Section 72 — Commencement

Freedom of Information (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:45 pm on 24th April 2002.

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Photo of Murray Tosh Murray Tosh Conservative 5:45 pm, 24th April 2002

I call Robin Harper formally to move amendment 11, which was debated with amendment 74. [Interruption.]

I think that all the technicalities have surprised Mr Harper. Does any other member feel inclined to move amendment 11 for him?

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 11 be agreed to. Are we agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

There will be a two-minute division. There might be enough time for Mr Harper to return to the chamber and find out the result.

Division number 21

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, MacAskill, Mr Kenny, MacDonald, Ms Margo, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Paterson, Mr Gil, 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 29, Against 78, Abstentions 0.

Amendment 11 disagreed to.

Photo of Murray Tosh Murray Tosh Conservative

I call the minister to move and speak to amendment 37, which is grouped with amendments 9, 77, 38, 39, 40 and 41. I must point out that if amendment 37 is agreed to, I cannot call amendments 9 and 77, which will be pre-empted. However, if amendment 9 is agreed to, it does not pre-empt amendment 77. I have already failed this test, but we will see how we get on.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I have made it clear on earlier occasions—I repeat it today—that the Executive is committed to the timely and effective implementation of the Freedom of Information (Scotland) Bill. To that end, more than a year ago the Executive established a cross-sector FOI implementation group to begin early thinking about matters such as training and structures and to listen to the experience of those who implement FOI legislation in Ireland and the UK. I recently received the group's first annual report, copies of which are in the Scottish Parliament information centre. The report is also available on the Executive's website. The setting up of that group hardly betrays the actions of an Executive that is not serious about effective implementation. We must also bear it in mind that implementation means not only implementing the terms of a statute, but promoting a culture of openness.

As a result, I ask members to note that the provision in section 72 simply provides a backstop to the period within which full implementation of the act throughout the whole Scottish public sector is to be achieved. Implementation will begin earlier than that backstop; however, we are not discussing the shape of the implementation programme, which will need to be discussed with the Scottish information commissioner once he or she is appointed and gets his or her office operational.

I draw to Parliament's attention the provision, in section 72(3), that

"During—

  1. that period of twelve months which begins with the date of Royal Assent; and
  2. each subsequent period of twelve months until all the provisions of this Act are fully in force,
the Scottish Ministers are to prepare, and lay before the Parliament, a report of their proposals for bringing fully into force the provisions of this Act."

We want to retain a degree of flexibility for all concerned, and particularly for the commissioner, who will play a key role in facilitating implementation, producing guidance on the act and publication schemes, and approving the schemes that are prepared by authorities. Publication schemes are a novel concept to us in the United Kingdom and Scottish FOI regimes, and making comparisons with implementation tables elsewhere is unfair.

In a number of other countries, existing officers—in many cases, ombudsmen—would have been given the role of information commissioner. It was the wish of this Parliament—a wish that I was quite willing to propose—that we should have a fully independent commissioner. That commissioner will be appointed on the nomination of the Parliament, which naturally means that his or her office will not be established as swiftly as it might have been had ministers selected the commissioner and told him or her where to site the office. That is a small price to pay for ensuring independence, but it means that the commissioner cannot get off to a flying start, because only when the bill is passed will the Parliament be able to get on with the job of nomination.

It would therefore be foolhardy to constrain artificially the period within which the commissioner will set up his or her office and recruit and train staff. It would also be foolhardy to constrain artificially the options for devising and executing an effective implementation strategy. It would be wrong to deny ourselves and the commissioner the opportunity to learn lessons from other countries, such as Ireland, which had a commissioner in place and began a phased roll-out of its act 12 months after enactment. Indeed, Ireland is continuing to this day to bring the act into force by order for groups of authorities.

The suggestion has been put about in some quarters that Ireland implemented fully its Freedom of Information Act 1997 within one year, but that is simply not the case. By 21 April 1998, Irish Government departments and their bodies had implemented the act. By 21 October 1998, Irish local authorities and health boards had implemented it. By 21 October 1999, voluntary hospitals and health bodies complied with the act's provisions and, by 21 January 2001, state industrial bodies also complied. By 1 October 2001, educational establishments had implemented the act and, by 1 June and 1 November 2002, 38 more bodies are due to have implemented it, including the Irish Legal Aid Board, the Irish Film Board and the fisheries boards.

The three-year backstop that is proposed by amendment 9 would place an unacceptable constraint on our options to devise with the commissioner effective implementation of the act throughout the Scottish public sector. Agreement to amendment 9 would preclude the flexibility that would take account of the views of the commissioner on whether implementation might be achieved in that time frame. The one-year backstop that is proposed by amendment 77 would plainly be nonsense. It would be unreasonable and irresponsible to bring the act into force irrespective of whether the commissioner was in office with trained staff, with guidance prepared and with all publication schemes approved.

Amendment 37 is the Executive's substantive amendment and the other amendments in the group are consequential. Taken together, the Executive's amendments provide a reasonable period for implementation. Assuming that the act got royal assent in May, implementation would take about three years and seven months, as a backstop, but that would provide a reasonable period in which we could complete timely and effective implementation without it being overly long.

Photo of Dennis Canavan Dennis Canavan Independent

I am a bit concerned about amendment 39, which will allow phased commencement for different persons or groups of persons so that, temporarily at least, people will not be equal under the law because the act will apply to some people or groups but not to others. That could lead to accusations that there is one law for them and another law for the rest of us, which would be unfair. What exactly does the Executive have in mind with regard to different people coming under the law at different times?

Photo of Jim Wallace Jim Wallace Liberal Democrat

As I have indicated in describing the implementation of the Irish act, people in Ireland have found that it was a positive experience to roll out implementation rather than to have what might be described as a big bang, not least because of the importance of training. Those who have skills in training public bodies can move from one set of public bodies to the next to ensure that, when a public body is brought under the ambit of the freedom of information regime, that body is properly geared up for that.

We have not taken any view as to whether we should go for phased implementation or the so-called big bang approach, but the provisions in amendment 37 permit that choice to be made. The view of the commissioner will be important but, as we currently do not have a commissioner, we are not in a position to hear his or her view.

Amendment 37 takes account of concerns that have been expressed and recognises the unique position of a fully independent commissioner. The amendment strikes the correct balance and recognises the independence of the commissioner, but puts in place a reasonable backstop to stop backsliding on full implementation.

I move amendment 37.

Photo of Michael Matheson Michael Matheson Scottish National Party

When the Justice 1 Committee considered the issue, it was not persuaded of the Executive's need for a five-year period of commencement. Although I welcome the Executive's amendment 37, I am not persuaded that there is even a need for a commencement period of three years and seven months.

At stage 2, I lodged an amendment whereby the commencement date would have been in two years, in line with the recommendation of the Justice 1 Committee's stage 1 report. At that stage, ministers were not persuaded by the argument. I recall from the discussion in the committee that members felt that the Executive had not put forward a strong argument against a two-year commencement period and that it was probably more in favour of three years. I therefore lodged an amendment that would have allowed a three-year commencement period, which would have been more than enough.

The minister referred to the Irish experience of the introduction of a freedom of information act. I notice that the freedom of information act in New Zealand came into force within seven months, in Australia it came into force within nine months and in Canada it came into force within 12 months. I cannot see why we have to opt for three and a half years for implementation in Scotland. That makes it seem as though we find it difficult, for some reason, to implement the legislation.

I see that the Deputy Minister for Justice is shaking his head in disagreement.

Photo of Michael Matheson Michael Matheson Scottish National Party

I will make my point first.

The minister should have listened to the evidence that was provided by the Convention of Scottish Local Authorities, which represents the public authorities that are probably going to be most affected by the legislation. COSLA stated that a year would be sufficient for local authorities to prepare for implementation. I see no reason why we need more than three years.

Photo of Richard Simpson Richard Simpson Labour

I was shaking my head for two reasons. First, the freedom of information bills in the countries that Michael Matheson mentioned had much narrower remits, so those countries were able to introduce their legislation more quickly. Secondly, the major point is that if COSLA said in front of the Justice 1 Committee that it could implement the provisions of the legislation in a year, it should implement the provisions within a year. Amendment 37 provides a backstop. If COSLA can bring implementation in in a year, it should do so, but not all authorities will be able to do so. The commissioner must have time to draw up the publication schemes.

Photo of Michael Matheson Michael Matheson Scottish National Party

Given that COSLA representatives stated before the committee that a year would be sufficient, can I take that as an assurance from the minister that, from the day of royal assent, local authorities will implement the provisions of the legislation within a year?

Photo of Jim Wallace Jim Wallace Liberal Democrat

Michael Matheson has missed the point. If, as I believe is essential—I think that the Parliament agrees—we are to have an independent commissioner, it would be perverse, wrong and subject to considerable criticism if ministers were to pre-empt the work of the commissioner by arranging a place of work, employing staff or arranging for staff training.

Many of the countries to which Michael Matheson referred already had a person in place. Given that we have to appoint a commissioner and that or she has to set up an office and train staff, it would be unreasonable and would impose inflexibility if we did not allow more time. That is why I cannot say that implementation will be done within one year. That is very much a matter for the commissioner, who must act independently of ministers.

Photo of Michael Matheson Michael Matheson Scottish National Party

I have not missed the point; rather, I do not accept the minister's point. If he considers the discussions that took place within the Justice 1 committee, he will see that we were not persuaded by his arguments. That is why the committee recommended that the legislation should commence two years after royal assent. That was the recommendation in the Justice 1 Committee's report. During the committee's stage 2 deliberations, when the minister was not willing to accept two years, it appeared that three years would be the compromise. We see that the minister is not even able to accept that today. I hope that members recognise that three years is more than long enough to implement this legislation.

Photo of Robin Harper Robin Harper Green 6:00 pm, 24th April 2002

Michael Matheson made most of the relevant points. The difference between us is that I want one year, rather than a two-year implementation period. A one-year period would be in line with practice around the world and with the principle of openness that was set up by the Scottish Parliament consultative steering group. If, as proposed, the enactment of the bill is delayed, the people of Scotland will have been without access to information for seven years, from the date that the Parliament first met. I urge members to ensure that Scotland's freedom of information regime is not delayed unduly. Three years and eight months is an undue delay. I urge members to vote against amendment 37 and for either amendment 9, which is in the name of Michael Matheson, or amendment 77.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Although I accept the minister's argument about the time that is required for the appointment of the commissioner, and to allow him or her to get organised and staffed up, I would like an assurance from the minister that pressure will be put on all Government departments to come on-stream as soon as possible and that departments will not hang back for the three and a bit years. Similarly, I hope that pressure will be put on—or encouragement given to—local authorities and other bodies to come on-stream as soon as possible. Government departments are in ministers' hands. Will the minister give an assurance that those departments will come on-stream as soon as is practical?

Photo of Christine Grahame Christine Grahame Scottish National Party

I remind the Minister for Justice that the Justice 1 Committee's stage 1 report recommended that the public authorities—which have listened to the debate for long enough—should

"already be getting themselves into a state of readiness for the freedom of information regime and that implementation should be possible within a maximum of two years of royal assent."

The problem with backstops is that people use them. We are all guilty of that. Speaking personally, if I have until a certain date to complete a tax return, I usually do it on that day or the day before. The problem with amendment 37 is that it will create a longer implementation period. It is important that the regime is introduced as soon as possible because the Parliament promised a new culture of openness and accountability—which I wait to see. We should move the agenda along. For that reason, I will not support amendment 37, but I will support amendments 9 and 77.

Photo of Jim Wallace Jim Wallace Liberal Democrat

There is not much to add to what I said earlier. I remind Christine Grahame that, whatever the Justice 1 Committee said at stage 1, she used her casting vote at stage 2 to retain the five-year period in section 72, although I think that that was by the default of the status quo.

The Executive has taken action. I do not want to over-elaborate the point. The implementation period is a cost of having an independent commissioner and it is well worth paying that cost to have independence. Public bodies will not decide for themselves when they come on-stream; ministers will decide the order of commencements. It is not even a matter of cajoling or—to use Donald Gorrie's word—encouraging public authorities. Ministers will lay the orders. They will do so after proper consultation with the commissioner.

On the public bodies for which ministers are responsible, I will not only give an assurance, but point to the fact that a working group that is developing training strategies has been in place for more than a year. The work of the group is available on the Executive's website. Using the powers and opportunities available to us, we are encouraging a culture of freedom of information. We are trying to ensure that the measures are in place to allow us to respond quickly.

I do not accept Robin Harper's point that people will have had to wait seven years to get any kind of information. He confuses the date of commencement with the backstop. We intend amendment 37 to be a backstop provision. Although it is important that we take into account the views of the independent commissioner, we are doing what we can to encourage early implementation.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 37 be agreed to. Are we agreed?

Members:

No.

Division number 22

For: Aitken, Bill, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, 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, 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, McIntosh, Mrs Lyndsay, 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
Against: Adam, Brian, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, 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, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 79, Against 29, Abstentions 0.

Amendment 37 agreed to.

Amendments 38 to 41 moved—[Mr Jim Wallace]—and agreed to.