Freedom of Information

– in the Scottish Parliament at 3:21 pm on 25 November 1999.

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Photo of Jim Wallace Jim Wallace Liberal Democrat 3:21, 25 November 1999

I shall make a statement on the publication today of the Executive's consultation document on freedom of information, "An Open Scotland". Copies are being made available to members through the document supply centre. The document is being distributed widely throughout civic Scotland and will be available this afternoon on the Scottish Executive website.

The publication of our proposals fulfils our commitment to consult widely this autumn. I made that commitment in a statement to this Parliament on the subject in June, and it is in the Executive's programme for government.

As members will appreciate, freedom of information is a subject in which I have taken a considerable personal interest over many years. I am, therefore, delighted to announce the publication of the document. In June, I said that Scotland has an opportunity to adopt a distinctive approach to openness, and to create its own freedom of information regime that will be appropriate to a modern and open Government. The proposals that are contained in "An Open Scotland" can leave no doubt that the Executive is serious in its commitment to introduce an effective freedom of information regime for Scotland.

Effective openness leads to better scrutiny, better scrutiny leads to better Government, and better Government leads to an increased public confidence in decisions that are made which affect people's lives. By making information more widely available, we empower people; we do not weaken Government.

Taken together, the document's proposals tip the scales decisively in favour of openness and build on the presumption of openness that underpins the non-statutory code of practice under which the Executive operates. That is made clear by the powerful role that we propose for an independent Scottish information commissioner and our intention that Scottish public bodies will be able to withhold information only if its disclosure would cause substantial prejudice or would not be in the public interest.

At the heart of all freedom of information regimes is a balance between rights of access and the protection of sensitive information. I believe that we have struck the right balance. As I promised in June, I have driven forward the work on developing our proposals for consultation. This document represents the result of a great deal of hard work in a relatively short time.

The consultation document contains several clear proposals and identifies areas in which comment on particular options is being sought or in which further work is required. Comment would be welcomed on all aspects of freedom of information. The consultation period will be open until 15 March 2000, and I look forward to receiving the views of the Justice and Home Affairs Committee.

It may help Parliament if I draw attention to a selection of our key proposals. The freedom of information legislation will provide, for the first time, a statutory right of access to information. The coverage of the scheme will be wide and will include all Scottish public authorities and service providers, such as schools, NHS Scotland and the police, as well as Executive departments and agencies.

There will be a harm test of substantial prejudice. That means that, for a public body to withhold certain information, it would have to conclude that disclosure would result in prejudice that is real, actual and of significant substance. Even if it is considered that disclosure would result in substantial prejudice, the information would still be released if it was in the public interest to do so.

A central component of the scheme will be an independent Scottish information commissioner. There has been much discussion on the powers that such a commissioner should have: power to recommend disclosure or power to order disclosure. Let me make it clear that the Scottish information commissioner will have the power to order disclosure of information. [MEMBERS: "Hear, hear."] He or she will also be empowered to adjust charges and to resolve disputes by mediation, and will have a right of access to documents.

There will be a continued commitment to a culture of greater openness in the public sector, in which the Scottish information commissioner will play a key role.

Exemptions are a feature of statutory freedom of information schemes around the world. In most cases, we have taken as our starting point those exemptions set out in the code of practice. Such an approach offers a degree of continuity.

In areas in which it is considered essential to ensure close cross-border co-operation, such as law enforcement and legal proceedings, we propose that the exemptions in the Scottish regime should be compatible with the relevant provisions in the UK freedom of information legislation. That is, in part, to do with the unique position of the Crown Office as the sole prosecuting authority of Scotland. Cases are reported to the Crown Office by UK departments and agencies such as Customs and Excise and the Health and Safety Executive. The document sets out in further detail the strong practical arguments for that approach.

I have mentioned the Scottish information commissioner, who will have the power to order the disclosure of information in the public interest. The commissioner would play a key role not only in forcing the statutory freedom of information regime, but also, critically, in promoting freedom of information and openness in general.

The commissioner's power to order disclosure will apply to all requests. In very limited and clearly specified circumstances, however, the Scottish ministers could issue a certificate withholding information of exceptional sensitivity. That is not a step that would be taken lightly, nor would it be taken by an individual minister; it would require a collective cabinet decision. That approach is found in other freedom of information regimes and, in keeping with overseas experience, we envisage that it would be a rare event for the Scottish ministers to exercise that prerogative.

These are distinctive Scottish proposals but, where it has made sense to do so, we have had regard to the proposed UK scheme. I have discussed our approach with the Home Secretary, who has been constructive throughout. That the two Administrations are taking different approaches to this important subject demonstrates devolution at work.

In June, I said that effective freedom of information and openness is about culture as much as it is about legislation. The consultation document therefore devotes a chapter to the ways in which we propose to foster and maintain an appropriate culture of openness throughout Scottish public authorities. That is an important aspect of our proposals.

The package of proposals set out in "An Open Scotland" would deliver for Scotland: a real difference to the way in which information is made available to the people; increased openness in the working of Government; better scrutiny of Government; in short, better Government.

The consultation proposals represent the partnership in action and the Executive delivering on its commitments. I look forward to receiving comments on our proposals and to working with members of this Parliament and others as we move towards delivering Scotland's distinctive freedom of information act.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I thank the minister for taking less than the allotted time for his speech.

I have had some problems with the computer system but I have now cleared the screens, so I invite those who want to ask questions to press their buttons now.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I shall preface my remarks by saying something with my convener's hat on. It occurs to me that the Justice and Home Affairs Committee will probably now have to meet on both Christmas day and new year's day to cope with the work load that is coming our way. [Laughter.]

In general, I welcome the move towards a freedom of information act in Scotland. I very much welcome the presumption of access and the inclusion of the public interest element of disclosure, which I believe is very important. I also welcome the Scottish information commissioner's right to order disclosure, although I would like the minister to define what he means by "a rare event" when he talks about the possibility of the Cabinet deciding collectively to override that order. A number of us have experience of how frequently a rare event can take place in practice and I would like some reassurance about that.

The minister will be aware that not one but two freedom of information regimes will apply in Scotland because of the difference between the one that we will have here and the UK one. Does the Minister for Justice agree that there may be serious future difficulties, given Westminster's insistence on continuing to legislate on devolved areas? Will he indicate which regime will apply in situations such as the Home Office Asylum and Immigration Bill, which is a controversial example of mixed legislation?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I thank Ms Cunningham for her broad welcome of the proposals and apologise that they mean yet more work for her committee. She asked, how rare is a rare event? In regimes where similar arrangements apply, I understand that overriding the information commissioner's request is a rare event. You can imagine the political situation that would arise if the commissioner requested disclosure in the public interest and the cabinet decided collectively to override that. It is not the sort of thing that would be slipped out in a written answer just before a recess. I suspect that the Parliament would want to call ministers to account in such a case.

The circumstances in which that would apply are set out in annexe C of "An Open Scotland". They include: "Information received in confidence from foreign governments, foreign courts or international organisations"; class-based exemptions under "Internal discussion and advice" and under "Law enforcement and legal proceedings"; aspects of information relating to "Public employment, public appointments and honours"; and class-based exemptions under "Information given in confidence". It is a narrow range but one that allows us to strike the right balance and the commissioner to make an order rather than a recommendation.

Ms Cunningham also asked about the operation of two regimes. That was anticipated in the devolution settlement in that this Parliament was given the power to make arrangements for freedom of information with respect to the bodies for which we have responsibility. The scheme does not apply to particular pieces of legislation but to the departments that are responsible for holding the information, so if it was an immigration matter that would be likely to go to the Home Office and therefore would be subject to the UK bill, or if it was to do with social security, that would be the UK department as well. If documents relating to reserved subjects are in the hands of the Scottish Executive they would be subject to the Scottish freedom of information regime, with the important proviso that we would not have the power to disclose documents that are the property of UK departments and marked "In confidence" and the application would go to the originating UK department.

Photo of David McLetchie David McLetchie Conservative

I have a number of questions on the Deputy First Minister's statement and the principles of the proposed legislation. Why is it necessary? Is the minister aware of the code of practice established in 1994, updated in 1997 and updated again by his Administration—a code of practice that is recognised by freedom of information campaigners such as Maurice Frankel as stronger and more effective than the legislation proposed by the Home Secretary, Jack Straw?

What is stopping the Scottish Executive publishing anything it wants to without such legislation? Will the Deputy First Minister give us an example of information that it will publish in the future that is at present suppressed by the Executive?

As the Deputy First Minister said in his statement, the real test of freedom of information legislation lies not in the principle but in the exemptions, because if they are too widely drawn, the principle is undermined and not worth the paper it is written on. I ask him to comment on two examples that have come before the Parliament. There was considerable controversy about the decision by his colleague the Minister for Health and Community Care on the location of the paediatric cardiac surgery unit, and many people called for the information that informed that decision to be published. Will such information be available under the new regime, or will it be covered by an exemption?

Secondly, a more recent example is that members of the Education, Culture and Sport Committee asked a number of questions of the Deputy Minister for Culture and Sport, Rhona Brankin, on the financial problems involving Scottish Opera and the Hampden project. That information was withheld from committee members. Can the Deputy First Minister tell us whether, under his freedom of information legislation, that information would be made available to the committee, or would it be covered by an exemption?

Those matters are fundamental to the effectiveness of the regime. I should be grateful for the Deputy First Minister's comments.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am grateful for the questions.

Mr McLetchie's first question was, "Why is the bill necessary at all?" and then he proceeded to give good reasons—probably unwittingly—as to why it is. He mentioned the possibility of exemptions being widely drawn. In fact, we have tried to make the exemptions very specific; one can have relatively few exemptions if they are very widely drawn, but that can weaken the freedom of information regime. That is why we have tried to make the exemptions precise.

Mr McLetchie referred to two particular cases. On the siting of the paediatric cardiac surgery unit, he will recall that when he asked about that at open question time on 30 September, I responded that the information that he was seeking fell under the category of advice. That would be one of the exemptions, but—and it is an important but—we are proposing in the consultation document that the Executive's word would not be final. If the regime were in force, Mr McLetchie would have recourse to an appeal to the commissioner; likewise with regard to questions relating to Scottish Opera. In some cases, if the exemption is content-based, a substantial prejudice test will apply, and if it is a class-based exemption, public interest will be the determining factor.

Under the code of conduct that Mr McLetchie seems to think we should cling to, there would be no statutory right to access to information and the commissioner would not have the power, at the end of the day, to order disclosure if he or she considered that it was in the public interest to do so. That is a significant difference from what we propose. We are trying to ensure that there is a statutory right.

I accept Mr McLetchie's point: there are many things for which we do not need statutes, and as a clear indication of that, following the publication of the code in June, I wrote to all public bodies for which this Parliament has responsibility, encouraging them to adopt an approach of openness. As the First Minister indicated in open questions earlier, the information that was made available to the Justice and Home Affairs Committee by the Scottish Prison Service on the restructuring of the prisons estate was the kind of information that I do not believe would have been made available in other places or in times past. However, the SPS believed that the information would assist the committee in its deliberations and therefore should be made available to it.

Photo of Euan Robson Euan Robson Liberal Democrat

I welcome the minister's statement on the incorporation of this long-standing Liberal Democrat policy into law. Can he give examples of overarching public interest that might lead to the release of information that nevertheless has passed the harm test of substantial prejudice? When he mentions executive agencies and the coverage of the bill, does he intend to include Scottish Enterprise and local enterprise companies?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am not sure whether, when referring to overarching, Mr Robson meant the ministerial certificate of exemption. I cannot think of any examples in practice when what he suggests would happen. It is important to say that when the Cabinet considered the matter, we did not have any particular examples in mind.

I am sure that there will be occasions when—if Mr Robson is considering a lesser test—the test of substantial prejudice could be met, but nevertheless it may be felt that, in the public interest, the information should still be disclosed. It is invidious to start giving examples, because no doubt such matters will have to considered one by one. The point is that even if a public authority or ministers refuse an application, appeal to the commissioner will be available.

With regard to Scottish Enterprise, in annexe A of the document there is a lengthy illustrative list of the bodies that are covered by it. Although Scottish Enterprise does not immediately leap out at me, I am certain that it is there.

Photo of John McAllion John McAllion Labour

I also welcome the new spirit of openness and disclosure. I look forward to the day when the words "the honest politician" are not met with incredulous laughter among the public.

In that spirit, I ask the Deputy First Minister whether the powers of the new commissioner will include the power to order the Lord Advocate and the Crown Office to explain the reasons why they did not prosecute in certain cases. Will they include the power to require the Crown Office to make available forensic and other evidence, including police reports, on accidents and criminal incidents?

Photo of Jim Wallace Jim Wallace Liberal Democrat

As I indicated in my earlier remarks, Crown Office prosecution of crime is examined in our consultation document.

With regard to the Lord Advocate's position, as the head of the prosecution service in Scotland, that is excluded under the Scotland Act 1998. The independence of the Lord Advocate from the actings of the Executive is written into the act. In terms of the foundation act of this Parliament, it is not possible to bring him within the ambit of the legislation.

Matters relating to fatal accident inquiries and police investigations are in the exempt categories. As I explained, even if there was a refusal to give a piece of information which was under the exempt categories, it would still be open to the person who was seeking that information to apply to the commissioner.

Photo of Michael Matheson Michael Matheson Scottish National Party

I am sure that the Deputy First Minister is aware of Kevin Murphy's visit to Scotland last week. He is the information commissioner for Ireland, who is responsible for the Freedom of Information Act there. He made specific reference, when he was here, to the experience in Canada, which has had a freedom of information act for about 16 years. The greatest difficulty that the Canadians have experienced has been breaking down the culture of secrecy within public services.

What action will the minister take to break down the culture of secrecy, which often exists within public services?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I welcome that question, because it gives me an opportunity, again, to indicate clearly that I expect ministers and public authorities, which are answerable to this Parliament, to operate a culture of openness. I accept that the culture will not change overnight. However, we have given the lead, as a robust and far-reaching freedom of information regime will be put on the statute book. I hope that public bodies will get the clear signal that the Executive and the Parliament expect as much openness as is consistent with the proper discharge of their duties and subject to the exemptions that might apply.

Photo of Murray Tosh Murray Tosh Conservative

I welcome the Deputy First Minister's statement on the inclusion of Scottish Enterprise and LECs in the new regime.

I will ask the minister specifically about a consultancy report, which was prepared through Scottish Enterprise for the Scottish Executive, on the proposed M74 link in Glasgow. That is a matter of great interest, and there have been regular calls for that consultancy report to be released. I understand that the consultants and Scottish Enterprise are willing to release the report; the resistance has come from the Scottish Executive. Will his guidance given in July, or his proposed new framework, allow that document to be released to parties that are interested in it?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I cannot comment on that matter, as I do not know any of the detail of the background to it. An application can be made under the current code, and if the applicants remain dissatisfied, they can take the matter to the current commissioner. We would propose that under the act, in line with the consultation document, if there was continuing opposition to disclosure by the public authority and the commissioner found either that the substantial prejudice test was not met, or that it was met but it was in the public interest to disclose the information, he or she would be able to order that disclosure. That is why Mr McLetchie is wrong when he says that we do not need such an information regime.

Photo of Tommy Sheridan Tommy Sheridan SSP

Like previous speakers, I welcome the statement, which is in contrast to Jack Straw's backward and illiberal proposals.

Will the minister respond to a couple of points? First, will he indicate whether he intends to accept the recommendation of the Macpherson inquiry that all activities of the police, not just the administrative functions, should be open to public scrutiny? A number of individuals have sought guidelines on the use of CS spray, for example, and have been told that because it is an operational matter, they are not entitled to that information. It is difficult to prove that CS spray has not been used properly if the guidelines for its use are not published.

Secondly, can the minister confirm that there will be no gagging order as a condition for the release of information—in other words, that public bodies will not be able to make the release of information conditional on its not being used publicly or in any other way?

Thirdly, the powers of the Scottish commissioner sound great, but I was rather upset by what the minister said about the varying of charges. Does that mean that the Executive intends to impose a general charge across the board? If it became difficult for individuals to get information because of prohibitive charges, that would be inconsistent with a genuine freedom of information act.

My final point relates to response times. The minister referred to overseas experience, and he will be aware that in places such as New Zealand and America, the response time is 20 days. There was talk of the response time here being 40 days, which is not the practice in any other country. Can he give an indication of what the response time will be?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I can indicate to Mr Sheridan that the expected response time would be 20 days. If it were not possible to collate the information within 20 days, the applicant would be expected to be informed of that within 20 days.

I can assure Mr Sheridan that no gagging order will be placed on the release of information. When information has been released, it will be up to the person or body that receives it to do what they want with it.

Mr Sheridan's question about the police and the Macpherson report into the Stephen Lawrence case is very important. Again, we have sought to strike the right balance in that area. Information held by the police will be covered by the freedom of information regime, with a combination of class-based and content-based exemptions. When a matter is content-based, it will be subject to the harm test of substantial prejudice for withholding information. The inquiry report recommendation was that all information should be subject to a harm test. We do not believe that that would be the best way of handling information that related to sensitive criminal prosecutions. However, I can reassure Mr Sheridan that public authorities would be required to consider the public interest in disclosure. In any event, an appeal against non-disclosure could be submitted to the Scottish information commissioner.

Mr Sheridan also asked an important question about charging. That matter is addressed in one section of the consultation paper, which puts forward a number of options. I share the member's view that we do not want to nullify access to information by putting prohibitive charges on it. At present, if the cost of gathering information is less than £100, it is provided free. People have to pay if the cost is more than £100—if it was £150, for example, they would pay £50. That is one of the options set out in the paper. We would welcome informed and constructive comment on that during the consultation period.

Photo of George Reid George Reid Scottish National Party

That concludes questions on the statement on freedom of information.

Photo of Kay Ullrich Kay Ullrich Scottish National Party

On a point of order, Presiding Officer. I must draw your attention to the fact that yesterday the contents of the statement that is about to be made on a strategy for carers were released to the press. I first learned of that yesterday afternoon, when I was called by a journalist who asked me to comment on something that I had not had the opportunity of seeing. This is becoming an intolerable situation.

Photo of George Reid George Reid Scottish National Party

Thank you for that point of order. Because I am not au fait with all the details of the situation, I can only refer back to what the Presiding Officer said previously: that we are all on a learning curve, that he did not want to be unduly censorious, and that this is a matter of good practice and of observing the founding principles of the Parliament. I will have investigations and discussions initiated and get back to the member.