Seòmar agus comataidhean

Good morning. What is your understanding of the main benefits of the new rules on remedies for breach of contract in part 2?

Obviously, if you want to write to us further on that, that will be very helpful.

The only new designations that would automatically take place as a result of the bill would be those under section 3, on publicly owned companies. People can already make FOI requests about those companies, but any requests would have to be made to the public body that owned the company in question. We hope that there will be savings, because it will no longer be necessary to go to the parent body, which would otherwise have to retrieve the information from the publicly owned body and then provide it to the member of the public or whoever made the FOI request. In drafting the financial memorandum, we looked at those organisations. We costed in that there may be a cost for the publicly owned body, but we hope that that cost would be transferred from the organisation that owns it.

The evidence that the committee has heard and, indeed, the evidence that was put before me is that there is a very wide range of views and evidence on the cost of an FOI request. The amount that different organisations spend varies tremendously. Sometimes, the cost is said to be related to the efficiency of the organisation’s systems and the amount of resource that it decides to put into FOI compliance.

The policy intention behind the bill is to reduce cost, and we hope that that will happen through standardisation and the codes of practice. However, we recognise that when there is a designation of a new body—it could be a very large body—there will be costs for that body, and we have outlined those in the financial memorandum.

In general, those costs will not be borne directly by the Scottish Government; they will be borne by the new body. That body might be a multinational company, a third sector organisation or a charity. It could also be a private body—for example, it could be a privately owned care home, if the Parliament decided to go down that path. However, all those matters will be looked at by the Parliament when the Scottish ministers come forward with a recommendation for a designation or, indeed, if the Parliament decides to use the designation mechanism that is proposed in the bill.

That is a bigger question. Why Governments do not always act as quickly as they could is not a party-political question. I suppose that they listen to stakeholders from all sides and always face pressures not to act as well as pressures to act. It is difficult to explain why decisions are taken not to act, but I presume that it is because matters are complex.

You have heard evidence about stock transfers. When council houses moved to housing associations and other bodies, there was a loss of rights and it took 13 years for those to be brought back. There has been a loss of rights in many sectors, such as when there was outsourcing in the justice sector—there is no sign of those services coming back to being run by the Scottish Government. Rights have been lost and political decisions have not been made to maintain those after services have been transferred.

As you have heard in evidence, ScotRail is now back in public ownership, because of which we have FOI rights again. Designation does not seem to have been significantly onerous for that body. The housing associations and other bodies that are now required to comply with the legislation receive only a relatively small number of requests.

It would strengthen the commissioner’s position and help to drive the bill’s intention, which is to ensure transparency, accountability and openness. Part of the reason is to ensure better use of the public pound and better public policy.

I fully recognise those points, which would be a matter for the committee system. Presumably, something would have to be seen by the committees as a political priority. In the aftermath of Covid, care homes might have been considered a political priority and an area that a parliamentary committee would identify to launch an inquiry into, whereas that is far less likely to happen for areas on which there is perhaps less public attention.

My proposal is to make available an additional mechanism, which would strengthen the role of the Parliament to hold the Government to account.

Do you mean the section 5 reports to the Parliament?

It could be in standing orders. It might be something that the relevant committee would look at. For example, in the case of a large sector, the committee might have a view on the timetable for implementation. In the case of a single body and a relatively discrete matter, the committee might take the view that implementation could happen either immediately or very quickly—say, within a month, three months or six months. I do not think that it would be appropriate to put that in the bill, because it would depend on the designation.

I thank the committee for allowing me to appear today and for the work that you are undertaking to scrutinise this member’s bill. I also take the opportunity to thank all those who have engaged with the process: those who responded to both consultations, those who attended events, those who met me to discuss the bill and those who have taken part in the committee’s proceedings. In particular, I thank Carole Ewart, from the Campaign for Freedom of Information in Scotland, who has worked with me throughout the process, and the Scottish Information Commissioner and his office, who have worked with us on some of the details.

The bill attempts to bring together work that has been carried out over a number of parliamentary sessions and the recommendations of the four Scottish Information Commissioners who have been appointed since the Freedom of Information Act (Scotland) Act 2002 was enacted. The bill contains a set of specific technical proposals, which have considerable support; it also makes provision to give the Parliament a power through its committee system that could lead to a parliamentary vote to designate a body.

The Public Audit and Post-legislative Scrutiny Committee’s review of the 2002 act, which was conducted in the previous parliamentary session, made recommendations that are included in the bill, such as the introduction of a “pause the clock” mechanism and recommendations to ensure proactive disclosure in a more systematic and accessible format for the public.

Successive Information Commissioners have consistently recommended modernising the operation of FOISA, including expanding FOI coverage to more public functions, improving record keeping and information management, and enhancing the commissioner’s power to ensure compliance.

The bill is also a recognition that rights have been lost in many sectors due to outsourcing. My bill seeks to reflect on the practical recommendations that have been made, and we have attempted to respond to, and reflect in the bill’s provisions, the issues that have been raised by stakeholders during the process. I had a number of meetings with the former minister during the process.

Carole Ewart and I are happy to answer questions.

I will focus on the issues that you specifically mentioned.

People have argued, over many years, for proactive publication, and it has been recommended by Information Commissioners and other stakeholders who work regularly with freedom of information. The proposals around proactive publication are also based on what has happened in other jurisdictions. The view is that, although the 2002 act was framed with the best of intentions, the reality is that the publication schemes have not worked. The proposals have been developed over many years, and there is a great deal of consensus around them among those who are interested in and engaged with the issues, who see them as a more effective way to take things forward. In particular, all four Information Commissioners support the proposals in the bill. We have moved forward on the basis of that consensus among all the stakeholders, who tend to be people who are quite actively involved in FOI.

On the new offence, I heard last week’s evidence. The new offence is in addition to offences that are already on the statute book but that are very rarely used. It is hoped that the offence will have a deterrent effect—that is how it was envisaged. It has been proposed as a result of a specific set of circumstances, but it is hoped that it will never be used. Basically, it deals with a loophole that has been discovered. Again, the proposal has the full support of the Scottish Information Commissioner’s office. Indeed, we worked with it on this and other parts of the bill to ensure that they were drafted in a way that was workable for that office.