Seòmar agus comataidhean

Commissioner, before you move on to the rest of the potential scope of consultation or, indeed, legislation, I will ask about the section 60 code of practice, although I have to admit that I am no expert on it. Maybe I will read it out, because it is in front of me, but I now know that it exists. Is there a need for greater clarity?

Referring to the “Hancock clause” was a glib comment. I have no desire in the slightest to defend Matt Hancock, but I will make a serious point. I can imagine people who are in positions of power wanting to communicate quickly and freely with a range of officials and stakeholders in very short and condensed formats, just for speed. They need to be really careful about what they put on those platforms, because not everything is captured in a text or an abridged WhatsApp message. It is not just about having shining, absolute transparency about what people in power are really thinking; it is also about making sure that people who are in power are very clear about expectations. With that caveat, do we need clarity? Does that code, which I now know exists, need to be clarified or updated?

Thank you for your evidence so far, which has been really helpful.

At the start of your contribution, you mentioned that we are going through a period of change. At some point, you will demit office, and we wish you well for the future when you are no longer in office. It is a day for changes.

I do not want to misinterpret what you are saying, commissioner, but it is almost as though you are saying that the Government and the Parliament should take a considered and almost incremental view of how we can extend FOI on a sector-by-sector basis by considering the implications, getting the balance right in each sector, and implementing changes accordingly rather than looking at everything all at once and trying to legislate in haste. We have to consider the evidence that we have heard this morning, and I do not want to misinterpret or analyse incorrectly the points that you are making.

We are not trying to get rid of you early. [Laughter.] Mr Mountain was suggesting that this is your last day; I was not doing that.

There are other transitions. The Scottish Government has been consulting on changes to freedom of information. A number of changes have been suggested—for example, a change to the number of organisations that are subject to FOI; a change to the use of section 5 of the Freedom of Information (Scotland) Act 2002 to add bodies to the list; and the introduction of a gateway clause by which third party organisations that fulfil public functions and currently avoid FOI could be brought into its gambit. There are quite a lot of potential changes. I understand that an update to the section 60 code of practice to provide guidance for informal communications such as those on WhatsApp and whether those should be subject to FOI—what I might refer to as the “Hancock clause”—is also potentially within the scope of the changes.

Quite a lot is within the scope of the consultation. I am not necessarily trying to draw you on your views on those things, commissioner, but did the Government get the scope of the consultation just about right? Do you have any other reflections, not on the Hancock clause in particular, but more generally?

That is incredibly helpful, but I want to be sure that I do not misinterpret that. The current situation feels very process driven. It seems that people say, “I’ve got a policy, I’ve got a document, I’ve got a process. It’s published, it sits there, I’m compliant—tick. Let’s move on and brace ourselves for what requests come in now. We’ve got a policy for how we process those requests” as opposed to turning the whole thing on its head and saying, “We’re an open public body. How are we going to actively publish the information that we think is in the wider public interest to have that transparency?” I want to be sure that I have captured that correctly, because the committee will need to consider the evidence that we have heard this morning.

That is helpful. I apologise for cutting you off in full flow. You were going to talk about the rest of the scope of the consultation.

That is very helpful. I understand that you made a specific recommendation in relation to the report by the Public Audit and Post-legislative Scrutiny Committee in session 5. You said that you would like to replace the current requirement for a public authority to maintain a publication scheme with a duty to publish information. I am keen to know the difference between those. I know that the duty would be supported by a legally enforceable code of practice. It would be helpful for the committee to know the distinction between the current requirement and a duty and the difference that that would make.

Can I check whether the Lord Advocate’s guidance will be updated?

No, not on that.

I am not sure whether Mr Hogg wants to come in, but that point leads nicely into my final question, so I will ask it now, and Mr Hogg can reflect on both issues.

When the committee initially spoke about this in private, one of the things that we grappled with was that 16 and 17-year-olds who are not currently on supervision orders can theoretically still be referred to the children’s reporter. Although there is no presumption that they will be referred, in theory, they can be. Can witnesses confirm whether that is the case?

I checked again on the Scottish Government’s website before asking that question, and it says that they can still be referred to the children’s reporter. That might happen only in specific circumstances, but they can still be referred. They do not have the protection of not being kept in a cell or being unable to waive the legal right to a lawyer, and safeguarding protections might not exist, but my understanding is that they can still be referred to the children’s reporter. Does that happen or am I wrong?