Two cases of culpable homicide (1)
Kenneth Roy
Two cases of culpable homicide (2)
Bob Cant
After 10 years of freedom of information legislation in Scotland, you would think that we could agree what the purpose of the legislation is. However, what is obvious to some is apparently rather misty to others, as was discovered at a debate in the Scottish Parliament in December.
Some MSPs do not want the ‘purpose’ set in law as that would require them to agree that FoI should be for accessing information on our public services and that government and public authorities must maintain and extend the public’s enforceable right to that information even when non-public bodies provide those services. The debate around a purpose clause has provoked some to show that they prefer to undermine the operation of FoI in Scotland.
During the debate on improving Scotland’s otherwise impressive freedom of information laws, a number of disagreements over timetables and tactics have unsurprisingly arisen between those campaigning to address the major problem (the increasing number of public services being delivered by organisations not covered by the legislation) and those (largely in the Scottish Government) who think that technical amendments should take precedence.
This is par for the course and, as far as it goes, to be expected. And this month the debate on the Government’s FoI (S) Amendment Bill should be finally resolved as it reaches stage 3 and goes back to the parliament.
All sides in the debate have been keen to be publicly seen to be on the side of effective freedom of information procedures, and to pronounce their commitment to the principles of FoI. Indeed, the Scottish Government has gone so far as to make public its six principles.
In the debate on amendments in the finance committee – the committee to which the bill was unaccountably referred – an odd debate ensued. An amendment, suggested by Elaine Murray MSP, and originally drafted by the Campaign for Freedom of Information in Scotland (CFoIS), was put forward to clarify that the purpose of the law was to allow information about our public services to be accessed by us, the public. Although this doesn’t currently form part of the law, it was both originally proposed in the first-ever consultation document, ‘An Open Scotland’, which said the law should cover ‘all Scottish public authorities and service providers’, and is referred to in the six principles which state that FoI is ‘an essential part of open democratic government and responsive public services’.
However both the cabinet secretary (now Nicola Sturgeon MSP) and the deputy convener of the committee (John Mason MSP) argued against such a clarification. Their slightly different but related reasons being that it might have ‘unintended consequences’ (NS) or ‘change the fundamental ethos of the legislation’ (JM). The amendment was not adopted.
These must rank as some of the most bizarre arguments against transparency ever heard. The original aim of introducing FoI was (as outlined above) to allow a statutory right of access to information on our public services. It failed to state this clearly in the wording of the act (which specifically covered information held by public authorities). It takes a huge speculative leap to envisage the clarification of this purpose ‘changing its fundamental ethos’.
Certainly there is a danger to the current law’s ‘fundamental ethos’. It is that the rapid move away from direct publicly-provided public services has eroded our rights to ask what is being done with our money. Already, social housing tenants in Dumfries and Galloway, Inverclyde and Glasgow are barred from using freedom of information to get access to information from their landlords, unlike those who are still local council tenants. Many councils have also handed over leisure and cultural services to ‘trusts’, some of which are not subject to the law. Trunk road maintenance, prisoner transport, and at least one prison, are run by private companies – several of which also contract some school and hospital maintenance. All such services are no longer covered by FoI.
In addition to the concerns over this expressed by the CFoIS, strong worries have been expressed by the Scottish information commissioners (both past and current) and some indication of the problem was pointed out by the Audit Commission who, a little while ago, found over 130 arms-length organisations running our public services.
The finance committee know this – indeed they issued a strongly-worded report indicating that they were unhappy with this erosion, and asking the cabinet secretary to ‘detail how and when the Scottish Government will take forward its consideration of the extension of coverage’ – yet when faced with a useful suggestion (already common in the FoI regimes in many other countries) they created artificial threats.
Of course, there is an additional way to deal with this – swift and regular use of section 5 of the act to keep updating the coverage could have obviated the need to introduce this purpose clause. Unfortunately it has never happened in the 10 years since the act was passed. Suggestions from the Scottish Government that we can start adding organisations by 2016 and then report every three years does not suggest any urgency in plugging this serious loophole.
A purpose clause will be reintroduced as an amendment in the Scottish Parliament debate this month. Will the defenders of the six principles back it?
Chris Bartter is a member of the Campaign for Freedom of Information in Scotland. Prior to his (semi-) retirement in 2010, he was communications officer for UNISON Scotland for 20 years. He now works freelance for a number of arts and campaigning groups. and blogs at http://captaingrumping.blogspot.co.uk
Photograph by Alan Wylie
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