After section 5

Freedom of Information (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:45 pm on 24th April 2002.

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Photo of Michael Matheson Michael Matheson Scottish National Party

The purpose of amendment 63 is that, where a function of a public authority is privatised or put into the charitable or voluntary sector, the body to which the service is to be transferred will be treated as a public authority. If it is not, the Scottish Executive will have to give reasons to the Scottish Parliament as to why it should not be classified as a public authority.

Private finance initiatives and contracting out of services mean that the bill will no longer cover many functions that public authorities used to undertake and which have been transferred or contracted out. Allowing sources of information to slip out of the freedom of information regime runs against the spirit of the bill. We should have a right to know the staffing levels in our direct labour organisations, our public hospitals, our schools and our public prisons, as we do at present, but we should also have a right to that information if those services are contracted out. The public interest remains the same, irrespective of who undertakes such roles.

Amendment 63 would address the problem of the lack of a level playing field between public authorities, such as direct labour organisations, which compete with private companies for public service contracts. Private companies, unlike public authorities, do not incur the costs of the freedom of information regime and do not have to reveal information to their rivals on request. If that loophole in the bill is not closed, the danger is that it could act as an incentive for privatisation for authorities that do not like, or do not wish, to place information in the public domain.

Those difficulties exist primarily because the Executive has failed to include in the bill a general definition of a public authority. Instead, it has chosen to provide a list of all the public authorities to which the bill will apply. The complexity of that arrangement has been highlighted in the past few weeks, as the Executive has had to lodge eight amendments to take account of institutional changes. Furthermore, the Executive had to lodge an amendment to add licensing boards to the list, which had been missed out of schedule 1.

The best way of ensuring proper democratic accountability of services that move from the public sector to private contracts would be to include a provision that applies the freedom of information regime to services that transfer to the private sector.

I move amendment 63.

Photo of Jim Wallace Jim Wallace Liberal Democrat

As Mr Matheson said, amendment 63 would add all bodies to which a public authority's functions have been transferred to the list of bodies that the bill covers, provided that that would be within the Parliament's competence—we could not add reserved bodies. The amendment is superficially attractive and I understand the concerns that lie behind it, but members should understand the significant practical problems that a proposal with that somewhat indiscriminate approach would create.

It is true that amendment 63 would catch the situation in which a public authority transfers a major function to another body, but members should also be aware that it would catch even the most minor transfer of functions. For example, many public authorities run crèches for their staff. If an authority decided to pass the operation of a crèche to a local community group, that community group would be subject to the full rigours of the freedom of information regime. For example, it would have to draw up and maintain an approved publication scheme. That example sounds ridiculous, but it shows the problems with the amendment's indiscriminate, catch-all approach.

Scottish ministers would have a statutory obligation to make a designation order in respect of any such transfer of functions, which would mean that ministers would have to be omniscient. For example, they would have to know that local authorities had put a village hall into the hands of a community group.

I do not think that Mr Matheson intended such a consequence and I acknowledge his point about more major transfers of functions. However, it is not as if no safety net exists in such circumstances. Provisions allow providers of services to the public to be added to the bill case by case, and I reassure the Parliament that that power will be exercised. I hope that Executive amendment 26, which we will reach later, will be agreed to, because it further reinforces the provision to give the commissioner the express power to make recommendations to ministers about the scope of the bill. I hope that that is of particular reassurance.

It is important to point out that the bill imposes a substantial range of responsibilities and statutory duties on the public authorities that are brought under the powers of the bill. That is the reason for the Executive choosing carefully the route of listing the bodies that would be covered by the bill. The inclusion of the list means that no one should be in any doubt about the fact that they are covered and that they must respond and make provision for the range of statutory duties that will fall upon them.

As I have said, we have made provision to allow ministers to designate other bodies to be added to the list, in particular in the circumstances of a major transfer of functions. I strongly urge the Parliament not to support the indiscriminate approach that is proposed in amendment 63, but to support the scheme as set out in the bill.

Photo of George Reid George Reid Scottish National Party 3:00 pm, 24th April 2002

Christine Grahame indicated that she wished to speak after the minister. I will give the minister another chance to reply before I call Michael Matheson.

Photo of Christine Grahame Christine Grahame Scottish National Party

The opportunity to speak has come quickly—I expected other members to come in.

I speak in support of amendment 63 and remind the minister of a recommendation in the Justice 1 Committee's stage 1 report. The recommendation, on which the committee was unanimous, relates to the provisions of amendment 63. I quote from paragraph 10:

"The Committee is concerned that many public services are provided through private/public partnerships and private finance initiatives, as well as by voluntary and community organisations, and that these organisations will only be covered by the provisions of the Bill if designated by Ministers. Whilst the Committee acknowledges that it would not be practical to list all such organisations in the Bill, it recommends that the Executive should look at whether an appropriate form of words could be inserted into the Bill to ensure that such bodies are automatically covered by the legislation, without the requirement for Ministers to designate these organisations as public authorities."

I accept that the minister has moved to a position in which he will consult the commissioner before he designates organisations. However, there is still the problem that the power remains with the minister to designate or remove. I remind the minister that the Justice 1 Committee was unanimously unhappy with that power.

Photo of Jim Wallace Jim Wallace Liberal Democrat

We have, of course, considered the matter. As I indicated to the Parliament, the consequences of Michael Matheson's amendment would go far beyond the big cases. We are not talking only of consultation with the commissioner. Amendment 63 proposes that the commissioner would be able to make a recommendation, off his or her own bat, of which ministers would be expected to take account. If ministers did not do that, I rather suspect that a number of members would ensure that they did.

In my earlier remarks, I indicated that the power to designate bodies on a case-by-case basis is one that we intend to exercise. As that power requires statutory consultation, it would be invidious to name individual companies for fear that, at a later stage, we might fall foul of people saying that ministers had not engaged properly in consultation. We all know the kind of companies and operations that are under consideration. As I said, it is our intention to proceed with consultation with a view to adding bodies to the list. The important point is that those bodies should know where they stand. They should not receive a request and be able to say that they did not realise that they were covered by the legislation.

From the point of view of the applicant, and of the public authority, there should be no doubt whether the act, with all its implications, applies to a particular body.

Photo of Michael Matheson Michael Matheson Scottish National Party

It is important that members are reminded of the Justice 1 Committee's recommendation at stage 1, which Christine Grahame highlighted. Members will also be aware that there is an increased incidence of the transfer of public services to the private sector. I have often heard members complain of the difficulties that are involved in obtaining accurate information from those private sector organisations.

In the course of the evidence that the committee received, and which is contained in its report, Glasgow City Council stated that it believed that:

"private organisations carrying out public functions should automatically be covered on the principle that 'openness is the price of doing business with the public sector'."

I believe that a general provision should be made for public services that are transferred to the private sector. The problem with the system that the bill will introduce has been illustrated by the fact that, in the couple of weeks between stage 2 and stage 3, eight organisations have been taken off the list and one has been added. On that basis, I will press amendment 63.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 63 be agreed to. Are we agreed?



Division number 1

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McLeod, Fiona, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Paterson, Mr Gil, Robison, Shona, Russell, Michael, Scanlon, Mary, Scott, John, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Tosh, Mr Murray, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fitzpatrick, Brian, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 44, Against 64, Abstentions 0.

Amendment 63 disagreed to.