Hansard

Section 1 is important and there are a lot of amendments, so I ask members to bear with me. The Government amendments in the group address concerns that the keeper should involve authorities and other stakeholders when preparing guidance and the model records management plan. They will require the keeper to consult and to have regard to views that are expressed before issuing those documents.Amendments 31 and 56, in the name of Ken Macintosh, would add explicit references to contractors’ records in a number of provisions and would limit the keeper’s power in certain areas. I am concerned that some of those references could have unintended consequences and that others could be difficult to work with in practice. I will first address the issues about contractors before addressing the amendments on consultation.Under section 1(3), the keeper must issue guidance to authorities about the form and content of records management plans. Under section 8, he must also issue a model records management plan. Guidance that is issued under section 1(3) and the model plan already have to cover contractors’ records, because those are a form of public record and each authority’s records management plan will have to cover all the authority’s records, including its contractors’ records.In practice, RMPs will need to set out how contractors’ records are to be managed. That is likely to be closely based on the contractual terms that are agreed between the authority and the contractor. The keeper must return a proposed plan if it fails to make proper arrangements to manage contractors’ records. That might happen if, for example, the plan suggested that contractors’ records should be retained for an unreasonable period.Amendment 31 would require the keeper to include in the guidance“information on how such plans will relate to functions delivered on behalf of authorities by contractors.”Amendment 56 would require the model records management plan to“cover the relationship between an authority’s records management plan and that of a contractor carrying out the authority’s functions.”There is a delicate balance to be struck. Although the guidance and the model plan will cover contractors’ records, I do not consider it appropriate for the keeper to go further and to seek to dictate how authorities and contractors regulate their relationships. Amendments 31 and 56 would result in the keeper producing an extraordinary amount of guidance that would dictate the relationship between authorities. It is important to reflect that the issue is not just about child care in the voluntary sector. It would require in law guidance that dictated the contractual relationships of authorities including prisons, health boards and the police. The list of authorities that are covered in the schedule is extensive.As drafted, the bill places the onus on authorities to manage their records. It does not impose duties on contractors and nor does it interfere with, or give the keeper power to interfere with, existing relationships between public authorities and contractors. The terms on which a contractor may carry out functions on behalf of an authority are for those two parties to agree separately.As the guidance and the model RMP already cover contractors’ records, I am concerned that amendments 31 and 56 seek to go further and would require the keeper to instruct authorities and contractors on how their relationship should work. That runs contrary to the arguments that Elizabeth Smith made earlier. That situation could be seen as the keeper dictating contract terms and interfering with the freedom of authorities and contractors to negotiate their contractual relationships. That is against the light-touch intentions of the bill.In addition, amendment 56 refers to the records management plans of contractors, which is misleading. The bill does not require contractors to have records management plans although, as Ken Macintosh said, many do. In practice, contractors might decide to have plans, but that is a decision for them and will not be a result of the bill. Instead, an authority must ensure that records that relate to functions that are carried out on its behalf by contractors are managed in accordance with the authority’s plan.Rather than dictating contract terms, I intend the keeper to facilitate discussions between authorities and contractors about the management of contractors’ records. The discussions on those issues will take place in the newly constituted stakeholder forum. Detailed contractual terms will still be for contractors and authorities to agree, but the keeper will be on hand to provide advice and assistance on the management of contractors’ records. I therefore invite Mr Macintosh to seek to withdraw amendment 31 and not to move amendment 56.I turn to amendments 2 and 16 to 18, which relate to consultation. Amendments 2 and 18 will require the keeper to consult on the guidance that is issued under sections 1(3) and 9. He must consult the authorities that he considers will be affected by the guidance and such other persons as he considers appropriate. That will cover consultation of stakeholders, including contractors. The amendments also require the keeper to have regard to the views that the consultees express, and they clarify that the keeper may issue different guidance in relation to different authorities, where appropriate.Amendments 16 and 17 make similar provision in relation to the model records management plan. They require the keeper to consult on drafts of the first model plan and revised versions. He must consult each authority on the first model plan, because each will be affected but, after revisions, he must consult only authorities that he considers will be affected. As with amendments 2 and 18, he must also consult such other persons as he considers appropriate, which again includes stakeholders and, importantly, he must have regard to the views that are expressed.11:00 Amendments 2A, 16A and 17A would amend amendments 2, 16 and 17 to provide an additional duty on the keeper to consult bodies representing contractors on the guidance under section 1(3) and on the model plan. I am concerned that the duty to consult contractor’s bodies would be difficult to operate in practice. It would require the keeper to identify contractors for more than 200 bodies, to find out which bodies represented the contractors and then to decide whether they need to be consulted. The amendments would require consultation of such bodies representing contractors as the keeper considers will be affected by the guidance or the model plan, but the bill does not place any duties or obligations directly on contractors and those bodies will not be obliged to have regard to the guidance or the model plan. As a result, they will not be directly affected by the guidance or the model plan and the keeper will not be able to assess whom to consult. There is a danger that these amendments to amendments would add lots of bureaucracy but add no value to front-line services, which is a concern that the committee expressed at stage 1.That is not to say that those bodies would not have an interest in the guidance and the model plan—Ken Macintosh is right. They would clearly have an interest, in the sense that the authorities that they deal with would have to have regard to the guidance and the model plan. That is why amendments 2, 16, 17 and 18 already provide for contractors’ organisations to be consulted by requiring the keeper to consult“such other persons ... as the Keeper considers appropriate”.I therefore invite Mr Macintosh not to move amendments 2A, 16A and 17A but to support amendments 2, 16, 17 and 18.Amendments 39 and 43 would amend section 4, which deals with the keeper’s role in agreeing to plans that are submitted by authorities. Amendment 39 would replace the keeper’s power to make a separate determination about the form and manner of the submission of particular plans with a requirement to comply with guidance under section 1. Section 4(2) is intended to give the keeper flexibility about the administrative arrangements for the submission of plans. It is not a power to determine the content of plans and could not be used as a means of placing undue burdens on authorities. Replacing that with a reference to section 1 guidance would reduce the keeper’s ability to make individual decisions, in conjunction with authorities, about what was appropriate in different cases.Amendment 43 would amend section 4(4) by requiring decisions about whether a proposed plan made “proper arrangements” to be based solely on guidance. The concept of proper arrangements is key to the keeper’s decision about whether to agree any records management plan. However, it would be inappropriate to rely solely on guidance to assess whether a particular plan made proper arrangements for the records of a specific authority. Ken Macintosh’s amendments would diminish the keeper’s ability to be responsive to individual authorities’ needs—another theme that came through at stage 1. Instead, the keeper should take into account the general guidance and model plan and the individual characteristics of the authority. Section 4(5) already requires the keeper to take the guidance and model plan into account. Amendments 4 and 5, which we will come to in a later group, will also require the keeper to take into account the individual characteristics of an authority and any representations that are made by it.Together, those provisions will ensure that any decision about whether a plan makes proper arrangements will be based on the correct combination of general guidance and individual circumstances. Like amendment 42, amendment 43 would prevent the keeper from making the necessary case-by-case assessment. If the amendment were accepted, it would suggest that the keeper ought to adopt a one-size-fits-all approach in deciding whether to agree or return records management plans. It is important that the keeper retain the power to make case-by-case decisions.Amendment 58 seeks to remove section 9, which allows the keeper to issue guidance about authorities’ duties under the bill and requires authorities to have regard to it. The power is likely to be used to promote examples of best practice and generic records management tools that are drawn up by sector professionals, as well as to give guidance on the reviewing of records management plans. It is clear from responses to the original consultation and from discussions with stakeholders that the dissemination of guidance will be crucial to successful implementation of the bill. The power to issue guidance under section 9 is a key part of that, which is why we are concerned about the proposal to remove it. In its stage 1 report, the committee was supportive of the need for guidance, but amendment 58 runs counter to that shared intention. Any guidance that is issued under section 9 or any other sections will be developed in partnership with stakeholders. Amendment 18 will also require the keeper to consult before any such guidance is issued. Removing section 9 would not prevent the keeper from issuing non-statutory guidance about authorities’ duties, but they would have no obligation to have regard to it. That would lead to inconsistency of practice when the intention is to develop consistent standard practice across sectors.I know that this has been an important area of discussion and debate, but I hope that I have been able to explain the problems that would arise from some of the amendments. Accordingly, I ask Ken Macintosh to seek to withdraw amendment 31 and not to move amendments 2A, 36, 39, 43, 56, 16A, 17A and 58.