Local Government and Communities Committee

Meeting date: Wednesday, March 20, 2019

Official Report 618KB pdf

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Subordinate Legislation

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Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 [Draft]

Agenda item 2 is consideration of a statutory instrument that would give the public the right to request information from registered social landlords and their subsidiaries about public functions that they perform. The committee will take evidence from Graeme Dey, who is the Minister for Parliamentary Business and Veterans; Gerry Hendricks, who is head of the Scottish Government freedom of information unit; Graham Crombie, who is head of policy in the Scottish Government freedom of information unit; and Christine Reay, who is a solicitor in the Scottish Government.

The instrument has been laid under affirmative procedure, which means that the Parliament must approve it before the provisions can come into force. Following the evidence session, the committee will consider the motion to approve the instrument.

I am pleased to speak in favour of the motion.

The order is the third such order to be laid by the Government in the past six years. It will further increase the reach of Scotland’s freedom of information legislation, which aims to promote openness, transparency and accountability.

The order proposes to extend freedom of information requirements to around 160 registered social landlords and their subsidiaries. Those bodies undertake key public functions by providing housing accommodation where an RSL has granted a Scottish secure tenancy or a short Scottish secure tenancy. Bringing those bodies within the scope of the freedom of information regime will increase the public’s information rights. Once the order comes into effect, the public will have the right to ask such bodies for information under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Scotland’s first order under section 5 of the Freedom of Information (Scotland) Act 2002 brought within the scope of FOI a wide range of arm’s-length organisations that were established by local authorities to provide leisure, sporting and cultural services. Evidence from the previous Scottish Information Commissioner, which was presented in her special report to Parliament in 2015, found that request levels had stayed the same for most arm’s-length bodies. The report also found that becoming subject to FOI had not made responding to information requests more or less difficult for the affected bodies. However, the report also noted the importance of allowing adequate time for preparation for designation. It is clearly important to be prepared for the impact of any new regulations from day 1.

I thank the Scottish Information Commissioner for his commitment in offering to support in the coming months the organisations that are proposed for inclusion. Once the order is in force, the Government and the commissioner will closely monitor its impact to inform proposals and preparation for future orders.

I know that not everyone—including some who responded to the most recent consultation—is satisfied with the rate of progress in extending coverage. However, I restate that we are committed to extending coverage. We have said that we will consider whether bodies that provide health and social care functions should be included, and work on that is under way. Last year, the Parliament also agreed that the Scottish Government should consult on proposals to further extend coverage of Scotland’s freedom of information legislation—for example, to companies that provide services on behalf of the public sector.

Consulting on proposals for further extension is crucial to the success of further section 5 orders, and my officials are considering options for designating more bodies. I look forward to updating Parliament when we lay a further report on use of the section 5 power later this year.

I ask the committee to support the motion.

Thank you very much. Are there any questions?

In your policy note, you say:

“in the interests of transparency and accountability, the Scottish Ministers consider it appropriate that RSLs and their subsidiaries should be subject to the provisions of the Act ... Designating such bodies as Scottish public authorities ... would ... remove the anomalous situation whereby identical services, such as the provision of housing accommodation by a local authority, are already subject to freedom of information legislation.”

Private schools already provide statutory education services. Is that an example of an “anomalous situation”, given that state schools are already subject to FOI? How far would one take the alleged “anomalous situation”?

I will bring in my officials to deal with the specific details of that.

Overall, ministers take an incremental approach on designation. In the second designation order, which was made in 2016, certain independent special schools were brought within the ambit of FOISA. That was done in order to resolve the perceived anomaly that other special schools were subject to the legislation, but those independent ones were not.

Ministers look at such matters incrementally, and when they are brought to their attention. They carefully consider designating bodies in accordance with the principles that they have already set out.

Can we take it as read that the Scottish Government, as a matter of policy, takes the view that such anomalous situations are candidates for FOI extension?

We have a programme of further work ahead of us to look at designating other bodies. If Mr Wightman has specific concerns that might influence our thinking, I would be happy to hear from him. If he wants to write to me on that subject, we can certainly take a look at that in the context of that work.

Okay. Thank you.

The Scottish Federation of Housing Associations mentioned in its evidence

“other legislation that RSLs will also come under as an unintended consequence of extension.”

It mentioned the general data protection regulation in that regard, and highlighted that

“The definition of public bodies given within that legislation is those bodies classed as public authorities under FOISA”.

It also mentioned payroll legislation. Again, a “public authority” is defined as a

“Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002.”

It said:

“Conversely, the Lobbying (Scotland) Act 2016 will no longer apply to RSLs following extension—as the Act specifically exempts bodies subject to FOI.”

There might be other legislative provisions in which public authorities are defined in reference to whether they are covered by FOI legislation.

Have you considered or analysed the impact of those consequences? Have you taken a view on whether it is desirable that RSLs should no longer be covered by the Lobbying (Scotland) Act 2016, for example?

Quite an extensive exercise has been undertaken to look at how we can best capture RSLs. All aspects of that have been considered, and we think that we have ended up in the appropriate place. Again, I will bring in an official to respond because, obviously, I inherited the situation when I became a minister. Graham Crombie will have a more detailed understanding of the earlier process.

I will make two points about the pieces of legislation that the Scottish Federation of Housing Associations mentioned. First, those matters were raised with us, and we have considered them and engaged with the federation on them. It would be fair to say that we do not necessarily share the analysis that the federation has arrived at, as set out.

Secondly, those are not unintended consequences of designation, as has been suggested. What happened in each of those cases was that Parliament decided—for example, when it passed the Lobbying (Scotland) Act 2016—to take a particular position in relation to bodies that were or were not designated bodies for FOISA purposes. Those were policy decisions. If Parliament decided that bodies that were subject to FOISA should not be subject to the lobbying legislation, that will have been a consequence of the decisions on lobbying, not a consequence of the decisions on FOISA.

The Public Audit and Post-legislative Scrutiny Committee is doing post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002, so if you have concerns in that area, you might want to feed in your thoughts to that committee.

It sounds as though I have some work to do.

The Campaign for Freedom of Information in Scotland has drawn attention to the fact that this is the first time that we have designated bodies as public authorities for the purposes of FOI but have further restricted the definition by making reference only to particular functions that those bodies carry out, as opposed to just designating the bodies as public authorities and making them subject to the FOI legislation. Is it correct to say that this is the first time that that has happened?

I am afraid that we do not have an answer to that specific question.

I think that you might be getting at the fact that we have looked at specific elements of the activities of RSLs instead of just capturing RSLs in general. For example, there was a concern that we ought to take into account factoring, which has not been covered. Factoring has not been covered because ministers can extend coverage only to bodies that appear to exercise functions of a public nature. The order must say what those functions are. We consulted on whether the provision of factoring services should be one of those functions, and a number of competing arguments were made about whether that is a function of a public nature. After careful and detailed consideration, we arrived at our present position—we concluded that the provision of factoring services involved a private arrangement between the RSL, as factor, and the owner.

However, that is not necessarily the end of the story where factoring is concerned, because we have noted that certain aspects of factoring that apply to not just RSLs but all factors might be considered to be functions of a public nature, so we could consider consulting on including factoring services more broadly in the future. That option is open to us. Therefore, we could eventually capture factoring services, too.

Would one example of that be what has been drawn to our attention by Anne Booth, who lodged petition PE1539? In her submission to the committee, she mentioned that she is factored by a subsidiary of a housing association and that she lives side by side with tenants who are factored by the local authority. As those are similar functions, she feels that the subsidiary should be covered in the same way that the local authority is.

Is not her house a private house? I think that that is why there will be competing views on whether such bodies should be captured. I will leave it at that, because I cannot give you a definitive answer.

As I understand it, the substance of the Campaign for Freedom of Information’s concern is that, because the functions are defined as being limited to those

“for which a registered social landlord has, under the Housing (Scotland) Act 2001, granted a Scottish secure tenancy, as defined in section 11 or a short Scottish secure tenancy as defined in section 34 of that Act”,

that will make things difficult for users of the FOI legislation. At the moment, they can request information from the Scottish ministers, their local council or Forestry Commission Scotland, and any information that those bodies hold must be released unless it is subject to one of the existing statutory exemptions, which are now fairly broadly understood. People who want to obtain information from housing associations will now have to interpret whether the information that they seek relates to those specific functions under the Housing (Scotland) Act 2001. Will not having to meet that additional threshold cause confusion and difficulty?

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I do not see that it will. On my reading, the approach is simple and straightforward. It is obvious what should and will be available to people to request. The order will further extend the scope of FOI legislation and assist tenants to access information. As with any such measure, we will monitor implementation. If any difficulty emerges, we will take it on board, but I do not expect that in this instance.

Are you wedded to the notion that the order will come into force on 11 November 2019? The SFHA has referred to the need to consider staffing, training, systems, procurement and legal advice. A lot of work will need to be done by bodies, many of which are small, to comply with the FOI legislation.

The answer is yes. The order is not a surprise to RSLs; everyone has known for a considerable time that the measures are coming in. Over an extended period, we have engaged with RSLs, some of which have expressed concerns, and we have engaged with the Scottish Information Commissioner, whose view is that the nine-month period is perfectly workable. I am grateful that he is going to engage with RSLs in order to assist them. Nine months is an appropriate period to prepare for the measures and hit the ground running.

The minister is right that RSLs will have seen the order coming. According to the Campaign for Freedom of Information, it has taken 17 years to get to this point.

I will go back to the factoring argument, which is about subsidiaries of housing associations. If I was a housing association tenant—[Interruption]—I am sorry; I am not sure why Mr Wightman is waving at me. If I was a tenant of a housing association that also provided my factoring, why would I not be able to make a freedom of information request about the factoring services that my landlord offered?

The simple answer is that the order does not cover factoring.

Why not?

This might help to clarify the position slightly. Factoring services are provided to home owners but not to tenants. A registered social landlord manages housing accommodation for its tenants in the same way as any other landlord manages that, but for historical reasons, some housing associations and other registered social landlords also provide factoring services to private home owners—typically, they are people who exercised the right to buy, so their properties were tenanted once upon a time, but are no longer. That is why a factoring relationship rather than a landlord-tenant relationship exists. There are two separate relationships—one is between the RSL and its tenants and the other is between the RSL and the people who purchased their properties and are now home owners.

Graeme Dey said that the Government is minded to extend the FOI legislation to factors. Would not doing that under the order be a start?

I said that the option exists to do that further down the line, but the approach would have to be applied consistently and not targeted simply at RSLs. Factoring would be looked at across the board.

The session has been useful, because it has clarified a number of important issues. It has also flagged up the point that the measures have been under discussion, one way or another, for a considerable time. If the mood is for extending the legislation, perhaps to get on with it should be the recommendation.

I understand from my committee papers that the Scottish Information Commissioner supports the order. Will you confirm that, for the record?

The Scottish Information Commissioner supports the order and the nine-month period. As I said, he is also committed to working with RSLs to prepare them for the commencement date.

Thank you. I understand that the SFHA also supports the order. If that is the case, given the time lag, my inclination is that we should just get on with it. I imagine that any changes to FOI legislation involve reflection, consideration and consultation, and are incremental. That is the nature of the beast. The order falls very squarely within that process, so I support just getting on with it and extending the legislation.

I am grateful for that view. Just to give an illustration that might support your interpretation of the situation, I stress that we have gone through an extensive process before arriving at this point. Two consultation exercises on the order were carried out—with stakeholders and with other individuals who had an interest in it. There was further extensive engagement with stakeholders beyond that, to the point at which we felt that we have an order that is right, appropriate and proportionate and on which we were good to go, subject to the committee’s approval.

Do members have any other questions?

There is no doubt that freedom of information has moved on from its starting point, to the extent that it is now an industry. In many respects that is a good thing, because individuals and organisations have the chance to engage with others and to obtain information that they want. However, the order will have resource and cost implications. Have estimates been done of what the add-on factors might be, and of their consequences?

I will come back to the point about costs. First, I will pick up on the point about the development of FOI. Some people have been frustrated about the pace of that in Scotland—for example, as I said earlier, the order that is before us is only the third one to have been introduced in six years. From a layman’s perspective, I understand such frustration. However, over the past few months I have come to learn how freedom of information legislation works and what its requirements are.

If I might offer a bit of perspective, I note that the United Kingdom legislation on FOI came in two years before Scotland’s did, and in that entire period, the UK Government has designated just six bodies. The UK Information Commissioner has been very critical of that lack of pace and has contrasted it unfavourably with what has happened in Scotland. The process—the Public Audit and Post-legislative Scrutiny Committee might take a view on section 5 of FOISA—can appear to be time consuming and a bit cumbersome. However, we in Scotland are going faster and have more ambition to build on our process than our colleagues elsewhere perhaps do.

Gerry Hendricks might have information on costs.

When we have carried out reviews of orders we have not seen significant increases in the number of requests to other organisations: request levels have tended to stay the same. There has not been as great an impact as we had expected.

The Scottish Information Commissioner intends to support organisations through training and general advice. We are providing funding to the commissioner to support that element of the work.

Such continuity is vital, so that organisations have sufficient support, training and mechanisms to ensure that they can impart information, because those who seek it want the process to be transparent and the information to be passed to them as quickly as possible. In the past, there have been log jams and difficulties because there have not been enough personnel to manage such situations.

Minister, I look forward to seeing what progress will be achieved in the sector. As you have rightly identified, there is scope for development. We now have an opportunity to see where we are. In the next year or two, we will have clarity about what the knock-on effect as been. Do you plan to come back after that and give us information on how things have progressed against the various timescales?

On Gerry Hendricks’s point about experience, other organisations that have been captured by FOI have not reported massive upsurges. Perhaps the organisation with the largest upsurge has been the Scottish Government. We cover a far wider range of activities than the other bodies that are captured, and we attract requests from journalists and political researchers, as well as from the public. I suspect that RSLs and others are not necessarily in that category, and that it will, largely, be their tenants who are interested in securing information.

I will provide a bit of detail about what we are looking to do in the future. As was flagged up in 2017, we are engaging with a number of organisations, including Audit Scotland and bodies that deliver health and social care functions. We are also looking at charities that provide services of a public nature. That process is on-going. It will follow the normal procedures, so I am not about to tell you that it will all be done very quickly.

Getting into those landscapes will be far more challenging than what has been done thus far because of the sheer volume of bodies that will be covered and their varied functions. I say that not to get the excuses in early, but in recognition that it will be challenging. We are committed to progressing in those areas in an appropriate and, as I said before, proportionate way that follows the proper processes. Rest assured that the Government’s direction of travel is to expand the reach of FOISA and give the public greater access to information.

There are no further questions from members. Before we move on, I apologise for being late and thank Alex Rowley for standing in for me.

Agenda item 3 is formal consideration of motion S5M-15924.

Motion moved,

That the Local Government and Communities Committee recommends that the Freedom of Information (Scotland) Act 2002 (Designation of Persons and Scottish Public Authorities) Order 2019 [draft] be approved.—[Graeme Dey]

I will vote for the motion today. However, compared with previous FOI extensions, it raises some distinctive challenges, as it is restricted only to those public authorities in so far as they carry out certain functions.

I am pleased that the information commissioner supports the extension—his advice carries weight in our deliberations. However, I am acutely aware that some of the relevant organisations are among the smallest public authorities in Scotland. Therefore, I would be keen for the minister to confirm that he will keep the implementation under close scrutiny, take account of any concerns that come forward from requesters of information, RSLs, the information commissioner and others, and be open to amending the implementation date or the order in the light of experience.

I note that we are in a strange place in that we passed the Housing (Amendment) (Scotland) Act 2018 just last year—this committee scrutinised it—in which we categorised RSLs as private organisations and made sure that they were not considered to be public authorities for the purposes of debt. We are now saying that RSLs are public authorities for the purposes of information. In principle, I have no problem with that, but it creates a rather odd situation that might come back to bite us one day.

I would be grateful for the minister’s comments on providing assurance about keeping implementation under scrutiny and making sure that it takes place without any problems.

I have two points in response. First, there will be a review in November 2020 of how the implementation has taken place. Secondly, we intend to stick to the nine-month period and I do not envisage us moving away from that, as it will not be necessary. My understanding is that a lot of work has been done in the sector to prepare for implementation and a lot of support has been offered. In the meantime, I will have my ear open to any legitimate issues that are aired.

The question is, that motion S5M-15924, in the name of the Minister for Parliamentary Business and Veterans, be agreed to.

Motion agreed to,

That the Local Government and Communities Committee recommends that the Freedom of Information (Scotland) Act 2002 (Designation of Persons and Scottish Public Authorities) Order 2019 [draft] be approved.

The committee will report on the outcome in due course. I invite the committee to delegate authority to me, as convener, to approve a draft of the report for publication. Do members agree?

Members indicated agreement.

I will suspend briefly to allow the minister to leave and for a changeover of witnesses.

10:15 Meeting suspended.  

10:17 On resuming—