Meeting of the Parliament 17 February 2026 [Draft]
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.