Today brings a key decision for our Freedom to ask for Information

The Campaign for Freedom of Information
has driven the campaign

Today (Wednesday) a key opportunity presents itself for our Scottish Parliament to take a second step towards an opener, more transparent Scotland. Its Finance Committee, having taken one step in that direction, receive the Scottish Government’s Freedom of Information (Scotland) (Amendment) Bill back to discuss submitting amendments to its provisions. The one step forward they have already taken is to issue a report at stage one criticising key aspects of the original legislation - the lack of any concrete proposals to deal with the crucial problem of the increasing delivery of our public services by non-public organisations, and the Amendment Bill’s attempt to ape the ill-considered Westminster exemption barring any enquiry into communications with the Monarch or her heirs (the so-called ‘Royal’ exemption).

High Ground?

While the public pronouncements of the Scottish Government have consistently sought to take the accountable high ground in the freedom of information (FOI) debate - they even have their ‘Six principles of FOI’ rapidly moving deeper into the bowels of the SG website - their record in practice has left some observers wondering what the real agenda is.

And this isn’t a reference to high-profile controversies like attempting to take the Commissioner to the Court of Session over revealing whether legal advice on the EU and an independent scotland, or over the release of the figures they had commissioned on reform of the Council Tax. The problem this time is that a clear opportunity to amend major flaws in the law offered by the introduction of an Amendment Bill, has so far not been taken; a huge disappointment to campaigners and practitioners.

Ten years of no use

Despite the concern expressed ever since the original Act was passed - concern that delivery of public services by non-public bodies removes them from the public scrutiny intended in that Act - governments since have neither used the provisions in the law to ensure such bodies were covered, nor have they made any attempt to change the law to create automatic coverage.

The announcement of an Amendment Bill by the new majority government gave campaigners hope that the consultation on designating some non-public bodies the previous minority administration had started and then dropped, would be revived. But no such proposal emerged.

The Bill that was deemed worthy of Parliamentary time introduced a small number of worthy improvements it is true, but the claim that it would ‘ensure that the legislation remains fully effective’ has a hollow ring to it. The Finance Committee’s Stage One Report outlined much of the evidence outlining why variation of service delivery is eroding the effectiveness of the legislation.

Committee Opportunity

Nicola Sturgeon - her withdrawal of the
Royal exemption is welcome

The Committee this morning has a number of important amendments to the Amendment Bill to consider. It is to be welcomed that the government has seen the sense in deleting its new ‘absolute’ Royal exemption. However tackling the major flaw of the erosion of coverage is still not being done. Even the review of Section 5 that his proposed is only scheduled to be done every three years, and not start until 2016! As the Scottish Information Commissioner says “given that the section 5 power has now lain dormant for ten years, I would question whether it is appropriate to delay the laying of an initial report for a further three and a half years, until June 2016.”

Fortuitously, a series of amendments have been laid before the Committee, by one of its members, Elaine Murray MSP. While there may be a technical issue with one, overall they would mean a huge step towards re-establishing Scotland’s FOI regime as a leading example to other countries, and a powerful utility in bringing openness and transparency to our public services. Let’s hope our representatives on the Finance Committee support them.

Did Freedom of Information troubles tip the balance in EU advice U-turn?

In all the welter of comment on the current ‘scomnishambles’ or ‘advicis’ crisis in which the Scottish Government have embroiled themselves, I haven’t yet seen an analysis that looks at whether the withdrawal of their appeal to the Court of Session has a Freedom of Information rationale behind it, and in particular the role of the Deputy First Minister in the decision.

Nicola Sturgeon, wanting to
 avoid a fight on two fronts?

It is of course, entirely possible that the sudden withdrawal of the Scottish Government’s appeal against the Scottish Information Commissioner’s ruling, was due to the new Constitutional Supremo (Nicola Sturgeon) looking at the contradictions in their position solely from a Referendum Campaign perspective and deciding to ditch what was very likely to have become another failed appeal. After all the track record of the Scottish Government vs the (respective) Scottish Information Commissioners does not show a good strike record for the SG. 

As a lawyer, Ms Sturgeon cannot have relished going to the Court of Session to argue that the Government shouldn’t have to tell anyone whether they had obtained legal advice or not (not, you understand, what that advice was - the refusal to reveal that was already accepted by the SIC). Especially as it appears, they had not!!

So is it then a coincidence that Nicola Sturgeon, in the reshuffle, also inherited the responsibility for Freedom of Information? Or that this burden currently involves her trying to pilot a widely-criticised Amendment Bill through the Scottish Parliament? Or did the additional contradiction of trying to claim to be ‘improving’ the FOI legislation, while taking the Information Commissioner to court, add the final straw to this particular camel’s back?

Indeed the Amendment Bill itself isn’t getting the plain sailing that was envisaged by the Minister who introduced it (Brian Adam MSP). It has been widely criticised by a number of organisations including the Campaign for Freedom of Information in Scotland, the STUC and the Commissioner herself, and is shortly due to be debated at Stage 1 in the Parliament. The Finance Committee is currently considering its Stage 1 report. By the look of the evidence sessions, the new FOI supremo got a much harder time than her civil servants had prepped her for - and from some of her own side! 

The SNP reshuffle of committee appointments, hasn’t assisted the Bill’s progress much, although Bruce Crawford’s appointment onto Finance is widely seen as an attempt to shepherd the Bill through. Interestingly the other new SNP appointment is Jean Urquhart MSP. Her commitment to openness is well-known. Will her recent resignation from the SNP group mean the shortest ever residence on a parliamentary committee?

At the bottom of this row are three issues: 

1. That the Bill does not address the main problem of FOI - the increasing use of non-public bodies (private contractors, housing associations, voluntary sector bodies and arms-length organisations - ALEOs) to deliver public services, resulting in the removal of FOI rights from the public.
2. How the law should ensure that such bodies are automatically added.
3. The attempted introduction of a further ‘absolute’ (ie non-challengeable) exemption covering communications with the monarch or the heir to the throne.

Given that the previous (minority) SNP government had at least started to address the first two issues when they dropped it prior to the last election, campaigners were surprised and disappointed that when the now majority, government found time to introduce new legislation, it failed to deal with them.

After FOI defeat over the financial implications of Local Income tax; the embarrassment of the row over disclosing whether the Scottish Government recommended Brian Souter for honours, and now the climb down over EU legal advice, it seems that Nicola Sturgeon is well-versed in the dictum - if you’re in a hole, stop digging! 

"I'll do it again, you know."

However her boss today claims that he would again refuse to reveal whether he had advice in the future. A statement that appears only too obviously to be a return to the bad old days of arrogance that Messrs Pringle & Co have been trying to move him away from. It is also a very different approach from his deputy. So much so, that it raises speculation about who took the decision to drop the appeal, and whether both the FM and the DFM agreed with it! I guess any such division won’t be revealed either!

In these circumstances it also becoimes interesting to watched the progress of the FOI Amendment Bill. The Stage 1 report is in discussion, a parliamentary debate approaches. Might there still be twists and turns ahead in what the Government obviously hoped would be a technical, tidying-up bill?