Secretary of State for Scotland (Meetings)

First Minister's Question Time — Scottish executive – in the Scottish Parliament at 2:30 pm on 5 October 2000.

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Photo of John Swinney John Swinney Scottish National Party 2:30, 5 October 2000

To ask the First Minister when he last met the Secretary of State for Scotland and what issues were discussed. (S1F-572)

Photo of Donald Dewar Donald Dewar Labour

I last met the Secretary of State, along with other colleagues, last week at Brighton, which is a prosperous watering place on the south coast of England. I spoke to him at length this morning. I will be seeing him in Glasgow tomorrow. Our discussions range widely.

Photo of John Swinney John Swinney Scottish National Party

I am sure that the Brighton event was as enjoyable as usual.

Did the First Minister's discussions with the Secretary of State for Scotland touch on the release of information to the parliamentary committees that are conducting inquiries into the exams crisis; a crisis that has affected many students in Scotland and caused distress to parents and others? It is clear that the release of information to the parliamentary committees lies at the heart of the success of those inquiries. In the discussions that the First Minister has had with Mr McLeish and Mr Galbraith, did he pay any attention to the contents of section 23(1) of the Scotland Act 1998? [Applause.]

Photo of Donald Dewar Donald Dewar Labour

Applause is easily earned these days.

I am very familiar with section 23, and regard it as a nuclear option, which no one would want to see used on a regular basis. Of course there is a problem, which John Swinney will be the first to recognise, because there is a code of practice on access to Scottish Executive information that deals with internal discussion and advice. The code holds that such information is exempted from the general assumption of disclosure. That is not an unusual provision. It is true of Westminster. It is also true of a large number of regimes with forward-looking freedom of information acts, such as Canada, New Zealand, Australia and Ireland. But we have made it clear to the committees concerned, and to this chamber, that we are looking for a constructive way forward.

A great deal of thought is being given to this matter by Henry McLeish and Sam Galbraith. I understand that Sam Galbraith met the conveners of the relevant committees today. There was a constructive discussion, and they have gone away to think about some of the proposals that were made.

Photo of John Swinney John Swinney Scottish National Party

I am glad to hear that the First Minister is familiar with section 23(1) of the Scotland Act 1998. For the benefit of those who are not as authoritatively involved, I will read it to Parliament:

"The Parliament may require any person . . . to produce documents in his custody or under his control, concerning any subject for which any member of the Scottish Executive has general responsibility."

In one of his many distinguished contributions to the House of Commons, Mr McLeish explained that clause for the avoidance of any doubt:

"that any person can be compelled to give evidence and produce documents . . . about fully . . . devolved matters."—[Official Report, House of Commons, 29 January 1998; Vol 305, c 597.]

It is beyond reasonable doubt that Mr McLeish and Mr Galbraith have ministerial responsibility for the Scottish Qualifications Authority. The parliamentary committees have asked for information— [Interruption.] One parliamentary committee has asked for access to information. So far, the Executive has taken four weeks to refuse that access. Is not the First Minister acting in contravention of the Scotland Act 1998?

Photo of Donald Dewar Donald Dewar Labour

I am afraid that that explanation was riddled with assumptions that are unsafe and has largely been overtaken by events. Of course, the provisions in section 23 exist. One of the committees—not both—has asked for the production of documents, and so far as I am concerned, I have made it clear that section 23 exists. However, I have tried to explain to Mr Swinney that there are real difficulties about the workings of Government— [Interruption.]

Photo of Donald Dewar Donald Dewar Labour

It would be a shame if there were to be laughter about a serious matter. The point is that, for good reasons, there is protection for direct civil service advice to ministers. In the same way, as John Swinney knows, it is not possible for me to go back and look at papers from the time of Michael Forsyth. That was not open to me as the Secretary of State for Scotland, and it is not open to me as First Minister. The reasons for that are self evident, and are established by long habit. Mr Swinney should recognise that there is a problem here. He should also recognise that constructive discussions are going on and that it might be better to let them take their course than to spar in this way.

Photo of John Swinney John Swinney Scottish National Party

All I am doing is reminding members of the law and of what is in the Scotland Act 1998, which was put through Parliament by Mr Dewar and Mr McLeish. I have been considering the guidance notes that go with the issues to which the First Minister has referred. One of the points in the notes is that

"potential embarrassment which may be caused to civil servants or Ministers should not be a factor in deciding whether information should be made available."

Would it not be better—for the thousands and thousands of people who were affected by the crisis over the summer—to be open and accountable with the public than to operate in a culture of secrecy? Is it not time for the First Minister to order the release of those documents, or will he continue to be in contravention of the Scotland Act 1998?

Photo of Donald Dewar Donald Dewar Labour

First, I am not in contravention of the Scotland Act 1998. Section 23 is a power that has not yet been invoked and if Mr Swinney wants to bandy legal points with me, I must point out to him that that is the legal position. I said that I thought that section 23 was something of a nuclear option. If carelessly invoked, it will do great damage to relationships between ministers of any political party and the civil service and the way in which it operates. If he was a little nearer to Government, he might see that rather more clearly than he does at the moment.

In any event, I have made it clear that discussions are in hand. My understanding is that the discussions today were fairly constructive. Proposals are on the table. I very much hope that they will not be rejected out of hand, simply because of the démarche that Mr Swinney has made at question time today.