Scottish Government has been asked to introduce legislation over a number of sessions of Parliament, but it has failed to do so, which is why I introduced this member’s bill. I was approached in 2021, when I was first elected to the Parliament, and asked whether I would proceed if the Government would not.

I welcome the Standards, Procedures and Public Appointments Committee’s support for some of the bill’s provisions. It supported a requirement for the Scottish Government to consider proposals from the Scottish Information Commissioner to extend the number of bodies that need to comply with freedom of information law.

The decision that is before the Parliament today is on the general principles of the bill. [Interruption.] The Parliament should send a clear message—the strongest message—that it supports legislative reform of the freedom of information regime. That means clearly supporting the general principles of the bill today.

This Parliament was founded on the principles of accountability, openness and transparency, and the bill gives us the opportunity to build on those principles today. I have outlined the process that led to the provisions that are in the bill that we are considering, which I believe is the correct starting point.

I thank the committee for the scrutiny that it undertook in preparing its stage 1 report, all the stakeholders who engaged with the process, Carole Ewart from the Campaign for Freedom of Information in Scotland and those in my office for their work on the bill. I also thank the Scottish Information Commissioner, his team and all the former information commissioners who engaged with the process.

The only issue that is before us today is whether we agree with the general principles of the bill at stage 1. I have listened carefully to members’ speeches, and there seems to be a consensus that the public’s right to information is important, and that there must be accountability on public service delivery and transparency on the use of public money.

However, we must recognise that our current freedom of information regime has been in place for more than two decades and that the public, campaigners, organisations and Government have all experienced how it works, where it works well and what needs to change. That is why the current Information Commissioner and his predecessors support the bill. That is why the bill enjoys the support of so many organisations, and it is why so much of the evidence that was submitted, including from trade unions, care home relative campaigners and the third sector, supported the bill.

I will respond to some of the points that were made about specific provisions. On new designations, I agree with Daniel Johnson that this debate is also about the kind of Parliament that we want to have. It would not have been appropriate to put more detail on the process for designation in the bill, as that would be a matter for Parliament’s standing orders, but we must say that the role of this Parliament is to hold the Scottish Government to account. Given that the Scottish Government has failed for more than two decades to keep freedom of information where it should be, it is appropriate that more power is given to the Parliament and its committees.

The idea of creating a freedom of information officer role came from freedom of information officers. I know that, like his predecessor, the minister attends the annual events that many freedom of information officers go to, so he will have heard them explain their belief that the creation of such a role would give them the power to enforce freedom of information in their own organisations. Many of them are data protection officers, and they believe that the bill, which mirrors the provision of the data protection regime, would enable them to get their organisations to comply with the law.

Section 18, which would create a new criminal offence, is designed to deal with serious situations. The Information Commissioner has said that it would enable them to do their job better, where information is deliberately destroyed with the intent to avoid the law.

The vast majority of the public support the key principles of the bill, which is why we must agree to its general principles today. The way in which public services are delivered has changed significantly since the 2002 act. Multinationals such as Serco, G4S and Mitie are now providing public services and in receipt of public funding, and we no longer have the information rights that we had in relation to those services in 2002. If those services were still being provided by Government, they would be subject to freedom of information laws.

The Scottish ministers have consistently failed to come forward with legislative proposals in this area. When I met the minister on Thursday, he said, yet again, that, in his view, legislative change was not needed.

As I outlined in my opening speech, the committee has indicated its support for many of the provisions in the bill. I am disappointed by the amendment to the motion that has been lodged. I believe that the Parliament should send a very clear message that we will vote—

I fully agree with that.

The committee backed bringing companies that are jointly owned by the Scottish Government and other bodies into the scope of freedom of information law and recognised that the First Minister’s veto power is unnecessary. Of course, the First Minister has refused to rule out using the veto in relation to various current court cases. The committee recognised the benefit of other provisions in the bill, such as those on statutory freedom of information officers and greater enforcement powers for the Information Commissioner.

The bill includes provisions that were recommended by the Public Audit and Post-legislative Scrutiny Committee in the previous session of Parliament on a legal duty for proactive publication. That is in line with best international practice, was recommended by all four people who have held the post of Information Commissioner and is in accordance with codes of practice that are provided by the Information Commissioner.

The bill includes a new offence of destroying records with the intent to prevent disclosure before a freedom of information request is made. That provision mirrors existing offences that relate to the period after a freedom of information request has been made. That power is needed and is supported by the Information Commissioner, but it has a high test of criminal intent and would be used only in extreme cases.

The bill would also enable the Parliament’s committee system to act when the Scottish Government fails to do so. For example, that would mean that, if the Scottish Government failed to introduce proposals to extend freedom of information law to the whole care sector or, indeed, parts of it, or even one or two organisations, a committee could make proposals on that.

I look forward to hearing members’ contributions. I will address some of the other issues that are connected with the bill, such as that of costs, in my closing speech.

I move,

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

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