Section 52 — Exception from duty to comply with certain notices

Freedom of Information (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:00 pm on 24th April 2002.

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Photo of Jim Wallace Jim Wallace Liberal Democrat

Amendments 29 and 30 fulfil a commitment that I gave at stage 2 to import from "An Open Scotland" the policy that a ministerial certificate would be used only in relation to information of exceptional sensitivity. Making that adjustment has meant that the drafting of section 52(2) has been amended to emphasise—within the confines of the terms of the Scotland Act 1998—that any decision by the First Minister to issue a certificate to the commissioner would be taken on the basis of consultation with all the members of the Executive. Members of the Parliament will recall that the policy intention was that such a decision should be a collective decision of the Cabinet, but the terms of the Scotland Act 1998 specifically require the First Minister to make the decision after consultation.

Michael Matheson will no doubt argue for a shortening of the relevant period; indeed, he will argue for section 52 to be removed altogether. I will address those issues. Amendment 7 would change the number of working days that the First Minister has to lay a copy of a section 52 certificate before the Parliament and to advise the original applicant of the reasons for the decision not to accept the commissioner's opinion. At stage 2, in response to members' concerns about the time scale, we lodged an amendment that required the specified actions to be completed not later than the 10th working day, which the Justice 1 Committee accepted.

Members will understand that we are not dealing with a significant point of principle. It is simply not practical to require both actions—not just the laying of the certificate before the Parliament—to be completed within a period of five working days. Although a period of 10 working days represents a stringent requirement, it allows some flexibility to take account of any unforeseen circumstances—fog in Stockholm, for example—that might prevent the First Minister from signing off a letter to the original applicant and laying the certificate before the Parliament.

An amendment that was similar to amendment 8, which would delete section 52, was considered at some length at stage 2. I do not need to speak at length about why I believe—some members of the Justice 1 Committee did too—that it was appropriate to retain in the bill a limited override provision, which would be used in exceptional circumstances. The provision is limited in its scope, cannot be invoked by an individual Scottish minister and does not operate to prevent the commissioner from considering an appeal. Amendments 29 and 30 make clear on the face of the bill our long-standing policy that a section 52 certificate would be used only if the information that was requested was of exceptional sensitivity.

The provision would not undermine or weaken the bill. I do not hear it said that the relevant Irish or New Zealand acts are fatally flawed by inclusion of certificate provisions of a similar nature. As I explained at stage 2, a section 52 certificate can only be issued when there are reasonable grounds to do so and a certificate could be subject to judicial review and could be quashed, if a court was satisfied that there were no reasonable grounds for issuing the certificate. The Parliament would also have the opportunity to scrutinise the use of section 52 powers. The provision is a necessary and appropriate provision, but it is limited. It is similar to provisions that are found in comparable regimes and is part and parcel of the checks and balances that are in the freedom of information scheme. I ask members to reject amendments 7 and 8 and to support amendments 29 and 30.

I move amendment 29.

Photo of Michael Matheson Michael Matheson Scottish National Party

I welcome the amendments that the Executive has lodged, because they represent a welcome step in the direction of limiting the way in which the section 52 certificate could be used. It will now only be possible to use such a certificate with issues that are considered to be of exceptional sensitivity.

On amendment 8, I do not believe that a ministerial veto is necessary. The bill contains a range of exemptions and safeguards that apply to a variety of information, whether that information is secret, commercially sensitive, in the public interest or represents a class exemption. All those safeguards will ensure that information that should not be released to the public is not released. Therefore, I can see no reason for having such a backstop measure—the belt-and-braces approach that will allow ministers to veto a decision by the information commissioner to release information. That is what the ministerial veto will allow.

The minister has said much today about the fact that the information commissioner has an important role to play in engendering an open culture and ensuring that the legislation works effectively. However, the ministerial veto will allow the First Minister to overrule the information commissioner when he has directed that information should be made available. There is no justification for such provision to be made in the legislation. If anything, the ministerial veto acts in favour of non-disclosure as opposed to acting in favour of disclosure.

If ministers are intent—as it appears that they are—on maintaining the ministerial veto, it is unacceptable for them to allow themselves 10 working days before laying the certificate before Parliament. It is clear that ministers do not work at the weekend, but 10 working days is equivalent to two weeks. If ministers have consulted their Cabinet colleagues and have considered the matter seriously, surely it would be a perfectly simple matter for them to lay the certificate before the Parliament within five working days. I do not accept the minister's arguments about why there is a need for a fortnight's wait.

The only reason that ministers might want to delay laying the certificate would be in order to take the political sting out of an issue. The sooner the certificate is before the Parliament, the earlier members will be allowed to scrutinise exactly why the First Minister has acted in such a way. That is why the time scale should be reduced from 10 working days to five working days.

Photo of Murray Tosh Murray Tosh Conservative

I call Duncan McNeil. [Interruption.] Duncan McNeil, your light is on.

Photo of Murray Tosh Murray Tosh Conservative

That confirms long-held suspicions.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

I welcome as a significant step forward the Executive's amendment 30, which says that the veto can apply only to information of exceptional sensitivity. Many members would like there to be no veto at all, but I accept that such a veto is a comfort blanket for some senior politicians and senior civil servants. If there were no veto, there would be widespread heart attacks in those ranks that would cause the national health service a lot of undesirable expenditure.

The veto must be reported to Parliament, although I accept that one can argue about whether that should be done within 10 days or five days. From past experience, I am sure that members would get torn into the matter and that the First Minister would have to have a good case in order to withstand that scrutiny. As the information must be of exceptional sensitivity before the First Minister and the Cabinet can use the veto, the Executive has gone a long way towards meeting our concerns. I welcome that degree of flexibility from the Executive.

Photo of Christine Grahame Christine Grahame Scottish National Party

I will make a brief contribution to the debate on this group of amendments. There was a strenuous debate in the Justice 1 Committee about the ministerial veto and I note that the minister has moved on the matter, albeit not far enough for some of us. For the minister to refer to the veto as an override—as he also did in the Justice 1 Committee—was a bit of sleight of language. After all, it is a veto.

I note what the minister said about the Cabinet's collective decision on such matters. However, the problem for the chamber is that everyone in the Cabinet owes their position to the First Minister. We wonder how strong collective decision making can be in those circumstances.

At the end of the day, if the First Minister's veto is used, it will be up to Parliament to call the Executive to account. That is a matter for the justice committees. I hope that the Parliament will refer such matters to one of the justice committees, with a view to having a full debate in the chamber thereafter. The Parliament should exercise its powers over the Executive in such matters.

Photo of Brian Fitzpatrick Brian Fitzpatrick Labour

Christine Grahame disclosed a rather unusual view, both of the benefits for members of collective responsibility and of the pressures that are exerted on individual ministers in relation to the exercise of such powers, given their collective obligations to their Cabinet colleagues. She betrays yet again a fundamental misunderstanding of the Executive's intentions in relation to the ministerial veto. It is welcome that ministers have to satisfy themselves about the circumstances in which those powers will be applied. It is also welcome that ministers must then report to, and be prepared to stand before, the Parliament. Over the course of the past few months and years, we have not seen an unwillingness on the part of members to interrogate those decisions. Given that history, I do not think that we need to worry too much about the future.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Let me remind colleagues that the circumstances under which the ministerial override could be used—they are set out in section 52(1)(b)—are in themselves somewhat limited. For example, section 29 relates to the formulation of Scottish Administration policy and has already been debated. Section 31(1) relates to information for the purpose of safeguarding national security. The ministerial override could also be used for information relating to our international relations and communications with the sovereign. The circumstances are very limited indeed.

It is also important to remember that the ministerial override is part of a bill that contains a substantial prejudice test. In all other circumstances, the bill allows the commissioner to order disclosure with the penalties and legal requirements that follow from that.

To pick up Brian Fitzpatrick's point about collective responsibility, the idea that if the First Minister decided to use the override, all of us ministers would just touch our forelocks and agree with him betrays little understanding of the discussions that can go on inside government. In New Zealand, the initial experience was that, when individual ministers could exercise the override, they did so on a number of occasions—so much so that it was found necessary to go back to Parliament and amend the law to make the decision a collective one. Since that happened in, I think, 1987, the collective override has not been used in New Zealand.

Photo of Dennis Canavan Dennis Canavan Independent

The commissioner is supposed to be an independent person, but Scottish Executive ministers are not renowned for their independence. Why cannot the commissioner be given the final say on whether the information ought to be released?

Photo of Jim Wallace Jim Wallace Liberal Democrat

The reason is that in a very limited number of cases, such as in issues of national security, ministers might take the view that the information was of such exceptional sensitivity that it ought not to be disclosed. A certificate could be issued only if such a view was taken.

As Brian Fitzpatrick rightly pointed out, the certificate would need to be laid before the Parliament and could be a subject for debate. It would be for the Parliament to decide whether it wanted to remit the issue to one of the justice committees—although, having heard what Michael Matheson said, doing that might result in a longer deliberation in the committee, which could take the heat out of the debate even more. However, that is a matter for Parliament.

On the timing, I emphasise that we want to give some real substance to the provisions that allow ministers to address the issue about whether the information is of exceptional sensitivity. Decisions on such matters should not be taken lightly. I believe that 10 working days would allow proper consideration of the issues involved. The issues would obviously be matters of the highest importance. I do not believe for one moment that the Parliament would not make ministers accountable for the decision that they took.

I urge the Parliament to support the Executive amendments and to reject the amendments in the name of Michael Matheson.

Amendment 29 agreed to.

Amendment 30 moved—[Mr Jim Wallace]—and agreed to.

Amendment 7 moved—[Michael Matheson].

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 7 be agreed to. Are we agreed?

Members:

No.

Division number 17

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

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 31, Against 78, Abstentions 0.

Amendment 7 disagreed to.

Amendment 8 moved—[Michael Matheson].

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 8 be agreed to. Are we agreed?

Members:

No.

Division number 18

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Paterson, Mr Gil, Reid, Mr George, Robison, Shona, Russell, Michael, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew
Against: Aitken, Bill, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, 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, McCabe, Mr Tom, McGrigor, Mr Jamie, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, 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, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan, Young, John

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 32, Against 78, Abstentions 0.

Amendment 8 disagreed to.