Official Report 243KB pdf
The next item of business is a debate on motion S6M-20815, in the name of Katy Clark, on the Freedom of Information Reform (Scotland) Bill at stage 1. I call Katy Clark, the member in charge, to speak to and move the motion.
14:26
It is almost 25 years since the passing of the Freedom of Information (Scotland) Act 2002, also known as FOISA. My bill is not a criticism of that act, which has been a great success. Indeed, the same voices who campaigned for that legislation have been campaigning for the bill, such as the Campaign for Freedom of Information in Scotland and the late Jim Wallace—a prominent freedom of information campaigner who took FOISA through the Scottish Parliament.
In May 2020, as a result of campaigning for freedom of information reform along the lines that are being proposed today, the Standards, Procedures and Public Appointments Committee produced a report with a range of recommendations and concluded that, although the 2002 act had significantly improved transparency, an urgent update of the law was needed. The provisions of the current bill were based on that committee report, the recommendations of all four Scottish Information Commissioners who have held that post since the 2002 act was passed, the consultation on the proposal for the bill and previous consultations.
The bill reflects proposals from freedom of information campaigners, FOI practitioners and the Information Commissioners. The bill would close loopholes, strengthen the power of the Information Commissioner and address the reduction in freedom of information coverage that has taken place since the 2002 act. Significant work has been carried out with the Information Commissioner, his policy and legal experts and others to ensure that the bill is workable.
I understand the concerns that have been raised about parliamentary time, but my concern is that no proposals have been brought forward by the Scottish Government since the 2020 committee report. I fear that, if the bill fails to pass stage 1 today, we will have the same debate again in five years’ time, still with no proposals forthcoming from Scottish ministers.
Whether it is in local government, justice, transport or social care, private companies have increasingly become major providers of public services, but they are not covered by current freedom of information laws. For example, when ferry services are publicly owned and funded, they are covered by freedom of information legislation, but that is not the case when they are publicly funded but run by private providers such as Serco NorthLink Ferries. Council house issues were previously subject to freedom of information but, when council houses were subject to stock transfer to bodies such as housing associations, that was no longer the case. It took 13 years of campaigning before information rights were reinstated by the current minister.
In most other areas, rights that have been lost over the past 25 years still have not been reinstated. The Public Audit and Post-legislative Scrutiny Committee in the previous session of Parliament and the Standards, Procedures and Public Appointments Committee, in its stage 1 report on the bill, were right to conclude that
“legislation is now needed to update the freedom of information regime in Scotland”
and that the Scottish Government has been slow to exercise its powers under the 2002 act.
The Scottish Government has been asked to introduce legislation over a number of sessions of Parliament, but it has failed to do so, which is why I introduced this member’s bill. I was approached in 2021, when I was first elected to the Parliament, and asked whether I would proceed if the Government would not.
I welcome the Standards, Procedures and Public Appointments Committee’s support for some of the bill’s provisions. It supported a requirement for the Scottish Government to consider proposals from the Scottish Information Commissioner to extend the number of bodies that need to comply with freedom of information law.
Does Katy Clark agree that the Government could have taken on the bill, as it could with any member’s bill? It chose not to, which shows that it has no appetite for this.
I fully agree with that.
The committee backed bringing companies that are jointly owned by the Scottish Government and other bodies into the scope of freedom of information law and recognised that the First Minister’s veto power is unnecessary. Of course, the First Minister has refused to rule out using the veto in relation to various current court cases. The committee recognised the benefit of other provisions in the bill, such as those on statutory freedom of information officers and greater enforcement powers for the Information Commissioner.
The bill includes provisions that were recommended by the Public Audit and Post-legislative Scrutiny Committee in the previous session of Parliament on a legal duty for proactive publication. That is in line with best international practice, was recommended by all four people who have held the post of Information Commissioner and is in accordance with codes of practice that are provided by the Information Commissioner.
The bill includes a new offence of destroying records with the intent to prevent disclosure before a freedom of information request is made. That provision mirrors existing offences that relate to the period after a freedom of information request has been made. That power is needed and is supported by the Information Commissioner, but it has a high test of criminal intent and would be used only in extreme cases.
The bill would also enable the Parliament’s committee system to act when the Scottish Government fails to do so. For example, that would mean that, if the Scottish Government failed to introduce proposals to extend freedom of information law to the whole care sector or, indeed, parts of it, or even one or two organisations, a committee could make proposals on that.
I look forward to hearing members’ contributions. I will address some of the other issues that are connected with the bill, such as that of costs, in my closing speech.
I move,
That the Parliament agrees to the general principles of the Freedom of Information Reform (Scotland) Bill.
14:33
Freedom of information is not an abstract constitutional principle; it is the cornerstone of public trust in Scotland’s institutions, and it is how people understand what their Government is doing, how decisions are made and whether power is being exercised responsibly. However, despite clear and compelling evidence that our freedom of information framework is outdated and has been outpaced, the Scottish Government has consistently failed to modernise it.
The Standards, Procedures and Public Appointments Committee could not have been clearer: there is a need for FOI reform. The original 2002 act was designed for a totally different era—before digital comms, before arm’s-length organisation service delivery and before the complex landscape of publicly funded but not publicly listed bodies. The world has moved on, and Scotland’s FOI regime has not kept pace.
What we have witnessed from the Scottish Government over recent years is a refusal to accept that reality. Ministers insist that the fundamentals are still fit for purpose, yet we heard the Information Commissioner describe the pace at which they are bringing new bodies under FOI as “glacial”. Stakeholders told us that the publication scheme is outdated and ineffective. Public functions remain exempt simply because they sit outside traditional structures. None of that is fit for purpose.
Freedom of information is supposed to empower the public, not exhaust them. It should encourage transparency, not create barriers to it. I give credit to Katy Clark for taking on the work, because nobody else had any appetite to do so. She has done so because the Scottish Government has simply chosen not to. Although it is true that many elements of the bill need further refinement—that is a euphemism—the need for reform is not in dispute. It is urgent, overdue and undeniable.
We, in the Conservatives, find ourselves between a rock and a hard place today. The stage 1 report sets out the substantial and complex work that would be required to make the bill fully workable, future proofed and comprehensive, and the time that is left in this parliamentary session is extremely tight. Some might call it legislative constipation.
At the same time, constituents are watching. One wrote to me to say:
“It feels like every time FOI comes up, Parliament asks for more time while the law gets older and weaker.”
The frustration is real, and it reflects a wider public concern that delay looks a lot like protecting the Government from scrutiny.
I have lodged an amendment that reflects the reality that is before us. It would mean that, if Parliament agreed to the principles of the bill, we would also recognise
“the time pressure in the current parliamentary session and the views in the stage 1 report, including that Freedom of Information reform”
might ultimately need to be addressed in the new parliamentary session. That is not backing away from reform; it is being honest about the scale of the task ahead.
Let me be clear that the Scottish Conservatives will vote for the bill at stage 1. We will do so because the principles are sound and because Scotland cannot afford more drift. However, supporting the principles does not erase our concerns, and we are deeply worried about the sheer length of time and the level of work that will be required to resolve the issues that were identified by the committee. Progress must be real and not symbolic.
The public are watching the debate more closely than some in the chamber might realise. They demand transparency, not excuses. They expect us to strengthen their right to know, not to circle the wagons and shield the Scottish Government from scrutiny. The truth is that, every time FOI reform is delayed, resisted or redirected into yet another holding pattern, it reinforces the perception that those in power are more interested in protecting themselves than in serving the public interest. People can see the Government dragging its heels. They can see the areas in which loopholes remain open and enforcement powers remain weak, and they can see when proactive publication is discussed but never delivered. They rightly ask why, if we believe in openness, we will not modernise the law that guarantees it.
Let me be clear: this Parliament has a duty not to ministers or departments but to the people of Scotland. They are entitled to a system that is modern, transparent and future proofed. They are watching what we choose to do today, and they will judge us not on our words about transparency but on whether we deliver it for once.
By supporting the bill and my amendment today, while being frank about the reality of what remains to be done, we keep the pressure on the Scottish Government. We send a clear message that FOI reform cannot be allowed to drift into irrelevance, and we reaffirm that the public’s right to know must be strengthened, modernised and defended, both now and in the next parliamentary session.
I move amendment S6M-20815.1, to insert at end:
“, but, in so doing, highlights the time pressure in the current parliamentary session and the views in the stage 1 report, including that Freedom of Information reform should be addressed in the next parliamentary session.”
14:39
I rise as convener of the Standards, Procedures and Public Appointments Committee. I thank everyone who contributed to the committee’s scrutiny of the bill at stage 1. We had the opportunity to hear from academics and public bodies, and from information requesters and those who respond to them. We heard from the Scottish Information Commissioner, the minister and Ms Clark, the sponsoring MSP for the bill. In this speech, I will set out the committee’s main conclusions on the bill.
The bill proposes alternative mechanisms for designating public bodies under the Freedom of Information (Scotland) Act 2002 on the basis that the Scottish Government has been slow in using its powers in that regard. That view was shared by many stakeholders, with the commissioner describing the pace of designation as “glacial”. The committee had no concerns about providing for the Government to consider the commissioner’s proposals on designations. However, we had reservations about the proposals for the Parliament to have the power to designate. In our view, the process for using such a power has not been sufficiently considered or laid out in the bill, so we cannot determine whether the power would deliver a faster pace of designations or lead to more designations.
Similarly, greater detail is needed on the proposal for the Parliament to scrutinise the Government’s section 5 reports on designation.
Several of the bill’s provisions are aimed at improving compliance with information requests. The bill proposes that the limit of 20 working days for compliance be paused, rather than reset, when a public body seeks a clarification. We heard that some requesters might have experienced clarifications being used as a delaying tactic, but there is a lack of data to determine the extent of such practice. Although some stakeholders thought that the proposal would improve the relationship between public bodies and information requesters, others cautioned that it could lead to poorer responses and have an impact on front-line services. We think that further detailed work is needed to assess the impact that such a change might have.
Although we saw merit in the proposals for providing the commissioner with greater powers, particularly the power to require individuals to give evidence, we thought that such matters also required more detailed consideration by the Scottish Government. However, we were not persuaded by the Government’s argument that the First Minister’s veto power should be retained, because other safeguards exist regarding the disclosure of sensitive information.
The bill intends to promote a broader cultural change in public bodies towards greater openness and transparency. Provisions such as those introducing proactive publication, requiring authorities to create a statutory FOI office role and introducing a new offence relating to the destruction of information could all be seen as part of such cultural change. However, we had concerns about whether the bill could deliver that change.
We note the arguments for the presumption in favour of disclosure in section 1, but the necessity and material effects of the change are unclear, given that stakeholders noted that there is already such a provision in FOISA.
Furthermore, although we agree that introducing a proactive publication duty would reflect the original intention of FOISA, we note the concerns of stakeholders about the potential costs and challenges of the proposal. Again, we think that further consultation is required. We found the financial memorandum to be largely speculative on the potential for the proposal to lead to savings.
We did not think that the section 18 proposal to create an offence of destroying information with intent to prevent disclosure in the absence of an information request was an appropriate or proportionate approach to delivering cultural change.
Freedom of information reform is a substantial and complex endeavour. The work that Ms Clark has done on the bill has been incredibly valuable in highlighting the need for the freedom of information regime in Scotland to be updated. However, given the need for greater development of many of the bill’s provisions, we do not think that the bill is the most effective vehicle for delivering that change. Instead, the committee considers that the Scottish Government should use its resources to take legislative action to update freedom of information law. If the Government is unwilling to do so, we suggest that a committee bill might be required in the next parliamentary session.
We agree with the need for freedom of information reform, but, for the reasons that I have set out, we do not recommend that the Parliament agrees to the general principles of the bill.
14:44
In the extremely limited time that I have at my disposal, I will begin by acknowledging the significant contribution that Katy Clark has made to the debate on FOI rights and responsibilities. She is to be commended for ensuring that the Parliament has an opportunity to reflect on the successes of current FOI legislation and to debate areas in which improvements could be made.
I thank the Standards, Procedures and Public Appointments Committee for producing such a considered report. Although it found areas to support in the bill, it noted that there is not sufficient time in the current parliamentary session to carry out the substantial further work that would be required on it, as Sue Webber’s amendment acknowledges. That is why the committee recommended that the Parliament does not agree to the general principles of the bill. I accept that recommendation, just as I accept Sue Webber’s amendment, which makes the same point. As Minister for Parliamentary Business, I can testify to how busy the Parliament will be with finalising legislation in the five weeks that we have left.
I want to be clear, however, that the Scottish Government believes that the bill and the committee’s report provide solid foundations that will allow the Parliament to consider in the forthcoming session how it builds on freedom of information legislation.
Scotland has had strong—
Will the minister take an intervention?
Very briefly—if I get my time back, Presiding Officer.
Does the minister agree that the Parliament is not being asked to decide whether there is enough time to get the bill through? It is being asked to decide whether it agrees with the general principles of the bill, and that is all.
I am sure that Mr Simpson has been listening. If he listened to the points made by Sue Webber and the convener about the many issues with the bill, he would know that it would be impossible in the five weeks remaining in this session to undertake the tasks that have been laid out by the committee. That is the reality, and I am afraid that we have to deal in reality.
Scotland has had strong and internationally well-regarded laws on freedom of information for more than 21 years, and I pay tribute to Jim Wallace for his part in that. He transformed access to information about government and public services. Last year, more than 109,000 information requests were handled across the public sector, with 87.5 per cent resulting in the release of information. That shows that the legislation is delivering on its main purpose of providing information and developing a more open and transparent culture.
There are, of course, areas that can be improved on. FOI law has important strengths, but it is right that we consider areas for improvement. The extension of FOISA has been pursued far more actively in Scotland than in the rest of the UK. In 2013, coverage was extended to local authority culture and leisure trusts. In 2016, it was extended to grant-aided and independent special schools and private prisons. In 2019, it was extended to cover registered social landlords, bringing around 200 new bodies under FOISA. We are the only part of the UK to have done that. I acknowledge, as I did when Katy Clark raised the point at committee, that, much as a process is needed, it can be clunky at times. There are areas of the process that could be improved.
We are consulting on designating independent care homes and care-at-home providers, which would be the most significant extension to date and could mean that around 2,000 services that are delivered by around 1,000 different organisations would become subject to FOI law.
The committee recommended that today’s debate should be used to set out plans to prioritise designations beyond the current consultation. That will be for a new Government and a new Parliament. However, for my part, I can say that we would set out a programme of work for considering extension to private and third sector organisations that deliver public services, drawing on the issues that were raised in discussions on the bill and working with stakeholders, including the commissioner.
There is, of course, no question but that FOI obligations place demands on resources, so we must take a well-considered and proportionate approach and ensure that any extension does not duplicate work but will add meaningfully to people’s ability to access information without placing unreasonable burdens on organisations, particularly smaller organisations.
The Government is committed to strong FOI rights. We are consulting on the extension of the legislation and will lay a revised version of the statutory guidance for public authorities in the Parliament before the end of the current parliamentary session.
Again, I thank the committee and commend Katy Clark, who has restarted the debate on how we ensure that FOI legislation works well in Scotland.
14:48
It was the great French philosopher and civil rights campaigner Voltaire who warned:
“Don’t let the perfect be the enemy of the good”,
and that is the crime that we are being invited to commit in the Parliament this afternoon.
I have grown tired of members opting for inaction and mediocrity in place of action and ambition, or saying that we agree with these universal and immutable principles of democracy, of openness, transparency and accountability, but not here and not now.
We know that the provision of public services has become a mixed economy and that outsourcing is rife. It is because of that that, if we are to update our freedom of information, improve the statutory right of access to it, advance the proactive publication of how public money is used, defend public interest journalism and challenge the existing structure of power, we need to pass this reform bill today.
Bodies, including many transnational private corporations that deliver public services with public money, should be covered by freedom of information—of course they should. In fact, maybe that should be a condition of receiving public money or being awarded public contracts in the first place. Information, including data, should be published not just reactively but proactively. It is not a burden, it is not red tape, it is not an inconvenience or a distraction—it is a democratic right.
What we should have learned down the years is that our security and our wellbeing spring not from surreptitious secrecy but from open democracy, which is why many of us see this bill as an important antidote to the corrosion of trust in public life.
I am speaking in this afternoon’s debate as a Labour Party representative, but my experience as the convener of the Parliament’s Public Audit Committee is that there continue to be persistent data deficits and chronic information gaps right across the public sector in Scotland. When we conducted our inquiry into the ferries order at Ferguson Marine, we found that the Scottish Government’s record keeping, up to and including meetings taken by the then First Minister, left a lot to be desired. We now know as well, because of the Covid public inquiry, of the deletion on an industrial scale of communications by SNP Government ministers, up to and including the current First Minister.
The culture change that the bill will help to drive is not just out there; it is in here—and we know that publicity is the best disinfectant. To the Minister for Parliamentary Business and Veterans, who tells us that the bill is timed out, I say: what about the Government’s Covid emergency legislation, which we passed in a matter of days in 2020? What about the Government’s deeply flawed Building Safety Levy (Scotland) Bill? Why is the minister pressing ahead with that and finding the parliamentary time for it? Why is it that the Government can find parliamentary time to pass legislation to collect rates on empty properties in days but there is no time to modernise our freedom of information laws in weeks?
This is member’s bill in the name of Katy Clark, who is to be congratulated for getting it on the Parliament’s agenda and for winning the argument. Let me make it clear to the Government, which seeks to wreck this bill today, that there is a movement out there demanding these reforms. It is a movement made up of campaigners who will not go away. If Parliament does not pass this legislation tonight—if the Government kills the bill today—it will return. We will see civil rights advance. We will see the veils of secrecy torn down by the people. We will see the triumph of hope and democracy. We will see the people empowered.
14:53
It would not be a Richard Leonard speech if it did not begin with a quotation from a great philosopher. If I am lucky enough to be returned in the election I will miss those kinds of comments. I hope that somebody else will take up that tradition for him.
When discussing freedom of information, we sometimes suffer from a perception that FOI is still a new system or a new regime. It is clearly of the modern age but, as Katy Clark pointed out in the opening speech, it is nearly a quarter of a century since the system was designed. It was designed for an earlier era, both in terms of how public services are delivered and in terms of how modern data collection happens. I suspect that no one designing the FOI regime at the time would have been able to conceive of the sheer volume and breadth of data that public services now collect and have to manage—data that is now open to FOI.
The case for reform is therefore not new either. As Katy Clark mentioned, there were comments at the tail end of the previous session from the Public Audit and Post-legislative Scrutiny Committee, demonstrating
“clear weaknesses with the current legislative framework.”
Referring to the work of the Parliament in this session, the committee recommended
“that the next Parliament robustly pursues the Committee’s recommendations to ensure that the Scottish Government makes the necessary changes.”
Well, the Scottish Government did not make those changes, so I strongly commend Katy Clark for the work that she has done in introducing her member’s bill to try to move things along. I will certainly vote in favour of the general principles.
I thank Katy Clark for her work, and I thank the Government for engaging with me. As a member of a party that does not have a member on the lead committee, I took the time to engage with the member in charge and the minister. I thank the committee for its work, as well.
It is regrettable that a member’s bill was necessary to try to achieve progress; there was a general consensus that reform is needed, and it would have been better delivered if Government legislation had been introduced. However, the Government has been slow to act, both in bringing forward reform and in exercising the powers that it already has to extend FOI to other bodies. Of the various elements of the bill, the granting of that power to the Parliament, in addition to the Government, is one of the most important, along with the shift in focus towards proactive publication and measures to take action against the destruction of information.
As far as the amendment goes, I recognise the lead committee’s concern, particularly in regard to where we are in the past six weeks or so of the parliamentary session. We all understand why we have got to where we are and—I repeat—part of that is due to the Government’s slowness to act. However, I understand the Government’s concern about the need to have a system that balances the potential conflict of different legal duties. We would not want to pass legislation that made organisations unable to respect confidentiality, for example, or that would create a conflict between those duties and FOI duties.
We are where we are. I think that this will be a missed opportunity. It is fairly clear that the amendment is likely to have the majority of support in the chamber. I and my fellow Greens will abstain on it, but we will vote in favour of the motion, whether or not the amendment passes. It will be a missed opportunity, as the bill could have gone forward for scrutiny, if only to save time in the next parliamentary session.
Will Patrick Harvie give way?
I am afraid that I do not have time.
My party will make clear commitments. It is incumbent on every political party, including the SNP, to make clear commitments. If the SNP, reading the polls, expects to be returned as the Government in the next session, it will be particularly important that it gives a clear manifesto commitment about supporting a cross-party effort to bring forward the FOI reform that is so long overdue.
14:57
When trust in politics is pretty much at an all-time low, we should all be doing everything that we can to gain back that trust. It is a really bad look for any party, Parliament or Government to vote against extending freedom of information rights.
The stage 1 report on the bill concluded by saying that, although the committee agreed on the need for such reform—reform that should have happened years ago—it did not consider the bill to be the most effective way of achieving it. It also stated, as other members have, that we just do not have the time to do so. I completely disagree.
Scottish Liberal Democrats will be voting for the bill at stage 1. Why? It would provide a long-overdue and much-needed opportunity to make Scotland’s public bodies more transparent. Those bodies too often hide behind redactions and bureaucratic points about what is or is not covered under the current, out-of-date legislation. Last year, the Information Commissioner received nearly 600 appeals after members of the public were refused the information that they had asked for in FOI requests. Thirty per cent of those were because the public body chose to withhold information. A further 35 per cent were because the body failed to respond to the request at all, and 10 per cent were because the public body claimed that it did not even hold the information. That is ridiculous and disgraceful. Therefore, the new crime of destroying records that would be introduced by Katy Clark’s bill is much needed and would be very welcome.
The bill would resolve many of the outstanding issues with FOI legislation, not least because it would require public bodies to appoint a freedom of information officer who could be held to account for the openness and transparency of their organisation. This all matters, because FOI legislation gives the public, journalists and even we politicians the tools that we need to scrutinise public bodies in a way that no other method can, if we are honest about it, particularly when the parliamentary questions that we submit are responded to with one-line answers.
Mr Leonard spoke about the work of the Public Audit Committee. Some of the things that FOI requests have helped us to uncover have been on the front pages of newspapers for months. Those include the improper spending at the Water Industry Commission for Scotland, the golden goodbyes at Ferguson Marine and Caledonian MacBrayne, the cost overruns at the Cairngorm Mountain Railway and the credit card spending sprees at Historic Environment Scotland. All of that was uncovered under FOI, and Katy Clark’s bill will strengthen the ability of all committees and all members to properly scrutinise decisions, not least through its creation of a presumption in favour of disclosure.
I am not saying that FOI requests always give us good data. Pages 1 to 10 of the response to my latest FOI request about CalMac payoffs are all redacted. FOI is not the be-all and end-all, but underneath that black ink is information that we ought to have access to.
I am surprised by the Conservatives’ reasoned amendment, because all that it has done, whether they meant it or not, is hand the Government a get-out-of-jail-free card.
Will the member accept an intervention?
I just do not have time unless I can get it back, and I can see the Deputy Presiding Officer giving me a no to that.
I appreciate that Parliament will not have enough time to progress the bill during this session, but that is not Katy Clark’s fault; it is a problem with this Parliament and Government. I gently suggest that the Conservatives should withdraw their amendment or vote against it. I know that that is a bit unorthodox, but I have done it myself. It is a bit awkward, but it would be worth it on this occasion, because I want to see the bill progress.
I am going to finish where I started. It will take more than a bill to repair trust in public bodies, but killing off the bill today would send the public a message that we are simply not up to the challenge. That is not a message that the Liberal Democrats are willing to send, so we will support the bill and vote against the reasoned amendment, and I plead with all members to do the same.
We now move to the open debate.
15:01
I thank Katy Clark for the way that she has gone about the business of progressing her member’s bill.
Trying to sum up my thoughts on FOI in four minutes will be difficult, but I will be brutally honest. I should mention at this stage that I was the minister in post when Katy Clark originally published her bill and was at an FOI conference where I proposed my ideas about how we could move forward and she proposed hers.
My opinion, which I have shared before, is that the current FOI regime, which has been in place for 20 years, remains fundamentally sound. It provides a strong and enforceable right to know how the Government and other public services operate, while at the same time including safeguards to protect genuinely sensitive information. I have said those things numerous times before.
I say clearly at the outset that I am not against the idea of openness or the reform of FOI—some media outlets would probably have said otherwise when I was the minister, but that was a them problem and not a me problem. The question before us today, as many others have already said, is whether the bill, in its current form, is the right vehicle to deliver change and whether Parliament has enough certainty about what that would mean in practice across the public sector.
The evidence heard by the committee repeatedly returned to the central issues of cost, burden and uncertainty. The bill goes well beyond making small technical adjustments to introduce new statutory obligations across the public sector, including requirements for proactive publication—which, incidentally, I always believed that the Government should have done anyway. It also includes compliance monitoring and the appointment of FOI officers. Whatever the actual intention behind those proposals is, there would be real consequences for staffing, training, governance and digital infrastructure, and we cannot pretend that those consequences would just disappear into existing budgets.
In the material it provided to the committee, the Scottish Government set out its case that the 2002 act’s section 60 code of practice provides good guidance but that the bill would introduce new statutory duties that would go beyond current practice, including creating a new legal duty of proactive publication under the enforceable publication code and the designation of FOI officers with defined responsibilities. My argument is that we are at a stage where public organisations already have people who do that. We often talk about culture change in organisations such as the Scottish Government, local authorities or other FOI-able organisations, but in order to have that culture change we must get beyond the idea that that is an addition to the job. FOI is not an addition to the job: it is part of the job, it is something that you have to do and it is a legal requirement.
At the same time, however, we have to strike the right balance, so that we do not take people away from their core duties and core jobs. I know the challenge that the Scottish Government faced during my time in post in trying to ensure that we issued the required 95 per cent of FOI responses in time. What does not help is that we live in a political environment where we have the likes of Douglas Lumsden using artificial intelligence to generate around 1,300 FOI requests over four months. There were 987 in January 2025 alone, and that cost £185,000. That is the kind of thing that we have to be very careful about.
Nobody in the chamber should be satisfied with the status quo in areas where improvement is needed. However, the question is not whether we should reform but how we reform. We must do that with the evidence in front of us and with the costs properly understood, and we must do it in a way that strengthens openness and practice, and not just on paper. That is the responsible and workable approach, and that is why I will not support the bill at stage 1.
15:05
I begin by thanking my friend and comrade Katy Clark for taking up the challenge of reforming our freedom of information laws to be fit for the 21st century. The Freedom of Information (Scotland) Act 2002 was significant in that it gave everyone the right to obtain information held by public authorities, yet, as Katy has rightly highlighted, that law has not kept pace with the level of outsourcing to private companies of our public services. In effect, our right to know has been stripped back.
I will use buses as an example. In Edinburgh, the buses are owned and operated by Lothian Buses. Publicly owned Lothian Buses is the United Kingdom’s largest municipal bus company and, as such, it is rightly subject to freedom of information requests. Elsewhere, however, First Bus, which is owned by FirstGroup plc, is not subject to freedom of information laws despite receiving huge sums of public money. People who live outwith the capital have no right to know about their local bus services. The Parliament has a duty to change that.
However, it is not just bus companies that have been allowed to avoid public scrutiny. In energy, we have seen the vast majority of the money from the Scottish Government’s just transition fund siphoned off to the private sector. More than 40 per cent of that fund has gone to organisations that are linked to billionaire oil tycoon Sir Ian Wood, all while energy workers lose their jobs and are forced to pay out of pocket to retrain. Without this vital freedom of information bill, the public will have no right to ask questions about how that money is being spent. How can the Scottish Government justify that? What is it hiding? Who is it protecting? Is it not time that Scotland had a Government that will work in the interests of the people rather than those of big business, billionaires and barons?
The Covid pandemic exposed the hard reality of how few Government decisions across the world truly serve the people those Governments are supposed to represent. A harrowing example that brought that point home to many was the care home scandal. I highlight the tireless work of former MSP Neil Findlay, both inside and outside the chamber, on that issue. As members will remember, many people across the country spent their final days alone in care homes as part of a botched plan to free up hospital beds. Due to the outsourcing, bereaved families cannot make freedom of information requests regarding where their loved ones spent their final days, yet, if those people had remained in hospital, their families could have made such requests. That is another example of where the current FOI laws are simply not strong enough.
For victims, workers, the travelling public and many more, we need FOI reform. We need Katy Clark’s member’s bill. The Scottish Government clearly recognises that need, as it is now consulting on extending FOI to care homes. If it agrees that current FOI laws are inadequate and recognises the injustice that the public are facing in seeking crucial information, why on earth would it not support this timely bill today?
I commend the bill to Parliament and I thank Katy Clark for introducing it.
On a point of order, Presiding Officer. In her remarks, the member stated that Lothian Buses is owned by the council in Edinburgh. She may want to correct the record and state that it is actually owned by a number of local authorities. Thank you.
Thank you. That is not a point of order, but it is on the record.
15:09
I congratulate Katy Clark on getting the bill to this stage, but I have to say that I feel for her after what she must have thought was quite a negative report from the committee, which arrived at the conclusion that the Government should legislate in this area. As I said earlier in an intervention, the Government had the opportunity, as it does with all members’ bills, to take on this bill; it chose not to. The member proceeded because the Government did not. That is perhaps not surprising, because we have a Government that is addicted to secrecy, so it has chosen not to legislate in an area that could herald a new era of transparency.
The committee convener thanked Katy Clark for her valuable contribution. It has been valuable, but if we were to follow the committee’s advice and wait for the Government, and then potentially wait for the committee to do something, we could be waiting for years and years, and we could be at the end of the next session of Parliament before anything happens, so we really have to agree to the bill at this stage.
The policy memorandum sets out that
“The main aim of the Bill is to improve transparency in Scotland by strengthening existing measures in the Freedom of Information (Scotland) Act 2002”.
The committee agreed that there is a need for freedom of information reform—it agreed with that point—and surely we are here today to decide whether we agree with the aims of the bill rather than the details. I always understood that to be what stage 1 is about—the details come later. I can quite comfortably say that I agree with the general principles of the bill while having concerns about elements of it—at this stage, those concerns are not the point.
I have supported Katy Clark on this throughout. I have attended events put on by her and the Campaign for Freedom of Information in Scotland. George Adam, as he said earlier, was at one of those events, and it was at one such event in Glasgow that I met the late Lord Wallace, who was a strong supporter of what the member is trying to do.
The 2002 act came into force just over 20 years ago, so surely now is the right time to update it and improve its provisions. The bill addresses shortcomings in the current legislation that have been identified by campaigners, journalists and members of the public. We have the chance to end the years of secret Scotland and bring the country into the light of disclosure. Let us take it.
We move to closing speeches. I call Patrick Harvie, who has up to four minutes.
15:13
I may not use all of that time, Presiding Officer. I am not sure that I have a huge amount more to add beyond what I said in my opening speech, but I will reiterate that, if we do not progress with the bill, it will be a missed opportunity.
There is probably more consensus on the topic than some of the more extreme rhetoric might suggest. I know that there will always be those who think that the Government of the day is somehow overly secretive and corrupt and all the rest of that kind of stuff. That hyperbole is nonsense. I think that most of us know that it is nonsense. However, the current Government has been slow to act and it is regrettable that it has taken a member’s bill to try to move things on.
I think that there is consensus across the chamber that we need a regime that is fit for the 21st century—I think that that was the phrase that Mercedes Villalba used—and that the system that we have at the moment is not such a regime, whether that is in relation to the changing patterns around the outsourcing of public services, as was mentioned, and the scale of the data that is collected and the nature of that information, or whether that is in relation to the issues not just to do with our current use of AI but to do with what we will encounter as AI proliferates further through our society, which, again, will change the expectations and needs of the FOI regime.
In addition, I think that our cultural expectations as a society have been changed by the Covid-19 pandemic, among other things, and the whole inquiry process that came out of that. More people have reflected on, considered and changed their views on what information should be kept, and what information should not be allowed to be kept, about us as individuals and as communities.
What is the balance between transparency and confidentiality, and how can we have an FOI regime that ensures that the powerful are held accountable for the way in which they exercise their power? All those things have changed since the system was designed, and they will continue to change. That is why we need to enable the powers to adapt and continue to develop the FOI regime to be used more flexibly—and, I say again, to be used by Parliament, not just at a time when Government is ready. There will continue to be a tension between the urgency of action and the need to take time to consider all the details and issues that members have raised.
I close by saying again that, if this opportunity is missed and we are left with the expectation that a committee bill in session 7 is the vehicle for FOI reform, it must be taken forward with momentum. It will have to be a year 1 commitment, not a year 5 commitment, in the next session of the Scottish Parliament. I hope that the minister, in closing, will be able to give a clear commitment on behalf of his party. What will it be saying in its manifesto in a few weeks’ time about its commitments not only to legislate, if it is in government, but to do so on a cross-party basis across Parliament?
15:16
Patrick Harvie, in summing up, poured a bit of scorn on those who like to claim that the Scottish Government wants to be secretive or to sit on information. I gently say to him that that is almost certainly what a former minister would say, if I can be somewhat impish.
However, Patrick Harvie made a number of good remarks, and his point that, overall, there is a consensus about the need for reform and to update the legislation on freedom of information is absolutely correct. In that context, Katy Clark is to be congratulated on taking forward a bill that is not only important but very technical and not trivial in any respect. She deserves a great deal of credit for that, and I also thank the committee for its work.
At the heart of the matter is the question of what kind of Parliament, politics and Government we want, what we claim that we have and what we really have.
I think that the two most important contributions this afternoon came from Jamie Greene and Richard Leonard. Jamie Greene highlighted the reality for those who seek to gain information through freedom of information legislation. To be frank, most people find it a battle, given the constant stream of reasons why information cannot be revealed, and the swathes of paper; we are not allowed props in the chamber, but I caught a glimpse of what Jamie Greene was holding up. Huge amounts of toner are wasted on redactions for those who seek to print out documents. That is not good enough. To be frank, the FOI regime is in a state that means that people are losing trust because of the secrecy and the reluctance to divulge information.
Richard Leonard was absolutely right that it is about principle—in my view, two very important principles. The first leads directly to democracy itself. If we seek to have democracy, we must have openness and transparency, because after all, this is the public’s money: the money that they entrust to us to spend wisely. The only way in which the public can have trust and confidence is if they have clear transparency and openness on how that money is being spent.
Just as important is the question of how Government makes decisions on our behalf: how it understands those principles, the reasons and the information, and the way in which those decisions are being made. It is not just about secrecy; it is about good decision making. The ferries fiasco shines a great deal of light on that. The fact that it transpired that email chains were being used as evidence of decision making, with second-hand accounts of conversations being held with ministers, is not good enough, and we have to shine a light on poor decision making like that.
I commend the approach that has been taken in the bill—first, to follow the money, as it were, because, where public money is being spent, whether by the public or private sectors, we have to have accountability, and there has to be a presumption of disclosure. We must have frameworks that seek to proactively disclose information and remove exemptions, caveats and vetoes. That has to be the right way to proceed.
Today, it looks as though the Government may prevail in not allowing the bill to proceed, and that will be a great shame. The question for Parliament is how we want to proceed, because this work must proceed. I think that it would be an error for members to vote against the bill this afternoon. There may be a great deal of detail to be worked out, but at least it would be progress and something to be taken up by the next Parliament.
I do not believe that the Scottish Government is necessarily the best body to take the work forward. Parliament needs to think about how we could take it forward collectively on a cross-party basis. Ultimately, this is about scrutiny and accountability, and that is the business of Parliament. That is how I think that the work should be approached in the next session of Parliament, if the bill does not proceed today.
However, we have an opportunity to take this work forward and we all agree that it should be taken forward, so I urge members to vote for the bill at stage 1 this evening.
15:21
When people submit a freedom of information request, they are not making a political statement. They are usually asking something very ordinary, such as, “Who took this decision?”, “Why was this contract awarded?” or “How was this money spent?” Our responsibility in this Parliament is to ensure that the law behind such requests works, not just in theory but in practice.
It is not disputed that Scotland’s FOI framework needs to keep pace with how public services now operate. The way in which information is created, stored and shared has changed dramatically since 2002. Public services are delivered through increasingly complex arrangements, which often involve arm’s-length bodies, contractors and hybrid organisations. The legislation has not kept pace.
That is why I begin by recognising the work that Katy Clark has done in introducing the bill. She has forced Parliament to confront questions that have been left unanswered for far too long. That in itself is a valuable contribution that deserves acknowledgement, but recognising efforts does not remove our responsibility to scrutinise outcomes.
The evidence that was presented to the Standards, Procedures and Public Appointments Committee was clear on one central point. Although reform is needed, the bill does not yet provide a workable or reliable route to delivering it. The committee was not persuaded that legislating for a general presumption in favour of disclosure would materially change behaviour. It was unconvinced that replacing publication schemes with a broad, proactive publication duty would achieve the cultural shift that is needed. The committee also raised serious concerns about whether the proposed designation powers and enforcement mechanisms were sufficiently developed or practical.
Those are not minor technical points. They go to the heart of whether the bill would improve access to information or would simply create new uncertainty for public bodies and frustration for the public. That is why the amendment in my colleague Sue Webber’s name is so important. It recognises the legitimate desire for reform, while making it clear that the bill in its current form cannot be the final answer. The amendment provides a clearer framework for how reform should be approached and sends a strong signal that the responsibility for introducing comprehensive, workable legislation ultimately rests with the Scottish Government.
Parliament is under real pressure in this debate. There is increasing public frustration about access to information and growing criticism of institutions that appear closed or opaque. In that context, it would be easy to present this debate as involving a binary choice between being in favour of transparency and being against it, but that framing is misleading. Supporting transparency means getting the law right. It means ensuring that reform is deliverable, properly resourced and capable of being implemented consistently across the public sector.
That is why Sue Webber’s amendment matters so much. It allows the Parliament to acknowledge the need for reform while being honest about the limitations of the bill. If it is agreed to, it will strengthen the message that the work must not end here.
Freedom of information underpins trust in public life. That trust is too important to be dealt with by creating uncertainty or delay. This debate should send a strong signal that change is needed, that the Parliament is ready to engage and that, in the next parliamentary session, the Government must deliver FOI legislation that truly works in practice.
To answer Jamie Greene’s question, we will vote for the general principles of the bill at stage 1, regardless of whether my colleague Sue Webber’s amendment is agreed to, because the conversation must continue.
Once again, I thank Katy Clark for her work.
15:25
I thank all members who have contributed to the debate this afternoon, whether I have entirely or partially agreed or disagreed with them.
Richard Leonard made a typically passionate and thoughtful speech. There is no doubt that we will miss Richard in the next parliamentary session—or, rather, the Parliament will miss him; like him, I will not be here. However, the answer to his question about why we could not progress the bill to a conclusion in this session was provided a few moments earlier by the convener, who talked about the need for further consultation on key aspects of the proposals, the speculative nature of the financial memorandum and concerns about the creation of an offence of the deliberate destruction of information.
There is simply not the time to properly work on the bill. It is easy to say that we should find the time, but finding it is a completely different matter. Are members suggesting that we should scrap other business to facilitate the bill and deal with it as a committee of the whole Parliament? What business should we scrap? Are members suggesting that the Parliament should somehow order the Standards, Procedures and Public Appointments Committee to drop everything else that it is currently doing? I suspect that the convener might have something to say about that.
We have certainly heard a change of position from two parties that are represented on the committee. In its recommendations, the committee made it clear that the bill’s general principles should not be supported at stage 1 because it did not
“consider this Bill to be the most effective vehicle to deliver the necessary change”
that is desired. It also recommended that the general principles should not be supported due to the lack of time that is available for the necessary policy development to be completed.
The Government has followed the committee’s recommendation not to support the bill at stage 1 based on its report. However, Sue Webber has taken the unusual step of lodging a reasoned amendment to point out the lack of time. Therefore, I am slightly confused as to what the Conservative and Labour parties—which are both represented on the committee—want to do. They now seem to want to agree to the bill at stage 1, but they acknowledge that there is insufficient time for the bill to be developed in the way that is necessary. To be clear, if we agree to the bill at stage 1, it will go forward to the next parliamentary stage.
I note that committee members are encouraged to leave their party hats at the door. That point notwithstanding, we are, as always, being asked to consider the general principles of the bill. If the Parliament subsequently runs out of time, that is another matter. Would it not send an odd signal to vote against the bill while suggesting that our successors in the next session should take up the issue? I find that strange.
I recognise Daniel Johnson’s point. However, we are five weeks out from the conclusion of the parliamentary session. One member spoke about the public looking in on the Parliament. The action that some of the parties seek to take would raise an expectation that absolutely cannot be fulfilled. I contend that it is more sensible, pragmatic and practical for all of us—as we have done today, because there is more that unites us than divides us on this issue—to come forward and say, “We recognise that there is insufficient time to use this vehicle, which the committee has agreed is not the appropriate vehicle.”
Will the minister take an intervention?
Will the minister give way?
I offer my genuine apologies, but I have very little time.
We should come together to acknowledge that there is an opportunity in the next session of Parliament—whether the process is led by the Government or, as Mr Whitfield has innovatively suggested, a committee of the whole Parliament—to point the way forward. We can recognise the shortcomings of the bill as well as its positives; there is some good stuff in the bill, as the Government acknowledged in its response to the committee.
I am very conscious of time. Freedom of information is only one part of how we can build a more participative democracy in Scotland. The values of openness and participation certainly require the wide provision of official information. Those values also entail Government and public services being approachable, responsive and accountable to the people they serve. Throughout this session of Parliament, the Scottish Government has sought to progress those wider values through its open government agenda. As someone who started the session as a minister, took 14 months out and then returned to Government, I can attest to the progress that has been made on that.
In the light of the committee’s recommendation, the Scottish Government will still be opposing the bill today. However, that does not detract from our commitment to robust FOI law in Scotland or from our openness to engagement on a cross-party basis on its further development.
I call Katy Clark, the member in charge of the bill, to wind up the debate.
15:30
This Parliament was founded on the principles of accountability, openness and transparency, and the bill gives us the opportunity to build on those principles today. I have outlined the process that led to the provisions that are in the bill that we are considering, which I believe is the correct starting point.
I thank the committee for the scrutiny that it undertook in preparing its stage 1 report, all the stakeholders who engaged with the process, Carole Ewart from the Campaign for Freedom of Information in Scotland and those in my office for their work on the bill. I also thank the Scottish Information Commissioner, his team and all the former information commissioners who engaged with the process.
The only issue that is before us today is whether we agree with the general principles of the bill at stage 1. I have listened carefully to members’ speeches, and there seems to be a consensus that the public’s right to information is important, and that there must be accountability on public service delivery and transparency on the use of public money.
However, we must recognise that our current freedom of information regime has been in place for more than two decades and that the public, campaigners, organisations and Government have all experienced how it works, where it works well and what needs to change. That is why the current Information Commissioner and his predecessors support the bill. That is why the bill enjoys the support of so many organisations, and it is why so much of the evidence that was submitted, including from trade unions, care home relative campaigners and the third sector, supported the bill.
I will respond to some of the points that were made about specific provisions. On new designations, I agree with Daniel Johnson that this debate is also about the kind of Parliament that we want to have. It would not have been appropriate to put more detail on the process for designation in the bill, as that would be a matter for Parliament’s standing orders, but we must say that the role of this Parliament is to hold the Scottish Government to account. Given that the Scottish Government has failed for more than two decades to keep freedom of information where it should be, it is appropriate that more power is given to the Parliament and its committees.
The idea of creating a freedom of information officer role came from freedom of information officers. I know that, like his predecessor, the minister attends the annual events that many freedom of information officers go to, so he will have heard them explain their belief that the creation of such a role would give them the power to enforce freedom of information in their own organisations. Many of them are data protection officers, and they believe that the bill, which mirrors the provision of the data protection regime, would enable them to get their organisations to comply with the law.
Section 18, which would create a new criminal offence, is designed to deal with serious situations. The Information Commissioner has said that it would enable them to do their job better, where information is deliberately destroyed with the intent to avoid the law.
The vast majority of the public support the key principles of the bill, which is why we must agree to its general principles today. The way in which public services are delivered has changed significantly since the 2002 act. Multinationals such as Serco, G4S and Mitie are now providing public services and in receipt of public funding, and we no longer have the information rights that we had in relation to those services in 2002. If those services were still being provided by Government, they would be subject to freedom of information laws.
The Scottish ministers have consistently failed to come forward with legislative proposals in this area. When I met the minister on Thursday, he said, yet again, that, in his view, legislative change was not needed.
As I outlined in my opening speech, the committee has indicated its support for many of the provisions in the bill. I am disappointed by the amendment to the motion that has been lodged. I believe that the Parliament should send a very clear message that we will vote—
Will the member take an intervention?
I am not sure whether I can, because I am over time.
You can, provided that it is very brief.
The amendment will not prevent the bill proceeding, as many members across the chamber have remarked. It simply makes it clear that we have a very challenging timeline. It is practical and commonsense—that is all over, but never mind.
The decision that is before the Parliament today is on the general principles of the bill. [Interruption.] The Parliament should send a clear message—the strongest message—that it supports legislative reform of the freedom of information regime. That means clearly supporting the general principles of the bill today.
That concludes the debate on the Freedom of Information Reform (Scotland) Bill at stage 1. There will be a brief pause before we move on to the next item of business to allow for a changeover of front-bench teams.
On a point of order, Presiding Officer. I will not take up much time as there is a lot to get through this afternoon. It has become clear over the course of the debate that there is confusion about what will happen to the bill at the next stage. If the general principles are agreed to, as seems to have been suggested by members, and the reasoned amendment is also agreed to, which calls for it to be considered in the next session of Parliament rather than this session, will the bill progress to stage 2—yes or no? It is entirely unclear. I wonder whether the chair could offer some advice on that.
I can confirm that the bill would go forward in the event of the amendment being passed. The only decision that Parliament can take at stage 1 is to vote against the general principles of the bill or to allow the bill to proceed. It is then a matter for the committee and Parliament what happens thereafter.
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